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Scary Medicaid conviction.
Started by Simiam
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What a loser. The first link is no good. The second works.
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That article is the size of the US. In short, how does someone avoid this?
Don't take medicaid.
I've read through the Dentaltown thread and unless you are superhuman and don't make mistakes, the threat of prosecution for fraud will always be there. It also appears that John Brownlee, the Attorney General who prosecuted the case, was out to make a name for himself. He is currently running for Attorney General of Virginia! http://www.johnbrownlee2009.com/
Under the current medicaid system, the risk/reward ratio doesn't make it a worthwhile endeavor. Sure you help the indigent, but reimbursement rates are extremely low, red tape is high, and if your charts aren't meticulously correct, you face the risk fines, losing you license, and/or jail time.
A D-town member made good suggestion for treating indigent patients without government interference. Call your local dental society and ask them to provide you the names of people without the means to afford dental care. Treat these patients pro bono. This way you provide charitable service without big brother looking over your shoulder.
This is a perfect example of why dental schools don't like predent applicants who go into dentistry motivated only by money. Dental school adcomms are trying to prevent things like this from happening. It ruins the reputation of the dental profession.
You will never be prosecuted for fraud as a result of a mistake. Probably sued for malpractice but not prosecuted for fraud. Mistakes are unintentional. Fraud is not. There is a difference...one will certainly result in the end of a career in dentistry and prison time whereas the other will not.
disclaimer: I am taking my information from online, anecdotal, one-sided evidence and am only a predent (i.e. zero real world dentistry experience).
I agree with you. However, even taking my disclaimer into account, if only a small portion of what I have read bears any truth, it appears that the government makes little or no distinction between mistakes and fraud when auditing. It may simply depend on the 'human influence': how big of a hardazz is the auditor/prosecutor?
I plan to provide care for the underserved, but will do so on my terms, not the government's. The inefficiencies and wa$te of gov't beauracracy, excessive red tape, and the threat of fines (or worse) for mistakes make the current Medicaid system too much of a risk to to be worthwhile. imho.
Seriously?
Your assistant took 2 bitewings but accidentally codes it as 4 bitewings. You may have overlooked the mistake at the end of the day because you have 45 charts to get through and your eyes are tired so the claim gets signed by you and sent off to Medicaid. Government shows up accusing you of fraud because they paid for 4 bitewings and your chart shows you only took 2. Good luck proving it was a mistake. Actually they can get on your case for the opposite situation as well - you take 4 bitewings but it is mistakenly gets coded for 2 so you got paid less for your service but decide to overlook it as a mistake. Government will still show up and accuse you of fraud for taking 4 but coding for 2. It's a lose-lose sitaution.
Fraud is a crime whereas a mistake is not. In order to prove that a crime such as fraud was committed, the prosecution, which in this case is the U.S. government, has to prove that you had the "intent" to commit fraud. The burden of proof is always on the Government not to mention that the evidence has to be "beyond a reasonable doubt" which is a pretty high standard to meet. You are innocent of a crime until proven guilty. If you make a mistake, where was the intent? The simple answer is that there was NO intent and the government will never find any evidence of it because a mistake by definition implies that it was not intentional. Hence, government prosecutors WOULD NEVER bring a case against you if they know they cannot put forth evidence that you had "intent" to defraud the government. That is a losing battle and they know it. That would be political suicide for their careers. Any prosecutor who brings charges of fraud without evidence of intent must have been asleep during classes in law school and will probably be laughed at by the judge after he throws out the case. Evidence of "intent" is basic criminal law 101. How do I know all this? It's because I went to law school before I became a dentist.
If you overbill, the government will just ask that you pay it back and you may possibly have to pay a fine but in many cases, if it's an honest good faith mistake and appears that way, a fine is not necessary.
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But isn't the case of Dr. Shelburne entirely contradictory to what you just said? From my understanding of the case reading the links the OP posted, he made quite a few mistakes when billing Medicaid (both overbilling and underbilling). The evidence of intent they used against him was to fund his supposed "lavish" lifestyle by pointing at his houses and cars. Obviously a doctor is going to appear to live a "lavish" lifestyle compared to the 14 Joe the Plumbers that are sitting in the jury, which ultimately led to this conviction.
I'm just curious how you would explain that case... or rather, why you don't seem at least a little bit scared of accepting Medicaid (if you plan to in the future or if you already do) because of how the system can just completely screw you over for lack of a better term. Personally, it's something that I have to now think twice about as I really wanted to accept Medicaid patients in my future practice because I have had first hand experience living on Medicaid.... but that's a different story for a another time.
It is too premature to conclude that there is a contradiction because none of us know all the facts of the case or the evidence that was presented. All the information that we know is stated in the articles and unfortunately, they don't discuss all the evidence and so there is not enough information to come to a conclusion of any kind. Besides, it's not necessary to debate whether or not "intent" needs to be proven for a fraud to have been committed because you can easily look it up in any law book where it is printed in plain English. I don't make the laws. I'm just re-stating what is stated in those law books that every law student studies while he/ she is in law school. But after examining what is stated in the articles from a legal critical eye, I have to admit that there is something fishy about his situation. Dr. Shelburne doesn't deny that there are billing anomalies. He concedes that they occurred but claims that they were all mistakes and billing errors. The amount of the overbilling was roughly $263,000 and the victims appeared to be all children. There were 143 billing statements that contained these billing anomalies. I can tell you that the majority of the dental procedures performed on children are relatively inexpensive compared to adults with the most expensive procedures costing roughly a few hundred dollars. The repertoire of dental procedures performed on children is very small compared to adults. It usually consists of fillings, strip crowns, stainless steel crowns, pulpotomies, and pulpectomies. The re-imbursement from Medicaid for these procedures generally ranges from $75-200 depending on which state you are in and what procedure you are performing. But in order to "mistakenly" overbill Medicaid $263,000 for these procedures as Dr. Shelburne claims, he would have needed to commit the same overbilling anomaly at least 1,315 times! That's way too many times for a simple billing anomaly to occur in order to claim that is was just a simple billing mistake. When was the last time you committed the same "mistake" 1,315 times and not notice that you were doing something wrong? The odds of a true mistake occurring 1,315 times is unlikely and very doubtful. The most reasonable explanation for a billing anomaly to occur that many times is if it was done intentionally. To commit the same act 1,315 times and claim that it is a mistake is a little suspicious in my opinion. And that's probably why the jury had a hard time believing that this "billing mistake" was truly a billing mistake. On top of that, anomalies in 143 billing statements resulted in the overbilling of Medicaid by $263,000. That means that each billing statement was overbilled on average by $1,839. That's a huge amount of money to go unnoticed as a so-called mistake, especially when it occurs on a pediatric patient with so few teeth! For Dr. Shelburne to claim that such a large amount of money to go unnoticed as a mistake 143 times is simply too ridiculous for anyone to believe. Furthermore, true billing mistakes occur randomly with no pattern. Strangely, these billing anomalies that Dr. Shelburne claimed were "mistakes" had a pattern…it only occurred with his pediatric patients. How in the world does that happen?! I've never seen a billing error that occurs ONLY with pediatric patients in a general dentist's private office where both adults and pediatric patients are treated! A true billing error doesn't discriminate…it would occur all over the patient pool among both children and adults. I've never seen a so-called "billing error" discriminate against his adult patients and therefore, only occurs with his pediatric patients. That having been said, it is unlikely that any reasonable person could conclude that these billing anomalies occurred randomly, and therefore, they must have occurred INTENTIONALLY! For those reasons, I can see why the jury voted to convict Dr. Shelburne.
I also find it puzzling that Dr. Shelburne states that he is unsure of whether he is going to appeal his case. A person who is truly innocent would be outraged if he felt he was convicted unfairly and wouldn't hesitate or think twice about appealing the conviction. Instead, he accepts his punishment in his speech to the jury…similar to the way a guilty person accepts that he has been caught and doesn't bother to fight the accusations. His behavior is odd for a truly innocent man and more closely resembles a guilty man. His behavior is so unlike any of the innocent people who were wrongly convicted in all those cases I read about in law school.
As for your question of why I don't seem the least bit scared of accepting Medicaid, I honestly don't know. Perhaps it's my background in law school that gives me a level of comfort with the criminal legal system. Although the legal system isn't perfect, I know that it's rules are designed to be in favor of the defendant which in this case is Dr. Shelburne. That is why in our legal system, it is the burden of the prosecutors to prove that the defendant is guilty and NOT the burden of the defendant to prove that he is innocent. In other words, the prosecution has to provide all the evidence of guilt and defendant doesn't have to lift a finger to prove his innocence. Furthermore, the evidence has to prove guilt "beyond a reasonable doubt" which any lawyer will tell you is extremely difficult. How do you think O.J. Simpson went free? For the jury to convict Dr. Shelburne, the prosecution probably provided so much overwhelming evidence that Dr. Shelburne was guilty of fraud that all 12 jurors were convinced of it. Trust me…it is hard to convince 12 separate jurors that a person is guilty. If even one juror thought Dr. Shelburne was innocent, he would not have been convicted. The fact that all 12 jurors agreed that Dr. Shelburne was guilty says a lot about the convincing nature of the evidence against him. But again, this is all speculation on my part as I was not there to witness the trial. We just have to trust that the jurors came to the right conclusion. Sorry for the long post but it is a very interesting case.
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The prosecution used RICO laws to freeze his assets before he was convicted, or even sent to trial for that matter. How was he supposed to defend himself? I don't know too many lawyers willing to work for free or IOU's. How is he supposed to appeal with no money?! He still has not paid off his legal bills and is taking paypal donations.
As for how can you not notice X amount of money it all depends on time. If small amounts of money are missing/over/underbilled then it is harder to notice. It is possible to keep making the same mistake if you didn't know it was a mistake to begin with. Just look at the grammar. Many people have been spelling, mispronouncing, or incorrectly using words for their whole life.
Check out this story http://www.lotterypost.com/news/140429. It's about a woman who stole more than 2.3 million from Great South Bay Surgical Associate. She was their office manager and managed to siphon millions from these doctors. How would you explain that? The doctors obviously knew she was stealing because how can you steal 2.3 million unnoticed, right? How could Madoff orchestrate a 50 billion ponzi scheme without people noticing, right? Those people must have known and wanted to lose their life savings!
As for the line of thought that the government won't go after you unless you are guilty and they can prove it... Hahahaha! I don't even know what to say about that one. There are many people on death role or life in prison for crimes where they can be exonerated by DNA evidence taken years ago. Guess what... the government is fighting those cases tooth and nail. People have been executed and later exonerated. Also think of politics and and corruption. http://www.msnbc.msn.com/id/29142654/.
I am not arguing that Dr. Shelborne is innocent, but I'm just pointing out that your guilt because "why would the govt go after an innocent person", and "why won't he appeal" is bogus. I just hope the govt doesn't come after you for billing irregularities.
Oh, and according to the dentaltown thread the prosecution only found 8k of biling irregularities. They also used his house, cars, and lifestyle to show his motive to steal. I just hope you don't have a nice house or cars.
As for how can you not notice X amount of money it all depends on time. If small amounts of money are missing/over/underbilled then it is harder to notice. It is possible to keep making the same mistake if you didn't know it was a mistake to begin with. Just look at the grammar. Many people have been spelling, mispronouncing, or incorrectly using words for their whole life.
Check out this story http://www.lotterypost.com/news/140429. It's about a woman who stole more than 2.3 million from Great South Bay Surgical Associate. She was their office manager and managed to siphon millions from these doctors. How would you explain that? The doctors obviously knew she was stealing because how can you steal 2.3 million unnoticed, right? How could Madoff orchestrate a 50 billion ponzi scheme without people noticing, right? Those people must have known and wanted to lose their life savings!
As for the line of thought that the government won't go after you unless you are guilty and they can prove it... Hahahaha! I don't even know what to say about that one. There are many people on death role or life in prison for crimes where they can be exonerated by DNA evidence taken years ago. Guess what... the government is fighting those cases tooth and nail. People have been executed and later exonerated. Also think of politics and and corruption. http://www.msnbc.msn.com/id/29142654/.
I am not arguing that Dr. Shelborne is innocent, but I'm just pointing out that your guilt because "why would the govt go after an innocent person", and "why won't he appeal" is bogus. I just hope the govt doesn't come after you for billing irregularities.
Oh, and according to the dentaltown thread the prosecution only found 8k of biling irregularities. They also used his house, cars, and lifestyle to show his motive to steal. I just hope you don't have a nice house or cars.
I just posted this because I thought it was interesting and it turned to a full on debate. 🙂
I'm guessing the differences between the thread and the report of $8,000 and $260,000 is significant.
I liked the point that was brought up that he considered not appealing, which any innocent man would instinctively do, even if he was out of money.
I do have a question if anyone can answer it though: The prosecutor displayed images of the Doctor's house, cars, and vacations... It seems like that should have been objected to by the defense because it was not directly related to the question of whether or not he was fraudulent with his billing of Medicare. Anyone know why it would be allowed?
I'm guessing the differences between the thread and the report of $8,000 and $260,000 is significant.
I liked the point that was brought up that he considered not appealing, which any innocent man would instinctively do, even if he was out of money.
I do have a question if anyone can answer it though: The prosecutor displayed images of the Doctor's house, cars, and vacations... It seems like that should have been objected to by the defense because it was not directly related to the question of whether or not he was fraudulent with his billing of Medicare. Anyone know why it would be allowed?
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They said that his lavish lifestyle showed motive. I think he got legally railroaded... even if he was guilty. His attorney should have been able to put up a better fight and fought for better jury selection. I guess that's what happens when your assets are seized using RICO laws and you are forced to hire a second rate attorney.
BlackTeeth, have you read the entire DentalTown thread about Dr. Shelbourne?
I did and the dentists on there have some Medicaid stories that sound completely irrational but are true.
I am not a lawyer so I have little faith in the justice system based on what I read about corporate thieves running free in the news daily.
It was explained that RICO was originally used to go after mobsters. The sole Medicaid dentist in a rural Virginia county doesn't sound like a mobster to me.
Defrauding medicaid isn't right, if that's what happened here. However, did any boneheads in the government think for a second what happens to "access to care" when the lone Medicaid dentist in a rural Virginia county is now behind bars and not practicing? Where will these patients go now?
I did and the dentists on there have some Medicaid stories that sound completely irrational but are true.
I am not a lawyer so I have little faith in the justice system based on what I read about corporate thieves running free in the news daily.
It was explained that RICO was originally used to go after mobsters. The sole Medicaid dentist in a rural Virginia county doesn't sound like a mobster to me.
Defrauding medicaid isn't right, if that's what happened here. However, did any boneheads in the government think for a second what happens to "access to care" when the lone Medicaid dentist in a rural Virginia county is now behind bars and not practicing? Where will these patients go now?
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Must be true in view of the convictions that have been overturned based on DNA evidence.
I wouldn't say that. I personally know one doctor who was harassed by a US Attorney for supposed medicare fraud due to a clerical code entry, "mistake", that his office was directed to use by the insurance company. In this instance, the office used the code directed by the insurance rep to use for billing that procedure. They were harassed for years and at an enormous legal cost. Even their lawyer, a former US Attorney, could not get them out of the jam easily. He didn't serve any prison time, but the constant threats from the Feds on jail time, constant hearings, asset seizure, etc. They take a toll on you. Eventually he had to sell his practice...a decent sized one, and throw in the towel. Since his wife was the office manager (like most wives are in the medical/dental field), it affected the whole family. In the end, my friend won, but by then the damage was done. The feds never even said sorry.
Hi all,
There are both sides to the case and we just don't know the whole details to make a proper judgement. There are innocent people thrown in jails as there are many who rightfully deserve to be there. What ever you do, always put your patients first and always treat them with the very best as you would do to yourself or your loved ones. If you care about your patients and care about your work and your heart is truly in it, you will have nothing to worry about. The truth WILL set you free. DP
There are both sides to the case and we just don't know the whole details to make a proper judgement. There are innocent people thrown in jails as there are many who rightfully deserve to be there. What ever you do, always put your patients first and always treat them with the very best as you would do to yourself or your loved ones. If you care about your patients and care about your work and your heart is truly in it, you will have nothing to worry about. The truth WILL set you free. DP
I agree that small amounts here and there would be hard to notice but an average overbilling of $1839 on each of the 143 billing statements in question is a huge chunk of change resulting in tens of thousands of dollars in overpayment each year is kind of hard to miss in my opinion, especially when you do your tax returns every year and it's staring you in the face.
But yes, the government does get it wrong. It has happened in past. That's why I stated in my posts that there are cases that I had read in law school where people were wrongly convicted. It's not an issue. Why are you arguing a point that's not at issue? I already said it's not a perfect system. But the government does nab tens times more people who are clearly guilty of insurance fraud. The government gets it right more often than not. Should we let people who are truly guilty go free too? Medicaid fraud victimizes all taxpayers and that includes you as well. We don't live in a totalitarian society were the government is both judge and jury and decides your guilt without a trial. Be thankful for that. The jury of your peers (i.e. normal everyday people like your mother, father, brother, sister, etc.) looked at the evidence and heard both sides and voted in favor of the prosecution. None of us were there to see all the evidence so none of us can truly comment on whether he is tryly guilty or innocent. Since when did speculation become truth?
It was not my intention to declare that he was definitely guilty. I only stated that his behavior doesn't appear consistent with an innocent person. In other words, he behaved suspiciously in my opinion but that alone is not enough where I would convict him. That's just my opinion. Since when was an opinion illegal? The last time I checked, we are living in a country with first amendment rights.
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That's okay because that is what we do on this forum. Thanks for the article though.
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Yeah...I did read the article on dentaltown. At first, I felt the same way everyone else probably felt. My gut reaction was that he got a raw deal. But then I read the government's side of the story and they pointed out some very interesting details. Seeing both sides of the argument which is what I was trained to do, I have to admit that there are suspicious elements in the case and I just wanted to point out what made me pull back from my gut reaction that he got a raw deal. After re-examining some of the evidence, I could see how that could have led to his conviction. BUT UNTIL I SEE ALL THE EVIDENCE, I would not condemn the man. I can be suspicious but I wouldn't personally send him to jail just yet.
And yes, the boneheads in the goverment don't always consider the effects of their actions.
P.S. - Did you guys know that Dr. Shelburne's own workers in his office testified against him? Those are some of the things you can discover that can change your opinion. Hence, that's why it's better to wait until you see all the evidence.
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The government believed that he was guilty. I'm saying that the government would never bring a case against the dentist unless they believed they could produce evidence that he had intent to defraud the government. And indeed they did come up with evidence that they believed showed intent from thier point of view. But belief that the evidence shows guilt is not the same as actually being guilty. Evidence is never black and white and is subject to interpretation. The government apparently intepreted all the evidence and thought he committed a crime. You and I could look at the same set of evidence and come up with a different conclusion. That's why in the end, it's up to an impartial jury of your peers to interpret the evidence and decide guilt or innocence and not up to the government to decide your fate.
As for those overturned convictions based on DNA, the jury in those trials didn't have all the evidence at the time of trial did they? If the jury had that DNA evidence at the time of trial, the outcome may have been different. Just like we don't have all the evidence in this case to say whether or not the dentist was wrongly convicted.
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So very true. There are also many people who are probably guilty and deserve to be in prison but got away too.
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Any branch of medicine/healthcare is open to the same scrutiny. If you cross your T's & dot your I's you should be ok. Remember, cya is the best advice. Just like an officer in the military, you gotta make sure that you're above board or you'll get disciplined, etc. In the case of healthcare, loss of license has to be the paramount worry. Keep your books/records straight, & your nose clean & you'll do fine. Every profession has screwups - just don't be one when you get there.
Ah, yes but what about the prosecution fighting to keep old cases closed and prevent the DNA from being tested? I would like to hear your opinion about that. The jury didn't have all the evidence but when new evidence or testing methods come out the prosecution doesn't want to reopen the case and re-evaluate it in light of the new evidence.
This doesn't just apply for murder and rape cases either. Even when paternity tests prove one is not the father many are left fighting child support claims for years. What about overzealous prosecution? The Kobe Bryant case comes to mind. What about scandal? Did you read the article I posted about a judge sentencing juveniles to prison so he could line his own pockets? What about political vendettas? Better hope you don't piss off the wrong person. Search for stories where CPS (child protective services) removes a child form their home because someone with a vendetta gave an anonymous call. What about increasing conviction rates and eying a political campaign? People get railroaded all the time. Whether it's by by error, scandal, or incompetence it happens. The line of thought that the government is always right doesn't float well with me.
This nebulous concept of "the government" needs to be broken down. The government is just a collection of individuals. One individual can make a mistake and so can the many who call themselves government. One individual can make cold calculated decisions that kill or injure others and so can the many that call themselves government. If you need an example of this open up a history book or just look at some current events.
I can see that this debate is going nowhere soon. You are still arguing a point that is not at issue. I already agreed that the government does get it wrong. As I have stated several times already that the government has wrongly convicted people in the past. How many times do we have to beat a dead horse? But that doesn't necessarily mean that Dr. Shelburne was wrongly convicted in this case. None of us can truly say he is actually guilty or innocent because we were not the jurors and did not see any of the evidence. But the government gets it right most of the time...to disagree on that point is tantamount to saying that majority of the people in prison are innocent and wrongly convicted and therefore, should go free. Is that what you are prepared to do?
P.S. - Keep in mind that it's not the government that decided whether or not you are guilty. It's a jury of your peers which means it's people like your friends and family who decide your fate. The government can and should be blamed if they wrongly accused you but it's ordinary civilians who make up the jury that should recieve just as much blame if not more because they are the ones who actually decide you are guilty and send you to jail. As far as the prosecution not willing to allow new evidence to reverse a previous decision, that's just plain wrong. But the prosecution doesn't always get what they want. Judges, who are also members of the government, allow new evidence into the appeals process all the time which is how you are able to hear about new DNA evidence reversing a decision in the first place.
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Ok, so we agree that the government sometimes gets it wrong and sometimes gets it right. I don't know the ratio between wrong:right but I assume it's relatively low. However, that probably doesn't allay the anger, fear, and frustration for those people affected when the government got it wrong. If I was wrongly convicted the line that the government gets it right most of the time wouldn't comfort me one bit. Sure, nothing is perfect and I am not arguing that Dr. Shelburne was innocent by any means. I guess every provider will have to consider the fact that if they take medicare all their assets could be siezed using RICO laws and they could wind up in a federal PMITA prison.
What bothers me the most is that the prosecution used RICO laws to freeze his assets BEFORE HE WAS FOUND GUILTY. That means that all you have to be is accused before the prosecution can freeze all your assets and procede to bring a case foward. How are you supposed to defend yourself? That's insane and extremely viscous. Even if Dr. Shelburne was guilty he should have been able to properly defend himself. Don't you think the use of RICO laws was a little extreme in this case? This tells me that the prosecution was overzealous from the jump.
You now bring me back to one of my original points I was trying to make. You stated that a wrong conviction doesn't ease the anger, frustration, and fear that people feel who are wrongly convicted. That's exactly what I was thinking too. If Dr. Shelburne was truly innocent, you would think that he probably would be angry, frustrated, and fearful of going to prison and therefore, would appeal his case. The fact that he is unsure whether to appeal his case seems odd to me considering what most wrongly convicted people would do if they were in his shoes. Doesn't that stirke you as odd behavior as well? But like I said before, odd behavior is not enough for me to send this man to jail if I were the juror. I would want to see more evidence.
And yes, RICO laws are notoriously harsh because the lawmaker who invented the laws in the first place didn't consider the unintended side effects in the first place. But by appealing the case to the Court of Appeals and then to the Supreme Court, you can change the law or abandon it completely which is why it's important to appeal the case. So why isn't Dr. Shelburne appealing his case? Odd behavior indeed.
P.S. By the way, you can work out a deal with the lawyers to collect his fees after everything is settled which many lawyers have no problem doing. So having your assets frozen and not having any money to pay lawyer fees to initiate an appeal is not a good reason in my opinion since many lawyers will do this if they see you can eventually pay but not up front. Petty criminals who have no money are able to send thier case to the appeals process all the time. But I'm aware that some lawyers won't wait to collect fees at the end so it's up to him to find a lawyer that will. Many of my well known law professors did pro bono work all the time because they don't need the money. They love the challenge. Did I also mention that the Miranda rights allows an attorney to be appointed to you if you cannot afford one? In other words, the government is going to pay for a lawyer on your behalf for you to mount an appeal to your case. There is no cost to you at all for the lawyer. So there is no excuse for Dr. Shelburne to not appeal his case since money should not be a problem.
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So it took 143 statements, an overcharge of $1839 per statement, 1315 consecutive "mistakes" and $263,000 in over billing before someone caught on that there was something wrong. Had Dr. S stopped at the 142nd statement would the outcome have been different? Interestingly enough, over the years there has not been much talk of fraud on this scale involving any of the large dental insurance providers.
I don't know why but I found this comical. I always thought that dentists/doctors and lawyers were on oppsite ends of the working spectrum. Although, I suppose both are highly skilled, intelligent and motivated types of people.
Excellent analysis Blackteeth, I also agree that his behavior seemed "suspicious".
But Dr. Shelburne was also convicted of defrauding the private health insurance companies as well. The following excerpt is taken from the United States District Attorney's Office, Western District of Virginia.
"Shelburne would also bill both Medicaid and private health insurance companies for services rendered in connection with a single procedure, collect money from both agencies, and then would not reimburse either Medicaid or the private health insurance company for fees collected."
What can I say? The man was accused and convicted of double dipping. It sounds like fraud to me but I'll still wait to see if we ever get a chance to view all the evidence before I make my final opinion. If the prosecution were to show bills to both Medicaid and private insurance companies (i.e. double dipping) and it occurred more than a 1,000 times than that is REALLY DAMAGING EVIDENCE!!!
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Hahaha!!! Like Darth Vader, I was seduced by the dark side before Luke Skywalker came along and brought me back to the light side of the force.
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There is no evidence of $263,000 in overbilling. The prosecution did, however, arrive at this value using 'statistics.' 😉 It does appear that the actual amount of discovered discrepancies was ~$17,889.
http://www.tricities.com/tri/news/local/article/dentist_sentenced_in_medicaid_fraud_case/11545/ said:
In the verdict press release (I highlight this, because we both know that press releases only state facts 😉) made by U.S. Attorney Brownlee, states:
http://www.usdoj.gov/usao/vaw/press_releases/shelburne_06mar2008.html said:
There doesn't appear to be any hard evidence that Dr. Shelburne committed these improprieties thousands of times for hundreds of thousands of dollars, only conjectures by the prosecution. That being the case, prosecute the man for fraud, make him pay back the money plus a nice fine, and probate/revoke his license. But to toss RICO at him and leave him with nothing when there is only evidence for $18k in overbilling? That is the part of this whole situation that confounds me. That is why the risk is not worth the reward.
I agree on that. Nowhere in any of the articles was there discussion of how many times he double dipped. I was only speculating regarding how many times the double dipping had occurred. You'll noticed that I started my speculation with an "If" conditional clause and so I was only trying to propose a hypothetical situation. It's so confusing who's report is more accurate. That's one of the reasons why I am only suspicious of Dr. Shelburne and withholding my full opinion until I can see all the evidence that was presented in the trial for myself.
But let's just assume for the sake of argument that it was only $18,000 overbilling. A prosecutor would still go after Dr. Shelburne just as hard as if he had overbilled $263,000. That prosecutor would make the argument that even fraud in the amount of $18,000 qualifies for grand larceny and thus, deserves no less effort than if the fraud amount was $263,000. I'm pretty sure a lot of federal judges will be persuaded by such an argument would allow the prosecutor to bring the full force of the law on top of Dr. Shelburne which unfortunately includes RICO.
But I somewhat agree that the use of RICO in this case was unduly harsh and does not coincide with the intentions of Robert Blakely when he designed the bill. As I have stated previously, that's even more of a reason why Dr. Shelburne should be appealing his conviction. After all, what does he have to lose? He could have a court appointed attorney work on his behalf without it ever costing him a penny. He has nothing to lose at this point and everything to gain. If he is successful in his appeal, he gets his dental license back, the government will pay him restitution for wrongful imprisonment, he gets his record expunged, and he is exonerated. Why is he seemingly just rolling over and playing dead? Instead of feeling outraged that he is going to prison for two years, he states that he is grateful that the prison sentence was not more severe than it could have been. It just isn't consistent with the behavior of an innocent man. That's why I feel that there is something fishy about all this and I reserve my final judgement until I can see all the evidence presented against him for myself. It makes me wonder what his motives are for hesitating to appeal his case.
P.S. - If Dr. Shelburne appealed his case and won, I gaurantee you that his case would be written into every law textbook in the country and every law professor will regard it as a landmark case and teach it in their criminal law classes. But that will never happen if he doesn't appeal.
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I agree. I would like to get a copy of the court transcripts to read exactly what transpired in the courtroom. Both sides of this case smell fishy.
Now that's a surprise. After all the office staff could either choose to testify for the prosecution or they could stand trial as conspirators to defraud. With such choices even a mother would be in a heck of quandary.
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How often do Dentists actually do their own billing though? Every dentist I know has an employee that does all the billing.
Also, if it was only about 16k, it's over a 5year period so that is like 3k a year.. for someone that grosses 2million it is like a .15% error rate which doesn't appear to be too harsh. I think I was just annoyed by this because this guy got nailed so hard and we've had all these politicians lately getting away with tax fraud. They owed hundreds of thousands and got off without prosecution, fines, or penalties. This just seemed like a really bad double standard to me.
Also, if it was only about 16k, it's over a 5year period so that is like 3k a year.. for someone that grosses 2million it is like a .15% error rate which doesn't appear to be too harsh. I think I was just annoyed by this because this guy got nailed so hard and we've had all these politicians lately getting away with tax fraud. They owed hundreds of thousands and got off without prosecution, fines, or penalties. This just seemed like a really bad double standard to me.
Here's my take. Whenever I hear about this case everyone always bashes the medicaid system. Why? Because they're too picky? They expect accuracy? What if this wasn't a medicaid doc and he was making those same billing "errors" with his fee-for-service patients -- would he be any less guilty? The lesson from this is that the government takes lying personally -- whether it's intentionally deceptive or (the only alternative in this case to explain the large number of discrepencies) grossly negligent. This applies to medicaid fraud, insurance fraud, perjury (look at Clinton!) -- lying to the government ticks them off.
When I first read this story I felt really sorry for Dr. S. But the more I read about it it sounds like he should have at least lost his licesnse -- a very poor dentist, if not a federal criminal guilty of racketeering. Take this as a lesson that shoddy dental work and shoddy record keeping are not a viable defense and that there's no such thing as a victimless crime -- especially when the victim is the government!
When I first read this story I felt really sorry for Dr. S. But the more I read about it it sounds like he should have at least lost his licesnse -- a very poor dentist, if not a federal criminal guilty of racketeering. Take this as a lesson that shoddy dental work and shoddy record keeping are not a viable defense and that there's no such thing as a victimless crime -- especially when the victim is the government!
My dentist from back home does his own billing now that he had to bring charges against his office manager for extorting a quarter mill from his office over 10 years. With how much people in this profession seem to be all about the bottom line it absolutely amazes me how many have so little oversight in the financial operations of their business. Many do... but a lot don't and it just blows my mind...
Well if that's the case then where does it end? Is 10K still considered grand larceny? What about 5k? What if it was over a period of years? What if the dentist wasn't even the one doing the billing or coding on that particular procedure? What if the dentist just owns the office and doesn't actually step foot in there?
It seems like everyone here is missing the point. The point isn't to determine whether Dr. Shelburne is innocent or guilty. He was already found guilty by a jury and sentenced. If he doesn't appeal (which it seems like he won't) then his case is finished. The point is to assess the risk of taking medicare. Just look at the WAY they went after him. Is anyone else as alarmed as I am? Think of this:
1. How did they even know to go after him in the first place? He states that he was audited by medicare three times over that period and they found nothing wrong. He states that the case was brought upon by the government so the question is how did they know to go after him? Did one of his employees (probably the one who testified against him) turn him in to the government? Oh, and by the way I heard they pay cash awards for doing that so it's definitely an incentive.
2. RICO laws! Really? You pointed out that you could still hire an attorney with all your assets seized to fight off the government. Ok, well it is also possible to win a boxing match with your right hand tied behind your back. Watch out for that left hook though
.3. They were trying to charge him for money "stolen" based off of a bogus extrapolation. What?? This reminds me of the RIAA's bogus extrapolation of money lost due to piracy. Is there any doubt that the prosecution was going after him hardcore? Do they do this with every allegation? Either there was something underlying this case or Dr. Shelburne caught the wrong case at the wrong time.
4. They used his house (they called it the Cavity Castle), cars, and personal wealth to incriminate him. Are you or do you ever plan on being successful? I hope not, cause this can be used against you.
5. As a dentist, can you say with 100% certainty that you or your office has never overbilled? Do you even do your own bookeeping? Are you sure that what happened to Dr. Shelburne (innocent or guilty) couldn't happen to you? Are you willing to accept that risk? Knowing what you know now, if you are willing to accept that risk do you think you have a right to complain if you are railroaded by the government later on?
Does a court-appointment attorney (a "government lawyer) work at the same efficiency as a government dentist? Many dentists working for various government clinics get paid the same if you see one patient or twenty. Is this also the case with the government lawyer because how hard is this attorney going to work for his client assigned by the government if he gets paid the same regardless of the outcome?
Well if that's the case then where does it end? Is 10K still considered grand larceny? What about 5k? What if it was over a period of years? What if the dentist wasn't even the one doing the billing or coding on that particular procedure? What if the dentist just owns the office and doesn't actually step foot in there?
It seems like everyone here is missing the point. The point isn't to determine whether Dr. Shelburne is innocent or guilty. He was already found guilty by a jury and sentenced. If he doesn't appeal (which it seems like he won't) then his case is finished. The point is to assess the risk of taking medicare. Just look at the WAY they went after him. Is anyone else as alarmed as I am? Think of this:
1. How did they even know to go after him in the first place? He states that he was audited by medicare three times over that period and they found nothing wrong. He states that the case was brought upon by the government so the question is how did they know to go after him? Did one of his employees (probably the one who testified against him) turn him in to the government? Oh, and by the way I heard they pay cash awards for doing that so it's definitely an incentive.
2. RICO laws! Really? You pointed out that you could still hire an attorney with all your assets seized to fight off the government. Ok, well it is also possible to win a boxing match with your right hand tied behind your back. Watch out for that left hook though
3. They were trying to charge him for money "stolen" based off of a bogus extrapolation. What?? This reminds me of the RIAA's bogus extrapolation of money lost due to piracy. Is there any doubt that the prosecution was going after him hardcore? Do they do this with every allegation? Either there was something underlying this case or Dr. Shelburne caught the wrong case at the wrong time.
4. They used his house (they called it the Cavity Castle), cars, and personal wealth to incriminate him. Are you or do you ever plan on being successful? I hope not, cause this can be used against you.
5. As a dentist, can you say with 100% certainty that you or your office has never overbilled? Do you even do your own bookeeping? Are you sure that what happened to Dr. Shelburne (innocent or guilty) couldn't happen to you? Are you willing to accept that risk? Knowing what you know now, if you are willing to accept that risk do you think you have a right to complain if you are railroaded by the government later on?
First of all, let me say that this is a great case. I'm not making an argument just for the sake of arguing. I think we all can learn something from it which is why we are discussing it so vigorously. That's why I thanked the OP for bringing it to our attention. For those of you who are not familiar with the law, our discussion may make you more aware of what legal rights you have. For me, it is a reminder that when I own my dental practice, I bear the responsibility of what goes on in my practice because every good and bad thing that happens is a result of the choices that I make. So let's begin and get ready, this is going to be a long post because I believe that it's something worth dedicating some time to.
To respond to your statement, I don't think we are missing the point at all. Before you can determine whether it is worth accepting Medicaid in your practice, you have to first identify the problem. Is the cause of the problem Medicaid? Or is the cause of the problem dentists like Dr. Shelburne who don't do a good job keeping accurate records? If the complete cause of the problem is Medicaid, then you might be able to come to the conclusion that it is not worth the risk to accept Medicaid in your own dental practice. But if the cause of the problem is dentists like Dr. Shelburne who do crappy record keeping, then dentists like Dr. Shelburne have to share the blame with the Medicaid system and so the risk of accepting Medicaid in your practice is not as overblown as it may seem because you also have to consider the role of the dentist in increasing that risk. No point in pointing out the flaws of Medicaid because the lawmakers already know that Medicaid has a ton of problems and are already in the process of trying to fix it. But they also want to know if the dentist's crappy record keeping is contributing to the problem. That is why it is important to discuss our opinions on Dr. Shelburne's conviction. So I don't believe we are missing the point at all. And I think it's been established that he was very negligent with his record keeping. Mackchops was very astute in pointing that out. Dr. Shelburne contributed to his own legal problems by choosing not to audit his own records which every responsible dentist does on a semi-annual or annual base to make sure everything is in order. So Dr. Shelburne is not completely blameless and deserves to share some of the blame. Because of his carelessness in keeping records, he deserves to bear some of the fault for the circumstances he is in. He helped create his own legal nightmare. Medicaid deserves much of the blame but not all the blame. Even if he made billing mistakes which every dentist does from time to time, it's still not an excuse to not do an audit of your own dental records semi-annually or annually. All it takes is a few days of the year for you close down your office and sit down and go through all of your records to try to catch any mistakes you have made. That's just plain good practice management. If people can take the time to do an audit of their own tax records, then there is no excuse for Dr. Shelburne to not do the same for his dental records. He simply chose not to do it himself and for that, he can blame no one but himself. But failure to do due diligence when it comes to record keeping is not a crime. That's what I'll address next.
Let me first point out that Dr. Shelburne received money from Medicaid that he didn't deserve. That is a fact. It is undisputable. Even Dr. Shelburne doesn't dispute it. I want to highlight that very important point because we always want to keep that in mind because that trumps a lot of the arguments that you are making. He didn't deserve that money because he didn't earn it. It is morally and ethically wrong to keep money you don't deserve. The big question is whether he committed a crime in order to get that money. Unfortunately, that is not for us to decide because we are not the jurors. Unfortunately, we don't know how much money that he unjustly received because all the reports state different amounts. I found 3 sources that claim it was $18,000 and 4 sources that claim it was more than $200,000. But no matter how much he received, if it meets the level considered as grand larceny then by law, he needs to be pursued by the prosecution. That is only fair because our justice system puts people in jail for several years because they robbed a bank for $5000. It would not be fair to go easy on Dr. Shelburne when he took at least $18,000 and possibly took as much as $263,000. What kind of message does that send to the public? It makes it appear as if there are two sets of laws, one set of harsh laws for ordinary people and another set of lenient laws for professionals such as dentists. That is just not acceptable. Furthermore, going easy on Dr. Shelburne would set a dangerous precedent. If the government goes easy on Dr. Shelburne today, they will have a tough time prosecuted any sort of fraud involving amounts less than $18,000. It would be worse if Dr. Shelburne indeed took $263,000 because then there would be a tough time prosecuting anyone who takes less than $263,000. A doctor who intentionally defrauds the government of $17,999 dollars in the future will use this case to get himself exonerated. That doctor will claim that if we let Dr. Shelburne off easy, then he should get off easy as well. In other words, letting Dr. Shelburne off easy would be endorsing abuse of the legal system because if one judge goes easy on a fraud case, then every judge in the country will have to do the same. That is the legal principle of stare decisis that is taught in law schools. If a judge applies one law to one person leniently, he will have to apply that same law to everyone leniently as well. In addition, there will no deterrence for fraud in the future because every dentist and doctor will now know that if they defraud the government for an amount less than what Dr. Shelburne took, they will be able to argue that because the law let Dr. Shelburne off the hook, it's only fair to let them off the hook as well. We will be opening the floodgates for an unprecendented amount of fraud to take place. If that were the case, there would be no money left in the Medicaid system to help those poor people who need it the most.
Question #1
I cannot comment because none of us know all the details of the case. We just know bits and pieces.
Question #2.
Having an attorney appointed to you has nothing to do with RICO. It is part of the Miranda rights which I'm pretty sure everyone who has watched a movie or TV has heard at one time or another. It's when a police officer arrests a suspect and starts quoting that infamous line, "You have the right to remain silent. Anything you say may be used against you in a court of law. You have the right to an attorney and if you cannot afford one, an attorney will be appointed to you at no cost. Blah, blah, blah." Each state's Miranda rights may be worded differently but the concept is similar to one another. Hopefully that rings a bell and you know what I mean. I'm sure everyone knows what I'm talking about by now. So no, you don't have to hire an attorney yourself. As I have already stated before, the government will appoint an attorney to you at no charge. The government will pay for this attorney. If you have an attorney that you prefer who doesn't charge outrageous prices, then the government will probably let you have the attorney of your choice. And no...the government will not let you have Johnny Cochrane (if he was still alive) because he charges too much money. As I have stated previously, you can always work out a deal with your attorney for him/ her to collect their fees after your trial, when the seizure of your assets has been lifted and you have access to them to pay your legal fees. Many attorneys will do this, especially for dentists because they know we are good for it and have the financial means to pay them. So there is no excuse for Dr. Shelburne to not appeal this case.
Question #3
I have to admit that I have no clue why they do this. I have read several cases when I was in law school that applied formulas for determining restitution and damages. It's meant to be fair but I cannot comment on whether it actually achieves fairness. These formulas are usually developed by some of the smartest legal thinkers (e.g. judges and law professors) in our country. That's what law professors do when they are not teaching class. My opinion is that some of them are good and actually achieve fairness and some of them I have no idea because it's beyond my level of knowledge. I have no idea which formula was applied in this case because there are several of them.
Question #4
In my opinion, RICO probably should not have been applied in this case. It worked to put a lot of mobsters behind bars because some mobsters were able to dance around the law and it was hard to convict them. Robert Blakely created RICO to get all the mobsters when this country was infested with them. That's why Dr. Shelburne should appeal if he is truly innocent because it could change how RICO is applied and thus, protects dentists like us from having it used against us in future cases. But strangely, he doesn't seem to want to appeal. Defense lawyers usually jump at the chance to appeal and I'm guessing his lawyer is probably no different. It makes me wonder whether the evidence of guilt is so overwhelming that the government's case against Dr. Shelburne is so strong and even his lawyer doesn't think he can win on appeal. That's why I'm very interested to see what the evidence is against him. Like I mentioned in my earlier post…why is he just rolling over and playing dead? Instead of feeling outraged that he is going to prison for two years, he states that he is grateful that the prison sentence was not more severe than it could have been. That's such a strange thing for an innocent man to say unless he's truly not innocent. And yes, I do hope to be successful in the future, but unlike Dr. Shelburne, I have a little more of an understanding of the law than the layperson because of my law background and so I'm not completely unaware of my rights and of the laws that govern over me. But it doesn't take a law degree for anyone to read up on it. Lawbooks are open to the public.
Question #5
Of course I cannot prevent overbilling from happening in my office. Dentists do make mistakes and some make more than others. But I plan to take responsibility for my practice and do audits of my dental and financial records myself annually before I submit my annual tax returns as every dental practice owner should do. I will not be lazy and delegate that task to one of my workers when it is definitely my responsibility as a dental practice owner. It's just plain common sense. Unlike Dr. Shelburne, I will certainly return any money that I find as a result of overbilling at the end of every year. That was Dr. Shelburne's failure and fault. As I said earlier, he helped create his own legal hell. Just for the sake of argument, let's assume Dr. Shelburne did not commit fraud and actually was naive about the billing "mistakes". That means that year after year, he filed his tax returns and never made any effort to try to discover any money that was the result of overbilling. Year after year, he kept all the money and never made any effort to return it until the government had to chase him down for it. That is absolutely irresponsible for a practice owner to do!!! If the government never chased him down, he certainly would have kept that money that he didn't deserve to receive in the first place. Of course the government is going to be pissed off that he forced them to chase down the money he didn't earn. He caused them to spend taxpayer money to chase after him. If he had only just took the effort to catch his own billing mistakes and returned the overbilled money on his own instead of having the government chase him down, they probably would have just given him a fine and left it at that. There probably would not have been jail time and license revocation...a slap on the wrist. That's what the government did with those politicians like Tom Daschle and Timothy Geithner who owed thousands of dollars in back taxes. Although they were wrong to not pay their taxes, when they discovered the overdue taxes, those politicians voluntarily came forward of their own free will and paid back those taxes and as a result, all they got was a fine. That's the difference between those politicians and Dr. Shelburne. Dr. Shelburne SHOWED NO SIGNS OF TRYING TO RETURN THE MONEY and made the government chase after him. That's probably why they went after him as harsh as they did and so it's understandable that the government believed he was committing fraud. As Americans, we expect the government to be accountable for their actions. Well guess what? It cuts both ways. It's only fair for the U.S. government to expect the same for all of us and to be accountable for our actions as well. Again just for the sake of argument, let's assume Dr. Shelburne did not commit fraud and the billing anomalies were "mistakes". If Dr. Shelburne did not want to take the time to review his own book keeping records, then that's his mistake. Even if he chooses to delegate the task of book keeping to one of his staff, he still has the responsibility to review it himself. After all, he is the owner of the practice and his name is on the front door of the practice and he gets the majority of the financial rewards of being a practice owner. It's unfair that Dr. Shelburne accepts all of the benefits of being a practice owner, yet not take responsibility for any "mistakes" in billing that occur on in his office. As the owner, he decides his own level of involvement in the operation of his practice and he apparently chose not to be involved. You can't blame the government for his lack of involvement. If he can't take the time to review his own dental records which is his responsibility as an owner…then maybe he shouldn't own a practice. You can't pick and choose which responsibilities you are willing to undertake as an owner. You either accept all the responsibilities or you don't be an owner at all. It's as simple as that. I'd say that's pretty fair. So at worst, he is guilty of fraud and at best, he is culpable of irresponsible record keeping. But either way, he helped create his own legal nightmare regardless of whether it was fraud or not. So Dr. Shelburne should at least be partly blamed for his own legal situation and so you cannot say for certain that accepting Medicaid in your dental office has too much risk. It may have too much risk and it may not. But until you find a situation where the dentist documented and billed everything correctly and still got screwed, only then can we say absolutely for sure that Medicaid is too risky to accept. But until then, it's the free choice of each dentist to choose or not to choose to accept Medicaid.
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I honestly don't know. It depends on the individual person. You can't make the generalization that government appointed attorneys don't work as hard because that's too much of an oversimplified generalization. That's like making the generalization that all dental students who graduate from UCLA are the best dental students ever!!! As much as I would like that to be true, unfortunately, that's just an opinion and an overgeneralization. There's no proof to back it up just like there is no proof or evidence that government appointed attorneys will not work as hard on your case because he gets paid the same regardless of the outcome. Guess what? I would say that many private practice attorneys will get paid regardless of the outcome with the exception of civil suits but this is not a civil suit so it is irrelevant. Malpractice isn't just in medicine and dentistry. There is malpractice in law too. And you can bring a lawsuit against an attorney for malpractice just like you can bring a lawsuit against a doctor or a dentist for malpractice. Get my point?
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