The California attorney general reached a settlement in May with Aspen Dental that shined a light on private equity’s growing role in health care and its interference with dentists’ autonomy, as well as the regulatory and enforcement focus on this issue.
Private equity-owned Aspen Dental was ordered to pay over $2 million in penalties and $300,000 in patient restitution on the attorney general’s claims that the DSO exceeded its administrative role by “interfering with and unlawfully directing the practice, ownership, and management of dentistry in California.” Numerous court orders compel Aspen Dental to refrain from conducting specific activities, such as owning a practice property, interfering with patient care decisions or replacing a practice owner with a dentist of its choosing.
But the settlement also addresses the claim that Aspen Dental engaged in false and misleading advertising, signaling that AG will enforce existing rules strictly with a focus on accurate, literal disclosure and transparency.
“Bottom line: Dentists are responsible for the content of their advertising and cannot rely on compliance by third parties they hire to provide marketing or advertising,” says Teresa Pichay, CDA’s senior regulatory compliance analyst.
State and federal laws impact dental advertising
The California Dental Practice Act, CDA Code of Ethics, HIPAA and federal communication laws all impact dental practices’ marketing and advertising in three key areas: truth in advertising, referral compensation and information privacy. The Aspen Dental settlement most directly references the Dental Practice Act’s and FTC’s truth-in-advertising rules around endorsements, fee advertising and promotions.
The following is a summary of those requirements, but CDA encourages members to sign in to review Dental Practice Marketing and Advertising 101 for definitions, details and a Q-and-A on what these laws and code say about required accuracy, disclosure and transparency.
Truth in advertising: What the Dental Practice Act says
Any communication—printed, electronic (website, email, social media), radio or television— that solicits, describes or promotes a dentist’s licensed activities fits the definition of marketing and advertising under the California Dental Practice Act. The act establishes rules for advertising fees and discounts, dentures, referral services and group advertising. In general, the act prohibits:
- The use of false, misleading or deceptive statements, images or claims.
- Advertising a guarantee of any dental service.
- Compensation (including thank-you gifts) and inducements for patient referrals.
“Using an image of a model without clearly and prominently stating that the image is of a model, rather than a patient, would constitute a false, fraudulent or misleading claim,” Pichay says.
Similarly, a dentist cannot claim they “accept all insurance” unless the statement is literally true or the marketing or advertising piece contains the appropriate disclosure. Any disclosure must be clear, prominent and in readable type.
Claims about character—unrelated to advertised services—or superiority are also considered misleading or deceptive. A dentist who claims they offer superior skills or services in, for example, the Inland Empire or to other dentists is engaging in false or misleading advertising unless the dentist’s claims can be substantiated with objective scientific evidence. Pichay says dentists are unlikely to be able to produce that evidence.
Actual and specific: A special focus on pricing and promotions
The AG’s position on pricing in advertising is that practices should not be using ranges or qualifiers like “as low as” or “starting at.” The advertisement must reflect actual, specific pricing, and any “free” or discounted offers need to clearly spell out all material conditions.
For example, if a service is free only with some other service, that condition needs to be unmistakably clear.
“Advertising a free X-ray means that a patient could come in and just get a free X-ray,” Pichay says. If the free X-ray is only available with a $159 teeth cleaning, the advertisement needs to prominently state that. If advertising fees, the fee for each product or service must be clearly identifiable.
These requirements make it clear that the attorney general looks at advertising statements and expects them to be completely true in a completely literal sense, with no room for inflated or misleading claims.
Case highlights gap between dentist’s marketing promise and clinical reality
The Dentists Insurance Company, a California dental practice accepted a patient’s settlement offer for damages that included a claim alleging that the practice engaged in misleading marketing campaigns.
Among other things, the complaint alleged the practice advertised that they could provide patients with an “all-on four” implant restorative plan with delivery in a single visit but instead provided “unreliable” plastic snap-ons for nearly the same cost. Additional claims alleged that the actual treatment delivered was a “patchwork of outsourced procedures” provided to patients who were enticed to the office by the “all on four” promises thereby constituting a gap between marketing promise and clinical reality.
The patient also questioned a handwritten $2,400 bill that lacked important details about applied payments, cost breakdowns, procedure coding and specific dates that the procedures were performed raising questions about office’s protocols for clear, documented cost breakdowns.
TDIC experts determined that the dentist’s clinical treatment met the standard of care. However, because the advertisement representations did not match the actual treatment delivered to the patient, the dentist chose to provide a full refund to the patient. Documentation in the patient record indicated that that treatment plan had not been updated when treatment changed, creating the appearance that the office unilaterally made the change but charged the same fee.
‘Dentists need to have real oversight over their marketing’
Pichay stresses that the Aspen settlement reinforces that dentists need to have real oversight over their marketing, whether they own a practice or work in a DSO and hire out their marketing. “While the decision against Aspen Dental does not indicate the AG will seek discipline or consequences for individual dentists, it is a conceivable next step.”
Learn more about California’s settlement with Aspen Dental and the requirements applicable to dentist advertisements statewide. Sign in to review CDA’s resource on dental marketing and advertising with summaries of the CDA Code of Ethics and state and federal laws that impact advertising.