Dentists Vindicated Again By Court of Appeals and Awarded Court Costs But Will the Madness End?

court of appeals decisionToday the Sixth Court of Appeals issued their decision in the Medicaid payment hold case of Antoine Dental Center of Houston.  The court again exonerated the practice from allegations of Medicaid fraud, again terminated the payment hold and, for the first time, awarded them court costs.  The court’s decision can be downloaded here and its judgment awarding court costs here.

[UPDATE: Statesman article “Seeking to prove Medicaid fraud, state regulators lose again”]

Case has been going on for years

Yes, this is the same case that we have been reporting on for what seems like forever.

Back in April 2012, Antoine was placed under a Medicaid payment hold for “credible allegations of fraud” for their Medicaid orthodontic billings.  In May of 2013, Dr. Behzad Nazari and Dr. Wael Kanaan went before two administrative court justices of the State Office of Administrative Hearings for four days and were exonerated of the allegations of Medicaid fraud, waste and abuse and had their “credible allegation of fraud” payment hold terminated.

However through various legal shifts and appeals, the Health and Human Services Commission Office of Inspector General in conjunction with the Civil Medicaid fraud division of the Office of Attorney General have fought to maintain the payment hold and allegations of fraud.

The Court of Appeals’ ruling upholds last August’s Travis County District Court decision which upheld the original SOAH hearing decision.  That decision had been temporarily vacated by a self-serving order by former HHSC Executive Commissioner Kyle Janek and his HHSC “kangaroo” appeals court.  Janek’s final order overturning the SOAH findings was so offensive that it prompted the Texas legislature through SB 207 to change the law so HHSC could never again pull the same stunt.

Ruling highlights the inconsistencies of the state’s case, their witnesses, and arguments

Today’s ruling highlights the inconsistencies of the state’s case, their witnesses, and arguments from the original 2013 hearing.  These mostly surround HLD scoring sheets and the definition of “ectopic eruption” in the Texas Medicaid Manual.

Here is what the justices wrote about the testimony of Dr. Linda Altenhoff, now IG chief dental director, former deputy inspector general for enforcement Jack Stick, and state expert witnesses Dr. Charles Evans and Dr. Larry Tadlock.

Linda Marie Jackson Morris Altenhoff, a doctor of dental surgery and policy expert for the Texas Department of State Health Services, initially testified that the Manuals contained the definition of ectopic eruption, but later recanted that testimony by stating that the Manuals’ language was “guidance and instructions to the providers as to how to score.”

Although she was not an orthodontist and had not treated private or Medicaid patients since 1994, Altenhoff testified about the Manuals’ language.

She stated that benefits were provided only to correct a severe handicapping malocclusion and further testified, “Now, occlusion . . . is how the teeth come together, how they touch, the upper teeth to the lower teeth. Malocclusion is that touching is not appropriate or not accurate, so it’s hitting differently than what the body, under ideal situations, would want the teeth to come together. . . .Severe comes into the fact that it is not just that maybe there’s a couple of teeth out of alignment and, therefore, they are handicapped to some degree. This is severe.”

Altenhoff stated that Medicaid was concerned only about “the front teeth. Again, from canine to canine, upper and lower, that’s the only place you can score ectopic eruptions.” She confirmed that the term “axis” used in the language describing ectopic eruptions was a common term that was not defined by the Manuals. Altenhoff testified that she believed the 2012 additional language regarding rotated or slanted teeth was a clarification of what ectopic eruptions meant, although the Texas Medicaid Bulletin used to update the Manuals classified the 2012 language as a change.

Jack Stick, the OIG’s Deputy Inspector General for Enforcement, testified that the HHSC-OIG determined that the Clinic’s HLD scoring was fraudulent based on [Dr. Charles] Evans’ review of the score sheets. Evans’ report stated that he applied the “definition” of ectopic eruption that was provided by the Manuals, but did not further explain his scoring. When asked how many times Evans’ scores were different from the Clinic’s score just because the teeth were slanted, Stick testified that he did not know. Evans did not testify at the hearing. While Stick claimed that the OIG had other evidence of program violations from its conversations with parents and the Clinic’s staff, Stick was asked, “[W]hat credible allegations of fraud did you have other than Dr. Evans and those things that you listed that nobody has testified to here in — in this hearing,” and he responded, “I’m not aware that we had any.” Stick testified that the Manuals governed “what a provider can do and can’t do or how to bill or — or what to bill,” but claimed that the Manuals did not provide a definition for ectopic eruption. During cross-examination, the Clinic established that Stick testified in his deposition that the Manuals provided the definition of ectopic eruption.

The ALJs heard that, after the HHSC-OIG had already issued the payment hold, it retained another orthodontist, Dr. Larry Tadlock, to review the Clinic’s records. In his February 20, 2013, report, Tadlock, who looked only at the score for ectopic eruptions, determined that sixty-two of the sixty-three patient records did not support the HLD score assigned by the Clinic. Stick and Altenhoff’s testimony that the Manuals did not define ectopic eruptions was supported by Tadlock, the HHSC-OIG’s only testifying orthodontist, who specifically stated that he did not use the Manuals’ language in scoring ectopic eruptions on the HLD score sheets.

Tadlock testified that there is a difference between Medicaid rules and orthodontic practice in terms of scoring, adding, “I think there is a dispute over what ectopic eruption is.” Tadlock relied on the textbook definition in a textbook authored by Bill Proffitt. According to Tadlock, “[e]ctopic eruption in the wrong place means it’s outside of the place where it was planning to go.” Under this definition, Tadlock stated that a tooth is not ectopic if it is merely rotated or slanted. According to Tadlock’s textbook definition, ectopic eruption of teeth other than in the first molars is rare. During cross-examination, the ALJs heard that Tadlock made mistakes on the score sheets of seventeen out of sixty-three patients.

Will it stop now?

In continuing to pursue Dr. Nazari and Dr. Kanaan despite impartial court rulings determining their innocence, HHSC-OIG, and the OAG have shown exceedingly poor judgment. But wasting time and taxpayer monies doesn’t appear to be a concern when it comes to dental Medicaid providers even though the cases don’t go anywhere.

We hope the madness will now end for Antoine.

 

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