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Mayday for Identity Theft Provisions 2009 

By Darrell K. Pruitt; DDS

On October 22, 2008, the FTC announced that it would delay the enforcement of the Red Flags Rule for healthcare providers for six months – until May 1, 2009.  A handful of attentive dentists, as well as ADA Chief Legal Counsel, Tamara Kempf, released a sigh of relief.  Ms. Kempf immediately went to work to persuade the FTC to delay enforcement “indefinitely.”

The FTC Delay

Four days later, Kempf caught the mood of the few who were paying attention in her quote for an article on DentalCompare.com: 

“We are very pleased that the Federal Trade Commission has postponed for six months its implementation of the ‘Red Flags Rules.’”

http://www.dentalcompare.com/news.asp?newsid=250078

The DentalCompare article continues:

“If the FTC persists in its position that dentists are covered by the rule as creditors, the ADA will make available a sample compliance plan or program well in advance of the new enforcement date. Dentists will have sufficient time to consult with their personal attorneys and to put an appropriate identity theft prevention program into place, according to the ADA’s Legal Division.” 

The ADA Legal Division  

Did the ADA’s Legal Division follow through with its promise?  If information about the Red Flags Rule is posted on the ADA News Online Website early tomorrow morning, is a 24 day warning considered by the ADA to be “well in advance”? (Emphasis mine) As reassuring as Kempf’s words sounded five months ago, it can be argued that the ADA’s intentions were misrepresented to DentalCompare.  I checked the ADA Online Website and found nothing at all about preparation for the Red Flags Rule – at least not yet.

http://www.ada.org/prof/resources/pubs/adanews/index.asp

ADA Archives 

When I searched the ADA archives for “Red Flags Rule,” I was provided seven links to the topic, but none included “a sample compliance plan or a program.”  Three of the links are irrelevant, three are to articles about the delay of the FTC enforcement, and one is a link to a hopeful letter dated November 24, 2008 and addressed to William E. Kovacic, Chairman of the Federal Trade Commission.  In other words, I found nothing that will help dentists become FTC compliant well ahead of time. 

HIPAA 

If the ADA’s help in preparing members for the 1996 HIPAA Rule is any indication of the help members can expect with Red Flags Rule, it will take the ADA at least 13 years to start on the Red Flags.  The leaders of the otherwise conservative ADA seem to have bet a huge chunk of membership trust that Kempf and the Legal Affairs department would succeed in delaying Red Flags enforcement indefinitely, and that the Department of Dental Informatics would not have to admit that contrary to what they led members to believe, computers in dental offices are rapidly becoming too dangerous and too expensive for the profession. For many dentists, pegboards, carbon paper and ledger cards are looking better and better. You can forget about paperless practices. What happened, ADA?

The groveling November 24 letter to the FTC chairman that was signed by Kempf and cc’d to ADA President Dr. Johns S. Findley and President-elect Dr. Ronald L. Tankersley, officially begs for forgiveness and appeals for bureaucratic mercy to allow dentists to be excluded from becoming Red Flags-covered entities.

http://www.ada.org/prof/advocacy/let_081124_redflags.pdf

Since the fines for non-compliance of both HIPAA and the Red Flags Rule are obscene, and since the leaders of the ADA continue to fail to inform members what they should do to prepare for unannounced inspections from either HHS or the FTC, I will once again do the Department of Dental Informatics job for them, and let readers in on the secret.

An Economic Threat

If you wish to continue to accept assignment from insurance companies, and/or otherwise extend credit to your patients, the FTC recently posted a helpful pdf document titled “Fighting Fraud with the Red Flags Rule – A How to Guide for Business.”

http://www.ftc.gov/bcp/edu/pubs/business/idtheft/bus23.pdf

Dentists have become the nation’s unpaid fraud inspectors.  And if a dentist’s practice is computerized, the more will be expected, or rather, demanded of the dentist, by law.

Here is a brief description of dentists’ Red Flags obligations lifted from the FTC document:

An Overview

The Red Flags Rule sets out how certain businesses and organizations must develop, implement, and administer their Identity Theft Prevention Programs. Your Program must include four basic elements, which together create a framework to address the threat of identity theft:

First: Your Program must include reasonable policies and procedures to identify the “red flags” of identity theft you may run across in the day-to-day operation of your business. Red flags are suspicious patterns or practices, or specific activities that indicate the possibility of identity theft.  For example, if a customer has to provide some form of identification to open an account with your company, an ID that looks like it might be fake would be a “red flag” for your business.

Second: Your Program must be designed to detect the red flags you’ve identified. For example, if you’ve identified fake IDs as a red flag, you must have procedures in place to detect possible fake, forged, or altered identification.

Third: Your Program must spell out appropriate actions you’ll take when you detect red flags.

Fourth: Because identity theft is an ever-changing threat, you must address how you will re-evaluate your Program periodically to reflect new risks from this crime.

Note: More “red-flag” information may be obtained from the 2 volume, 1,200 pages, premium print guide: Healthcare Organizations [Financial Management Strategies].

www.HealthcareFinancials.com

Assessment

Since my business office still uses the pegboard, and no patients’ identifiers are on any computer, my official Red Flags policy is simple: 

“Staff; if you notice anything unusual in relation to our patients’ accounts; or if you are handed an unusual-looking drivers license, notify me immediately”. 

-The Management

My official notice will be fastened with thumb tacks to my wall of safety posters by May 1, 2008, and I will be in full compliance with not only HIPAA, but the Red Flags Rule as well. If the government continues its reckless, heavy-handed, one-size-fits-all laws, it won’t be long before I’ll be able to further undercut the fees charged by all computerized dental offices, and still make more profit. I say bring out the Department of Agriculture. 

Conclusion

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Filed under: Alerts Sign-Up, Book Reviews, Breaking News, Career Development, Health Law & Policy, Healthcare Finance, iMBA, Inc., Information Technology, Managed Care, Practice Management, Professional Liability, Risk Management | Tagged: accounting ledger cards, ADA, AMA, American Dental Association, carbon paper, DDI, DentalCompare.com, Department of Dental Informatics, Dr. Ronald L. Tankersley, fake IDs, FTC, HIPAA, HSS, ID, identity theft prevention, Johns S. Findley, pegboards, red flag rules, Tamara Kempf, William E. Kovacic | 32 Comments »