CASH OR CREDIT…LANDLORDS BEWARE!

Because they possess a treasure trove of personal, financial, and health information about hundreds or thousands of patients, physicians, dentists, and other healthcare practices and facilities are the frequent targets of hackers and cyberattacks. That threat has not diminished, and in a May 6, 2024 notice to the American Dental Association (ADA) and the American Association of Oral and Maxillofacial Surgeons (AAOMS), the Federal Bureau of Investigation (FBI) warned of a credible, active cybersecurity threat to the practices of oral and maxillofacial surgeons. While this current threat is focused on oral and maxillofacial surgeons, the FBI has expressed concern that the practices of general dentists and other specialists could also eventually be targeted. According to the ADA, the FBI suspects that the group behind the cyberattacks may be shifting tactics to oral and maxillofacial surgery practices after targeting plastic surgeons last year. Accordingly, all dental practices and practitioners need to be on high alert against such attacks, which focus on “social engineering scams” — such as phishing (email), SMSishing (through text or instant messaging apps), and vishing (using phone calls and voicemail) — to gain access to sensitive personal data such as electronic protected health information. In particular, the FBI warns of “spear phishing,” which refers to a phishing email that appears to be from a trusted contact. Through these scams, the FBI says, “threat actors try to convince people to reveal sensitive information, or to click on a link, open an attachment or visit a website that causes malware to be deployed. This malware can lead to ransomware, which blocks system and/or file access until money is paid.” The FBI provided an example of such a scam: A threat actor poses as a new patient or says they want to become a patient at the practice to obtain new patient forms online. Once the forms are received, the threat actor will then contact the practice to report they are having trouble submitting them online and ask if they can scan the forms and email them instead. The threat actor then emails the “forms” as an attachment. When the attachment is opened, malware is deployed through a phishing scheme. The FBI requests dental practices that experience any fraudulent or suspicious activities to report them to the FBI Internet Crime Complaint Center at ic3.gov. Precautions Dental Practices Can Take To Protect Against Phishing and Other Cyberattacks The Cybersecurity &; Infrastructure Security Agency (CISA) recommends four vital ways to protect your practice from cyberthreats: Teach your team to recognize and avoid phishing Require strong passwords Require multi-factor authentication Update all business software Additionally, practices should have policies and protocols in place to immediately respond to and remediate any data breaches that result from a phishing scam or other cyberattack. The following resources are also available to support dental professionals: A CISA.gov toolkit aids healthcare practices in building cybersecurity foundations and implementing more advanced, complex tools to stay secure and ahead of current threats. The U.S. Department of Health and Human Services’ Knowledge on Demand resource offers five free cybersecurity trainings that align with the top five threats named in HHS’ Health Industry Cybersecurity Practices. HHS also provides information on how the HIPAA security rule can help defend against cyberattacks. The Office of the National Coordinator for Health Information Technology’s Security Risk Assessment Tool, a resource designed to help medium and small providers conduct a security risk assessment as required by the Health Insurance Portability and Accountability Act. The U.S. Department of Health and Human Services Office of Information Security and Health Sector Cybersecurity Coordination Center’s “Artificial Intelligence, Cybersecurity and the Health Sector” guide shares how healthcare entities help protect against AI-enhanced cyberthreats. Additional resources can be found at ADA.org/riskmanagement Call Grogan, Hesse & Uditsky Today At Grogan, Hesse & Uditsky, P.C., we focus a substantial part of our practice on providing exceptional legal services for dentists and dental practices, as well as orthodontists, periodontists, endodontists, pediatric dentists, and oral surgeons. We bring unique insights and deep commitment to protecting the interests of dental professionals and their practices and welcome the opportunity to work with you. If you have questions or concerns about your practice’s compliance with HIPAA, please call us at (630) 833-5533 or contact us online to arrange for your free initial consultation. Jordan Uditsky, an accomplished businessman and seasoned attorney, combines his experience as a legal counselor and successful entrepreneur to advise dentists and other business owners in the Chicago area. Jordan grew up in a dental family, with his father, grandfather, and sister each owning their own dental practices, and this blend of legal, business, and personal experience provides Jordan with unique insight into his clients’ needs, concerns, and goals. 

Like owners of other businesses, dental practice owners often hire staff members as independent contractors rather than as employees. They do so to keep expenses down, minimize tax obligations, and reduce time spent worrying about personnel and payroll matters such as overtime pay, sick leave, insurance, and other employment law issues. Ultimately, however, whether an associate dentist, hygienist, or other team member is appropriately classified as an employee or contractor isn’t up to the practice owner. It is up to the law and the rules promulgated by the U.S. Department of Labor (DOL). And under a DOL Final Rule that became effective on March 11, 2024, more dental workers are now likely to be considered employees instead of contractors, no matter what label a practice owner uses for them. The Final Rule, which was initially published in January 2024, revises the DOL’s analysis for determining employee or independent contractor classification under the Fair Labor Standards Act (FLSA). Specifically, the new Final Rule rescinds a rule promulgated under the previous administration which identified five “economic reality factors” to be used in determining whether a worker was an employee or independent contractor. Under the prior rule, two of the five factors— “the nature and degree of control over the work and the workers opportunity for profit or loss” were designated as “core factors” that were to carry more weight in the analysis. Six-Factor “Economic Reality Test” To Determine Proper Classification That rule was generally seen as more employer-friendly in that it made it easier to classify a worker as a contractor. Under the new Final Rule, the “core factors” mentioned above are no longer part of the analysis. Instead, the new rule uses a “totality-of-the-circumstances” approach and an “economic reality test” that looks at the economic reality of the worker’s activities and the nature of the working relationship with the employer. The new rule sets forth six factors to be used in determining whether the “economic realities of the working relationship” reveal a worker to be economically dependent on the employer – in which case they would be likely considered an employee – or whether the worker is in business for themselves such that they are an independent contractor. These factors, described in the economic reality test of the final rule, are: opportunity for profit or loss depending on managerial skill; investments by the worker and the potential employer; degree of permanence of the work relationship; nature and degree of control; extent to which the work performed is an integral part of the potential employer’s business; and skill and initiative. No one factor or subset of factors determines if a worker is an employee or independent contractor. Rather, all the circumstances of the relationship should be examined. The weight given to each factor may depend on the facts and circumstances of the particular relationship. Also, additional factors may be relevant if they in some way indicate if the worker is in business for themself as opposed to being economically dependent on the employer for work. In the case of associate dentists, these factors in the abstract would likely make most such practitioners employees rather than contractors. As noted, however, the ultimate determination as to the proper classification comes down to the specific circumstances of each employment relationship. In conjunction with the publication of the Final Rule, the DOL has issued guidance for employers through Frequently Asked Questions and a Small Entity Compliance Guide. These resources provide important insights for dental practice owners as they evaluate the status of their current employment relationships and make any needed adjustments to comport with the new rule’s classification standards. However, given the fact-specific nature of the classification analysis established by the rule, practice owners are strongly advised to consult with experienced counsel to ensure compliance. The financial cost of non-compliance to the practice can be substantial, but it can also cost owners personally, as they can be held liable individually for any intentional misclassification. To avoid such consequences, dental practice owners should discuss any questions or concerns with an experienced employment and dental practice attorney. At Grogan, Hesse & Uditsky, P.C., we focus a substantial part of our practice on providing exceptional legal services for dentists and dental practices, as well as orthodontists, periodontists, endodontists, pediatric dentists, and oral surgeons. We bring unique insights and deep commitment to protecting the interests of dental professionals and their practices and welcome the opportunity to work with you. Please call us at (630) 833-5533 or contact us online to arrange for your free initial consultation. Jordan Uditsky, an accomplished businessman and seasoned attorney, combines his experience as a legal counselor and successful entrepreneur to advise dentists and other business owners in the Chicago area. Jordan grew up in a dental family, with his father, grandfather, and sister each owning their own dental practices, and this blend of legal, business, and personal experience provides Jordan with unique insight into his clients’ needs, concerns, and goals.