Lawyers: Don't bar accused dentists from Medicaid

McALLEN – To hear government attorneys tell it, dentist Gary Schwarz saw dozens of children a day, ushering them through a "cattle chute" surgical line for procedures they often didn’t need.

He allegedly boasted about the number of operations he could bill to the government in a day and offered a cut of his profits to any colleagues — including a state legislator — who agreed to refer more patients.

But barring him and five other Rio Grande Valley dentists from treating Medicaid patients could lead to a local shortage of qualified dental specialists and hurt the very people prosecutors hope to protect, a defense team representing the dentists argued Monday.

"This is an underserved area," said David Botsford, an attorney representing McAllen dentist Colbert Glenn. "This is unfair to Medicaid patients. It’s unfair to the community. And it’s unfair to these doctors in pursuing their chosen profession."

U.S. Magistrate Judge Dorina Ramos initially barred Schwarz and five referring dentists from treating patients enrolled in the federally funded Medicaid program, after their arrest last month as part of a purported $62,000 health care fraud scheme.

Schwarz, the 57-year-old owner of Valley Oral and Maxillofacial Surgery in McAllen, billed the government for procedures performed by unqualified dental assistants and in settings in which he was not licensed to operate, according to the 22-count indictment in their case. Most of the operations involved children between the age of 10 and 20 having their wisdom teeth removed.

The rest of the dentists – a list that includes state Rep. Tara Rios Ybarra, D-South Padre Island, who owns a dental practice based in Brownsville – purportedly referred child patients to Schwarz for surgery, allowed him to operate in their office and accepted 15 percent of the billing fees he collected from Medicaid, in violation of program rules.

Undercover videos shot by government witnesses purportedly show Schwarz removing all four wisdom teeth from children in less than 20 minutes and ushering them out the back door – still under the effects of anesthesia – less than 10 minutes later.

One patient could be heard audibly protesting in pain while Schwarz performs the procedure, according to court filings.

"Dr. Schwarz doesn’t look at these people as patients or as kids," said Assistant U.S. Attorney Carolyn Ferko. "I think he looks at this as a game."

But defense attorneys urged Ramos to loosen bond restrictions preventing their clients from participating in the Medicaid program while the case makes its way to trial. The Valley’s unique economic conditions and shortage of qualified dentists make such conditions impractical, they argued.

All of the dentists represented Monday reported that the majority of their patients pay through government-funded health care programs. Some reported Medicaid patient loads as high as 80 percent.

Cutting those clients out of their practices would bring their businesses to the brink of bankruptcy, said Botsford.

He asked the judge to allow the dentists to resume Medicaid billings as long as they stopped referring to Schwarz.

"They weren’t indicted for (health care) fraud. They were indicted for kickback violations," Botsford said. "The government is effectively trying to prevent them from earning a living to defend against these allegations."

But more importantly, he argued, Schwarz provided an invaluable service to the Valley’s dentists and their patients as one of only eight oral surgeons operating in the region.

Stopping him from seeing Medicaid beneficiaries is likely to hinder low-income access to dental care just as blocking patients from seeing the five other dentists will likely cause backlogs in other local offices.

Prosecutors, however, dismissed this idea.

Brownsville, where Ybarra holds her practice, is home to 42 other dentists according to the Texas State Board of Dental Examiners. McAllen has about 50, excluding the 4 other defendants who own practices in the area. It was unclear how many of the dentists listed on the board’s Web site were able to treat Medicaid patients.

"These are not the only five dentists in the Valley," Ferko said.

Ramos is expected to issue an order today on whether to lift the Medicaid restrictions on the defendants while their case remains pending.

Each of the dentists face charges of giving or receiving kickbacks, punishable by up to five years in prison and $25,000 in fines.

Additionally, Schwarz — and two of his employees — are charged with multiple counts of conspiracy and health care fraud and could serve an extra five years.

Medicaid is a joint federal-state program that helps pay for health care for the needy, aged, blind and disabled and for low-income families with children.