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Hiring or Becoming an Associate

June 19, 2019 2508

Introduction

Other than asking your peers, many sources exist for finding the ideal candidate to expand your practice. In the case of a component society, viable options include the state dental association, a college career placement service, dental supply companies, dental industry publications, the internet and classified advertisements.

Associate dentists provide valuable additions to dental practices. Consider the following strategies before hiring or becoming an associate.

The general information outlined below is not intended to take the place of legal advice and may not be applicable to every situation.

Are you ready to expand your practice or are you looking for an associate position? Consider the following strategies before hiring or becoming an associate:

Hiring an Associate

Choosing a professional associate may be one of the most important decisions you will make. Hiring an associate can allow your practice to offer extended hours, provide you with clinical support and allow for the sharing of ideas on complicated cases. Your choice, however, will affect your staff, the well-being of your practice and the welfare of your patients. Take your time and research prior to making an important hiring decision.

Becoming an Associate

If you are looking to become an associate, first determine what practice area you are interested in developing. Find a practice that suits your goals, standards and philosophies. Determine if you and the practice owner have similar approaches to treatment, chairside manner and addressing staff issues before deciding to become an associate of his or her practice. Choose an office that displays ethics and philosophies similar to your own.

Be cognizant of the production requirements set at an office. Educate yourself on the practice owner’s plans regarding the segment of the practice you will treat (i.e., regular patients or “coupon patients”). Ensure that scheduling will allow you sufficient time to treat within the standard of care. Pushing yourself to compete with more experienced professionals or to meet unrealistic production quotas may cause your quality of dentistry to decrease, thereby increasing your liability exposure. Even if you practice as a hygienist, you will still be held to the standard of care of a dentist. Moreover, the practice owner’s professional liability insurance does not cover other dentists, even those who are only practicing hygiene.

Interviewing

Scheduling working interviews may be beneficial in the decision-making process. Working interviews allow candidates to practice in the clinical setting and provide them the opportunity to observe how the practice owner conducts his/her office.

For practice owners, working interviews may be the best way to observe a candidate’s technique and will demonstrate how he/she interacts with patients and staff.

If you are the potential associate, request to review some of the patient records. Look for any pattern of practice issues and signs of supervised neglect in patient charts. This helps to determine whether you will be comfortable joining the practice. Be aware that joining a practice whose services are below the standard of care places you at risk of professional malpractice, as you may be held liable for the negligence of others with whom you associate. Also ask for proof that the practice owner has professional liability insurance. If he or she practices without professional liability insurance, seriously consider passing up the position rather than being a lightning rod for malpractice cases. In addition, check your state dental board for any dental board actions or complaints.

Practice owners: Do not be offended by a candidate’s request to review patient records. This demonstrates the candidate’s attention to detail and professionalism. Dental practices should have members of their workforce, as defined by HIPAA (employees and temporary employees, students and volunteers) sign a confidentiality agreement at the time of employment after they have received training. 

The potential employer and candidate should have similar approaches to treatment, philosophies and patient communication skills. Effective resolution of future patient and business issues may rely upon your like values.

Legal Relationships

When a dentist associates with an established dental practice, the parties have several ways to structure the legal relationship. Which legal relationship is selected depends on the dentists’ expectations of the nature and duration of the working relationship. Regardless of which arrangement you elect, finalize the terms in writing with the aid of an attorney.

Employment

Many dentists associating with an established dental practice start as employees. Associate dentists must abide by the practice owner’s policies and philosophies, qualify for employer benefits and typically have no financial or managerial responsibilities. An employee includes anyone under the direction and control of an employer as defined by statute, regardless of whether the employment relationship is based on an oral or a written appointment, contract or apprenticeship. The employer provides workers’ compensation coverage as required by law. The employer withholds and pays payroll taxes required by law.

An employee typically:

  • Utilizes the office’s materials, tools and equipment.
  • Abides by office policies, rules and safety regulations.
  • Produces according to the practice owner’s plans and requests.
  • Works in tandem with the practice owner, shares patients and philosophies.
  • Receives benefits including unemployment insurance, mandatory paid sick leave and workers’ compensation.
  • Works with office staff, not in a managerial position.
  • Gets paid per time in the office and possibly a production commission on top of salary.

Independent Contracting

Independent contractors are not employees. They enter into contracts to provide specified goods or services but retain the right to control the way in which the goods or services are provided. In the context of professional services, an independent contractor offers professional services to the public or to other professionals and is not bound to work indefinitely and exclusively for one practice. They are paid based on their production (sales, commissions, agreed upon amounts or other criteria) or on a flat rate per service. The employer is not responsible for withholding taxes for independent contractors. Independent contractors are not subject to control by the owner; they can come and go as they please. Typically, independent contractors:

  • Furnish their own tools and equipment.
  • Act as their own boss by setting their own work schedule.
  • Are compensated on production, not on time spent in the office.
  • Receive no employer benefits.
  • Enter into a contract requiring both parties to terminate the agreement when the relationship dissolves.
  • Are obligated to reimburse the practice owner for any losses (e.g., retreatment cases) and damages (e.g., property, equipment and instruments).
  • Pay their own lab bills and some overhead expenses.
  • Pay for their own professional liability insurance.
  • Make their own estimated tax payments on a quarterly basis.

It is important for dental offices to understand the impact of classifying an individual as an employee or an independent contractor. In an April 2018 decision, the California Supreme Court ruled that the long-standing common law right to control test did not apply in a wage and hour class action lawsuit. Instead, the Court adopted the ABC test to be applied when distinguishing between an employee and an independent contractor for purposes of California’s Wage Orders. Under the newly adopted ABC test, an individual is presumed to be an employee, unless the company can prove all of the following:

  1. That the worker is free from control and direction of the hiring entity in connection with the performance of the work, both under the contract for the performance of the work and in fact;
  2. That the worker performs work that is outside the usual course of the hiring entity’s business; and
  3. That the worker is customarily engaged in an independently established trade, occupation or business of the same nature as the work performed.

If the hiring entity fails to show that the individual worker satisfies each of the three criteria, the worker is treated as an employee, not an independent contractor.

Properly classifying a worker as an independent contractor may save money and benefits, such as pension, group health and workers’ compensation insurance costs, as well as social security and unemployment insurance taxes for the employer. Generally, for those workers classified as independent contractors, the employer only has to complete a Form 1099-MISC at the end of the tax year. Many associates prefer being an independent contractor so that they may avail themselves of the tax benefits of being a business owner. If you are considering working as an independent contractor, ask the practice owner for proof of workers’ compensation and premises liability coverage, in addition to ensuring that he or she has active professional liability insurance.

Before entering into an independent contractor relationship, obtain legal advice about structuring the relationship. Have someone who knows the law in this area prepare a contract that sets out the rights and obligations of the contracting parties.

Other Business Relationships

Dentists wishing to “try out” an association with one another will not want to enter into a long-term relationship right away. The usual course is for one dentist to work as an employee or independent contractor in the practice of another dentist while they build their joint practice and become comfortable with one another’s methods and practice styles. Often the terms of such a relationship are set out in a written employment contract, which may contain provisions dealing with when and under what circumstances a new dentist will be considered for a permanent relationship and an equity interest in the practice.

Put It in Writing

For the protection of both parties, develop a written agreement that spells out the essential terms that will govern your relationship. Many dentists with an established practice are reluctant to associate with another dentist without some assurance that the new dentist will not leave and take patients. In most states, dentists can enter into employment agreements, which contain a “covenant not to compete.” Such agreements, sometimes referred to as “restrictive covenants,” usually contain provisions restricting dentists from starting practices within a specified geographical area during the relationship and for a limited time after it ends. Some states prohibit such agreements and most others place limits on them. Consult an attorney familiar with employment law in your state to assist with such an agreement.

The contractual agreement should also cover duties, compensation, insurance and the nature of the relationship. If you intend to create an independent contractor relationship, say so and make sure that the terms of the relationship are consistent with independent contractor status. The agreement should spell out how the relationship can be terminated by the parties under various circumstances and what rights each party has when the relationship ends. If the parties contemplate that one dentist will have a future opportunity to acquire an ownership interest in an existing practice, the circumstances under which that will occur can be spelled out in the agreement.

Any contractual agreement may create certain responsibilities and duties that are not intended; therefore, to avoid financial and legal complications, consult with an attorney and/or a tax advisor who handle dental transactions when taking on or becoming an associate. All agreements documented in a written contract by an attorney will serve as a reference and may help to steer a situation away from legal conflict in the future.

CDA Practice Support offers a sample associate agreement template.

Patients and Their Records

Ownership of patient records and retreatment responsibility are often major sources of contention when an associate severs ties with a practice. At the beginning of a relationship, clearly establish in writing to whom the patient records belong and who is responsible for retreating patients when the associate leaves the practice. Consult with a professional practice attorney or with a dental practice sales specialist for assistance with the contract.

Liability Concerns

Vicarious liability is the legal responsibility that occurs when one party is held liable for the actions of another party. Practice owners have a vicarious liability and responsibility for the credentials, licensing and competency of any associate treating patients in the practice. Owners should be prepared to be included in lawsuits where allegations of negligence are aimed at an associate, even if the practice owner was not involved in the patient’s treatment. For this reason, it is best for owners to require their associate to obtain liability coverage with limits equal to or higher than their own. The owner and the associate should request to see a copy of one another’s certificates of insurance as well. Ideally, both parties should be insured by the same professional liability carrier to ensure continuity of claims handling.

Professional liability for hygiene

To get a foot in the door of a desirable practice, an associate may initially accept a hygiene schedule. The associate dentist hired as a hygienist will not be covered under the practice owner’s professional liability insurance. The associate must purchase his or her own professional liability insurance, as they will be responsible for maintaining the same standard of care as any licensed dentist.

Employment Practices Liability

As an employer, owners may wish to obtain Employment Practices Liability (EPL) insurance coverage. Discrimination, sexual harassment, hostile work environment and wrongful termination can effectively disrupt a practice and cost the practice money in defending litigation as well as paying verdicts or settlement amounts. EPL coverage will help protect the practice against claims regarding employee-related issues

Checklist

Owners and associates often learn in hindsight that a solid foundation was not established in the beginning. Prior to hiring or becoming an associate:

  • make sure the physical office space can accommodate another dentist.
  • ask your peers how their associate agreements have served them.
  • memorialize your agreement with a signed and dated written contract.
  • define terms of the agreement: compensation, classification status, job duties.
  • confirm insurance (professional liability, workers’ compensation, property, loss of income, disability).
  • discuss the termination of relationship (i.e., timing for notice of termination, also cover events such as death, disability, sale of practice, option to purchase and right of first refusal).
  • have an anti-solicitation clause.
  • have legal counsel review all agreements prior to execution.
  • ensure that your colleagues stay current on continuing education and have an active dental license.

In developing this resource, TDIC researched and talked to experts in the field of dentistry, law and insurance claims. However, the ideas and suggestions contained in this resource represent experience and opinions of TDIC. There are no guarantees that any particular idea or suggestion will work in every situation. The ideas and suggestions contained in this resource are not legal opinion and should not be relied on as a substitute for legal advice. For legal advice specific to your practice, you must consult an attorney

Lists are not exhaustive of issues to be addressed and suggestions may not be applicable to every situation.

This resource is updated and offered with permissions from TDIC