November 1, 2009
by Rollin M. Matsui, BSc,DDS, LLB
Scenario One: Your patient has just arrived for his dental recall appointment and you’ve now become aware that the patient is one week early; his dental insurance plan won’t pay for such recall examinations unless exactly six months have passed since his last recall appointment. The patient asks you to just change the date on the claim form to “next week” so that the claim form can be submitted and he can be covered. What do you do? What if instead of one week early, the appointment is only one day early. Does it make a difference in what you do?
Scenario Two: You routinely recommend to all your longstanding “regular” patients that they should have complete examinations and a complete set of digital radiographs every three years. Most dental plans cover such services and you see nothing wrong with your treatment. Is this ethical billing?
Scenario Three: In your preventive oriented dental practice, virtually every adult patient receives three units (3 x 15 minutes) of scaling and topical fluoride treatment at their recall appointments. Is this ethical billing?
Scenario Four: You’ve just taken a dental course and been told that periodontal surgical curettage should be performed routinely on your periodontal patients. Not only will you be helping your patients but you will be able to generate considerable income as it is “typically” a covered benefit under dental insurance plans. You have never billed for this procedure before and start doing so immediately with great financial success. You then hear a comment from a periodontist that the efficacy and “need” for periodontal surgical curettage is highly questionable. Have you been billing ethically?
Scenario Five: You pride yourself on taking numerous continuing education courses and utilizing the latest technology in the delivery of dental care to your patients. As a result, with the use of conscious and deep sedation / general anaesthetic techniques, you are able to charge your patient thousands of dollars for dental treatment rendered at one dental visit which far exceeds what you would be able to charge the same patient if you provided the same treatment over multiple visits in a “conventional” appointment regimen. Is this ethical billing?
Other than the first hypothetical scenario offered above, the remaining scenarios contemplate underlying ethical issues related to the billing of patients in everyday dental practice. As I trust the reader will appreciate, Scenario One is actually not an ethical dilemma at all. It is simply a straightforward example of a dentist being asked to commit professional misconduct and the dentist should of course not complete or submit any claim form as per the patient’s request.1
However, Scenario One does have one thing in common with the other scenarios, namely that it is intimately tied to the submission of claims to third parties using procedure codes defined and set out in dental fee guides which dentists commonly use in dental practice.
With respect to the other Scenarios, the underlying concerns are related to the appropriateness of the type, quantity and frequency of the procedure being performed and amount of the fee charged for the service provided.
In my view, the issue rests squarely on not what the dentist is legally permitted to do but what the dentist perceives to be the “right thing to do” when recommending specific treatment and setting a fee for services rendered to his or her patient.
Although there are a number of factors which influence what treatment a dentist may recommend for his or her patients, for the purposes of this article, I propose that one of the chief determinants which affect the ethical choices being made by dentists regarding treatment and fees being charged is the dental fee guide itself. In my view, even well meaning dentists can misinterpret and misuse the procedure codes and suggested fees listed in fee guides without realizing what they have done. This can result in both ethical dilemmas and legal liability for the dentist. The problem may be exacerbated when the patient has a dental benefits plan and the dentist is aware of what procedure codes in the fee guide are a covered and non-covered benefit which in turn affects the dentist’s objectivity in recommending and performing certain dental treatment for the patient.
Most practising dentists are familiar with suggested fee guides. These documents are made available to dentists and list a number of specific procedure codes representing countless dental treatments and services which may be performed by a dentist on a patient.
In a typical dental fee guide, the codes typically describe specific dental procedures and related fees which a dentist could charge his or her patients for a range of dental procedures. The inclusion of a procedure code in a fee guide does not mean that the procedure itself should be rendered and/or that the suggested fee should be charged when the procedure is performed. However, ethical billing issues arise when the dentist elects to perform certain procedures and charge certain fees because the codes and fees primarily enhance the profitability of the dentist’s practice rather than because the procedures and fees are in the patient’s best interests. There is no question that a dentist must have a profitable dental practice, otherwise the business will not be viable; however the ethical issue is how much profit is reasonable on a fee for service basis and/or on a per patient basis in the context of a privileged, limited access, health regulated profession?
Legal problems related to billing can include, but are not limited to, using the wrong procedure code for the treatment performed, not providing the treatment which has been claimed or charged for, providing an unnecessary service and charging a fee which is excessive in relation to the service performed2. Failure to obtain informed consent to treatment including the costs of the proposed treatment can also constitute professional misconduct3.
Ethical problems related to billing can involve using a procedure code which may not fully describe what service was provided, using a code in contravention of the spirit of the applicable fee guide, rendering services and charging fees which are more intended to generate undue profit for the dentist rather than being reasonable and fair in the best interests of the individual patient4.
A fee guide is precisely that, a guide to help the dentist set the fees the dentist wishes to charge for treatment rendered in the dentist’s own dental practice, where allowed by law. A fee guide is not mandatory and where actual dental fees have not been set by legislation, no dentist is obligated to charge the fees recommended in a fee guide. Therefore, there is a degree of freedom among dentists to individually determine what fee they feel they should charge for their dental services. However, once the dentist sets his or her own dental fees, then this becomes the dentist’s fee schedule. The patient can then be told what the dentist’s fee will be for a given procedure.
In principle, this means that a suggested fee in a fee guide cannot be applicable to every dentist since every dentist does not have the same equipment, instruments, furniture, lease expenses for their office premises, leasehold costs, cost of supplies, leased equipment costs, office overhead expenses, staff expenses, qualifications, skills, knowledge and experience as the next dentist, etc. As such, it is possible that every practising dentist / dental practice should have a fee schedule which differs
from that of other dentists depending on the particulars of the dentist’s dental practice. For instance, should a new graduate charge the same professional fee for restorations as an experienced dentist? Is the patient receiving the same value within the same practice from a recent graduate vs. the senior principal dentist? Typically, fee guides do not clearly stipulate the various factors which should be taken into consideration when a dentist determines a specific fee schedule for the dentist’s own dental practice.
Where a dentist has in fact put in place a fee schedule for his or her own practice which has been determined after a thoughtful and deliberate analysis of the particulars of the dentist’s practice circumstances, expenses and reasonable profitability objectives, it is submitted that the likelihood of the dentist being able to bill his or her patients ethically is enhanced.
If the dentist simply incorporates the fee guide as the dentist’s fee schedule for his or her practice without actually performing the aforementioned analysis and perhaps not even reading the expressed principles of the fee guide being relied on, the likelihood of improper and unethical billing is increased.
Let us now look at some ethical dilemmas which can arise when a dentist decides to rely on the procedural codes and suggested fees as listed in the fee guide.
As dentists know, fee guides can list a range in the suggested fee for a given procedure. Also, when a fee is suggested, it may be implied, expressly or implicitly, that there is a time component related to the fee so that if more or less time is spent rendering the procedure, the actual fee to be charged to the patient may be adjusted accordingly. Therefore, when a dentist determines what the fee for a given dental procedure will be in the dentist’s own practice, presumably the time component factor will be taken into consideration as well.
Let’s look at a hypothetical situation. Say the fee guide states that for procedure “X”, the range in fee can be $25.00 – $124.49″. “Dr. Smith” decides that in his office he will always charge his patients exactly $124.49 when he performs the procedure on his patients whether it takes him five minutes or 30 minutes or more. Is this ethical? Is the maximum suggested fee in the fee guide meant to be charged everytime the dentist performs the procedure or should it vary depending on the circumstances as the range in the fee guide expressly implies? Where the fee guide does not give more guidance to the dentist, it is very possible that Dr. Smith will genuinely believe that charging this fee is in fact “complying with the fee guide” and by doing so, he is not doing anything wrong. Is this necessarily true?
Let’s add a few other hypothetical factors to this scenario. Let’s say the dentist is using computer software which has the “fees” automatically loaded into the computer and the dentist has never even seen the explanations which accompany the fee guide. Or let’s say Dr. Smith does not know what the fee guide says and simply instructs, and relies on, his “front desk staff” to read the fee guide and fill in the fees and procedure codes for him since he doesn’t have time to do this as he is busy treating his patients. Say that Dr. Smith is also aware that this particular procedure code is “usually” always covered by dental benefits plans without limit and as such he sees no problem in charging the maximum suggested fee for the procedure. Do these factors make the dentist’s charging the maximum fee as set out in the fee guide more or less ethical?
Query: Has the fee guide resulted in dentists setting up fee schedules for their own offices which purposely only select the maximum recommended fee from the fee guide as their fee even though this is contrary to the intention of the fee guide?
Similarly, when a fee guide only lists one suggested fee for a given procedure, is it ethical that dentists interpret this to mean that for their own practice fee schedule, one fee should be charged to all their patients regardless of the time spent and difficulty encountered? Or, is it implicit that in terms of reasonableness, if the procedure is more difficult, the dentist’s actual fee may be higher and conversely, if the procedure goes better than expected, the fee will be reduced?
Query: Where a fee guide does not give a range in fee or does not expressly state that the guide is to be used in a flexible manner in the patient’s best interests in order to fulfil the dentist’s ethical obligations to his or her patient, does this contribute to a dentist misusing the fee guide when setting his or her own fee schedule which can be contrary to the intention of the fee guide?
Let’s consider some additional hypothetical situations.
1. Is it ethical to charge a patient the same examination fee for a five minute examination as a thirty minute examination?
2. If a fee guide lists a recall examination procedure code fee as $20.00 but also lists another examination code (eg. specific examination code) as ranging from $20.00 to $100.00, is it appropriate to use a specific examination code insteadof the recall examination code so that you can charge the $100.00 fee instead of the $20.00? If you know that the maximum recall examination fee paid by the patient’s dental benefits plan is $20.00, does this influence your decision as to what examination code to use?
In contrast, if the fee guide did not list any fee at all for the examination procedure codes, what fee would you charge the patient?
3. If you actually spend a few minutes more looking at a specific problem during a recall examination on Mr. Hypothetical, is it appropriate to submit a specific examination code rather than a recall examination code in order to charge the patient the higher examination fee which will also be paid by the patient’s dental benefits plan? Or should you still submit the recall examination code and charge the higher fee reflecting the increased time you spent performing the recall examination knowing that your patient will not be reimbursed for any amount which exceeds the $20.00 recall examination fee?
Again, if the fee guide did not list any fee at all for examination procedure codes, what fee would you charge the patient?
4. If in the case above, Mr. Hypothetical does not have any dental benefits plan, you still need to document what you have done but you don’t have to list a procedure code in the chart. Would you still document that a specific examination was performed or would you note it as a recall examination? What would your fee be?
5. Where a fee guide identifies a dental procedure and recommends a fee but does not explain how the procedure is to be performed, this can also create an ethical dilemma for the dentist. For instance if the professional fee for a crown is listed as $800.00 plus lab fee, what is the dentist to do if he or she utilizes new digital computerized technology enabling the dentist to make crowns in less time and without third party commercial laboratory fees? Although the cost of the equipment and technology may exceed one hundred thousand dollars, the per unit crown cost may in fact be reduced for the patient. Does the dentist reduce the individual crown cost or increase it or keep it the same? Is the motivation to recommend crowns increased to cover the cost of the equipment in the short term or to deliver even more crowns to patients than before? If yes, is it for the patient’s benefit or primarily for the dentist’s personal gain? The conflict of interest may become very evident. If the tooth reduction for the crown preparation must be more aggressive resulting in a higher risk of endodontic therapy being needed for the tooth, will this be disclosed to the patient as part of the informed consent process?
Is putting the patient through this endodontic risk due to the technical requirements of the technology justifiable in the patient’s best interests?
6. Similarly, if digital technology reduces the radiation exposure to patients for dental radiographs, does this mean more digital radiographs should be taken on patients? Should full mouth radiographs be taken more frequently than before because of the reduced radiation risk? Or is this an unnecessary recommendation driven by personal financial gain and not in the patient’s best interests? If the patient’s dental benefits plan did not cover such “additional” radiographs, would you still recommend them?
Scenario One: I trust every reader knows the answer to this one. You’ve worked too hard to earn your licence to practice / certificate of registration to jeopardize same. Do not misrepresent the facts by submitting incorrect information on the claim form to suit your patient’s request. The criminal, statutory (professional) and civil legal consequences can be dire.
Scenario Two: If the patient indicates that he or she has a concern which requires a specific examination then it would be reasonable to perform such an examination and submit a claim for same with a fee commensurate with the service rendered. However, if in fact the patient is being seen as a recall patient and the patient’s “additional” concern is assessed as part of the recall examination, then submitting a specific examination code instead of the recall examination code and charging a higher fee for same in such a circumstance may well be unethical and illegal.
For patients whom see you for regular recalls, recommending a complete examination and a full set of radiographs automatically after a set period of time may be considered unethical as well as illegal (ie. unnecessary dentistry). Such treatment should only be performed when necessary and there are indications to justify doing so.
Scenario Three: You and/or your dental hygienist should only provide services which are necessary. If the practice routine is to book all adult patients for a one hour recall appointment, scaling should be billed on the basis of what treatment was needed and performed. If less than three units of scaling were performed the codes submitted and fees charged should reflect same. If the fee guide has a half unit of time scaling code, use it where applicable as part of your fee schedule to ensure your submitted claim is accurate. Beware applying topical fluoride as a matter of routine and make sure there is a justifiable necessity for this treatment. As with all dental treatment, obtain informed consent prior to administering same.
Scenario Four: Before you offer any dental treatment, new or old, to your patients, perform due diligence to satisfy yourself that what you are proposing to do in fact does meet the standards of practice of the profession. If the area of practice involves a specialty, it would be prudent to consult with a trusted specialist colleague for a second opinion before implementing the technique. If there is some controversy regarding the procedure, not only obtain the information you need to justify your treatment along with a supportive specialist, but as always, make sure you obtain informed consent from your patient before commencing treatment.
Scenario Five: Although you may well be qualified and experienced to provide multiple dental services while your patient is under deep sedation or general anaesthetic, be sure to comply with the applicable standards and to charge fees which would be seen to be reasonable in relation to the services provided. Be sure to obtain and document informed consent pre-operatively and to have a protocol in place for obtaining consent should a change in treatment be needed during the appointment. If the patient has a dental benefits plan be sure to submit a written pre-determination to both the patient and the third party insurer/administrator so that all interested parties know the status of what is and is not going to be paid for under the plan.
The utility of having common procedure codes understood by dentists and third party dental benefits plan administrators alike appears to be of great benefit when there is a need to submit procedure codes for dental services performed. However, it is submitted that there may be merit in looking into the advantages and disadvantages of deleting the procedure code fees from the fee guides so that dentists can develop their own fee schedules and reduce their vulnerability of being exposed to allegations of improper claim form submissions based on codes and fees charged for same. Dentists should be advised as to what factors and expenses should be taken into consideration when setting the dental fees for their practices so that they can determine an appropriate fee schedule which is appropriate for their own practice.
Alternatively, if suggested fees are to be kept in fee guides, thought should be given to having a large range in “recommended or suggested” fees being expressly set out for each procedure code and instructions clearly given throughout the fee guide explaining how a dentist is to create a customized fee schedule for his or her own dental practice depending on the circumstances applicable to the dentist’s specific situation. Listing the factors, expenses and criteria which should be taken into consideration may be quite helpful in this regard.
Dentists should be wary of the consequences of inaccurate, improper and unethical claim form submissions. They should be encouraged to consult with and join the association(s) who created the fee guides applicable in their jurisdictions to ensure their questions are answered and their utilization of the fee guides is appropriate for the development of their own fee schedules for their offices (eg. For Ontario dentists, The Ontario Dental Association.)
With greater understanding and familiarity with the underlying concepts and utilization of fee guides, dentists can indeed bill as ethically as possible when relying on such fee guides in dental practice.
Disclaimer: This article is intended to provide you with information of a general educational nature only and is not to be taken as legal advice upon which you are to rely for any specific situation. Appropriate advice should be obtained from a lawyer prior to taking any action in any specific situation or circumstance. oh
About the Author: Rollin M. Matsui received his B.Sc. degree from Victoria College, University of Toronto in 1975, his D.D.S. dental degree from the Faculty of Dentistry, University of Toronto in 1979 and his LL.B. law degree from Osgoode Hall Law School, York University in 1991. He is a Fellow of the American College of Legal Medicine and part-time lecturer at the Faculty of Dentistry, University of Toronto. He also provides numerous risk management lectures to dentists. He maintains a full-time law practice in Richmond Hill and a part-time dental practice in Toronto, Ontario. In his law practice, he primarily acts for dentists in complaint and professional misconduct related matters and provides legal advice regarding business agreements involving dentists in various working relationships. He is no longer involved with the Canadian Dental Protective Association (CDPA). He is the Oral Health Journal Editorial Board Member for Ethics and Jurisprudence.
Website: www.drrollinmatsui.com; E-mail: firstname.lastname@example.org
Oral Health welcomes this original article.
1 Ontario Regulation 853/93, s.2, paragraph 28, as amended, made under the Dentistry Act,1991, defines professional misconduct as “Signing or issuing a ce
rtificate, report or similar document that the member knows or ought to know contains a false, misleading or improper statement.” Similarly, s.2, paragraph 33 defines professional misconduct as “Submitting an account or charge for dental services that the member knows or ought to know is false or misleading.”
2 Ibid.,s.2. Professional misconduct defined as “Recommending or providing an unnecessary dental service (Parag.6); “Charging a fee that is excessive or unreasonable in relation to the service performed.” (Parag.31).
3 Ibid.,s.2. Professional misconduct defined as “Treating a patient for a therapeutic, preventative, palliative, diagnostic, cosmetic or other health-related purpose in a situation in which a consent is required by law, without such a consent.”(Parag.7)
4 Royal College of Dental Surgeons of Ontario, Code of Ethics (Schedule 5 to By-law No.1, November 2004) Principle 1: “The paramount responsibility of a dentist is to the health and well-being of patients.”
I am 76 years old and go to my dentist twice a year for cleaning of my teeth/scaling. I believe that one unit of time (15)minutes is not enough time to properly scale all the teeth on and adult. Usually it requires two units of time to do my teeth. My dental plan only allows minimal time for one year of coverage for this procedure. Allowable time should be changed.
AFTER MY TEETH HAVE BEEN CLEANED, I AM CHARGED A FEE FOR DENTAL EXAM OF 45.00, EVEN IF THE DENTIST DOES NOT SEE ME. IS THIS A CHARGE THAT SHOULD BE ACCEPTABLE? PLEASE REPLY.
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