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WHAT ARE THE ETHICAL IMPLICATIONS OF USING SOCIAL COUPONS TO EXPAND MY PATIENT BASE?
PERSPECTIVES
ETHICAL
MOMENT
ETHICALMOMENT WHAT ARE THE ETHICAL IMPLICATIONS OF USING SOCIAL COUPONS TO EXPAND MY PATIENT BASE?
Q
The last few months have been a test of my ability to provide dental care to patients while maintaining a viable practice because of the stresses of the economic downturn. I have been considering whether I should use social coupons as a way to attract new patients. I called one of the social coupon companies to obtain more information about the process. As I understand it, I specify the treatment or service that I want to offer and the price point for the service and the company markets it for me. A representative explained that most people offer a service at a discount of at least 50 percent from the usual fee. The company keeps about 40 percent of the fees collected and sends the remainder to the service provider. I would receive my money up front, and if a patient does not show up, I still would be paid. This seems to be a good plan. I could boost my patient exposure and possibly retain some of these patients once they are in the door, increasing my overall patient base. My plan is to offer a coupon for a basic and often necessary service, such as a cleaning, radiographs or maybe tooth whitening, because these services are in high demand. However, I have concerns about offering tooth whitening or even a cleaning without an examination. I know other dentists do this, but I am not sure how they can without first assessing a patient’s dental health. I also wonder how my current patients might feel if people who were not my patients received the same care for less than my usual fee. How would my colleagues feel? Would it be appropriate to accept a fee from someone who did not show up for treatment? During what period would the coupon be valid? With so many questions, I am unsure how to proceed.
A
The use of social coupons for services is an increasingly important topic in dentistry and health care generally, and it is evolving quickly, raising numerous legal and ethical issues. Certain sections of the American Dental Association Principles of Ethics and Code of Professional Conduct1 (ADA Code) raise ethical issues that must be addressed when using this type of couponbased marketing. Thus, before marketing dental services by using social coupons, dentists need to put much thought and planning into their decision. In addition, local, state and federal laws might be applicable to this kind of advertising and fee arrangement. An arrangement with a company that provides social coupons might amount to fee splitting, especially if the company collects the fee being charged to the patient and keeps a percentage of it. This represents a type of kickback that might be illegal in some states. It also might be a violation of the federal “Stark Law”2 if a dentist treats patients who receive Medicaid or Medicare and does not offer them the same benefits as other patients. In addition, Advisory Opinion 4.E.1, Split Fees in Advertising and Marketing Services, directly addresses this type of payment arrangement: The prohibition against a dentist’s accepting or tendering rebates or split fees applies to business dealings between dentists and any third party, not just other dentists. Thus, a dentist who pays for advertising or marketing services by sharing a specified portion of the professional fees collected from prospective or actual patients with the vendor providing the advertising or marketing services is engaged in fee splitting. The prohibition against fee splitting is also applicable to the marketing of dental treatments or procedures via “social coupons” if the business arrangement between the dentist and the concern providing the marketing services for that treatment or those procedures allows the issuing company to collect the fee from the prospective patient, retain a defined percentage or portion of the revenue collected as payment for the coupon marketing service provided to the dentist and remit to the dentist the remainder of the amount collected.1
According to Advisory Opinion 4.E, Rebates and Split Fees, “[d]entists shall not accept or tender ‘rebates’ or ‘split fees.’ ”1 This
JADA 143(9)
http://jada.ada.org
Copyright © 2012 American Dental Association. All rights reserved.
September 2012 1035
PERSPECTIVES
ETHICAL
MOMENT
potential obstacle may be overcome if you enter into a different type of contractual arrangement with the social coupon company. For example, in the state of Oregon, one of the major social couponing companies recently proposed a payment arrangement with dentists in which all fees paid by the prospective patient would go directly to the dentist, who, in turn, would pay the company a set fee for promoting the coupon.3,4 Such an arrangement is unlikely to run afoul of concerns about fee splitting. Other important areas for you to consider include the unintended setting of fees and the potential for insurance fraud. Some insurance companies’ reimbursements are set on the basis of a provider’s average fee for a given procedure. Offering and performing a specific procedure at a much reduced fee might allow the insurance company to reduce its reimbursement to that dentist for that treatment. If some of the coupon-holding patients have dental insurance and you bill for your full fee instead of the amount paid by the patient with the coupon for the procedure, this could constitute insurance fraud. It also might amount to misrepresenting fees charged, in violation of Section 5.B, Representation of Fees, which states that “[d]entists shall not represent the fees being charged for providing care in a false or misleading manner.”1 Also, pursuant to Advisory Opinion 5.B.1, Waiver of Copayment, it is important to account for patients’ copayments when making claims to third-party payers. To be certain that any reduction in fees or elimination of copayments does not amount to fraud, you may wish to consult your private attorney regarding state and federal laws that might apply to the use of social coupons. Another potentially problematic issue is a coupon holder’s failure to redeem the coupon; in such a situation, you will have been paid for a service you did not render. Still another issue is whether the person purchasing and seeking to use the coupon actually needs the service at all. Advisory Opinion 5.B.6, Unnecessary Services, addresses this question directly: A dentist who recommends and performs unnecessary dental services or procedures is engaged in unethical conduct. The dentist’s ethical obligation in this matter applies regardless of the type of practice arrangement or contractual obligations in which he or she provides patient care.1
1036
JADA 143(9)
http://jada.ada.org
To avoid this problem, a dentist seeing a patient for the first time may need to perform services other than those for which a coupon was purchased. However, in such a situation, the coupon bearer may feel that he or she has been part of a bait-and-switch scheme. This might arise if a prospective patient makes an appointment for a tooth whitening treatment for which he or she purchased a coupon but then is told that an examination and radiography must be performed first. Although this is appropriate dental care, the patient must now pay for additional services over those that he or she purchased through the coupon. You can prevent this conflict by disclosing in the deal description that other procedures not covered by the social coupon may be necessary before the treatment covered by the coupon can be performed. Some people who purchase coupons may have a dental home but choose to purchase a needed procedure through a social coupon provider to obtain the service at a reduced fee. Such practices may encourage patients to abandon their dental home and shop around for the best deal for any needed treatment. This could hamper dentists’ professional role and impede continuity of care for patients. Conduct that raises this kind of risk arguably falls within the scope of Section 2, Nonmaleficence (“do no harm”).1 The perception that may be created when health care services are discounted is that the reduced fee obtained is as important as, or more important than, the quality and safety of care provided. This does a disservice to both patients and the profession overall. Social couponing is a prevalent marketing practice in today’s Internet-driven society and can be a valuable tool for dentists to use in marketing and building their practices. However, dentists are advised to proceed cautiously in using these services so that they can enjoy the rewards without compromising patient care and while maintaining dental practices free of ethical and legal concerns. ■ Richard Rosato, DMD, practices oral and maxillofacial surgery in Concord, N.H., and is a member of the American Dental Association Council on Ethics, Bylaws and Judicial Affairs.
September 2012
Copyright © 2012 American Dental Association. All rights reserved.
PERSPECTIVES
Ethical Moment is prepared by individual members of the American Dental Association Council on Ethics, Bylaws and Judicial Affairs (CEBJA), in cooperation with The Journal of the American Dental Association. Its purpose is to promote awareness of the American Dental Association Principles of Ethics and Code of Professional Conduct. Readers are invited to submit questions to CEBJA at 211 E. Chicago Ave., Chicago, Ill. 60611, e-mail “[email protected]”. The views expressed are those of the author and do not necessarily reflect the opinions of the American Dental Association Council on Ethics, Bylaws and Judicial Affairs or official policy of the ADA.
ETHICAL
MOMENT
Address reprint requests to the American Dental Association Council on Ethics, Bylaws and Judicial Affairs, 211 E. Chicago Ave., Chicago, Ill. 60611. 1. American Dental Association. American Dental Association principles of ethics and code of professional conduct, with official advisory opinions revised to April 2012. www.ada.org/sections/ about/pdfs/code_of_ethics_2012.pdf. Accessed July 26, 2012. 2. 42 U.S.C. §1395nn (2011). 3. Oregon Board of Dentistry. www.oregon.gov/dentistry/docs/ gouponletter.pdf. Accessed July 24, 2012. 4. Oregon Board of Dentistry. www.oregon.gov/dentistry/docs/ livingsocialletter.pdf. Accessed July 24, 2012.
JADA 143(9)
http://jada.ada.org
Copyright © 2012 American Dental Association. All rights reserved.
September 2012 1037
ETHICAL
MOMENT
ETHICALMOMENT WHAT ARE THE ETHICAL IMPLICATIONS OF USING SOCIAL COUPONS TO EXPAND MY PATIENT BASE?
Q
The last few months have been a test of my ability to provide dental care to patients while maintaining a viable practice because of the stresses of the economic downturn. I have been considering whether I should use social coupons as a way to attract new patients. I called one of the social coupon companies to obtain more information about the process. As I understand it, I specify the treatment or service that I want to offer and the price point for the service and the company markets it for me. A representative explained that most people offer a service at a discount of at least 50 percent from the usual fee. The company keeps about 40 percent of the fees collected and sends the remainder to the service provider. I would receive my money up front, and if a patient does not show up, I still would be paid. This seems to be a good plan. I could boost my patient exposure and possibly retain some of these patients once they are in the door, increasing my overall patient base. My plan is to offer a coupon for a basic and often necessary service, such as a cleaning, radiographs or maybe tooth whitening, because these services are in high demand. However, I have concerns about offering tooth whitening or even a cleaning without an examination. I know other dentists do this, but I am not sure how they can without first assessing a patient’s dental health. I also wonder how my current patients might feel if people who were not my patients received the same care for less than my usual fee. How would my colleagues feel? Would it be appropriate to accept a fee from someone who did not show up for treatment? During what period would the coupon be valid? With so many questions, I am unsure how to proceed.
A
The use of social coupons for services is an increasingly important topic in dentistry and health care generally, and it is evolving quickly, raising numerous legal and ethical issues. Certain sections of the American Dental Association Principles of Ethics and Code of Professional Conduct1 (ADA Code) raise ethical issues that must be addressed when using this type of couponbased marketing. Thus, before marketing dental services by using social coupons, dentists need to put much thought and planning into their decision. In addition, local, state and federal laws might be applicable to this kind of advertising and fee arrangement. An arrangement with a company that provides social coupons might amount to fee splitting, especially if the company collects the fee being charged to the patient and keeps a percentage of it. This represents a type of kickback that might be illegal in some states. It also might be a violation of the federal “Stark Law”2 if a dentist treats patients who receive Medicaid or Medicare and does not offer them the same benefits as other patients. In addition, Advisory Opinion 4.E.1, Split Fees in Advertising and Marketing Services, directly addresses this type of payment arrangement: The prohibition against a dentist’s accepting or tendering rebates or split fees applies to business dealings between dentists and any third party, not just other dentists. Thus, a dentist who pays for advertising or marketing services by sharing a specified portion of the professional fees collected from prospective or actual patients with the vendor providing the advertising or marketing services is engaged in fee splitting. The prohibition against fee splitting is also applicable to the marketing of dental treatments or procedures via “social coupons” if the business arrangement between the dentist and the concern providing the marketing services for that treatment or those procedures allows the issuing company to collect the fee from the prospective patient, retain a defined percentage or portion of the revenue collected as payment for the coupon marketing service provided to the dentist and remit to the dentist the remainder of the amount collected.1
According to Advisory Opinion 4.E, Rebates and Split Fees, “[d]entists shall not accept or tender ‘rebates’ or ‘split fees.’ ”1 This
JADA 143(9)
http://jada.ada.org
Copyright © 2012 American Dental Association. All rights reserved.
September 2012 1035
PERSPECTIVES
ETHICAL
MOMENT
potential obstacle may be overcome if you enter into a different type of contractual arrangement with the social coupon company. For example, in the state of Oregon, one of the major social couponing companies recently proposed a payment arrangement with dentists in which all fees paid by the prospective patient would go directly to the dentist, who, in turn, would pay the company a set fee for promoting the coupon.3,4 Such an arrangement is unlikely to run afoul of concerns about fee splitting. Other important areas for you to consider include the unintended setting of fees and the potential for insurance fraud. Some insurance companies’ reimbursements are set on the basis of a provider’s average fee for a given procedure. Offering and performing a specific procedure at a much reduced fee might allow the insurance company to reduce its reimbursement to that dentist for that treatment. If some of the coupon-holding patients have dental insurance and you bill for your full fee instead of the amount paid by the patient with the coupon for the procedure, this could constitute insurance fraud. It also might amount to misrepresenting fees charged, in violation of Section 5.B, Representation of Fees, which states that “[d]entists shall not represent the fees being charged for providing care in a false or misleading manner.”1 Also, pursuant to Advisory Opinion 5.B.1, Waiver of Copayment, it is important to account for patients’ copayments when making claims to third-party payers. To be certain that any reduction in fees or elimination of copayments does not amount to fraud, you may wish to consult your private attorney regarding state and federal laws that might apply to the use of social coupons. Another potentially problematic issue is a coupon holder’s failure to redeem the coupon; in such a situation, you will have been paid for a service you did not render. Still another issue is whether the person purchasing and seeking to use the coupon actually needs the service at all. Advisory Opinion 5.B.6, Unnecessary Services, addresses this question directly: A dentist who recommends and performs unnecessary dental services or procedures is engaged in unethical conduct. The dentist’s ethical obligation in this matter applies regardless of the type of practice arrangement or contractual obligations in which he or she provides patient care.1
1036
JADA 143(9)
http://jada.ada.org
To avoid this problem, a dentist seeing a patient for the first time may need to perform services other than those for which a coupon was purchased. However, in such a situation, the coupon bearer may feel that he or she has been part of a bait-and-switch scheme. This might arise if a prospective patient makes an appointment for a tooth whitening treatment for which he or she purchased a coupon but then is told that an examination and radiography must be performed first. Although this is appropriate dental care, the patient must now pay for additional services over those that he or she purchased through the coupon. You can prevent this conflict by disclosing in the deal description that other procedures not covered by the social coupon may be necessary before the treatment covered by the coupon can be performed. Some people who purchase coupons may have a dental home but choose to purchase a needed procedure through a social coupon provider to obtain the service at a reduced fee. Such practices may encourage patients to abandon their dental home and shop around for the best deal for any needed treatment. This could hamper dentists’ professional role and impede continuity of care for patients. Conduct that raises this kind of risk arguably falls within the scope of Section 2, Nonmaleficence (“do no harm”).1 The perception that may be created when health care services are discounted is that the reduced fee obtained is as important as, or more important than, the quality and safety of care provided. This does a disservice to both patients and the profession overall. Social couponing is a prevalent marketing practice in today’s Internet-driven society and can be a valuable tool for dentists to use in marketing and building their practices. However, dentists are advised to proceed cautiously in using these services so that they can enjoy the rewards without compromising patient care and while maintaining dental practices free of ethical and legal concerns. ■ Richard Rosato, DMD, practices oral and maxillofacial surgery in Concord, N.H., and is a member of the American Dental Association Council on Ethics, Bylaws and Judicial Affairs.
September 2012
Copyright © 2012 American Dental Association. All rights reserved.
PERSPECTIVES
Ethical Moment is prepared by individual members of the American Dental Association Council on Ethics, Bylaws and Judicial Affairs (CEBJA), in cooperation with The Journal of the American Dental Association. Its purpose is to promote awareness of the American Dental Association Principles of Ethics and Code of Professional Conduct. Readers are invited to submit questions to CEBJA at 211 E. Chicago Ave., Chicago, Ill. 60611, e-mail “[email protected]”. The views expressed are those of the author and do not necessarily reflect the opinions of the American Dental Association Council on Ethics, Bylaws and Judicial Affairs or official policy of the ADA.
ETHICAL
MOMENT
Address reprint requests to the American Dental Association Council on Ethics, Bylaws and Judicial Affairs, 211 E. Chicago Ave., Chicago, Ill. 60611. 1. American Dental Association. American Dental Association principles of ethics and code of professional conduct, with official advisory opinions revised to April 2012. www.ada.org/sections/ about/pdfs/code_of_ethics_2012.pdf. Accessed July 26, 2012. 2. 42 U.S.C. §1395nn (2011). 3. Oregon Board of Dentistry. www.oregon.gov/dentistry/docs/ gouponletter.pdf. Accessed July 24, 2012. 4. Oregon Board of Dentistry. www.oregon.gov/dentistry/docs/ livingsocialletter.pdf. Accessed July 24, 2012.
JADA 143(9)
http://jada.ada.org
Copyright © 2012 American Dental Association. All rights reserved.
September 2012 1037