                                                                                         ACCEPTED
                                                                                     03-15-00657-CV
                                                                                             7745200
                                                                          THIRD COURT OF APPEALS
                                                                                     AUSTIN, TEXAS
                                                                                11/9/2015 2:07:47 PM
                                                                                   JEFFREY D. KYLE
                                                                                              CLERK
                             NO. 03-15-00657-CV

                                                                    FILED IN
                                                             3rd COURT OF APPEALS
                                IN THE                           AUSTIN, TEXAS
                        THIRD COURT OF APPEALS               11/9/2015 2:07:47 PM
                             AUSTIN, TEXAS                     JEFFREY D. KYLE
                                                                     Clerk


CHRIS TRAYLOR, EXECUTIVE COIMMISSIONER OF TEXAS HEALTH
 AND HUMAN SERVICES COMMISSION AND THE TEXAS HEALTH
           AND HUMAN SERVICES COMMISSION,
                      APPELLANTS

                                        V.

                                  DIANA D., et al
                                   APPELLEES


       ON APPEAL FROM THE 200TH JUDICIAL DISTRICT COURT,
        TRAVIS COUNTY, TEXAS, HON. TIM SULAK, PRESIDING


     APPELLEES’ RESPONSE TO APPELLANTS’ MOTION TO VACATE
      COUNTER-SUPERSEDEAS ORDER, OR IN THE ALTERNATIVE,
               INCREASE COUNTER-SUPERSEDEAS BOND
     ______________________________________________________________

TO THE HONORABLE THIRD COURT OF APPEALS:

                             I.    INTRODUCTION

1)     Appellants have filed a Motion To Vacate Counter-Supersedeas Order, Or In

The Alternative Increase Counter-Supersedeas Bond (“Appellants’ Motion” or “the

Motion”) in which Appellants claim that the trial judge abused his discretion

because: a) the U.S. Secretary of Health and Human Services has exclusive
authority to enforce the federal Medicaid statutory provisions relating to access to

care; and b) the temporary injunction violates various clauses of the U.S. and

Texas Constitution. Alternatively, Appellants’ Motion claims that this Court

should set the bond for denial of supersedeas at $100,000,000.00 because that is

the alleged two-year budget impact of the temporary injunction.

2)    The Court should deny Appellants’ Motion because:

      a.    Appellants’ attack on the trial court actions has nothing to do with

            their factual or legal basis.

      b.    There is no federal constitutional or statutory ground to challenge the

            trial court’s actions.

      c.    The trial court’s actions do not violate the Texas Constitution.

      d.    None of Appellants’ objections were ever presented to the trial court.

      e.    Appellants expressly consented to and waived any objection to the

            bond for the denial of supersedeas.

      f.    Appellants’ claims as to the budgetary impact of the temporary

            injunction lack any evidentiary, or logical, basis.




                                            2
Because there is no factual or legal basis for the Appellants’ Motion, no error has

been presented for review, and all claims in the Motion have been waived, the

Court should deny the Motion.1

                             II.    STATEMENT OF FACTS

3)     Because this is the Court’s first opportunity to review any aspect of this

case, Appellees offer this abbreviated statement of facts to provide context for

Appellants’ Motion and this response.

4)     Appellees include the next friends of five children who suffer from severe

and disabling conditions, including seizure disorders, delayed development,

autism, speech developmental delays, epilepsy, cerebral palsy, and other

conditions. CR 5, 587–88. These children and thousands of other like them receive

speech, occupational, and physical therapy services from home health agencies

under the Texas Medicaid Program to assist with their disabling symptoms such as


1
   As Appellees were finalizing this response, Appellants filed a letter asking the Court to
consider the trial court’s comments at a recent hearing when making its determination of
Appellants’ Motion. Letter from Kristofer S. Monson, Assistant Solicitor General, to Jeffrey D.
Kyle, Third Court of Appeals (Nov. 9, 2015) (on file with Court). This request is improper for at
least three reasons. First, Appellants are asking the Court to consider statements made after their
Motion was filed, which are not part of the Court’s record. Second, Appellants have not attached
the hearing transcript to their letter, apparently hoping the Court will adopt Appellants’
misleading and incorrect characterization of Judge Sulak’s words, which in any event did not
modify the order Appellants are challenging. Third, by filing this letter the same day Appellees’
response to the Motion is due, Appellants are attempting to amend their argument and avoid a
response from Appellees. The Court should disregard Appellants’ letter and decide the Motion
based on the record and briefing schedule the Court has already defined. If the Court is inclined
to consider Appellants’ letter, Appellees ask that the Court instruct Appellants to include in their
filing all portions of any supplemental record on which they will rely, and set a reasonable
briefing schedule for any response the Court would like from Appellees.
                                                 3
the inability to speak, walk, control bodily movement, or mentally process

information. CR 5, 588. Appellees also include three providers of these home

health therapy services. CR 5, 588. Appellees filed this suit on August 11, 2015, to

enjoin The Texas Health and Human Services Commission (“HHSC”) from

implementing dramatic cuts to Medicaid reimbursement rates for home health

therapy services, which HHSC planned to implement on September 1. CR 4–64.

5)    Appellees’ suit is based, among other things, on the fact that in promulgating

its proposed rates, HHSC did not comply with its own rules, including 1 TAC

§355.8021(a)(2)(B), which requires that periodic rate reviews include a study of

payments for, as well as costs associated with, providing Medicaid reimbursable

therapy services. CR 343, 507–08. Because HHSC failed to comply with its own

rules, the proposed rates constitute an effective adoption of a new administrative

rule under El Paso Hosp. Dist. v. Tex. Health & Human Servs. Comm’n, 247

S.W.3d 709 (Tex. 2008). CR 507–08; see also CR 203–05, 343–46. Appellees

sought to enjoin HHSC from implementing the proposed rates because they had

not followed the steps required by the Administrative Procedures Act (“APA”) to

adopt a new rule. Id. (citing TEX. GOV’T CODE ch. 2001 et seq.). Alternatively,

Plaintiffs assert that Commissioner Traylor’s acts were ultra vires, and should

likewise be enjoined. Id. (citing TEX. CIV. PRAC. & REM. CODE §37.009; City of El

Paso v. Heinrich, 284, S.W.3d 366, 372 (Tex. 2009)).


                                         4
6)     The trial court ordered accelerated discovery, which included a deposition of

Pam McDonald as the representative of HHSC. CR 98–101. During that

deposition, Appellants handed Appellees a second set of proposed rates that HHSC

had created over the previous weekend in response to the litigation and discovery.

2 RR 10; 3 RR 201–02. At 9:17 a.m. on the date of the initial temporary injunction

hearing, Appellants filed “HHSC’s Advisory to the Court” announcing that HHSC

would “start over, with a new rate proposal, pursuant to Rider 502 and HHSC’s rate

methodology as prescribed by its administrative rules.” CR 270–71. Because

HHSC abandoned the proposed September 1, 2015 implementation of new rates,

the injunction hearing was moot and did not proceed.

7)     Nine days after abandoning the first two sets of proposed rates and

promising to start over, HHSC published a third set of proposed rates to take effect

on October 1, 2015. CR 342, 51–73. This led Appellees to amend their petition,

CR 336–92, obtain additional discovery, CR 491–94, and set another temporary

injunction hearing for the week of September 21. At the hearing, HHSC’s witness

admitted that HHSC had not complied with the §355.8021(a)(2)(B) requirement of

a study to determine the costs associated with providing the Medicaid-

reimbursable services. 3 RR 229–30. The trial court found, among other things,
2
 “Rider 50” refers to a rider to the H.B. 1 General Appropriations budget of the 84 th Legislative
Session, which was introduced as Exhibit 9 at the temporary injunction hearing. 6 RR at Ex. 9 p.
2–4. Subsection (c) of Rider 50, which provides that HHSC “should” and “may” (not “shall”)
achieve General Revenue Funds savings, is the basis for Appellants’ claim that the Legislature
mandated $100,000,000.00 in rate cuts over the next two years.
                                                5
that the proposed rates did not comply with the requirement of a cost study under

§355.8021(a)(2)(B). CR 590–92. Because the proposed rates failed to comply with

HHSC’s own rules, the trial court found that the proposed rates constituted a rule

change that failed to comply with Government Code Chapter 2001 et. seq. under El

Paso Hosp. Dist., 247 S.W.3d at 715. CR 592.

8)    Contrary to the characterizations of Appellants’ Motion, Rider 50 of the

H.B. 1 General Appropriations Bill does not mandate $100,000,000 in cuts to

Medicaid over the next two years because the relevant provisions only state that

HHSC “should” and “may” (not “shall”) achieve General Revenue Funds savings.

6 RR at Ex. 9, p.3–4. The trial court evidence included letters from legislators to

Commissioner Traylor pointing out that this language of Rider 50 did not compel

the proposed rate reductions. 6 RR at Ex. 32, App. Tab 1.

9)    Appellants’ Motion claims that the legal basis of the temporary injunction is

a federal statutory provision of access to care. Although the trial court found that

the proposed rates would result in denial of care for Medicaid recipients, CR 597,

this finding was not the legal violation that formed the basis of the trial court’s

injunction, which was the failure to comply with HHSC’s own rules and the failure

to fulfill the obligations to implement new rules as required by El Paso Hosp.

Dist., 247 S.W.3d at 715 and Texas Government Code Chapter 2001 et. seq. CR

592. Furthermore, the trial court did not enjoin HHSC from implementing all rate


                                         6
reductions because the injunction only prohibits the implementation of rates

“without conducting a review of payments for providing Medicaid-reimbursable

therapy services and conducting a review of costs associated with providing

Medicaid-reimbursable therapy services as required by 1 TAC §355.8021(a)(2)(B).

CR 595–96.

10)   At the conclusion of the temporary injunction hearing, Appellees asked the

trial court to deny supersedeas under TRAP 24.2, conditioned on Appellees’

posting a $500 bond. 5 RR 5–7. Appellants opposed the denial of supersedeas, but

agreed that if the trial court denied supersedeas, a $500 bond is reasonable. 5 RR 9.

The trial court denied supersedeas under TRAP 24.2(a)(3), and ordered that $500

of the funds Appellees had already deposited in the clerk’s registry would serve as

security for the denial of supersedeas. CR 596–97.

11)   Nineteen days after the trial court’s temporary injunction hearing,

Appellants filed a motion to modify the temporary injunction and attached an

affidavit of Pam McDonald dated October 14, 2015. CR 674–89. This affidavit

was not before the trial court during the temporary injunction hearing or the

supersedeas hearing, which occurred on September 21–23, 2015. 3 RR 1 – 5 RR 9.

Despite the fact that this affidavit was never presented to the trial court during the

relevant proceedings, Appellants attached it to their Motion under Tab D and refer




                                          7
to it as evidence in support of their claim that the trial judge abused his discretion.

Appellants’ Motion at 22–23.

12)   In their appeal, Appellants waived the stay of trial court proceedings. CR

735. The case remains set for trial on January 18, 2016. In their Motion, Appellants

admit that the standard of review is abuse of discretion. Appellants’ Motion, p. 3.

                                III.   ARGUMENT

      A. Appellants’ Motion should be reserved for full panel consideration.

13)   Appellants’ Motion, if granted, would grant case-dispositive relief as

measured by the impact on the lives and livelihood of Appellees and many Texans.

Based on the evidence presented, the trial court found that if the proposed rates are

implemented, Medicaid beneficiaries would be denied essential Medicaid-funded

services and service providers would be forced out of business. CR 595. The trial

court found that allowing the State to supersede the temporary injunction would

render any relief granted ineffective. CR 596. The Texas Supreme Court has

recognized in a similar case that the “State's position—boundless entitlement to

supersede adverse non-money judgments—would vest unchecked power in the

executive branch, at considerable expense to the judicial branch, not to mention the

wider public we both serve.” In re State Board for Educator Certification, 452

S.W.3d 802, 808 (Tex. 2014). In that case, the Supreme Court recognized that

allowing the State to supersede the trial court’s order without security would cause


                                          8
unrecoverable loss to the prevailing party. “The State—as yet unsupported by a

victory on the merits in any court—wants to strip Montalvo of his livelihood while

the appellate process grinds on, and if he manages to regain his professional

license after having been kicked out of his profession for years—well, bygones.

That's a striking assertion of unbridled executive power—to enforce administrative

orders that a trial court has reversed—and TRAP 24.2(a)(3) recognizes the

judiciary's authority to say no.” Id. at 809. Just as the State requested in In re State

Board, HHSC asks this Court to allow them to supersede the temporary injunction,

which would cause devastating setbacks to children in need of services and force

many service providers out of work. Repairing the damage caused by such

deprivation after the fact is impossible, and the citizens of Texas deserve the

Court’s protection from such “unbridled executive power.” Because the outcome

of Appellants’ Motion would in effect permanently deprive Appellants, and many

other Texans, of any relief in this case, the Court should reserve Appellants’

Motion for consideration by the full panel.

      B.   Appellants’ Motion is actually an attack on the temporary
           injunction, not the denial of supersedeas.

14)    Pages 5–21 of Appellants’ Motion consist of arguments that the Appellees’

substantive claims are barred by federal law, the U.S. Constitution, and the Texas

Constitution. This is a substantive attack on the temporary injunction mislabeled as

a challenge to the denial of supersedeas because all of the arguments are directed at
                                           9
the underlying claims and causes of action, not at the trial court’s discretion to

deny supersedeas under TRAP 24.2(a)(3) and In re Board of Educator

Certification. The temporary injunction is already the subject of a pending

interlocutory appeal with a schedule for briefing on the merits. The Court should

disregard Appellants’ arguments regarding the substantive claims because such

arguments are not properly before the Court in the form of briefing on the merits of

the interlocutory appeal. The Court should limit the consideration of Appellants’

Motion to only those issues actually directed at the trial court’s discretion to deny

supersedeas. However, nowhere in Sections I, II, III or IV of the Motion is there

any explanation as to how the denial of supersedeas, as distinct from the temporary

injunction itself, constitutes a violation of any of the cited constitutional

provisions. Accordingly, the Court should limit its consideration of the Motion to

Section V, which is the only part of the Motion that actually addresses the trial

judge’s decision on the denial of supersedeas.

      C. The grounds for relief asserted in Appellants’ Motion have nothing
         to do with the basis of the temporary injunction and denial of
         supersedeas.

15)    Appellants’ Motion is premised on the argument that only the U.S.

Secretary of Health and Human Services has authority to enforce the access to care

provisions under the federal Medicaid statute. Armstrong v. Exceptional Child Ctr.,

Inc., 135 S. Ct. 1378 (2015). As discussed below, Appellants’ reading of


                                         10
Armstrong is overly broad. Infra at §III.E. Although that case does stand for the

proposition that only the Secretary may enforce §30(A) of the Medicaid Act, that

proposition is completely irrelevant to this lawsuit because: a) this lawsuit is based

exclusively on Texas law, not federal law; and b) access to care is not the basis for

the trial court’s temporary injunction. HHSC’s own regulatory rules provide that

“HHSC may conduct periodic rate reviews that include, but not be limited to,

payments for as well as costs associated with providing these Medicaid-

reimbursable therapy, nursing, and aide services.” 1 TAC §355.8021(a)(2)(B)

(emphasis added). HHSC admits that it did not comply with the requirement of a

cost study under this rule when it promulgated the proposed rates. 3 RR 229–30.

When HHSC fails to follow its own regulatory rules in making rate decisions, such

rates constitute a new rule which must comply with the APA under Texas

Government Code Chapter 2001. El Paso Hosp. Dist. v. Tex. Health & Human

Servs. Comm’n, 247 S.W.3d 709 (Tex. 2008). Because HHSC did not comply with

§355.8021(a)(2)(B) and did not undertake the necessary steps for the adoption of

new rules under the APA, the trial court enjoined implementation of the proposed

rates because they were promulgated in violation of Texas law. CR 592–97.

Nowhere in the pleadings, briefing, or temporary injunction, is there any reference

to the federal statutory Medicaid right to access to care. Appellants’ Motion

therefore wholly ignores and completely mischaracterizes the legal basis of the


                                         11
lawsuit and the temporary injunction in an effort to argue that the claims and the

temporary injunction are preempted by federal law. Because the lawsuit and the

temporary injunction are based exclusively on the violation of Texas law by

HHSC, the Court should disregard Appellants’ arguments regarding federal

preemption.

      D. Fundamental Error under McCauley is irrelevant to Appellants’
         Motion.

16)   Appellants’ Motion cites to McCauley v. Consolidated Underwriters, 304

S.W.2d 265 (Tex. 1957) for the proposition that the temporary injunction and the

denial of supersedeas are reviewable under the doctrine of fundamental error. The

purpose of this argument is not clear because the temporary injunction and the

denial of supersedeas are already subject to ordinary review under applicable

statutes and rules of appellate procedure. However, the citation to McCauley is

irrelevant. Fundamental error is a discredited doctrine used in rare circumstances.

McCauley holds that when an appellate court lacks jurisdiction, the Texas Supreme

Court can address the lack of jurisdiction even if the parties fail to present

jurisdiction as assigned error. Id. at 265–67. This is merely an early recitation of

what is now a common doctrine of jurisdiction. “[J]urisdiction cannot be waived or

conferred by agreement, must be considered by a court sua sponte, and can be

raised for the first time on appeal. Reata Constr. Corp. v. City of Dall., 197 S.W.3d

371, 379 (Tex. 2006). Clearly in considering the interlocutory appeal of the
                                         12
temporary injunction, the Court may, either by issue presented or sua sponte,

consider whether there is jurisdiction either in the trial court or the Court of

Appeals. To the extent that any doctrine of fundamental error continues, it has no

bearing on Appellants’ Motion. [D]ue to the policy concerns favoring preservation

of error during trial or during appeal, the fundamental error doctrine is a

discredited doctrine that is used in rare circumstances only.” Goodson v.

Castellanos, 214 S.W.3d 741, 750 (Tex. App.—Austin 2007, pet. denied).

Appellants’ Motion does not present any rare circumstance and the fundamental

error doctrine is irrelevant.

      E.    There is no federal basis to challenge the trial court’s actions.

17)   The exclusive right of the U.S. Secretary of Health and Human Services (the

“Secretary”) to enforce §30(A) of the Medicaid Act does not preempt Texas law

regarding adoption and compliance with regulatory rules. Appellants argue that

Armstrong v. Exceptional Child Ctr., Inc., 135 S.Ct. 1378 (2015), preempts any

challenges of any sort to a state’s implementation of Medicaid. Appellants’ Motion

at 5. This reading of Armstrong is far too broad, and is contradicted not only by

other Supreme Court holdings and subsequent lower court decisions interpreting

Armstrong, but by Armstrong itself. In Armstrong, the Supreme Court held broadly

that the United States Constitution’s Supremacy Clause does not by itself create a

federal cause of action. Armstrong, 135 S.Ct. at 1383. The Supreme Court went on


                                         13
to hold that the Medicaid Act (42 U.S.C. §§ 1396 et seq.) “implicitly precludes

private enforcement of §30(A).” Id. at 1385 (emphasis added). Armstrong goes no

further.

18)   Armstrong is still very new law, but the only trial court within the Fifth

Circuit that has examined it has confirmed the limit of its holding. See Planned

Parenthood Gulf Coast, Inc. v. Kliebert, 2015 U.S. Dist. LEXIS 146988 (M.D. La.

Oct. 29, 2015). In Kliebert, the District Court rejected the Louisiana Department of

Health and Hospitals’ argument that Armstrong prevented the plaintiffs from

bringing a cause of action under Section 1396a(a)(23)(A)of the Medicaid Act. Id.

at *86 (“Armstrong can be read as definitive as to the breadth of [§30A] but of no

other section”). Armstrong does not even reach the entire Medicaid Act, much less

beyond it. The Kliebert court determined this by looking at Justice Breyer’s

concurrence, which, as the narrowest position supporting the judgment, is the

holding of the Court. See Marks v. United States, 430 U.S. 188, 193 (1977). Justice

Breyer’s concurrence discusses numerous alternative remedies available to the

plaintiffs, including their right to bring an action under the federal Administrative

Procedure Act. Armstrong, 135 S. Ct. at 1389–90 (Breyer, J., concurring in part

and concurring in judgment). Accordingly, although Armstrong holds that private

enforcement of §30A is foreclosed, it does not stand for the proposition that the

Medicaid Act broadly preempts any other state or federal cause of action. Because


                                         14
this case does not involve a challenge under §30A, or any other federal law,

nothing in Armstrong can be construed to hold that the temporary injunction or the

denial of supersedeas constitutes a violation of the U.S. Constitution or the

Medicaid Act.

19)   Furthermore, the Supreme Court has previously held that the Medicaid Act

does not preempt state laws that do not conflict with the Act. In Pharm. Research

& Mfrs. Of Am. v. Walsh, 123 S.Ct. 1855 (2003) a group of prescription drug

manufacturers claimed that the Medicaid Act preempted a Maine statutory

provision regarding Medicaid prescription drug rebates. The Court held that a party

asserting Medicaid preemption bears the burden to prove that there is no Medicaid

related goal or purpose served by the allegedly preempted state law. Walsh, 123

S.Ct. at 1868. Because there was no showing that the Maine rebate program would

result in any impediment to any Medicaid recipient’s access to prescription drugs,

or any other impediment to any Medicaid purpose, the Maine statute was not

preempted. Walsh 123 S.Ct. at 1870. In the case at bar, HHSC claims that the trial

court’s temporary injunction is somehow preempted by the exclusive remedy of

the Secretary under §30A, even though the temporary injunction is not based in

any way on §30A or any other Medicaid provision.

20)   The actual basis for the temporary injunction is HHSC’s failure to comply

with the cost study requirements of 1 TAC §355.8021(a)(2)(B) and HHSC’s failure


                                        15
to follow the APA as required by El Paso Hosp. Dist. v. Tex. Health & Human

Servs. Comm’n, 247 S.W.3d 709, 715 (Tex. 2008). In order to challenge the

temporary injunction on the basis of Medicaid preemption, Walsh requires HHSC

to demonstrate that §355.8021(a)(2)(B) results in an impediment to a Medicaid

goal or purpose. Because HHSC has not made any attempt to do so, Appellants’

Motion presents no basis to claim that the temporary injunction is preempted by

the Medicaid Act.

      F.   The trial court orders do not violate any provision of the Texas
           Constitution.

21)    Rider 50 does not mandate rate reductions. On page 18, Appellants’ Motion

claims that the temporary injunction violates the separation of powers clause of the

Texas Constitution because the reductions are mandated by Rider 50. This is a

mischaracterization of Rider 50, Subsection (c) of which provides: “HHSC shall

reform reimbursement methodology to be in line with industry standards, …while

considering stakeholder input and access to care. … $50,000,000 in General

Revenue Funds savings should be achieved through rate reductions and

$25,000,000 in General Revenue Funds savings may be achieved through various

medical policy initiatives…” and Subsection (d) of which provides: “HHSC shall

develop a plan to allocate the reductions required by Subsection (a) of this rider by

taking actions such as those suggested under Subsections (b) and (c) of this

rider…” 6 RR at Ex. 9, p.3. (emphasis added). The only mandate in this provision
                                         16
is the requirement that reimbursement methodology shall be reformed. The

language regarding rate reductions and other savings is in permissive, not

mandatory language. The absence of mandatory language was pointed out to

Appellants by letters from legislators which were introduced as evidence at the

temporary injunction. 6 RR at Ex. 32. Because Rider 50 did not compel the

proposed rate reductions, there is no basis to claim that the temporary injunction

improperly interfered with any legislative or executive authority in violation of the

Separation of Powers clause.

22)    The temporary injunction does not prevent Appellants from adopting rates

in conformity with applicable rules. On pages 6–8, Appellants’ Motion claims that

the temporary injunction constitutes “judicial review” of HHSC’s rates, which is

yet another mischaracterization of the temporary injunction. The trial court found

that HHSC failed to comply with state law, namely 1 TAC §355.8021(a)(2)(B) and

the APA in adopting and promulgating the proposed rates and merely prohibited

the implementation of rates promulgated in violation of Texas law. CR 592–96.

This is not a substantive review of the rates themselves, but is merely a reflection

of the unremarkable proposition that HHSC, like all other State actors, is not

authorized to act in an arbitrary and capricious manner in disregard of Texas law.

23)   Furthermore, Appellants claim that the temporary injunction somehow

prevents HHSC from complying with an alleged legislative mandate to implement


                                         17
rate reductions. This is completely false – nothing in the temporary injunction

prohibits HHSC from promulgating and adopting rates in conformity with Texas

law. The temporary injunction only prohibits two things: a) implementation of the

rates that were adopted and promulgated in violation of Texas law, CR 595; and b)

adoption and implementation of new rates without complying with the

requirements of §355.8021(a)(2)(B). CR 595–96. While the temporary injunction

remains in effect, HHSC is fully permitted to implement new rates so long as the

rates comply with Texas law. Therefore the temporary injunction has not prevented

HHSC from adopting rates to implement the alleged mandatory budget

requirements of Rider 50. It merely, and unremarkably, requires that HHSC

comply with state law while doing so. Because the temporary injunction allows

HHSC to promulgate and implement rates in accordance with state law, there is no

violation of separation of powers or business with the United States clauses of the

Texas Constitution.

24)   The Texas Supreme Court has expressly approved the judicial review of

reimbursement decisions made by HHSC in violation of state law. In El Paso

Hosp. Dist. v. Tex. Health & Human Servs. Comm’n, 247 S.W.3d 709 (Tex. 2008),

HHSC had ignored its own regulatory rules in changing its system of calculating

Medicaid reimbursement rates. The Texas Supreme Court did not dismiss the case

on the basis that the separation of powers or the business with the United States


                                        18
clauses of the Texas Constitution prohibited the courts from reviewing HHSC’s

failure to comply with its own rules and the APA. The Court held that because

HHSC did not comply with its own regulatory rules and did not comply with the

APA to promulgate new rules, the change in reimbursement calculation was a

violation of Texas law. El Paso Hosp. Dist. at 715. This case is no different and

there is no basis to claim that the temporary injunction violates the Texas

Constitution.

      G. Appellants never presented any of these arguments to the trial
         court, nor have they cited any record references for any briefing or
         evidence in support of their contentions.

25)    Appellants admit that this Court should apply an abuse of discretion

standard of review to their Motion. Appellants’ Motion at 3. In order to show this

Court that they have preserved error as claimed in the Motion, Appellants must

show that the complaint was presented to the trial court by a timely request,

objection, or motion that stated the grounds for the ruling sought. TRAP 33.1(a).

“As a rule, a claim, including a [federal] constitutional claim, must have been

asserted in the trial court in order to be raised on appeal.” Osterberg v. Peca, 12

S.W.3d 31, 39 n.6 (Tex. 2000). Appellants never presented any request, objection,

or motion to the trial court claiming that the relief sought in this lawsuit violated

the Medicaid Act, any provision of the U.S. Constitution, or any provision of the

Texas Constitution. Furthermore, Appellants’ Motion is wholly devoid of any


                                         19
citations for presentation of preserved error, evidence in support of their

contentions, or trial court rulings on their objections. Appellate courts are not

required to search the record for support for an appellant’s objections. Fredonia

State Bank v. General Am. Life Ins., 881 S.W.2d 279, 283 (Tex. 1994). If the

appellant does not include record references, the Court may consider the point

waived. Id. at 284. Because Appellants’ Motion does not comply with TRAP

33.1(a) and fails to cite any record support, the Court should deny the Motion

because all grounds have been waived.

26)    The only evidence cited by Appellants’ Motion is the October 14, 2015

affidavit of Pam McDonald. Appellants’ Motion p. 22–23. The temporary

injunction and denial of supersedeas hearings took place from September 21–23,

2015. 3 RR 1 – 5 RR 9. Clearly the Court did not consider Ms. McDonald’s

affidavit in entering the temporary injunction and the denial of supersedeas,

because the affidavit did not even exist. Appellants cannot claim that the trial judge

abused his discretion based on evidence that did not exist and was not presented

prior to the ruling on the temporary injunction and denial of supersedeas, therefore

the Court should disregard the affidavit of Pam McDonald and any arguments

based on it.




                                         20
      H. Appellants expressly consented to the bond and have not preserved
         any appellate review.

27)   As an alternative to vacating the denial of supersedeas, Appellants now urge

the Court to “reduce the Counter-Supersedeas Bond.” Appellants’ Motion at 21.3

During the hearing on the request for denial of supersedeas, Appellants expressly

consented to the $500 bond. Appellants’ counsel stated that Appellants’ had

“proffered $500,” and acknowledged “that that’s reasonable.” 5 RR 9. This

constitutes express consent to the amount of the bond. Appellants cannot contend

that the trial judge abused his discretion in ordering a bond amount which

Appellants agreed was reasonable.

28)   Not only did Appellants consent to the bond, they never requested the trial

court to review the adequacy of the bond. An appellate court “cannot review the

trial court’s exercise of discretion in ordering the amount of security unless the

record demonstrates that a request was presented to the trial court to determine the

sufficiency of the bond and that the trial court made a ruling thereon.” Law Eng’g

& Envtl. Servs. v. Slosburg Co., 100 S.W.3d 389, 390 (Tex. App.—Houston [1st

Dist.] 2002, order) (citing Hamilton v. Hi-Plains Truck Brokers, Inc., 23 S.W.3d

442, 443 (Tex. App.—Amarillo 2000, no pet.)). Without a motion in the trial court

to increase the amount of the bond, the court of appeals “does not have jurisdiction


3
 Presumably, Appellants meant “increase.” Appellees have no objection to a reduction in the
bond amount.
                                            21
to consider this matter.” Law Eng’g, 100 S.W.3d at 390. Because the request to

increase the bond was not presented to the trial court, the Court has no jurisdiction

to consider the request and Appellants’ Motion should be denied.

      I.   There is no evidentiary or rational basis for the alleged budgetary
           impact of the temporary injunction.

29)   Appellants have requested the Court to order a $100,000,000 bond as the

alleged harm to be caused due to the supposed mandatory budget obligations that

span the next two years. There is absolutely no evidence to support Appellants’

claim of $100,000,000 in harm – Appellants have not cited to any documentary

evidence, trial court testimony, or affidavit supporting this claim. One obvious

reason for this is that no rational person could provide such testimony because it

has no relation to the effect of the temporary injunction. Even if Rider 50 is a

mandate — which it is not — the $100,000,000.00 would be saved over the next

two fiscal years. 6 RR at Ex. 9 p. 3–4. Trial in this case is set for January 18, 2016.

CR 596. At most, the Appellants’ exposure is for whatever portion of the savings

would be realized by that date. But more fundamentally, the only evidence relating

to the impact of the rate cuts on HHSC is the testimony of Richard Allgeyer,

Director of HHSC’s Center for Strategic Decision Support. Mr. Allgeyer testified

that “because Medicaid is an entitlement, if we run out of our appropriation, they

will give us a supplemental appropriation next session. They won’t like it, but they



                                          22
will, and they almost always do because this is a lot of money.” 4 RR 240. There is

simply no evidentiary basis for the alleged impact of the temporary injunction.

30)   Even if this Court were inclined to consider Appellants’ request without the

benefit of an underlying trial court order or supporting evidence, Appellants bear

the burden to show that their request for a $100,000,000.00 bond is not likely to

cause Appellees substantial economic harm. Accord TEX. CIV. PRAC. & REM. CODE

§52.006(c); TEX. R. APP. P. 24.2(b) (instructing trial courts to lower amounts of

security required to suspend enforcement of judgments to amounts that will not

cause substantial economic harm to judgment debtors). Such a bond amount would

obviously cause Appellees tremendous substantial harm. Though Appellees would

be happy to offer evidence to that effect in an appropriate proceeding with the trial

court, this Court can infer as much from Michael Reiswig’s testimony. Mr.

Reiswig is president and CEO of Care Options for Kids, 3 RR 80, whose revenue

makes up approximately 9% of the home health market for pediatric therapy. 3 RR

84. He testified that an annualized loss of just $4.5 million dollars would force his

company to “close the doors.” 3 RR 100. Posting a $100,000,000.00 bond would

certainly have the same effect.

31)   Finally, Appellants cannot show that the temporary injunction has any actual

impact on the HHSC budget because HHSC is not prohibited from adopting rate

reductions so long as they comply with their own regulatory rules and the APA.


                                         23
The temporary injunction permits HHSC to adopt rate reductions so long as it

complies with 1 TAC §355.8021(a)(2)(B). CR 595–96. If HHSC believes it is

under a legislative mandate to implement the rate reductions, all it needs to do is

comply with its own regulatory rules, or adopt new rules as required by the APA,

to promulgate and implement the new rates. HHSC has not made any attempt to do

so, therefore the failure to implement rate reductions to achieve the alleged

mandatory budget savings is due to HHSC’s own inaction, not the temporary

injunction.

                              IV.    CONCLUSION

32)   Appellants’ Motion constitutes a direct attack on the temporary injunction

without even a thin disguise in the form of a motion to vacate the denial of

supersedeas. The Motion wholly mischaracterizes the basis for the relief sought

and the legal grounds for the temporary injunction in order to fabricate claims of

federal preemption and constitutional violations out of whole cloth. Nothing in the

relief requested or granted violates any federal statute or any constitutional

provision. Furthermore, Appellants failed to preserve and have waived all

objections in the Motion because Appellants never presented those objections to

the trial court, nor is there any attempt to show preservation of error or evidentiary

support through record citations. Appellants expressly consented to the bond

amount and never requested the trial court to reconsider the bond, therefore there is


                                         24
no basis for the Court to consider the request to increase the bond. Even if such

request had been preserved for appellate consideration, there is absolutely no

evidence to support the claimed bond amount, which is wholly divorced from any

actual impact that might result from the temporary injunction. Accordingly, the

Court should deny Appellants’ Motion.

                               Respectfully submitted,

                               RICHARDS RODRIGUEZ & SKEITH, LLP
                               816 Congress Avenue, Suite 1200
                               Austin, Texas 78701
                               Telephone: 512-476-0005
                               Facsimile: 512-476-1513

                               By: /s/ Daniel R. Richards_____________
                                   DANIEL R. RICHARDS
                                   State Bar No. 00791520
                                   drichards@rrsfirm.com
                                   BENJAMIN H. HATHAWAY
                                   State Bar No. 09224500
                                   bhathaway@rrsfirm.com
                                   CLARK RICHARDS
                                   State Bar No. 90001613
                                   crichards@rrsfirm.com
                                   CHASE C. HAMILTON
                                   State Bar No. 24059881
                                    chamilton@rrsfirm.com

                               ATTORNEYS FOR APPELLEES




                                        25
                        CERTIFICATE OF SERVICE


       I hereby certify that the foregoing document has been delivered to the
following counsel of records on this, the 9th day of November 2015 by electronic
notification and e-mail:

Kristofer S. Monson
Assistant Solicitor General
Office of the Attorney General of Texas
P.O. Box 12548, (MC 059)
Austin, Texas 78711-2548
Kristofer.monson@texasattorneygeneral.gov


                                    /s/ Daniel R. Richards_____________
                                    DANIEL R. RICHARDS




                                      26
                             APPENDIX

TAB 1   Letters from legislators to Commissioner Chris Traylor
        (6 RR at Ex. 32)




                                   27
TAB 1
                                   STATE of TEXAS
                         HOUSE of ILEPILESENTATIVES




                                                                                 JUL



 Chris Traylor, Executive Commissioner                                          July
 Texas Health and Human Services Commission
 Brown-Heatly Building
 49oo N. Lamar Blvd.
 Austin, TX 7875I-~3~

 Re: HHSC proposed rate reductions for certain acute care providers in home health and
 outpatient settings.

 Dear Commissioner Traylor,

 I first want to reiterate both my enthusiasm for and congratulations on your
 appointment as Executive Commissioner of the Health and Human Services
 Commission. The agency is in great hands, and that is great news for all Texans,

I therefore write to you with the hope that you hear my strong opposition to the rate
reductions that HHSC has proposed for physical, occupational, and speech therapy
provided in certain home health and outpatient settings, While other states are
accepting billions in federal dollars to create actual healthcare systems for their poor
and working class citizens, Texas is now deciding whether to implement changes that
could deny critical services to 50,000 poor and sick children.

This does not have to happen. First, Rider 50 does not compel these reductions,
and in light of what we kamw now, I question whether it even allows such reductions,
The language contained in the rider does not require HHSC to reduce rates by a certain
amount, The rider was carefully written to use the word "should" - not "shall" - in
reference to a potential dollar amount with regards to these redflcfions. This is no small
difference, particularly when the same subsection does in fact compel - by the use of the
word "shall" - HHSC to make these reimbursement reforms "while considering
stakeholder input and access to care,"

                                                              Exhibit
                                                              Date
                                                              Kelly Fisi:iel;


                                                                                HHSC00002354_00022
I therefore ask whether HHSC h~s in fact considered these two required f~ctors, Access
to care will certainly be cut off for tens of thousands of Texas children, many of whom
have chronic but very treatable conditions. As for stakehb]der input~ you have not just
heard from me and so many of my colleagues; you have also heard from the almost 200
people who were able to make it to HHSC’s Overcrowded public hearing on Monday to
describe the harm these reductions would cause.

Meanwhile, I do not know of any Legislator who has written in support of these cuts.
A.~er all, what elected official would want to put their name next to a decision so
harmful to Texas children? And that is exactly the problem with HHSC moving forward
with the proposal. We all lauow that tough choices must be made, but the citizens of this
state deserve do have their elected representaf2ves make - and defend - those choices. It
is not HHSC’s job to make the unpopular deci.sions the Legislature will not, and doing so
would be a disservice to you, the agency, and the people of this state.

I therefore ask that HHSC not move forward with the proposed cuts. They are
unnecessary, harmfi~l, and could even be self-defeating in terms of cost hy allowing
currently manageable conditions to transform into chronic, lifelong ailments.

Thank you for your good work and service to the State of Texas.



Sincerely,




Garnet F. Coleman
Texas State Representagve
District 147
5t2.453.o5~4




                                                                           HHSC00002354 00023
     TEXAS HOUSE OF REPRESENTATIVES




                                                 GENE Wu
                                                    Dis’rl?lc’r I ;37


   -July   16, 2015
  The H~norable Chris Traylor
  EXecutive Commissioner
  Texas Health and Human Services Commission
  Attn: Rate Analyslse Mail Code H-,tO0
  Brown-Heatl~, Building
  490O North Lama,
  Austin, Texas 78751

  Deaf Commissioner Trayior:

  I am writing to express my deep concern about the proposed cuts to Med[cald reimbursement
  rates for physical, occupational, and speech therapy. Such cuts are projected to result In the
  disastrous loss of access to medically necessary services for t~ns of thousands of low4ncome
 children with devel.opmetlta] delays arid.~pedal needs. I Join fellow legislators In opposing these
 cuts, and ask thai: you priorttize the needs of our most vulnerable Texans by ensuring access to
 these services,

 Medical communities widely accept that children with disabilities reach thelr fu!les~ potential
 when they have access to eady and consistent Intervention. Klds who use these much needed
evldence~based :~beraptes are mare likely to succeed In school and later In the workfotce, which
reduces.their dependence on care and services later tn life. It ls our s~te’s legal and e~hlcal
obligation to ensure access to care for children with special needs - and this rate @I: will mean
that many low-income families will no longer have access to necessary care.

.Many of the clinics tha~ provide these, medical!y necessary services wlll not be able te Continue
to. operBte when these deep raise ~uts go into effecL S~afF at one clinic In my dls~c’~ wh!ch
serves over 600 child[on told my offtcetha~ theywou d need to shuI~ their doors. Not only will
the children they serve lose the care they need, but their 100 employees wll lose their Jobs.
Tliis wll!. be the situation for Clinics aci’o~ T~as if HHSC authorizes this rate change. Children




                C^~rou; P.O. Box 2910 . Aus’no, TX 78768-29 I0. (512) 463-0492. F~x: (512) 463-1182
                       D~rmcr; 6500 Roo~m. S,ao. C, HousTon, TX 77074. (713) 271-3900




                                                                                                      H HSC00002354_00003
from families with means wil! continue to have access to the services they need, while children
from low-Income families wlll be left behind,

I do not belleve that budget Rider 50 mandates these drastic cuts, especially given the effec~
they would have on access to care. The lmpac~ of this rate change’may violate the righl: of
children with disabilities to access medically necessary services, ;1 urge you not to proceed with
this dangerous plan. :[t threatens the well-being of Texas children, and Is counter to our duLM as
a state to provide medical care for low-income klds.

Thank you t~or your consideration. Please do not. hesitate b~ contact my office If you have any
questions or would like to dlscuss this issue further.

Sincerely,




Gone Wu
State Representative
Dlstdct 137




                                                                                   HHSC00002354_00004
                                             Mary E, Gonz ez
                                               Sta~o Represen~atlve, District 75




  July 17, 2015
                                                                                             JUL         2015
 Commissioner Chris Traylor
 Texas Health and Human Services Commission
 Attention: Rate Analysis, Mail Code H-400
 Brown-Heatly Building
 4900 North Lamar
 Austin, Texas 78751

 Re: Proposed changes to reimbursement rates under Rider 50 of the 2016-2017 Biennium Budget

 Dear Commissioner Traylor,

 ]t has come ta my attention that HHSC is currently reviewing proposed changes for the reimbursement
 rates as a part of fulfilling the cost reduction plans outlined in Rider 50 of the 20 ! 6-20] 7 budget. ] want to
 share, in no. unclear terms, my deep concern about the possibly devastating potential of the proposed rate
 reductions for Medicaid reimbursements,

 Reducing reimbursement rotes entries a significant risk for those who rely on Med~cald. When
 reimbursement rates fall, the impact is felt most distlnefly by the patients - in this case, children and
 families with serious medical needs. Ira Medicaid patient becomes a financial burden, physicians may
 have no choice but to turn them away.

According t6 conservative estimates, a $50 m~lllon reduction in reimbursement rates for these Texans
would leave’60,000 pediatric patients without access to vital healthcam services - and this is the low end
of the potential cost to publi~ health in our state.

Further, these reimbursement rate reductions stand to impact the availability of therapy services. At a time
when Texas faces shortages of tralned healthcare l~rofessionals across the state, we could lose a further
7,500 therapists who would find themselves unemployed as a result of these rate r~duotions.

The patients who receive these services are lacing birth defects, genetic disorders, and physical or
cognitive disabilities, They have cerebral palsy, developmenta! delays, or were born preterm and require
intensive medleal services and ewe. By ~’ocusing the reimbursement r~duetions requested in Rider 50 on
~ese services, we are placing the burden on the Texans who most need our support - and their families,

For me, this isn’tjust about policy - it is personal, My youngest sister has a developmental disability, and
I have soon firsthand the importance ofhealtheare access to her quality of Itfe, My family strives to
support her the best way we can, but if she were ever unable to access healtheare services duo to an
attempt to reduce reimbursement rotes, the impact would be devastating. For the ten.s of~oussnds of


             2910, Agstln, T~s 78768-~910 ¯ ~hone (5!2) 468-0613, fax 1~12)4’~,3-1237. rnao’.gonzale~@house.~l~le,~.us
         Dhlrkt O~ic~: 1 }200 Sanlo~ ,~nch~z Roed, Socorro, Texas 79927, phone (915) 790-229?, fox (9~ 5) 790,2




                                                                                                          HHSC00002354_00008
                                            Mary E. Gonz lez
                                               Slate RepresentatiVe, Dislr~c~ 75




famillesjust like mine, who have children and brothers and sisters they love, who stand to feel the most
dir~ot impact ~om this rate reduot}on - f ask you to rejeot th~s proposal. We should be supporting these
families, not asking them to carry an oven greater burden,

Thank you for your consideration, If there is ever any way 1 ~an be of assistance on this issue ot any
future rule proposal, please feel free to contact me at any time by calling my office at (512)463-0613 or
emailing me at Mary.G6nzalez@house,state.tx,us,

Sineemmert~e,.




House Dis~et 75




    P.O. Box 2910. Ausgn~ T~×os 78768.2910 ¯ phone (512) 4fi~-0613, t’a~ (512) 463.1237. rnapi.f]onzalez@house.slale.lx.us
        Dis{’ri¢/Office: 11200 Sonlos Soncl~ez Rood ¯ Socorro, Texos 79927 ’ phone {915) 790-2299,/’o~ (915)790.2144




                                                                                                              HHSCO0002354_O0009
                                                                                                        Re, so~ 2~1o




                                             SYLV~STI~R TURNEH
                                            STAT~ REPREs ENTATIV~:

  July 20, 2015

  Mr. Chris Traylor
  Executive Commissioner
  Texas Health and Human S~rviees Commission
  Atlention: Rate Analysis, Mall Code H-400
  Brown-Heafly Build~g                                                    JUL 21 ’ 015
  4900 North Lamar
  Austin, Toxas 78751                                                     0FR~EOF~E

  Dear Commissioner Traylor:

 Thank you for yourprompt reply to my previous inquiry regarding pediatric therapy rates.

 Pi~asO allow me to :dt~e0t your attention to the *~access to ear~" referenez in Rider 5.0. This !aaguago first
 app~arecl, and was adopted overwhelmingly, in the Texas HoUse. The words are pur~0sOful anti carry
 intent.                                          "                                          ’

        provide .m~ With a copy Of all impact s.tudles and e~onom[~ analyses ~athavo b~n. conduced
 pmvtder no~orks. Pteaso al~o fd~d to me ~y slm~l~ stu~os Or e~omin ~alyses ~at hav~ be~n
 e0ndueted by anyon~ of~SC~s con~ae~d managed-care organt~ons ~g~ding ~is Issue.


.~iS,..SO ~hat lmay ~a~e?f~lly mvie~ me aee~ t0 ~ta whloh you ~o basing ~ d~o~Si0ns rog~dlng
~hese ra~reducaom. ’                                   ......

Thank you wry muoh,

Sincerely,




Rep. 8ytvester Turner
Distrlot 139~ Houston, Texas




                                                                                                HHSC00002354_00001
                                                                                                            COMMI’fTISES;

   PRE~81DENI" PRO TEMPORE
          1999 - 2000
                                                                                                            Tranepodallon


         July 20, 2015

         Mr. Chris Traylor, Executlvo Commissioner
         Health and Human Services Commission                                            JUL 2, t ’2015
         4900 N. Lamar Blvd.
         Austin, TX 78751.2316

         Dear Commissioner Traylor,

        It has come t0 .my attehtioa !hat them are proposed reductions to Medlca~d reimbursements for
        physical, occupational, and _~..~e~h therapy provided by Comprehensive Outpatient Rehabilitation
        Facilities/Outpatient ~-ehabfl~tation Facilities .(CORF]ORF), Home Health Agencies (HHA), and
       .~dependemt Therapists set to .,go into effect in September, Medical providers of these criti~at
        s~,r~ices in my district have ~i~ress~d concern that ahese reductions could make it difficult to
       provide fllese esse.,afial services.

       Reducing all Medicaid reimbursement rotes for physical, occupational and speech therapy to 145-
       pereen~ of the median Texas commeroi~ reimbursement rate will have a damaging impact on access
       to services for medically £ragiie.elflldren, Thes~ rate reductions will likely decrease patient options
       for thet~p~ services in my d~Striet~ reduce the tir~e frame for when services can begin, and risk
       provider eontlnuity for therapy services needed by tSe~patient,

      I untierstand that tlie.Health and Human.~,erwces’ Commission
                                                             ..... (HHSC)
                                                                       RiderS0"
                                                                          .....       (e) in H;B, i, g4th
      Legi~Iature, Regular Session, 20i5, directs. ~8C to achieve at feast $50 million in General
      Re~)enue ~avings each fiscal yoaz~ through rate reduetions~ However, Rider 50 (~): allows I-II-ISC to
      e0nsider~stakeholder input and ae~ss: to ears wlae:n determini.ng the methodology to be usod for
      reimbursement of therapy services,

      1 would urge you to carefully consider how these reductions will impact therapy services throughout
      the state b~£ore making a decision to implement reductions that COuld rextuee access ~o essential
      therapy services,

      Thank you for your consideration, Please contact my office if you need additional Information or
      have any questions,




    Lydo aani’m                                          P.o. ~ax 12068                          2440 Texas Parkway, Sulle 110
Houslon, Texaa ~f102                                     (612) 463-01t8
  (713) 236-0308                                                                                       (281) 281-2380
                                                     FAXt (512) 403.0008
FAX~ (713} 236,0604                                                                                  FAX: (281) 26!~726
                                                    Dial 711 For Relay Dells
                                            E.MaI/: rods ey, ellls @son ate,slata.~,u8




                                                                                                HHSC00002354_00002
 COMMITTEES
                                                                                                         COMMITTEE8
 FINANC~ W~ Chair                        THE SENATE OF TEXAS                                       NATURAL RESOURCE8 &
 LEGISLATIVr~ BUDGRT I~OARD.
                                                                                                 ECONOMIC DEVELOPMENT
 SUNSh’TADV~SORY COMMISSION           JUAN aCHUY" HINOJOSA                                          AGRICULTURE, WAT~iR~:
                                       PRESIDENT PRO TEMPORE                                               RURAL A~AIP~
                                                                                                         C~E~AL JLTSTIC~
                                                       DISTRICT 20


         July 20, 2015

                                                                                   C VED
         Comm~!o..neeChrls Traylor
         Texas Health anti Human Services Commission
         Brown-Heafly Building
         4900 N, Lamar Boulevard
         Austin, Texas 78751-2316


        Dear Commissioner Tro!! or,

        I am concerned with the proposed Medicaid payment rates that the Health and Human Services
        Commission h~s recommended for physical, cecupationfl, and speech therapy provided by
        .Comprehensive Outpatient Rehabilitation Facilities/Outpatient Rehabilitation Fa0illties
        (CORF/ORF), Home HeMth Agencies (HHA), 0rid Independent Therapists. The proposed rate
        reductions are not equitable and I am concerned that a significant access to care problem will
        ensue should these rates be implemented.

       As Vice Chair of the Senate Finance Committee, I am well aware of the legislative directive for
       rate reductions in Medicaid spending by the State of Tex~s, and that these proposed rates are
       intended to accomplish the goals of the General Appropriations Act, Heal~ and Human Services
       Commission Rider 50 (House Bill 1, 84R). Utilizing cost containment measures to reduce our
       state’s Medicaid burden is necessary and frequently beneficial, however, these proposed rates are
       a very Iorge rate reduction in a short amount of time.

      Implementing the proposed rates could result in an inadequate network of these providers in our
      state, ~ud threaten the aocesslbility to therapy for our most vulnerable populations, Many therapy
      providers will not be able to absorb such a large rate cut and may no longer remain viable
      causing them to go out of business. This is particularly concerning in rural areas ~d areas with
      high Medicaid populations such as my Senate District in the Rio Grande VMley.




                                                      P,O, BOX 12068               SOUTH FADRE ISLAND DRIVE, SUITE 291
McALLEM~ TEX.4S 7~504-30~9                         CAPITOL DUILD1NG                  CORPUS CHRISTI, TEXAS 784aS
                                                  AUffHN, TF~KAS 787H               3611ZZ%1200 ¯ FAX:361/225,0119
                                                 TOLL FREI~ 866/269-5016
                                            S12/465-1)120 ¯ FAX:512/dfi3..03..93
                                               DIALTI1 IZOR RELAYCALLS




                                                                                           HHSC00002354 00005
          It is critical that the HHSC rate setting process take into account the comments, suggestions, and
          perspectives of our Texas therapy providers, all of whom have first.hand insight of the situation
          and wilt be impacted by your decisions, The intent of the Legislature is to effectively reduce
          Medicaid spending, yet implement an equitable rate reduction ~hroughout provider types and
          allow providers to remain viable and maintain the quality of care Texans deserve.

          Thank you for your time and consideration of this matter. Should you have any questions or need
          additional information, please contact my office.




   ~I2 NOLANA, SUITI3 410B                              P,O, IIOX 12088               ~OUTH PADRE I~LAND DR1VE~ SUITE 291
                                                     CAI’D’OL B UILDING                 CoRPus C[-[RIS"TI~ TII,YAS 78415
                                                     AUSTIN, T~<AS 78711               361/225-121~0 ’ ["AN: 361/22~-Dl19
9551972-:]~41 ’, 9~5/664-0602PAX
                                                   TOLL FREE: fl66/o-59-~016
                                               5121453,012~ , FAX~5121463,0229
                                                 DIAL 2]l FOR RELAY ~L~

                                             E-MA~ ~uan.hinoja~ag~enale,slat~,~us




                                                                                               HHSC00002354_00006
  July 22, 2015


  Mr. Chris Traylor                                                     OFFI[~EOF T.fIE ¯
  ]~xecutlve Commissioner
  Texas Health and Human Services Commission
  ATTN; Rate Analysis, Marl Code H-400
  Brown-Hourly Bufldlng
  4900 North Lamar
  Austin, Texas 78751


 RE: Proposed Adjusted Medicaid Payment Rate Redvcttons for Physical, Occupationalj and
 Speech Therapy


 Dear Commissioner Traylor:

 We writ~-today ia,opp:q~itlon to the rates proposed by the Health and Human Services Commission
 ~HHSC)for physical, occupational, and speech therapy provided by C0 mprehens!:~,,e .Outpatient
 Rehabilitation Fael]ltIes/O~t~at[en~ Rehabilitation Facilities (CORE/ORF), Home Health Agencies (HHA),
 and Independent Therap[~, W~ fear the proposed reduc~o~s will severely I~mlt access to medically-
 necessary scribes fsr ~e m~st vulnerable in our state.

 HHSC has identified budget Rider 50 as the driver for these rate reductions, However, when
 que~timaed abau~ th~..JmpaC~ fhismeasu re we[rid have on those receiving servlces, Chairman John
 Otto of~e House CommitteeoaApprUprlatlons made [t c[eae that "it was not intended to ~take
.anybodyoff services." Yet HHSC’S proposed rates would do just that- [’educe providel~ and’access
 [o care for thousands o£Texans. In Communication with our o£~ces~ providers estimated that if
these rate reductions are implemented statewlde, 60,000 ped~atrIc patients will ~ose access to care
and 7,500 therapists will be unemployed.

 The therapf~s under consideration are designed to m!tigate aay ~ar~h6r ph2siCal:df.c0gnIttvedeIays
that ~fght [mpac~ a child’s w~!I~baing, tnd[~dua!s rebe m,os~ tmp~c~ed :bY ~h~s~prop,o~a! ~ndude
Children rece!~ng services for bfr~b defects,,g~neffC disorders, and/or:,phys~cal or cognitive
.d~abiIities, I thinkyou would agree that, ra~her than ~ubject them t~ addi~lonal barriers, we have a
:du ~f0 safeffitard these fragile young Texans;




                                                                                        HHSC00002354_00010
Page2 Of 3



We urge you to comprehensively study the effect this level of reductions could have on access to
care prior to the implementation of any cost-reduction s~rategy, While short-term cost containment
may be possible using this methodology, the longer term cost to our state and to those most in need
Is potentially catastrophic,

Your time and efforts to better the State of Texas are much appreciated. If you have any questions
or concerns regarding cur request, please contact our offices,

Sincerely,




State Rep. Carol Alvarado            State Rep, Rafael Anchla                   Rep, Diego Bernal
    House District E4S                  House District :103                  House District 123




 State Rep, Terry Canales          State Rep. (3arne[ Coleman            State Rep. Dawnna Dukes
     House District 40                 House District 147                    House District 46




 State Rep. Jesslca Farter           State Rep. Ryan Guillen
                                                                        St~rez
    House Dlstr]ct ~.48                 House District 31                House District




State Rep, Donna Howard               State Rep, Celia Israel             State Rep, i=rtc Johnson
    House District 48                   House Dlstrlct 50                    House District :[00




State Rep, Eddie Luc[o Itl        State Rep, Armando Martlnez        State Rep, Ruth Jones McClendon
    House Dls~rlct 38                   House District 39                    House District ;~20




 State Rep. Borris Miles             State Rep, In& Minjarez               State Rep, Joe Moody
   House District 3.46                 House District 3.24                   House District 78




                                                                                    HHSC00002354_00011
 Executive Commlssionee Chris Tvaylor
 July 22,
 P~ge 3 of 3




State R.ep. Serglo Mufioz, Jr.           State Rep, Elllott NaIshtat      State Rep, Ron Reynolds
      House Distrlct 36                      House District 49               House District 27




State Rep, Eddie Rodrlguez              State Rap. Justin Rodrlguez    State Rep. Ramon Remero, Jr.
     House District                         House District                   House District 90




   State Rep. Toni Rose                  State Rep. Chris Turner          State Rep, Hubert Vo
    House District :tlO                    House District 101               House District :~49




State Rep, Armando Walle
   House Dl~r[ct 140




                                                                                 HHSCO0002354_O0012
             State Representative


             Dis "trlct 109




  July 23~ 20!5




  Mr. Chris Traylor, Executive Commissioner
 Texas Health and Human Servlces Commission
 Attention; Rote Analysis, Mall Code
 Brown-Heatley Building
 4900 North Lamer
 Austin, Texas 7875:[

             RE,’    Poyment rates "for Physlcol, Occupotiond, end Speech Theropy provided by
                     Comprehensive Outpotlent Rehabllitotlon F~cllftles (CORF/ORF}~ Home Health Agencies
                     (HHA}~ and Independent Therapists are proposed to be effective September 1~ 2015.

 Dear Commissioner Traylor:

 You recently received a letter (enclosed), signed ljy 28 Texas HOuse Repr~sent,atlves, which oppa~e~ the
 rate reductions proposed by the Health and HUman so.Ices ~ommlsslen (HHSC) for physical,
 oc~upatlona!,      and       speech   therapy   provided    bY   Comprehensive    Outpatient      R~habllltatlon
 Facilities/Outpatient        Rebabltatlon   Facilities   (CORF/ORF),   Home   Health   ABencles    (HHA),   and
 Independent The~aplsts,

1 write you. today.to Join my colleagues In their concern and opposition to the proposed rote reductions
for these important therapies.

Thank you very much for your time and consideration of our co~tcerns for the very vulnerable children
who deserve uninterrupted access to care. Please do not hesitate to corltact me directly at 512-463-
0953.

Sincerely,



Helen Glddlngs




                                                                                                HHSC00002354_00040
                                                           J au s B.
                                                                    Dis~r~ct 69
  July 23, 203.5

  Commissioner Chris Traylor
  Texas Health and Human Services Commission                                                                 JUL 27 2015
  Brown-Heatly Building
  4900 N, Lamer Boulevard                                                                                    OFFICEOFTflI~
  Austin, Texas 78751-233.6
                                                                                                   HHS EXECtlTIVI~ CO~O~ER

  Commisslo net TrayIor,                                               ’~

  I write this letter to express my thoughts and ~oncetng~ega~ding:the proposed Medicaid payment rates for
 physical, occupational, end speech therapy                                               Outpatient Rehabilitation


 Earlier this


 fulfill HHSC Rider 50 In House 8111 L I bellev~~.~!~m~nt Is sound policy and a frscaJ necessity for the
                                                               .. an~ voted, for HB ~, However, I believe that~lt should
 state In the Medl~td. pro jram which Is a,=~:~,,re~so~l;sug~orted.~
 not and F~.~..~9~ ~a~net~ha~,{~£~ns~n6~guata acee~to care for man In our~ate




simply 8o~ fist allow k         ~rovlders to a tar’their business practt~es su~ lan~ly t6 adjust to

I do not envy ~he job that HHSC has In attemptln~ to find ~ost savlnBs on a program as large and comple~
Medicaid, However, this proposed rate redu~lon Is not the rl~h~ answer and will mean Inadequate access to care
for some of our mos~ vulnerable populations,

Thank you for your consideration In this matter, If I can be of assistance on this or any other subJect~ please
contact my office.

Sincerely,




 C^vrro~. Om,mv~ l:O, no~ 2910 . ht..~, "gl!~^s 78768~2910 ¯ (512),16;3-055,f , t~,:x (512)463-816t
                               DrsTmCr O~mtcll: 1206 Iff~.’tTOn RO,’,I~ , \VICIII’~. ~t~Ua, ’rl~x^.~ 76302




                                                                                                                    HHSCO0002354_O0039
                                              July 23, 2015
  Chds Traylor, Executive Director
  Texas Health and Human Services Commission
  4900 N. Lamar Blvd
  Austin, TX 787~1-2M6

  Dear Commissioner Traylor:

 Th~ you for your continued leadership to pm~id~ health and-human services that support many
 TVx~ fami~ie. S, esp~dattyth~ir children: This is:to .~Xpre~s m~ serious concerns regarding the
 H~alth mad Human Services Commission’s (HHSC) proposed Medicaid rate outs to pediatd0 speech,
 OOOUpafional,and physioa! thempy services. Became these entitlement services areprovided to
 children who haVO tho highest l~vels ofneed, it iS critical that the decreases do not.dimin~sh their
 access to care or compromise the current continuity of ca~r~ and futura netWOrk adequacy. Givem
 your September t implementation date, I would appr~ate yourdirecting the appropriate HH8 C
 personnel to meet with my s~aff and interested stakeholders and advobates immediately, fit is my
 hope that this discussion wtlI clarify how these rates.weredeveloped; how they wilt impact access to
 care, providers, services, and children; and whcthe~ there areany solutions and ~dtemafives.

 PuMi~ testimonyheard on Juty,~O over~vh~lmingly opposed thesepropbs~d cu~s. Witnesses stated
 th~ these~reductions, as high as.68 percent for some. ~-~rvices, would resul~ in reduced access for
 Texans Who have:q0mplex needs, They also no~extthat a 37 percent reduction in ~he reimbursement
 £or an evaluafiori eou!d prevent access to the vcryassessments %ottuired to receive services,
 I share the concerns raised by many who testified receding:the lack of transparency throughout this
 proee~S~.
      ~-. T~em... reportedly.
                       .      was.
                                . noOppo~i~for.
                                     .            public ¢~m.ment regarding the related cost
  ontamment rMer dunng the legmtative session, and the.method010gy ~ed to develop these
:reductions has.not been published 0r sI~ared, What% more,, it is uncle~ Whether H!-ISC considered
 the impact these cuts would have on p~ograms:suoh a~ the Early ChildhoOd Intercenfionprogrmn, as
the agency has not released estimates regarding change~to access to.ear~ o~ quatRy 0f afire in
specific programs.

Ple2se o~k your stoffto contact my health and human services legislative’a~de, Isabel Casas, at
5 ~2[463~02.21 oriSabel,casas@senate state tx us; immediately to schedule thls meeting as soon as
pozZ~le, T.har~ you for your attention to ~s m~Iter.

Very.trUly yours~      , ,   ,


~udith Zaffirtni




                                                                                   HHSC00002354..00025
          COMMITTE~ ON
                                                                                                                WI4SHINOTON OFFICE:
 EDUCATION AND THe" WORKFORCE
   RANKING MhM~3En, SU~COMMI~ ~N




         ~0~   AND PENSIONS



OOI~MITTEE ON RNANCIAL SERVICES


                                              House of Representatives
                                                  Rub& Hinojosa
                                                           ISth District, Tex~ts
       Jtlly 24~ 20 ] 5
                                                                                                            Rop.HltmJoza @mnlhhouso.9 0v
                                                                                                             www, hou~a,govhl[no~ona


      Commissioner Chris Traylor
      Texas Health and Human Services
      Brown-Heatly Building
      4900 N. Lamar Boulevard
      Austin, Texas 78751-2316


      Dear Commissioner Traylor;

       As the federal representative of the 15’~’ Congressional Dislrlct ofTexa~, I write to exp.r~s concern .over
      the changes to Medieald payment rates under the Texas General Appropriations Act~ Health and Human
      SeWides Commission Ktder 50.1(House Bill 1~ 84~), The reJmburs~mentreductionsf~r~habjUtatbn.and
      therapy, services may create additional obstacles ~or the vulnembIe populations tn my district,

     Both patients and h~ith.servlce prbvlders in ’the Rio Grande Valley have expressed their concern with
     Ibis change The. 0UtHn~ed Medicaid r~mbursement d~ereases wilt add additional finanofal strains to
     current occupational, physical, and si~e.i~c.h therapists, who may be forcedto limli their hours or go out of
     business as a ~sult. l.lfe:~ar these rate reductions will limit patient access to care.

     It is my hope tha~ the State will reconsider the current r~te: redue.ti0n and formulate a fair payment rate,
     ensuring Texans’ aeeess to important rehabilitative services is unaffeetad

      I thank you for your attention to this matter and appreciate the service the Texas Health and Human
     S~rvlces Commission provides for the p~0ple O~my. Congressional District, If there is anything I can do
     to assist you in your efforts, pJease contact my Edlnburg DistrictOff~ce at (956) ~82.;5545.

    Sir!core!y,


    Ruben Hinojosa
    Member of Congress




                                   Thb mailing Wa~ prepared, published, and moiled nt (o×payor oxper~se




                                                                                                          HHSC00002354_00084
                                      ROSERT L. NICHOLS
                                            STATE ~ENATO~


                                             July 28, 2015

                                                                                     JUL
  Commissioner Chris Traylor
  Ex cutive Comm~sslonsr, Health and Human Services Commlss~on
  Mail Code-40010 4~1~ Floor
  4900 North Lamar Blvd,
  Austin, Texas 78751

  Dear Commissioner Traylor;

  CongratuIation~ on yore’ recent appointment as Executive Commissioner of the Texas Health and
  Human SePciees Commission (HHSC), I know you are committed to m~Jn~ning mad improving
 the health and bureau services system in Tex~s, and administering its programs in ac0ordmace
 with the highest standards of customer service and accofintabilRy for the effective use of runts,

 I am writing to share concerns raised by Medicaid providers in Senate District 3 regarding
 proposed rate cuts tbr acute care therapy providers, including physical, oceupafional and speech
 therapisfs, While the Legislature directed HHSC to implement Medicaid funding reductions and
 cost containment strategies (House Bill I - General Appropriations Act, 83r~ Regular Session
 HHSC Rider #50), the effect of the proposed rate reductions, if implemented as scheduled on
 September Ia, 2015, may have the unintended effect of limiting a~eess to care, particularly in
 rural areas i~Muding Senate District 3.

It is my understanding the basis for the proposed rat~ reductions stem form an HH~C analysis of
a data collected by Texas A&M University. The I-fHSC analysis, dated February 25, 2015 and
entitled, ..Rev~ew.of,. Texas Medicaid’Acute Care ~I~aerapy Pr~gram~ raay not fully refiner an
equitable comparison of states’ Medicaid rates. Furthermore, rules in Title 1, Part 15, Chapter
355 of the ’f’ex~s Administrative Code limiting the methodology to establish rates makes no
reference to ~onsidemtion of commemial rates. As you know, commercial rates may be affected
by additional fact6rs including limits on utilization, coinsuranc¢ and copaymonts.

It is my understanding several stakeholders have met with HHSC to provide altemafive strategies
to aclfieve the savings required by law, Please ensure I-IHSC gives ful! and due consideration to
these proposals, so as to ensure the effect of any rate reduction doe,s not result in a decrease in
access to care. Additionally, I ask the agency to work to ensure that ~y rate cuts do not have a
disproportio~mte share on a~cess to ~ervtce~ in rumt ar~as,




                                                                                     HHSC00002354._00044
Thank you for your ¢o]~sideration, and thank you for your leadership of tim Texas Health and
Human Servicss Commission, Please do not h~sitato to contact m~ if I may b~ ~f assistance to
you and the agency in this or any other matter,

                                   Sincerely,




                                   Robert L, Nichols
                                   State Senator, Dis~t~t 3

RLN/al




                                                                                HHSC00002354_00045
                                                       J~lly 30, 2015


  Mr. Chris Traylor
  Health and Human Services Commission
  P,O. Box 13247                                                                     AUB 0 ~ 2015
  Austin, TX 78711                                                                   OFR~EOETf~E ~
  Dear Mr. Traylor,

          As yo.u know, our Local Mental Health Authorities provide critical services to those in
 our community who are moStfn need. In my homet0~vn ofLufldn, we a~e blessed to have the
 Burke Cer~ter~ which I and many.~thers consider to-do a ~hining example ofhbw:L~s ~hould
 0pore!to: for-th .e betterment offile con~munity. I have.recently, b~en in discussion with the Burke
 Center teadersl!ip, and I wanted to share some 0~’~y condoms with you regarding Early
 Childhood Intervention (EC1) and acute care therapy rate reduoti0ns, "               "

         As HHSC implements, thecost sa.v.lng measures£~}und in Rider 50:otits bill pattern, I
would like to encourage you to consider the different obs~l~S Need by t~0S~:~n o~
eommtm~t~es, In our.m~a o£East Texas, we do not have ~e ple~ora of providers and options
that exist in our ~b~. and saburb~ eommunffies, O~ rural way of life also makes mass ~sit
mef~c~ent and unaffordable, and m many mst~ces ~ose m the ~eatest need require m home
~ea~en~ in order t0 r~~efv~.se~iees, In sh0~; if the B~k~ C.enter is not providing ~e.ne~ess~
S~Ces,m~y in E~t T~:S simply would have no other Options. Texas i~..requlred to provide. "
adequate access to seMe~ for MedioNd recipients, and I am concerned ~e eu~ent proposal
affedt access, possibly leaving ~e state out ofeampli~ee wl~ federal law,

        Due to other funding reductions in DARS bill pattern, the proposed therapy rate cuts
would, have a di~prop0rtiomt~e impact on Lhe Burke Ceriter’~ ECI program, Th~s pr0g~am has
been eXtrat~td~nar[ly s~ee~Ssful, an~ by using natlonally re.cognized assezSment~, this outcome-
b~sed pro~m-n has yMded exoepfionaI results for our region, As a former school board member,
I kn0wt!ie irrtlT0.r.~.an~e 0._.f the ECI progr~ and the long term benefits it provides to the children
of our ~iate. I tear thlS:.fundjng reduction, Coupled with the therapy rate cuts could cripple the
ECI program i~ our region, actually driving up other healtheare and education costs in our
community,
       I appreciate the hard work you do tbr Texas, and as a member of the House
Appropriations Committee, I ’also understand the lengths you go to provide the e~are our cidzens
need wlth!n the :confines of a limited budget, A~you impl~ment these cost saving measures, I
would respectfully request thatyou do not ~imply apply a e0olde-cutter mold to the entire state.

                   P.O. Box 2910 . At,.~r=s, ’rl:x~s 78768.2910
                    291"3 AT~mSO,~ , /,t’PRI.~. "rl{N^tl 75901 . (936)63,t.27(i2 ¯




                                                                                                     HHSC00002354_.00081
Each program is unique, and our. LMHAs experience disfinotive regional and local hurdles as
well, Please also consider the impacts of rate cuts across the entire spectrum, and take into "
consideration compounding effects, such as the situation with the Burke Center’s ECI program.
       ’ 1 appreciate your consideration of this request, Should you have any questions regarding
this issue, please do not hesitate to contact me or my Chief of Staff, Chris Kirby, at (512) 463-
0508,



                                           81neerely,.




                                          ] rent Ashby ~*""
                                      State Representative



       Susan Rushing
       CEO, Burke Center




                                                                                   HHSC00002354 00082
HHSC00006539
                                          September 10, 20~i5



 Andrew Stavitt
 Acting Administrator Centers for Medicare & Medicaid Services
 Department of Health and Human Services
 Hubert H. Humphrey Building, Room 445-G
 200 Independence Avenue, SW
 Washington, DC 20201

 Dear Acting Administrator Slavitt:

 As you know, there are over foul- million Medicaid recipients in the State of Texas, including a
 significant number of children that have an immediate issue facing them ~hat demands urgent
 attention.

Specifically, we are concerned that the severity of the rate reductions being proposed by the Texas
Health and Human Services Commission will have a devastating impact’on the ability of children
to access, medically necessary therapy services.

As background, the first of the rate reductions were scheduled to take effect September I, 20 I5
and are now scheduled to be implemented October :l, 2015. Rider 50 (c), H.B. % 80~ Texas
Legislature, directs the Texas Health and Human Services Commission to make $150 million worth
of reductions in generaI revenue over the FY 20 :l 6-2017 state biennium to Medicaid acute care
therapy services through a combination of rate reductions and policy changes.

It is our un derstanding that the state will have to submit a State Plan Amendment to the Centers
for Medicare and Medicaid Services ~CMS) to ’h~plementthe proposed rate reductions.

We would.urge CMS to car.efu!ty review any rate reductions to acute care fl~erapy, services
submitted by the Texas Health and Human Services Commission to ensure that the amount of rate
reductions and the methodology being employed by the state to implement rate reductions does
not restrict access to medically necessary therapy services, regardless of setting,

Thank you for your prompt attention to this matter,

                                             Sinqerely,




       Gene Green                                         ~Jba@in Castro
       Member of Congress
                                                          ~.e.~ber of Congress
      ’   ~’" ~" .~,’~#,l"~"..’~._
                           i,.:.~.~¢8.L.-~?&_.~

Eddie Bernice Jol~r<t~on
Member of Conga"~ss                               MemBer of Congress




Sheila                                            Ruben Hinojosa
Member of Congress                                Member of Congress




Hen:    :liar                                     Al:Greed
Mem :r of Congress                                Memb er o f Congress




Beto O’Rourke                                     Marl~’Veasey
Member of Congress                                Member of Congress




F:tl.m~bn Vela’
M~mt~er of Congress
                                       TEXAS HOUSE OF REPRESENTATIVES




 CAPITOL OFFICE:
                                                                                                                         DISTRICT OFFICE:
     P.O. BOX 2910
AUSTIN, TEXAS 78768-2910
                                                       JOHN OTTO                                                                ~0.   BOX 965
                                                                                                                         DAY~ON, TEXAS 77835
      $12M63-0570                                    STATE REPRESENTATIVE                                                       936-28B-813S
   FaX: 512-463.031s                                                                                                          FAX: 936-258-7190
                                                                 DISTRICT 18

         Executive Commissioner Chris Traylor
         Health and Human Services Commission
         4900 N. Lamar Blvd.
         Austin, Texas 78751


         September 10, 2015

        Dear Commissioner Traylor:

        As you know, the 84th Legislature passed.th.e..~....2,916-2017 General Appropriations Act (HB 1)
          urmg the leNslative session. HB 1 cont~8a~.~ Rider .50, which .       m.~aets, the Commission to
                    "
        "reform reimbursement                  ’::r-..~::. m::>..
                                  methodology ~t.o..-i.~,j!;m:~e   with industry, standards, policies, and
        utilization for acute care theraPY .~..
                                             Sd~’~’,k;’:~i~~’dludin
                                                       ~.S.--: ~.  g physical,. occupational,
                                                                                        "      and s eech
        therapies) whale considering stakeho!~< ~,’.~a)esS.to care."
                                                                            . . .
          ,e goal .9f this rider ~ 1o ~s~e.:X~,.-p,~yerqd~!I.~s .are .used efficiently and.. providers~ are
       .~dm~ursed at a rate simila~{:~to.:.4hd:’:~{o.,~erei:at. :~."m~kket and MedieVal-rates;:~f 0~er States,
       services,’          -:,-,"    . ,"-, .    ,     .     "         ,         ’   .       ,       ,.   . , o ¯   .,    ,

       :M.. ~g !~o:u.s..e);~era-.5av6 ,eaehe;d ~out-Tm-.,he::; C~ssion wi~ ~_e~f:4oneer:n;’: ,W.N.~h: I ’share,:



            . :........ ....                                               ,..       p           -. _"......

      network adequacy,!~:it ~iates {0 a¢cesg~b d~’~ls a eri{erio~i to maintain’~g~

      I.t is my belief the ianguage in Rider $0 gives the Commission the necessary flexibility to achieve
      certain rate reductions without jeopardizing access to care or compliance with federal law.

      Sincerely,




      Cc: Governor Greg Abbott                                                           Lt, Governor Dan Patrick
      Speaker of the House Joe Straus                                                    Senate Finance Chair Jane Nelson
      Members, Texas House of Representatives
                                    COMMITTEE ON HOUSE _A_PPKOPKtATIONS, CHAHK
                               REPRESENTING LIBERTY, SAN JAGINTO AND WALKE1K COUNTIES
                                                DI STRICT18.OTTO @FIOU S E.STATE,TY~US
      P,O, BOX 12068
      CAPITOL BUILDING
      AUSTIN, TEXAS 78711                                                                  FINANCE, CHAIR
      512/463-0112                                                                         SUNSETADVISORY COMMISSION, CHAIR
      FAX: 512/468-092~]                                                                   LEGISLATIVE AUDIT COMMITTEE
                                                                                           LEGISLATIVE[ BUDGI2Pl" BOARD
   DISTRICT OFFICE                                                                         STATE AFFAIRS
   1235 S, MAIN STREEt, SUITE 280
   GRAPEVINE~ TEXAS 76051
   8171424-3446
   F~X’, 8171488-6646
   E.MAlL: jane.nelson@senate.state.tx.us




                                                September 10, 2015



 Executive Commissioner Chris Traylor
 Health arid. Human Services Commission
 4900 N. Lamar Bird
 Austin, Texas 78751


 Dear Commissioner Traylor:

 I am writing to reiterate my strong support for the Health and Human Services Commission (HHSC) to follow ¯
 the LeNslature’s clear written instructions and intent that adjustments to Medicaid therapy rates proceed in a
 mamaer that preserves access to these important services.

Last year, an independent study conducted by rese~ehers at the Texas A&M School of Public Health concluded
that’Texas Medicaid rates for pediatric acute care therapy services are sigttificanfly higher than the Texas
commercial rate, commercial rates in other states, and MediCaid rates in other states. This is ha addition to
research conducted by HHSC that demonstrated similar findings.

As a result, the Legislature included HHSC Rider 50 in the 2016-17 General Appropriations Act, which directs
the Commission to reduce Medicaid pediatric acute care therapy rates to a more appropriate level. Rider 50
explicitly states that the Commission should consider access to care when implementing these rate
reductions. Furthermore, federal Iawreoub’es.that in setting Medicaid rates states must.preserve access to care.

We must re-align mtr rates to prevent tgxpayers from being overcharged for these services. However, we need
to move forward in a responsible manner that complies with Rider 50 and federal law. I believe, mad have
c6mmutticated to you, that the language in the rider gives the Commission the flexibility to phase-’m the rate
reduction to prevent any disruption in the delivery of these important services to children across the state.

Very truly yours,




Senator Jane Nelson

CC:        Governor Greg Abbott                     Speaker of the House Joe Straus
           Lieutenant Governor Dan Patrick          House Appropriations Committee Chairman John ~)tto
   911112015                                                   Quorum




      September 10, 2015        3:23_PM


      Speaker Straus puts ~SC on notice: The agency needs to tell
      lawmakers if cuts will harm access to.. care for disabled kids
      Straus says it is HHSC’s "responsibility to inform the Legislature if the proposed
      reductions would harm access to care and network adequacy."

      Speaker Joe Straus on Thursday afternoon posted this statement on Facebook:

     "My office has received a number of inquiries regarding proposed Medicaid rate reductions for acute
     care m~lJy se~wc~s. ~11e~ seiwices m’e crmcm~y important to many Texas families.

     The state is required to provide Medicaid recipients with the services for which they are qualified.
     The state is also committed to making sure that the Medicaid program is managed efficiently and that
     taxpayer dollars are used wisely.                                               ;

     Earlier this year, the LegisIature directed the Health and Human Services Commission to reform the
     acute care therapy reimbursement methodology to be in line with industry stanciards, policies and
     utilization. That realignment calls for a reduction of rates. The Legislature also directed IzII-ISC to get
    stakeholder input and to consider access to care, which includes network adequacy, as required by
    federal guidelines, when deciding how to implement those reductions.

    The Commission originally proposed reducing therapy rates by $50 mitlion per year for the next two
    years. My office was in regul.ar contact with the other members of the Legislature, the Commission,
    and pro~,iders of acute therapy services to ensure that sufficient access to services were maintained.
    HHSC also proposed a modified plan that I viewed as a reasonable compromise. However, before a
    final proposal could be considered, a court challenge was filed.

    That lawsuit has been dismissed, which means the agency will begin the process again by proposing
    new rates. I expect the Commission to keep us in compliance with federal law as it works through a
    new proposal. I also believe it is the agency’s responsibility to irffo~au the Legislature if the proposed
    reductions would harm access to care and network adequacy.

   I wiI1 continue to monitor this issue closely as HHSC considers how best to implement these
   reductions. It is important to me and many of my House co!leagues that I-!HSC implement these rate
   changes in a way that does not harm access to care."
http:llwww.quommreport.com/Subscfibers/Arficle.cfm?IID=24282                                                       112
 91! 1/20.I5                                                      Quorum Report: Article
                                                                                                           By Scott Braddo,:k



     lid 24282


          Copyright September 10, 2015, I-Iarvey Kronberg, www.quorumreport.com, All rights are reserved




http:/Iwww .quorumrepomcom/Subscribers/Ar tiele .cfm.OllD=24282                                                                 2/2
                                                                  Senator
                                                                    ¯     Craig Estes

                    September 14, 2015


                    Commissioner Chris Traylor: ,
                    Executive Commissioner, Health and Human Services Commission
                    Mail Code-4001, 4th Floor
                  ¯ 4900 North Lamer Blvd,
                  .Austin, TX 78751

                   Dear Commissioner Traylor,

                   Medicaid providers in my district have alerted me to serious concerns tl~at will result from
                   proposed rate cuts for acute care therapy providers, including physical, occupaV~onal and
                   speech therapists. It is my understanding that the Legislature directed Health and Human
                   Services ComraiSsio~ to implement Medicaid fundingre~U~ions and cost containment
                   strat~g~es.ir~:~HS.~Rider #~0; I hard :learned the eff6ct 0~the:proposed rate reductions, if
                   implemented as scheduled, may unintentionally limit access to care, particularly in rural
                   areas,

           ~ ~ ~:. Rider #S0 was meant to safeguard taxpayer dollars by directing those dollars be used
               ~:, efficiently and providers be reimbursed at a rate similar to the commercial market and
                  ¯ Medicaid rates of other states. As you know, commercial rates may be affected by
              ,-’"i~dditional factors including limits on utilization, coinsurance and copayments.

      ’,, .. ’ Pl.ease ensure HHSC gives full and due consideration to stakeholder proposals that have met
      ¯ :.’ . ):~h HH~C.toprovide:al~e~nafive strategies to achieve the S~vings required while.ensuring
       ¯ "" ,,!~;..":
                 :::. :~t,.. anyrate, efi~. do noth:a~ea.
                                                       . disr~ro~ortiona~e
                                                           ..........      share on access to se~ces for the Texans".
                                                                                                               ¯
     ¯ ’. ¯ :’~.k Who depend on these services in rural areas.                                     ~.

        :’. : :.~i ~ppr.eciate your consideration and thank you for your leadership of the Texas Health an~
           ~.~. .Hum,.a.n Services Commission. As always, please feel free to contact me if I may ever assist
                 you in any way.

                  Respec ~t~Yl      .~




  CAPITOL O~F~CE:
     ~,O. Box 12068               DENTON DISTRICT OFFICE:                     SI-~ RMAN DISTRICT OFI~ICJ]:
 A~Jetin~ Texas 78711               4401 NortI~ 1-35, Suite 202                  1117 GalJaghcr~ Su][e 340
      512-463-0130                    Denton Texss 76207                          8herm~, ~x~ 750~
  lAX: 512-463-8874              ¯.       940-898-0331                               903-86~2~7
Dial 711 for Relay C~lls                Yax~ 940.898-0926                           Fax: 903-868-9666
