Oberheiden & McMurrey, LLP
Former Medicare Prosecutors & Defense Counsel
A “Notice of Intent to Exclude” is among the most serious warnings any healthcare provider can receive. Exclusion, in this context, means a prohibition from serving federally funded patients. This is particularly devastating if Medicare and Medicaid patients represent a substantial portion of a clinic’s patient population. This brief article, co-written by former Medicaid auditors and former healthcare prosecutors in charge of program exclusion, will provide important information about how and why a dentist might receive a Notice of Intent to Exclude and what the dentist can do to defend against exclusion or avoid it altogether.
Grounds for Exclusion
A Notice of Intent to Exclude may be based on a variety of justifications, but are generally fall within one or more of three general categories: engaging in improper billing practices, prescribing medically unnecessary items and services, and providing a substandard quality of care. Below is a synopsis of each of these categories, followed by common defenses. It is important to preface the following subsections with the fact that each one involves a complicated area of regulation that can be challenging for even the most experienced professionals. Therefore, dentists interested in gaining more information or faced with a Notice of Intent to Exclude should retain experienced counsel as early on in the process as possible to avoid exclusion or other penalties. Our group of former Medicare and Medicaid auditors and former healthcare prosecutors serve clients faced with such situations nationwide, with particular experience throughout the states of Michigan, Illinois, and Texas.
Improper Billing Practices
The distinction between proper and improper billing practices can be slight and pose a challenge for even the most experienced providers. This is because billing regulations and codes are lengthy and complicated. Providers, therefore, need to be vigilant in ensuring that their billing practices adhere to the most recent laws and regulations.
First, it is important for providers to know what the most common improper billing practices are, and how they might be overlooked. Examples of improper billing practices include overbilling for the services or items provided and submitting invoices with excessive error codes. Overbilling occurs when a provider, albeit mistakenly, bills for services provided under a higher code than is legitimate for the work performed. For instance, overbilling would occur if Medicaid was billed for a dentist’s time during a check-up when only the dental hygienist saw the patient. In such an instance, the provider would be susceptible to exclusion, even if the overbilling was unintentional. Oversight can be one of the ways overbilling occurs. Another way is billers and coders attempting to maximize reimbursement beyond what was actually performed in order to manifest their own productivity. Providers need to be cautious in not demanding performance at this cost. Another example of improper billing practices is excessive error codes. These may occur for a multitude of reasons including oversight, or lack of employee knowledge about what and how to bill for items and services provided. Federal investigators will look for these sorts of errors as red flags for further investigation which could result in exclusion. For example, if billing records indicate that a dentist is performing too many procedures in one day than logistically plausible or performing too many procedures on the same patient given the patient’s dental history, this could make a provider suspect, and could lead to exclusion.
Second, providers should implement and maintain a system to avoid the improper billing practices. While providers should encourage employees not to miss an opportunity to properly, and adequately bill for work performed, they should be sure that billers and coders do not attempt to inflate the bill beyond the precise work performed. Providers might consider continuing biller and coder education, and regular internal audits. These mechanisms will ensure both that the employees are kept up to date and reinforce the provider’s commitment to proper billing practices.
Medically Unnecessary Items and Services
Medically unnecessary services are a major source of Medicare and Medicaid fraud, and investigators are very vigilant in looking for dentists who profit by overprescribing tests, treatments, equipment and procedures. This justification for exclusion is one of the most complicated because of the professional judgment involved. What is or is not medically necessary, though sometimes apparent, is a medical judgment that may vary from one dentist to another. As with all healthcare professionals, dentists likely would not consider the government a better arbiter of medical necessity than themselves, but that is no defense to exclusions. Because of the medical judgment involved, investigators will often look for common trends that could suggest performance of medically unnecessary procedures. For example, the government might be more likely to further investigate, or exclude, a dentist who prescribes invasive dental surgery for a simple cavity or who performs a root canal on a child with baby teeth. Likewise, a dentist who takes x-rays more often than usual may be accused of over-utilizing the procedure in order to bill Medicare for it.
Because of dentists’ medical expertise, and the unique knowledge and trust that comes with it, the government is particularly intolerant of such trusted professionals billing for medically unnecessary items and services. Therefore, dentists should strive to avoid anything that might create even a perception of such activity. One way of avoiding such a perception is by regularly documenting in medical records, why a certain case required a less conservative approach, particularly when the items and services provided are done so in a manner that is out of the ordinary. Although this might pose an added burden for dentists, particularly those with busy practices, it can reduce the dentist’s susceptibility to exclusion and other action that the government is authorized to take.
Substandard Quality of Care
Dentists may also be excluded from Medicare and Medicaid for performing services in a manner that does not meet the standard of care demanded by industry standard and the government’s expectations of review of others in the field. Like medical necessity of items and services provided, the quality of care provided is a multi-variable consideration that can be informed greatly by each dentist’s own training and experiences. However, when a case is so obviously below an appropriate standard of care, it can lead to exclusion from federal programs. This, however, is a harsh penalty and is often reserved for the most egregious cases of substandard work product. These egregious cases might include dentists who regularly engage in inappropriate treatment protocols and exhibit poor medical decision-making. As for the other justifications of exclusion, there are some red flags that the government looks for in determining whether the standard of care was so subpar as to justify exclusion. Common red flags include regularly giving erred diagnoses of patient conditions or medically questionable methods of anesthesia used on patients. Dentists should be vigilant in avoiding these errors to avoid any question to the quality of items and services provided.
Proven Defense Strategies
With an experienced healthcare defense attorney, a Notice of Intent to Exclude may be successfully contested or even prevented in the first place. At Oberheiden & McMurrey, LLP, we benefit from the experience of former federal healthcare prosecutors and Medicaid auditors who understand the reasoning used by federal Medicare/Medicaid investigators and government attorneys. We use our behind-the-scenes knowledge of government procedures and comprehensive understanding of healthcare regulations to counsel dentists who have received Notices of Intent to Exclude or who are under investigation for healthcare fraud.
From our experience, the earlier an experienced healthcare attorney gets involved in a dentist’s case, the more likely that dentist will be to have a successful outcome. Once we intervene on a dentist’s behalf, we initiate an open dialogue with the Department of Health and Human Services (HHS) and the Office of the Inspector General (OIG). By speaking with the government investigators and prosecutors, we are able to identify the grounds for exclusion and present our explanations and defenses before formal proceedings commence.
As healthcare law specialists, we rely not only on our government background but also our wealth of experience representing other similarly situated clients in order to tailor our proven defense strategies for each individual client. We know what the government is looking for and how to best advocate each client’s case during oral presentation at the OIG. We also know when and how to engage a defense expert to rebut the government’s position.
Finally, we help many clients avoid receiving Notices of Intent to Exclude by counselling them on regulatory compliance before the government ever gets involved. One service we provide is an independent record review by our former healthcare prosecutors and former auditors. In this manner, we use our experience to uncover potential issues with billing practices and treatment protocols and help our clients correct the issues in order to prevent government action in the first place.
Experienced Healthcare Attorneys
The attorneys of Oberheiden & McMurrey, LLP have a track record of successfully defending Medicaid and Medicare providers in government audits and investigations. Former Medicaid auditors, former federal healthcare prosecutors, and well-respected healthcare fraud defense attorneys assists clients, like you, across the United States. Our three priorities in each “Notice of Intent to Remove” case are: (1) to protect your license (2) to avoid program exclusion (3) and to avoid criminal charges.
Compliance – Litigation – Defense