You are on page 1of 240

Page 1

SOAH DOCKET NO. 529-13-0997 HHSC-OIG CASE NO.: P20111316523848911 ANTOINE DENTAL CENTER, ( Petitioner vs. TEXAS HEALTH AND HUMAN SERVICES COMMISSION, OFFICE OF INSPECTOR GENERAL, ( Respondent ( ADMINISTRATIVE HEARINGS ______________________________________ HEARING VOLUME I TUESDAY, MAY 28, 2013 ______________________________________ ( ( ( ( ( ( ( ( STATE OFFICE OF ( BEFORE THE

BE IT REMEMBERED that on this the 28th day of May, 2013, between 9:17 a.m. and 5:07 p.m., the above-entitled matter came for hearing at the State Office of Administrative Hearings, William P. Clements Building, 300 West 15th Street, Fourth Floor, Austin, Texas, before the Honorable Judge Howard Seitzman and Honorable Judge Catherine Egan; and the following proceedings were reported by Renea Seggern, Certified Shorthand Reporter.

ken@kenowen.com * www.kenowen.com 800.829.6936 * 512.472.0880

a34cb9f9-4092-4b01-a7ff-1635cabdc746

Page 2
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

A P P E A R A N C E S ADMINISTRATIVE LAW JUDGES: Honorable Howard Seitzman Honorable Catherine Egan STATE OFFICE OF ADMINISTRATIVE HEARINGS William P. Clements Building 300 West 15th Street, Suite 504 Austin, Texas 78701 FOR THE PETITIONER: CANALES & SIMONSON, P.C. Mr. J.A. "Tony" Canales Mr. Hector Canales 2601 Morgan Avenue Corpus Christi, Texas 78465 (361) 883-0601 ROBERT M. ANDERTON, D.D.S., J.D. Mr. Robert M. Anderton 1909 Walnut Plz Carrollton, Texas 75006 (972) 416-5251 HILDER & ASSOCIATES, P.C. Mr. Philip H. Hilder Mr. William B. Graham Mr. James G. Rytting 819 Lovett Blvd. Houston, Texas 77006 (713) 655-9111 BROWN MCCARROLL Mr. Thomas Watkins 111 Congress Avenue Suite 1400 Austin, Texas 78701 (512) 703-5752

ken@kenowen.com * www.kenowen.com 800.829.6936 * 512.472.0880

a34cb9f9-4092-4b01-a7ff-1635cabdc746

Page 3
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

A P P E A R A N C E S FOR THE RESPONDENT: WATERS & KRAUS, L.L.P. Mr. Dan Hargrove 600 Navarro, Suite 500 San Antonio, Texas 78205 (210) 349-0515 WATERS & KRAUS, L.L.P. Ms. Caitlyn Silhan 3219 McKinney Avenue Dallas, Texas 75204 (214) 357-6244 MORIARTY LEYENDECKER, P.C. Mr. James R. Moriarty 4203 Montrose, Suite 150 Houston, Texas 77006 (713) 528-0700 KHAROD LAW FIRM, P.C. Mr. Ketan Kharod P.O. Box 151677 Austin, Texas 78715 (512) 293-1556 ATTORNEY GENERAL OF TEXAS Mr. Raymond C. Winter, Chief Ms. Margaret M. Moore, Assistant Attorney General CIVIL MEDICAID FRAUD DIVISION P.O. Box 12548 Austin, Texas 78711-2548 (512) 936-1709

ken@kenowen.com * www.kenowen.com 800.829.6936 * 512.472.0880

a34cb9f9-4092-4b01-a7ff-1635cabdc746

Page 4
1 2 3 4

A P P E A R A N C E S FOR THE RESPONDENT: HEALTH AND HUMAN SERVICES COMMISSION - OFFICE OF INSPECTOR GENERAL Mr. Enrique Varela Mr. John R. Medlock 11101 Metric Blvd. Building I Austin, Texas 78708 (512) 491-2000

8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

ken@kenowen.com * www.kenowen.com 800.829.6936 * 512.472.0880

a34cb9f9-4092-4b01-a7ff-1635cabdc746

Page 5
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

I N D E X - VOLUME I Appearances............................................2 Proceedings............................................7 WITNESSES FOR RESPONDENT: LINDA ALTENHOFF, D.D.S. Direct Examination by Mr. Hargrove...............42 Cross-Examination by Mr. Canales.................85 Examination by Judge Seitzman...................112 Examination by Judge Egan.......................115 Redirect Examination by Mr. Hargrove............116 Recross-Examination by Mr. Canales..............118 Further Redirect Examination by Mr. Hargrove....120 Further Recross-Examination by Mr. Canales......121 LARRY TADLOCK, D.D.S. Direct Examination by Mr. Hargrove..............126 Cross-Examination by Mr. Canales................178 Examination by Judge Egan.......................228 Examination by Judge Seitzman...................231 Redirect Examination by Mr. Hargrove............232 Reporter's Certificate...............................240 E X H I B I T I N D E X FOR THE PETITIONER NO. DESCRIPTION 78 79 80 81 Texas Medicaid Bulletin - January/February 2008 Texas Medicaid Bulletin - July/August 2008 Benefit Info. for Clients with Cleft Palates Texas Medicaid Bulletin - May/June 2012 E X H I B I T I N D E X FOR THE RESPONDENT NO. DESCRIPTION 1 Medicaid Provider Enrollment Application and Information for Dr. Behzad Nazari 3 Certified Copy of TSBDE Agreed Settlement Order 18 PAGE 18 PAGE 85 85 85 85

ken@kenowen.com * www.kenowen.com 800.829.6936 * 512.472.0880

a34cb9f9-4092-4b01-a7ff-1635cabdc746

Page 6
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

E X H I B I T

I N D E X

FOR THE RESPONDENT NO. DESCRIPTION 4 5 7 8 9 11 12 13 14 15 16 17 18 29 41 49 Current CV of Charles W. Evans, D.D.S. Report by Charles W. Evans, D.D.S. HLD Score Sheets completed by Dr. Evans Current CV of Larry P. Tadlock, D.D.S. Report by Larry P. Tadlock, D.D.S. HLD Score Sheets completed by Dr. Tadlock Dental Records for 63 Patients (Index states "Reserved") THHSC 2008 TMHP Procedures Manual THHSC 2009 TMHP Procedures Manual THHSC 2010 TMHP Procedures Manual THHSC 2011 TMHP Procedures Manual Current CV of James W. Orr, D.D.S. Current CV of Irwin K. Ornish, D.D.S., M.S. Amounts Paid - Texas Medicaid Orthodontic and Dental Services Summary of Voluminous Data prepared by Dr. Tadlock 51 Birgit Thilander Article 156 PAGE 18 18 18 18 18 18 18 18 18 18 18 18 18 18 18 167

ken@kenowen.com * www.kenowen.com 800.829.6936 * 512.472.0880

a34cb9f9-4092-4b01-a7ff-1635cabdc746

Page 7
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

P R O C E E D I N G S JUDGE EGAN: We are convening in SOAH Docket

Number 529-13-0997, Antoine Dental Center, Petitioner, versus Texas Health and Human Services Commission, Office of Inspector General, Respondent. Today is May 28th,

2013, and we are in the William P. Clements building in Austin, Texas. My name is Catherine Egan and I'm one of the administrative law judges assigned to preside over this hearing. With me as co-presiding ALJ is Howard Seitzman. Would you like to introduce yourself? JUDGE SEITZMAN: JUDGE EGAN: Hi. Howard Seitzman.

The proceeding will be

conducted pursuant to the Administrative Procedure Act and the statutes and rules that governs the Health and Human Services Commission, Office of Inspector General, and the State Office of Administrative Hearings. At this point, let me have the representatives of the parties identify themselves for the record beginning with the Petitioner. MR. CANALES: JUDGE EGAN: Yes, Your Honor. And if you could stand and give

your name and spell it and then also any -- introduce the rest of the attorneys that are also appearing in this matter, that would be appreciated.

ken@kenowen.com * www.kenowen.com 800.829.6936 * 512.472.0880

a34cb9f9-4092-4b01-a7ff-1635cabdc746

Page 8
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

MR. CANALES:

Yes, Your Honor.

I'm the

attorney in charge for Antoine Dental Center, my name is J.A. Tony Canales, C-a-n-a-l-e-s. Assisting in the case

will be Mr. Hector Canales, also will be Mr. Phil Hilder and Mr. Jim Rytting. Mr. Hilder, Mr. Rytting and Mr. Bill They will be

Graham will also be assisting in the case. presenting to the court Dr. Kanaan. JUDGE EGAN:

I thought it would be easier if

you introduced them, but I think it's making it more -THE COURT REPORTER: JUDGE EGAN: MR. CANALES: Okay. We also have, of course, Dr. It's fine.

Nazari and we also have Dr. Anderton, who will be assisting us in our case. sorry. That's our team. Oh, I'm

Mr. Tom Watkins from Brown McCarroll will be

assisting us, also. JUDGE EGAN: All right. And I'll remind the

parties, since there are so many attorneys that are present today representing each side, that when you stand to address us, that you identify yourself for the record so it's clear. For Respondent. MR. HARGOVE: Judge Egan, good morning. My

name is Dan Hargrove, H-a-r-g-r-o-v-e, and we represent the State of Texas, Office of Inspector General. And on

ken@kenowen.com * www.kenowen.com 800.829.6936 * 512.472.0880

a34cb9f9-4092-4b01-a7ff-1635cabdc746

Page 9
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

my team is Mr. Jim Moriarty, Mr. Ketan Kharod, Ms. Caitlyn Silhan. Did I miss anybody? And Raymond, would you introduce your team, please? MR. WINTER: Raymond Winter, W-i-n-t-e-r, Also representing the And we also have

with the Attorney General's Office. State of Texas, and Margaret Moore.

representatives of the HHSC-OIG with us today. MR. VARELA: MR. MEDLOCK: MR. HARGOVE: JUDGE EGAN: Enrique Varela. And John Medlock. Thank you, Judge. I will also remind the parties

that whichever attorney begins a witness will have to stay with that witness throughout the hearing, so we don't permit several attorneys to take one witness. MR. HILDER: JUDGE EGAN: Judge -Yes? Again, if you will identify I --

JUDGE SEITZMAN: yourself for the record. MR. HILDER: matter, Judge.

Phil Hilder.

A housekeeping

I believe in Order Number 6 by this court,

there was an order that no attorney may participate in this case without showing authority. We are just a bit confused. his own law firm, Kharod Law Firm. Mr. Kharod has

We don't believe that

ken@kenowen.com * www.kenowen.com 800.829.6936 * 512.472.0880

a34cb9f9-4092-4b01-a7ff-1635cabdc746

Page 10
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

there is authority for him to appear.

He doesn't -- he's

not under a contract with the Attorney General, the Attorney General's contract went to Mr. Hargrove and Mr. Moriarty, but doesn't extent to a third law firm. So we

believe that it would be improper for him to participate in these proceedings. JUDGE EGAN: MR. HARGOVE: OIG. Response. Judge, he's been retained by

He works with the law firm of Waters & Kraus, which

is my law firm. MR. HILDER: that: Judge, just in response to

The contract says that if he is contracted -- if he

is a subcontractor, pursuant to 9.2, Assignment of OCC, outside counsel may not assign this OCC or delegate any right or duty under this OCC without prior written approval from the Agency or the Office of Attorney General. JUDGE EGAN: All right. Well, since this is

the first time it's been brought to our attention, we are going to -- I will hold off on that to give you time to obtain whatever authority you have to allow Mr. Kharod to represent -MR. HARGOVE: Judge, he's named in the

contract and he works with the Law Firm of Waters & Kraus. JUDGE EGAN: Is he going to be taking a

ken@kenowen.com * www.kenowen.com 800.829.6936 * 512.472.0880

a34cb9f9-4092-4b01-a7ff-1635cabdc746

Page 11
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

witness this morning? MR. HARGOVE: JUDGE EGAN: over the lunch break. JUDGE SEITZMAN: know if he's a partner -MR. HARGOVE: Waters & Kraus. JUDGE EGAN: All right. And my Correct. He's employed by He's employed, or I don't He is not, Your Honor. Then we will take a look at it

understanding is although Antoine Dental Center is the Petitioner in this case, Texas Health and Human Services Commission, which we typically refer to as HHSC, is the party carrying the burden of proof; is that correct? MR. HARGOVE: JUDGE EGAN: That is correct, Your Honor. Because of that, the party

carrying the burden of proof is allowed to present their case first, is allowed to begin the opening and closing first. Additionally, I understand, Mr. Canales, that you asked that we invoke the Rule. MR. CANALES: JUDGE EGAN: MR. CANALES: JUDGE EGAN: MR. CANALES: Yes, Your Honor. Is that still a request? Your Honor -Whatever makes you comfortable. If the Court's ruling

ken@kenowen.com * www.kenowen.com 800.829.6936 * 512.472.0880

a34cb9f9-4092-4b01-a7ff-1635cabdc746

Page 12
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

regarding the Rule, the 408 ruling, regarding whether or not Mr. Stick can testify as to conversations of settlement or offers of settlement in that Informal Conference Hearing. If the Court will rule that it cannot

commit, then I'm not going to call Mr. McClendon. I do need Mr. McClendon as a witness in this case, which will be my rebuttal witness. And I cannot

recall when I believe that was kind of a yes or no or we were going to carry that motion, but I never got a straight ruling from the Court, forgive me. So if Stick

cannot testify or bring the topic up of 408, then I'm not going to invoke the Rule. Of course, they can invoke the

Rule if they wish, but I want the Court to understand where I'm coming from. right now. JUDGE EGAN: MR. CANALES: believe, on both sides. JUDGE EGAN: I believe that Judge Seitzman Is that the only -That's the only witness, I Mr. McClendon is in the courtroom

was leaning to excluding that information and I think he stated like a tree in a hurricane, that's how far he was leaning. My inclination is to protect any settlement

conference material, but I had not made ruling. MR. CANALES: JUDGE EGAN: Yes, Your Honor. So is the only witness --

ken@kenowen.com * www.kenowen.com 800.829.6936 * 512.472.0880

a34cb9f9-4092-4b01-a7ff-1635cabdc746

Page 13
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

because there are a number of people here and I don't know who belongs to whom or whether or not they are witnesses. Are there any other witnesses in the hearing room that are not a party representative? MR. CANALES: Honor. Not that I know of, Your

They are all either experts or parties to the

litigation. MR. HARGOVE: Your Honor, we have Dr. The

Altenhoff and she will be our first witness.

gentleman standing up is Dr. Tadlock, who is our expert. JUDGE EGAN: My understanding is there is no

objection to having the experts remain in the room. MR. CANALES: Yes, Your Honor. And I also

have Dr. Orr in the audience, so my understanding is the Rule doesn't apply -JUDGE SEITZMAN: to fact witness. a mix. JUDGE EGAN: Mr. McClendon -Let me just ask: Mr. The Rule generally applies

It gets a little bit dicey when you have

JUDGE SEITZMAN:

Hargrove, are you still planning on calling Mr. Stick with the purpose of going into the -MR. MORIARTY: Judge, I clearly hear what

you say on that, and when that tree fails to blow over, we will call him. Otherwise, we will not call Jack Stick for

ken@kenowen.com * www.kenowen.com 800.829.6936 * 512.472.0880

a34cb9f9-4092-4b01-a7ff-1635cabdc746

Page 14
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

that purpose. JUDGE SEITZMAN: Okay. Maybe what we can do

is -- I really don't want to delay any further than we already are getting, time in terms of the hearing, maybe we can take up the issue of Mr. Stick right before the lunch break or during the morning break and see if we can get that settled with respect to. MR. MORIARTY: Let me be more clear. I'm

not calling Jack Stick for that purpose.

I hear what you

say and I hear what you say and we will not offer any testimony about things that were said in that conference, settlement conference or not. that. JUDGE SEITZMAN: MR. CANALES: the Rule. JUDGE EGAN: invoked; is that correct? MR. HARGOVE: JUDGE EGAN: That is correct. All right. One final house So neither party wants the Rule Thank you, Mr. Moriarty. We will not testify about

So I withdraw my invoking of

cleaning procedure, I'm going to go through just what we had admitted so that it's clear. Has somebody given the court reporter a list of their exhibits both from the Petitioner and the Respondent?

ken@kenowen.com * www.kenowen.com 800.829.6936 * 512.472.0880

a34cb9f9-4092-4b01-a7ff-1635cabdc746

Page 15
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

MR. CANALES: JUDGE EGAN:

Our list is in front. I believe the only exhibit that Hold on

was objected to for Petitioner was Exhibit 76. just a second.

There were no objections to Petitioner's

exhibits except for Petitioner's Exhibit; 76 is that correct? JUDGE SEITZMAN: Houston. That was Mr. Houston, Fread

Since Mr. Houston is being held as a rebuttal

witness as I understand it, there's not a need to rule on 76 at this point. MR. CANALES: Yes, sir. Is that correct?

JUDGE SEITZMAN: MR. CANALES: JUDGE EGAN:

That would be fine. With respect to Respondent, I'm

just going to read the ones that are admitted at this time. Some were offered as demonstrative, others as

rebuttal, so I'm only going to go through those that have been admitted. Respondent's R-1, R-2 -MR. CANALES: We didn't get to R-2. We did

not get to R-2, we didn't open it.

R-2, R-6 and R-10 are

the three items that came in that were not -- they were not admitted, Your Honor. JUDGE EGAN: exhibits? These are Respondent's

ken@kenowen.com * www.kenowen.com 800.829.6936 * 512.472.0880

a34cb9f9-4092-4b01-a7ff-1635cabdc746

Page 16
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

MR. CANALES:

I can make it easier for the A total of five that we have

Court, Your Honor, if I may.

objections to, I think everything else comes in. JUDGE EGAN: objections to? MR. CANALES: R-2, which was the one -- the R-6, R-10, R-33 -- and What five do you have

CD-ROM, we could never open it.

R-33 is that report from Dr. Tadlock that was post-deposition -- and R-45 has that settlement, the third-party settlement in there. JUDGE EGAN: And I believe they said they It was inadvertently

were withdrawing that portion. included in our 45. objections? MR. CANALES:

So you are withdrawing all your other

Not withdrawing them; I'm just

saying that those with the ones we made objections regarding, for example, all these reports. Court overruled those last week. JUDGE SEITZMAN: I think the

I made objections on --

We couldn't rule on R-2, I have it. I was able

because we couldn't get it open. to open three.

One of them -- R-2 had a separate code

from 6 to 10, I believe. THE REPORTER: Judge, you are going to have

to speak up for me just a little bit. JUDGE SEITZMAN: Okay. We didn't rule on

ken@kenowen.com * www.kenowen.com 800.829.6936 * 512.472.0880

a34cb9f9-4092-4b01-a7ff-1635cabdc746

Page 17
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

R-2 because we couldn't get it open last week.

Mr.

Hargrove sent out the code, there was a separate code for R-2 and a common code then for 6 and 10. Mr. Canales, you weren't able to open R-2? MR. CANALES: claims data? JUDGE SEITZMAN: you would like to see it. JUDGE EGAN: it; is that correct? MR. CANALES: a spreadsheet. MR. KHAROD: easier. Your Honor, this could make it I have not. It's kind of like He's since been able to open Yeah. I have it open, if That is the so-called RNS and

What the RNS data is, is raw data which shows the

patient number and it's basically a summary of the amounts paid to Antoine Dental, four different patients. we could clear this up by -- and we can discuss stipulations later and I don't want to put Petitioner on the spot here, but basically, that would be evidence that Antoine did get paid for claims they submitted. If we can work out a stipulation that, yes, we got paid; the amount paid is not really an issue in this hearing. So that's all it would be used for. Maybe they can give it to me I think

MR. CANALES:

during the lunch hour and we can see it at that time.

ken@kenowen.com * www.kenowen.com 800.829.6936 * 512.472.0880

a34cb9f9-4092-4b01-a7ff-1635cabdc746

Page 18
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

JUDGE EGAN:

All right.

Given what's just

been said, let me go back through what I believe have been admitted, and correct me if I'm wrong. R-1, R-3, R-4, R-5, R-7, R-8, R-9, R-11, R-12, R-13, R-14, R-15, R-16, R-17, R-18 -- there were a number of exhibits being offered for impeachment so we are reserved ruling on those -- R-29 and R-41; does everyone agree that those have been admitted for the record? (Respondent's Exhibits 1, 3, 4, 5, 7, 8, 9, 11, 12, 13, 14, 15, 16, 17, 18, 29, 41 admitted.) MR. HILDER: Judge, I would ask that R-3 be It would depend if that

held in abeyance for right now.

comes in under 404(b), whether those counts in the complaint in Paragraphs 1, stay or if they are abandoned or stricken by the Court. JUDGE EGAN: We had overruled. We indicated But

it didn't go to the admissibility but to the weight. my recollection is that R-3 has been admitted. We

certainly draw our attention -- we have read it and noted that the statement that your client has not admitted the truth or the accuracy of the findings of fact, but it is a prior Board order. Any others that were -- anybody

believes were admitted that we have not mentioned? MR. MORIARTY: I want to bring your

attention on the exhibits that I think will need to be

ken@kenowen.com * www.kenowen.com 800.829.6936 * 512.472.0880

a34cb9f9-4092-4b01-a7ff-1635cabdc746

Page 19
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

dealt with.

Frankly, it's a clean-up issue.

The exhibits

that Mr. Canales offered into evidence that you are about in the process to admit, have the patients' names on them, patient identifying information and information like that. I would hold up on accepting those exhibits until that's been cleaned up. We have gone in and redacted all that

information and we have renumbered those, but we haven't had time to clean up those exhibits. JUDGE EGAN: Petitioner's exhibits? MR. MORIARTY: The Petitioner's exhibit list You are talking about

violates this Court's rules by disclosing the private HIPAA information of all of those patients, and I would encourage the Court to hold off on admitting the Petitioner's exhibits until we have properly -- until they have properly renamed them. We have those exhibits in this housekeeping deal, but I want to put you on notice what you are about to do is to disclose the HIPAA information on those 63 patients. JUDGE SEITZMAN: Well, what we had discussed

at the final pretrial, because there was also in the materials that came from the Respondent, there were pictures of individuals' faces and stuff, and so I thought what we had agreed to do was we would admit them, but give

ken@kenowen.com * www.kenowen.com 800.829.6936 * 512.472.0880

a34cb9f9-4092-4b01-a7ff-1635cabdc746

Page 20
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

the parties leave to substitute a redacted copy for the record copy. MR. MORIARTY: That's fine. And we have

done that and we have now done a -- we had redacted all of the identifying data, name and birthday and stuff like that, and we have also gone in and put blanks over the faces. So we will work with the Petitioner on that. MR. CANALES: we have done that. My paralegal informs me that

We go by initials. I think we were all in

JUDGE SEITZMAN:

agreement last week that just -- because we are going to find stuff, I mean, you just try and catch everything, but you don't always catch everything. And so as we go along

and both parties catch something, let's just -- whosever exhibit it is, we will agree to redact it, and by the end of hearing, we should have a clean record copy, which is the copy we are concerned about. copies. So Mr. Canales -MR. CANALES: forgive me. Attachment A. We will do it. Judge Egan, We can destroy our

R-6 and 10, that is what is called the We objected to those last time. We have not admitted -Okay. Very well.

JUDGE EGAN: MR. CANALES:

JUDGE SEITZMAN:

Because we couldn't open

ken@kenowen.com * www.kenowen.com 800.829.6936 * 512.472.0880

a34cb9f9-4092-4b01-a7ff-1635cabdc746

Page 21
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

them.

Those where the resumes; were they not? MR. CANALES: JUDGE EGAN: No, the Attachment A. I did not admit R-2, R-6 or

R-10. MR. CANALES: JUDGE EGAN: Right. Just make sure the court

reporter has a copy of the exhibit list. MR. KHAROD: Your honor, I'm not clear for

R-2, is there an objection or is it that they can't open the file? Because we gave -- along with giving them the

Court the password, we gave the password to the other side for that one, too. So I'm not sure whether it's a

technical issue or whether it's an objection. MR. CANALES: JUDGE EGAN: Both. I believe at this point, he's

not had a chance to see the exhibit; is that correct, you could not open it? MR. CANALES: Well, what they have described

to me, it's hearsay and it was not prepared by any particular witness, and it is something made for the purpose of litigation and we object to it. Honor. JUDGE EGAN: Okay. We will deal with those. 8036, Your

I think you probably need to look at it and open it before you proceed with an objection, take a look at it and see

ken@kenowen.com * www.kenowen.com 800.829.6936 * 512.472.0880

a34cb9f9-4092-4b01-a7ff-1635cabdc746

Page 22
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

if you really object to it. MR. HILDER: If I may just revisit the issue

with R-3, I would ask that the Court to allow us to renew our objection to R-3 if, in fact, part Number 1 of the petition is somehow not proved or withdrawn or dismissed. Because then the 404(b) does not become applicable to even allow that into evidence. my concerns. JUDGE EGAN: re-raise your objection. MR. HILDER: JUDGE EGAN: opening statements? MR. HARGOVE: JUDGE EGAN: we proceed? MR. CANALES: Yes, Your Honor. Respondent Yes, Your Honor. Are there any questions before Thank you. Are we ready to proceed to When it is offered, you can So with that, I wanted to raise

today, at this point, at 8:35 filed something they called a Trial Supplement to Respondent's Complaint. JUDGE EGAN: We received those and we

will -- Judge Seitzman and I will review both the request and the response during the lunch hour and make a ruling when we come back. MR. CANALES: So how does this play

regarding opening statement?

ken@kenowen.com * www.kenowen.com 800.829.6936 * 512.472.0880

a34cb9f9-4092-4b01-a7ff-1635cabdc746

Page 23
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

JUDGE EGAN:

According to the Respondent,

they have not added anything to this, so I wouldn't imagine it would affect it at all. But if they go outside

their pleadings, I'm sure you will object. MR. CANALES: their pleadings. JUDGE EGAN: statement. MR. CANALES: I want to be sure I'm not We They haven't made their opening Well, they are going outside

agreeing to the so-called supplement, whatever it is. object to it. JUDGE EGAN: I understand the objection.

And at this point, the only thing we are heading to is the opening statements, and if -- I will remind you, opening statements are not evidence, and if we agree with you, then we will -- if there's anything in their opening statement that pertains to the new material or what you believe is new material, we will certainly not consider it. Go ahead and proceed, Mr. Hargrove. MR. HARGOVE: Dan Hargrove for OIG. Judge

Egan, Judge Seitzman, did Antoine Dental Center commit Medicaid fraud? Did Dr. Nazari and his clinics, did they Did they All

use poor Texas kids to commit Medicaid fraud?

steal millions of dollars from the Medicaid program?

ken@kenowen.com * www.kenowen.com 800.829.6936 * 512.472.0880

a34cb9f9-4092-4b01-a7ff-1635cabdc746

Page 24
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

of that is not relevant for our purposes today. not why we are here.

That's That

That fight is for another day.

fight is for another proceeding at the overpayment hearing. We think when that time comes, the evidence will

overwhelmingly show yes to all those questions. Our purpose is a different matter, our purpose is to show if there's a legal basis to maintain a payment hold because it's not Antoine's money. It's the And all

taxpayer's money, it's the State of Texas' money.

we have to do is determine if there's prima facie evidence to maintain the payment hold. So what we must show today is if there's prima facia evidence of either a willful misrepresentation involving a reimbursement claim or program violations. Some of the program violations in question are submitting or causing to be submitted a false claim, up-coding, billing for nonreimbursable services, failure to comply with the Medicaid rules, failure to comply with Dr. Nazari and his clinic's provider agreement -- which you will see shortly -- misrepresentation on a prior authorization -and we will talk about what a prior authorization is -and submitting or causing to be submitted a false statement. So this is what we have to prove in order for this tribunal to maintain the payment hold. That's

ken@kenowen.com * www.kenowen.com 800.829.6936 * 512.472.0880

a34cb9f9-4092-4b01-a7ff-1635cabdc746

Page 25
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

all we are taking about, is maintaining the payment hold either, A, a willful misrepresentation, or Medicaid program violations. Dr. Altenhoff will talk about what those program violations are. important to us. this proceeding. So what is the State's burden of proof? Judge, it's prima facia. Prima facia. And let me read to The prima So the standard is extremely

It's a very low standard of proof for

you what that standard means under the law.

facia standard requires only the minimum quantum of evidence necessary to support a rational inference that the allegation of fact is true. The minimum quantum of evidence necessary to support a rational inference that the allegation of fact is true. So if this were a criminal court, we would be up here at reasonable doubt, but we are not. If this

were a different proceeding, we might be at clear and convincing evidence, but we are not. We are not even at a

civil case where we have to show preponderance of the evidence, we are not even at the probable cause stage. We

are one step below that, between reasonable suspicion and probable cause. So as you evaluate the evidence and come to

ken@kenowen.com * www.kenowen.com 800.829.6936 * 512.472.0880

a34cb9f9-4092-4b01-a7ff-1635cabdc746

Page 26
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

a determination in this case, it's critical to understand what the State's burden of proof is, and that is prima facia. This is a messy slide, let me walk you through it, the program violations that are going to come out over the next couple of days. Step 1. Step 1 -- here is how we are going to show what happened, and the records, most importantly, are going to show this. Step 1, a patient reports to Antoine Dental Center. The patient is examined, and you will hear about So let me take you to

this HLD score sheet and Antoine scores the patient on the HLD score sheet; they take x-rays and models. Dental Center does all this. So Antoine

Some of the program

violations come in at that stage when they have the child there in the chair and the provider, the dentist is scoring the kid or whoever is scoring the child on the HLD score sheet. It's at this stage where some of the program

violations come in, where we have misrepresentations, we have a false prior authorization, and the first steps towards a false claim. Because what happens then is the ADC packages up material, information, evidence, that they sign to and they ship it off to TMHP, which is the

ken@kenowen.com * www.kenowen.com 800.829.6936 * 512.472.0880

a34cb9f9-4092-4b01-a7ff-1635cabdc746

Page 27
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

contractor that receives these requests for prior authorization for braces and they look at it and they determine whether there's sufficient medical evidence to put braces on a Medicaid beneficiary. So when Antoine ships that off to TMHP, the mere submission of those documents at that stage involves several program violations that you will see in the records. Then TMHP approves the claim, whether that is right or wrong is not relevant today. authorize Antoine to place braces. And then they

Antoine then places

braces, and then they place braces and they submit a claim for reimbursement. Again, we have another stage where Throughout this, we

program violations are committed. have willful misrepresentations.

So we have program violations involving noncompliance with the program, billing for nonreimbursable services, misrepresentation, misrepresentation, misrepresentation, false claim when they receive the money. So let's talk a little bit -- you are going to hear some of this from Dr. Altenhoff, we will detail that and pull out the manual, it's important to understand the process that a Medicaid beneficiary goes through to get braces.

ken@kenowen.com * www.kenowen.com 800.829.6936 * 512.472.0880

a34cb9f9-4092-4b01-a7ff-1635cabdc746

Page 28
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

So the Medicaid criteria for braces. decision tree, basically.

It's a

Are braces permitted under the If they want to

Medicaid program for cosmetic purposes?

do it for cosmetic purposes, no; Medicaid won't pay for cosmetic purposes. Does the child have baby teeth? couple of exceptions we will address. There are a

If the child has

baby teeth, can't get braces if the child has not had baby teeth; they are called primary teeth. need braces? Then does the child

In other words, is there a medical necessity

to place braces on that child? If the answer is, yes, there is a medical necessity to place braces on the child, then we go to the next part of the decision tree. And here is the thing,

does that child have a severe handicapping malocclusion? A severe handicapping malocclusion. dysfunctional? Is the child That is what

Can that child chew or eat?

the program is designed for, for children who are dysfunctional. pretty. teeth. Then the issue is, if there is a severe handicapped malocclusion, which is a very high standard, then we go to the next stage. Yes, then they submit prior If prior authorization It is not designed to make kids look

It is not designed to have kids with straight

authorization for reimbursement.

ken@kenowen.com * www.kenowen.com 800.829.6936 * 512.472.0880

a34cb9f9-4092-4b01-a7ff-1635cabdc746

Page 29
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

is approved, then the benefit is issued. This is just one example of a patient. You

are going to see quite a few of them, especially over the next couple of days. This is from Antoine's own records.

This is a child who presented and these are before photographs, this is how a child presented to Antoine. And as you see, these photographs over the next couple of days, ask yourself, think about it, does this child have a severe handicapping malocclusion? dysfunctional with her oral health? So what we have here -- and let me just kind of walk you through here. We have photographs from Is this child

Antoine's records, you have -- there are HLD score sheets. You are going to see some of these, and this is what an HLD score sheet looks like. And then here is how the Bottom line is, if

provider scores the HLD score sheet.

you get 26 points, that is what they are looking for. They want to get to 26 points because that is their ticket to the Medicaid dollar. And here is where they score it. certain functions. There are

If you can't see it, we will wait for

Dr. Altenhoff to talk about it, but here is where you are going to see a lot of these records. And I'm not going to

go into detail right now, but the teeth in question are the front teeth, not the back teeth.

ken@kenowen.com * www.kenowen.com 800.829.6936 * 512.472.0880

a34cb9f9-4092-4b01-a7ff-1635cabdc746

Page 30
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

Do you have a tooth that is ectopically erupted? We are talking about the 12 front teeth. And

this is where Antoine -- and Dr. Nazari scored this one, where he is saying, this young girl, every single one of her front teeth is ectopically erupted. And then he signs

it, the examiner says here, Dr. Nazari, provider's signature, Dr. Nazari, please submit this score sheet with your records. TMHP. And then we have the rule here .1671(a), submitting or causing to be submitted a misrepresentation or omitting pertinent facts when claiming payment under Medicaid or when supplying information used to determine the right to payment under Medicaid or other Health and Human Services program. So when they send that off, it's false information. That's a program violation. It serves as He scored it 36 points. He sends it off to

the basis to maintain this payment hold until we get to the next proceeding to get the State's money back. Now, you don't have to be a Medicaid provider. Dr. Nazari, his providers, they voluntarily What you will see later And

enrolled in the Medicaid program.

is you will see his provider enrollment application.

in that application, he comes to the State, he tells the State, I want to do business with you, Government, I want

ken@kenowen.com * www.kenowen.com 800.829.6936 * 512.472.0880

a34cb9f9-4092-4b01-a7ff-1635cabdc746

Page 31
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

to be a Medicaid provider, I want to get on this system. And he enrolled back in 2000 and periodically re-enrolled, and this is from his 2008 application. So this form is required for all applicants. Part I, provider information, Behzad Nazari; there is his address, 6206 Antoine Drive; and there is his signature dated January 9, 2008. this. Dr. Nazari certified to be truthful. Part II, it says, agreements and certifications: In In Let's pull out a couple parts of

consideration of the payments authorized under this agreement -- it's a contract he has with the State -- the provider identified in Part I of this agreement agrees or certifies to become familiar -- what this says is he's going to follow the rules and become familiar with the rules and he's going to stay up-to-date with the rules. And Dr. Altenhoff will talk about that. Here is the kicker, in Subparagraph E, it says, he certifies -- Dr. Nazari -- that all information contained in all claims or encountered data submitted by or on behalf of the provider is true, complete and accurate, and can be verified by reference to source documentation maintained by provider in accordance with the manual, which is going to be this document right here which you will hear about. This is the Texas Medicaid

ken@kenowen.com * www.kenowen.com 800.829.6936 * 512.472.0880

a34cb9f9-4092-4b01-a7ff-1635cabdc746

Page 32
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

Provider Procedures Manual. that. Maybe too much.

You will hear a lot about

So he's certified he's going to be true complete and accurate. The provider will provide services

for Medicaid recipients in the same manner by the same methods and the same level of quality provided to the general public. In other words, we don't have two different standards of care. We don't have a standard of care for

the Medicaid population for poor kids and a standard of care for kids who are not on Medicaid. True, complete and accurate, that's what this case is about. Was he accurate? Was he truthful? Was he complete?

And as you go through the next couple

days, you will get more of this, and later on in this afternoon. Are these severe handicapping malocclusion? These are how kids presented

These are four photographs. to Dr. Nazari.

Thank you, Judges. MR. CANALES: JUDGE EGAN: MR. CANALES: May I proceed? Yes, Mr. Canales. You will hear testimony from

Dr. Nazari and Dr. Kanaan, our two experts -THE REPORTER: MR. CANALES: I'm sorry. Who?

Dr. Nazari, Dr. Kanaan and Dr.

ken@kenowen.com * www.kenowen.com 800.829.6936 * 512.472.0880

a34cb9f9-4092-4b01-a7ff-1635cabdc746

Page 33
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

Orr.

All of them will say that this definition of what

constitutes the ectopic eruption is a very subjective matter. You will see people who are doctors in this

profession who are all over the place in the grading of it. The question has now arisen as to whether or not a

dispute and a professional opinion rises to the level of some type of fraud. That is what they are contending. Your Honor, I don't want to

MR. HARGOVE:

object, but we have made it clear we are not having to prove fraud in this proceeding. JUDGE EGAN: MR. CANALES: I understand. This is opening.

I submit that they have to

prove fraud or willful misrepresentation or some type of a false statement. get here. But you have to look as to, how did we

And we got here because some time, and the

testimony will be from other parties, that there was a television station, WFAA out of Dallas, who ran a series of stories. And in this series of stories all had to do

with criticizing the HHSC agency for spending a lot of money in the treating of Medicaid patients. As a result of that, OIG decides to investigate, automatically audit the top 25 providers in the State. Dr. Nazari fell in that category. So there

was no probable cause, there was no suspicion, there was nothing except we are going to conduct an audit. When

ken@kenowen.com * www.kenowen.com 800.829.6936 * 512.472.0880

a34cb9f9-4092-4b01-a7ff-1635cabdc746

Page 34
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

they conducted this audit, they started a campaign at that time of what is called notifying everybody about payment holds. So they give a payment hold notice and they come And I say they, OIG picks

over and pick up your records. up the records.

And they start doing these studies,

analysis of the files. The files are all in the record. We have

photographs, the photograph he showed you was only part of the photograph. You will see the entire paragraph. You

are going to see so many teeth in the next couple of days, you are going to be saying, oh, my God. And you are going

to be seeing some disparities, where the children's teeth are coming out from the top. They are terrible teeth.

And not one time did Dr. Evans, out of the 63 patients, not one time did Dr. Evans approve a single one. Not one.

Out of the 63 patients, only one patient passed the HLD score according to Dr. Tadlock. that disparity? It's because of the definition. Why is Dr.

Tadlock -- we will show you, that Dr. Tadlock and Dr. Evans are insisting on applying a definition that's outside the manual. Now, to us, I think we have offered into evidence the opinions -- the Agency's decision or the Agency's adoption of the definition by Judge Fekety. says I'm the Agency, I adopt the findings of Judge She

ken@kenowen.com * www.kenowen.com 800.829.6936 * 512.472.0880

a34cb9f9-4092-4b01-a7ff-1635cabdc746

Page 35
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

Kilgore, and here they are.

And she flat out says, this

is the Agency's definition; not the expanded version, not a clarification, but a verse that says, an unusual pattern of eruption such as high labial cuspids or teeth that are grossly out of the long axis of the alveolar ridge. That

has been the definition, by the way, that these doctors, my clients, have operated on since Day 1, since they came into the program. And when they came into the program, TMHP approved all these patients. Years later, now they are The question is: Where is the

coming back to redefine the definition. Where is Dr. Felkner? program violations? Where is TMHP?

Where is that other side of coin? What you will see is

You will never see it.

that TM -- that OIG is presently under a Federal -- is presently under a Federal -- the Office of Inspector General, Health and Human Services Commission audit, for them to be able to explain whether or not this so-called prior authorization program was working or not. response to that, we are here today. As a

There is an internal

audit that you will see in evidence came out in 2008 where State OIG conducts an audit of TMHP regarding the prior authorizations. And they say, we are conducting the prior Nobody complained;

authorizations under this standard. everything stayed the same.

ken@kenowen.com * www.kenowen.com 800.829.6936 * 512.472.0880

a34cb9f9-4092-4b01-a7ff-1635cabdc746

Page 36
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

Dr. Altenhoff will testify, because we have her deposition, I'm sure she's not going to change it, that she was kind of like a consultant for HHSC and that she had these doctors -- they call them shareholder meetings. And not one did she ever speak with TMHP, and

not one time did she tell the doctors, you are doing it wrong; you are reading the definition wrong. So I submit

to the Court that now, while they don't want to admit it, at least Dr. Tadlock says, that he is applying a different definition. He is going out of the manual. Now, none of the doctors made the rule, none of the doctors can change the rule. have to apply by the rules. the manual. All of the doctors

Those rules are put out in

You will see that the manual's definition

didn't change all until about late 2011; that's where they changed the definitions. Now, all these doctors are going to testify that pursuant to that old definition, their only definition of ectopic eruption, that these doctors made a clear, logistic, fair, dental diagnosis in treating the patients. All of them; not a problem at all. So today, what we have here is nothing but an attempt by OIG to try and recoup some money by pulling out every type of possible post-whatever audit violation that they can dream of to see because it would offset

ken@kenowen.com * www.kenowen.com 800.829.6936 * 512.472.0880

a34cb9f9-4092-4b01-a7ff-1635cabdc746

Page 37
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

State dollars going to the Feds. Now these -- all these patients, by the way, were all seen, they all exist, there's no fake patients, all the services were delivered, it's all there. The

question in all of them is whether or not these patients qualify. In the case of the Harlingen case, Judge Kilgore said the issue is the application of the HLD score. Judge, when the matter went over to the Agency,

and the opinion is also correct, Judge Fekety said the same thing. She went so far to say, oh, my God, these Dr. Evans, Evans

witnesses' experts this OIG brought in.

has never been a Medicaid provider, he has never done a Medicaid patient, and his testimony was deemed by the Agency as not credible. The testimony you will hear from Dr. Tadlock is similar; never seen a Medicaid patient, has never submitted a Medicaid bill, totally foreign to the Medicaid role. They are hired guns to be able to give you an And we understand the business; we understand

opinion.

the business, you hire experts to give you their side of case. But there has to be some logic to it. So what Dr. Tadlock has done, he's gone all over the dental world to try and expand the definition of ectopic eruption. the Agency's own position, and the

ken@kenowen.com * www.kenowen.com 800.829.6936 * 512.472.0880

a34cb9f9-4092-4b01-a7ff-1635cabdc746

Page 38
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

irony of the whole thing is they are attacking.

OIG is

attacking the findings of its parent of HHSC's findings, which makes it very unusual for OIG to be attacking the findings of HHSC. made a finding. HHSC has made a decision; they have And they say in the finding what the

evidence has been. That's why we filed our motion for collateral estoppel. So the question here today is

whether or not the definition applies that it's been all these years. We submitted to you that it does; it hasn't So how -- whether or not the testimony of

changed at all.

these two doctors, of Tadlock and Evans, has any bearing, I'll submit to you that it cannot. Judge Fekety said, once an agency refers a contested case to SOAH, the SOAH ALJ stands in the shoes of the Agency and may make any findings necessary to resolve legal issues in the case. did here. And that's what they

And they issued the authority, they issued the

rulings that these -- that makes the findings of fact. We submit to you that these two doctors are incorrectly interpreting the definition of ectopic eruption, that's what this case is all about. else. Just ectopic eruption. Nothing

We do it pursuant to the

manual, and you will see photographs that are going to shock you, I believe.

ken@kenowen.com * www.kenowen.com 800.829.6936 * 512.472.0880

a34cb9f9-4092-4b01-a7ff-1635cabdc746

Page 39
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

He showed you one photograph; you didn't see the whole side of it. But our doctors all honest doctors,

they are all hard-working people, they have been subjected to this particular inquiry. And Dr. Nazari will explain We don't have any

each and every one of these cases. problem at all defending it.

We don't have any problem at

all being subjected to cross-examination. So the question is: Does the fact that

doctors disagree on the score sheet, does that arise to the level -- does that automatically rise to the level of some type of fraud, willful misrepresentation? to word of the actual doctor work? Does not

So we don't have here

a case where, oh, my God, these were fictitious patients; we don't have a single one of that. We inquired, by the way, of Dr. Evans and Dr. Tadlock, whether they are alleging that we have done anything wrong fraudulently or falsely. He says -- both

of them said, no, all we got hired to do was to pass the score, look at the HLD score, that's all we got hired to do. Dr. Tadlock says it and Dr. Evans says it. So all of a sudden, we are now facing this tremendous amount of legal inquiry to our ability, where basically called fraud, fraudulent doctors, we are called crooks. And I submit to you that you are not going to

hear any testimony of that whatsoever.

ken@kenowen.com * www.kenowen.com 800.829.6936 * 512.472.0880

a34cb9f9-4092-4b01-a7ff-1635cabdc746

Page 40
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

Thank you. JUDGE EGAN: your direct case? MR. WATKINS: Your Honor, as a result of Would you like to proceed with

what Mr. Canales just said, I would file a motion to dismiss. The evidence is clear in this case that the hold

letter, which was sent out and dated April 4th, 2012, that is the letter which puts it on hold. The evidence then

has to be is what is the prima facia evidence or the reasonable allegation of fraud that existed as of that date, April 4th, 2012. Dr. Tadlock was not hired until June of 2012, there is no way that his testimony is relevant to anything having to do with the justification with the primary hold put on this case. The State doesn't get to

put on a hold and see if they can come up and justify it. They have got to show that at the time that they issued their letter on April 4, 2012, they had a reasonable allegation of fraud, or as they put it, a prima facia claim at that point. Now, the only other evidence that they have submitted, that's in the evidence that this Court has received, is that of Dr. Evans. He stands in the shoes --

the previous SOAH Judge stands in the shoes of the Agency. And that agency has made a finding that Dr. Evans'

ken@kenowen.com * www.kenowen.com 800.829.6936 * 512.472.0880

a34cb9f9-4092-4b01-a7ff-1635cabdc746

Page 41
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

testimony is not credible. admitted.

So therefore, it should not be

So as of April 4, 2012, the only thing they have got to show that this doctor has done anything wrong is a doctor that the Agency has a fact finding, which is binding on it, that his testimony is not credible and another doctor that they went out after April 4th, 2012, to hire to come in and provide testimony to try to shore up a case which was falling apart. We think that based upon that, we should dismiss this case at this point and we feel very strongly about that. Now, if you-all decide to go forward, we at least think that Dr. Tadlock's testimony should be motion in limine'ed out and excluded because it is not relevant to the question of the date when the hold was put on Dr. Nazari, what was the reasonable allegation or the prima facia case. So we move to dismiss the case or, in the

alternative, to exclude everything Dr. Tadlock says. JUDGE EGAN: MR. MORIARTY: Response? Y'all set a rule that we have

tried to live with, that all dispositive motions were to be filed on or before April 29th. I looked at my That motion is not

calendar, April 29th was awhile ago. timely and is not proper.

ken@kenowen.com * www.kenowen.com 800.829.6936 * 512.472.0880

a34cb9f9-4092-4b01-a7ff-1635cabdc746

Page 42
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

JUDGE EGAN: MR. HARGOVE:

The motion is overruled. I'm sorry, Judge. I thought

you were still conferring. JUDGE EGAN:

We could call Dr. Altenhoff.

You may proceed.

LINDA ALTENHOFF, D.D.S., having been first duly sworn, testified as follows: DIRECT EXAMINATION BY MR. HARGROVE: Q name. A Q Linda Marie Jackson Morris Altenhoff. And thank you for being here today; we appreciate Dr. Altenhoff, will you please state your full

your testimony. What is your profession? A Q A I'm a doctor of dental surgery. And what do you do for a living right now? Currently, I'm a policy expert for the Department

of State Health Services for dental policy, not only for Medicaid, but also for other public health dental programs for the State. Q I think it's important that the Judges hear a

little bit about your background, so let's talk a little bit about your educational background and what you've been doing for the State over the past few years. A Okay. I am a 1984 graduate of the University of

ken@kenowen.com * www.kenowen.com 800.829.6936 * 512.472.0880

a34cb9f9-4092-4b01-a7ff-1635cabdc746

Page 43
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

Texas Health Science Center Dental School in San Antonio. I was in private practice in San Marcos, Texas beginning -- shortly after my graduation. And during that time, I

served as a Medicaid dental provider for the State of Texas. In 1998, I came to work for -- at that time, the

Texas Department of Health, serving as a regional dental director based out of San Antonio, Texas. And during the course of that time, I oversaw the Texas Health Steps Medicaid Dental Program and Medical Program for the State of Texas, as well as other Medicaid-related programs and the public health program for the 28 counties covered under Health Service Region 8. In 2001, I was requested to come to the central office in Austin as an interim division director for the Texas Health Steps Medical Program. Q Program? A Texas Health Steps is the Texas program that's So what is the Texas Health Steps Medical

obligate -- or mandated under the Social Security Act, and in particular, the early and periodic screening, diagnosis and treatment plan as mandated by the Federal Government. Q And you were the director of -- the policy

director for that? A I was the director of the medical side of Texas

Health Steps beginning in April of 2001.

ken@kenowen.com * www.kenowen.com 800.829.6936 * 512.472.0880

a34cb9f9-4092-4b01-a7ff-1635cabdc746

Page 44
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

Q A

Okay.

Continue on.

In the course of that, I oversaw the policy

development for medical policy for the preventive medical services for Texas Health Steps recipients, which are poor and underserved children who are eligible for Medicaid, birth through age 20, in the State of Texas. And provided

guidance to staff, professional staff within Texas Health Steps Medical with regards to medical policy for the children for their preventive health care visits. And also provided additional policy, direction for the Medical Transportation Program, as well. Q And what about the dental services in question,

what kind of policy guidance did you provide? A Beginning in 2004, I stepped in as the interim

state dental director over the Texas Health Steps Dental Program, as well and took on the responsibilities of participating in the development of dental policy for the Texas Health Steps Dental Program. I have also served in

the capacity for the Health and Human Services Commission as the consultant for Medicaid dental policies for children, but also for the Children's Health Insurance Program dental policy. In my capacity with the Department of State Health Services where I'm currently employed, and have been since the transition from the Texas Department of

ken@kenowen.com * www.kenowen.com 800.829.6936 * 512.472.0880

a34cb9f9-4092-4b01-a7ff-1635cabdc746

Page 45
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

Health to the Department of State Health Services.

I have

also served in the capacity as a subject matter expert with regards to dental policy for the Children With Special Health Care Needs Program, as well as the Title V, Maternal and Child Health Program, and our public health -- primary health care program within our agency. Q program? A The majority of it, yes, is associated with the And is this mostly in the context of the Medicaid

Medicaid program, but is also is associated with low-income children who do not qualify for Medicaid or other Federal assistance other than the Title V, Maternal and Child Health Program. Q A And tell us, Medicaid is a state program, right? Medicaid is funded by State and Federal. It is a

partnership between the State and the Federal Government and is funded in that manner between the State and the Federal Government. Q As it relates to dental policy of the Texas

Medicaid program, tell us about that, what your role has been? A My role has been to serve as a consultant to the

Health and Human Services Commission as a dental subject matter expert with regards to Medicaid dental policy, not only in the development, but in the review and updating of

ken@kenowen.com * www.kenowen.com 800.829.6936 * 512.472.0880

a34cb9f9-4092-4b01-a7ff-1635cabdc746

Page 46
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

that policy.

Also as serving in that capacity, I was

asked by the Health and Human Services Commission to facilitate quarterly stakeholder meetings in which we had representatives from the Medicaid provider groups across the State come to Austin and meet with us on a quarterly basis. The meetings were held in January, April, July and October of the years starting in October 2004 in which we proactively sought their input with regards to changes that we were considering to take place within the Medicaid dental policy, to get a sense from those providers, what impact that would have for them, what they were seeing within their practices and within the patients that they were treating. But we also invited and had representatives from the three dental schools in the State of Texas because we wanted to know what was being taught academically within those institutions to not only the dental students, but also in the graduate programs with regards to dental services that these children would be accessing. Q A Q You've been a dentist before, right? Yes, I am currently a dentist, as well. And are you on the faculty of any dental schools

in Texas?

ken@kenowen.com * www.kenowen.com 800.829.6936 * 512.472.0880

a34cb9f9-4092-4b01-a7ff-1635cabdc746

Page 47
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

I am.

I am adjunct faculty in the Department of

Community Dentistry, it's now been changed to Comprehensive Dentistry at the University of Texas Health Science Center in San Antonio, their dental school. And

also an assistant clinical professor in pediatrics at the Baylor College of Dentistry in Dallas. Q And have you assisted the Department of Justice

in any Medicaid dental fraud cases? A I have. I have been and served as a fact witness

for the Department of Justice in a Medicaid fraud case that was -- the provider was from Brownwood, Texas and the case was heard in San Angelo. I have also been an invited

faculty to the Medicaid Integrity Institute, which is run by the Department of Justice, as well as the centers for Medicaid and Medicare services. Q A Q A What was that? The Medicaid Integrity Institute. The Medicaid Integrity Institute, what is that? It is a training program for Medicaid fraud

investigators and other individuals within State Medicaid programs that is run by the Department of Justice in collaboration with the centers for Medicare and Medicaid services. It is housed at the University of South

Carolina in Columbia, South Carolina. Q Okay. Let's transition here. Let's talk about

ken@kenowen.com * www.kenowen.com 800.829.6936 * 512.472.0880

a34cb9f9-4092-4b01-a7ff-1635cabdc746

Page 48
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

the Texas Medicaid Dental Program.

You have talked about

Medicaid, that it's a joint program between the Feds and the State. And there's a benefit provided for orthodontic

services, correct? A Q There is, yes. Now, before we get to that, let's talk about Is it a health insurance program or

Medicaid in general. is it entitlement? A

Medicaid is an entitlement program.

It is geared

to provide health care services to the poorest and most vulnerable individuals within a State. That -- and the

dental benefit in the State of Texas is limited to children. So it is children birth through 20 years of age

and for the most poor -- those poorest and most vulnerable of those children. Q Now, I know in private insurance there's a copay,

is there a copay with this entitlement Medicaid? A Medicaid does not for children. For the birth

through 20 years of age group does not allow for copayment to be made. I believe it is felt that would potentially

limit the access for these children because the families are juggling, they have very little financial resources. Q A They are poor? They are very poor. A family of four, income and So

assets, about $42,000 a year for a family of four.

ken@kenowen.com * www.kenowen.com 800.829.6936 * 512.472.0880

a34cb9f9-4092-4b01-a7ff-1635cabdc746

Page 49
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

that is not a lot of money, and for the most part, those individuals, those parents of those children are using those resources to provide shelter and food and clothing for their children. Q Now, going back to the copay. So Medicaid -- a

child on Medicaid, there is no financial skin in the game, so to speak? A They do not have any financial responsibilities

for the services that are covered and allowed under the Medicaid program. Q Who pays the provider? Is it a

reimbursement-type system? A It is. It is paid using Federal and State tax

dollars, and currently, in the State of Texas, as has been done for several years, the State has contracted with entities -- outside entities to provide that administration, that claims administering. So not only do

they go through the processes of the prior authorization for services, for any services that require that, but as a provider submitting claims, they are responsible for paying for those claims and maintaining the system that goes through to process the claims. Q We will talk about the providers obligations and What's the

duties and certifications in a minute here. total Medicaid budget in Texas right now?

ken@kenowen.com * www.kenowen.com 800.829.6936 * 512.472.0880

a34cb9f9-4092-4b01-a7ff-1635cabdc746

Page 50
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

For the 2012-2000 biennium, the expenditures and

budget as of January of this year was $40 billion. Q And how many Texas kids are enrolled in Medicaid

on average? A On the average for any given month of the year, However, as far as the

it's about 2.6 million children.

total unduplicated number of children per year that are enrolled and have at least a single day of eligibility and participation in the program, it's about 3.4 million children. Q And what's the -- about the average -- what

percentage of our child population in Texas is enrolled in Medicaid? A I'm given -- the numbers that I have seen most

recently, over half of the children in the State of Texas between the ages of birth and 18 to 19 years of age are at any given time on Medicaid in the State of Texas. Q A Q Over half? Over half. All right. So before we get to talk about how a

provider such as Dr. Nazari becomes a Medicaid provider, a contractor with the State, let's talk about just briefly the rules applicable to the Texas Medicaid program. Go

slow, but just briefly tell us what the applicable rules are to the Texas Medicaid program.

ken@kenowen.com * www.kenowen.com 800.829.6936 * 512.472.0880

a34cb9f9-4092-4b01-a7ff-1635cabdc746

Page 51
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

So, for example, you have the Texas Administrative Code? A Yes, which is based off the Federal regulations

associated with the early and periodic screening diagnosis and treatment program. So we have the Administrative Code

that sets out program rules within -- from there within policy development for the Texas Medicaid program. We

then take those rules within the Texas Administrative Code and develop policy to apply that. That policy is

published within the Texas Medicaid Provider Procedures Manual, and as any -- and that manual is published once a year. It's traditionally been published once a year. And during the course of time from -- up until recently within the past year, that's where the primary publishing was, on an annual basis. However,

every two months, there was a bulletin that would be issued, and that bulletin would contain any updates to the manual that had occurred in the interim time frame. As we would prepare the manual for the subsequent year, we would take everything that was published within the bulletins and we would incorporate them into the manual so that the manual in the subsequent year would contain all the updates. Q I was hoping to show you up on the screen, but I So for the Judges, tell the

can't find the right slide.

ken@kenowen.com * www.kenowen.com 800.829.6936 * 512.472.0880

a34cb9f9-4092-4b01-a7ff-1635cabdc746

Page 52
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

Judges what that is. A What Mr. Hargrove is holding there is the 2009

version of the Texas Medicaid Provider Procedures Manual. Q A What does it do as it relates to providers? It gives providers an overall guidance as to not

only what their responsibilities are to become a provider, but also in treating of patients, how to submit claims, how to submit prior authorizations, what services are benefits of the program, what limitations there are, whether those limitations are age or could be also who was qualifying for it, for the services that are being provided. So it really gives a guidance to the providers

as to what the program is encompassing. Q So you have the Texas Medicaid Provider

Procedures Manual, so for the rest of the day, I want to call it the manual. A Q All right. And in addition to the manual, do you have Tell us what those policies are.

policies, right? A

Policies are an overview of what the benefit is.

It is what the payment is going to be when the service has been provided. It will list in it, again, any

limitations, whether it's age limitations, maybe the tooth specifically that that particular service can be provided to or for. It has in there within the policy the

ken@kenowen.com * www.kenowen.com 800.829.6936 * 512.472.0880

a34cb9f9-4092-4b01-a7ff-1635cabdc746

Page 53
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

adjudication guidelines. It gives the claims administrator direction as to how -- when a claim comes in, how that is to be adjudicated. Especially if it has to be evaluated by an

individual, where it cannot go through the system, through the computerized-system within the edits and audits that are contained within that. Q So just quickly going to the manual you have, and

we are talking about the 2009 manual, which I have in front of me if you want to look at it. This is Section If you could

1.4.8, provider certification assignment.

tell us what this means as it relates to a provider's legal duty to the Medicaid program. A This is reinforcing to the providers -- and

again, this is in the first section of the manual, which applies to all providers within the Medicaid program. It

doesn't matter whether they are a dentist, physician or a pharmacy. Q But in essence, it's showing -Texas

Let's talk about the first part here:

Medicaid service providers are required to certify compliance with or agree to various provisions of State and Federal laws and regulations. A Q That is correct. Okay. After submitting a signed claim to TMHP, Right?

the provider certifies the following, what is the provider

ken@kenowen.com * www.kenowen.com 800.829.6936 * 512.472.0880

a34cb9f9-4092-4b01-a7ff-1635cabdc746

Page 54
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

certifying to? A That they have personally rendered the service by

the billing provider or by somebody under their personal supervision. Q A Got it. What is next?

The next is that the information that they are

submitting on the claim is true, it is accurate and it is complete. Q Okay. True accurate and complete. This is what

a provider certifies and it's in the manual? A That is what they are certifying, it's in the

manual, and when they submit a claim, they are recertifying at that point in time that the claim is true, accurate and complete. Q Okay. Then let's go to the next third bullet, we And what is

are going to go through this rather quickly. the purpose of this next bullet? quickly. A

Tell us what it means

That the services that they are rendering,

anything they are doing, is medically necessary in the treatment of that child. Q So if they are going to bill Medicaid, if they

are going to be a Medicaid provider, they are to provide medically necessary treatment to the child? A That is correct.

ken@kenowen.com * www.kenowen.com 800.829.6936 * 512.472.0880

a34cb9f9-4092-4b01-a7ff-1635cabdc746

Page 55
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

Let's talk about the next bullet here:

Medical

records document all services billed and the medical necessity of those services. A That is correct. What we are looking for within

the Medicaid program is that the records will reflect not only the services provided, but why were they provided; what made it medically necessary for that child to have that particular service provided to them. Q Okay. Let's switch gears. Let's get a little

bit down into the weeds. this is. A Q

Let's talk about -- tell us what

This is a dental provider enrollment application. And we have National Heritage Insurance Company,

Texas Medicaid, dated December 21, 2000, right? A Q Yes. And this is Respondent Exhibit R-01. All right, next page. here? A Q A So what do we have

Tell us, go big and then small. Okay. Yes. No. May I stand? Do you want the laser pointer? The dental provider, here is showing the

provider name as Dr. Nazari, it's giving his physical address, his tax I.D. number, and is coming down to the agreement and certifications that are encompassed within this application.

ken@kenowen.com * www.kenowen.com 800.829.6936 * 512.472.0880

a34cb9f9-4092-4b01-a7ff-1635cabdc746

Page 56
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

So what it is saying here is that for consideration of payment of authorized services, the provider is in agreement that they will -- that they are licensed and certified to provide the services; that if they fail to comply with the terms of the agreement, that there are some actions that the State can take with regards to it. It is telling them that they must be

familiar with what the Texas Medicaid Provider Procedures Manual says, as well as all the bi-monthly updates to the manual, and that they will be familiar with that; that they will comply with all the provisions of it and that all the information -Q fast. A regards. Let's slow down. You are going a little too

I know you are nervous. Okay. I'm sorry. They are complying with

Here, it goes back to all the information that

they are submitting on their claims is true, complete and accurate. And that it can be verified by reference to the

materials, the source materials, which would be their charts and the information that they are maintaining within their office associated with that claim. Q Okay. Next page. And then here we have provider Go down, all the way to the

agreement and certifications.

bottom of the page, and then we have Dr. Nazari's signature, correct?

ken@kenowen.com * www.kenowen.com 800.829.6936 * 512.472.0880

a34cb9f9-4092-4b01-a7ff-1635cabdc746

Page 57
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

A Q page.

That is correct. All right. Let's go to the next page. Thank you. Next

Okay, that's it.

This is required for a provider to become a Medicaid provider, right? A Q That is correct. So if a dentist wants to do business with the

State of Texas, tell us briefly about the application process. A Is this the final step? It is not the final step. Again, a provider --

it's not mandatory that a provider enroll, that a dentist enroll to be a Medicaid provider. They are voluntarily

requesting to become a provider when they submit this application. Within that, the application is submitted, if there is any missing information, then the claims administrator is going to request that that information be provided so that they can see the full -- the full application. It then -- the claims administrator then

verifies that they are currently licensed within the State of Texas to practice, and in this case, a dentist to practice dentistry. It then goes to the Office of Inspector General for a criminal background check. And then once

that has been completed, if it has and there is no

ken@kenowen.com * www.kenowen.com 800.829.6936 * 512.472.0880

a34cb9f9-4092-4b01-a7ff-1635cabdc746

Page 58
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

problems there, then at that point in time, they certify as a Medicaid provider. Q So they come to the State, they want to be a

Medicaid provider, and you have a 40-billion-dollar budget to work with, right? A Q Yes, sir. So let's shift gears now and let's talk about the

Medicaid Orthodontics Program, R-15-334. You testified earlier about the limitations of the benefits, right? A Q A Q Yes. There are limitations in the Medicaid program? Yes. As it relates to orthodontic services, what are

the limitations? A Well, our primary benefit, we are here to correct

a severe handicapping malocclusion Now, occlusion -- I think this really needs to be hit on, occlusion is how the teeth come together, how they touch, the upper teeth to the lower teeth. Malocclusion is that touching is not

appropriate or not accurate, so it's hitting differently than what the body, under ideal situations, would want the teeth to come together. So we have malocclusion.

Handicapping is that, at that point in time, this is preventing that child from being able to chew as

ken@kenowen.com * www.kenowen.com 800.829.6936 * 512.472.0880

a34cb9f9-4092-4b01-a7ff-1635cabdc746

Page 59
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

maybe their classmate sitting next to them.

So from a

handicapping aspect, would be that instead of being able to bite off their feet with their front teeth as is intended and then chew with their back teeth to finish chewing it up and breaking it down, they are limited as to how they can accomplish that. Severe comes into the fact that it is not just that maybe there's a couple of teeth out of alignment and, therefore, they are handicapped to some degree. is severe. This is people who, no matter how they This

manipulate their mouth, they cannot get teeth together in a manner in which most of us have the opportunity. So example, an open bite, the front teeth, no matter what they do, will never be able to come together to bite off that food that they are trying to bite into. So an apple, a hamburger, something of that

nature, they are going to have to cut that up and put it into the back of their mouth to be able to chew. So again, we are there to correct. The

benefit for comprehensive orthodontics is the correction of severe handicapping malocclusion. Q Okay. What is this handicapping labio-lingual

deviation index? A Handicapping labio-lingual deviation index, or

HLD index, has been used by Texas Medicaid to outline

ken@kenowen.com * www.kenowen.com 800.829.6936 * 512.472.0880

a34cb9f9-4092-4b01-a7ff-1635cabdc746

Page 60
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

several elements of the mouth, focusing only on the six upper and six lower front teeth. So from the canine or

the eye teeth or dog teeth, they are sometimes called, forward. Q A So it is your front teeth. And when you say -- not the back teeth? Not the back teeth. All the HLD scoring is

around only the 12 front teeth; six upper, six lower. Q A Okay. And then --

And it has to have a minimum of 26 points for But also -- and it is stated further back

consideration.

in the manual along with the definitions on how to score, it talks about not only do they have to have a minimum of 26 points, but their bite must be dysfunctional. Q So the mere fact that they have 26 points, is

that sufficient to -- for braces to be placed on a child? A Q A No. Why not? Because it has -- you can have where there are 26

points could be achieved, but that doesn't mean that that child is still not able to chew their food normally and be able to function from that perspective. Again, here,

after it gives all the elements of the definitions with how to score, we come down a little bit further. Q Go to the top, what section are we talking about?

We are talking about Section 19.21 of the 2009 manual,

ken@kenowen.com * www.kenowen.com 800.829.6936 * 512.472.0880

a34cb9f9-4092-4b01-a7ff-1635cabdc746

Page 61
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

says how to score the HLD index, correct? A Q That is correct. And the question on the table is: 26 points

alone, is that sufficient? A Q A Q A No. And your answer is? No, it is not. Where does it say that in the manual? Bring it up a little bit further. Right here.

The case must be considered -Q A Throughout this whole paragraph? Yes. We tell the providers in the manual that

they are to be conservative in their scoring. Q A So providers should be conservative in scoring? Uh-huh. That liberal scoring will not be helpful And we talk about

in evaluating an approval of the case.

and give them direction that the case must be considered dysfunctional and have a minimum of 26 points on the HLD score sheet to qualify for orthodontic care. Q A Q A Other than crossbite? Other than crossbite. What does this mean? Crossbite is typically the outer segment of the

teeth, the outer cusp of the teeth or surfaces on the upper are going to be on the outside part of the lower.

ken@kenowen.com * www.kenowen.com 800.829.6936 * 512.472.0880

a34cb9f9-4092-4b01-a7ff-1635cabdc746

Page 62
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

So this is the lower teeth, this is the upper teeth, so here is the outer surface, here is the outer surface, typically, that's how it relates. In a crossbite, it is opposite of that. let me go this way. here is the lower. of that. So

Here is normal, here is the upper, In a crossbite, it's just the opposite

So that, in essence, the teeth are not -- they

can still occlude, they can still come together and touch, but they are in a different relationship than what was originally intended. Q But as it relates to braces in this score, what

does that mean? A In this case, crossbite correction, if the child

only has a crossbite, then comprehensive orthodontics would not be means in which to treat that. And that's why

we have it -- that -- they don't have to have the 26 points to correct a crossbite. Q But that doesn't mean if they have a crossbite,

they get braces, right? A That is correct. Just because they have a

crossbite does not mean that they get comprehensive orthodontic care. Q They must still be dysfunctional and have 26

points, right? A That is correct.

ken@kenowen.com * www.kenowen.com 800.829.6936 * 512.472.0880

a34cb9f9-4092-4b01-a7ff-1635cabdc746

Page 63
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

MR. HARGROVE: is fine.

Let's pull up R-15-985.

This

Can you make it a little bit bigger? JUDGE EGAN: MR. HARGOVE: What number again? This is Section 19.211, and it This is, Judge, called an HLD

is Exhibit R-15, Page 342. score sheet. Q A Q (BY MR. HARGOVE)

Go big, then small.

This is the score sheet, because the -Hold on. Let's back up a little bit. What is happening here? Let's put

it in context. A

Patient comes to the Medicaid provider, they are

put back into the treatment room, they are seen by the dentist. With that, they are going in and they are

examining the child's mouth. Q A Q A To see if they qualify? To see whether or not they qualify. For braces, right? Right. And whatever care they may need. So in

this case, they are going through and if they have a cleft palate -- meaning, that as the mouth formed, it didn't come and join together completely, then they automatically get 15 points. And actually in a cleft palate case, they

would qualify for orthodontics. Q Let's break this down a little bit. Slow down a

little bit and let's talk about what this HLD score sheet

ken@kenowen.com * www.kenowen.com 800.829.6936 * 512.472.0880

a34cb9f9-4092-4b01-a7ff-1635cabdc746

Page 64
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

shows. Conditions observed, which is here, right? A Q Yes. And over here on this column, you have the HLD

score column where the dentist places the points? A Q Places the points that they see. Okay. The child, when he's in the chair, the

dentist observes -- and a dentist has to do this, right? A Q A Yes. A dental assistant could not do this, right? This is diagnosing, and under the Dental Practice

Act, an assistant would not be qualified to do this. Q So if a child has a cleft palate, they get 15

points, and that is an extremely rare event, right? A Q That is correct. And if the child has a severe traumatic

deviation, then the child would get 15 points? A Q That is correct. And the bottom line is, we are going to total up

the points, right? A We are going to get it down and see what the

points are for each of these elements and give a total at the bottom. Q And the minimum is -- to qualify if you are

dysfunctional is 26 points?

ken@kenowen.com * www.kenowen.com 800.829.6936 * 512.472.0880

a34cb9f9-4092-4b01-a7ff-1635cabdc746

Page 65
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

A Q

The minimum is 26 points. So here, these two events, we don't have that

here, so overjet, overbite, mandibular protrusion, open bite in millimeters, ectopic -THE REPORTER: MR. HARGROVE: A Hold on. Sorry.

So an overjet, that is where the upper front In essence,

teeth are over the lower front teeth.

typically, there's about a two-millimeter gap between the upper front teeth and the lower front teeth. overjet, that is accentuated. In an

That's why on the score

sheet it shows that whatever that measurement is, you take away two millimeters or two points. So if the figure --

and it gives an example here -- that was eight millimeters is what was actually measured, you take two millimeters away from it and the score then is six points, and that is what would be entered over in the column under HLD score. Q A What about overbite? Overbite is, again, typically when the front

teeth -- the upper and the lower, again, there is an overlap between the incisal or the edges of the teeth, that is usually at three millimeters. you measure to see where that is. So you go in and

And in some people,

it's so much that the lower front teeth are actually biting into the roof of the mouth, so that is pretty

ken@kenowen.com * www.kenowen.com 800.829.6936 * 512.472.0880

a34cb9f9-4092-4b01-a7ff-1635cabdc746

Page 66
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

severe. And so you measure that and you subtract three millimeters, you end up with your total points. Again, in this example, five minus three, they have two, and two would be entered over in the HLD score column. Q A Okay. Mandibular protrusion, that is where, again,

typically your lower, which is the mandible, is behind the maxilla, which is the upper. protrusion, it is reverse. So in a mandibular Kind of like a bulldog, where

the mandible, the lower, is in front of -- and the teeth associated with it, are in front of the upper front teeth. Q A Okay. And then open bite.

Open bite is where, again, the incisal edges or So that can be

the edges of the front teeth don't touch.

due to a number of reasons, but again, it is that when they are biting down, there is a gap, a visible gap between the edge of the upper front teeth and the edge of the lower front teeth. Q A Q A And then what about this? Ectopic eruptions, anteriors only. What does that mean? It means it's only the front teeth. Again, from

canine to canine, upper and lower, that's the only place you can score ectopic eruptions.

ken@kenowen.com * www.kenowen.com 800.829.6936 * 512.472.0880

a34cb9f9-4092-4b01-a7ff-1635cabdc746

Page 67
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

And so if there's a tooth that is ectopically

erupted, the dentist scores it three points, right? A Three points for each of the teeth that are truly

ectopically erupted. Q A Q And there are 12 teeth from which to choose? That's correct. You cannot use the back teeth or posterior teeth

to score? A For this purpose, the back teeth do not play into So even if there was a back tooth that

ectopic eruption.

was out of position, it would not be able to be counted on this score sheet. Q A All right. And then what else do we have? And with the crowding, one of

Anterior crowding.

the things which it says in the manual is that they cannot score an ectopic eruption and crowding on the same patient. both. So this, again, is crowding a maximum of five points, ten points -- I'm sorry -- maximum of ten points; five points for the upper and five points for the lower. Q spread. A That is when there is active spacing between the And the next thing, we have the labio-lingual So they score either one or the other, but not

ken@kenowen.com * www.kenowen.com 800.829.6936 * 512.472.0880

a34cb9f9-4092-4b01-a7ff-1635cabdc746

Page 68
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

front teeth.

Instead of them coming side-by-side, there

is actually a gap between the teeth. Q Okay. And then dentist tallies that all up and

scores it? A Yes. And they are also under the diagnosis -- it

says in the manual that they are to give the angle classification, which is a recognized classification in dentistry as to the relationship between the upper teeth and the lower teeth and they are to give -- document that diagnosis within this score sheet, as well. Q Okay. So dentist scores all this, he has the

child in the chair, and then let's say he makes a determination that he's going to -- that the child, there is a medical indication for braces. do to get reimbursed? A They have to finish completing this, they sign They also submit with What does the dentist

it, give their information there. this -Q program? A Q A Yes. Okay. Let's go to this.

So this is part of the

So this is the HLD score sheet? Yes. They have to submit documentation, as well,

to support this. Q So let's pull that up. So the HLD score sheet is

ken@kenowen.com * www.kenowen.com 800.829.6936 * 512.472.0880

a34cb9f9-4092-4b01-a7ff-1635cabdc746

Page 69
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

one stick in the bundle, right? A Q One piece of it. Before we get into it, tell us in your own words,

what is mandatory prior authorization? A That is for the services that have been

identified within the manual, and they are stipulated within the manual, that they have to -- the provider has to ask -- has to submit information and request, number one, is this a benefit under the program or not, and if it is, then it gives them the authority -- it goes in and shows them, in essence, it is a benefit, but it is not -just because you have a prior authorization that's been approved, it is not a guarantee of payment. Q Okay. Let's break this down a little bit. So

prior authorization is required for all TH Steps orthodontic services except for Procedure Code 8660. is that code? A The D-8660 is the initial examination, so because What

-- can't get a prior authorization for that initial exam for orthodontic work-up, that is what the D-8660 code is for. Q A Okay. So for braces, the code is what?

For comprehensive orthodontics of the adolescent

dentition, it is D-8080. Q Okay. So this is the instruction in the manual

ken@kenowen.com * www.kenowen.com 800.829.6936 * 512.472.0880

a34cb9f9-4092-4b01-a7ff-1635cabdc746

Page 70
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

telling the dentist -A How they go through to get prior authorization.

And mandatory -- it's not only orthodontics, but there are other dental services within the Medicaid dental program that require prior authorization. Q A Will you go to 335 and 336? Okay.

As I mentioned earlier, prior authorization is a It is indicating that the

condition for reimbursement.

services that were submitted are a benefit of the Medicaid program; however, it is not a guarantee of payment. Q Okay. Now go to 335 again. Let's go through the But the

items, you don't have to go into great details.

items that the dentist must provide when seeking prior authorization to place braces on a Medicaid beneficiary. It's up here on the screen. A Q A They must provide the HLD score sheet. Let's go through the -Okay. There is a treatment plan. That treatment

plan, in essence, says, this is what I'm going to do to correct the severe handicapping malocclusion. So it is --

would include any extractions of any teeth that are going to need to be removed, it would include whether that child is going to have surgery to also complete the idealization of the bite for them. It's going to include their -- the

fact that they are going to band the upper and lower

ken@kenowen.com * www.kenowen.com 800.829.6936 * 512.472.0880

a34cb9f9-4092-4b01-a7ff-1635cabdc746

Page 71
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

teeth, the monthly visits that it's going to take to complete this treatment. retainer. It's going to also include the

So everything that they feel that is going to

necessary to treat this child to completion for their orthodontics is going to be included in that treatment plan. Q Let's talk about this. The treatment plan should

incorporate only the minimal number of appliances required to properly treat the case. A It is a limitation. Is this another limitation? And again, the purpose for

this is along the lines that benefits are there to cover the expenses. Now, if somebody went in and did an exotic

treatment over and above what was really needed to get to the basics there of fixing the bite, then we are expending dollars unnecessarily. So this is why it's the minimum

number of appliances necessary to properly treat. Q Now, talking about the items that must be What is

included or the orthodontics treatment plan. next? A

The cephalometric radiographic with the tracing.

And this is a side view of the face showing the soft tissues, as well as the teeth. Q A And then? And then it's going to be the HLD score sheet

that's been completed and has all of the information true

ken@kenowen.com * www.kenowen.com 800.829.6936 * 512.472.0880

a34cb9f9-4092-4b01-a7ff-1635cabdc746

Page 72
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

and accurately reflected. Facial photographs, so it's going to be of the child's face. this morning. panoramic. films. We have already seen an example of that

Full series of x-rays, radiographs or a

So full series of x-rays is typically 16 to 18

Panoramic is on a single film and it goes from one

side of the head to the other, so that has to be there, and they have to be of diagnostic quality. We have to be

able to see what it is that is being presented there. Q This is part of -- and then there's one more

thing right here, right? A Any additional information that may play in or

needs to be taken into consideration with regards to the treatment. Q Is this where a dentist might provide a narrative

to further describe -A They would provide -MR. CANALES: for itself. Leading. The document speaks

Now he's suggesting to the witness what it

might provide, we object. Q (BY MR. HARGROVE) When, if ever, is a provider

required to provide a narrative? A At this point in time, if the score was 24

points, but because of something within the child's mouth; say, they have some severe discrepancies with the back

ken@kenowen.com * www.kenowen.com 800.829.6936 * 512.472.0880

a34cb9f9-4092-4b01-a7ff-1635cabdc746

Page 73
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

teeth, that would play in and give an opportunity within the narrative to explain that and to explain why that child's mouth is dysfunctional, and why they need orthodontic services. Q Okay. And let's go to R-15-985, the mandatory Just the top part, go

prior authorization request form. slow.

This is part of the 2009 manual, B.70, prior Tell the Judges what this is.

authorization request form. A

This is where they are, in essence, putting down This is going to give us the

their treatment plan.

information about the patients, including their Medicaid number and their gender. It is going to tell us and

certify to us what information is being provided and submitted with the request. Q So what does the provider have to submit?

Models, what are models? A Models are the casts. They take impressions of

child's mouth, they pour plaster into it and that forms a model. Now, in 2009, models were not required with every

case, but if a case was -- if models were being submitted, this is an opportunity to document that. They also would submit the HLD score sheet, the panoramic x-ray, if they were putting in additional documentation, the narrative, then they would have that marked. The cephalometric x-ray -- if they submitted a

ken@kenowen.com * www.kenowen.com 800.829.6936 * 512.472.0880

a34cb9f9-4092-4b01-a7ff-1635cabdc746

Page 74
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

full mouth series of x-rays in addition to the Panorex or instead of, they can mark that. The photographs and

anything else that they were putting there. Now, the other piece on this is they are marking that this is an orthodontic case, and they are certifying right here, when they check that, that all of the baby teeth, all of the primary and baby teeth have been lost. Q And that is for this code right here. Highlight

this part right here. So provider wants to put braces on a child, what is the purpose of this additional item right here? A D-8080, by definition of the American Dental

Association in their current dental terminology book is that this is -- D-8080 is comprehensive orthodontic services of the adolescent dentition. In essence, they have lost all of their baby teeth, but their mouth has not gone to full development at that point in time. So D-8080 is that comprehensive

treatment where the upper teeth have braces on them, the lower teeth have braces on them and they are fixing the bite. Q So the code, what are these codes? I mean, we

are going to see a lot of them, so tell us what they are. A These codes, again, have been established by the

ken@kenowen.com * www.kenowen.com 800.829.6936 * 512.472.0880

a34cb9f9-4092-4b01-a7ff-1635cabdc746

Page 75
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

American Dental Association; there is a rigorous process in which that occurs, where there are representatives from multiple dental specialties that come together, as well as with insurance company representatives, the insurance industry, and they discuss the codes and they come up with a set of common terminology that would be used when submitting claims to, for insurance purposes, at which Medicaid is a form of insurance. So D-8080 happens to fall within orthodontics, and as I said, under definition of it through the American Dental Association, that is comprehensive orthodontic treatment of the adolescent dentition. Q A Q So we are going to see that code a lot? Yes. Go back to just the top part. So again, we are

talking about mandatory -A Q Mandatory prior authorization. And I don't know what the exhibit is right now,

but these are the models that orthodontists are taught to do. This is a trimmed model. The pink here is a wax bite

showing the relationship, so they have those models to be able to show and document, a medical/legal documentation of how that child presented in their office before they did any treatment.

ken@kenowen.com * www.kenowen.com 800.829.6936 * 512.472.0880

a34cb9f9-4092-4b01-a7ff-1635cabdc746

Page 76
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

JUDGE EGAN:

Just for the record, what you

are holding up is a plaster cast of the upper and lower teeth, and a pink -THE WITNESS: JUDGE EGAN: THE WITNESS: models, yes. MR. HARGOVE: Your Honor, we just pulled a Pink wax bite. In between the two teeth? In between the upper and lower

random one; it is Petitioner's P-58, Exhibit -- it's the patient. Q (BY MR. HARGOVE) So earlier we talked about the

Steps prior authorization, the provider has to provide true, accurate and correct information? A Q Yes. So this is all the information that the dentist

then packages up and sends off for what? A They send it off to the claims administrator for

review and determination as to whether or not the benefits that they are requesting are benefits for that child in the Medicaid program, and if it is deemed they are, then a letter goes to the provider, as well as to the patient saying that the services have been approved. If they have

been denied, same type of correspondence goes out, as well. Q If some of these documents were not correct, they

ken@kenowen.com * www.kenowen.com 800.829.6936 * 512.472.0880

a34cb9f9-4092-4b01-a7ff-1635cabdc746

Page 77
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

are not true, would that be a program violation? A Any inaccurate information, incorrect information

submitted on an HLD score sheet or prior authorization request from would be a program violation, because it's not true, correct, or accurate or complete. Q Okay. So let's go to -- let's switch gears. Just walk us through the steps.

Let's go to R-15-24.

Provider, dentist, gets all this stuff, sends it off, and gets the authorization to place braces on a child. then what happens? child? A Child comes in, braces are placed, and then they In essence, the brackets And

I mean, the braces are placed on a

have a monthly treatment visit.

that are on the teeth, there's a wire that connects those brackets, and by changing up the way that wire is -- the size of it, as well as any bends that they put in it will help to manipulate and move the teeth in the mouth. Q Let's say a child was treated and Medicaid paid What I have here is R-15,

for the services, the dentist.

Page 24, if you highlight Section 1.4.3, the whole thing. This is from the manual? A Q Yes. Now, it says 1.4.3, retention of records and Let me ask you a general

access to records and premises. question first:

Does a Texas dentist who is doing

ken@kenowen.com * www.kenowen.com 800.829.6936 * 512.472.0880

a34cb9f9-4092-4b01-a7ff-1635cabdc746

Page 78
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

Medicaid work have to maintain certain records? A Q Yes. And what does this paragraph tell the dentist,

they are on notice, what records they have to maintain? A This is what this contains within it, as well as

who can -- further down, who has access to those records on that premises. Q Let's break it down. So we understand exactly

what a dentist, a Medicaid contractor dentist, must maintain. So the dentist must maintain and retain all

necessary documentation, records, R&S reports and claims to fully document the services and supplies provided and delivered to a client with the Texas Medicaid coverage. What's the next part? A They also must maintain the medical necessity for

those services, so documentation of the medical necessity to include any costs associated with that. Q A Okay. And then what about here?

They are also to maintain records and documents

necessary to determine whether or not the payment for those services that were due was properly made and that full disclosure was made to the HHSC. Q Okay. So the Medicaid program, let's go through The Medicaid program requires

this list now and identify.

a dentist to maintain all of these records that are listed

ken@kenowen.com * www.kenowen.com 800.829.6936 * 512.472.0880

a34cb9f9-4092-4b01-a7ff-1635cabdc746

Page 79
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

here, right? A Q That is correct. And if a dentist failed to maintain the records

that are listed here, that would be a program violation? A Q Yes. So let's talk about this. The documentation that

a dentist must maintain for how long, by the way? A Q A They must maintain it a minimum of five years. All right. Without limitations, their clinical records, the

patient records and any other records that are pertaining to it. So if they requested to have lab work done, and in

a dental office they sent out to have an appliance made, then there should be in the record a copy of the order requesting that prescription for that. They should also have a listing of all the services that were provided -Q A Let's go bullet by bullet, so we don't -Okay. So any other records of services, items,

equipment, again, that could be the lab request for fabrication of an appliance, any diagnostic tests, documents related to the diagnosis, anything that they used in their professional judgment to make that diagnosis. So in this case, it would be the models, it

would be the --

ken@kenowen.com * www.kenowen.com 800.829.6936 * 512.472.0880

a34cb9f9-4092-4b01-a7ff-1635cabdc746

Page 80
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

Q A

So they have to maintain the models? Yes, they have to maintain the x-rays, any and

all x-rays that were taken. Q sheet? A Yes, because that was part of the documentation What about do they have to maintain the HLD score

pertaining to that patient of what they were requesting. Q A And would that be documents related to diagnosis? Yes, it would be also any other requests for

services that they have requested. Q here. A And then so what other -- I think we left off What other documents? It is the charting, what they have within their And as they The billing

records to identify how that child presented. are going along, any changes that occurred.

records, what did they bill and how did they bill it. Invoices for, again, any services or additional information that they requested, any treatments. Again, that's part of what did they do for that child, any treatment, anything outside, did they -maybe they had to have teeth removed and so they sent them to a general dentist or an oral surgeon for that, that would be part of it, as well. Again, any services that were provided, any laboratory results, x-rays, documentation of delivery. So

ken@kenowen.com * www.kenowen.com 800.829.6936 * 512.472.0880

a34cb9f9-4092-4b01-a7ff-1635cabdc746

Page 81
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

again, within the patient's records, if they go in to put on the upper braces, then the records need to show that that's what they did on that date. If they provided a

retainer, then it shows when that retainer was delivered to the patient and any follow-up that may have been done after that. Q right? A Q Yes, it's a program requirement. And if the Medicaid dentist fails to maintain Okay. So they have to maintain these items,

those requirements, it would be what? A A program violation, because it is a program

requirement that they maintain it. MR. HARGOVE: -- it's 11 o'clock. Judge, we have been going for

Can we have maybe a 15-minute recess? Go ahead and take a recess. We

JUDGE EGAN: will be back at 11:15.

(Off the record.) JUDGE EGAN: 11:25 a.m. We are back on the record. It's

Mr. Hargrove, you may proceed. MR. HARGOVE: Thank you, Judge. You need a

gavel. JUDGE EGAN: use it inappropriately. Q (BY MR. HARGOVE) I think they are afraid I may Go ahead. All right. Up here we have

ken@kenowen.com * www.kenowen.com 800.829.6936 * 512.472.0880

a34cb9f9-4092-4b01-a7ff-1635cabdc746

Page 82
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

Section 1.4.3, the records retention rules, it would be a program violation if a provider fails to maintain the items listed here. I just want to go back and quickly touch about the molds. Molds aren't always required to be

submitted for prior authorization; is that correct? A That is correct. In late 2004, the policy was

changed prior to that, the models were a requirement for the prior authorization process, but the were -- the policy was changed at that point in time. So the models,

though they weren't -- didn't have to be submitted with the initial prior authorization request, they did have to be maintained within the provider's offices for access because they were requesting to request from the Texas Medicaid and Healthcare Partnership dental director. JUDGE EGAN: models made? THE WITNESS: Models have traditionally been In all orthodontic work, are

made as far as for orthodontics, both pre-treatment, possibly mid-treatment, and post-treatment. There's now

the capacity to do it as e-modeling, but they are still available. So there is some representation of child's

mouth pre- and post-treatment that is maintained. JUDGE SEITZMAN: they weren't required. I'm a little confused. So

So the retention was if they were

ken@kenowen.com * www.kenowen.com 800.829.6936 * 512.472.0880

a34cb9f9-4092-4b01-a7ff-1635cabdc746

Page 83
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

made, then you had to maintain them, but there wasn't a requirement to make them -THE WITNESS: I'm sorry, Judge. It wasn't a

requirement to submit them with the prior authorization request. But from a medical/legal standpoint, from my

understanding, you do the pre-treatment records, including the models. In the event that there is a legal action at

a later time, where the patient says you made me worse than what I started off with, you would be able to have those models to show -- and other records to show, here is what you presented with. JUDGE SEITZMAN: I guess my question is:

Was it required to be made or was it -- well, you could do it as a CYA, if guess if you wanted to. is: But my question

Was there a requirement that it be made or simply a

requirement that if it was made, it had to be retained? THE WITNESS: Within the Medicaid program,

it was that whatever was needed to diagnosis and treat, needed to be done, and therefore, be maintained. I would

have to defer to probably Dr. Tadlock to give you more of a requirement from a professional standpoint, whether that's a requirement. But within Texas Medicaid, it was

that they -- the models did not have to be submitted, it was inferred that they still had to have the models available.

ken@kenowen.com * www.kenowen.com 800.829.6936 * 512.472.0880

a34cb9f9-4092-4b01-a7ff-1635cabdc746

Page 84
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

JUDGE SEITZMAN: Q (BY MR. HARGOVE)

Okay.

So in -- to sum up, if a

dentist fails to maintain these records, that could be a program violation? A Q Yes. And if they -- the mere submission of false

information as part of the prior authorization, can that be the basis -- can that be a program violation? A Q It would definitely be a program violation. Would it be fair to say that the Medicaid system

is based upon an honesty-based system? A The Medicaid system really requires that level of

honesty and true submission because of the fact that there are so many children who are being provided with services. The State doesn't have the manpower and resources to go in and double-check everything that's being submitted. it is just not for the children, everything within Medicaid falls under that requirement. MR. HARGOVE: Judges. MR. CANALES: Your Honor, I have provided Okay. Pass the witness, And

opposing counsel exhibits -- these are all the Medicaid bulletins. I believe. I have provided a copy to the court reporter, I'm going to be offering them. These are all

as a result of her testimony today.

ken@kenowen.com * www.kenowen.com 800.829.6936 * 512.472.0880

a34cb9f9-4092-4b01-a7ff-1635cabdc746

Page 85
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

JUDGE EGAN: 78? MR. CANALES: them. JUDGE EGAN: Texas Medicaid bulletins? MR. CANALES: JUDGE EGAN: objections? MR. HARGOVE: JUDGE EGAN: through 81 are admitted. Go ahead.

This is Petitioner's Exhibit

78 through 81.

I labeled

All right.

And they are the

Yes, Your Honor. Is there going to be any

No objection, Judge. All right. Petitioner's 78

(Petitioner's Exhibit Numbers 78 through 81 admitted.) CROSS-EXAMINATION BY MR. CANALES: Q today? A I do not work for the Health and Human Services Dr. Altenhoff, do you or do you not work for HHSC

Commission today. Q A When did you quit working for the HHSC? I have never been employed by the Health and

Human Services Commission. Q Are you employed today by OIG?

ken@kenowen.com * www.kenowen.com 800.829.6936 * 512.472.0880

a34cb9f9-4092-4b01-a7ff-1635cabdc746

Page 86
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

A Q

No, sir, I am not. And is the Office of Inspector General a part of

the HHSC? A Q A Q That is correct, and I'm not employed by them. Have you ever been employed by them? No, sir, I have not. And just for the record, your agency that you

work for right now is an agency of the State of Texas? A Q A Q It is. And what is the name of that agency? Texas Department of State Health Services. Is that department any way, shape or form

associated with a company called TMHP? A The department itself, the Department of State

Health Services does have contractual relationships with the Texas Medicaid and Healthcare Partnership. Q A What is that? It is a fiscal agent, a claims administrator for

the Texas Medicaid program and other State health care programs. Q In your duties as an employee of your agency, did

you have any role at all to play in the review of the -of the creation of this particular manual we are talking about? A Yes, I did.

ken@kenowen.com * www.kenowen.com 800.829.6936 * 512.472.0880

a34cb9f9-4092-4b01-a7ff-1635cabdc746

Page 87
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

Q agency? A

And you did that as a representative of what

I did that as a representative of the Department

of State Health Services and a consultant to the Health and Human Services Commission. Q And when you were a consultant to the Health and

Human Services Commission, were you assigned at all to work with dentists who were having any type of difficulty with the Medicaid program? A Q That was not part of my assignment, no, sir. And in that regard, can you tell us for sure

whether or not your last active practice in the field of dentistry was some time prior to 1994; is that correct? A 1994. Q So since 1994, have you been a -- have you I sold my personal dental practice in April of

consulted or seen private patients? A Q No, sir. And I take it then, have you consulted or treated

Medicaid patients? A Q I have consulted with Medicaid patients. Have you had any opportunity to consult or work

with the filing of the so-called HLD index? A Q I'm not sure what you are asking. Well, I asked you in your deposition -- let me

ken@kenowen.com * www.kenowen.com 800.829.6936 * 512.472.0880

a34cb9f9-4092-4b01-a7ff-1635cabdc746

Page 88
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

back up. Have you done any type of orthodontic work at any point in time? A Q No, sir, I am not an orthodontist. So the question is: You have not done any type

of orthodontic treatment of patients; is that correct? A Q That is correct. And in that regard, you have not filed any type

of Medicaid claim on behalf of any patient seeking orthodontic services? A I have not personally filed a Medicaid claim for

orthodontic services for a Medicaid client. Q A Q Now, do you know Dr. Felkner? Yes, I do know a Dr. Felkner. And have you ever worked with Dr. Felkner in the

formulation of rules or policies for TMHP? A policy. Q How about policies regarding the prior I have worked with Dr. Felkner on Medicaid dental

authorizations, have you worked with him on that field? A In the course of development of Medicaid policy,

prior authorization requirements were a part of the discussion. Q And what about, did you ever discuss with Dr.

Felkner the 2008 audit that was being conducted by the OIG

ken@kenowen.com * www.kenowen.com 800.829.6936 * 512.472.0880

a34cb9f9-4092-4b01-a7ff-1635cabdc746

Page 89
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

on TMHP on the issue of prior authorization? A Q A Q No, I have not. Did you ever get to see that audit? I have. Will you agree with me that the definition of

ectopic eruption, at least for the years 2008 through 2011, did not change? A Q I would agree with that. If I show you -- let's look at P-65. There's a

-- what I want to know is whether or not this definition he had awhile ago of ectopic eruption -- Can you go to this particular definition? Can you tell us whether or not this definition here was a constant and consistent definition of ectopic eruption from at least ending in the year 2011? A Q A Beginning when, sir? Well, how about 2007. I would -- yes, I believe that is a consistent

definition within the Medicaid manual. Q A Q A Do you know how long that definition was there? In this form? Yes. I could not tell you exactly what year this form I do know that there was a change in the

showed up.

definition as printed in the manual beginning in 1996.

ken@kenowen.com * www.kenowen.com 800.829.6936 * 512.472.0880

a34cb9f9-4092-4b01-a7ff-1635cabdc746

Page 90
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

Q A Q

Do you know a Dr. Jim Orr? Yes, I do. Do you know what his title was or whether or not

he was ever employed with NHIC? A He was employed with the National Heritage

Insurance Company and he, my understanding, was employed as their dental director. Q Did you ever have any course of conduct in

dealings with Dr. Orr regarding this particular definition? A Q Not with this particular definition, no, sir. And this definition changed, right? JUDGE EGAN: MR. CANALES: changed. Q (BY MR. CANALES) Will you agree with me that When? I was about to ask her when it It changed.

this particular definition changed, I believe, if you look now at -- I believe 70. JUDGE EGAN: MR. CANALES: JUDGE EGAN: Petitioner's Exhibit 69? MR. CANALES: Q (BY MR. CANALES) Yes. I will confess to you, Doctor, Petitioner's Exhibit 70? Yes, ma'am. What is it again?

Are we referring to

that sometimes these manuals have a year up on top, but

ken@kenowen.com * www.kenowen.com 800.829.6936 * 512.472.0880

a34cb9f9-4092-4b01-a7ff-1635cabdc746

Page 91
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

the copyright on the bottom is the year before, correct? A Q A That's not an accurate statement. Tell me what is wrong with it. In some years, the manual wasn't printed until So as far as

late in the year of which they are dated.

the copyright goes, it depends on the manual itself and which edition as to whether that's an accurate statement or not. Q So let's look at P-68. I believe we now have a I want to talk

different definition of ectopic eruption. to you about that. MR. CANALES: Q (BY MR. CANALES) I'm sorry, Judge. Look at P-70.

And I want to

ask you about this publication and see what role you had in this publication. JUDGE EGAN: deposition. MR. CANALES: evidence, Your Honor. Q (BY MR. CANALES) Now, you talked about the Yes, but it's already in Exhibit 70 is Mr. Milwee's

manual, correct? A Q Yes, sir. And I think you also spoke about this so-called

bulletins, right? A Yes, sir.

ken@kenowen.com * www.kenowen.com 800.829.6936 * 512.472.0880

a34cb9f9-4092-4b01-a7ff-1635cabdc746

Page 92
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

What do you call this?

Is this kind of a news

flash or something like that, that comes out? A Q A I have no idea what this is. It says at the very top, see that? It says, Intouch News from the Texas Health and

Human Services Commission. Q before? A Q No, sir. Do you know whether or not this is used as a Yes. Have you seen this type of publication

quick news release to the providers? A I do not know. You would have to ask someone

from HHSC. Q Very well. Let's see if -- the date of this It

particular exhibit, by the way, is at the very top. says, September/October 2011; do you see that? A Q Yes, sir.

Does this refresh your memory as to when things

began to change with regard to the definition of ectopic eruption at HHSC? A I do not see that this reflects any clarification

or change of the definition. Q Sometimes things are called clarifications,

sometimes they are called updates and sometimes things are called changes; do you agree with that?

ken@kenowen.com * www.kenowen.com 800.829.6936 * 512.472.0880

a34cb9f9-4092-4b01-a7ff-1635cabdc746

Page 93
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

A Q

Yes, sir. The new definition that came out regarding

ectopic eruption some time in this time period, would you classify that as a change? A Q I would classify that as a clarification. And if the bulletin describes it as a change, you

would disagree with the bulletin? A If that's how they described it, then I would

have to disagree with it. Q Let's look at that bulletin. I believe the I believe it will

bulletin -- I want to hand it to you. be P-81. Here is P-81.

Are you familiar with P-81, at

least with the format for the Texas Medicaid bulletin? A Q I am familiar with this format, yes. If you go to Page 3, at the bottom on Page 3, you

will see on Page 3 different terminologies that says clarifications, corrections, updates; do you see that? A I see where it says updates and correction and

clarification, yes, sir. Q A Q And now, if we go over to the page at -- Page 45. Which page? I'm sorry. Does that

Keep on going, it will be Page 45.

purport to say clarification or does it purport to say changes? A It says, changes to orthodontic prior

ken@kenowen.com * www.kenowen.com 800.829.6936 * 512.472.0880

a34cb9f9-4092-4b01-a7ff-1635cabdc746

Page 94
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

authorization that started January 1, 2012. Q A Q Yes. And do you know what changes those were?

It is elicited here. And the change -- did it change the comprehensive

orthodontic services and so forth? A Q A Q A On page -- which page, sir? The following page, it says, changes. Page 46? Yes. At the top of the page, it says, TH Steps

orthodontic dental benefit has changed. Q The point I'm trying to make with you is that if

you say clarification, that means one thing; if the document here says changed, you disagree with the Medicaid bulletin? A I would -- it depends on what specific item you There have been some changes and this

are talking about.

documents some changes, but it could also be contained in here, clarifications. Q Well, I submit to you that if we talk about the

definition of ectopic eruption, you say that is a clarification or a change? A Q Clarification. Now, you have spoken about some -- for example,

the HLD score sheet on the certification, I think you

ken@kenowen.com * www.kenowen.com 800.829.6936 * 512.472.0880

a34cb9f9-4092-4b01-a7ff-1635cabdc746

Page 95
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

talked about that one.

Counsel showed you an HLD score

where they had to certify; remember that one? A Q Yes, sir. And do you know whether or not that was also the

subject of a bulletin? A Q I do not know. Well, let's look at Exhibit Number 79. It is

going to be coming up for you in a second. In Exhibit 79, can you tell us whether or not Exhibit 79 has a date? Go up to the second page. Can

you tell us whether or not the form that you were discussing earlier regarding this so-called certification came into being effective September 1, 2008? A I would not be able to truthfully answer one way

or the other. Q And if we go to the next page, that's the Would you agree or

certification they are adding.

disagree with me, that's the certification they are talking about effective September 1, 2008? A please. I would need to see the other piece again, Mr. Canales, what I'm seeing here is it's talking

about a revised prior authorization form and that this revised form would be the only one that will be accepted as of September 1, 2008. Q Right. And that revised form is the next page,

ken@kenowen.com * www.kenowen.com 800.829.6936 * 512.472.0880

a34cb9f9-4092-4b01-a7ff-1635cabdc746

Page 96
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

correct? A Since it's in this bulletin and referenced, then

yes, this would be the revised form. Q So the point I'm trying to obtain from you is

whether or not a little while ago when you testified, that this so-called certification, you gave the impression that it has been there all the time and that's not correct, that's the wrong impression to leave; do you agree? A Q No, I don't agree. Well, the bulletin says it became effective

September 1, 2008, that's when they added this. A I don't know that that's when they added it, it

may have been in the form that was used prior to September 1, 2008. Q In that regard, are you telling us that if I look

at any form prior to 2008, I will be able to find the same certification, or maybe it's not there? A I'm not sure. You would have to look at the

forms used prior to that time. Q And the reason you are not sure about it is

because you did not have a hands-on managerial or consultant work regarding the prior authorization process; is that correct? A process. I did not participate in the prior authorization

ken@kenowen.com * www.kenowen.com 800.829.6936 * 512.472.0880

a34cb9f9-4092-4b01-a7ff-1635cabdc746

Page 97
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

And the parties who participated in that process

was TMHP and the dentist, correct? A Q That is correct. And in this particular case and in all cases, by

the way, the doctor submitted the prior authorization form to TMHP, as far as you know? A TMHP, and prior to that, to National Heritage

Insurance Company. Q And do you know whether or not TMHP in this

particular case, the Antoine case, that they ever rejected any of the prior authorizations submitted? A Q I would have no knowledge of that. Do you know whether or not TMHP at any time ever

complained about the quality or the records of Antoine? A that. Q And I take it, you have not -- have you or have I would not have no information with regards to

you not conducted some type of audit of the Antoine cases? A Q I have not. So you are not here to talk about anything

specific about Antoine; it's strictly the policy issues? A Q That is correct. You were -- do you recall an email that you and I

have spoken about in the depositions, an email that you prepared?

ken@kenowen.com * www.kenowen.com 800.829.6936 * 512.472.0880

a34cb9f9-4092-4b01-a7ff-1635cabdc746

Page 98
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

I recall discussing an email during my

deposition, yes, sir. Q 71. Now, that particular email, which I believe it's Let's get that email out. JUDGE EGAN: MR. CANALES: Q (BY MR. CANALES) What is the exhibit, please? P-71-04. So we can understand that

particular email, the background being that somebody asked that you respond to certain questions regarding the ectopic eruption, correct? A Q I was asked to respond to a number of questions. And these questions that you were asked to

respond, there was something part of your official duties as a consultant, correct? A Q Yes, sir. And so for example -- do you know why these

questions were being asked of you? A The questions were posed by an individual with

the Office of Inspector General at the Health and Human Services at the Federal level. Q And that's because, at this point in time, they

were in the process of conducting some type of audit, the Federal OIG was going to conduct an audit of the State, HHSC; is that correct? A At the time that these questions were posed to

ken@kenowen.com * www.kenowen.com 800.829.6936 * 512.472.0880

a34cb9f9-4092-4b01-a7ff-1635cabdc746

Page 99
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

me, I did not know exactly the basis for the questions. Q Okay. Do you know whether or not that audit by

the Federals of the State OIG-HHSC agency regarding prior authorization, do you know whether or not that audit has been completed? A Q A Q I do not know. Were you ever interviewed for that audit? Yes, I was. Were the questions asked of you in that audit

have to do with ectopic eruption and prior authorizations? A I don't recall the exact questions that were

posed to me. Q Let's look at Question Number 1. The question

asked of you on Question Number 1 -- it's kind of like a -- is required questions that you talked about. They

asked of you about the cephalometric radiograph with tracing is required. to TMHP? What should the orthodontist submit

Should it be submitted on an actual radiograph

or printed on white paper, and you said what? A The current orthodontic policy allows for the

dental provider to submit a copy of the actual cephalometric radiograph, which could be printed on plain paper. The tracings are an overlay on tracing paper that

shows various standardized angles, traces the first permanent molars, and upper and lower central incisors.

ken@kenowen.com * www.kenowen.com 800.829.6936 * 512.472.0880

a34cb9f9-4092-4b01-a7ff-1635cabdc746

Page 100
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

The tracings help the dentist to determine the most appropriate treatment plan. Q So the Judges can understand, you received this

email and your response is the response in blue? A Q That is correct. And so let me scroll down to Question Number 2.

They asked you a question about what documentation is acceptable, and you respond to Question Number 2? A Under current policy, the supporting

documentation must be in the patient's record, but can also be requested by the TMHP dental director. I will

have to defer to Dr. Felkner for input regarding what he and his prior authorization team require in order to accurately assess the medical necessity for their determination of the authorization. Q So the response to this is, you didn't know the

answer, correct, and you said go talk to somebody else? A Q A Q That is exactly right. And that somebody else is Dr. Felkner? Yes. And Dr. Felkner, at that time, was the TMHP

dental director? A Q That is correct. For the record, then Dr. Felkner, at this point

in time, did he work or was he employed by OIG?

ken@kenowen.com * www.kenowen.com 800.829.6936 * 512.472.0880

a34cb9f9-4092-4b01-a7ff-1635cabdc746

Page 101
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

A Q A Q A Q A Q

Not that I'm aware of. Did he work or was he employed by HHSC? No, sir. He worked for a private contractor? Yes, sir. TMHP, correct? Yes, sir. Again, they asked you in Step Number 3 -- well,

they talk about TH Steps Policy 31, what is TH Steps Policy 31? A Q A Is that the same thing as the manual?

No, sir, it is not. What is this? There is a policy document in which paragraphs

within that are numbered, so this is within the policy. It's Paragraph Number 31 that they are referencing. Q And they were asking you a series of questions

regarding and your response was? A I will have to defer to Dr. Felkner for input

regarding what exceptions, if any, he allows under the current policy. Q A Q Because you didn't know the answer? No, sir, I didn't know the answer. The next one talks about a transfer. Go down further. Let me get

to the point. point.

Let me get to the real

Six, I believe.

Number 7 is the main question of

ken@kenowen.com * www.kenowen.com 800.829.6936 * 512.472.0880

a34cb9f9-4092-4b01-a7ff-1635cabdc746

Page 102
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

all these. Here is what it says, the question to you was: TH Steps Policy 45.6 states that ectopic eruption is

an unusual pattern of eruption, such as high labial cuspids or teeth that are grossly out of the long axis of the alveolar ridge. out of the long axis? Now, this is a policy, by the way, that has been on the books ever since you can recall, correct? A Ever since the orthodontic -- I'm sorry. As far So what would be considered grossly

as this -Q A Q A Q The definition. Which definition are you referencing? Right here. The definition of ectopic eruption.

Which part of it? Whatever reads right here. 45.6 states that

ectopic eruption is an unusual pattern of eruption such as high labial cuspids or teeth that are grossly out of the long axis of the alveolar ridge. My question to you is: Is this definition

the same definition that applied -- we saw awhile ago in 19.1 in 2007, 2008, 2009, 2010, is it the same definition that was there? A Q Yes, sir. All right. And they asked you a question, right?

ken@kenowen.com * www.kenowen.com 800.829.6936 * 512.472.0880

a34cb9f9-4092-4b01-a7ff-1635cabdc746

Page 103
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

A Q

Yes, sir. They asked you, what would be considered grossly

out of the long axis; we need to know this in case we decide to use medical review. A And you responded?

That I don't believe that grossly out of the long

axis has ever been defined by Texas Medicaid. Q A What does that mean? Meaning that as a dentist and for a dental

professional, "grossly" is a common term, "out" is, "of" is, "the" is, "long" is, and "axis" is; therefore, it was not felt that the Texas Medicaid program had to redefine what is typically identified within the English language. Q A Q And this is something within the manual, correct? Yes, sir. And would you agree with me, Doctor, that what

controls in this case and every case is what the manual says? A Q Yes, sir. The manual is -- the manual cannot be -- can the

manual be changed by an individual provider? A Q A No, sir, it may not. Can the manual be changed by Dr. Altenhoff? In my capacity working for the State and as a

consultant to the Health and Human Services Commission, yes, it can.

ken@kenowen.com * www.kenowen.com 800.829.6936 * 512.472.0880

a34cb9f9-4092-4b01-a7ff-1635cabdc746

Page 104
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

Did you ever change the definition of ectopic

eruption under the periods of time we are talking about? A Q No, sir, I did not. Tell me whether or not an outside consultant,

Dr. Tadlock or Dr. Evans, can they change the definition of ectopic eruption? A Q A Q No, sir, they cannot. So it is what it is? It is what it is. And are you familiar with the opinion of Judge

Kilgore that was approved by HSC, Judge Fekety, regarding the definition of ectopic eruption? MR. HARGOVE: think that is irrelevant. JUDGE EGAN: Q (BY MR. CANALES) Overruled. Are you familiar with that Objection, Your Honor. I

decision, the Harlingen decision by Judge Kilgore that was affirmed by and adopted by Judge Fekety of HHSC appeals? A Q A Q I'm aware that an opinion was rendered. And did you read the opinion? Briefly. And did you read it briefly or enough to

understand that the definition of ectopic eruption as it states there is what controls? A I don't recall that exactly.

ken@kenowen.com * www.kenowen.com 800.829.6936 * 512.472.0880

a34cb9f9-4092-4b01-a7ff-1635cabdc746

Page 105
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

Q A Q

Let's go to 70.06.

Are you familiar with 70.06?

I have read this, yes. And did you read it shortly before coming to

trial here today? A Q No, sir. And when you read this, what conclusion did you

obtain from reading this report? A That the Office of Inspector General at the

Health and Human Services Commission had performed an audit of the prior authorization process utilized by Texas Medicaid and Healthcare Partnership and had found some concerns and had issued some recommendations. Q As a result of this audit, when did you receive a When, if you can recall? In all

copy of this audit?

fairness, just generally the year, whatever. A Q Early 2009. And after you received it in that particular time

period, did you ever make aware or inform your -- the dental orthodontic providers of this particular audit? A Q No, sir, I did not. You had -- there is something called a What is that?

shareholders' meeting. A Q

There was a stakeholders' meeting. Stakeholders' meeting, forgive me. Tell me what

a stakeholder's meeting is and what is your role in those.

ken@kenowen.com * www.kenowen.com 800.829.6936 * 512.472.0880

a34cb9f9-4092-4b01-a7ff-1635cabdc746

Page 106
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

Stakeholder meetings were opportunities for

Medicaid dental providers and other interested parties to come to Austin and meet with myself and other representatives from the Health and Human Services Commission, representatives from the oral health branch of the Department of State Health Services to talk about and to proactively elicit and vet with them potential changes to Medicaid dental policy, to discuss with them concerns that had been raised in questions brought to me by stakeholders in the interim time frames, through email or phone call, and to discuss with them their -- give me input with regards to their process and what they were thinking about the potential changes that were being considered by the state. THE REPORTER: Excuse me. I am having a

technical problem and I need to go off the record for a moment. (Off the record.) THE REPORTER: Q (BY MR. CANALES) Sorry about that. Go ahead.

The stakeholder meeting, is

this a meeting open to the public? A Q Yes, sir, it is. And do you know whether or not orthodontists,

dentists are -- dentists who provide services to Medicaid are invited?

ken@kenowen.com * www.kenowen.com 800.829.6936 * 512.472.0880

a34cb9f9-4092-4b01-a7ff-1635cabdc746

Page 107
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

Dentists who provide services to Medicaid

participated, and yes, they were encouraged to come to the meetings. Q Can you tell me whether or not this is an open

meeting where someone from the back room can shout a question of you and ask you what's happening here, that kind of thing? A sir. Q A And you could equally respond to them, right? If I had the information and could accurately That happened on a number of occasions, so yes,

respond to them, yes, I did. Q Was there -- did there come a time some time

before January 1st of 2012 where you informed -- did you inform the stakeholders of the change of the definition of ectopic eruption or the clarification, as you say? A Q I don't recall that I gave that clarification. And let me show you this document that's, I Again, can you highlight it?

believe, 71-03.

Do you recall this document -- whether the first time the new definition came out was published? A I recall this document. I do -- since there was

not a new definition, then this didn't contain a new definition. Q Let's go to Page 8 of it. That is now a

ken@kenowen.com * www.kenowen.com 800.829.6936 * 512.472.0880

a34cb9f9-4092-4b01-a7ff-1635cabdc746

Page 108
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

different definition. that correct? A

It's a different definition; is

It is -- the first sentence is the same as what The second sentence is

has been in the manual since 1996. the clarification that was provided. Q

And in that second sentence, you say that

clarification was not there before? A Q A No, sir. It had something else, right? There was -- again, you would have to go back. I

believe there was a notation or something. Q So did this particular definition cause any type

of discussion in your next subsequent stakeholders' meeting? A This clarification -- this was issued in 2012.

The next stakeholder meeting would have been either the January or April 2012 stakeholder meeting, and I don't recall that this was specifically raised. of drama in both of those meetings. Q What do you mean there was a lot of drama? I There was a lot

cannot imagine drama between a whole series of orthodontists, dentists and you? A me. Q What was the drama about? I don't know that it was specifically aimed at

ken@kenowen.com * www.kenowen.com 800.829.6936 * 512.472.0880

a34cb9f9-4092-4b01-a7ff-1635cabdc746

Page 109
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

During that time in the January 1, was just prior

to transition from a fee-for-service environment for the dental services to a managed-care environment for the dental services in Medicaid. There was a lot of angst

about what that change -- how that was going to impact the provider base. And so there was about 165 individuals in

the audience for that meeting and all of them had their own particular concerns that they were passionately addressing during the meeting. Q Even at this meeting, would you agree that none

of these passionate concerns had the collective power to change this particular language; is that correct? That's

the language now that was on the books put out by HSC and TMHP, correct? A This language, they had been notified of it and

nobody during -- that I recall, during either that meeting in January of 2012 or the April meeting in 2012 raised any concerns about this definition or this change in clarification. Q Do you recall people complaining to you about the

definition of ectopic eruption and you responded, well, why don't you just go Google it? A Q A Yes. What was that about? October of 2011, during the stakeholder meeting,

ken@kenowen.com * www.kenowen.com 800.829.6936 * 512.472.0880

a34cb9f9-4092-4b01-a7ff-1635cabdc746

Page 110
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

Dr. Paul Dunn stood up and asked about ectopic eruption, that there seemed to be confusion around that. And I

suggested to him -- gave him the information out of the manual that it was an unusual pattern of eruption, such as high labial cuspids and teeth grossly out of the long axis of the arch, and that if he -- that as a professional, as a dentist, I felt that that should have been fairly easily understood, and that if there was a need, perhaps they should Google it to see. Q Where is TMHP in all this process? They are the

ones approving or disapproving the prior authorizations, right? A meeting. Q And as a result of them being there, did TMHP Or are they? There were representatives of TMHP at that

announce to the dentists a change of policy or a change of definition or a clarification of ectopic eruption? Anybody announce from TMHP there? A No, sir, they did not. JUDGE EGAN: MR. CANALES: THE WITNESS: JUDGE EGAN: THE WITNESS: Q (BY MR. CANALES) 2010? 2011, I believe. I'm sorry. I had down that it was -2011. Do you think that one of the Not in October of 2010.

ken@kenowen.com * www.kenowen.com 800.829.6936 * 512.472.0880

a34cb9f9-4092-4b01-a7ff-1635cabdc746

Page 111
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

reasons you referred to them to go seek information from Google was because you could not answer the question regarding ectopic eruption? A Q You could not do it?

No, sir, that's not accurate. Well, Dr. Dunn was certainly not satisfied with

your answer, right? A Q You would have to ask him, I'm not sure. You would agree with me that whatever answer

there was or is, it should be found in the manual? A Q A The manual explains it. And the manual is what everybody is bound by? The manual explains to the dental professionals

who, by virtue of their professional training, should understand what it says. Q And they should understand pursuant to the

definitions and instructions given in the manual, correct? A Again, these are not terms that are not found

within both either medical dictionaries or within Webster's dictionary. Q So would you agree with me that those terms not

found there, it is a very subjective test then, as to what is an ectopic eruption? A The terms are defined within those elements and I

don't believe that it is that subjective. Q But it is subjective.

ken@kenowen.com * www.kenowen.com 800.829.6936 * 512.472.0880

a34cb9f9-4092-4b01-a7ff-1635cabdc746

Page 112
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

A Q

Then you have your right to your opinion. Well, more than that, the question for you,

Madame, is whether or not is the HLD scoring definition of ectopic eruption for the year in question we are talking about, is that -- is that definition subject to a subjective interpretation? A Q It is subject to the individual's opinion. That being subjective, right? I can't hear you.

Is that a yes? A Yes. MR. CANALES: a second? JUDGE EGAN: MR. CANALES: JUDGE EGAN: Yes. Pass the witness. Before we go to redirect, we Can I confer with counsel for

have got some questions and then we will open it up for redirect and recross based on our questions. EXAMINATION BY JUDGE SEITZMAN: Q I just have a couple questions, Doctor. During

your direct with Mr. Hargrove, you went through and several times you testified that submitting inaccurate information was a program violation; is that correct? A Q Yes, sir. My question is: Is every inaccuracy or error,

ken@kenowen.com * www.kenowen.com 800.829.6936 * 512.472.0880

a34cb9f9-4092-4b01-a7ff-1635cabdc746

Page 113
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

are they all program violations?

In other words, no

matter what the severity of the inaccuracy, do they arise to the same level? A I believe they would all be considered program

violations as to the severity, that's not for me to judge. Q So if, for example, since I don't know the

patients' names, any similarities to a patient actually in this case is purely coincidence, as put in the bottom of a fiction movie, but let's suppose all the documentation showed the patient as Randall Smith; spelling with two Ls in Randall. And somewhere in the scoring, I made a typo

and I did Randall as one L instead of two; obviously inaccurate, right? A Q Yes, sir. Now, is that a program violation because I

submitted on one piece of paper with Randall as one L instead of two? A I would think it could be considered a program

violation. Q And so -- but you don't make any judgment as to

the severity of the violation? A Q A Q No, sir, I do not. Who does? I don't know for sure. So is it your opinion -- are you familiar with

ken@kenowen.com * www.kenowen.com 800.829.6936 * 512.472.0880

a34cb9f9-4092-4b01-a7ff-1635cabdc746

Page 114
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

the policies and everything that a typographical error on a spelling of a first name should be treated the same as a identification of a patient at the wrong -- of the wrong age? Let me make it easy for you, identifying a

23-year-old as an 18-year-old, so somebody who qualifies for the program as opposed to somebody who doesn't. A They are both inaccuracies. Given that the name

Randall could be spelled in various connotations, I would think that would potentially have less of a program -- be a lesser program violation than having a discrepancy such as age. Q So simply tagging something as a program

violation doesn't tell us very much unless we know what the underlying inaccuracy is; would that be correct? A Given this, when they are -- when a provider is

submitted documentation, whether it is for a prior authorization or for a claims for reimbursement purposes, if it is -- if it's going to impact whether or not the benefits are provided and paid for, are allowed and paid for, to me, that makes it a more significant program violation than if they have misspelled a child's name as being Randall with one L instead of two on a piece of document. So does that answer your question? Q It does. So there is a common sense approach.

ken@kenowen.com * www.kenowen.com 800.829.6936 * 512.472.0880

a34cb9f9-4092-4b01-a7ff-1635cabdc746

Page 115
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

In other words, what I was getting from the testimony is that any inaccuracy can be a program violation, but it's kind of like speeding 20 miles over the speed limit versus one mile; they are both technically speeding, but they have different consequences? A I would think that would be an accurate

presumption. JUDGE SEITZMAN: I had. EXAMINATION BY JUDGE EGAN: Q Just a question regarding the process with the I understand that a package is Those are all the questions

prior authorization.

submitted, reviewed and approval is either given or declined for the procedure. From what I heard you say and

what is in the manual, that's not a guarantee of payment. So is there a second opportunity to review and determine medical necessity when the claim for payment comes in? A Judge, you asked if there is an opportunity to

review it again, I believe that there is that opportunity. How frequently that opportunity is exercised, I don't know. Q Who -- what entity determined whether or not a

claim for payment was going to be paid? A TMHP, Texas Medicaid Healthcare Partnership has

ken@kenowen.com * www.kenowen.com 800.829.6936 * 512.472.0880

a34cb9f9-4092-4b01-a7ff-1635cabdc746

Page 116
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

that responsibility. Q So they had both the responsibility to do prior

authorizations and to make -- to review the claims and pay those that were valid? A Yes, ma'am. JUDGE EGAN: All right. MR. HARGOVE: I just wanted to clarify. Mr. Hargrove, any redirect? Thank you, Judge.

REDIRECT EXAMINATION BY MR. HARGROVE: Q Earlier in response to Mr. Canales' question

about -- he kept on trying to get you to say that these are in the manual, that these are definitions. put that document up now? Highlight the title. Will you

So is it your understanding that in the manual here, Section 19.21, these aren't definitions, but they are instructions on how to score the HLD score sheet; is that your understanding? A That is my understanding. This is guidance and

instructions to the providers as to how to score. Q Okay. And now the manual is not written for a

layperson, is it, especially with the orthodontic section, correct? A The manual, I don't believe it's written for a

layperson, no.

ken@kenowen.com * www.kenowen.com 800.829.6936 * 512.472.0880

a34cb9f9-4092-4b01-a7ff-1635cabdc746

Page 117
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

It is written with the understanding that this is

a dentist who is being instructed on how to score this, correct? A Q Yes, sir. So a dentist learns about ectopic eruption in

dental school? A Q Yes, sir. And then so, basically, these instructions, there

are instructions on how to fill out the document to the right, which is the HLD score sheet; is that your understanding? A Q Yes. Now, in terms of the issue about whether a claim

is approved or not, is it your understanding that -- well, a provider must provide truthful and correct information when seeking -- when submitting a prior authorization, right? A Q That is correct. And at that stage, that could be a program

violation if there's, for example, a misrepresentation about the true HLD score, correct? A Q Yes, sir. And it's -- issues, I think, that were mostly

discussing about, for example, whether -- going back to your direct testimony about the limitations of the

ken@kenowen.com * www.kenowen.com 800.829.6936 * 512.472.0880

a34cb9f9-4092-4b01-a7ff-1635cabdc746

Page 118
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

benefit.

So the issue about the -- what is important, are

those issues about misrepresentations related to limitations of benefits or eligibility determinations; is that your understanding? A Q Yes, sir. And your department -- in your capacity, you

don't decide to what extent or under what circumstance OIG might be seeking a violation, correct? A That is correct. MR. HARGOVE: MR. CANALES: Thank you, Judge. One question.

RECROSS-EXAMINATION BY MR. CANALES: Q At the stakeholders' meeting, whatever you said

at the stakeholder meeting, do you believe that your representations are to be relied on by the attendees? A Are you talking about any particular stakeholder

meeting, sir? Q The one that -- do you recall Dr. Nazari being at

a stakeholders' meeting, first of all? A Q Yes, I do. Do you recall Dr. Nazari asked you questions at a

stakeholders' meeting? A Q Yes, I do. Do you recall that whatever response you made to

ken@kenowen.com * www.kenowen.com 800.829.6936 * 512.472.0880

a34cb9f9-4092-4b01-a7ff-1635cabdc746

Page 119
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

Dr. Nazari's questions, that Dr. Nazari is entitled to rely on your representations? entitled to rely on them? A Q Excuse me? Was he entitled to rely on any representations Whatever you said, is he

you made to Dr. Nazari regarding the prior authorization process? A Q I would say, yes, sir. And do you believe that TMHP -- do you believe

that -- do you know whether or not TMHP, at any point in time, wrote a letter complaining -- asking for an audit of Dr. Nazari's patients' prior authorization files or any other doctor; do you know about that? A Q A Q A Q I don't know. Do you know if it ever happened? Whether TMHP requested? Yes. I don't know. And the reason you don't know is because it never

happened, right? MR. HARGOVE: JUDGE EGAN: Q (BY MR. CANALES) Objection. Sustained. Will you agree with me that

this entire ectopic eruption payment hold issue all began as a result of the WFAA stories in Dallas?

ken@kenowen.com * www.kenowen.com 800.829.6936 * 512.472.0880

a34cb9f9-4092-4b01-a7ff-1635cabdc746

Page 120
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

MR. HARGOVE: JUDGE EGAN: Q A (BY MR. CANALES) I don't know. MR. CANALES: questions. MR. HARGOVE: JUDGE EGAN:

Again, Your Honor, I object. If she knows, she can answer. Okay. Do you know?

Okay.

Thank you.

No other

Just one question, Judge. Hold on. Let me just caution,

I have let this go a little bit further, but on redirect and recross, y'all are limited to what has been brought up. And so I will strictly do that with future witnesses. MR. HARGOVE: I hear you, Judge. But that's why we want to

JUDGE SEITZMAN:

ask our questions before you go to redirect. MR. HARGROVE: question? MR. CANALES: I passed him. One more bite. Okay. May I ask one more

I've got one more after that. JUDGE EGAN: to his redirect. Go ahead. FURTHER REDIRECT EXAMINATION BY MR. HARGROVE: Q Is it your understanding that TMHP, they did not Well, it's going to be limited

create the policy, the policy is created by the State; is

ken@kenowen.com * www.kenowen.com 800.829.6936 * 512.472.0880

a34cb9f9-4092-4b01-a7ff-1635cabdc746

Page 121
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

that correct? A It is the State's responsibility to develop

Medicaid policy. MR. HARGOVE: Okay. Thank you.

FURTHER RECROSS-EXAMINATION BY MR. CANALES: Q And this policy is published and printed out

under TMHP? A Q The actual policies are not published. The manual publishes the rules for all the

providers to be able to follow, correct? A Q TMHP? A TMHP has the contractual responsibility to The manual provides guidance to providers. And the manual is published under the title of

publish the manual. Q I understand that. Just one more question.

But the manual is published by TMHP? A Q A I think I have -The answer to that is yes? Yes. MR. CANALES: JUDGE EGAN: MR. HARGOVE: JUDGE EGAN: Thank you. Anything further? No, Judge. Anything further?

ken@kenowen.com * www.kenowen.com 800.829.6936 * 512.472.0880

a34cb9f9-4092-4b01-a7ff-1635cabdc746

Page 122
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

MR. CANALES: JUDGE EGAN:

No, Your Honor. You are excused. Thank you very much. How long do y'all

DR. ALTENHOFF: JUDGE EGAN: want for break?

It is 12:30.

Is an hour long enough? Yes. Yes. Who will be the next witness? Dr. Tadlock, Judge. Okay. Then we will be back

MR. CANALES: MR. HARGOVE: JUDGE EGAN: MR. HARGOVE: JUDGE EGAN: here at 1:30.

(Off the record.) JUDGE SEITZMAN: Let's go on the record.

It's 1:31, we are back on the record. There was a supplemental motion on a complaint that came in this morning, so Judge Egan is prepared to take that up. JUDGE EGAN: We reviewed the trial

supplement to the Respondent's complaint, and the motion to supplement at this late date is going to be denied. MR. MORIARTY: issue? JUDGE EGAN: MR. MORIARTY: Yes. Let me tell you why that Judge, can I speak to that

supplement was filed and let me tell you that it is a

ken@kenowen.com * www.kenowen.com 800.829.6936 * 512.472.0880

a34cb9f9-4092-4b01-a7ff-1635cabdc746

Page 123
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

supplement, not an amendment, as it's been contrasted. JUDGE SEITZMAN: What we got from it was

that there were overcounts in the -- based on -- in the original complaint based on a spreadsheet, and now you were trying to make clear exactly how many patients in each of the categories were actually a part of this case. MR. MORIARTY: It's not an overcount. Can I speak to the issue? There were

It is a spreadsheet.

never 145 patients at issue. patients at issue.

There's always been 63

Now, I want to apologize for asking to

supplement at that late today, but as this Court knows, we got hired three weeks ago and we figured out last week that our pleadings do not candidly disclose to you the issues that you need to face. We are seeking to supplement our pleadings to add clarity to the Court so you know what's in front of you, so you know whether the evidence actually meets our pleadings. We have actually gone beyond the

supplementation and we specified the specific patients for who are at risk. Here is what happened, and it's just a duty of candor that causes us to file this. week that these pleadings were wrong. We discovered last The State figured

out the pleadings were wrong after the time to amend the date, and they let it sit. We discovered that and we

ken@kenowen.com * www.kenowen.com 800.829.6936 * 512.472.0880

a34cb9f9-4092-4b01-a7ff-1635cabdc746

Page 124
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

said, wait a minute.

We owe a duty of candor to the Court Now, the Petitioners, and

so they know what is at risk.

we have always known that there are 63 patient files at risk. So this 145 HLD scores can't possibly be true. And for you to figure out how to render a proper verdict in this case, you have to know what's really at issue. JUDGE SEITZMAN: I don't mean to cut you

off, but I'm going to, so I guess I do mean to cut you off. Let me use my umpiring skills, as I do it. We

understood this.

We understood this weeks ago when the So we have

special exceptions was raised by Mr. Canales.

understood all along that there were fewer patients than there were counts. That's why I say there was some other

counts because, as it was explained to us, a patient had visits that was ten counts. So we understood that.

The trouble that I think arises, and you can make it clear in your closing and make it clear in your brief and do all that, but the trouble arises in that the 100 percent hold was brought on the basis of what was alleged in the complaint. And I think the Petitioners

have -- I think we think the Petitioners have the right to attack that and continue to show the errors. understand it, we appreciate it. So we

It is not new to us.

Again, it was brought up some weeks ago on

ken@kenowen.com * www.kenowen.com 800.829.6936 * 512.472.0880

a34cb9f9-4092-4b01-a7ff-1635cabdc746

Page 125
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

the special exceptions motion and we are not prohibiting you from correcting it, but we are just saying we are not going to allow you to supplement your complaint at this time. You can do it as part of the closing portion of

your case. MR. MORIARTY: I appreciate that. The Court

earlier dealt with the issue of whether Ketan had the authority to appear before the Court. I have got a copy

of the contract if the Court would care to see it. JUDGE SEITZMAN: it? MR. MORIARTY: saw it before we did. MR. HILDER: I have no doubt he actually Sure. Has Mr. Canales seen

It's the last page. Judge, I object. And the

objection is that Mr. Kharod still has his own law firm, he is not an employee of the Waters Kraus firm. He has a

web site with the State Bar of Texas and specifies that he's had his firm since 2002. And if he's to be a part of

this case, then I suppose they can hire him as an independent contractor perhaps, but it doesn't purport to conform to the contract. He has his own firm, he was not hired by the AG's Office, and therefore, he should be stricken. JUDGE SEITZMAN: He's listed in the contract

and we are going to be satisfied with that for now, and

ken@kenowen.com * www.kenowen.com 800.829.6936 * 512.472.0880

a34cb9f9-4092-4b01-a7ff-1635cabdc746

Page 126
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

pursue what other avenues you wish to pursue. JUDGE EGAN: Thank you. All right. So just for

JUDGE SEITZMAN:

clarification, that motion to strike him as counsel is overruled. Now, we are ready to proceed with the next witness. MR. HARGROVE: man. We are. Dr. Larry Tadlock. JUDGE SEITZMAN: Doctor. LARRY TADLOCK, D.D.S., having been first duly sworn, testified as follows: DIRECT EXAMINATION BY MR. HARGROVE: Q A Q A Q A Q A Dr. Tadlock, good afternoon. Good afternoon. Would you please state your full name. Larry Paul Tadlock. What do you do for a living? I'm an orthodontist. Where do you practice? Keller, Texas. Would you take a seat, Judges, we would call our expert, Yes. Kharod is my right-hand

ken@kenowen.com * www.kenowen.com 800.829.6936 * 512.472.0880

a34cb9f9-4092-4b01-a7ff-1635cabdc746

Page 127
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

Q A Q

Let's talk about your educational background. Okay. Starting with dental school, where did you go to

dental school? A I went to Baylor College of Dentistry and

graduated in 1984. JUDGE SEITZMAN: Doctor, excuse me. I'm not

sure -- can you tap on the mic and make sure it is working. Q A Q of -A Q I was -- I was -Hold on. We can't talk over each. You may need to pull it towards you. (BY MR. HARGOVE) Continue. I'm sorry.

Baylor College of Dentistry, graduated in 1984. And then after you graduated from Baylor College

So after Baylor College of Dentistry, what did do you? A I was in general dental practice for two years,

and then went back to residency program in Houston, University of Texas, Dental Branch Houston, and got my orthodontic certificate and a Master's in biomedical sciences, graduating in 1988. Q Okay. At that time, did you become an

orthodontist? A Yes.

ken@kenowen.com * www.kenowen.com 800.829.6936 * 512.472.0880

a34cb9f9-4092-4b01-a7ff-1635cabdc746

Page 128
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

Q A Q

And you've been an orthodontist since 1988? Yes. And as an orthodontist, what have you been doing

since 1998 [sic]? A Q A Since 1988? 1988, I'm sorry. Was in private practice for a number of years

full-time, and then about 13 years ago, began to -- began as an educator at Baylor College of Dentistry, just a little over 13 years ago, and maintained my private practice. Q And I've been doing that ever since.

And the Baylor College of Dentistry, is it now

Texas A&M? A Q A It is. So they took a step up in the world, right? No, actually -- well, we will leave that for

another day. Q A Have they taught you how to whoop? Not going to happen, but I'm an employee of Texas

A&M, yes. Q A Q My wife will teach you later. Okay. And you've been on the faculty -- what is your

title at Baylor? A Associate Clinical Professor.

ken@kenowen.com * www.kenowen.com 800.829.6936 * 512.472.0880

a34cb9f9-4092-4b01-a7ff-1635cabdc746

Page 129
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

Q A Q

And you've been in that position for 13 years? Yes. Tell us as Associate Clinical Professor at Baylor

College of Dentistry, what do you do? A Well, I lecture almost every week for an hour to

the residents, eight to nine different groups, first-, second- or third-year. It's a three year program now.

And then I have -- I supervise patient care with the residents from 9:00 to noon. Q A Q And when you say residents -Those are orthodontic graduate students. These are dentists who are going through a

residency program in orthodontics? A Yes. They graduated from dental school and they

are accepted into the orthodontic programs and the hours, and so for the next three years, they are orthodontic residents. Q As a clinical professor, what are your other

additional duties? A Besides supervising patient care, then I also

supervise work with the residents on research and work with other faculty members on different research projects, as well. Q A And is the research related to orthodontics? Yes.

ken@kenowen.com * www.kenowen.com 800.829.6936 * 512.472.0880

a34cb9f9-4092-4b01-a7ff-1635cabdc746

Page 130
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

And how many residents do you supervise on

average per year? A year. There are six in each class, so we have 18 every We just graduated a class, so we have 12 right now

until the first week of July, and we have our new class coming in. Q Would it be fair to say that in addition to your

duties at Baylor, you are a researcher, but you are also a wet-finger orthodontist, right? A Q Baylor? A Q Yes, we have patients at Baylor. And tell us about how -- a little bit about those Absolutely, three days a week. And the patients are patients actually treated at

patients that you treat at Baylor? A Well, it's a teaching institution, so we don't We accept

just accept every patient that comes in.

certain types with -- most are difficult, because we want the students to learn the most difficult patients. that's what we accept, we screen and accept those. Q A And Baylor is a Medicaid provider, correct? We are, and we do see Medicaid patients. We So

don't have very many, only because we believe we score it properly, but we -- our conversion rate, I don't know the current number, but it's less than 25. We have between 20

ken@kenowen.com * www.kenowen.com 800.829.6936 * 512.472.0880

a34cb9f9-4092-4b01-a7ff-1635cabdc746

Page 131
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

and 25 patients; we have screened close to 700 Medicaid patients. Q So just so I understand it correctly, a patient

who is a Medicaid beneficiary may get referred to you at Baylor, correct? A Q Yes. And so in that capacity, Baylor is providing

Medicaid services, right? A Q Yes. And you are, in your capacity at Baylor, a

Medicaid provider, correct? A Well, I am a -- in my capacity under the umbrella

of Baylor, yes, a Medicaid provider. Q A Q And have you been a Medicaid provider? Yes. And with these Medicaid beneficiaries at Baylor,

are you actually treating these children? A Yes, we treat them with the residents, with the They are assigned to a student and the faculty,

students.

sometimes several faculty is assigned, but we are assigned to monitor the students and the treatment. diagnostic and treatment plan decisions. We make The students

don't get to make the decisions, but that's how we do it. Q And have you ever assisted in scoring a Medicaid

beneficiary at Baylor to determine --

ken@kenowen.com * www.kenowen.com 800.829.6936 * 512.472.0880

a34cb9f9-4092-4b01-a7ff-1635cabdc746

Page 132
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

A Q

Yes. Hold on. You have got to let me finish.

To determine whether the patient meets the eligibility criteria for braces under the Texas Medicaid program? A Q Yes. And tell us how many times you think you have

done that? A Well, I have probably looked at several hundred

HLD score sheets. Q A Several hundred? Several hundred. There's no way I can put a

number on that. Q And these are patients that you are trying to

determine whether they are eligible for braces under the Texas Medicaid program, correct? A Q Correct. But it sounds like not all of them get past

Baylor and your screen process, correct? A Q A of 26. Correct. Why is that? Because they are not anywhere close to the score It is not a severely handicapping malocclusion as

defined by the HLD index. Q All right. So I also want to talk about, you as

ken@kenowen.com * www.kenowen.com 800.829.6936 * 512.472.0880

a34cb9f9-4092-4b01-a7ff-1635cabdc746

Page 133
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

an expert, what other hats you wear in life, what other professional hats you wear. As I understand it, you are a

board member of the American Board of Orthodontists? A Q A Yes. What is the American Board of Orthodontists? The American Board of Orthodontists is the only

sanctioned certifying body for the profession of orthodontics. We are sanctioned by the American Dental

Association and the American Association of Orthodontists. Q A And you are board certified in orthodontics? Board certified, and I am a director. There are

eight directors from around the United States. Q A Q A And you are one of the eight? I am one of the eight. What is the obligation as a director of that? Well, the American Board of Orthodontists is We

essentially the standard bearer for the profession.

are -- our objectives are to protect the public, Number One. Number Two is to issue examinations for the purpose

of both certification, and then for continued certification. Those examinations are written during a The students are required to take the

residency program.

written exam, and then the oral exam is voluntary and it is any time after graduation. We participate in developing certifying

ken@kenowen.com * www.kenowen.com 800.829.6936 * 512.472.0880

a34cb9f9-4092-4b01-a7ff-1635cabdc746

Page 134
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

boards around the world and -- and among those would be Brazil that we did last year, and Columbia that I will work with this summer. And then the other critical aspect

is that we work closely with educational programs around the country and in Canada to help improve the quality of education in those programs. Q As it relates to the exams, the written exam and Do you, for

the oral exams, what role do you play?

example, help draft the exams and administer the exams? A Yes. We are responsible for creating, writing The written exam is The

and administering both exams.

administered through the Pearson VUE Testing Centers.

clinical exam is at our testing center in Saint Louis, and we do about three to four exams, about 30 days a year of examinations. Q Are you about to step into the role of the Chair

of the -A Clinical committee. I'll be Chair of the

clinical committee at the end of this year and responsible for administering the clinical exam. Q And in your capacity as the professor at Baylor

and a director of the ADO, how did you become interested in Medicaid issues in addition to your treatment? A Well, I guess you mean interested in as, did I --

when did I hear of problems or potential problems?

ken@kenowen.com * www.kenowen.com 800.829.6936 * 512.472.0880

a34cb9f9-4092-4b01-a7ff-1635cabdc746

Page 135
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

Q A down.

That is correct. Sometime in 2010, and I can't pin the exact date Over a period of months, I had two former students

of mine call and ask to meet with me about concerns in the practice where they were working. And then another

graduate of the Houston program who was referred to me asked to call me about it. And that was the first that I

had heard of anything happening. Q All right. And in addition to all the other

matters that we discussed, do you also research in the field of orthodontics? A Q A I do, yeah, at the school. At the school at Baylor? Yeah. The other thing that I'm involved in as a

-- on the education side is I'm a site visitor for the Commission on Dental Accreditation, which is the accrediting body. We are under the umbrella of the U.S. And as a site visitor, I'm

Department of Education.

charged with -- every program goes through an accreditation process. Most of them are pretty reasonable

and -- but in any event, we are basically randomly selected to go to programs and evaluate their programs to see they are meeting the accreditation standards set by CODA. Q In addition to all those other duties and honors

ken@kenowen.com * www.kenowen.com 800.829.6936 * 512.472.0880

a34cb9f9-4092-4b01-a7ff-1635cabdc746

Page 136
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

and obligations that you have, are you in private practice as an orthodontist, as well? A Q A Yes. And you have your own private clinic? Yes. MR. HARGOVE: Judge, I would offer Dr.

Tadlock as an expert in this case. MR. HECTOR CANALES: Your Honor, we would

object to Dr. Tadlock's opinions in this case because his opinions, as we brought to the Court's attention, this case centers around the April 4th, 2012 notice of payment hold that HHSC gave to Antoine Dental Clinic, and Dr. Tadlock was not hired in this case until May 28th, over a month after that notice was given. His report in this

case was not -- his opinions were not made until nearly a year later, in February of 2013. Therefore, Your Honor, under Rule of Evidence 702 and 403, his opinions do not bear on the matter at issue, the April 4th notice of payment hold; that will not assist this Court in determining the facts of the payment hold that was delivered back in April since he was not a part of that determination. object to his opinions. JUDGE SEITZMAN: Objection is overruled and So we would

he will be received as an expert as tendered.

ken@kenowen.com * www.kenowen.com 800.829.6936 * 512.472.0880

a34cb9f9-4092-4b01-a7ff-1635cabdc746

Page 137
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

MR. HARGOVE: Q (BY MR. HARGOVE)

Thank you, Your Honor. Dr. Tadlock, you were retained

by the OIG as an expert to review 63 patient files, correct? A Q A Yes. Tell us briefly what your review consisted of? I was asked to review the records to score and So I used the records to score

evaluate the HLD scores. the HLD index. Q All right.

We are going to look at a patient

file, but before we do that, let's talk briefly about some of the teeth and orthodontic issues. couple minutes on this. We will spend a

If I could get you up on your

feet, and what I would like you to do is -- you are an expert, tell the Judges -- do you need a laser pointer? A Q I will take it. If you would please, tell the -- let's play this

video, and then if you can describe for us what you are seeing. A It's kind of scary looking. JUDGE SEITZMAN: If you can get to where you

are not standing between us and the screen, that way you are also facing the court reporter. Q (BY MR. HARGOVE) Why don't you come over here,

and you are going to have to speak up a little bit.

ken@kenowen.com * www.kenowen.com 800.829.6936 * 512.472.0880

a34cb9f9-4092-4b01-a7ff-1635cabdc746

Page 138
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

I can do.

This simply just shows primary teeth

or baby teeth erupting into the mouth, and these are the permanent teeth that are erupting. And this is really

pretty much inconsequential, except for what we are calling these teeth. So if -- feel free to interrupt me

if you have any questions. But for the purposes of HLD scoring, I think you have already heard that it is pretty much right through here, in the front of the mouth. This being the

midline, the way the teeth are counted is pretty simple. Starting at the midline, one, two, three, and then one, two, three going this way. If I say -- I'm going to try

to say front and back because that makes a lot of sense. If I accidentally say anterior, it means front, but stop me, Court Reporter, and I'll say front. These are the -MR. HECTOR CANALES: Your Honor, I would

object to this narrative and proceed on a question-and-answer basis rather than just the narrative and lecture basis. I understand there's a little leeway here, but I think question-and-answer is appropriate. JUDGE SEITZMAN: at this point. It's helpful to the Court

It's overruled.

You may proceed.

ken@kenowen.com * www.kenowen.com 800.829.6936 * 512.472.0880

a34cb9f9-4092-4b01-a7ff-1635cabdc746

Page 139
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

Front teeth start right here at the canine; That's pretty

everything behind the canine is back teeth. simple.

These front four are the incisors, and that's

pretty much the limit of what we need to know in order to know which teeth we are looking at and what we are counting. Q (BY MR. HARGOVE) If we could just quickly

identify the name of the teeth one more time. A This is the central incisor, the next one over is And

the lateral incisor, and then you have the canines.

the same for the lower, these are central incisors, and that's lateral incisor and that's a canine. Q And just to make sure we have got it right. One,

two, three; one, two, three is how it is scored? A Q Yes. And same thing on the bottom, one, two, three;

one, two, three? A Q Yes. Tell the Judges why that scoring method is

important for our purposes? A Well, because when identifying teeth that you are

scoring or -- that's just how orthodontists identify the teeth. There are other dental numbering systems. This is

pretty simple, and that's what we use.

On the HLD index,

you will see which teeth are scored as ectopic based on

ken@kenowen.com * www.kenowen.com 800.829.6936 * 512.472.0880

a34cb9f9-4092-4b01-a7ff-1635cabdc746

Page 140
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

the teeth, one, two or one, two, three, that sort of thing. Q Let's look at a patient file. P-1, please. This

is a patient file produced by Antoine Dental Center. These are pre-authorization images of this young man, correct? A Q patient. A Well, can I just go through and show what is in When Yes. Tell us about what you observed about this

the chart, just to show you what we are looking at.

we are asked by -- as a reviewer to review a chart for, let's say, in this case, the HLD index, what I'm looking for in order to score it, photographs. There are other

parts of the chart, the cephalometric radiograph, which is the x-ray of the side of the head, the panoramic radiograph, which is just sort of as you looked at earlier. This is the tracing of the cephalometric

radiograph, there are points on there that are selected, identified and then measurements made from that tracing. These are other parts of the paperwork that is in the chart, health history. Basically, it's a full chart,

whatever they had in there is in there. Q A What is this? These are the chart notes, these would be

ken@kenowen.com * www.kenowen.com 800.829.6936 * 512.472.0880

a34cb9f9-4092-4b01-a7ff-1635cabdc746

Page 141
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

filings. MR. HARGROVE: Q (BY MR. HARGROVE) Zoom up on that a little bit. So this is a -- is this a

request for a prior -- this is a receipt that they have been authorized to perform braces, right, based upon the information provided? A Q Yes. And we have talked about some codes, but what is

that code D-8080? A Q A Q A Q It's comprehensive treatment. And that's what we are talking about, braces? Yes. Okay. Those are the ones that the HLD score sheets -Let's make that bigger. Now, tell us what this

document is here. A Q This is the HLD score sheet. Now, Dr. Altenhoff already went through this a Tell us again what we are looking at.

little bit. A

We are looking at the different sections of the

HLD score sheet for the purpose of calculating 26 or determining the score as to whether the patient meets a severely handicapping malocclusion. So each one of these

-- cleft palate is an exception, but starting down here, there's overjet, overbite, we have some pictures of that.

ken@kenowen.com * www.kenowen.com 800.829.6936 * 512.472.0880

a34cb9f9-4092-4b01-a7ff-1635cabdc746

Page 142
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

It will be a little bit easier in a moment.

Mandibular

protrusion, open bite, ectopic eruption, crowding. MR. HARGROVE: A Let's zoom on this part.

This is an indication that they scored in the

upper right-hand side, Tooth Number 1 and Tooth Number 2, this side 1 and 2, so forth, for eight ectopic teeth, all the incisors, upper and lower. MR. HARGROVE: Can you bring us in an image

of the pre-authorization photo and match it with the scoring? Q Highlight this and then highlight the scoring. (BY MR. HARGROVE) So again, we earlier counted

the teeth, 1, 2, so how does that show us how the teeth match up with the scoring? A The teeth that were scored as ectopic eruption This tooth, the

were these four teeth, the four incisors.

next one over, keep going, and then this tooth, the next one over, and then the bottom four incisors. Q So because they scored those four teeth here, how

many points did Antoine score? A Four top and four bottom, so eight total teeth;

three points per tooth is 24 points. Q So if they scored one tooth ectopic, they get

three points, right? A Q Yes. And they scored, in this case, eight teeth as

ken@kenowen.com * www.kenowen.com 800.829.6936 * 512.472.0880

a34cb9f9-4092-4b01-a7ff-1635cabdc746

Page 143
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

ectopic, correct? A Q Yes. This might be a good time to talk about what is

ectopic eruption. A The definition of ectopic eruption, that is, I

believe, generally accepted is a textbook definition. Bill Proffit is the author of the textbook; it is the leading textbook in orthodontic programs. It is required

reading for preparation for the American Board of Orthodontists' written exam, and that exam is required by all residents. is -Q And just to be clear, we are looking at R-50, The definition in Dr. Proffit's textbook

which is an expert of Professor Proffit's textbook? A Right. Ectopic eruption says occasionally

malposition of a permanent tooth bud before it erupts as it is developing -- it's called a tooth bud. Malposition

of the tooth bud can lead to eruption in the wrong place. This condition -Q A What does that mean, the wrong place? Well, it means -MR. HECTOR CANALES: I object to speculation It speaks

as to what Dr. Proffit means by wrong place. for itself. JUDGE SEITZMAN: Overruled.

You may answer.

ken@kenowen.com * www.kenowen.com 800.829.6936 * 512.472.0880

a34cb9f9-4092-4b01-a7ff-1635cabdc746

Page 144
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

The wrong place means, in simple terms, you are

not going into your own house, you are next door, you are two houses over, you are a street over. Ectopic eruption,

most people think of teeth and don't understand it, but a lot of people understand what ectopic pregnancy is. a pregnancy outside the uterus; it's not inside the uterus. It can be a number of different places outside It's

the uterus, so it is not one spot outside the uterus, but it's outside nonetheless. Ectopic eruption in the wrong place means it's outside of the place where it was planning to go. Now, what Dr. Proffit says is this eruption most often occurs -- most likely occurs in the upper first molar. for Texas Medicaid, we don't score those. does occur in the upper first molar. Q A Q (BY MR. HARGOVE) Yes. And in your capacity as director of the ABO, you You know Dr. Proffit? So

Most often, it

visit dental schools? A Q That's correct. And in that capacity, are dental students taught

about what ectopic eruption is? A Absolutely. This textbook -- the first edition That

of this textbook was 1987 and I was a resident. definition has not changed since 1987.

It's been exactly

ken@kenowen.com * www.kenowen.com 800.829.6936 * 512.472.0880

a34cb9f9-4092-4b01-a7ff-1635cabdc746

Page 145
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

the same.

In his latest -- his latest is the fifth

edition that just came out, they have additional examples of ectopic eruption. not changed. Q A Read this line here. He says in the previous paragraph that ectopic But the definition that he uses has

eruption most often occurs in the first molars, and the research supports that. But he says, ectopic eruption of In

other teeth is rare, but can result in transposition.

other words, an even worse case of ectopic eruption is the tooth erupts in some wild position. a house over; it's way over. And so -- but otherwise, ectopic eruption of other teeth besides the first molar is rare. photograph down here I want to show you. examples of ectopic eruption. to go here. There is a As I said, more than

These are some

These teeth were designed

They have erupted underneath the lower molars

moving this direction. Here is one that did that, erupted underneath the lower molars. This is the jaw joint. This

is where the lower jaw meets the skull, this is in forward of that, and attempting to erupt outside of the jaw into what would be a very dangerous area, actually. medically compromising. This is another example of ectopic eruption. These are

ken@kenowen.com * www.kenowen.com 800.829.6936 * 512.472.0880

a34cb9f9-4092-4b01-a7ff-1635cabdc746

Page 146
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

It is an upper canine that's erupting.

This is the spot

where it belongs and it's erupting over to the side. Those are examples of ectopic eruption. In

some cases, they cause medical issues; they erupt into the sinus, they erupt into -- basically, into the floor of the nose, they can erupt out through the side of the face, they can erupt into the chin and go all the way around. Those are ectopic teeth. MR. HARGROVE: R-48 and R-37 at 79. Q (BY MR. HARGROVE) What I want to do is talk Okay. If you would pull up

about how to score an HLD score sheet, which you do at Baylor -JUDGE EGAN: can barely hear you. MR. HARGOVE: Q (BY MR. HARGOVE) Sorry, Judge. What I would like to do is talk You will need to speak up, I

about how to score an HLD score sheet, which you have done at Baylor, correct? A Q Yes. And here is the -- in the definition, it cites

how to score -- the instructions on how to score the HLD score sheet, correct? A Yeah. We can -- this is a photograph of how the But basically, it is --

first one, overjet, is scored.

ken@kenowen.com * www.kenowen.com 800.829.6936 * 512.472.0880

a34cb9f9-4092-4b01-a7ff-1635cabdc746

Page 147
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

this is a Boley Gauge, if you ever wanted to know what that looked like, that is what it looks like. Q A So we are talking about overjet? This is overjet. And when Dr. Altenhoff was

using her hands, what she was trying to depict is the upper teeth extending over the lower. measuring that distance. Now, it is a linear measurement, but that measurement could vary depending on where I put the ruler. And I don't think anyone is arguing, at this point, that it's one millimeter off one way or the other. Q A What about overbite? Overbite, as you can see here, they are using a And you are

pencil to mark how far down -- again, Dr. Altenhoff's visual. How far down the upper teeth extend over the As Dr.

lower teeth, they mark that and measure it.

Altenhoff said, for overjet, you subtract two points from your total; for overbite, you subtract three. Go to mandibular protrusion. This is a

measure, where they marked on the pencil, this is a measure of the overbite. Again, it's a linear

measurement; it's pretty objective, but it's not 100 percent objective because the width of the pencil could be eight-tenths of a millimeter. But it is pretty close. This is,

Go back to mandibular protrusion.

ken@kenowen.com * www.kenowen.com 800.829.6936 * 512.472.0880

a34cb9f9-4092-4b01-a7ff-1635cabdc746

Page 148
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

as Dr. Altenhoff talked about, the lower teeth being ahead or out in front, the bulldog that she mentioned. Again,

this is just a measure of how far the greatest amount that this extends beyond the upper. Open bite is this, it's a measure of this. As you can see, not all these teeth are open. I think in

order to be reasonable and fair, you score the greatest amount of open bite. No, don't show that. Ectopic eruption, I We have

will talk more about that in a little bit. already heard some about it.

And I think that Mr. Canales

is right, that all of this hinges on what ectopic eruption is or isn't. And unless you would like me to clarify, I'm

just trying to get through to -- as long as you are understanding where I'm going or what this is, I don't want to keep repeating what Dr. Altenhoff was already saying. Q Okay. Let's take a look at some patient files Doctor, let me And starting with Which image

that were produced by Antoine, P-1. identify this exhibit, this is R-53.

this, can you make this image even bigger?

would you like to use to describe ectopic eruption? A This one. I can point, too. This is an example

of ectopic eruption.

This tooth that's erupted here and

laying over a back tooth, this tooth belongs right here.

ken@kenowen.com * www.kenowen.com 800.829.6936 * 512.472.0880

a34cb9f9-4092-4b01-a7ff-1635cabdc746

Page 149
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

This is the same thing; this tooth that's laying over that back tooth on top of it, it belongs right here. So that

is an example of ectopic eruption, from the literature, from the lower lateral incisors. MR. HARGROVE: imagine. Q A (BY MR. HARGROVE) And this is R-31-A. Okay. Pull up the next

This is an example of an ectopic canine; it

belongs here on the lower left-side and it is erupting into the floor of the mouth, underneath the tongue. This

is an ectopic upper left canine that's erupted outside of the arch, and is almost transposed almost beyond this tooth. And this one is the upper right canine that is erupting towards the roof of the mouth. examples of ectopic teeth. This is another example using an x-ray. This is a canine that is supposed to be right here, and it's erupted towards the midline, towards the roof of the mouth, and basically has caused these teeth, the roots, to completely dissolve. eruption. That is another example of ectopic Those are

This is a different view of the same thing, a

little bit different direction, and you can see it's headed right down -- and of course, when you look in the mouth, you don't see that, but on the x-ray, you see it's

ken@kenowen.com * www.kenowen.com 800.829.6936 * 512.472.0880

a34cb9f9-4092-4b01-a7ff-1635cabdc746

Page 150
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

coming right down that permanent incisor. This is what it looks like in the mouth. Ultimately, this permanent tooth was completely dissolved. The ectopic tooth, which again, belongs over here, and these are very difficult, if not impossible, to switch. It was brought down because that tooth was lost into that position. That's an ectopic eruption. MR. HECTOR CANALES: looking at? MR. HARGOVE: Q (BY MR. HARGOVE) R-31. This is R-31-L again. What are What exhibit are we

we looking at here, Doctor? A This is an example of an ectopic, upper left,

central incisor, the midline is right here, that is the right central and the right lateral, and this is an ectopic, upper left, central incisor that is coming straight out towards the lip. This has been surgically This is what we

exposed and this is ectopic eruption.

teach and this is why we teach it, because as orthodontists, we are the last line of defense for this. We are charged with correcting these problems. Q Let's -- you have done some research into -- you

talked earlier about the prevalence of ectopic eruption. You said the first molar is the first tooth to come out. Will you tell the Judges about the prevalence, based upon

ken@kenowen.com * www.kenowen.com 800.829.6936 * 512.472.0880

a34cb9f9-4092-4b01-a7ff-1635cabdc746

Page 151
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

your research and survey of the literature, about the prevalence of ectopic teeth? MR. HECTOR CANALES: I object to this point.

It's outside the scope of the witness' report that was provided in this case. He has already testified he was to I think he's gone

score the HLD score and that's it.

beyond what he was designated to testify in this case. JUDGE SEITZMAN: Well, he's an expert, I'm I'm sure

going to give him some leeway in explaining.

this has something to do with the way he scored it, so I will allow it. Overruled. Q (BY MR. HARGOVE) Is this R-51? Okay. Go ahead

and talk. A The whole thing to me is bizarre because the

definition as I learned it -- what ectopic eruption was when I learned it and has been every week or month or whenever I discussed it, has been the same, hasn't changed. So -- but -MR. HECTOR CANALES: Your Honor, I'm sorry

to keep interrupting, but our exhibits don't go up past, what, 46, and we now have something up there labeled R-51. MR. KHAROD: That's an article he made We may have

reference as part of his literature review. jumped the gun on putting it up there.

ken@kenowen.com * www.kenowen.com 800.829.6936 * 512.472.0880

a34cb9f9-4092-4b01-a7ff-1635cabdc746

Page 152
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

(BY MR. HARGOVE)

So just describe what your

survey of the literature shows and we will talk about these articles. A I did a search of PubMed, that's what we do when

we are looking up -- the issue is we are either evidence-based or we are just simply opinion-based. believe we are a profession that is evidence-based. did a search of PubMed. I So I

PubMed is 80 countries, it's a

government-run search engine, 80 countries, about 4,500 journals. PubMed returned and I searched for ectopic

eruption in any field in the article, so that is title, citation, abstract, keywords and anywhere in the body, basically, anywhere for the phrase. You can do this with Google. actually gave good instructions. Google. Dr. Altenhoff

You can search it on

You can use Google Scholar, which limits it to

research articles, and you can get anything and everything you want on ectopic eruption. If you search Google and If you

put in ectopic eruption, you get about 9,800 hits.

limit it to the exact phrase, it comes down to a little over 200 or 300 hits. But through PubMed, that's what we do at the school and we can manage the citations better. I returned

about 1,300 articles, some of those are in foreign languages I can't look at.

ken@kenowen.com * www.kenowen.com 800.829.6936 * 512.472.0880

a34cb9f9-4092-4b01-a7ff-1635cabdc746

Page 153
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

The bottom line is this, there are no references to teeth that are rotated or tipped. There

are -- ectopic eruption in every article is a tooth that is away from, it is out of place, it is in the wrong place. of them. Not most of them, many of -- not most of them, all Many of the articles, many of these take

ectopic -- and I'm sure this is the way it is in law. There's evidence on both sides. There's give and take and

maybe a preponderance of the evidence, and we have that in some medical issues. But this is overwhelming. been. It has always

The earliest reference I can find was 1938, but it

referenced other people talking about ectopic eruption. And the earliest references where of the molar as Dr. Proffit talked about. Those references continued, as well If you take and

as the canine erupting off to the side.

do a search of ectopic eruption in PubMed with only the title or the abstract or the keywords, so just limiting it to a research article or paper that is focusing on some aspect of ectopic eruption, you get a little over 100 articles. Of those, half are referring to ectopic molars. Of the other half, half of those are talking

about ectopic canines, the -- Tooth Number 3. The remainder of that, so 25 percent of the

ken@kenowen.com * www.kenowen.com 800.829.6936 * 512.472.0880

a34cb9f9-4092-4b01-a7ff-1635cabdc746

Page 154
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

total sample, are all the other teeth; ectopic lower molars, ectopic lower wisdom teeth, ectopic lower lateral incisors that you saw. Those are the others. But in

every case, they are teeth that are out of the position, they are not here in turn; they are out, they are somewhere else. That's the definition of ectopic eruption that existed that started in 1938 or somewhere before then. It has existed in its same form since then, up to

'87 when Dr. Proffit wrote its eruption in the wrong place, and that definition has not changed. Q Now, if you could bring up the article in your

survey of the literature, you came across this Thilander Article, correct? MR. HARGROVE: will offer shortly. Q (BY MR. HARGROVE) Tell us what this Thilander This would be R-51, which we

article is about. A Q A Okay. So --

Go to the title first. The search included articles that were

epidemiological studies, so studies of the incidents of dental problems. Ectopic eruption is classified under,

and in most textbooks, it's under the term "dental anomalies" or "dental problems."

ken@kenowen.com * www.kenowen.com 800.829.6936 * 512.472.0880

a34cb9f9-4092-4b01-a7ff-1635cabdc746

Page 155
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

So ectopic eruption is an eruption problem; it's an eruption event. So not all epidemiological

studies are looking for -- to classify ectopic eruption. This is -- there are some that are very good, this is one of the best ones. Birgit Thilander is actually from Sweden. This study was done on kids in Columbia, 4,724 children. So it's not a small sample; it's a large sample. actually have a chart that shows it better. JUDGE SEITZMAN: Before we get into talking And I

about the details of this exhibit, I don't want to talk about something that is not in evidence, so is this being offered simply to show that this formed a portion of the basis for his opinion or is it being offered for the truth of the matter? MR. HARGOVE: It is one basis of his

opinion, Your Honor, so not for the truth of the matter. MR. HECTOR CANALES: Honor. We would object, Your

It is not offered for the truth of the matter, it

is hearsay, Your Honor. JUDGE SEITZMAN: It's not being offered for

the truth of the matter, so there is no hearsay objection. It's being offered to show a basis in part for the expert's opinion. MR. HECTOR CANALES: We would still object

ken@kenowen.com * www.kenowen.com 800.829.6936 * 512.472.0880

a34cb9f9-4092-4b01-a7ff-1635cabdc746

Page 156
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

under those grounds, Your Honor. JUDGE SEITZMAN: Objection is overruled.

It's admitted, but for the limited purpose. (Respondent's Exhibit Number 51 admitted.) Q (BY MR. HARGOVE) So again, let's focus here.

You are talking about the prevalence of ectopic teeth. A Well, the first thing is the prevalence of how Our teeth -- normally --

our teeth normally are straight.

do teeth normally erupt in a straight position or do teeth erupt crooked? And the epidemiological studies -Your Honor, this

MR. HECTOR CANALES: testimony is for the truth.

They may have offered it

under the guise of this, but the testimony here, he's directly trying to say that what the report says is what occurs. It's irrelevant to the -- it's undisputed in this

case that it is the definition and that the manual controls. Dr. Altenhoff has already testified to that. We are now going outside of that and since it's undisputed that it is the manual's definition that controls, this entire testimony and the use of this study is irrelevant, and it is being offered for the truth of the matter despite their representation that it isn't. JUDGE SEITZMAN: It's overruled. It goes to

the weight of the expert's testimony that's being offered, not for the truth of the matter. He's simply telling us,

ken@kenowen.com * www.kenowen.com 800.829.6936 * 512.472.0880

a34cb9f9-4092-4b01-a7ff-1635cabdc746

Page 157
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

to my understanding, why he formed the opinions that he did and that he relied in part on this in forming his opinions. And if the definition is different than the

manual's, it goes to the weight of his testimony. You may proceed. THE WITNESS: A Okay. Thank you.

So this is in -- this is a literature

review that Dr. Thilander used in the purpose of setting up her study. This is the percentage of malocclusion's Over here

prevalence in terms of percent of malocclusion.

are the percentages of malocclusion based on different population samples. So it is 79 percent, 83 percent, 82 percent, basically a large percentage of patients have crooked teeth. They are not hideously crooked, these are just

measures of, do teeth erupt straight, do teeth erupt in an ideal position, and the answer to that is no. Q (BY MR. HARGOVE) So the normal condition of a

tooth is what? A Well, the teeth do not usually erupt straight.

Teeth usually -- talking about a population sample, teeth are usually not straight, there is some degree. Now, it

varies between mild, moderate and severe, but a very small percentage of patients erupt with ideally straight teeth. Q Okay. Can you talk about the -- does this

ken@kenowen.com * www.kenowen.com 800.829.6936 * 512.472.0880

a34cb9f9-4092-4b01-a7ff-1635cabdc746

Page 158
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

article discuss the prevalence of ectopic teeth? A It does, but it is going to be easier to find in

my chart. MR. HARGOVE: Judge, to be more efficient,

if we could have a five-minute break, so we can cue up some records as opposed to searching through them. just take a quick break in place. JUDGE SEITZMAN: All right. Is there We can

anything else you can cover with this witness while that is being cued up? MR. HARGOVE: Let's go to P-1, Case Number

1, which was offered by Antoine. Q (BY MR. HARGOVE) What I would like you to do is

tell us about what your -- you reviewed this patient file, correct? A Yes, I did review this. They scored -- we showed I

this earlier, they scored eight front teeth ectopic. scored no front teeth ectopic. is near perfect.

This patient's occlusion

There are some mild rotations in the

front, but in terms of how the back teeth fit, this -- I mean, the teeth are close enough to straight that it might qualify as passing the certification process from the American Board of Orthodontists. scored ectopic. Q Just to be clear, we are looking at P-1, and this There is nothing there I

ken@kenowen.com * www.kenowen.com 800.829.6936 * 512.472.0880

a34cb9f9-4092-4b01-a7ff-1635cabdc746

Page 159
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

is the pre -- this is the photograph that was submitted to TMHP by Antoine requesting braces, correct? A Q Yes. And in your opinion, Dr. Tadlock, are the teeth

in question, do those qualify as ectopically erupted teeth? A Q No. And in your opinion, based upon your

observations, does that young man have a severe handicapping malocclusion? A Q No. And in your opinion, Doctor, is he dysfunctional

with his oral health? A Well, based on the photographs I am looking at

and the type of occlusion, there are other issues related to dysfunction, but no, I don't no see any dysfunction there. Q What was the final score that Antoine scored on

this young man? A Q 26 total; 24 on ectopic teeth. Okay. Would you like to see other records in

that case file? A Q No. Please cue up P-6. Again, another record Again, this is another

produced by Antoine Dental.

ken@kenowen.com * www.kenowen.com 800.829.6936 * 512.472.0880

a34cb9f9-4092-4b01-a7ff-1635cabdc746

Page 160
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

photograph that Antoine submitted seeking authorization -prior authorization to do braces on the child. could bring up the HLD score sheet. A Again, same thing. They scored all eight If you

incisors; upper 1, 2 on both sides, and lower 1, 2 on both sides. Q A Let's make it bigger here. Tell us again.

The 1 and 2, both right and left, so there are

four upper incisors scored and the same for the lower. Four lower incisors, according to the note, were scored as ectopic. Q There are no teeth ectopic there. Is it your opinion, based upon the images,

whether this child had a severe handicapping malocclusion? A No, they did not have a severe handicapping

malocclusion. Q Is it your opinion that the score in there is a

misrepresentation of patient's true condition? A I think scoring these teeth as ectopic is a

misrepresentation of the condition of the patient. Q And would it be your opinion that that would be

false information as scored by Antoine? A true. It is certainly not true information. It is not

It would be false information that these are

ectopic, yes. Q Anything else?

ken@kenowen.com * www.kenowen.com 800.829.6936 * 512.472.0880

a34cb9f9-4092-4b01-a7ff-1635cabdc746

Page 161
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

Would you please bring up P-54, another -I'm sorry, 28. JUDGE EGAN: MR. HARGOVE: A Which exhibit, I'm sorry? P-28?

Again, the score that they scored was all four

upper incisors and all four lower incisors, total of eight for 24 points. Q (BY MR. HARGOVE) Do you have any opinion about

whether the teeth in question are ectopic eruption? A Q Those teeth are not ectopic. And based upon your review of the file, did this

child present with a severe handicapping malocclusion? A Q No. Based upon what you observed in the file in your

review, if Antoine had reported these teeth as ectopically erupted, in your opinion, would that be false? A Q A Q Yes. What is the true condition of those teeth? They are not ectopic. Okay. If you could bring up P-54. Walk us

through it again. A Here, the score is all 12 front teeth, possible

to score 1, 2, 3, so 1, 2, 3 there; 1, 2, 3 here; and then the same, 1, 2, 3; 1, 2, 3. ectopic. All 12 teeth were scored as

ken@kenowen.com * www.kenowen.com 800.829.6936 * 512.472.0880

a34cb9f9-4092-4b01-a7ff-1635cabdc746

Page 162
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

Q A Q

Is it true those teeth are ectopic? Those teeth are not ectopic. So as reported on the HLD- score sheet, would

that information be false or true? A That information would be false if they are

scored ectopic. Q ectopic? A They are not ectopic. They are not erupted in Why is that? Because those teeth are not

the wrong place. Q And based upon your review of the patient file,

did that patient present with a severe handicapping malocclusion? A Q No. P-57. All right, if you could tell us what you

observed, Dr. Tadlock. A The score -- Antoine score is, again, eight. And then four lower So

four upper incisors, 1, 2; 1, 2. incisors; 1, 2 and 1, 2. here, here and here. Q

So it's all of these teeth here,

And do you have an opinion about whether those

teeth are ectopically erupted? A Q They are not ectopic. And do you have an opinion about whether that

child suffers from a severe handicapping malocclusion?

ken@kenowen.com * www.kenowen.com 800.829.6936 * 512.472.0880

a34cb9f9-4092-4b01-a7ff-1635cabdc746

Page 163
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

I don't believe it suffers from a severe

handicapping malocclusion. Q If we could go to P-42. JUDGE SEITZMAN: to be corrected. MR. HARGOVE: Judge. We will take care of that, That's one that will need

Just to be clear, we are using Antoine's -JUDGE SEITZMAN: MS. SILHAN: MR. HARGROVE: JUDGE EGAN: MR. HARGOVE: I understand.

She is redacting. We need P-54. You said 42, I thought. 42, I'm sorry. Okay. Tell us what you observe

(BY MR. HARGOVE)

about this. A This one was difficult for me to tell exactly. It certainly is 1, 2

It appears that it's 1, 2; 1, 2. there.

This looks a little harder to see, but it appears It's a total of 24

to be 1, 2, it's right over these.

points, which means it's eight teeth that are scored. Now, the interesting thing is, I scored these two canines as ectopic and none of these as ectopic. And like the other measurements, there is a place in which some subjectivity comes into play. For example, if these

teeth were a little closer into the arch, would they be considered ectopic, how much difference does it have to

ken@kenowen.com * www.kenowen.com 800.829.6936 * 512.472.0880

a34cb9f9-4092-4b01-a7ff-1635cabdc746

Page 164
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

be.

Those are questions that I believe are harder to

answer, those are the areas of subjectivity in terms of scoring ectopic eruption. It's definitely out of the arch and pretty far out of the arch. And is it grossly? I don't know,

but I scored those as ectopic.

Antoine Dental did not

score those as ectopic, but scored those as ectopic. Q Is it your opinion that Teeth 1, 2; 1, 2, are, in

fact, truly ectopically erupted? A Q Those teeth are not ectopically erupted. Okay. And what about -- is it your opinion where

that child suffered -- even with correctly two ectopic teeth, if that child suffered from a severe handicapping malocclusion? A I want to correct it, but it is a cosmetic issue; But by what the State

probably has some functional issue.

uses in terms of the HLD index to determine handicapping malocclusion, in my opinion, it doesn't qualify. Q Okay. All right. We are not going to go through

every patient chart.

We have gone through those six, but,

Dr. Tadlock, you reviewed all 63 patient charts, correct? A Q Yes. We don't have time to go through all 63 patient

charts, but if you could just highlight this and tell us what this summary shows.

ken@kenowen.com * www.kenowen.com 800.829.6936 * 512.472.0880

a34cb9f9-4092-4b01-a7ff-1635cabdc746

Page 165
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

A Q A Q

This is -First of all, did you create this? Yes, I did. And what information -- where did the information

come for you to create this chart? A This is from Antoine's scores. These are their

ectopic scores on their HLD score sheets. Q As I understand, you took their score sheets and

you made a spreadsheet? A Q Yes, I did. Explain to us what the two columns are in yellow

and green. A The gray represents the midline so that it's 1, This separates

2, 3 teeth on either side of the midline. upper from lower.

So the opportunity to score ectopic

eruption can be in any one of these squares for any of the patients, a total of 12. This would be Patient 1. 12

total squares for each patient are possible.

These are

the scores over here; my scores and their scores. Q Scroll down. All right. So -Your Honor, at this

MR. HECTOR CANALES: point, I need to object.

There's a document that is being

used that is not in evidence and we would object to that, Your Honor. No proper predicate has been laid and I think

they are going to start looking at totals and summaries of

ken@kenowen.com * www.kenowen.com 800.829.6936 * 512.472.0880

a34cb9f9-4092-4b01-a7ff-1635cabdc746

Page 166
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

scores and patients, I assume, that -- of which no predicate or no evidence is in the record. JUDGE SEITZMAN: previously tendered? MR. HARGOVE: Judge, it's a summary under Has this document been

Rule of Evidence 1006 of the -- and the data comes from Antoine. It's a summary of voluminous data that Dr.

Tadlock has -- rather than go through patient by patient by patient, it's a summary that he charts how Antoine scored each of their patients with an ectopic tooth under 1006. It's just -- rather than go through all the patient

files, it's admissible for that purpose as a summary. JUDGE SEITZMAN: Well, I think one of the

issues that's being raised is it wasn't previously submitted. Are you tendering this for the truth of the

matter or what is its purpose? MR. HARGOVE: It's admissible under 1006,

Your Honor, as a summary of voluminous data. JUDGE SEITZMAN: But there was a time to

tender exhibits, that time has passed. MR. HARGOVE: May I have a moment, Judge? You may. Let's go off the

JUDGE SEITZMAN: record for a second. (Off the record.) JUDGE SEITZMAN:

We are back on the record

ken@kenowen.com * www.kenowen.com 800.829.6936 * 512.472.0880

a34cb9f9-4092-4b01-a7ff-1635cabdc746

Page 167
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

at six minutes after 3:00 and we had an off-the-record discussion. Let me see if I can summarize it and ask the

parties if that is their understanding and agreement. The chart that we were discussing before we went off the record is marked as R-49. It is my

understanding that it will be tendered and no objection to the document as tendered with the following changes to the document; that is, that everything below Row 63 of the chart will be excluded from the exhibit, with the exception of the footer, which identifies the document. Let me ask you, Mr. Canales, is that your agreement and understanding? MR. HECTOR CANALES: JUDGE SEITZMAN: Yes, it is.

Is that your agreement and

understanding, as well, Mr. Hargrove? MR. HARGOVE: It is, Judge. So R-49 as altered pursuant

JUDGE SEITZMAN:

to the agreement is admitted without objection. (Respondent's Exhibit Number 49 admitted.) JUDGE SEITZMAN: were in your direct. MR. HARGROVE: just oriented here. Q (BY MR. HARGOVE) First of all, I want to go a And tell us what this Thank you, Judge. Let me get I believe, Mr. Hargrove, we

little bit more into this chart.

ken@kenowen.com * www.kenowen.com 800.829.6936 * 512.472.0880

a34cb9f9-4092-4b01-a7ff-1635cabdc746

Page 168
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

column here is, which is highlighted Antoine HLD? A That is the column where I registered Antoine's

HLD score. Q A Q From the records provided to you? From the records provided, yes. And this column here, where it says, ectopic

scores, it's gray highlighted, what does that column show? A That was their score of ectopic eruption on their

HLD index. Q that? A Q A Q right? A Q Yes. Now, I noticed you have reviewed -- you had 63 Yes. That is my score on the HLD index. And then you have Tadlock HLD column, what is

And then, I guess, the ectopic score is? My score. So ectopic is a subset of the total HLD score,

patients to review, but you only scored or tallied up 59; why is that? A Those -- the ones that are grayed out were ones

that did not have an HLD score sheet provided by the provider. There was no -- they did not have an HLD score

sheet in the chart. Q So, for example, this would be Patient Number 10?

ken@kenowen.com * www.kenowen.com 800.829.6936 * 512.472.0880

a34cb9f9-4092-4b01-a7ff-1635cabdc746

Page 169
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

A Q

Correct. So Patient 10 has no HLD score sheet in Antoine's

file for you to score? A Q right? A Q A Q Yes. And then same thing with 44, 51 and 53, correct? Yes, that is correct. So that's why it is gray, because there was no Scroll down Correct. And again, you were using Antoine's records,

score sheet that you had in which to score. more.

And we're talking about upper and lower here, correct? A Q Yes. And 1, 1, 1 means that they marked it. So of the

59 patients that you had HLD score sheets, how many did Antoine score as being ectopically erupted? A 100 percent of the patients were scored on the

upper right central incisor. Q So 100 percent of their patients, they calculated

or they scored as having an ectopically erupted tooth? A Q Yes. And what about this tooth, which would have been

the other incisors?

ken@kenowen.com * www.kenowen.com 800.829.6936 * 512.472.0880

a34cb9f9-4092-4b01-a7ff-1635cabdc746

Page 170
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

It was actually one -- one they didn't score, but

two percent less, so 98 percent. Q And then going to the next tooth over on the

left, what is the name of that tooth? A Q That's the upper right lateral incisor. And it's the number -- it's in the place marked 2 What was the percentage that Antoine

for HLD scoring.

scored for their patients? A percent. Q A Q A Q And what about the other tooth on the other side? Exact same score for that one, as well. And then on the -- would this be the canine? Yes. And what's the percentage of how they scored They scored 58 out of the 59 patients, or 98

their patients? A That's the upper right canine or Tooth Number 3

on the right side, and they scored it 23 times, or 39 percent. Q A percent. Q And then lower, we have the numbers here, so So the lower 3 place? And what about the other canine? The upper left canine was scored 20 times, or 34

let's go here. A

The lower right canine was scored 20 times for 34

ken@kenowen.com * www.kenowen.com 800.829.6936 * 512.472.0880

a34cb9f9-4092-4b01-a7ff-1635cabdc746

Page 171
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

percent; the lower right lateral incisor, 53 times for 90 percent; the lower right central incisor, 55 times for 93 percent; the lower left central incisor, 55 times for 93 percent; the lower left lateral incisor, 54 times, 92 percent; and the lower left canine, 20 times for 34 percent. Q A And then your conclusion is what? Of all the patients they scored with some amount

of ectopic eruption, I believe the lowest one is 12 points or four teeth for ectopic eruption. Q And you had -- of the total 708 teeth that could

be scored, they scored 533 teeth as being ectopically erupted, correct? A score. Q And how does that compare from what you have And let's talk about the Yes, 75 percent of the total possible teeth to

observed in your practice? literature. A Q Can you use that? Yes.

So I have put up on the screen for you

R-54, this is a summary that you have done of the literature, correct? A What is this, Dr. Tadlock?

This is just a summary of some epidemiological

studies that were within the original search that -within my original search. And in all of these are

ken@kenowen.com * www.kenowen.com 800.829.6936 * 512.472.0880

a34cb9f9-4092-4b01-a7ff-1635cabdc746

Page 172
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

studies with the exception of Dr. Proffit's textbook, which I put -- listed here. And these are serious

epidemiological studies with large population samples. This one, the second one, is Peter Buschang. I work with Peter every Thursday, he's a Ph.D. anthropologist. He is -- well, he's done a number of The sample size was

these; he has over 250 publications. over 9,000 patients.

They evaluated the -- the only thing

they really were looking at was what is called irregularity of teeth; are teeth straight or are they irregular. Now, in this measurement, they weren't just measuring rotation. each other. They were also measuring position to

They were not measuring ectopic teeth, but in

this -- in their study, they found that 83 percent of the patients had some degree of rotated or tipped or malpositioned. teeth basically. The term is irregularity, but irregular So the percentages -- if you look in

dental anomalies, for example, the percentages of dental anomalies, just like the other chart in Thilander Study, which was here, that other chart had percentages of malocclusion. This is dental anomalies; missing teeth is Ectopic

one example, missing enamel is another example. eruption is an example of a dental anomaly.

In the sample, 1,000 here, 92 percent had

ken@kenowen.com * www.kenowen.com 800.829.6936 * 512.472.0880

a34cb9f9-4092-4b01-a7ff-1635cabdc746

Page 173
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

some level of dental anomaly.

But when they looked at -Bite problems,

and then crowding, about 50 percent. anywhere from 19 to 40 percent.

But when they looked at

ectopic eruption, in relationship to all the other things, ectopic eruption is six percent, nine percent, 1.5 percent in Thilander Study. Bill Proffit says that it's rare. And this

study -- by the way, these are populations around the world. This study was transposed teeth -- those are teeth

that move over and around another tooth -- .4 percent is the reported number for teeth that are transposed. is consistent. This

This is consistent with all the literature

that exists on ectopic eruption. Q Let me ask you a question: For the purposes of

scoring on the HLD score sheet, we only look at anterior teeth, the front teeth, correct? A Q Yes. So those percentages, do they include just

anterior tooth or all teeth? A They include all teeth. Remember, that the Half of

sample is that half those teeth are back teeth. the ectopic number will be ectopic molars.

So it's

reasonable to cut that number in half, to only talk about anterior teeth. Q I believe you testified earlier that the most

ken@kenowen.com * www.kenowen.com 800.829.6936 * 512.472.0880

a34cb9f9-4092-4b01-a7ff-1635cabdc746

Page 174
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

common ectopic tooth would be the first molar? A The first molar is the most common. The second

one is the canines, upper canines, first; lower canines and lateral, second. But the upper first molar and the

upper canines are the most common, by far. Q So when you compare Antoine's data and how they

scored their patients as having ectopically erupted teeth to which you have observed in your own practice at Baylor and the literature, what is your conclusion? A Well, my conclusion is that it's incomprehensible

for me to see how you could have scored ectopic eruption on 100 percent of the patients, 75 percent of the available teeth. One of the things that's not in here, in

reports that look at multiple anomalies for the same patient -- say, an ectopic eruption or missing teeth, congenitally missing, the chance of having the other one on the opposite side or bilateral or even two anomalies, that chance is infinitesimally smaller. And yet, in Antoine's patients, all of his patients have bilateral or multiple ectopic teeth. Q What is the probability of a patient having

multiple ectopic teeth? A Q A That many, less than one percent. Okay. I want to go back to Baylor -That many on that

Let me rephrase that.

ken@kenowen.com * www.kenowen.com 800.829.6936 * 512.472.0880

a34cb9f9-4092-4b01-a7ff-1635cabdc746

Page 175
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

patient's sample, zero. Q Okay.

It's not possible.

I want to talk about your work at Baylor.

I think you testified you attempted to qualify for Medicaid braces in approximately 700 patients that presented at Baylor; is that about right? A Yes. Now, you can't attribute all 700 to me. In

fact, Phil Campbell has done more of those exams than I have, and in most cases, when I've been involved in the exam, there have been multiple doctors or multiple people, even residents involved in screening Medicaid patients. Q And of that large patient population, how many

did you all score as qualifying for braces under the Texas Medicaid? A I would say we have qualified probably 25, 26

patients, somewhere in there. Q A Q Out of 700, approximately? Out of 700, yes. And those patients that you determined didn't

meet the qualifications or the eligibility, did you submit them for requests for prior authorization? A Only some of them. I mean, you are not supposed If you determine

to submit just every single patient.

they don't meet the HLD score, then -- and they are not even close, you don't submit them. Q So you did not submit patients who did not

ken@kenowen.com * www.kenowen.com 800.829.6936 * 512.472.0880

a34cb9f9-4092-4b01-a7ff-1635cabdc746

Page 176
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

qualify? A I would say most we did not submit. Some were

and some were rejected. Q One other matter, do teeth -- what's a normal

state of a tooth to be, slightly rotated, turned or to be straight? A No, no. As the studies show, only about seven or

eight percent of the patients have ideally straight teeth, and everything else from there is crooked to a degree. Q And in your review of the literature and in your

experience, has a twisted tooth or rotated tooth ever been called an ectopic tooth? A Q Not ever. Do you have an opinion about whether Antoine

misrepresented the true score on an HLD score sheet of their patients that you reviewed? A I certainly think the ectopic eruption score was

misrepresented from what ectopic eruption is. Q A Q And do you believe that score to be false? I believe the score is false, yes. And what is your opinion about whether this

population in Houston has bilateral ectopic teeth? A Q It's not possible. And what is your opinion about whether Antoine

Dental, the patient files you reviewed, what is your

ken@kenowen.com * www.kenowen.com 800.829.6936 * 512.472.0880

a34cb9f9-4092-4b01-a7ff-1635cabdc746

Page 177
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

opinion about whether Antoine misrepresented whether the children in question had a severe handicapping malocclusion? A I think in every case, it was the ectopic

eruption score that put them over -- well, not in every case. I scored one of the patients as needing the 26.

But it was their score of ectopic teeth that put all of those patients over the 26. Q And do you have an opinion whether Antoine

misrepresented on prior authorizations, whether their 63 patients in question have a severe handicapping malocclusion according to the HLD score sheet scoring system? A I think clearly by virtue of picking the teeth

and scoring those as ectopic, they misrepresented the HLD score. Q A What did you observe about the pattern? I think the upper and lower incisors were scored I would have to look back at the

on almost every patient.

numbers to see, but the pattern was that upper and lower -- the four teeth upper incisors and the four teeth lower incisors were basically scored on almost every patient. MR. HARGOVE: to confer. JUDGE SEITZMAN: You may. If I may have, Judge, a moment

ken@kenowen.com * www.kenowen.com 800.829.6936 * 512.472.0880

a34cb9f9-4092-4b01-a7ff-1635cabdc746

Page 178
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

MR. HARGOVE: Judge.

We will pass the witness,

JUDGE SEITZMAN:

Mr. Canales?

CROSS-EXAMINATION BY MR. HECTOR CANALES: Q Canales. A Q Good afternoon, Dr. Tadlock. My name is Hector

We have never met before today, right? Correct. You and I have not had an opportunity to discuss

the Antoine Dental case, right? A Q Right. But on April 19th, you did give a deposition in

this case, right? A Q Yes. Have you had an opportunity, sir, since giving

your deposition to review your testimony in that case? A Q I have had an opportunity, but I did not take it. And you understand that that testimony in your

deposition was also under oath as your testimony here today? A Q Yes. Thank you very much. Now, your interpretation of

ectopic eruption does not include a rotated or slanted tooth, correct? A If the ectopic tooth is rotated, and many of them

ken@kenowen.com * www.kenowen.com 800.829.6936 * 512.472.0880

a34cb9f9-4092-4b01-a7ff-1635cabdc746

Page 179
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

are, then it is ectopic, but it is not ectopic because it's rotated. Q That's right. So essentially, that is if the

tooth is on the ridge, on the alveolar ridge, and it is rotated, your methodology and the opinions that you reached in this case does not include or characterize that as ectopic eruption, correct? A Q Never been written up in the literature. Now, that's right, your opinion is ectopic

eruption does not include teeth that are rotated or slanted and on the ridge, right? A No. So, for example, I showed an example of

lower lateral incisors, they were rotated with the facial surface of the tooth pointed straight up; they were leaning backwards over the first premolar; they were on the ridge. Q A But they were ectopic.

Those were molars, though, right? No, those were lower laterals. They would be

scored on the HLD index. Q Regardless, you agree, sir, that the first time

that -- the first time Medicaid and the provider manual discussed the inclusion or exclusion of rotated teeth within the definition of ectopic eruption was in the 2012 rendition of the definition, correct? MR. HARGOVE: I apologize for objecting,

ken@kenowen.com * www.kenowen.com 800.829.6936 * 512.472.0880

a34cb9f9-4092-4b01-a7ff-1635cabdc746

Page 180
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

Your Honor, but that is a mischaracterization.

Dr. It's an

Altenhoff was clear that that's not a definition. instruction on how to score. JUDGE SEITZMAN: He's an expert. He's

capable of answering the question without being instructed how to answer it. A I believe that's right; however, it is

characterized clarification or definition, excluding rotating teeth was in 2012. MR. HECTOR CANALES: P-81. Q (BY MR. HECTOR CANALES) If I could draw your This is the instruction If you would, put up

attention to the screen, sir.

that is contained within the May/June 2012 Medicaid bulletin. A Q Are you familiar with that?

I have seen it before, yes. And the highlighted section, you would agree,

sir, was not present in the provider manual prior to 2012, right? A Q I believe you are right. And in all the cases that you reviewed, the 63

cases you reviewed, you will agree, sir, that it is the prior language, the prior editions, the 2011 and earlier editions, that apply, correct? A I agree.

ken@kenowen.com * www.kenowen.com 800.829.6936 * 512.472.0880

a34cb9f9-4092-4b01-a7ff-1635cabdc746

Page 181
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

And I take it from your earlier testimony in this

subject matter here, that you think highly of Mr. Buschang; is that who you said you worked with closely, you talk to every day, Mr. -A Q A Q I see him every Thursday. And you think highly of him? Yeah, sure. Okay. And according to Mr. Buschang, he did a

study on the United States -- population of the United States and he found that 83 percent of the population had rotated teeth, right? A Q A Yes. And that's pretty high, right? It wasn't rotated. The term is irregular. The

index used is Little's Irregularity Index, which is not necessarily a measure of rotation. It is under-rotated If I put And I

for the simple purpose of keeping it simple.

irregularity in there, it's a little bit different. explained that when I went over it. Q A Q I understand. Yes. But you wrote rotated, right?

And I explained it different.

So it says here, the prevalence of cooked teeth

or malocclusion, that's what you were trying to -- the message that you were trying to deliver here to the Court was, the percentage of -- or prevalence of malocclusion,

ken@kenowen.com * www.kenowen.com 800.829.6936 * 512.472.0880

a34cb9f9-4092-4b01-a7ff-1635cabdc746

Page 182
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

right? A Q Yes. And within that, rotated teeth are under the

heading of malocclusion, right, according to your little summary here? A Q That's the title of it all, yes. All right. But -- yeah.

Sir, when you reached -- did you

reach all of these opinions that you have had in this case after April 4th of 2012? A Q No, absolutely not. Did you review any of the 63 patient files in

this case prior to April 4th, 2012? A Did I review the patient files? I reviewed them

prior to our deposition, yes. Q 2013? A I'm sorry, no. I'm sorry, you are right. I did Right. And your deposition was in this year, of

that on my deposition, I apologize. records prior to 2012. Q That's right.

No, I didn't review

So HHS-OIG, the lawyers here in

front of you represent them, they did not have the benefit of your opinions when they issued the notice of payment hold on April 4th, 2012, correct? A Q Correct. Because you -- I mean, you testified in a

ken@kenowen.com * www.kenowen.com 800.829.6936 * 512.472.0880

a34cb9f9-4092-4b01-a7ff-1635cabdc746

Page 183
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

deposition, but you didn't even get hired until over a month later, right? A Q A Q Correct. In May? Yes. Checking dates, yes. Yes, correct.

In fact, the report that you wrote in this

particular case, you didn't write your report until February 20th of 2013, correct? A Q That is correct. And in your findings, 62 out of the 63 patients

of the files that you reviewed, you scored below 26, right? A Q I did. And it is true, is it not, that -- but regardless

of the fact that you scored all but one below 26, isn't it true, sir, that more than one qualified for treatment under the Medicaid program? A There were two for sure that were filed under

interceptive treatment, that would have been under interceptive treatment, and that was some assumptions which turned out to be bad, I admit that. But -- so those

two, and I would have to leave the remainder ones that had crossbites up to HHS to determine whether those were filed for crossbite treatment or not. Q All right. Well, there's a lot in that answer.

ken@kenowen.com * www.kenowen.com 800.829.6936 * 512.472.0880

a34cb9f9-4092-4b01-a7ff-1635cabdc746

Page 184
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

Let me break that down.

What you are referring to is, you

made in your deposition a month or so ago, you conceded that you made numerous errors or mistakes in your scoring of these 63 patients, correct? A I would say the error was in lower -- crowding,

excuse me -- that error was for some patients and it was one point. And I would be glad to talk about that. The

other errors of crossbite, I don't believe are errors if -- as I understood it, and as I was handed the records, they were filed as 8080, which is comprehensive treatment and require an HLD score sheet. Q That's what I did.

Do you recall, sir, in your deposition just over

a month ago that there were 17 cases where you either made an error of scoring or you withdrew your opinion, that those particular cases didn't qualify under Medicaid? A I was presented by the person giving me the

deposition in saying that -- in implying that, and I responded that the patients, if they were filed for crossbite therapy, then they may qualify for crossbite therapy. I didn't concede that they would qualify for

comprehensive treatment based on the crossbite. Q Sir, 17 out of -- 17 mistakes out of 63 files,

that's roughly 25 percent, right? A Again, pull the crossbite patients out. The only

ones you can talk about are the ones that are -- the

ken@kenowen.com * www.kenowen.com 800.829.6936 * 512.472.0880

a34cb9f9-4092-4b01-a7ff-1635cabdc746

Page 185
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

crowding numbers, and that's one point for each patient. JUDGE SEITZMAN: Doctor, you need to answer

the question asked, otherwise, you are going to be here until tomorrow afternoon. Q (BY MR. HECTOR CANALES) 17 out of 63 is roughly

a 25 percent error rate, right? A Again, the 17 is your number, so if you want to

do the math with that, then okay. Q Now, you mentioned just a few terms to give the You mentioned a

Court a little bit of background here. term of crossbite.

It's true, is it not, that crossbite

is an exception to the requirement to have 26 points in order to qualify for Medicaid treatment? A Q A Q Qualified for crossbite therapy. So it's an exception, correct? Not for comprehensive treatment. But an exception, nonetheless, within the

program, correct? A Q Okay, yes. And another example of an exception to the 26

points is interceptive treatment; is that correct? A Q Correct. And just briefly, could you describe what is

interceptive treatment? A Interceptive treatment is on kids that still have

ken@kenowen.com * www.kenowen.com 800.829.6936 * 512.472.0880

a34cb9f9-4092-4b01-a7ff-1635cabdc746

Page 186
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

some level of baby teeth, and the idea is to intercept problems before they are -- before they cause greater problems. Q And are there any other exceptions that you are

aware of? A Q others? A Q A Q Trauma. Any others? Not that I can think of right now. And you testified -- you testified in your Cleft palate. So we have identified three. Are there any

deposition that you should have included and looked for those exceptions as part of your review of the 63, correct? A I believe that the record shows that the

crossbite patients were filed as 8080, so I would not have given crossbite exception. They were filed as 8080 as

comprehensive treatment, so I would have scored the HLD score sheet. The two interceptive cases would have not

been included in the score. Q Sir, my question to you was: As part of your --

as part of what you were hired to do in scoring these patients, you should have looked at the exceptions that were part of the scoring process, right?

ken@kenowen.com * www.kenowen.com 800.829.6936 * 512.472.0880

a34cb9f9-4092-4b01-a7ff-1635cabdc746

Page 187
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

A Q A Q

I take -- yes, you are right.

Of course.

And you missed some of those exceptions, right? I missed two of them. And not only did you miss some of those, but you

also misscored on some -- on the chart, as well as on the crowding, right? A Q You misscored there?

On the crowding. And let me ask you a little bit about your Are you

background and familiarity with HLD scoring. currently a Medicaid provider? A

My name is currently under Medicaid as a

provider. Q Do you have any patients that are Medicaid

patients? A Q There are no patients assigned to my name. Is it true that you never worked for -- let me Do you know or are familiar with TMHP, that

ask this: entity? A Q

A little bit, yes. And I take it, as being -- having done the

provider -- saying you have a provider number, that in doing so, you have signed all the documents and things that were showed earlier with Dr. Altenhoff? A Q I did at one time, yes. And in doing so, you became familiar with the

ken@kenowen.com * www.kenowen.com 800.829.6936 * 512.472.0880

a34cb9f9-4092-4b01-a7ff-1635cabdc746

Page 188
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

rules and standards of being a Medicaid provider? A Q I think so, yes. It's true that you never attended a stakeholder

meeting, though, right? A Q A Q That's true. Do you receive the bulletins? Yes. Do you -- since you don't have a Medicaid -- any

Medicaid patients assigned to you, do you read them? A Usually, we talk about them at the school, but

they come to all the full-time faculty orthodontists at the school. Q And you were present for the testimony of Dr.

Altenhoff? A Q A For some of it, yes. Some of it or all of it? I think all of it. I stepped out for a moment

and came back in. Q Do you agree with Dr. Altenhoff that the manual

is -- the Medicaid manual is what controls in this particular case? A with it. Q You -- in forming your opinion, you rely upon In this situation, absolutely not. I don't agree

definitions regarding ectopic eruption that are found

ken@kenowen.com * www.kenowen.com 800.829.6936 * 512.472.0880

a34cb9f9-4092-4b01-a7ff-1635cabdc746

Page 189
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

outside of the provider manual, correct? A As a doctor, we are responsible for those. We

learn those, we were taught those. JUDGE SEITZMAN: question. A Q Yes, I did absolutely. (BY MR. HECTOR CANALES) And in applying You just need to answer the

information from outside, the -- your view of ectopic eruption is not limited to the front teeth, to the anterior teeth, correct? A Q As an orthodontist, that is correct. But it is true, is it not, that the Medicaid

provider manual limits ectopic eruption and limits the scope to the front teeth? A Q Yes, it is. So wouldn't you agree, sir, that that is an

example of a difference between the Medicaid rules and the orthodontic experience that you have outside of Medicaid? A Q In terms of scoring, yes. Would you agree, sir, that Medicaid, within its

authority and discretion, has the right and the ability to define ectopic eruption as it saw fit? A Q Yes. Now, prior to forming your opinions in this

particular case, did you speak with anybody at TMHP about

ken@kenowen.com * www.kenowen.com 800.829.6936 * 512.472.0880

a34cb9f9-4092-4b01-a7ff-1635cabdc746

Page 190
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

how HLD scores were administered from 2007 through 2011? A Q No. And you didn't have this -- since you didn't

attend any of these stakeholder meetings, you didn't have the benefit of any of the discussion and information that was provided by TMHP or any of its representatives to the orthodontic public, correct? A Not true. Phil Campbell, Chairman at Baylor, did

go, and we did discuss things that were said at stakeholders' meetings. Q A Q A Q You would have heard it secondhand? Yes. But you didn't hear it firsthand? I did not. And prior to forming your opinion, did you

consult at all with Dr. Altenhoff? A I have consulted with Dr. Altenhoff on a couple I don't remember if I talked to her about

of occasions.

ectopic eruption. Q And did you -- prior to forming your opinion, did

you discuss with anybody at TMHP how from the years that are relevant in this case, from 2007 to 2011, did you go and talk to anybody at TMHP to find out how they were administering these HLD scores and how they were interpreting ectopic eruption under the provider manual?

ken@kenowen.com * www.kenowen.com 800.829.6936 * 512.472.0880

a34cb9f9-4092-4b01-a7ff-1635cabdc746

Page 191
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

A Q

No. Would you think that a fair ectopic eruption

could be fairly described as a tooth being in an abnormal position? A Q It's in the wrong place. How about abnormal position, do you have any

problem with describing it as being in an abnormal position? A Probably not. Probably not. That's probably the

AAO's definition. Q Abnormal position, you don't have any problem

with that? A Q No, I don't think so. And that's a different description than, I think,

what you testified to earlier as having found as abnormal -- wrong place? A It's not a different definition. You may have a

different interpretation, but that's not a different definition. Q I think you said or you testified that Dr.

Proffit had defined ectopic eruption as being in the wrong place; is that fair? A Q Yes. And do you see the difference between the wrong

place and an abnormal position?

ken@kenowen.com * www.kenowen.com 800.829.6936 * 512.472.0880

a34cb9f9-4092-4b01-a7ff-1635cabdc746

Page 192
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

A Q

No. And would you agree that a rotated tooth could be

in an abnormal position? A Q I think it's a rotated tooth. Sir, would you agree that a tooth that is rotated

would be in an abnormal position? A No, I wouldn't. It's not reported like that in It is rotated.

the literature anywhere. Q A

But a rotated tooth isn't normal, is it? A rotated tooth is relatively normal in the

population. Q A Q Well, you mean it happens a lot, right? Most of the time. Were you here when that -- when they started off

and showed that animation to the Court with the skeleton kind of scary thing and the teeth came in; do you remember that? A Q crooked? A Q No. Because within orthodontics, the goal in Yes, uh-huh. Did any of those teeth come in rotated or

orthodontics is to bring teeth into their intended normal position of being straight, right? A Correct.

ken@kenowen.com * www.kenowen.com 800.829.6936 * 512.472.0880

a34cb9f9-4092-4b01-a7ff-1635cabdc746

Page 193
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

So -- but rotated is not the way God intended the

teeth to come in? A I would have to ask God that question. Since it

happened, he probably did. Q Now, as part of -- do you recall -- I believe you

testified that you read the decision of Judge Kilgore and Judge Fekety, correct? A Whatever was published on-line, I read some of

that, yes. Q And you read the part that deals with your I think

testimony in this case about ectopic eruption. you testified to that in your deposition, right? A Q A Q Yes. Because it affects your opinions, right? What affects my opinions?

The decision of a Court on what the proper

definition or interpretation of ectopic eruption is with regards to the provider manual, right? A I don't think it affected my opinion regarding It probably affected my thoughts on the

ectopic eruption.

whole thing, but not my opinion on what ectopic eruption is. Q Would you agree, sir, that the debate that we are

having here and the dispute that is at the center of your opinion is the interpretation and application of ectopic

ken@kenowen.com * www.kenowen.com 800.829.6936 * 512.472.0880

a34cb9f9-4092-4b01-a7ff-1635cabdc746

Page 194
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

eruption as it's described in the provider manual? A I think there is a dispute over what ectopic

eruption is, yes. Q And do you agree or disagree with Dr. Altenhoff,

that the provider manual's description and definition of ectopic eruption involves subjective interpretation? A Well, I disagree with her in part in that ectopic

eruption, as I showed and demonstrated and as is reported in the literature, is pretty objective. place. It's in the wrong

I also showed in a photograph that when ectopic

eruption gets closer to the ridge and as sort of relatively within the position where it goes, there is some subjectivity to it. Q So yes.

And you would agree that Dr. Altenhoff is in a

much better position than you are with regards to understanding how the Medicaid manual and its definitions, including an ectopic eruption, were utilized? A She's in a far better position to understand how

the manual is used and applied. Q And it's under the manual that a Medicaid

provider must operate, right? A Q You must follow the manual. You know that you cannot substitute your opinion

or your view of ectopic eruption from that of the manual, right?

ken@kenowen.com * www.kenowen.com 800.829.6936 * 512.472.0880

a34cb9f9-4092-4b01-a7ff-1635cabdc746

Page 195
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

A Q

Wrong.

Ectopic eruption is ectopic eruption.

Can you count -- your view includes ectopic

eruption as including the molars, right? A molars. Q And that is the view that is accepted within the Ectopic eruption in its definition includes the

orthodontic community, correct? A Q That is ectopic eruption, yes. But that is not the view of the Medicaid provider

manual, right? A The scoring of ectopic eruption is limited and

decided on by the State of Texas. Q Under the State of Texas Medicaid provider

manual, can you score a back tooth as ectopically erupted? A Q No. But that would be completely proper in the

orthodontic world, right? A Q It would be ectopic, yes. Now, I want to go to the definition of ectopic. While he is pulling that up, I

Start with 65, P-65.

apologize if I have covered this before, but the provider manual, this provider manual, this one is for 2009. The

definition of ectopic eruption is the same for P-65, which I believe is the 2008 version, all the way through 2011, right?

ken@kenowen.com * www.kenowen.com 800.829.6936 * 512.472.0880

a34cb9f9-4092-4b01-a7ff-1635cabdc746

Page 196
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

A Q

Yes. So I don't have to put up each year, they are

going to be the same? A Q Yes. Now, ectopic eruption, an unusual pattern of

eruption; do you agree with that? A Q says: Yes. And now after that phrase, there's a comment. Such as high labial cuspids or teeth that are It

grossly out of the long axis of the alveolar ridge. Did I read that right? A Q Yes. You would agree that after the, such as, that the

manual is describing examples of what an unusual pattern of eruption would be? A Q Yes. And you have testified beforehand that that is a

nonexclusive list of an unusual pattern of eruption, correct? A Q A Q Yes. There could be many others? Yes, there could. And there is a dispute between you and Dr. Nazari

and Antoine Dental as to whether or not a rotated tooth could be an unusual pattern of eruption, fair?

ken@kenowen.com * www.kenowen.com 800.829.6936 * 512.472.0880

a34cb9f9-4092-4b01-a7ff-1635cabdc746

Page 197
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

I think he picked teeth that weren't rotated, but

we will -- I will go with -- there is a dispute, yes. Q All right. But fair to say that nowhere within

this description of ectopic eruption does the -- did the Medicaid provider manual exclude or say that a rotated tooth is not a pattern of eruption, correct? A Well, it's because the definition existed. The Medicaid book doesn't It doesn't say what you can and

Ectopic eruption existed. define everything we do.

can't do orthodontically; you learn that in school. Ectopic eruption we learned in school. Those are two examples. Absolutely. But I

ectopic eruption is an unusual pattern of eruption.

have established that teeth are normally not straight, so if they are normally not straight and teeth are unusual, this is the eight percent, the six percent, five percent, four percent. JUDGE SEITZMAN: more time. I'm going to ask you one If we stray

Answer the question that's asked.

from that, then I'm going to instruct you to answer yes or no or I can't answer yes or no. THE WITNESS: I'm sorry. Thank you. And

MR. HECTOR CANALES:

Put up P-74.

specifically going to look to what's written on the page as Page 34.

ken@kenowen.com * www.kenowen.com 800.829.6936 * 512.472.0880

a34cb9f9-4092-4b01-a7ff-1635cabdc746

Page 198
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

(BY MR. HECTOR CANALES)

While he is pulling that

up, I'm going back -- I want to take you back to the decision of Judge Kilgore and Judge Fekety, that's what I'm pulling up here. And it's lengthy, but on Page 34, I

would like to draw your attention -- well, let's just start -- that will work. For context, let's back up because I believe this comes up in the findings of fact, so we can give everybody some context. Okay. So go back up a page.

Here we are dealing with Section 6,

these are the findings of fact. MR. HARGOVE: Judge, I object. I don't see

how this is relevant at all.

It's another proceeding,

another set of facts, another patient's set of files. JUDGE SEITZMAN: objection. Q (BY MR. HECTOR CANALES) So just to orient you, I'm going to overrule the

we are on the findings of fact. A Q Sure. They are numerous, so let's go to Finding of Fact The first one there is that the manual's

Number 26.

reference to high labial cuspids and teeth grossly out of the long axis of the alveolar ridge are nonexclusive examples of ectopic eruption. Do you agree with that finding of fact?

ken@kenowen.com * www.kenowen.com 800.829.6936 * 512.472.0880

a34cb9f9-4092-4b01-a7ff-1635cabdc746

Page 199
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

A Q

Yes. Now, the second -- Number 27, the manual's

definition of ectopic eruption is vague and requires the exercise of subjective judgment to interpret. That's

consistent with what Dr. Altenhoff testified to this morning, correct? A Q I don't remember if she said that or not. Well, but it is true, is it not, that the Finding

of Fact Number 27, that the definition of ectopic eruption is vague and requires subjective judgment; that's true, correct? A Q A Q I don't agree with that. Okay. No. Have you ever discussed your opinions in this Do you know Dr. Evans?

case with Dr. Evans? A Q A Q No. Has he ever discussed his opinions with you? No. Have you read any of his reports or depositions

or anything? A I have not read any of his reports or No, I haven't read -- I have not read his

depositions. deposition. Q

And let me ask you this:

In your review of the

ken@kenowen.com * www.kenowen.com 800.829.6936 * 512.472.0880

a34cb9f9-4092-4b01-a7ff-1635cabdc746

Page 200
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

63 patient files, did you score a tooth as ectopic that was rotated or slanted and on the ridge? A I scored one tooth that was one full tooth off, It was on the ridge, but it

that was not rotated at all.

was -- it was in the position of the lateral incisor. Q I believe you testified that it is possible to

have an ectopic tooth that is on the ridge, right? A Q Yes, I did. Okay. So just because a tooth is on the ridge

does not mean that it cannot be properly identified as ectopic? A Q A Q I believe that is true, yes. Sorry for the double negative there. That's okay. Are you critical of any scoring by Antoine Dental

that were -- or their characterization of a tooth as ectopic if that tooth was on the alveolar ridge? A My decision to score it ectopically, it did not

have to be off the ridge to score it ectopically and I believe I scored one that way. Q So I take it, going back to your earlier

testimony, that you did not do any investigation or inquiry prior to forming your opinion with regards to how TMHP or HHSC administered or interpreted ectopic eruption, that you are not familiar with how they ran the program?

ken@kenowen.com * www.kenowen.com 800.829.6936 * 512.472.0880

a34cb9f9-4092-4b01-a7ff-1635cabdc746

Page 201
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

Well, again, I did the -- I did score patients in But I started

my office, but never had one that scored.

at the school, so working with the people at the school, I mean, that's where -- and Dr. Campbell was going to those meetings, so I didn't see a need for me to go, as well. Q But you were not -- you did not familiarize

yourself -- during the relevant times of this case, you did not familiarize yourself with the practice of prior authorization and the basis of how that prior authorization was either granted or not granted by TMHP, right? A I don't think that's true. Through the school,

we submitted a number of cases, all of which I knew what was going on -- most of which I knew what was going on in terms of the submission of those patients. So I'm not

sure what your question is about what I did or didn't know. Q Your experience was limited to whatever you sent

in and how they responded to you, right? A I would say that's mostly true. Although again,

Dr. Campbell was the one communicating and going to the stakeholders' meeting, communicating more with Dr. Altenhoff and TMHP. Q But you understand, sir, when you were hired in

this case, that you had an opportunity at that point in

ken@kenowen.com * www.kenowen.com 800.829.6936 * 512.472.0880

a34cb9f9-4092-4b01-a7ff-1635cabdc746

Page 202
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

time to go in -- and before giving an opinion in this case, that you could go in and you could ask and actually find out what really -- what TMHP was thinking, what their methodology was and how things were actually working behind the scenes for pre-authorization purposes; you could have done that, right? A I don't remember when I -- when I became a The Medicaid process had been turned over, I

reviewer.

believe, already to the insurance, the three different insurance groups or -- but to answer your question, I did not go to TMHP at any time, that is correct. Q And you will agree -- scroll down there to You will agree, sir, that the definition and

Finding 31.

interpretation of ectopic eruption that TMHP was using during this relevant time period was a greater and more expansive definition than the one you are using? A We got no communication with regard to that,

there was nothing in writing that was ever sent, so my understanding of that did not come until reviewing the cases. Q So the answer is, yes, TMHP's definition and use

during the relevant time period was more expansive than the definition you are relying upon for your opinions here in this case, right? A I don't know that I can speak to what their

ken@kenowen.com * www.kenowen.com 800.829.6936 * 512.472.0880

a34cb9f9-4092-4b01-a7ff-1635cabdc746

Page 203
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

interpretation was. Q Because you didn't go and ask them before coming

here today and giving your opinion and sending your bill to be paid for your services, right? A Except for the definition is -THE WITNESS: If I may. Go ahead.

JUDGE SEITZMAN: A

The definition is an unusual pattern of eruption But ectopic eruption existed

that Texas Medicaid uses.

long before, and it is an unusual pattern of eruption. Q (BY MR. HECTOR CANALES) You assume, sir -- in

forming your opinions in this case, you assumed, did you not, that TMHP's application of their rule fit what your experience was outside of the Medicaid manual process, correct? A My definition is what it is based on everything

that existed in the literature in terms of ectopic eruption. So if TMHP changed the rules, I never got I never saw anything in writing.

anything in writing.

The State didn't change anything as far as I know until the 2012. Q And you would agree, sir, that TMHP and the

change of their rule, the P-81, that says no slanted or rotated teeth, that that didn't come out and either you didn't get it, Antoine Dental didn't get it, nobody in the

ken@kenowen.com * www.kenowen.com 800.829.6936 * 512.472.0880

a34cb9f9-4092-4b01-a7ff-1635cabdc746

Page 204
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

State got that, prior to 2012, right? A Q That is correct. Now, let's pull up -- you discussed a Patient 1,

let's put up -- give me one second here. MR. HECTOR CANALES: Q (BY MR. HECTOR CANALES) 64.01, Page 64.01. This is Patient 1; do

you recall Patient 1? A Q Yes. What I would like to draw your attention to here,

now this is Antoine Dental's score sheet, correct? A Q A Q Looks like it, yes. It is not yours? Right. And I want to focus in on the score there of

overjet; do you see that? A Q A Yes. What is the score for overjet? The score was two. MR. HECTOR CANALES: Now, put up R-11

side-by-side to that one, if possible. Q (BY MR. HECTOR CANALES) Now, your overjet score

is zero, right? A Q A Yes. So we have a discrepancy between -I scored from photos and x-rays, not from models.

ken@kenowen.com * www.kenowen.com 800.829.6936 * 512.472.0880

a34cb9f9-4092-4b01-a7ff-1635cabdc746

Page 205
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

So that has to be with an asterisk that's at the bottom of the page. Q And you made a note of that, right, that you

scored it from the x-rays and models? A Q correct? A Q Yes. And now, sir, given what you know, is a -- are Yes. Now, but nonetheless, you put a score down,

you here to say that a difference in the opinion or scoring here of overjet between zero and two, that that is a willful misrepresentation that rises to the level of a serious program violation? A I certainly can't in this situation because I

don't have the model, and the model very well may measure four just as they have. So photographs are a little

difficult to use, you can get close, but that's -- so there is no way I can say anything like that based on this. Q Okay. Now, but if a doctor would disagree with

you and have a difference of opinion in terms of the measurement of what it is, in your experience, that wouldn't be unusual in your case? A Q That is correct. That docs would have different scores, right?

ken@kenowen.com * www.kenowen.com 800.829.6936 * 512.472.0880

a34cb9f9-4092-4b01-a7ff-1635cabdc746

Page 206
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

A have.

That is correct.

Yes, it would not be unusual to

And certainly, there are studies showing the fact

that multiple measurers do not measure exactly the same amount. Q And that is due to the subjective nature of

scoring -- the scoring in this HLD score sheet? A You are not going to have someone score 12 or 13 Any

when two or three people say that it's four.

measurement that you do, and we do this at the American Board and this is how we calibrate examiners in measuring models, with a bell curve and a distribution and there is a range. Q A Q But the mere -- I'm sorry. It's okay. I'm sorry. Go ahead and finish.

The mere fact that two orthodontists come up with

different measurements or scores in this HLD score sheet, you would agree that that does not mean that they have misrepresented something willfully or they have done something wrong, right? A Q right? A Q To some of this, yes. For instance -MR. HECTOR CANALES: Put up R-7 and R-11 Yes, you are correct. Because there's a subjective nature to this,

ken@kenowen.com * www.kenowen.com 800.829.6936 * 512.472.0880

a34cb9f9-4092-4b01-a7ff-1635cabdc746

Page 207
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

next to each other. these on the -- okay. Q

I'm going to be focusing on both of

(BY MR. HECTOR CANALES)

So R-11 here on the

right, this is what we were just looking at, where you scored zero on the overjet, right? A Q Yes. And you know Dr. Evans is another retained

orthodontist in this case by OIG, just like you? A Q I think I knew that. All right. So here, Dr. Evans scored on the same

thing -- he notes down here that this is just based on photos, but he scored a two, right? Antoine Dental scored two, right? A Q A Q Right. And you scored zero? Right. Now, does this mean that you -- if your score was If you'll recall

submitted, that you would be committing a program violation or fraud? A Q No. I don't believe so.

We haven't gotten to that point yet, whether

difference of opinion on overjet, overbite, even ectopic eruption between orthodontists means that you are a liar and a fraud, right? A If you are talking about linear measurements,

ken@kenowen.com * www.kenowen.com 800.829.6936 * 512.472.0880

a34cb9f9-4092-4b01-a7ff-1635cabdc746

Page 208
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

then no group of ten is going to all agree on a measurement unless they talk about it. If you are talking

about ectopic eruption, I don't agree with -- I think there -- as I explained in the discussion of ectopic eruption, there is a point at which there is subjectivity, but that's up to a point. And at that point, there would

be, in my opinion, a difference of opinion between -there could be a difference of opinion between reasonable people. Q All right. P-64.10. I'm pulling up here Patient

Number 10, and this is the score sheet, HLD score sheet, of Antoine Dental, okay? While he is doing that, you testified in your definition, did you not, that in reviewing these 63 patients, that you estimated that you spend between six and eight hours on this -- on this task, correct? A I think that is my testimony. I'm not sure -- I

would have to ask what was billed or have to look what was billed to know what the time was. Q But that was your testimony under oath just a

month ago? A Q Sure it was. And if you do the basic math, between six and

eight hours and there's 63 patients, you are going anywhere between six to eight minutes per file, right?

ken@kenowen.com * www.kenowen.com 800.829.6936 * 512.472.0880

a34cb9f9-4092-4b01-a7ff-1635cabdc746

Page 209
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

A Q

Eight minutes per scoring. And you knew, sir, that in reviewing those 63

patients, that your opinions were going to be used in this case, right? A Q Yes. And you knew, sir, that this is a serious matter

with serious allegations against my clients, right? A Q Yes. And so I'm sure that you believe that six to

eight minutes was an appropriate amount of time for you to spend to come in and give an expert opinion, right? A I am spending eight minutes on a chart to score

an HLD score is enough. Q A Were you rushed? Did I rush? No. I'm sure that -- well, there

were -- I made the assumption -- I understood that they were all 8080 and they weren't, so that's a problem. But

it's a problem of what I was asked to do and what I did. I get that. I missed one ectopic eruption, ectopically I have got one name on a I know I did that. Those

erupted tooth on a panorex. sheet that's the wrong score.

were pointed out in the deposition. Q made? A I am speaking of those mistakes, that's right. You are speaking of mistakes and errors that you

ken@kenowen.com * www.kenowen.com 800.829.6936 * 512.472.0880

a34cb9f9-4092-4b01-a7ff-1635cabdc746

Page 210
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

One case that had the wrong name where I did not pick ectopic -- or I think I picked ectopic teeth when there were none. And then one ectopic tooth on a panorex that So --

Antoine also did not score, we both missed it. Q

My -- but you knew, sir, during the six to eight

hours when you were looking at it, you knew that your opinion could affect the outcome of this litigation, right? A Q Correct. And you knew that the outcome of this litigation

could affect not only a dental practice, but their employees, their families and all the like, correct? A Q Correct. And as a professor, as a professor of -- and

teacher of dental students in the State, I'm sure you expect your students to take seriously when they are given tasks, when you give them tasks to do? A Q Right. And you grade them on certain -- on the work

product that they turn in to you, right? A Q Right. Now, that we have Patient 10, Antoine Dental --

what was the HLD score that they submitted to Medicaid? A Q Is that Case 10? Yes, sir.

ken@kenowen.com * www.kenowen.com 800.829.6936 * 512.472.0880

a34cb9f9-4092-4b01-a7ff-1635cabdc746

Page 211
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

A Q A Q

The score looks like zero. And you have a criticism with the score of zero? No, no criticism. Is this the one that passed? Of the 63, you said

one passed, is this the one that passed in your book? A I don't remember what the case number was that I

scored 26 on. Q Let's pull it up. R-11. Can you put it

side-by-side with R-11, 10. What did you score, sir? A Q I scored a six. And you would agree that one of the mistakes you

made, it should really even be seven, right, under your terms? A Q Correct. It should be one more, seven.

Now explain to Judge Seitzman and Judge Egan why

it should be seven instead of six and the mistakes that you made. A Crowding is measured beginning at You have to

three-and-a-half millimeters of crowding.

have three-and-a-half millimeters to score -- to get credit for crowding. The way that crowding is measured on

the HLD index, if you meet the 3.5 millimeter crowding standard, you get five points. The way I scored it was

the exact amount of crowding, so if the crowd was four, I

ken@kenowen.com * www.kenowen.com 800.829.6936 * 512.472.0880

a34cb9f9-4092-4b01-a7ff-1635cabdc746

Page 212
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

scored it four instead of five. five, it was always five. that's how I scored it. Q A

Once the crowding was

So that's how I learned it, But that is not the correct way.

You made a mistake, right? I didn't score it correctly. I didn't make a

mistake based on what I was doing, but that is a mistake nonetheless. Q Zoom in here on that anterior crowding section.

Now, this particular form, it clearly spells out, does it not, that if you got anterior crowding, it's either on the upper and lower -- I'm interpreting max and min -- it's five points, right? A Q A Q When I look at it now, yes, I think it's clear. Pretty straightforward, right? Probably about as straightforward as those get. When you scored these sheets, you were supposed

to look at the entire patient file, right? A Q I was asked only to score the HLD score. But in order to score, to do a truthful, accurate

and complete -- that's the standard that's been -- that they talked about earlier, OIG talked about earlier this morning, right, truthful, accurate and complete, right? A Q A Okay, yes. Do you agree? Yes.

ken@kenowen.com * www.kenowen.com 800.829.6936 * 512.472.0880

a34cb9f9-4092-4b01-a7ff-1635cabdc746

Page 213
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

Do you remember them putting it up on the screen,

blowing up the section that says, truthful, accurate and complete? A I couldn't see the screen, but I will take your

word for it. Q So in order to -- for you to do your job and earn

the fee that you were getting for this, for scoring these and to be truthful, accurate and complete, you agree that you should have looked at the entire patient file, right? A I agree that, in hindsight, I should have

objected to only scoring the HLD scores and should have reviewed the entire chart, including chart notes, appliances used and everything. Q So are you telling the Court that you did not

look at the entire file when you were scoring these HLDs? A I had the entire file; I did not go through the I was asked essentially not to, to review

chart notes.

only the HLD scores and score those. Q So you would agree that in order to do a

truthful, accurate and complete score -- for instance, you probably should have looked at the x-rays, right? A Q Yeah, those do. But you know, sir, because we brought this up in

your deposition, you know, sir, that on Patient 10 here, that you did not provide a truthful, accurate and complete

ken@kenowen.com * www.kenowen.com 800.829.6936 * 512.472.0880

a34cb9f9-4092-4b01-a7ff-1635cabdc746

Page 214
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

HLD score because you didn't look at the x-ray, right? A I looked at an x-ray. I'm not sure what x-ray I

looked at.

Antoine didn't score it either, so I can't I obviously -- the

testify to what x-ray I looked at.

x-ray on my deposition that was showed to me clearly had an ectopic tooth. If that is the x-ray that was in the

chart, and I assume it is, I have no reason to assume otherwise, then that tooth was missed. Q here. A Q Let's go to Antoine -- to this description area It says there's Impact Number 8 and 9; see that? Uh-huh. And then it says, interceptive; do you see that?

Are you with me? A Q Yes. Interceptive treatment, that's one of those

exceptions to the score that you testified earlier to? A Q That is correct. And if we look over here on your diagnosis, you

do what -- you say what, any mention of Impacted 8 or 9? A Q Impacted 8 or 9, no. And an impacted tooth, that's a tooth down below,

that you can't see with the naked eye? A It's actually Tooth Number 8 and 9, that would be

two upper central incisors, and I would have to look at it to see whether that was accurate or not.

ken@kenowen.com * www.kenowen.com 800.829.6936 * 512.472.0880

a34cb9f9-4092-4b01-a7ff-1635cabdc746

Page 215
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

Pull up the x-ray for P-64, Patient 10. JUDGE EGAN: THE WITNESS: Tooth 8 and 9 are what? Two upper middle front teeth.

That is the different numbering system. Q (BY MR. HECTOR CANALES) Now, you didn't look at

this x-ray prior to scoring the sheet, did you? A or not. Q right? A I couldn't recall whether I looked at that x-ray I looked at an x-ray. It's a pretty gnarly x-ray, you would agree, Did you hear my question? I did hear your question. Well, it certainly These x-rays

looks gnarly.

The answer to that is yes.

are not the best ones to evaluate in terms of space available, but it appears just as you are looking at it, yes, it's gnarly. Q But your score sheet doesn't reflect all the

conditions that are present here on this x-ray? A chart. MR. HECTOR CANALES: put up this picture. Tell you what, let's I I would say -- well, let me look at the whole

Put up the intra-oral photos.

guess it's going to come off P-64, P-10. Q (BY MR. HECTOR CANALES) Sir, you would agree

that Patient 10 qualifies for treatment within the Medicaid program, correct?

ken@kenowen.com * www.kenowen.com 800.829.6936 * 512.472.0880

a34cb9f9-4092-4b01-a7ff-1635cabdc746

Page 216
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

A Q quick.

Yes.

As interceptive, yes.

And within your report -- let me find that real But you didn't approve, this is not -- you didn't

approve Patient 10 in your opinion or your report, did you? A I did not approve it. Again, the assumption was

that they were all 8080s. JUDGE EGAN: I'm sorry. What is -- your

voice is dropping and I can't hear you. THE WITNESS: I'm sorry. When the files

were handed to me, I understood from that that these were comprehensive treatment cases only and to be cased by HLD. JUDGE SEITZMAN: THE WITNESS: Q A That's the D-8080?

That's the D-8080. Who told you that? Brian Klozik, he told

(BY MR. HECTOR CANALES)

Who told me to score that?

me to score the HLD index only. Q role? A Q A Q A Q With OIG. Is he an orthodontist? No. Is he a dentist? No. So you took instructions from a nondentist and And who is -- and what's Mr. Klozik's sick's

ken@kenowen.com * www.kenowen.com 800.829.6936 * 512.472.0880

a34cb9f9-4092-4b01-a7ff-1635cabdc746

Page 217
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

nonorthodontist as to how to score HLD? A Not how to score it, but what to do with the

patient records. Q Okay. So as a result of Mr. Klozik's

instructions to you, you didn't look at the full picture or full -- all the information that you otherwise would have? A I didn't look at the patient chart in terms of

treatment notes or what it was billed. Q Now, certainly the score sheet, Antoine Dental

score sheet, that are all zeros, you would agree that that is not a case where they inflated or exaggerated the number of ectopic teeth present, right? A Q Correct. But that's the last line of your report that you

submitted, was that the HLD scores were inflated by exaggerating the number of ectopic teeth present, right? A Taking the entire sample that -- the answer to

that is yes. Q Let's look at P-64-43. All right. I'll

represent to you, this is the score sheet of Antoine Dental, and it appears to have a score total score of 27; do you agree? A Q Yes. And it looks like on the ectopic side, there's 24

ken@kenowen.com * www.kenowen.com 800.829.6936 * 512.472.0880

a34cb9f9-4092-4b01-a7ff-1635cabdc746

Page 218
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

points, right? A Q that? A Q Yes. And then in orthodontic code, can you decipher Yes. And the diagnosis includes impacted; do you see

that 3 and the little lines around it? A It would appear to be lower, but other than that,

I wouldn't be able to tell. Q A Q A lower Number 3? It would appear to be that. It's certainly a 3, but which 3 we will leave

open for debate, but certainly there is a 3 involved? A Q Right. Let's go to R-11-43, this is your score sheet of I'm sorry. You do it on the hard copy

the same patient.

it doesn't have it on the digital. Okay. A Q A Q Yes. So we have 27 versus one, right? Yes. And how many points did you give for ectopic Your total score is one, right?

eruption? A Q None. And here we have a slight difference on the --

ken@kenowen.com * www.kenowen.com 800.829.6936 * 512.472.0880

a34cb9f9-4092-4b01-a7ff-1635cabdc746

Page 219
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

that's overjet there, two versus one, right? subjectivity; do you agree? A Q Yes.

That's the

And now on your diagnosis, any mention of an

impacted tooth or anything with regard to a Number 3? A earlier. Q Let's pull up the x-ray on Patient Number 43. No, that's the one I said earlier, mentioned

Now, in this particular x-ray, there is an obvious ectopic tooth; is there not? A Q Yes. But despite that obvious ectopic tooth, you

missed it? A Q you? I did miss that one. Do you have a pointer right there in front of Could you point out to the Judges the obvious tooth

that you missed? A Q A Right there. Where? Right here. That tooth belongs right there, that

tooth is ectopic. Q A Q A What about the top of -You mean this? Where? Right there. Yes.

ken@kenowen.com * www.kenowen.com 800.829.6936 * 512.472.0880

a34cb9f9-4092-4b01-a7ff-1635cabdc746

Page 220
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

Q A Q

Right there? Uh-huh. Okay. Now, sir, if one of your students turned

in a score sheet and missed this tooth, you would give them an F, wouldn't you? A Q I missed it, yes. Even an Aggie dentist should have caught that

one, right? A Q it? A No. That's an ectopic tooth and actually No comment. But in all seriousness, that's not even close, is

transposed, yes. Q Is it causing damage to the lower teeth, this

ectopic tooth? A yes. I think there's a good chance that it could be, The research says, yes, that there's probably a 60,

50 percent chance that damage is occurring. Q Now, in outside of the Medicaid world, are

indexes such as the HLD index that we have here, are they -- isn't it true that they are rejected as scientifically invalid? A You are talking about indexes to determine

severely handicapping patients, correct? Q Yes, sir.

ken@kenowen.com * www.kenowen.com 800.829.6936 * 512.472.0880

a34cb9f9-4092-4b01-a7ff-1635cabdc746

Page 221
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

I think that there are certainly -- well, Statistically, the terms are specificity and And if I may, I'll explain that.

probably.

sensitivity. Q A

Well, let me -I'll say yes. THE WITNESS: Sorry, Judge. So, for instance, you

(BY MR. HECTOR CANALES)

testified in your deposition that the American Association of Orthodontists does not accept as a scientifically valid index as a measure, right? A Q For determining handicapping. And that is a serious difference here between --

the world that you are in, sir, you are a professor, you are not dealing primarily with Medicaid, but there is a big difference between that world and the Medicaid provider manual, right? A I'm not sure what you are asking. MR. HECTOR CANALES: at the answers. Don't shake your head

Don't coach the witness. I did not do that at all. Counsel, don't talk to each

MR. HARGOVE:

JUDGE SEITZMAN: other. MR. HARGOVE: all? A

Judge, I did not do that at

I will be glad to answer the question.

I really

ken@kenowen.com * www.kenowen.com 800.829.6936 * 512.472.0880

a34cb9f9-4092-4b01-a7ff-1635cabdc746

Page 222
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

didn't see him.

I'm focused on you.

If you can rephrase

where I understand it, I will be glad to answer. Q (BY MR. HECTOR CANALES) My question is: Is it

not true that the American Association of Orthodontists rejects as scientifically valid indexes like the one we are using in this particular case? A Q May I explain more than yes or no? It's a yes-or-no question. JUDGE SEITZMAN: answer. A You can answer yes or no,

If you can't, say you can't answer it yes or no. I believe that the American Association of

Orthodontists has rendered an opinion that -- I don't know that they have looked at every index, but they have rendered an opinion that it is statistically not valid to meet the need that they are looking for. Q (BY MR. HECTOR CANALES) Now, do you have the

benefit of knowing why Medicaid, Texas Medicaid would choose to use a program or an HLD index that the American Association of Orthodontists rejects? A My understanding is they don't. They supported

one at one time and that was the Salzmann, and they spent a lot of time and energy in trying to put it together. So

it's not that they reject the principal of an index, they just haven't found one that they look the most. I can't

say any reason why Texas would choose HLD over any -- over

ken@kenowen.com * www.kenowen.com 800.829.6936 * 512.472.0880

a34cb9f9-4092-4b01-a7ff-1635cabdc746

Page 223
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

the Salzmann or over any other type of index. Q There isn't any orthodontist within the State

that's not directly working for Texas Medicaid or HHSC, who has the power to control that decision, right? A Q Suppose that's right. You didn't have any control over them choosing

this HLD index, right? A Q Right. You didn't have any control over how they

described ectopic eruption and what qualified in it? A Q A Right. And neither did Antoine Dental, fair? I'll pull it back enough to say there are --

there are -- whether it be a anatomy, whether it be any number of things that we learn as dentists, ectopic eruption being one of those, that apply long before Medicaid existed even in the State of Texas. So I get --

I understand that we didn't have control over which index they choose, but they chose it. Q That's right. Now, you -- the summary sheet,

this little chart that came in, there are several areas where there is just gray all the way across. And I assume

that indicates you were missing the HLD score sheet; am I reading it right? A I believe that's right.

ken@kenowen.com * www.kenowen.com 800.829.6936 * 512.472.0880

a34cb9f9-4092-4b01-a7ff-1635cabdc746

Page 224
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

And the first one on there is Patient 10.

Do you

have that in front of you? A Q That's the one we just looked at. So obviously, your summary that shows there is no

HLD score sheet, that is wrong, right? A Actually, no. Those are pulled out, I believe, For the purpose of

for the purposes of the numbers.

counting at the bottom, that is pulled out. Q Okay. All right. So we don't have an issue of a

missing HLD score sheet on Numbers 10, 44, 51 or 53; is that right? A I don't know about the others. I would have to

look to see whether they are missing the score sheet or not. Q Well, that's what you testified to. Did I not

hear you correctly that 10, 44, 51 and 53 were missing HLD score sheets? A I think I said that, but I'm pretty sure that 9 So for counting, I

and 10 were interceptive treatment. believe that's right, yes. Q

Let's -- but 10 isn't missing, we just looked at

10, right? A Q Yes, you are right. So if you said earlier that 10 was missing, you

are taking that back, right?

ken@kenowen.com * www.kenowen.com 800.829.6936 * 512.472.0880

a34cb9f9-4092-4b01-a7ff-1635cabdc746

Page 225
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

A Q

Okay, yes. And so the next one, let's go to the next one you Do you agree that's what you

said was missing, 44. testified? A

Do you want to look at it?

If it's grayed out, there is a reason why it's

not there. MR. HECTOR CANALES: Q (BY MR. HECTOR CANALES) Put up P-64.44. All right. Sir, I'll

represent to you that this is the HLD score sheet for Patient 44. A Not -Q Sir, here is the score -- here is the score sheet That is totally inconsistent with your If that's the case --

And it was in the -- it was in the chart, right?

for Patient 44.

testimony that it's missing, right? A Q A Q A Can I see that sheet? Yes, sir. I see the score sheet up there. Somehow you made another mistake, right? I'm not going to say that. There were -- the --

I would have to go back and look in the chart, through the chart, the records that's in the chart to see whether that was there or not. Q A Sir, when did you make that summary? Within the last week.

ken@kenowen.com * www.kenowen.com 800.829.6936 * 512.472.0880

a34cb9f9-4092-4b01-a7ff-1635cabdc746

Page 226
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

Q A Q

Did you make it or somebody else do it for you? Nobody else made it. So you had to base it on something that it was

missing, right? A Q Yes. Well, regardless of how it happened, your summary

is wrong, right? A wrong. Q A All right. I'll be glad to add it to the chart. I would Assuming that was in the chart, then it would be

like to add it to the chart. Q I'm going to represent you that there are also Put them up there so we

HLD score sheets for 51 and 53.

can get through this a little quicker. Did you rely, sir, upon the attorneys or whoever from OIG to provide you with the necessary information to render your opinions in this case? A Q A No. Did you tell them, give me the whole chart? I didn't get the chart from them. The charts

came from OIG. Q All right. I'll represent to you, looking at the My

screen here, are Patients 51 and 53 HLD score sheets. question to you is the same:

Do you agree that there they

ken@kenowen.com * www.kenowen.com 800.829.6936 * 512.472.0880

a34cb9f9-4092-4b01-a7ff-1635cabdc746

Page 227
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

are and your testimony is, they are not there? A Q I certainly didn't see them. Would you now, sir, agree that your summary

should be changed to reflect that there are no missing HLD score sheets? A Q A Q I would love to. Will you? Yeah. Okay. Thank you very much. May I confer one

MR. HECTOR CANALES: moment? JUDGE SEITZMAN: Q

You may. Very quickly. What I

(BY MR. HECTOR CANALES)

was getting at in my questioning in terms of documents that you received, let me ask: Have you ever been --

served in the role of a retaining witness prior to this? A Q No. Did you -- do you realize, sir, that although

they are paying for your time, that you have the ability to ask them to provide you all necessary records that you need to form your opinion? A I suppose I didn't know, but I would have asked

if I needed it, I guess. Q And did you -- through your involvement with

Medicaid, you are familiar with and the existence of TMHP

ken@kenowen.com * www.kenowen.com 800.829.6936 * 512.472.0880

a34cb9f9-4092-4b01-a7ff-1635cabdc746

Page 228
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

for rendering your opinions in this case, right? A Q Familiar with the existence, yes. You know they are the ones that provide or don't

give preauthorization? A Q Yes. And that those where the records to go to, so

when Baylor submits its records and its HLD sheet, you know that those sheets go to TMHP, right? A Q Yes. So you would agree that, with that knowledge,

that you knew that if things were missing, HLD score sheets were missing, that TMHP is the place that they should have gone, right? A Q They should have gone, sure. Did you ask TMHP or ask anybody at OIG to get the

HLD score sheets that were in the possession of TMHP? A missing. Q have it? A I assumed they weren't there. MR. HECTOR CANALES: have no further questions. JUDGE EGAN: Thank you very much. I You assumed that they weren't there if you didn't No. If I didn't have it, I just marked it as

Pass the witness.

I have a couple of questions to

clarify your earlier testimony.

ken@kenowen.com * www.kenowen.com 800.829.6936 * 512.472.0880

a34cb9f9-4092-4b01-a7ff-1635cabdc746

Page 229
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

EXAMINATION BY JUDGE EGAN: Q You have been on the stand for a while, so I'll My notes indicate that you

try to refresh your memory.

believe that Baylor has seen approximately 700 Medicaid patients? A Q Screened 700 Medicaid patients. And of those -- and of those, 25 to 26 patients

were actually approved for braces, for want of a better word? A Q That's pretty close to the right number. My math is horrible, so I just want to make sure,

I would say that's about 3.5 percent of the screened patients? A Q That is correct. Did you have any input into the sample that was

selected by OIG to review in this case from Antoine? A No. I have asked about how it was determined,

but other than that, I had no input. Q Do you know how many Medicaid patients were

screened by Antoine between November 2008 and August 2011? A I actually asked if that's possible to find out, I guess

but it was -- I don't know that it's possible. somebody should know. Q But you don't know?

ken@kenowen.com * www.kenowen.com 800.829.6936 * 512.472.0880

a34cb9f9-4092-4b01-a7ff-1635cabdc746

Page 230
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

A Q

I don't know. So just in the case of Baylor, you know what the But in the case of Antoine, you don't

screen amount was.

know how many Medicaid patients were screened, so the percentages are based solely on the sample that was pulled to be reviewed? A Correct. And if I may, my understanding is that

it is a reliable scientifically valid sample. Q A at all. Who told you that? OIG told me that. I can't vouch for the method

I don't even know what software or what science

is behind it. Q Do you know whether or not it was a random sample

of providers that were investigated? A Q I do not know that answer. If you can look at your summary, I'm trying to It's R-49. If you can look in

make sure I understand.

the columns that appear to summarize how many -- the scoring that was actually done by you and by Antoine? A Q Yes. There are a couple -- the scoring is usually

marked with blue or gray, but there are a couple of places where it is white. A Q No reason for that. Okay. Accidental.

That's what I needed to make sure.

ken@kenowen.com * www.kenowen.com 800.829.6936 * 512.472.0880

a34cb9f9-4092-4b01-a7ff-1635cabdc746

Page 231
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

A Q A

Same with the white numbers, that was accidental. The first two rows? Yes. JUDGE EGAN: Thank you. EXAMINATION

BY JUDGE SEITZMAN: Q Doctor, let me see if I can put your direct and Let's take Mr. Canales' cross

cross on a bumper sticker. first.

If the relevant definition of ectopic eruption was -- for Medicaid during the relevant time period was broader than the definition you use, then your opinion as to HLD scoring might be different; is that correct? A I don't see how you can broaden it enough to

include the teeth that were included wholly. Q I'm not saying for all the HLD scores, but for

some of the HLD scoring, would your opinion differ at all? A teeth. Q I'm just talking about the anterior tooth, but if Well, I have always wanted them to include back

the definition of ectopic eruption, the debate that you and Mr. Canales had for several hours, if the definition was broader than the definition that you used, would your opinion be different as to some of the HLD scoring?

ken@kenowen.com * www.kenowen.com 800.829.6936 * 512.472.0880

a34cb9f9-4092-4b01-a7ff-1635cabdc746

Page 232
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

I think if -- the answer to that is if it's

ectopic eruption and it's stated the same, my opinion would be my opinion. If the State changed and altered the

definition to be broader, absolutely, it would include whatever the State decides to include. Q So the flip side then, the other bumper sticker,

Mr. Hargrove's direct, if the definition you used is correct, then with the notations that have been made with errors or whatever in the scoring that you did on your sheet, but with those corrections, then you would not be changing your opinion of your scoring? A That is correct. Ectopic eruption is an unusual

eruptive event. Q So we come down to whether the State Medicaid

definition was more expansive than the definition that you have used for your scoring? A Yes. JUDGE SEITZMAN: Mr. Hargrove?

REDIRECT EXAMINATION BY MR. HARGROVE: Q Describe for the Judges the code D-8080, what is

that code? A Q A D-8080? Correct. That is the code for comprehensive treatment.

ken@kenowen.com * www.kenowen.com 800.829.6936 * 512.472.0880

a34cb9f9-4092-4b01-a7ff-1635cabdc746

Page 233
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

And when we say comprehensive treatment, we are

talking about braces? A Q correct? A Q Yes. And you would agree with me, for crossbite, you Braces on all the teeth. And there is a different code for crossbite,

would not use an HLD score sheet, correct? A Q That is correct. Okay. So if they are seeking reimbursement for

crossbite only, there wouldn't be -- you shouldn't expect to see an HLD score sheet in a patient file? A Q You shouldn't expect to see it. If we could pull up R-15-341, and if you could

blow up the very top, Section 19.21. This part of the manual is telling a provider how to score the HLD score sheet, correct? A Q Yes. If you can go to the full thing, pull up the full

page, highlight it. Let me ask you this, Doctor: Anywhere on

Section 19.21 do you see instructions to a provider, to a dentist, to score crossbite on the HLD score sheet? A No, unless it's mandibular protrusion, and then

it is scored under mandibular protrusion.

ken@kenowen.com * www.kenowen.com 800.829.6936 * 512.472.0880

a34cb9f9-4092-4b01-a7ff-1635cabdc746

Page 234
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

What I want to get at is -- go down to -- go down It says that the --

further, under labio-lingual.

highlight where it says, provider should be conservative in scoring. So that's how dentists are instructed to score, to be conservative in scoring, liberal scoring will not be helpful in evaluation and approval of the case, correct? A Q right? A Q page. right? A Q Yes. And there's nowhere here to score crossbite Yes. If you could go to the score sheet, the next All right. Here, this is an HLD score sheet, Correct. Because this is a limitation and defined benefit,

therapy, correct? A Q Correct. And crossbite therapy, again, is under a

different code, correct? A Q Yes. So if we could pull up Patient File 10. Now, the

records that were presented to you in reference to your chart, this young man -- the records presented to you when

ken@kenowen.com * www.kenowen.com 800.829.6936 * 512.472.0880

a34cb9f9-4092-4b01-a7ff-1635cabdc746

Page 235
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

you pulled out your chart, you saw the records that were obtained from Antoine when we were there -- and scroll through the records, please. JUDGE SEITZMAN: MR. HARGOVE: Q (BY MR. HARGOVE) You changed exhibits. This is P-44.

I did, Judge. Go back.

So those are the

codes there, correct, D-8080? A Q Yes. Go down, keep going through the file. No HLD

score sheet, correct? A Q Correct. So in your summary, R-49, you had no -- the file

simply did not have an HLD score sheet, correct? A Q I didn't see one there. And these are Petitioner's -- these are Antoine's

records, correct? A Q A Q If you say so. It's marked P-44, so that is their mark. Okay. If you could go to Petitioner 74, this is the --

Antoine asked you questions about this earlier, not this paragraph, but other paragraphs. If you take a moment and

read Paragraph 28, and then I have a question for you. A Q Okay. You don't know what the record is from that case,

ken@kenowen.com * www.kenowen.com 800.829.6936 * 512.472.0880

a34cb9f9-4092-4b01-a7ff-1635cabdc746

Page 236
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

right? A Q Right. But in terms of the last part of that sentence,

non-Medicaid understanding of the specifics of the meaning of ectopic eruption among orthodontic providers. your opinion that there is a definition of ectopic eruption? A Q A Absolutely. All right. And in the manual -Is it

It's learned in every dental school and every

orthodontic program in the country. Q And in the manual, which is written for dentists,

they should understand what ectopic eruption means, correct? A Q Yes. And it is an instruction on how to score ectopic

eruption, correct? A Q Yes. I want to go back to your Baylor work, when you Just tell me a little bit

treat Medicaid beneficiaries. about that.

You actually do, in your capacity, treat and

see and screen Medicaid beneficiaries at Baylor, correct? A Q Yes. And as it relates to the information you

received, in scoring the HLD score sheet, anything that

ken@kenowen.com * www.kenowen.com 800.829.6936 * 512.472.0880

a34cb9f9-4092-4b01-a7ff-1635cabdc746

Page 237
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

you heard today, does that change your opinion about the opinions that you rendered earlier at the conclusion of your testimony? A Q No. And whether there is a presence of crossbite and

a coding for crossbite, does that change your opinion whether Antoine misrepresented scoring their patients as having ectopically erupted teeth on their score sheets? A Q A Q Not on those that were D-8080. On D-8080? Correct. Does the fact that the manual says only use front

teeth, does that in any way change the definition of ectopic eruption? A No, it doesn't change the definition. It limits

it to front teeth. Q And would you agree with me that there are not

two definitions of ectopic eruption; in other words, one for the Medicaid world and one for the non-Medicaid world? A I'm not sure how to answer that. I think there's

ectopic eruption, period, and there is a definition of ectopic eruption. And what the State chooses -- you know,

their definition based on what it is, an unusual pattern of eruption, is exactly like the definition that is ubiquitous in the dental community.

ken@kenowen.com * www.kenowen.com 800.829.6936 * 512.472.0880

a34cb9f9-4092-4b01-a7ff-1635cabdc746

Page 238
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

JUDGE EGAN: THE WITNESS:

I'm sorry, speak up. The definition of an unusual

pattern of eruption is exactly as it occurs and is written in the literature and is written in the textbooks. my view of the Texas definition, while not very descriptive, is similar to textbook's definition of ectopic eruption. MR. HARGOVE: May I have a minute, Judges? You may. So in

JUDGE SEITZMAN: (Off the record.) Q (BY MR. HARGOVE)

All right.

Doctor, based upon

your cross-examination, do you still hold the opinion that -- of the patient files that you reviewed, the records that you reviewed, about whether these Antoine patients suffered from a severe handicapping malocclusion? A The majority of them did not. MR. HARGOVE: you. JUDGE SEITZMAN: of the -MR. HECTOR CANALES: bumper sticker and questions. JUDGE SEITZMAN: next time. Is there anything else parties want to take Maybe I should go first I'm satisfied with my Now, subject to the scope I'll pass the witness. Thank

ken@kenowen.com * www.kenowen.com 800.829.6936 * 512.472.0880

a34cb9f9-4092-4b01-a7ff-1635cabdc746

Page 239
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

up with this witness today? Doctor, you may sit down. much. Shall we recess for the day? MR. HARGOVE: Sounds good, Judge. Who is our first witness Thank you very

JUDGE SEITZMAN: tomorrow? MR. HARGOVE: Judge? MR. MORIARTY:

Can we think about that,

We talked about Dr. Orr.

They wanted to call him first thing tomorrow and that is fine with us. JUDGE SEITZMAN: Mr. Canales, that works? MR. CANALES: Yes, we are good. Before we go off the 9 o'clock with Dr. Orr?

JUDGE SEITZMAN:

record, let me take a second on behalf of Judge Egan and myself to thank each party's computer operator back there for doing a wonderful job on the fly, not only getting what your attorneys wanted, but getting everything blacked out that needed to be blacked out. much. All right. If there is nothing else, we Thank you. Thank y'all very, very

will recess and we are off the record at 5:07. (Proceedings adjourned.)

ken@kenowen.com * www.kenowen.com 800.829.6936 * 512.472.0880

a34cb9f9-4092-4b01-a7ff-1635cabdc746

Page 240
1 2

C E R T I F I C A T E

AU

3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

STATE OF TEXAS COUNTY OF TRAVIS

) )

I, Renea Seggern, CSR, in and for the State of Texas, do hereby certify that the above-captioned matter came to hearing before the State Office of Administrative Hearings on the 28th day of May, 2013, as hereinbefore set out. I FURTHER CERTIFY that the proceedings of said hearing were reported to me, accurately reduced to typewriting under my supervision and control and that the foregoing pages are a full, true, and correct transcription of said proceedings. I FURTHER CERTIFY that I am neither attorney or counsel for, related to, nor employed by any parties to the action of these proceedings and, further, I am not a relative or employee of any counsel employed by the parties hereto or financially interested in the action. SUBSCRIBED AND SWORN to under my hand and seal of office on this the ________ day of ________________, 2013.

t rip sc d . an e gy Tr ign lo s no Ed lly ch a P Y ie te O rtif onic al e C r eg l c ct C TI ina ele alL e EN rig as R TH e o e w ing us fil

Th

________________________________ Renea Seggern, CSR #7262 Certificate Expires 12-31-2014 Ken Owen & Associates, Cert #115 801 West Avenue Austin, Texas 78701 (512) 472-0880

ken@kenowen.com * www.kenowen.com 800.829.6936 * 512.472.0880

a34cb9f9-4092-4b01-a7ff-1635cabdc746