This past week attorneys for Antoine Dental Center (ADC) and those representing the Office of the Inspector General filed their closing arguments in the pending State Office of Administrative Hearings (SOAH) case. The case challenges the 100% payment hold that has been in force against ADC since April 2012. The payment hold was levied against ADC by the Office of the Inspector General based on “credible allegations of fraud.” Although a payment hold hearing is supposed to be “expedited,” this case has taken over 16 months to get to this stage, and the OIG has already withheld nearly a million dollars ($1,000,000) from ADC during that time.
The OIG, who employs its own team of lawyers in-house, first brought the case against Antoine. Later, the Texas Attorney General’s Office, who is the largest law firm in Texas with over 300 attorneys on staff, took over the case. Ultimately, the OIG and the Attorney General went out and hired Dan Hargrove of the Dallas qui tam law firm of Waters and Kraus for $250,000 to assist with the case. Mr. Hargrove wrote the brief for the OIG.
ADC’s brief was submitted by Antoine’s defense team, led by attorneys Tony Canales and Jason Ray.
The allegations against ADC are not only for credible allegations of fraud but also program violations. OIG had reviewed 63 cases which it states is a statistically valid sampling of over 6,550 ADC cases from 2008 to 2011. Based on that review, the OIG originally claimed that Antoine had committed over one hundred and forty-five (145) patient record violations, including failing to maintain at least seventy (70) dental models for patients, failing to maintain at least sixty (60) HLD score sheets, failing to provide documentation for at least twelve (12) dates of service, and providing at least five (5) billing dates of service that failed to match actual dates of services rendered. The OIG also claimed that Antoine had placed braces on over seventy (70) patients that were under 12 years old.
On the day before the trial began, the OIG tried to change its allegations, admitting that it could not credibly allege Antoine had committed 145 patient record violations; instead the OIG claimed that Antoine failed to maintain six (6) dental models for patients, failed to maintain five (5) patient HLD score sheets, failed to provide documentation for three (3) dates of services, and provided at least five (5)
billing dates of service that failed to match actual dates of services rendered. The OIG also tried to change the 70 patients who supposedly received braces to allege just 5 patients.
The OIG’s core accusation against ADC is revolves around ADC’s HLD Scoring sheets and the definition of “ectopic eruption.” On behalf of OIG, attorney Hargrove argued that the Texas Medicaid Providers Manual does not define “ectopic eruption” and that Manual’s discussion of what is considered “ectopic eruption” should not be considered a definition. He claimed dentists should have relied on textbook definitions rather than the manual, and that ADC inflated HLD score sheets to gain TMHP approval.
ADC, on the other hand, not only points out that dental Medicaid providers are supposed to be able to rely on the manual’s definition of ectopic eruption (a definition that does not appear in any textbook in the world) but that each and every case was pre-approved by the State’s private contractor, the Texas Medicaid and Health Partnership (TMHP), which had the responsibility for verifying and approving all treatment before it was given.
Further, ADC argues that the HLD scoring is essentially a professional opinion, and fraud only applies to statements made about facts; fraud cannot apply to a medical opinion. ADC also claims that the term “ectopic eruption” is a subjective definition, which is what the judge in the Harlingen Family Dentistry case found. This is plainly evidenced by the large discrepancies between the scoring done by experts. ADC argues that in an objective test the HLD scores should be the same.
The ADC brief concludes:
“One year, 5 months, and 20 days ago the OIG levied a 100% payment hold against ADC, alleging fraud and making grand claims that ADC was committing hundreds of serious program violations that imperiled the solvency of the Texas Medicaid program. When the OIG was forced to simply present its claims in a “show cause” hearing, the evidence proved, at best, no fraud and only a single type of program violation; namely, misplaced models for three patients whose quality of care is not questioned. Worse, it appears that the OIG has concocted and publicly spewed a totally unbelievable lie: providers like ADC supposedly bilked an unknowing State agency and its inept agent TMHP out of millions of dollars by putting braces on unqualified children. The truth is exactly the opposite. It is the State of Texas, not the providers, that governed every aspect of the orthodontic program and the pre-authorization process. HHSC told TMHP what to do, and TMHP did exactly what they were told to do. Anything else is an after-the-fact creation by an agency looking for a scapegoat.”
Download the ADC brief.
Download the OIG brief.