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 53rd 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 was pre-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.
If you think that there is something you can't do, check out my friend, Ed Brenegar's post
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