My thanks to Dr. Stevenson for his comments and references. He is correct on both the typographical error and the reference to Section 4.D instead of 4.E. The author and council staff received a copy of the final draft and take responsibility for both errors.
I believe Advisory Opinion 5.F.4. relates to commercial and nonprofit referral services. The last sentence states, "While the particular facts and circumstances relating to an individual commercial referral service will vary, the council believes that the aspects outlined above for commercial referral services violate the Code in that it constitutes advertising which is false or misleading in a material respect and violates the prohibitions in the Code against fee splitting."
The question submitted related to incentives offered for referrals. A form of "fee splitting" may occur in cases in which a gratuity is expected following a referral. Section 4.E. is clear on this issue: "Dentists shall not accept or tender ‘rebates’ or ‘split fees.’ " The Ethical Moment answer was unequivocal on this issue.
Whether failure to disclose financial arrangements constitutes lack of informed consent is a matter of state law. The ADA is not aware of any dental rules or case law that has defined such conduct as failure to obtain informed consent. We would appreciate any information Dr. Stevenson might have on this subject. Our understanding is that paid referral arrangements between practitioners usually are addressed by way of the dental practice act, rules, regulations or case law pertaining to fee splitting or anti-kickback prohibitions involving professionals.
I agree that fee splitting is a serious matter. The protocol for the "Ethical Moment" and JADA space limitations do not allow for a more detailed discussion. We appreciate Dr. Stevenson’s comments and his view that a more in-depth discussion might be desirable.
