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

October 16, 2019 by  
Filed under Dental Audits & Compliance

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Summary of Allegation

Conduct Cited by the Government

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

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

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

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

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

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

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


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

. . . .

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

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

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

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

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

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

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

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

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


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


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


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

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

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

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

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

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


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


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


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


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


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

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

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


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

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

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

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

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

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

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

[8] A copy of the Affordable Care Act can be found at the following link:

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

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

The Dangers of Billing Payors for the Services of a Non-Credentialed Dentist / Non-Participating Dentist

Non-Credentialed Dentist(August 17, 2019):  Over the last year, we have seen a significant increase in the number of Medicaid and private insurance audits of dental claims. A common trigger for these audits included instances in which a practice improperly billed for the services of a non-credentialed dentist while using the identification number of a credentialed provider.  When we discussed this billing audit issue with our dental clients, many were surprised to learn that this practice was improper. Unfortunately, billing for services performed by another dentist using your National Provider Identifier (NPI) can result in a wide range of adverse actions against you and your practice.  This article examines this issue and discusses the potential fallout of engaging in this type of conduct.

I.  What is “Credentialing” and Why is it Important?

The credentialing processes utilized by insurance companies serve as a payor’s first line of defense and are intended to protect patients, help ensure the quality of care being provided, and safeguard the financial integrity of the insurance plan. The Joint Commission describes “Credentialing” as:

“[t]he process of obtaining, verifying, and assessing the qualifications of a practitioner to provide care or services in or for a health care organization. Credentials are documented evidence of licensure, education, training, experience, or other qualifications.”[1]

It is important to keep in mind that the specific credentialing requirements and procedures used vary from one payor to another. For example, dentists who wish to enroll in their State Medicaid Program are typically required to complete multiple credentialing applications.

  • State Medicaid Programs require that each dental practice obtain a provider number; and
  • Each dentist who will be performing dental services on Medicaid patients must be individually credentialed and admitted as a participating provider; and
  • After being admitted as a participating provider in a State Medicaid Program, a dentist must still complete separate credentialing applications in order to become a participating provider in the various Medicaid Managed Care programs that may be available in your state.

II.  What’s the Worst that Can Happen if You Improperly Bill the Services Of a Non-Credentialed Dentist / Non-Participating Dentist Under the Billing Number of a Credentialed Dentist / Participating Dentist?

Let’s consider the following common hypothetical situation: suppose you own a growing dental practice that provides dental care and treatment services to both adults and children.  You are a participating provider in the State Medicaid Program and also participate in a number of Medicaid Managed Care and private payor plans.  You recently hired a new dentist to help with your ever-growing patient caseload.  Although you are fully credentialed by each of the government and private payor insurance plans, your new dentist is still in the process of completing her credentialing applications, and you have been told that it may take 90 days (or even longer) for Medicaid, Medicaid Managed Care and private payors to review and approve the new dentist’s credentialing application.  How are you expected to bill for the dental services provided by your newly hired dentist? Can you bill for the services of a non-credentialed dentist using your provider number?  As we will discuss below, the improper billing of dental services performed by a non-credentialed provider under the provider number of a credentialed dentist can lead to administrative, civil and even criminal liability.

Administrative Sanctions:  At a minimum, if you improperly bill the dental services of a non-credentialed dentist under the name and provider number of a credentialed dentist, you should expect the payor to take the position that each of the improperly billed claims constitute an overpayment that must be repaid to the insurance company.  Unfortunately, in many of the cases we have seen and / or defended, the government and private payors have imposed additional sanctions.  In some instances, where the claims at issue have been covered by Medicaid or Medicaid Managed Care, the Department of Health and Services, Office of Inspector General (OIG) pursued Civil Monetary Penalties against the provider.  We have also defended clients in cases where the payor had terminated the provider’s participation in the payor plan and / or filed a complaint against the dentist with the State Board of Dental Examiners.   Examples of cases where administrative sanctions have been imposed are set out below:

  • Indiana. $125,446 in Civil Monetary Penalties Assessed.  An Indiana dental practice was assessed significant penalties by the Department of Health and Services, Office of Inspector General (OIG) as a result of alleged improper billing practices.   The government alleged that the dental practice submitted claims to the state Medicaid program for dental services that were performed by non-credentialed dentists under the names of dentists who were credentialed with Indiana Medicaid.

  • Massachusetts. $841,120 in Civil Monetary Penalties Assessed. In this case, a Massachusetts-based dental school was alleged to have submitted claims to Medicare[2] for dental services that were provided by non-credentialed dentists.  Additionally, the OIG claimed that the level of dental service billed was not supported by the associated dental records and documentation.

  • Multiple States. Disciplinary Licensure Actions are Pending – Multiple State Boards of Dental Examiners.    We have been (and are currently) involved in multiple matters where Medicaid Managed Care and / or private payor insurance plans have filed complaints with State Dental Boards against dentists for allegedly submitting false or fraudulent claims to the insurance company.  Notably, the improper conduct alleged has consistently included allegations that the dental practice submitted the claims of dental services performed by non-credentialed dentists under the names and NPIs of dentists who were properly credentialed in a particular plan.

Civil Sanctions — False Claims Act Liability.  Most of the cases brought under the False Claims Act[3] against Medicare and Medicaid participating providers in connection with the improper billing of services by a non-credentialed provider involved medical, rather than dental services.  Nevertheless, this remains a significant risk for dental practices that bill Medicaid and Medicaid Managed Care plans.  Two examples of False Claims Act cases that were brought against Medicare providers for the wrongful billing of services performed by non-credentialed physicians are set out below:[4]

  • $500,000 Settlement Under the False Claims Act.  In a case in  the Western District of Oklahoma, a licensed physician allowed an uncredentialed practitioner to use his NPI to bill Medicare for Evaluation & Management (E/M) physical therapy services that the licensed physician did not personally perform or supervise. The government brought an action against the physician under the civil False Claims Act. The defendant had to pay $500,000 to settle the case.

  •  $859,500 Settlement Under the False Claims Act. In this case, a well-respected state university health science center filed a self-disclosure with the OIG for submitting claims to Medicare using the NPIs of multiple physicians who did not render or supervise the services at issue.  The university health science center was forced to pay $859,500 to the government to settle alleged violations of the False Claims Act.

Criminal Sanctions:  In a worst-case scenario, Federal prosecutors may take the position that the wrongful billing of dental services by a non-credentialed provider under the name and provider number of a credentialed provider constitutes health care fraud.  In the case discussed below, a licensed dentist was prosecuted for engaging in various health care fraud schemes.  One of the counts in the prosecution included the dentist’s alleged “fraudulent” submission of services performed by a non-credentialed dentist.  To be clear, we have not seen any Federal prosecutions which were based solely on this specific type of illegal conduct.  Nevertheless, it is clear that if a dentist is alleged to have engaged in a broader scope of fraudulent conduct, prosecutors will not hesitate to include these types of false claims in an Information or Indictment against the physician.

  • Defendant Ordered to Pay $956,448 in Restitution and Sentenced to 33 Months in Jail.  In a recent criminal prosecution (June 2019) in the Middle District of Tennessee, a licensed dentist and his former practice administrator were charged with Conspiracy to Commit Health Care Fraud.  The government further alleged that the defendant dentist “took steps to conceal the fraud by discouraging employees from questioning billing practices” and “instructing employees to lie if questioned by insurance companies.”Ultimately, the defendant dentist pled guilty to the charges and was sentenced to 33 months in Federal prison.  He was also ordered to pay $956,448.00 in restitution.According to the Information filed against the defendant dentist, the defendant engaged in various acts of fraud against the Delta Dental, Cigna, TennCare and DentaQuest programs, including:  (1)  Billing for dental services that were not completed or performed at all;  (2)  Falsifying dates of service to appear to comply with benefit programs’ timeframe and preauthorization requirements;  (3)  Falsifying claims to appear that services had been rendered by a benefits program credentialed dentist; 

III.  When Can Non-Credentialed / Non-Participating Dentists Properly Bill Under the Name and Number of a Participating Dentist?

Not surprisingly, Medicare, Medicaid and private payors have all established their own rules governing when, and if, a non-credentialed dentist can properly bill under a credentialed physician’s name and billing number.  In this section, we examine three of the most common scenarios in which a provider can bill for the dental services performed by a non-credentialed dentist:

Locum Tenens / Substitute Dentist.  The term “locum tenens” is a Latin phrase that means one holding a place.”[5]  It is used to describe an independent contractor dentist or medical doctor who has been hired to temporarily take the place of a staff dentist or medical doctor who is absent due to illness, pregnancy, vacation or continuing dental education courses. It is also sometimes used to fill vacancies when a dental practice is short-staffed.  The rules governing the proper billing of dental services performed by a locum tenens dentist often vary from payor to payor. For instance:

  • Medicare Locum Tenens / Substitute Dentist Rules.[6] As set out under Section 1842(b)(6)(D) of the Social Security Act, a physician may receive Medicare payment for physician[7] services (and for services performed incident to such physician services) that are performed by another physician on behalf of the billing physician if the billing physician is unavailable to provide the services, and the services are furnished pursuant to an arrangement that is either:  (1) Informal and reciprocal, or (2) Involves per diem or other fee-for-time compensation for such services.

In addition, the services must not be provided by the substitute physician over a continuous period of more than 60 days unless the billing physician is called or ordered to active duty as a member of a reserve component of the Armed Forces.  Since the definition of “physician” includes both a Doctor of Dental Medicine and a Doctor of Dental Surgery (see Footnote 7), it can be argued that a Medicare-participating dentist would also qualify for the coverage of this rule

  • Medicaid Locum Tenens / Substitute Dentist Rules. In Texas, “a locum tenens arrangement is not allowed for dentists”[8] under the Texas Medicaid dental program.[9] However, under Texas Administrative Code (TAC) rules §354.1121 and §354.1221, it is permissible to bill for Medicaid dental services performed by substitute dentists as long as certain requirements are met.[10] The approach taken by a state’s Medicaid program with respect to the billing of locum tenens dentists and / or substitute dentists can vary from state to state.

  • Private Payor Locum Tenens / Substitute Dentist Rules. The requirements to bill a private payor plan for the services of a locum tenens or substitute dentist may vary widely depending on the individual plan.  It is therefore important to research the billing rules that apply under each private payor contract.

“Incident to” Billing of Dentist Services.  At the outset, it is important to recognize that there is virtually no Medicare, Medicaid or private insurer guidance discussing whether the “incident to” billing of dental services that are performed by a non-credentialed dentist is permitted (assuming, of course, that the requirements of incident to billing have been fully met).  Despite the absence of written guidance in this regard, based on the way the incident to rule has been applied to physicians, an argument can be made that the concept also applies to dentists.

For example, Medicare has no rules which prohibit a non-participating physician who serves as auxiliary personnel to a participating physician from providing incident to services to the patient. In addition, Medicare does not preclude the supervising, participating physician from billing for incident to services performed by a non-participating physician as long as: (a) the services are reasonable, necessary and otherwise meet all of Medicare’s incident to requirements;[11] (b) the non-enrolled physician is properly licensed by the state; and (c) the incident to services comply with any applicable state law requirements.

Given that the definition of “physician” pertains to both a Doctor of Dental Medicine and a Doctor of Dental Surgery, one could argue that the incident to rules apply to dental services as well as general medical services.  Unfortunately, such an exception would only apply to dental services that qualify for coverage and payment by Medicare.

Medicaid, Medicaid Managed Care and private payor insurance plans have consistently opposed the applicability of incident to billing to dental services, even though nothing in their participation agreements mentions such billing practices.

IV.  Reducing Your Level of Risk:

There are several steps that your dental practice can take to better comply with the credentialing and billing requirements that have been established by the Medicare, Medicaid, Medicaid Managed Care and private payor insurance programs.  These include:

  • Plan ahead by starting the credentialing process as soon as possible when a new dentist joins the practice.
  • Restrict non-credentialed dentists from performing dental services on patients covered under a payor plan that requires credentialing.
  • Until new hires are credentialed, have them limit their services to self-pay patients or other services that do not require credentialing.
  • Read your enrollment applications and their associated payor contracts. What are the credentialing requirements that must be met?
  • Does the insurance payor recognize incident to billing of dental services? Some private payor plans expressly prohibit the use of incident to billing.  If that is the case, and a provider knowingly billing for services performed by a non-credentialed provider under the name and NPI of a credentialed provider, the insurance company may argue that the provider has committed health care fraud.  

Robert W. Liles Healthcare AttorneyRobert W. Liles serves as Managing Partner at the health law firm, Liles Parker, Attorneys and Counselors at Law.  Liles Parker attorneys represent dentists, dental practices and other health care providers around the country in connection with Medicare, Medicaid and private payor dental claims audits.  We also represent dentists in connection with State Dental Board complaints and investigations.  Are your dental claims or services currently being audited or under investigation?  We can help.  For a free initial consultation regarding your situation, call Robert at: 1 (800) 475-1906.


 [1] See

[2] Although traditional Medicare Part A does not cover most dental care treatment services, it may cover certain dental procedures that are necessary for an otherwise covered service to be completed.  For instance, a Medicare patient may obtain coverage for certain dental work in connection with jaw surgery.  Additionally, several Medicare Advantage plans now cover routine vision and dental procedures.

[3] 31 U.S.C. § 3729-3733. The Federal civil False Claims Act is the primary civil enforcement tool used to combat fraud against the United States.  The False Claims Act imposes civil monetary penalties and treble damages on any person who knowingly submits, or causes to be submitted, a false claim to the government for payment.

[4] It is important to note that the two cited False Claims Act cases involved the submission of claims to the Medicare program. In these cases, the government noted that the improperly billed services were not performed or supervised by the credentialed provider under whom the service was billed.  This language reflects the exemption that if Medicare’s “Incident To” requirements are otherwise met, the services of non-credentialed physician can, in fact, be billed under the name of the supervising, credentialed physician.

[5] The Concise Oxford English Dictionary (Eleventh Edition).

[6] Please note, Medicare no longer uses the term “locum tenens” when referring solely fee-for-time compensation arrangements.  Under Section 16006 of the 21st Century Cures Act, the term “locum tenens arrangements” is now used to refer to both fee-for-compensation arrangements and reciprocal billing arrangements.

[7] As set out on CMS’s website, the definition of “Physician” includes the following:

“For the purposes of Open Payments, a “physician” is any of the following types of professionals that are legally authorized by the state to practice, regardless of whether they are Medicare, Medicaid, or Children’s health Insurance Program (CHIP) providers:

  • Doctors of Medicine or Osteopathic Medicine
  • Doctors of Dental Medicine or Dental Surgery
  • Doctors of Podiatric Medicine
  • Doctors of Optometry
  • Chiropractors

Note: Medical residents are excluded from the definition of physicians for the purpose of this program.”


[9] Notably, that is not the case when it comes to medical doctors.  Texas Medicaid does permit locum tenens arrangements for physicians.  As set out under Section 9.2.2 of the Texas Medicaid Provider Procedures Manual, “Physicians may bill for the service of a substitute physician who sees clients in the billing physician’s practice under either a reciprocal or locum tenens arrangement.”  A complete rendition of Section 9.2.2 can be found at:

[10] These requirements include, but are not limited to:

“Dentists who take a leave of absence for no more than 90 days may bill for the services of a substitute dentist who renders services on an occasional basis when the primary dentist is unavailable to provide services. Services must be rendered at the practice location of the dentist who has taken the leave of absence. A locum tenens arrangement is not allowed for dentists.

This arrangement will be limited to no more than 90 consecutive days. Under this temporary basis, the primary dentist (who is the billing agent dentist) may not submit a claim for services furnished by a substitute dentist to address long-term vacancies in a dental practice. The billing agent dentist may submit claims for the services of a substitute dentist for longer than 90 consecutive days if the dentist has been called or ordered to active duty as a member of a reserve component of the Armed Forces. Medicaid and CSHCN accepts claims from the billing agent dentist for services provided by the substitute dentist for the duration of the billing agent dentist’s active duty as a member of a reserve component of the Armed Forces.

Providers billing for services provided by a substitute dentist must bill with modifier U5 in Block 19 of the American Dental Association (ADA) claim form.

The billing agent dentist may recover no more than the actual administrative cost of submitting the claim on behalf of the substitute dentist. This cost is not reimbursable by Medicaid or CSHCN.

The billing agent dentist must bill substitute dentist services on a different claim form from his or her own services. The billing agent dentist services cannot be billed on the same claim form as substitute dentist services.

The substitute dentist must be licensed to practice in the state of Texas, must be enrolled in Texas Medicaid, and must not be on the Texas Medicaid provider exclusion list.

The dentist who is temporarily absent from the practice must be indicated on the claim as the billing agent dentist, and his or her name, address, and National Provider Identifier (NPI) must appear in Blocks 53, 54, and 56 of the ADA claim form.

The substitute dentist’s NPI number must be documented in Block 35 of the ADA claim form. Electronic submissions do not require a provider signature.”

 [11] As discussed in MLM Matters Number: SE0441:

“To qualify as “incident to,” services must be part of your patient’s normal course of treatment, during which a physician personally performed an initial service and remains actively involved in the course of treatment. You do not have to be physically present in the patient’s treatment room while these services are provided, but you must provide direct supervision, that is, you must be present in the office suite to render assistance, if necessary. The patient record should document the essential requirements for incident to service. More specifically, these services must be all of the following:

  • An integral part of the patient’s treatment course;
  • Commonly rendered without charge (included in your physician’s bills);
  • Of a type commonly furnished in a physician’s office or clinic (not in an institutional setting); and
  • An expense to you.”

Additionally, in an office setting:

“In your office, qualifying “incident to” services must be provided by a caregiver whom you directly supervise, and who represents a direct financial expense to you (such as a “W-2” or leased employee, or an independent contractor).

You do not have to be physically present in the treatment room while the service is being provided, but you must be present in the immediate office suite to render assistance if needed. If you are a solo practitioner, you must directly supervise the care. If you are in a group, any physician member of the group may be present in the office to supervise.”



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

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

Dental Claims

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

I. Aetna SIU Dental Enforcement Activities:

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

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

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

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

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

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

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

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

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

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

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

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

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

IV. Examples of Improper Dental Coding and Billing Practices:

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

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

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

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

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

VI. Conclusion:

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

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

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

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

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

[3] Aetna Facts, can be found at:

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

Mobile Dentistry in Texas – An Overview of Regulatory Risk Areas to be Considered

December 10, 2018 by  
Filed under Dental Audits & Compliance

Mobile Dentistry(December 7, 2018):  Each state sets their own licensure requirements, rules and regulations regarding the practice of dentistry, all of which are subject to change. While there are differences from state to state, the approach taken by most states with respect to the practice of dentistry is fairly consistent. After conducting a review of several other states’ regulations, it appears that the requirements imposed by the State Board of Dental Examiners (SBDE) on dentists in Texas is generally in line with that of other states.  Having said that, the degree of regulatory oversight that has been placed on mobile dental practices may vary widely from state to state.  This article examines the status of mobile dentistry in Texas and outlines a number of compliance concerns that should be addressed by mobile dental providers operating in both Texas and other states.

I. Background of Mobile Dentistry in Texas:

The regulations[1] covering mobile dentistry went into effect on September 1, 2001 and require that “every mobile dental facility, and except as provided herein, every portable dental unit [2] operated in Texas by any entity must have a permit as provided by this title (relating to Mobile Dentistry Facilities[3]).”[4] There are only a limited number of circumstance in which a licensee without a permit for a portable dental unit may provide dental services through the use of dental instruments and equipment taken out of a dental office.[5]

Notably, the SBDE implemented the mobile dentistry permit requirements despite the fact that the Texas Dental Practice Act [6] does not expressly authorize the Board to issue permits or regulate these facilities.[7] In the absence of clear authority to do so, why did the Board issue these mobile dentistry regulations? As discussed in the Texas Register,[8] the SBDE imposed these permit requirements in order to be able to answer:

“inquiries from legislators, local officials, and other states agencies or the public regarding any mobile or portable dental operations. . . Of great concern to the Board is whether the services are provided in a manner to meet standard of care requirements, whether arrangements have been made for follow-up care, especially in emergency situations, and whether records of treatment provided will be available to the patients.”

II. State and National Concerns Driving the Regulation of Mobile Dentistry:

The need for mobile dentistry oversight has been echoed by regulators across the country. In numerous articles, the benefits (and concerns) of mobile dentistry have been discussed. One such article mentioned a study published in the July 2009 Journal of the American Dental Association (JADA, Vol. 140:7). In that study, researchers from the University of Michigan found that programs providing only preventive services may actually result in fewer children getting comprehensive dental care. One reason for this, is that:

“[O]nce someone has billed for examining or x-raying a patient, Medicaid generally won’t reimburse another dentist for doing these services for at least another six months . . . As a result, some patients may be getting fluoride or sealants at the expense of having cavities filled.”

While this study focused on Medicaid patients only, the same fears can be mirrored for all patients. State regulators across the country have expressed concern that mobile dental units will be used to collect as much money as possible while leaving dangerous conditions untreated. If a mobile dental unit discovers an issue they cannot or will not treat, it could be difficult for another provider to perform the care the patient requires without the potential duplication of diagnostic dental procedures. This is especially true if the patient does not receive a copy of their dental record. The new provider may have to repeat x-rays or conduct their own clinical exam to determine the necessary treatments, which may or may not be covered by the patient’s insurance. If the patient does not have insurance, or their insurance refuses to pay, the patient may be required to pay for the repeated service. If the patient is unable or unwilling to pay for these services, the patient could suffer devastating consequences. The patient may also be exposed to higher levels of radiation due to the need to perform more x-rays. These fears, among others, have led to many states to regulate mobile dentistry.

III. Differences Between Texas’ Regulation of Mobile Dentistry Versus How the State Regulates Bricks and Mortar Based Dentists:

Mobile dentist providers will be the first to argue that the regulations Texas has placed on their business model are more strict than those imposed on traditional brick and mortar based dental practices. While brick and mortar dental practices must comply with a number of regulatory requirements, mobile dentist providers must comply with all of those primary requirements AND the extra regulatory mandates specifically laid out for mobile dentists in the Texas Administrative Code.[9]

A. Specific Requirements Imposed on Mobile Dental Practices.

A licensed Texas dentist, organization authorized by the Dental Practice Act, or other organization as defined by rule 108.41(3) and approved by the SBDE that wishes to operate a mobile dental practice must apply to the Board for a permit and pay the application fee. If all requirements are met, then a mobile dental practice permit can be issued. A list of the requirements can be found at §108.42. A few of the specific requirements that all applicants that are not a governmental or higher education entity must provide include:

  • The name and address, and when applicable, the license number of each dentist, dental hygienist, laboratory technician, and dental assistant associated with the facility or unit for which a permit is sought;
  • A copy of a written agreement for the emergency follow-up care for patients treated in the mobile dental facility, or through a portable dental unit, and such agreement must include identification of and arrangements for treatment in a dental office which is permanently established within a reasonable geographic area;
  • A statement that the mobile dental facility or portable dental unit has access to communication facilities which will enable dental personnel to contact assistance as needed in the event of an emergency;
  • A statement that the mobile dental facility or portable dental unit conforms to all applicable federal, state, and local laws, regulations, and ordinances dealing with radiographic equipment, flammability, construction standards, including required or suitable access for disabled individuals, sanitation, and zoning;
  • A statement that the applicant posses all applicable county and city licenses or permits to operate the facility or unit;
  • Either a statement that the unit will only be used in dental offices of the applicant or other licensed dentists, or a list of all equipment to be contained and used in the mobile dental facility or portable dental unit, which must include:

(A) A dental treatment chair;
(B) A dental treatment light;
(C) When radiographs are to be made by the mobile dental facility or portable dental unit, a stable portable radiographic unit that is properly monitored by the authorized agency;
(D) When radiographs are to be made by the mobile dental facility or portable dental unit, a lead apron which includes a thyroid collar;
(E) A portable delivery system, or an integrated system if used in a mobile dental facility;
(F) An evacuation unit suitable for dental surgical use; and
(G) A list of appropriate and sufficient dental instruments including explorers and mouth mirrors, and infection control supplies, such as gloves, face masks, etc., that are on hand.[10]

The rules also lay out operating requirements for a mobile dental facility or portable dental unit. These rules require among other things, that before beginning a session a mobile dental practice operator must arrange for:

“(A) access to a properly functioning sterilization system;
 (B) ready access to an adequate supply of potable water; and
 (C) ready access to toilet facilities.”

All permit holders except government or higher education entities, also must submit to the SBDE on the 10th work day of September each year a written report for the preceding year ending August 31, “detailing the location, including a street address, the dates of each session, and the number of patients served and the types of dental procedures and quantity of each service provided; except that such written reports may exclude information concerning dental services provided to less than three individuals at a private residence.” The dental permits expire one year after the issuance date or whenever the permit holder is no longer associated with the Mobile Dental Facility or Portable Dental Unit, whichever is sooner. The permit is not transferable and can be canceled by the Board after an investigation and opportunity for a hearing is given. These are only a few of the myriad of operating requirements covering mobile dentists.[11]

III.  Different Regulations Apply to Mobile Dentists Who Serve Office Buildings than Mobile Dentists Who Serve Elderly Residents of Nursing Homes and / or Patients in Rural Areas:

All mobile dental facilities and portable dental units operated in Texas by any entity must hold a permit issued by the SBDE.  However, the following exceptions have been made for licensees treating residents of nursing homes or convalescent facilities:

“Licensees who do not have a permit for a portable dental unit or who are employed by a dental organization not having a portable dental unit permit may provide dental services through the use of dental instruments and equipment taken out of a dental office without a permit if . . . the treatment is provided to residents of nursing homes or convalescent facilities.”

This exception therefore allows for a dentist to more easily provide care to the elderly who live in nursing homes or convalescent facilities since the permit is not necessarily required.  There is no such exception for rural areas.[12] Otherwise, the requirements for mobile dentists who serve office buildings, the elderly, or rural areas are the same.

IV.  How is Mobile Dentistry Treated in Other States?  

Many states now have mobile dentists who serve office buildings and commercial customers (including, but not limited to, Maryland, Virginia, Washington D.C., New York, Tennessee, and California). Many of these mobile dentists offer their services to a wide range of customers (corporate environments, private homes, and/or nursing homes / assisted living facilities) rather than just specializing in providing services to office buildings or commercial customers. However, there are other providers who specifically focus on commercial customers as well.

V. How Does the Extent of Regulations Applicable to Texas Mobile Dental Practice Compare with that of Other States?

Each state is unique in how they approach mobile dentistry. Many states, such as Missouri, have not laid out any specific requirements for mobile dentists. All dentists in Missouri must abide by the same regulations as issued by the Missouri Dental Board. Other states, such as West Virginia, appear to have a bit more extensive regulation of mobile clinics than Texas. West Virginia requires for-profit organizations to pay $1,500 for a mobile clinic permit, the permit must be renewed annually, must provide handicap access via ramp or lift, have ready access to toilet facilities, have a covered, non-corrosive container for deposit of waste materials including biohazardous materials, have a Carbon Monoxide Detector and Smoke Detector installed, an AED on board, among other requirements.  A few states such as California and Mississippi also require on-site inspections of the mobile dental facilities, which Texas does not require.

VI. Mobile Dentistry Fraud Cases:

In recent years, both federal and state enforcement authorities have ramped up the investigation and prosecution of individuals and entities alleged to have submitted fraudulent dental claims to Medicaid for reimbursement. While only a handful of cases have been brought against mobile dentistry facilities, the cases that have been prosecuted are instructional.  The following two cases are reflective of the types of wrong-doing typically identified in mobile dentistry fraud cases:

  • New Jersey. The owner of a mobile dental company was prosecuted, found guilty and ordered to pay $7 million in restitution and serve 8 years in prison.  In this case, state prosecutors alleged that the dentist-owner and his staff overbilled or submitted false Medicaid claims for elderly patients in nursing homes, assisted living facilities, adult day care facilities and private homes. More specifically, the government claimed that:
  1. The defendants overbilled Medicaid for more services than the mobile dentists could have rendered in one day.
  2. The defendants billed for specific dental services that were not actually performed by the dentists.
  3. The mobile dentistry company billed Medicaid for a “behavior management” charge on almost every pediatric patient, even if it was not needed.
  4. The mobile dentistry company charged Medicaid for a “trip charge” to almost every Medicaid patient, even though the dentists were only entitled to one trip to a facility, regardless of how many patients were examined or treated.
  • Indiana. Federal prosecutors pursued Medicaid fraud charges against the owner of a mobile dentistry company that was alleged to have applied sealants (a non-covered services under Ohio and Indiana Medicaid rules) to the teeth of low income children in Ohio and Indiana, but billed the dental procedures as fillings (a covered serviced under Ohio and Indiana Medicaid rules) when submitting the claims to Medicaid for reimbursement.  A U.S. District Court judge sentenced the defendant to 3 ½ years in prison for his role in the fraudulent conduct.

VII. Additional Risk Areas to Consider:

As you may recall, the Affordable Care Act (ACA) passed in 2010 includes a provision which authorizes the Secretary, HHS to mandate that health care providers and suppliers establish a compliance program as a condition of their enrollment in Medicare, Medicaid, or the Children’s Health Insurance Program (CHIP).  A number of states have also mandated that Medicaid providers implement an effective Compliance Program.  Does your mobile dentistry company have an effective compliance program in place?

As part of your compliance obligations, mobile dentistry companies billing Medicaid have an affirmative obligation to regularly audit and monitor their documentation to ensure that  claims submitted to Medicaid properly qualify for coverage and payment.  Problem areas we have noted include:

  • Failure to comply with state Medicaid and / or private payor documentation requirements. The most common deficiency we have seen in internal audits conducted has been a recurring failure of dentists to comply with state regulatory documentation requirements.  In cases where the state requirements were met, it was quite common to find the documentation requirements cited by Medicaid, Medicaid Advantage and private payor dental payor plans were not met.
  • Failure to record a complete medical history for each pediatric patient. A detailed medical history should be provided for each pediatric patient and should be updated at each visit. The American Academy of Pediatric Dentistry (AAPD) recommends that a patient’s medical history includes the following elements or “pieces of information” along with an elaboration of positive findings: medical conditions and / or illness; name and telephone number of primary and specialty care providers; hospitalizations / surgeries; anesthetic experiences; current medications; allergies / reactions to medications; other allergies / sensitivities; immunizations status; review of systems; family history; and social history.
  • Failure to record observations from x-rays. The dental notes did indicate, for most patients, when x-rays were taken. The radiographs typically accompanied the file but were not of diagnostic quality. Additionally, dentists failed to include any observations or interpretations from their review of the radiographs.  AAPD notes that patient progress notes should include details on radiographic exposures and the dentist’s interpretations.
  • Failure to properly document support for medical necessity. Pediatric dental records reviewed did not contain the name of the minor patient’s parent and many times the records contained identical narratives. Progress notes for each visit should contain the date of service, chief complaint or reason for the visit, radiographic exposures and interpretations, treatment rendered, and post-operative instructions and prescriptions.  Additionally, our reviews have found that there was often little detail provided to support medical necessity of pediatric dental treatments provided. For example, prophylaxis was typically provided because it was medically required. Although dental notes often indicated that plaque was visible, the notes often failed to  specify any areas of build-up. Also, the level of decay was typically not included to support services such as fillings and crowns.
  • Failure to sign dental treatment notes. Rendering dentists have often failed to sign or initial each entry on the patient’s record pertaining to the treatment he or she rendered. Treating dentists and hygienists or assistants should sign or initial each entry on the patient’s record that pertains to a treatment he or she rendered.  This is often a state regulatory requirement and is typically required by both governmental and private payor agreements.
  • Missing dental treatment plans / consent forms. Completed dental treatment plans and consent forms have frequently been found to be missing from patient dental records. The dental treatment plans that were included were typically signed by the pediatric dental patient’s parent, but the signatures were often not dated. Signatures should be dated and these dates should correspond to the date listed as the date of authorization noted on the claim form. Many of the dates of authorization for the “signatures on file” on the claim form were after the date of service, which is an error cited in recent audits.
  • Failure to document reasons supporting the inhalation of nitrous oxide. Nitrous oxide is frequently utilized to ease pediatric dental anxiety. However, auditors have routinely found that the patient’s behavior was frequently recorded as cooperative or no details about the patient’s behavior were included that would justify the use of nitrous oxide. According to the AAPD, nitrous oxide may be appropriate for patients who have the following indications:
    • Are fearful, anxious, or obstreperous;
    • Have special health care needs;
    • Have a gag reflex that interferes with dental care;
    • Cannot utilize local anesthesia; or
    • Are undergoing a lengthy dental procedure.

Additionally, prior to administering nitrous oxide, informed consent should be obtained from the patient’s parent and documented in the patient’s record.   Also, be sure and properly document the nitrous oxide dosage, duration, and post-treatment oxygenation procedure.

  • Excessive number of treatments administered to a pediatric patient in a single visit. Medical dental claims with a high number of treatments are frequently identified in data mining runs for audit and will likely be subject to close scrutiny in an audit.  Dentists should include more detail regarding the level of decay present in each tooth to support the services provided.
  • Failure to properly credential each treating dentist with Medicaid. Are your dentists properly credentialed with Medicaid and other payors? The billing of dental procedures under another dentists number (typically due to the fact that the rendering dentists has yet to be credentialed) may constitute an overpayment or even fraud. We are seeing a huge rise in the number of enforcement cases based on this type of improper conduct.

VIII.  Conclusion:

Medicaid claims for dental services and procedures are under the regulatory microscope by federal and state enforcement agencies around the country.  Now more than ever, it is essential that you fully understand your obligations under the law with respect to medical necessity, signature, consent, documentation, coding and billing requirements when billing dental claims.

Is your mobile dentistry company being audited?  Start out on the right path when responding to a request for dental records and claims information – give us a call.  We can help.

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

[1] 22 Tex. Admin Code §108.40

[2] As set out under Tex. Admin Code §108.41(2), a “Portable Dental Unit” is defined as:

“[A]ny non-facility in which dental equipment, utilized in the practice of dentistry, is transported to and utilized on a temporary basis at an out-of-office location including, but not limited to, patients’ homes, schools, nursing homes, or other institutions.”

[3] As set out under Tex. Admin Code §108.41(1), a “Mobile Dental Facility” is defined as:

“[A]ny self-contained facility in which dentistry will be practiced which may be moved, towed, or transported from one location to another.”

[4] 22 Tex. Admin Code §108.40(a).

[5] 22 Tex. Admin Code §108.40(b)(1)-(6).

[6] A copy of the Texas Dental Practice Act can be found at:

[7] This point was most recently reiterated in the SBDE’s Self-Evaluation Report from September 2015State Board of Dental Examiners, Self-Evaluation Report, Sept. 2015.

[8] February 16, 2001 issue of the Texas Register (26 Tex. Reg. 1498),

[9] 22 Tex. Admin. Code §§108.40 – 108.43.

[10]  22 Tex. Admin. Code § 108.42.

[11]  22 Tex. Admin. Code § 108.43.

[12] 22 Tex. Admin Code §108.40(b).

UPIC Dental Audits (Such as Qlarant Dental Audits) Have Been Initiated. Is Your Practice Ready for its Medicare Dental Claims or Medicaid Dental Claims to be Audited?

UPIC Dental Audits Such as Qlarant Dental Audits are Currently Taking Place

(July 3, 2018):  While a number of Medicare Advantage Plans now offer supplemental coverage for preventive, basic, and major dental services, only a narrow category of dental services qualify for coverage and payment under standard Medicare Part A (pursuant to Section 1862(a)(12) of the Social Security Act).  Presently, only qualifying Medicaid beneficiaries are likely to have dental services coverage.  With this in mind, last week’s Press Release by the Centers for Medicare and Medicaid Services (CMS) is especially pertinent.  As CMS announced, the agency is implementing “new and enhanced initiatives designed to improve Medicaid program integrity through greater transparency and accountability, strengthened data, and innovative and robust analytic tools.”  What does this mean for dentists and dental practices participating in the Medicaid program? Simply put, it means more dental audits and a much closer scrutiny of your assessment of medical necessity, documentation of the dental services provided, utilization practices and any business arrangements in which you participate.  This will become especially apparent as Unified Program Integrity Contractors (UPICs) transition into their new roles as program integrity contractors of both Medicare and Medicaid claims.  Over the last few months, we have noted that dentists and dental practices around the country are increasingly being targeted by UPICs in connection with government-paid claims. This article examines the history and direction of the CMS’s Fraud Prevention efforts and provides a thorough discussion of UPICs, highlighting their purpose, jurisdiction, and functions.

I.  What is a UPIC?

Although UPICs are free to audit both Medicare and Medicaid dental claims in their jurisdiction, this article is primarily focused on the UPIC’s targeting of Medicaid dental claims.  As set out in Section 1.2 of the CMS Medicaid Program Integrity Manual:

Unified Program Integrity Contractors (UPICs) are contracted entities with CMS that conduct investigations and audits related to activities in an effort to reduce fraud, waste, and abuse in both the Medicare and Medicaid programs. The UPICs operate in geographic areas or “jurisdictions” defined by individual Task Orders.  The UPICs Perform numerous functions to detect, prevent, and deter specific risks and broader vulnerabilities to the integrity of the Medicare and Medicaid programs including, but not limited to:

  • Proactively identify incidents of potential fraud, waste, and abuse that exist within its service area and take appropriate action on each case;
  • Investigate allegations of fraud made by beneficiaries, providers/suppliers, CMS, Health & Human Services Office of Inspector General (OIG), and other sources;
  • Explore all available sources of fraud leads, including the state Medicaid agency (SMA) and the Medicaid Fraud Control Unit (MFCU);
  • Refer and/or recommend appropriate Medicaid administrative actions to state Medicaid agencies where there is reliable evidence of fraud, including, but not limited to, overpayments, payment suspensions and terminations;
  • Refer cases to the OIG/Office of Investigations (OI) for consideration of civil and criminal prosecution and/or application of administrative sanctions;
  • Partner with state Medicaid Program Integrity Units to perform the above activities for the Medi-Medi program and Medicaid-only investigations; and
  • Work closely with CMS on joint projects, investigations and other proactive, anti-fraud activities. The UPICs utilize a variety of techniques to address any potentially fraudulent, wasteful, or abusive billing practices based on the various leads they receive. The UPICs Integrate the program integrity functions for audits and investigations across Medicare and Medicaid, and assure that CMS’s National priorities for both Medicare and Medicaid are executed and supported at the state level or within the UPIC jurisdiction.”  (emphasis added).

II.  Purpose of the UPIC Program:

The purpose of the UPIC program has been to consolidate the work currently being performed by various Medicare and Medicaid program integrity contractors under a single private sector contractor.  Each UPIC is responsible for handling federal level program integrity audits for both Medicare and Medicaid within a defined geographic area (typically comprised of multiple states).  The following private sector contractors have been awarded UPIC contracts:

  • Qlarant (Previously known as “Health Integrity, LLC”) (Western Jurisdiction)
  • AdvanceMed Corporation (Midwestern Jurisdiction)
  • IntegriGuard, LLC, dba HMS Federal (Indefinite Delivery, Indefinite Quantity[1])
  • Noridian Healthcare Solutions, LLC (Indefinite Delivery, Indefinite Quantity)
  • Safeguard Services LLC (North Eastern Jurisdiction)
  • StrategicHealthSolutions, LLC (Indefinite Delivery, Indefinite Quantity)
  • TriCenturion, Inc. (Indefinite Delivery, Indefinite Quantity)

Recognize a few familiar names?  You should.  Virtually all of these private sector companies have previously been awarded one or more prior CMS audit contracts.  In any event, it has taken a while for CMS to wind-down existing program integrity contracts with Zone Program Integrity Contractors (ZPICs), responsible for auditing Medicare claims and Medicaid Integrity Contracts (MICs), responsible for auditing Medicaid claims.  Those efforts are still ongoing in several areas of the country. 

III.  UPIC Dental Audits:

A number of dentists and dental practices around the country are currently receiving audit letters from Qlarant[2], the UPIC responsible for conducting both Medicare and Medicaid program integrity audits in the Western Jurisdiction.  While dental audits are nothing new, the initiation of UPIC audits of Medicaid, and in some cases, Medicare dental audits, has significantly raised the level of risk faced by participating dental providers.  Like their ZPIC predecessors, UPICs are actively looking for evidence of fraud and will not hesitate to make a referral to federal and / or state prosecutors if potentially criminal conduct is identified.[3]

Over the last few months, a number of Medicaid dental providers have called our office and asked, “Why on earth is my dental practice being targeted by a UPIC.” Simply speaking, as occurrences of dental claims fraud and improper billing practices have increased over the course of the last few years, so has the likelihood of potential dental claims audits. CMS’s reasoning becomes more apparent when you consider the fact that Medicaid spending has increased from $456 billion in 2013 to an estimated $576 billion in 2016.  In consideration of these factors, CMS has determined that there are significant Medicaid dental program integrity risks that must be addressed.  Not surprisingly, UPICs such as Qlarant are now actively auditing Medicaid dental claims.  When auditing Medicaid dental claims, UPIC auditors will undoubtedly address the following factors:

  • Whether the Medicaid dental services billed were actually rendered;[4]
  • Whether the Medicaid dental services rendered were medically necessary;[5]
  • Assuming that the Medicaid dental services were, in fact, medically necessary, do they qualify for coverage under the payor’s contract?[6]
  • Whether the documentation maintained meets applicable State Dental Practice Act requirements AND any required documentation requirements mandated under your State Medicaid Provider Agreement, AND (if applicable to a particular claim), any other requirements that may be set out under your contract with a Medicaid Advantage Plan.[7]
  • Whether one or more other statutes (such as the Anti-Kickback Statute) were violated which effectively renders one or more Medicaid dental claims non-payable;[8]
  • Whether the dental services rendered were properly coded[9]; and
  • Whether the dental services rendered were properly billed.[10]

IV.  What you can Expect in UPIC Dental Audit of Your Medicare Dental Services or Medicaid Dental Services?

Although UPIC dental claims audits can be generated in a wide variety of ways, most are the result of claims data mining assessments, complaints by patients (or in some cases, competitors), or referrals from another government contractor.[12]  Through data mining, UPIC auditors 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 dental claims billing patterns to those of other dental providers.  If any of your billing practices or patterns appear to be irregular, they will initiate an audit of your dental claims.  Regardless of the reason your dental claims have been targeted, if a UPIC initiates an audit of your dental practice you can expect several things. For instance, if your Medicare / Medicaid dental claims are audited by Qlarant or another UPIC, you will likely be asked to provide the following documentation for each date of service under review:

  • Hospital history and physical;
  • Hospital records;
  • Medical diagnosis;
  • Medical imaging, laboratory studies, radiology studies;
  • Dental exam with dental chart;
  • Health history
  • Referrals
  • Consultations
  • Consents for treatment and anesthesia
  • Proposed treatment plan or plan of care
  • Complete dental record and treatment plan including ADA CPT procedure codes, tooth number and surface for each tooth that received treatment
  • Pre-operative exam notes
  • Dental imaging, radiology, panoramic x-rays (pre and post procedure)
  • Comorbidities
  • Progress notes
  • Operative/procedure notes
  • Anesthesia record
  • Post-operative status
  • Complications
  • Post-operative call record
  • Medications and/or anesthesia administered
  • Medications ordered
  • Discharge instructions
  • Follow up appointments
  • Dental claim form
  • Appointment history report
  • Itemized ledger report
  • Statement of billing
  • Remittance advice
  • Any other documentation to support the billed claim

You may also be subjected to an “unannounced visit” by a UPIC auditor.  These unexpected face-to-face visits have become quite common.  If this occurs, the UPIC auditor will typically provide you with a list of claims to be reviewed but will also want to obtain a sample of the associated medical records before they leave the practice.  As part of the site visit, the UPIC auditor may also request to interview your personnel.  This is where it can get quite complicated.  As a participating provider, you have an affirmative obligation to cooperate with the UPIC’s requests.  Unfortunately, the interview of you and your staff could possibly lead to admissions against interest.  Call your attorney if a UPIC pays an unexpected visit your practice.  We can usually negotiate a time with the auditor so that you (and members of your staff) can be represented by legal counsel.

Often, your first notice of an audit will be the receipt of a letter outlining a UPIC’s dental records request. As a participating provider in the Medicare and / or Medicaid programs, you are required to furnish and submit sufficient information to justify payment as a basic condition of our participation.  UPIC audit letter typically require that you submit the appropriate records and information within 30 calendars days (from your date of receipt of the UPIC’s letter).  Should you fail to comply with a request for dental records, the UPIC may:

  • Issue a determination that an overpayment has been made.
  • Allege that the claims request was a Statistically Valid Random Sample (this depends on the size and nature of the initial claims audit). If eligible, the UPIC may then project your error rate to the universe of claims processed during the particular time frame of your audit.
  • Request that CMS suspend your Medicaid payments.
  • Recommend to the HHS, Office of the Inspector General (OIG) that you and / or your dental practice be excluded from participation in federal and state health benefit programs (including, but not limited to Medicaid) in accordance with § 1128(b)(11) of the Social Security Act.

 V.  UPIC Dental Audits – Worst Case Scenario:

It is important to keep in mind that UPICs view themselves as an arm of law enforcement. Whether you agree with the UPIC’s view of their role or not, the fact remains that UPICs are always on the lookout for evidence of wrongdoing, improper conduct or fraudulent acts that go beyond what is typically associated with a mere overpayment. When potentially-fraudulent conduct is identified, referrals to federal or state law enforcement and / or licensure agencies may be made.  In addition to facing administrative sanctions such as revocation, suspension and / or exclusion, these referrals may also lead to one or more of the following actions:

  • Revocation of a dentist’s DEA permit.
  • Referral to the State Dental Board for investigation and possible disciplinary action.
  • The assessment of Civil Monetary Penalties (CMPs) by OIG.
  • Referral to the U.S. Department of Justice (DOJ) for possible civil prosecution of False Claims Act violations.
  • Referral to the DOJ for criminal prosecution. These cases have typically involved violations of the Anti-Kickback Statute, Health Care Fraud and / or other criminal laws.  Examples of conduct that has led to criminal prosecution include billing Medicaid for unnecessary procedures and / or billing Medicaid for procedures that were never performed.
    • In one case, a single dentist and his former employer were unable to produce medical records to support 335 claims totaling $26,657 that were sampled at his practice.
    • In another case, a dentist was audited because it was virtually impossible for him to complete all of the services he billed for in a single day. When asked about the billings, he reportedly stated that he could complete a filling procedure in 30 seconds.  As you can imagine, the government didn’t believe the dentist.
    • One government audit found that 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.
  • Billing Medicaid for substandard work.
  • Submitting claims for reimbursement under another dentist’s Medicaid provider number.
  • 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.

VI.  Preparing for a Dental Claims Audit:

Dental providers must realize that they are responsible for any and all claims submitted by their practice, whether or not they even have direct knowledge of the claim.  You are liable for all of the information recorded on the Dental Claim Form.

  • Do you have an effective Compliance Program in place? It is required under the Affordable Care Act.  Moreover, most state Medicaid programs require that a such a plan be in place.  Finally, all Medicaid Advantage plans require that participating dental providers have a Compliance Program.
  • Have you and your staff reviewed necessary information regarding specific codes for billing Medicaid dental claims? Have you paid special attention to federal / state regulatory requirements, State Dental Practice obligations, and your contractual mandates?
  • 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?
  • 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?
  • 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?

Being able to answer these questions can significantly reduce your exposure to outside audits and can help you in setting up (if you have not already done so), and maintaining an effective Compliance Program. It is our recommendation that you engage a suitable, qualified entity to help you. In this regard, Liles Parker can provide you with the advice and counsel you need. 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 faces a UPIC audit in the future.

Robert Liles Healthcare AttorneyRobert W. Liles, J.D., M.B.A., M.S., serves as Managing Partner at the law firm Liles Parker, Attorneys & Counselors at Law.  Liles Parker attorneys represent dentists and dental practices around the country in connection with Medicaid claims audits and audits by private payors.  For a free initial consultation, give us a call at: 1 (800) 475-1906.

[1] What does it mean if a contractor has been awarded a UPIC contract but it is designated as “Indefinite Delivery, Indefinite Quantity?”  This is a term that is used by the General Services Administration (GSA) when the agency is not yet in a position to determine, above a specified minimum, the precise quantities of supplies or services that the government will require during a contract period. Essentially, it means that the ZPIC contracts in the remaining jurisdictions remain in place and are winding down.  As those contracts terminate, the new UPIC contracts will be implemented.

[2] Qlarant was formally known as “Health Integrity, LLC” when it operated as a ZPIC for Zone 4.

[3] In contrast to their ZPIC predecessors (which are only responsible for auditing Medicare claims), UPICs are responsible for conducting program integrity audits of both Medicare AND Medicaid claims.

[4] For example, in 2017, the U.S. Attorney’s Office for the District of Nebraska unsealed an Indictment against a Nebraska-licensed dentist alleging that the dentist submitted approximately 129 claims to the Nebraska Medicaid program for dental services that the government alleges were never performed.  The defendant dentist has been charged with violations of Health Care Fraud, 18 U.S.C. §1347.

[5] In its earlier incarnation as a ZPIC, it was our experience that Health Integrity auditors sometimes conflated “medical necessity” with “coverage.”  This often resulted in audit findings proclaiming that one or more services rendered were allegedly not medically necessary, when in fact the services were medically necessary, they just didn’t qualify for coverage under the payor’s contract.

[6] See Footnote #5.

[7] In our review of dental claims, the lack of adequate documentation has been identified as the primary reason cited by auditors when denying payment.  Dentists and dental professionals MUST review federal and state regulatory requirements, along with applicable contractual obligations to ensure that their documentation practices are fully compliant with coverage and payment rules.

[8] For example, in November 2017, the U.S. Attorney’s Office for the Southern District of New York unsealed a Complaint against a New York licensed dentist and a non-licensed individual performing unauthorized dental services.  As the Complaint reflects, some of the Medicaid claims billed were associated with patients who had been recruited to the dental practice and paid kickbacks of $25 to undergo minimal dental procedures.

[9] Improper coding practices can take a wide variety of forms.  While “upcoding” and “billing for services not rendered” are perhaps the most common violations cited by dental claims auditors.  We have also seen instances where dentists or dental practices have rendered non-covered services but have miscoded the services so that they would qualify for coverage and payment.

[10] While every dental practice is different, a common billing error that we have identified in our compliance reviews has been that dental practices often fail to credential new dentists with one or more payors in a timely fashion.  Instead, the practices improperly bills for the dental services rendered by a non-credentialed provider under the number of a credentialed provider.  We have found this problem when auditing both Medicaid and private payor dental claims.  This improper practice can lead to the repayment of overpayments, referral to one’s State Dental Board, liability under the civil False Claims Act, and, in more serious cases, in criminal prosecution.


[12] For a more detailed discussion of how UPIC audits are generated, please see: Medicare Program Integrity Manual, Chapter 2, §2.3.  The sources utilized by UPICs are the same as those relied on by ZPICs.

Dental Claims Audits are on the Rise

December 18, 2017 by  
Filed under Dental Audits & Compliance

Dental Claims Audits

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 Audits – 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 Healthcare LawyerRobert 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

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

November 30, 2017 by  
Filed under Dental Audits & Compliance

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 IV Sedation Services

(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.

IV sedationRobert 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 Audits are Ongoing Around the Country. Are You Prepared?

Delta Dental Audits are Ongoing 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.  Delta Dental audits are increasing in frequency and are focusing on dental practices around the country.

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 Are Delta Dental Audits Generated?

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 Delta Dental 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 Overpayment Resulting from a Delta Dental 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 represents dentists and dental practices in connection with Delta Dental audits.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.



Medicaid Dentist Eligibility Audits are Ongoing Around the Country

Medicaid dentist eligibility(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.  As the number of Medicaid dental audits continues to rise, it is essential that your dental practice take a number of steps to better ensure that your dentists and allied dental professionals meet a number of 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 Exclusion / OIG Screening 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.

Medicaid dentist eligibilityRobert 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.

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