Dr. Janis called me a few weeks ago. He went through a ‘routine’ Medicaid audit from the OIG. He has been audited before and it went by without a hitch. This time, however, the audit is resulting in a $19,000 recoupment. Dr. Janis was aggravated. The issue? No tooth #s and surfaces on his informed consent forms. This information is clearly indicated in the progress notes and on the treatment plan, but not on the informed consent forms. So, what’s the problem?
The Texas Medicaid Provider Procedures Manual, Children’s Services Handbook, Section 3.2.8 (Written Informed Consent and Standards of Care) states, “The written informed consent must identify the tooth and surface IDs associated with the proposed treatment plans.” Here is the entire section:
As outlined in 22 TAC §108.7, the dental provider must maintain written informed consent signed by the patient, or a parent or legal guardian of the patient if the patient is a minor, or a legal guardian of the patient if the patient has been adjudicated incompetent to manage the patient’s personal affairs.
Additionally, as required in 25 TAC §33.6 and §33.20, THSteps providers must obtain legally effective, written informed consent before providing THSteps dental checkups and treatment services. Such consent is required for all oral evaluations; dental diagnostic, preventative, and therapeutic services; and treatment plans. The written informed consent must identify the tooth and surface IDs associated with the proposed treatment and should disclose risks or hazards that could influence a reasonable person in making a decision to give or withhold consent.
THSteps clients or their parents or legal guardians who can give written informed consent must receive information following a dental examination about the dental diagnosis, scope of proposed treatment, including alternatives and risks, anticipated results, and need for and risks of the administration of sedation or anesthesia. Additionally, they must receive a full explanation of the treatment plan and give written informed consent before treatment is initiated. The parent or guardian being present at the time of the dental visit facilitates the provider obtaining written informed consent. Dentists must comply with TSBDE Rule 22 TAC §108.2, “Fair Dealing.”
There are a few other parts of section 3.2.8 we need to talk through:
- The dental provider must maintain written informed consent signed by the patient, or a parent or legal guardian of the patient if the patient is a minor, or a legal guardian of the patient if the patient has been adjudicated incompetent to manage the patient’s personal affairs.
- This means you must obtain informed consent from the person who has the authority to give consent. While this is most often Mom or Dad it may not be; don’t assume, ask every caregiver if they have the authority to give consent on behalf of the patient. This includes Mom and Dad, grandparents, adult siblings (age 18 or older), stepparents, foster parents, and anyone/everyone else who purports to represent your patient.
- THSteps providers must obtain legally effective, written informed consent before providing THSteps dental checkups and treatment services. Such consent is required for all oral evaluations; dental diagnostic, preventative, and therapeutic services; and treatment plans.
- This means you must obtain informed consent from the person who has the authority to give consent for a simple exam and x-rays. Many dental offices use a general consent, which allows the dentist to perform basic services, such as an exam and x-rays. Based on what I have seen through Medicaid enforcement actions this and all consents should be obtained the day of the procedure. For non-Medicaid patients I recommend updating this at least annually.
- Next, “the written informed consent” … “should disclose risks or hazards that could influence a reasonable person in making a decision to give or withhold consent.”
- In my experience, the use of a consent form with a checklist of procedures without a procedure by procedure disclosure of the risks or hazards does not meet the threshold of informed consent under TSBDE Rule 108.7 – Standard of Care.
What to do?
- Review your consent forms. Do you have informed consent forms for each procedure including exams, x-rays and each other procedure you provide?
- Review your consent process. When is consent obtained? How are changes in treatment documented and when is updated consent obtained?
- Do you and your staff know who can and who cannot provide consent? What is your office procedure for ensuring informed consent is obtained with the person legally authorized to provide it? What is the office procedure for obtaining consent from a person authorized to give consent when that person is not at the dental appointment (e.g. they are hospitalized or incarcerated)?
- How is consent documented in your progress notes? Do your notes describe the consent process, the discussion with your patients and their caregivers?
- Identify the gaps and opportunities in your practice to make sure you have this ‘informed consent’ thing down pat. Malpractice claims, state board complaints, and Medicaid recoupments are lost solely because of improper informed consent. You cannot afford to mess this up.
I’m here if you have any questions. This is not an easy topic and there are many variables you and your staff members need to be aware of and respond to. Step up and make it happen. You can do it!
- Tink
About the Author
A former Law Enforcement Officer/ Dental Board investigator, Duane Tinker is the CEO of Dental Compliance Specialists. Mr. Tinker provides compliance consulting, auditing and training services for dentists and Dental Service Organizations on compliance risks including OSHA, HIPAA, Dental Board rules/ regulations, state radiology rules, DEA and state drug regulations, and Medicaid.
Dental Compliance Specialists helps make dental offices safer for patients, dentists and their employees. We help our clients develop and maintain their compliance programs including OSHA/Infection Control, HIPAA, DEA regulations and prescribing practices, Radiation Safety, OIG/Medicaid Compliance, Record Auditing, and more by providing actionable systems, easy-to-use tools, robust training, and accountability. Most of our clients have never been in trouble and want to keep it that way. Sometimes, though, dentists call when they are in trouble. In either case, we are there to make a meaningful difference. If you need help call us at 817-755-0035.