As TDMR reported back at the end of September, the new Health and Human Services Commission Inspector General Stuart Bowen had started settling outstanding investigations and cases against Medicaid dentists and providers. Senator Charles Perry was quoted in the media as saying ““There were so many problems that there comes a point where you just have to clear the deck and start over. There comes a point where you have to draw a line in the sand and say that going forward, we are going to do things right.”
Settlements necessary to set things right
This is only right. Considering the findings of the Sunset Advisory Commission in October 2014 and the resultant legislation to reorganize the IG Office in SB207 which came into force this past September, the HHSC- Office of Inspector General was a mess. Bowen replacing the previous Inspector General Doug Wilson was a godsend. As the Commission’s report stated, Medicaid providers were being harmed.
The further resignations in HHSC as a result of media scrutiny of the 21CT contract for Medicaid fraud detection software, ultimately taking out former Executive Commissioner Kyle Janek, his chief counsel Jack Stick and others, showed that things were amiss in HHSC too.
Allegations of massive statewide dental fraud erroneous
But more important than all this, the reason Bowen’s settlements are appropriate is because the allegations of a major conspiracy by Medicaid dentists to defraud the state have been found to be erroneous.
The initial hype that spurred legislative embarrassment and action in 2011 has not been borne out by the facts to date. Jack Stick and Doug Wilson’s calculations of hundreds of millions of dollars of orthodontic and dental fraud have been unfounded. Only one dentist in the whole state in four years was charged with fraud and convicted.
Those other few dentists that have made it to an administrative hearing have been fully exonerated of the allegations of fraud.
Critics of settlements appear to have vested financial interest
There are those that have been booing Bowen’s actions. Unsurprisingly enough, they are those that had a large hand in promoting the allegations of fraud to begin with and it would certainly make them look bad to admit the truth that they have been wrong.
Dr. Bicuspid in a recent article on the Medicaid settlements quoted Houston attorney Jim Moriarty, one of the lawyers that represent Dr. Christine Ellis, in her whistleblower cases against other dentists. Moriarty was the one of first to claim that the high level of orthodontic spending in Texas back before 2012 was fraud. With these cases settling, Moriarty and the other lawyers associated with him are undoubtedly losing out financially from huge potential payouts of more taxpayer money on these contingency cases.
If Moriarty was right about the alleged fraud, he would be entitled to any monies earned and no one could fault him. He appears to have done good work with Small Smiles and taking them to court for their apparent mistreatment of patients. Not everyone is Small Smiles, however. After four years, for him to continue to claim the existence of fraud in Texas by a conspiracy of Medicaid dentists from 2007 to 2011, despite all the facts and court decisions to the contrary, is continuing a fiction. He is losing credibility by continuing to “cry wolf.”
TDMR’s response to critics
The following was TDMR’s response to the Bicuspid article:
The continuing cry of widespread dental Medicaid fraud in Texas when it hasn’t been borne out by the facts only besmirches the profession of dentistry as a whole. After four years, it is getting stale.
Let’s look at the facts.
1. In all cases against dentists that have made it before an administrative court or district court, those judges have found in favor of the dentists. The findings had nothing to do with “extrapolation” but the fact there was no case of fraud, waste or abuse. Out of a hundred or so practices, only four even made it that far. As far as we know only one dentist in Texas has been convicted of fraud after four years of these allegations.
2. In the Rhoden Dental case that went before the State Office of Administrative Hearings, the administrative judges actually awarded court costs to the dentists, a very unusual step, because the case, in their view, should never have been pursued.
3. In the Antoine Dental case, the Texas Office of Attorney General, Civil Medicaid fraud division, paid attorneys Jim Moriarty and Dan Hargrove $250,000 to take the lead on the case. They had all the evidence and all state resources to prosecute Antoine. After four days of hearings before two administrative judges, those judges ruled in Antoine’s favor. Antoine prevailed again just a few months ago in Travis County district court.
4. The federal audit mentioned in the article that reviewed all the Texas ortho cases did not mention any fraud, waste or abuse by dentists. The amount of Medicaid spending on orthodontia had to do with state supervision and the prior authorization process of its Medicaid claims administrator Xerox. A representative for the Texas Health and Human Services Commission told Medicaid dentists that board certified orthodontists were doing the prior authorizations even after the state knew better. Every request for Medicaid orthodontic treatment had to be pre-approved. All requests, even ones dentists recorded as not qualifying, had to be submitted. The majority of those requests that dentists didn’t feel qualified were approved by Xerox and the provider told to perform the treatment.
5. Recently, there has been a hue and cry in Texas $100 million was being cut from the Medicaid budget for physical and other therapy for children. To quote the Texas Tribune, “The number of Medicaid patients receiving therapy services, whether at home or in a facility, has grown nearly 40 percent since 2009, from roughly 170,000 to 240,000 Texans. About two-thirds of those were children, according to the health commission. Meanwhile, spending on home health agencies that provide speech, occupational and physical therapy grew more than 230 percent between 2009 and 2013— from $99 million to $328 million.” That’s as much or more than the Medicaid orthodontic spending increase from 2008 to 2011. The amount of spending didn’t even come to public attention until providers cried about the cutbacks. Where are the cries of provider fraud?
There is lots more that can be said. Information is on our website at www.tdmr.org.
Real Medicaid fraudsters need to be found and prosecuted. But the motivation of those who continue to make alarming allegations of fraud when there is no proof is more than suspect. The attack on Medicaid dentists in Texas has been referred to in at least one media as a “shakedown.”
Texas Dentists for Medicaid Reform