56: Insurance Audits, Board Investigations and Criminal Matters—with Attorneys Justin Withrow and Matt Odgers

Welcome everybody to yet another episode of the Dental Boardroom podcast. I think we've got a content rich subject matter today. I'm going to introduce our guests. We actually have two guests today. But before I do, let me just reiterate a couple things to everybody about the Dental Boardroom podcast. Dental Boardroom podcast is designed to really talk about all the nonclinical aspects of dentistry, the business side of dentistry. And if you all know me and you've been listening to my podcast, you know I'm a dental CPA and a dental financial planner. And I run a company called Practice cfo, which is really outsourced CFO and strategic financial guidance for dentists throughout the country and providing accounting, tax, financial planning, business consulting and investment services all in one place to create harmony and efficiency. Thanks for letting me share that, everybody. Okay, jumping into the program today, we've got Justin Withrow with us and Matt Odgers, both esteemed attorneys, but two very different attorneys in their area of focus. Okay. First is Matt Odgers. Matt Odgers is somebody I've worked with for a long time. He's here in California and a dental transaction attorney. So most of your business ma is around representing buyers and sellers in the purchase and sale of a dental practice. And your firm is called Odgers Law.

Yep, you hit the nail on the head. So, and where we help dentists kind of go through the process of setting up their practices or purchasing and selling their practices and everything on the transactional side, we don't do any litigation or board disputes, which is how I actually initially met Justin because he steps in and takes over when a dentist gets themselves into hot water or has to navigate that side of it.

Yeah, knock on wood. Not many of my clients have been in that in those waters, but I'm sure it's bound to happen. And we have a lot of listeners beyond our clients. So this is one of those things where even if you haven't been caught up in a civil or regulatory matter, it's probably a great listen just to think preventatively about your own practice and your own profession because we're going to go over some case studies. What are some of the things that have triggered these regulatory and civilization sort of events in the life of a dentist? I think it'll be very, very helpful. So on Justin, Justin, I'm just going to share from your website really quickly, a couple paragraphs here. Justin Withrow is a partner at Flannery, Georgia. Tell me, George.

Yeah.

Yes, George Dallas, focusing his practice on complex Criminal, regulatory and civil matters at the federal, state and local levels. Justin has developed a nationwide practice representing dentists and practice groups in a variety of sensitive matters, including federal and state regulatory investigations, federal and private payer billing audits, professional licensing matters, and complex business litigation. Justin, tell us two things. What does all that mean and why did you go into it?

Yeah, so I like to describe that as I'm the guy that's the break glass in case of emergency. So, you know, anytime a practice or a provider receives a subpoena or an unannounced visit from a state or federal law enforcement agency, they receive a letter in the mail saying they've been selected for an insurance audit or a post payment review or a board matter. Those are really what I spend my time representing dentists and practices in. I've been doing that for a little over 11 years now. And it actually started when I developed a relationship with a former colleague of mine. He has since retired and he was unique because he was a former practicing dentist that hung up his white coat, if you will, and decided to become a lawyer. And so he developed a practice as a former dentist representing dentists. And through working on cases with him, his name was Frank Recker. You know, the relationship just continued to build as we worked on one case after another with each other. And then when ultimately when he decided to retire, I just continued the practice. And you know, when I decided to become a lawyer, I would have never imagined that I'd spend my days representing dentists. But I absolutely love it.

You know, I want to talk about these three areas you brought up. Audits, board investigations, and criminal matters. Let's jump right into audits and thanks for that background. How does a practice get selected? Explain what an audit is and how does a practice get selected for an audit?

Sure. So an audit is really when either a state or federal payor, so Medicare, Medicaid or a private insurance company is taking another look at claims that have been submitted and already been paid. You know, I think sometimes there's a misconception out there that, well, if I submit a claim for treatment of a patient and the insurance company pays it well, then they're acknowledging and accepting the codes of services that I put on that claim form and I can't face any further scrutiny on that submission for payment. That's actually incorrect. So within every provider agreement that a dentist signs with an insurance company, when they become an in network provider, it's a contract and so they're agreeing to comply with the terms of that agreement. Unfortunately, I come across a lot of providers that don't or haven't in quite some time reviewed what the terms and conditions of those provider agreements are and what their obligations as an in network provider are. And so they can run into issues where, you know, they're exceeding frequency limitations of a service or their documentation is insufficient, or certain services require prior authorization before the insurance company will approve them and pay them. And there's lots of conditions that a provider has to comply with and if they fail to do that or the insurance company determines that this provider from a statistical standpoint is an outlier, that's what generally will trigger an audit. And so the data analytics component is becoming more prevalent these days, both on a criminal side of things. The Department of Justice and state regulatory agencies as well as insurance companies heavily rely upon data analytics to identify those providers that are statistical outliers. And why are they a statistical outlier compared to other providers in their area. And when you have individuals who, from the insurance company standpoint, are unique from other practices in their area, that's when an insurance company will send a letter asking for certain patient charts for a particular service to make sure that what the provider is doing and what, what the insurance company is paying for is in compliance with their provider agreement.

So can you give me some examples of statistical outliers? And then Matt, I want to hear your question.

Yeah, sure. So for purposes of a statistical outlier, it's, you know, they really look at dentists who have received extremely high payments per patient or a dentist that's rendered a large number of services in a day, dentists that, you know, when comparing the frequency of a particular code in their practice, say a provider is, you know, has a Large number of 3 and 4 surface restorations compared to other practices in their area. That's when an insurance company is going to say, okay, well wait a minute, let's take a look at some charts of those patients where claims have been submitted for these services. And let's make sure that one, these services are actually being rendered and then two, that the three or four surface restoration was medically necessary.

Got it. So there's sort of data that's run at the insurance companies that will flag an anomaly and then somebody looks at it. In other words, these aren't like random audits that somebody's randomly choosing a file out of all of their providers. It's data driven, computer driven flags which are then inviting human involvement to investigate.

Yeah. And it's not to mean that if a practice is identified for an audit that they've done anything wrong with statistics, there are going to be outliers. You know, if you are a practice that is a heavy Medicaid practice in an otherwise affluent area, or you're one of the few providers in a particular area that accepts a particular type of insurance or performs a particular type of service, say root canals perhaps, then just naturally you are going to be an outlier from a statistical analysis perspective. But there is a lot of cooperation between both private insurance companies and state and federal regulatory agencies to share information in an effort to identify from a statistical standpoint those providers and those practices where it may be worth taking a further look. Not to suggest that something has been done improperly or fraudulently, but based upon the statistics, based upon the numbers, we want to make sure that there isn't something nefarious going on within that practice.

Got it. So let me ask you this. In reviewing the different provider agreements, how much variance do you see? I mean, I'd imagine that there's a big variance between some of the federal and state programs in private. But on the private side, how much variance do you see with the terms for those agreements? Are they pretty similar or are there certain providers that have very strenuous rules?

Yeah, I would say that in totality, for the most part, you know, provider agreements are fairly similar. Some companies will cover a particular service and others won't, or some will require prior authorization for a particular service, others won't. They may have different frequency limitations for certain services, but by and large, the terms are generally consistent. But that doesn't mean that because, you know, a provider is in network with two different or three different types of insurance companies that they don't need to make sure that they're complying with the terms of each because they do have variations. And if you fail to comply with those variations, you could find yourself selected for an audit. And unfortunately, if you're not complying with the terms, it will likely result in some sort of overpayment that will have to be paid back.

Okay, and then when that happens, how often are you seeing the private insurance companies when they do one of these audits? Refer that over to the state board or for criminal action, and I'd imagine it has to do with the severity of what they find. But is that a standard procedure or is it just in extreme cases?

I think that is primarily in extreme cases. I think what you're more apt to find is following an insurance audit from a private payor, if you know they're seeing some things that from their perspective, are Problematic, they could certainly elevate it and submit a complaint to the licensing board or in those instances where they believe there's criminal conduct, refer it to a state attorney general's office, or in extreme cases, hhs, oig. But I think what you're more inclined to see is termination of provider agreements where they say, you know, we've taken a look at the records that you've provided in response to the audit and we no longer think that we're a good partnership for each other and so we're going to terminate our provider agreement. That's not to say that you can't reapply in the future, but based upon what we're seeing here, you know, we don't think you're a right fit for our insured population.

Got it. So the sounds kind of like the three possibilities after or four possibilities after an audit is number one, that that everything's okay and you pass the audit free and clear. Number two is that you might have to reimburse for any overpayments that were made. Number three would be that they may terminate the provider agreement and then the last one would be they may refer it to some sort of prosecution with the state attorneys general or the board or something like that.

Does that.

I think that's a pretty good summation. Yeah, I think that's a really good summation. You know, I think unfortunately, if you provide any regulatory body or you give anyone enough time to look at patient charts and look for deficiencies, it's just inevitable that they're going to find them. It's a rare case where someone's going to undergo an audit and not have to pay something back. And it's been my experience that in most cases dentists receive a correspondence from an insurance company that they're being audited or they have a certain number of charts that are subject to review and they expect to pay something back. And that's where it's important to have certain systems in place within an office. Because I've been a part of a few different matters, some recent and then some a few years ago, where the office lacked a protocol and by having a lack of protocol that actually compounded the issues that they had with the insurance company. So let me give you an example. So I represented a practice that multi providers general dentistry practice, and they were selected for an audit from a private insurance company. Well, when the correspondence came in the mail, the front office staff got the letter, saw the letter, but didn't elevate it to the doctors right away. And so Inevitably, it fell through the cracks, papers got stacked on top of it. And generally speaking, these audits require a pretty prompt response in producing the records that they've requested. Now, you can always get additional time to respond, but insurance companies and certainly government agencies don't like to be ignored. And so when they feel like they're being ignored, they're going to continue to follow up. But that's starting to reflect negatively on the practice. And that's exactly what happened in this one instance. So it took months before the insurance company was able to get some sort of acknowledgment from the practice that they've been selected for a review and they wanted these patient charts. And then when they got the patient charts, they were scrutinized, in my perspective, harsher than they otherwise would have been because they had already created some ill will between themselves and the insurance company, from the insurance company's perspective, by not having good systems in place to recognize the request and to timely respond to the request. And while there were certain clinical deficiencies that the insurance company had, once they reviewed the records, by and large their biggest issue was, was the lack of response and the lack of full response when they did respond to the request for records. And as a result of that, they terminated their provider agreement for all providers, even though it was the providers that, I mean, they're ultimately responsible at the end of the day, right? It's their practice, they run the practice, they're responsible for overseeing what their staff does. But because there was a lack of systems and training that was in place, the staff did a poor job of escalating the audit notice to the doctors, who could then make sure that it was properly and timely responded to. So what I find in audits, and what I think I spend most time educating my clients on, is audits are going to happen. It doesn't mean that you've done anything wrong. But the first thing that we have to do is to make sure that we convey respect for the process by timely responding, providing all the documentation that they've requested, providing it in an organized and complete manner, because at the end of the day, those reviewers for the insurance company, they call balls and strikes. They're the umpire. So if they're on the fence as to whether to provide some leniency to the practice and the provider or not, if you've handled things the right way up to the point, it's been my experience that they will provide that leniency. And if you don't, that's when the insurance companies can Dig their feet in, take harsher positions as it relates to the record submitted, and then reevaluate whether you're a good provider for their insured population.

Are these agreements or contracts between the insurer and the provider? Are they at will, so to speak, either party can back out at any time? Or are there terms built into these contracts?

So there are terms, but each provider agreement is going to have some sort of notice provision where if you provide 90 days, 60 days notice, then you can terminate the agreement. And then you have to make sure that you provide that same notice to your patients who are insured under that plan so that they can decide that they're going to stay with you and you're going to be an out of network provider for that patient, or they can transition their care to another in network provider.

Do you think that insurers will oftentimes use this as an excuse to back out of a contract because it's become unprofitable to them and so they come up with some reason why they are auditing you to back out? Or is profitability never a driver behind these audits?

I don't really think profitability is a driver. I think that for the most part, many insurance companies are having a difficult time finding providers that will be network providers. There's sort of this trend within dentistry to go more fee for service and not necessarily be an in network provider for anyone. And you've seen insurance companies, in response to that, try to increase the reimbursements for procedures. And even at that, it's still, I think if you ask most providers, they're still far below what they need to be. But I don't think it's a profitability standpoint. I think it's more so, you know, they want to make sure that the providers that are in their network are complying with the terms of their provider agreement and that they're not paying money for services that aren't being rendered or that aren't being rendered to a standard that's acceptable to them.

Got it, Got it. So is there a way that dentists can protect themselves against being audited?

So yes and no. I mean, you can never really protect yourself from being selected for an audit. But what you can do is, and this is what I was mentioning earlier, you can have certain internal systems in place and conduct your own internal audits to ensure that if you are selected for an audit that it's going to go as favorably as possible. So I'm constantly encouraging my clients to conduct and have systems in place where they're auditing themselves. Are we documenting procedures properly? Are we within frequency limitations? Do we have documentation to where if we are selected for an audit by an insurance company, government actor, that we feel confident that our documentation is going to withstand scrutiny. So myself and my firm, we're frequently engaged to conduct these outside audits. To come in and check. Is a practice doing things the right way to where if they are selected, it's not necessarily they're going to skirt by without having to pay anything back, but minimize the potential payback because we are doing things the right way.

Got it. So what are some of the things that you see that dentists do that are usually a violation but that don't necessarily feel like a violation or you know, I guess kind of best practices on that front?

Yeah, I always see that documentation of, you know, I think there's the traditional SOAP note as they like to call it. So you have to, you have to provide justification, it's diagnosis, plan of treatment and then justification for doing so and then making sure that what you do perform, you, you properly document. I mean I've been a part of audits where you know, the focus of the audit has, has been multi surface restorations and you know, the documentation doesn't identify which surfaces of the tooth were restored. I mean that's an easy and relatively simplistic measure that can be corrected. But at the end of the day there are insurance companies where it clearly says if you don't identify the surfaces of the tooth that were subject of the restoration, then we will not pay on that claim. Or if we have paid on that claim and then it's under subsequent review, you know, we're entitled to claw back that money. So it's not even that these services aren't being provided, but they're not documenting the services properly. They're not, you know, I hear frequently we're running from one operatory to the next. You know, we don't have time to do the notes, you know, right in the room with the patient or you know, I try to catch up with my notes at the end of the day or at the end of the week. And I think it all goes back to systems. So you need to create systems to maximize your ability to document as contemporaneous with the treatment as possible. Because that's when you're going to have as much information at your fingertips to include in that note. And then if that note is subsequently scrutinized by an insurance company, it's more likely to withstand that scrutiny because of the thoroughness of the Note Are you.

Looking to buy or sell a dental practice? If you're a seller, how do you find a strong list of potential buyers? There's no MLS or Zillow for dental practice sales. In such a fragmented market, many dentists selling their practice feel discouraged. That's why I built practiceOrbit.com practice orbit is modernized in seeing how dental practices are bought and sold. It's a platform technology. Y' all know them Zillow, Airbnb, Uber, and OpenTable, just to name a few. These technologies do two things. First, they help match buyers and sellers by centralizing the marketplace. Second, once the match between buyer and seller is made, these technologies help them navigate the sale to a successful close. Here are a few of the features inside of Practice Orbit users can determine a reasonable sale price for practice in just minutes. All they need is the most recent business tax return. Practice owners can use the directory to find important service providers like practice brokers, attorneys, accountants and bankers. Practice owners and their brokers can invite those service providers into the platform so all parties are coordinating the sale together. Practice owners will have a beautiful digital listing of their practice like a home office Redfin. And importantly, the listing will be anonymous and personal information like your address, name and pictures are only released after an NDA is signed and approved by you or your broker. Practice buyers can create saved searches to be auto notified when new listings come on the platform that fit their desired specialty and location. And hey, dental practice brokers, you can list all your practices on the site for free. By doing so, you'll get access to Practice Orbit's large pool of buyers, all of whom have created profiles and saved searches to be autonotified when new listings come for sale. You can use the platform to introduce your listings to a targeted set of buyers. Additionally, and optionally, you can use the platform tools such as a built in NDA, a customizable loi, and a workflow tool to navigate the sale from LOI to closing. In fact, you can manage all your listings on the system from listing the practice to NDA to LOI and finally.

To closing the deal.

Create your free account today at www.practiceorbit.com.

And one of the services that you guys offer is coming in and looking at a practice's systems on that or doing kind of like a, I guess a pre audit to make sure that a practice is kind of operating the correct way.

Yeah, one of the cool things about our firm is so we have offices in five different states and so we have taken the approach that who better to work in defending individuals and entities that are facing regulatory scrutiny than the former individuals that served in that capacity for the government? So we have former federal agents that work as our firm's investigators. So on staff we have a former FBI agent, we have two former HHS OIG agents. So HHS OIG is responsible for investigating healthcare fraud. We have a former IRS criminal investigations agent. So we like to build our own mini government, if you will, that can work with clients not only in defending when the government has already announced that they're conducting an investigation, but to hopefully prevent an investigation from ever occurring. We call them compliance checks. So we're going to come in and we're going to identify again, we'll run our own statistical analysis to see what are your, your highest paying services, what are the services that you build the most at. And let's do a random review of, you know, 50, whatever number of charts for the past three or four years and let's see if those charts and that documentation pass our scrutiny. And if they pass our scrutiny, then they will likely withstand scrutiny from the insurance company or government agency. And if not, we're going to tell you these are ways that you, to improve so that you know, you're, you can't ever necessarily correct what's already happened, but you can improve your systems and improve your practice so that you know, moving forward you're, you're doing things better, more efficiently. So if, if ever under scrutiny that you've, you've minimized the damage, if you.

Will, let's go ahead and pivot now into board investigations. Can we do that, Justin?

Absolutely.

Great. Earlier you mentioned that audits aren't necessarily the trigger for board investigations. So what are those triggers? Question one, question two is when you're hired to represent in a board matter, how do you approach that?

Sure. So board investigations could start one of a few ways. Most commonly is a patient complaint. It could be a board investigation could start after, I think worst case scenario would be there's been some sort of criminal conviction or there's been a malpractice settlement of some kind. So let's, let's start with the most frequent and that's patient complaints. So patients submit complaints to the boards all the time and the board's responsibility at the intake stage is to identify those complaints that, you know, really merit investigation. So boards have, have an obligation to investigate all complaints. But boards can pretty quick, pretty quickly see that there are some matters that after having the provider respond to the complaint are not going to necessitate further action. But there are some patient complaints, and usually it's where there's issues with standard of care, and the patient had a procedure done, there was an adverse response to the procedure, they went to another provider, and it's typically another provider that may suggest or subtly hint at, you know, I don't think the provider that performed the service, you know, did things properly. You may want to consider consulting a lawyer. You may want to consider filing a complaint with the board. That's overwhelmingly the majority of board complaints. Also former employees. So if you have a staff member that leaves on poor terms and they feel like, you know, the practice is doing things improperly, whether it be billing or, you know, treatment or, you know, dental assistants or hygienists are performing services outside the scope of their licensure, they tend to want to report that conduct to the board as well. Most of the time, those former employees, it's really just. They have an axe to grind. But those can certainly result in legitimate board investigations.

Question on that. If I can drill into that a little bit, if you don't mind. Of course, different state regulatory bodies tend to favor, it seems like one side of these investigations. When there's a complaint filed, whether that's against a patient or in my case, it would be a client if one were ever filed. And employees I know in California, it almost feels like the employer is guilty by default unless proven otherwise. And I've just seen and personally had a couple cases that are so outlandish. And one example is we had this lady. This was early on when I started the company, and she came in to head up our tax work, and she had her resume. She had bounced all over the place. So I was sort of concerned about that. But I was also desperate, you know, and she came in, and I was just getting started. This was like 10 years ago.

And.

And so I didn't have a great process around the workflow in tax. And she was here for less than two days. She left, said she couldn't clean up my mess, which means you don't have any process around this. And I'm like, well, I'm just starting off as a company. She leaves her keys on the door, and she. She storms out. Next thing I know, a few months later, I get a letter from the Department of Labor where she's trying to claim unemployment off of the two days that she was here. And it was her voluntary decision to leave. Now, thankfully, she didn't win on that, But I've seen other cases where it seems to favor the person filing that complaint. In this case, with board investigations against a provider, against a dentist, whether that's a patient or an employee talking about their clinical standards, do you find that states tend to favor one side or the other? And how concerned should a dentist be when that investigation sort of lands on their doorstep?

Yeah, it's a great question. You know, I.

I want to believe that the boards really endeavor to only find those complaints where they truly feel like there, there is an issue that necessitates investigation. Okay. And I think from the board's perspective, at times it can be really challenging on, on the face of a complaint alone and perhaps a short telephone or in person interview of the complainant to determine whether the complaint has merit or not. And so that's why it is so important that when a provider is notified of a complaint and given the opportunity to respond to the complaint, that they really take the time to provide a thorough, thoughtful, concise response to the allegations of the complaint. So often I see that provider receives a complaint from the board, They've already made the determination themselves that this complaint has no merit. The board will very easily see that, you know, this, this patient is totally off base. And I'll submit a very simple response, very basic, and that should be the end of that. And more often than not, it actually makes the situation worse and will result in subpoena for records. And once the board is subpoenaing record, they're in it, they're investigating, and you now have to convince them why. The response that you initially submitted, you know, supports your position that there's, there's nothing to see here. There was no violation of the Dental Practice Act. So if ever confronted with a board complaint, if there's one thing that I could, you know, caution all providers, take it seriously. From, from step one, don't wait for, for you to alert malpractice or to retain private counsel until down the road after you've submitted a response, after you've produced records in response to a subpoena, and you get the sense that the board isn't going away, it's almost too late at that standpoint. Now, of course, good lawyering can always come in and hopefully clean up a challenging issue. But the sooner you bring in help, either through your malpractice carrier, if you have coverage for board matters, or through private counsel, it's important to do that at the beginning stage so that you know a proper strategy can be implemented. From, from step one.

Can I follow up on one thing you said? When a complaint is filed, you brought up malpractice insurance that you have malpractice, at what point should they contact the malpractice? And my understanding is that the malpractice might then bring in an attorney who they have in their sort of repertoire of attorneys that have contracted with them to represent the defendants. And I don't know if your firm works with malpractice or is contracted with them or if you're outside of that. But at what point should they reach out to malpractice, and should that be before trying to find legal counsel, since they may rely on the malpractice to engage legal counsel for them?

So I would encourage everybody to review their malpractice policy. I actually just had a phone call the other day with a provider who's undergoing an audit issue, and I asked if they had reviewed their malpractice policy to see if there was potential coverage for legal fees. It's commonly referred to as defense costs. And the response was, well, why would I look at my malpractice policy? This isn't a malpractice case. And there's such a misconception by some providers that, well, if it's not a malpractice case, then my insurance plan probably doesn't provide coverage, when in fact it's the exact opposite. I think there's so much coverage that providers don't realize that they have. So it could be for audits, as we previously spoke about. It could be if there was a HIPAA breach, which is becoming more and more of a problem. It could be for a board investigation. You know, I see lots of malpractice policies where there's 25 or $50,000 in coverage for legal fees relating to a board investigation. Now, the key is that there's typically some pretty stringent notice requirements within those policies where you have to provide notice to the insurance company within a certain period of time. Some have, you know, a more general term of within a reasonable period of time. But the sooner in time from when you're notified that you are the subject of a board investigation to notifying your malpractice carrier, the better. So safe statement is.

Safe statement is you. When you're. When you're notified of an investigation, first go to your malpractice provider before, unless.

You already have a lawyer, unless you already have a lawyer that you've either been referred to and worked with in the past or, you know, is. Is capable of handling these types of things. But, you know, there's nothing. There's not a ton of Lawyers out there that are the break glass in case of emergency, such as myself, that like to do the dental board investigations. So when providers don't really know where to turn their malpractice policy is in, their malpractice carrier is going to have those lawyers that are on panel lawyers that can provide that representation for them at, at no additional cost outside of whatever their policy covers.

Got it? So it's almost like in network versus out of network attorneys in some ways because you got your malpractice provider has a set of attorneys who are on that panel, I think is the term. And then that's going to be much less expensive for you because it's covered by the malpractice at least up to a certain extent, maybe, maybe all of it. And you would agree that the level of quality of legal advice is still strong regardless of them being sort of sometimes discounted through the malpractice. The malpractice provider who contracts probably slightly lower than market rates versus say I'll use the term, I know a fee for service attorney who you would use outside of that malpractice insurance provider.

It really depends. You know, I don't want to paint broad with a broad brush and say that, you know, if a lawyer is an on panel provider that, you know, you need to be weary because, you know, no good lawyer would ever be an on panel counsel for an insurance company. There are undoubtedly many high quality, well seasoned lawyers that are panel counsel for insurance companies that, you know, are more than capable of providing, you know, great representation if a provider was ever the subject of a board investigation. That being said, it's been my experience at times that, you know, I think it can also be challenging to have a panel lawyer because.

The lawyer is trying to almost serve two interests at the same time, which at times can be challenging. So lawyers have an ethical obligation to do what's best for the client. The client is going to be the dentist. But at the same time, as an in network provider for an insurance company, you want to make sure that you, you stay on their, their good list, if you will. And so, you know, you don't want to, you know, charge, you know, do more work than is necessary in order to get a result.

And so yeah, it's that classic. It's that classic. Your client is the dentist, but the insurance company is the one paying the bill.

So yeah, I mean, Matt, in your world, it's why you never have a broker that represents both sides of a transaction, right? Because it's like, how can you how can you represent both interests to the. Their best interest if you're. You have a side in both camps. Now, it's not. That's not the best analogy, but. Yeah, I, I'm not panel counsel for any provider.

Yeah, you just need to, you know, I, Yeah, you just need to go into it with open eyes and know that there's. There's a potential conflict there and make sure that you like and trust everybody that's on your side.

Yeah.

And.

Hey.

And hey, Justin. Yeah, I'm sorry. Go ahead and finish your thought there.

Well, and I was just going to say so, you know, a provider always has the option of, you know, using the counsel that's appointed to them from their carrier. And then if they felt it was necessary to retain their own counsel on the outside, that can be a second set of eyes and counsel, you know, during, during the representation.

So if a client does come to me and they've been investigated, I sh. I'm asking this probably ad nauseam. I apologize. I should send them to their malpractice before sending them to you, because part of me wants to say, hey, go talk to Justin. He's going to tell you what to do.

Or I think it's. I think either option is okay. So they could certainly contact their malpractice provider. One, I would say look at your policy. Do you have coverage for a board investigation, an insurance audit? If the answer is yes, or I think so, then I could certainly provide, you know, a review of that to confirm, yes, you have coverage. You know, you can certainly submit a claim. They likely have on panel counsel that can represent you or, you know, if you decided you wanted to retain myself and my firm, we could try to have the insurance company appoint me off panel. And that's where. That's what I find myself doing, is I, I will seek coverage under a malpractice policy for, for me to represent the provider, even though I'm not an in network on panel council. And, and generally speaking, the insured want. Or the insurance companies want the insured to be comfortable with their choice of counsel. So more often than not, the insurance company is going to be supportive, you know, with that arrangement.

Got it.

Very cool. All right, Matt, go ahead. And then we're going to move on to criminal matters.

Yeah. So just want to take a quick detour on this. With more and more DSOs popping up on the, you know, handling the business management side of practices and then having a relative partner dentist, what are some of the pitfalls you see for the partner dentists? As far as the regulatory side goes and being pushed by the business side. And what can dentists in that position do to protect themselves?

It's a great question and I'll try to be as concise as I can.

Because I know we're in a little.

Bit of a crunch here. Yeah, you know, private equity and business coming into the healthcare arena is a key focus of regulators. Making sure that providers aren't putting profits over patients is in the corporate practice of dentistry or you know, sort of those buzz terms that are thrown around frequently.

Yeah.

So from a provider perspective, you know, they always need to ensure that they are doing what's in the best interest of the patient, bottom line. And so if, if they're being pushed from a business side of things to, you know, maximize treatment once you have the patient in the chair, and if they don't believe that's in the best interest of the patient, then that's where they have to, they have to draw the line there. And sometimes it can be a challenging thing to do and it sounds easy, but also challenging at the same time. But they have to remember that, you know, it's their license and their license is their ticket to their well being. And if they start to prioritize the business side of things over the patient side of things, licensing boards are watching, you know, there's, there's more and more investigations and you know, sanctions against DSO related providers for lack of supervision if they have multiple offices in which they have an ownership stake or you know, you know, providing more services than are necessary, again, going on that profit side of things. So you know, as private equity and money continue to flood into the healthcare arena and you know, DSO is, you know, is really taking a foothold of dentistry, those providers have to remember that they need to prioritize what's in the best interest of the patient.

Absolutely. And you brought this up earlier, but it's this concept of kind of command responsibility and the idea that the dentist is responsible for everything that happens underneath them. So when you have that one owner dentist that Maybe has managing five or 10 practices with associates, they're on the hook for those associates actions. So you only want to spread yourself so thin without, you know, taking a huge risk that somebody's going to drop the ball and it's going to be your license that gets hit.

Very well said.

Yeah, we should get a malpractice Matt. A malpractice insurer, broker or insurance person to come and talk about what's covered, what's not. Things to consider when you're taking out a policy, especially if you have multiple providers under you, I would think. All right guys, let's jump into critical. Sorry, criminal matters. This just sounds juicy. Criminal matters, Justin, like what defines something as being criminal, what triggers this and when do you come in?

Yeah, so you know, it really goes back to that data analytics topic that we were talking about earlier. And it's really a combination of everything we've talked about so far. So criminal investigations, they really start in one of a couple ways. One, as we've already talked about, data analytics are now a mainstay in how state and federal agencies.

Determine what individuals or entities are going to be investigated. They look for those statistical outliers as a starting point. They also rely heavily on complaints from the public, whether it be a former employee that.

Alleges fraudulent conduct that is going on at the practice. Sometimes they file a whistleblower action referred known as a keytam action that can initiate a criminal investigation. It could be a patient, it could be a competitor really. The, the government will take sources of information that will trigger investigations from anywhere that they will come. But in dentistry specifically, where you're going to find those criminal investigations or where there's allegations of performing services weren't rendered or allegations where there was upcoding of services, I've seen a lot of investigations. And going back into the DSO world a little bit where you have non credentialed providers performing services and then they're being billed out under a credentialed provider. Those are some of the more common schemes where a dentist or a practice can find itself under criminal investigation and it can start a couple different ways. You could receive a subpoena where they're very similar to an audit. It's a request for records so you have to provide the documentation that they're demanding in response to that subpoena. It could be a, what's referred to as a knock and talk, where agents come and knock on your door or show up at your office and want to interview you and have questions for you to answer. Or worst case scenario, it could be a search warrant. Where, and I've had this before with dental practices where it's, you know, the beginning of a busy day, you've got lots of patients scheduled, but 10, 15, 20 agents come, come through the door and they, they shut everybody out. They're taking computers, they're taking patient charts, they're interviewing employees and it's literally going to put your, your practice on hold because there's inevitably there's going to be Patients there. Word is going to spread quickly and the sustainability of that practice is put into immediate jeopardy. So I had one investigation where I was contacted by a dental office that, where a search warrant had just been executed, took all of their computers, they had some paper charts, took all the patient charts. The practice was literally incapable of reopening because they didn't have any of their systems, no computers, no charts. How are they supposed to provide services to patients? They don't have any of the tools that they need.

How long did the government keep that, all of that stuff for the investigation, or how long was the practice down?

It took a couple weeks. It took a couple weeks because they have to mirror image all of the computers. They're going to scan or copy the paper records and then it can be difficult to get some of those records back. But once we got them back, the practice was able to reopen. But within that period of time, you have the gossip, you have public conversation, and, you know, it's challenging to ever restore your practice to what it was absent, you know, total vindication from the investigation. So in this one particular case, you know, fortunately we were able to disprove the allegations that were the subject of the criminal investigation. The client faced no criminal sanctions and was able to return the practice. There was no sanction against his license, nothing. But it took a good three years after we were successful in having the criminal investigation closed for him to rebuild his practice. And I think if he was being honest, his practice never really got back to what it was because there's always going to be members of the public that are skeptical that that provider was doing something wrong. You know, the government doesn't always get it right. And, you know, it's my job when hired to either disprove the allegations or to mitigate the consequences if there was indeed wrongdoing.

Got it.

A quick follow up, the second one that you mentioned, I think you called it a knock and notice.

A knock and talk.

A knock and talk. Do you recommend.

Having the client having the dentist not talk until an attorney's present in those scenarios, or do they have an obligation to answer any questions under their license, pursuant to their license?

Well, that's a. So that's. I'm going to give you the very lawyerly response. It depends.

Yeah.

But in a criminal investigation, it's always my recommendation that it's never in your best interest to answer questions from an Agent 1, because they generally already know the answers to the questions they're going to ask you and they're really evaluating what the answer that you provide. And two, if you try to outwit or outsmart or you're not entirely truthful, or you don't realize that the truth is only making your situation worse, that information will be used against you in their investigation. So it's always my advice that if ever contacted by an investigator, an agent, law enforcement officer, and they just want to ask you a couple questions that you consult with legal advice first.

Yeah. And it's, I think people have this misconception that they can talk their way out of it somehow. And the reality is, is that in almost every scenario, every word that you say is just harming you.

When investigators come to talk to somebody, there's usually two people, one that's doing that, asking of the questions, and the other person that's taking as verbatim of notes as possible. And rest assured, like I said, they know the answers to their questions. And if you say something in a way to outsmart them or to try to explain your way out of something, if it's false or less than entirely truthful, it will be used against you. So it's never in your best interest to answer questions without first consulting with a lawyer. And then if at some point based upon legal advice they suggest or they recommend and with their guidance, they think it's okay for you to answer questions, those questions are always available to be asked, but you should never do so without first consulting with legal advice.

Yeah.

And I would also say just because reputation is on the line and can slide south very quickly, engaging somebody like you immediately for both protecting yourself in those question, you know, in those interviews, and also for your reputation, ideally you could spence it quickly and so it won't even sort of ripple out into your reputation. Just super, super important. Okay. As we come to a close here, Justin, I'd love for you to share, sticking on criminal a little bit longer. Share with us two or three either common cases or interesting cases that you think may be relevant for our listeners. Just for the sake of like awareness of what's, you know, what's happened out there and what should they definitely be avoiding.

Sure. So the first case, and I'll give you two different cases. So the first case was a state Medicaid fraud investigation and the allegations were that my client had hired, excuse me, a non credentialed provider. So a provider that had been excluded from billing Medicaid because of prior criminal conduct. I was hired. We conducted our own defense side investigation and determined that there was legitimacy to these allegations. There was an excluded provider that had been hired by the practice and was billing improperly. But what we were able to prove is that there wasn't criminal intent on the side of the practice owner to hire an excluded provider and then improperly bill for their services. Instead, what it was is, and it goes back to what we talked about at the beginning. There was a lack of proper systems in place, so there were deficient hiring practices where they unfortunately didn't even know what the exclusion list was and that a healthcare provider could find themselves on an exclusion list. So when they hired this person, they did no background check. They pulled up their licensure profile on their state board website, saw that it was active and in good standing, and decided to hire the provider without doing any of the necessary due diligence, aside from just the standing of their. Their dental license, to see if this is a provider that you want in your practice. Had they done a very basic search of the state's exclusion list, they would have seen that this individual was on there and that as a result of being excluded, they were radioactive, that they couldn't provide services to any individual that was a Medicaid insured patient. And if they had, then those services that were rendered to that patient could not be billed to Medicaid. So it effectively becomes impossible to employ an excluded provider in this circumstance. They did. The state attorney general's office thought that there was criminal intent behind the hiring and utilization of this provider in the practice. But we were able to show that it was deficient hiring practices, a lack of systems in the office that were really the cause of the issue. Not some intent to defraud the government, not an intent to defraud medication, Medicaid. Another example was, and I'm going to go back to that example where the office was raided by the FBI. So in that investigation, there were allegations that the provider was not rendering the services that he had billed to the insurance companies. And a large issue was whether the provider was billing for restorations that he hadn't performed. Well, he was in a. A rural area, not a lower socioeconomic status of the population. You know, in an area where there was rampant drug use, oral hygiene was, was not prevalent, let's say. And so there was. There were lots of patients that if they got into a chair, easily needed 20, 25 different fillings on their teeth. And so the patient or the practice again fell, fell victim to the statistical data analytics, where they were a statistical outlier substantially compared to other practices that were in their general area. And the government was relying on X rays to identify the existence or not of a restoration. And so for those clients of yours that are providers that are listening, they know that you can't rely on an X ray to determine whether the existence of a filling or not. You just can't do it. But the federal government was. They executed a search warrant on the practice, relying on that. And again, through internal investigation and by, you know, going to different providers and compiling intraoral photographs that some of these patients had, either because they went to an orthodontist or they went to a specialist, you could see the presence of these fillings in the patient's mouths. And so as we continue to show the government the evidence that we were compiling that rebutted their allegations, eventually they decided to shut down their criminal investigation. But it wasn't until the provider had spent a significant amount on legal fees and had his office, a search warrant executed on his office and almost lost his practice because his patients went elsewhere because they thought, well, if a search warrant is executed on the office, then you must be guilty of whatever it is they're saying you did. Unfortunately, in that case, for that provider, he wasn't. And he was able to rebuild his practice to a place where it's again, profitable.

Justin, thank you. This has been very relevant. It's one of those podcasts where unfortunately, pretty much every dentist should listen to and just prepare, Prepare for the unexpected. Think about your systems, your processes around your clinical, around your hiring, around your billing, around your relationship with your. The insurance carriers, all of those things. To have a really healthy standard of business practices to protect yourself, because it could sink your career, it could remove your license, and then where do you go from there? So great content. How do people get ahold of you?

Sure. So you can find me on LinkedIn. Search my name. Justin Withrow. My firm's website is Flannery, Georgia. If you type in my name into Google and my firm name, all my contact information should pop up. Yeah, those are the best ways to get ahold of me.

Excellent. We'll also put it in the show notes. If you go in the podcast or on the show website as well on Apple or your directory, you can find the information there. Matt, also, thank you. Your questions really added to, I think, the focus of the conversation.

Yeah, absolutely. I know I learned a lot. So thank you, Justin.

Thank you.

All right, guys, take care.