On August 15, 2024, Georgia Attorney General Chris Carr sent a clear message that dentists who defraud the Medicaid program will face severe consequences.  A 15-count indictment was issued against a Forsyth County dentist for billing the state program for over $40,000 in dental services that were never actually provided.  According to Carr, this effort by the Medicaid Fraud Division was undertaken to ensure “the integrity of dental providers and services” throughout Georgia. 

This trend targeting individual dentists and dental practices appears to be tracking a broader crackdown on dental fraud that has recently occurred in other states such as Connecticut, Pennsylvania, and Texas.

Common Types of Dental Fraud Schemes

As indicated by the Georgia indictment, a top priority is investigating and prosecuting those dentists who bill Medicaid for services that were never actually provided, also known as “phantom services.”  Such misconduct is usually discovered through Medicaid chart audits, data mining of provider billings, or patients who report the fraud. 

Other common types of schemes include: 

• Billing for unnecessary or unneeded services;

• Allowing unqualified staff to treat patients;

• Failing to provide adequate supervision of staff;

• Failing to obtain patient or parental consent;

• Misrepresenting dates of services in order to get a claim paid;

• Billing for higher levels of service than actually provided; 

• Billing for patients who are ineligible for Medicaid coverage; 

• Routine waiver of patient copayments; and 

• Paying kickbacks to patients to induce them to receive dental care.

Both State and Federal Sanctions Are Possible

Although Medicaid is administered through different state programs, its primary funding source comes from the federal government.  Therefore, when Medicaid providers commit intentional fraud, either the state, such as Georgia’s Medicaid Fraud Division, or federal authorities, like the U.S. Department of Justice (DOJ), can prosecute those crimes.  This leaves dentists and their practices vulnerable to a wide array of possible sanctions.  For example, if prosecuted by the DOJ, then individuals could be subject to harsher penalties for crimes such as conspiracy, wire fraud, and even heath care fraud, as well as having their assets seized or subject to forfeiture.

Another major concern is the collateral consequences of a conviction relating to dental fraud.  Dentists can be excluded from state and federal health care programs and/or lose their network participation status with commercial payors.  Generally, an exclusion based upon a criminal conviction must last for at least five years.  Dentists risk not only suspension but permanent revocation of their professional license, severely effecting their career and livelihood.

Kickbacks and Payment for Referrals Are a Growing Concern

Recent enforcement actions indicate that kickbacks and bribes are a growing concern in the dental industry.  To be clear, government health programs, such as Medicaid, will not pay for services if they arise out of an illegal kickback arrangement.

A typical scenario has the dental practice paying “recruiters” to find and refer Medicaid patients to the practice for dental care.  These payments for referrals, which can appear legitimate or be disguised through written marketing or patient outreach contracts, oftentimes, violate the federal anti-kickback statute.  

Another common feature is for the recruiters to give smaller kickbacks, via cash or gift cards, to the Medicaid beneficiaries or to the parents/caregivers of the beneficiaries, in order to induce them to see a particular dentist.

One recent prosecution had a dental practice paying a recruiter a $115 fee whenever a Medicaid patient that they referred received services beyond routine preventive care such as dental cleanings and exams.

Suggested Compliance Steps for Dental Practices

Here are a few suggested steps for dental practices to consider:

1. Establish a practice infrastructure that emphasizes compliance and one that closely tracks the seven elements of a successful compliance program.  Pay particular attention to your written policies and procedures, training and education, auditing, and risk assessment.  Remember, an ounce of prevention is worth a pound of cure.

2. Be prepared for audits by the government or a government contractor.  Have a response team ready should an investigator show up at your practice requesting records or employee interviews.  These audits, usually performed after payment has already been received, will focus on the accuracy of your chart documentation, coding, and billing process.  

3. Make sure your outside marketing efforts are compliant and seek experienced legal counsel to review arrangements to ensure that anti-kickback laws are not violated.  

If you have questions or wish to discuss any of the above topics, please contact Edgar Bueno ([email protected]) or Matt Wilmot ([email protected]) at HunterMaclean (912)236.0261.