The following material is provided by MDA legal counsel Mary Kelly McCue
as guidance on the topics presented. Although the material refers to state
statutes and administrative rules, it is not intended as legal advice.
The dentist should consult a personal attorney concerning any specific
legal problem or issue.
As third-party payors exert increasing pressure on health care professionals
to adopt measures for the purported purpose of containing medical costs,
it becomes a natural reaction for independently practicing dentists to
join together to form a collective response to these pressures. But dentists
must be mindful of the civil and criminal implications of any collective
response to an invitation to join third party payor networks.
Health care professionals are subject to federal and state antitrust
laws. Collective conduct by independently practicing dentists may result
in illegal price-fixing or group boycott agreements under these laws.
Dentists practicing independently are considered by the law to be competitors
because they are individuals providing the same service to patients. And
antitrust laws prohibit certain types of joint activity among competitors.
The antitrust law most relevant to dentists is Section 1 of the Sherman
Act. It prohibits any concerted action that unreasonably restrains competition.
A written agreement among dentists is not necessary to show concerted
action. Collective activity, including inferred agreements among competitors,
can result in illegal agreements. As competitors, dentists also must avoid
discussion of prices, particularly proposed future prices. If they don't,
they risk charges of an unlawful price-fixing conspiracy.
For example, an agreement to fix prices could be inferred from meetings
at which dentist discussed fees if afterwards the dentists began charging
the same fees. And it could be considered an unlawful boycott if a group
of dentists from a district dental society or other group of dentists
agreed among themselves to refuse to deal with a certain third party payor.
In response to an invitation to join a payor's provider network, a dentist
may independently decide whether to contract with the third party payor.
Also, fully integrated group practices and independent practice associations
are considered to be single entities. The antitrust laws do not prohibit
conduct by an individual dentist or dental group practice, including a
refusal to participate in a third party payor's program. But a dentist
who joins with other independently practicing dentists to make this decision
may be charged with illegal restraint of competition.
It also may be considered unlawful for a group of dentists to collectively
threaten to cancel their participation agreements with third-party payors
unless the payors agreed to more satisfactory terms, including higher
reimbursement levels. These group activities are viewed as unlawful attempts
to fix fees.
In one antitrust case, a group of dentists were convicted of conspiring
to fix prices for dental services provided to members of a prepaid dental
plan. The dentists met together and agreed to persuade the plan to raise
co-payment fees and then took steps to carry out the agreement.
The Federal Trade Commission, which can bring civil antitrust cases,
has rejected the defense of a group of health care providers that its
collective activities were motivated by concern for patients' welfare.
Dentists should not assume that an organized activity is lawful merely
because they believe it serves the public's interest.
Conduct will be considered an unreasonable restraint of trade if on balance
it is anticompetitive. Two standards are used to judge the competitive
nature of questionable conduct. Most conduct is examined under the "rule
of reason" which requires that all relevant facts be weighed and
examined to determine the procompetitive and anticompetitive effects of
However, some kinds on conduct are considered to always be anticompeti-tive.
These types of conduct are considered "per se" illegal, regardless
of their purpose or actual effect on competition. A price-fixing agreement
or understanding would be illegal per se. Another type of agreement that
may be considered per se unlawful is a group boycott.
Two exceptions to the antitrust laws are of particular importance to
dentists. The first arises out of the constitutional right to petition
the government. The First Amendment of the United States Constitution
protects the right to petition any branch of the government. Thus dentists
and dental societies may advocate for governmental action even if the
action would harm competition. The second exception, state action, provides
that acts of the government itself are not subject to the antitrust laws.
Private parties may be protected under this exception if their acts were
clearly authorized and supervised by the state.
A violation of the antitrust laws can result in severe penalties, including
triple damages in a civil lawsuit. A violation may also result in criminal
penalties against health care providers who violate the antitrust laws.
If you have questions about antitrust issues, contact the MDA staff or
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Montana's Uniform Health Care Information Act defines a dentist's duty
to release information and to make information available to the patient.
Generally, a dentist may not disclose health care information about a
patient to any other person without the patient's written authorization.
But the act provides a number of specific exceptions to this general rule.
Disclosure upon patient's request. A dentist must release health
care information upon the patient's request. A valid authorization must:
- be in writing, dated and signed by the patient;
- identify the nature of the information to be disclosed;
- identify the person to whom the information is to be disclosed.
Disclosure without the patient's permission based on need to know.
A dentist may disclose information without the patient's permission to
a person providing health care to the patient. And a dentist may release
the information to a third-party health care payor (insurer) and to someone
who is conducting peer review. The dentist may release the information
if the dentist reasonably believes the person will:
- not use or disclose the health care information for any other purpose;
- take appropriate steps to protect the health care information.
A dentist also may release information to another health care provider
who previously provided health care to the patient, to the extent necessary
to provide health care to the patient, and to immediate family members
of the patient or any other individual with whom the patient is known
to have a close personal relationship, unless the patient has instructed
the dentist not to make the disclosure.
A dentist may release the information to another dentist who is the successor
in interest to the dentist maintaining the information. And to any contact
who has been identified by the subject of an HIV-related test as a past/present
sexual partner, needle sharer, or someone otherwise exposed to the virus,
if the dentist reasonably believes that disclosure will avoid or minimize
an imminent danger to the health or safety of the contact or another person.
A dentist may also release health care information if the disclosure
is to public health authorities, to the extent required to protect public
health; to federal, state or local law enforcement agency to the extent
required by law; to a law enforcement officer about the general physical
condition of a patient being treated in a health care facility if the
patient was injured on a public roadway or was injured by the possible
criminal act of another; under compulsory court process; and to mortuary
personnel who may be exposed to infectious disease at the time of transfer
of a dead body.
Disclosure by legal process. Information may be made available
by compulsory legal process if, among other matters:
- the patient has consented in writing;
- the patient has waived the right to claim confidentiality;
- the patient is a party to the legal proceeding and has placed his
physical or mental condition in issue; or
- the health care information is for use in any law enforcement proceeding
or investigation in which a health care provider is the subject or a
Patient authorization to dentist for disclosure -- denial of patient
access -- revocation. A patient may authorize a dentist to disclose
the patient's health care information. The dentist must honor the authorization
and if requested, provide a copy of the recorded health care information
unless the dentist denies the patient access because the dentist reasonably
concludes that, among other matters, knowledge would be injurious to the
health of the patient or the information was compiled and used solely
for litigation or peer review purposes. The Uniform Health Care Information
Act does not permit denial of access to health care information on the
grounds that the patient has not paid the dentist's charges for services.
Under the Uniform Health Care Information Act, a dentist may charge a
reasonable fee, not to exceed the actual cost of providing the health
care information, and is not required to honor the authorization until
the fee is paid.
A patient may revoke a disclosure authorization at any time unless authorization
is necessary to effectuate payments for dental care that has been provided.
A dentist must retain each revocation from the patient.
Patient authorization -- retention -- effective period. Except
for authorizations to provide information to third-party health care payors,
an authorization may not permit the release of information relating to
health care that the patient receives more than 6 months after the authorization
An authorization becomes invalid after the expiration date contained
in the authorization, which may not exceed 30 months. If the authorization
does not contain an expiration date, the authorization is effective for
only 6 months. After that time, the patient must provide a new authorization.
A dentist must keep a record of each written authorization. A dentist
must also keep a record of each person who has received or examined the
information within the past 3 years. The disclosure record must include
the name, address, and institutional affiliation of the person who received
or examined the information. The record must also describe the information
Content and dissemination of notice. A dentist is required to
draft a notice to a patient describing how the patient may get his or
her records. The notice must be posted in a conspicuous place in the dentist's
It should state in substantially the following form: "We keep a
record of the health care services we provide for you. You may ask us
to see and copy that record. You may also ask us to correct that record.
We will not disclose your record to others unless you direct us to do
so or unless the law authorizes or compels us to do so. You may see your
record or get more information about it at [dentist's office]."
Request for examination, copying, or amendment. If a dentist receives
a written request from a patient to examine or copy the patient's health
care records, the dentist must make the information available to the patient
during regular business hours within 10 days of receiving the request.
Under the Uniform Health Care Information Act, the dentist may charge
a reasonable fee not to exceed the actual cost for providing the information
and is not required to permit examination or copying until the fee is
Finally, if the patient asks to amend or correct a health care record,
the dentist must respond within 10 days by allowing the amendment or correction
or advising the patient in writing of the reason for refusing to make
the amendment or correction.
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Dentists frequently ask, "How long do I need to keep my patient
records?" The following is meant to provide some guidance on this
question, However, it is not meant to be legal advice. The dentist should
consult a personal attorney for such advice.
Montana's Uniform Health Care Information Act provides that a dentist
must retain health records for at least one year following the receipt
of an authorization from the patient to disclose the information, a request
from the patient to examine and copy the patient's records, or a request
for correction or amendment of the information.
Montana administrative rule ARM � 46.12.308 provides that with regard
to Medicaid patients, a medical provider must maintain records which fully
disclose the extent and nature of the services provided to individuals
receiving assistance under the Medicaid program. The records must support
the fee charged or payment sought for services. The records must be retained
for a period of at least three years from the date on which the service
The rule also provides that the Department of Public Health and Human
Services is entitled to have access to all Medicaid recipient records
maintained and retained by the health care provider regardless of the
provider's continued participation in the program. If the medical practice
changes ownership, the original owner of the practice must retain all
required records unless an alternative method of providing for the retention
of records has been established in writing and approved by the department.
The extent to which a dentist may choose to retain a patient's medical
records beyond these required periods is an issue of individual judgment.
Again, the dentist should seek legal advice in a specific instance.
For example, a dentist may choose to retain the records longer in view
of the statute of limitations for the filing of a medical malpractice
civil action. Section 27-2-205, MCA, provides that a tort or contract
action for injury or death filed against a dentist based upon alleged
professional negligence must be commenced within three years after the
date of injury or within three years after the patient discovers or through
the use of reasonable diligence should have discovered the injury. However,
in no case may the lawsuit be filed later than five years from the date
of the injury. This time limitation is extended during any period in which
there has been a failure to disclose to the patient any act, error, or
omission on which the action is based if known to the defendant dentist
or which through the use of reasonable diligence would have been known
to the dentist.
If the patient is a minor who was under the age of four on the date of
the injury, the period of limitation begins to run when the child reaches
the age of eight or dies, whichever occurs first, and the time for the
commencement of the civil action is tolled for any period the child does
not reside with a parent or guardian. Another circumstance which will
extend the period limitation involves a seriously mentally ill person.
In this case, MCA � 27-2-401 provides that the time of disability is not
part of the time limit for beginning an action. However, the time limit
cannot be extended more than five years by the disability of serious mental
ARM � 8.16.703 is another administrative rule that relates to patient
records. The rule requires dentists to safeguard the confidentiality of
patient records. They must maintain patient records in a manner consistent
with the protection of the welfare of the patient. Upon request of a patient
or another dental practitioner, a dentist must provide any information
that will be beneficial for the future treatment of the patient. This
language is also contained in Code Section 1-B of the ADA Principles
of Ethics and Code of Professional Conduct.
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Montana law allows a dentist to file a lien against a patient's insurance
payments or proceeds for the value of services provided. To claim a lien,
the dentist must give written notice to the insurer. The notice must
- state that a lien is being claimed;
- describe the nature of the dental services;
- give the name of the patient;
- state the date services were rendered.
MCA � 71-3-1117 provides that if the insurer, after receiving notice
of the lien from the dentist, pays the patient who does not then pay the
dentist, the insurer remains liable to the dentist for the amount of the
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To report suspected child abuse, call 1-800-332-6100. The ADA
Principles of Ethics and Code of Professional Conduct state a dentist's
responsibility in cases of suspected child abuse. The relevant provision
of the Code reads:
1-F. CHILD ABUSE. Dentists shall be obligated to become familiar
with the perioral signs of child abuse and to report suspected cases to
the proper authorities consistent with state laws.
In addition, Montana law requires a dentist to report cases of child
abuse. MCA � 41-3-201 states than when a dentist, as a result of information
received in the dentist's professional capacity, knows or has reasonable
cause to suspect that a child is abused, the dentist must promptly report
the matter to the Department of Public Health and Human Services or its
local office. A dentist may not refuse to make a report on the grounds
of dentist-patient privilege.
A dentist is immune from civil or criminal liability for making a report
of child abuse or suspected abuse unless the dentist was grossly negligent
or acted in bad faith or with some malicious purpose.
When the department receives a report that a child has been abused or
that abuse is suspected, a state representative will conduct an investigation
into the home of the child involved. A dentist who has made a report regarding
abuse or suspected abuse should be prepared to answer questions concerning
the dentist's specific concerns and to provide the name, address, sex,
and date of birth of the reported child and the name, address, and telephone
number of the adult who has custody of the child.
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In what circumstances may a dentist terminate services to a patient of
record? The decision to terminate services should take into account these
The ADA Principles of Ethics and Code of Professional Conduct
state a dentist's responsibility regarding service to the public and quality
of care. On the issue of patient selection the Code states:
1-A. PATIENT SELECTION. While dentists, in serving the public,
may exercise reasonable discretion in selecting patients for their practices,
dentists shall not refuse to accept patients into their practice or deny
dental service to patients because of the patient's race, creed, color,
sex, or national origin.
A dentist may terminate services to a patient of record so long as termination
does not endanger the patient's health and is not discriminatory.
The dentist should also be mindful of the ADA Advisory Opinion
which states that a dentist has the ethical obligation on request of either
the patient or the patient's new dentist to furnish, either gratuitously
or for nominal cost, such dental records or copies or summaries of them,
including dental x-rays or copies of them, as will be beneficial for the
future treatment of that patient. This obligation exists whether or not
the patient's account is paid in full.
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Montana Dental Association
P.O. Box 1154
Helena, Montana 59624
800-257-4988 (In Montana only)
406-443-2061 (in the Helena area)
Copyright © Montana Dental Association, 1998-2004
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