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Roy Shelburne, DDS Endures A Medicaid Nightmare

Posted Jun 13 2009 12:17am

Tn_royshelburne_2     I read the following story on Dentaltown.  It was written by Dr. Roy Shelburne of VA. about a living nightmare he and his family are experiencing.  It's long, but I hope you'll read his letter and the speech his son gave to his dental school class at VCU.  If you feel what is happening to Dr. Shelburne is a travesty, please write to the judge in his case before June 1. Contact information is provided.  You can find more ways to help here.  You can email the governor of Virginia here.

From: Roy S Shelburne

 

It is with great sadness that I am writing to inform the dental community that I was convicted of Medicaid Fraud and 9 other related counts on Thursday, March 6, 2008; 3 days before my 53 rd birthday and after 26 and a half years of practicing dentistry in a small town in southwest Virginia called Pennington Gap. I am writing to alert you as to what’s going on in the state and to warn you! This situation has devastated my life and my family. The guilty verdict carries with it a possible sentence of 120 years in prison and a monetary fine of 1.5 million dollars. I don’t mean to alarm you; however, I don’t want any of you to suffer the same consequence either!

You may have read about this case in your local newspapers or have seen it on the news.  There were many allegations regarding up coding, unnecessary treatment, multiple billings, and miscoding of treatment provided. There was also suggestion of physical abuse and cruelty of my patients, although there was no testimony to that effect. The truth is that I would never do anything to hurt a child or anyone else for that matter. None of the allegations are true! The government provided expert testimony that supported their position and we provided expert testimony that supported our position regarding the charges of Medicaid fraud and the related treatment provided. Of course there are two sides to every story and I don’t want to mislead you. We did make errors. Everything we did was not perfect. I admit to you now and admitted to the court that I made mistakes and my staff made errors. Nothing that was done by intension and nothing we did for our patients could be remotely labeled as fraud or abuse. I admit that we made errors; however, it is my belief that the decision made by the jury was not based on the facts; however, the verdict was made based on our lifestyle.  (How can a lay person sitting on a jury make a determination as to the appropriateness of treatment when the profession as a whole has great difficulty agreeing on what is appropriate when it comes to treatment?) The bulk of the government’s case was based on the fact that I operated my practice like a business. The government made their case based on the house I live in and the cars I owned. (During the course of the trial the prosecution showed the jury pictures of my home on more than one occasion. They even showed a picture of my daughter’s car as if that had a bearing on the allegations of Medicaid Fraud.)  Scary, huh?  Prosecution by lifestyle: as the government presented the jury with what was described as a “lavish” lifestyle.

The result of this case could have a profound effect on you and your practice of dentistry especially if you are now accepting or plan to accept Virginia Medicaid. This decision has set a precedent. From what I understand the government has used this as a test case. With their success, it is my belief that they will now take their efforts state wide. If you now take Medicaid or plan to take Medicaid in the future, you are now a target.

Because this case involved Medicaid Fraud, there were additional counts of Racketeering, Structuring, Mail Fraud, and Wire Fraud. These additional counts pertain to the alleged receipt of fraudulent monies from the act of Medicaid Fraud and this allowed the government to confiscate everything I owned and to place it under a protective order prior to being convicted of any wrong doing. On October 27, 2006, federal agents came to my home, arrested me, confiscated my vehicles, seized all my bank accounts and took control of everything I owned. Agents, at the same time, located my children in Charlottesville and Blacksburg and confiscated their vehicles as well. (I have a son graduating from dental school at VCU in May, a daughter in medical school at VA tech, and a Daughter at ETSU in the doctorate program in audiology.) I was transported by agents to Bristol Virginia in handcuffs and leg chains, spent the night in jail and was arraigned in federal court the next day. I entered a plea of not guilty and bail was arranged. My assets were placed under a protective order and only those things that I absolutely needed to live were made available to me a month later. Two vehicles were sold by order of the government, all bank accounts, business and personal, were emptied and the proceeds were put in a trust account. I had to pay for the transport of the vehicles and for the storage of the vehicles while confiscated, over $ 5,500. The government now has taken possession of this trust account.

We have requested that the conviction be set aside and are awaiting that decision. I have very little hope that the Judge will grant our request. We also hope to mount an appeal of the conviction; however, the appeals process must wait to be initiated until after sentencing.  I will be in prison during the appeals process. This is where I am.  Unless a miracle happens, I will be sentenced June 9, 2008. As mentioned before, the conviction carries with it the possibility of 120 years in prison and can carry a fine of up to 1.5 million dollars. Please pray for me and especially my wife and children who have been devastated in the process. Your letters could help in the sentencing process if received before June 1, 2008. (See below for the details if you are inclined to provide a letter.)

In the meantime, I want to make myself available to you to answer any questions you might have or to further explain the situation as I understand it. Don’t hesitate to call 276-346-3863. If you get the machine, please leave a message.   My email address is: roy_shelburne@yahoo.com. Contact me at your convenience and I will get back in touch with you. Everyone in the dental community needs to know what happened and that the same could easily happen to you.

In addition to putting the word out I need to ask for other help as well! I have had the pleasure of going to dental school with many of you; I have met many of you through the MOM projects in Wise and Grundy over the years, and some of you I have met in other ways. If you would be willing to write a letter of support of me to the court that could be helpful during the sentencing phase in June. I would deeply appreciate your help in this area. Furthermore, I ask that you talk to your colleagues and alert them as to what’s happened. You may direct your letters of support to:

Judge James P. Jones

Chief U.S. District Judge

180 West Main Street

Room 104

Abingdon, VA 24210

Please mail the letter directed to Judge James P. Jones to:

Dennis E. Jones & Associates

Attorneys at Law

P.O. Box 1237

1 Flannagan Ave.

Lebanon, VA 24266

Or you can attach your letter via email to:  dejones@bvunet.net

To be completely open with you, because of the enormous financial burden to defend this case I have nothing left to use in order to mount an appeal. My credit cards are maxed, my property has been mortgaged, my credit has been tapped out and I have nothing left in reserve; therefore, my fate has been secured. The inevitable result will be: I will be in prison and my wife and children will be left to fend for themselves.

As I have said, I do not want this to happen to anyone else! It will be my pleasure to answer any questions you may have regarding what has happened as well as suggestions as to how to best prevent it from happening to you. Beware! It is very possible that any one of you could be next! It is my understanding by comments made by the government during this proceeding that this case is just the first of many in the government’s effort to “clean up the Medicaid system”.

Thank you so much for your time taken to read this letter and for your concern.

Again, should you have questions or would like to talk, please call: 276-346-3863. My email address is roy_shelburne@yahoo.com.

 

Sincerely yours,

 

Roy Shelburne

Ross, my son’s announcement to his Dental class at VCU:

Ross will be graduating from the Dental School at VCU, May of this year and I thought it might be helpful for you to see what happened from his perspective. The following is his announcement from Ross to his class.

 

From Ross to the Dental Class of 2008:

 

I wanted you to hear it from me instead of the newspaper or word of mouth, etc.  If you're in a hurry, the first two paragraphs and the last paragraph should suffice, the rest are details.  I could have written four or five times more, but I think I got the point across through my ramblings.  I'll warn that I didn't have time to proofread. This should scare any dentist. I know it's scared everyone I've told it to.

 

I guess the easiest way to state this is just to lay it out:  My father, Roy S. Shelburne DDS (VCU class of '81), was just tried and convicted of 10 charges ranging from from healthcare fraud, wire fraud (in this case, filing insurance claims electronically), racketeering, money laundering, etc.  The maximum sentence would call for 120 years in federal prison and his license to practice dentistry was immediately void upon reading of the verdict.  He is the first dentist and (I've been told) only the second healthcare provider convicted of RICO.

 

The total amount of healthcare fraud (if you believe the prosecution's "expert" witness) was around $8,000 over the course of almost 5 years. Let me repeat that, a jury believed my father plotted and schemed to defraud Medicaid for $8,000 over 5 years...a period where his practice had production numbers well over two million dollars.  They also believed that over those 5 years my father also knowingly withheld overpayments by Medicaid, who in some cases neglected to reference the amount paid by the patient's primary insurance carrier, resulting in a benefit for a procedure being dispersed twice.  The total of those overpayments, over 5 years, was around $4500, again out of over two million $.  Both were (by the prosecution's own admission) based on circumstantial evidence.  The forms you submit to Medicaid to tell them to recoup the overpayment are commonly destroyed by Medicaid ~10 days after processing.  My father had an employee that was in charge of finance issues such as filing claims to private insurance and Medicaid, keeping track of payments, and sending forms for the return of funds to Medicaid.  There were copies of some of the forms used to inform Medicaid of overpayment involving procedures cited in the indictment in the handwriting of that employee.  Forms for all of the acts cited were not available, but despite a complete lack of hard/objective evidence to support the prosecution's claim of intentional overbilling, the jury found him guilty.  I still can't believe that with nothing but circumstantial evidence they were beyond a reasonable doubt.  A jury of 12 dentists would have had a good laugh and acquitted him in 30 seconds.  The wire fraud refers to a error on a electronically submitted Medicaid claim. 

 

 

It all began about 5 years ago when I got a call from my mother while I was in class saying that my father's office had been raided by the FBI.  My father found out about it while listening to a keynote speech at a Dental Conference in California when my mother asked, "are you sitting down?"  They confiscated every chart, every financial record, everything except the equipment.  It would be 3 years before they would indict him.  During those three years he was under constant watch by the FBI, who had agents that pulled my two sisters and myself out of class to question.  Sometime in 2006, they froze all of my father's financial accounts, seized all our vehicles (including leased vehicles), and came in the evening to arrest my father in his sweat pants and t-shirt while he slept on the couch.  They could seize all of this without a conviction because of the use of the RICO (racketeering law)...yes, the same law used against mobsters and drug kingpins. After 9/11 the interpretation of RICO became broader to give law enforcement a method of searching and seizing assets of lesser organized crime and terrorist cells.  The thought was that if you couldn't get a legitimate reason to issue a search warrant or indictment, RICO and the Patriot act would make it easier.  Most RICO indictments are settled before they start since any funds the defendant would have to put up a defense are frozen by the government beforehand.  However, we decided to fight.  My father was offered plea bargains but would never admit to something he didn't do, even if it meant going to jail.  It took them 3 years of review all those charts to scrounge up the circumstantial evidence needed to get an indictment.  During that time Medicaid did 3 audits of its own and in each stated that they found no irregularities in Dr. Shelburne's office that would warrant suspension of Medicaid or license.

 

The basis of the whole thing is healthcare fraud.  According to the government, if you receive funds by fraud (or apparently in this case) or by overpayment by Medicaid that is not recouped (even by accident) and any part of those funds is used to buy supplies, bills, etc you have committed money laundering.  What's more, the government doesn't even have to prove a "dirty" dollar is connected, they don't have to trace it.  It is sufficient enough to say there was an ill-gotten $ and it was spent.  If there was no healthcare fraud, then there was no dirty money and you can't launder clean money.  Their racketeering charge comes from them being able to classify the family business as an "Enterprise."  It was a family limited partnership setup by a firm that does them for thousands of families.  So, unbeknownst to me, my dad, mom, sisters, and I were a crime syndicate.  The same law used against the Gambino family.

 

 

 

The hardest part for me during the two weeks I've sat in on the federal trial, aside from hearing the verdict being read, was listening to basic principles and rules of dentistry and diagnosis being twisted and misrepresented throughout the trial.  The most outrageous to me being the basis of the prosecution's "expert" witness' evaluation of my father's work.  All the numbers are still a blur but I believe the total number of patients involved was less than 100, I think around 75.  For the majority of the reviews, all the dentist had available to determine whether treatment was warranted waspre-op radiographs and the progress notes. From the pre-op radiographs alone, she disputed with my father about the presence of either buccal, lingual, and occlusal caries and indication for treatment.  The prosecution used this testimony, where she stated caries was not evident radiographically and twisted it to make the claim that my father performed unnecessary work, based solely on the pre-op radiographs where caries was not radiographically evident.  She did have the opportunity to do an in-mouth exam in about 20 of the patients, a couple years after the work had been done.  In one such case, she stated she could only find 1 of 11 buccal composites my father had done, a subsequent review by another dentist noted that there were indeed 11 restorations, well color-matched.  So she missed 10 out of 11 when she did have access to a first person review.  I was also told that the conditions under which the examinations on behalf of the government took place were poorly lit, lack of instrumentation, and no magnification (loupes).  She also testified that a tooth was "like a house" with definite corners separating surfaces, that an overhang on a crown was a "like putting boots on a rooster,"  and that her personal philosophy towards preventative dentistry was to wait until a cavity was big enough to hurt, then treat it.  This witness had worked in the same clinic as some of the other local dentists that would testify. They even twisted our witness' statement that a restoration "was not clearly evident solely upon pre-op radiographic evaluation" to make it sound like "Dr. ________ said there was clearly no indication for treatment."  There were even professors at our school that had reviewed the charts and were going to testify on my father's behalf before the prosecution objected.  The only person that had access to all the normal diagnostic tools used for treatment planning/diagnosis, including the presence of the patient and their wishes, was my father. Everyone else that has reviewed the procedures in question only had the pre-op radiographs and in a few rare instances an in-mouth review post-op a couple years later.

 

Another local dentist testified that he had seen one or two root canals in a former patient of my father fail, but only one patient, whose oral hygiene had been previously charted as poor and was high caries risk. The prosecution used this to make the claim that 100% of my father's root canals seen by that dentist were failures...and I will concede that 1 out of 1 or 2 out of 2 is 100%.  Never mind that his endo failure rate over 22 years is well below the national average.

 

I also had to listen to the prosecution try and get a dentist to say that if a root canal is done properly and done well, it will never fail or need to be retreated.  The lawyer tried to claim that if a root canal was not "filled to the end, it was doomed to failure" as he pointed to a post in #11 on a panorex saying it was gutta purcha before my father corrected him.  Right after he asked why the lengths of fills varied between teeth pointing to how the root canals of #9, #10, and #11 weren't the same length (imagine different size teeth needing different lengths of gutta purcha).  Listening to them try and say a progress note that didn't contain every minute detail (i.e. not explicitly saying that an extension of an occlusal restoration onto a buccal or lingual via fissure meant that you were trying to cover for fraud).  I heard a lawyer and a dentist try and debate whether there was an absolute standard for determining where a mesial/distal surface became a lingual/buccal surface.  I've heard them argue that properly delivered crowns and restorations will never fail due to any other reason than doctor error.

 

Again, the expert witness' basis for necessity of treatment was pre-op BWX in the posterior, a panorex for any anterior areas that didn't have PA's, and a in-mouth exam under poor conditions 1-3 years post-treatment. 

 

Our expert witness was an insurance claims reviewer/investigator that reviews hundreds of charts a week.  Her review of the charts and patient in-mouth exams revealed around $100-150 in miss-billed treatment, compared to the ~$8000 of the prosecution's witness.

 

I have a complete transcript of the prosecution's cross of our expert witness, if anyone wants to laugh/cry at the inaccuracies about dentistry the prosecution tried to argue. 

 

 

I come from one of the poorest areas of Virginia, the southwest corner. A place where its common to be hated for being successful and prospering, even when it is deserved and earned.  The majority of the population lives near or below the poverty level and they hate anyone that doesn't.  The jury of my father's "peers" was made up of twelve locals ranging from farmers to mechanics, etc.  The words mesial, composite, and pulp chamber might as well have been Japanese to them. I could see their eyes glaze over whenever anyone would mention something about dentistry or any important factors in determining the presence of healthcare fraud vs. human error and bad notes.  The things they did recognize, however, were the pictures of our house, pictures of my sister's car that had been taken while she was followed by FBI agents, and stories of my family going on "lavish" vacations.  They made sure to emphasize words like "Mercedes" and even referred to my parents house as the "CAVITY CASTLE."  I believe the jury made up their mind the second they saw our house. To them, you can't have such nice things unless you stole the money to buy it.

 

I'm sorry to inform them, but their witness' claim of ~$8,000 of "up coding" over 5 years wouldn't pay for much of the vacation, house, and cars.  If were going to intentionally defraud Medicaid, wouldn't you do it for more than a couple hundredths of a percent of your revenue, or a couple thousandths of a percentage if you believe the insurance claims investigator.  And wouldn't you charge for nitrous if you were in it for the money?  (My father has never charged for nitrous, even through he could). 

 

They also chose to omit the parts in the progress notes where my father didn't charge for some services, even on the patients they were claiming he "took advantage" of.  They accused him of turning orphanage kids into "dental cripples" by trying to treat rampant caries instead of just do full mouth extractions.  Some of the patients included in the fraud case even came to testify that Dr. Shelburne was one of the only people that treated them with respect and care.

 

Disgruntled employees claimed he "only cared about money" based on the fact that he would make them come in early for morning "huddles" where they would discuss which patients would be coming in, what procedures were scheduled, etc so that they would be prepared.  They have huddles at Wal-mart and Home Depot.  Heaven forbid you would be prepared and ready for the day.

 

No other dentists in Lee County accept Medicaid, my father is the only one willing to accept the reduced fee schedule and care for them.  Now there are no dentists in the county that accept Medicaid, and I feel sorry for the children.

 

The prosecution even tried to say that my family going on mission trips to Honduras to give free dental care or a week and his contributions to the MOM project were selfish endeavors.

 

The government probably spent over a million dollars over 5 years investigating and trying my father over less than $10,000.

 

I have learned a couple things from this ordeal:

    -Y ou're not entitled to anything, even your own hard work (according to the government).

    -If you don't want to lose everything and go to jail over less than $10,000 in coding mistakes make sure your assistant, hygienist, or whoever writes the note including EVERYTHING.  (Speaking of which, an assistant described a lesion on a tooth as a freckle and the prosecution tried to prove that was not an indication for treatment). 

    -And finally, despite what common sense would tell you, the law is written in such a way that a "pattern" of two instances out of 100,000 claims for a total of $6 dollars overpayment can be money laundering if you ever spend a cent out of that account for something as innocuous as office supplies. 

 

 

There's a lot more to the story, and I might be a little bias but:  Anyone that has met my father and anyone that knows anything about dentistry when hearing the full story would know my father is innocent and doesn't deserve what he's been put through.

 

 

 

All of this brings me to yesterday, 3/6/2008:  the worst day of my life. After a two week waking nightmare of listening to testimony, truths, half-truths, and outright lies being spread in a federal court of law, the day came.  The jury deliberated for about 8 hours total over two days.  About an hour before it was announced that they had reached a verdict, they requested clarification of one of the jury instructions and we knew it wasn't going to be good.  Hope eroded and reality took its place, they were going to take my dad away.  I sat with my family and prayed.  The hour between the jury's question and their final decision was agonizing.  My little sister in denial, "they can't take you away."  Me apologizing for all the bad things I had done and for all the times I didn't call home just to say "I love you."  We returned to the courtroom to hear the verdict, sobbing, me holding my youngest sister, trying to defuse the panic attack she was experiencing.  All she could say was, "they can't take my daddy away."   I held her and told her "it will all be ok" as convincingly as I could, not knowing for sure myself.  A part of me still held onto a hope that the next words I would hear would be "not guilty," but it was not to be.  The first charge was read, followed by "guilty".  The second was read, followed by "guilty" and so on.  My heart getting heavier each time I heard the word.  I had never really thought about what a guilty verdict would mean, it seemed impossible to fathom.  My undying optimism had prevented me considering the worst outcome and now my mind was filled with repercussions.  With a simple word, 12 people had taken a remaining lifetime of joys away from my father.  He will likely not see his daughters' marriage, the birth of his first grandchild, the passing of his parents, and so much more.  He will learn of these events through letters and phone calls.  My family will be deprived of my dad, I will no longer be able to call him when I have a question, I can't ask him for advice or help when I begin practicing dentistry, I won't be able to call on him when I don't know what to do as a father, he won't be there to give my sisters away at the altar, he won't be there at my 26th family Christmas.  He will be deprived of many things most of us take for granted.  Everything he's worked for his entire life has been undermined.  His livelihood and license have been taken away.  And my mother has been deprived of her husband and best friend.  I now have to make sure everything's alright, that everyone's taken care of. All these thoughts rushing through my head while I hug my sisters and mother.  Its amazing how fast your life can change.  You only have a moment to feel small and powerless before realizing all you can do is meet the new challenges you're faced with and I'm more determined than ever.

 

Finally, I am so thankful for everyone's thoughts and prayers.  I have no doubt they provided the silver lining to the day:  My dad's sentence hearing was scheduled for June, so at least he gets to see me graduate from the same dental school he passed through 27 years ago.

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