The Massachusetts Attorney General’s Office announced they had reached a $3.5 million settlement with Aspen Dental Management Inc. (ADMI), for alleged deceptive advertising, on January 5, 2023. The latest consent agreement for ADMI follows upon a similar and earlier agreement from 2014, which the Commonwealth claims ADMI also violated.
The consent judgement stipulates ADMI pay the Commonwealth $2.75 million for the costs of investigation and litigation. Of that sum, $2.5 million will go toward the Massachusetts’ General Fund and $250,000 will go to a consumer relief fund. In addition, the judgement orders ADMI make payments totaling minimally $750,000 directly to patients, who may have sustained damages.
No ceiling amount was placed on moneys refunded to patients for alleged violations by ADMI.
The consent judgement also placed injunctions upon ADMI’s operations in Massachusetts. Advertisements are prohibited from stating dental services are free, unless such is the case for all patients “without exception or limitation,” unless “the advertisement clearly and conspicuously discloses any exceptions, reductions, and/or limitations on the offer.”
Advertisements for dentures must stipulate if the fee proffered is “per arch” or for a complete set of upper and lower dentures. Money back guarantees must be fully transparent as to what is offered. Advertisements stipulating “no hidden fees” and “no surprises” are enjoined without a full disclosure and display of any reasonably foreseeable additional fees.
One particular point highlighted by the attorney general’s office was their claim of false and deceptive advertising by Aspen Dental clinics by promoting they accept all insurance. In fact, MassHealth, which manages dental Medicaid in Massachusetts, is not accepted by ADMI. ADMI will be enjoined from such future advertising claims, without noting this exception.
ADMI will no longer be permitted “communicating or threatening to communicate to any person any information about a debt which is known to ADMI to be false.” This includes failure to communicate with collection agencies that a debt is disputed and “forwarding debts to collection agencies for balances not actually owed, such as for services advertised as free.”
One particular stipulated enjoinment reads, “Offering or providing training to any Massachusetts practice to engage in, or facilitating any communication that an oral cancer screening adjunct is recommended or “recognized” by the American Dental Association or ADA.” This particular service is too often a lucrative profit center based upon generating fear upon the public, which has limited clinical value.
In fact, the ADA recommends evaluation of oral lesions as a routine part of an intraoral examination. The gold standard for suspect lesions is biopsy. The ADA’s expert panel concluded “that no available adjuncts demonstrated sufficient diagnostic test accuracy to support their routine use as triage tools during the evaluation of lesions in the oral cavity. For patients seeking care for suspicious lesions, immediate performance of a biopsy or referral to a specialist remains the single most important recommendation for clinical practice.”
Generation of clinic production income by routine utilization of oral cancer screening adjuncts is not only unethical but may also represent consumer fraud. Any suspicious oral lesion should optimally be biopsied or referred to a specialist for examination and possible treatment.
This represents the second consent agreement between ADMI and the Massachusetts Attorney General’s Office. An earlier analysis of the Massachusetts’ Attorney General’s allegations of ADMI’s bait-and-switch marketing tactics covers extensive details of alleged violations to the Commonwealth’s Consumer Protection Act.
In the December 2021 complaint filed against ADMI, former Attorney General Maura Healey and today, Governor, listed in Factual Allegations of the pleading, far more onerous claims than the limited damages specified for remedy. Allegations clearly cite ADMI is engaged in the unlicensed and unlawful practice of dentistry.
“ADMI is in actuality more of a franchisor, co-owner, or joint venturer with respect to individual practices. Under its various agreements with the practices, ADMI is not only reimbursed for its services and expenditures, as one might expect from a dental services organization, but is entitled to receive 45–50% of net revenue of each PC, as one might expect of a franchisor, co-owner or joint venturer.”
This latest of two settlements in Massachusetts with ADMI follows on the heels of a 2010 agreement with the Pennsylvania Attorney General’s Office, a 2015 agreement with the New York Attorney General’s Office, and another in 2015 with the Indiana Attorney General’s Office.
New York’s Attorney General settlement announcement mirrored much found in the 2021 pleading in Massachusetts.
“The investigation revealed that Aspen Dental did not merely provide arms-length, back-end business, and administrative support to independent dental practices. Rather, Aspen Dental Management has developed what amounts to a chain of dental practices technically owned by individual dentists but which, in violation of New York law, were subject to extensive control by Aspen Dental Management.”
“That control included sharing individual clinic profits with the management company and the marketing by the management company under the shared Aspen Dental trade name. Through an array of business practices, Aspen Dental Management routinely makes business decisions for the clinics that directly impacted patient care. Those practices included incentivizing and otherwise pressuring staff to increase sales of dental services and products, implementing revenue-oriented patient scheduling systems, and hiring and oversight of clinical staff, including associate dentists and dental hygienists.”
“The Attorney General’s investigation showed that Aspen Dental Management dictated the dental practices’ care of patients, by, for example, sending “Hygiene Service Announcements” to dental hygienists, which directed the hygienists to sell more products and services to patients, and training office managers (non-licensed/non-clinical individuals responsible for managing an office’s overall operations) on how to talk to patients about their treatment plans and assist them in making decisions about treatment alternatives.”
“The investigation showed that Aspen Dental Management exercised undue control over the clinic’s finances by controlling substantially all of the dental practices’ bank accounts through a single consolidated account to which the clinic owners themselves did not have access. Aspen Dental Management took a pre-set percentage of each dental office’s monthly gross profit, an arrangement prohibited under New York law, and which created a financial incentive for Aspen Dental Management to pressure staff in the dental offices to generate revenue.”
“Aspen Dental Management also subjected the dental practices to non-competition and non-solicitation agreements that effectively prevent the practices from competing with any other dental practice affiliated with Aspen Dental Management, regardless of location.”
At the onset of the lawsuit filed in 2021 by the Commonwealth of Massachusetts against ADMI, Steve Nolen, senior vice president for communications and social media at The Aspen Group (TAG) said, “We will definitely be fighting this.”
“Sadly, the Massachusetts Attorney General has brought a lawsuit based on overblown rhetoric that’s inconsistent with its own actions. The Attorney General is relying on old information gathered during the course of an investigation that’s now lasted for more than 5-years. They try to make up in sound and fury what the charges lack in merit. The approach is obviously designed to grab headlines. Not surprisingly, we intend to fight this case.”
“We have been cooperating with the AG’s office since the beginning. We’ve not only responded to their massive demands, but most, if not all of the concerns raised by the AG’s office that we’ve known about were addressed long ago, whether we agreed with them or not. In fact, a judge observed on the record that we acted in good faith during the AG’s multi-year investigation and declined to order sanctions against us that the AG sought. “
“Aspen Dental was founded with a mission of breaking down barriers to care. The company has worked for years in Massachusetts to lower the barriers to quality dental care in the neighborhoods that needed it most. Each independently-owned Aspen Dental-branded practice in Massachusetts serves its patients through Massachusetts-licensed dentists and other licensed healthcare professionals. They serve their communities each and every day in pursuit of that mission, including offering free care to more than 1,000 veterans through the company’s Healthy Mouth Movement.”
“We’re proud of the services we provide to support the independent practice owners in Massachusetts, enabling them to provide care for more than 200,000 patient visits each year in the state – the vast majority who are repeat customers. The thousands of patients who choose to walk into the Aspen Dental practices each day are the largest rebuke we can think of against the allegations made by the AG.”
As of the recent settlement with the Commonwealth of Massachusetts, ADMI nor TAG has yet to release a statement.
ABOUT THE AUTHOR
Dr. Michael W. Davis practices general dentistry in Santa Fe, NM. He also provides attorney clients with legal expert witness work and consultation.
Davis also currently chairs the Santa Fe District Dental Society Peer Review Committee. He can be reached at MWDavisDDS@Comcast.net.
FEATURED IMAGE CREDIT: stoatphoto/Shutterstock.com.