Valid signatures are essential to several patient transactions such as health history completion and review, informed consent and financial agreements. Risk increases for a practice if a patient signature cannot be authenticated. It is critical a dental practice owner understand what makes an e-signature valid in order to select the most appropriate technology for the practice. This article discusses what makes an e-signature valid and types of e-signatures.
The U.S. Electronic Signatures in Global and National Commerce (ESIGN) Act and the Uniform Electronic Transactions Act (UETA) together establish the requirements for e-signature to be recognized as valid under U.S. law:
Each signer must have authority to sign. The electronic signature process should create and preserve evidence of the identity of each signer.
An example of demonstrating this intention is to offer opt-in/opt-out boxes during the process.
Each party must consent. Consent does not have to be all-or-nothing. A consumer can choose to conduct business electronically for one transaction but not for another.
The circumstances in which a dental practice needs a patient signature are considered “consumer transactions” and, as such, the practice must ensure the patient or patient’s legal representative:
One example of this is a signature generated after clicking through on a software program’s dialog box combined with some other identification process. Other examples include a digitized picture of a handwritten signature or a complex encrypted authentication system. The signature should be logically associated with the record being signed. Signature should be verifiable (verification through an audit trail is one way of doing it).
Electronic signature records are retained and are reproducible for reference by all parties or person entitled to retain the record.
Individual states and certain industries may set requirements over and above the ESIGN and UETA. UETA is codified in California Civil Code sections 1633.1-1633.17. Dentists contracted with one or more dental plans should verify respective plan requirements for e-signature, if any.
A digital signature is one type of e-signature. It should not be confused with a “digitized signature,” which is an image of just a signature on paper; the image cannot be authenticated. California law defines a digital signature as “an electronic identifier, created by computer, intended by the party using it to have the same force and effect as the use of a manual signature.”[i] Software that generates a digital signature can add a level of security and authentication through use of PINs, passwords or digital certificates.
The California Dental Practice Act requires every licensed health professional who performs a service on a patient in a dental office to identify themselves in the patient record by signing their name or an identification number and initials next to the service performed and to date the entries in the record.[ii] In order to comply with this legal requirement when using an electronic health record software and to ensure the record’s validity, a dental practice owner should:
Mandatory use of e-prescribing in California starts in 2022. E-prescribing software is widely available, but dentists who need to prescribe controlled substances should be aware that e-prescribing for controlled substances requires additional security mandated by U.S. Drug Enforcement Agency regulations. In addition to going through a third-party identity-proofing process, prescribers are required to use a two-factor authentication process to “sign” an e-prescription for controlled substances. The factors must be two of the following:
Only a prescriber is allowed to sign a prescription so prescribers may not give any of the factors to another individual.
[i] Government Code §16.5, http://leginfo.legislature.ca.gov/faces/codes_displayText.xhtml?lawCode=GOV&heading2=GENERAL%20PROVISIONS;
Civil Code §1633.2(h), https://leginfo.legislature.ca.gov/faces/codes_displayText.xhtml?lawCode=CIV&division=3.&title=2.5.&part=2.&chapter=&article=
[ii] Business & Professions Code §1683, http://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?lawCode=BPC§ionNum=1683.
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Teresa Pichay, CHPC
Regulatory Compliance Analyst
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