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Reopening Your Dental Office During the Pandemic

By Jeanine Lehman, Attorney at Law

An eternity seems to have passed since the City of Austin cancelled the SXSW festival due to COVID-19 in early March. Austin was spared the influx of over 400,000 visitors from around the world and a possible fate akin to New Orleans. That said, dental practices have suffered greatly due to their closure pursuant to the Governor’s Executive Orders GA-09 and GA-15, which limited health care providers to certain emergency services – to preserve personal protective equipment (PPE) for frontline healthcare workers fighting COVID-19. 

Reopening. On April 27, 2020, Governor Abbott announced that effective May 1, 2020, dentists may reopen their practices per Executive Order GA-19, which allows dentists to no longer be limited to emergency services. Dentists must comply with Texas State Board of Dental Examiners (TSBDE) emergency rule 108.7(16) which requires compliance with the rule’s and CDC guidelines. These include having COVID-19 procedures, screening of dental health care personnel (DHCP), as well as patient pre-appointment screening, in-office screening, and post appointment instruction, use of standard precautions, transmission-based precautions (including N-95 respirator masks, KN-95 masks, or their substantial equivalent for procedures likely to involve aerosols), and emphasis on proper use of personal protective equipment and reduction of aerosol production. An example is that for hygiene services, only hand instruments and low-speed polishing tools may be used. The guidelines also have office considerations and many more requirements. The rule is available on the TSBDE website. The Governor also provided a manual with minimum health protocol checklists for employers, businesses and individuals, which should be used, at: gov.texas.gov/opentexas   Patients and others should be directed to wear face coverings while not in the dental chair. Dental practices should follow applicable guidelines, including TSBDE, CDC, OSHA, public health authorities, and other governmental entities, and make reference to ADA and TDA resources. The Texas Dental Association’s “Guidelines for Reopening Dental Offices Safely During the COVID-19 Pandemic” is helpful and includes resource references. 

Employees. When Order GA-09 was issued in March, many practices fired or furloughed some or all of their employees, who then filed for unemployment. To bring back fired employees, they  need to be rehired and customary new hire paperwork is required. Hopefully, fired and furloughed employees will want to come back to work and realize there is a limit to unemployment benefits. That said, many employees will receive more money from unemployment benefits than from working at their past wage levels, due to added pandemic federal unemployment benefits of $600/week. To estimate an employee’s unemployment benefits, $600/week is added to the results from the Texas Workforce Commission’s benefits calculator: https://apps.twc.state.tx.us/UBS/benefitsEstimator.do 

COVID-19 in the Office. A COVID-19 positive patient, visitor, or team member may be present in the dental office. Such person may be asymptomatic but spreading the virus. Therefore, the practice needs to have a plan in place for what to do if notified by a patient, team member or visitor of COVID-19 infection, including compliance with the requirements of State and local public health authorities. For eligible employees, the practice also needs to comply with the Families First Coronavirus Response Act administered by the U.S. Department of Labor, including for paid sick leave and enhanced family medical leave requirements. A poster concerning employee rights is required.

PPP Loans. Practices receiving Paycheck Protection Program loans should carefully track and document allowable expenses that apply to loan forgiveness. To avoid or limit the reduction in loan forgiveness, they need to be aware of and minimize the reduction in the number of full time equivalent employees and employee compensation.

Costs & Adjustments. Dental practices will incur significant costs, including for enhanced PPE, office improvements, and probable reduction in patient capacity. For example, a hygienist doing hand scaling will see fewer patients in a day. The American Dental Association has issued a statement on third party payer reimbursement for costs for increased standards for PPE. Dentists should also carefully track and document their loss of revenue and increased expenses caused by the pandemic. Those data will be helpful if they choose to sell their practices.

Changing Requirements. The reopening of dental practices will be subject to changing orders, rules, laws, and opinions. Therefore, ongoing vigilance and consultation with a knowledgeable attorney concerning changes will be critical.

Jeanine Lehman is an Austin, Texas dental, health and business law attorney with a statewide practice – www.jeanine.com. She can be reached at (512) 918-3435 or Jeanine@Jeanine.com. © Jeanine Lehman 2020. This article is not legal advice.

 

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Editor’s Corner June 2020

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President’s Message June 2020

Fellow CADS members, I am honored to be embarking on a unique leadership journey through this unprecedented time in our profession.  If I have not had an opportunity to meet you yet, I look forward to meeting you at a future General Meeting or at a CADS event.  In the meantime, I would love to share a little bit of background about myself.  I graduated from the University of Texas (Hook ‘em Horns!) in 1998 and attended the University of Texas School of Dentistry in Houston.  My husband is also a dentist and owns a private practice in Pflugerville.  We have a 14 year old daughter and a 10 year old son who light up our life and keep us busy!  I serve as the Chief Dental Officer for St. David’s Dental Program, the largest charity based mobile dental program in the nation.  Our Dental Program provides dental care to underserved children and adults across Central Texas.  I have always had a passion for public health since my time at UT when I was a Microbiology major.  The first experience that ignited my passion in public health was serving as an intern at the Texas Department of Health in the Epidemiology Department.  After graduating from dental school, I worked for a few years in private practice in Houston and had the best mentor who taught me the ins and out of practicing dentistry.  We moved to Seattle, Washington for a brief time and I had the opportunity to work in various public health setting in city clinics, rural towns and in mobile units.  I quickly realized that my path was in public health dentistry and serving the community.

As I thought about my upcoming Presidential term, it is apparent that COVID-19 has turned our world upside down personally and professionally and though this may be far from over, we have entered the recovery phase and are beginning to consider everything necessary to return to dentistry.

I am reminded of a great quote from an inspiring leader, Dr. Martin Luther King Jr.:

“The ultimate measure of a man is not where he stands in 

moments of comfort and convenience 

but where he stands in times of challenge and controversy.”

We have all had to step out of our comfort zone so that we may protect and keep our staff, patients and community safe and healthy.  We have all read countless numbers of articles, watched every webinar out there and skimmed through content on social media forums all in hopes of finding answers and creating the best plan for returning to dentistry.  With all of this, one thought that stood out to me was how much organized dentistry is doing for our profession and how proud I am to be a member of organized dentistry.  The ADA and TDA have worked tirelessly to create interim guidance and toolkits for its members.  They also lobbied Congress on a third legislative package in response to the pandemic by asking lawmakers to include provisions on how to assist dental practices and other small businesses facing economic burdens.  Communication and updates to members were frequent and in a timely manner via multiple platforms such as webinars, emails and social media. Talk about a member benefit! 

Looking forward, I have never felt more appreciation for all the things that I use to take for granted such as a hug from a loved one, Friday night family dinners at our favorite restaurant or watching my kids play sports.  As a family, we have learned a lot about each other while quarantining and enjoyed bonding and having uninterrupted time together.  It really has been a blessing and a perfect time to catch up on self-care.  On the flip side, we are all ready to get back to some level of normalcy even if that is in a phased approach!  The kids cannot wait to hang out with their friends, and I am pumped about being back with my team and our Dental Program that is essential to the community. 

I am also thrilled to serve as President of CADS this year!  The CADS Board of Directors have done a phenomenal job at thinking innovatively about how we can serve our members while being cautious of COVID-19 guidelines and orders.  My Presidential term will be all about YOU…our members.  CADS is here for you in every way possible as you begin to recover during this difficult time. 

Stay healthy, safe and well!

Sincerely,

Shailee J. Gupta, DDS, MPH

CADS President 2020-2021

 

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President’s Message May 2020

It’s an understatement to say these have been interesting times. Whether you have been practicing one year or fifty, our profession has never experienced anything like the pandemic that we currently face, and it is far from over. If you are like me, you have worked through the psychological phases of this crisis… the initial panic, the emotional aspect of laying off or furloughing your team, the stress of managing the various resources for financial support, and finally the determination to prepare for the day we can practice again, because we will get through this. For those of us with school-aged children, the added bonus of homeschooling our kids has been a fun challenge! Read more

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Editor’s Corner April 2020

 Fredericksburg Fluoridation Vote Results Called into Question

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President’s Message February 2020

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Do You Pay Your Team Members on a Salary Basis? DOL is Changing the Rules!

 

For the first time in over a decade, the U.S. Department of Labor has issued a final ruling on an increase to the salary threshold for exempt employees.  Starting on January 1, 2020, employees will need to be paid a minimum of $684 per week or $35,568 per year to meet the salary qualification for exempt status.  This is an increase from the current exempt threshold of $455 per week or $23,660 per year.

What Does This Mean for Dental Employers?

If you are paying any of your employees on a salary basis you need to know whether you are paying employees as “salary exempt” or “salary non-exempt” – and if you are in compliance with federal rules.

To understand this, you need to separate the payment method from the classification.  Salary and hourly are payment methods. Exempt and non-exempt are employee classifications.  More specifically, the latter categorizes employees by determining whether they are exempt from the Fair Labor Standards Act requiring non-exempt employees to be paid minimum wage and overtime pay.  You are not required to pay overtime to exempt employees so long as they are paid the same amount of salary each week. 

Exempt vs. Non-Exempt Employees

Most employees in a dental practice are non-exempt because they do not meet the two standards for exemption.  To consider an employee exempt from FLSA, they must be paid at least the minimum salary threshold and meet a duties test in at least one of the three categories: executive, administrative, or professional. 

You know the new salary threshold but let me simplify the duties tests.  In most cases, it’s likely the only two positions in your practice that meet qualifications for exempt status are your Dental Associate (professional exemption) and your Practice Administrator (executive exemption).  The PA or Office Manager can be exempt so long as they are directly managing at least two employees with the authority to hire, fire, or discipline those they supervise. The Office Manager who just makes the schedule and deals with patient complaints while still taking on the regular front desk administrative duties would not qualify as exempt. 

All other employees should be considered non-exempt.  In some cases, there can be exceptions made for a hygienist who has completed four years of professional study.  However, their education must be obtained from an accredited college or university that was approved by the American Dental Association’s Commission on Accreditation of Dental and Dental Auxiliary Educational Programs at the time of study.  If your hygienist consistently works less than 40 hours per week, it’s likely not worth the risk of classifying them as exempt if they do not meet the qualifications. 

Pro tip – you won’t have any problems classifying an employee who could be exempt as non-exempt; however, you could have an expensive problem if you classify an employee who should be non-exempt as exempt.  The safer course is to consider the rest of your team as non-exempt employees, require them to track their time, and pay the overtime rate (1.5x regular hourly rate) for any hours worked over 40 in a 1-week period. 

What If I Pay All My Employees A Salary?

Occasionally, an owner dentist will tell me they pay their entire team on a salary basis.  Either they heard it was a good idea for employee retention or they don’t want to deal with time sheets.  Regardless of the reason – or whether this is a good idea, which is an entirely different article – there needs to be an understanding of the regulations surrounding employee classification. 

You can have a “salary non-exempt” employee.  However, because this employee does not qualify for exempt status, you should require them to track their time and will need to pay the overtime rate for any hours worked over 40 in a 1-week period.  To calculate this rate, divide their weekly salary by 40, then multiply by the number of overtime hours worked and add to the base salary pay for the week overtime was earned.

It’s not as complicated as it seems.  Just be aware that if you have a truly exempt employee, you need to ensure they are paid the minimum salary threshold each week they work to avoid paying overtime.  If you are paying a set salary to non-exempt employees, regardless of how much the salary is each week, you need to have them track their time and are required to pay them overtime (or make sure they don’t work past 40 hours in any given week).  Stay compliant!

By Kara D. Kelley, SHRM-CP, Dental HR Consultant at Parkhurst Consulting CPA PC

 

Editor’s Corner February 2020

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