Scared Straight: Why Documenting Your Work is Critical – Episode 166

Good intentions mean nothing when it comes to documenting medical necessity.

Reese welcomes special guest Roy Shelburne on this episode of Dentist Money™. A popular conference presenter, Roy takes time from a busy schedule to tell his fascinating story. From spending 36 years building a successful practice to federal prison, it’s a personal journey that will both frighten and inspire you. But most importantly, as dentistry compliance issues continue to increase, it will change the way you document your work.

Podcast Transcript:

Reese Harper: Welcome to the Dentist Money show. I’m your host Reese Harper and I’m excited to introduce you today to Roy Shelburne. Roy has a fascinating story that takes him from spending 36 years building a successful dental practice in a rural community, to federal prison, to becoming a sought after presenter at conferences throughout the country.

Reese Harper: He survived an unusual school of hard knocks and today we live in an age of increasing regulation and compliance industry and you’re going to want to hear his story. Make sure and visit us at dentistadvisors.com and check out our education library. You’ll find a lot of videos podcasts and new articles that we’re releasing every week. Also, when you go to the website, don’t forget to book a free consultation, clicking the book free consultation button, where you’ll be paired with one of our dental specific financial advisors on a day that works for you.

Reese Harper: We book appointments on off days, lunches, even on some Saturdays. Just check out the calendar and find a time that’s convenient. Call us anytime at 833-DDS-PLAN. You can also text us at the same number. Don’t forget to submit your financial questions on our free Facebook group at dentistadvisors.com/group. We take the questions from the Facebook group and use them in the podcast. Thanks again for listening and enjoy the show.

Speaker: Consultant advisor, conduct your own due diligence when making financial decisions. General principles discussed during this program do not constitute personal advice. This program is furnished by dentist advisors, a registered investment advisor. This is Dentist Money. Now, here’s your host Reese Harper.

Reese Harper: Welcome to the Dentist Money show where we help dentists make smart financial decisions. I’m your host, Reese Harper, and today I’ve got a special guest who I met at the top of Snowbird Resort a few months ago. He’s a former dentist with a ton of experience and now a renowned speaker that travels the country covering a very interesting subject that you guys are going to learn a lot from today. I’d like to welcome to the show Roy Shelburne. Roy, how are you doing, man?

Roy Shelburne: Hey Reese, I’m great. Thanks for having me. I appreciate it.

Reese Harper: Yeah, it’s good to be with you again man. I loved hearing your story the first time and I thought we really got to make sure that we share this with my audience. It was great to meet you up at… We were up on the top of Snowbird and I’m wondering how that felt for you there that day with the air. Like you’re used to that?

Roy Shelburne: Yeah, I’m in the mountains of Virginia, although it was a bit higher than where I am here. I acclimated fairly easily because of the elevation I live at.

Reese Harper: Yeah, some people got kind of tipsy up there that day.

Roy Shelburne: They did.

Reese Harper: I think you’re north of 11,000 feet then. You’re in cold weather right now though too, aren’t you?

Roy Shelburne: Yeah, yeah well.

Reese Harper: Virginia’s got snow right now, don’t they?

Roy Shelburne: It’s, in my part of the country, we call it spitting snow. It’s coming down. Maybe over the weekend it’s going to get a little bit thicker. We’re going to drop into the teens. High teens on Saturday.

Reese Harper: Nice.

Roy Shelburne: We get four very distinct seasons. It’s a great part of the country to live in.

Reese Harper: That’s cool. Yeah, it’s beautiful there.

Roy Shelburne: Yeah.

Reese Harper: How about we introduce people a little bit to your story. You’ve had a very interesting experience in your life, and I think it’s particularly relevant to dentists. Let’s have you give a little bit of your background and about this experience that really created the story that’s fueling your speaking career.

Roy Shelburne: I’d love to. I was born and raised in the same area I am now on my practice. I graduated from University of Virginia in ’77, dental school in ’81. I went back to my hometown, which is Pennington Gap, Virginia, largest town in the county. Population’s 1,800. That’s 1-8-0-0. Population of the county’s about 20,000, and my practice was started from scratch in my grandfather’s hardware store building. We lowered the ceiling, put the equipment in the basement, and I practiced very, very happily for 27 years. Was a big CE guy, so I had flown to San Francisco, California to the American Dental Association meeting that year.

Roy Shelburne: It’s 2003, and was in the keynote session as it began with Rudolph Giuliani and midway through the presentation my phone began to vibrate and I opened and it was my wife, she was calling. She was visiting my daughter who’s at Virginia Tech and wasn’t home either. And I thought it was weird that she was calling because she knew I was in this meeting, typically would not have interrupted, but rather than answering it, I closed it and waited for Giuliani to finish, and as everybody was pouring out of that auditorium, I opened my phone, and I called my wife, and she shared… I asked her, “Are you okay?” Because she was calling and her first question out of her mouth, first response was, “Are you sitting down?”
Roy Shelburne: There’s no call that ends very well when it begins with, “Are you sitting down?” I said, “No, do I need to be?” And she said, “Roy, you need to be sitting down.” I said, “Debbie, what’s going on?” And she shared that James, he was our custodian at the practice. He cleans up, he had called her to let her know that the FBI had come to my office. They battered down my back door and were taking my records. Not a good way to start of conversation. I talked to her, trying to reassure that things were going to be okay, never believing they would be. Hung up the phone, and I was sitting there trying to figure out what in the world I was going to do. It’s Friday, my team wasn’t going to be in the practice. It would be empty and normally the phone would not have been answered, but I thought, “I’ll just call and find out if somebody will answer.”

Roy Shelburne: Somebody did. On the other end of the phone the statement was, “Hello?” And I said, “Hello, who is this?” And the question back to me was, “Who’s this?” I said, I’m Dr. Shelburne, I own the practice you’re in, the phone you’re talking on. Who are you and what are you doing in my practice?” He explained that he was an FBI officer, that he had executed a search warrant, that I was the target of a healthcare fraud investigation and they were in the process of gathering evidence to determine my guilt or innocence. I asked him, I said, “What is this about?” The statement he made really startled me. He said, “Doctor, you know what this is about.” I said, “Sir, I have no idea.”

Roy Shelburne: I hung up the phone, went back to the hotel, packed up my belongings, went to the airport. Luckily there was a seat open. I flew home, got there about 9, 9:30 and I drove past my office and it was surrounded by crime scene tape. Next day was the county’s fall festival. There were parades through town, there were booths set up on the sidewalk and in a small community like that, guess what the topic of conversation was? That was me, and what was happening. I met with the team the next day, asked if anybody had any idea what was going on. Nobody did. Went to the church the next day, asked for their support. Went to the practice the next day. It was 2003, we were papered at the time.

Roy Shelburne: We had a computer that had the treatment plans in, and the schedule was in the computer, but otherwise we had no dental records. So, we knew who was coming and what was scheduled, but we really didn’t think anybody would come after that bombshell. I was surprised, everybody did. I guess the take-home to the listeners is, if you have a relationship with your patients, they know who you are, they trust you, there’s very little that can do damage to your practice. You can be successful in spite of any outside forces.

Roy Shelburne: Investigated for the next three years. No stone was left unturned. Three teams of officers simultaneously went to my three children’s universities during the time. They went to the bursar’s office, they got my children’s schedule, they enlisted the help of campus police. They went to my children’s university classrooms. They interrupted the class, flashed their FBI badges and escorted my children out of their classrooms and into an empty classroom and interrogated them for an hour.

Reese Harper: Wow.

Roy Shelburne: Yeah. So, there was no stone left unturned. I was indited on all charges. Indited almost exactly three years afterward. I’d come home from my practice, had changed. Thursday was our early day. We started very early and we ended at 2:30 or 3:00 in the afternoon. I had changed and there was a knock at the door at about 4:00. And the officer that I’d spoke to on the telephone when I had called home from California was at my door and he said, “Dr. Shelburne, I’m here to arrest you.” Brought me into the kitchen and I was handcuffed. I had a chain around my waist attached to the handcuffs so I couldn’t raise or roll my hands any further than three or four inches, had leg irons on.
Being read my rights, my wife was on my left shoulder with her right hand on my shoulder. Phone began to ring, she turned to answer it, the officer said, “I can’t let you answer that phone. We can’t let anything interrupt the proceeding. So I ask that you don’t answer it.” She turned back around, put her hand on my shoulder. The phone rang six times, the answering machine picked up. It was my daughter, who was at University of Virginia at the time. Left a message, obviously distraught, you could hear through the tears. “Mom, dad, they’re here. They’re taking my car. I don’t need my car. Are you guys okay? What’s going on at home? Is dad okay?”
I was arrested and charged with healthcare fraud, racketeering, money laundering, and structuring. If you’re arrested and charged with racketeering and money laundering, it allows the government to confiscate everything that you own. Bank accounts, automobiles, and anything that you may have helped supported during that period. So, my wife’s car was in her name. My children’s cars were in their name, but because we shared money back and forth, the allegations were I laundered dirty money that I got that I wasn’t entitled to into a business account and then used that business account to pay legitimate expenses that’s laundering.
When I was arrested they came with seven other officers and four other vehicles and three flatbed car haulers. They pulled the vehicles out of the garage, on to the flatbeds. They left my wife with no vehicle. My children’s vehicles were confiscated as well at their colleges. The bank accounts were confiscated. Try to put together a defense, pay an attorney and expert witnesses on your behalf with no money. It’s kind of tough.

Reese Harper: Totally.

Roy Shelburne: I was prepared for trial for about a year and a half. Went to trial nine days. Longest nine days of my life. I sat in a courtroom and I heard a lot of testimony and actually during… After the arrest and during all the investigations, it prompted me to look at what I did and what I didn’t do that I should have been more careful about. Documenting appropriately in the building piece of my practice. It was a Medicaid issue. So, over the course of six years when they did their evaluations, I was paid three and a half million dollars for the services that I provided my Medicaid patients, a huge number obviously.
During the sentencing, they determined the amount that I got that I wasn’t entitled to and did we make errors? Yes, we did. Over the course of the six years, I got three and a half million dollars. Of the three and half million dollars I got, the amount that they determined, that I got that I wasn’t entitled to of the three and a half million dollars was $17,899.57. That’s .01% of the amount we collected and I thought that was a pretty good error percentage, but that’s not the case. Interestingly enough, the jury’s never made aware of the amount, they only determine guilt or innocence and the amount’s determined during sentencing. And even though we were able to go back over that six year period, and do an analysis and found that there was work that we had actually provided, should have billed for, and could have billed for an excess of that amount. It made no difference.
I was sentenced to 24 months in federal prison and spent 19 months in federal prison, two months in a halfway house. I’ve devoted my life to sharing this story in effort that I’m the last dental professional that goes to prison for things that they didn’t know or understand. One of the things that was most confusing to me in the legal world, the definition of [inaudible] the fraud. I thought you meant to defraud if you sent a claim for something you never did on a patient you never saw. Certainly that would be a fraudulent claim, but the definition is much broader in that it also includes what’s considered blind disregard. Which means if you continue to do the same thing, the same way, without having systems to identify and correct those errors, you are guilty of blind disregard.
You haven’t done what’s appropriate to discover and correct those mistakes. A lot of people say, well that’s a Medicaid issue. Why do I have to worry, I don’t take Medicaid. But, if you receive payment from the government for any patient you see, that would be a patient who is a dependent of active duty military, a federal employee, anybody who is insured under Affordable Healthcare Act, any patient that has money that is dispersed by any government entity, the same laws apply. There’s a seven-step compliance program that is mandated if you accept government funding.
I speak all over the country and I’ll ask the question, “How many of you have the seven-step mandated compliance program in your practice?” I’ve had one gentleman in all the presentations that I’ve done over the last year and a half that raised his hand and I said, “Sir, can you share with me the circumstances that you determined you were going to adopt this, the seven-step program?” He said well, he actually was investigated by the authorities and learned, as a result of that investigation, that he needed to adopt and implement that program. I go around the country sharing my experience, as I said, trying to keep other professionals out of prison.

Reese Harper: So backing up to this experience, I mean, you went through an investigation for three years. How difficult was that for you to just process daily life during that period of time?

Roy Shelburne: It was tough. Every once in a while I’d get a call from a bank or my healthcare or Patterson representative, or Henry Schein, the government was there with a warrant. They had asked for the copies of the interaction I had with them. Occasionally, they would interview my colleagues. They would ask other doctors in the areas questions. I’d be alerted of that. It was not unusual that at the end of the day when we walked out, the prosecutor and the investigator would be in the parking lot, stopped my team and asked them questions.
They went all over the country. One of the things that indicated what my life was going to be like, I told you my experience in California when I first heard of the search and seizure. Monday, mid morning, when I was back in practice, directly after finding out about the search and seizure, my pastor had come across the street, the church was across the street, and asked if he could speak to me. I told my business person, “Yeah, I got to finish with a patient, but go ahead and put him in my office, love to talk with him.”
Walked in, extended my hand, I said, “Randy, I’m happy you’re here.” And he said, “Well, when I tell what I have to tell you, you may not be happy I’m here.” I said, “Why?” He said, “Had a couple of visitors this morning, had a prosecuting attorney and an investigator with a subpoena. They subpoenaed a copy of that church service recording. They thought you may have said something during that service that would have incriminated yourself.” So, there was nothing in my life that they weren’t delving into. Like I said, no area that they weren’t aware of.

Reese Harper: The official kind of, is there an official report post-trial that documents the discrepancy in the billing so that you can… Like who gets to know about that actual… Is it public available information or?

Roy Shelburne: Yeah. The transcript of the sentencing, that goes through the whole dialogue. And, to be honest with you, the judge was very good to me. A lot of very providential things happened while I was going through the process. The Supreme Court defined a single word in the money laundering statutes six days before I was to be sentenced. So I had been going to the courts, getting to the Supreme Court over about five and a half years. The argument was regarding the confusion about the definition of the word proceeds in the money laundering law. The Supreme Court defined that word definitively six days before I was to be sentenced and my attorney read the Supreme Court’s decision or definition of the word, and we said, “The way they defined this, I don’t think it’s defined in a way that it will apply in your case.”
And five of the charges were money laundering charges, so that was the bulk of what I was found guilty of. My attorney wrote a motion to the judge asking to set aside the money laundering statute based on the Supreme Court decision that happened six days before I was to be sentenced. Going into sentencing, there’s a pre-sentencing report that establishes the amount of time that I would be sentenced to, and there’s a maximum and a minimum. The maximum when I was going into sentencing was 27 years. The minimum was 15 years.
Going into sentencing, the best I could have hoped for was 15 years. But my attorney had wrote the motion to set aside the money laundering statute and going into sentencing didn’t know if the judge was going to agree or not. The judge started by saying that he was going to deviate from the mandatory and as soon as he did that, my attorney groaned a little bit, and the paralegal on the left started to cry and come to find out that this judge had deviated from time to time, but it was almost always upward, not downward. They thought he was going to give me more than the 27 years. But the judge actually agreed with my attorney’s argument that the word did not apply in my case, so he set aside the money laundering statutes, money laundering charges, which was five of the seven, which left the healthcare fraud, racketeering, and structuring.
It reduced the mandatory to 47 months, but he actually sentenced me to 24 months. In his description of the reason why, he said there was significant evidence that supported both sides so that a verdict could have been made either way. He wouldn’t set aside the jury’s verdict, but he would reduce the sentencing guidelines to 24 months. I was very, very blessed that that happened. That word was changed again about four months afterward in a way that it would again apply in my situation, so I had a six to eight full months window of opportunity to be sentenced, or I’d still be in jail today. I’d still be in prison. Remain sentenced.

Reese Harper: That’s crazy, man. So where did you serve time?

Roy Shelburne: Manchester, Kentucky.

Reese Harper: Okay.

Roy Shelburne: I could have been sentenced to a facility that’s four miles from my home, but I had a number of patients who either worked or administered there, so there was the argument that I could have gotten preferential treatment if I had treated them well. It could have gone bad for me had I treated them poorly. But, I guess the take home for everybody is treat everybody nice, you’re never going to know when they’re going to have a place of authority over you. But, they sent me to Manchester, Kentucky, which is about two and half hours away.

Reese Harper: What was that like? Like what was your expectation going into prison and what was it like coming out?

Roy Shelburne: I didn’t have any expectations going in. I was in a prison camp, certainly not a country club. There were no bars on the door. There were no gates that you had to go in and out of. Basically what we did is we provided maintenance and upkeep for the larger medium security facility that was adjacent to us. Now, the people on the medium security were behind bars and didn’t have a whole lot of-

Reese Harper: Flexibility.

Roy Shelburne: Yeah, leeway at all. So, I started, I swept floors and then I was promoted to washing windows, and I ended up being the librarian. I helped guys with books, made recommendations for them to be able to read.

Reese Harper: Uh-huh (affirmative). Did you ever have a situation where your experience as a dentist was used?

Roy Shelburne: I had some questions. There’s a dental clinic on all the facilities. I wasn’t allowed near it. Though I had expertise that I might be able to utilize in the different area. So did, some of the guys ask me, have dental questions, yeah. I answered those guys, gave advice to them, but otherwise-

Reese Harper: Did you get out early from your sentence or did you have to serve the whole period?

Roy Shelburne: In the federal system the maximum amount of good time you have reducing your sentence is 15%. I was sentenced to 24 months. It was 19 months actually in the federal facility and two months in a halfway house prior to coming out. Lost my license to practice dentistry as a result of. Interestingly enough, I got my dues renewal for the American Dental Association when I was in prison.
I sent a letter back and said, “You know where I am. I don’t have my license anymore. Can’t practice dentistry, so I’m going to let my membership lapse.” Got a great letter back from the administer of the Virginia Dental Association, that was Terry Dickinson. They continued to comp my dues. I got a letter, “You’ve been a great supporter of organized dentistry in a state association. If and until you can become able to pay these on your own, we’ll continue to keep you as an active member.”

Reese Harper: That’s cool.

Roy Shelburne: It was extremely cool, and I was shocked. In Virginia, the mandatory period of revocation is three years. I actually voluntarily surrendered my license for revocation prior to going into prison because it takes an act for the whole board. They were not going to meet prior to my going into prison. So they would have met, revoked my license after I’d gotten out, would have extended the period of revocation, so I decided prior to going in. I voluntarily surrendered my license to practice.
Was able to reapply for my license in July of 2011, did about almost 400 hours of CE during that three-year period. I went back to the dental school at VCU, rotated through the different departments there for 61 hours, so they could write a letter of support for my reinstatement. Took my boards over again after that 32 year period. Passed them a second time. I was pretty proud of myself. Made the argument before the board in December. December 1st of 2011 my license was reinstated. So, I’m able to practice dentistry again. I do sometimes provide local support and volunteer over the state’s, there are multiple non projects, I love being able to do that.

Reese Harper: That’s cool.

Roy Shelburne: Never thought I’d be able to get my license back again. And that was one of the most shocking things that have happened.

Reese Harper: Part of me… I’m going back to the situation where your family’s going through three years of wondering like, what’s going on. Part of me, like… And I don’t want to be insensitive because I’m sure this was really difficult, but part of me wonders if all your kids and your wife ever like questioned, “What’s really going on? We thought we knew dad really well, but this has been going on forever. What’s going on? Is he not telling us something? Is he… ” Because I get the sense that you’re genuine lack of knowledge around what was going on, probably felt authentic enough for them not to question what was happening because you… I would imagine you just don’t know what’s going on, and you’re like, “I seriously don’t know.” And you were probably just comfortable and not anxious or worried or stressed out. But I’m just curious how that dynamic played out.

Roy Shelburne: Well, yeah, I can’t get into their head, but I can tell you about their behavior. My wife has been the Rock in my life, has been unwavering in her love and support through the whole process. While I was away in prison, that was a two-hour drive and she made that drive every single weekend to visit except one, the weather was so bad that even the guards couldn’t come in. That’s cool to visit. If you want to see a picture of unconditional love, a person who is giving and has a heart bigger than all outdoors, I can show you a picture of my wife and that would be it. She worked with with me for about six months and when we first opened the practice and it became clear I could have a wife or a team member, we wouldn’t work together.
That was one dynamic that we couldn’t overcome. We had this agreement that divorce is something we would never consider. My children. I had a conversation with them after they pulled them out of the classroom, and I suggested that I was going to plead guilty. I had a daughter that stood up with her finger in my face, and she said, “Dad, if you do that, I’ll never forgive you because you’re going to be serving to something that you didn’t do.” I said, “Well, the deal is if I ever see anything in your life that would suggest to me that this is affecting you negatively, I’ll pull that trigger because I can’t stand to watch that.” You know that it did have a very profound and direct effect on their lives. They kept their side of the bargain.
Of the three children I have, my oldest son is a dentist. He graduated in May the year I surrender my license in August and went to prison. He had no intention of coming back to my practice. But as a result of the search and seizure, we didn’t have any money to continue to support him. So even though he didn’t intend to come back to my practice, he, because of finances, decided to sign a contact with the state of Virginia agreeing to pay to treat the indigent in repaying his tuition. So my practice qualified. It was an underserved area we were at the time, and continued to be either the poorest or second to the poorest in the state. So the majority of people under 18, over 90% have Medicaid. He has been in the practice since May of 2008 when I was incarcerated. And his only complaint has ever been that he’s too busy. And in fact, this story may be interesting to your listeners.
Right after the search, or right after the arrest, it went everywhere I went. It was on the AP. I have a friend who practices dentistry in New Jersey. He read the New York Times article about me, so it went everywhere. So even though I was still able to practice dentistry after my arrest and indictment, I didn’t think anybody would ever come. The best year I ever had financial years, I ever had financial, it was after my arrest and before my prosecution. You’ll diagnose treatment for patients and for whatever reason they don’t accept it, and literally they would sit in my chair, and I would go there again. “You really need to have this crown,” and they would look at me and go, “Yeah, I know. I can talk. I need this crown, and I want you to do it.”
And they would literally roll back in a chair and look at me and go, “I want you to do it, and I don’t know if you’re going to be here. So do it now.” Seriously. We completed more treatment during that period than ever before. A take-home to the listeners, develop that relationship with your patients, so they know who you are, they trust you, they’ll continue to seek treatment. Like I said, I thought the practice was going to be dead in the water.

Reese Harper: But it kept rolling.

Roy Shelburne: It wasn’t. It wasn’t.

Reese Harper: That’s cool.

Roy Shelburne: So you mentioned about the family and the relationships. Ups and downs, absolutely. It was hard absolutely, but we remain a very tight knit loving family who… Unconditional love. Is unconditional love.

Reese Harper: That’s cool.

Roy Shelburne: Yeah. Yeah.

Reese Harper: Well, I was reading, because this applies to everyone and at some degree or another, but it also is a pretty… I mean Medicaid, I think the ADA statistics I’ve read recently show that between 40 and 45% of dentists nationally receive Medicaid in their practice, and that’s a pretty significant portion of the population. Would you say, like in your experience, how many cases have been prosecuted in a similar way to yours? Because it seems like kind of a-

Roy Shelburne: Last year 17.

Reese Harper: How many?

Roy Shelburne: Last year 17.

Reese Harper: Wow.

Roy Shelburne: But I’d like to expand it as well. I talk about documentation, which have been helpful for me. Had I been better at documenting what I was supposed to. But documentation is something that you need to be aware of, not only from prosecution but also malpractice. That document that you generate at your clinical record will testify for you long and very directly if you choose to make the notations necessary to support medical necessity, what you, when you did it. If it’s not in your dental record, it was not seen, it was not said, it was not heard, it wasn’t done, it didn’t need to be done, it does not exist from a legal standpoint.
Many people think, “Well, I’m too busy to do that,” but take for example, there’s a board complaint. The board in every state is obligated to start an investigation. The cases that I’ve been involved with, the complaint about the treatment that dentists did, in the majority, vast majority of the cases, it’s fine. So the board is not concerned about the treatment provided, but they also as a part of that review the clinical records. If the clinical record does not meet the standard of care, the doctor’s going to get dinged anyway. I ended up having to walk in and give that doctor remediation in order to continue to maintain their license. In terms of malpractice claims. First act when a patient complains to an attorney, they’ll ask for the clinical record involved with that patient.
If the clinical record is complete and supports the doctor’s position in its entirety, that case is not going to go forward. That is a hard case for that attorney to make for the patient. But if there’s anything in that clinical record that leaves interpretation, subject to interpretation what happened if there’s a little bit of give, if there’s not the documentation to support what’s going on, that’s going to be case moving forward. Documentation needs to be at the forefront and proper billing is also necessary. There’s no such thing as an innocent mistake. You have to be careful about doing it correctly, using the code that best describes the service that you provide. Documentation and a proper coding will ensure the maximum reimbursement.

Reese Harper: If you had to go back and you had to say, “Look, if I would’ve done this, I wouldn’t have had a problem.” How would you define that?

Roy Shelburne: Number one, the documentation need to be complete. Like I said, I wasn’t very good at establishing medical necessity. There were 118 instances that could have been construed as healthcare fraud. There was one charge of healthcare fraud, so the jury had 118 different circumstances that could have been considered healthcare fraud. I’ve been found guilty, so 118. Some of them dealt with medical necessity. I did not in my clinical record make any notations about why I decided things were necessary unless it needed to be reimbursement insurance carrier, and then it was just minimum. Typically, because I was not a very good documenter, my business person, I would diagnose a need for crown and she would say that she’d come find me or the assistant and ask, “Why is this crown necessary?” And I’d rattle it off.
These tobacco cusps fractured, there’s recurrent decay around the existing amalgam restoration. It was three quarters of the tooth. The tooth needed a crown to be able to make the tooth functional again. She would be writing furiously on that note, go forward and attach that information to the claim, but it never got in my clinical record. It was substantiated and paid. In today’s world, if there’s something that is a little bit different that puts a doctor out of what’s considered normal, could trigger an audit. And in a case like that, auditor will ask for 15 records from the dentist. They review the 15 records. The scenario that I described in the clinical record, there’s no documentation than clinical need for that crown that was on the claim form. But what is your legal substantiation for the treatment that you provide your clinical records?

Reese Harper: That’s the first thing, is you would have said, “Look, if I would’ve had a little bit more detailed clinical record it-”

Roy Shelburne: Substantiating the necessity for, yes.

Reese Harper: Yeah.

Roy Shelburne: Second thing is had I implemented that compliance program, it would have taken the blind disregard off the table. Not only was this doctor concerned about doing, he was so concerned that he has this procedure that he goes through the audit procedure to identify those errors and then determine how we’re going to change the system, so those errors aren’t continued to occur.

Reese Harper: Can you briefly give us just a brief overview of what that compliance program looks like? That seven-step program?

Roy Shelburne: Yeah. The seven-step program. Number one, you need to initiate the program. Number two, you have to develop your standards. So you have to say, “This is what I… These are my expectations.” By the way, if your expectations are here and you accept a lower than what your standard is, you don’t get what you expect, you get what you accept. So develop your standards. Number two, you’re going to have… Three, you’re going to have to have a compliance officer and that’s the person who was in charge of operating the system. They don’t do the audits, but they may be the one that choose the 15 charts that you’re going to review. They’re going to set aside time in the schedule, may order pizza, whatever tools you need, they’re going to set it up for you. Number three, you’re going to have to train.
Everybody on the team needs to be up to speed on what their part is in the whole process. Number three, there needs to… Four, needs to be feedback from the team. There needs to be open communication. Then there needs to be the expectations of what it’s going to be done in the event that the standards aren’t being met. You need to continually review those to make sure that those standards are being met. And finally, there needs to be a system in which if a person is unable to meet that standard, there’s a disciplinary procedure. And ultimately if they’ve been trained, they’ve been given an opportunity to be able to give their feedback, they aren’t meeting the standards, you have to terminate that person because they are jeopardizing the entire practice.

Reese Harper: In financial services in my business, we have a huge compliance kind of problem to deal with, I’ll call it like it’s, we try to, just like you did, we try to be as honest and as ethical as we can at all times. But there’s probably some lack of documentation on maybe a particular recommendation that we might’ve had or a phone call that we had that didn’t get documented properly or someone sent us a text asking us to do something, did it make it into the record? There’s always these like gaps out there.
I’ve found that it’s one of the biggest struggles that financial services providers have, is compliance and the SEC audits that we pass through. I’m highly regulated as a fiduciary, so I have a different set of auditing standards that apply to me than maybe a commission-based broker would. I’m kind of like thinking about in my business, if I went and looked at everyone’s compliance program, it’s not going to be a very high success rate in terms of if I take a random sampling of 10 financial advisors and I audited their compliance program. Like most of them would be scared.

Roy Shelburne: I would tell you there were a couple of financial guys that spend time with me.

Reese Harper: Yeah. And some of them might’ve been intentional, like a Bernie Madoff, and some of them are just, like you said, used the word, it’s not always intentional error, but it was, what’s the word you used?

Roy Shelburne: Yeah. There’s a standard that’s developed, and even though, like I said, the definition of intent where you willfully did something, that’s not the case. Ultimately you are required to meet and you fail to meet that standard and don’t have a compliance program where you continually monitor that, identify and correct it, that’s blind disregard, like I said.

Reese Harper: Blind disregard, that’s what it was. Yeah. I feel like that’s a… If you had to sample, let’s say 10 dentists, how many do you think would have, that you’d… Would you be impressed with anyone’s program?

Roy Shelburne: I’ve been impressed with one team’s program. Yeah, they actually had it in place and they were working the system.

Reese Harper: So not even one out of 10 though on average-

Roy Shelburne: Oh my God, no. That would be one out of probably 1,000, 1,500.

Reese Harper: How many people would you say are probably aware of the issue, and know something?

Roy Shelburne: Unless they’ve listened to me, probably very few. Let’s put it down to brass tacks. Actual scenario dentists had since a claim in for crown, accompanied by a PA to establish medical necessity, doc, who was not involved. The PA that was sent was not a good one. It was not considered clinically diagnostic. The consultant who worked for the insurance company looked at that X-ray and said, “This is not diagnostic. They’ve built for it. Wonder if we go through this practices radiographs and do a little audit, I’m wondering how many radiographs they build for been paid for that are nondiagnostic?” Triggered an audit, pulled 15 charts. Of the 15 patients when they reviewed the X-rays, 17% of the X-rays that were built for were nondiagnostic.
They used the 17% number to extrapolate over a six-year period because the statute of limitation on fraud is six years. They multiplied the 17% by every single payment they’d make to this practice for their X-rays over the six years. They wrote a check back to the insurance company for $72,000. That’s the world we live in. That’s where compliance comes in. Number one, radiographs with insurance carriers are a huge issue. Number one, they need to be medically necessary, not because the insurance are going to pay for them. I’ll audit practices and there’ll be a notation in the clinical record that says X-rays or not due.
My hope is when I ask them, “What does that mean?” Is they’re going to tell me that they had a conversation with the doctor. The doctor has reviewed the patient’s case and risk factors, and determine at this point the patient cannot benefit from the radiographs. When I ask that question, what does it mean X-rays are not due, what do I get? What’s the answer? The answer is they’re not going to pay for that.

Reese Harper: It’s not going to pay for them.

Roy Shelburne: We are generating treatment plans based on what the insurance companies are going to pay for, which is dangerous on so many levels. But number one, you need to establish medical necessity for that X-ray. The doctor in every state except two in Colorado and Oregon where the hygienist has a certificate, they can practice on their own and diagnose. They can determine the need for radiographs. In every other state in the nation only the doctor can determine the need for radiographs. You can’t have a standing, okay, a patient, we’re going to take vitamins every year, or we’re going to take Panorex or full mouth series every three years. That’s inappropriate. That has nothing to do with the patient’s needs.
Number one, the medical necessity. And if you want a document to review that’s going to help to guide you, in 2008, updated in 2012, the FDA and the ADA put together a document that establishes what is determined as medical necessity for radiographs. It even gives you a graph with risk factors on one side, age on the other, and then the box, it will determine under normal circumstances this would be recommended for this patient. You can use that for your ground level how you do that. No one that they are medically necessary. Number two, that they’re clinically acceptable. And number three, there needs to be a notation that the doctor actually reviewed them. That is a complete document that substantiates the need for the fact that they are clinically diagnostic and that they were read. That’s the whole cycle.

Reese Harper: Yeah, that’s great insight. I feel like there’s people listening to this right now or there’s a definitely a chunk of the audience listening that’s been uncomfortable.

Roy Shelburne: Well, a lot of speakers, a lot of people who consult say, “I don’t want to scare you.” I’m not that guy. I’m going to tap.

Reese Harper: Yeah, of course, man.

Roy Shelburne: But I also want to give you the tools necessary to implement systems in your practice where you don’t have to be afraid.

Reese Harper: Yeah. Well, it’s a very good experience for us to all hear your story and kind of understand good intentions and even relationships.

Roy Shelburne: But good intentions mean nothing.

Reese Harper: You know. It’s like it doesn’t matter and it’s sad, but that’s the world that we live in and we’ve got to deal with it. I think in any profession that it’s being regulated, you definitely got to dedicate a meaningful amount of resources towards compliance.

Roy Shelburne: We are a group that was for a large amount of time, completely unregulated. The powers to be focused on medicine, and there has been so much focus on medicine. They have programs now to meet all the requirements. Dentistry, not so much, but we’re the second, I guess point of the spear that they’re looking at. It’s kind of like, okay, we’ve got medicine, we’re compliant there, we’ve got people understanding. Now we have our dentist who are now wanting to play in the medical world. We build medical insurance for a lot of the things that we provide. If it’s a medical necessity, which is all well and good, you’re going to get paid at the better rates if it is considered medically necessary. But with that also comes with greater compliance requirement.

Reese Harper: I’m going to let people go here with a lightning round of questions that you don’t know are coming. They’re fast and they’re fun. They’re not too intense. First question is, favorite food.

Roy Shelburne: Prime rib.

Reese Harper: You can use top two if it’s a difficult choice for you.

Roy Shelburne: No, that’s not difficult.

Reese Harper: That’s the one. Okay. Favorite place to vacation?

Roy Shelburne: On a cruise ship.

Reese Harper: Nice. What area of the world would you go to? Alaska or the Caribbean?

Roy Shelburne: Caribbean, no. Have you seen my face? I’m looking lines work.

Reese Harper: Sports or the arts?

Roy Shelburne: Depends on the sport and the arts.

Reese Harper: Explain.

Roy Shelburne: Like high school basketball, high school football, not so much on pros. I’m a big music theater kind of guy.

Reese Harper: Name a play.

Roy Shelburne: Hamilton.

Reese Harper: Nice. Where’d you see it?

Roy Shelburne: New York.

Reese Harper: Favorite-

Roy Shelburne: It’s like being asked to speak at the Greater New York dental meeting.

Reese Harper: That’s what I’m talking about man. Yeah, we’re not there. I literally at Greater New York last year, it was like every couple hours I was hitting a play, I was waiting for stub hub to just give me a cheap deal on a ticket and I went to like five or six shows. I’m a huge theater buff, so I love it, man.

Roy Shelburne: No, no. I did the same thing.

Reese Harper: We have to go to one together and next time.

Roy Shelburne: That’d be great.

Reese Harper: Keeping it up, lightening round, I’m going to pay off my debt or I’m going to invest the money?

Roy Shelburne: Invest. It’s good enough.

Reese Harper: What’s good to?

Roy Shelburne: Home mortgage. Pretty confident not so much.

Reese Harper: What’s your best piece of advice for a dentist? Your top piece of advice you’d give, maybe top two or three if you can’t think of one, but your top piece of advice for a new dentist going into his career?

Roy Shelburne: Going into the career start with some things in place. Get advice and guidance from a mentor. Do you have to pay for it? Not necessarily. Go to your state association or your local association. Find some guy that is successful. Ask if you could shadow and shadow the guy.

Reese Harper: That’s great man. That’s great insight. Well Roy, thank you so much for taking the time today. We thought we learned a lot about a lot of different things. We got to know you better and I just can tell you’ve got a big heart. I’ll let you leave the parting words with anybody that you’d like to leave with them.

Roy Shelburne: Yeah. Just use me as a resource. My whole goal in life is to literally prevent this from happening to anybody else. If you need some help, some guidance, if you have somebody that’d like to share. If you’d like me to share my story to a group you’re with, love to be able to do that. That’s what I live my life for, is to share the story, not because I’m proud of it, because it’s shameful what I went through. But by sharing my story, if I prevent one person from going through the same thing I went through, I will consider that a reasonable success.

Reese Harper: Man, for all you’ve got a huge heart and a really, really gracious person. I really appreciate you taking the time and really look forward to all the lives that you’ll continue to impact. Thanks so much for sharing your story-

Roy Shelburne: Reese, thank you.

Reese Harper: … and being a part of the solution, man.

Roy Shelburne: Thanks for helping me get the story out.

Reese Harper: Yeah, we look forward to doing again. Talk to you soon.

Roy Shelburne: All right. Thanks.

Reese Harper: Thanks again to Roy for sharing so much about his personal journey. I really enjoyed it. Many times I end the interviews with, I hope you found this valuable, and for me, this interview, it’s more than a hope. I know that compliance issues really affect my business and really can affect yours. I really appreciated the candor that Roy brought to this interview. It’s difficult to share so much personal information in one short episode. I really appreciated what he did. Thanks again, Roy. I hope everyone enjoyed the interview as much as I did.

Practice Management