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ANTOINE DENTAL CENTER, Petitioner, vs. TEXAS HEALTH AND HUMAN SERVICES COMMISSION OFFICE OF INSPECTOR GENERAL, Respondent. * * * * * * *
) ) ) ) ) ) ) ) ) ) ) ) *
OF
ADMINISTRATIVE HEARINGS
THE ORAL DEPOSITION OF IRWIN K. ORNISH, D.D.S, M.S., produced as a witness at the instance of the Respondent, and duly sworn, was taken in the above-styled and -numbered cause on the 9th day of May, 2013, from 9:36 a.m. to 11:26 a.m., before RABIN' MONROE, Certified Shorthand Reporter in and for the State of Texas, reported by computerized stenotype machine, at the offices of Health and Human Services Commission, 11101 Metric Boulevard, Building I, Austin, Texas 78758.
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A P P E A R A N C E S FOR PETITIONER J. A. "TONY" CANALES Bar Number 03737000 CANALES & SIMONSON, P.C. 2601 Morgan Avenue Corpus Christi, Texas 78465-5624 Phone: (361) 883-0601 Fax: (361) 884-7023 tonycanales@canalessimonson.com OSCAR X. GARCIA Bar Number 07640060 LAW OFFICES OF OSCAR X. GARCIA 302 Kings Highway Suite 112 Brownsville, Texas 78521 Phone: (956) 554-3000 Fax: (956) 554-3248 FOR RESPONDENT DANIEL L. HARGROVE Bar Number 00790822 WATERS & KRAUS, L.L.P. 600 Navarro Suite 500 San Antonio, Texas 78205 Phone: (210) 349-0515 Fax: (210) 349-3666 dhargrove@waterskraus.com JAMES R. MORIARTY Bar Number 14459000 MORIARTY LEYENDECKER, P.C. 4203 Montrose Boulevard Suite 150 Houston, Texas 77006 Phone: (713) 528-0700 Fax: (713) 528-1390 jim@moriarty.com Continued
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A P P E A R A N C E S Continued FOR RESPONDENT CAITLYN SILHAN Bar Number 24072879 WATERS & KRAUS, L.L.P. 3219 McKinney Avenue Dallas, Texas 75204 Phone: (214) 357-6244 Fax: (214) 357-7252 csilhan@waterskraus.com KETAN U. KHAROD Bar Number 24027105 KHAROD LAW FIRM, P.C. P.O. Box 151677 Austin, Texas 78715 Phone: (512) 293-1556 ketan@kharodlawfirm.com
ALSO PRESENT: BEHZAD NAZARI, D.D.S, Petitioner JOHN R. MEDLOCK, Associate Counsel, Sanctions Health & Human Services Commission, OIG ENRIQUE M. VARELA, Associate Counsel, Sanctions Health & Human Services Commission, OIG OIRAM SALINAS, Paralegal, Canales & Simonson
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I N D E X
Title Pages Appearances Index Proceedings Begun IRWIN K. ORNISH, D.D.S., M.S EXAMINATION BY MR. HARGROVE Deposition Concluded Changes and Signature Court Reporter's Certificate Further Certification
1 2 4 5
13 87 88 90 92
E X H I B I T S
NO.
DESCRIPTION
PAGE
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P R O C E E D I N G S (Mr. Garcia, Mr. Salinas, and Dr. Ornish not present.) MR. CANALES: the lawyer for Dr. Nazari. since 8:50. My name is Tony Canales. I'm
It is now 9:35.
deposed Dr. Ornish, pursuant to our Rule 11 agreement. Dr. Ornish is outside. I have with me my client, Dr. Behzad Nazari. I have also with me my paralegal, Ori Salinas. And also have
with me my cocounsel, Oscar Garcia; and my other cocounsel, Tony Goodall. I have been informed by representative of OIG -- I do not know his name -- that Mr. Garcia and Mr. Goodall are not welcome at this deposition. know why. I'd like to have an explanation, first of all, as to why has there been a delay. We were not told why. Second reason is if you don't wanna give an explanation, so be it. But I have Dr. Ornish, who's ready to Very unprofessional. And I do not
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be deposed, and I need to have my cocounsel here. has been with me in this case from day one. withdrawn from the case.
Mr. Garcia
I'd like to know what your objection is to Mr. Garcia so we can pick up the phone and call the judge. MR. HARGROVE: My name is Dan Hargrove. We
represent the Office of Inspector General, Health/Human Services Commission. And it's our understanding, Tony, that Judge Garcia is on the bench. MR. CANALES: MR. HARGROVE: MR. CANALES: MR. HARGROVE: MR. CANALES: No, he's not. Okay. He's not been sworn in. What's his status? He has not been sworn in. He
will be sworn in at the end of the month. MR. HARGROVE: MR. CANALES: still on. Okay. He's in -- some cases he's In this particular
case, he's still a lawyer in the case, dealing with the pleadings. He has not filed any type of motion to withdraw.
He's not a judge. MR. HARGROVE: MR. CANALES: paralegal. And Mr. Salinas is. . . . Mr. Salinas is my full-time
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MR. HARGROVE:
Okay.
And is there an -- a
nonparty expert that you would like to have sit in in this proceeding? MR. CANALES: MR. HARGROVE: No. Okay. So it's Mr. Salinas,
Tony Goodall, and Oscar Garcia. MR. CANALES: MR. HARGROVE: Yes. Okay. Well, it was our
understanding that Judge Garcia was on the bench, so therefore he was not permitted to -MR. CANALES: MR. HARGROVE: Anything else? MR. MORIARTY: MR. CANALES: MR. MORIARTY: attorney -MR. CANALES: myself -I thought I recognized you. very rude a while ago to me. were rude to me. that guy is." did that. And who are you again, for the record? And you were Who are you, sir? I identified If you're stating to us -Is my what? If you are stating to us as an He is not on the bench. Okay. All right.
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MR. MORIARTY: MR. CANALES: MR. MORIARTY: MR. CANALES: identified himself.
Here's my question -I don't know who you are. -- are you stating -I don't know who you are. He
I identified myself.
MR. MORIARTY: questions. MR. CANALES: MR. MORIARTY: a judge as of this moment? MR. CANALES: MR. MORIARTY: why he cannot appear. MR. CANALES: say, sir. MR. MORIARTY: case? MR. CANALES: cocounsel.
He has appeared -- he is my
He has not made an appearance in the case. MR. MORIARTY: And have you given us notice
that he would appear? MR. CANALES: MR. MORIARTY: well -MR. CANALES: If you don't want him, we'll No. Okay. Have you read rule --
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MR. MORIARTY: your paralegal here? MR. CANALES: MR. MORIARTY: back and your paralegal. MR. CANALES: do.
Can you identify yourself, sir? MR. MORIARTY: MR. CANALES: do this. I'm Jim Moriarty. Very, very rude of you guys to Totally -- is this the way
Totally unprofessional.
we're gonna -- we have never had any problem at all with OIG, with Mr. Varela, or anybody else. we're starting this way. MR. MORIARTY: the deposition? MR. HARGROVE: I'm not talking to you. I Are you ready to proceed with I cannot believe that
guy in charge of the deposition? You are, sir? MR. HARGROVE: Yeah. You look a
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MR. CANALES:
I'm pissed.
very unprofessional on you guys' part to do this. unprofessional. Uncalled for -MR. HARGROVE: you're bringing a nonparty -MR. CANALES: MR. HARGROVE: deposition. MR. CANALES: depositions for both sides. MR. HARGROVE: MR. CANALES: never been an objection. MR. HARGROVE: MR. CANALES: now, so be it. MR. HARGROVE: MR. CANALES: All right. Okay. Well. . . . From both sides. A judge.
There has
But all I'm saying is a simple call or a simple inquiry to us would have solved the problem. Goodall. I'm not fighting over
regarding Goodall, so therefore, you know, if you object to him, I will ask him not to appear. MR. HARGROVE: MR. CANALES: Okay. Now, Oscar Garcia is not a
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judge yet.
bench, do you know? MR. CANALES: MR. HARGROVE: MR. CANALES: MR. HARGROVE: already -MR. CANALES: are asking this question. a judge in here? And I don't know why you guys You guys thought I was gonna bring 24th, something like that. Of May? Yeah. 'Kay. So, I mean, it was
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(Mr. Canales and Dr. Nazari left the room at 9:43 a.m.) (Mr. Canales, Dr. Nazari, Mr. Garcia, Mr. Salinas, and Dr. Ornish entered the room at 9:49 a.m.) MR. HARGROVE: Why don't you have the
parties -- everybody in the room announce their presence. I'm Dan Hargrove. I'm with the law firm of
Waters & Kraus, and I represent OIG. MR. MORIARTY: represent OIG. MS. SILHAN: and Kraus, representing OIG. MR. KHAROD: representing OIG in this. MR. MEDLOCK: for OIG. MR. VARELA: for OIG. MR. SALINAS: Simonson. Oiram Salinas with Canales & Enrique Varela, also attorney John Medlock. I am an attorney My name is Ketan Kharod. Also I'm Caitlyn Silhan with Waters I'm Jim Moriarty, and I also
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understanding that you've been appointed to the district-court judgeship and I've you've been confirmed by the senate. Is that correct? MR. GARCIA: MR. HARGROVE: to the bench yet? MR. GARCIA: MR. HARGROVE: or about 24 May, 2013? MR. GARCIA: MR. HARGROVE: MR. GARCIA: As it currently stands. Okay. Could change. I have not. And that swear-in date is on Correct. But you have not been sworn in
IRWIN K. ORNISH, D.D.S., M.S., having been called as a witness herein, having been first duly sworn, was examined and testified as follows: EXAMINATION BY MR. HARGROVE: Q. A. Q. A. Would you please state your full name? Irwin Kenneth Ornish. And where do you live? In Dallas, Texas.
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You need specific address? Q. A. Q. A. Q. A. Q. A. Sure. 8511 Edgemere, Number 302, Dallas, Texas 75225. And what do you do for a living? I'm an orthodontist. And how long have you been an orthodontist? On June the 16th it'll be 48 years. And where do you practice orthodonture? In Dallas, Texas. Do you need an address? Q. A. 75230. Q. A. Q. A. Q. case? A. My role was to evaluate the cases for Dr. Nazari What's the name of the business? Irwin K. Ornish, D.D.S., M.S., Clinic. And what kind of business is it? It's a orthodontic practice. Okay, Dr. Ornish. What is your role with this Yeah. 11661 Preston Road, Number 106, Dallas, Texas
related to the HLD index. Q. A. Q. case? And who is paying you? Dr. Nazari. All right. How much have you been paid in this
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A.
Oh.
offhand, but I would say approximately . . . $7,000. Approximately. Q. A. When were you first hired to work on this case? Oh, the exact date, I don't know. I believe I was
contacted in March. Q. A. Q. A. me. Q. A. Q. A. Q. A. Q. you? A. He asked me if I would be -- consider working on a March of 2013? I believe it was. Or March of 2012? No, no. Of this year. Who contacted you? Mr. . . . Canales? Mr. Canales. I'm sorry. Tony Canales contacted
All right. Yes. And . . . and what was discussed about retaining
case, and he asked me to send him my fees for acting as a expert witness, and, you know, it was agreeable to him and his client, they would employ me to act as an expert witness. Q. A. Did you have a schedule of fees from prior cases? I sent him a schedule of fees.
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Q.
services in other dental or orthodontic Medicaid cases? A. Q. A. Yes. List those for me. There was one case for a Wayne Casson that I did
early in 2012, and then for M&M Orthodontics. Q. A. Q. A. Q. A. Wayne . . . let me -- Wayne Casson? Yes. Is that the name of a dentist? Yes. K or C? C-A -- I believe it's C-A-S-S-O-N. And that was all I did, was evaluated some cases for that. Q. What was the nature of that case? Was it a
Medicaid -A. Q. A. Q. It was a Medicaid case. Hold-payment case? I have no idea. So Dr. Wayne Casson. Was that the very first time Fraud case?
that you acted as a expert consultant or testified? A. Q. A. Yes. Okay. And when were you first hired by Dr. Casson? I was hired
by another attorney.
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Q. A. Q. A.
Who was that? Dr. Robert Anderton. When were you hired? You know, I wanna say it was in the -- I'm thinking I don't have that information
And what happened with Dr. Casson's case? I have no idea. Did you issue a report in Dr. Casson's case? Yes. Did you present that report to anybody other than
Mr. Anderton? A. Q. A. what? No. Do you have that report at your office? Yes. I'm trying to remember. I -- I -- you know
to I can't remember whether I issued a report in that case or not. Because I reviewed the cases, and then it became And it also happened from my standpoint in that.
stagnant.
And I can't remember if I did a report for that. Q. A. Q. Dr. Casson: Where does he practice dentistry?
orthodontic case?
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A. Q. A. Q. A. Q. that case? A.
It's an orthodontic case. Did you consult with Dr. Casson about your report? No. And Mr. Anderton hired you -Mm-hmm. -- to -- as a consultant or testifying expert in
And
I'm not sure how you define it. Q. Well, what exactly was your service that you
provided to Mr. Anderton? A. I evaluated the cases based upon the HLD index
as . . . provided in the Texas Medicaid Directory. Q. report? A. I -- I can't remember -- I -- I know I sent in You don't recall if you did or did not provide a
copies of my evaluation, and I cannot remember if they requested a report, other than the evaluation sheets. Q. And in that case, the Dr. Casson case, did you
provide any sworn testimony in that case? A. Q. No. The Dr. Casson case, that was your very first time
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A. Q. answering.
I'm sorry. -- question, and then I'll give you the courtesy of
The Dr. Casson case was the very first case you have provided expert services of any kind in an orthodontia case; correct? A. Q. Yes. Have you provided any type of expert services --
testifying; consulting -- in any other matter other than orthodonture? A. Q. No. Now, the Dr. Casson case, you don't know what
happened, the resolution of that case; correct? A. Q. I have no -- no idea. And to sum up, you may or may not have issued a
swear under oath that I did. Q. What would you have to look at to see if you
actually did issue a report? A. I have some records at home of . . . and I have to
look and see if that included a report in there or not. Q. And you would have maintained those records had you
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Q.
Okay.
What was the second case that you provided -A. Q. A. Q. In -Hold on. Sorry. So what was the second case you provided expert We gotta -- can't talk over each other.
services in? A. Q. A. M&M Orthodontics. Where were -- when were you first hired for M&M? Again, I don't have the exact date, but sometime in I believe.
And who hired you? Again, it was through Dr. Anderton. And then later
with Mr. Canales. Q. A. Q. provided. A. I did the same services. I evaluated cases related And I was All right. Mm-hmm. . . . tell me exactly what you -- what services you In the M&M case . . .
deposed in that case. Q. case? A. Q. Other than deposition, no. And Dr. Anderton hired you? He was the attorney Did you provide more than one report in the M&M
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for M&M? A. Q. A. Q. case? A. As I understand right now, it is scheduled He was one of the attorneys for M&M. And then Mr. Canales got involved? I learned that Mr. Canales was involved. And what's the status, if you know, of the M&M
tentatively for trial sometime in -- or hearing in -sometime in July of this year. Q. Sounds like the start of your career as a
testifying expert was through Dr. Anderton. A. Q. A. Mm-hmm. What's your relationship with Dr. Anderton? Dr. Anderton is a longtime friend. We were in And
college together.
over the past 48 years, we have had patients in common. Q. A. Okay. As a general dentist, he referred patients to me as
a specialist. Q. Okay. All right. Other than the M&M case and the
Dr. Casson case, what other orthodontia cases have you provided expert consulting or testifying services in? A. Q. Just this particular one, the Nazari case. Okay. So you've been hired to do -- to provide
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A. Q. A. Q.
Correct. That's it. That's it. Are you . . . are there any on the horizon that
you're gonna provide expert services? A. Q. A. Q. A. Q. I have no idea. Okay. I've not been -Have you been asked to provide additional services? No. Have you ever been accepted by a court as a
testifying expert? A. Q. A. Q. A. Q. A. Q. A. an hour. Do you consider deposition a -Mm-mm. No, then I guess not. Okay. I've never been to court. And in this case, who is paying your fees? Dr. Nazari. All right. And what is your hourly rate?
The hourly rate is -- for reviewing cases is $300 And then for depositions and court appearances,
it's $400 an hour. Q. Okay? All right. I wanna talk about your credentials.
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A. Q.
have been practicing orthodontics -- orthodontist -orthodontics exclusively for 48 years. I . . . I have . . .
received some training by the former director Jim Orr on utilizing the HLD evaluation system as provided in the Texas Medicaid . . . Provider's Manual. And. . . .
So I feel that that gives me the ability to qualify cases based on the HLD index. Q. A. Q. Okay. So your education.
qualifications to offer expert testimony in this case is you've been to dental school, and you have a master's in. . . . A. I was in dental school for four years. Two years
in a residency program in orthodontics. Q. A. Q. A. Q. A. Okay. Mm-hmm. Your 45 years of practice? 48. 48 years of practice. Mm-hmm. Your education.
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Q.
In that 48 years had you ever done anything else? Deal with any other type of
Were you a real estate salesman? It's a real-estate-salesman license, but I've never
sold real estate. Q. A. Q. business? A. Q. license? A. Q. A. To help me evaluate investments. Okay. What kind of investments? No. Why'd you get a real-estate-agent/-salesman When did you get your real-estate-salesman license? Oh, my god. It's been 30 years ago, probably.
like doctors are always good sources for people to try and pawn off deals on, and I felt like it would be very helpful, and give me a potential to invest some in real estate with some understanding. Q. In addition to practicing orthodontics, do you also
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A.
try and do to preserve my retirement in the future is looking to different types of investments. Q. What type of investments? What? I do Financial products?
Real estate? A.
have stocks. Q.
are that qualify you to be an expert in this case, talked about your education; 48 years of practice. A. Q. Mm-hmm. You mentioned that you went to a seminar? That Jim
Orr presented? A. Dr. Orr. Q. A. Tell me about that. Well, he sat down. Went over many cases with me. Wasn't a seminar. It was a training session with
Showed me how to evaluate these -- how to utilize the system. And to use my own judgment in doing these.
That's -- that's basically what it was. Q. A. When . . . you said it's a training session? It was -- it was a instruction session. Not a
utilize and how to score the system. Q. All right. An instruction session. Is that --
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A.
Right.
formal instruction in the sense that it was documented as the thing that you paid for, a listed session. one-to-one basis. Q. So in this meeting with Mr. Orr, it was a It was on a
one-on-one session with you? A. Q. Mm-hmm. All right. So . . . where did this informal
instruction session occur? A. Q. A. It occurred in Austin. Where in Austin? It was in a conference room at the office -- well, In the office building that
Dr. Anderton had in Austin. Q. A. office. Q. in; right? A. Q. A. Q. A. Q. Right. One of his offices. It was in Dr. Anderton's -Well, yeah, the conference room wasn't in his It was downstairs in the building. It was in the building that Dr. Anderton officed
So not a State building? No. Do you recall the name of the building, or. . . . No, I don't. Where it was located? Downtown Austin?
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A.
It's -- no.
it's . . . I get lost when I come here -Q. Sure. This might help. same building? A. Q. A. Yes. In his. . . . Is Dr. Anderton in that
I'm sorry? I was just gonna say his office is up on . . . The conference room's down on the
together in this conference room? A. Q. A. Mm-hmm. How did that session come to be? It was -- when I was first employed by
Dr. Anderton, I met with Jim Orr, in Austin, so that I would understand how to utilize the HLD scoring system. Q. right? A. Q. Mm-hmm. I believe it was. So that would have been in the spring of 2012;
up with that. Q. And what were those records -- what might they be?
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A. Q.
Only the date that they were there. I mean, would this be like a calendar entry or a
a . . . on my accounting entry of the time that I spent in Austin. Q. Okay. You billed Dr. Anderton for attending this
relation to one of the cases. Q. So I'm still missing something. How did this
phone and call Orr or did -- did someone -A. No, I was in -- I was . . . facilitated -- someone
facilitated the meeting. Q. A. Q. A. Q. A. Q. A. Q. A. Who? Dr. Anderton. Okay. Mm-hmm. Dr. Anderton had you meet with Mr. Orr. Mm-hmm. Correct? Mm-hmm. And -- gotta answer "yes." Yes. I'm sorry. So just to -- I wanna be fair about this.
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Q.
Austin, Texas; correct? A. Q. correct? A. Q. Correct. And you may have some records that ref- -- that Right. And it occurred in Dr. Anderton's building;
basically memorialize that meeting; correct? A. Orr. Q. correct? A. Q. A. No. Dr. -- you billed Dr. Anderton for the meeting? Let me think about that. I believe I did -- it It was Dr. Casson that I Yes. It won't specifically say that I met with Jim
But I was there meeting with Dr. Anderton. And you billed Dr. Casson for that meeting;
it was in that case. Q. Prior to the face-to-face meeting with Jim Orr, did
the two of you exchange any e-mails or correspondence? A. Q. A. With who? Orr. Did I say Jim? What's his name?
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Q.
I don't wanna keep saying spring of 2012. Do you have -- do you have, like, a pinpoint
be evasive.
exactly which dates that I was in Austin for that. Q. A. Q. this? A. Q. I flew. And coming to Austin, the sole purpose of coming to You live in Dallas; right? Yes. So you -- did you fly down/drive down to Austin for
Austin was to have this meeting with Orr; correct? A. Not just with Orr. But with Dr. Anderton, Mr. Orr,
and a few other people. Q. At this meeting with Orr, did he give you records, Anything?
What did he give you? He gave me copies of the Texas Medicaid Provider's
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Q. A.
somebody -- Mr. Orr was getting compensated for this meeting? A. Q. I don't know for sure. Do you have a reason to believe he was getting paid
for this meeting? A. Q. A. Q. I would think so. By whom? That I don't know. Would it most likely be that he was getting paid by
Dr. Anderton? A. I don't know if he's getting paid directly by I have no idea.
have this meeting with you; right? A. Q. I . . . it's my belief. I mean, he wasn't doing it out of the goodness of
his heart; right? A. Q. I wouldn't think so. So at this meeting he gave you printouts from the
Texas Medicaid Provider Procedures Manual? A. Q. Mm-hmm. Prior to this meeting had you ever reviewed the
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Texas Medicaid Provider Procedures Manual? A. Q. Sections of it, yes. So I'm gonna -- for going forward, I'm gonna call So we're on the same page. Okay?
the manual he gave you? A. I think he gave me a whole copy of -- a copy of the But specifically we worked on the part that he
whole manual.
showed me, and the part that we were reviewing was related to the scoring of the HLD index. Q. Do you remember which edition -- which
version/year -- of the manual he gave you? A. Q. A. it's -Q. A. Yeah. -- the section related to the HLD scoring. And No, I don't. And what section of the manual? I -- I can't give you -- quote the numbers, but
related to the qualifying for orthodontic treatment under Medicaid. Q. And sounds like he was giving you some training on Or score sheet?
basically how to score the HLD scoring? A. Q. Yes. And tell me.
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instructing you about how to score the HLD score sheet? A. Basically just read -- he read the manual, tried to
describe what each one was saying, and that was it. Q. A. Q. How long did this meeting last? I would say . . . approximately an hour. Other than how to score the HLD score sheet, what
else did y'all talk about in this meeting? A. Q. A. Q. A. Q. A. After we did that, we went over some cases. Okay. That he wanted me to evaluate. That was Orr? Mm-hmm. Okay. So Orr wanted you to evaluate cases? They were cases that he
was working on. Q. Are those cases different than the three cases you
mentioned earlier? A. Q. A. Q. A. cases. Q. When you say "cases," are you referring to patient No. So they're new cases; right? They're -Cases that we have not discussed yet; right? No. They're -- I think they were Wayne Casson's
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A. treated. Q.
Patient cases.
Got it.
All right.
specific definitions in the -- that are applicable to the HLD score sheet that you and Orr discussed, I mean . . . what terms was he -- were . . . I -- I just don't get it. I'm --
I'm just -- I can't picture what was goin' on in that room. And you were there, and I wasn't there. tell me. So I need you to
What he was tellin' you as it relates to the HLD It's been pretty vague so far.
score sheet.
But specifically what was he tellin' you about the HLD score sheet? A. He was re- -- showing me, "This is -- this is a These are the instructions that you follow. And that's basically
For example, "ectopic eruption," "malocclusion," "handicapping," terms like -A. He went over his -- as they were listed in the
manual itself. Q. Did he have any of the materials with him when he For example, an orthodontia
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Q. A. Q. A. 'em to me. Q.
Okay. Right.
All right. I mean, he could have had 'em, but he didn't show
you need to go get this training in 2012? A. The Texas Medicaid -- or the manual doesn't
necessarily follow trainings or qualifications that we determine -- or rather that we use in determining the need for treatment. Q. I wanna -- we got kind of sidetracked here. I
wanna go back to -- we started off here with your -- your credentials, to -A. Q. A. Q. Sure. -- to provide expert testimony in this case. Sure. Talked about your education. Talked about your 48
years of practice.
you know -- what -- what else in your background makes you an expert in this case? A. Well, I'm not sure what other qualifications I
need, other than the fact that I am a practicing orthodontist. I've done it for 48 years. I should have the
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ability to qualify cases as well as anyone else that has trained -- that is a trained orthodontist, based on their education and their professional practice. Q. So you would agree with me that your years of
practice in orthodontia qualifies you to be an expert in this case. A. That, and my training. My original -- my basic
training, and the continuing-education courses that I take over the years to stay up with my profession. Q. Okay. Have you -- have you ever written any
scholarly articles in the field of orthodontia? A. Q. No. Have you ever given any presentations in the field
for four years. Q. A. Q. And that was back in the '60s? 1965 to 1969. Since 1969 have you given any presentation in the
field of orthodontia -(Mr. Kharod left the room.) Q. A. Q. A. (BY MR. HARGROVE) -- to other orthodontists?
Only on a personal basis. What do you mean by that? People ask my opinions, and I have -- a lot of the
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orthodontists in Dallas respect my opinion and will come to me for a second opinion when they're having problems. Q. practice? A. Q. I'm not sure what an occlusionist is. Have you ever picked up the phone and called an Have you ever used an occlusionist in your
educational capacity since 1969; correct? A. Q. correct? A. Q. A. That's correct. But are you board eligible? Yes. (Mr. Kharod returned.) Q. A. (BY MR. HARGROVE) What does that mean? True. Not a formal educational practice.
present a certain number of cases and do a examination, written examination, and present a number of cases to the American Board of Orthodontics. In 1965, there were very few
orthodontists -- a small -- only a smaller percentage of orthodontists became board certified, because it was a very
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time-consuming thing to do, and there was a lot of financial involvement in it. So it wasn't as important in the early
stages of my practice as it has become today. Today the qua- -- in order to qualify for it, you're allowed to -- to do some of the testing while you're still in your residency. Years ago, you had to be in
practice for a number of years before you could even apply to be tested for your boards. Well, back in the '60s, they're -- getting a practice going, raising a family, the time and the reward was not that critical to me just to have another certificate. That's the only difference. Q. A. Q. A. Are you board eligible? Board eligible, yes. What does that mean? It means that you meet all the qualifications, I have
the education/I have the training that allows me to take the testing. Q. Would it be fair to say that somebody who's board
certified in orthodontics might have, you know, credibility to be a testifying expert in a case like this? A. They'd have credibility. I don't know it would be Most of the
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orthodontists that were trained years ago that are not board certified, but they're certainly qualified. Q. If you could pick out an expert for a case like
this, I mean, what criteria would you -- would you want in that expert? A. I would want someone who is board qualified,
someone who I respect as a . . . responsible orthodontist, who I respect their ability in treating cases. main things that I would look at. Q. What about if they were board certified? Would Those are the
that increase the -A. Q. That -Hold on. -- that increase their stature in your eyes? A. eyes. Not in my eyes, but it might in someone else's And again, as I said, years ago board certification Was not
was not a crit- -- well, I shouldn't say critical. stressed as it is today. Q. All right. Let's go back to this meeting.
Well, first of all, have you . . . have you . . . done Medicaid . . . have you billed Medicaid? Texas Medicaid? A. Q. A. Not directly. What do you mean? I've worked with a friend of mine at a clinic for
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about eight or nine months in which they did Medicaid treatment. Now, I . . . was not responsible for billing
Medicaid in the clinic that I worked in. Q. A. Q. A. Q. A. Q. A. Q. A. Q. Your friend -- who's your friend? Dr. Pat Brady. Pat Brady? Mm-hmm. Male or female? Male. So nine to ten months? It was around nine to ten months, approximately. When? This was in . . . part of 2011 and 2012. Okay. And Pat Brady, a friend of yours who's an
orthodontist -A. Q. A. Mm-hmm. -- invited you to join him with the practice? Right. He actually was with a clinic that he was
responsible for the orthodontic services of the clinic. Q. A. Q. A. What was the clinic's name? Bear Creek Dental -Bear Creek? I believe it's Bear Creek Family Dentistry. I
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A. Q. A. Q. A. Q. A.
They have several offices in Dallas. Do you know how many offices? Offhand, no. More than five? I don't think more than five. So . . . three? I'd say they may -- three to four. I don't -- I
wouldn't -- it could be five, but I don't believe it's any more than five. I haven't been in . . . involved with 'em
for some time, so I don't know if they've expanded or not. Q. A. Q. A. Q. A. Q. Which office did you work at? The one on Spring Valley and Coit. Spring Valley and . . . spell that? C-O-I-T. Does it have an address? I'm sure it does, but I couldn't tell 'ya. When you go . . . so Dr. Brady invited you to Bear
Creek Family Dentistry to work in his orthodontics clinic there. A. Q. A. Q. period? A. Well, I was -- maintained my practice, but I worked Mm-hmm. And . . . did you still have your practice? Oh, yes. So did you maintain two practices during this
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in the clinic for him. Q. A. Q. Creek? A. Q. No, I don't. All right. I wanna go back -- so you said that you You performed orthodontic service for Do you still have a orthodontics practice? Oh, yes. Do you recall the month that you started at Bear
Medicaid beneficiaries at Bear Creek; right? A. Q. Right. But I'm a little bit confused. You said you didn't
So tell me about that. I didn't do the billing. I was paid by Dr. Brady,
and the patients . . . the billing was done by Bear Creek. Q. A. Q. A. Q. A. Q. A. Q. Who . . . is Brady the owner of Bear Creek? No. Who is the owner? Give me a minute, I'll think about it. Okay. I'm sorry. Male? But. . . .
Female?
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A. Q. A. Q. A. Q. A. Q.
It depends.
Relative.
Yeah, I -- trust me. I think he's around his 50's. Okay. I -- I'll think about it in a minute. Okay. Okay. Get on the Internet if we have to. Okay. The -- the . . . Tell me what you did We'll circle back.
at Bear Creek. A. I performed orthodontic services in the form of I also did some evaluation using the HLD
Sounds like that started maybe in the summer of Or 20- -Prox- -- approximately. Could have been spring or
And it carried over into 2012; right? Right. Was your -- what was the nature of your -- how were
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A. Q. A. Q.
On a daily basis. Was he your employer? He was . . . Yes, he was my employer. Did he cut you a -- were you a W-2 employee or did
he give you 1099? A. Yes, I did get a 10- . . . uh . . . trying to Whatever it was, I
would have been a 1099. Q. Was this your first experience with serving a
2011, you had never treated a Medicaid beneficiary; correct? A. Q. Correct. And since you've left Bear Creek, you have not
treated a Medicaid beneficiary; correct? A. Q. Correct. So the entire universe of your Medicaid experience
is the nine or ten months at -- which you were at Bear Creek; correct? A. Correct.
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Q.
contractor of Dr. Brady; correct? A. Q. Creek? A. The checks came from Brady. So I assume I was Mm-hmm. Or were you an independent contractor of Bear
independent contractor of Brady's. Q. Whose TPI/NPI number were you using? Whose
provider identifier were you billing under? A. Actually . . . you know what? They had to be
billed under Bear Creek. Q. A. All right. So the services you performed --
they were billed under Bear creek, so I'm not sure. Q. Sounds like the -- the billing submitted to
Medicaid for services that you provided to Medicaid beneficiaries at Bear Creek were billed under Bear Creek's provider number? A. billing. Q. All right. And . . . was this a full-time position Is that fair? Does that sound correct?
at Bear Creek? A. Q. A. No. How many days a week were you working there? One.
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Q. A. Q.
your private practice? A. Q. Mm-hmm. And on average, how many kids. . . . What was the -- the population at Bear Creek? A. Q. I'm not sure what you mean by that. The -- the percentage of Medicaid beneficiaries at
Bear Creek relative -- compared or -Was it exclusively Medicaid? A. no idea. Q. So we know it was a -- that patient population at I don't know. It was a high percentage, but I have
Bear Creek was a high percentage of Medicaid beneficiaries; correct? A. Q. In the orthodontic section. In the orthodontic section? Did you work in the dental section? A. Q. No. You -- you do not do dentistry or pediatric
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Q.
is it closer to 100 percent of the patient population at Bear Creek in your experience for Medicaid beneficiaries? A. Closer than what? I have really no idea. I would
think that the majority were Medicaid patients, but I have no way of knowing what -There were some private-pay patients there, but I have no idea which ones were which. Q. So, I mean, we have majority. So we're above 50. So --
And . . . you don't think it's quite 100 percent. A. Q. I know it wasn't 100 percent. Okay.
Was the percentage closer to 100 percent or was the percentage closer to 50 percent? beneficiaries? A. I can't testify . . . truly to that, because I Of Medicaid
don't really know. Q. A. What's your belief? My belief, it would be -(Mr. Medlock left the room.) THE WITNESS: 50. Q. (BY MR. HARGROVE) Did you transfer any of your -- closer to 100 than closer to
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A. Q. A. patients. Q. A. Q.
No. And how did you get your patients at Bear Creek? They weren't my patients. They were Bear Creek
Well, you had a . . . In other words -. . . a professional relationship with the child
that you're treating; right? A. Yes, but there were other orthodontists that saw
the patients. Q. A. Q. A. Q. A. Q. A. you. Q. A. Q. A. Q. Okay. Yes. Tafel. Robert Tafel is the owner. You were one of several orthodontists? That's true. How many? I don't know the number. More than five? No. I know -- I know of . . . Dr. Brady.
Have you figured out who the owner is? It's coming to me. I'm sorry. I'll get back to
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Did you . . . when you . . . I mean, did Tafel interview you or. . . . A. Q. No. Okay. Did he have anything to do with you coming
into his clinic? A. Q. A. Q. A. No. Did you ever talk to Tafel? Oh, yes. About -After -- after I -- after I went to work with
Dr. Brady, I met and visited with Tafel several times. Q. A. Q. And what -- what -Social basis. Social basis? Would you ever discuss professional
matters or. . . . A. Only in the fact that he would come in periodically I like the way the I appreciate you being
and say, "You're doing a good job. orthodontic department is working. here." Q. A. Q. A. Q. A. That type thing.
Is he a dentist or orthodontist? He's a dentist. Did he ever discuss your compensation with you? No. Did he ever discuss production with you? No.
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Q.
I mean, I
know you were paid on a -A. Q. A. Q. A. Q. A. Q. A. Q. I was paid on a daily basis. Every -- daily -- every Tuesday they paid you? Mm-hmm. For the work that you performed that day or for -For the daily service. Was it a percentage of -No. -- production? No. How'd they -So salary? A. Q. A. Q. A. It was a straight salary per day. And how much was it? It was $1500. $1500? Started out at 1400, and then after a few months,
Dr. Brady felt like it should be -- it -- he felt like the going rate was 1500. Q. A. Q. Okay. So he raised it. I'm sorry. I missed the last part. I mean, the
first part. A.
1400 a day.
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Q. A.
the going rate should be $1500 a day." Q. And while at Bear Creek, did . . . did you ever
start a Medicaid beneficiary in braces? A. What do you mean by "start"? (Mr. Medlock returned.) Q. (BY MR. HARGROVE) Well, you're the -- you're the
orthodontist. beneficiary. A. Q. A. Q.
Yeah. At Bear Creek did you ever start a child on -I put braces on children, yes. And did -- how many . . . How long does it take,
generally speaking, on average, that course of treatment of braces? A. 24 months. Q. So while at Bear Creek, you never completed an A year? Two years?
entire braces treatment while -A. Q. No. -- at Bear Creek. And that's because you left nine or ten months after you started; correct? A. Right.
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Q. A.
patients, they did not have the patient flow to justify me being there. Q. All right. So you would have left, it sounds like,
maybe April or -- at the latest of 2012? A. I think it was before that. I don't remember when
Medicaid stopped accepting orthodontic cases. Q. What record would show your last day of employment
with Bear Creek? A. I would have to go back and try and check in my
checkbook . . . to see when the last time I saw -Q. A. Q. A. Maybe that last 1099 would reflect your . . . Probably would. . . . your last day of employment? It just shows the -- the 1099 So it doesn't show a date.
Not necessarily.
And did you ever -- while you were at Bear Creek ever look at or see or talk about production reports? A. Q. No. Did . . . did you -- so tell me the circumstances I
of your -- of your -- of, you know, leaving Bear Creek. mean . . . did you just get up and leave? A. No. Did you quit?
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down. Q.
Sorry."
taking. . . . A. Q. A. Stopped approving orthodontic cases. When did that occur? You'd probably know better than I would. I can't
started investigating the orthodontic Medicaid programs. Q. But -- I mean, it . . . from what you're tellin'
me, the -- the change in any Medicaid policy had to occur before you left Bear Creek; right? A. Q. Yes. And that's what I'm trying to get at, is, you know,
when exactly you left Bear Creek. A. I -- as I said, when Medicaid put the hold on all
the new cases, before they switched to insurance-company administration of 'em, at that point was when I was no longer employed there. Q. The whole -- was it -- that hold unique to Brady or
Bear Creek or was it -A. No, it was unique to everybody that did Medicaid
said, "I can't afford to keep you anymore," and you went back?
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A.
Q.
that you had started braces? A. Well, they weren't my patients, as I said. I was
So they
were still receiving treatment by Dr. Brady, and there was another full-time orthodontist there, at the time. Q. We were gonna list the names of the orthodontists.
Do you remember who they were? A. Q. A. One of 'em was Dr. Jack Bell. Who else? Dr. Randy Ray. And . . . Jason . . . I'm sorry. I can't remember. I'm
who was there full-time. fact, none of 'em are. Q. A. Q. A. Q. None of 'em are?
Except Dr. Brady. Dr. Brady's still there? Yes. Okay. But the patients that you started . . . I
would think that there's some, you know, billing identifier or provider identifier on those -A. It probably --
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Q. A. Q.
-- associated with those patients; right? There has to be with Bear Creek, yeah. Okay. So I -- going back to a couple questions
before -- earlier . . . A. Q. Mm-hmm. . . . you left. You didn't take those patients
To your practice.
They weren't my patients. Okay. They didn't follow you to your practice;
think, at Bear Creek; right? A. Q. Yes. Okay. How did the -- that patient population at
Bear Creek -- how is it the same or different than the patient population in your private practice? A. Patient in my pr- -- private practice are either
private-pay or paid -- reimbursed somewhat by insurance companies. And . . . doesn't require State authorization
prior to beginning treatment. Q. Dallas. A. Q. You have to excuse me. 'Kay? Mm-hmm. I grew up on the border. Dallas -- so your . . . I'm not familiar with
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your neighborhood, in your practice, I mean, what are the -what's it like? What's it like? A. Q. It's . . . an affluent area of practice. And that's how those parents can afford to pay an I mean, terms of affluence or demographics.
orthodontist and put braces on their kids? A. Q. A. It's not necessarily all affluent pe- -- patients. All right. We have patients that also are laborers. They
don't have to be affluent. Q. A. Q. A. But they have money to pay for braces. They pay for it, yes. Okay. We work out financial arrangements with 'em. To
try and make it affordable for 'em all. Q. Goin' back to Bear Creek. What training, if any,
did you get on how to bill Medicaid? A. I -- as far as billing, I have no idea. I have no
was entitled to braces, what training did you get at Bear Creek? A. I was shown the HLD charts, as well. And after I
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after some of the training I had with Dr. Orr, they asked me to evaluate 'em on the HLD index. Q. Well, I thought your meeting with Orr was after you
left Bear Creek. A. see. Let me think about that. Well, it's . . . let's I'm sorry.
I -- my training, then, was just basically shown by Dr. Brady at that point, how he filled 'em out. He
would then -- after he filled 'em out he asked me to try and do it in a similar manner; give my opinion based upon those. Q. A. Q. At Bear Creek did you actually read the manual? I read those parts of the manual. But your training on how to interpret that manual
came from Dr. Brady? A. Again, not how to interpret it. Just to read what
it says and the rules to follow. (Mr. Medlock returned.) THE WITNESS: own. Q. (BY MR. HARGROVE) At Bear Creek, did you But did you submit The interpretation was on my
request -- they're Bear Creek patients. any preauthorization to TMHP to -A. Q. A. I did not. Okay. Personally.
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Q.
All right.
A. Q.
to TMHP to -- to do orthodontia work on a Medicaid beneficiary? A. Q. Creek? A. Q. A. Q. A. Q. A. Q. A. Q. Yes. Okay. How many? No. Did you ever sign any HLD score sheets at Bear
I couldn't tell you. More than 100? I don't think so. Less than 100? Yeah. Between 50 and 100? I would say . . . yeah, between 50 and 75. And . . . did you have a dental assistant who would
help you score the HLD score sheets? A. Q. No. You did it yourself?
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A.
Yes.
I scored 'em.
there, because . . . they . . . a number of the patients didn't speak English; they spoke Spanish. Spanish. So I had an interpreter. And I speak no
Or a dental assistant
would be there to hand me instruments when I was evaluating 'em. But not do any of the scoring. I'm sorry. Q. And so you've treated -- it sounds like you've
completed in your -- in your professional capacity -- not as an expert. But you've completed between 50 and less than 100
While at Bear Creek. Yeah. And your training on how to complete those score
sheets came from -- from Dr. Brady. Is that fair to say? A. Basically just showing me the -- yes. The score
instruction from any other -A. Q. A. Q. No. Hold on. I'm sorry again. So other than Dr. Brady's training at Bear Creek,
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did you receive any other instruction -A. Q. A. the form. I wouldn't really call that training -Well, what would you call it, then? Just basically, "This is how you do it. This is the form to fill out." This is
There was no
instruction of, "Now, you look at this form and you measure here and you measure here." form." (A woman entered the room, to adjust thermostat, and left.) THE WITNESS: put in these squares." Q. A. Q. "You fill it out. You have to It was a matter of, "This is the
The interpretation was entirely mine. All right. Did you . . . did you -- what other
steps did you perform to submit the preauthorization for a Bear Creek patient? A. Q. None. None? Did Bear Creek staff take care of that for you? A. Q. Yes. Not for me. For Bear Creek.
For Bear Creek. And just to sump sum up. Your . . . You
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role at Bear Creek was limited to filling out the HLD score sheets; correct? A. Q. Correct. Do you know how many of your 50 to 100 patients
were approved for orthodontia work by Medicaid? A. Q. A. Q. A. Q. No. Do you know if any of 'em were rejected? Possible. I have no way of knowing.
Is it your belief that any had been rejected? I have no idea. Wouldn't even speculate on it.
Did you ever have a parent tell you that, you know,
or did you ever have to tell a patient that their preauthorization had been denied by TMHP? A. Q. No. That was not my job. What did Dr. Brady say about the --
All right.
the -- the -- the -- the probability of these preauthorizations being approved by TMHP? A. Q. Never discussed. Okay. Do you know if any of his patients had ever
been denied based upon a preauthorization? A. I don't know for a fact, but I would imagine that
had he been doing it for several years, there had to be some rejections. Q. A. But you don't know. I don't know for sure. I can't tell you that.
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Q. cost. A. Q. A. Q.
And at Bear Creek you didn't have to cover your You were just paid a daily wage. Right?
Bear Creek I was just paid a daily wage. So goin' back to your -- your private practice. Mm-hmm. Sound like . . . almost -- there's no Medicaid
population at all. A. Q. None. Okay. And in -- these are kids whose parents or
guardians can afford to pay for braces, or they have insurance; right? A. Q. It's not just children. Okay. It's adults. So the -- what
So . . . that's interesting.
is the . . . the percentage of pediatric orthodontia you do compared with adult orthodontia? A. Oh, I'd say it's about 50/50 now. May even be --
mean, what's -- just generally speaking, what are the differences between an adult orthodontia patient compared with, you know, a child? MR. CANALES: Q. A. (BY MR. HARGROVE) Okay. Objection to the form. You can answer.
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much more complicated cases because of missing teeth, worn teeth, and there are a lot of other factors involved in that. Adults have porcelain crowns; metal crowns that are
difficult to get attachments to stay on. So adult cases in many areas can be much more difficult. Q. And throughout your practice, has about half your
patient population been adults? A. Q. A. No. Majority children? Earlier years it was children. But as the -- as
the profession changed and the . . . social aspect of . . . in the population, people became -- adults became more and more aware of the availability of orthodontics and what can be done with orthodontics for adults has expanded, I believe the statistics show that more and more practices have a higher percentage of adults than they did years ago. Q. So from about 2005 to the present, your practice,
is it about 50/50 now adult -A. Q. Even before that. Before that? Okay.
So when did it start? A. time. Oh, I'd -- it's hard to say. Just gradually over
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patients.
need teeth moved around before they can do the restorations. So my practice -- and I can't tell you exactly what that is. As you mature in a practice, there are a lot of dentists who go more and more to restorative, so it's dentists that I've known for a long time. And they need teeth moved before they
could do the restorative work. So just gradually it's gone to where I have a larger percentage of adults than children. Q. Would it be fair to say that over the past ten
years majority of your patients are adult patients? A. Q. A. Q. If you mean by majority more than 50 percent -Yeah. Probably. Okay. Yeah, it's gonna be close.
compares with Bear Creek, what are the demographics, the racial demographics, of your practice? Anglicans? A. It's a combination. The . . . Hispanics, But we also have some Asians. Are they mostly
At Spring Valley what was the racial composition? The racial composition I would say was very high
Hispanic and --
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Q. A. Q. A.
'Cause you mentioned earlier that a lotta these -Yes. -- patients don't speak English. It was very high Hispanic. I would -I would -- I would --
(Mr. Medlock and Mr. Garcia left the room.) THE WITNESS: -- estimate that it was
probably about 70 percent -- 65/70 percent Hispanic -(Dr. Nazari left the room.) THE WITNESS: -- 25/30 percent Afro-American,
and a small percentage of Anglo. Q. (BY MR. HARGROVE) Do you know how Tafel/Bear
Creek -- do you know how they were able to recruit their patients? A. Q. A. Q. A. Q. A. Q. A. Q. I have no idea. Did you ever ask? No. Do you ever discuss it with Dr. Tafel? No. What about Dr. -Brady? Brady, yeah. No. Do you think there's a different standard of care
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A.
the same level of care in their braces compared with one of your private-paying patients? A. There were limitations imposed by Medicare that did
not allow you to do certain things that you do in private practice. Q. A. So is it your -It doesn't mean that it's a less standard. It's
just that . . . the limitations of Medicaid limit you to certain things that you can and cannot do. Q. Well, money's always a limitation. Even with
But I might be limited in what I could do to 'em. But the same standard of care as it relates to a
professional applies; right? A. Q. In my -- as far as I'm concerned, yes. And you would want that to be the case; right?
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A.
Absolutely.
Same standard.
services I can provide for 'em. Q. It would be unacceptable for -- to treat a Medicaid
beneficiary with a -- at a lower standard of care compared with a private-pay; right? A. Q. In my opinion, yes. Okay. MR. HARGROVE: All right. Let me take a --
let me just take a -- go off the record for two minutes. (A recess was taken from 10:53 to 11:00 a.m.) (Ms. Silhan and Mr. Kharod not present.) Q. A. Q. (BY MR. HARGROVE) Mm-hmm. Yes. Okay. Dr. Ornish . . .
adolescent patients, what percentage do you estimate that actually receive full banding braces? A. Hmm. I'd say probably . . . 75 percent. 75 to
80 percent. Q. Do some of the children get lesser forms of Like a retainer, for example?
orthodontia? A. Q.
I'm not sure what you mean by that. Well, so I'm not the expert. You are. So if a
child has -- presents at your private practice and -and. . . . I mean, what circumstances do children
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along with the concept of -- promoted by the American Association of Orthodontists, that we like to see patients at approximately age seven. Not all need treatment at that age, And it allows us
then to follow patients to -- as they develop to -- if interceptive treatment, as we call it, is needed, we can do it at a time we feel is most optimal for that individual patient. Now . . . does that answer your question? Q. Not really. So a patient presents his child to you in private practice. A. Q. A. Okay. Why are they there? Either the parent wanted to know why they -- wanted
to know if the child is in need of orthodontic treatment, or they were referred by a dentist. Q. And a lot of parents want their kids to have pretty
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right? A. part. Q. practice. A. Q. teeth. But it's an important part. Right? It's one of the parts of my private practice. I mean, my child, I wanted -- he wanted straight So it was mostly cosmetic. That's typical of a lotta In your private Aesthetics is an important part. Not the only
parents; right? MR. CANALES: THE WITNESS: Objection to the form. Typically, yes. Some of 'em
are having functional problems. Q. (BY MR. HARGROVE) Okay. If you had to put a range
on it, your patients in private-pay, what's the percentage of kids who just wanna have straight teeth compared to kids who just need intervention with orthodontia? A. For health reasons.
children don't want braces, but . . . (Mr. Kharod entered the room.) THE WITNESS: inquisitive to find out. . . . the parents are . . .
whether they are coming in because they're concerned about long-range function or long-range appearance of the teeth -(Ms. Silhan returned.) THE WITNESS: -- something brings 'em into
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the office. But percentage-wise, I would have to say the public's perception of orthodontics is primarily aesthetics. As the public perception. for children. Q. Something we're trying -- that's
because a lotta patients are sent to me by dentists for functional reasons. Patients on their own . . . majority I'd have to say.
. . . lesser forms of treatment other than braces? A. For example like a retainer? Well . . . again, we have to say what do you mean And again, I don't wanna get technical on
by "retainer." that.
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Q.
the most aggressive approach to -A. Full -- well, the most aggressive approach is gonna
be the combination of braces and surgery. Q. A. Q. Okay. But -So take out surgery. Then you have braces. That's
near the top. A. Are you talking about a full complement of fixed
orthodontic appliances? Q. A. Q. A. Q. Thank you. I am. Now, ask the question again.
So . . . patients, the full complement of braces -Orthodontic appliances. Orthodontic appliances. Okay. I'm gonna write
Is that what a layperson would say are braces? Yeah. Okay. Typically talking about braces. So I'm gonna use the term "braces." All right. So lotta your kids get braces. And I think you put
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a number around 75 percent get braces? A. Q. patients. A. Q. A. Q. A. treatment. Q. A. Q. ap- -A. can do. There are many other types of partial treatment we A . . . what you call a retainer -- and again, They can be They can be Of that remaining 25 percent . . . Mm-hmm. . . . are they -- do they have retainers or other Oh. Yeah. Yes. All right. 75 that are in -- I have to call that full Oh, that are in full treatment -Of. . . . Of your private-practice patients. Adolescent
retainers can be . . . all different designs. made of plastic. bonded. They can be made of metal. So. . . .
There is a segment of what we call "partial treatment." Q. A. Q. A. Partial treatment. Right. Okay. Partial treatment.
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Q.
All right.
patients in private practice receive partial treatment; correct? A. Q. right? A. Q. Mm-hmm. Now, how does that compare with your experience at Mm-mm. About 75 percent receive braces; is that about
Bear Creek? A. Bear Creek did not have . . . I don't recall . . . Very few.
there were very few partial treatments done there. Q. A. Like less than 5 percent? I would think so.
Most
of 'em were comprehensive treatment. Q. So would it be fair to say that your observation at
Bear Creek, that almost all of their patients received comprehensive orthodontic appliances? A. Q. A. Q. A. Mm-hmm. Braces. I would say the majority did. Well, more than a majority. Well, I would say -- yes. 'Cause I don't recall
very many partial-treatment cases. Q. A. Do you recall any partial-treatment cases? Yes.
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Q. A. Q. earlier. A. Q.
But just a very -Very few. Like less than 5 percent is I think what you said
M'kay.
I still don't
know when you left Bear Creek. A. Q. A. Q. I. . . . Did you get a 1099 from Bear Creek for 2013? No. Okay. So that means you didn't do any work at Bear
Creek in 2012; right? A. I don't think I did. You know what? I think it may have ended
the -- yes.
seems like it was the end of 2011. Q. A. Q. A. Q. Okay. Back in the fall of 2011. All right. Some of these dates are -- could be off. I mean, you're an investment guy, so you would I Must have been.
think know about 1099's and those things; right? A. No, I know I didn't get one -- from that
standpoint, I know I was . . . I'm -- I think it was the end of 2011, sometime in the fall. October/November. Toward the end of the year.
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Since I am
sworn to give positive testimony here, I'm trying to be as honest as I can. But I don't remember the dates. But I
could tell you that I did not get a 1099 this year. Q. like -A. Q. I was --- you. . . . Go ahead. A. Q. I probably did not do work in 2012. Okay. So now then I wanna go to this meeting that So based upon that bit of evidence, it sounds
occurred with Orr. A. Q. A. Q. Mm-hmm. In Austin. Yes. You mentioned you had a one onset -- one-on-one That was in 2012.
session with Orr. A. Q. A. Mm-hmm. And he had the manual. Mm-hmm. MR. CANALES: answer "uh-huh." Excuse me. Can you -- don't
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A. Q. A. or not. Q. manual? A. Q. A. Q. A. Q.
Mm-hmm. Do you know if you had multiple manuals? You know, I don't know if he had more than one copy
I don't recall.
He could have.
But you don't know? No, I don't -- I can't swear to it. We should probably ask him; right? I would say ask him. Were you in a . . . this one-on-one session, it was
in a conference room with (sic) Dr. Anderton's building -A. Q. gentlemen? A. Q. you? A. Earlier we had had other people in there. Mm-hmm. Did -- at any point in time did anybody else join Mm-hmm. -- behind closed doors, it was just the two of you
Dr. Anderton had been in there. Q. A. Q. Who else? Dr. Canales. Mr. Canales? Who else? Dr. -- Mr. Canales. Okay.
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A.
Yeah.
think they were all in there at one time. Q. A. Q. A. Judge Garcia was there, too? Yeah. Who else? I can't remember. There was some . . . some other
employee of theirs. Q. A. Q. A.
What about any other dentists -No. Oh, at one time, yes. Dr. Malone was there.
Dr. Malone? Scott Malone. But I -- I can't remember if it was May have been
another time that Dr. Malone was in one of these. Q. And Dr. Malone is the -- one of the owners of M&M
Orthodontics? A. Q. A. Q. Yes. In San Antonio? Yes. So were there other people . . . in addition to
Dr. Anderton, Mr. Canales, Judge Garcia -A. remember. You know what, the first thing -- I'm trying to Dr. Malone was not there. Definitely not there. I'm sorry.
So you've had more than one meeting with Mr. Orr? I'm trying to remember if Dr. -- if mis- -- I
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have . . . been . . . at other meeting -- at another meeting -- not just exclusively with him. Where he was present. meeting. Q. confused. A. Q. A. Q. A. Yes. But he was there.
That I was in. I don't wanna start getting these meetings So -Well, I'm confused about 'em, too -Well, let's get it straight. Okay. We want a clean record here. The -- the first meeting with Dr. Orr -- Dr. . . .
Dr. Malone was not there. Q. A. Q. A. Q. Mr. Orr? A. Not -MR. CANALES: THE WITNESS: Q. A. (BY MR. HARGROVE) Dr. Orr. You mean Dr. Orr. Dr. Orr. Sorry. He was at another Okay. Yes. So we're gonna call that the first meeting. Right. Have there been other meetings you've had with And that was in the spring of 2012; correct?
Not individually.
meeting that I was in, but it was not a one-to-one session. Q. All right. So the second meeting with Dr. Orr:
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Was that before the spring 2012 meeting? A. Q. at. A. Q. A. Q. A. Q. occur? A. It had to be a month or . . . month or two later. He came into the meeting while it Yes. So we don't confuse these two meetings. Yes. I'm trying -It was after. After. Okay. And that's what I'm trying to get
Let's keep 'em separate. I'm trying to recall when these events happened. And when did that second meeting with Dr. Orr
Again, it wasn't with him. was going on. Q. meeting? A. itself. Q. A. All right.
And what was discussed? I can't remember the details of what were discussed
in that meeting. Q. A. Nothing? Oh, yeah, there were things that were discussed
about the case, but I don't . . . I can't tell you exactly what we discussed in there.
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Q. A. Q.
At either meeting were materials exchanged? In . . . what type of materials? Any type of materials. Molds, manuals, handouts,
materials, reports? A. Materials on . . . I know I got forms on . . . I can't remember any other materials that Except . . . no. For the status of where
All right.
these meetings? A.
Well, the first meeting he was there as part of the The second
meeting was going on on the team that was working on M&M cases, and he came in during the middle of the meeting. He
had been seeing patients in his private practice, and he came over to the meeting. Q. A. Q. A. occlusion. Q. And the . . . the first meeting, what instructions, Dr. Orr's not an orthodontist; correct? Correct. He's a dentist? He's a dentist. With a great deal of training in
if any, did Dr. Orr give you about interpreting the -- the manual? A. Oh -- he didn't give me instructions on
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What did he have to say about that? When he was director, he told me that he would take
each case individually and evaluate 'em according to -- he would get the records and reports from the dentists or provider that was submitted to HHSC. case. He would evaluate each
If there was some question, he would call the provider And he said every case
that came through there he personally looked at. Q. And did he make any referrals to an orthodontist
for evaluation of those cases while he was at NH -A. Q. A. Q. Not any names, no. I'm sorry? Not any names; no individuals. But . . . setting aside the names, did he make any
referrals or consult with an orthodontist about the evaluation of those cases? A. Q. A. Q. I have no idea. He didn't tell me.
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A.
providers who submitted the cases to him if he had a question. Now, they could have been orthodontists. They
could have been general dentists performing orthodontist. Orthodontics. Q. at NHIC? Which is an insurance company; right? A. NHIC. Did I say -- no. It's not NHIC. I said HHSC. Health and Excuse me.
Human Services. Q.
is it your understanding that Dr. Orr was an employee of the Health and Human Services Commission? A. Q. A. Q. A. Q. A. Q. A. He was the director, wasn't he? I'm asking you. Yes. Wasn't he the director -Is that your understanding, that --
-- he was the director? Yes. Okay. For a number of years. When he was the director,
the one who was responsible. Q. Is that how he held himself out, to be the director
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A.
It's -- you know, it's my understanding that he was He didn't come to me and say, "I'm the I may be using the wrong term.
the director.
But he was the person that was responsible for evaluating every case that came in. called the director. Q. A. deserve. Q. A. aspect. Okay. I may be giving him a title that he doesn't But it's my understanding that he was the director. All right. You have to ask him to get more details on that But he was the one, in my understanding, that was So he . . . he did. I think it's
responsible for evaluating the cases before they were approved. Q. When you were at Bear Creek, did you ever . . . did
you ever observe assistants, dental assistants, performing services on a patient that only a dentist or orthodontist was authorized to perform? A. Q. No. To what extent did the -- Bear Creek utilize dental
assistants to do orthodontia? A. They did things that are allowed under the . . .
regulations of the Texas State Board of Dental Examiners. Q. And one thing I'm still not clear about, the
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with Dr. Orr. Do you have . . . did you receive anything from Dr. Orr at any time? A. There were . . . I believe -- I'm not sure if it But it
came directly from him or from Dr. Anderton's office. was the . . . Medicaid forms for filling out, and the Medicaid Manual.
him; if he was given it by Dr. Anderton's office. that's what I got. Q. Dr. Orr -A. Q. A. Q. Second meeting wasn't with him. Okay. Mm-hmm. You know what I'm talking about.
He was there.
only items you received were portions of the Medicaid Manual; correct? A. remember. Yes. And . . . I may have gotten . . . and I can't
some patients on his results of 'em. Q. A. Q. A. That's Dr. Orr? Yes. Dr. Orr. Previously scored.
All right.
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Q. A. Q. A. things.
Did the two of you exchange e-mails? We did a couple related to transportation. Okay. That was only. That. It was transportation Like, "Will you be I think it was only
picking me up or . . ." that type thing. once or twice. Q. A. Q. Any telephone calls? I don't remember any. All right. MR. HARGROVE: All right.
I'll reserve
questions for the hearing, and I'll pass the witness. MR. CANALES: you very much. MR. MORIARTY: MR. CANALES: MR. HARGROVE: then. MR. CANALES: Okay. Let's take a minute first. You passed him. Let me just withdraw that, We'll do the same thing. Thank
(A recess was taken from 11:23 to 11:24 a.m.) Q. (BY MR. HARGROVE) Dr. Ornish, at Bear Creek did
you have a -- a provider identifier number? A. Q. Yes. Okay. And . . . my recollection is you testified
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A.
I am not sure
how Bear Creek billed. Q. When you were at Bear Creek performing services on
Medicaid beneficiaries, had you been authorized to perform services by Medicaid -A. Q. Mm-hmm. -- and bill Medicaid? MR. CANALES: THE WITNESS: Don't give me a -Yes. Yes.
I'm sorry, Tony. MR. CANALES: THE WITNESS: Q. (BY MR. HARGROVE) All right. Yes. All right. And you submitted
a . . . a request to bill Medicaid as a provider; correct? A. Yes. But not at Bear Creek. I -- I didn't . . .
number . . . so I don't . . . I guess you would have to say I did request . . . I have -- whatever you have to fill out to get the provider number, I have it. request. Q. A. number. Q. So you are I guess credentialed to provide services Is that your So I guess I did
The . . . authority to bill Medicaid. Okay. Otherwise they wouldn't have given me a provider
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understanding? A. Q. I was. Okay. And while you were at Bear Creek performing
services on these Medicaid beneficiaries, were you under the direct supervision of Dr. Brady? A. Q. A. Q. No. You did it by yourself? Yes. Okay. MR. HARGROVE: All right. I'll reserve
further questions for the hearing, and I'll pass the witness, Tony. MR. CANALES: Same thing. Thank you.
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C H A N G E S
A N D
S I G N A T U R E
WITNESS NAME: IRWIN K. ORNISH DATE OF DEPOSITION: MAY 9, 2013 PAGE LINE CHANGE REASON
________________________________________________________ ________________________________________________________ ________________________________________________________ ________________________________________________________ ________________________________________________________ ________________________________________________________ ________________________________________________________ ________________________________________________________ ________________________________________________________ ________________________________________________________ ________________________________________________________ ________________________________________________________ ________________________________________________________ ________________________________________________________ ________________________________________________________ ________________________________________________________ I, IRWIN K. ORNISH, D.D.S, M.S., have read the
21
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Before me, ________________________, on this day personally appeared IRWIN K. ORNISH, D.D.S, M.S., known to me or proved to me on the oath of ______________________ or through _____________________________ (description of identity card or other document) to be the person whose name is subscribed to the foregoing instrument and acknowledged to me that he executed the same for the purpose and consideration therein expressed. Given under my hand and seal of office this ______ day of________________________, _______.
___________________________________ NOTARY PUBLIC IN AND FOR THE STATE OF ______________________ My Commission Expires:_____________
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Petitioner,
5
vs.
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TEXAS HEALTH AND HUMAN SERVICES COMMISSION OFFICE OF INSPECTOR GENERAL, Respondent. * * * * * * *
) ) ) ) ) ) ) ) ) ) ) ) *
OF
ADMINISTRATIVE HEARINGS
11
MAY 9, 2013
14
*
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I, RABIN' MONROE, Certified Shorthand Reporter in and for the State of Texas, hereby certify to the following: That the witness, IRWIN K. ORNISH, D.D.S, M.S., was duly sworn by the officer and that the transcript of the deposition is a true record of the testimony given by the witness; That the deposition transcript was submitted on ____________________ _____, 2013, to the witness, or to the attorney for the witness, for examination, signature, and return to me by __________________ ____, 2013;
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That pursuant to information given to the deposition officer at the time said testimony was taken, the following includes all parties of record and the amount of time used by each party at the time of the deposition: MR. DAN HARGROVE Counsel for Respondent Texas HHSC, OIG TIME USED: 1 Hour, 29 Minutes MR. TONY CANALES Counsel for Petitioner Antoine Dental Center TIME USED: No Time Used
I further certify that I am neither counsel for, related to, nor employed by any of the parties in the action in which this proceeding was taken, and further, that I am not financially or otherwise interested in the outcome of this action. Further certification requirements pursuant to Rule 203 of the Texas Rules of Civil Procedure will be complied with after they have occurred. Certified to by me on this 11th day of May, 2013.
______________________________ RABIN' MONROE, RMR, CRR, CCP Texas CSR# 9049 Expiration: December 31, 2014 KEN OWEN & ASSOCIATES Firm Registration No. 115 801 West Avenue Austin, Texas 78701-2169 Phone: (512) 472-0880 Fax: (512) 472-6030
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page(s) contain(s) any changes and the reasons therefor. If returned, the original deposition was delivered
to Mr. Dan Hargrove, Custodial Attorney. $_____________ is the deposition officer's charges
The deposition was delivered in accordance with A copy of this certificate, served on all
parties shown herein, was filed with the Clerk. Certified to by me on this ________ day of
______________________________ RABIN' MONROE, RMR, CRR, CCP Texas CSR# 9049 Expiration: December 31, 2014 KEN OWEN & ASSOCIATES Firm Registration No. 115 801 West Avenue Austin, Texas 78701-2169 Phone: (512) 472-0880 Fax: (512) 472-6030
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