FEBRUARY / MARCH 2016 Vol. 27, No.

A Risk Management Newsletter from OMSNIC

Feature Article The Informed Consent Process: Overcoming Language Barriers

The expansion of the non-English speaking population in the United States has created
2 a need to understand how to manage consenting non-English speaking patients; see
how OMSNIC can help. By Michael Stronczek, DDS, MS. >>

Board Message A Message from the President & CEO

As OMSNIC continues to focus on its “core values”, learn about the enhanced
4 benefits the company is now offering policyholders. By William C. Passolt, CPA. >>

Patient Management Treating A Minor - Things To Consider

Considerations are offered to help you determine who has the proper authority to
6 provide consent for a minor patient. By Joshua Larman, JD. >>

Regulation Compliance Alphabet Soup: Regulatory Basics Related to LEP and ADA
With the growth in disparity in health care literacy levels and the ever-expanding gap
8 between the abled and disabled, the need for an OMS to know the LEP and ADA
regulations is at an all time high. By Lolade Mitchell, MSN. >>

Closed Claim Summary The Cost of Limiting Interpretation Services

How matters related to the regulations set forth by the Americans with Disabilities
11 Act (ADA) can spiral into a malpractice case. >>

Resident Matters OMSNIC Resources for Residents

OMSNIC’s committment to the Specialty begins with supporting OMS residents
12 throughout their training. Review a summary of the resources available to residents
at www.omsnic.com. >>

Also in this issue:

Spanish Translated Consent Forms
10 Recommendations
Available in March!
to Ensure Effective
Communication with LEP OMSNIC Informed Consent Forms
Patients have been translated from English
into U.S. Spanish will be available on
13 LEP and ADA FAQs
www.omsnic.com in March.
15 OMSNIC Online
See page 2 for more information and
16 RM Courses tips on managing the consent process
with non-English speaking patients.

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Feature Article

The Informed Consent Process: Overcoming Language Barriers

Michael J. Stronczek, DDS, MS, OMSNIC Director and Chair, Risk Management Committee

Back in October, the OMSNIC Risk Management Committee announced the completion of the
Informed Consent project. The Committee thoroughly reviewed and revised all of the informed
consent forms and made the library of forms available on the website.

In the weeks that followed the October release, OMSNIC received multiple calls requesting the
consent forms be translated into U.S. Spanish. In response to our insured’s requests, OMSNIC’s
newly-revised consent forms are being translated from English into U.S. Spanish, and will be
available on www.omsnic.com in March.

Our goal was to provide our policyholders access to a library of consent forms written in the
second most common language spoken in the United States. Our informed consent forms have
been translated by a credible organization founded by a group of multilingual doctors, scientists
and engineers. The process was managed by project managers who understand the complexities
of both technical and linguistic challenges, and have experience translating informed consent
forms. The project managers employed a robust translation process that included translation,
editing, and proofreading. In addition, the
Spanish Translated Consent Forms Available in March new U.S. Spanish forms have been certified
The translated forms mirror the English forms, a feature that and vetted by some of OMSNIC’s own
Spanish-speaking OMS. The translated forms
will greatly assist you when addressing a Spanish speaking
mirror the English forms, a feature that will
patient.
greatly assist you when addressing a Spanish-speaking patient. Similar to the English forms,
these forms will easily convert into your EMR system.

The Informed Consent Process: Non-English Speaking Patients

The documents themselves fulfill only one aspect of the informed consent process. In addition
to the patient signing an informed consent form, in any language, the informed consent process
requires a thorough discussion with the patient and the appropriate documentation of the event.
The translated document alone does not remove the need for a skilled speaker or medical
interpreter to effectively inform and discuss the proposed procedure with the patient, and answer
any questions a patient might have. During the informed consent process, the discussion might
be the patient’s main approach to comprehending the proposed treatment. A person’s ability
to read and write in their native language is not necessarily equivalent to their ability to speak
their native language. Consider a patient who cannot read or write presents to your office for
an “emergent” tooth extraction. This patient is accompanied by a friend, but both of them
only speak Spanish. For this patient, reading and comprehending a Tooth Extraction Informed
Consent Form translated in Spanish might be difficult. If the form was the only means of
describing the procedure, risks, benefits, and alternatives to treatment, this patient would not be
well-informed about the procedure, and any complications that might arise. For a doctor who is
conversant in Spanish, leading the informed consent conversation without an interpreter might
be appropriate. For a doctor who is not conversant in Spanish, attempting to “get by” with the
conversation in English will not suffice.

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Feature Article

The Informed Consent Process: Overcoming Language Barriers

continued from previous page

The level of patient comprehension required in all aspects of treatment, including the informed
Effective consent process, dictates the patient be provided with sufficient information to make an
Communication educated decision to proceed or to forgo the procedure/treatment. In the United States, the
Tips average adult American reads at a 5th or 6th grade level. For this reason, the informed consent
See page 10 for tips on how to process begins with an in-depth conversation with the doctor regarding the procedure; followed
communicate effectively with by the reading and discussion of the informed consent form that is written in very basic language;
Limited English Proficiency (LEP) and concludes with a note in the chart describing the process and the patient’s decision.
patients.
Know Your Patient Population
To successfully implement the informed consent process, consider your patient demographic.
If your office regularly treats non-English speaking patients, and you only speak English,
considerations should be made to find a credible medical interpreter or hire a bilingual or
multilingual speaking staff member who can assist with translation as needed. Local hospitals are
great resources for identifying credible interpreters. It is also essential you know the guidelines
enacted by the Americans with Disabilities Act related to interpreters and interpretation, some
of which will be covered in this issue. Lastly, consider downloading the new OMSNIC informed
consent forms that have been translated into U.S. Spanish if you treat Spanish-speaking patients.
If you have any questions on how to
use the forms, please call OMSNIC
and ask for a Risk Manager to assist
you.

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Board Message

A Message from the President & CEO

William C. Passolt, CPA, OMSNIC President and CEO

One of the core values we follow at OMSNIC is to protect and enhance the practice of oral
and maxillofacial surgery. Most OMS would translate this to mean providing defense of OMS
in professional liability or department of professional regulation claims – OMSNIC’s most
recognizable and valuable service.

However, we interpret this core value more broadly. It includes:

• OMSNIC’s acclaimed risk management education program to assist OMS in providing

exceptional patient safety, and secondarily, to reduce the number or severity of claims made
against a practice.

• Additional insurance products such as the Group Personal Excess (“Umbrella”) policy issued by
Chubb and Data Defense cyber coverage, both provided to all OMSNIC insureds.

• Additional value-added services provided by high-quality companies at group purchasing prices

to OMSNIC insureds. This would include the business owners and workers compensation
products with enhanced coverage from Hanover Group.

OMSNIC continues to work on new or revised initiatives to meet this expanded definition.

Carestream Agreement
In the fall, OMSNIC entered into an agreement to license its informed consent forms to
Carestream Dental for use in its CS WinOMS practice management product. Under this
agreement, OMSNIC will provide updated forms to Carestream on a periodic basis. Carestream
will upload those changes to CS WinOMS. The software will also notify the practice that a form
has been added or amended, making it easier for practices to have the most current OMSNIC
forms available. Additionally, Carestream intends to incorporate electronic patient signatures into
its software to allow the forms to be automatically made a part of the patient’s electronic medical
record. While OMS will still have the forms available through OMSNIC’s website, we believe the
ability to have forms incorporated into the practice management software provides efficiencies to
a practice.

Enhanced Data Defense Coverage

TM
Effective January 1, 2016, the Data Defense coverage, already a part of your OMSGuard
Professional Liability policy, now also includes additional coverage for (1) proactive privacy breach
response costs and voluntary notification expenses and (2) a new $25,000 limit for PCI DSS
(Payment Card Industry Data Security Standards) Assessments. Data breaches continue to grow
in health care. While your OMSGuard policy provides some basic coverage, we encourage you
to discuss additional coverage with your OMSNIC agent to ensure your practice has adequate
coverage for the potential risks in your practice.

The River Agency

The Company also established a new wholly-owned subsidiary, The River Agency, in 2015. This
agency will make it easier for OMSNIC to work with existing carriers to bring group insurance
products to our OMS policyholders, similar to the current Chubb program. OMS have many
insurance needs besides professional liability, both personally and for their practices. We believe

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Board Message

A Message from the President & CEO

continued from previous page

opportunities exist to provide additional insurance products at group prices or with broader
coverage - or both - with strong insurance companies. This agency will be used to explore the
market to identify good products, and then act as the program administrator, working with
OMSNIC’s independent agent network, to market these products.

These are a sample of some of the other ways OMSNIC works to add value to your OMSGuard
policy without losing sight of our primary goal of Defending the Specialty. Combined with the
many other features and benefits included in your OMSGuard policy, this is how OMSNIC offers
OMS comprehensive insurance for the changing environment in which OMS practice.

Let me close by saying that OMSNIC is your company. Over 83% of eligible OMS have their
professional liability insurance with OMSNIC. All policyholders are stockholders in OMSNIC – this
means the Company profits are returned only to you and other OMSNIC shareholders. OMSNIC
is exclusively endorsed by the AAOMS, and rated A (Excellent) by the A.M. Best Company.
OMSNIC is more than an insurance provider – it is an investment in your future.

Value Added Coverages

Partnership/corporation coverage with separate limits at no charge

Employment Practices Liability: $25,000 per occurrence/ $75,000 aggregate

Governmental Actions Coverage (Dental Board Actions): $25,000 per proceedings/$75,000

aggregate

Fraud & Abuse (Medicare/Medicaid) & HIPAA Coverage: $25,000 per occurrence/$25,000
aggregate

Wrongful Acts: $25,000 per patient/$25,000 aggregate

Data Defense cyber coverage

Aesthetician Coverage: available at no charge

Office-based CT Coverage for your patients

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Patient Management

Treating a Minor—Things to Consider

Joshua Larman, JD, OMSNIC Corporate Counsel

As a doctor who treats minors, a question you must always ask yourself is, “Who has the
authority to consent on behalf of a minor patient?” The answer is based on the minor and his or
her particular circumstance and the laws in your state.

In determining who has the authority to consent, it is important you first understand the “status”
of the minor patient. A great starting point will always be to determine the age of the patient,
and note whether they have reached the age of majority. Depending on your state law, a minor
reaches the age of majority between the ages of eighteen and twenty-one. However, the most
frequently asked questions involve scenarios where other factors must be considered as well.
The following examples highlight some of the common issues to consider when treating minors.
These examples are not intended to be a comprehensive analysis of all potential issues when
treating minors, and specific questions should be directed to legal counsel in your state.

Minor Under Care of Parents

The majority of states require that informed consent be obtained by a minor’s parents prior to
any procedure being performed. However, there are exceptions for this requirement when the
minor presents to the office under emergency conditions. In this instance, an OMS should follow
their standard emergency care protocol if delaying treatment would result in increased risk to the
minor’s health or life.

A common occurrence in non-emergency situations is when the minor’s parents are unable to
accompany the child to the office. The question of how consent can be granted in this instance
is not statute-based and varies by state. A safe approach would be for the minor’s parents
to designate another individual (i.e. relative, adult sibling) as having the power to consent to
treatment of their minor child. If the minor’s parent and/or other representative is not able
to accompany the minor, the OMS should request written authorization and consent, which
clearly describes the treatment to be performed, be delivered to the office at the time when
the appointment is confirmed. If, at the time of the procedure, the OMS determines additional
treatment is necessary, the procedure should be postponed until proper consent is obtained.

Emancipated Minor
Minors become emancipated when conditions arise that allow the minor to become independent
of their parents. State statutes vary on the required procedures and conditions for minors to
become emancipated, so it is important to understand the laws in your jurisdiction. A court
may grant an emancipation request when a minor’s parents have abandoned the child or have
failed to provide economic support. A minor will also likely be emancipated if they legally marry
or are pregnant. If a court or the minor’s parents agree to an emancipation request, the minor
will be issued a declaration of emancipation. This form should be presented to the OMS prior to
treatment and will serve as the minor’s authorization to consent.

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Patient Management

Treating a Minor—Things to Consider

continued from previous page

Minor Who Is a Ward of the State or Under Guardianship

If a court has designated a minor child or an incapacitated adult as a ward of the state and
appointed guardianship, the guardian (i.e. state agency, group home, etc.) has the power to
consent to the minor’s medical treatment. A guardian’s control over a minor will vary based on
state law and typically will receive continuing court oversight post appointment. Upon arrival for
the minor’s care, the guardian should provide the OMS with a court-issued letter indicating their
status as guardian. This form should provide the guardian with full authority to consent to the
minor’s medical treatment. There are, however, instances when a minor’s parent requests certain
procedures not be performed, even when the minor is under another’s guardianship. In this
instance, unless the treatment is for emergency services, the OMS should request the guardian to
provide approval for the specific treatment by a court order.

Download the “Informational Guide for Treatment of a

Minor” document.

For additional information on obtaining consent to treat a minor patient in their parent/
guardian’s absence, download the document “Informational Guide to Treatment of a
Minor”. See page 15 for information on how to access this document on omsnic.com.

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Regulation Compliance

Alphabet Soup: Regulatory Basics Related to LEP and ADA

Lolade Mitchell, MSN, MPH, RN, Risk Manager

It is likely that you will experience the challenges of providing care to a patient with limited
English proficiency (LEP) or a disability during your career. The U.S. Census Bureau estimates that
approximately 25 million people in the United States have LEP1, and an astounding 56.7 million
people living in the United States have a disability2. Who are these people? An individual with
limited English proficiency is someone who does not speak English as their primary language and
has a limited ability to read, speak, write or understand English3. An individual with a “qualified
disability” is a person who has a physical or mental impairment that substantially limits one
or more major life activities, a person who has a history or record of such an impairment, or a
person who is perceived by others as having such an impairment4.

According to the US Department of Health & Human Services: Agency for Healthcare Research
and Quality, individuals with LEP and/or a disability have a greater chance of experiencing an
adverse event or patient safety issue than those individuals who speak English or do not have a
qualified disability1. As a result, a number of regulations have been enacted by the Civil Rights
Division of the Department of Justice to prohibit discrimination, some of which impact the
delivery of healthcare.

Americans with Disabilities Act

A patient’s disability could impact the delivery of care in an oral and maxillofacial surgery office.
The degree of impact is largely based on their respective disability. For example, patients with a
physical disability, such as blindness, will present to the office with different challenges than those
with a mental disability, such as alcoholism. In an attempt to ensure equal access to healthcare,
irrespective of their presenting challenges, Titles II and III of the Americans with Disabilities Act
(ADA) (an “equal opportunity” law for people with disabilities) established a clear mandate for
“doctors, dentists and other health care providers, as well as all hospital programs and services”5
to eliminate discrimination against people with disabilities. Despite the regulations enacted by
the ADA, patients with disabilities continue to experience discrimination with treatment and
accessibility to health care. Three of the most prevalent issues related to access in the health care
setting are (1) lack of effective communication, (2) lack of accessible equipment and services and
(3) refusal of care.

How Can You Avoid Discrimination Under ADA and LEP Regulations?
See page 13 for frequently asked questions regarding these regulations.

Communication
According to the ADA, an office that interacts with hearing impaired patients or their family
members is obligated to provide those patients or their family members with a method of
communication, services, or aids needed to communicate effectively. Exchanging written notes,
or utilizing forms and information sheets might be ideal for some situations with little interactive
communication (i.e. filling out a medical history form). However, for more complex and interactive
conversations (i.e. discussion of symptoms, diagnosis, treatment options, informed consent),
providing and paying for a qualified sign language interpreter might be necessary. Video
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Regulation Compliance

Alphabet Soup: Regulatory Basics Related to LEP and ADA

continued from previous page

interpreting services may be an option, but the equipment must be in place and office staff must
know how to operate it. The ADA prohibits requiring family members or other representatives
to interpret for a person who is hearing impaired because of potential emotional involvement,
confidentiality, and limited interpreting skills.

Equipment & Services

Under the ADA, failure or refusal to provide health care services to a patient with a “qualified”
disability is discriminatory. This may include failure to examine a patient thoroughly because of
an inability to transfer him or her to a dental table or chair, or refusal to perform an x-ray because
the patient cannot fit in the designated space. Ask yourself if your facility caters to those who
are wheelchair bound. Does your x-ray machine require patients to stand? If your office cannot
properly accommodate certain patients with physical disabilities, consider caring for them in a
local hospital that can accommodate them (if you have hospital privileges), or consider renting
the necessary equipment. Regardless of your ability to accommodate the patient, remember to
consider your level of comfort and expertise in treating the patient. It is important that an office
have a well-constructed plan in place for managing patients with physical disabilities

Refusal of Care
Based on laws outlined in the ADA, refusal to provide a patient care because he or she has HIV
is grounds for legal action. In Bragdon v. Abbott, “a case involving a dentist who refused to
provide even the most routine dental care to a patient with HIV”5; the court ruled “a medical
provider may not refuse to treat by invoking the direct threat defense unless the risk of HIV
transmission is significant and based on objective evidence”5. A similar group of patients who
might be refused care are those who utilize a service animal. According to the ADA, offices with
a “no pets” policy must ensure service animals are allowed into their facilities, and the patient’s
service animal is not isolated from any area the public or patients are allowed to go.

Limited English Proficiency

Communication challenges with LEP patients can include issues related to patient comprehension
of the condition of their oral cavity, the recommended treatment plan, procedural complications,
and pre or post-operative instructions, including how to prepare for a procedure, manage their
condition, and which symptoms should prompt follow up. Patients with LEP might provide an
office an inaccurate or incomplete dental/medical history, or may suffer from serious medication
errors related to a misunderstanding of instructions. These patients might also be recipients of
poor or inadequate informed consent as a result of their proficiency levels. The Feature Article
addresses risk management strategies for managing the informed consent process with LEP
patients. Additional communication tips can be found on page 10.

Although there is a vast amount of information that relates to health care regulations
pertaining to LEP and ADA, knowledge of these nuances can be valuable to one’s professional
reputation, patient safety and to protecting an office from claims of discrimination. Early, open
communication with the patient might be the best ADA compliance tool used to help determine
the most reasonable accomodation.

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Regulation Compliance

Alphabet Soup: Regulatory Basics Related to LEP and ADA

continued from previous page

Recommendations To Ensure Effective Communication with LEP Patients

Provide a qualified interpreter(s) when communicating with an LEP patient. Having

Still Have
Questions?
See page 13 for FAQs related
to LEP and ADA regulations.
command of at least two languages is a prerequisite to any interpreting task. The
interpreter must be able to (1) comprehend two languages as spoken and written
1 (if the language has a script), (2) speak both of these languages, and (3) choose an
expression in the target language that fully conveys and best matches the meaning
of the source language3.
Refrain from using family members or friends as interpreters given their limited
understanding of oral and maxillofacial surgery and their likelihood to not question
2 the use of medical terminology that they and the patient do not understand. In
addition, issues related to confidentiality may prevent patients from disclosing
critical health information.

Refrain from using non-qualified staff as interpreters. Refer to the above criteria to
3 identify a qualified interpreter.

Avoid the use of basic language skills to “get by”. A patient is at greater risk of
encountering an adverse event when a clinician (doctor or his staff) with basic or
4 intermediate foreign language skills attempts to manage a conversation without
the use of a competent interpreter.

Provide translated materials in the patient’s preferred language or, at a minimum,

5 request the qualified interpreter interpret the written material that is not translated
and sign as a witness.

Use the “teach-back” method to confirm patient understanding. This is an

6 effective way to confirm a patients’ comprehension of what is being explained to
them. It requires he or she “teach-back” the information accurately.

Recognize that a patient’s cultural beliefs and traditions might influence the
7 doctor-patient encounter and impact the results of the care provided (i.e.
minimized reports of pain, gender roles, authority deferment, etc).

1. Agency for Healthcare Research and Quality. (2012, September). Improving patient safety systems for patients with
limited English proficiency: A guide for hospitals. Rockville, MD.
2. Brault, M. W. (2012 July). Americans with disabilities: 2010: Household economic studies. Washington, DC: US Census
Bureau.
3. LEP.gov. (2011 April). Commonly asked questions and answers regarding limited English proficient (LEP) individuals.
Accessed from http://www.lep.gov/faqs/faqs.html.
4. Institute of Medicine Committee on Disability in America. Field, M.J. & Jette, A. M. (eds) (2007). The Future of Disability
in America. Washington, DC: National Academies Press.
5. US Department of Justice Civil Rights Division. (n.d.). Access for All: Five years of progress: A report from the Department
of Justice on Enforcement of the Americans with Disabilities Act.
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Risk
Management Tip
• Review all documents
completed by a patient prior
to the initiation of a treatment
plan or procedure.
• Know the regulations set
forth by the ADA that has
the potential to impact your
practice.
• Interpretation services must be
offered to patients who might
need it and provided at NO
COST.
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Closed Claim Summary
The Cost of Limiting Interpretation Services
Lolade Mitchell, MSN, MPH, RN, Risk Manager
So Here Is What Happened
A seventy-nine-year-old deaf and mute woman who was last seen in our insured’s office ten years
ago, presented for evaluation and treatment of a “painful” tooth #19. After consultation with her
referring dentist, a decision was made to extract the patient’s remaining lower teeth, #18, 19 and
20, which had significant periodontal bone loss. Our insured opted to postpone treatment until
the patient could return with her son to discuss treatment options and obtain written informed
consent. A few days later, the patient returned with her son who assisted with interpretation. A
deposit for treatment was made, and the three remaining lower teeth were extracted without
complication. The patient’s son returned to the office a few days later to pay the balance due. At
that time, he demanded our insured reduce the fee because of his failure to provide the patient
with interpretation services. The request was denied. A month later, our insured received a
complaint letter from the Department of Health and Human Services. Two years later, a malpractice
suit was filed in federal court alleging the patient was “denied the opportunity to participate in her
dental care and decision making” due to a lack of informed consent and discrimination.
The Background
Ten years ago, the plaintiff was initially referred to our insured for consultation for extraction of four
upper teeth. At that time, the plaintiff’s son who is also a deaf mute advised our insured that his
mother could not read lips or understand written English, but that he could translate written notes
to sign language for her. Our insured provided services to the plaintiff on two separate occasions
with this arrangement without issue. When the plaintiff presented back to our insured’s office, ten
years later, our insured recalled the previous interpretation arrangement and requested she return
with her son. When they returned, our insured wrote notes to the plaintiff’s son who then provided
the plaintiff with signed interpretation. Unbeknownst to our insured, prior to the last extraction of
teeth #18, 19 and 20, the plaintiff’s son requested interpretation services be used for his mother.
The first request was written on the plaintiff’s health history form, and the second request was
written on the informed consent form. Both of the requests were written next to the patient’s
signature.
The Analysis
Our insured denied having seen the two written requests at the time of treatment. The plaintiff
had two health history forms completed, one by her the day she presented without her son, and
one from her son, the actual day of surgery. Prior to surgery, our insured reviewed the initial health
history form filled out by the plaintiff. The request for interpreter services was not on that form.
Similarly, our insured reportedly failed to review the informed consent form after the patient signed
it, and therefore, did not notice the request for interpreter services near her signature. During all of
the encounters with the plaintiff, our insured recalled communicating with the plaintiff’s son by way
of written notes and pointing, and anticipated all requests would have come in a similar manner.
The defense of the case was hindered by the legitimate lack of informed consent and two requests
in the plaintiff’s health record for interpreter services.
The Outcome
This case was settled during mediation.
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Resident Matters

OMSNIC Resources for Residents

Whether you are a first year resident or preparing to graduate, OMSNIC offers a variety of tools
and resources for residents. All of these resources are conveniently located on our website,
www.omsnic.com.

Resident Surgical Log (RSL)

Many OMS Training Programs participate in the use of the Resident Surgical Log on
www.omsnic.com to enable OMS residents to record their surgical experiences during their
residency. OMS Training Programs also use the RSL to report on procedure-specific information
for accreditation. OMSNIC is currently developing a new surgical log that is more user-friendly
and can be accessible via an Android and Apple application. The anticipated release is Summer
2016. Additional information will be shared over the next few months.

Up to 60% Savings as a New-To-Practice OMS

50% First Year New-To-Practice Credit: Automatic discount applied to the first year of your
OMSNIC policy

Learn & Earn a 10% Risk Management Premium Credit: Risk Management education
promotes patient safety and helps reduce your liability exposure. In addition to the 50% First
Year New to Practice Credit, you can earn an additional 10% risk management premium credit.
To earn this credit, you must:

• Complete the Resident Risk Management Series online before graduation.

• Complete RMC 413 online or attend a live seminar.

• 10% credit is applicable to the first 3 policy periods only. 5% credit is renewable by completing
RMC 413 online or attending a live seminar.

Get Published with OMSNICase

OMSNIC encourages residents to share their educational cases with other OMS through
OMSNICase. OMS residents and faculty have submitted over thirty cases which have been
published on the OMSNIC website. Cases include the treatment of fractures, trauma, lesions,
and infections. However, cases do not have to be complex or extraordinary to be considered for
publication. All educational cases are welcome.

Visit the OMSNICase website for more information. If your case is selected, you will be a
published case author on OMSNIC’s website and a $1,000 unrestricted grant will be sent to your
residency program.

We look forward to hearing from you! If you have any questions, please call the Resident Hotline
at (855)OMS-RES1.

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FAQs

Limited English Proficiency (LEP) FAQs

Frequenty Asked Questions Regarding Limited English Proficiency Regulations

Who decides whether interpretation is needed?

The patient determines if he or she has limited English proficiency (read, write, and speak). The
doctor in consultation with the patient or patient’s representative determines what strategies are
needed to communicate effectively. Documentation of this conversation and the resultant use of
or refusal of an interpreter should be recorded in the health record.

Can an appointment be rescheduled if an interpreter is not available?

Yes, in many cases. If the case is emergent, you might need to employ an alternative solution.
A delay should not take place if the delay would reasonably deny the patient access to quality
care. Consider language line services when in a time crunch. They typically have 24 hour services
available.

Can the patient be asked to bring in a family member?

Family members or friends should not be used unless the patient chooses and only after you
advise the patient of your obligation to provide him or her with the interpreting service at no
cost. Family members may not have the appropriate skills to convey complicated health care
information and the patient may not wish to disclose his or her personal information to a family
member.

Do you have to use an interpreter selected by the patient?

No, you can require the patient use a qualified interpreter of your choice. The key word being
“qualified” (check with your local hospital or local public office to find one).

Who pays for the interpreter?

You CANNOT charge the patient for interpreter services. Some forms of insurance offer
reimbursement for interpretation services.

Americans With Disabilities Act (ADA) FAQs

Frequenty Asked Questions Regarding Americans With Disabilities Act Regulations

What are some examples of ADA qualified disabilities?

AIDS, and its symptoms; alcoholism; asthma; blindness or other visual impairments; cancer;
cerebral palsy; depression; diabetes, epilepsy; hearing or speech impairments; heart disease;
migraine headaches; multiple sclerosis; muscular dystrophy; orthopedic impairments; paralysis;
complications from pregnancy; thyroid gland disorders; tuberculosis; loss of body parts.

What are some examples of conditions that are not qualified “disabilities”?
The common cold or the flu, a sprained joint, minor and non-chronic gastrointestinal disorders, a
broken bone that is expected to heal completely, compulsive gambling, pregnancy, old age, lack
of education, poor judgment, bisexuality, or homosexuality. A person currently engaging in the
illegal use of drugs is not considered an individual with a disability. This refers both to the illegal
use of unlawful drugs such as cocaine as well as prescription drugs.

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Additional
ADA FAQs
• Access to Medical Care for
Individuals With Mobility
Disabilities
• Medical Office FAQs
• Service Animal FAQs
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FAQs
Americans With Disabilities Act (ADA) FAQs
Frequenty Asked Questions Regarding Americans With Disabilities Act Regulations
Can I tell a patient that I cannot treat her because I don’t have accessible medical
equipment?
Generally no. You cannot deny service to a patient whom you would otherwise serve because
she has a disability. You must examine the patient as you would any patient.
Can I decide not to treat a patient with a disability because it takes me longer to
examine them, and insurance won’t reimburse me for the additional time?
No, you cannot refuse to treat a patient who has a disability just because the exam might take
more of your or your staff’s time.
Is it OK to examine a patient who uses a wheelchair in the wheelchair, because the
patient cannot get onto the dental chair independently?
Generally no, however, if the examination does not require that a person lie down, then the
dental chair is not important to the care and the patient may remain seated in the wheelchair.
Are there any limits on the kinds of modifications in policies, practices, and procedures
required by the ADA?
Yes. The ADA does not require modifications that would fundamentally alter the nature of
the services provided by the office. To require a doctor to accept patients outside of his or her
specialty would fundamentally alter the nature of the practice.
Can I refer a patient with a disability to another doctor solely because the other doctor
is familiar with the patient’s type of disability?
Offices that routinely make referrals may refer an individual with a disability to another office for
service ONLY if the patient seeks or requires treatment/services outside the referring office’s area
of specialty (i.e. a clinic specializing exclusively in oral pathology could refuse to treat a person
who does not have oral cancer but could not refuse to treat a person who has an oral cancer
simply because the patient tests positive for HIV or is deaf).
What is a service animal?
A dog that has been individually trained to do work or perform tasks for an individual with a
disability. The task(s) performed by the dog must be directly related to the person’s disability. The
dog must be trained to take a specific action when needed to assist the person with a disability.
(i.e. a person who has epilepsy may have a dog that is trained to detect the onset of a seizure
and then help the person remain safe during the seizure). Emotional support, therapy, comfort, or
companion animals are not considered service animals under the ADA. However, check with you
State or local governments to see if they have laws that allow people to take emotional support
animals into public places.
What questions can staff ask to determine if a dog is a service animal?
In situations where it is not obvious that the dog is a service animal, staff may ask only two
specific questions: (1) is the dog a service animal required because of a disability? and (2)
what work or task has the dog been trained to perform? Staff is not allowed to request any
documentation for the dog, require that the dog demonstrate its task, or inquire about the
nature of the person’s disability.
FEBRUARY / MARCH 2016 Vol. 27, No.1 14
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OMSNIC Online Resources

omsnic.com
How to find additional risk management resources relevant to this issue on
www.omsnic.com.

Coming in March! U.S. Spanish translated informed consent

forms.
View Policy Information
Add/Edit Staff Scroll down to find the Spanish translated consent
Informed Consent Forms Informed forms available in March.
Consent Forms
Clinical & Office Documents
Risk Management Courses
OMS Guardian Archive
Data Defense
OMSNICase

New Documents Added!

• Informational Guide for Treatment of Minors

• Notice of Privacy Practices (HHS)

Clinical & Office • Compliance Related Documents
Documents
ƒƒ A Guide for Use of the Compliance Related Documents

ƒƒ Dismissal Letter

ƒƒ Informed Refusal of Treatment

ƒƒ Missed Appointment Letter

ƒƒ Noncompliance Letter

LOG IN TO OMSNIC.COM TO ACCESS THESE RESOURCES

Policyholders: Your User ID is your OMSNIC policy number (begins with a 2).

All Others (including staff): Sign in with your previously created login, or, if this
is your first time visiting our website, register as a guest.

You can retrieve your User ID or reset your password through the “Forgot User
ID/Password?” link.

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FEBRUARY / MARCH 2016 Vol. 27, No.1 15

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Risk Management Courses

OMSGuard Risk Management Education

A wealth of education, training, and other custom resources are available. Member policyholders
and staff can take online courses or attend live seminars for CE credits and premium discounts.
Login to omsnic.com to access these resources.

e-Learning Center
This is a robust risk management education library that provides OMS and staff with courses on
demand that are free of charge and designed to be completed at your own pace. The curriculum
covers basic risk management as well as emerging issues, and content is written and presented
by OMS and legal and insurance experts well versed in oral and maxillofacial procedures.

Get CE Credit: Earn CE credit upon successful completion of any e-Learning Center course.

Live Seminars
In a collaborative learning environment, OMSNIC’s team of expert speakers integrates case
2016 examples with nonclinical issues commonly seen in OMS claims. Check our online calendar for an
upcoming seminar in your area and registration information. Member policyholders who attend
a live seminar earn a renewable 5% risk management premium credit that is applicable for three
policy periods.

Can’t Attend a Live Seminar? RMC 413, available in the e-Learning Center, is a recorded
version of the live seminar. Complete RMC 413 to earn 4 CEs and the 5% premium credit.

OMS National Insurance Company, RRG (OMSNIC) is an ADA CERP Recognized Provider.
ADA CERP is a service of the American Dental Association to assist dental professionals in identifying quality providers of continuing dental education.
ADA CERP does not approve or endorse individual courses or instructors, nor does it imply acceptance of credit hours by boards of dentistry. Concerns or
complaints about a CE provider may be directed to the provider or to ADA CERP at www.ada.org/cerp.

OMSNIC Board of Directors OMS Guardian Editor: Patricia A. Pigoni

James Q. Swift, DDS The OMS Guardian is published by OMS National Insurance Company,
Chair Risk Retention Group to provide insureds with up-to-date information
Jerry L. Jones, DDS, MD on issues exclusive to the OMS. The OMS Guardian is dedicated to
Secretary the education and scholarship of the OMS community. It is meant
Robert F. Guyette, DMD, MD to provide you with information regarding risk management topics.
Treasurer Because federal, state and local law varies by location and situation
Michael J. Stronczek, DDS, MS and changes over time, nothing in this publication is intended to serve
as legal advice or to establish any standard of care. Legal advice, if
Anthony M. Spina, DDS, MD
desired, should be sought from competent counsel in your state. This
William C. Passolt, CPA publication is not intended as a modification of the terms, conditions
President & CEO TM
or coverage of your OMS Guard Professional Liability Insurance
Patricia A. Pigoni TM
Policy. Please refer to your OMS Guard Professional Liability
Sr.Vice President and COO
Insurance Policy for the specific terms, conditions and coverage.
Katherine A. Ehmann, CPA Copyright ©2016 OMS National Insurance Company, Risk Retention
Sr. Vice President and CFO
Group
Endorses OMSNIC

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OMS National Insurance Company, RRG
6133 North River Road, Suite 650 Rosemont, IL 60018-5173
800-522-6670 www.omsnic.com

FEBRUARY / MARCH 2016 Vol. 27, No.1 16