Senator Charles Grassley (R-Iowa), the chair of the Senate Judiciary Committee, recently sent a letter to United States Attorney General Loretta Lynch asking her to detail the Department of Justice’s investigation and enforcement efforts with regard to Medicaid dental fraud. His letter makes specific reference to the HHS-OIG reports on “Questionable Billing for Medicaid Pediatric Dental Services.” Sen. Grassley has for a number of years taken an interest in alleged dental Medicaid overutilization and overbilling. In 2013, he released (along with Sen. Max Baucus) a joint report on the corporate practice of dentistry in the Medicaid program, addressing their investigation of some dental support organizations.
As we’ve already highlighted, OIG has released these state-level reports for Louisiana, Indiana, New York and California, and plans to release more. Until now, no apparent overt action on the investigation and enforcement recommendations in these reports seemed to have been taken. With the attention from Sen. Grassley that appears set to change. Indeed, in his letter, Sen. Grassley specifically asks DOJ to detail its plan to “address the findings by HHS OIG that indicate healthcare fraud in the context of dental procedures provided to children on Medicaid.”
So what does this all mean? First, DOJ is likely to take a harder look at cases already in the pipeline that allege pediatric dental Medicaid fraud or abuse, including qui tam actions filed under the False Claims Act as well as self-initiated investigations. In short, providers already under scrutiny can expect that scrutiny to continue and potentially expand.
Second, DOJ may start initiating investigations based on the findings of these OIG reports. Providers in Indiana, Louisiana, New York, California, and any future states addressed by these OIG reports may see an uptick in enforcement activity. The OIG’s state reports explicitly acknowledge that they are based on data analysis alone, so the first sign of enforcement activity would likely take the form of a subpoena, Civil Investigative Demand or other official request for patient medical records (particularly with regard to the procedures outlined in the reports, including fillings, extractions, stainless steel crowns and pulpotomies) that could be used to confirm any data analysis that’s been undertaken.
While the majority of enforcement is likely to focus on civil claims, criminal scrutiny can’t be ruled out given DOJ’s renewed focus on investigating and prosecuting criminal healthcare fraud. In either case, however, dental providers, particularly those who are part of a dental management organization, should pay close attention to developments in this area.