Posted and filed under Compliance, Dental, Fraud, FWA.

This week’s Fraud Spotlight features guest contributor Mark R. Brengelman, JD, MA. Be sure to tune into the column next week for more examples of dental fraud from real cases!

This article points out a unique aspect about dental fraud that has significant impacts on the dental office and the dentist who practices there – the investigations and actions by state dental boards.  Medicaid and insurance fraud actions can involve hundreds of thousands – or millions – of dollars in alleged wrongdoing involving hundreds of patients and thousands of procedures.  Yet it only takes one instance of dental fraud to jeopardize the dentist’s professional license to practice that has lifetime consequences.

State boards of dentistry exist in each jurisdiction with exclusive control over the license to practice dentistry held by the dentist who performs and bills for dental procedures.  State dental boards derive from the “police power” of the government to regulate for the protection of the health, welfare, safety, and morals of the public.  Kentucky’s Supreme Court opined over 100 years ago in 1911 that the police power authorized the state to prescribe qualifications for dentists and to treat dental professionals as a class of health care professionals subject to government regulation. Hodgen v. Commonwealth, 135 S.W. 311 (Ky. 1911)

State laws often have broad prohibitions making waste, fraud, and abuse subject to disciplinary action – everything from a reprimand to revocation of the license depending on the scope and severity of an individual case.  For example, some laws simply prohibit “obtaining a fee by fraud or misrepresentation.”  Both those terms have their own unique meanings in the law.  More importantly, while “fraud” is a complicated definition with many elements, it does not take very much for something merely to be misrepresented to be actionable.

Other state laws have spin-off claims related to fraud, such as prohibitions against “providing or recommending dental services without justification.”  Still other laws make preliminary steps and acts subject to disciplinary action by adding the qualifier “attempting to” so that even when Medicaid or an insurance company flags the questionable billing and stops payment for the dubious procedure, a dentist may nonetheless be guilty of only trying to commit fraud.

Health care practitioners need to know the extensive range of state licensure board powers and actions, including state boards of dentistry with jurisdiction over the dentist and any single procedure the dentist may perform and bill – or attempt to do so – that may be fraudulent.

About The Author

Mark R. Brengelman, JD, MA, practices health care law in Frankfort, Kentucky, where he is the immediate past Chair of the Health Law Section of the Kentucky Bar Association.  For fifteen years, he was the Assistant Attorney General assigned as General Counsel and Prosecuting Attorney to the Kentucky Board of Dentistry.  His e-mail is Mark@MarkRBrengelmanPLLC.attorney.