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REPORTER'S RECORD VOLUME 4 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 31st 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 31st, 2013 RESPONDENT'S WITNESSES Behzad Nazari Direct 8,137 Cross 70 150 160 166 167 Page

Respondent Rests............................ Motions by Petitioner....................... Adjournment................................. Court Reporter's Certificate................ EXHIBIT INDEX RESPONDENT'S NO. 86 DESCRIPTION OFFERED 5 155 153 OFFER OF PROOF ADMITTED 7 157 155

Dr. Ornish deposition CD-ROM documents Spreadsheet

12

87
13

89
14 15 16 17 18 19 20 21 22 23 24 25

RESPONDENT'S NO. 88

DESCRIPTION 150

Linda Altenhoff rebuttal testimony

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P R O C E E D I N G S JUDGE EGAN: We're reconvening in SOAH It is 9:05 a.m. on May

Docket Number 529-13-0997. 31st, 2013.

And, Mr. Moriarty, are you ready to call your first witness -MR. MORIARTY: JUDGE EGAN: first one in this case. MR. MORIARTY: Good morning. Before I do I am, Judge. -- for the morning not the

that, I've marked Dr. Ornish's deposition as Respondent's 86; and I offer Respondent's 86 into evidence. JUDGE EGAN: Any objection? Yes. We -- yes, your

MR. HECTOR CANALES: Honor.

We object to him offering Doctor -- Dr.

Ornish's deposition? MR. MORIARTY: Right. The entire

MR. HECTOR CANALES: deposition? MR. MORIARTY:

Their expert's deposition

we're offering it into evidence. MR. TONY CANALES: Judge? JUDGE EGAN: No. Can I -- can I answer,

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JUDGE SEITZMAN: figurehead this morning.

It's up to her.

I'm a

MR. HECTOR CANALES:

Your Honor, that

deposition was not marked as a -- as an exhibit in their case -- in their case in chief and there's -- I could see using the deposition to impeach a witness, if he answers differently. purpose. That would be offered for that

But in this case, that would be improper and

it wasn't part of their -- their exhibit list. JUDGE EGAN: your exhibit list? MR. MORIARTY: We had no idea that Response? Was it part of

Dr. Ornish -- who we were told up until 9:00 or 10:00 o'clock last night was going to be here to testify and we were looking forward to having the opportunity for him to share his view of the world with this Court; but he apparently had personal business, pressing personal business that caused him to abandon the field of battle. So, we now offer his entire deposition into evidence to help this Court understand what happened here. JUDGE EGAN: Respondent's Exhibit 86. MR. MORIARTY: And I'll now call Doctor -Okay. I'm going to allow in

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JUDGE EGAN: sorry. MR. MORIARTY:

So, it is admitted.

I'm

Thank you, Judge.

Call Dr. Nazari to the stand. MR. HECTOR CANALES: While Dr. Nazari is

approaching, your Honor, if I could, just a housekeeping, clear up P82? JUDGE EGAN: Yes. It was brought to our

MR. HECTOR CANALES:

attention that petitioner's offered two exhibit numbers under -- identified as P82. those to P82A. We have changed one of

So, P82A is the Texas Health & Human

Services Commission, April 4th, 2012, notice of payment hold letter. And I have made that correction with the

official court copy -JUDGE EGAN: All right. -- as well.

MR. HECTOR CANALES: JUDGE EGAN: copy.

I believe I handed you my

So, if I could have it back. MR. HECTOR CANALES: JUDGE EGAN: Yes. I'm sorry.

And just for the record, I don't

there is another duplication and that's 81. have those exhibits up here. could get that -MR. HECTOR CANALES:

So, during a break if we

We'll work on that,

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your Honor. JUDGE EGAN: ahead and proceed. Would you swear the witness in, please? BEHZAD NAZARI, having been first duly sworn, testified as follows: DIRECT EXAMINATION BY MR. MORIARTY: Q. A. Q. please? A. I'm Behzad Nazari, B-E-H-Z-A-D first name, Good morning. Good morning, sir. Would you introduce yourself to the Judges, Thank you. All right. Go

Nazari, N-A-Z-A-R-I. MR. MORIARTY: 64-42-004? JUDGE SEITZMAN: MR. MORIARTY: 64-42-004. JUDGE SEITZMAN: Q. (BY MR. MORIARTY) Thank you. Dr. Nazari, we have a Is that 62? That's Petitioner's Stacey, could I have

document that's been taken from your files that's been offered into evidence. look at this file? A. I believe so. Have you had the opportunity to

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Q.

What we see on that file is one of your dental

assistants has filled out the diagnosis on a blank HLD form before any patient was examined. What I'd like

you to do is I'd like you to look at the Judges and I'd like you to tell the Judges why your dental assistants are filling out diagnose -- diagnosis forms without a patient. MR. HECTOR CANALES: lacks foundation. JUDGE EGAN: A. Overruled. Objection. 601,

If you can compare the previous HLD score

sheets with Dr. Kanaan's handwriting, this is Dr. Kanaan's handwriting. We have never let any

assistants to fill any HLD score sheet with a -- you dictate to them -- you might see that, you know, I'm sitting there. I have gloves on. Patient is in the

chair and then we are examining them and they might fill the numbers for us like overjet, overbite or whatever it needs to be called and we might see some of those. I have never and ever, ever let any person, other than me or Dr. Kanaan or even the general practice any other doctor to do diagnosis or complete initial index. Q. Never done that.

Which question was it that you were answering?

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A.

That why did I let -MR. HECTOR CANALES: Objection.

Argumentative. JUDGE EGAN: A. this. MR. HECTOR CANALES: JUDGE EGAN: Dr. Nazari. Sustained.

Why did I let the dental assistant to fill

It's sustained. It's sustained, which

MR. HECTOR CANALES: means you don't have to answer. THE WITNESS: all new to me. Q. (BY MR. I'm sorry. MORIARTY)

I'm sorry.

Yeah.

This is

If I understand your

testimony under oath, you've just sworn under oath before this panel that you have never let a dental assistant fill out one of these forms; is that true? A. Under my supervision when I dictate to them,

they fill it; otherwise, as far as being a doctor and examining or completing an index, no, sir, I've never done that. Q. You've routinely allowed dental assistants in

your practice to do things that are only done by dentists; isn't that true? A. Q. Never. Never?

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A. Q.

No, sir. Okay. So, why don't you explain to this Court

what it was that you were taken before the Texas State Board of Dental Examiners for in 2008. that? A. Q. A. Yes, I do. And what happened in that case? It was an agreed board settlement and I did Do you remember

not admit I let them -- you know, let any dental assistant do anything that, you know, beyond their descriptive duty. Q. My question, sir, is this: What were you

accused of doing, what misconduct were you accused of doing before the dental board? A. If I remember correctly, there was a lack of

blood pressure on the chart and also they had told me that the changing the elastics and then the wires and the -- there were accusations of the -- you know, by the patient that, you know, they put all the brackets and all the braces, which was not correct, which was not founded. Q. My question, sir, is this: You were accused

of allowing dental assistants to do dental work, orthodontics work on your patients and that was the accusation before the State Board of Dental Examiners;

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isn't that true? A. It was -- I don't know what that accusation.

But there was a complaint against me by one of the patients; but as far as, you know, what I was accused of, I don't know. I did not see the actual complaint I don't remember. If you

form from the State Board. have it, I can see it. Q.

What this form indicates -- and I want the --

you to explain to the Court because they need to know this. Are you telling this Court that Dr. Kanaan filled out that entire form? A. That looks to be his handwriting. Class I

molar, crowding, open bite, extract upper right four, TPA. Q. I believe that's his handwriting. But he --

And he did it without any patient identifying

information on the form? MR. HECTOR CANALES: Speculation. A. I don't know what Dr. Kanaan did. I cannot Objection. Form.

speculate on that. JUDGE EGAN: me -THE WITNESS: JUDGE EGAN: I'm sorry. Overruled. Hold on. You need to let

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But you need to let me make a ruling before you proceed. THE WITNESS: JUDGE EGAN: I'm sorry. I know you're nervous. So,

just slow down a little bit and pause before you answer a question so that if somebody has an objection, I can rule on it. THE WITNESS: JUDGE EGAN: A. Okay. Yes, ma'am. Go ahead. Yes, ma'am.

I don't know if Dr. Kanaan -- what I do not know. But there

Dr. Kanaan did on that day. are other identification.

We have the X rays in front We

on the chairs and we have the chart on the chair.

don't just look at a blank piece of paper, you know, do HLDs on parents. JUDGE EGAN: chart or the chair? Okay. You have X rays on the

It wasn't clear. On the chair, that's what I

THE WITNESS: mean.

We have a -- everything is digitalized and then, So, you have the X rays

you know, you have the screen.

there and then, you know, you have -- most of the time you have the pictures of the patients. And then when

we do the examination, there might be a blank form in front of us that when we fill it but you have the actual paper chart in front of us so we can -- we know

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that there are -- this paper belong to this patient. We don't just get a piece of paper and then randomly, you know, examine patients or complete the HLD index score. We don't do that. JUDGE EGAN: Q. A. Q. (BY MR. MORIARTY) No, sir. Well, what was the condition of this form Go ahead. You don't?

before Dr. Kanaan put paper -- put handwriting on it? This paper right there that's in front of you, 64-42 -A. Q. What was the condition? Sir -JUDGE EGAN: Q. (BY MR. You need to wait. -- please allow me to I don't know, sir.

MORIARTY)

finish my -JUDGE EGAN: please. Just wait until he finishes asking the question. THE WITNESS: JUDGE EGAN: you begin answering. THE WITNESS: Q. (BY MR. MORIARTY) Yes, ma'am. If I understand your claim Yes, ma'am. That's why I say pause before I'll instruct the witness,

here today, you never fill out blank pieces of paper --

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Dr. Kanaan does not fill out -- just fill out blank pieces of paper without patient identification. that what you're saying? A. Q. A. No, I did not say that, sir. What are you saying? What I'm saying is that when we have all the Is

records related to the patient in front of us, the paper chart or the X rays so we know that -- who the patient is and then we fill out the HLD index form. their name is missing, later on it's going to be completed by the dental assistants or, you know, by a -- one of our, you know, billing persons, it is in the patient's file. Q. How -- how would you know which patient this If

diagnosis goes to? A. Because it belongs to that chart, which is in We don't have ten patients on the same

front of us. chair. time. Q.

You have one patient, one chair, one chart at a

So, Dr. Kanaan fills out the diagnosis on a

blank sheet of paper before the name of the patient is even filled in? A. Q. A. That's what you're claiming?

I don't know. You don't know? I don't know. It might have happened. I

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don't know but I don't see anything wrong with it. Q. I have... No doubt. MR. HECTOR CANALES: JUDGE SEITZMAN: Objection. Sidebar.

That's exactly what we We don't need that. I know better

were talking about, Mr. Moriarty. MR. MORIARTY: than that. Q. (BY MR. MORIARTY)

I apologize.

All right.

Now, when you

testified before the legislature, you testified on behalf of the Texas Dentists for Medicaid Reform? A. Q. A. Q. A. Q. Yes, sir. Who asked you to do that? I did. You asked yourself to do that? That was my volunteering, yes, sir. And did you meet with anybody before you

testified? A. Did I meet with anybody before I -- yeah,

the -- my colleague dentists. Q. Which ones? THE WITNESS: JUDGE EGAN: THE WITNESS: Do I have to say the names? Yes. I do? Okay. Well, your Honor, I

MR. HECTOR CANALES:

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object to the relevancy -THE WITNESS: I mean, if I have to. -- of his testimony

MR. HECTOR CANALES: before the question. JUDGE EGAN: question? MR. MORIARTY: Q. (BY MR. MORIARTY) I'll

What is the relevancy of this

prove it up, Judge.

When you testified before

the legislature, you swore under oath before the legislature that you had never had any paperwork violations in your entire career as a Medicaid dentist, isn't that true, or words to that effect? A. Q. A. Q. I said I have never paperwork violation? Yes, sir. I don't believe I said those words. Did you intend to communicate to the

legislature that your record keeping is essentially flawless? A. Q. I did not intend to do that. No, sir.

In fact, your record keeping has substantial

defects in it, doesn't it? A. Probably. MR. MORIARTY: Exhibit 25. Q. (BY MR. MORIARTY) Now, you know we have Let's look at Petitioner's

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asserted that you have -- you're missing a number of HLD score sheets in the patient files. that, aren't you? A. I believe everything has been in the chart You're aware of

when we turned it in. Q. That doesn't answer my question, sir. My question, sir, is: You're aware that

the State of Texas says that you have got files that are incomplete. Specifically there are five files that You're aware that we've

are missing HLD score sheets.

made that assertion, aren't you? A. Q. A. Q. A. we had. Q. I don't have any doubt, sir, that you "turned Yes, sir. And that assertion is true, isn't it? I don't believe so. Do you deny that assertion? I -- probably yes because I turned in whatever

in whatever I had." My question is: complete; isn't that true? A. Q. I need to look at the records. We will look at the records. We're going to Those records were not

look at your file. Now, this is actually from your lawyer's

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file. P00417? A. Q.

That's -- see that P down there at the bottom,

Yes, sir. That means that copy of your patient record

came from your lawyer's files. A. Q. Okay. Yes, sir. Now, that page 001, that's not an

All right.

HLD form, is it? A. Q. A. Q. A. Q. A. Q. A. Q. A. Q. A. Q. A. Q. A. This one, no, sir. Page 2, that's not an HLD form? No, sir. Page 3? No, sir. Page 4? No, sir. Page 5? No, sir. Page 6? No, sir. Page 7? No, sir. 8? No, sir. 9? No, sir.

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

10? No. 11? No. 12? No. 13? No, sir. That's it. That's all there is. Mr. Moriarty, which patient No.

JUDGE EGAN: number is this?

I've got the -Patient -- it's 25,

MR. MORIARTY:

Petitioner's -- it's Patient 25. Q. (BY MR. MORIARTY) There is no HLD score sheet

in that file, is there? A. Q. A. is. Q. Do you admit now that you lack the proper file I don't see it, no, sir. That's a records violation, isn't it? If I don't have it, I don't know. Probably it

for Patient Number 25? A. I do not admit to that because you don't have

it, it doesn't mean it did not exist. Q. Sir, the rule is that you're obligated to keep

your patient files in proper order so that when we, the

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State of Texas, show up to examine your patient records we can take that patient record, make our copies of that record and we -- we live and you live with whatever's in that file at the time we show up to get it; isn't that right? A. Q. I believe so, yes, sir. And if it's not in the file, the rule in

medicine is it didn't happen; isn't that true? MR. HECTOR CANALES: Honor. A. I -JUDGE EGAN: objection. MR. HECTOR CANALES: it's argumentative, your Honor. JUDGE EGAN: A. is? Q. (BY MR. MORIARTY) Sir, you're obligated to Overruled. The rule It's -- it's argu- -What's your objection -Objection, your

Can you repeat the question again?

keep the HLD score sheet, the molds, the X rays, the CEF, the consent forms, you're obligated to keep all of that information in the file, aren't you? A. Q. Yes. And if you fail to do so, you are not entitled

to turn in claims for that file to Medicaid; isn't that

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true? A. At the time that we completed the HLD, the

X rays, the photographs and we send to Texas Medicaid they will not process any -- any pre-authorization without proper documentation. So, if it is missing and

we did not turn five HLDs that day, it does not mean that they never existed. It did existed; otherwise,

the pre-auth- -- pre-authorization will never be processed. Q. Here's my question, sir: When we show up to

get your patient files, we're entitled to rely on whatever's in the file that day. A. moment. True? That

That day, I don't know that day is true.

It might take us a few days to gather all the

information. Q. You're not claiming that you lacked time to

get your files together when we came up to get the files, are you? A. Q. We -- it took us sometime to get it. Did you have adequate time to gather up all

the proper documents so that we could get all the proper files? A. Q. I believe so. All right. And you acknowledge that this file

did not have an HLD form and, thus, did not --

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A.

In that time -- if you don't have it, yes, I

agree with it. MR. MORIARTY: my question. A. Sorry. JUDGE EGAN: question. Again, listen to the Your Honor, I didn't finish

He's asking you whether or not when they

came up to pick up the file was the HLD score sheet in the file. THE WITNESS: A. Okay.

As you say, it does not exist -- it does not

exist in that time, yes, sir. Q. (BY MR. MORIARTY) All right. And will you

concede that for Patient 44, Patient 48, Patient 51 and Patient 53, all those files are also missing HLD score forms, aren't they? A. At the time that they picked up the charts,

yes, sir. Q. All right. Now -Will you give me those

JUDGE EGAN: numbers again?

I got 44, 48. 25, 44, 48, 51 and 53. Thank you. Now, when we are evaluating

MR. MORIARTY: JUDGE EGAN: Q. (BY MR. MORIARTY)

your conduct based on what we find in your chart, all

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we've got to go on is what you provide to us; isn't that true? MR. HECTOR CANALES: speculation. The question is asking for Dr. Nazari to enter the mind of OIG of what they have and don't have. JUDGE EGAN: A. Q. Overruled. Objection. Requires

I don't know the answer, sir. (BY MR. MORIARTY) Well, you're not claiming

that we're treating you unfairly when we go through your files and we find a lack of proper documentation? A. Q. I'm not claiming anything, sir. Okay. MR. MORIARTY: Q. (BY MR. MORIARTY) Now, let's go to P64-25. Now, this is the HLD score

sheet for Patient Number 25, correct? A. Q. Yes, sir. Now, let's go to the upper left-hand corner of Do you know what that is?

that document. A. Q. No, sir.

Let me represent to you that that is a mark

that indicates that that is the document that -- as it was Bate stamped by the Texas Health Medicaid Partnership. That indicates that HLD form did not come

from your records, did it?

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MR. HECTOR CANALES: testimony by counsel. A. I believe so -MR. HECTOR CANALES: JUDGE EGAN: there? MR. MORIARTY: Q. (BY MR. MORIARTY)

Objecting to

Excuse me.

Do you have a question in

Yes, sir (sic). This form, this document

P64-025 did not come from your files, did it? MR. HECTOR CANALES: objection, your Honor. Objection -Based on --

Lacks foundation.

the question is based on the number that Dr. Nazari's already testified he doesn't know. JUDGE EGAN: it came from his file. Go ahead. Overruled. Then I would request He can answer whether or not

MR. HECTOR CANALES:

the entire picture -- the entire sheet be shown to him. JUDGE SEITZMAN: a second. JUDGE EGAN: Proceed. MR. MORIARTY: Q. (BY MR. MORIARTY) Thank you. I get old and sometimes I All right. Go ahead. Well, give us -- give us

forget stuff.

So, if I've asked this before, I'm just

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trying to have a clean record. MR. MORIARTY: down on the bottom, Stacey? MR. KHAROD: Q. (BY MR. MORIARTY)

This document P --

What's the Bates number

P64-25-0002. P64-25-0002 didn't come

from your records, did it? A. Q. If that paper has that stamp on it, no, sir. Okay. So, we're now in agreement that you're

missing five HLD score sheets, correct? A. Q. Yes, sir. Now, let's go to the question of molds. Doing

a dental mold is important for the purpose of properly evaluating the medical condition of a child; isn't that true? A. Yes, sir. MR. MORIARTY: counsel, your Honor? JUDGE EGAN: MR. MORIARTY: witness? JUDGE EGAN: JUDGE EGAN: to look. MR. MORIARTY: JUDGE EGAN: Sure. I mean, you can put that in Yes. Give counsel an opportunity Yes. And may I approach the Okay. May I approach

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front of the witness but let counsel look at it. THE WITNESS: MR. MORIARTY: Yes, ma'am. For the record, I'm not I'm going to seek

going to offer this into evidence. testimony from it. JUDGE EGAN: Judges? MR. MORIARTY: JUDGE EGAN: Q. (BY MR. MORIARTY) I do. All right.

Do you have a copy for the

Proceed.

Dr. Nazari, do you remember

when the folks from OIG showed up at your office, what was that, November of 2011? A. Q. Yes, sir. Now, do you recall the testimony of Jack Stick

yesterday? A. Q. Yes. You were present during the entirety of his

testimony? A. Q. Yes, sir. And you heard Mr. Stick give the numbers for

how many patients you guys had during the time period before OIG showed up seeking your records and the drop off in the number of patients? A. Q. Yes, sir. Can you explain that to the Court?

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A. Q. A.

Explain why there was a drop off? Yes, sir. Okay. On -- November when they came in and Okay? December we

then next month is December.

usually close between, like -- before the Christmas holidays and New Year, we are closed. a slow time. So, it's always

Not many patient seek dental treatment. Between January 1st and March 1st there

was a suspension of all the orthodontic -- you know, new orthodontic acceptance was completely suspended. It is a bulletin up there that we can't -- you know, if you guys allow me, I can show you bulletin showing from January 'til -- January 1st, 2012, and March or -- or February 29th that bulletin said they have suspended all of the pre-authorizations for the new cases. So, it wasn't only me. Nobody in the

state of Texas was sending any -- any cases to the -to any -- TMHP because that's the time that when we all found out that there is a problem going on with the TMHP as far as, you know, pre-authorization process. Then in month of March they started going through all the transitions and -- to the new three dental companies. MCUs they call them, MCA, Delta Dental and Then -Dental what?

also Dental Quest.

JUDGE EGAN:

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THE WITNESS: A.

Dental Quest.

Then there was a confusion whether these

patients are going to be assigned to the same provider or not because it went to the -- from the fee-for-service into an HMO plan, dental DMO plan. don't know whatever they want to call it. Then we I

don't know who these patients are going to be the providers and then we're trying to go through all the applications. We needed to know if we're going to be

approved or not. And immediately sometime in March one of the companies called MCNA, send me a letter that -yes, sir. JUDGE EGAN: MR. MORIARTY: JUDGE EGAN: MR. MORIARTY: March. I'll let him -JUDGE EGAN: what I understand. MR. MORIARTY: Q. (BY MR. MORIARTY) I'll let him keep going. Keep talking. He's in March right now is He's answering your question. I asked through March. Okay. Now he's going on through

JUDGE EGAN: A. No.

Well --

I'm just telling you -- you asked me why I'm just giving you simple explanation.

it dropped.

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JUDGE EGAN: through March. THE WITNESS: A.

You can go ahead and finish

Yes, ma'am.

Then in March -- sometime in March one of the

dental DMO company send me a letter that they have disqualified me because of the same reason we just mentioned, state board agreed settlement. They don't So, we

want me to treat their orthodontic patients.

were just -- it was the confusion and I could not take the responsibility to bring any more patients on board and not being able to treat them. what's going on. Dr. Altenhoff did this to us. We were We did not know

talking to her and we were going through e-mails, calling. They changed -- they changed the director in Dr. John Roberts came in. We were

the Texas Medicaid. talking to them. confusion.

We were talking to DA.

It was mass

Just because we did not accept any cases

does not mean that, you know, I was trying to hide something. JUDGE EGAN: Go ahead. Q. (BY MR. MORIARTY) So, you're saying the fact Okay. Thank you.

that your -- your number of new patients submitted -the fact that that just fell off the charts for the

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month of December is because it was Christmastime? A. Q. That's one of the reasons, yes, sir. Okay. And then January, February and March

was -- you couldn't sign up any cases? A. January and February -- January and February We have the bulletins. About -- for

was complete suspension. Q. Okay.

Now, let me ask you this:

the year -- let's say the year 2010, about how many new -JUDGE SEITZMAN: the year. The door closed. What was the year you were talking? MR. MORIARTY: Q. (BY MR. MORIARTY) 2010. For the year 2010 about how I'm sorry. I didn't get

many new orthodontics patients would you have come in the door per week, per year, per month? A. Q. A. Coming through the door? Yes, sir. Many. How many new patients? But, you know, how many

I don't know.

we have sent to Medicaid is different -- I mean, not Medicaid. TMHP. Probably around -- we were averaging

about -- about a thousand patients, 1200 a year probably. Q. A. 1200? Yeah. That we were submitting to -- we were

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submitting to TMHP. Q. My question, sir, is: For whatever number you

were submitting to TMHP, how many came to you for orthodontic services? A. How many came to me for orthodontic services?

I don't know, sir. Q. A. Well -I can't give you an exact number. JUDGE EGAN: an approximation? THE WITNESS: orthodontics on their own? about 5-600 patients. JUDGE SEITZMAN: Mr. Moriarty, as I How many They came directly seeking Probably 50 percent of them Can you give -- do you have

understood your question to Dr. Nazari is:

new patients, be they Medicaid or nonMedicaid, were coming in in that time period that you've inquired about. MR. MORIARTY: JUDGE SEITZMAN: MR. MORIARTY: JUDGE SEITZMAN: That's -Is that your question? Yes, sir. Dr. Nazari, do you

have -- nobody's going to hold you to an exact number. But do you have an estimate of the number of new patients that came in in that time period?

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THE WITNESS:

Okay.

Can I be more clear?

I mean, both private pay and then Medicaid patients coming in and we actually started the treatment or they just came in for examination and then they just went away? I need -JUDGE SEITZMAN: I'll let doctor -- I'll

let Mr. Moriarty clarify his question. MR. MORIARTY: Q. (BY MR. MORIARTY) Thank you, Judge. Were you doing private-pay

and Medicaid -A. Q. A. Q. Yes, sir. -- clients at that time? Yes, sir. What percentage of Medicaid? Which percentage

private pay? MR. HECTOR CANALES: relevancy of this, your Honor. JUDGE EGAN: A. Overruled. Object to the

Probably about 30-40 percent private pay and

70 to 60 percent Medicaid. Q. (BY MR. MORIARTY) So, the 70 or the 60

percent that was Medicaid, about how many perspective new patients would you have come in in a year? MR. HECTOR CANALES: can ask for some clarification. Are we still -- if I What year or --

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MR. MORIARTY: Q. (BY MR. MORIARTY)

I'll -- I'll clarify. For the year 2010 -- and I'm

nobody's going to marry you to these numbers. looking for your best recollection. A. Q. Okay. Okay? For the year 2010 about how many

perspective Medicaid orthodontics patients came to your clinics? A. Meaning that we did not start treatment, they

just came in for examinations? JUDGE EGAN: Q. A. (BY MR. Yes. For -I just want to

MORIARTY)

Just came in for examination.

clarify that. THE WITNESS: JUDGE EGAN: A. Yes, ma'am. The entire body.

Probably we would get -- just Medicaid

population probably we would get about 2,000, 2500. JUDGE EGAN: THE WITNESS: JUDGE EGAN: THE WITNESS: Per month? No. Okay. Between the two -- two Per year?

Per year.

offices, I believe, yeah, two offices during that time. JUDGE EGAN: Q. (BY MR. MORIARTY) Thank you. Give me your range of --

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would it be no less than 2,000, no more than 3,000? MR. HECTOR CANALES: I'm going to object Just one

at this point in time, your Honor.

anticipation of what this guessing testimony's going to be used for that Mr. -- it's going to be some sort of calculation that's later going to be turned in and it's just improper. These are all guesses and I don't

believe it's proper testimony. JUDGE EGAN: Well, it's an estimation.

And he's already testified as to what the estimation was. MR. MORIARTY: Okay. And that's my

MR. HECTOR CANALES:

objection, your Honor, is to having him testify as to estimations. I don't think that is proper especially

when I think the plan is to use these estimations to use questions in the future. JUDGE EGAN: can raise your objection. MR. HECTOR CANALES: your Honor. Q. (BY MR. MORIARTY) Well, you were here when Okay. Thank you, When they get to there, you

Jack Stick testified that for the three years before -three years in question -A. Uh-huh.

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Q.

-- that we're looking at your records that you

guys turned in 6500 HLD forms claiming -- wanting payment for those patients? A. Q. A. Q. Yes, sir. Do you remember that testimony? Yes, sir. The question I have and that I think the Court

has is how many patients came to see you -- what was -what was the population of potential Medicaid orthodontics clients who actually came into your clinics that was then culled down to 6500 patients? MR. HECTOR CANALES: Object to -- I

need -- object to the question, your Honor, because I believe it's misleading in that it does not state any time periods. The testimony for -- for -- that Mr.

Stick gave, I believe, was a large range. JUDGE EGAN: You want a time period. I

don't recall what time period Mr. Stick's referring to. If you do, can you narrow it to that time period? Q. (BY MR. MORIARTY) Let me ask this question

like this. A.

Maybe we can get there this way.

Yes, sir. JUDGE SEITZMAN: Let me interrupt you for

a second.

If Mr. Moriarty doesn't get an answer, I'm

going to be asking the same question because that was

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the question we asked earlier is what is the total pool from which a segment was drawn from. MR. HECTOR CANALES: disrupt that, your Honor. And I'm not trying to I just want to

Understand.

make sure that we're dealing with the right time periods and that it's clear to the witness because I think we might be jumbling multiple years. understand the Court wants that information. JUDGE SEITZMAN: And I understand that And I

you're trying to get comparative time periods. MR. HECTOR CANALES: Q. (BY MR. MORIARTY) That's right.

Listen carefully,

Dr. Nazari. A. Q. I -- yes, sir. For the time period before the State showed up

for a record search -A. Q. Yes, sir. -- 2009-2010, what percentage of the potential

Medicaid orthodontics patients that actually came to your clinics seeking orthodontic services did you screen so this many didn't -- you sought to give services for and this many did not? And I'm just

looking for a ratio or a percentage or a sense of magnitude. A. Yes, sir, I understand that. Probably

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about -- we submitted probably -- I'm just guessing -about 70 percent. Q. A. 70 percent of the patient? 70 -- yes, sir. MR. HECTOR CANALES: Might I just have a

running objection to this entire line of estimating questions, your Honor? JUDGE EGAN: Yes. Thank you.

MR. HECTOR CANALES: Q. (BY MR. MORIARTY)

Your best sworn testimony

before this panel is that 70 percent of the Medicaid orthodontics patients that came to your door you submitted to Medicaid for payment -A. Q. A. Q. I believe --- for -I believe so, sir. Okay. And can we fairly surmise from these 63

cases that in virtually all of those cases you submitted claims for those 70 percent of people based on ectopic eruption? JUDGE EGAN: you don't know. A. Q. I don't know. I don't know. Okay. All right. If you don't know you can say

(BY MR. MORIARTY)

Let's go to -- let's go to that document I

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put in front of you, the records affidavit. A. Q. I didn't say. Now, how did you find out that the State was

out at your office seeking medical records? A. Q. A. Q. A. Q. I was called by the office manager. And that office manager would be Mr. Tardy? Yes, sir. William Tardy? Yes, sir. He's the gentleman who actually signed this

affidavit, this records affidavit that's in front of you, correct? A. Q. Yes, sir. And he was your office manager and the person

who was responsible for gathering up these medical records? A. Q. Yes, sir. And you wanted him to give all of the medical

records that were in your possession to the authorities as they requested, correct? A. Q. Yes, sir. Okay. Now, I'm not going to offer this

document into evidence because it's got the actual names of the patients on it; but what I would like to have you do is go to the second page and you see a

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client PCN that's down at the bottom that says -MR. MORIARTY: Judge? JUDGE EGAN: Q. (BY MR. MORIARTY) Yes, you can. I can simplify this, May I approach the witness,

Dr. Nazari. A. Q.

For this patient -- you see on the form?

Yes, sir. That patient, which we show as Patient Number

43, your office did not provide a dental mold, did it? A. Q. No, sir. And for Patient 13, your office did not

provide a dental mold, did it? A. No, sir. JUDGE EGAN: If you want to go with him It's up to you.

and stand to see, you're welcome to. MR. HECTOR CANALES: JUDGE EGAN: Okay.

I will, your Honor. We're at Patient 13

did not have a dental mold. MR. MORIARTY: Q. (BY MR. MORIARTY) Yes, ma'am. That's true. Patient 13

did not have a dental mold? A. Q. That's what this marking here. Well, the records affidavit that was signed by

William Tardy, your office manager, confirms that that patient did not -- you did not submit a mold for that

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patient, did you? A. Q. No, sir. Okay. Now, there's one that -- there's no

mold for the patient underneath that but let me represent to you that patient is not one of these 63. A. Q. A. Q. Okay. Okay? Yes, sir. So, go to the next page and we've got another

missing mold for this child but that child is not one of these 63 that's in question here. A. Q. Yes, sir. Okay. And the next child is Patient Number 32

and there's a missing mold in that case, correct? A. Q. A. Q. A. Q. A. Q. Yes, sir. And Patient Number 2, missing mold? Yes, sir. Patient Number 1, missing mold? Yes, sir. Patient Number 4, missing mold? Yes, sir. Three more patients missing mold, but they're So, they don't matter for this hearing. Yes, sir. Excuse me. Since you're

not in the 63. A. Okay.

JUDGE SEITZMAN:

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not over there, you're talking about the three that are grouped together before the very last one on that page? MR. MORIARTY: Q. (BY MR. MORIARTY) Yes, sir. And then none of those

three are part of the 63 in question? A. Q. Yes, sir. And then one underneath that's Patient Number

48, missing mold? A. Q. Yes, sir. Okay. And last page, Patient Number 45,

missing mold? A. Q. A. Q. Yes, sir. Okay. Now, you agree that --

You want me to keep this or you -I think that's all I've got, thank you, on

this one. Now, you agree -JUDGE EGAN: Hold on just a second. Just

wanted to make sure I got all of them. MR. MORIARTY: JUDGE SEITZMAN: to me. Q. 1, 4, 13. Judge Seitzman gave them

I know what's missing. (BY MR. MORIARTY) Okay. So -- and those

molds are required to be kept by Texas State Board rules and by the rules that you --

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A. Q. A. Q.

Yes, sir. Okay. And you didn't -- you didn't have them?

No, sir. Okay. They're all -- you acknowledge those

are all program violations, aren't they? A. I can -- I don't know. I don't know about It might be. Go ahead and

program violations entitled to. Q. finish. A. Q. Yeah. Okay. It might be, yes.

Well, you under- -- I'm sorry.

You understand you're obligated to know

the Medicaid rules and you're obligated to follow them and if you don't know what they are, you understand you're obligated to find out what they are? A. Q. Yes, sir. You're obligated to read this manual and

follow it, aren't you? A. Q. Yes, sir. And if you fail to do so, we have the right to

not pay you, don't we? A. I don't know that. I don't know if you're

obligated to do that or not. Q. A. Q. Okay. That's not my decision. All right. Now, we can go to these files if

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you want to and I'll be happy to. here.

We've got the files

But for Patient Number 22 and Patient Number 48, those records, the records we got from you do not show pre-treatment X rays, do they? A. I don't remember, sir. MR. MORIARTY: P22. Q. (BY MR. MORIARTY) Now, what I'm going to do All right. Let's go to

is I'm going to just rapidly go through page by page; and if you see pre-treatment X rays in there, I want you to tell me where we are. A. Q. A. Q. A. Yes, sir. And we'll start with 220001, 02, 03. I'm sorry. Go back. That's -- that up there -- no, not this one. Can you go back?

The one up top. JUDGE EGAN: A. The above one.

I -- that should be pre-treatment

cephalometrics. JUDGE EGAN: Q. (BY MR. I can't -That's one of the X rays

MORIARTY)

you're obligated. A. Yes. No. I'm saying one of them is up there.

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Q. A.

But you're obligated to have more than that? I understand, sir. I'm just trying to point

out to you that -Q. And this X ray, this panoramic view, that's

during treatment, isn't it? A. Q. file? A. Q. Can we -- can we go down? Yes, sir. 03, let's look at the date on that. this post treatment? A. Q. I believe so. Okay. So, this doesn't qualify. This is Is Yes, sir. So, you lack the pre-treatment X rays in this

Next -- next X -- next, 05. during treatment? A. Q.

You -- I don't believe you have it. Okay. So, we -- we're in agreement there's no

pre-treatment X ray for Patient 22, correct? A. Q. Yes, sir. Do you agree that there's no pre-treatment

X ray for Patient 48? A. At the time that you picked up -- at the time

that you picked up the records probably we did not turn it in. But that does not mean that it never existed.

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Q.

Sir, I can't possibly evaluate your conduct

with anything other than the evidence you turn over when we show up, right? MR. HECTOR CANALES: argumentative. A. Sidebar. Objection. It's

I don't know, sir. THE WITNESS: JUDGE EGAN: Go ahead. I'm sorry. It's been answered.

Q.

(BY MR. MORIARTY)

You don't have a

pre-treatment X ray for Patient 48, do you? A. Q. No, sir. Okay. Now, do you want to go through the six

no treatment card files particularly 02, 04, 05, 06, 07, 08? A. I'm sorry. I don't understand your question. Run those numbers by --

JUDGE EGAN: A. Q.

I didn't understand what you mean. (BY MR. MORIARTY) Patient 2, 4, 5, 6, 7, and

8, what's the -- what's the treatment card? A. Q. What does that mean? What are you asking?

You're asking what -- you're asking me what a

treatment card is? A. card? Yeah. What do you mean there is no treatment

I need to know who the patients are before I can

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answer. Q. All right. Let's look at Patient Number 2. Just for my clarification,

JUDGE EGAN:

Mr. Moriarty, when you say "treatment card," are you referring to what a layperson typically refers to as the clinical record where the doctor makes notations? MR. MORIARTY: JUDGE EGAN: Yes, ma'am. Okay. Your Honor, and we

MR. HECTOR CANALES: would object to that.

I don't believe that's one of

the areas that is listed in the complaint for a program violation. I could be wrong but I don't recall that. JUDGE EGAN: MR. MORIARTY: of service issue. JUDGE SEITZMAN: what you said. MR. MORIARTY: issue. JUDGE EGAN: The pleading from my It's a date of service I'm sorry. I didn't hear Give me a second. Judge, this would be a date

recollection, because I actually broke the pleading down, is that failed to keep records for the time required and other documents or models required by federal or state law or regulations or contract to be maintained -- that they're contracted to be maintained.

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So, that is Allegation 1. look at it. JUDGE SEITZMAN:

Let's take a

Is this -- is this the

one about the dates of service and failed to make the actual dates? MR. MORIARTY: JUDGE SEITZMAN: JUDGE EGAN: Yes, sir. Okay.

Overruled.

This is where you're -- it's here. MR. HECTOR CANALES: These are on

patients -- the first eight patients 2 through 8 or -MR. MORIARTY: Please excuse me. Patient 2, 4, 5, 6, 7, 8. MR. HECTOR CANALES: And the contention is No, it's -- I'm sorry.

that these treat -- these -- there's no records of treatment on these -- on those? JUDGE EGAN: MR. MORIARTY: issue. MR. HECTOR CANALES: JUDGE SEITZMAN: because I didn't get -MR. MORIARTY: JUDGE SEITZMAN: Yes, sir. I got 4, 5, 6, 7, 8. Okay. All right. Is 6 in there The service dates. It's a date of service

I'm sorry.

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

6 is. Okay. Let's go to Patient

2, Page 1. there? A. Q. A. Q. A. Q. A.

There's no date of service on this form, is

No date of service, yes, sir. Page 2, is there a date of service here? I don't see one. Page 3? There are different dates there. I'm sorry? There were different dates there and that's This is the

the date shipped right there 4/1/09.

laboratory slip that we sent for the study models 4/1/09. Q. you off. A. I'm sorry. Go ahead. No. That's the date they're going to be Excuse me. I didn't mean to cut

shipped, study models 4/1/09 to the Genesis Orthodontic Laboratory. Q. All right. But that's one of the services but

that's only one of the services that you billed the State for on this child, correct? A. Q. A. I understand your question, yes, sir. Okay. Page 4, no date of service there? I mean, there's

Well, you have erase there.

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the date right there under Antoine Dental. should be a date. date on there. Q.

There

The computer automatically puts the

Doctor, I'm looking for the dates where you

allegedly treated this child. A. Well, I'm sorry, sir. You are showing me the

wrong documents. Q.

You need to go to the progress notes. I

We're going -- we're going to get there.

just -- I want to eliminate -A. That's the reason there's a date there. Yes, there is a date there. Q. All right. Okay. Let's go to progress notes. Next.

We've gone through the record and

we have no documents in that file to show when you provided treatment for that child. A. sir. Q. Okay. So, we don't have a complete and a True?

Based on these documents that you have, yes,

thorough medical record for that child justifying the treatment that you rendered for that child, correct? A. Q. Based on what you have, yes, sir. Okay. Do you want to concede the same thing

is true for 4, 5, 6, 7 and 8 or do you want to go through them? A. If you don't mind.

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MR. MORIARTY: JUDGE EGAN:

All right.

Let's go to 4.

And for the record, we're

going through each page in the file of these patients? Q. (BY MR. MORIARTY) All right. We've gone

through -- for Patient 4 we've gone through Petitioner's 04 through 0007. Do you concede that

there's no date of treatment record for Patient 4? A. Q. Based on what I see on the screen, no, sir. Well, but what you see on the screen's your

file that we got from you, right? A. Q. I believe so. And you agreed that it's lacking dates of

treatment, correct? A. Q. Yes, sir. Okay. Patient -- we're at 5. Let's go

through 5. right? A. Q. A. Q.

Same thing, no -- no date of treatment,

No, sir. Okay. Please. Okay. MR. MORIARTY: Let's go through it, Stace. Okay. We got the same Going to go to 6?

Q.

(BY MR.

MORIARTY)

problem on 6, right? A. It seems like it, yes, sir, based on what you

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have. Q. All right. We've got no proof of when you

treated that child, correct? A. It doesn't look like it on this -- on this

screen, no. Q. Well, I want the record to be clear. Your

files that we got that I've showed you don't have the date of service of that child that you billed the State for, true? A. Q. Yes, sir. And you're obligated to provide that

information to the State and it's got to be true and accurate and correct, right? A. Q. A. Q. Yes, sir. Okay. And you didn't do that, did you?

No, sir. Okay. MR. MORIARTY: Let's go to 7, Patient 7. Okay. We've gone through You have no

Q.

(BY MR.

MORIARTY)

all the records on Patient Number 7.

progress notes showing date of service on that file either, do you? A. Q. A. No, sir. You want to go through 8? Please.

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Q.

Okay.

We've gone through all of the -- all of

your patient file for the file you've provided the State for Patient Number 8 and there's no progress notes in that file, correct? A. Q. Yes, sir. Okay. So, do you now concede that for Patient

2, 4, 5, 6, 7, and 8 those files are not full, complete and accurate as you are required to keep, correct? A. Q. Yes, sir. Okay. Now, let's -- we've got three children

that you treated that were under 12, Patient 15, Patient 56 and Patient 60. You know that you treated

and billed for three children under 12, correct? A. Q. I -- can we go through them, please? Sure. JUDGE EGAN: MR. MORIARTY: Q. (BY MR. MORIARTY) Patient 15? 15, 56 and 60. Now, I think -- and I want

you to bear with me on this -- these records are redacted, which means we've taken all of the patient identifying information off of the records. Now, we

have the original records here in the courtroom, your original records, which you're happy to go through, if you want to. But let me tell you that these records

that we've got up there are redacted.

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Do you admit that you submitted bills to the State of Texas for three children who were under the age of 12 who you were not allowed to treat for full orthodontic services? A. Q. A. Q. No, sir. All right. Need to look at the records. Then what I ask you to do is while we're at a Do you concede that?

break, you go through those -- find those three files and you verify that what I'm asserting to the Court is true that you got three children, Patient 15, Patient 55 and Patient 60. And those three files, your

original files, will show those -- those three were under age 12. A. Q. Okay, sir. Now, you actually have the right to request an There are

exemption to THMP to treat a child under 12.

some children under 12 that are appropriate for treatment; isn't that true? A. Q. Yes, sir. And all you have to do is ask for an

exemption -- exemption for that child, correct? A. Q. A. Yes, sir. And you didn't ask for that, did you? I need to look at the records, sir. I don't

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know. Q. A. Pardon me? I need to look at the records. I don't

remember if I did or not. Q. All right. Now, let's go to Patient 23. What

is an extraction request? A. Q. You mean in here? I want -- I want you to tell me -- tell the

judges what an extraction request is. A. If we do it within the office, if we do it in These are

the office, we write on the -- in the notes.

the treatment card that you were asking me or we call it progress notes. We write it in here. If we have to

send it to a specialty out of the office, then we have a referral note that, you know, it has the Antoine Dental Center logo and then our phone number and everything. And then we give it to -- you know, we We refer to oral surgeon. So,

send it to the oral surgeon. JUDGE EGAN:

I can barely see that.

can you highlight where the word -- the words are -Q. (BY MR. MORIARTY) There's nothing on this --

this form, in fact, there's nothing in this file, to indicate you may -- you had a proper extraction request, correct? A. I cannot see, sir. You talking about --

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JUDGE EGAN:

She's going to enlarge --

looks like she's trying to enlarge it. A. It's right in here. Braces on five to five,

need to extract upper -JUDGE SEITZMAN: Doctor. THE WITNESS: I'm sorry. Pull the microphone to From there you Okay. Hang on. Hang on,

JUDGE SEITZMAN:

your left where your water bottle is. can talk. A. Okay.

Right here it says braces on five to

five means the upper teeth and lower teeth starting from the molars need to extract upper fours and expose upper fives. Q. (BY MR. MORIARTY) Are you required to have an

extraction request as part of the file? A. know. Q. Within the office, I don't think so. I don't think so. Okay. I'm trying -- I need some clarity on I don't

that question. Are you or are you not required to have within your file a proper extraction request? no. A. Q. No, sir. Okay. I'm going to ask at the break to look Yes or

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at 15, 56 and 60. Now, let's switch to another couple of areas. JUDGE EGAN: you -JUDGE SEITZMAN: at this point in the record. I just want to be clear When we're talking about Hold on just a second. Did

"extraction request," we're talking about extraction of a tooth? MR. MORIARTY: JUDGE SEITZMAN: Yes, sir. And that's what you

understood, Dr. Nazari, talking about extraction -THE WITNESS: Yes, sir. -- of a tooth?

JUDGE SEITZMAN: THE WITNESS: Q. A. Q. (BY MR. MORIARTY) No, sir.

Yes, sir. You're not an orthodontist?

When did you decide to get into the

orthodontics business? A. I graduated in 1998 and in 1999 or 2000 I

started taking some continuing -- continuing education courses. Q. My question, sir, is: When did you decide to

get into the Medicaid orthodontics business? A. Oh, Medicaid orthodontics I think it was

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around late 2002-2003. Q. A. Q. A. Q. A. And why did you decide to do so? Into Medicaid? Yes. Medicaid or -Yes. -- in general? I don't know. orthodontics. Q. Now, you represented to the Court a little bit I just like doing ortho- --

earlier that about 30 percent of your practice in the past, say 2010 or 2011, was private pay. A. Q. Uh-huh. And 60 or 70 percent of your practice was

Medicaid; is that correct? A. Q. I believe so. And you were signing up and submitting

something over a thousand a year Medicaid patients, correct? A. sir. Q. All right. And you're doing purely In the past few years that you mentioned, yes,

private-pay patients today? A. Yes, sir. Well, no. No. I take it back. I

still see my Medicaid patients.

We have -- you know,

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I'm not getting paid because they have nowhere to go. Q. A. Q. Okay. I still see those patients. And for your private-pay orthodontics

patients, how many new private-pay orthodontics patients have you signed up in the last 60 days? A. In the last 60 days? Probably about hundred,

120 between the two offices. Q. A. Maybe two a day? Well, if you're going to divide it by 30 days

a month, which, you know, we are closed on Sundays and -- however you want to average it, I'll take it. Q. All right. Do you know what an ectopic

eruption is? A. Q. Yes, sir. Now, do you agree with the proposition that

whatever an ectopic eruption is the -- 70 percent of the patients that had it that came to you -- Medicaid patients came to you, whatever condition they had, it certainly wasn't unusual, was it? A. Q. A. Wasn't unusual? Yes, sir. In what term? What do you mean by unusual?

Unusual being irregular and being abnormal, yes, they were unusual.

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Q. A.

What does unusual mean to you? Which is not -- something that is abnormal,

which is not supposed to be there, not regular. JUDGE EGAN: this. Okay. I'm getting lost in

So, can you just speak a little slower and ask

your question and both -- both of you wait until the other finishes? Q. (BY MR. MORIARTY) The usual condition of the

Medicaid patients that presented themselves in your office, the usual condition was whatever it is you now call ectopic eruptions; isn't that true? A. It's not what I call ectopic eruption. It's

what I was taught which is what I learned from the manual and from the NHIC how to evaluate ectopic eruption. Q. My point, sir, is this: There wasn't anything

unusual -- about whatever condition that was, it wasn't unusual. In fact, it existed in every single one of

these 63 patients, correct? A. It was unusual, sir. MR. MORIARTY: break? May we take a little short

I think I'm about done. JUDGE EGAN: Why don't you pull those

files while we take a break and let him look through them.

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MR. MORIARTY: good. JUDGE EGAN: break.

Yes, ma'am.

That'll be

And we'll take a 10-minute

We'll be back at a quarter after 10:00. (Off the record) JUDGE EGAN: We're convening in SOAH

Docket Number 529-13-0997 and it is 10:23 a.m. And you may proceed. MR. MORIARTY: Q. (BY MR. MORIARTY) Thank you, your Honor. Now, Dr. Nazari, during

the break have you had the opportunity to review your patient files? A. Q. Yes, sir, I did. And have I correctly asserted to the Court

that on Patient 15, Patient 56 and Patient 60, all three of those children were under 12 when you treated them? A. Q. Yes, sir. And you did not request an exemption from the

State for treating those children, did you? A. On -JUDGE EGAN: closer or -MR. MORIARTY: Sorry. Well, somebody moved it. You need to move the mic

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Q.

(BY MR. MORIARTY)

You did not -- you did not

comply with Medicaid rules when you submitted those cases, did you? A. I -- I disagree. The first -- first patient,

Patient Number 15, ****** *****. JUDGE EGAN: redact. THE WITNESS: JUDGE EGAN: Patient Number 15. JUDGE SEITZMAN: Excuse me. I'm sorry. I'm sorry. Don't use names. Please

We just refer to them as

And, Stephanie, will you strike that from the record? Thank you. A. Patient Number 15, can we put her pictures on

the screen, please. Q. (BY MR. MORIARTY) Sir, my question is: Was

she under 12 when you treated her? A. Q. A. He was under 12. He was under 12? He was born January 1, 2008. The rules

allowed us to do this and this is the same case even Dr. Tadlock approve for braces; and if Dr. Tadlock is the director and the director of business tells me this patient needs braces and I send the request and he

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approves it, I don't see what I did wrong. Q. All right. So, if I understand what you're

saying, what you're telling the Court is even though the Medicaid rules forbid you to treat a child under 12 without requesting an exemption from that rule, the fact that they paid it proves to you it was valid? MR. HECTOR CANALES: his testimony. JUDGE EGAN: I believe it does misstate Objection. Misstates

his testimony, but it's cross. That's not what you said, you're free to say, "That's not what I said." A. Yeah. That's not what I said, sir.

I said I asked for -- I submitted all the documents. I submitted the HLD. I submitted the

request form.

I submitted the pictures, all the The TMHP director, the expert

necessary X rays.

witness that Dr. Tadlock is in this case also they both -- all three of us agree this patient needs braces. So, what I don't see what I did wrong when everybody approves that this patient needs braces and then you come in with this clause that, you know, because of under age 12. January, 2008. That rule was not enforced in

September or August of 2008 we had to

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certify that all the primary had been extracted. Q. A. All right. How about Patient 56 and 60?

Yes, sir, just one second, please. JUDGE EGAN: Okay. Let me just make sure Patient 15 was

I understand what you just said. treated in what year? THE WITNESS: JUDGE EGAN:

January of 2008. And at that time it's your

understanding that you were not required to -THE WITNESS: JUDGE EGAN: 12 or older? THE WITNESS: changed the forms from -JUDGE EGAN: THE WITNESS: JUDGE EGAN: THE WITNESS: THE COURT: A. Q. A. I'm sorry. I just needed that -Yes, ma'am. -- that clarification. Yes, ma'am. Go ahead. Yes, ma'am, because they To certify, yes, ma'am. -- to certify that they were

What was the next patient? Patient 56. How

(BY MR. MORIARTY)

Oh, these are different numbers, like 9.

can I identify before calling the name? sure. Q. All right.

I want to make

Hang on just a second and I'll

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help you. MR. MORIARTY: JUDGE EGAN: Find me the name -If you put the picture up, I

bet he can match the picture. MR. MORIARTY: Okay. We can do that.

Let's go to 56-0004, please. JUDGE EGAN: Q. child? MS. EGAN: If you look at the picture, you (BY MR. MORIARTY) All right. Do you recognize that

can make sure you get the right file. JUDGE SEITZMAN: JUDGE EGAN: Look for the pictures --

Look for that. -- in the file.

JUDGE SEITZMAN: THE WITNESS: A. Okay. I got it.

I look at the pictures?

JUDGE EGAN: 56; is that correct? THE WITNESS: MR. MORIARTY: JUDGE EGAN: file for Patient 56? THE WITNESS: JUDGE EGAN: A. Yes.

Okay.

So, this is Patient

Yes. Yes, ma'am. Okay. And you now have the

Yes. All right. Proceed.

We did the request and we did indicate

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on the form that the patient still has three primary teeth. It's in the form. The documented in here

patient has three primary teeth. Q. (BY MR. MORIARTY) Hang on a second and I'll

help you. A. Yes, sir. MR. MORIARTY: goes to the State. Stacey, go to the form that Okay. Go to

Back, back, back.

two, three, four, five, six, seven, eight, nine, ten, eleven, twelve, thirteen, fourteen. Q. (BY MR. MORIARTY) You're saying that the form

that's P00- -A. Right here it says, I certify all primary We crossed it out. We

dentition has been exfoliated.

put still has one -- circle on top -- has primary teeth. Q. please. A. Q. All right. How about let's go to Patient 60,

And would you review that file? Yes, sir, I have done that. And do you have an explanation or

justification for treating that child? A. Yes, sir. On the -- both forms on the HLD I mention that patient has three primary teeth and then on the certification I did not mark it. I did not certify

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that. Q. All right. And did you look at Patient 23 and

Patient 50 with regard to the extraction issue? A. Q. No. I was not provided with the records. We'll -- we'll -You

All right.

Let me ask you another question now. were talking just a moment ago about Dr. Tadlock agreeing that the child under 12 needed braces.

Isn't

it true that your expert, Dr. Ornish, concluded that Patient Number 1, Patient Number 3, Patient Number 12, Patient Number 17, Patient Number 22, Patient Number 30, 34, 46, 53, 54, 57 and 59 did not qualify as having a severe handicapping malocclusion as scored on the HLD index? A. True? I believe so. I don't remember all those I don't -- I don't know.

numbers that you mentioned. Q.

Let me represent to you, sir, that your

expert's reports that are in evidence show that Patient 1, 3, 12, 17, 22, 30, 34, 46, 53, 54, 57, 59 do not qualify in his expert opinion. MR. HECTOR CANALES: question, your Honor. I object to the

The witness has testified that

he does not -- he does not know, lacks foundation. JUDGE EGAN: Overruled.

You can -- if you don't know, you can

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state you don't know. A. Yeah. I just don't know by the numbers that, He might have, you

you know, which are the patients. know -- you have his report. JUDGE SEITZMAN: actually.

I didn't get a question

I just got a representation from

Mr. Moriarty that's what the report said but I didn't have a question following that representation. MR. MORIARTY: Judge. Q. (BY MR. MORIARTY) You know your own expert All right. I accept that,

found 13 of these cases unqualified? A. Q. A. 13? 13. 13 of them? JUDGE EGAN: Q. correct. A. Q. (BY MR. MORIARTY) 12. Does it include the interceptive patients? I don't know. The record will reflect that. Do you acknowledge If you don't know -I'm sorry, sir. You're

My question is this:

that your own expert found 12 of your cases did not qualify? A. Q. I don't agree with that, no, sir. Okay. What do you disagree with?

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A.

Well, because you making it very, very broad Orthodontics can be many different things. Couple of them Couple

assumption.

Couple of them are comprehensive.

are -- I mean, most of them are comprehensive. of them are interceptive.

I need to see, you know, if

Dr. Ornish actually has those interceptive also part of that because interceptive do not need to be 26 points. Q. Well, so, to help the judges, I'll let -So, they'll be

Dr. Ornish's reports are in evidence. able to check which ones.

I just want know whether you

disagree that he found 12 of them didn't qualify? A. Q. correct? A. Q. A. Q. Yes, sir. And you're not? No, I'm not. Okay. You have no special training in I disagree, yes, sir. Okay. And he's a -- he's an orthodontist,

orthodontics? A. Q. A. Q. A. Q. No, sir. You're a general dentist? Yes, sir. You have no postgraduate work in orthodontics? No, sir. All right.

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MR. MORIARTY: Honor.

I pass the witness, your

CROSS-EXAMINATION BY MR. HECTOR CANALES: Q. Dr. Nazari, what is your understanding of

the -- of whether or not there are exceptions to qualifying for Medicaid orthodontic treatment, other than the scoring? A. What's your understanding, sir?

The whole understanding -- the whole HLD, if I It's a

may explain it, is -- is a screening. screening.

It's a dia- -- it's not a diagnostic tool. It's an index that if a patient But there are

It's just a screening.

qualifies for Medicaid programs.

patients that they truly need orthodontics and then based on my understanding you can even send it -- those patients that they -- even -- even in the manual, it does state that. If you cannot achieve the point -- 26

points, send a narrative for this patients to be -- you know, to be considered. That all those patients that

we have sending to -- we got the score of 26, they were all being rejected. So, there are always exceptions.

There are rules published but it's up to the director of the Texas Medicaid Health Partnership whether they want to approve it or not. same way with NHIC. It was the

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I as a clinician have obligation to my patients. They come through the door. If they need If they

braces, I'm going to submit it to them.

don't -- if they don't want to pay for it, it's up to the state say no. I did not -- all these HLDs they're

all completed the way that I was trained more than ten years ago. Q. Doctor: Let me -- let me ask -- let me ask you this, Is it consistent with your understanding of

the HLD scoring process and the approval process that scores under 26 may be approved for Medicaid treatment under certain circumstances? A. Q. Yes, sir. All right. What are those circumstances where

a score of under 26 would still qualify for treatment? A. One of the examples is an interceptive that

does not need to have any scores. Q. A. Q. A. And could you -Interceptive mean -What is interceptive treatments? Interceptive means limited orthodontics.

Whenever you see a problem -- for example, there are patients that they suck on their thumb that they develop this open bite habit. part of the interceptive. You can -- that can be

If you can take molds, you

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can take records, send it to the TMHP and then they look at it. do the work. And if they approve it, they will let me I will do the work. If they said they --

"We don't want to pay for it," they don't want to pay for it. parents. So, I don't do the work and I inform the And at the same time the parents send a

letter, too, that, yes, it's been approved or it's been rejected. That's one of the examples. Q. A. Okay. The second example is a true, true -- like a I'm sorry.

medical conditions that you -- these people need braces. Now, what do we mean by the true medical I want you to understand we're dentists.

conditions?

We are not here to do heart transplant or brain surgeries or whatever. saving teeth. So, if there is a problem in the back teeth -- that was one of my biggest criticism of the -of the HLD to Dr. Altenhoff many, many times that we concentrate only on the children on the front teeth and many of the problems on the back are being undiagnosed and we send it to them. We write narratives. They We are in the business of

keep denying and denying and denying. JUDGE EGAN: Okay. Hold on.

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MR. MORIARTY: JUDGE EGAN: until -Q.

Nonresponsive. All right. You need to wait

(BY MR. HECTOR CANALES)

Let's back up a

little bit. A. Q. Okay. Let's go back. JUDGE EGAN: Q. Sustained. Let's go back to

(BY MR. HECTOR CANALES)

interceptive treatment.

What is cross-bite and does it

have anything to do with interceptive treatment? A. Okay. Interceptive is a broad term. It can be many things. It's a

broad term. know --

It can be, you

JUDGE EGAN:

Okay.

He's just asked you is

cross-bite an interceptive treatment or is it condition? A. Yes, it can be. JUDGE EGAN: Q. Yes, yes, it can be. Okay. And so, explain

(BY MR. HECTOR CANALES)

how -- do you have a -- and do you have an understanding of whether or not cross-bite is an exception to the 26-point requirement? A. Q. Yes, sir, it is. All right. And so, could you -- could you

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explain how was cross-bite scored within the HLD, if at all? A. Well, there is no indication on the HLD index There is no on- --

form that you need to submit it.

when you go through that page with all the tables, there is no place to put the cross-bite. Because of

cross-bite we are -- you know, we are submitting that. It even says that on the severe traumatic occlusion on the second line -- on the second line it says that, you know, do not include cross-bite, traumatic. So, even for the cross-bite you don't need to offer any HLD. Q. Okay. Now, what is mix dentition and how is

it significant to the approval process? JUDGE EGAN: What was the first word? Mixed. Mixed dentition and

JUDGE SEITZMAN:

MR. HECTOR CANALES:

how was that significant to you in these 63 patients at issue here, sir? A. Mixed dentition is a -- is a time period of a

child that has four -- four -- about four and four in the lower would be eight front teeth and then four of the back molars and at the same time has some baby teeth between. Q. Okay? All right. Let me --

(BY MR. HECTOR CANALES)

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A. Q. A. Q.

That's a mixed dentition.

And then --

Let me stop you there real quick. Okay. Let me stop you there. You were just asked about Patients 15, 56

and 60.

Those were the patients that you reviewed over

the break, right? A. Q. Yes, sir. Okay. And on -- 56 was part of your answer --

your explanation as to why that patient qualified, did it involve this concept of mixed dentition? A. Q. Yes, sir, it did. And what is your understanding of whether

mixed dentition is what -- in terms of an exception to the 26-point requirement? A. No. It doesn't mean that you -- on the -- on

the 26 point it doesn't need to have the 26 point but, you know, patients with a mixed dentition that they truly need braces, you can still submit if you have 26 points. Q. Does it have -- does it -- excuse me. Does it have an impact on the -- on the re- -- on the age requirement for Medicaid treatment, that meaning mixed dentition? A. No, it doesn't have an impact.

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JUDGE EGAN: THE WITNESS: impact. Q.

I'm sorry. No, it doesn't have an

(BY MR. HECTOR CANALES)

Okay.

If you have --

is it -- is it true, sir, that if you have mixed dentition that that is a part of the qualifying -qualifications determination that -- that you make? A. Q. Yes, sir. All right. And is mixed dentition part of

your -- the basis for your opinions that Patients 56 and 60 qualify? A. Q. Yes, sir. All right. And you stand by that -- stand by

that today towards to Patients 56 and 60? A. Q. Yes, sir. Okay. And Patient 15, was that also a case of

mixed dentition? A. Q. Yes, sir, it was a case of mixed dentition. Now, you were also asked a series of questions

about Patients 2, 4, 5, 6, 7 and 8 regarding treatment. A. Q. Do you recall that?

Yes, sir. All right. Now, could you explain -- you

weren't asked why those patients didn't receive treatment. Would you, please, explain why?

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A.

Well, the patients came to the office.

We

examined them and then, based on our evaluation of the HLD index and the diagnosis that we made, we made the determination that, you know, they need -- they qualify. That -- that was our understanding. We send

it to TMHP director.

He approved the cases but those

eight -- seven or eight patients that you just mentioned, they never came back to receive braces. Q. Now, how long have you been a Medicaid

provider? A. 1998. Q. And is it -- has it been your experience since About -- Medicaid provider I believe since

1998 within the Medicaid provider area that sometimes patients don't come back? A. Well, not only Medicaid patients, you know,

the cash patients, certain private patients, they don't come back and it is beyond my control. Q. And is -- is that, sir, what happened with They didn't

these particular six patients here? return? A. Yes.

They did not return and we did not bill They

for the full banding, which is the full ADAD.

gave us the authorization to bill for the -- just the records to do that and then they gave us authorization

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to bill for the records.

That's all we did.

And also

there is another statement or a rule, even if you have cases denied, you can get paid for two out of every ten cases that's been denied. Q. Okay. Okay. So -- so, is it possibly, sir,

for you to have a treatment card or a history record of a patient that didn't return? A. Q. Not orthodontic, no. Okay. All right. Now, you were also asked

about -- I want to go to the time period in November of 2011 through April the 4th of 2012. A. Q. Yes, sir. All right. Now, what happened in November of Okay?

2011 at your office? A. We had some friendly guests came in and then

they just took over the office and we have to provide them with the -- with the records that they were asking for. Q. And then -That was when OIG came and got your records

they requested? A. Yes. OIG came and we tried to do that. JUDGE SEITZMAN: counsel finish his question. THE WITNESS: Sorry. Because the court Just be sure and let your

JUDGE SEITZMAN:

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reporter can't take both of you talking at the same time. THE WITNESS: Q. Yes, sir. Were you being

(BY MR. HECTOR CANALES)

sarcastic, sir, about the "friendly" part? A. Q. Yes. I'm sorry, sir.

Now, the other end of the timeline, April the

4th, 2012, why is that a significant date? A. That's the date that I was put on 100 percent

payment hold. Q. Okay. All right. So, let's talk about your

practice between that -- those periods of time and -and -- with Medicaid. A. Q. Yes, sir. Now, did the effect -- did the fact that OIG Okay?

came in and requesting all these records did that have an impact, sir, on your -- on you and your attitude towards being an active Medicaid provider? A. Q. No, sir, not at all. All right. MR. HECTOR CANALES: at, Roy, I believe it's P78. Q. (BY MR. HECTOR CANALES) While -- while Roy's Now, if we could look

pulling that up, during your time as a Medicaid provider, what efforts could you describe to the

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Court -MR. HECTOR CANALES: Q. (BY MR. HECTOR CANALES) 78.01. Did you make efforts

during these -- this decade of Medicaid providing service to keep up with the program, its rules and methods? A. Q. Yes, sir, I did. Could you describe to the Court what you did

to continue your education and keep up to date with -with Medicaid and its -- and what it required of you? A. Well, as far as the continuing education it's But

something that, you know, we conduct on our own. as far as being -JUDGE EGAN: A. Slow down, please.

As far as continuing education, it's something And as far as,

that, you know, we conduct on our own.

you know, keeping up with the Medicaid, we always received paper copies when NHIC was in charge; and after that when there was a transition to TMHP, we had the paper copy. And then they switched also to online

or with an electronic version. JUDGE EGAN: THE WITNESS: and the messages. A. And also the actual manual. And in the past Paper copy of what? Paper copy of the bulletins

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few years they don't provide the paper copy manual. They just send us the CDs, the CD-ROMS. Q. (BY MR. HECTOR CANALES) And are you familiar,

sir, with what a stakeholder meeting is? A. Q. Yes, sir. All right. And did you -- how did you become

familiar with stakeholder meetings? A. Well, I knew about it through the -- reading

through the bulletins and then first time that I attended I think it was back in 2008-2009. mention about orthodontic changes. Q. And why did -- why did you attend those There was

stakeholder meetings? A. To be up to date with the rules and

regulations and also with the benefit changes. Q. held? A. Q. Every three months, I believe. And -- and what was your -- how -- did you How often were those stakeholder meetings

have a habit in terms of attending or not attending them? A. Q. I tried to attend as many as I could. All right. Now, we have up on the screen

P78.01 -- 001.

And if I could draw your attention to

the middle paragraph there where it begins "prior

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authorizations." A. Q. Yes, sir. All right. Could you read, sir, that first

sentence up there? A. "Prior authorization: Requests from January

1st, 2012, to February 29th, 2012, prior authorizations for most orthodontic services will be suspended." Q. And was that consistent with what happened in

your practice, sir? A. Q. A. Q. Yes, sir. Okay. Throughout Texas, the state of Texas. All right. And so, you did not receive from

January 1st, 2012, through February 29th, 2012, any authorizations from the State of Texas, correct? A. Not only I did not receive, we did not submit

anything because they did not want us to submit anything. Q. A. That was your understanding? That was what it was mentioned at the Do not submit anything because

stakeholder meeting.

TMHP they have funded -- there was problem with TMHP. Q. Okay. And that was -- that was -- I want to

make sure.

That was information you learned at a

stakeholder meeting?

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A. Q.

Yes, sir. All right. Now, from -- from the month of --

for the month of March leading up to April the 4th of your -- where your payment hold came in, you testified about your experience with a -- with one of these managed care organizations? A. Q. Yes, sir. Correct? All right. And would you explain how --

that managed care organization how that affected the Medicaid submission and pre-authorization during that month? A. Q. Immediately -You stated -- I think you stated mass

confusion. A. Q. A. Yes. That's what I was gonna --

And I was wanting you to explain that better. Yes. Mass -- yeah. It was mass confusion

throughout the whole dentistry, not only dentistry is medical also. DMA companies came in and each one of Like they

them had their own specific standards.

were -- in dentistry I knew about I can tell, again, MCNA, Dental Quest and Delta Dental they took over. And we did not know what's going to happen to our orthodontic patients, who's going to be taking over

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these patients. So, that will be very irresponsible of me to start any cases to submit to anybody that that I'm going to start this case and then just let them go with braces because many of these patients they had no provider. They did not assign provider to them for From deadline of March 31st, I I

months and months.

believe, they pushed it back another six months.

cannot, you know, swear to that but they keep pushing back all these dates and it was mass confusion. How could I undertake more responsibility with these patients? I just didn't do it. And, plus,

immediately I received a letter -- after 15 years working for Medicaid MCNA came to me -JUDGE EGAN: MR. MORIARTY: JUDGE EGAN: the next question. Go ahead. A. Q. I'm sorry. I thought I was answering you. All right. As a Hold on. Nonresponsive. Okay. You need to wait until

(BY MR. HECTOR CANALES)

result of the -- of the confusion, did you limit your -- your acceptance or your -- the processing of claims? A. Not only we limit it, we just limit it for

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that time period until we could sort out what's going to happen to our existing patients. Q. Because you were concerned about whether or

not the patients that you had whether they would remain with you or they would be reassigned because of the change in the -- in the system? A. Q. Yes, sir. Okay. Now, what about -- what happened,

Dr. Nazari, to the patients -- and then, of course, April the 4th the payment hold comes, right? A. Q. Yes, sir. All right. And so -- but when -- on April the

4th, did you still have patients that had been pre-authorized prior to April the 4th? A. Q. Yes. Do you -- can you give us any estimation, sir,

of how many patients were -- had been pre-authorized and that were affected by this payment hold? A. Close to 2,000, probably more than 2,000, 2500

patients. Q. Okay. And to make sure I understand, you had

between 2,000 and 2500 patients that were somewhere in the process of -- of the -- of the orthodontic treatment that TMHP had approved, right? A. Yes, sir.

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Q.

Okay.

And the payment hold notice, what did

you understand would happen to any reimbursement that you were to receive for what was remaining on the -- on these 2,000 to 2500 peoples' treatment? A. Q. work? Well, they stopped paying us, basically. What happened -- and well, what about the What -- what did you -- even though you were not

going to be paid, what happened to the patients and the treatment? A. Well, I treated my patients. I still do.

After 14 months I still treat them. Q. So, during this -- during -- from the April

the 4th, 2012, until today, all the patients that were being treated prior to the payment hold, you've continued to treat them? A. Q. Yes, sir. Have you continued to incur operational costs

for your practice for all those 2,000 or so patients? A. Q. A. Q. the 4th? A. Q. We keep a record of the billing. Have you billed for it, sir? Have you sent in Yes, sir. Have you continued to have payroll? Yes, sir. Have you billed for those services after April

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a bill to TMHP for us? A. Yes. We're sending the bills. We are sending

the bills but we are not getting paid. Q. Now -- going through my notes here -- you were

shown, I believe, four patient files, 44, 48, 53 and 51 and the issue was the HLD score sheet. that? A. Q. Yes, sir. Did you submit any of the 63 cases that are You recall

here -- back up one step. Since this investigation and payment hold on you has started, have you spent time reviewing the patient files -- the 63 files at issue in this case? A. Q. I have them, yes. How much time have you spent looking and

preparing for -- for this investigation? A. Q. A. Personally? Yes, sir. At least four or five hours a week, at least,

going through the charts and trying to find out what I did wrong. Q. Okay. And so, you've become familiar with

those 63 files, correct? A. Q. Yes, sir. All right. And -- and, sir, can you -- based

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on that review, can you tell the Court whether or not there were any instances within those 63 where an HLD form was not submitted or -- to TMHP? A. Q. No. They were all submitted to TMHP. Has it been your experience, sir,

All right.

at any point in time through your decade or so that TMHP or whoever was the intermediary would approve a score without the submission of an HLD sheet? A. Q. No. Now, you were present for the testimony of

Mr. Stick, right? A. Q. Yes, sir. All right. And did you hear the testimony of

Mr. Stick where he said that TMHP or the intermediary had breached its responsibility to -- to review HLD score sheets? A. Q. Yes, sir. All right. At any point in time during the --

prior to the submission of the HLD score sheets in these 63 cases, did you know that? A. Q. I had no idea. I had no idea.

Was there ever any -- did Texas Medicaid

bull- -- ever any information that you're aware of ever posted in a Medicaid bulletin that TMHP is -- is absent or not doing a good job?

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A. Q.

Never. Is it -- did Medicaid, the manual, put any

responsibility on you, sir, to make sure that TMHP was providing whatever service it had agreed to provide to the State? A. Never. There was -- the only entity that we You pick up the You talking I thought they

ever dealt with was TMHP since 2004. phone. to TMHP.

You think you calling the State. They have a dental director.

have a dental director.

That's what my understanding, I -- I did not think Nobody knew.

and there are dentists under him. that, you know, this was going on. Q.

Did you regard, sir, TMHP -- or -- and the

State as one and the same? A. Q. A. Q. I did. Everybody does.

All right. It says healthcare partnership. I'd like to go over with you some of the

patient files regarding your scoring and the issue of ectopic eruption. A. Yes, sir. MR. HECTOR CANALES: up -Q. (BY MR. HECTOR CANALES) Before I do that, If we could pull Okay?

sir, let's -- let's do a little bit about your

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educational background -A. Q. Okay? Could you please tell the Court about your educational background? A. I received a pharmacy degree from Texas Yes, sir. -- and -- and your professional experience.

Southern University in Houston back in 1991 and in 1994 I grad- -- I -- I was admitted to University of Texas Houston branch, dental branch for -- in the dental program. I graduated in 1998 from the Houston --

Houston dental and starting since -- immediately I started doing continuing education courses in all kinds of disciplines in dentistry. I have over 750

continuing education hours in orthodontics and occlusion and another 700 hours in cosmetic restorative, implant. Q. And -- and with your -- how long -- has your

practice exclusively been in the Houston area? A. Q. Yes, sir. All right. And are you currently licensed

right now? A. Q. Yes, sir. All right. And how long have you maintained

that license?

When'd you first get it?

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A. Q.

Since 1998. Okay. And you had it consistently throughout

that time? A. Q. Yes, sir. And since 1998 through current have you

spent -- have you dedicated your professional life to dentistry? A. Q. Yes, sir. Okay. And where have you -- where have you

practiced? A. Q. In Houston. And with -- do you have a -- your own -- have

you always been at Antoine Dental or have there been other -- other facilities or practices that you've been a part of? A. No. I purchased my practice, Antoine Dental

Center, which I named it; and before that I used to work for different companies. MR. HECTOR CANALES: Now, if we would

begin with P61, Roy; and I'd like to start with the intraoral photograph. Q. (BY MR. HECTOR CANALES) While Roy is

pulling -- pulling that up, you were also present yesterday for Dr. Kanaan's testimony? A. Yes, sir.

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Q.

All right.

And how long -- how long have you

worked with Dr. Kanaan? A. Q. A. Since 2006. And how did you meet him? We were having a second baby and then my wife And

was about, you know, to give birth in October.

then I put an ad in the Greater Houston Dental Society and the American Association of Orthodontics. think -- one of these magazines. I

I don't remember.

And then I received a phone call from Dr. Kanaan that he's moving to the Houston area. And he came in and,

you know, we just got very close, very friendly and, basically, you know, we started from there. Q. Did you review Dr. Kanaan's qualifications or

look into his background at all prior to hiring him? A. Q. A. Yes, sir, I did. And what did you find? Great resume', great resume'. I mean, very,

very talented, very educated.

He had a master in

orthodontics and then he had a fellowship in the, you know, cleft palate team. Q. Do you recall where he received his training

in those areas? A. Harvard University. He received Harvard and

then in St. Louis University.

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Q.

And within the medical and dental community,

how are -- how are Harvard and St. Louis regarded? A. Q. Very, very prestigious, very prestigious. And what other -- anything else that you

considered before bringing Dr. Kanaan on board? A. His personality, his friendliness, his caring

for the patients. Q. And so, do you -- in having heard the

testimony of Dr. -- of Dr. Kanaan regarding the textbooks and his view of ectopic eruption as applied to the Texas Medicaid provider manual's definition of ectopic eruption, without getting all into detail, do you agree with Dr. Kanaan and his views? A. Q. Yes, definitely. Right. Do you share those same views as

Dr. Kanaan? A. Q. Yes, I do. And -- and do you -- do you adopt those views

for this proceeding? A. Q. A. Adopt the views for this proceeding? Yes. They -- I was trained to have these views over

ten years ago. Q. Okay. Let's look at -- and in reviewing the

patient charts, are you and Dr. Kanaan -- do you agree

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or apply the same methodology that Dr. Kanaan did to the scoring of HLD and the evaluations of these patients -- these patient charts? A. Well, not hundred percent. There's always

disagreements but, you know, we apply same terminology. Q. A. Q. And -And he always win because he's the specialist. Okay. And were there times over these 63

charts where you and Dr. Kanaan consulted over them together? A. Oh, many, many times, especially at the

beginning of our relationship. Q. And just for time -- purposes of time when did

that relationship begin? A. Started late 2006. I believe it was early

October, 2006. Q. Okay. Very -- very good.

Patient -- Patient 61 here, would you please -- do you have an opinion, sir, as to whether Patient 61 is -- meets the criteria for Medicaid orthodontic treatment? A. Based on the previous manual's requirements,

yes, it does. Q. All right. And could you explain -- and we'll

put up whatever -- whatever portion of the chart that

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you need.

Would you explain or justify to the Court

why Patient 61, in your opinion, is justified under Medicaid? A. Can I make a little demonstration so we can

get this ectopic eruption the way that I understood? May I do that? MS. EGAN: question and answer. THE WITNESS: JUDGE EGAN: A. Okay. Yes. Yes, ma'am. But if -Right now you just need to do

If you'll recall there was a

videotape at the beginning that was presented by Dr. Tadlock. These four teeth right here -JUDGE EGAN: Speak loudly. You need to turn

JUDGE SEITZMAN:

around -- if you're going to approach the screen -THE WITNESS: Okay. -- would you stand to the

JUDGE SEITZMAN: right side so you can face -THE WITNESS: point the laser.

I see -- let me see if I can

These four teeth up here and then these four teeth down here -- this four teeth -- let's just concentrate on this for a minute. These are the first

one they come into the mouth, okay, and everybody

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thinks that this and this are ectopic eruptions.

But

if you look at the arch these four teeth came in first. They came in the wrong position. the other two are ectopic. I understand the confusion with the textbook and then with the -- all the articles of school now. But this is the way that we were trained That's why you see

because 10-12 years ago when I look at the Proffit or the other articles, yeah, this and this are the only ectopic eruption; but for the Texas medical HLD purposes, this is the way we were trained. These are

the ones that they're occupying this space, here and here. And it's not only this. with these teeth back here also. rotated? space. One can argue

You see this tooth is

That's taking at least 3, 4 millimeter of If you push it this way and this tooth come in But

here, you can open the space for this one. Medicaid tells us this is it. this.

Just concentrate on

So, we cannot include -- this is an ectopic That's the way we were trained.

rotation also.

So, we need to push this forward, push this backward and open space for this tooth to come in. So, you get six that are ectopic tooth out there. That's the way we were trained to do so. That's the

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way Dr. Orr was also explaining the other day. Q. Did -- did you, sir, in forming your opinions

that these ectopic tiered teeth or ectopic did you rely on the definition that TMHP provided in its manual? A. Q. Yes, sir, I did. Okay. MR. HECTOR CANALES: Roy, could you put -It

please put up side by side, if possible, P64.61? should be Bate Number P-01235. Q. (BY MR. HECTOR CANALES)

And what is -- what

is this on the right? A. Q. This is the HLD index form right here. Okay. And -- and what does the -- how did you

score Patient 61? A. The same as I just explained. You get upper

right one, upper right two. incisor.

This is the central This is the

This is the lateral incisor.

canine, same thing in here.

Left side and left side

incis- -- central incisor, left side lateral incisor and left side the canine. lower. Q. And now, could you explain why you did not And the same thing with the

score these -- these teeth under anterior crowding? A. Well, because these are truly ectopic. They are rotated. They

are in the wrong place.

They are --

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they are just grossly out of the long axis of the range. They fit all the criteria of the ectopic and

also if you go back to the patient's profile and also if you can go back to the definition of anterior crowding -Q. Okay. I believe that would be on P65. What's

significant to you about the definition of anterior crowding? A. Well, let's -- yeah, the face. You see the

face is not a -- is not a protruding face, okay, the lips. So, if you -- the best thing for this patient would be try to expand this patient, to expand the jaws in order for the teeth to fit. Now, if you look at the definition of anterior crowding, it says anterior teeth that require extractions as a prerequisite to gain adequate room to treat the case. And then it gives you a choice, if it

is less than 3.5 millimeter it's not crowding and if you don't do extraction. crowding. These two sentences on the top they were eliminated from the new manual because it was not the proper definition. And, again, the anterior crowding is So, it's not anterior

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different what is called orthodontic crowding. Orthodontic crowding talks about the arch length; but since they are putting the anterior crowding, we just concentrate on that and then they came back and they just put this one, which was in there, they put on the front right here. Arch length insufficiency must

exceed 3.5 millimeter, which it just -- just does not match because they are telling us to measure the anterior teeth -- this is the lack of insufficiency right in here and then it goes back. length insufficiency. So, the two trays here that we have rotated, that there is not enough room for it, we can't include it. new manual. Q. Let me ask you a question. When you scored So, they're trying to include this in the It says here arch

Patient 61 -A. Q. Yes. -- were you being consciously indifferent to

the standards of how to score these HLD score sheets that are -- we see in P65? A. Consciously indifferent? No. I was trained

to -- I was doing my best in order to box myself within the manual inside of the manual that's their requirements.

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Q.

And was that the same methodology that you

applied to the remaining 62 cases as well? A. Yes, sir, I did. MR. HECTOR CANALES: to Patient 62. Okay. Let's move on

And if we could, again, I think start

with the photograph, Roy. Q. (BY MR. HECTOR CANALES) And if you could Do you have

explain, Dr. Nazari -- well, let me ask.

an opinion as to whether or not this particular patient qualifies and is in need of orthodontic treatment? A. Q. A. Can we look at the CEF, please? Sure. Yes. By looking at the pictures and then this

X ray, yes, definitely. Q. A. Why do you say that? Because to me these teeth are completely All this four on the top

ectopic eruption, definitely.

and then -- I mean, all the six on the top and the six on the lower by any means. and in this X ray, yes. Q. All right. MR. HECTOR CANALES: If we could put up By looking at the pictures

the HLD score sheet, which is P64.62. Q. (BY MR. HECTOR CANALES) And is -- based on

your review of the file of Parent 62 is your scoring

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consistent with the application of the -- of the provider manual? A. Yes, I believe so. All six on the top and six

on the -- in the lower jaw. Q. And is your -- is your rational for scoring

these as ectopic eruption versus anterior crowding essentially similar to your testimony just a moment ago regarding Patient 61? A. Yes. I even wrote here ER expansion options

for those patient, to expand the arches. MR. HECTOR CANALES: up Patient 19. Q. (BY MR. HECTOR CANALES) While that's Now, if we can pull

happening, sir, did you -- were you intending, sir, to inflate on patient 61 or 62 your scoring of ectopic eruption there? A. Q. No, sir, not at all. Did you inflate -- intentionally inflate any

scoring with regards to these 63? A. Number. I mean, they have the X rays. They

have the pictures. Q.

How could I inflate anything?

Again, sir, now we have up here Patient 19.

And, again, sir, do you have an opinion as to whether or not Patient 19 qualifies under the provider manual for Medicaid services?

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A. Q.

Up to 2011, based on my understanding, yes. And if we could -- and could you -- could you

explain -- I tell you what -MR. HECTOR CANALES: P64.19. A. Q. Yes, sir. (BY MR. HECTOR CANALES) Could you explain -Let's put up the HLD

you -- well, what was your scoring -- score here? A. I mean, these are -- I applied the same

methodology that I learned about ten years ago. JUDGE EGAN: scoring was. A. Q. Okay. He just asked what the

So listen to his question.

I'm sorry. (BY MR. HECTOR CANALES) That's okay. What

was your score -- total score? A. Q. score? A. Q. A. Q. 36. 40. All right.

Let's start there.

And what was your ectopic eruption

And where did the remaining points come from? Came from the overjet, I believe. Okay. And could you explain to the judges

your methodology and basis for scoring 36 ectopic eruption points? THE WITNESS: Can we blow up this side?

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A.

Yeah.

I applied the same methodology that I

learned about ten, eleven years ago, rotated, the slanted leaning teeth was considered to be ectopic. That's the way I did it. That's what I used. Now, if we could --

MR. HECTOR CANALES:

if we could pull up Dr. Tadlock's score sheet, which is R11-019. Q. (BY MR. HECTOR CANALES) Can you tell us

whether or not Dr. Tadlock found some problems with either the -- either the upper and/or lower anterior teeth? Can you tell us, based on looking at this,

whether he did or not? A. Yeah. He considered the upper and lower teeth

being as crowding, which is right in orthodontic world, which is different from the Medicaid, the way they classify. Q. They -Why do you say

Why do you say that, sir?

there's a difference between Medicaid and outside of Medicaid? A. Okay. Up to this point, this total -- just

imagine this is a separate page from this diagnosis. This is the HLD index. orthodontics. school. This has nothing to do with

This is not being taught in any dental

This is not being taught in any orthodontic

school, as far as I know.

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This diagnosis is the one that orthodontists use how to diagnose the case and then he applied what he has in orthodontic world, which is absolutely correct, Class I crowded. And he measured I

it by doing -- I do not agree with his measurements. mean, anybody -- if you measure from here to here, probably going to get -- well, I agree because he had the choice of up to 5 points. He couldn't do more but

you know you have over like a 10 millimeter of crowding. Q. Under the -- under the -- under the provider

manual's definitions and instructions, do you ever get four points under anterior crowding? A. No. You need to get either zero or five. You

cannot get four points. Q. So, in your opinion, sir, is four points a

correct score, a true and accurate score under the program? A. Q. No, sir, it's not. And -- and do you see up above there under Do you see the

mandibular protrusion and open bite? statements -A. Q. A. Yes. -- made below those?

It says see definitions/instruction.

It says

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how to score, which refers to the previous page.

It

says how to score and there was a debate whether it's not. Q. In my mind it was a definition. And what was your understanding of the -- the

words underneath ectopic eruption, whether they were -were those definitions in your mind or not? A. In my mind, it was definition. In my mind,

definition. Q. A. Q. And is that how you treated it? Yes, I did. Is there any doubt in your professional

opinion, sir, that Patient Number 19 has severe malocclusion? A. Q. Definitely, yes, sir. And that she is in need of orthodontic

treatment? A. Q. Yes, sir. Under Dr. Tadlock's score, did Dr. Tadlock Does she meet the

score -- would she be approved? criteria? A.

Well, in my opinion, if Dr. Tadlock was a It was

provider with me, he will send it to Medicaid. up to TMHP whether to approve it or not. So,

regardless of -- in my understanding regardless of what goes on the HLD, which is a very, very subjective

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matter. or not.

It's up to TMHP dental director to approve it That's how we thought it was. But if you're just gonna look at the 26

points as being told in the past few days, no.

The

clerk is going to rubberstamp as no, if they just going to look at the 16 points. MR. HECTOR CANALES: 16. Q. (BY MR. HECTOR CANALES) And if you could, Let's put up Patient

again, here, sir -MR. HECTOR CANALES: put up -Q. (BY MR. HECTOR CANALES) That's just to And then if we could

orientate you, Doctor. MR. HECTOR CANALES: If we could put up

side by side the HLD score sheet for Antoine Dental and for Dr. Tadlock, which would be P64.16 and then R11-016. Q. (BY MR. HECTOR CANALES) All right. So, we

have Dr. Tadlock on the right and Antoine Dental on the left. A. Q. You with us? Yes, sir. Okay. And how many points for ectopic

eruption did Dr. Tadlock score? A. Zero.

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Q. A. Q.

All right. I scored 30. Okay.

And how many did you score?

How many points for anterior crowding

did Dr. Tadlock score? A. Q. Five in the lower mandible. All right. And did you find any ectopic teeth

on the lower mandible? A. Q. A. Q. I -- me, yes, I did. All right. I found six. Okay. And so, again, could you please explain How many did you find?

or give your explanation of how the same teeth could be properly scored as -- as ectopic when Dr. Tadlock scored them as crowding? A. But, again, I used the rules and regulations

that, you know, I was told to use, which is in the manual and from the instructions I received about ten years ago how to score and Dr. Tadlock used his orthodontic background and he scored them like that. In his opinion, after 25 years of practicing orthodontist and not seeing a single Medicaid patient, it's very hard for it to convert. was hard for me to also understand how this work. Still I send cases and I talk to the NHIC director and I learn from them and then I adopted this. It

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Q.

Does a score of five on the lower teeth by

Dr. Tadlock indicate to you that he saw some abnormality on the lower jaw? A. Q. Yes, definitely. But you and he have a difference of opinion as

to how to describe or score that abnormality? A. Q. Yes, sir. Okay. Did -- in using the provider manual,

what was your methodology with regards to a rotated or leaning tooth? In other words, how did you treat it?

Was it included or excluded from your consideration of ectopic eruption? A. It was included in my understanding of ectopic

eruption. JUDGE EGAN: I'm sorry?

THE WITNESS: It was included in my understanding of ectopic eruption. Q. (BY MR. HECTOR CANALES) And presently has

that changed? A. Presently with the new definitions that are --

I learned in the past few months, yes. Q. So, is it fair to say that you counted some

rotated or slanted teeth within these 63 that under the new present definition would not be counted? A. Yes, sir.

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Q.

Okay.

Is that based on the -- on the changed

definition of ectopic eruption? A. Q. Yes, sir. Had you -- had that definition been changed

prior to 2012, would you have been willing to apply and abide by whatever definition or instructions Medicaid provided regarding the scoring of HLD? A. Yes. With regard the scoring of HLD, yes,

definitely. Q. All right. MR. HECTOR CANALES: the photograph for Patient 25. We'll move on. there. We've got a glitch on 25 If we could pull up

Let's see if we can fix that. 29, let's do 29. Can you just take out the upper and lower

white and blow up on the -- on the... Q. (BY MR. HECTOR CANALES) Okay. What do you

see here, Doc? A. This six on the top they're not in the right They're ectopic. And then the teeth in the And then I

position.

lower as you see they're more forward.

believe even with the new guidelines, this tooth right here is ectopic because the enamel-gingival junction is not within the alveolar ridge.

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Q. A. Q.

All right.

Let's stop --

That's -- yes. Let's stop right there. Stop right there.

The alveolar ridge and outside of the conjunctive, does -- does that ridge -- do you have an opinion, sir, as to whether or not -- first of all, is that defined specifically any further than when it's mentioned in the manual? Is there any other specific

definition of it that you're aware of in the manual? A. Q. No, just -All right. So, your understanding of that

ridge, is that ridge or in that axis one dimensional? Two dimensional? opinion? A. Q. It's three dimensional. Okay. And so, could you explain to the Court Three dimensional? Do you have an

how that ridge -- why that's important to you and how that work -- how that ridge is in a three-dimensional form? A. Yes. The ridge has a height, has a width and So, the teeth

then width and it has transverse also. can erupt in any position.

We call it labio-lingual.

It can be mesial distal, which is drifting right and left; or it can be up and down. So, there are three

axis; and if you refer to the picture in Draker also,

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he said there are three planes in human body. are three planes.

There

You've got sagittal which is this You've got You've got

right in here that is right and left. caudal, which is front and back and.

anterior-posterior transfer that goes like this. So, teeth have its own coordinates like 000, 111, 222, however you want to do that. you're out of it, it's irregularity. Q. A. All right. And do you see some of that here? I see definitely. So, when

Definitely, sir.

This patient it is not treated -- again, we are dentists. We are not here saving hearts or We're here to save teeth.

brains or whatever.

This tooth is not treated this patient is gonna lose -- lose this tooth and you see trauma from occlusion. If they want to give this patient three With the new definition, it's

points, that's fine.

only two; but in order to correct this, you need to move everything around. trained. Q. That's the way we were

All say we need to move around are ectopic. And so, do you -- do you have an opinion

whether or not there's dysfunction here? A. here. MR. HECTOR CANALES: Okay. And can we put Yes, sir, that's definite dysfunction right in

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up the HLD 64.29? Q. (BY MR. HECTOR CANALES) This will be your HLD

score, sir. MR. HECTOR CANALES: All right. 64.29.

And then if you could put next

to that Dr. Tadlock's score, which is R11-029. Q. (BY MR. HECTOR CANALES) While that's coming

up, you -- what was your total score, sir? A. 29. Q. For a total of 29? Okay. And Dr. Tadlock on the left here 24 for ectopic and mandibular protrusion five,

had a total score of what? A. Five. He did agree with the mandibular

protrusion only but he did not consider those six being ectopic. Q. So, the difference here between you and

Tadlock is simply your interpretation of ectopic eruption? A. Q. Yes, sir. Are you familiar, sir, with whether or not

the -- the manual gave any instruction to you as to whether or not you were to be aggressive or conservative on your scoring? A. Yes. Be conservative.

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Q. A.

Did you follow that -- that instruction? Yes. MR. HECTOR CANALES: Could we pull up the

HLD score sheet 64.14? Q. (BY MR. HECTOR CANALES) All right. And what

was your ectopic score? A. Q. A. Q. 30, ten teeth. All right. Out of a maximum of 12, correct?

12, yes, sir. All right. MR. HECTOR CANALES: Can we put up the

intraoral photograph, Patient 14, yes. Q. (BY MR. HECTOR CANALES) MR. HECTOR CANALES: score sheet up, Roy? Q. (BY MR. HECTOR CANALES) Oh, on the ectopic So, on your -Can we leave the

eruption scoring, which teeth did you not score? A. Well, I could have scored all of them but You know, we reached 26. You

there wasn't any need.

don't want to -- you just want to make sure that the conditions that are present you do them so -- you know, you had the overjet present. We did that and then this

front -- looking at this there's nothing there for the canines to erupt right there. can be sure. If I can see the pano, I

Based on my notes I scored the ones that

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were visible in the mouth ridge. Q. Could they have been -- would you -- could you

have been justified, sir, in scoring all 12 teeth as ectopic in this case rather than 10? A. Q. A. If I can look at the pano, to... Okay. Yes, definitely. See this canine doesn't come

up front -- even the premolars don't have enough room here to erupt. This one. There's just not enough room

for them to come.

Just not enough space, not enough You see

room for them to erupt and you see the lower. how these teeth are going. Q.

And is there any -- do you have an opinion,

sir, as to whether or not Patient 14 qualifies for Medicaid treatment under the program? A. Qualified in the past. Everything be

recorded.

Qualified in the past, in my opinion it was. MR. HECTOR CANALES: Okay. If we could

turn to the intraoral photos of Patient 32. Q. (BY MR. HECTOR CANALES) And if you could

explain to the -- to the judges how spacing affects your -- your scoring of ectopic teeth. A. You can look at the smile. The upper arch

have not developed as properly as the -- as the -- as much as the lower arch. And then we can see the

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slanted teeth, how slanted they are and how slanted these lower teeth are. And then we need to expand the And you

upper as much as we can bring them forward.

see where this canine is this upper canine is also supposed to be on this lower canine right in here. That's where the teeth are supposed to be. So, we need to expand the upper jaw from front to the back in an anterior-posterior transfer, anterior-posterior dimension. And then as much as we

can, we need to stop the growth of the lower jaw. And if I'm correct, even with the new guidelines -- I don't remember but probably this patient would qualify. so, Class III. would qualify. Not on the ectopic eruption, you know, as far as being surgical because they changed the -- they changed the criteria because they are trying to get more into orthodontic world than -(Court reporter interruption.) A. They are trying to get closer to orthodontic This might be a surgical class,

Even with the new guidelines probably

world rather than being in the HLD because HLD was not a good index to provide orthodontic treatment for the patients who really need braces or orthodontic treatment.

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Q.

Okay.

Let me -Let's pull up the

MR. HECTOR CANALES: patient photos for Patient 35. Q. (BY MR. HECTOR CANALES)

Now, Dr. Nazari, do

you have an opinion as to whether Patient 35 is in need of orthodontic treatment? A. Q. A. Yes, definitely. Why? Looking at this, the slant teeth they are Looking at this --

based on the -- even -- even I could, you know -- even with the new definitions, these teeth might be slanted that -- they would qualify as ectopic because enamel-gingival junction it should be at the alveolar ridge, which, in my opinion, they are not. ridge comes and should stop right in here. The thing is when you have teeth that are slanted, the bone is going to go after them. I mean, Alveolar

where -- where is -- where's the alveolar going to stop? Where's it going to stop? Wherever the tooth So, you need to have

goes the bone is to go after it. an alveolar ridge. elegantly described.

That's the whole thing Dr. Orr You need to have a nice alveolar

ridge, nice alveolar ridge not -Q. And are those -- are those teeth outside of

the ridge?

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A. Q.

In my opinion, they are. All right. MR. HECTOR CANALES: Can we show the --

put up the tracing, Roy? Q. (BY MR. HECTOR CANALES) And would you explain

to the panel how the tracing would assist or not assist you in this particular case with making determination of the -- of a tooth being outside the ridge? A. To be honest with you, you don't need to have

tracing on this; but, you know, you can see the measurements. 130 is not normal. Even for Should be

African-American patients it's not normal.

around -- like around 105, 100 at the end of the day; and then this one should be around 90 degree, not 129 degree. 95, 100. Probably the African-American degree is like This is not normal for -- for anybody. Even

don't have to have tracing, you just see -- see this bite. Q. This is -- do you have an opinion, sir,

whether or not you see an unusual pattern of eruption here on patient -A. Q. A. teeth. It is very unusual. And which teeth is it unusual? All six of the front teeth, all of the front

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MR. HECTOR CANALES: could you, Roy, put up P64.35? scoring. Q. (BY MR. HECTOR CANALES)

All right.

And so,

This is the HLD

All right.

And so,

which teeth did you score as ectopically erupted? A. We did the four upper front teeth and four

lower front teeth. Q. And is that consistent with the tracing and

the X rays and the photographs that you just saw? A. I believe so. If this matches that, it should

be consistent. Q. A. Okay. It has been on -- you know, it's been

underscored also to include the canines. Q. Okay. MR. HECTOR CANALES: And if we could put

up R11-35, Dr. Tadlock's score sheet, to compare to Antoine Dental. Q. (BY MR. HECTOR CANALES) Did -- what did

Dr. Tadlock score for ectopic eruption? A. He scored zero. MR. HECTOR CANALES: pull up Patient 25 file, Roy. through each page of it. Q. (BY MR. MORIARTY) Okay. Patient -- Patient All right. Let's

We're going to go

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25 is one of the files that counsel went over with you regarding the presence of a -- or absence of a -- of an HLD score sheet. A. Q. Yes, sir. All right. And if we could flip -- flip Okay?

through it, see if -- to see if it's -- to see if it's there. Okay. And I think we went through. In

this particular set of files, it's not there, right? A. Yes, sir. MR. HECTOR CANALES: up P64.25. A. Q. A. Yes, sir. (BY MR. HECTOR CANALES) No. This is -Okay. If we can put

This is the approval form that we

received from TMHP. Q. Here it comes. Here it comes. It hadn't come

up there. So, this is the HLD score sheet for same patient, Patient 25? A. Q. I believe so. And it was -- and it was pre-author- -- and

you got pre-authorization approval for Patient 25, correct? A. Yes.

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Q.

All right.

So, how did it get there?

How --

how did -- how did this HLD score sheet for Patient 25, how did it get to TMHP? A. We completed the form. We packaged -- all the

X rays, all the necessary documents, the photos and then we packaged them and we send them to TMHP. MR. HECTOR CANALES: Roy. A. Q. And then we received authorization. (BY MR. HECTOR CANALES) And what is -- what Go back one page,

is this that we're looking at, sir? A. This is mandatory prior authorization request

form that we completed for the patient on the date of 1/30/07. Q. And does it say -- is there a portion, an area

there for HLD to be checked? A. Q. Right in here. Did you ever -MR. HECTOR CANALES: down, Roy. Q. (BY MR. HECTOR CANALES) Did you ever, sir, You can take that It says HLD.

misrepresent in any of these -- in any scores, whether these 63 or beyond, did you ever misrepresent any scoring of your HLD scores to -- to TMHP? A. No, sir.

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Q.

Okay.

Did you use -- did you ever substitute

your own opinion for -- or standard for that of TMHP and the manual? A. Q. A. My own opinion -Yeah. -- for the -- for the manual? No. Q. I --

In other words, did you follow -- did you

follow it? A. Yeah, I followed. I mean, some of the things

in my professional opinion when it comes to the HLD index, I used my subjective judgment, my personal opinion. Q. If it was defined, if they gave you -- for

instance, an ectopic eruption, if they gave you a definition and a specific instruction, did you ever substitute your own definition or ignore their instruction ever? A. No. You can't. You can't. If you're bond We

with this company or any other company, you can't.

deal with all the insurance companies also every day. Q. And -- and do you have an opinion, sir, as to

whether or not there was some level of subjectivity within the HLD scoring? A. Yes, I do.

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Q.

Thank you very much. MR. HECTOR CANALES: THE WITNESS: JUDGE EGAN: Pass the witness.

Thank you. We have some questions before

we turn it over to -- for recross. Go ahead. JUDGE SEITZMAN: JUDGE EGAN: Go ahead.

Were you aware that TMHP was

being audited in 2008 by the -- by OIG? THE WITNESS: JUDGE EGAN: No, I had no idea. Did you ever hear any

discussions about the findings of that audit? THE WITNESS: During that time, no. We

just found out after the news break, which was in May of 2011 -- 2010 that's the time that we find out that something going on with TMHP. JUDGE EGAN: the televised story -THE WITNESS: somewhere from Dallas -JUDGE EGAN: THE WITNESS: Okay. -- that they were inves- -And -Televised broadcast And "the news" you mean at

first time we found out there was a problem. JUDGE EGAN: have. All right.

That's all I

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JUDGE SEITZMAN:

Doctor, I just have a

couple of questions that really involves the process from when -- and I'm just going to focus on Medicaid patients. THE WITNESS: Yes, sir. -- when a Medicaid

JUDGE SEITZMAN:

patient comes into your office either by referral or because they walk in through the process. THE WITNESS: Yes, sir. And I want to make sure I

JUDGE SEITZMAN: understand your testimony.

So, if I as the patient came in and let's say for all other purposes -- because you can tell by looking at me I'm under the age of 20 -- that I qualify for Medicaid. So, I walk in and -- and so, as I

understand it, the first things that -- first thing that happened is that there's a measurement, a valuation, a diagnosis. Is that essentially correct I'm not talking about I'm just trying to

the first group of things?

filling out all the paperwork.

understand what happens, what you submit, what you're paid for and then we'll get to the -- to the next part. So, I come in. take measurements, X rays -THE WITNESS: Yes, sir. You evaluate me and you

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JUDGE SEITZMAN: a scoring and a diagnosis. correct? THE WITNESS.

-- and make some kind of Is that essentially

What happens is when the

patients come in either they -- you know, they want to get braces or they want to get examined as general patient. Then we take the X rays first. We take the Either me or

X rays first and then we see the patient.

Dr. Kanaan examine the patient and complete the HLD score sheet. Then we process all the photographs and

during the time that we were required to submit the study models, we would take the molds. the molds and send it to the laboratory. We would take Within four

or five days, from the laboratory we will receive the molds. We package everything together. Send it to

NHIC or TMHP, which is all, I believe, in 2005. JUDGE SEITZMAN: that. Okay. And so, you submit

And then -- let's assume it's pre-authorized.

I'm going to break the question down into two components. Let's assume that the submission does receive the prior authorization. THE WITNESS: Yes, sir. Okay. Whether or not you

JUDGE SEITZMAN: treat me --

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THE WITNESS:

Uh-huh. -- are you compensated by

JUDGE SEITZMAN:

Texas Medicaid for that initial measurement, evaluation process? THE WITNESS: Okay. It's going to take The initial

about two sentence of explaining.

consultation there's a code for it, which is called 8660. $15. That initial consultation is -- you can charge If the patient -- if you just do consultation and

you do not present anything to Medicaid or TMPH because you do the consultation. But if the patient is

approved for braces you're not entitled to that; and if the patient comes in and they are approved, you can bill for the records, along with the procedure that you do. The first procedure that we do is called complete

banding. JUDGE SEITZMAN: getting to the treatment yet. THE WITNESS: Yes. Because what I want -Well, I'm not -- I'm not

JUDGE SEITZMAN: THE WITNESS:

For that portion for that

treatment if they authorize you, yes, you can bill for it. JUDGE SEITZMAN: And if I come in as a

Medicaid patient and my question is am I eligible for

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the dental care -THE WITNESS: Uh-huh. -- because of the

JUDGE SEITZMAN:

parameters and you submit a request for prior authorization and it's declined, are you compensated for any of the work that you did in preparing and doing the measurement, evaluation and diagnostic work for the submission of that prior authorization? THE WITNESS: for two of them. JUDGE SEITZMAN: THE WITNESS: Okay. Out of every ten patients

Out of it because that was If I

the main concern at the beginning back in 2000.

may elaborate that, you know, I was talking to Dr. Orr that, "You know, well, I don't know. I don't want to

spend a hundred dollars on every patient and send it and be denied." He told me as an encouragement for the

provider to take care of the needy kids, "We pay two out of every ten denial." JUDGE SEITZMAN: THE WITNESS: So, there's a ratio? For

There was a ratio.

every two out of ten denial, you will get paid. JUDGE SEITZMAN; All right. So, I have

received -- you have received prior authorization to treat me as a Medicaid patient and I elect not to

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return, what records have you generated just in that initial phase of doing the prior -- the submitting the request for the pre- -- prior authorization? A. The X rays that you see, the two X rays, one

is the cephalometric or the head and then one is the other one, the panoramic, and then those other ones, those eight photographs and the HLD and then the molds, the molds -JUDGE SEITZMAN: THE WITNESS: All those. JUDGE SEITZMAN: All right. Will you have And the tracing.

-- and then the tracing.

created a treatment plan for me? THE WITNESS: Well, based on the

Medicaid -- second paper that when you look at the second sheet, it says prior authorization. That's the

treatment plan which we submit to the -- to the Medicaid, to the TMHP that we -- basically there are four orthodontics. It's very simple. You have the

upper banding, lower banding and then how many adjustments that you think you're going to be seeing and Medicaid and TMHP had a standard 26 months, unless it would go over. Then you would request for

additional adjustments. JUDGE SEITZMAN: All right. And if I

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get -- you get prior authorization to treat me and I come back in as a patient and you put the braces on or whatever, then what record are you generating with respect to, I think we call them, progress notes. THE WITNESS: Yes. I think that's what we

JUDGE SEITZMAN: call them with physicians. THE WITNESS:

Yes. So, would you create a

JUDGE SEITZMAN:

progress note record at that time? THE WITNESS: Yes. Okay. And if I didn't

JUDGE SEITZMAN:

come back and so, you got prior -- you received prior authorization but I elected for whatever reason -THE WITNESS: Yes. -- not to return, maybe I

JUDGE SEITZMAN: moved to a different state -THE WITNESS:

Yes, sir. -- would there be a

JUDGE SEITZMAN: progress note? THE WITNESS: yes, sir.

Different progress notes,

They're different. JUDGE SEITZMAN: THE WITNESS: There would. The one first initial

Yes.

consultation is different than the one we generate for

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the active patients. JUDGE SEITZMAN: Okay. And so what -- so,

what would the progress note look like for the initial consultation? THE WITNESS: I need to show you one. I

don't know if anybody would be kind enough to show one of them. lines. JUDGE SEITZMAN: questions. I said I had a few They're just a The one that they were showing that has long

They're just A, B, C parts.

few questions that have a lot of components. THE WITNESS: No, not this one. Let's leave that up a

JUDGE SEITZMAN: minute.

Roy, would you leave -- I understand. Roy, would you leave that up a minute? Okay. All right. And, Roy, can you

identify for the record. MR. ROY ORNALES: ADC001384. JUDGE SEITZMAN: And, Dr. Nazari, I know But this is the This is P3, Page 8,

this is not what you were looking for.

progress note that you were talking about earlier that you would write or create and maintain if you were actually treating me and just not initially seeing me; is that correct?

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THE WITNESS:

No.

This is for the -- when

the patient comes in the first time, this is the reg- -- this is included in the registration. this we do all general dentistry. And in

There is a column

the things that we have done to the patient and that's the explanation on that side. THE WITNESS: Yeah. Sorry. This is --

and then if the patient we do this side or the patient comes back for the orthodontic care, then we use what is usually used in orthodontic care charts, which is different than this. JUDGE SEITZMAN: eyesight's not that good. portion of this? Okay. Okay. So, Roy, my

Can you expand just a

It doesn't matter which portion. So, Dr. Nazari, do you know is this

a patient who came in for initial consultation and did not return or do you know -- can you tell by looking at these progress notes what the nature of this patient was? THE WITNESS: I don't have my signature in

here but I believe this was -- came in for the regular checkup. JUDGE SEITZMAN: of the document? What I'm really trying to understand -Do you need to see more

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and I'm not doing it very artfully.

So, let me just --

what I'm trying to understand is what the progress notes or what the notations or documents that you would create for somebody who came in for an initial evaluation -THE WITNESS: Uh-huh. -- or consultation versus

JUDGE SEITZMAN:

the notes or documents you would create for somebody who came in for a follow-up where you actually, then, put the bands on, did the treatment. THE WITNESS: to the other form. of it. Yeah. That is transferred

This is the registration form, part If I can go over and

This is for the general.

show you on the other one. JUDGE SEITZMAN: document you need? THE WITNESS: the orthodontics. JUDGE SEITZMAN: As we have been pretty Yes, the one that has all Do you know which

much through the hearing, we're in Roy and Stacey's hands. We're in pretty good hands. Okay. for the record? MR. ROY ORNALES: 3, Bate Number ADC001383. This is Patient Number Roy, can you identify the document

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JUDGE SEITZMAN:

Dr. Nazari, is this the

type of document you were talking about? THE WITNESS: No. This is diagnosis form. Okay. Let's talk --

JUDGE SEITZMAN:

let's talk about that for a minute. THE WITNESS: This is a diagnosis form. So, if I come in --

JUDGE SEITZMAN: THE WITNESS:

Yes, sir. -- and you do the

JUDGE SEITZMAN:

measurement and evaluation, diagnosis, is this one of the documents you would create? THE WITNESS: Yes, sir. All right. And you would

JUDGE SEITZMAN:

create this document whether or not you actually, then, treated me; is that correct? THE WITNESS: Yes, sir. All right. Let's go off

JUDGE SEITZMAN: the record a second. (Off the record) JUDGE SEITZMAN:

All right.

We're back on

the record at one minute after noon. Okay. document. So, Roy, you've pulled up a

Can you identify it, please, sir? MR. ROY ORNALES: P23, Bate Number

ADC0000090.

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JUDGE SEITZMAN:

All right.

And I'll

indicate for the record that this is what was shown on the screen is from one of the files, Doctor, that you have in front of you that you were actually holding up the form or is that -THE WITNESS: one. JUDGE SEITZMAN: were looking for? THE WITNESS: Yes. All right. Tell me what But this is a form you No. This is a different

JUDGE SEITZMAN:

you call this and describe what it is. THE WITNESS: This is progress notes that

we use for all of the active orthodontic patients, which we document in here that -- where we put the brackets on and what you going to be doing. This is

the diagnosis part and basically every time that they come in for some kind of, you know, treatment, adjustments and banding the back -- you know, the back teeth, you document right in here. JUDGE SEITZMAN: All right. So, if I were

looking through the records and I'm just trying to identify this and I wanted -- if I wanted to see a patient and look at the treatment notes of a patient that you or for Dr. Kanaan that Dr. Kanaan had treated,

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then I would be looking for a form that in the -- has a large left to right center column that says treatment notes; is that correct? THE WITNESS: Yes, sir. All right. And if I'm

JUDGE SEITZMAN;

looking at a form that says progress notes, that is -those -- those are not treatment notes; is that correct? THE WITNESS: No. It's the same as this.

Progress notes, treatment notes, this is it. JUDGE SEITZMAN: okay. All right. There was --

So -- so, I'm trying to make it real easy when I

go back -THE WITNESS: Yes, sir. -- and read this four-day

JUDGE SEITZMAN:

record and I need to know which form I'm trying to look at. So, treatment notes are exactly what they say -THE WITNESS: Yes, sir. -- treatment.

JUDGE SEITZMAN:

And that's what I'm -- that's what I'm confused about because I thought progress notes are what you called your registration notes or your intake notes but they didn't indicate -THE WITNESS: that's a different form -Oh, that's a different --

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JUDGE SEITZMAN: THE WITNESS: the general practice.

That's what I'm trying --

-- for the general -- for

And then we call this progress

notes also but they use a different term that we don't use in our -- we call this progress notes also. JUDGE SEITZMAN: THE WITNESS: All right.

They use a different term.

Treatment notes or treatment card. JUDGE SEITZMAN: orthodontic work? THE WITNESS: Yes. We -- between our We call all of For where you do the

practice we just got progress notes.

them progress notes, treatment and progress. JUDGE SEITZMAN: Okay. Well, I'm trying

to understand when I look at a form -THE WITNESS: Yes. -- what I -- what I'm

JUDGE SEITZMAN: looking at.

So, when I look at a form in which the

patient just came in for initial -THE WITNESS: The initial. -- review --

JUDGE SEITZMAN: THE WITNESS:

Initial should be on that The first time that

sheet that you just showed me.

they come in, no treatment is going to be there. JUDGE SEITZMAN: And it's entitled --

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JUDGE EGAN: THE WITNESS:

Talking about this? Yes, yes. -- progress notes at the

JUDGE SEITZMAN: top? THE WITNESS:

Yes. And when you actually

JUDGE SEITZMAN:

perform the treatment, then we look at the one that's got a large center column called treatment notes; is that correct? THE WITNESS: Yes, sir. And that's how I would

JUDGE SEITZMAN:

differentiate between the two forms? THE WITNESS: Yes, sir. So, for this point that

JUDGE SEITZMAN:

has a treatment note, I should be able to find a previous progress note which indicates the initial visit? THE WITNESS: paper. JUDGE SEITZMAN: you. And I apologize it was kind of sequitous getting there but I just want to make sure I understand what was going on. That's all the questions I have. Thank Okay. All right. Thank Which should be in that

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you. JUDGE EGAN: MR. MORIARTY: Mr. Moriarty? Thank you, Judge. Before I

get started, I'd like to reoffer into evidence Respondent's Exhibit 3, which is the 2007 or 2008 Texas State Board of Dental Examiners records regarding the complaint that he had at the Dental Board. Now let me see if I can -JUDGE EGAN: as already admitted. I've got it -- I have it down

So, Respondent's Exhibit 3 -I think our note -- I

JUDGE SEITZMAN:

think our discussion on that it went to the admissibility not the -MR. MORIARTY: Okay.

REDIRECT EXAMINATION BY MR. MORIARTY: Q. sheet? A. Q. A. I believe Dr. Orr. And when and where did he do that? I called him several times and then we Who trained you how to score an HLD score

discussed the manual and then he told me that get some cases, send it to me and then we go over them together. Q. A. Okay. And when was that about?

Late 2002, early -- in that neighborhood.

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Q.

Okay.

And when did you feel like you had

adequately gained knowledge of how to properly fill out an HLD score sheet? A. Q. A. Q. Probably took me like one or two years. Okay. 200- -- would have been by 2004?

2004-2005. And have you maintained a relationship with

Dr. Orr since that time? A. Q. No, sir. All right. And do you see him periodically or

talk to him or socialize with him at all? A. Q. Not at all. How did you select him, if you selected him,

to be your expert in this case? A. Q. A. Q. I did not, sir. Okay. I did not. And did Dr. Orr teach you this -- this theory

that ectopic eruption means any tooth that is twisted or turned or crooked? A. Q. A. Q. Did he teach me that theory? Yes, sir. We can say that, probably, yes. Okay. Now, I think this is a question that

the judges would really like to know the answer to.

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MR. HECTOR CANALES: JUDGE EGAN:

Sidebar.

We'll let you know what

questions we really want to know the answers to. MR. MORIARTY: JUDGE EGAN: That's probably right. So, just -It may be a question

JUDGE SEITZMAN:

Mr. Moriarty really wants to ask so he can get some information to us. Q. (BY MR. MORIARTY) It's your sworn testimony

before these judges that you had no idea -A. Q. Uh-huh. -- that the Texas State -- that the TMPH was

not doing the medical reviews of these tens of thousands of HLDs? A. Q. A. No, sir. Is that your testimony? That's my testimony, yes, sir. MR. MORIARTY: Could I see R58, please.

I'd like to blow up that top paragraph, the bottom two sentences or bottom sentence of that paragraph and the sentence above that. Q. (BY MR. MORIARTY) You heard Dr. Orr's

testimony -MR. HECTOR CANALES: at this point. I'm going to object

There's been no foundation laid with

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the witness as to this -- as to this e-mail. JUDGE EGAN: finished his question. Okay. He hasn't -- he hasn't

Until he asks a question -Well, I just heard

MR. HECTOR CANALES:

that question wasn't even going to attempt to -- to do it. JUDGE EGAN: He's asking him a question

about that document and your client can ask him if he -Q. Doc- -MR. MORIARTY: JUDGE EGAN: Q. (BY MR. MORIARTY) I'm sorry. Go ahead. You were present when (BY MR. MORIARTY) You were present when

Dr. Orr testified about that e-mail that he wrote in January of 2007? A. This -MR. HECTOR CANALES: Honor. e-mail. Objection, your

There's no foundation for --- I don't know what Is he referring to this e-mail? He hasn't --

there's no foundation questions with this e-mail or the conversation in this question about it. JUDGE EGAN: I believe he's identified it Your objection is

as Respondent's Exhibit 58. overruled.

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MR. HECTOR CANALES:

The witness hasn't

identified that he even knows what this e-mail is. JUDGE EGAN: He has asked -- he has asked

him if he heard the testimony about this document. That's the question before your -- your client. MR. HECTOR CANALES: hear that in the question. JUDGE EGAN: MR. MORIARTY: JUDGE EGAN: I'm sorry. I didn't

I apologize.

Is that what you asked? Yes, ma'am. All right. Go ahead.

MR. TONY CANALES: Q. (BY MR. MORIARTY)

If not, now.

You heard Dr. Orr's

testimony about this e-mail? A. Well, I remember this e-mail but exactly what

he said I don't remember to be honest with you -Q. A. Okay. -- because it's long day eight -- eight hours.

So, what happened, I don't know. Q. And he clearly points out that he is aware

that there is a different approval process and he remarks, So, any treatment since that date would get his close scrutiny. A. Q. Okay. You see that? My question to you is: Do you really deny

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under oath that you had no knowledge that THNP had opened the door and that anybody that submitted a form that had 26 on it was going to get approved essentially? A. Yes. I never knew that. I had no idea what

was going on in the background. Q. Never had -- no orthodontist ever talked to

you about that? A. Q. No, never. Came as a complete surprise to you when you

first learned of it? A. Q. A. Yes, definitely. When did you learn about it? Whenever everybody started talking about it

back in, like, 2011. Q. Okay. Wasn't discussed at any stakeholder's

meetings? A. Stakeholder meetings as I remember there was a

discussion about changing orthodontics back in 2009 or something like that. Q. care? A. I -- it wasn't managed care. It was about Okay. There was going to be a change.

That was the change to the managed

they were going to go through more orthodontic evaluation rather than using the HLD index. They were

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going with the orthodontics.

I have expressed

complaint about TMHP that they do not approve all the cases that really need braces that, you know, they have problem with the posterior teeth. position. I have taken that

But as far as if they are not looking at it,

I have no idea they're not looking at it. Q. All right. And is it fair to say that you

learned everything that was important about scoring an HLD from Dr. Orr? A. Is it fair to say? To probably 60 percent, 70

percent, yes. Q. Okay. Can you help these judges understand

the difference between a child that needs braces or can benefit from braces and a child that actually qualifies for braces under Medicaid? A. Well, there are some conditions in the back

the patient might need to have -- patient might have, you know, very good front teeth and sometimes they have problem in the back. And then HLD just does not That's what I

provide the treatment for those kids. have express complaint about. Q.

Is essentially what your testimony is is that

there's an unlimited supply of children who could benefit from braces? MR. HECTOR CANALES: Objection. Misstates

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testimony. A. No. MR. HECTOR CANALES: JUDGE EGAN: It's argumentative.

Sustained.

Rephrase the question. Q. (BY MR. MORIARTY) Is there a huge percentage

of children -- is it your contention there's a huge percentage of children that could benefit from braces? A. Q. Yes, sir. And how does that automatically convert to

severe handicapping malocclusion? A. Q. A. may. Q. A. Okay. Okay. Based -- again, severe handicap Okay. You need to define that.

I need to define it? No. I -- I -- we need to define that, if I

malocclusion, handicapping when it comes to the mouth, when the teeth they are not doing what they supposed to do, when the canines are not in proper position -- just like on the picture that we just showed -- I believe it was the last patient -- where you have the canine, the upper and lower canine, they're not occluded properly, they're not doing what they're supposed to do, that's the malocclusion. That's the handicapping on that side

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of the patient that they're not occluding.

That's --

that's the one that, you know, we are going by. Q. A. Is that -Or with the teeth in the front are not

touching, they're not biting, that's handicap malocclusion. Q. Is it your contention that malocclusion and

handicapping malocclusion mean the same thing? A. Okay. Are we talking about Medicaid or we

talking about the literature outside Medicaid? Q. We're talking about the medical definition,

the dental definition of handicapping malocclusion. Is -- is it your testimony malocclusion means exactly the same thing as handicapping malocclusion? MR. HECTOR CANALES: I'm gonna object to

the question as I think it's confusing in that it's not -- doesn't specifically define whether we're in the Medicaid manual or outside of the Medicaid manual. JUDGE EGAN: MR. MORIARTY: question, Judge. And I'll pass the witness. MR. HECTOR CANALES: Honor. JUDGE EGAN: Then you're excused. Thank No questions, your Can you clarify? I'll withdraw that

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you very much. THE WITNESS: JUDGE EGAN: record for just a second. (Off the record) JUDGE SEITZMAN: the record at 12:40. All right. We're back on Thank you. We're going to go off the

And before she walks out the

door -- Roy's staying for a little bit -- but I want to thank Roy and Stacey. We both do. You guys have done

a wonderful job and y'all have been cooperating with each other and the counsel. So, no matter whose

exhibits they were you were able to pull them up. Y'all did a great job because without you we'd be here until next week, I'm sure. So thank you. As much as I like both

MS. STACEY MANELA: of you, I'd rather leave today. JUDGE SEITZMAN:

You are free from your

restraints as long as counsel's letting you go. MS. STACEY MANELA: kudos. It was a pleasure. JUDGE SEITZMAN: up, Mr. Moriarty. MR. TONY CANALES: Well, Before he does All right. Let's take Thank you for the

that can we get an announcement that they're resting? JUDGE EGAN: That's what we're doing.

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JUDGE SEITZMAN: him. rests. So, Mr. Moriarty? MR. MORIARTY:

That why I'm going to

But I think he's going to do something before he

Yes, your Honor, before I

rest HHSC has filed with the Court a proffer of rebuttal testimony from Dr. Linda Altenhoff and frankly the tender is exactly what's in the -- in the pleadings. So, it'd be acceptable to the State if the

Court just accepted that as a proffer of her testimony. JUDGE SEITZMAN: I cut Mr. Moriarty off. JUDGE EGAN: MR. MORIARTY: JUDGE SEITZMAN: MR. TONY CANALES: Mr. Canales -- I'm sorry.

Did -Were you finished? Yes. Yes, ma'am.

Mr. Canales? Yes, your Honor.

Respectfully we would object to the proffer on various grounds. it's a rebuttal. One, we do not believe

We do not believe it's a rebuttal and We do not think it's But we would

it's not -- I saw the proffer.

challenging anything that has been said.

object to the calling of a witness twice to a State's case. My understanding for the purpose of the record She's

is that -- I've got to look at the reporter. looking to me under the arm. Excuse me.

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JUDGE EGAN: closer to you.

Move the mic a little bit

MR. TONY CANALES: JUDGE SEITZMAN: MR. TONY CANALES: JUDGE SEITZMAN: MR. TONY CANALES:

Yes.

I have --

You object, I take it? I object. Thank you. They've rested

already -- they haven't rested yet. JUDGE SEITZMAN: All right. So, I

listened to the recording of Dr. Altenhoff's testimony last night -- actually tell the truth it also went into very early this morning -- and my recollection of that recording was that during Mr. -- and I listened to it from beginning to end. And she probably doesn't want

to relive it but I did for her. My recollection is that Mr. Canales asked her some questions about the language in the manual, especially with ectopic -- with respect to ectopic eruption and my recollection is is that she called it a definition and then they had a discussion about whether it was a change or a clarification of that wording. And then on redirect she indicated that these were instructions to professionals as how to score the score sheets and that they were expected to -- that this -these were not written for lay people and that they

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were expected to bring their professional background and education and experience to before in terms of defining the terms and the words in those terms. So, and I -- and I'll also say that my recollection is that during Mr. Canales' cross-examination he and Dr. Altenhoff had a discussion about whether the words had a plain meaning and you can go to the dictionary and look at them. So, this seems to be duplicative of that tender. The other issue in terms of bringing Dr. Altenhoff back as a rebuttal witness, our standard has been that it's -- a rebuttal witness is to address things that couldn't be addressed in the case in chief. In other words, could you have reasonably anticipated the issue with respect to a Medicaid definition versus a nonTexas Medicaid general practitioners' definition. And I'd be reliving the scene in Casablanca when the director of police is astounded to find out that there's gambling going on in Rick's establishment and then he gets paid his winnings. I don't think that there was -- that there is any reason to believe that this was not reasonably anticipated. So for those two grounds, then, the So,

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motion -- or the request to tender the rebuttal testimony will be denied. If you'd like to make an offer of proof at this time, I will allow you to do so. And since you

have a written submission, if you'd like to go ahead and tender that as your offer of proof exhibit, then you can do so with the court reporter. Generally we

would be off the record and we would leave but it's such a short deal, if you'd like to do it now, proceed. MR. MORIARTY: Thank you.

I'm going to mark a document labeled Respondent 88 and it is the State's offer of proof and I'll tender that to the court reporter. I've tendered

copies to the Court and to my opposing counsel. With that, the State rests. JUDGE SEITZMAN: yeah. Actually the state --

We'll take up -- I think with the State resting,

both sides have rested, we've got some exhibit issues to deal with and we'll deal with that. we've got some motions. exhibits, if that's okay. MR. TONY CANALES: Yes, your Honor. Well, And I think

Let's go ahead and deal with

now that both sides have rested, we do have some motions. I -JUDGE SEITZMAN: Let's -- can we deal with

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the exhibits before we deal with the motions? MR. TONY CANALES: Yes, sir. With regard

to the exhibits, your Honor, I'd like to make sure that the Court -- that the record reflects that Exhibits P 1 through 85 -- all the P exhibits are -- we've offered them. I think they are in evidence. And I -- I do not

recall whether the Court -JUDGE SEITZMAN: Mr. Houston's testimony. 76 was reserved pending

And since that hasn't been

admitted, 76 would not be admitted at this time. MR. TONY CANALES: was 86 we reserved. what is it? Okay. P -- you're right, your Honor. But our exhibits go all the way That was my And -- but all -- it

My faithful companions tell me --

That one was reserved.

through P86 and we have a question on P77.

spreadsheet with all the -- with all the HLD score sheets. JUDGE SEITZMAN: to -MR. TONY CANALES: JUDGE SEITZMAN: MR. TONY CANALES: tendered mine to them. Yes. -- update that. Yeah. And I have I think y'all were going

I have not heard from them and

I have no problem at all if they would like to be able

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to offer their own spreadsheet or just correct mine. But I have not heard from anybody. JUDGE SEITZMAN: I thought P77 was

admitted with the understanding that if the parties agreed that there was a mathematical or a transpositional error it would be corrected -MR. TONY CANALES: JUDGE SEITZMAN: Right. -- and a correct version

would be substituted in the -MR. TONY CANALES: corrected. That's all. JUDGE SEITZMAN: into the final record copy. MR. KHAROD: well. -- would be substituted That's my understanding. And I stand to be

That was my understanding as

I think the other -- when we were having that

discussion, another part of the discussion that came out that everyone would be allowed to submit whatever summaries of the score sheets they would feel appropriate as long as they meet the information that's there. I think Judge Egan had mentioned something

about having a -MR. TONY CANALES: MR. KHAROD: Excuse me.

Excuse me. Go ahead.

JUDGE SEITZMAN: JUDGE EGAN:

Let him finish.

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JUDGE SEITZMAN: MR. KHAROD:

Go ahead.

Judge Egan had made a comment

about getting a -- the type of spreadsheet that we had done for -- that Dr. Tadlock had presented -JUDGE SEITZMAN: MR. KHAROD: The tooth by --

-- the tooth by tooth type of

breakdown or the -- and I think what I had mentioned along with that was a component-by-component breakdown of an HLD score. Instead of just giving the top line

score, that each expert had this total as their cumulative store also having a spreadsheet that reflected these are the components for that score. The information is already in evidence in all the score sheets. It would just be a matter of

presenting that in a form for you. JUDGE SEITZMAN: number you want to give that? MR. KHAROD: I can give it Exhibit R89. All right. I cannot -I understand you cannot Do you have an exhibit

JUDGE SEITZMAN: MR. TONY CANALES: JUDGE SEITZMAN:

if there's an error -- if you think there is an error or something. Again, all we're talking about are a

summary of all of the various large pieces of paper that we have that kind of puts it into a score book for

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us to look at, a play by play as opposed to having to watch the videotape all over again. 77. JUDGE EGAN: I don't remember the number. P77 but it's also an So, it's basically

JUDGE SEITZMAN:

expansion of the spreadsheet that came under Dr. Tadlock. MR. KHAROD: Right. So, it's basically But take a look

JUDGE SEITZMAN:

Tadlock expanded to also be like 77. at it.

I mean, we will -- do you have a problem

admitting it -JUDGE EGAN: It's these two. -- subject to -- subject

JUDGE SEITZMAN: to the parties -JUDGE EGAN: No.

JUDGE SEITZMAN: the number again? MR. KHAROD:

All right.

So, what's

That -That you got on your

JUDGE SEITZMAN: new -MR. KHAROD:

The new exhibit would be R89. So, all right. So,

JUDGE SEITZMAN:

subject to you having an opportunity to review it -- I understand that you haven't had it -- it will be

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tentatively admitted as R89.

If you have a -- if you

have an objection and you can't get it resolved, let us know and we'll deal with it in a telephone conference call. MR. TONY CANALES: I want to be sure I cannot agree to

exactly -- it goes against my grain. something I have not seen. JUDGE SEITZMAN: MR. TONY CANALES: JUDGE SEITZMAN:

I understand. R89 I have not seen. I understand you're not

agreeing to it but I'm ordering you to at least look at it. You'll get an opportunity to look at it, confer.

If there's an error and you can't work out or there's a disagreement as to something, you can't work it out, then let us know and we will do it. But we'll tentatively admit an R89 in the general description as described. to being -- I mean, P77 is in -MR. TONY CANALES: JUDGE SEITZMAN: Right. Thank you. R77 is in subject

-- subject to any

mathematical or transpositional error that needs to be corrected. You have another exhibit I believe. MR. KHAROD: Honor. I have R87 here. I have one more exhibit, your This is the contract that the

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Court had requested.

This is the -- I have a CD with

the contract with ACS Healthcare, the TMHP contractor for 2002, 2008. Also on the CD it has the RFPs for

2002 and 2008 as well as the responses to the RFPs. I've marked this as R87. We've given one

to counsel already and I have two for the Court and one for the court reporter. MR. TONY CANALES: JUDGE SEITZMAN: MR. TONY CANALES: it. JUDGE SEITZMAN: All right. So, R87 then I have seen it. Mr. Canales? I have no objection to

will be admitted without objection. MR. WINTER: Judge, may I make a

clarification on this just for the record? JUDGE SEITZMAN: MR. WINTER: Mr. Winter?

Yesterday I think we spoke to

the contract itself offline, off the record is quite voluminous. So, there are six documents on the disk

that was just tendered, two contracts for 2002-2008, one each, the RFPs for 2002 and 2008, one each, from the agency, and the responses by the contractor for both years. There are many change orders and other amendments to the contract that, again, as we stated

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yesterday are quite voluminous that are not included. So, consequently, if somebody should decide there's something else that they want to look at, we can confer and we can make it happen. We just want to make sure

that that's not the entirety of the contract population because, again, it's quite voluminous. JUDGE SEITZMAN: Thank you. Thank you And I think

forth clarification and representation.

we're going to be dealing with the shallow I prefer. But if somebody needs to drill down to the saline level, let us know and we can -- we can by agreement supplement the scope of -- of that. So, with that 87 is admitted. JUDGE EGAN: R87. R87 is admitted.

JUDGE SEITZMAN:

Does that -- subject to any other corrections or redactions that need to be made to the record copy, which you may catch as you go along and which the parties are free to do -- please just advise the opposing party of any correction or redaction that needs to be made. Are there any other matters that need to be -- oh, you wanted to clarify. That's right. You

wanted to clarify with respect to -- did you have another exhibit? It was --

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MR. KHAROD:

There was one thing -- I I

don't know if this is the thing you're referencing. know in one of the exhibits -- this might be what you

were talking about, too -- R45, counsel was kind enough to point out it had some inadvertent, like, other information in there, too. there. MR. TONY CANALES: MR. KHAROD: No. I agree to change. You actually -- thank So, we'll make We'll just substitute in

you for pointing it out to us, too. sure that's correct. JUDGE EGAN: MR. KHAROD:

What is the R -R45, I think the Court's

version of that exhibit -- it's an exhibit I don't think we even used anyway. It just had other papers

from our office that got put in there as well. JUDGE SEITZMAN: There were two

impeachment documents that you wanted to make sure had been admitted for impeachment purposes. MR. KHAROD: reminding me. R19 and R20. R19 are the patient records, I'm sorry. Thank you for

dental roles and radiographs for All Smiles patients and R20 are the HLD score sheets that were completed by Dr. Orr in his review of All Smiles.

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JUDGE SEITZMAN:

And my recollection is --

but in case my recollection is wrong, we'll clarify for the record -- R19 and R20 were admitted for impeachment purposes only. MR. MORIARTY: JUDGE SEITZMAN: Yes, sir. And R45 was admitted

because it's not on the court reporter's list? MR. KHAROD: I don't think we even We just had it --

introduced it, your Honor. JUDGE EGAN: MR. KHAROD:

Oh, okay. It was in our early

submission but we never used it. JUDGE SEITZMAN: or what's -MR. KHAROD: No. I'm just saying if we So, is it being tendered

need to clean that up because there's an extra -there's documents unrelated to this case that got put in the case file. We can just change that out. All right. So, as the

JUDGE SEITZMAN:

parties go through this, if -- if there is an agreed additional document that you think will be helpful either to the Court or to the parties in briefing and you reach agreement on it, just please let us know and as long as it's by agreement we will have no problem supplementing the evidentiary record with that because

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I realize, as you go back and you start working on this stuff, you may realize that an additional summary or reconfiguration of the data may be helpful. Mr. Canales? MR. TONY CANALES: I can't recall if we

said it on the record or off the record regarding R2, R6 and R -- and they're not -- they're not admitted. JUDGE SEITZMAN: admitted. MR. TONY CANALES: JUDGE SEITZMAN: admitted. JUDGE EGAN: Not admitted. Yes, sir. All right. Does that Thank you very much. And, again, P76 was not R2, 6 and 10 were not

MR. TONY CANALES: JUDGE SEITZMAN:

take care of all the evidence at this point? All right. Mr. Canales? MR. TONY CANALES: colleague make that. MR. WATKINS: is -JUDGE SEITZMAN: MR. WATKINS: Identify yourself. First motion, your Honor, I'm going to have my Let's go to motions.

Tommy Watkins.

We're here on an April 4th, 2012, hold to

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determine whether or not the hold was justified when it was issued. The evidence before the Court now, after

everybody has closed, is that Dr. Tadlock was not hired until after when the -- when they went back and tried to hire somebody to justify the thing that they had already done; and, therefore, could not possibly legally serve as a credible allegation of fraud as of April 4th, 2012. Dr. Evans was not called as a witness

after he was discredited in a previous hearing and, therefore, everything that he relied upon is not before evidence of the Court. Mr. Stick has testified that other than stuff that he was aware of but there were no patients, there were no parents, there were no other people who testified live here. So, everything he had would have

been hearsay based upon what he heard or what was rumor. And, therefore, that does not justify a There's limitations of

credible allegation of fraud.

the petition in which they have tried to introduce claims and evidence and issues that are outside the petition and should not be properly admitted. The alleged program violations might be relevant for a board complaint. They might be

represented for trying to get a repayment but it does not rise to the level as the Court has heard here today

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to a credible allegation of fraud, which would justify the hold. The idea that a hold is simply a status quo and has no affect, of course, is obviously not right. It affects the rights of the people here to And we move to dismiss the

continue their practice.

complaint based on the inadequate allegation of credible evidence of fraud to justify the hold. JUDGE SEITZMAN: Okay. Motion's denied.

Any other motions? MR. TONY CANALES: Yes, your Honor.

We would like -- we would for the Court, really, to consider as pleadings that have basically been abandoned. The first complaint under the

complaint is called petitioner failed to maintain records and other documents that -- and we would like -- I'm using the same motion for director. I

guess motion for one for judgment I guess on that issue and then the other one is the one about -- I believe it will be the complaint that says that based on credible allegation of fraud MFCU -- I think that's Medicaid Fraud Control Unit -(Court reporter interrupts.) MR. TONY CANALES: investigation. Opened and continues an

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JUDGE SEITZMAN: said the Medicaid -MR. TONY CANALES: Unit. JUDGE SEITZMAN: MR. TONY CANALES:

MFCU.

And I think he

Medicaid Fraud Control

-- Fraud Control Unit. And so, we would like

to be able to also record to a judgment on that -- a dismissal on that one. JUDGE SEITZMAN: The Court will deny the

motions at this time but as the Court -- as the judges go through the pleadings and the evidence, we will deal in the -- in the decision with any pleadings or -- that have been abandoned as well as anything that hasn't been proved up. MR. TONY CANALES: And the last one is the

fourth paragraph talks about petitioner received payment for services in items which are not reimbursable. Specifically talking about the age of We believe that that's also a

under 12 years of age.

matter we'd ask for judgment. JUDGE SEITZMAN: the decision as well. Good thing I write notes because I forget. Sometimes I forget that I wrote a note. We talked earlier while we were off the That will be taken up in

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record that there are -- there is physical evidence, the molds, the actual X rays, other items that may have been tendered to the intermediary or recovered by the OIG investigators when -- with the files. Let me just state this for the record and make sure that the parties agreed; and if I get it wrong, I know y'all will tell me. But the physical

molds, the X rays, the other hard original evidence will stay with the parties, which is where it has been. Some of it, I think, is with OIG. also with -- with Antoine. parties or their attorneys. The Court and the record copy will reflect the paper and the digital, electronic images that have been submitted. I just want it noted for the record so There may be some

That'll be kept with the

that if some later reviewing entity or Court needs access to the physical evidence, the hard mold, the actual mold, that there'll be something in the record that indicates where it is. And do you think the parties will just be able to provide the Court something to indicate for what they have in their possession? MR. HARGROVE: and then send it to y'all. MR. TONY CANALES: Yes. We can make an inventory

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JUDGE SEITZMAN: helpful. Thank you.

Okay.

That'll be

And that way there's just a tracer as to where that evidence is. All right. We thank you. We're all tired. It's Friday.

Everybody wants to go.

Is there anything that we need to take up before we adjourn the hearing? Pursuant to the off-the-record discussion we had earlier, the parties are going to confer, work on a proposed briefing outline and a proposed schedule. As we indicated very early on, I think we both prefer simultaneous filings of initial briefs and simultaneous filings of closing briefs. That we -- Judge Egan and I will also confer on certain issues that we want briefed and to the extent that we don't find it in your proposed draft, we'll talk about it and we'll have a -- at least one conference call to -- to have this discussion. it's not going to be today and it won't be Monday. we'll give you -- give you a week or so, you know, a couple of weeks to talk about it. Stephanie indicated earlier that it'd probably be at least two weeks before you get your record copy. But So,

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So, understanding everything kind of begins to flow from that in terms of the briefing schedule, that's fine. Okay. else? MR. HARGROVE: JUDGE SEITZMAN: MR. TONY CANALES: JUDGE SEITZMAN: I'm good, Judge. Mr. Canales? No, sir. Thank everybody who sat Mr. Hargrove, did you have anything

through these long proceedings in those wooden chairs. Thank you very much. And we are finally adjourned and off the record at 1:02. (Hearing concluded)

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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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