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Medical Billing Fraud Allegations Related to Sleep Apnea Implant Therapy

It has been more than 15 years since the U.S. Food and Drug Administration (FDA) first approved implant therapy as an alternative to continuous positive air pressure (CPAP) machines for the treatment of sleep apnea. Over the past decade and a half, this implant therapy, or implantable treatment, for sleep apnea, has become widely used by dentists across the country. As the prevalence of sleep apnea implant therapy has increased, so has insurance companies’ scrutiny of dentists’ billings for this relatively new service.

While some dental insurance companies provide coverage for implantable treatment for sleep apnea, others do not. Furthermore, even among the companies that provide coverage, this coverage is generally only offered when the implant procedure meets the insurer’s qualifications for a “medically necessary” form of treatment. As a result, dentists continue to face a number of challenges with regard to billing for sleep apnea implant therapy, and these challenges are increasingly resulting in allegations of medical billing fraud.

Sleep Apnea is a Potentially-Serious Medical Condition that Can Be Treated with Implant Therapy

Sleep apnea is a potentially-serious medical condition that causes an individual’s breathing to stop and start repeatedly during sleep. The most-common form of sleep apnea, obstructive sleep apnea, occurs when the throat muscles relax and block the airway. For years, CPAP machines were commonly prescribed to individuals who complained of symptoms of sleep apnea – including snoring, grogginess, and morning headaches – and this continues to be true today. However, since implant therapy was first introduced in 2004, this form of treatment has become increasingly common. There are a number of reasons why implant therapy is often preferred to use of a CPAP machine, and patients who are aware of this new option will often request it specifically as they would prefer not to adjust to sleeping with a CPAP machine on a nightly basis.

As explained by Inspire Medical Systems, Inc., manufacturer of the Inspire® brand implantable sleep apnea treatment system (which was the first medical implant for sleep apnea treatment to receive FDA approval):

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Dr. Nick Oberheiden
Dr. Nick Oberheiden

Attorney-at-Law & Founder

Amanda Marshall
Amanda Marshall

Former U.S. Attorney

Local Counsel

Lynette S. Byrd
Lynette S. Byrd

Former Federal Prosecutor

Partner

Aaron L. Wiley
Aaron L. Wiley

Former Federal Prosecutor

Local Counsel

Subodh Chandra
Subodh Chandra

Former Federal Prosecutor

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Elizabeth K. Stepp
Elizabeth K. Stepp

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Roger Bach
Roger Bach
(Non-Lawyer)

Former Special Agent, OIG

Dennis A. Wichern
Dennis A. Wichern
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Former Special Agent-in-Charge

Chris Quick
Chris Quick
(Non-Lawyer)

Former Special Agent, FBI

Kevin M. Sheridan
Kevin M. Sheridan
(Non-Lawyer)

Retired Supervisory Special Agent, FBI

Ray Yuen
Ray Yuen
(Non-Lawyer)

Former Supervisory Special Agent, FBI

Gamal Abdel-Hafiz
Gamal Abdel-Hafiz
(Non-Lawyer)

Former Supervisory Special Agent, FBI

“[The] fully implanted system . . . senses breathing patterns and delivers mild stimulation to help maintain an open airway during sleep. . . .

“The Inspire system consists of three implanted components, including a neurostimulator, a pressure sensing lead and stimulation lead, all controlled with the small handheld Inspire sleep remote. The Inspire system works completely inside your body with your natural breathing process to treat obstructive sleep apnea. While you are sleeping, Inspire delivers mild stimulation to the hypoglossal nerve, a nerve that controls the movement of the tongue and other muscles in the airway. By stimulating the nerve, the tongue and other tissues move out of the airway so you can breathe during sleep.”

Other brands of sleep apnea implant therapy systems work similarly, although each company has its own proprietary devices and software. For patients for whom sleep apnea implant therapy is effective, the implant systems offered by Inspire, LivaNova, and other companies can drastically reduce the burdens of living with their disorder. Yet, insurance companies continue to push back against dentists’ use of this alternative treatment, and dentists who have no motive other than to help their patients get better sleep are being forced to confront costly and reputation-damaging allegations of insurance fraud.

What Should You Do if Your Dental Practice’s Sleep Apnea Implant Therapy Billings are Being Audited?

If an insurance company is auditing your dental practice’s billings for sleep apnea implant therapy devices and implantation procedures, what should you do?

Facing Accusations of Medical Billing Fraud is a Serious Matter

First, you need to understand that facing accusations of medical billing fraud is a serious matter. While facing an insurance audit does not necessarily mean that you will face allegations of billing fraud, at this point you need to make the audit your top priority. By playing an active role in the audit (rather than passively waiting for the insurance company to tell you whether you owe it money), you can reduce your risk of facing serious allegations; and, if it turns out that your dental practice has improperly billed for sleep apnea implant therapy, you can proactively address the issue and mitigate the consequences of the mistakes that were made.

Not only can medical billing fraud get you into trouble with the insurance companies, but it can also lead to federal scrutiny. Insurance fraud is a federal offense, and allegations of intentionally overbilling the insurance companies can potentially lead to criminal charges. Dentists and dental practices accused of insurance fraud will often find their Medicaid, Medicare Advantage (Part C), and other federal program billings being scrutinized as well, and what started out as a “routine” re-examination of your practice’s sleep apnea implant therapy insurance billings could quickly spiral into a full-blown federal investigation targeting alleged violations of the False Claims Act, Anti-Kickback Statute, and various other federal laws.

Defending Your Dental Practice During an Audit Targeting Sleep Apnea Implant Therapy Billings

If an insurance company has informed you that it is conducting an audit of your dental practice’s sleep apnea implant therapy billings, there are some steps you should take right away. These include:

  • Collect All Relevant Patient and Billing Records – When facing an insurance audit (and the potential for a federal investigation), it is imperative that you preserve all potentially-relevant documentation. This includes (but is not necessarily limited to) patient records for all sleep apnea implant treatments and all billing records related to sleep apnea implant therapy devices and implantation services.
  • Conduct an Internal Review – If your dental practice has been improperly billing for sleep apnea implant therapy, you need to know this as soon as possible. You cannot afford to allow the insurance company to discover this first, and you cannot necessarily rely on the conclusions that the insurance company reaches during its audit. This means that you should conduct an internal review promptly; and, in order to ensure that the review is both (i) sufficiently thorough, and (ii) protected by the attorney-client privilege, you should engage outside legal counsel to conduct the review on your dental practice’s behalf.
  • Engage Legal Counsel – In addition to conducting an internal review, your dental practice’s legal counsel will be able to assist in a variety of other ways as well. Among them, your legal counsel will be able to deal with the insurance company on your behalf; and, if your attorneys are experienced in handling medical billing matters, they will be able to quickly assess the veracity of any billing fraud allegations. Engaging legal counsel now will also allow you to proactively build a defense strategy should this be necessary; and, if additional compliance measures are required, your attorneys can assist you in updating your dental practice’s billing compliance program.
  • Determine What Next Steps are Necessary – In addition to updating your dental practice’s billing compliance program, if your practice has improperly billed one or more insurance companies for sleep apnea implant therapy, additional remedial measures may be necessary as well. For example, if your practice has overbilled any insurance companies besides the one conducting the audit, then you may have a contractual obligation to self-report the mistake and issue a billing correction. However, before you voluntarily share any information or make any assumptions about what you should do next, it is absolutely imperative that you discuss the situation with an experienced medical billing fraud attorney.
  • Be Prepared to Dispute Allegations of Intentional Billing Fraud – While intentional and inadvertent billing mistakes can both have significant repercussions, the consequences of intentionally overbilling for dental implants and services can be far more severe. As a result, when dealing with the insurance company’s audit, it will be particularly important to proactively build a defense against any potential allegations of intentional billing fraud. At the same time however, you must also be cognizant of the fact that inadvertence is not a complete defense to liability.

What if You are Already Facing Allegations of Sleep Apnea Implant Therapy Billing Fraud?

So, that is what you should do if your dental practice is currently being audited by an insurance company. But, what if the audit is already complete and you are facing substantial recoupment liability as a result of overbilling for sleep apnea implant therapy?

This is a different situation entirely. While it may still be possible to mitigate your practice’s liability (and correct any flawed conclusions reached by the insurance company), at this point you are reacting rather than operating on a level playing field. You will need to conduct an internal investigation and respond to the insurance company’s payment demand quickly; and, in order to protect your practice, you should speak with an attorney right away.

Speak with a Medical Billing Fraud Attorney at Oberheiden, P.C.

If you are facing potential recoupment liability and other penalties based on allegations of improperly billing for sleep apnea implant therapy, our medical billing fraud attorneys can protect you and your dental practice. To discuss your situation in a free and confidential consultation, please call 214-692-2171 or tell us how we can help online today.

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