“Cover Your Ass” by State Officials About Medicaid Ortho Dentists Continues

The reason TDMR was formed back in 2012 was to put out facts and insist on due process for a large number of dentists and orthodontists accused of Medicaid fraud arising from the great Xerox/HHSC orthodontic debacle. Unfortunately, these issues are still with us today.

The False narrative

Let’s recap the original scene.

Media exposure in 2011 from WFAA in Dallas about the huge amount of Medicaid spending on orthodontic procedures led HHSC bureaucrats to concoct and maintain the erroneous storyline that “a vast horde of Texas dental professionals had played a broken Xerox/TMHP orthodontic prior authorization system to provide legions of underprivileged children with supposedly not-medically necessary orthodontic treatment. These dentists, who had no connection to each other, were said to be tacitly working in concert and, of course, being smarter than the bureaucrats in Austin, knew Xerox/TMHP would rubberstamp anything so took advantage of it.”

Bureaucrats incompetent

Of course, this supposes that HHSC staff and executives were so incompetent that they didn’t know the orthodontic prior authorization procedure was simply a “rubber stamp” process even though they supervised it and paid out hundreds of millions of dollars for eight years.

Well, of course, that is correct. These staff and executives even ignored a 2008 audit of the prior authorization process warning them it was problematic.

Have we mentioned that Dr. Linda Altenhoff, the state dental director at the time and now a vice-president of MCNA, observed Xerox’s “dental specialists,” usually high school graduates and even a former janitor with no dental training, at work rubberstamping prior authorization requests?

Wow! If any dentist is to blame for the mess, there you have it.

The Truth regarding the dentists

Let’s look at the facts:

  1. Over the last eight years, not a single dentist across Texas has been criminally charged, much less convicted of Medicaid fraud from the orthodontia mess.
  2. Every dentist that was brought before the State Office of Administrative Hearings on a payment hold for Medicaid fraud won their case. The state, not just HHSC-OIG but the Office of Attorney General, could not prove its case. The state’s expert witnesses were found not credible.
  3. The federal audit which determined that Texas owed back some $123 million to the feds for the orthodontia mess laid the blame at the feet of the state and its oversight of its contractor Xerox. No mention was made of the role of dentists.

Based on the above, the TRUTH is the dentists were applying the Medicaid definitions as they were written at the time and submitting the prior authorization requests properly for approval which was given by the state through its contractor Xerox. The dentists were even required to send in requests for those they didn’t think qualified but then Xerox would approve them anyway.

Reason for false narrative

So what was the reason for the state’s false narrative?

A bureaucratic “cover your ass.” They were in the wrong but wanted a scapegoat for political cover.

By using the power of the state to cow small pocket providers, even bankrupt them, they could control the storyline. “Of course, it was those horrible dentists,” they could crow even though it’s not the truth.

Ruined careers of several high-level bureaucrats

It worked too until 2014 when the holes in these allegations became so large a 747 could fly through them.  This helped lead to the firing of Doug Wilson (Gov. Perry asked him to resign) as the head of OIG and was partly responsible for the fall of Kyle Janek as HHSC Executive Commissioner.

False narrative mindset still continues

Unfortunately, this tragic mindset appears to continue at the Office of the Attorney General today. The OAG recently convinced a Travis County District Court judge that it had not brought its full case against Antoine Dental Center of Houston back at SOAH in 2013. So the judge ruled against a partial summary judgment motion by Antoine’s attorneys that the OAG could not retry the same SOAH case in a new trial.  The motion documents are below.

The funny thing is that the OAG approved $250,000 to hire outside attorneys to try that SOAH case and lost spectacularly. They even appealed the decision and lost after an HHSC judge (a former OAG employee) reversed the favorable SOAH decision.  So it seems to be a parlor trick now to say that they hadn’t brought their full case. As a reminder, the three-judge SOAH panel could not find any evidence of Medicaid fraud on the part of Antoine.

Taxpayer footing the growing bill

We repeat here the following from a late 2015 TDMR story on OAG spending on the Antoine Dental case.

The Civil Medicaid Fraud unit [of the OAG] took the case over from the Health and Human Services Commission Office of Inspector General when it went before the State Office of Administrative Hearings (SOAH) on Antoine’s payment hold hearing in 2013. The OAG was responsible for hiring outside lawyers who represent whistleblower Dr. Christine Ellis, Dan Hargrove of Waters and Kraus and Jim Moriarty, to run the case for $250,000.

The released open records document shows that the Civil Medicaid Fraud unit also used up to 18 of its own lawyers against Antoine and spent some 1,841 hours on the litigation–an estimated $550,000.

Considering that the state has settled other outstanding cases after the replacement of Doug Wilson as OIG, why do the taxpayers of Texas continue to fund this apparently profligate spending of the OAG in pursuit of Medicaid providers who have already been to court and acquitted.

We have to question if this is really a pursuit of justice.

2019 11 19 Nazari Amded MSJ on Res Judicata
2019 12 12 SOT Resp to ADC Amd MPSJ +exhs.
2019 12 18 ADCNazari Reply to SOT Response to Amded MSJ, with exhibit

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