Emerging Advocacy Groups Support Small Business Dentistry

20 Apr 2018 Michael W. Davis, DDS

Small business dentistry is increasingly establishing advocacy groups designed to address specific issues. Areas of concern range from protecting the doctor/patient relationship against the intrusion of the insurance industry and corporate dentistry to honest evaluation and solutions for the public’s “access to care.”

These associations are springing up in a variety of different states. Because of their distinctive smaller sizes, they are highly attuned to specific predicaments unique to a given state. Larger national groups may have multiple and conflicting agendas, which too often grind effectiveness to a standstill. These smaller spearhead organizations often serve as the initial testing ground for addressing and solving challenges. Many times, state dental associations will later pick up the banner and carry forth with their added weight and power of membership.

Three organizations that exemplify this movement are the Concerned Dentists of Texas (CDoT), the Concerned Dentists of Washington State (CDWS), and the Massachusetts Dentists Alliance for Quality Care (MDAQC). Each of these relatively small associations is free to examine problems unique to its specific state and discover optimal mechanisms for local problem solving. They aren’t handicapped by the political or economic motivations of a faraway distanced leadership. They aren’t bogged down by neverending and do-nothing committee meetings. And, they lack multiple layers of leadership hierarchy, which often hinders effective action…

Read Dr. Davis’ entire article here.

Corporate Healthcare: Important Contracts

January 1, 2017 Written by Michael W. Davis, DDS

There exist 3 common contracts doctors sign with corporate dentistry. These include employment contracts, purchase sales agreements, and business service agreements (BSAs). Each of these contracts may be peppered with legal landmines. It is imperative that doctors accept that their expertise is patient care, and not swimming with the sharks of corporate healthcare. Nothing in corporate business negotiation can be taken at face value. This is not a relationship based on mutual trust and respect, as in the doctor-patient relationship, or when working with a specialist colleague. Corporate interest is almost exclusively directed at the financial welfare of investors. By contrast, a doctor’s focus should be his or her patients’ best welfare. The conflict of interest is self-evident.

It is advisable for dentists to secure the services of highly capable legal counsel before entering into such agreements. The attorney should have a solid background in corporate healthcare employment and contract law, especially in the dental service organization (DSO) industry. These are not well-intended local attorneys who may also spread their time between divorce law and personal injury cases. The DSO industry retains the best legal counsel that money can buy. You need to be on a somewhat equal footing.

EMPLOYMENT CONTRACTS
Legal counsel advice is invaluable with employment contracts. Attorneys may tell you from the onset their personal knowledge of the reputation of a corporate employer, saving you headaches later. Some employers are quite hostile toward employee doctors, as contracts may be routinely dishonored, and workplace abuses abound. In this case, you need to immediately walk away.

Read the entire article here

Doctors Selling Practices to Corporate Dentistry; or Dancing with the Devil

 

Title: “Doctor No Control” By: Vaidya Selvan, DDS

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

 

Doctors Selling Practices to Corporate Dentistry; or Dancing with the Devil

More and more, dentists owning and operating private practices are approaching retirement age. In today’s dental practice sales market, and within numbers of demographics, practice buyers are limited. Younger practitioners are saddled with student loan debts between $250,000 and $330,000 upon graduation. These junior professionals usually lack adequate credit ratings to assume the purchase of a small business. They often must pay down mountains of debt over an extended period of years, to demonstrate credit worthiness.

Most states have statutes which require only duly licensed dentists may own and clinically operate dental practices. These laws were established because a doctor has a primary ethical and legal obligation to place interests of patients to the fore. By contrast, a corporate entity has a primary obligation to place generation of profits and the interests of shareholders (not patients) to the fore. The conflict of interest is obvious.

The dental service organization (DSO) industry (a/k/a corporate dentistry) has stepped into the mix seeing an opportunity to generate profits for Wall Street and the private equity investment industry. Over most of the past decade, the feds have kept interests rates artificially low for the intended purpose of economic stimulation. DSOs have moved into this buying opportunity and purchased many hundreds of dental practices.

DSOs often retain selling doctors for a limited time after the sale of their dental practices. However, with maximal profit generation being the bottom line, not patient welfare, these doctors are usually dispensed in short order. A recent dentist graduate may be retained, regardless of limited skill and clinical experience, for far less salary remuneration.

Also favorable to the DSO, the recent grad employee doctor has little emotional or professional ties to the existing patient base. These doctors are unlikely to question policies of the DSO diminishing quality of patient care. If they do raise ethical questions, they are quickly replaced with others who play along with the DSO’s practice of dentistry, with the ultimate goal of maximizing quarterly profits. Most of these young doctors are primarily focused on paying down educational loans, and moving out of the DSO clinic, as soon as reasonably possible. Most of these doctors truly do care about providing patients with the best care possible, but their hands are tied.

(Author’s note: To circumvent state statutes about only doctors owning dental practices, DSOs establish shell companies for nominee ownership of their dental practices.^1-6 These may be individual dentists who purportedly “own” one or several dental clinics, or a group of dentists who are assigned “ownership” status for an entire chain of clinics. In no case do these doctors exercise any real control or benefits of ownership of these dental practices. The “big lie” of the DSO industry is that they only control the non-clinical aspects of a dental practice and doctors contract with them for this service. In reality, doctors are employees of corporate management and do what they’re told, or forced out or fired.)

Case of Dr. Susan McMahon vs. Refresh Dental Management, LLC, et al

Legal cases arising out of disputes between selling doctors and the DSO industry is highlighting many of these problems. Dr. Susan McMahon alleged in her action against Refresh Dental Management, et. al., that she was financially and professionally damaged after selling her practice, to a shell company subordinate of a DSO.^7,8 Within a couple of years, she was terminated from employment, as is common.

(Author’s note: Dr. McMahon’s resume includes very substantial clinical achievements, as well as professional teaching assignments. Although the legal filing was against Refresh Dental Management, LLC, et al, the parent company is North American Dental Group⁹, which is in the private equity portfolio of ABRY Partners- a Boston-based private equity investment firm.¹⁰)

Dr. McMahon alleged that for numbers of months after leaving employment, her name remained on the DSO’s clinic signage and advertising from insurance companies. Clinic staff was instructed to misrepresent to patients her employment status; claim she now worked in the restaurant industry, and claim she had a license suspension for abuse of controlled substances, or had retired from dentistry, all according to signed affidavits in Dr. McMahon’s legal pleadings. Dr. McMahon further alleged that patient records were denied her, upon patient request. Allegedly, Refresh Dental staff was using the name and positive reputation of Dr. McMahon to get patients in the clinic door, but invent falsehoods as to why she wasn’t there when they got there—the classic bait-&-switch scam.

 

Dr. Michael W. Davis on Corporate Dentistry at Dentistry Today

Dentistry Today Interview with Dr. Michael W. Davis

WHISTLEBLOWERS IN ACTION: Dr. Steven Pesis Discusses How Unethical Use of HIPAA Contribed to Patient Abuse at University of Pennsylvania

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
By: Michael W. Davis, DDS





Dr. Steven S Pesis DDS
Email: Shimstock1@gmail.com
Dr. Steven S. Pesis studied psychology at Queens College before receiving his DDS at The University of Michigan School of Dentistry. He then received advanced training in general dentistry by attending the AEGD residency program at the Kornberg School of Dentistry at Temple University. During his residency he was educated in a variety of complex dental cases, including full mouth rehabilitations, implant dentistry, esthetic dentistry, Invisalign and dental anxiety. Following his residency, he worked in public health dentistry until he joined the Penn Dental Family Practice at the University of Pennsylvania. He also taught as Clinical Associate in the Department of Preventive and Restorative Sciences for the University of Pennsylvania School of Dental Medicine.
 
Born and raised outside of Detroit, Michigan, Dr. Pesis is a member of a family of dentists. His father and uncle share a practice in Michigan, while his brother practices in the public health sector for Philadelphia. He hopes to use his knowledge of dentistry and psychology to provide patients with the best possible care, educate future dentists and to further the advancements in the dental field.
 

INTRODUCTION

Dr. Steven Pesis is a public safety whistleblower, who acted in accord with his ethical and legal obligations to expose patient abuses under the American Dental Association Principles and Code, Pennsylvania Commonwealth administrative statutes under the dental practice act, as well as internal policy of the University of Pennsylvania (U/Penn). As a result, Dr. Pesis alleges he was wrongfully terminated from employment by U/Penn. Dr. Pesis filed a legal action against the Trustees of U/Penn and Peter K. Kauderwood, assistant dean at U/Penn School of Dental Medicine.

See: Suit Claims Penn Dentist Was Fired For Reporting Unneeded Treatment
 
INTERVIEW
Dr. Davis: Dr. Pesis, I sincerely thank you for taking the time and effort to address matters of this case. Our readers will fully appreciate you are unable to address certain specifics and details of this issue, because of ongoing litigation. However, could you give our readers an overview and outline of your case? 
 


Dr. Pesis:Thank you for taking the time to discuss these issues, Dr. Davis. You are a true dental professional, constantly advocating for patients and bringing these issues to the public. The importance of quality care for dental patients, honesty and integrity are the cornerstones of dentistry and should not be overlooked.
 
My situation began close to a year ago. The Penn Dental Faculty Practice also known as the Penn Dental Family Practice (PDFP) renovated a large portion of a new building at the University of Pennsylvania in order to relocate one of its three offices. The cost quickly began to increase and once completed, the project was rumored to be severely over budget. This office at 3737 Market, known as the University City location, was to be the crown jewel of the PDFP and many of the top producing dentists were transplanted from the other offices to this new location. After all of the commotion, I remained as the only full-time dentist at the PDFP Locust Walk location and I was designated by Dean Denis Kinane of the dental school as the Clinical Advisor for this location.
 
Shortly after the opening of the new office, the Locust Walk location hired a new dentist in order to fill the void left by the relocation of multiple dentists. During the new doctor’s first few days working at Locust Walk, I received reports from doctors and hygienists that he was extremely aggressive in his treatment plans, over-treating patients as well as billing incorrectly. The clinical advisor from another office also discussed similar concerns with me regarding the new dentist. We both investigated the information and determined that there were real concerns regarding the new dentist’s billing practices and treatments of patients. These findings were finally reported to the clinical director, Dr. Alisa Kauffman. Shortly after the reports were made, I was terminated from employment from the University of Pennsylvania. I was pulled into an office and told that I had violated HIPAA and that I was being terminated from my clinical and teaching positions. I spent nearly an hour explaining that these allegations were false and that everything I did followed HIPAA protocol and did not violate the university privacy policy. One of the last things I said was that regardless of what my fate is, PDFP owes it to the patients to investigate the new doctor’s practices. To my knowledge, no investigation was conducted into the claims that were made and to this day, individuals at the PDFP remain scared to report any wrongdoing by the new dentist for fear of retaliation.

Economic Turf Wars over Dental Sedation and Public Safety

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
Economic Turf Wars over Dental Sedation and Public Safety
By: Michael W. Davis, DDS


Introduction
One can’t evaluate the different parties fighting over dental sedation privileges and the vast sums of money involved, without examination in the context of our toxic dental Medicaid program. Medicaid is a social safety net program jointly funded by the federal government and each individual state. However, administration of dental Medicaid is left to the particular state. Each state handles dental Medicaid very different with a complex variety of outcomes.

Florida
For example, the state of Florida refuses to authorize hospital-based sedation for dental Medicaid cases. Therefore, many of the most severe dental cases go untreated. Institutionalized patients for severe developmental disorders often go untreated. The potentials for ensuing major medical problems may go unaddressed, until the crisis stage for morbidity and mortality (illness and death).
As a result, numbers of Florida dental Medicaid providers deliver in-office sedation upon patients, who truly should only be seen in a hospital setting. Children, who have a much greater compromised airway than adults, are treated en masse with cocktails of different sedation medications, and in risky dose levels. In order to maximize dollar production under a flawed Medicaid fee schedule, these doctors are notorious for a dangerous lack of patient monitoring.

 https://appsmqa.doh.state.fl.us/DocServiceMngr/displayDocument.aspx
 
Authorities rarely deliver more than wrist-slap regulation upon these violators, as their removal from the Medicaid system could hasten the collapse of this broken government program. The poor and disadvantaged are left between a rock and a hard place. They can elect to eat a $hit sandwich or go hungry.

Other providers of Florida dental Medicaid pursue a different scheme. They simply place any “uncooperative” child in restraints (euphemistically called “protective stabilization”). Again because the dental Medicaid fee schedule is so abysmal, these doctors feel justified in maximization of dollar production regardless of a child’s stamina, understandings, and limited abilities. All treatment possible is completed in a single visit. In order not to overdose a child for local anesthesia (generically termed “Novocain”) for their diminutive body weight, these doctors frequently deliver inadequate anesthetic, which generates excruciating patient pain. However, with the child adequately restrained, dental services of extractions, steel crowns and pulpotomies (baby root canals) continue, regardless of a child’s discomfort. Obviously, many of these patients will be in need of extensive psychological counseling for posttraumatic stress. Unfortunately under our programs for the disadvantaged, it’s doubtful this brutal problem of which government bares great responsibility, will ever be addressed. Medicaid dentists too often choose between “juice ‘em (sedate) or papoose ’em (physical restraints)”.

https://appsmqa.doh.state.fl.us/DocServiceMngr/displayDocument.aspx
http://floridajustice.com/wp-content/uploads/2015/11/Schneider-arrest-warrant-affidavit.pdf
https://appsmqa.doh.state.fl.us/DocServiceMngr/displayDocument.aspx
 
Whistleblowers who step forward in Florida to expose these abuses to authorities are met with institutional roadblocks. These professionals with integrity are forced out of government service by superiors. The rationale is that if the crooks and abusers are severely disciplined and removed as Medicaid dental providers, there will be too few providers to keep the toxic program viable. Government enables the abuse of our most vulnerable citizens and assists in cheating taxpayers. http://media.news4jax.com/document_dev/2016/02/03/Dr.%20Mason_2048400_ver1.0.pdf
 
New Mexico
New Mexico (NM) allows for dental Medicaid hospitalization and sedation coverage, unlike Florida. On paper and in theory, Medicaid patients will be permitted access to hospital operating rooms and nurse anesthetists for necessary dental care. The reality is quite different. Further, the in-fighting between providers and hospitals is in anything but in the interests of patients.

Dental Insurance Rip-Offs… Consumers Beware!

 
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


 
  Dental Insurance Rip-Offs… Consumers Beware!

One of the biggest scams facing dental consumers are products sold to them, which are misrepresented or falsely presented as dental insurance. The reality is usually quite different. Other times the product sold to the public is truly dental insurance, but it has virtually no value or entirely no value to the consumer. The bait presented to the potential dental patient is low- cost monthly payments for insurance. Unfortunately in too many cases, the dental consumer is hustled out of their money with little or nothing to show in cost savings or benefits.

Bogus Dental Insurance Plans
 
There are swindlers who sell consumers all sorts of insurance plans for low-cost monthly payments. Sadly, the plan administrators failed to secure the services of any healthcare providers, assuming these bogus insurance plans even have an administrator. All legitimate dental insurance programs must be registered within the states they do business within. They must comply with each state’s rules and regulations for dental insurance. A check with your state insurance commission will provide you with a listing of all duly and lawfully registered insurance providers. If the dental insurance company providing the plan isn’t listed, that’s a red flag warning. Stay far clear of that company.

Discount Programs
 
Discount programs for dental services are too often presented in a deceptive format, which gives the impression of dental insurance. For that reason, numbers of states have outlawed these discount plans. In no case are these dental discount plans regulated by the state insurance commission. However, numbers of state attorney generals have attempted to close down these dental discount card programs, in service of the public interest.

Some discount dental programs are sold by independent companies, with little or no background history available. They may or may not even have enrolled dentists, who participate and honor their discount cards. Too often, the few dental clinics which do accept these discount programs artificially inflate their fees, to offset any consumer savings. Other dental clinics find these discount plans work to get customers in the door, for more profitable bait-and-switch scams or hard-sell upselling of additional services. Unfortunately, consumers attracted to purchase these discount cards are frequently financially disadvantaged, and not particularly sophisticated in dishonest business dealings. They are primed for the plucking.
Large corporate dental clinics also sell dental consumers a variety of discount dental plans, which are administered under their company. Again, numbers of states have outlawed these plans, because they too closely resemble lawful insurance programs, which they are definitely not. Some corporate dental outfits manipulate and misrepresent their fees in a variety of ways, such that patients purchasing a discount plan actually may have no cost savings, or actually pay more, than patients utilizing standard dental insurance.

Sales of dental discount plans have become so lucrative, that bonafide dental insurance companies have entered into this racket. It’s highly profitable for them, as they don’t need to register these plans as insurance vehicles with any state regulatory commission, and they aren’t as subject to state or federal auditing. Moreover, these discount plans cost the insurance company no outlay of expenditures for patient dental benefits. Since there is no remuneration paid to dental providers by the insurance company (only a promise by dental clinics to discount fees), the insurance company has little incentive to monitor or audit billings from dental providers. Unfortunately, too often the same bait-and-switch and hard-sell upselling we see with corporate dental clinics, also happens with dental clinics accepting dental discount cards sold by an insurance company. Once again, consumers get screwed.

Dishonest Dental Insurance
Dishonest dental insurance has become a highly popular swindle, especially since the inception of the Affordable Care Act (ACA) and the various state insurance exchanges. Yes, these are genuine dental insurance programs, many of which are specifically designed to cheat consumers. With all the new changes in the insurance industry, many state regulators are ill-equipped to provide appropriate oversight. In this deceitful quagmire of the insurance industry, consumers are at risk. Let’s examine some of the more popular methods of gaming dental patients.

Numbers of health insurance companies today sell dental insurance at an additional upgrade fee. What often isn’t disclosed to the plan purchaser is that the dental coverage is fully embedded in the medical insurance plan. The consumer is sold on dental insurance, which covers preventive dental services, along with many restorative services. What isn’t disclosed is that the consumer often must reach the medical deductible limit of $5-6,000, before they become eligible for dental benefits.

American Dental Association’s Strange Bedfellow, Wonderbox Technologies

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
 



American Dental Association’s Strange Bedfellow, Wonderbox Technologies
On June 8, 2016, the American Dental Association (ADA) announced its collaboration with Wonderbox Technologies.¹ The effort is designed to provide a centralized computerized credentialing service for doctors, at no cost to ADA member dentists. This database could be accessed by third party payers such as insurance companies, government entities, hospitals and clinics, as well as employers. The desired result is a more streamlined credentialing process with elimination of duplicative efforts.

Obviously, such a data bank will contain highly confidential material. The consequences of a data breach could easily compromise doctors, but also potentially damage entities legitimately attempting to access data for dentist credentialing. Personnel at Wonderbox Technologies and the ADA involved in safeguarding private information must maintain the highest levels of ethics and meticulous safety protocols.

Craig Kasten is the board chairman and co-founder of Wonderbox Technologies. Formerly, Kasten was co-founder and co-owner of Doral Dental, an interstate dental Medicaid administrator. Doral Dental was bought out by DentaQuest, in 2004 for a reported $108 million.
Craig Kasten and Doral Dental gained notoriety during the federal criminal trial of today convicted felon (66 months), John Ford on bribery scheme charges.^2-4 Former Tennessee state senator, John Ford was commonly known as “Mister 10%”. This referenced his alleged unlawful skim on state government contracts.


Doral Dental paid through a consulting firm over $400,000 to John Ford, in order to secure an $18 million state contract to administer dental Medicaid in Tennessee. Prior to the payment, Senator Ford spoke vociferously against the services of Doral Dental in Tennessee. The astonishing turnaround was 180 degrees, once payment was assured.


During the trial of John Ford, the defense wanted to call upon the testimony of Craig Kasten. Kasten agreed, but only under the condition the government offered him immunity. The prosecution declined to offer immunity, and in turn, Kasten invoked his Fifth Amendment right against self-incrimination. US Assistant Attorney Eli Richardson stated about not offering Craig Kasten immunity, “(He) is not a candid witness; he is not a reliable witness.”

In short order after acquisition of Doral Dental by DentaQuest, DentalQuest dismissed all senior management formerly associated with Doral. On March 23, 2005, Doral Dental (acquired by DentaQuest prior year) released an internal investigation which pointed the finger at Kasten and other former Doral executives for the deals with Sen. John Ford. Craig Kasten, nor any former director or management of Doral Dental, has ever been indicted for activities centering on the criminal bribery actions of John Ford.



One is left to speculate on the vetting process employed by the ADA in selection of their corporate collaborators. The concept of a centralized database for doctor credentialing on its face seems highly constructive. This would benefit dentists, as well as those legitimate parties seeking data for the credentialing process. However, the integrity of those “guarding the henhouse” of a doctor’s personal and professional identity must be beyond reproach.
 
 
References
1. http://www.ada.org/en/publications/ada-news/2016-archive/june/ada-wonderbox-create-comprehensive-credentialing-website
2. http://www.iclassifiedsnetwork.com/contentitem/74145/1259/tenncare-contractors-were-slow-to-divulge-deals-with-ford
3. http://nashvillecitypaper.com/content/city-news/fords-attitude-toward-doral-dental-makes-180-degree-shift-testimony-shows
4.https://news.google.com/newspapers?nid=1683&dat=20050324&id=_70aAAAAIBAJ&sjid=dEUEAAAAIBAJ&pg=6300,3161534&hl=en

Federal Court Decision on Dental Specialties- Interview with Frank R. Recker, DDS, JD

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




Dr. Recker began his career in general dentistry in Cincinnati, Ohio during which time he served as a member of the Ohio State Dental Board. When the laws prohibiting dental advertising were overturned in the early 1980’s, he was charged by the Board to rewrite Ohio’s advertising laws. In the 1980’s he left the clinical practice of dentistry and began a legal career consisting solely of dental issues, dental board defense, and the First Amendment Right of dentists. Since that time, he has appeared before over 50% of the dental boards in the country representing dentists, and has litigated every case, in state or federal courts, involving dental advertising.
Dr. Recker is a Life Member of the American Dental Association (ADA), the American Association of Dental Boards (AADB), a Fellow of the American College of Dentists (ACD), a Fellow of the American College of Legal Medicine (ACLM) and a member of multiple state and local dental societies. He is licensed to practice dentistry in Ohio and Florida, and admitted to the Bars of Ohio, Kentucky and Florida, as well as multiple federal courts throughout the country, including the United States Supreme Court.
 

INTRODUCTION

Dr. Frank R. Recker was the lead attorney representing plaintiffs American Society of Dentist Anesthesiologists (ASDA), American Academy of Implant Dentistry (AAID), American Academy of Oral Medicine (AAOM), and the American Academy of Orofacial Pain (AAOP) in the recent case against the Texas State Board of Dental Examiners (TSBDE) and Texas Society of Oral and Maxillofacial Surgeons (TSMOFS). Federal District Judge Sam Sparks ruled in favor of plaintiffs, in US District Court for the Western District of Texas, Austin Division (case no. A-14-CA-191-SS). Plaintiffs have a Constitutional right of commercial free speech. Judge Sparks’ ruling of January 21, 2016 can be accessed at this link: http://images.magnetmail.net/images/clients/AAID/attach/TEXAS_JAN_21_16.pdf
 
INTERVIEW
Dr. Davis:  Dr. Recker, I want to thank you for taking the time and effort to discuss with our readers, the merits and potential implications of this landmark case. As a former attorney/dentist member for the Ohio State Dental Board and also a practicing dentist, I know you place the public interest in a paramount position. How does Judge Sparks’ ruling positively impact the public welfare? How will the public benefit?
Dr. Recker:  The public benefits by having access to more truthful information about a dentist’s skill, knowledge and experience, which are reflected in certain credentials earned in various areas of dentistry. The Court recognized this, saw that the organizational plaintiffs were credible, bona fide and deemed worthy of holding themselves out as specialty organizations with the individual dentist/plaintiffs being entitled to hold themselves out as ‘specialists’ in their respective areas. Every practicing dentist understands that turf wars exist between various ADA recognized specialties. The regulation at issue protected ADA specialties, not the public.
You recall that the AAP came very close to changing its organizational name to include ‘Implant Dentistry.’ So you see an ADA recognized specialty nearly abandoning an underlying precept of the ADA specialty recognition process and attempting to falsely imply to the public that implant dentistry is an ADA recognized specialty, and a ‘subpart’ of the AAP. AAOMS also advertises as the ‘specialists’ in implant dentistry. These are misleading statements to the public, and made solely upon their respective opinions, and economics. There is no ADA specialty in implant dentistry, and implying so doesn’t change that reality and only risks confusing consumers.
There simply is no ADA recognized specialty in Implant Dentistry, Oral Facial Pain, Oral Medicine, and Dental Anesthesia. The public would clearly benefit if they knew that these specialties exist, but not recognized by the ADA.
As dentists who have been members of the ADA for many years, when we think ‘specialty’ we are conditioned to only think of the ADA. We don’t consider the fact that the ADA is a political body and its ‘Specialty’ decisions are ripe with considerations that should be excluded, such as competition, economic effects, and dental politics. The ADA specialty recognition process is effectively ‘dead.’ No other group will seek specialty recognition and be subject to such a process. There was a time, perhaps, that it made sense. But much has changed since the 1950’s, and the ADA House of Delegates made that painfully clear when it considered Anesthesia as a recognized specialty in October 2012.
Moreover, many potential ‘specialty’ areas of dentistry could never comport with the ADA requirements for ADA recognition. These areas include special needs dentistry, geriatric dentistry, cosmetic dentistry, forensic dentistry, and other focused areas that consist of real ‘specialists’ in those segments. Indeed, even a Board Certified (ABGD) general dentist might deserve the title (albeit perhaps a politically incorrect moniker) ‘specialist in general dentistry.’
 
Dr. Davis:  Numbers of doctors have expressed their concerns over this federal court decision. Some believe state dental boards have lost an ability to effectively regulate the practice of dentistry. Others fear any dentist who takes a weekend educational course at a Holiday Inn, may then be able to advertise a specialty status. Thus, dental specialty standing will have little to no meaning for the public. Can you address some of these concerns?
Dr. Recker:  First, there is no evidence that ‘dental specialty standing’ means anything to the public. When taking depositions of survey ‘experts,’ they give their own opinion (not having a clue about what an ‘ADA recognized specialty’ is or how it comes to be) that a ‘specialist’ in any area of endeavor is someone who has acquired additional education, training and experience in a specific topic or area. That is indeed a very true answer. When Courts declare the sole reliance on an ADA specialty for advertising purposes to be unconstitutional, it will not specify what a constitutional option might be. It cannot legislate a ‘fix.’ But based on the cases over the past 15 years, a ‘bogus’ credential or certification could not meet judicial opinions as to ‘bona fide’ and ‘legitimate.’
I try to tell my American Board of Dental Specialties (AADB) colleagues that a board ALWAYS has the right and the power to determine such a bogus credential as inherently misleading, because it has no underlying rigorous, objectively verifiable criteria upon which to deem itself a specialty credential. While a dental board may not be able to define ‘pornography,’ it will know it when it sees it, i.e., ‘specialist in cosmetic dentistry’ based upon a week long course provided by a company that produces veneers, etc.
 
Dr. Davis: Some dentists have expressed their frustrations over what may viewed as unfair insider influence, at American Dental Association (ADA) House of Delegates (HoD) meetings. Organizations petitioning for ADA specialty standing and fully meeting the standards of specialty status (via the ADA’s Commission on Dental Accreditation or CODA) have met with roadblocks. In the case of the specialty of dental anesthesiology, insider groups have stymied attempts at specialty standing for over three decades. Obviously, your clients must feel exasperated by entities which place protection of economic turf foremost. The recently formed American Board of Dental Specialties (ABDS) seems a response to this obstructionism. http://dentalspecialties.org/about-the-abds/
Dr. Recker:  I do see this point in the evolution of dental specialties as one that clearly offers the opportunity for advancement in training, education and experience in all non-ADA recognized specialties and for developing a fair and objective alternative for determining dental specialties. The ABDS (American Board of Dental Specialties) was formed to model the ABMS medical model. It is intended to be a joint cooperative between an independent entity (ABDS) and, hopefully, organized dentistry (ADA). The decisions of the ABDS relative to specialties will not consider competition, political issues, or turf wars. It will not be a decision made by a group of competitors who could be economically or politically affected by their own decisions. While such a statement is not intended to be critical of the ADA specialty recognition process, it is a simple reality.
While the four organizational clients in the Texas litigation have been critical of the ADA process, they simply came to realize that the ADA process is the ADA, trade association, process. If you don’t like the game, don’t play it. From a constitutional standpoint, the ADA can do whatever it wants relative to being deemed an ‘ADA recognized specialty.’ But when it comes to simultaneously deciding (by state adoption of only ADA specialties in advertising) the commercial free speech rights of dentists who may not even be members of the ADA, the First Amendment will intervene.

Dr. Davis:  In my reading of Judge Sparks’ ruling, and in particular the deposition of the TSBDE executive director, I was taken aback by an unwillingness or inability of state regulators to place the public interest to the fore. Defendants didn’t seem to make a case beyond a blind obedience to ADA rules and protocol. Please comment, Dr. Recker.
Dr. Recker:  The State Board of Texas couldn’t produce even one consumer complaint about dental advertising, of any kind. However, they did produce multiple complaints by dentists against other dentists! The Board did not concern itself with what might actually benefit the public, or assist the public in making informed choices. Just look at the dental anesthesia observation made by the Court.
A dentist/anesthesiologist in Texas was allowed to announce a practice concentration or limitation to dental anesthesia, but only if ‘General Dentist’ was included in the ad. That nonsensical requirement is hardly calculated to prevent the public from being ‘mislead,’ as opposed to protecting segments of the dental profession who want to monopolize the provision of general anesthesia services with the ‘help’ of the Board of Dentistry. Perhaps state boards will become more sophisticated and objective as a result of the FTC v NC Board decision. But I think it will take time for the average dentist to absorb developments in the law, and how their traditional thinking needs to evolve with the law.

Clearly, as the depositions indicated, members of the Board don’t know the details of the ADA specialty process. And interest into how that process works should be paramount to any dental board member before they limit the advertising by licensees to only ‘ADA recognized specialties.’ If they simply wanted to gain an insight into that process, they need only read the transcript of the 2012 HOD discussion of anesthesia’s application for specialty recognition. And in this age of obvious FTC scrutiny, I am amazed that there hasn’t been an antitrust challenge yet. But my concern is simply the First Amendment, and it provides sufficient protection to ‘unlock’ a state’s total deference to the ADA as the exclusive means to announce
 
Dr. Davis: I realize this case was adjudicated in federal district court in Texas. Other states like Florida and California have had similar judgements. Do you believe there will be protracted legal battles in numbers of future courts, or the will the ADA House of Delegates step-up and take more reasonable measures towards specialty acknowledgements?
Dr. Recker:  I am very hopeful that the ADA will acquiesce to the realities of the legal arena. That could result in ADA participation in the ABDS process. The ABDS is also hopeful that the ADA recognized specialties apply for ABDS recognition. A court would not challenge a state law that allowed specialists, recognized as such by the ADA or the ABDS, to advertise as specialists. Only when a law limits or prohibits commercial free speech will it be challenged. I would hope that protracted legal battles could be avoided by constructive dialog among the interested stakeholders in this issue. Ultimately, the ADA House of Delegates will need to decide if they want to work with the ABDS, or continue to resist any designation of specialty that is not their own. If states decide to continue to adhere to only ADA specialties, more states will pay more money in defending such a position. As we know, the States of California and Florida paid almost two million dollars collectively in their unsuccessful attempts to limit specialty recognition to only ADA determinations.

CONCLUSION
Dr. Davis: Dr. Recker, this has been a very detailed and highly insightful discussion. I realize legal issues in dentistry may seem overly complicated and “in the weeds”. However, it’s positive to see these matters fully open in the light of day. We all benefit from transparency in the process. I know numbers of readers may wish to contact you on matters relating to dental law.
Dr. Recker:  I feel strongly that any dentist wishing to learn about these issues should carefully read several relevant court decisions that explain the legal rationale underlying past First Amendment challenges about advertising credentials, and specialties. And, as a Life Member of the ADA, I completely understand a dentist’s ‘mother and apple pie’ allegiance to the ADA. But I also feel that diverting the specialty process to an independent outside entity will enhance, and prolong, ‘mother’s’ quality of life!
To that end, I would be happy to communicate with any person or group about these issues, via email or phone, time permitting. Recker@ddslaw.com; 800-224-3529.
Related:
Supreme Court of the United States Opinion - North Carolina State Board of Dental Examiners v Federal Trade Commission.

Contrasting Dental Medicaid Enforcement: Florida versus Texas

Dr. Michael W. Davis

Contrasting Dental Medicaid Enforcement: Florida versus Texas
By: Michael W. Davis, DDS

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

Introduction
Both Florida and Texas share similarities in that both states have long standing Republican state legislatures, state attorney generals, and state governors. Likewise, both states enjoy highly diverse ethnic and economic population demographics. However, each state handles enforcement of dental Medicaid very differently.

Dental Medicaid fee schedule rates in Texas are some of the highest nationally, while Florida’s are at or near the bottom.^1,2,3 Texas has attracted a huge bevy of corporate dental chain Medicaid providers, headquartered both in-state and out-of-state. Florida has a paucity of such interstate dental Medicaid corporate providers.

Although dental Medicaid fee schedule payouts are substantially higher in Texas, both states’ fee schedules fall below the UCR (usual and customary rates) of the average insurance company. With dental Medicaid remunerations below the overhead costs of most private dental practices, only a minority of licensed dentists sign on as Medicaid providers. Those doctors who obtain Medicaid credentialing generally do so to serve a limited number of patients on a charity basis, or work in the public sector. There are some disturbing exceptions.

There are a minority of “outlier” dentists whose goal is to scam the Medicaid program, and make little effort to cover their tracks.^4-7 Added to this number are many more devious Medicaid fraudsters, in which only skilled dentist auditors can identify.

Florida dental regulatory authorities have been quicker to turn over cases of suspected Medicaid fraud and abuses to their state’s attorney general’s office. This has occurred far less frequently in Texas, despite Texas being a far more populous state with far greater numbers of dental Medicaid providers.

Extent and Examination of Dental Medicaid Fraud and Abuses

We’ve already learned from the recent limited examination (four states) by federal Health and Human Services- Office of Inspector General (HHS-OIG), that approximately 9-11% of dental Medicaid providers are grossly over-the-top in abusive Medicaid billings.^4-7 These specific providers are termed “outliers”. Depending on the state reviewed, one-third to 50% is employed by large group practices (primarily corporate dental chains called “dental support organizations”, “DSOs”). One must remember, these are the worst of the Medicaid program violators, and not the majority with scams designed to “fly under the radar”. Outliers only represent the easy to identify, low hanging fruit.

Typically the cleverer Medicaid fraudsters (non-outlier cheats) upcode Medicaid services or provide gross over-treatment, which isn’t discovered as easily by a HHS-OIG audit.⁸ One common fraud technique is upcoding of dental sealants on permanent teeth, to multiple surface posterior resin restorations.⁹ Others place multiple steel crowns on deciduous (baby) teeth, which have minimal to no evidence of dental decay, or are soon to naturally exfoliate (naturally come out).^10,11  Another favorite dental Medicaid scam has been the service of a pulpotomy on deciduous teeth (baby tooth root canal), into teeth with little caries (tooth decay) near the tooth’s nerve.^12-14 In fact, the author has specifically heard this referenced as a “preventative pulpotomy”, in interviews with former corporate dental employees. Of course, the bitter cynicism and avarice towards the patient’s welfare by this terminology of “preventative pulpotomy” shouldn’t be lost on the dental profession, auditors, or the general public.

­­­­­­­

Perhaps unique to Texas, we saw an entrenched old-boy element of the dental profession work to alter and amend standard accepted dental terminology, to expand Medicaid eligibility. Texas Medicaid orthodontics (corrective movement of teeth) eligibility required “ectopically erupted teeth”. Insiders simply changed the Medicaid definition of “ectopically erupted tooth” from the dental industry standard definition, to include any tooth which may be malpositioned, angled, tipped, slightly rotated, etc.¹⁵  These schemers circumvented the intent of the law, and lined their pockets either through providing direct Medicaid services or for-profit courses to dentists, on how to beat the system.¹⁶

An additional component of Texas dental Medicaid fraud-by-design was Medicaid payments not for completion of an orthodontic case, but for payments on a per-visit basis. Obviously, financial incentive was established to continually yo-yo patients in active treatment, in and out of a dental office. No consideration was afforded to transportation challenges for disadvantaged children. Further, there was a serious disincentive to complete orthodontic treatment in a timely manner, in the patient’s best interest. In the years 2009-2011 Medicaid orthodontic payments in Texas outstripped the payments for all other 49 states combined.¹⁷

Texas declined to provide dental Medicaid oversight and monitoring on the state level, and delegated this responsibility (for a significant fee to the taxpayer) to the highly discredited Xerox Corporation.^18,19  The federal HHS-OIG agreed with Texas, that Xerox failed in their contractual obligations of dental Medicaid oversight. However, the federal Inspector General stated the State of Texas is ultimately responsible for the disturbingly remiss oversight.²⁰

In fact, services of Xerox were so egregiously lax, that’s it’s difficult to see this as anything other than political pay-to-play. All the while, dental Medicaid fraudsters, both large and small were free to ply their trade in fraud-craft. Texas state authorities provided the illusionary mantle of oversight via a wasteful model of collusion, with big business/big government crony capitalism.

The most common Medicaid unlawful scheme of non-profit dental clinics (federally qualified health centers or FQHCs) is via abuse of “patient encounters”.²¹ To date, we’ve only see this frequent Medicaid scam addressed by government regulators to much extent in Washington and New York.^22,23  This particular abuse of taxpayer money is a favorite with certain public health clinics, Native American title 638 clinics, and non-profit healthcare facilities. Generally we don’t see rank-and-file healthcare providers managing this particular fraud mechanism. Usually fraud is generated though the unlawful systems of directors and managers (some are physicians and dentists), who enjoy very inflated salaries and benefits, by cheating programs designed to serve the disadvantaged.

To its credit in Texas, the non-profit United Medical Centers Board of Directors (Maverick, Kinney, and Val Verde Counties) recently terminated employment of their Chief Executive Officer and Medical Director after an internal investigative audit.²⁴ Unfortunately, I expect another miracle from the waters of Lourdes, before I anticipate Texas authorities to file a civil or criminal case against these Medicaid cheats within the public sector.

One would like to assume nonprofit organizations are distanced from scamming taxpayers. However, that assumption has proven inaccurate and very dangerous. Schemes defrauding the dental Medicaid program are highly pervasive, lucrative, and relatively easy to pull off. Dental Medicaid fraud and abuses are ubiquitous both in the private and public sectors. The largess which comes to those who defraud American taxpayers from dental Medicaid scams has in fact become an entrenched and fully accepted dental industry model of business.  

Handling and Mishandling of Dental Medicaid Cases

Both Texas and Florida have historically operated under a failed enforcement model of “pay and chase”.^25,26 Medicaid payments are made to providers (or their corporate beneficial owners, usually DSOs) year after year without question or examination. If an audit is eventually generated, it then becomes a massive records undertaking. Government regulators usually lack funds to retain meaningful dentist auditors, to thoroughly review patient records and billings. Behind the 8-ball, government prosecutors nearly always settle cases for pennies on the dollar, and no admission of wrong-doing by violators.

By contrast, the dental insurance industry mandates pre-authorizations prior to a provider billing for a vast number of patient services. Questionable services and payments are better “nipped in the bud”. Payments are better held in check, not as easily getting out of hand.

Payment holds from the private insurance industry generally are upfront from the onset, on an individual case-by-case basis. By contrast, Medicaid payment holds are usually well down the road, and may represent many hundreds of thousands of dollars or even several million dollars. Medicaid payment holds are formulated by deviations in billings, which are assumed to represent patterns of fraud and abuse. Obviously, a long-term pattern of abusive billings must be established, prior to control of taxpayer (public) monies. Private insurance companies, which have their own set of difficulties, rarely allow fiscal problems to build to this crisis level.

Texas

Dr. Tuan "Terry" Truong

The government’s prosecution of Dr. Tuan “Terry” Truong is a case worth examination.²⁷ Dr. Truong was employed by Kool Smiles Dental in Abilene, Texas, for over a year. After conviction for Medicaid fraud, Dr. Truong was fined and sentenced to federal prison for 18-months. The statement released by Kool Smiles Dental acknowledged their full cooperation with the government’s investigation and prosecution. Yet, Kool Smiles Dental monitors daily production metrics for each of their dentist providers. It seems inconceivable, corporate management didn’t fully realize the inappropriate and unlawful activities of Dr. Truong at a very early stage. Yet, government prosecutors were very willing to accept a low level dentist Medicaid cheat for a guaranteed felony conviction, versus those pulling the strings at higher levels. One is left to wonder what real rats could be convicted, if Dr. Truong were offered a deal to finger corporate management at the DSO level, or even private equity level.

Former Texas Attorney General (today Governor) Greg Abbott gave much ballyhoo to his settlement deal with alleged dental Medicaid fraudster, Dr. Richard Malouf for $1.2 million dollars.²⁸ This settlement only represented pennies on the dollar for the true extent of the alleged fraud (many $10s of millions of dollars). Naturally, there was no admission of wrong-doing by Dr. Malouf, former owner of All Smiles Dental. 

Astroturfing by the Dental Support Organization Industry

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

“Astroturfing is the practice of masking the sponsors of a message or organization (e.g., political, advertising, religious or public relations) to make it appear as though it originates from and is supported by grassroots participant(s).”^1. -Wikipedia 
Introduction
It is imperative the so-called “dental support organization industry” (DSO industry) employ astroturfing techniques, as their entire business model is formulated on gross misrepresentations.^2-12 In order to obfuscate the rule of law relating to the unlicensed and unlawful practice of dentistry, these corporate entities must misrepresent themselves as only providing limited nonclinical support services for their chains of dental practices. This is patently false, and has been challenged by numbers of legal rulings and studies. In reality, DSOs either represent the true beneficial owners and clinical management for vast numbers of dental clinics, or they provide management for the private equity beneficial ownership. Doctors only serve in a limited role as facade nominee owners. The word “support” is intentionally designed to deceive. The lies go on.

Forms of DSO Astroturfing
There are four basic designs of astroturfing utilized by the DSO industry. At the most basic level is DSOs placing bogus positive patient reviews with online rating services or their website. The next astroturfing technique involves individual dentists who openly advocate for the DSO industry. The third method employs hired public relations and public advocacy specialists. The final level, and often most challenging to prove, is hired lobbyists who direct public policy through directly influencing government agencies and government elected officials. 

Bogus online Patient Reviews
Although this form of deceptive advertising is unlawful, violators are rarely discovered or sanctioned.¹³ The DSO utilizes existing employees or a retained service to generate positive patient reviews for dental services with online review sites, and/or their own website. Often the specific language utilized in the review is a tip-off, that the bogus reviewer is truly not a clinical dental patient, but working in the dental field. Certain DSOs have such a disturbingly high degree of employee turnover and negative staff retention rates, they now resort to posting bogus positive reviews of current or former employees on employment websites such as Glassdoor.com and Indeed.com. One will generally see multiple low rated “one-star” reviews, intermixed with over-the-top glowing “five-star” reviews. Obviously, corporate astroturfing is in play. 

Individual Dentists Espousing the DSO Agenda
On occasion, state legislatures will take up the cause of regulating and restricting the DSO industry to benefit the public interest. Bills will be presented to establish enhanced transparency in true beneficial clinic ownership. Clarification will be added to protect the doctor/patient relationship (contract), and patient rights such as the informed consent process, and always holding the patient’s interests paramount in clinical decisions. Truth in advertising and lending will be advocated. Mechanisms for bait-and-switch schemes will be discouraged.

Arizona’s Dental Dangers: Reports by ABC15 News Phoenix

“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
 
Arizona’s Dental Dangers: Reports by ABC15 News Phoenix
By Michael Davis, DDS

This year investigative reporters, Dave Biscobing and Shawn Martin presented a series of very insightful reports for ABC15 News out of Phoenix, AZ. These investigative journalists openly challenged policies of the Arizona State Board of Dental Examiners (ASBDE). They took their investigations directly to the state legislature and governor. In our modern era of diminished resources for investigative journalism in the media, these local media market reporters exemplify the highest standards for service to their profession and the public interest.
The entire series of “Dental Dangers” stories can be accessed via this link:
http://www.abc15.com/dentaldangers
Mrs. Biscobing and Martin have detailed problems as diverse as the protective “old boy’s club” for deviant dentists, within the state dental regulatory board. They exposed the dental board’s failure to disclose public record material on dentist violators. Their report on unlicensed and unregulated dental laboratories was also disturbingly informative. Patients and doctors may have no idea from what nation, and under what safeguards, their dental prosthetics may be fabricated. In fact, ABC15 uncovered that Arizona failed to provide criminal background checks for newly licensed dentists.
This reporting goes far beyond the interests of Arizona. It has significant merit nationally. Dental dangers to the public welfare can be found in most states. Our dental public regulatory agencies, which are supposed to serve the public interest, are often primarily serving a variety of other interests. This investigative reporting did in fact stimulate the process for positive changes to the operation of the ASBDE, although much more is required.
The courageous reporting of Mrs. Biscobing and Martin exposed elements within the state legislature and governor’s office, which discounted the public interest. That unfortunate fact came forth loud and clear. We witness a form of journalistic integrity, which is too infrequently seen on the national media stage, let alone a local media outlet.
We all owe a tip of the hat to Dave Biscobing, Shawn Martin, and the entire crew at ABC15 News in Phoenix. I encourage Dentist the Menace readers to click on the above link, and enjoy an inspired series of reports on dental investigative journalism.

Grassroots Efforts of Texas Dentists Challenge Activities of the American Dental Association

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.
 
 


A newly formed group of grassroots Texas dentists has challenged activities of the American Dental Association (ADA), with the Association of Dental Support Organizations (ADSO). In an open letter to ADA House of Delegates members, Concerned Dentists of Texas, Inc. has expressed their concerns about ADA leading officials meeting with ADSO representatives. The ADSO has gone so far as to highlight these meetings in their public online marketing. Concerned Dentists of Texas contend these clandestine meetings were unsanctioned and violate established ADA rules and protocols.  They also express that the ADA’s appearance of collusion is highly evident and problematic.
Membership of the ADSO raised more than a few eyebrows. Of note in the ADSO membership is Aspen Dental Management, Inc. Aspen Dental in recent months has formally signed individual and separate legal settlement agreements, with the state attorney generals of Massachusetts, New York, and Indiana. These settlements allege specific violations ranging from unlicensed practice of dentistry, violations to consumer protection laws, false and misleading advertising, violations to full disclosures in consumer borrowing, bait-and-switch business schemes, etc.
Another ADSO member, Heartland Dental Care, Inc., in 2008 settled with the federal government for alleged Medicaid fraud for falsification and misappropriation of doctors’ Drug Enforcement Agency (DEA) numbers. This DSO also settled with the State of North Carolina in 2011, for alleged unlawful attempt to purchase a dental practice.
To follow is the open letter of Concerned Dentists of Texas, Inc. to ADA House of Delegates membership:

Concerned Dentists of Texas, Inc..

October 27, 2015
Dear ADA Delegates and Alternate Delegates,
Approximately 80% of ADA members practice as independent dentists in small local offices. We are a concerned part of that group. There is an effort by our ADA to support a corporate form of dentistry that we believe is counter to the best interests of our members and our patients. We must ask ourselves, will the ADA support its members or will it support organizations controlled and owned by hedge funds, private equity firms, and public pension plans? The increased proliferation of this type practice model poses serious risks to our 175 year established philosophy of patient care and the doctor-patient relationship.
By not taking a stand to inform and represent the majority of its current members the ADA actively supports the DSO philosophy. This is a membership gamble that the ADA cannot afford to take.
See attachments (pages numbered 1-4) documenting these major changes in the focus of ADA activities:
Page 1 &2. Breaking News Notable Joint Meeting: ADSO & ADA … Several workforce group meetings were held with ADSO (Association of Dental Support Organizations) and ADA representatives seeking a memorandum of understanding.
Page 2 & 3. The last 2 pages of a presentation asking for “collaboration”, “harmony”, and “input” between the ADA and DSOs given at the 2015 ADSO Summit that demonstrates the position ADA is taking regarding the DSOs mode of practice.
Page 1 & 4. The ADSO website screen shots showing proof of this presentation given by the ADA at the 2015 ADSO Summit and then subsequently removed from the website while the other presentations remained.
These changes are affecting the future of the private practice of dentistry and are occurring without bringing it before the House of Delegates for your vote or discussion.

• What does our House of Delegates want in regards to support of the private practice of dentistry?
• What do 80% of our practicing members want in support from their Association? Will the Tripartite support its members?
• What are our ADA candidates’ opinions and beliefs on the future models of dentistry?
• Will they be willing to support the majority of our ADA members and their autonomy?

Over five years of steadily decreasing membership will not be corrected by failing to inform and represent our current practicing members. Rather, the reversal of the trend will be affected by building relevancy and reason for belonging based on representation, transparency, accountability and adherence to long-established principles of professionalism, patient care, and enhancement of the traditional doctor-patient relationships.
Thank you for allowing us to express our concerns and personal opinions. Opinions are our own, but facts are facts. Please look forward to a blog, Concerned Dentists of Texas, which will further address these issues. The blog will serve as an informational source and reference site in order that members may stay informed. Please feel free to contact us at concerneddentistsoftexas@gmail.com.
Sincerely,
Concerned Dentists of Texas, Inc.
Attachments

Link to the entire letter including attachments

DSO Business Model Includes Violating State Labor Laws

 
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.





David Sohn is the principal attorney at SOHN LEGAL GROUP, P.C., which prosecutes and defends employment and business disputes on behalf of individuals, small businesses, and non-profit organizations.  Prior to starting his own law firm, David worked at several prominent national law firms in San Francisco.  He received his bachelor’s degree in Economics from Stanford University and his law degree from Harvard Law School.  Due to the successful results he has achieved for his clients, David has been recognized as a Northern California Super Lawyer by Super Lawyers Magazine. David can be reached at 415-421-1300 and david@sohnlegal.com.
 
INTRODUCTION
David Sohn is an attorney in San Francisco specializing in employment litigation matters. Last year, he represented a dentist in his wage and hour lawsuit against Western Dental Services, Inc. (“Western Dental”) for misclassifying him as an exempt employee and not paying him overtime wages and providing proper meal and rest breaks, among other things. Mr. Sohn tried this case in San Francisco Superior Court against an army of big law firm lawyers hired by Western Dental – and prevailed. As a result of his trial victory, the overwhelming majority of dentists in California are now misclassified. They should be receiving overtime wages, proper meal and rest breaks, and all of the benefits and protections of California’s employment laws.
The case is entitled Nanda v. Western Dental Services, Inc . (Case No. CGC-13-529601).

Dr. Davis: Mr. Sohn, I sincerely thank you for taking the time and effort to address matters of this case. I understand much of your legal work involves labor workplace rights. The public may not appreciate how even a licensed dentist may have their rights violated in the workplace. Could you give our readers an overview of the merits of this case and how your client was damaged? 

Mr. Sohn: Thank you, Michael, for giving me an opportunity to discuss with you and your readers my trial victory against Western Dental. This is a very important, game-changing case that all dentists and to-be-dentists need to know about so that they understand what their workplace rights are.

When I decided to take on this case back in 2013, I didn’t know anything about the dental industry. I took it on because I saw a very interesting legal question. That question was: are dentists employed by Western Dental compensated in the form of a “salary?” Western Dental compensates its dentists by a fixed daily rate and/or a percentage of their production. They are not guaranteed in advance a minimum weekly or monthly amount of compensation.

This legal question is important because in order for dentists and other licensed professionals to be exempt from all of the benefits and protections of California’s employment laws – such as overtime wages and proper meal and rest breaks – they must be paid in the form of a “salary.” If they are not, they must be provided these benefits and protections.

California law does not provide a definition for the term “salary.” Instead, California courts look to federal regulations for the definition of “salary.” The pertinent federal regulation, 29 C.F.R. § 541.602(a), states that an employee is paid on a “salary basis” if he or she “regularly receives each pay period on a weekly, or less frequent basis, a predetermined amount constituting all or part of the employee's compensation, which amount is not subject to reduction because of variations in the quality or quantity of the work performed.” This same federal regulation also explains that if an employee is ready, willing, and able to work, but he or she does not work due some reason occasioned by the employer, he or she is not being paid on a “salary basis.”

At the conclusion of trial, the judge held that the dentist I represented was not paid in the form of a “salary.” The dentist never received on a weekly, or less frequent basis, a predetermined amount of compensation which was not subject to reduction based upon variation in the quality of quantity of work performed. He was only paid for the days that he worked and on occasion received a percentage of the production he generated. On numerous occasions, even though he wanted to work, if he was not called into work, he was not paid. Given these circumstances, he was entitled to overtime wages and proper meal and rest breaks like other non-exempt staff employed by Western Dental.

As a result of the judgment issued in my case, all dentists – and for that matter any licensed dental healthcare professional (such as orthodontists, periodontists, etc.) – in California paid on any basis other than a salary basis are “non-exempt” employees who are entitled to overtime wages, and proper meal and rest breaks.   

Dr. Davis:  The defendant in this case, Western Dental, is the largest employer of dentists in the state of California. They also operate dental clinics in Nevada and Arizona. They are the largest provider of dental Medicaid services for California. As large of a dental industry operation as is represented by Western Dental, is it reasonable to speculate on the pervasiveness of dentist/employee workplace labor violations (both in Western Dental and the dental service organization (DSO) industry, as a whole)?   

Mr. Sohn: During the course of my case against Western Dental, I discovered that Western Dental’s approach to how it compensates its dentists is not unique. I spoke to a number of dentists and specialists who worked for other practices large and small, including other DSOs and small private practices, and the impression I received was that the overwhelming majority of dentists and specialists in California – and in the country – are paid on a similar non-salary basis. That’s when I realized my case could have significant industry-wide consequences.

EXCLUSIVE: Dental Service Organizations (DSO’s): Truth Revealed by Financial Insider

June 25, 2015

By: Michael W. Davis, DDS

Dr. Michael W. Davis maintains a private general practice in Santa Fe, NM. He chairs the Santa Fe District Dental Society Peer-Review Committee. Dr. Davis is active in dental care for disadvantaged citizens, and expert legal work. His publications and lectures are on ethical and whistleblower issues within the dental profession, as well as numbers of clinical research papers. He may be contacted at: MWDavisDDS@comcast.net

Dr. Kevin Cain is an Assistant Professor of Management in the James M. Hull College of Business and guest lecturer in practice management in the College of Dental Medicine at Georgia Regents University. He teaches courses on strategy and entrepreneurship and does academic research in the fields of strategic management, organizational theory, and healthcare management. He also serves on a task force with the Georgia Dental Association and teaches continuing education courses focused on the business of dentistry. Additionally, he is a co-founder and board member of several companies serving the dental industry. He earned a PhD in Business Administration at the University of Georgia, an MBA from Wake Forest University and a BA in Economics from the University of North Carolina at Chapel Hill. He can be contacted at: kevin@kevinwcain.com.
 

Introduction from Dr. Michael Davis-

Dr. Kevin Cain has an interesting and established history in study of the dental industry, and particularly dental service organizations (DSOs). He does research and has given lectures on the risks this business model presents against the public welfare and the integrity of the dental profession. Dr. Cain effectively counters the private equity spin of unlicensed corporate managers keeping at arm’s length from clinical decisions, within the doctor/patient relationship. He confronts DSO industry misrepresentations, of which there are many, head on.

Interview

Dr. Davis: Dr. Cain, please relay the personal story of your mother, a practicing nurse, and the degradation of her once honored profession by corporate health care. How did that affect you personally and influence your fields of academic research?
Dr. Cain: My mother has been a nurse within the same healthcare organization (and its predecessor hospitals) for 40 years. Since the late 1980s, she’s seen her role increasingly shift from being a caretaker to being part of a production line. The healthcare group she works for – mind you its a not-for-profit – sets performance benchmarks for pre- and post-operative care that her and her colleagues must meet. Additionally, her organization implemented EPIC Systems as its EMR provider last year and the time it takes to document patient care further decreases the quality of care she can provide patients.
She is no longer a happy nurse, and actually tried to dissuade my sister from majoring in nursing. At the center of her frustration with her company is its inability to treat patients as idiosyncratic. There are aspects of her job that, if not performed adequately, can jeopardize patient lives. However, her company pushes for efficiency and sets limits on the amount of time allocated for intake. When you generalize patients to the extent that her company has, and minimize the time nurses have to gather information about patients, it is inevitable that those nurses will miss something critical.
My mother’s frustrations with her organization have really shaped my perspective of the dental industry. She and many other healthcare professionals I have spoken with are disillusioned by the current state of their industry. The drive for growth and profitability in healthcare has superseded the drive for quality care, and I do not want to see the dental students I have the pleasure of interacting with here face the same disillusionment for their entire careers. It is imperative that the dental community protects the general dentist from becoming marginalized in the same manner as the primary care physician.
My research on the dental industry is driven, primarily, by the desire to help dentists remain clinically autonomous. In order for the dental profession to maintain its clinical autonomy, practitioners need to understand how institutional forces shape industries. In my field, we study institutional isomorphism – that organizations within an institutional environment look the same – because it helps explains how mimetic, coercive, and normative forces influence those organizations. There are currently no coercive (regulatory) forces preventing the DSO model from becoming the de facto dental model in the U.S., and there is very little normative pressure coming from private practice dentists to change that course.
With regards to mimetic forces, you have baby-boomers selling their practices to DSOs because a friend did and got more money than they would have in a private transition, and you have dental students – year after year – going to work for DSOs because they have been told that the high guaranteed salary is the quickest way to pay off student debt. Meanwhile, a few “business savvy” – or opportunistic – dentists are building their own DSOs and acquiring other practices because they see founders of the large DSOs driving twenty-five million dollar classic Ferraris and want in on that kind of wealth. These mimetic forces are shaping the industry, and the confluence of these forces is leading dentistry down a familiar path (i.e. optometry, pharmacy, primary care medicine).
 
Dr. Davis: We continually hear and read the misrepresentations from DSO private equity managers and their hired supporters that they keep at arm’s length from the practice of dentistry. Yet, we know they establish production quotas and bonuses upon employee dentists. Every doctor’s production metric is monitored on a daily basis. Each clinic’s bank account is swept clean, at least two to three times weekly. They determine clinic scheduling, staffing, as well as purchases for dental materials, dental laboratories, and dental equipment. State regulatory dental boards and even the Federal Trade Commission (FTC) seemingly have bought into these outlandish misrepresentations. (1) What private equity firm, whose sole responsibility is towards its shareholders and not patients, would not logically control every aspect of its business, inclusive of the practice of dentistry? (2) Why do we see so little regulatory enforcement for the unlicensed and unlawful practice of dentistry? Is it a matter of laziness, corruption, or some other factor?
Dr. Cain: The short answer is that private equity (PE) firms routinely leave control of their investments to the top management of those companies, but charge those managers with generating the best possible returns. The pressure of those expected financial returns can drive decision-making by managers of those companies, which is where you would see diffusion of pressure from top managers to the level of the organization at which revenues are generated. In the DSO model, that level is the dentist. To think that PE investments in the practice of dentistry, or the legal structure – where the DSO and the professional corporation that employs the dentists are connected only via a management service agreement (MSA) – keep DSO dentists immune to this pressure for financial returns is naïve. I would venture to guess that most dentists working for a DSO would tell you that they are not told to do certain procedures or pressured based on performance, but the psychology of seeing their production and their office’s production ranked against other associates and offices in the DSO probably provides enough of a catalyst to pressure driven, competitive individuals (generalizing here based on current crops of dental students) to alter treatment plans. That pressure might cause the best-intentioned dentists to compromise their training and ethics in order to climb rankings or achieve desired results (or bonuses). Because continuing education for DSO dentists is provided at corporate headquarters in some companies, treatment plans, labs, and materials used across the company probably begin looking very similar – and profitable – over time.