SB16-009: What Your Practice Needs to Know

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The Colorado Dental Board recently emailed dental licensees regarding SB16-009, a 2016 bill that made a technical fix to a longstanding state law on fee splitting by dentists. Information was provided to members about SB16-009 in the summer 2016 Journal of the Colorado Dental Association. A few additional questions have been generated by members, however, following the dental board’s communication. The CDA wants to make sure dentists have the most up-to-date information on this new law.

What SB16-009 DID NOT change:

Dental fee splitting laws aren’t new. Fee splitting laws have been on the books for more than 30 years—primarily to address situations of patient referrals and kickbacks. The dental fee splitting law currently lives at CRS 12-35-129(1)(v), though the section numbering has changed a bit over the years. The fee splitting law has a longstanding exemption that allows dentists to pay marketing consultants, but other types of consulting services technically weren’t addressed in the law. In addition to state laws on fee splitting, there are stringent federal laws regarding patient referrals and illegal kickbacks that continue and have not changed. No changes have been made to laws governing ownership of Colorado dental practices.

What SB16-009 DID change:

SB16-009 adds a straightforward, second technical exemption to the existing law in CRS 12-35-129(1)(v) to clearly allow payments for business consulting and practice management services. There have been some recent court cases that potentially would have restricted business consulting and practice management services based on CRS 12-35-129(1)(v). Comfort Dental drafted SB16-009 in response to these legal cases. The CDA worked with Comfort Dental to ensure the changes made to the law were written in a way that enhances current practice for all dentists and patients and to ensure any payments for services would protect and preserve the dentist’s independent professional judgment. With these amendments, the CDA supported Comfort Dental in SB16-009. All types of dental practices use various business consulting and practice management services, which provide great benefit to practices so long as there is not interference with a dentist’s independent professional judgment. In most cases, these changes will add a bit of flexibility for practices, rather than restricting existing practices.

Text of actual changes to the law (for reference):

§ 12-35-129. Grounds for disciplinary action

(1) The board may take disciplinary action against an applicant or licensee in accordance with section 12-35-129.1 for any of the following causes:

(v) Sharing any professional fees with anyone except those with whom the dentist or dental hygienist is lawfully associated in the practice of dentistry or dental hygiene; except that­:

(I) a licensed dentist or dental hygienist may pay an independent advertising or marketing agent compensation for advertising or marketing services rendered by the agent for the benefit of the licensed dentist or dental hygienist, including compensation that is based on the results or performance of the services on a per-patient basis; and

(II) nothing in this section prohibits a dentist or dental hygienist practice owned or operated by a proprietor authorized under section 12-35-116.5 from contracting with any person or entity for business management services or paying a royalty in accordance with a franchise agreement if the terms of the contract or franchise agreement do not affect the exercise of the independent professional judgment of the dentist or dental hygienist.