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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

 

Jonathon Kimes 5-13

Editor’s Corner January 2020

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Editor’s Corner November 2019

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Custodian of Dental Records Rule

By Jeanine Lehman, Attorney at Law

On February 22, 2019, the Texas State Board of Dental Examiners adopted a rule on custodians of dental records, as part of the Board’s existing rule 101.11 concerning handling of the practice of a dentist who is deceased or mentally incompetent.

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Scams: What a Tangled Web They Weave

By Jeanine Lehman, Attorney at Law

Dentists and their staff need to be wary of scams.  Here are a few to have on your radar.

 

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Jonathon Kimes 5-13

New Federal Dental Effluent Rules and Important Deadlines

From the office of Austin Water, the official regulating agency of the EPA amalgam separator ruling. Please use the following calendar to ensure compliance with the ruling. The website links are also available on the CADS website, www.capitalareadental.org. Representatives with Austin Water will be on hand during the Capital Area Dental Conference to address the attendees and answer questions.
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Jonathon Kimes 5-13

Prescription Monitoring Requirements

With the recent flurry of activity regarding our Sunset Bill, as well as the passage of the Pharmacy Board Sunset Bill, there has been some confusion as to the requirements for dentists and the Prescription Monitoring Program (PMP). The PMP actually has been in place for some time. From the Pharmacy Board website:

The Texas Prescription Monitoring Program (PMP) collects prescription data on ALL Schedule II, III, IV and V controlled substances dispensed by a pharmacy in Texas or to a Texas resident from a pharmacy located in another state. The Texas Prescription Program (TPP) was created by the 67th Texas Legislature in 1981 becoming effective January 1, 1982, to monitor Schedule II controlled substance prescriptions. Effective September 1, 2008, the Texas Legislature expanded the TPP to include the monitoring of Schedule III through V controlled substance prescriptions. Beginning September 1, 2016, the PMP transferred from the Texas Department of Public Safety to the Texas State Board of Pharmacy. Although controlled substances have valid medical uses, they also have potential for abuse and addiction. Diversion of prescription drugs is a significant abuse problem, and this program was created to be an efficient, cost effective tool for investing and preventing drug diversion. Federal controls monitor the substances from manufacture through distribution to retail facilities. The program seeks to educate and control misuse by following controlled substances to the ultimate user. The PMP may be used by practitioners and pharmacists to verify their own records and inquire about patients. In addition, the program may be used to generate and disseminate information regarding prescription trends. Pharmacies that dispense Schedule II, III, IV, and V are required to report the information directly to the Texas State Board of Pharmacy’s contracted vendor, APPRISS. Prescription data is reported by the prescriber’s Federal (DEA) number. Prescribers and pharmacies are required by statute to have a current Federal (DEA) registration in order to possess, administer, prescribe or dispense controlled substances. Pharmacies are required to submit data to the PMP no later than the 7th day after the prescription is completely filled. However, pharmacies may submit more frequently. Pharmacies, who fail to report, are subject to an administrative, civil, or criminal penalty. Access to the prescription data is statutorily restricted. The information is available to practitioners and pharmacies who are inquiring about their own prescribing or dispensing history on their patients. State regulatory boards have access as well. A person who knowingly gives, permits or obtains unauthorized access to this information, is subject to criminal penalty.

The initial recommendation from the Sunset Committee was to require dentists to use PMP to query each patient, each time, a controlled substance is prescribed to help curb opioid abuse tendencies. This language was never introduced into the Dental Board Sunset Bill, but it WAS PASSED with the Pharmacy Board Sunset Bill. According to HB 2561 (Pharmacy Board Sunset Bill) Sec.481.0764 of the Texas Health and Safety Code shall be amended to read:

 

DUTIES OF PRESCRIBERS, PHARMACISTS, AND RELATED HEALTH CARE PRACTITIONERS.

(a) A person authorized to receive information under Section 481.076(a)(5), other than a veterinarian, shall access that information with respect to the patient before prescribing or dispensing opioids, benzodiazepines, barbiturates, or carisoprodol.

(b)A person authorized to receive information under Section 481.076(a)(5) may access that information with respect to the patient before prescribing or dispensing any controlled substance.

This “person” the new law refers to is you. The language is slightly vague, as it doesn’t specifically mention the PMP, but the intent is clear. If you write a prescription for the above-mentioned drugs, you will be required to use the PMP to query the patient for each RX. The good news is the implementation of this new law has been pushed back to September 1, 2019. One thing that merits mention; the information contained in the PMP database is sensitive and not public record, therefore you must use the information only as intended or you could face criminal penalty. DO NOT get nosy and search for the prescription patterns of your ex, your neighbor, your children’s teacher, etc. Although we have access to this information, this would be considered misuse…the fall out could be severe.
There are some recent TSBDE rule changes that are currently in effect as of December 2016

Texas Administrative Code, Title 22, Part 5, Chapter 111

Each dentist who is permitted by the Drug Enforcement Agency to prescribe controlled substances shall complete every three years a minimum of two hours of continuing education in the abuse and misuse of controlled substances, opioid prescription practices, and/or pharmacology. This continuing education may be utilized to fill the continuing education requirements of annual renewal.

Each dentist who is permitted by the Drug Enforcement Agency to prescribe controlled substances shall annually conduct a minimum of one self-query regarding the issuance of controlled substance through the Prescription Monitoring Program of the Texas State Board of Pharmacy.

Access to the PMP is available through the Pharmacy Board website (https://www.pharmacy.texas.gov/PMP/)

By Jonathon R. Kimes, DDS
Editor, CADS

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The Root April 2017

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