Pharmserv, Inc. v. Texas Health and Human Services Commission Office of the Inspector General of the Texas Health and Human Services Commission Kyle Janek, in His Official Capacity as Commissioner of Texas Health and Human Services Commission

ACCEPTED
03-13-00526-CV
3712698
THIRD COURT OF APPEALS
AUSTIN, TEXAS
1/9/2015 12:35:22 PM
JEFFREY D. KYLE
CLERK
NO.03-13-00526-CV
IN THE COURT OF APPEALS RECEIVED IN
3rd COURT OF APPEALS
THIRD COURT OF APPEALS DISTRICT AUSTIN, TEXAS
1/9/2015 12:35:22 PM
PHARMSERV, INC., Appellant JEFFREY D. KYLE
Clerk

V.

THE TEXAS HEALTH AND HUMAN SERVICES COMMISSION and
OFFICE OF INSPECTOR GENERAL OF THE TEXAS HEALTH AND
HUMAN SERVICES COMMISSION, ET AL
Appelles

On Appeal from the 261 sf Judicial District Court of Travis County, Texas
Cause No. D-I-GN 12-00107-CV

TexasTruecare's Amicus Curiae Brief

Respectfully submitted,

RIGGS ALESHIRE & RAY, P.C.

Jennifer S. Riggs
Bar No. 16922300
700 Lavaca St., Suite 920
Austin, Texas 78701
(512) 457-9806 Telephone
(512) 457-9066 Facsimile
Jriggs@r-alaw.com
 TABLE OF CONTENTS

Table of Contents .i
Index of Authorities ii
Disclosure of Interest iv
Summary of the Argument. 1
Argument and Authorities 3
1. Due Process 3
II. Statutory Authority: Payment holds and hearings to challenge them S
III. Separation of Powers 9

IV. A sanction by any other name is still a sanction 12
Prayer 14
Certificate of Compliance 14
Certificate of Service 15

Texas TrueCare Amicus Brief - Page i
 INDEX OF AUTHORITIES
Cases
Grounds v. Tolar Independent School Dist.,
856 S.W.2d 417 (Tex. 1993) 3, 4

Harlingen Family Dentistry, Pc. v. Texas Health and Human Services
Commission , --- S.
W 3d
.----, 2014 WL 6844947 ,
(Tex. App.-Austin, Nov 25,2014, no pet. hist.)
(NO. 03-14-00069-CV) 8, 12

McAllen Hospitals, L.P. v. Suehs,
426 S.W.3d 304 (Tex. App.-Amarillo, 2014, no pet.) .4

State v. Flag-Redfern Oil Co., 852 S.W.2d 480 (Tex. 1993) 10

Stratton v. Austin Independent School Dist.,
8 S.W.3d 26,29 (Tex. App.-Austin 1999, no writ) 3

Texas Dept. ofHuman Services v. Christian Care Centers, Inc.,
826 S.W.2d 715 (Tex. App.-Austin, 1992, writ denied) 8, 9

Texas Constitution
TEX. CONST. Art. I, section 13. 11
TEX. CONST. Art. II, section 1. 10

Texas Statutes
TEX. GOV'T CODE § 2260 11
TEX. GOV'T CODE ANN. § 53 l.l02(a) 6,7,12
TEX GOV'T CODE §531.1101(1) 6
TEX HUMAN RESOURCES CODE § 32.0291 5, 6, 7,12

Texas TrueCare Amicus Brief - Page ii
Administrative Rules
1 TAC. §354.1811 13
1 TAC. §354.1891. 5, 12, 13
1 TAC. §371.1667 5, 7,12

Texas TrueCare Amicus Brief - Page iii
 DISCLOSURE OF INTEREST
(COMPLIANCE WITH TRAP 11)
This amicus curiae brief is submitted on behalf of Pharmacy Buying
Association, Inc., d/b/a Texas TrueCare and PBA Health. Texas TrueCare is a
Pharmacy Services Administration Organization CPSAO") recognized by federal
govermnent as an agent authorized to negotiate and/or sign contracts on behalf of
providers in the Medicaid program. See CMS Standard Operating Procedures
§50.8.l CSome pharmacies, particularly independent pharmacies, work with agents
or Pharmacy Services Administration Organizations (PSAO) for purposes of
negotiating and/or signing contracts with Part D sponsors."). Texas TrueCare is a
membership-based organization with over 600 member independent pharmacies in
Texas. Texas TrueCare keeps its members informed of potential changes in law or
regulations that may affect their businesses and their patients. Texas TrueCare has
been closely following this case due to the tremendous impact it could have on its
member pharmacies and their patients.

Texas TrueCare is paying the fee for the preparation of this amius curiae
brief.
This brief contains a certificate of service, as required by TRAP 11 (c).

Texas TrueCare Amicus Brief - Page iv
 SUMMARY OF ARGUMENT
The Texas Health and Human Services Commission and its Office of

Inspector General (collectively HHSC-OIG) take the position that a provider of

pharmacy services under contract with the HHSC to provide services in the Texas

Medicaid program simply has no right to judicial review. The HHSC-OIG

contends (1) that the due process clauses of the Texas Constitution, Article I,

sections 13 and/or 19, do not confer such rights; (2) that section 32.029lof the

Texas Human Resources Code does not confer such rights because it does not

apply; (3) that 1 T.A.C. §371.1667 does not confer such rights because it applies

only to "sanctions" and a pharmacy audit recoupment is not a "sanction"; (4) that 1

T.A.C. §354.l89l(c) does apply but does not provide for a hearing and judicial

review; and (5) that the HHSC Medicaid contract itself does not create a right to a

hearing and judicial review.

The simple resolution of this matter is that a sanction by any other name is

still a sanction. The HHSC cannot avoid the consequences of its actions simply by

labeling its action an "audit," as opposed to a sanction. As noted in Harlingen II,

affording a provider a full adjudicative hearing on alleged fraud and abuse while

providing no hearing and no judicial review on simple program violations makes

no sense.

Texas TrueCare Amicus Brief - Page 1
 The HHSC-OIG, however, contends that program violations subject to audit

that do not involve fraud and abuse are fundamentally different. That may well be

true - the essence of an adverse audit finding is that the provider has breached its

agreement with the HHSC. What the HHSC-OIG glosses over, however, is the

complete absence of statutory authority to exercise self-help by withholding future

payments to remedy alleged past breaches of the Medicaid contract. It is the

statutes that afford a provider a hearing and judicial review that confer the

authority to withhold funds from providers. If the hearing and judicial review

provisions of such legislation do not apply then neither does the authority to

withhold pending hearing and judicial review.

At issue here is not just the jurisdiction of the courts, but the jurisdiction of

the HHSC. The HHSC has no authority to adjudicate contract rights. When the

HHSC withholds money under its contracts with pharmacy providers to enforce

audit findings, it is effectively adjudicating contract rights. The fact that the

doctrine of sovereign immunity may prevent a pharmacy provider from suing the

HHSC for breach of contract does not mean that the HHSC may effectively sue the

pharmacy provider for breach of contract without doing so in court. There are two

sides to that coin. Absent a legislative scheme that transfers the contract remedy to

an agency, a pharmacy provider has the right to defend alleged breach of contract

claims in court.

Texas TrueCare Amicus Brief - Page 2
 As a result, the HHSC-OIG lacks authority to withhold the funds at issue

until and unless it files a breach of contract claim in district court. The district

court has the jurisdiction to consider its failure to do so.

ARGUMENT AND AUTHORITIES

I. Due Process

The HHSC-OIG appears to acknowledge that a statute, agency rule or

contract can confer rights that are protected by due process, depending on its

terms. (Appellees' Brief, pp. 16-19, can depend on parties "understanding") It is

not necessary, however, that such a statute or contract expressly provide the right

to a due process hearing. For example, in Grounds v. Tolar Independent School

Dist., 856 S.W.2d 417 (Tex. 1993), the Court addressed the Term Contract

Nomenewal Act (TCNA), which required that a school district have reasons not to

renew a contract, and held "that this limit on the school district's discretion is

sufficient to create a property interest entitled to due process protection." Grounds,

856 S.W.2d at 420. Although subsequent amendments to the TCNA expressly

disclaimed any such due process interest, see Stratton v. Austin Independent School

Dist., 8 S.W.3d 26, 29 (Tex. App.-Austin 1999, no writ), the initial constitutional

basis in Grounds for finding a due process interest remains.

Texas TrueCare Amicus Brief - Page 3
 Grounds was based on a long line of decisions from the United States

Supreme Court and other federal courts. For example,

The United States Supreme Court defined a constitutionally protected
property interest in Logan v. Zimmerman Brush Co. as "an individual
entitlement grounded in state law, which cannot be removed except 'for
cause'." 455 U.S. 422, 430, 102 S.Ct. 1148, 71 L.Ed.2d 265 (1982) (quoting
Memphis Light, Gas & Water Div. v. Craft, 436 U.S. 1, 11-12,98 S.Ct.
1554, 1561-62,56 L.Ed.2d 30 (1978» (other citations omitted). The "for
cause" requirement discussed in Logan constitutes a substantive limit on the
State's discretion creating a property interest. Likewise, the TCNA
requirement of pre-established reasons for nomenewal constitutes a
substantive limit on the State's discretion creating a property interest.

Grounds, 856 S. W.2d at 418.

The decision in McAllen Hospitals, L.P. v. Suehs, 426 S.W.3d 304 (Tex.

App.-Amarillo, 2014, no pet.), with respect to due process is not to the contrary.

The property interest necessary to sustain a "takings" claim for inverse

condemnation of property is not the same property interest that triggers procedural

due process protection. In McAllen Hospitals, the Amarillo Court of Appeals noted

that the hospitals had not availed themselves of all available remedies, hence they

had no viable due process claim. McAllen Hospitals, 426 S.W.3d at 313. The same

considerations do not apply here, where all administrative remedies made available

by the HHSC-OIG were exhausted.

Certainly the HHSC-OIG cannot contend that it may withhold contract

payments for any reason, no matter how arbitrary, or no reason at all. The HHSC-

OIG has only the powers granted to it expressly or by necessary implication. As a

Texas TrueCare Amicus Brief - Page 4
result, it ca=ot withhold contract payments on a basis for which it lacks authority.

The HHSC-OIG rules themselves require that there be some basis for the audit

findings. See, e.g., 1 TAC. §354.l891.

Likewise, the Medicaid contract itself requires compliance with Medicaid

program requirements. It would strain credulity to argue that the contract does not

create a legitimate expectation of payment if program requirements are met.

For these reasons, the HHSC ca=ot withhold contract payments absent

some legitimate reason. Those regulatory and contractual limits themselves create

a property interest entitled to due process protection.

II. Statutory Authority: Payment holds and hearings to challenge them

The HHSC-OIG contends that section 32.029lof the Texas Human

Resources Code and 1 T.AC. §371.l667 do not confer on pharmacy providers the

right to a hearing and judicial review because those provisions do not apply to

pharmacy providers subject to performance audit reviews, which do not involve

fraud and abuse.

Section 32.0291 provides as follows:

(a) Notwithstanding any other law, the department may:
(1) perform a prepayment review of a claim for reimbursement under
the medical assistance program to determine whether the claim
involves fraud or abuse; and

Texas TrueCare Amicus Brief - Page 5
 (2) as necessary to perform that review, withhold payment ofthe claim
for not more than five working days without notice to the person
submitting the claim.
(b) Subject to Section 531.1 02, Govermnent Code, and notwithstanding any
other law, the department may impose a payment hold on future claims
submitted by a provider.
(c) A payment hold authorized by this section is governed by the
requirements and procedures specified for a payment hold under Section
531.102, Govermnent Code, including the notice requirements under
Subsection (g) ofthat section.
TEX HUMAN RESOURCES CODE §32.0291 (emphasis added).

As a preliminary matter, section 32.0291 expressly references section

531.102 of the Texas Govermnent Code. Chapter 531 of the Texas Govermnent

Code governs "Medicaid and Other Health and Human Services Fraud, Abuse, or

Overcharges." In the 2013, the HHSC sought and obtained from the Texas

Legislature a very broad definition of "abuse":

(1) "Abuse" means:
(A) a practice by a provider that is inconsistent with sound fiscal, business,
or medical practices and that results in:
(i) an unnecessary cost to the Medicaid program; or
(ii) the reimbursement of services that are not medically necessary or
that fail to meet professionally recognized standards for health care; or
(B) a practice by a recipient that results in an unnecessary cost to the
Medicaid program.
TEX GOV'T CODE §531.110l(1) (Vernon Supp. 2013).

Abuse, as defined in this section is not limited to fraud and is broad enough

to encompass simple program violations. For policy reasons, perhaps it should not.

Texas TrueCare Amicus Brief - Page 6
But the language supports applying all of the provisions of Chapter 531, if any of

them apply. As a result, if the payment hold provisions of section 531.102, to

which this definition applies, apply to authorize a temporary payment hold, then

so, too, do the hearing provisions of section 531.102. The fact that the

"unnecessary cost" is actually determined through a process called an "audit" as

opposed to an investigation makes no substantive difference.

The definition of a "provider" that is subject to section 531.102 (and,

therefore, to section 32.0291), is likewise broad:

(10) "Provider" means a person, firm, partnership, corporation, agency,
association, institution, or other entity that was or is approved by the
commission to:
(A) provide medical assistance under contract or provider agreement with
the commission; or
(B) provide third-party billing vendor services under a contract or provider
agreement with the commission.
TEX GOV'T CODE §531.110l(1O) (Vernon Supp. 2013).

Pharmacy providers clearly fall within this broad definition. The HHSC

cannot identify any laws, because there are none, that authorizes the HHSC to label

a pharmacy provider as an "audited entity" simply to evade the notice and hearing

requirements of Chapter 531.

As a result, sections 32.0291 and rule 371.1667 do apply to pharmacy

providers. On the other hand, if section 32.0291 and rule 371.1667 do not apply,

then the HHSC-OIG likewise lacks authority to impose a temporary payment hold,

Texas TrueCare Amicus Brief - Page 7
much less a permanent payment hold. The HHSC-OIG glosses over the complete

absence of any other statutory authority to exercise self-help by withholding future

payments to remedy alleged past breaches ofthe Medicaid contract.

As noted by this Court in Harlingen Family Dentistry, Pc. v. Texas Health

and Human Services Commission, --- S.W.3d ----, 2014 WL 6844947 (Tex. App.-

Austin, Nov 25, 2014, no pet. hist.) (NO. 03-l4-00069-CV):

Through the challenged rules, HHSC grants the OIG authority, and assumes
authority for itself, to impose a payment hold whenever it believes a
provider has committed any program violation, no matter how minor and
irrespective of whether there is any indication of fraud or other intentional
abuse. As noted above, the rules significantly expand the circumstances
under which a pre-notice payment hold can be imposed beyond those
enumerated in Govermnent Code section 53 1.021(g)(2). Thus, the
challenged rules are inconsistent with the legislature's directives related to
those payment holds that it has expressly authorized,
Harlingen Family Dentistry, 2014 WL 6844947, *5. This Court also noted the

anomalous result of affording a hearing to a provider accused of fraud, but not to

one accused "only" of program violations. Id.

This Court's decision in Texas Dept. of Human Services v. Christian Care

Centers, Inc., 826 S.W.2d 715 (Tex. App.-Austin, 1992, writ denied) is also

instructive here. In Christian Care, this Court held that the predecessor to the

HHSC exceeded its statutory authority in promulgating a rule providing for the

permanent withholding of payments for services actually rendered to qualified

Texas TrueCare Amicus Brief - Page 8
Medicaid patients, based on nursing homes' failure to timely submit "level of care"

forms:

TDHS is required to pay for qualified services made to eligible patients or
give notice before finding patients ineligible, so that disqualified patients
may exercise their due-process right to appeal eligibility decisions. See
Tex.Hum.Res.Code A=. § 32.035 (1990); 42 U.S.C. § 1396a(a)(3) and (10)
(1988 & Supp.I.1989); 42 C.F.R. § 431.200-.250 (1991); see also Goldberg,
397 U.S. 254, 90 S.Ct. 1011. By providing that a "Level of Care ceases to
exist," rather than declaring a patient medically ineligible, TDHS seeks to
avoid these due-process notice and appeal requirements. We find that use of
this grammatical fiction circumvents the primary intent of the Medicaid
statute; to provide continuous payment for necessary services to eligible
individuals. Implied authority is not authority to depart from the intent of the
statute. Sexton, 720 S.W.2d at 137; see also Texas Ed. ofDental Examiners
v. Prichard, 446 S. W.2d 905, 909 (Tex.Civ.App.1969, writ rei'd n.r.e.).
One of the key determinants of whether a rule is within an agency's implied
authority is whether the rule harmonizes with the purpose of the agency's
governing statute, in all of its provisions. See Gerst v. Oak CliffSav. & Loan
Ass'n, 432 S.W.2d 702, 706 (Tex. 1968); see also State Ed. of Ins. v.
DefJebach, 631 S.W.2d 794, 798 (Tex.App.1982, writ rei'd n.r.e.); Jefco,
Inc. v. Lewis, 520 S.W.2d 915,921 (Tex.Civ.App.1975, writ rei'd n.r.e.). It
would be inconsistent with the overall purposes of the Medical Assistance
statute, i.e. providing quality nursing services to Medicaid qualified patients,
to give TDHS the authority to withholdfunds permanently, merely for failure
to file updated records timely.
Christian Care Centers, Inc., 826 S.W.2d at 721 (emphasis added).

III. Separation of Powers

In determining the scope of the HHSC-OIG authority, this Court looks to

powers granted expressly or by necessary implication in statutes. In evaluating the

HHSC-OIG's contentions regarding the scope of its authority, the Court must also

consider any constitutional limits on such grants of authority and interpret the

Texas TrueCare Amicus Brief - Page 9
authority in ma=er that renders it constitutional. Article II, section 1, of the Texas

Constitution, the Separation of Powers provision, imposes limits on the authority

that may be exercised by agencies in the Executive Department of Govermnent.

TEX. CONST. Art. II, §1.

The essence of an HHSC-OIG adverse audit finding is that the provider has

breached its agreement with the HHSC. The HHSC, however, has no authority to

adjudicate contract rights. See State v. Flag-Redfern Oil Co., 852 S.W.2d 480

(Tex. 1993). In Flag-Redfern, a group of mineral lessees challenged the authority

of the General Land Office (GLO) to adjudicate contract rights. At issue was a

statutory scheme under which the GLO audited the leases retrospectively and

withheld payments due prospectively to remedy what the GLO deemed to be

violations of the lease. The Court held that although the GLO does not have

authority to adjudicate the contract rights of parties to state mineral leases, the

GLO may conduct audits to reassess the GLO's position under such contracts.

Flag-Redfern Oil Co., 852 S.W.2d at 484.

The Flag-Redfern Court stated:

To the extent that section 52.135 merely allows the State to reassess its
position with regard to state mineral leases, rather than to subject
participants to binding judgments, we hold that the statute does not offend
article II, section 1 of the Texas Constitution. See Fristoe v. Blum, 92 Tex.
76,85,45 S.W. 998, 1002 (1898).

Texas TrueCare Amicus Brief - Page 10
Flag-Redfern Oil Co., 852 S.W.2d at 484. The implications of the case are clear-

if the statute had allowed the GLO to render what amOlmted to a binding judgment,

such action would have violated article II, section 1.

When the HHSC-OIG withholds money llllder its contracts with pharmacy

providers to enforce audit findings, it is effectively adjudicating contract rights.

Because the HHSC-OIG withholds money it alleges the pharmacy providers owe

llllder their provider agreements, with no opportllllity for judicial review, much less

a hearing, the effect of the action is that of a binding judgment. As a result, its

action violates article II, section 1, ofthe Texas Constitution.

The Flag-Redfern Court further held that the requirement that state mineral

lessees pay any disputed royalties before seeking judicial review of the GLO audit

violated the lessees' constitutional right to access to courts under article I, section

13, of the Texas Constitution. PharmServ raised the applicability of article I,

section 13, in this case.

The fact that the doctrine of sovereign immllllity may prevent a pharmacy

provider from suing the HHSC for breach of contract does not mean that the

HHSC may effectively sue the pharmacy provider for breach of contract without

doing so in court. There are two sides to the breach of contract coin. Absent a

legislative scheme that transfers the contract remedy to an agency, such as Chapter

2260 of the Texas Government Code, a pharmacy provider has the right to defend

Texas TrueCare Amicus Brief - Page 11
alleged breach of contract claims in court. The trial court had the jurisdiction to

consider such claims.

IV. A sanction by any other name is still a sanction

The HHSC cannot avoid the consequences of its actions simply by labeling

its action an "audit," as opposed to a "sanction." The HHSC-OIG's position is that

1 T.A.C. §371.1667 does not confer the right to a hearing because it applies only to

"sanctions" and a pharmacy audit recoupment is not a "sanction." The HHSC-OIG

further urges that 1 TAC. §354.l89l(c) applies instead and that §354.l89l(c)

does not expressly provide for a hearing and judicial review. The trial court had

jurisdiction to consider whether §354.l89l means what the HHSC-OIG says it

means and, if it does, whether it is invalid as inconsistent with the overall statutory

scheme for the Medicaid program and/or the due process clauses of the Texas

Constitution.

In evaluating the HHSC-OIG's position regarding §354.l89l, the Court

must consider the rule in context. Section 354.1891 must be considered in the

context of the overall Medicaid program. See Harlingen II, 2014 WL 6844947, *5;

Christian Care, 826 S.W.2d at 721. In addition, that means reconciling the rule

with sections 32.0291 of the Human Resources Code and its incorporation of

section 531.102 of the Texas Govermnent Code and the definitions, discussed

Texas TrueCare Amicus Brief - Page 12
above, that apply to that section. Finally, interpreting the rule in context requires

consideration ofthe rest of Chapter 345 of the HHSC rules.

The HHSC-OIG fails to reconcile its position regarding §354.l89l with 1

T.A.C. §354.l8ll. Section 354.1811, which is entitled simply "Sanctions,"

provides as follows:

(a) The Health and Human Services Commission (HHSC) reserves the right
to impose administrative sanctions on a pharmacy provider who conducts
pharmaceutical practices in violation of the ethics adopted by the profession,
any applicable federal or state laws, or the criteria ofHHSC's Vendor Drug
Program. Sanctions include, but are not limited to, termination or
suspension from participation, suspension of payments, and recoupment of
overpayments.
(b) On receipt of a written request, HHSC provides an appeal to a pharmacy
provider on whom HHSC sanctions have been placed for a violation
described in subsection (a) of this section.
1 TAC. §354.l8ll (emphasis added).

The HHSC's own rules describe recoupment of an overpayment for

violations of the criteria of the Vendor Drug Program or any applicable federal or

state law as "sanctions." As a result, the HHSC-OIG's argument that rule 371.1667

does not apply lack merit. Pharmacy providers are entitled to a hearing and judicial

revIew.

Texas TrueCare Amicus Brief - Page 13
 PRAYER

FOR THESE REASONS, Texas TrueCare, as Amicus Curiae urges this

Court to reverse the order dismissing this case for lack of jurisdiction and to

remand the case for further proceedings consistent with the Court's opinion.

Respectfully submitted,

/s/ Jennifer S. Riggs
Jennifer S. Riggs
RlGGS ALESHIRE & RAY, P.C.
Bar No. 16922300
700 Lavaca St., Suite 920
Austin, Texas 78701
(512) 457-9806 Telephone
(512) 457-9066 Facsimile
Jriggs@r-alaw.com

CERTIFICATE OF COMPLIANCE UNDER RULE 9.4(i)(3)
OF THE TX. RULES OF APPELLATE PROCEDURE

By my signature below I certify that a computer assisted word count of the
portions of this brief per Rule 9.4(i) (3) Tx. Rules of Appellate Procedure indicates
that the number of countable words is 3,185, from the beginning of the Summary
at page number 1 through the Prayer.

/s/ Jennifer S. Riggs
Jennifer S. Riggs

Texas TrueCare Amicus Brief - Page 14
 CERTIFICATE OF SERVICE

By my signature below I certify that a true and correct copy of the above and
foregoing document was served on the following by hand delivery and/or
electronic filing on January 9, 2015.

Jeff Avant
AVANT & MITCHELL, L.P.
700 Lavaca, Suite 1400
Austin, Texas 78701
avantlaw@swbell.net

Hugh M. Barton, P.C.
603 West 13 th St., Suite lB
Austin, TX 78701
bartonlaw@yahoo.com

Ann Hartley, Assistant Attorney General
Financial, Tax and Litigation Section
Office of the Attorney General
300 West 15 th, 6th Floor
Austin, TX 78711
Ann.hartley@texasattorneygeneral.gov

/s/ Jennifer S. Riggs
Jennifer S. Riggs

Texas TrueCare Amicus Brief - Page 15