On Sunday, the Austin American Statesman published a feature article on the current state of affairs regarding how Texas regulators are dealing with the claims of large scale Medicaid orthodontic fraud that have been swirling around Texas since 2011. The article is available on the Statesman website as premium content and it is recommended that the full article be read.
“Government lawyers soundly defeated”
Under the banner “Dentists fight back against Texas effort to deny Medicaid funding”, reporter Eric Dexheimer points out that the state’s allegations against Medicaid dentists so far have not held up and in those cases which have gone to court “the government’s lawyers have been soundly defeated.”
In fact, he writes that “the state’s original narrative — that several dozen unscrupulous dentists bilked taxpayers for unnecessary tooth repair — is being turned upside down. State documents and a series of new court filings suggest another party bears at least partial responsibility for any financial losses: government regulators themselves.”
State regulators ignoring TMHP/ACS
The main focus of the article is that state agencies have gone almost exclusively after Medicaid dentists while all but ignoring the state’s private Medicaid claims administrator, Affiliated Computer Systems (under the name Texas Medicaid and Healthcare Partnership – TMHP) , which took over the system in 2004 and was responsible for overseeing and approving hundreds of millions of dollars in Medicaid ortho claims.
ACS Political Clout
The significant political clout of ACS is noted. “ACS is one of the state’s largest contractors. It contributed $150,000 to Gov. Rick Perry between 2001 and 2011, according to an analysis by the nonprofit Texans for Public Justice. Its lobbyist over the past decade has been Mike Toomey, Perry’s influential former chief of staff, whom ACS has paid as much as $450,000 to advocate on its behalf, the nonprofit calculated.”
Pre-approval claims rubberstamped by unqualified staff
ACS was responsible for pre-approving every Medicaid orthodontic claim before any work was done or money paid up until 2012. Two HHSC-OIG audits of ACS in 2008 and 2012 reported on deficiencies in ACS’s pre-approval process. Specifically that claims were being approved and essentially rubber stamped by untrained personnel but ACS’s contract with the state required the job to be done by qualified dental staff. The testimony of ACS’s former dental director is quoted.
“Three months ago, Jerry Felkner, the dentist who oversaw ACS’s preauthorization program during the time the dentists were alleged to have cheated, was grilled in a court deposition. “Do you know of any changes that were made in the operation of TMHP as a result of the (2008) audit?” he was asked.
“No, sir,” he replied.
“It wasn’t a process at all”
Even Jack Stick said it was so. “What the contract contemplated in terms of prior authorization approvals, ACS does not appear to have been doing at any time,” Jack Stick, deputy inspector general of the Health and Human Services Commission, testified in a recent court deposition. “It wasn’t a process at all. It was simply a, move the paper from the left side of the desk to the right side of the desk.”
The article carried the company’s statements on the matter.
“The company responded that it never received any such feedback. “TMHP did not receive any direction from HHSC as a result of the audit  or the findings to change this process,” the company wrote in response to the follow-up…
“A spokesman for Xerox, which bought ACS in 2009, said the company fulfilled its contract with Texas. “Texas Medicaid and Healthcare Partnership performed its work in good faith and with transparency from the time the contract was awarded by HHSC until the present,” Kevin Lightfoot wrote in an email. “Xerox bears no responsibility for the fact that the state has called into question the validity of these dentists’ submissions.” “
“Prosecutors have spared no expense pursuing the providers”
Dexheimer also reports on the extensive legal expense that the state has gone to in relation to the dentists.
“Prosecutors have spared no expense pursuing the providers. During a hearing against Antoine Dental Center last May, “the state must have had 15 or 20 lawyers,” said Tony Canales, who represented the dental practice.
“The government’s team included attorneys from the state attorney general’s office and the Health and Human Services Commission’s Office of Inspector General. It also included private attorneys the state had hired — for as much as $500 per hour, $250,000 in all — specifically for the case.
“But the state has had little success so far in proving in court that it was justified in freezing the Medicaid payments. Ten dentists have quietly settled, paying a total of $9.7 million without admitting any criminal guilt — the price of ending what promised to be a protracted legal battle, their attorneys say.”
State claims falling apart
Lastly and more importantly, the article reports on the true reason for the dissension and claims of alleged Medicaid fraud as TDMR has reported many times, the professional disagreement on the definition of ectopic eruption.
“To prove its case, the state hired an expert who said that in virtually every case he reviewed, the dentists under investigation had inflated their evaluations to meet Texas’ Medicaid definition. Yet as both cases progressed, his claims fell apart.
“That’s because the state’s own medical definition of an especially disputed procedure — an ectopic eruption, or improperly placed tooth — was so vague that it was wide open for interpretation. During the hearings, when several dentists were asked to evaluate the same patient’s chart, they reached different conclusions for whether the patients’ teeth were eligible for government-covered braces.
“The broad definition “leaves interpretation of those words to professional judgment,” Catherine Egan, the judge in the Antoine case determined. “These differences in professional judgment do not prove fraud or intentional inflated scoring.” As a result, in both cases the judges dismissed the opinion of the state’s expert.
The article is a great public service.