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Pollina v. Dishong

Superior Court of Pennsylvania

July 22, 2014


Argued May 21, 2014

Page 614

Appeal from the Order of the Court of Common Pleas, Cambria County, Civil Division, No. 2012-3637. Before KINIRY, J.

Jeffrey J. Wetzel, Pittsburgh, for appellant.

Joel C. Seelye, Altoona, for Dishong, appellee.

Ronald P. Carnevali, Jr., Johnstown, for New Dimensions, appellee.



Page 615


Arthur A. Kravitz, DMD (" Kravitz" ) appeals the Order denying, in part, his Preliminary Objections to the Amended Complaint filed by Samuel C. Pollina, DMD (" Pollina" ) and New Dimensions Dentistry & Orthodontics, P.C. (" New Dimensions" ) (collectively " Plaintiffs" ). After careful consideration, we affirm the trial court's Order.

Pursuant to the averments of the Amended Complaint, Pollina, a licensed dentist, and his corporation, New Dimensions, operated a successful and thriving dental practice in Johnstown, Pennsylvania that provided dental care and services to beneficiaries of Pennsylvania's Medical Assistance Program (" MA" or " MA Program" ). Amended Complaint, 11/29/12, at ¶ ¶ 1-3, 8, 17-18. On March 3, 2010, Pollina expressed his concerns to Debra Dishong (" Dishong" ), the office manager of New Dimensions, that the corporation's cash drawer was not being balanced every day. Id. at ¶ ¶ 9-10. Thereafter, Dishong's work attendance became sporadic. Id. at ¶ 11. On March 30, 2010, Pollina terminated Dishong's employment. Id. at ¶ 12. In response, Dishong threatened to contact various federal and state agencies, including the Department of Public Welfare (" DPW" ),[1] regarding Pollina's business practices. Id. at ¶ 13.

In April 2010, Dishong contacted the Bureau of Program Integrity (" BPI" ), a bureau within the DPW designated with primary responsibility to investigate allegations of misconduct by MA providers. Id. at ¶ ¶ 19, 22. Dishong alleged that Pollina was unlawfully prescribing high volumes of controlled substances to MA recipients and billing the MA Program for unnecessary and/or substandard dental procedures. Id. at ¶ 22. Upon receipt of Dishong's allegations, the BPI initiated an investigation of Plaintiffs. Id. at ¶ 23.

Thereafter, the BPI conducted an unannounced inspection of New Dimensions. Id. at ¶ 28. During its inspection, the BPI interviewed employees of New Dimensions, removed approximately seventy-eight patient files and obtained six months of dental supply invoices. Id. at ¶ ¶ 30, 31. As the BPI's dental consultant, Kravitz, a licensed dentist, attended the BPI inspection, participated in the interviews of New Dimensions's employees, reviewed the DPW electronic claims records and data (including Pollina's prescriptions to dental patients), and reviewed the seventy-eight patient files removed from New Dimensions's office. Id. at ¶ ¶ 5, 29, 32. Upon completion of his review of these materials, Kravitz issued an analysis and opinion to

Page 616

the BPI that was critical of Pollina's dental care and supported his opinion that a credible allegation of fraud had been made against Plaintiffs. Id. at ¶ 33. Specifically, Kravitz opined that Plaintiffs: prescribed excessive quantities of controlled substances for simple dental procedures; prescribed anti-psychotic and anti-depressant drugs not ordinarily prescribed by dentists; conducted dental procedures below the standard of acceptable dental treatment; and may have submitted multiple claims for dental services which were of little or no benefit to the recipient, below accepted medical/dental treatment standards, not medically necessary, not rendered, or which misrepresented the description of services, supplies or equipment dispensed or provided. Id. at ¶ 56.

Based on Dishong's allegations and Kravitz's analysis and opinion, the BPI concluded that there were credible allegations that Plaintiffs had committed fraud in connection with the MA Program. Id. at ¶ ¶ 34, 36. The BPI then referred the matter to the Office of the Pennsylvania Attorney General's Medicaid Fraud Control Section (" MFCS" ), which investigates and prosecutes fraud committed by MA providers. Id. at ¶ ¶ 20, 35. The MFCS accepted the referral and initiated its own investigation of Plaintiffs. Id. at ¶ 35.

Additionally, on October 14, 2011, the BPI sent a letter to Plaintiffs advising that it had suspended their MA payments. Id. at ¶ ¶ 36-37. The letter further advised that the BPI had received credible allegations that Plaintiffs had engaged in fraudulent behavior related to dental services and prescriptions for controlled substances. The alleged fraudulent actions included, inter alia, knowingly or intentionally submitting false information for the purpose of obtaining greater compensations, submitting claims for services not rendered, submitting claims for services that were below accepted medical/dental treatment standards, submitting claims which misrepresented the descriptions of the supplies or equipment dispensed or provided, and prescribing controlled substances that were not medically necessary and/or in amounts that exceeded the recipient's needs. Id. at ¶ 38.

Due to the suspension of MA payments, New Dimensions became unable to meet its payroll obligations, and Pollina was forced to lay-off all but three of New Dimensions's employees, whose employment was reduced to part-time. Id. at ¶ 42. Additionally, as a result of the MA payment suspension, and the resultant losses to his dental practice and business, Pollina suffered severe emotional distress, requiring medical care and treatment for migraine headaches and depression. Id. at ¶ 66.

Plaintiffs appealed the MA payment suspension with the Bureau of Hearings and Appeals (" BHA" ), another bureau within the DPW, asserting that the suspension was not based on credible, substantial or competent evidence. Id. at ¶ 39. Additionally, in order to contest the fraud allegations, the suspension of MA payments and the MFCS investigation, Plaintiffs hired counsel and retained expert witnesses. Id. at ¶ 43. Upon completion of discovery during the appeal process, no evidence supported any contention that Pollina was over-prescribing controlled substances, or that Plaintiffs submitted claims for services that were not documented or warranted, or that they knowingly or intentionally submitted false information for the purpose of obtaining greater compensation. Id. at ΒΆ 44. Accordingly, the ...

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