Last Friday, TDMR published our article highlighting growing concerns about dental marketing in Texas Medicaid, as raised by a recent interagency report from the Office of Inspector General (OIG)/Office of the Attorney General (OAG).
Well, the proverbial shit hit the public fan on Monday and Tuesday when the Attorney General issued press releases announcing two separate lawsuits targeting dental providers and marketing companies over alleged kickback schemes (March 30 release, March 31 release) (PDFs of legal filings for each case are below, reading the background section of each filing is suggested).
The dental practices involved in both lawsuits apparently used the same dental marketing firms, Dental Axis and Dental Market One. One case is a qui tam action.
Allegations of paid inducements
The state alleges that dental providers worked with the above-mentioned third-party marketers, who were paid per patient, and, in turn, offered Medicaid patients cash, gift cards, or other incentives.
In at least one case, those payments were allegedly disguised as “marketing” or “survey” services with no real work performed.
Under Texas law, once compensation is tied to patient referrals or patients are induced with something of value, any resulting Medicaid claims can be considered tainted.
Due process applies
TDMR was formed back in 2012 “to promote due process rights for Medicaid dentists because of allegations started in 2011 of large-scale Medicaid fraud in the orthodontic billings that affected many, many dentists.” As time has shown, those allegations weren’t everything they were cracked up to be.
So, due process still applies today. These are allegations.
Pressure to settle
But we have seen how these cases tend to unfold. They rarely end in a courtroom determination. Because of the high cost of justice and trials for defendants, such cases generally result in financial settlements, which are often touted as evidence of guilt even though the agreements usually stipulate no such finding.
There is significant pressure to settle so that the government agencies involved can issue further press releases to prove they are doing their job.
Profession takes the hit
Unfortunately, it is the profession that suffers most, and now, once again, the entire Medicaid dental community is under harsher scrutiny.
This is highlighted in the latest OIG quarterly report, published at the beginning of March. The report shows that while dentists are not the leading source of Provider Integrity preliminary investigations, they now account for the largest share of full-scale provider investigations at 29%.
Home health agencies (21%), physicians (17%), and attendants (13%) generate many more initial complaints than dentists (9%), but when cases advance to deeper scrutiny, dentistry is currently at the top of the list.
About marketing, not patient care
Despite inflammatory references in one of the press releases to unnecessary or even “dangerous” procedures, the legal core of these cases is not clinical care.
It is about marketing.
More specifically:
- Paying for patient referrals
- Offering anything of value to influence patient choice
- Structuring agreements around patient volume
That is where the line is being enforced.
The takeaway
The majority of Medicaid dental practices are doing things the right way.
But these cases make one thing clear.
Marketing arrangements must not involve per-patient payments, patient incentives, or unclear services.
Know where the line is. Stay on the right side of it.