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Dentists During Coronavirus: Weighing the Risks of Closing vs Staying Open

The coronavirus pandemic stunned the dental community and the entire country. In just a few days, it went from some patients canceling because they were concerned about safety to a recommended shut-down of dental services except for emergency dental care.

That’s left dentists weighing the risks of closing vs staying open.“Dentistry is a very resilient industry, and it’s going to be fine over the long term,” said Brian Colao, Director of Dykema’s DSO Industry Group and a nationally-known expert on dental industry legal proceedings, regulatory compliance, and mergers and acquisitions.

Weighing the Legal Risk for Dental Practices

He said the first question his clients ask him is what should they do? But the first question should be: what can you legally do?

“Obviously, if you’re just not legally allowed to do it, then you just can’t do it,” said Brian Colao.

As of March 24, there were 12 states that mandated dentists cease all dental treatment except for emergencies, and the American Dental Association recommended dentists in every state postpone non-urgent dental care.

The rules for what’s legal for dental practices can change depending on where you live. The state of Pennsylvania mandated that any dental team member performing emergency dental services had to follow stringent infection prevention requirements including donning N95 masks, goggles or face-shields, disposable gowns and gloves. They also had to have negative pressure isolation rooms with HEPA filtration systems in order to stay open.

“You’ve got to do some soul-searching and say am I equipped from an infection control standpoint to handle everything up to and including if somebody walks into my practice and they have COVID-19, am I able to handle that?” said Colao.

“If the answer is no, then unfortunately you may want to close even if you are legally allowed to be open. But if the answer is yes, then you can stay open for as much dentistry as you’re allowed to perform under the local rules and regulations that apply to you.”

Can a Patient Sue the Dentist?

In an interview taped with Patient Prism CEO Amol Nirgudkar, Brian Colao weighed on in another risk: can a patient who contracts COVID-19 sue the dentist?

“I don’t think anybody will sue you because you kept your practice open for business as long as you took all the universal precautions and did everything you’re supposed to do. The way you can get into trouble is if there’s a cluster of cases that originated in your office and you didn’t observe the uniform protocols that OSHA and the ADA and the CDC have put together. If you’re negligent in disinfecting your office, then there could be some liability there,” explained Colao.

Protocol if a Dental Patient Tests Positive for COVID-19

If the dentist learns that a patient seen in his or her office tested positive for COVID-19, then the dentist needs to notify the board of health, tell the staff, and tell any patients who may have been exposed, said Colao.

Risks Involved with Dental Staff Layoffs

A lot of dental practices, dental groups, and DSOs are evaluating their options for keeping paid staff members versus having unwanted layoffs. At the time of this video interview, Congress had not yet passed the stimulus bill.

It had passed the Families First Coronavirus Response Act, though, which goes into effect April 2. It provides paid sick leave, free COVID-19 testing, and expanded unemployment benefits. It requires employers with fewer than 500 employees to provide two weeks’ worth of paid sick leave if employees are unable to work because they’re subject to quarantine or isolation, are experiencing COVID-19 symptoms, are caring for someone who is in quarantine, and/or have children whose schools have closed.

Employers will receive tax credits to offset the costs of providing the paid leave.

It also gives up to three months of paid family and medical leave, equivalent to no less than two-thirds of the person’s pay.

Employees who are terminated before April 2 will not be eligible for the benefits in the Families First Act.

Brian Colao reminds dentists that they are going to need their employees when the practice opens back up. If the employees were laid off, then they are free to go somewhere else.

Impact on Mergers & Acquisitions

The dental market for mergers and acquisitions was very strong up until the coronavirus struck. No one knows yet how the economic downturn will impact the market for the rest of the year.

“Everyone knew a recession of some sort was going to hit. I never would have guessed it would have been a virus that precipitated it,” said Brian Colao. “I’ve always said, pick the right partner. After this, I think that will be even more of a consideration.”

Additional Information

For more information on the legal considerations involved with COVID-19 and the dental industry, visit www.DykemaDSO.com.  The Dykema team has a list of resources and articles designed to help dentists and dental group leaders through this difficult time.

For more interviews on the impact of COVID-19 and to download guides, please visit www.PatientPrism.com/Guides.

About this Industry Leader:

Brian Colao - Profile Pic

Brian Colao

Director of Dykema's DSO Group

Brian is widely regarded as one of the foremost authorities in the United States on the corporate practice of dentistry. He specializes in the representation of DSOs nationwide in the following areas:

  • Creating regulatory compliant business models and conducting ongoing compliance on a broad range of issues applicable to the industry
  • Defending DSOs in all manner of litigation and regulatory actions including State Dental Board Investigations and Complaints, State Attorney General Investigations and Complaints, Federal Investigations and Complaints, and private legal proceedings involving affiliated doctors
  • Assisting Private Equity Investors in buying, selling or investing in Dental Service Organizations

In recent years Brian has successfully resolved on behalf of his clients several significant civil and criminal Medicaid fraud investigations and state dental board actions alleging the corporate practice of dentistry, fee splitting and related violations, and he is the "go-to" person in the industry for all manner of regulatory issues. Brian has also handled, as lead regulatory counsel, some of the most significant transactions in the industry on behalf of buyers, sellers, lenders or potential investors. In recent years Brian has handled over 100 significant dental transactions representing in excess of $6 billion of total value. Brian also assists lenders in conducting due diligence prior to extending credit to Dental Service Organizations.

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