A Review of Dental Enforcement in 2021 and a Look at What Dentists Should Expect in 2022

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(February 22, 2022): The treatment and business challenges presented by COVID-19 over the last two years have been especially demanding on dentists and their practices. Between the lockdowns and a hesitancy by many individuals to schedule non-emergent dental care, many dental practices have found it tougher than ever to maintain previous levels of profitability. Not surprisingly, Federal and State criminal prosecutions of dental fraud cases dropped precipitously during 2020 and 2021. Nevertheless, that doesn’t mean that the government or private payors have put their investigations on hold.  With respect to administrative reviews, both private health insurer anti-fraud units and Unified Program Integrity Contractors (UPICs) for the Center for Medicare and Medicaid Services (CMS) have moved forward with Medicaid audits of dental claims around the country.  Furthermore, both Federal and State prosecutors have continued to investigate alleged violations of the False Claims Act by dentists and dental practices. This article examines the various dental audits, investigations and prosecutions that took place in 2021 and examines the anticipated dental enforcement landscape facing dentists and their practices in 2022.

I. Data Mining Remains the Primary Targeting Tool used in State Audits and Investigations of Medicaid Dental Claims

UPIC auditors have been tasked by CMS with the responsibility of conducting program integrity audits of dental claims. More specifically, UPICs are responsible for "preventing, detecting, and deterring fraud, waste, and abuse in both the Medicare [1] program and the Medicaid program."[2]

One of the first questions we are asked by dental clients is "Why was my practice targeted by the UPIC?" The short answer is that UPICs are required under the terms of their contracts with CMS to proactively develop leads for auditing purposes. This is primarily accomplished through data mining and an analysis of the coding, billing and utilization practices of specific dentists and dental practices. Dental providers with irregular or aberrant billing practices are more likely to be subjected to a UPIC audit. The following factors are some of the audit screening criteria used by UPICs to target specific dentists and dental practices:

  • Dentists who received extremely high payments per patient;
  • Dentists who rendered an extremely large number of services per day;
  • Dentists who provided an extremely large number of services per patient per visit;
  • Dentists who provided services to an extremely large number of children and other patients;
  • Dentists who provided certain selected services to an extremely high proportion of children, i.e., pulpotomies and extractions.

Other actions that may trigger an audit by a UPIC include, but are not limited to:

  • An adverse report filed against a dental professional on the National Practitioner Databank (NPDB).
  • Complaints against a dentist or a dental practice made by Medicare / Medicaid from beneficiaries or their families.
  • Actions taken by State Dental Boards.
  • A history of prior adverse actions taken by Federal and / or State prosecutors and regulators.

II. Administrative Actions Taken by UPICs Against Dental Practices in 2021:

Depending on the UPIC’s audit findings, possible administrative actions that this program integrity contractor may take with respect to your dental practice include:

  • Conducting unannounced / non-scheduled site visits of your dental practice.
  • Placing your dental practice on prepayment review.
  • Initiating a postpayment audit of your previously paid Medicare and / or Medicaid dental claims.
  • Revoking a dental practice’s Medicare and Medicaid billing privileges.
  • Suspending a dental practice’s payments for dental services billed to Medicare and Medicaid.

III. Referrals of Dental Audit Findings to Law Enforcement for Civil Action or Criminal Prosecution:

If a UPIC identifies evidence of fraud or similar misconduct, it may refer its audit findings to law enforcement for civil action or criminal investigation and prosecution. It is worth noting that despite the fact that COVID-19 has significantly slowed the workload of most outpatient health care providers (including that of dental practices), civil audits and investigations of health care providers have continued during the pandemic. In fact, settlements and judgments from civil cases involving fraud and false claims against the government set a five-year high in 2021. Of the more than $5.6 billion recovered during 2021, more than $5 billion is attributable to health care related cases and matters.

Year 2017 2018 2019 2020 2021
Civil Fraud
Recoveries
$3.4 billion $2.9 billion $3.1 billion $2.2 billion $5.6 billion

IV. Private Health Insurer Audits of Dental Claims are Expected to Increase in 2022:

As with their Federal and State counterparts, private health insurers are actively taking steps to ensure that the dental claims submitted to their plans properly qualify for coverage and payment. Each private health insurer has established Special Investigative Units (SIUs) to identify and ferret out fraud and other improper dental billing practices.

Collectively, private health insurers have established the National Health Care Anti-Fraud Association (NHCAA). Founded in 1985, the NHCAA is the leading national organization focused exclusively on the fight against health care fraud. Last November, the NHCAA held its 2021 Annual Training Conference. It is important to note that the conference agenda included several dental fraud presentation presentations.

  • Presentation #1: Common Dental Fraud Schemes. Among the various dental fraud schemes to be discussed, several common concerns were slated to be discussed at the conference. These include: (1) billing for services not rendered, (2) upcoding, (3) unbundling.
  • Presentation #2: Data Analytics. SIUs are actively using “Data Analytics” to identify aberrant billing patterns, negotiate settlements and present findings to law enforcement.
  • Presentation #3: Teledentistry. Due to COVID, the number of teledentistry claims submitted has greatly increased. SIUs are carefully examining these claims to identify possible fraudulent submissions.

V. Examples of Civil and Criminal Enforcement Cases Brought in 2021:

Despite the fact that the pandemic was in full swing, Federal prosecutors around the country continued to investigate and pursue civil and criminal allegations of dental fraud and related wrongdoing. Examples of cases brought in 2021 include:

  • Virginia. December 2021. State prosecutors in Virginia announced the arrest of an individual who was practicing dentistry without a license. The defendant allegedly set up a dental practice next to her husband’s veterinary clinic. The non-licensed dentist has been charged with a felony.
  • Oregon. December 2021. An Oregon dentist was indicted for fraudulently converting to his personal use nearly $8 million in loans intended to help small businesses during the COVID-19 pandemic.
  • South Korea. October 2021 In this case, an American dentist, practicing in South Korea, was alleged to have submitted false claims to TRICARE for dental services allegedly provided to U.S. service personnel and their families. The dentist agreed to pay $100,000 to resolve civil liability under the False Claims Act.
  • Massachusetts. September 2021. In this case, a Massachusetts dental office manager plead guilty to health care fraud for her role in submitting false claims to MassHealth. This case was related to the associated prosecutions of two dentists in the practice. One of the dentists had been previously excluded from participation in the MassHealth program. In order to circumvent his exclusion, the excluded dentist recruited another dentist to join his practice. From 2014 to 2018, dental services that the excluded dentist personally delivered were billed to MassHealth using the non-excluded dentist’s provider identification credentials. The dentists were charged with health care fraud. The excluded dentist was also charged with identity theft. The purpose of this arrangement was to deceive MassHealth into paying for dental services that were not reimbursable (because MassHealth had terminated the dentists from the MassHealth program). The dental practice’s office manager, was aware of the arrangement and personally billed MassHealth for services that were not reimbursable, knowing that the claims were false.
  • New York. August 2021. In this case, a New York dentist was federally prosecuted for prescribing oxycodone and Xanax to drug-addicted women in exchange for sex acts. DEA investigators claim that the defendant engaged in this illegal conduct over a period of four years. The victims were not dental patients of the defendant. The defendant is currently facing up to 20 years in prison
  • Indiana. August 2021. The office managers of two Indiana dental practices have been charged with health care fraud, identity theft and various other crimes in connection with their scheme to defraud the Indiana Medicaid program. The government alleges that the defendants created false and fictitious entries in patient files to reflect that dental surgery had been performed when in fact, no surgery had taken place. The claims at issue total more than $350,000 in false claims.
  • Texas. May 2021. Two Texas dentists, their dental management companies and certain affiliated pediatric dental practices agreed to pay $3.1 million to resolve allegations that they violated the False Claims Act. This settlement resolves allegations that between May 2011 and May 2017, two dentists and their affiliated management companies and pediatric dental clinics submitted or caused the submission of false claims for payment to the Texas Medicaid Program for fillings in children that were not actually performed.  The settlement also resolved allegations that they submitted or caused the submission of claims using erroneous Medicaid provider numbers misrepresenting the dentists who performed pediatric procedures.

VI. Risk Areas for Dental Practices in 2022:

While a number of the risk areas outlined below have been a continuing concern for both UPICs and SIUs for many years, several of the points discussed have only recently been identified by auditors as a possible problem for dentists and dental practices.

  • Billing for services not rendered. In 2021, a number of private health insurer SIU audits alleged that multiple instances were found where dentists billed for periodontal services that were supposedly not performed. It is essential that you ensure that the services you perform are properly documented, medical necessity of the service is shown, and that any associated radiographs are legible and on file.
  • Misrepresentation of a non-covered service. In some respects, this improper practice is nothing more than another form of “billing for services not rendered.” Simply put, in the cases we have seen where this has occurred, a dentist or dental practice has either purposely or erroneously characterized a non-covered dental service as a covered service. Keep in mind, the definition of a non-covered service varies from payor policy to payor policy. Additionally, the list of non-covered services under a specific policy may change from year-to-year
  • Misrepresentation of the provider of the dental service. This type of billing error is among the most prevalent being investigated and pursued by governmental and private payors around the country. This most commonly occurs when the dental services of a non-credentialed dentist are billed under the number of a credentialed dentist. Depending on the facts, we have seen these cases pursued as an overpayment, as violations of the civil False Claims Act, and in egregious cases, as criminal health care fraud violations.[3]
  • Failure to sign dental treatment notes. Rendering dentists have often failed to sign or initial each entry on the patient’s record pertaining to the treatment he or she rendered. Treating dentists and hygienists or assistants should sign or initial each entry on the patient’s record that pertains to a treatment he or she renders. This is often a state regulatory requirement and is typically required by both governmental and private payor agreements.
  • Cases where individuals have been found to have performed dental procedures outside their scope of practice. Generally, this occurs when a dental assistant or a dental hygienist performs a service that is outside the scope of practice authorized by their State Dental Board. In addition to pursuing a licensure action against the offending dental assistant or hygienist, a State Dental Board may also seek to discipline a dentist for “failure to supervise.”
  • Routine failure to collect the patient’s full payment or share of cost without notifying the carrier. Is your dental practice consistently collecting co-payments and deductibles that may be owed by a covered beneficiary?  In the case of a non-government payor plan, the unsupported waiver of these amounts may constitute a breach of contract. In the case of a State or Federal funded traditional or advantage plan, such a failure may constitute a violation of the Anti-Kickback Statute.
  • Missing dental treatment plans / consent forms. Completed dental treatment plans and consent forms have frequently been found to be missing from patient dental records. The dental treatment plans that were included were typically signed by the pediatric dental patient’s parent, but the signatures were often not dated. Signatures must be dated and should correspond to the date listed as the date of authorization noted on the claim form.
  • Improper employment of an excluded individual. Improperly employing an excluded individual or contracting with an excluded entity may result in an overpayment, the imposition of civil penalties and / or criminal prosecution for health care fraud. In some cases, we have seen dental practices improperly bill for these services under a non-excluded dentist’s number. Depending on the facts, this conduct may result in an overpayment, the imposition of civil penalties and / or criminal prosecution for health care fraud.

VII. Reducing Your Level of Audit Risk:

Perhaps the single most important step you can take to reduce the likelihood of a dental claims audit is to develop and implement an effective Compliance Plan. In March 2010, Congress passed the Affordable Care Act (ACA). Section 6401 of the ACA provides that a “provider of medical or other items or services or supplier within a particular industry sector or category” shall establish a compliance program as a condition of enrollment in Medicare, Medicaid, or the Children’s Health Insurance Program (CHIP). A properly constructed Compliance Plan can be used by a dental practice to identify and avoid instances of regulatory non-compliance or violations of law, including the risks identified in Section VI above.

As a final point, if your dental practice is audited or investigated by a UPIC or the SIU of a private health insurer, we recommend that you engage experienced, qualified health law counsel for assistance. Many of the health lawyers at Liles Parker have extensive experience representing dental providers in government audits and investigations. Moreover, in addition to being experienced health lawyers, our attorneys also hold one or more national certifications in coding, billing and / or compliance. Give us a call for a free consultation. We can help.

Robert Liles

Robert W. Liles serves as Managing Partner at the health law firm, Liles Parker, Attorneys and Counselors at Law. Liles Parker attorneys represent dentists, dental practices and other health care providers around the country in connection with Medicare, Medicaid and private payor dental claims audits. The Firm also represent dentists in connection with State Dental Board complaints and investigations. For a free initial consultation regarding your situation, call Robert at: 1 (800) 475-1906.

  • [1] Although traditional Medicare does not cover most dental care and treatment services and procedures, many Medicare Advantage plans have expanded their scope of services and now provide varying levels of dental coverage for qualifying Medicare beneficiaries.  
  • [2]Medicare Program Integrity Manual, Section 4.2.2.1. Free
  • [3] For a detailed discussion on this risk area, please see our previous article examining this issue.