As reported in the press this week, there has been a tremendous effort on the part of the new Health and Human Services Commission Inspector General Stuart Bowen to settle old, outstanding investigations against Medicaid providers—including dentists. Per the Chronicle, Bowen has offered settlements to nearly 100 Medicaid dental providers “to clear the decks” as previous methods used by OIG were flawed.
The effort has been applauded by legislators with Senator Charles Perry telling the Chronicle:
“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.”
Some cases being retooled to move forward
TDMR has learned that while OIG is going in this new direction, the Office of Attorney General, Civil Medicaid Fraud division, is moving forward with some cases. These administrative case were originally filed by the OIG, then non-suited by OIG last December. The OAG picked them up and moved them to Travis County District Court because they were some of the oldest or most farthest along in the overpayment process.
The affected providers are Antoine Dental Center, M&M Orthodontic, Harlingen Family Dentistry, Herrscher, National Orthodontix and RGV Smiles.
Rather than settle or review the cases as the OIG is now doing, the OAG is apparently retooling its arguments to press forward with the cases even though the agencies closest to the facts have apparently found little merit in them.
Cases called “frivolous”
Austin attorney Jason Ray who represents several of the practices told TDMR that he was amazed that the OAG is intent on reworking all of the cases to bring forward new allegations against the dentists, even though the cases seek to recover for dental services provided in 2004—over a decade ago.
He said the OAG is beginning to distance itself from its early claims that the dentists had knowingly submitted false HLD score sheets because they knew that Xerox, the state’s then Medicaid claims administrator, was approving all prior authorizations. No court has bought that argument as Antoine Dental and Harlingen Family Dentistry had been cleared of any Medicaid fraud during their payment hold hearings before the State Office of Administrative Hearings. Antoine also just recently received further vindication from a decision by a Travis County District Court judge. The OAG is appealing that decision.
The OAG has begun trying to take new angles on HLD scoresheets and orthodontic services.
One new argument the OAG is testing involves the idea that any HLD score sheet which has a score of 36 or more for ectopic eruption is evidence of fraud. This is because, the OAG claims, 36 is the maximum number that can be scored for ectopic teeth. That means the OAG is convinced that if a dentist scored more teeth than were eligible to be scored, it had to have been done with the intent to defraud Medicaid.
But the score to achieve comprehensive orthodontic eligibility was only 26, and often less. Dentists did not make more money when a patient’s HLD score was higher.
So it appears the OAG is taking the position that if a dentist scored a patient as having an HLD score of 26, 30 or 36, then the patient would be eligible for braces. But if the dentist wanted to make a point that other teeth were also ectopic and scored more than 36, then the dentist was somehow trying to commit fraud even though the patient was already qualified at the lower score.
Ray said that he considers the cases “frivolous” and that there is no evidence of any fraud – mistakes, maybe, omissions, maybe, but not fraud.
He stated, “The OAG is scrambling to find anything—any technical violation, any appearance of impropriety—that might look like these dentists did something wrong. They are desperate to fabricate an argument that might make these dentists look sinister.”
Move to Travis County District Court fair, but spirit of fairness now lacking
The December move to Travis County was seen as a victory at that time for the providers since an impartial civil court would have to hear the serious allegations involved rather than an administrative court which could have its final decision simply overturned by HHSC if it was not in the agency’s favor. That had already happened in the case of Antoine Dental. Some of the cases had also been languishing for years and it seemed an opportunity to get them moving and resolved. That hasn’t been the case.
Janek, Wilson and Stick gone but no change of attitude visible at OAG
However, with Kyle Janek, Doug Wilson and Jack Stick gone and new spirit of cooperation and redress being taken by Texas Medicaid management, these dentists are now, for some reason, being pursued again over investigations that go back to 2004.
It is even more preposterous for HFD and Antoine since the state had already lost its case badly against them at SOAH and, for Antoine, even now district court.
It doesn’t seem right that those dentists who suffered the most at the hands of the old OIG, so much so their cases were transferred to district court, should continue that treatment.
An even hand should prevail and these cases be reviewed and dealt with accordingly.