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Dental Claims Audits are on the Rise

December 18, 2017 by  
Filed under Dental Law Articles

Dentists are under the regulatory microscope.

Both Medicaid and private payor dental claims audits are increasing around the country.

(December 18, 2017):  As you may recall, in July 2017, the Department of Justice (DOJ) and the Department of Health and Human Services, Office of Inspector General (HHS-OIG), conducted the largest ever health care fraud enforcement action ever held on a single day. Two of the health care professionals arrested during this national “Takedown” were Michigan dentists, both of whom were alleged to have billed Medicaid for services not rendered. Unfortunately, as we will discuss in this article, examples of dental claims audits, investigations and prosecutions have become quite common.

In October 2017, Michigan’s Attorney General announced that his office had successfully apprehended a fugitive dentist that had been convicted in May 2017 of twenty counts of Medicaid fraud, six counts of health care fraud, and one count of racketeering.  These incidents of fraud first arose after the dentist was “excluded” from participation in the Medicaid program in 2006. To get around the exclusion, he allegedly provided dental services to Medicaid beneficiaries and billed for his services under the identifying information of another dentist.  Before he could be taken into custody, the defendant apparently fled to the Dominican Republic.  He was captured by officials of the U.S. Marshal’s Service last October.

If you think that this is an isolated story about a sensational dental fraud case, think again. Just last week, the local news in Anchorage, Alaska spotlighted the fact that a local dentist who had been charged with Medicaid fraud was back in court.  As the television anchor reminded her audience, this story first made national headlines after a video surfaced which showed the dentist allegedly performing a dental procedure on a sedated patient,[1] while on a hoverboard.

Has there been a change in law enforcement’s focus with respect to dental providers?  Is your practice now more at risk of a dental claims audit than ever before?  These are the questions we will look at in this article.

I. Background – Insurance Coverage of Dental Services.

The Centers for Medicare and Medicaid Services (CMS) estimates that in 2016, health care spending increased 4.3% and cost approximately $3.3 trillion.  Notably, approximately 4% of this $3.3 trillion was spent on dental services. The amount of money spent on dental services is more than what is spent on home health services and more than twice what is spent on durable medical equipment each year.

Based on spending alone, you would think that law enforcement would have dedicated significant investigation and prosecution resources to this specialty area long ago.  In years past that hasn’t been the case, likely due to the fact that most dental services are not covered under Medicare. As Section 1862 (a)(12) of the Social Security Act provides:

“(a) Notwithstanding any other provision of this title, no payment may be made under part A or part B for any expenses incurred for items or services

(12) where such expenses are for services in connection with the care, treatment, filling, removal, or replacement of teeth or structures directly supporting teeth, except that payment may be made under part A in the case of inpatient hospital services in connection with the provision of such dental services if the individual, because of his underlying medical condition and clinical status or because of the severity of the dental procedure, requires hospitalization in connection with the provision of such services.” (emphasis added).

While eligible Medicaid beneficiaries do, in fact, generally qualify for certain dental program services, both the individuals who qualify for coverage and the types of dental services under each program vary from state to state.  Although the government-funded dental programs in each of these states may have unique coverage provisions, both law enforcement and Special Investigative Units (SIUs) working for private payors have successfully identified a number of common improper practices and schemes conducted by dental professionals.

II.  Recent Dental Improper Billing Practices Pursued by the Government.

To begin, what is “Fraud”? Importantly, it is defined by regulation.  As 42 C.F.R. §433.304 provides, Fraud is “(in accordance with §455.2) . . . an intentional deception or misrepresentation made by a person with knowledge that the deception could result in some unauthorized benefit to himself or some other person. This includes any act that constitutes fraud under applicable Federal of State law.”

In contrast, Abuse is defined at 42 C.F.R. §455.2 as “provider practices that are inconsistent with sound fiscal, business, or medical practices, and result in an unnecessary cost to the Medicaid program, or in reimbursement for services that are not medically necessary or that fail to meet professionally recognized standards for health care. It also includes beneficiary practices that result in unnecessary cost to the Medicaid program.”

Collectively, both fraudulent and abusive billing dental care practices are illegal and may subject a dental provider to administrative, civil and / or criminal sanctions, fines, penalties and damages.  The level of exposure faced is very fact-specific and will vary, depending on the specific dental program that has been defrauded, the conduct alleged and types of damages incurred by the payors and the beneficiaries.

When reviewing the various “schemes” used when committing fraud, it is important to keep in mind that most health care providers, including dental professionals, who engage in wrongdoing, do not merely employ only a single improper billing practice.  As the Government Accounting Office (GAO) found in its study on common Federal health care fraud schemes:

“About 68 percent of the cases included more than one scheme with 61 percent including two to four schemes and 7 percent including five or more schemes.”

Why is this important to know?  Well, when your dental claims are audited (and at some point in the future, your practice will be subjected to a dental claims audit), you need to keep in mind that the reviewers will be taking a broad look at your business referrals, quality of care, documentation, coding, billing and licensure practices.  Each of these areas are likely to be audited even though your audit may have been triggered by a patient complaint regarding a specific service or because you were an outlier with respect to the number of CDT D0210 – Intraoral Complete Film Series procedures you billed to a payor.  Although not by any means all-inclusive, a number of the improper billing practices we have recently seen in government and / or private payor dental audits and investigations have included the following:

1.  Billing for dental services not rendered. While the vast majority of dental professionals work hard to ensure that their billing practices are both fair and accurate, when fraudulent billing does occur, this is often one of the forms it takes. Unfortunately, this type of dental fraud is still relatively common in cases prosecuted by both Federal and State law enforcement authorities.  Moreover, private payor SIUs have routinely identified this in cases they have brought against dental providers.  From a provider standpoint, at first glance, it may appear to be easy to successfully “get away” with this type of fraud.  Frankly, how many patients have any idea what dental procedures have been performed in their mouths? Many patients are sedated when the work is performed.  Even if they are awake, it is highly unlikely that they will know the difference between a costly dental procedure and one that is much less costly.  For a dentist to adopt this attitude would be a serious mistake.  It is essential to keep in mind that there are no more secrets.  What do I mean by this? Your actual dental practices can be determined in a variety of ways:

A.  Audits based on data-mining. The level of coordination and communication between Federal law enforcement investigators, State Medicaid Fraud Control Units (MFCUs) and private payors’ SIUs has grown to the point that they are now extraordinarily effective at sharing information regarding ongoing provider investigations, provider utilization practices, and emerging fraud schemes. Through data mining, they can tell with a high degree of accuracy how long it should take for you to perform all of the dental services you billed in a single day. They will also compare your billing patterns to those of your peers.  If any of your billing practices or patterns appear to be irregular, they will initiate an audit.

B.  Complaints. If you are billing the Medicaid program for services not rendered, you are placing both your financial livelihood in jeopardy and your personal liberty at risk. Under the provisions of the Affordable Care Act (ACA), if you fail to report and return an overpayment within 60 days, you are liable for damages and penalties under the Civil False Claims Act (FCA).  The FCA has special “whistleblower” provisions that allow an individual to essentially step into the shoes of the government and file a case under seal against a wrongdoer. If the government intervenes and there is a settlement, the whistleblower can receive between 15% and 25% of the recovery.  Essentially, this statute makes virtually every one of your employees a potential whistleblower.  If you engage in improper Medicaid billing practices, one of them will eventually identify the wrongful conduct.  Do you want to take risk?  To make matters worse, the government is not restricted to only pursuing such a case under the civil False Claims Act.  Depending on the facts, the government could also pursue the case criminally under 18 U.S.C. §1347 – Health Care Fraud or under 18 U.S.C. §669 – Theft of Embezzlement in Connection with Health Care.

Before moving on to the next category, it is worth noting that some incidents of “billing for services not rendered” may be inadvertent.  For instance, if a patient comes in for a dental service that requires the performance of a multi-stage procedure (such as a crown, dentures or a root canal), most dental plans will not allow you to bill for the procedure until the date that the final stage of the multi-stage procedure is completed.  It is important that you train your billing staff to check each payor plan prior to billing so that multi-stage procedures are billed in accordance with the requirements of each particular payor.  If you aren’t sure how a payor treats such a situation, call the payor prior to billing the procedure or fully disclose the status of the stage of the procedure when you submit the claim.

2.  Misrepresentation of a non-covered service. In some respects, this improper practice is nothing more than another form of “billing for services not rendered.” Simply put, in the cases we have seen where this has occurred, a dentist or dental practice has either purposely or erroneously characterized a non-covered dental service as a covered service. Keep in mind, the definition of a non-covered service varies from 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 you regularly check to ensure that the services you are providing a patient qualify for coverage and payment.

This is especially critical when a dental provider intends to bill a Medicaid beneficiary for non-covered services. Every Medicaid dental payor plan is different.  You should carefully review your Provider Resource Manual prior to billing a Medicaid beneficiary for a non-covered service.  Most Medicaid payors require that certain admonitions be provided to the patient and that a specific form be completed by the patient. A portion of the form used by Liberty Dental Plan, the administrator for the Medicaid dental plan in Nevada, expressly requires the following notice:

3.  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 a 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” rule.  We will address each of these misconceptions.

A.  Credentialing delays. Once again, it is essential that you understand the specific requirements under your payor agreement.  For example, you are credentialed by PAYOR A, but you decide to hire another dentist. Until the new dentist completes the credentialing paperwork for PAYOR A, turns it in, and is accepted as a credentialed provider, more than likely you can cannot bill for his services a treating provider.    

Billing Dentist Versus Treating Dentist

As the ADA Dental Claim Form above reflects, there are separate sections for the “Billing Dentist” and the “Treating Dentist.”  The section titled Billing Dentist is meant to provide the individual dentist’s name or the name of the group practice that is responsible for billing. In contrast, the section titled Treating Dentist is meant to provide the name of the dentist who actually provided the dental services to the beneficiary, within the scope of his / her state licensure.

Unfortunately, we have seen situations where billing staff in offices were unaware of these rules.  Since the actual treating dentist was not credentialed by a payor, they billed the services under the name and number of a dentist that was, in fact, credentialed by the payor.  As you can imagine, with only a rudimentary review of a dentist’s services in a data-mining review, an auditor is likely to quickly determine that a problem exists.  Depending on the payor and the specific facts in the case, a dental practice may be terminated from participation in the plan and may have to repay a significant overpayment to the payor.  Both dentists involved in the misrepresentation may be referred to the State Dental Board for unprofessional conduct.

Although 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 wire fraud. 18 U.S.C. §1343.

B.  “Incident-To” billing. Many medical practices have a distinct billing advantage over dental practices when it comes to the billing of a newly-hired physician’s services. Although every payor’s rules are different, many payors (including Medicare) recognize a billing concept known as “Incident-To.”  If a payor recognizes incident-to, then it would be permissible bill the services of a newly hired physician under the number of an already credentialed supervising physician, as long as certain conditions are met. For instance, if “Direct Supervision” is required, this level of supervision has been defined by regulation to mean that:

42 CFR 410.32(3)(ii) Direct supervision in the office setting means the physician must be present in the office suite and immediately available to furnish assistance and direction throughout the performance of the procedure. It does not mean that the physician must be present in the room when the procedure is performed.”From a practical standpoint, there is no reason why this concept wouldn’t work in a dental practice setting.  However, we have not found a similar provision incorporated in State Medicaid regulations or in State Medicaid Provider Manuals.   Nor have we found it to be permitted by private payor dental plans.  Therefore, we strongly recommend that you do not bill incident-to in the absence of express guidance from your payor that it is permissible to do so.  Instead, take steps to ensure that your dentists and auxiliary staff are credentialed as soon as possible after entering on duty with your practice.

4.  Waiving or Failing to Collect Co-Payments and Deductibles. At the outset, it is worth noting that the ADA Principles of Ethics and Code of Professional Conduct specifically addresses the waiver of co-payment issue in its November 2016 edition:

“5.B.1. WAIVER OF COPAYMENT. A dentist who accepts a third party payment under a copayment plan as payment in full without disclosing to the third party that the patient’s payment portion will not be collected, is engaged in overbilling. The essence of this ethical impropriety is deception and misrepresentation; an overbilling dentist makes it appear to the third party that the charge to the patient for services rendered is higher than it actually is.”

The ADA guidance does not make a distinction between whether a dental provider is an in-network or out-of-network participating provider.  If your practice is a participating provider, your improper waiver of a patient’s co-payment or deductible would also constitute a breach of contract.

Under appropriate circumstances, a health care provider may waive a Medicare co-payment or deductible if a patient can show a bona fide financial hardship.[2]  However, care must be taken when waiving these amounts. The improper waiver of a Medicare co-payment or deductible could constitute a violation of the Federal Medicare / Medicaid Anti-Kickback Statute, and expose you and your practice to potential criminal liability. (See HHS-OIG’s 1994 Fraud Alert).

5.  Unlicensed individuals found to have performed dental procedures. Generally speaking, we have seen two categories of cases where this has occurred, one which is truly egregious and one that was the result of an administrative error.  Each of these situations are discussed below:

A.  Allowing unlicensed staff to provide care. Perhaps the quickest way to get into trouble with both law enforcement and your State Dental Board is to allow non-licensed individuals provide dental care that may only be administered by qualified, licensed personnel. Earlier this year, the New York Attorney General’s Office announced the indictment, arrest and arraignment of a dentist and four unlicensed individuals that the dentist was permitting to perform dental procedures on 110 Medicaid recipients. As the Attorney General was quoted as saying “New York has strong licensing requirements for healthcare, and those who think they can skirt these important safety rules will be held accountable.”

Unfortunately, this is a common occurrence, despite the fact that virtually every state Dental Practice Act has strict requirements governing both the level of supervision that must be exercised over subordinate staff and which tasks may not be delegated to unlicensed personnel.

B.  Unlicensed personnel providing care as a result of an administrative error. This typically occurs when a licensee fails to pay their annual licensing fees in a timely fashion or fails to complete mandatory Continuing Dental Education (CDE) required by their State Dental Board. If you are performing dental procedures and your license has been administratively suspended, a reviewer will still deny each of the claims where you are listed as the treating dentist.

6. Unbundling. Fundamentally, when a health a care provider engages in “unbundling,” he / she takes a global code and breaks it down into its fundamental parts for billing purposes.  The billing of the separate components then yields more than the billing of the single global code.  For instance, in some States, the Medicaid dental coverage and payment rules in place require that cleanings, x-rays, and examinations be billed as part of a single visit.  Similarly, some State Medicaid dental coverage payment rules require that x-rays, oral / facial images, and pre-orthodontic visits be billed as part of a comprehensive orthodontic code.[3]

7. Upcoding. Billing for a dental service or procedure at a higher level than was actually provided is known as “upcoding.” An example of upcoding is illustrated by the August 2017 prosecution of a dentist out of Charleston, West Virginia who pleaded guilty to upcoding. According to the government, the defendant falsely billed Medicaid and its Managed Care Organizations (MCOs) for complex dental procedures (such as the extraction of impacted teeth), when in fact, he actually performed simple extractions.  As a result of this false reporting, Medicaid and its MCOs paid the defendant dentist $172 per extraction of each tooth, rather than $80 per tooth for a simple extraction. The dentist further admitted that he falsely upcoded at least 7,490 tooth extractions, billing more than $1.3 million for those procedures. He further admitted that if those extractions were medically necessary, and if had actually performed the procedures he claimed, then he should have been paid only $599,200.

III.  Don’t Wait Until You Are Facing a Dental Claims Audit – Review Your Practices Now!

Do you have an effective compliance program in place?  How would respond to the following questions?

  • 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.  Keep in mind, this is not a paper exercise.  If legal counsel is not fully engaged and is not supervising the work, it is doubtful that the result of any review will be privileged.  As a final point in this regard, keep in mind that any overpayments identified must be paid back, regardless of whether the results of the dental claims audit qualify as privileged.
  • When was the last time you conducted an audit of your dental business practices? Are your practices free of any possible violations of the False Claims Act or Anti-Kickback Statutes?
  • Have you fully implemented each of your obligations under HIPAA and HITECH? If subjected to an unannounced audit by the Office of Civil Rights or one of its contractors (yes, this can occur), will you be able to show that you are in compliance with all required security, privacy and technical mandates under HIPAA / HITECH?
  • Do you have an effective anonymous compliance reporting mechanism in place? Have you advised and trained your dental practice staff on their obligations to report improper billings or conduct to your practice’s Compliance Officer?
  • Are you screening your dental practice employees, contractors, vendors and contractors through all Federal and State exclusion databases?

Working through these steps (and others), can greatly reduce your overall level of regulatory risk and can assist your practice in implementing an effective compliance program. Need help?  Give us a call.  Our attorneys represent dental practices in both Medicaid and private payor dental audits.  Moreover, we can assist you in assessing your current level of compliance so that you will be better prepared if your practice is audited in the future.

Robert W. Liles defends dentists around the country in Medicaid and dental claims audits.Robert W. Liles serves as Managing Partner at the health care law firm Liles Parker, PLLC.  Our attorneys represent dentists and dental practices around the country in connection with Medicaid audits, private payor audits and State Dental Board actions.  For a complimentary consultation, please give us a call.  We can be reached at: 1 (800) 475-1906.

 

[1] As the reported notes, the defendant allegedly took in 31% of the state’s total Medicaid payments for IV sedation in 2016. Although not discussed, this very well may be how he was identified as a potential target – through data mining.

[2] A copayment waiver based on financial hardship is prohibited if it is not supported by a “good faith” assessment of the individual beneficiary’s financial need. Special Fraud Alert, 59 Fed. Reg. 65372-01, at 65375; 42 U.S.C. § 1320a-7a(i)(6); 42 C.F.R. § 1003.101. The “[r]outine use of ‘Financial hardship’ forms which state that the beneficiary is unable to pay the coinsurance” is insufficient. Special Fraud Alert, 59 Fed. Reg. 65372-01, at 65375.; A copayment waiver based on a failure to collect is prohibited if it is not preceded by a “good faith” collection effort. Special Fraud Alert, 59 Fed. Reg. 65372-01, at 65375; 42 U.S.C. § 1320a-7a(i)(6); 42 C.F.R. § 1003.101. The collection effort must be more than “token” and must be similar to efforts made to collect comparable amounts from non-Medicare patients. Medicare Claims Processing Manual, Ch. 23, § 80.8.1.

[3] Medicaid Compliance for the Dental Professional – Presentation http://www.ada.org/en/~/media/ADA/Public%20Programs/Files/Medicaid_Compliance_for_the_Dental_Professional

Dental Fraud: Dentist Faces 3,974 Years in Prison if Convicted!

November 30, 2017 by  
Filed under Dental Law Articles

Dental Fraud(November 30, 2017):  Earlier this year, Attorney General Jeff Sessions announced the largest ever health care fraud enforcement action by the government’s Medicare Fraud Strike Force.  The fraud “take down” charged 412 defendants across 41 federal districts, including 115 doctors, nurses and other licensed medical professionals, for their alleged participation in health care fraud schemes involving approximately $1.3 billion in false billings. Of those charged, over 120 defendants were charged for their roles in prescribing and distributing opioids and other dangerous narcotics. The charges aggressively targeted schemes billing Medicare, Medicaid, and TRICARE for medically unnecessary prescription drugs and compounded medications that often were never even purchased and / or distributed to beneficiaries. The charges also involved individuals contributing to the opioid epidemic, with a particular focus on medical professionals involved in the unlawful distribution of opioids and other prescription narcotics.  While most of the medical professionals charged with controlled substance violations have traditionally been physicians, nurse practitioners and physician assistants, both state and federal law enforcement authorities are also including dental professionals in their audits of opioid and controlled substance prescribing practices. A recent dental fraud case out of the State of Pennsylvania investigated by agents of the Federal Bureau of Investigation and the Drug Enforcement Administration illustrates how serious federal law enforcement agents and prosecutors are viewing these cases.

I.  Dental Fraud Indictment Charging Pittsburg Dentist:

In early November 2017, the U.S. Attorney’s Office for the Western District of Pennsylvania announced that a federal grand jury had issued a superseding dental fraud indictment charging a Pittsburgh dentist on a variety of controlled substance and related charges. As the superseding dental fraud indictment reflects, the government charged the dentist with:

  • Distribution of Hydrocodone and Oxycodone, Schedule II and III controlled substances, outside the usual course of professional practice;
  • Using or Maintaining a Drug-Involved Premises;
  • Health Care Fraud; and
  • Omitting Material Information from Required Reports, Records, and Other Documents.

II.  Overview of the Dental Fraud Charges Allegedly Committed:

According to the 200-count superseding dental fraud indictment, from 2012 through 2015, the dentist allegedly distributed Hydrocodone and/or Oxycodone, Schedule II and III controlled substances, on 196 occasions, “outside the usual course of professional practice and not for a legitimate medical purpose.” The superseding indictment also alleges that the defendant “knowingly and intentionally used and maintained his dental office for the purpose of unlawfully distributing controlled substances.”  Finally, the superseding indictment alleges that the defendant committed health care fraud (in this case, dental fraud), and supposedly omitted material information from an application for a Drug Enforcement Agency registration number.

Unlike most dentists, the defendant was a participating provider in the Medicare program.[1], [2] The alleged dental fraud supposedly resulted in improper billings and losses to the Medicare, Medicaid, and the managed care organizations associated with each program.  The wrongful conduct also resulted in improper billings and losses to UPMC’s health plan.

III.  Potential Sentence and Fine the Dentist Now Faces:

Here’s where the case appears to leave the rails.  According to the Press Release issued by the U.S. Attorney’s Office, if the defendant is convicted of the charges, the law provides for:

  • A maximum total sentence on all counts of incarceration of up to 3,974 years;[3]
  • A fine of $197,500,000; and
  • A term of supervised release of 598 years, or all.

Yes, that’s right, the government is seeking up to 4,000 years of prison time for this dentist. Notably, 4,000 years ago, Stonehenge was founded and the Bronze Age was just beginning in China.  One can only imagine what the world will be like 4,000 years from now, but one thing is for sure – we will all be long gone!

IV.  What are the Requirements for Prescribing and Documenting Controlled Substances?

A.  Prescribing, Administering and Dispensing Controlled Substances in Pennsylvania.

Over the last six months, a significant portion of the criminal health care fraud cases brought against providers have been based, at least in part, on improper opioid prescribing practices.  A vast majority of these opioid cases have alleged that one or more defendants wrote Prescriptions of oxycodone that were outside of usual medical practice and without a legitimate medical purpose.”  While every case is different, one point we have repeatedly noted is that dental records often fail to comply with applicable State Dental Practice Act requirements.

For instance, in Pennsylvania, under Subchapter C, Section 33.207, when prescribing, administering or dispensing controlled substances, a dentist is required to comply with the following minimum standards under Section 33.207(a)(1):

“(1) Scope of authority. A dentist may prescribe, administer or dispense a controlled   substance only:

         (i)   In good faith in the course of the dentist’s professional practice.

          (ii)  Within the scope of the dentist-patient relationship.

(iii) In accordance with treatment principles accepted by a responsible segment of the profession.”

Before a dentist initially prescribes, administers or dispenses a controlled substance to a patient, a proper dental examination and medical history of the patient must be conducted and documented.  As set out under Section 33.207(a)(2), the dental examination and medical history conducted must be sufficiently thorough “to justify the prescription, administration or dispensation of the controlled substance.”  Applicable regulations require that:

“the examination shall focus on the patient’s dental problems, and the resulting diagnosis shall relate to the patient’s specific complaint. The patient’s dental record shall contain written evidence of the examination and medical history.”

Pursuant to Section 33.207(a)(3), Pennsylvania licensed dentists are required to keep the following records when prescribing, administering or dispensing a controlled substance to a patient that include an entry in the patient’s dental record that contains:

           “(A)   The name, quantity and strength of the controlled substance.

            (B)   The directions for use.

            (C)   The date of issuance.

            (D)   The condition for which the controlled substance was issued.”  

See Section 33.207(a)(3)(i).

Pennsylvania regulations further require that a patient’s dental record contains entries related to the to the issuance of controlled substances, “they shall be retained by the dentist for a minimum of 5 years following the date of the last entry of any kind in the record.” Section 33.207(a)(3)(ii). 

B.  Preparing, Maintaining and Retaining Patient Dental Records in Pennsylvania.

While specific record-keeping requirements are expressly specified by regulation when dealing with controlled substances, that does not absolve a Pennsylvania from his or her basic record-keeping obligations under Section 33.209.  Pennsylvania regulations require the following:

“(a) A dentist shall maintain a dental record for each patient which accurately, legibly and completely reflects the evaluation and treatment of the patient. A patient dental record shall be prepared and maintained regardless of whether treatment is actually rendered or whether a fee is charged. The record shall include, at a minimum, the following:

(1)  The name and address of the patient and, if the patient is a minor, the name of the patient’s parents or legal guardian.

(2)  The date of each patient visit.

(3)  A description of the patient’s complaint, symptoms and diagnosis.

(4)  A description of the treatment or service rendered at each visit and the identity of the person rendering it.

(5)  Information as required in §33.208 (relating to prescribing, administering and dispensing medications) and this section with regard to controlled substances or other medications prescribed, administered or dispensed.

(6)  The date and type of radiographs taken and orthodontic models made, as well as the radiographs and models themselves. Notwithstanding this requirement, the dentist may release orthodontic models to the patient. This transaction shall be memorialized on a form which is signed by the patient. The signed form shall become part of the patient’s record.

(7)  Information with regard to the administration of local anesthesia, nitrous oxide/oxygen analgesia, conscious sedation, deep sedation or general anesthesia. This shall include results of the preanesthesia physical evaluation, medical history and anesthesia procedures utilized.

(8)  The date of each entry into the record and the identity of the person providing the service if not the dentist of record-for example, dental hygienist, expanded function dental assistant, dental assistant, and the like.

(b)  A patient dental record shall be retained by a dentist for a minimum of 5 years from the date of the last dental entry.

(c)  Within 30 days of receipt of a written request from a patient or a patient’s parents or legal guardian if the patient is a minor, an exact copy of the patient’s written dental record, along with copies of radiographs and orthodontic models, if requested, shall be furnished to the patient or to the patient’s new dentist. This service shall be provided either gratuitously or for a fee reflecting the cost of reproduction.

(d)  The obligation to transfer records under subsection (c) exists irrespective of a patient’s unpaid balance for dental services or for the cost of reproducing the record.

(e)  Dentists shall provide for the disposition of patient records in the event of the dentist’s withdrawal from practice, incapacity or death in a manner that will ensure their availability under subsection (c).

(f)  The components of a patient dental record that are prepared by a dentist or an agent and retained by a health care facility regulated by the Department of Health or the Department of Public Welfare shall be considered a part of the patient dental record required to be maintained by a dentist, but shall otherwise be exempt from subsections (a)—(e). The components of a patient dental record shall contain information required by applicable Department of Health and Department of Public Welfare regulations—see, for example, 28 Pa. Code § 141.26 (relating to patient dental records)—and health care facility bylaws.

(g)  This section does not restrict or limit the applicability of recordkeeping requirements in §§ 33.207 and 33.208 (relating to prescribing, administering and dispensing controlled substances; and prescribing, administering and dispensing medications).

(h)  A dentist’s failure to comply with this section will be considered unprofessional conduct and will subject the noncomplying dentist to disciplinary action as authorized in section 4.1(a)(8) of the act (63 P. S. § 123.1(a)(8)).”

Importantly, this is merely a partial listing of the applicable requirements that must be met by a licensed, qualified dentist when prescribing controlled substances.  When is the last time you have reviewed your internal operations and documentation practices?  An essential first step to achieving compliance is to conduct a “GAP Analysis” of your business, clinical, coding and billing practices.  For additional information on the GAP Analysis process, I recommend you review my article covering this issue.

V.  Conclusion:

Importantly, the case against the Pittsburgh dentist discussed in this article is likely a harbinger of future opioid prosecutions and related dental fraud cases that we will be seeing around the country (although I doubt the government will likely tout the potential period of incarceration as they did in this case).

In any event, dentists and oral surgeons around the country need to keep in mind that both state and federal law enforcement and health care regulatory agencies are actively investigating and prosecuting opioid related crimes. In fact, as you may recall, last August, Attorney General Sessions announced the establishment of a new Department of Justice (DOJ) section known as the “Opioid Fraud and Abuse Detection Unit” that is dedicated to accomplishing this goal.  As the government continues to tighten up its monitoring activities of opioid prescription practices in an effort to cut down on instances of perceived fraud and abuse, the scrutiny placed on your dental practice’s documentation, medical necessity, coding and billing practices will undoubtedly grow.  Does your dental practice have an effective Compliance Plan in place? If not, we strongly recommend that you get one! The implementation of an effective Compliance Plan, along with the performance of a GAP Analysis can greatly assist you in identifying possible areas of vulnerability where improvements are needed.

Robert W. Liles defends dentists in claims audits.Robert W. Liles, JD, MS, MBA serves as Managing Partner at Liles Parker, Attorneys and Counselors at Law. Robert represents dental professionals of all sizes around the country in connection with a full range of Medicare, Medicaid and private payor audits, investigations and dental fraud cases.  He also represents dentists in state board actions. For a complimentary consultation, please call Robert at: 1 (800) 475-1906.

[1] Under Section 1862 (a)(12) of the Social Security Act states, “where such expenses are for services in connection with the care, treatment, filling, removal, or replacement of teeth or structures directly supporting teeth, except that payment may be made under part A in the case of inpatient hospital services in connection with the provision of such dental services if the individual, because of his underlying medical condition and clinical status or because of the severity of the dental procedure, requires hospitalization in connection with the provision of such services.”

[2] As noted on the website of the Centers for Medicare and Medicaid Services (CMS), “Medicare will pay for dental services that are an integral part either of a covered procedure (e.g., reconstruction of the jaw following accidental injury), or for extractions done in preparation for radiation treatment for neoplastic diseases involving the jaw. Medicare will also make payment for oral examinations, but not treatment, preceding kidney transplantation or heart valve replacement, under certain circumstances. Such examination would be covered under Part A if performed by a dentist on the hospital’s staff or under Part B if performed by a physician.

[3] The government does point out under the Federal Sentencing Guidelines, the actual sentence imposed would be based upon the seriousness of the offenses and the prior criminal history, if any, of the defendant.

 

Medicaid Dental Audits of Intravenous (IV) Sedation Services.

June 16, 2017 by  
Filed under Dental Law Articles

(June 16, 2017):  Under the Social Security Act, states are required to operate a Medicaid Fraud Control Unit (MFCU).[1]  Each MFCU is tasked with the investigation and prosecution (under state law) of Medicaid providers who engage in fraud or patient abuse.   Last year was rough for dentists participating in the Medicaid program.  As set out in the Medicaid Fraud Control Units Fiscal Year 2016 Annual Report,” there were more open fraud investigations against dentists than against any other type of licensed practitioner providing services to Medicaid beneficiaries.  Additionally, the amount of money recovered by MFCUs in connection with Medicaid dental fraud cases last fiscal year far exceeds the recoveries made with other types of licensed Medicaid practitioners.  What does this mean for your practice?  As a participating dental provider in the Medicaid program, it is essential that you ensure that the services you bill to Medicaid fully qualify for coverage and payment.  This article examines one of the more common problem areas that have been identified by state MFCUs — the billing of intravenous (IV) sedation services by dentists to the Medicaid program.

I.  Law Enforcement is Actively Reviewing IV Sedation Services Billed to Medicaid:

The billing of dental IV sedation services to the Medicaid program is a favorite target of both state and federal auditors and investigators. Now, more than ever before, it is essential that your practice have safeguards in place to assist your dentists in determining the proper level of sedation to be administered.  Moreover, if you believe that IV sedation is needed, have you properly documented why this intensive level of sedation is medically necessary?  Have you documented why less intensive levels of sedation would not meet the needs of a particular patient?  This article examines a number of the issues to be considered when administering and billing for IV sedation to the Medicaid program

II.  Levels of Sedation Used in Dentistry:

It is important to keep in mind that regardless of which level of sedation is ultimately administered, the provider will normally still use a local anesthetic to numb the area of the mouth where the dental procedure is being conducted.  While this article is focused on issues arising when billing for IV sedation services, it is helpful to first outline the various levels of sedation that a dentist may choose from:

  • Minimal Sedation. At this level, a patient is normally sedated nitrous oxide (commonly referred to as “laughing gas”).  The nitrous oxide is administered the nitrous oxide through a mask placed over the patient’s nose.  This minimally sedates the patient, who remains awake but is relaxed throughout the procedure. 
  • Moderate Sedation. Often referred to as “conscious sedation,” this level of sedation can be achieved through the taking of a pill, such as Halcion. Although the pill will make the patient drowsy, the patient remains awake.  Most states require that dentists offering moderate sedation undergo additional training and licensed or certified by their state licensing board.
  • Deep Sedation (IV Sedation) IV sedation, often achieved through a vein in the hand, is commonly used to place a patient under this level of consciousness.  IV sedation can be administered by an anesthesiologist or a properly trained and licensed dental professional (such as an oral surgeon).
  • General Anesthesia.  A dental patient placed under general anesthesia is fully unconscious during the procedure conducted. This is the deepest level of sedation dentistry.  It is usually performed in a hospital surgical environment by an anesthesiologist or a highly trained oral or maxillofacial surgeon.

III. Medical Necessity Requirements When Administering Dental Sedation:

The medical necessity, coverage, documentation and payment rules applicable to dental sedation vary from one state to another.  For instance, as a general rule, if your dental sedation claims are audited by Medicaid, the reviewer will attempt to assess whether level of sedation you administered was medically necessary and appropriate in each particular case.  It is therefore essential that you ensure that you ensure that you are properly trained, certified and / or licensed by the state to provide IV sedation or general anesthesia services prior to administering that level of care. Additionally, keep in mind that Medicaid’s documentation requirements, coverage and payment rules frequently change.  If you intend to provide this level of dental sedation, you need to periodically review the Medicaid Provider Handbook for your state to ensure that your efforts fully comply with applicable requirements.

IV.  Recent Problems Identified When Auditing IV Sedation Services:

Unfortunately, over the past year, state law enforcement personnel have identified a number of ways that IV sedation dental services have been improperly billed to Medicaid. Risk areas that will likely be examined if your IV sedation claims billed to Medicaid are audited include the following:

Risk Area #1:  Billing for IV sedation when the level of sedation actually administered was conscious sedation.  IV sedation is typically reimbursed at a much higher rate than either moderate sedation (conscious sedation) or minimal sedation (nitrous oxide).

Risk Area #2:  Billing for IV sedation on the basis that it was necessary for emergency medical care when, in fact, no emergency conditions were present.  If the medical necessity of IV sedation is supposed to be based on the fact that it was needed for emergency dental care services, an auditor is likely to fist look at where the services were provided.  Some states require that IV sedation must be administered in a hospital or a qualified ambulatory surgical center. To the extent that your state is more flexible on the site of administration, it is still very important that you document the facts and circumstances which constitute the medically necessary emergency conditions that required the use of IV sedation..

Risk Area #3: Billing for IV sedation procedures without justifying in writing, that the service is required for a patient who is uncontrollable under local anesthesia alone.  Most state have identified a number of cognitive and behavioral conditions that make it difficult for a patient to be sedated with only minimal or moderate sedation.  If you are administering IV sedation to a patient based on the fact that a patient is uncontrollable, we strongly recommend that you fully document the reasons that this level of sedation is medically necessary.

Risk Area #4:  Billing Medicaid for IV sedation services at a higher rate for [IV sedation] provided to a Medicaid recipient than dentist charged to other payors.  A number of states have This particular state has broad statutory provisions that restrict a provider from charging a higher rate for any unit of service provided to a Medicaid recipient than the provider charges others (with the exception of what is billed to Medicare).

Risk Area #5:  Submitting a claim for oral sedation when in fact the patient was administered IV sedation prior to the effective date that the dentist was licensed to perform sedation.” Most states require that dentists have specialized training and be certified or specifically licensed by the state to administer IV sedation or general anesthesia.  In this particular case, it was alleged that the dentist purposefully miscoded the level of sedation administered to hide the fact that he / she was not yet licensed by the state to administer IV sedation.

Risk Area #6:  Administering and billing Medicaid for IV sedation on dental patients that were merely receiving teeth cleaning services and did not otherwise qualify for this level of dental sedation.  During an audit, if you have been found to have administered and billed for IV sedation when you are merely cleaning a patient’s teeth, the government will undoubtedly argue that these services were not medically necessary or required.  IV sedation cannot be provided to a patient merely because the patient has requested it or because it would make the dentist’s job easier.

Risk Area #7:  Administering and billing for IV sedation services that were performed in connection with underlying procedures that Medicaid does not cover.”  If a dentist performs care and treatment procedures that do not qualify for coverage and payment under Medicaid, the dentist cannot administer and bill Medicaid for associated IV sedation services, even though the non-covered underlying services may have justified the use of IV sedation.  

Risk Area #8:  Billing for more time spent administering VI sedation services than the actual time that the recipient spent under IV sedation OR in excess of the time medically necessary for the underlying procedure.”  Even if the administration of IV sedation may have been medically necessary, you still cannot bill Medicaid for more time than the patient was actually sedated.  

Risk Area #9:  The defendants were alleged to have backdated and billed Medicaid for IV sedation services on the basis that the underlying facts qualified as “emergent,” when, in fact, the definition of what constitutes a qualifying emergent situation changed.   Improperly backdating medical records in an effort to qualify for coverage under the old rules, is both a violation of your state Dental Practice Act and is likely a criminal offense under both state and federal law.  Don’t do it!

Risk Issue #10:  Failure to conform to the minimum professional standards of dentistry. For example, in one recent case, a dentist was alleged to have engaged in the performance of patient care (regardless of whether actual injury to the patient occurred), that did not conform to minimum professional standards of dentistry.  More specifically, the dentist was alleged to have performed a dental extraction procedure on a sedated patient while riding a hoverboard.  The dentist also allegedly filmed the procedure and distributed the film to persons outside of the dental practice.

Robert Liles represents dentists around the country in Medicaid audits of their dental claims. Robert W. Liles, JD, MBA, MS is an attorney with Liles Parker, Attorneys & Clients at Law.  Our Firm has offices in Washington, DC; Baton Rouge, LA; Houston, TX and San Antonio, TX.  We represent dentists and dental providers around the country in connection with Delta Dental and other insurance payors audits of their dental claims.   Should you have questions, please give Robert a call for a free consultation.  He can be reached at:  1 (800) 475-1906.

[1] At this time, 49 states and the District of Columbia an active Medicaid Fraud Control Unit (MFCU). North Dakota has not established a MFCU.

 

Delta Dental is Conducting Dental Claims Audits Around the Country.

May 16, 2017 by  
Filed under Dental Law Articles, Featured

Delta Dental is Conducting Dental Claims Audits Around the Country(May 15, 2017):  Over the last decade, both state and federal law enforcement agencies have aggressively investigated and prosecuted instances of Medicaid dental fraud.  In recent years, these efforts have been widely implemented (and expanded) by private payor Special Investigative Units (SIUs).  One dental benefits program in particular has been especially active in this regard – Delta Dental.  This not-for-profit dental insurance company has been engaged to administer a number of state[i], federal and private dental benefits programs around the country.  Its administrative responsibilities also include the performance of dental claims audits.

Delta Dental is the proverbial “800 Pound Gorilla” of dental benefits programs.  For more than 60 years, Delta Dental has provided dental coverage to individuals, employers, associations and groups around the country.  At last count, Delta Dental was estimated to provide dental insurance to approximately one-third of all Americans.  More than 73 million individuals (in more than 129,000 associations and groups) are currently covered by Delta Dental Insurance. It has been estimated that Delta Dental processes more than 2.2 million dental claims each week.[ii]  Depending on the jurisdiction, Delta Dental benefit programs may cover state programs (such as Medi-Cal), federal programs (such as TriCare and CHAMPUS) and a host of private, non-governmental associations and groups.  As a result, there is high likelihood that your dental practice currently provides oral health treatment services to patients covered by Delta Dental.  This article examines a number of the audit practices that you may encounter if your dental claims are targeted by Delta Dental’s SIU.

I. How Does Delta Dental Identify Dental Practices for Audit?

The primary targeting tools utilized by dental payors to identify improper dental claims and business practices are “Predictive Modeling and Data Mining.” Other significant sources of audits typically include “Complaints” by beneficiaries, other dental practices (such as competitors), former (and, often disgruntled) employees.  Delta Dental SIU’s have also consistently monitored a dental provider’s “Error Rate” when selecting specific targets for audit and investigation.

  • Predictive Modeling / Data Mining. Delta Dental SIUs actively conduct analyses of a dental providers’ utilization and claims submission practices.  If the care and treatment practices of a specific dentist or dental group appear to be inconsistent with those its peers, the dental provider will be flagged for audit as an outlier.  To the extent that your dental practice or organization is subjected to an audit, it is essential that you determine whether your dental coding and billing practices fully comply with applicable regulations and / or contractual requirements. If so, you must be prepared to explain to an SIU (and in some cases, to law enforcement) why the anomalies identified through data mining or predictive modeling are not evidence of fraud or overpayment.  Dental providers facing this situation should work with experienced legal counsel to ensure that the arguments to be presented fully address the payor’s concerns.  Failure to do so may result in an expansion of a dental claims audit.

  • Understandably, Delta Dental SIUs actively encourage beneficiaries and others to report incidents of possible billing fraud, waste and abuse.   Delta Dental SIUs and other dental payors have repeatedly found that the documentation practices of many dental providers are often incomplete and fail to comply with the minimum standards required by Delta Dental and / or other payors.  As a result, when an SIU investigates a complaint, the Investigator assigned to the case is often unable to establish that the care and treatment services billed were medically necessary and qualify for coverage and payment under the payor’s plan.

  • Error Rate. Not surprisingly, to the extent that a dental provider’s prior claims have been denied, dental payor SIUs have often utilized a provider’s error rate as a targeting tool.  The theory employed by dental payors is that dental providers with a history of denied claims are more likely to have problems documenting medical necessity, meeting a payor’s coverage requirements, properly coding and billing a dental claim, and / or fully documenting a patient’s care.

II. Typical Problems Identified by Delta Dental SIUs When Conducting Dental Claims Audits.

Regardless of the reason(s) an audit of your dental claims may have been generated, once it is initiated, Delta Dental’s SIU isn’t limited in its scope of audit review.  In other words, even though an audit have been pursued due to the fact that a dental provider’s utilization of a specific service is far more frequent that what would normally be expected, the payor’s SIU is not restricted from examining other potential areas of non-compliance.  For instance, several of the problem areas repeatedly identified by Delta Dental when conducting dental claims audits have included:

  • 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 (In the case of a state or federal funded plan that is administered by Delta Dental, such a failure may constitute a violation of the Anti-Kickback Statute.

  • Concealing other available coverage. The failure to identify (and bill) additional dental payors is often cited as a basis for an overpayment in dental claims audits conducted by Delta Dental and other payors.

  • 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.

  • Submitting claims for covered services when non-covered services are provided. The mischaracterization of services in an effort to get an otherwise non-covered service paid by a payor is very problematic.  Dental payor SIUs view such conduct as evidence that a dental provider is purposely attempting to avoid the payment denial of a non-covered service or claim.

  • Providing medically unnecessary services. Delta Dental SIUs are quick to deny claims that do not fully document that the services at issue are both medically necessary and appropriate.  These types of denials often fall into two categories.  The first category would include services that are not authorized under a patient’s plan due to frequency limitations.  The second category would include services that are allegedly not warranted in light of the patient’s dental care and treatment needed.  It is It is important to keep in mind that a service or claim can be medically necessary yet still not qualify for coverage and payment.  Ultimately, every dental service or claim, regardless of whether the beneficiary is a Medicare, Medicaid, or private plan participant, must be examined to see if it qualifies for coverage.  In making coverage determinations, many dental payors have interpreted the phrase “reasonable and necessary” to reflect that a dental service is safe, effective and not experimental or investigational.  When applying these terms, dental payors often look to see whether a dental service has been proven safe and effective based on authoritative evidence, or alternatively, whether a service is generally accepted in the dental community as safe and effective for the condition for which it is used.

  • Patients who use another person’s ID to obtain benefits. While the Affordable Care Act may have made great strides in expanding eligibility and increasing the availability of medical care, covered dental care has remained problematic.  As a result, we have continued to see instances where a covered beneficiary has “lent” his or her identification to a friend or family member who would otherwise not qualify for covered dental care and treatment services.

  • Limiting the availability of appointment times when compensation is capitation-based (i.e., in dental HMO type programs). Dental payors are especially sensitive to situations where it appears that a dental provider has discriminated against a patient due to the fact that the negotiated rate of reimbursement under a dental HMO plan is lower than it is under a fee-for-service plan.  Check your contracts!  This type of conduct can expose a dental provider to significant liability.

III. Steps Your Dental Practice Can Take to Reduce the Likelihood of an Audit.

In today’s environment of sophisticated data mining, it is essential that dentists have a clear picture of how their coding and billing practices compare to those of their peers.  Unfortunately, the “benchmarking” data available to dentists is quite limited.  Nevertheless, a number of private and governmental payor reports issued in recent years can assist a dentist in determining whether its coding and billing utilization appears to be in line with what a payor would normally expect to see.

Importantly, just because a dentist’s coding and billing practices differ from those of their peers, this does not necessarily mean that the dentist’s action are illegal or improper. Over the years, we have seen dentists targeted by private and / or governmental payors due to the fact that their coding and billing actions were different from those of other dentists. In one case, we found that a dentists was recognized as an “expert” by his peers and often received highly-complex referrals by other dental providers. As a result, the number of highly complex procedures performed by the dentist exceeded those of other similarly-situated dentists in the community. In any event, you need to know how your practices compare to those of your peers.  If your dental coding and billing practices make you an outlier, you need to be prepared for an audit and be ready to explain why the services you provide are appreciably different from those of other dentists in the community.

If you have not already done so, you should develop and implement an effective Compliance Program for your dental practice.  If you participate in Medicaid, Medicaid Advantage or another state or federal health benefits program with dental benefits, you are likely already required by law to have one in place.  Additionally, most private payor dental plans are also now requiring that an effective Compliance Program be put into place.  The implementation of a living, breathing Compliance Program can go a long way towards helping your dental practice remain compliant with applicable, statutory, regulatory and contractual requirements.

Robert W. Liles, JD, MBA, MS is an attorney with Liles Parker, Attorneys & Clients at Law.  Our Firm has offices in Washington, DC; Baton Rouge, LA; Houston, TX and San Antonio, TX.  We represent dentists and dental providers around the country in connection with Delta Dental and other insurance payors audits of their dental claims.   Should you have questions, please give Robert a call for a free consultation.  He can be reached at:  (202) 380-8134.

 

 

[i] Delta Dental of California has administered the Denti-Cal Program for the State of California, Department of Health Care Services since 1974.

http://www.denti-cal.ca.gov/provsrvcs/manuals/handbook2/handbook.pdf#page=21

[ii] https://www.deltadental.com/Public/Company/stats2.jsp?DView=AboutDeltaDentalStats

 

Medicaid Dental Audits are Examining Dentist Eligibility to Provide Treatment

Dental Practice(January 9, 2017):  A recent report of the New York State agency that administers the Medicaid program by the Department of Health and Human Services, Office of Inspector General (OIG) further highlights the importance of ensuring that dentists providing services to Medicaid beneficiaries are properly licensed, enrolled as a Medicaid provider and not excluded from program participation.  This article examines the steps that must be taken by all dental practices providing services to Medicaid beneficiaries in order to ensure that their providers meet these basic eligibility requirements.

 

I. Has Your Dental Practice Implemented a Compliance Program?

As an initial step, every dental practice participating in the Medicaid program must develop and implement an effective Compliance Program. Among its many provisions, the Affordable Care Act requires that a “provider of medical or other items or services or supplier within a particular industry sector or category” shall establish a compliance program as a condition of enrollment in Medicare, Medicaid, or the Children’s Health Insurance Program (CHIP).  An effective Compliance Program can greatly assist a dental practice in its efforts to ensure that each of its dentists are eligible to provide and bill for services administered to Medicaid beneficiaries.

II. Are Your Dentists Properly Licensed?

As a first step to determining eligibility, you must ensure that the individuals providing dental services in your practice are properly licensed by the state.  All states require that dentists be properly licensed in order to engage in the practice of dentistry.  For example, anyone seeking to practice a profession in the State of New York must comply with a strict requirements set out in Title VIII of the New York State Education Law.  Under this law, Article 133 – Dentistry and Dental Hygiene, defines the practice of dentistry in §6601.  As the applicable section provides:

  • 6601. Definition of practice of dentistry.

The practice of the profession of dentistry is defined as diagnosing, treating, operating, or prescribing for any disease, pain, in jury, deformity, or physical condition of the oral and maxillofacial area related to restoring and maintaining dental health. The practice of dentistry includes the prescribing and fabrication of dental prostheses and appliances. The practice of dentistry may include performing physical evaluations in conjunction with the provision of dental treatment.

While the definition of the practice of dentistry has been purposely written in broad, general terms, the law clearly reflects that only an individual properly licensed to practice dentistry can engage in the profession or use the title of “dentist.”  As set out this section:

  • 6602. Practice of dentistry and use of title “dentist”

Only a person licensed or otherwise authorized to practice under this article shall practice dentistry or use the title “dentist.”

Should an unlicensed individual engage in the practice of dentistry, they may be guilty of a Class E Felony §6612 of the New York State Education Law.  Moreover, if a licensed dentist aids of abets three or more unlicensed persons in the practice of the profession, that person may be guilty of a Class E. Felony.

As part of your ongoing compliance efforts, you should periodically verify that each of your professionals are properly licensed by the state to practice dentistry and that there are no limitations on their license.  It is also important to monitor the status of any licenses maintained by members of your staff in other states.

III. Is a Dentist Properly Enrolled as a Medicaid Provider?

All states have established strict requirements that must be met if a dentist desires to enroll as a Medicaid provider. For example, the New York Medicaid Enrollment Form expressly states that:

You will be at financial risk if you render services to Medicaid beneficiaries before successfully completing the enrollment process. Payment will not be made for any claims submitted for services, care, or supplies furnished before the enrollment date authorized by the Department of Health.

Unfortunately, when audits of paid Medicaid dental claims are conducted, this is a common risk area that has been identified around the country.  Dental practices bringing on new staff may mistakenly think that it is permissible to bill for dental services provided by a non-credentialed dentist (whose enrollment application with Medicaid is pending) under the number of a credentialed dentist.  In most states, such a practice is improper and could subject a practice to fines, penalties and other sanctions.  The enrollment process is there to help protect the integrity of the Medicaid program.  If an applicant has previously been terminated, denied enrollment, suspended or otherwise sanctioned by Medicaid, a state may determination that it is not in the interests of the program to allow the applicant to participant in the program.  Similarly, an applicant may have been convicted of a health care related crime or may have adverse licensure actions pending in another state. For these reasons (and others), the enrollment process is an essential tool used by the state to filter out applicants that may represent a significant risk to the Medicaid program or its beneficiaries.

IV. Have You Screened Your Dentists and Staff Through Available Databases?

Among its many duties, OIG has been delegated the authority to “exclude” individuals and entities from participating in federal health benefits programs. Depending on the nature of the offense, the decision to exclude an individual or entity may be either mandatory or permissive.  There are currently 38 state databases and 2 federal databases that must be checked every 30 days to ensure that the members of your staff have not been added to the one or more exclusion list. Should you fail to properly screen and inadvertently employ an excluded dentist or other staff member, you may face overpayments, civil monetary penalties and / or other sanctions. Essentially, Medicaid will not pay for any claim if an excluded individual or entity contributed to the basket of services provided to the patient — either directly or indirectly.   Exclusion screening is a fundamental component of an effective Compliance Plan.  There are a number of companies that can provide these screening services for a low monthly cost. Two of our attorneys established a company, Exclusion Screening, LLC to conduct these screening services. For information on their services, you can call:  1 (800) 294-0952.

V. Lessons Learned.

As a participating provider in the Medicaid program, you are obligated to comply with a wide variety of statutory and regulatory provisions.  Confirming the eligibility of each of your professional staff members to provide services to Medicaid beneficiaries is merely one of these requirements. The development, implementation of an effective Compliance Program can greatly reduce your overall level of regulatory risk.

Dental PracticeRobert W. Liles, M.B.A., M.S., J.D., serves as Managing Partner at Liles Parker, Attorneys & Counselors at Law. Liles Parker is a boutique health law firm, with offices in Washington DC, Houston TX, San Antonio TX, McAllen TX and Baton Rouge LA. Robert represents home health agencies around the country in connection with Medicare audits and compliance matters. Our firm also represents health care providers in connection with federal and state regulatory reviews and investigations. For a free consultation, call Robert at: 1 (800) 475-1900.

Dental Claims Audits on the Rise — How to Protect your Practice

October 11, 2016 by  
Filed under Dental Law Articles, Featured

Audit(October 11, 2016): More than 45 million children receive government-funded dental care served under Medicaid and CHIP programs. This equates to approximately 1 out every 3 children in the country.  The dental care provided includes screening services and other preventive, diagnostic, and treatment services that are medically necessary and properly documented. Under the mandatory Early and Periodic Screening, Diagnosis, and Treatment (EPSDT) benefit, children in Medicaid are entitled to dental care at as early an age as necessary, needed for relief of pain and infections, restoration of teeth and maintenance of dental health.”[1]

 I. Dental Claims Audits are Increasing Each Year.

In 1996, the Health Insurance Portability and Accountability Act of 1996 (HIPAA) was enacted.  With the passage of HIPAA, both the U.S. Department of Justice (DOJ) and the Department of Health and Human Services (HHS), Office of Inspector General (OIG) received significant funding to hire prosecutors, investigators, auditors and support staff whose duties are solely focused on the investigation and prosecution of civil and criminal health care fraud violations.  Although the vast majority of health care matters investigated by federal and state law enforcement agencies remain focused on Medicare-reimbursed program areas, over the last five years we have seen a notable increase in the number of Medicaid dental cases investigated by OIG and / or state Medicaid Fraud Control Unit (MFCU) personnel.  It is therefore essential that dentists participating in the Medicaid program take steps TODAY, not after an audit has already been initiated by the government, to conduct an assessment of your medical necessity, documentation, coding, billing and business practices to ensure that your organization is operating within the four corners of the law.

II. What are the Primary Ways that a Dental Practice is Targeted for Audit?

With rare exceptions, “random” audits don’t occur.  If you receive a letter from OIG, your state MFCU or a private dental payor seeking records in connection with an audits, more than likely this request arose due to the one of the following reasons:

  • Predictive Modeling / Data Mining. Most audits of dental claims are the results of data mining. OIG has developed several measures, in consultation with experts at state Medicaid agencies, the Centers for Medicare and Medicaid Services (CMS), the American Dental Association (ADA) ADA, and the American Academy of Pediatric Dentistry (AAPD), to identify providers with billing patterns that are noticeably different than their peers.
  • These can include “complaints” filed by Medicaid beneficiaries, other dentists, other dental practices (such as competitors), disgruntled current and former employees.
  • Overpayment Data. This may be based on a dental practice’s “error rate,” the practice’s history of repeated overpayments or similar data.
  • Audits and investigations of Medicaid dental fraud are often based on referrals from CMS contractors, state MFCUs, and other law enforcement entities.  Notably, private dental insurance payors are also referring cases to the government.
  • OIG and GAO regularly issue reports addressing areas of concern.  These reports are often a harbinger of ongoing and future enforcement initiatives.
  • State Dental Licensing Boards. In a number of states, State Dental Boards, and other licensing entities are regularly making audit referrals to CMS.

When conducting a review of Medicaid dental claim utilization data to identify a potential audit target, the factors or measures considered by law enforcement vary from case-to-case.  Some of the common measures examined include:

  • Dentists who received extremely high payments per child;
  • Daily Volume. Dentists who rendered an extremely large number of services per day;
  • Number of Individual Patient Services. Dentists who provided an extremely large number of services per child per visit;
  • Number of Patients. Dentists who provided services to an extremely large number of children;
  • High Proportion of a Specific Procedure. Dentists who provided certain selected services to an extremely high proportion of children, i.e., pulpotomies and extractions.
  • Amount of Payments Per Medicaid Patient. Distribution of payments per beneficiary for general dentists with 50 or more Medicaid beneficiaries.

An example of the last bulleted point is illustrated below.  When OIG examined payments made to general dentists with 50 or more Medicaid beneficiaries, they were able to identify dental provider whose reimbursements per Medicaid patient were significantly higher than those of their peers.  As a result, the government considers these dentists to be “outliers” is more likely to initiate an audit of investigation of this provider’s practices to ensure that they comply with applicable rules and regulations.

III.  Specific Problems Identified in Previous OIG Medicaid Dental Audits:

Once an audit is initiated, the government’s medical reviewers will carefully assess your documentation to ensure that it meets all applicable requirements for coverage and payment.  Some of the problems found in previous Medicaid dental audits include:

  • Billing Medicaid for unnecessary dental procedures
  • Billing Medicaid for dental procedures that were never performed. When conducting an audit OIG identified billing utilization rates and other documentation irregularities that defied common sense. Several example include:

Example: One dentist and his former employer were unable to produce medical records to support 335 claims totaling $26,657 that were sampled at his practice.

Example: One dentist stated that he can complete a filling procedure in 30 seconds.

Example: Two dentists billed for four or more fillings on one tooth or for two types of fillings on the same surface of the same tooth.

Example: One dentist submitted almost identical claims for eight recipients, billing for three or more surface restorations on the same 11 teeth during one office visit for each of the eight recipients.

  • Billing Medicaid for substandard work. Submitting claims for reimbursement under another dentist’s Medicaid provider number.
  • Billing Medicaid for multiple cleanings within a six-month period.
  • Too many or too few X-rays. In some cases, the x-rays have been taken incorrectly, taken by employees not licensed to operate the x-ray machine, and/or unreadable or even blank.
  • Inappropriate Medicaid billings for dental restorations.

Example: On 37 occasions, four dentists administered 25 or more fillings to one recipient during a single office visit.

  • Inappropriate use of protective stabilization devices. For instance, using a “papoose board” to immobilize the children, regardless of whether or not restraint was necessary.
  • Unnecessary pulpotomies.
  • Altering dates or entering false information on patient charts.
  • Paying kickbacks for referrals of Medicaid patients.
  • Billing for services performed by unlicensed or uncertified employees.

IV. Private Payor Dental Fraud Enforcement Actions:

It is importance to keep in mind that the government is also aggressively investigating and prosecuting cases where dental professionals are alleged to have defrauded a non-government funded, private insurance company.  Pursuant to 18 U.S.C. § 1347, an individual will be found liable for health care fraud if they meet the following definition of:

Whoever knowingly and willfully executes, or attempts to execute, a scheme or artifice to:

(1) Defraud any health care benefit program; or
(2) Obtain, by means of false or fraudulent pretenses, representations, or promises, any of the money or property owned by, or under the custody or control of, any health care benefit program, in connection with the delivery of or payment for health care benefits, items, or services, shall be fined under this title or imprisoned not more than 10 years, or both. If the violation results in serious bodily injury (as defined in section 1365 of this title), such person shall be fined under this title or imprisoned not more than 20 years, or both; and if the violation results in death, such person shall be fined under this title, or imprisoned for any term of years or for life, or both.

In addition, criminal penalties for false claims are also available pursuant to 18 U.S.C. § 287, which allows for punishment of up to five years in prison and a fine calculated under the United States Sentencing Guidelines. Hence, health care enforcement authorities have many tools to utilize when seeking to punish healthcare providers. Dentists that are participating in a state Medicaid dental program must ensure that both their operational and documentation practices are reviewed so that entities processing and examining their patient treatment records can readily ascertain why certain care and treatment claims were submitted.

V. Steps Your Dental Practice MUST Take to Better Ensure Regulatory Compliance:

As a first step, we strongly recommend that you review your state Medicaid and private insurance participation agreements and / or enrollment application.  In all likelihood, you are required to have an effective Compliance Program in place.  For instance, the Texas Medicaid Provider Enrollment Application, prospective Texas Medicaid providers must attest to its Compliance Program Requirement. Under this condition, a provider must verify that in accordance with requirement TAC 352.5(b)(11), the provider has a Compliance Program containing the core elements as established by the Secretary of Health and Human Services referenced in §1866(j)(8) of the Social Security Act (42 U.S.C. §1395cc(j)(8)), as applicable. Does this section look familiar to you? A Texas Medicaid provider must affirmatively attest that he or she has a compliance plan in place prior to submitting his or application for enrollment. However, your dentist client may have simply checked the box “yes” without even realizing what a Compliance Program is or what is required under this section. If your dental practice is audited, one of the first documents requested by OIG and / or a MFCU may be a copy of your Compliance documents.  If you cannot produce them and it is alleged that you falsified your application you may be in serious trouble.

VI. Conclusion:

Dentists participating in their respective state’s Medicaid program must routinely review their practice and documentation procedures. Furthermore, all Medicaid dentists should have an effective Compliance Plan within their practice to reduce the number of audits by Medicaid contractors and become less of a target by MFCUs.  Current dental cases our attorneys are handling include:

  • False Claims Act litigation.
  • Drafting and implementation of an effective Compliance Program.
  • Performance of a “GAP Analysis.”
  • Representation in Medicaid related audits.
  • Representation in private payor audits.

Please let me know if we can assist you or your dental practice in these or other areas of dental law.  Moreover, should you require assistance with drafting a Compliance Plan for your dental practice or have any questions, call us to discuss how we can help with your compliance efforts.

robert_w_lilesRobert W. Liles, M.B.A., M.S., J.D., serves as Managing Partner at Liles Parker, Attorneys & Counselors at Law. Liles Parker is a boutique health law firm, with offices in Washington DC, Houston TX, San Antonio TX, McAllen TX and Baton Rouge LA. Robert represents home health agencies around the country in connection with Medicare audits and compliance matters. Our firm also represents health care providers in connection with federal and state regulatory reviews and investigations. For a free consultation, call Robert at: 1 (800) 475-1900.

[1] 42 C.F.R. § 441.56(c)(2).

 

More Texas Medicaid Dental Audits Are Coming in 2017!

August 23, 2016 by  
Filed under Dental Law Articles, Featured

iStock_000018404988Small(August 23, 2016): During 2014, the Texas Health Human Services Commission’s (THHSC), Office of Inspector General (IG) found itself at the center of a number of controversial investigations and probes associated with its review of Medicaid dental claims.  In response, Governor Greg Abbott appointed Stuart W. Bowen, the former Inspector General for Iraq Reconstruction to serve as the new Inspector General for the THHSC. A graduate of the University of the South (Sewanee), Mr. Bowen set out in 2015 to set the IG’s Office back on course.  Characterizing 2015 as a year of “restructuring and reform,” the IG’s Office entered 2016 ready to reinstitute an aggressive review of problematic Medicaid claims.

I.  Implementation of a New Texas Medicaid “IG Pediatric Dentistry Action Team.”

After learning from its previous missteps, the IG’s Office appears to now be taking a more systematic approach in its audit and investigation of Medicaid pediatric care cases.  As discussed in the IG’s June 2016 Quarterly Report, the IG’s Office continues to be concerned about the pediatric sedation and anesthetization practices being used on some Medicaid patients.  In response, the IG’s Office has established a new “Pediatric Dentistry Action Team” (PDAT).  According to the Quarterly Report, the IG’s Office:

 “Launched the IG Pediatric Dentistry Action Team to identify root causes of recent egregious incidents involving Medicaid pediatric dental patients and recommend improvements to Medicaid policy and contracts to prevent further loss.”

In addition to working with other state and federal law enforcement agencies, the PDAT is also expected to be working closely with the Texas Dental Board.  Notably, the PDAT is slated to examine the following two critical issues:

  • Are Medicaid dental providers meeting the required medical necessity criteria for performing procedures that use anesthetization and sedation?
  • Do the anesthetization/sedation services performed on children meet Medicaid standards?

The PDAT finalized its survey work in July 2016.  It has been conducting fieldwork this month and is expected to continue to do so in September 2016.  A final report, with the PDAT’s recommendations and “lessons learned” is not expected until later this year.

II.  What Does This Mean for My Medicaid Dental Practice?

Assuming the PDAT’s Final Report is issued in November or December 2016, we anticipate that audits and investigations flowing from their review may begin as soon as Spring 2017.  It is therefore imperative that you take steps today to better ensure that your Medicaid dental practice fully complies with all applicable laws and regulations.

As a starting point, it is essential to keep in mind that as a participating provider in the Medicaid Program, you are required to have an effective Compliance Plan in place.

As set out to the Texas Medicaid Provider Enrollment Application, prospective Texas Medicaid providers must attest to its Compliance Program Requirement. Under this condition, a provider must verify that in accordance with requirement TAC 352.5(b)(11), the Provider has a Compliance Program containing the core elements as established by the Secretary of Health and Human Services referenced in §1866(j)(8) of the Social Security Act (42 U.S.C. §1395cc(j)(8)), as applicable.

Does this section look familiar to you? A Texas Medicaid provider must affirmatively attest that he or she has a compliance plan in place prior to submitting his or application for enrollment. However, you may have simply checked the box “yes” without even realizing what a compliance program is or what is required under this section. This may be a serious mistake.  An effective Compliance Plan can better assist you in meeting your statutory, regulatory and contractual obligations as a Medicaid provider.

III.   Areas of Risk Facing Medicaid Dental Providers:

Potential risk areas include, but are not limited to:

  • Failure to meet the medical necessity criteria for performing procedures that use anesthetization and sedation on Medicaid beneficiaries.
  • Failure to meet Medicaid’s standards for the anesthetization and / or sedation services performed on children.
  • Billing Medicaid for unnecessary procedures.
  • Billing Medicaid for procedures that were never performed.
  • Billing Medicaid for substandard work. Submitting claims for reimbursement under another dentist’s Medicaid provider number.
  • Billing Medicaid for multiple cleanings within a six-month period.
  • Too many or too few X-rays. In some cases, the x-rays have been taken incorrectly, taken by employees not licensed to operate the x-ray machine, and/or unreadable or even blank.
  • Inappropriate Medicaid billings for dental restorations.
  • Inappropriate use of protective stabilization devices. For instance, using a “papoose board” to immobilize the children, regardless of whether or not restraint was necessary.
  • Unnecessary pulpotomies.
  • Altering dates or entering false information on patient charts.
  • Paying kickbacks for referrals of Medicaid patients.
  • Billing for services performed by unlicensed or uncertified employees.

IV.  Conclusion:

Our attorneys currently represent a number of Medicaid dentists in Texas (and in other areas of the country) in connection with Medicaid and private payor audits of dental claims.  We are also experienced in handling False Claims Act cases and in working with a dental practice to draft and implement an effective Compliance Plan.  Texas Medicaid dental providers can’t afford to wait for the next round of dental audits and investigations.  Now is the time to review the documentation, medical necessity, coverage and billing practices to ensure that your office is fully compliant with applicable state and federal Medicaid requirements.

robert_w_lilesRobert W. Liles, M.B.A., M.S., J.D., serves as Managing Partner at Liles Parker, Attorneys & Counselors at Law. Liles Parker is a boutique health law firm, with offices in Washington DC, Houston TX, San Antonio TX, McAllen TX and Baton Rouge LA. Robert represents dentists and dental practices around the country in connection with Medicaid and private payor audit actions. Our firm also represents health care providers in connection with federal and state regulatory reviews and investigations. For a free consultation, call Robert at: 1 (800) 475-1900.

Exclusion Screening and Background Checks in Dental Practices

March 31, 2016 by  
Filed under Dental Law Articles, Featured

Dental practice must conduct exclusion screening.(March 31, 2016):  Many of the dental practices around the country do not participate in the Medicaid program and only a small number of dental practices provide services that might qualify for coverage under Medicare.  Notably, the fact that most dental practices only accept cash or a handful of private payor plans significantly reduces their overall level of regulatory risk.  Unfortunately, restricting a dental practice’s payor mix isn’t enough to ensure legal and statutory compliance.  As one recent case reflects, dental practices must remain diligent in their efforts to conduct exclusion screening on applicants prior to employment.  In the case discussed below, the failure to conduct screening ultimately led to the falsification of a number of prescriptions by a practice employee for painkillers.

I.  Basic Case Facts.

In a recent Washington State case, a suspended dental hygienist working as a dental office manager took advantage of her position and to gain access to the practice’s prescription software.  After receiving an anonymous tip, a local police detective contacted the dentist in charge of the office and conducted an audit of the prescriptions ordered using the practice’s software. At that time, it was found that the office manager furtively used the prescription software to print out at least 15 orders for patients who were not patients of the practice.  Upon reviewing the list of individuals who were not patients of the practice, the dentist noted that a number of the individuals were family members of the office manager. The detective subsequently obtained video recordings showing that the dental practice’s office manager had in filled a number of the unauthorized prescriptions.

II.  Background: Exclusion Screening.

The Department of Health and Human Services, Office of Inspector General (HHS-OIG) has been delegated the authority to “exclude” individuals and entities from participating in federal health benefits programs. Exclusion actions taken by HHS-OIG can be either mandatory or permissive.  Regardless of which type of exclusion is pursued by the agency, the action has the impact of barring the participation of an individual or entity in federal health benefit programs, until such time as the agency affirmatively agrees to reinstate the individual or entity back into the program. Similarly, states also have the authority to exclude individuals and entities from participating in state health care benefit programs, such as Medicaid.  As of today, 38 states maintain their own exclusion lists that are separate from those maintained by HHS-OIG. Adding in the System for Award Management (SAMs) database maintained by the General Services Administration, there are currently a total of 40 exclusion databases that must be checked every 30 days. Importantly, neither Medicare nor Medicaid will pay for the claim if an excluded individual or entity contributed in any way to the basket of services provided to the patient — either directly or indirectly.

III. Lessons Learned.

If your dental practice does not participate in Medicare or Medicaid, why should you care whether your employees, agents, vendors and contractors have been subjected to exclusion screening of all federal and state exclusion databases?  Ultimately, it comes down to “risk.”  Regardless of whether your practice takes Medicaid, would you want to employ someone who has been barred from working for a Medicaid provider because he or she has been convicted of fraud?  Similarly, would you want to employ an individual who has been barred from employment by a Medicaid provider because their professional license has been suspended or revoked?  To effectively reduce your level of risk, we recommend that you screen your employees, agents and contractors on a monthly basis.  Exclusion screening is a fundamental component of an effective Compliance Plan.  There are a number of companies that can provide these screening services for a low monthly cost. Two of our attorneys established a company, Exclusion Screening, LLC to conduct these screening services. For information on their services, you can call:  1 (800) 294-0952.

robert_w_lilesRobert W. Liles, M.B.A., M.S., J.D., serves as Managing Partner at Liles Parker, Attorneys & Counselors at Law. Liles Parker is a boutique health law firm, with offices in Washington DC, Houston TX, San Antonio TX, McAllen TX and Baton Rouge LA. Robert represents dental practices and other health care providers around the country in connection with claims audits by federal and state-engaged specialty contractors. Our firm also represents health care providers in connection with federal and state regulatory reviews and investigations. For a free consultation, call Robert at: 1 (800) 475-1906.

Medicare Dental: Significant Overpayments Have Been Made to Hospitals

October 27, 2015 by  
Filed under Dental Law Articles

(October 27, 2015): Late this summer, the Office of Inspector General for the U.S. Department of Health and Human Services (OIG) announced that more than $2 million in payments to dental providers for hospital outpatient dental services would have to be reimbursed to the federal government for failure to comply with Medicare program requirements. The dental providers are located in “Jurisdiction K” which comprises Connecticut, Maine, Massachusetts, New Hampshire, New York, Rhode Island and Vermont. The time period for the performance audit was from January 1, 2011, through October 31, 2013. The reimbursement amount is the highest for all jurisdictions for hospital outpatient dental services for this period.

I. Improperly Paid Hospital Outpatient Medical Dental Services.

Hospital outpatient dental services are properly paid through the Medicare program when such services are performed incident to and as an integral part of a procedure or service covered by Medicare. 42 C.F.R. § 421.404. Medicare coverage is not determined by the value or necessity of the dental care but by the type of service provided and the anatomical structure on which the procedure is performed. 42 U.S.C. § 1862(a) (12).

The OIG performance audit covered 4,495 hospital outpatient dental services and a total payment of $3,005,245 paid by a Medicare contractor for Medicare claims from January 1, 2011 through October 31, 2013. Applying generally acceptable government auditing standards, the audit addressed a stratified random sample of 100 hospital outpatient dental services and contacted the providers that received the payments for those services to determine whether the services complied with Medicare requirements. The audit determined that 85% of the sample was non-compliant with Medicare payment requirements. Specifically, the majority of the improperly paid claims in the sample were for tooth extractions, which is not a covered Medicare service. The audit also disclosed improperly paid claims for tooth socket repairs performed in preparation for dentures.

When contacted by the auditors, the dental providers agreed that the dental claims should not have been paid by Medicare. They defended their submission of the claims, however, by indicating that the patients were covered by both Medicare and Medicaid and they had to first have a claim denied by Medicare in order for the claim to be paid by Medicaid. The fault, they therefore argued, was with the contractor who authorized payment, not the provider. Some providers indicated that they believed the dental services were medically necessary and therefore qualified for payment. Other providers indicated that the services were simply improperly coded as covered services.

II. OIG Recommendations with Respect to these Improper Medical Dental Claims.

The OIG had three recommendations arising from the performance audit for the Medicare contractor responsible for handling these dental claims. First, OIG recommended that the contractor initiate recovery of the $2,276,853 in improper Medicare claim payments from the hospitals. Second, the OIG recommended that the contractor include the results of the performance audit in its provider education programs. Third, the OIG recommended that system edits be implemented to catch improper claims so that the Medicare payments for the dental hospital outpatient services are properly made. The Medicare contractor agreed to implement all three recommendations.

III. Implications from this OIG Medicare Dental Performance Audits.

Dentists should be aware of the requirements for submitting Medicare claims for dental hospital outpatient services. The attorneys of Liles Parker, PLLC have devoted years of work in advising clients on submitting claims for Medicare and / or Medicaid reimbursement. If your dental claims (both Medicare and / or Medicaid) are audited by federal or state authorities (or by one of their contractors), give us a call for assistance.

robert_w_lilesRobert W. Liles, JD, MS, MBA serves as Managing Partner at Liles Parker, Attorneys and Counselors at Law. Robert represents health care providers and suppliers of all sizes around the country in connection with a full range of ZPIC prepayment reviews, postpayment audits, suspension and revocation actions. He also handles False Claims Act cases. For a complimentary consultation, please call Robert at: 1 (800) 475-1906.

Dentists Participating in the Medicaid Program Must Exercise Caution to Avoid False Claims Act Liability

March 9, 2015 by  
Filed under Dental Law Articles, Featured

Dental Claim(March 6, 2015): Earlier this week, the U.S. Attorney’s Office, the U.S. Department of Health and Human Services. Office of Inspector General (HHS-OIG), and the Maine Attorney General’s Office announced the settlement of a civil lawsuit filed against a Maine dentist for violations of the federal False Claims Act. According to the government, the dentist paid $484,744.80 to settle allegations that he had improperly billed MaineCare (Maine’s Medicaid program) for dental services that were not medically necessary and lacked the proper documentation to support the claim. The government also alleged that the dentist billed the MaineCare program for “unsubstantiated tooth extractions” and for “narcotics prescribed without proper justification.”  This case is merely the latest case brought by federal and state prosecutors against dentists and other dental professionals for violations of the federal False Claims Act. The purpose of this article is to briefly examine the background of the federal False Claims Act and to discuss a number of risks currently facing dental practices and dental professionals participating in Medicaid and other federal health care programs.

I.  Background of the False Claims Act:

Sometimes referred to as “Lincoln’s Law,” the federal False Claims Act was first passed in 1863 in response to war profiteering. Among its provisions were measures intended to encourage the disclosure of fraud by private persons through the filing of a qui tam suit. The term qui tam is taken from a Latin phrase meaning “he who brings a case on behalf of our lord the King, as well as for himself.”[1] Under the qui tam (also commonly referred to as “whistleblower”) provisions of the statute, a private person (often referred to as a “relator”) can bring a False Claims Act lawsuit on behalf of, and in the name of, the United States, and possibly share in any recovery made by the government.

II.  Damages Under the False Claims Act:

A person found to have violated this statute is liable for civil penalties in an amount between $5,500 and not more than $11,000 per false claim, as well as up to three times the amount of damages sustained by the government.[2]

The issue of how false claims are to be counted has resulted in considerable litigation over the years. While decisions vary, most courts have held that each submission constitutes a separate claim. Prior to the emergence of electronic filing, it was not uncommon for providers to bundle a set of claims together and send them in to their state Medicaid contractor for processing and payment. This “bundle” would likely constitute a single “claim” for purposes of the False Claims Act. Today, most dentists send in individual claims as they are entered into the dental practice’s electronic billing system. As a result, each time that a dentist (in most instances, an administrative staff member working for, or on behalf of, the dentist) hits “ENTER” to transmit a single claim to the Medicaid contractor for processing and payment, this action would constitute a single claim for purposes of the statute. As one can easily imagine, even a small number of false claims could result in extensive civil penalties and damages.

III.  The Government has Recoveries Under the False Claims Act:

In Fiscal Year 2014 (FY 2014), the U.S. Department of Justice (DOJ) recovered an all-time high record $5.69 billion in settlements and judgments from civil cases brought under the federal False Claims Act (31 U.S.C. §3729 et seq.). Notably, FY 2014 was the first time that False Claims Act recoveries in a single year have exceeded $5 billion. From January 2009 through the end of the FY 2014, the government has recovered more than $22.75 billion. While most False Claims Act cases brought in connection with health care have focused on hospitals and other medical providers, a growing number of cases in recent years have been brought against dental practices and dental professionals.

As in previous years, much of this success has been due (in large part) to the coordinated efforts of the DOJ, HHS-OIG and their state law enforcement counterparts through the Health Care Fraud Prevention & Enforcement Action Team (HEAT). The HEAT program was created in 2009 and was designed to “prevent fraud, waste, and abuse in the Medicare and Medicaid programs, and to crack down on the fraud perpetrators who are abusing the system.”[3] Importantly, dentists and dental practices participating in the Medicaid program should expect both federal and state law enforcements’ efforts to increase, not decrease or remain stable. Notably, the discretionary funding for program integrity activities has continued to rise. The ongoing solvency of the Medicaid program depends on the ability of law enforcement agencies to successfully address the improper, and sometimes fraudulent, conduct committed by individuals and entities participating in this joint federal and state funded programs.

IV.  Statute of Limitations Under the False Claims Act:

The federal False Claims Act’s statute of limitation provisions have been extensively litigated. As a result, it is important that you work with your legal counsel to determine if the dental claims at issue in your case are likely to fall outside of the actionable period. Generally, the False Claims Act has a 6-year statute of limitations. However, this 6-year period can be tolled (under certain circumstances) up to a maximum of 10 years from when the government knew, or reasonably should have known, that the violation occurred. The statute of limitations provisions are found in 31 U.S.C. § 3731(b).

A civil action under section 3730 may not be brought —

(1) more than 6 years after the date on which the violation of section 3729 is committed, or


(2) more than 3 years after the date when facts material to the right of action are known or reasonably should have been known by the official of the United States charged with responsibility to act in the circumstances, but in no event more than 10 years after the date on which the violation is committed, whichever occurs last.

In assessing when the period of limitations runs, a court will look at the time at which either the relator or the government became aware or knew of the violation. In light of the long statute of limitations associated with the False Claims Act, dental practices and other health care providers responding a False Claims Act case have sometimes faced the difficult prospect of locating supporting documentation, x-rays and molds in an effort to defend claims billed to the Medicaid program over a 10-year period.

V.  Conclusion:

What steps can you take to reduce your dental practice’s potential risk? As a starting point, you should ensure that Compliance Plan (tailored to address your dental practice’s specific risks and needs) has been put into place. A Compliance Plan can greatly assist your dental practice in meeting its statutory and regulatory obligations under federal and state law. Developing and implementing an effective Compliance Plan can greatly reduce the likelihood of a False Claims Act violation taking place. Using an effective Compliance Plan as a road map can assist in streamlining your dental practice’s business operations, reduce the possibility of a statutory violation and help to mitigate any damages that might result from a problem you were previously unaware of. Finally, a Compliance Plan can serve as evidence that your dental practice is doing its best to fully comply with applicable laws, rules and regulations. Ultimately, regulatory compliance should be an essential element of your dental office’s corporate culture.

Robert W. Liles is a health care attorney experienced in handling prepayment reviews and audits.Robert W. Liles serves as Managing Partner at Liles Parker PLLC. Liles Parker attorneys represent dentists and other health care providers around the country in connection allegations of overpayments and violations of the False Claims Act. For a free consultation, call Robert W. Liles at: 1 (800) 475-1906.

 

 

[1] False Claims Act Cases: Government Intervention in Qui Tam (Whistleblower) Suits, U.S. Department of Justice, available at www.justice.gov/usao/pae/Documents/fcaprocess2.pdf

(last accessed March 2015).

[2] For example, if a dentist improperly submits a false claim to Medicaid for payment in the amount of $100 and is subsequently paid $100, the dentist would be liable under the False Claims Act for both damages and penalties. Under the False Claims Act, the government may recover up to three times the amount of damages it suffers, which in this example would be $300, plus penalties of between $5,500 and $11,000 per false claim. Collectively, the dentist’s liability would range from $5,800 to $11,300 for a $100 claim.

[3] News Release, Dep’t. of Health & Human Servs., Health Care Fraud Prevention and Enforcement Efforts Result in Record-Breaking Recoveries Totaling Nearly $4.1 Billion (Feb. 14, 2012), available at http://

www.hhs.gov/news/press/2012pres/02/20120214a.html

 

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