CDE 844

1
CDE 844 Ethical Situations

• March 2, 2004
• Sharon P. Turner, DDS, JD

2
Todays Topics

• Fraud in dental practice
• Patient abandonment in dental practice
• National Practitioner Data Base (NPDB)
• Healthcare Integrity and Protection Data Base
  (HIPDB)

3
Learning Goals

• Know the elements of fraud so as to recognize
  actions that are considered fraud in dental
  practice
• Know the elements of patient abandonment so as to
  recognize actions that are considered abandonment
  of a patient in dental practice
• Know what the NPDB is and how a dentist gets
  entered into this data bank
• Know what the HIPDB is and how a dentist gets
  entered into this data bank

4
Integration of todays topics into CD 838

• Justice from a legal perspective means the proper
  administration of laws, similar wrong behavior
  gets similar punishment, fair handling
• Justice from a bioethical perspective instructs
  that benefits and burdens ought to be distributed
  equitably, scarce resources allocated fairly, one
  should act such that no one person or group bears
  a disproportionate share of benefits or burdens
  (distributive justice)
• Justice in general is associated with moral
  rightness or goodness in human actions

5
Guiding Thoughts

• Keeping the best interest of your patient always
  in mind will serve you well
• Always ask yourself if this treatment is what you
  would want for yourself or your family
• There is honor in admitting that your outcome is
  not as desired and you want to correct the
  situation
• Ignorance of the law is NO excuse!

6
Patient Abandonment

• The intentional, unilateral, nonconsensual
  termination of a dentist/ patient relationship
  before completion of services agreed to be
  performed has occurred
• Is intentional malpractice

7
Elements of Abandonment

• Intentional
• Unilateral
• Nonconsensual
• Termination of relationship
• Prior to completion of treatment agreed to or
  follow up required after treatment
• Resulting in harm to the patient

8
Negligent Discharge

• Different from abandonment in that the decision
  to terminate care is based on failure to use due
  care in deciding that treatment or follow up is
  no longer needed by the patient
• Is negligent malpractice

9
So what is the difference?

• You may still get sued in civil court
• You may still get disciplined by the Board of
  Dentistry in an administrative proceeding
• Unlike in a negligence action where an expert
  witness is mandatory to establish breach of the
  standard of care, no expert witness is needed to
  prove abandonment
• Your malpractice insurance may not cover an
  intentional form of malpractice if you lose in
  litigation!

10
DUTIES

• PATIENT
• Cooperation
• Keep appointments
• Follow advice
• Take medication
• Pay for services

• DENTIST
• Complete treatment
• In timely fashion
• Acceptable quality
• Follow up afterwards as needed
• Refer to a specialist for treatment beyond the
  scope/skill

11
Examples of Abandonment from Actual Litigation

• Unqualified refusal to further attend to patient
• Express declaration or statement of withdrawal
• Leaving patient during or immediately after an
  operation or procedure
• Failure to attend to a patient despite a promise
  to do so
• Unexplained failure to continue attending to
  patient
• Refusal to treat a patient at a specific time or
  place
• Undertaking care that is beyond skill level and
  not rapidly placing the patient in the hands of a
  specialist

12
Dicke v. Graves668 P.2d 189 (Kan.App. 1983)

• Facts
• Mrs. Graves was a patient of Dr. Dicke from
  1974 until 1979. She had a difficult dental
  history, with complex and continuing problems.
  She had experienced complete restoration of all
  of her teeth which was complicated by TMJ
  disorders, jaw thrust, and sensitivity to
  electrolytic interactions. In 1979 she reported
  and Dr. Dicke confirmed fractures in her
  porcelain bridgework. X-rays were made and no
  other problems were disclosed.
• Two weeks later she complained of a
  toothache and Dr. Dicke noted movement of the
  bridgework and concluded there were stress
  fractures in bridge and that she would required a
  repeat complete restoration of her teeth.

13
Dicke v. GravesContinued

• Six weeks later impressions were taken to
  determine a recommended compete restorative
  treatment approach.
• Mrs. Graves continued to have discomfort.
  She and her husband made multiple telephone calls
  and hand delivered a letter seeking rapid
  commencement of treatment as she was in
  continuous discomfort. Dr. Dicke did not respond.
• One month after hand delivering the letter
  to Dr. Dicke, Mrs. Graves sought treatment with
  another dentist who made the same diagnosis as
  Dr. Dicke and immediately began the comprehensive
  treatment which was completed in December.

14
Dicke v. GravesContinued

• There was no complaint that any diagnoses
  were flawed or that any of the treatment that Dr.
  Dicke provided was deficient.
• Dr. Dicke sued Mrs. Graves (presumably for
  nonpayment of services) and she counterclaimed
  for patient abandonment.
• At the trial court level, the jury entered a
  judgment against Dr. Dicke and he appealed.

15
Dicke v. GravesContinued

• The issue which the appeals court address was
  Did Dr. Dicke withdraw from the patient dentist
  relationship?
• The court determined that Dr. Dicke was
  nondiligent in his care, that is untimely,
  delayed, inattentive all of which were if
  anything negligent BUT NOT ABANDONMENT. Therefore
  the trial court judgment was reversed.

16
Lessons from Dicke v. Graves

• Dr. Dicke was lucky that Mrs. Graves lawyer
  brought suit under the wrong cause of action and
  did not prove abandonment when negligence might
  well have been provable. You wont always be
  lucky!
• Dr. Dicke probably got into this because he sued
  Mrs. Graves for nonpayment. If you are going to
  sue for nonpayment, be sure that you have clean
  hands yourself.
• Legal cases are very fact specific. The jury or
  judge must take the unique facts in any case and
  apply the appropriate law. A small change in
  facts can render a very different outcome.

17
Lessons from Dicke v. GravesContinued

• Respond to your patients in a timely manner
• If you do not wish to continue care or feel that
  the situation is beyond your skill level, find
  another provider or a specialist to whom you can
  refer the patient in a timely manner
• Never leave town without having someone available
  to take call for you who has agreed to take call
  and having your office answering machine or
  answering service clearly instruct patients what
  steps to take should they need dental services in
  your absence

18
How do I protect myself from liability for
patient abandonment?

• Review patient duties
• If a patient is not living up to the patient
  duties and you ARE living up to yours, consider
  termination of the patient/dentist relationship
• Terminate the relationship by letter, sent by
  certified mail, return receipt requested. State
  the reason for the termination of the
  relationship. The reason cannot be a pretense
  intended to cover a discriminatory reason for
  termination of the relationship, e.g., HIV status

19
Protections from Abandonment Actions cont

• Provide a 30 day period (or whatever is
  reasonable for the situation, not less than 30
  days) during which you will be available to
  provide emergency treatment.
• Do not terminate care while a procedure is
  ongoing, even if you do not think that you will
  get paid. Finish the procedure and the required
  follow up first, then dismiss the patient.
  Special considerations for orthodontic cases!

20
Fraud in Dental Practice

• An intentional perversion of the truth for the
  purpose of inducing another in reliance upon it
  to part with some valuable thing belonging to him
  or to surrender a legal right.
• The false representation of a matter of fact by
  words or conduct, false or misleading allegations
  or concealment of that which should have been
  disclosed.

21
Elements of Fraud

• Representation of something as fact
• That is material (essential) to decision-making
  or action
• That is false
• That the presenter knows it is false
• That the presenter intends it to be acted upon
• That the person to whom the fact is represented
  does not know is false
• That the person to whom the fact is represented
  relies upon in taking action
• That the person has a right to rely upon the
  representation due to relationship
• That the actor suffers damage of a consequence of
  reliance and action upon the false information

22
Examples of Fraud in Dental Practice

• Telling an untruth to induce a patient to have a
  treatment
• Up coding a procedure, i.e. MO becomes MOD
• Billing for procedures never performed
• Billing for services not yet completed even upon
  patient request
• Overbilling/double billing (see Nov. 2004 AGD
  Impact, p. 14, Top clinician questions esthetic
  dentistry over treatment
• Dr. Gordon Christensen
• Waiver of a co-payment of deductible

23
Examples of Fraud in Dental Practice (cont)

• Charging different fees (higher) to insured
  patients than to self pay patients systematically
• Alternation and/or destruction of records
• Making false entries into records
• Providing false or purposely incomplete
  information to a licensure board, credentialing
  office or third party payer
• Billing for work done by someone else, i.e.
  attending billing for work done by resident when
  attending is not present for critical parts of
  the procedure

24
Miller v. Commonwealth of Pennsylvania, State
Dental Council(Pa.Cmwlth, 396 A. 2d 83, 1979)

• Facts
• Dr. Miller owned a sole proprietorship
  dental practice specializing in oral and
  maxillofacial surgery. He had three other oral
  surgeons working in his clinic, presumably as
  independent contractors rather than employees. An
  investigation and review conducted by
  representatives of Pennsylvania Blue Shield of
  those persons or institutions receiving more than
  10,000 in payment for oral surgery services for
  any specific year revealed numerous discrepancies
  at the Miller Clinic.

25
Miller v. CommonwealthContinued

• The insurance company reported these
  discrepancies to the Council, which issued
  citations charging the 4 surgeons with filing
  false claims in violation of the law prohibiting
  fraudulent or unlawful practices or fraudulent
  misleading or deceptive representations and
  unprofessional conduct detrimental to the public
  health, safety, morals or welfare.

26
Miller v. CommonwealthContinued

• The surgeons were sited for submitting claims to
  Blue Shield for the removal of impacted teeth,
  when, in fact, the Council found that the x-rays
  and other documents available to them indicated
  that the teeth extracted were NOT impacted. More
  than 100 such discrepancies were documented.
• Blue Shield coverage excluded coverage for oral
  surgical services related to the extraction of
  teeth other than fully or partially impacted
  teeth.

27
Miller v. CommonwealthContinued

• Each of the surgeons had executed an
  authorization agreement accepting full
  responsibility for all statements,
  representations, and certifications appearing on
  all claims submitted to Pennsylvania Blue Shield
• The surgeon who preformed the treatment was
  responsible for listing the exact operative
  procedure on the patients chart.
• After 4 days of extensive hearings, the Council
  ordered suspension of the licenses to practice of
  all 4 surgeons for 3 months for the nonowners and
  6 months for the clinic owner for fraudulent and
  unlawful practices.
• The 4 surgeons appealed the suspensions of their
  licenses. The owners appeal was handled
  separately from that of the 3 other surgeons.

28
Miller v. CommonwealthContinued

• On appeal the surgeons argued that it wasnt
  their fault, it was the clerks who processed the
  claim forms! The court responded that this
  argument seems almost ludicrous in view of the
  fact that they assumed full responsibility for
  all information submitted over their signature
  stamps.
• They also argued that they shouldnt be charged
  with knowing the claims were false. The court
  found that the practice at the clinic indicated
  at the very least a reckless ignorance and in
  fact the evidence did indicate that they had
  actual knowledge of the falsity of the claims.

29
Miller v. CommonwealthContinued

• They also argued that they didnt mean to defraud
  to which the court responded, Where the
  necessary consequence of an act is to defraud, it
  is no defense that the actor had no intention to
  cheat or defraud.
• They also argued that the Council had no
  jurisdiction of this matter since it did not
  involve a dentist/patient relationship and the
  insurance company had other remedies available to
  it to which, in a beautiful description of the
  Councils responsibility to protect the public,
  the court responded

30
Miller v. CommonwealthContinued

• we are not here dealing with a civil suit to
  enforce individual rights. Rather, we are dealing
  with an administrative agency of the sovereign
  which seeks to carry out its duty to protect the
  citizens of the Commonwealth by regulating the
  conduct of its licensees. It is the interests of
  many rather than the interests of the few which
  impels the Board.

31
Miller v. CommonwealthContinued

• The court upheld the suspensions of licenses of
  the 3 nonowners but reversed the suspension of
  Dr. Millers license because it found that there
  was insufficient evidence to show that he knew of
  the fraudulent claims and none of the claims in
  question had been signed via Dr. Millers
  signature stamp. Further, because the other
  surgeons were independent contractors and not
  employees, he could not be held responsible for
  their actions under the legal doctrine of
  respondeat superior, which would otherwise make
  the master (employer) responsible for the
  wrongdoings of his servants.

32
Lessons from Miller v. Commonwealth

• Dont up code- it is fraud
• It doesnt matter if the patients want you to or
  that they get benefit from what you do
• Dont try and blame the hired help- you are
  ultimately responsible, especially where you sign
  a contract so stating
• You must abide by all the terms of contracts that
  you sign with insurance companies
• Courts are very deferential to administrative
  agencies such as Boards of Dentistry provided
  that they have followed their own procedures. For
  example, Rules of Evidence are relaxed in terms
  of what is admissible and what is not in agency
  hearings.

33
Lessons from Miller v. Commonwealth (cont)

• Insurance companies may elect from among multiple
  possible remedies including filing complaints
  with the licensing board (administrative law),
  civil suits for refund of money obtained under
  false pretense (civil law), or, if the magnitude
  is sufficient, pursing criminal charges for fraud
  (criminal law) as a punishment and to put the
  dentist out of business!
• Penalties for fraud can be suspension or loss of
  license, fines, imprisonment

34
How bad can it get?
35
Office of the Attorney General State of
California Department of Justice

• September 22, 2004
• Attorney General Bill Lockyer files criminal
  charges This will become State v. Teo
• Central Valley Dentist and 19 others charged with
  defrauding the state Medi-Cal System of 4.5
  million by performing unnecessary dental work on
  unsuspecting patients

36
State v. Teo

• Defendant placed adds on missing children flyers
  and offered gifts or rebates to Medi-Cal
  beneficiaries who sought services through
  clinical network
• Also charged with workers compensation fraud,
  conspiracy, grand theft, child abuse, elder
  abuse, assault and intentional infliction of
  great bodily injury.

37
State v. Teo

• Dentists who participated were given kickbacks of
  25 which provided an incentive to over treat
• Dental assistants were permitted to perform
  duties not allowed under state law
• False insurance claims were filed on fabricated
  charts
• AG says these dentists put at risk the health
  and well being of hundreds of children and adults
  by performing slipshod dental services that were
  unnecessary, ignoring health problems that needed
  tending and even skimping on appropriate amounts
  of anesthesia before submitting patients to
  painful procedures. Children were forcibly
  restrained.
• Investigation was conducted by Bureau of Medi-Cal
  Fraud and Elder Abuse and assisted by the
  Department of Health Services

38
Dead men do tell tales!

• There are approximately 25 cases of dental fraud
  pending as a result of the forensic
  identification of the remains of those who were
  killed in the World Trade Center on September 11,
  2001
• This was discovered when dental records provided
  to help identify remains were examined in
  conjunction with remains.

39
In the matter of the Bar Admission of Edward
Littlejohn261 Wis.2d 183 (2003)

• Dont expect to become a licensed attorney in
  another state if you are suspended from the
  practice of dentistry for inadequate infection
  control, fraud, delivery of unnecessary dental
  services and practices beyond the scope of your
  dental license!
• It didnt work for Edward Littlejohn who was not
  able to satisfy a character and fitness
  investigation for the Bar after losing his dental
  license in Minnesota.

40
Healthcare Integrity and Protection Data Bank
(HIPDB)

• History
• The Health Insurance Portability and
  Accountability Act of 1996 mandated creation of
  HIPDB by the Secretary of the Department of
  Health and Human Services acting through the
  Office of the Inspector General.
• The legislation that set up HIPDB is Section
  1128E of the Social Security Act
• Final regulations governing HIPDB will be
  codified in the Federal Register at
• 45 CFR Part 61

41
Background for HIPDB

• Cases like Miller v. Commonwealth and State v.
  Teo REALLY DO occur casting a pall over all of us
  in the dental profession
• Health care fraud is involved in an estimated 3
  to 10 of all health care expenditures and cost
  between 30 and 100 billion in 1997

42
Purposes of HIPDB

• To help combat fraud
• To improve the quality of health care
• Accomplished by maintaining a data base of final
  adverse actions taken against health care
  practitioners, providers or suppliers
• Information from HIPDB should be used in making
  decisions regarding affiliation, certification,
  credentialing, contracting, hiring and licensure
• Prevents persons with bad actions/outcomes from
  moving to a new location and beginning practice
  without consideration of past acts/outcomes

43
Intended Use of HIPDB

• A flagging system that serves to alert users of
  the need for a more comprehensive review of a
  practitioners past actions and professional
  credentials
• Should be used in combination with other sources
  in determining whether to employ, affiliate,
  certify or license an individual

44
What gets reported to the HIPDB?

• Adverse action on practitioner licenses or
  certification due to fraud
• Denial of application for licensure or license
  renewal
• Exclusion from participation in Federal and State
  health care programs or cancellation of a health
  plan contract due to fraudulent or unprofessional
  behavior or poor quality of services
• Criminal convictions related to health care
  delivery

45
What gets reported to the HIPDB?

• Civil judgments related to health care fraud but
  not malpractice
• Injunctions ordered to stop harmful or
  unprofessional practice
• Nolo contendere (no contest) pleas to criminal
  actions involving fraud in health care practice

46
Who must report to the HIPDB?

• Eligible entities defined as
• Federal of State Government Agencies
• OR
• Health Plans

47
Who must report to the HIPDB?

• Federal or State Government Agencies
• US Dept. of Justice, e.g. FBI, US
  Attorneys, DEA
• US Dept. of Health and Human Services,
  e.g. FDA, CMS, OIG
• Federal agencies that administer or pay
  for health care, e.g. Depts. of Defense and V.A.
• Federal and State law enforcement, e.g.
  county and district attorneys and county police
  departments
• State Medicaid Fraud Control Units
• Federal or state agencies responsible for
  licensing or certifying practitioners

48
Who must report to HIPDB?

• Health Plans
• Health insurance policies
• Contract for service benefit organizations
• Membership agreement with an HMO
• An insurance company
• Medicare
• Medicaid
• Department of Defense
• Department of Veterans Affairs
• Bureau of Indian Affairs

49
Who must report to HIPDB?

• For you, the important thing to remember is that
  you as an individual practitioner are not
  required to report- if you are involved in a
  situation that requires reporting, the Board of
  Dentistry or the insurance plan will be the
  entity required to report.

50
When does a report have to be made to HIPDB?

• Within 30 calendar days of the date that the
  adverse action was taken
• Once submitted, a notice of receipt of report is
  mailed to the reporting entity and to the subject
  of the report, so you should know if your name
  has been entered into the HIPDB. Subjects are
  also given an opportunity to dispute the factual
  accuracy of the report or the reporting entitys
  eligibility to report, but only reporting
  entities can change reports. Subjects can add a
  statement to the report of no more than 2,000
  characters. There is no time frame that limits
  when a dispute must be resolved and a dispute may
  be submitted at any time, not just upon initial
  notification.

51
When does a report have to be made to the HIPDB?
Cont

• Report subjects may file a Notice of Appeal when
  there is an appeal of the adverse action pending

52
Can I find out if I have a file in the HIPDB?

• Yes, you can query the HIPDB to see if there is
  any information about you there. There is a fee
  to do so.
• Some insurance plans and state licensing boards
  may require that you query and provide a copy of
  the result to them before participation in the
  plan or issuance of a license. There is no law
  mandating that you do so, but you will not get to
  participate in the plan or get a license if you
  do not!

53
Does the law require mandatory query by eligible
entities?

• No and this is different from the National
  Practitioner Data Base- this is why you may be
  required to provide a copy of a self query
  because then you pay for the query!

54
Requirement of Confidentiality

• Reports made to HIPDB are confidential and those
  assessing them have a duty to protect the
  confidentiality of the reports
• Patient names are not kept in the report of
  adverse actions
• HIPDB cannot be accessed by the public

55
Is there liability for those who report
practitioners to HIPDB?

• No, there is specific protection against
  liability for mandatory reporting UNLESS the
  report is knowingly false/malicious

56
National Practitioner Data Bank(NPDB)

• History
• Established through Title IV of Public Law
  99-660 in the Health Care Quality Improvement Act
  of 1986

57
Purpose of NPDB

• A flagging system to facilitate a comprehensive
  review of health care practitioners professional
  credentials
• Acts as a clearing house of information relating
  to medical malpractice payments, adverse actions
  taken against the licenses, clinical privileges,
  professional society memberships of dentists,
  physicians and other licensed health care
  practitioners
• May inhibit movement from one jurisdiction to
  another of a practitioner who has significant
  malpractice history or has been deemed
  unprofessional

58
What gets reported to the NPDB?

• Medical malpractice payments, either settlements
  out of court or court awarded damages as the
  result of lose of civil litigation. (Report
  within 30 days)
• Adverse licensure actions such as fines,
  reprimand, probation suspension, revocation, non
  renewal, voluntary surrender while under
  investigation, or action taken by the Board of
  one state in response to disciplinary action
  related to professional competence by another
  state. (Report within 30 days)

59
What gets reported to the NPDB?Cont

• Adverse clinical privileges actions that affect
  practice privileges for 30 days or more. (Report
  within 15 days)
• Adverse professional society membership actions
  based on professional competence or professional
  conduct which affects or could adversely affect
  the health or welfare of a patient. (Report
  within 15 days)
• Exclusion from Medicare and Medicaid programs

60
Who has to report to the NPDB?

• Insurance companies paying settlements or
  judgments
• Licensing boards
• Hospitals or other health care entities that
  grant privileges
• Professional societies

61
Penalties for failure to report

• Insurance companies 11,000 for each payment not
  reported
• Licensing boards correct the action or HHS
  designates another entity for reporting to NPDB
• Hospitals and other entities Professional
  Societies Publication of noncompliance in
  Federal Register and loss of Title IV immunity
  for professional review activities for 3 years

62
Significance of Loss of Title IV Immunity

• Title IV immunity permits internal peer review
  processes to be held private and not subject to
  discovery in litigation.
• The rationale for this is that the intention of
  peer review is to improve the quality of care at
  the institution and if this information were
  discoverable, it would not be freely disclosed
  and the quality of patient care would suffer.

63
Who queries the NPBD?

• Licensing boards MAY before issuing new or
  renewed licenses
• Hospitals MUST prior to granting privileges to
  dentists or physicians and every two years
  thereafter
• Other health care entities MAY query prior to
  employing or signing agreements with providers
• Professional societies MAY query prior to
  granting membership
• An individual provider MAY query at any time, a
  fee is required
• Insurance providers MAY NOT query
• The public MAY NOT QUERY

64
Confidentiality and Protection of Liability for
Reporting to NPDB and Notification if a Report
Has Been Filed

• These are the same as for HIPDB

65
Other facts of interest about the NPDB

• Students are not reportable as they are always
  functioning under the license of a supervising
  faculty who may be reported for actions which
  occurred during supervision of a student provider
• For the reporting requirement to be triggered for
  medical malpractice payments, there has to be a
  written complaint demanding money. This can be a
  formal law suit or simply a letter. Oral
  complaints that are resolved by payment need not
  be reported.
• If the insurance company pays a settlement with
  which you disagree, you are still reported to the
  NPDB. Check the terms of your malpractice
  insurance to be certain that you have the right
  to the final determination of settlement if you
  have that choice.

66
Other interesting facts about NPDB Cont

• Individuals are not required to report on
  payments in their own behalf as of 1993, as a
  result of a decision of the District of Columbia
  Federal Circuit Court of Appeals
• If payments are made by a practitioner himself or
  herself from personal resources, there is no
  reporting requirement.
• Only monetary payments need be reported. Waiver
  of payment or debt as a settlement device does
  not require a report.
• There is no lower limit of the payment that
  triggers the reporting requirement.

67
Refund offered due to Money Back Guarantee

• Never make money back guarantees! Dentistry is a
  professional service, not the sale of goods. You
  can stand behind your work without doing so this
  explicitly.
• When you make a guarantee, you have opened
  yourself to liability under contract theories in
  addition to traditional tort theories, which is
  where malpractice suits are classified
• If you do this, you may have to report any
  refunds made under this policy.

68
Overlap Between HIPDB and NPDB

• Relates to adverse actions against licenses
• Both were meant to track practitioners, (and
  providers and suppliers in the case of HIPDB) who
  have run into problems in practice
• Both impact geographic mobility of providers
• HIPDB- think FRAUD
• NPBD- think MALPRACTICE

69
Take Home Messages

• Treat your patients well and be loyal to their
  relationship with you
• Do not engage in falsification of claims or false
  representations to patients
• Remember that dentistry is a caring health care
  profession bound by a professional oath to put
  our patients interest above our own
• We are morally, ethically, professionally and
  legally bound to integrity and good treatment in
  our relationships with our patients.

70
If you follow these tenets, the chance that you
will be sued or have your name entered into a
data bank are slim.