One-on-One with Dr. Michael DiTolla: Interview of Dr. Roy Shelburne
Dr. Roy Shelburne practiced dentistry in a small town in Virginia for more than 20 years. His practice was running normally until an FBI investigation, jury trial and 19 months in prison significantly altered the course of his career. The first time I heard Roy’s story, I was blown away. There are some good stories out there in dentistry — some interesting stories, some fascinating stories — but I had never before heard one like Roy’s that had me sitting on the edge of my chair with my eyes open wide. He shared everything he’s been through with me in this recent interview, in the hopes that his nightmare doesn’t happen to you.
Dr. Michael DiTolla: Welcome to the pages of Chairside® magazine. I’m glad you’re so open to sharing your story. For our readers who aren’t familiar with you, why don’t you tell us a little bit about your background?
Dr. Roy Shelburne: My pleasure. I appreciate the opportunity to be able to share my story. Even though it’s something I’m certainly not proud of, I think it’s important to share because there are many things I learned in the process that I consider to be essential information. As professionals, we need to be aware of the dangers that are out there. So thank you for inviting me.
In terms of my background, I was born in the western part of Virginia, in a small rural area. I went to the University of Virginia as an undergraduate and got my degree in biology and religious studies. I then applied to dental school and was accepted, entering in ’77 and graduating in ’81. I came back directly from dental school to my hometown, set up my practice in my grandfather’s hardware store and practiced there without any great notoriety until October 2003, when things changed drastically.
MD: What happened that October?
RS: I had traveled to the American Dental Association meeting in San Francisco. Thursday night, I flew in from the eastern part of Virginia, and I was very excited about hearing Rudolph Giuliani, the keynote speaker, the next morning. At that meeting, my phone began to vibrate, but I was so into listening to what Giuliani was saying, I didn’t notice. The gentleman sitting next to me gave me a little nudge and said, “Hey, I think your phone is vibrating.” I opened my phone to find it was my wife calling, which was unusual. She knew I was in the meeting and wouldn’t normally interrupt.
I made the decision not to answer it because I didn’t want to get out of my seat and interrupt, so I closed the phone and waited until the presentation was over. Giuliani was amazing.
As everyone was filing out of the auditorium, I opened my phone and dialed my wife. She was at my daughter’s university, Virginia Tech, visiting that weekend, and she had gotten a call. The first words out of her mouth when the phone finally connected and she began to speak were, “Roy, are you sitting down?” And I said, “Debbie, do I need to be?” She said, “Roy, you absolutely need to be.” So I sat down as everyone was filing out, and she began to share with me that James, our custodian at the office, had driven by the office and found the FBI there. They had battered down our back door and were confiscating all of our records.
MD: So this was not during business hours?
RS: It was not. It was on a Friday. There was nobody there at the office. And, of course, I was gone and my wife was gone. So after trying to make her feel better about the whole thing but never believing it was going to be OK, I sat there and thought, “Well, what am I going to do?” I don’t even know what possessed me to do it, but I called my office. And, lo and behold, someone answered on the other end. A very strict, stern voice answered on the other end of the phone. I said, “Hello, who is this?” The voice on the other end said, “Who’s this?” And my response was: “I’m Dr. Shelburne. I own the building that the phone you’re speaking on is in. Can you tell me what’s going on?” He took a deep breath and said: “I have executed a search warrant. You’re a target of an investigation.”
At that point, I was stunned, confused and terrified. I didn’t know what to say, so I asked him if I needed an attorney. He said, “I can’t advise you whether or not.” I asked him what was going on, and he said, “You’re the target of an investigation.” So I said: “Well, what’s triggered this? What’s this about?” And his response — when I say it today, it still makes the hairs on the back of my neck stand up — his response was, “Doctor, you know what this is about.” I was clueless. I had no idea whatsoever.
So I hung up the telephone and tried to figure out what I was going to do. Even though I had been in San Francisco less than 24 hours, I packed up, went to the airport and flew home. I got home around 8:30 or 9 that evening to find a number of black, unmarked vehicles — Suburbans and the like — around my building with crime scene tape. I parked across the street and watched officers carry a couple of boxes out. I didn’t want to go in. I didn’t want to be a part of that. So I drove home, called my staff and I asked them, “Do you guys know anything about what is going on?” The response was, “No.” We met the next day and tried to figure out what was going on, but nobody had a clue.
MD: It seems like it would be hard to imagine why you’d have crime tape around your office. And your employees were just as dumbfounded as you were?
RS: We were all completely clueless. We were trying to figure out what we should do. We talked about it and decided that we would meet in the office Monday morning and talk a little bit more about what we needed to do to go forward, or even if there was a forward direction for us anymore. We had no idea. I went to church the next day and asked that we be supported. The search-and-seizure was actually conducted on the weekend that our county has what is called the Fall Festival. The next day there was a parade and vendors set up all over town. The politicians were marching in the parade because it was October, the month before the elections. The raid was in the newspaper on Saturday after the search-and-seizure on Friday, so everybody knew. Guess who was the topic of conversation during that festival day?
MD: I’m going to guess that you were all of a sudden made a guest of honor.
RS: I think we were probably roasted by most of the individuals. Interestingly enough, on Monday morning when we had our morning huddle as we normally do, we really expected nobody to come in. My practice was in the largest town in the county. The population at that time was about 1,800; the population of the county was about 18,000 — very rural. So, like I said, it was a small area and the news traveled very rapidly. We didn’t have any records, but we had our computer system. Our clinical records were paper at the time. But we had treatment plans, and we had our patient schedule on the computer, so we knew who was coming in and what had been diagnosed. We hoped that we might have one or two patients come. But that Monday morning every single patient came. It was phenomenal. The response typically was: “Doc, we don’t know what is going on, but we trust and believe in you. So we’re good with this.”
MD: And in a town of that size, everyone had heard about it, right?
RS: Oh, everybody knew. It was common knowledge in the community and the topic of conversation everywhere. Most of our patients would make reference to it during their appointments, and we welcomed that. If they didn’t mention what was going on, we would address the issue to let them know that we had no idea what was going on and to let them know we would cooperate in any way we could. So that’s the way it started.
Something that actually gave me a good sense of what my life was going to be like was on that first day, when my pastor, who was across the street at the church, came in after lunch and asked my receptionist if he could speak to me. When she came to get me, I walked out thinking, “Well, that’s really nice.” I led him back to my office and he said, “Doc, I’ve got bad news.” It’s never good news when your pastor says he has bad news, by the way. He told me there were a couple of FBI agents who came by the church office that morning with a warrant, asking for the tape of the previous day’s church service. They wanted to know if I said something during that service that might have incriminated me. So that was how my life changed in another way. There were no areas of my life that were left unturned. Again, I don’t want to indict the government. They didn’t overstep their bounds. They didn’t do anything they weren’t entitled to under current law. So it wasn’t like they did anything to me that they didn’t or wouldn’t do to anybody else.
MD: Wow. When they went to the church, were they looking for a confession?
RS: They didn’t know what they were looking for. Evidently, they had gotten a call from somebody who had told the officers that I had addressed the church. Whoever tipped them off didn’t know what I had said. So they were just trying to figure out what it was that I had shared, I guess to make sure I hadn’t said something incriminating.
During the course of the investigation, a year or two into it, I got a call from one of my children. Three teams of agents simultaneously had gone to the university bursar’s office and had gotten my children’s schedules. They went to their classrooms and flashed their badges to the professors, saying they needed to interview these students. My children called later that day to let us know what had happened. I asked if they would come home that weekend so we could talk. You know, as a dad, when it comes to affecting my children, it’s a whole different issue.
MD: Just soul-crushing, the anger I’m sure you felt. You still really didn’t know what was going on, so you must have almost exploded.
RS: I looked at my kids and I said: “This is what’s going to happen: When it starts to affect you negatively, I won’t be able to tolerate this. I’m going to throw myself on their mercy and plead guilty. I want this to be over with.” My daughter stood up with her finger in my face and said, “If you do that, I’ll never forgive you because you’ll be admitting to something that we know you’re not guilty of.” My response to them was: “This is the deal: If I ever see this situation get to the point where it affects you negatively, where you’re not going to be able to accomplish what you’re capable of accomplishing, or if you use it as an excuse to not do something that you’re capable of doing, I’ll pull the trigger. I won’t be able to stand that.” So we as a family locked arm-in-arm at that point with the understanding that life was going to be tough. It’s hard to live under such extreme scrutiny and have people look at you differently, judge you and wonder about you. The bottom line is, you know on the inside who you are and about your character. Knowing that, you can move forward. It doesn’t matter what people say or what people think if you are true to yourself and to the people who love and care about you.
MD: How did you finally find out what the charges were?
RS: That was at the indictment, almost three years to the day later. It was Oct. 24, 2003, when the search-and-seizure happened, and then the indictment was in ’06, on October 27. It was a Thursday evening. I had just come home from work and changed from my regular office attire into my regular home attire, which is a pair of sweatpants and a T-shirt. It was about 5 p.m., and there was a knock on the door. The officer that I had spoken to on the telephone that morning while I was in San Francisco at the ADA Annual Session was at my door and said, “Dr. Shelburne, I’m here to arrest you.” Prior to that I didn’t know what the charges were. I have since learned that they went to the grand jury twice. The first time they went to the grand jury, they weren’t given an indictment. The second time, they were. I was indicted for health care fraud, racketeering, and money-laundering and structuring.
MD: So for three years, from 2003 to 2006, you just continued to practice without having any idea of what was going on with the investigation?
RS: Yes, I had no idea. Occasionally, I would hear from a colleague who was interviewed, or a patient who was interviewed, or a business that I had conducted some kind of transaction with would call and say, “Hey, by the way, the FBI was here and they subpoenaed us.” So I knew occasionally that they were doing a bit of investigation. Interestingly enough, about a month prior to when I was indicted, I had a conversation with my attorney where he said, “Doc, it’s been almost three years and it doesn’t appear that anything is going to come of this.” I guess rule number one is to never trust your attorney. But, sure enough, something did come of it.
MD: You would expect that if something was going to happen, and if there was something horrible going on in your office, that it would have come down a lot faster than that. Don’t you think?
RS: We certainly thought so. The officer who came to arrest me came with seven other officers, four other vehicles and three flatbed car haulers. When you’re charged with racketeering and structuring, they confiscate everything you own. The flatbed car haulers were there to take our vehicles. My bank accounts were all seized. We hadn’t had an opportunity to defend ourselves or to argue in any way because the racketeering and money-laundering statutes allow the government to do that. Like I said, they didn’t overstep their bounds at any point.
So as I was being read my rights, my wife was standing behind my left shoulder with her right hand on my shoulder and the phone began to ring. My wife turned to answer the phone, and the officer who was reading me my rights said: “Mrs. Shelburne, you can’t answer that telephone. We can’t let anything interfere with this process.” So she turned back around and let the phone ring. The answering machine picked up and my daughter was calling. She was very distraught and said: “Mom, Dad, they’re here and they’re taking my car. I don’t need my car, but are you guys OK? What’s going on? I know there is something going on. Please, please, please call me.” So not only did they take everything we own, they took our children’s vehicles as well. As I was driven to the jail to spend the night in custody, I thought: “OK, I’m arrested. I have nothing — no money — to be able to mount a defense, to pay an attorney, to move forward at all in this. Will we make it? And how in the world will we do that?”
MD: This is how I would expect a mob boss to be treated.
RS: The racketeering and money-laundering statutes were actually established to punish organized crime. But subsequently, they have been interpreted so they would apply in any situation where a group of individuals defrauded the government in any way. So, literally, they could have arrested the janitor, all the staff members and myself as well. In subsequent cases, they actually have indicted staff members as well.
MD: Wow. So did you go off to jail that night?
RS: They took me to jail, and I spent the night in jail. The next day, I was arraigned. They read the charges, and after the prosecuting attorney read the racketeering and money-laundering statutes, the judge said, “You understand that those statutes were never intended to be applied in a situation like this.” Then there was silence for a couple of seconds. “However, it has since been interpreted to be applicable, so I’ll allow it.” I spent the night in jail, and the next day they transported me to the courthouse. I was in the basement. They took me upstairs to a courtroom — a very, very intimidating place. The prosecutors were on the right-hand side as I walked in, at their desks. There were three of their attorneys there, and on the left-hand side there was my attorney and his paralegal. I came in, sat down, and he turned to me and said, “I’ve got good news and bad news.” And I thought, “I think I got the bad news already.” He said, “The good news is that we’ve been able to arrange bail; the bad news is in order for them to agree to bail, I also had to agree that you’ll surrender your license to practice dentistry.” So at that point, all the work and preparation I’d done for all those years — my future as I thought it would always be — disappeared instantaneously.
MD: What did being released on bail and your dental license have to do with anything?
RS: The whole argument was that I had practiced in a way that was inappropriate, and they wanted to put an end to that immediately. The prosecutor established the charges, and the judge asked of the matter of bail and if everyone had agreed. The prosecutor said: “In fact, we have. We’ve asked for bail in this amount and we’ve asked that Dr. Shelburne surrender his license.” At this point, all that the judge would have had to do was turn to my attorney and ask, “Is there any objection?” And my attorney would have said no, and my license would have been gone. However, at this point, the judge looked at the prosecutor and asked if the Virginia Board of Dentistry had been made aware of the situation. The prosecutor said yes, they had been notified. I had been in contact with them as well because I wanted to make sure that I wouldn’t be doing anything that would be inappropriate as far as my license goes. The board said I could practice not only until I was found guilty, but up until I was sentenced. The board was very well aware. When the judge asked the prosecuting attorney if the board was aware, he said, “Yes, they are.” The judge looked at the prosecutor and said, “So you’re asking me to supersede the power of an existing government agency in Virginia who is charged with determining whether or not practitioners are capable of practicing dentistry appropriately in the state of Virginia?” The prosecutor looked at him and said, “Well, I guess I am.” The judge then said: “I’m not going to do that. This man can practice until the board takes action.” So I was providentially spared my license. I was able to practice. Coincidentally, the best year I ever had professionally was the time from after I was indicted to before I was prosecuted. So to those people who say any publicity is good publicity, I’d have to agree.
MD: That’s unbelievable, especially in a small town. I’m sure a couple people saw you get dragged out of the house that night, and that word probably spread like wildfire.
RS: It actually made national news — something I definitely am not proud of. It was not only on television and radio locally, but it went to the Associated Press. I have a good friend who practices in New Jersey who gets The New York Times. My story was in The New York Times, so he called to see what was up.
MD: That kind of advertising is difficult to buy! So you have a good year after that. How long is it until the trial starts?
RS: The trial actually began in March 2008. So it was two years from the indictment to the time I was actually tried.
MD: What a slow process. It amazes me that it took three years to get it going, and two years for the trial. How long did the trial last? Can you walk me through that situation?
RS: The trial lasted for nine days. It was the longest nine days of my life, but it gave me amazing insight into what is absolutely necessary to protect and defend your practice in the event that your treatment is challenged. You know, the interesting thing is I was very naïve in a lot of areas. I learned a lot throughout the process and since then as well. For example, let’s say five dentists were given exactly the same patient records and patient to examine. How many different treatment plans would be generated from seeing that same patient?
MD: Well, I’d say if it was an adult who had 10 to 15 amalgams and a couple crowns, there’s no way you’d find an identical treatment plan between the five of them. They’d all plan something different. Certainly some of the people are going to want to replace two of the amalgams, some will want to replace four, some seven. I mean, it’s an art, not a science.
RS: Absolutely. During the trials for the testimony, finding an expert witness, a licensed dentist who would disagree with the treatment I provided — either its necessity or how it was done — was always possible. We thought we had an expert witness who testified on our side that justified everything I did. But they would have experts that would testify that: “No, it shouldn’t have been done that way. It didn’t need to be done at all. It was done inappropriately.” So it was like “he said, she said.” For example, one of the issues was unnecessary treatment. They had an expert that testified that if the decay was not evident on a radiograph at the CEJ, and this was for an occlusal amalgam, that they felt it was not necessary. So in order for it to be at a point where it needed to be restored, it needed to be evident on a radiograph.
MD: Occlusal caries is pretty big by the time you see them on a radiograph.
RS: Exactly. But then again, the witness is a very conservative practitioner. As far as the jury goes, you know they’re looking at making some pretty significant clinical decisions, and they come with preconceived notions. So, for another example, one of the dentists said that if a primary tooth was significantly decayed, it needed to be extracted; it did not need to be restored. I did a lot of pulpotomies and stainless steel crowns in order to maintain the dentition so a child could eat appropriately and the space would be spared for the permanent erupting teeth. But how many of our patients have ever said, “It’s just the baby tooth, pull it?” So a jury is that patient who, number one, doesn’t see the value of the primary tooth, and number two, their tax money is paying for a service for a child that’s not theirs. Maybe they’re struggling to have their child’s teeth taken care of. So their tax money is going to pay for a service for something that an expert said absolutely was not necessary. There was an expert witness that testified that they had never had an endodontic procedure fail.
MD: I don’t want to sound like that witness, but I have not had an endo procedure fail in the last 10 years. Here’s my secret: I haven’t done one. And that’s the only way that I can say that I haven’t had one fail in the last 10 years.
RS: Right. When that expert testified that they had never had an endodontic procedure fail, that’s when I gasped, and my attorney looked at me like I was crazy. During the next break, he said, “Why did that strike you as funny?” And I said, “Endo procedures can fail and often do.” And he looked at me and said, “Really?”
MD: So what were the actual charges, then?
RS: I was charged with one case of health care fraud. They brought 119 examples so the jury would only have to find me guilty on one of those 119 to find me guilty altogether.
MD: Oh, come on! Really?
RS: The interesting thing is, the jury was never made aware of the amount that I was overpaid, or the amount that I wasn’t entitled to. Did we make mistakes and bill for things inappropriately? We did. MSN did a review of all the poorest counties in the United States. In Virginia, the county that was designated poorest was Lee County. Would you like to guess which county I practiced in?
MD: I’m going to go with Lee.
RS: Ding, ding, ding! You’re right! So over 90% of the children in the area had Medicaid. This was my home. Those were the people that I saw in the store. Those were the people that I went to church with and felt obligated to provide that service for. In an underserved area, oral hygiene is not a big priority. Plus, we had a lot of methamphetamine drug use in our teenagers, so we would try to find help for them, get them clean and then go ahead and restore their teeth. So we had a pretty significant Medicaid population. Over the course of six years — they go back six years because that’s the statute of limitations on fraud — we had been reimbursed by Virginia Medicaid for $3,500,000. Of that $3,500,000, would you care to wager a guess of how much we got that we were not entitled to?
MD: I’m going to go with $3,000,000. I thought you were really good at what you were doing. No, I’ll be much more conservative, I’m going to say $200,000.
MD: I like that you know it down to the cents. So $17,899.57 out of $3.5 million?
RS: Yeah, that’s 0.05%. I thought that was a pretty good percentage, but hey, that’s just me. Like I said, the jury is never made aware of that amount. That is something that is determined during sentencing. The prosecution bears the responsibility of establishing what that amount is. We didn’t dispute the amount at all; in fact, it was probably the right amount. What the jury didn’t know is that the amount that we determined that we could have billed for and then been paid for was actually in excess of the amount that we got that we billed for and weren’t entitled to.
MD: Wow, this is starting to feel like one of those movies where the walls just keep closing in.
RS: You know, the thing that I believed the whole time is: Anything that I got that I wasn’t entitled to I would more than happily return; and any penalties, anything I needed to pay back I’d be happy to. I was literally never given that option. The best option that I was ever given to stop the proceeding, or to plead guilty, was restitution of nearly $300,000 and three years in prison.
MD: So how long did it take the jury to deliberate?
RS: Two-and-a-half days. About two hours before they came back with the final verdict, they sent a question out to the judge. Anytime a jury questions the judge, both the prosecution and the defense are given a copy of the question. Their question was, “If we find him guilty of racketeering and money-laundering, do we have to find him guilty of health care fraud?” Unless you’re guilty of health care fraud, you haven’t committed racketeering or money-laundering, so it was clearly evident that they didn’t understand the precedent.
MD: As they were getting ready to read the verdict, what were you feeling? Did you have a sense for which way it was going to go?
RS: Oh, absolutely. Since they asked that question, it was pretty apparent that I was going to be found guilty on the racketeering and structuring, and since they couldn’t find me innocent on the other — the reason for the question — I knew at that point that I was going to be found guilty. There wasn’t a whole lot of leeway. The scariest part was that when the verdict comes in, you don’t know whether you’ll be taken directly to prison. You can be remanded into custody immediately, so that you can’t put your affairs in order. You can’t really say goodbye; they cuff you and they take you away. So I really didn’t know at that point whether I was going to be remanded immediately.
Interestingly enough, during sentencing — I told you there were a lot of providential things that happened, but I’ll share another one with you — the Supreme Court had, four days prior to my scheduled sentencing, defined a single word in the money-laundering statute. We had gotten a copy of that Supreme Court decision. As my attorney explained, it appeared that the definition of that word made the money-laundering statute no longer applicable to my situation. Six of the nine charges were money laundering charges. So he filed a motion to dismiss the money-laundering charges based on the new definition of the word “proceeds.” Going into sentencing, we didn’t know how the judge was going to rule. When the judge gave his reasoning and his sentence decree, he started out by saying, “I’m going to deviate from the mandatory.” The “mandatory,” when I went in, was established in a pre-sentencing report that the court put together outlining the charges and some of the enhancements they had asked for. The pre-sentencing report established the sentencing guidelines — the time I would serve. These guidelines are established using a numerical formula that takes into consideration the offenses you’ve been found guilty of and any enhancements that the government deems appropriate. It assigns a number of years to the sentencing. There’s a range, and before ’06, there was no option; the judge had to sentence within that range. In ’06, the court could deviate, but the judge had to find a significant reason to justify deviating from the established range.
So, I walked into sentencing, and the range was a minimum of 15 years and a maximum of 22 years. When the judge started by saying he was going to deviate from the guidelines, my attorney on my right-hand side groaned, and his paralegal on my left-hand side began to cry. That’s never a good sign. I since found out that the judge had not deviated downward before. When he deviated in the past, it was always upward. So they thought that I was going to go for more than 22 years. But the judge in his deliberation took out one of the enhancements, halved another and left one in place. He agreed with the argument that the money-laundering statute no longer applied, so six of those charges were taken out, which reduced the minimum sentence to 47 months. The maximum was about seven years. In his deliberation, he said, “Although there was significant evidence presented by either side that would have supported the verdict either way, I will not overturn the jury’s verdict.” Instead, he said he would modify the sentencing appropriately. He actually cut it down to 24 months. In fact, he did me a favor. Had he overturned the verdict altogether, the prosecution would have gotten an automatic appeal. I would have had to go through the whole process over again. I would have been in prison waiting on the government’s appeal to begin. As you observed, it takes a very long time for a case to move through the court system, so I would be in prison a minimum of the 24 months, and then I could have faced the music all over again.
Incidentally, the definition of the word “proceeds” in the money-laundering statute was later changed back by the government so that it would again apply to my situation. That was four weeks after the fact. So I had a four-week, four-day window of opportunity where that statute did not apply to my case.
MD: You finally caught a break in this whole thing! So you ended up doing two years?
RS: Yes. You have to serve a minimum of 85% of your sentence, so I spent 19 months in federal prison and two months in a halfway house. Coincidentally, I got my renewal from my ADA/DDA licensure while incarcerated in Manchester, Kentucky, and I sent them back a note saying, “Under the circumstances, I can’t afford to pay the renewal fee, so I’ll have to let my membership lapse.” I got a letter back from Terry Dickinson, executive director of the Virginia Dental Association. He said that under the circumstances they would keep my membership active. So I was an active member of the dental association even though my license was suspended. In Virginia, there is a mandatory revocation if you’re found guilty of an offense that involves the practice of dentistry. That mandatory minimum time is three years. As I mentioned before, I had a conversation with the Virginia Board of Dentistry during that period because I wanted to be certain of my rights. When I told them I was being convicted, they told me I could actually continue to practice until I was sentenced because there was a chance that the verdict would be overturned. So they wouldn’t revoke my license until after the sentencing. They told me that in order for the board to revoke my license, it would take an action of the entire board, and their next full board meeting wouldn’t be until after I was sentenced. The next thing they said was very kind to me. They said they had had situations where people voluntarily surrendered their licenses prior to formal action, which would start the clock ticking. So I chose to surrender my license on July 14, 2008.
I mentioned my grandfather’s hardware store building when we started out today. Well, my son graduated from dental school in May 2008, and I surrendered my license in July 2008. So he became the owner and operator of my practice and is still in that hardware store building today.
MD: That takes a little bit of the sting out of it. That’s fantastic!
I’ve only known you on the other side of this whole trauma, and you’re one of the more soft-spoken, thoughtful people that I’ve met in the last couple of years. It sounds like you went through everything with style and grace. I don’t know that I would do so well going through the same thing. So what’s the takeaway for you? What can dentists do to avoid this type of situation?
RS: It is important that you know the definition of intent. The legal definition of intent includes situations where you would submit a claim knowing it was inappropriate, for services that you didn’t provide or on a patient that you never saw. But it also includes those instances where a doctor acts in blind disregard toward the truth. There’s no such thing as ignorance. There is no such thing as an innocent mistake if it continues to happen over and over again. You need to establish systems in your office to identify errors and correct them. Otherwise, it’s considered blind disregard.
And number two, you need to keep clinical records in a way so there is no question as to what you did and why you did it. Those records can testify for you in court; they will protect you. I had a case where I was being cross-examined on the witness stand, and one of the issues was about a simple restorative procedure. My attorney was trying to establish to the jury that I was thorough, and what I did in order to determine that treatment was necessary — that I didn’t do it unless I deemed it absolutely necessary. He said, “Dr. Shelburne, can you explain for the jury what you do to determine that treatment is necessary?” I went through the litany. I said, “First, we sit the person down, we take a close look at what’s going on visually, then we use an explorer to feel the area. A soft area would indicate there’s some disease there that needs to be treated. We look at our X-rays to be able to determine…” I just went through the whole litany of what you do to be able to determine what is necessary.
And then it was the prosecutor’s turn. He identified the patient that we had talked about when I was being examined by my attorney. He said, “Dr. Shelburne, you do an amazing job of describing what you typically do to be able to determine that the treatment is necessary.” (By the way, it’s never a good thing when the prosecutor compliments you — you know the hammer’s about to drop.) Then he nodded to his audiovisual person, who flashed the record on the screen for everybody to see, and said, “Dr. Shelburne, is this the patient in question?” And I looked at the record and I said, “Yes, it is.” And he said, “Is this the exam date?” I said, “Yes, it is.” He said, “Is this the treatment date?” And I said, “Yes, it is.” So he said, “Doctor, you did an amazing job describing what you typically do to determine what treatment is necessary.” He said, “For the benefit of the jury and this court, could you point out, in that clinical record, where you made notation that you did any of those things?” Looking at my treatment record, I had listed under the services provided section: evaluation. There was nothing that substantiated what I used to be able to determine treatment was necessary.
MD: So you’re telling me that if I make an entry in a chart that says, “PFM #3, shade A2, 2 carpules of 2% xylocaine, 1:100,000 epi,” that I’m not noting all that I should be? It should say, “PFM on #3 being replaced due to recurrent decay on buccal margin and chipped porcelain”? Or that for something small like occlusal composite, you need to write down “mesial pit found to be carious with explorer”?
RS: I do. And the reason for this level of documentation is that I’m very involved in the insurance side, not just Medicaid now. I pay particular attention to the areas of concern and treatment being challenged by carriers in the audit process. The bottom line is: If the treatment record does not justify the treatment provided, often the carriers ask for their money back.
For example, looking at a typical claim submitted for a crown, the written justification for that crown goes in the remarks section on the claim form. But in recent audits, I’ve noticed that the auditor looks at a copy of the patient record and the insurance form, and many times they aren’t the same. The information necessary to justify the crown is on the claim form, but it’s not in the clinical record. What I’m seeing is that the consultants are saying that the treatment is not justified by the clinical record, and they’re asking for money back.
So, again, the clinical record is a legal document and should contain the information necessary to justify treatment. After the attorney said to me: “You did a fantastic job describing what you did. Can you prove it?” I had to admit that it wasn’t there. At the corner of his mouth, a wry smile went up, and he turned to the jury and said, “Well, now that you find yourself in this position, I guess we’ll just have to take your word for it, won’t we?” Had I made an appropriate record — recorded the appropriate information — that record could have testified. I feel that it would have made a significant difference in the outcome.
What we’re seeing today when audits are being conducted (they’re becoming more and more frequent because the insurance companies are very concerned about maintaining profitability) is if one document does not support the other document, there’s a problem.
Another area under scrutiny is radiographs. For them to be reimbursed appropriately, there are three necessary components. Number one, the need for the radiograph must be noted. The justification for taking an X-ray should not be because the insurance is going to pay for it. That does the patient a disservice, but it also is not going to be reimbursed. There needs to be adequate justification for taking the image. Second, there needs to be evidence that the X-ray was taken. Third, there needs to be some notation that the image was reviewed. Those three pieces are needed to justify reimbursement for the radiographic image. This is what I’m doing. I’m trying to spend the rest of my career making sure that people understand.
Incidentally, a lot of people ask if I got my license back. Three years afterward, in July 2011, in order to prepare for the application for reinstatement, I had completed 423 hours of continuing education in the three years since my license was revoked. I went to Virginia Commonwealth University and spent 61 hours at the university rotating through the different departments so they would be able to observe me and provide documentation to the board that I was actually capable of practicing dentistry appropriately in Virginia. For the doctors out there, I took my boards over again — and passed.
MD: What year did you take the boards again?
MD: Had they changed much since you took them in 1981?
RS: Yes, they had changed significantly. It was very different.
MD: I can’t imagine doing that again later in life. That’s crazy!
RS: It is what it is. Like I said, I thought it was important that I do that to justify myself to the board. The next meeting of the full board was actually on Dec. 1, 2011. I went before the board with my information, requesting reinstatement. I had gone online to find out if anybody had been reinstated, and I couldn’t find anything on the database. I think it had been four years since anybody had actually had their license reinstated. So I didn’t have a lot of hope that they would do that. I presented the evidence and went outside. They deliberated for a little over an hour, and I came back in and sat down. The chief of the board said, “We have, as a board, decided to reinstate your license.”
RS: I was reinstated. I am licensed to practice dentistry. I honestly don’t have time to have a full-time practice. So I don’t. I travel, write and consult in hopes of trying to help other people. But it’s nice to be able to practice if I want to.
One of the things that I certainly want to share with your readers is: Never take for granted what a gift it is to be able to practice dentistry. In losing that, I can tell you I had taken it for granted every day. Having been on that side, never appreciating it, I certainly have a greater appreciation for what we do. I would encourage everybody to take the time to appreciate what an amazing gift we have as dentists to be able to impact other people’s lives and make them better as a result.
MD: I agree that it is a privilege to be in this profession. I guess there is sort of a subconscious feeling that once we have that license, it’s never going to be taken away from us. I certainly don’t know many dentists who are worried about unintended or unintentional insurance billing errors being the thing that might have the potential to take their license away. I know you do mock audits where you go through and look at charts to see if they’re meeting the standard they should be.
RS: Absolutely, I do that. Then I make recommendations in terms of improvements that I see would be beneficial, and then I give a basic outline and an action plan on how to implement those. You’ve indicated that it takes a lot of time to be able to do that, but I advocate educating staff members so that you can have an ongoing dialogue with your assistant or with your hygienist, and just talk about what you’re doing and let them make notations during the process. It may sound like it is going to be difficult to make the implementations I have suggested, but when you get the staff involved, educated and up to speed, it actually makes the recordkeeping process a whole lot easier and quicker. It actually improves reimbursement as far as the insurance claims go, and it absolutely reduces the risk.
MD: I haven’t seen any high-profile cases like this since yours. Maybe your experience and your willingness to share it will keep other dentists from going to prison and having to suffer the same fate you did. Thanks for being with us today, and for your willingness to share your story and be so honest about it.
RS: My great pleasure! Like I said, if I can prevent what happened to me from happening to anybody else, it will have all been worth it.
To contact Dr. Roy Shelburne, email email@example.com