Illegal dental assistant activities

by Dianne Glasscoe Watterson, RDH, BS, MBA

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Dear Dianne,

A friend began working for my boss four months ago. She is an RDA with coronal polishing on her license. Prior to working here, she worked at a pediatric dental practice for a few years. My dentist realized she could “clean” teeth and is now allowing her to perform more than 20 prophies a month. He never touches the scaler, but I’ve seen her use it more than once. One day I was out for a funeral, and she cleaned four adults instead of rescheduling them. I know it is illegal for her to scale, and I know several pediatric offices that do this, as her previous employer did.

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I am torn between our friendship and reporting this. I would hate to have her lose her license, but she knows it is illegal. Reporting her would ruin our relationship, but this is effectively taking money out of my pocket. Also, if I know this is happening and do not report it, will I be held responsible if a patient finds out and reports it?

My boss says this is the only way to build the practice to four hygiene days, which is completely untrue. We had four days from July to November 2012, and I believe this is just easy money for him without having to pay a hygiene salary.

A Rule Follower

Dear Rule Follower,

What a dilemma! The issue you’ve described is both personal and professional. The dentist is showing a glaring disrespect for three people – you, the dental assistant, and the unsuspecting patient. I wonder how this dentist would feel about having untrained individuals running tests or performing treatment on him.

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Other articles by Watterson

Discussing treatment needs
Rejecting treatment recommendation
I’m a hygienist, not an independent contractor

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The reason any of us go to school, study hard, and earn a professional designation or license is to enable us to provide competent, safe care. State licensing boards exist to protect the public from people who are not properly trained to provide competent care. In promoting the treatment of patients by an unlicensed, untrained assistant, the dentist is breaching the patient’s trust and risking serious liability. What would have happened if even one patient had asked this assistant if she was a dental hygienist? Would she have lied? Patients are not stupid. What if she slipped with an instrument and injured the patient? What if there had been a patient medical emergency that required calling 9-1-1? If this doctor is willing to risk being reprimanded, fined, and come under scrutiny by the dental board, what else is he doing that is illegal? What is he thinking? Maybe the doctor doesn’t know it, but the state dental board is not his friend. A risk management professional with one of the large liability insurance carriers stated in a meeting I attended that it would be more desirable to be in trouble with the law than with the dental board. Being in trouble with the law can cost money, whereas being in trouble with the dental board can cost a person his or her license. Dental boards wield a lot of power and can make life miserable for a dental professional who crosses the line.

Most state board websites post their disciplinary actions. Searching through several board websites, I found the two main actions for discipline were:

Not maintaining the required number of continuing education credits
Practicing outside the scope of one’s license or allowing an unlicensed person to perform services or work that are not delegable under the law

Punitive actions ranged from a formal letter of reprimand all the way to license revocation. Most imposed a fine between $500 and $2,000.

I spoke with a colleague who served on a state dental board for many years. I asked her specifically what it means to have one’s license reprimanded. She indicated it can be interpreted various ways, depending on the circumstances. The reprimand could be either verbal or written and can involve fines or simply an admonishment to “not let it happen again.” The board also reserves the right to monitor the practice for a period of time. If a patient files a complaint with the dental board, the board is mandated to investigate and answer to the public, whereas staff complaints are sometimes treated as office issues and viewed differently. The typical scenario is that an investigator will pay a visit to the office and inform the doctor that the board has been notified, and that he is to cease and desist said practices. The dental assistant may be called into the conference or she may just receive a letter of reprimand stating that her license is in jeopardy if she continues to practice outside her legal scope. A second complaint could mean revocation of her license. Licensed or unlicensed, both she and the doctor are at risk for fines and even jail time.

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What are your obligations in this matter? There is a legal term called “complicit inaction.” This is when you know something illegal is going on, and you don’t do anything about it. Doing nothing is seen as being complicit with the wrongdoing. It is legal for assistants to polish with the proper credentials, but it is NOT legal for them to scale or probe. While the dentist bears the brunt of any possible punitive action, consider a scenario where a patient receives an injury at the hands of the untrained assistant. Depending on the circumstances, you could be called to testify. This is where the water gets murky. It is not clear what consequences you could face.

Since you mentioned you are friends with the assistant, your best action is to appeal to her to do the right thing. She doesn’t know what she doesn’t know. The assistant needs to take a stand that she is not willing to risk her own license by performing duties for which she has not been licensed. She should tell the dentist that his asking her to do illegal duties makes her feel disrespected and devalued. Maybe the dentist should consider implementing assisted hygiene into the practice. This model would allow the assistant to polish but keep everything legal by having you perform the scaling.

At the very least, you should keep some records of dates and patients’ names that were treated illegally. You should also keep a written narrative with dates of your conversations with the dentist and assistant about practicing illegally.

What may seem like easy money to the dentist now could prove to be very costly in the future. If the dentist is ever reprimanded by the dental board, it is highly likely that his malpractice rates will increase, much like getting a speeding ticket causes a rise in auto insurance rates. Further, if the misdeeds are made public, the practice could lose patients. In most states, board actions are available for public scrutiny on the dental board website.

It’s unfortunate that you are being forced to work under this unnecessary stress and tension. If the doctor could only see that the risk is not worth the temporary reward, he might come to his senses. Dental professionals are expected to follow high standards of professional care and be morally and ethically upright. Unfortunately, the doctor is falling short. The unsuspecting patient is being defrauded of competent care. The situation reminds me of a saying: “Fraud is the daughter of greed.” (Jonathan Gash, The Great California Game) RDH

All the best, Dianne

DIANNE GLASSCOE WATTERSON, RDH, BS, MBA, is a professional speaker, writer, and consultant to dental practices across the United States. Dianne’s new book, “The Consummate Dental Hygienist: Solutions for Challenging Workplace Issues,” is now available on her website. To contact her for speaking or consulting, call (301) 874-5240 or email dglass [email protected]. Visit her website at www.professionaldentalmgmt.com.