Dr. Michael W. Davis maintains a general dental practice in Santa Fe, NM. He serves as chairperson for Santa Fe District Dental Society Peer-Review. Dr. Davis also provides a fair amount of dental expert legal work for attorneys. He may be contacted via email: MWDavisDDS@comcast.net
Unlicensed Dental Hygiene Practice as a Business Model
The unlicensed practice of dental hygiene is unlawful in all 50 states. In reality, enforcement is lax to nonexistent. In the infrequent event of violators charged, the bigger the violator, the more lenient the penalty. State regulatory dental boards have generally failed to address this problem, and their inaction has enabled and emboldened violators. Dental practices which conduct their business affairs within the rule of law are at a distinct marketplace disadvantage, to dental practices which engage unlawful dental hygiene practice as a business model.
Traditionally, only doctors were lawfully permitted to own dental practices and supervise the practice of dental hygiene within their businesses. Today, a dental practice may only be “owned” by a dentist(s) as a nominee figurehead. An outside corporation may truly beneficially own and manage the dental practice and the practice of dental hygienists. These beneficial owners (often private equity investment companies) pull the strings on the doctor/patient relationship, as well as the practice of dental hygiene in their clinics via dental service organizations (DSOs).
Jesus Villegas, DDS MS
Dr. Villeges, a pediatric dental specialist with clinics in Milford and West Haven, CT, settled with the US government for $1.3 million for his alleged actions of utilization of uncertified dental assistants in taking dental radiographs.1 These patient services could only lawfully be delegated to certified dental assistants or licensed dental hygienists. This dental Medicaid fraud case was notably prosecuted in Connecticut, as were earlier federal and state criminal actions against Dr. Gary Anusavice2 and later Dr. Mehran Zamani3, who operated a chain of dental Medicaid clinics, also in CT.
Phillip M. Coyne, Special Agent in Charge with the US Health and Human Services- Office Inspector General stated, “Dentists must ensure that only certified staff provide services to their patients. Cutting corners could jeopardize the safety of patients and the integrity of the Medicaid program. Working with our law enforcement partners, our agency is dedicated to protecting patients and the government health care programs designed to serve them.”1
US Attorney Deirdre M. Daly added, “Health care providers must utilize properly certified individuals to treat patients, and the failure to ensure such proper care for patients will have serious consequences.”1
Douglas Macko, DMD MS
In the case of State of Connecticut versus Douglas Macko, the decision awarded $717,000 to the plaintiff, for Dr. Macko’s violations to the Connecticut Unfair Trade Practices Act.4 Dr. Macko unlawfully employed unlicensed personnel to provided dental hygiene patient services to pediatric dental patients. The court’s decision went into length on Dr. Macko’s efforts misrepresent facts of the case. The court also determined unlicensed staff falsified statements of fact in affidavits to support their employer. Like the aforementioned legal case of Dr. Jesus Villegas, this legal action involved a specialist pediatric dentist, and primarily dental Medicaid fraud.
Thomas P. Floyd, DMD MS
Similar to the previous cases, Dr. Floyd was a pediatric dental specialist mostly serving a children’s Medicaid population. However, his case was prosecuted in Florida, not Connecticut. In Florida, dentist violators are far more likely to receive regulatory wrist-slaps and large chain DSOs no investigation whatsoever (similar to most states).
The State of Florida Department of Health charged Dr. Floyd with multiple counts.5,6 Some involved dangerous infection control practices and standards. Other counts involved physical and emotional abuse of children. Also addressed were poor patient record keeping and a lack of parental informed consent. Finally, similar to the previous abusers to the public welfare, Dr. Floyd was charged with 71 counts of engaging the services of an unlicensed auxiliary, to perform the service of scaling and root planing (deep tooth root surface cleanings, under the surface of vulnerable gum tissue), which only a licensed dentist or hygienist may lawfully provide.
In his plea agreement with Florida, Dr. Floyd agreed to surrender his dental license, discontinue the practice of dentistry, and work 150 hours of community service.7 At the time of his plea deal, Dr. Floyd was nearing retirement age, in his mid-60s. Florida regulation provided the typical “too little and too late” protections for its citizens.
Perfect Teeth Dental (a/k/a Birner Management Dental Services)
Perfect Teeth Dental is a DSO operating in CO, NM, and AZ. As astute readers of Dentist the Menace realize, Colorado is a state particularly favorable to the unlicensed and unlawful practice of dentistry by third party corporations.8 A prime example of regulatory wrist-slap to DSO violators of the public interest was a case involving Perfect Teeth Dental and former Perfect Teeth president, Dr. Mark A. Birner (case number 1997-3698000131).9
This DSO allegedly had a company-wide policy of employing unlicensed auxiliaries, to provide unlawful dental hygiene services. Such unlawful activities of Perfect Teeth Dental potentially represented literally many thousands of acts of civil and criminal fraud. Since the employee doctors working in a DSO truly have no direct management control of corporate policy or employees, it comes down to unlicensed corporate managers calling the shots, and on a very broad and potentially dangerous scale. In the stipulated settlement agreement, Perfect Teeth Dental, without admitting any wrongdoing, agreed to provide management oversight for actions, they denied engaging in. Colorado regulators couldn’t even bring down a wrist-slap, for highly disturbing alleged public abuses to dental consumers on a massive scale.
Unlicensed and unlawful practice of dental hygiene is a common practice within the dental industry. Statue violations and violators go largely unaddressed. Those few violators who face penalties generally see little meaningful consequences for civil and/or criminal statute breaches (CT has been the exception.). Unlicensed dental hygiene activities seem somewhat more focused on Medicaid populations, and to pediatric dental specialists. However, an in-depth study has yet to determine the full pervasiveness of this unethical and illegal activity.
Engaging unlicensed personnel to unlawfully provide dental hygiene services undoubtedly reduces overhead costs for a business. Since employee salaries are the largest overhead cost in the dental industry, the cost for a $14/hour unlicensed assistant, versus a $45/hour licensed dental hygienist, definitely impacts the fiscal bottom line. Financial pressures and incentives to violate state law for unlicensed dental hygiene practice are self-evident in the dental industry. Regulators are largely asleep at the wheel, and incentivize violators through their inaction or minimalist action.
The dental hygiene profession is currently under great pressure to survive. Many licensed hygienists are unemployed or underemployed. States like Alabama will license on-the-job (OTJ) trained dental assistants, to become licensed dental hygienists. Formerly, dental hygienists were primarily graduates of 4-year baccalaureate programs. Today, graduates of 2-year associate degree programs and 18-month private institutes are in the employment competition mix. All those duly licensed dental hygienists compete directly with unlicensed and unlawful dental hygiene practitioners, who are supported and sponsored by more powerful unethical dentists and DSOs.
Organized groups of professional dental hygienists are dissolving. Membership in these groups is in a virtual freefall, as the total number of licensed dental hygienists increases exponentially. State and local groups seek to break free of larger national groups, as was recently witnessed in California.10 Professional dental hygienists aren’t seeing their organizations as responsive to their profession’s or the public’s needs.
All the while, the public is totally ignorant on the possible dangers and healthcare damage they face. Potential damages to individual patients rarely meet dollar amounts required to retain the services of a civil attorney. Few private law firms have the dental expertise to file and manage dental fraud class actions. Thus, the public is for the most part swimming with sharks in a largely unregulated industry; unlicensed and unlawful practice of dental hygiene.
Conclusion- Consequences for the Dental Profession, Dental Hygiene Profession and Public
There is little doubt, the acceptance and entrenchment of fraudulent actions like unlicensed dental hygiene services diminishes and degrades standing of the entire dental profession. Short term income enhancements have long-term negative consequences. The public rightfully loses confidence and trust in dentistry.
Moreover, those dental practices conducting fully lawful dental services must compete in the same healthcare marketplace, as unregulated cheats and crooks. The financial pressure is to either join the violators, or get out of that business.
Dental Medicaid offers a prime example of forcing providers the fiscal necessity to either cheat and commit fraud, or get out of Medicaid. The State of Texas has accepted dental Medicaid fraud as a state jobs program.11 Prosecutions of alleged dental Medicaid fraudsters involving hundreds of millions of dollars has been terminated. In fact, if prosecutions were to continue and violators properly sanctioned and suspended from serving government programs, few if any dental providers would remain. Ethical dental providers (most dental providers) were long ago economically forced out of the Medicaid program, and decline to register as Medicaid providers. Except for good-hearted beneficence of doctors largely donating dental care to the disadvantaged, dental Medicaid would solely be serviced by dental fraudsters. Lack of proper regulation maintains viability of the toxic dental Medicaid program. Both disadvantaged citizens and taxpayers take the hit.
Downward economic pressures are destroying the profession of dental hygiene. In numbers of sectors, unlicensed and unlawful dental hygiene practice is the norm and lawlessness is growing. Very adequate laws already exist to protect the public relating to the practice of dental hygiene. Unfortunately, regulatory enforcement is nearly nonexistent. One must question why professional dental hygiene organizations haven’t made state and federal regulatory enforcement their groups’ top priority?
Some blame dentists for selling out the dental hygiene profession in their pursuit of added revenues for their businesses. Greed of individual doctors can’t be discounted. However, much larger forces are in play.
As discussed earlier, dental Medicaid often isn’t fiscally viable without cheating the system and patients. Additionally, the DSO industry and public health groups are advocating for lower cost dental care. They demand providers with less training and at lower salary cost, and somehow magically insist quality of care will be maintained. This certainly involves the dental therapist issue, but also dental hygiene services provided by lesser trained auxiliaries.
One might assume organizations of dentistry and dental hygiene would come together as allies in this fight for the public interest. Yet, these groups with similar interests usually stay at a frictional distance from each other. Neither group trusts the other, and animosities often run deep. This must change.