Dr. Donald Prohovich Agreement 02-2014

8/12/2019 Dr. Donald Prohovich Agreement 02-2014

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SETTLEMENT AGREEMENT AND RELEASEAMONG

DR. DONALD P. PROHOVICH, D.D.S., P.C.andCOMMONWEALTH OF MASSACHUSETTS

EXECUTIVE OFFICE OF HEALTH AND HUMAN SERVICESand

COMMONWEALTH OF MASSSACHUSETTSOFFICE OF THE ATTORNEY GENERAL

PARTIESThis Settlement Agreement and Release ( Agreement ) is entered into as of February , 2014(the Effective Date ) among the Massachusetts Executive Office of Health and Human Services( EOHHS ), limited to its role as the single state agency for Medicaid ( MassHealth ); theMedicaid Fraud Division ( MFD ) of the Commonwealth of Massachusetts Office of theAttorney General ( Attorney General ); and Dr. Donald P. Prohovich, D.D.S ( Prohovich ), anapproved dental provider in the MassHealth program. Prohovich's principal place of business is44 Center St, North Easton, MA 02356. Together, EOHHS, the Attorney General, andProhovich will be referred to as the Parties.

PREAMBLEA. WHEREAS, at all relevant times, Prohovich, operating under MassHealth provider

numbers 110010533 and 110072236, was a dental practice that provided certainMassHealth members living in nursing homes and long-term care facilities with dentalservices for which Prohovich received payment from MassHealth;

B. WHEREAS, MassHealth's dental benefits are administered by EOHHS according to theregulations set forth in the Code of Massachusetts Regulations ( C.M.R. ) at 130 C.M.R. 420.000 et. seq.; and MassHealth's administrative and billing regulations areadministered by EOHHS under the CMR at 130 C.M.R. 450.000 et seq. Theseregulations, all applicable state statutes including M.G.L.c. 12 5B and M.G.L.c.118E 40, as well as information given to Prohovich in MassHealth's Dental Manualand related Transmittal Letters and Bulletins set forth the laws, rules and regulationsgoverning Prohovich's participation as a MassHealth provider;

C. WHEREAS, pursuant to a revision of MassHealth regulations effective July 1, 2010,MassHealth only pays for one house call to a nursing home or long-term care facility perday, in addition to other medically necessary MassHealth-covered services, 130 C.M.R. 420.456(G);


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D. WHEREAS, this Agreement addresses the following Covered Conduct for the relevanttime period of July 1, 2010 through September 1, 2013:1. The Attorney General conducted an investigation into Prohovich's billing for

house calls to provide dental services to MassHealth members in nursing homesor long-term care facilities;2. As a result of the investigation, the Attorney General contends that it has

identified evidence that Prohovich was not in compliance with certain laws,regulations, and/or rules governing billing MassHealth for house calls toMassHealth members in nursing homes or long-term care facilities, resulting inoverpayments for which the Attorney General has made demand. In particular,the Attorney General contends that:a. Prohovich submitted claims to MassHealth for reimbursement of house

calls on multiple MassHealth members at the same facility on the sameday, in reckess disregard of the limitation of coverage of house calls under130 C.M.R. 420.456(G) to once per facility per day;

3. Prohovich requested, received, and reviewed materials from the Attorney Generalregarding his billing practices; in response, Prohovich provided the AttorneyGeneral with factual and legal arguments to support his position that he did notintentionally submit improper claims for reimbursement or improperly retainoverpayments resulting from billing for house calls to MassHealth members innursing homes or long-term care facilities;

E. WHEREAS, by entering into this Agreement, Prohovich neither admits nor denies theAttorney General's allegations. Rather, the Parties wish to avoid the costs and burdens oflitigation proceedings and seek to reach an Agreement that will fully and finally settle theallegations set forth in Paragraph D of the Preamble and any and all related claims.

TERMS AND CONDITIONSNOW, THEREFORE, in reliance on the representations contained herein and in considerationof the mutual promises, covenants, and obligations set forth in this Agreement, and for good andvaluable consideration as stated herein, the Parties set forth the following Terms and Conditionsof Agreement:1 Full and Final Settlement: This Agreement is intended to settle and resolve with finality

the allegations set forth in Paragraph D of the Preamble. In order to effectuate suchpurpose, and in accordance with the mutual covenants and agreements contained herein,and with fully authority to enter into this Agreement, the Parties hereby enter into andexecute this Agreement and agree to be bound by all of its provisions. This Agreementrepresents a final settlement between the Parties for the Covered Conduct only, and itshall not bind any private entity or any state government entity other than EOHHS,limited to its role as the single state agency for Medicaid, and the Attorney General, nor


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Conditions, Non-Financial Terms ;g. For five (5) years from and after the Effective Date of this Agreement, maintain

and make available upon reasonable request, whether on-site or by delivery toMFD and/or MassHealth, whether electronically or in hardcopy, a copy of allwritten policies implemented to insure Prohovich's compliance with paragraph 2,Non-Financial Terms, any training materials utilized or created to ensure

compliance with paragraph 2, Non-Financial Terms, and any documentationneeded to be maintained under MassHealth regulations including, but not limitedto, 130 C.M.R. 450.205; and

h. For five (5) years from and after the Effective Date of this Agreement, makeavailable, upon reasonable request, to MassHealth, MFD or any person acting onbehalf of MFD and/or MassHealth, any and all current Prohovich employees forinterview to ensure Prohovich's compliance with paragraph 2, Non-FinancialTerms.

3. Settlement Amount:a. Prohovich agrees to pay to the Commonwealth of Massachusetts the Total

Settlement Amount of $400,000.00 as restitution for overpayments received forclaims and payments received from MassHealth for house calls for more than onepatient per facility per day. This payment, once complete, shall be in fullsatisfaction of Prohovich's obligations under and arising out of, and in connectionwith, this Agreement. Payments shall be made as follows:

i. Initial Payment: Prohovich is to make an initial payment of $100,000.00on the Effective Date of this Agreement by way of a certified or cashier'sbank check made payable to the Commonwealth of Massachusetts;

ii. Withholding: A 20% annual withholding of future MassHealth paymentsmade to Prohovich under any provider number up to a maximum of$100,000.00 each year for three (3) years by the annual Effective Date untilthe $400,000.00 is paid;

1. In the event that the 20% annual withholding does not achieve the$100,000.00 payment by the Effective Date for a given year,Prohovich shall pay the difference owed, subtracting paymentswithheld that year, on that year's Effective Date, by a certified orcashier's bank check made payable to the Commonwealth ofMassachusetts. Any check, if necessary, shall be delivered to :Assistant Attorney General George Zachos,Chief of MFD or his designeeOffice of the Attorney GeneralCommonwealth of Massachusetts

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One Ashburton Place, Room 1813Boston, MA 02108

b. EOHHS and the Attorney General, acting on behalf of the Commonwealth ofMassachusetts, agrees not to place a lien on any asset of Prohovich to secure therestitution payment on the condition that Prohovich annually satisfies the$100,000.00 payment by or on the Effective Date each year. If EOHHS and/or theAttorney General believe Prohovich has not made a payment that was due underthis Agreement, they shall provide Prohovich with written notice of that default andProhovich shall have ten (10) business days to cure said default before a lien maybe secured;

c. Receipt of the Total Settlement Amount as specified in Section a of this paragraphshall constitute full and final settlement of the Covered Conduct and all allegedoverpayments related to the Covered Conduct described in Paragraph D of thePreamble.

The Release: In consideration of the execution of this Agreement and conditioned uponProhovich's payment in full of the Total Settlement Amount outlined in Paragraph 3 ofTerms and Conditions:

a. EOHHS and the Attorney General hereby release Prohovich, its predecessors,successors, transferees, heirs and assigns, and their current and former directors,officers, employees and agents individually and collectively from all civil,criminal or administrative claims or causes of action which were or could havebeen raised in any civil, criminal or administrative action or proceeding relating tothe Covered Conduct described in Paragraph D of the Preamble.

b. The release provided in Section a of Paragraph 4, The Release, is limited tocivil, criminal and administrative liability arising from the Covered Conductdescribed in Paragraph D of the Preamble, and does not extend to liability arisingfrom any other conduct of Prohovich.

c. This Agreement represents a final settlement between the Parties for the CoveredConduct only, and it shall not bind any private entity or any state governmententity other than EOHHS, limited to its role as the single state agency forMedicaid, and the Attorney General, nor shall it release Prohovich from liabilityfor any other conduct not specified in Paragraph D of the Preamble. Nor shall thisAgreement bind any federal government entity, including the United States.

d. Prohovich hereby releases EOHHS and the Attorney General, their successors,assigns, present or former officers, directors and employees from all civil oradministrative liability, and from any claims, counterclaims, agreements,contracts, duties, damages, demands, costs, losses and expenses (includingattorneys' fees and litigation costs actually incurred) of any nature whatsoever, inlaw or in equity, whether statutory or common law, arising in any way from the

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Agreement.5. No Appeal: The terms of this Agreement shall not be subject to appeal in any forum.

This Agreement is a settlement agreement. It is not a final agency action for the purposeof M.G.L. c. 3OA 14.

6. Voluntary and Freely: The Parties each represent that this Agreement is freely andvoluntarily entered into without any degree of duress or compulsion whatsoever.

7. Execution of Original Agreement in Triplicate: This Agreement consisting of seven(7) typewritten pages shall be executed in triplicate, each of which shall constitute anoriginal, and all of which will constitute one and the same Agreement.

8. Signatories are Authorized to Sign: Each person who signs this Agreement in arepresentative capacity warrants that s/he is duly authorized to do so.

9. Agreement Effective Upon Signing: This Agreement shall be final and binding onlyupon a signing by each representative party hereto and shall be effective on the date it issigned.

10. Binding on Successors: This Agreement shall be binding on all successors, transferees,heirs and assigns of the Parties.

11. Entire Agreement: This Agreement constitutes the full and complete agreementbetween the Parties with respect to the subject matters hereof, and supersedes any and allother written or oral communications or agreements related thereto.

12. Won t Seek Payment: Prohovich shall not seek payment for any of the claims forrestitution to be paid under this Agreement from any health care beneficiaries or theirparents, sponsors, legally responsible individuals, or third party payors.

13. Governing Law: This Agreement shall be governed in all respects by the laws of theCommonwealth of Massachusetts.

14. Modification: This Agreement may be modified only in a writing signed by or on behalfof all Parties to this Agreement.

15. No Admission or Denial of Wrongdoing: This Agreement is not, nor shall it beconstrued to be a sanction of any kind. By entering into this Agreement, Prohovichneither admits nor denies the allegations specified in Paragraph D of the Preamble, andneither party will issue any public statement to the contrary, although the Parties mayquote the provisions language of Paragraph D in public statements regarding thisAgreement. This Agreement is not a concession by the Commonwealth of Massachusettsthat its allegations were not well-founded.

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DR. DONALD P. PROHOVTCH, D.D.S., P.C.

ByDr. Donald P. Prohovich, D.D.S.OwnerDr. Donald P. Prohovich, D.D.S, P.C.44 Center StreetNorth Easton, MA 02356

Dated: I ^

Jv. \f sA /\ Dated:0 >1 -Paul Cirel, Esq. (As Counsel for Prohovich)

Collora LLP100 High Street, 20th FloorBoston, MA 02110

EXECUTIVE OFFICE OF HEALTH AND HUMAN SERVICES, OFFICE OFMEDICAID

By:

One Ashburton Place, 11Boston, MA 02108

ih loor

MARTHA COAKLEY, ATTORNEY GENERAL

DatedKristin ThornMedicaid DirectorExecutive Office of Health and Human Services

; i - g - / 1 /

\

By:Geor^rZachos, Chief, M aOffice of the Attorney GdneralCommonwealth of MassachusettsOne Ashburton Place, I8tl1 FloorBoston, MA 02108

Dated:

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Dr. Donald Prohovich Agreement 02-2014