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MyView: Is our image in jeopardy?

January 21, 2013

By D. Milton Salzer, D.D.S.

Since the Federal Trade Commission's decision many years ago that prohibitions on advertising were anticompetitive and professionals should be free to advertise without repercussions—and society membership would be open to those who did advertise—it has been like the wide open Wild West when our country was settled.

Back then, people were staking out land for farms, ranches and houses, and there were few laws or regulations. In our profession, it was almost the same. Any kind of promotion, gimmick or advertising could be employed in the search for the new patient.

We all have been barraged with multiple promotional pieces on TV, radio, magazines, newspapers, direct mail, coupons and the Internet. All of these are designed to get new patients into our chairs; in an ideal world, they would stay in the practice and build up our patient population through referrals. This, of course, translates into greater income for the dentist. Making money is not sinful or perverse until it crosses a "line" and becomes the most important thing we are about and the very focus of our existence.

For many, that line was violated a number of years ago when any kind of practice promotion was permitted. Newer generations of dentists no longer remember or have ever heard of days when physicians and dentists were "too professional" and dignified to engage in any activities like marketing, self-promotion or advertising in any media.

For us, marketing meant doing the best dentistry possible, treating the patient kindly, respectfully, not hurting them, and washing your hands frequently in front of the patient. In those days, the size of our sign, and the height of the letters, was spelled out in great detail. To obtain membership in the tripartite, a member of the ethics committee visited your office, met with you, looked around and actually measured your letters (in my second floor office window, where only one sign was permitted in any one direction). Obviously those days are long gone and younger dentists laugh at all that minutia and silliness, but there are still some of us practicing who do remember those days.

What hasn't changed, though, is a desire to be respected and admired by our patients, friends and community. That seems quite normal under the circumstances of our very rigorous predoctoral requirements and standards to obtain our degrees.

The Dental Practice Act of Illinois, my home state, explains in great detail the permitted tasks and prohibitions in the conduct of the dental profession. Intended to protect the dental health of the public from unlicensed persons masquerading as doctors, it also protects the integrity of the profession from dentists who have crossed that line into uncharted waters.

While it may seem that almost "anything goes" in terms of practice promotion, there are very specific rules and regulations that must be adhered to; the public has been fairly successfully protected from scam artists and others, who through unscrupulous methods would take advantage of unwary patients. The Illinois Dental Practice Act Rules and Regulations are not static, but dynamic. Over the years, as education or societal changes occur, efforts are made to make certain the document remains relevant and current. Pick up any of the throw away magazines we receive monthly and you will see a myriad of practice management ideas intended to solve the empty chair syndrome, and a host of other ideas for increasing the bottom line. The Illinois State Board of Dentistry is our professional watchdog ensuring no standards are violated.

The members of the Illinois State Board have informally reached a consensus that the practice of "couponing," if it involves sharing the fee charged with a marketing company (like Groupon, Amazon or Gilt), may in fact be classified as fee splitting—which is strictly prohibited. However, the Illinois Department of Professional Regulation and the Illinois governor have not reached that same conclusion, so things are at a standstill. Since last summer, the Illinois State Dental Society has urged the department to quickly issue its final decision.

Violating Illinois' Act could result in action taken against the dentist, which can be costly, embarrassing and unpleasant. Reading Illinois' Act and all its subtle nuances is a good idea to avoid making mistakes. As the head of the dental team, the dentist is responsible for making prudent decisions concerning patient care as well as the business decisions about marketing and promotion.

Our image as professionals is on the line continually. The pride that we felt at our white coat ceremony should be part of our everyday thought process. Conducting ourselves in such a way that we never dishonor the trust of our patients, our colleagues and our profession should be part of our personal credos. The choices we make should always involve the highest ethical standards in our personal as well as professional lives, and result in the enhancement of our professional image.

Dr. Salzer is the editor of the Illinois Dental News, the publication of the Illinois State Dental Society. His comments, reprinted here with permission, originally appeared in the May 2012 issue of that publication.

Editor's note: The ADA Council on Ethics, Bylaws and Judicial Affairs issued an advisory opinion (4.E.1.) relating to split fees in advertising and marketing in March 2012, which states:

"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 service 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.

"Dentists should also be aware that the laws or regulations in their jurisdictions may contain provisions that impact the division of revenue collected from prospective patients between a dentist and a third party to pay for advertising or marketing services."

The ADA Legal Division offers more details on referral gifts, social coupon discounts and state law.