Dental Providers Recent Targets of Government Enforcement Actions
July 6, 2022 | Sherrard Roe Voigt & Harbison Blog I Christopher C. Sabis
Healthcare is the primary target of federal and state governments when it comes to criminal and civil enforcement actions. From fraud and abuse allegations to prescription drug distribution, it is common to see headlines about healthcare providers who have caught the eye of government agencies and prosecutors. But within the healthcare industry, some sectors are considered bigger targets than others – hospitals, pathology labs, and durable medical equipment (DME) companies, for example, are common marks.
One sector not thought of as susceptible to government enforcement is dental care. It makes sense – Medicare does not cover routine dental care, and it is excluded from many Medicaid programs, though some dental services are covered for military personnel and their families through TRICARE. Without a direct hook into Medicare and Medicaid funds, it is not surprising that the dental care sector might be perceived as a government afterthought.
But dental providers are not immune from government scrutiny, and dental practices need to be alert to compliance issues. Two recent government actions in the region highlight these concerns – one involving allegations of fraud and the other allegations of illegal opioid distribution.
I have written about the first case before, though not really from a dental perspective. In October 2021, a judge in the Middle District of Tennessee ruled that the federal Anti-Kickback Statute can apply, through the Tennessee Medicaid False Claims Act, to dental services paid for by long-term care residents on Medicaid as incurred medical expenses (IMEs) using their own funds. The court denied a motion to dismiss the State of Tennessee’s claims even though TennCare openly acknowledges that it does not cover routine dental care. You can read about the details of the Care Services Management case in my prior blog linked above, but the bottom line is that it should remind dental providers that they may not be shielded from federal or state government scrutiny, even if they do not submit claims to government healthcare programs.
A more recent case serves as a warning that dentists are also subject to criminal scrutiny, particularly related to prescribing practices. In May, the Department of Justice announced a coordinated enforcement action against 12 medical professionals involving allegations of illegal opioid distribution. Among the targets is a Kentucky dentist who allegedly “issued three opioid prescriptions to a 24-year-old patient in a five-day period.” The patient then died of a drug overdose. The dentist is facing jail time.
Illegal opioid distribution may seem like an extreme case, but these two matters should serve as reminders and warnings. Government investigators and prosecutors have access to significant data – even outside the Medicare program – and whistleblowers and complainants who can alert them to problematic conduct. Moreover, courts can take an expansive view of fraud enforcement statutes and regulations.
Sherrard Roe launched a Dentist, Veterinarian & Optometrist practice focused on the corporate and transactional issues these healthcare providers regularly encounter. We can combine that expertise with the knowledge and experience of our Government Compliance & Investigations practice to help these providers, particularly dentists, who face government inquiries or wish to review their compliance practices before trouble arises.
We continue to monitor developments in the False Claims Act and government investigations space, as well as in dental, veterinarian, and optometry practices. Subscribe to the Sherrard Roe blog and follow us on LinkedIn for future updates. Contact the lawyers in our Government Compliance & Investigations or Healthcare groups and the Dentist, Veterinarian & Optometrist practice with any questions or concerns.
Chris Sabis is a member of Sherrard Roe and healthcare and procurement fraud lawyer specializing in Government Compliance and Investigations, Healthcare, and Litigation. Cornell Kennedy is a member specializing in Healthcare, and specifically dental, veterinarian & optometry practices.
