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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).

Investigations of Medicaid Dental Fraud in Texas

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

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

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

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

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

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

II.  Licensing Requirements:

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

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

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

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

IV. Recent Example of Medicaid Dental Fraud in Texas:

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

V.  Final Remarks:

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

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

Dentist Indicted on Nearly 200 Counts of New Hampshire Medicaid Dental Fraud

New Hampshore Medicaid officials are investigating dental fraud.

(January 3, 2014):  A 57-year-old Queen City, New Hampshire dentist has recently been charged with 189 counts of Medicaid dental fraud. As a result, he could face many years in prison. The New Hampshire Medicaid program is a joint federal and state-funded health care program that serves individuals and families in that state who meet certain eligibility requirements.  It is run by the State’s Department of Health and Human Services (DHHS) and reimburses providers who deliver health care services for numerous covered medical services. Under a program called “New Hampshire Smiles,” the New Hampshire Medicaid program offers comprehensive dental treatment to eligible children. Adults enrolled in Medicaid may also receive emergency dental treatments. To receive payment for dental services rendered, an individual or group must be enrolled with New Hampshire Medicaid as a dental billing provider. Dental services must be performed by a dentist, or under the supervision of a dentist, who is enrolled as an individual provider and is currently licensed by the state. The dentist must, if required, request and obtain service authorization from Xerox, the DHHS’s fiscal agent.  Importantly, providers must agree to bill for procedure(s) using Code on Dental Procedures and Nomenclature (CDT) codes that most accurately describe the services provided.

I.  Allegations of State Medicaid Dental Fraud are Increasing Around the Country:

Unfortunately, states across the country are seeing an increase in instances of dentists abusing the system. One of the most common instances of Medicaid dental fraud is billing for services not performed. Under this scheme, a dentist will bill Medicaid for a treatment, procedure, or service that was not actually performed. For example, a dentist may bill the program for a dental filling that never was rendered.

Dentists may also try to “double bill” Medicaid.  Here, the provider attempted to bill both Medicaid and either a private insurance company or the patient himself, for the same treatment. Dentists may also attempt to get for services provided to a patient that have already been rendered.

Another fraudulent arrangement is billing for medically “unnecessary services.”  A dentist may attempt to misrepresent a diagnosis and accompanying symptoms on a patient’s dental record, and then bill Medicaid to obtain payment for unnecessary lab exams.

Other common Medicaid dental fraud schemes include obtaining kickbacks for services, misrepresenting cost reports, upcoding CDT codes, and unbundling.

To combat Medicaid dental fraud, the federal and state governments have joined in State Medicaid Fraud Control Units (MFCUs).  In 2012, the combined task forces received a total of $217.3 million in funds. Collectively, in FY 2012, the MFCUs conducted 15,531 investigations, of which 11,660 were related to Medicaid fraud. These investigations resulted in 1,359 individuals being indicted or criminally charged. Nearly 1,000 of these indictments were for fraud, with a conviction rate was nearly perfect: 982.

III.  Dentist Defrauds the New Hampshire Medicaid System and Falsifies Evidence:

In this recent New Hampshire Medicaid case, the dentist is alleged to have made false claims to the New Hampshire Medicaid program for services performed over the past five years. These procedures included oral exams, X-rays, tooth extractions and orthopedic treatment. The indictments contend that the provider’s claims were either not medically necessary based on member treatment records or had already been paid for through the program (double billing). Each charge in the indictment carries a possible 3½ to 7-year prison sentence.

The defendant dentist has been practicing since he received his dental license in 1985. According to his attorney, none of the charges against the dentist have anything to do with the level of care provided on behalf of his patients. Since the indictment was only recently released, the attorney could not specify the exact details that the State’s attorney general’s office was basing its accusations on.  However, he did note that Medicaid regulations are extremely complicated and change regularly.  He contends that the whole issue could simply come down to a basic misunderstanding.

IV.  Closing Thoughts:

It is essential that dentists participating in any state Medicaid dental program review both their operational and documentation practices to ensure that entities processing and examining their patient treatment records can readily ascertain why certain care and treatment decisions were made. Moreover, dentists must ensure that the services billed to the Medicaid program are not just medically reasonable and necessary, but that they also qualify for coverage and payment.

By participating in your state’s Medicaid program, dentists must recognize that your practice and documentation procedures must be scrutinized with a fine toothed comb.  Many Medicaid dentists have yet to implement an effective Compliance Plan within their practice. While it is not too late, dental practices without an operative compliance program will see an increase in audits by Medicaid contractors and face greater targeting by MFCUs.  Federal and state enforcement investigations of possible incidents of dental fraud will continue to increase in the coming years.  Therefore, it is imperative that all dental practices (especially those participating in Medicaid), carefully examine its documentation practices. Dentists must ask themselves,

Is the medical necessity of each dental service fully reflected in the patient’s medical record?

Have each of the care and treatment services provided been documented in the patient’s medical record?

Do the dental services meet the state Medicaid’s regulatory requirements for coverage and payment?

Have the dental services been properly coded?

Have the dental services been properly billed?

Can you answer positively to each of these questions? If not, you and your practice may be in trouble.  Need help drafting a Compliance Plan for your practice? We would be more than happy to assist you. Call us to discuss how we can help you with your compliance efforts.

Healthcare LawyerRobert W. Liles, Esq., serves as Managing Partner at Liles Parker, Attorneys & Counselors at Law.   Liles Parker attorneys represent dentists and other health care providers around the country in licensure disputes, audits by government agencies and in contract disputes with private payors.  For a free consultation, call: 1 (800) 475-1906.

Dentist Alleged to Have “Systematically Bilked” MassHealth Dental Fraud Scheme

December 19, 2013 by  
Filed under Dental Audits & Compliance

MassHealth Dental Fraud(December 23, 2013):  A recent state audit of a Massachusetts dentist has reportedly uncovered numerous instances of MassHealth dental fraud, alleging that dentist fraudulently billed the state’s “MassHealth Insurance Program.”  According to the state’s auditor, the dentist “systematically bilked the MassHealth Dental Program.”  In all, the audit claims to have found over $150,000 in improper MassHealth dental fraud claims.


I.  MassHealth Dental Program – Overview of Coverage and Benefits:

The MassHealth Dental Program  provides dental benefits for MassHealth beneficiaries.  Younger members (those under the age of 21), receive a larger share of dental benefits than adults (those who are 21 or older).  The MassHealth Dental Program provides a broad scope of services to eligible state citizens.  While many states limit eligibility to children, the MassHealth Dental Program also provides dental benefits to eligible adults.  These dental services include diagnostic and preventive services (such as checkups, cleanings, and x-rays), extractions, emergency treatment, and composite fillings for the 12 front teeth. Coverage of all fillings for adults begins in 2014.

The MassHealth Dental Program does not cover a number of complex, often expensive, dental services sometimes needed by eligible adult beneficiaries.  Examples of non-covered services include crowns, root canals, dentures, and other restorative services that may be needed by eligible adults. In contrast, restorative services (such as fillings), braces, root canals and a variety of other dental service benefits are typically covered for eligible beneficiaries who are under age 21.  The MassHealth Dental Program is managed by Dental Services of Massachusetts and its subcontractor, DentaQuest LLC.

II. MassHealth Dental Fraud Audit Findings:

Massachusetts’ Office of the State Auditor has been tasked with conducting audits of the MassHealth Dental Program.  When earlier audits found that the existing claims processing system did not have adequate controls to identify and reject improper dental claims, MassHealth implemented a number of corrective measures to help prevent dental fraud from occurring.

A recent audit was conducted of the Medicaid dental services submitted for payment of one Massachusetts dentist. The audit included a partial review of MassHealth payment information and the files of MassHealth members seen by the Massachusetts dentist between 2008 and 2011.  The audit found repeat patterns of the dentist obtaining payment for dental procedures that were not allowed by MassHealth regulations.  Specifically, the audit found that:

1,429 unallowable detailed oral screenings, intended for patients receiving radiation therapy, chemotherapy or organ transplants. However, the dental patients for which the provider submitted claims were not undergoing any of these procedures;

865 claims for dental services including X-rays, fillings, and denture repairs that were not documented in beneficiary files;

259 oral evaluations in excess of MassHealth limits;

176 claims for “dental enhancement fees,” which are payments meant for more general health centers to improve their dental services;

13 cases of the dentist circumventing MassHealth limits on denture replacements by instead replacing every tooth in the denture individually;

98 tooth restorations in excess of state limits.

The audit also identified 95 claims for medically excessive fluoride treatments. For example, the dentist is alleged to have billed 53 fluoride treatments over 12-month period for a single child-aged member. However, guidelines set forth by the American Academy of Pediatric Dentistry holds that a dentist should provide no more than four fluoride treatments in a year.

The auditors ultimately concluded that the dentist engaged in MassHealth dental fraud.  Describing the identified conduct as “pervasive fraud,” the auditors calculated that approximately $154,019 in fraudulent billings had been improperly submitted for payment to the state.  During the four year audit period, it was estimated that MassHealth paid the dentist nearly $1 million for more than 10,000 claims of service.  As a result of this internal review, MassHealth has reportedly terminated the dentist’s status as a participating provider in the MassHealth Dental Program.

III.  Patient Complaints Lead to Dentist’s Suspension:

This recent audit isn’t the only problem facing this dentist. In a separate matter unrelated to the audit, the Massachusetts Board of Registration in Dentistry is reported to have suspended the dentist’s license to practice for a year.  The Board made this move after it received complaints from patients related to their dental treatments.

IV.  Final Remarks:

Now, more than ever, it is essential that dentists participating in any state Medicaid dental programs review both their operational and documentation practices to ensure that entities processing and examining their patient treatment records can readily ascertain why certain care and treatment decisions were made and that the services billed to the Medicaid program were not merely medically reasonable and necessary, but also that they qualify for coverage and payment.

What should you take away from this case?  Dentists participating in their state’s Medicaid program should review their practices and documentation with a critical eye.  It is important that Medicaid dentists recognize that they are behind the proverbial curve when it comes to compliance.  Unlike their physician counterparts, very few dentists have historically been targeted by law enforcement, regulatory auditors or private payor investigative units.  As a result, only a small percentage of dental practices have implemented a Compliance Plan.  Where compliance efforts have been initiated, they are often limited to preventative measures aimed at guarding against a HIPAA privacy breach and/or an OSHA violation.  Frankly, these measure aren’t nearly enough to keep a practice out of trouble.  The government’s previous lack of enforcement may provide dentists with a sense of cold comfort that is both misleading and undeserved.  Federal and state enforcement investigations of possible incidents of dental fraud have steadily increased in recent years.  Moreover, there is every indication that these efforts will continue to rise.

Are your Medicaid dental services fully compliant with all applicable state Medicaid requirements? Assuming that they are, it is still imperative that you keep in mind that an otherwise “perfect”  Medicaid dental services claim may still fall short if it is somehow “tainted” because of a violation of the federal or state Anti-Kickback Statute violation.  The claim is therefore non-payable.

While there is no sure-fire way to avoid being audited, there are concrete steps you can take in your dental practice today to reduce the risk that a federal or state audit of your Medicaid dental claims will find that you have been wrongfully overpaid for the Medicaid services you and your staff have been providing (and are continuing to provide).  Call us to discuss how we can assist you with your compliance efforts.

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


Hospital Outpatient Dental Services are Being Audited

December 4, 2013 by  
Filed under Dental Audits & Compliance

Hospital Outpatient Dental Services Billed to Medicare are Being Audited.(December 4, 2013): Generally, Medicare does not cover hospital outpatient dental services. Under the general exclusion provisions of the Social Security Act, items and services in connection with the care, treatment, filling, removal, or replacement of teeth or structures directly supporting the teeth (e.g., preparation of the mouth for dentures or removal of diseased teeth in an infected jaw) are not covered.  It is important to keep in mind that the issue of whether a specific dental service is “covered” by Medicare is not determined by the value of the needed procedure or by whether the service is medically necessary.  Rather, it is determined by the type of dental service to be provided and the anatomical structure on which the procedure is performed.

I.  Are any Dental Services Covered Under Medicare?

The short answer is “Yes.”   There are a handful of dental services that Medicare will cover.  Examples of these limited exceptions include:

  • Dental services that are an integral part either of a covered procedure (e.g., reconstruction of the jaw following accidental injury).
  • Extractions done in preparation for radiation treatment for neoplastic diseases involving the jaw.
  • Payments for oral examinations, but not treatments, preceding kidney transplantation or heart valve replacement (under certain circumstances). These oral examinations would be covered under Part A if they are performed by a dentist on a hospital’s staff or under Part B if they are performed by a physician.

While a small group of dental services do, in fact, qualify for coverage and payment under Medicare, it would be prudent for any health care provider billing the government for such services to carefully review the nature of each claim and ensure that the supporting documentation fully supports the claims prior to submitting them to the government for payment.  Providers should expect for these claims to be carefully scrutinized prior to being paid.

II.  One Recent Audit of Hospital Outpatient Dental Services:  

The Department of Health and Human Services, Office of Inspector General (OIG) recently audited a large Texas hospital with respect to Medicare reimbursement claimed by the hospital for hospital outpatient dental services. The OIG looked at a sample of one hundred claims and found that the hospital properly claimed Medicare reimbursement for only one (1) claim. The remaining ninety-nine (99) claims did not meet Medicare’s coverage and payment  requirements.

The OIG believes that these errors occurred, at least in part, due to the fact that the hospital did not have written policies and procedures in place during the audit period related to the billing of Medicare for hospital outpatient dental services. Additionally, the hospital did not have system billing edits in place to ensure that it billed only for services that met Medicare requirements.

In this particular case, it was alleged that the hospital billed Medicare for tooth extractions that were typically performed as a result of tooth decay, which is not a covered service. In addition, the hospital billed Medicare for unallowable partial or full mouth x-rays of the teeth. In most cases, the hospital performed the x-rays during a general dental examination and evaluation, which also are excluded from Medicare coverage.  These unallowable extractions and x-rays accounted for the majority of all unallowable claims. Other types of unallowable dental services varied and included, for example, the repair of a tooth socket in preparation for dentures.

III.  Final Considerations:

Providers of medical (as opposed to dental) services have been under the proverbial microscope for many years. Their claims are routinely scrutinized by both governmental and private payors before payment is authorized. Dental service providers can take advantage of the many hard (and often painful) lessons already learned by their medical counterparts.  Now, more than ever, it is essential that dentists, orthodontists, and other dental service providers take the time to know what is expected of them.  Moreover, it is equally important that you fully and accurately document the dental examination you have conducted, any findings that you have reached and any dental services that you ultimately provided.  Points to be considered include:

  • Generally, “medical necessity” is the threshold standard used by Medicaid (and Medicare for that matter) to decide whether a specific dental service will be covered.  While the specific language may vary somewhat from jurisdiction to jurisdiction, the test is typically whether a prudent dentist would provide a service or product to a patient to diagnose, prevent or treat dental pain, infection, disease, dysfunction, or disfiguration in accordance with generally accepted procedures of the professional dental community.
  •  Have you researched the “medical necessity” standard for your state?  Are you complying with those requirements?
  •  Several years from now, would a disinterested third-party who is asked to review your patient’s medical records find that medical necessity is supported solely through a read of the cold record?
  • Are your medical records legible, properly dated and structured in an easy-to-understand   fashion?
  • Is your documentation of the examination conducted, the findings reached and the corrective actions taken complete and accurate? 

Should you not consider or fail to meet one or more of the above requirements, there is a significant likelihood that you will face significant liability, including, but not limited to an overpayment assessment, suspension, being placed on “payment hold,” or referred to your law enforcement for possible investigation and prosecution. Compliance is not optional.  Research each payor’s requirements and do your best to meet those contractual mandates.

Healthcare LawyerRobert W. Liles serves as Managing Partner at the boutique health law firm of Liles Parker.  The firm has offices in Washington DC, Houston TX, McAllen TX and Baton Rouge LA.  Liles Parker attorneys represent dentists and other health care providers around the country in State Dental Board proceedings, Medicaid Audits and in Private Payor Audits.  Liles Parker also advises dental practices on documentation, compliance, OSHA and HIPAA issues.  For a free consultation, call:  1 (800) 475-1906. 

Is Your Dental Practice Prepared to Undergo a Medicaid Dental Audit?

November 25, 2013 by  
Filed under Dental Audits & Compliance

Your chances of undergoing a Medicaid dental audit are increasing.

Is Your Practice Ready for a Medicaid Dental Audit?

(November 25, 2013):  The link between oral health and overall health has been increasingly acknowledged over the years. Emphasis has been placed on children’s oral health in particular. In fact, the Children’s Health Insurance Program Re-authorization Act of 2009 (CHIPRA) mandates that “child health assistance provided to a targeted low-income child shall include coverage of dental services necessary to prevent disease and promote oral health, restore oral structures to health and function, and treat emergency conditions.”[1] The importance of good oral hygiene habits and preventive dental care cannot be overstated; yet, the federal government has not mandated even minimal dental benefits for low-income adult Americans through Medicaid. While dental coverage for low-income children is rather expansive, it is entirely up to states as to whether dental is covered for low-income adults at all. In any event, the likelihood that you will be subjected to a Medicaid dental audit by federal and / or state authorities has been increasing each year.  In this article, we discuss the current enforcement environment, along with steps you can take to reduce your dental practice’s level of risk.

I.  State Medicaid Dental Care Differs from Jurisdiction to Jurisdiction:

The range of approaches by states to low-income adult dental coverage is vast, including from no coverage to coverage of all service categories. Some states are expanding their coverage of low-income adult dental care to both reflect the increasingly recognized importance of quality dental care and the increasing costs of dental care. For example, Indiana raised its cap on adult dental services from $600 per calendar year to $1,000 per calendar year in 2011.[2] Of course, the nation’s fiscal crisis has also pushed states in the other direction, forcing states like Pennsylvania, Massachusetts, Illinois, California and Washington to cut “discretionary costs” from their Medicaid budgets, which has included dental coverage.[3]

II.  The Likelihood of Your Practice Being Subjected to a Medicaid Dental Audit:

Not surprisingly, the increased recognition of the importance of preventive and quality dental care has also led to the increased scrutiny of dental services paid for by federal-state health benefit programs. The criminal conviction of a Virginia dentist in 2008 on felony charges of racketeering, health care fraud, and structuring a financial transaction sent vibrations throughout the dental world. The Virginia dentist was a long time provider of dental services in his community (the poorest area of his state, in fact), having begun his practice in 1981. By 2008, his payor mix was 50-50 Medicaid-private pay.

An “anonymous” complaint triggered the investigation of his practice which led to his conviction, though he had also been audited by Medicaid several times prior to that. Nobody disputes that there were some mistakes in his practice’s documentation and record keeping, including the Virginia dentist himself.  Yet, as he stated in an interview:

“the government’s position was that these errors were not mistakes, but the errant claims were submitted to be paid for more than I was entitled.”

Both prior to serving his sentence and after his release, the Virginia dentist shared his story time and time again, stressing to his peers the importance of comprehensive documentation. As he stated in that same interview:

“If I can prevent this situation from happening to anyone else, airing my “dirty laundry” will have been worth the embarrassment. […] If you become a Medicaid provider, be very, very careful! Document, document, document; review, check, and recheck. Make no mistakes!”

As predicted, we’ve seen dentists across the nation come under increased scrutiny. Medicaid Integrity Contractors (MIC) in states such as Indiana and Texas have been particularly active. The MICs are requesting samples of medical documentation from as early as 2007, and are requesting the full ambit of documentation, from charts to billings.

III.  The Medicaid Documentation Quandary:

Dentists should be aware of and expect Medicaid dental audit letters from their local MICs, which are generally followed by a site-visit. Unfortunately, the letters are broad, giving dentists no real sense of what types of services, if any, are being reviewed. The lack of focus, we believe, is indicative of the contractors’ intent to review compliance with federal and state documentation guidelines in general. Many dentists document quite minimally, indicating the tooth at issue and the service that has been deemed medically necessary, with no indication or elaboration on the basis for that determination (e.g., treatment diagnosis, x-ray findings, etc.). We encourage our dental clients to ask themselves: would a peer be able to look at my documentation and come to the same conclusion as I did as to which service(s) was medically necessary? If not, the documentation is probably not sufficient for Medicaid standards. Remember that all of the dots need to be connected for the MIC reviewer in the documentation. The MIC reviewer will not make any inferences in your favor.

IV.  How Should a Dentist Respond to Medicaid Dental Audit?

In light of the increased scrutiny of dental services, dentists should review their forms and documentation procedures and update them accordingly if deficiencies are identified. Dentists should also apprise their staff of the current activity in the Medicaid dental world and establish a plan of action for how to respond in the event that the local MIC initiates an audit of their practice.

V.  Final Remarks:

Now, more than ever, it is essential that dentists participating in the Medicaid programs review both their operational and documentation practices to ensure that a third-party examining their patient treatment records years from now can readily see why certain care and treatment decisions were made and that the services billed to the Medicaid program were medically reasonable and necessary.

Healthcare LawyerLorraine Ater, Esq. is a health law attorney with the boutique firm, Liles Parker, Attorneys & Counselors at Law.  Liles Parker has offices in Washington DC, Houston TX, McAllen TX and Baton Rouge LA.  Our attorneys represent dentists, orthodontists and other health care professionals around the country in connection with government audits of Medicaid and Medicare claims, licensure matters and transactional projects.  Need assistance?  For a free consultation, please call: 1 (800) 475-1906.



[1] Title XXI of the Social Security Act, Section 2103(c)(5).
[2] On January 1, 2011, the cap on dental services for members age 21 and older was increased to $1,000 and included all covered dental services, including all emergency dental services.
[3] A more comprehensive discussion of the Medicaid dental budget cuts reflects the challenges faced by the states.

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.

Healthcare LawyerRobert 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.


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