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Delta Dental Audits are Ongoing Around the Country. Are You Prepared?

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

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

I. How Are Delta Dental Audits Generated?

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

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

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

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

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

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

  • Routine failure to collect the patient’s full payment or share of cost without notifying the carrier. Is your dental practice consistently collecting co-payments and deductibles that may be owed by a covered beneficiary?  In the case of non-government administered plan, the unsupported waiver of these amounts may constitute a breach of contract (In the case of a state or federal funded plan that is administered by Delta Dental, such a failure may constitute a violation of the Anti-Kickback Statute.

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

  • Misreporting dates to circumvent calendar year maximums or time limitations. The misreporting of dates in an effort to evade calendar year maximums and / or time limitations may constitute a violation of one or more state and federal fraud statutes.

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

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

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

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

III. Steps Your Dental Practice Can Take to Reduce the Likelihood of an Overpayment Resulting from a Delta Dental Audit:

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

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

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

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

 

 

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

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

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

 

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.

robert_w_lile-150x150Robert 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.