Topics discussed include avoiding pitfalls in lease renewals, employment law for professionals and small business owners, staying out of trouble in dentistry.

1. Legal Updates for
Your Dental Practice
June 7, 2016

2. Agenda
 Avoiding Pitfalls in Lease Renewals
 Employment Law for Professionals and
Small Business Owners
 Staying Out of Trouble in Dentistry

3. AVOIDING PITFALLS IN LEASE RENEWALS
Carla M. Moynihan, Esq.

4. Setting the Stage
 Location, Location, Location
– Building Type
– Visibility
– Signage
 Timing is Everything:
Business Planning 101
– Number and Type of Employees
– Office Size / Operatories
– Furnishings/Fixtures/Equipment

5. Relevant Lease Provisions
 Initial Term (5 years v. 10 years)
 Tenant or Landlord Defaults
 Use Restrictions v. Exclusivity
 Option to Extend Term
 Option to Expand
 Future Rent Determinations
 Option to Purchase

6. Initial Term
 5 years v. 10 years
 Early Re-Negotiation
 Find Leverage Points
– List All Tenant Needs
– Identify Any Landlord Needs
– Commonality

7. Tenant or Landlord Defaults
 Tenant Defaults
– Number
– Type
 Monetary
 Non-Monetary
 Landlord Defaults
– Past v. Existing
– Potential Leverage

8. Use Restrictions v. Exclusivity
 Existing Use Restrictions
– Any lawful use
– Any dental use
– Only specified dental use
(e.g., orthodontic)
 Existing Use Exclusivity
– All dental uses
– Only specified dental uses
 Time to Re-Negotiate?

9. Option to Extend Term
 Option to Extend Term
– Tenant’s Election
 10 year initial / 2 to 3 five year options
 5 year initial / 1 to 2 five year options
– Procedure
 Timing (count backwards)
– Number of months prior to expiration of
term (e.g., 12 or 9)
 Writing
– Follow notice provision in lease to Landlord /
counsel

10. Option to Expand
 Option to Expand the
Premises
– Adjacent Unit(s)
– Relocation to Larger Space
– Procedure
 Right of First Offer
 Right of First Refusal
 Response Time
 Writing

11. Future Rent Determinations
 Future Rent Determinations
– Established in Lease
– Annual Rent Increases (CPI v.
Percentage)
– Fair Market Rent (100% v. 95% or
less)
 Landlord Initial Determination
 Tenant Response
 Third Party Appraiser(s)

12. Option to Purchase
 Option to Purchase
– Premises
– Entire Property
– Procedure
 Right of First Offer
 Right of First Refusal
 Response Time
 Writing

13. Questions?

14. Agenda
 Avoiding Pitfalls in Lease Renewals
 Employment Law for Professionals and
Small Business Owners
 Staying Out of Trouble in Dentistry

15. EMPLOYMENT LAW FOR
PROFESSIONALS AND SMALL BUSINESS
OWNERS
Brian J. MacDonough, Esq.

16. Massachusetts Wage and Hour Law
The Basics
 Regular Payment of “Wages,” Minimum Wage, Meal
Breaks, Earned Sick Time
 Classification: Independent Contractor v. Employee
– Three Part Test (free from control and direction, services
performed outside the usual course of business, engaged in an
independent trade, profession, or business)
 Overtime (“White Collar” Exception – Executive,
Administrative, Professional)
 “Coverage” – The “specialist,” dental hygienist, office
manager, “back room”

17. Enforcement and Damages
 Investigation and Enforcement Action by the Attorney
General’s Office
 Private Right of Action
 Strict Liability
 Mandatory Treble Damages and Attorneys’ Fees
 Individual Liability

18. Common Issues/Mistakes Employers Make
 Vacation Pay
 Misclassification
 Overtime (Record Keeping)
 Deferral of Wages
 Offset of Wages

19. Employee Handbooks – The Dos and Don’ts
Dos…
• Use your employee handbook
to set expectations and
provide clarity, avoid
potential disputes and legal
claims
• Have clear policies that
comply with the law (vacation
pay, overtime, medical leave,
sick leave, harassment claims)
• Review policies on a regular
basis
Don'ts…
• Try to address every possible
situation
• Create affirmative obligations
• Assume one size fits all. Your
handbook should comply
with your individual state
laws and regulations

20. Discrimination / Retaliation Claims
 Interplay between various leave / disability laws -
ADA, 151B, FMLA, Paternal Leave, Sick Leave,
ERISA and more …
 Discrimination Claims – the “Pretext” analysis
 Retaliation – responding to internal complaints

21. Questions?

22. Agenda
 Avoiding Pitfalls in Lease Renewals
 Employment Law for Professionals and
Small Business Owners
 Staying Out of Trouble in Dentistry

23. STAYING OUT OF TROUBLE IN DENTISTRY
Thomas W. Kirchofer, Esq.

24.  What Gets Dentists Disciplined?
 What to do if the Board of Registration Comes Calling?
 Other Government Issues
Agenda

25. What Gets a Dentist Disciplined?
Dentistry is a heavily regulated industry
– The “Grounds for Discipline” are found in the Code of
Massachusetts Regulations
– 11 Separate Grounds for Discipline
– 234 CMR violations commonly lead to discipline, not
necessarily bad patient care

26. What Gets a Dentist Disciplined?
38 Disciplinary Decisions in 2015
Most common: 11 dentists disciplined
 Spore testing problems, sterilization problems, and
violations of guidelines in “Recommended Infection
Control in Dental Health-Care Settings – 2003”, published
by the CDC. 234 CMR 5.05
 A couple dentists fought this – they had a vendor that
monitored spore testing/sterilization and failed; that
didn’t matter

27. What Gets a Dentist Disciplined?
 Failing to renew a license
– Leads to a double whammy violation (failure to
renew a license, and practicing without a
license)
13 disciplinary decisions
(dentists and hygienists)

28. What Gets a Dentist Disciplined?
 Failure to have an emergency protocol with
a current emergency drug kit (234 CMR
5.15)
 Goes hand-in-hand with Local Anesthesia
violations (234 CMR 6.15)
7 dentists

29. What Gets a Dentist Disciplined?
 Naming and advertising
issues
– Failure to put a dentist-owner’s name
on advertisement (234 CMR 5.18)
– Failing to post licenses/failure to have
staff wear nametags (234 CMR 5.04)
– “Every registered dentist shall
exhibit his full name in plain readable
letters in each office or room where
his business is transacted” (G.L. ch.
112 § 44)

30. How Do I Stay Out of Trouble With the Board?
Read the Rules. Know the Rules
Document, document, document
 Numerous record-keeping rules, even beyond the patient record
Keep your patients happy!

31. What Do I Do if I Hear From the Board?
 The Board may visit your practice “at any time
without prior notice and conduct an inspection to
determine compliance with state law…” 234 CMR
5.17
 The Board may also investigate complaints
 Don’t Panic!

32. What Do I Do if I Hear From the Board?
 Written complaint and response
 Informal interview
 The Board may establish a Complaint Committee with 2
members (one must be dentist)
 They may then schedule an investigative conference, and
must give notice of the nature of the complaint
What’s coming up if they find something wrong or get a
Complaint?

33. What Do I Do if I Hear From the Board?
What Can They Do to Me? (234 CMR 9.03)
 Non-disciplinary actions:
– Dismissal with Prejudice – where the conduct complained of does
not breach a rule, or there is no jurisdiction (e.g. a billing dispute)
– Dismissal With an Advisory Letter – an “official written notice
retained in the Board’s files delineating the Board’s concerns with
the licensee’s professional practice.” Not formal discipline.
– Stayed Probation – an agreement to practice under certain terms
and conditions. Not formal discipline.
– Generally not published

34. What Do I Do if I Hear From the Board?
What can they do to me? (continued)
 Disciplinary Actions
– Reprimand
– Probation
– Censure (a “severe reprimand”)
– Voluntary Surrender – licensee agrees to surrender license
– Suspension
– Stayed Suspension - (suspension does not activate pending
compliance with agreed terms)
– Revocation
– These are published, will show up in a Google search

35. What Do I Do if I Hear From the Board?
As a practical matter …
 Most of the 2015 Disciplinary Decisions were agreements for probation or
reprimand
– Two dentists fought to a hearing and got the same probation they would
likely have received on agreement
– One voluntary suspension based on a suspension in in Conn
– One “non-disciplinary agreement not to practice.” (No facts given but the
dentist agreed to retire)
– One agreement to surrender – dentist was sentenced to prison on child
pornography charge
– One revocation for a hygienist who ignored the proceedings
– One six-month suspension (dentist violated numerous rules)
– One indefinite suspension (dentist abused prescription authority; seemed
to be writing prescriptions for himself/his wife)

36. What Do I Do if I Hear From the Board?
If you get a complaint …
– Talk to your malpractice insurer
– Talk to a lawyer
– Don’t ignore it!
– Even if you think the complaint is nonsense…

37. The Rest of the Government
 MassHealth
– They can demand an
“overpayment” for payments in
violations of its own rules
– Often work in conjunction with
the State Auditor
– MassHealth has its own rules,
independent of the Board’s
– MassHealth has creative
interpretations of its rules

38. The Rest of the Government.
 Other potential problems:
– False Claims Act and whistleblower
cases – potentially serious financial
penalties
– Anti-Kickback Statute
– Possible criminal liability
– The Upshot: Be careful – and not
too creative – in your billing
– Document, Document, Document

39. Questions?

40. Dental Practice Experience
Carla M. Moynihan
Real Estate Law
617.646.2043
cmmoynihan@sherin.com
Brian J. MacDonough
Employment Law
617.646.2286
bjmacdonough@sherin.com
Thomas W. Kirchofer
Litigation
617.646.2029
twkirchofer@sherin.com
Our dental practice team combines our expertise in real estate, employment, and litigation to
provide a interdisciplinary approach to your legal needs. Our experience includes representing solo
dentists and doctors to larger, multi-office practices.
Real Estate and Corporate
Our real estate team can provide advice related to all aspects of a commercial real estate transaction,
including:
• Formation of corporate entities
• Negotiating and drafting letters of intent
• Office leases
• Purchase and sale agreements
• Financing terms
• Practice acquisition agreements
Employment
Our employment lawyers are able to provide guidance for professionals and small business owners
including:
While we take a preventive approach to employment issues, should disputes rise, we have expe-
rience representing both employers and employees before the MCAD and EEOC and in state and
federal courts.
Litigation
Our litigation team assists dentists in managing their risk to avoid litigation, and represents clients
when disputes arise. This can include matters before state and federal courts, and state and federal
administrative agencies, including the Board of Registration.
• Drafting employee handbooks
• Wage and hour issues
• Wrongful termination
• Discrimination
• Retaliation
• Contract negotiation and enforcement
Our Dental Practice Team

41. About Sherin and Lodgen LLP
An Experienced Team
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are Fellows of the American College of Trial
Lawyers and one is a Fellow of the American
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