Will This Be a Game Changer?
Why Should This Be of Interest to Ontario Dentists?When it comes to fee splitting and responsibility for patients’ charts and health information, Ontario’s Regulated Health Professions Act, 1991; Dentistry Act, 1991, and Personal Health Information Protection Act, 2004, have similar provisions to Alberta’s Health Professions Act, 2000 and Health Information Act, 2000. The exception is that, in Ontario, dentists are permitted to fee-split with members of the College of Dental Hygienists of Ontario who engage in the practice of dental hygiene within the dentist’s practice. Further, the corporation involved in the Alberta decision also owns multiple practices in Ontario, as well as other provinces. Thus, any member of the profession who is a potential practice vendor should pay attention to this decision.
It is not known if this corporation is using similar contractual arrangements outside of Alberta. However, in light of the Alberta decision, it would be prudent for sellers, as part of the pre-sale due diligence, to determine the post-sale contractual provisions that are part of the deal — especially with respect to ongoing liability post-sale. Some of the questions that might be considered are:
• What are the post-sale arrangements for chart custody?
• What are the post-sale arrangements for fee payment and fee sharing?
• Do those arrangements comply with my licensing body’s regulations and all associated legislation?
• What is my exposure and what are my responsibilities post-sale if there are legal/regulatory or
ConclusionsAs mentioned at the beginning of this article, we are in a very strong sellers’ market and this means that not only are there higher valuations for those selling a dental practice, it also means that there are more choices and options regarding who they can sell to. And now, in addition to the informed decisions that a vendor should make about the sale, including financial/monetary factors, lifestyle impacts and the terms of staying on after the sale, there is also the need to carefully examine whether there exists the possibility of future problems with the licensing body regarding the legal regulations that govern how we practice. Finally, as previously noted, the ADA&C finding is subject to possible appeal, and the cautionary guidance to Ontario dentists provided here, reflects the current state of the legal landscape with reference to Alberta, even as that landscape may change on appeal.
AcknowledgementHarold Feder would like to thank associate lawyer, Tori van Veen, and articling student, Dahlia Aeta, for their assistance in the research and drafting of this article.
Reference1. Alberta Dental Association and College Hearing Tribunal Decision; in Accordance with Bylaw 20(7) of the Alberta Dental Association and College. Available at: http://www.dentalhealthalberta.ca/index/Sites-Management/FileDownload/DataDownload/143497/A-Meikle-2018-HearingDecision/pdf/1/1033. Accessed on December 10, 2018. Dr. Bernard Dolansky is Past President of the ODA, the Ottawa Dental Society, the CDA, and the Dentistry Canada Fund. He is currently a partner at Tier Three Brokerage Ltd., and assists dentists with transition planning, practice purchase and sale, evaluations, associateships, retirement planning and partnership arrangements. You may reach him at email@example.com or 613-794-1977. Harold Feder is a Partner with Brazeau Seller Law and was called to the Bar of Ontario, 1990. He specializes in tax and estate planning and corporate/commercial law, with a particular emphasis on providing tax-effective structures for wealth maximization and providing legal solutions to dental and other professionals. Legal services for dental professionals and their practices include Incorporations, practice sales, leasing and the preparation of partnership, cost share, shareholders’ and associate agreements
Written by: Bernard Dolansky and Harold Feder