Tuesday, January 01, 2002
by Richard D. Weber, J.D.
MDA Legal Counsel
Published in the January 2002 issue of the Journal
Question: I am concerned about recent newspaper reports about dentists facing criminal and civil charges for Medicaid fraud. As a participant in the dental Medicaid program, how can I stay out of the problems those dentists are facing?
Answer: The best way for a dentist to avoid charges of Medicaid fraud is to practice good dentistry. This requires not only professional competency, but also an understanding of the reimbursement system.
Cases of outright fraud are easily avoided. Don't bill Medicaid, or any other payor or patient, for services that have not been furnished. Similarly, don't misrepresent on a bill the level of service that has been furnished. If a simple cleaning has been furnished, that is the service, which should be identified on the claim form, not a more extensive procedure in order to receive a greater fee.
These points state the obvious, but they cannot be over-emphasized because the punishment for Medicaid fraud is severe. Under Michigan's Medicaid False Claim Act, it is a felony to knowingly and falsely represent that services, for which a claim is made, were medically necessary. Each violation is punishable by up to four years imprisonment and/or a criminal fine of up to $50,000.
Substantial civil penalties can also be imposed. The State can recover a civil penalty equal to the full amount received by the dentist, plus triple the amount of damages suffered by the Medicaid program. Depending on the number of violations alleged and the dollar amount at issue, the penalties can quickly add up and may vastly exceed the original fees paid to the dentist.
A conviction of Medicaid fraud under Michigan law can also have a spill over effect. A dentist's license to practice dentistry would likely be suspended or revoked, and he/she would be excluded from the Medicaid Program.
Practicing good dentistry requires adequate charting in a patient's dental records. This includes recording the patient's history and symptoms, the dentist's diagnosis and reasons for the procedure, and a description of the procedure performed and outcome.
A patient's dental chart provides crucial evidence in a reimbursement audit. Reimbursement audits by Medicaid and other payors begin with a paper trail. The trail starts with the claim form submitted by a dentist and eventually leads to the patient's dental chart. If Medicaid (or another payor) audits a chart and the chart does not match the dentist's claim form, Medicaid may conclude that the service was never rendered, that a lesser service was furnished than claimed, or that the service furnished was neither medically necessary nor appropriate. In any of these instances, the dentist, at least, may be exposed to civil liability and substantial repayment obligations and, at worst, to a criminal investigation and possible prosecution.
Dentists, like other health care professionals, cannot insulate themselves from liability by claiming ignorance or that their billing clerk or billing service is responsible. While an isolated error or mistake should not be sufficient to impose liability, a course of conduct, which indicates a systematic or persistent tendency to cause inaccurate claims to be presented may result in liability.
One technique that dentists can consider to help reduce the risk of allegations of fraud is to establish a reimbursement and billing compliance plan. A compliance plan is simply what its name implies: a set of written procedures which the dentist adopts and carries out in practice to insure that claims are properly submitted.
The existence of a compliance plan, by itself, will not immunize a dentist from civil or criminal liability, but it can provide evidence that any mistakes made were inadvertent and that the dentist has attempted to follow the law in good faith. It can also assist the dental practice financially by detecting under-billing, ensuring that a dentist is paid what he or she is entitled to be paid, and improving communications within the practice.
An effective compliance plan should include the following components:
- A clear commitment to compliance;
- the appointment of a trustworthy compliance officer, which in most instances will be the dentist or the office manager;
- effective training and education programs in billing and reimbursement principles and procedures;
- auditing and monitoring billing practices and procedures;
- communications within the practice and with payors;
- internal investigation and enforcement procedures to detect and correct questionable billing practices and errors;
- a process to identify offenses and apply corrective action initiatives.
Dentists should take to heart the old adage that "an ounce of prevention is worth a pound of cure". Practicing good dentistry, including good charting, and taking proactive measures, like establishing a compliance plan, can go a long way towards avoiding allegations of Medicaid fraud.