• OCR Frequently Asked Questions: Is a Covered Entity Required to Prevent Any Incidental Use or Disclosure of Protected Health Information?
www.hhs.gov/ocr/privacy/hipaa/faq/incidential_uses_and_disclosures/206.html
• The ADA Practical Guide to HIPAA Compliance: Privacy and Security Manual
adacatalog.org or 1.800.947.4746
29. Will Other Cutting Edge Dental Issues Affect Office Design?
A number of other laws and considerations affecting dental practice have the potential to significantly impact dental office design.
Ergonomics
If and when a federal ergonomics standard is passed, it may dramatically affect dental office design. It may be good risk management to proactively address ergonomics issues in your office design even though there are no current federal legal requirements. Considerations may include adequacy of space, placement of equipment, and four-handed dentistry.
Waste Management
Concerns about waste management may also affect office design. Some waste products that have come under regulatory scrutiny include X-ray fixer and developer; mercury/amalgam in wastewater; solid medical waste (including sharps); and various pharmaceuticals and other chemical substances classified as hazardous or controlled medical wastes. For example, space must be provided for segregating regulated medical waste from other solid waste. Thought should be given to how you will remove mercury/amalgam from the office wastewater. For example, do you have adequate space to install and maintain an amalgam separator. Also, convenient access to plumbing and clean-out points for plumbing can be designed into new construction.
Regulated Drugs
Space design should consider the need to maintain certain classes of drugs in a secure location. Other materials and equipment may also be of value and require a secure storage location. Properly locked cabinets should be included in office design.
Related References and Resources
• Question 70: What if I Suspect an Employee or Co-Worker Is Abusing or Taking Drugs from the Dental Office?
• ADA Statement on Best Management Practices for Amalgam Waste (includes a Practical Guide to Integrating BMPs Into Your Practice) ADA.org/en/member-center/oral-health-topics/amalgam-waste-best-management
30. Is Video Surveillance Permitted in the Dental Office?
A number of complex federal and state laws regulate workplace surveillance, and a variety of factors may influence the legal risks associated with surveillance activities. For example, before a dental practice implements a surveillance program, it should consider factors such as:
• Where will the camera(s) be installed (e.g., building exterior, reception area, business office, operatory)? Can the camera(s) be installed so as to eliminate the possibility of capturing private areas such as restrooms and changing rooms?
• 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
