                                                                                                     ACCEPTED
                                                                                                 03-15-00252-CV
                                                                                                         6432785
                                                                                      THIRD COURT OF APPEALS
                                                                                                 AUSTIN, TEXAS
                                                                                            8/10/2015 4:53:21 PM
                                                                                               JEFFREY D. KYLE
                                   No. 03-15-00252-CV                                                     CLERK


                             IN THE COURT OF APPEALS
                     FOR THE THIRD DISTRICT OF TEXAS AT AUSTIN
                                                                           FILED IN
                                                                    3rd COURT OF APPEALS
                           DR. BEHZAD NAZARI, D.D.S., ET AL.,           AUSTIN, TEXAS
                                                        Appellants, 8/10/2015 4:53:21 PM
                                         v.
                                                                      JEFFREY D. KYLE
                                                                            Clerk
                                   THE STATE OF TEXAS,
                                                              Appellee,
                                              v.

                XEROX CORPORATION, XEROX STATE HEALTHCARE, LLC
                       F/K/A ACS STATE HEALTHCARE, LLC,
                                                   Appellees.

           On Appeal from the 53rd Judicial District Court of Travis County, Texas,
                        Trial Court Cause No. D-1-GN-14-005380


                                 BRIEF OF APPELLEES

    BECK REDDEN LLP                                   BECK REDDEN LLP
       Eric J.R. Nichols                                 Constance H. Pfeiffer
       State Bar No. 14994900                            State Bar No. 24046627
       enichols@beckredden.com                           cpfeiffer@beckredden.com
       Gretchen Sween                                 1221 McKinney St., Ste. 4500
       State Bar No. 24041996                         Houston, TX 77010
       gsween@beckredden.com                          (713) 951-3700
       Christopher R. Cowan                           (713) 951-3720 (Fax)
       State Bar No. 24084975
       ccowan@beckredden.com
    515 Congress Ave., Ste. 1900
    Austin, TX 78701
    (512) 708-1000
    (512) 708-1002 (Fax)

    GIBSON, DUNN & CRUTCHER LLP                       KELLY HART & HALLMAN LLP
       Robert C. Walters                                 C. Andrew Weber
       State Bar No. 20820300                            State Bar No. 00797641
       rwalters@gibsondunn.com                           andrew.weber@kellyhart.com
    2100 McKinney Ave., Ste. 1100                        301 Congress, Ste. 2000
    Dallas, TX 75201                                  Austin, TX 78701
    (214) 698-3100                                    (512) 495-6451
    (214) 571-2900 (Fax)                              (512) 495-6930 (Fax)

                COUNSEL FOR APPELLEES, XEROX CORPORATION AND
         XEROX STATE HEALTHCARE, LLC, F/K/A ACS STATE HEALTHCARE, LLC

Oral Argument Requested
                                            TABLE OF CONTENTS
                                                                                                                   PAGE

TABLE OF CONTENTS ...................................................................................................i

INDEX OF AUTHORITIES.............................................................................................. ii

STATEMENT OF THE CASE ..........................................................................................iv

STATEMENT OF JURISDICTION ..................................................................................... v

ISSUE PRESENTED........................................................................................................ v

STATEMENT OF FACTS ................................................................................................. 1

SUMMARY OF ARGUMENT ........................................................................................... 8

ARGUMENT ................................................................................................................. 9

         I.        The Court Should Decide Xerox’s Original Proceeding
                   Along with this Appeal to Ensure that the Entire Litigation
                   Is Procedurally Consistent. .................................................................... 9

         II.       Counterclaims and Third-Party Claims May Be Brought
                   When the State Brings a TMFPA Claim. ............................................ 10

                   A.       The ordinary rules of civil procedure apply when the
                            State brings a TMFPA claim..................................................... 10

                   B.       Because the State has brought a tort claim for
                            damages, Chapter 33 applies and permits contribution
                            claims as well. ........................................................................... 12

         III.      Xerox Will Raise Immunity Arguments Once the Providers’
                   Claims Are Clearer. ............................................................................. 15

PRAYER FOR RELIEF .................................................................................................. 16

CERTIFICATE OF SERVICE .......................................................................................... 18

CERTIFICATE OF COMPLIANCE .................................................................................. 19
                                          INDEX OF AUTHORITIES

CASE                                                                                                           PAGE(S)

Janek v. Harlingen Family Dentistry, P.C.,
   451 S.W.3d 97 (Tex. App.—Austin
   2014, no pet.) ........................................................................................................ 4

U.S. ex rel. Miller v. Bill Harbert Intern. Const., Inc.,
   505 F. Supp. 2d 20 (D.D.C. 2007) ...................................................................... 13

Mortgages, Inc. v. U.S. Dist. Court for Dist. of Nev.,
  934 F.2d 209 (9th Cir. 1991) .............................................................................. 13

Reata Const. Corp. v. City of Dallas,
  197 S.W.3d 371 (Tex. 2006) .......................................................................passim

Rusk State Hosp. v. Black,
  392 S.W.3d 88 (Tex. 2012)................................................................................. 15

Sec. Trust Co. of Austin v. Lipscomb Cnty,
   180 S.W.2d 151 (Tex. 1944) .............................................................................. 12

Shipp v. Malouf,
   439 S.W.2d 432 (Tex. App.—Dallas
   2014, pet. denied).................................................................................................. 3

State v. Naylor,
   No. 11-0114, 2015 WL 3852284
   (Tex. June 19, 2015) .......................................................................................8, 11

Texas Dep’t of Corr. v. Herring,
   513 S.W.2d 6 (Tex. 1974)................................................................................... 11

Texas Mut. Ins. Co. v. Ruttiger,
   381 S.W.3d 430 (Tex. 2012) .............................................................................. 11

United States v. Campbell,
  No. CIV.A. 08-1951, 2011 WL 43013
  (D.N.J. Jan. 4, 2011) ........................................................................................... 13

Wortham v. Walker,
  128 S.W.2d 1138 (Tex. 1939)
  (orig. proceeding)................................................................................................ 12
                                                             ii
STATUTES
TEX. CIV. PRAC. & REM. CODE § 33.002(a)(1) ......................................................... 14

TEX. HUM. RES. CODE
  § 36.002 ................................................................................................................. 4
  § 36.007............................................................................................................. 4, 5
  § 36.052................................................................................................................. 4

OTHER AUTHORITIES
25 TEX. ADMIN. CODE § 33.71 (2015) ................................................................... 2, 3




                                                             iii
                            STATEMENT OF THE CASE


Nature of the case         This is a civil Medicaid fraud case brought by the State
                           of Texas against orthodontic-service providers.

                           The providers have brought counterclaims against the
                           State and third-party claims against Xerox.

                           In this lawsuit, the State has sued only the providers.
                           Although the State’s fraud theory alleges intertwined
                           claims against the providers and Xerox, the State is suing
                           Xerox in a separate lawsuit, seeking to recoup from
                           Xerox payments the State made to the providers.

Trial court                Honorable Stephen Yelenosky
                           345th Judicial District Court of Travis County


Trial court disposition:   The trial court ruled that counterclaims and third-party
                           claims cannot be brought in a suit brought under the
                           Medicaid fraud statute. Thus, the trial court:

                              (1) granted the State’s plea to the jurisdiction and
                                  dismissed the claims against the State with
                                  prejudice and

                              (2) granted the State’s motion to dismiss third-party
                                  claims against Xerox. Tab A.




                                          iv
                        STATEMENT OF JURISDICTION

      This Court has jurisdiction under TEX. CIV. PRAC. & REM. CODE §

51.014(a)(8).



                              ISSUE PRESENTED

      Did the trial court err by dismissing the Dental Group’s third-party claims

against Xerox?




                                       v
                             STATEMENT OF FACTS

      This fraud suit is brought by the State of Texas against Medicaid providers.

It is factually intertwined with a separate fraud suit the State has brought against

two Xerox entities. The State simultaneously accuses Medicaid providers and

Xerox of a fraudulent scheme, yet it contends it can take a divide-and-conquer

approach and seek double recovery by suing them in separate lawsuits.

      Although Xerox benefits from the State’s argument that the trial court

adopted in this case, Xerox does not agree with it. There is no prohibition against

counterclaims and third-party claims in a Texas Medicaid fraud suit. Because the

order under review assumes there is, Xerox agrees that it is erroneous.

      The Dental Group’s statement of facts accurately sets forth the procedural

background of this case. This statement of facts provides additional context for the

broader landscape of this litigation and a related proceeding before this Court.

               HHSC contracts for processing of Medicaid claims

      The Texas Health and Human Services Commission oversees the Texas

Medicaid program, which serves low-income Texans. The program includes a

process for reimbursing providers for the services provided to eligible children.

      HHSC has in recent years hired contractors to assist it in claims processing.

During the time period from 2004 to 2014, HHSC contracted with a private entity

to be its fiscal agent and claims processor. Tab B at 30. That entity was later

acquired by Xerox Corporation. Id. at 2.
       Long known as a brand name for copiers, Xerox now has a business division

that provides analytic, consulting, revenue improvement, technological, and

business process outsourcing solutions to the healthcare industry worldwide. The

Xerox entity that contracted with HHSC is Xerox State Healthcare, LLC. Id.1

       HHSC contracted with Xerox State Healthcare to provide multiple Medicaid

administrative and technical services, including the processing of “prior

authorizations” for orthodontic services submitted by the providers. Id. at 3. The

“prior authorization” process requires providers to submit forms, materials, and

certifications related to the provider’s diagnosis and the patient’s condition in order

to receive prior approval for the orthodontic services.              Instead of performing

services first and then submitting the bill for payment, Medicaid “[o]rthodontic

services must be prior authorized” before the provider performs the service.

25 TEX. ADMIN. CODE § 33.71 (2015).

       Under the contract, Xerox State Healthcare established the Texas Medicaid

& Healthcare Partnership (TMHP), a consortium of Xerox State Healthcare and

other subcontractors.         TMHP processed hundreds of thousands of prior-

authorization requests for orthodontic services over the span of a decade. During

that time period, the State alleges that it spent approximately $1.1 billion for

orthodontic services to Medicaid-eligible children. Tab B at 3.
1
   HHSC first contracted with ACS State Healthcare LLC, which changed its name to Xerox
State Healthcare, LLC after it was acquired by Xerox Corporation. Tab B at 2. Xerox
Corporation and Xerox State Healthcare, LLC are distinct entities with separate legal arguments;
references to them jointly as “Xerox” are solely for ease of reading.
                                               2
       HHSC approved the contract and prior authorization policies under which

TMHP operated, and it oversaw the work of Xerox State Healthcare (and the other

TMHP contractors).          Tab C.2       In fact, HHSC’s Office of Inspector General

conducted a full contract audit of the prior authorization process, and the results

were made public in a 2008 report. Id. Xerox State Healthcare continued to

perform under its contract until May 2014, when the State terminated the contract.

                   Negative publicity prompts the State to cast blame

       As the Dental Group explained, there has been a great deal of negative

publicity about HHSC and the State’s spending on Medicaid orthodontic services.

See Dental Group Br. 2-3; see also Shipp v. Malouf, 439 S.W.2d 432, 437–38 (Tex.

App.—Dallas 2014, pet. denied) (discussing publicity about Medicaid provider).

A series of “investigative” news reports in 2011 raised questions about the State’s

spending on orthodontic services to Medicaid-eligible children and about the

medical judgments of orthodontic providers, causing HHSC to second-guess that

spending and begin casting blame on others.

       HHSC’s Office of Inspector General, led by a now-departed deputy, made

sweeping pronouncements of a vast fraud against the Medicaid program by

orthodontic providers across the State. HHSC then filed separate administrative

proceedings against members of the Dental Group. See Dental Group Br. 1.


2
   The 2008 audit report is publicly available at http://www.tdmr.org/texas-state-audit-report.
It is not yet filed as evidence in this case but is cited merely as an uncontested background fact.
                                                 3
       Meanwhile, Xerox State Healthcare continued to perform under its contract

with HHSC. After all, HHSC had approved the contract and prior authorization

policies under which TMHP operated, and it continued to oversee the work of

Xerox State Healthcare (and the other TMHP contractors). Tab B at 19-20.

       As HHSC received adverse findings and results in the administrative

proceedings against the providers,3 the State ultimately turned on Xerox and filed

suit in Travis County against two Xerox entities in May 2014. Tab B. The State

accused Xerox of failing to “catch” the providers’ alleged fraud through the prior

authorization process. Rather than suing for breach of the prior authorization

procedures set by the State in the HHSC contract, the State brought a single tort

claim under the Texas Medicaid Fraud Prevention Act (“TMFPA”).

       The    TMFPA       defines    “unlawful      acts,”   beginning     with    knowing

misrepresentations and nondisclosures. See TEX. HUM. RES. CODE § 36.002.

       It also provides for substantial civil remedies. A person who commits an

“unlawful act” can be sued for the amount of payments made “as a result of the

unlawful act,” plus double damages, civil penalties for each unlawful act between

$5,500 and $15,000, prejudgment interest, and reimbursement of the State’s

reasonable attorneys’ fees, expenses, and costs. See id. §§ 36.052, 36.007.




3
  See, e.g., Janek v. Harlingen Family Dentistry, P.C., 451 S.W.3d 97 (Tex. App.—Austin 2014,
no pet.).
                                              4
                       The State seeks the same recovery
                from Xerox and the providers in separate lawsuits

      The State’s suit against Xerox seeks “all relief possible” under the TMFPA.

Tab B at 21. This relief even includes the value of payments made under the

Medicaid program to the Medicaid orthodontic-service providers—not to Xerox.

Id.   The State’s administrative proceedings against various providers sought

recovery of the same payments.

      Several providers then filed four separate suits against Xerox and the State.

See CR47 n.2.4 The State filed a plea to the jurisdiction, which the trial court

granted. CR67. Those providers suits are now pending solely against Xerox.

      Several other providers intervened in the State’s suit against Xerox, asserting

common-law tort claims against the State and Xerox and seeking to recover for

losses incurred as a result of payment holds and administrative claims that the

providers contend the State wrongfully asserted. Tab D. The State moved to

strike the intervention, and its motion was granted. CR69-78 (motion to strike);

CR61-62 (order in State v. Xerox suit).

      Meanwhile, in December 2014, the State nonsuited its administrative cases

against the Dental Group and filed this suit the next day. Just like the suit against

Xerox, the State has sued the Dental Group solely under the TMFPA.


4
  Harlingen Family Dentistry v. ACS State Healthcare, LLC, Cause No. D-1-GN-14-000319;
Antoine Dental Center v. ACS, No. D-1-GN-14-000320; M&M et al. v. ACS, D-1-GN-14-
000321; and Dr. Paul Dunn v. ACS, No. D-1-GN-14-000322.
                                          5
      In this suit, the Dental Group answered the State’s TMFPA claim and

asserted counterclaims and third-party claims against Xerox. CR29. Xerox filed a

general denial but has not yet asserted affirmative defenses or filed any motions.

Tab E. The State answered and simultaneously asserted a plea to the jurisdiction,

plea in bar, and a motion to dismiss the third-party claims. CR43.

      The State maintains in both of its fraud suits that it can exclude any party

that it has chosen not to name in that suit—even while it seeks the same damages

against the excluded party elsewhere. It contends that counterclaims against the

State and third-party claims against parties who may share responsibility for any

damages are not permissible. Thus, while the State resists the counterclaims and

third-party claims in this suit, it is simultaneously arguing that Xerox cannot file

third-party claims against the providers in the State v. Xerox suit. CR69-109. The

State further argues that Chapter 33 does not apply, such that Xerox could not even

designate the providers as responsible third parties. CR91-108.

       The trial court agrees with the State in both lawsuits and dismisses
          all counterclaims, third-party claims, and RTP designations

      The various lawsuits between the State, Medicaid providers, and the Xerox

entities have all been specially assigned, through the Travis County district court

administrative process, to one district judge. The trial court was made aware that

the State is seeking the same damages against separate parties in separate lawsuits

based on factually related allegations.

                                          6
      Yet the trial court decided that the State divide-and-conquer approach is

permissible. In the State’s suit against Xerox, the trial court struck the providers’

petitions in intervention. CR61-62. It twice denied motions to consolidate the

various lawsuits. CR286-92. It struck Xerox’s third-party contribution claims

against the providers.    CR294.     And it denied Xerox’s motion for leave to

designate the providers as responsible third parties. CR381-82. The last two

rulings are pending before this Court in an original proceeding. See Cause No. 03-

15-00401-CV (filed 7/1/15).

      In this suit, the trial court reached the same result by granting the State’s

plea to the jurisdiction and dismissing the counterclaims, as well as granting the

State’s motion to dismiss the Dental Group’s third-party claims against Xerox.

Tab A.     The order in this suit made plain that the trial court’s rationale is

consistent with the rulings in the State’s suit against Xerox:

      Consistent with this Court’s rulings in the State’s litigation against
      Xerox, the Court finds that the State is entitled to bring this action
      against defendants to the exclusion of other parties.

Tab A; see also CR65 (Court letter to counsel: “The State is entitled to pursue a

Medicaid Fraud claim against a defendant to the exclusion of all other parties[.]”).

      While the premise underlying the trial court’s rulings in both proceedings is

consistent, the differing postures require different analyses. Xerox responds to the

part of the order that grants the State’s motion to dismiss third-party claims.

CR383-84.
                                          7
                            SUMMARY OF ARGUMENT

      I.     The Court should decide the issue presented in Xerox’s original

proceeding along with the issues presented in this appeal. The causes are on a

parallel track; the issues are closely related; and it will promote fairness and

efficiency to ensure the issues are all decided now. The trial court’s rulings have

resulted in multiple skewed lawsuits.      Deciding related issues in the separate

lawsuits together will assist the Court’s decisional process and ensure that it

understands how its holdings affect the entire litigation landscape.

      II.    When the State sues, it must generally abide by the same rules that

apply to private litigants. The Texas Supreme Court recently reaffirmed this rule.

See State v. Naylor, No. 11-0114, 2015 WL 3852284, at *6 (Tex. June 19, 2015).

This settled rule is equally true when the State brings a TMFPA claim, because

nothing in the TMFPA prohibits counterclaims or third-party claims.

      III.   The State has asserted sovereign immunity arguments on Xerox’s

behalf, and Xerox would welcome an affirmance on that ground. But if the

claims against Xerox are reinstated, Xerox may assert immunity arguments

on its own behalf at a later date, once the Dental Group’s claims are clearer.

Any holding that the State has waived immunity should not implicate Xerox,

because Xerox has not asserted its own claims for affirmative relief. See

Reata Const. Corp. v. City of Dallas, 197 S.W.3d 371, 377 (Tex. 2006).

                                          8
                                    ARGUMENT

I.    The Court Should Decide Xerox’s Original Proceeding Along with this
      Appeal to Ensure that the Entire Litigation Is Procedurally Consistent.

      Before turning to the merits, it bears emphasis that the issues in this appeal

are closely related to the issue presented in Xerox’s original proceeding, which is

currently pending in this Court.      See Cause No. 03-15-00401-CV.           In that

proceeding, Xerox challenges orders striking its third-party claims against the

providers and denying it leave to designate providers as responsible third parties.

Xerox argues in that proceeding that Chapter 33 applies to the State’s fraud claim

for damages and thus permits it to bring third-party claims for contribution and to

designate responsible third parties. Because the two causes are on virtually parallel

tracks with nearly identical briefing schedules, it would be appropriate for the

Court to decide them together.

      Further, it would promote efficiency and ensure fairness in this entire

landscape of litigation for the Court to decide all the issues presented by the Dental

Group and Xerox together. While the issues in each cause are interrelated, they are

not identical. Considering all the issues together would therefore assist the Court

in understanding all the consequences of its holdings for all of the State’s lawsuits.

The trial court’s rulings have resulted in a multiplicity of lawsuits that are

procedurally skewed in the State’s favor.       The due process rights of all the

defendants hinge on correcting these errors now.

                                          9
II.   Counterclaims and Third-Party Claims May Be Brought When the
      State Brings a TMFPA Claim.

      The threshold issue presented by this appeal is whether the State has waived

sovereign immunity. Xerox agrees that the governing standard for waiver is set by

Reata Const. Corp. v. City of Dallas, 197 S.W.3d 371, 377 (Tex. 2006). The State

has asserted an affirmative claim for monetary relief and therefore “must

participate in the litigation process as an ordinary litigant.” Id. To the extent the

Dental Providers show that their counterclaims satisfy the standard set forth in

Reata, they should be allowed to bring them. Xerox takes no position on whether

the Dental Group has met that burden.

      The State has argued that Reata does not apply because its claim under the

TMFPA is an “enforcement action.” CR48. Xerox does take a position with

respect to this conclusory assertion, which is the foundation for all of the State’s

arguments—including its position that third-party claims may not be brought in a

suit under the TMFPA. Xerox agrees with the Dental Group that when the State

brings a TMFPA claim, it is like any litigant subject to the rules of civil procedure.

      A.     The ordinary rules of civil procedure apply when the State brings
             a TMFPA claim.

      The State has never presented any authority for its assertion that a TMFPA

claim is an “enforcement action” that somehow trumps the rules of procedure

related to counterclaims and third-party claims. Yet the trial court agreed with this



                                          10
argument in the State v. Xerox suit and presumably agreed with it here. CR297

(premising ruling on characterization of State’s suit as an “enforcement action”).

      There is no basis for displacing these rules of civil procedure when the State

brings suit under the TMFPA. It is immaterial whether the State calls its suit an

“enforcement action” or simply a tort suit for damages. The label is irrelevant to

the legal analysis.

      The TMFPA does not address third-party claims or counterclaims, and there

is no basis to infer from the Legislature’s silence that it intended to displace the

ordinary rules of procedure. Where statutes are silent on an issue, courts “presume

the silence is a careful, purposeful, and deliberate choice.” See Texas Mut. Ins. Co.

v. Ruttiger, 381 S.W.3d 430, 453 (Tex. 2012).

      Absent any statutory directive in the TMFPA itself, the controlling rules are

the same rules that apply to ordinary litigants. The Texas Supreme Court recently

reaffirmed that these rules apply equally to the State when it becomes a litigant:

“where the Legislature has given no indication to the contrary the State must abide

by the same rules to which private litigants are beholden.” State v. Naylor, No. 11-

0114, 2015 WL 3852284, at *6 (Tex. June 19, 2015). “As a general rule, the State

litigates as any other party in Texas courts.” Texas Dep’t of Corr. v. Herring, 513

S.W.2d 6, 7 (Tex. 1974).




                                         11
      This principle is settled:

      [W]hen a State enters the Courts as a litigant, it must be held subject
      to the same rules that govern the other litigants, and abide the
      consequences of the suit . . . . When a state appears as a party to a
      suit, she voluntarily casts off the robes of her sovereignty, and stands
      before the bar of a court of her own creation in the same attitude as an
      individual litigant; and her rights are determined and fixed by the
      same principles of law and equity . . . .

Wortham v. Walker, 128 S.W.2d 1138, 1145–46 (Tex. 1939) (orig. proceeding)

(internal quotation marks omitted); accord Reata, 197 S.W.3d at 377 (“Once it

asserts affirmative claims for monetary recovery, the City must participate in the

litigation process as an ordinary litigant . . . .”); Sec. Trust Co. of Austin v.

Lipscomb Cnty, 180 S.W.2d 151, 159 (Tex. 1944) (“When the state becomes a

party to a suit it is subject to the same rules that govern other parties . . . .”). These

rules likewise apply here.

      B.     Because the State has brought a tort claim for damages, Chapter
             33 applies and permits contribution claims as well.

      The Dental Group has set forth the correct analysis about counterclaims and

third-party claims generally, but their analogy to the False Claims Act goes too far.

Specifically, because contribution claims are not permitted in federal cases under

the False Claims Act, the Dental Group incorrectly assumes that they are likewise

unavailable under Texas law.         This assumption is incorrect.         Chapter 33’s

contribution scheme under the Texas Civil Practice and Remedies Code is the

controlling law in state court.


                                           12
       Federal law has no analogue to the Texas contribution scheme in Chapter 33.

Instead, federal law provides a right to contribution or indemnity only in limited

circumstances:

       A defendant held liable under a federal statute has a right to
       contribution or indemnification from another who has also violated
       the statute only if such right arises (1) through the affirmative creation
       of a right of action by Congress, either expressly or implicitly, or (2)
       via the power of the courts to formulate federal common law.

Mortgages, Inc. v. U.S. Dist. Court for Dist. of Nev., 934 F.2d 209, 212 (9th Cir.

1991) (citing Texas Indus., Inc. v. Radcliff Materials, 451 U.S. 630, 638 (1981);

Northwest Airlines v. Transport Workers Union of Am., 451 U.S. 77, 90–91

(1981)).

       The False Claims Act does not contain an express or implied right to

contribution, and over the last quarter century, federal courts have uniformly

refused to create such a right as a matter of federal common law. See Mortgages,

934 F.2d at 212 (“We decline, therefore, to formulate federal common law on this

basis.”).5   The federal rule—that contribution and indemnification claims are

unavailable under the False Claims Act—prohibits all claims (no matter how

styled) that are in substance claims for contribution or indemnity. If the instant

case were a False Claims Act case in federal court, there is no doubt this rule

would apply.


5
 See, e.g., United States v. Campbell, No. CIV.A. 08-1951, 2011 WL 43013, at *10 (D.N.J. Jan.
4, 2011) (citing Mortgages, Inc. v. U.S. Dist. Court of Nev., 934 F.2d 209 (9th Cir. 1991)); U.S.
ex rel. Miller v. Bill Harbert Intern. Const., Inc., 505 F. Supp. 2d 20, 25 (D.D.C. 2007) (same).
                                               13
      The Dental Group relies on this federal framework, arguing that their claims

do not sound in contribution and would therefore not be barred by the False Claims

Act. This may be true, but it is irrelevant to whether their claims are permissible in

a Texas court under the TMFPA. In this case, the controlling legal framework for

contribution claims is found in Chapter 33. Analogizing to the False Claims Act is

helpful in many respects, but not where conflicting state law controls the issue.

Xerox therefore disagrees with any suggestion in the Dental Group’s arguments

that contribution claims cannot be brought in a TMFPA suit. See Dental Group Br.

20-21 (counterclaims), 29-32 (third-party claims).

      Xerox’s mandamus petition fully sets forth the analysis for why a TMFPA

claim is a “cause of action based on tort,” and thus is governed by Chapter 33.

TEX. CIV. PRAC. & REM. CODE § 33.002(a)(1). In short, the State’s claim is merely

a statutory fraud claim seeking to recover damages, so it is subject to Chapter 33’s

proportionate responsibility and contribution schemes.

      Rather than fully briefing this argument here, Xerox incorporates it by

reference. Tab F. It would be more appropriate to decide that issue in Xerox’s

original proceeding, where the issue will be fully joined by the State.

      So long as the Dental Group is conceding that none of its claims sounds in

contribution, the Court need not decide whether Chapter 33 applies in this appeal.

The Court could narrowly hold that the Dental Group’s claims are permissible on

their own terms—regardless of whether contribution claims are permissible.
                                         14
III.   Xerox Will Raise Immunity Arguments Once the Providers’ Claims Are
       Clearer.

       Xerox has not yet filed a plea to the jurisdiction or raised an affirmative

defense of immunity.     Instead, the State raised immunity on Xerox’s behalf.

CR54-57. While Xerox would welcome an affirmance on this basis (rather than on

the incorrect premise that the TMFPA prohibits third-party claims), it leaves it to

the State to assert those arguments. For now, Xerox addresses the issue simply to

clarify that it would be premature to hold that Xerox does not have an immunity

defense.

       Xerox can and likely will raise immunity arguments in the trial court if the

claims against it are reinstated. There is no deadline or risk of waiver, because

sovereign immunity implicates subject-matter jurisdiction and can be raised at any

time. See Rusk State Hosp. v. Black, 392 S.W.3d 88, 95 (Tex. 2012) (defense of

governmental immunity is jurisdictional and can be raised for first time on appeal).

Xerox may well benefit from sovereign immunity as to acts taken as a contractor

for the State. Likewise, official immunity is an affirmative defense, which Xerox

can still plead.

       Any holding in this appeal about waiver of sovereign immunity under Reata

should be limited to the State, because Xerox has not asserted any affirmative

claims for relief. Reata holds that an entity waives immunity from affirmative

damage claims brought against it as an offset by asserting its own affirmative

                                        15
claims for monetary relief. Reata, 197 S.W.3d at 377. Under Reata, parties sued

by the government may “assert, as an offset, claims germane to, connected with,

and properly defensive to those asserted by the governmental entity.” Id. Because

Xerox has not brought any claims in this case, none of the Dental Group’s claims

against Xerox satisfies the Reata waiver standard.

                               PRAYER FOR RELIEF

      The Court should either affirm the order on immunity grounds or reverse the

trial court’s order. The Court should not allow the order to stand on the basis of an

interpretation of Texas law that imposes a blanket prohibition on counterclaims

and third-party claims when the State brings suit under the TMFPA.




                                         16
                                 Respectfully submitted,

By: /s/ Eric J.R. Nichols        By: /s/ Constance H. Pfeiffer
   Eric J.R. Nichols                Constance H. Pfeiffer
   State Bar No. 14994900           State Bar No. 24046627
   enichols@beckredden.com          cpfeiffer@beckredden.com
   Christopher R. Cowan          BECK REDDEN LLP
   State Bar No. 24084975        1221 McKinney St., Ste. 4500
   ccowan@beckredden.com         Houston, TX 77010
BECK REDDEN LLP                  (713) 951-3700
515 Congress Ave., Ste. 1900     (713) 951-3720
Austin, TX 78701
(512) 708-1000
(512) 708-1002 (Fax)

   Robert C. Walters                C. Andrew Weber
   State Bar No. 20820300           State Bar No. 00797641
   RWalters@gibsondunn.com          andrew.weber@kellyhart.com
GIBSON, DUNN & CRUTCHER LLP      KELLY HART & HALLMAN LLP
2100 McKinney Ave., Ste. 1100    301 Congress, Ste. 2000
Dallas, TX 75201                 Austin, TX 78701
(214) 698-3100                   (512) 495-6451
(214) 571-2900 (Fax)             (512) 495-6930 (Fax)

     COUNSEL FOR APPELLEES, XEROX CORPORATION AND XEROX STATE
        HEALTHCARE, LLC, F/K/A ACS STATE HEALTHCARE, LLC




                                17
                           CERTIFICATE OF SERVICE

      I hereby certify that on August 10, 2015, a true and correct copy of the
above and foregoing Brief of Appellees was forwarded to all counsel of record by
the Electronic Service Provider, if registered, otherwise by email, and to
Respondent, by hand delivery, as follows:

                             Counsel for Appellants:

               Jason Ray                                 E. Hart Green
      Riggs, Aleshire & Ray, P.C.           Weller, Green, Toups & Terrell, L.L.P.
        700 Lavaca, Suite 920                        Post Office Box 350
          Austin, TX 78701                       Beaumont, TX 77704-0350
           jray@r-alaw.com                           hartgr@wgttlaw.com

                      Counsel for Appellee State of Texas:
         J. Campbell Barker                              Philip A. Lionberger
      Deputy Solicitor General                       Assistant Solicitor General
    Office of the Attorney General                  Office of the Attorney General
     P.O. Box 12548 (MC 059)                         P.O. Box 12548 (MC 059)
       Austin, TX 78711-2548                           Austin, TX 78771-2548
   Cam.Barker@texasattorneygeneral.gov          Philip.Lionberger@texasattorneygeneral.gov

           Raymond Winter                                Reynolds Brissenden
 Chief, Civil Medicaid Fraud Division                Assistant Attorney General
    Office of the Attorney General                  Office of the Attorney General
           P.O. Box 12548                                  P.O. Box 12548
        Austin, TX 78711-2548                          Austin, TX 78711-2548
 raymond.winter@texasattorneygeneral.gov    reynolds.brissenden@texasattorneygeneral.gov




                                           By: /s/ Constance H. Pfeiffer
                                               Constance H. Pfeiffer




                                           18
                       CERTIFICATE OF COMPLIANCE

       1.   This brief complies with the type-volume limitation of
Tex. R. App. P. 9.4 because it contains 3,843 words, excluding the parts of the
brief exempted by Tex. R. App. P. 9.4(i)(2).

      2.    This brief complies with the typeface requirements of Tex. R. App. P.
9.4(e) because it has been prepared in a proportionally spaced typeface using
Microsoft Word 2007 in 14 point Times New Roman font.

      Dated: August 10, 2015.


                                        /s/ Constance H. Pfeiffer
                                        Constance H. Pfeiffer
                                        Counsel for Appellees




                                       19
                              No. 03-15-00252-CV

                        IN THE COURT OF APPEALS
                FOR THE THIRD DISTRICT OF TEXAS AT AUSTIN

                      DR. BEHZAD NAZARI, D.D.S., ET AL.,
                                                   Appellants,
                                    v.

                              THE STATE OF TEXAS,
                                                         Appellee,
                                         v.

           XEROX CORPORATION, XEROX STATE HEALTHCARE, LLC
                  F/K/A ACS STATE HEALTHCARE, LLC,
                                              Appellees.

      On Appeal from the 53rd Judicial District Court of Travis County, Texas,
                   Trial Court Cause No. D-1-GN-14-005380


                               APPENDIX TO
                            BRIEF OF APPELLEES


TAB

A     Order Granting State’s Plea to the Jurisdiction and
      Motion to Dismiss Third Party Claims

B     Plaintiff’s Original Petition in Cause No. D-1-GV-14-000581

C     Office of Inspector General Report dated August 29, 2008

D     Providers’ Plea in Interventions in Cause No. D-1-GV-14-000581

E     Xerox’s Original Answer to Defendants’ Original Third Party Petition

F     Xerox Corporation and Xerox State Healthcare, LLC f/k/a
      ACS State Healthcare, LLC’s Mandamus Petition
               Tab A
Order Granting State’s Plea to the Jurisdiction
 and Motion to Dismiss Third Party Claims
                                     DC          BK1 5120 PG81
                                                                            Filed in The Distric~ Court
                                                                             of Travis County, texas
                                                                                                             µ-
                             CAUSE NO. D-1-GN-14-005380                     At _ _--41.....:.....!::==--4-F-..__M .
                                                                             Velv a L. Pri


THE STATE OF TEXAS                        §        IN THE DISTRICT COURT OF
                                          §
             Plaintiff,                   §
                                          §
v.                                        §
                                          §
DR. BEHZAD NAZARI, D.D.S.                 §        TRAVIS COUNTY, TEXAS
D/B/A ANTOINE DENTAL                      §
CENTER, DR. BEHZAD NAZARI,                §
DR. WAEL KANAAN,                          §
HARLINGEN FAMILY                          §
DENTISTRY, P.C., NIKIA,                   §
PRACTICAL BUSINESS                        §
SOLUTIONS, SERIES LLC, JUAN               §
D. VILLAREAL D.D.S., SERIES,              §
PLLC D/B/A HARLINGEN                      §
FAMILY DENTISTRY GROUP,                   §
DR. JUAN VILLAREAL, DR.                   §
VIVIAN TEEGARDIN, RICHARD                 §
F. HERRSCHER, D.D.S., M.S.D.,             §
P.C., DR. RICHARD F.                      §
HERRSCHER, M & M                          §
ORTHODONTICS, PA, DR. SCOTT               §
MALONE, DR. DIANA MALONE,                 §
MICHELLE SMITH, NATIONAL                  §
ORTHODONTIX, MGMT, PLLC,                  §
DR. JOHN VONDRAK, RGV                     §
SMILES BY ROCKY L. SALINAS,               §
D.D.S. PA, AND DR. ROCKY                  §
SALINAS                                   §       53RD JUDICIAL DISTRICT
                                          §
             Defendants.                  §


            ORDER GRANTING STATE'S PLEA TO THE JURISDICTION
               AND MOTION TO DISMISS THIRD PARTY CLAIMS

      On April 15, 2015, the Court heard the State of Texas's Plea to the Jurisdiction, Plea

in Bar and Motion to Dismiss Third Party Claims, filed on January 20, 2015. All parties

appeared through their respective counsel and announced ready.
            Case# D-1-GN-14-005380

            1~~m~m~m~m~u~M~M~w~w1a~
            004002256
                                                                                                           383
                                      DC            BK15120 PG82
r          b~ \-tlN- l tf- 00?3 go
              ~&9 (?.; i of 2-
          Having considered the Pleas, Motion, response briefs, and arguments of counsel,

    the Court ORDERS that the State of Texas's Plea to the Jurisdiction is GRANTED.

    Defendants' counterclaims against the State are DISMISSED with prejudice. The Court

    further ORDERS that the State of Texas' s Motion to Dismiss Third Party Claims is also

    GRANTED. Consistent with this Court's rulings in the State' s litigation against Xerox,

    the Court finds that the State is entitled to bring this action against defendants to the

    exclusion of other parties. Defendants' third party claims against Xerox are DISMISSED.


                                                                       J-h   A~
                                                   Signed this.{li day of~' 2015
                                                                                  I




                                                   Jud~J'h;;lle{osky l
                                                                   I




                                                                                           2


                                                                                                384
                     Tab B
Plaintiff’s Original Petition in Cause No. D-1-GV-14-000581
                                                                           5/9/20141:05:46 PM
                                                                                Amalia Rodriguez-Mendoza
                                                                                             District Clerk
                                               D-1-GV-14-000581                              Travis County
                                   CAUSE NO.   ~-------
                                                                                          D-1-GV-14-000581


THE STATE OF TEXAS,                                    IN THE DISTRICT COURT

                 PJaintiff,

v.
                                                      53 RD JUDICIAL DISTRICT
XEROX CORPORATION; XEROX STATE
HEALTHCARE,LLC;ACSSTATE
HEALTHCARE, LLC, A XEROX
CORPORATION,

                 Defendants                            TRAVIS COUNTY, TEXAS


                               PLAINTIFF·' S ORIGINAL PETITION

        The State of Texas. by and through the Attorney General of Texas, Greg Abbott, brings

this law enforcement action pursuant to the Texas Medicaid Fraud Prevention Act, ("TMFP A"),

TEX. HUM. RES. CODE ANN. chapter 36. The State would show the Court:

                              I.     DISCOVERY CONTROL PLAN

        L       Plaintiffs designate this case as a Level 3 case requiring a discovery control p lan

tailored to the circumstances of 1he specific suit.

                                      TI.     THE PARTIES

       2.     Plaintiff is the State of Texas, by and through the Attorney General of Texas

("Texas" or "the State").

       3.     Defendant Xerox Corporation is a corporation organized under the laws of New

York and may be served with process upon its registered agent, Prentice Hall Corporation, 211

E. 7111 Street, Suite 620, Au~ Texas 78701-3218. Defendant Xerox State Health Care, LLC, is

a whoIIy-owned subsidiary of Xerox Corporation organized under the laws of the State of

Delaware with Texas offices at 2828 N. Haskell Ave., Dallas, Texas 75204, and may be served

with process upon its registered agent, CSC-Lawyers Incorporating Service Company, 211 E. 71h
Street, Suite 620. Austin. Te~as 78701-3218. Dt:fom.lattl ACS Healthcare, LLC. a Xcmx

Corporation, is a wholly-owned subsidiary of Xerox Corporation organized under the laws of the

State of Delaware with its Texas otlices ai 2828 N. I IaskeH Ave., Dallas, Texas 75204 1 and may

be served with process upon ils registered agent, CSC-Lawye.rs lncorpQrating Service Company.

70 I Brazos Street. Suite l 050, Austltl, Texas 7870 I. Defendant Xerox Corporation acquired

Defendant ACS in 2010. On info11nation and belief, ACS State Healthcare, LLC, changed its

name to Xerox State Healthcare. LLC, on April 1. 2012. Defendants are referred tu hereatter as

"Xerox.··

                             Ul.     JURISDICTION ANO VENUE

        4.    This Court has subject-matter jurisdiction over this action pursu~mt to section

.36.052(d) of the TMFPA, which provides statutory rerncdi~s to redress the conduct of

Defendants. The TMFP A provides authority for this action to be brought by the Attorney

General. Tex. Hum. Res. Code §§ 36.052. 36. 102. Jurisdiction is further proper     be.cause the
amounts sought from each Dcfondtint arc in exce~ of the minimum jurisdictional limits of this

Coun.
        5.    This Court has jurisdiction over the Detendants named in this Petition, because

each Defendant does busines~ in the State of Texas and committed the unlawful acts alleged in

this Petition in whole or in part in Texas.

        6.     Venue is proper in T.-avis Co.unty under section 36.052fd) of the TMFPA and

because many of the unlaw'ful acts committed by Defendants were committed in Travis County,

including the making of false statements and misrepresentations of material fact to the Texas

Medicaid Prngram.




PLAIN rlFF'S ORIGINAL PETITION                                           PAGE2
        IV.     PRELlMlNARY STATEMENT ANO NATURE OF THIS ACTION

       7.     This is a law en.forcemenl action alleging unlawtiJJ acts and seeking civil remedies

under the TMFPA

       8.     Xerox's unlawful acts resulted in a slibstantial breach of safoguards intended to

protect ta:.xpayer dollars, maintain the integriry of Medicaid policies, and ensure the appropriate

delivery of services to Medicaid clients. Xerox permitted an unpreeedented loss of Medicaid

funds to predatory and unscrupulous dental providers. As a result of the conduct of both Xerox

and these providers, the Medicaid program     wa~   deeply   ~omprnmised.   During the time periocJ

beginning January 1, 2004, when Xerox began its tenure as the State's Medicaid contractor, and

ending March l, 2012, when Texas shifted most of its dental benefits to managed care, Texas

Medicaid expended approximately $1.l billlo,1- dollars for orthodontic services to Medicaid

chems. Although a comprehensive damage estimate has not been completed, initial reviews of

t h ose expenditures indicate that a substantial percentage was paid in violation of Medicaid

policies, policies Xerox repeatedly assured Texas it was enforcing. Additionally, because of its

misrepresentations, Xerox was paid tens of millions of dollars for services it was, in fact, not

performing.

       9.     Xerox's liability arises from its misrepresentations regarding, and c-0ncealment of,,

material facts regarding its discharge of contractual obligations. Xerox bid for, and won,

contracts with the Texas Healtb and Human Services Commission (''HHSC') and its

predecessors to perfonn program administra tion for T~xas Medicaid. Included among the

administration responsibilities was evaluation .and proper disposition of prior authorization

requests s ubmitted lo Med[caid by dental providers for approval of orthodontic treatment. Xerox

repeatedly represented to Texas Medicaid of1jcia!s that its prior authorization system ensured



PLAINTIFf' SORJGINAL PETfTlON                                                P.AGE 3
propt.!r pre-determinations of medical necessity and enforcement of Medicaid po.Jicy. Contrary to

those repre-sentat!ons. Xerox knowingly failed to adequately review the orthodontic PA requests

and documentation submitted by providers to obtain prior authorizatio11 for orthodontic

treatment. Onhodontic PA requests were routinely "rubber-stamped" by Xerox employees

without proper review. Vast numbers of these orthodontic PA requests were for children whose

condition did nol meet Medicaid criteria for treatment. Xerox·s failure lo properly review these

applications penniued Medicaid dentaJ providers to re\.,-eive payment for services that were not

within the scope of medically necessary services pennitted by Medicaid Jcntal policy. Xerox's

conduct violates the TMFPA.

        I 0.   The State seeks to recover: ( l) the amount of any payments or the value of any

monetar~ or in-kind benefits provided under the Medicaid program, directly or indirectly, as a

result of the Detcndants' unlawful acts~ (2) pre-judgment interest on the amount of the payments

or the value of such payments; (3) two times the amount of the payments or the value of such

payments; ( 4) civil penalties in an amount not kss than $5,5.00       Of   more than $11.000 for each

unlawful act ~ommitted by Defendants~ 1 ( 5) costs, attorneys· fees, and expenses; and ( 6) any and

all other remedies that may be allowed under the TMFPA.

                                        V. BACKGROUND

        A.      The Texas Medicaid Orthod.ontic Benefit

        11.     Orthodontic services for children covered by Texas Medicaid arc limited by rufe

and by policy. To quallfy for orthodontic treatment, a child must meet a Mcdicaid~dcfinetl test of

medical necessity. In general 1 a child must be age twelve or older, or ha:vc lost all primary




1
  This maximurn civil penalty would rise to not.more than $15,000, for each unlawful act which results in
injury 10 a ch ild under 18. disabled person. or elderly person. See TMFPA § 36.052(a)(3)( A).

PLAINTIFF'S ORIGINAi PETl'I ION                                                  PAGF. 4
dentition (sometimes known as "baby teeth"), and suffer from ~i severe handicapping

malc..,cclusion. Medicaid does not authorize orthodontic treatment for cosmetic cotTectio11.

        12.    To ensure compliance with policy, Texas requires dental providers to obtain pdor

authorization of orthodontic treatment plans. Claims submitted for treatment are not considered

for payment unless prior authorization is obtained in advance. Each prior authorization request

must include- documentation specified by effecti.ve policy, These requirements include the

submission of a treatment plan, a properly-completed and scored Handicapping          Labio~Ungual


Deviation score sheet ("HLD sheet;') with a minim.um score, and clinical documentation

supporting medical necessity incl uding but not limit.e d to facia1 and intraoral photographs and

radiographs. Medical necessity for the requested treatment can be verified only by examination

and verification of the clinical documentation by a licensed dental professional. HHSC expected

and required the prior authorization process implemented by Xerox to include a proper review of

all documentation and verification o.f the client's eligibility fot the services requested; that is, a

thorough review to·ascertain that the dient a1:id treatment plan met all program requirements.

        8.     The 2003 Contract

        l3 .   On nr about May 1, 2002, HHSC released a Request for Proposal (''2002 RFP")

for fiscal and business adminii:.tration   D( the   Texas Medicaid Program. The 2002 RFP described

the prior authorization performance required of a successful bidder:

       Prior authorization (PA} is a mechanism to determine the medfoal necessity of selected
       non-emergency, Medicaid-covered, and medical services prior to service delivery, . . •The
       PA function will serve as a utilization tnanagernent measure allowing payment for only
       those services that are medically necessary, appropriate, and cost-effective, and reducing
       tbe misuse of specified services.

       Additionally, the 2002 RfP listed Vendor Responsibilities that included:

                   Receive, correctly disposition (i.e., approve, deny, modify, or determine
                   incomplete) ..• prior authorization requesls for services.. . .


PLA!NTIFF'S.ORJGIN AL PETfflON                                                PAGES
       PAC-5      Ensure that non-covered services are not prior authorized.

       PAC-8      Conduct quality assurance reviews to ensure appropriateness of Medicaid , . .
                  PA analyst decisions.

       PAC-15     Ensure PA staff use welt-defined processes and procedures for analysis and
                  research for PA approvals.

       PAC-17     Provide sufficient. and adequate professional medical staff for staffing and
                  managing the [>A function, induding medically knowledgeable PA analysts
                  for processing requests and availability of licensed medical protess.ionals to
                  provide consultative services regarding all Medicaid . . . covered service
                  types.

       PAC-40     Implement a quality assurance process and e~tab lfah procedures to
                  periodically sample and review dispositioned [sic I PA requests to determine if
                  PA policy and procedures are being followed.

       14.    Ln response, Xero}( submitted a proposal 011 August 21, 2002 (''2002 Proposal"). In

lhe 2002 Proposal, Xerox represented to Texas Medicaid tha.t its prior authorization process

would ensure the implemerttation of HHSC-approved dental criteria and policy and prevent

medically unnecessary services and identify over-utilization of ~rvices. Xerox represented that

qualified PA staff would review each request ant! determine whether the orthodontic: PA requests

complied with Medicaid policy an<i the. services were medicalty necessary. Xerox assured Texas

Medicaid thac qualified clinical personnel would use their medicaJ expertise and HHSC-

approved policy to evaluate medical necessity and cost-effectiveness of requesk~d services.

Xerox promised that it would provide ongoing quality reviews of PA activities, including

reviews of accuracy of the PA determinations an<l adherence to documented pr-0cedures.

       l 5.   HHSC awarded the Texas Medicaid Claims/Primary Cate Case Managen:1em

Administrative Services Agreement ('.2003 contract") to Xerox. The parties executed the 2003

contract in February-, 2003 . The 2003 cr111tract specifically incorporates the 2002 RFP and the

2002 Proposal. The 2003 contract expired by its terms on or about August 31, 2007.

PLAINi'lFF' S ORJGINAL PBTITION                                           PAGE6
          l 6.   During the transition period between execution of the contract and the assumption

by Xerox of operations on or about January f. 2004, Xerox personnel submitted for HHSC

approval written poJicies and procedures ("P&Ps'') specific to dental PA reqi1ests which

specifically represented to HHSC that every PA request would be st1bmitted to the dental director

employed by Xerox for review. The Xerox P&Ps incorporate<l the procedure followed by the

contractor preceding Xerox, a procedure HHSC expected Xerox to follow bnless changes were

auth0riz:ed by HIJSC. The P&Ps included a representation that the review of eacb PA request

would include an examination of the HLD scoring sheet as well as the radiographs, faciaJ

photographs, and plaster cast models of the patient's teeth.

          17.    Xerox assumed -operations u nder the 2003 contract on or about Jam1ary   l~   2004.

At or around that same time} Xerox implemented adifferent procedure than that described in the

P&Ps. Without submitting documentation of this chat1ge to HHSC, Xerox instructed its dental

clerical personnel to automatically approve applications for Medicaid-eligible chi ldren, age 12 or

over, accompanied by an lILD score sheet that showed a score of 26 or above ou its face. The

employees assigned to tbis task had no ql!al.ifications to ronduct a medical necessity evaluation;

and, indeed, these employees made no attempt to do so. In most instances, the employees did not

l!-ven ascertain that any or all of the required medical documentation was actually submitted by

the provider as required by Medicaid policy. Further, the clerical personnel were inadequately

lrained   to review the HLD sheet   for obvious over-scoring. If the application was for .a person

who me.t Medicaid eligibility requirements and the HLD score was facially 26 or more,, approval

was entered by the clerical personnel without forthcr ex.amination. This new procedure

drastically reduced the number of applications receiving review by the dental director, who was

the only perso11 employed by Xerox with the medical qualifications necessary to make a pr.opet


PLAINTIFF'S ORIGINAL PETmON                                                 PAG£ 7
review of these applications.

         18.    Clerical personnel were directed by Xerox to send only orthodontic PA requests

for children whose age was under twelve or whose HLD scores were below 26 to the dental

director for review, That was estimated to be l 0% of all orthodontic PA requests. However. even

the   W% reviewed by the dental director were not properly evaluated. The vast majority of those

orthodontic PA requests were approved by lne dental director, in many instances when the denm!

director knew the patient did not meet Medicaid p<'llicy requirements. Furt'her, as time went on

and the number of 'PA requests increased, Xerox clerical personnel were instructed to approve

applications for children under twelve without dental director review or proper authentication

that the chitd·s primary dentition had been lost.

         19.    During the course of the 2003 contract, Xerox continued to       promulgal~   written

documents indicating that every dental PA request was submitted for dental director review.

These documents misrepresented material facts regarding the actual procedures followed by

Xerox employees.

         20 .   The Xerox clerical j:)ersonnel processing dental PA Tequests repeatedly observed

providers were submitting dent::il Pr\ requests that, on their face, indj.c;ated a need for

pmfessional review by the dental director to ascertain compliance with ~1ledicaid policy. They

reported their observations and concerns to their superiors. Despite the concerns raised, Xerox

tnade 110 changes in its process to increase the level of review. Further, despite its representations

regardi.ng the efficacy of its quality assurance processes, Xerox made no attempt to test Lhe

accuracy of its orthotfontic PA dispositions.. Xerox did not even retain the medical

documentation necessary to conduct such a test.

         21 .   In fact, Xerox 'implemented cost-saving measures that made adequate reviews less



PLAINTJFF'S ORJGINAL PETlTION                                                 PAGE8
Likely. In or around August of 2006, Xerox launched its so-called Activity Based Compensation

("ABC"). Under ABC, Dental PA Specialists began working from home and were c-0mpcmsated

on a piece-work basis. This incentivized employees to process more PA requests in less time.

Xerox's home-base.d employees had no access to the medical documentation suhm.itted by

providers.

       '22.    In 200,8, tbellHSC' Office of Inspector General ("HHSC-OIG") began an auqit of

the PA processes followed by Xetox employees, HHSC-OTG auditors ohsewed Xerox clerical

personnel approving orthodontic PA requests without any review of submitted medica1

documentation . HHSC-OfG questioned whether this p(ocess rnet Xerox's contractual

obligations. Xerox management vigorously contested the issue. Xerox represented to HHSC-010

that its procedures constituted a medical necessity review of each dental PA request and t11at the

vast majority of the dental PA requests submitted met Medicaid coverage requirements. Xerox

made those representations even though it had not. verified medical necessity for, in its     'OWn


estimation. 90% of the dental PA requests stibmiU·ed and even though Xerox's ·d~ntal director

was approving most of the I 0% he reviewed himself even when they did not qualify for services

under Medicaid policy. Moreover, Xerox made its representations knowing it had done nothing

to test the validity of any prior authorizatiol1 approvals made by clerical personnel or the dental

director.

       23.     On or about August 29, 2008. HHSC-010 published its Performance Audit

Report C'2008 HlISC·OlO Audit'))..finding: "The PA dental team members could be approving a

portion of orthodontic PA requests that arc nol for the treatment of severe handicapping

malocclusion and other specially medically necessary circumstances. Dollars paid. for

orthodontic treatment, for the months of September 2007 through February 2008, were at least



PLAINTIFF'S ORIGINAt J>ETJT!ON                                              PAGE9
$52.6 million.'' 'HHSC-OJG made the formal recommendation that Xerox .should sample the

01thodontic PA requests approved by its per~onnel to ensure the PA re.quests meet the   crit~ria   for

Texas    Medicaid   benefits.   ln   its management response to the audit findings and

recommendations, Xerox represented that it reviewed the orthodontic PA requests "in

accordance with the Medicaid administration contract, policies and rules.'' Xerox further

r.epresented, "[T]he absence of PA reviews by a licensed dental professional does not mean that

payments for orthodontic treatment during the audit period of September 2007 through February

2008 were inappropriate." Xerox maintained that dental d irector review was not required by the

contrac;t, only statTing by "medically knowledgeable analysts,'' Xerox rnade that represeniation,

knowing that, in f~c(, none of the clerical personnel processing orthodontic PA requests were

medically knowledgeable. Xerox never implemented a process to sample for and confirm

compliance with Medicaid policy and/or the documentation of med.ical necessity in applications

apptoved by its personnel.

        24.    In or arouod March, 2009, in response to demands by HHSC for updated P&Ps

for all areas of operations, Xerox submitted Dental Prior Authorfaation P&Ps and Werk

Jnstructions to HHSC that indicated that aJI reqllests for dental PA were scrutinized 10 determine

that all required d ocumentation was submitted, that the dental and ot1hodontrc PA requests and

H LD sheets mer Medh:aid policy requirements. anc..1 that <tUa1ifying dental and orthodontic PA

requests were routinely submitted for demal director review to determine medical necessity.

        25 .   ln or about April. 2009, the HHSC Deputy Medicaid/CHIP Director for Claims

Administrator Operations ("HHSC Deputy'\) became concerned about Xerox's orthodontic PA

process. The HHSC Deputy was responsible for oversighl of Xerox's contractual performance

and was vested with authority to imp!)se sanctions under the contTact. The HHSC Deputy's



PLAINTlfF'S ORIGINAL PETtTION                                              PAGE 10
concerns arose from a n::view of the 2008 HHSC-OIG Audit and a letter written to HHSC-OIG in

November, 2008, by the Texas Office of Attoniey Geileral Medicaid Fraud Control Unit

("MFCU letter''). The MFCU letter set out infortnati:on obtained by MFCtl from Xerox's dental

director regarding the way Xerox was reviewing orthQdontic PA requests.

       26.     On or about April 15, 2009, the HHSC Deputy issued a State Action Reque51

(SAR) to the Managing Direct<.1r for Xerox. The SAR attached the MFCU letter of November,

2008, noting: "The contract required that [Xeroxl research, analyze, and evaluate all PA

decision.s and ensure aH facts an~ considered and documented prior ~o making. a PA

determination. The contract funher requires that [Xerox] correctly disposition all PA requests.''

The SAR fiirther stated:

       The temarks attributed to the [Xerox I Dental Director by the OAG, if accur-ate,
       suggest a serious lack of undei:standiog of the prio-r authorization requirenwnts for
       t11~ Medicaid dental program. It is absolutely imperative that rxeroxj exercise
       clinical ,judgment for each individual dental prior authorization request submitted
       and approve only those services that are clinically appropriate.

       If the . . . Dental Directors [sicJ c,omments are accurate then those comments
       represent a serious and material breach o f the contract. [Xerox] may be subject to
       actual damages for any procedures that were not clinically evaluated but were
       authorize<l and/or liquidated damages for failure to adequately manage the dentaJ
       prior authorization program.

       Prepare a response to each comment attributed to the ... dental director in the
       attached [MfCll) letter and provide HHSC with assurances that each prior
       authorization for dental services is reviewed 'by an appropriately -credentialed
       professional to determine dental necessity for the service. Provide HHSC 'Nitb
       assurance that every dental service during the cmrent [Xerox] Dental Dir~tors
       [sic] tenure has been reviewed for clinical necessity.

       27.     ln a meeting held in or about early May~ 2009, the HHSC Deputy confronted

Xerox with the evid~nce that XerQx was not reviewing orthodontic PA requests to determine

medical necessity and ensure Medicaid policy was. properly enforced. Xerox was asked

specifically whether it was "rubber-stamping'' these requests based solely on the lILD score;


P LA INTIFF'S ORIGINAL PETlTlON                                             PAGE II
Xerox's Managh1g Director assured th'e HHSC Deputy that such was not the case. Xerox

represented lha1 it was following policy and properJy reviewing orthodontic PA req.uests. Xerox

did not re¥eal to HHSC that it had. without authorization from HHSC, interpreted HHSC's

policies to mean that clerical personnel without any deotal training whatsoever were making

detem1inations of medical nece·ssity based solely on whether they saw a 26 or above on the HLD

score sheet.

       28.     On nr about May 13, 2009, the Managing Director submitted Xerox's formal

written. response to HHSC's SAR. Xerox stated: "We have reviewed the SAR comments with

lthe Dental Directorl who stares his   comroe11ts were taken out of context." Xerox made the
fo1Jowing representations:

       We review the dol:umentatio11 the provider submits to determine the medical
       necessity criteria, as outlined in the Texas Health Steps (THSteps) Orthodontic
       Dental Services Medical Policy.... [Xerax] reviews the dental seFVices prior
       authorization request for medical necessity based on tbe medical policy guidelines
       established by HHSC and the dental policy and procedures that are approved by
       HHSC. The dental specialists who review the requests are trai.11ed in the dental
       MedkaJ Policy and follow the approved policy and procedures to appropriately
       disposition ihe PA requests.

       29.     On or about July 3, 2009, Ill1SC issued another SAR requesting infonnation

regarding Xerox's con-ective measures to address the HHSC-OlG audit recommendations had

been appropriately implemented. Specifrcally, HHSC reqnired Xerox to provide to lfHSC

docwnenta1ion demonstrating Xerox's quality assurance process and the existing P&P describing

that process. HHSC also requested updated work instructions used to train PA staff. On or aboul

July 20. 2009, Xerox issued its response to the July 3, 2009, SAR. Xerox stated that it had not

added the sample step recommended by 1-U-ISC-OJG but had reviewed an internal sample of ten

cases approved by its dental team. Xerox represented to HHSC: ·'The results of that sample were

that all ten cases reviewed showed evidence of a malocclusr011 and were approved correctly


PL AIN.l'IFV'S ORIGINAL P'ETJTION                                        PAGE 12
according to dental policy." Xerox. attached what it represented to be its current quality assurance

("QA") P&P for PA. The QA P&P tepresents tbat the QA process tests whether '"[a]ll medical

facts are considered and documented in the PA determination." ln addition to the             QA P&P.

Xerox attached what it represented were current Dental PA work instructions. The described

procedure represents dental altthorization requests assigned to Dental PA specialists are reviewed

"tu be certain the request is submitted in its ~ntitety."' The procedure continues: "After the

request is checked for client and provider el igi.bility and duplications, the request is forwarded to

tb~   Dental Director,s in-box for review, and x-rays/photographs (molds, if necessary) are

prepared for his inspection." Th.e work instruction adds: "The DentaJ Director will entel' the

decision , _!' This documenta.J.ion submitted by Xerox to HHSC misrepresented material tacts

regarding actual procedures followed by Xerox persormel.

        C.      The 2010 Contract.

        30.    On or about August 15, 2008, HHSC released a new Request fol' Proposal ("2008

RFP") for administrative services to Texas Medicaid. The 2008 RFP included svecifications of

the Prior Al1lhori-'zation services HI ISC expected a successful bidder lo provide:

        Generally, Ptior Authotization (PA) is a process used to determine the me.dical
        necessity for selected non.emergency medical services. equipment, drugs and
        s1.1pplies before the services or .supplies are provided . . . .In compliance with State-
        approved policies and procedures, the Vendor prospectively implements
        processes to review the facts associated with cett<'lin treatments proposed by
        providers • . . and makes detenninations regarding the me.dical necessity and
        apprnpriatcncss of care. Prior Authorization requests must be reviewed on a case-
        by-case basis for clients who are eligible for services ....

        The primary objective of the P /\ function by the Vendor is to manage utilization
        by only aJlowing payment for those covered services that are medil;ally necessary,
        appropriate, and cost~effective, thereby reducing over-utilization andior abuse of
        spedfied services.

The general requirements imposed upon the Ven.dnr included:


PLMNTll>F' S ORIGINAL PETITION                                                  PAGE l3
        PAC-03         R~tain and retrieve al I PA records in accordance with the State~
                       approved record-retention and retrieval guidelines.

        PAC-04         Establish and follow State-apt'roved policies and procedures. for
                       analyzing and researching PA determinations.

        PAC-06         Submit to the State for review and approval a quality assurance
                       plan and procedures for verifying the accuracy of analyst and
                       medical director prior authorization dispositions/decisions
                       (approval, denial, incomplete and modification). The quality
                       assurance p!an must include al least a bi-annum review schedule
                       for all types of Prior Authorization decisions, and be submitted to
                       the State annually. Changes to the quality assurance plan and
                       procedures must be approved by the State prior to implementation.

Prior Authorization Processing tasks and activities were iocluded in the 2008 RFP to

describe lh.c "results/outcomes'' the Vendor mt1sl achieve:

        PAC-20         Receive1 correctly disposition (i.e. approve, denY.. modify., or
                       determine incomplete). . . . -prior authorization requests for aH
                       services....

       PAC-23          Eslablish and maintain State-approved processes and procedures to
                       ensure that non-covered services are not prior aul~orized unless
                       specifically directed by the State.

Tbe 2008 RFP also identified specific criteria to "ensme chat appropriate Medical

Necessity evaJuation i-s conducted for PA determinations,\' including:

       Pt\C- 36        Research, analyze and evaluate all PA decisions and ensure all
                       medical facts arc considered and documented prior to
                       determination,

The 2008 RFP specified the following with regard to PA staffing:

       The Vendor's PA staff must have the education and professional credentials
       defined by the State to penorm the PA tasks and activities.

       PAC-37         Provide and maintain a st1fficienl number of knowledgeable and
                      profossional medical personnel to perform the PA function, in
                      accordanc.e with State-approved proce$ses a(ld procedures.

                       PA personnel must include:



PLAINTIFF'S ORIGINAL PETJTION                                             PAGE 14
                           •   Medically knowledgeable PA analysts, to process teguests;
                           •   Licensed medical professionals available at all times to
                               provide consultative services with regard to all covered
                               service types; and
                           •   Licensed nurses acting within their scope-of practice ...

        31.   On or about January 27, 2009, Xerox submitted its Proposal for Medicaid/Child1·en

with Special llt!altb Cart! Needs Services Program Claims .Processing, Primary Care Case

Management and Pharmacy Claims and Rehate Administraiiou (''2009 Proposal") to HHSC. The

Proposal included representations specific to Prior Authorization management:

        The [Xerox} Prior Authori>tation department offers clients. providers~ and the
        State the benefits of detailed knowledge of medical policy authorization criteria
        cmd program services limitations, industry standard evidenced based criteria; as
        well as the clinical knowledge to faciJitate medical necessity determinations.

        The Prior Authorization (PA) department consistently demonstrates the principles
        of good health ca:re program management. enabling the State to conserve health
        care funds while ensuring the provision of necessary servfoes to clients who
        genuinely need them.

        The director of the PA department . . . accepts responsibility for pmcessing
        provider authorization requests according to . . . Medicaid . . . program
        requfrements. The director ensures compliance with State and Federal regulafions
        for authorization of services. Along witb [Xerox's) medical affairs officer and the
        medical director, [the PA dire~tor} feads the prior authorization activities and is
        responsible for processing provider authorization reqltests in accordance with
        HHSC approved medical policies. We review authori2at1oo requests for clients
        who are eligible for services .•. 011 a case-by-case basis.

Xerox represented that its PA department met the "primary business objective of the PA function

. . . to redi1ce the excessive utilization or abuse of specified serviees by requiring prior

uuthorization based on Medicaid policy and sound medical/dental criteria before allo\\>ing

payment ... [ensuring] 'that the services are medically necessary,. appropriate~ and cost-eITective.

Xero" represented that it meets this objectiv~ by "maintaining a.o efftcient prior authorization

process using HHSC approved medical/dental criteria attd experienced qualified staff to review

authorizatio11 requests. 1• Xerox r~presented that it was meeting HHSC's Busjness Objective of

PLAINTl.FF 'S ORIGINAL PETITION                                              PACE IS
Utilizatlon Review to Rn:-ure Appropriate Determinations for Requested Services and Supplies

through its reviews of authorization requests for       ~ompleteness   and lts determinations by

professional medical personnel for medical necessity. Xerox represented that its ·•p A policies

and procedures provide the ability for tne prospective review of requested services and benefits,"

allowing "a comprehensive medical necessity review." Xerox addressed the quality assurance

requirements as follows:

        PA quality assurance activities include reviewing that PA determinations apply ..
        . established policies and procedures appropriat~ly, thereby meeting the
        applicable Federal and State laws, tules. and regulations and guidelines.

Xerox. stated:

        PA staff review ·and consider all medical facts submitted by a provider • .. when
        determining medical necessity for requested services. Before making a PA
        determination. we research. analyze, evaluate. and ensure we consider all
        d<>cumented medical facts, in accordance with State approved criteria.

Xerox represented U1at its PA pcrsonneJ includeS' "Medic.ally knowledgeable PA Specialists wno

analyze and process reque,sts.1' Xerox fUrther represented that medical necessity     review~   were

perfonned only by medically qualified personnel. All oftbese representations were false.

        32.      On or about   S~ptember   I. 2010. Xerox was awarded the new contract ("'2010

Contract"). The 20 IO contract. 1nc<rrporates both the 2008 RFP and Xerox'--s 2009 Proposal.

        33.      On or about January 19, 201 l , HHSC issued a. SAR identifying perfotmance issues

with the prior authorization of orthodontic requests. This SAR Mtned specific authorizations

approved   ~Y   Xerox that did not meet Medicaid policy. On or about May 18, 201 J, HHSC issued

an ••oral Notice of Deficiency with Corrective Action Plan - Orthodontia Prior Authoriz~tion."

On or ab0ut May 201 20 l t Xerox sent a response SAR lo HHSC with what it represented a.:> its

current work instmctions aJong with what purported to be "draft" work instructio11s, The

"current" work instructions still described all dental prior atnhorization requests going to the


l'LAfN f IFF'S ORJGrNAL Pl:.TI flON                                         PAGE 16
dental director. The "draft'" work instructions describe a process wherein the Dental Specialist

ensures that the request is complete, ensures that the HLD score is 26 or more, and sends

orthodqntic PA re-quests for dental director review if the score is less than 26.. On or about .June

8, 201 1~ Xerox sent a "follow-up•• SAR response to the Oral Notice of Deficiency-. In it, Xerox

represented to HHSC that the PA specialists who process requests for orthodontia serviees are

·•medically knowledgeable PA analysts who do not make final .determinations of medical

necessity; therefore, these staff are not licensed or certified ," Xerox represented to HHSC that

the "medically knowledgeable'' analysts only approved those applications with a "verified" score

of26 or ~bove. In fact, Xerox personnel were not trained to check the validity of a score of 26 or

above. On or about July 19. 2011, in response to continuing requests for ·clarifi.catjon by l-IFISC,

Xerox finally admitted; "[Xerox) ' validates' the score by 111a.theml)tically calculating I.he

providers recorded numbers to ensure the score totals 26 or higher!'

       34.    In or about October, 2011, at HHSC's insiscence, Xerox implemented new

pfocedures including a review by a licensed dental (Yrotessional of all orthodontic PA requests.

       35.    ln or about   January~   2012, HHSC instructed Xerox to discontinue processing

dental prior authoriz.ation requests in anticipation of the implementation of managed care.

              VI.      APPLICABLE TEXAS STATUTORY PROVISIONS

       36.    Prior to August 31~ 2005, a person committed an unlawful act as defined under the

Texas MeCLicaiq F"raud Prevention Act by, among other things:

               A.     Knowingly or intentionally making or causing to be made a false
                      statement or misrepresentation of material fact on an application for a.
                      contract, benefit, or payment under the Medicaid Progra;m; or that is
                      intended to be used to determine a person ~s eligibiiity for a benefit or
                      payment under the Medicaid program. TEX. HUM. Res. CooE §
                      36.002(l)(A) & (B).




PLAINTIFF'S ORfGJNAI., PETITION                                             PAGl: 1'7
                B.     Knowingly or intentionally concealing or failing to disclose an event that
                       the person knows affects the initial or cominued right of the person to a
                       benefit or payment under the Medicaid program and to pennit a person to
                       receive a benefit or payment that is not authorized, or that is greater than
                       the benefit or payment that is authorized.. TEX. HUM. RES. CODE §
                       36.002(2).

               C.      Knowingly or intentionally making, or causing lX> be made, inducing, or
                       seeking to induce the makirtg of a false statement or misrepresentatiou of a
                       material fact concerning 'information required to be provided by a federal
                       or stare law. rule, regulation or provider agreement pertaining to the
                       Medicaid Program. TEX. HUM. RES. CODE § 36.002(4)(8).              .

               D.      Knowingly or intentionally entering into an agreement. combin,ation. or
                       conspiracy to defraud the state by obtaining or aiding another person in
                       obtaining an unauthorized payment or benefit from the Medkaid program
                       or a fiscal agent TEX. HUM. RES. CODE § 36.002(C>).

        37.    Since August 3'1, 2005, a person commits an unlawful ac1 as defined under the

Texas Medicaid Ji'rnud Prevention Act by, among other things:

               A       Knowingly making or causing to be made a false statement or
                       misrepresentation of,a material fact to permit a person to receive a benefit
                       or payment under the Medicaid program that 1s not aulhorized or tbat is
                       greater than the benefit or payment that is authorized. TEX. HUM. RES.
                       CODE ANN.§ 36.002(l)(A) & (B).

               13.     Knowingly concealing or failing to disclose information that pennits a
                       pers0n to receive a benefit or payment under the Medicaid program that is
                       not authori7.ed or that is greater than the benefit or payment that is
                       authorized. TEX, HUM. RES. CODE ANN. § 36.002(2).

               C.      Knowingly making, causing to be made, inducing, or seeking to induce the
                       making of a false statement or misrepresentation of material fact
                       concerning information required to be provided by a federal or state law,
                       rule, regulation, or provider agreement pertaining to the Medjcaid
                       program.      TEX. HUM. RES. CODE ANN.   § 36.002(4 )(R).




PLA INTIFF'S ORIGlNAL Pl:".Tl'rlON                                          PAGE 18
                           VU. DEFENDANTS' VTOLATlONS OF T HE
                          TEXAS MEDICAID FRAUD PREVENTION ACT;i

       38.        The State re-alleges and incorporates         by reference as set forth     her~in the

allegations contained in Paragraphs t through 35 of this Petition.

        39.       Xerox    knowingly    made    or     caused   to   be   made     false   statements   or

misrepresentations of material facts to HHSC authorities charged with overseeing Xerox's

contractual perfonnance tegardi ng:

              •   The application and enforcement of      M~dicaid   policy with regard to orthodontic

                  treatment~


              •   The conducting of medical necessity reviews of requests for orthodontic prior

                  aulhori;r.ation;

              •   The provision of adequate rnedicalJy knowledgeable personnel to make medical

                  necessity determinations;

              •   The application and .appropriate enforcement of Medicaid pollcy with regard to

                  the review of documentation submitted by providers to support medical necessity

                  fot orthodontic treatment

              •   The implementation of quality assurance processes necessary to assess the

                  dispositions of requests for orthodontic prior authorizations;

              •   The retention of reco·rds necessary to justify the dispositions of requests for

                  orthodontic p.rior authorizations.

Xerox•s false statements and/or misrepresentations permitted orthodontic providers to receive

benefits under the Medicaid pro~ran1 in violation ofSection 36.002{1) of the TMF~A.
2
       rn August of 2005, applicable provisions of the TMFPA were amended as set forth in 1[~
36 through 37 above. Plaintjff:s are seeking the appropriate remedies for Defendants' unlawfol
acts (which Include Defendants' conduct both prior to and after August 2005 for purposes of this
lawsuit) as.defined in the TMFPA at the time such unlawful acts were- committed.
PLAlNTTFf'S ORIGINAL PETITION                                                    J>AGE 19
        40.       Xerox knowingly concealed from, or failed to di.sclose to. l JHSC authorities

charged with overseeing Xerox's contractual performance events or information regarding:

              •   The application and enforcement of Med.icaid policy with regard to orthodontic

                   treatment;

              •   The conducting of med1cal necessity reviews of requests for orthodontic prior

                  authorjzation;

              •   The provision of adequate medicalJy knowledgeable personnel to conduct medical

                  necessity tletermitiations;

              •   The application and appropriate enforce1rteL1l of Medicaid policy with regard to

                  the submission    by providers. of medical documentation to support medical
                  necessity for orthodontic treatment:

              •   The implementation of quality assurance processes necessary to assess the

                  dispositions of requests for orthodontic prior authorizations~

              •   The retention of records necessary to justify the dispositions of requests for

                  orthodontic prior authorizations,

Xerox's concealment and failure to disclose material information               pennt~ted   orthodontic

providers to receive payments under the Medicaid program that were not authorized o r that were

greater than the benefits autJ1orized in violation of Section 36.002(2) of the TMFP A.

       41 .       Xerox knowingly or intentionally made, or caused to be made, induced, or sol,lght

to induce the making of false statements or misrepresentations of material facts concerning

information required to be provjded by a foderal or state law, rule, regulation or provider

agreement pertaini.ng to the Medicaid Program in violation of Section 36.002(4) of the TMFPA.

Xerox's conduct permitted Xerox to receive payments for services it failed to perfotm and


PLA!NTiFF'S ORJGINAL PETITION
induced the Texas Medicaid program to. make payments to both Xerox and orthodontic providers

that should not have been paid.

         42.      As a result of Xerox's conduct, hundreds of millions of dollars in pay'tnents were

made for services not performed and orthodontic. benefits not authorized by Medicaid policy by

the State of Texas.

         43.       Under the TMFPA, Xerox is liable to the State of Texas for the value of any

payments or any monetary or in-kind benefits provided unde1· the Medicaid program, directly or

indirei.!tly~   as a result of its unlawful acts. two times the amount of those payments, plus pre-

judgment intetest on the value of those payments, and a civil penalty for each unlawful act

committed, in addition to the fees, expenses, and costs of the State of Texas in investigating and

obtaining civil    r~medies   in this matter.   TEX. HUM . RES. C ODE§§   3.6.052, 36.007.

         44.      The State invokes    ~JI   relief possible at law or in equity under TEX. HUM. RES.

CODE    §36.052, whether specified in this pleading or not

         45.      The amounts sought from Xerox; are in excess orthe minimum jurisdictional limils

of this Court.

                  vrn.    STATUTORY TNJUNCTION UNDER§ 36.051 OF THE ACT

        46.        The Attorney General bas good reason to believe the Defendants are committing,

have committed, or are about to commit lln1awfo1 acts as defined by the TMFPA. These illegal

acts may be enjoined under§ 36.051 Of the Act, and under TEX. GOVT. CODE§ 200L202.

                                         lX.      JURV   DEMA~D


         47.      The State respectfully requests a trial by jury on all claims pursuant to Texas Rules

of Civil Procedm'e 2 l 6.




PLATNTIFF'S ORIGINA L PETITION                                                     PAGE: 21
                                           X.      PRAYER

       48.    The State asks that judgment be. entered upon trial (}[this case it1 favor of the State

against Xerox to the maximum extent allowed by law.

       49.    The State asks for injunctive relief pursuant to§ 36.051 of the TMFPA and ·under

TEX. GOVT. CODE § 2001.202.

       50'.   The State asks that it recover from Xerox:

               A.     restitution of overpayments made as a result ofXerox7 s unlawful acts;

               B.     lwo. times the value of any overpayments made as a result of Xer0x's

                      ur1iawful (lets;

              C.      civil penalties~

               D.     prejudgment interest;

              E.      expenses, costs and attorneys· lees: and

              F.      post-judgment interest al the Jega1 rate.




                                         Respectfully stJbmitted,

                                         GREG ABBOTT
                                         Attorney General of Texas

                                         OANlEL T. HODGE
                                         First Assistant Attorney General

                                         JOHN SCOTT
                                         Deputy First Assistant Attorney General




PLAINTIFF'S ORlGINAl Pf.1Tf!ON                                               PACE.22
                                   /\ss1st,m1 AUurni.;ys Ot:nernl
                                   P.O. Ao\ I2~·lN
                                   Auslm. Tc u 787 1t-2548
                                    51 :?l 4 ~9-0 I:! tu\
                                    rro.u    t·V. FOR THE s l'ATE OF fE ·"·


Pt.ANTIFl- '.\ U U.ilNAI Pl· llK                                      • . lJ
                                                                    ,~,
                    Tab C
Office of Inspector General Report dated August 29, 2008
             TEXAS
             Health and Human
             Services Commission

    Albert Hawkins, Executive Commissioner



   Office of Inspector General

      Performance Audit Report
Texas Medicaid Healthcare Partnership
      Prior Authorization Audit

              August 29, 2008


         Bart Bevers, Inspector General




                                    OlG Report No 08-70-Sl903t91-MA-03j
                                                                    CONTENTS
                                                                     ...

 Transmittal Letter

 Executive Su·mmary ........ ,...,. ........................................ ,. ............................................................... ~.....•....•. J

 Detailed. Findings and Reconunendations ................................................................................................. 3

 Appendix A - Objective, Scope, and Methodology ......................................... ,. ..................................... I 0

 Appendix. B-Report Distribution ........................................................................................................... 12




August 29, 2008                                          Performance Audir Rep<lrt                                                                   Page i
                                                       TMHP Prior Authorization Review
                                                   otG Report No. 08-70-52903191-MA-03
                           TEXAS HEALTH AND HUMAN SERVICES COMMISSION

                                                                                                          AL!fF.RT IfAWKIN&
                                                                                                       r.\E<L H\ r o 1~1 ,11o;,1n:-.1.J{




August 29, '.2<108

.Rick Pope, Vice President, Managing Director
Texas \-fedicaid Healthcare PartnL-rship
l 2365~A Riata Trace Pkwy, Building 9
Austin. Texas 78727

Dea.r Mr. Pope:

The Health and Human Services Commission (HHSC) - Office of Inspector General, Audit Section
(OIG) has completed its audit of the Texas. Medicaid Healthcare Partnership (TMHP) Prior
Authorization Ptocess. The audit obj.ective was to detennine if TMHP's prior authorization process
complies with contractual obligations, Texas Administrative Code, and federal regulations. Upon
finallzing th!! audit objectives, the audit scope was the period September J, 2006 to March 31, 2008.

The detailed findings and recommendations with management responses ate presented in the enclosed
finaJ report.

We would like to thank you for the '-=ourtesy extended to us by TMHP Prior Authorization section
management and staff during the audit. tf you have any questions or i::uncems~ pleac;e do not hesitate
to contact Mark Poch I, Director of the: OJG Audit Section, ar mark. poch lCCi1hhsc.statc.t.x..us M by phone
at (512) 491-2872.

Sincerely,



Mark Poehl. CPA. ClA, CFE. ClSA
Director, Audir Section

Endosure




  P , 0.   Bo.~   85200 •Austin, Texas 78708 •Mali Code 1342 • 11 lOl Metric Blvd., Building I, Austin, Texlii\ 7ll758
                                                     ILXECUTlVE SU~IMARY

 Audit Results (Statement of Findings)

 Based upon the evidence provided and test conducted. Texas Medicajd Healtlware Partnership 's
 (TMHP) pri(lr authorization process partially complies with contractual obligationsr Texas
 Administrative Code., and federaJ regulations, Areas of noncompliance are as folll1ws:

 •    An opportunity for improvement exists in the orthodontic prior authorization requt:sts process
 •    Prior authorization staff approved prior authorization requests that were not m compliance with the
      Texa!i Medicaid Providers Pr::oced-ures Manual
•     Four prior authorization requests were not processed in a timely manner
•     USB ports are enabled on Prior Aµthorization systems for employees who work from home


Objecth:e (Subject)

The Health and Human Services Commission (HHSC) - Office of the Inspector General.
Medicaid/CHIP Audit Unit (OIG) has completed Its audit ofTMHP Prior Authorization Process. The
audit covers the period September I, 2006 to March JI, 2008-. The objective of the audit was to
determine if TMHP's prior authorization process complies with contractual ob1igatians, Texas
Administrative Code; and foderal regulations.

This audit was conducted under the authority granted to .OLG in the Texas Government Code Section
531.102(h)(4). This performance audit was conducted in accordance with Government Auditing
Srandards. 2007 revision, issued by the Comptroller GeneraJ of the United States. Those standards
re~uire that we plan and perform the audit to obtain sufficient, appropriate evidence to provide a
reasonable basis for our findings and conclusions based on our audit objectives. We betieve that the
evidence obtained provides a reasonable basis for our findings and conclusions based on our audit
objectives.


Summary of Scope and Methodology (Summary of Activ;ties Performed)

The audit of the TMHP Prior Authorization Process covered the period beginning Septt-mber 1, 2006
and ending March J L 2008 , The methodology employed throughout this performance audit incl oded
objectively reviewing and analyzing various fonns of documentation, conducting interviews and
observations, and conducting tests necessary lo achieve the objectives of the audit. See AppendJ.x A
for detailed objective, scope, and methodology.


Background

As of January I. 2004, ACS State Healtbcare LLC, under contract with the Texas Health and Human
Services Commission (HHSC). assumed administration of Medicaid claims processing and the
Medicaid primary care case management services program. ACS meets its new consolidated Medicaid
                                                                         1
responsibilities w·ith a team of subcontractors under the name of TMHP .

1 Obtained tT<Jrn TMHP··~ \~O::bs[te as ,1f' August 5. 20<)8. ACS 1!> 1\ffflilltecf C\1mpu11.~r Services.


August 29. 2008                                       Performance Aud1t Report                              Page 1
                                                    fMHP Prior Authorization Audit
                                                OIG Report No. 08-70-5290319 l -MA·il3
 111is Medicaid ad1ni11istration contruct incorporates the Request for Propo::icd (RFP) . Sc:ction 8, Vendor
 Rcsponsihilitic::s, of the RFP states ~ Prior authorizatio n (PA) is a mechanism to determine the medical
 necessity of selected non·c:mergency, Medicaid-covered. and medical services prior to service d~livery
 (and retrouctively m special casi:s). Providers submit requests for PA to pcrionn s~ificd services.
 The PA funct ion will ser\'e as a utilization manag~ent measure.: allowing payment for only those
 serv1ces that arc medically ncce~sury, appmpriat~. an<l cost-dfccth·c. and reducing the misuse of
 spe1.:i fied services.




Augu~t   29. 2U08                       r>~rformance Audit Repl)rt
                                      TMHP Prior Au(J10riz.atioo Audit
                                   OJG Report No. 08· 70-5~9031 l) l -MA-1) '
                         DETAILED FINDINGS AND RECOMl\ifENDATJONS

    Finding          - Opportunity for Improvement in the Orthodontic Prior Authorization Requests
    Process

    An <)pp\lrtunity for improvement was noted in the documentation review process for orthc><lontic prior
    authorization (PA) requests. CutrentJy, not all documentation that supports the Texas Medicaid
    Program benefits for orthodontic PA requests, approved by the PA dental team, is reviewed. Rules and
    Regulation~ governing the orthodontk PA requests include:

        o   S~~tion I 9, 18. Orthodtmtic Services. of the T t!Xas Medicaid Provlders Procedures- Manual,
            stares "Orthodontic s~'Tv1ces for cosmetic purposes only arc not .a benefit of rhe Texas Medicaid
            Pro~am .      Orthodontic serv1ces are limited to the treatment of severe handrcapping
            mnfocdusion and other special medically necessary circumstances as outlit1!!d tn Benefits and
             Limitations...'~

        o   Section 19. l 8.2, Mandatory Prior Authorization, of the Texas Medicaid Provide·rs Procedures
            Manual, states "Requests for orthodontic services JllUl't be accompanied by all the following
            d ocum entation:

                 •    An orthodontic treatment plan. ,.
                 •     Cephaf(~metric  radiograph with tracing models
                 •    Completed and scon:d HLD .sheet . .
                 •    Facial photographs
                 •    Full series of radiographs or a panoramic radiograph; .. ,
                 •    Any additional pertinent inform.a tion as determined by the dentist or requested by
                      TMHP's Dental Director ... "

       o    In s1::ction 8.9.5. Vendor Responsibilities, of the Request for Proposal, it is stated in PAC-o that
            the Vendor must ''Research. analyze, and evaluate all PA decisions and ensur~ all medical facts
            are consi<lered and documentell pri\)r to determination ...

       o    Additionally. PAC·l7 states that the Vendor must "Provide sufficient and adequate
            professional medical staff for staffing and managing the PA function, including medically
            knowlt:dgeabJe PA analysts for processing requests and availability 1Jf licensed medical
            profe$sionals to provide consultative services regarding all Medicaid and CSHC'N covered
            service types, .. "

To approve an orthodontic PA request the PA dental team members verify the mathematical accuracy
nf. and ensure that, the HanJict1pping Labiolingual Deviaifon (HLD) index S\.":Qre is at least 26. The PA
dental wam members do t1ot re\.'iew the additional documentation required per the Texas Medicaid
Providers Procedures Manual (TMPPM) and do not have rbe dental licenses ne<::essary to determine if
the additivnal docurnemati.on supports the H LD index score.

TMHP staff did state that under predefined circumstances. approximately I 0%2 of the orthodontic PA
reque!:its a.re referred to, and the documentation reviewed by, the Dental Director. This means



    fhi.-; p~n:emage ha:s nol been audited by O IG. The audit client providr•l !he 51at1stu:-
1




Augtt."t 29. 2001!                                 Performance Audit R..:pon                             PageJ
                                                 TMHP Prior Authorization Audit
                                             OlG Rt!port No.   08-70-5290Jl9l-MA~03
 approxlrna,tery 90% of the documentation for orthodontic PA requests is not    being reviewed. Zero of
 the 18 orthodontic sample items tested were rcforred to the Dental Director.

The PA dental team members could be approving a portion: of orthodontic PA cequests thal are not for
the treatment of severe handicapping malocclusion and other special medically necessary
circumstances. Dollars p.a.id for orthodontic treatment for the mlmths of September 2007 through
February 1008, were at least $52.6 rnH1km.

 Recommendation:

TMHP $hould sample the orthodontic PA requests approved by the PA dental team members. The
sampte and its documentation should be reviewed by a licensed dental professional to ensure that the
orthodontic PA requests meet the criteria for Texas Medicaid Progratn benefits.

Management Re.spom•e:

TMHP r~vicws orthodontic prior authorization requests 1n acc."Ordancc with the Medicaid
administration contract, policies and rules. The contract does not require orthodontic PA requests to be
reviewed by a licensed dental professional. Therefore, the absence of PA reviews by a licensed dental
profossional does not mean that payrrH.~nts for orthodontic treatment during the audit period of
September 2007 through February 2008 were inappropriate.

PAC-6 and P AC-17 require consideration of documentation to determine medical necessity and
adequate management and staffing of the PA function, includjng medically knowledgeable analysts
and ''the availability of' licensed medical professionals to prv1•ide consultative services." When a
provider submits a PA request according to Section l 9. l 8.2, the request includes a score sheet with
preset scoring criteria. According to the currently approved medical policy, a score of 26 or 1nore
meets medical necessity fur approval. Scores below 26 require the r~view of a licensed medical
profe,ssjonal. fn additjon, certain high cost items arc referred to a licensed medical professional for
approval. As noted by the auditorS, approximately l 0% of the orthodontic PA requests were referred.
to the Dental Director for consultative services in accordance with the contract. All of the orthodontic
PA requests sampled by the auditors that w~e not referred to the Dental Director achieved a score of
26 or higher in accordance with the policy.

TMHP is willingfo add a sample step to this process; however, it may require a change order. TMHP
PA will discuss the audit recommendation to sample the orthodontic PA requests approved by the PA
dcnt~l team members with HHSC. The sampl~ could be added tQ the ClUTent PA process once the
scope~ resources, methodology and reporting are agreed to by TMHP and HHSC.



Finding 2 - Prior Authorization Staff Approved Prior Authorization Requests That Were Not in
Conlplianc.e With the Texas Providers Procedures Manual

lncorrect Signatures on tire HLD Jnde)(

PA staff approved two orth0dontic· PA requests, om nf the nine samp1 e items tested ( 22 .2"/o ). with
incorrect signatures for the Handicapping Labiolingaul Deviation (HLD) lndex for the Comprehensive
Orthodontic Treatment procedure code 08080. Section l 9. l 8.21 Mandatory Prior Authorization, in the
TMPPM states that ''Requests for orthodontic services must          oe
                                                                   accompanied by all the following:
<lo<.:umentation: ,,. Completed and scored HLD sheet with diagnosis of Angle class (26 points required


Augu~< 29', 2008                         Perfonnancc Audit Report                                P~ge   4
                                     lf\411P Prior Aut hori:r.ation Audit
                                  OlG Report ~o . 08-70-52903191-MA-03
 for approval of non-cleft palate cases)." Seclion l9.20. How to Si;ore the Handicapping Labiolingual
 Deviation !HLD} Index, jn the TMP,PM further states that ·'The orthodontic prnvider must complete
 and sign the diagnosts (Angle class~. ·•

 When the provider submitted the HLD sheet to Tl'vfHP, the primary practitioner did 0(1f sign it. A
 stamp was used in place of the handwritten, original signature. The two sample items in tiuc:stion were
 from the same provider. This provider had used three difforeot signatures on the THStcps Dental
 Mandatory Prior Authorization Request Fonns and HLD Indexes.

 Incomplete THStt:p.s-CCP Prior AutborizatiOn Request Forms

 PA staff approved four incomplete THSteps-CC'P Prior Authorization Request Fonns out of fhe 62
 sample items tested (6.5%} fur tht! Pri vate Duty Nursing services procedure code TlOOJ. Section
 43 .4. l 3 .6, Documentation. in the TM PPM states that ·'The THSteps-CCP Prior Authori7.at1un R~uest
 Form must be completed, signed, and dated by the physician. The physician must mark ch.e Private
 Duty Nursing box documenting the stahility of the client for PON. All requested dat<..as of service must
 be irn:Ju<led."

 When the provider submitted the THSteps-CCP Prior Authorization Request Forms to TMHP, the
 primary practitioner did not ~omplete the section Primary Practitioner's Certifications

TMHP did not comply witb the requirem.:nts in the TPPM tor the HLD Jndex and the THSteps-CCP
Prior AuthoriLation Request Forms.

Recommendation:

TMHP should consider increasing training for current and. future PA staff to ensure that ini.:orrect
signatures and incompJete forms arc not apprcwed.

Management Re.\po11se:

Incorrect Signatures on the HLD fmlex
TMHP PA leadership will conduct rewuning with PA dental team staff to ensure that stamped
signatures are not approved and will update the PA Work [nstruction.s used for new staff training to
include the same infimnatinn. However. the currertt dental medical policy docs not require an original
handwritten signature: neither the policy nor the provider manual specifies that a provider cannot use a
stamp or an electric signature on the dental request fonn or th~ HLD Index. TMHP PA will work with
DRT to draft HHSC approved provider harmer and bulletin communications that dental PA requests
and HLD Index sht.."ets must have original provider signatures and that stamped signatures cannot be
avprove<l. These communications w111 then be inclut!c<l in the next revisions of the Texus Providers
Prot.:t:dures Manual (TMPPM) Denta] section as the sechmi does not current!)' state that stamped
signatures cannot be approved.

Incomplete Tl lSteps-CCP Prior Authonzation ~est Forms
The auditor ~1.mectly noted that a box was not checked on four PA request forms sampled. fn each
instance. the form included all substantive documentation requited as well as the physkian's signature,
and the fonn was reviewed by PA staff and detennined to adequately support medical necessity. Jn
these cast:s. the PA was approved in th!! interest of efficiency mther than pending the request and
requiring the provider to resubm;t it.


Auguiit   ~9. ~01)8                     Perfunnani.:c Au<JiL Report                              Page 5
                                      fM HP Prior Authorization Audit
                                  OIG Report No. 08-70-52903 I91-MA·(1J
 TMHP PA leadership will tonduct retraining with PA CCP team staff to ensure that Private Duty
 Nursing (PDN) requests where the provider has not marked the PON box are ttot approved and will
 update the PA Work Instructions used for new staff tra1ning to include the same info.rmation. In the
 interest of streamlining the PA process for providers. TMHP PA leader~hlp will work with HHSC
 through the Medical Policy review process to consider revisions to the CCP PON .request fonn
 removing the. cbeckbox.es from the Primary Pr~ctitioncr's Certi1icalions. section and allowing the
 existing wording along with the physicia:n 1 s signature tu be the provider's certjficatfon.


 Finding 3 - Fout Prior Authorization Requests Were Not Processed in a Timely Manner

 Four out of I 0 ( 40%) PA requests for power v1-heelchairs (PWC) were not processed in a timely
m~nner.  Rules and Regulations for all prior authorization requests include:

     o    In section 8.9.5, Vendor Responsibilities, of' the Request for Proposal, it is stated in PAC-24
          that ·•upon receipt of the r.equ<.!sted infonnat1on from the provjder, the Vendor must process the
          request and make a PA detennination within one· business day.•,

    o     Add1tiooally. P A:C-25 states that ~·ff the Vendor does not receive U1e requested infom1ation by
          the end of the f()urth business day, the Vendor must send a letter to the client stating that the PA
          request cannot be processed until the provider responds with the speci fie information necessary
          to complete the PA request. This letter must be sent w1thin one business day along with a copy
          of the initial letter to the provider that lists the specific information necessary to make the PA
          determination."

Two PA requests were not processed wJthin one business day after receiving the requested information
trom the provider. For two PA requests the vendor did not send a letter to the client notifying the
client of the need for additional information from his/her pro vider within four business days after the
Vendor notified the provider.

A delay in processing PA requests could mean a delay in a client receiving needed mc:dical care.
TMHP is subject to liquidated damages. per section 14.07 of the Service Agreement between HHSC
and TMHP. Section 14.07 states "The Parties agree .tl1at, except as limited by subsection (e} of this
Section 14.07, HHSC may ussess a liquidated damage of up to $1,000 per calendar day for each
instance of CONTRACTOR's breach or nonperfonnance of a duty that is not specified in the
Performance Standards and Measures," The liquidated tlama.ges are detetmin~d to be $5S,OOO.

                                      Calculation of Liquidated Damages

   Sample Item No.         Dates in Noncompliance No. of Days                X $LOOO/Day      Liquidated Damages

         PWC - t:t2            8131 /07 - 9/ 11.'()7                 12         $1 ,000.00          Sl2,000.00
         PWC - #4              8/22i07 - 8/23107                      2         $ IJ)00.00           $2.000.00
         PWC - #6              l/l2/08 - l/2W08                      l8         Sl ,000,00          $18,000.00
         PWC - #10            I 0/ l l /07 - J l/2107                23         $1 .000.00          $23.000.00
                                                                                      Total         $55,000 ..00




August 29. 2008                               Perfom1anc~ Audit Report                                     Page 6
                                          ·l'MHP PrioT Authorization Audit
                                      O lG Report. No, 08-70-52903191 -MA-03
 RecommeJJdatlon:

 TMH P .shuul<l 1.:~•nsider increasing training for current nnd futur\! PA staff to ensure that PA requests
 are processed in a timely manner. TMHP should puy the stat~ liquidated damages m the arrwunt of
 S55.000 in acc.ord~tnce with the Service Agreement between HHSC and TMHP.

 ~fanagement   Re.'ipott.w!:

TMHP PA leadership will conduct rt:trammg with PA staff to ensure that requests pended for
im:ompletl! information are pro~esscd in a timely manner. The retraining will include e review of the
PAC 24 r~quirement for pro~t!ssing requests within one bui'itness day upon receipt of U1e rcqucsrcd
infornHition and PAC 25 r~wremt!nl for sending the CH~rH Notification Lener for incomplete
requests. lncomplc:te request training for Ot!W PA employees will emphasize PAC 24 and PAC 25.

The Medidad administration contract indudes spec-ific liquidated damages for failure to meet service
level agre~mcnts . The LDs for prior authorization are addre~sed in Appendix D of the contract. The
contract sets forth a progressive and tailored remedies proces~ that TMHP and HHSC follow to address
perfonnanc~ deficien<;ies. The pro~ess must be completed us prescribed by the contract prior to the
detennination of liquiJated damages.


Flndln~   4 • USB Ports Arc Enabled oo Prior      Aulbo~ation      Systems For Employees Who \Vock
from Home

USS ports are ~nabled on the computer equipment used by the PA employees who work from home.
Rules and regulations include:

    o   HlPAA Security Rule. Section 164.JlO(d)(l): A cov~ed entity must, in accordance with
        Sl!ction l 64.306, "fmple1nent policies and procedures thar govern the receipt and removal of
        hardware und electronic media that contain electron1c protected health information into and out
        of a facility. and the movement of these items within the facilit y."

    o   Texas Medkard Healthcare Partnership (TMHP) lntbrmation Tcchnolob'Y Security Policies,
        Version 2. I. page 18, Section 1.6.2.b: "Workers perfonning, specific business functions
        indudlng data entry an<l home kt!ying will not save conti<lt;1ntial information data on a worker
        provided system or removahle storage lnedia. All TMHP, customer. provider, or dknt data
        must reside on a TMHP network server. 11

TMHP has riot <li:.;1.1hlt:d USB ports on PA systems used in homes of PA employees. Flash drives (a
fonn of removable medial could be used to copy. store, and transport electronic protected heaJtb
informatit)n without the knowledge or consent of TMHP manag"-ment.

Recommendation:
TMHP should disable USB ports to prevent the use uf tlash dri ves or external hard driv~~ to copy
electronic protected health infonnation.

Managemetu Respmue:
The USB ports a.re required for the current set up of the PA in-home workers' headsets used in
conjunctiC'ln with rhe Avaya CCQ softphone application. A USB adapkr is required to connect the
uset' !i head.scl to the computer. All f> A employees wht:thcr on-site or in-hoine are required to comply

                                       Pcrfomiance Audtl Rt:port                                  Page 7
                                     TMHP Prior Authorization Audie
                                  OIG Report No. 08-70-52903 l9l·M/\·03
 with all TMHP infomiation technology security policies, which state that they will not save
 confidential information dn.ta on a worker-provided system or- removnble storage media. However, in
 order to mitigate any risk, a tcm1inaJ server gateway solution is currently being researched1 which
 would prevent the download of darn from the TMHP network to the local machine or removable
 storage media over the VPN connection.




August 29, ~008                      Pe.rfonnance Audit Report                              Pageil
                                   TM.HP Prior Authorization Audjt
                                QIG Report No. 08-70-529"03 L9 l-MA-OJ
                               APPE~ll l XES




Augul>t 21), .:!OOR         Pertbrrnance Audi! R~port             Pagl! 9
                         l"Mf1P Prior Authorfaation Audi\
                      OIG Report No. 08-7Ch)l'l0J I<> J -MA .OJ
                                                                                      APPENDIX A
 OBJECTIVE, SCOPE, AND l\1ETHODOLOGY
 Objecti\'e

 To .det~n11i11e if ThtHP'.s prior authorization process ~omphes with contracttlal obligations. Texas
 Administrative Code, and federal regulations



 The initial scope of the audit of TMHP's prior authorization covered the period beginning S~tember
 l , 2006 and ending March 31 , 2008 . An engagement letter was issu<..>d to TMHP outlining the
 understanding of the OlG witb respect to the audit of the TMHP Prior Authorization Division for the
 period September I, 2006 to March 3 l, 200~ . The scope of procedu1es was based upon an assessment
 of ~isk and results of prejiminary audit cesting. The final scope of the audit for fieldwork testing was
 determined to be September 1, 2007 to February 29, 2008. Professional judgment was exercised in
 planning, t!xecuting an<l reporting the ~esulL~ of the audit.

 Methodology

The methodology employed throughout this perfonnahce audit included objectively reviewing various
forms of documentation including:

    •     TMHP e-OPM (electronic-Online Proccdufcs Manual)
    •     Request for Proposal part of the Medicaid administration contract
    •     Texas Medicaid Provider Procedures Manual (TMPPM)
    •     Quality Assuranct: reports
    •     Claims infonnation, and other to formation maintained by TMHP

The methodology also included:
   • Comparing policies an<l procedures to applicablt: Texas Administrative Codes (TAC) and
      contract requirements
   • Ohserving and i'nterviewing operational and administrative personnel
   • Performing tests using statistical random samples of data
   • Pcrt<.mning test using a judgmental sample of power wheelchair PA requests
   • Analyzing various data for aspects of practices, processes, and perfrmnancc

Criteria Used

   •      Texas Admini8trative Code (TAC'), Title l , Part 15
   •      The contract te1ms ideoiifying Prior Authorization vendor responsibihties
   •      TMHP e-OPM (electronic-Online Procedures Manual)
   •      2007 & 2008 Texas Medicaid Provider Procedure Manual (TMPPM)
   •      Health lnsuranct!:. Portability and A:ccountability A<.:t, Security Rule
   •      TMHP lnfom1atioo Technology Security PoJicies. Version 2.1




Augu~t   29, 200R                         Pcrfom1ance Audit Report                              Page 10
                                       TMHP Prior r\uthorizatfoft AudiL
                                    OlG Report No. 08-'70-5290J 19 l-MA-0}
 Team Members

 Juanita Henry. CHC, ClG, Deputy Jnspector General for C'ompliam.:e
 Mark Pochl, CPA. C'IA. CFE, ClSA~ Dif'e(.:tor Audit Sectiop
 Sandra Hardin, CPA. Audit Team Le<1<ler
 Richard Hut~hinson, CIA, CISA, IT Audit Teum Leader
 Kancttc Blomberg. CPA,. Lead Auditnr
 lkennalke Chidume, CPA. Auditor
 Trunara Stephens. Auditor
 Anthony Webb. Auditor
 John Zappa; IT Auditor
 Susan Phillips. Auditor




Augusc 19, JOOH                       P~rfonnance Audif Report          Page l L
                                   fMHP Prior Authorization Audit
                                oro Rep(lTI No. 08-70-52903191 -MA-0)
                                                                              APPENDIXB

 REPORT DISTRIBUTION

 Texas Medkaid Healthcare Partnership

 Rick Pope, Vice President. Managing Director
 Texas Medicaid Healthcare Partnership
 12365-A Riata Trace Pkwy, Building 9
 Austin, Texar-; 78727

Erik Holt, Prior Authorization Director
Texas Medicaid Healthca.n: Partnership
12365-A Riata Trace Pkwy, Building 9
Austin, Texas 7R727

Health and Human Services Commission

l'vfr. Albert Hawkins, Executive Commissioner
Texas Health and Human Services Commission
4900 North Lam.a r Blvd.
Austin..- Texas 7875 ?
Mail code BH- 1000

Dr. Charles Bell, Deputy Executive Commissioner
Texas Health anQ Human Services Commission
4900 North Lamar Blvd.
Austin. Texas 78751
Mail code BH- 1000

Mr, Chris Traylor. Medicaid and CHIP Associate Commissioner
Texus Health and Human Services Commissioner
l 1209 Metric Blvd.
Austin, Texas 78758
Mail code. H-100

Mr. Billy Millwee, Deputy Medicaid/CHIP Director for CJajms Administrator Operations
Texas Health attd Human Services Commissioner
11209 Metric Blvd.
Austin, Tex-as 78758
Mail c<>de H-390

Mr. David M , Griffith, CPA. CIA, Director Internal Audit
1 exas Health and Human Services Cum.mission
4900 North Lamar Blvd.
Austin. Texas 78751
Mail code BH-1600




August 29, 200S                       Perfonnance Audit Report                         Page l1
                                    TMHP Prior Autl\orization Audit
                                 OIG Report No, 08-70~52903191-MA-OJ
                       Tab D
Providers’ Plea in Interventions in Cause No. D-1-GV-14-000581
                               CAUSE NO. D-1 -GV-14-000581

ATLAS DENTAL, LP, AND                               §       IN THE DISTIUCT COURT
DR. IDEU HUYNH,                                     §
                lNTERVENORS,                        §
                                                    §
vs.                                                 §
                                                    §
THE STATE OF TEXAS,                                 §
               PLAINTIFF,                           §
                                                    §       53rd JUDICIAL DISTRICT
vs.                                                 §
                                                    §
XEROX CORPORATION; XEROX                            §
STATE HEALTHCARE, LLC; ACS                          §
STATE HEALTHCARE, LLC, A XEROX                      §
CORPORATION                                         §
              DEFENDANTS.                           §       TRAVIS COUNTY, TEXAS

                                 PLEA IN INTERVENTION

TO THE HONORABLE JUDGE OF SAID COURT:

        NOW COMES, Atlas Dental, LP and Dr. Hieu Huynh, hereinafter lntervenors, and file

this Plea in Intervention, and in support hereof, would respectfully show the Court the following:

                                     I. Parties and Service

l.      Plaintiff, State of Texas, has appeared in this action and may be served with a notice of

this Plea by sending a copy to its attorney, the Attorney General of Texas, Greg Abbott, at P. 0.

Box 12548, Austin, Texas 78711-2548.

2.      Defendant Xerox Corporation is a corporation organized under the laws of New York has

agreed to accept service with process upon its Attorney in this suit. Defendant Xerox State

Health Care, LLC, f/k/a ACS State Healthcare, LLC (misnamed by the State of Texas as ACS

State Healthcare, LLC, a Xerox Corporation is a wholly-owned subsidiary of Xerox Corporation

organized under the laws of the State of Delaware with Texas offices at 2828 N. Haskell Ave.,

Dallas, Texas 75204, and has agreed to accept service with process upon its Attorney in this suit.


Plea in Intervention
Page 1 of25
Defendant Xerox Corporation acquired Defendant ACS in 2010. On infonnation and belief,

ACS State Healthcare, LLC, changed its name to Xerox State Healthcare, LLC, on April l, 2012.

Defendants are referred to hereinafter as "Xerox Defendants."

3.         Atlas Dental, LP, (hereinafter ATLAS) is an approved Medicaid provider. ATLAS can be

served through the undersigned counsel.

4.        Dr. Hieu Huynh 1 is a licensed Texas dentist, approved Medicaid provider, and the owner

of ATLAS. Dr. Hieu Huynh can be served through his undersigned counsel.

                                            II. Jurisdiction and Venue

5.         This Court has subject-matter jurisdiction in that the amounts sought by lntervenors from

all parties (both Plaintiff and Defendants) are in excess of the minimal jurisdiction limits of this

court. Tntervenors affirmatively plead that this suit is not governed by the expedited-actions

process in TEXAS RULE OF CrvIL PROCEDURE 169 because intervenors seek monetary relief over

$100,000.

6.         This Court has jurisdiction over all parties in this petition because:

           a) The State has waived sovereign immunity and is subject to lntervenors' claims;

           b) This Court has jurisdiction over Xerox Defendants because each Defendant does

                business in the State of Texas and committed the unlawfu l acts alleged in this petition

                in whole or part in Texas.

7.         Venue is proper in Travis County under TRCP §15.020 because this suit involves a

"major transaction"; Venue is permissive under TRCP §I 5.035(a) because Intervenor asserts

claims for breach of contract. Venue is proper pursuant to TRCP §15.02 because all or a

substantial part of the events or omissions giving rise to the claim occurred in Travis County.

Many of the unlawful acts committed by the State and Xerox Defendants were committed in

1
    For the sake of simplicity, the lntervenors will be collectively referred to as "ATLAS" unless expressly noted.

Plea in Intervention
Page 2 of25
Travis County, including the making of false statements and misrepresentations of material fact.

                               ill. Intervenors' Interest in the Suit

8.       Intervenors ATLAS and Dr. Hieu Huynh have a judicial interest in the matters and

controversy in this litigation. The relationship between Intervenors, the State as the Plaintiff and

the Xerox Defendants is a tripartite arrangement necessitating that, in the interest of judicial

economy and justice, all claims be bound and subsumed into one cause of action. Upon

infonnation and belief, lntervenors were initially sued by the State in a qui tam action wherein

the State alleged that Lntervenors defrauded the State. The State has elected to pursue its

remedies against the lntervenors in an administrative hearing. Now, the State has sued Xerox in

State Court on the same facts, alleging that Xerox has committed fraud against the

State. Intervenors have c laims against both the State and Xerox. It is assumed that Xerox will

have claims against the State, and perhaps allege claims against the lntervenors. All of the

different parties' claims are inextricably intertwined, as they relate to [ntervenors' submission of

prior authorization requests to Xerox, the handling of those claims by the Xerox Defendants, the

State's handling and oversight of its agent Xerox in Xerox's performance of its contractual and

legal duties, and State's subsequent legal action against the Intervenors for services approved by

Xerox.

                                             IV. Facts

What is Prior Authorization?

9.       Texas Medicaid requires that orthodontic services be independently and objectively

scrutinized before the State consents to treatment and payment. Prior authorization is the

mechanism the State uses to determine the medical necessity of          non~emergency   orthodontic

items/services prior to delivery of those items/services. Pursuant to Texas Health and Human



Plea in Intervention
Page 3 of25
Services Commission (hereinafter "HHSC") rules, Texas Medicaid greatly restricts when it will

pay for orthodontic services:

       Orthodontic services for cosmetic reasons only are not a covered Medicaid
       service. Orthodontic services must be prior authorized and are limited to
       treatment of severe handicapping malocclusion and other related conditions as
       described and measured by the procedures and standards published in the
       [TMPPM2].

25 TEX. ADMIN. CODE §33.7 1 (emphasis added). Prior authorization is a statement of assurance

to the orthodontic provider that, absent an intervening disqualifying factor, the delivery of the

requested orthodontic serv ice has been deemed by Xerox to be medically necessary, and

therefore approved by the State.

I 0.    The prior authorization process is straightforward. Texas Medicaid requires that a dental

provider send documentation (x-rays, cephalographs, photos, etc.) regarding the patient's

orthodontic condition to Xerox for review. In addition, the 01thodontic provider submits his

professional opinion of the patient on a Handicapping Labio-lingual Deviation index (HLD)

score sheet. Xerox knew providers relied entirely on the prior authorization process because

approval was a mandatory prerequisite to provid ing orthodontic services and being paid. Once

Xerox issued its prior authorization decision, the decision was not appealable by the provider.

11.     The HLD scoring system combines a number of treatable orthodontic conditions into an

index. HLD score sheets use a mix of objective and subjective conditions to detennine whether a

Medicaid patient qualifies for orthodontic services. The fact that the HLD score sheet requires

both objective and subj ective fmdings highlights the importance of Xerox performing a thorough

prior authorization review.

T he Histor y of O rthodontic Prior Authorization.


2
 "TMPPM" is the Texas Medicaid Provider Procedures Manual, which is issued yearly by the HHSC and provides
valuable guidance to Medicaid providers.

Plea in Intervention
Page 4 of25
12.    The process for reviewing and approving orthodontic prior authorization requests pre-

dates the defendant Xerox's handling of Medicaid claims processing. The National Heritage

Insurance Corporation (NHIC) was responsible for reviewing prior authorization requests before

Xerox assumed the contract in January 2004. Starting January l, 2004, Xerox acted as an

independent contractor, and was a contracted agent of the State, under the contract with HHSC.

Xerox was responsible for reviewing each orthodontic service request, and Xerox was further

charged with the respons ibility to grant or deny each prior authorization req uest per the program

requirements. The resu lt was that Xerox had the final say in detem1ining the medical necessity of

each request for orthodontic services.

13.    Prior to assuming the NHIC contract, and for a period ohime after assuming the contract

from NHIC, Xerox received training from NHIC personnel regarding the proper method for

receiving and processing orthodontic prior authorization requests. NI-llC personnel explained

how and why the review of each prior authorization submission was important, and walked

Xerox through the process. Despite its training from NHIC, Xerox had no intention of following

the prior authorization system that had been in place for years, nor d id Xerox intend to otherwise

meet the prior authorization requirements set out in its contract, the TMPPM and required by

state law.

Xerox rejects its contractual responsibilities.

14.     When Xerox took over the contract in 2004, it immediately abandoned the prior

authorization review process that had been setup by NHTC. Xerox never intended to fulfill its

orthodontic prior authorization responsibi Iities to HHSC. From 2004 to 20 11 , Xerox continually

misrepresented that it was acting in compliance with its contractual duties.

IS.     It is now known that Xerox failed to adequately staff their prior authorization division



Plea in Intervention
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with knowledgeable medical professionals. Xerox employed only one licensed dentist from 2004

through 20 I I , which was far short of the manpower necessary to handle the review of tens of

thousands of orthodontic prior authorization requests every year. Xerox could not reasonably

have expected to handle such a workload by employing only one dentist.

Xerox potentially comm its thousands of violations.

16.     It is believed Xerox allowed "dental specialists"- unlicensed, unqualified individuals-

to render prior authorization opinions regarding the medical necessity of requested orthodontic

services. The "dental specialist" approvals were not reviewed or ratified by Xerox's licensed

dental director or another qualified dental professional. These actions not only violated Xerox's

contractual obl igations, they may have also violated other Texas law such as the Dental Practice

Act. 3 lt is believed these unlicensed Xerox "specialists" rendered tens of thousands of prior

authorization approvals/medical opinions in violation of Texas law.

17.      Xerox was paid by the state for each prior authorization decision that was made. It is

believed that Xerox employed unlicensed "specialists," rather than licensed Texas dentists, as a

profit generating measure.

18.      From January 2005 through February 2012, Intervenor submitted prior authorization

requests, as required, to Xerox for a detennination of med ical necessity. Unbeknownst to

[ntervenor, Xerox's dental specialists-not the dental director- approved almost all of

Intervenor's requests. Xerox's prior authorization approvals were promises that:

         a) the requested orthodontic services were medically necessary, and/or

         b) the approval had been issued by a licensed dentist, and/or


3
  Texas Occupations Code §251.003 prevents unUcensed individuals from diagnosing conditions of the human teeth
and mouth. Section 256.001 states that a person may not practice dentistry without a license. Thus, state law requires
that opinions regarding medical necessity of orthodontic treatment must be made by licensed dentists. Section
264.151 prescribes penalties for certain violations of the Dental Practice Act.

Plea in lntervention
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       c) the approval was an actual and legitimate dental diagnosis, and/or

       d) the requested orthodontic services were allowable under Texas law and as permitted

by Medicaid policy, the TMPPM, and HHSC rules, and/or

       e) a proper, thorough and legal review had been made, and/or

        t) future orthodontic services would be properly reimburseable to lntervenors, absent

some intervenfog disqualification (such as the patient's ineligibility).

19.     Because Xerox was charged with determining medical necessity, and because prior

autho rization approval was a mandatory prerequisite to furni shing services, the promises were

material. lntervenors expected performance of these promises. lntervenors relied on Xerox.

Further, Xerox promised that its subsequent payments to lntervenors (after the services had

actually been delivered) were made because the services had been, in fact, properly approved as

medically necessary. Each prior authorization approval represents a separate violation of the law

if Xerox 's approval was issued illegally and/or in violation of its contractual obligations.
Xerox actively concealed its potentially illegal activity.

20.     Xerox withheld the truth regarding its prior authorization program. In an attempt to

publicly appear consistent with NHIC's prior authorization process, Xerox continued to require

that dental providers (such as Intervenor) submit all supporting documentation for each HLD

score sheet. lt is now believed that, incredibly, Xerox did nothing with that documentation, other

than assure that it had been submitted by the provider. It is believed that Xerox's specialists were

instructed to forward to its dental director only those requests lhat had scored below the

threshold for orthodontic services (i.e. below 26 points on the HLD score sheet), or had some

provider j usti fi cation attached. As a result, only I 0% of the orthodontic prior authorization

requests were actually forwarded to Xerox's one licensed dentist.             Xerox 's actions were



Plea in Intervention
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calculated to make Xerox appear compliant with its contract and HHSC policies, while Xerox

knew that its actions we re entirely inconsistent with the letter and spirit o f its obligations.

Effectively, then, Xerox's actions not only damaged the Medicaid program directly by approving

services without determining their medical necessity, but Xerox 's deception also exacerbated the

problem by failing to give providers guidance regarding the proper standard for medical

necessity, thus caus ing these providers substantial damages.

2 1.      For the past ten years, Xerox has continued to publicly represent to the world that it was

fulfilling its contractual and legal responsibilities. Based on Xerox's representations that it was

fulfilJing its duties to the State, Xerox had its contract with HHSC repeatedly renewed from 2004

through the present. Each year that Xerox had its contract renewed, it represented that it would

fulfill its contractual obligations and abide by Texas law requiring that decisions about medical

necessity be rendered onl y by licensed dentists. Xerox made those representations knowing that

it had not done so in the past, and had no intention of changing its procedures to do so in the

future.

The Frew decisio n magnifies Xerox's acts.

22.       In September 2007, after fifteen years of litigation on the subject, Texas was ordered to

implement a corrective action plan that increased the Medicaid reimbursement rates to all dental

providers. That plan was required pursuant to the Frew case 4 , which was a 1993 c lass-action

lawsuit against the HHSC alleging that Texas' Medicaid reimbursement rates were so low that

they prevented indigent children from receiving timely, comprehensive health care .



4
 Frew v. Gilbert, 109 F. Supp. 2d 579 (E.D. Tex. 2000) vacated sub nom. Frazar v. Gilbert, 300 F.3d 530 (5th Cir.
2002) rev'd sub nom. Frew ex rel. Frew v. Hawkins, 540 U.S. 431, 124 S. Ct. 899, 157 L. Ed. 2d 855 (2004) and
affd in part, appeal dismissed in part sub nom. Frazar v. Hawkins, 376 F.3d 444 (5th Cir. 2004); Frew v. Hawkins,
401 F. Supp. 2d 619 (E.D. Tex. 2005) aff'd sub nom. Frazar v. Ladd, 457 F.3d 432 (5th Cir. 2006); Hawkins v.
Frew, 549 U.S. 111 8, 127 S. a. !039, 166 L. Ed. 2d 714 (2007).


Plea in Intervention
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23.     In response to Frew 's corrective action plan, the 2007 Texas Legislature allocated $707

million ($1.8 billion in state and federal funds combined) to increase medical and dental

reimbursement rates. The increase in dental reimbursement rates was intended to entice dentists

to become Medicaid providers. It worked. The state raised payment rates for dental services, and,

as a result, the number of dentists participating in Medicaid increased from 45.4% in 2007 to

63.4% in 20 l 0. As expected indeed, as intended spending on Texas's dental services increased

dramatically.

24.     Although the number of prior approval requests increased by 240% between 2007 and

20 L0, Xerox continued to employ only one dentist. That dentist was neither tasked with nor

responsible for supervising the clerical specialists that were issuing the approvals.

25.     By 20 I0, orthodontic spending under Texas' Medicaid program had skyrocketed. Xerox

was the sole entity responsible for overseeing this increase, because it was the sole gatekeeper

for the approval and payment of orthodontic services. Although the Texas Legislature had

increased funding to attract dentists into the Medicaid program, all of the budgeted funds were

required to be spent only on medically necessary services.

The Office of Inspector General seeks recovery from Medicaid providers.

26.     In early 20 I 1, a series of news stories began highlighting the large amount of money

being spent on orthodontics in Texas. In July 20 I 1, the Federal government notified Texas of its

intent to audit whether Texas' prior authorization process was ensuring that only medically

necessary orthodontic cases were being approved and paid. With the prospect of a federa l

clawback action looming against Texas because of Xerox's prior authorization failures, the

Texas Office of fnspector General (hereinafter "State") took a drastic step. Beginning in 2011,

the State generated a list of the top Medicaid orthodontic billers and placed them on "payment



Plea in Intervention
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hold." Intervenor was one of those providers.

27.    Given Intervenors' proximity to some of the state's poorest children, and the mandates of

the Frew decision, Intervenor served a large Medicaid patient population. Because it served a

large Medicaid population, it submitted a large number of prior authorization requests to Xerox

from 2004 through 20 I 1.

28.     fntervenors did not know that Xerox was failing to perform a true and accurate review for

medical necessity. lntervenors relied on Xerox's prior authorization approvals to confirm that

dentists' analysis was proper and consistent with Medicaid standards and requirements.

29.     Again unbeknownst to Intervenors, State audits in 2008 and 2012 concluded that most, if

not almost all, of the prior authorization requests for patients with HLD scores of 26 or greater

(indicating medical necessity) had not been actually "evaluated" at all by Xerox. These State

audits made the Federal government's pending audit especially dangerous to Texas, because the

2008 and 2012 audits were admissions that Xerox had been approving and paying claims that

may not have met the federal standards for prior authorization. T hus the State, through the

Attorney General, concluded that a true finding of medical necessity had in reality not occurred.

The Attorney General claimed that billing for services that are not necessary is fraud, despite

Xerox's prior authorization approvals.

30.     It is now believed that rather than prosecute Xerox for its failure to properly evaluate

dentists ' prior authorization requests, the State and the Texas Attorney General protected Xerox.

This protection included the State failing to allow TMHP to hire additional medically licensed

staff, and in 2008-2009 telling TMHP to continue its prior authorization practices. Although the

Attorney General took immediate action against the providers, the Attorney General refused to

hold Xerox accountable for its orthodontic "approvals," its repeated contractual failures, or its



Plea in Intervention
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violation of State law. Instead, the Attorney General made fraud allegations against each of the

top 25 dental providers, including Intervenor, which has caused more injury and damages to

lntervenors. Stated d ifferently, Xerox issued its approvals through a process that gutted the

State's belief in che accuracy of Xerox's decision, and the Texas Attorney General punished the

providers instead of Xerox.

3 L.     Because the acts/omissions of Xerox so                      undermined       the   process,     the   State

eventuallyinstituted a "payment hold" against Intervenor. A payment hold temporarily freezes

future Medicaid payments to a provider, despite the provider's ongoing participation in the

Medicaid program. The payment hold against lotervenor was issued pursuant to what the State

called a "credible allegation of fraud" regarding intervenor's orthodontic prior authorization

requests. The State placed a I00% payment hold against Intervenor's orthodontic billings.

32.      At the time the Attorney General began prosecuting Intervenor and similarly situated

Medicaid providers, it knew Xerox, not Intervenor, had the sole authority and responsibility to

authorize orthodontic services and payments. The Attorney General knew that the State's audits

of Xerox in 2008 and 2012 had concluded that Xerox was violating its contract with the State,

violating its own State-approved policies and procedures, and violating State law. Nevertheless,

the Attorney General continued to only prosecute dental providers like the Intervenor; the

Attorney General refused to hold Xerox responsible. ln fact, in one shameless and brazen

demonstration of State' s unwavering protection of Xerox, the Deputy Director of Texas' Office

of the Inspector General testified in a hearing that Xerox' s acts and omissions were so egregious

they were outside the course and scope of Xerox's agency with State.5 Upon information and



' Incredibly, that testimony came in an administrative proceeding in which the State was seeking $8 million from a
dental provider for following Xerox's instructions to provide braces to the provider's patients. The idea that the
State could not hold Xerox responsible for its contractual obligations because Xerox had done such a poor job that it
was acting outside of its contract is a novel and imaginative reason not to prosecute Xerox.

Plea in Intervention
Page 11 of25
belief, the State and the Attorney General protected Xerox for over 6 years fearing that revealing

the State's culpability would subject the State to a federal clawback for hundreds of millions of

dollars. Instead, the State and the Attorney General pointed at the dental providers.

33.     Ultimately, the evidence of Xerox's failures, and the State's refusal to correct Xerox for

over 6 years, became too much to hide. Three months after some providers filed suit against

Xerox, and fo llowing a series of news stories questioning why Xerox had not suffered for its

failures, the Attorney General reversed course. On May 9, 2014, the State, through the Texas

Attorney General, filed this lawsuit against Xerox for fraud, basically mirroring the suit filed

approximately I 00 days earlier by similarly situated providers. The State's claims in this fraud

lawsuit include admissions that the State knew as early as 2006 that Xerox's actions were

improper.

34.     As a result of the payment hold, Intervenor was required to make significant financial

concessions and changes to its business. Intervenor also engaged legal counsel to defend itself

from the State's claims, at a significant expense that continues today.

35.     The State 's allegations against lntervenor are rooted in two assumptions. First, the State

assumes Intervenor's prior authorization requests were not properly vetted by Xerox; that is,

Xerox approved Intervenor's requests without knowing whether approval was actually proper.

Because Xerox is not a party to lntervenor's administrative case, Intervenor is prevented from

determining whether Xerox did, in fact, perform a proper review of lntervenor's prior

authorization requests. By intervening in this lawsuit, lntervenor seeks to address that question,

and finally detennine whether Xerox reviewed Intervenor's requests as required by its contract

and the law.

36.     Regarding the State's second assumption, the State alleges some of lntervenor's requests



Plea in Intervention
Page 12 of25
were approved when, in fact, they should have been denied. Intervenor denied that assertion in

the administrative case, and Intervenor continues to deny that c laim here. All services provided

to Intervenor's patients were actually medically necessary, regardless of what Xerox decided and

in any event under Medicaid guidelines once the authorization was approved, Intervenor was

required to provide the services.

37.     The State continues to aggressively fight any allegation or affirmative defense that could

result in Xerox being held accountable for its part in these HLD scoring cases, despite the State's

contentions in the District Court case to the contrary. Damages continue to accrue.

                                       V. Causes of Action

A. Jntervenors ' Claims Against Xerox

      Common Law Fraud (Fraudulent Misrepresentation and Fraudulent Inducement)

38.     Intervenor re-alleges and incorporates the above facts and allegations as if fully set out

herein. Xerox's prior authorization approvals were fa lse representations made to Intervenor. It is

believed Xerox knowingly issued these prior authorizations to Intervenor because Xerox knew

that it was approving requests without a proper medical review, and/or because it approved the

prior authorization requests without any knowledge of their truth. It is believed Xerox intended

for rntervenor to rely on the approvals as a prerequisite fo r prov iding the requested services.

Approval was material because it was a mandatory prerequisite for payment. Intervenor actually

and justifiably relied on Xerox's fraudulent approvals.

39.     Xerox's approvals induced Intervenor to continue to grade subsequent HLD requests in

the same o r similar manner, and led Intervenor to believe that their requests were consistent with

Medicaid standards and requirements.

40.     Xerox's fraudu lent approvals caused injury to Intervenor. As a resu lt of Xerox's actions,



Plea in Intervention
Page 13 of25
Intervenor submitted requests for payment and Xerox actually paid for those services, Intervenor

was placed on payment ho ld, Intervenor is fo rced to defend itself in an administrative payment

hold hearing, and Intervenor is facing administrative claims by HHSC for repayment (including

claims for treble damages and attorney fees). Intervenor's reputation and business have suffered

severe injury. Intervenor seeks recovery of actual and exemplary damages, interest, court costs,

and attorney fees.

                          Breach of the Xerox-State of Texas Contract

41.      Intervenor re-alleges and incorporates the above facts and allegations as if fully set out

herein. In the alternative, Xerox's actions constitute a breach of Xerox's contract with the State

for the benefit of Intervenor. Xerox's contract with the state required that it conduct a proper,

thorough and legal review of prior authorization requests for the purpose of determining medical

necessity. To that end, Xerox should have employed a licensed dentist.

42.      Xerox was an agent of the State of Texas engaged specifically for the purpose of

determining medical necessity. The third party beneficiaries of that Xerox-State of Texas

contract were Medicaid patients and Intervenor. The patients were entitled to receive orthodontic

services that were medically necessary. Intervenor was responsible for actually delivering the

orthodontic services that Xerox had deemed medically necessary. Thus, Intervenor was a third

party beneficiary that relied on Xerox's approvals.

43.      Xerox breached its contract by, inter alia, failing to provide qualified staff; possibly

violating Texas law; permitting non-dentists to make detenn inations of medical necessity; and

issuing medical opinions without conducting a reasonable and prudent examination of evidence.

The breaches were material, and recurred across many different Medicaid patients and for many

years.



Plea in Intervention
Page 14 of25
44.    Xerox's actions proximately caused Jntervenor's injury. Intervenor's injuries were

caused-in-fact by Xerox's actions, and they were foreseeable. Because Xerox's prior

authorization was a necessary prerequisite to providing services, lntervenor relied entirely on

Xerox's determinations regarding medical necessity; thus, Xerox's actions were the direct factual

cause of Intervenor's injuries. Xerox's actions were foreseeable in that a person of ordinary

intelligence should have anticipated that issuing a decision without actually reviewing or

considering the evidence (x-rays, photos, models, etc.) would eviscerate the credibility and

reliabiJity of the decision. Once the State assumed that Xerox's approvals were not trustworthy,

it was foreseeable that the State would demand repayment, and/or would require Intervenor to

independently do Xerox's job after the fact by proving that payment was proper because the

services were medically necessary and reimbursable under Texas Medicaid law.

45.     Intervenor suffered and continues to suffer significant damage. Intervenor seeks damages

that would have given the lntervenors the benefit of the bargain by putting them in as good a

position as they would have been in if the contract had been perfonned.         Intervenor seeks

reliance interest damages to restore the expenditures Intervenor made in reliance on Xerox's

contract with the state and the approvals that Xerox made under that contract. Intervenor also

seeks damages for its restitution interest to restore money sought by the Office of the Inspector

General from Intervenor. Such damages wou ld put the lntervenors in as good a position as it

would have been in if the contract had been properly fulfilled. In addition, Intervenor seeks

liquidated damages as set out in the Xerox-State of Texas contract. Intervenor has engaged legal

counsel to defend itself from the State's charges, and those legal expenses continue today.

Intervenor has incurred benefit of the bargain damages, out-of-pocket damages, lost profits, lost

future profits, loss of credit, and Joss of goodwill.   Intervenor seeks recovery of actual and



Plea in Intervention
Page 15 of25
exemplary damages, interest, court costs, and attorney fees.

                          Breach of Contract (Promissory Estoppel)

46.     Intervenor re-alleges and incorporates the above facts and allegatio ns as if fully set out

herein. In the alternative, Xerox's actions constitute promissory estoppel.

47.     Xerox's prior authorizations constitute promises to Intervenor in numerous ways.

Because prior authorization was a prerequisite to furnishing services, and because Xerox was the

entity charged with discharging prior authorization duties, Interveno r reasonably, substantially,

and foreseeab ly relied on Xerox's promises.

48.     Intervenor suffered and continues to suffer significant damage. [ntervenor suffered

reliance damages by investing time, labor, equipment, and o rthodontic appliances in each

Medicaid patient that Xerox approved. Intervenor has engaged legal counsel to defend itself from

the State's charges, and those legal expenses continue today. Intervenor has been required to do

Xerox's job after the fact-namely, demonstrate that the services were medically necessary and

properly reimbursable under Texas Medicaid law. lntervenor has incurred benefit of the bargain

damages, o ut-of-pocket damages, lost profits, lost future profits, loss of credit, and loss of

goodwill. All of these damages were directly and/or prox imately caused by Xerox's promises.

Intervenor seeks recovery of actual and exemplary damages, interest, court costs, and atto rney

fees.

                            Negligent Hiring/Negligent Supervision

49.     Intervenor re-alleges and incorporates the above facts and allegations as if fully set out

herein. Xerox's actions constitute negligent hiring and/or negligent supervision. Xerox was

required to render medical diagnoses. To that end, Xerox was required by law to employ a

licensed dentist to render a diagnosis regarding medical necessity. Xerox was also required by



Plea in Intervention
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law to properly supervise its employees to make sure diagnoses were made only by licensed

dentists.

50.     Xerox knew or should have known that decisions regarding medical necessity can only

be rendered by licensed personnel. Texas Occupations Code section 251.003 defines the practice

of dentistry to include a diagnosis of the human mouth and/or teeth; section 256.00 1 states that a

person may not practice dentistry without a license; section 264.1 5 l makes it a third-degree

felo ny to practice dentistry without a license.

5 1.    Xerox's actions proximately caused Intervenor's injury. lntervenor's injuries were

caused-in-fact by Xerox's actions, and they were foreseeable. Because Xerox's prior

authorization was a necessary prerequisite to providing services, Intervenor relied entirely on

Xerox's determinations regarding medical necessity; thus, Xerox's actions were the direct factua l

cause of Intervenor's injuries. Xerox's actions were foreseeable in that any person of ordinary

inte ll igence should have anticipated that paying Intervenor for services that have not properly

been determ ined to be medically necessity would precipitate a demand for repayment, and/or

would require Intervenor to independently do Xerox's job after the fact by proving that payment

was proper because those services were medically necessary and were reimbursable under Texas

Medicaid law.

52.     fntervenor suffered and continues to suffer significant damage. Intervenor suffered

re liance damages by investing the cost of services for each Medicaid patient that Xerox

approved. Intervenor has engaged legal counsel to defend itself from the State's charges, and

those legal expenses continue today. Intervenor suffered and continues to suffer significant

damage to its reputation, business, referral base, earnings and earning power. Intervenor has

suffered inconvenience and loss of enjoyment of li fe in that he has had to dedicate significant



Plea in Intervention
Page 17 of25
mental and personal capital to doing Xerox's job. Intervenor has suffered exemplary damages

because Xerox's conduct was grossly negligent, outrageous and malicious, and such conduct

should be penalized so that it is deterred in the future. Intervenor seeks recovery of actual and

exemplary damages, interest, court costs, and attorney fees.

                                           Negligence

53.     Intervenor re-alleges and incorporates the above facts and allegations as if fully set out

herein. Xerox 's actions constitute negligence and gross negligence. Xerox was required to render

medical diagnoses. To that end, Xerox had a duty to employ a licensed dentist to render a

diagnosis supporting or denying medical necessity. Xerox had a duty to assure that the personnel

had appropriate education, training and experience to render such a finding. Xerox had a duty to

review the supporting prior authorization documentation (such as x-rays and photos) to

determine whether the requested services were medically necessary.

54.     Xerox's actions breached the standard of care because Xerox: failed to provide prior

authorization staff that were properly licensed, qualified and experienced dental professionals;

violated the law, specifically the Dental Practice Act, by permitting non-dentists to make

determinations of medical necessity, and; issued medical opinions (prior authorizations) without

conducting a reasonable and prudent examination of evidence.

55.     Xerox's actions proximately caused lntervenor's injury. intervenor' s injuries were

caused-in-fact by Xerox 's actions, and they were foreseeable. Because Xerox's prior

authorization was a necessary prerequisite to providing services, Intervenor relied entirely on

Xerox's determinations regarding medical necessity; thus, Xerox's actions were the direct factual

cause of Intervenor's injuries. Xerox's actions were foreseeable .in that any person of ordinary

intelligence should have anticipated that paying Intervenor for services that have not properly



Plea in Intervention
Page 18 of25
been detennined to be medically necessity wou ld precipitate a demand for repayment, and/or

would require Intervenor to independently do Xerox 's job after the fact.

56.     Intervenor suffered and continues to suffer significant damage to its reputation, business,

referral base, earnings and earning power. Intervenor has engaged legal counsel to defend itself

from the State's charges, and those legal expenses continue today. Dr. Hieu Huynh has suffered

inconvenience and loss of enjoyment of life in that he has had to dedicate significant mental and

personal capital to doing Xerox's job. Intervenor has suffered exemplary damages because

Xerox's conduct is grossly negligent, outrageous and malicious, and such conduct should be

penalized so that it is deterred in the future. lntervenor seeks recovery of actual and exemplary

damages, interest, court costs, and attorney fees.

                                  Negligent Misrepresentation

57.     Intervenor re-alleges and incorporates the above facts and allegations as if fully set out

herein. Xerox's actions constitute negligent misrepresentation. Xerox's actions constitute

mi srepresentations to Intervenor in numerous ways. Because, inter alia, prior authorization

approval was a prerequisite to furnishing services, these representations guided and controlled

Intervenor's responses. Intervenor justifiably relied on these representations. Further, Xerox

represented that its prior authorization approvals were dispositive of medical necessity;

Intervenor expected that, once approved, no further inquiry into the medical necessity of the

services would be required. Further, Xerox represented that its subsequent payments to

Intervenor (after the serv ices had actually been delivered) were made because services had been,

in fact, properly approved as medically necessary.

58.     Xerox did not exercise reasonable care or competence in making its determinations and

representations. Xerox knew or should have known that its representations were false.



Plea in Intervention
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59.       Because prior authorization was a prerequisite to furnishing services, and because Xerox

was the entity charged with discharging prior authorization duties, Intervenor reasonably,

substantially, foreseeably, and justifiably relied on Xerox's representations.

60.       Intervenor suffered and continues to suffer signifi cant damage. Intervenor suffered

reliance damages by investing time, labor, equipment, and orthodontic appliances in each

Medicaid patient that Xerox approved. Intervenor has engaged legal counsel to defend itself from

the State's charges, and those legal expenses continue today. Intervenor has been required to do

Xerox's job after the fact. Intervenor has incurred benefit of the bargain damages, out-of-pocket

damages, lost profits, loss of credit, and loss of goodwill. All of these damages were directly

and/or proximately cause by Xerox's negligent misrepresentations. Jntervenor seeks recovery of

actual and exemplary damages, interest, court costs, and attorney fees.

                       Gross Negligence I Misapplication of Fiduciary Property

6 I.      Intervenor re-alleges and incorporates the above facts and allegations as if fully set out

herein. Plaintiffs plead Xerox committed gross negligence and/or the misapplication of fiduciary

property which would entitle Intervenors to unlimited punitive damages.

B. Intervenors' Claims Against The State of Texas

                                   Waiver of Sovereign Immunity

62.       Intervenor re-alleges and incorporates the above facts and allegations as if fully set out

herein.     For a number of reasons, the State has waived sovereign immunity for claims by

Intervenor, including the facts that the State brought, threatened and/or has taken civil and/or

administrative action against lntervenors, and because the State has filed suit against Xerox.

                                    Conspiracy/Joint Enterprise

63.       Intervenor re-alleges and incorporates the above facts and allegations as if fully set out



Plea in Intervention
Page 20 of25
herein. In the alternative, fonner Deputy Inspector General Jack Stick has stated publicly that

acts and omissions of Xerox were so egregious as to be outside the course of scope of Xerox's

agency relationship with the State. Assuming same to be true, then the State conspired with

Xerox to breach the contract or allow the breach to continue, conspired to withhold funds from

Intervenor but not Xerox, and conspired to falsely accuse Intervenor of fraud/crime.

64.    The State conspired with Xerox to allow Xerox to violate its various contractual duties.

The State permitted Xerox to process as many prior authorizations as possible without the

required clinical dental review and without using medically knowledgeable personnel. The State

conspired with Xerox to allow Xerox to violate State and Federal law. The State and Xerox

created a scheme to rubber stamp and/or allow no legitimate review of prior authorizations

submitted by the dentists. The conspiracy was committed with the intent to shift blame from the

State and its agent, improperly blame the lntervenors, and enrich the State and Xerox. By

recouping money from providers that were not actually to blame, the State and Xerox hoped to

limit their own liability in the event of a Federal clawback action, and/or respond to unflattering

news reports of Texas' payments for Medicaid braces. This agreement and ensuing acts of the

party to blame the dentist providers for their own improper acts and omissions is a proximate

cause of the injury to lntervenors.

                           Not Liable for Illegal Acts of Third Party

65.     Intervenor re-alleges and incorporates the above facts and allegations as if fully set out

herein . As alleged by the State in Section VlTI paragraph 46 of the State' s petition, Xerox has

committed or is about to commit unlawful acts. The illegal acts of Xerox in failing to provide

proper prior authorization review in rubber stampi ng the doctors prior authorization reque.sts is

not the fault of the doctors. The doctors are not responsible for or liable to the State for the



Plea in Intervention
Page 21 of25
illegal acts of a third party for which the doctors had no control; the State should not withhold

money from the lntervenors because of the illegal acts of Xerox complained about by the State.

                                       Breach of Contract

66.    Intervenor re-alleges and incorporates the above facts and allegations as if fully set out

herein. lntervenors are a direct or third party beneficiary of the contract with Xerox and the State

of Texas. The State of Texas has breached terms of the contract by failing to supervise Xerox

and/or reviewing the work product of Xerox. This breach by State, which allowed non-

performance by Xerox, has created the pretext by which the State affirmatively sued lntervenors

for repayment. To the extent that the State has withheld money and/or made claims for damages

against lntervenors based on the contracts in question, the State has waived immunity and is

liable up to those amounts plead.

                                           Conversion

67.     Intervenor re-alleges and incorporates the above facts and allegations as if fuUy set out

herein. State and Federal law required lntervenor to request prior authorization for orthodontic

services. Those prior authorization requests were approved by Xerox, which required lntervenors

to provide the services. The State has unilaterally made a decision to that, based on the acts and

omissions of Xerox, the Intervenor should not have been paid; the State then placed Intervenor

on a payment hold. To the extent that lntervenor has provided services for which lntervenor

should be paid, and money which has been earmarked by the State for that payment but withheld,

the State has converted the funds. In addition, the States' acts/omissions are a violation of the

Texas Constitution Section 9 in that the acts/om issions constitute a seizure of money held under

the pretext of a payment hold.




Plea in Intervention
Page 22 of25
                                            VI. Damages

68.     Intervenors have suffered and are entitled to recover damages inc luding, but not limited

to loss of use of funds sequestered by the State, actual damages, damage to reputation, damage to

business, damage to earnings and earning power, inconvenience, loss of enjoyment of life, fees

and expenses, interest, punitive/exemplary damages, and attorney fees.

                                           VU. Conclusion

69.     Xerox's actions have harmed Intervenor because Xerox committed fraud, negligent

hiring, negligence, and gross neg ligence. Xerox's actions have subjected lntervenor to

unnecessary civi l and adminfatrative legal action, and that, in turn has caused additional inj ury.

Xerox's actions have required Intervenor to perform Xerox's job after-the-fact, by proving to the

State that the orthodontic services rendered were medically necessary and appropriate for

reimbursement. The State's actions have harmed Intervenor because the state's conspiracy to

improperly blame the dentists has resulted in meritless legal claims against the lntervenors and

conversion of the Intervenor's property.

                                         VIII. Jury Demand

70.     Intervenors respectfully request a trial by j ury.

                                     IX. Request for Disclosure

71.     Under Texas Rule of Civil Procedure 194, Intervenor requests that Plaintiff the State

d isclose, within SO days of the service of this request, tbe information or material described in

Rule 194.2.



72.     Wherefore, premises considered, [ntervenors Atlas Dental, LP and Dr. Hieu Huynh pray

that upon final hearing of the cause, judgment be entered jointly and seve rally against the



Plea in Intervention
Page 23 of25
Plaintiff the State of Texas and Defendant Xerox State Healthcare, LLC for damages, together

with pre-judgment and post judgment interest at the legal rate, costs of court, and other such

relief to which the lntervenors may be entitled.

                                              Respectfully ..submitted,


                                           ~  J son Ray
                                              Texas Bar No. 240
                                              RIGGS, ALESHIRE & RAY, P.C.
                                              700 Lavaca, Suite 920
                                              Austin, Texas 7870 l
                                              (5 12) 457-9806 (Telephone)
                                              (5 12) 457-9866 (Fax)
                                              jray@r-alaw.com


                                                 Isl Hart Green w/ permission by J Ray
                                              E. Hart Green
                                              Texas Bar No. 08349290
                                              Mitchell A. Toups
                                              Texas Bar No. 20151600
                                              WELLER, GREEN, TOUPS & TERRELL, L.L.P.
                                              Post Office Box 350
                                              Beaumont, Texas 77704-0350
                                              (409) 838-0101 (Telephone)
                                              (409) 832-8577 (Fax)
                                              hartgr@wgttlaw.com
                                              matoups@wgttlaw.com
                                              ATTORNEYS FOR INTERVENORS
                                              ATLAS DENTAL, LP AND DR. RIEU H UYNH




Plea in Intervention
Page 24 of25
                               CERTIFICATE OF SERVICE

        l hereby certify that a true and correct copy of the foregoing Plea in Intervention was

served via e-mail and certified mail, return receipt requested on this 15th day of May, 2014 on

the following:

Eric J.R. Nichols
Beck Redden
515 Congress A venue, Suite 1750
Austin, Texas, 78701
ENICHOLS@beckredden.com
Attorney for Xerox Defendants

Raymond Winter
Chief, Civil Medicaid Fraud Division
Assistant Attorney General
Office of the Attorney General
P.O. Box 12548
Austin, Texas 78711 -2548
raymond.winter@texasattomeygeneral.gov
Attorney for the Plaintiff State of Texas




Plea in Intervention
Page 25 of25
                               CAUSE NO. D-1-GV-14-000581

DR. STEPHEN CHU,                                    §       IN THE DISTRICT COURT
               INTERVENOR,                          §
                                                    §
VS.                                                 §
                                                    §
THE STATE OF TEXAS,                                 §
               PLAINTIFF,                           §
                                                    §       53rd JUDICIAL DISTRICT
vs.                                                 §
                                                    §
XEROX CORPORATION; XEROX                            §
STATE HEALTHCARE, LLC; ACS                          §
STATE HEALTHCARE, LLC, A XEROX                      §
CORPORATION                                         §
              DEFENDANTS.                           §       TRAVIS COUNTY, TEXAS

                                 PLEA IN INTERVENTION

TO THE HONORABLE JUDGE OF SAID COURT:

        NOW COMES, Dr. Stephen Chu, hereinafter Intervenor, and file this Plea in

intervention, and in support hereof, would respectfully show the Court the follow ing:

                                     I. Parties and Service

1.      Plaintiff, State of Texas, has appeared in this action and may be served with a notice of

this Plea by sending a copy to its attorney, the Attorney General of Texas, Greg Abbott, at P. 0.

Box 12548, Austin, Texas 787 l 1-2548.

2.      Defendant Xerox Corporation is a corporation organized under the laws of New York has

agreed to accept service with process upon its Attorney in this suit. Defendant Xerox State

Health Care, LLC, f/k/a ACS State Healthcare, LLC (misnamed by the State of Texas as ACS

State Healthcare, LLC, a Xerox Corporation is a wholly-owned subsidiary of Xerox Corporation

organized under the laws of the State of Delaware with Texas offices at 2828 N. Haskell Ave.,

Dallas, Texas 75204, and has agreed to accept service with process upon its Attorney in this suit.



Plea in Intervention
Pagel of25
Defendant Xerox Corporation acquired Defendant ACS in 2010. On information and belief,

ACS State Healthcare, LLC, changed its name to Xerox State Healthcare, LLC, on April l, 2012.

Defendants are referred to hereinafter as "Xerox Defendants."

3.     Dr. Stephen Chu is a licensed Texas dentist, approved Medicaid provider. Dr Chu can be

served through his undersigned counsel.

                                    n. Jurisdiction and venue
4.      This Court has subject-matter jurisdiction in that the amounts sought by Intervenor from

all parties (both Plaintiff and Defendants) are in excess of the minimal jurisdiction Limits of this

court. Intervenor affirmatively pleads that this suit is not governed by the expedited-actions

process in TEXAS Ruu::: OF CrvIL PROCEDURE 169 because Intervenor seeks monetary relief over

$100,000.

5.      This Court has jurisdiction over all parties in this petition because:

        a) The State has waived sovereign immunity and is subject to Intervenor's claims;

        b) This Court has jurisdiction over Xerox Defendants because each Defendant does

            business in the State of Texas and committed the unlawful acts alleged in thi s petition

            in whole or part in Texas.

6.      Venue is proper in Travis County under TRCP §15.020 because this suit involves a

"major transaction"; Venue is permissive under TRCP § l 5.035(a) because intervenor asserts

claims for breach of contract. Venue is proper pursuant to TRCP § I5.02 because all or a

substantial part of the events or omissions giving rise to the claim occurred in Travis County.

Many of the unlawful acts committed by the State and Xerox Defendants were committed in

Travis County, including the making of false statements and misrepresentations of material fact.




Plea in lntervention
Page 2 of25
                                ID. Intervenor's Interest in the Suit

7.      Intervenor has a judicial interest in the matters and controversy in this litigation. The

relationship between Lntervenor, the State as the Plaintiff and the Xerox Defendants is a tripartite

arrangement necessitating that, in the interest of judicial economy and justice, all claims be

bound and subsumed into one cause of action. Upon information and belief, Intervenor was

initially sued by the State in a qui tam action wherein the State alleged that Intervenor defrauded

the State. The State has elected to pursue its remedies against the lntervenor in an administrative

hearing. Now, the State has sued Xerox in State Court on the same facts, alleging that Xerox has

committed fraud against the State. Intervenor has claims against both the State and Xerox. It is

assumed that Xerox will have claims against the State, and perhaps allege claims against the

lntervenor. All of the different parties' claims arc inextricably intertwined, as they relate to

Intervenor's submission of prior authorization requests to Xerox, the handling of those claims by

the Xerox Defendants, the State's handling and oversight of its agent Xerox in Xerox's

performance of its contractual and legal duties, and State's subsequent legal action against the

Intervenors for services approved by Xerox.

                                              IV. Facts

What is Prior Authorization?

8.      Texas Medicaid requires that orthodontic services be independently and objective ly

scrutinized before the State consents to treatment and payment. Prior authorization is the

mechanism the State uses to detennine the medical necessity of non-emergency orthodontic

items/services prior to delivery of those items/services. Pursuant to Texas Health and Human

Services Commission (hereinafter "HHSC") rules, Texas Medicaid greatly restricts when it will

pay for orthodontic services:



Plea in Intervention
Page 3 of25
        Orthodontic services for cosmetic reasons only are not a covered Medicaid
        service. Orthodontic services must be prior authorized and are limited to
        treatment of severe handicapping malocclusion and other related conditions as
        described and measured by the procedures and standards published in the
        [TMPPM 1].

25 TEX. ADM IN. CODE §33.71       (emphasis added). Prior authorization is a statement of assurance

to the orthodontic provider that, absent an intervening disqualifying factor, the delivery of the

requested orthodontic service has been deemed by Xerox to be medically necessary, and

therefore approved by the State.

9.      The prior authorization process is straightforward. Texas Medicaid requires that a dental

provider send documentation (x-rays, cephalographs, photos, etc.) regarding the patient's

orthodontic condition to Xerox for review. In addition, the orthodontic provider submits his

professional opinion of the patient on a Handicapping Labio-lingual Deviation index (HLD)

score sheet. Xerox knew providers relied entirely on the prior authorization process because

approval was a mandatory prerequisite to providing orthodontic services and being paid. Once

Xerox issued its prior aulhorization decision, the decision was not appealable by the provider.

l 0.    The HLD scoring system combines a number of treatable orthodontic conditions into an

index. HLD score sheets use a mix of objective and subjective conditions to determine whether a

Medicaid patient qualities for orthodontic services. The fact that the HLD score sheet requires

both objective and subjective findings highlights the importance of Xerox performing a thorough

prior authorization review.

The History of Orthodontic Prior Authorization.

l l.    The process for reviewing and approving orthodontic prior authorization requests pre-

dates the defendant Xerox's handling of Medicaid claims processing. The National Heritage


1
  "TMPPM" is the Texas Medicaid Provider Procedures Manual, whi.ch is issued yearly by the HHSC and provides
valuable guidance to Medicaid providers.

Plea in Intervention
Page4 of25
Insurance Corporation (NHlC) was responsible for reviewing prior authorization requests before

Xerox assumed the contract in January 2004. Starting January I, 2004, Xerox acted as an

independent contractor, and was a contracted agent of the State, under the contract with HHSC.

Xerox was responsible for reviewing each orthodontic service request, and Xerox was further

charged with the responsibility to grant or deny each prior authorization request per the program

requirements. The result was that Xerox had the final say in determ ining the medical necessity of

each request for orthodontic services.

12.     Prior to assuming the NHIC contract, and for a period ohime after assum ing the contract

from NHIC, Xerox received training from NHJC personnel regarding the proper method for

receiving and processing orthodontic prior authorization requests. NHTC personnel explained

how and why the review of each prior authorization submission was important, and walked

Xerox through the process. Despite its training from NHIC, Xerox had no intenlion of following

the prior authorization system that had been in place for years, nor did Xerox intend to otheiwise

meet the prior authorization requirements set oul in its contract. the TMPPM and required by

state law.

Xerox rejects its contractual responsibilities.

13.     When Xerox took over the contract in 2004, it immediately abandoned the prior

authorization review process that had been setup by NHIC. Xerox never intended to fulfill its

orthodontic prior authorization responsibilities to HHSC. From 2004 to 20 11, Xerox continually

misrepresented that it was acting in compliance with its contractual duties.

14.     It is now known that Xerox failed to adequately staff their prior authorization division

with knowledgeable medical professionals. Xerox employed only one licen sed dentist from 2004

through 2011, which was far short of the manpower necessary to handle the review of tens of



Plea in Intervention
Page5 of25
thousands of orthodontic prior authorization requests every year. Xerox could not reasonably

have expected to handle such a workload by employing only one dentist .

Xerox potentially commits thousands of violations.

15.     It is believed Xerox allowed "dental specialists"-unlicensed, unqualified individuals-

to render prior authorization opinions regarding the medical necessity of requested orthodontic

services. The "dental specialist" approvals were not reviewed or ratified by Xerox's licensed

dental director or another qualified dental professional. These actions not only violated Xerox's

contractual obligations, they may have also violated other Texas law such as the Dental Practice

Act. 2 It is believed these unlicensed Xerox "specialists" rendered tens of thousands of prior

authorization approvals/medical opinions in violation of Texas law.

16.      Xerox was paid by the state for each prior authorization decision that was made. It is

believed that Xerox employed unlicensed "specialists," rather than licensed Texas dentists, as a

profit generating measure.

17.      From January 2005 through February 2012, Intervenor submitted prior authorization

requests, as required, to Xerox for a determination of medical necessity. Unbeknownst to

lntervenor, Xerox's dental specialists-not the dental director-approved almost all of

Intervenor's requests. Xerox's prior authorization approvals were promises that:

         a) the requested orthodontic services were medically necessary, and/or

         b) the approval had been issued by a licensed dentist, and/or

         c) the approval was an actual and legitimate dental diagnosis, and/or

         d) the requested orthodontic services were allowable under Texas law and as permitted


2
  Texas Occupations Code §251.003 prevents unlicensed individuals from diagnosing conditions of the human teeth
and mouth. Section 256.001 states that a person may not practice dentistry without a license. Thus, state law requires
that opinions regarding medical necessity of orthodontic treatment must be made by licensed dentists. Section
264.151 prescribes penalties for certain violations of the Dental Practice Act.

Plea in Intervention
Page 6 of25
by Medicaid policy, the TMPPM. and HHSC rules, and/or

       e) a proper, thorough and legal review had been made, and/or

        f) future orthodontic services would be properly reimburseable to Intervenor, absent some

intervening disquali fication (such as the patient's ineligibility).

18.     Because Xerox was charged with detennining medical necessity, and because prior

authorization approval was a mandatory prerequisite to furn ishing services, the promises were

material. Intervenor expected performance of these promises. Intervenor rel ied on Xerox.

Further, Xerox promised that its subsequent payments to Intervenor (after the services had

actually been delivered) were made because the services had been, in fact, properly approved as

medically necessary. Each prior authorization approval represents a separate violation of the law

if Xerox's approval was issued illegaJly and/or in violation of its contractual obligations.
Xerox actively concealed its potentially illegal activity.

l 9.    Xerox withheld the truth regarding its prior authorization program. In an attempt to

publicly appear consistent with NHIC's prior authorization process, Xerox continued to require

that dental providers (such as intervenor) submit all supporting documentation for each HLD

score sheet. It is now believed that, incredibly, Xerox did nothing with that documentation, other

than assure that it had been submitted by the provider. It is believed that Xerox's speciaJists were

instructed to forward to its dental director only those requests that had scored below the

threshold for orthodontic services (i.e. below 26 points on the HLD score sheet), or had some

provider justification attached. As a result, only 10% of the orthodontic prior authorization

requests were actua lly forwarded to Xerox's one licensed dentist             Xerox's actions were

calculated to make Xerox appear compliant with its contract and HHSC policies, while Xerox

knew that its actions were entirely inconsistent with the letter and spirit of its obligations.



Plea in Intervention
Page 7 of25
Effectively, then, Xerox's actions not only damaged the Medicaid program directly by approving

services without determining their medical necessity, but Xerox's deception also exacerbated the

problem by failing to give providers guidance regarding the proper standard for medical

necessity, thus causing these providers substantia l damages.

20.       For the past ten years, Xerox bas continued to publicly represent to the world that it was

fulfilling its contractual and legal responsibilities. Based on Xerox's representations that it was

fulfilling its duties to the State, Xerox had its contract with HHSC repeatedly renewed from 2004

through the present. Each year that Xerox had its contract renewed, it represented that it would

fulfill its contractual obligations and abide by Texas law requiring that decisions about medical

necessity be rendered only by licensed dentists. Xerox made those representations knowing that

it bad nm done so in the past, and had no intention of changing its procedures to do so in the

future.

The Frew decision magnifies Xerox's acts.

21.       In September 2007, after fifteen years of litigation on the subject, Texas was ordered to

implement a corrective action plan that increased the Medicaid reimbursement rates to all dental

providers. That plan was required pursuant to the Frew case3 , which was a 1993 class-action

lawsuit against the HHSC alleging that Texas' Medicaid reimbursement rates were so low that

they prevented indigent children from receiving timely, comprehensive health care.

22.       In response to Frew 's corrective action plan, the 2007 Texas Legislature allocated $707

million ($1.8 billion in state and federal funds combiJ1ed) to increase medical and dental



3
 Frew v. Gilbert, 109 P. Supp. 2d 579 (E.D. Tex. 2000) vacated sub nom. Frazar v. Gilbert, 300 F.3d 530 (5th Cir.
2002) rev'd sub nom. Frew ex rel. Frew v. llawkins, 540 U.S. 431, 124 S. Ct. 899, 157 L. Ed. 2d 855 (2004) and
a.ffd in part, appeal dismissed in part sub nom. Frazar v. Hawkins, 376 F.3d 444 (5th Cir. 2004); Frew v. Hawkins,
40 1 F. Supp. 2d 619 (E.D. Tex. 2005) afj'd sub nom. Frazar v. Ladd, 457 F.3d 432 (5th Cir. 2006); Hawkins v.
Frew, 549 U.S. 1118, 127 S. Ct. 1039, 166 L. Ed. 2d 714 (2007).


Plea in Intervention
Page 8 of25
reimbursement rates. The increase in dental reimbursement rates was intended to entice dentists

to become Medicaid providers. It worked. The state raised payment rates for dental services, and,

as a result, the number of dentists participating in Medicaid increased from 45.4% in 2007 to

63.4% in 20 I 0. As expected indeed, as intended spending on Texas's dental serv ices increased

dramatically.

23 .   Although the number of prior approval requests increased by 240% between 2007 and

2010, Xerox continued to employ only one dentist. That dentist was neither tasked with nor

responsible for superv ising the clerical specialists that were issuing the approvals.

24.    By 20 I0, orthodontic spending under Texas' Medicaid program had skyrocketed. Xerox

was the sole entity responsible fo r overseeing this increase, because it was the sole gatekeeper

for the approval and payment of orthodontic services. Although the Texas Legislature had

increased funding to attract dentists into the Medicaid program, all of the budgeted funds were

required to be spent only on medically necessary services.

The Office of Inspector General seeks recovery from Medicaid providers.

25.     In early 2011, a series of news stories began highlighting the large amount of money

being spent on orthodontics in Texas. ln July 201 1, the Federal government notified Texas of its

intent to audit whether Texas' prior authorization process was ensuring that only medically

necessary o rthodontic cases were being approved and paid. With the prospect of a federal

clawback action looming against Texas because of Xerox 's prior authorization failures, the

Texas O ffice of lnspector General (hereinafter "State") took a drastic step. Beginning in 20 I I,

the State generated a list of the top Medicaid orthodontic billers and placed them on "payment

hold." Intervenor was one of those providers.

26.     Given Intervenor's proximity to some of the state's poorest children, and the mandates of



Plea in Intervention
Page 9 of25
the Frew decision, Intervenor served a large Medicaid patient population. Because it served a

large Medicaid populatio n, it submitted a large number of prior authorization requests to Xerox

from 2004 through 2011.

27.     Intervenor d id not know that Xerox was faili ng to perform a true and accurate review for

medical necessity. Intervenor relied on Xerox's prior authorization approvals to confirm that

dentists ' analysis was proper and consistent w ith Medicaid standards and requirements.

28.     Again unbeknownst to Intervenor, State audits in 2008 and 2012 concluded that most, if

not almost all, of the prior authorization requests for patients with HLD scores o f 26 or greater

(indicating medical necessity) had not been actually "evaluated" at all by Xerox. These State

audits made the Federal government's pending audit especially dangerous to Texas, because the

2008 and 2012 audits were admissions that Xerox had been approving and paying claims that

may not have met the federal standards for prior authorization. T hus the State, through the

Attorney General, concluded that a true fi nding o f med ical necessity had in reality not occurred.

The Attorney General claimed that billing for services that are not necessary is fraud, despite

Xerox's prior authorization approvaJs.

29.     It is now believed that rather than prosecute Xerox for its failure to properly evaluate

dentists' prior authorization requests, the State and the Texas Attorney General protected Xerox.

This protection included the State failing to a llow TMHP to hire additional medically licensed

staff. and in 2008-2009 telling TMHP to continue its prior authorization practices . Although the

Attorney General took immediate action against the providers, the Attorney General refused to

ho ld Xerox accountable for its orthodontic "approvals," its repeated contractual failures, or its

violation of State law. lnstead, the Attorney General made fraud allegations against each of the

top 25 dental providers, including Intervenor, which has caused more injury and damages to



Plea in Intervention
Page 10 of25
Intervenor. Stated differently, Xerox issued its approvals through a process that gutted the State's

belief in the accuracy o f Xerox's decision, and the Texas Attorney General punished the

providers instead of Xerox.

30.     Because the acts/omissions of Xerox so undermined the process, the Slate eventually

instituted a " payment hold" against Intervenor. A payment hold temporarily freezes future

Medicaid payments to a provider, despite the provider's ongoing participation in the Medicaid

program. The payment hold against Intervenor was issued pursuant to what the State called a

"credible allegation of fraud" regarding Intervenor's orthodontic prior authorization requests.

The State placed a IOO% payment hold against Intervenor's orthodontic billings.

3 1.    At the time the Attorney General began prosecuting Intervenor and similarly situated

Medicaid providers, it knew Xerox, not Intervenor, had the sole authority and responsibility to

authorize orthodontic services and payments. The Attorney General knew that the State's audits

of Xerox in 2008 and 2012 bad concluded that Xerox was violating its contract with the State,

violating its own State-approved policies and procedures, and violating State law. Nevertheless,

the Attorney General continued to only prosecute dental providers like the Intervenor; the

Attorney General refused to hold Xerox responsible. In fact, in one shameless and brazen

demonstration of State 's unwavering protection of Xerox, the Deputy Director of Texas' Office

of the Inspector General testified in a hearing that Xerox's acts and omissions were so egregious

they were outside the course and scope of Xerox's agency with State.4 Upon infonnation and

belief, the State and the Attorney General protected Xerox for over 6 years fearing that revealing

the State's culpability would subject the State to a federal clawback for hundreds of millions of


4
 Incredibly, that testimony came in an administrative proceeding in which the State was seeking $8 million from a
dental provider for following Xerox's instructions to provide braces to the provider's patients. The idea that the
State could not hold Xerox responsible for its contractual obligations because Xerox had done such a poor job that it
was acting outside of its contract is a novel and imaginative reason not to prosecute Xerox.

Plea in Intervention
Page 11 of25
dollars. Instead, the State and the Attorney General pointed at the dental providers.

32.     Ultimately, the ev idence of Xerox's failu res, and the State's refusal to correct Xerox for

over 6 years, became too much to hide. Three months after some providers filed suit against

Xerox, and following a series of news stories question ing why Xerox had not suffered for its

failures, the Attomey General reversed course. On May 9, 20 14, the State, through the Texas

Attorney General, filed this lawsuit against Xerox for fraud, basically mirroring the suit filed

approximately 100 days earlier by similarly situated providers. The State's c laims in this fraud

lawsuit include admissions that the State knew as early as 2006 that Xerox's actions were

improper.

33.     As a result of the payment hold, Intervenor was required to make significant finan cial

concessions and changes to its business. Intervenor also engaged legal counsel to defend itself

from the State's claims, at a significant expense that continues today.

34.     The State's allegations against Intervenor are rooted in two assumptions. First, the State

assumes Intervenor's prior authorization requests were not properly vetted by Xerox; that is,

Xerox approved fntervenor's requests without knowing whether approval was actually proper.

Because Xerox is not a party to Intervenor's adm inistrative case, Intervenor is prevented from

determining whether Xerox did, in fact, perform a proper review of Intervenor's prior

authorization requests. By intervening in this lawsuit, lntervenor seeks to address that question,

and finally detennine whether Xerox reviewed Intervenor's requests as required by its contract

and the law.

35.     Regarding the State's second assumption, the State alleges some of Intervenor's requests

were approved when, in fact, they should have been denied. Intervenor denied that assertion in

the administrative case, and Intervenor continues to deny that claim here. All services provided



Plea in Intervention
Page 12 of25
to Intervenor's patients were actually medically necessary, regardless of what Xerox decided and

in any event under Medicaid guidelines once the authorization was approved, Intervenor was

required to provide the services.

36.     The State continues to aggressively fight any allegation or affirmative defense that could

result in Xerox being held accountable for its part in these HLD scoring cases, despite the State's

contentions in the District Court case to the contrary. Damages continue to accrue.

                                       V. Causes of Action

A. Intervenor's Claims Against Xerox

      Common Law Fraud (Fraudulent Misrepresentation and Fraudulent Inducement)

37.     Intervenor re-alleges and incorporates the above facts and allegations as if fully set out

herein . Xerox's prior authorization approvals were false representations made to Intervenor. It is

believed Xerox knowingly issued these prior authorizations to Intervenor because Xerox knew

that it was approving requests without a proper medical review, and/or because it approved the

prior authorization requests without any knowledge of their truth. lt is believed Xerox intended

for Intervenor to rely on the approvals as a prerequisite for providing the requested services.

Approval was material because it was a mandatory prerequisite for payment. Intervenor actually

and justifiably relied on Xerox's fraudulent approvals.

38.     Xerox's approvals induced Intervenor to continue to grade subsequent HLD requests in

the same or similar manner, and led Intervenor to believe that their requests were consistent with

Medicaid standards and requirements.

39.     Xerox's fraudulent approvals caused injury to Intervenor. As a result of Xerox's actions,

Intervenor submitted requests for payment and Xerox actually paid for those services, Intervenor

was placed on payment hold, Intervenor is forced to defend itself in an administrative payment



Plea in Intervention
Page 13 of25
hold hearing, and lntervenor is facing administrative claims by HHSC for repayment (including

claims for treble damages and attorney fees). Intervenor's reputation and business have suffered

severe injury. Intervenor seeks recovery of actual and exemplary damages, interest, court costs,

and attorney fees.

                          Breach of the Xerox-State of Texas Contract

40.      Intervenor re-alleges and incorporates the above facts and allegations as if fully set out

herein. In the alternative, Xerox's actions constitute a breach of Xerox's contract with the State

for the benefit of Intervenor. Xerox's contract with the state required that it conduct a proper,

thorough and legal review of prior authorization requests for the purpose of detennining medical

necessity. To that end, Xerox should have employed a licensed dentist.

41 .     Xerox was an agent of the State of Texas engaged specifically for the purpose of

detem1ining medical necessity. The third party beneficiaries of that Xerox-State of Texas

contract were Medicaid patients and Intervenor. T he patients were entitled to receive orthodontic

services that were medically necessary. Intervenor was responsible for actually delivering the

orthodontic services that Xerox had deemed medically necessary. Thus, Intervenor was a third

party beneficiary that relied on Xerox's approvals.

42.      Xerox breached its contract by, inter alia, failing to provide qualified staff; possibly

violating Texas law; permitting non-dentists to make determinations of medical necessity; and

issu ing medical opinions without conducting a reasonable and prudent examination of evidence.

The breaches were material, and recurred across many different Medicaid patients and for many

years.

43.      Xerox' s actions proximately caused Intervenor's injury. Intervenor's injuries were

caused-in-fact by Xerox's actions, and they were foreseeab le. Because Xerox's prior



Plea in Intervention
Page 14of25
authorization was a necessary prerequisite to providing services, lntervenor relied entirely on

Xerox's determinations regarding medical necessity; thus, Xerox's actions were the direct factual

cause of Intervenor's injuries. Xerox's actions were foreseeable in that a person of ordinary

intelligence should have anticipated that issuing a decision without actually reviewing or

considering the evidence (x-rays, photos, models, etc.) would eviscerate the credibility and

reliability of the decision. Once the State assumed that Xerox's approvals were not trustworthy,

it was foreseeable that the State would demand repayment, and/or would require Intervenor to

independently do Xerox's job after the fact by proving that payment was proper because the

services were medically necessary and reimbursable under Texas Medicaid law.

44.     Intervenor suffered and continues   to   surfer s ignificant damage. rntervenor seeks damages

that would have given the Intervenor the benefit of the bargain by putting them in as good a

position as they would have been in if the contract had been performed.             Intervenor seeks

reliance interest damages to restore the expenditures lntervenor made in reliance on Xerox 's

contract with the state and the approvals that Xerox made under that contract. Intervenor also

seeks damages for its restitution interest to restore money sought by the Office of the Inspector

General from Intervenor. Such damages wou ld put the Intervenor in as good a position as it

would have been in if the contract had been properly fulfilled. In addition. Intervenor seeks

Liquidated damages as set out in the Xerox-State of Texas contract. Jntervenor has engaged legal

counsel to defend itself from the State's charges, and those legal expenses continue today.

lntervenor has incurred benefit of the bargain damages, out-of-pocket damages, lost profits, lost

future profits, loss of credit, and loss of goodwill.       Intervenor seeks recovery of actual and

exemplary damages, interest, court costs, and attorney fees.

                          Breach of Contract (Promissory Estoppel)



Plea in lntervention
Page 15 of25
45.     Intervenor re-alleges and incorporates the above facts and allegations as if fully set out

herein. In the alternative, Xerox's actions constitute promissory estoppel.

46.     Xerox's prior authorizations constitute promises to Intervenor in numerous ways.

Because prior authorization was a prerequisite to furnishing services, and because Xerox was the

entity charged with discharging prior authorization duties, Intervenor reasonably, substantially,

and foreseeably relied on Xerox 's promises.

4 7.    Intervenor suffered and continues to suffer significant damage. Intervenor suffered

rel iance damages by investing time, labor, equipment, and orthodontic appl iances in each

Medicaid patient that Xerox approved. Intervenor has engaged legal counsel to defend itself from

the State's charges, and those legal expenses continue today. Intervenor has been required to do

Xerox's job after the fact-namely, demonstrate that the services were medically necessary and

properly reimbursable under Texas Medicaid law. Intervenor has incurred benefit of the bargain

damages, out-of-pocket damages, lost profits, lost future profits, loss of credit, and loss of

goodwill. All of these damages were directly and/or proxjmately caused by Xerox's promises.

Intervenor seeks recovery of actual and exemplary damages, interest, court costs, and attorney

fees.

                            Negligent Hiring/Negligent Supervision

48.     lntervenor re-alleges and incorporates the above facts and allegations as if fully set out

herein. Xerox's actions constitute negligent hiring and/or negligent supervision. Xerox was

required to render medical diagnoses. To that end, Xerox was required by law to employ a

licensed dentist to render a diagnosis regarding med ical necessity. Xerox was a lso req uired by

law to properly supervise its employees to make sure diagnoses were made only by licensed

dentists.



Plea in Intervention
Page 16 of25
49.    Xerox knew or should have known that decisions regarding medical necessity can only

be rendere<l by licensed personnel. Texas Occupations Code section 251.003 defines the practice

of dentistry to include a d iagnosis of the human mouth and/or teeth; section 256.001 states that a

person may not practice dentistry without a license; section 264. 151 makes it a third-degree

felony to practice dentistry without a license.

50.    Xerox's actions proximately caused Intervenor's injury. Intervenor's injuries were

caused-in-fact by Xerox's actions, and they were foreseeable. Because Xerox's prior

authorization was a necessary prerequisite to providing services, Intervenor relied entirely on

Xerox's determinations regarding medical necessity; thus, Xerox' s actions were the direct factual

cause of Intervenor's injuries. Xerox's actions were foreseeable in that any person of ordinary

intelligence should have anticipated that paying Intervenor for services that have not properly

been detennined to be medically necessity would precipitate a demand for repayment, and/or

would require Intervenor to independently do Xerox's job after the fact by proving that payment

was proper because those services were medically necessary and were reimbursable under Texas

Medicaid law.

51.     Intervenor suffered and continues to suffer significant damage. Intervenor suffered

reliance damages by investing the cost of services for each Medicaid patient that Xerox

approved. Intervenor has engaged legal counsel to defend itself from the State's charges, and

those legal expenses continue today. lntervenor suffered and continues to suffer signi ficant

damage to its reputation, business, referral base, earnings and earning power. Intervenor has

suffered inconvenience and loss of enjoyment of life in that he has had to dedicate significant

mental and personal capital to doing Xerox' s job. Intervenor has suffered exemplary damages

because Xerox 's conduct was grossly negligent, outrageous and malicious, and such conduct



Plea in Intervention
Page 17 of25
should be penalized so that it is deterred in the future. Intervenor seeks recovery of actual and

exemplary damages, interest, court costs, and attorney fees.

                                           Negligence

52.     Intervenor re-alleges and incorporates che above facts and allegations as if fully set out

herein. Xerox's actions constitute negligence and gross negligence. Xerox was required to render

medical diagnoses. To that end, Xerox had a duty to employ a licensed dentist to render a

diagnosis supporting or denying medical necessity. Xerox had a duty to assure that the personnel

had appropriate education, training and experience to render such a finding. Xerox had a duty to

review the supporting prior authorization documentation (such as x-rays and photos) to

determine whether the requested services were medically necessary.

53.     Xerox 's actions breached the standard of care because Xerox: failed to provide prior

authorization staff that were properly licensed, qualified and experienced dental professionals;

violated the law, specifically the Dental Practice Act, by permitting non-dentists to make

determinations of medical necessity, and; issued medical opinions (prior authorizations) without

conducting a reasonable and prudent examination of evidence.

54.     Xerox's actions proximately caused Intervenor's injury. Intervenor's injuries were

caused-in-fact by Xerox's actions, and they were foreseeable. Because Xerox's prior

authorization was a necessary prerequisite to providing services, Jntervenor relied entirely on

Xerox's determinations regarding medical necessity; thus, Xerox's actions were the direct factual

cause of Intervenor's injuries. Xerox's actions were foreseeable in that any person of ordinary

intelligence shouId have anticipated that paying Intervenor for services that have not properly

been determined to be medically necessity wou ld precipitate a demand for repayment, and/or

wou ld require Intervenor to independently do Xerox's job after the fact.



Plea in Intervention
Page 18 of25
55.    Intervenor suffered and continues to suffer s ignificant damage to its reputation, business,

referral base, earnings and eaming power. Intervenor has engaged legal counsel to defend itself

from the State's charges, and those legal expenses continue today. Dr. Chu has suffered

inconvenience and loss of enjoyment of life in that he has had to dedicate significant mental and

personal capital to doing Xerox's job. Intervenor has suffered exemplary damages because

Xerox's conduct is grossly negligent, outrageous and malicious, and such conduct should be

penalized so that it is deterred in the future. Intervenor seeks recovery of actual and exemplary

damages, interest, court costs, and attorney fees.

                                  Negligent Misrepresentation

56.     Intervenor re-alleges and incorporates the above facts and allegations as if fu lly set out

herein. Xerox 's actions constitute negligent misrepresentation. Xerox's actions constitute

misrepresentations to Intervenor in numerous ways. Because, inter aUa, prior authorization

approval was a prerequisite to furnishing services, these representations guided and controlled

Cntervenor's responses. Intervenor justifiably relied on these representations. Further, Xerox

represented that its prior authorization approvals were dispositive of medical necessity;

Intervenor expected that, once approved, no further inquiry into the medical necessity of the

services would be required. Further, Xerox represented that its subsequent payments to

Cntervenor (after the services had actually been delivered) were made because services had been,

in fact, properly approved as medically necessary.

57.     Xerox did not exercise reasonable care or competence in making its determinations and

representations. Xerox knew or should have known that its representations were false.

58.     Because prior authorization was a prerequis ite to furnishing services, and because Xerox

was the entity charged with discharging prior authorization duties, Intervenor reasonably,



Plea in Intervention
Page 19of25
substantially, foreseeably, and justifiably relied on Xerox' s representations.

59.       Intervenor suffered and continues to suffer significant damage. Intervenor suffered

reliance damages by investing time, labor, equipment, and orthodontic appliances in each

Medicaid patient that Xerox approved. Intervenor has engaged legal counsel to defend itself from

the State 's charges, and those legal expenses continue today. Intervenor has been required to do

Xerox's job after the fact. intervenor has incurred benefit of the bargain damages, out-of-pocket

damages, lost profits, loss of credit, and loss o f goodwill. All of these damages were directly

and/or proximately cause by Xerox's negligent misrepresentations. Intervenor seeks recovery of

actual and exemplary damages, interest, court costs, and attorney fees.

                       Gross Negligence I Misapplication of Fiduciary Property

60.       Intervenor re-alleges and incorporates the above facts and allegations as if fully set out

herein. Plaintiffs plead Xerox committed gross negligence and/or the misapplication of fiduciary

property which would entitle lntervenors to unlimited punitive damages.

B. Intervenors' Claims Against The State of Texas

                                   Waiver of Sovereign Immunity

61.       Intervenor re-alleges and incorporates the above facts and allegations as if fully set out

berein.    For a num ber of reasons, the State has waived sovereign immunity for claims by

lntervenor, including the facts that the State brought, threatened and/or has taken civil and/or

administrative action against lntervenors, and because the State has filed suit against Xerox.

                                    Conspiracy/Joint Enterprise

62.       Intervenor re-alleges and incorporates the above facts and allegations as if fully set out

herein. In the alternative, former Deputy Inspector General Jack Stick has stated publicly that

acts and omissions of Xerox were so egregious as to be outside the course of scope of Xerox's



Plea in Intervention
Page 20 of25
agency relationship with the State. Assuming same to be true, then the State conspired with

Xerox to breach the contract or allow the breach to continue, conspired to withhold funds from

Intervenor but not Xerox, and conspired to false ly accuse Intervenor of fraud/crime.

63.    The State conspired with Xerox to allow Xerox to violate its various contractual duties.

The State permitted Xerox to process as many prior authorizations as possible without the

required clinical dental review and without using medically knowledgeable personnel. The State

conspired with Xerox to allow Xerox to violate State and Federal law. The State and Xerox

created a scheme to rubber stamp and/or allow no legitimate review of prior authorizations

submitted by the dentists. The conspiracy was committed with the intent to shift blame from the

State and its agent, improperly blame the Intervenors, and enrich the State and Xerox. By

recouping money from providers that were not actually to blame, the State and Xerox hoped to

limit their own liabi lity in the event of a Federal clawback action, and/or respond to unflattering

news reports of Texas' payments for Medicaid braces. This agreement and ensuing acts of the

party to blame the dentist providers for their own improper acts and omiss ions is a proximate

cause of the injury to lntervenors .

                            Not Liable for Illegal Acts of Third Party

64.     Intervenor re-alleges and incorporates the above facts and allegations as if fully set out

herein. As alleged by the State in Section Vlll paragraph 46 of the State' s petition, Xerox has

committed or is about to commit unlawful acts. The illegal acts of Xerox in failing to provide

proper prior authorization review in rubber stamping the doctors prior authorization requests is

not the fault of the doctors. The doctors are not responsible for or liable to the State for the

illegal acts of a th ird party for which the doctors had no control; the State should not withhold

money from the lntervenors because of the illegal acts of Xerox complained about by the State.



Plea in Intervention
Page 21 of25
                                       Breach of Contract

65.     Intervenor re-alleges and incorporates the above facts and allegations as if fully set out

herein. Intervenors are a direct or third party beneficiary of the contract with Xerox and the State

of Texas. The State of Texas has breached terms of the contract by failing to supervise Xerox

and/or reviewing the work product of Xerox. This breach by State, which allowed non-

performance by Xerox, has created the pretext by which the State affirmatively sued Intervenors

for repayment. To the extent that the State has withhe ld money and/or made claims for damages

against Intervenors based on the contracts in question, the State has waived immunity and is

liable up to those amounts plead.

                                           Conversion

66.     lntervenor re-alleges and incorporates the above facts and allegations as if fu lly set out

herein. State and Federal law required Intervenor to request prior authorization for orthodontic

services. Those prior authorization requests were approved by Xerox, which required lntervenors

to provide the services. The State has unilaterally made a decision to that, based on the acts and

omissions of Xerox, the Intervenor should not have been paid; the State then placed Intervenor

on a payment hold. To the extent that Intervenor has provided services for which Intervenor

should be paid, and money which has been earmarked by the State for that payment but withheld,

the State has converted the funds. In addition, the States' acts/omissions are a violation of the

Tex.as Constitution Section 9 in that the acts/om issions constitute a seizure of money held under

the pretext of a payment hold.

                                           YL..,llamages

67.     lntervenors have suffered and are entitled to recover damages including, but not limited

to loss of use of funds sequestered by the State, actual damages, damage to reputation, damage to



Plea in Intervention
Page 22 of25
business, damage to earnings and earning power, inconvenience, loss of enjoyment of life, fees

and expenses, interest, punitive/exemplary damages, and attorney fees.

                                            Vll. Conclusion

68.    Xerox's actions have banned Intervenor because Xerox committed fraud, negligent

hiring, negligence, and gross negligence. Xerox's actions have subj ected Intervenor to

unnecessary civil and administrative legal action, and that, in turn has caused additional injury.

Xerox's actions have required Intervenor to perform Xerox'sjob after-the-fact, by proving to the

State that the orthodontic services rendered were medically necessary and appropriate for

reimbursement. T he State's actions have harmed Intervenor because the state's conspiracy to

improperly blame the dentists has resulted in meritless legal claims against the Intervenor and

conversion of the Intervenor' s property.

                                        VID. .Jury Demand

69.     Intervenor respectfully requests a trial by jury.

                                    IX. Request for Disclosure

70.     Under Texas Rule of Civil Procedure 194, Intervenor requests that Plaintiff the State

disclose, within 50 days o f the service of this request, the information or material described in

Rule 194.2.




71.     Wherefore. premises considered, Intervenor Dr. Stephen Chu pray that upon final hearing

o f the cause, judgment be entered jointly and severally against the Plaintiff the State of Texas

and Defendant Xerox State Healthcare, LLC fo r damages, together with pre-judgment and post

judgment interest at the legal rate, costs of court, and other such relief to whfoh the Intervenor

may be entitled .



Plea in Intervention
Page 23 of25
                       J son Ray
                       Texas Bar No. 24 05
                       RIGGS, ALESHIRE & RAY, P.C.
                       700 Lavaca, Suite 920
                       Austin, Texas 78701
                       (512) 457-9806 (Telephone)
                       (512) 457-9866 (Fax)
                       jray@r-alaw.com


                          Isl Hart Green w/ permission by J Ray
                       E. Hart Green
                       Texas Bar No. 08349290
                       Mitchell A. Toups
                       Texas Bar No. 201 51600
                       WELLER, GREEN, TOUPS & TERRELL, L.L.P.
                       Post Office Box 350
                       Beaumont, Texas 77704-0350
                       (409) 838-0 10 1 (Telephone)
                       (409) 832-8577 (Fax)
                       hartgr@wgttlaw.com
                       matoups@wgttlaw.com
                       ATTORNEYS FOR INTERVENOR
                       DR. STEPHEN CHU




Plea in Intervention
Page 24 of25
                               CERTIFICATE OF SERVICE

        I hereby certify that a true and correct copy of the foregoing Plea in Intervention was

served via e-mail and certified mail, return receipt requested on this J 5th day of May, 2014 on

the following:

Eric J.R. Nichols
Beck Redden
515 Congress Avenue, Suite 1750
Austin, Texas, 78701
ENICHOLS@beckredden.com
Attorney for Xerox Defendants

Raymond Winter
Chief, Civil Medicaid Fraud Division
Assistant Attorney General
Office of the Attorney General
P.O. Box 12548
Austin, Texas 78711-2548
raymond. winter@texasatlorneygeneral.gov
Attorney for the Plaintiff State of Texas




Plea in Intervention
Page 25 of25
                               CAUSE NO. D-1-GV-14-000581

DR. RICHARD F. HERRSCHER,                           §       IN THE DISTRICT COURT
                INTERVENOR,                         §
                                                    §
vs.                                                 §
                                                    §
THE STATE OF TEXAS,                                 §
               PLAINTIFF,                           §
                                                    §       53rd JUDICIAL DISTRICT
vs.                                                 §
                                                    §
XEROX CORPORATION; XEROX                            §
STATE HEALTHCARE, LLC; ACS                          §
STATE HEALTHCARE, LLC, A XEROX                      §
CORPORATION                                         §
              DEFENDANTS.                           §       TRAVIS COUNTY, TEXAS

                                 PLEA IN INTERVENTION

TO THE HONORABLE JUDGE OF SAID COURT:

        NOW COMES, Dr. Richard F. Herrscher, hereinafter Intervenor, and fi le this Plea in

Intervention, and in support hereof, would respectfully show the Court the following:

                                     I. Parties and Service

I.      Plaintiff, State of Texas, has appeared in this action and may be served with a notice of

this Plea by sending a copy to its attorney, the Attorney General of Texas, Greg Abbott, at P. 0.

Box 12548, Austin, Texas 78711-2548.

2.      Defendant Xerox Corporation is a corporation organized under the laws of New York has

agreed to accept service with process upon its Attorney in this suit. Defendant Xerox State

Health Care, LLC, f/k/a ACS State Healthcare, LLC (misnamed by the State of Texas as ACS

State Healthcare, LLC, a Xerox Corporation is a wholly-owned subsidiary of Xerox Corporation

organized under the laws of the State of Delaware with Texas offices at 2828 N. Haskell Ave.,

Dallas, Texas 75204, and has agreed to accept service with process upon its Attorney in this suit.



Plea in Intervention
Page I of25
Defendant Xerox Corporation acquired Defendant ACS in 2010. On infonnation and belief,

ACS State Healthcare, LLC, changed its name to Xerox State Healthcare, LLC, on April 1, 2012.

Defendants are referred to hereinafter as "Xerox Defendants."

3.     Dr. Richard F. Herrscher is a licensed Texas dentist, approved Medicaid provider. Dr

Richard F. Herrscher can be served through his undersigned counsel.

                                   Jl. .Jurisdiction and Venue

4.     This Court has subject-matter jurisdiction in that the amounts sought by Intervenor from

aU parties (both Plaintiff and Defendants) are in excess of the minimal jurisdiction limits of this

court. Intervenor affirmatively pleads that this suit is not governed by the expedited-actions

process in TEXAS RULE OF CIVIL PROCEDURE 169 because Intervenor seeks monetary relief over

$100,000.

5.     This Court has jurisdiction over all parties in this petition because:

       a) The State has waived sovereign immunity and is subject to Intervenor's claims;

       b) This Court has jurisdiction over Xerox Defendants because each Defendant does

            business in the State of Texas and committed the unlawful acts alleged in this petition

            in whole or part in Texas.

6.      Venue is proper in Travis County under TRCP §15.020 because this suit involves a

"major transaction"; Venue is pennissive under TRCP § l 5.035(a) because Intervenor asserts

claims for breach of contract. Venue is proper pursuant to TRCP §15.02 because all or a

substantial part of the events or omissions giving rise to the claim occurred in Travis County.

Many of the unlawful acts committed by the State and Xerox Defendants were committed in

Travis County, including the making of false statements and misrepresentations of material fact.




Plea in Intervention
Page 2 of25
                                ID. Intervenor's Interest in the Suit

7.      Intervenor has a judicial interest in the matters and controversy in this litigation. The

relationship between Intervenor, the State as the Plaintiff and the Xerox Defendants is a tripartite

arrangement necessitating that, in the interest of judicial economy and justice, all claims be

bound and subsumed into one cause of action. Upon information and belief, Intervenor was

initially sued by the State in a qui tam action wherein the State alleged that Intervenor defrauded

the State. The State has elected to pursue its remedies against the Intervenor in an administrative

hearing. Now, the State has sued Xerox in State Court on the same facts, alleging that Xerox has

committed fraud against the State. Intervenor has claims against both the State and Xerox. It is

assumed that Xerox will have claims against the State, and perhaps allege claims against the

Intervenor. All of the different parties' claims are inextricably intertwined, as they relate to

Intervenor's submission of prior authorization requests to Xerox, the handling of those claims by

the Xerox Defendants, the State's handling and oversight of its agent Xerox in Xerox's

performance of its contractual and legal duties, and State's subsequent legal action against the

lntervenors for services approved by Xerox.

                                             IV. Facts

What .is Prior Authorization?

8.      Texas Medicaid requires that orthodontic services be independently and objectively

scrutinized before the State consents to treatment and payment. Prior authorization is the

mechanism the State uses to detennine the medical necessity of non-emergency orthodontic

items/services prior to delivery of those items/services. Pursuant to Texas Health and Human

Services Commission (hereinafter "HHSC") rules, Texas Medicaid greatly restricts when it will

pay for orthodontic services:



Plea in Intervention
Page 3 of25
        Orthodontic services for cosmetic reasons only are not a covered Medicaid
        service. Orthodontic services must be prior autho1·ized and are limited to
        treatment of severe handicapping malocclusion and other related conditions as
        described and measured by the procedures and standards published in the
        [TMPPM 1].

25 Tux. ADMIN. CODE §33.71 (emphasis added). Prior authorization is a statement of assurance

to the orthodontic provider that, absent an intervening disqualifying factor, the delivery of the

requested orthodontic service has been deemed by Xerox to be medically necessary, and

therefore approved by the State.

9.      The prior authorization process is straightforward. Texas Medicaid requires that a dental

provider send documentation (x-rays, cephalographs, photos, etc.) regarding the patient's

orthodontic condition to Xerox for review. In addition, the orthodontic provider submits his

professional opin ion of the patient on a Handicapping Labia-lingual Deviation index (HLD)

score sheet. Xerox knew providers relied entirely on the prior authorization process because

approval was a mandatory prerequisite to providing orthodontic services and being paid. Once

Xerox issued its prior authorization decision, the decision was not appealable by the provider.

l 0.    The HLD scoring system combines a number of treatable orthodontic conditions into an

index. HLD score sheets use a mix of objective and subjective conditions to determine whether a

Medicaid patient qualifies for orthodontic services. The fact that the HLD score sheet requires

both objective and subjective findings highlights the importance of Xerox perfom1ing a thorough

prior authorization review.

The History of Orthodontic Prior Authorization.

11.     The process for reviewing and approving orthodontic prior authorization requests pre-

dates the defendant Xerox's handling of Medicaid claims processing. The National Heritage


1
 "TMPPM" is the Texas Medicaid Provider Procedures Manual, which is issued yearly by the HHSC and provides
valuable guidance to Medicaid providers.

Plea in Intervention
Page 4 of25
Insurance Corporation (NHIC) was responsible for reviewing prior authorization requests before

Xerox assumed the contract in January 2004. Starting January l, 2004, Xerox acted as an

independent contractor, and was a contracted agent of the State, under the contract with HHSC.

Xerox was responsible for reviewing each orthodontic service request, and Xerox was further

charged with the responsibility to grant or deny each prior authorization request per the program

requirements. The result was that Xerox had the final say in determining the medical necessity of

each request for orthodontic services.

12.    Prior to assuming the NHIC contract, and for a period of time after assuming the contract

from NHIC, Xerox received training from NHIC personnel regarding the proper method for

receiving and processing orthodontic prior authorization requests. NHIC personnel explained

how and why the review of each prior authorization submission was important, and walked

Xerox through the process. Despite its training from NHIC, Xerox had no intention of following

the prior authorization system that had been in place for years, nor did Xerox intend to otherwise

meet the prior authorization requirements set out in its contract, the TMPPM and required by

state law.

Xerox rejects its contractual responsibilities.

13.     When Xerox took over the contract m 2004, it immediately abandoned the prior

authorization review process that had been setup by NHIC. Xerox never intended to fulfill its

orthodontic prior authorization responsibilities to I-IHSC. From 2004 to 2011, Xerox continually

misrepresented that it was acting in compliance with its contractual duties.

14.     It is now known that Xerox failed to adequately staff their prior authorization division

with knowledgeable medical professionals. Xerox employed only one licensed dentist from 2004

through 2011, which was far short of the manpower necessary to handle the review of tens of



Plea in Intervention
Page 5 of25
thousands of orthodontic prior authorization requests every year. Xerox could not reasonably

have expected to handle such a workload by employing only one dentist.

Xerox potentially commits thousands of violations.

15.        It is believed Xerox allowed " dental specialists"-unlicensed, unqua lifi ed individuals-

to render prior authorizatio n opinions regarding the medica l necessity of requested orthodontic

services. The "dental specialist" approvals were not reviewed or ratified by Xerox's licensed

denta l director or another qualified dental profess ional. These actions not only violated Xerox's

contractual obligations, they may have also violated other Texas law such as the Dental Practice
       2
Act.       It is believed these unlicensed Xerox "specialists" rendered tens of thousands of prior

authorization approvals/medical opin ions in violatio n of Texas law.

16.        Xerox was paid by the state for each prior authorization decision that was made. It is

believed that Xerox employed unlicensed "specialists," rather than licensed Texas dentists, as a

profit generating measure.

17.        From January 2005 through February 20 12, Intervenor subm itted prior authorization

requests, as required, to Xerox for a determ ination of medical necessity. Unbeknownst to

Intervenor, Xerox's dental specialists-not the dental director-approved a lmost all of

Intervenor's requests. Xerox's prior authorization approvals were promises that:

           a) the requested orthodontic services were medically necessary, and/or

           b) the approval had bee n issued by a licensed dentist, and/or

           c) the approval was an actual and legitimate denta l diagnosis, and/or

           d) the requested orthodontic services were allowable under Texas law and as permitted


2
  Texas Occupations Code §25 .1.003 prevents unlicensed individuals from diagnosing conditions of the human teeth
and mouth. Section 256.00 I states that a person may not practice dentistry without a license. Thus, state law requires
that opinions regarding medical necessity of orthodontic treatment must be made by licensed dentists. Section
264 .15 I prescribes penalties for certain violations of the Dental Practice Act.

Plea in Intervention
Page 6 of25
by Medicaid policy, the TMPPM, and HHSC rules, and/or

        e) a proper, thorough and legal review had been made, and/or

        t) future orth odontic services would be properly reimburseable to Intervenor, absent some

intervening disqualification (such as the patient's ineligibility).

18.     Because Xerox was charged with determining medical necessity, and because prior

authorization approval was a mandatory prerequisite to furnishing services, the promises were

material. Intervenor expected performance of these promises. Intervenor relied on Xerox.

Further, Xerox promised that its subsequent payments to Intervenor (after the services had

actually been delivered) were made because the services had been, in fact, properly approved as

medically necessary. Each prior authorization approval represents a separate violation of the law

if Xerox's approval was issued illegally and/or in violation of its contractual obligations.
Xerox actively concealed its potentially illegal activity.

19.     Xerox withheld the truth regarding its prior authorization program. In an attempt to

publicly appear consistent with NHIC's prior authorization process, Xerox continued to require

that dental providers (such as Intervenor) submit all supporting documentation for each HLD

score sheet. Jt is now believed that, incredibly, Xerox did nothing with that documentation, other

than assure that it had been submitted by the provider. It is believed that Xerox's specialists were

instructed to forward to its dental directo r only those requests that had scored below the

threshold for orthodontic services (i.e. below 26 points on the HLD score sheet), or had some

provider justification attached. As a result, only I 0% of the orthodontic prior authorization

requests were actually forwarded to Xerox's one licensed dentist.            Xerox's actions were

calculated to make Xerox appear compliant with its contract and HHSC policies, while Xerox

knew that its actions were entirely inconsistent with the letter and spirit of its obligations.



Plea in Intervention
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Effectively, then, Xerox's actions not only damaged the Medicaid program directly by approving

services without detenn ining their medical necessity, but Xerox's deception also exacerbated the

problem by failing to give providers guidance regarding the proper standard for medical

necessity, thus causing these providers substantial damages.

20.       For the past ten years, Xerox has continued to publicly represent to the world that it was

fulfilling its contractual and legal responsibilities. Based on Xerox's representations that it was

fulfil ling its duties to the State, Xerox had its contract with HHSC repeatedly renewed from 2004

through the present. Each year that Xerox had its contract renewed, it represented that it would

fulfill its contractual obligations and abide by Texas law requiring that decisions about medical

necessity be rendered o nly by licensed dentists. Xerox made those representations knowing that

it had not done so in the past, and had no intention of changing its procedures to do so in the

fucure.

The Frew decision magnifies Xerox's acts.

21.       In September 2007, after fifteen years of litigation on the subject, Texas was ordered to

implement a corrective action plan that increased the Medicaid reimbursement rates to all dental

providers. That plan was required pursuant to the Frew case3 , which was a 1993 class-action

lawsuit against the HHSC alleging that Texas' Medicaid reimbursement rates were so low that

they prevented indigent children from receiving timely, comprehensive health care.

22.       In response to Frew 's corrective action plan, the 2007 Texas Legislature allocated $707

million ($1.8 billion in state and federal funds combined) to increase medical and dental



3
 Frew v. Gilbert, 109 F. Supp. 2d 579 (E.D. Tex. 2000) vacated sub nom. Frazar v. Gilbert, 300 F.3d 530 (5th Cir.
2002) rev'd sub nom. Frew ex rel. Frew v. Hawkins, 540 U.S. 431, 124 S. Ct. 899, 157 L. Ed. 2d 855 (2004) and
aff'd in part, appeal dismissed in part sub nom. Frazar v. Hawkins, 376 F.3d 444 (5th Cir. 2004); Frew v. Hawkins,
40 I F. Supp. 2d 619 (E.D. Tex. 2005) affd sub nom. Frazar v. Ladd, 457 F.3d 432 (5th Cir. 2006); Hawkins v.
Frew, 549 U.S. 1118, 127 S. Ct. 1039, 166 L. Ed. 2d 714 (2007).


Plea in Intervention
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reimbursement rates. The increase in dental reimbursement rates was intended to entice dentists

to become Medicaid providers. It worked . The state raised payment rates for denlal services, and,

as a result, the number of dentists participating in Medicaid increased fro m 45.4% in 2007 to

63.4% in 2010. As expected indeed, as intended spending on Texas's dental services increased

dramatically.

23 .    Although the num ber of prior approval requests increased by 240% between 2007 and

2010, Xerox continued to employ only one dentisL That dentist was ne ither tasked with nor

responsible for supervising the clerical specialists that were issuing the approvals.

24.     By 2010, orthodontic spending under Texas' Medicaid program had skyrocketed. Xerox

was the sole entity responsible for overseeing th is increase, because it was the sole gatekeeper

for the approval and payment of orthodontic services. Although the Texas Legislature had

increased fundin g to attract dentists into the Medicaid program, all of the budgeted fund s were

required to be spent only on medically necessary services.

The Office of Inspector General seeks recovery from Medicaid providers.

25.    In early 20 11 , a series of news stories began highlight ing the large amount of money

being spent on orthodontics in Texas. In July 20 11, the Federal government notified Texas of its

intent to audit whether Texas' prior authorization process was ensuring that only medically

necessary orthodontic cases were being approved and paid. With the prospect of a federal

clawback action looming against Texas because of Xerox's prior authorization failures, the

Texas Office of Inspector General (hereinafter "State") took a drastic step. Beginning in 2011,

the State generated a list of the top Medicaid orthodontic billers and placed them on " payment

hold." Intervenor was one of those providers.

26.     Given £ntervenor's proximity to some of the state's poorest children, and the mandates of



Plea in Intervention
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the Frew decision, Intervenor served a large Medicaid patient population. Because it served a

large Medicaid population, it submitted a large number of prior authorization requests to Xerox

fro m 2004 through 20 11.

27.     Intervenor d id not know that Xerox was failing to perform a true and accurate review for

medical necessity. Intervenor relied on Xerox's prior authorization approvals to confirm that

dentists' analysis was proper and consistent with Medicaid standards and requirements.

28.    Again unbeknownst to Intervenor, State audits in 2008 and 2012 concluded that most, if

not almost all, of the prior authorization requests for patients with HLD scores of 26 or greater

(indicating medical necessity) had not been actually "evaluated" at all by Xerox. These State

audits made the Federal government's pending audit especially dangerous to Texas, because the

2008 and 20 12 audits were admissio ns that Xerox had been approving and paying c laims that

may not have met the federal standards for prior authorization. Thus the State, through the

Attorney General, concluded that a true fi nding of med ical necessity had in reality not occurred.

The Attorney General claimed that billing for services that are not necessary is fraud, despite

Xerox's prior authorization approvals.

29.     It is now believed that rather than prosecute Xerox for its failure to properly evaluate

dentists' prior authorization requests, the State and the Texas Attorney General protected Xerox.

This protection included the State failing to allow TMHP to hire additional medically licensed

staff, and in 2008-2009 telling TMHP to continue its prior authorization practices. Although the

Attorney General took immediate action against the providers, the Attorney General refused to

hold Xerox accountable for its orthodontic "approvals," its repeated contractual failures, or its

violation of State law. Instead, the Attorney General made fraud allegations against each of the

top 25 dental providers, including Intervenor, which has caused more injury and damages to



Plea in Intervention
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Intervenor. Stated differently, Xerox issued its approvals through a process that gutted the State's

belief in the accuracy of Xerox's decision, and the Texas Attorney General punished the

providers instead of Xerox.

30.     Because the acts/omissions of Xerox so undermjned the process, the State eventually

instituted a "payment hold" against Intervenor. A payment hold temporarily freezes future

Medicaid payments to a provider, despite the provider's ongoing participation in the Medicaid

program. The payment hold against Intervenor was issued pursuant to what the State called a

"credible allegation of fraud" regarding Intervenor's orthodontic prior authorization requests.

The State placed a I00% payment hold against Intervenor's orthodontic billings.

3 l.    At the time the Attorney General began prosecuting Intervenor and similarly situated

Medicaid providers, it knew Xerox, not [ntervenor, had the sole authority and responsibility to

authorize orthodontic services and payments. The Attorney General knew that the State's audits

of Xerox in 2008 and 2012 had concluded that Xerox was violating its contract with the State,

violating its own State-approved policies and procedures, and violating State law. Nevertheless,

the Attorney General continued to only prosecute dental providers like the Intervenor; the

Attorney General refused to hold Xerox responsible. ln fact, in one shameless and brazen

demonstration of State's unwavering protection of Xerox, the Deputy Director of Texas' Office

of the Inspector General testified in a hearing that Xerox's acts and omissions were so egregious

they were outside the course and scope of Xerox's agency with State. 4 Upon information and

belief, the State and the Attorney General protected Xerox for over 6 years fearing that revealing

the State' s culpability would subject the State to a federal clawback for hundreds of millions of


4
 lncredibly, that testimony came in an administrative proceeding ia which the State was seeking $8 million from a
dental provider for following Xerox' s instructions to provide braces to the provider's patients. The idea that the
State could not hold Xerox responsible for its contractual obligations because Xerox had done such a poor job that it
was actiug outside ofi1s contract is a novel and imaginative reason not to prosecute Xerox.

Plea in Intervention
Pagel l of25
dollars. lnstead, the State and the Attorney General pointed at the dental providers.

32.     Ultimately, the evidence of Xerox's failures, and the State's refusal to correct Xerox for

over 6 years, became too much to hide. Three months after some providers filed suit against

Xerox. and following a series of news stories questioning why Xerox had not suffered for its

failures, the Attorney General reversed course. On May 9, 2014, the State, through the Texas

Attorney General, filed this lawsuit against Xerox for fraud, basically mirroring the suit filed

approximately I 00 days earlier by similarly situated providers. The State 's claims in this fraud

lawsuit include admissions that the State knew as early as 2006 that Xerox 's actions were

improper.

33.     As a result of the payment hold, Intervenor was required to make significant financial

concessions and changes to its business. Intervenor also engaged legal counsel to defend itself

from the State's claims, at a significant expense that continues today.

34.     The State's allegations against lntervenor are rooted in two assumptions. First, the State

assumes Intervenor's prior authorization requests were not properly vetted by Xerox; that is,

Xerox approved Intervenor's requests without knowing whether approval was actually proper.

Because Xerox is not a party to Intervenor's administrative case, Intervenor is prevented from

determining whether Xerox. did, in fact, perform a proper review of Jntervenor's prior

authorization requests. By intervening in this lawsuit, lntervenor seeks to address that question,

and finally determine whether Xerox reviewed Intervenor's requests as required by its contract

and the law.

35.     Regarding the State's second assumption, the State alleges some of Intervenor's requests

were approved when, in fact, they should have been denied. lntervenor denied that assertion in

the administrative case, and Intervenor continues to deny that claim here. A11 services provided



Plea in Intervention
Page 12 of25
to Intervenor's patients were actually medically necessary, regardless of what Xerox decided and

in any event under Medicaid guidelines once the authorization was approved, lntervenor was

required to provide the services.

36.     The State continues to aggressively fight any allegation or affirmative defense that could

result in Xerox being held accountable for its part in these HLD scoring cases, despite the State's

contentions in the District Court case to the contrary. Damages continue to accrue.

                                       V. Causes of Action

A. Intervenor's Claims Against Xerox

      Common Law Fraud (Fraudulent Misrepresentation and Fraudulent Inducement)

37.     Intervenor re-alleges and incorporates the above facts and allegations as if fully set out

here in. Xerox's prior authorization approvals were false representations made to Intervenor. lt is

believed Xerox knowingly issued these prior authorizations to Intervenor because Xerox knew

that it was approving requests without a proper medical review, and/or because it approved the

prior authorization requests without any knowledge of their truth. It is believed Xerox intended

for Intervenor to rely on the approvals as a prerequisite for providing the requested services.

Approval was material because it was a mandatory prerequisite for payment. lntervenor actually

and justifiably relied on Xerox's fraudulent approvals.

38.     Xerox's approvals induced lntervenor to continue to grade subsequent HLD requests in

the same or similar manner, and led Intervenor to believe that their requests were consistent with

Medicaid standards and requirements.

39.     Xerox's fraudulent approvals caused injury to Intervenor. As a result of Xerox's actions,

Intervenor subm itted requests for payment and Xerox actually paid for those services, Intervenor

was placed on payment hold, Intervenor is forced to defend itself in an administrative payment


Plea in Intervention
Page 13 of25
hold hearing, and Intervenor is fac ing administrative claims by HHSC for repayment (including

claims for treble damages and attorney fees). lntervenor's reputation and business have suffered

severe injury. Intervenor seeks recovery of actual and exemplary damages, interest, court costs,

and attorney fees.

                          Breach of the Xerox-State of Texas Contract

40.      Intervenor re-alleges and incorporates the above facts and allegations as if fu lly set out

herein. In the alternative, Xerox's actio ns constitute a breach o f Xerox's contract with the State

for the benefit of Intervenor. Xerox's contract with the state required that it conduct a proper,

thorough and legal review of prior authorization requests for the purpose of determining medical

necessity. To that end, Xerox should have employed a licensed dentist.

41..     Xerox was an agent of the State of Texas engaged specifically for the purpose of

determining medical necessity. The third pa1ty benefi ciaries of that Xerox-State o f Texas

contract were Medicaid patients and Intervenor. The patients were entitled to receive orthodontic

services that were medically necessary. Intervenor was responsible for actually delivering the

orthodontic services that Xerox had deemed medically necessary. Thus, Intervenor was a third

party beneficiary that relied on Xerox's approvals.

42.      Xerox breached its contract by, inter alia, failing to provide q ualified staff; possibly

violating Texas law; permitting non-dentists to make determinations of medical necessity; and

issuing medical opinions without conducting a reasonable and prudent examination of evidence.

The breaches were material, and recurred across many different Medicaid patients and for many

years.

43.      Xerox's actions proximately caused Intervenor's injury. Intervenor's injuries were

caused-in-fact by Xerox 's actions, and they were foreseeable. Because Xerox's pr ior



Plea in Intervention
Page 14 of25
authorization was a necessary prerequisite to providing services, Intervenor relied entirely on

Xerox's determinations regarding medical necessity; thus, Xerox's actions were the direct factual

cause of Intervenor's injuries. Xerox's actions were foreseeable in that a person of ordinary

intelligence should have anticipated that issuing a decision without actually reviewing or

considering the evidence (x-rays, photos, models, etc.) would eviscerate the credibility and

reliability of the decision. Once the State assumed that Xerox's approvals were not trustworthy,

it was foreseeable that the State would demand repayment, and/or would require Intervenor to

independently do Xerox's job after the fact by proving that payment was proper because the

services were medically necessary and reimbursable under Texas Medicaid law.

44.     Intervenor suffered and continues to suffer significant damage. Intervenor seeks damages

that would have given the Intervenor the benefit of the bargain by putting them in as good a

position as they would have been in if the contract had been performed.         Intervenor seeks

reliance interest damages to restore the expenditures Intervenor made in reliance on Xerox's

contract with the state and the approvals that Xerox made under that contract. Intervenor also

seeks damages for its restitution interest to restore money sought by the Office of the Inspector

General from Intervenor. Such damages would put the Intervenor in as good a position as it

would have been in if the contract had been properly fulfilled. ln addition, Intervenor seeks

liquidated damages as set out in the Xerox-State of Texas contract. Intervenor has engaged legal

counsel to defend itself from the State's charges, and those legal expenses continue today.

Intervenor has incurred benefit of the bargain damages, out-of-pocket damages, lost profits, lost

future profits, loss of credit, and loss of goodwill.   Intervenor seeks recovery of actual and

exemplary damages, interest, court costs, and attorney fees.




Plea in Intervention
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                          Breach of Contract (Promissory Estoppel)

45.     Intervenor re-alleges and incorporates the above facts and allegations as if fully set out

herein. In the alternative, Xerox's actions constitute promissory estoppel.

46.     Xerox' s prior authorizations constitute promises to Intervenor in numerous ways.

Because prior authorization was a prerequisite to fu rnishing services, and because Xerox was the

entity charged with discharging prior authorization duties, Intervenor reasonably, substantially,

and foreseeably relied on Xerox's promises.

47.     Intervenor suffered and continues to suffer significant damage. Intervenor suffered

reliance damages by investing time, labor, equipment, and orthodontic appliances in each

Medicaid patient that Xerox approved. Cntervenor has engaged legal counsel to defend itself from

the State's charges, and those legal expenses continue today. Intervenor has been required to do

Xerox 's job after the fact-namely, demonstrate that the services were medically necessary and

properly reimbursable under Texas Medicaid law. Lntervenor has incurred benefit of the bargain

damages, out-of-pocket damages, lost profits, lost future profits, loss of credit, and loss of

goodwill. All of these damages were directly and/or proximately caused by Xerox's promises.

Intervenor seeks recovery of actual and exemplary damages, interest, court costs, and attorney

fees.

                            Negligent Hiring/Negligent Supervision

48.     lntervenor re-alleges and incorporates the above facts and allegations as if fully set out

herein. Xerox's actions constitute negligent hiring and/or negligent supervision. Xerox was

requ ired to render medical diagnoses. To that end, Xerox was required by law to employ a

licensed dentist to render a diagnosis regarding medical necessity. Xerox was also required by

law to properly supervise its employees to make sure diagnoses were made only by licensed



Plea in Intervention
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dentists.

49.     Xerox knew or should have known that decisions regarding medical necessity can only

be rendered by licensed personnel. Texas Occupations Code section 251.003 defines the practice

of dentistry to include a diagnosis of the human mouth ancl/or teeth; section 256.001 states that a

person may not practice dentistry without a license; section 264.15 1 makes it a third-degree

felony to practice dentistry without a license.

50.     Xerox's actions proximately caused Intervenor' s injury. Intervenor's injuries were

caused-in-fact by Xerox's actions, and they were foreseeable. Because Xerox's prior

authorization was a necessary prerequisite to providing services, Intervenor relied entirely on

Xerox's determinations regarding medical necessity; thus, Xerox's actions were the direct factual

cause of Intervenor's injuries. Xerox's actions were foreseeable in that any person of ordinary

intelligence should have anticipated that paying Intervenor for services that have not properly

been determined to be medically necessity would precipitate a demand for repayment, and/or

would require Intervenor to independently do Xerox's job after the fact by proving that payment

was proper because those services were medically necessary and were reimbursable under Texas

Medicaid law.

51.     Intervenor suffered and continues to suffer significant damage. Intervenor suffered

reliance damages by investing the cost of services for each Medicaid patient that Xerox

approved. lntervenor has engaged legal counsel to defend itself from the State's charges, and

those legal expenses continue today. Intervenor suffered and continues to suffer significant

damage to its reputation, business, referral base, earnings and earning power. Intervenor has

suffered inconvenience and loss of enjoyment of life in that he has had to dedicate significant

mental and personal capital to doing Xerox' s job. Intervenor has suffered exemplary damages



Plea in Intervention
Page 17 of25
because Xerox's conduct was grossly negligent, outrageous and malicious, and such conduct

should be penalized so that it is deterred in the future. Intervenor seeks recovery of actual and

exemplary damages, interest, court costs, and attorney fees.

                                           Negligence

52.     Intervenor re-alleges and incorporates the above facts and allegations as if fully set out

herein. Xerox's actions constitute negligence and gross negligence. Xerox was required to render

medical diagnoses. To that end, Xerox had a duty to employ a licensed dentist to render a

diagnosis supporting or denying medical necessity. Xerox had a duty to assure that the personnel

had appropriate education, training and experience to render such a finding. Xerox had a duty to

review the supporting prior authorization documentation (such as x-rays and photos) to

detennine whether the requested services were medically necessary.

53.     Xerox's actions breached the standard of care because Xerox: failed to provide prior

authorization staff that were properly licensed, qualified and experienced dental professionals;

violated the law, specifically the Dental Practice Act, by pennitting non-dentists to make

determinations of medical necessity, and; issued medical opin ions (prior authorizations) without

conducting a reasonable and prudent examination of evidence.

54.     Xerox's actions proximately caused Intervenor's injury. Intervenor's injuries were

caused-in-fact by Xerox 's actions, and they were foreseeable. Because Xerox's prior

authorization was a necessary prerequisite to providing services, Intervenor relied entirely on

Xerox's detenninations regarding medical necessity; thus, Xerox's actions were the direct factual

cause of Intervenor's injuries. Xerox's actions were foreseeable in that any person of ordinary

intelligence should have anticipated that paying Intervenor for services that have not properly

been determined to be medically necessity would precipitate a demand for repayment, and/or



Plea in Intervention
Page 18 of25
would requ ire Tntervenor to independently do Xerox's job after the fact.

55.    Intervenor suffered and continues to suffer significant damage to its reputation, business,

referral base, earnings and earning power. Intervenor has engaged legal counsel to defend itself

from the State's charges, and those legal expenses continue today. Dr. Richard F. Herrscher has

suffered inconvenience and loss of enjoyment of life in that he has had to dedicate significant

mental and personal capital to doing Xerox's job. Intervenor has suffered exemplary damages

because Xerox's conduct is grossly negligent, outrageous and malicious, and such conduct

should be penalized so that it is deterred in the future. Intervenor seeks recovery of actual and

exemplary damages, interest, court costs, and attorney fees.

                                  Negligent Misrepresentation

56.     interveno r re-alleges and incorporates the above facts and allegations as if fully set out

herein. Xerox's actions constitute negligent misrepresentation. Xerox' s actions constitute

misrepresentations to Intervenor in numerous ways. Because, inter alia, prior authorization

approval was a prerequisite to furnishing services, these representations guided and controlled

intervenor's responses. Intervenor justifiably relied on these representations.    Further, Xerox

represented that its prior authorization approvals were dispositive of medical necessity;

Intervenor expected that, once approved, no further inquiry into the medical necessity of the

services would be required. Further, Xerox represented that its subsequent payments to

Intervenor (after the services had actually been delivered) were made because services had been,

in fact, properly approved as medically necessary.

57.     Xerox did not exercise reasonable care or competence in making its detenninations and

representations. Xerox knew or should have known that its representations were false.

58.     Because prior authorization was a prerequisite to furnish ing services, and because Xerox



Plea in Intervention
Page 19 of25
was the entity charged with discharging prior authorization duties, Intervenor reasonably,

substantially, foreseeab ly, and justifiably relied on Xerox's representations.

59.       Intervenor suffered and continues to suffer significant damage. Intervenor suffered

reliance damages by investing time, labor, equipment, and orthodontic appliances in each

Medicaid patient that Xerox approved. Intervenor has engaged legal counsel to defend itself from

the State's charges, and those legal expenses continue today. Intervenor has been required to do

Xerox's job after the fact. Intervenor has incurred benefit of the bargain damages, out-of-pocket

damages, lost profits, loss of credjt, and loss of goodwill. All of these damages were directly

and/or proximately cause by Xerox's negligent misrepresentations. Intervenor seeks recovery of

actual and exemplary damages, interest, court costs, and attorney fees.

                       Gross Negligence I Misapplication of Fiduciary Property

60.       Lntervenor re-alleges and incorporates the above facts and allegations as if fully set out

herein. Plaintiffs plead Xerox committed gross negligence and/or the misapplication of fiduciary

property which would entitle Intervenors to unlimited punitive damages.

B. lntervenors' Claims Against The State of Texas

                                   Waiver of Sovereign Immunity

61.       Lntervenor re-alleges and incorporates the above facts and allegations as if fully set out

herein.    For a number of reasons, the State has waived sovereign immunity for claims by

Intervenor. including the facts that the State brought, threatened and/or has taken civil and/or

administrative action against Intervenors, and because the State has filed suit against Xerox.

                                    Conspiracy/Joint E nterprise

62.       Intervenor re-alleges and incorporates the above facts and allegations as if fully set out

herein. In the alternative, former Deputy Inspector General Jack Stick has stated publicly that



Plea in Intervention
Page 20 of2S
acts and omissions of Xerox were so egregious as to be outside the course of scope of Xerox's

agency relationship with the State. Assuming same to be true, then the State conspired with

Xerox to breach the contract or allow the breach to continue, conspired to withhold funds from

Intervenor but not Xerox, and conspired to falsely accuse Intervenor of fraud/crime.

63.    The State conspired with Xerox to allow Xerox to violate its various contractual duties.

The State permitted Xerox to process as many prior authorizations as possible without the

required clinical dental review and without using medically knowledgeable personnel. The State

conspired with Xerox to allow Xerox to violate State and Federal law. The State and Xerox

created a scheme to rubber stamp and/or allow no legitimate review of prior authorizations

submitted by the dentists. The conspiracy was committed with the intent to shift blame from the

State and its agent, improperly blame the Intervenors, and enrich the State and Xerox. By

recouping money from providers that were not actually to blame, the State and Xerox hoped to

limit their own liability in the event of a Federal clawback action, and/or respond to unflattering

news reports of Texas' payments for Medicaid braces. This agreement and ensuing acts of the

party to blame the dentist providers for their own improper acts and omissions is a proximate

cause of the injury to Intervenors.

                           Not Liable for Illegal Acts of Third Party

64.     Intervenor re-alleges and incorporates the above facts and allegations as if fully set out

herein. As alleged by the State in Section VIII paragraph 46 of the State's petition, Xerox has

committed or is about to commit unlawful acts. The illegal acts of Xerox in failing to provide

proper prior authorization review in rubber stamping the doctors prior authorization requests is

not the fault of the doctors. The doctors are not responsible for or liable to the State for the




Plea in Intervention
Page 21 of25
illegal acts of a third party for which the doctors had no control; the State should not withhold

money from the Intervenors because of the illegal acts of Xerox complained about by the State.

                                       Breach of Contract

65.    Intervenor re-alleges and incorporates the above facts and allegations as if fully set out

herein. Intervenors are a direct or third party beneficiary of the contract with Xerox and the State

of Texas. The State of Texas has breached terms of the contract by failing to supervise Xerox

and/or reviewing the work product of Xerox. This breach by State, which allowed non-

performance by Xerox, has created the pretext by which the State affirmatively sued Intervenors

for repayment. To the extent that the State has withheld money and/or made claims for damages

against Intervenors based on the contracts in question, the State has waived immunity and is

liable up to those amounts plead.

                                           Conversion

66.    Intervenor re-alleges and incorporates the above facts and allegations as if fully set out

herein. State and Federal law required Intervenor to request prior authorization for orthodontic

services. Those prior authorization requests were approved by Xerox, which required Intervenors

to provide the services. The State has unilaterally made a decision to that, based on the acts and

om issions of Xerox, the Intervenor should not have been paid; the State then placed Intervenor

on a payment hold. To the extent that Intervenor has provided services for which Intervenor

should be paid, and money which has been eannarked by the State for that payment but withheld,

the State has converted tbe funds. Jn addition, the States' acts/omissions are a violation of the

Texas Constitution Section 9 in that the acts/omissions constitute a seizure of money held under

the pretext of a payment hold.




Plea in Intervention
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                                            VI. Damages

67.    lntervenors have suffered and are entitled to recover damages including, but not limited

to loss of use of funds sequestered by the State, actual damages, damage to reputation, damage to

business, damage to earnings and earning power, inconvenience, loss of enjoyment of life, fe.es

and expenses, interest, punitive/exemplary damages, and attorney fees.

                                           VII. Conclusion

68.     Xerox's actions have harmed Intervenor because Xerox committed fraud, negligent

hiring, negligence, and gross negligence. Xerox's actions have subjected Intervenor to

unnecessary civil and administrative legal action, and that, io turn has caused additional injury.

Xerox's actions have required Intervenor to perform Xerox's j ob after-the-fact, by proving to the

State that the orthodontic services rendered were medically necessary and appropriate for

reimbursement. The State's actions have harmed lntervenor because the state's conspiracy to

improperly blame the dentists has resulted in meritless legal claims against the Intervenor and

conversion of the Intervenor's property.

                                        VIII. Jury Demand

69.     Intervenor respectfully requests a trial by jury.

                                    IX. Request for Disclosure

70.     Under Texas Rule of Civil Procedure 194, Intervenor requests that Plaintiff the State

disclose, within SO days of the service of this request, the information or material described in

Rule 194.2.



71.     Wherefore, premises considered, Intervenor Dr. Richard F. Herrscher pray that upon final

hearing of the cause, judgment be entered jointly and severally against the Plaintiff the State of



Plea in [ntervention
Page 23 of25
Texas and Defendant Xerox State Healthcare, LLC for damages, together with pre-judgment and

post judgment interest at the legal rate, costs of court, and other such relief to which the

Intervenor may be entitled.

                                          Respectfully _submitted,



                                          J son Ray
                                          Texas Bar No. 240
                                          RIGGS, ALESHIRE & RAY, P.C.
                                          700 Lavaca, Suite 920
                                          Austin, Texas 7870 l
                                          (512) 457-9806 (Telephone)
                                          (512) 457-9866 (Fax)
                                          jray@r-alaw.com


                                            Isl Hart Green wl permission by J Ray
                                          E. Hart Green
                                          Texas Bar No. 08349290
                                          Mitchell A. Toups
                                          Texas Bar No. 20151600
                                          WELLER, GREEN, TOUPS & TERRELL, L.L.P.
                                          Post Office Box 350
                                          Beaumont, Texas 77704-0350
                                          (409) 838-0l01 (Telephone)
                                          (409) 832-8577 (Fax)
                                          hartgr@wgttlaw .com
                                          matoups@wgttlaw.com
                                           ATTORNEYS FOR INTERVENOR
                                           DR. RICHARD F. HERRSCHER




Plea in Intervention
Page 24 of25
                               CERTIFICATE OF SERVICE

        I hereby certify that a true and correct copy of the foregoing Plea in Intervention was

served via e-mail and certified mail, return receipt requested on th is 15th day of May, 2014 on

the follow ing:

Eric .J.R. Nichols
Beck Redden
5 15 Congress A venue, Suite 1750
Austin, Texas, 78701
EN£CHOLS@beckredden.com
Attorney for Xerox Defendants

Raymond Winter
Chief, Civil Medicaid Fraud Division
Assistant Attorney General
Office of the Attorney General
P.O. Box 12548
Austin, Texas 78711 -2548
raymond.winter@texasattomeygeneral.gov
Attorney for the Plaintiff State of Texas




Plea in Intervention
Page 25 of25
                               CAUSE NO. D-1-GV-14-000581

IRMA CANTU-THOMPSON, DDS, PC, AND                   §       IN THE DISTRICT COURT
IRMA CANTU-THOMPSON,                                §
              INTERVENORS,                          §
                                                    §
vs.                                                 §
                                                    §
THE STATE OF TEXAS,                                 §
               PLAINTIFF,                           §
                                                    §       53rd JUDICIAL DISTRICT
vs.                                                 §
                                                    §
XEROX CORPORATION; XEROX                            §
STATE HEALTHCARE, LLC; ACS                          §
STATE HEALTHCARE, LLC, A XEROX                      §
CORPORATION                                         §
              DEFENDANTS.                           §       TRAVIS COUNTY, TEXAS

                                 PLEA IN INTERVENTION

TO THE HONORABLE JUDGE OF SAID COURT:

        NOW COMES, lnna Cantu-Thompson, DDS, PC and fnna Cantu-Thompson,

hereinafter lntervenors, and file this Plea in Intervention, and in support hereof, would

respectfully show the Court the following:

                                     1. Parties and Service

1.      Plaintiff, State o f Texas, has appeared in this action and may be served with a notice of

this Plea by sending a copy to its attorney, the Attorney General of Texas, Greg Abbott, at P. 0.

Box 12548, Austin, Texas 78711-2548.

2.      Defendant Xerox Corporation is a corporation organized under the laws of New York has

agreed to accept service with process upon its Attorney in this suit. Defendant Xerox State

Health Care, LLC, f/k/a ACS State Healthcare, LLC (misnamed by the State of Texas as ACS

State Healthcare, LLC, a Xerox Corporation is a wholly-owned subsidiary of Xerox Corporation

organized under the laws of the State of Delaware with Texas offices at 2828 N. Haskell Ave.,


Plea in Intervention
Page l of25
Dallas, Texas 75204, and has agreed to accept service with process upon its Attorney in this suit.

Defendant Xerox Corporation acquired Defendant ACS in 2010. On in formation and beliet:

ACS State Healthcare, LLC, changed its name to Xerox State Healthcare, LLC, on April 1, 2012.

Defendants are referred to hereinafter as "Xerox Defendants."

3.      Irma Cantu-Thompson, DDS, PC, (hereinafter Thompson) is an approved Medicaid

provider. Thompson can be served through the undersigned counsel.

4.      Irma Cantu-Thompson 1 is a licensed Texas dentist, approved Medicaid provider, and the

owner of Thompson Irma Cantu-Thompson can be served through her undersigned counsel.

                                        II. Jurisdiction and Venue

5.      This Court has subject-matter jurisdiction in that the amounts sought by lntervenors from

all parties (both Plaintiff and Defendants) arc in excess of the minimal jurisdiction limits of this

court. Intervenors affirmatively plead that this suit is not governed by the expedited-actions

process in TEXAS Ruu~ OF CIVIL PROCEDURE 169 because intervenors seek monetary relief over

$100,000.

6.      This Court has jurisdiction over all parties in this petition because:

        a) The State has waived sovereign immunity and is subject to Intervenors' claims;

        b) This Court has jurisdiction over Xerox Defendants because each Defendant does

             business in the State of Texas and committed the unlawful acts alleged in this petition

             in whole or part in Texas.

7.      Venue is proper in Travis County under TRCP §15.020 because this suit involves a

" major transaction"; Venue is permissive under TRCP §15.035(a) because Intervenor asserts

claims for breach of contract. Venue is proper pursuant to TRCP §15.02 because all or a


1
 For the sake of simplicity, the intervenors will be collectively referred to as ..THOMPSON" unless expressly
noted.

Plea in Intervention
Page 2 of25
substantial part of the events or omissions giving rise to the claim occurred in Travis County.

Many of the unlawful acts committed by the State and Xerox Defendants were committed in

T ravis County, including the making of false statements and misrepresentations of material fact.

                               m. Intervenors' Interest in the Suit
8.       lntervenors T HOMPSON and Irma Cantu-Thompson have a judicial interest in the

matters and controversy in this litigation. T he relationship between Intervenors, the State as the

Plaintiff and the Xerox Defendants is a tripartite arrangement necessitating that, in the interest of

judicial economy and justice, all claims be bound and subsumed into one cause of action. Upon

information and belief, lntervenors were initially sued by the State in a qui tam action wherein

the State alleged that lntervenors defrauded the State. The State has elected to pursue its

remedies against the Jntervenors in an administrative hearing. Now, the State has sued Xerox in

State Court o n the same facts, alleging that Xerox has committed fraud against the

State. lntervenors have claims against both the State and Xerox. It is assumed that Xerox will

have claims against the State, and perhaps allege claims against the Intervenors. All of the

different parties' claims are inextricably intertwined, as they relate to l ntervenors' submission of

prior authorization requests to Xerox, the handling of those claims by the Xerox Defendants, the

State's handling and oversight of its agent Xerox in Xerox's performance of its contractual and

legal duties, and State's subsequent legal action against the lntervenors for services approved by

Xerox.

                                             IV. Facts

What is Prior Authorization?

9.       Texas Medicaid requires that orthodontic services be independently and objectively

scrutinized before the State consents to treatment and payment. Prior authorization is the



Plea in Intervention
Page 3 of25
mechanism the State uses to determine the medical necessity of non-emergency orthodontic

items/services prior to delivery of those items/services. Pursuant to Texas Health and Human

Services Commission (hereinafter "HHSC") rules, Texas Medicaid greatly restricts when it will

pay for orthodontic services:

       Orthodontic services for cosmet ic reasons only are not a covered Medicaid
       service. Orthodontic services must be prior authorized and are limited to
       treatment of severe handicapping malocclusion and other related conditions as
       described and measured by the procedures and standards published in the
       (TMPPM2].

25 TEX. ADMIN. CODE §33.71 (emphasis added). Prior authorization is a statement of assurance

to the orthodontic provider that, absent an intervening disqualifying factor, the delivery of the

requested orthodontic service has been deemed by Xerox to be medically necessary, and

therefore approved by the State.

I 0.    The prior authorization process is straightforward. Texas Med icaid requires that a dental

provider send documentation (x-rays, cephalographs, photos, etc.) regarding the patient's

orthodontic condition to Xerox for review. In addition, the orthodontic provider submits his

professional opinion of the patient on a Handicapping Labia-lingual Deviation index (HLD)

score sheet. Xerox knew providers relied entirely on the prior authorization process because

approval was a mandatory prerequisite to providing orthodontic services and being paid. Once

Xerox issued its prior authorization decision, the decision was not appealable by the provider.

11.     The HLD scoring system combines a number of treatable orthodontic conditions into an

index. HLD score sheets use a mix of objective and subjective conditions to detenn ine whether a

Medicaid patient qualifies for orthodontic services. The fact that the 1-ILD score sheet requires

both objective and subjective findings high lights the importance of Xerox perform ing a thorough


2
 "TMPPM" is lhe Texas Medicaid Provider Procedures Manual, whicb is issued yearly by Lhe HHSC and provides
valuable guidance to Medfoaid providers.

Plea in Intervention
Page4 of25
prior authorization review.

The History of Orthodontic Prior Authorization.

12.    The process for reviewing and approving orthodontic prior authorization requests pre-

dates the defendant Xerox's handling of Medicaid claims process ing. The National Heritage

Jnsurance Corporation (NHIC) was responsible for reviewing prior authorization requests before

Xerox assumed the contract in January 2004. Starting January I, 2004, Xerox acted as an

independent contractor, and was a contracted agent of the State, under the contract with HHSC.

Xerox was responsible for reviewing each orthodontic service request, and Xerox was further

charged with the responsibility to grant or deny each prior authorization request per the program

requirements. The result was that Xerox had the final say in determining the medical necessity of

each request for orthodontic services.

13.     Prior to assuming the NHIC contract, and for a period of time after assuming the contract

from NHTC, Xerox received training from NHlC personnel regarding the proper method for

receiving and processing orthodontic prior authorization requests. NHIC personnel explained

how and why the review of each prior authorization submission was important, and walked

Xerox through the process. Despite its training from NHIC, Xerox had no intention of following

the prior authorization system that had been in place for years, nor did Xerox intend to otherwise

meet the prior authorization requirements set out in its contract, the TMPPM and required by

state law.

Xerox rejects its contractual responsibilities.

J4.     When Xerox took over the contract in 2004, it immediately abandoned the prior

authorization review process that had been setup by NHIC. Xerox never intended to fulfill its

orthodontic prior authorization responsibilities to HHSC. From 2004 to 2011, Xerox continually



Plea in Intervention
Page 5 of25
misrepresented that it was acting in compliance with its contractual duties.

l5.      It is now known that Xerox failed to adequately staff their prior authorization division

with knowledgeable medical professionals. Xerox employed only one licensed dentist from 2004

through 20 11, wh ich was far short of the manpower necessary to handle the review of tens of

thousands of orthodontic prior authorization requests every year. Xerox could not reasonably

have expected to handle such a workload by employing only one dentist.

Xerox potentially commits thousands of violations,

16.      It is bel ieved Xerox allowed "dental specialists"-unlicensed, unqualified individuals -

to render prior authorization opinions regarding the medical necessity of requested orthodontic

services. The " dental specialist" approvals were not reviewed or ratified by Xerox's licensed

dental director or another qualified dental pro fessional. These actions not only violated Xerox's

contract ual obligations, they may have also violated other Texas law such as the Dental Practice

Act. 3 1t is believed these unlicensed Xerox "specialists" rendered tens of thousands of prior

authorization approvals/medical opinions in violation of Texas Jaw.

L7.      Xerox was paid by the state for each prior authorization decision that was made. lt is

believed that Xerox employed unlicensed "specialists," rather than licensed Texas dentists, as a

profit generating measure.

18.      From January 2005 through February 20 12, Intervenor submitted prior authorization

requests, as required, to Xerox for a determination of medical necessity. Unbeknownst to

Intervenor, Xerox' s dental specialists-not the dental director-approved almost all of

Intervenor's requests. Xerox's prior authorization approvals were promises that:


3
 Texas Occupations Code §251.003 prevents unlicensed individuals from diagnosing conditions of the human teeth
and mouth. Section 256.00 I states that a person may not practice dentistry without a license. Thus, state law requires
that opinions regarding medical necessity of onhodontic treatment must be made by licensed dentists. Section
264.15 1 prescribes penalties for certain violations of the Dental Practice Act.

Plea in Intervention
Page 6 of25
       a) the requested orthodontic services were m edically necessary, and/or

        b) the approval had been issued by a licensed de11tist, and/or

       c) the approval was an actual and legitimate dental diagnosis, and/or

       d) the requested orthodontic serv ices were a llowable under Texas law and as permitted

by Medicaid policy, the TMPPM, and HHSC ru les, and/or

       e) a proper, thorough and legal review had been made, and/or

       f) future orthodontic services would be properly reimburseable to lntervenors, absent

some intervening disqualification (such as the patient's ineligibility).

19.     Because Xerox was charged with determining medical necessity, and because prior

authorization approval was a mandatory prerequisite to furn ishing services, the promises were

material. lntervenors expected performance of these promises. Intervenors relied on Xerox.

Further, Xerox promised that its subsequent payments to Intervenors (after the services had

actually been delivered) were made because the services had been, in fact, properly approved as

medically necessary. Each prior authorization approval represents a separate violation of the law

if Xerox's approval was issued illegally and/or in violation o f its contractual obligations.
Xerox actively concealed its potentially illegal activity.

20.     Xerox withheld the truth regarding i.rs prior authorization program. In an attempt to

publ icly appear consistent with NHIC ' s prior authorization process, Xerox continued to require

that dental providers (such as Intervenor) submit all supponing documentation for each HLD

score sheet. It is now believed that, incredibly, Xerox d id nothing wit h that documentation, other

than assure that it had been submitted by the provider. It is believed that Xerox's specialists were

instructed to forward to its dental director only those requests that had scored below the

threshold for orthodontic services (i.e. below 26 points on the HLD score sheet), or had some



Plea in Intervention
Page 7 of25
provider j ustification attached. As a result, on ly I0% of the orthodontic prior authorization

requests were actual ly forwarded to Xerox's one licensed dentist.                       Xerox's actions were

calculated to make Xerox appear compliant with its contract and HHSC policies, while Xerox

knew that its actions were entirely inconsistent w ith the letter and spirit of its obligations.

Effecti vely, then, Xerox's actions not only damaged the Med icaid program directly by approvi ng

services without determining their medical necessity, but Xerox's deception also exacerbated the

problem by failing to give providers guidance regarding the proper standard for medical

necessity, thus causing these providers substantial damages.

21.       For the past ten years, Xerox has continued to publicly represent to the world that it was

fulfilling its contractual and legal responsibilities. Based on Xerox's representations that it was

fulfilling its duties to the State, Xerox had its contract with HHSC repeatedly renewed from 2004

through the present. Each year that Xerox had its contract renewed, it represented that it would

fulfill its contractual obligations and abide by Texas law requiring that decisions about medical

necessity be rendered on ly by licensed dentists. Xerox made those representations knowing that

it had not done so in the past. and had no intention of changing its procedures to do so in the

future.

The Frew decision magnifies Xerox's acts.

22.       In September 2007, after fifteen years of litigation on the subject, Texas was ordered to

implement a corrective action plan that increased the Medicaid reimbur sement rates to all dental
                                                                          4
providers. T hat plan was required pursuant to the Frew case                  ,   which was a 1993 class-action



4
 Frew v. Gilbert, 109 F. Supp. 2d 579 (E.D. Tex. 2000) vacated sub nom. Frazar v. Gilbert, 300 F.3d 530 (5th Cir.
2002) rev'd sub nom. Frew ex rel. Frew v. Hawkins, 540 U.S. 431, 124 S. Ct. 899, 157 L. Ed. 2d 855 (2004) aod
afj'd in part, appeal dismissed in part sub nom. Frazar v. Hawkins, 376 F.3d 444 (5th Cir. 2004); Frew v. Hawkins,
401 F. Supp. 2rl 619 (E.D. Tex. 2005) affd sub nom. Frazar v. Ladd, 457 P.3d 432 (5th Cir. 2006); Hawkins v.
Frew, 549 U.S. 1118, 127 S. Ct. 1039, 166 L. Ed. 2d 714 (2007).


Plea in Intervention
Page 8 of25
lawsuit against the HHSC alleging that Texas' Medicaid reimbursement rates were so low that

they prevented indigent children from receiving timely, comprehensive health care.

23.    In response to Frew 's corrective action plan, the 2007 Texas Legislature allocated $707

million ($1.8 billion in state and federal funds combined) to increase medical and dental

reimbursement rates. The increase in dental reimbursement rates was intended to entice dentists

to become Medicaid providers. It worked. The state raised payment rates for dental services, and,

as a result, the number of dentists participating in Medicaid increased from 45.4% in 2007 to

63.4% in 20 I 0. As expected indeed, as intended spending on Texas's dental services increased

dramatically.

24.     Although the number of prior approval requests increased by 240% between 2007 and

20 I 0, Xerox continued to employ only one dentist. That dentist was neither tasked with nor

responsible for supervising the clerical specialists that were issuing the approvals.

25.     By 20 10, orthodontic spending under Texas' Medicaid program had skyrocketed. Xerox

was the sole entity responsible for overseeing this increase, because it was the sole gatekeeper

for the approval and payment of orthodontic services. Although the Texas Legislature had

increased funding to attract dentists into the Medicaid program, all of the budgeted funds were

required to be spent only on medically necessary services.

The Office of Inspector General seeks recovery from Medicaid providers.

26.     In early 20 11, a series of news stories began high lighting the large amount of money

being spent on orthodontics in Texas. In July 2011, the Federal government notified Texas of its

intent to audit whether Texas' prior authorization process was ensuring that only medically

necessary orthodontic cases were being approved and paid. With the prospect of a federal

clawback action looming against Texas because of Xerox 's prior authorization failures, the



Plea in Intervention
Page 9 of25
Texas Office of Inspector General (hereinafter "State") took a drastic step. Beginning in 201 l ,

the State generated    a list of the top Medicaid orthodontic billers and p laced them on "paymenl

hold." Intervenor was one of those providers.

27.     Given Tntervenors' proximity to some of the state's poorest children, and the mandates of

the Frew decision, Intervenor served a large Medicaid patient population. Because it served a

large Medicaid population, it submitted a large number of prior authorization requests to Xerox

from 2004 through 20 I I.

28.     Intervenors did not know that Xerox was failing to perform a true and accurate review for

medical necessity. Jntcrvenors relied on Xerox' s prior authorizatio n approvals to confirm that

dentists• analysis was proper and con sistent w ith Medicaid standards and requ iremen ts.

29.     Again unbeknownst to Intervenors, State audits in 2008 and 20 J 2 concluded that most, if

not almost all, o f the prior authorization requests for patients with HLD scores of 26 or greater

(indicating medical necessity) had not been actually "evaluated" at all by Xerox. T hese State

audits made the Federal government's pending audit especially dangerous to Texas, because the

2008 and 2012 audits were admissions that Xerox had been approv ing and paying claims that

may not have met the federal standards for prior authorization . Thus the State, through the

Attorney General , concluded that a true finding o f medical necessity had in reality not occurred.

The Attorney General claimed that b illing for services that are not necessary is fraud, despite

Xerox's prior authorization approvals.

30.     It is now believed that rather than prosecute Xerox for its fail ure to properly evaluate

dentists' prior authorization requests, the State and the Texas Attorney General protected Xerox.

This protection included the State failing to allow TMHP to hire additional medically licensed

staff, and in 2008-2009 telling TMHP to continue its prior authorization pract ices. Although the



Plea in Intervention
Page 10 of25
Attorney General took immediate action against the providers, the Attorney General refused to

hold Xerox accountable for its orthodontic "approvals," its repeated contractua l fai lures, or its

violation of State law. Instead, the Attorney General made fraud allegations against each of the

top 25 dental providers, including Intervenor, which has caused more injury and damages to

lntervenors. Stated differently, Xerox issued its approvals through a process that gutted the

State's belief in the accuracy of Xerox's decision, and the Texas Attorney General punished the

providers instead of Xerox.

3I.     Because the acts/omissions of Xerox so undermined                the   process, the State

eventuallyinstituted a "payment hold" agajnst Intervenor. A payment hold temporarily freezes

future Medicaid payments to a provider, despite the provider's ongoing participation in the

Medicaid program. The payment hold against Intervenor was issued pursuant to what the State

called a "credible allegation of fraud" regarding Intervenor's orthodontic prior authorization

requests. The State placed a l 00% payment hold against Intervenor's orthodontic billings.

32.     At the time the Attorney General began prosecuting Intervenor and similarly situated

Med icaid providers, it knew Xerox, not Intervenor, had the sole authority and responsibility to

authorize orthodontic services and payments. The Attorney General knew that the State's audits

of Xerox in 2008 and 2012 had concluded that Xerox was violating its contract with the State,

violating its own State-approved policies and procedures, and violating State law. Nevertheless,

the Attorney General continued to only prosecute dental providers like the Intervenor; the

Attorney General refused to hold Xerox responsib le. ln fact, in one shameless and brazen

demonstration of State's unwavering protect ion of Xerox, the Deputy Director of Texas' Office

of the Inspector General testified in a hearing that Xerox's acts and omissions were so egregious




Plea in lntervention
Page 11 of 25
they were outside the course and scope of Xerox's agency with State. 5 Upon information and

belief, the State and the Attorney General protected Xerox for over 6 years fearing that revealing

the State's culpability would subject the State to a federal clawback for hundreds of millions of

dollars. Instead, the State and the Attorney General pointed at the dental providers.

33.     Ultimately, the evidence of Xerox's fai lures, and the State's refusal to correct Xerox for

over 6 years, became too much to hide. Three months after some providers filed suit against

Xerox, and following a series of news stories questioning why Xerox had not suffered for its

fail ures, the Attorney General reversed course. On May 9, 2014, the State, through the Texas

Attorney General, filed this lawsuit against Xerox for fraud, basically mirroring the suit fi1ed

approximately I 00 days earlier by simi larly situated providers. The State's claims in this fraud

lawsuit include admissions that the State knew as early as 2006 that Xerox's actions were

improper.

34.      As a result of the payment hold, Intervenor was required to make sign ificant financial

concessions and changes to its business. Intervenor also engaged legal counsel to defend itself

from the State's claims, at a significant expense that continues today.

35.      The State's allegations against Intervenor are rooted in two assumptions. First, the State

assumes Intervenor's prior authorization requests were not properly vetted by Xerox; that is,

Xerox approved lntervenor's requests without knowing whether approval was actually proper.

Because Xerox is not a party to Intervenor's administrative case, Intervenor is prevented from

determining whether Xerox did, in fact, perform a proper review of Intervenor's prior

authorization requests. By intervening in this lawsuit, Intervenor seeks to address that question,



s Incredibly, that testimony came in an administrative proceeding in which the State was seeking $8 million from a
dental provider for following Xerox's instructions to provide braces to the provider's patients. The idea that the
State could not hold Xerox responsible for its contractual obligations because Xerox had done such a poor job that it
was acting outside of its contract is a novel and imaginative reason not to prosecute Xerox.

Plea in Intervention
Page 12 of25
and finally detenn ine whether Xerox reviewed Intervenor's requests as required by its contract

and the Jaw.

36.     Regarding the State's second assumption, the State alleges some ofln tervenor's requests

were approved when, in fact, they should have been denied. Intervenor denied that assertion in

the administrative case, and intervenor continues to deny that claim here. All services provided

to Intervenor's patients were actually medically necessary, regardless of what Xerox decided and

in any event under Medicaid guidelines once the authorization was approved, Intervenor was

required to provide the serv ices.

37.     The State continues to aggressively fight any allegation or affirmative defense that could

result in Xerox being held accountable for its part in these HLD scoring cases, despite the State's

contentions in the District Court case to the contrary. Damages continue to accrue.

                                       V. Causes of Action

A. lntervenors ' Claims Against Xerox

      Common Law Fraud (Fraudulent Misrepresentation and Fraudulent Inducement)

38.     Intervenor re-alleges and incorporates the above facts and allegations as if folly set o ut

herein. Xerox's prio r authorization approvals were false representations made to Intervenor. It is

believed Xerox knowi ngly issued these prior authorizations to Intervenor because Xerox knew

that it was approving requests without a proper medical review, and/or because it approved the

prior authorization requests without any knowledge of their truth. It is believed Xerox intended

for Lntervenor to rely on the approvals as a prereq uisite for providing the requested services.

Approval was material because it was a mandatory prerequisite for payment. Intervenor actually

and justifiably relied on Xerox 's fraudulent approvals.

39.     Xerox's approvals induced Intervenor to continue to grade subsequent HLD requests in



Plea in Intervention
Page 13 of25
the same or similar manner, and led Intervenor to believe that their requests were consistent with

Medicaid standards and requirements.

40.     Xerox's frau dulent approvals caused injury to Intervenor. As a result of Xerox's actions,

Intervenor submitted requests for payment and Xerox actually paid for those services, Intervenor

was placed on payment hold, Intervenor is forced to defend itself in an administrative payment

hold hearing, and Intervenor is facing administrative claims by HHSC for repayment (including

claims for treble damages and attorney fees). lntervenor's reputatio n and business have suffered

severe injury. Intervenor seeks recovery of actual and exemplary damages, interest, court costs,

and atto rney fees.

                          Breach of the Xerox.State of Texas Contract

41.     Intervenor re-alleges and incorporates the above facts and allegations as if fully set out

herein. In the alternative, Xerox's actions constitute a breach of Xerox's contract with the State

for the benefit of lntervenor. Xerox's contract with the state required that it conduct a proper,

thorough and legal review of prior authorization requests for the purpose of determining medical

necessity. To that end, Xerox should have employed a licensed denti st.

42.     Xerox was an agent of the State of Texas engaged specifically for the purpose of

determining medical necessity. The third party beneficiaries of that Xerox-State of Texas

contract were Medicaid patients and Intervenor. The patients were entitled to receive orthodontic

services that were medically necessary. Intervenor was responsible for actually delivering the

orthodontic services that Xerox had deemed medically necessary. Thus, lntervenor was a third

party benefic iary that relied on Xerox' s approvals.

43.     Xerox breached its contract by, inter alia, fa iling to provide qualified staff; possibly

violating Texas law; permitting non-dentists to make determinations of medical necessity; and



Plea in Intervention
Page 14 of25
issuing medical opinions without conducting a reasonable and prudent examination of evidence.

The breaches were material, and recurred across many different Medicaid patients and for many

years.

44.      Xerox's actions proximately caused intervenor's injury. [ntervenor's injuries were

caused-in-fact by Xerox's actions, and they were foreseeable. Because Xerox's prior

authorization was a necessary prerequisite to providing services, intervenor relied entirely on

Xerox's determ inations regarding medical necessity; thus, Xerox's actions were the direct factua l

cause of Intervenor's injuries. Xerox's actions were foreseeable in that a person of ordinary

intelligence should have anticipated that issuing a decision without actually reviewing or

considering the evidence (x-rays, photos, mode ls, etc.) would eviscerate the cred ibility and

reliability of the decision. Once the State assumed that Xerox's approvals were not trustworthy,

it was foreseeab le that the State would demand repayment, and/or would requ ire Intervenor to

independently do Xerox's job after the fact by proving that payment was proper because the

services were medically necessary and reimbursable under Texas Medicaid law.

45.      Intervenor suffered and continues to suffer significant damage. Intervenor seeks damages

that would have given the lntervenors the benefi t of the bargain by putting them in as good a

position as they would have been in if the contract had been performed.           Intervenor seeks

reliance interest damages to restore the expenditures Intervenor made in reliance on Xerox's

contract with the state and the approvals that Xerox made under that contract. Intervenor also

seeks damages for its restitution interest to restore money sought by the Office of the Inspector

General from lntervenor. Such damages would put the lntervenors in as good a position as it

would have been in if the contract had been properly fulfilled. In addition, Intervenor seeks

liquidated damages as set out in the Xerox-State of Texas contract. Intervenor has engaged legal



Plea in Intervention
Page 15 of25
counsel to defend itself from the State's charges, and those legal expenses continue today.

Intervenor has incurred benefit of the bargain damages, out-of-pocket damages, lost profits, lost

future profits, loss of credit, and loss of goodwill. Intervenor seeks recovery of actual and

exemplary damages, interest, court costs, and attorney fees.

                           Breach of Contract (Promissory Estoppel)

46.     Intervenor re-alleges and incorporates the above facts and allegations as if fu lly set out

herein. In the alternative, Xerox's actions constitute promissory estoppel.

47.     Xerox's prior authorizations constitute promises to Intervenor in numerous ways.

Because prior authorization was a prerequisite to furnishing services, and because Xerox was the

entity charged with discharging prior authorization duties, Intervenor reasonably, substantially,

and foreseeably relied on Xerox's promises.

48.     Intervenor suffered and continues to suffer significant damage. intervenor suffered

reliance damages by investing time, labor, equipment, and orthodontic appliances in each

Medicaid patient that Xerox approved. Intervenor has engaged legal counsel to defend itself from

the State's charges, and those legal expenses continue today. lntervenor has been required to do

Xerox's job after the fact-namely, demonstrate that the services were medically necessary and

properly reimbursable under Texas Medicaid law. Intervenor has incurred benefit of the bargain

damages, out-of-pocket damages, lost profits, lost futu re profits, loss of credit, and loss of

goodwill. All of these damages were directly and/or proximately caused by Xerox's promises.

Intervenor seeks recovery of actual and exemplary damages, interest, court costs, and attorney

fees.

                            Negligent Hiring/Negligent Supervision

49.     lntervenor re-alleges and incorporates the above facts and allegations as if fully set out



Plea in Intervention
Page 16 of25
herein. Xerox's actions constitute negligent hiring and/or negligent supervision. Xerox was

required to render medical diagnoses. To that end, Xerox was required by law to employ a

licensed dentist to render a diagnosis regarding medical necessity. Xerox was also required by

law to properly supervise its employees to make sure diagnoses were made only by licensed

dentists.

50.     Xerox knew or should have known that decisions regarding medical necessity can only

be rendered by Ii.censed personnel. Texas Occupations Code section 25 I .003 defines the practice

of dentistry to include a diagnosis of the human mouth and/or teeth; section 256.001 states that a

person may not practice dentistry without a license; section 264.151 makes it a third-degree

fe lony to practice dentistry without a license.

SI.     Xerox's actions proximately caused intervenor' s injury. Intervenor's injuries were

caused-in-fact by Xerox's actions, and they were foreseeable. Because Xerox's prior

authorization was a necessary prerequisite to providing services, Intervenor relied entirely on

Xerox 's determinations regarding medical necessity; thus, Xerox 's actions were the direct factua l

cause of Intervenor's injuries. Xerox's actions were foreseeable in that any person of ordinary

intelligence should have anticipated that paying Intervenor for services that have not properly

been determined to be medically necessity would precipitate a demand for repayment, and/or

wou ld require Jntervenor to independently do Xerox's job after the fact by proving that payment

was proper because those services were medically necessary and were reimbursable under Texas

Medicaid law.

52.     Intervenor suffered and continues to suffer significant damage. Intervenor suffered

reliance damages by investing the cost of services for each Medicaid patient that Xerox

approved. Intervenor has engaged legal counsel to defend itself from the State' s charges, and



Plea in Jntervention
Page 17 of25
those legal expenses continue today. Intervenor suffered and continues to suffer significant

damage to its reputation, business, referral base, earnings and earning power. Intervenor has

suffered inconvenience and loss of enjoyment of life in that he has had to dedicate significant

mental and personal capital to doing Xerox's job. Intervenor has suffered exemplary damages

because Xerox's conduct was grossly negligent, outrageous and malicious, and such conduct

should be penalized so that it is deterred in the future. Intervenor seeks recovery of actual and

exemplary damages, interest, court costs, and attorney fees.

                                           Negligence

53.     Intervenor re-alleges and incorporates the above facts and allegations as if fully set out

herein. Xerox's actions constitute negligence and gross negligence. Xerox was required to render

medical diagnoses. To that end, Xerox had a duty to employ a licensed dentist to render a

diagnosis supporting or denying medical necessity. Xerox had a duty to assure that the personnel

had appropriate education, training and experience to render such a finding. Xerox had a duty to

review the supporting prior authorization documentation (such as x-rays and photos) to

determine whether the requested services were medically necessary.

54.     Xerox's actions breached the standard of care because Xerox: fai led to provide prior

authorization staff that were properly licensed, qualified and experienced dental professionals;

violated the law, specifically the Dental Practice Act, by permitting non-dentists to make

determinations of medical necessity, and; issued medical opinions (prior authorizations) without

conducting a reasonable and prudent examination of evidence.

55.     Xerox's actions proximately caused intervenor's injury. Intervenor' s injuries were

caused-in-fact by Xerox's actions, and they were foreseeable. Because Xerox's prior

authorization was a necessary prerequisite to providing services, Intervenor relied entirely on



Plea in lntervention
Page 18 of25
Xerox's determinations regarding medical necessity; thus, Xerox's actions were the direct factual

cause of Intervenor's injuries. Xerox's actions were foreseeab le in that any person of ordinary

intelligence should have anticipated that paying intervenor for services that have not properly

been determined to be medically necessity would precipitate a demand for repayment, and/or

would require fntervenor to independently do Xerox's job after the fact.

56.    Intervenor suffered and continues to suffer significant damage to its reputation, business,

referral base, earnings and earning power. Intervenor has engaged legal counsel to defend itself

from the State's charges, and those legal expenses continue today. Jrma Cantu-Thompson has

suffered inconvenience and loss of enjoyment of life in that she has had to dedicate significant

mental and personal capital to doing Xerox's job. Intervenor has suffered exemplary damages

because Xerox's conduct is grossly negligent, outrageous and malicious, and such conduct

should be penalized so that it is deterred in the future. lntervenor seeks recovery of actual and

exemplary damages, interest, court costs, and attorney fees.

                                  Negligent Misrepresentation

57.     Intervenor re-alleges and incorporates the above facts and allegations as if fully set out

herein. Xerox's actions constitute negligent misrepresentation. Xerox's actions constitute

misrepresentations to Intervenor in numerous ways. Because, inter alia, prior authorization

approval was a prerequisite to furnishing services, these representations guided and controlled

intervenor's responses. Intervenor justifiably relied on these representations.    Further, Xerox

represented that its prior authorization approval s were dispositive of medical necessity;

Intervenor expected that, once approved, no further inquiry into the medical necessity of the

services would be required. Further, Xerox represented that its subsequent payments to

Intervenor (after the serv ices had actually been delivered) were made because services had been,



Plea in Intervention
Page 19 of25
in fact, properly approved as medically necessary.

58.       Xerox did not exercise reasonable care or competence in making its determinations and

representations. Xerox knew or should have known that its representations were false.

59.       Because prior authorization was a prerequisite to furnishing services, and because Xerox

was the entity charged with discharging prior authorization duties, Intervenor reasonably,

substantially, foreseeably, and justifiably relied on Xerox's representations.

60.       Intervenor suffered and continues to suffer significant damage. Intervenor suffered

rel iance damages by investing time, labor, equipment, and orthodontic appliances in each

Medicaid patient that Xerox approved. Cntervenor has engaged legal counsel to defend itself from

the State's charges, and those legal expenses continue today. Intervenor has been required to do

Xerox's job after the fact. Intervenor has incurred benefit of the. bargain damages, out-of-pocket

damages, lost profits, loss of credit, and loss of goodwill. All of these damages were directly

and/or proximately cause by Xerox's negligent misrepresentations. Intervenor seeks recovery of

actual and exemplary damages, interest, court costs, and attorney fees.

                       Gross Negligence I Misapplication of Fiduciary Property

61.       Intervenor re-alleges and incorporates the above facts and allegations as if fully set out

herein. Plaintiffs plead Xerox committed gross negligence and/or the misapplication of fiduciary

property which would entitle Intervenors to unlimited punitive damages.

B. Intervenors' Claims Against The State of Texas

                                   Waiver of Sovereign Immunity

62.       Intervenor re-alleges and incorporates the above facts and allegations as if fully set out

herein.     For a number of reasons, the State has waived sovereign immunity for claims by

Intervenor, including the facts that the State brought, threatened and/or has taken civil and/or



Plea in Intervention
Page 20 of25
administrative action against Intervenors, and because the State has filed suit against Xerox.

                                   Conspiracy/Joint Enterprise

63.     Intervenor re-alleges and incorporates the above facts and allegations as if fully set out

herein. Jn the alternative, former Deputy Inspector General Jack Stick has stated publicly that

acts and omissions of Xerox were so egregious as to be outside the course o f scope of Xerox's

agency relationship with the State. Assuming same to be true, then the State conspired with

Xerox to breach the contract or allow the breach to continue, conspired to withhold funds from

Intervenor but not Xerox, and conspired to falsely accuse Intervenor of fraud/crime.

64.     The State conspired with Xerox to allow Xerox to violate its various contractual duties.

The State permitted Xerox to process as many prior authorizations as possible without the

required clinical dental review and without using medically knowledgeable personnel. The State

conspired with Xerox to allow Xerox to violate State and Federal law. The State and Xerox

created a scheme to rubber stamp and/or allow no legitimate review of prior authorizations

submitted by tbe dentists . The conspiracy was committed with the intent to shift blame from the

State and its agent, improperly blame the rnrervenors, and enrich the State and Xerox. By

recouping money fro m providers that were not actually to blame, the State and Xerox hoped to

limit their own tiabi lity in the event of a Federal clawback action, and/or respond to unflattering

news reports of Texas' payments for Medicaid braces. This agreement and ensuing acts of the

party to blame the dentist providers for their own improper acts and omissions is a proximate

cause of the inj ury to lntervenors.

                            Not Liable for Illegal Acts of Third Party

65.     Intervenor re-alleges and incorporates the above facts and allegations as if fully set out

herein. As alleged by the State in Section V lH paragraph 46 of the State's petition, Xerox has



Plea in Intervention
Page 21 of25
committed or is about to commit unlawful acts. The illegal acts of Xerox in fa iling to provide

proper prior authorization review in rubber stamping the doctors prior authorization requests is

not the fault of the doctors. The doctors are not responsible for or liable to the State for the

illegal acts of a third party for which the doctors had no control; the State should not withhold

money from the lntervenors because of the illegal acts of Xerox complained about by the State.

                                       Breach of Contract

66.     Intervenor re-alleges and incorporates lhe above facts and allegations as if fully set out

herein. 1ntervenors are a direct or third party beneficiary of the contract with Xerox and the State

of Texas. The State of Texas has breached terms of the contract by failing to supervise Xerox

and/or reviewing the work product of Xerox. This breach by State, which allowed non-

performance by Xerox, has created the pretext by which the State affirmatively sued [ntervenors

for repayment. To the extent that the State has withheld money and/or made claims for damages

against Intervenors based on the contracts in question, the State has waived immunity and is

liable up to those amounts plead.

                                           Conversion

67.     Intervenor re-alleges and incorporates the above facts and allegations as if fully set out

herein. State and Federal law required [ntervenor to request prior authorization for orthodontic

services. Those prior authorization requests were approved by Xerox, which required lntervenors

to provide the services. The State has unilaterally made a decision to that, based on the acts and

om issions of Xerox, the Intervenor should not have been paid; the State then placed Intervenor

on a payment hold. To the extent that Intervenor has provided services for which Intervenor

should be paid, and money which has been earmarked by the State for that payment but withheld,

tbe State has converted the funds. In addition, lhe States' acts/omissions are a violation of the



Plea in Intervention
Page 22 of25
Texas Constitution Section 9 in that the acts/om issions constitute a seizure of money held under

the pretext of a payment hold.

                                            VI. Damages

68.     Intervenors have suffered and are entitled to recover damages including, but not limited

to loss of use of funds sequestered by the State, actual damages, damage to reputation, damage to

business, damage to earnings and earning power, inconvenience, loss of enjoyment of life, fees

and expenses, interest, punitive/exemplary damages, and attorney fees.

                                           VII. Conclusion

69.     Xerox's actions have harmed Intervenor because Xerox committed fraud, negligent

hiring, negligence, and gross negligence. Xerox's actions have subj ected Intervenor to

unnecessary civil and adm inistrative legal action, and that, in turn has caused additional injury.

Xerox's actions have required Intervenor to perform Xerox's j ob after-the-fact, by proving to the

State that the orthodontic services rendered were medically necessary and appropriate for

reimbursement. The State's actions have hann ed Intervenor because the state's conspiracy to

improperly blame the dentists has resulted in meritless legal claims against the lntervenors and

conversion of the Intervenor's property.

                                        VIII. Jury Demand

70.     Intervenors respectfully request a trial by jury.

                                    IX. Request for Disclosure

71.     Under Texas Rule of Civil Procedure L94, Intervenor requests that Plaintiff the State

disclose, within 50 days of the service of this request, the information or material described in

Rule 194.2.




Plea in Intervention
Page 23 of25
                                           X.Prayer

72 .   Wherefore, premises considered, Intervenors Irma Cantu-Thompson, DDS, PC and Inna

Cantu-Thompson pray that upon final hearing of the cause, judgment be entered jointly and

severally against the Plaintiff the State of Texas and Defendant Xerox State Healthcare, LLC for

damages, together with pre-judgment and post judgment interest at the legal rate, costs of court,

and other such relief to which the lntervenors may be entitled.




                                             RIGGS, ALESHlRE & RAY, P.C.
                                             700 Lavaca, Suite 920
                                             Austin, Texas 78701
                                             (512) 457-9806 (Telephone)
                                             (512) 457-9866 (Fax)
                                             jray@r-alaw.com


                                                Isl Hart Green w/ permission by J Ray
                                             E. Hart Green
                                             Texas Bar No. 08349290
                                             Mitchell A. Toups
                                             Texas Bar No. 20151600
                                             WELLER, GREEN, TOUPS & TERRELL, L.L.P.
                                             Post Office Box 350
                                             Beaumont, Texas 77704-0350
                                             (409) 838-0101 (Telephone)
                                             (409) 832-8577 (Fax)
                                             hartgr@wgttlaw.com
                                             matoups@wgttJaw.com
                                             ATTORNEYSFORINTERVENORS
                                             IRMA CANTU-THOMPSON, DDS, PC AND
                                             IRMA CANTU-THOMPSON




Plea in Intervention
Page 24 of25
                               CERTIFICATE OF SERVICE

        l hereby certify that a true and correct copy of the foregoin g Plea in Intervention was

served via e-mail and certified mail, return receipt requested on this 15th day of May, 2014 on

the following:

Eric J.R. Nicho ls
Beck Redden
5 15 Congress Avenue, Suite 1750
Austin, Texas, 78701
ENTCHOLS@beckredden.com
Attorney for Xerox Defendants

Raymond Winter
Chief:, Civi l Medicaid Fraud Division
Assistant Attorney Genernl
Office of the Attomey General
P.O. Box 12548
Austin, Texas 78711-2548
raymond. w inter@texasattorneygeneral.gov
Attorney for the Plaintiff State of Texas




Plea in Intervention
Page 25 of25
                                CAUSE NO. D-1-GV-14-000581

MAN & CFN ORTHO, PLLC, NAVARRO     §                        IN THE DISTRICT COURT
ORTRODONTIX OF IRVING, PC, NAVARRO§
ORTHODONTIX OF FT. WORTH, PLLC,    §
NAVARRO ORTHODONTIX OF MCALLEN, §
PLLC, NAVARRO ORTHODONTIX OF       §
EDINBURG, PLLC, NAVARRO            §
ORTBODONTIX, PC, AND DR. CARLOS F. §
NAVARRO                            §
                INTERVENORS,       §
                                                     §
vs.                                                  §
                                                     §
THE STATE OF T EXAS,                                 §
                PLAINTIFF,                           §
                                                     §      53rd JUDICIAL DISTRICT
VS.                                                  §
                                                     §
XEROX CORPORATION; XEROX                             §
STATE HEALTHCARE, LLC; ACS                           §
STATE HEALTHCARE, LLC, A XEROX                       §
CORPORATION                                          §
              DEFENDANTS.                            §      TRAVIS COUNTY, TEXAS

                                  PLEA IN INTERVENTION

TO THE HONORABLE JUDGE OF SAID COURT:

        NOW COMES, MAN & CFN Ortho, PLLC, Navarro Orthodontix of Irving, PC,

Navarro Orthodontix of Ft. Worth, PLLC, Navarro Orthodontix of McAllen, PLLC, Navarro

Orthdontix of Edinburg, PLLC, Navarro Orthodontix, PC and Dr. Carlos F. Navarro, hereinafter

Intervenors, and file this Plea in Intervention, and in support hereof, would respectfully show the

Court the following:

                                      I. Parties and Service

I.      Plaintiff, State of Texas, has appeared in this action and may be served with a notice of

this Plea by sending a copy to its attorney, the Attorney General of Texas, Greg Abbott, at P. 0.

Box 12548, Austin, Texas 78711 -2548.


Plea in Intervention
Page I of26
2.         Defendant Xerox Corporation is a corporation organized under the laws of New York has

agreed to accept service with process upon its Attorney in this suit. Defendant Xerox State

Health Care, LLC, f/k/a ACS State Healthcare, LLC (misnamed by the State of Texas as ACS

State Healthcare, LLC, a Xerox Corporation is a wholly-owned subsidiary of Xerox Corporation

organized under the laws of the State of Delaware with Texas offices at 2828 N. Haskell Ave.,

Dallas, Texas 75204, and has agreed to accept service with process upon its Attorney in this suit.

Defendant Xerox Corporation acquired Defendant ACS in 2010. On information and belie(,

ACS State Healthcare, LLC, changed its name to Xerox State Healthcare, LLC, on April l, 2012.

Defendants are referred to hereinafter as "Xerox Defendants."

3.         MAN & CFN Ortho, PLLC, Navarro Orthodontix of Irving, PC, Navarro Orthodontix of

Ft. Worth, PLLC, Navarro Orthodontix of McAllen, PLLC, Navarro Orthdontix of Edinburg,

PLLC, Navarro Orthodontix, PC and Dr. Carlos F. Navarro, (hereinafter Navarro) are approved

Medicaid providers, and can be served through the undersigned counsel.

4.        Dr. Carlos F. Navarro 1 is a licensed Texas dentist, approved Medicaid provider, and the

owner of Navarro. Dr Navarro can be served through his undersigned counsel.

                                             II. Jurisdiction and Venue

5.         This Court has subject-matter jurisdiction in that the amounts sought by Intervenors from

all parties (both Plaintiff and Defendants) are in excess of the minimal jurisdiction limits of this

court. Intervenors affirmatively plead that this suit is not governed by the expedited-actions

process in TEXAS RULE OF CIVIL PROCEDURE 169 because intervenors seek monetary relief over

$100,000.

6.         This Court has jurisdiction over all parties in this petition because:

           a) The State has waived sovereign immunity and is subject to Intervenors' claims;

1
    For the sake of simplicity, the Intervenors will be collectively referred to as "Navarro" unless expressly noted.

Plea in Intervention
Page 2 of26
        b) This Court has jurisdiction over Xerox Defendants because each Defendant does

            business in the State of Texas and comm itted the unlawful acts a lleged in thi s petition

            in whole or part in Texas.

7.      Venue is proper in Travis County under TRCP §15.020 because this suit involves a

" major transaction"; Venue is permissive under TRCP § 15.035(a) because Int ervenor asserts

claims for breach of contract. Venue is proper pursuant to TRCP § 15.02 because all or a

substantial part of the events or omissions giving rise to the claim occurred in Travis County.

Many of the unlawful acts committed by the State and Xerox Defendants were committed in

Travis County, including the making of false statements and misrepresentations of material fact.

                               ID. Intervcnors' Interest in the Suit

8.      Intervenors MAN & CFN Ortho, PLLC, Navarro Orthodontix of Irving, PC, Navarro

Orthodontix of Ft. Worth, PLLC, Navarro Orthodo ntix of McAllen, PLLC, Navarro Orthdontix

of Edinburg, PLLC, Navarro Orthodontix, PC and Dr. Carlos F. Navarro have a judicial interest

in the matters and controversy in this litigation. The relationship between lntervenors, the State

as the Plaintiff and the Xerox Defendants is a tripartite arrangement necessitating that, in the

interest of judicial economy and j ustice, all claims be bound and subsumed into one cause of

action. Upon information and belief, Intervenors were initially sued by the State in a qui tam

action wherein the State alleged that lntervenors defrauded the State. The State has elected to

pursue its remed ies against the Intervenors in an administrative hearing. Now, the State has sued

Xerox in State Court on the same facts, alleging that Xerox has committed fraud against the

State. lntervenors have claims against both the State and Xerox. It is assumed that Xerox will

have claims against the State, and perhaps allege claims against the Intervenors. All of the

different parties' c laims are inextricably intertwined, as they relate to Intervenors' submission of



Plea in Intervention
Page 3 of26
prior authorization requests to Xerox, the handling of those claims by the Xerox Defendants, the

State's handling and oversight of its agent Xerox in Xerox's performance of its contractual and

legal duties, and State's subsequent legal action against the Intervenors for services approved by

Xerox.

                                                IV.Facts

Wbat is Prior Authorization?

9.       Texas Medicaid requires that orthodontic services be independently and objectively

scrutinized before the State consents to treatment and payment. Prior authorization is the

mechanism the State uses to determine the medical necessity of non-emergency orthodontic

items/services prior to delivery of those items/services. Pursuant to Texas Health and Human

Services Commission (hereinafter "HHSC") rules, Texas Medicaid greatly restricts when it will

pay for orthodontic services:

         Orthodontic services for cosmetic reasons only are not a covered Medicaid
         service. Orthodontic services must be prior authorized and are limited to
         treatment of severe handicapping malocclusion and other related conditions as
         described and measured by the procedures and standards published in the
                  2
         [TMPPM ] .

25 TEX. ADMIN. CODE §33.71 (emphasis added). Prior authorization is a statement of assurance

to the orthodontic provider that, absent an intervening d isqualifying factor, lhe delivery of the

requested orthodont ic service has been deemed by Xerox to be medically necessary, and

therefore approved by the State.

I 0.     The prior authorization process is straightforward. Texas Medicaid requires that a dental

provider send documentation (x-rays, cephalographs, photos, etc.) regarding the patient's

orthodontic condition to Xerox for rev iew. In addition, the orthodontic provider submits his


2
 "TMPPM" is the Texas Medicaid Provider Procedures Manual, which is issued yearly by the HHSC and provides
valuable guidance to Medicaid providers.

Plea in Intervention
Page 4 of26
professional opinion of the patient on a Handicapping Labio-lingual Deviation index (HLD)

score sheet. Xerox knew providers relied entire ly on the prior authorization process because

approval was a mandatory prerequisite to providing orthodontic services and being paid. Once

Xerox issued its prior authorization decision, the decision was not appealable by the provider.

I l.   The HLD scoring system combines a number of treatable orthodontic conditions into an

index. HLD score sheets use a mix of objective and subjective conditions to determine whether a

Medicaid patient qualifies for orthodontic serv ices. The fact that the HLD score sheet requires

both objective and subjective findings highlights the importance of Xerox performing a thorough

prior authorization review.

The History of Orthodontic Prior Authorization.

12.    The process for reviewing and approving orthodontic prior authorization requests pre-

dates the defendanl Xerox's handling of Medicaid claims processing. The National Heritage

Lnsurance Corporation (NHIC) was responsible for reviewing prior authorization requests before

Xerox assumed the contract in January 2004. Starting January 1, 2004, Xerox acted as an

independent contractor, and was a contracted agent of the State, under the contract with HHSC.

Xerox was responsible for reviewing each orthodontic service request, and Xerox was further

charged with the responsibility to grant or deny each prior authorization request per the program

requirements. The result was that Xerox had the final say in determining the medical necessity of

each request fo r orthodontic services.

13.     Prior to assuming the NHIC contract, and for a period of time after assuming the contract

from N HlC, Xerox received training from NHIC personnel regarding the proper method for

receiving and processing orthodontic prior authorization requests. NHlC personnel explained

how and why the review of each prior authorization subm ission was important, and walked



Plea in Intervention
Page 5 of26
Xerox through the process. Despite its training from NHIC, Xerox had no intention of following

the prior authorization system that had been in place for years, nor did Xerox intend to otherwise

meet the prior authorization requirements set out in its contract, the TMPPM and required by

state law.

Xerox rejects its contractual responsibilities.

14.     When Xerox took over the contract m 2004, it immediately abandoned the prior

authorization review process that had been setup by NHIC. Xerox never intended to fulfill its

orthodontic prior authorization responsibilities to HHSC. From 2004 to 2011, Xerox continually

misrepresented that it was acting in compliance with its contractual duties.

15.     It is now known that Xerox failed to adequately staff their prior authorization division

with knowledgeable medical professionals. Xerox employed only one licensed dentist from 2004

through 2011, which was far short of the manpower necessary to handle the review of tens of

thousands of orthodontic prior authorization requests every year. Xerox could not reasonably

have expected to handle such a workload by employing only one dentist.

Xerox potentially commits thousands of violations.

16.     It is believed Xerox allowed "dental specialists"-unlicensed, unqualified individuals-

to render prior authorization opinions regarding the medical necessity of requested orthodontic

services. The "dental specialist" approvals were not reviewed or ratified by Xerox's licensed

dental director or another qualified dental professional. These actions not only violated Xerox's

contractual obligations, they may have also violated other Texas law such as the Dental Practice

Act. 3 It is believed these unlicensed Xerox "specialists" rendered tens of thousands of prior


3
  Texas Occupations Code §251.003 prevents unlicensed individuals from diagnosing conditions of the human teeth
and mouth. Section 256.001 states that a person may not practice dentistry without a license. Thus, state law requires
that opinions regarding medical necessity of orthodontic treatment must be made by licensed dentists. Section
264.151 prescribes penalties for certain violations of the Dental Practice Act.

Plea in Intervention
Page 6 of26
authorization approvals/medical opinions in violation of Texas law.

17.    Xerox was paid by the state for each prior authorization decision that was made. It is

believed that Xerox employed unlicensed "specialists," rather than licensed Texas dentists, as a

profit generating measure.

18.     From January 2005 through February 20 12, Intervenor subm itted prior authorization

requests, as required, to Xerox for a determ ination of medical necessity. Unbeknownst to

Intervenor, Xerox's dental specialists-not the dental director-approved almost all of

Intervenor's requests. Xerox's prior authorization approvals were promises that:

        a) the requested orthodontic services were medically necessary, and/or

        b) the approval had been issued by a licensed dentist, and/or

        c) the approval was an actual and legitimate dental diagnosis, and/or

        d) the requested orthodontic services were allowable under Texas law and as permitted

by Medicaid policy, the TMPPM, and HHSC rules, and/or

        e) a proper, thorough and legal review had been made, and/or

        f) future orthodontic services would be properly reimburseable to lntervenors, absent

some intervening disqualification (such as the patient's ineligibility).

19.     Because Xerox was charged w ith dete1111ining medical necessity, and because prior

authorizatjon approval was a mandatory prerequisite to furnishing services, the promjses were

material. lntervenors expected performance o f these promises. Intervenors rel ied on Xerox.

Further, Xerox promised that its subsequent payments to lntervenors (after the services had

actually been delivered) were made because the services had been, in fact, properly approved as

medically necessary. Each prior authorization approval represents a separate violation of the Jaw

if Xerox's approval was issued   illegally and/or in violation of its contractual obligations.



Plea in Intervention
Page 7 of26
Xerox actively concealed its potentially illegal activity.

20.    Xerox withheld the truth regarding its prior authorization program. In an attempt to

publicly appear consistent with NHIC's prior authorization process, Xerox continued to require

that dental providers (such as Intervenor) submit all supporting documentation for each HLD

score sheet. lt is now believed that, incredibly. Xerox did nothing with that documentation. other

than assure that it had been subm itted by the provider. It is believed that Xerox's specialists were

instructed to forward to its dental director on ly those requests that had scored below the

threshold for orthodontic services (i.e. below 26 points on the HLD score sheet), or had some

provider justification attached. As a result, only I0% of the orthodontic prior authorization

requests were actually forwarded to Xerox 's one licensed dentist.           Xerox's actions were

calculated to make Xerox appear compliant with its contract and HHSC policies, while Xerox

knew that its actions were entirely incons istent with the Letter and spirit of its o bligations.

Effectively, then, Xerox's actions not only damaged the Medicaid program directly by approving

services without detem1 ining their medical necessity, but Xerox's deception also exacerbated the

problem by failing to give providers guidance regarding the proper standard for medical

necessity, thus causing these providers substantia l damages.

21 .    For the past ten years, Xerox has continued to publicly represent to the world that it was

fulfilling its contractual and legal responsibilities. Based on Xerox's representations that it was

fulfi lling its duties to the State, Xerox had its contract with HH SC repeatedly renewed from 2004

through the present. Each year that Xerox had its contract renewed, it represented that it would

fu lfi ll its contractual obligations and abide by Texas law requiring that decisions about medical

necessity be rendered only by licensed dentists. Xerox made those representations knowing that

it had not done so in the past, and had no intent ion of changing its procedures to do so in the



Plea in Intervention
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future.

The Frew decision magnifies Xerox's acts.

22.       In September 2007, after fifteen years of litigation on the subject, Texas was ordered to

implement a corrective action plan that increased the Medicaid reimbursement rates to all dental

providers. That plan was required pursuant to the Frew case4 , which was a 1993 class-action

lawsuit against the HHSC alleging that Texas' Medicaid reimbursement rates were so low that

they prevented indigent children from receiving timely, comprehensive health care.

23.       In response to Frew 's corrective action plan, the 2007 Texas Legislature allocated $707

million ($1.8 billion in state and federal funds combined) to increase medical and dental

reimbursement rates. The increase in dental reimbursement rates was intended to entice dentists

to become Medicaid providers. It worked. The state raised payment rates for dental services, and,

as a result, the number of dentists participating in Medicaid increased from 45.4% in 2007 to

63 .4% in 2010. As expected indeed, as intended spending on Texas's dental services increased

dramatically.

24.       Although the number of prior approval requests increased by 240% between 2007 and

20 l 0, Xerox continued to employ only one dentist. That dentist was neither tasked with nor

responsible for supervising the clerical specialists that were issuing the approvals.

25.       By 2010, orthodontic spending under Texas' Medicaid program had skyrocketed. Xerox

was the sole entity responsible for overseeing this increase, because it was the sole gatekeeper

for the approval and payment of orthodontic services. Although the Texas Legislature had



4
  Frew v. Gilbert, 109 F. Supp. 2d 579 (E.D. Tex. 2000) vacated sub nom. Frazar v. Gilbert, 300 F.3d 530 (5th Cir.
2002) rev'd sub nom. Frew ex rel. Frew v. Hawkins, 540 U.S. 431, 124 S. Ct. 899, 157 L. Ed. 2d 855 (2004) and
a.fl'd in part, appeal dismissed in part sub nom. Frazar v. Hawkins, 376 F.3d 444 (5th Cir. 2004); Frew v. Hawkins,
401 F. Supp. 2d 619 (E.D. Tex. 2005) ajj'd sub nom. Frazar v. Ladd, 457 F.3d 432 (Slh Cir. 2006); Hawkins v.
Frei!', 549 U.S. 1118. 127 S. Ct. 1039, 166 L. Ed. 2d 714 (2007).


Plea in Intervention
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increased funding to attract dentists into the Medicaid program, all of the budgeted funds were

required to be spent only on medically necessary services.

The Office of Inspector General seeks recovery from Medicaid providers.

26.    In early 201 I, a series of news stories began highlighting the large amount of money

being spent on orthodontics in Texas. In July 2011, the Federal government notified Texas of its

intent to audit whether Texas' prior authorization process was ensuring that only medically

necessary or1hodontic cases were being approved and paid. With the prospect of a federal

clawback action looming against Texas because of Xerox's prior authorization failures, the

Texas Office of Inspector General (hereinafter "State") took a drastic step. Beginning in 2011,

the State generated a list of the top Medicaid 011hodontic billers and placed them on " payment

hold." Intervenor was one of those providers.

27.     Given lntervenors' proxim ity to some of the state's poorest ch ildren, and the mandates of

the Frew decision, Intervenor served a large Medicaid patient population. Because it served a

large Medicaid population, it submitted a large number of prior authorization requests to Xerox

from 2004 through 20 11 .

28.     lntervenors did not know that Xerox was failing to perfonn a true and accurate review for

medical necessity. lntervenors rel ied on Xerox 's prior authorization approvals to confinn that

dentists' analysis was proper and consistent with Medicaid standards and requirements.

29.     Again unbeknownst to lntervenors, State audits in 2008 and 2012 concluded that most, if

not almost all, of the prior authorization requests for patients with HLD scores of 26 or greater

(indicating medical necessity) had not been actually "evaluated" at all by Xerox. These State

audits made the Federal government's pending audit especially dangerous to Texas, because the

2008 and 2012 audits were admissions that Xerox had been approving and paying claims that



Plea in Intervention
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may not have met the federal standards for prior authorization. Thus the State, through the

Attorney General, concluded that a true finding of medical necessity had in reality not occurred.

The Attorney General claimed that billing for services that are not necessary is fraud, despite

Xerox's prior authorization approvals.

30.     Lt is now believed that rather than prosecute Xerox for its failure lo properly evaluate

dentists' prior authorization requests, the State and the Texas Attorney General protected Xerox.

This protection included the State failing to allow TMHP to hire additional medically licensed

staff, and in 2008-2009 telling TMHP to continue its prior authorization practices. Although the

Attorney General took immediate action against the providers, the Attorney General refused to

hold Xerox accountable for its orthodontic "approvaJs," its repeated contractual failures, or its

violation of State law. Instead, the Attorney General made fraud allegations against each of the

top 25 dental providers, including Intervenor, which has caused more injury and damages to

lntervenors. Stated d ifferently, Xerox issued its approvals through a process that gutted the

State's belief in the accuracy o f Xerox's decision, and the Texas Attorney General punished the

providers instead of Xerox.

31.     Because    the   acts/omissions of Xerox so undermined         the   process, the State

eventuallyinstituted a " payment hold" against Intervenor. A payment hold temporarily freezes

future Medicaid payments to a provider, despite the provider's ongoing participation in the

Medicaid program. The payment hold against intervenor was issued pursuant to wbat the State

called a "credible allegation of fraud " regarding Intervenor's orthodontic prior authorization

requests. The State placed a 100% payment hold against Intervenor's orthodontic billings.

32.     At the time the Attorney General began prosecuting Intervenor and similarly situated

Medicaid providers, it knew Xerox, not Intervenor, had the sole authority and responsibility to



Plea in Intervention
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authorize orthodontic services and paym ents. The Attorney General knew that the State's audits

of Xerox in 2008 and 2012 had concluded that Xerox was violating its contract with the State,

violating its own State-approved policies and procedures, and violating State law. Nevertheless,

the Attorney General continued to only prosecute dental providers like the Intervenor~ the

Attorney General refused to hold Xerox responsible. [n fact, in one shameless and brazen

demonstration of State' s unwavering protection of Xerox, the Deputy Director of Texas' Office

of the Inspector General testified in a hearing that Xerox's acts and omissions were so egregious

they were outside the course and scope of Xerox's agency with State.5 Upon information and

belief, the State and the Attorney General protected Xerox for over 6 years fearing that revealing

the State's culpability would subject the State to a federal clawback for hundreds of millions of

dollars. Instead, the State and the Attorney General pointed at the dental providers.

33.      Ultimately, the evidence of Xerox's failures, and the State's refusal to correct Xerox for

over 6 years, became too much to hide. Three months after some providers filed suit against

Xerox, and following a series of news stories questioning why Xerox had not suffered for its

failures, the Attorney General reversed course. On May 9, 2014, the State, through the Texas

Attorney General, filed this lawsuit against Xerox for fraud, basically mirroring the suit filed

approximately 100 days earlier by similarly situated providers. The State's claims in this fraud

lawsuit include admissions that the State knew as early as 2006 that Xerox's actions were

improper.

34.     As a result of the payment hold, Intervenor was required to make significant financial

concessions and changes to its business. Intervenor a lso engaged legal counsel to defend itself



s Incredibly, that testimony came in an administrative proceeding in which the State was seeking $8 million from a
dental provider for following Xerox's instructions to provide braces to the provider's patientS. The idea that the
State could not hold Xerox responsible for its contractual obligations because Xerox had done such a poor job that it
was acting outside of its contract is a novel and imaginative reason not to prosecute Xerox.

Plea in Intervention
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from the State's claims, at a significant expense that continues today.

35.    The State's allegations against [ntervenor are rooted in two assumptions. First, the State

assumes Intervenor's prior authorization requests were not properly vetted by Xerox; that is,

Xerox approved Intervenor's requests without knowing whether approval was actually proper.

Because Xerox is not a party to Intervenor's administrative case, lntervenor is prevented from

determining whether Xerox did, in fact, perform a proper review of Intervenor's prior

authorization requests. By intervening in this lawsuit, Intervenor seeks to address that question,

and finally determine whether Xerox reviewed Intervenor's requests as required by its contract

and the law.

36.     Regarding the State's second assumption, the State alleges some of Intervenor's requests

were approved when, in fact, they should have been denied. intervenor denied that assertion in

the administrative case, and Intervenor continues to deny that claim here. All services provided

to Intervenor's patients were actually medically necessary, regard less o f what Xerox decided and

in any event under Medicaid guidelines once the authorization was approved, Intervenor was

required to provide the services.

37.     The State continues to aggressively fight any allegation or affirmative defense that could

result in Xerox being held accountable for its part in these HLD scoring cases, despite the State's

contentions in the District Court case to the contrary. Damages continue to accrue.

                                       V. Causes of Action

A. Intervenors' Claims Against Xerox

      Common Law Fraud (Fraudulent Misrepresentation and Fraudulent foducement)

38.     Intervenor re-alleges and incorporates the above facts and allegations as if fully set out

herein. Xerox 's prior authorization approvals were fa lse representations made to Intervenor. It is



Plea in Intervention
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believed Xerox knowingly issued these prior authorizations to Intervenor because Xerox knew

that it was approving requests without a proper medical review, and/or because it approved the

prior authorization requests without any knowledge of their truth . It is believed Xerox intended

for Intervenor to rely on the approvals as a prerequisite for providing the requested services.

Approval was material because it was a mandatory prerequisite for payment. Intervenor actually

and justifiably relied on Xerox's fraudulent approvals.

39.     Xerox's approvals induced Intervenor to continue to grade subsequent HLD requests in

the same or simi lar manner, and led Intervenor to believe that their requests were consistent with

Medicaid standards and requirements.

40.     Xerox's fraudulent approvals caused injury to Intervenor. As a resu lt of Xerox's actions,

intervenor submitted requests for payment and Xerox actually paid for those services, Lntervenor

was placed on payment hold, Intervenor is forced to defend itself in an administrative payment

hold hearing, and [ntervenor is facing administrative claims by HHSC for repayment (including

claims for treble damages and attorney fees). Intervenor's reputation and business have suffered

severe injury. Intervenor seeks recovery of actual and exemplary damages, interest, court costs,

and attorney fees.

                         Breach of the Xerox-State of Texas Contract

41.     Intervenor re-alleges and incorporates the above facts and allegations as if fully set out

herein. In the alternative, Xerox's actions constitute a breach of Xerox's contract with the State

for the benefit of Intervenor. Xerox's contract with the state required that it conduct a proper,

thorough and legal review of prior authorization requests for the purpose of determining medical

necessity. To that end, Xerox should have employed a licensed dentist.

42.     Xerox was an agent of the State of Texas engaged specifically for the purpose of



Plea in Intervention
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determining medical necessity. The third party beneficiaries of that Xerox-State of Texas

contract were Medicaid patients and Intervenor. The patients were entitled to receive orthodontic

services that were medically necessary. Intervenor was responsible for actually delivering the

orthodontic services that Xerox had deemed medicaJly necessary. Thus, Intervenor was a third

party beneficiary that relied on Xerox's approvals.

43.      Xerox breached its contract by, inter alia, fai ling to provide qualified staff; possibly

violating Texas law; permitting non-dentists to make determinations of medical necessity; and

issuing medical opinions without conducting a reasonable and prudent examination of evidence.

The breaches were material, and recurred across many different Medicaid patients and for many

years.

44.      Xerox's actions proximately caused Intervenor's injury. Intervenor's injuries were

caused-in-fact by Xerox's actions, and they were foreseeable. Because Xerox's prior

authorization was a necessary prerequisite to providing services, Intervenor relied entirely on

Xerox's determinations regarding medical necessity; thus, Xerox's actions were the direct factual

cause of Intervenor's injuries. Xerox's actions were foreseeable in that a person of ordinary

intelligence should have anticipated that issuing a decision without actually reviewing or

considering the evidence (x-rays, photos, models, etc.) would eviscerate the credibility and

reliability of the decision. Once the State assumed that Xerox's approvals were not trustworthy,

it was foreseeable that the State would demand repayment, and/or would require Intervenor to

independently do Xerox's job after the fact by proving that payment was proper because the

services were medically necessary and reimbursable under Texas Medicaid law.

45.      Intervenor suffered and continues to suffer significant damage. Intervenor seeks damages

that would have given the lntervenors the benefit of the bargain by putting them in as good a



Plea in Intervention
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position as they would have been in if the contract had been performed.          Intervenor seeks

reliance interest damages to restore the expend itures Intervenor made in reliance on Xerox's

contract with the state and the approvals that Xerox made under that contract. Intervenor also

seeks damages for its restitution interest to restore money sought by the Office of the Inspector

General from Intervenor. Such damages would put the Cntervenors in as good a position as it

would have been in if the contract had been properly fulfilled. In add ition, Intervenor seeks

liquidated damages as set out in the Xerox-State of Texas contract. Intervenor has engaged legal

counsel to defend itself from the State's charges, and those legal expenses cont inue today.

Intervenor has incurred benefit of the bargain damages, out-of-pocket damages, lost profits, lost

future profits, loss of credit, and loss of goodwill.    Intervenor seeks recovery of actual and

exemplary damages, interest, court costs, and attorney fees.

                          Breach of Contract (Promissory Estoppel)

46.     Intervenor re-alleges and incorporates the above facts and allegations as if fully set out

herein. In the alternative, Xerox's actions constitute promissory estoppel.

47.     Xerox's prior authorizations constitute promises to Intervenor in numerous ways.

Because prior authorization was a prerequisite to furnishing services, and because Xerox was the

entity charged with discharging prior authorization duties, Intervenor reasonably, substantially,

and foreseeably relied on Xerox's promises.

48.     Intervenor suffered and continues to suffer significant damage. Intervenor suffered

reliance damages by investing time, labor, equipment, and orthodontic appl iances in each

Medicaid patient that Xerox approved. Intervenor has engaged legal counsel to defend itself from

the State's charges, and those legal expenses continue today. Intervenor has been required to do

Xerox's job after the fact-namely, demonstrate tbat the services were medically necessary and



Plea in Intervention
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properly reimbursable under Texas Medicaid law. lntervenor has incurred benefit of the bargain

damages, out-of-pocket damages, lost profits, lost future profits, loss of credit, and loss of

goodwill. All of these damages were directly and/or proximately caused by Xerox' s promises.

Intervenor seeks recovery of actual and exemplary damages, interest, court costs, and attorney

fees.

                            Negligent Hiring/Negligent Supervision

49.     Intervenor re-alleges and incorporates the above facts and allegations as if fully set out

herein. Xerox's actions constitute negl igent hiring and/or negligent supervision. Xerox was

required to render medical diagnoses. To that end, Xerox was required by law to employ a

licensed dentist to render a diagnosis regarding medical necessity. Xerox was also required by

law to properly supervise its employees to make sure diagnoses were made only by licensed

dentists.

50.     Xerox knew or should have known that decisions regarding medical necessity can only

be rendered by licensed personnel. Texas Occupations Code section 25 1.003 defines the practice

of dentistry to include a diagnosis of the human mouth and/or teeth; section 256.001 states that a

person may not practice dentistry without a license; section 264.151 makes it a third-degree

felony to practice dentistry without a license.

51.     Xerox's actions proximately caused Intervenor's injury. Intervenor's injuries were

caused-in-fact by Xerox 's actions, and they were foreseeable. Because Xerox's prior

authorization was a necessary prerequisite to providing services, Intervenor relied entirely on

Xerox's determinations regarding medical necessity; thus, Xerox's actions were the direct factual

cause of Intervenor's injuries. Xerox's actions were foreseeable in that any person of ordinary

intelligence should have anticipated that paying Intervenor for services that have not properly



Plea in Intervention
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been determined to be medically necessity wou ld precipitate a demand for repayment, and/or

would require Intervenor to independently do Xerox's job after the fact by proving that payment

was proper because those services were medically necessary and were reimbursable under Texas

Medicaid Jaw.

52.     Intervenor suffered and continues to suffer significant damage. Intervenor suffered

reliance damages by investing the cost of services for each Medicaid patient that Xerox

approved. Intervenor has engaged legal counsel to defend itself from the State's charges, and

those legal expenses continue today. intervenor suffered and continues to suffer significant

damage to its reputation, business, referral base, earnings and earning power. Intervenor has

suffered inconvenience and loss of enjoyment of life in that he has had to dedicate significant

mental and personal capital to doing Xerox's job. intervenor has suffered exemplary damages

because Xerox's conduct was grossly negligent, outrageous and malicio us, and such conduct

should be penalized so that it is deterred in the future. Intervenor seeks recovery of actual and

exemplary damages, interest, court costs, and attorney fees.

                                           Negligence

53.     Intervenor re-alleges and incorporates the above facts and allegations as if fully set out

herein. Xerox's actions constitute negligence and gross negligence. Xerox was required to render

medical diagnoses. To that end, Xerox bad a duty to employ a licensed dentist to render a

diagnosis supporting or denying medical necessity. Xerox had a duty to assure that the personnel

had appropriate education, training and experience to render such a finding. Xerox had a duty to

review the supporting prior authorization documentation (such as x-rays and photos) to

determine whether the requested services were medically necessary.

54.     Xerox's actions breached the standard of care because Xerox: failed to provide prior



Plea in Intervention
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authorization staff that were properly licensed, qualified and experienced dental professionals;

violated the law, specifically the Dental Practice Act, by permitting non-dentists to make

determinations of medical necessity, and; issued medical opinions (prior authorizations) without

conducting a reasonable and prudent exam ination of evidence.

55.     Xerox' s actions proximately caused Intervenor's injury. lntervenor's injuries were

caused-in-fact by Xerox's actions, and they were foreseeable. Because Xerox's prior

authorization was a necessary prerequisite to providing services, Intervenor relied entirely on

Xerox's determinations regarding medical necessity; thus, Xerox's actions were the direct factual

cause of Intervenor's injuries. Xerox's actions were foreseeable in that any person of ordinary

intelligence should have anticipated that paying fntervenor for services that have not properly

been determined to be medically necessity would precipitate a demand for repayment, and/or

would require Intervenor to independently do Xerox's job after the fact.

56.     Intervenor suffered and continues to suffer significant damage to its reputation, business,

referral base, earnings and earning power. fntervenor has engaged legal counsel to defend itself

from the State's charges, and those legal expenses continue today. Dr. Navarro has suffered

inconvenience and loss of enjoyment of life in that he has had to dedicate significant mental and

personal capital to doing Xerox's job. Intervenor has suffered exemplary damages because

Xerox's conduct is grossly negligent, outrageous and malicious, and such conduct should be

penalized so that it is deterred in the future. Intervenor seeks recovery of actual and exemplary

damages, interest, court costs, and attorney fees.

                                  Negligent Misrepresentation

57.     Intervenor re-alleges and incorporates the above facts and allegations as if fully set out

herein. Xerox's actions constitute negligent misrepresentation. Xerox ' s actions constitute



Plea in Intervention
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misrepresentations to Intervenor in numerous ways. Because, inter alia, prior authorization

approval was a prerequisite to furnishing services, these representations guided and controlled

Intervenor's responses. intervenor justifiably relied on these representations. Further, Xerox

represented that its prior authorization approvals were dispositive of medical necessity;

Intervenor expected that, once approved, no further inquiry into the medical necessity of the

serv ices would be required. Further, Xerox represented that its subsequent payments to

Intervenor (after the services had actually been delivered) were made because services had been,

in fact, properly approved as medically necessary.

58.     Xerox did not exercise reasonable care or competence in making its determ inations and

representations. Xerox knew or should have known that its representations were fa lse.

59.     Because prior authorization was a prerequisite to furnis hing services, and because Xerox

was the entity charged with discharging prior authorization duties, Intervenor reasonably,

substantially, foreseeably, and justifiably rel ied on Xerox's representations.

60.     Intervenor suffered a nd continues to suffer signi ficant damage. fn tervenor suffered

reliance damages by investing time, labor, equipment, and orthodontic appliances in each

Medicaid patient that Xerox approved. Intervenor has engaged legal counsel to defend itself from

the State's charges, and those legal expenses continue today. Intervenor has been required to do

Xerox 's job after the fact. Intervenor has incurred benefit of the bargain damages, out-of-pocket

damages, lost profits, loss of credit, and loss of goodwill. All of these dam ages were directly

and/or proximately cause by Xerox's negligent misrepresentations. Intervenor seeks recovery of

actual and exemplary damages, interest, court costs, and attorney fees.

                       Gross Negligence I Misapplication of Fiduciary Property

61.     Intervenor re-alleges and incorporates the above facts and a11egations as if fully set out



Plea in Intervention
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herein. Plaintiffs plead Xerox committed gross negligence and/or the misapplication of fiduc iary

property which would entitle Intervenors to unlimited punitive damages.

B. Intervenors' Claims Against The State of Texas

                                  Waiver of Sovereign Immunity

62.       Intervenor re-alleges and incorporates the above facts and allegations as if fully set out

herein.    For a number of reasons, the State has waived sovereign immunity for claims by

Intervenor, including the facts that the State brought, threatened and/or has taken civil and/or

administrative action against lntervenors, and because the State has filed suit against Xerox.

                                    Conspiracy/Joint Enterprise

63.       Intervenor re-alleges and incorporates the above facts and allegations as if fully set out

herein . In the alternative, former Deputy Inspector General Jack Stick has stated publicly that

acts and omissions of Xerox were so egregious as to be outside the course of scope of Xerox's

agency relationship with the State. Assuming same to be true, then the State conspired with

Xerox to breach the contract or allow the breach to continue, conspired to withhold funds from

Intervenor but not Xerox, and conspired to fal sely accuse Intervenor of fraud/crime.

64.       The State conspired with Xerox to a llow Xerox to violate its various contractual duties.

The State perm itted Xerox to process as many prior authorizations as possible without the

required clinical dental review and without using medically knowledgeable personnel. The State

conspired with Xerox to allow Xerox to violate State and Federal law. The State and Xerox

created a scheme to rubber stamp and/or allow no legitimate review of prior authorizations

submitted by the dentists. The conspiracy was committed with the intent to shift blame from the

State and its agent, improperly blame the lntcrvenors, and enrich the State and Xerox. By

recouping money from providers that were not actually to blame, the State and Xerox hoped to



Plea in Intervention
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limit their own liability in the event of a Federal clawback action, and/or respond to unflattering

news reports of Texas' payments for Medicaid braces. This agreement and ensuing acts of the

party to blame the dentist providers for their own improper acts and omissions is a proximate

cause of the injury to Intervenors.

                           Not Liable for Illegal Acts of Third Party

65.     Intervenor re-alleges and incorporates the above facts and allegations as if fully set out

herein. As alleged by the State in Section VIII paragraph 46 of the State's petition, Xerox has

committed or is about to commit unlawful acts. The iUegal acts of Xerox in failing to provide

proper prior authorization review in rubber stamping the doctors prior authorization requests is

not the fault of the doctors. The doctors are not responsible for or liable to the State for the

illegal acts of a third party for which the doctors had no control; the State should not withhold

money from the lntervenors because of the illegal acts of Xerox complained about by the State.

                                       Breach of Contract

66.     lntervenor re-alleges and incorporates the above facts and allegations as if fully set out

herein. Intervenors are a direct or third party beneficiary of the contract with Xerox and the State

of Texas. The State of Texas has breached terms of the contract by failing to supervise Xerox

and/or reviewing the work product of Xerox. This breach by State, which allowed non-

perfonnance by Xerox, has created the pretext by which the State affinnatively sued Intervenors

for repayment. To the extent that the State has withheld money and/or made claims for damages

against lntervenors based on the contracts in question, the State has waived immunity and is

liable up to those amounts plead.

                                           Conversion

67.     Jntervenor re-alleges and incorporates the above facts and allegations as if fully set out



Plea in Intervention
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herein. State and Federal law required Intervenor to request prior authorization for orthodontic

services. Those prior authorization requests were approved by Xerox, which required Intervenors

to provide the services. The State has unilaterally made a decision to that, based on the acts and

omissions of Xerox, the Intervenor should not have been paid; the State then placed Intervenor

on a payment hold. To the extent that Intervenor has provided services for which Intervenor

should be paid, and money which has been earmarked by the State for that payment but withheld,

the State has converted the funds. In addition, the States' acts/omissions are a violation of the

Texas Constitution Section 9 in that the acts/omissions constitute a seizure of money held under

the pretext of a payment hold.

                                            VI. Damages

68.    Intervenors have suffered and are entitled to recover damages including, but not limited

to loss of use of funds sequestered by the State, actual damages, damage to reputation, damage to

business, damage to earnings and earning power, inconvenience, loss of enjoyment of life, fees

and expenses, interest, punitive/exemplary damages, and attorney fees.

                                           VII. Conclusion

69.     Xerox's actions have harmed Intervenor because Xerox committed fraud, negligent

hiring, negligence, and gross negligence. Xerox's actions have subjected Intervenor to

unnecessary civil and administrative legal action, and that, in turn has caused additional injury.

Xerox's actions have required Intervenor to perform Xerox's job after-the-fact, by proving to the

State that the orthodontic services rendered were medically necessary and appropriate for

reimbursement. The State's actions have harmed Intervenor because the state's conspiracy to

improperly blame the dentists has resulted in meritless legal claims against the Intervenors and

conversion of the Intervenor's property.



Plea in Intervention
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                                        VIII. Jury Demand

70.     Intervenors respectfully request a trial by jury.

                                    IX. Request for Disclosure

71.     Under Texas Rule of Civil Procedure 194, Intervenor requests that Plaintiff the State

disclose, within 50 days of the service of this request, the information or material described in

Rule 194.2.



72.     Wherefore, premises considered, Intervenors MAN & CFN Ortho, PLLC, Navarro

Orthodontix of Irving, PC, Navarro Orthodontix of Ft. Worth, PLLC, Navarro Orthodontix of

McAllen, PLLC, Navarro Orthdontix of Edinburg, PLLC, Navarro Orthodontix, PC and Dr.

Carlos F. Navarro pray that upon final bearing of the cause, judgment be entered jointly and

severally against the Plaintiff the State of Texas and Defendant Xerox State Healthcare, LLC for

damages, together with pre-judgment and post judgment interest at the legal rate, costs of court,

and other such relief to which the Intervenors may be entitled.




Plea in Intervention
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                       Respectfully.submitted,




                       RIGGS, ALESHIRE & RAY, P.C.
                       700 Lavaca, Suite 920
                       Austin, Texas 78701
                       (512) 457-9806 (Telephone)
                       (512) 457-9866 (Fax)
                       jray@r-alaw.com


                          Isl Hart Green wl permission by J Ray
                       E. Hart Green
                       Texas Bar No. 08349290
                       Mitchell A . Toups
                       Texas Bar No. 20151600
                       WELLER, GREEN, TOUPS & TERRELL, L.L.J>.
                       Post Office Box 350
                       Beaumont, Texas 77704-0350
                       (409) 838-0101 (Telephone)
                       (409) 832-8577 (Fax)
                       hartgr@wgttlaw.com
                       matoups@wgttlaw.com
                       ATTORNEYS FOR INTERVENORS
                       MAN & CFO ORTHO, PLLC, NAVARRO
                       ORTHODONTIX OF IRVING, PC, NAVARRO
                       ORTHODONTIX OF FT. WORTH, PLLC,
                       NAVARRO ORTHODONTIX OF EDINBURG,
                       PLLC, NAVARRO ORTHODONTIX, PC, AND
                       DR.CARLOSF.NAVARRO




Plea in Intervention
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                               CERTIFICATE OF SERVICE

        I hereby certify that a true and correct copy of the foregoing Plea in Intervention was

served via e-mail and certified mail, return receipt requested on this 15th day of May, 2014 on

the following:

Eric J.R. Nichols
Beck Redden
515 Congress Avenue, Suite 1750
Austin, Texas, 78701
ENICHOLS@beckredden.com
Attorney for Xerox Defendants

Raymond Winter
Chief, Civil Medicaid Fraud Division
Assistant Attorney General
Office of the Attorney General
P.O. Box 12548
Austin, Texas 78711-2548
raymond. winter@texasattomeygeneral.gov
Attorney for the Plaintiff State of Texas




Plea in Intervention
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                                   CAUSE NO. D-1-GV-14-000581

RGV SMILES BY ROCKY L. SALINAS,                        §       IN THE DISTRICT COURT
DDS, PA, AND DR. ROCKY SALINAS,                        §
                 INTERVENORS,                          §
                                                       §
vs.                                                    §
                                                       §
THE STATE OF TEXAS,                                    §
               PLAINTIFF,                              §
                                                       §       53rd JUDICIAL DISTRICT
VS.                                                    §
                                                       §
XEROX CORPORATION; XEROX                               §
STATE HEALTHCARE, LLC; ACS                             §
STATE HEALTHCARE, LLC, A XEROX                         §
CORPORATION                                            §
              DEFENDANTS.                              §       TRAVIS COUNTY, TE XAS

                                     PLEA IN INTERVENTION

TO THE HONORABLE JUDGE OF SAID COURT:

        NOW COMES, RGV Smiles by Rocky L. Salinas, DDS, PA and Dr. Rocky Salinas,

hereinafter lntervenors, and file this Plea in Intervention, and in support hereof, would

respectfully show the Court the following:

                                         I. Parties and Service

1.      Pl aintiff~   State of Texas, has appeared in this action and may be served with a notice of

this Plea by sending a copy to its attorney, the Attorney General of Texas, Greg Abbott, at P. 0.

Box 12548, Austin, Texas 78711-2548.

2.      Defendant Xerox Corporation is a corporation organized under the laws of New York has

agreed to accept service with process upon its Attorney in this suit. Defendant Xerox State

Health Care, LLC, f/k/a ACS State Healthcare, LLC (misnamed by the State of Texas as ACS

State Healthcare, LLC, a Xerox Corporation is a wholly-owned subsidiary of Xerox Corporation

organized under the laws of the State of Delaware with Texas offices at 2828 N. Haskell Ave.,


Plea in Intervention
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Dallas, Texas 75204, and has agreed to accept service with process upon its Attorney in this suit.

Defendant Xerox Corporation acquired Defendant ACS in 20 l 0. On information and belief,

ACS State Healthcare, LLC, changed its name to Xerox State Healthcare, LLC, on April 1, 2012.

Defendants are referred to hereinafter as "Xerox Defendants."

3.         RGV Smiles by Rocky L. Salinas, DDS, PA, (hereinafter RGV) is a Texas professional

association, and an approved Medicaid provider, with its principal place of business listed as 805

N. Cage, Pharr, Texas 78577. RGV can be served through the undersigned counsel.

4.        Dr. Rocky Salinas 1 is a licensed Texas dentist, approved Medicaid provider, and the

owner ofRGV. Dr Salinas can be served through his undersigned counsel.

                                            II. Jurisdiction and Venue

5.         This Court has subject-matter jurisdiction in that the amounts soui:,rht by lntervenors from

all parties (both Plaintiff and Defendants) are in excess of the minimal jurisdiction limits of this

court. lntervenors affirmatively plead that this suit is not governed by the expedited-actions

process in TEXAS RULE OF CIVIL PROCEDURE 169 because intervenors seek monetary relief over

$100,000.

6.         This Court has jurisdiction over all parties in this petition because:

           a) The State has waived sovereign immun ity and is subject to Intervenors' claims;

           b) This Court has j urisdiction over Xerox Defendants because each Defendant does

                business in the State of Texas and committed the unlawful acts alleged in this petition

                in whole or part in Texas.

7.         Venue is proper in Travis County under TRCP § 15.020 because this suit involves a

" major transaction"; Venue is permissive under TRCP § 15.035(a) because lntervenor asserts

claims for breach of contract. Venue is proper pursuant to TRCP § 15.02 because alJ or a

1
    For the sake of simplicity, the Intervenors will be collectively referred to as "RGV" unless expressly noted.

Plea in Intervention
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substantial part of the events or omissions giving rise to the claim occurred in Travis County.

Many of the unlawful acts committed by the State and Xerox Defendants were committed in

Travis County, including the making of false statements and misrepresentations of material fact.

                               ill. Intervenors' Interest in the Suit

8.       lntervenors RGV Smiles and Dr. Rocky Salinas have a judicial interest in the matters and

controversy in this litigation. The relationship between Intervenors, the State as the Plaintiff and

the Xerox Defendants is a tripartite arrangement necessitating that, in the interest of j udicial

economy and j ustice, all claims be bound and subsumed into one cause of action. Upon

information and belief: Intcrvenors were initially sued by the State in a qui Lam action wherein

the State alleged that lntervenors defrauded the State. The State has elected to pursue its

remedies against the lntervenors in an administrative bearing. Now, the State has sued Xerox in

State Court on the same facts, alleging that Xerox has committed fraud against the

State. lntervenors have claims against both the State and Xerox. It is assumed that Xerox will

have claims against the State, and perhaps allege claims against the Intervenors. All of the

different parties' claim s are inextricably intertwined, as they relate to Tntervenors' submission of

prior authorization requests to Xerox, the handling of those claims by the Xerox Defendants, the

State' s handling and oversight of its agent Xerox in Xerox's performance of its contractual and

legal duties, and State's subsequent legal action against the Intervenors for services approved by

Xerox.

                                             IV. Facts

What is Prior Authorization?

9.       Texas Medicaid requires that orthodontic services be independently and obj ectively

scrutinized before the State consents to treatment and payment Prior authorization is the



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mechanism the State uses to determine the medical necessity of non-emergency orthodontic

items/services prior to delivery of those items/services. Pursuant to Texas Health and Human

Services Commission (hereinafter "HHSC") rules, Texas Medicaid greatly restricts when it will

pay for orthodontic services:

       Orthodontic services for cosmetic reasons only are not a covered Medicaid
       service. Orthodontic services must be prior authorized and are limited to
       treatment of severe handicapping malocclusion and other related conditions as
       described and measured by the procedures and standards published in the
       [TMPPM2] .

25 TEX. ADMrN. CODE §33.71 (emphasis added). Prior authorization is a statement of assurance

to the orthodontic provider that, absent an intervening disqualifying factor, the delivery of the

requested orthodontic service has been deemed by Xerox to be medically necessary, and

therefore approved by the State.

I 0.    The prior authorization process is straightforward. Texas Medicaid requires that a dental

provider send documentation (x-rays, cephalographs, photos, etc.) regarding the patient's

orthodontic condition to Xerox for review. In addition, the orthodontic provider submits his

profess ional opin ion of the patient on a Handicapping Labio-lingual Deviation index (HLD)

score sheet. Xerox knew providers relied entirely on the prior authorization process because

approval was a mandatory prerequisite to providing orthodontic services and being paid. Once

Xerox issued its prior authorization decision, the decision was not appealable by the provider.

l I.    The HLD scoring system combines a number of treatable orthodontic conditions into an

index. HLD score sheets use a mix of objective and subjective conditions to detennine whether a

Medicaid patient qualifies for orthodontic services. The fact that the HLD score sheet requires

both objective and subjective findings highlights the importance of Xerox performing a thorough


2
 "TMPPM" is the Texas Medicaid Provider Procedures Manual, which is issued yearly by the HHSC and provides
valuable guidance to Medicaid providers.

Plea in Intervention
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prior authorization review.

The History of Orthodontic Prior Authorization.

12.    The process for reviewing and approving orthodontic prior authorization requests pre-

dates the defendant Xerox's handling of Medicaid claims processing. The National Heritage

fnsurance Corporation (NHIC) was responsible for reviewing prior authorization requests before

Xerox assumed the contract in January 2004. Starting January I, 2004, Xerox acted as an

independent contractor, and was a contracted agent of the State, under the contract with HHSC.

Xerox was responsible for reviewing each orthodontic service request, and Xerox was further

charged with the responsibility to grant or deny each prior authorization request per the program

requirements. The result was that Xerox had the final say in determining the medical necessity of

each request for orthodontic services.

13.     Prior to assuming the NHIC contract, and for a period of time after assuming the contract

from NHlC, Xerox received training from NHTC personnel regarding tbe proper method for

receiving and processing orthodontic prior authorization requests. NHIC personnel explained

how and why the review of each prior authorization submission was important, and walked

Xerox through the process. Despite its training from NHIC, Xerox had no intention of following

the prior authorization system that had been in place for years, nor did Xerox intend to otherwise

meet the prior authorization requirements set out in its contract, the TMPPM and required by

state law.

Xerox rejects its contractual responsibilities.

14.     When Xerox took over the contract in 2004, it immediately abandoned the prior

authorization review process that bad been setup by NHIC. Xerox never intended to fulfill its

orthodontic prior authorization responsibilities to HHSC. From 2004 to 2011, Xerox continually



Plea in Intervention
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m isrepresented that it was acting in compliance with its contractual duties.

15.      It is now known that Xerox failed to adequately staff their prior authorization division

with knowledgeable medical professionals. Xerox employed only one licensed dentist from 2004

through 20 11, which was far short of the manpower necessary to handle the review o f tens of

thousands of orthodontic prior authorization requests every year. Xerox could not reasonably

have expected to hand le such a w orkload by employing only one dentist.

Xerox potentia lly commits thousands of violations.

16.      It is be lieved Xerox allowed "dental specialists"-unliccnsed, unq uali fied individuals-

to render prior author ization opinio ns regarding the med ical necessity of requested orthodontic

services. The "dental specialist" approvals were not reviewed or ratifi ed by Xerox's licensed

dental d irector or another qualified dental professional. These actions not only violated Xerox's

contractual obligations, they may have also violated other Texas law such as the Dental Practice

Act. 3 It is believed these unlicensed Xerox "specialists" rendered tens of thousands of prior

authorization approvals/medical opinions in violation of Texas law.

L7.      Xerox w as paid by the state for each prio r authorization decision that was made. It is

believed that Xerox employed unlicensed " specialists," rather than licensed Texas dentists, as a

pro fit generating measure.

18.      From January 2005 through February 2012, lntervenor subm itted prior author ization

requests, as required, to Xerox for a determ ination of medical necessity. Unbeknownst to

Intervenor, Xerox ' s dental specialists-not the dental d irector-approved almost all of

Intervenor's requests. Xerox's prior authorization approvals were promises that:


3
 Texas Occupations Code §251.003 prevents unlicensed individuals from diagnosing conditions of the human teeth
and mouth. Section 256.00 I states that a person may not practice dentistry without a license. Thus, state law requires
that opinions regarding medical necessity of orthodontic treatment must be made by licensed dentists. Section
264.15 1 prescribes penalties for certain violations of the Dental Practice Act.

Plea in Intervention
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       a) the requested orthodontic services were med ically necessary, and/or

       b) the approval had been issued by a licensed dentist, and/or

       c) the approval was an actual and legitimate dental diagnosis, and/or

       d) the requested orthodontic services were allowable under Texas law and as permitted

by Medicaid pol icy, the TMPPM, and HHSC rules, and/or

       e) a proper, thorough and legal review had been made, and/or

        f) future orthodontic services would be properly reimburseable to lntervenors, absent

some intervening disqualification (such as the patient's ineligibility).

19.     Because Xerox was charged with determining medical necessity, and because prior

authorization approval was a mandatory prerequisite to furnishi ng services, the promises were

material. lntervenors expected performance of these promises. lntervenors relied on Xerox.

Further, Xerox promised that its subsequent payments to lntervenors (after the services had

actually been delivered) were made because the services had been, in fact, properly approved as

medically necessary. Each prior authorization approval represents a separate violation of the law

!f Xerox's approval was issued illegally and/or in violation of its contractual obligations.
Xerox actively concealed its potentially illegal activity.

20.     Xerox withheld the truth regarding its prior authorization program. In an attempt to

publicly appear consistent with NHIC's prior authorization process, Xerox continued to require

that dental providers (such as lntervenor) submit all supporting documentation for each HLD

score sheet. It is now believed that, incredibly, Xerox did nothing with that documentation, other

than assure that it had been submitted by the provider. lt is believed that Xerox' s specialists were

instructed to forward to its dental director only those requests that had scored below the

th reshold for orthodontic services (i.e. below 26 points on the HLD score sheet), or had some



Plea in Intervention
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provider justification attached. As a result, only J 0% of the orthodontic prior authorization

requests were actually fotwarded to Xerox's one licensed dentist.                      Xerox's actions were

ca lculated to make Xerox appear comp liant with its contract and HHSC policies, while Xerox

knew that its actions were entirely inconsistent with the letter and spirit of its obligations.

Effectively, then, Xerox's actions not only damaged the Medicaid program directly by approving

services without detennining their medical necessity, but Xerox's deception also exacerbated the

problem by failing to give providers guidance regarding the proper standard for medical

necessity, thus causing these providers substantial damages.

21.       For the past ten years, Xerox has continued to publicly represent to the world that it was

fulfi lling its contractual and legal responsibil ities. Based on Xerox's representations that it was

fu lfilli ng its duties to the State, Xerox had its contract with HHSC repeatedly renewed from 2004

through the present. Each year that Xerox had its contract renewed, it represented that it would

fu lfill its contractual obligations and abide by Texas law requiring that decisions about medical

necessity be rendered only by licensed dentists. Xerox made those representations knowing that

it had not done so in the past, and had no intention of changing its procedures to do so in the

future.

The Frew decision magnifies Xerox's acts.

22.       Jn September 2007, after fifteen years of litigation on the subject, Texas was ordered to

implement a corrective action plan that increased the Medicaid reimbursement rates to all dental

providers . That plan was required pursuant to the Frew case4, which was a 1993 class-action



•Frew v. Gilbert, 109 F. Supp. 2d 579 (E.D. Tex. 2000) vacated sub nom. Frazar v. Gilbert , 300 F.3d 530 (5th Cir.
2002) rev'd sub nom. Frew ex rel Frew v. Hawkins, 540 U.S. 431 , 124 S. Ct. 899, 157 L. Ed. 2d 855 (2004) and
afj'd in part, appeal dismissed in part sub nom. Frazar v. Hawkins, 376 F .3d 444 (5th Cir. 2004); Frew v. Hawkins,
401 F. Supp. 2d 619 (E.D. Tex. 2005) affd sub nom. Frazar v. Ladd, 457 F.3d 432 (5th Cir. 2006); Hawkins v.
Frew, 549 U.S. 1118, 127 S. Ct. 1039, 166 L. Ed. 2d 714 (2007).


Plea in Intervention
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lawsuit against the .HHSC alleging that Texas' Medicaid reimbursement rates were so low that

they prevented indigent children from receiving timely, comprehensive health care.

23.    In response to Frew's corrective action plan, the 2007 Texas Legislature allocated $707

million ($1.8 billion in state and federal funds combined) to increase medical and dental

reimbursement rates. The increase in dental reimbursement rates was intended to entice dentists

to become Medicaid providers. It worked. The state raised payment rates for dental services, and,

as a result, the number of dentists participating in Medicaid increased from 45.4% in 2007 to

63.4% in 2010. As expected indeed, as intended spending on Texas's dental services increased

dramatically.

24.    Although the number of prior approval requests increased by 240% between 2007 and

201 O, Xerox continued to employ only one dentist. That dentist was neither tasked with nor

responsible for supervising the clerical specialists that were issuing the approvals.

25.    By 2010, orthodontic spending under Texas' Medicaid program had skyrocketed. Xerox

was the sole entity responsible for overseeing this increase, because it was the sole gatekeeper

for the approval and payment of orthodontic services. Although the Texas Legislature had

increased fund ing to attract dentists into the Medicaid program, all of the budgeted fonds were

required to be spent only on medically necessary services.

The Office of lnspector General seeks recovery from Medicaid providers.

26.     In early 2011, a series of news stories began highlighting the large amount of money

being spent on orthodontics in Texas. In July 2011, the Federal government notified Texas of its

intent to audit whether Texas' prior authorization process was ensuring that only medically

necessary orthodontic cases were being approved and paid. With the prospect of a federal

clawback action looming against Texas because of Xerox's prior authorization failures, the



Plea in Intervention
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Texas Office of Jnspector General (hereinafter "State") took a drastic step. Beginning in 2011,

the State generated a list of the top Medicaid orthodontic billers and placed them on " payment

hold." Intervenor was one of those providers.

27.    Given Intervenors' proximity to some of the state's poorest children, and the mandates of

the Frew decision, lntervenor served a large Medicaid patient population. Because it served a

large Medicaid population, it submitted a large number of prior authorization requests to Xerox

from 2004 through 201 l.

28.     lntervenors did not know that Xerox was faili ng to perform a true and accurate review for

medical necessity. Intervenors relied on Xerox 's prior authorization approvals to confirm that

dentists' analysis was proper and consistent with Medicaid standards and requirements.

29.     Again unbeknownst to lntervenors, State audits in 2008 and 2012 concluded that most, if

not almost all, of the prior authorization requests for patients with HLD scores of 26 or greater

(indicating medical necessity) had not been actually "evaluated" at all by Xerox. These State

audits made the Federal government' s pend ing aud it especially dangerous to Texas, because the

2008 and 2012 audits were admissions that Xerox had been approving and paying claims that

may not have met the federal standards for prio r authorization. T hus the State, through the

Attorney General, concluded that a true finding of medical necessity had in reality not occurred.

T he Attorney General claimed that billing for services that are not necessary is fraud, despite

Xerox's prior authorization approvals.

30.     It is now believed that rather than prosecute Xerox for its fai lure to properly evaluate

dentists' prior authorization requests, the State and the Texas Attorney General protected Xerox.

This protection included the State failing to allow T MHP to hire additional medically licensed

staff, and in 2008-2009 telling TMHP to continue its prior authorization practices. Although the



Plea in Intervention
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Attorney General took immediate action against the providers, the Attorney General refused to

hold Xerox accountable for its orthodontic "approvals," its repeated contractual failures, or its

violation of State law. Instead, the Attorney General made fraud allegations against each of the

top 25 dental providers, includ ing Intervenor, which has caused more injury and damages to

lntervenors. Stated differently, Xerox issued its approvals through a process that gutted the

State's belief in the accuracy of Xerox's decision, and the Texas Attorney General punished the

providers instead of Xerox.

31.     Because the acts/omissions of Xerox so undermined the process, the State

eventuallyinstituted a "payment hold" against Intervenor. A payment hold temporarily freezes

future Medicaid payments to a provider, despite the provider's ongoing participation in the

Medicaid program. The payment hold against Intervenor was issued pursuant to what the State

called a "credible allegation of fraud" regarding Intervenor's orthodontic prior authorization

requests. The State placed a 100% payment hold against Intervenor's orthodontic billings.

32.     At the time the Attorney General began prosecuting Intervenor and similarly situated

Medicaid providers, it knew Xerox, not Intervenor, had the sole authority and responsibility to

authorize orthodontic services and payments. The Attorney General knew that the State's audits

of Xerox in 2008 and 2012 had concluded that Xerox was violating its contract with the State,

violating its own State-approved policies and procedures, and violating State law. Nevertheless,

the Attorney General continued to only prosecute dental providers like the lntervenor; the

Attorney General refused to hold Xerox responsible. In fact, in one shameless and brazen

demonstration of State's unwavering protection of Xerox, the Deputy Director of Texas' Office

of the Inspector General testified in a hearing that Xerox's acts and omissions were so egregious




Plea in Intervention
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they were outside the course and scope of Xerox's agency with State.5 Upon information and

belief, the State and the Attorney General protected Xerox. for over 6 years fearing that revealing

the State's cuJpability would subject the State to a federal clawback for hundreds of millions of

dollars. [nstead, the State and the Attorney General pointed at the dental providers.

33.      Ultimately, the evidence of Xerox's failures, and the State's refusal to correct Xerox for

over 6 years, became too much to bide. Three months after some providers filed suit against

Xerox, and following a series of news stories questioning why Xerox had not suffered for its

failures, the Attorney General reversed course. On May 9, 20 14, the State, through the Texas

Attorney General, filed this lawsuit against Xerox for fraud, basically mirroring the suit filed

approximately I00 days earlier by similarly situated providers. The State's claims in this fraud

lawsuit include admissions that the State knew as early as 2006 that Xerox's actions were

improper.

34.      As a result of the payment hold, Intervenor was required to make significant financial

concessions and changes to its business. Intervenor also engaged legal counsel to defend itself

from the State's cla ims, at a s ignificant expense that continues today.

35.      The State's allegations against intervenor are rooted in two assumptions. First, the State

assumes Intervenor's prior authorization requests were not properly vetted by Xerox; that is,

Xerox approved Intervenor's requests without knowing whether approval was actually proper.

Because Xerox. is not a party to Intervenor's administrative case, rntervenor is prevented from

determining whether Xerox did, in fact, perform a proper review of In tervenor's prior

authorization requests. By intervening in this lawsuit, Intervenor seeks to address that question,



s Incredibly, that testimony came in an administrative proceeding in which the State was seeking $8 million from a
dental provider for following Xerox's instructions to provide braces to the provider's patients. The idea that the
State could not hold Xerox responsible for its contractual obligations because Xerox had done such a poor job that it
was acting outside of its contract is a novel and imaginative reason not to prosecute Xerox.

Plea in Intervention
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and finally detennine whether Xerox reviewed Intervenor's requests as required by its contract
       .
and the law.

36.     Regarding the State's second assumption, the State alleges some of rntervenor's requests

were approved when, in fact, they should have been denied. Intervenor denied that assertion in

the administrative case, and Intervenor continues to deny that claim here. All services provided

to Intervenor's patients were actually m edically necessary, regardless of what Xerox decided and

in any event under Medicaid guidelines once the authorization was approved, Intervenor was

required to provide the services.

37.     The State continues to aggressively fight any allegation or affirmative defense that could

result in Xerox being held accountable for its part in these HLD scoring cases, despite the State's

contentions in the District Court case to the contrary. Damages continue to accrue.

                                       V. Causes of Action

A. Intervenors ' Claims Against Xerox

      Common Law Fraud (Fraudulent Misrepresentation and Fraudulent Inducement)

38.     Intervenor re-a lleges and incorporates the above facts and allegations as if fully set out

herein. Xerox's prior authorization approvals were fa lse representations made to Intervenor. It is

believed Xerox knowingly issued these prior authorizations to Intervenor because Xerox knew

that it was approving requests without a proper medical review, and/or because it approved the

prior authorization requests without any knowledge of their truth. It is believed Xerox intended

for Intervenor to rely on the approvals as a prerequisite for providing the requested services.

Approval was material because it was a mandatory prerequisite for payment. Intervenor actuaJly

and justi fiably relied on Xerox's fraudulent approvals.

39.     Xerox's approvals induced Intervenor to continue to grade subsequent HLD requests in



Plea in rntervention
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the same or similar manner, and led Intervenor to believe that their requests were consistent with

Medicaid standards and requirements.

40.    Xerox's fraudulent approvals caused injury to Intervenor. As a result of Xerox's actions,

Intervenor submitted requests for payment and Xerox actually paid for those services, Intervenor

was placed on payment hold, Intervenor is forced to defend itself in an administrative payment

hold hearing, and Intervenor is facing administrative claims by HHSC for repayment (including

claims for treble damages and attorney fees). Intervenor's reputation and business have suffered

severe injury. Intervenor seeks recovery of actual and exemplary damages, interest, court costs,

and attorney fees.

                         Breach of the Xerox-State of Texas Contract

4 l.   Intervenor re-alleges and incorporates the above facts and allegations as if fully set out

herein. In the alternative, Xerox's actions constitute a breach of Xerox's contract with the State

for the benefit of Intervenor. Xerox's contract with the state required that it conduct a proper,

thorough and legal review of prior authorization requests for the purpose of determining medical

necessity. To that end, Xerox should have employed a licensed dentist.

42.     Xerox was an agent of the State of Texas engaged specifically for the purpose of

determining medical necessity. The third party beneficiaries of that Xerox-State of Texas

contract were Medicaid patients and Intervenor. The patients were entitled to receive orthodontic

services that were medically necessary. Intervenor was responsible for actually delivering the

orthodontic services that Xerox had deemed medically necessary. Thus, Intervenor was a third

party beneficiary that relied on Xerox's approvals.

43.     Xerox breached its contract by, inter a/ia, failing to provide qualified statl; possibly

violating Texas law; permitting non-dentists to make determinations of medical necessity; and



Plea in Intervention
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issuing medical opinions without conducting a reasonable and prudent examination of evidence.

The breaches were material, and recurred across many different Medicaid patients and for many

years.

44.      Xerox's actions proximately caused Intervenor's injury. Intervenor's injuries were

caused-in-fact by Xerox's actions, and they were foreseeable. Because Xerox's prior

authorization was a necessary prerequisite to providing services, Intervenor relied entirely on

Xerox's determinations regarding medical necessity; thus, Xerox's actions were the direct factual

cause of Intervenor' s injuries. Xerox's actions were foreseeable in that a person of ordinary

intelligence should have anticipated that issuing a decision without actually reviewing or

considering the evidence (x-rays, photos, models, etc.) would eviscerate the credibility and

reliability of the decision. Once the State assumed that Xerox's approvals were not trustworthy,

it was foreseeab le that the State would demand repayment, and/or would require Intervenor to

independently do Xerox's j ob after the fact by proving that payment was proper because the

services were medically necessary and reimbursable under Texas Medicaid law.

45.      Intervenor suffered and continues to suffer sign ificant damage. Intervenor seeks damages

that would have given the lntervenors the benefit of the bargain by putting them in as good a

position as they would have been in if the contract had been performed.          Intervenor seeks

reliance interest damages to restore the expenditures Intervenor made in reliance on Xerox's

contract with the stale and the approvals that Xerox made under that contract. Intervenor also

seeks damages for its restitution interest to restore money sought by the Office of the Inspector

General from Intervenor. Such damages would put the lntervenors in as good a position as it

would have been in if the contract had been properly fulfilled. [n addition, intervenor seeks

liquidated damages as set out in the Xerox-State of Texas contract. Intervenor has engaged legal



Plea in Intervention
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counsel to defend itself from the State's charges, and those legal expenses continue today.

Intervenor has incurred benefit of the bargain damages, out-of-pocket damages, lost profits, lost

future profits, loss of credit, and loss of goodwill.    Intervenor seeks recovt::ry of actual and

exemplary damages, interest, court costs, and attorney fees.

                          Breach of Contract (Promissory Estoppel)

46.     Intervenor re-alleges and incorporates the above facts and allegations as if fully set out

herein. In the alternative, Xerox's actions constitute promissory estoppel.

47.     Xerox's prior authorizations constitute promises to Intervenor in numerous ways.

Because prior authorization was a prerequisite to furnishing services, and because Xerox was the

entity charged with discharging prior authorization duties, Intervenor reasonably, substant ially,

and foreseeably relied on Xerox's promises.

48.     Intervenor suffered and continues to suffer significant damage. Intervenor suffered

reliance damages by investing time, labor, equipment, and orthodontic appliances in each

Medicaid patient that Xerox approved. Intervenor has engaged legal counsel lo defend itself from

the State's charges, and those legal expenses continue today. Intervenor has been required to do

Xerox's job after the fact-namely, demonstrate that the services were medically necessary and

properly reimbursable under Texas Medica id law. Intervenor has incurred benefit of the bargain

damages, out-of-pocket damages, lost profits, lost future profits, loss of credit, and loss of

goodwill. All of these damages were directly and/or proximately caused by Xerox's promises.

Intervenor seeks recovery of actual and exemplary damages, interest, court costs, and attorney

fees.

                            Negligent Hiring/Negligent Supervision

49.     Intervenor re-alleges and incorporates the above facts and allegations as if fully set out



Plea in Intervention
Page 16 of25
herein. Xerox's actions constitute negligent hiring and/or negligent supervision. Xerox was

required to render medical diagnoses. To that end, Xerox was required by law to employ a

licensed dentist to render a diagnosis regarding medical necessity. Xerox was also required by

law to properly supervise its employees to make sure diagnoses were made only by licensed

dentists.

50.     Xerox knew or should have known that decisions regarding medical necessity can only

be rendered by licensed personnel. Texas Occupations Code section 251.003 defines the practice

of dentistry to include a diagnosis of the human mouth and/or teeth; section 256.001 states that a

person may not practice dentistry without a license; section 264.151 makes it a third-degree

felony to practice dentistry without a license.

51.     Xerox's actions proximately caused Intervenor's injury. Intervenor's injuries were

caused-in-fact by Xerox's actions, and they were foreseeable. Because Xerox's prior

authorization was a necessary prerequisite to providing services, Intervenor relied entirely on

Xerox's determinations regarding medical necessity; thus, Xerox's actions were the direct factual

cause of Intervenor's injuries. Xerox's actions were foreseeable in that any person of ordinary

intelligence should have anticipated that paying Intervenor for services that have not properly

been determined to be medically necessity would precipitate a demand for repayment, and/or

would require Intervenor to independently do Xerox's job after the fact by proving that payment

was proper because those services were medically necessary and were reimbursable under Texas

Medicaid law.

52.     Intervenor suffered and continues to suffer significant damage. Intervenor suffered

reliance damages by investing the cost of services for each Medicaid patient that Xerox

approved. Intervenor has engaged legal counsel to defend itself from the State's charges, and



Plea in Intervention
Page 17 of25
those legal expenses continue today. Intervenor suffered and continues to suffer significant

damage to its reputation, business, referral base, earnings and earning power. Intervenor has

suffered inconvenience and loss of enjoyment of life in that he has had to dedicate significant

mental and personal capital to doing Xerox's job. Intervenor has suffered exemplary damages

because Xerox's conduct was grossly negligent, outrageous and malicious, and such conduct

should be penalized so that it is deterred in the future. Intervenor seeks recovery of actual and

exemplary damages, interest, court costs, and attorney fees.

                                           Negligence

53.    Intervenor re-alleges and incorporates the above facts and allegations as if fully set out

herein. Xerox's actions constitute negligence and gross negligence. Xerox was required to render

medical diagnoses. To that end, Xerox had a duty to employ a licensed dentist to render a

diagnosis supporting or denying medical necessity. Xerox had a duty to assure that the personnel

had appropriate education, training and experience to render such a finding. Xerox had a duty to

review the supporting prior authorization documentation (such as x-rays and photos) to

detennine whether the requested services were medically necessary.

54.     Xerox's actions breached the standard of care because Xerox: failed to provide prior

authorization staff that were properly licensed, qualified and experienced dental professionals;

violated the law, specifically the Dental Practice Act, by permitting non-dentists to make

determinations of medical necessity, and; issued medical opinions (prior authorizations) without

conducting a reasonable and prudent examination of evidence.

55.     Xerox's actions proximately caused Intervenor's injury. Intervenor's injuries were

caused-in-fact by Xerox's actions, and they were foreseeable. Because Xerox's prior

authorization was a necessary prerequisite to providing services, lntervenor relied entirely on



Plea in Intervention
Page 18 of25
Xerox's determinations regarding medical necessity; thus, Xerox's actions were the direct factual

cause of Intervenor's injuries. Xerox's actions were foreseeable in that any person of ordinary

intelligence should have anticipated that paying Intervenor for services that have not properly

been determined to be medically necessity would precipitate a demand for repayment, and/or

would require Intervenor to independently do Xerox's job after the fact.

56.    Intervenor suffered and continues to suffer significant damage to its reputation, business,

referral base, earnings and earning power. Intervenor has engaged legal counsel to defond itself

from the State's charges, and those legal expenses continue today. Dr. Salinas has suffered

inconvenience and loss of enjoyment of life in that he has had to dedicate significant mental and

personal capital to doing Xerox's job. Intervenor has suffered exemplary damages because

Xerox's conduct is grossly negligent, outrageous and malicious, and such conduct should be

penalized so that it is deterred in the future. Intervenor seeks recovery of actual and exemplary

damages, interest, court costs, and attorney fees.

                                  Negligent Misrepresentation

57.     Intervenor re-alleges and incorporates the above facts and allegations as if fully set out

herein. Xerox's actions constitute negligent misrepresentation. Xerox's actions constitute

misrepresentations to Intervenor in numerous ways. Because, inter alia, prior authorization

approval was a prerequisite to furnishing services, these representations guided and controlled

Intervenor' s responses. Intervenor justifiably relied on these representations. Further, Xerox

represented that its prior authorization approvals were dispositive of medical necessity;

Intervenor expected that, once approved, no further inquiry into the medical necessity of the

services would be required. Further, Xerox represented that its subsequent payments to

Intervenor (after the services had actually been delivered) were made because services had been,



Plea in Intervention
Page 19 of25
in fact, properly approved as medically necessary.

58.       Xerox did not exercise reasonable care or competence in making its determinations and

representations. Xerox knew or should have known that its representations were false.

59.       Because prior authorization was a prerequisite to furnishing services, and because Xerox

was the entity charged with discharging prior authorization duties, Intervenor reasonably,

substantially, foreseeably, and justifiably relied on Xerox's representations.

60.       Intervenor suffered and continues to suffer significant damage. Intervenor suffered

reliance damages by investing time, labor, equipment, and orthodontic appliances in each

Medicaid patient that Xerox approve-el. Intervenor has engaged legal counsel to defend itself from

the State's charges, and those legal expenses continue today. Intervenor has been required to do

Xerox's job after the fact. Intervenor has incurred benefit of the bargain damages, out-of-pocket

damages, lost profits, loss of credit, and loss of goodwill. All of these damages were directly

and/or proximately cause by Xerox's negligent misrepresentations. Intervenor seeks recovery of

actual and exemplary damages, interest, court costs, and attorney fees.

                       Gross Negligence I Misapplication of Fiduciary Property

61.       Intervenor re-alleges and incorporates the above facts and allegations as if fully set out

herein. Plaintiffs plead Xerox committed gross negligence and/or the misapplication of fiduciary

property which would entitle lntervenors to unlimited punitive damages.

B. Intervenors' Claims Against The State of Texas

                                   Waiver of Sovereign Immunity

62.       Intervenor re-alleges and incorporates the above facts and allegations as if fully set out

herein.     For a number of reasons, the State has waived sovereign immunity for claims by

Intervenor, including the facts that the State brought, threatened and/or has taken civil and/or



Plea in Intervention
Page 20 of25
administrative action against Intervenors, and because the State has filed suit against Xerox.

                                  Conspiracy/Joint Enterprise

63.    Inteivenor re-alleges and incorporates the above facts and allegations as if fully set out

herein. In the alternative, former Deputy Inspector General Jack Stick has stated publicly that

acts and omissions of Xerox were so egregious as to be outside the course of scope of Xerox's

agency relationship with the State. Assuming same to be true, then the State conspired with

Xerox to breach the contract or allow the breach to continue, conspired to withhold funds from

Intervenor but not Xerox, and conspired to falsely accuse Intervenor of fraud/crime.

64.    The State conspired with Xerox to allow Xerox to violate its various contractual duties.

The State permitted Xerox to process as many prior authorizations as possible without the

required clinical dental review and without using medically knowledgeable personnel. The State

conspired with Xerox to allow Xerox to violate State and Federal law. The State and Xerox

created a scheme to rubber stamp and/or allow no legitimate review of prior authorizations

submitted by the dentists. The conspiracy was committed with the intent to shift blame from the

State and its agent, improperly blame the lntervenors, and enrich the State and Xerox. By

recouping money from providers that were not actually to blame, the State and Xerox hoped to

limit their own liability in the event of a Federal clawback action, and/or respond to unflattering

news reports of Texas' payments for Medicaid braces. This agreement and ensuing acts of the

party to blame the dentist providers for their own improper acts and omissions is a proximate

cause of the injury to Intervenors.

                            Not Liable for Illegal Acts of Third Party

65.     Intervenor re-alleges and incorporates the above facts and allegations as if fully set out

herein. As alleged by the State in Section Vlll paragraph 46 of the State's petition, Xerox has



Plea in Intervention
Page 21 of25
committed or is about to commit unlawful acts. The illegal acts of Xerox in failing to provide

proper prior authorization review in rubber stamping the doctors prior authorization requests is

not the fault of the doctors. The doctors are not responsible for or liable to the State for the

illegal acts of a third party for which the doctors had no control; the State should not withhold

money from the Intervenors because of the illegal acts of Xerox complained about by the State.

                                       Breach of Contract

66.     Intervenor re-alleges and incorporates the above facts and allegations as if fully set out

herein. lntervenors are a direct or third party beneficiary of the contract with Xerox and the State

of Texas. The State of Texas has breached terms o f the contract by failing to supervise Xerox

and/or reviewing the work product of Xerox. This breach by State, which allowed non-

performance by Xerox, has created the pretext by which the State affirmatively sued lntervenors

for repayment. To the extent that the State has withheld money and/or made claims for damages

against Lntervenors based on the contracts in question, the State has waived immunity and is

liable up to those amounts plead.

                                           Conversion

67.     Intervenor re-alleges and incorporates the above facts and allegations as if fully set out

herein. State and Federal law required lntervenor to request prior authorization for orthodontic

services. Those prior authorization requests were approved by Xerox, which required Intervenors

to provide the services. The State has unilaterally made a decision to that, based on the acts and

omissions of Xerox, the Intervenor should not have been paid; the State then placed Intervenor

on a payment hold. To the extent that Intervenor has provided services for which Intervenor

shou ld be paid, and money whlch has been eannarked by the State for that payment but withheld,

the State has converted the funds. In addition, the States' acts/omissions are a violation of the



Plea in Intervention
Page 22 of25
Texas Constitution Section 9 in that the acts/omissions constitute a seizure of money held under

the pretext of a payment hold.

                                            VI. Damages

68.     Intervenors have suffered and are entitled to recover damages including, but not limited

to loss of use of funds sequestered by the State, actual damages, damage to reputation, damage to

business, damage to earnings and earning power, inconvenience, loss of enjoyment of life, fees

and expenses, interest, punitive/exemplary damages, and attorney fees.

                                           VU. Conclusion

69.     Xerox's actions have hanned Intervenor because Xerox committed fraud , negligent

hiring, negligence, and gross negligence. Xerox's actions have subjected fntervenor to

unnecessary civil and administrative legal action, and that, in tum has caused additional injury.

Xerox's actions have required Intervenor to perform Xerox's job after-the-fact, by proving to the

State that the orthodontic services rendered were medically necessary and appropriate for

reimbursement. The State's actions have banned Intervenor because the state's conspiracy to

improperly blame the dentists has resulted in meritless legal claims against the lntervenors and

conversion of the Intervenor's property.

                                        VIIl. Jury Demand

70.     Intervenors respectfully requests a trial by jury.

                                    IX. Request for Disclosure

71.     Under Texas Rule of Civil Procedure 194, Intervenor requests that Plaintiff the State

disclose, within 50 days of the service of this request, the information or material described in

Rule 194.2.




Plea in Intervention
Page 23 of25
72.    Wherefore, premises considered, Intervenors RGV Smiles by Rocky L. Salinas, DDS, PA

and Dr. Rocky Salinas pray that upon final hearing of the cause, judgment be entered jointly and

severally against the Plaintiff the State of Texas and Defendant Xerox State Healthcare, LLC for

damages, together with pre-judgment and post judgment interest at the legal rate, costs of court,

and other such relief to which the lntervenors may be entitled.

                                             Respectfully .submitted,



                                             J son Ray
                                             Texas Bar No. 240
                                             RIGGS, ALESlilRE & RAY, P.C.
                                             700 Lavaca, Suite 920
                                             Austin, Texas 78701
                                             (512) 457-9806 (Telephone)
                                             (512) 457-9866 (Fax)
                                             jray@r-alaw.com


                                                /s/ Hart Green w/ permission by J Ray
                                             E. Hart Green
                                             Texas Bar No. 08349290
                                             Mitchell A. Toups
                                             Texas Bar No. 20151600
                                             WELLER, GREEN, TOUPS & TERRELL, L.L.P.
                                             Post Office Box 350
                                             Beaumont, Texas 77704-0350
                                             (409) 838-0101 (Telephone)
                                             (409) 832-8577 (Fax)
                                             hartgr@wgttlaw.com
                                             matoups@wgttlaw.com
                                              ATTORNEYSFORINTERVENORS
                                              RGV SMILES BY ROCKY L. SALINAS, DDS,
                                              PA AND DR. ROCKY SALINAS




Plea in Intervention
Page 24 of25
                               CERTIFICATE OF SERVICE

        I hereby certify that a true and correct copy of the foregoing Plea in Intervention was

served via e-mail and certified mail, return receipt requested on this l Sth day of May, 2014 on

the following:

Eric J.R. Nichols
Beck Redden
515 Congress A venue, Suite 1750
Austin, Texas, 7870 l
EN ICHOLS@beckredden.com
Attorney for Xerox Defendants

Raymond Winter
Chief, Civil Medicaid Fraud Division
Assistant Attorney General
Office of the Attorney General
P.O. Box 12548
Austin, Texas 787 11-2548
raymond. winter@texasattorneygeneral.gov
Attorney for the Plaintiff State of Texas




Plea in Intervention
Page 25 of25
                               CAUSE NO. D-1-GV-14-000581

WESTMORELAND DENTAL, PA,                             §      IN THE DISTRICT COURT
WESTMORELAND DENTAL OF GARLAND,                      §
PC, WESTMORELAND DENTAL AND                          §
ORTHODONTICS, PA, AND SCOTTIE H.                     §
NGUYEN, DDS                                          §
               lNTERVENORS,                          §
                                                     §
vs.                                                  §
                                                     §
THE STATE OF TEXAS,                                  §
               PLAINTIFF,                            §
                                                     §      53•d JUDICIAL DISTRICT
vs.                                                  §
                                                     §
XEROX CORPORATION; XEROX                             §
STATE HEALTHCARE, LLC; ACS                           §
STATE HEALTHCARE, LLC, A XEROX                       §
CORPORATION                                          §
              DEFENDANTS.                            §      TRAVIS COUNTY, TEXAS

                                  PLEA IN INTERVENTION

TO THE HONORABLE JUDGE OF SAID COURT:

        NOW COMES, Westmoreland Dental, PA, Westmoreland Dental of Garland, PC,

Westmoreland Dental and Orthodontics, PA, and Scottie H. Nguyen, DDS, hereinafter

Intervenors, and file this Plea in Intervention, and in support hereof, would respectfully show the

Court the fo llowing:

                                     I. Parties and Service

l.      Plai ntiff, State of Texas, has appeared in this action and may be served with a notice of

this Plea by sending a copy to its attorney, the Attorney General of Texas, Greg Abbott, at P. 0 .

Box 12548, Austin, Texas 78711-2548.

2.      Defendant Xerox Corporation is a corporatio n organized under the laws of New York has

agreed to accept service with process upon its Attorney in this suit. Defendant Xerox State



Plea in Intervention
Page 1 of25
Health Care, LLC, f/k/a ACS State Healthcare, LLC (misnamed by the State of Texas as ACS

State Healthcare, LLC, a Xerox Corporation is a wholly-owned subsidiary of Xerox Corporation

organized under the laws of the State of Delaware with Texas offices at 2828 N. Haskell Ave.,

Dallas, Texas 75204, and has agreed to accept service with process upon its Attorney in this suit.

Defendant Xerox Corporation acquired Defendant ACS in 2010. On information and belief,

ACS State Healthcare, LLC, changed its name to Xerox State Healthcare, LLC, on April 1, 2012.

Defendants are referred to hereinafter as "Xerox Defendants."

3.      Westmoreland Dental, PA, Westmoreland Dental of Garland, PC, Westmoreland Dental

and Orthodontics, PA (hereinafter Westmoreland) are approved Medicaid providers, and can be

served through the undersigned counsel.

4.      Dr. Scottie H. Nguyen 1 is a licensed Texas dentist, approved Medicaid provider, and the

owner of Westmoreland. Dr Nguyen can be served through his undersigned counsel.

                                          II. Jurisdiction and Venue

5.      This Court has subject-matter jurisdiction in that the amounts sought by Intervenors from

all parties (both Plaintiff and Defendants) are in excess of the minimal jurisdiction limits of this

court. Intervenors affirmatively plead that this suit is not governed by the expedited-actions

process in TEXAS RULE        OF CIVIL PROCEDU RE        169 because intervenors seek monetary relief over

$100,000.

6.       This Court has jurisdiction over all parties in this petition because:

         a) The State has waived sovereign immunity and is subject to Intervenors' claims;

         b) This Court has jurisdiction over Xerox Defendants because each Defendant does

             business in the State of Texas and committed the unlawful acts alleged in this petition


1
 For the sake of simplicil:y, the lntervenors will be collectively referred to as "Westmoreland" unless expressly
noted.

Plea in Intervention
Page 2 of25
            in whole or part in Texas.

7.     Venue is proper in Travis County under TRCP §15.020 because this suit involves a

"major transaction"; Venue is permissive under TRCP § 15.035(a) because Intervenor asserts

claims for breach of contract. Venue is proper pursuant to TRCP §15.02 because all or a

substantial part of the events or omissions giving rise to the claim occurred in Travis County.

Many of the unlawful acts committed by the State and Xerox Defendants were committed in

Travis County, including the making of false statements and misrepresentations of material fact.

                              III. lntervenors' Interest in the Suit

8.     Intervenors Westmoreland Dental, PA, Westmoreland Dental of Garland, PC,

Westmoreland Dental and Orthodontics, PA, and Scottie H. Nguyen, DDS have a judicial

interest in the matters and controversy in this litigation. The relationship between Intervenors,

the State as the Plaintiff and the Xerox Defendants is a tripartite arrangement necessitating that,

in the interest of jud icial economy and justice, all claims be bound and subsumed into one cause

of action. Upon information and belief, Intervenors were initially sued by the State in a qui tam

action wherein the State alleged that Intervenors defrauded the State. The State has elected to

pursue its remedies against the lntervenors in an administrative hearing. Now, the State has sued

Xerox in State Court on the same facts, alleging that Xerox has committed fraud against the

State. lntervenors have claims against both the State and Xerox. It is assumed that Xerox will

have claims against the State, and perhaps allege claims against the Intervenors. All of the

different parties' claims are inextricably intertwined, as they relate to Intervenors' submission of

prior authorization requests to Xerox, the handling of those claims by the Xerox Defendants, the

State's handling and oversight of its agent Xerox in Xerox's performance of its contractual and

legal duties, and State's subsequent legal action against the Intervenors for services approved by



Plea in Intervention
Page 3 of25
Xerox.

                                                IV. Facts

What is Prior Authorization?

9.       Texas Medicaid requires that orthodontic services be independently and objectively

scrutinized before the State consents to treatment and payment. Prior authorization is the

mechanism the State uses to detennine the medical necessity of non-emergency orthodontic

items/serv ices prior to delivery of those items/serv ices. Pursuant to Texas Health and Human

Services Commission (hereinafter "HHSC") rules, Texas Medicaid greatly restricts when it w ill

pay for orthodontic services:

         Orthodontic services for cosmetic reasons only are not a covered Medicaid
         service. Orthodontic services must be prior authorized and are limited to
         treabnent of severe handicapping malocclusion and other related conditions as
         described and measured by the procedures and standards published in the
         [TMPPM2].

25 TEX. ADMJN. CODE §33.71 (emphasis added). Prior authorization is a statement of assurance

to the orthodontic provider that, absent an intervening disqualify ing factor, the delivery of the

requested orthodontic service has been deemed by Xerox to be medically necessary, and

therefore approved by the State.

10.      The prior authorization process is straightforward. Texas Medicaid requires that a dental

provider send documentation (x-rays, cephalographs, photos, etc.) regarding the patient's

orthodontic condition to Xerox for review. In addition, the orthodontic provider submits his

professional opinion of the patient on a Handicapping Labia-lingual Deviation index (HLD)

score sheet. Xerox knew providers relied entirely on the prior authorization process because

approval was a mandatory prerequisite to providing orthodontic services and being paid. Once


2
 "TMPPM" is the Texas Medicaid Provider Procedures Manual, which is issued yearly by the HHSC and provides
valuable guidance to Medicaid providers.

Plea in Intervention
Page 4 of25
Xerox issued its prior authorization decision, the decision was not appealable by the provider.

11.    The HLD scoring system combines a number of treatable orthodontic conditions into an

index. HLD score sheets use a mix of objective and subjective conditions to determine whether a

Medicaid patient qualifies for orthodontic services. The fact that the HLD score sheet requires

both objective and subjective findings highlights the importance of Xerox perfonning a thorough

prior authorization review.

The History of Orthodontic Prior Authorization.

12.    The process for reviewing and approving orthodontic prior authorization requests pre-

dates the defendant Xerox's handling of Medicaid claims processing. The National Heritage

1nsurance Corporation (NHIC) was responsible for reviewing prior authorization requests before

Xerox assumed the contract in January 2004. Starting January l, 2004, Xerox acted as an

independent contractor, and was a contracted agent of the State, under the contract with HHSC.

Xerox was responsible for reviewing each orthodontic service request, and Xerox was further

charged with the responsibility to grant or deny each prior authorization request per the program

requirements. The result was that Xerox had the final say in determining the medical necessity of

each request for orthodontic services.

13.     Prior to assuming the NHIC contract, and for a period ohime after assuming the contract

from NHIC, Xerox received training from NHIC personnel regarding the proper method for

receiving and processing orthodontic prior authorization requests. NHIC personnel explained

how and why the review of each prior authorization submission was important, and walked

Xerox through the process. Despite its training from NHIC, Xerox had no intention of following

the prior authorization system that had been in place for years, nor did Xerox intend to otherwise

meet the prior authorization requirements set out in its contract, the TMPPM and required by



Plea in Intervention
Page 5 of25
state law.

Xerox rejects its contractual responsibilities.

14.     When Xerox took over the contract in 2004, it immediately abandoned the prior

authorization review process that had been setup by NHIC. Xerox never intended to fulfill its

orthodontic prior authorization responsibilities to HHSC. From 2004 to 20 LI, Xerox continually

misrepresented that it was acting in compliance with its contractual duties.

15.     It is now known that Xerox failed to adequately staff their prior authorization division

with knowledgeable medical professionals. Xerox employed only one licensed dentist fro m 2004

through 2011, which was far short of the manpower necessary to handle the review of tens of

thousands of orthodontic prior authorization requests every year. Xerox could not reasonably

have expected to handle such a workload by employing only one dentist.

Xerox ootentially commits thousands of violations.

16.      It is believed Xerox allowed "dental specialists"-unliccnsed, unqualified individuals-

to render prior authorization opinions regarding the medical necessity of requested orthodontic

services. The " dental specialist" approvals were not reviewed or ratified by Xerox's licensed

dental director or another qualified dental professional. These actions not only violated Xerox's

contractual obligations, they may have also violated other Texas law such as the Dental Practice

Act. 3 lt is believed these unlicensed Xerox "specialists" rendered tens of thousands of prior

authorization approvals/medical opinions in violation of Texas law.

17.      Xerox was paid by the state for each prior autho rization decision that was made. It is

bel ieved that Xerox employed unlicensed "specialists," rather than licensed Texas dentists, as a


3
  Texas Occupations Code §251.003 prevents unlicensed individuals from diagnosing conditions of the human teeth
and mouth. Section 256.001 states that a person may not practice dentistry without a license. Thus, state law requires
that opinions regarding medical necessity of orthodontic treatment must be made by licensed dentists. Section
264. 151 prescribes penalties for certain violations of the Dental Practice Act.

Plea in Intervention
Page 6 of25
profit generating measure.

18.    From January 2005 through February 20 12, Intervenor submitted prior authorization

requests, as required, to Xerox for a determination of medical necessity. Unbeknownst to

intervenor, Xerox's dental specialists-not the dental director-approved almost all of

Intervenor's requests. Xerox's prior authorization approvals were promises that:

       a) the requested orthodontic services were medically necessary, and/or

        b) the approval had been issued by a licensed dentist, and/or

        c) the approval was an actual and legitimate dental diagnosis, and/or

        d) the requested orthodontic services were allowable under Texas law and as permitted

by Medicaid policy, the TMPPM, and HHSC rules, and/or

        e) a proper, thorough and legal review hod been made, and/or

        t) future orthodontic services would be properly reimburseable to lntervenors, absent

some intervening disqualification (such as the patient's ineligibility).

19.     Because Xerox. was charged with determining medical necessity, and because prior

authorization approval was a mandatory prerequisite to furnishing services, the promises were

material. lntervenors expected performance of these promises. Jntervenors relied on Xerox.

Further, Xerox promised that its subsequent payments to Intervenors (after the services bad

actually been delivered) were made because the services had been, in fact, properly approved as

medically necessary. Each prior authorization approval represents a separate violation of the law

if Xerox's approval was issued illegally and/or in violation of its contractual obligations.
Xerox actively concealed its potentially illegal activity.

20.     Xerox withheld the truth regarding its prior authorization program. In an attempt to

publicly appear consistent with NHIC's prior authorization process, Xerox continued to require



Plea in Intervention
Page 7 of25
that dental providers (such as I.ntervenor) submit all supporting documentation for each HLD

score sheet. It is now believed that, incredibly, Xerox did nothing with that documentation, other

than assure that it had been submitted by the provider. lt is believed that Xerox's specialists were

instructed to forward to its dental director only those requests that had scored below the

threshold for orthodontic services (i.e. below 26 points on the HLD score sheet), or had some

provider justification attached. As a result, only I 0% of the orthodontic prior authorization

requests were actually forwarded to Xerox's one licensed dentist.            Xerox's actions were

calculated to make Xerox appear compliant with its contract and HHSC policies, while Xerox

knew that its actions were entirely inconsistent with tbe letter and spi rit of its obligations.

Effectively, then, Xerox 's actions not only damaged the Medicaid program directly by approving

services without determining their medical necessity, but Xerox's deception also exacerbated the

problem by failing to give providers guidance regarding the proper standard for medical

necessity, thus causing these providers substantial damages.

21.       For the past ten years, Xerox bas continued to publicly represent to the world that it was

fulfilling its contractual and legal responsibilities. Based on Xerox's representations that it was

fulfilling its duties to the State, Xerox had its contract with HHSC repeatedly renewed from 2004

through the present. Each year that Xerox had its contract renewed, it represented that it would

fulfill its contractual obligations and abide by Texas law requiring that decisions about medical

necessity be rendered on ly by licensed dentists. Xerox made those representations knowing that

it had not done so in the past, and had no intention of changing its procedures to do so in the

future.

The Frew decision magnifies Xerox's acts.

22.       In September 2007, after fifteen years of litigation on the subject, Texas was ordered to



Plea in Intervention
Page 8 of2S
implement a corrective action plan that increased the Medicaid reimbursement rates to all dental
                                                                        4
providers. That plan was required pursuant to the Frew case                 ,   which was a 1993 class-action

lawsuit against the HHSC alleging that Texas' Medicaid reimbursement rates were so low that

they prevented indigent children from receiving time ly, com prehensive health care.

23.     In response to Frew 's corrective action plan, the 2007 Texas Legislature allocated $707

million ($1.8 billion in state and federal funds combined) to increase medical and dental

reimbursement rates. The increase in dental reimbursement rates was intended lo entice dentists

to become Medicaid providers. It worked. The state raised payment rates for dental services, and,

as a result, the number of dentists participating in Medicaid increased from 45.4% in 2007 to

63 .4% in 20 I 0. As expected indeed, as intended spending on Texas's dental services increased

dramatically.

24.     Although the number of prior approval requests increased by 240% between 2007 and

20 I0, Xerox continued to employ on ly one dentist. That dentist was neither tasked with nor

responsible for supervising the clerical specialists that were issuing the approvals.

25.     By 2010, orthodontic spending under Texas' Medicaid program had skyrocketed. Xerox

was the sole entity responsible for overseeing this increase, because it was the sole gatekeeper

for the approval and payment of orthodontic services. Although the Texas Legislature had

increased funding lo attract dentists into the Med icaid program, all o f the budgeted funds were

required to be spent only on med ically necessary services.

The Office o f Inspector General seeks recovery from Med icaid providers.



4
 Frew v. Gilbert, 109 F. Supp. 2d 579 (E.D. Tex. 2000) vacated sub nom. Frazar v. Gilbert, 300 F.3d 530 (5th Cir.
2002) rev'd sub nom. Frew ex rel. Frew v. Hawkins, 540 U.S. 431, 124 S. Ct. 899, 157 L. Ed. 2d 855 (2004) and
affd in part, appeal dismissed in part sub nom. Frazar v. Hawkins, 376 F.3d 444 (5th Cir. 2004); Frew v. Hawkins,
401 F. Supp. 2d 619 (E.D. Tex. 2005) afj'd sub nom. /•razor v. Ladd, 457 F.3d 432 (5th Cir. 2006); Hawkins v.
Frew, 549 U.S. 1118, 127 S. a. l039, 166 L. Ed. 2d 714 (2007).


Plea in Intervention
Page 9 of25
26.    In early 2011, a series of news stories began highlighting the large amount of money

being spent on orthodontics in Texas. In July 201 l, the Federal government notified Texas of its

intent to audit whether Texas' prior authorization process was ensuring that only medically

necessary orthodontic cases were being approved and paid. With the prospect of a federal

clawback action looming against Texas because of Xerox's prior authorization failures, the

Texas Office of Inspector General (hereinafter "State") took a drastic step. Beginning in 2011,

the State generated a list of the top Medicaid orthodontic billers and placed them on " payment

hold." Intervenor was one of those providers.

27.    Given Intervenors' proximity to some of the state's poorest children, and the mandates of

the Frew decision, lntervenor served a large Medicaid patient population. Because it served a

large Medicaid population, it submitted a large number of prior authorization requests to Xerox

from 2004 through 20 l l.

28.    Intervenors did not know that Xerox was failing to perform a true and accurate review for

medical necessity. lntervenors relied on Xerox's prior authorization approvals to confirm that

dentists' analysis was proper and consistent with Medicaid standards and requirements.

29.    Again unbeknownst to Intervenors, State audits in 2008 and 2012 concluded that most, if

not almost all, of the prior authorization requests for patients with HLD scores of 26 or greater

(indicating medical necessity) had not been actually "evaluated" at all by Xerox. These State

audits made the Federal government's pending audit especially dangerous to Texas, because the

2008 and 2012 audits were admissions that Xerox had been approving and paying claims that

may not have met the federal standards for prior authorization. Thus the State, through the

Attorney General, concluded that a true finding of medical necessity had in reality not occurred.

The Attorney General claimed that billing for services that are not necessary is fraud, despite



Plea in Intervention
Page 10 of25
Xerox's prior authorization approvals.

30.    It is now believed that rather than prosecute Xerox for its failure to properly evaluate

dentists' prior authorization requests, the State and the Texas Attorney General protected Xerox.

This protection included the State failing to allow ™HP to hire additional medically licensed

staff, and in 2008-2009 telling TMHP to continue its prior authorization practices. Although the

Attorney General took immediate action against the providers, the Attorney General refused to

hold Xerox accountable for its orthodontic "approvals," its repeated contractual failures, or its

violation of State law. Instead, the Attorney General made fraud allegations against each of the

top 25 dental providers, including Intervenor, which has caused more injury and damages to

Intervenors. Stated differently, Xerox issued its approvals through a process that gutted the

State's belief in the accuracy of Xerox's decision, and the Texas Attorney General punished the

providers instead of Xerox.

31.     Because the acts/omissions of Xerox so undermined the process, the State

eventuallyinstituted a "payment hold" against intervenor. A payment hold temporarily freezes

future Medicaid payments to a provider, despite the provider's ongoing participation in the

Medicaid program. The payment hold against Intervenor was issued pursuant to what the State

called a "credible allegation of fraud" regard ing Intervenor's orthodontic prior authorization

requests. The State placed a 100% payment hold against Intervenor's orthodontic billings.

32.     At the time the Attorney General began prosecuting Intervenor and similarly situated

Medicaid providers, it knew Xerox, not Intervenor, had the sole authority and responsibility to

authorize orthodontic services and payments. The Attorney General knew that the State's audits

of Xerox in 2008 and 2012 had concluded that Xerox was violating its contract with the State,

violating its own State-approved policies and procedures, and violating State law. Nevertheless,



Plea in Intervention
Page 11 of 25
the Attorney General continued to only prosecute dental providers like the Intervenor; the

Attorney General refused to hold Xerox responsible. In fact, in one shameless and brazen

demonstration of State's unwavering protection of Xerox, the Deputy Director of Texas' Ot1ice

of the Inspector General testified in a hearing that Xerox's acts and omissions were so egregious

they were outside the course and scope of Xerox's agency with State. 5 Upon infonnation and

belief, the State and the Attorney General protected Xerox for over 6 years fearing that revealing

the State's culpability would subject the State to a federal clawback for hundreds of millions of

dollars. Instead, the State and the Attorney General pointed at the dental providers.

33.     Ultimately, the evidence of Xerox's failures, and the State's refusal to correct Xerox for

over 6 years, became too much to hide. Three months after some providers filed suit against

Xerox, and following a series of news stories questioning why Xerox had not suffered for its

failures, the Attorney General reversed course. On May 9, 2014, the State, through the Texas

Attorney General, filed this lawsuit against Xerox for fraud, basically mirroring the suit filed

approximately 100 days earlier by similarly situated providers. The State's claims in this fraud

lawsuit include admissions that the State knew as early as 2006 that Xerox's actions were

improper.

34.     As a result of the payment hold, Intervenor was required to make significant financial

concessions and changes to its business. Intervenor also engaged legal counsel to defend itself

from the State's claims, at a significant expense that cont inues today.

35.      The State's allegations against Intervenor are rooted in two assumptions. First, the State

assumes Intervenor's prior authorization requests were not properly vetted by Xerox; that is,


5
 Incredibly, that testimony came in an administrative proceeding in which the State was seeking $8 million from a
dental provider for following Xerox's instructions to provide braces to the provider's patients. The idea that the
State could not hold Xerox responsible for its contractual obligations because Xerox had done such a poor job that it
was acting outside of its contract is a novel and imaginative reason not to prosecute Xerox.

Plea in Intervention
Page 12 of25
Xerox approved Intervenor's requests without knowing whether approval was actually proper.

Because Xerox is not a party to Intervenor's admin istrative case, Intervenor is prevented from

determining whether Xerox did, in fact, perform a proper review of Intervenor's prior

authorization requests. By intervening in this lawsuit, Intervenor seeks to address that question,

and finally determine whether Xerox reviewed Intervenor's requests as required by its contract

and the law.

36.     Regarding the State's second assumption, the State alleges some of Intervenor's requests

were approved when, in fact, they should have been denied. Intervenor denied that assertion in

the administrative case, and Intervenor continues to deny that claim here. All services provided

to Intervenor' s patients were actually medically necessary, regardless of what Xerox decided and

in any event under Medicaid guidelines once the authorization was approved, Intervenor was

required to provide the services.

37.     The State continues to aggressively fight any allegation or affinnative defense that could

result in Xerox being held accountable for its part in these HLD scoring cases, despite the State's

contentions in the District Court case to the contrary. Damages continue to accrue.

                                      V. Causes of Action

A. Intervenors' Claims Against Xerox

      Common Law Fraud (Fraudulent Misrepresentation and Fraudulent inducement)

38.     Intervenor re-alleges and incorporates the above facts and allegations as if fully set out

herein. Xerox's prior authorization approvals were false representations made to Jntervenor. It is

believed Xerox knowingly issued these prior authorizations to Intervenor because Xerox knew

that it was approving requests without a proper medical review, and/or because it approved the

prior authorization requests without any knowledge of their truth. It is believed Xerox intended



Plea in Intervention
Page 13 of25
for Intervenor to rely on the approvals as a prerequisite for providing the requested services.

Approva1 was material because it was a mandatory prerequisite for payment. Intervenor actually

and justifiably relied on Xerox's fraudulent approvals.

39.    Xerox's approvals induced Intervenor to continue to grade subsequent HLD requests in

the same or similar manner, and led Intervenor to believe that their requests were consistent with

Medicaid standards and requirements.

40.    Xerox's fraudulent approvals caused injury to Intervenor. As a result of Xerox's actions,

Intervenor submitted requests for payment and Xerox actually paid for those services, Intervenor

was placed on payment hold, Intervenor is forced to defend itself in an administrative payment

hold hearing, and Intervenor is facing administrative claims by HHSC for repayment (including

claims for treble damages and attorney fees). Intervenor's reputation and business have suffered

severe injury. Intervenor seeks recovery of actual and exemplary damages, interest, cou1t costs,

and attorney fees.

                         Breach of the Xerox-State of Texas Contract

41.     Intervenor re-alleges and incorporates the above facts and allegations as if fully set out

herein. In the alternative, Xerox's actions constitute a breach of Xerox's contract with the State

for the benefit of Intervenor. Xerox's contract with the state required that it conduct a proper,

thorough and legal review of prior authorization requests for the purpose of determining medical

necessity. To that end, Xerox should have employed a licensed dentist.

42.     Xerox was an agent of the State of Texas engaged specifically for the purpose of

determining medical necessity. The third party beneficiaries of that Xerox-State of Texas

contract were Medicaid patients and Intervenor. The patients were entitled to receive orthodontic

services that were medically necessary. Intervenor was responsible for actually delivering the



Plea in Intervention
Page 14 of25
orthodontic services that Xerox had deemed medically necessary. Thus, Intervenor was a thlrd

party beneficiary that relied on Xerox's approvals.

43.      Xerox breached its contract by, inter a/ia, failing to provide qualified staff; possibly

violating Texas law; permitting non-dentists to make determinations of medical necessity; and

issuing medical opinions without conducting a reasonable and prudent examination of evidence.

The breaches were material, and recurred across many different Medicaid patients and for many

years.

44.      Xerox's actions proximately caused Intervenor's injury. Intervenor's injuries were

caused-in-fact by Xerox's actions, and they were foreseeable. Because Xerox's prior

authorization was a necessary prerequisite to providing serv ices, Intervenor relied entirely on

Xerox's determinations regarding medical necessity; thus, Xerox's actions were the direct factual

cause of Intervenor's injuries. Xerox's actions were foreseeable in that a person of ordinary

intelligence should have anticipated that issuing a decision without actually reviewing or

considering the evidence (x-rays, photos, models, etc.) would eviscerate the credibility and

reliability of the decision. Once the State assumed that Xerox's approvals were not trustworthy,

it was foreseeable that the State would demand repayment, and/or would require Intervenor to

independently do Xerox's job after the fact by proving thal payment was proper because the

services were medically necessary and reimbursable under Texas Medicaid law.

45.      Intervenor suffered and continues to suffer significant damage. Intervenor seeks damages

that would have given the lntervenors the benefit of the bargain by putting them in as good a

position as they would have been in if the contract had been performed.         Intervenor seeks

reliance interest damages to restore the expenditures lntervenor made in reliance on Xerox' s

contract with the state and the approvals that Xerox made under that contract. Intervenor also



Plea in Intervention
Page 15 of25
seeks damages for its restitution interest to restore money sought by the Office of the Inspector

General from Intervenor. Such damages would put the Intervenors in as good a position as it

would have been in if the contract had been properly fu lfi lled. In addition, Intervenor seeks

liquidated damages as set out in the Xerox-State of Texas contract. Intervenor has engaged legal

counsel to defend itself from the State's charges, and those legal expenses continue today.

Intervenor has incurred benefit of the bargain damages, out-of-pocket damages, lost profits, lost

future profits, loss of credit, and loss of goodwill.    Intervenor seeks recovery of actual and

exemplary damages, interest, court costs, and attorney fees.

                          Breach of Contract (Promissory Estoppel)

46.     Intervenor re-alleges and incorporates the above facts and a llegations as if fully set out

herein. In the alternative, Xerox's actions constitute promissory estoppel.

47.     Xerox 's prior authorizations constitute prom ises to Intervenor m numerous ways.

Because prior authorization was a prerequisite to furnishing services, and because Xerox was tbe

entity charged with discharging prior authorization duties, Intervenor reasonably, substantially,

and foreseeably relied on Xerox's promises.

48.     Intervenor suffered and continues to suffer significant damage. Intervenor suffered

reliance damages by investing time, labor, equipment, and orthodontic appliances in each

Medicaid patient that Xerox approved. Intervenor has engaged legal counsel to defend itself from

the State's charges, and those legal expenses continue today. Tntervenor has been required to do

Xerox's job after the fact-namely, demonstrate that the services were medicaUy necessary and

properly reimbursable under Texas Medicaid law. Intervenor has incun-ed benefit of the bargain

damages, out-of-pocket damages, lost profits, lost future profits, loss of credit, and loss of

goodwill. All of these damages were directly and/or proximately caused by Xerox's promises.



Plea in Intervention
Page 16 of25
Intervenor seeks recovery of actual and exemplary damages, interest, court costs, and attorney

fees.

                            Negligent Hiring/Negligent Supervision

49.     Intervenor re-alleges and incorporates the above facts and allegations as if fully set out

herein. Xerox's actions constitute negligent hiring and/or negligent supervision. Xerox was

required to render medical diagnoses. To that end, Xerox was required by law to employ a

licensed dentist to render a diagnosis regarding medical necessity. Xerox was also required by

law to properly supervise its employees to make sure diagnoses were made only by licensed

dentists.

50.     Xerox knew or should have known that decisions regarding medical necessity can only

be rendered by licensed personnel. Texas Occupations Code section 251 .003 defines the practice

of dentistry to include a diagnosis of the human mouth and/or teeth; section 256.001 states that a

person may not practice dentistry without a license; section 264.151 makes it a third-degree

felony to practice dentistry without a license.

51.     Xerox's actions proximately caused Intervenor's injury. Intervenor's injuries were

caused-in-fact by Xerox's actions, and they were foreseeable. Because Xerox's prior

authorization was a necessary prerequisite to providing services, Intervenor relied entirely on

Xerox's determinations regarding medical necessity; thus, Xerox's actions were the direct factual

cause of Intervenor's injuries. Xerox's actions were foreseeable in that any person of ordinary

intelJigence should have anticipated that paying Intervenor for services that have not properly

been determined to be medically necessity would precipitate a demand for repayment, and/or

would require Intervenor to independently do Xerox's job after the fact by proving that payment

was proper because those services were medically necessary and were reimbursable under Texas



Plea in Intervention
Page 17 of25
Medica id law.

52.    Intervenor suffered and continues to suffer significant damage. Intervenor suffered

reliance damages by investing the cost of services for each Medicaid patient that Xerox

approved. Intervenor has engaged legal counsel to defend itself from the State's charges, and

those legal expenses continue today. Intervenor suffered and continues to suffer significant

damage to its reputation, business, referral base, earnings and earning power. Intervenor has

suffered inconvenience and loss of enjoyment of life in that he has had to dedicate significant

mental and personal capital to doing Xerox's job. intervenor has suffered exemplary damages

because Xerox's conduct was grossly negligent, outrageous and malic ious, and such conduct

should be penalized so that it is deterred in the future. Intervenor seeks recovery of actual and

exemplary damages, interest, court costs, and attorney fees.

                                           Negligence

53.     Intervenor re-alleges and incorporates the above facts and allegations as if fu lly set out

herein. Xerox 's actions constitute negligence and gross negl igence. Xerox was required to render

medical diagnoses. To that end, Xerox bad a duty to employ a licensed dentist to render a

diagnosis supporting or denying medical necessity. Xerox had a duty to assure that the personnel

had appropriate education, training and experience to render such a finding. Xerox had a duty to

review the supporting prior authorization documentation (such as x-rays and photos) to

determine whether the requested services were medically necessary.

54.     Xerox's actions breached the standard of care because Xerox: failed to provide prior

authorization staff that were properly licensed, qualified and experienced dental professionals;

violated the law, specifically the Dental Practice Act, by permitting non-dentists to make

determinations of medical necessity, and; issued medical opinions (prior authorizations) without



Plea in Intervention
Page 18 of25
conducting a reasonable and prudent examination of evidence.

55.     Xerox's actions proximately caused Intervenor's injury. Intervenor's injuries were

caused-in-fact by Xerox's actions, and they were foreseeable. Because Xerox's prior

authorization was a necessary prerequisite to providing services, Intervenor relied entirely on

Xerox's determinations regarding medical necessity; thus, Xerox's actions were the direct factual

cause of Tntervenor's injuries. Xerox's actions were foreseeable in that any person of ordinary

intelligence should have anticipated that paying In tervenor for services that have not properly

been determined to be medically necessity would precipitate a demand for repayment, and/or

would require Intervenor to independently do Xerox's job after the fact.

56.     Intervenor suffered and continues to suffer s ignificant damage to its reputation, business,

referral base, earnings and earning power. [ntervenor has engaged legal counsel to defend itself

from the State's charges, and those legal expenses continue today. Dr. Nguyen bas suffered

inconvenience and loss of enjoyment of life in that he has had to dedicate s ignificant mental and

personal capital to doing Xerox's job. Intervenor has suffered exemplary damages because

Xerox's conduct is grossly negligent, outrageous and malicious, and such conduct should be

penalized so that it is deterred in the future. [ntervenor seeks recovery of actual and exemplary

damages, inlerest, court costs, and attorney fees.

                                   Negligent Misrepresentation

57.     lntervenor re-alleges and incorporates the above facts and allegations as if fully set out

herein. Xerox's actions constitute negligent misrepresentation. Xerox's actions constitute

misrepresentations to Intervenor in numerous ways. Because, inter alia, prior authorization

approval was a prerequisite to furnishing services, these representations guided and controlled

lntervenor's responses. Intervenor justifiably relied on these representations. Further, Xerox



Plea in Intervention
Page 19of25
represented that its prior authorization approvals were dispositive of medical necessity;

Intervenor expected that, once approved, no further inquiry into the medical necessity of the

services would be required. Further, Xerox represented that its subsequent payments to

Intervenor (after the services had actually been del ivered) were made because services bad been,

in fact, properly approved as medically necessary.

58.    Xerox did not exercise reasonable care or competence in making its determinations and

representations. Xerox knew or should have known that its representations were false.

59.    Because prior authorization was a prerequisite to furnish ing services, and because Xerox

was the entity charged with djscharging prior authorization duties, Intervenor reasonably,

substantially, foreseeably, and justifiably relied on Xerox' s representations.

60.     Intervenor suffered and continues to suffer significant damage. Intervenor suffered

reliance damages by investing time, labor, equipment, and orthodontic appliances in each

Medicaid patient that Xerox approved. Intervenor has engaged legal counsel to defend itself from

the State's charges, and those legal expenses continue today. Intervenor has been required to do

Xerox's job after the fact. Intervenor bas incurred benefit of the bargain damages, out-of-pocket

damages, lost profits, loss of credit, and loss of goodwi ll. All of these damages were directly

and/or proximately cause by Xerox's negligent misrepresentations. Intervenor seeks recovery of

actual and exem plary damages, interest, court costs, and attorney fees.

                       Gross Negligence I Misapplication of Fiduciary Property

61.     Intervenor re-alleges and incorporates the above facts and allegations as if fully set out

here in. Plaintiffs plead Xerox committed gross negligence and/or the misapplication of fiduciary

property which would entitle lntervenors to unlimited punitive damages.

B. lntervenors' Claims Against The State of Texas



Plea in lntervention
Page 20 of25
                                  Waiver of Sovereign Immunity

62.       Intervenor re-alleges and incorporates the above facts and allegations as if fully set out

herein.    For a number of reasons, the State has waived sovereign immunity for claims by

lntervenor, including the facts that the State brought, threatened and/or has taken civil and/or

administrative action against lntervenors, and because the State has filed suit against Xerox.

                                    Conspiracy/Joint Enterprise

63.       Intervenor re-alleges and incorporates the above facts and allegations as if fully set out

herein. In the alternative, former Deputy Inspector General Jack Stick has stated publicly that

acts and om issions of Xerox were so egregious as to be outside the course of scope of Xerox's

agency relationship with the State. Assuming same to be true, then the State conspired with

Xerox to breach the contract or allow the breach to continue, conspired to withhold funds from

Intervenor but not Xerox, and conspired to falsely accuse Intervenor of fraud/crime.

64.       The State conspired with Xerox to allow Xerox to violate its various contractual duties.

The State permitted Xerox to process as many prior authorizations as possible without the

required clinical dental review and without using medically knowledgeable personnel. The State

conspired with Xerox to allow Xerox to violate State and Federal law. The State and Xerox

created a scheme to rubber stamp and/or allow no legitimate review of prior authorizations

submitted by the dentists . The conspiracy was committed with the intent to shift blame from the

State and its agent, improperly blame the Intervenors, and enrich the State and Xerox. By

recouping money from providers that were not actually to blame, the State and Xerox hoped to

limit their own liability in the event of a Federal clawback action, and/or respond to unflattering

news reports of Texas' payments for Medicaid braces. This agreement and ensuing acts of the

party to blame the dentist providers for their own improper acts and omissions is a proximate



Plea in Intervention
Page21 of25
cause of the injury to lntervenors.

                           Not Liable for Illegal Acts of Third Party

65.    [ntervenor re-alleges and incorporates the above facts and allegations as if fully set out

herein. As alleged by the State in Section VUI paragraph 46 of the State's petition, Xerox has

committed or is about to commit unlawful acts. The illegal acts of Xerox in failing to provide

proper prior authorization review in rubber stamping the doctors prior authorization requests is

not the fau lt of the doctors. The doctors are not responsible for or liable to the State for the

illegal acts of a third party for which the doctors had no control; the State should not withhold

money from the Intervenors because of the illegal acts of Xerox complained about by the State.

                                       Breach of Contract

66.    Intervenor rc-aJJeges and incorporates the above facts and allegations as if fully set out

herein. lntervenors are a direct or third party beneficiary of the contract with Xerox and the State

of Texas. The State of Texas has breached terms of the contract by failing to supervise Xerox

and/or reviewing the work product of Xerox. This breach by State, which allowed non-

performance by Xerox, bas created the pretext by which the State affirmatively sued lntervenors

for repayment. To the extent that the State has withheld money and/or made claims for damages

against Intervenors based on the contracts in question, the State has waived immunity and is

I iable up to those amounts plead.

                                           Conversion

67.     Intervenor re-alleges and incorporates the above facts and allegations as if fully set out

herein. State and Federal law required Intervenor to request prior authorization for orthodontic

services. Those prior authorization requests were approved by Xerox, which required Intervenors

to provide the services. The State has unilaterally made a decision to that, based on the acts and



Plea in Intervention
Page 22 of25
omissions of Xerox, the Intervenor should not have been paid; the State then placed Intervenor

on a payment hold. To the extent that Intervenor has provided services for which Intervenor

should be paid, and money which has been earmarked by the State for that payment but withheld,

the State has converted the funds. In addition, the States' acts/omissions are a violation of the

Texas Constitution Section 9 in that the acts/omissions constitute a seizure of money held under

the pretext of a payment hold.

                                            VI. Damages

68.    lntervenors have suffered and are entitled to recover damages including, but not limited

to loss of use of funds sequestered by the State, actual damages, damage to reputation, damage to

business, damage to earnings and earning power, inconvenience, loss of enjoyment of life, fees

and expenses, interest, punitive/exemplary damages, and attorney fees.

                                           VII. Conclusion

69.     Xerox's actions have harmed Intervenor because Xerox committed fraud, negligent

hiring, negligence, and gross negligence. Xerox's actions have subjected Intervenor to

unnecessary civil and administrative legal action, and that, in tum has caused additional injury.

Xerox's actions have required Intervenor to perform Xerox's job after-the-fact, by proving to the

State that the orthodontic services rendered were medically necessary and appropriate for

reimbursement. The State's actions have harmed Intervenor because the state's conspiracy to

improperly blame the dentists has resulted in meritless legal claims against the lntervenors and

conversion of the Intervenor's property.

                                        VIII. Jury Demand

70.     Intervenors respectfully requests a trial by jury.

                                    IX. Request for Disclosure



Plea in Intervention
Page 23 of25
71.    Under Texas Rule of Civil Procedure 194, Intervenors request that Plaintiff the State

disclose, within 50 days of the service of this request, the infonnation or material described in

Rule 194.2.



72.    Wherefore, premises considered, Intervenors Westmoreland Dental, PA, Westmoreland

Dental of Garland, PC, Westmoreland Dental and Orthodontics, PA, and Scottie H. Nguyen,

DDS pray that upon final hearing of the cause, judgment be entered jointly and severally against

the Plaintiff the State of Texas and Defendant Xerox State Healthcare, LLC for damages,

together with pre-judgment and post judgment interest at the legal rate, costs of court, and other

such reliefto which the Tntervenors may be entitled.

                                             Respectfully .submitted,



                                             J son Ray
                                             Texas Bar No. 240 05
                                             RIGGS, ALESHIRE & RAY, P.C.
                                             700 Lavaca, Suite 920
                                             Austin, Texas 78701
                                             (512) 457-9806 (Telephone)
                                             (512) 457-9866 (Fax)
                                             jray@r-alaw.com


                                               /s/ Hart Green w/ pennission by J Ray
                                             E. Hart Green
                                             Texas Bar No. 08349290
                                             Mitchell A. Toups
                                             Texas Bar No. 20151600
                                             WELLER, GREEN, TOUPS & TERRELL, L.L.P.
                                             Post Office Box 350
                                             Beaumont, Texas 77704-0350
                                             (409) 838-0 I 0 I (Telephone)
                                             (409) 832-8577 (Fax)
                                             hartgr@wgttlaw.com
                                             matoups@wgttlaw.com


Plea in Intervention
Page 24 of25
                                            ATTORNEYS FOR INTERVENORS,
                                            WESTMORELAND DENTAL PA,
                                            WESTMORELAND DENTAL OF GARLAND,
                                            PC, WESTMORELAND DENTAL AND
                                            ORTHODONTICS, PA, AND SCOTTIE H.
                                            NGUYEN, DDS



                               CERTIFICATE OF SERVICE

        I hereby certify that a true and correct copy of the foregoing Plea in Intervention was

served via e-mail and certified mail, return receipt requested on this 15th day of May, 2014 on

the fo llowing:

Eric J.R. Nichols
Beck Redden
515 Congress Avenue, Suite 1750
Austin, Texas, 7870 I
EN IC HOLS@beckredden.com
Attorney for Xerox Defendants

Raymond Winter
Chief, C ivil Medicaid Fraud Division
Assistant Attorney General
Office of the Attorney General
P.O. Box 12548
Austin, Texas 787 11-2548
raymond. winter@texasattomeygeneral.gov
Attorney for the Plaintiff State of Texas




Plea in Intervention
Page 25 of25
                               CAUSE NO. D-t-GV-14-000581

VICTOR M. ZURITA, DDS                               §       IN THE DISTRICT COURT
               INTERVENOR,                          §
                                                    §
vs.                                                 §
                                                    §
THE STATE OF TEXAS,                                 §
               PLAINTIFF,                           §
                                                    §       53rt1 JUDICIAL DISTRICT
vs.                                                 §
                                                    §
XEROX CORPORATION; XEROX                            §
STATE HEALTHCARE, LLC; ACS                          §
STATE HEALTHCARE, LLC, A XEROX                      §
CORPORATION                                         §
              DEFENDANTS.                           §       TRAVIS COUNTY, TEXAS

                                 PLEA IN INTERVENTION

TO THE HONORABLE JUDGE OF SAID COURT:

        NOW COMES, Victor M. Zurita, DDS, hereinafter Intervenor, and file this Plea in

Intervention, and in support hereof, would respectfully show the Court the fo llowing:

                                     I. Parties and Service

1.      Plaintiff, State of Texas, has appeared in this action and may be served with a notice of

this Plea by sending a copy to its attorney, the Attorney General of Texas, Greg Abbott, at P. 0 .

Box 12548, Austin, Texas 78711-2548.

2.      Defendant Xerox Corporation is a corporation organized under the laws of New York has

agreed to accept service with process upon its Attorney in this suit.     Defendant Xerox State

Health Care, LLC, f/k/a ACS State Healthcare, LLC (misnamed by the State of Texas as ACS

State Healthcare, LLC, a Xerox Corporation is a wholly-owned subsidiary of Xerox Corporation

o rganized under the laws of the State of Delaware with Texas offices at 2828 N. Haskell Ave.,

Dallas, Texas 75204, and has agreed to accept service with process upon its Attorney in this suit.



Plea in Intervention
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Defendant Xerox Corporation acquired Defendant ACS in 2010. On information and belief,

ACS State Healthcare, LLC, changed its name to Xerox State Healthcare, LLC, on April 1, 2012.

Defendants are referred to hereinafter as "Xerox Defendants."

3.     Victor M. Z urita. DDS is a licensed Texas dentist, approved Medicaid provider. Victor

M. Zurtita, DDS can be served through his undersigned counsel.

                                    II. Jurisdiction and Venue

4.      This Court has subject-matter jurisdiction in that the amounts sought by lntervenor from

all parties (both Plaintiff and Defendants) are in excess of the minimal jurisdiction limits of this

court. Intervenor affirmatively pleads that this suit is not governed by the expedited-actions

process in TEXAS RULE OF CIVIL PROCEDURE 169 because Intervenor seeks monetary relief over

$100,000.

5.      This Court has jurisdiction over all parties in this petition because:

        a) The State has waived sovereign immunity and is subject to Intervenor's claims;

        b) This Court has jurisdiction over Xerox Defendants because each Defendant does

            business in the State of Texas and committed the unlawful acts alleged in th is petition

            in whole or part in Texas.

6.      Venue is proper in Travis County under TRCP § 15.020 because this suit involves a

" major transaction"; Venue is pennissive under TRCP §15.035(a) because Intervenor asserts

claims for breach of contracL Venue is proper pursuant to TRCP § 15.02 because all or a

substantial part of the events or omissions giving rise to the claim occurred in Travis County.

Many of the unlawful acts committed by the State and Xerox Defendants were committed in

Travis County, including the making of false statements and misrepresentations of material fact.




Plea in Intervention
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                                m. Intervenor's Interest in the Suit
7.     Intervenor has a judicial interest in the matters and controversy in this litigation. The

relationship between Intervenor, the State as the Plaintiff and the Xerox Defendants is a tripartite

arrangement necessitating that, in the interest of judicial economy and j ustice, all claims be

bound and subsumed into one cause of action. Upon information and belief, Intervenor was

initially sued by the State in a qui tam action wherein the State alleged that Intervenor defrauded

the State. The State has elected to pursue its remedies against the Intervenor in an administrative

hearing. Now, the State has sued Xerox in State Court on the same facts, alleging that Xerox has

committed fraud against the State. Intervenor has claims against both the State and Xerox. It is

assumed that Xerox will have claims against the State, and perhaps allege claims against the

Intervenor. All of the different parties' claims are inextricably intertwined, as they relate to

Intervenor's submission of prior authorization requests to Xerox, the handling of those claims by

the Xerox Defendants, the State's handling and oversight of its agent Xerox in Xerox's

performance of its contractual and legal duties, and State's subsequent legal action against the

lntervenors for services approved by Xerox.

                                             IV. Facts

What is Prior Authorization?

8.      Texas Medicaid requires that orthodontic services be independently and objectively

scrutinized before the State consents to treatment and payment. Prior authorization is the

mechanism the State uses to determine the medical necessity of non-emergency orthodontic

items/services prior to delivery of those items/services. Pursuant to Texas Health and Human

Services Commission (hereinafter "HHSC") rules, Texas Medicaid greatly restricts when it will

pay for orthodontic services:



Plea in Intervention
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        Orthodontic services for cosmetic reasons only are not a covered Medicaid
        service. Orthodontic services must be prior authorized and are limited to
        treatment of severe handicapping malocclusion and other related cond itions as
        described a nd measured by the procedures and standards published in the
        [TMPPM 1].

25 Tux. ADMTN. CODE §33.71 (emphasis added). Prior authorization is a statement of assurance

to the orthodontic provider that, absent an interven ing disqualifying factor, the deli very of the

requested orthodontic service has been deemed by Xerox to be med ically necessary, and

therefore approved by the State.

9.      The prior authorizatio n process is straightforward. Texas Medicaid requires that a dental

provider send docwnentation (x-rays, cephalographs, photos, etc.) regarding the patient's

orthodontic condition to Xerox for review. In addition, the orthodontic provider submits his

professional opinion of the patient on a Handicapping Labio-lingual Deviation index (HLD)

score sheet. Xerox knew prov iders relied entfrely on the prior authorization process because

approval was a mandatory prerequisite to providing orthodontic serv ices and being paid . Once

Xerox issued its prior authorization decision, the decision was not appealable by the provider.

10.     The HLD scoring system combines a number of treatable orthodontic conditions into an

index. HLD score sheets use a mix of objective and subjective conditions to determine whether a

Medicaid patient quali fies for orthod ontic serv ices. The fact that the HLD score sheet requires

both objective and subjective findings highl ights the importance of Xerox performing a thorough

prior authorization review.

The History of Orthodontic Prior Authorization.

l l.    The process for reviewing and approving orthodontic prior authorization requests pre-

dates the defendant Xerox's handling of Medicaid claims processing. The National Heritage


1
 "TMPPM" is the Texas Medicaid Provider Procedures Manual, which is issued yearly by the HHSC and provides
valuable guidance to Medicaid providers.

Plea in Intervention
Page4 of25
Insurance Corporation (NHIC) was responsible for reviewing prior authorization requests before

Xerox assumed the contract in January 2004. Starting January I, 2004, Xerox acted as an

independent contractor, and was a contracted agent of the State, under the contract with HHSC.

Xerox was responsible for reviewing each o rthodontic service request, and Xerox was further

charged with the responsibility to grant or den y each prior authorization request per the program

requirements. The result was that Xerox had the final say in determining the medical necessity of

each request for orthodontic services.

12.     Prior to assuming the NHIC contract, and for a period of time after assuming the contract

from NHIC, Xerox received training from NHIC personnel regarding the proper method for

receiving and processing orthodontic prior authorization requests. NH TC personnel explained

how and why the review of each prior authorization submission was important, and walked

Xerox through the process. Despite its training from NHIC, Xerox had no intention of following

the prior authorization system that had been in place for years, nor did Xerox intend to otherwise

meet the prior authorization requirements set out in its contract, the TMPPM and required by

state law.

Xerox rejects its contractual responsibilities.

13.     When Xerox took over the contract in 2004, it immediately abandoned the prior

authorization review process that had been setup by NHIC. Xerox never intended to fulfill its

orthodontic prior authorization responsibilities to HHSC. From 2004 to 2011, Xerox continually

misrepresented that it was acting in compliance with its contractual duties.

14.     It is now known that Xerox failed to adequately staff their prior authorization division

with knowledgeable med ical professionals. Xerox employed only one licensed dentist from 2004

through 2011, which was far short of the manpower necessary to handle the review of tens of



Plea in Intervention
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thousands of 01t hodontic prior authorization req uests every year. Xerox could not reasonably

have expected to handl e such a workload by employing only one dentist.

Xerox potentially commits thousands of violations.

15.     It is believed Xerox allowed "dental specialists"-unlicensed, unquali fied individuals-

to render prior authorization opinions regarding the medical necessity of requested orthodontic

services. The "dental specialist" approvals were not reviewed or ratified by Xerox's licensed

dental director or another qualified dental professional. These actions not only violated Xerox's

contractual obl igations, they may have also violated other Texas law such as the Dental Practice

Act.2 It is believed these unlicensed Xerox "specialists" rendered tens of thousands of prior

authorization approvals/medical opinions in violation of Texas law.

16.      Xerox was paid by the state for each prior authorization decision that was made. It is

believed that Xerox em ployed unlicensed "specialists," rather than licensed Tex.as dentistc;, as a

profit generating measure.

17.      From January 2005 through February 2012, lntervenor submitted prior authorization

requests, as required, to Xerox for a determ ination of medical necessity. Unbeknownst to

Intervenor, Xerox's dental specialists-not the dental director- approved almost all of

lntervenor's requests. Xerox's prior authorizat ion approvals were promises that:

         a) the requested orthodontic services were medically necessary, and/or

         b) the approval had been issued by a licensed dentist, and/or

         c) the approval was an actual and legitimate dental diagnosis, and/or

         d) the requested orthodontic services were allowable under Texas law and as permitted


2
  Texas Occupations Code §251.003 prevents unlicensed individuals from diagnosing conditioDs of the human teeth
and mouth. Section 256.001 state.s that a person may not practice dentistry without a license. Thus, state law requi res
that opinions regarding medical necessity of orthodontic treatment must be made by licensed dentists. Section
264.151 prescribes penalties for certain violations of the Dental Practice Act.

Plea in Intervention
Page 6 of 25
by Medicaid po licy, the TMPPM, and HHSC rules, and/or

       e) a proper, thorough and legal review had been made, and/or

        f) future orthodontic services w ould be properly reimburseable to lntervenor, absent some

intervening disqualification (such as the patient's ineligibility).

18.    Because Xerox was charged with determining medical necessity, and because prior

authoriz ation approval was a mandatory prerequisite to furnishing services, the promises were

material. Intervenor expected perfonnance of these promises. Intervenor relied on Xerox.

Further, Xerox promised that its subsequent payments to Intervenor (after the services had

actually been delivered) were made because the services had been, in fact, properly approved as

medically necessary. Each prior authorizat ion approval represents a separate violation of the law

if Xerox's approval was issued illegally and/or in violation of its contractual obl igations.

Xerox actively concealed its potentially illegal activity.

19.     Xerox withheld the truth regarding its prior authorization program. ln an attempt to

publicly appear consistent with NHIC 's prior authorization process, Xerox continued to require

that dental providers (such as Intervenor) submit all supporting documentation for each HLD

score sheet. It is now believed that, incredibly, Xerox did nothing with that documentation, other

than assure that it had been submitted by the provider. It is believed that Xerox's specialists were

instructed to forward to its dental director only those requests that had scored below the

threshold for orthodontic services (i .e. below 26 points on the HLD score sheet), or had some

prov ider justification attached. As a resu lt, only I 0% of the orthodontic prior authoriz.ation

requests were actually forwarded to Xerox's one licensed dentist              Xerox's actions were

calculated to make Xerox appear compliant with its contract and HHSC policies, while Xerox

knew that its actions were entfrely inconsistent with the letter and spirit of its obligations.



Plea in Intervention
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Effectively, then, Xerox's actions not only damaged the Medicaid program directly by approving

services without detennining their medical necessity, but Xerox's deception also exacerbated the

problem by failing to give providers guidance regarding the proper standard for medical

necessity, thus causing these providers substantial damages.

20.       For the past ten years, Xerox has continued to publicly represent to the world that it was

fulfi lling its contractual and legal responsibi lities. Based on Xerox's representations that it was

fulfilling its duties to the State, Xerox had its contract with HHSC repeatedly renewed from 2004

through tbe present. Each year that Xerox had its contract renewed, it represented that it would

fulfill its contractual obligations and abide by Texas law requiring that decisions about medical

necessity be rendered only by licensed dentists. Xerox made those representations knowing that

it had not done so in the past, and had no intention of changing its procedures to do so in the

future.

The Frew decision magnifies Xerox 's acts.

21.       In September 2007, after fifteen years of litigation on the subject, Texas was ordered to

implement a corrective action plan that increased the Medicaid reimbursement rates to all dental

providers. That plan was required pursuant to the Frew case3, which was a 1993 class-action

lawsuit against the HHSC alleging that Texas' Medicaid reimbursement rates were so low that

they prevented indigent children from receiving timely, comprehensive health care.

22.       In response to Frew 's corrective action plan, the 2007 Texas Legislature allocated $707

million ($1.8 billion in state and federal funds combined) to increase med ical and dental



3
  Frew v. Gilbert, I 09 F. Supp. 2d 579 (E.D. Tex. 2000) vacated sub nom. Frazar v. Gilbert, 300 F.3d 530 (5th Cir.
2002) rev'd sub nom. Frew ex rel. Frew v. Hawkins, 540 U.S. 431 , 124 S. Ct. 899, 157 L. Ed. 2d 855 (2004) and
ajfd in parl, appeal dismissed in part sub nom. Frazar v. llawki11s, 316 F.3d 444 (5th Cir. 2004); Frew v. Hawkins,
401 F. Supp. 2d 619 (E.D. Tex. 2005) affd sub nom. Frazar v. Ladd, 457 F.3d 432 (5th Cir. 2006); Hawkins v.
frew, 549 U.S. 1118, 127 S. a. 1039, 166 L. Ed. 2d 7 14 (2007).


Plea in Intervention
Page 8 of25
reimbursement rates. The increase in dental reimbursement rates was intended to entice dentists

to become Medicaid providers. It worked. The state raised payment rates for dental services, and,

as a result, the number of dentists participating in Medicaid increased from 45.4% in 2007 to

63.4% in 2010. As expected indeed, as intended spending on Texas's dental services increased

dramatically.

23.     Although the number of prior approval requests increased by 240% between 2007 and

20 I0, Xerox continued to employ only one dentist. That dentist was neither tasked with nor

responsible for supervising the clerical specialists that were issuing the approvals.

24.     By 2010, orthodontic spending under Texas' Medicaid program had skyrocketed. Xerox

was the sole entity responsible fo r overseeing thi s increase, because it was the sole gatekeeper

for the approval and payment of orthodontic services. Although the Texas Legislature had

increased fu nding to attract dentists into the Medicaid program, all of the budgeted funds were

required to be spent only on medically necessary services.

The Office of Inspector General seeks recovery from Medicaid providers.

25.     In early 2011, a series of news stories began highlighting the large amount of money

being spent on orthodontics in Texas. ln July 2011, the Federal government notified Texas of its

intent to audit w hether Texas' prior authorization process was ensuring that only medically

necessary orthodontic cases were being approved and paid. With the prospect of a federal

clawback action looming against Texas because of Xerox's prior authorization failures, the

Texas O ffice of Inspector General (hereinafter "State") took a drastic step. Beginning in 20 I l,

the State generated a list of the top Medicaid orthodontic billers and placed them on " payment

hold." lntervenor was one of those providers.

26.     Given Intervenor's proximity to some of the state's poorest chi ldren, and the mandates of



Plea in Intervention
Page 9 of25
the Frew decision, Intervenor served a large Medicaid patient population. Because it served a

large Medicaid population, it submitted a large number of prior authorization requests to Xerox

from 2004 through 20 I I .

27.     Intervenor did not know that Xerox was fa iling to perform a true and accurate review for

medical necessity. lntervenor relied on Xerox's prior authorization approvals to confirm that

dentists' analysis was proper and consistent with Medicaid standards and requirements.

28.     Again unbeknownst to Intervenor, State audits in 2008 and 2012 concluded that most, if

not almost all, of the prior authorization requests for patients with HLD scores of 26 or greater

(indicating medical necessity) bad not been actually "evaluated" at all by Xerox. These State

audits made the Federal government's pending audit especially dangerous to Texas, because the

2008 and 2012 audits were admissions that Xerox had been approving and paying claims that

may not have met the federal standards for prior authorization. Thus the State, through the

Attorney General, concluded that a true finding of medical necessity had in reality not occurred.

The Attorney General claimed that billing for services that are not necessary is fraud, despite

Xerox's prior authorization approvals.

29.     It is now believed that rather than prosecute Xerox for its failure to properly evaluate

dentists' prior authorization requests, the State and the Texas Attorney General protected Xerox.

This protection included the State failing to allow TMHP to hire additional medically licensed

staff, and in 2008-2009 telling TMHP to continue its prior authorization practices. Although the

Attorney General took immediate action against the providers, the Attorney General refused to

hold Xerox accountable for its orthodontic "approvals," its repeated contractual failures, or its

violation of State law. Instead, the Attorney General made fraud allegations against each of the

top 25 dental providers, including Intervenor, which has caused more injury and damages to



Plea in Intervention
Page 10 of25
Intervenor. Stated differently, Xerox issued its approvals through a process that gutted the State's

belief in the accuracy of Xerox's decis ion, and the Texas Attorney General punished the

providers instead of Xerox.

30.     Because the acts/omissions of Xerox so undermined the process, the State eventually

instituted a " payment hold" against intervenor. A payment hold temporarily freezes future

Medicaid payments to a provider, despite the provider's ongoing participation in the Medicaid

program. The payment hold against Intervenor was issued pursuant to what the State called a

"credible allegation of fraud" regardi ng Intervenor's orthodontic prior authorization requests.

The State placed a I 00% payment hold against Intervenor's orthodontic billings.

31.     At the time the Attorney General began prosecuting Intervenor and similarly situated

Medicaid providers, it knew Xerox, not Intervenor, had the sole authority and responsibility to

authorize orthodontic services and payments. The Attorney General knew that the State's audits

of Xerox in 2008 and 20 l 2 had concluded that Xerox was violating its contract with the State,

violating its own State-approved pol icies and procedures, and violating State law. Nevertheless,

the Attorney General continued to only prosecute dental providers like the Intervenor; the

Attorney General refused to hold Xerox responsible. In fact, in one shameless and brazen

demonstration of State 's unwavering protection of Xerox, the Deputy Director of Texas' Office

of the Inspector Genera! testified in a hearing that Xerox's acts and omissions were so egregious

they were outside the course and scope of Xerox' s agency with State.4 Upon in fonnation and

belief, the State and the Attorney General protected Xerox for over 6 years fearing that revealing

the State's culpability would subject the State to a federal clawback for hundreds of millions of


4
 Incredibly, that testimony came in an administrative proceeding in which the State was seeking $8 million from a
dental provider for following Xerox's instructions to provide braces to the provider's patients. The idea that !he
State could not hold Xerox responsible for its contractual obligations because Xerox had done such a poor job that it
was acting outside of its contract is a novel and imaginative reason not to prosecute Xerox.

Plea in Intervention
Page 11 of25
dollars. Instead, the State and the Attorney General pointed at the dental providers.

32.     Ultimately, the evidence of Xerox's failures, and the State's refusal to correct Xerox for

over 6 years, became too much to hide. Three months after some providers filed suit against

Xerox, and following a series of news stories questioning why Xerox had not suffered for its

failures, the Attorney General reversed course. On May 9, 2014, the State, through the Texas

Attorney General, fil ed this lawsuit against Xerox for fraud, basically mirroring the suit filed

approximately I 00 days earlier by similarly situated providers. The State's claims in this fraud

lawsuit include admissions that the State knew as early as 2006 that Xerox's actions were

improper.

33.     As a result of the payment hold, Intervenor was required to make significant financial

concessions and changes to its business. Intervenor also engaged legal counsel to defend itself

from the State 's claim s, at a significant expense that continues today.

34.     The State's allegations against Intervenor are rooted in two assumptions. First, the State

assumes Intervenor' s prior authorization requests were not properly velted by Xerox; that is,

Xerox approved Intervenor's requests without knowing whether approval was actually proper.

Because Xerox is not a party to Intervenor's administrative case, Intervenor is prevented from

detennining whether Xerox       did~   in fact, perform a proper review of Intervenor's prior

authorization requests. By intervening in this lawsuit, Intervenor seeks to address that question,

and finally detennine whether Xerox reviewed Intervenor's requests as required by its contract

and the law.

35.     Regarding the State's second assumption, the State alleges some of Intervenor's requests

were approved when, in fact, they should have been denied. Intervenor denied that assertion in

the administrative case, and Intervenor continues to deny that claim here. All services provided



Plea in Intervention
Page 12 of25
to Intervenor's pat ients were actually medically necessary, regardless of what Xerox decided and

in any event under Medicaid guidelines once the authorization was approved, Intervenor was

required to provide the services.

36.     The State continues to aggressively fight any allegation or affirmative defense that could

result in Xerox being held accountable for its part in these HLD scoring cases, despite the State's

contentions in the District Court case to the contrary. Damages continue to accrue.

                                       V. Causes of Action

A. Intervenor's Claims Against Xerox

      Common Law Fraud (Fraudulent Misrepresentation and Fraudulent Inducement)

37.     Intervenor re-alleges and incorporates the above facts and allegations as if fully set out

herei n. Xerox's prior authorization approvals were false representations made to Intervenor. It is

believed Xerox knowingly issued these prior authorizations to Intervenor because Xerox knew

that it was approving requests without a proper medical review, and/or because it approved the

prior authorization requests without any knowledge of their truth. It is believed Xerox intended

for Intervenor to rely on the approvals as a prerequisite for provid ing the requested services.

Approval was material because it was a mandatory prerequisite for payment. Intervenor actually

and justifiably relied on Xerox's fraudulent approvals.

38.     Xerox's approvals induced Intervenor to continue to grade subsequent HLD requests in

the same or sim ilar manner, and led Intervenor to believe that their requests were consistent with

Medicaid standards and requirements.

39.     Xerox's fraudu lent approvals caused injury to Intervenor. As a result of Xerox's actions,

Intervenor submitted requests for payment and Xerox actually paid for those services, Intervenor

was placed on payment hold, Intervenor is forced to defend itself in an administrative payment



Pica in Intervention
Page 13 of25
hold hearing, and Intervenor is facing administrative claims by HHSC for repayment (including

claims for treble damages and attorney fees). Intervenor's reputation and business have suffered

severe injury. Intervenor seeks recovery of actual and exemplary damages, interest, court costs,

and attorney fees.

                          Breach of the Xerox-State of Texas Contract

40.      Intervenor re-alleges and incorporates the above facts and allegations as if fully set out

herein. In the alternative, Xerox's actions constitute a breach of Xerox's contract with the State

for the benefit of Intervenor. Xerox's contract with the state required that it conduct a proper,

thorough and legal review of prior authorization requests for the purpose of determining medical

necessity. To that end, Xerox should have employed a licensed dentist.

41.      Xerox was an agent of the State of Texas engaged specifically for the purpose of

determining medical necessity. The third party beneficiaries of that Xerox-State of Texas

contract were Medicaid patients and Intervenor. The patients were entitled to receive orthodontic

services that were medically necessary. Intervenor was responsible for actually delivering the

orthodontic services that Xerox had deemed medically necessary. Thus, Intervenor was a third

party beneficiary that relied on Xerox's approvals.

42.      Xerox breached its contract by, inter alia, failing to provide qualified staff; possibly

vio lating Texas law; permitting non-dentists to make determinations of medical necessity; and

issuing medical opinions without conducting a reasonable and prudent examination of evidence.

The breaches were material, and recurred across many different Medicaid patients and for many

years.

43.      Xerox's actions proximately caused Intervenor's injury. Intervenor's injuries were

caused-in-fact by Xerox's actions, and they were foreseeable. Because Xerox's prior



Plea in Intervention
Page 14 of25
authorization was a necessary prerequisite to providing services, Intervenor relied entirely on

Xerox's determinations regarding medical necessity; thus, Xerox's actions were the direct factual

cause of Intervenor's injuries. Xerox's actions were foreseeable in that a person of ordinary

inteUigence should have anticipated that issuing a decision w ithout actually reviewing or

considering the evidence (x-rays, photos, models, etc.) would eviscerate the credibility and

rel iability of the decision. Once the State assumed that Xerox's approvals were not trustworthy,

it was foreseeable that the State would demand repayment, and/or wou ld require Intervenor to

independently do Xerox's job after the fact by proving that payment was proper because the

services were medically necessary and reimbursable under Texas Medicaid law.

44.     Intervenor suffered and continues to suffer significant damage. Intervenor seeks damages

that would have g iven the Intervenor the benefit of the bargain by putting them in as good a

position as they would have been in if the contract had been performed.         Intervenor seeks

reliance interest damages to restore the expenditures Intervenor made in reliance on Xerox's

contract with the state and the approvals that Xerox made under that contract. Intervenor also

seeks damages for its restitution interest to restore money sought by the Office of the Inspector

General from Intervenor. Such damages would put the Intervenor in as good a position as it

would have been in if the contract had been properly fulfilled. ln addition, Intervenor seeks

liquidated damages as set out in the Xerox-State of Texas contract. Intervenor has engaged legal

counsel to defend itself from the State's charges, and those legal expenses continue today.

Intervenor has incurred benefit of the bargain damages, out-of-pocket damages, lost profits, lost

future profits, loss of credit, and loss of goodwill.   Intervenor seeks recovery of actual and

exemplary damages, interest, court costs, and attorney fees.




Plea in lntervention
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                          Breach of Contract (Promissory Estoppel)

45.     Intervenor re-alleges and incorporates the above facts and allegations as if fully set out

herein. In the alternative, Xerox's actions constitute promissory estoppel.

46.     Xerox's prior authorizations constitute promises to Intervenor in numerous ways.

Because prior authorization was a prerequisite to furnishing services, and because Xerox was the

entity charged with discharging prior authorization duties, Intervenor reasonably, substantially,

and foreseeably relied on Xerox's promises.

47.     Intervenor suffered and continues to suffer significant damage. intervenor suffered

reliance damages by investing time, labor, equipment, and orthodontic appliances in each

Medicaid patient that Xerox approved. lntervenor has engaged legal counsel lo defend itself from

the State's charges, and those legal expenses continue today. Intervenor has been required to do

Xerox's job after the fact-namely, demonstrate that the services were medically necessary and

properly reimbursable under Texas Medicaid law. Intervenor has incurred benefit of the bargain

damages, out-of-pocket damages, lost profits, lost future profit s, loss of credit, and loss of

goodwill. All of these damages were directly and/or proximately caused by Xerox's promises.

Intervenor seeks recovery of actual and exemplary damages, interest, court costs, and attorney

fees.

                            Negligent Hiring/Negligent Supervision

48.     Intervenor re-alleges and incorporates the above facts and allegations as if fully set out

herein. Xerox's actions constitute negl igent hiring and/or negJigent supervision. Xerox was

required to render medical diagnoses. To that end, Xerox was required by law to employ a

licensed dentist to render a diagnosis regarding medical necessity. Xerox was also required by

law to properly supervise its employees to make sure diagnoses were made only by licensed



Plea in Intervention
Page 16of25
dentists.

49.     Xerox knew or shou ld have known that decisions regarding medical necessity can only

be rendered by licensed personnel. Texas Occupations Code section 251.003 defines the practice

of dentistry to include a diagnosis of the human mouth and/or teeth; section 256.001 states that a

person may not practice dentistry without a license; section 264.151 makes it a third-degree

felony to practice dentistry without a license.

SO.     Xerox's actions proximately caused Intervenor's injury. Intervenor's injuries were

caused-in-fact by Xerox's actions, and they were foreseeable. Because Xerox's prior

authorization was a necessary prerequisite to providing services, Intervenor relied entirely on

Xerox's determinations regarding medical necessity; thus, Xerox's actions were the direct factual

cause of Intervenor's injuries. Xerox's actions were foreseeable in that any person of ordinary

intelligence should have anticipated that paying Intervenor for services that have not properly

been determined to be medically necessity would precipitate a demand for repayment, and/or

would require Intervenor to independently do Xerox's job after the fact by proving that payment

was proper because those services were medically necessary and were reimbursable under Texas

Medicaid law.

5 1.    lntervenor suffered and continues to suffer significant damage. intervenor suffered

reliance damages by investing the cost of services for each Medicaid patient that Xerox

approved. Intervenor has engaged legal counsel to defend itself from the State's charges, and

those legal expenses continue today. Intervenor suffered and continues to suffer significant

damage to its reputation, business, referral base, earnings and earning power. lntervenor has

suffered inconvenience and loss of enjoyment of life in that he has had to dedicate significant

mental and personal capital to doing Xerox's job. intervenor has suffered exemplary damages



Plea in Intervention
Page 17 of25
because Xerox's conduct was grossly negligent, outrageous and malicious, and such conduct

should be penalized so that it is deterred in the future. Intervenor seeks recovery of actual and

exemplary damages, interest, court costs, and attorney fees.

                                           Negligence

52.     Intervenor re-alleges and incorporates the above facts and allegations as if fully set out

herein. Xerox's actions constitute negligence and gross negligence. Xerox was required to render

medical diagnoses. To that end, Xerox had a duty to employ a licensed dentist to render a

diagnosis supporting o r denying medical necessity. Xerox bad a duty to assure that tbe personnel

had appropriate education, training and experience to render such a finding. Xerox had a duty to

review the supporting prior authorization documentation (such as x-rays and photos) to

determine whether the requested services were medically necessary.

53.     Xerox's actions breached the standard of care because Xerox: fai led to provide prior

authorization staff that were properly licensed, qualified and experienced dental professionals;

violated the law, specifically the Dental Practice Act, by perm itting non-dentists to make

determinations of medical necessity, and; issued medical opinions (prior authorizations) without

conducting a reasonable and prudent examination of evidence.

54.     Xerox 's actions proximately caused [ntervenor's injury. Intervenor's injuries were

caused-in-fact by Xerox's actions, and they were foreseeable.            Because Xerox 's prior

authorization was a necessary prerequisite to providing services, Intervenor relied entirely on

Xerox's determinations regarding medical necess ity; thus, Xerox's actions were the direct factual

cause of Intervenor's injuries. Xerox 's actions were foreseeable in that any person of ordinary

intelligence should have anticipated that paying Intervenor for services that have not properly

been determined to be medically necessity would precipitate a demand for repayment, and/or



Plea in Intervention
Page 18 of25
would require Intervenor to independently do Xerox 's job after the fact.

55.     Intervenor suffered and continues to suffer sign ificant damage to its reputation, business,

referral base, earnings and earning power. Intervenor has engaged legal counsel to defend itself

from the State's charges, and those legal expenses continue today. Victor M. Zurita, DDS has

suffered inconvenience and loss of enjoyment of life in that he has had to dedicate significant

mental and personal capital to doing Xerox 's job. Intervenor has suffered exemplary damages

because Xerox's conduct is grossly negligent, outrageous and malicious, and such conduct

shou ld be penalized so that it is deterred in the future. Intervenor seeks recovery of actual and

exemplary damages, interest, court costs, and attorney fees.

                                  Negligent Misrepresentation

56.     Intervenor re-alleges and incorporates the above facts and allegations as if fully set out

herein. Xerox 's actions constitute negligent misrepresentation. Xerox's actions constitute

misrepresentations to Intervenor in numerous ways. Because, inter alia, prior authorization

approval was a prerequisite to fam ishing serv ices, these representations guided and controlled

Intervenor's responses. intervenor justifiably relied on these representations. Further, Xerox

represented that its prior authorization approvals were dispositive of medical necessity;

Intervenor expected that, once approved, no further inquiry into the medical necessity of the

services would be required. Further, Xerox represented that its subsequent payments to

Intervenor (after the services had actually been delivered) were made because services had been,

in fact, properly approved as medically necessary.

57.     Xerox did not exercise reasonab le care or competence in making its determinations and

representations. Xerox knew or should have known that its representations were false.

58.     Because prior authorization was a prerequisite to furnishing services, and because Xerox



Plea in Intervention
Page 19 of25
was the entity charged with discharging prior authorization duties, Intervenor reasonably,

substantially, foreseeab ly, and justifiably relied on Xerox's representations.

59.       Intervenor suffered and continues to suffer significant damage. lntervenor suffered

reliance damages by investing time, labor, equipment, and orthodontic appliances in each

Medicaid patient that Xerox approved. Intervenor has engaged legal counsel to defend itself from

the State's charges, and those legal expenses continue today. Intervenor has been required to do

Xerox's job after the fact. Intervenor has incurred benefit of the bargain damages, out-of-pocket

damages, lost profits, loss of credit, and loss of goodwi ll. All of these damages were directly

and/or proximately cause by Xerox's negligent misrepresentations. Intervenor seeks recovery o f

actual and exemplary damages, interest, court costs, and attorney fees.

                       Gross Negligence I Misapplication of Fiduciary Property

60.       Intervenor re-alleges and incorporates the above facts and allegations as if fully set out

herein. Plaintiffs plead Xerox committed gross negligence and/or the misapplication of fiduciary

property which would entitle Intervenors to unlimited punitive damages.

B. lntervenors' Claims Against T he State of Texas

                                   Waiver of Sovereign Immunity

6 1.      Intervenor re-alleges and incorporates the above facts and allegalions as if fully set out

herein.    For a number of reasons, the State has waived sovereign immunity for claims by

lntervenor, including the facts that the State brought, threatened and/or has taken civil and/or

administrative action against lntervenors, and because the State has filed suit against Xerox.

                                    Conspiracy/Joint E nterprise

62.       Intervenor re-alleges and incorporates the above facts and allegations as if fully set out

herein. In the alternative, former Deputy Inspector General Jack Stick has stated publicly that



Plea in Intervention
Page 20 of25
acts and omissions of Xerox were so egregious as to be outside the course of scope of Xerox's

agency relationship with the State. Assuming same to be true, then the State conspired with

Xerox to breach the contract or allow the breach to continue, conspired to withhold funds from

Intervenor but not Xerox, and conspired to falsely accuse Intervenor of fraud/crime.

63.    The State conspired with Xerox to allow Xerox to violate its various contractual duties.

The State pennitted Xerox to process as many prior authorizations as possible without the

required clinical dental review and without using medically knowledgeable personnel. The State

conspired with Xerox to allow Xerox to violate State and Federal law. The State and Xerox

created a scheme to rubber stamp and/or allow no legitimate review of prior authorizations

submitted by the dentists. The conspiracy was committed with the intent to shift blame from the

State and its agent, improperly blame the Intervenors, and enrich the State and Xerox. By

recouping money from providers that were not actually to blame, the State and Xerox hoped to

limit their own liability in the event of a Federal clawback action, and/or respond to unflattering

news reports of Texas' payments for Medicaid braces. This agreement and ensuing acts of the

party to blame the dentist providers for their own improper acts and omissions is a proximate

cause of the injury to lntervenors.

                           Not Liable for Illegal Acts of Third Party

64.     Intervenor re-alleges and incorporates the above facts and allegations as if fully set out

herein. As alleged by the State in Section VUJ paragraph 46 of the State's petition, Xerox has

committed or is about to commit unlawful acts. The illegal acts of Xerox in failing to provide

proper prior authorization review in rubber stamping the doctors prior authorization requests is

not the fault of the doctors. The doctors are not responsible for or liable to the State for the




Plea in Intervention
Page 21 of25
illegal acts of a third party for which the doctors had no control; the State should not withhold

money from the Tntervenors because of the illegal acts of Xerox complained about by the State.

                                       Breach of Contract

65.     Intervenor re-alleges and incorporates the above facts and allegations as if fully set out

herein. lnterven.ors are a direct or third party beneficiary of the contract with Xerox and the State

of Texas. The State of Texas has breached terms of the contract by failing to supervise Xerox

and/or reviewing the work product of Xerox. This breach by State, which allowed non-

performance by Xerox, has created the pretext by which the State affirmatively sued Intervenors

for repayment. To the extent that the State has withheld money and/or made claims for damages

against lntervenors based on the contracts in question, the State has waived immunity and is

liable up to those amounts plead.

                                            Conversion

66.     Intervenor re-alleges and incorporates the above facts and allegations as if fully set out

herein. State and Federal law required intervenor to request prior authorization for orthodontic

services. Those prior authorization requests were approved by Xerox, which required Intervenors

to provide the services. The State has unilaterally made a decision to that, based on the acts and

omissions of Xerox, the Intervenor should not have been paid; the State then placed Intervenor

on a payment hold. To the extent that Intervenor has provided services for which Intervenor

should be paid, and money which has been earmarked by the State for that payment but withheld,

the State has converted the funds. In addition, the States' acts/om issions are a violation of the

Texas Constitution Section 9 in that the acts/omissions constitute a seizure of money held under

the pretext of a payment hold.




Plea in Intervention
Page 22 of25
                                            VI. Damages

67.     lntervenors have suffered and are entitled to recover damages including, but not limited

to loss of use of funds sequestered by the State, actual damages, damage to reputation, damage to

business, damage to earnings and earning power, inconvenience, loss of enjoyment of life, fees

and expenses, interest, punitive/exemplary damages, and attorney fees.

                                           VII. Conclusion

68.     Xerox's actions have harmed Intervenor because Xerox committed fraud, negligent

hiring, negligence, and gross negligence. Xerox's actions have subjected Intervenor to

unnecessary civil and administrative legal action, and that, in tum has caused additional inj ury.

Xerox's actions have required Intervenor to perform Xerox 's job after-the-fact, by proving to the

State that the orthodontic services rendered were medically necessary and appropriate for

reimbursement. The State's actions have harmed Intervenor because the state's conspiracy to

improperly blame the dentists has resulted in meritless legal claims against the Intervenor and

conversion of the Intervenor's property.

                                        VID. Jury Demand

69.     Intervenor respectfully requests a trial by jury.

                                    IX. Request for Disclosure

70.     Under Texas Rule of Civil Procedure 194, Lntervenor requests that Plaintiff the State

disclose, within 50 days of the service of this request, the information or material described in

Rule 194.2.



71.     Wherefore, premises considered, Intervenor Victor M. Zurita, DDS pray that upon final

hearing of the cause, judgment be entered jointly and severally against the Plainti ff the State of



Plea in Intervention
Page 23 of25
Texas and Defendant Xerox State Healthcare, LLC for damages, together with pre-judgment and

post judgment interest at the legal rate, costs of court, and other such relief to which the

Intervenor may be entitled.




                                          J son Ray
                                          Texas Bar No. 240 05
                                          RIGGS, ALESHIRE & RAY, P.C.
                                          700 Lavaca, Suite 920
                                          Austin, Texas 7870 I
                                          (512) 457-9806 (Telephone)
                                          (512) 457-9866 (Fax)
                                          jray@r-alaw.com


                                             /s/ Hart Green w/ permission by J Ray
                                          E. Hart Green
                                          Texas Bar No. 08349290
                                          Mitchell A. Toups
                                          Texas Bar No. 2015 l 600
                                          WELLER, GREEN, TOUPS & TERRELL, L.L.P.
                                          Post Office Box 350
                                          Beaumont, Texas 77704-0350
                                          (409) 838-0 l 0 l (Telephone)
                                          (409) 832-8577 (Fax)
                                          hartgr@wgttlaw.com
                                          matoups@wgttlaw.com
                                          ATTORNEYS FOR INTERVENOR
                                          VICTOR M. ZURITA, DDS




Plea in Intervention
Page 24 of25
                               CERTIFICATE OF SERVICE

        I hereby certify that a true and correct copy of the foregoing Plea in Intervention was

served via e-mail and certified mail, return receipt requested on this 15th day of May, 2014 on

the following:

Eric J.R. Nichols
Beck Redden
515 Congress A venue, Suite 1750
Austin, Texas, 7870 I
ENICHOLS@beckredden.com
Attorney for Xerox Defendants

Raymond Winter
Chief, Civil Medicaid Fraud Division
Assistant Attorney General
Office of the Attorney General
P.O. Box 12548
Austin, Texas 78711-2548
raymond.winter@texasattorneygeneral.gov
Attorney for the Plaintiff State of Texas




Plea in Intervention
Page 25 of25
                          Tab E
Xerox’s Original Answer to Defendants’ Original Third Party Petition
                                                                         2/9/2015 8:11:28 AM
                                                                                            Velva L. Price
                                                                                           District Clerk
                               CAUSE NO. D-l-GN-1 4-005380                                 Travis County
                                                                                        D-1-GN-14-005380
THE STATE OF TEXAS,                              §             INTHEDISTRJCTCOURTOF
                                                 §
              Plaintiff,                         §
v.                                               §
                                                 §
DR. BEHZAD NAZARI, D.D.S. D/B/A                  §
ANTOINE DENTAL CENTER, et. al.                   §
                                                 §                53RD JUDIC IAL DISTRICT
              Defendants/Third Party             §
              Plaintiffs,                        §
                                                 §
v.                                               §
                                                 §
XEROX CORPORATION, et al.                        §
                                                 §                TRAVIS COUNTY, TEXAS
              Third-Party Defendants.            §



                       XEROX'S ORIGINAL ANSWER TO
                 DEFENDANTS' ORIGINAL THIRD PARTY PETITION

TO THE HONORABLE JUDGE OF THIS COURT:

       COME NOW Xerox Corporation, and Xerox State Healthcare, LLC, formerly known as

ACS State Healthcare, LLC (collectively the "Xerox Parties") and file this original answer,

pursuant to Rule 92 of the Texas Rules of Civil Procedure, in order to respond to the allegations

and causes of action asserted in the Original Answer and Third Party Petition filed by

Defendants/Third Party Plaintiffs Dr. Behzad Nazari, D.D.S. d/b/a Antoine Dental Center, Dr.

Behzad Nazari, Harlingen Family Dentistry, PC a/k/a Practical Business Solutions, Series LLC,

Juan D. Villarreal D.D.S., Series PLLC d/b/a/ Harlingen Family Dentistry Group, Dr. Juan

Villarreal, Dr. Richard F. Herrscher, D.D.S., M.S.D., P.C., Or. Richard F. Herrscher, M&M

Orthodontics, PA, Dr. Scott Malone, Dr. Diana Malone, Michelle Smith, National Orthodontix,

Mgmt., PLLC, Dr. John Vondrak, RGV Smiles by Rocky Salinas, D.D.S. PA, and Dr. Rocky

Salinas (collectively "Defendants/Third Party Plaintiffs") and any subsequenrly amended or
supplemented third party petition . In support thereof, the Xerox Parties would respectfully show

the Court as fo llows:

                                      GENERAL DENIAL

       Subject to stipulations or admissions that may hereafter be made, the Xerox Parties enter

their general denial, pursuant to Rule 92 of the Texas Rules of Civil Procedure, thereby denying

each and every, all and singular, of the material allegations made by Defendants/Third Party

Plaintiffs, and the Xerox Parties request that each of Defendants/Third Party Plaintiffs be

required to prove all charges and allegations by the applicable standard of proof required by the

laws of the State of Texas.

                 AMENDMENT AND SUPPLEMENTATION OF ANSWER

       The Xerox Parties reserve their rights to amend and/or supplement their answer pursuant

to the Texas Rules of Civil Procedure and orders of the Court.

                                            PRAYER

        WHEREFORE, PREMISES CONSIDERED, The Xerox Parties respectfully request that

this Court. upon fu ll and final hearing of this matter, eater judgment that Defendants!Third Party

Plaintiffs take nothing against the Xerox Parties by way of their claims in this action and for such

other relief, both special and general, in law and in equity, to which the Xerox Parties may show

themselves to be justly entitled.




                                                 2
Respectfully submitted,

G IBSON , DUNN   & CRUTCHER LLP

By:   Isl Robert C. Walters
           Robert C. Walters
           State Bar No. 20820300
           E-mail: RWalters@gibsondunn.com
2100 McKinney Avenue, Suite 1100
Dallas, Texas 75201
Tel: 214-698-3100
Fax: 214-571-2900

BECK IREDDEN     LLP


By:     Isl Eric JR. Nichols
            Eric J.R. Nichols
            State Bar No. 14994500
            E-mail: enichols@beckredden.com
            Christopher R. Cowan
            State Bar No. 24084975
            E-mail: ccowan@beckredden.com
     515 Congress Avenue, Suite 1750
     Austin, Texas 7870 l
     Tel: 512-708-1000
     Fax: 512-708-1002
             W. Curt Webb
            State Bar No. 21035900
             E-mail: cwebb@beckredden.com
             Constance H. Pfeiffer
             E-mail: cpfeiffer@beckredden.com
             State Bar No. 24046627
     1221 McKinney Street, Suite 4500
     Houston, Texas 770 l 0
     Tel: 713-951-3700
     Fax: 713-951-3720

    ATTORNEYS FOR
    XEROX CORPORATlON, XEROX STATE
    HEALTHCARE, LLC, F/K/A ACS STATE
    HEALTHCARE, LLC




3
                                CERTIFICATE OF SERVICE

       I hereby certify that on this 9th day of February, 2015, I caused a copy of the foregoing to
be served to the followi ng counsel via e-mail:


               Counsel for PlaintiffState of Texas:

               Raymond Winter
               Chief, Civil Medicaid Fraud Division
               Office of the Attorney General
               P.O. Box 12548
               Austin, Texas 78711-2548
               E-mail: raymond.winter@texasattorneygeneral.gov

               Reyno lds Brissenden
               Assistant Attorney General
               Office of the Attorney General
               P.O. Box 12548
               Austin, Texas 7871 1~2548
               Email: reynolds.brissenden@texasattomeygeneral.gov


               Cou11sel for Defendantsnhird-Party Plaintiffe:

               Jason Ray
               R iggs, Aleshire & Ray, P.C.
               700 Lavaca, Suite 920
               Austin, Texas 7870 l
               E-mail: jray@r-alaw.com

               E. Hart Green
               Weller, Green, Toups & Terrell, L.L.P.
               Post Office Box 350
               Beaumont, Texas 77704-0350
               E-mail: harlgr@wgttlaw.com



                                                        ls/Christopher R. Cowan
                                                     Christopher R. Cowan




                                                 4
                  Tab F
 Xerox Corporation and Xerox State Healthcare, LLC
f/k/a ACS State Healthcare, LLC’s Mandamus Petition
                                                                                          ACCEPTED
                                                                                      03-15-00401-CV
                                                                                              5900102
                                                                           THIRD COURT OF APPEALS
                                                                                      AUSTIN, TEXAS
                                                                                  7/1/2015 1:29:01 PM

                          No. __________________
                                                                                    JEFFREY D. KYLE
                                                                                               CLERK



                     IN THE THIRD COURT OF APPEALS
                             AUSTIN, TEXAS

 IN RE XEROX CORPORATION AND XEROX STATE HEALTHCARE, LLC
              F/K/A ACS STATE HEALTHCARE, LLC,
                                   Relators.

               Original Proceeding from the 53rd District Court,
       Travis County, Texas, Trial Court Cause No. D-1-GV-14-000581
                The Honorable Stephen Yelenosky, Presiding

                PETITION FOR WRIT OF MANDAMUS
    BECK REDDEN LLP                       BECK REDDEN LLP
        Eric J.R. Nichols                     Constance H. Pfeiffer
        State Bar No. 14994900                State Bar No. 24046627
        enichols@beckredden.com               cpfeiffer@beckredden.com
        Gretchen Sween                    1221 McKinney St., Ste. 4500
        State Bar No. 24041996            Houston, TX 77010
        gsween@beckredden.com             Tel: 713.951.3700
        Christopher R. Cowan              Fax: 713.951.3720
        State Bar No. 24084975
        ccowan@beckredden.com
    515 Congress Ave., Ste. 1900
    Austin, TX 78701
    Tel: 512.708.1000
    Fax: 512.708.1002

    GIBSON, DUNN & CRUTCHER LLP           KELLY HART & HALLMAN LLP
        Robert C. Walters                     C. Andrew Weber
        State Bar No. 20820300                State Bar No. 00797641
        rwalters@gibsondunn.com               andrew.weber@kellyhart.com
    2100 McKinney Ave., Ste. 1100             301 Congress, Ste. 2000
    Dallas, TX 75201                      Austin, TX 78701
    Tel: 214.698.3100                     Tel: 512.495.6451
    Fax: 214.571.2900                     Fax: 512.495.6930
                            COUNSEL FOR RELATORS

Oral Argument Requested
                   IDENTITY OF PARTIES AND COUNSEL

Relators (Defendants in the Trial Court):

     Xerox Corporation;
     Xerox State Healthcare, LLC f/k/a ACS State Healthcare, LLC

Counsel for Relators:

     Eric J.R. Nichols (SBN 14994500)
     enichols@beckredden.com
     Gretchen Sween (SBN 24041996)
     gsween@beckredden.com
     Christopher R. Cowan (SBN 24084975)
     ccowan@beckredden.com
     BECK REDDEN LLP
     515 Congress Avenue, Suite 1900
     Austin, TX 78701

     Constance H. Pfeiffer (SBN 24046627)
     cpfeiffer@beckredden.com
     BECK REDDEN LLP
     1221 McKinney Street, Suite 4500
     Houston, TX 77010

     Robert C. Walters (SBN 20820300)
     rwalters@gibsondunn.com
     GIBSON, DUNN & CRUTCHER LLP
     2100 McKinney Avenue, Suite 1100
     Dallas, TX 75201

     C. Andrew Weber (SBN 00797641)
     andrew.weber@kellyhart.com
     KELLY HART & HALLMAN LLP
     301 Congress, Ste. 2000
     Austin, TX 78701
Respondent:

      Honorable Stephen Yelenosky
      Judge, 345th District Court
      Travis County Courthouse
      P.O. Box 1748
      Austin, TX 78767
      Tel: 512.854.9374

Real Party in Interest (Plaintiff in the Trial Court):

      The State of Texas

Counsel for Real Party in Interest The State of Texas:

      Raymond Winter (SBN 21791950)
      Chief, Civil Medicaid Fraud Division
      raymond.winter@texasattorneygeneral.gove
      Reynolds B. Brissenden (SBN 24056969)
      Managing Attorney, Civil Medicaid Fraud Division
      reynolds.brissenden@texasattorneygeneral.gov
      Assistant Attorneys General
      Civil Medicaid Fraud Division
      P.O. Box 12548 MC 056-1
      Austin, TX 78711
      Tel: 512.935.1709
      Fax: 512.499.0712




                       REQUEST FOR ORAL ARGUMENT

      Relators request the opportunity to present oral argument.




                                        ii
                                           TABLE OF CONTENTS

                                                                                                                   Page

IDENTITY OF PARTIES AND COUNSEL ...........................................................................i

REQUEST FOR ORAL ARGUMENT ................................................................................ ii

TABLE OF CONTENTS ................................................................................................ iii

INDEX OF AUTHORITIES............................................................................................... v

STATEMENT OF THE CASE ..........................................................................................xi

STATEMENT OF JURISDICTION .................................................................................. xii

ISSUE PRESENTED..................................................................................................... xii

STATEMENT OF FACTS................................................................................................. 1

SUMMARY OF THE ARGUMENT .................................................................................... 9

ARGUMENT ............................................................................................................... 10

         I.       THE TRIAL COURT ERRED IN ITS LEGAL CONCLUSIONS. ...................... 10

                  A.        Chapter 33 Applies to Claims “Based on Tort.”....................... 11

                            1.       Chapter 33 broadly applies to torts, with limited
                                     exceptions. ...................................................................... 11

                            2.       A TMFPA claim is a statutory tort that is not
                                     excepted from Chapter 33............................................... 13

                            3.       The State’s arguments to the contrary are
                                     unpersuasive. .................................................................. 16

                            4.       The trial court rejected the State’s arguments
                                     but erred for different reasons. ...................................... 18

                  B.        The State Seeks “Recovery of Damages” Within the
                            Scope of Chapter 33. ................................................................. 21

                                                           iii
                          1.       The State is seeking recovery of damages. ..................... 22

                          2.       The trial court failed to recognize that the State
                                   is seeking damages. ........................................................ 23

                 C.       Refusing to Apply Chapter 33 Was an Abuse of
                          Discretion. ................................................................................. 24

                          1.       The trial court improperly denied Xerox leave
                                   to designate responsible third parties. ............................ 25

                          2.       The trial court improperly struck Xerox’s third-
                                   party claims. .................................................................... 26

        II.      THERE IS NO ADEQUATE REMEDY BY APPEAL. .................................... 27

                 A.       Appellate Remedies Are Held Inadequate in This
                          Context. ..................................................................................... 28

                 B.       Appellate Remedies Are Inadequate in This Case. .................. 31

CONCLUSION AND PRAYER FOR RELIEF .................................................................... 35

RULE 52.3(J) CERTIFICATION .................................................................................... 36

CERTIFICATE OF SERVICE .......................................................................................... 37

APPENDIX

        Order Granting Motion to Strike Petitions in Intervention and Plea
        to the Jurisdiction .....................................................................................Tab A

        Order Denying The Xerox Parties’ Motion for Leave to Designate
        Responsible Third Parties ........................................................................ Tab B

        Order Granting State’s Plea to the Jurisdiction and Motion to
        Dismiss Third Party Claims ..................................................................... Tab C




                                                          iv
                                         INDEX OF AUTHORITIES

CASES                                                                                                         PAGE(S)
In re Altec Indus., Inc.,
    No. 10-12-00207-CV, 2012 WL 2469542
    (Tex. App.—Waco June 22, 2012,
    orig. proceeding)(mem. op.) ...................................................................25, 30, 34

In re Arthur Andersen, LLP,
    121 S.W.3d 471 (Tex. App.—Houston
    [14th Dist.] 2003, orig. proceeding) ............................................................passim

In re Brokers Logistics, Ltd.,
    320 S.W.3d 402 (Tex. App.—El Paso
    2010, orig. proceeding) .................................................................................30, 34
Casa Ford, Inc. v. Ford Motor Co.,
  951 S.W.2d 865 (Tex. App.—Texarkana
  1997, pet. denied)................................................................................................ 30
Davis v. Estridge,
  85 S.W.3d 308 (Tex. App.—Tyler
  2001, pet. denied)..........................................................................................12, 16
Del Lago Partners, Inc. v. Smith,
  307 S.W.3d 762 (Tex. 2010) .............................................................................. 17
Dugger v. Arredondo,
  408 S.W.3d 825 (Tex. 2013) .......................................................................passim

Elston v. City of Panhandle,
   50 S.W.2d 1090 (Tex. 1932) .............................................................................. 19
Eslon Thermoplastics v. Dynamic Sys., Inc.,
   49 S.W.3d 891 (Tex. App—Austin
   2001, no pet.) ...................................................................................................... 27

F.F.P. Operating Partners, L.P. v. Duenez,
   237 S.W.3d 680 (Tex. 2007) .......................................................................passim
In re Frank Kent Motor Co.,
    361 S.W.3d 628 (Tex. 2012)
    (orig. proceeding)................................................................................................ 10
                                                      v
In re Greyhound Lines, Inc.,
    No. 05-13-01646-CV, 2014 WL 1022329
    (Tex. App.—Dallas Feb. 21, 2014,
    orig. proceeding) (mem. op.) .............................................................................. 25

Grogan v. Garner,
  498 U.S. 279 (1991) ............................................................................................ 16

Harlingen Family Dentistry, P.C. v. Tex. Health & Human Servs.
  Comm’n.,
  452 S.W.3d 479 (Tex. App.—Austin
  2014, pet. filed) ................................................................................................... 15

Huie v. DeShazo,
  922 S.W.2d 920 (Tex. 1996) (orig. proceeding) ................................................ 10
Issacs v. Bishop,
   249 S.W.3d 100 (Tex. App.—Texarkana
   2008, pet. denied)................................................................................................ 11
JCW Elecs., Inc. v. Garza,
  257 S.W.3d 701 (Tex. 2008) .......................................................................passim

Jones v. Ray,
   886 S.W.2d 817 (Tex. App.—Houston
   [1st Dist.] 1994, orig. proceeding) ................................................................20, 29
United States ex rel. Jordan v. Northrop Grumman Corp.,
  No. CV 95-2985, 2002 WL 35454612
  (C.D. Cal. Aug. 5, 2002) ..................................................................................... 14

In re Lewis Casing Crews, Inc.,
    No. 11-14-00137-CV, 2014 WL 3398170
    (Tex. App.—Eastland July 10, 2014,
    orig. proceeding) (mem. op.) ..................................................................25, 30, 34

In re Masonite,
    997 S.W.2d 194 (Tex. 1999) .............................................................................. 33

Nabors Well Servs., Ltd. v. Romero,
  456 S.W.3d 553 (Tex. 2015) ............................................................................ 1, 2



                                                           vi
In re Oncor Elec. Delivery Co.,
    355 S.W.3d 304 (Tex. App.—Dallas
    2011, orig. proceeding) .................................................................................25, 31

Parker v. Highland Park, Inc.,
  565 S.W.2d 512 (Tex. 1978) ................................................................................ 1

Pemex Exploracion y Produccion v. BASF Corp.,
  2011 WL 9523407 (S.D. Tex. Oct. 20, 2011) .................................................... 12

PPG Indus., Inc. v. JMB/Hous. Ctrs. Partners Ltd. P’ship,
  146 S.W.3d 79 (Tex. 2004)................................................................................. 15

In re Prudential Ins. Co. of Am.,
    148 S.W.3d 124 (Tex. 2004) (orig. proceeding) ....................................27, 28, 33
Reata Const. Corp. v. City of Dallas,
  197 S.W.3d 371 (Tex. 2006) .............................................................................. 21
Sec. Trust Co. of Austin v. Lipscomb Cnty,
   180 S.W.2d 151 (Tex. 1944) .............................................................................. 21
Shipp v. Malouf,
   439 S.W.2d 432 (Tex. App.—Dallas
   2014, pet. denied).................................................................................................. 4
Shoemake v. Fogel, Ltd.,
   826 S.W.2d 933 (Tex. 1992) .............................................................................. 27

In re Smith,
    366 S.W.3d 282 (Tex. App.—Dallas
    2012, orig. proceeding) .................................................................................25, 31

Smith v. Sewell,
  858 S.W.2d 350 (Tex. 1993) .............................................................................. 20

In re State,
    355 S.W.3d 611 (Tex. 2011) .............................................................................. 33
State v. Naylor,
   No. 11-0114, 2015 WL 3852284 (Tex. June 19, 2015) ..................................... 20

Stewart Title Guar. Co. v. Sterling,
   822 S.W.2d 1 (Tex. 1991)................................................................................... 19

                                                          vii
Sw. Bank v. Info. Support Concepts, Inc.,
  149 S.W.3d 104 (Tex. 2004) ........................................................................11, 18
In re Team Rocket, L.P.,
    256 S.W.3d 257 (Tex. 2008) (orig. proceeding) ..........................................27, 33

In re Tex. Educ. Agency,
    441 S.W.3d 747 (Tex. App.—Austin
    2014, orig. proceeding) ....................................................................................... 10
Texas Dep’t of Corr. v. Herring,
   513 S.W.2d 6 (Tex. 1974)................................................................................... 20

Texas v. Merck & Co.,
   385 F. Supp. 2d 604 (W.D. Tex. 2005) .............................................................. 22
In re Unitec Elevator Servs. Co.,
    178 S.W.3d 53 (Tex. App.—Houston
    [1st Dist.] 2005, orig. proceeding) ...................................................................... 31
United States v. Hero,
  No. 78 CIV-4587, 1981 WL 1982
  (S.D.N.Y. July 27, 1981) .................................................................................... 14

United States v. RePass,
  688 F.2d 154 (2d Cir. 1982) ............................................................................... 14
United States v. Temple,
  299 F.2d 30 (7th Cir. 1962) ................................................................................ 14
Villarreal v. Wells Fargo Brokerage Servs., LLC,
   315 S.W.3d 109 (Tex. App.—Houston
   [1st Dist.] 2010, no pet.) ...............................................................................11, 12
Walker v. Packer,
  827 S.W.2d 833 (Tex. 1992) (orig. proceeding) ................................................ 10

Werner v. KPMG LLP,
  415 F. Supp. 2d 688 (S.D. Tex. 2006) ................................................................ 13
United States ex rel. Westmoreland v. Amgen, Inc.,
  738 F. Supp. 2d 267 (D. Mass. 2010) ................................................................. 14



                                                        viii
Wortham v. Walker,
  128 S.W.2d 1138 (Tex. 1939) (orig. proceeding) .............................................. 21

RULES & STATUTES
31 U.S.C.
   § 3729(a)(1)(A) ................................................................................................... 14
   § 3729(a)(1)(G) ................................................................................................... 14

42 U.S.C.
   § 1320a-7b .......................................................................................................... 16
   § 1320a-7b(g) ...................................................................................................... 16

25 TEX. ADMIN. CODE § 33.71 (2015) ....................................................................... 3

TEX. CIV. PRAC. & REM. CODE
  § 33.001............................................................................................................xi, 1
  § 33.002(a)(1) .............................................................................................. xii, 11
  § 33.002(c) ....................................................................................................11, 15
  § 33.002(c)(1) ....................................................................................................... 2
  § 33.002(c)(3) ....................................................................................................... 2
  § 33.003............................................................................................................... 13
  § 33.003(a) ....................................................................................................17, 21
  § 33.004(f)........................................................................................................... 25
  § 33.004(g) .......................................................................................................... 25
TEX. CIV. PRAC. & REM. CODE § 33.011 .................................................................. 21
  § 33.011(6) .......................................................................................................... 24
  § 41.002(d)(3) ..................................................................................................... 15

TEX. GOV’T CODE § 22.221(b) ................................................................................ xii




                                                            ix
TEX. HUM. RES. CODE
  § 36.002 ................................................................................................................. 5
  § 36.002(1) .......................................................................................................... 13
  § 36.007................................................................................................................. 5
  § 36.052................................................................................................................. 5
  § 36.052(a)(1) .........................................................................................17, 22, 23
  § 36.052(a)(3)(A) ................................................................................................ 24
  § 36.101............................................................................................................... 26
  § 36.106............................................................................................................... 26
  § 36.113............................................................................................................... 26
  § 36.131............................................................................................................... 16
  § 36.1021 ............................................................................................................. 22

TEX. R. CIV. P.
  2........................................................................................................................... 27
  38(a) .................................................................................................................... 26

OTHER AUTHORITIES
Act of June 17, 2005, 79th Leg. R.S., ch. 806, 2005 Tex. Sess. Law
  Serv. Ch. 806 (West) (codified at TEX. HUM. RES. CODE § 36.131) .................. 16
Black’s Law Dictionary (10th ed. 2014) ...........................................................14, 23

John E. Clark,
   The Texas Medicaid Fraud Prevention Statute: Sharp New Teeth
   for the State and Cash Rewards for Relators Exposing
   Wrongdoers,
   65 TEX. B.J. 120 (2002) ........................................................................................ 5

May 8, 2014
  (https://www.texasattorneygeneral.gov/oagnews/release.php?id=47
  34) ......................................................................................................................... 5




                                                               x
                        STATEMENT OF THE CASE


Nature of the case     This is a civil Medicaid fraud case brought by the State
                       of Texas for damages that allegedly exceed $1 billion.

                       The alleged fraud involves multiple parties, triggering the
                       contribution and fault-allocation scheme of Chapter 33.
                       TEX. CIV. PRAC. & REM. CODE § 33.001 et seq.

                       In this lawsuit, the State has sued only Xerox, seeking to
                       recoup from Xerox payments the State made to others.
                       The State has sued the third parties in separate lawsuits.

Respondent             Honorable Stephen Yelenosky
                       345th Judicial District Court of Travis County


Respondent’s action:   The trial court ruled that Chapter 33 does not apply to the
                       State’s claim. Thus, the trial court:

                          (1) granted the State’s motion to strike Xerox’s
                              third-party claims, Tab A, and

                          (2) denied Xerox’s motion for leave to
                              designate responsible third parties. Tab B.




                                      xi
                         STATEMENT OF JURISDICTION

      This Court has mandamus jurisdiction under TEX. GOV’T CODE § 22.221(b).


                                ISSUE PRESENTED

      Chapter 33 broadly applies to “any cause of action based on tort.” TEX. CIV.

PRAC. & REM. CODE § 33.002(a)(1). Did the trial court erroneously conclude that

the State’s statutory fraud claim is not a tort claim subject to Chapter 33?




                                          xii
                                STATEMENT OF FACTS

      This is a fraud suit brought by the State of Texas against two Xerox entities.

But the alleged fraud also involves third parties and claims that are intertwined.

The State simultaneously accuses Xerox and third-party Medicaid providers of a

fraudulent scheme and is suing them in separate lawsuits for the same damages.

Choosing to sue in tort, the State has pleaded itself right into Chapter 33.

                       Chapter 33 sets a broad legislative mandate

      “Gone is the ‘harsh system of absolute victory or total defeat.’” Nabors

Well Servs., Ltd. v. Romero, 456 S.W.3d 553, 559 (Tex. 2015) (quoting Parker v.

Highland Park, Inc., 565 S.W.2d 512, 518 (Tex. 1978)). For more than four

decades, the Texas Legislature has required fact-finders to apportion responsibility

according to the relative fault of the actors. Id. Plaintiffs cannot put 100% of the

liability on a single actor when multiple actors contribute to causing the harm.

This directive is so well known that it is often simply called “Chapter 33.” See

TEX. CIV. PRAC. & REM. CODE § 33.001 et seq.

      Chapter 33 “casts a wide net over conduct that may be considered in this

determination.” Nabors Well Servs., 456 S.W.3d at 560. “Whereas the 1987

version had expressly excluded intentional torts, the 1995 amendments removed

that exclusion” and now broadly applies to “any cause of action based on tort.”

JCW Elecs., Inc. v. Garza, 257 S.W.3d 701, 704 (Tex. 2008). It likewise applies to

statutory torts. Id.
      The exceptions to Chapter 33 are very few. “When the Legislature intends

an exception to Chapter 33’s broad scheme, it creates specific exceptions for

matters that are outside the scope of proportionate responsibility.” Dugger v.

Arredondo, 408 S.W.3d 825, 832 (Tex. 2013). The statute excepts claims for

workers compensation benefits and for damages arising from methamphetamine

manufacturing, for example. TEX. CIV. PRAC. & REM. CODE § 33.002(c)(1), (3).

No express exception is at issue in this case.

      When Chapter 33 applies, it sets a clear directive: “fact-finders should

consider each person’s role in causing, ‘in any way,’ harm for which recovery of

damages is sought.” Nabors Well Servs., 456 S.W.3d at 560.

      Against the backdrop of this broad statutory directive, the State has brought

a tort suit for damages and seeks to be relieved of the legislature’s dictates.

                HHSC contracts for processing of Medicaid claims

      The Texas Health and Human Services Commission oversees the Texas

Medicaid program, which serves low-income Texans. The program includes a

process for reimbursing providers for the services provided to eligible children.

      HHSC has in recent years hired contractors to assist it in claims processing.

R.409. During the time period from 2004 to 2014, HHSC contracted with a private

entity to be its fiscal agent and claims processor. R.30. That entity was acquired

by Xerox Corporation. R.2.


                                           2
       Long known as a brand name for copiers, Xerox now has a business division

that provides analytic, consulting, revenue improvement, technological, and

business process outsourcing solutions to the healthcare industry worldwide. The

Xerox entity that contracted with HHSC is Xerox State Healthcare, LLC. R.2.1

       HHSC contracted with Xerox State Healthcare in 2003 and again in 2010 to

provide multiple Medicaid administrative and technical services, including the

processing of “prior authorizations” for orthodontic services submitted by the

providers. R.7, R.16. The “prior authorization” process requires providers to

submit forms, materials, and certifications related to the provider’s diagnosis and

the patient’s condition in order to receive prior approval for the orthodontic

services. R.131. Instead of performing services first and then submitting the bill

for payment, Medicaid “[o]rthodontic services must be prior authorized” before the

provider performs the service. 25 TEX. ADMIN. CODE § 33.71 (2015).

       Under the contract, Xerox State Healthcare established the Texas Medicaid

& Healthcare Partnership (TMHP), a consortium of Xerox State Healthcare and

other subcontractors.         TMHP processed hundreds of thousands of prior-

authorization requests for orthodontic services over the span of a decade. During

that time period, the State alleges that it spent approximately $1.1 billion for

orthodontic services to Medicaid-eligible children. R.3, R.131.
       1
          HHSC first contracted with ACS State Healthcare LLC, which changed its name to
Xerox State Healthcare, LLC after it was acquired by Xerox Corporation. R.2. Xerox
Corporation and Xerox State Healthcare, LLC are distinct entities with separate legal arguments
about the underlying claims; references to them jointly as “Xerox” are solely for ease of reading.
                                                3
      HHSC approved the contract and prior authorization policies under which

TMHP operated, and it oversaw the work of Xerox State Healthcare (and the other

TMHP contractors). R.406-20. In fact, HHSC’s Office of Inspector General

conducted a full contract audit of the prior authorization process, and the results

were made public in a 2008 report. Id. (OIG audit report). Xerox State Healthcare

continued to perform under its contract until May 2014, when the State terminated

the contract and simultaneously filed this suit.

                 Negative publicity prompts the State to cast blame

      This lawsuit followed a cycle of negative publicity about HHSC and the

State’s spending on Medicaid orthodontic services. See, e.g., R.310-11, 315-16,

357-58, 360-63.2 A series of “investigative” news reports in 2011 raised questions

about the State’s spending on orthodontic services to Medicaid-eligible children

and about the medical judgments of orthodontic providers, causing HHSC to

second-guess that spending and begin casting blame on others.

      HHSC’s Office of Inspector General, led by a now-departed deputy, R.360-

63, R.365-78, made sweeping pronouncements of a vast fraud against the Medicaid

program by orthodontic providers across the State. Then, in this lawsuit, filed in

May 2014, the State accused Xerox of failing to “catch” the providers’ alleged

fraud through the prior authorization process.


      2
          See e.g., Shipp v. Malouf, 439 S.W.2d 432, 437–38 (Tex. App.—Dallas 2014, pet.
denied) (discussing publicity about Medicaid provider).
                                           4
      In a press release that accompanied this lawsuit, the State declared that

“Xerox had not been properly reviewing orthodontic claims as required by its

contract with the State.”3 But the lawsuit did not plead a claim for breach of

contract.

      Instead, the State sued for fraud, taking the view that contract breaches can

be cast as “misrepresentations” and “nondisclosures” about how the contract was

performed. By doing this, the State has sought to dramatically up the ante. Instead

of seeking ordinary contract remedies, the State seeks extraordinary statutory tort

remedies—available to it only under the Texas Medicaid Fraud Prevention Act.

    The State brings a claim under the Texas Medicaid Fraud Prevention Act

      The      TMFPA       defines    “unlawful    acts,”   beginning     with    knowing

misrepresentations and nondisclosures. See TEX. HUM. RES. CODE § 36.002.

      It also provides substantial civil remedies.          A person who commits an

“unlawful act” can be sued for the amount of payments made “as a result of the

unlawful act,” plus double damages, civil penalties for each unlawful act between

$5,500 and $15,000, prejudgment interest, and reimbursement of the State’s

reasonable attorneys’ fees, expenses, and costs. See id. §§ 36.052, 36.007. When

aggregated, these damages claims “can amount to huge sums.” John E. Clark, The

Texas Medicaid Fraud Prevention Statute: Sharp New Teeth for the State and

Cash Rewards for Relators Exposing Wrongdoers, 65 TEX. B.J. 120, 123 (2002).

      3
          May 8, 2014 (https://www.texasattorneygeneral.gov/oagnews/release.php?id=4734).
                                             5
                        The State seeks the same recovery
                 from Xerox and the providers in separate lawsuits

        The State’s suit against Xerox seeks “all relief possible” under the TMFPA.

R.21.    This relief includes the value of payments made under the Medicaid

program to the Medicaid orthodontic-service providers—not to Xerox. R.21.

        Meanwhile, the State has sued the orthodontic-service providers for the same

Medicaid payments in separate proceedings and lawsuits. R.156-81, R.286-308.

For example, HHSC has issued payment holds and recoupment claims against

providers and has brought administrative claims against them. R.320-325, R.534-

606. And the State has also alleged a TMFPA claim against other providers.

R.286-308. The providers have likewise sued the State and Xerox in separate

lawsuits, all involving the same basic facts and allegations at issue in the State’s

suit against Xerox.

        As a result, several orthodontic-service providers intervened in this lawsuit,

asserting common-law tort claims against both the State and Xerox and seeking to

recover for losses incurred as a result of the State’s payment holds. The State

moved to strike the intervention, and its motion was granted. R.98-99.

        Xerox then invoked its rights as a tort defendant under Chapter 33. It filed a

third-party petition suing 27 specific providers for contribution. R66-76. But the

State moved to strike the third-party petition, and the motion was granted. Tab A

(R.629).

                                           6
      The trial court explained its reasoning: (1) there “is no authority for treating

an enforcement action [under the TMFPA] by the State as a statutory tort;” (2) “the

civil remedy in the TMFPA is not a damage provision;” and (3) “[i]f [the Xerox

Parties] have any right to contribution, it must be pursued in a separate action

between alleged wrongdoers.” R.232-33. The trial court further emphasized that

the TMFPA does not have a fault-allocation scheme: “There is no comparative

fault, joint-and-several liability, contribution, single-satisfaction, or settlement

credit in a TMFPA action.” R.232.

      Xerox then moved for leave to designate the same providers as responsible

third parties. The State opposed the motion on the same grounds as before, and the

trial court ruled that Chapter 33 does not apply. R.632-33. The trial court denied

Xerox’s motion for leave. Tab B (R.631).

      In deference to the trial court, Xerox first sought the court’s permission for

an interlocutory appeal. It presented briefing on why immediate appellate review

would be appropriate. The trial court declined to certify the issue. R.634.

      Xerox now petitions this Court for mandamus relief from the two orders

denying it fundamental procedural rights under Chapter 33 afforded to defendants

facing tort claims.




                                          7
            The providers bring an appeal in Nazari v. State of Texas

      The issues in this original proceeding are related to the issues before the

Court on direct appeal in Nazari v. State of Texas, No. 03-15-00252-CV, in which

Medicaid providers filed their opening brief on June 19, 2015.

      The various lawsuits between the State, Medicaid providers, and the Xerox

entities have all been specially assigned, through the Travis County district court

administrative process, to one district judge. The trial court was made aware that

the State is seeking the same damages against separate parties in separate lawsuits

based on factually related allegations.       Yet the trial court has ruled that the

defendants in each case cannot bring claims against each other in the same lawsuit:

      Consistent with this Court’s rulings in the State’s litigation against
      Xerox, the Court finds that the State is entitled to bring this action
      against defendants to the exclusion of other parties.

Tab C (order dismissing providers’ counterclaims against the State and third-party

claims against Xerox, on appeal in Nazari v. State of Texas).

      The issues in the Nazari appeal and this proceeding are not identical, but

they underscore that the State’s claims against Xerox and the providers are

intertwined and that it is not only impermissible but also fundamentally unfair to

permit the State to take a divide-and conquer approach.




                                          8
                         SUMMARY OF THE ARGUMENT

      The Texas Supreme Court is quite clear about Chapter 33’s broad scope.

It honors Chapter 33’s plain language, which applies to “any cause of action based

on tort” for “recovery of damages.” It further holds that Chapter 33’s statutory

mandates are “not discretionary.” F.F.P. Operating Partners, L.P. v. Duenez, 237

S.W.3d 680, 694 (Tex. 2007).

      Chapter 33 applies to the State’s fraud claim against Xerox because it is

“based on tort” and seeks “recovery of damages.” The State’s claim is merely a

statutory tort, and such torts are subject to Chapter 33 so long as the Legislature

has not excepted the statute from Chapter 33’s broad scope. See JCW Elecs., Inc.

v. Garza, 257 S.W.3d 701, 704–06 (Tex. 2008). Further, the State has repeatedly

acknowledged that it seeks to recover “damages” from Xerox. Chapter 33 squarely

applies, and the trial court erred by holding otherwise.

      Courts frequently grant mandamus relief from refusals to apply Chapter 33.

They recognize that trials without all potentially responsible parties are unfairly

skewed. In exceptional cases like this one, with an enormous damage model,

multiple parties, and hundreds of thousands of transactions, a trial without all

responsible parties is thus “destined to fail in the appellate process.” See In re

Arthur Andersen, LLP, 121 S.W.3d 486 (Tex. App.—Houston [14th Dist.] 2003,

orig. proceeding). Like many of its sister courts across the state, this Court should

grant mandamus relief.
                                          9
                                    ARGUMENT

      “Mandamus relief is proper to correct a clear abuse of discretion when there

is no adequate remedy by appeal.” In re Frank Kent Motor Co., 361 S.W.3d 628,

630 (Tex. 2012) (orig. proceeding); see In re Tex. Educ. Agency, 441 S.W.3d 747,

750 (Tex. App.—Austin 2014, orig. proceeding). Both prongs are satisfied here.

I.    THE TRIAL COURT ERRED IN ITS LEGAL CONCLUSIONS.

      Whether Chapter 33 applies to a claim is a matter of statutory construction

and thus a question of law. See F.F.P. Operating Partners, L.P. v. Duenez, 237

S.W.3d 680, 683 (Tex. 2007). “A trial court has no ‘discretion’ in determining

what the law is or applying the law to the facts.” Walker v. Packer, 827 S.W.2d

833, 840 (Tex. 1992) (orig. proceeding).       This is true even when addressing

questions of first impression. “[T]he trial court’s erroneous legal conclusion, even

in an unsettled area of law, is an abuse of discretion.” Huie v. DeShazo, 922

S.W.2d 920, 927-28 (Tex. 1996) (orig. proceeding).

      This case presents a paradigmatic scenario for bringing contribution claims

and designating responsible third parties.      Factually intertwined fraud claims

against multiple parties resulted in the same alleged injury. Yet the trial judge held

that the State’s TMFPA claim does not sound in “tort” or seek “damages.” R.232.

Each of these conclusions is incorrect. The State is bringing a tort claim for

damages, which squarely triggers Chapter 33.


                                         10
      A.     Chapter 33 Applies to Claims “Based on Tort.”

             1.    Chapter 33 broadly applies to torts, with limited exceptions.

      Chapter 33 applies to “any cause of action based on tort.” TEX. CIV. PRAC.

& REM. CODE § 33.002(a)(1). It applies to intentional torts. See, e.g., JCW Elecs.,

Inc. v. Garza, 257 S.W.3d 701, 704–06 (Tex. 2008); Issacs v. Bishop, 249 S.W.3d

100, 116–17 (Tex. App.—Texarkana 2008, pet. denied) (fraud). And it applies to

statutory torts, so long as the tort statute does not include its own separate fault-

allocation scheme. E.g., Sw. Bank v. Info. Support Concepts, Inc., 149 S.W.3d

104, 107 (Tex. 2004) (Chapter 33 does not apply where tort statute has separate

fault-allocation scheme); Villarreal v. Wells Fargo Brokerage Servs., LLC, 315

S.W.3d 109, 124–25 (Tex. App.—Houston [1st Dist.] 2010, no pet.) (synthesizing

rule for statutory torts in light of Garza and Southwest Bank).

      The exceptions to Chapter 33 are very few. “When the Legislature intends

an exception to Chapter 33’s broad scheme, it creates specific exceptions for

matters that are outside the scope of proportionate responsibility.” Dugger v.

Arredondo, 408 S.W.3d 825, 831 (Tex. 2013) (citing Duenez, 237 S.W.3d at 690–

91). The Legislature expressly excepts certain claims in Chapter 33 itself, or it

creates a separate fault-allocation scheme. See TEX. CIV. PRAC. & REM. CODE

§ 33.002(c) (“This chapter does not apply to . . . .”); Sw. Bank, 149 S.W.3d at 107.

Unless the Legislature excepts a claim, then Chapter 33—by its plain terms—

applies to “any cause of action based on tort.”
                                         11
       Following these rules, courts have held that Chapter 33 applies to statutory

tort claims under:

       the Wrongful Death Act, Dugger v. Arredondo, 408 S.W.3d 825, 831
        (Tex. 2013);

       the Dram Shop Act, Duenez, 237 S.W.3d at 689;

       UCC-based implied warranty claims, Garza, 257 S.W.3d at 702;

       the Texas Securities Act, Villarreal, 315 S.W.3d at 124;

       the Texas Trust Act, id.; and

       the Texas Theft Liability Act, Pemex Exploracion y Produccion v. BASF
        Corp., 2011 WL 9523407, at *13 (S.D. Tex. Oct. 20, 2011).

      The lone outlier is a 2001 Tyler Court of Appeals decision holding that

Chapter 33 does not apply to a claim under the Fraud in Real Estate and Stock

Transactions statute. See Davis v. Estridge, 85 S.W.3d 308, 312 (Tex. App.—

Tyler 2001, pet. denied). Because Davis predated the supreme court’s recent

guidance in Garza and Southwest Bank, the First Court of Appeals rejected its

holding as unpersuasive:

      Since Davis, the Texas supreme court has held that Chapter 33 applied
      to a statutory tort claim in JCW Electronics, Inc. v. Garza, 257
      S.W.3d 701, 705–06 (Tex. 2008). Moreover, the express language of
      section 33.002(a) provides that Chapter 33 applies “to any action
      based in tort.”

Villarreal, 315 S.W.3d at 125 n.7. In light of Duenez, Garza, and Dugger, courts

now recognize that Chapter 33 broadly includes statutory torts as well.



                                        12
             2.     A TMFPA claim is a statutory tort that is not excepted from
                    Chapter 33.

      No one can dispute that “fraud” is a tort. And “fraud” is the TMFPA’s

middle name.      The Texas Medicaid Fraud Prevention Act merely codifies a

particular species of fraud against the State. The statute generally requires the

plaintiff to prove that the defendant “knowingly ma[de] or cause[d] to be made a

false statement or misrepresentation of a material fact.” TEX. HUM. RES. CODE

§ 36.002(1). In this case, the State alleges that Xerox “knowingly made or caused

to be made false statements or misrepresentations of material facts.” R.19, ¶39.

These allegations plainly sound in tort.

      In Garza, the supreme court explained that “[a]lthough the 1995 statute does

not define the term ‘tort,’ its meaning is nevertheless clear from section 33.003.”

257 S.W.3d at 704. It encompasses claims for negligence, products liability, and

harm caused by conduct or activity “that violates an applicable legal standard.” Id.

at 705 (quoting TEX. CIV. PRAC. & REM. CODE § 33.003(a)).

      The court then held: “The language ‘other conduct or activity that violates

an applicable legal standard’” was “clearly broad enough” to encompass a claim

for breach of an implied warranty under UCC article 2. Id. The same language in

Chapter 33 is likewise broad enough to encompass the State’s statutory fraud

claim. See Werner v. KPMG LLP, 415 F. Supp. 2d 688, 703 (S.D. Tex. 2006)

(“Texas courts apply Chapter 33 to fraud claims and to statutory tort claims[.]”).

                                           13
       Other sources further confirm that a TMFPA claim sounds in tort. Black’s

Law Dictionary defines “tort” as: “A civil wrong, other than breach of contract,

for which a remedy may be obtained, usu. in the form of damages[.]” Black’s Law

Dictionary, Tort (10th ed. 2014). It is undisputed that the State’s TMFPA claim is

civil, not criminal. See R.3, ¶7 (the State seeks “civil remedies”). And while the

State could have brought its claim in contract, it did not. By choosing to bring its

claim in tort, the State must live with all of Texas tort law—including Chapter 33.

       The TMFPA’s closest federal analogue is the False Claims Act,4 which

federal courts characterize as authorizing the federal government to bring “tort”

claims. United States v. RePass, 688 F.2d 154, 157 (2d Cir. 1982) (“The gravamen

of this [False Claims Act] claim is the tort of intentional fraud and

misrepresentation.”); United States v. Temple, 299 F.2d 30, 32 (7th Cir. 1962)

(characterizing a False Claims Act suit as “an action sounding in tort”).5 The

unanimous recognition that False Claims Act claims sound in tort is a strong basis

to hold a TMFPA claim does as well.6


       4
          Like the TMFPA, the False Claims Act creates liability for a person who “knowingly
presents, or causes to be presented, a false or fraudulent claim for payment or approval” and
permits the government to recover “3 [three] times the amount of damages which the
Government sustains because of the act.” 31 U.S.C. § 3729(a)(1)(A), (G).
        5
          See also United States ex rel. Westmoreland v. Amgen, Inc., 738 F. Supp. 2d 267, 271-
72 (D. Mass. 2010) (“Since the False Claims Act creates a statutory tort . . . .”); United States ex
rel. Jordan v. Northrop Grumman Corp., No. CV 95-2985, 2002 WL 35454612, at *20 (C.D.
Cal. Aug. 5, 2002) (same); United States v. Hero, No. 78 CIV-4587, 1981 WL 1982, at *3
(S.D.N.Y. July 27, 1981) (same).
        6
          Analogizing to federal decisions interpreting the False Claims Act is helpful in properly
characterizing a TMFPA claim as one sounding in “tort” and seeking “damages.” But federal
law also has limited utility, as Chapter 33’s scheme for tort claims has no federal counterpart.
                                                14
      A TMFPA claim plainly sounds in tort, and the Texas Legislature has not

excepted it from the dictates of Chapter 33.         The TMFPA does not include

provisions for allocating responsibility among parties who caused or contributed to

causing the State’s injury, so it has no competing fault allocation scheme. Indeed,

the trial court acknowledged this point and embraced it in its letter ruling: “There

is no comparative fault, joint-and-several liability, contribution, single-satisfaction,

or settlement credit in a TMFPA action.” R.232.

      Further, Chapter 33 does not expressly except the TMFPA. See TEX. CIV.

PRAC. & REM. CODE § 33.002(c) (“This chapter does not apply to . . . .”). The

TMFPA is not among the claims that are excluded. By contrast, the exemplary

damages provisions in Chapter 41 expressly exclude the TMFPA. See TEX. CIV.

PRAC. & REM. CODE § 41.002(d)(3) (“Notwithstanding any provision to the

contrary, this chapter does not apply to . . . an action brought under Chapter 36,

Human Resources Code.”).

      The inference is straightforward: when the Legislature intends to exclude a

TMFPA claim from general statutes governing civil litigation, it does so expressly.

See Dugger, 408 S.W.3d at 831; PPG Indus., Inc. v. JMB/Hous. Ctrs. Partners Ltd.

P’ship, 146 S.W.3d 79, 84 (Tex. 2004) (explaining expressio unius est exclusio

alterius); Harlingen Family Dentistry, P.C. v. Tex. Health & Human Servs.

Comm’n., 452 S.W.3d 479, 482 (Tex. App.—Austin 2014, pet. filed) (same).

It is undisputed that the TMFPA has not been expressly excluded from Chapter 33.
                                          15
              3.    The State’s arguments to the contrary are unpersuasive.

       At first the State sought to avoid Chapter 33 by relying on the 2001 Tyler

decision. R.80 (citing Davis v. Estridge, 85 S.W.3d 308, 312 (Tex. App.—Tyler

2001, pet. denied)). The State did not appear to have realized that Davis may be

bad law in light of the supreme court’s more recent decisions in Duenez, Garza,

and Dugger.

       When confronted with the supreme court’s cases, the State switched tacks.

The State argued that the TMFPA has its origins in criminal law, and therefore

does not sound in tort. R.195 (citing 42 U.S.C. § 1320a-7b). But the State failed

to notice that the same statute it cited to support its position indicates that the civil

remedies it seeks in this case would be available only through a civil action under

federal law. See 42 U.S.C. § 1320a-7b(g). Under federal law, claims to recover

damages for overpayments based on false statements for Medicaid reimbursement

are “substantive causes of action for fraud.” Grogan v. Garner, 498 U.S. 279, 288

(1991). There is no reason for Texas courts to reach a different result.

       Moreover, the Texas Legislature amended the TMFPA in 2005 to remove

“Criminal Penalties” from TEX. HUM. RES. CODE § 36.131. See Act of June 17,

2005, 79th     Leg. R.S., ch. 806, 2005 Tex. Sess. Law Serv. Ch. 806 (West).

Whatever criminal origins the TMFPA may have had, it is now exclusively a civil

statute.



                                           16
       The State also argued that a TMFPA violation is not a statutory tort because

“traditional common law notions of reliance and causation are wholly absent from

the TMFPA.” R.199. But the State overlooked the TMFPA’s causation standard:

the statute makes “a person who commits an unlawful act” liable for the amount of

the payment or benefit provided “as a result of the unlawful act.” TEX. HUM. RES.

CODE § 36.052(a)(1). The TMFPA’s causation requirement is consistent with

concluding it is a tort that is subject to apportionment for “causing or contributing

to cause in any way the harm for which recovery of damages is sought.” TEX. CIV.

PRAC. & REM. CODE § 33.003(a).

       The State also argued that Chapter 33 does not apply “because under the

TMFPA, Xerox can only ever be held responsible for damages resulting from its

own conduct” and “can never be held responsible for the actions of third parties.”

R.200. This argument is a non sequitur. Black-letter law provides: “There may be

more than one proximate cause of an event[.]” Del Lago Partners, Inc. v. Smith,

307 S.W.3d 762, 774 (Tex. 2010).         Under the State’s theory of liability, its

damages resulted from Xerox’s conduct in combination with the conduct of third

parties.   R.3, ¶8.   That multiple parties allegedly caused the State’s harm is

precisely why Chapter 33 applies.

       Last, the State argued that it is not “workable” to “mesh” Chapter 33 with

the TMFPA, because “the TMFPA does contain its own ‘separate and conflicting

legislative fault-allocation scheme.’” R.201. This argument attempts to bring the
                                         17
TMFPA within the holding of Southwest Bank, where the supreme court held that

Chapter 33 was displaced where a statute includes “a comprehensive and carefully

considered allocation of responsibility among parties to [a] relationship[].” Sw.

Bank, 149 S.W.3d at 107. This exacting standard was satisfied in Southwest Bank

because the UCC statute had “its own comparative negligence provisions.” Id.

      By contrast, the TMFPA does not allocate liability among parties or have

comparative fault provisions, and the State has not seriously contended otherwise.

The State has pointed only to the TMFPA’s scienter requirements and argued the

statute does not “differentiate between the culpability of potential violators,

holding a person who acts with reckless disregard equally as liable as a person who

acts with actual knowledge or conscious indifference.” R.202.

      This observation about scienter is the exact opposite of showing a fault-

allocation scheme. It is perfectly acceptable under Chapter 33 to hold persons of

different levels of culpability responsible for their share of the harm. Indeed, that

is the point. The State cannot manufacture a fault-allocation scheme out of the fact

that the TMFPA (like all intentional torts) has a scienter requirement.

             4.    The trial court rejected the State’s arguments but erred for
                   different reasons.

      The trial court correctly rejected the State’s arguments and recognized that

the TMFPA does not have its own separate fault-allocation scheme. R.232. This

conclusion should have bound the trial court to apply Chapter 33 to a statutory tort

                                         18
that “does not undertake a comprehensive fault scheme.” Garza, 257 S.W.3d at

706; see also Dugger, 408 S.W.3d at 831; Duenez, 237 S.W.3d at 689.

       However, the trial court did not fully apply the supreme court cases.

Instead, the trial court appeared to interpret the lack of a fault-allocation scheme in

the TMFPA to mean that those principles do not apply:

       Each wrongful actor is liable for a civil remedy . . . in multiples of the
       State’s actual loss that is undiminished by the civil remedy . . . paid by
       another actor. … There is no comparative fault, joint-and-several
       liability, contribution, single satisfaction, or settlement credit in a
       TMFPA action.

R.232. In short, the trial court read the TMFPA as if Chapter 33 did not exist.

Xerox respectfully submits that such a reading is erroneous.

       In addition, such an interpretation of the TMFPA is unsound because it

would create extraordinary liability unknown to the common law. The bar against

double recovery existed long before 1995, when the TMFPA was enacted. See,

e.g., Stewart Title Guar. Co. v. Sterling, 822 S.W.2d 1, 6 (Tex. 1991) (“There is no

reason we should allow a windfall double recovery in cases involving multiple

defendants when double recovery is clearly prohibited against a single

defendant.”); see also Elston v. City of Panhandle, 50 S.W.2d 1090, 1090–91 (Tex.

1932) (“There was but one injury and there can be but one satisfaction of the

damages arising from the injury, whether the satisfaction was reached through the

act of one or all of the tort-feasors.”).


                                            19
       Thus, the notion that the TMFPA permits double recoveries could be created

only expressly by a statute’s plain text. See Smith v. Sewell, 858 S.W.2d 350, 354

(Tex. 1993). The TMFPA’s silence regarding contribution, single satisfaction,

etcetera cannot be interpreted as expressly permitting a double recovery. See also

Jones v. Ray, 886 S.W.2d 817, 822 (Tex. App.—Houston [1st Dist.] 1994, orig.

proceeding) (describing “two different judgments for full compensation for the

same injuries” as a “nonsensical result”). Instead, the TMFPA’s silence about a

comprehensive fault-allocation scheme is precisely why Chapter 33 applies.

       Separately, the trial court incorrectly concluded that the State’s claim is

brought as an “enforcement action” and thus is not a “statutory tort.” R.232. The

State presented no authority for such an argument, and we have found none.

       Calling the state’s claim an “enforcement action” seems to contemplate that

the State is special, and that when it sues as a plaintiff under the TMFPA the rules

apply differently. But the State is bound here by the same rules that apply to

private litigants.

       The Texas Supreme Court recently reaffirmed: “where the Legislature has

given no indication to the contrary the State must abide by the same rules to which

private litigants are beholden.” State v. Naylor, No. 11-0114, 2015 WL 3852284,

at *6 (Tex. June 19, 2015). “As a general rule, the State litigates as any other party

in Texas courts.” Texas Dep’t of Corr. v. Herring, 513 S.W.2d 6, 7 (Tex. 1974).


                                         20
      This principle is settled:

      [W]hen a State enters the Courts as a litigant, it must be held subject
      to the same rules that govern the other litigants, and abide the
      consequences of the suit . . . . When a state appears as a party to a
      suit, she voluntarily casts off the robes of her sovereignty, and stands
      before the bar of a court of her own creation in the same attitude as an
      individual litigant; and her rights are determined and fixed by the
      same principles of law and equity . . . .

Wortham v. Walker, 128 S.W.2d 1138, 1145–46 (Tex. 1939) (orig. proceeding)

(internal quotation marks omitted); accord Reata Const. Corp. v. City of Dallas,

197 S.W.3d 371, 377 (Tex. 2006) (“Once it asserts affirmative claims for monetary

recovery, the City must participate in the litigation process as an ordinary

litigant . . . .”); Sec. Trust Co. of Austin v. Lipscomb Cnty, 180 S.W.2d 151, 159

(Tex. 1944) (“When the state becomes a party to a suit it is subject to the same

rules that govern other parties . . . .”). These rules likewise apply here.

      In short, there is no basis for concluding that the State’s claim falls outside

Chapter 33’s broad scope.

      B.     The State Seeks “Recovery of Damages” Within the Scope of
             Chapter 33.

      The proportionate responsibility and contribution provisions of Chapter 33

apply to claims resulting from harm for which “recovery of damages” is sought.

TEX. CIV. PRAC. & REM. CODE § 33.003(a) (proportionate responsibility); id.

§ 33.011 (contribution). Here, Chapter 33 also applies because the State seeks

recovery of damages.


                                          21
             1.    The State is seeking recovery of damages.

      The TMFPA expressly recognizes that its civil remedies include the

recovery of “damages”: “In an action under this subchapter, the state or person

bringing the action must establish each element of the action, including damages,

by a preponderance of the evidence.” TEX. HUM. RES. CODE § 36.1021 (emphasis

added); see also Texas v. Merck & Co., 385 F. Supp. 2d 604, 606 (W.D. Tex.

2005) (Yeakel, J.) (“Texas brought suit against Merck for damages and civil

penalties pursuant to the [TMFPA].”). There can be no debate that the TMFPA

creates liability for “damages.”

      The TMFPA permits the State to recover money as compensation in “the

amount of any payment or the value of any monetary or in-kind benefit provided

under the Medicaid program, directly or indirectly, as a result of the unlawful act,

including any payment made to a third party.” Id. § 36.052(a)(1). This provision

is plainly a measure of “damages.”

      The State’s Original Petition states that it is “seeking civil remedies under

the TMFPA.” R.3. It alleges: “As a result of Xerox’s conduct,” the State made

“hundreds of millions of dollars in payments.” R.21. It therefore seeks from

Xerox “the value of any payments or any monetary or in-kind benefits provided

under the Medicaid program, directly or indirectly, as a result of its unlawful acts,




                                         22
[and] two times the amount of those payments.” R.21, ¶43 . This is precisely the

language used in Section 36.052(a)(1) of the TMFPA—a damages provision.7

       In fact, the State has repeatedly admitted that it is seeking damages. See

R.80, ¶5 (referring to “damages that are awarded to the State in this TMFPA

lawsuit”); R.193 (referring to “the State’s theory of damages”); Id. (noting that

“amounts unlawfully paid to Xerox as well as amounts unlawfully paid to

providers” are “a measure of damages”); R.200 (“Xerox can only ever be held

responsible for damages resulting from its own conduct.”); R.205 (describing

payments to providers as “one potential measure of damages”); R.133 (disclosures

regarding the “amount of damages [that will be] requested by Texas at trial”). The

State’s repeated concessions correctly recognize that it has a claim for damages.

              2.     The trial court failed to recognize that the State is seeking
                     damages.

       Despite the TMFPA’s plain text and the State’s repeated acknowledgements

that it was seeking damages, the trial court concluded that “the civil remedy in the

TMFPA is not a damage provision.” R.232. The trial court did not offer reasoning

to support this assertion.




       7
           The ordinary meaning of the word “damages” plainly includes compensation to the
State for overpayments. “Damages” refers to “[m]oney claimed by, or ordered to be paid to, a
person as compensation for loss or injury.” Black’s Law Dictionary, Damages (10th ed. 2014).
“Compensatory damages” are “[d]amages sufficient in amount to indemnify the injured person
for the loss suffered.” Black’s Law Dictionary, Compensatory Damages (10th ed. 2014).

                                            23
      It is possible the trial court was focused on the State’s claim for civil

penalties, wherein it seeks $5,500 to $15,000 for each “unlawful act.” R.21–22;

TEX. HUM. RES. CODE § 36.052(a)(3)(A). But the alleged basis for the civil

penalties sought against Xerox is the alleged misrepresentations about the prior

authorization process—not the Medicaid providers’ claims for payment. Xerox

seeks to apply Chapter 33 to the State’s damages claims, which seek the amounts

of alleged overpayments made to the Medicaid providers. There is no basis for

concluding that the alleged overpayments are anything but damages, and thus

subject to Chapter 33.

      C.     Refusing to Apply Chapter 33 Was an Abuse of Discretion.

      The State’s liability theory presents a classic case for applying Chapter 33.

According to the State, “predatory and unscrupulous dental providers” sought

payment for orthodontic services that were outside the scope of Medicaid

coverage. R.3. It alleges that Xerox “failed to adequately review the orthodontic

prior authorization requests and documentation submitted by providers.” R.4.

      The State seeks damages for overpayments made to Medicaid providers—

not to Xerox. Even if these overpayments resulted from Xerox’s unlawful acts—

which is adamantly denied—the providers “caused or contributed to causing . . .

the harm for which recovery of damages is sought.” TEX. CIV. PRAC. & REM.

CODE § 33.011(6). As a tort defendant facing damages for these allegations, Xerox

is entitled to invoke Chapter 33.
                                        24
       Based on the trial court’s conclusion that Chapter 33 does not apply, the trial

court issued two orders that represent a clear abuse of discretion.

              1.     The trial court improperly denied Xerox leave to designate
                     responsible third parties.

       In one order, the trial court improperly denied Xerox’s motion for leave to

designate responsible third parties. Tab B.

       Courts uniformly hold that denying leave to designate responsible third

parties without first granting leave to replead is an abuse of discretion. 8 This is

because Chapter 33 imposes a mandatory duty on trial courts: “A court shall grant

leave to designate the named person as a responsible third party[.]” TEX. CIV.

PRAC. & REM. CODE § 33.004(f); see Duenez, 237 S.W.3d at 694 (Chapter 33’s

statutory mandates are “not discretionary”).

       The only basis for denying leave to designate a responsible third party is if

the defendant fails to plead sufficient facts concerning the alleged responsibility

after an opportunity to replead. TEX. CIV. PRAC. & REM. CODE § 33.004(g). That

did not happen here. Because Chapter 33 applies, the trial court had no discretion

to deny Xerox leave to designate responsible third parties.



       8
          See, e.g., In re Lewis Casing Crews, Inc., No. 11-14-00137-CV, 2014 WL 3398170, at
*1 (Tex. App.—Eastland July 10, 2014, orig. proceeding) (mem. op.); In re Greyhound Lines,
Inc., No. 05-13-01646-CV, 2014 WL 1022329, at *3 (Tex. App.—Dallas Feb. 21, 2014, orig.
proceeding) (mem. op.); In re Smith, 366 S.W.3d 282, 284 (Tex. App.—Dallas 2012, orig.
proceeding); In re Altec Indus., Inc., No. 10-12-00207-CV, 2012 WL 2469542, at *2 (Tex.
App.—Waco June 22, 2012, orig. proceeding)(mem. op.); In re Oncor Elec. Delivery Co., 355
S.W.3d 304, 306 (Tex. App.—Dallas 2011, orig. proceeding).
                                            25
             2.     The trial court improperly struck Xerox’s third-party
                    claims.

      In a second order, the trial court improperly struck Xerox’s third-party

petition asserting contribution claims against Medicaid providers. Tab A.

      In urging the court to strike this pleading, the State argued (1) that Chapter

33 does not apply and (2) that the TMFPA bars Xerox from joining third parties.

R.78-82. The first argument is already refuted, and the second can be swiftly

rejected.

      The State argued that Xerox cannot join third parties based on the statutory

text in Subchapter C of the TMFPA, which governs “Action[s] By Private

Persons,” a.k.a. qui tam actions. See TEX. HUM. RES. CODE § 36.101.                That

subchapter prohibits “interventions” by “other parties” into qui tam or copy-cat

actions by other parties based on the same underlying facts as those asserted in a

first-filed qui tam action or an existing state action. See id. §§ 36.106, 36.113. But

Xerox’s third-party petition is plainly not a “qui tam action,” and by filing it,

Xerox was plainly not seeking to “intervene” in such an action or bring an action

under Subchapter C. Sections 36.106 and 36.113 simply do not apply.

      Instead, Rule 38(a) allows a defendant to bring into a lawsuit “a person . . .

who is or may be liable to him or the plaintiff for all or part of the plaintiff’s claim

against him.” TEX. R. CIV. P. 38(a). A Rule 38 third-party claim does not involve

an independent theory of recovery; it is a contribution claim derivative of the

                                          26
plaintiff’s claim. See Shoemake v. Fogel, Ltd., 826 S.W.2d 933, 935 (Tex. 1992);

Eslon Thermoplastics v. Dynamic Sys., Inc., 49 S.W.3d 891, 901-02 (Tex. App—

Austin 2001, no pet.). Xerox has a right to bring these third parties into the suit

under Rule 38(a), because the rules of civil procedure apply to the State’s claim.

See TEX. R. CIV. P. 2 (civil rules of procedure “shall govern the procedure … in all

actions of a civil nature” absent exceptions within the rules).

        Because Chapter 33 applies to claims seeking damages under the TMFPA,

this Court should hold that both rulings constitute an abuse of discretion.

II.     THERE IS NO ADEQUATE REMEDY BY APPEAL.

        “The adequacy of an appellate remedy must be determined by balancing the

benefits of mandamus review against the detriments.” In re Team Rocket, L.P.,

256 S.W.3d 257, 262 (Tex. 2008) (orig. proceeding). The benefits of mandamus

review can be critically important, as it allows appellate courts to:

       “preserve important substantive and procedural rights from impairment or
        loss,”

       “give needed and helpful direction to the law that would otherwise prove
        elusive in appeals from final judgments,” and

       “spare private parties and the public the time and money utterly wasted
        enduring eventual reversal of improperly conducted proceedings.”

In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 136 (Tex. 2004) (orig.

proceeding). Indeed, in exceptional cases, mandamus review of significant rulings

“may be essential.” Id.

                                          27
      A.     Appellate Remedies Are Held Inadequate in This Context.

      The adequacy of appellate remedies depends heavily upon the circumstances.

See id. at 137. A car wreck or slip-and-fall suit presents different considerations

from massive fraud cases involving enormous damage models, multiple parties,

and hundreds of thousands of transactions. The mandamus proceedings dealing

with joinder and responsible third party denials recognize that large, complex and

high-stakes cases cannot be tried piecemeal or remedied by ordinary appeal when

the defendant has a right to try all the facts in one proceeding.

      In another complex fraud suit, the Fourteenth Court of Appeals granted

mandamus relief from the denial of leave to join responsible third parties. See

In re Arthur Andersen, LLP, 121 S.W.3d 471 (Tex. App.—Houston [14th Dist.]

2003, orig. proceeding). There, the plaintiffs sued Arthur Andersen and certain top

executives for fraud related to the collapse of Enron, and Arthur Andersen moved

for leave to join Enron employees and major financial institutions as responsible

third parties. Id. at 474-75.

      After the trial court denied its motion, Arthur Andersen sought mandamus

relief. Id. at 476. The court of appeals held that the trial court’s denial of Arthur

Andersen’s motion to join the responsible third parties was an “error of law” that

constituted an abuse of discretion. Id. at 485.




                                          28
       In holding that Arthur Andersen had no adequate remedy on appeal, the

court emphasized several points. One, trying complicated cases piecemeal affects

a defendant’s substantial rights: A defendant facing complex, intertwined facts

“has a substantial right to present the complete set of intertwined facts and issues

germane to [its] claims, to one factfinder, in one proceeding, rather than in two

separate suits that are all but foreordained to generate, collectively, a decision

destined to fail in the appellate process.” Id. at 486 (quoting Jones v. Ray, 886

S.W.2d 817, 822 (Tex. App.—Houston [1st Dist.] 1994, orig. proceeding)

(granting mandamus relief from a severance order)).

       Two, restricting a complex fraud trial to only a few parties in the alleged

scheme is unquestionably harmful, but demonstrating that harm may prove elusive.

The absence of the third parties “would likely profoundly affect the conduct and

outcome of this suit in ways unlikely to be apparent in the appellate record.” Id. at

486.

       Three, when a lawsuit is high-stakes and involves extensive, complicated

facts, even one trial takes a serious toll on judicial and public resources.

Multiplying that toll by two (or more) is unjustified.        “[A]ny separate action

against the third parties, or even a successful appeal in this suit, would result in an

enormous waste of resources.” Id. An enormous waste of judicial resources is a

proper consideration in granting mandamus relief. Id. (citing Jones, 886 S.W.2d at

822 n.9).
                                          29
      Four, defendants could potentially lose their contribution rights because the

law is not settled on whether contribution claims may be brought after judgment.

Id. at 485 (citing Casa Ford, Inc. v. Ford Motor Co., 951 S.W.2d 865, 877 (Tex.

App.—Texarkana 1997, pet. denied), as holding that “Chapter 33 does not permit a

tortfeasor subject to a judgment to bring a post-judgment contribution claim

against a tortfeasor who was not a party to the primary suit”). This issue has not

been decided by this Court or the supreme court. Until it is settled, tort defendants

risk substantial losses if they cannot sue for contribution in the primary suit.

      Based on these kinds of considerations, courts across the state have held that

mandamus relief should be granted because appellate remedies are inadequate

when a defendant is denied leave to designate responsible third parties. Some

courts focus generally on the tendency of an absent responsible third party to

“skew the proceedings” and the unjustified waste of having two trials. See, e.g., In

re Altec Indus., Inc., No. 10-12-00207-CV, 2012 WL 2469542, at *2 (Tex. App.—

Waco June 22, 2012, orig. proceeding) (mem. op.); In re Brokers Logistics, Ltd.,

320 S.W.3d 402, 408 (Tex. App.—El Paso 2010, orig. proceeding) (same).

      Other courts have adopted bright-line holdings that a trial court’s improper

denial of leave to designate a responsible third party can never be adequately

remedied on appeal. See, e.g., In re Lewis Casing Crews, Inc., No. 11-14-00137-

CV, 2014 WL 3398170, at *1 (Tex. App.—Eastland July 10, 2014, orig.

proceeding) (mem. op.) (declining to limit mandamus relief to “extraordinary
                                          30
circumstances”); In re Smith, 366 S.W.3d 282, 289 (Tex. App.—Dallas 2012, orig.

proceeding) (“[A]ppeal is ordinarily an inadequate remedy when a trial judge

erroneously denies a motion for leave to designate a responsible third party without

granting leave to replead.”); In re Oncor Elec. Delivery Co., 355 S.W.3d 304, 306

(Tex. App.—Dallas 2011, orig. proceeding) (“An improper denial of leave to

designate a responsible third party may not be adequately addressed by appeal.”).

       The few decisions declining to grant mandamus relief have arisen in the

personal injury context. E.g., In re Unitec Elevator Servs. Co., 178 S.W.3d 53, 64

(Tex. App.—Houston [1st Dist.] 2005, orig. proceeding) (distinguishing Arthur

Anderson “because here, we are not dealing with the complex, intertwined facts

surrounding the collapse of a major corporation, but a relatively straightforward

personal injury case.”). Small personal injury cases are not analogous here.

       B.     Appellate Remedies Are Inadequate in This Case.

       For several reasons, this is an exceptional case. The facts will span nearly a

decade of Xerox State Healthcare’s performance under a contract (2004 to 2014).

R7, R.17. During that time, TMHP was the claims processor for hundreds of

thousands of prior-authorization requests. R.29. The State alleges that it spent

approximately $1.1 billion on orthodontic services for most of these years, and it is

claiming not just damages for overpayments but also doubling of damages, civil

penalties, fees, interest and costs. R.3-4. The complexity, scale, and stakes of this

suit put it in a class of its own.
                                         31
      The State admits that its allegations against the providers and Xerox are

intertwined: “As a result of the conduct of both Xerox and these providers,” the

State claims it was harmed. R.3 (original petition). The State claims that the

providers submitted fraudulent requests that Xerox fraudulently approved. The

State has thus sued the providers separately for TMFPA claims arising out of the

same set of facts. R.156-81, R.286-308.

      The State’s fraud theory triggers Xerox’s “substantial right to present the

complete set of intertwined facts and issues germane to [its] claims, to one

factfinder, in one proceeding, rather than in two separate suits that are all but

foreordained to generate, collectively, a decision destined to fail in the appellate

process.’” Arthur Anderson, 121 S.W.3d at 486. Having piecemeal trials on the

State’s claims would be fundamentally unfair.

      The trial court recognized that its rulings would create multiple lawsuits.

R.633 (“Separate suits Xerox may bring against third parties will not revisit my

ruling - they result from it.”). But the trial court failed to adequately account for

the unfairness of piecemeal litigation to the parties, whose claims and defenses

would be harmed if not tried in one proceeding before one factfinder. Separate

lawsuits “are all but foreordained to generate, collectively, a decision destined to

fail in the appellate process.” Arthur Anderson, 121 S.W.3d at 486.




                                          32
      Multiple trials and appeals would also be an enormous waste of resources.

The State has acknowledged as much when it sought mandamus relief in the

supreme court, asking for review of a severance order requiring it to try eight

separate lawsuits instead of one. In re State, 355 S.W.3d 611, 615 (Tex. 2011).

In granting mandamus relief, the supreme court emphasized that each lawsuit had

essentially identical factual issues, such that eight separate trials required the

parties to pay “the same lawyers to argue, and the same experts to testify, in eight

separate cases, an issue that could be tried once.” Id. at 614.

      The supreme court further emphasized that an appeal from these trials would

be inadequate because of the “enormous waste of judicial and public resources.”

Id. at 615. It noted that it had granted mandamus relief where:

          An erroneous venue ruling “subject[ed] taxpayers, defendants and all of
          the state’s district courts to meaningless proceedings and trials.” Id.
          (quoting In re Team Rocket, L.P., 256 S.W.3d 257, 262 (Tex. 2008)); and

          An order severing two suits into sixteen had no adequate appellate
          remedies because there would be “no remedy at all for the irreversible
          waste of judicial and public resources that would be required here if
          mandamus does not issue.” Id. (citing In re Masonite, 997 S.W.2d 194,
          196 (Tex. 1999)).

Thus, the public interests of the system itself—not to mention the litigants in the

lawsuits—provided a sound basis for mandamus relief. Id.; see also Prudential,

148 S.W.3d at 137 (mandamus relief considers broader public concerns, such as

“putting the civil justice system . . . to the trouble of grinding through proceedings

that were certain to be ‘little more than a fiction.’”).
                                           33
      Further, multiple separate proceedings without all relevant parties would be

fundamentally skewed. But showing how the outcomes would have been different

would likely prove elusive on appeal. Denying Xerox its right to join or designate

the providers as responsible third parties might “skew the proceedings, potentially

affect the outcome of the litigation, and compromise the presentation of [Xerox’s]

defense in ways unlikely to be apparent in the appellate record.”            Brokers

Logistics, Ltd., 320 S.W.3d at 408 (citing Arthur Anderson, 121 S.W.3d at 486).

Courts have granted mandamus relief in this context in recognition that the trial

would be skewed and it might be too difficult to show harm on appeal in the wake

of a jury verdict. See id.; accord Lewis Casing Crews, 2014 WL 3398170, at *5;

Altec Indus., 2012 WL 2469542, at *2.

      Last, the statutory question presented in this case may evade review entirely

unless reached by mandamus.        No appellate court in Texas has ever decided

whether Chapter 33 applies to a claim under the TMFPA. While Xerox sought to

certify this issue for permissive interlocutory appeal, the trial court declined to

certify it. R.634. And while Xerox believes the ruling is reversible error, it should

not be required to face an expensive array of skewed trials without knowing this

Court’s view of the issue. Meanwhile, this Court will be reviewing on direct

appeal a related issue in the State’s separate lawsuit against the providers, see p. 8

supra, and it would advance both the fairness and efficiency of this entire

landscape of lawsuits to ensure that the decisions are consistent.
                                         34
      For all of these reasons, the benefits of mandamus review far outweigh any

detriments, and Xerox has no adequate remedy on appeal.

                      CONCLUSION AND PRAYER FOR RELIEF

      Xerox respectfully requests that mandamus relief be conditionally granted.

The trial court should be directed to vacate its order striking Xerox’s third-party

petition and to grant Xerox’s motion for leave to designate responsible third parties

under Chapter 33. Xerox prays for any further relief to which it may be entitled.



                                              Respectfully submitted,


By: /s/ Eric J.R. Nichols                  By: /s/ Constance H. Pfeiffer
   Eric J.R. Nichols                          Constance H. Pfeiffer
   State Bar No. 14994900                     State Bar No. 24046627
   Gretchen Sween                          BECK REDDEN LLP
   State Bar No. 24041996                  1221 McKinney St., Ste. 4500
   Christopher R. Cowan                    Houston, TX 77010
   State Bar No. 24084975                  Tel: 713.951.3700
BECK REDDEN LLP
515 Congress Ave., Ste. 1900
Austin, TX 78701
Tel: 512.708.1000

   Robert C. Walters                          C. Andrew Weber
   State Bar No. 20820300                     State Bar No. 00797641
GIBSON, DUNN & CRUTCHER LLP                   301 Congress, Ste. 2000
2100 McKinney Ave., Ste. 1100              KELLY HART & HALLMAN LLP
Dallas, TX 75201                           Austin, TX 78701
Tel: 214.698.3100                          Tel: 512.495.6451


                             COUNSEL FOR RELATORS

                                         35
                         CERTIFICATE OF COMPLIANCE

       1.   This brief complies with the type-volume limitation of
Tex. R. App. P. 9.4 because it contains 8,507 words, excluding the parts of the
brief exempted by Tex. R. App. P. 9.4(i).

      2.    This brief complies with the typeface requirements of Tex. R. App. P.
9.4(e) because it has been prepared in a proportionally spaced typeface using
Microsoft Word 2007 in 14 point Times New Roman font.

      Dated: July 1, 2015.


                                         /s/ Constance H. Pfeiffer
                                         Constance H. Pfeiffer
                                         Counsel for Relators




                         RULE 52.3(J) CERTIFICATION


       I have reviewed the petition and concluded that every factual statement in
the petition is supported by competent evidence included in the appendix or record.


                                         /s/ Constance H. Pfeiffer
                                         Constance H. Pfeiffer




                                        36
                            CERTIFICATE OF SERVICE

      I hereby certify that on July 1, 2015, a true and correct copy of the above
and foregoing Petition for Writ of Mandamus was forwarded to all counsel of
record by the Electronic Service Provider, if registered, otherwise by email, and to
Respondent, by hand delivery, as follows:

            Raymond Winter                                 Reynolds Brissenden
  Chief, Civil Medicaid Fraud Division                 Assistant Attorney General
  OFFICE OF THE ATTORNEY GENERAL                      Office of the Attorney General
            P.O. Box 12548                                   P.O. Box 12548
         Austin, TX 78711-2548                           Austin, TX 78711-2548
  raymond.winter@texasattorneygeneral.gov        reynolds.brissenden@texasattorneygeneral.gov



               Counsel for Real Party in Interest, The State of Texas

               Jason Ray                                      E. Hart Green
      Riggs, Aleshire & Ray, P.C.                Weller, Green, Toups & Terrell, L.L.P.
         700 Lavaca, Suite 920                            Post Office Box 350
           Austin, TX 78701                           Beaumont, TX 77704-0350
           jray@r-alaw.com                                hartgr@wgttlaw.com

                             Counsel for Intervenors,
             Atlas Dental, LP, et al. and Antoine Dental Center, et al.

                            Honorable Stephen Yelenosky
                             Judge, 345th District Court
                             Travis County Courthouse
                                   P.O. Box 1748
                                 Austin, TX 78767

                                      Respondent


                                             By: /s/ Constance H. Pfeiffer
                                                 Constance H. Pfeiffer




                                            37
                     No. __________________

                IN THE THIRD COURT OF APPEALS
                        AUSTIN, TEXAS

IN RE XEROX CORPORATION AND XEROX STATE HEALTHCARE, LLC
             F/K/A ACS STATE HEALTHCARE, LLC,
                                  Relators.

            Original Proceeding from the 53rd District Court,
    Travis County, Texas, Trial Court Cause No. D-1-GV-14-000581
             The Honorable Stephen Yelenosky, Presiding


                     APPENDIX TO
           PETITION FOR WRIT OF MANDAMUS

     TAB
     A       Order Granting Motion to Strike Petitions in Intervention and
             Plea to the Jurisdiction

     B       Order Denying The Xerox Parties’ Motion for Leave to
             Designate Responsible Third Parties

     C       Order Granting State’s Plea to the Jurisdiction and Motion to
             Dismiss Third Party Claims
                 Tab A
Order Granting Motion to Strike Petitions in
 Intervention and Plea to the Jurisdiction
SEP-19-2014    11:59                                                                                  P.003/005
                                                                                   v~ fl°CiliiS t.iOllOiy, ft;X;:~·




                                       CAUSE NO. D-t-GV-14-000581

         THE STATE OF TEXAS,                            §            IN THE DISTRlCT COURT
         Plaintiff,                                     §
                                                        §
         v.                                             §
                                                        §
         XEROX CORPORATION; XEROX                       §            TRAVIS COUNTY, TEXAS
         STATEHEALTHCARE,LLC; ACS                       §
         HEATHCARE LLC, A XEROX                         §
         CORPORATION,                                   §
         Defendants.                                    §            53Ro JUDICIAL DISTRICT




              ORDRR GRANTING MOTION TO STIKE PETITIONS IN INTERVENTION
                           ANO PLEA TO THE .roRISDICTION

                 On Monday, September 15, 2014, the Court heard the State of Texas's Motion to

         Strike Petitions in Intervention and Plea. lo the Jurisdiction. After review and

         consideration of the motions and the responses thereto, the Court finds that the State of

         Texas's Motion to Strike Petitions in Intervention and Plea to the Jurisdiction should be

         GRANTED, and therefore,

                 TT IS ORDERED that the State of Texas's Motion to Strike Pcticions in

         Intervention and Plea to the Judsdiction is GRANTED, and all claims asserted by

         lntervenors (Dr. Stephen Chu; Dr. Richard F. Herrschcr; Atlas Dental, L.L.P.) and Dr.

         Hicu Huynh; Man & CFN Ortho, PLLC, NavaTt'o Orthordontix of fort Worth, PLLC

         Navarro Orthodontix of Irving, PC, Navarro Orthordontix of Edinburg, PLLC, Navarro

         Orthordontix of McAllen.   PLLC~   Navarro Onhordontix, PC, and Dr. Carlos F. Nararro;

         RGV Smiles by Rocky L. Salinas, DDS, PA,           and Dr.Rocky Sakinas; Inna Cantu-

         Thompson, DDS , PC, and Inna CantuThompson; Westmoreland Dental, PA,
                                                                                           P.004/006
SEP-19-201 4   11:69




          Westmoreland Dental of Garland, PC Westmoreland Dental and Othodontics, PA. and

          Scottie H. Nguyen. DDS; and Victor M. Zurita, DDS) in this case are DISMISSED.

                  SIGNED this l81h Day ofSeptember2014.
                   Tab B
Order Denying The Xerox Parties’ Motion for
Leave to Designate Responsible Third Parties
                                                                            Filed in The District Court
                                                                             of Travis County, Texas

                                                                                  APR 15 2015
                                                                            At         c2,:o--:r-      M.
                            CAUSE NO. D-1-GV-14-000581                      Velva L. Prlce, District Clerk
THE STATE OF TEXAS                      §       . IN THE DISTRICT COURT OF
                                        §
             Plaintiff,                 §
                                        §
v.                                      §
                                        §
                                        §        TRAVIS COUNTY, TEXAS
XEROX CORPORATION; XEROX                §
STATE HEALTHCARE, LLC;                  §
ACS HEALTHCARE LLC,                     §
A XEROX CORPORATION,                    §
                                        §
             Defendants.                §        53RD JUDICIAL DISTRICT
                                        §


         ORDER DENYING THE XEROX PARTIES' MOTION FOR LEAVE
              TO DESIGNATE RESPONSIBLE TIDRD PARTIES

      On April 15, 2015, the Court heard the Xerox Parties' Motion for Leave to

Designate Responsible Third Parties filed on March 13, 2015.   A~l parties appeared through


their respective counsel and announced ready.

      Having considered the Motion, response briefs, and arguments of counsel, the Court

ORDERS that the Xerox Parties' Motion for Leave to Designate Responsible Third Parties

is DENIED.

                                                Signed thiS   JS~y of~ 2015

                                                   ~Ll/
                                                Jud~n Y~nosky ,
                                                                             1


                                                     I  /
                   Tab C
Order Granting State’s Plea to the Jurisdiction
 and Motion to Dismiss Third Party Claims
APR-28-2015   14:22           345TH DISTRICT COURT
                                                                                                   P.05/06
                                                                             Fi\ed in The District Court
                                                                              of Travis county, Texas ;iJ---
                                 CAUSE NO. D-1-GN-14-005380
                                                                                   APR 28 .201


   THE STATE OF TEXAS                        §        IN THE DISTRICT COURT OF
                                             §
                 Plaintiff,                  §
                                             §
   v.                                        §
                                             §
   DR. BEHZAD NAZARI, D.D.S.                 §        TRAVIS COUNTY, T~XAS
   D/B/A ANTOINE DENTAL                      §
   CENTER, DR. BEHZAD NAZARI,                §
   DR.WAELKANAAN,                            §
   HARLINGEN FAMILY                          §
   DENTISTRY, P.C., NIKIA,                   §
   PRACTICAL BUSINESS                        §
   SOLUTIONS, SERIES LLC, JUAN               §
   D. VILLAREAL D.D.S., SERIES,              §
   PLLC D/B/A HARLINGEN                      §
   FAMILY DENTISTRY GROUP,                   §
   DR. JUAN VILLAREAL, DR.                   §
   VIVIAN TEEGARDIN, RICHARD                 §
   F. HERRSCHER, D.D.S., M.S.D.,             §
   P.C., DR. RICHARD F.                      §
   HERRSCHER, M & M . .                      §
   ORTHODONTICS, PA, DR. SCOTT               §
   MALONE, DR. DIANA MALONE,                 §
   MICHELLE SMITH, NATIONAL                  §
   ORTHODONTIX, MGMT, PLLC,                  §
   DR. JOHN VONDRAK, RGV                     §
   SMILES BY ROCKY L. SALINAS,               §
   D.D.S. PA, AND DR. ROCKY                  §
   SALINAS                                   §       SJRD JUDICIAL DISTRICT
                                             §
                Defendants.                  §


               ORDER GRANTING STATE'S PLEA TO THE JURISDICTION
                  AND MOTION TO DISMISS THIRD PARTY CLAIMS

         On April 15, 2015, the Court heard the State of Texas's Plea to the Jurisdiction, PJea

  in Bar and Motion to Dismiss Third Party Claims, filed on January 20, 2015. All parties

  appeared through their respective counsel and announced ready.

                                                                                               1
APR-28-2015   14:22          345TH DISTRICT COURT                                              P.06/06
          D-\-6 r0- l Lf-OiY73 go
               ~~ e..- i   of 2..
          Having considered the Pleas, Motion, response briefs, and arguments of counsel,

   the Court ORDERS that the State of Texas's Plea to the Jurisdiction is GRANTED.

   Defendants' counterclaims against the State are DISMISSED with prejudice. The Court

   further ORDERS that the State of Texas's Motion to Dismiss Third Party Claims is also

   GRANTED. Consistent with this Court's rulings in the State's litigation against Xerox,

   the Court finds that the State is entitled to bring this action against defendants to the

   exclusion of other parties. Defendants' third party claims against Xerox are DISMISSED.


                                                                  ~~     11
                                                    Signed thi.z.li day of~ 2015




                                                                                          2



                                                                                      TOTAL P.06
