Legal Services for Dental and Orthodontics Offices
As a member of the dental profession, the decisions you make, and the businesses you interact with, can make you susceptible to liability for charges related to health care fraud.
Our Health Law Group is made up of the nation’s premier legal health care consultants. Our professional litigation practice is dedicated to helping all medical clinics and medical service providers:
- maintain federal regulatory compliance,;
- manage government investigations into your practice;
- navigate through internal and external health care audits; and
- defend against criminal health care fraud litigation.
If you are seeking legal assistance, hiring a federal attorney from the Health Law Group will allow you to stay informed every step of the way as we aggressively defend allegations against you, and actively assist you in maintaining federal regulatory compliance.
What is Dental Healthcare Fraud?
Dental fraud is an intentional act of deception or misrepresentation of treatment for the purpose of unlawfully gaining benefits. If detected, each act of such a deception could result in criminal charges being brought against you. Fraudulent acts commonly include:
- Unbundling claims;
- Up-Coding of dental procedures;
- Waiving of deductibles or copayments;
- Billing for services that are not performed;
- Misreporting of treatments or dates of treatments; and
- Charging for treatments that are not medically necessary.
Let’s look at each of these in further detail.
Essentially, “unbundling” refers to submitting several distinct or different procedure claims for services to insurance companies separately, in order to reap a higher reimbursement overall.
The American Dental Association defines unbundling of procedures as the “separating of a dental procedure into component parts, with each part having a charge, so that the cumulative charge of the components is greater than the total charge to patients, who are not beneficiaries of a dental benefit plan for the same procedure.”
Up-Coding of Dental Procedures
Up-coding occurs when a dental professional submits a claim for a procedure that is far more complex (and therefore, more costly) than the procedure that was actually performed. For example, a simple filling may be coded as something more time-consuming and complicated, like an extraction.
The ADA defines up-coding as “reporting a more complex and/or higher cost procedure than was actually performed.” Up-coding circumvents the reimbursement limits set by insurance companies, and increases income for the practice. This is fraud.
Waiving Deductibles or Copayments
This occurs when dentists don’t reduce charges when collecting payments from patients. Normally, most insurance companies don’t authorize providers to waive deductibles or co-payments, because the insurance company ends up paying for expenses it wouldn’t have to pay for, if not for the waiver.
Billing for Services That Were Not Performed
This is probably the most common form of fraud that occurs within the dental industry, and is defined as when a dentist bills a patient for services that the dentist did not actually render to them. For example, a dentist who merely examined a patient’s concern bills for administering fluoride treatment and teeth cleaning services as well.
Misreporting Treatments or Dates of Treatments
Often, dental support staff can mistakenly code the wrong procedures into their internal billing systems. This entails coding an incorrect (and usually, more expensive) treatment, in order to increase profit, and results in higher charges to the patient. If this is done intentionally, then it is classed as fraud.
Further, misrepresenting dates on which any treatments were administered is also considered as fraud. The date of any claim and the date of the patient’s signature for that claim must match. Patients sometimes have specific timing requirements before they can access their insurance benefits. Misrepresenting dates can result in patients paying hefty deductibles out of pocket.
Charging for Treatments That Are Not Medically Necessary
Sometimes dentists will administer treatments that go beyond the scope of the patient’s dental concern, for the purpose of racking up billing charges. This is fraud.
Dental Clinics Liable For The Acts Of Dental Hygienist
Your dental clinic may be charged with health care fraud for the acts of its employees.
For example, a dental hygienist was found to have been conducting dental procedures such as filling teeth, extracting teeth, and certain dental hygiene services that require the supervision of a licensed dentist. Even though the dental hygienist was performing these procedures, she was not licensed to do so.
Nonetheless, this dental hygienist still made reimbursement claims for these services and received payment for them as well.
The hygienist was able to collect on these claims by stating that the procedures were either provided by a licensed dentist or that she was being supervised by a licensed dentist.
It turns out, however, that the dentist she was working for was out of the office and not able to practice or supervise at the time. Regardless, the dental hygienist continued on as if the practice was in full operation.
Federal Health Care Benefit Programs
If you run a medical office, you are likely involved in federal health care benefits. Federally health care programs such as Medicare and Medicaid are some of the biggest healthcare providers in the country. As a result, most dental clinics do business with, and provide services to, those who are covered by Medicare and Medicaid policies.
Therefore, it is essential that you comply will all regulatory requirements set out out by the benefits program, as well as all of the federal laws and regulations below.
Federal Health Care Laws and Regulations
In the area of health care fraud, there is a general statute that could apply to practically all cases. In addition, there are statutes that could apply to specific acts within the health care realm. Health care fraud could include any of the following statutes:
Health Care Fraud (18 U.S.C. § 1347.) The general statute for health care fraud is 18 U.S.C. § 1347. This statute prohibits you from making a false or fraudulent statement, or taking part in a fraudulent scheme, in order to receive a benefit or things from a health care benefits program.
Anti-Kickback Statute (42 U.S.C. 1320a-7b(b).) As a dentist, you could are susceptible to being accused of violating the anti-kickback statute. This is because health care providers often refer patients to you for services. However, the anti-kickback statute applies if you a referred to conduct a service that is not medically necessary, but you continue to do the procedure to claim the benefits, and upon receipt of those benefits you make a monetary payment to the person who made the referral.
False Statements in Health Care Matters (18 U.S.C. § 1035.) As a dentist as part of your practice, you must determine what services a patient needs, provide those services, and then submit claims for the services. You can be charged with false statements for various reasons including telling a patient they need services when they really do not, claiming to have provided services to a non-existent patient, or even claiming that another dentist in your office has provided services when that doctor is no longer at the office.
Unfortunately, criminally violating the health care fraud statutes also means that you have violated the civil health care fraud statutes as well. Essentially this means that you can be prosecuted criminally and sued civilly by the federal government and sued civilly by a private party as well. These civil statutes are fairly similar to those mentioned above but with different names and they also come with a different type of penalties.
False Claims Act (31 U.S.C 3729-3733.) Like false statements above, if you make a false claim for a health care benefit such as saying you completed a procedure when you actually did no you could be liable under the false claims act.
Physician Self-Referral / Stark Law (42 U.S.C. 1395nn.) While the criminal area refers to this as anti-kickback, civilly it is called The Stark law. Essentially this law prohibits you from referring patients to other doctors or dentist with whom you are closely related either by blood or financially. This could be that if you helped a friend establish an orthodontist practice, ever since establishing that practice you have had a financial interest in that business.
Penalties For A Health Care Fraud Violation
If you are found guilty of a criminal health care fraud violation, each of the different statutes will have its own penalty. This usually includes the option for a term of prison, a fine, or both. Any penalty that you receive will depend on the facts in your case, your charges, and also whether you have any criminal history.
Penalties for Violating the Federal Health Care Fraud Statute (18 U.S.C. § 1347.) The most basic penalty for health care fraud under this statute is a fine or up to 10 years in prison or both. This, however, is for the basic act of committing health care fraud. This penalty can be aggravated if your fraud cases serious bodily injury to your dental patient. If that is the case, the time of prison can be raised to up to 20 years.
Penalties for Violating the Anti-Kickback Statute (42 U.S.C. 1320a-7b(b).) If you are found to have committed acted that were prohibited by the anti-kickback statute, your basic penalty could be a prison term of up to five years or a fine of up to $25,000 or both.
Penalties for Making False Statements in Health Care Matters (18 U.S.C. § 1035.) The conviction of false statements will penalize you with a term of prison of up to five years or a fine or both. The thing with false statements is that the fine is likely going to be related to the false claims that you made and the benefits you as a result of those claims.
The penalties for a federal crime are a more serious than state crimes. The prison terms are longer and the fines higher. A conviction of federal health care fraud will have a lifelong impact.You could lose your business, and your reputation.
That is why it is important that you reach out to a Health Law Group attorney to help minimize the impact of your charges and ensure the best possible outcome for your case.
Civil Monetary Penalties – (Related directly to the Anti-Kickback statute 42 U.S.C. 1320a-7b(b) to apply civil penalties to criminal cases.) Different facts will lead to different types of criminal and civil charges, contact an experienced criminal defense attorney to discuss your facts and find out what you might be charged with or why you were charged with a crime.
As mentioned earlier, when it comes to health care fraud, if you are being criminally charged then you likely have a civil suit pending. The difference with the civil suit is that there will not be a prison term, but the fines will be a lot higher. Some of the violations may require treble damages, which is a fine of three times the damages to the government.
There is also a great chance that you will lose your licenses and certifications if you are convicted.
Losing Your License to Practice.
The biggest concern would be for you to lose your dental license. If this happens it is likely that you will not practice again.
Losing Your Certifications.
If you lose your certifications there is a likelihood that your practice will be limited. Either way, losing your licenses and certification will have a financial impact.
You may also be charged with additional crime like:
- Money laundering;
- Wire fraud;
- Tax fraud; and
- Identity theft.
False Statements to Government Benefits Programs
One of the easiest ways for you to be investigated and accused of health care fraud it to put incorrect information onto your claim submission for the federal health care benefits programs.
Each False or Misleading Statement Could be Considered a Separate Offense.
When you are being investigated and accused of health care fraud for this type of activity, the government will be looking at each statement that you make for a claim to a reimbursement.
In this case, while investigating a dentist for health care fraud, the government alleged to have discovered improper claims. As part of her business, this dentist worked with both private and government insurance programs. As part of her work, she prescribed a type of teeth straightener.
While the dentist was providing care to her patients, she was also submitting claims to government programs for patients that she knew did not qualify.
Additional facts alleged that the dentist went on to make other false statements by claiming a type of use for the teeth straighteners. As teeth straighteners, they only cost about $50 each. However, when labeled as speech aid prosthesis that price jumped up to about $695. This dentist is alleged to have charged for the higher price.
Here you can see that even if you are providing care, making incorrect claims (like to government programs when a patient does not qualify) or if you are up-coding (like billing as a prosthesis aid rather than teeth straightener), you can be accused of health care fraud as a dentist.
Accepting Improper Referrals – “Kickbacks”
As part of the health care fraud statutes, there is a prohibition against accepting certain referrals, or giving referrals to other health care providers.
Generally, this area focuses on a referral for treatment when treatment is not necessary but is provided any way to claim the benefits. As part of this act, you then provide the person who made the referral with money. This act is called a kickback and falls under the anti-kickback statute.
You can be charged with kickback if you pay a patient to come in and then claim to provide more services than you actually did.
A dental clinic which included a licensed dentist, unlicensed dentist, and a office manager have been charged with a anti-kickback for allegedly implementing a health care fraud scheme.
The report on these individuals alleges that while operating as a Manhattan, NY dental clinic, they recruited patients by paying them $25 to come in for services. The licensed dentist and unlicensed dentist provided basic services. Then when they entered their reimbursement claims for health care benefits, they included additional services that were not actually provided.
This example shows more than one type of activity that is prohibited. First, paying the patients to come in is considered a kickback because these dentists are turning that visit around into a way to make a profit by making false claims. The second, is making false claims (see above) for submitting for reimbursement on services not provided.
Kickbacks Can Lead to Additional Charges
Sometimes when a dental clinic is involved with kickbacks, it often just is related to them making claims for services that they did not provide. However, sometimes it could also mean that you are providing dental care that is unnecessary.
In the early 2000s, a group of dentists were charged with violating the anti-kickback statute and other acts.
During the investigation, it was found that dentists were paid bonuses based on the number of claims they made. This resulted in dentists performing unnecessary procedures.
Some of these procedures were far more than a basic cleaning, rather they could be as extreme as root canals. Which many know, are painful procedures. The quality of services they were providing was at a low level and even the fillings done were considered shallow.
While these dentists were charged with health care fraud and anti-kickback, they were also charged with assault.
There are various acts and schemes that can result in a dental clinic being charged with health care fraud, however there are also many ways to defend you and your clinic from these charges and accusations.
Click the link below to be connected with a Health Law Group attorney now for a free legal consultation.
Dental Clinics Being Investigated for Health Care Fraud
Due to the complex daily routines of dentists, and the number of patients they see in a single day, mistakes can and will be made.
However, if these mistakes continuously go unnoticed, or you do not attempt to remedy these mistakes, you and your practice could be put under investigation and ultimately have criminal or civil health care fraud charges brought against you.
Generally, the investigation will start with either tip that you are committing fraud or from an audit from one of the many agencies.
The Medicare Strike Force has a unit that is continuously conducting audits regardless of any accusations. If any inconsistencies are found, a thorough investigation will begin. This will likely include a look at your records, calling patients, and calling colleagues.
The government will be looking into how you handle your money and how you are paying your taxes as well.
How Is Dental Fraud Investigated?
Whistleblowers. An investigation into your practice can start with a tip from a whistleblower. This whistleblower could be a patient who noticed something odd on a medical statement, or another dentist or co-worker who knows or thinks you are committing dental fraud.
Audits. Both state and federal law enforcement agencies have been aggressively cracking down on instances of dental fraud. Agencies sometimes employ the aid of private payor Special Investigative Units (SIUs) to conduct extensive audits. One way these agencies are made aware of potential dental fraud is when they receive complaints from employees, patients, and/or from insurance companies.
Government Investigations. Another way agencies monitor dental fraud instances is by data mining and analyzing claims submitted by practices. Often, such agencies will compare the claims, billing, and coding, of one practice to that of its comparable peers. If its transactions seem to be inconsistent with those of other practices in its community, agencies will likely launch an audit.
What Do Investigators Look For?
A common transaction issue that investigative agencies often look for are frequencies of procedures. So, if one dental practice is treating a number of patients each day that seems abnormally high compared to other similar dental groups, that’s a red flag to them.
Another giveaway for fraudulent billing is an unusually high percentage of treatments being coded that are extractions, pulpotomies (baby root canals), and stainless steel crowns.
The purpose of an audit is to ensure that your practice is engaging in compliance across the board. So, once an agency begins an audit, it has unfettered discretion to review any data it wants. It is in your best interest to obtain legal counsel if you find yourself in the crosshairs of audits and investigations by such agencies.
Who Enforces Health Care Fraud?
Instances of dental fraud are usually investigated by numerous agencies, including:
The Medicare Strike Force. Formed in 2007 and is one of the largest government health care fraud task forces.
The Coalition Against Insurance Fraud. An association of insurance companies, government agencies, and regulatory bodies that work to enact legislation on fraud.
The Department of Justice (DOJ). It likely that the Department of Justice will determine whether there is a criminal or civil violation or both. They will look at your records and determining if there was fraud.
The Federal Bureau of Investigation (FBI). These are the individuals who will likely physically speak with you or witnesses in person. The FBI can work alone or as part of a unit within the Medicare Strike Force.
The U.S. Department of Health and Human Services and the Office of the Inspector General (HHS-OIG). HHS-OIG will handle your health care records and claims. They will work closely with these other agencies.
Making Statements to the Government
It is possible that the government will reach out to you for a statement or to provide documents. It is important that you contact a criminal defense attorney prior to doing these things. Statements you make, even if you think they will help, can be very harmful to your case.
Not only can they can they be used against you at trial, but they can also lead to additional charges.
Defenses to Dental Fraud
Dental fraud allegations can have devastating consequences to the operation of your practice and your professional standing. It is imperative that you hire legal counsel as early as possible once your dental practice is in the midst of any investigations or audit phase.
Once your attorney understands the facts of your case, and what kind of transactions opened the door to an investigation, your attorney can start structuring a valid defense strategy. Asserting successful defenses to these allegations can prevent your case from going to trial, thereby preserving your reputation in the community and saving you from potentially hefty fines and jail time.
When it comes to healthcare fraud in the dental industry, it is important to keep these three components in mind:
- Deception; and
- Unjust enrichment.
Successful Defenses to Dental Fraud Include:
Lack of intent. Allegations of dental fraud require that you have an intent to defraud. If you can show that the alleged fraudulent conduct was done unintentionally, you have a valid defense. Seemingly fraudulent conduct can commonly occur due to human error in coding or billing, and can be established through your record keeping. You may be able to resolve the situation with minimal fines.
Good faith. If you can show that the alleged fraudulent conduct was a good faith mistake, then you have a valid defense.
Recent Cases of Dental Clinics Charged With Fraud
A Dental Clinic Submits False Claims To Private Insurers:
It is not required that you work only with federal health care benefits to be accused of health care fraud, you might be accused and charged with health care fraud if you submit a false claim to private insurers.
For example, in 2017 a dentist was found guilty for health care fraud. Amongst the many things that he was accused of doing, he also billed private insurance companies for services he provided to patients after the patients were no longer covered by the private programs.
In order to do this, the dentist changed the date of the services provided and claimed that they were performed during the time of coverage.
A Dentist Bills For Medically Unnecessary Procedures:
In a unit-kickback case from the early 2000’s, a dentist was charged for a scheme in which he got bonuses for the number of services he provided. As a result, many of the dentists started providing unnecessary services and were still making claims for reimbursement from the health care benefits programs.
Additional and unnecessary procedures can range from a simple procedure such as a special type of cleaning to an intensive and painful root canal. In the event that the procedure was not necessary, you could be liable for health care fraud.
A Dentist Bills For Services Not Provided:
As you might assume, you can only submit a claim for services actually provided. However, a very common way the many dentists are accused of health care fraud is for billing patients and making claims for insurance benefits for services that have not been provided or making claims to have provided services for a patient that does not even exist.
Generally, when a dentist is charged with health care fraud bill for services not provided, it often happens when a patient receives no actual services at all.
For example, a Georgia dentist was federally charged with health care fraud for billing for additional services when he billed patients for services that he did provide. As part of those bills, the dentist was claiming that he conducted tooth extractions.
However, during audits of this dentist’s billing methods being audited, the auditors noticed some irregularities. They reached out to some of the patients to determine whether procedures were actually conducted. Many of these patients said that the services were not performed on them.
An Orthodontist Who Billed for Services While He was Out-of-State:
While a dentist can be accused of falsely claiming to have provided services on a single patient, there can be instances where the dentist does not provide services at all. For example, in 2013 an orthodontist who practiced in Texas and Indiana was found to have created a scheme where he scheduled extra patients on the days that he was in the opposite state (either Texas or Indiana).
On those days that he was out of town, his dental assistants would perform his duties including making treatment decisions and performing the treatments when they were not legally allowed to do so. The orthodontist then made claims for these services that he did not provide.
As you can see in the example above, it is not just that services were not provided, but not being provided by the licensed dentist that should have provided the services. While there are ways to allow for dental assistants to provide certain services that normally only licensed dentist can provide, if you decide to conduct your practice in that way, you need to strictly follow the requirements. In this example, the licensed dentist should have been supervising the dental assistants, but was not.
A Dentist Who Submitted A Bill For A Phantom Patient:
A phantom patient is a patient that does not exist. A dentist can violate the health care fraud statutes in various ways under this act. The most common is likely revolving around a dentist billing for services to a patient when that patient has never seen the dentist at all. Take the example of the Georgia dentist provided above. In that case not only did that doctor make claims for additional services that he did not provide, one of the claims was for a patient who was not even aware that he was a dentist. Regardless, the dentist still submitted a claim for services.
Another form of phantom patients could be that a dentist claims to use items for services and as a result, they need to be replaced. Because of the replacement, the dentist makes a claim and either receive a monetary reimbursement or receives the actual product. In this specific instance, there may be an actual patient, but the patient has nothing to do with the services.
Another Dentist Who Billed for Services Not Provided:
Another example of making claims for services not provided comes from a doctor who simply claimed he was doing more work than was actually being done.
In 2017 a California dentist was charged with health care fraud for claiming that he was providing patients with dental care. As the dentist was making submitting his claims to health care benefits programs, he included claims for services that he did not actually provide.
During the investigations, it has been assumed that the dentist had likely been doing this for about seven years. The charges against the dentist include billing for crowns and fillings spread out over the court one and a half years. One of the issues that this dentist faced was that even though it looked like he was billing private programs, these programs had government affiliations.
An Attorney From the Health Law Group Can Help You
A criminal defense attorney who is experienced in federal criminal law will help with a defense in your case.
A Superior Understanding of the Law.
A criminal defense attorney who practices in health care fraud understands things about your dental practice. These include the different types of billing and coding that you use when submitting a health care claim. Additionally, there are different factors that take place when charged with health care fraud and depending on whether you are charged with health care fraud, false statements, or anti-kickback, a criminal defense attorney will have an indication of what steps to take to help your case. Finally, an experienced criminal defense attorney is aware of the types of punishments that you could be facing and can help to minimize those punishments.
Knowledge of the Procedures to Effectively Defend You.
Because of our prior experiences, we have knowledge of applicable defenses for health care fraud and how they could apply to your case. We have a practice model that includes strategies in minimizing the charges against you and the penalties you may face. We are aware of the different tactics in the investigations conducted by the government and can find weaknesses in the arguments against you.
The Services We Provide If you are Facing Health Care Fraud Charges
As soon as you find that you are being investigated, you can contact our office. We can give advice during the investigation about the steps you should be taking. Additionally, if it turns out that you are charged with health care fraud, we can provide representation while your case is pending at trial. This would include speaking with you about the case, investigating your case, and making court appearances. Finally, we can provide representation through trial, and necessary through an appeal.
Fraud Detection in Your Practice
As a dental professional, you’re a specialist in your area of clinical expertise. However, as a business owner, it is important to gain expertise and maintain vigilance over the administrative areas of your practice also.
Dentists are responsible for any and all claims that are submitted through their office, regardless of whether they have personal knowledge of the claims.
Perhaps the easiest way to prevent dental fraud from occurring in your practice is to exercise due diligence in your management processes. The following are some tips for preventing fraudulent activities:
- Discuss coverage and fees before administering patient treatments, especially for optional or non-covered services, so that your patients are aware of their financial responsibilities;
- Incorporate a fraud policy into your employee handbook, with specific examples of what you consider to be fraud. Make sure all your staff read, understand, and sign the policy;
- Specialize payment-related tasks. For example, delegate accepting payments to one person, and delegate to another person the task of making adjustments to patient billing. This ensures accuracy and centralized task management;
- Routinely review all collection and production reports, to catch any errors or discrepancies that can occur.
Another method to preventing dental fraud in your workplace is to hire outside specialists, such as dental fraud specialists, or legal counsel, to perform periodic audits or advise on legal risks and their ramifications in your business operations.
Reaching out to a Health Law Group attorney will be an important step to your success in defending health care fraud charges.
If your run a dental clinic, and you are concerned about possible regulatory or compliance issues, government investigations, or health insurance audits, speak to one of are health law attorneys today.
Our health law attorneys will be able to advise you every step of the way.
If you are a dentist or other oral health care provider, and you have been charged with, or have come under investigation for, health care fraud or any of the charges listed above, contact an experienced health care attorney at the Health Law Group as soon as possible.