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Liability

Vol. 1 2020

COVID-19 ISSUE

Protect property, patients and staff:

Limiting risk during COVID-19


STEPS TO MANAGE YOUR PRACTICE LIABILITY DURING COVID-19 AND HELP YOU PREPARE FOR WHAT’S NEXT. 2


Lifeline Liability

The COVID-19 pandemic has brought an unprecedented interruption to dentists and their practices. The switch to emergency-only care was abrupt, presenting unique challenges and questions about how to prepare your practice, property and patients when your office is not open to provide care as usual. Even if routine care in your practice is paused, it is still crucial to maintain strategies that reduce risk and limit liability while you and your team are away. This special edition of Liability Lifeline offers guidance to manage your risks during this time, including keeping your team safe while telecommuting, what you need to know when practicing telehealth and ensuring your office property is safe and secure. These strategies can protect your dental practice while you’re away and help you plan for a successful return when it’s time to resume routine care.

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Prepare property for extended time away With routine care suspended and social distancing measures in place, the dental team likely isn’t spending time in the office each day. Suspending general practice for an indeterminate amount of time takes preparation to ensure property is well protected. Theft and property damage are key considerations when you won’t be at your office for more than a long weekend. While preventive measures are always the best deterrent, the COVID-19 pandemic is an unprecedented situation that impacts owners’ ability to access and manage their properties as they normally would. Take the recommended actions you can today, and use any available time during prolonged interruption to 4

plan for best practices to protect your property during future disruptions, short or long.

Deterring theft When thieves know many businesses are unoccupied, they take advantage accordingly. While no solution is foolproof, the goal is to make it as difficult as possible for criminals to succeed. Most thefts are crimes of opportunity, meaning thieves gain entry via unlocked windows or doors. Taking the time to make a full sweep of the entire perimeter, checking all windows and doors as well as interior cabinets and locked cupboards is one of the best protections against theft.

The Dentists Insurance Company recommends dental practices invest in high-quality window and door locks. Brightly lit entrances and parking areas are also good deterrents, as are clearing away bushes, trees and other places for thieves to hide. It’s also a good idea to store valuables such as computers, cameras and drugs in locked cabinets as a secondary barrier. Installing surveillance cameras, security systems, motion detectors and audible alarms on windows and doors can also thwart a thief.

Property damage Another issue concerning prolonged interruptions is preventing damage to property, whether via water or fire. One


Lifeline Liability

of the most common claims handled by TDIC results from a buildup of water pressure due to a lack of use during long office closures. Should there be a point of weakness in a flexible water line, the pressure can be enough to cause the line to burst, flooding the office. TDIC advises practice owners to shut off the water to their building or suite prior to being away for an extended period and to ensure valves are in good shape. Dental offices should have a water delivery shut-off valve, which should be routinely checked to make sure it is functioning properly. One way to do so is to shut off the water valve and turn on the water at a sink and let it run. If the shut-off valve is functioning, the water will stop flowing once the water in the line has run out. If the water continues to flow, the valve has failed. TDIC reports that water heater failures (and subsequent leaks) are another common property claim. Because water heaters are often behind closed cabinets, leaks can easily go undetected. If the leak continues for extended periods, the damage can be catastrophic. TDIC recommends practice owners check their water heaters regularly. Basic maintenance includes flushing and cleaning the water heater twice a year to clear out sediment and mineral deposits; checking the sacrificial anode rod(s) every two years to prevent rusting; and verifying that the water pressure is no higher than 80 psi every four to six months. In addition, practice owners and staff should be aware of the signs that a water heater might be failing. This includes water that is cooler than normal; rusty-colored water coming from faucets; popping, crackling or

rumbling noises coming from the water heater; water with a metallic taste; rust on the bottom of the water heater’s exterior; and of course, puddles of water accumulating on the floor.

Theft and property damage are key considerations when closing a practice for anything other than a long weekend. Fire is another concern for dental practices. Common causes of fires include everything from faulty wiring to human error. In one case reported to TDIC, faulty wiring inside a neon window sign sparked a fire that spread to an upholstered sofa in the reception area, causing hundreds of thousands of dollars in damages. A few months prior to the fire, there was a short in the sign. Rather than hire a licensed electrician

or replacing the sign altogether, the office hired a handyman to repair it. Faulty wiring is one of the most common causes of workplace fires within dental offices. Human error also causes many office fires, such as overloading electrical outlets, leaving space heaters running and improperly venting computers. Old, outdated wiring coupled with the demands of dental equipment can be a recipe for disaster. TDIC recommends practice owners regularly inspect their electrical systems or, if leasing, work with the property owner to make sure the systems are in good working order and up to code.

Make a plan to protect your practice. For most people — dental teams included — it’s natural to feel uncertainty and unease when your regular practice is disrupted. But by taking a few basic precautions, you’ll have the peace of mind that you’ve taken proactive measures to protect your practice and your property. 5


Practice Interruption Checklist Be proactive before a prolonged pause in practice. Use this checklist, and add reminders specific to your practice, to protect your property and the equipment you rely upon. Waterlines n Empty the delivery unit water bottle.

Reattach water bottle and pressurize by turning the unit on. Purge waterlines by activating A/W syringe, HP tubing, quick connects and/or scalers until all water is dispensed.

n For straws, follow the procedure above

and leave the straw on the pick-up tube with bottle reattached.

n Flush suction lines and use enzyme cleaner.

Mechanical Room n Turn off nitrous units, including shut-off valves on all tanks.

n Confirm that the vacuum is powered

off, but electricity is still supplied to the vacuum system, as some brands perform periodic cycles.

n Shut down power to air compressors so the units don’t run while not in use.

n Swap out the cartridge in the amalgam separator to avoid particles hardening.

n If the office is not equipped with a

main master water shutoff valve, shut off the water inlet valve to vacuum pump by hand.

Operatory n Clean chairside vacuum traps and replace screens.

n Run recommended vacuum cleaner through lines.

n Clean and lubricate all valves and

O-rings in HVE and saliva ejectors.

n Perform shock treatment on delivery system water lines and flush the system according to the manufacturer’s guidelines.

n Remove and empty all self-contained water bottles and flush the lines until empty and free of water.

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n If the office is not equipped with main

master water shutoff valve, shut off water valves by hand at the foot of each chair.

n Remove and clean slow speeds and motors from delivery unit hoses.

n Remove all handpieces, lubricate and sterilize.

n Turn off power to all dental units. n Turn off nitrous and oxygen tanks.

CAD/CAM n Follow the manufacturer’s recommended cleaning procedure for the mill and unplug the unit and empty out the water tray, as applicable.

Lab and Sterilization Room n Follow the manufacturer’s

recommended cleaning instructions.

n Drain all sterilizer water reservoirs. If possible, suction out reservoirs where needed with HVE.

n Unplug sterilizers to avoid any power surges.

n Drain the ultrasonic cleaner and remove any instruments.

n Run water through the model trimmer to avoid plaster buildup, flush extra water through drain and hand shut off the water inlet valve.

Imaging n Turn off all X-ray equipment and

unplug cone beam/panoramic units.

n Remove all handheld X-ray batteries from their charging cradles.

n Drain any chemicals or dip tank. Allow to air dry.

Security Measures n Ensure that your security systems and surveillance cameras are operating properly.

n Set up or test remote access to your security systems.

n Test cameras for optimal positioning

to view areas of concern or potential vulnerability, such as back entrances or areas not visible from the street.

n Ensure that the security company has

your current contact information, as you may need to be reached at home; update again when returning to the office, if necessary.

Property Management n Check that you have correct contact

information for the property management office and that they have yours. Inquire about any changes to the office’s hours or services.

n If the closure is prolonged and/or

multiple businesses will be closed, contact the property management office to better understand their role and routine. Will someone be checking on the businesses? If so, at what frequency? Has private security been hired?

Front and Back Office n Perform and double-check a backup of your server to avoid data loss.

n Turn off hardware such as scanners, speakers and desktop printers.

n Turn off or unplug coffee makers and breakroom small appliances.

n DO NOT turn off or unplug the following:

• Fax machines • Phones • Servers and backup drive systems • Security systems • Internet/router Cleaning and Maintenance n Clean the refrigerator and check that is still running, especially if used to store dental materials.

n Clean aquariums, if time permits,

and make arrangements to maintain cleanliness and fish feeding. (Saltwater tanks are especially sensitive to temperature changes and salinity levels.)

n Contact janitorial and other outside

services to make arrangements for communication, service frequency and access during suspended practice.


Cyber hacks and attacks? We’ve got you covered.

Now is the time for strong Cyber Suite Liability protection. Cyber criminals are using COVID-19 disruption as an opportunity to send targeted phishing emails and spread malware attacks to dental practices. Practice owners need coverage beyond data compromise to protect their records and reputation from pervasive cyberattacks. TDIC Commercial Property policyholders with Business Owner’s coverage can now add comprehensive Cyber Suite Liability coverage to better respond and recover: • Data compromise response expense • Computer attack and cyber extortion • Liability coverage for data compromise, including regulatory proceedings, network security and electronic media Contact our experts today to learn more, get a quote or apply.

Protecting dentists. It’s all we do.

®

800.733.0633 | tdicinsurance.com | CA Insurance Lic. #0652783 @TDICinsurance Coverage specifically underwritten by The Dentists Insurance Company includes Professional Liability, Commercial Property and Employment Practices Liability. TDIC also underwrites Workers’ Compensation in California. TDIC Insurance Solutions offers other coverages as an agent or broker by agreements with our partner insurance carriers. Available coverage limits and discounts vary by carrier and are subject to carrier underwriting. Special Features and Optional Riders offered in policies may vary by carrier. The information provided here is an overview of the referenced product and is not intended to be a complete description of all terms, conditions and exclusions. Cyber Suite Liability product not available in all states. Other Cyber products may be available though outside carriers in Idaho, Montana, Oregon, Tennessee and Washington.


Evaluate patient-facing communications. • Create email and document templates for communications with patients, such as allowing PHI communication via email and messaging with referral sources. • Review your website to confirm that all links are working and information is accurate. Are the dental team members’ photos and names current? Does the patient experience represented align with your office’s situation and availability?

Put disrupted time to work with planning and education For any small business owner, navigating through unexpected change can create stress and anxiety. While there are many aspects of the COVID-19 situation that cannot be controlled, practice owners still have choices when it comes to how they put their time to use while regular practice is paused. The recommendations below are intended to help your practice be proactive and productive until the time normal patient flow resumes.

• Download the latest versions of patient forms. TDIC provides informed consent forms for 17 procedures in nine languages as well as health history forms, records authorization and more. Policyholders in Montana, Oregon and Tennessee can access region-specific forms; policyholders in Idaho and Washington can access region-specific forms as well.

Get your records in order.

Take part in remote education.

• Take time to update or create your employee manual. The Dentists Insurance Company provides policyholders comprehensive, customizable templates. Contact TDIC’s Risk Management experts to access a template that’s specific to your state.

• Catch up on C.E. by taking online courses through TDIC or your state dental association. For a limited time, TDIC is waiving fees for its online Risk Management seminar on reducing nerve injury risks (3.0 C.E. credits).

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• Check in with your referral sources and confirm their availability and contact information so it is current if the need arises.

• Learn more about your office’s software. Use tutorials to better understand billing and patient scheduling programs.

• Check your outgoing message or answering service to ensure that patients are receiving clear instructions on how to reach you in the event of a dental emergency. Also check any automated text or email messaging for appointment confirmations, reminders, etc.

Take time to update or create your employee manual. Get ahead of return patient scheduling. • Review charts to determine who is overdue for routine care and who has missed appointments so you can immediately begin trying to fill the schedule when the office’s reopening date is anticipated. • Review charts and schedules and prioritize scheduling of patients who are midtreatment. • Start planning staff training in advance of reopening. If there are processes or protocols that need improvement, you may now have the time to be strategic in your approach to training. It’s an opportunity to reevaluate issues caused by speed in the past — like incomplete documentation or treatment templates — and make them right.


Lifeline Liability

Take care of your total health and well-being. • Practice self-care and be attentive to your mental health. Take a walk or ride a bike, keeping in mind the COVID-19 advisories for your state, county and city.

Review charts and schedules and prioritize scheduling of patients who are midtreatment. • Indulge in a pursuit you previously lacked the time to enjoy: binge-watch a favorite series, read a novel from a favorite author or your book club, create music playlists or watch tutorial videos about your hobbies or areas of interest.

Risk management strategies for telecommuting teams While telecommuting has rapidly become common in the general workforce, dental offices likely haven't experienced a work-from-home environment like they are today. Even if you and your staff are working in home environments instead of the office, there are still important considerations to make to ensure your practice is protected against workers’ compensation liability. Having employees telecommute for any reason can leave employers uncertain about their responsibilities in terms of managing risk. Who is responsible if an employee becomes injured on the job? How is overtime calculated? What about HIPAA considerations?

Telecommuting Risks: Case Study 1 The Dentists Insurance Company recently had a case reported to its Risk Management Advice Line in which a seasoned office manager was injured while working from home after tripping over a power cord. His employer allowed him to work remotely to plan the annual community outreach program, as there were fewer distractions in his home office than in the dental office. One day, as he was reviewing papers, talking on the phone and walking around his home office, he stumbled over the power cord that was connected to his laptop and printer. The result

was a badly sprained ankle as well as hand, wrist and forearm contusions — not to mention broken computer equipment. The office manager was off work for several weeks and received conservative treatment over the span of seven months. He also filed a workers’ compensation claim. Crystal Potch, TDIC’s workers’ compensation claims manager, said the incident could have been prevented had the dentist had a policy in place addressing telecommuting. In this case, the policy should have included a telework agreement and checklist as part of the office’s injury, illness and prevention plan.

Protect yourself: Create safety checklists Prior to working from home, employees should be required to use the checklist to perform a safety inspection of their home-office workspace. The U.S. Office of Personnel Management offers a safety checklist and other resources for telework employees at telework.gov/federal-community. For employees who work from home full time, this inspection should be conducted quarterly, Potch said. “Employees should review the safety of their workspace to ensure it is free from hazards. They should complete and sign a checklist confirming that this inspection was completed.” continued on page 10

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continued from page 9

Telecommuting Risks: Case Study 2 In another case reported to TDIC, a special projects coordinator was in charge of preparing a dentist’s presentation for a conference. She was allowed to work remotely to research, analyze and summarize the presentation material. Over the period of a few months, the employee began to suffer from excruciating pain in her neck, shoulders and wrists. Her pain became so severe that she was unable to perform her work. She filed a workers’ compensation claim due to her injuries and received treatment, which included injections, physical therapy and surgery to correct what was ultimately diagnosed as a cumulative trauma injury. Her employer was surprised that she experienced such a severe injury, as he provided her with all necessary office equipment, including an ergonomic chair, for use at home. It was soon discovered that she failed to use the chair, instead working from her bed or couch, which did not provide her with the necessary ergonomic support to keep her in a neutral working position throughout her work day.

Protect yourself: Document teleworking policies Potch said that employers who allow staff to work from home must outline the requirements of teleworking. Policies must be in place directing employees to work in ergonomic environments free from hazards. These policies must specify that employees who develop pain must follow up with their manager or supervisor, requesting an ergonomic evaluation, if applicable. Employees 10

should sign the policy acknowledging they understand and accept the conditions of telecommuting.

Adhering to employment regulations Another consideration regarding teleworking is regulating work hours and meal and rest periods. Nonexempt employees must still follow state and federal guidelines with regard to overtime and breaks, regardless if they work from home or in the dental office. This information should be outlined in office policies and signed by the employee.

Having employees telecommute for any reason can leave employers uncertain about their responsibilities in terms of managing risk. The Health Insurance Portability and Accountability Act (HIPAA) is another concern. It is an employer’s duty to ensure patients’ protected health information (PHI) is kept private, and that duty applies both within and beyond the dental office. The greatest concern with regard to telecommuting is the use of email. HIPAA recommends the use of encrypted email and messaging platforms, but should an employee

use a personal, nonencrypted email service from home, it increases the likelihood that the PHI could be accessed by an unauthorized individual. Even the seemingly innocent practice of emailing a patient’s records from a company email to a personal email so that the file can be worked on at home puts the information at heightened risk of unauthorized access. To remain compliant, employers can install virtual private networks (VPN) on employee computers and specify that communication with patients should only be conducted via these encrypted systems, not via Gmail or other web-based email providers. Practices must also be diligent in capturing any relevant communications in patients’ charts.

Direct and frequent communication Ongoing communication is key to preventing workplace injuries and protecting your practice from other liability claims — even when the workplace happens to be an employee’s home. Developing a formal telework policy, providing trainings and following up with regular emails, phone calls and video chats will keep your employees informed of their responsibilities as remote workers. Whether teleworking is considered a privilege or a necessity, it requires consistent communication and strict adherence to office policies to protect your employees and your practice. But it also requires the flexibility to adapt and manage through crisis to sustain your practice.


Take part in online C.E. Benefit from waived fees.*

TDIC is here to support you with more resources and fewer fees. For a limited time, take the current risk management online course at your convenience and no cost.

Pain & Perception: reducing nerve injury risks Through 24/7 online education, you can learn to build your confidence when handling patients who experience prolonged numbness after dental procedures. Enroll in the risk management online course today: • Benefit from waived course registration fees* • Earn 3.0 ADA CERP credits upon completion • Get the latest guidance to protect your practice Register now at tdicinsurance.com/seminars. *Fee waiver valid until September 1, 2020.

Protecting dentists. It’s all we do.

®

800.733.0633 | tdicinsurance.com | Insurance Lic. #0652783 @TDICInsurance

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Protocols for telehealth and virtual visits Although dental practices nationwide have been suspending the provision of routine care to help prevent the spread of novel coronavirus in accordance with state directives and CDC recommendation, dentists must either remain available to patients of record who require emergency dental treatment or have arranged coverage for emergencies with another dentist. Offering telehealth consultations can allow the dentists to address patient concerns and allow triage of patients to appropriate emergency dental services. “Telehealth” is the mode of delivering health care services via telephone or video technologies to facilitate the diagnosis, consultation, treatment, education, care management and self-management of a patient’s health while the patient and the health care provider are at distant sites. Telehealth can be delivered in two modes: synchronous and asynchronus. Synchronous services occur in real time, such as a consultation using video technology. Asynchronous or store-and-forward services occur when data or information is transmitted before or after the appointment. Here are answers to a few common questions about adopting telehealth services. Keep in mind that each state regulates telehealth according to its own laws, and your state dental board is the best source of information for specific regional, legal and ethical considerations. Q. What services can be performed virtually? A. The standard of care is the same, whether services are in the office or over telehealth platforms. Initial consultations can be done remotely, but functions such as perio charting and radiographs may not be done remotely without a qualified auxiliary performing those functions.

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Q. Does my TDIC professional liability policy cover teledentistry? A. TDIC policyholders generally have the same professional liability protection from legal obligations resulting from claims of wrongful or neglectful practices, whether the care is delivered in person or through teledentistry modes. However, TDIC can’t make blanket coverage determinations, and a claim would

have to be submitted for TDIC to fully evaluate coverage for your particular case. Telehealth is not without risks, and while the scope of coverage under the policy remains the same, dentists must adhere to proper protocols and the current limits of their state licensure to ensure they are insurable with TDIC upon renewal. Contact your trusted TDIC advisor to learn more or discuss coverage specific to your situation. Q. Do informed consent forms need to be modified for virtual visits? A. Prior to the delivery of health care via telehealth, the provider should verbally inform the patient that telehealth may be used, obtain verbal consent from the patient for this use and document consent in the patient’s record. Check your state law for specific requirements. TDIC recommends that dentists also provide a consent form, which notes telehealth risks, benefits, confidentiality and rights, for the patient to review and sign before the virtual visit. Your dental association may be able to provide additional resources to help you comply with state-specific rules and regulations. In addition, obtain up-to-date health histories for new and current patients, and document patient charts with virtual visit notes, just as you would for an in-office visit. Q. Do the patient’s dental benefits cover telemedicine? Will I be reimbursed for virtual visits? A. The ADA continues to provide evolving guidance on use of the teledentistry codes. Refer to


Lifeline Liability

COVID-19 Coding and Billing Interim Guidance for help with issues related to virtual appointments during the current pandemic. Many benefit plans are experiencing response delays as they transition to remote work environments. Online portals may provide access to your patients’ eligibility, benefits, treatment history, frequencies, remaining maximums and deductibles. And one of the easiest ways to reduce the risk of slow-pay claims is to submit electronically. Q. What about privacy and HIPAA concerns? A. When using telehealth technology, especially when practice staff who are working remotely have access to patient data, dentists should have protocols in place to protect the patient and the practice from risk. The communications technology should not be public-facing. Examples of non-public facing technologies include Skype, Apple FaceTime and video chat via Facebook Messenger, Jabber, WhatsApp and Google Hangouts. In normal circumstances, HIPAA requires a covered entity to have a business associate agreement with these platforms and include them in security risk analyses prior to use. Once the current emergency ceases, covered entities are expected to again be in full compliance with the regulations. The Office for Civil Rights at the U.S. Department of Health and Human Services recently issued guidance on telehealth remote communications following its Notification of Enforcement Discretion. The OCR is currently exercising its enforcement

discretion to not impose penalties for HIPAA violations against health care providers in connection with their good faith provision of telehealth using communication technologies during the COVID-19 nationwide public health emergency. Learn more about the HHS Notification and get additional guidance from the OCR about HIPAA and telehealth.

Offering a telehealth consultation can allow the dentist to address urgent patient concerns and allow triage of patients to appropriate emergency dental services, keeping patients out of the emergency room due to dental emergencies. While dentists are always mindful of privacy and confidentiality concerns, remember that best practices protect the patient experience and practice reputation, whether or not OCR violations are enforced.

Q. What about cybersecurity risks? A. The utilization of new technologies often brings new security considerations. The facilitation of telehealth may create new cyber exposures for the practice. Existing technologies may already have exposures that could adversely affect your ability to securely provide telehealth. Contact your trusted TDIC advisor to discuss possible exposures, coverage implications and steps to reduce your risk. Be aware that ransomware hackers are already using the COVID-19 pandemic to their advantage. TDIC will keep you informed about emerging risks and timely prevention and response tactics. Q. Can telehealth care be provided across state lines? What are the licensure requirements? A. Dentists are cautioned to only see patients who are located in a state in which they are licensed or authorized to see patients under a federal or state waiver. The delivery of teledentistry services must comply with each state’s scope of practice laws or regulations. According to the patients’ rights in the ADA Policy on Teledentistry, dental patients have the right to expect that any dentist delivering services using teledentistry technologies will be licensed in the state where the patient receives services or be providing these services as otherwise authorized by that state’s dental board. Additionally, patients have the right to access the licensure and board certification qualifications of the oral health care practitioner who is providing the care in advance of the visit. 13


Lifeline Liability

Liability Lifeline is published by: The Dentists Insurance Company 1201 K Street, 17th Floor Sacramento, California 95814

©2020, The Dentists Insurance Company

Endorsed by: Alaska Dental Society California Dental Association Hawaii Dental Association Idaho State Dental Association Illinois State Dental Society Nevada Dental Association New Jersey Dental Association Oregon Dental Association

Need one-on-one risk management guidance? • Get answers to your critical questions through a confidential phone consultation with an experienced TDIC risk management analyst. • Request a consultation at a time that’s convenient for you at tdicinsurance.com/RMconsult or by calling 800.733.0633. • For Risk Management guidance in Idaho, Oregon or Washington, call 800.452.0504.

Washington State Dental Association Also in: Arizona, Minnesota, Montana, North Dakota, Pennsylvania and Tennessee

TDIC reports information from sources considered reliable but cannot guarantee its accuracy.

Protecting dentists. It’s all we do.

®

Risk Management Advice Line | 800.733.0633 | tdicinsurance.com

@TDICinsurance