Pierce & Mandell, P.C.

11 Beacon Street, Suite 800
Boston, Massachusetts 02108-3002

Phone: (617) 720-2444
Fax: (617) 720-3693

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Dental Law - Dentists Participating In MassHealth Take Note! - Boston, MA Lawyers

Wednesday, March 13, 2013
By: Kate L. Auerbach, Esq.

All dental providers that participate in MassHealth must understand that while they may code for the services they perform using the federally mandated American Dental Association’s (“ADA”) Code on Dental Procedures (the “Code”), MassHealth will look to 130 CMR 420.000 and 450.000 which contain the specific state regulations governing dental services. All dental providers participating in MassHealth must comply with MassHealth regulations, including but not limited to 130 CMR 420.000 and 450.000.

It is the dental provider’s responsibility to be attentive of any and all Massachusetts dental regulations, including MassHealth Transmittal Letters that will form the basis for what is or is not reimbursable.  Massachusetts State Auditor Suzanne Bump has been continually performing audits of the MassHealth dental system since 2010, and has put pressure on MassHealth to be a better job of screening claims for payments from dental providers.  Most recently, an audit focused on 19,274 claims of “detailed oral screenings.”  Based on the results of the audit, it seems there is confusion with the code for a “detailed oral screening” because many dental providers use D0160, which in the ADA’s description of services states is a “detailed and extensive problem focused evaluation [which] entails extensive diagnostic and cognitive modalities based on the findings of a comprehensive oral evaluation.”  The ADA guideline, found in the Code, contains no requirements that a MassHealth patient must be undergoing radiation treatment, chemotherapy or organ transplant in order for the provider to be reimbursed for rendering an extensive oral evaluation.  However, 130 CMR 420.456(B)(1) says it will pay for oral screenings for members that are “undergoing radiation treatment or chemotherapy,” and the State Auditor has declared that MassHealth wrongly reimbursed providers who were treating individuals who were not undergoing radiation or chemotherapy.

Massachusetts State Auditor Suzanne Bump’s office has sought refunds from dental providers to recover monies paid as a result of this discrepancy, requiring dental providers to defend themselves.  If dental professionals do not pay close attention to the specific MassHealth rules and regulations, then they may be subject to audits, claims for refunds, or even worse, penalties or civil and criminal prosecution and exclusion from the program.   MassHealth dental providers should never assume that they can perform a service simply because it meets their view of the standard of care or good clinical practice.  Rather, the services must fall into an acceptable Massachusetts policy as to what is reimbursable.  

Please contact the dental law professionals at Pierce & Mandell for further information.

Owning and Leasing Medical and Dental Office Space: The Basics

Thursday, January 31, 2013

• Owning a Medical Office or Building

When purchasing a commercial space or building for a medical or dental practice, it is always better to own the real estate through a separate legal entity both for tax and liability purposes.  When purchasing real estate, bank counsel may be helpful, but he/she does not represent the interests of either the buyer or seller.  Buying or seller a building or office condominium involves deed registration, title searches, zoning and permitting, thus it is important to hire a lawyer who specializes in real estate conveyancing.  

• Leasing a Medical Office

When leasing commercial medical space, you first must fully and accurately identify the premises. It is important to be clear on the dimensions and/or square footage of the leased premises and how it is calculated. It is helpful to determine if the square footage referenced is rentable (which includes portions of common areas) or useable (within the four walls of the premises).

• Price

When leasing a commercial dental space, there are several common lease rates, including triple net lease and gross lease.  In a triple net lease the tenant typically pays a lower base rent to the landlord and then the tenant pays all additional expenses separately.  These additional expenses may include: electricity, water, gas, janitorial services, maintenance, property taxes and property insurance.  In a gross lease rate all operating expenses are included in the monthly rental payments.  

• Lease Term

The lease term is the period during which the tenant has exclusive possession and the obligation to pay rent. A short-term lease may be beneficial for the practice owner looking for flexibility – perhaps to move to a larger space – while a long-term lease can guarantee that the tenant will be able to keep a certain space at a known rent for an extended period.

• Build-Out/Tenant Improvement

Leasing a new space that needs to be built out may require you to seek allowances to finish the space to your specifications. If leasing an existing space, there may be modifications needed, which can be paid for by both the landlord and tenant.  Some landlords will permit the tenant to engage its own architect and contractor, subject to the landlord's approval, other landlords will require the tenant to use providers selected by them.

• Maintenance

There are common area maintenance charges that may be passed on to the tenant for the landlord’s expenses for utilities, taxes and other costs related to the building or center where the premises are located.   The tenant may be required to pay a certain percentage share of the costs for maintaining, operating, repairing and replacing components of the building. Typically, the proportionate share is based on the tenant’s square footage divided by all leasable square footage for the building.

• Personal Guaranty

When entering into a commercial lease, a landlord may require a personal guarantee from the practice owners, even if they own and operate the practice through a corporation or LLC, and may refuse to rent the space without one.  The guarantors stand behind the tenant’s performance and would be personally liable for the lease and other payments if the tenant fails to do so for any reason.

• Assignment & Subletting

Having the right to assign the lease or sublet a portion or all of the office is very important when selling a practice or relocating an office.  Some leases define any change in ownership of the tenant, even a partial buy-in by another practioner, as an assignment or subletting. Therefore, the admission of new partners or shareholders, or sale of the practice could present problems if the tenant is not allowed to assign or sublet.

Right of First Refusal

A right of first refusal could allow a tenant to be notified and have the first opportunity to either purchase the space or lease additional space before the owner can sell or lease it to another person.

• Insurance

The amounts of insurance coverage are dependent on the financial strength of the parties and the nature of the tenant's business. Often the lease will require the tenant to have the landlord named as an additional insured on the tenant's liability insurance policy.

• Compliance with the Law

Most leases provide that the tenant will "comply with all laws.” There are three areas of the law are of particular concern: ADA compliance, local building code compliance, and environmental law compliance.

For information or assistance, contact Pierce and Mandell, P.C.

The above practice points should be considered by medical and dental professionals when buying or selling a practice. This list does not constitute legal advice and is not conclusive. We recommend that medical and dental practices and professionals obtain assistance from professionals (attorneys and CPAs) to ensure that agreements are complete and serve to adequately protect your interests.

Pierce & Mandell to Participate in Yankee Dental Congress 2013

Thursday, January 17, 2013

For the fourth consecutive year, Pierce & Mandell, P.C. is proud to be part of the Yankee Dental Congress, to be held January 30th through February 3rd at the Boston Convention & Exhibition Center.  

Yankee Dental Congress is a trade show and convention that draws thousands of dental professionals each year.  Pierce & Mandell attorneys William M. Mandell, Kate L. Auerbach and Rebecca Merrill will be available at Booth 818 to meet with dental professionals interested in legal advice on all dental law and ethics, including dental practice transitions and sales, associate buy-ins, leases, employment and service agreements, and staff employment issues.

Click here for more information on Yankee Dental Congress.

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