• What is the purpose of the surveillance?
• What information is intended to be captured (and likely to be captured)?
• Will the equipment capture only video, or both audio and video?
• Will the dental practice post a sign alerting the public that surveillance is under way?
• Will the dental practice notify employees of the surveillance program, and have policies and procedures in place concerning the program and the resulting surveillance records?
• Will patient information be recorded, and, if so, how will it be stored (and for how long) and who will have access?
• Will the equipment capture information about patients’ dental procedures?
• Will the equipment capture employee information, and might it be used in connection with employment matters such as discipline, promotions, or terminations?
• How might the dental practice act on information obtained through monitoring?
Audio
Surveillance equipment that captures audio may trigger complex federal and state laws, such as laws on wiretapping, eavesdropping, and stored communications. Telephonic monitoring, such as programs to evaluate employees’ handling of patient communications, involves additional compliance issues. For example, applicable law may require the dental practice to notify both parties to the call (e.g., the employee and the patient) that the call is being monitored. A qualified attorney can provide information about applicable laws and legal risks, and whether a dental practice might take certain measures to comply with applicable laws and to minimize legal risk.
Monitoring Employees
State law may determine whether, and if so how, an employer is permitted to use video surveillance or other methods to monitor employees. For example, state law may require an employer to have policies in place concerning workplace monitoring, and to provide notice to employees. Even if the laws that apply to an appropriate workplace surveillance program do not require employee notification, providing notice to employees can help an employer defend against potential claim that surveillance was improper.
Security and Safety
A dental practice may wish to use video equipment for security and safety purposes, such as monitoring the building exterior or in public areas such as lobbies and elevators. However, a dental practice that implements a surveillance program for such purposes should also consider how the surveillance records will be reviewed and the steps that the dental practice will take if the records reveal an incident that could compromise safety or security.
Privacy
If patient information such as full face photos or other identifiers is captured by surveillance equipment, the HIPAA Privacy Rule may require appropriate administrative, technical and physical safeguards to protect the privacy of the information. A covered dental practice might meet this obligation through encryption or by otherwise restricting access to the surveillance records. If the surveillance is managed by a vendor, the vendor may meet the HIPPA definition of a “business associate” and may need to sign a compliant business associate agreement with the dental practice. HIPAA and applicable state law should be considered when deciding how to manage retention, access, and disposal of surveillance records.
State employment laws and privacy laws may also govern the surveillance of employees as well as patients and the public. A qualified attorney could help a dental practice determine whether a surveillance program complies with applicable federal and state law.
Clearly, monitoring equipment that captures information or behavior that is deemed private, such as employee break rooms, would pose a much higher legal risks. Monitoring that captures activity in restrooms and similar private areas could result in criminal prosecution as well as lawsuits for damages.
Discoverability
Keep in mind that surveillance records may be discoverable in the event of a lawsuit, such as a malpractice claim or a slip-and-fall. For example, records of an incident that results in an alleged injury to a patient, employee or other individual may need to be retained and turned over to the other side in the event of a lawsuit.
31. Should I Rely on Design Professionals, and What Should Their Contracts Include?
Consulting with design professionals is a good idea if warranted by the scope of your project. As any seasoned dentist knows, the days of dentistry being relatively unregulated have long passed. The importance of keeping up with regulatory developments cannot be understated. These developments will affect not only how you practice, but also the design elements of your practice environment. Relying on experts “in the know” about legal requirements and shaping your contracts with them to protect you and assure compliance is the best way for you to proactively address this important aspect of dental office design.
The interplay of federal, state, and local laws varies from city to city. A prudent dentist will want to consult and rely upon competent professionals for advice. Your lawyer can help you understand what is required, and draft contracts that obligate your architect and contractor to provide services and work product that meets the requirements of all applicable laws. In the best scenario for a dentist, these contracts will contain insurance requirements and indemnification provisions to help protect you if your design team fails to keep you “legal.”
32. Do My Exam Chairs Need to Be Accessible to Patients With Disabilities?
As this publication goes to press, the Architectural and Transportation Barriers Compliance Board, a federal agency that develops accessibility guidelines and standards, is developing accessibility standards for medical diagnostic equipment under the Affordable Care Act. Thus, new standards may eventually apply to equipment such as dental exam chairs to help facilitate the provision of care to individuals with disabilities.
Currently, federal statutes such as Title III of the Americans with Disabilities Act, which applies to “public accommodations” such as dental practices, and applicable state and local disabilities laws, provide requirements for accommodating individuals with disabilities and the removal of barriers to access for disabled individuals. State and local disabilities laws may be more stringent than federal laws.
Related References and Resources
• Question 21: What Does the American with Disabilities Act Require for Office Design
• Question 50: Does My Dental Practice Website Need to Be Accessible to People With Disabilities, Such As Someone Who Is Blind or Hard of Hearing?
• Question 164: Can I Claim the Americans With Disabilities Act (AwDA) Tax Credit for Purchases of Intraoral Cameras, Panorex Machines, New Chairs, Etc.?
• Americans with Disabilities Act Access to Medical Care for Individuals with Mobility Disabilities www.ada.gov/medcare_mobility_ta/medcare_ta.htm
• The ADA Practical Guide to Dental Office Design
adacatalog.org or 800.947.4746
33. Should I Have an Automated External Defibrillator (AED) in My Dental Office? If So, Where? What Legal Concerns Are There