Mail Order Orthodontics – Article by Joel Rosen in Lawyers Journal

January 1st, 2018

This article appeared in Lawyers Journal in December 2017.  The comparison of MassHealth’s reimbursement rates with those of online providers is no longer accurate, as MassHealth changed its reimbursement regime after the article was submitted, but the point is still valid.  The online providers charge a comparable rate to some licensed orthodontists. 

To read the original article, see:https://www.massbar.org/publications/lawyers-journal/lawyers-journal-article/lawyers-journal-2017-november-december/mail-order-orthodontics.

 

 

Lawyers Journal

Mail Order Orthodontics

Issue November/December • 2017  • By Joel Rosen

 

Want to fix your teeth for a fraction of what you’d pay an orthodontist? How is that possible? By not paying an orthodontist.

Online providers will remotely guide you to take your own impressions and put on your own “aligners.” For $7.98, Amazon.com will even sell you a box of elastic “gap bands” that are supposed to pull teeth together. One of the biggest players is Smile Direct Club (SDC), a Tennessee company that provides services in Massachusetts.

The Board of Registration in Dentistry has received two complaints against SDC for the unlicensed practice of dentistry. The American Association of Orthodontists filed the first one in April. I filed the second one in August on behalf of the Medicaid Orthodontists of Massachusetts Association.

How SDC Operates

The SDC website asks you to enter your zip code. If you can successfully accomplish that task, you get a message that says, “Congratulations! You’re a great candidate.” If you want a more detailed evaluation, you can take a “free 30-second smile assessment.” You look at six drawings and choose the one you think looks like your teeth.

There are no wrong answers. Everyone who orders one gets “an at-home impression kit.” If you are not sure you can take accurate impressions at home, you can “book a scan” at the “Smile Shop” in Boston. Eventually, you receive a series of “invisible aligners,” which you insert yourself. You do not get X-rays and never see an orthodontist.

I called SDC and spoke with a guy named Andy. “Is there anything I can do to make you smile today?” he asked.

I wanted to know whether I could see an orthodontist at the Smile Shop. “We never have an orthodontist there,” he said. “We have a dental professional.”

“Is that someone with a license?”

“We have dental technicians. They are trained to use the equipment.”

“Dental technician” is not a thing. You can be a dental assistant or hygienist, but there is no license in Massachusetts for a “dental technician.”

SDC charges $95 for an impression kit, $1,850 for aligners, and $99 for a retainer. This is on the lower end of what orthodontia costs but not the bargain it seems. MassHealth pays $1,200 for banding, $90 per adjustment visit (after the first three months), and $95 for retention. A MassHealth patient who saw an orthodontist once per quarter for two years would generate a fee of $1,925. For this hypothetical case, SDC would receive $2,044. SDC would charge $119 more for online orthodontia than a licensed orthodontist would receive for 11 in-person appointments.

Dr. Ben Burris, an orthodontist from Arkansas, is an SDC spokesman who claims to have “diagnosed and treated hundreds of SmileDirectClub cases,” apparently without ever meeting a patient in person. He writes on the company’s website that he initially had concerns about SDC’s model: “The first thought that popped into my head was, ‘You can’t do that! It’s against the law for a non-dentist to practice dentistry, you can’t move teeth without an in-person visit to the dentist and you need an x-ray!’”

Dr. Burris overcame his scruples upon learning that the parent company also sells contact lenses and hearing aids over the Internet. Camelot Venture Group is the largest shareholder of Sharper Image and 1-800 Contacts. Sharper Image sells such self-cure devices as a “professional fat-reduction belt,” “sleep improving wristband,” “light therapy glasses,” a “breathing exerciser,” and “vibrating arthritis gloves.”

Dr. Burris may not realize this, but diagnosing and treating a malocclusion is not the same as filling a prescription for contacts. In one case, the patient has been examined and diagnosed by a licensed optometrist. The patient has been checked for diseases like glaucoma and has received a prescription, which can then be filled by mail. But with mail order braces, the patient receives no medical examination. Whatever other business interests the parent company may have, Dr. Burris’s initial conclusion stands. It is against the law for a non-dentist to practice dentistry.

 

Dissatisfied Customers

The only information publicly available on SDC’s outcomes (apart from testimonials on the SDC website) is based on voluntary reviews. The Better Business Bureau lists 126 customer complaints. Not all the online reviews are bad, but some customers say the product doesn’t work, charges are improper and customer service is terrible. One consumer writes:

I would NEVER RECCOMMEND [sic.] THIS COMPANY. I’d rather spend money … to see a real dentist and get quality service then [sic] deal with people who just want your money, ignore and lie to you….

Another customer writes on RealSelf:

I’m appalled by their customer service. I honestly wished I had paid the extra

$1,500 (after insurance) to get Invisalign through my primary dentist because it would’ve saved me that much frustration. I did not get the impression at any time using SmileDirectClub that there was actually a dental professional anywhere checking in on my progress.

Some patients write that the treatment has exacerbated a malocclusion or that they received bad medical advice. For example, a Ripoff Report user writes: “I noticed they were moving teeth that were straight (that are now totally misplaced).” Two Yelp users had similar complaints:

“I was given a 7-month treatment plan, which was delayed to a full year due to people forgetting to send my aligners, sending the wrong aligners … they even told me they accidentally sent me someone else’s aligners. Many weeks can be added for each aligner that is delayed or messed up. All of this would have been fine I guess if they just straightened my smile. My two front teeth are still bucked out and protruding and my smile looks crooked. They told me there’s nothing they can do and my teeth are in “optimal” position. Well I went to an orthodontist consultation and he immediately said I have protrusion and they can fix it, even with clear aligners. This company let me down.”

Another customer complains:

“Caused damage to my bite alignment. I can no longer bite all the way down. They also refused a full refund. Now I have a damaged “alignment” and will have to pay more at a dentist office to fix the damage…. Save your money and your smile and pay to see a real dentist in person.”

A customer reports to DentalBuzz.com that her online provider (not SDC) did not screen her for TMJ and told her, incorrectly, that hers was a simple case:

“It isn’t worth the money when you’re going to get saddled with further orthodontic treatment and bimax jaw surgery, in addition to chronic pain, from something like this – trust me, I know, because I’m living it. Thankfully a real orthodontist has taken me on as a patient … after this horrible experience.”

 

Harm To The Public

People may not realize what they are giving up when they forgo professional treatment. For example, here is an actual comment on Amazon regarding whether orthodontic gap bands (not an SDC product) provide a lasting improvement:

“they can go back the way they was most of the reasons for this is poor high-gen all you have to do is try a list to brush 2 times a day and always but always use LISTERINE it won’t hapen in 1week o 1 month but it will happen sooner o latter depends how bad it is and you will notice i talk for personal experience becose those rubber things they only going to give ypu gum infections that all you paying for and believe me you don’t want that it really hurts i know believe me i know.”

Online patients do not receive radiographs. There is no dental screening for issues like periodontal disease, bone pathology, extra teeth in the bone, and so forth. Patients do not get any kind of basic evaluation, a cancer screen, or the identification of lesions that should be treated before orthodontia begins. Proper screening may uncover unseen, un-diagnosed issues that may result in loss of teeth, gum recession, or bone tumors that if not discovered may become increasingly serious or even fatal.

There may be impactions or cranio-facial abnormalities that may become worse under the online treatment, dentists say. Other problems may be discovered during treatment by an orthodontist, which remain hidden in an online case, for example: posterior open bites, lack of rotational control, or poor deep bite management.

Nor is anyone following the patient as an orthodontist would. As one of my clients pointed out, “The orthodontist in real time modifies the appointment periodicity as a function of the patient’s behavior and responsiveness to treatment. Furthermore, there are adverse oral conditions that that may arise during treatment. These include root resorption, soft drink related decay under aligners, gingival recession, traumatic occlusion, gingival impingement, and the loosening of dental restorations.” When no orthodontist is involved, these problems go unnoticed.

Unlicensed Practice

It’s illegal to “directly or indirectly practice or attempt to practice dentistry” without a license. G.L. c. 112, § 52. Someone is practicing dentistry if s/he “offers or undertakes by any method to diagnose [or] treat, any deficiency, deformity or other condition of the … teeth, gums, or jaws….” G.L. c. 112, § 50.

Under the regulations of the Board of Registration in Dentistry, only a licensed dentist can write an orthodontic prescription. Only licensed dentists can perform final positioning and attachment of orthodontic bonds and bands. Patients must provide specific informed consent for orthodontic procedures.

Dr. Burris says on the SDC website that he has “diagnosed and treated” hundreds of SDC cases. If SDC is diagnosing and treating patients, then it is practicing dentistry. And because it has a Boston office, SDC is providing services in the commonwealth.

 

What Can We Do About It

If an orthodontist opened a storefront where “dental technicians” scanned patients’ teeth and provided aligners for the patients to install themselves — without complying with any of the other regulations — that orthodontist would probably hear from the Board of Registration in Dentistry. But SDC is not a licensed dentist — it’s a corporation — and the board does not feel it has jurisdiction to impose a sanction.

But the board does not just sanction licensed dentists. It is legally required to investigate complaints of the unlicensed practice of dentistry. If it finds that there is reasonable cause to believe a violation has occurred, it “shall forthwith file a written report of the same with the attorney general who shall, within three months following receipt of such report, notify the board in writing of the action taken with respect to such violation.” G.L. c. 112, s. 43.

By using words like “forthwith” and setting a three-month time limit for the attorney general, the legislature is saying that unlicensed practice must be dealt with quickly. But after six months, the board has not taken any action on the complaints. In the meantime, Massachusetts residents have a choice. They can hire a licensed professional, or they can order aligners on the Internet and hope for the best.

posted by: joelrosen in Announcements, BUSINESS, For Medical Professionals | 3 Comments

3 Responses to “Mail Order Orthodontics – Article by Joel Rosen in Lawyers Journal”

  1. adamza says:

    I have the same experience in the SDC. Any advice? Please. Thanks.

  2. Dr. Evan Prado says:

    Forget about the physical “clubs” with no licensed dentist and drop the entire “practicing without a license” argument because they are utilizing the loophole of teledentistry which is uncharted territory. These scam artists (Align Technology) think they have found a way to beat the system and the worst part is they have partnered with some real scumbag dentists who help them do it. I’m a dentist and find this company to be absolutely repulsive. They are practicing dentistry with a license but doing so well under the standard of care by allowing patients and assistants perform a procedure that only a dentist can do. A dentist is required to take all final impressions, whether it is a digital scan or a traditional impression, for any prosthetics or appliances that are definitive treatment for underlying pathology. I use a digital scanner in my practice for crowns and Invisalign. A final impression is a final impression, whether it’s a scan or an actual impression, and it must be performed by a dentist. A lot of dentists allow assistants to take them (I do not) and then just check them. This is technically not allowed but people get away with it because who is policing them. Smile direct is advertising it and even worse they are allowing patients to take their own impression. They claim that “no real harm can be done”. False! My wife is an MD and has seen several patients that have had small bowel obstructions after having impressions taken for dentures by an actual dentist, which required surgery. Bottom line, what align technologies is doing is flat out wrong. They are using modern technology and a corporate veil to push their product on patients because dentists weren’t doing enough Invisalign cases. It’s a little odd that the smile direct price to patients is the same price Invisalign providers pay to align technologies in “lab costs” for a full case. They didn’t just figure out a way to bypass dentists, they also figured out a way to bypass the ADA by not dealing with insurance companies. Sure, they will give you the necessary claim form to submit to your insurance company and you can file the claim, but they don’t care if you get reimbursed. File a class action on these people and petition the FDA to never allow their Costa Rican product to be sold in the US. This company was built on jumping through loopholes. Invisalign has general dentists, with no orthodontic education, taking impressions and sending them to their factory in Costa Rica. Then an orthodontist, licensed in Costa Rica not the US, creates a treatment plan and sends a “clincheck” to the dentist. In the US. As soon as it gets that US license stamp of approval everyone is good to go. Bottom line, they figured out how to practice dentistry “without a license” a long time ago but with smile direct they crossed the line. Again they are technically practicing with a license but are doing so wel under the standard of care. I’ll end with this: an patient who is unhappy with the end result of any dental treatment, especially cosmetic treatments, cannot legally do anything to the providing dentist as long as that dentist as practiced and performed all procedures to the best of his ability while operating at or above the standard of care.

  3. joelrosen says:

    As far as I know, there has not been a class action yet. However, you can file a complaint with your state licensing board for unauthorized practice. You may also be able to find a lawyer in your state who would be willing to take your case on a contingent basis, depending on the damages you suffered. Good luck.

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