When the Attorney General Comes Knocking: IC Violations and Your Dental Practice

If they had these items, let's just say it was a disgruntled patient who turned them in for no good reason other than they didn't want to pay their bill, or a staff member who turned them in because they didn't get that vacation or raise they wanted. I'm telling you, this would go away immediately without them ever visiting the office. They're worried about prosecuting organized crime or violent criminals. They want to get this out of their hair. Welcome to the Phil Klein Dental Podcast. So what would you do if a letter showed up in your dental office mailbox sent by the attorney general's office? You open it up and it's a subpoena for you to provide detailed information about all aspects of your practice related to infection control based on CDC guidelines. And I mean things like documentation on when the last time the waste management company came to collect your used needles and other hazardous materials. documentation on how often you perform spore testing on your autoclaves, and it went on and on. Not a letter you want to receive. And what do you do if you only have some of this documentation, or perhaps none of it, or it's all outdated? Well, this actually happened to a dental practice. And here today to tell us about it is our regular contributor on this topic, Dr. Carson Carpenter. Dr. Carpenter is a dentist and president and CEO of Compliance Training Partners. Dr. Carpenter will be joining us in a moment, but first, for the optimal bond between zirconia and your resin cement, check out Bisco's Z-Prime Plus, rated best in class by thousands of top clinicians. Z-Prime Plus, featuring MDP, creates a strong, reliable bond to zirconia, metal, and aluminum substrates. And nothing could be simpler. It comes in a single bottle, and it's 100% compatible with both light-cured and dual-cured resin-luting cements. It's time you get the most out of your zirconia restorations. To learn more about Z-Prime Plus and the entire Bisco adhesive product line, visit bisco.com. Dr. Carpenter, thanks for being on our show today. I feel great to be back again, and thanks for having me. So in our discussion today, Dr. Carpenter, we're going to be talking about several different things, but we'll begin with this case where this practice received a letter, or you mentioned subpoena, from the Attorney General's office. Typically, a subpoena requires somebody to appear in court, but you use the term subpoena offline, so maybe it's some form of a subpoena where it requested documentation of the practice's CDC guidelines. or CDC protocol that is currently in place in the practice. A complaint was originally submitted to the board of dentistry of that state that the practice is in. And I will say these discussions that we have about these kinds of cases receive a lot of engagement from our listeners. And partly, I guess it's because they're living vicariously through these discussions. Not that they want to be in these situations because no one does, but... It's almost like, what would I do if something like that happened to me in my practice? So they are tuned in pretty attentively to these discussions. And we're going to be talking about a variety of different things today. But let's begin with the case where the doctor received this letter or subpoena from the attorney general's office. I'm glad to do that, Phil. And you know, you mentioned that listeners can live through this vicariously, and that's the best way to do it. Trust me, you don't want to be the guy going through this. This is no fun at all. A lot of lost sleep over something like this. Basically, what happened is this. It appears, and they're not telling them, either a patient or an employee made a complaint. It sounds like it started with the Board of Dentistry. the attorney for the board of dentistry got a hold of this again this is an infection control allegation a breach of infection control they passed it up the line to the attorney general's office so this poor doctor receives a subpoena from the state's attorney general requesting a number of different things and and to me what's really interesting about this phil the reason i want to talk about this case a lot of my colleagues say you know i'm not that worried about the cdc guidelines They don't have inspectors. It's not a federal law. But guess what? The state is enforcing this as if it were a law. It seems odd to me, Dr. Carpenter, that the Board of Dentistry would send it up the line to the attorney general's office without going back to the dentist and hearing his or her side of the story, number one. And number two, the attorney general certainly has other things to do that may be higher priority than going after dental practices like fighting organized crime, racketeering. and so forth so it's just a little surprising so it makes me suspect to some extent that possibly what's going on behind the scenes is that maybe the dental office did not respond to the board of dentistry so they got frustrated and sent it up the line or there's a record of previous complaints by patients or employees or whomever that the office is not complying with infection control protocol properly Well, you know, Phil, I agree. It seems really heavy-handed to go right to the state's attorney general. Yet, that being said, it could very well be the policy of this particular board of dentistry to do so. Maybe they're understaffed. Maybe it was a repeat violation, but they certainly could do this even if it was the first time. If the first time this office ever came onto the radar, it's their policy to... to push it up and say, let's get a subpoena. Let's go right to the attorney general's office. It's their right to do so. So the practice gets a letter from the AG. And then how did you get involved with this case? And what happened following that? Well, the way we got involved with it, as you know, we work with all the major distributors in the U.S., although I'm trained as a dentist, like you are. We have clients, of course, in dentistry, in medicine, and even in animal health and veterinary medicine. But we work with all the major dental distributors and the dental distributors refer things like this to us. This came from a distributor rep who was very worried for his client and asked us for help. So your involvement began after opening up a conversation directly with the dentist who owns the practice. In this case, I spoke directly to them, spoke directly to them. And really what we can't do is we can't change what they haven't done, but we can provide guidance. And of course, the Department of Public Health can really do a lot of things that are not good here for your practice, like close it down, like pull your license, like put you on probation. So you can imagine how disturbing it was for this doctor to have to deal with this. So typically when you get a subpoena from the attorney general's office, you need to get a lawyer because typically subpoenas want you in court. Did this person need to get an attorney? Well, in this case, what's interesting, this is a subpoena for records. Now, if they can produce records that appease them, it may not go to court. It's a subpoena for records. And I'll give you an example of some of the things they're asking for. And again, this is why don't let anybody tell you, well, don't worry that much about infection control. It's guidelines. You can kind of do what you want. These are just guidelines because, in fact, it's even called CDC guidelines. that's not the case because here's what they asked for first of all they want a copy of your written infection control manual okay so you might not find any place in the law that says you need to have a written infection control manual but but you do it's it's assumed you have to have written protocols in any business just like when you take off in an airplane right you've got to have a checklist you've got to have documents so that's the first thing that they didn't have the next thing is Proof of training of staff in CDC infection control guidelines for dentistry, not just enough. to say, well, yeah, we did train them. We need a log. We need a certificate of training, which is why we always advocate verification by a third party, like our company, for example. So here's the $6 million question. Did the office that received the letter from the attorney general have those documents that were requested by the AG in that subpoena? They did not. They did not. Like so many doctors, we get busy. We think we're going to do it later instead of delegating it to somebody, holding them accountable, maybe working with another company that has expertise in this. They didn't do it. They didn't have any of these things. And there were other things that were asked for that they did have. One, continuing education requirements for all dentists, licensed hygienists, licensed auxiliaries. They were, in fact, eligible for licensure. They also wanted to see, this was interesting, they wanted to see a contract with their waste management company. What they wanted to see was that they were, in fact, getting their sharps containers picked up at the every 90-day interval. And again, if you don't have those documents, it's a violation. Yeah, it seems to me the Attorney General is digging pretty deep into the infection control practices of the office. especially if they want a schedule of pickup of waste management material. So they apparently got the list from the board of dentistry and they're just enforcing it. You're absolutely right. I'm certain that this attorney general acting on, or this attorney, I see his name here, acting on behalf of the attorney general of the state said, I have no idea about infection control, but I've been sent this list. In fact, maybe he was even sent the CDC guidelines because it even went further, Phil. They asked for documents, again, reflecting the dates of pickup of hazardous medical waste, including sharps, red bag waste, et cetera. But they wanted a copy of spore test results for all sterilization equipment. So all autoclaves, all statums. So again, if you don't have those results for weekly testing for all devices, You're in violation. And when they ask you for this, you've got a big problem. Furthermore, they asked for proof of water testing so that the dental unit waterline testing was performed at a regular basis. And I'm assuming they would want to see what the EPA recommends, namely quarterly testing. This whole case is a nightmare for the practice. I could imagine how much stress it is. And, you know, the bottom line is you got to. have protocol in place because like anything else, once you get audited by the IRS, you are examined with great scrutiny and they're looking through every little line item and nobody's perfect and they'll always be able to find something. So the moral of the story is be prepared with all of your documentation, do your training, do all the things you need to do to comply with CDC guidelines because you never know when something like this is going to happen. To me, the silver lining for this, the thing that we can all learn, that I want my colleagues to learn, I guess it doesn't matter if you think they've overstepped their bounds here or if they haven't or if you think the laws are right or wrong. You've got a business to run just like I do. And think about this. Really, these are the things that we teach every day. If you delegate to the proper person in your office, if they have guidance from some people with some expertise, it's not hard to have a written manual. It's not hard to have the water test, the spore test, or have proof of CE or proof of specifically education on bloodborne hazards. It's just not that hard. So I'm really urging all of you, get this done ahead of time, because if this office had had these items, and there's no tricks here. These things are all things everybody knows we need to do. If they had these items, let's just say it was a disgruntled patient who turned them in, for no good reason other than they didn't want to pay their bill or a staff member who turned them in because they didn't get that vacation or raise they wanted. I'm telling you, this would go away immediately without them ever visiting the office. They're worried about prosecuting organized crime or violent criminals. They want to get this out of their hair. Let's give them an opportunity by doing these things. It's so easy. I've been involved with a lot of cases of our clients who have done these things. And they go away quickly. So there's a lesson learned here for sure based on what this office is going through. But the main concern, of course, should be the health of the patient, the health of the employee. So we do what we can to prevent the transmission of bloodborne pathogens and disease within the office. And we also have so many other responsibilities when it comes to running a dental practice. And you don't want to be held back by this kind of audit, this kind of scrutiny. It's just devastating as far as resources and time and money. and could, in the worst scenario, shut your office down. Exactly. We've got to do this to protect our business. I mean, we all know the challenges facing dentistry right now. Manpower shortages, insurance reimbursements, competition. We don't need this. And, you know, I've lectured to dentists all over the United States, almost all 50 states, I think, over the years. And the problems are the same. everywhere. We're all going to have a certain percentage of patients that are going to be difficult and try to create a problem for us. We're all going to have a certain percentage of employees that are going to try to make things difficult for us. So don't show any weakness to them. Don't give them a place where they can attack. And this is what I'm seeing. I'm seeing things like this being weaponized. We'll be right back with Dr. Carpenter in a moment. But first, we all know that to achieve healthy, beautiful smiles, we sometimes need to align the teeth. and to do so, aligner therapy is a great option. So why not set your practice apart with 3M Clarity Aligners Flex from Solventum, formerly 3M Healthcare. Designed for comfort, Clarity Aligners Flex feature a thin, flexible design, yet they deliver excellent force persistence over a two-week period. Plus, they resist scratching and stains, and they're backed by a dedicated clinician team providing support every step of the way. With a variety of affordable case type options, single or dual arch, Clarity Aligners Flex offer a great value to your patience and practice. To learn more, visit 3m.com slash clarity dash aligners dash flex. If they see you have all your ducks in a row, they're very unlikely to turn you in for something like this, knowing you're going to win anyway. The practices that are vulnerable, and the employees know it, any more than we've all heard of the practitioner who did something like, maybe took cash and didn't report it, and the employee knows it. Well, don't take that chance. Think about the worst case scenario. We don't want to have somebody have something on us. And infection control is a major problem today. I see this happening to our colleagues all across the country. So what's your recommendation, Dr. Carpenter, for the practice that overall has a pretty tight infection control protocol? They might even have an ICC, an infection control coordinator. And everything is running very tight, but no one's perfect. And there might have been some mishap with the spore testing of an autoclave or whatever, some small violation. And you overall have done a great job as a practice owner to make sure that CDC guidelines have been followed fairly stringently. and your whole staff is on board but you get this disgruntled employee that reports you for a violation what's the best way to respond to a letter from the board of dentistry, for instance, indicating that there's a complaint from an employee regarding infection control protocol in your practice? First of all, I find that, let's face it, no practice is perfect. I find that inspectors, boards of dentistry, OSHA inspectors, public health inspectors, if they see you're making best efforts, if they see 90% of it is there, okay. you don't have a training record for that one new employee. You have four autoclaves, that one backup autoclave you didn't test for one week. They'll cut you a lot of slack and not fine you and not shut you down and not take away your license. But when they come into a place and see you haven't even made an honest effort, that's where the real problem is. I actually find these inspectors to be fairly reasonable. in most cases, but they expect you to have the basic things. So we've talked about this, Dr. Carpenter, on previous episodes and possibly a little bit today. The CDC doesn't really enforce guidelines. However, OSHA does. And OSHA's main priority is to look at the employer to make sure they're doing things correctly. And CDC is more concerned about everybody, especially the patients themselves. Tell us where the overlap is regarding enforcement, since CDC doesn't have an enforcement team of their own. And also, what other entities can impose enforcement upon a dental practice regarding violations of CDC guidelines? Well, it's interesting, and I get this firsthand from heads of CDC and OSHA when I've been at conferences and heard it right from their lips, that OSHA... has the ability under the general duty clause to enforce CDC guidelines. Boards of dentistry have the authority to enforce CDC guidelines. Courts, the public, expects us to follow CDC guidelines. So in essence, Phil, really CDC guidelines are enforceable, but you are correct that they don't specifically have an inspector. Somebody else is doing that inspection. And maybe it's an ocean inspector. Maybe it's a public health department. Maybe it's the attorney general's office that's requesting these records. But CDC guidelines really are more than guidelines. They're requirements. So getting back to our friend who received the AG subpoena, they didn't have anything. They weren't properly prepared with documentation. They haven't done training. What's the next step? What do you see the likely outcome to be to something like this? I mean, essentially, they could be shut down completely. And I'm sure you've seen this before in this kind of scenario. Well, I've seen that worst case scenario. But what I normally see is if you behave the way you talked about early in this podcast, if you behave politely, respectfully, professionally, are willing to admit you made some mistakes here, that many of these things were done informally, you don't have it formalized, you don't have this written training. But you're now working with a company, you've scheduled training, you've purchased a compliance manual. I'm not saying it can totally go away, but what they'll do is cut you some slack, give you some time. There may still be a fine involved, but normally I don't see then an office being closed down or a license being pulled. I mean, I guess they're just like you and I. We like to work with people that appear to be reasonable. So my knee-jerk reaction would be if I received something like this and I wasn't prepared and I got it from the attorney general's office, I would look for an attorney. Now, you're not in agreement with me on this because we talked about this offline. What are your thoughts on this? I'm not always a real fan of attorneys getting involved only because an attorney can slow these things down. An attorney can be belligerent and try to state that they don't have. the right to do what they're doing. But ultimately, a board of dentistry, an attorney general's office is going to prevail. I find that working with an attorney, we always give a client that choice. We always say, look, if you want to hire an attorney, by all means, you should go ahead and do it. But I find often it makes it, most of the time, it makes it worse. To me, take the case that we just went over today, the six items that they were asking for. Certainly, even without an attorney being involved, what's wrong with sending those? Those are clear requirements that you need to send those. Maybe if you're still a little nervous, you might hire an attorney and say, look, I'd like to do round one. Is there anything I'm doing here that can get me into trouble? I mean, take some legal advice, but to get an attorney in there, in the ring, fighting with them usually seems to make it worse, in my opinion. These are straightforward things. Provide one, two, three, four, five, and six. It's required by law. I usually provide that. And usually these things can go away. So in the case we're talking about, the person who got the subpoena, you're suggesting that if they don't have something on that list, they should create it immediately and say, you know, we didn't have this, but we have it now. And then whatever they do have, send that documentation in. Absolutely. Immediately start on that. Show good intent. Because if they think you are going to harm the public, that is their role to protect the public. And you risk losing your license and being shut down. So the things that you have, provide them. The things that you don't, be honest and let them know that you don't. But I would sure like to, in that same response, you just say, but they have been ordered. We have begun. Training is scheduled. Show that you're doing something, that you're reacting to this and you take it seriously. Should you? Yeah. Go ahead. If they put you on suspension, if they give you some time to clear this up, that's one thing. If they revoke your license, that's another. Would it help, Dr. Carpenter, to suggest to the Attorney General's office in your response that what you don't have, you're working on now, and you expect everything to be in place by a certain date, so you actually give them a definitive deadline? Yes, I think that's a great thing to do, is give them an abatement date, for sure. Yeah, because at least it shows you're on a path, not only on a path, but you have real intentions to rectify the issues or the violations that were brought to your attention through the letter. And you're going to get it done as soon as possible. Because the last thing you want is to have some authority shut your office down or put you on probation where you can't practice fully until all those violations are remedied. I mean, that's going to be a disaster for the office. It seems to me that that deadline would make a lot of sense. You're right. And I will tell you in the interim, I find it goes a long way when a letter is written that says that XYZ Dental Center, we have always believed in a culture of safety and have attempted to follow CDC guidelines, OSHA guidelines. Maybe it's due to manpower shortages recently. We've not been able to keep up with this, but we have scheduled this. We have purchased that. Respectfully, John Smith, DDS. That goes a long way. Particularly, you think about an attorney general. It goes back to what you said. Don't you think if you're the attorney general, you'd like to get this one off your plate so you can go after the bad guy? Yeah. Let's give them an opportunity to say just that by being reasonable and getting in compliance. Yeah. I mean, again, I find it hard to believe that the Board of Dentistry didn't try to handle this without bringing the AG into it. And when they were ignored. I think they moved it up the chain, but I don't know. And they haven't shared that. No, you're right, Phil. This was certainly the nuclear option, wasn't it? Yeah, it sure sounds like it. And that's why I wanted to go over this one with our listeners because it just shows you what can happen. So in light of all this, I guess a good outcome would be for the office to pay a fine. and obviously not get shut down and that kind of thing. So what have you seen in your experience, Dr. Carpenter, with fines? What does a typical fine look like for something like this? Well, I'll tell you, I've seen fines from $2,500 to $60,000, depending. But you know what really kills you in the dental practice is downtime, let's face it. And when that office is shut down, you're paying employees, you're paying all the overhead. That's a real problem. So to me, many times that's even more expensive than the fine. Any way you look at it, this is very costly. Also, I've been involved with so many doctors over the years. It's very costly for your emotional and physical health. I mean, this is really worrisome. This will keep you up at night. So don't let this happen to you. I do want to mention to our audience before we wrap up this podcast, feel free to visit ComplianceTrainingPartners.com. That's the website associated with Dr. Carpenter's company. where he serves as CEO and founder. And there's actually some tools on there. Tell us about those tools, Dr. Carpenter, before we wrap it up. You know, probably what I would do, Phil, something that's really easy to do, go to the ComplianceTrainingPartners.com website, and you'll find a spot on there where you can download an audit app, an audit checklist. Take that audit app and just go through and see where you're in compliance for infection control and OSHA. and where you're not. And right away, you'll have a good feeling for where you're vulnerable. Again, it's not rocket science. I would start out with that. And if we can help you at that point, we're glad to. Dr. Carpenter, we really appreciate your time. Thanks for sharing this information on our podcast. And we look forward to seeing you in the future. Thank you, Phil. See you next time.