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We Defend Healthcare Providers Nationwide in Audits & Investigations.

Special Investigative Unit (SIU) Audits

January 13, 2021 by  
Filed under

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Last month, the Centers for Medicare & Medicaid Services (CMS) announced that the Medicare fee-for-service improper payment rate had declined from 11% in Fiscal Year (FY) 2016 to approximately 6.27% in FY 2020. [1]  Despite the fact that real progress in reducing the amount of improper Medicare payments has been made, health care fraud, waste and abuse remain a significant problem for both government and private payor insurance plans.  The National Health Care Anti-Fraud Association (NHCAA) has noted that some government and law enforcement agencies have placed the total amount of loss as high as $300 billion. [2] Multiple State and Federal investigative and enforcement agencies are responsible for the audit, detection and, in some cases, the prosecution of individuals and entities that have improperly billed traditional Medicare, Medicare and other Federal health benefit programs in an effort to safeguard the public fisc.  Private payor insurance programs, Medicare Advantage and Medicaid Advantage plans typically rely on in-house or contract Special Investigative Units (SIUs) to help protect their plans waste, fraud and abuse.  This article examines the origin and present-day efforts of SIUs around the country and discusses how you should respond if your claims are audited by a medical or dental services SIU.

I.  Rise of Special Investigative Units (SIUs):

Historically, the first SIU was established in Massachusetts in 1976 by Kemper Insurance. [3]  At this time, a rash of auto insurance fraud schemes had taken place and insurance companies were looking for a way to better detect and deter future from occurring.  Since that time, virtually all insurance companies have established SIUs to help protect the financial integrity of the various insurance lines (auto, properly, life and health) the offer.   Today, health insurance SIUs dominate the industry landscape. In fact, a number of States have passed legislation mandating that health plans establish SIUs and implement a range of anti-fraud measures.  New York [4] and Florida [5] are two examples where statutory SIU mandates have been enacted.

II.  What are the Responsibilities of an SIU?

Practically all non-governmental health insurance companies have established an internal department or contracted with an outside group to serve as payor’s SIU.  These SIUs are devoted to the detection of false or fraudulent insurance claims. Not surprisingly, private sector insurance companies providing medical and dental coverage often have remarkably robust SIU programs. [6]  Generally, medical and dental SIU responsibilities include, but are not limited to:

  • Development and implementation of a “Fraud Prevention Plan.”
  • Creation and distribution of a “Fraud Detection and Procedures Manual.”
  • Provision of anti-fraud education and training to underwriting and claims staff.
  • Review of suspicious claims flagged by claims personnel.
  • Investigation of fraud, waste and abuse complaints filed by patients, underwriters, claims section personnel, and others against billing providers and suppliers.
  • Sharing information (such as new fraud schemes detected) with other SIUs and with government enforcement entities.
  • Referring instances of civil wrongdoing to the payor’s legal counsel for possible legal action.
  • Making criminal referrals to State and Federal law enforcement agencies for their review and possible prosecution.

III.  Who Works in an SIU?

Not surprisingly, many of the management and investigative staff employed by private payor SIUs have law enforcement and / or investigative experience.  Former agents of the Federal Bureau of Investigation (FBI), the Department of Health and Human Services —    Office of Inspector General (OIG), and State Medicaid Fraud Control Unit (MFCU) personnel are often recruited by non-governmental SIUs.  SIUs also typically employ medical and dental clinical personnel who are experienced in conducting claims reviews and are knowledgeable about medical necessity, documentation requirements, coverage rules, coding, and billing guidance associated with the health care services that are eligible for payment under a particular plan.

IV.  How are SIU Referrals Generated?

Referrals to SIUs for audit and investigations generally fall into the following categories:

  • Referrals from internal underwriting and claims staff. When suspicious claims activity or potentially fraudulent enrollment or underwriting conduct is identified, a referral is normally made to the payor’s SIU for follow-up and investigation.  After reviewing the matter referred, an SIU investigator may determine that no improper conduct was detected and return the file to the sender for processing.  To the extent that the SIU determines that improper billings are present but that the provider’s conduct does not rise to the level of fraud, the SIU will normally seek to recover identified overpayments from the responsible providers.
  • Data mining. As in the case of their government counterparts, SIUs use data mining techniques to identify providers whose claims and utilization practices are different than those of their peers. To the extent that a provider appears to be an outlier, the SIU then conducts a deeper review of the questionable claims being billed by the provider. After completing their review of the questionable claims, an SIU may determine that an overpayment has been made.  If evidence of fraud is identified, the SIU may also make a referral to law enforcement for their consideration and possible prosecution.
  • Health Care Fraud Working Group referrals. Since the passage of the “Health Insurance Portability and Accountability of 1996” (HIPAA), CMS, OIG, FBI, Department of Justice (DOJ) prosecutors and other government stakeholders have periodically met with private payor SIU representatives to share their knowledge of fraud schemes identified, enforcement initiatives and similar information.  These informal Health Care Fraud Working Groups are typically organized and managed the U.S. Attorney’s Office in each judicial district.  It is worth noting that the ‘‘Consolidated Appropriations Act, 2021’’ enacted in December 2020, created a new “Public-Private Partnership for Waste, Fraud, and Abuse Detection.”  This effectively codifies, replaces and funds the informal “partnership” established in 2012 by the Secretary, HHS, which is currently known as the “Healthcare Fraud Prevention Partnership (HFPP).”  It remains to be see whether the HFPP will supplement or supplant, the existing information Working Groups that are now well established around the country.
  • Patient, provider and anonymous complaints. All SIUs have set up reporting mechanisms to facilitate the submission of complaints by patients, providers and individuals who wish to remain anonymous.  These reporting mechanisms normally include telephone hotlines, mail and online reporting options.
  • State Medical Board or State Nursing Board informal and direct referrals. To the extent that a State Medical Board takes an adverse action against a licensed health care provider, the board is likely required by law to report the adverse action to the National Practitioner Databank (NPDB).  When this report is filed, notice of the adverse action is available to insurance payors.  SIUs carefully monitor these reports to determine if an audit or investigation of a provider’s claims is warranted.

V.  Types of Improper Conduct or Fraud Cases Investigated:

As you would imagine, the types of improper coding and billing cases identified by SIUs are quite similar to the types of cases pursued by their government counterparts, such as Unified Program Integrity Contractors (UPICs) and Recovery Audit Contractors (RACs).  Examples of improper made by medical practitioners include:

  • Failure to properly document support for medical necessity.
  • Improperly billing for the services of a non-credentialed provider.  
  • Improper use of incident-to billing.
  • Failure to sign / close out an EHR entry.
  • Failure to screen – employment of an excluded individual.
  • Improper E/M coding practices (e.g. 25 modifier problems, lack of supervision, unqualified provider, substandard quality).

Examples of improper made by dental practitioners include: 

  • Billing for dental services not rendered.
  • Failure to sign progress notes (either electronically or by hand).
  • Misrepresentation of a non-covered service.
  • Misrepresentation of the provider of the dental service.
  • Unlicensed individuals found to have performed dental procedures.
  • Routine failure to collect the patient’s full payment or share of cost without notifying the carrier.
  • Missing dental treatment plans / consent forms.

VI.  Actions That Can be Taken by an SIU:

As set out below, there are a number of actions than an SIU may take as part of its assessment of your medical necessity, documentation, coding and billing practices.  These actions include, but are not limited to:

  • Unannounced site visits. Representatives of a payor’s SIU may show up unannounced at your office.  They typically try to get records while they are on the premises.  This approach is very unfair to providers, often leads to an interruption of patient care and can result in an incomplete assembly of medical records. Call your health lawyer if the SIU shows up at your office!?
  • Prepayment audit. When suspicious billing practices are identified, SIUs are increasingly placing providers on prepayment    This can delay payment and can be quite time consuming.?
  • Postpayment audit. SIUs are continuing to expand their use of postpayment audits and have tried to extrapolate damages in many of our client’s audits.  We have been very successful in having the extrapolated damages dismissed based on contractual and state law arguments.?
  • Payment hold.  Depending on the nature of the SIU’s concerns, a provider may be placed on payment hold until the payor is satisfied that the billing practices are compliant.
  • Corrective action plan. If an SIU believes that the improper conduct identified was the result of lack of training, lack of knowledge, an error or a mistake, it may permit a provider to remain as a participating provider as long as the provider enters into and abides by a corrective action plan.
  • Termination from plan. In the event that an SIU believes that a participating provider is engaging in improper conduct or fraud, the SIU may recommend that the payor terminate the provider agreement between the parties.  Your right to appeal a proposed termination action varies from contract to contract.
  • Referral to law enforcement. The most serious action that an SIU can take is to allege that you are engaging in fraud and report you to the OIG or DOJ for investigation and possible prosecution.

NATIONWIDE REPRESENTATION — CALL 1 (800) 475-1906

Liles Parker attorneys include several former Federal prosecutors who held significant positions at the Department of Justice.  Many of our health lawyers are also Certified Professional Coders.  Our lawyers have extensive experience representing clients in audits by private payor Special Investigation Units.  Are your medical or dental claims being audited?  Give us a call for a complimentary consultation.  We can be reached at:  1 (800) 475-1906.

[1] A list of the Medicare Fee-for-Service Improper Payment Rate for Fiscal Years 2012 through 2020 is available at this link.

[2] National Health Care Anti-Fraud Association http://www.nhcaa.org/resources/health-care-anti-fraud-resources/the-challenge-of-health-care-fraud/

[3] Clifford D. Shearing, Philip C. Stenning, Private Security: Implications for Social Control, Social Problems, Volume 30, Issue 5, 1 June 1983, Pages 493–506, https://doi.org/10.2307/800267

[4] Section 409 of the New York Insurance Law and Regulation 95 require insurers to file with the Department of Financial Services,

[5] Florida SIU Requirement: Section 626.9891; Rule Sections 69D – 2.001-2.005.

[6] There are numerous articles on our website addressing the enforcement activities of specific dental SIUs.  These include, but are not limited to:

(1) “United Concordia Dental and its SIU are Actively Auditing Dentists Around the Country.” 

(2) SIU Dental Audit Reviews by DentaQuest, Delta Dental and Cigna Can Ultimately Lead to Criminal Prosecution and Imprisonment.  Are Your Dental Office’s Medical Necessity, Documentation, Coding and Billing Practices Compliant?” 

(3) Aetna’s SIU is Actively Auditing Dental Claims. Are Your Dental Services Compliant with Applicable Regulatory and Contractual Requirements?”

 

 

 

United Concordia Dental and its SIU are Actively Auditing Dentists Around the Country.

September 15, 2020 by  
Filed under Dental Audits & Compliance

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DOJ is aggressively prosecuting instances of COVID-19 fraud and related wrongdoing.(September 15, 2020):  There are approximately 1.4 million active duty service members in our country.  These active duty service members have approximately 1.9 million dependents.  Our military also consists of almost a million reserve and national guard participants.  Depending on an individual’s status, these active duty service members, their dependents, and reservists are likely eligible to participate in a dental plan administered by United Concordia Dental.  Despite the fact that many dental practices have been decimated due to COVID-19, United Concordia and its Special Investigations Unit (SIU) have continued to move forward with ongoing dental claims audits AND initiate new investigations of suspected instances of improper billing and fraud.   United Concordia’s SIU is responsible for detecting fraud and improper coding or billing practices in the government’s Active Duty Dental Program[1] and in the TRICARE Dental Program.[2]  This article examines recent investigations and prosecutions of dentists and their practices for the submission of improper dental claims to United Concordia for coverage and payment.  We will also discuss a number of the steps you can take to reduce your level of risk if your dental claims are audited by United Concordia Dental and its SIU.

I.  How are United Concordia Dental Claims Audits and Investigations Generated?

The SIU at United Concordia Dental is responsible for coordinating dental fraud investigations with both state and federal law enforcement agencies. Notably, United Concordia Dental’s Utilization Review Department has also taken an active role in the identification and audit of aberrant billing patterns.  Collectively, these units have capitalized on their ability to ferret out fraudulent billing and coding conduct using data mining.  Several of the primary referral sources relied on by United Concordia’s SIU and its Utilization Review Department are set out below:

Data mining. United Concordia Dental auditors and investigators rely heavily on their ability to compile and analyze historical utilization, coding and billing data to identify potential improper conduct.  While data mining and analytics may not be able to definitively prove that a dentist is defrauding a payor, it can be used an effective audit targeting tool by the payor.  Once an outlying dentist is identified, the payor can focus its audit and investigative resources on specific issues and claims.

Patient complaints. When a patient is treated by a dentist, an Explanation of Benefits (EOB) is ultimately generated and sent to the attention of the subscriber (the individual responsible for coverage by the health plan).  An EOB is intended to describe the dental services provided and indicate whether or not the service qualifies for coverage and payment.  Unfortunately, EOB’s are often cryptic and can cause significant confusion when reviewed by a subscriber. This can result in complaints filed with a payor’s SIU or a state / federal law enforcement agency.

Anonymous complaints. United Concordia Dental has established an effective SIU Fraud Hotline that can be used by a complainant to file a complaint.  A person registering a complaint with the SIU can choose to identify himself / herself OR may remain anonymous.  Complaints may be submitted through the SIU Fraud Hotline[3] by e-mail, fax or phone.  Individuals filing anonymous complaints have included patients, current or past employees, competitors and others who believe that he or she has knowledge of wrongdoing.

Overpayment data. This may be based on a specific dentist’s “error rate” or the overall error rate calculated for a dental practice. After considering a dentist’s history of repeated overpayments, United Concordia may decide to initiate an audit or investigation.

State dental licensing boards. State Dental Boards taking an adverse action against a licensed dental professional mat be required by law to report the adverse action to the National Practitioner Databank (NPDB).  When this occurs, notice of the adverse action will be accessible United Concordia Dental and other payors.  Depending on the nature of the allegations, this may spur the initiation of an audit or investigation by the payor.

Industry reports and findings of improper conduct.Dental payor SIUs and utilization staff are constantly on the lookout for evidence of improper dental billing and coding conduct and possibly fraudulent business practices. To the extent that trends are identified, this information is often shared among and between both private sector SIU personnel and their state and federal law enforcement counterparts.

II.  Types of Actions that May be Taken in the Event that Improper Dental Conduct is Identified:

Regardless of the source, if a fraud referral against your dental practice is made, United Concordia’s SIU and / or its Utilization Review Department will conduct an assessment of the allegations and determining whether further review and investigation is warranted.

Administrative RemediesIf wrongful conduct has been alleged, there are a number of administrative actions that United Concordia may choose to take against your dental practice.  These include:

  • Initiation of a postpayment audit of a dentist’s claims.
  • Placement of a dental provider’s claims on prepayment review.
  • A dentist’s billing privileges may be suspended by a payor.
  • Termination of dental provider’s participation in United Concordia’s program.

Civil Remedies To the extent that United Concordia Dental has been improperly billed, the payor may be able to pursue the following civil remedies:

  • Breach of contract (under state law).
  • Civil fraud (under state law).
  • Unjust enrichment (under state law).
  • Payment under mistake of fact (under state law).
  • Violations of the federal Civil False Claims Act (31 U.S.C. 3729).

Criminal Remedies.   While United Concordia Dental may not independently initiate a criminal action, it may make a referral to state and federal law enforcement authorities for possible prosecution.  Focusing on federal criminal prosecutions, the following statutory violations have commonly been alleged in prosecutions of dental fraud:

  • Prohibition Against Kickbacks (Anti-Kickback Statute)(42 U.S.C. § 1320a–7b(b)).
  • False or Fraudulent Claims (18 U.S.C. § 287). 
  • Conspiracy (18 U.S.C. § 371). 
  • Fraudulent Identification of Documents (18 U.S.C. § 1028). 
  • Mail, Wire, Radio and Television Fraud (18 U.S.C. § 1341, 1343). 
  • Health Care Fraud (18 U.S.C. § 1347). 
  • Obstruction of a Criminal Investigation into Health Care Offenses (18 U.S.C. § 1518). 

III.  Examples of Cases Prosecuted Against Dentists in Connection with Fraudulent United Concordia Dental Claims:

As a review of the payor’s efforts will show, the fraud identification and deterrence activities of United Concordia’s SIU and Utilization Review Department have been quite effective in a number of states.  Case examples of audits and investigations handled in Pennsylvania and California are set out below:

Pennsylvania.  Misrepresentation of a non-covered service.  In this case, the payor’s SIU received a referral from United Concordia Dental’s Utilization Review Department after a Beaver County dentist was identified as having a history of performing many more anterior restorations than the payor would normally expect to see when compared to his peers.  As a result, an audit of 30 patient dental records was conducted.  Upon review, the payor’s Dental Director found that the dentist had billed for multiple anterior restorations that were not documented in the patient dental records.  When asked about this inconsistency, the dentist admitted that when a patient needed a bridge, he knew that the payor wasn’t likely to cover the work so he would list the dental service provided as an anterior restoration.  Based on the dentist’s admission, a referral to the Federal Bureau of Investigation (FBI) was made and the dentist was prosecuted for fraud.  The dentist ultimately plead guilty to one count of health care fraud and agreed to repay $94,098.89 to United Concordia.

Pennsylvania.  (1) Misrepresentation of a non-covered service, (2) Billing for dental services not rendered.  In this Pennsylvania case, a fraud investigator for United Concordia Dental made a referral to the Delaware County District Attorney’s Office after identifying aberrant claims that appeared to be being billed to the payor.  When conducting an investigation into the dentist’s billing practices, the dentist allegedly admitted to improperly billing the payor, stating:

“Some of the patients asked me not to charge their copays, because their previous dentists didn’t charge it. . . I couldn’t say no. Instead of charging copays, I did false claims to cover their copays. I knew it was wrong, but I couldn’t ask for the copays.”

A detective interviewing the dentist further report that the defendant admitted that he charged United Concordia for root canal procedures (that were not performed) in order to cover the costs of other dental services that did not qualify for coverage.

Pennsylvania.  Billing for medically unnecessary dental services.  In yet another Pennsylvania case, a dentist was alleged to have submitted fraudulent dental claims to the Active Duty Family Member Dental Plan, a dental plan administered by United Concordia, under a contract with TRICARE.   Notably, the government also alleged that the defendant dentist had improperly waived beneficiaries’ co-payments.  Ultimately, the dentist plead guilty and was sentenced to one year in prison.  As part of a separate civil settlement, the dentist agreed to pay restitution of more than $527,000 to the dental payor.  Finally, the dentist also agreed to be permanently debarred from serving as a Department of Defense health care provider.

Pennsylvania.  Billing for dental services without a valid license.  In this case, an Alleghany County dentist was arrested after it was alleged that he had continued to practice dentistry with a suspension license. While his license was suspended, the dentist alleged to have continued to see patients and had billed United Concordia for dental services rendered. The state Attorney General’s Office charged with the dentist with two counts of insurance fraud.

California.  Billing for dental services not rendered.  In this case, a Los Angeles dentist plead guilty to one count of health care fraud in connection with his fraudulent billing of crowns and fillings that were not provided to patients.  Overall, the government alleged that the defendant improperly billing approximately $3.8 million in false and fraudulent claims to United Concordia, Denti-Cal (California’s Medicaid program), MetLife, Anthem, Cigna, Delta Dental, United Healthcare and other dental payors.  The government claimed that the defendant received more than $1.4 million in connection with these wrongful dental claims.  In addition to paying restitution to the affected dental payors, the defendant dentist was sentenced to more than three years in prison.

IV.  Responding to an Audit and Investigation of Your United Concordia Dental Claims:

Unfortunately, there is a significant chance that if your dental claims are audited, a reviewer will allege that your dental records are incomplete or incorrect.  Therefore, if you or your practice is subject to an audit or investigation, it is important that you engage legal representation as soon as possible.

Retain experienced health law counselDon’t wait until an overpayment has been assessed, it is in your best interests to bring in experienced legal counsel when you first receive notice of an audit or investigation.  Remember, everything you say is evidence!

Determine the focus of a government investigation of your dental claims and business practices. Is the focus of the current enforcement action administrative, civil or criminal?  criminal, civil or administrative?  If the focus is criminal, is the dentist considered a target, subject or witness?

Conduct a privileged internal investigation of your dental claims and business practices. You need to try and get ahead of the government’s investigation.  Determine the likely extent of any liability.  Be careful to ensure that the internal review is privileged?

Robert W. LilesRobert W. Liles serves as Managing Partner at the health law firm, Liles Parker, Attorneys and Counselors at Law.  Liles Parker attorneys represent dentists and dental practices around the country in connection SIU private payor and state Medicaid audits and investigations.  Are your dental claims currently being audited or under investigation?  We can help.  For a free initial consultation regarding your situation, call Robert at: 1 (800) 475-1906.

[1] Generally speaking, the Active Duty Dental Program covers active duty service members and members of the national guard.

[2] The TRICARE Dental Program is a voluntary dental plan that is available to family members of an active duty service member and family members of a member of the national guard.

[3] A copy of United Concordia’s “SIU Fraud Hotline” form can be found at the following link: https://www.unitedconcordia.com/docs/fraudcomplaintform.pdf

Recent Developments in Personal Care & Community-Based Services in Medicaid and Medicare

March 23, 2020 by  
Filed under Home Health & Hospice

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(March 23, 2020): Until recently, personal care services, such as home health aides, were not covered under the Medicare program unless they were part of a skilled service where the beneficiary was homebound.  However, beginning with calendar year 2019, the Medicare program has expanded the ability of plans that participate in the Medicare Advantage program (“MA Plans”) to offer these services as a separate supplemental service at their option.  Additionally, as part of the Bipartisan Budget Act of 2018,[2] Congress expanded the supplemental benefits that MA Plans could offer to encompass certain benefits that were not primarily health related for certain chronically ill patients beginning with calendar year 2020.  This paper will discuss those changes, some of the major compliance issues that providers of personal care services face, and how the Medicaid program addresses these services.

I.   The Medicare Advantage (“MA”) Changes to Cover Additional Supplemental Benefits:

A. The 2019 MA Changes to Cover Personal and Other Home and Community Based Type Services

MA Plans are permitted to cover certain benefits that are not included in the fee for service Medicare program (“Original Medicare”).  Generally, these have taken the form of benefits such as dental and vision services.  However, to be covered as supplemental benefits, the items and services have been required to be “primarily health related.” [3]

Prior to calendar year 2019, the Centers for Medicare and Medicaid Services (“CMS”) has considered an item or service to be “primarily health related” only if the primary purpose is to “prevent, cure, or diminish an illness or injury.”[4] However, CMS had not considered a service to fit within this definition if the primary purpose is daily maintenance.

In the 2019 Final Call Letter, CMS announced that it would change the definition of that term to cover services under certain conditions “even if a significant purpose of the item is daily maintenance.”[5] Thus, under the new interpretation, “in order to be ‘primarily health related’ … [an item or service] must diagnose, prevent, or treat an illness or injury, compensate for physical impairments, act to ameliorate the functional/psychological impact of injuries or health conditions, or reduce avoidable emergency and health care utilization.”

The intent of the change was to provide plans the flexibility to offer supplemental benefits that enhance the quality of life and improve outcomes.  The service, however, also must be medically appropriate, recommended by a licensed provider as part of a plan of care, and cannot include items or services that are solely to induce enrollment.

A letter from CMS to MA Plans dated April 27, 2018 provided further guidance on the new interpretation of “primary health related.”[6]  The letter listed a number of examples of benefits that MA Plans could provide beginning in 2019 under the revised definition including in-home support services, adult day care services, home-based palliative care, support for caregivers enrollees, medically-approved non-opioid pain management, stand-alone memory fitness benefit, home and bathroom safety devices and  modifications, transportation, and over-the-counter benefits.  The letter further described in-home support benefits as:

“in-home services to assist individuals with disabilities and/or medical conditions in performing ADLs and IADLs within the home to compensate for physical impairments, ameliorate the functional/psychological impact of injuries or health conditions, or reduce avoidable emergency and healthcare utilization.  Services must be provided by individuals licensed by the state to provide personal care services, or in a manner that is otherwise consistent with state requirements.” (Emphasis added.)

Finally, in a speech at the Medicare Prescription Drug Plan Spring Conference, Seema Verma, Administrator, CMS, stated that “[t]his means that now Medicare Advantage beneficiaries will be provided adult day care services, respite care for caregivers, and in-home assistance with activities like bathing and managing medications.” (Emphasis added.)[7]

B. The 2020 MA Changes to Cover Benefits that are Not Primarily Health Related for Certain Chronically Ill Patients

The Balanced Budget Act of 2018 further expanded the benefits that MA Plans could offer as supplemental benefits to include certain benefits that are not primarily health related for chronically ill beneficiaries if they chose, beginning in 2020.  In the 2020 Final Call Letter, CMS refers to these benefits as Special Supplemental Benefits for the Chronically Ill (“SSBCI”).[8]

Unlike other supplemental benefits, MA Plans are able to offer SSBCI in a non-uniform manner.  Thus, MA Plans will be allowed to vary or target SSBCI to an individual’s particular medical needs.[9]  However, the 2020 Final Call Letter also states that while MA Plans have broad discretion with respect to both non-uniformity and the form of the benefit, itself, the items or services provided must have a reasonable expectation of improving or maintaining the health or overall function of an individual as it relates to the chronic condition or illness.[10]

For the purpose of SSDI, a chronically ill enrollee is one who: “ 1) has one or more comorbid and medically complex chronic conditions that is life threatening or significantly limits the overall health or function of the enrollee; 2) has a high risk of hospitalization or other adverse health outcomes; and 3) requires intensive care coordination.”[11] Currently, CMS will consider any individual with a condition identified as chronic in the list at section 20.1.2 of Chapter 16b of the Medicare Managed Care Manual to meet this criteria.  However, the 2020 Final Call Letter also states that CMS will convene a technical advisory panel to periodically update the list of conditions that satisfy the necessary criteria.[12]

CMS followed up the 2020 Final Call Letter with additional sub-regulatory guidance in the form of a letter to Medicare Advantage Organizations.[13]  That letter listed as examples of permitted benefits, the following: meals beyond a limited basis; food and produce; transportation for non-medical needs; pest control; indoor air quality equipment and services; social needs benefits; complimentary therapies; services supporting self-direction; structural home modifications; and general supports for living.[14]

C. Status of Implementation by MA Plans

Anecdotal information indicates that plans were experimenting with the types and scope of benefits to cover under the reinterpretation of “primarily health related” during the 2019 calendar year.  This was, in part, due to the fact that the 2019 Final Call Letter was not issued until April 2018, just two months before plan bids were due.  Thus, there was a limit on the time within which MA Plans had to determine how to utilize this new flexibility.  Also, the nature of the benefit, coupled with the competition from traditional supplemental benefits such as dental and vision care, almost dictated a need for experimentation and slow implementation.

Nevertheless, two studies by Milliman attempted to encapsulate the manner in which MA Plans had implemented that flexibility in the initial plan year that they were available.[15]  And a more recent Milliman study that was published in November 2019 appears to indicate that a significantly greater number of plans are offering new types of supplemental benefits for the 2020 calendar year.[16]

II.   Compliance Issues in Personal Care:

Personal care services have become extremely popular as other government programs attempt to rebalance services for the elderly and disabled from those that are provided in institutions to those provided in the home.  Additionally, many individuals who otherwise do not qualify for government sponsored long term care under the traditional benefit package also prefer to use personal care aides to enable them to remain in their homes.

However, from a compliance standpoint, personal care provides a number of challenges.  First, aides are frequently low paid, and thus struggle to make a living wage.  Additionally, the work can be difficult.  From an agency perspective, government rates generally are low, thus furthering the need to retain workers at low wage levels and the needs of elderly and disabled clients can be extremely challenging.  Adding to these difficulties is the fact that because the work takes place in the home, it is more challenging to monitor than care provided in the institutional setting.

Over the past years, there have been a number of investigations and prosecutions of home and personal care aides and agencies.  The issues involved in these cases have taken a number of forms but generally arise under several categories.  Thus, conduct that has been prosecuted can range from aides colluding with clients who otherwise would not be eligible for services, falsification of time sheets by aides and clients, operation of an agency by an excluded individual, and theft from elderly clients.

As an example, in 2014 the Federal Bureau of Investigation had a “takedown” of more than twenty individuals and agencies for Medicaid fraud in the District of Columbia.  Allegations involved aides falsifying time sheets for visits that never occurred, sometimes to clients who falsified their eligibility for services, and splitting the Medicaid payments between aides and clients for services that were never provided.  In one instance, an agency owner who had been excluded in Virginia under her maiden name, operated an agency in the District under a different name and allegedly received more than $70 million from the District Medicaid program before being busted.  There were even allegations that one or more aides involved in the conduct transported a patient who had been out of state when services were allegedly delivered, back to the District because they had determined that the company would be making an internal compliance verification visit to check on the delivery of services.[17] These actions resulted in the Director of the District’s Medicaid program estimating that he lost approximately 70% of his providers and temporarily establishing a government operated personal care agency to provide care while the Medicaid program rebuilt its provider pool.

In another example, twelve people, including home care aides and the owners of a home care agency, were indicted for an $87 million Medicaid fraud in Pennsylvania. The allegations included making false Medicaid claims, creating fake employees, misusing customers’ personal information and falsifying documents, and submitting claims for “customers” who were in the hospital, jail, or dead. [18]

As yet another set of examples, two more home care workers were recently sentenced to prison for paying kickbacks to beneficiaries and submitting timesheets to different home care agencies for services that they did not provide, and one for billing for services that she claimed to provide while traveling outside of the United States.  This case also highlights the difficulty of monitoring the service because the aides were alleged to have perpetrated the fraud to the District of Columbia Medicaid program from 2014 through 2018 at eighteen different agencies, despite the major District takedown in 2014.[19]

The Office of the Inspector General at the United States Department of Health and Human Services has issued several reports with recommendations in the area.[20] The most significant would require states to either enroll personal care attendants as providers or require those attendants to register with state Medicaid agencies, assigning each a unique identifier.

Finally, as part of the 20th Century Cures Act, beginning January 1, 2020, all State Medicaid Agencies must require an electronic visit verification (“EVV”) system for Medicaid-funded personal care services to verify that the visits actually occur.[21] States that fail to implement this requirement on a timely basis are subject to an incremental reduction in their Federal Medical Assistance Percentage for these services which ultimately reaches 1%.  CMS is authorized to provide an exception to states to delay implementation for up to one year if they can demonstrate making a good faith effort to comply but have encountered unavoidable delays.  However, the State must apply for, and be granted, the waiver by CMS.[22]

While this provision only applies to personal care services provided under the Medicaid program, these trackers may be at least a partial solution for those agencies that choose to provide these services for MA Plans.  This is especially so since agencies that also participate in Medicaid will already be required to implement EVV for those services, and MA Plans almost certainly will have their own compliance plan requirements as well.

III.   Personal Care and Home and Community Based Services in Medicaid:

Unlike the Medicare program, states have been able to provide home and community-based services, including personal care services, under Medicaid for many years.  While states will vary on how and when they will provide these services to beneficiaries, virtually every state covers personal care services under either its State Plan or one of several waiver authorities.[23]

States are able to provide personal care services under the following authorities taken from a table in a recent Kaiser Family Foundation report[24]:

  1. Home Health Services (required State Plan service):
    • Part-time or intermittent nursing services, home health aide services, and medical supplies, equipment and appliances suitable for use in the home
    • At state option-physical therapy, occupational therapy, and speech pathology and audiology services
  2. Personal Care Services (optional State Plan service)
    • Assistance with self-care (e.g. bathing, dressing) and household activities (e.g. preparing meals)
  3. Community First Choice (optional):
    • Attendant services and supports for beneficiaries who would otherwise require institutional care
    • Income up to 150% FPL or eligible for benefit package that includes nursing home services; state option to expand financial eligibility to those eligible for HCBS waiver
  4. Section 1915(i) (optional):
    • Case management, homemaker/home health aide/personal care services, adult day health, habilitation, respite, day treatment/partial hospitalization, psychosocial rehabilitation, chronic mental health clinic services, and/or other services approved by the Secretary
    • Beneficiaries must be at risk of institutional care
    • Population targeting permitted
  5. Section 1915(c) waiver (optional):
    • Same services as available under Section 1915(i)
    • Beneficiaries must otherwise require institutional care
    • Secretary can waive regular program income and asset limits
    • Cost neutrality required (average per enrollee cost of HCBS cannot exceed average per enrollee cost of institutional care)
    • Enrollment caps permitted
    • Population targeting permitted
  6. Section 1115 waiver (optional):
    • Secretary can waive certain Medicaid requirements and allow states to use Medicaid funds in ways that are not otherwise allowable under federal rules for experimental, pilot, or demonstration projects that are likely to assist in promoting program objectives
    • Federal budget neutrality required
    • HCBS enrollment caps permitted”

These services can be targeted at a variety of beneficiary populations including such groups as seniors, seniors and adults with physical disabilities, individuals with developmental disabilities, individuals with HIV/AIDS, medical fragile technology dependent children, mental health, and TBI and spinal cord injuries.[25]  What is clear is that state Medicaid programs are attempting to rebalance and focus their spending on long term care towards services in the home and community as opposed to institutional care, and that personal care services play an important role in Medicaid.

For a comprehensive understanding of the services and populations that each State is covering under home and community-based services, readers are referred to the Kaiser Family Foundation reports referenced in note 23.

IV.   Conclusion:

The provision of personal care services and other services that address the social determinants of health in the public programs and under private health insurance is evolving and expanding.  What is clear is that there is now a growing understanding at both the state and federal government levels and in the private health insurance market that these services can play a vital role in reducing costs and improving health.  The expansion of the definition of optional supplemental benefits in the MA program, discussed, above, present significant potential opportunities in this area.  However, issues of compliance that have occurred in the past also make it critical that providers seeking to participate in this area understand both the potential benefits and pitfalls in the manner of any participation.

For more on this please check the presentation here given on this topic at the AHLA LTC conference March 2020

personal care servicesAnyone seeking advice in this area should contact Michael Cook[1] at mcook@lilesparker.com or (202) 298-8750 (office), (202) 361-2508 (cell)Michael is a partner and Co-chair of Liles Parker’s Health Care Practice Group.

[1] Michael Cook is a Partner and Co-chair of the Health Care Group of Liles Parker PLLC.  This article was prepared for the American Health Lawyers Association Conference on Long Term Care and the Law in 2020.

[2] Pub. L. 115-123 amending section 1852(a) of the Social Security Act

[3] Medicare Managed Care Manual, Chapter 4, section 30.1

[4] Announcement of Calendar Year (CY) 2019 Medicare Advantage Capitation Rates and Medicare Advantage and Part D Payment Policies and Final Call Letter (April 2, 2018) (“2019 Final Call Letter”), p. 207 https://www.cms.gov/Medicare/Health-Plans/MedicareAdvtgSpecRateStats/Downloads/Announcement2019.pdf

[5] Id. at 207-8

[6] Letter from Kathryn Coleman to Medicare Advantage Organizations and Section 1876 Cost Contract Plans, “Reinterpretation of ‘Primarily Health Related’ for Supplemental Benefits,” dated April 27, 2018 https://www.nahc.org/wp-content/uploads/2018/05/HPMS-Memo-Primarily-Health-Related-4-27-18.pdf

[7]https://www.cms.gov/newsroom/fact-sheets/speech-remarks-cms-administrator-seema-verma-medicare-advantage-and-prescription-drug-plan-spring.  While this guidance has been included only in sub-regulatory guidance to date, CMS recently published a proposed rule that, if adopted, will codify this re-interpretation into its regulations.  See 85 Fed. Reg. 9002, 9210 (February 18, 2020)

[8] Announcement of Calendar Year (CY) 2020 Medicare Advantage Capitation Rates and Medicare Advantage and Part D Payment Policies and Final Call Letter (April 1, 2019) (“2020 Final Call Letter”), p. 187 https://www.cms.gov/Medicare/Health-Plans/MedicareAdvtgSpecRateStats/Downloads/Announcement2020.pdf

[9] Id. at p. 190

[10] Id. See also 83 Fed. Reg. 16440, 16481-2 (April 16, 2018)

[11] See 2020 Final Call Letter at p. 188

[12] Additionally, a recently published proposed rule for Medicare Advantage Contract Year 2021 and 2022, if adopted, would allow plans to target additional chronic conditions. See 85 Fed. Reg. 9002, 9012.

[13] Letter from Kathryn Coleman to Medicare Advantage Organizations, “Implementing Supplemental Benefits for Chronically Ill Enrollees,” dated April 27, 2019

[14]https://www.cms.gov/Medicare/HealthPlans/HealthPlansGenInfo/Downloads/Supplemental_Benefits_Chronically_Ill_HPMS_042419.pdf.  As with the guidance on the new interpretation of primarily health related, the guidance on SSBCI has been sub-regulatory to date.  However, the proposed rule cited at note 7, if adopted, would codify much of this guidance into regulations.  See 85 Fed. Reg. 9002, 9213

[15] LTSS Services in Medicare Advantage Plans – The 2019 Market Landscape and the Challenges Ahead http://www.qa.milliman.com/insight/2019/LTSS-services-in-Medicare-Advantage-Plans/; Review of contract Year 2019 Medicare Advantage Supplemental Health Benefit Offerings https://www.bettermedicarealliance.org/sites/default/files/2018-12/20181207%20Milliman%20%20MA%202019%20Supplemental%20Benefits%20-%20Final.pdf

[16] Review of Contract Year 2020 Medicare Advantage Supplemental Healthcare Benefit Offerings https://www.bettermedicarealliance.org/sites/default/files/2019-11/Review_of_Contract_Year_2020_Medicare_Advantage_Supplemental_Healthcare_Benefit_Offerings.pdf

[17] See FBI Press Release, “More Thank 20 People Arrested Following Investigation Into Widespread Health Care Fraud in D.C. Medicaid Program,” February 20, 2014 https://archives.fbi.gov/archives/washingtondc/press-releases/2014/more-than-20-people-arrested-following-investigations-into-widespread-health-care-fraud-in-d.c.-medicaid-program

[18] See “12 Home Health Workers Indicted for $87 Million Medicaid Fraud,” Home Health Care News, November 27, 2018 https://homehealthcarenews.com/2018/11/12-home-health-workers-indicted-for-87-million-medicaid-fraud/); see also US Department of Justice Press Release, “Two More Defendants Plead Guilty in Multi-Million Dollar Home Health Care Fraud Conspiracy,” January 21, 2020 https://www.justice.gov/usao-wdpa/pr/two-more-defendants-plead-guilty-multi-million-dollar-home-health-care-fraud-conspiracy

[19] See US Attorneys Office for the District of Columbia Press Release, “Two former Personal Care Aides Sentenced to Prison for Defrauding Medicaid,” February 14, 2020 https://www.justice.gov/usao-dc/pr/two-former-personal-care-aides-sentenced-prison-defrauding-medicaid; see also US Attorneys Office for the District of Columbia Press Release, “Former Personal Care Aide Pleads Guilty to Health Care Fraud,” November 22, 2019 https://www.justice.gov/usao-dc/pr/former-personal-care-aide-pleads-guilty-health-care-fraud-1

[20] See “Medicaid Fraud Control Units: Investigation and Prosecution of Fraud and Beneficiary Abuse in Medicaid Personal Care Services,” HHS OIG Brief, OEI-12-16-00500 (December 2017) https://oig.hhs.gov/oei/reports/oei-12-16-00500.pdf; “Solutions to Reduce Fraud, Waste, and Abuse in HHS Programs: OIG’s Top Recommendations (July 2019) https://oig.hhs.gov/reports-and-publications/compendium/files/compendium2019.pdf; “OIG Calls for Additional Oversight of Home Health, Personal Care Service Providers,” Home Health Care News (July 25, 2019) https://homehealthcarenews.com/2019/07/oig-calls-for-additional-oversight-of-home-health-personal-care-service-providers/

[21] Section 12006(a) of the Cures Act (2016)

[22] See CMCS Information Bulletin from Calder Lynch, “Additional EVV Guidance,” dated August 8, 2019

[23] See “Key State Policy Choices About Medicaid Home and Community-Based Services,” M. Musumeci, M. O’Malley Watts, and P. Chidambaram, Kaiser Family Foundation (February 2020) https://www.kff.org/report-section/key-state-policy-choices-about-medicaid-home-and-community-based-services-issue-brief/; “Medicaid Home and Community-Based Services Enrollment Spending, M. O’Malley Watts, M. Musumeci, and P. Chidambaram, Kaiser Family foundation (February 2020) https://www.kff.org/medicaid/issue-brief/medicaid-home-and-community-based-services-enrollment-and-spending/

[24] See note 23, “Medicaid Home and Community-Based Services,” supra, Table 1 at p.4

[25] Id. at pp. 8-9

Overview of Dental Claims Audits and Investigations by Medicaid and Private Payors in 2019

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Audits of Dental Claims and Dental Fraud Investigations are Increasing.(March 4, 2020):  Many dentists and dental practices around the country are glad that 2019 is behind us.  Last year was a banner year for law enforcement investigators and administrative auditors of dental claims.  Federal and State prosecutors around the country actively pursued both civil and criminal cases against individual dentists for a variety of offenses.  Notably, a number of the defendants prosecuted by the government were first identified as engaged in wrongdoing by Unified Program Integrity Contractors (UPICs) conducting Medicaid dental claims audits and private payor Special Investigative Units (SIUs) reviewing dental claims submitted by a practice for payment.  In this article, we examine the administrative, civil and criminal cases that were brought against dentists in 2019 in order to identify the conduct that led to the imposition of overpayments, the imposition of civil penalties by the government, and in some instances, the criminal prosecution of dentists for various violations of law.

I.   Administrative Dental Claims Audits Expanded in 2019:

  • Medicaid Claims Audits.

Almost a decade ago, the enactment of the Affordable Care Act[1] made it possible for state Medicaid programs to greatly increased their eligibility criteria and the scope of services offered to program beneficiaries. While eligible child enrollees were already receiving dental benefits, in many states, the number of adults qualifying for Medicaid dental benefits doubled. Not surprisingly, as Medicaid dental services have grown, the costs associated with these benefits also greatly expanded.  In response, Federal and State authorities have steadily devoted ever increasing resources to the audit and investigation of improper dental business, coding and billing practices.

The Centers for Medicare and Medicaid Services (CMS) has engaged a number of third-party, UPIC contractors (such as Qlarent, AdvanceMed, the CoventBridge Group, and SafeGuard Services LLC) to perform program integrity audits of Medicaid dental claims around the country.  It is important to keep in mind that UPICs are expressly required to refer suspected cases of fraud and abuse to law enforcement for further investigation and possible prosecution.  UPICs are also required to recommend the revocation of participating providers and suppliers that are non-compliant with Medicare regulations and policies.

Notably, several large private dental management companies, such as DentaQuest and Delta Dental also currently serve as dental plan administrators for various state Medicaid Advantage dental plans around the country.[2]  SIUs at DentaQuest, Delta Dental and other dental plan administrators have implemented a number of measures to identify and investigate instances of suspected fraud or improper dental billing practices.

  • DentaQuest, Delta Dental and Other Private Payor Dental Audits.

DentaQuest, Delta Dental and a number of other payors serve as administrators for private dental plans and various employer-sponsored dental insurance policies around the country.  In 2019,  private dental payors greatly expanded the scope and frequency of audits conducted by their SIUs.  Additionally, these private dental payors greatly increased their use of “prepayment review” and “payment hold” actions, both of which can adversely impact a dental practice’s cash flow and possibly cripple a practice’s ability to operate.

II.   Common Reasons for Denial Cited in Administrative Dental Audits by UPICs, DentaQuest and Delta Dental:

In 2019, the following reasons for denial were commonly cited by UPICs, DentaQuest and Delta Dental in audits we handled:

    • Failure to sign progress notes (either electronically or by hand). At first glance, you may feel that the failure to electronically-sign a dental progress note is a mere technical deficiency. Unfortunately, that isn’t necessarily the case, CMS contractors (such as UPICs) are actively denying dental claims if the associated progress note has not been signed by the rendering dentist. As set out in the Medicaid Program Integrity Manual[3] reflects, unsigned entries (referring to electronic and handwritten), shall be excluded from consideration when performing [a] medical review.”  Similarly, in several of the private dental payors cases that we handled, the payors denied claims that were not supported by signed progress notes and / or orders.  As a final point in this regard, please keep in mind that most State Dental Practice Acts include specific requirements mandating that progress notes, orders and treatment records be signed by the licensed dental professional who performed the service.
    • Billing for dental services not rendered. Unfortunately, this reason for denial has been a recurring theme cited by UPICs and SIUs alike when auditing dental records and claims for many years.  For example, recent private payor audits conducted have alleged that multiple instances were found where dentists billed for periodontal services (CDT Code D4331 – periodontal scaling and root planing) that were not performed based on the auditor’s review of the patient dental treatment records and radiographs in the fileSimilarly, insufficient documentation has been cited when denying these services based on failure to establish medical necessity. In these instances, the auditors noted that in order to diagnose and treat periodontal disease, dated pre-operative diagnostic quality radiographs and pre-operative periodontal charting is needed. Without these, periodontal disease cannot be properly diagnosed and periodontal scaling and root planing should not be conducted.
    • 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 recent 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 policy to policy. Additionally, the list of non-covered services under a specific policy may change from year-to-year. In any event, it is important that dental providers regularly check to ensure that the services being provided qualify for coverage and payment.
    • Misrepresentation of the provider of the dental service. This type of billing error is still commonly found in both dental and medical practices around the country. In the cases we have seen, “fraud” wasn’t the reason for the underlying misrepresentation on the ADA Claims form. In most instances, it was merely a matter of a credentialing delay. In other cases, dental practices appeared to believe that they were permitted to bill for the services under a concept similar to Medicare’s “Incident-To” ruleAlthough we have not seen a dental misrepresentation case of this type referred for criminal prosecution, it is important to remember that the ADA Dental Claims form is being electronically submitted to the health plan for payment.  Depending on the facts, an aggressive prosecutor could argue that such conduct constitutes were fraud. 18 U.S.C. §1343.
    • Unlicensed individuals found to have performed dental procedures. Generally speaking, we have seen two categories of cases where this has occurred. In the first example, a licensed professional failed to renew his Because of this administrative error, the dentist inadvertently performed dental procedures while his license had lapsed.  In the second example, a dental assistant or dental hygienist was found to have performed one or more dental procedures that were outside of their scope of practice. Both of these examples typically lead to claims denials.  They may also result in complaints to the State Dental Board.
    • 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 non-government administered plan, the unsupported waiver of these amounts may constitute a breach of contract. However, if the dental plan is Federally funded, such a failure may constitute a violation of the Anti-Kickback Statute.
    • Misreporting dates to circumvent calendar year maximums or time limitations. The misreporting of dates in an effort to evade calendar year maximums and / or time limitations may constitute a violation of one or more State and Federal fraud statutes.
    • Failure to properly document support for medical necessity. Properly documenting medical necessity continues to be a problem. Over the last year, our reviews have found that there was often little detail provided to support medical necessity of pediatric dental treatments provided. For example, prophylaxis was typically provided because it was medically required. Although dental notes often indicated that plaque was visible, the notes often failed to  specify any areas of build-up. Also, the level of decay was typically not included to support services such as fillings and crowns.
    • 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 should be dated and these dates should correspond with the date listed as the date of authorization noted on the claim form. Many of the dates of authorization for the “signatures on file” on the claim form were after the date of service, which is an error cited in recent audits.  

 Have you received a request for dental records from a government or private payor?  Take care.  You don’t want to inadvertently turn an administrative or civil audit into a criminal case.  Dental records, progress notes, x-rays and other documents must be signed and dated by the health care provider at the time the services are rendered or conducted.  In conducting your review, did you find that the claims documentation is legible and complete?  If not, change your practices now.  Wholesale efforts to go back and supplement incomplete documentation may constitute obstruction of justice if incorrectly handled.  Never make changes to a patient’s documentation or dental records without first discussing the issues presented with legal counsel so that you can ensure that a third party reviewing the updated records will not be misled as to the nature of the changes or revisions AND when the changes or revisions were made

In other words, your records must accurately show when changes, corrections or additions were made to the patient’s dental records.  Late entries to a record must be dated as such.  More than likely, government and private payor auditors will give very little (if any) credit to late entries or supplemental records unless the service being supplemental was recently performed.   The falsification of information in a patient’s dental record (or in other records presented to the government, its agents or private payor auditors) can constitute a criminal violation and could lead to much bigger troubles for you and your dental practice than a mere overpayment.

III.   Civil Investigations / False Claims Act Dental Cases Brought in 2019:

Last fiscal year, the Federal government won or negotiated over $3 billion in judgments and settlements under the civil False Claims Act. Of the $3 billion in settlements and judgments recovered by the Department of Justice this past fiscal year, $2.6 billion involved the health care industry. It is worth noting that these recoveries only reflect Federal funds, millions of dollars more were also recovered for State Medicaid programs.   Despite the fact that literally billions of dollars were recovered from health care providers and suppliers using the False Claims Act, very few of the settlements and judgments were related to dentists, dental practices and / or dental management companies.  Examples of False Claims Act dental recoveries made in 2019 include:

    • December 2019. In this case, the government alleged that from 2014 through 2015, the defendant dentist presented claims to the State Medicaid program for dental services that were never provided.  Connecticut’s Superior Court ordered the defendant to pay treble damages, along with a civil penalty of $1.5 million.
    • March 2019. In this case dental fraud case, after reviewing a sample of patient dental records, the State Attorney General’s Office found that a dental practice has defrauded the State Medicaid program.  To resolve the allegations, the defendant dentists agreed to pay $1 million under the State False Claims Act and agreed to be voluntarily excluded from participating in the Medicare and Medicaid programs.

 IV.   Criminal Prosecutions of Illegal Dental Business Practices in 2019:

As the case overviews below reflect, both Federal and State prosecutors aggressively prosecuted dentists for their illegal conduct in 2019.  Examples of the criminal prosecutions pursued in dental cases last year include:

    • October 2019.  Virginia.  In this case, a Virginia-licensed dentist was sentenced to nearly eight and a half years in prison for conspiracy to distribute prescription opioids and muscle relaxant pills without a legitimate medical purpose.  The government alleged that the defendant was involved in an elaborate scheme to prescribe opioids such as hydrocodone and oxycodone pills for his personal use and the use of his co-conspirators
    • October 2019. Missouri. Federal prosecutors allege that two dentists at a Missouri dental practice participated in two different schemes to defraud Medicaid.  In the first scheme, patients were allegedly provided a $50 Ortho-Tain mouth pieces designed to straighten teeth but the Medicaid program was then billed $700 for a “speech aid prosthesis.” In the second scheme, federal prosecutors say the dentists provided dentures and other dental services to patients who did not qualify for Medicaid reimbursement and then submitted claims to Medicaid anyway Federal prosecutors say these two schemes netted $885,748.
    • September 2019. Maryland. The dental practice owner (and former dentist) at a Maryland practice agreed to pay over $5.4 million in restitution and nearly $4 million in a forfeiture money judgment after pleading guilty to health care fraud for involvement in a $5 million-plus Medicaid fraud scheme. Authorities said the former dentist (who is currently serving a 16-year sentence for sexual assault of patients), used his dental practices to submit fraudulent claims to D.C. Medicaid for thousands of unprovided provisional crowns, which resulted in around $5.4 million worth of improper payments from the program between August 2012 and February 2016.
    • August 2019. Illinois. An Illinois dentist was indicted on 13 counts of health care and wire fraud after prosecutors say he billed Illinois Medicaid hundreds of thousands of dollars for dental procedures he never performed. The U.S. Attorney’s Office for the Southern District of Illinois stated. In all, it is alleged that Kim collected more than $700,000, which prosecutors want paid back to the state.
    • July 2019. Arkansas.  In the case, an Arkansas dentist received a five-year suspended prison term and was ordered to pay $33,383.05 in restitution, $100,149.15 in damages and $2,500 in fines after pleading guilty to defrauding Medicaid. Authorities said the dentist submitted more than 3,100 fraudulent claims to Medicaid for X-rays and various dental services between September 2015 and December 2017, which resulted in $186,461 worth of improper payments from the program.
    • June 2019. Tennessee.  A Tennessee dentist and practice owner was sentenced to two years and nine months in prison and was ordered to pay $965,448 in restitution after pleading guilty to conspiracy to commit health care fraud for orchestrating a scheme to defraud TennCare and other health care benefit programs. Authorities said the dentist caused the submission of fraudulent claims to TennCare and other health benefit programs for unprovided or incomplete dental work from November 2013 to January 2018.
    • June 2019. California.  A California dentist based out of Los Angeles was sentenced to more than three years in prison for health insurance fraud and was ordered to pay restitution of more than $1.4 million after pleading guilty to submitting fraudulent claims to multiple private insurers for unprovided dental care services.
    • April 2019.  New Jersey.  An unlicensed dentist from New Jersey was convicted in a $2 million fraud case in New York.  The unlicensed dentist was sentenced to two years in prison and ordered to pay restitution of almost $1 million after being convicted for his role in the $2 million health insurance fraud scheme.  Prosecutors allege that the unlicensed dentist worked as a dentist in Manhattan and conspired with others to pay kickbacks to patients and submit fraudulent claims to health insurers for unprovided dental services or services. 

V.   Steps a Dental Practice Can Take to Reduce Regulatory / Statutory Risk:

  • Don’t Ignore a Request for Dental Records from a Medicaid or Private Payor Auditor? 

It has been our experience that a significant portion of all requests for dental records and claims information are either overlooked or ignored by a dental practice.  This error can result in a payor terminating your agreement.   Legal counsel can often intervene on your behalf and obtain an extension of time in which to submit the requested documents. We have seen several cases where a dental practice’s failure to response to the payor’s records request in a timely fashion resulted in the automatic denial of the claims being audited.

  • Implement an Effective Dental Compliance Program.

First and foremost, it is recommended (and if you take Medicaid it is required by law) that you develop and implement an effective Compliance Program.  This would include an aggressive plan to conduct periodic internal audits of your dental claims to ensure that the services have been provided, fully documented, were medically necessary and were coded / billed properly. When was the last time you conducted an internal dental claims audit and examined whether the services you are providing fully reflect medical necessity requirements, are documented to meet the requirements of the payor, and are properly coded and billed? What did you find?  Who conducted the audit, someone from your dental practice, or an outside dental consultant?  Be sure and engage any outside dental consultant through legal counsel.

  • Screen Your Employees, Contractors and Agents Against Available Screening Databases.

Dental providers should screen their applicants, clinical staff, administrative staff, contractors, vendors and agents on a monthly basis.  At this time, there are more than 40 different databases that need to be checked.  These databases include:

(1) List of Excluded Individuals and Entities (LEIE). Maintained by HHS-OIG.
(2)
System for Award Management (SAM). Maintained by the General Services Administration.
(3)
40 State Medicaid Exclusion Registries. Maintained by either the State Attorney General’s Office or the State Medicaid Fraud Control Unit (MFCU).

Questions regarding your screening obligations?  Call the helpful folks at Exclusion Screening, PLLC with any screening questions.  They can be reached at: 1 (800) 294-0952

  • Call a Qualified Health Law Attorney for Help in Responding to a Dental Audit.

 Hopefully, you won’t face a Medicaid or private payor dental audit in the near future.  If you do, it is essential that you engage qualified legal counsel to guide you through the process.  A knowledgeable, experienced lawyer can interact directly with the payor and work towards a reasonable resolution of the case.  Legal counsel can also provide guidance with respect to payor documentation, coding and billing requirements. Importantly, the Liles Parker attorneys who would represent you and your practice in a dental audit are both experienced health lawyers AND have achieved certification as Certified Medical Reimbursement Specialists (CMRSs) by the American Medical Billing Association (AMBA) and / or Certified Professional Coders (CPCs) by the American Academy of Professional Coders.

Are you facing a dental claims audit or investigation? We can help.  For a free consultation, please call Robert at:  1 (800) 475-1906.

Dental Claims AuditsRobert W. Liles serves as Managing Partner at the health law firm, Liles Parker, Attorneys and Counselors at Law.  Liles Parker attorneys represent health care providers and suppliers around the country in connection with dental claims audits and investigation.  Is your dental practice being audited? Give us a call.  For a free initial consultation regarding your situation, call Robert at: 1 (800) 475-1906.

[1] Signed into law by President Obama on March 23, 2010.

[2] As Medicaid dental rolls have increased, many states have chosen to engage a third-party to administer their Medicaid dental programs, such as Delta Dental or DentaQuest.  At last count, Delta Dental administers dental programs serving more than 80 million Americans, many of whom are participants in a government-sponsored program.  Similarly, DentaQuest administers dental programs serving over 25 million beneficiaries, most of whom are covered by a government-sponsored program.

[3] Medicaid Program Integrity Manual, 1.7.5 “Medical Review for Program Integrity Purposes.”

Investigations of Medicaid Dental Fraud in Texas

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Investigations of Medicaid dental fraud in Texas are accelerating. (July 1, 2014): Law enforcement authorities are actively investigating and prosecuting health care providers for crimes based upon allegations of Medicaid dental fraud in Texas. When looking for fake billing to the Medicaid program, investigators have historically targeted hospitals and doctors, but increasingly dentists have come under watch. In Texas, new measures have been adopted to investigate Medicaid dental fraud.

In response to millions of dollars in dental and orthodontic Medicaid fraud recently uncovered in the state, the Texas legislature passed H.B. 3201, effective September 1, 2013. This law created a new process for investigating complaints against dentists that is similar to the process the Texas Medical Board uses to investigate complaints against physicians. It also adds requirements to the licensing requirements for dentists.

I.  Process for Investigating Complaints Medicaid Dental Fraud in Texas:

H.B. 3201 establishes a new system for dental patients to file complaints and to track Medicaid providers. It also requires that within 60 days of a complaint being received, the Texas State Board of Dental Examiners must complete an investigatory process and make a decision.  Prior to the new regulations, the board had been taking an average of more than 400 days to resolve complaints.

In the past, the seven-member dental board reviewed each case individually with the help of volunteer experts. Under the new process, staff members including dentists, lawyers, investigators, licensing specialists and support staff will review complaints and conduct preliminary investigations to determine if violations occurred.

In cases where an investigation is pursued, complaints involving standard of care are referred to a new expert panel comprising dentists and dental hygienists. The dental board will hear all others investigations. The board will make final decisions on all cases involving alleged violations and will review the staff’s dismissal of other complaints.

II.  Licensing Requirements:

HB 3201 also creates a $55 surcharge added to the cost for dentists who are obtaining or renewing their licenses. These extra funds will allow the dental board to hire new staff members and an expert panel of dentists to review complaints.

Dentists will also be required to submit more information when they apply for a license. When completing their yearly registration before, dentists were only required to list the name of the dental practice, its physical address, hours worked there per week, number of weeks worked per year, the type of practice and the number of hygienists and assistants. Under the new law, registration applicants must include more information on the license holder, whether the dentist is a provider under Medicare, and whether the licensee is affiliated with a dental service organization.

III.  Medicaid Fraud Control Unit of the Office of the Texas Attorney General:

The Texas Attorney General’s Medicaid Fraud Control Unit is also pursuing Medicaid fraud. The department conducts criminal investigations of Medicaid providers who are suspected of cheating the Medicaid Program. The unit employs investigators, auditors and attorneys who conduct investigations and assist in the prosecution of Medicaid providers who defraud the system or abuse the elderly.

IV. Recent Example of Medicaid Dental Fraud in Texas:

Last year, the Medicaid Fraud Unit, in conjunction with the FBI, led an investigation which resulted in a Texas dentist pleading guilty to a Medicaid fraud scheme. The dentist had practiced pediatric dentistry and admitted that he made false and fraudulent statements and entries on patient records, which caused Medicaid to be billed for, and pay, at least $120,000 for services falsely claimed to have been performed. He faced a maximum statutory penalty of five years in federal prison, a $250,000 fine, and restitution. In February of this year, the dentist was sentenced to 18 months in federal prison and was ordered to pay $57,969 in restitution.

V.  Final Remarks:

Especially in light of new legislation, it is essential that dentists participating in any state Medicaid dental programs review their practices to ensure that they are complaint and have preventative measures in place. Federal and state enforcement investigations of possible incidents of dental fraud have steadily increased in recent years, and there is every indication that these efforts will continue to rise.

Healthcare LawyerRobert W. Liles, Esq., serves as Managing Partner at Liles Parker, Attorneys & Counselors at Law.  Liles Parker attorneys represent dentists, orthodontists, and other health care providers around the country in connection with both regulatory and transactional legal projects. For a free consultation, call Robert at:  1 (800) 475-1906.

SIU Dental Audit Reviews by DentaQuest, Delta Dental and Cigna Can Ultimately Lead to Criminal Prosecution and Imprisonment.  Are Your Dental Office’s Medical Necessity, Documentation, Coding and Billing Practices Compliant?

October 16, 2019 by  
Filed under Dental Audits & Compliance

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Dental Claims Audits are Ongoing(October 16, 2019):  A Federal District Court Judge recently sentenced a Murfreesboro, TN dentist to prison and ordered that he pay restitution to TennCare (Tennessee’s Medicaid program).  Regrettably, the types of improper billing practices cited by the government in the criminal Information filed against the defendant dentist aren’t that uncommon.  This recent prosecution serves as an excellent case study of why it is essential that dentists and dental practices take steps to ensure that their medical necessity, documentation, coding and billing practices fully comply with applicable regulatory requirements and contractual obligations.  In addition to reviewing the types of improper conduct that led to the government’s criminal pursuit of the defendants in this case, this article examines how a Special Investigations Unit dental audit (SIU dental audit) by auditors and investigators at DentQuest, Delta Dental and Cigna can ultimately lead to a referral to State or Federal law enforcement officials.  Once a referral is made, you and your dental practice may be subject to criminal investigation and prosecution.

I.  SIU Dental Audit Reviews by DentaQuest, Delta Dental and Cigna Can Result in a Referral to State or Federal Law Enforcement Officials:

In this case, a Tennessee licensed dentist reportedly owned a dental practice with three locations in Murfreesboro, TN and a single location in Lebanon, TN.   The dental practice treated patients that were covered by private-payor dental plans and Medicaid.  Payors billed by the dental practice included, but were not necessarily limited to:  DentaQuest (DentaQuest served as the administrator to the TennCare program – Tennessee’s Medicaid program), Delta Dental and Cigna.[1]  Starting in late 2014, a number of payors initiated an SIU dental audit of the defendant’s multi-location dental practice.  These included:

December 2014. DentaQuest SIU Dental Audit.   In late 2014, DentaQuest conducted an audit of select 2013 and 2014 claims submitted to the Medicaid payor plan by the practice.  After reviewing the claims, DentiQuest alleged that the practice claiming was:

    • Billing for crowns at an unusually high rate; and
    • Impermissibly billing DentaQuest for services provided by non-credentialed dentists.

Importantly, the defendant was allegedly advised of these allegations both during and after the DentaQuest audit.

December 2016 Delta SIU Dental Audit.  Delta Dental conducted an audit of 2015 and 2016 claims submitted to the payor for coverage and payment. At the conclusion of the dental claims audit, Delta Dental alleged that the dental practice:

    • Billed for dental services during the period January 2015 through May 2016 that were allegedly not provided.

Both during and after the Delta Dental audit, the defendant dentist and his office manager were allegedly advised of the allegation that the practice had billed the payor for services that were not provided.

August 2016 Tennessee Bureau of Investigation Probe.  In August 2016, the defendant dentist and his office manager reportedly learned that the Tennessee Board of Investigation had initiated an investigation of the dental practice’s billing conduct.  Despite the fact that the defendants supposedly learned of the State’s ongoing investigation, they allegedly:

    • Directed employees to continue to bill for work that had not been performed.

As the summary findings of these dental claims audits reflect, the defendant dentist and the practice administrator were repeatedly advised by dental plan sponsors that a number of medical necessity, coding and documentation deficiencies had been identified.  Despite the fact that the defendants were allegedly put on actual notice of these improper coding and billing practices, the practice appears not to have taken remedial steps to correct the conduct.

II.  Overview of the Fraudulent Dental Billing Conduct Alleged by the Government:

The criminal Information filed against the defendant dentist outlines a number of documentation and billing practices that allegedly resulted in the submission of false and fraudulent dental claims to the DentaQuest (TennCare Medicaid), Delta Dental and Cigna payor plans. Not surprisingly, the types of improper conduct that the government chose to criminally prosecute are far from uncommon.  In fact, many of the dental audits we have defended on behalf of dental practices around the country have involved at least one of the documentation, coding and / or billing problems that ultimately led to the criminal referral in this case.  As both government and private payor SIU dental audit representatives will readily attest, when it comes to dental claims fraud, the old adage “. . . there is nothing new under the sun” certainly applies.[2] The types of improper conduct alleged by the government are outlined below:

Summary of Allegation

Conduct Cited by the Government

Billing for Services Not Rendered.The government alleged that the defendants submitted false and fraudulent claims to health care benefit programs for dental work that had not been completed.
Falsifying Dates of Service.  The government alleged that the defendants falsified the dates of service to make it appear as though the dental service was rendered within the timeframe required by a health care benefit program or after preauthorization was obtained from a health care benefit program so that the dental claims would be paid.
Falsifying the Identity of the Individual Who Rendered the Dental Services.The government alleged that the defendants falsified claims to make it appear as though the services had been rendered by a dentist who was credentialed to treat patients at a particular practice location, when in fact the services had been provided by a non-credentialed dentist or at a different practice location.[3]
Falsifying Dental Records.The government alleged that the defendants falsified supporting documentation and records, such as x-rays, in order to have the claims paid.
Engaging in Upcoding.The government alleged that the defendants added false language to the claim narratives to make it appear as though the practice had provided more expensive services than the services that were actually provided.
Obstruction.The government alleged that the defendants falsified took steps to conceal the fraud, including:  (1) Disciplining or firing employees who asked questions about whether the billing practices were correct or legal, (2) Instructing practice employees to tell patients and representatives from insurance companies that if the practice had billed for work that had not been done, it was simply a billing error and would be corrected, when, in fact, it was the routine practice of the organization.
False Statements / Obstruction.The government alleged that the defendants falsified took steps to make it appear as though the practice administrator was solely responsible for the fraudulent billing practices at the practice and that the defendant dentist was supposedly unaware of the fraudulent billing practices, when in fact, both individuals knew about the conduct and caused the practice to submit false and fraudulent claims.

 III.  Criminal Charges Brought Against the Defendant Dentist and Disposition of the Case:

The defendant dentist in this case entered into a plea bargain with the Federal government and agreed to waive his right to an Indictment.  As the pleadings in this case reflect, in November 2018, the defendant dentist was charged in a criminal Information with one count of criminal conspiracy under 18 USC § 1349.[4]   In June 2019, the defendant dentist was sentenced to almost three years in prison and ordered to pay almost one million dollars in restitution to the TennCare Medicaid program.[5]

How can you and your dental practice avoid engaging in the types of improper conduct identified by the government in this case? As a first step, your practice needs to develop, implement and adhere to the both the letter and the spirit of an effective compliance program.  An overview of the compliance program process is set out below.

IV.  Every Dental Practice Must Develop and Implement an Effective Compliance Program:

As you will recall, the Department of Health & Human Services (HHS), Office of Inspector General (OIG), issued voluntary Compliance Guidance for Individual and Small Group Physician Practices” almost 20 years ago, in 2000.[6]  As the seven element compliance guidance reflects, the term “physician” is defined to include “a doctor of dental surgery or dental medicine.” [7] With the passage of the Affordable Care Act[8]  in 2010, dental practices and other health care providers participating in Federal health benefits programs were now required to establish a compliance program as a condition of their enrollment in the Medicare, Medicaid, and Children’s Health Insurance Program (CHIP) payor plans.  Under § 6401(b)(5) of the statute:

“Subtitle E—Medicare, Medicaid, and CHIP Program Integrity Provisions

SEC. 6401. PROVIDER SCREENING AND OTHER ENROLLMENT REQUIREMENTS UNDER MEDICARE, MEDICAID, AND CHIP.

Sec. 6401(a)(7):  COMPLIANCE PROGRAMS.—On or after the date of implementation determined by the Secretary under subparagraph (C), a provider of medical or other items or services or supplier within a particular industry sector or category shall, as a condition of enrollment in the program under this title [Medicare], title XIX [Medicaid], or title XXI [CHIP], establish a compliance program that contains the core elements established under subparagraph (B) with respect to that provider or supplier and industry or category.

. . . .

Sec. 6401(b)(5):  COMPLIANCE PROGRAMS.—The State requires providers and suppliers under the State plan or under a waiver of the plan to establish, in accordance with the requirements of section 1866(j)(7), a compliance program that contains the core elements established under subparagraph (B) of that section 1866(j)(7) for providers or suppliers within a particular industry or category.”  (emphasis added).

From a practical standpoint, dental practices have been slow to make the transition from a “voluntary” to a “mandatory” approach towards compliance. In January 2017, the OIG and compliance professionals of the Health Care Compliance Association (HCCA) met and made modifications to the original seven elements identified in the 2000 compliance program guidance.  The seven elements were modified to include the following:

  1. Standards, Policies, and Procedures.
  2. Compliance Program Administration.
  3. Screening and Evaluation of Employees, Physicians, Vendors and other Agents. 
  4. Communication, Education, and Training on Compliance Issues. 
  5. Monitoring, Auditing, and Internal Reporting Systems. 
  6. Discipline for Non?Compliance.
  7. Investigations and Remedial Measures.[9]

 If the defendants had properly developed, implemented and diligently worked to follow an effective dental practice compliance program, it is highly unlikely that the deficiencies identified by the government would have occurred (assuming, of course, that the defendants would have worked to comply with applicable statutory and regulatory requirements).

V.  The Possible Impact of an SIU Dental Audit on Your Dental Practice:

Assuming that your dental practice does not participate in the Medicare program[10] (but does participate in the Medicaid program), a wide variety of audit entities may show up at your door to perform an unannounced audit or send you a written notice of audit.  Audit entities that may initiate a review of your dental claims include:

Your Dental Practice May be Audits by Medicaid UPICs, Medicaid RACs, State Medicaid Fraud Control Units (MFCUs) and Private Payor Special Investigation Units (SIUs).

It is important to keep in mind that many of these audit entities have overlapping areas of responsibility.  As a result, it is entirely possible that one audit entity (for instance, a Unified Program Integrity Contractor (UPIC)) may decide to look at your 2015 Medicaid dental claims, while a completely different entity (such as Medicaid Recovery Audit Contractor (Medicaid RAC)) could audit your 2016 Medicaid dental claims.  For instance:

  • UPIC / Medicaid RAC Audits. On the government side, your dental practice’s Medicaid claims may be audited by a UPIC or a Medicaid RAC working for the Centers for Medicare and Medicaid Services (CMS).

 

  • State MFCU Audits. Since the Medicaid program is jointly funded by the Federal and State governments, your Medicaid claims may also be audited by your State’s Medicaid Fraud Control Unit (MFCU).

 

  • Audits by a Private Company Administrator of the Medicaid Program. If a private payor plan (such as DentaQuest) is serving as the administrator of the State Medicaid program, the private payor Special Investigations Unit (SIU) may initiate an audit of your Medicaid claims

 

  • Private Payor Audits. To the extent that your dental practice is a participating provider in one or more private dental payor plans, each of these private payor plans has an in-house SIU that is tasked with identifying and taking appropriate administrative action against providers and suppliers engaged in improper conduct. If a SIU identifies conduct that it believes may constitute fraud, it may choose to make a referral to law enforcement for further investigation and possible criminal prosecution.

In the case discussed above, the Special Investigation Units (SIU) of DentQuest, Delta Dental and Cigna initiated audits of the dental practice’s claims.   A private payor’s SIU is typically comprised of health care auditors and investigators, many of whom previously worked for Federal or State law enforcement agencies.  If evidence of wrongdoing is found by the SIU, the private payor may decide to take an administrative action, such as place a dental provider on prepayment review or terminate a dental provider from their payor program.  To the extent that an alleged overpayment is identified by the SIU, it may send a demand letter to a dental provider.  This ultimately could lead to the initiation of a collection action in civil court by the private payor.  In a worst case scenario, if an SIU agent identifies evidence of actual fraud (as opposed to conduct that is indicative of a mistake, error or an accident), the unit may choose to make a referral to the government for further investigation and possible criminal prosecution.

As set out in the background discussion (Section I), the dental practice in the instant case underwent several audits over a fairly short period of time.  The audits conducted included reviews by DentaQuest (as the administrator for TennCare’s Medicaid dental program), Delta Dental and Cigna.  The Tennessee Bureau of Investigation subsequently initiated its own investigation of the dental office’s billing practices.  After concluding their reviews, a criminal referral was made to the U.S. Attorney’s Office.  Federal prosecutors then initiated criminal proceedings against the dentist practice owner and the practice administrator.

VI.  Responding to a DentaQuest Audit, Delta Dental Audit or Cigna Audit of Your Dental Claims:

The government does not expect you to be perfect with respect to your documentation, coding and billing practices.  Nevertheless, the government does expect you to take reasonable steps to prevent the occurrence of improper billing practices. The development and implementation of an effective compliance program is an integral part of your dental practice’s program integrity efforts.  Unfortunately, even if you diligently work to stay within the four corners of the law, mistakes will still be made and your dental claims will still be subject to audit by a State Medicaid program, DentaQuest, Delta Dental, Cigna and other dental payors.  How should you respond if you are audited by a government or private payor?

  • Call an Experienced Health Lawyer for Assistance. Effectively responding to a government or private payor audit of your dental claims is essential if you hope to reduce the possible adverse effects of an audit.  An experienced health lawyer can walk you through the process and interact directly with the payor to seek an extension of the deadline to submit dental records and advise you on the documentation, coding and billing requirements that are required by a given payor.  Notably, the Liles Parker attorneys who would represent you and your practice in a dental audit are both experienced health lawyers AND have achieved certification as Certified Medical Reimbursement Specialists (CMRSs) by the American Medical Billing Association (AMBA) and / or Certified Professional Coders (CPCs) by the American Academy of Professional Coders.

 

  • Don’t ignore a SIU dental audit of your claims. It has been our experience that approximately 20% of all dental audit requests are either ignored by a dental practice or were set aside for later review and then got lost in the ever-growing pile of administrative correspondence received by a dental practice.  Don’t allow this to happen.  Most payors will give a dental practice a deadline to submit any responsive, supporting dental records.  This submission deadline can be as little as a few days to as much as 30 days.  If the payor does not receive the requested records by the deadline, it will automatically deny the dental claims.

 

  • Are there indications that the government or private payor intends to try and extrapolate damages? If a payor describes the group of dental medical records requested as a “statistically relevant sample” or uses similar descriptive terminology, call your legal counsel.  While not typically seen in private payor audits, we have seen numerous instances where a private payor has attempted to extrapolate any damages identified in connection with their audit.  Depending on applicable law and the terms of your contract with the payor, your legal counsel may be able to get the extrapolation dismissed.  If the payor does, in fact, have the authority to extrapolate damages, Liles Parker attorneys will often work with a statistical expert to conduct a preliminary assessment of whether or not the sample selected is, in fact, a sample that is representative of the universe of dental claims at issue.

 

  • Assemble the dental records requested. Take the time to assess the specific claims at issue and the supporting documentation in each file.  Are there additional places (e.g., files in storage) where additional supporting documentation may be kept?  If the documentation appears to be incomplete, you may be able to supplement the records with an affidavit. Are there any referring or ancillary providers that might have supporting documentation (e.g., referrals or orders from another dental professional, laboratory or X-ray test result)?

 

  • Retain duplicates of any information that you submit to the SIU dental auditor. Should you choose to go it alone and not be represented by legal counsel, you need to make sure that you secure a complete copy of the documentation sent to the payor.  It should be kept separate from your working files.  Should an appeal prove necessary, you will need to know the information on which the payor based its denial decision.

 

  • Don’t turn an administrative or civil audit into a criminal case. Dental records, progress notes, x-rays and other documents must be signed and dated by the health care provider at the time the services are rendered or conducted.  In conducting your review, did you find that the claims documentation is legible and complete?  If not, change your practices now.  Wholesale efforts to go back and supplement incomplete documentation may constitute obstruction of justice if incorrectly handled.  Never make changes to a patient’s documentation or dental records without first discussing the issues presented with legal counsel so that you can ensure that a third party reviewing the updated records will not be misled as to the nature of the changes or revisions AND when the changes or revisions were made.  In other words, your records must accurately show when changes, corrections or additions were made to the patient’s dental records.  Late entries to a record must be dated as such.  More than likely, government and private payor auditors will give very little (if any) credit to late entries or supplemental records unless the service being supplemental was recently performed.   The falsification of information in a patient’s dental record (or in other records presented to the government, its agents or private payor auditors) can constitute a criminal violation and could lead to much bigger troubles for you and your dental practice than a mere overpayment.

Private payor SIUs are an important source of referrals for State and Federal prosecutors. Your compliance with a payor’s medical necessity, documentation, coding and billing requirements will be carefully reviewed by a SIU if your dental claims are subjected to an audit by the payor’s anti-fraud unit.  If evidence of criminal fraud is identified, there is real possibility that your conduct will be referred to the government for further investigation and possible prosecution.  Your adoption and implementation of an effective compliance program will greatly reduce your level of risk.  Liles Parker attorneys have extensive experience working with dental practices around the country to develop and implement an effective compliance program.  Part of this process includes the performance of a “GAP Analysis” to determine whether the practices current practices are consistent with applicable regulatory and contractual requirements.  If deficiencies are identified, remedial steps can then be taken to bring the practice back into compliance.

Robert W. Liles Healthcare LawyerIs your dental practice being audited by DentaQuest, Delta Dental or Cigna?  If so, give us a call.  We can help.  A number of Liles Parker attorneys are experienced defending dental practices in Medicaid and private payor audits.  Moreover, these attorneys are both experienced health lawyers AND Certified Professional Coders (CPCs).  For a free consultation, please give us a call:  1 (800) 475-1906.

 

[1] Each of these plans qualify as “health care benefit programs” as defined by 18 USC § 24(b).

[2] Ecclesiastes 1:9 reads, in part “What has been is what will be, and what has been done will be done again. There is nothing new under the sun.”

[3] Are Your Providers Properly Credentialed with Each Payor?  How long does it take for the payor to credential a new dentist?  Once a new dentist is approved, will the payor cover dental claims back to the submission date of credentialing package?   We are seeing a huge rise in the number of overpayments based on failure to credential.  A detailed discussion of this credentialing issue is discussed in an article entitled: The Dangers of Billing Payors for the Services of a Non-Credentialed Dentist / Non-Participating Dentist.”

[4] Under the Fifth Amendment of the Constitution, a criminal defendant in a Federal case has a constitutional right to be indicted by a Grand Jury.  An Information is typically used by the government when a defendant voluntarily pleads guilty (typically after entering into plea bargain negotiations with the government).

[5] Notably, the defendant practice administrator has not entered a guilty plea and is scheduled to be tried in December 2019.

[6] 65 Fed. Reg. 59434. (October 5, 2000).

[7] 65 Fed. Reg. 59434, 59435.

[8] A copy of the Affordable Care Act can be found at the following link:  https://www.govinfo.gov/content/pkg/PLAW-111publ148/pdf/PLAW-111publ148.pdf

[9]See Measuring Compliance Program Effectiveness – A Resource Guide.” 

[10] Generally speaking, traditional Medicare does not cover most routine dental care procedures, such as cleanings, fillings, tooth extractions, dentures, or other common dental procedures. Under certain circumstances, Medicare Part A may cover dental services that are needed in connection with the provision of a covered Part A service (e.g. an operation your jaw).  Additionally, some Medicare Advantage are now starting to cover a limited scope of routine dental procedures.

Aetna’s SIU is Actively Auditing Dental Claims. Are Your Dental Services Compliant with Applicable Regulatory and Contractual Requirements?

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Dental Claims(January 3, 2019):  Slowly but surely, the percentage of adults and children with dental insurance coverage benefits has gradually climbed.  These increases have been driven, at least in part, by several factors.  First, despite the fact that traditional Medicare does not cover routine dental services, a number of Medicare Advantage plans are now offering coverage for routine dental procedures such as cleanings and fillings.  Second, approximately 37 states have expanded their Medicaid plan’s eligibility requirements.  Notably, 25 of these states now provide at least limited dental benefits for adult Medicaid beneficiaries.[1] Finally, a growing number of employers are now offering supplemental dental policies at affordable prices for their staff and families. Collectively, the American Dental Association’s (ADA’s) Health Policy Institute has estimated that approximately 89.7% of children and 72.5% of adults currently have some level of dental benefits coverage.[2]

Dental Claims

Aetna is one of the largest insurance payors currently offering dental service plans. In fact, more than 12.7 million individuals now have coverage for dental services through Aetna.[3]  The payor has developed dental benefits packages that are offered by a number of Medicare Advantage, Medicaid and private plans around the country. Not surprisingly, Aetna’s “Special Investigations Unit” (SIU) has been aggressively working to identify and address suspected instances of dental improper billing practices, fraud and abuse.  The purpose of this article is to provide an overview of Aetna’s dental claims program integrity auditing practices and discuss steps that your dental practice can take to reduce its level of risk and hopefully avoid the imposition of a significant overpayment by the payor.

I. Aetna SIU Dental Enforcement Activities:

Aetna employs a core team of investigators to review and assess questionable dental claims billed to one or more of their programs.  In addition to cases involving allegations of improper billing, the SIU is also responsible for investigating possible instances of health care fraud and abuse.  From a business standpoint, Aetna’s SIU has proven to be financially prudent.  Aetna’s SIU claims that for every dollar spent on enforcement, it recovered and / or saved the payor fifteen dollars.  As you can imagine, a return on investment of 15 to 1 provides significant motivation for Aetna to further expand its SIU’s investigation efforts.

From a practical standpoint, Aetna’s enforcement authorities are limited to taking administrative action against a dental provider when wrongdoing has been identified.  This may include the assessment of an overpayment and / or termination from one or more of Aetna’s participating provider programs.  In some instances, Aetna may also report a dental provider to the “National Practitioner Data Bank (NPDB).” [4]  In addition to dental professionals having the ability to “self-query,” it is important to remember that when a dentist is reported to the NPDB, the information is also made available to:

  • Hospitals.
  • Health Care Entities with Formal Peer Review Functions.
  • Health Plans.
  • Professional Societies with Formal Peer Review Functions.
  • Quality Improvement Organizations.
  • State Licensing and Certification Authorities State Law Enforcement Agencies.
  • State Medicaid Fraud Control Units.
  • State Agencies Administering or Supervising the Administration of a State Health Care Program.
  • Agencies Administering Federal Health Care Programs, Including Private Entities Administering Such Programs Under Contract.
  • Federal Licensing or Certification Agencies.
  • Federal Law Enforcement Officials or Agencies.

Unfortunately, after being reported to the NPDB, many dentists and other health care providers have suffered the proverbial “death by a thousand cuts.”  After Aetna or another payor takes a reportable adverse action against you and files the report with the NPDB, it is quite common for other payors to initiate their own reviews of your dental practices and claims.  This often results in additional adverse actions being pursued by other payor networks.  Notably, most payor participation agreements include a requirement that you notify them with 30 – 60 days (depending on the payor) of any adverse action taken against you or your license.  In recent years, the mere failure to file this report in a timely fashion has been cited as justification by some payors for terminating a provider’s participation in their network.

II. Examples of Criminal Cases Brought Against Dentists in Connection with Fraudulent Aetna Claims:

It is important to keep in mind that in addition to offering private dental insurance products, the company has greatly expanded its Medicare Advantage, Medicaid and Medicaid Advantage programs footprint.  Additionally, the payor offers a number of dental coverage programs through the Federal Employee Health Benefits Programs (FEHBP).  These relationships have further strengthened Aetna’s close working relationship with Federal and State prosecutors, investigators, auditors and agents around the country.  Why does this matter?  It is important to keep in mind that Aetna’s SIU will not hesitate to refer cases involving fraud and abuse to law enforcement.  Several cases brought against dentists for defrauding Aetna and other private payors include the following:

Virginia.  In this case, a Virginia dentist was sentenced to 25 months in prison for illegally dispensing controlled substances and for using the identity of another dentist to fraudulently bill Aetna for more than $160,000 in dental services he provided to family members.

Virginia.  In this case, the owner / operator of a dental practice was sentenced to 30 months in prison for defrauding Medicaid and four dental insurers of approximately $783,000.  In this case, the defendant dentist’s fraud scheme included:  (1) the fraudulent billing of dental services to Medicaid and other payors for dental services that were never rendered, some of which were billed while the dentist was out of the country; (2) the improper use of incorrect CDT billing codes that resulted in higher bills than were justified by the actual dental services provided; (3) the fraudulent “backdating” of dental services in an effort to have certain dental services covered by the insurance payor AFTER the patient’s insurance coverage had been terminated.

New Jersey.  In this case, a New Jersey dentist pleaded guilty to theft after fraudulently altering the dates of service when dental work for provided. The dentist admitted that he had falsified the dates of service in an effort to avoid contractual date restrictions set out in the patient’s dental insurance policies.  After pleading guilty, he faced up to five years in state prison.

III.  How Are Dentists and Their Practices Targeted by Aetna’s SIU?

Aetna SIU reviews and audits of dental claims can arise in a number of ways.  In most cases, Aetna’s SIU identifies audit target based solely on the results of data-mining, without anyone actually taking the time to review any of your dental practice’s patient records.  This type of review examines the CDT coding and billing information submitted by the dental practice and takes into account the provider’s billing patterns and those of his or her peers and other dental providers.  Once a target is identified, Aetna’s SIU will normally advise a dental practice that a review of relevant patient dental records is necessary in order to determine whether or not an overpayment exists. In addition to data-mining, Aetna’s SIU may also initiate an audit based on:

  • A prior history of alleged overpayments.
  • An adverse report filed against a dental professional on the NPDB.
  • Complaints from beneficiaries and their families.
  • Actions taken by State Dental Boards.
  • Actions taken by Federal and / or State prosecutors and regulators.

When Aetna’s SIU suspects that a dental provider is committing fraud, it will generally contact one or more of the dentist’s Aetna patients to confirm whether certain dental services were actually rendered.  Many of our clients first heard that Aetna was conducting an audit of their claims from one of the practice’s patients.

IV. Examples of Improper Dental Coding and Billing Practices:

Examples of improper claims cited by Aetna SIU investigators have included:

  • Billing for dental services that are not considered medically necessary after reviewing the beneficiary’s dental records.
  • Billing for radiographs when no record of the x-rays can be produced.
  • Billing for dental services that have been based on radiographs when a review of the x-rays does not show that the services were medically necessary.
  • Billing for dental services that are not covered due to contractual date restrictions.
  • Billing for dental services under the identity of a credentialed dentists when, in fact, the dental services were provided by a non-credentialed dentist.
  • Billing for dental services that were not provided.
  • Billing for dental services that qualify for coverage, when other non-covered dental services were actually provided.
  • Failure to collect contractually required co-payments and deductibles from patients.
  • Claims that are submitted with falsified dates of services in order to avoid denial because the services were provided after a patient’s period of coverage.
  • Improper unbundling of claims for dental services that are supposed to be billed together.

V. Steps That You Can Take to Reduce Your Level of Risk:

As with any payor, it is essential that dentists and dental practices submitting claims to Aetna for coverage and payment take the time to review the terms of their participation agreement and understand the specific contractual limitations that may apply to a specific beneficiary’s plan.  In recent years, compliance plans have become an essential program integrity tool utilized by dentists and dental practices.  Compliance programs aimed at reducing, preventing, and deterring fraudulent and improper conduct are at the forefront of the health care industry’s goals.  These programs can also benefit dental practices by helping them avoid costly litigation and by streamlining their business operations.  Additional benefits of implementing a compliance program include:

  • Proactive approach.  A compliance program is a proactive way to make sure that your dental practice is meeting all ofits statutory and regulatory obligations.
  • Evidence of good faith.  The existence of a compliance program serves as evidence of a good faith effort to comply with the law in the event your dental practice becomes the subject of an investigation.
  • Sentencing guidelines.  In the event of criminal prosecution, the existence of a compliance plan is favorably considered under the sentencing guidelines.  Your dental practice and its staff will also likely benefit from its compliance efforts if civil or administrative proceedings are pursued by the government or private payors such as Aetna.
  • Minimize mistakes. An effective compliance program can speed-up and optimize the proper payment of your dental claims.  It can also minimize the likelihood that you will submit incorrect dental claims to insurance companies for payment.

VI. Conclusion:

If your dental practice is audited by Aetna or another payor, it is important that you contact qualified health law counsel before you respond to the payor’s request for documentation.  You need to put your best foot forward when responding to an audit.  We can assist you in that regard.

The attorneys at Liles Parker have extensive experience representing dentists and dental practices in connection with dental claims audits.  Notably, the attorneys working on your dental case are also Certified Professional Coders and have successfully passed the certification exam of the American Association of Professional Coders.

Robert Liles Healthcare LawyerRobert W. Liles serves as Managing Partner at the health law firm, Liles Parker, Attorneys and Counselors at Law.  Liles Parker attorneys represent health care providers and suppliers around the country in connection with UPIC audits, OIG audits and DOJ investigations of Medicare and Medicaid claims.  He also advises health care providers in connection with private payor audits of billed services. Are you currently being audited or under investigation?  We can help.  For a free initial consultation regarding your situation, call Robert at:  1 (800) 475-1906

[1] Henry J. Kaiser Family Foundation, “Current Status of State Medicaid Expansion Decisions,” as of December 28, 2018.

[2] ADA Health Policy Institute, Dental Benefits Coverage in the U.S.

[3] Aetna Facts, can be found at:  https://www.aetna.com/about-us/aetna-facts-and-subsidiaries/aetna-facts.html

[4] The types of actions that must be reported to the National Practitioner Data Bank are quite extensive.  Notably, reportable actions are limited to allegations of malpractice.  A wide scope of other adverse actions against a professional licensee (such as a dentist) must also be reported.

Robert W. Liles, J.D., M.B.A., M.S.

January 25, 2021 by  
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Robert W. Liles is a Health Law Attorney at Liles Parker.  Call 1 (800) 475-1906 for a Free Consultation.
Managing Member
Office: (202) 298-8750
Facsimile: (202) 337-5804
rliles@lilesparker.com

He has been peer rated for high professional achievement in 2020Robert Liles has been rated "AV" by Martindale-HubbellNamed one of "America's Most Honored Lawyers"Robert Liles has been named a "Top-Rated Lawyer for 2020"Robert Liles has been named a "Top Attorney" by AVVO

Robert W. Liles — Practice Concentration and Experience:

Robert W. Liles has worked in regulatory compliance as a Federal prosecutor and as defense counsel, for more than 25 years. This has provided a unique perspective on the challenges faced by clients in highly regulated industries such as health care, banking and finance. Mr. Liles focuses his practice on fraud defense, internal audits, investigations, compliance and regulatory matters. He has represented both individuals and entities in administrative, civil and criminal proceedings.

Mr. Liles first began working in hospital management after receiving both an M.B.A. and an M.S. in Health Care Administration.  After graduating from law school, he was hired as an Assistant United States Attorney (AUSA) in the Southern District of Texas (SDTX) where he primarily handled False Claims Act cases.  He was later promoted to Chief,  Financial Litigation Unit.

Shortly after the passage of the Health Insurance Portability and Accountability Act of 1996 (HIPAA), Mr. Liles was asked to serve as our country’s first National Health Care Fraud Coordinator.He was detailed to Washington, DC and was later promoted to the position of Deputy Director, Legal Programs, for the Executive Office for U.S. Attorneys (EOUSA), a component of the United States Department of Justice (DOJ).  While at EOUSA, he advised Federal prosecutors around the country on civil and criminal fraud statutes, schemes, investigative tools, privacy concerns, and compliance issues. He was instrumental in writing and implementing DOJ guidance on the judicious use of the False Claims Act.  Notably, while a Federal prosecutor, he was asked by the Office of Inspector General (OIG) to travel overseas and train Ukrainian prosecutors and investigators on health care fraud and abuse issues.  Mr. Liles also regularly taught OIG agents and investigators at the Federal Law Enforcement Training Center (FLETC), on Jekyll Island.

Robert’s health care management education / background and his prior experience as a Federal prosecutor provide a real-world perspective when advising individuals and entities on enforcement and regulatory compliance issues.

Financial / Regulatory Matters Handled:

  • Managed our team in an investigation and document production responding to a subpoena directed to a large, international bank, by the Department of Treasury, Office of Foreign Asset Control (OFAC).
  • Managed our production team’s efforts in responding to a subpoena for documents by the Securities and Exchange Commission (SEC) that was directed to our client, a U.S. bank.
  • Represented bank officer and defended his deposition by the Office of the Comptroller of the Currency (OCC).
  • Represented large international bank in a False Claims Act case.

Health Care Regulatory Matters Handled:

  • Represented multiple health care providers in Medicare revocation cases where CMS had revoked the provider’s billing privileges.
  • Represented licensed health care professionals in State Licensing Board proceedings.
  • Represented multiple entities in connection with UPIC and ZPIC audits, and investigations by OIG.
  • Worked with a variety of providers and suppliers to develop and implement an effective Compliance Plan.  Conducted training for staff on statutory and regulatory requirements to be followed.
  • Reviewed and challenged the validity of the statistical methodology used to extrapolate alleged damages in audit cases of Medicare, Medicaid and private payor medical, home health, DME and dental claims.
  • Directed the internal audit of non-profit corporate operations, policies and procedures to better ensure statutory and regulatory compliance.
  • Conducted internal investigation of alleged malfeasance of corporate employees.  Provided recommendations for the implementation of safeguards to better prevent improper employee conduct.
  • Worked with corporate clients to properly incorporate privacy provisions into the client’s overall effective compliance strategy.
  • Provided assessment and advice to corporate clients on proposed business models, addressing both the prohibition against improper self-referrals, Federal and State Anti-Kickback Act concerns, and violations of False Claims Act provisions.
  • Represented individuals and entities in ongoing litigation under the False Claims Act, addressing concerns raised by DOJ and State prosecutors.
  • Managed large document productions on behalf of corporate clients in response to Grand Jury, DOJ and Federal agency subpoenas. Advised investors and investment companies with respect to health care sector issues and the possible impact of health care fraud enforcement activities.
  • Served as Independent Review Organization (IRO) in connection with multiple Corporate Integrity Agreements (CIAs) between the OIG and Medicare providers.

Education:

  • South Texas College of Law, Houston, Texas (J.D.)
  • Trinity University, San Antonio, Texas (M.S. in Health Care Administration)
  • Trinity University, San Antonio, Texas (Master’s in Business Administration)
  • University of the South, Sewanee, Tennessee (B.A. in Economics)

Certifications

  • Certified Professional Coder (CPC)
  • Certified Medical Compliance Officer (CMCO)

Professional Affiliations:

  • Member, American Health Lawyers Association
  • Member, National Association of Criminal Defense Lawyers
  • Member, American Association of Professional Coders
  • Member, National Alliance of Medical Auditing Specialists
  • Member, American College of Legal Medicine
  • Member, Christian Trial Lawyers Association
  • Compliance Counsel, American Medical Billing Association
  • Compliance Counsel, American Association of Clinical Endocrinologists
  • Faculty Instructor, Practice Management Institute

Recent Awards:

  • Top Attorneys — Washington, DC (as published in the “Washington Lawyer“)(May 2020).
  • Rated “AV Preeminent” Highest Possible Peer Review Rating in Legal Ability and Ethical Standards (2003 — 2021).
  • Rated “10.0,” AVVO’s Highest Rating for Attorneys. (2021)
  • America’s Most Honored Professionals:  Top 1% (2017-2020).
  • Top Rated Lawyers in Washington, DC & Baltimore (as Published in the Wall Street Journal — Based on Martindale-Hubbell Ratings)(December 2015).

Federal Admissions:

  • U.S. Supreme Court
  • District of Columbia District Court
  • Maryland District Court
  • Texas Northern District Court
  • Texas Southern District/Bankruptcy Court
  • Texas Western District Court

State Admissions:

  • District of Columbia
  • State of Texas

Presentations and Speaking Engagements (Partial Listing):

  • National Webinar, American Medical Billing Association (AMBA). “10 Steps You Can Take to Improve Your Compliance Efforts in 2021″ (2021).
  • National Webinar, Texas Association of Home Care and Hospice (TAHCH).  Problems and Pitfalls With Home Health and Hospice EHR Systems — Address These Software Deficiencies Now, Before it is Too Late!”  (2020).
  • National Webinar, American Medical Billing Association (AMBA).  Compliance Pitfalls With Physician Practice EHR Systems — Deficiencies You Must Address Now!”  (2020).
  • National Webinar, Texas Association of Home Care and Hospice (TAHCH).  “An Overview of the CMS Preclusion List”  (2020).
  • Practice Management Institute, Abilene TX. “Compliance Officer Certification Course” (2020).
  • National Webinar, National Alliance of Medical Auditing Specialists (NAMAS). “Structuring an Effective Compliance Program:  The Ins and Outs of How to Ensure You Are On the Right Track.”  (2020).
  • National Webinar, National Alliance of Medical Auditing Specialists (NAMAS). “I Have an Excluded Employee — What Should I Do?” (2020).
  • G2:  Lab Reimbursement Summit 2019, Charlotte, NC.  “Government Enforcement Efforts Targeting Labs:  Are Your Marketing Practices Compliant with the Law.”  (2019).
  • American Association of Orthopedic Executives (AAOE), Arlington, VA. “Regulatory Enforcement Actions: Compliance Issues Impacting Orthopedics.” (2019).
  • Florida Behavioral Health Conference, Orlando, FL.  “Government Enforcement Efforts Targeting Substance Abuse Treatment Clinics — Are Your Marketing Practices Compliant with EKRA and Other Applicable Laws?”  (2019).
  • National Webinar, American Association of Clinical Endocrinologists. “EKRA, the Anti-Kickback Statute and State All-Payor Laws — Steps Your Endocrinology Practice Should Take to Stay Out of Trouble.”  (2019).
  • West Coast Symposium on Addictive Disorders (WCSAD), La Quita, CA.  “Enforcement and Regulatory Risks Facing CEOs, Managers and Physicians of Addiction Medicine Clinics.” (2019).
  • Annual Conference — American Alliance of Orthopedic Executives (AAOE), Nashville, TN. Regulatory Risk Areas Facing Orthopedic Practices in 2019.”  (2019).
  • Annual Conference, American Association of Professional Coders (AAPC), Las Vegas, NV. Potential Liability of Coders and Billers in a Health Care Fraud Case.” (2019).
  • National Webinar, Liles Parker.  “Top 10 Steps You Can Take to Improve Compliance and Stay Out of Trouble with the Government — Parts 1 and 2.”  (2019).
  • DHR Health — Partnership Meeting, Edinburg, TX.  An Overview of Current Health Care Fraud Enforcement Efforts – Steps You Can Take to Improve Compliance and Stay Out of Trouble.”  (2019).
  • National Webinar, Exclusion Screening, “Exclusions Screening of Vendors and Contractors — Who Should You Screen?”  (2019).
  • National Webinar, American Medical Billing Association (AMBA).  Third-Party Billing Agreements: Does Your Contract Protect Your Interests? Is it in Violation of Federal or State Requirements?” (2019).
  • Endocrine University: American Association of Clinical Endocrinologists (AACE).  Mayo Clinic, Rochester, MN.  “The Business of Medicine.”  (2019).
  • American College of Legal Medicine, 11th Annual Ethical and Legal Aspects of Dentistry, Los Angeles, CA.  Current Audit and Government Enforcement Efforts Against Dentists and Dental Practices.”(2019).
  • National Webinar.  Exclusion Screening. Disclosure Risks When Enrolling in Medicare and Medicaid.”(2019).
  • National Webinar, National Alliance of Medical Auditing Specialists (NAMAS). “2019 OIG Work Plan Update.”  (2019).
  • Annual Conference, Cape Cod Symposium on Addictive Disorders (CCSAD), Hyannis, MA. Enforcement and Regulatory Risks Facing CEOs, Managers and Physicians of Addiction Medicine Clinics.” (2018)
  • Annual Conference (AOA-36), Association of Otolaryngology Administrators, New Orleans, LA, “Health Care Employment Law Update. From Marijuana to Sexual Harassment.” (2018).
  • National Webinar, American College of Clinical Endocrinologists, “Endocrinologist Considerations When Negotiating a New Employment Contract AND When Leaving a Job.” (2018).
  • AAPC Alexandria, VA Chapter Conference, “Regulatory and Enforcement Risks to be Addressed by Professional Coders.”  (2018).
  • Annual Conference, American College Health Association, Washington, DC, “Workplace Violence in College Health Care Clinics.” (2018).
  • National Webinar, Exclusion Screening, Top Regulatory and Billing Risks Facing Dentists and Dental Practices.” (2018).
  • Quality & Compliance Conference, Home Care Alliance of Massachusetts, Worchester, MA, “ADRs, Prepayment Reviews, Post-Payment Audits and Suspensions – Navigating Medicare’s Administrative Appeal Process.” (2018).
  • Annual Retreat, Washington, DC, “The Criminalization of Pain. The Investigation and Prosecution of Physicians, Nurse Practitioners and Dentists based on Their Opioid Prescribing Practices.” (2018).
  • National Webinar, Exclusion Screening, “History and Current Status of Health Care Regulatory Enforcement Efforts.” (2018).
  • Endocrine University, American Association of Clinical Endocrinologists, Rochester, MN, “The Business of Medicine.”  (2018).
  • Annual Conference, American College of Legal Medicine, Charleston, SC, Top Regulatory and Billing Risks Facing Dentists and Dental Practices.(2018). 
  • National Conference, National Alliance of Medical Auditing Specialists, Orlando, FL, “Enforcement Efforts for 2018: What You Can Do to Prepare for the Upcoming Changes in Laws & Statutes.” (2017).
  • Annual Conference (AOA-35) , Association of Otolaryngology Administrators, Las Vegas, NV, “Emergency Preparedness and Workplace Violence.” (2017).
  • National Conference, National Alliance of Medical Auditing Specialists, Orlando FL, “History & Current Status of Healthcare Compliance Requirements.” (2017).
  • National Conference, American Medical Billing Association, Las Vegas, NV, “Vital Billing Contract Terms for Billers and Health Care Providers.” (2017).
  • National Conference, The Business of Pain Medicine, “IPM Compliance.” (2017).
  • National Webinar, American Association of Healthcare Administrative Management, “Effective Compliance Plans — How is Law Enforcement Evaluating Your Efforts?” (2017).
  • New Directions in Home Care & Hospice Conference, Dixon Healthcare Solutions, Las Vegas NV, “New Developments in Regulatory and Judiciary Enforcement of Home Health Agencies.” (2017).
  • National Webinar, American Medical Billing Association, “Employer Scrutiny and Screening for Current and New Employees and Providers.” (2017).
  • National Webinar, Texas Association for Home Care and Hospice, “Employer Scrutiny and Screening for Current and New Employees and Providers.” (2017).
  • Annual Conference, West Virginia State Medical Association, Charleston WV, “Employment Law and the Medical Practice. What are the Risks Facing Your Practice.”  (2017).
  • Annual Conference, West Virginia State Medical Association, Charleston WV, “ADRs, Prepayment Reviews, Postpayment Audits, Suspensions and Revocations – The Impact of these Administrative Enforcement Tools on a Physician Practice.” (2017).
  • National Webinar, Texas Association for Home Care and Hospice, “Reading the Tea Leaves – What are the Top Ten Risks Your Home Health Agency will Face in 2016.” (2016).
  • National Webinar, Texas Association for Home Care and Hospice, “Employer Scrutiny and Screening for Current and New Employees and Providers” (2016).
  • National Webinar, Texas Association for Home Care and Hospice, “Pre-Claim Reviews – Is Your Agency Prepared?” (2016).
  • National Conference, Practice Management Institute, Las Vegas NV, “Compliance and Ethics in the Medical Practice.” (2016).
  • National Conference, Practice Management Institute, Las Vegas NV, “Workplace Violence in the Medical Practice.” (2016).
  • National Conference, National Alliance of Medical Auditing Specialists, Orlando FL Attorney-Client Privilege: Issues to be Considered by Health Care Providers.”  (2016).
  • National Conference, National Alliance of Medical Auditing Specialists, Orlando FL, “What is Your Liability? As the Auditor and Compliance Officer What Role do You Play in Your Day-to-Day Operations?”  (2016).
  • National Conference, National Alliance of Medical Auditing Specialists, Orlando FL, “Developing a Voluntary Disclosure and Refund Policy.” (2016).
  • National Conference, National Alliance of Medical Auditing Specialists, Orlando FL, “Repercussions and Penalties of Non-Compliance. The Potential Price Tag of Not Having a Compliance Plan.” (2016).
  • National Conference, American Medical Billing Association, Las Vegas NV, “The Liles Report: An Update on Compliance.” (2016).
  • National Conference, Professional Association of Health Care Office Management (PAHCOM), Clearwater Beach FL “Reading the Tea Leaves – How Does 2017 Look for Health Care Providers?” (2016).
  • National Conference, American Medical Billing Association, Las Vegas NV, “Rules for Billers in Compliance.” (2016).
  • National Webinar, National Alliance of Medical Auditing Specialists, “The FY 2017 OIG Work Plan: What Should You Expect.”  (2016).
  • National Conference, Association of Otolaryngology Administrators, Chicago IL, “What are the Top 10 Regulatory Risks Your Practice will Face in the Next Year?” (2016).
  • National Conference, Association of Otolaryngology Administrators, Chicago IL, “Professional Courtesy, Discounts and Waivers – When are they Permissible? When are they Likely Illegals?” (2016).
  • National Webinar, Texas Association for Home Care and Hospice, “Home Health Pre-Claim Demonstration Review Project & New HHS-OIG Home Health Audits on the Horizon.” (2016).
  • National Conference, Practice Management Institute, Las Vegas NV, “Compliance and Ethics in the Medical Practice.” (2016).
  • National Webinar, Practice Management Institute, “Compliance News Update.” (2016).
  • National Webinar, American Medical Billing Association, Third-Party Billing Agreements – Does Your Contract Protect Your Interests?” (2016).
  • National Conference, Practice Management Institute, New Orleans LA, “Compliance and Ethics in the Medical Practice.” (2016).
  • National Conference, Practice Management Institute, New Orleans LA, “HHS-OIG Fraud Efforts & Physician Compensation.” (2016).
  • 16th Annual Health Care Business Summit, MedAssets, Las Vegas NV “Regulatory Risks:  The Anti-Kickback Statute, Stark and the False Claims Act”  (2016).
  • Long Term Care and the Law, American Health Lawyers Association, Orlando FL “Tactical Approaches to Claim Audits and Recovery Risks in Home Health and Hospice”  (2016).
  • 15th Annual National Medical Billing Conference, American Medical Billing Association, Las Vegas NV “Provider Exclusions, HIPAA Changes and Legal Issues with ICD-10” (2015).
  • Cutting Edge Home Health Leadership Summit, Dixon Healthcare Solutions, Maui HI, “Defending Your Medicare and Other Government Claims” (2015).
  • West Virginia State Medical Association — Winter Conference, Charleston WV, “Physician Compliance Challenges – Regulatory Risks Areas to be Considered by Your Practice” (2015).
  • Private Duty Conference, Dixon Healthcare Solutions, Las Vegas NV, “Understanding HIPAA and other Privacy Issues Affecting Your Private Duty Agency” (2015).
  • National Conference, Practice Management Institute, San Antonio TX, “Compliance and the Physician Practice: A Glimpse of the Future” (2015).
  • National Webinar Series, Exclusion Screening “Don’t Forget, The OIG Is Not the Only Game in Town!” (2015).
  • National Webinar Series, American Medical Billing Association, “Using an Overseas Billing Company and /or Using the Cloud to Store Your Data: What are the Risks and Benefits of these Practices?” (2015).
  • Home Health Conference, Dixon Healthcare Solutions, Las Vegas NV, “Employment Law Issues Impacting Home Health Agencies” (2015).
  • Home Health Conference, Dixon Healthcare Solutions, Las Vegas NV “Preparing and Responding to Various Medicare Claims Audits” (2015).
  • Doctor’s at Renaissance Conference Center, Edinburg TX, “South Texas Takedown — How to Stay within the Four Corners of the Law” (2015).
  • APPNA, Arlington VA, “Top 10 Steps You Can Take to Improve Compliance and Stay Out of Trouble with the Government” (2015).
  • Private Duty Conference, Texas Association of Home Care and Hospice, San Antonio TX, “Risky Business. . . Avoiding Legal Pitfalls to Protect Your Business and Bottom Line” (2014).
  • Regulatory Educational Group Services, McAllen TX, “Top 10 Steps You Can Take to Improve Compliance and Stay Out of Trouble with the Government” (2014).
  • NSCHBC Annual Conference – San Juan PR, “Be Careful Before Moving to Cloud Computing: A Contrarian View of the Inevitable” (2014).
  • NAMAS Annual Conference, Ashville NC, “Enhanced Provider Exclusion Rules and the Impact on Your Screening Obligations” (2014).
  • NAMAS Annual Conference, Ashville NC, “When to Disclose – Legal Obligations and Options” (2014).
  • Fall Conference — Jefferson IPA, Dallas TX, “Risky Business: Avoiding Program Integrity Pitfalls Currently Facing Your Health Care Practice” (2014).
  • National Webinar Series, Practice Management Institute, “Human Resource / Employee Relations Risks” (2014).
  • National Webinar Series, American Medical Billing Association, “Identifying Risks and Modifying Your Compliance Plan to Take These Risks Into Account” (2014).
  • Rio Grande Valley Healthcare Fraud and Compliance Conference, McAllen TX, “Overview of Health Care Compliance and Relevant Statutory Provisions Now Facing South Texas Providers” (2013).
  • Physician Practice Conference & Annual Business Meeting, West Virginia Medical Association, Charleston WV, “Red Hot Compliance Update — 2013” (2013).
  • National Conference, Practice Management Institute, New Orleans, LA, “Conducting a Gap Analysis: Turning the Lights On in Your Practice.” (2013).
  • National Webinar Series, American Medical Billing Association, “Social Media Concerns for Providers and Billers” (2012).
  • National Webinar Series, American Medical Billing Association, “HIPAA, HITECH and Emerging Risk Areas for 2012” (2012).
  • Fifth Annual Medical Coding Conference, Coding Con, Orlando FL, “Building an Effective Anesthesia Compliance Program” (2012).
  • Revenue Cycle Management 2011, Decision Health, Atlanta GA, “Responding to Unannounced Audits” (2011).
  • Annual Conference, Practice Management Institute, San Antonio TX, “Federal Compliance Panel Addresses Compliance Risks” (2011).
  • National Webinar Series, Practice Management Institute, “Reading the Tea Leaves — Issues of Concern Covered in HHS-OIG’s 2012 Workplan” 2011.
  • National Webinar Series, American Medical Billing Association, “Returning Overpayments to the Government” (2011).
  • National Webinar Series, Decision Health, “What to do When the Auditor Knocks” (2011).
  • Medical Coding, Billing and National Conference, CodingCon, Las Vegas NV, “Impact of Healthcare Reform on Healthcare Entities” (2011).
  • Annual Conference, American Medical Billing Association, Las Vegas NV, “Third-Party Billing Company Compliance Concerns” (2011).
  • Practice Management Institute, Dallas TX, “Compliance Officer Certification Course” (2011).
  • Practice Management Institute, Las Vegas NV, “Compliance Officer Certification Course” (2011).
  • Practice Management Institute, San Diego CA, “Compliance Officer Certification Course” (2011).
  • Practice Management Institute, Alexandria VA, “Compliance Officer Certification Course” (2011).
  • National Webinar Series, American Medical Billing Association, “Health Care Reform and Third-Party Billers“(2010).
  • South Texas Home Health Conference, The Forum, McAllen TX, “Responding to ZPIC Audits and Investigations” (2010).
  • Annual Conference, Practice Management Institute, San Antonio TX “Medicaid Integrity Contractors: The Newest Challenge Faced by Providers” (2010).
  • Annual Conference, Practice Management Institute, San Antonio TX, “Responding to an Audit by Medicaid Integrity Contractor” (2010).
  • Webinar, Rocky Mountain Chapter – American Medical Billing Association, “Current Issues Facing Third-Party Billing Companies” (2009).
  • Annual Convention, Practice Management Institute, Las Vegas NV, “Medicare Audits: How to Respond to a RAC Review” (2009).
  • 9th Annual AMBA National Conference, Las Vegas NV, “RAC, PSC and ZPIC Audits — How to Respond if Your Practice is Audited” (2009).
  • 21st Annual PAHCOM Conference, Phoenix AZ, “Current Risks Faced by Physician Practices” (2009).
  • National Conference, Practice Management Institute, San Antonio TX, “Responding to PSC and RAC Audits” (2009).
  • Medical Billing and User Conference, CodingCon, Orlando FL, “Issues Facing Third-Party Billing Companies” (2009).
  • National Conference, Practice Management Institute, Las Vegas NV, “A New Breed CMS Auditor: PSCs and RACs” (2008).
  • Regional Conference, Practice Management Institute, Anaheim CA, “A New Breed of CMS Contractors: PSCs and RACs” (2008).
  • Regional Conference, Decision Health, Atlanta GA, “Keynote Speaker: Post-Election Legislative Initiatives” (2008).
  • Regional Conference, Decision Health, Atlanta GA, “Provider-Vendor Relationships: How to Stay on the Right Side of the Red Line” (2008).
  • Fall Health Care Conference, Practice Management Institute, San Antonio TX, “RACs and PSCs: Addressing Audits by CMS Contractors” (2008).
  • Central Illinois Chapter Meeting, American Medical Billing Association, Chicago IL, “Issues Facing Third-Party Companies” (2008).
  • National Conference, American Medical Billing Association, Las Vegas NV, “Issues Facing Third-Party Billing Companies” (2008).
  • Semmelweis Annual Conference, Washington, DC, “History and Current Status of the False Claims Act” (2007).
  • Annual Convention, Medical Association of Billers, Las Vegas, NV, “Compliance Violations and Penalties” (2007).
  • Chapter Conference for Medical Office Professionals, American Medical Billing Association, Largo, MD, “Health Care Fraud: Audits and Investigations” (2007).
  • Semmelweis Society Annual Conference — Washington, DC, “Bad Faith Peer Review Concerns” (2006).
  • Prosecuting Chiropractic Fraud Cases, NCHAA, Harrisburg, PA, “Chiropractic Fraud Issues” (2006).
  • Health Care Fraud Issues Faced by Medical Group Managers, MGMA, Washington, DC, “Health Care Fraud Update” (2006).
  • Annual Conference, American Medical Billing Association, Las Vegas, NV, “Keynote Speaker: Health Care Compliance” (2006).
  • Medical Practice Coding & Compliance Summit, Practice Management Institute, San Antonio TX “Health Care Fraud: Issues and Concerns from a Legal Perspective” (2006).
  • Intensive Session in Trial Advocacy Skills, National Institute of Trial Advocacy, Washington DC, “Trial Advocacy Skills” (2003).
  • Health Privacy, American Academy of Pediatric Dentistry, “HIPAA Privacy: An Essential Element of an Effective Compliance Strategy” (2003).
  • Webinar, Ohio Hospital Association, “Handling Overpayments — Selected Issues and Considerations“(2003).
  • Intensive Session in Trial Advocacy Skills, National Institute of Trial Advocacy, Washington DC, “Trial Advocacy Skills” (2002).
  • Trinity University and the Greater San Antonio Hospital Council, San Antonio TX, “How to Respond to a Federal Investigation of Your Hospital or Medical Practice” (2002).
  • Greater New York Chapter of the American Corporate Counsel Association, New York NY, “How to Respond to a Federal Investigation of Your Company“ (2002).
  • Member Teleconference, Ohio Hospital Association, “New Leadership: What to Expect from DOJ and HHS-OIG” (2001).
  • Health Care Fraud Enforcement Issues and Considerations, Georgia Podiatric Association, Atlanta GA, “2001 Podiatric Coding & Practice Management Summit” (2001).
  • Member Teleconference, Healthcare Financial Management Association, “Health Care Fraud Enforcement Efforts This Year and Beyond“(2001).
  • Annual Meeting: Legislative Update, Academy of Managed Care Pharmacies, San Antonio TX, “Pharmaceutical Legislative Initiatives” (2001).
  • Ukrainian Prosecutors and Interior Ministry of Interior Law Enforcement Officials, Sponsored by the Department of Health and Human Services, Office of Inspector General, Kharkov Ukraine, “Civil and Criminal Health Care Fraud Enforcement” (multiple sessions covering various aspects of this topic)(2000).
  • Evaluator Team Leader Training, Executive Office for U.S. Attorneys, “Priority Prosecution Areas” (2000).
  • ABA Health Care Fraud Conference, “Priority Prosecution Areas” (2000).
  • Midwest Regional Nursing Home Fraud and Abuse Conference, Chicago IL, “Moderator, Nursing Fraud and Abuse Enforcement Panel” (1999).
  • Basic Health Care Fraud Enforcement, Federal Law Enforcement Training Center (FLETC), Glynco GA, “Civil & Criminal Health Care Fraud Statutes” (1999).
  • Advanced Health Care Fraud, National Advocacy Center, Executive Office for U.S. Attorneys, Columbia SC,  “Qui Tams” (1999).
  • National Level Health Care Fraud Working Group, Executive Office for U.S. Attorneys, Columbia SC, “False Claims Act and National Project Developments” (1998)
  • National Civil Chiefs Seminar, National Advocacy Center, Executive Office for U.S. Attorneys, Columbia SC, “Use of the False Claims Act in Civil Health Care Matters” (1998).
  • Basic Affirmative Civil Enforcement Seminar, Executive Office for U.S. Attorneys, Columbia SC, “Use of the False Claims Act” (1998).
  • Texas Statewide Financial Litigation Conference, San Antonio TX, “Health Care Fraud Collection Issues” (1997).
  • Basic Health Care Fraud Prosecution Team Training, Executive Office for U.S. Attorneys, Washington DC, “Investigative Techniques & Issues” (1997).
  • Affirmative Civil Enforcement, Executive Office for U.S. Attorneys, Washington DC, “Role of Auditors & Investigators” (1997).


Pierce the Corporate Veil — Are You Personally Liable for a UPIC Overpayment?

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Can the Government Pierce the Corporate Veil?(Updated January 9, 2021): Owners of healthcare companies often wonder whether the government can pierce the corporate veil and try to hold the owners personally liable for overpayment claims when facing a program integrity audit by a Unified Program Integrity Contractor (UPIC). [1] This rarely happens, but assuming that a provider does not prevail in the administrative appeal process, one way for the government to try and collect monies owed by a bankrupt health care entity would be to try and pierce the corporate veil.  A health care entity is usually owned by one or more individual owners. These owners often organize the company into an entity such as a corporation or Limited Liability Company (LLC). This is specifically done to limit each individual owner’s personal liability. Owners of incorporated health care providers can only be found personally liable for their companies’ debts to the Centers for Medicare & Medicaid Services (CMS) in certain very narrow circumstances, one of which is piercing the corporate veil.

I.  Will the Government Seek to Pierce the Corporate Veil?

The legal doctrine of piercing the corporate veil allows creditors to reach through the corporate structure and collect their debts from shareholders or similar owners. This doctrine is not unique to healthcare. In fact it is a potential way for all creditors to collect debts from individual entity owners.

CMS and its contractors rarely seek to pierce the corporate veil, and courts also tend to disfavor the practice. Veil piercing depends on facts that by their nature are difficult to prove in court. The burden of proving the facts is always on the creditor. Even though it may be difficult for a creditor to prove these facts exist, it is still important to know how a creditor could pierce a healthcare corporation’s “veil” to prevent individual owner liability. Creditors must prove specific factors to justify imposing liability on owners for a provider’s debts to CMS, including the following:

  1. Defective Incorporation: If the legal statutory requirements for organizing the corporation or LLC are not met, no corporation exists to shield owners from liability.

  2. Ignoring the Separateness of the Corporation: Entering into contracts and otherwise transacting business variously in a corporate name and an individual name can justify piercing the corporate veil. Commingling corporate and individual assets, transferring assets between the provider and an owner without formalities, or transferring assets between the provider and a sister company, can also suggest the owners did not respect the separate nature of the entity, potentially allowing CMS to pierce the corporate veil.

  3. Significant Undercapitalization: A corporation must have a reasonably sufficient amount of capital to pay its expected debts. Undercapitalization is grounds to impose liability on the owners.

  4. Excessive Dividends or Other Payments to Owners: When owners are actually working for a corporation, they can usually pay themselves fair compensation, as long as it is clearly characterized as salary or wages. However, additional dividends and other non-compensation distributions can only be safely taken out by an owner to the extent the distributions reflect profits. If an owner takes non-compensation distributions exceeding profits, these distributions constitute a return of capital and can give rise to an undercapitalization claim by a corporate creditor. If such distributions are made when the corporation is insolvent, the creditors’ claims against the owner will be almost impossible to defend.

  5. Misrepresentation and other Unfair Dealings with Creditors: Deceptive practices such as dishonesty, false statements to corporate creditors, and asset concealment can make owners liable for corporate debts.

  6. Absence or Inaccuracy of Records: If corporate records are missing or inaccurate, this can form a basis to pierce the corporate veil, especially if they hinder a creditor’s collection efforts against the provider.

  7. Failure to Maintain Ongoing Legal Requirements: Each state’s statutes impose annual franchise fees and report-filing requirements on corporations and similar entities. These usually have grace periods and cure provisions, but if they are neglected long enough the corporation or LLC will legally cease to exist, resulting in owner liability.

II.  Case Example Where the Government Sought to Pierce the Corporate Veil of a Home Health Agency:

In United States v. Bridle Path Enterprises, Inc., a Massachusetts Federal district court held the owners of a home health agency personally liable for the provider’s Medicare overpayment debt. The provider, Bridle Path, made payments toward the overpayment until they sold all of their assets to another provider. At the time of the sale, $64,807.84 was outstanding on the overpayment liability. The United States sought to hold Bridle Path’s owners personally liable for the Medicare overpayment, using the piercing the corporate veil doctrine. Due to the number of checks Bridle Path wrote to its owners, their home health agency, and their real-estate holding company, the court found that the owners did not treat Bridle Path as a separate corporate entity and pierced the corporate veil to hold the owners liable for the Medicare debt.

 III.  Final Remarks:

If any of the factors above exist, CMS and its Medicare contractors can seek to pierce the corporate veil of a healthcare provider’s company and collect debts from the provider’s owners. These circumstances are not typical for health care providers and are easily avoided by maintaining personal owner dealings separate from all entity business.  Do your practice’s day-to-day operations expose you to unnecessary liability?  If your business was assessed a huge fine and forced into bankruptcy, are you 100% confident that you, as the owner, will be free of individual liability? If you have any questions about this or any other health law issue, call 1 (800) 475-1906 for a complimentary consultation.

Robert W. Liles is a health care attorney experienced in handling prepayment reviews and audits.The attorneys at Liles Parker, Attorneys & Counselors at Law represent health care suppliers and providers around the country. We specialize in regulatory compliance reviews, UPIC audits of Medicare and Medicaid claims, and the defense of proposed State Medical Board disciplinary actions. Need help?  Call Robert Liles for a free consultation:  1 (800) 475-1906.

 

[1] For a detailed discussion of the Unified Program Integrity Contractor (UPIC) audits and investigations currently being conducted, please see our page titled: “A UPIC Audit is Serious Business — Is Your Office Prepared?” 

Ashley Morgan, J.D.

January 7, 2021 by  
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Ashley Morgan, Senior Health Law Counsel
Office: (202) 298-8750
amorgan@lilesparker.com

Practice Concentration and Experience:

Ashley Morgan is a Senior Health Care Counsel at our law firm.  She focuses her practice on regulatory health care compliance matters, fraud and abuse, and reimbursement issues.  Ms. Morgan represents health care providers across the country in connection with a wide variety of health law issues including coverage disputes, documentation concerns, compliance, medical board complaints, and exclusion / termination issues.  She has worked with an assortment of providers including dentists, home health companies, hospice agencies, primary care and specialty physicians, mental health professionals, physical therapists, and licensed acupuncturists.

Ms. Morgan is one of only a small percentage of health lawyers who has also trained and passed the certification examination requirements to become designated as a “Certified Professional Coder.”  On the billing side, she has also obtained her certification as a “Certified Medical Reimbursement Specialist.”  These skill sets have been invaluable when conducting GAP Analyses of a provider’s medical record documentation in order to determine whether the claims meet applicable Medicare, Medicare or private payor coverage and payment requirements. Ms. Morgan has handled claims disputes with major payors including Medicare, Medicaid, various BlueCross BlueShield entities, and UnitedHealthcare.  She has extensive experience working on administrative appeals of large alleged extrapolated overpayments assessed by the Centers for Medicare and Medicaid Services’ (CMS) program integrity contractors — primarily Unified Program Integrity Contractors (UPICs).  She also represents health care providers and suppliers in connection with Comprehensive Error Rate Testing (CERT) audits, Supplemental Medical Review Contractor (SMRC) reviews and Medicare Administrative Contractor (MAC) “Targeted Probe and Educate” (TPE) reviews.  Finally, Ms. Morgan has extensive experience representing our health care clients in connection with private payor audits and investigations by private payor SIUs.

In addition to her considerable experience handling government and private payor claims audits, Ms. Morgan also has successfully defended numerous licensed providers in connection with complaints and disciplinary proceedings brought against our clients by State Medical Boards, State Nursing Boards and other State Licensing Authorities.

In addition to her other certifications, Ashley Morgan is also a “Certified Medical Compliance Officer” and helps clients implement effective compliance programs and provides counsel on mandatory state and industry-specific policies and procedures. In this capacity, Ashley provides both remote and onsite reviews to review regulatory, OSHA and HIPAA compliance audits.

Education:

  • American University Washington College of Law, J.D., cum laude, Top 15%.
  • (Served as the Senior Symposia Editor for the Administrative Law Review).
  • James Madison University, B.S.

Professional Affiliations:

  • Certified Professional Coder (CPC).
  • Certified Medical Compliance Officer (CMCO).
  • Certified Medical Reimbursement Specialist (CMRS).
  • Certified E&M Auditor (CEMA).

Federal Admissions:

  • Eastern District of Virginia
  • District of Columbia District Court

State Bar Admissions:

  • Virginia
  • District of Columbia

Presentations and Speaking Engagements:

  • National Webinar Series, Texas Association for Home Care and Hospice, “Preventing the Revocation of Your Texas Home Health or Hospice Agency from the Medicare Program – Tips on Avoiding an Adverse Action and on Responding to Such an Event” (2019).
  • National Webinar Series, Texas Association for Home Care and Hospice, “The Current Enforcement Environment Facing Texas Home Health, Hospice and Personal Care Agency Owners, Staff and Affiliated Professionals” (2019).
  • National Webinar Series, American Medical Billing Association,Private Payor Risks, Contractual Obligations and Collection Headaches (2019).
  • National Webinar Series, American Medical Billing Association, “Mobile Device Security, Ransomware and Cloud Threats in Billing Workplaces — Risks and Challenges.” (2019).
  • National Webinar Series, Texas Association for Home Care and Hospice, “Texas Home Health Providers Remain Under the Statutory Microscope.  The Impact of the “Review Demonstration Project” on Your Agency” (2019).
  • National Webinar Series, National Alliance of Medical Auditing Specialists, “Practical Considerations for Implementing a Compliance Program” (2019).
  • AMBA 18th Annual National Medical Billing Conference, American Medical Billing Association, Las Vegas, NV, “Negligent Credentialing” (2018).
  • AMBA 18th Annual National Medical Billing Conference, American Medical Billing Association, Las Vegas, NV, “Medicare Revocations and Terminations” (2018).
  • Healthcare Revenue Cycle Conference, Healthcare Business Management Association, Charlotte, NC, “Healthcare Communication Risks”(2018).
  • AHCC Home Health Compliance & Quality Outcomes Conference, DecisionHealth, Dallas, TX, “Emergency Preparedness and Workplace Violence: Ensure Your Agency is Ready to Respond” (2018).
  • National Webinar Series, Exclusion Screening, “Cybersecurity Issues for Your Healthcare Organization” (2018).
  • National Webinar Series, Texas Association for Home Care and Hospice, “Cybersecurity Issues for Home Health Providers” (2018).
  • Ambulatory Surgery Center Association Annual Conference, Ambulatory Surgery Center Association, Boston, MA. “ASC Risk Areas Under the False Claims Act” (2018).
  • PaRADigm Conference, Radiology Business Management Association, San Diego, CA “Evaluating Your Compliance Program for Best Practices” (2018).
  • Annual Meeting, Maryland-National Capital Homecare Association, Baltimore, MD, “Medicare and Medicaid Audits: How do I Handle Them?” (2017).
  • AMBA 17th Annual National Medical Billing Conference, American Medical Billing Association, Las Vegas, NV, “Avoid OIG Fines and Penalties on Exclusion Screening Compliance” (2017).
  • National Webinar Series, American Medical Billing Association, “ADRs, Pre and Post-payment Reviews and Suspension and the Impact on Physician Practices” (2017).
  • National Webinar Series, Exclusion Screening, “Practical Considerations for Implementing a Compliance Program” (2017).
  • National Webinar Series, American Medical Billing Association, “Medicare Termination and Revocation Prevention, Avoiding and Appealing Adverse Actions” (2017).
  • National Webinar Series, American Medical Billing Association, “Balance Billing and Billing Out of Network” (2017).
  • National Webinar Series, Texas Association for Home Care and Hospice, ADRs, Pre-Payment Reviews, Post-Payment Audits and Suspensions – The Impact of these Administrative Enforcement Tools on Home Health and Hospice Agencies (2017).
  • National Webinar Series, Texas Association for Home Care and Hospice, The FY 2017 OIG Work Plan: What Should You Expect? (2016).
  • National Webinar Series, Texas Association for Home Care and Hospice, “The False Claims Act and its Impact on Home Health and Hospice Agencies” (2016).
  • So What! Who Cares? Podcast, Curaport, “Exclusion Screening: Protect Your Patients, Protect Your Practice” (2016).
  • Aurora Illinois American Academy of Professional Coders Chapter, Exclusion Screening, “OIG Exclusion Screening” (2016).
  • National Webinar Series, American Medical Billing Association, “Employer Scrutiny and Screening for Current and New Employees and Providers” (2016).
  • National Webinar Series, Exclusion Screening, “Can I Do My Own Exclusion Screening” (2015).
  • National Webinar Series, Exclusion Screening, “A Critical Component of an Effective Compliance Program: Exclusion Screening” (2015).


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