Can Dental Ratings be Defamatory?
August 23, 2022
Many health and dental plans are adopting rating systems for participating practitioners. What recourse is available to practitioners who believe their rating is negatively impacting their practice? Daniel Schulte discusses this in the latest edition of The Journal of The Michigan Dental Association (August 2022).
Question: I recently learned that a dental plan that I participate with has developed a rating system. This system assigns a rating (such as a letter grade from A to D) to each of its network dentists. It plans to begin publishing these ratings to all patients enrolled in its plan and the plans it administers. I have ben provided no specific information regarding what information was used to determine my rating or how it was calculated. Nor have I been given the opportunity to contest the method used to determine my rating was based on. If I believe my rating is false and is damaging my reputation and costing me patients, what legal recourse do I have against this dental plan?
Answer: Health and dental plans are now more frequently adopting these types of rating systems. I believe the trend began with “pay for performance” reimbursement models. Those models apply to MDs and DOs in the health care market. The idea is to create financial incentives for care that is managed effectively/efficiently and to remove any incentive to provide some services. These ratings have a purpose internally when used by a health plan to separate those who are effective/efficient from those that are less so.
Why your dental plan would broadcast ratings to patients is a question only the dental plan can answer. When you agree to participate you do so (among other reasons) based on the promise that the dental plan is going to direct those patients enrolled in its plan to you. I can only imagine that dentists with a C or D rating are going to see fewer new patients than those with A or B ratings, and that C- or D-rated dentist may even lose some patients. This is not what you bargained for when you decided to participate with this dental plan.
Currently, there is not statutory law that would make the dental plan’s publication of a false, misleading, and otherwise defamatory rating illegal, or that would give you a right to know what the rating is based on how it was determined. The dental plan’s rating is unlike a credit score, which is governed by the federal Fair Credit Reporting Act. That law regulates credit reporting agencies, requiring them to gather information in certain ways, disclose to us how our credit ratings are computed, provide us with a free credit report, an opportunity to contest/request removal of adverse information, etc. But in the absence of such a law, your dental plan is free to do what it likes, subject only to state law defamation claims.
Read the complete Q&A in the Journal of the Michigan Dental Association on page 22.
About the author:
Daniel J. Schulte has more than 25 years of experience helping clients solve tough problems and capitalize on opportunities that require a blend of business and legal expertise. His practice focuses on addressing the legal, business, licensing, and regulatory challenges of health care professionals, organizations, and facilities. Dan understands how legal issues impact business objectives and, as a result, offers his clients practical, results-oriented advice. He is a Certified Public Accountant, former managing partner and current executive committee member of the firm. Dan also serves as co-chair of the firm’s Health Care Practice Group.
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