Beware: Fines Up to $10,000 for Giving Out New Patient Gifts

It is remarkable that in a state that cherishes free enterprise, it is okay for dental maintenance organizations to offer money and other inducements to encourage parents with Medicaid-eligible children to use their company yet it is a crime for Medicaid providers to approach those same parents for the same purpose.

Why?

It just doesn't make sense. Why is it good for the goose but not the gander? Oh, because big companies like Xerox are worthy of the state's trust?

If it is illegal for one, it should be for the other. Aren't DMOs spending taxpayer monies on those inducements?

Provider caught & punished

Regardless of the seeming hypocrisy, the last OIG Quarterly Report for 2021 highlighted the agency's efforts to stop this crime.

In fact, it is reported on page 5 that a dental provider was caught and punished for it.

"The OIG settled a case in September against a Richardson dental provider. The dentist billed Medicaid for services not rendered by altering treatment charts and illegally solicited Medicaid clients by using gift cards. The provider agreed to pay $4,066 in overpayment and $8,133 in penalty to resolve this case."

The report then publishes a full-page section on dental solicitation, which we republish here.

OIG expands illegal dental solicitation education effort

The Texas Health and Human Services Office of Inspector General proactively works with dental providers to prevent fraud, waste and abuse in Texas Medicaid delivery.

In its latest endeavor, the OIG is collaborating with the Texas Department of State Health Services (DSHS) to share information about illegal dental solicitation with dentists who participate in Texas Health Steps, which provides free dental and medical checkups to children with Medicaid.

The outreach effort with DSHS Regional and Local Health Operations is currently underway. OIG staff is training DSHS staff in public health regions across the state, giving them a solid understanding of illegal
dental solicitation and the OIG's role in detecting and preventing it. The OIG Communications Team produced educational material to remind Medicaid dentists and their staff of the prohibition against patient solicitation; the material outlines the prohibited behavior and the penalties involved. DSHS will share the information with providers across Texas through a variety of communication avenues.

Solicitation basics
The OIG enforces 1 Texas Administrative Code §371.1669, which prohibits a person from offering any cash, gifts or other items that may influence a potential client's selection of a Medicaid service provider.

Providers may not offer, and clients may not accept:

    • Cash, cash equivalents or gift cards in any amount.
    • Free or discounted services for a family member to influence their health care decisions.
    • Transportation, unless it's properly arranged with the client's managed care organization or the Texas Health and Human Services Commission.

The OIG may investigate providers who advertise free transportation on their website or providers who hire people to canvass neighborhoods looking for Medicaid-eligible children and pay drivers to transport children for Medicaid services. Providing goods or services of any value could be considered a violation, but that would typically not be the case for non-cash, low-cost items such as a toothbrush valued less than $10.

Solicitation penalties
If a provider solicits Medicaid clients, the provider may be found guilty of a Class A misdemeanor and a third-degree felony if the dentist was previously convicted of illegal dental solicitation or was employed
by the federal, state or local government at the time. The provider may be subject to disciplinary action by the Texas State Board of Dental Examiners, an injunction, civil penalties of up to $10,000 and possible
exclusion as a provider from the Medicaid and CHIP programs.

Learn more
The OIG created a brochure to educate providers about the signs and consequences of illegal dental solicitation in Medicaid. Providers may download it from https://tinyurl.com/OIGsolicitation and share it
with their staff.

With this being said, it should be realized again that dental providers are less likely to receive a full OIG investigation than home health agencies, attendants, hospitals, nursing facilities, and even physicians. See page 5 of the report.

So think twice about giving that kid a toothbrush!

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One Response

  • States are required to enforce a solicitation rule because the practice of enticing Medicaid patients has been prohibited by federal rule for a very long time. I tend to agree that something similar should be in place for what health plans can do when it comes to soliciting members. The feds have a rule to preserve the freedom of patients to choose their providers so the argument could be made the same should apply to the person’s choice of health plans for Medicaid coverage.

    However, I find the publication of the solicitation case in the OIG report to be, if nothing less, perplexing. Anyone who’s been in the Medicaid dental business will tell you the aggressive solicitation of Medicaid patients by dental practices has become an established way of doing business. In the Dallas-Ft. Worth area, if you are not enticing members with gift cards, bicycles, food, etc., you are losing business to the clinic next door. This has been on-going for years and good Medicaid dental providers have voiced their concerns to the OIG, TDA and others, many times.

    The OIG’s duty (to the taxpayers) is to prevent, as well as enforce fraud, waste and abuse, but if an $8,000.00 fine is the best example they have, I don’t see any of these dental providers shaking in their boots. Really? Who is soliciting? Not the mom-and-pop dental clinics, it’s the larger dental chains. They bring in millions of Medicaid payments a year (check it out in open records). Does the OIG for a second believe any unethical dental provider is going to be deterred by this story in their quarterly report? I think not. If anything, it will only serve to enable them.
    Unfortunately (or fortunately), depending who you are (provider or taxpayer), OIG has no teeth, no bark and no bite. Any good will and ability to be a deterrent was stripped from them the day Jack Stick used that office to try and create a name for himself. TDMR, the legislators, TMA, TDA, etc. will make sure the OIG never gets “too” aggressive again and thus will never be a deterrent like a watchdog is supposed to be. So now the OIG publishes reports with minor success stories and bakes in overpayment numbers where most of the recovery dollars are not even performed by OIG staff. Third Party Recoveries and Recovery Audit Contractors make up 82 million of the reported recoveries, but no OIG employees perform the actual work, they merely oversee the contractors, which is a function that could be done by HHSC staff.

    The 15.9 million in recoveries attributed to Investigations and Reviews is another misnomer. Do you know providers who are investigated and convicted for fraud by the Texas Medicaid Fraud Control Unit must send their court ordered restitution to the OIG? Those dollars are lumped in this total and again, no OIG employees did any investigative work on those cases. Providers also self-report? Same thing, the providers say, hey OIG, I did a self-audit and realized I was overpaid and they send the money to the OIG. Why is that lumped into Investigations and Reviews? How much of the 15.9 million is from front line OIG workers who perform investigations and reviews from start to finish. We don’t know because OIG will not break this number down. What are they hiding? “There are two ways to be fooled. One is to believe what isn’t true; the other is to refuse to believe what is true.”

    Most taxpayers will never know the smoke and mirrors in these reports. In fact, there’s probably a good chance many employees of the OIG have no idea what’s behind these numbers either. The Texas OIG has a 55.7-million-dollar budget according to the General Appropriations Act. If you strip away all the fluff in these Quarterly reports, does the OIG pay for itself? Perhaps, but nowhere to the tune of what they advertise in these reports. In this country we pretend to seek truth, integrity, and transparency, yet agencies like HHSC/OIG have been publishing reports like this for so long that it just becomes an accepted form of practice by everyone. If anyone ever had to sit down with 500 taxpayers and explain the details behind these numbers, there would be and outcry. Providers abuse and defraud this system and end up just slapped on the wrist because the watchdogs are terrified of their fate if they were to perform their jobs with some authority. And lack of performance should not be a reason to publish half-truths to make up for those short-comings. I can assure you, providers are not too awfully concerned about the fines OIG tees up for solicitation or anything else. No bark and no bite.

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