Thursday, July 30, 2009
FTC Delays "Red Flags Rule"
The FTC has delayed enforcement of new requirements concerning identity theft protection, the so-called Red Flags Rules, until November 1, 2009. The Rules, imposed by the Fair and Accurate Credit Transactions Act of 2003, require certain businesses and organization to develop, implement and monitor identity theft prevention programs. The Rules, as currently stated, include dental and healthcare providers who meet certain criteria, discussed in a previous posting here and explained in detail in the FAQ section at the FTC website.
Monday, July 27, 2009
Shapes and Forms
Whether taking a lump of clay and a potter's wheel to create a useful or decorative object that didn't exist before or some wire and dental material and fashioning a bridge that will restore function for a patient, creating a new "form" from raw material takes training, skill and talent. Creating these objects is not that different than taking a blank piece of paper (or blank computer screen) and using words to create a form intended for repeated use.
However, while "form follows function" is a philosophical premise in the worlds of art and architecture, it is more important for the dental professional that the intended, and only the intended, function "follows" the written form. Unintended consequences of having a patient, vendor, lessee or employee use or sign a form that is poorly constructed can include costly and lengthy litigation. It is always important to review, when creating or updating a form:
-What's the purpose of the form? Has the purpose changed in any way since the form was first created? Could the purpose be served by amending an existing form and combining the two?
-Are there any rules, regulations or laws with which the form should or must comply? If so, does it?
-What happens to the form after it is completed? How is it stored? Is it necessary, under current privacy regulations, to destroy the form at any time?
-Are portions of the form outdated but other portions still used so that the forms can be "used up" without being wasted? Is the outdated or disused portion of the form redacted in any way?
-Is the form used because "that's how we've always done it" and is there a better way to fulfill the purpose once served by the form?
This type of analysis is always important when creating a document that will become a part of a patient's dental records or other records kept in the regular course of business and therefore subject to production and review in any litigation.
However, while "form follows function" is a philosophical premise in the worlds of art and architecture, it is more important for the dental professional that the intended, and only the intended, function "follows" the written form. Unintended consequences of having a patient, vendor, lessee or employee use or sign a form that is poorly constructed can include costly and lengthy litigation. It is always important to review, when creating or updating a form:
-What's the purpose of the form? Has the purpose changed in any way since the form was first created? Could the purpose be served by amending an existing form and combining the two?
-Are there any rules, regulations or laws with which the form should or must comply? If so, does it?
-What happens to the form after it is completed? How is it stored? Is it necessary, under current privacy regulations, to destroy the form at any time?
-Are portions of the form outdated but other portions still used so that the forms can be "used up" without being wasted? Is the outdated or disused portion of the form redacted in any way?
-Is the form used because "that's how we've always done it" and is there a better way to fulfill the purpose once served by the form?
This type of analysis is always important when creating a document that will become a part of a patient's dental records or other records kept in the regular course of business and therefore subject to production and review in any litigation.
Saturday, July 11, 2009
Lightning and Lightning Bugs
Mark Twain said that the difference between using the correct word and almost the correct word is the difference between lightning bugs and lightning. Using the correct language is important in all communication but can be particularly important to the dental professional.
One of the common errors I see in contracts, agreements, or waiver/release forms drafted by non-lawyers concerns the words: "will" and "shall". If your intent is to make an action or response mandatory or required then the only correct word to use is "shall", e.g., In the event of a default under the terms of this payment plan, patient agrees that P.C. shall have an immediate right to accelerate all payments due... Court's have long held that in contract or statute interpretation, shall means mandatory or required. Will may not.
Sloppy or inaccurate writing in contracts, agreements, forms and policy manuals has led to a great deal of litigation. The best advice is always to have an attorney review such documents and avoid being struck by lightning.
One of the common errors I see in contracts, agreements, or waiver/release forms drafted by non-lawyers concerns the words: "will" and "shall". If your intent is to make an action or response mandatory or required then the only correct word to use is "shall", e.g., In the event of a default under the terms of this payment plan, patient agrees that P.C. shall have an immediate right to accelerate all payments due... Court's have long held that in contract or statute interpretation, shall means mandatory or required. Will may not.
Sloppy or inaccurate writing in contracts, agreements, forms and policy manuals has led to a great deal of litigation. The best advice is always to have an attorney review such documents and avoid being struck by lightning.
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