Monday, February 01, 2010
By Dan Schulte, J.D.
MDA Legal Counsel
From the February 2010 issue of the Journal
Question: A local dental laboratory has offered to hire me to examine patients for dentures. The lab would hire me as either an employee or an independent contractor (whichever I prefer). The plan is for me to perform an exam and write a prescription for a denture, which I would give to the lab. The lab would do everything else, including billing, advertising and other administrative tasks, fabricating the denture, delivering and fitting it for the patient. Before I commit I would like to know if this is a legal arrangement. Is it?
Answer: For several reasons, this is not a legal arrangement. First, the dental exams that are necessary in connection with a patient obtaining dentures for the first time or a replacement set are certainly within the scope of the practice of dentistry. This means that only a licensed dentist may provide these services. In addition, a licensed dentist may provide these services only in his or her individual capacity or through a professional corporation or professional limited liability company. I assume that the dental laboratory is not owed by licensed dentists. Therefore, it cannot be a professional corporation or professional limited liability company.
It does not matter whether the dental laboratory is hiring you as an employee or independent contractor. In either case, you may not provide services within the scope of the practice of dentistry through a non-professional corporation or non-professional limited liability company.
Second, Section 16641 of Michigan’s Public Health Code prohibits a dentist from using the services of a dental laboratory without furnishing a written work authorization to the dental laboratory with a copy to the patient. The specific contents required to be in this work authorization are listed in Section 16642. They include a detailed description with diagrams if necessary, specifications of the materials to be used, and other information not normally included on a prescription for a drug or “off the shelf” medical device/equipment. Therefore, simply writing a “prescription” for dentures and providing it to only the lab will be insufficient.
Third, Section 16642(3) prohibits a dental laboratory from having a denture in its possession without also having in its possession a written work authorization for that specific denture. Section 16642(2) requires the dental laboratory to return the completed denture to the dentist or dental office that provided the written work authorization. These laws prohibit a dental laboratory from delivering the denture to the patient, assisting in fitting the denture, or engaging in any activities other than making the denture.
Finally, Section 16643 of Michigan’s Public Health Code prohibits a dental laboratory from advertising, soliciting, representing or holding itself out to the public that it will sell, supply, furnish, etc., a denture. Therefore, the advertising activities you describe are illegal.
As you can see, this is not a legal arrangement. You must treat, examine, etc., your denture patients on your own or through a professional corporation or professional limited liability company. The proper role for the dental laboratory is the constructing, repairing, altering, etc., of dentures pursuant to a proper work authorization issued by a licensed dentist. The delivery of the denture and any necessary alterations to the denture to insure a proper fit must be performed by the dentist or by the lab pursuant to a written work authorization issued by a dentist to the lab.