The Maine Department of Health and Human Services could reduce or eliminate the controversial fines recently levied against dentists serving MaineCare patients, according to a contract between the agency and the independent auditor who issued the penalties.

The fines have been appealed and are in limbo awaiting DHHS rulings.

Dentists have complained to the Portland Press Herald that they were shocked to receive fines as large as $200,000 from new audits required under the federal Affordable Care Act. Statewide, the fines totaled about $800,000, and dentists have said they may have to close or sharply curtail services to low-income patients served under the MaineCare program if the fines are allowed to stand. The fines were based mostly on minor paperwork and coding errors, dentists have said, and the contract gives auditors financial incentives to penalize Medicaid providers for clerical errors.

“This has just been incredibly spiteful and petty,” said dentist Mark Zajkowski, of Oral and Maxillofacial Surgery Associates in South Portland. Zajkowski said his practice is facing a “substantial” fine. “The only thing this is going to do is disincentivize dentists serving MaineCare patients.”

While the ACA requires more comprehensive audits of Medicaid services, the specifics on how the audits are carried out and what types of penalties can be imposed are controlled by the states. In Maine, dental services are the first to be scrutinized by the new Medicaid audits, while hospitals are next on the list.

The contract between DHHS and New York-based auditor HMS Holdings Inc. gives the state complete authority to alter the fines imposed by the auditor, once the fines are appealed. The power to reduce the fines is a judgment call and does not have to follow set criteria, according to the contract.

Whether DHHS will substantially reduce or make the fines disappear remains to be seen, as state officials have been noncommittal in conversations with dentists, three dentists told the Press Herald.

Also, a DHHS spokesman said Friday that it’s “premature” to determine what will happen with the appeals. The state first does an informal review of an appeal, and then goes to an administrative hearing if the appeal decision does not satisfy the parties.

“We are working with providers to better understand their concerns and providers have the opportunity to share additional information and appeal any of the findings,” DHHS spokesman John Martins said in an emailed statement to the Press Herald. “It would be premature to speculate on the outcome of this administrative process.”

The errors, dentists say, include what they view as largely clerical mistakes. For example, penalties have been charged to a clinic where several different dentists have provided care to a patient over the course of multiple visits, and the wrong dentist’s name was given on a MaineCare claim for a particular visit.

The dentists say such errors are minor, because they have nothing to do with the care the patient received or how much the service cost.

It’s unclear how errors are evaluated or the size of a fine is determined when an audit is done. HMS Holdings officials did not return numerous calls seeking comment over the course of several days last week.

The contract, first signed in May 2012 and released publicly this past week after being requested by the Press Herald, will end in December, according to Martins. The contract pays HMS a contingency fee of 10.85 percent of all fines collected.

Martins wrote that DHHS does not expect the contract would be changed much to prevent the methods used by HMS that led to the protests.

The dentists have complained that they suspect HMS cherry-picked 100 records that were likely to contain errors, and then extrapolated the errors to the entire MaineCare population that they serve, leading to unfair and inaccurate fines. According to a Medicaid auditing handbook that the contract says the auditors should follow, the extrapolation must derive from a random sample. The state does not have to allow auditors to extrapolate findings.

Rep. Richard Farnsworth, D-Portland, House chairman of the Legislature’s Health and Human Services Committee, said the fact that the contract will end in December should lead to a re-examination of why the fines were so large, and potential revisions to the contract.

He said if DHHS digs in its heels, the Legislature could take up bills that limit the discretion of the auditors. “It’s gotten out of control,” he said. “This opens the door for the Legislature to negotiate.”

Sen. Colleen Lachowicz, D-Waterville, said auditors should be rooting out fraud and abuse, not finding technical errors, and she will work to change the focus to a more collaborative effort.

“If there’s mistakes, they should be working with the dentists to fix the mistakes, and not charging them a whole lot of money,” Lachowicz said. “It just doesn’t seem right to me.”

Zajkowski said the new system seems punitive rather than an attempt to find abuses. Dentists make less money serving MaineCare patients, because the reimbursement to the dentist is less than through a privately insured patient or someone paying out-of-pocket.

“No one is getting rich serving these patients,” Zajkowski said. “I don’t think any dentists wouldn’t support a system that really tried to find true fraud.”

Joe Lawlor can be contacted at 791-6376 or at:jlawlor@pressherald.com

Twitter: joelawlorph