By The Dentists Insurance Company’s risk management staff with contributions from Washington-based attorney John C. Versnel, III 

Some correspondence is more welcome than others. For dental practice owners, correspondence from a local or state public health department is about as welcome as an audit notice from the IRS. If you are faced with an investigation by Washington’s Department of Health Dental Quality Assurance Commission (DQAC), some anxiety can be lessened by understanding how the Department functions and best practices for your response.

State and county public health departments exist to prevent the spread of illness, promote healthy communities, and protect those communities through the implementation and enforcement of policies. The DQAC is the arm of the state department of health that specifically oversees dentistry. It protects both the public and the integrity of the profession by regulating the competency and quality of dental healthcare providers.

Dentists should be aware that DQAC is not an advocate for, or defender of, the individual dentist. The relationship is not necessarily adversarial, but neither is it friendly.

An investigation by the DQAC can be the result of a patient complaint, a complaint from a former disgruntled employee or another practitioner, or as the result of a malpractice settlement (which insurers are required to report). Most complaints are investigated. Investigation of a complaint, in and of itself, does not automatically mean there is merit to the complaint.

The most recent statistics from the Washington Department of Health (Biennium 2017- 2019) report the DQAC conducted 1,080 investigations over the two years studied. Over the same period of time, an average of 6,684 dentists practiced in the state of Washington, which equates to 16% of practicing dentists being investigated by DQAC. Of those, 607 investigations were closed without any action, 133 were closed with some action taken and the remaining open investigations carried over to 2020.

In the event you are contacted by a representative from DQAC, the following actions are recommended.

• Immediately contact your insurance company, which will typically arrange for appropriate representation by an attorney.
• Cooperate with the investigation by acting through your attorney.
• Work with your attorney to provide any materials that may be requested during the investigative process.

The first notice a dentist will receive alerting them to an investigation is a “whistleblower” letter, which simply states an investigation is being conducted and that the identity of the complainant, to the extent it can be released under the whistleblower statute, will be provided at a later date. Upon receipt of a whistleblower letter, no action is required, and no action should be taken other than contacting your insurer.

Interestingly, the whistleblower letter invites the dentist to provide a response to the allegations. The whistleblower letter does not identify the patient in question or the nature of the issue. Therefore, responding based on speculation as to the issue or patient complaint is not recommended. Responding to the letter based upon insufficient information or assumptions may result in a separate investigation triggered because of new concerns raised by the response.

The next contact from the DQAC will be a letter of cooperation. In the letter of cooperation, the investigator will specifically set forth the nature of the complaint and the information you are requested to provide for the continued investigation. You will have three weeks to respond. An extension can be obtained, for a good cause. The definition of “good cause” is somewhat subjective; dentists are generally given at least an additional week even if the reason for the extension is simply stated as a lack of time. Failure to respond in a timely fashion to the DQAC’s inquiries can result in a fine of $100 per day, up to $5,000.

For the most part, letters of cooperation are sent through the mail and/or emailed. However, in some circumstances the investigator may show up at your office asking to interview you and/or your staff, after which the letter of cooperation is produced. In such situations, it’s important to understand that despite being under an obligation to cooperate with the investigation, you are not required to subject yourself or your staff to an investigator’s interview. You are entitled to retain the assistance of counsel, as specifically set forth in the letter of cooperation.

In the rare event that your first notification of an investigation is by an investigator visiting your office, you should first emphasize your willingness to cooperate with the investigation. Next, ask for the letter of cooperation and inform the investigator you are exercising your right to retain counsel. At that point, it is acceptable to politely ask the investigator to leave.

Another area of authority that the DQAC can exercise is the ability to conduct infection control inspections, unannounced and without a letter of cooperation. However, the inspection is limited specifically to infection control. Allow the investigator to conduct an infection control inspection but do not respond to any questions outside of infection control issues.

Once your response to a letter of cooperation has been submitted, be patient. In theory, the investigation can be completed within 170 days. However, once the investigation is completed it is sent to a Reviewing Commission Member (a member of the DQAC) who will, in association with his/her panel (a subset of the DQAC members), decide the next steps. Unfortunately, this process can take several more months — waiting a year between the first contact from the Department of Health and the final determination is not unusual. The length of time an investigation takes does not correlate to the severity of the issues or the likelihood of discipline being imposed.

If you are contacted by the DQAC, immediately contact your carrier, review your options and rights related to board investigations, cooperate with the investigation, work with your attorney, and remember to be patient. Above all else, do not believe that ignoring an inquiry from the DQAC will result in the matter quietly going away. This will only increase the interest of the DQAC and the likelihood that further investigative efforts will ensue. While it may be tempting to view the DQAC as an adversary, remember that their unbiased oversight of all dentists is an important means of maintaining the high standards and integrity of the dental profession.

TDIC’s Risk Management Advice Line is a benefit to policyholder and dental association members in the states it serves. Learn more at www.tdicinsurance.com/rm or call
(800) 733-0633.

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This article originally appeared in the Spring 2022 Issue of WSDA News. 

TDIC is a WSDA Endorsed Company.