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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.

 

Dental Practice Audits are on the Rise — Protect your Interests!

October 11, 2016 by  
Filed under Dental Audits & Compliance

Dental practice audits are increasing around the country. Liles Parker can represent your practice!(October 11, 2016): More than 45 million children receive government-funded dental care served under Medicaid and CHIP programs. This equates to approximately 1 out every 3 children in the country.  The dental care provided includes screening services and other preventive, diagnostic, and treatment services that are medically necessary and properly documented. Under the mandatory Early and Periodic Screening, Diagnosis, and Treatment (EPSDT) benefit, children in Medicaid are entitled to dental care at as early an age as necessary, needed for relief of pain and infections, restoration of teeth and maintenance of dental health.”  In light of the growth of these programs it is little wonder that the number of dental practice audits is again on the rise.

 I. Dental Practice Audits are Increasing Each Year:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

IV. Private Payor Dental Fraud Enforcement Actions:

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

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

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

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

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

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

VI. Conclusion:

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

  • False Claims Act litigation.

  • Drafting and implementation of an effective Compliance Program.

  • Performance of a “GAP Analysis.”

  • Representation in Medicaid related audits.

  • Representation in private payor audits.

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

Robert W. Liles represents dentists in dental practice audits.Robert W. Liles, M.B.A., M.S., J.D., serves as Managing Partner at Liles Parker, Attorneys & Counselors at Law. Our attorneys represent dentists and dental practices around the country in connection with Medicaid / private payor audits and compliance matters. Our firm also represents dental providers in connection with federal and state regulatory reviews and investigations. For a free consultation, call Robert at: 1 (800) 475-1900.

[1] 42 C.F.R. § 441.56(c)(2).

Dental Claims False Claims Act Liability

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

I.  Background of the False Claims Act:

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

II.  Damages Under the False Claims Act:

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

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

III.  Recoveries Under the False Claims Act:

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

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

IV.  Statute of Limitations Under the False Claims Act:

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

A civil action under section 3730 may not be brought —

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

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

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

V.  Final Remarks:

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

Robert W. Liles represents dentists and dental practices in Medicaid audits and dental claim False Claims Act casesRobert W. Liles serves as Managing Partner at Liles Parker PLLC. Liles Parker attorneys represent dentists and other health care providers around the country in connection allegations of overpayments and violations of the False Claims Act. For a free consultation, call Robert W. Liles at: 1 (800) 475-1906.

 [1] False Claims Act Cases: Government Intervention in Qui Tam (Whistleblower) Suits, U.S. Department of Justice, available at www.justice.gov/usao/pae/Documents/fcaprocess2.pdf  (last accessed March 2015).

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

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

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

 

TSBDE Update: Texas State Board of Dental Examiners

November 11, 2013 by  
Filed under Dental Audits & Compliance

The TSBDE is investigating complaints against dentists and dental professionals. (November 11, 2013): TSBDE Update – The Texas Legislature first provided for licensure of dentists in 1897, whereby district judges were empowered to appoint a Board for their districts consisting of three practicing dentists living in the district. In 1905, Senate Bill 84 created the Texas State Board of Dental Examiners (TSBDE or Board). The Board consisted of six practicing dentists to serve the entire state. Between 1905 and the present, various amendments to the Dental Practice Act have been enacted.

Today, the Board consists of 15 members appointed by the Governor.  The stated mission of the Board is to safeguard the dental health of Texas by developing and maintain program to:

1. Ensure that only qualified persons are licensed to provide dental care; and

2. Ensure that violators of laws and rules regulating dentistry are sanctioned as appropriate.

The TSBDE is divided into five program functions/divisions: Executive; Administration; Licensing; Enforcement; and Legal. Each division is closely related to and depends on ready and efficient access to information from the others to assure that functions are carried out in a manner consistent with statutory requirements to ensure the dental health and safety of the public. Information about program services is shared among the divisions of the TSBDE.

I.  Introduction — Sanctions Imposed by the TSBDE:

The TSBDE has the authority to sanction dentists for inappropriate conduct.  Examples of such conduct include violations of the standard of care, impermissible delegation, dishonorable or unprofessional conduct and criminal offenses and the failure to use proper diligence in practice or the failure to safeguard patients against avoidable infections.

II.  Alleged Violation — Standard of Care Breaches:

Standard of care violations include:

  • Practice below minimum standard with a risk of harm.

  • Failure to advise patient before beginning treatment.

  • Failure to make, maintain and keep adequate dental records.

  • Misleading a patient as to the gravity, or lack thereof, of their dental needs.

  • Failure to maintain appropriate life support training.

  • Abandonment of patient.

  • Failure to report patient death or injury requiring hospitalization.

  • Act or omission that demonstrates level of incompetence such that the person should not practice without remediation and subsequent demonstration of competency.

  • Negligence in treatment.

  • Any intentional act or omission that risks or results in serious harm.

  • Failure to properly document compliance with health and sanitation requirements.

  • Office premises are not maintained in compliance with health and sanitation requirements.

  • Barrier techniques, disinfection, or sterilization techniques do not comply with health and sanitation requirements.

  • Failure to document controlled substance inventories or prescription records.

  • Failure to use reasonable diligence in preventing unauthorized persons from utilizing DEA or DPS permit privileges.

Other types of standard of care violations include a situation where the Licensee is negligent in performing dental services and that negligence causes injury or damage to a dental patient and when the Licensee is physically or mentally incapable of practicing in a manner that is safe for the person’s dental patients.

Another type of violation is impermissible delegation.  Impermissible delegation is when the Licensee holds a dental license and employs, permits, or has permitted a person not licensed to practice dentistry to practice dentistry in an office of the dentist that is under the dentist’s control or management.

III.  Alleged Violation — Dishonorable Conduct:

If a Licensee practices dentistry or dental hygiene in a manner that constitutes dishonorable conduct the activity will violate the Texas Code. These violations include:

  • Isolated dishonorable conduct resulting in no adverse patient effects.

  • Repeated acts of dishonorable conduct which impairs a person’s ability to treat a patient according to the standard of care.

  • Dispensing, administering, prescribing, or distributing drugs for a non-dental purpose.

  • Failure to meet duty of fair dealing in advising, treating, or billing a patient.

  • Diagnosis of dental disease, prescription of medication, or performance of impermissible acts by a dental hygienist.

  • Practicing dental hygiene without required supervision.

  • Sex or sexualized conduct with a patient.

  • Financial exploitation or dishonorable conduct resulting in a material or financial loss to a patient.

IV.  Alleged Violation — Criminal Behavior:

The TSBDE considers criminal behavior to be highly relevant to an individual’s fitness to engage in the practice of dentistry and will institute disciplinary actions for such conduct.  Relevant behavior can include:

  • Criminal offenses relating to the regulation of dentists, dental hygienists, or dental assistants committed in the practice of or connected to dentistry, dental hygiene or dental assistance.

  • Criminal offenses relating to the regulation of a plan to provide, arrange for, or reimburse any part of the cost of dental care services or the regulation of the business of insurance.

V.  Alleged Violation — Improper Drug Usage:

Furthermore, violations relating to chemical dependency or improper possession or distribution of drugs are also in the purview of the TSBDE’s sanctioning authority.  Specifically a violation will be found where the Licensee is addicted to or habitually intemperate in the use of alcoholic beverages or drugs or has improperly obtained possessed, used or distributed habit-forming drugs or narcotics.  Violations include:

  • Misuse of drugs or alcohol without patient interaction and no risk of patient harm or adverse patient effects.

  • Improperly distributing habit-forming drugs or narcotics.

  • Prescribing or dispensing a controlled substance for a non-dental purpose.

  • Prescribing or dispensing a controlled substance to a person who is not a dental patient, or to a patient without adequate diagnosis of the need for prescription.

  • Misuse of drugs or alcohol with a risk of patient harm or adverse patient effects.

  • Misuse of drugs or alcohol with a significant physical injury or death of a patient or a risk of significant physical injury or death.

VI.  Alleged Violation — Fraud or Misrepresentation:

The TSBDE considers fraud or misrepresentation a violation.  Infractions involving fraud or misrepresentation include instances where a licensee obtains a license by fraud or misrepresentation or engages in deception or misrepresentation in soliciting or obtaining patronage.  Specific violations include:

  • Failure to honestly and accurately provide information that may have affected the Board’s determination of whether to grant or renew a license.

  • Making an intentional misrepresentation of previous licensure, education, or professional character, including failure to disclose criminal convictions.

  • Engaging in false advertising.

  • Creating unjustified expectation.

  • Engaging in false, misleading or deceptive referral schemes.

  • Failing to comply with requirements relating to professional signs.

  • Failure to list at least one dentist practicing under a trade name in an advertisement.

  • Falsely advertising as a specialist in one of the ADA recognized specialties or advertising as a specialist in an area not recognized by the ADA.

VII.  Alleged Violation — Any Law Relating to the Regulation of Dentists or Dental Hygienists:

A violation of any law relating to the regulation of dentists or dental hygienists is also considered a violation of the Dental Practice Act.  This occurs when a Licensee violates or refuses to comply with a law relating to the regulation of dentists or dental hygienists.  Examples include:

  • Isolated failure to make, maintain and keep adequate dental records not resulting in patient harm.

  • Failure to notify patients that complaints concerning dental services can be directed to the Board.

  • Failure to post names of, degrees received by, and schools attended by each dentist practicing in office. Failure to properly exclude names of dentists not practicing in office.

  • Failure to place identifying mark on a removable prosthetic device.

  • Failure to notify the Board of maintenance of records agreement.

  • Failure to make, maintain and keep adequate dental records resulting in potential for patient harm.

  • Failure to obtain written, signed informed consent.

  • Failure to provide full dental records to the Board upon request.

  • Failure to maintain an appropriate permit for a mobile dental facility.

  • Perform treatment outside licensee’s scope of practice not resulting in patient harm.

  • Prescription of controlled substance while DPS or DEA permit is expired.

  • Failure to make, maintain and keep adequate dental records resulting in actual patient harm.

  • Violation of stipulation in a prior Board Order.

  • Perform treatment outside licensee’s scope of practice resulting in patient harm or potential for patient harm.

  • Prescription of controlled substance without DPS or DEA permit.

VIII.  Conclusion:

In recent years, the TSBDE has been particularly active.  As the number of complaints against dentists has increased, the number of disciplinary actions has also grown.  Notably, many of the complaints now handled by the TSBDE are collateral referrals from state and / or federal law enforcement agencies.  Are your dental practices fully compliant?  Call the health lawyers at Liles Parker for assistance in responding to a Dental Board investigation or a Medicaid or private payor audit.

Robert W. Liles defends dentists and dental professionals in TSBDE actions and dental claims audits.Robert W. Liles, J.D. serves as Managing Partner at Liles Parker, Attorneys & Counselors at Law.  Robert represents dentists and dental practices around the country in State Dental Board investigations and in Medicaid and private payor audits of dental claims / dental services.  For a free consultation, call Robert at:  1 (800) 475-1906.

 

MIC Dental Audits: Are Your Dental Practices Compliant?

(July 11, 2012): For many years, government fraud and abuse contractors have focused their efforts on primary care physicians, hospitals, DME suppliers, and other Medicare providers. During this period, these contractors, such as ZPICs and RACs, largely ignored auditing claims from dental providers. Additionally, dental audits by private payors, while they do exist, are few and far between. Unfortunately, times have changed for dentists and orthodontists. Dental audits of Medicaid claims are currently on the rise by Medicaid Integrity Contractors (MICs) and Medicaid Recovery Audit Contractors (MRACs), as well as federal and state Offices of Inspector Generals (OIG).  At this time, most of the audit activity we are seeing is being conducted by MIC program integrity contractors.  As MIC dental audits increase in your state, it becomes especially important that you understand and comply with all applicable regulatory requirements.

I.  CMS is Now Focusing Resources on MIC Dental Audits:

The Centers for Medicare & Medicaid Services (CMS) contracts with various private companies to perform dental audit functions. These companies, such as MICs or MRACs, then have financial incentives to ferret out as much fraudulent and wasteful billing as possible. Like ZPICs and RACs, MICs and MRACs are experienced, sophisticated, and aggressive when it comes to auditing Medicaid claims. With their current focus on dental audits, providers of these services should be aware of some important information about dental audits and appeals.

II. Considerations When Handling MIC Dental Audits:

If your Medicaid dental claims are under audit or investigation, it is important to know your rights and responsibilities. Above all else, keep in mind any established deadlines. While many issues can be argued on appeal, missed deadlines cannot. If you receive a request for records or a demand letter, it is important to identify the relevant time frame you are working under and make sure you respond timely. Also consider retaining an attorney who is experienced and knowledgeable in this area. Dental claims coding and billing are complex and require a high degree of precision and accuracy. You should find a representative who is not just comfortable, but fluent in Medicaid dental guidelines. Attorneys and other representatives should have staff with understanding of Medicaid billing, and keep in mind that Medicaid appeals guidelines can, and often do, vary from state to state. Because of this, make sure you retain someone with demonstrated expertise in these appeals.

III.  FInal Remarks:

Finally, as a preventative measure, make sure that your documentation practices are adequate. This means not only that your files identify all of the relevant information needed to pay a claim, but are legible, signed, and completed timely. Like deadlines, improper or missing documentation is a very difficult issue for a provider to overcome. Here, a compliance plan and gap analysis can assist to identify any areas of weakness in documentation and develop an effective corrective action plan.

Healthcare LawyerRobert W. Liles is the Managing Partner at Liles Parker PLLC, a Washington, D.C. based health law firm representing dental professionals and other health care providers around the country.  Robert represents dental providers in connection with both Medicare and Medicaid post-payment audits and appeals. In addition, Robert counsels dental clients on regulatory compliance issues, performs gap analyses and internal reviews, and trains dental professionals on various compliance and legal issues. For a free consultation, call Robert today at:  1 (800) 475-1906.