By Dan Schulte, J.D.
MDA Legal Counsel
From the June 2010 issue of the Journal
Question: I have decided to expand my practice by hiring a dentist and a hygienist. I am now planning the hiring process. I would like to know if "working interviews" are a good idea.
Answer: You should proceed with caution when conducting working interviews.
First, there should be a clear understanding between you and the interviewee that there will be no compensation paid for the dental/hygiene services rendered. As described in a previous "Dentistry and the Law" column (May 2005), expecting an interviewee to donate his/her services without compensation may be illegal. Michigan’s Wage and Fringe Benefits Act (MCL 408.471 et. seq.) requires that an employee be paid at least minimum wage. "Employee" is defined simply as an individual employed by an employer. "Employ" as defined by this statute means "to engage or permit to work." There should be a clear understanding, preferably in writing, where the interviewee agrees that he/she is not being employed by you and acknowledging that the interviewee waives any right to receive compensation.
Second, working interviews raise malpractice concerns. You should contact your malpractice insurance carrier and determine whether there is coverage available under your policy for services provided by someone as part of a working interview. Typically, malpractice policies cover only employees and others contracted to provide services on behalf of the practice. If this is the case with your malpractice policy there would be no coverage for services provided by a non-employed, non-contracted person performing a working interview.
Supervision requirements applicable to hygienist services should also raise malpractice concerns. Michigan Administrative Code Rule 338.11408 provides that the "removal of accretions and stains from the surfaces of the teeth and application of topical agents essential to complete prophylaxis" can only be performed by a registered dental hygienist and only when the patient is under the "assignment of a dentist." For the assignment of the patient to be proper a dentist must designate the patient as his/her patient of record and describe the procedure to be performed by the hygienist to the patient. If the hygienist injures the patient during the working interview, you would be liable along with the hygienist.
To be safe, you should document in writing with interviewees that they very likely will have no malpractice insurance applicable to the services they are providing during the interview, and request indemnification from such claims.
Forms are available below you might ask the interviewee and patients to sign.
- Form A: Addresses compensation and malpractice issues.
- Form B: Informs patients that the treatment is part of a working interview.
Third, you should inquire whether your workers’ compensation insurance policy will provide coverage to you should the interviewee be injured during the working interview. Workers’ compensation insurance is required to be carried by almost all Michigan employers. This insurance provides compensation to employees for work-related illness or injuries. Unless you have received contrary information from your workers’ compensation insurer, you should make it clear to interviewees that should they be injured as a result of providing services during a working interview, they very likely will not have coverage under your workers’ compensation policy, since they may not be deemed to be your "employee" for this purpose.
Finally, you should strongly consider informing your patient that the dentist or hygienist providing services is not your employee and that he or she is working in your practice as part of an interview. You might also state that although you have no reason to doubt the quality of their services, you are conducting the working interview to assure yourself that their services are of acceptable quality. Patients will likely not appreciate unknowingly being used to evaluate the quality of the services of a dentist or hygienist that you have not hired. See the facing page for a form that you might use to communicate this to the patient and obtain the patient’s permission.