MEDICARE AND PROFESSIONAL SERVICES REVIEW

Medicare has put dentists on notice about compliance with the CDBS. Ensure you are compliant particularly with consent and records.

It is directed at Health Practitioners and the responsibility for compliance cannot be delegated. This means that although you ask others to complete forms and keep records, ultimately, this is directed at you as a provider ( that is your provider number issued by Medicare, not your registration)

Dental practitioners will have received a letter this month from Medicare dated on or about the 22^nd October 2015, relating to the changes to the laws for Child Dental Benefit Schedule Audits.

Medicare has a section that prosecutes and investigates dentists who breach the laws in relation to the Child Dental Benefit Scheme (CDBS), and as you will see, they are aligning the CDBS with rules that apply to other health practitioners. This means that a practitioner is audited, the practitioner will be compelled to provide documents to substantiate the services and you may also be referred for professional services review. These changes are now some twelve (12) months old and applies to practitioners, whether they provide services or bill for them or other ancillary practitioners.

This means in real terms, that dentists should have very good clinical records to substantiate their claims. The penalties include repayment of a benefit but ultimately, a sanction of removing the ability to bill under the CDBS might be anticipated.However an adverse finding would not assist with registration renewal, and practitioners may be referred to AHPRA for investigation.

Once audits are performed, the Practitioner Review Program can be commenced and the director of the PSR may be asked to review the provision of services.

It is important for practitioners to have a look at both the voluntary acknowledgement of incorrect payments form and also to be generally aware of their responsibilities, which are on the government website.

Practitioners might self audit a sample of patients and decide if they are compliant. If you think there is an over payment, or non compliant payment consider completing this form.

It is important that practitioners who do use the CDBS are aware that there will be audits and if disparities are found then, as ever, it is important for dental practitioners not to attempt to deal with it themselves. They should contact their indemnifier and seek assistance from their state dental association. If however, as has happened in the past, some associations and indemnifiers do not cover the costs involved in audits then practitioners need to get appropriate, expert and relevant legal advice before they commence any correspondence whatsoever with the Department of Human Services.

I suspect that the areas that the audits will focus on are these areas:

Consent

You must discuss and obtain consent from the patient, or their parent or guardian, for basic dental services and advise them of the associated costs. This must be completed:

• on the day and
• in writing , and
• before the end of the visit.

How you bill your patient will determine which consent form they must complete.

For privately billed, or non-bulk billed services, you must have your patient or their parent or guardian provide consent at each visit. You can do this by getting them to sign the Department of Health’s Informed Financial Consent – Non-Bulk Billing Patient Consent Form

For bulk billed services, your patient or their parent or guardian only has to provide consent on the first visit each year. If your patient is seeing multiple dentists within a single practice, they must complete a form for each dentist they visit. You can use the Department of Health’s Informed Financial Consent – Bulk Billing Patient Consent Form

Record keeping for the Child Dental Benefits Schedule

You must maintain adequate records for audit purposes for 4 years from the date of service. You must keep:

• patient consent forms, the type of form depends on how you bill your patient
• clinical notes including notes about the particular tooth or teeth a CDBS service relates to, and
• any other relevant documents, such as itemised accounts or receipts showing that the claimed services were provided

Practically, practitioners need to develop systems such that electronic copies of these consent forms are scanned in and attached to the patient file.

Brad Wright

LLB (Hons) GD Legal Prac MBA FFDACLM

FPFA FICD FADI

October 29 2015

In a case last year, HCCC v Dr BARTOLAZO [2013] NSWDT 4 (9 August 2013), the HCCC found that not declaring a criminal record amounted to professional misconduct. It is important to for registrants to know that criminal charges need to be disclosed as well as convictions.

In another matter, Health Care Complaints Commission v Dr Saeid Saedlounia [2013] NSWMT13,  Dr Saedlounia had provided misleading information, in his curriculum vitae, for the purpose of obtaining employment as a doctor. The Tribunal said,

“The curriculum vitae……….contained false and misleading particulars of his experience in medical practice, and this was known to Dr Saedlounia. The Tribunal is satisfied to the required standard, that in proffering his curriculum vitae with such misleading content, Dr Saedlounia’s conduct amounted to improper and unethical conduct related to the practise or purported practise of medicine.” (para 88)

Registrants need to be vigilant about disclosure and should seek advice from professional organisations or from appropriately experienced lawyers.

Brad Wright

January 1st 2015

Why anyone would perform endodontics without rubber dam is a mystery. In an article by Professor Stephen Cohen and others , this issue is expertly addressed. I wish every dentist would read it. Every lawyer will who works in that area….

In the December ADJ, an article by Dr Raymond Lam  from Western Australia discusses litigation in dentistry with a broad and interesting article about litigation, recent law and how it relates to CPD.

It is worth a read. However it discusses only one limb of modern dental ‘litigation’ – personal injury – and does not address regulatory prosecution which is in the writer’s opinion equally if not of more significance to the practice of the dental practitioner. This is not a criticism.

(Dr Lam discusses “informed consent” a term specifically disavowed in this country. Rogers and Whittaker is still is a valuable lesson for dentists concerned about telling patients about necessary and appropriate warnings. I am similarly not sure that “standard of care” – an term from the United States – is helpful or has any relevance here.)

A good article, summarising some very important cases and worth a read: and the cases are always easily accessed though Austlii and Jadenet.

Brad Wright

December 20 2014

In Bentley v Dr Nguyen [2014] NSWDC 231, a plaintiff  is claiming damages from a dentist and two other defendants. In circumstances where the treating defendants and also all experts to be called reside in Sydney, the matter has been transferred for directions from Newcastle to Sydney.

In a recent Victorian case, at the VCAT found against a GP orthodontic general dentist. Practitioners performing GP orthodontics ought to read this s case and also be aware of findings to avoid complaints and Board adverse findings.

This is an administrative law case dealing with state and local government powers to fluoridate the water supply.

In essence the application to prevent the  community health measure was dismissed.

At [63] the Court Stated:

The likely significant affects that the Applicant identifies as being those required to be examined and taken into account are claims of risks to human health by the addition of fluorine to the water supply, coupled with the reliability and acceptability of the equipment designed, installed and operated for dosing the water supply with fluorine. Those affects on human health or matters related to impacts on health that are claimed not to have been addressed by the Council and which also demonstrate significant affect on the environment are identified as being:

(i) expected and potential biological effects on humans who ingest fluoridated water;

(ii) impacts of fluoridation on persons who may be more sensitive, including bottle fed babies, persons using other fluorine medication, persons with relevant illnesses and pregnant women;

(iii) relative risks and benefits associated with different dosing methods and different fluorine compounds;

(iv) expected potential impacts of chemicals which accompany the fluorine compounds;

(v) the incidence and effects of fluorosis;

(vi) the risk and effects of an overdose of fluorine;

(vii) alternatives to the fluoride dosing facility;

(viii) bioaccumulation; and

(ix) available relevant peer review of academic literature directed to affects.

At [152] The Court stated:

These are examples of statements of “significance” that appear in several documents. The Applicant relies upon them to sustain a submission that the fluoridation of the Eurobodalla Water Supply will have a significant affect upon the environment. I do not accept that, read in isolation, such statements are of a kind that demonstrate the engagement of s 112 in assessing the activity. The use of derivatives of the word “significant” in describing a particular benefit or detriment does not, to my mind, equate to a significant affect upon the environment as directed by s 112.

The Applicant relied upon the evidence of Dr Andrew Harms, a dental practitioner practising in Adelaide, who held a bachelor’s degree in dental surgery from Adelaide University. His tertiary education commenced in the field of biochemistry and zoology with a particular interest in toxicology. In addition to practising dentistry he is a part-time clinical tutor in the Faculty of Dentistry at the University of Adelaide. While not opposed to the topical use of fluoride by dental practitioners, he identified a number of collateral effects from the addition of fluoride to a public water supply that include fluorosis, delayed tooth eruption and the retention of fluoride in the body ingested from fluoridation of public water supplies when the health consequences of such ingestion are said to be unknown. He makes reference to literature that supports his opinion as to these collateral effects.

Dr Harms was a member of the Australian Dental Association from 1978 to 2007. In 1996 he was president of the South Australian branch of the Australian Dental Association. He is no longer a member of the Association, one reason for which, as I understand his evidence, being that he does not support the policy of that Association favouring fluoridation of water supplies.

The Council relies upon the evidence of Emeritus Professor Andrew Spencer who was for some time the Professor of Social and Preventative Dentistry in the School of Dentistry at the University of Adelaide and also the Director of the Australian Research Centre for Population Oral Health within that University. He has degrees from the University of Melbourne including a Master of Dental Science in Childrens and Preventative Dentistry, a Master of Public Health degree from the University of Michigan and a Doctorate in Philosophy from the University of Melbourne, all directed to aspects of dentistry. He established the Dental Statistical Research Unit within the University of Adelaide, the role of which is said to be “to improve the oral health of Australians through the collection, analysis and reporting of information on oral health and access to dental care, the practice of dentistry and the dental labour force in Australia.”

Dr Harms’ affidavit evidence is very detailed, containing a substantial volume of statistical material responding to the evidence of Dr Spencer. In essence, he disputes each of the claims made by Dr Spencer. His conclusion is expressed at [104] of his affidavit in the following terms:

“Research conducted with colleagues at the [Australian Research Centre for Population Oral Health] provides detailed and consistent evidence that exposure to water fluoridation is effective, that is there is an association with lower caries experience among those with high exposure compared with those with low or little exposure. The size of the benefit is larger for the deciduous dentition of young children (approximately 40-50%) than in the permanent teeth of children and adolescents (20-30%).”

1           The difference between Dr Harms and Dr Spencer is succinctly captured in the joint report that they prepared. That report demonstrates disagreement as to the reliability of statistics to support their competing theses. While Dr Harms referred to limited data to support the views that he had expressed, Dr Spencer referred to what he described as “formal statistical analysis of appropriate data” to identify the benefit of exposure to water fluoridation among Australian children, young adults and adults. By reference to that data, Dr Spencer maintained that the difference in eruption time of permanent teeth by exposure to fluoridated water was minimal, supported in his oral evidence by reference to data that tended to demonstrate that the difference in eruption time appeared, at most, to be a difference of months. He also maintained that fluoridation may reduce malocclusion that results from the premature loss of deciduous teeth.

2           The joint report demonstrated disagreement on the “prevalence, severity and impact of dental fluorosis among children”. Dr Harms’ claim to see children affected by fluorosis regularly, asserting that it is “widely accepted” that medium to severe fluorosis occurs in 3% to 5% of the population whose water is fluoridated. However, when challenged on that statistic, he was not able to compare the occurrence of fluorosis in a non-fluoridated water supply given that there are other vectors through which fluorosis occurs, including naturally occurring fluoride in potable water that exceeds the level achieved in controlled addition of fluoride to a water supply that does not contain naturally occurring fluoride.

3           Dr Spencer sought to demonstrate not only that fluorosis occurs in both fluoridated and non-fluoridated water supplies, its prevalence has reduced since the adoption of guidelines on the use of fluoridated toothpaste by young children. He claimed that fluorosis seen in Australian children is predominately in the range of very mild to mild which has no negative impact on the perceived attractiveness of teeth and has no negative impact upon oral health or related quality of life.

4           A further difference raised in the joint report related to the use of fluoridated water to reconstitute infant formula powder. While Dr Harms identified concern about the constituents of imported infant formula powder, Dr Spencer referred both to the advice of the American Dental Association to the effect that infant formula can be reconstituted with fluoridated water and also data available indicating that bottle feeding of infants with fluoridated water in South Australia has not been associated with higher prevalence of dental fluorosis.

5           Dr Harms acknowledged that his opinion as to the detrimental effect of fluoridating the public water supply did not accord with the position in that regard of Commonwealth bodies, including the NHMRC, the position of State Governments, the position of the Australian Dental Association and statutory bodies in both Canada and the United States supporting the retention of fluoridated public water supply systems.

6           The Council also relied upon the evidence of Dr Anthony Brown, a public health physician and occupational physician. Dr Brown is the Associate Dean and Head of the School of Rural Health within the Sydney Medical School at the University of Sydney. He has academic qualifications from both the University of Melbourne and from Monash University.

7           In his evidence, Dr Brown first addressed a number of papers identified in paragraph 29 of the Applicant’s Points of Claim, it being asserted that those articles conclude that there is a significant risk that fluoridation of water to a concentration of 1mg/L is harmful to human health. Apart from reference to these articles in the Points of Claim, the Applicant did not otherwise seek to support these articles by evidence tendered in the course of the proceedings. As a consequence, I do not stay to address Dr Brown’s response to these articles.

1           Dr Brown addresses the evidence given by Dr Harms as to the collateral effect of adding fluoride to a public water supply from the perspective of a public health medical practitioner. Dr Brown identifies skeletal fluorosis as a disease of bones caused by excessive absorption of fluoride from one or more sources. Its prevalence is in countries where water supplies have naturally occurring high levels of fluoride. Those levels exceed the level at which fluoride is permitted in the Eurobodalla Water Supply. He described skeletal fluorosis as being a rare disease in Australia, particularly where water is fluoridated at the concentration level permitted in Eurobodalla. At that level he expresses the opinion that skeletal fluorosis is not a risk. In cross-examination, he agreed that approximately 50% of fluoride consumed by humans is retained within the body and 50% excreted. That which is stored in the body is stored where calcification occurs principally in bones and teeth. Accumulation of some level of fluoride in the body was necessary to achieve the effects observed in teeth. He also indicated that fluoride in the body had some beneficial effect for the treatment of osteoporosis. He rejected the suggestion that at a dosage level of 1mg/L there would be an observable effect on human bones. Levels in excess of 4mg/L would be required to produce some evidence of skeletal porosis.

2           Dr Brown was also cross-examined as to the impact of fluoride on the pineal gland. He was referred to a study emanating from the School of Biological Science at the University of Surrey which Dr Brown acknowledged indicated an accumulation of fluoride in the pineal gland of a small sample of older people. A function of the pineal gland is to synthesise melatonin, an important function for the human body. Ultimately, he rejected any inference that accumulation of fluoride in the pineal glands of children could give rise to a serious risk of injury or disease. His response was to indicate that it had not been established that fluoride in the pineal gland caused any abnormality in function. The Surrey University study showed the presence of fluoride in the pineal gland but its presence was passive with no indication that it was causing a particular problem.

1           Dr Brown also responded to the concern expressed by Dr Harms as to the use of Redox, being the product utilised by the Council as the agent for introducing sodium silica fluoride to the water supply. The Material Safety Data Sheet for that product addressed a number of matters directed to the safe handling of that product. The safety data sheet contained warnings about the toxicity of the concentrated product, indicating that it was listed on Schedule 6 of the Poisons Act. However, he identified the safety data sheet as one directed to people handling the raw product, essentially as an occupational health and safety matter. The data could not be used to extrapolate the effects of the material when diluted in a very large volume of water to the concentration allowed by the approval given under s 6 of the Fluoridation Act.

2           Dr Brown concluded by stating that fluoridation of public water supplies represented:

“an efficient and equitable prevention activity and that the experience in Australia and elsewhere was that fluoridation at the level used in Eurobodalla “is not associated with significant adverse health effects.”

1           The Council also relied upon the evidence of Dr John Chapman, an ecotoxicologist. He holds an honorary scientific fellowship with the Office of Environment and Heritage and is also an adjunct professor at the University of Technology, Sydney. Until 30 June 2012, he was the manager of the ecotoxicology and environmental contaminants section at the New South Wales Office of Environment and Heritage. He holds tertiary degrees including a PhD in Organic Chemistry from the University of Sydney and a post graduate masters degree in Environmental Studies from Macquarie University. Although his affidavit is detailed and includes a number of test results, his conclusions may be expressed as follows:

(i) it is very unlikely that any risk to the environment exists at water fluoridation levels of 1mg/L;

(ii) fluoride occurs naturally in the aquatic environment, especially in sea water, where the average concentration is 1.3mg/L with fluoride exhibiting acute toxicity at levels well above the 1mg/L concentration and chronic effect levels also above that concentration;

(iii) fluoride naturally accumulates in the skeletal structures of marine fish and invertebrates with elevated levels in some marine organisms not exposed to anthropogenic fluoride, with the consequence that fluoridation of the water supply would result in negligible risk from ecological bioaccumulation of fluoride in aquatic organisms;

(iv) terrestrial wildlife would not be adversely affected by drinking fluoridated water at the applicable level;

(v) environmental factors in waters reduce the toxicity of fluoride so that there is very little likelihood of exposure at elevated levels of aquatic life in the Eurobodalla District.

2           There was no evidence led by the Applicant to counter that given by Dr Chapman. His cross-examination, essentially directed to the possibility of heavy metals in the water supply, given the content of the fluoridating agent, did not undermine any of the evidence that he gave in chief. To the extent that he was taken to water quality guidelines, his evidence was that such heavy metals as were identified would be below drinking water guidelines.

3           I then return to the evidence given by Drs Spencer and Harms. Overall I prefer the evidence of Dr Spencer essentially for the following reasons:

(i) his statistical analysis and comparison for the purpose of identifying the effects of fluoridation appeared to be sound;

(ii) Dr Harms acknowledged that apart from some academic writers whose opinions were challenged, those expressed by Dr Harms did not accord with the Commonwealth, State and many international agencies;

(iii) those opinions held by Dr Harms seemed to be informed, at least in some measure, by an anxiety to be heard on those opinions rather than to address, in a measured way, the material that supported the policies adopted by authorities implementing fluoridation of public water supplies;

(iv) the objectivity of Dr Harms was in part diminished by his reference to a news release from the United States Department of Health and EPA on January 2011 as a warning directed to fluoridation, implying support for the thesis advanced by Dr Harms, when a consideration of the news release in its entirety indicated that those agencies supported the continuation of fluoridation of public water supplies because of its benefits but proposed a reduction in the recommended dosage level for fluoride, a proposal that has not yet been adopted;

(v) while bioaccumulation of fluoride within the human body was accepted as occurring within bones and, in some measure, in the pineal gland, the assertion that this led to health problems as a result of fluoride introduced into the public water supply systems at the dosage level intended for Eurobodalla was not accepted as being correct by Dr Brown whose evidence in this regard was not contradicted.

4           Importantly, acceptance of the beneficial effect of fluoridation does not equate to acceptance that it has or is likely to have a significant affect upon the environment. While it certainly reflects a change in the chemical constituents of water hitherto reticulated in Eurobodalla, so also does the general treatment of water though the new Plant which, it will be remembered, commenced operation sometime before the fluoride dosing facility was installed and operated. While the health benefit may be seen to be important, I do not accept that the provisions of s 112(1) are engaged such that “the activity” could not be carried out without the Council first obtaining and considering an environmental impact statement conformably with that subsection 5.

The Applicant has not established that the Council has acted in breach of s 112 of the EPA Act.

This case is interesting only in terms of indemnity contract and insurance. It is about a dentist  who was defending allegations in Queensland and NSW.

The matter of Health Care Complaints Commission v Poole No. 2 [2014] NSWCATOD 67 is a decision of the New South Wales Civil and Administrative Tribunal of 20 June 2014. In broad terms, it related to a dentist and a dispute inter alia in relation to professional fees.

The practitioner in question was an older practitioner working in the western area of Sydney and had done some treatment and was ordered to make amends by paying thirty-two thousand and four hundred dollars ($32,400.00).

He made the point that his remuneration was only forty per cent of that amount and he had only ever received, after laboratory bills, presumably some ten thousand dollars ($10,000.00). The practitioner was not of the view that he should refund the whole amount, but that his employer should also refund the balance between the ten thousand dollars ($10,000.00) and the thirty-two thousand and four hundred dollars ($32,400.00).

The Tribunal considered a range of matters including the ability of the registrant dentist to provide services in the local area and there was evidence that although the dentist had provided a certain form of oral surgery and general anaesthesia, it was not such that the treatment could not have been provided given best efforts by the employing organisation by other practitioners.

Ultimately, the Tribunal found against the respondent dentist and although his personal circumstances were somewhat dire, the court found of course that the fundamental duty is to protect members of the public. As a result, a member of the public had suffered damage in having paid the respondent thirty-two thousand and four hundred dollars ($32,400.00) for treatment and had to have additional costs of repairing that work. Most of the repairing work related to crown and bridge work and the Respondent registrant had continued to carry on treatment, despite the fact that there was a limitation and condition placed on his practice.

The Respondent had a list of non-compliance with directions and was found to be guilty of unsatisfactory professional conduct and professional misconduct earlier in a previous hearing.

Ultimately, at its final hearing, the Tribunal was satisfied that the Respondent Registrant had behaved unprofessionally in respect of his dealings with the entire complaint with a member of the public, his professional body and the entire Tribunal.

The Tribunal further found that the Respondent lacked insight into his conduct and the damage which he had caused to a member of the public and the dental profession as a whole and it was appropriate that the Respondent be deregistered as a dentist. It should be noted that deregistration is not permanent and is not analogous to the being “struck off”. The Respondent was deregistered with immediate effect and would have to reapply for registration after a period not less than one year. Costs were awarded against the Registrant dentist.

This is a unique situation in that it brings up the interesting issue of how much should be paid and the Tribunal apparently did not deal with the issue of who had physically been paid the money, because this was not a civil matter in terms of damages, it was the matter of hearing of a professional disciplinary body.

The interesting question which never to date has been dealt with adequately in many of these decisions about patients seeking redress or compensation is, if professional fees are paid to a dentist. Then the tribunals see this is being attaching to the provider and registrant when the reality is, as most dentists know, the actual person providing the treatment is provided with remuneration of a fraction of the actual entirety of the fees. So the interesting question of whether the dentist who employed the registrant ought to be required to pay the balance of the fees back is unlikely to be addressed in a professional regulatory authority and it may well be only dealt with by a personal injury claim and civil liability being shared between the principal dentist and the employed dentist.

Theories Pty Ltd v Holt and Another [2014] NTSC 40

In a recent decision in September 2014, the Supreme Court of Northern Territory delivered judgement in relation to a dispute in relation to contracts between two dentists, or at least a dentist and a dental company. Much of the judgement is in relation to procedures, but there are some relevant points for dentists or dentists who are employing or employed by dentists.

In short compass, the issues were that a dentist had worked for another dentist, reduced his hours and then resigned and the employing dentist, the principal dentist, had sought to obtain and seek damages from the employed dentist.

This was an appeal from an order of the Magistrate in Darwin.

It is a reasonably short judgement and although it has no import in general or dentists, it is worth reading for the reason that in factual disputes between dentists can get complicated when they are litigated in superior courts.