Oberheiden P.C.
Former Medicare Prosecutors & Defense Counsel
A recent report from the American Academy of Pediatric Dentistry (AAPD) highlights the increased attention law enforcement agencies are focusing on healthcare fraud within the field of pediatric dentistry. State and federal investigators are targeting more and more dentists with allegations of Medicaid fraud. Pediatric dentists are particularly at risk, as they extensively serve patients insured by Medicaid.
The Medicaid program has auditors that are dedicated to monitoring its billing data. If these auditors note inconsistencies in a provider’s billing practices after a preliminary investigation, they may initiate an official audit. Audits are conducted to identify billing irregularities and flag indicators of fraud. But as the AAPD Report notes, flaws in the auditing process can hurt innocent dentists and dental practices. Therefore, dentists faced with an audit should grasp what to do when faced with a Medicaid dental audit.
Understanding the Procedure
Dental Medicaid Audits often begin with what are called “desk audits”. This means that a dentist that is under such an audit may not receive any notification until the dentist receives a Draft Audit Report, which details the findings and the alleged fraudulent activity. After the delivery of the Draft Audit Report, the dentist has 30 days to respond to the Report with any arguments, objections, or requests that the dentist wishes to make. The dentists must seek legal guidance in that process. Our team of experienced attorneys have worked with several similarly situated clients and know what demands and objections can reasonably succeed against the government. A dentist who receives a Draft Audit Report should know that Medicaid presumes that the report is received by the dentists within five days of its date (allowing for mailing). Thus, the dentist has 35 days from the date on the letter. But the dentist should retain counsel and responding to the report as quickly, and as effectively as possible.
After the dentist responds, Medicaid, through the Office of the Medicaid Inspector General will consider the dentist’s response, and ultimately produce a Final Audit Report. Once the dentist receives the Final Audit Report, the dentist has 20 days to arrange for payment. If payment is not arranged within this time frame, the dentists can face partial withholding of its Medicaid payments and later has 60 days to decide whether to request a hearing.
Recognizing Flaws in Medicaid Fraud Audits
To best protect their interests, dentists should recognize the flaws that occur in OMIG fraud audits. Like many other government agencies, the OMIG has a vast number of people who are solely dedicated to detecting fraud. To reach that end, auditors may, at times, intentionally or unintentionally neglect to employ proper means of investigating whether fraud occurred. Auditors, for example, may become inclined, based on their experiences, to have preconceived notions of indicators of fraud that may or may not be true in each situation. Dentists face with such audits should seek legal counsel to keep the government on track and ensure that the dentist is given a fair audit. Our team of experienced attorneys have helped many dentists faced with such audits, and are available to serve clients nationwide, with experience in the states of Michigan, Illinois, and Texas. But dentists themselves should be vigilant in detecting these flaws in Medicaid Fraud Audits.
Poor Record Keeping Interpreted as Fraud
In theory, Medicaid audits are designed to differentiate between actual fraudulent behavior and legitimate mistakes. One example where this distinction is important is in record keeping. The quality of record keeping among dentists can vary greatly, just as it can with any other profession or industry. While an evaluation of record keeping may reflect on a dentist’s organizational skills, auditors also extend, through their perception, that disorganization is synonymous with fraud.When auditors fail to recognize the distinction between poor record keeping and professional liability, there is a strong potential for innocent dentists to be inappropriately charged with fraud.
AAPD’s Areas of Concern
The AAPD details several areas of concern about these Medicaid audits. These shortcomings can harm both the patient and the provider. Patients may be unreasonably burdened by having to change doctors amid the treatment process and providers ability to earn from practice can be severely curtailed, particularly for pediatric dentists whose practices greatly rely on Medicaid reimbursements. For these reasons, dentists and their legal counsel, should heed the AAPD’s advice in looking out for these flaws in the Medicaid dental audit process.
A lack of peer review. Auditors, in any industry, should be extremely knowledgeable in the specific area they are reviewing. Ideally, an audit of a pediatric dentist should be conducted by another pediatric dentist with similar or superior qualifications. Yet, most auditors are employees of state or federal agencies who have little to no professional dental experience. Such persons may not be equipped with the academic or professional knowledge to make the necessary determinations of whether procedures were or were not medically necessary. To ensure that a dentist does not become a victim of this flaw in the auditing process, dentists under review should document and be ready to explain why they furnished patients with specific items and services.
Contingency fees. The Affordable Care Act allows for payment to an auditing agency based on the amount of funds that can be recovered from their audit findings. This is a clear conflict of interest and one that has not been addressed by Congress. To ensure a fair investigation, it is crucial that dentists who are under review retain experienced legal counsel.
Flawed method. Rather than being compared against similarly situated providers, the OMIG audits dentists on an out of context, case-by-case basis. Although such an approach has some advantages, such as considering each provider’s own legitimate circumstances, it disregards commonly regarded industry norms and practices. To identify true outliers, providers and patients should be equipped with knowledge on how their practice compare with those of other providers and patients with similar demographics.
Dr. Nick Oberheiden
Founder
Attorney-at-Law
John W. Sellers
Former Senior Trial Attorney
U.S. Department of Justice
Local Counsel
Joanne Fine DeLena
Former Assistant U.S. Attorney
Local Counsel
Lynette S. Byrd
Former Assistant U.S. Attorney
Partner
Amanda Marshall
Former U.S. Attorney
Local Counsel
Aaron L. Wiley
Former Federal Prosecutor
Local Counsel
Roger Bach
Former Special Agent (OIG)
Gamal Abdel-Hafiz
Former Supervisory Special Agent (FBI)
Chris Quick
Former Special Agent (FBI & IRS-CI)
Kevin M. Sheridan
Former Special Agent (FBI)
Ray Yuen
Former Supervisory Special Agent (FBI)
Dennis A. Wichern
Former Special Agent-in-Charge (DEA)
Flawed Auditing Risks Denying Proper Dental Care to Children
A pediatric dentist’s practice varies greatly from a general dentistry office. Almost half of a pediatric dentist’s patients are under the age of five. Because of the vast number of patients of that age covered by Medicaid, pediatric dentists tend to accept more Medicaid patients than their general dentist counterparts.
Studies have shown that significant disparities exist in oral health based on socioeconomic status. Children under the Medicaid program often have different life experiences than children with private dental insurance and many do undergo routine dental maintenance such as regular cleanings and checkups. Consequently, Medicaid patients generally have a higher propensity for dental issues than children from more affluent families.
While fraud and abuse can undermine the Medicaid program, it is just as clear that pediatric dentists are uniquely qualified to serve the population covered by Medicaid. But the unfair auditing practices detailed above may prevent new dentists from enrolling in Medicare and drive away dentists who are already enrolled. This trend threatens to negatively impact the underprivileged Medicaid community by making satisfactory dental care an unattainable goal.
An Experienced Medicaid Defense Attorney Can Help
Oberheiden P.C. includes former federal healthcare fraud prosecutors and experienced healthcare fraud defense attorneys. We understand how a Medicaid fraud audit works and we have helped many clients achieve favorable results following audits. Our number one goal is helping our clients avoid criminal charges and maintain their professional licenses. We counsel our clients throughout the audit process with an eye toward protecting their practices and their reputations.
In addition, Oberheiden P.C. provides consulting services to healthcare businesses and practitioners who want to make sure they comply with all applicable healthcare regulations. As experts in healthcare law, we help our clients construct their business practices in a manner that will prevent an audit or investigation from occurring.
The attorneys of Oberheiden P.C. have a record of successfully defending Medicaid and Medicare dentists and other healthcare providers in government audits and investigations. Former Medicaid auditors, former federal healthcare prosecutors, and well-respected healthcare fraud defense attorneys assists clients, like you, across the United States. Our three priorities in each dental Medicaid fraud case are (1) to make sure that you keep your license and (2) that you will not be excluded from providing Medicaid services and (3) that a government investigation will not turn into a criminal matter.
- Lynette S. Byrd has made a name for herself when successfully representing dentists in seemingly hopeless situations. Ms. Byrd is a former federal prosecutor with extensive experience in healthcare fraud investigations. At the Department of Justice, Ms. Byrd prosecuted healthcare fraud, Anti-Kickback violations, False Claims Act, and Stark violations on behalf of the United States—and she now offers these valuable insights to her clients at Oberheiden P.C.
Further Information About Dental Practices
