Medicaid Compliance for the Dental Professional

Welcome to the “Medicaid Compliance for the Dental Professional” presentation In a report released over 15 years ago, the Surgeon General of the United States defined poor oral health as more than the loss of teeth. It can lead to poor nutrition and may be associated with a range of additional conditions, including diabetes, heart and lung diseases, low birth weight, and birth defects. The American Academy of Pediatric Dentistry (AAPD) identified these same concerns and noted the ways that untreated oral health issues can adversely affect a child’s self-esteem and therefore their participation in educational and social activities. Given the importance of oral health to overall health, Federal law requires State Medicaid programs to provide comprehensive and preventive dental services for children enrolled in Medicaid State Medicaid agencies (SMAs) and the Centers for Medicare & Medicaid Services (CMS) want dental professionals to do their best to provide quality services and submit claims supported by sufficient documentation according to Medicaid policies. This presentation addresses several ways dental professionals can help both Medicaid and themselves by adopting compliance programs suited to the needs of their practice. The presentation and other portions of the “Medicaid Compliance for the Dental Professional” Toolkit include references to resources available from CMS; the U.S. Department of Health and Human Services, Office of Inspector General (HHS-OIG); and professional organizations that can help dental professionals achieve compliance and maintain the highest quality care for their patients At the conclusion of this presentation the learner will be able to: recall how to document medical necessity for dental procedures; list at least two ways a compliance program can benefit a dental practice; recognize how to implement elements of a compliance program in a small or solo dental practice; and recall where to report suspected issues of fraud, waste, and abuse Together, Medicaid and the Children’s Health Insurance Program (CHIP) served more than 43 million children in Federal Fiscal Year 2014, representing more than one in three children in the United States Most State Medicaid programs provide emergency dental care for adults; however, less than half offer comprehensive adult dental benefits. Four States that do not offer comprehensive adult coverage allow many adult beneficiaries in managed care plans (MCPs) to obtain limited coverage as a value-added benefit. In 2014, four States either restored dental benefits for adult beneficiaries or began offering them for the first time. One State, South Carolina, increased the level of coverage, but demand is outpacing available providers in South Carolina and many other States. According to a 2016 report, 45.6 percent of children under age 21 had received a preventive dental treatment. This presentation suggests the best way to provide quality dental services to these beneficiaries is to adopt a system known as a compliance program HHS-OIG also suggests that a compliance program helps ensure patients receive high quality care and helps “speed and optimize proper payment of claims” for that care. Before we look at the elements of a compliance program, we need to look at the problem of fraud and abuse in dental services paid for by Medicaid With the increase in the number of people eligible for dental benefits under Medicaid, there are more opportunities for unscrupulous providers to steal from Medicaid and make other dental professionals look bad Medicaid needs your help to identify these providers so they can stop the fraud and provide the care beneficiaries need Medicaid abuses by dental providers have been the subject of considerable media and government attention in recent years Much of this attention has focused on the delivery of dental care to Medicaid children children by private, equity-backed dental practices In January 2010, a dental management company that provided business management and administrative services to 69 clinics nationwide entered into a $24 million settlement with HHS-OIG. The settlement was based in large part on allegations that the company had

billed Medicaid for medically unnecessary crowns, fillings, X-rays, and pulpotomies To avoid being excluded from providing services to the Medicaid program, the company agreed to a 5-year Corporate Integrity Agreement (CIA) with HHS-OIG The CIA required the company to hire external monitors to track quality of care and to avoid and promptly detect conduct similar to which HHS-OIG identified In spite of the CIA, the government continued to keep an eye on this case A 2012 article on focuses on care provided to Medicaid children through private, equity-backed dental practices or dental management companies, sometimes called dental chains. The article discusses the experience of a 4-year-old patient with special needs in Arizona who was enrolled in Medicaid when a dentist in a mobile dental clinic operated by a large national dental chain treated him The article alleges the patient underwent a painful combination of unnecessary dental treatments, including two pulpotomies and crowns, without his parents’ permission. One parent was quoted as saying, “I never gave them permission to drill into my son’s mouth They did it for profit.” The Arizona incident was a key piece of evidence in a 2013 Senate Finance Committee “Joint Staff Report on the Corporate Practice of Dentistry in the Medicaid Program.” The report concluded that three adults had held down the kicking and screaming child during the dental treatment he received. Since the time of the treatment, the patient has increasingly exhibited aggressive behavior such as kicking, punching, and screaming The report also concluded the treatment was incorrectly performed and medically unnecessary. The same committee followed up with the dental management company mentioned in the first story to see if it was complying with the CIA. The committee found that despite the CIA, company dentists in Indiana, Maryland, and Virginia had improperly restrained children and administered “incorrect amounts of anesthesia.” The committee noted that in many cases Medicaid had paid the company for treatment in the absence of any documentation to support the medical necessity of the treatment. For example, the dentist performed some pulpotomies without taking any X-rays to determine whether decay was in close proximity to the pulp The committee found the company repeatedly failed to meet its obligations under the CIA. In April 2014, HHS-OIG found that the company materially breached the CIA by failing to report serious quality of care events to HHS-OIG and State dental boards and by failing to take corrective action The company agreed to exclusion from Medicaid for five years. The committee noted the potential corrupting effect of the company’s overemphasis on the bottom line In one case, the corporate structure of a dental management company appears to have negatively influenced treatment decisions by overemphasizing bottom-line financial considerations at the expense of providing appropriate high-quality, low-cost care As a consequence, children on Medicaid are ill-served and taxpayer funds are wasted As a result of these and other similar cases identified in the Senate Finance report, HHS-OIG’s Office of Evaluations and Inspections followed up with four reports on Medicaid dental claims in Indiana, Louisiana, New York, and California HHS-OIG reports issued in 2014 indicate that concerns regarding the performance of dentists employed by dental management companies seemed to be widespread. They identified claims as questionable when they were part of a pattern showing extremely high payments per child, an extremely large number of services per child or per day, or an extremely large number of certain types of services, such as pulpotomies Each of these indicators was compared to the average for dentists in the State In each State, a disproportionate number of the providers associated with such claims worked for dental chains. HHS-OIG concluded “certain providers may be billing for services that are not medically necessary or were never provided.” A 2015 HHS-OIG report identified significant issues with Medicaid dental services in California. Of the 335 dental providers audited, half worked for corporately-owned

dental chains, two of which had already been investigated by State and Federal authorities. The report found that these 335 providers had been paid $117.5 million in 2012 for pediatric dental services Additionally, over two-thirds of the providers had claimed more than three times the average number of services for a California pediatric dentist, with the top offender averaging 862 services per day Government has not limited its scrutiny of dental care to dental management companies or the issues of unnecessary care, improper restraints, and lack of proper anesthesia Concerns about putting profit before the patient are illustrated by a case involving a Texas dentist employed by a national dental chain. The chain paid him a base salary, and management set daily production targets. He could earn bonuses by exceeding those targets. During 2008 and 2009, the dentist made false entries on patient records indicating he had provided services that he had not performed. The chain paid him $32,749 in bonuses and billed Medicaid between $120,000 and $200,000 for these services. In 2013, the dentist pleaded guilty to making a health care false statement. The Federal government did not sanction the company, because they cooperated with authorities. In 2014, the dentist was sentenced to 18 months in Federal prison. He was ordered to pay nearly $58,000 in restitution to the chain for the bonuses and the legal fees the company incurred during the investigation The American Dental Association (ADA) emphasizes that putting contract obligations above professional obligations to the patient is prohibited by the ADA Principles of Ethics and Code of Professional Conduct It is unethical and illegal to bill Medicaid for work never performed. The ADA-approved dental claim form contains the dentist’s certification that “the procedures as indicated by date are in progress…or have been completed.” Billing for items and services not rendered is not limited to dental service chains The culprits span the whole profession and other areas of health care The following examples include dentists, a periodontist, and an orthodontist A Georgia dentist pleaded guilty to Medicaid fraud in 2013 for billing the program more than $2.2 million for tooth re-implantations and complicated wound sutures that he never performed. He submitted bills from 2007 to 2009. The court sentenced the dentist to seven years in prison and three years of probation, and ordered him to return the stolen funds. In 2016, a Massachusetts dentist agreed to pay $650,000 to Massachusetts Medicaid after State officials alleged that she and her professional staff used multiple oral examination codes on the same day for the same patients. A Texas orthodontist pleaded guilty in 2013 to defrauding Medicaid by submitting almost $830,000 in claims for palatal expanders that were never provided to his patients The court sentenced him to 22 months in Federal prison. As part of his plea agreement, he agreed to forfeit bank accounts equal to the amount stolen from Medicaid. In 2013, a North Carolina dentist pleaded guilty to provider fraud. He billed Medicaid close to $115,000 for services and items not rendered, including nitrous oxide and intraoral X-rays. The court gave the dentist five years of supervised probation and ordered him to repay Medicaid. A Texas orthodontist instructed the dental assistants in his office to perform comprehensive examinations, diagnose conditions, and make treatment plans while he was in another office in another State. The dental assistants were not qualified to provide these services. The orthodontist instructed the dental assistants to file Medicaid claims for these services as if they were the provider. In 2012, the orthodontist pleaded guilty to health care fraud and in 2013, the court sentenced him to 50 months in prison. The court also ordered him to pay $1,810,960 in restitution. Some people say that telling half the truth is as bad as telling a lie In some cases of improper billing, the

dentist has rendered services but billed for the services reimbursed at a higher rate than the services performed. This is called upcoding. In 2016, a Missouri dentist pleaded guilty to prescribing $50 devices for straightening teeth but submitting claims for the devices as $695 speech-aid prostheses. He must forfeit $167,090 in fraudulent payment proceeds and could receive a sentence of up to 10 years in Federal prison without parole. In 2015, a company that operated community health centers agreed to pay $3.35 million to settle allegations that it had overbilled Medicaid for dental services between 2010 and 2014. The State Attorney General alleged the provider billed fluoride treatments as a stand-alone encounter with a dentist or hygienist, instead of as a less-expensive procedure that dental assistants could have performed as part of regular 6-month checkups Under Medicaid rules, fluoride treatments should be billed on a fee-for-service basis These encounter fees were typically $180, which was far in excess of the allowable fee for a topical fluoride treatment Billing for these appointments also exceeded the number of dental exams allowed per patient under Medicaid. Finally, the provider had no documentation of the findings of such exams or that he actually performed them. In 2011, a Connecticut pediatric dentist and her dental practice agreed to pay $212,000 to the Federal and State government to settle upcoding allegations. Specifically, investigators alleged that new patients were usually only seen by a hygienist who would recommend treatment and schedule a follow-up visit. According to the ADA, only a dentist can perform comprehensive oral examinations under code D0150 The practice allegedly billed the Connecticut Medicaid program for comprehensive oral evaluations even though a hygienist saw the patient, not the dentist. The case came about because the parent of a patient filed a whistleblower complaint. With this case in mind, a dental practice might wish to review its bills for comprehensive oral services to make sure that a dentist who is licensed and in good standing performs these services In 2013, a Missouri dentist agreed to pay more than $208,000 in restitution and penalties to Medicaid. The State contended that the dentist performed preventive resin restorations but billed Medicaid for fillings. Under Missouri Medicaid rules, the provider should have billed this type of resin restoration as a sealant. The dentist cannot bill for a filling unless they have drilled into the dentin. A person who briefly worked in one of the dentist’s clinics brought this case to the State’s attention. Upcoding can result in a criminal record, even if the amounts of money involved are small. In 2013, an Idaho dentist pleaded guilty to provider fraud for billing Medicaid 67 times for surgical extractions or post-surgical complications when each procedure was a simple extraction without complications. As a result, Medicaid overpaid $7,315. The State court sentenced the dentist to three years of probation and ordered him to repay the overpayment We have discussed some outcomes of civil and criminal cases involving Medicaid fraud, but have not focused on the laws upon which these are based It is unlikely that any dental professional listening to this presentation intends to submit false bills to Medicaid. However, some employees, associates, or competitors may be tempted to do it. Providers who become familiar with the laws against Medicaid fraud will be in a better position to deter the employees or associates from engaging in prohibited conduct and to recognize and report apparent violations. Under the criminal provisions of the False Claims Act, people who knowingly make a false claim may be subject to criminal fines up to $250,000 and imprisonment of up to five years. The civil provisions of the False Claims Act allow the government to seek penalties of up to $11,000 for each false claim, plus three times the amount of damages the government sustains because of each claim Violating the False Claims Act may lead to exclusion from Federal health care programs, including Medicaid The False Claims Act applies whether the claimant had knowledge of falsity or proceeded in deliberate ignorance or with

reckless disregard for the truth or falsity of the information in the claim. No specific intent to defraud the government is required. The Health Care Fraud Statute makes it a criminal offense to knowingly and willfully execute a scheme to defraud a health care benefit program. Health care fraud is punishable by up to 10 years imprisonment. It is also subject to criminal fines of up to $250,000 Specific intent to violate this section is not required for conviction Paying for referrals might be acceptable in some industries, but it is prohibited when Federal health care programs are involved. The Anti-Kickback Statute, found in Section 1128B(b) of the Social Security Act, prohibits the knowing and willful offer, payment, solicitation, or receipt of any remuneration, in cash or in kind, in return for referring an individual for the furnishing or arranging of any item or service for which payment may be made under a Federal health care program. Remuneration means anything of value and can include gifts, undermarket rent, or payments that are above fair market value for the services provided Criminal penalties for violation are a fine of up to $25,000 and imprisonment for up to five years. The Patient Access and Medicare Protection Act strengthens penalties for misappropriating beneficiary or provider identity information by adding subparagraph (4) to the Anti-Kickback Statute People found guilty can be fined up to $500,000 and sentenced up to 10 years in prison Under the Civil Monetary Penalties Law, found at Section 1128A(a)(7) of the Social Security Act, HHS-OIG may impose civil penalties for violating the Anti-Kickback Statute. The penalties are up to $50,000 per violation plus three times the amount of the remuneration Many States have similar laws. For example, a number of States, including California, New York, and Texas, have State false claims acts that punish false claims made to State Medicaid programs These three States also have anti-kickback statutes. A New York dentist who violated several of these laws pleaded guilty to defrauding Medicaid by billing for services not rendered and paying Medicaid patients kickbacks to come to his clinic The dentist billed for services purportedly provided by his son at a clinic when no services were provided. The dentist paid patient recruiters $25 to $30 kickbacks for bringing in Medicaid recipients for treatment. Often these recipients were recruited from homeless shelters and soup kitchens. Patients were also recruited from the sidewalk outside the office. The dentist gave the recruiters $15 to $20 to pay the recipients at the conclusion of their dental visit The court ordered the dentist to pay restitution of nearly $700,000 to the Medicaid program, sentenced him to one to three years in prison, and suspended him from the Medicaid program. HHS-OIG has identified a number of other areas of Medicaid dental billing as problematic In 2007, HHS-OIG examined payments for pediatric dental care in five States for a calendar year. The report found that 31 percent of Medicaid pediatric dental services in the five States resulted in improper payments. The Federal government made improper payments for unnecessary services and improperly billed services Of those improper payments, 89 percent were the result of insufficient documentation to show the medical necessity of the services rendered. HHS-OIG said the documentation was insufficient, not that the claims for the procedures were necessarily false. Follow-up work by HHS-OIG and the Senate Finance Committee, as well as prosecutions and settlements discussed later in this presentation, indicate that proper documentation of dental services continues to be a serious issue for Medicaid dental providers. In the 2014 and 2015 reports mentioned previously, HHS-OIG analyzed dental claims in four States Unlike the analysis done in 2007, HHS-OIG did not examine documents underlying the claims. Based on an analysis of only the claims, HHS-OIG concluded there were grounds to suspect that many claims were for services that were not rendered or were medically unnecessary In its 2007 report, HHS-OIG recommended that CMS assist States in developing educational materials for Medicaid

pediatric dental professionals that emphasize the importance of documentation. Likewise, the ADA identified a need for more compliance education for dental providers, including education on how dentists can improve their billing systems Finally, the AAPD issued a statement supporting education for dental providers on appropriate coding and billing practices, Medicaid requirements, and compliance This presentation is part of CMS’ ongoing effort to address these needs. The first principle of proper coding and billing is to bill Medicaid only for those services and items that are covered As noted by HHS-OIG, even ethical dentists and their staffs may make mistakes in billing because of inadvertence or neglect. These mistakes have a significant impact on Medicaid, and it is important for ethical providers to work together with Medicaid to reduce the error rate. Generally speaking, for a dental services bill to be properly payable by Medicaid, the service must be: covered; billed according to coding and other billing rules; documented; and medically necessary. It is important for providers to realize that even if they provide a service or an item and document and bill it correctly, Medicaid will not pay providers if the service or item falls outside the scope of Medicaid coverage The extent of Medicaid coverage of dental services for adults varies among States, from no coverage, to emergency coverage, to more extensive coverage. States vary in their coverage for children also, but all children enrolled in Medicaid are entitled to regular dental screening and medically necessary dental care under the Early and Periodic Screening, Diagnostic, and Treatment (EPSDT) benefit. Each State must adopt a periodicity schedule that sets forth certain screening services they cover and the frequency. The schedule must meet reasonable standards of dental practice as determined by the agency after consultation with recognized dental organizations involved in children’s health care. The extent of preventive care that States may cover for an individual patient may be affected by an assessment of the patient’s risk of caries under three Current Dental Terminology (CDT®) codes adopted by the ADA in 2014. These codes, D0601, D0602, and D0603, provide a standard means of reporting patient caries risk at low, medium, and high levels. CMS suggests that State Medicaid programs use these codes “to help children access dental and oral health services based on their individual levels of risk of developing dental disease, instead of assuming that all children need the same level of intervention.” Dentists who participate in Medicaid should become familiar with these codes and use them appropriately Many States place limits on the frequency of cleanings and the use of X-rays. The extent of coverage varies among States, so it is important to check with your SMA. Billing for cleanings that were allegedly too frequent led to trouble for a dental clinic in New York in 2012. The State alleged that the clinic billed for cleanings performed every three or four months. New York Medicaid rules allowed cleanings every six months unless there was a medical need for more frequent cleaning. The clinic agreed to pay the State of New York $325,000 to settle these and other allegations. Routine use of periapical X-rays led to trouble for a Massachusetts orthodontist in 2013 The State alleged the orthodontist billed for more periapical X-rays than allowed under Medicaid rules. The orthodontist agreed to pay Medicaid $800,000 and to stop being a Medicaid provider. Dental practices should be aware of possible limitations on the use of panoramic X-rays. Absent unusual circumstances, a panoramic X-ray on a 3-year-old does not comply with ADA guidelines, which provide that the first panoramic X-ray should generally be taken when the first permanent teeth erupt Thus, using panoramic X-rays on toddlers and younger children may be considered medically unnecessary Considering these cases, a practice may wish to check with its SMA on the scope of coverage for cleanings, periapical X-rays, and treatment by dental professionals other than dentists If the dentist feels that a child at elevated risk needs more frequent preventive treatments, they must document it and may need to get prior authorization from the SMA We will address new and proposed rules on billing and coverage for work of certain dental professionals other than dentists later in this presentation Some services, though covered, cannot be billed separately or “unbundled.” In January 2012, a New York dental center paid the State of New York $325,000 to settle allegations that it billed New York Medicaid for separate visits during which cleanings, X-rays, and dental examinations were performed. New York Medicaid regulations required these services be performed in one office visit and billed under one bundled code. The State alleged the center billed separately to collect more money from the Medicaid program In the case of the Massachusetts

orthodontist mentioned previously in this presentation in connection with charging for routine periapical X-rays, an additional issue was unbundling. Massachusetts Medicaid prohibited separate charges for X-rays, oral/facial images, and preorthodontic visits when a comprehensive orthodontic treatment code is billed and paid Your State may have bundling rules on the same or additional subjects, so you should check before you bill. An inaccurate bill can put the practice at risk for investigation, recoupment, and civil penalties. As pointed out by HHS-OIG, practices should take extra steps to ensure they properly code and bill claims for the services they perform Practices must properly train billers and coders to determine the specific services that were rendered by looking at the patient’s record. One thing your billing person cannot determine for you is the is the medical necessity of the service performed Sections 1902 and 1905 of the Social Security Act require that the medical assistance provided by States to children under the Medicaid program must include EPSDT services. Under EPSDT, children in Medicaid are entitled to “dental care at as early an age as necessary, needed for relief of pain and infections, restoration of teeth and maintenance of dental health.” The Social Security Act states that these services must be provided “at intervals which meet reasonable standards of dental practice, as determined by the State after consultation with recognized dental organizations involved in child health care.” Dental services must also be provided “at such other intervals, indicated as medically necessary, to determine the existence of a suspected illness or condition” and “shall at a minimum include relief of pain and infections, restoration of teeth, and maintenance of dental health.” Accordingly, the CMS Medicaid Manual requires that States “provide for medically necessary … dental services regardless of whether such services coincide with established periodicity schedules for these services.” Both the Social Security Act and the CMS Medicaid Manual use the term “medical necessity” in referring to dental services. This is also true of Medicaid regulations and many State Medicaid rules The use of the term “medical necessity” in the dental context can be confusing. When you hear the term “medical necessity” used in this way, think “dental necessity.” States are permitted to exclude coverage for dental care that is not medically necessary Accordingly, some States define medical necessity using some or all of the following terms: reasonable and necessary to protect life, prevent significant illness or disability, or alleviate severe pain; provided in accordance with generally accepted standards of medical practice; recommended by the treating licensed health care provider within the scope of practice; required in order to diagnose or treat a medical condition; safe, effective, and not experimental or investigational; or the least costly alternative adequate course of treatment, and not for the convenience of the beneficiary. The patient’s dentist generally makes the determinations of medical necessity consistent with general practice standards, specific guidelines issued by the State, and the patient’s individual treatment plan During this presentation, we are going to discuss how a compliance program can assist dental practices in ensuring they have appropriate documentation for their claims to support medical necessity and that they bill those claims appropriately Dentists, like all other providers participating in Medicaid, must “keep any records necessary to disclose the extent of the services the provider furnishes to beneficiaries.” Because of the medical necessity requirement, dentists need to document not only the extent of services but also the medical necessity of those services. The AAPD says this means dentists “must document the diagnosis” and not just the treatment. Refer to laboratory reports, radiographs, and any other diagnostic studies Failure to provide proper support led HHS-OIG to question many claims in its 2007 report. The report criticized claims for “(1) a procedure that was supported by an inconclusive (unreadable) X-ray and (2) a crown placement that was supported by a record that did not include an X-ray of the tooth.” The person reviewing the claim and supporting documentation may not be a dental professional Therefore, it is important to connect the dots and tell a story rather than simply note a diagnosis code or assume the reviewer will look at other parts of the record Let’s discuss some examples of ways documenting medical necessity can help a dental practice avoid unnecessary problems in receiving reimbursement for claims submitted. For example, if a patient has a high risk for caries that makes it medically necessary for them to have a fluoride treatment more frequently than the periodicity schedule recommends, providers should document symptoms and a diagnosis supporting the finding of an elevated risk Use the caries assessment codes discussed previously in this presentation. Another example is a claim submitted for placing a crown on a tooth that was previously sealed The government agency or third-party payer may question the medical necessity of doing

the crown. If the crown was done because the sealant did not retain and the tooth had become carious, the dental record should document the reasons for placing the crown on the tooth. If these events are well documented, problems with the claim for placing the crown can be avoided. Regardless of whether a tooth was originally sealed, whenever the treating dentist makes a medical judgment that a tooth requires a filling or a crown, the dentist should document the disease on the patient’s tooth chart, indicating the surface of the tooth that requires treatment Such documentation supports the determination of medical necessity for the treatment If the dentist finds a condition that requires additional or different treatment while performing a procedure, this finding should be documented in the treatment notes, and the tooth chart should be updated accordingly. This is a better practice than simply relying on the operatory report of the treatment or the treatment plan In its reports, HHS-OIG has expressed concern about the number of claims for pulpotomies and crowns on primary teeth If these procedures are medically necessary, the dentist should make sure the documentation supports this determination Some practices simply document the treatment recommended for each tooth on the tooth chart in the patient’s dental record. For example, a dentist might chart a pulpotomy and crown being performed on a specific tooth The reader of the record is then left to infer the presence of a disease that made the treatment necessary. This is not sufficient documentation. Instead, it is a good practice to document the disease as determined by visual or tactile clinical examination or by X-ray, specifying the diseased surfaces. An appropriate place for the documentation is in the treatment notes The record should show that the tooth was not already exfoliating. If the patient record has few or no X-rays, the file should contain documentation explaining this If the patient is too young to cooperate with diagnostic X-rays, cannot cooperate by virtue of a gag reflex, or if X-rays could not be taken for other reasons, document those reasons in the file Additionally, place alternate forms of documenting the condition of the tooth, such as photographs, in the file. Sometimes pretreatment X-rays do not accurately show the proximity of disease to the pulp On those occasions, the dentist may discover during treatment that disease is much closer to the pulp and a pulpotomy is necessary In those cases, the dentist should document this finding in both the operatory notes and the tooth chart. With this documentation, questions from a government agency or third-party payer about the medical necessity of the pulpotomy can be more easily answered Sometimes performing a pulpotomy, placing a crown, or performing another necessary dental procedure may require the provider to stabilize a pediatric patient In light of the findings of HHS-OIG and the Senate Finance Committee on the overuse and improper implementation of protective stabilization procedures, is it important that the treatment notes show the need for protective stabilization, and that the use of a papoose board or other stabilization device was carried out in accordance with AAPD guidelines The notes should also document consideration or use of alternate behavior management techniques, such as “tell-show-do” communication, voice control, nonverbal communication, positive reinforcement, distraction, parental presence and support, and use of nitrous oxide. Failure to use these techniques or to properly stabilize a patient can have serious consequences In September 2012, a Florida dentist was arrested for child neglect. In May 2013, he pleaded guilty to that charge for abusing a 4-year-old boy after the boy bit him during a dental procedure. The dentist used a drill and the palm of his hand to force a dental instrument into the child’s mouth, causing swelling, abrasion, and bruises on the boy’s lips. As part of his plea, the dentist agreed to surrender his license and not practice anywhere in the United States He was sentenced to 150 hours of community service. In a separate criminal case, the same dentist had also been arrested for Medicaid fraud in February 2013, specifically for employing a person to work outside the scope of their license He was eventually convicted separately on this charge, sentenced to five years’ probation, and ordered to repay the Medicaid program over $6,500 and pay another $3,500 for the State’s legal costs. These cases demonstrate the importance of documenting both stabilization and informed consent Dental providers should document consent to treatment in each patient’s file. As an example, the AAPD suggests the informed consent form for pediatric patients should contain the following: name and date of birth of the pediatric patient; name and relationship to the pediatric patient/legal basis allowing the person to consent on behalf of the patient; description of the procedure in simple terms; disclosure of known adverse risk(s) of the proposed treatment specific to that procedure; professionally recognized or evidence-based alternative treatment(s) to recommended therapy and risk(s); place for custodial

parent or legal guardian to indicate that all questions have been asked and adequately answered; and places for signatures of the custodial parent or legal guardian, dentist, and an office staff member as a witness Whether the consent is to treatment or to stabilization, or both, it is important to document that the consent was informed, which means the patient, or the parent or guardian, was able to understand what they were consenting to. Therefore, the consent document should be legible and written in plain English or, in the case of non-English speakers, the appropriate alternate language. In many areas, it makes sense to have informed consent forms available in both English and Spanish A good practice is to use a translation service to create simple and understandable informed consent documents in the appropriate language. Consider having your nonprofessional staff read over your consent form to check for ease of understanding Consider using models, diagrams, and photographs to make sure the treatment is understood. Make a note in the consent document of any models, diagrams, or photographs that appear in the patient’s file In addition to dental provider shortages, some dentists and States have mentioned low reimbursement rates, slow payment, cancelled appointments, and weighty administrative requirements as obstacles to provider participation in Medicaid, although State efforts to improve these conditions have shown some success This presentation is unable to solve questions of compensation and access; however, new rules effective July 5, 2016, require States to establish or broaden network adequacy standards for managed care organizations and prepaid health plan networks. Ensuring an adequate network of dental services providers is part of those standards. This presentation suggests ways that dental providers who participate in Medicaid may be able to speed the payment of claims and improve the quality of care provided to beneficiaries. According to HHS-OIG, a compliance program helps not only prevent improper claims but also streamlines business processes by avoiding unnecessary delays in claim processing and payment. A compliance program provides a system for regularly identifying areas where errors could occur and for preventing or correcting them. Such areas include lack of documentation of medical necessity, billing errors, and failure to comply with Medicaid program rules In addition to helping a dental practice fulfill its obligation to comply with Medicaid program rules, a well-thought-out and implemented compliance program can effectively provide a strong foundation for the practice’s business structure and prevent errors, as well as prevent fraud, waste, and abuse. HHS-OIG emphasizes that a compliance program also demonstrates a dental professional’s commitment to sound business and dental practice, generally increases business efficiencies, and indicates a desire to prevent future recurrence of any problems detected by the program. This demonstration can be useful if a program integrity agency or contractor audits the practice Having a compliance program is also good preparation for a forthcoming CMS requirement. Under Section 6401 of the Affordable Care Act, all Medicaid, CHIP, and Medicare providers will be required to have a compliance program that conforms to elements to be established by the Secretary of the U.S. Department of Health and Human Services. The Secretary has not yet established these elements However, notices of proposed rule-making published in 2010 and 2011, and compliance guidelines for Medicare Advantage and Part D Prescription Drug programs published in 2012, set forth seven elements for inclusion in a compliance program. These same elements are included in a voluntary compliance program guidance published by HHS-OIG. Although the title of this guidance refers to individual and small group medical practices, HHS-OIG has made clear that this guidance also applies to dental professionals Therefore, dental professionals may wish to follow this guidance in creating their own compliance programs HHS-OIG promotes the seven elements of a compliance program to encourage adherence to the payers’ required standards, whether they are government agencies or private entities. HHS-OIG’s compliance program guidance recognizes that “there is no ‘one size fits all’ compliance program,” and that not all practices have the financial or staffing resources to allow them to implement a full scale, institutionally structured compliance program. Some dental practices are part of large or nationwide organizations For these practices, a full scale, institutionally structured compliance program is appropriate. HHS-OIG also recognizes that for those dental professionals wishing to implement a compliance program, the professional must determine what to implement, when to implement, and how to implement the program. A well-thought-out, systematic approach to implementing a functioning compliance program, based on the dental professional’s findings and the needs of the practice, can prevent and reduce errors and improper conduct Monitoring is an ongoing effort “to ensure

policies and procedures are in place and are being followed.” This effort takes place on a regular basis during normal operations HHS-OIG recommends that before establishing an internal monitoring program, providers should do a baseline audit, or snapshot, of the claims development and submission process over a period of three months. The baseline audit should involve review of a random sample selection of between five and 10 Medicaid records per dental professional who bills Medicaid services. HHS-OIG’s Provider Self- Disclosure Protocol sets forth helpful details on how to collect a statistically valid random sample. Once the records are selected, compare them with the corresponding bills to make sure the services and items billed were properly documented, medically necessary, and correctly coded. A designated staff member who understands documentation and coding principles should review “bills and medical records…for compliance with applicable coding, billing, and documentation requirements.” HHS-OIG has suggested that in addition to these areas, the reviewer should check for improper inducements, kickbacks, and self-referrals For example, if the practice, or any of the practice’s dental professionals, offers any rewards, discount coupons, or special benefits to existing or new patients, there may be a violation of the Anti-Kickback Statute or anti-kickback provisions of the Civil Monetary Penalties law. Such violations can have serious consequences and should be remedied and reported immediately At the time of the baseline audit, if the practice has not already done so, it should develop and implement a solid medical record documentation policy consistent with Federal and State Medicaid regulations The professional who rendered the care should not review his or her own records Most dental professionals can read their own writing and understand the meaning of records they wrote even if the documentation is not in the record Removing bias and checking to see whether the records can stand on their own without interpretation are important if the audit is to produce meaningful results If the baseline audit identifies serious errors, it may be necessary to take corrective action. Corrective action can include employee discipline, return of overpayments to Medicaid, changes in policy, or referral to State or Federal agencies Use the results of the baseline audit to identify the areas that should be the subject of ongoing monitoring and periodic self-audits After completing the baseline audit, the practice should monitor random samples of claims and records on a regular basis for the issues identified in the baseline audit or other identified risks. In a small practice, the members may wish to rotate or divide this responsibility to avoid placing an undue burden on any individual member. Report the results of each review to a person designated by the practice who can recommend or implement a plan for corrective action. The designated person should also recommend any changes needed to make the monitoring process more effective. Ongoing monitoring involves more than claims and records As part of ongoing monitoring, a designated member of the practice should be responsible for regularly “reviewing the practice’s standards and procedures to determine if they are current and complete.” The standards should be consistent with changes in government regulations or the compendia generally relied upon by dentists and insurers. Professional organizations can provide resources to make it easier to keep updated on changes in relevant government regulations, professional standards, and billing codes For example, the procedure codes used for dental service claims are contained in the “CDT: Dental Procedure Codes,” which is annually reviewed and revised After conducting a baseline audit and implementing an ongoing monitoring program, HHS-OIG recommends performing self-audits at least once each year. HHS- OIG, AAPD, and other provider organizations recommend regular internal auditing. AAPD recommends that dental providers implement self-audit programs to eliminate fraud and abuse and to help prepare for external audits Auditing is more comprehensive than monitoring and is a more formal review based on specific standards A self-audit is an audit, examination, review, or other inspection

performed both by and within an organization. Audits are generally the most rigorous of these methods because they seek “positive assurance” that criteria were followed or that information is materially correct. HHS-OIG recommends that periodic audits focus on areas where the provider has identified a risk of noncompliance. Previous work by the HHS-OIG Office of Evaluation and Inspections identified risks that some dental professionals did not comply with “documentation, billing, and medical necessity requirements,” so self- audits should cover these areas As with the baseline audit, a designated person other than one of the licensed professionals should determine which records to review in a self-audit. Helpful details on how to collect a statistically valid random sample are set forth in HHS-OIG’s Provider Self Disclosure Protocol. The practice should use one of the standard audit tools available, or create a tool specifically for use by the practice. Internal monitoring and auditing can identify threats not only to Medicaid but also to the practice. In 2011, a former dental office manager pleaded guilty to embezzling hundreds of thousands of dollars from four different dental practices in Massachusetts She intercepted incoming checks, forged dentists’ signatures, and endorsed the checks for cash. In another case, the husband of a Maryland dentist pleaded guilty in 2012 to Medicaid fraud for submitting $156,918 in claims under the dentist’s name for services not rendered. The dentist agreed to pay $25,000 in damages. Monitoring could have stopped these schemes earlier. Dental practices that do not carefully monitor their operations are more vulnerable to damage from fraud A good monitoring program keeps abreast of recent settlements and prosecutions to see what issues government agencies are focusing on and to learn from the experiences of others. Good sources for this information are dental professional organizations and the Enforcement Actions tab on the HHS-OIG website. Presenting a claim for an item or service furnished by an unlicensed dentist can lead to assessments, civil monetary penalties, and exclusion. Designate a trustworthy person in your office to check licensure and certification upon hiring employees and to periodically require reverification to ensure continued good standing. Another risk that a practice should monitor on a regular basis is whether one of the professionals or support staff has been excluded as a Medicaid provider Whether a dental practice is large or small, if it receives government reimbursement for services, it is a good idea to scrutinize employees and contractors before hiring to determine whether they have been excluded by HHS-OIG from participation in Federal health care programs. HHS-OIG has authority to exclude individuals from participating in Federal health care programs for various reasons, including conviction of certain crimes, loss of license for reasons having to do with professional competence or financial integrity, or participation in conduct prohibited by Medicaid rules Federal health care programs will not pay for items or services when an excluded individual or entity furnishes, orders, or supplies them. If a dental practice has a staff member excluded from participation in a Federal health care program, the government will not reimburse that practice for any items or services furnished, ordered, or prescribed Furnished is a key word, it refers to items or services provided or supplied, directly or indirectly, by an excluded individual or entity. While a practice may employ an excluded individual who does not provide any items or services paid for, directly or indirectly, by Federal health care programs, practitioners should exercise caution here. A dental professional who contracts with or employs “a person that the provider knows or should know is excluded by OIG may be subject to Civil Monetary Penalty liability if the excluded person provides services payable, directly or indirectly, by a Federal health care program.” The prohibition is not limited to items or services involving direct patient care, but extends for example to filling prescriptions, providing transportation services, and performing

administrative and management services that are not separately billable Just about anyone can be excluded, including unlicensed individuals like billers or receptionists, or a licensed individual like a dentist or dental hygienist. Therefore, if any of the front office staff of a dental practice is excluded from a government health care program, all claims submitted by the practice to Medicaid may be considered overpayments subject to recoupment. This is not just a theoretical possibility. In 2012, the Connecticut Attorney General brought charges against a former Massachusetts dentist who had been permanently excluded from Federal and State health care programs, including Medicaid, in 1998 for filing false claims. The excluded dentist later recruited dentists and others, some who were aware of his exclusion, to set up and operate several dental businesses that served Medicaid patients in Connecticut and neighboring States. He also managed the offices, reviewed dental charts, and suggested treatments, even though his license had been revoked. The excluded dentist had 27 other individuals and businesses in his network who were charged along with him for receiving Federal and State health care money on behalf of an excluded provider. The excluded dentist and some of his conspirators were handed a $9.9 million settlement in 2013 Another owner was handed a $2.1 million settlement in 2015 and was excluded from Federal and State health care programs for 10 years. Three others had smaller settlements and permanent exclusions in the ongoing investigation. CMS has provided guidance to State Medicaid programs that health care professionals and provider organizations should screen their employees and contractors for exclusions on a monthly basis. It is your responsibility if you fail to notice that an excluded person is working for you A regular monitoring program is your best protection. The practice should have a process in place to ensure that employees are screened for exclusions. If you need more information about exclusions, check the Exclusions FAQ (frequently asked questions) section posted to the HHS-OIG website HHS-OIG guidance on a voluntary compliance program recommends that a practice develop written standards and procedures that address the risk areas identified in the baseline audit. In its guidance document, HHS-OIG says typical risk areas include coding and billing, medical necessity, proper documentation, and improper inducements or kickbacks. Standards could also address standing orders for dental professionals other than dentists; informed consent; protective stabilization; X-rays; anesthesia; dental records privacy; and training requirements. Standards and procedures should be consistent with government regulations and compendia that dentists and insurers generally follow This means a dental practice’s policies should refer to relevant Medicaid program requirements, including the State’s standard for medical necessity and State dental laws and regulations Contact the SMA to obtain the Medicaid program requirements that apply. Rather than write their own standards and procedures, dental practices may wish to make use of those that have been adopted by public dental practices or published by SMAs. Refer to the “Medicaid Compliance for the Dental Professional Resource Guide” on the CMS website for links to several sets of standards and procedures Written policy should also refer to the CDT code. According to the ADA, “The purpose of the CDT code is to achieve uniformity, consistency and specificity in accurately reporting dental treatment One use of the CDT code is to provide for the efficient processing of dental claims.” Many pediatric dentists refer to AAPD guidelines. If your practice does so, it would be helpful to refer to those guidelines in your practice’s written policies. We previously discussed the civil and criminal provisions of the False Claims Act. Under Federal law, any entity that receives or makes payments of $5 million annually from a State Medicaid program must provide to its employees, contractors, and agents, in the form of written policies, certain information regarding State and Federal laws on false claims and whistleblower protections and on the entity’s fraud detection and prevention policies and procedures

Thus, if your practice’s finances bring it within the scope of this requirement, written policies should make clear that employees who knowingly participate in the submission of a false claim to the SMA can subject themselves and the dental practice to a whole range of sanctions under both State and Federal law, including administrative penalties, treble damages, criminal fines, imprisonment, and exclusion from the Medicaid program Dentists do not come under this requirement simply by virtue of contracting with an entity, such as an MCO or dental services management company that does come under this requirement. Whether your practice is large or small, an effective compliance program should include a written policy of nonintimidation and nonretaliation for good-faith participation in the compliance program. This policy should include, but not be limited to, reporting potential issues, investigating issues, conducting self-evaluations, performing audits and remedial actions, and reporting to appropriate officials The written policies should not include all of these sources verbatim This could make the policy both incoherent and cumbersome. Furthermore, sources change over time, and revision is much easier if the sources are simply identified and their locations given rather than quoted extensively. Remember, it is best if requirements are provided in clear language, make the standards user friendly. Consider having administrative personnel, dental assistants, or dental hygienists serve as cold readers of policy provisions. The practice should identify a person who is responsible for keeping policies updated This person should be one of a number of compliance contacts in a small practice We have discussed the need to designate specific people in the practice responsible for monitoring and auditing and for keeping written standards and procedures updated HHS-OIG refers to these people, and those who may be assigned other duties under the compliance plan, as “compliance contacts.” It is their duty “to monitor compliance efforts and enforce practice standards.” In a solo or small group practice, the dentist or dentists most likely will not have the time to monitor all of the compliance issues associated with running an effective business. In addition, assigning all the compliance duties to one dentist may not be realistic Regardless of how compliance is carried out, it is important to identify a staff member responsible for compliance or split the compliance duties among multiple staff members. The compliance program should fully identify the responsibilities for the day-to-day compliance issues. Compliance staff should: ensure that internal monitoring and auditing continue to take place; update standards and procedures; address detected offenses promptly and take corrective action as necessary; maintain open lines of communication with staff members, patients, and the public; and publicize and enforce disciplinary standards. For example, the office manager may be responsible for internal claims audits, while the dentist may be assigned the responsibility for developing and updating policies. It is important that the assigned duties and the individuals responsible are held accountable for completing them Provide education and training for the contacts to carry out their responsibilities and for employees to be able to understand and follow practice policies HHS-OIG recommends that training for those involved in billing and coding should take place at least annually. Additionally, training should cover the compliance program and the applicable statutes and regulations. Depending on the needs of the practice, training might take the form of outside seminars, in-service training, or self-study Training content should be periodically revised and targeted to specific job duties Billers should receive more in-depth training than other employees on prohibitions against upcoding and billing for services not rendered Dental assistants and hygienists should receive in-depth training on documentation of medical necessity All members of the dental practice, whether large or small, should receive training on the necessity of preserving the confidentiality of patient information as required by applicable State and Federal law. HHS-OIG recommends maintaining documentation showing which employees have received training. You may want to consider measuring the effectiveness of the training by testing employees’

understanding. This will help ensure that your staff members understand the policies of the dental practice and can follow them A compliance program is not effective if it fails to follow up on reports of failure to comply with applicable law or practice standards and procedures. Thus, when such reports are received, the responsible compliance contact should determine whether there was a violation and, if so, recommend steps to correct the problem Depending on the violation, these steps could include the return of overpayments to Medicaid, employee discipline, changes in written standards and procedures, or referral to law enforcement authorities Whether the practice is large or small, it is important to track the promptness of the investigation and the corrective action. If the investigation is a result of a complaint, the person examining the matter may only be able to share limited information with the person who reported it At a minimum, however, the person who reported it should be informed of whether the issue is being investigated. It is crucial that the reporting is valued In investigating suspected violations, the compliance contact should review relevant documentation, which may include: claim form; tooth chart; consent form; laboratory and X-ray reports; prescriptions; and progress notes and other documentation relating to the: dental decision-making process; treatment plan; treatment, including anesthesia; and patient response to treatment. Depending on the nature of the violation, it may be important to ascertain the reason for the visit and the identity of all employees involved in rendering the service. After analyzing the relevant information, the compliance contact should make a preliminary determination whether a specific standard has been violated. The standard may be a policy of the practice, a State Medicaid rule, a State or Federal regulation or law, or a combination of any of these If there appears to have been a violation, the compliance contact should recommend corrective action If the examination shows a compliance problem, the practice should consider appropriate corrective action. Such corrective action may include returning any overpayments received because of improper billing, developing a corrective action plan, and reporting the problem to the government. Results of the investigation should be reviewed to determine whether the practice systems have weaknesses that need to be addressed Employees should work with the designated compliance person to develop changes in procedures that will correct those weaknesses. In addition to changes in procedures, corrective action can also include disciplining employees who have violated policies. If necessary, revise standards of conduct in light of the investigation, and publicize the changes in regular staff meetings Finally, if the investigation reveals a potential criminal violation, disclose it to the appropriate governmental body pursuant to your State Medicaid program requirements. It is important to note that HHS-OIG has a self-disclosure program that might be beneficial to your practice in this situation. Of course, the practice cannot respond to or correct possible violations if it does not know about them Maintaining open lines of communication is a fundamental tool for protecting the dental practice. For example, a hygienist may suspect a newly hired dentist is performing and billing for unnecessary services If this is true, this conduct can compromise patient safety and put the practice at risk for recoupment, false claims penalties, and exclusion from the Medicaid program. The practice is better off if the managing dentist or dentist who owns the practice is informed of the issue and, if necessary, corrects it before a complaint is filed with a program integrity agency. The hygienist, or any other employee or patient who has information about a possible violation, needs to know to whom within the practice they can report such issues Employees need to understand that the practice is only as strong as its weakest link, and everyone is expected to internally report any conduct that may put the practice at risk. Written policies should simply state that failure to report may subject the employee to disciplinary action, including termination. Employees need to know their employer will not retaliate against them for bringing up these issues. A dental practice may make available many different reporting mechanisms for employees to easily bring possible compliance issues to management’s attention. The practice can identify trustworthy people, such as the office manager or a dentist owner, to whom the employee will be comfortable reporting such issues. Guidance from HHS-OIG suggests that effective communication in the small practice setting can be

achieved by implementing an “open door” policy between dentists, compliance personnel, and practice employees In larger practices, management could establish a mechanism for anonymous reporting, such as a suggestion box that is checked regularly or a hotline Awareness among employees in the large dental practice can be improved by posting internal hotline numbers on bulletin boards, pointing out the location of anonymous suggestion boxes, and discussing the compliance officer’s contact information during staff meetings HHS-OIG notes, “Enforcement and disciplinary provisions are necessary to add credibility and integrity to a compliance program.” Policies designed to prevent errors and violations do not enforce themselves. Disciplinary guidelines should make clear that employees may be disciplined if they fail to perform their jobs. If everyone does what the job requires and follows the rules, the practice will be better able to meet any requirements from government or private payers. Follow up on all complaints, and impose discipline for misconduct in a timely and consistent manner. If investigating suspected fraud or abuse reveals that employees have failed to follow the written rules, take appropriate disciplinary measures. The process needs to be transparent, including publicizing disciplinary actions within the organization in the same ways the guidelines are publicized. Next, we will discuss matters that are not part of the seven elements but are important to compliance, program integrity, and the delivery of quality care First, we will discuss violations that go beyond disciplinary matters and involve fraud or abuse. These violations should be reported to law enforcement Dentists, dental staff members, patients, and outside oversight agencies all share the same goal: providing good quality dental care that is appropriately documented and paid for. Unfortunately, a small minority of dentists and others do not share this goal. HHS-OIG advises, “Just because your competitor is doing something doesn’t mean you can or should.” Instead, report it If your competitor is engaged in fraud, they may suffer serious consequences long before any criminal case is resolved. If the SMA finds an allegation of fraud to be credible, the State is required to suspend payments to the provider against whom the allegation is made This action is not dependent on a criminal conviction or even the filing of criminal charges. In New York, over 300 people complained about a chain of dentists’ offices run by a dental management company for upselling dental services, misleading customers with their advertising, and promoting medically unnecessary services. When the New York Attorney General’s office investigated the chain, they found unethical and illegal behavior, including unlicensed staff discussing plans of care with patients, offices splitting patient fees with the management company, and the management company incentivizing or pressuring staff to offer additional services that patients did not need. The dental management company paid $450,000 in civil penalties for their actions and was forced to cease acting as a dental care provider Suspected illegal practices should be reported to the SMA and State or Federal law enforcement agencies. States have various law enforcement agencies with jurisdiction over Medicaid fraud, and in all but one State, these include the Medicaid Fraud Control Unit (MFCU) MFCUs operate statewide programs for the investigation of health care providers that defraud the Medicaid program. For criminal or civil prosecution of violators, MFCUs and other State law enforcement agencies turn to local prosecutors or the State Attorney General These State prosecutors may work on cases of suspected Medicaid dental fraud on their own or in cooperation with Federal prosecutors. For example, in the case of the Missouri dentist mentioned earlier who billed simple dental devices as speech-aid prostheses, the MFCU unit of the Missouri Attorney General’s office, HHS-OIG, and the Internal Revenue Service cooperated to investigate the case, while the U.S. Attorney’s Office prosecuted the dentist. Contact information for SMAs and MFCUs is posted on the CMS website. Report all violations of professional standards to the State dental board. If a dental professional suspects a beneficiary issue, such as card sharing or eligibility fraud, they should report the issue to their SMA HHS-OIG, through its Office of Investigations, conducts criminal, civil, and administrative investigations of fraud and misconduct related to HHS programs, including Medicaid. Dental professionals can report suspect practices to HHS-OIG by calling 1-800-HHS-TIPS or by visiting the website shown on this slide HHS-OIG and the Federal Bureau of Investigation (FBI) have investigators who may be assigned to work on suspected dental fraud in the Medicaid program Federal prosecutors with the U.S. Department of Justice may prosecute dental fraud in the Medicaid

program by taking civil action, criminal action, or both. If possible, the person reporting should include a description of how the suspected violation was detected, what law or rule has been violated, and facts showing the violation, the amount of any monetary loss, and contact information. The practice should offer to forward relevant documents, such as tooth charts, progress notes, or laboratory reports if requested by the agency that receives the report. The receiving agency may request additional documents or to interview practice employees If the report results in administrative action, recovery of money, or a criminal prosecution, the compliance contact should share this information with members and staff. In addition to SMAs, MFCUs, HHS-OIG, and the FBI, other agencies play an important role in maintaining the integrity of the Medicaid program In addition to investigating and prosecuting, States and the Federal government help maintain the integrity of the Medicaid program and CHIP through external monitoring, reviewing Medicaid billings, and educating providers. The Medicaid Integrity Program, established by Section 1936 of the Social Security Act, requires these activities. CMS’ Payment Error Rate Measurement (PERM) program measures and reports improper payments in Medicaid and identifies common errors Every year, PERM identifies a random sample of claims for review. If your claims are included in this sample, you will receive a request for records related to those claims from the review contractor It is important to respond quickly to that request. CMS also contracts with a number of entities to provide certain Medicaid oversight functions. These contracting entities include two types of Medicaid Integrity Contractors (MICs): Audit and Education. The Audit MICs perform audits and identify overpayments The Education MIC creates provider education materials regarding program integrity and quality of care, like this presentation. In addition to establishing the CMS integrity contractors, the Affordable Care Act amended the Social Security Act to require CMS to expand the Recovery Audit Contractor (RAC) program to Medicaid. CMS requires each State to contract with a Medicaid RAC to audit providers and identify overpayments and underpayments As noted by AAPD, external audits are becoming increasingly common for Medicaid dental providers. These audits may be conducted by a RAC, which is a private entity that in some cases earns contingency fees for recovery of improper payments The SMA’s program integrity unit, an MCO that includes the practice in its network, HHS-OIG, or a State Comptroller or Inspector General’s office may also conduct these audits These audits can take place because of random selection for inclusion in a program of periodic audits, irregularities or high error rates detected in the practice’s claims, or issues detected in Medicaid dental claims in general HHS-OIG is undertaking “a number of audits of individual dental providers to determine whether they inappropriately billed Medicaid for pediatric dental services.” Such audits are intended to correct improper payments and strengthen the integrity of the claims process. The ADA has expressed concern regarding auditors’ scrutiny of the frequency of services, use of extrapolation, and provider liability for clerical and computer errors. AAPD has expressed concern about methods of selecting providers for audit, the qualifications of auditors, and the use of financial penalties instead of peer review when errors are found. At the same time, both the ADA and the AAPD recognize the importance of working with external auditors to help maintain the integrity of the Medicaid program. The Senate Special Committee on Aging, in a report on Medicare audits, mentioned Medicaid audits of dental providers and suggested a need for education on how to avoid payment errors and on the roles of external auditors This presentation is unable to resolve all provider concerns about external audits However, it attempts to educate dental providers about ways to improve compliance and be better prepared for an external effort The best long-term preparation for audits is to implement and maintain an effective compliance program. As discussed previously, one element is internal monitoring and auditing. The AAPD points out that internal audits can be used “to preemptively detect discrepancies before the external authorities can discover them and impose penalties.” The practice should document items that are monitored and audited and the actions taken to correct weaknesses in procedure and in the monitoring and auditing systems themselves. These measures help demonstrate the practice’s commitment to compliance with Medicaid requirements Another way to prepare for a program integrity audit is to periodically have audits performed by an outside auditor An outside auditor brings an independent perspective that can identify weaknesses not apparent to someone who works inside the practice. A final part of long-term

preparation is to designate a person in the practice as the single point of contact if a RAC or program integrity agency audits the practice Program integrity audits of providers generally commence with a written notice to the provider from the entity conducting the audit. When the practice receives a notice, it should go immediately to the designated audit contact person The practice should designate additional people, as necessary, to support the audit contact in responding. The notice will generally state why the audit is taking place and who will be performing the audit The AAPD suggests that if the notice does not specify the type and scope of the audit, the practice should contact the auditor to find out this information. The notice may also contain information on whether the work will be done on-site, off-site, or in both locations, and the expected time for completing the audit, but if this information is not included, the audit contact should ask. The contact and designated supporting staff should assemble all relevant policies and procedures and documentation of actions taken to follow up on and correct identified incidents The audit contact and supporting staff should document all auditor requests and responses. The audit will usually involve identifying and analyzing a sample of claims and supporting records to determine compliance with Medicaid requirements; determining the reason for instances of noncompliance; communicating the preliminary findings to the provider, often in a draft report; holding an exit conference to discuss proposed findings; giving the provider an opportunity to respond to the proposed findings in writing; and delivering a final report that incorporates the provider’s response. Depending on the findings, the report could lead to a demand for payment of any overpayments and notice of imposition of civil penalties After receiving the final report, the audit response team should meet to discuss items that need to be addressed Any overpayment identified by the audit should receive immediate attention The law requires, “if a person has received an overpayment, the person shall report and return the overpayment” to Federal health care programs within 60 days of the date it is identified Failure to do so may make the overpayment a false claim, which could subject the provider to serious consequences under the civil False Claims Act, including exclusion from the Medicaid program. If fraud is involved in the overpayment, the provider should consider using the Self- Disclosure Protocol established by HHS- OIG. The protocol is available on the HHS-OIG website. Regardless of whether the practice owes any overpayments or civil penalties, it should take action to correct any weaknesses identified in the report. Corrective action may include changes to policies or procedures, including procedures for internal monitoring and auditing and training for staff. The compliance contact or contacts should be assigned specific responsibilities for tracking corrective action and reporting to practice members on progress. We have discussed program integrity issues and ways dental practices can address these issues successfully All these ways can help improve patient quality of care In 2010, HHS announced its Oral Health Initiative. Two focus areas assigned to CMS were to increase access to care and eliminate oral health disparities Accordingly, CMS announced the following goals: increase the rate of children ages 1–20 enrolled in Medicaid or CHIP who receive any preventive dental service by 10 percentage points over a 5- year period; and increase the rate of children ages 6–9 enrolled in Medicaid or CHIP who receive a dental sealant on a permanent molar tooth by 10 percentage points over a 5-year period In FY 2012, 42 percent of children enrolled for at least 90 days received a preventive dental service through Medicaid or CHIP. CMS’ goal was to increase this percentage to 52 percent by FY 2015 For FY 2014, 48 percent of children received preventive services. Dentists play an important role in working with CMS to meet these goals. Dentists can help meet these goals and reach more Medicaid patients by making sure they correctly bill Medicaid for the services of other dental professionals who work under their supervision. Federal Medicaid regulations define “dental services” as “diagnostic, preventive, or corrective procedures provided by or under the supervision of a dentist in the practice of his profession.” The Center for Medicaid and CHIP Services (CMCS) has stressed, “supervision is a spectrum and includes, for example, direct, indirect, general, collaborative or public health supervision as provided in the state’s dental practice act.” Generally, services performed by dental professionals other than dentists “are considered to be ‘dental services’ if the dental professional has some sort of supervisory relationship or agreement or affiliation with a dentist.”

States may require that the services provided by other dental professionals be billed by the supervising dentist, or that the dental professionals enroll in Medicaid and directly bill under their own numbers. Dentists should contact their SMA to find out how these services should be billed in their States CMCS has recognized that one reason dentists often give for not accepting Medicaid patients is the possibility of missed appointments. Conversely, one reason families of enrolled children give for missed appointments is lack of transportation. State Medicaid programs are required to provide transportation for needed dental care. CMCS has suggested to States that their staff should provide information to patients and dental providers about the State’s Medicaid transportation policies. Dental professionals should check whether such information is available in their State and, if so, provide it to their patients. In some States, an appointment reminder service is also available. Dental professionals interested in learning about other ways the Medicaid program is promoting oral health may want to read “Keep Kids Smiling: Promoting Oral Health Through the Medicaid Benefit for Children & Adolescents,” on the Medicaid website In addition to “dental services,” Medicaid also covers “oral health services.” These are defined as “services provided by any qualified health care practitioner or by a dental professional who is neither a dentist nor providing services under the supervision of a dentist.” CMCS has clarified that these services are covered under 42 C.F.R. § 440.60, which is the regulation that addresses services other than physicians’ services that are provided by licensed practitioners. CMCS has observed that oral health services “should be readily available to enrolled children.” These services can be provided by primary care physicians or mid-level dental professionals They can include screening to determine the need to be seen by a dentist for a diagnosis and assessment to determine the need for referral for diagnosis and treatment These services can be billed under CDT codes D0190 and D0191 respectively CMCS has noted that use of these CDT codes, adopted in 2012, can “maximize the ability of all healthcare professionals, both medical and dental, operating within the scope of state practice acts, to serve Medicaid and CHIP enrollees.” CMCS has encouraged SMAs to adopt these codes “in order to expand opportunities for children to gain access to the dental delivery system.” As of 2014, at least 16 States reimbursed for these codes. Dentists who participate in Medicaid should identify medical providers and other dental professionals who perform screening and assessment and let them know of their availability to perform dental services for patients who may need a referral In addition to screening and assessment, States may also include coverage for other oral services provided by mid-level dental professionals who have no supervisory relationship to a dentist Such mid-level dental professionals, as described in the 2013 Senate Report discussed earlier, have an education and skill level that places them between dentists and dental hygienists. Mid-level providers “would be qualified and licensed to perform relatively minor, but common procedures, such as cavity fillings and simple teeth extractions.” Such new types of dental professionals include dental therapists and community dental health professionals. Their authority to perform specific services and thus qualify to receive payment from an SMA depends on State law. Obviously such mid-level providers will not be qualified to treat every condition that their Medicaid patients present and will need to know where to refer those patients for further treatment. Dentists who participate in Medicaid should identify these mid-level dental providers and let patients know they may be available to perform some basic dental services The good news is that more and more people are getting insurance coverage that includes dental services. With this coverage, however, comes additional oversight of dental practices, either through the Medicaid program or third-party billers A compliance program helps ensure patients receive high-quality and well-documented appropriate care correctly billed A compliance program is a benefit regardless of whether you are a Medicaid provider This presentation was current at the time it was published or uploaded onto the web Medicaid and Medicare policies change frequently so links to the source documents have been provided within the document for your reference This presentation was prepared as a service to the public and is not intended to grant rights or impose obligations This presentation may contain references or links to statutes, regulations, or other policy materials The information provided is only intended to be a general summary. Use of this material is voluntary. Inclusion of a link does not constitute CMS endorsement of the material We encourage readers to review the specific statutes, regulations, and other interpretive materials for a full and accurate statement

of their contents