Misrepresentations to Consumers: A Dark Side to Dentistry

22 Feb 2018 Michael W. Davis, DDS
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This treatment plan relates to a patient “benefiting” from a discount dental plan. The x-rays demonstrate limited bone loss (not shown), which would appropriately disqualify the patient for the service of periodontal scaling and root planing (s/rp) under most insurance plans. The service of quadrant irrigation with chlorhexidine would also be disallowed because of its dubious patient benefit.8 The service of multiple treatments with localized sulcular antibiotics are presold to the patient prior to the evaluation of the impact and healing from s/rp. Because of doubtful positive outcomes, insurance companies will usually disallow this payment as well.9 The name of the DSO issuing this treatment plan has been redacted, but it operates multiple clinics in several states. These plans are fabricated by a dental hygienist in collaboration with an unlicensed office manager, without doctor involvement or approval. This treatment plan relates to a patient “benefiting” from a discount dental plan. The x-rays demonstrate limited bone loss (not shown), which would appropriately disqualify the patient for the service of periodontal scaling and root planing (s/rp) under most insurance plans. The service of quadrant irrigation with chlorhexidine would also be disallowed because of its dubious patient benefit.8 The service of multiple treatments with localized sulcular antibiotics are presold to the patient prior to the evaluation of the impact and healing from s/rp. Because of doubtful positive outcomes, insurance companies will usually disallow this payment as well.9 The name of the DSO issuing this treatment plan has been redacted, but it operates multiple clinics in several states. These plans are fabricated by a dental hygienist in collaboration with an unlicensed office manager, without doctor involvement or approval.

Unfortunate examples of dishonest outlier individuals exist within all professions. This includes law, law enforcement, medicine, education, and dentistry. These unethical parties harm not only the public welfare, but also the standing of their chosen profession. 

Attainment of a professional license requires years of specialized education, training, and advanced testing, not easily accessed by the general public. As such, great trust and responsibility is placed in the hands of all professionals.

Dental patients need to retain full confidence that their doctors hold their interests to the fore. Betrayal of that trust should merit significant discipline or even disbarment from the profession. The ADA has been a leader in espousing professional principles and codes of conduct in the best interest of the public.1

Modern Challenges

Like most professions, dentistry has faced a continual flood of dynamic influences that generate challenges in maintaining an ethical posture with patients. 

Ever increasing numbers of dentists are graduating from their respective educational programs with limited employment opportunities. Older practitioners have delayed retirement due to economic downturns, which may limit junior clinicians from entering private practice.

Student loan debt has grossly outpaced inflation, with many new graduates facing a third of a million to half a million dollars in loan repayments. Further, since this is federal loan funding, this debt can not be discharged by a bankruptcy court.

In many dental programs, up to a third of the graduating doctors are foreign nationals. These dentists cannot secure a state license without sponsorship of an employer via an H1B visa, or “green card.” Foreign doctors can potentially be placed in precarious compromises by employers, because of the leverage of their dental license. 

Indemnity insurance has all but disappeared from the dental marketplace. It’s been replaced by lower cost and lower remunerating preferred provider organizations (PPOs) and dental health maintenance organizations (DHMOs). Too often, the payouts for services under these plans are below the overhead costs of providing those clinical services ethically. This has encouraged unethical and unlawful insurance upcoding and unbundling of services.

Government sponsored dental healthcare brings forth even worse billing abuses and fraud. Fees are often a fraction of the regional usual and customary rates (UCRs) for clinical services. As more and more honorable providers get fiscally squeezed out of programs like dental Medicaid, they are replaced by dubious entities. In many states, these problematic Medicaid providers are deemed “too big to fail,” as their exclusion from government programs might collapse “access to care,” even if that care is highly questionable.

Audits reveal a propensity for gross over-treatment on children with stainless steel crowns,2 pulpotomies,2 and sealants upcoded to restorations.3 Unlicensed personnel may provide dental services.4 Government audits have demonstrated a propensity of “outlier billings” to dental Medicaid, originating from large group practices such as dental support (or service) organizations (DSOs).5 

Today’s DSOs

DSOs provide employment to many recent graduates. Formerly, many graduates would enter private practice or small group practice as associates or junior partners. Open positions serving the dental corps of our military and public health are highly competitive. Debt loads, limited employment options, and the flood of graduating doctors force numbers of young dentists into employment with the DSO industry.

DSOs present a great variety of business models and workplace environments. They can’t be lumped into a single category. Problems arise when DSOs intrude into the doctor/patient relationship, without the knowledge or consent of patients. When an unlicensed entity directs patient care, that action not only violates state statutes for the unlicensed practice of dentistry, but billing for such also may constitute consumer fraud.6 

DSOs have a primary responsibility to return profits for shareholders. Doctors have a primary responsibility to the interests of patients. When those lines get crossed, patients may get abused and cheated. 

Discount Dental Plans

Discount dental plans are not insurance vehicles. They are not subject to regulation or oversight by a state insurance commission. A statutory reserve of funding is not required to be held on a company’s balance sheet. Discount dental plans are not lawful in some states. They must be registered and face regulation in others. There is no auditing of the providers by plan administrators, as with the insurance industry. In some states, discount dental plans are totally unregulated, unlicensed, and completely operated by the whims of their administrators.

Discount dental plans originated out of a desire to help fund dental care for patients lacking dental insurance. Generally, an annual fee is paid for an individual, family, or employer discount plan. This annual fee allows beneficiaries access to discounted dental fees, but strictly limited to the company’s dental provider (individual dentist, particular DSO, dental franchise brand, etc).

Providers benefit from an upfront cash advance inflow, reduced administration overhead by not dealing with an insurance company or government program, and a stronger degree of consumer loyalty. Patients ideally benefit from lowered costs for necessary dental services. Unfortunately, these plans are too often manipulated to the disadvantage of patients (see the figure). 

Insurance companies are generally very tight with even obligated fully legitimate payments. They frequently delay and deny payments for dental care utilizing a variety of tactics. They “lose” patient radiograph copies, claiming they were never sent or received. They may deny preauthorization of a covered service based on a finding by unnamed and unlicensed personnel. In establishment of its fee schedule, the insurance company may set fees for specific services at an amount that’s low enough to discourage and dis-incentivize necessary patient care. However, administration of funding for dental treatment by the insurance industry may have its positives.

In looking after the expenditure of its money, the insurance company indirectly looks after patient spending. (Please don’t conflate this as the goodwill of the insurance industry or any genuine concern for patients. Their primary obligation is fiscal returns for their investors.) Dental services that are determined to be of limited value, unethical, or dishonest will be denied for payment. Dental services that are outside the range of covered benefits, but may be of value to patients, also will be denied. 

Unfortunately, discount dental plans may sometimes deceive and cheat patients. Treatment plans may be created by unlicensed dental office staff, and not a licensed doctor, as required by law. Doctors, especially if they are employees with limited employment options or working under a restrictive employment contract, may be impaired in advocating for their patients. The same may be true for a doctor obligated with green card visa sponsorship to an employer. A few professionals are crooks by nature. No arm twisting is required. 

Additional unnecessary services may be plugged into a treatment plan for the sole purpose of bilking patients out of their money. Patients perceive they are obtaining a bargain. In fact, they overpay, specifically because there exists no oversight or auditing of expenditures.   

Solutions

Too many doctors are financially placed between a rock and a hard place. A mountain of student loan debt is forcing too many junior colleagues into compromising positions to meet fiscal obligations. The volume of new grads seeking employment, any employment, to pay off this debt also places doctors in potentially compromising situations, and with often sketchy employers. A significant reduction of debt and a substantial reduction in the numbers of graduating dentists would contribute to more ethical treatment for patients.

Our young colleagues need mentoring after graduation within positive environments, be they military service, public health, or ethical private practice settings. They require clinics where patients’ interests come first. Their role models and managers needn’t be sharks from the world of private equity investing or hustlers gaming at consumer or Medicaid fraud.  

Professional “bad apples” demand attention from regulatory boards, with very stiff sanctions for repeat offenders. Wrist-slaps and continual dental board warnings only serve to enable and encourage habitual violators to the public welfare. The image of the dental profession suffers, while patients are abused. 

The bad apples extend beyond a minority of our colleagues to a number of corporate clinics, which engage business models injurious to the public interest. Such corporate directors and officers need the attention not only of legal civil filings, but criminal actions. Moneys paid in fines and penalties come from the pockets of their investors, so they feel little personal regulatory impact for misbehavior. A real possibility of incarceration would serve to clean the swamp of crooked charlatans within the corporate dental industry.

Collusion within the insurance industry itself needs to stop too. The insurance industry is not subject to federal antitrust statutes, like almost all other businesses. The outdated McCarran-Ferguson Act of 1945 needs to be repealed.

Our dental profession is at a crossroad. Many of our colleagues and patients are in a very dark place. Some advocate taking a neutral posture and waiting out the changes in dentistry. Others contend that “free market forces” should determine dentistry’s future. Yet sitting on one’s hands won’t accomplish the needed reforms, and so-called “free market forces” may devalue the dental profession to the disturbing level of a slimy used car lot.

References

  1. American Dental Association. Principles of Ethics and Code of Professional Conduct. November 2016. http://www.ada.org/en/about-the-ada/principles-of-ethics-code-of-professional-conduct. Accessed January 23, 2018.
  2. US Department of Justice. National dental management company pays $24 million to resolve fraud allegations [press release]. January 20, 2010. https://www.justice.gov/opa/pr/national-dental-management-company-pays-24-million-resolve-fraud-allegations. Accessed January 23, 2018. 
  3. US Attorney’s Office (Northern District of Texas). Texas dental management firm, 19 affiliated dental practices, and their owners and marketing chief agree to pay $8.45 million to resolve allegations of false Medicaid claims for pediatric dental services [press release]. January 9, 2017. https://www.justice.gov/usao-ndtx/pr/texas-dental-management-firm-19-affiliated-dental-practices-and-their-owners-and. Accessed January 23, 2018.
  4. US Attorney’s Office (District of Connecticut). Pediatric dentist pays $1.3 million to settle False Claims Act allegations. August 30, 2016. https://www.justice.gov/usao-ct/pr/pediatric-dentist-pays-13-million-settle-false-claims-act-allegations. Accessed January 23, 2018.
  5. US Department of Health and Human Services, Office of Inspector General. Questionable Billing for Medicaid Pediatric Dental Services in California. May 2015. https://oig.hhs.gov/oei/reports/oei-02-14-00480.pdf. Accessed January 23, 2018.
  6. US Fifth Circuit Court of Appeals. In the matter of OCA, Inc, formerly doing business as Orthodontic Center of America, et al. Case 07-30430. Revised December 30, 2008. http://www.ca5.uscourts.gov/opinions%5Cpub%5C07/07-30430-CV0.wpd.pdf. Accessed January 23, 2018.
  7. McCarran–Ferguson Act, 15 U.S.C. §§ 1011-1015 (1945). Wikipedia. https://en.wikipedia.org/wiki/McCarran%E2%80%93Ferguson_Act. Accessed January 23, 2018.
  8. Greenstein G; American Academy of Periodontology. Position paper: The role of supra- and subgingival irrigation in the treatment of periodontal diseases. J Periodontol. 2005;76:2015-2027. http://www.joponline.org/doi/pdf/10.1902/jop.2005.76.11.2015. Accessed January 23, 2018.
  9. American Academy of Periodontology. American Academy of Periodontology statement on local delivery of sustained or controlled release antimicrobials as adjunctive therapy in the treatment of periodontitis. J Periodontol. 2006;77:1458.

Dr. Davis practices general dentistry in Santa Fe, NM. He assists as an expert witness in dental fraud and malpractice legal cases. He currently chairs the Sante Fe District Dental Society Peer-Review Committee and serves as a state dental association member to its house of delegates. He extensively writes and lectures on related matters. He may be reached at This email address is being protected from spambots. You need JavaScript enabled to view it. or smilesofsantefe.com.

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