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REPORTER'S RECORD VOLUME 3 OF 4 VOLUME SOAH DOCKET NO. 529-13-0997 HHSC-OIG CASE NO: P20111316523848911 ANTOINE DENTAL CENTER, ( PETITIONER, ( ( VS. ( BEFORE THE STATE OFFICE ( TEXAS HEALTH AND HUMAN ( SERVICES COMMISSION, ( OFFICE OF INSPECTOR ( GENERAL, ( RESPONDENT ( ADMINISTRATIVE HEARINGS

*************************** HEARING ***************************

On the 30th of May, 2013, the following proceedings came on to be heard in the above-entitled and numbered cause before the Honorable Howard Seitzman and Catherine Egan, Associate Law Judges presiding, held in Austin, Travis County, Texas. Proceedings reported by Machine Shorthand.

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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 300 West 15th Street, Suite 504 Austin, Texas 78701 FOR THE PETITIONER: Mr. J.A. "Tony" Canales Mr. Hector Canales CANALES & SIMONSON, P.C. 2601 Morgan Avenue Corpus Christi, Texas 78465 Telephone: 361.883.0601 -andMr. Robert M. Anderson ROBERT M. ANDERTON, DDS, JD 1909 Walnut Plz Carrollton, Texas 75006 Telephone: 972.416.5251 -andMr. Philip H. Hilder Mr. William B. Graham Mr. James G. Rytting HILDER & ASSOCIATES, P.C. 819 Lovette Blvd. Houston, Texas 77006 Telephone: 713.655.9111 -andMr. Thomas Watkins BROWN McCARROLL 111 Congress Avenue, Suite 1400 Austin, Texas 78701 Telephone: 512.703.5752 FOR THE RESPONDENT: Mr. Dan Hargrove WATERS & KRAUSE, L.L.P. 600 Navarro, Suite 500 San Antonio, Texas 78205 Telephone: 210.349.0515 -and-

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Ms. Caitlyn Silhan WATERS & KRAUS, L.L.P. 3219 McKinney Avenue Dallas, Texas 75204 Telephone: 214.357.6244 -andMr. James R. Moriarty MORIARTY LEYENDECKER, P.C. 4203 Montrose, Suite 150 Houston, Texas 77006 Telephone: 713.528.0700 -andMr. Ketan Kharod KHAROD LAW FIRM, P.C. PO Box 151677 Austin, Texas 78715 Telephone: 512.293.1556 -andMr. Raymond C. Winter Ms. Margaret M. Moore ATTORNEY GENERAL OF TEXAS Civil Medicaid Fraud Division PO Box 12548 Austin, Texas 78711-2548 Telephone: 512.936.1709 HEALTH AND HUMAN SERVICES COMMISSION - OFFICE OF INSPECTOR GENERAL: Mr. Enrique Varela Mr. John R. Medlock 11101 Metric Blvd., Building I Austin, Texas 78708 Telephone: 512.491.2000

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Volume 4 May 30th, 2013 RESPONDENT'S WITNESSES Wael Kanaan Jack Stick Direct 5,177 186,248,271,337 EXHIBIT INDEX PETITIONER'S NO. 77 DESCRIPTION OFFERED 164 315 128 ADMITTED 169 316 129 Cross 97,184 275 242,271 341 Page Voir Dire

Court Reporter's Certificate................

Spreadsheet

10 11 12 13 14 15 16 17

82 (82A) April 4, 2012, payment hold letter 83 "Six Keys to Normal Occlusion" by Lawrence F. Andrews "The HLD Index and Index Question" by William Parker

84

131

131

RESPONDENT'S NO. 37 Draker article 132 132

18 19 20 21 22 23 24 25

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P R O C E E D I N G S JUDGE SEITZMAN: the record. 2013. All right. Let's go on

It is 9:07 on Thursday, May the 30th,

This is the continuation of the hearing in SOAH Judges Seitzman and Egan

Docket Number 529-13-0997. presiding.

And at this time we're ready for the next witness, Mr. Moriarty. MR. MORIARTY: MR. HILDER: Your Honor, I -The mic might not be on. All right. We need to --

JUDGE SEITZMAN: MS. SILHAN: the respondent. JUDGE SEITZMAN:

Yes, I'm Caitlyn Silhan for

Ms. Silhan, are you

calling Dr. Kanaan as the next witness; is that correct? MS. SILHAN: that correct? THE WITNESS: Good morning. Uh-huh. I am, yes. Dr. Kanaan, is

(Witness sworn.) WAEL KANAAN, having been first duly sworn, testified as follows: DIRECT EXAMINATION BY MS. SILHAN: Q. Hi, Dr. Kanaan.

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A. Q.

Hi, good morning. Since this is the first time we've heard from

you, I'd just like to give the Judges a little bit of your background. A. Q. A. Q. Uh-huh. When did you become an orthodontist? 2005. Okay. And how long have you been working with

All Smiles? A. Q. A. Q. A. Q. A. All Smiles? I'm sorry. Antoine Dental Center.

Since December, 2006. Okay. I started one day a week -Okay. -- then I think two or three days a week. JUDGE SEITZMAN: Doctor, can you pull So, if you

that -- that's not a very sensitive mic.

can pull it as close to you as possible, you can tilt it or whatever so you don't get a neck cramp. THE WITNESS: Okay. Thank you.

JUDGE SEITZMAN: Q. clinics? A. (BY MS. SILHAN)

Do you work at any other

I have my own clinic --

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Q. A. a month. Q. A.

Okay. -- and two other clinics as a consultant once

What are the names of those clinics? Antoine Dental -- are you talking about that

we take Medicaid or in general? Q. A. In general, all the clinics that you work for. Sima Dental, S-I-M-A, Miles of Smiles and my

office iSmile Specialist. Q. clinics? A. Q. A. Q. A. Q. Just at Antoine. Just at Antoine? And Sima Dental, too. Okay. We have a few patients. And are Sima, Miles of Smiles and iSmiles Do you see Medicaid patients at all of those

located near or in the vicinity of Antoine Dental? A. Q. A. (Witness shakes head.) No? Where are they? iSmile's in Sugar Land

Sima's in Channelview.

and Miles of Smiles in Houston near the Galleria. Q. A. Land. Okay. So, not too far way?

Well, Channelview is about 30 miles from Sugar

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Q. A. Q. Center? A. Q. A.

Okay. Yeah. And for the record, where is Antoine Dental

We have two offices. Okay. One used to be on 6206 Antoine. Another one

on Hillcroft. Q. A. apart. Q. Okay. So, as an orthodontist you see both Okay. They're both like 15 minutes, 20 minutes

private-pay patients -A. Q. A. Private pay. -- and Medicaid patients? And Medicaid, yes, uh-huh. JUDGE SEITZMAN: Doctor, if you'll be sure

and let counsel finish their question before you answer it because the court reporter only brought two arms today. So... MS. SILHAN: please. MR. RYTTING: MS. SILHAN: MR. RYTTING: Do we have R82? No, not -- not yet. And may I see it before you Okay. Let's pull up R82,

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present it to the witness? JUDGE SEITZMAN: impeachment exhibit? MS. SILHAN: exhibit. This is an impeachment Is this a direct exhibit,

I don't know the full purpose of whether we'd I have copies if you'd like to

like to offer it yet. see.

JUDGE SEITZMAN: MS. SILHAN: MR. RYTTING:

Be helpful.

Okay. And -It would also be helpful

JUDGE SEITZMAN:

for us to establish what we're impeaching other than his name and the location of the offices. MS. SILHAN: moment? JUDGE SEITZMAN: MS. SILHAN: MR. RYTTING: foundation. JUDGE SEITZMAN: I appreciate you You may. I apologize. I see no Okay. May I have just one

One second.

Objection, Judge.

standing; but if you'll remain seated, you'll be closer to the mic. Pull the mic close. MR. RYTTING: foundation -JUDGE SEITZMAN: Pull the mic closer. Pull the mic closer.

They haven't laid a

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MR. RYTTING:

They haven't laid a They're just throwing

foundation for this impeachment. it up as an exhibit. MS. SILHAN: Okay.

I'll be happy to offer

it into evidence, your Honor. JUDGE EGAN: Well, I think it's not --

it's not a current exhibit; is that correct? MS. SILHAN: It is not. it's being offered for

JUDGE SEITZMAN:

impeachment but the only thing he's testified to so far is his name -MS. SILHAN: Okay. -- and the location of

JUDGE SEITZMAN: the offices.

If you're thinking -MS. SILHAN: I apologize. It is out of

order. JUDGE SEITZMAN: MS. SILHAN: can take it down. Q. -- to impeach that -I'm sorry. Then we

Okay.

I can ask a few questions. When did you first learn

(BY MS. SILHAN)

about ectopic eruption? JUDGE SEITZMAN: please? A. Q. 2003, during my residency. (BY MS. SILHAN) Okay. Pull your mic closer,

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A. Q.

Yes. Did you study any particular texts that

discussed ectopic eruption in school? A. Q. A. Q. A. yes. Q. Okay. Do you recall what those texts -- how Of course. Okay. What were those texts?

The same ones that Dr. Tadlock presented. Okay. Proffit, Graber, the literature, of course,

they define "ectopic eruption"? A. I wouldn't agree that they define. They

describe what ectopic eruption was. Q. A. Q. Okay. Yes. In that case, we have a copy of what is It's a newer edition.

already in evidence as R30.

This is a fourth edition, which is the edition that I believe you studied; is that correct? A. Q. A. I don't remember. You don't remember? I don't know. MS. SILHAN: I don't remember. Okay. Then let's pull up

that last exhibit, please. JUDGE SEITZMAN: 82?

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MS. SILHAN: Q. (BY MS. SILHAN)

Yes, sir. Okay. Does that refresh your

recollection about the edition of the Proffit text that you studied? MR. RYTTING: A. This is my -JUDGE SEITZMAN: I appreciate the courtesy. If you'll stay seated -But just stay seated. Your Honor, this is --

You'll be a lot closer to the microphone and I'll be able to hear you. MR. RYTTING: I'd just like to hear her

lay the predicate for this exhibit. JUDGE SEITZMAN: She's asking him if this

helps refresh his memory as to which -JUDGE EGAN: Edition. -- edition he studied.

JUDGE SEITZMAN: So, we'll see where -A.

I bought this book after I graduated.

That's

the new one.

So, I did the one before but I think they

have the same general -Q. same? A. Q. They have the same, yes. Great. Okay. In that case we have excerpts (BY MS. SILHAN) Okay. Great. They have the

from the third edition, which would be the one you

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studied. A. Q. That's fine. Okay. That's fine.

That's in evidence as R30 and

Dr. Tadlock discussed that. A. Q. Yes, uh-huh. I have a copy, a hard copy of the edition that

you hold in that photo. A. Q. That's fine. May I -- you said that the definition of

ectopic eruption is the same; is that right? A. Q. A. Q. A. In this book. Okay. -- that much. Okay. I did not put all -- all of them -- all these It hasn't changed --

textbooks and try to compare piece by piece. Q. A. Okay. But the general concept is the same. Proffit

didn't changes -JUDGE SEITZMAN: microphone to you? Doctor, can you pull that

You're going to have to act like a Okay? Thank

singer where it's almost up to your lips. you. MS. SILHAN: May I approach? You may.

JUDGE SEITZMAN:

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Q.

(BY MS. SILHAN)

Do you see the highlighted

portion here? A. Uh-huh. JUDGE SEITZMAN: Would you, for the

record, describe which volume you're -MS. SILHAN: Yes. -- and what page you're

JUDGE SEITZMAN: showing him? Q. (BY MS. SILHAN) THE WITNESS: Page 139. JUDGE SEITZMAN: Q. (BY MS. SILHAN)

Would you like to do that? It's the fourth edition,

Thank you.

Could you please -- please

read the highlighted portion? A. Ectopic eruption occasionally malposition of a

permanent tooth but can lead to eruption in the wrong place. Q. This condition is called ectopic eruption. Okay. Does -- do you agree that that defines

ectopic eruption as eruption in the wrong place? A. That's a definition of Proffit and I agree

with it -Q. A. Q. A. Okay. -- in that case, yes. You agree with it? Yes. What's in Proffit -- I can't say I don't

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agree what's in Proffit. Q. Okay.

It's a bible.

I know we've heard a little bit of

conflicting testimony both yesterday and on Tuesday about whether ectopic eruption is too subjective to meaningfully define. Were you aware that your Proffit text discusses it on 13 separate pages? A. Q. A. Q. A. Q. A. Q. Yes. Yes? Okay.

I didn't know there were 13; but yes, I know. Okay. And three different chapters?

I know at least two chapters. Okay. Yes, uh-huh. Thank you. I'd like to discuss your practice of

scoring ectopic eruption in this case. MS. SILHAN: A. Q. Can we please pull up R83?

Score ectopic eruption on where? (BY MS. SILHAN) In the cases that we have,

the samples that we have. A. Q. A. Q. On Medicaid patients? On Medicaid patients. Based on Medicaid definition. So, you think -- you're asserting that

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Medicaid has a different definition -A. Q. A. Q. A. Yes. -- of ectopic eruption? Absolutely, yes. What is that definition? It's an unusual pattern of eruption such as

the high labial and the teeth and outside the lower axis of the tooth. Q. Okay. So, you don't use your orthodontic

schooling or background and the definitions you learned there when you treat Medicaid patients? A. No. Of course, I use the definition to treat Of course I use it. You are talking You were

the patients.

about the diagnosis.

HLD is diagnosis.

asking me a question about treating. diagnosis are different. Q. Okay.

Treating and

HLD is an index. I'll rephrase.

So, let me -- okay.

You diagnose Medicaid patients with different conditions than you would diagnose the same condition in a nonMedicaid patient? A. Q. A. That's not true. That's not true? No. Diagnosis is the same. Again, I don't It's an index. I think that you

consider HLD as a diagnosis tool. Q. Okay, okay. I apologize.

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said that -- just now that HLD was a diagnosis tool? A. No, no. I did not say that. It's an index. HLD is not a

diagnostic tool. Q. A. Q. Okay.

It's a hematological index. Do you -- do you apply a definition of ectopic

eruption when filling out the HLD index? A. Based -- based on the Medicaid definition,

yes, I do. Q. Okay. And you're asserting here that Medicaid

defines ectopic eruption in a different way than all 13 pages of that Proffit text in front of you? A. Q. And I have that proof. What is the proof? I -- actually I'll take

that back. A.

I'd rather just clarify this point.

I would like later to explain to the Judges

what other proof. JUDGE SEITZMAN: I'm sure your counsel has

made a note and will give you that opportunity but if you can just answer the questions. THE WITNESS: Q. (BY MS. SILHAN) Yes, I will. Okay. So, you do not

diagnose Medicaid patients in a different manner than you diagnose private pay patients? A. Absolutely not.

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Q. A. Q. correct? A. Q. iSmiles? A. Q.

At iSmiles -Uh-huh. -- you do not see Medicaid patients; is that

No, no. Are you familiar with your website on the

Yes. Do you recall whether you describe any

particular diagnoses on that website? A. Can you be, please, more specific or if you

can show me what you're talking about because this website has a lot of things -Q. A. Q. I'd be happy to. -- and I don't remember what's on it. Absolutely. That's a fantastic idea,

actually. MS. SILHAN: MR. RYTTING: to show the witness? MS. SILHAN: I -- absolutely. Let's go off the record Can we pull up R85, please? Can I see what you're going

JUDGE SEITZMAN:

just a second, please, while we're doing that. (Off the record) JUDGE SEITZMAN: All right. Is there --

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MR. RYTTING:

She -- she want -- I take it If she wants to

she wants to refresh his memory.

refresh his memory she can hand him the document, have him look at it and then she can take it back. doesn't need to be displayed. JUDGE SEITZMAN: As I understand it's a It's from R28. It

document that's already in evidence. It's two pages. MS. SILHAN: MR. RYTTING: evidence, your Honor. JUDGE SEITZMAN: impeachment purposes only. JUDGE EGAN: Yeah. It is.

I don't believe it's in

It was for

But he asked to see it. But he asked to see it.

JUDGE SEITZMAN:

So, we're going -- we're going to allow him to look at it. MS. SILHAN: May I put it on the screen -Yes.

JUDGE SEITZMAN: MS. SILHAN: hard copy? JUDGE SEITZMAN: witness have a copy? MS. SILHAN: that copy. No.

-- or would you prefer the

Yeah.

Well, does the

I was asked to withdraw

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JUDGE SEITZMAN: witness a copy.

Go ahead and hand the

The objection's overruled. Just one other objection.

MR. RYTTING:

I'm not -- it's still not a proper predicate for impeaching him. I have no idea -It's not being used for He -- she asked him a

JUDGE SEITZMAN: impeachment for this purpose.

question about the website and he asked to see it and so, she is offering him the portion of that. MR. RYTTING: Q. (BY MS. SILHAN) Yes, sir. Okay. We're looking at a

page from your website on iSmile; is that correct? A. Q. Yes. Okay. Up at the top of the screen you list

several conditions; is that right? A. Q. A. Q. A. Under braces, yes. Uh-huh.

For braces, that's right. Yes, uh-huh. Can you read from left to right? Spacing, crowding, overbite, open bite,

cross-bite, underbite. Q. Okay. Now, can you flip to the next page of

that document? A. Q. Uh-huh. Okay. And is this an example of crowding?

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A. Q.

Of course. Okay. MS. SILHAN: Can we pull up P20-13 next to

this? Q. (BY MS. SILHAN) Okay. That's crowding on

left, correct? A. Q. A. Yes, uh-huh. In a nonMedicaid patient? We opened this office back in October. So,

when I opened the office -Q. A. Q. A. Q. Yes or no, sir. Was it a nonMedicaid patient?

It's a Medicaid patient. It's a Medicaid patient? Yes. But you do not treat Medicaid at iSmiles. Is

that what you testified to earlier? A. Yes. But that's why I was explaining to you.

These patients are from Antoine -- Antoine Dental but because I don't have a good record -- when we start the office, it's a brand-new office, before and after. Q. A. Okay. So, I took my patients from Antoine and I put So, that's a Medicaid patient.

them on the website. Q.

Did you score that Medicaid patient as

crowding?

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A. Q. A. Q.

No.

I scored them as ectopic.

You scored that patient as ectopic? Yes. You gave him a different diagnosis because

he's a Medicaid patient? A. It's not a diagnosis. It's an index. Again HLD is not a

diagnosis.

This is one thing; this is

one -- another thing. Q. Okay. So, you do not apply or describe a

diagnosis on the HLD form? A. On the bottom there's a box that states

diagnosis. Q. A. have. Q. Okay. What is ectopic eruption? Is it a Okay. I write down there it's Class I or what they

diagnosis? A. tooth. Q. Okay. Is crowding a description of the It's a description of the position of the

position of the tooth? A. It's a quantitative measurement of how much One is description. One is

length and space we have.

a quantitative measurement of how much lack of space we have.

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Q. A. Q.

Okay. It's two different things. Okay. Did you diagnose crowding in the

patient on the right, do you recall? A. Oh, I don't know. You need, please, to show

me the record. Q. A. Okay. I'd be happy to.

Let me see all of it, please. MS. SILHAN: Okay. That's P20.

Q. A. Q.

(BY MS. SILHAN)

And I believe I can --

This is my patient? It is your patient, and I believe I can pull I have the hard copy as well. While you're doing that, I

that up for you.

JUDGE EGAN:

just want to -- you said crowding is a quantitative measurement -THE WITNESS: JUDGE EGAN: THE WITNESS: JUDGE EGAN: you. THE WITNESS: -- between the teeth and the Yes. -- of what? It's --

Of the lack of space -Of the lack of space. Thank

bone that support the teeth. JUDGE EGAN: THE WITNESS: Okay. Thank you.

Uh-huh.

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Q.

(BY MS. SILHAN)

This is your HLD form for

this patient? A. Q. A. Q. A. Q. A. Q. Correct, ma'am. Is that correct? Yes, uh-huh. Did you diagnose crowding? This patient is not for that HLD. No, it's not. Yes. Right. Can you -- okay. On the left can you, That's

please, pull up the photo one more time? P20-13. MR. RYTTING:

Objection, your Honor.

I --

with all due respect I cannot tell whether that photograph goes with the paperwork or with -JUDGE SEITZMAN: witness can -MS. SILHAN: at the bottom? JUDGE SEITZMAN: identify it -MR. RYTTING: Yes, sir. -- then I guess maybe we If the witness can Can we look at the Bate stamp Well, it's -- if the

JUDGE SEITZMAN: can move from there. MS. SILHAN:

Can we look at the Bate stamp

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at the bottom of the page on the left?

And the stamp

on the right is the one I'd like to look, at the bottom right of the page on the left. Thank you. Q. (BY MS. SILHAN) Did you diagnose crowding in

this patient? A. No. I put it as ectopic eruption. So, it is

crowded, yes; but on the HLD I put it as ectopic. Q. A. Q. right? A. Q. On the bottom, yes. Okay. Let's see that -- that diagnosis field. Okay. But the HLD is not --

A diagnosis. Okay. But there is a diagnosis field; is that

Did you diagnose crowding on this patient? A. I didn't put it as over there because it has

already been described under the HLD. Q. A. Q. Okay. I put -Let's go back to the HLD and see if it What did you score for crowding on

diagnosis crowding.

this patient, Dr. Kanaan? A. Q. Zero. Okay. So, you did not diagnose this patient Is that because this is a Medicaid

with crowding.

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patient? JUDGE SEITZMAN: need a verbal answer, Doctor. I'm sorry. Hang on. We

You shook your head but

we need a verbal answer for the record. A. I'm sorry. You keep saying you did not

diagnose on the HLD and he keep telling you HLD is an index to describe. Q. down. A. Q. A. Q. please. A. And could you, please, go all the way down We're mixing -- mixing two things. Okay. Well, I'd like to clarify. (BY MS. SILHAN) Okay. Let's -- let's scroll

See, I -Let's look at the diagnosis field on the HLD,

because it wasn't enough -- I want to show all the way down. See I put down Class II on the right upper -(Court reporter interrupted.) A. In the diagnosis, my diagnosis contains what's

inside the box and what's all underneath because the box is small. the right side. the right. Q. you got. (BY MS. SILHAN) I believe that's as far as So, I put the patient has Class II on The upper midline is 2 millimeter to

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JUDGE EGAN: ride his diagnosis. MS. SILHAN: THE WITNESS:

All right.

But I want him to

Okay, okay. And then it says blocked The

upper right three, cross-bite upper left five. patient need -- has a narrow jaw. patient needs rapid panel expander.

I explained as an RP After I'm done

with the expansion, I need to put an open core to fix the midline for upper right three. Patient might need And I put a note

destabilization to fix that Class II.

that the lower five roots are short based on the X ray. We don't diagnose only from the pictures. Q. A. (BY MS. SILHAN) Okay.

I take that whole and I put a note there

because of the roots are short start only -- start at the top on the beginning and then later catch the bottom because the top has most of the problem. Q. A. Q. patient? A. Q. A. Q. All what I told you is crowding. Yes or no? Yes. In the -Okay. Yes. Did you list crowding as a diagnosis in this Let's clarify for the Judges.

You diagnosed crowding on this HLD?

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A.

If I don't say crowding by itself and describe It's crowding. Why

it block -- what is block three? are you trying -Q.

Did you diagnose crowding on this HLD form

that you submitted to TMHP? A. Q. Yes. And you -- and you certified that it was true

and accurate? A. Yes. Any dentist who can read this or they

know that it's crowding. Q. Sir -JUDGE SEITZMAN: please. THE WITNESS: Yes, okay. Your attorney will give Just answer the question,

JUDGE SEITZMAN:

you a chance to explain it if he wants to ask you those questions. Q. (BY MS. SILHAN) So, you did not need to write

the diagnosis in the diagnosis box because your blank space for anterior crowding on this form would tell the reader of the form that you're diagnosing crowding in this patient? A. I should have placed zero. I should have

placed a zero. Q. You should have placed zero --

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A. Q. A. Q. A.

Yes. -- for crowding -Yes. -- to indicate there's no crowding? No. See, the manual says record the most So --

severe condition. Q.

The manual also asks you to list a diagnosis.

You listed -- you read several lines of text, correct, for the Judge -- for Judge Egan? A. Q. A. Q. Yes, uh-huh. Did any of those lines say crowding? No, it doesn't say -Were all of those lines describing your

diagnosis -JUDGE SEITZMAN: Counsel, Counsel, make

sure he finishes his answers before you cut him off. MS. SILHAN: Q. A. (BY MS. SILHAN) Oh, I'm sorry. You said no; is that correct?

It doesn't say crowding but it describes

crowding. Q. Okay. Let's actually pull up another example.

One moment while I find it. MS. SILHAN: Q. (BY MS. SILHAN) Can we pull up P5-0067? Okay. Let's read the

diagnosis box in this patient.

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A.

Class I crowding. MR. RYTTING: What -- pardon me. What

record are you -MS. SILHAN: This is P -- your Patient It's Patient 5 --

Number P -- 006 is the page number. I'm sorry. It's P5-006.

Would you like to see the

stamp at the bottom? MR. RYTTING: what the exhibit was. MS. SILHAN: MR. RYTTING: P5? P5-006. Patient 5 and it's your No. I just wanted to know

exhibit -- it's our exhibit number? MS. SILHAN: MR. RYTTING: Q. (BY MS. SILHAN) It's your exhibit. Okay. Let's go up and look at the Can you tell the

space for crowding on that form.

Court what you listed for crowding on this patient in the HLD index? A. I did not -- I put zero. I didn't put

anything on the crowding because the -Q. A. And did you score ectopic eruption instead? Yes. JUDGE SEITZMAN: Again, be sure he's

finished his answer before you start your next question.

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MS. SILHAN:

Okay.

I'm sorry.

JUDGE SEITZMAN:

Both -- both parties need

to slow down just a little bit for us. MS. SILHAN: Q. (BY MS. SILHAN) Okay. I'm going to ask you one more

yes-or-no question. this patient? A. Q. A. I did not. Okay.

Did you score anterior crowding on

Did you instead score ectopic eruption?

I followed the instruction on the manual what

it says, only record the severe condition. Q. A. Q. Okay. So, I put ectopic. And -- thank you. For this diagnosis, though, you listed crowding; is that correct? A. I put the diagnosis as crowding and the

description as ectopic. Q. Okay. Thank you. And I just want to go back

MS. SILHAN: quickly to P20-13. on a different page.

Actually I think the HLD might be P20-11, please. And I'd like to

do a side by side between P20-11 and P05-006. Q. (BY MS. SILHAN) Okay. So, in some cases you

do not think the reviewer of a form could tell it's

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crowding; and so, you write it in the diagnosis field; is that correct? A. Q. Could you, please, rephrase your question? Yes. When we were discussing the form on the

left, which is page -- the HLD for Patient 20 -A. Q. left. A. Q. A. Q. A. Q. Okay. You see it says P20-001 or 011 on the top? Yes. Okay. Okay. You explained that you did not need to list That's your HLD for patient 20. This one. -- you indicated -- this is the one on the

crowding; although -MS. SILHAN: bit. Q. (BY MS. SILHAN) -- you describe several other If you scroll down a little

conditions? A. Q. I didn't say that, no. You said that anyone reading this form would

be able to tell it's crowding; is that correct? A. Q. A. Yes. Okay. Any dentist --

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Q.

Now, on the form on the right -MR. RYTTING: He needs to finish his

answer, please. MS. SILHAN: I apologize. I thought I was

asking a yes-or-no question. A. Any dentist who look at this one he will

understand there's severe crowding with the case. JUDGE SEITZMAN: Doctor, it's going to go

a lot faster and your counsel will have a chance to ask you questions but if you're asked a yes-or-no question -THE WITNESS: Yes, sir. -- please try to answer

JUDGE SEITZMAN: yes or no, if you can. THE WITNESS:

Yes, sir. And if you need to

JUDGE SEITZMAN:

explain it, you can answer it and say, "But I need to explain it." THE WITNESS: Okay. Yes.

JUDGE SEITZMAN:

And counsel will figure

out what they want to do from there. THE WITNESS: Q. (BY MS. SILHAN) Yes, sir. Yes, sir.

But on the right on the form

with substantially less information, you needed to list crowding although you did not score it; is that

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correct? A. Q. A. Q. Say it again, please? Sure. -- the point you're trying to make. Okay. I'm not so concerned if you understand I don't understand --

the point.

I'd just like to clarify the facts. On the HLD form on the right --

A. Q. A. Q. A. Q. A. Q. A. Q. A. Q. A. Q.

Uh-huh. -- you do not score crowding; is that correct? Correct. You diagnose crowding; is that correct? Correct. You list a score for overjet, correct? Correct. A score for overbite? Correct. A score for ectopic eruption? Correct. For a total of 27 points? Correct. Okay. But you felt that you needed to explain

that that was crowding, correct, although you did not score it? THE WITNESS: Q. (BY MS. SILHAN) May I explain something? Could you answer the question

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first and then explain, please? A. Q. Say the question again. Could you read the question one more time. (Requested material was read back as follows: "QUESTION: Okay. But you felt that you

needed to explain that that was crowding, correct, although you did not score it?") JUDGE SEITZMAN: Hang on. Hang on. Make

sure she has a chance to get back to her keyboard. A. Q. A. Q. A. Q. A. Q. Yes. (BY MS. SILHAN) Okay. Thank you.

So, can I explain now or... I believe that you've -That's fine. -- spoke substantially about these HLD forms. Okay. Okay. That's fine. Thank you.

I'd like to discuss -- I know we just talked about crowding and the difference between a diagnosis for Medicaid and an HLD -- I'm sorry -- an HLD index for Medicaid and a diagnosis for private-pay patients. I'd like to turn to how you apply the definition of ectopic eruption in the 28 patients of

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the 26 on this sample that you scored. JUDGE SEITZMAN: MS. SILHAN: You mean 26 of the 28? Of the 63. The

I'm sorry.

28 of the 63 that you scored. Q. (BY MS. SILHAN) I've got a quick visual and So --

we can go one by one. A. Excuse me.

I'd like to state one -- what's in

the exhibit. 21 cases. cases. Q. A. Q.

In the exhibit that we submitted has only

So, I want to stick, please, with the 21

We have 63 cases? No, 21 that are under my name. Okay. The exhibit --

We can -- we can go through these cases

if you -A. Q. A. Q. A. Q. The 21 please, yes. Okay. Yes. Okay. Yes. Did you score Patient 5? Would you like to Did you score Patient 2? There -- yes, uh-huh.

look at the HLD forms of those cases? A. I think -- I think so. MS. SILHAN: need to see them? MR. RYTTING: Yeah. I'd like to see them. They're your records. Do you

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MS. SILHAN:

Your Honor, may I approach to

give him the HLD form that he's requested to see? JUDGE SEITZMAN: look at them first. Let's just let counsel

These are all HLD scores that are

in the record, Counsel? MR. RYTTING: Yes, yes. I'm going through

them quickly just to make sure the signature's on these. MS. SILHAN: Well, I'd like the witness to

describe his signature on the forms. JUDGE SEITZMAN: Well, but it was just a

courtesy of what you asked the witness. MS. SILHAN: Q. (BY MS. SILHAN) Oh, absolutely. Okay. Yes.

So, we're going to

look at the HLD for Patient 5. A. Uh-huh. MS. SILHAN: P05-006. Q. (BY MS. SILHAN) Okay. Do you see your Stacey, can you pull up

signature on that page? A. Q. Yes, uh-huh. Okay. Thank you. Stacey, can you -I'd like to -- do you recall

MS. SILHAN: Q. (BY MS. SILHAN)

whether you scored Patient 6, whether you -- I

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apologize. A. Q. A. I'm sorry. We can -- we can pull it up. Yes. MS. SILHAN: Q. there? A. Q. Yes, uh-huh. Okay. Thank you. P -Do you recall whether you (BY MS. SILHAN) P06 is the first page. Is that your signature down

MS. SILHAN: Q. (BY MS. SILHAN)

scored Patient 7? A. I don't remember. Can you show it to me? If

it's in the list, then yes. JUDGE SEITZMAN: Maybe, Counsel, if you

want to make it go a little bit faster, you might give him the scoring sheets and show him the patients and just get that confirmed. Might be easier for him just

to look at his signature if you've got those. MS. SILHAN: I'd be happy to. JUDGE SEITZMAN: Right. You can do that Sure. There's just several.

all at one time and you can verify that those are the patients. MS. SILHAN: Okay.

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JUDGE SEITZMAN: a second while we do this? (Off the record) Q. clarify. (BY MS. SILHAN) One moment. JUDGE SEITZMAN:

Can we go off the record

I think I can actually

And let me just note

while you're looking, what we did while we were off the record, you handed the witness some scoring forms; and so, he had an opportunity, while we were off the record, to go through and confirm whether or not he was the one who scored various patients. Is that correct, Doctor? THE WITNESS: Q. (BY MS. SILHAN) Yes. And you handed me one form

that you did not score, correct? A. No. You asked me who the signature is and

that's not my signature. Q. sign it? A. No, I didn't say that. Can you show it to me again? Nazari's signature. Q. Correct. So, you handed me one form that you That has Dr. Are you saying you scored the form but not

did not sign; is that correct? A. Yes, I handed you one -- one -- not my form.

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this is not my form. Q.

How do you --

I'm agreeing with you. JUDGE SEITZMAN: Doctor, she's asking you:

The form that you handed her back was a form that you did not sign. THE WITNESS: Correct. Yes.

JUDGE SEITZMAN: signature? THE WITNESS: Q. (BY MS. SILHAN)

It was not your

Yes, uh-huh. That was one form out of the

group that I handed you, correct? A. Q. A. Q. Yes, uh-huh. You signed all the rest, correct? Yes, uh-huh. All right. That was Patient 57. I apologize

for including that patient. So, to confirm, you did score Patients 2, 5, 6, 7, and 8? you the forms. These are patients -- I mean, I handed I can -Give him a chance to look

JUDGE EGAN: through. A.

It doesn't say 2, 5, 6.

But I'll go with what

you said that I did. There's no numbers. Q.

It doesn't say here 2, 5. All it says is 11-09, 11-15. Okay. We can -- I'll be

(BY MS. SILHAN)

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happy to pull up the HLD on the screen. forms I just handed you. A. Q. Yes, yes.

These are the

You only handed one back and explained that

you did not sign only one of the 28 that I gave you. Okay. A. Yes. JUDGE EGAN: And he's -- he's saying that

the numbers that you're using -- you need to show him where they are on that form so he can -MS. SILHAN: The name -- these are -- if I

might explain to the Court, these are petitioner's exhibits. They are not redacted and they do not have

patient numbers on them. JUDGE SEITZMAN: I understand but you've

got the redacted electronic version that you're going to put up so we -- right? MS. SILHAN: Yes. I can -- I can do that. So, as you go through and

JUDGE SEITZMAN:

talk to him about it, you're going to put up the electronic version that we can confirm the patient and exhibit number. MS. SILHAN: Okay. So, I've prepared a

summary and we can look at the files. So, Stacey, can you pull up -- yes. Yes,

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Please, R83.

This is not in evidence. MR. RYTTING:

It's a summary.

I'd like to see that summary

before you put it up. MS. SILHAN: to help the Court. Your Honor, this is a summary

He just -All he's asked to do

JUDGE SEITZMAN:

is -- counsel has asked to see a copy of the document you're putting up. MS. SILHAN: Okay. I have it in

spreadsheet form if he'd like to see it. MR. RYTTING: It's not the -- that's not

going to be the form you put it up? MS. SILHAN: spreadsheet form. I can put it up in the

We prepared a graphic that shows the

exact same information with Dr. Kanaan's handwriting on it. JUDGE SEITZMAN: If you've got the

spreadsheet, just give him a copy of the spreadsheet, please. You can keep -- you can keep the summary. MS. SILHAN: the summary up, R83? MR. RYTTING: We have some questions about Okay. Can you, please, pull

going and questioning the witness about a summary that they've -- they've created. If they want to go patient

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by patient, they can do so.

I do not -- I can't I'd like to show it --

comprehend what this is about. JUDGE SEITZMAN: Counsel. So... MR. RYTTING:

You're not on the stand,

May I approach the Court -No.

JUDGE SEITZMAN: MR. RYTTING: summarized? JUDGE SEITZMAN: summary.

-- and show you what's been

No.

Counsel, it's a

If it's a summary of the data that's in the

record, we're going to allow Counsel on cross to go through it and we'll see what the witness has to say about it but the fact that you don't understand it doesn't necessarily make a difference at this point. Let's go on. MR. RYTTING: different. JUDGE SEITZMAN: ruled. MR. RYTTING: Q. (BY MS. SILHAN) Okay. Dr. Kanaan, to describe what I have ruled. I have She's handed me something

we're looking at this is a bar chart and it shows the possible points for ectopic eruption on the left. you see that? A. Yes, uh-huh. Do

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Q.

Okay.

Do you see at the bottom a number?

That's the patient number; is that correct? A. Q. A. Q. A. Q. Yes, uh-huh. Okay. Yes. Do you see below that a grid? That's mine, too.

That's yours? Uh-huh. Okay. So, we're looking at Patient 2 and you

scored 24 points for ectopic; is that right? A. Q. Uh-huh. And you have the HLD form in front of you, if

you'd like to consult it. A. Q. Yes, uh-huh. Counsel also has a copy. JUDGE SEITZMAN: Doctor -- excuse me -- if

you're going to say something, you need to speak up loud enough for the mic to pick it up, please. Q. (BY MS. SILHAN) Can you explain what this

grid represents at the bottom? A. You need to pull the pictures. I cannot just

do it off of this one. Q. You have the HLD forms in front of you. I'll

be happy to also pull up P02. A. Q. No. I want --

It's the first HLD form in front of you.

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A. it.

-- the pictures of the patients how I scored

I can't -Q. I'm not asking you to explain how you scored

it.

I'm asking you to tell us what the marks that you

made on the HLD forms with your signature what those marks mean. A. It tells that we have eight ectopic. MR. RYTTING: Objection, your Honor.

This -- this summary is not a document that he created. We have documents that are -- that have exactly that information on it that contain his other scores that will allow him to comment and explain. JUDGE SEITZMAN: opportunity. MR. RYTTING: this -JUDGE SEITZMAN: You'll have your Under Rule 106 I don't think You'll have your

opportunity on -- I guess I'm calling cross direct since we're kind of doing it backwards. So -- but it's

a summary and it comes from the evidence that's in the record. it. And she's entitled to ask him questions about So... Would you repose your question,

They're his marks. Go ahead.

Counsel? MS. SILHAN: Yes.

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Q.

(BY MS. SILHAN)

Can you explain to the Court

what the grid below Patient Number 2's bar represents? A. It represents that this patient has eight

ectopic teeth based on my comprehensive diagnosis and these eight teeth are the upper and lower central and lateral incisors. Q. Okay. So, in laymen's terms those are the

upper four front teeth? A. Q. A. Q. correct? A. Q. No canines. Okay. MS. SILHAN: Q. (BY MS. SILHAN) Let's pull up P02. We're looking at your HLD No. Yes. And the lower four front teeth, correct? Yes, uh-huh. But not the canines on either side; is that

form for Patient 2, correct? A. Q. Yes, yes. Okay. Uh-huh.

Does the grid on this HLD form

represent the same information, is it the same grid as the one on the graph? A. Q. Yes. Okay. Thank you.

And to confirm, your score for this

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patient was 24 points for ectopic teeth? A. Q. Yes. And the upper four teeth were all ectopic.

The upper four front teeth were all ectopic? A. Q. ectopic? A. Yes. MS. SILHAN: Patient 5, please. Okay. Let's move on to Yes. And the bottom four front teeth were also

Let's just look at P05-006 on the

left and we can keep R83 on the right, if that's okay. Q. (BY MS. SILHAN) Can you read your HLD ectopic

eruption score for Patient 5? A. This patient based on my comprehensive

evaluation has eight ectopic teeth, the four front teeth on the top and four teeth on the bottom. score 24. Q. Okay. Thank you. Is that the same score as Total

Patient 2? A. Q. It's the same score as Patient Number 2. And the same teeth are ectopic as Patient

Number 2, correct? A. Q. Yes. Thank you. Let's look at Patient 6 now.

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MS. SILHAN:

Pull up 06 on the left and we

can keep R83 on the right. Q. (BY MS. SILHAN) Can you, please, read us your

score for ectopic teeth on this patient? A. This patient based on my comprehensive

evaluation has eight ectopic teeth, the four front and the four bottom, total point 24 points. Q. A. Q. moment. -- for Patient 5? A. Q. A. Q. Yes, it is. And Patient 2? Yes, it is. Okay. And the same teeth are ectopic in all Is that the same score -Yes, it is. -- for -- let me finish my question one

three patients; is that correct? A. Q. Yes. Thank you. MS. SILHAN: P07-003 on the left. Q. (BY MS. SILHAN) Can you, please, read your Let's do 7 now. That's

ectopic score for this patient? A. Based on my comprehensive evaluation, this

patient has eight ectopic teeth, the four front and the

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four bottom ones, total score 24. Q. A. Q. A. Q. A. Is that the same total score -Yes, it is. -- as you had for Patient 6? Yes,it is. Patient 5, Patient 2? Yes. JUDGE SEITZMAN: be clear. Counsel, I just want to

Are you asking if it's the same total score

or the same ectopic eruption score? MS. SILHAN: for ectopic eruption. ectopic eruption. Q. A. Q. (BY MS. SILHAN) Yes. Thank you. Were the same teeth scored as ectopic in Patient 7 as Patient 6? A. Q. A. Q. A. Q. Yes. As Patient 5? Yes. As Patient 2? Yes. Thank you. MS. SILHAN: Okay. On the left let's pull Is that correct? I apologize. I'm sorry. The same score

The same score for

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up Patient 8, P08. Q.

It's the first page of the file. Dr. Kanaan, can you, please,

(BY MS. SILHAN)

read your ectopic eruption score for this patient? A. Based on my comprehensive evaluation, this

patient has eight ectopic teeth, the four front ones and four bottom ones, total score 24 for ectopic eruption. Q. We can cut to the chase here. That's the same

score for Patient 2, 5, 6 and 7? A. Q. Yes. Okay. And the same teeth are ectopic in 2, 5,

6 and 7 and the current Patient 8? A. Q. Yes. Okay. Thank you.

Is this a pattern, Dr. Kanaan? A. Q. What do you mean by "pattern"? Well, we're just looking at the way you score

ectopic eruption, which makes up a significant number of scores on these sheets that we've looked at. A. Q. A. That's -Is this a pattern? That's a description of these four patients

that you pulled. Q. Okay. So -- so, you wouldn't say that five

patients represents a pattern?

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A. Q. A.

No, absolute -Okay. A pattern -MS. SILHAN: Stacey, can you scroll

over -JUDGE SEITZMAN: cut him off. MS. SILHAN: THE WITNESS: Oh, I'm sorry. Can I explain further? No. You just started to Excuse me. Hang on. You

JUDGE SEITZMAN:

say, "No, absolutely" and then I think you got cut off. THE WITNESS: I'm okay. Do you want to finish

JUDGE SEITZMAN: that answer right now? THE WITNESS: I'm done with my answer. Q. (BY MS. SILHAN) MS. SILHAN: Stop, please.

No, no.

It's not an answer.

Thank you. Stacey, can you scroll over?

Oh, let's keep 9 through 25 on the page. Let's pull up -- can we pull up on

Okay.

the left, keeping this on the right, P09-003? Q. (BY MS. SILHAN) Dr. Kanaan, can you, please,

read your ectopic eruption score on this patient? A. Based on my comprehensive evaluation, this

patient has eight ectopic teeth, four front, four

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bottom, total score 24. Q. Okay. Now, do you recall that the previous

patient -- five patients we looked at did they all have a score of 24 as well? A. Q. ectopic? A. Q. Yes. Thank you. MS. SILHAN: P18. Q. (BY MS. SILHAN) Can you, please, read your Patient 18 on the left now, Yes. Did they all have the same teeth scored as

score for ectopic eruption on this patient? A. Based on my comprehensive evaluation, this

patient has eight ectopic teeth, the four front, four bottom, total score 24. Q. Thank you. Is that the same as Patient 9 for both the score and the teeth that were ectopic? A. Q. A. Q. A. Q. Yes. Is that the same as Patient 8? Yes. Is that the same as Patient 7? Yes. And 6?

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A. Q. A. Q. A. Q.

Yes. And 5? Yes. And 2? Yes. Okay. JUDGE SEITZMAN: Counsel -- and I'm not

meaning to tell you how to do your direct or cross here -- but it'll save us a little bit of time since whoever the previous -- we've kind of got a chain of A through F now and we know that they're all equal. So,

I don't think we have to go back through each one, as long as the subsequent one -MS. SILHAN: Sure. -- is the same --

JUDGE SEITZMAN: MS. SILHAN:

Great. -- as the prior one.

JUDGE SEITZMAN: MS. SILHAN:

Got it. Then they should all be

JUDGE SEITZMAN: equal. MS. SILHAN:

Thanks.

Let's pull up patient 20 on the left. That's 20-011 is the HLD. Q. (BY MS. SILHAN) Can you, please, read your

total HLD ectopic eruption score for this patient?

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A. Q.

27 points. Thank you. Which teeth were ectopic in this patient?

A. Q. A.

The five top and the four bottoms. And of the five top, do you mean -It's upper right canine, upper right lateral,

upper right central, upper left central, upper left central lateral. Q. Thank you. This score is different from the others, correct, that we've looked at -A. Q. Yes. -- for ectopic eruption? Thank you. MS. SILHAN: P21-006. Q. (BY MS. SILHAN) Dr. Kanaan, can you, please, Let's look at 21. 21 is

read your ectopic eruption score? A. Q. A. Q. 24. And which teeth were ectopic? The four front, four bottom. Thank you. Now, this is different than Patient 20, correct? A. The score is different, yes.

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Q. A. Q.

But the same as all the others we looked at? The scoring, yes. Thank you. MS. SILHAN: Patient 24. HLD is at

P24-014. MR. RYTTING: Your Honor, I'd like to -I'd like to

I'm not sure that he did Patient 24.

confirm that, lay the predicate for that. JUDGE SEITZMAN: the scoring sheet? Can -Yes, we do. Please show him the Can you -- do you have

MS. SILHAN:

JUDGE SEITZMAN: scoring sheet. Q.

See if that's his -Is that your scoring

(BY MS. SILHAN)

signature? A. Yes, it is. MS. SILHAN: Q. (BY MS. SILHAN) Is that okay? Can you, please, read your

ectopic eruption score? A. Q. A. Q. 24 points. Which teeth were ectopic in this patient? Four front, four bottom. Okay. MS. SILHAN: left? Oh, other way. Stacey, can we scroll to the

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Q.

(BY MS. SILHAN)

Do these ten patients

represent a pattern of scoring? A. Q. No. Okay. Then let's continue see if -- if

there's anything different. MS. SILHAN: P64-025, please. There's a little confusion. Q. (BY MS. SILHAN) This patient file, P -- P25 Let's start with Patient 25,

did not have an HLD score sheet in it but the separate attachments that were provided to us in discovery in this case or provided as exhibits in this case they did contain an HLD score sheet that wasn't provided to OIG. MS. SILHAN: MR. RYTTING: Let's go to one down -We need to object. She

needs to ask him if he recognizes this document. Q. (BY MS. SILHAN) Is this your signature on the

document? A. Q. Yes. Can you tell us what you scored for ectopic

eruption on this patient? A. Q. 24 Points. Can you tell us which teeth were ectopic on

this patient? A. The four -- four front, four bottom.

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Q.

Is that the same as all the other patients we

looked at, except one? A. Q. A. Q. Same scoring? Yes. Same scoring number, yes. Thank you. MS. SILHAN: P27-005. Q. (BY MS. SILHAN) Can you read your total Let's look at Patient 27,

ectopic eruption score for this patient? A. Q. 24 points. Thank you. Can you tell us which teeth were ectopic on this patient? A. Q. The four front, four bottom. Thanks. Is this the same as all the other patients, except Patient 20? A. Q. Yes, same scores. Thanks. MS. SILHAN: Let's look at Patient 28.

That's P28-013 is the HLD. Q. (BY MS. SILHAN) Can you read your total

ectopic score for this patient? A. 24.

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Q. ectopic? A. Q. chase -A. Q. one? A. Q.

Can you tell us which four teeth you scored as

The four top, four bottom. This is the same -- you know, cut to the

Yes, yes. -- this is the same as all the others except

Yes. Thanks. MS. SILHAN: Let's do 29. Unless -- we

can hold off on the 29. Q. A. Q. (BY MS. SILHAN) Do you see a pattern here?

I don't see a pattern, no. Okay. 29, what's your total score for ectopic

eruption? MS. STACEY MANELA: MS. SILHAN: P29-008. A. Q. 24 points, the four upper, four lower. (BY MS. SILHAN) The same as all the others, What page on 29? It's

Oh, I apologize.

except Patient 20; is that right? A. Q. Yes. Okay. MS. SILHAN: Patient 30, please. That's

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P30-008. Q. (BY MS. SILHAN) Can you, please, read your

ectopic eruption score for this patient? A. Q. A. Q. A. Q. 24 points, four upper, four lower. Again, the same as the others -Yes, please. -- except that one? Yes. Okay. We're going to go on -- do you see a

pattern here? A. Q. I don't see a pattern, no. Okay. Thank you.

Let's scroll over a little bit on the right and see Number 34. And there's two 34s because

there were two HLD score sheets in this patient's file. So, let's look at the first one. That's P34-017.

Can you read the score for this patient? A. Q. 24 points. Were the same teeth scored as ectopic as the

others -A. Q. A. Q. Yes. -- minus 20? Yes. Thanks. Let's look at the second HLD score P34-0008.

sheet for this patient.

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Can you read your total score? A. 27 points. MR. RYTTING: Again, just for the record,

did she say total ectopic score? JUDGE SEITZMAN: I think we just got a

running understanding that we're just talking about ectopic scores at this point. Q. (BY MS. SILHAN) Can you tell us which teeth

were scored ectopic on this patient for this second HLD? A. The four front, plus the upper right canine

and the lower four teeth. Q. Okay. So, this one is not like the others,

except -A. Q. I added one tooth. That's right. JUDGE EGAN: at the bottom? THE WITNESS: MS. SILHAN: Yes, it is. Yeah. Aside from the one at Okay. Is that his signature

the very end of my list here, which we -- we took out and you identified, we've gone -- these are from the HLDs he's viewed and verified his signature on just to -JUDGE EGAN: Just wanted to make sure

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because it looked different. MS. SILHAN: Okay.

Let's look at Patient 35, please. JUDGE SEITZMAN: We're usually trained in

handwriting analysis but sometimes we slip. MS. SILHAN: P35-003, please. On 35, the image below

And I apologize.

the score is incorrect on our chart on the right. You'll -Q. (BY MS. SILHAN) Can you tell us what your

ectopic eruption score is for the HLD on Patient 35? A. Q. A. lower. Q. Thank you. For the record under the summary 24 points. And which teeth? The four upper -- the four upper and the four

on 35, that's not a correct image, right? A. Q. A. Q. Yes. Instead it's this one on your form, correct? Yes. Which is the four upper and four lower; is

that right? A. Q. Yes, yes. Okay. Thank you. Let's look at 36. That is

MS. SILHAN:

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P36-011. Q. (BY MS. SILHAN) Can you, please, read your

ectopic eruption score for this patient? A. Q. 24 points, the four upper and the four lower. And that's the same as all the others, except

Patient 20 and except for the second HLD in Patient 34? A. Q. A. Q. Yes. Do you see a pattern here? No. Okay. MS. SILHAN: Q. (BY MS. SILHAN) Let's go to 37, P37-015. Can you read your score for

ectopic eruption? A. 21 points, upper centrals, the upper left

canine and the lower four front teeth. Q. Okay. Thank you.

Before we move on, I just want to do a little quick math. Okay. So, this score is different than

most of the others we've looked at; is that correct? A. Q. A. Q. A. Yes. And it has different teeth, correct? Yes. Okay. Yes. And that's Patient 37, right?

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Q.

Okay.

We've looked at 20 HLD score sheets and

19 patients so far; is that correct? A. Q. I'm assuming, based on your calculations. Okay. Well, I'll represent to you that that's

what we've looked at; and if you'd like to count your sheets, you may. Out of those 20 HLDs and 19 patients, 17 have scored 24 for ectopic eruption; is that correct? We can go back and look. three. A. Q. A. Q. Yes, yes. Has there not? Yes. Okay. Thank you. I believe there's only been

And they all have the same teeth described as ectopic; is that correct? A. Q. A. Yes. Do you see a pattern? No. MS. SILHAN: one. Q. Patient 39, 39-008. (BY MS. SILHAN) Can you read us your ectopic Okay. Let's go to the next

eruption score for this patient? A. Q. 24 points. Which teeth are those that are scored ectopic?

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A. Q. A. Q. A. Q.

Four front, four bottoms. Okay. The same as all the others --

Yes, please. -- minus three, correct? Yes. Thank you. Now, we can keep going. MS. SILHAN: Let's go to 41, 41-012,

please. Q. (BY MS. SILHAN) Can you read us your ectopic

eruption score? A. ones. Q. three? A. Q. Yes. Thank you. MS. SILHAN: Q. (BY MS. SILHAN) Let's do 42, P42-016. Can you read us your ectopic Okay. The same as all the others minus the 24 points. The four front top, four bottom

eruption score? A. Q. 24 points, the four front, four bottoms. Okay. The same as the others minus three

again, correct? A. Q. The same, yes. Okay. So, 20 have the same score. Three have

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different scores? A. Yes. MS. SILHAN: Q. (BY MS. SILHAN) Let's do 43, P43-006. We'll get through the rest of

these quickly. What's your total score for ectopic here? A. Q. A. 24 points, four top, four bottom. Okay. Yes. MS. SILHAN: Okay. Let's go on to the Like most of the others, correct?

next patient, 45, P45-008. Okay. on the graph. JUDGE SEITZMAN: 43 -- okay. same score. Counsel, did you say Well, can you pull up 45? It's not

I see what you're saying but it was the Did -- was it the same teeth? MS. SILHAN: Yes. It's the -Okay.

JUDGE SEITZMAN: MS. SILHAN: Dr. Kanaan. JUDGE SEITZMAN: THE WITNESS:

Oh, oh, I'm sorry.

Dr. Kanaan, was -Yes.

Yes, it was.

JUDGE SEITZMAN: ectopic as all the others? THE WITNESS:

43 was the same score for

Yes, sir.

Yes.

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JUDGE SEITZMAN: that. THE WITNESS: one. JUDGE SEITZMAN:

The graph isn't showing

This doesn't go with that

I know.

But I'm just

looking at the graph for 43 versus 42 and 43 on the graph. THE WITNESS: incorrect. JUDGE SEITZMAN: MS. SILHAN: 43 seems higher than 42. It I believe The bar's -- the bar's

Yeah, you're right.

should be -- it should just go up to the 24.

that -- actually what's labeled as 43 is meant to be this Patient 45. Q. (BY MS. SILHAN) Can you read your total score

for 45 on the left? A. Q. A. 27 points. Okay. And which teeth were ectopic?

The four front plus the upper left canine and

the four bottom ones. Q. Thank you. Let's look at 46. JUDGE SEITZMAN: So, just so the record's

clear, we had 42 and 45 as 43, just a patient of his that he scored that's not -- is omitted from the graph

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or was it -MS. SILHAN: It is. It's misnumbered and

what's listed there, the patient number and what's below it, the grid, those are for patient -- that's correct. The graph is -- is what should be 45, which

is on the left here and it's scored at 27. JUDGE SEITZMAN: tooth here; is that correct? MS. SILHAN: would represent -JUDGE SEITZMAN: We have a correct root So, we have a missing Okay.

We have a missing bar that

but a missing tooth; is that correct? MS. SILHAN: Right.

And I do have this in a spreadsheet form, which contains all the patients. provide that summary. JUDGE SEITZMAN: okay. Thank you. That's okay. That's I'd be happy to

I just wanted to be clear that it That the -- that there

wasn't just a misnumbering.

should have been another column for -MS. SILHAN: That's right. -- for 43. Another column and it

JUDGE SEITZMAN: MS. SILHAN: Yes.

would be at the score we've been seeing at 24. Q. (BY MS. SILHAN) Okay. We're at 45. Can you

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read -- oh, we've already done that, I believe. MS. SILHAN: A. bottom. Q. (BY MS. SILHAN) So, this is different than Okay. 46, 46-013.

36 points, the six upper front and the six

most of the others, correct? A. Q. Yes. Thank you. MS. SILHAN: Q. (BY MS. SILHAN) 47, P47-007. Can you tell us your total

ectopic score for this patient? A. Q. A. Q. 24 points, the four upper, four lower. Is that the same as most all but -Yes, it is. -- the four? Thank you. MS. SILHAN: last one. This -57, the bar on the right is -- represents the patient that -- that Dr. Kanaan pulled out of the pile and told me he did not sign that HLD. But when we zoom out, I'd like to point out that the score is the same as the one that's missing that Judge Seitzman pointed out. would look the same. So, the bar Let's do 56. This'll be our

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MR. RYTTING: Honor. I'm not sure --

She's testifying, your

JUDGE SEITZMAN:

Well, we'll -- we'll Thank you.

instruct the jury not to listen. MR. RYTTING: Okay.

JUDGE SEITZMAN: MS. SILHAN: P56-013. Q. (BY MS. SILHAN)

You may proceed.

Thank you.

Okay.

Can you read your

total ectopic score for this patient? A. Q. A. Q. 24 points, four front, four bottom. Okay. Thank you. Do you see a pattern here?

I don't see a pattern. Okay. Let's zoom out and make R30 -- I'm Now, just to clarify

sorry -- 83 our whole screen.

there was one score sheet that we reviewed that was not numbered on this graph, correct? A. Q. A. Q. A. Q. Yes. And that score? 45 or -Excuse me? The 45 patient? Yes. Patient 45 was not listed and Patient 43 had the incorrect value, correct? They were

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transposed? A. Q. A. Q. As your sheet -Do you recall? Yes. Okay. And then on Patient 57 at the end you

confirmed that that was not your score sheet; is that right? A. Q. That's Dr. Nazari's signature, yes. Okay. But just -- just to clarify, that

scored at 24 points, right? A. Q. A. Q. Which one? 57. Yes. Okay. That -- when we correct the graph it You don't see a pattern?

will look the same. A. Q.

I don't see a pattern. Okay. Then let's look at some specific

patient examples. MS. SILHAN: photos for Patient 7? Can we pull up on the left That's P07-05 and Patient 34 on

the right, P34, first page. And if I may, this might be clarifying because I'd like to ask him questions about what we just went through. I have the summary table here with May I provide it?

the correct information.

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JUDGE SEITZMAN: MS. SILHAN: Q. (BY MS. SILHAN)

You may. I will do.

Okay.

I'm crossing out 57 since

that one was not yours. MR. RYTTING: Is this the -- oh. She's just providing it

JUDGE SEITZMAN:

to the witness so he can reference it, since that other screen's been pulled down. Q. (BY MS. SILHAN) Okay. So, Patient 7 is on

the left -A. Q. correct? A. Q. A. Q. I'm assuming. You can read -- okay. Yes. Thank you. And both of these patients have scores of 24 for ectopic eruption, correct? A. Q. A. Q. A. scores. Yes. And the same eight teeth, correct? I'm taking your words. Okay. Yes. You can please feel free to consult. So, 34 that's the one that has two On the top? Uh-huh. -- and Patient 34 is on the right; is that

So, if you view the first one --

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Q. A. Q. A. Q.

Well, that's right. Yes. But this is one of the scores, correct? Yes, 24, yes. So, just to demonstrate for the Court, the

front four and the bottom four are ectopic -A. Q. A. Q. Yes. -- in both patients? Yes. Correct? So, all eight front teeth in both of these patients erupted in the wrong place? A. Q. Yes. Okay. Let's look at Patient 7's photos and Is there

we've got Patient 7 up close on the left.

anything unusual about the right upper canine? A. Q. A. Q. A. Q. Are you asking me? Yes. The upper right canine? Yes. I can't see. I don't know.

You don't know? Okay. But you do know that the front

eight teeth are unusual? A. Yes, uh-huh.

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Q. A. Q. 37? A. Q.

Okay. Yes. Do you know whether Dr. Ornish scored Patient

I don't know. You don't know. MS. SILHAN: All right. Let's pull up

P72-34.

I'm sorry. Yes.

It's Patient 34, not Patient 37.

We compared Patient 7 to Patient 34

and I'd like to pull up... Oh, no. Let's -- let's put the photos

for -- or the HLD for Patient 34 on the left, P34-017, please. Okay. And then let's pull up Dr. Ornish's

score on the right, P72-34. A. Q. So, you're putting up 34? (BY MS. SILHAN) Yes. We're on 34. Both of

these are for 34. Can you read Dr. Ornish's score for ectopic eruption? A. He scored -- he scored 18 points upper right, Lower right -- the

two and three and lower five teeth.

lower right central lateral canine and the lower left canine. Q. Okay. Would you disagree with your expert's

opinion that this patient had nine ectopic teeth in

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this pattern? A. I would not use the word "disagree." That's how I scored it. That's

how we scored it. Q. A.

You did not score it the same, did you? I did not score the same. That's his opinion. MS. SILHAN: Okay. In place of Dr. That's -- that was

my opinion.

Kanaan's score sheet on the left, can we look at P34, just the pictures? picture, please. Q. (BY MS. SILHAN) So, he scored the right upper Pull you up the center bottom

and lower canines; is that correct? A. Q. A. Yes, he did. Okay. Yes.

And you did not? On the second one I

Remember I have two HLDs.

scored it. Q. A. You scored both canines on the second HLD? I only scored the cross-bite ones. I scored

the canine -Q. Did you score both the canines that Dr. Ornish

scored on the second HLD? A. Q. A. Q. I scored only one of them, the upper right. So, you disagree with Dr. Ornish's score here? I would not say I disagree. So, you did not feel that both right canines

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were in an unusual place? A. They might be but I did not put it. They

might be but I did not score it. the index. Q. Okay.

I did not put it in

Let's move on to two other patients.

These are from that universe of all the patients you scored that we've already discussed. look at Patient 42 and 57. for ectopic eruption. MS. SILHAN: P42-02. Q. score. Patient 42, the photos are at We're going to

They were both scored 24

And on the right let's do -- I'm sorry. (BY MS. SILHAN) You know what, 57 you did not So, why don't

That's the one we didn't score.

we cross that out. Let's move on to another comparison. apologize for that. MS. SILHAN: Let's look at Patients 25 and I

30; and as you may have guessed, they both scored 24 points for ectopic with the same teeth. the left 25-202 -- I'm sorry. and Patient 30 is P30-010. Q. (BY MS. SILHAN) So, both of these patients Patient 25 on

P25-002 are the photos

had the same unusual patterns of eruption, according to your HLD score sheets; is that correct? A. If it says so, yes.

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Q.

And are -- these four upper and lower teeth on

both patients, did they erupt in the wrong place? A. do, yes. Q. Based on my comprehensive examination, they Uh-huh. Thank you. Do you see anything unusual about the canines on these patients? A. I need to see the pano'd X rays. Just from

the pictures you can't judge that based on just one picture. Q. Okay. I can -- I can ask a different

question. Would you -- you did not score the canines on those patients, correct? You do have the HLDs

there, if you'd like to consult. A. Q. I don't see -- no, I did not score. Okay. Let's pull up -- oh, well, are you

aware that Dr. Orr scored Patient 29's canines as ectopic? A. I don't know, no. MS. SILHAN: 73-25. MS. STACEY MANELA: MS. SILHAN: Q. (BY MS. SILHAN) On the right? Okay. Let's pull up Patient

On the right, please. Did all of Patient's 25's

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front teeth erupt in the wrong place? A. Q. A. Q. A. Q. Based on all scoring? Based on your information -I put --- on your sheet? I put only the four front, four bottom. Okay. Only the four front and four bottom

erupted in the wrong place for this patient; is that correct? A. Q. A. Q. Erupt ectopically. Okay. Yes. But Dr. Orr scored them all 12; is that

correct -A. Q. A. scored. Q. Yes. That's --

-- of the anterior teeth? That's his scoring. I have no idea. Okay. Let's do another comparison. Let's pull up -- one moment. Let's do I don't know how he

MS. SILHAN:

Let's start with HLDs On Patient 20 and 42. P20-011. Q. (BY MS. SILHAN)

So, this is one of the

outlier patients. patient?

This -- what's your score on this

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A. Q.

27. 27. MS. SILHAN: Okay. Let's pull up the HLD

on Patient 42 on the right, P42-16, please. Q. (BY MS. SILHAN) And you mentioned you liked

to see panos, correct? A. true. Q. Okay. Well, we're going to do P42-16 first Can you tell us your score for If you want to ask me about canines, that's

and compare the scores. Patient 42? A. Q. 24 points. Okay.

And so, for Patient 20 you scored more.

Which tooth resulted in three extra points for ectopic eruption? A. Q. The upper right canine. The upper right canine. Okay. Let's look at

panos now. And Patient 20 has an upper right canine that's ectopic. A. Q. A. 42 does not, correct?

I didn't say that. Your score sheets say that, correct? The score sheet only described the four teeth

but it's not limited only to the four teeth. Q. Okay. So, you did not score an ectopic tooth

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that you diagnosed as ectopic in Patient 42? A. Q. A. Which was the right one? 42 is the right, yes, sir. Okay. Put the patients -- let's see the

patients. Q. Well, I'm asking you about your score sheet

and you explained that there's -A. Q. A. What's in the score sheet --- your -- yes, sir. What's in the score sheet is what is in the I have four front teeth, four bottom

score sheet. teeth. Q. Okay.

So, the four front teeth, upper teeth,

the four lower teeth -A. Q. A. ectopic. Q. Well, you can only score the anterior teeth on Yes. -- are ectopic in this patient? It doesn't mean that the other teeth are

the HLD as ectopic, correct? A. Q. A. Q. Yes. And that is the upper and the lower, correct? Yes, the upper and lower six, uh-huh. Upper and lower six. But your sheets for

Patient 42 --

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A.

But if I don't score it, it doesn't mean it

doesn't exist. Q. So, you don't regularly score the accurate and

true condition of your patients on the HLD score sheet? A. No, no. This is not how it is.

I -- do you want explanation or just yes-or-no answer? Q. Well, I'd like to understand how there could

be teeth that you -- that could be worthy of scoring and in need of correction but not make it on the HLD. So, please do explain. A. The manual -- the manual says don't -- don't So, if

score or don't measure from the ectopic tooth.

I measure an overbite and they have ectopic tooth, I don't double score it. I leave that one to measure it I was

for the open bite and I score the front teeth. following the manual and the manual says also be conservative.

So, if I have a question about a tooth,

especially the side ones, it was my bag or is it Tweed philosophy. Q. Okay. You focus more on the front teeth. So, we're talking about the front That's all the ectopic

teeth, the anterior teeth.

eruption that the HLD score sheet cares about, correct? A. Q. Yes. Okay. Now, you scored 24 on Patient 42 for

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ectopic eruption, correct? A. Correct. Yes. Okay. Let's go to the panos

MS. SILHAN: for these patients.

On the left let's pull P20-15 and

hold it there once we pull it up. Q. (BY MS. SILHAN) Now, you say on your score

sheet that the upper right canine is ectopic, correct? A. Q. A. Yes. Okay. Yes. MS. SILHAN: for Patient 42, P42-3. Q. (BY MS. SILHAN) Is that the upper right Okay. Let's pull up the pano Is that the upper right that's ectopic?

canine in that mouth? A. Q. A. screen. Q. Okay. Let's -- I don't know how to turn -- we Maybe. I don't know. I can't see it clearly.

Your panos are not of diagnostic quality? On the screen, I can't see it. On your

can't turn that light off. A. Can you put the pictures, enter all the

pictures? MS. SILHAN: A. Put the pictures. MS. SILHAN: Let's look at the photos, Let's pull up --

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sure. P20-13.

So, for the -- on the left side let's look at

MS. STACEY MANELA: Where would you like it to be? MS. SILHAN: Actually, no. apologize. P20-13. Okay.

Caitlyn, I'm sorry.

Where the panos are. I

Let's put it up where the HLD is.

Let's pull up the photos

for Patient 42, P42-02 up in the upper right, please. Q. (BY MS. SILHAN) Okay. Now, Patient 20 got a

score of 27, correct? A. Q. Yes. Okay. And the patient -- and that was all

four of the upper and lower teeth were erupted out of place, correct? A. Q. Yes. Okay. And the right -- upper right canine

also erupted out of place, correct? A. Q. Yes. Okay. And on the patient on the right,

Patient 42, you scored only the upper front four and the lower front four teeth as erupting out of place? A. Q. A. Correct. Correct? Correct.

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Q.

You did not score the canines on Patient 42 as

ectopic, correct? A. Because I scored them as overbite. I put the

overbite point. overbite.

If you go to the HLD, I put an

And you only supposed to measure overbite I cannot double score. Okay. Well, let's pull up --

from ectopic tooth.

MS. SILHAN: one moment. A.

If I strictly follow what's in the manual. MS. SILHAN: Okay. Let's pull up -- one

moment. Q. (BY MS. SILHAN) Was there any crowding in

this patient on Patient 42? A. Q. A. Q. A. Q. Yes. Severe crowding, yes.

Severe crowding? Yes. Okay. 42? Yeah. We can pull up the ectopic -- or I'm Did you score crowding on this patient?

sorry -- the HLD score sheet P42-016. A. Yeah, I put zero for crowding but I described So, I scored the most

Class I crowding, overbite. severe case. Q. Okay.

So, the upper four and the lower four

erupted out of place?

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A. Q. A. Q.

Upper four -- yes. Okay. Yes. Let me take one moment before posing the next

question. JUDGE SEITZMAN: to take a morning break? MS. SILHAN: Sure. JUDGE SEITZMAN: (Off the record) JUDGE SEITZMAN: the record at 10:55. Ms. Silhan. MS. SILHAN: Q. (BY MS. SILHAN) Thank you. One of the patients we looked All right. We're back on Let's go off the record. May we take a break? Is this a convenient time

at was Patient 42. MS. SILHAN: I wanted to pull up

Petitioner's Exhibit 64.42-002. MS. STACEY MANELA: please. MS. SILHAN: Q. (BY MS. SILHAN) I apologize. P64.42-002. Okay. Slow down

Is this a score sheet you

filled out for this patient? A. Yes.

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MS. SILHAN: let's pull up P64.42-004. Q. (BY MS. SILHAN)

Okay.

Let's side by side

Can you tell me what -- what

P64.42-004 is? A. Q. A. Q. there? A. Q. A. Q. A. Q. In terms of what? What --

Is this an HLD score sheet? Yes, it's an HLD. But there is no patient name on this form, is Correct? I don't know. Can you read a patient name on this form? I don't see anything, no. Okay. The patient name is blank, correct?

Yes, uh-huh. Do we see any other identifying information on

this form? A. Q. A. Q. A. Q. A. Q. In terms of identifying the patient? Do we see a Medicaid ID on this form? No. An address on this form? No. Is there a date on this form? No. Okay. But there is an ectopic eruption score

on this form, correct?

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A. Q. A. Q.

Yes. What is the score? 24 points. Which teeth are marked ectopic on this score,

score sheet on the right, the blank score sheet? A. Q. The four upper, the four lower. Okay. And then on the left, the one that did

have patient identifying information redacted from it, what's the ectopic eruption score? A. Q. Same, 24, four upper, four lower. Okay. Is there a reason you scored a patient

without knowing the patient's name on the form? A. I'm sure that form was in the patient chart.

I didn't put -- I never put the patient's name. Usually my assistant writes the patient's name, Medicaid information. Q. A. Q. Okay. -- they didn't put it there. Okay. And then they also fill in the So, maybe they --

examiner; is that correct? A. Q. A. Q. No. That's --

Is that your handwriting? No. Okay. Sometimes I write it; sometimes they do. And on the blank -- the form without

the patient name, the examiner's blank, correct?

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A. Q. A. Q. A.

Yes. Okay. And it looks like on the blank form --

Score --- what do you score for cleft palate? Let me ask you. So, for P64.42, the right

one, is it the same patient? Q. It is. If you want to pull out, you can look

at the Bate -- Bate stamps on them. A. Q. A. Q. A. Okay. It's the same file. So, you found in the chart two HLD? Sir, I -- I'm the one asking the questions. Okay. No. I just want to be clarified I don't know when you talk -Well, I'm referring to them by

because you put two. Q. Sir -- okay.

the left and the right. A. Q. Yes. These are the documents that your counsel

produced in this case. A. Q. Yes. The one on the left had patient identifying You actually have the unredacted

information on it.

form in front of you in your pile. A. Q. Uh-huh. Okay. The form on the right does not have any

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patient name on it, does it? JUDGE SEITZMAN: that. A. Yeah, but this is the same form. The right is I think we've established

the same as the left one. JUDGE SEITZMAN: Yeah. I think we've

established the one on the left has the redacted name and the one on the right has no identifying. MS. SILHAN: Q. (BY MS. SILHAN) Okay. Thank you.

The one without the name, the

one on the right, what do you have for cleft palate? A. Q. Zero. Okay. And did you have zeroes for other

scores on here on the -- for the form on the right? A. Q. No, I do not have zeroes. You don't have zero for, let's see, mandibular

protrusion? A. Q. I don't have zeroes. Okay. On the -- okay. So, they're blank.

Thank you. So, did you go in and fill the zeroes in on the form on the left? A. Q. A. No. Okay. My assistant does it. Your assistant fills out the HLD form?

The right form is exactly as the left one.

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Q.

Correct.

But you filled out the form on the

right without having the patient's name on the form, correct? A. when -Q. So, you fill -- you -- your practice is to This form was inside the patient's chart. So,

fill out forms without the patient's name on them, correct? A. Q. correct? A. Q. A. Q. That's not correct -Do you --- because you only see -Do you also fill out prior authorization forms No, that's not correct. But you just -- but you did that in this case,

without patient's name on them? A. Q. I don't fill them out. Does Antoine Dental print out prior

authorization forms without the patient's name on them? A. Q. A. Q. A. I don't know. And sign them? I don't -- let's -Okay. Let's -- you don't know? We got a patient

See, this is how it works.

and then there's a sticky note --

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Q. know?

I haven't asked you a question.

You don't

MR. RYTTING:

Your Honor, can -State the objection. Go

JUDGE SEITZMAN: ahead with your objection. MR. RYTTING:

Oh, my objection is she's If he -- if she thinks

not letting the witness finish.

it's unresponsive, she can say it's unresponsive; but I would like him to be able to complete his -- his answer. JUDGE SEITZMAN: procedure, Ms. Silhan. MS. SILHAN: That would be a better

If you -Absolutely. -- think the witness'

JUDGE SEITZMAN:

response is not responsive to the question rather than cutting the witness off, raise that objection. MS. SILHAN: Okay. So, the pending question

JUDGE SEITZMAN:

is is -- I believe your question was on prior authorizations are those printed out without the patient name on them; is that correct? MS. SILHAN: I asked -- yes, he answered I think the last question

that negatively, I believe.

had to do with the signature at the bottom of the form. JUDGE SEITZMAN: I think his answer was he

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doesn't -- he does not do the prior authorizations. THE WITNESS: idea. MS. SILHAN: Okay. And so, your question was I don't do them. I have no

JUDGE SEITZMAN: you don't know.

And I think we're waiting -- if you

want to a response to that question -MS. SILHAN: Yes, please. Do you -- so, I take it

JUDGE SEITZMAN: the question is:

Do you know how the prior

authorizations are done at Antoine? MS. SILHAN: A. Oh.

Do you -- do you -- this is your question?

You want me to explain it? JUDGE SEITZMAN: Or do you want -- that's If you've got a

what I understand to be your question.

different question, I'll let you pose a different question. Since he said he didn't do it -MS. SILHAN: Correct. -- and you asked him, so, He's trying to explain He just doesn't do

JUDGE SEITZMAN: you don't know how it's done.

that maybe he knows how it's done. it. MS. SILHAN: No.

I was asking

specifically about the signature on the prior

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authorization and whether -JUDGE SEITZMAN: Well, let's go back and

get that question clarified to do that. MS. SILHAN: Q. (BY MS. SILHAN) Okay. Okay.

You have explained that you

fill out HLD forms before there's any patient information on the form, correct? A. Q. I did not say that. Do you fill out HLD forms without the

patient's name, date of birth, or Medicaid ID filled out on the form? A. Q. A. Q. That's not correct. So, the form on the right for Patient 42 -Uh-huh. -- there was at one point a patient name on

the form on the right? A. note. There was -- yeah. No. There was a sticky

What I filled out -- when we get new patients -We get new It's inside

if you don't mind me to explain it. patient. the chart.

The blank -- the form is blank.

There's a sticky note, once we fill it out

and then, yes, we will -- we'll try to send it to Medicaid. Then they go and they fill -- because we

might have patient they don't qualify or we might have patient that don't reach the points.

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Q. A. we do -Q.

Okay. I don't -- I don't send them. So, why should

Okay.

But -- but when you fill out the form

on the right, the form without the patient name on the form, you don't put zeroes in -A. This is the same form. That's exactly the

same form. Q. A. Q. These are not the same form. No. It's the same form.

Sir, it's -JUDGE SEITZMAN: Okay. Let's go back and

we'll go back to question and answer. So, Doctor, let -- let Counsel finish her question and then you -THE WITNESS: Yes, sir. -- can answer the

JUDGE SEITZMAN: question, if you can.

Let's pose a question. Q. (BY MS. SILHAN) Does the form on the right

have the patient name on it? A. Q. A. Q. It does not have it -Okay. -- currently. Okay. Does it have zeroes for all of the

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fields that you did not score? A. It does not. MR. RYTTING: Asked and answered. Well, I think we're going

JUDGE SEITZMAN:

back and we're trying to re-establish what the basis for the next question. So, it's overruled.

You may proceed. MS. SILHAN: Q. (BY MS. SILHAN) Thank you. Your staff fills in the

patient name on the form after you score it; is that correct? A. After we determine that we'll submit the case

to Medicaid, yes. Q. Okay. And do they also fill in the values for

cleft palate? A. zero. Q. A. Q. If I leave it blank, I instruct them to put That means it's zero. Do they always put zeroes? If I leave it blank. But you don't know? Do you -- do you know

whether they fill in zeroes? JUDGE SEITZMAN: question. MS. SILHAN: Okay. As I understand your I think he answered your

JUDGE SEITZMAN:

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question -- his answer to your question was if he leaves it blank they put in the zero. Q. zero? A. Q. I don't watch them. Okay, okay. And do you know whether the prior (BY MS. SILHAN) Do you watch them fill in the

authorizations are filled out in a similar manner with a signature but without the patient identifying information on it? A. Q. I can't answer that question. Okay. Let's look on the right. Can we -- let me find the

MS. SILHAN: page number. Q. form? A. Q. A. Q. Yes. Okay.

Can we go to P64.42-003? Are you familiar with this

(BY MS. SILHAN)

Is the Patient 42's name on this form? I don't see any names.

There's no name here. Okay. MS. SILHAN:

Can we scroll down? But there is a signature on

Q.

(BY MS. SILHAN)

this form? A. Q. Yes. Okay. MS. SILHAN: Can we go to page 1 of the

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same file? Q. (BY MS. SILHAN) Does this appear to have

redacted information on the top of the form? A. Q. Yes. Okay. Thank you.

What percentage of your private pay patients have ectopic eruptions? A. I don't use a concept of ectopic eruption as

my private pay patients. Q. Are you aware and do you recall that at least

one ectopic tooth is scored in 100 percent of your Antoine Dental patients? A. Q. Can you rephrase your question, please? Is it true that 100 percent of the patients

you have scored in the sample in Antoine Dental -A. Q. A. Q. That's not --- have at least one ectopic tooth? That's not correct. We went through all the cases you signed

today, correct? A. You mentioned the word "sample." You should

have said -Q. A. Q. Yeah, some --- my patient. That's -- that's different.

Of your patients in the sample 63 --

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A. Q.

So --- is it correct that 100 percent of them you

scored with at least one ectopic tooth? A. Q. That's correct. Is it also correct that you scored at least

seven ectopic teeth in 100 percent of your patients out of the 63 here? A. Q. That's correct. Okay. MS. SILHAN: I'll pass, please. Direct -- or cross-direct

JUDGE SEITZMAN: or whatever we're calling it.

CROSS-EXAMINATION BY MR. RYTTING: Q. Dr. Kanaan -JUDGE SEITZMAN: please. Q. Pull the mic closer,

You don't have to -- pull it closer, please. (BY MR. RYTTING) -- if you would -- I'd like

you to tell the Court a little bit more about your training and experience, please. A. Okay. I finished my dental school in 2000 I did a mini-residency program I finished my residency I did a master thesis

from Aleppo University.

2002 at Harvard University.

2005 from St. Louis University. during my residency.

I did a one-year fellowship at

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the cleft lip and palate team at St. Louis Children Hospital. Q. And how long have you been a Medicaid

provider? A. Q. Since early 2006. And do you have any special- -- are you

specialized in -- or do you have any specialties? A. Q. I'm an orthodontist. Do you have any other training with -- within

orthodontics, that is specialized? A. palate. Q. All right. You've been asked a number of I did a one-year fellowship in cleft lip and

questions about HLD scores and I'd like to have you -I'd like you to give your opinion for the Court. MR. RYTTING: If you would put up just any

HLD score that's in evidence. MR. ROY ORNALES: This is --

(Court reporter interruption.) Q. (BY MR. RYTTING) Maybe stick with one of your

patients that's already been discussed. MR. RYTTING: believe, patient -MR. ROY ORNALES: Q. (BY MR. RYTTING) P1 -- it's Exhibit P1. Exhibit P1, would you So, that would be, I

Okay.

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put up the HLD score, please? JUDGE SEITZMAN: read off the Bate number. MR. ROY ORNALES: MR. RYTTING: Bate Number ADC000863. Hold on. He's going to

And actually if I could --

if we take that down and put up one of his patients, Patient 2, the HLD for Patient Number 2. MR. ROY ORNALES: ADC000979. Q. A. Q. (BY MR. RYTTING) It's unclear. It's unclear? Would you like -- would you And you recognize -This is P2 Bate Number

like another exhibit? A. Yes, please. MR. RYTTING: (sic) Number 5. MR. ROY ORNALES: ADC000419. Q. (BY MR. RYTTING) And, Doctor, this is a P5 Bate Number All right. Well, try Page

patient -- this is an HLD score that you filled out, correct? A. Q. Yes, sir. And what is your understanding of the purpose

of the HLD index? A. The HLD index it's a hematological index where

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it measure the existence or absence of handicapping malocclusion and the severity of it. Q. A. Okay. So, existing or absence and the severity of

the handicapping by the quotient. Q. And are these -- is the HLD score used in your I mean, is the HLD score sheet used

private practice?

in your private practice -- let me back up. Do you use the HLD index to diagnose patients? A. I don't use the HLD index to diagnose a

patient just -Q. What do you -- what do you rely on to diagnose

the patients? A. Well, my clinical findings and X rays and

pictures. Q. So, the HLD score has a distinct purpose; is

that correct? A. Q. Correct. And within Medicaid what is your understanding

of that purpose? A. It's a tool to measure whether the patients

will qualify for the public funding program or not. So, it measures its different components; and once you meet the cut point, it will make the patient either

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eligible or noneligible. Q. And you say it measured handicapping How does -- what is handicapping

malocclusion. malocclusion? A.

Handicapping -- Draker, who coined that term, So,

described it as an extreme deviation of the norm.

if we know the norm then we know what's the abnormal and we know what is a handicapping. Q. And is -- is -- when you -- when you submit a

document or a case to Medicaid, what is -- is the HLD score what indicates handicapping malocclusion, severe handicapping malocclusion? A. Q. It indicates the severity of the handicapping. Is there any other thing you put -- any other

information that you put in your documents that you submit to Medicaid that is -- that would inform Medicaid about handicapping malocclusion or is it just the score? A. Q. Just the score. And is this based on your un- -- and are you

familiar with the Texas Medicaid manual? A. Of course. MR. RYTTING: Can we -- if you would put

up, I believe it's, Respondent's 14, and if you could take us to Chapter 19.

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JUDGE EGAN: easier.

I have the hard copy, if it's

MR. ROY ORNALES: Number P01254. MR. RYTTING:

This is from P66 Bate

And can we have, I Can that be made any

believe -- I can hardly see it. clearer, bigger? Q. (BY MR. RYTTING)

All right.

And is that

your -- it's your understanding that the HLD score -that a handicapping malocclusion is measured by the HLD score, correct? A. Q. A. Q. A. Q. Correct. As measured by the HLD score? Correct. And nothing more? They're identical?

It says right there on the bottom. Okay. MR. RYTTING: If you would, can we go back

to the -- to Patient Number 5 in the HLD -- actual HLD score? MR. ROY ORNALES: Q. (BY MR. RYTTING) P5 ADC000419.

And the HLD score has

several categories, correct, that you're supposed to score? A. Yes. Nine categories, correct.

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Q.

And they come from the Texas Medicaid

handbook? A. Q. Correct. Is that correct? All right. would read them off. A. The cleft palate, severe traumatic deviation, And they include -- if you

overjet, overbite, mandibular protrusion, open bite, ectopic eruption, anterior crowding and labio-lingual spread. Q. Thank you. And these are orthodontic

concepts? A. Q. Yes, they are. And they're -- but they're defined -- where Do you know?

are -- where are they defined? A. The manual. MR. RYTTING:

Can we turn to the manual

Chapter 19 and put up that definition? MR. ROY ORNALES: P01261. MR. RYTTING: overjet in millimeters. Q. (BY MR. RYTTING) And are you familiar with Can we go to -- let's go to This is P66 Bate Number

that definition? A. Yes, I am.

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Q. A. Q.

Or with that -- with what an overjet is? Yes, I am. And what is that -- what are -- what are you

familiar -- and why? A. It's just something common. It's the linear

measurement between the surface of the front tooth to the bottom teeth, how much the teeth stick out. Q. And is that similar to -- is the use -- the

Medicaid's -- it's your understanding that Medicaid uses overjet similar to the way that you've been taught to apply that term in -- through your training and through your practice? A. Yes. MR. RYTTING: Can we turn to the next

definition overbite in millimeters? Q. (BY MR. RYTTING) Is it -- and that -- if you

would, read the -- the instruction or the definition. A. There's no definition. It's only instruction.

It tells me that score the case exactly as measured, then subtract 3 millimeters. Consider the norm and This would be

enter the difference as the score. double-counting. Q. Okay.

And is that -- that, too, is -- is that

familiar from your training? A. From my training, yes.

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Q.

And so, that is how you would apply it when

you're doing general dentistry for Medicaid and nonMedicaid patients? A. Q. Correct. I will pass mandibulars and also a definition

for mandibular -- or the instruction for mandibular protrusion in millimeters is. the instruction. A. Score the case by measurement in millimeter by And if you would read

the distance from the labial surface of the mandibular incisors to the labial surface of the maxillary incisor. Q. Don't score both overbite and open bite. And that, too, is a concept that's familiar

from your training? A. Q. Yes. And if we turn to -- and by "training" by

the -- by your knowledge of the literature or your academic training courses and so forth? A. Q. Yes, sir. Okay. If we turn to open bite in millimeters,

what does that -- what does that instruction say? A. "Score the case exactly as measured.

Measurement should be recorded from the line of occlusion of the permanent teeth, not from the ectopically erupted teeth in the anterior segment.

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Caution is advised in undertaking treatment of open bites in older teenagers because of the frequency of relapse." Q. And is this definition -- and is this

definition -- is this definition something that's -that you're familiar with from your -- from your practice and from your training? A. Q. A. This definition is a little bit different. And how is it different? I would like to put the -- the Draker picture,

that exhibit that Dr. Tadlock used. MR. RYTTING: believe, 37 or R37. MR. ROY ORNALES: THE WITNESS: Yes. R37. Can you, please, go So, that would be, I

down, I think, four or five pages? Go down, go down more, more, more, more. Okay. A. Here we go. This is a picture that Dr. Tadlock used from

the Draker article and I'd like to zoom on the bottom, please. And on Draker this is what -- how we do it at We measure

the textbook or in the orthodontic program.

the open bite the distance from the incisor edge on the top to the bottom. It says mandibular protrusion --

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THE WITNESS:

I think you need to go up a Where is the

little bit because this is not -- no. explanation for that figure? A.

Right here.

Overbite, this condition is defined as absence

of occlusal contact -(Reporter interruption.) A. It says it is measured from edge to edge in

millimeters. So, what Tadlock used it says it's measured from edge to edge in millimeters. If I go to

the manual, it says you need to measure it from the line of occlusion, not from ectopic tooth. That's

one -- one of the differences that Medicaid has in the manual among what's been taught in the textbooks. Q. (BY MR. RYTTING) Okay. And when you say

measure from the line of occlusion, can you explain that or do you need to look at a document? A. I think Dr. Orr yesterday he explained the You see this vertical line from the So, if the tooth has erupted

line on the CEF.

back more to the front?

you don't use this ectopic erupted tooth because it will mask the open bite. So, what you do, you do a more objective measurement. You use the back teeth as a reference of So, you have the

point rather than the crooked tooth.

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more realistic measurement and that's what Medicaid wants. There's two ways. Medicaid has this way It's strange that

and the academic we have that way.

Draker is the one that introduced the HLD concept but to use this way but in Med- -- in Texas Medicaid we use a line of occlusion as a reference. MR. RYTTING: And if we go back to the

Texas Medicaid definitions. MR. ROY ORNALES: MR. RYTTING: A. It's very clear. P66. P66.

P66, thanks.

Measurement should be

recorded from the line of occlusion of the permanent teeth. Q. It does not say from the incisor edges. (BY MR. RYTTING) And before we get to the

ectopic eruption, which we've heard so much about, let's go down to lab- -- labio-lingual spacing. A. Q. A. Labio-lingual spread, yes. And what does that say? Labio-lingual spread in millimeters. The

score for this category should be the total in millimeters of anterior spaces. And this is how It's the amount

Dr. Altenhoff explained the first day. of spacing between the front teeth.

However, if we go back to Draker's

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article, it described exactly the opposite. THE WITNESS: Could you, please, have the

Draker article that the respondent has? Maybe you can put them side by side. Okay. It's right here. Please zoom into the bottom

one and also you can show the picture so the Judges can -A. So, in Draker's article the labio-lingual "This measurement

spread, I want -- I want to read it.

is new and, therefore, requires a somewhat more detail explanation. To measure labio-lingual spread, the

Boley gauge is used to determine the extent of deviation from a normal arch." And you can see at the top the patient has crowding. "In the illustration the measurement is made

from the incisor edge of the mandibular left cuspid to the incisor edge of the lingually locked --" locked, which means crowding -- "lateral incisor." situation. That's one

Now, the condition is "where there is only

a protruded or lingually displaced interior, the measurement should be made from the incisal edge of that tooth to the normal arch." So, he's talking about crowding. Whereas,

what we have in Medicaid, we had spacing, two different issues. So, when I score it based on Medicaid, I don't

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go and apply the textbook definition or Draker's definition. I stick what's in the Medicaid definition. This is what Dr. Linda

This is what Tadlock did. Altenhoff confirmed. do spacing.

When we see spacing, we go and we

I don't go be smart, "Oh, no. wrong.

This is

I'm going to go with what's in the textbook and

Proffit then. Q. (BY MR. RYTTING) What other -- let's talk

about -- let's get to ectopic eruption then. A. I just want to make sure that the Judges Thank you.

understand how it's two different things. MR. RYTTING: both back up, please.

If you put those back up --

And if you would highlight the

definition for ectopic eruption. Q. (BY MR. RYTTING) And is this just an

instruction? A. Q. end? A. Q. Yes. So, fair to say that Medicaid took an It provided No. It's a definition with two examples.

And then it also contains instruction at the

additional step with ectopic eruption.

definition rather than just instructions? A. Yes, sir.

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Q. A.

And under -- under Medicaid how is it defined? It's an "unusual pattern of eruption" or to

explain it, as Dr. Tadlock said, it's abnormal position of the tooth. Q. And how do you know when a pattern or -- well,

have you -- have you found the term unusual -- have you -- have you researched the term "unusual pattern of eruption"? That's what's defining ectopic eruption,

correct, that phrase? A. Q. Yes, sir. Okay. Have you -- have you done any -- have

you, say, Googled "unusual pattern of eruption" or done any data -A. Q. A. To know what the phrase mean? Yes. If you Google it, it will only take you back It doesn't exist -- it

to the Texas Medicaid manual.

only exists in the Texas Medicaid manual. Q. A. Q. A. Q. So, the phrase -- so, the term -There's no -The term unusual pattern of eruption? That's only strictly Medicaid. Please -- as far as your -- your investigation

of that phrase goes? A. Yes, unless there's something new happened but

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this is, like, four or five years ago. Q. And is that definition "an unusual pattern of

eruption," is that definition something that you were taught ectopic eruption meant in the schools in your -- and through your training? A. Q. A. Q. As the Medicaid manual, no. Are you familiar with Proffit's book? Yes. Okay. And I believe we have an excerpt of

that book in evidence. JUDGE SEITZMAN: to pull up -MS. STACEY MANELA: JUDGE SEITZMAN: What is it? Roy, do you need Stacey

Stacey, do you mind? I'm sorry? What That's

MS. STACEY MANELA: number is it? not a -THE WITNESS: Dr. Tadlock. JUDGE SEITZMAN: second. (Off the record) Q. (BY MR. RYTTING) R30?

That's the actual book.

You put some pictures of

Let's go off the record a

And are you familiar with

the definition that Proffit gives for -A. Of course.

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Q. A.

Is it actually a definition? It's more a description than a definition, a There's no clear

description of the situation.

definition for ectopic eruption. Q. Is the -JUDGE SEITZMAN: Doctor. Can you tell us which exhibit we're looking at? MS. STACEY MANELA: Respondent's 50. JUDGE SEITZMAN: Respondent's 50. Yes, sir. Yes, Judge. It's Excuse me. Hang on,

MS. STACEY MANELA: JUDGE SEITZMAN: You may proceed. Q. (BY MR. RYTTING)

Thank you, ma'am.

And what is -- what are the

important aspects of this definition, in your view? A. Q. A. Oh, Proffit's definition? Yes. Number one, his definition happened in the

early mixed dentition. JUDGE EGAN: THE WITNESS: Q. (BY MR. RYTTING) THE WITNESS: Early what? Early mixed dentition. And what do you mean by that? Please put the X ray.

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MS. STACEY MANELA: THE WITNESS: blow it up? A.

Which one, sir? Can you, please,

That one.

So, that's a situation where the patient is at If they

age 6 or 7 where the upper molars comes down.

lean a little bit forward like a millimeter or so, they will cause -- they will be blocked by the primary tooth. So, here we have baby teeth; whereas, in

Medicaid they are 12 or older, there's no baby teeth. So, we talk about two different things. situation, an early mixed dentition. That's a

What you are

talking about is DADA comprehensive when the patient is 12 years of age or older. Q. And what about the -- and what was Proffit's What part of the mouth? That's --

focus upon? A. Q.

The posterior teeth.

And how -- how is that different from the

Medicaid manual? A. The Medicaid manual were limited to the

anterior teeth. Q. And does Proffit, though, talk about anterior

teeth and ectopic eruption of anterior teeth? A. He does, but he talked about it the same in

the early mixed dentition where the lower incisor will come in and they knock off the baby teeth.

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Q.

So, what relevance does that have for you as a

Medicaid practitioner, this definition? A. No rele- -- no relevance, apple and orange, These are more toward the

two -- two different things.

pediadontist, the pediatrician, the pediadontist who treat kids at early age. kids who are 12 year old. this. Q. And what else -- I mean, the set -- you've I'm an orthodontist. I treat

I have nothing to do with

been in the courtroom when Dr. Tad- -- Tadlock testified and when Linda Altenhoff testified, correct? A. Q. Yes, uh-huh. And they maintained that the definition that

the Medicaid manual uses is the same as the definition in Proffit. Is that your understanding of their

part -- part of their testimony? A. Q. This is what they said, yes. What about -- what -- in the Medicaid manual

what -- is there anything in the Medicaid manual that indicates that that's a mistake, that that's a mistaken interpretation of the Medicaid definition? A. You know, we can prove it with two points.

Number 1, Medicaid manual very clearly specify -- it gives me two examples. It says such as a high labial

cuspid or teeth that are grossly out of the long axis

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of the alveolar ridge. These two situations are not described in Proffit book as ectopic eruption. abnormal eruption. He described them as

So, even Proffit -- even the

examples that Medicaid use, in Proffit and the other textbooks they're not being referred as ectopic. call themselves something else. That's Number 1. They

Number 2 in that instruction it says either use ectopic eruption or anterior crowding. It

says you cannot -- I cannot put anterior crowding and ectopic eruption. I can only choose one. And that's

what tells me that there's a relation between the crowding and ectopic eruption. never -- he never said that. Whereas, Proffit He just categorize it

under -- under a different category. So, these are the two strong points that emphasize that this definition that Medicaid has is total different than what Proffit and the textbooks has. Even Parker -- in the article that the respondent has, Parker has it very clearly if you -- we can pull it up if you want. Q. A. Q. Would you like to see the article by Parker? Yeah, we can show the Judge that. Is --

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A.

I don't have it.

It was with the respondent.

It's a respondent article -MR. RYTTING: demonstrative exhibit? MS. STACY MANELA: me off guard. JUDGE SEITZMAN: second. (Off the record) JUDGE SEITZMAN: All right. We're back on Let's go off the record a You're kind of catching Is that another

the record at 19 minutes before the noon hour. Q. (BY MR. RYTTING) Okay. And I believe you --

are you familiar with the HL- -- an article by Parker, William Parker, "The HLD Index and the index Question"? A. Q. Yes, I am. Okay. And what relevance is that to -- we

were talking about ectopic eruption and the difference between the Medicaid manual and the way that other authorities define that term. A. How is --

May I -- may I read exactly what he quotes so

I don't come up with something from me? JUDGE SEITZMAN: counsel? MR. RYTTING: counsel? May I show it to opposing You want to show it to

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MS. SILHAN: MR. RYTTING:

The highlighted portion? May I approach? You may.

JUDGE SEITZMAN: Q. (BY MR. RYTTING)

I'm handing the witness an

article, "The HLD (CalMod) Index and Index Question" by William Parker. A. I'd like to read on page 140, Item Number 6.

And Parker, after his study what he said -- I'm quoting Parker now. JUDGE SEITZMAN: very slowly. JUDGE EGAN: Slowly. Okay. Okay. If you can read it

JUDGE SEITZMAN: A.

Because of the confusion surrounding the

definition of ectopic, the following definitions and instructions apply when the HLD California modification index is used to identify ectopic eruption. Then he talks about the examples and then -- do you want me to read the whole thing? JUDGE SEITZMAN: You read whatever you

feel like you need to read for whatever. A. Well, I just read the most important part

where it says that the confusion surrounding the ectopic eruption and then where he said that -- I'm back -- in all other situations teeth to be deemed

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ectopic must be more than 50 percent blocked out. So, that's another areas -- and Dr. Tadlock he agrees with this one -- that if you have blocked teeth, they're considered ectopic; whereas Proffit doesn't consider them ectopic. Thank you. Q. (BY MR. RYTTING) And do either one of these

authorities comment on the sub- -- what has been called the -- let me strike that. Let me go back.

There was -- you were in the courtroom when there was issues about whether ectopic eruption is a subjective definition or completely subjective definition. Do you recall if Parker or if -JUDGE SEITZMAN: MR. RYTTING: Q. (BY MR. RYTTING) No. -- Dr. Draker had anything Proffit?

to say about these -- the concept of ectopic eruption and its subjectivity? A. Yes. So, we will go one by one. You have two

component. screen.

Let's put Draker's article, please, on the

MR. ROY ORNALES: THE WITNESS: down. Go down.

R37. I think, please go

Okay.

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JUDGE SEITZMAN:

Does anybody have a laser

pointer that he can give him -- that you can give the doctor so that he can point out what he's looking at? JUDGE EGAN: read that. THE WITNESS: I am to go backward please Backward, please. I'm too blind to be able to

but please go backward slowly. Backward, backward, back. A. I want to -JUDGE SEITZMAN: Doctor.

Wait one second.

Okay.

Doctor -- hang on,

Can you point to the area? And then, Roy, would you blow it up for

us, please? Is that what you wanted, Dr. Kanaan? THE WITNESS: A. Yes.

So, it says here the preliminary cycocical

valuation therefore pointed up the inadequacy and lack of definition for Component Number 7, which is ectopic eruption and anterior crowding. This is Draker. the HLD. That's the one who wrote

He's saying that lack of definition for And then the

Components Number 7 and Number 8, 1960.

second section of your question is Parker article. Q. (BY MR. RYTTING) Well, could you -- would you

go a bit further because I believe that Draker talks

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about -A. And then what Draker said it was hypothesized

that Number 9 the labio-lingual spread -- and remember I told you that labio-lingual spread is crowding. not spacing. It's

So, he suggest that rather than using the

first two concept, he eliminated these two and he said it was hypothesized that Number 9 might be a more distant and objective measure for what we intended to record. The HLD data sheet Number D-10 show seven

components only. + So, he eliminated the ectopic and anterior crowding because it is subjective. THE WITNESS: So, go, please, to the next

page and I will show the Judge how it was eliminated. Next page, please. Keep going, keep going, keep going. here. A. See, please blow up this one. The original HLD has nine component and you Right

see how he get rid of the ectopic eruption and the anterior crowding because it's subjective and he stick with the labio-lingual spread. Q. (BY MR. RYTTING) Is it your understanding

that the concept of ectopic eruption that it's used in Texas Medicaid is to -- and H -- along with the HLD score, in general, is derived from Draker's work?

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A. Q.

Yes. So, and Dr. Tadlock, as you recall -- you were

in the courtroom when Dr. Tadlock testified? A. Yes. JUDGE SEITZMAN: Q. (BY MR. RYTTING) Microphone, please.

You were in the courtroom

when Dr. Tadlock testified, correct? A. Q. Yes. And doc- -- you were in the courtroom when

Dr. Altenhoff testified? A. Q. Yes, I was. And they both maintained that ectopic eruption

was an objective definition for the most part, correct, objectively defined? A. Is that your understanding?

I think Dr. Tadlock, he said it was somewhat I don't remember. I don't remember.

subjective. Q.

Would that be another indication that the

definition of ectopic eruption that they're working with is different from the Medicaid manual? A. Yes. Do you know when labio-lingual spread was added to the Texas Medicaid manual? A. Q. A. I don't know. Do you know when ectopic eruption was added -I don't --

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Q. A. Q.

-- to the Medicaid man- -I don't know. I want to go back to the point that you made

that the connection between anterior crowding and ectopic eruption of teeth -A. Q. A. Q. Yes. -- is connected in the Medicaid manual. Yes, sir. And why -- and are they connected as

orthodontic phenomena, too, like one -- for example, may one cause the other? JUDGE EGAN: A. You want to --

It might -- it might, yes. JUDGE EGAN: Just pull it closer to you. Again ectopic

A.

It might, yes; it might not.

eruption is a description of the location of the tooth. Crowding is a quantitative measurement of how much lack of space we have. It might be no. Q. So, you might -- it might be yes. But mostly yes. Okay. Yes. And how could they -As

(BY MR. RYTTING)

and how -- and why would they be connected?

orth- -- orthodontic phenomena, how might they be connected? example? A. Yeah. Because if the teeth have drifted and Does one cause the other? Crowding, for

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the tooth doesn't have enough space or crowded, it will represent itself as ectopic. And that canine it became If there had been

ectopic because there was no space.

enough space, it would not be ectopic. Q. A. And what about the incisors, upper and lower? Same -- same concept. If the patient has

enough space on the bone, they would not be pushed outside the base of the bone. They will be straight

and up; but because the size of the bone is smaller, they come out ectopic. Q. And would they -- what about -- would --

would -- could it cause an ectopic eruption and represent themselves as rotation or as slanting? A. Q. Correct, yes. And how -- how would -- how would that -- how

would that occur? A. As I told you earlier, if the tooth comes in

and it doesn't have enough space, because the difference of the measurement of the tooth, it might be slanted so it can accommodate itself on the arch. the ectopic eruption will be expressed as rotation. The sign of ectopic would be presented as rotation or lean out of that basal bone or alveolar ridge. Q. And when you -- when you score -- when you So,

score ectopic eruption on Medicaid or on the HLD

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sheets, do you -- do you count teeth that have rotated or teeth that have slanted? A. If -- if they have symptoms, I do. If they

have no symptoms -- again, I don't look -- I don't look only into this rotated tooth. whole patient. them. You have to look at the

So, if there are symptoms, yes, I count

If they're only rotated a little bit, no, I That's why -- I'm sorry. I want to

don't count them. clarify.

That's why sometimes you will see extremely They're

straight teeth but no, they are not straight. outside the bone. There are symptoms.

The patient had

problem with the joint, either crack in teeth, chipped teeth. You don't go only by what you see in the

picture and then jump to the conclusion, "Oh, these are straight and not ectopic." No, that's not right.

We can show hundreds of cases in textbooks where they have straight teeth in the beginning but when you do the X rays, you do the CEF, they're not straight. Q. You do it backward.

And by -- and by ectop- -- when you say

they're ectopic, you're using the Medicaid definition -A. Q. A. Medicaid definition, yes. -- as you understand that definition? Yes.

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Q.

And how did you come up -- how did you arrive

at this understanding that Medicaid counted teeth that are rotated or teeth that are slanted outside of the basal bone as ectopic? A. Yeah, we do -- we apply the definition as it

says as unusual pattern of eruption and Dr. Tadlock agreed that it is abnormal. And to know what abnormal So, I go back to

is we need to know what normal is.

the article -- to the ABC article of orthodontia and you have to take this article and read it for your board exam which is the "Six Keys to Normal Occlusion." There's a very well-known article called the "Six Keys to Normal Occlusion." And it defines six components and you have one component about inclination. Second component says It says it very

that the teeth should be no rotation. clearly and I have the article. there should be no spacing. straight, no rotation. it's abnormal.

And then it says that

So, if the tooth is If it's rotated,

It's normal.

And that's based on the requirement

reading list for the ABO exam, the board exam for orthodontist. article. So, normal teeth has no rotation have no spacing. They're properly placed on the bone. The You need to read and understand that

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Class I molar, Class I canine, proper turn, proper inclination. And I have the article ready if the Judge

wants to take a look to it. THE WITNESS: It says very clearly no

rotation, no spacing for normal occlusion and I would like you to see it, please. MR. RYTTING: I would like -- I just would

like to tender this into evidence. JUDGE SEITZMAN: Show it to Ms. Silhan.

We can go off the record a second so you can take a look at it. (Off the record) JUDGE SEITZMAN: five minutes before noon. And, Ms. Silhan, you've had an opportunity to look at the document. We haven't given it a number So, if Back on the record at

yet, and I know we haven't had a formal tender. you want to do that at this time, Counsel? Do you want to mark it? MR. RYTTING: and tender. JUDGE SEITZMAN: purpose? MR. RYTTING: We offer it to -- into And tender for what

I'd like to mark this as P83

evidence as a learned treatise.

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JUDGE SEITZMAN: MS. SILHAN:

Ms. Silhan?

I object on the grounds that

this witness isn't offered as an expert and the exception for a learned treatise is inapplicable in this case. JUDGE SEITZMAN: Well, he may not have

been offered as an expert but he certainly is qualified as an expert as much as any other -- other orthodontist has and he's one of the treating professionals orthodontists in this case. The way we've handled this

rather than as learned treatises, Counsel, because typically those have to be read into the record, is we've just offered it as showing the basis in whole or in part for the opinion of the expert testimony. And

I'd be inclined to keep with that pattern and admit it in that fashion. MR. RYTTING: Okay. I would offer it -- I

would offer it, then, for that purpose. JUDGE SEITZMAN: that entry? MS. SILHAN: Okay. One moment. If so, any objection with

So, I'm not sure what the -- you've Is that --

mentioned it's a learned treatise. JUDGE SEITZMAN: withdrawn.

That tender's been

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MS. SILHAN: apologize.

Oh, I apologize.

I

JUDGE SEITZMAN:

And the tender now is

same as a tender of a number of the respondent's exhibits and that's being offered to show in whole or in part a basis for the expert's opinion. MS. SILHAN: Okay. I mean --

JUDGE SEITZMAN:

So, the articles are not

being admitted for the truth of the matter contained in the article, simply to show that that is in part -what the expert relied upon -- relied upon either whole or in part in forming the expert's opinion. MS. SILHAN: Has he relied on this? He indicated he has. His

JUDGE SEITZMAN:

testimony -- we've had extensive testimony about it. MS. SILHAN: chance to review this. Okay. We'll withdraw our objection, then. All right. It'll be 83. Okay. Well, I have not had a

JUDGE SEITZMAN:

P83's admitted for the limited purpose of showing in part what Dr. Kanaan relied upon in forming his expert opinions. Can we get a copy to Ms. Silhan before the lunch hour so that she can review it? MR. RYTTING: Yes, your Honor, we can.

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JUDGE SEITZMAN: MR. RYTTING:

Thank you.

And just to make -- make the

record clear, what was offered/admitted for the purpose of showing the basis of Dr. Kanaan's testimony is "Six Keys to Normal Occlusion" by Lawrence F. Andrews, D.D.S, Exhibit P83. JUDGE SEITZMAN: also -MS. SILHAN: THE WITNESS: MR. RYTTING: there is a year on this. THE WITNESS: Is there a year on that? 1972, I think. It is -- I do not know if It appears to be 1972. 1972. And can we also get All right. And would you

JUDGE SEITZMAN:

Ms. Silhan a copy, even though it hasn't been tendered in evidence, of the Parker -- is it the Parker article? Yeah, the Parker article. And if you can get that at

the lunch hour so she'll have that article. MR. RYTTING: should admit that as P -JUDGE SEITZMAN: I'm not asking you to I mean, you can do I'll do that and maybe I

admit it or offer it at this time. what you want. MR. RYTTING: P --

I would like to admit it as

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JUDGE SEITZMAN: about it. lunch. MR. RYTTING:

He was asked questions

I thought she might want to read it over

We would like to designate

the Parker article as P84 and we would move to admit it. JUDGE SEITZMAN: Same tender on Parker,

just to show what Dr. Kanaan relied upon in whole or in part in forming his expert opinions? Same -MR. RYTTING: Yes. Yes, your Honor. Same tender?

JUDGE SEITZMAN: to the limited tender? MS. SILHAN: over lunch. JUDGE SEITZMAN: No.

Ms. Silhan, any objection

I'll be happy to read it

All right.

So, P84 is

admitted without objection for the limited purpose of showing what Dr. Kanaan relied upon in whole or in part in forming his opinions with respect to his testimony today. And we're -- so, 83 and 84 are in for those limited purposes. MR. RYTTING: And I guess one other -- one I have the Draker

other record keeping purpose. article.

It's not clear whether that has been admitted

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for a limited purpose. JUDGE SEITZMAN: Draker was admitted, I

think, for the purpose of showing Dr. Tadlock's basis in whole or in part in forming his opinions. correct? Judge Egan's got the score sheet. Am I So, let me

see if it was a home run or a double. JUDGE EGAN: number. My recollection is it's -JUDGE SEITZMAN: To any extent it wasn't, You have to give me the

is there any objection to having the Draker article admitted as showing -- actually it appears now as a basis for both Dr. Tadlock and Dr. Kanaan's expert opinions. Any -- any objection to 37 to the extent it hasn't been admitted? MS. SILHAN: No, your Honor. So admitted for that

JUDGE SEITZMAN: limited purpose.

We're back to any other questions you have for Dr. Kanaan at this point. MR. RYTTING: Q. (BY MR. RYTTING) I do have other questions. Sticking with the Medicaid

definition, is it your understanding that language has been added to the -- the definition of ectopic eruption

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recently? A. Q. A. Yes, sir. Okay. I've been told that, yes. JUDGE SEITZMAN: A. Q. Yes. Speak up.

I have been told, yes. And was this published in a

(BY MR. RYTTING)

bulletin, to your understanding? A. Q. I saw it online on the website. And what was added to the -- what was -- what

was added or changed about the definition? A. It took off the rotated or slanted teeth. It

took it off from the definition. Q. A. And was anything added to it? I don't remember. MR. RYTTING: We have the -- like to show

it to opposing counsel what I'd like -- I'd like to refresh the witness' memory. already been -JUDGE EGAN: admitted. MR. RYTTING: bulletin. JUDGE SEITZMAN: JUDGE EGAN: Hang on one second. -- admitted as P81, the A couple of those have been I believe this has

Which one are you looking at?

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JUDGE SEITZMAN: JUDGE EGAN:

81.

81, yeah. 81 is in evidence.

JUDGE SEITZMAN: JUDGE EGAN:

I believe I'm going to have

to defer to you for this one. MR. RYTTING: JUDGE EGAN: We'll pull it up, then. It was handed to us and I

believe they were admitted. JUDGE SEITZMAN: P81 is the bulletin. To

the extent it hasn't been previously admitted, does anyone have any objection to P81? MS. SILHAN: No. All right. P81 to the

JUDGE SEITZMAN:

extent it hasn't been previously admitted is admitted. You may proceed. Q. (BY MR. RYTTING) MR. RYTTING: And would you go to -Turn to page 53, Roy? On

page 53 the definition of ectopic eruption highlight that. Q. (BY MR. RYTTING) You see that definition.

Would you read that definition for us? A. "Ectopic eruption an unusual pattern of

eruption, such as high labial cuspids or teeth that have erupted in a position that is grossly out of the long axis of the alveolar ridge. Ectopic eruption does

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not include teeth that are rotated or teeth that are leaning or slanted especially when the enamel-gingival junction is within the long axis of the alveolar ridge." Q. (BY MR. RYTTING) Okay. And you were in the

courtroom when Dr. Altenhoff testified that this was just a clarification of the previous definition; is that correct? A. Q. Yes, I was. And there's certain parts of that definition

that are the same as before, correct? A. Q. A. Q. Yes. And what portion is that? The first sentence, the first two lines. And Dr. Altenhoff also -- you were also in the

courtroom when Dr. Altenhoff and Dr. Tadlock -- Tadlock opined that the definition of ectopic eruption, as you -- as defined before and as defined now, is similar to, if not identical, to what's in Proffit and in other learned treatises. Is that your understanding of the testimony? A. Q. That's what they claimed, yes. And so, a clarification of that definition

would result in a new definition or a new -- or a new

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description of ectopic eruption that comes closer to Proffit's or Proffit or call it the textbook definition of ectopic. Would that be a reasonable assumption?

Would expect a clarification to make it even closer? A. But it will never go closer to what's in

Proffit because Proffit talked about area limitation. Here they're talking about when the whole dentition is gone. Q. And also what about ectopic -- it says,

"Ectopic eruption does not include teeth that are rotated or teeth that are leaning or slanted." In

Proffit are ectopically erupting teeth leaning or slanting as you understand it? A. Yes, they might be. Yes. If a tooth is

slanted outside, it's ectopic. Q. A. Q. And in the Proffit article -In Proffit, yes.

-- are the examples that you're familiar from

that article, do they show a tooth that is slanting or leaning as it's growing or erupting? A. Yeah. We just showed that x-ray. If you

don't mind, put the X ray pictures again from Proffit. MR. RYTTING: Can we show the X ray

pictures of Proffit up there? THE WITNESS: We can leave this one,

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please.

Leave the one on the left side and -JUDGE SEITZMAN: We've got mixed platforms

on this one.

We're not giving Stacey time to relish in We're

her Chicago Blackhawks victory last night. working her pretty hard this morning. MS. STACEY MANELA: for all it's worth. A.

I plan on milking it

The upper rotation you can see how the molar

is a little bit lean forward or slanted but yet it's ectopic. Q. (BY MR. RYTTING) That wouldn't count under And if an anterior teeth was -Excuse me, hang on. Do

Medicaid's definition?

JUDGE SEITZMAN: you still have your pointer? THE WITNESS:

Yes. Can you point to the

JUDGE SEITZMAN:

tooth that you're referring to? THE WITNESS: very lightly slanted. slanted. This is the molar. It's

You can see it's very lightly This space is only

I would say a millimeter.

a millimeter.

It's leaned forward or mesially drift

and it's classified under ectopic eruption. JUDGE SEITZMAN: Q. (BY MR. RYTTING) Thank you.

And so, this -- that's

another -- this is another indication that the

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Medic- -- let me ask it this way:

In your opinion is

this another indication that the Medicaid definition is not the same as Proffit's or the textbook definition of ectopic eruption? A. Q. Absolutely correct. They're different.

And in your opinion -JUDGE SEITZMAN: Can you pull the mic in

front of you again? Q. (BY MR. RYTTING) In your opinion has a

definition of ectopic eruption changed from what it was in the Medicaid manual? A. Q. A. Yes. And why? Because of that added sentence that "ectopic

eruption does not include the teeth that are rotated or slightly slanted." Q. A. Q. Is that a significant change in your opinion? Yes, big changes. And what does it -- how does it affect your

ability to -- well, what does that -- what does -- what does that change do? A. slanted. It eliminate any tooth that is rotated or Again, it doesn't define what slanted means

based on what reference but it eliminated those two symptoms of ectopic eruption.

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Q. A.

And can you tell from that -Like now -- like now I have a tooth that's

severely rotated, really ectopic, really has damage but I can't rotate it because -- I cannot score it because it's excluded. Q. And what type of problems would that -- could

a severely rotated tooth cause? A. It can cause damage to the teeth itself -- to The

the tooth itself, damage to the adjacent teeth. patient might lose a tooth later.

Again we are looking

to these young people when the mother nature is strong, it can compensate for any abnormality. But once these

case is 10, 20 years later then you will see the symptoms and signs of these ectopic teeth. Q. And what -- what about the elimination of your

ability to count slanted teeth? A. Same as rotation. Any tooth that is slanted Like even the example

or tilted, you cannot count it.

that Dr. Tadlock showed a tooth that was outside, you can't count that one because it was slanted. Q. And would that mean that many -- would that

mean, in your opinion, that many children without -with severe orthodontic problems now won't qualify? A. Yes. MR. RYTTING: Can I have a moment to --

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JUDGE SEITZMAN: Q. (BY MR. RYTTING)

You may.

You were asked if you saw a

pattern in the scoring. A. Q. A. Q. A. Yes. And you answered -No. -- no. Why did you answer no?

Because this was a -- the pattern, this was Like, we see a lot of

the actual treated patient.

patients they come to the office and then they been seen by the general dentist. That's Filter Number 1.

General dentist Filter Number 2 and then later -- then lastly when they come to me maybe we convert every other patient into -- into treatment. narrowing like -- it's like an example. everybody here has a -- has a tie. So, you are only If I say, "Oh,

Is this a pattern?"

Of course it's a pattern in this room but it's not a pattern among the whole population. So, you are only focusing in one area, which are the treated patients. Of course, you will

see hundred percent because these are the patients that have been treated. But if you look the ectopic

eruption percentage versus the whole patient we saw, that percentage will go way, way, way down. Q. Thank you.

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MR. RYTTING:

Judges, I'm going to next

have to march through the patients and then address the panos and the X rays and explain why these teeth are ectopic. JUDGE SEITZMAN: just a second. (Hearing recessed for lunch.) JUDGE SEITZMAN: afternoon. All right. Good Let's go off the record

We're back on the record at 1:07 and I

believe, Mr. Hilder, we're still in your cross-direct case or Mr. -MR. RYTTING: Mr. Rytting. I'm sorry?

JUDGE SEITZMAN: MR. RYTTING:

Mr. Rytting. Oh, I'm sorry. Okay. Go

JUDGE SEITZMAN: ahead. MR. RYTTING: MS. SILHAN: Q. (BY MR. RYTTING)

May I hand him the -Oh, yeah. I'd just like to clarify one

thing for the record concerning your testimony earlier this morning. You mentioned mesial drift and -- when

you were talking about a molar that was in the Draker book? A. Q. Proffit. No. In the Proffit -- in the Proffit example

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of ectopic eruption. Can you explain what mesial drift is? A. Mesial drift is when the teeth lean a little Like if

bit forward where they're supposed to be.

they're supposed to be -- remember we're talking about a three dimensional position of a tooth, XYZ. So, if

they come a little bit forward in one of these axises, we call it mesial drift. posterior. So, mesial is a two-way That's a

They swing a little bit forward.

mesial drift. Q. A mesial drift. And you were able to tell

that from the X ray? A. Yeah. Because of the symptoms it caused the It caused the

root absorption of the adjacent tooth. damage to the tooth. Q.

And is it fair to say that when you determined

that teeth are ectopically erupted, according to the Medicaid definition, that you rely on X rays? A. Q. Yes. Okay. And it takes -- do you have any special

training in reading X rays other than you -- or is it just your orthodontics training? A. Just the orthodontics and some continuing

education courses. Q. But this is something that you -- yesterday

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there was testimony about how lay persons could tell when certain orthodontic phenomena had occurred. you recall that? A. Q. Vaguely. Is -- is -- with the X rays, does that take Do

technical ability? A. Q. Yes. You need to measure it, yes. I would like to turn to, if you

All right.

would -- you have -- you have before you the Proffit. The book -- the bible of orthodontia by Proffit. And

if you would, would you turn to the section that has to deal with problems with eruption? A. Q. A. Q. What page? It may be flagged, I believe. Yes, page 449. Okay. And we were talking about -- we've gone Flip back.

over the Medicaid definition of ectopic eruption as being an unusual pattern of eruption. A. Q. Uh-huh. And you were in the courtroom yesterday when

Dr. Tadlock testified and Dr. Altenhoff testified and they said that that was pretty much the same in meaning as an abnormal -A. Q. Yes. -- pattern -- an abnormal pattern of --

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A. Q.

Correct. -- abnormal eruption of teeth. Was that your

understanding of their testimony? A. Q. Yes, yes. But they maintain that ectopic eruption

happens very -- and, in fact, that could be substituted for the definition of ectopic -- for the definition in the Medicaid handbook, an abnormal pattern of eruption. Do you recall that? A. Q. Yes, I do. Okay. And you testified today that when you

looked up the definition of ectopic eruption doing a Google search like Dr. Tadlock did, if you put in the phrase unusual eruption of teeth, you got back to basically the TMHP manual? A. Q. you? A. Q. Correct. Okay. So, does -- does Dr. Proffit, the Correct. You didn't get back to ectopic eruption, did

author of this book, use a concept similar to abnormal eruption -- I mean, to -- to unusual eruption? A. Q. Can you rephrase it, please? What --

Does that -- does he use a concept or a phrase

similar to abnormal eruption or unusual eruption in his

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book? A. Correct. Absolutely, yes. Because underneath

the title of eruptions he has different categories and one of them is abnormal eruption, yes. Q. And what does he say about abnormal -- well,

let me strike that. Both Dr. Tadlock and Dr. Altenhoff indicated that an abnormal pattern of eruption or abnormal eruption of the teeth was highly unusual. A. Q. Yes, I recall that. What does Dr. -- does Proffit say about

abnormal eruption of teeth? A. know. Q. A. Q. A. I don't know. I have to read it. I don't

I don't remember. Well, can I refer you to Figure 38, I believe? Okay. Yes. Permanent teeth often erupt in abnormal You want me to read it?

positions as a result of retained primary teeth. JUDGE EGAN: THE WITNESS: As a result of what? Retained primary teeth. Retained?

JUDGE SEITZMAN: THE WITNESS: A. Q.

Yes, primary teeth.

Often erupt in abnormal positions. (BY MR. RYTTING) And just to -- one follow-up

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question about the -- an article that you relied upon for your testimony, the Andrews article -A. Q. Yes. -- about -- and what was the title of that

article, do you remember? A. Q. A. Q. A. The "Six Keys to Normal Occlusion." And where -- where can you find that article? It's published in the web. Of what? The American Board of Orthodontists, if you

want to take their exam, it's one of the required list of reading. article. You go to the ABO website, you'll see this

It's one of 61 articles that you need to read

and understand to pass that board certification exam. Q. And the American Board of Orthodontists,

that's the organization that Dr. Tadlock is on, correct? A. Q. A. Q. files. MR. RYTTING: And just so the Judges will Yes. Yes, sir.

He's a board member of it, correct? Correct. I'm going to turn to some of the patient

know, we've narrowed it down to five patients is all we're going to -- all we believe we need to go through.

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So, if you would, Roy, put up our patient File 36, P36 and maybe you -- if we can get to the HLD score. Q. (BY MR. RYTTING) And, Dr. Tadlock (sic), this

patient P36 what was the HL- -- the HL- -- what was the score for ectopic eruption? A. Q. 24 points. And I'd like you to explain how you got to

that -- or why you, as a clinician, got to that -- that figure. What were -- and would it be useful -- what

would be useful for you to see? A. Q. A. I did a comprehensive exam -Yes. -- which includes an intraoral examination by

my eyes for his teeth plus the X rays plus the symptoms. I'd like to have his pictures first, please,

the intraorals. So, although here you'll see his teeth are almost straight, you see a little bit of open bite but when you look into his lip and the function and furthermore into his X rays -THE WITNESS: A. And you can -THE WITNESS: contrast? Can we increase the Let me see the CEF, please.

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A.

You can see very clearly that this is a long

axis of the alveolar ridge right here and you see the teeth are slanting outside the long axis of the alveolar ridge, same thing top and bottom. is the alveolar ridge right here. Again this

This is the long

axis and you see these teeth are slanting outside. THE WITNESS: intraorals, please. If you go back to the

Could you please zoom in here? This one.

No this one. A.

You can see from this picture -- this is the

alveolar ridge and you can see it very clearly how these four front teeth are outside. So, although they

look straight but they are not where they're supposed to be. They're outside the bone. See, this is the

bone right here and these teeth you can see the edges they're way outside. Q. A. So, the -So, based on that, I score him two ectopic on

the top -- four teeth on top, four on the bottom, score 24. And he has an overbite, slight overbite here. And I came up with a score, I

gave him 1 millimeter. maybe 28. Q. A. Q. I don't know.

(BY MR. RYTTING)

And this did --

This little spacing I put 2, 2 millimeters. And does this patient have an orth- -- does he

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represent a patient that has a true orthodontic need? Needs orthodontic care? A. Of course, of course, 100 percent

dysfunctional handicapping case, 100 percent. JUDGE SEITZMAN: your right? Can you pull the mic to

That way when you're looking at the

witness, you'll actually be talking into the mic. MR. RYTTING: Q. (BY MR. RYTTING) Yes, I will. All right. Thanks. And do you

recall the score that Dr. Tadlock gave this case? MR. RYTTING: Roy? MR. ROY ORNALES: Q. A. Q. (BY MR. RYTTING) Yes. Correct? So, this child would have been denied care under Medicaid. Is that your understanding of what This is R11.36. Do we have those scores,

He gave this case a 10.

would have happened to him if Dr. Tadlock had been his physician. A. Q. Yes, he was denied. Yes.

And is he a zero -- zero for ectopic eruption

on the Tadlock score. A. Q. Yes. Is that because, based upon your understanding

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of his testimony, he was using a completely different definition of -A. Q. A. Yes. -- ectopic eruption? I think he was using the textbook definition.

He did not stay with the Medicaid manual definition. Q. So, he basically was in violation of the

Medicaid manual? MS. SILHAN: May I object, please? Can we

refrain from -- I'd like him to stop speculating as to what Dr. Tadlock might believe about this patient. JUDGE SEITZMAN: He just asked him if --

if Dr. Tadlock used the textbook definition as opposed to the Medicaid definition would Dr. Tadlock be -MS. SILHAN: Okay. -- outside the Medicaid

JUDGE SEITZMAN:

definition in violation of it -MS. SILHAN: Well, in that case I'd also

like to object that he's leading the witness. JUDGE SEITZMAN: question? Can you rephrase the

We already know he knows the question but

would you mind rephrasing it? MR. RYTTING: Well, he's answer -- I I won't take the

believe he's answered the question. Court's time.

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JUDGE SEITZMAN: question's been withdrawn. MR. RYTTING: to rephrase it. Q. (BY MR. RYTTING)

All right.

The

Okay.

I'll try -- I'll try

Would -- in -- let's see.

Dr. Tadlock scored the ectopic eruption as zero, correct? A. Q. Yes. Do you have an opinion about whether this,

this score -- and it was under -- your understanding based on his testimony yesterday that he was using a -the definition out of Proffit and not the Texas Medicaid definition. understanding? A. Q. Correct, yes. In your opinion, would his testimony be -Is that -- that was your

would his score be a violation of the Medicaid manual? A. I don't know about that. I'm not a Medicaid

expert on violation. Q. All right.

I'm a clinician. Fair enough.

Is there anything else you want to say about this patient, Patient Number 36? MS. SILHAN: Okay. Your Honor, I'm going Calling for a

to renew my -- or re-object to leading. narrative.

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JUDGE SEITZMAN:

Actually I think the So --

question can be answered yes or no. MS. SILHAN: Okay.

JUDGE SEITZMAN: leading. A. scoring. Q.

-- I don't think it's

This is Dr. Tadlock's score. There's nothing else. (BY MR. RYTTING) Okay. All right.

This is my

Let's return to

the X ray.

And would a layperson be able to

tell from this X ray that these teeth were ectopic? A. Q. A. Q. No. Can we have the measurements, please?

The -The measurements for these ones? What are those called, Doctor, the

measurements that you're referring to? A. Q. A. Q. The cephalometric measurements, the tracings. The tracings? Yes. Yes. May -- may I explain further, please? What is -- what is the significance of

this as far as your diagnosis? A. I'm going to show that this is the angle

between the mandibular plane between the jaw and the incisor tooth and the normal supposed to be 95, 95. And this patient has 1 -- almost 110. what's normal. 15-degree over

You can tell how severe ectopic that

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this is the normal 95 and this is the normal for African-American. Caucasian. We did not use a normal for

110 versus 95, 15-degree extra, two

standard deviation away from the normal. Q. So, in order to make a diagnosis -- a

diagnosis of an ectopic eruption doesn't -- requires a lot more than just looking at the front teeth -A. Q. A. Definitely. -- head on at the pano? Definitely, yes. MR. RYTTING: Number 42? Q. Can we look at Patient

And if we would go to the HLD score. And what is the score for

(BY MR. RYTTING)

ectopic eruption you gave? A. Q. A. Q. case? A. Q. The Medicaid manual definition. Okay. And what would be helpful as far as 24 points. And what teeth did you categorize as ectopic? The upper four and the bottom fours. And what definition were you applying to this

explaining why you did this? THE WITNESS: pictures, please? A. So, that's a case from the front you can tell Can we start with the

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that the front is almost straight but if you look at her profile, you immediately can tell that these teeth are outside of the bone. The lips are noncompetent.

When you look to the X ray -THE WITNESS: A. May I see that CEF, please?

And this hundred percent proves that these This -- this is the long axis of As a

teeth are outside.

the alveolar bone and the teeth are outside.

matter of fact, you can see the teeth are biting -- her top teeth are biting over the bottom ones. Q. (BY MR. RYTTING) And what is -- and what type

of problems can that cause when the front teeth are resting on the bottom? A. Dysfunction, trauma in the future, teeth keep

coming forward, the hitting of the gum. MR. RYTTING: Dr. Tadlock? Q. (BY MR. RYTTING) And Dr. Tadlock, what was Can you put up the HLD for

his score for ectopic eruption? A. Q. A. Q. Six points. And, Dr. Kanaan, what was Dr. Tadlock's score? Six points, total of 12 points. And this is another child that would have been

denied care under Medicaid? A. Based on Tadlock's scoring, yes.

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Q. A.

Is this an example of true orthodontic need? Correct, hundred percent. JUDGE EGAN: I'm sorry. True orthodontic

what? MR. RYTTING: orthodontic need. JUDGE EGAN: Q. (BY MR. RYTTING) Thank you. So, is there -- would you Would they help you? Truth orthodontic -- true

like to look at the tracings? A. good. Q. I'm good.

Unless you want to see them but I'm

And, again, this is -- okay. MR. RYTTING: Patient 37. And, again, your -- what's

Q.

(BY MR. RYTTING)

the score that you gave this child for the ectopic eruption? A. Q. are? A. Q. A. Q. The upper centrals and upper left canine. And the total score for the patient was? 29 points. Let's -- and -MR. RYTTING: THE WITNESS: Can you put up the X ray. Please put the pano, the 21 points. And the teeth that were ectopically erupted

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panoramic X ray. A. here. You can very clearly see that ectopic tooth The patient is missing two -- the patient is So, this tooth even if it looks

missing two laterals.

straight but it's ectopically supposed to be right here and the tooth has drifted all the way to the left. THE WITNESS: please? A. So, that's how it looks. When you look here, Can we go to the intramural,

it doesn't look that bad; but when you look into the X ray, you realize that there's a tooth coming up here. This tooth drifted all the way backward to touch this tooth was supposed to be right here. So, based on the

X rays and the clinical findings, I put this one ectopic, this one ectopic and the other one ectopic. Q. (BY MR. RYTTING) Now -- and, again, this

represents a patient with a -- in your opinion, has a true orthodontic need? A. Q. for -A. Q. A. Braces and possible surgery --- orthodontic care? To bring the tooth down. MR. RYTTING: And, again, if you would 100 percent, 120 percent. And by that means orthodontic need for braces

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again bring the score that Dr. Tadlock gave this child, Roy. MR. ROY ORNALES: Q. (BY MR. RYTTING) This is R11.37.

And his score for ectopic

teeth was what? A. Q. A. Q. Six points. So -- and the total score? 15. And would that result in a denial from

Medicaid, in your opinion? A. Q. Yes, it would. Move on to -- and one -- this is another --

this is another case, in your opinion, where you have to look at the X rays? A. Q. A. Most definitely, yes. Yes.

The pano will give you some information? A lot of information that -JUDGE SEITZMAN: Pull the mic closer.

Thank you. JUDGE EGAN: THE WITNESS: lot. Q. Not some, a lot. (BY MR. RYTTING) And when he -- when he What did you just say? A lot of information. A

scored the ectopic teeth, do you -- in your opinion is the explanation for that low score the fact that he

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used a -- call it the Proffit definition of ectopic eruption? A. Q. A. Correct, yes. And he did not use the Medicaid definition? I guess so. Yes. If we would, let's go to

MR. RYTTING: Patient number 43.

MR. ROY ORNALES: MR. RYTTING: Q. (BY MR. RYTTING) P43.

It's P43?

And, again, you have an HLD

score of 24? A. Uh-huh. Yes. And will you put up the

MR. RYTTING: X ray. THE WITNESS:

Yeah.

We have a tooth right

here -- may I see the pano, please? I want you to please, focus right here. A. This is another case of the Judges that I can

show you very clearly if you have a problem with one tooth how these two front teeth are slanted this way. So, they're not straight. You can see very clearly

they're leaning to the left side of the patient. MR. RYTTING: intraorals. A. See the intraorals, they don't look that bad. And if you would, put up the

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Like if somebody comes in, "Oh, these teeth are straight." But the reality, no, they're not straight. See, this is the top midline. This

They are tipped. is the bottom one. discrepancy. Q.

You have like 3 -- 3 millimeter

And what's the significance of that for an

orthodontist? A. Well, then it will click your mind, "Oh, Take an X ray and see

there's something going on. what's going on."

So, you take an X ray and you see

this tooth laying over there. Q. And, again, does this child represent a case

of true orthodontic need for -A. Q. A. 100 percent. -- for braces? 100 percent, yes. MR. RYTTING: And, again, can we compare

this to what Dr. Tadlock -- Dr. Tadlock's score on the HLD? MR. ROY ORNALES: Q. (BY MR. RYTTING) R11.43.

And what's the score he gave

for ectopic eruption? A. Q. A. That's his scoring? Yes. You sure?

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If that's the scoring, then he gave it zero. Q. A. Q. And what was his total score? One. Okay. And under your understanding of how

Medicaid works, would this child have been denied care if Dr. Tadlock had been his dentist? A. Q. A. Q. Of course. Or her dentist? Of course. And what do you think, in your opinion, is the

explanation for the zero on the ectopic eruption, the fact that Dr. Tadlock was using a nonMedicaid definition of ectopic eruption? A. Q. A. This what and what Mr. Garcia was telling him. Pardon me? Would you repeat that?

I said this one -- I agree this one and what

Mr. Garcia, Arthur Garcia was telling him in his deposition, was he wearing his eyeglasses. MR. RYTTING: Let's turn to page (sic) 47

and the HLD score that Dr. Kanaan gave for that patient. A. Q. A. 24 points for ectopic. (BY MR. RYTTING) 33 for total. And, again?

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Q. A.

And what teeth did you score ectopically? The four front, the four bottom. MR. RYTTING: Please put up the

intraorals. Q. (BY MR. RYTTING) Are these the intraorals for

Patient 36? A. Q. A. Are they? Yes. So -MR. HILDER: MR. RYTTING: intraorals for Patient 46. MR. ROY ORNLES: MR. RYTTING: Q. A. (BY MR. RYTTING) Patient 40. Patient 40. These are

I apologize. P47. I apologize.

P47. Okay.

So, if you only limited your evaluation on the

front teeth, they don't look that bad; but if you look to the top, bottom and then -THE WITNESS: CEF, please. Can you exchange the contrast here or no? JUDGE EGAN: A. You can enlarge. And then please pull the

Well, you can see how these incisor edges -You can see this is her lip and you

that's her lip.

can see clearly how these incisors are biting over half

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in front of her middle, but this patient is really -rather than bite on the teeth, she bites on her lip. So, this is a dental necessity, medical necessity, hundred -- hundred percent handicap malocclusion. can see it very clearly, upper teeth biting on the bottom lip. MR. RYTTING: Okay. If you would put You

Tadlock HLD score for the patient. MR. ROY ORNALES: Excuse me. Q. R11.47. And Dr. Tadlock's score for R47 point -- I'm sorry.

(BY MR. RYTTING)

the ectopic eruption, what was that? A. Q. A. Q. 0. Total score for this patient? 8. And is it your understanding that Medicaid

would have denied care for this patient -A. Q. A. Q. Yes. -- if Dr. Tadlock had been her dentist? Yes. And what explanation, in your opinion, after

hearing Dr. Tadlock's testimony yesterday, is the reason -- what -- what explains that zero for ectopic eruption? A. I don't know. Maybe -- because even here he

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didn't put crowding here. crowding.

Severe -- she has severe I don't

He didn't put ectopic or crowding. That's his scoring.

know why he did that. Q.

Do you think -- when it comes to ectopic

eruption, what definition do you think he was using based on your -- his testimony yesterday? A. Q. The Proffit -- the Proffit definition. And -- and, again, the Proffit definition is

different -- different from the Medicaid definition; is that correct? A. Q. Absolutely correct. We have a -- you were asked by -- by opposing

counsel about the -- your scores and Dr. Orr's scored. Is that -- do you recall that earlier this morning to be asked to compare your scores to Dr. Orr's scores? A. Q. A. Q. Okay. Do you recall that? Yes, she asked me that. Yes, sir.

And there were significant differences in --

in some of the scoring; is that correct? A. Q. Possibly, yes, uh-huh. Okay. I mean, at least the -- you -- the

points -- points that you gave on occasion were different from Dr. Orr's. A. Yes. Is that fair to say?

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Q.

Okay. MR. RYTTING: I'd like to put up the --

it's a -- you can either use it demonstrative exhibit or probably as an exhibit that the Court asked for, which is a summary of all the scores of all the doctors. JUDGE SEITZMAN: given it to opposing counsel? MR. RYTTING: I believe it's P77. MR. TONY CANALES: P77 is the spreadsheet P77 I believe is what it is. I didn't -- have you

I prepared earlier, forwarded a copy to opposing counsel. They told me they were going to look at it,

if they felt there was an error somewhere -- I have not heard any more but it's the column by column of the doctors. JUDGE EGAN: objection on it. I don't recall having an

I thought we admitted everything

except the Exhibit 76. MR. KHAROD: Your Honor, this was not one

of the three admitted exhibits. JUDGE EGAN: MR. KHAROD: Okay. This is one of those last

week I remember we were exchanging other documents when we asked --

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I'm sorry. K-H-A-R-O-D. JUDGE EGAN: MR. KHAROD:

Mr. Kharod is my name.

Okay. So, it's one they had

e-mailed to us over the weekend asking whether we'd stipulate to it. We found some errors. We said we'd

rather not agree to it until we have a chance to review all the numbers and we can create our own summary based on the numbers that we have. JUDGE SEITZMAN: opportunity to do that? MR. KHAROD: To create our own summary? Yes. I can put one And have you had an

JUDGE SEITZMAN: MR. KHAROD:

We have not.

together but -- he had asked -- Mr. Canales asked me if I knew which numbers were mistaken. time. I didn't at the

If they want to use it as a demonstrative and

represent that it represents the correct numbers that are in each of the expert reports, then they can introduce it for that purpose but -JUDGE SEITZMAN: Well, we've had a number

of summaries; and as long as it's a summary of what's in evidence, if it needs to be corrected, then we've given leave, I think for both parties at this point, to go back and make corrections, even this morning.

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So, is there a substantive objection to 77, P77? MR. KHAROD: they are. I think the scores are what

If this is what they want to use to display I think

what those scores are, then they can. that's -MR. TONY CANALES: objection. JUDGE SEITZMAN:

So, there's no

So, I take it it's a lot

like the summary that Ms. Silhan used this morning. JUDGE EGAN: MR. KHAROD: And the summary they used. Yes, but I don't believe that

summary was put in evidence. JUDGE SEITZMAN: MR. TONY CANALES: MR. KHAROD: JUDGE EGAN: MR. KHAROD: I believe it was. Yes, it was.

If -- if that's -- I'm sorry. This one was put in. If it's their summary of the

expert numbers and those numbers reflect what are the actual HLD scores of those experts, then it is what it is. JUDGE SEITZMAN: I take it back. It was

the summary -- maybe it was yesterday -- with Dr. Tadlock. Actually had Dr. Orr yesterday. So I may be,

you know, suffering from acute hospital disorientation.

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But we had this summary and we had asked the parties to expand this summary of all the point scores, of all the people who did the reviews. was in the -JUDGE EGAN: is. JUDGE SEITZMAN: I think it was I don't know what number it I don't know it's -- it

Dr. Tadlock because we excluded the calculations, the mathematical calculations at the bottom from the exhibit but I believe he ended up testifying to the -to the math. exhibit. This is similar, is it not? MR. TONY CANALES: Yes, your Honor. P77 I But I believe the scores came in as an

forwarded it to them last Friday, I believe. JUDGE SEITZMAN: MR. TONY CANALES: No, no. Is it similar -All it shows

Yes, yes.

is the P number of the patient and the four, five columns of each respective doctor. anymore comments. It doesn't have

They had an objection at one time I took that out.

that it said privileged or something. It has no comments about anything. based on whatever is in evidence. MR. KHAROD:

Strictly it's all

This is -- just answer a

question whether it was a similar type -- it's a

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similar type of document.

The difference in

Dr. Tadlock's spreadsheet and this spreadsheet we intend to offer is that it would give not just the overall HLD scores but the components of the scores by two and that information -- that information is not on P77 they're offering. JUDGE SEITZMAN: But is P77 substantially

similar to the score sheet that was introduced in evidence through Dr. Tadlock with the exception of the mathematical calculations? MR. KHAROD: I don't believe it is it What their P77

because it doesn't break down by tooth. it says it has five columns doctor the -JUDGE SEITZMAN: haven't seen it. MR. KHAROD: Okay.

Well, let's see P77.

We

MR. TONY CANALES: for me. JUDGE SEITZMAN: second. (Off the record) JUDGE SEITZMAN: record at 1:47. Mr. Canales.

He's pulling that out

Let's go off the record a

All right.

Back on the

MR. TONY CANALES:

Yes, your Honor.

Thank

you for allowing me to propose Exhibit 77 which we're

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offering in evidence as a summary of P77, which you have in your notebooks already. JUDGE SEITZMAN: wouldn't call it lengthy. All right. We had a -- I

Call it intermediate

discussion off the record about this. Is there any objection from the Office of Inspector General with respect to the tender of Exhibit 77 understanding that the parties have agreed that if they -- in their review of it if they find that there is a calculation error or transposition error and they're both in agreement, they will correct it and file -- petitioners will file a substitute copy. With that caveat, is there any objection to 77? MR. KHAROD: Based on your excellent

summary of what was discussed, we have no objection. JUDGE SEITZMAN: And I'll also add that it

doesn't preclude a substantially similar or expanded exhibit from the OIG. With that, 77 is admitted. MR. RYTTING: And, Roy, would you, please,

call up what's been admitted as Exhibit 77. Q. (BY MR. RYTTING) And do you recognize this,

Dr. Kanaan? A. Yes. I saw it recently, yes.

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Q.

Have you had a chance to examine the scores of

Dr. Evans and Dr. Tadlock? A. I did not look into the individual ones but I I can see that like on this Here we have 19. 11 point

look into the total ones. patient Dr. Evans gave 8.

different for Patient Number 7.

You have here 16 point 16 points

difference between D. Tadlock and Dr. Evans.

difference on Patient Number 19, which will -- which will show a different -- differently how subjective the issue is. Evans, zero; Tadlock, 16. Q. Is there any -THE WITNESS: A. Can we go to the next page?

See here, eight points different, six points,

ten points different, six points, four points. THE WITNESS: A. Next page, please.

Three, six points here different, six points.

Clearly it show you how subjective the issue is. Q. (BY MR. RYTTING) And these are -- these are

total HLD scores, correct? A. Q. Yes. And with Tadlock using what he considered to

be an objective definition -A. Q. Yes, sir. -- of ectopic eruption?

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A.

Correct. JUDGE SEITZMAN: Mic, please.

Q.

(BY MR. RYTTING)

Using an objective

definition or a textbook definition of ectopic eruption and we still see major -A. Even with objective definition, you still see

big variation. Q. And we're seeing with -- and just for

clarification is what Dr. Proffit said was an objective? A. Q. Yes. So -- and yesterday Dr. -- or I believe it was Maybe the day before. Dr. Tadlock

yesterday.

testified that he did several Google searches -- you were in the courtroom for that? A. Q. A. Q. A. Q. Yes. -- based on ectopic eruption? Yes. Did you try to reproduce his results? Of course. What did you -- when -- and what did you do to

reproduce it? A. I went to the same website that Dr. Tadlock

use, which is PubMed.org and I put ectopic eruption on the search field to see how many time -- how many

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articles came out.

And I found out that, exactly what There's 1,395

he said, there are several hundreds.

articles that contains the word ectopic eruption. However, if you look further down about these articles, some of them they talk about lung cancer. they talk about brain cancer. teeth. Some of them

Some of them talk about

So, to be -- and some of them are

cross-referenced like the article might mention in the reference ectopic eruption. counted. So, when I did PubMed ectopic eruption only in the title, it narrowed it down to 140 articles. Because Medicaid doesn't take -- doesn't accept the molars as ectopic erupted. I put ectopic eruption in So, it's going to be

the title, not molars and it narrowed it down to 48 articles. If you put ectopic eruption definition, you And I have it on my laptop. We can do it right

have no -- no articles.

We can go right now and Google.

now, if the Judges want to confirm my numbers. Q. A. I don't believe it'll be a need for that. That's for the Judges if they want to see what I have it on my laptop. I put

I'm talking about. every screen.

JUDGE SEITZMAN: attorney on this one.

We'll be guided by your

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Q.

(BY MR. RYTTING)

I think that was a They have the wherewithal to

sufficient explanation. corroborate.

Dr. Kanaan, did you ever try to misrepresent your scores -A. Q. A. Q. system? A. Never. MR. RYTTING: I will pass the witness. Judge Egan? Oh, I did. Anyway, Never. -- on the HLD score sheet? Never. Did you ever attempt to fraud the Medicaid

JUDGE SEITZMAN: JUDGE EGAN: No.

you're right just before lunch. JUDGE EGAN: this. Oh, you may have answered

But between 2008 and 2011 at Antoine Dental

Center how many Medicaid patients were you treating as an or- -- you were the orthodontist, correct? THE WITNESS: Yes. It was

I don't recall the exact number. me or Dr. Nazari. I don't know. Do you have any idea?

JUDGE EGAN: it -THE WITNESS:

Was

Maybe 2,000, maybe.

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JUDGE EGAN: THE WITNESS: JUDGE EGAN:

2,000. 2 or 3,000, I don't know. And these patients would only

get to you after they had gone through a general dentist and been assessed as needing orthodontia work or needing an evaluation for orthodontia work? THE WITNESS: got the patients. That is one at the outset I

I might have gotten them referred

from the general offices in the area, from the children's hospital for the -- if they have cleft palate or lingual problems. JUDGE EGAN: Okay. So, the hospital might

send them to you as well -THE WITNESS: JUDGE EGAN: Yes, ma'am. Yes.

-- if they have a cleft

palate or some orthodontural need? THE WITNESS: JUDGE EGAN: Yes. I think that's all I have. Dr. Kanaan, under the

JUDGE SEITZMAN:

definition that was in the more recent bulletin -THE WITNESS: Uh-huh. -- that eliminated -- I

JUDGE SEITZMAN:

think your testimony and your opinion eliminated certain teeth or actions of teeth from qualifying for ectopic eruption, under that current definition that --

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as you understand it, what would qualify as -- what would qualify as an ectopic eruption? THE WITNESS: Dr. Linda Altenhoff. JUDGE SEITZMAN: THE WITNESS: Altenhoff. JUDGE EGAN: THE WITNESS: Okay. I don't know. So, you're not clear as I'm sorry? You would need to ask

We need to ask Dr. Linda

JUDGE SEITZMAN: to what would qualify? THE WITNESS: No.

JUDGE SEITZMAN: of the clarifying -THE WITNESS: JUDGE EGAN: THE WITNESS:

Because of the -- because

Exclusion. -- or changed language? Yes. I have one question and I

JUDGE SEITZMAN: thought about it. very artfully.

I don't really know how to phrase it

So, accept my inartful phrasing.

But if I had a box of quart bottles in a container -- and let's say it would hold 12. THE WITNESS: Uh-huh. -- and then tried to take

JUDGE SEITZMAN:

a liter bottle and put it into that box, there's

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obviously not enough space for it. gonna happen.

So, something's

And so, what I'm trying to understand is

in the mouth, when you were describing what's happening with the teeth, are there two possibilities as I -- so as I try and put that liter bottle into this full box of quart bottles, one of two things can happen, it can push other bottles out of the way or it can change its orientation -THE WITNESS: Uh-huh. -- to try and fit into

JUDGE SEITZMAN: whatever space is there.

Is that essentially -- do

both those things happen in the mouth as a tooth is trying to come in? THE WITNESS: whole box might expand it. JUDGE SEITZMAN: corners of the box. THE WITNESS: Yes, yes. Okay. So, I breakdown the To a degree, yes, or the

JUDGE SEITZMAN: THE WITNESS: muscles -- yes, uh-huh. JUDGE SEITZMAN: questions I had. MS. SILHAN: five-minute --

It depends on how the

Okay.

That's all the

May I ask for a quick

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JUDGE SEITZMAN: MS. SILHAN:

Sure.

-- break and I promise we'll

be quick when we come back. JUDGE SEITZMAN: record for five minutes. (Off the record) JUDGE SEITZMAN: the record at 2:05. Ms. Silhan? REDIRECT EXAMINATION BY MS. SILHAN: Q. Okay. I'd like to keep this quick. I know All right. We're back on Okay. Let's go off the

you have to go. questions.

So, I'll try to ask just a few

You described a handicapping malocclusion as measured by the HLD index just now? A. Q. Yes. You said that measures extreme deviations from

the norm; is that right? A. The HLD measures the absence -- the presence

or absence and the degree of the handicap. Q. Okay. Do you recall testifying that it

measures extreme deviations from the norm? A. Q. Yes, uh-huh. Okay.

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A. Q.

That's a different issue, yes. Did all of your patients in this sample have

extreme deviations from the norm since you qualified all of them on the HLD index? A. Q. Based on my comprehensive exam, yes. Thank you. You also testified that ectopic eruption occurs when teeth are crowded. Does that mean that

there was no ectopic eruption in patients you did not diagnose with crowding? A. Q. Say that again? Well, you indicated that ectopic eruption

results from crowding. A. result. It might result from crowding. It might

Ectopic eruption is a description of the Crowding is a quantitative measurement.

situation. Q.

So, all of the patients with -- with

apparently straight teeth that you scored as ectopic, were those caused by crowding? A. Q. A. Q. No. No? No. Okay. And do you recall Patient 37? Let's I

see if I can pull up the photos for that patient. don't have the photos listed.

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MS. SILHAN:

But P37-015 is the HLD.

Let's see if we can find the photos in there. Q. A. Q. (BY MS. SILHAN) Yes, uh-huh. And you indicated there was some big issues Do you recall this patient?

with the upper front teeth, correct? A. Yes. He has impacted tooth, yes. JUDGE SEITZMAN: closer. THE WITNESS: Q. (BY MS. SILHAN) Yes, uh-huh. You also -- you also noted I'm sorry. Pull the mic

that Dr. Tadlock gave him a different score for ectopic corruption; is that correct -- eruption. A. I think he gave him six. I scored seven. I apologize.

He only scored two

of the teeth. Q.

Do you recall that Dr. Tadlock scored the same

upper teeth you pointed to -A. Q. A. Q. He scored upper left one and upper left three. -- earlier? Yes. Okay. He only scored part of them. And Patient 43. Can we pull up P43 and go I

MS. SILHAN:

back to that -- that CEF, please, or the pano. apologize.

I don't which -- I don't have the page I --

number offhand.

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Q.

(BY MS. SILHAN)

Okay.

This is the patient

with the ectopic tooth just pushing up underneath the lower four incisors, correct? A. Q. A. Q. A. Q. A. Q. Yes, uh-huh. Did you score that tooth -I did not. -- that canine as ectopic? I did not. Okay. I could have. Okay. Let's turn quickly, moving on, to the I documented but I did not.

Proffit text, which your counsel referred to as the bible of orthodontia. something here. Please start with "in fact." 6 of Proffit. A. "In fact, perfectly interdigitating teeth It's on page I'm gonna have you read

arranged along a perfectly regular line of occlusion are quite rare." Q. Thank you. I'd also like to turn to some of the other texts that your counsel provided to me during lunch. MS. SILHAN: Q. (BY MS. SILHAN) Can we pull up P83, please? And while this is being

pulled up, this is the study of 120 casts, correct?

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A.

Yes.

It's more than 120.

It's 1,000

something. Q. please. A. Okay. Can -- let's read the first line,

Can you read the first line, please? "This article will discuss six significant

characteristics observed in a study of 120 casts of nonorthodontic patients with normal occlusion." Q. So, these are what are considered normal in

this article, correct? A. Q. Yes. Okay. Let's go down. Can you scroll down to

the paragraph beginning with a gathering of data? MS. SILHAN: I'd like you to highlight

where it starts with "models selected were." Q. (BY MS. SILHAN) Can you, please, read how

they selected the 120 modeling that -A. Q. A. Yeah. They have -- they have criteria. Please read.

I'm asking -- thank you.

Models selected of teeth which, number one,

had never had orthodontic treatment, which means they exist in nature; Number 2, were straight and pleasing in appearance; Number 3, had a bite which looked generally correct; and, Number 4, in my judgment would not benefit from orthodontic treatment. Q. Okay. So these were not candidates for

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orthodontic treatment, correct? A. Q. Well, it would be no. Okay. Yes. We're

Let's go to page 2, please.

going to go to the third paragraph and we're going to talk more about these models just quickly. highlighting -- are we on page -- yes. Okay. Let's start with "and." Let's Let's start

highlight and talk about what that says. Can you read starting with "and"? A. Q. A. And? Where's and? I don't see it.

The third line.

And the best?

"And the best in nature (the 120

nonorthodontic normals) would reveal differences which, once systematically identified, could provide significant insight on how we could improve ourselves orthodontically. differences." Q. Okay. So, when this article talks about Deliberately, we sought those

normal occlusion, they select 120 models of the best in nature, correct? A. Q. A. No. Can you read about those models one more time? It says we need to look back. That comparison

of the best in treatment results.

So, they have 1,150

treated cases and at that time they were able to

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collect 120 cases. shape. Q.

They were nontreated in a good

So, to compare this one versus that one. Okay. So, they're talking about the best in

nature of untreated cases and comparing those to treated cases, correct? A. Q. A. Q. Yes. Okay. Thank you.

The ones that they were able to come up with. Thanks. MS. SILHAN: Okay. Now, let's go to P84,

please, and I want to go to the second-to-the-last page. Q. I don't have a page number. (BY MS. SILHAN) I'm sorry.

And the discussion section

and can you, please, read the two -- first two sentences in the paragraph beginning with "probably"? A. Probably the most irritating issues surround The ingenuity of dentists

the use of the word ectopic.

to stretch this word over never considered possibilities is incredible. definition -Q. Thank you. Okay. Thank you. That's all. Thank Our expanded

MS. SILHAN: you.

I think we're all set.

JUDGE SEITZMAN:

Mr. Rytting, subject to

the recross, direct and our questions?

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MR. RYTTING: question.

Yes, just one -- one

RECROSS-EXAMINATION BY MR. RYTTING: Q. When it -- when it comes to the Medicaid

definition, which is an unusual pattern of eruption -A. Q. Uh-huh. -- is that -- is that a -- what -- do you

consider that a broad definition of -- a broad or narrow definition? MS. SILHAN: I'd object, please. That's

outside the scope of my recross and outside the scope of your questions. JUDGE SEITZMAN: into -MR. RYTTING: Oh, it was her -- I would Can you tie it back

tie it back into her questions regarding the ingenuity of apparently California dentists to expand beyond what -- how California defined ectopic eruption. JUDGE SEITZMAN: That's pretty stretched,

if you can find a way to tie it. MR. RYTTING: Okay. Actually I think at

this point I can pass Dr. Kanaan. JUDGE SEITZMAN: for Dr. Kanaan? Okay. Anything further

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Thank you, Dr. Kanaan. THE WITNESS: Thank you.

You can step down. Thank you.

JUDGE SEITZMAN:

Does anybody object to Thank you.

letting him go back to his house, his wife? THE WITNESS: much. JUDGE SEITZMAN: (Off the record) JUDGE EGAN: Number 529-13-0997. 2013. Thank you.

Thank you so

Let's go off the record.

We're reconvening in Docket

It is now 2:25 p.m. on May 30th,

And are the parties ready to proceed and you're ready to call your next witness? MR. WATKINS: MR. WINTER: JUDGE EGAN: attorney -MR. WINTER: JUDGE EGAN: All right. Yes, I am, your Honor. -- sponsoring this witness? I will remind the parties that Yes. We are, Judge. Mr. Winter, will you be the

there was a prehearing conversation about any discussions that were initiated during any informal settlement conferences and we have instructed both parties not to have the witness testify about anything that happened in those conferences with that expressly

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from us. JUDGE SEITZMAN: And my understanding was

the Office of Inspector General had agreed not to go into that line of questioning. MR. WINTER: Judges. That is correct, Judge --

We do not intend to delve into anything that

transpired between representatives of the OIG and the petitioner in any informal conference. JUDGE EGAN: MR. WINTER: JUDGE EGAN: Thank you. May I proceed, Judge? Yes, you may. Let me make

sure the witness has been sworn. JACK STICK, having been first duly sworn, testified as follows: DIRECT EXAMINATION BY MR. WINTER: Q. Good afternoon. MR. WINTER: For the record, my name is

Raymond Winter, W-I-N-T-E-R, with the Office of Attorney General representing the Office of Inspector General. Q. (BY MR. WINTER) Would you, please, state your

name, sir? A. Q. My name is Jack Stick. And how are you currently employed?

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A.

I'm employed as the Deputy Inspector General

for Enforcement at the Office of Inspector General. Q. Sir, are you a licensed attorney in the state

of Texas? A. Q. I am. Have you previously served in the Texas State

Legislature? A. Q. A. I have. From when until when? I was elected in 2002. I left office in

January of 2005. Q. Have you also served as a criminal prosecutor

at both the state and federal level? A. Q. I have. Have you served as a municipal court judge in

the City of Bee Cave? A. Q. I have. Is there any other employment that you would

like to tell the Court, the Administrative Law Judges that you've had prior to assuming your current duties? A. Q. No. Would you, please, tell the Administrative Law

Judges that are -JUDGE SEITZMAN: Q. (BY MR. WINTER) Hold it closer.

-- what was the Office of

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Inspector General, the HSSC? A. The Office of Inspector General was created in

2003 by House Bill 2292, which was the omnibus consolidation of all of the state's health and human service agencies. I think there were 13 of them. They

were consolidated into five under umbrella enterprise of the Health & Humans Services Commission. As part of House Bill 2292, we also created the Office of Inspector General, which is charged with monitoring all of the state Health & Humans Services employees expenditures and programs to ensure against and interdict waste, fraud and abuse. Q. Mr. Stick, is HHSC or the Health & Human

Services Commission the single state agency in the state of Texas responsible for administering the Medicaid program? A. Q. Yes, it is. And does the OIG -- HHSC OIG have

responsibility for oversight and interdiction of waste, fraud and abuse in all HHSC programs, including Medicaid? A. Yes. The creation of OIG came about in a What we ended up doing

little bit of a convoluted way.

was attaching OIG administratively to the Health & Human Services Commission in order to draw down federal

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funds.

As part of that, OIG is charged with monitoring

and investigating any allegations of waste, fraud and abuse in Title XIX or Medicaid programs. Q. You say that HHSC OIG, which I'm just going to

refer to as OIG for the rest of the day if it's all right with you, is administratively attached to HHSC? A. Q. That's correct. Does that mean for operational purposes OIG

operates within the discretion of the inspector general and senior staff separate and apart from the HHSC chain of command? A. Yes. The inspector general is a gubernatorial The Office of Inspector General is an

appointee.

independent agency reporting to the governor. Q. And the gubernatorial appointee, the inspector

general, who is that? A. Q. A. Q. His name is Douglas Wilson. And you are one of his deputies? That's correct. And are you the deputy specifically for

enforcement? A. Q. Yes. Would you, please, explain for the

Administrative Law Judges what your duties and responsibilities are as the deputy for enforcement at

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OIG? A. Sure. The enforcement division is the

division that handles all of the investigations, except for HHSC employees or -- or health and human employees. That's done by a different division, which is internal affairs. My division, the enforcement division is divided into three sections. Medicaid provider integrity. The first section is Medicaid provider We

integrity is exactly what it sounds like.

investigate providers in the -- in the Title XIX program to ensure and -- ensure against and interdict waste, fraud and abuse when it occurs. The second

division is the general investigations division which focuses on the supplemental nutrition assistance program, SNAP or what used to be called food stamps; TANF, the Temporary Aid to Needy Families, which is cash assistance; and the WIC program. So, we

investigate both recipients as well as retailers. The third main area is the data analytics and intelligence units, which is exactly what it sounds like. Q. It's data analytics. Now, the section of yours that's of concern to

us today is the Medicaid program provider integrity unit section?

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A. Q.

That's correct. Approximately how many staff do you have

working in MPPI? A. Q. It fluctuates but between 90 and 95. Is it fair to say, sir, that the job of your

division is to undertake investigations of possible violations of Medicaid, rules, regulations and policies? A. Q. That's correct. In order for you to do that job competently

and thoroughly, is it necessary for you to have an understanding of those very same Medicaid policies? A. Yes. In order to enforce the policy, it's

important to not only what the policy is, in other words, what the -- what the state statutes or the state regulations or federal statutes and regulations are but also the policies as set forth in the Texas provider -or Texas Medicaid Provider Procedure Manual, TMPPM; but beyond that it's also important to understand the genesis of the policies, why the policies exist. It's

important to understand that because if you're going to enforce those policies, you have to understand them fairly thoroughly. Q. Mr. Stick, does this -- the breadth of your

understanding, does it extend beyond just Medicaid

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generally into program specific areas? A. Yes. Title XIX is a big program. I think it

would be difficult to -- to know particularly well all of the different areas. But what generally happens is

the more time we spend in a -- in a discrete area of investigations the more familiar we all become with the policies and procedures in that area. Q. What area of Medicaid have you been spending a

lot of time in, particularly recently, say within the last 12 months to 18 months? A. There have been several of them, but I think

the one most relevant is the orthodontic program. Q. Mr. Stick, is it fair to say that not only are

you familiar with the Medicaid policies that you also have to some extent a role in helping shape it? A. We definitely have input into that. There's a

group called the BMW group, the benefits management work group, which is comprised of various entities within the Health & Human Services Commission. Medicaid CHIP would be a part of that. So, the

The medical The dental

director's office would be a part of that.

director's office would be a part of that and OIG is a part of that. And we meet on a regular basis to discuss policies, to discuss changes in policies, new policies

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and OIG definitely has a role in that offering, as best we can, insight into areas of weakness in the program where program integrity might be compromised and areas where we can strengthen the program as well. Q. Mr. Stick, to your knowledge has Texas

Medicaid undertaken a change in its policy with respect to the interpretation or application of the standard for eligibility of orthodontia benefits within the last year? A. Q. No. Has Texas Medicaid undertaken any change in

its policy regarding the interpretation of the meaning of ectopic eruption within the last year? A. Q. years? A. Q. That's correct. At any time over the -- your tenure at OIG has No. You've been with OIG for, approximately, two

Texas Medicaid undertaken a change in its policy regarding eligibility for the orthodontia benefit? A. Q. No. At any time over the last two years that

you've been at OIG has Texas Medicaid undertaken any type of change of its interpretation of ectopic eruption?

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A. Q.

No. Mr. Stick, are you familiar with a Medicaid

provider -- an orthodontia provider known as Antoine Dental Center or an orthodontist named Dr. Behzad Nazari? A. Q. Yes, I am. Has your office undertaken an investigation or

any investigations of this provider? A. Yes. we've initiated three separate One we began in 2007. That's still

investigations. pending. One --

JUDGE EGAN: I understand. 2011? THE WITNESS: JUDGE EGAN: even got there? THE WITNESS: JUDGE EGAN:

Okay.

Let me just make sure

You didn't come on board with OIG until

That's correct. So, these occurred before you

Yes, ma'am. All right. So, in 2011 there

was an investigation that you're aware of? THE WITNESS: A. Yes. There was an --

There's an investigation pending right now There was one pending

that was initiated in 2007.

right now that was initiated in 2008 and there's another one pending, which is the one we're here today

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on, which was initiated in 2011. Q. (BY MR. WINTER) So, to your knowledge there

are three separate and distinct investigations arising out of separate facts of Dr. Nazari and Antoine Dental, correct? A. Q. That is correct. But we're here today on the most recently

initiated investigation, which is the one started in 2011? A. Q. Yes. Is that -- was that investigation begun under

your watch? A. Q. A. Yes. When did that investigation begin, sir? In late June or early July of 2011 I asked

that my division prepare a -- an analysis of the top utilizers of the orthodontic benefits program to determine whether or not we had an ongoing problem in the overutilization of the orthodontic program. And I

was given within a couple of days a list of about 55 providers who were the highest utilizers of orthodontic services in Texas. Q. Mr. Stick, what prompted you to instruct your

staff to pull these orthodontic billing records? A. Well, we had been aware for sometime -- OIG

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had been aware for sometime that there were ongoing problems with the -- with the orthodontic problem. 2008 OIG conducted an audit of the Texas Medicaid Medical Partnership, TMHP, which is a private partnership comprised primarily of ACS Healthcare, now owned by Xerox, and a number of other private companies. In 2008 the OIG determined that ACS was not actually conducting a prior authorization investigation. In other words, providers would submit In

HLD scores and supporting information but ACS wasn't really reviewing the information at all. They were

simply seeing whether or not the HLD score sheet read 26 or better; and if it did, well, then the prior authorization was approved. Q. I think you misspoke a moment ago. You said

your investigation reached the audit back in 2008 stated -- found that the contractor was not doing prior authorization investigations. authorization reviews? A. Right. Exactly. They weren't reviewing You meant prior

information that was supporting it. Q. We're going to talk a little bit more about

the Medicaid contractor, ACS Healthcare in a few minutes; but if you could succinctly tell the

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Administrative Law Judges how that 2008 audit spurred you to want to undertake additional investigation regarding the providers? A. So, knowing the background, knowing that in

2008 we had already identified that there was a gap in the prior authorization process, we then looked at the utilization rates, so the actual dollars that were flowing out of the Medicaid program Title XIX, into orthodontia and we saw that each year from 2008 beyond -- actually from, you know, whenever the program was initiated, even years before that, there had been a steady and increasingly obvious increase in the dollars that were expended through -- through Title XIX for orthodontic benefits. When we looked at the top utilizers, the providers who were -- who were obtaining the most prior authorizations, we saw that there were enormous amounts of money that were going to a relatively small number of providers and that led us to conclude that we might have a serious and ongoing problem with orthodontic expenditures and the prior authorization process. Q. Mr. Stick, when you did this pull of the --

did you say it was the top 55? A. Q. It ended up being 56, I think. Was Antoine Dental Center within -- somewhere

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between that range of 1 to 56 of the top billing Medicaid orthodontia providers? A. Yes. In fact, I think Antoine Dental was in

the top 25. Q. Now, was your decision to pursue an

investigation or undertake an investigation of Antoine Dental Center prompted in any way by the WFAA news story that was aired in Dallas, Texas, sometime in the fall of 2011? A. Not entirely but in part. I think the WFAA

stories certainly heightened -- maybe underscored the importance of these investigations. When we looked at

the top 56 providers, you know, we -- as I indicated we became aware that there was ongoing -- potentially an ongoing problem and I think the WFAA stories maybe heightened the urgency of conducting the investigations. Q. Mr. Stick, just because your office, OIG,

launches an investigation of the Medicaid provider, that in and of itself does not conclude a presumption that the provider is guilty of any kind of Medicaid violation, is it? A. Q. No. You don't assume just because you've started

an investigation that the provider has committed

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program violations and you don't proceed directly to collection efforts or efforts to assess an administrative penalty or efforts to exclude somebody from the program? A. You don't do that, do you? And we can't do that. There's

No, we don't.

no process to do that.

In order to take any action

against a provider, we have to conduct an investigation and we have to have evidence of wrongdoing, at least some level of evidence of wrongdoing, overpayments. Q. I would -- excuse me. I would -- I would

presume that an investigation of that nature would require you to -- you to review the providers' medical records, their patients files; is that true? A. Q. Yes. And I would also assume that a provider such

as Antoine Dental would have literally thousands of patient files that you might review; is that true? A. Yes. The -- this investigation was a --

covered a three-year period and I think during that three-year period there were something close to 6,550 separate patient files or separate patients who were treated. Q. Your -- now referring specifically to Antoine

Dental Center? A. Right and this particular discrete

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investigation. Q. A. Which covered which years? This covered 2011, 2010 and 2009. I think it

was initiated at the end of 2009. as far as 2009. Q. All right, sir. JUDGE EGAN:

I mean, it went back

How many -- you said you What was that number

looked at a number of files. again? THE WITNESS:

In that period Antoine

Dental had served or received prior authorizations for 6,550, give or take. or 30. JUDGE SEITZMAN: These are Medicaid I mean, it's, you know, within 25

patients you're talking about? THE WITNESS: Q. (BY MR. WINTER) Yes. So -- so to be clear, then,

if I understand your testimony, Mr. Stick, during the relevant time period of your investigation, according to your investigation, the Antoine Dental had received prior authorization to -- to service orthodontia patients in over 6,500 individual cases? A. Q. That's correct. Okay. But you didn't look at all 6,500 of

those patients files, did you?

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A. Q.

No. Was there a process to get to some subset of

those files upon which you could reasonably rely? A. Sure. We use a method of statistical sampling

in order to obtain a reasonable number of files that we can -- that we can review. In -- in cases of providers

who use -- use the services or provide services frequently, we often end up with cases of thousands of patients and it's just not practical for us to go pull 5,000 or 10,000 cases and look at each one. First, it

would be fantastically expensive; and then, secondly, it'd take forever. investigation. So, what we do is we use a method of statistical sampling that's been approved by the state auditor and the general accounting office and we're able to pull a much, much smaller, much more manageable subset of data while still maintaining a high level of precision in the sampling process in getting a statistically valid random sample. Q. A. Q. A. Q. Mr. Stick, you're not an auditor, are you? No. You're not a statistician, are you? No. Do you have any understanding of how that We'd never be able to complete the

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sampling is pulled? A. Yeah. I have a general understanding of the

statistical method that we use. Q. Could you be describe that for the

Administrative Law Judges? A. Sure. The sampling process begins by The

identifying four characteristics or attributes. first one is a historical error rate.

We have divided

the providers in the state into discrete subsets or specialty areas. So, orthodontists get one area and Dentists would get another. The

one historical error rate.

Pediatricians would get another and so on.

second -- and we have a -- a historical error rate that we've been able to identify based on our experience in those provider times. So, the first thing we do is we identify the historical error rate that we would expect to find. The second thing that we do is we identify the population size. That would be the total number of

patients or total number of files that the provider has -- has seen and created. JUDGE EGAN: clarify. The third major --

Let me just make sure to

When you're talking about patients we're only

going to be talking about Medicaid patients. THE WITNESS: That's correct, ma'am.

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JUDGE EGAN: A.

All right.

Go ahead. The American

The third area is precision.

Institute of CPA's uses a 15 percent precision rate. And what that means is that they want results. They

consider it acceptable for results to be within 15 percent of the true error rate. We use a 10 percent precision rate. our -- our results are more stringent. difficult to meet our results. So,

It's normally

We expect our results

to be within 10 percent of the true error rate every time. And then the fourth main characteristic is the confidence level, and that's simply the percentage of time you would expect if you did multiple statistical samplings that you would come up with the same answer. And we use a 95 percent competence level.

Again, these are drawn from GAO- and SAO-approved formulas. Once we've established these characteristics, we plug those into a formula from the state auditor's office. And what that does is it So, remembering that you If you sample

generates a number for us.

can sample all, we'll say, 6500 cases.

all 6500 -- that is say you pull 6500 cases and you look at each one -- you get a very accurate result. It

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takes you a long time and it's a lot of work but you get a very accurate result. There are five statistical sampling stages that you can use called stages one through five. one is the largest of those sampling stages. Stage

Stage

five would be the smallest of those sampling stages. So, what you look for is a -- at the end of stage one, after you've completed your review of the files drawn in stage one -- and I'll explain how we get those files. At the end of stage one you will then test your

results to see if they meet the targeted precision, that 95 percent precision. If they do, then

statistically -- the science statistic says you can stop doing your investigation at that point because there's a 95 percent probability that you've hit the target. If they don't hit the statistical precision, You do -- you go farther

then you go on to stage two.

down the line and do more reviews and you get more accurate results and so on. So, theoretically you could get to the end of stage five, not have met your statistical precision level, throw the whole thing out and have to start all over again. In this case we sampled through stage two. We always pull through stage two, which was 85 cases.

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We were able to stop after stage one, which was 63 cases. After the computer and the formula tell us how

many cases we need to -- we need to pull, we then need to figure out which cases to pull. So, knowing that we

need to pull 85 cases -- if you think about all of Dr. Nazari's cases laid out on the line, just a straight line from here to wherever they stop, you have to get a seed value and that seed value is really nothing more than where you start on that line, so, your first case. a seed value. The computer just randomly generates You

But you're not done at that point.

can't just pick the next 85 cases.

The computer has to

tell you which case to pull and it does that -- that randomly. But the computer doesn't know what characteristics you're looking for. So, if you think

about it in context of political polling, political pollsters they want a sample size of 600 to a thousand people but they want so many men and so many women. They want so many Democrats, so many Republicans, so many independents, so many of this minority group, this minority group and so on. And they've broken it down

and what they want is a statistically valid sampling of the population because then you can extrapolate to the greater population.

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What we do is we say we know that we want a statistically valid sampling of the types of services that the provider provides. So, for example, if you

have a two-dollar procedure and, you know, you do it wrong every single time and all I ever do is sample two-dollar procedures, well, then I've identified a very small dollar amount of -- in terms of procedures but a very high error rate. And if I go and try to

extrapolate that very small dollar amount and very high error rate to the greater population of all the claims that you've ever submitted, I'm being unfair because there may be claims that you've submitted at the 10,000-dollar level that will be considered an error and that would be a hundred percent error rate. So, what we do is we say, "Okay. We're

looking for claims hypothetically in the zero to 50 range, the 51 to 100-dollar range and so on" and we break it down into -- into various strata, characteristics. And we identify how often the biller So, we'll take

or the provider bills in those areas.

a, you know, 10 percent sampling from the zero to 50-dollar range, maybe a 12 percent from the, you know, 51 to hundred-dollar range and so on. And the cases

that we pull from the seed value when the computer generates, you know, the numbers telling us pull case

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Number 35, 58, 21 and so on.

Once we've pulled those

cases, we have to, then, test them to make sure they meet the characteristics and that they are, in fact, a statistically valid random sample. They're a random

sample but they may not be statistically valid. They have to meet those -- those different billing strata, different billing levels. Once we have a statistically valid random sampling -- sometimes we get it the first time. Sometimes it's two times. Sometimes it's ten times.

Once we have that, then we're able to go out into the field and actually pull those files. of patient control numbers, PCNs. So, we get a list

Each one of those And we would go

PCNs is associated with an individual.

to the provider and then say, "Here's a list of the 85 PCNs we need." We would physically collect copies of

those files and any appropriate documentation, so, molds, X rays, anything like that and then bring those back for review. Q. (BY MR. WINTER) Thank you, Mr. Stick.

That's what -- I believe you've just described is generally the process for polling a statistically valid random sample that is employed by the OIG; is that correct? A. Yes.

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Q.

Is that, in fact, the process you employed in

the process of Antoine Dental Center? A. Q. Yes. In fact, did you undertake your investigation

of Antoine Dental in the same manner that you undertake all investigations? A. Q. Yes. So, as I understand it you didn't -JUDGE SEITZMAN: interrupt a minute -MR. WINTER: Yes, sir. -- before we move on to Mr. Winter, can I

JUDGE SEITZMAN: another point?

Mr. Stick, just so I'm clear, so you're pulling -- you're testing the sampling size and the specifics of the sample file against a payment and other data that you already have in your system. You're not acquiring -- going out and acquiring that from a provider. system? THE WITNESS: That's correct, sir. Then you collect the It's from data that you have in your

JUDGE SEITZMAN:

physical file from and physical elements from the provider after you're satisfied that you have the correct sampling, size and parameters?

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THE WITNESS:

Yes, sir. Okay. Thank you.

JUDGE SEITZMAN: Q. (BY MR. WINTER)

So, if I understand your

testimony correctly, then, Mr. Stick, you-all and your investigators didn't just drive down to Houston, march into Antoine Dental Center headquarters and pull the 63 worse cases you could find? A. do that. Q. After you pull your statistically valid, No. We don't -- we don't have any method to

random sample, what is the next step in the process of the investigation? A. At that point the investigation takes two The physical files will go to a -- an The expert consultant

different paths.

expert consultant for review.

reviews the files and identifies any -- any program violations that are stamps -- stamped, reviews the file or -- or the files for medical necessity and identifies any problems that may exist. At the same time that the expert consultant is reviewing the files, field investigators are physically out in the field interviewing witnesses, doing the things that you would expect as a normal part of the investigative process. So, in the case of

Antoine Dental field investigators interviewed office

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staff, office assistants.

They interviewed both Dr.

Nazari and Dr. Kanaan, office managers, supervisors; but at the same time they also interviewed patients and patients' guardians or parents. The things that

they're looking for are any indications that something is going wrong. Are patients complaining that they're Are patients saying they Are patients saying that So, the

not getting the services?

never went to Antoine Dental?

they didn't get certain appliances?

investigators will show them an appliance and say, "Did anybody ever put this in your mouth?" They'll interview the office staff because we found that office staff are often a great -- a great resource for information about what's really going on. So, you know, we have providers who frequently are very honest with us and just tell us, "This is what we do." And what they're doing is a violation of Medicaid policy. We also run into situations where we have field investigators out there and they don't find anything abhorrent. So, the field investigator's The expert

conducting the field investigation.

consultant is conducting the expert review and then when both are completed they're melded back together into a final case report.

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Q.

And is that, in fact, the process you

undertook in the case of Antoine Dental Center? A. Q. Yes. This two tiered process with the field

investigators constructing the interviews, reviewing records -- and did you also have an expert review the 63 patient files? A. Yes. In the case of Antoine Dental, we

actually had three experts review the files. Q. And was there any discrepancy between the

findings of those three experts? A. There were minor fluctuations on the HLD All

scorings but the result were -- was consistent.

three of the experts who reviewed the case found that the HLD scores were inflated. Q. What was the end result -- after the parallel

tracks came back together and you were prepared to, I guess, issue your, at least preliminary findings of your investigation, what conclusions did you make at that time? A. At the conclusion of the investigative stage,

I made a determination that this case was appropriate for a payment hold based upon a credible allegation of fraud; and I referred the case to our sanctions division for imposition of a -- of a payment hold.

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Q.

Before we get into what is a criminal

allegation of fraud and what was the basis for the payment hold, can you summarize for the Administrative Law Judges the findings of the investigation? A. Sure. We found a number of program violations. The first I think, obviously, would be the inflated HLD scores. We found that -- we had conducted other

investigations at that point and had seen a pattern developing that HLD scores across the board were artificially inflated, that our expert witnesses were coming back saying that HLD scores were in the three, four, five, twelve range where the provider was identifying 28, 30, 35, and beyond and there was so much discrepancy between them that it just wasn't attributable to a difference of opinion. And it was so

frequent that we couldn't attribute it to a difference of opinion and we saw that again in this case. But beyond that, you know, we also -- we also considered different factors that were present in the Antoine case. For example, we had parents who had

complained that their child didn't get the services that Antoine Dental had billed for. We had parents --

at least one parent who said her child never went to Antoine Dental.

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MR. WATKINS: of this as hearsay.

Your Honor, we object to all

What -- what these people told

some investigator who then told him, I think I can make a triple hearsay argument. JUDGE EGAN: Sustained.

It is -- Judge Seitzman's reminded me that his concern is that we need to know what the basis of their decision was. We understand what hearsay is and

we will not be considering it for the truth of the matter but for why they were doing what they were doing. So, we will allow it in for that limited

purpose; but it is not coming in for the truth of the matter. MR. WATKINS: Well, I'm perfectly happy if And I don't

we're allowing in assuming it's not true.

think they can form basis of opinion based on untrue information. Therefore, they're, obviously, offering They're telling you-all what these

it for the truth.

guys told them was the truth because that's their justification for the State taking their action. is not an expert witness who says, "This is how I formed my opinion." This is the State of Texas saying, This

"We put out this hold because what these guys told us was true." JUDGE EGAN: And I understand that -- that

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is your position and that's your objection.

Right now

we're trying to figure out why they did what they did and we understand that the information that he is providing to us is hearsay and it will not be considered by the Judges as truthful, unless they present evidence supporting those truth -- those allegations. pleadings. And some of these were not raised in So, it would be an objection on that level. But right now we're going to let him explain why he took the action he did. MR. WINTER: proceed? JUDGE EGAN: Q. (BY MR. WINTER) Yes, you may. Mr. Stick, I believe you were Thank you, Judge. May I

in the process of summarizing the findings of your investigation. A. Please proceed.

We also had a number of complaints from

parents who were -- who were concerned that Antoine Dental was charging them for Medicaid services. so, if their child broke a certain number of brackets -- I think sometimes three, sometimes ten, they would be charged $25 for a replacement bracket. They would also complain that they were being charged for office visits if their child missed a certain number of office visits. All of that would be a And

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violation of -JUDGE EGAN: Hold on just a second. Mr. Stick, there was some

JUDGE SEITZMAN:

preliminary matters that have gone on before you -well, before you took the stand. to stay within those parameters. for the interruption. But I believe that's the allegation that fell outside of the complaint. JUDGE EGAN: a second. Okay. We're just wanting to make sure the And right now -- hold on just So, we're just trying So, just pardon us

record's clear that while we're allowing you to tell us why you made the decision you made that this was not a -- a lot of this was not pled and it is -- has already been ruled that it cannot be brought in in this case. MR. WATKINS: Well, your Honor, we would

object to all of it because if it's outside the complaint and they're going to tell us these are the credible allegations of fraud, then they need to have pled the credible allegations of fraud. And so,

they're going to say, "We've got some secret stuff in our mind, which we didn't plead and didn't give you notice of and now we're going to come into court and

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tell you what that was in order to justify." So, we would object to any testimony from this witness which is outside of the petition to justify any credible allegations of fraud. I don't

care why they may have thought they had the right to do it; but if they don't plead it, they don't get to bring it before this panel. JUDGE EGAN: MR. WINTER: Mr. Winter? Well, Judge, respectfully we We did cite to specific

feel like we did plead it.

Administrative Code provisions which apply to all the of the program violations that Mr. Stick is providing. And, so, we think it is in the pleading. We understand We're not

the Judges' ruling on the hearsay objection. offering it for the truth of the matter.

So, it's not We

hearsay; and we think it comes in under 801(d).

would point out, though, that if it is hearsay, it's still admissible under 803(8) as a record of an investigation undertaken pursuant to lawful authority. So, it is a record as Mr. Stick's oral testimony of the record of his investigation. way we think this -- this does come in. JUDGE SEITZMAN: break. Let's take a two-minute Either

Let's go off the record. (Off the record)

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JUDGE EGAN: Judges.

We had a discussion among the

At this time we're going to allow this witness

to tell us what the basis -- why he made the decision to place a payment hold. We have limited any further

evidence and will limit any further evidence to what was pled, which is only in our opinion -- and we've already had this discussion -- that the Medicaid providers under the HLD scores than what was actually pled in its complaint. It -- the other factors -- if

there's five factors and only one was going to be -was pled and allowed in this case, that's the only one we're going to consider. So, at this point we'll allow him to finish that but there will be no further evidence on -on the issues that were not pled. MR. WINTER: JUDGE EGAN: Thank you, Judge. And I understand. So, your

objection's overruled for the record. Mr. Winter. MR. WINTER: Q. (BY MR. WINTER)

And go ahead,

Thank you, Judge. Mr. Stick, I believe you were

in the process of summarizing the findings of your investigation and the bases for your next steps. you have any more to add to that? A. Yes. Do

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Field investigators also spoke with both of the providers and their office staff. Dr. Kanaan

reported that he often saw 110 or more patients a day. His office manager reported that they scheduled -- the most common appointment was a -- an adjustment, which they scheduled for the least amount of time, which was 10 minutes. Dr. Kanaan also indicated that he would

sometimes use a Boley gauge to measure distance and sometimes he would eyeball it. Q. A. Is that a problem? Well, it's a problem because the HLD score And All of these things --

sheets require more precision than eyeballing it. all of those things were -- were concerning.

All of

those program violations -- there were other program violations. photographs. For example, there were missing There were missing X rays. There were

missing treatment plans.

All of those things were

concerning as program violations; but most concerning to me was -- was the pattern that I saw developing, which lent itself, in my judgment, to a conclusion that there was a credible allegation of fraud. And let me -- let me just be clear. we evaluate fraud, we don't necessarily -JUDGE EGAN: questions. He needs to be asking you When

You're not allowed to just go into a

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narrative here. Q. (BY MR. WINTER) Mr. Stick, let me -- let me First of all, when you -- we're

ask you this question.

going to go into the credible allegation of fraud area in a moment. violations. Would you, please, explain to the Administrative Law Judges what is a program violation? A. Yes. When you enroll in the Medicaid program, First let me ask you about the program

you sign an agreement that you agree to comply with and comport with various statutes, federal and state, various regulations, federal and state, as well as the policies and procedure -- and procedures set forth in the policy and procedures manual of the Texas Medicaid program; and in addition to that, you agree to comply and comport with all the standards of practice in your profession. So, the dentists in the -- in the

Medicaid program are required not only to comply with all of the Medicaid rules and regulations but also their -- their own regulating bodies. And violating

any of those regulations is also a violation of Medicaid policy or Medicaid rules. MR. WATKINS: Your Honor, for the record All of that, which is

we object for the same reasons.

not pled, cannot be used as credible allegations of

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fraud in this case because its outside the pleadings and I know you're going to -JUDGE EGAN: I think that was a generic I don't

question as to what is a program violation. think he said that Antoine -MR. WATKINS:

Well, generic program

violations are not part of the pleading in this case. And so, I -- I don't want them to be able to go outside of what they actually did or what they actually are gonna try to prove to this group and say, "We know a whole bunch of other stuff we're not bringing before the panel that justifies what we did." JUDGE EGAN: The question was a -- was a

generic question and I'm going to allow it. MR. WINTER: proceed? JUDGE EGAN: Q. (BY MR. WINTER) Yes. Mr. Stick, I assume that Thank you, Judge. May I

program violations can fall on a continuum from the very innocuous to some that may be of greater concern, perhaps very important violations; is that fair? A. Q. That's correct, yes. Did you hear testimony earlier this week -- I

believe somebody had a question of whether a misspelling of a name Randall with two Ls when the true

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name was only spelled with one L can arise to the level of being a program violation. A. that. Yes. I think Dr. Seitzman asked Dr. Altenhoff

And the answer is that misidentifying a patient

could be and probably would be a program violation but, you know, there are -- there are program violations and then there are program violations. Not every program

violation rises to the level of needing some action. And, in fact, if that's what was happening, unless there were a -- an associated problem, in other words, if we couldn't identify the patient, which is a big problem -- but if we can identify the patient and it's a misspelling of a name, that might even not register as a program violation. If it did register as a program violation, the only response from my division would be probably a letter saying, "You know, make sure that you identify patients correctly. his name misspelled." If it were a consistent pattern of misidentifying patients, we have a -- we have a continuum of responses that we can employ to educate and regulate provider behavior. So, the next step We notice that this patient had

would probably be to send the provider for some sort of an education, you know, make them participate in a

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class or send them to their regulating board or body or something like that. But what we would try to do is,

you know, particularly for less important, less significant violations, educate the provider on how to comply with Medicaid policy. Q. So, it's fair to say that not all program

violations are created equal? A. Q. That is absolutely the case. And in your job in evaluating and determining

which program violations merit further action or perhaps more strident action on your part, you have to exercise your judgment and deliberation and review the totality of the situation; is that fair? A. Yes, it is the totality of the circumstances

that -- that we consider when making a determination what response, if any, is appropriate in a particular situation. Q. So, in the case of Antoine Dental Center,

after the two tracks came together, that is the field investigation and the expert investigation came together, and you were able to make some determinations as to what the situation was, what was your next move? A. After reviewing both the expert opinions on

HLD scoring and the facts and circumstances as developed by the field investigators, I became troubled

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by what I saw was a pattern that had developed. the pattern I discovered was -JUDGE EGAN: your next move? A. His question was:

And

What was

My next move was to consider the totality of

the circumstances and evaluate whether or not a payment hold was appropriate and I determined that it was. Q. (BY MR. WINTER) And in your judgment did you

then refer the case to another division within OIG to implement the payment hold? A. Q. Yes. Is OIG mandated by applicable law to impose a

payment hold under certain circumstances? A. Yes. The Affordable Care Act requires,

effective March of 2011 that any OIG that identifies a credible allegation of fraud impose a mandatory payment hold on that provider. Q. What, please, tell us, is a credible

allegation of fraud? A. Credible allegation of fraud has been defined

as a -- an allegation and an allegation can be through data mining, through a complaint, hotline, letter, any -- any way you can get a complaint or an allegation, which has been verified with indicia of reliability.

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Q.

And do you have an understanding, sir, of

what, quote, indicia of reliability, close quote means? A. I do. The U.S. Supreme Court has defined

indicia of reliability as statements made that have -I'm drawing a blank. Statements made with

particularized guarantees of reliability. Q. Statements made with particularized guarantees

of reliability; is that correct? A. Q. Yes. And in your judgment did the evidence that you

have before you meet that standard? A. Q. Yes. And consequently you felt you were obligated

by law to seek imposition of a payment hold; is that true? A. Q. That is true. Now, was there any basis other than that or

authority other than that federal and state statute that also authorized OIG to impose a penalty in this case? A. Right. So, your question actually asks two

questions.

One is that there's federal requirements

that OIG impose a payment hold in cases where there's a credible allegation of fraud. Beyond that, state law

also requires in cases where there is a verified

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allegation of fraud that OIG impose a payment hold. But separate from -- from fraud and maybe -- maybe here is where I would want to clarify that fraud is defined in the Texas Medicaid Fraud Prevention Act and it is defined as knowing actions. It can also be actions taken with conscious disregard to the truth or falsity of a claim asserted or reckless indifference to the truth or falsity of a claim asserted. standard. It's also important to know that when we evaluate these using the Texas Medicaid Fraud Prevention Act, that Act does not require the specific intent to commit an act. So, it doesn't require So, we've actually got a recklessness

anything more than reckless conduct, not reckless conduct with the intent to do anything else. But

separate from a credible allegation of fraud, OIG is also authorized to impose discretionary payment holds for program violations; and here, again, this is where we get back to all program violations are not necessarily created equal. Misspelling a name would not in and of itself result in a payment hold. Committing an action

that caused harm to a patient, might or a series or a pattern of program violations depending on the

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seriousness and the extent and the effect of those might cause a payment hold. But it really just depends

on the facts and the circumstances. Q. And in this particular case, again,

considering the totality of the circumstances, was it in your judgment that a payment hold was authorized and indeed required under, A, the mandatory standard and, B, appropriate under the permissible standard? A. Yes. The -- the problem that we were seeing with the HLD score sheets -JUDGE EGAN: question. You already answered his

Wait until he asks the next question. THE WITNESS: Okay. Sir, what was the problem you

Q.

(BY MR. WINTER)

were seeing with the HLD score sheets? A. The inflated HLD score sheets caused concern

because they established a pattern of at a minimum recklessness and quite possibly intentional conduct as well and that would justify -- not only justify but mandated a payment hold under the Affordable Care Act. We don't have any discretion in that regard whether or not to impose a payment hold. The Affordable Care Act

says the payment hold must go on and the default is hundred percent.

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Once you've made that decision, there are several good cause exceptions for reducing or eliminating the payment hold but the payment hold must go. That's -- that's step one. But separate and apart

from that, those HLD score sheets also constituted program violations. Even if they weren't fraud, they

were still program violations; and I still had, in my judgment at that time, prima facia evidence of program violations that would also require or permit OIG to impose a payment hold. Q. Excuse me. The nature -- I'm sorry.

But following on that point, just

to be clear, the problems that you identified with the HLD score sheets, even if they did not rise to the level of being a credible allegation of fraud justifying a mandatory program hold -- payment hold, they still sufficed to be grounds for imposition of the discretionary payment hold in your judgment; is that true? MR. WATKINS: JUDGE EGAN: lead. But I'm going to overrule the objection just so we can get through this information. A. Q. Yes, I still thought -(BY MR. WINTER) You can answer. Objection. Leading.

Please be careful not to

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A.

I still thought there was prima facia evidence

of program violations. Q. Mr. Stick, is a payment hold a sanction, a

punitive sanction imposed by the OIG? A. No. A payment hold is a remedial action that

OIG takes. Q. Can you, please, explain your answer for the Why is it remedial and not

Administrative Law Judges? punitive? A.

Although I recognize that a provider who is

not getting regular checks from the Title XIX program is harmed, the effect, the intent of the payment hold is not to punish the provider. The effect and the

intent is to hold the situation in stasis until OIG can determine what is happening and if there is a problem how to correct it. So, in a situation where a credible

allegation of fraud does, in fact, exist, OIG needs to prevent the outflow of money to that provider. If we

fail to do that, the federal government will claw back the money that we have paid to the provider from the moment that we discovered the credible allegation of fraud. So, if -- if we fail in our obligation under the Affordable Care Act, the State of Texas and taxpayers are on the hook for general revenue dollars

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to pay the federal government back all of the money that the federal government expended. Q. So, in essence, imposition of a payment hold

is -- is preserving the status quo? A. That's exactly right. It just affords us the

opportunity not to lose any money, to keep everything in stasis until we've been able to identify exactly what's going on and what, if any, remedial action needs -- other remedial action needs to happen. Q. And did I understand you to testify a few

moments ago that under the mandatory provision under the Affordable Care Act and the Code of Federal Regulations, if there's a credible allegation of fraud, the payment hold must be 100 percent unless some other exception applies? MR. WATKINS: A. Yes. JUDGE EGAN: Q. (BY MR. WINTER) Please -What is the standard if a Objection. Leading.

payment hold is mandated under applicable federal law? A. It's -- it's a payment hold. It's a hundred

percent payment hold.

Keeping in mind that if we do

anything other than a payment -- a hundred percent payment hold the State of Texas is on the hook, unless -- on the hook for that -- that money, unless

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there's a good cause exception that we can identify and explain to the federal government when the federal government comes along and says, "We've identified fraud here as you did. Q. We want the money back."

And in this case did you find any -- any basis

to impose less than a one hundred percent payment hold? A. Q. No. You've heard -- you've been in the courtroom

the last several days, haven't you? A. Q. Yes. You've heard and you're aware of the fact that

your counsel have notified the Administrative Law Judges and the other side that OIG intends to proceed fewer counts of violations than are alleged in the pleadings? A. Q. I heard that. Does the fact that the -- that your attorneys

are going to prove up fewer counts, fewer instances of violation than are set forth in pleadings justify a lesser than 100 percent reduction in the percentage of payment hold? MR. WATKINS: JUDGE EGAN: Objection. Sustained. Leading.

You want to rephrase your question? Q. (BY MR. WINTER) Is there any basis, sir, to

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reduce the percentage of the payment hold based on pursuing fewer counts? A. Q. A. No. Why not? So, when -- when OIG conducted the

investigation, we investigated those first 63 cases through stage one. We arrived at a 95 percent or So, we were certain that our We

better precision rate.

results could be repeated regularly and accurately. identified 100 percent error rate. That is to say

there were errors in every single one of the cases. Every single one of the cases had HLD scores that were inflated and every one of those cases also had other errors associated, program violation errors. So, when

we made the determination to impose a payment hold, we were basing that decision on -- on the 63 cases that we knew were enstamped at the time that we had investigated. If -- you know, in my experience, there were never 145 anythings. There were only -- there

were only 63 cases with the associated errors that go with those cases. But it is important also to know

that the -- the error rate, the 100 percent error rate is not associated with the 100 percent payment hold. In other words, if there's a 90 percent error rate,

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it's not necessarily a concomitant 90 percent payment hold. The decision that we have to make is fraud, not fraud. Using that TMFPA, the Texas Medicaid If fraud exists then We must do

Fraud Prevention Act standard.

the default is a 100 percent payment hold.

that or we are at risk for claw back to the federal government for all of the money that we've spent after the point where we identified it. We are always open to good cause exceptions. We were not able to find any in this case.

In the situation of a program violation, here again the default is a 100 percent payment hold. Because for a

program violation, although the federal government might not necessarily claw back that money -- although they could -- we would have a better position to argue from because it's a program violation and not necessarily fraud. But fundamentally OIG is charged

with protecting the integrity and the dollars associated with all Title XIX expenditures. So, if we know that a provider is committing multiple program violations that rise to the level of a program -- of a payment hold, we're obligated to at least start at the 100 percent level and then work down from there. And here, again, there

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were no -- there were no justifications that we could find that would reduce or eliminate the payment hold in this case. Q. A payment hold is not the only administrative

remedy available to OIG, is it? MR. WATKINS: JUDGE EGAN: Q. (BY MR. WINTER) Objection. Overruled. Are there any other Leading, Judge.

administrative remedies available to the OIG besides the payment hold? A. There are other administrative actions that For example, we can -- as I've already We can simply

OIG can take.

indicated, we can educate providers.

close a case. If -- if all we saw was one case where there was one L instead of two Ls in a name, we wouldn't likely do anything with that case. We'd

simply close it and we also have the authority to issue administrative sanctions. If a provider has committed

a program violation or a series of program violations, we have the authority to sanction that provider up to $10,000 per incident, up to $15,000 per incident if patient harm is associated with -- with the wrongfulness of the action. We can also initiate recoupment actions. We can recoup up to 100 percent of the dollars

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associated with the payment errors. recoup 100 percent.

We don't have to

We can recoup a smaller amount.

So, for example, if a provider provided services valued at $50 and that's all that was medically necessary and that's what we find but the provider actually received payment for $100, we wouldn't recoup the hundred dollars. We'd recoup the delta. We'd recoup that $50.

In certain circumstances in cases of egregious behavior, we can also exclude the provider from the Texas Medicaid program entirely; and then, of course, in all cases of fraud, we can refer the case for criminal prosecution. Q. By the way, have you made a referral in this

case to anybody outside of OIG? A. Yes. We did. We did refer this case for

criminal prosecution. Q. A. Q. To whom? The Texas Medicaid Fraud Control Unit. And speaking of those remedies, are we here

today in this proceeding regarding any of these remedies that are available to you beyond a payment hold? A. Q. No. What exactly, as you understand it, is the

purpose of this proceeding?

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A.

To determine whether or not the current

payment hold should be maintained. Q. What are the bases that could support, if

found by the ALJs, the maintenance of the payment hold? MR. WATKINS: conclusion for the panel. Q. (BY MR. WINTER) JUDGE EGAN: hear you. MR. WATKINS: That calls for a legal As you understand, sir -Sorry. What is -- I couldn't Objection. Calls for a

conclusion to be decided by the panel. JUDGE EGAN: I agree.

Rephrase your question and try to avoid asking him for a legal conclusion. MR. WINTER: Q. (BY MR. WINTER) Yes, Judge. Mr. Stick, as you understand

it, what could be the bases for maintaining this payment hold, if these bases are found by the ALJ? MR. WATKINS: conclusion of the panel. thinks about it. Objection. That calls for a

It's irrelevant what he

There's not anything he's going to

testify to in the next few seconds that won't appear in a brief that they submit to the panel as to what the justification is. I object to being -- his opinion

being irrelevant and being for the panel to decide.

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JUDGE EGAN: objection. Q. (BY MR. WINTER)

We're going to sustain the

Let me try this question,

Mr. Stick.

As you understand it, what do you need to

show in order for this payment hold to be maintained? MR. WATKINS: Objection. Same objection.

Judge, the issue every time you get a lawyer on the stand in this situation is are we going to put him under oath and let him testify to stuff that we're gonna then write in the pleadings or, I mean, the briefs and give them to you. They can put all the

lawyers on they want to to tell you what the justification is. It doesn't matter what this

particular one says. JUDGE EGAN: MR. WINTER: JUDGE EGAN: Mr. Winter -Yes, Judge. -- what purpose are you I mean, it sounds like

offering this testimony for?

it's to educate us as to what the law is; and if that's the case, it's an inappropriate question. MR. WINTER: JUDGE EGAN: Q. (BY MR. WINTER) I'll move on, Judge. Okay. Thank you.

Let's shift gears, Mr. Stick.

I'd like to talk for a few minutes about the Texas Medicaid contract for claims administration. You've

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been here the last several days. bit of testimony about TMHP. A. Q. Yes.

You've heard quite a

Would that be true?

Would you please explain to the Administrative

Law Judges -- I think you started to talk about this a little while ago. Let's go back to it now.

Please explain to the ALJs what is TMHP? A. TMHP is the Texas Medicaid Healthcare It is a partnership of several different

Partnership.

corporations that have come together to act as the third-party claims administrator for the State of Texas. The primary contractor, the prime contractor is

ACS Healthcare now owned by Xerox. ACS is responsible for receiving, processing, reviewing prior authorizations and paying claims as appropriate on behalf of the Texas Medicaid program. Q. Mr. Stick, to be clear is ACS Healthcare a

state agency? A. Q. No, it is not. Is ACS Healthcare a division of the Texas

Health & Human Services Division? A. Q. No. It's a private company.

As part of its obligation under contract to

review, process and pay claims, does ACS have any other

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functions with respect to prior authorization, for example? A. Yes, the ACS contract with the State of Texas

with the Health & Human Services Commission requires that certain discrete areas of treatment, for example, orthodontia require prior authorization before treatment can be provided. Q. What is the purpose, as you understand it, of

this prior authorization process under Texas Medicaid policy? MR. WATKINS: JUDGE EGAN: A. Objection. Overruled. Irrelevant.

What -- the Texas Medicaid orthodontia benefit It

is, I think, under -- under any analysis, meager. provides Medicaid benefits for orthodontia in very limited, very discrete circumstances.

The legislature

and the Health & Human Services Commission determine where the Texas Medicaid dollars are to be spent. And

for orthodontia the benefit only extends to severe and handicapping malocclusion, severely handicapping malocclusions. MR. WATKINS: JUDGE EGAN: and answer the question. narrative. Objection. Nonresponsive.

Just listen to the question You tend to go into a

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A.

So -MR. WINTER: Sorry. Are you telling

him -- did you cut him off, Judge? JUDGE EGAN: He's going pretty far afield You need to do -- we need

and going into a narrative.

to stick to question and answer. Q. (BY MR. WINTER) Mr. Stick, what is the

standard for eligibility for the Medicaid benefit for orthodontia? A. In Texas it is a severe handicapping

malocclusion. Q. And let me ask you this question, Mr. Stick:

Is there actually a contract in place -A. Q. A. Q. Yes. -- between HHSC and ACS Healthcare? Yes. This standard, that's -- is that part of Texas

Medicaid policy to only pay for severe handicapping malocclusion? A. Yes. MR. WATKINS: JUDGE EGAN: Objection. Leading.

Be cautious not to lead.

But I'm gonna let him get through some of this so we can get to the points. Go ahead.

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Q.

(BY MR. WINTER)

Who is authorized under

applicable law to make Texas Medicaid policy? A. it. Well, obviously the legislature can always do

Otherwise, for Medicaid determinations, it is the

single state agency responsible for Title XIX expenditures, which is the Texas Health & Human Services Commission. Q. Are state contractors authorized to make

Medicaid policy? A. Q. policy? A. Q. No. Is ACS Healthcare authorized to make up its Never. Is ACS Healthcare authorized to make Medicaid

own interpretation as to what is a severe handicapping malocclusion? A. No. MR. WATKINS: Judge, let the record

reflect that's four leading questions that I didn't object. JUDGE EGAN: Q. (BY MR. WINTER) Thank you. Who is the Texas state

official, Mr. Stick, who is the most knowledgable about Texas Medicaid dental policy? A. For the period of this investigation, it would

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be the Texas dental director -- Texas Medicaid dental director or the person serving as sort of the default Texas Medicaid dental director, which is Dr. Linda Altenhoff. Q. To your knowledge, sir, has Texas Medicaid

policy ever contemplated a different definition for dentists and orthodontists who apply for Medicaid benefits for certain conditions that's distinct from the definitions that those conditions have in the generally accepted private practice of dentistry? A. No. MR. WATKINS: Q. (BY MR. WINTER) MR. WATKINS: Objection. To your knowledge -Objection. Leading,

multifarious, confusing and calls for -JUDGE EGAN: Go ahead. finish. MR. WATKINS: JUDGE EGAN: MR. WATKINS: Q. (BY MR. WINTER) Right. Okay. Go ahead. Overruled. We understood.

And it calls for -- you didn't

I ran out of steam, Judge. To your knowledge, sir, does

a cleft palate mean something different for the purpose of seeking prior authorization for a Medicaid benefit than it does in the generally accepted private practice

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of dentistry? A. No. MR. WATKINS: voir dire on that issue? to answer that question. May I take this witness on I object he's not qualified What is generally in the

medical profession for what a cleft palate is is not within his expertise and he's comparing what the Medicaid statute says compared to what a dentist would testify. JUDGE EGAN: I understand. If you want to

take this witness on voir dire to establish qualifications to answer that -VOIR DIRE EXAMINATION BY MR. WATKINS: Q. A. Q. A. Q. A. Q. Are you a dentist, sir? No. Have you ever gone to dental school? No. Have you ever treated a cleft palate? No. Do you have any idea what dentists generally

think a cleft palate is? A. Q. A. What dentists think -Yeah. -- a cleft palate is?

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Q.

Yeah.

I mean, do you go to dental meetings

and you hear them talk about it? A. No. MR. WATKINS: We move to strike any answer

he might give that relates to cleft palates. MR. WINTER: Judge, this testimony is not It's to

elicited to determine what a cleft palate is.

determine whether there's a distinction of the meaning of the cleft palate. It's a Medicaid policy question.

Whether there's a different meaning for Medicaid policy than there is generally accepted in the practice of dentistry. MR. WATKINS: That's a question to compare

A to B and he's not qualified as to what B is. JUDGE SEITZMAN: bible for this? Why is the manual the

I mean, if -- we all know what a A provider has a generally But provider for Medicaid purposes

provider is, right? accepted meaning.

for providing dental/orthodontic is gonna have a specific meaning and that's going to be set out somewhere, either in the statute or a rule or the manual. So, I understand you're asking him and I understand it's a mixed medical-legal question. guess my question for you is: But I

If -- if -- when we've

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spent several days going through the manual.

I can't

say I can recite it by heart but I can pick out a bunch of words pretty quickly and find out where they are. Why is it -- I guess why do we need testimony beyond the professional testimony of a dentist and an orthodontist as to what definitions are or are not in the manual? I understand your questions to him

regarding the intent of the policy but in terms of whatever the legal definitions of medical terms or dental terms -JUDGE EGAN: Or the dental. -- or the orthodontic

JUDGE SEITZMAN:

terms, why is the manual or contract or provider agreement or the regulation or the statute the place we're going to look? MR. WINTER: I think it goes to a -- what

I think is an assumption here that's been propagated throughout the hearing that we're going to demonstrate is a false proposition and that is that Texas Medicaid had somehow promulgated special definitions for certain things that were distinct and different than those generally accepted in the practice of dentistry and -JUDGE SEITZMAN: I'm going to cut you off

because we had -- Dr. Altenhoff has been asked about this. Dr. Tadlock has been asked about this. Dr.

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Orr's testified about this. about this.

Dr. Kanaan's been asked

And, I mean, they're all professionals

within the profession dealing with the definitions. You've asked Mr. Stick -- and I don't know that it was objected to. I don't think it was -- about

policies and he's identified, you know, the fact that he doesn't believe that the policies have changed either from the time before he became associated and affiliated with the Office of Inspector General or since the time he's been affiliated. the question's about policy. But I don't -- and I'm not meaning to be rude, Mr. Stick, and maybe I'll get you off the stand a half hour earlier. I don't know. And I understand

But I don't understand why -- and I understand why we ask lawyers lots of things about what doctors do because we know better. But I'm not sure

why we need Mr. Stick's testimony and where it's going to be useful to us in terms of opinion about what's stated in the manual or not stated in the manual with respect to specific medical, dental, orthodontia terms. That's my question. MR. WINTER: And I think what we were

getting at is whether those terms are distinct and have special Medicaid meanings that are different from

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what's -- as he understands Medicaid policy do -- does the manual ascribe under the -- under these certain specific dental terms a distinct, separate special Medicaid definition? That's really the question. The manual is It's intended for And

I think that's a policy question. intended for -- not for lay people.

dental and orthodontic professionals. So, the question really is: Are they

supposed to throw out all their education, training, experience when they put on their Medicaid provider hat and disregard everything they've learned out there in the real world and just ascribe -- it kind of goes -Judge, it goes quite frankly back to your bumper sticker question. There -- you asked a question day If there was

one let me put this on a bumper sticker.

a definition of ectopic occlusion that we put on one bumper sticker that TMHP or Texas Medicaid adopted that was much, much broader and expansive than the generally accepted definition that Dr. Tadlock testified to that was accepted in the profession, if we've got these two definitions -- that was the two question. predicated with an if. And I think we're entitled to explore that and address whether that proposition is, indeed, a valid proposition. I think we're entitled to put on It was

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evidence that it's not, that there aren't two separate definitions and I think we can do this with this gentleman who has testified that he has familiarized himself as part of his job to know Texas Medicaid policy. And, you know, it's not -- we're not asking We're just asking him We're not --

him what is a cleft palate?

whether there's two different things. JUDGE SEITZMAN:

But -- but you're asking

him to make a determination as to a specific dental, medical, orthodontial term. We've already had a bunch

of testimony and -- about whether certain terms are defined, limited or not defined but instructions only in the manual. And I guess I --

And, again, no disrespect intended. I don't know how Mr. Stick's testimony can help us deal with that issue about whether or not a term that's defined, undefined or defined with instructions or simply with instructions in the manual -- I mean, you haven't asked Mr. Stick but I imagine that he would agree with everybody else that's testified that the manual is the go-to document and if it's in the manual, you follow it. MR. WINTER: Judge. Let me answer that question,

And maybe I can stop asking about specific

terms and move on but I think -- you know, certainly

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the other side is entitled to put on their evidence. If they want to contend that there are two different definitions, they're gonna argue that. We're going to

argue that there aren't; and I think we're entitled to -- to rebut that, what we consider to be a, falsity. And so, I think we're entitled to put on the evidence rebutting that falsity. And that's what this line of But certainly I We

questioning is designed to address. take your point, Judge.

We can go to the manual.

cannot talk about, you know, these specific terms. JUDGE EGAN: general question. MR. WINTER: Thank you, Judge. And Then, go ahead and ask your

Can we pull up Exhibit R16, please? let's go to Page 42. MS. STACEY MANELA: MR. WINTER: 42, sir?

Yes, please,42.

DIRECT EXAMINATION (continued) BY MR. WINTER: Q. And, Mr. Stick, first of all, do you know what

you're looking at? A. I think this is the -- part of the

introduction to the TMPPM. Q. A. The manual, right? The manual.

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Q. days. A. Q.

Heard quite a bit about it in the last several Big ole, thick book, right? Yes. I think in the colloquy we just had with the

Administrative Law Judges, there was a proposition set forth that the manual is the bible. place for all things Medicaid. It's the go-to

And I paraphrased.

But you heard the discussion we just had, correct? A. Q. Yes. Is the manual the go-to oracle, the bible for

all things Medicaid for providers? A. Yes, to the extent that you're asking about

what a provider can do and can't do or how to bill or -- or what to bill. Yes. To the extent that you're

asking anything beyond that, I think the providers also bring in their own background, education and experience. Q. Should a Medicaid provider disregard their

education, training, life experience, continuing education, knowledge that they gain in the real word in the private practice of dentistries when they come to submit a Medicaid orthodontic claim? A. No, you can't. The book doesn't -- it's not

a -- a book of what is or -- or anything like that.

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It's a how-to.

It's a how to work in the Medicaid

program, how to bill, that kind of a thing. So, if you were a dentist and you read the orthodontic section, you wouldn't know how to practice orthodontics. It doesn't -- it's not an educational

document that actually teaches you substantively what to do in the practice. Q. Is there any applicable law on whether

Medicaid patients can be treated differently, subjected to some different standard than the standards of care that are out there in the nonMedicaid world? A. Well, I think that there are two different One is, you know, equal

areas you'd look at.

protection laws; but then even more important for the purposes of this discussion is that the provider enrollment agreement states explicitly that the provider agrees that he or she will treat Medicaid and private-pay patients identically using the same standards of care. Q. Mr. Stick, let me direct your attention to the

paragraph that begins about two-thirds of the page down beginning with "in addition." Can you read that that's

been highlighted there, ending with the citation to the administrative code? A. In addition providers are responsible for the

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delivery of healthcare items and services to Medicaid clients in full accordance with all applicable licensure and certification requirements and in full accordance with all applicable licensure and certification requirements and in full accordance with accepted medical community standards and standards that govern occupations. Such standards include, without

limitations, those limited to medical record and claims filing practices, documentation requirements, and record maintenance. The requirement to follow all such standards in Medicaid is incorporated by reference to the program's requirements in 1 Texas Administrative Code Section 371.1617(a)(6)(a). Q. Mr. Stick, are all of those community

standards and record maintenance requirements and documentation requirements spelled out verbatim in the manual? A. Q. Yes. Each of those community standards pertaining

to the general practice of dentistry is set forth in the manual? A. Q. Oh, no. Each of the standards is not, no.

So, again, a provider has to bring with him or

her to the Medicaid arena the knowledge, training,

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skills, experience and standards they have learned in their practice of their profession outside of Medicaid? MR. WATKINS: Your Honor, I'm using the

rule of only objecting to leading with questions over 30 seconds long. So, I object to that one. Did you answer? Not yet. It's leading. I'm going to

JUDGE EGAN: THE WITNESS: JUDGE EGAN: allow him to answer. MR. WATKINS:

Judge, I understand.

And I

will make leading objections understanding we need to get this over. as I can. JUDGE EGAN: A. Thank you. And I'll try to be as quick and as few

The provider manual is big but it's not It is designed

infinite and it is a provider manual. for providers of services.

So, it subsumes the belief

that the provider of these Medicaid services brings with him or her certain basic knowledge and understanding in the field that that individual is providing services in. So, a durable medical equipment

provider wouldn't have the knowledge that a dentist does. And a dentist wouldn't have the knowledge that a

pediatrician does. But the -- but the manual doesn't say, "Do

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this this way." professions.

It doesn't say that in any of the

It says -- it's a how-to manual and you

are expected as a provider to bring with you the education and experience that -- that allows you to perform services that the manual directs you to bill for. Q. (BY MR. WINTER) Is the Medicaid provider

procedure manual intended for lay people and nonproviders? A. Q. A. No. Are providers typically doctors and dentists? Yeah. I mean, there -- there are about 80,000 I would say the majority So, physicians,

enrolled providers in Texas. of them are advanced degree.

optometrists, dentists, orthodontists. MR. WINTER: and -- R15. Q. (BY MR. WINTER) All right. Mr. Stick, you Please go to Exhibit R15

recognize the page that we're looking at? A. Q. A. Yes. What is it? Just identify it for record. It is the

Well, it's Section 19.2.

provider -- it's the initial paragraphs on provider enrollment. Q. And if you would, please, go down left-hand

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column to the bottom where it begins with "important" and if you could read that language into the record for us, continue onto the top of the next column. A. It says -- it says important: All providers

are required to read and to comply with Section 1, provider enrollment and responsibilities. In addition

to required compliance with all requirements specific to that -- to Texas Medicaid, it is a violation of Texas Medicaid rules when a provider fails to provide healthcare services or items to Medicaid clients in accordance with accepted medical community standards and standards that govern occupations, as explained in 1 Texas Administrative Code Section 371.1617(a)(6)(a). Q. That's fine. Thank you. Would you, please, go to page

MR. WINTER: 341 of the same exhibit? MR. WATKINS: MR. WINTER: MR. WATKINS: JUDGE EGAN:

What page is that? 341. Thank you, sir. And what year is this? I

know it's a manual but which year is it for? MS. SILHAN: JUDGE EGAN: 2009. 2009 because we've got a

couple of the hard copies. Q. (BY MR. WINTER) Mr. Stick, please identify

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the document you're looking at now. A. This is Section 19.21 of the TMPPM. It's

entitled How to Score the Handicapping Labio-lingual Deviation (HLD) Index. Q. Again, this is an exhibit you've seen many

times here in the last week, correct? A. Q. A. I have. Are these definitions? These are instructions. MR. WINTER: please. Q. (BY MR. WINTER) Does that include the entry If you'll scroll down,

under ectopic eruption? A. Right. So, yes, it does. If you go back you

see that the entire page is entitled "how to score." So, it's the instruction manual for the next page and the next page is the actual HLD score sheet. MR. WINTER: next page, please. Q. (BY MR. WINTER) All right, sir. Now, Let's -- let's go see the

Mr. Stick, do you see anywhere on the left page under the 19.21 how to score the handicapping labio-lingual deviation HLD index any language that says these are definitions? A. No. There are no definitions on that page.

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Q.

All right.

Thank you, Mr. Stick. I want to go back now

Let's shift gears.

to ACS health care we were talking about just a few moments ago. You were describing for the Administrative Law Judges ACS Healthcare's responsibilities under the contract a few moments ago, correct? A. Q. Yes. And, again, those responsibilities include the

authority to implement and execute Medicaid policy but not to make it. A. Q. Is that fair?

That's correct. Now, based on your personal knowledge, sir,

that you gained in your capacity as the deputy for enforcement at OIG, do you have an opinion on how TMHP was discharging its contractual obligations? A. Q. A. Yes. What is that opinion? They weren't. MR. WATKINS: Objection. Irrelevant. We

don't care whether the State did a good or a bad job. They approved all of these applications and gave these people money based on that approval. a good job or not is irrelevant. Whether TMHP did

The question is

whether these people committed fraud.

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JUDGE EGAN:

I'm going to allow you to go

some leeway because the 2008 audit -- OIG audit has been discussed throughout this hearing. you some latitude to ask those questions. MR. WINTER: Q. (BY MR. WINTER) Thank you, Judge. Again my question, sir, is So, I'll give

can you, please, explain the basis for your opinion that ACS and TMHP was not discharging its contractual obligations? A. Yes. In 2008 the OIG audit of ACS

demonstrated that ACS was not reviewing the background information submitted with the HLD score sheets. They

were simply looking at the score sheets; and if the score sheets amounted to a 26 or better, they would approve them. They were approving somewhere in the --

they were automatically approving about 90 percent of the -- of the claims that were submitted with 10 percent being referred to the dental director because they scored below a 26. When we began looking at orthodontic claims in 2011, the first thing I looked at was the utilization of orthodontic benefits in the -- in the Texas Medicaid program; and I saw that from 2003 or 2002 on those -- those dollars had continued to increase, even after the 2008 audit, where we

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identified this problem to ACS.

So, that led me to

conclude that we probably needed to take another look at ACS and see whether or not they had -- they were continuing not to look behind the score sheets and were instead simply relying on what the score sheet said. In our investigation at that point, which consisted of interviews with ACS employees, including ACS senior management, as well as reviewing depositions from various proceedings, including an orthodontic case, indicated that ACS had continued not to look behind the HLD score sheets, instead, relying on the professional qualifications, the thoroughness and the honesty of the providers. sheet said 26, it was a 26. In other words, if the score There was nobody -- there

was nobody there to second guess that or to review that. ACS was employing low-level employees, clerks, to process these where the contract required a dental professional to evaluate the -- the HLD score sheets. That never happened. So, nobody was looking

at the pictures.

Nobody was looking at the X rays. They

Nobody was looking at the cephalometric diagrams. weren't looking at anything. at the HLD score sheet.

They were simply looking

I don't even think we were

able to establish that they were adding up the numbers

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to see if they added up to a 26.

If the number said

26, it got shuffled aside and it was approved. Q. Mr. Stick -MR. WATKINS: Objection. Nonresponsive,

based on hearsay, not admissible for any purpose in this -- in this hearing. JUDGE EGAN: Over- -- overruled but I will The

instruct you to please just answer his question. question was fairly specific. THE WITNESS: JUDGE EGAN: Yes, ma'am. And you tend to go into

explaining everything you know about the subject. So, just listen to his question and answer that. Q. (BY MR. WINTER) Mr. Stick, what evidence have

you found in the course of your investigation, what evidence that ACS Healthcare was doing any kind of qualitative analysis to determine whether orthodontia claims just -- were justified under the severe handicapping malocclusion standard? A. Q. A. Q. The prior authorizations were justified? Yes, sir. I found no evidence that they were doing that. Mr. Stick, what evidence did you find in your

investigation into this matter that ACS Healthcare was

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applying any definition of ectopic eruption to its evaluation of the orthodontic prior authorization requests? MR. WATKINS: based on hearsay. JUDGE EGAN: Sustained. Objection. Irrelevant,

If they didn't do a review of the pre-authorization, then they weren't reviewing anything in that category because that's what it was intended for. MR. WINTER: the -JUDGE EGAN: So, at this point it's So, let's move on. I think -- I think that's

redundant more than anything else. MR. WATKINS: wrong objection. Q. (BY MR. WINTER)

I hate it when I make the

Mr. Stick, did anything that

ACS Healthcare was doing or not doing in the process of reviewing prior authorization requests excuse Antoine Dental Center or Dr. Nazari from his obligation to comply with all Medicaid rules and regulations? A. Q. No. Just because I leave my front door unlocked or

my front door wide open doesn't give you an excuse or license to come and steal my TV, does it?

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MR. WATKINS: JUDGE EGAN:

Objection. Overruled.

Irrelevant. You can answer

the question, but I'm not sure it makes much -A. And, no. Well, I think Dr. Orr said that yesterday. Under -- under the Medicaid program -JUDGE EGAN: Q. (BY MR. WINTER) You've answered his question. I'm sorry. I don't -- what

were you about to say about -JUDGE EGAN: He said no -- his answer to

your question whether or not it gave you permission to come through your door and steal your TV, his answer was no. Q. (BY MR. WINTER) And my following question is:

What were you about to say under the Medicaid program? I would like to know the answer to that question, sir. A. Under the Medicaid program the providers have

an obligation to exercise professional judgment and discretion in accordance with existing professional standards and submit truthful prior authorization requests. So, if there's nobody on the other end to

review it, that doesn't mean that you can just send in anything you want. You still have as a provider an

obligation to send in truthful information to the program for the program's integrity. Otherwise, you're

getting money that you weren't supposed to get.

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Q.

I think a few moments ago you were -- you made

a reference to certain trends that you have observed as part of your investigations into orthodontia billing; is that true? A. Q. Yes. What trends have you observed with respect to

dollars spent on orthodontia over the last ten years or so? A. A couple of salient points, the first one was

that there has been a steady and marked increase in expended dollars from about 2002 to 2011 amounting to about 2,480 percent increase. The second trend was

that there was an increase in providers who enrolled stating -- and who had submitted at least at one point an orthodontic claim. In the same period of time that

expenditures increased 2480 percent, the number of providers increased 338 percent. Q. Based upon those statistics that you observed

on the increase in the number of enrolled providers compared with the increase in the dollars spent, married up with the other things that you have learned in your investigation, have you been able to draw any general conclusions about the job that ACS Healthcare was doing administering the contract? MR. WATKINS: Objection. Irrelevant.

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JUDGE EGAN:

I believe it's already been

established that he doesn't believe they were doing their job. Q. I mean, we need to move on. Based upon your judgment that

(BY MR. WINTER)

ACS Healthcare was not doing -- living up to its contractual obligations and performing adequate prior authorization reviews, did you observe any other trends in the behavior of some providers? A. We noticed that -MR. WATKINS: Irrelevant. Objection, Judge.

We're talking about a provider here.

We're not talking about some providers. JUDGE EGAN: Q. (BY MR. WINTER) Sustained. Sir, do you know what the

approval rate for orthodontia prior approvals was under ACS Healthcare's watch? A. Q. Yes. What was that figure? MR. WATKINS: Objection. Irrelevant.

We need to hold this to this provider. JUDGE EGAN: question. Go ahead. A. Q. Approximately 95 percent. (BY MR. WINTER) Now, was there a change in I'm going to allow this

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the way Texas Medicaid administered the prior authorization orthodontia program in March of 2012? A. Q. A. Yes, there was. What was that change? In March of 2012 dental -- dental benefits So, there

were transferred to a managed care system.

were three dental maintenance organizations, DMOs, in the state who were in charge of the vast majority of mental dental expenditures -Q. A. Let me ask you --- including orthodontia and prior

authorizations. Q. DMOs. Excuse me. Let me ask you about those three

Do you know what their approval rates are since

they've taken over this program in March of '12? A. There's now two. One dropped out in December

of last year; but in the first year that there were three of them, they ranged from 3 percent to 9 percent. Q. Let me go back to that 10-year time period

between 2003 and 2013, just prior to the program going from fee-for-service to managed care. So, excluding

the March, '12, forward but the time period preceding that, did the reimbursement rate increase at the same time there was an increase in provider enrollment and increase in expenditures?

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A.

So, are you asking if the -- if the rate the

State paid for orthodontic services -Q. A. Yes, sir. -- increased? It did not. Q. Apologize. Unclear question. Just to be

precise here my question was was Texas Medicaid paying more on a case-by-case basis for services in 2012 and '11 than it was in 2002 or '3? A. No. The amount of money that a provider would

receive for certain orthodontic service remained static during that period of time. Q. Yet the number of providers enrolling in Texas

Medicaid increased significantly, correct? A. Q. It increased, yeah, 338 percent. And the -- the rate in dollars were spent

increased even more significantly? A. Q. Right, over -- over almost 2500 percent. Now, since Medicaid has gone from a

fee-for-service orthodontia to managed care since March of 2012, has there been any change at -- in the rate at which providers are reimbursed for orthodontia services? A. Q. I don't believe so, no. Did Texas Medicaid policy change since March

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of 2012 regarding what is and what is not eligible for orthodontia? A. Q. No. Is the standard still the same for Procedure

Code D8080? A. Q. A. The standard for approving -Yes, sir. -- orthodontic treatment? The standard has

remained the same. Q. In addition to your observations about the

program itself, have you made any observations in the course of your investigations with respect to the behavior of Antoine Dental Center and Dr. Nazari? A. Q. A. Yes. What are those observations? We looked at Dr. Nazari's absolute number of

prior authorizations for the 12-month period immediately before OIG went and collected orthodontic records from him and we determined that he was receiving -- submitting and receiving prior authorizations for about 106 patients per month on average. For the one-year period subsequent to OIG's

record collection, he submitted an average of -- and received prior authorization for an average of 10 per month up until March and we -- we collected records in

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mid-November.

So, up until March of 2012, he received

prior authorizations at the rate of about 10 per month. After March of 2012 when the managed care companies took over, he received no prior authorizations. Q. To put this all in perspective, from the

year -- or the part of this discussion perspective, for the year prior to November of '11 -- that is from November of '10 to November of '11 -- Dr. Nazari was enrolling on average how many new Medicaid patients each month? A. Right at about 106. I think it was 1271 or 72

for that year. Q. And for the time period November of '11 until

March of '12 for that four months, what was Dr. Nazari's average Medicaid patient enrollment rate? A. Per month it was right at about 10. I think

he enrolled 40. Q. And what has been his Medicaid enrollment

frequency since March of 2012? A. He's not received any new prior

authorizations. Q. He's not submitted any new prior Is that -- is that what you meant to

authorizations. say or received? A.

I'm not able to conclusively determine whether

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he has submitted any.

I know that he has not received

any prior authorizations. Q. Is it -- has your office taken any action that

would preclude Dr. Nazari from receiving a prior authorization for a request that he submits? A. No. I checked this morning and he is still an

enrolled provider in the Texas Medicaid program. Q. of 2012? A. That's when the managed care companies took And what significant event occurred in March

over dental prior authorizations. Q. A. Q. And went from fee-for-service to managed care? To managed care, correct. Mr. Stick, shortly before you took the stand,

you were here for -- were you not, for Dr. Kanaan's testimony? A. Q. For part of it, yes. Did you hear a question that he was asked

regarding the number of patients that he treated in the time period that's at issue here? A. Q. A. Q. Yes. What was the number of patients that he gave? I think he estimated it was about 2,000. Does that comport with the information -Have you been able to

well, let me ask you this:

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determine based upon OIG records the number of patients that Dr. Kanaan -- Medicaid patients Dr. Kanaan saw? A. Yes. Dr. Kanaan's answer was 2,000 relative

to the patients that both he and Dr. Nazari treated and the actual number is right at about 6,550. Q. Is it your testimony that Mr. -- Dr. Kanaan

underestimated his response to that question by about 4,000 patients? A. Q. Better than 4,000 patients. What is the total dollar value, to your

knowledge, of Antoine Dental Center's Medicaid billings for the time period that's in question? A. Slightly over $8.1 million and this is a

three-year investigation. Q. As part of your investigation into this

matter, the matters that we're here on these several days, have you had occasion to determine how many prior authorization requests Dr. Orr processed when he was the claims agent for National Heritage Insurance Corporation back in 2000? MR. WATKINS: JUDGE EGAN: of that question? MR. WINTER: I think it goes to the Objection. Relevance.

What -- what is the relevance

credibility of some of the -- Dr. Orr's testimony

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earlier that he gave this week about how long he spent on processing and evaluating prior authorization requests and he testified that he spent a certain amount of time for each one. will elicit will -JUDGE EGAN: I'll allow a little -- a The testimony that we

little leeway but I don't want to spend a lot of time on this. MR. WINTER: questions, Judge. Q. Just have a few short

Thank you. In 2000 how many prior

(BY MR. WINTER)

authorization requests did Dr. Orr process? A. I looked it up and I made a note but I need to

refer to the note to refresh my recollection. MR. WINTER: May the witness refer to the

note to refresh his recollection, Judge? MR. WATKINS: being relevant. JUDGE EGAN: Overruled. I'm still objecting as to

And I'll allow him to refresh his recollection if he needs to. MR. WATKINS: JUDGE EGAN: I would like to look at it. If you're going to refresh

your recollection, he gets to look at it. So, go ahead. You can approach the

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witness.

Take a minute. MR. WATKINS: I'm probably going to want

to take him on voir dire. JUDGE EGAN: down. VOIR DIRE EXAMINATION BY MR. WATKINS: Q. A. Q. Now, do you remember these numbers now? I haven't even looked at them. Okay. I want you to look at them. Depends on what he wrote

You through looking? A. Q. A. I am. Do you remember these numbers now? I think so. MR. WATKINS: your questions. DIRECT EXAMINATION (continued) BY MR. WINTER: Q. Mr. Stick, the question is in the year 2000 Okay. Go ahead and ask him

approximately how many prior -A. Q. 7,894. In the year 2001 how many prior approval

requests did Dr. Orr process? A. Q. 9,607. And in the year 2002?

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A. Q.

12,992. Mr. Stick, you have been here, as the OIG's

client representative, here these last three days, sat through virtually all of this proceeding, haven't you? A. Q. Yes, sir. You've heard quite a bit of testimony about

what ectopic eruption's are, right? A. Q. Yes. I think you've heard some testimony about

subjectivity and professional judgment, true? A. Q. Yes. You've heard about both policy and purposes

behind Texas Medicaid orthodontia policy, right? A. Q. Yes. You've, in fact, testified on that yourself,

haven't you? A. Q. I have. What I'd like you to do is put everything that

we've talked about the last several things in perspective for the Administrative Law Judges if you will. What's the harm to Texas Medicaid when a

provider bills for and is paid for services that are not eligible? MR. WATKINS: question is: Objection. Irrelevant. The

What is the harm, I suppose, by this

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provider? JUDGE EGAN: question. I believe it's a generic

It's not directed towards this provider.

I'm going to allow the question. MR. WATKINS: JUDGE EGAN: provider? I've not -MR. WINTER: Judge. JUDGE EGAN: Q. (BY MR. WINTER) JUDGE EGAN: A. Go ahead. You may answer. Objection overruled. It was a general question, Thank you. Was it directed to this

The Medicaid program is funded with, roughly,

a 60 percent/40 percent federal/state split. JUDGE EGAN: THE WITNESS: A. It's 60 percent federal? Yes, ma'am.

There is a limited amount of state dollars The legislature

that can go into the Medicaid program.

and the Health & Human Services Commission determines who qualifies and what benefits they get. decision making process. It's a difficult process because you're constantly weighing this grievous condition against this grievous condition and you're trying to make the most out of the money you've got available. And there That's the

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are certain -- there's certain expectations that policy makers rely upon that are provided by experts at the Health & Human Services Commission at the legislative budget board that govern that decision-making process. When a provider takes money out of the system at a greater rate, at an unauthorized level, what that does is it denies services to the neediest of Texans. So that if the money is -- is allocated for --

or appropriate -- is spent on orthodontic benefits inappropriately, that means that somewhere down the line somebody's getting squeezed out and that's wrong and it's unfair and it hurts the neediest of Texans. That's the harm to the program. Q. (BY MR. WINTER) MR. WINTER: please. JUDGE EGAN: We'll go off the record so Thank you, Mr. Stick. If I can have one moment,

our reporter can stand and stretch her legs. (Off the record) JUDGE EGAN: All right. We've taken a

short break so everybody can kind of stretch their legs. again. If I can get counsel to all take their seat It is now 4:20 p.m. on May 30th, 2013. Mr. Winter, did you have any further questions of Mr. Stick?

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MR. WINTER: pass. JUDGE EGAN: MR. WINTER: JUDGE EGAN: with cross.

No, thank you, Judge.

We

You pass the witness? Yes. All right. You may begin

CROSS-EXAMINATION BY MR. WATKINS: Q. Mr. Stick, the policy manual doesn't intend to

teach people how to practice dentistry, does it? A. Q. No, sir. Part of the requirements for getting money

from the State is to comply with dental standards and applicable professional standards, correct? A. Q. Yes. Okay. And -- but the policy is about how you It's not how you practice dentistry?

get the money. A. Q.

That's correct. Okay. So, there could be things that are

perfectly required among dentists in order to do for a patient which they can't get any money for because it's not required -- it's not defined in the policy manual? A. I think my answer to that is yes, but I'm not Can you give me an example? Let's talk about braces.

sure I understand exactly. Q. Well, all right.

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There's lots of times they're going to put braces on the kid that they're not going to get the money for and the kid needs the braces but it's doesn't fit the definition in the policy manual. A. Yeah. A provider could put braces on somebody

and not get reimbursed. Q. Well, the mother of that child is going to

want braces on that child whether he gets money back from the State or not, aren't they? MR. WINTER: speculation. JUDGE EGAN: assumption but -MR. TONY CANALES: JUDGE SEITZMAN: With a straight face? There must be a quota of I think it's a safe Objection. Calls for

objections that we're going through pretty rapidly at this point. MR. TONY CANALES: JUDGE SEITZMAN: timeouts. Q. No shame at all. I guess they're like

You can't take them to the next period. And there are definitions in

(BY MR. WATKINS)

the policy manual for things provided for purposes of things getting money that may not be the definition of what good medical treatment would be? A. I'm not sure I agree with that. I'd have to

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see what you're talking about. Q. Well, let's talk about how many teeth you can The

count when you're doing one of these measurements.

policy manual says you can only count a certain number of teeth. The dentist is probably going to look at all

the teeth, isn't he? A. Right. That's not a definition. That's an

instruction. Q. A. Q. A. Are there no definitions in the policy manual? Not in this part of the policy manual, no. Haven't you testified differently in the past? Well, the only time I testified relating to

orthodontia was when Mr. Canales took my deposition and Mr. Canales used the -- used the phrase definition relating to ectopic eruption. So, we -- we discussed

that in terms of a definition but I didn't testify it was a definition. Q. A. Q. Okay. Okay. Let's go to your deposition. Do you have a Well, let me remind you.

copy of it with you? A. Q. No. You remember giving your deposition in this

case, don't you? MR. WINTER: Excuse me. Do you have a

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copy for me, Counsel? MR. WATKINS: No, I don't.

I don't mind if you want to go look on with him. MR. TONY CANALES: MR. WATKINS: we have one. Q. (BY MR. WATKINS) I direct your attention to He can have it. There

Is there another one?

Page 73 starting at line 22 or 20 -- I'm sorry -- line 20. The question: Maybe I don't think I'm being

agitating. sir.

Let me ask you a couple of more questions,

The manual, the TMHP manual, do you believe that

the manual is a comprehensive manual, covers everything that a doctor needs to know regarding the grading or the grading or deciding whether somebody's tooth is ectopic or not? And your answer was: a definition of ectopic eruption. So, you testified under oath that there's a definition in this manual of ectopic eruption, right? A. Q. today? A. Q. No, it's not. You said there was no definition in the I did. And that's not what you testified to here I think it provides

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manual? A. Q. In this part of the manual, right. So, well, which -- which time were you telling Then or now? I don't

the truth, sir? A.

I don't think it's an either/or.

think that the -- I don't think that the definition that we've seen here today and in previous days is a -is a definition of ectopic eruption. This conversation

was relating to Mr. Canales' line of questioning about ectopic eruption policy changes; and in my answer here -- although it's not clear from this portion of it -- I was referring to the conversation that Mr. Canales and I had had. that time. Q. And so, you don't think it's an either/or? And I think you were there at

You can testify to one thing in the deposition and then you can testify to something different here? what you're telling us, sir? A. No, sir. I -- I think that that's kind of a What I'm Is that

mischaracterization of what I was saying.

telling you is that my answer here on page 74 is in relation to Mr. Canales' line of questioning regarding policy changes. Q. All right. Now, you have testified in the

past that whether or not there's been a change to the

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definition of ectopic erection -- eruption comes down to what the word "change" means, haven't you? A. Q. for you? I don't recall. Okay. I might have.

Well, do you want me to play it back

I mean, you did say in your deposition it

comes down to what the definition of the word change is. MR. WINTER: I'd ask that Counsel direct

the witness to the place in the deposition he's referring to without just ambushing him with abstract notions. JUDGE EGAN: question. Well, he's asking him the

He's laying the predicate to go ahead and

refer him -Q. (BY MR. WATKINS) Did you or did you not

testify that it comes down to -JUDGE EGAN: MR. WINTER: Overruled. Asked and answered. He's

already answered the question. testimony. Q. (BY MR. WATKINS)

He doesn't recall that

Turn to page 19 of your Question: The

deposition.

Let's look at line 5.

definition got changed, sir.

You know it got changed.

Are you telling me you don't know about the definitional change?

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Well, I think it really ultimately devolves into how you define, you know, the word change. A. Right. I understand what you're asking.

Again, Mr. Canales was asking -- he was basing his question on the assumption -Q. My question is: That's what you testified to

under oath? A. Q. It's right there. Okay. Now, do you still believe that this

issue of what is or is not the definition in the -- and we know you called it a definition in the manual. Whether or not that definition got changed by your department? A. Sir, I can't answer your question. MR. WINTER: Excuse me. Objection. unclear. JUDGE EGAN: A. answer. Q. (BY MR. WATKINS) Why not? There's a nice Overruled. Vague. The question's Objection. Vague.

I can't answer your question with a yes-or-no

open-floated question to you. yes or no?

Why can't you answer it

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A.

Because in order to explain or in order for

you to understand why I said what I said, you have to understand what I was understanding Mr. Canales to ask me. So, you can force me into a yes or no but it

wouldn't be an accurate answer. Q. Uh-huh. Well, let's -- I put up there Page You see those two. You recognize

65, P65 and P81.

those two definitions? MR. WINTER: evidence. JUDGE EGAN: those two definitions -MR. WINTER: JUDGE EGAN: point overruled. Go ahead and answer, if you recognize them. A. Q. If you don't, state you don't. I recognize those two paragraphs. (BY MR. WATKINS) Different from your Well, I think he's --- definitions. So, at this He asked if he recognized Objection. Misstates the

deposition you're saying those are not definitions? You tell me that neither one of those are a definition of what an ectopic eruption is for purposes of the manual? A. Sir, what I -- what I'm prepared to do to get

you so that you can ask me questions, I'll agree right

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now to call these definitions if that helps; but in my deposition I was -- I was utilizing Mr. Canales' description of -- of that paragraph. them definitions. I'm not calling

Mr. Canales is calling them

definitions and I'm using his language. Q. So, when you say "ectopic eruption," up at the

top, the first one, an unusual pattern of eruption, you don't think that's a definition of what ectopic eruption is? A. I think that if you view that singularly

without the context of where it is that you might be led to that conclusion but that paragraph is in Section 19.21, which starts out how to score, the instructions on how to score the HLD index. Q. Well, whether you want to call it how to score You

or a definition, it's followed by some language. see where it says "such as."

You see those two words

right after "unusual pattern of eruption"? A. Q. A. Q. Yes. You were in the legislature, right? Yes, sir. Do you remember -- and this goes back a long

way -- the Latin expression expressio unius est exclusio alterius? law school? Do you remember what that means in

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A. Q.

I don't think I ever learned that. Apparently I didn't either because I had to

look it up. MR. WINTER: JUDGE EGAN: ahead. Q. Overruled. (BY MR. WATKINS) It means one thing excludes Objection. Relevancy.

This part I can't -- go

another thing so that if you put something up and you say, "Rings are made out of gold and silver," that list limits what rings are made out of. that? You understand

That a list of specific things following a

general term limits the general term to the list that follows it. A. Q. right? A. Q. Yes. Isn't that a representation by you that you Do you understand that?

No, sir. Okay. Well, you ran for the legislature,

knew how to draft legislation? A. No. I think the legislature's full of people

who don't know how to draft legislation. Q. of them? A. sir. I was going to be in the legislature, yes, And you were -- and you were going to be one

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Q.

Do you -- did you think you knew how to draft

legislation? A. You know -MR. WINTER: A. Q. Objection. Relevancy.

-- I don't think it ever occurred to me. (BY MR. WATKINS) JUDGE EGAN: Now -Hold on. Now, you need to But

let me rule on the objections before you move on. he's answered it.

So, it's going to be mootable but

please wait until -MR. WINTER: Please give me a moment to Thank you.

insert an objection before you answer. Q. (BY MR. WATKINS)

Well, now, drafting

contracts, do you -- have you ever practiced law privately? A. Q. A. Q. Yes. And have you drafted some contracts? Not that I can think of. Well, do you know the people who draft

contracts, people who draft statutes, people who draft regulations have some phrases that they insert in clauses to eliminate that old expressio unius est exclusio alterius? Do you know -- do you know any of

those phrases which we stick in there? A. Well, I don't think just because it's in Latin

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means -- means anything.

I mean, as I -- as I read

this, I don't think that there's anything that's limiting there. For example, you know, all rings are made of gold and silver or rings -- I think you said rings are made of gold and silver is -- is not limiting. Rings are made of gold and silver and titanium and any number of other things. If you said all rings are made

of gold and silver, that would be limiting. Q. Well, this says an unusual pattern of Now, sometimes, let me suggest to you that,

eruption.

sir, that in drafting contracts statutes or regulation will include a phrase like including but not limited to. You understand what that phrase does to the list

of things that follow after that, right? A. Q. Sure. We put in, for example, and that doesn't limit

the main -- the general terms of the things that follow, right? And isn't it true that we put in such

as, which doesn't limit the general by those things that follow the such as? A. That's true, isn't it, sir?

You're saying that you say a thing, all rings

such as those made of gold and silver? Q. Yeah. You say, rings can be made of such That doesn't limit

things as, such as gold and silver.

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it.

You can only limit rings to gold and silver. A. That does not mean you can limit it to gold

and silver. Q. You testified under oath that you believed

that unusual pattern of eruption in this case is limited to those things that follow the such as. A. Q. I'm not testifying to that. All right. So, if, then, we put something in

that to change what you can put after the such as, that would be a change to that definition, wouldn't it? A. for -Q. A. In spite of your testimony? -- for -- for the sake of your question, we Such as high labial cuspids or -- I Well, I -- I don't agree it's a definition but

can use that word.

mean, it would be a -- a physical change but I don't know that it would necessarily be a substantive change. I don't know that it would change the meaning. Q. Right. Look at the second enlargement.

Ectopic eruption, an unusual pattern of eruption such as high labial cuspids or teeth that have erupted in a position that is grossly out of long axis of an alveolar ridge. Then -- now, that's identical to

what's up at the top, right? A. It is.

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Q.

Then it follows with ectopic eruption does not

include teeth that are rotated or teeth that are leaning or slanted especially when enamel-gingival junction is within the long axis of the alveolar ridge. That changes what the top meaning says, doesn't it? A. It eliminates teeth that are rotated, leaning

or slanted, yes. Q. Okay. Now, how many of the things that you

looked at that you think were wrongfully submitted, did not have or are -- were eliminated because they didn't -- because they had teeth that were rotated or teeth that were leaning or slanted? MR. WINTER: MR. WATKINS: Objection. Vague. I

Well, it certainly is.

intended it to be vague, sir. Q. (BY MR. WATKINS) My question to you is: Do

you have any idea what this change in that definition did to the applications that your ipso facto going back and trying to charge these people with fraud? You know

what effect that change had on the submissions they submitted to you, sir? MR. WINTER: Objection. inappropriate. Don't answer that. That question's clearly It misstates the

It's hostile.

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evidence.

It's badgering the witness and

argumentative. JUDGE EGAN: experienced expert. himself. You want to rephrase your question? think it got lost in here. Q. (BY MR. WATKINS) Have you gone back and I It's cross and this is an He can manage

He's an attorney.

checked to see out of the application that this petition -- that Dr. Nazari has submitted were -- were changed because -- were in -- were inappropriate because of that change in the definition? MR. WINTER: evidence. Objection. Misstates the

The question is founded on a proposition,

which is not in evidence that there was an application of the second statement description in this case and that's not been established. JUDGE EGAN: MR. WINTER: on it. Okay. He -- I believe.

And the question's predicated It's badgering and it's

It's inappropriate.

argumentative. JUDGE EGAN: A. Overruled.

That definition -- and I'm using your word --

of ectopic eruption, which is really a description of what an ectopic eruption is, appeared in the 2012

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TMPPM.

This case is a 2011, '10 and '9 case.

So, our

expert consultants applied the TMPPMs from 2008 to the 2008 cases, 2009 to the 2009 cases and so on. The 2012 TMPPM isn't relevant to this investigation. So, there couldn't be a retroactive

application of any new change. But, secondly, I think I would -- I think I would point out our experts have consistently indicated that what your clients were scoring as ectopic eruptions were not ectopic eruptions under -under any possible construction of the -- of the phrase ectopic eruption, for the most part, in the period of the investigative time period. So, irrespective of any -- any description or definition of ectopic eruption, the experts are saying all along that it didn't meet the standard. Q. (BY MR. WATKINS) Well, that was because your

experts testified -- you and I were both here -- that if you went out in the medical literature and you took a look about what most think an ectopic eruption is that it wouldn't include slanted or twisted teeth, didn't it? MR. WINTER: Objection. Mischaracterizes

the testimony of the experts. JUDGE EGAN: Overruled.

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A.

You know, I -- I rely on the expert witnesses

to know and describe to me what an ectopic eruption is and what an improperly or a properly scored HLD score sheet is. cases. We had three experts review your client's One of whom

Two of them were board certified.

is a national expert in this field and they all came up with the same conclusion. Q. (BY MR. WATKINS) My question was: That

conclusion came up because they went outside of the manual and gave you an opinion as to what they thought generally accepted understanding of what an ectopic eruption was -- eruption was, didn't they? MR. WINTER: answered. JUDGE EGAN: A. Overruled. Objection. Asked and

The experts provided an opinion and have

indicated that understanding and defining an ectopic eruption is a basic premise taught in dental school and that it's not complicated. I know, because I sat

through Dr. Tadlock's testimony, that he went on and did extensive research in an effort to educate this Court about what an ectopic eruption is. I don't know if that answers your question. Q. (BY MR. WATKINS) No, it doesn't.

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My question is that they went outside of what's in the manual to try to provide what a, quote, generally accepted medical understanding of what ectopic eruption was in order to get the definition that you wanted, didn't they? MR. WINTER: evidence. Objection. Misstates the

There's -- there's been no evidence in this

proceeding that Mr. Stick wanted any kind of definition. This is a personal attack now on Mr. Stick

trying to make him out to be some kind of a villain in this case. Mr. Stick is not the subject of the -- he's

the technical respondent in this matter but he's not been accused of anything, except in this line of questioning. wanted -JUDGE EGAN: This is cross and this is an He can say what he There's been nothing of evidence that he

experience -- this is an attorney. needs to say.

But it's not making any points to ask very draconian questions. If you want to ask him what he

knows, I'll go with you there; but it's not assisting us in making a decision in this case. Unless it's assisting you. JUDGE SEITZMAN: No.

Nor are -- nor are

objections that go beyond stating the basis of the

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objection. JUDGE EGAN: Q. is: (BY MR. WATKINS) Objection. Now, my question then to you

You have taken the position in previous testimony,

have you not, that this change, quote/unquote, of this definition, quote/unquote, didn't change anything and that people would look at that old definition and apply this new one because they mean the same thing. that -- wasn't that your testimony? MR. WINTER: I would ask -- excuse me. I Isn't

would ask that he direct the witness to the page and line of the testimony if he's going to be asking about testimony. JUDGE EGAN: If the witness doesn't

remember this -- he's laying a predicate to impeach him. If he doesn't remember and needs to look at it,

he can; but at this point he's asked him if he said that before. A. Witness can either admit or deny it.

And I don't specifically remember -JUDGE EGAN: Objection. Overruled.

A.

I don't specifically recollect testifying

about that but I'm happy to read it. Q. Page 36. (BY MR. WATKINS) Let's go to your deposition

We'll start with line 7. MR. WATKINS: 7 through 22.

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JUDGE EGAN:

Mr. Watkins, you need to pull

the microphone closer to -JUDGE SEITZMAN: yourself closer to the mic. JUDGE EGAN: THE WITNESS: Q. (BY MR. WATKINS) Have you finished reading it? Yes, ma'am. Now, starting on line 7, you Or vice versa, pull

don't know?

You'd have to ask them. Answer: I mean, look, we give the expert We give them the relevant

witness the patient files.

years, the TMPPM and the manuals and we tell them to review the appropriate provisions as it applies to each year and appropriately each patient. Now, if the expert says I understand the definition of 2008 to be X and the expert understands it to be X as it's defined in 2012, well, that's what he's going to apply. And my understanding, Tony, is

what every expert understands -Hang on. My -- hang on.

-- an ectopic eruption to be the definition in 2012. The State just happened to clarify

that for your clients and your other clients so there wasn't any misunderstanding. So, that's at the time when you were taking the position that this was just a clarification

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and not a change, correct? A. Q. Ray (sic), again, this was in the context -That was at the time that you were trying to

say -- take the position that this was a clarification and not a change, correct? A. Q. A. Q. Well, I can't answer that yes or no. You can't? No. In the def- -- in your deposition were you

trying to take the position that it wasn't a change, it was just a clarification? A. Well, I was working within Mr. Canales' So, operating as

phraseology of this as a definition.

we were -- as we are today, we'll call this a definition; although I don't agree that it is a definition. I was explaining to Mr. Canales that this

clarifies any ambiguity in the description of that phrase, ectopic eruption. Q. And you expected them to apply that

clarification to the things that they reviewed, didn't you, sir? A. No. I think this testimony very clearly says

we gave them all the testimony -- or all the TMPPMs and the files and they were directed -- the experts were directed to use the TMPPMs applicable to the year the

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service was delivered and render whatever expert conclusions they wanted to render. If, however, an

expert knows an ectopic eruption to be consistent with the description of ectopic eruption in 2012 that you had up before, well, then, they would apply that simply because they know that to be what a -- what an ectopic eruption is. Q. And all of your experts that have testified

here went outside of the policy to get something that would justify the belief that this is just a clarification and not a change, didn't they, sir? A. But -- but, sir, the problem with that It's -- it's a

question is it's not a policy.

description in a -- in a section of the TMPPM that says, "This is how you fill out the form." policy. Q. A. Q. A. Q. A. It's not a definition. I thought -It's simply a how to. I thought this was in the policy manual? It is. So, it's not a policy? It's part of the instructions on how to It's not a

complete the form. Q. A. It's part of the policy? Okay. It's part of the policy.

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MR. WATKINS: at line 20. Q.

Let's go to Page 73 starting

And go through Page 74, line 3. Now, your testimony here is

(BY MR. WATKINS)

that you got into that business of whether it was a change or whether it was conflict -- clarification based on using Mr. Canales' words. just told us? A. Q. A. Q. Yes. Let's look at Page 73 starting at line 20. I've read it. Okay. I don't think I'm being agitating. Let Isn't that what you

me ask you a couple of more questions. MR. WATKINS: We're not offering that Mr.

Canales was being agitated for the truth of the matter contained therein. MR. TONY CANALES: proud of it. Q. (BY MR. WATKINS) I don't think I'm being Oh, I admit it and

agitating. sir.

Let me ask you a couple of more questions,

The manual, the TMHP manual, do you believe that

manual is a comprehensive manual, covers everything that a doctor needs to know regarding the grading, the grading of deciding whether -- on Page 74, line 1 -somebody's tooth is ectopic or not? I think it provides a definition of

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ectopic eruption. That's not Mr. Canales' words. your words. A. No, sir. It's in the context of the Those are

deposition where we were using Mr. Canales' description of it being a definition. Q. A. And you thought he was right? No. But I was willing to use his words in

order to get through that deposition. Q. So, you're saying under oath to this panel

right now that when you say, "I think it provides a definition of ectopic eruption" that you don't think you've changed your -- your testimony here today? A. No, I don't. Mr. -- Mr. Canales never asked

me, "Is this a description or is it a definition?" He -- he used the words definition. I simply agreed

with his usage of the word definition and -- and explained my answers in the context of definition. Q. You didn't take the position in the deposition

that this was just an explanation and not a definition? A. Q. I'm sorry? Didn't you take the position in your

deposition that that change that we looked at was just an explanation? A. No. It wasn't a change of the definition? I'm

I'm not tracking your question.

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sorry. Q. Well, do you think there's a difference

between an explanation and a -- and a change? A. Q. There can be. Well, do you think that this change that we've

talked about in this definition is just an explanation and not a change? MR. WINTER: JUDGE EGAN: question means. Objection. Vague.

I'm not sure what your

So, you need to rephrase it. I certainly will.

MR. WATKINS:

Can you put back up the two definitions? Q. (BY MR. WATKINS) All right. In that second

one, the manual change, ectopic eruption does not include teeth that are rotated or teeth that are leaning or slanted, right? A. Q. Yes. Is that a change to the definition of ectopic

eruption that's contained in the manual? A. To the extent that there are more words there, To

it is a different paragraph than the one before.

the extent that it -- it alters the -- the description of what an ectopic eruption is, no. Q. And so, if all of your experts, when they

graded all of the applications filed by Dr. Nazari,

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excluded in their grading system teeth that are rotated or teeth that are leaning or slanted, you'd say that's consistent with what the previous manual provided? A. Yes. And let me explain it this way. If you

assume for this answer that an ectopic erupted -ectopically erupted tooth is only one thing and that is a tooth that emerges from the bottom of your chin, then a tooth -- a tooth that is rotated or slanted or any of those other things is not an ectopically erupted tooth. What all of the experts said was, irrespective of that language the things that your client was scoring as ectopically erupted weren't ectopically erupted irrespective of whether they were teeth that are rotated or teeth that are leaning or teeth that are slanted. They simply weren't.

So, that -- that additional language there, aside from not being available to them -- in other words, we didn't give them the 2012 manual and say, "Hey, look at this definition and description and -- and apply it to -- to these cases." Aside from

the fact that we didn't do that, they knew what an ectopically erupted tooth was and they said it wasn't what your client was saying it was. Q. And you do not -- you've already testified.

You don't know which ones of the applications that my

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client provided were scored, including rotated or teeth that are leaning or slanted, do you, sir? MR. WINTER: Objection. Mischaracterizes

the witness' prior testimony. JUDGE EGAN: It just asked a question. I didn't

Rephrase -- reask your question. think it was -Q. (BY MR. WATKINS)

You do not know sitting here

today how many of the -- of the applications filed by my client were excluded by your experts because they scored them, including as ectopic eruptions, teeth that were rotated or teeth that were leaning or slanted? A. Q. The "they" in your question being your client? Yes. No, no. My client's applications that you submitted to your experts, do you know how many of them they said they don't reach 26 because he scored them when -- if they were rotated or they were slanted or leaning? A. So -MR. WINTER: JUDGE EGAN: A. Objection. Overruled. Vague.

I -- before I answer I want to make sure I Your client submits an HLD score and calls An

understand.

the tooth ectopically erupted because it's slanted.

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OIG expert says, "Slanted is not ectopically erupted; therefore, I'm not allowing this," right? Q. A. Q. A. (BY MR. WATKINS) Right.

Do I know how often that happened? Right. I don't know. All I know is that 100 percent

of your client's HLD score sheets had inflated scores. MR. WATKINS: JUDGE EGAN: Objection. Sustained. Nonresponsive.

Just answer his question. Q. (BY MR. WATKINS) Now, has -- to your

knowledge has the federal government ever clawed back from the State of Texas any money when either a court judge or an administrative judge found that there was no fraud? A. Your question is since March of 2011 when the

Affordable Care Act took place -- or took effect and the answer is no because we've not had that situation. Q. Do you think the federal -- that would call

for speculation on both of our parts. Now, then, have you ever -- have you looked at the witness list for this hearing? A. Q. No. Are there any parents -- parents of any of the

children that are the subject of my client's

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application here in the room that you know of? A. Q. Not that I know of, no. Are there any office staff persons of any of

my -- of my client here? A. Q. I don't know. Have you personally talked to anybody that was

either office staff or a parent or any patients of my client? A. I know that I've not talked to any employees I think it is possible that I've I think it's probable that I've

of your client.

spoken to a parent. spoken to parents. Q. A. Q.

And are any of those parents here? I -- I still don't see any of them. So, if there are any program violations that

you're alleging, those that your investigators went out and found out about, you don't have anybody here to testify about it, do you, sir? A. I'm happy to tell you what your client or your

clients's employees have told us. Q. I'm not asking you that. My question was: Do you have any of the

parents, any of the office staff, any of the people here who can testify to these program violations that you've alleged that are outside of your pleadings?

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A.

No -MR. WINTER: Objection. Argumentative.

A.

-- not that I know of. JUDGE EGAN: Well, more importantly we're I'm not

trying to keep the pleading as the finding.

sure you want to go into the areas that we have already excluded. Q. (BY MR. WATKINS) I needed to know -- first of

all, you took the top list of providers, the people that were making the most money, is that correct, 55 of them? A. Q. A. Yes. Do you see anything wrong with doing that? What I asked for was a list of the highest

utilizers of the orthodontic benefit. Q. A. Okay. I don't see that there's any reason not to

look on the first level at who's using the program the most. Q. So, if, let's say, the IRS was going to target

people who might be using too much political activity to get a certain kind of classification, they targeted the Tea Party, that wouldn't be similar to that? MR. WINTER: irrelevant. Objection. Argumentative,

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JUDGE EGAN: Q. (BY MR. WATKINS)

Sustained. You think there's nothing You took the

wrong -- I mean, that's no random sample.

ones that earned the most money and that's where you started for when you had no allegations of fraud, no evidence of fraud in that group. You took that group

and you started an investigation of that group, correct? A. Q. A. No. You didn't start looking at them? No. You said we had no allegations and that

we had no proof of fraud and we selected the group and began investigations on them and that is not correct. Q. You began to see if you could find evidence of

fraud in that group and then that's when you started the investigation if you found some? A. Q. No. Well, how did you decide whether or not there

was fraud in any of those highest producers? A. Yeah. I think that that's a good question.

In that fifth group of 56 initial orthodontic providers, some, like your client, already had cases open and so, we reviewed those cases to determine whether or not there was anything in those cases that was indicative of fraud or anything in the

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complaints that we had received.

For example, in your

client's case Dr. Felkner had complained about your client and overutilization in the 2008 case. So, that

kind of raised or heightened our scrutiny of -- of your client. But keep in mind at that time we were also cognizant of the 2008 audit report which suggested that nobody at ACS was minding the store. So, in looking at

the top utilizers, one of the things that we were -that we were watching for was whether or not there was a significant increase in that particular provider's utilization of the program because that would indicate an awareness that they could submit forms to -- to ACS and get approvals very quickly. So, it wasn't a -- it wasn't simply a, "How much did this provider bill? investigation." Let's open an

I think there was a little bit more But having said

thought that went into it than that.

that, I also think that it is appropriate to look at high utilizers of any benefit program to determine whether or not there is overutilization that occurs; and if the answer's no, then you close the case. if the answer's yes, then you move forward. Q. And you -- it would be fair to say, wouldn't And

it, that you were using, what you would call, the

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Willie Sutton Rule? JUDGE EGAN: Sutton Rule is. Q. (BY MR. WATKINS) Willie Sutton Rule's where I don't know what the Willie

he said -- why did he rob banks and he said because the money's there? A. Q. A. Q. Because that's where the money is. Yeah. Right. And you quoted that as why you picked these

high folks. A. When a provider utilizes a program

extensively, it increases the likelihood that there is waste, fraud or abuse in that utilization. If we take

a look -- if we pull files and we take a look and there's nothing wrong, there's nothing wrong. the case and we move on. We close

If there's something wrong,

then we've identified it and we have an opportunity either to remedy the problem, to provide education or in egregious circumstances, we put a payment hold on and move forward toward recoupment or sanctions. Q. And have you ever testified at the National

Conference of State Legislators? A. Q. No. Have you given -- have you talked to them?

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A. Q.

Yes. Okay.

I've given a speech there. And in that speech did you say, "We

have problems with orthodontists and dentists abusing the system. So, we identified the top 50 utilizers.

Identified about $400,000 million in overpayments and conducted a series -- actually we're in the middle of conducting a series of investigations on those providers"? A. Did you say that?

I don't remember. MS. MOORE: Your Honor, this witness needs

a break.

If we can take five minutes. THE WITNESS: I've got to make childcare

arrangements.

I just need to send a text to my wife. Okay. Let's go off the

JUDGE EGAN:

record for a couple of minutes. MS. MOORE: courtesy. (Off the record) JUDGE EGAN: We're going back on the It is now 5:10 Thank you. Appreciate the

record, SOAH Docket Number 529-13-0997. p.m. on May 30th, 2013. Q. (BY MR. WATKINS)

You may proceed with cross. Are you familiar with the

Frew case? A. Q. Yes. Do you think that case had anything to do with

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the increased participation by providers under the Medicaid Act? A. I think that -- I think that that's a -- a

really good question. I think that -- I know that Frew did not increase orthodontic reimbursement rates. It did, So, I

however, increase dental reimbursement rates.

think that there is a strong probability that dentists were drawn into the Medicaid program because of the higher dental reimbursements rates. However, that

doesn't explain the additional provider increase in orthodontic providers, that is to say any orth- -anybody who billed in orthodontic coding. And I think

the conclusion there is that the Frew increases in dental rates took dental rates from an abysmal basement to probably a mediocre or meager first floor. But I do

think that a substantial number of the 338 percent increase in orthodontic providers migrated from the dental practice area to the orthodontic practice area because they understood very quickly that there was a lot more money to be made in the orthodontic program. Q. And it is true that every application that my

client has made for reimbursement for orthodontics has been approved by the State of Texas? A. No.

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Q. A.

Why not? ACS is a private company acting as a

third-party claims administrator administering claims for -- for Title XIX. I think it is accurate to say

that the nondental professionals that ACS employed processed all of your client's prior authorizations without reviewing the background information. The

possible exception of that, sir, would be for any of those interceptive treatments that I think even ACS was referring to a dental director. Q. Didn't you testify earlier that there's a

contract with TMHP from the State of Texas? A. Yes, the State of Texas let a contract through

the RFP process. Q. And that they became -- and I believe your

word was, they became the agent for reviewing and approving? A. Q. They are the State's claims paying agent, yes. All right. As the agent, then, their act is

that of the State in terms of approving their -approving the application? A. is yes. I think it is -- the answer to your question But I think it is important also to understand

that ACS was acting outside the scope of its contract. So, if you're -- it's going back a long way for me; but

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if you're acting outside the scope of your agency, you're not acting as an agent. Q. So, your position is gonna be that the conduct

of the agent was outside of its scope when they were approving applications? A. Look, I'm not -- I'm not a contracts lawyer.

All I can tell you is the State of Texas contracted with ACS to do a meaningful prior authorization process. I have not seen any indication other than

that ACS was not doing that, that it was simply approving 95 percent of the prior authorizations of which 90 percent were routinely approved by low-level clerks. And that is not what the contract

contemplates. Q. Well, they may have been doing the job poorly;

but approving the applications is not outside the scope of the agency created by that contract, is it, sir? A. Look, you know, again I'm not a contracts

lawyer and I'm not sure how you -- where -- where the line is between doing a job poorly, not doing it at all and doing a job outside the scope of your agency. I'm telling you today is that what the contract contemplated in terms of prior authorization approvals, ACS does not appear to have been doing at any time. Q. Now, then, the -- but the original question All

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was:

All of the applications by my client were

approved by the only process that the State of Texas had in place to approve or deny those applications. MR. WINTER: Objection. That is not what

the original question was. JUDGE EGAN: just asked. A.

Misstates the question.

Well, answer the question he

They were approved by ACS outside the scope of

what the contract contemplated but we were approved by ACS. Q. (BY MR. WATKINS) They were approved by the

only process the State of Texas had in place to approve or deny these applications? A. I can't agree with that because the only

process is -- is inaccurate and the process was the wrong process. all. It wasn't -- it wasn't a process at

It was simply a move the paper from the left side If this

of the desk to the right side of the desk.

number says 26, then it's approved and that's not a prior authorization. JUDGE EGAN: All right. Mr. Stick, let me

just ask a simple question.

Was there any other entity

that had authority from HHSC to do prior authorization reviews during the time period that's relevant in this proceeding?

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THE WITNESS: JUDGE EGAN: MR. WATKINS: JUDGE EGAN:

No.

Only ACS.

That's it. I wish I had asked that. I thought you were trying -I would have objected.

JUDGE SEITZMAN: Q. (BY MR. WATKINS)

Now, I want to talk a minute That

about the -- your random sampling process.

accuracy ended up with 145 cases in the petition. That's not accurate, right? MR. WINTER: evidence. JUDGE EGAN: question. Q. (BY MR. WATKINS) There is the figure 145 That's not I'm sorry. I didn't hear the Objection. Misstates the

cases in the petition that's on file here. an accurate number? MR. WINTER: JUDGE EGAN: A. Objection. Overruled. Vague.

The number -- I don't know that number 145.

I

didn't -- I haven't read the pleadings, but that number did not come from the random sampling. different things. Q. (BY MR. WATKINS) It didn't come from the data They're two

that you-all provided to your lawyers? A. So, the random sampling process tells us the

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number of cases to draw in order to obtain a statistically valid random sample. That number was 85

through stage two, 63 through stage one and that's what we drew. Once the case gets transferred to sanctions,

you'd have to ask the lawyer who drafted the petition how they ended up with 145 problems. answer to that. Q. Now, is that random sample software that you I don't know the

use Excel software? A. Q. Some of it is Excel software. Well, you've had other cases where you have

had to pull down your claim because the random sample process was found to be defective, have you not? A. Q. I have not, no. All right. I don't know whether OIG has.

So, you were not present when Mr.

B. D. McCullough testified in one of the previous cases brought by OIG? A. Q. I don't know who that is. But you do have Excel as part of the software

that you use for your random sample? A. Q. I believe that is part of the seeding step. Now, you're familiar with the hold letter that

went out on April 4th, 2012, correct? A. Q. To your client? Yes.

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A.

I don't know that I've ever read it but I'm

generally familiar with hold letters. Q. Well, do you have any argument with the date

that it went out on April the 4th, 2012? A. right. Q. Do you need to look at the letter to confirm Not particularly. I mean, that sounds about

that date? A. Q. Yes. Okay. MR. WATKINS: MR. WINTER: Counsel? A. Q. Okay. I've taken a look at it. So, that's the correct date, I hand the witness P82. Do you have a copy for me,

(BY MR. WATKINS)

April 4th? A. Q. April 4th is the notice of payment hold. Okay. I want you to tell me all the credible

allegations of fraud you had on April the 4th, 2012. A. Paragraph 1. JUDGE EGAN: offered into evidence? MR. WATKINS: Unless he wants to argue -Did you want to have this

I'm just asking for the date April the 4th, 2012. A. I -- the date of the letter's April 4th, 2012.

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MR. WATKINS: will offer it. JUDGE EGAN: Petitioner's Exhibit 82? MR. WINTER: JUDGE EGAN: evidence. reporter. MR. WINTER:

That's all I need, Judge.

I

All right.

Any objections to

No objection, P82. Exhibit P82 is admitted into

I'm going to hand my copy to the court

Judge, while we have a slight

pause here, I am -- if I may -- I don't anticipate any objection -- I want to compare this with our file copy to make sure it comports with it. JUDGE EGAN: It's already been admitted.

So, if it's the wrong one, let us know. JUDGE SEITZMAN: I think we're pending -I think we're

I think we have a question pending.

waiting on Mr. Stick's answer to the question. A. You're asking me where I see fraud or where

the allegations of fraud are? Q. (BY MR. WATKINS) No. My question is: You've

testified at great length about all this stuff you knew. I want to know what credible allegations of

fraud you knew about at the time that you caused this letter to be issued. A. Well, we were cognizant of inflated HLD

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scores.

We had spoken to at least one parent who

indicated she never took her child for braces to Antoine Dental but there were billings for that Medicaid number. We were aware of appliances that your client billed for, that he never put into the mouth of a -- of a child. We were aware of complaints that your

client had billed for Medicaid-paid services to -- that he billed the recipient or the recipient's parent or guardian for Medicaid-paid services. We were aware

that your client was using noncertified, nonauthorized individuals to perform nondelegable dental services. We were aware that your client was billing, on a number of occasions, for services to patients that seemed impossible given the time limitations in a day. right now. Q. Okay. Now, then, have any of those parents That's what's coming to my mind

testified at this hearing? A. Q. used. used? A. Q. Not to my knowledge. Has anybody testified about complaints about I don't believe so. You've -- you were aware of appliances not Has anybody here testified about appliances not

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the billing? A. Q. Not that -- not when I was in the room. Has anybody here testified about noncertified

people doing nondelegable services? A. Q. I don't -- I don't know. Has anybody here testified about the fact that

they're billing for a number of services in the day that was unusual or impossible or whatever word you used? A. Q. A. Q. I think I talked about it earlier. You did? I think I did. Anybody here testify to those -- to that

excessive number that was done in a short period of time, besides you? A. Q. I don't think so. Now, inflated HLD scores, who did you rely on

to tell you that the H- -- I mean, you're not qualified to determine if the HLD scores are inflated yourself, are you? A. Q. No. Okay. Who did you rely on to determine if the

HLD scores were inflated? A. Q. Well, we had three experts review the file. Who were they?

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A.

Dr. Evans, Dr. Tadlock, Dr. Petrick. JUDGE EGAN: THE WITNESS: Who's the last doctor? Petrick. All right. Now, Dr. Petrick

Q.

(BY MR. WATKINS)

has not testified here today? A. Q. Correct. And you've not submitted any kind of evidence

from Dr. Petrick in this hearing? A. Q. No, I don't believe so. All right. Dr. Evans -- quoting from proposal

for decision in SOAH Docket Number 529-12-3180 Page 34, Finding Number 33 -JUDGE EGAN: MR. WATKINS: Q. (BY MR. WATKINS) Is that the Harlingen case? Yeah. -- Dr. Evans' view of

ectopic eruption and his scoring of the patients at issue lack credibility, reliability or indicia of reliability and do not verify the allegations of fraud against HID. That finding of fact has become the position of the department, has it not? MR. WINTER: Objection. Relevancy. This

is based upon facts of a totally different matter that's not before this tribunal before these ALJs. Dr. Evans has not been presented before

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you, Dr. -- Judge Seitzman or you, Judge Egan.

This is

improper to take a proceeding that's totally irrelevant to this one and inject it in this proceeding. MR. WATKINS: testimony was found -JUDGE SEITZMAN: talk. JUDGE EGAN: MR. WATKINS: JUDGE EGAN: Hold on. Okay. Excuse me. Hang on a second. Let us I believe that Dr. Evans'

I'm trying -- we're trying to Was it --

figure out exactly what your question was.

was the question whether or not the state -- HHSC adopted that finding? MR. WATKINS: No. My question is:

Whether or not that -- that fact finding has become the position of this department because it deals all over and this is a fact finding. right now. JUDGE EGAN: objection. MR. WINTER: objection, Judge. I insert a different I'm going to overrule the That's the question to him

Is that that question -- well, I'll But...

withdraw my objection for right now. A.

Sir, is your question whether the Office of

Inspector General has adopted the position that

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Dr. Evans is not a credible witness? Q. (BY MR. WATKINS) My question to you is:

Whether or not the law requires the Office of Inspector General to accept Fact Finding 33 as being the fact? A. Well, I'm not advised what -- what the law

requires in that area; but I agree with you that that fact finding is a fact finding. Q. Okay. Now, then prior to April 4th of 2012,

other than Dr. Evans, you mentioned Dr. Tadlock. Correct? A. Q. I'm sorry? The three experts that you said you relied

upon for the letter to go out April the 4th, 2012, you listed Dr. Tadlock? A. Q. A. No, sir. Okay. Your question was not, "What experts did you Your question was,

have prior to April 4th, 2012?"

"What basis did you have to think that the HLD scores were inflated?" And you didn't tell me you wanted me

to limit it to April 4th. Q. My question to you, sir, was what evidence --

what credible evidence of fraud -- credible allegation of fraud did you have prior to April 4th, 2012? you listed Dr. Tadlock. And

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JUDGE EGAN:

If you misunderstood the

question, could you identify who you relied on? THE WITNESS: A. Right. Yes, ma'am.

On April 4th the only orthodontist that we had

reviewing this case was Dr. Evans. Q. (BY MR. WATKINS) All right. And other than

your awareness for people who have not testified and Dr. Evans, who has been found that his view of ectopic eruption lacks credibility, what other credible allegations of fraud did you have on April the 4th of 2012 when that letter was issued? MR. WINTER: Objection. Argumentative and

based upon an irrelevant proposition. JUDGE EGAN: Rephrase your question Are

without adding the inflammatory language, please. you asking him what other credible evidence besides Dr. Evans -MR. WATKINS:

After 45 years you think I I need to

can be less inflammatory and talk slower. learn to do both those things, Judge. Q. (BY MR. WATKINS)

I apologize.

Other than Dr. Evans and the

awareness that you testified to, for which we've agreed nobody has testified to those facts here, what other credible allegations of fraud did you have on April 4th, 2012?

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A.

I'm hesitating because the -- the evidence -You're

I'm trying not to parse what you're saying.

asking what other support for the credible allegations of fraud did we have? Q. I'm asking you what credible allegations of

fraud did you have other than Dr. Evans and those things that you listed that nobody has testified to here in -- in this hearing? A. Q. I'm -- I'm not aware that we had any. Okay. Have you ever taken a report from an

expert and changed it to eliminate favorable stuff in the report to my client? A. Q. A. No. Never? No. MR. WATKINS: If I might confer with

co-counsel for about ten minutes, we may be close to being through. JUDGE EGAN: We'll take a 10-minute break.

(Off the record) JUDGE EGAN: Number 529-13-0997. 30th, 2013. And, Mr. Winter, do you have any redirect? MR. WATKINS: I'm -We're reconvening in Docket

It is quarter to 6:00 p.m., May

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JUDGE EGAN: finished? MR. WATKINS: JUDGE EGAN: Q. (BY MR. WATKINS)

Oh, well, you're not

Not finished. I'm so sorry. Go ahead.

Have you taken any action

against TMHP for their failure to do what you thought they should have done? MR. WINTER: Objection.

I'm gonna caution the witness that I think perhaps you can answer that question in a high level but the question appears to me to be designed to lead into matters that are privileged. And I want to

caution the witness to be careful in his response to that question. MR. WATKINS: Q. (BY MR. WATKINS) Well, let me rephrase. Have you taken any action Have you

that are public records against TMHP? subpoenaed their records? them?

Have you filed suit against

Have you done anything publicly that would

indicate that what you're saying about TMHP was true? A. We have filed no public documents and are not

required to subpoena documents. Q. All right. Did you have -- do you have any

evidence -- I'm not -- I won't ask it that way. Now, you indicated that the -- you had

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done no acts that would prevent Dr. Nazari from presenting applications and, therefore, you testified as to what the drop in applications was after going into managed care. A. Do you remember that testimony?

I think you're conflating a couple of The first one was that after we

statements I made.

took records from Dr. Nazari's office I saw a marked decline in the number of prior authorizations he obtained from 106 average per month to ten. There was another question about whether we had taken any action against Dr. Nazari that would have prevented him from submitting those claims and the answer is no. And I checked this morning and he is

still an enrolled Medicaid provider. Q. Okay. Well, my question to you then is: Do

you think that if you put a hold on his income, you pick up his records and you make a referral to the criminal division that that wouldn't be acts that might discourage him from filing applications? MR. WINTER: speculation. MR. WATKINS: MR. WINTER: I'm asking him to speculate. He's asking the witness to Objection. Calls for

speculate as to Dr. Nazari's mindset. JUDGE EGAN: It does call for some

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speculation.

Rephrase your question.

If you do it

generically then -Q. (BY MR. WATKINS) Generally do you think that

would discourage doctors if you make a criminal referral on them, pick up their records and put a payment hold on them? MR. WINTER: JUDGE EGAN: MR. WINTER: JUDGE EGAN: A. Same objection. Overruled. He's asking the -overruled.

I think that if a provider was aware that he

or she was submitting documents that were false, that would -- those actions would dissuade them from submitting any further documentation, yes. Q. (BY MR. WATKINS) Well, what if -- what if Do

they were submitting documents that weren't false? you think that would defer a doctor's filing applications? A. I think that if a provider is not submitting

false documentation that the most probable course of action in this circumstance would have been to -- would have been to make available to OIG mitigating circumstances that OIG could use to justify a good cause exception and either reduce or eliminate the payment hold.

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And, secondly, it would be my -- I'm trying to imagine how I would act in this situation. And I think if I knew I had done nothing wrong, I would continue to treat my patients and continue to submit bills and continue exactly what I'd been doing all along, secure in the knowledge that I had not done something wrong and that it would work out. Q. Well, let's assume for a moment that you had Let's say for any of the public

done something wrong.

jobs that you held, what if there was an ethics question raised about each of those employments? Do

you think it would preserve the status quo if we can put a hold on your check so you didn't get paid until those things got decided? MR. WINTER: Objection. Mis- -- again,

Judge, Mr. Stick here has not been properly named -accused in any proceeding here. He's not on trial.

The State's process here is not on trial. This is nothing more than a backhanded attempt to inject matters that are wholly irrelevant to this proceeding into this proceeding now. It's an

effort -- and if you read the whole deposition that was put up, you'll see the flagrancy in the questions that were propounded to Mr. Stick in that deposition and you can start with page 73 that's been proffered already.

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It's inappropriate. JUDGE EGAN: need your argument. We just need you -- we don't

Just make your objection so I can These are getting to be

rule on it and we can move on. long and drawn -MR. WINTER: argumentative, Judge. MR. WATKINS: JUDGE EGAN: MR. WATKINS:

Question is improper and

May I respond? Yes, briefly. I've got to work on that

He opened it up when he said this is what he would do. So, I'm asking him what he would do given

the hypothetical situation; and then, secondly, of course, his credibility is at issue in this case and I'm trying to attack the credibility. JUDGE EGAN: overruled. You can go ahead. A. Q. What was your question? (BY MR. WATKINS) My question is: Assume for Overruled. The objection's

a moment that there were ethics questions hanging over your head for any public office that you had and that during that period of time that those things were hanging over your head we put a hold on your check. Do you think that that would be preserving

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the status quo, as you testified to earlier? A. Well, I don't think that your example is Your

the -- is analogous to your clients' situation. client is obligated to submit truthful prior authorization requests. that.

It appears that he did not do

There is credible allegations -- there is

credible evidence that he did not do that. If the State of Texas continued to pay him, the State is at risk for losing all of the money and your client was billing over $2.6 million, $2.7 million a year. So, I can't agree that the

circumstances that you've described are even analogous to those of your client's. Q. Well, you indicated that he's required under Aren't you required

the Medicaid Act to be honest.

under -- in my hypothetical to conduct your position in public office as ethical conduct? A. Q. I don't understand your hypothetical. Well, let's say, for example, hypothetically

that you might be a municipal judge and you were dismissing tickets while you were the judge for contributions to the city. conduct? A. Well, if that had happened, I assume that Would that be ethical

there would be a complaint filed with the State

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Commission on Judicial Conduct and I assume that the State Commission on Judicial Conduct would have issued a reprimand. happen. Q. My question to you was: If you were doing But that didn't happen and it didn't

that, would that be ethical conduct? A. I don't serve on the State Commission on So, I don't have an opinion about

Judicial Conduct. that. Q.

So -- so, you wouldn't know one way or the

other whether that was ethical conduct? A. What I'm saying to you is that I'm not

prepared to answer that question today because I haven't read the judicial canons. Q. A. Okay. Even while you were a judge?

Oh, I did when I was a judge; but I've not And I don't know the answer to

reviewed them recently. your question. Q. All right.

So, still my question is:

Would

it be preserving the status quo in those situations if we put a hold on your check and not pay you while those things were pending? MR. WINTER: I'm going to renew my It

objection, Judge; and the question is argumentive. assumes facts not in evidence.

It's totally irrelevant

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to the matters that are before this tribunal and Mr. Stick is not on trial. JUDGE EGAN: A. Overruled.

I think that the answer I would give to your If there were a law that required

question is this:

not paying a judge accused of ethical violations and if that law also said that withholding a salary was mandatory upon establishing a credible allegation, that is to say verified allegations with reliability, indicia of reliability, then I think the situations would be analogous and then I would say, yes, it is preserving the status quo under those circumstances. But they're -- those circumstances don't exist. Q. Well, what if -- what if you hypothetically While that

were charged with a violation of the law.

case was pending, do you think we -- if we put a hold on your check that would be the status quo? MR. WINTER: I want to renew my objection, If the Court --

Judges, to this line of questioning.

the ALJs have granted him some leeway -JUDGE EGAN: MR. WINTER: Judges, respectively. it's abusive. I have. -- he's made his point, I think it's inappropriate and

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JUDGE EGAN:

I don't know if it's that.

But it is getting fairly redundant and he's not going to agree with you and he has answered your question. I don't think he's going to change it So...

no matter what scenario you pose to him. MR. WATKINS: JUDGE EGAN:

I pass the witness. All right. Judge Seitzman

has a couple of questions. JUDGE SEITZMAN: Mr. Stick, do you know The

when the hundred percent hold was put in place? letter that came in was dated April 4th. know when the hold went into effect? THE WITNESS:

But do you

The action request, which we

would have sent to ACS and the managed care companies, would have gone out a day or two prior to April 4th. don't know when April 4th was. If April 4th was a I

Monday, then the action request went out -- went out that day. Otherwise, there's usually a one-day lag between taking the action and the letter going out. JUDGE SEITZMAN: So, the action occurs and

then the letter goes out or the letter goes out and then the action occurs? THE WITNESS: letter goes out. The action occurs. Then the

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JUDGE SEITZMAN:

Okay.

So, if the letter

went out on April the 4th, then it's my understanding, then, that the action would have conquered a business day before -- generally a business day before that? THE WITNESS: Generally, yes. You talked about -- and

JUDGE SEITZMAN:

it seems like days ago but it was only hours ago -about taking the top, I think you said, 56 orthodontic providers. Those 56 do you know what percentage,

roughly, those 56 represented of total orthodontic providers in the Medicaid program in Texas? THE WITNESS: At one point I looked up the

total number of orthodontic providers and my recollection is there are I think in the neighborhood of 400 who are enrolled in the Medicaid program. think that that's the right answer. JUDGE SEITZMAN: And then you indicated I

that when it went to managed care there were three DMOs. Now, there's two DMOs. Do you know how many

providers there are currently that are getting -- still get prior authorization, correct, under -- from those two DMOs, orthodontic providers? THE WITNESS: I don't know. I don't know

how many there are right now.

I think it is somewhat

less than 400 but I don't know the number.

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JUDGE SEITZMAN:

At some -- and let me If

pick something that I don't think is in play here.

I do step on -- you know, if I step on somebody's toes, let me know. MR. WATKINS: Can we object? You can object.

JUDGE SEITZMAN:

Actually I sustained a hearsay objection to one of my questions before early on in my career. It was a very good objection. But I was able to

rephrase my question so it didn't fall for hearsay. Let's assume that -- and do you mind if I call TMHP or whatever the entity just the intermediary -THE WITNESS: That's fine. -- because I'm used to

JUDGE SEITZMAN: that with CMS and -THE WITNESS:

Sure. All right. So, if

JUDGE SEITZMAN:

intermediary takes an action -- like they just say, you know, the 20 -- it doesn't matter if it's 20 or 25. We're just going to approve 25 years old for Medicaid orthodontic care and the OI- -- and the OIG finds out about it, then what -- or the agency finds out about it, then what -- we don't have the contract in front of us. And we've asked for it and I'm sure it'll be

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provided.

But generally do you know what kind of

actions, then, either the OIG or the agency itself how does it deal with the intermediary? THE WITNESS: Sure. So, the Health &

Human Services Commission can take action on the contract under those circumstances. a payment hold on their own. liquidated damages. mind immediately. They could impose

They could impose

Those are the two that jump to my They can impose corrective action. I think under certain

They can sanction them.

circumstances they can terminate the contract if there's a big enough problem. OIG has available to it all of the actions that we could take against a provider. So, we would

look at the intermediary in those circumstances as a provider. We could put them on a payment hold. We could refer them for We We

could sanction them. education.

We could do those kinds of things.

could seek recoupment. Under the contract by the way the Health & Human Services Commission could also seek recoupment for those -- for those breaches under contract. JUDGE SEITZMAN: Okay. So, to the extent

that they pre-authorize 20 years old they don't -- the agency wouldn't recover for that but to the extent that

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they were pre-authorizing doing work for and approving 25 years old, that -- that was the difference that you talked about recoupment. If part of the work was valid

and part of the work was outside the contract or invalid, you go after the invalid. THE WITNESS: Exactly. Those are the questions

JUDGE SEITZMAN: that I had. Thank you. JUDGE EGAN: MR. WATKINS: JUDGE EGAN:

All right. This time.

You're --

You're through. Excuse

Mr. Winter, you ready to recross? me. Redirect? MR. WINTER: Judge?

Can I take a short break, Just a minute. You're

Probably won't take very long. JUDGE EGAN:

We'll just all stand.

welcome to stand up. JUDGE SEITZMAN: JUDGE EGAN: short period. (Off the record) JUDGE EGAN: think less than a minute. record. Mr. Winter, you may proceed with redirect. We took a very short break, I So, we're back on the Go off the record.

We'll go off the record for a

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MR. WINTER:

Thank you, Judge.

REDIRECT EXAMINATION BY MR. WINTER: Q. Mr. Stick, just in response to the question

from Judge Seitzman, regardless of any action that either HHSC may make or HHSC or OIG -- OIG may take with respect to the, quote, intermediary or the ACS Healthcare contractor -- regardless of what any action the State may take with respect to the contractor, does that relieve the provider from his obligation or her obligation to fully comply with all Medicaid rules and regulations? A. Q. No. Even if HHSC or OIG, once you've taken action

to recoup funds from the intermediary, does that foreclose OIG or the State acting either through HHSC or your office -MR. WATKINS: Q. (BY MR. WINTER) MR. WINTER: objection yet. Objection. Leading.

-- or any other office -I haven't finished the

I think he can object after I finish it

but I'd like him not to interrupt me. Q. (BY MR. WINTER) -- regardless of any recovery

action that OIG takes or HHSC takes, does that preclude the State from pursuing any remedy it may have

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available against the agency provider? MR. WATKINS: JUDGE EGAN: A. Objection. Overruled. Leading.

If -- if HHSC or OIG had recouped from the

intermediary the full amount of what would be an overpayment in that case -- so, qualifying 25 years old for dental care to the tune of a million dollars, if we recouped -- either one of us recouped a million dollars from the intermediary, we would not, then, go to the provider and seek to recoup another million dollars. Let's assume that it was just one provider who did it. But we could still sanction the provider. We could -- we could assess a monetary penalty for submitting a false claim. for education. We could refer the provider

We could -- I mean, we can -- we can do

anything we want, except for -- for recoupment, if we had fully recouped. If we've only partially recouped, then we could seek partial recoupment the remaining part from the provider and, of course, nothing precludes the intermediary from trying to sue the provider to recoup money as well, if there was something going on there. Q. (BY MR. WINTER) So, if I understand your

answer, the State would not go after the same money twice. If you recovered, say, 25 million from the

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intermediary, you wouldn't recover that same 25 million again from the provider? A. Q. That's -- that's correct. But it would not foreclose the State from

pursuing other remedies that may be available against the provider for its violations? MR. WATKINS: JUDGE EGAN: Overruled. A. Nothing -- nothing would preclude the State Object to leading. I'm sorry. I couldn't --

from pursuing administrative remedies, administrative sanctions for a program violation. The only -- the

only remedy that would be precluded -- the only sanction that would be precluded would be the recoupment. However, I would also add that if -- if

this were clearly intentional conduct on the part of the provider, then, of course, exclusion from the program is always a possibility as well. MR. WINTER: witness. MR. WATKINS: JUDGE EGAN: All right. after 6:00, 6:10. 9:00. No further questions. All right. You are excused. Thank you, sir. I pass the

It's a little after -- little

We'll reconvene tomorrow morning at

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And we'll go off the record to discuss how -- how we'll proceed tomorrow. (Record adjourned)

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THE STATE OF TEXAS COUNTY OF LEE

) )

for the

above and foregoing contains a true and correct transcription of all portions of evidence and other proceedings requested in writing by counsel for the parties to be included in this volume of Reporter's Record, in the above-styled and numbered cause, all of which occurred in open hearing and were reported by me. I further certify that this Reporter's Record of the

proceedings truly and correctly reflects the exhibits, if any, admitted by the respective parties. WITNESS MY OFFICIAL HAND this the _______ day of

______, 2013.

t rip sc d . an e gy Tr ign lo s no Elly ch d PY ifie ica l te t O er ron ga C l c ct lLe C a le TI n i e ea EN rig as R TH e o w ing e AU Th fil us

I, Stephanie McClure Lopez, Court Reporter in and State of Texas, do hereby certify that the

_____________________________ STEPHANIE McCLURE LOPEZ, CSR Texas CSR 3483 Expiration: 12/31/13 KEN OWEN & ASSOCIATES, LP. CRCB Firm Registration No. 115 801 West Avenue Austin, Texas 78701 (512) 472-0880

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