                                                                                 ACCEPTED
                                                                             03-15-00349-CV
                                                                                     6850247
                                                                  THIRD COURT OF APPEALS
                                                                             AUSTIN, TEXAS
                                                                         9/9/2015 3:10:32 PM
                                                                           JEFFREY D. KYLE
                                                                                      CLERK
                     NO. 03-15-00349-CV

                            In the                           FILED IN
                                                      3rd COURT OF APPEALS
                    Third Court of Appeals                AUSTIN, TEXAS
                          Of Texas                    9/9/2015 3:10:32 PM
                                                        JEFFREY D. KYLE
                                                              Clerk

              SHAMROCK PSYCHIATRIC, P.A.
                                                    Appellant,
                               V.

TEXAS DEPARTMENT OF HEALTH AND HUMAN SERVICES,
         KYLE JANEK, MD, EXECUTIVE COMM’R
       AND DOUGLAS WILSON, INSPECTOR GENERAL
                                         Appellees,


  On appeal from the 126th District Court, Travis County, Texas
                Cause NO. D-1-GV-14-001833


                   APPELLANT’S BRIEF


                             Jason Ray
                             Texas Bar No. 24000511
                             RIGGS & RAY, P.C.
                             506 West 14th Street, Suite A
                             Austin, Texas 78701
                             512 457-9806
                             512 457-9066 – Facsimile
                             jray@r-alaw.com

                             ATTORNEY FOR APPELLANT

             ORAL ARGUMENT REQUESTED
                    IDENTITY OF PARTIES AND COUNSEL

      The following is a complete list of all parties, as well as the names and
addresses of all counsel.

Appellant:                             Shamrock Psychiatric, P.A.


Lead Counsel:                          Jason Ray
                                       State Bar No. 24000511
                                       RIGGS & RAY, P.C.
                                       506 West 14th Street, Suite A
                                       Austin, Texas 78701
                                       Telephone: 512 457-9806
                                       Facsimile: 512 457-9066
                                       jray@r-alaw.com


Appellees:                             Texas Department Of Health And Human
                                       Services (“HHSC”), Kyle Janek, Md,
                                       Executive Comm’r and Douglas Wilson,
                                       Inspector General

Lead Counsel Appellees :               Eugene A. Clayborn
                                       Assistant Attorney General
                                       Deputy Chief, Administrative Law Division
                                       Office of the Attorney General of Texas
                                       P.O. Box 12548, Capitol Station
                                       Austin, Texas 78711-2548
                                       Eugene.clayborn@texasattorneygeneral.gov




Appellant’s Brief
Page | i
                                        TABLE OF CONTENTS

IDENTITY OF PARTIES AND COUNSEL .............................................................i
TABLE OF CONTENTS .......................................................................................... ii
INDEX OF AUTHORITIES.................................................................................... iii
STATEMENT OF THE CASE .................................................................................iv
STATEMENT REGARDING ORAL ARGUMENT ..............................................vi
ISSUE PRESENTED ................................................................................................vi
STATEMENT OF FACTS ........................................................................................ 1

         I. The OIG asks Shamrock to consolidate two administrative
         cases; Shamrock agrees multiple times; the court makes the
         parties’ agreement part of the record. .............................................................. 1

         II. The OIG breaks its promise. ....................................................................... 4

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

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

         Issue: Does mandamus lie to require the OIG to provide Shamrock
         with an administrative hearing on the issue of Shamrock’s
          alleged overpayment? ..................................................................................... 9

         I.       Mandamus is appropriate because Shamrock complied
                  with the statutory requirement when it requested a hearing
                  three times within 15 days of being notified that the OIG
                  would seek to recover an alleged overpayment. ................................... 9

         II.      Mandamus is appropriate since Shamrock preemptively
                  requested a hearing prior to the OIG’s “Final Notice,”
                  so TRCP 306c and/or TRAP 27.2 apply. ............................................ 11

         III.     Mandamus is appropriate because the OIG’s statements
                  and pleadings constitute a binding TRCP Rule 11/ SOAH Rule
                  155.415 agreement that require the OIG to set the overpayment
                  case for a hearing. ................................................................................ 15



Appellant’s Brief
Page | ii
         IV.      Mandamus is appropriate because the OIG’s “withdrawal”
                  of its payment hold claim cannot be used to deprive Shamrock
                  of its right to an overpayment hearing.

CONCLUSION ........................................................................................................ 23
PRAYER ............................................................................................................. 23
CERTIFICATE OF COMPLIANCE ....................................................................... 24
CERTIFICATE OF SERVICE ............................................................................... 25




Appellant’s Brief
Page | iii
                                      INDEX OF AUTHORITIES


CASES

Brighton v. Koss,
      415 S.W.3d 864 (Tex. 2013), reh'g denied (Oct. 18, 2013) .......................... 12

El Paso Elec. Co. v. Pub. Util. Com'n of Texas,
      715 S.W.2d 734 (Tex. App.—Austin 1986, writ ref'd n.r.e.) ..................13, 14

ExxonMobil Corp. v. Valence Operating Co.,
     174 S.W.3d 303 (Tex. App.—Houston [1st Dist.] 2005, pet. denied ........... 20

Fed. Lanes, Inc. v. City of Houston,
      905 S.W.2d 686 (Tex. App.—Houston [1st Dist.] 1995, no writ ................. 20

Janek v. Harlingen Family Dentistry, P.C.,
      451 S.W.3d 97, 99 (Tex. App.—Austin 2014, no pet.) ................................. 22

Scott-Richter v. Taffarello,
      186 S.W.3d 182 (Tex. App.—Fort Worth 2006, pet. denied) ....................... 20

Texas Mut. Ins. v. Ledbetter, 251 S.W.3d 31 (Tex. 2008)....................................... 21

Trudy's Tex. Star, Inc. v. City of Austin,
      307 S.W.3d 894 (Tex. App.-Austin 2010, no pet.) ....................................... 18


TEXAS ADMINISTRATIVE CODE

1 TAC 155.155 ...................................................................................................14, 16

1 TAC 155.415 ......................................................................................................... 17

1 TAC 155.503(c)(1)............................................................................................ 6, 22

STATUTES

TEX GOV’T CODE 531.1201(a) ............................................................................ 11
Appellant’s Brief
Page | iv
                          STATEMENT OF THE CASE

       Shamrock Psychiatric, P.A. (“Shamrock”) sued the Texas Health and

Human Services Commission (“HHSC”), Kyle Janek, Executive Commissioner

and Douglas Wilson, Inspector General (collectively “OIG”) seeking a Writ of

Mandamus to compel the OIG to comply with a Rule 11 agreement that promised

Shamrock a contested case administrative hearing. (CR 3).

       Shamrock maintains that the parties’ written communications constitute a

proper request for a hearing under TRCP 306a and 306c; in the alternative

Shamrock maintains the OIG’s affirmations made in the administrative record at

prehearing conferences establish a binding Rule 11 agreement to set and hear

Shamrock’s Medicaid overpayment hearing. (CR 33). The OIG maintains that

despite its statements to Shamrock and to the administrative law judge agreeing to

set and hear the case, Shamrock’s failure to subsequently memorialize its request

for the hearing constituted a default which deprived it and the State Office of

Administrative Hearings of jurisdiction to hear the contested case. (CR 70).

       The trial court denied Shamrock’s petition seeking mandamus and dismissed

the suit for lack of jurisdiction. (CR 205)

       Shamrock appeals that judgment and seeks an order requiring the OIG to set

Shamrock’s overpayment hearing.



Appellant’s Brief
Page | v
                STATEMENT REGARDING ORAL ARGUMENT

         Appellant Shamrock requests oral argument.




                               ISSUE PRESENTED

Issue:         Does mandamus lie to require the OIG to provide Shamrock with an

               administrative hearing on the issue of Shamrock’s alleged

               overpayment?




Appellant’s Brief
Page | vi
                                      STATEMENT OF FACTS1

I. The OIG asks Shamrock to consolidate two administrative cases; Shamrock
agrees multiple times; the court makes the parties’ agreement part of the
record.

         Appellant Shamrock is a Medicaid provider of psychiatric services. In

January 2013, the HHSC instituted a “payment hold” against Shamrock. (App. Ex.

2; CR 93, App. Ex. 7). A payment hold is a pre-hearing confiscation of all future

Medicaid payments due to a provider, despite the provider’s ongoing participation

in the Medicaid program. The payment hold against Shamrock was issued pursuant

to what the Office of the Inspector General (a division of the HHSC, hereinafter

“OIG”) called a “credible allegation of fraud” regarding Shamrock’s past Medicaid

billings. The HHSC placed a 100% payment hold on Shamrock’s reimbursement.

(CR 93). On February 4, 2013, Shamrock requested an expedited administrative

hearing concerning the payment hold, and the OIG docketed the case at the State

Office of Administrative Hearings (SOAH). (App. Ex. 2). The only issue to be

determined at the payment hold hearing was whether the OIG could demonstrate a

credible allegation of fraud to maintain a payment hold against Shamrock. (CR

110).




1
 SOAH Order No. 11, at App. Ex 2., sets out the undisputed factual and procedural history of this case. Shamrock
believes the SOAH Order contains all of the facts necessary to dispose of this appeal, including a recitation of the
parties’ written agreements. SOAH Order No. 11 is the law of this case.

Appellant’s Brief
Page 1
       In September 2013, while the payment hold case was pending at the SOAH,

the OIG completed its investigation of Shamrock and gave Shamrock preliminary

notice that the OIG intended to seek recovery of Medicaid payments that had

allegedly been overpaid to Shamrock as a result of Shamrock’s alleged fraudulent

billing. (App. Ex. 2; CR 102). The OIG’s overpayment allegation created a right to

a separate contested case hearing at the SOAH for Shamrock; the issue at an

overpayment hearing is whether Shamrock was actually overpaid for work

(whether through fraud or for some more benign reason or confusion regarding

program requirement, such as an accidental billing mistake), and if so, what

amount Shamrock should repay the State. (App. Ex. 6; CR 128).

       Since Shamrock’s overpayment hearing would be, as a practical matter, a

broader review of Shamrock’s actions regarding the exact same Medicaid patients

and billing questions that were already at issue in the payment hold hearing, the

OIG’s counsel, on September 17, 2013, proposed to Shamrock that the two

hearings—the payment hold hearing and the final overpayment hearing—be

combined. (App. Ex. 3). It is noteworthy that the OIG approached Shamrock about

combining the hearings; the OIG’s request was a considerable benefit to the OIG

because Shamrock’s payment hold hearing was already set to be tried on

November 5-7, 2013. (CR 113). Agreeing to combine the two hearings would

mean that the November 2013 payment hold setting would have to be continued


Appellant’s Brief
Page 2
into mid-2014, and Shamrock would remain under a 100% payment hold until that

time.

        In the spirit of cooperation and to promote judicial economy, Shamrock’s

counsel agreed to the OIG’s request on October 4, 2013. (App. Ex. 2; App. Ex. 3).

In response to a second OIG email on October 7, 2013 that reiterated the OIG’s

intent to set the overpayment hearing for a merits hearing “in about 90 days”,

Shamrock agreed for a second time to combine the two hearings and stated “we

may need more than 90 days for the [overpayment] hearing.” (App. Ex. 2; App.

Ex. 3).

        On October 9, 2013, the OIG filed a status report with the SOAH; that

pleading put the SOAH judge on notice of the parties agreement:

        Counsels for [OIG and Shamrock] have agreed to consolidate both the
        payment hold and the overpayment into one proceeding in the interest of
        judicial economy. Starting September 1, 2013, Petitioners have the option to
        have their overpayment hearing adjudicated in either Health and Human
        Services Commission Appeals or the State Office of Administrative
        Hearings. Shamrock has opted to proceed to the overpayment hearing there
        at SOAH. At this point, without the court’s objection, HHSC-OIG would
        like to simply file an amended pleading reflecting the consolidated issues. . .

(App. Ex. 4). On October 21, 2013, the SOAH Judge accepted the agreement,

setting a pre-hearing conference on the consolidated matters and noting:

        [T]he parties have agreed to consolidate the payment hold and overpayment
        issues into one proceeding.




Appellant’s Brief
Page 3
(App. Ex. 5, SOAH Order No. 5; App. Ex. 2, SOAH Order No. 11). On October

28, 2013, both parties again represented to the SOAH judge on the record that they

had agreed to consolidate the overpayment and payment hold cases. (App. Ex. 2).

This was the third time Shamrock had evidenced its request to have a hearing on

both matters, and the fourth time the OIG had admitted that Shamrock had

requested a hearing on both matters. (App. Ex. 2). On October 29, 2013, the

SOAH judge acknowledged the agreement, continued the payment hold hearing

and reset the matter so that the OIG could consolidate its payment hold pleadings

and its overpayment pleadings. (App. Ex. 2).

II.    The OIG breaks its promise.

       On November 25, 2013, the OIG sent Shamrock a Final Notice of

Overpayment, which was the OIG’s final statement regarding what it would seek

in the overpayment hearing. (App. Ex. 6). Because: 1) Shamrock had preemptively

requested the overpayment hearing, and 2) the parties had agreed to consolidate the

cases at the SOAH, and 3) the OIG had repeatedly indicated in its pleadings and on

the record that the overpayment hearing was going to be heard along with the

payment hold hearing, Shamrock did not respond to the OIG’s Final Notice with a

fourth request for the overpayment hearing. (App. Ex. 2, SOAH Judge finding that

“Shamrock relied on OIG’s representations to its detriment…”).




Appellant’s Brief
Page 4
        Despite its agreement to do so, the OIG did not amend its SOAH pleadings

to include the overpayment allegations.2 It remained silent until January 3, 2014;

the OIG then filed a Motion to Dismiss the Payment Hold case, claiming any

dispute regarding Shamrock’s alleged overpayment was moot because Shamrock

had not requested an overpayment hearing within 15 days after the OIG’s Final

Notice. (App. Ex. 8). The OIG’s Motion to Dismiss further claimed that

Shamrock’s alleged $1,611,709 debt3 to the State was a “final debt,” meaning the

debt was indisputable and not subject to challenge in any court or proceeding.

(App. Ex. 8).

        Caught off-guard by the OIG’s reversal, Shamrock quickly responded to the

OIG’s Motion to Dismiss. (App. Ex. 8). At first, the SOAH judge denied the OIG’s

Motion to Dismiss, citing the parties’ previous agreements and explaining “for

Petitioner [Shamrock] to have requested a hearing when one was already set would

have accomplished nothing because the parties had already agreed to consolidate

the two cases for hearing”; the SOAH judge consolidated the payment hold and

overpayment cases and set them for a March hearing. (App. Ex. 9, SOAH Order 8).

The OIG responded by lifting/dismissing the payment hold case and sweeping


2
  It may be of interest to this Court that the OIG’s about-face coincided with a change in its lead counsel. Mr.
Enrique Varela represented the OIG and made all agreementsand OIG statements through October 9, 2013. Mr.
Steven Johnson represented the OIG from mid-October 2013 through November. Mr. Kevin Heyburn was lead
counsel in January 2014 when the OIG claimed Shamrock had failed to request a hearing on the OIG’s overpayment
allegations.
3
  That debt was calculated to be $1,611,709 in the Final Notice.

Appellant’s Brief
Page 5
Shamrock’s held funds toward the satisfaction of the $1.6 million debt, which it

claimed was final and unappealable. (App. Ex. 2). Ultimately, the SOAH judge

reconsidered her earlier denial, and found she did not have the power to make the

OIG abide by its earlier promises:

       [E]ven though Shamrock relied on OIG’s representations to its detriment,
       the ALJ cannot proceed to a hearing. OIG has withdrawn the payment hold
       issue, and it has neither separately referred an overpayment claim to SOAH
       regarding Shamrock nor amended its pleadings to assert an overpayment
       claim. The ALJ does not have authority to require OIG to amend its
       pleadings to assert an overpayment claim in this case. As a result, there is no
       pending case for which the ALJ could receive evidence and issue a Proposal
       for Decision. Therefore, the ALJ dismisses this case from SOAH’s docket
       pursuant to 1 TAC 155.503(c)(1).

(App. Ex. 2).

       Although the OIG “withdrew” its claims for the temporary payment hold, it

did not release the funds to Shamrock. Instead, the OIG kept the funds and applied

them toward Shamrock’s alleged debt, which the OIG and the State now consider

final. Shamrock filed a motion to reconsider the dismissal at the SOAH. (CR 165)

The OIG opposed the motion; the SOAH judge denied the motion to reconsider.

(CR 196, RR Def. Ex. 20).

       On June 12, 2014, Shamrock filed an Original Petition in the 126 th District

Court of Travis County with a subsequent Brief in Support of Writ of Mandamus

and Enforcement of Rule 11 Agreement. That Court issued an Order Granting

Defendants’ Motion to Dismiss for Lack of Jurisdiction on May 6, 2015. (CR 205).


Appellant’s Brief
Page 6
       Neither the OIG, nor the HHSC, nor any other State agency has issued a

final order finding that Shamrock has a $1.6 million debt to the State; however, the

OIG has placed a warrant hold on Shamrock through the State Comptroller.




Appellant’s Brief
Page 7
                       SUMMARY OF THE ARGUMENT

       The OIG is committing fraud on Shamrock and its own trier of fact, the

SOAH. The OIG approached Shamrock and asked Shamrock to combine its two

pending contested cases. When Shamrock agreed to the OIG’s request, the OIG

memorialized the agreement in emails with Shamrock, in its own pleadings, and in

its statements in open court. The OIG then laid behind the log, ignoring the parties’

agreement and its on-the-record avowals. Having assured both Shamrock and the

SOAH multiple times that it would consolidate the administrative cases, it then

pulled the rug out from under both, asserting an absurd argument that Shamrock

had failed to properly request the very hearing that the OIG itself had solicited.

       This Court should not reward this sort of legal chicanery. Whether this Court

looks to 1) the OIG’s unilateral request to combine the cases, or 2) to Shamrock’s

multiple agreements to have its overpayment hearing pooled with its pending

payment hold hearing, or 3) to case law, the Rules of Civil Procedure and the Rules

of Appellate Procedure that permit Shamrock to prematurely file its appeal, or 4) to

TRCP Rule 11 and the SOAH Rule 155.415, which both require that a party be

held to their agreements, the result in this case is clear: Shamrock is entitled to its

overpayment hearing. The OIG asked Shamrock to agree (it did), then it asked the

SOAH to approve the consolidation (the SOAH agreed and continued the pending

hearing). Those actions prevent the OIG from now claiming that Shamrock failed


Appellant’s Brief
Page 8
in any way to request a hearing. From the moment the OIG first approached

Shamrock and the parties agreed to merge the cases, there was never any doubt as

to Shamrock’s intent and written requests to challenge the OIG’s claims that

Shamrock had been overpaid. No degree of deception or dishonesty by the OIG

should be allowed to rob Shamrock of its right to a hearing.

                                   ARGUMENT

Issue:         Does mandamus lie to require the OIG to provide Shamrock with
               an administrative hearing on the issue of Shamrock’s alleged
               overpayment?

I.       Mandamus is appropriate because Shamrock complied with the

statutory requirement when it requested a hearing three times within 15 days

of being notified that the OIG would seek to recover an alleged overpayment.

         Shamrock timely requested an appeal of the OIG’s indication it would seek

to permanently withhold the funds subject to the temporary payment hold. Section

531.1201(a) of the Government Code requires that a provider “request an appeal

under this section not later than the 15th day after the provider is notified that the

commission or the commission’s office of inspector general will seek to recover an

overpayment or debt from the provider.” TEX GOV’T CODE§ 531.1201(a)(emphasis

added). Shamrock complied with this requirement. Shamrock requested an appeal

on 10/4/13, 10/7/13, and 10/9/13, all of which were within 15 days of the OIG’s

10/2/13 e-mailed notice of an intent to seek recovery of an overpayment. (App. Ex.


Appellant’s Brief
Page 9
2 (SOAH Order 11); App. Ex. 3 (emails)). As early as September 17, 2013, the

OIG attorney on the case knew that Shamrock wanted an overpayment hearing,

because the OIG began its set-up with an e-mailed offer to consolidate the cases,

never questioning Shamrock’s intent or written requests to appeal the OIG’s

overpayment action. The relevant chronology is as follows:

       10/2/13- By e-mail, the OIG gives notice of its intent to pursue an
       overpayment hearing. This e-mail was “notifi[cation] that the commission or
       the commission’s office of inspector general will seek to recover an
       overpayment or debt from the provider.”

       10/4/13- 1st Notice of Intent to Appeal (2 days after 10/2/13 notice).
       Shamrock responds by e-mail, expressly requesting that the OIG set the
       overpayment case at SOAH, consolidate the payment hold and overpayment,
       and closing with a specific request to the OIG to “Let me know when you
       receive this email and if I need to do anything.”

       10/7/13- 2nd Notice (5 days after 10/2/13 notice). Shamrock responds to the
       OIG’s statement that the OIG “could be ready for a hearing on the
       overpayment issue in about 90 days” by clarifying “we may need more than
       90 days for the hearing,” and again offering “Let me know if there is
       anything I can do to assist you in docketing/consolidating the cases.”

       10/9/13- 3rd Notice (7 days after the 10/2/13 notice). The OIG files a status
       report correctly stating that “Shamrock has opted to proceed to the
       overpayment hearing there at SOAH.”

(App. Ex. 2 (SOAH Order 11); App. Ex. 3 (emails)).

       When the OIG gave notice of its intent to seek recovery of an alleged

overpayment, Shamrock timely responded. Therefore, the OIG’s refusal to provide

Shamrock with an administrative hearing is a violation of its ministerial duty. This



Appellant’s Brief
Page 10
court should reverse the district court and order the OIG to set Shamrock’s

overpayment case for a hearing.

II.    Mandamus is appropriate since Shamrock preemptively requested a

hearing prior to the OIG’s “Final Notice,” so TRCP 306c and/or TRAP 27.2

apply.

       The OIG claims that the only Notice of Overpayment that matters in this

case is the OIG’s “Final Notice of Overpayment ” letter sent November 25, 2013.

(App. Ex. 6). That is not what Texas Government Code section 531.1201 states.

The OIG claims that Shamrock’s earlier requests for a hearing on the overpayment

allegations were ineffective, and that Shamrock was required to respond after the

November 25, 2013 letter with yet another request for the already-agreed-to

overpayment hearing. Shamrock disagrees with the notion that the OIG can create

a moving target by simply sending one notice after another, each acting like a reset

button, and each requiring that Shamrock repeat its appeal request or suffer a

complete default. But assuming the November 25, 2013 “Final Notice of

Overpayment” letter was the only OIG notice that triggers the Texas Gov’t Code §

531.1201 right to a hearing in this case, Shamrock’s October appeal requests do

not release the OIG from its ministerial duty to docket the case at the SOAH.




Appellant’s Brief
Page 11
       The Final Notice of Overpayment contains language that makes the OIG’s

overpayment determination appear to be self-effectuating unless a hearing is

requested:




(App. Ex. 6). While the Final Notice is not a “final order,” the language in it

appears to have the same effect as a final order; that is, the OIG’s overpayment

allegation will become final unless challenged through an appeal. Thus, the case

law and procedural rules for such final orders are instructive.

       Under Texas Rule of Civil Procedure 306a, a premature notice of appeal is

deemed to be filed on the day of, but subsequent to, a challenged judgment.

Brighton v. Koss, 415 S.W.3d 864, 866 (Tex. 2013), reh'g denied (Oct. 18, 2013)

(“When a party prematurely files a notice of appeal, our procedural rules treat the

premature notice as filed subsequent to the order or judgment to which it applies.

Tex.R.App. P. 27.2; see also Tex.R. Civ. P. 306c (treating prematurely filed

motions for new trial as filed subsequent to the signing of the judgment)”). This

Court has applied Rule 306c to administrative cases, such as when a regulated

entity provided intent to appeal a final order before the final order was actually

Appellant’s Brief
Page 12
entered. El Paso Elec. Co. v. Pub. Util. Com'n of Texas, 715 S.W.2d 734, 738

(Tex. App.—Austin 1986, writ ref'd n.r.e.).

       The facts of El Paso are analogous to the facts in this case. In El Paso, the

Public Utility Commission issued a final order, and El Paso Electric filed a motion

for rehearing, which is a mandatory prerequisite to appealing the case from the

agency to District Court. Id. at 735. The Commission granted in part El Paso

Electric’s   First Motion for Rehearing and modified the final order. El Paso

Electric filed a second motion for rehearing on that amended final order; the

Commission again granted in part the second motion for rehearing and again

amended the final order. Id. El Paso Electric did not file a third motion for

rehearing after the issuance of the Commission’s last amended final order. Id.

When El Paso Electric filed its appeal in Travis County District Court,

       the Commission successfully argued that by failing to file a third
       motion for rehearing, El Paso Electric failed to satisfy the APTRA
       jurisdictional requirements for judicial review. The pertinent provision
       in APTRA requires a party to file a motion for rehearing within 15
       days after the date of rendition of a final decision or order “in writing
       or stated in the record.” APTRA, § 16(a), (e) (emphasis added).
       According to the Commission, this provision is mandatory and
       jurisdictional. Under this argument, El Paso Electric's second motion
       for rehearing filed on December 4 was not timely since it was
       filed before the December 7 order, and the district court therefore
       properly concluded that it was without jurisdiction to review the
       Commission's order.




Appellant’s Brief
Page 13
Id. (emphasis in original). The Commission’s position in El Paso is exactly what

the OIG argued to the SOAH in this case. This court rejected such stale

justification, holding,

       it is appropriate and reasonable to turn to the rules and case law of
       civil practice to consider the effect of a prematurely filed motion for
       rehearing. Rule 306c of the Tex.R.Civ.P.Ann. (1985) provides that
       “[n]o motion for new trial ... shall be held ineffective because
       prematurely filed; but every such motion shall be deemed to have
       been filed on the date of but subsequent to the date of signing of the
       judgment the motion assails....” The effect of the rule is plain: When a
       motion for new trial is filed before the judgment is signed, the motion
       is regarded as filed on the date the judgment was signed. Magnolia
       Petroleum Co. v. Klingeman, 242 S.W.2d 950 (Tex.Civ.App.1951,
       writ ref'd).

Id. at 738. The analogy with Rule 306a and the early filing of an appeal is even

more compelling here since this case involves the beginning of the administrative

process as opposed to the courts’ review of agency action after an agency hearing.

Stated differently, the fact that Shamrock had repeatedly requested (and the OIG

had repeatedly acknowledged and accepted its receipt of Shamrock’s request for)

an overpayment hearing satisfies the statutory language and falls squarely within

the scenarios contemplated by Tex.R. Civ. P. 306c and Tex.R.App. P. 27.2.

       Like El Paso, at issue are the agency’s duty to give notice of its claims in the

first place and the provider’s right to seek a hearing/appeal on that notice.

Shamrock’s early appeal does not harm the agency in any way. Like El Paso, the

OIG did not change what it sought from Shamrock between the October 2, 2013


Appellant’s Brief
Page 14
emailed notice and the November 25, 2013 “Final Notice.” Nor, for that matter, did

the OIG “Final Notice” change the basic nature of its claims from what it sought in

the temporary payment hold filed in February 2013. Shamrock’s three

appeal/hearing requests made in October 2013 appeal effectively put the OIG on

notice of Shamrock’s request for a hearing, and under TRCP 306c and TRAP 27.2,

were effective. As a result, this court should reverse the district court and order the

OIG to set Shamrock’s overpayment case for a hearing.

III.   Mandamus is appropriate because the OIG’s statements and pleadings

constitute a binding TRCP Rule 11/ SOAH Rule 155.415 agreement that

require the OIG to set the overpayment case for a hearing.

       In reversing herself and dismissing the case, the SOAH ALJ concluded that

“[t]he ALJ does not have authority to require OIG to amend its pleadings to assert

an overpayment claim in this case.” (App. Ex. 2). Shamrock respectfully disagrees.

Although the SOAH ALJs do not have the authority to tell the OIG to initiate cases

or claims, the SOAH ALJs certainly have the authority to rule on matters already

before them. Here, both the payment hold and the final overpayment issue were

before the SOAH (1) because the OIG status report was arguably sufficient to raise

the “final notice” claims and constitute a pleading and (2) because the parties’

agreement was enforceable as a Rule 11 agreement.




Appellant’s Brief
Page 15
       The SOAH was already exercising its jurisdiction over the temporary

payment hold case. The only purpose of the “final notice” was to attempt to make

permanent the OIG’s ability to withhold the money at issue. The payments that the

OIG sought to recover are the same. The OIG basis for alleging the money paid

was an “overpayment” remained the same. The only distinction was that the pre-

hearing payment hold required proof to a credible allegation of fraud. The claims

otherwise remained the same. That is why the OIG indicated it would simply

amend its pleadings to shift from a pre-hearing “payment hold” to a full hearing on

the merits regarding what, if anything, Shamrock was required to repay the State.

       The OIG’s status report put the matters at issue. The report reads like a

pleading: the OIG “is seeking recoupment of payments.” (App. Ex. 4). Although

the OIG indicated it would amend, the OIG status report did not say it “would

seek” recoupment. Pleadings in the SOAH cases need not take any particular form.

The SOAH Rule 155.5(19) defines a pleading as “[a] filed document that requests

procedural or substantive relief, makes claims, alleges facts, makes legal argument,

or otherwise addresses matters involved in the case.” The only purpose of the

OIG’s pleading amendment was to attempt to make permanent the OIG’s ability to

withhold the money that was already being withheld under the payment hold; the

SOAH already had jurisdiction over that payment hold matter.             Thus, the

documents on file were sufficient to place the matter before the SOAH ALJ.


Appellant’s Brief
Page 16
       For that reason, the SOAH ALJ already had jurisdiction over both matters.

As noted in Order No. 5:

        [T]he parties have agreed to consolidate the payment hold and overpayment
       issues into one proceeding.

(App. Ex. 2, SOAH Order No. 11, quoting SOAH Order No. 5). Because the only

issue was the consolidation of the overpayment hearing, the SOAH ALJ had the

power to enter Order No. 5 and to proceed with both cases. See 1 TAC 155.155

(allowing the SOAH judge to consolidate cases with common questions of fact).

       The SOAH Rule 155.415 is the SOAH rule that is analogous or parallel to

Texas Rules of Civil Procedure Rule 11. Rule 155.415 provides:

       No agreement will be enforced unless it is in writing, signed, and filed with
       SOAH or entered on the record at the hearing or prehearing conference.

1 TAC 155.415; see also Tex. R. Civ. P. 11 (“Rule 11”). Under Rule 155.415, The

SOAH ALJs have the power and authority to “enforce” the parties’ agreements.

The October emails between the OIG and Shamrock constitute a binding

agreement because they were entered on the record at a prehearing conference

(App. Ex. 2). Likewise, the OIG’s agreement in its pleadings (App. Ex. 4) and as

entered in the record by the SOAH judge (App. Ex. 2) constitute a binding

agreement.

       As a result, contrary to the SOAH ALJ’s concern that she lacked the power

to order the OIG to amend its pleadings, she most certainly did have the authority


Appellant’s Brief
Page 17
to do so since the OIG had entered its agreement to do so on the record. In addition

to the e-mail exchanges and judicial admissions in motions, the OIG had filed its

status report, which was in writing, which the OIG counsel had signed, and which

incorporated the OIG’s agreement to amend the existing contested case in response

to Shamrock’s request for a hearing on the overpayment. The parties had also

announced the agreement in open hearings. The parties’ agreement was also made

part of the record through the SOAH Order No. 5 and through the representations

made at the prehearing conference set in Order No. 5. (App. Ex. 5)

       Because Rule 155.415 has the same effect as TRCP Rule 11, cases applying

Rule 11 are instructive. Litigants’ Rule 11 agreements are contracts relating to

litigation. Trudy's Tex. Star, Inc. v. City of Austin, 307 S.W.3d 894, 914 (Tex.

App.-Austin 2010, no pet.) The terms of this Rule 11/Rule 155.415 agreement are

readily apparent from the OIG’s e-mails, status report, judicial admissions in

motions, and statements to the ALJ in open court. The backbone of the agreement

was that Shamrock would receive a SOAH overpayment hearing.

       The parties agreed to consolidate the cases, without qualification or

prerequisite. The terms are straightforward, as stated by the OIG counsel’s 10/7/13

e-mail. (App. Ex. 3). That correspondence from the OIG confirmed Shamrock’s

understanding of the agreement, and clarified it by explaining, “I [the OIG]

will…docket a separate case then consolidate or just file the overpayment case in


Appellant’s Brief
Page 18
the same case number as the payment hold (my preference).” (App. Ex. 2; Order

No. 11, describing the e-mails). With the OIG’s utter and unreserved agreement

repeated so often in and on the administrative record, it seems ridiculously

unnecessary to point out that the OIG never stated—to anyone, but especially to

the SOAH judge—that Shamrock needed to take action to preserve its right to the

combination “payment hold-overpayment hearing” that the OIG has begun

soliciting since October 2013. The OIG’s 10/9/13 subsequent status report is even

more clear-cut:

       “Counsels for [OIG and Shamrock] have agreed to consolidate both
       the payment hold and the overpayment into one proceeding in the
       interest of judicial economy…HHSC-OIG would like to simply file an
       amended pleading reflecting the consolidated issues. However, the
       parties have not had time to do specific discovery regarding
       overpayment issues. The parties would like input from the court on
       how to proceed.”

(App. Ex. 4). What does it mean when the OIG states, “The parties would like

input from the court on how to proceed.”? Shamrock asks this court: How to

proceed with what? Was the OIG asking SOAH how to proceed with the payment

hold case? Obviously not; that case was already set for hearing in the next 30 days.

So the only reasonable answer is that the OIG was asking for direction regarding

how to proceed in the overpayment case.

       The fact that the OIG was asking the SOAH judge how to amend its own

pleadings, and how to proceed with discovery in the overpayment case, necessarily


Appellant’s Brief
Page 19
indicates that the OIG was not waiting for any separate or affirmative action by

Shamrock. The OIG, at least the legal counsel at that time, projected to both SOAH

and Shamrock that the impetus was on the OIG, not Shamrock, to move forward

with the case by amending the pleadings and beginning discovery. Simply put, the

OIG knew Shamrock wanted an overpayment hearing, the OIG agreed to provide

that hearing, and the OIG was already considering how to proceed with discovery

in that hearing when it asked the court for direction on how to proceed.

       Given the OIG’s on-the-record statements and actions, the only conclusion

that reasonable minds could have reached was that the OIG was set to move

forward with amending its pleadings and combining its claims. That is the very

essence of a Rule 11 agreement.

       A trial court has a ministerial duty to enforce a valid Rule 11 agreement.

Scott-Richter v. Taffarello, 186 S.W.3d 182, 189 (Tex. App.—Fort Worth 2006,

pet. denied) citing ExxonMobil Corp. v. Valence Operating Co., 174 S.W.3d 303,

309 (Tex. App.—Houston [1st Dist.] 2005, pet. denied); Fed. Lanes, Inc. v. City of

Houston, 905 S.W.2d 686, 690 (Tex. App.—Houston [1st Dist.] 1995, no writ)

(holding that when Rule 11 prerequisites were met, trial court had ministerial duty

to grant relief in strict accordance with parties' agreement). Because there was a

valid and unambiguous “Rule 11” agreement, the ALJ was duty-bound to enforce

its provisions, as was the OIG. The OIG has the same the ministerial duty because


Appellant’s Brief
Page 20
administrative hearings are, technically, always in front of the agency; the SOAH

simply acts as the neutral fact-finder. So the ministerial duty ultimately falls to the

agency, since the SOAH judges operate only at the request of the agency that

invokes them. The ALJ was incorrect in her conclusion that she did not have the

authority to require the OIG to amend its pleading to assert an overpayment claim

in this case or to simply proceed on matters already before her. In fact, the ALJ is

required to do so, pursuant to the parties’ agreement. Likewise, the OIG has a

ministerial duty to abide by the promises made to Shamrock and the SOAH judge.

As a result, this court should reverse the district court dismissing the case for want

of jurisdiction and instruct the district court to order the OIG to set Shamrock’s

overpayment case for a hearing at the SOAH.

IV.    Mandamus is appropriate because the OIG’s “withdrawal” of its

payment hold claim cannot be used to deprive Shamrock of its right to an

overpayment hearing.

       It does not matter that the OIG dismissed its temporary payment hold

proceeding. It had no absolute right to do so if doing so would prejudice

Shamrock’s interests. Like a non-suit under Texas Rules of Civil Procedure Rule

162, a party can non-suit its claims, but such nonsuit will not affect pending claims

for affirmative relief. Texas Mut. Ins. v. Ledbetter, 251 S.W.3d 31, 37 (Tex. 2008).

Here, Shamrock had appealed the OIG payment hold and sought return of its


Appellant’s Brief
Page 21
money. Without an order requiring the return of the Shamrock money withheld

pursuant to the payment hold, the OIG could not simply dismiss its payment hold

claims. The OIG simply kept money withheld under the temporary payment hold,

and used it in partial satisfaction of the alleged overpayment. That kind of bait and

switch is beyond its authority.

       “A judge may dismiss a matter from the SOAH's docket with or without

prejudice if a moving party withdraws its entire claim.” See 1 TAC 155.503(c)(1).

When Shamrock asked for a payment hold hearing, it requested relief from the

HHSC’s payment hold. The only relief that could have been granted to Shamrock

was that the payment hold could have been lifted; that relief carries with it the

requirement that the money that had been withheld by the OIG would be returned

to Shamrock. See Janek v. Harlingen Family Dentistry, P.C., 451 S.W.3d 97, 99

(Tex. App.—Austin 2014, no pet.). But when the OIG withdrew its payment hold

claim against Shamrock, it did not return Shamrock’s money that had been

withheld under the payment hold. Most importantly, the purpose of a temporary

payment hold is to secure the OIG’s financial position pending the overpayment

hearing, for which the OIG shoulders its burden of showing that the money in fact

constituted an “overpayment.” The two proceedings are inextricably linked. By

withdrawing its payment hold claim but keeping the money, the OIG prevented

Shamrock from getting any relief. As a result, this court should reverse the district


Appellant’s Brief
Page 22
court order dismissing the case for want of juisidiction and instruct the OIG to

either set Shamrock’s payment hold case for a hearing or return the previously

withheld funds to Shamrock.

                                 CONCLUSION
       The OIG cannot be allowed to induce a party to act through its repeated

promises—in communications with Shamrock, in its pleadings at the SOAH, and

in its on-the-record statements before the SOAH judge—that the parties have

agreed to have an overpayment hearing, and then assert that there was no

agreement. It is equally duplicitous for the OIG to proclaim to the SOAH in

October 2013 that there is no impediment to combining related administrative

cases, but then claim in January 2014 that Shamrock defaulted on a deadline that

prevents either case from going forward.

                                    PRAYER

       For these reasons, Shamrock prays that this Court reverse the trial court

order dissimissing the case for want of jurisdiction and instruct the trial court to

issue a Writ of Mandamus requiring the OIG to docket its overpayment claims at

the SOAH, as requested by Shamrock.




Appellant’s Brief
Page 23
                                    Respectfully submitted,


                                    ____________________________________
                                    Jason Ray
                                    State Bar No. 24000511
                                    RIGGS & RAY, P.C.
                                    506 West 14th Street, Suite A
                                    Austin, Texas 78701
                                    512 457-9806
                                    512 457-9066 – Facsimile




                     CERTIFICATE OF COMPLIANCE

       I certify that this Brief complies with TRAP Rule 9.4 and contains 5,420

words in Times New Roman typeface of 14-point.


                                    ______________________________
                                    Jason Ray




Appellant’s Brief
Page 24
                         CERTIFICATE OF SERVICE

       I hereby certify that a true and correct copy of the foregoing document was

served by eservice on September 9, 2015 to the following:

Eugene A. Clayborn
Assistant Attorney General
Deputy Chief, Administrative Law Division
Office of the Attorney General of Texas
P.O. Box 12548, Capitol Station
Austin, Texas 78711-2548
Eugene.clayborn@texasattorneygeneral.gov




                                      ______________________________
                                      Jason Ray




Appellant’s Brief
Page 25
                  Appendix to No. 03-15-00349-CV


                       SHAMROCK PSYCHIATRIC, P.A.
                                                            Appellants,
                                       V.

       TEXAS DEPARTMENT OF HEALTH AND HUMAN SERVICES,
                KYLE JANEK, MD, EXECUTIVE COMM’R
              AND DOUGLAS WILSON, INSPECTOR GENERAL
                                                Appellees,


Ex. 1- Order Granting Motion to Dismiss for Lack of Jurisdiction
CR 205

Ex. 2- SOAH Order No. 11 (recounts procedural history of the case)
RR, Plaintiff’s Ex. 9, same as Defendant’s Ex. 15

Ex. 3- E-mails between OIG & Shamrock in September - October 2013
RR Plaintiff’s Ex. 3, same as Defendant’s Ex. 8

Ex. 4- OIG’s status report indicating Shamrock’s cases should be consolidated
RR Plaintiff’s Ex. 5, same as Defendant’s Ex. 9

Ex. 5- SOAH Order No. 5
RR Plaintiff’s Ex. 6, same as Defendant’s Ex. 10

Ex. 6- Final Notice of Overpayment
RR Defendant’s Ex. 11

Ex. 7- Notice of Payment Hold
RR Defendant’s Ex. 2

Ex. 8- OIG Motion to Dismiss Payment Hold
RR Defendant’s Ex. 13

Ex. 9- SOAH Order No. 8 (denying OIG’s Motion to Dismiss)
RR Defendant’s Ex. 14
          Appendix to No. 03-15-00349-CV
Exhibit 1- Final District Court Order Granting Motion to
            Dismiss for Lack of Jurisdiction

                        CR 205
                                                      DC    BK15127 PG189
                                                                                Filed in   !he District Court
                                                                                 of Trav1s County, Texas

                                                                                     MAY 0 6 2015 _<o/(
                                                                               At
                                                                               Velva L p
                                                                                        l/r/() ~          _Mo
                                               CAUSE NO. D-1-GN-14-001833             0
                                                                                            0
                                                                                                 o
                                                                                           nee, Drstrict Clerk

    SHAMROCK PSYCHIATRIC                                    §       IN THE DISTRICT COURT OF
    CLINIC, P.A.,                                           §
         Plaintiff,                                         §
                                                            §
    v.                                                      §       TRAVIS COUNTY, TEXAS
                                                            §
    TEXAS DEPARTMENT OF HEALTH                              §
    AND HUMAN SERVICES,                                     §
    KYLE JANEK, MD, Executive Comm'r                        §
    and DOUGLAS WILSON,                                     §
    Inspector General,                                      §
          Defendants.                                       §       126TH JUDICIAL DISTRICT

                         ORDER GRANTING DEFENDANTS' MOTION TO
                             DISMISS FOR LACK JURISDICTION

              On the        gTH    day of January, 2015 came on to be considered Defendants'

    Motion to Dismiss for Lack of Jurisdiction in the above-styled and numbered cause.

              The Court, having considered the pleadings, evidence, and arguments of the

    parties, is of the opinion that Defendants' Motion to Dismiss for Lack of Jurisdiction,

    is GRANTED, in all respects.

              IT IS THEREFORE ORDERED, ADJUDGED, AND DECREED, that

    Defendants' Motion to Dismiss for Lack of Jurisdiction is GRANTED, in all

    respects. All other claims and further relief not expressly granted herein is denied.

              SIGNED this               (;?       day of   M~

Case # D-1-G N-14-00 1833

lllllllllllllllllllllllllllllllllllllllllllllllllllllll
004014303




                                                                                                            205
      Appendix to No. 03-15-00349-CV
        Exhibit 2- SOAH Order No. 11
        (recounts procedural history of the case)

RR, Plaintiff’s Ex. 9, same as Defendant’s Ex. 15
                             SOAH DOCKET NO. XXX-XX-XXXX


 SHAMROCK PSYCHIATRIC                          §       BEFORE THE STATE OFFICE
 CLINIC, P.A..                                 §
      Petitioner                               §
                                               §
 v.                                            §                      OF
                                               §
 TEXAS HEALTH AND HUMAN                        §
 SERVICES COMMISSION OFFICE                    §
 OF INSPECTOR GENERAL,                         §
        Respondent                             §      ADMINISTRATIVE HEARINGS

                              ORDERN0.11
              RECONSIDERING AND GRANTING MOTION TO DISMISS

       During a prehearing conference oo February 18, 2014, State Office of Administrative
Hearings (SOAH) Administrative Law Judge (AU) Sarah G. Ramos considered the parties
arguments regarding whether this case should be dismissed. Attorney Wendi Akins Pastorini
represented Shamrock Psychiatric Clinic, P.A (Shamrock), and attorneys Kevin Heyburn, Karen
Pettigrew, and Amanda Patterson represented the Texas Health and Human Services
Commission's (HHSC's) Office ofinspector General {OIG).


       Resolution of the issue regarding dismissal requires consideration of two issues, the
''payment hold issue," and the ..recoupment" or ..overpayment issue." OIG has withdrawn the
payment hold in1posed on Shamrock. In addition,. although OIG committed to both Shamrock
and SOAH that it would amend its pleadings to inolude the recoupment issue, OIG has not
amended its pleadings and now requests dismissal of this case. 11rerefore, the ALl bas no
petition or complaint on whicb to conduct a contested case hearing and finds the case should be
dismissed from SOAH's docket.


A.     Payment Hold Issue Filed


       OIG filed a notice of hearing and complaint on February 26, 2013, alleging that HHSC
acted within its authority in suspending payment to Shamrock based on alleged coding and
SOAH DOCKET NO. XXX-XX-XXXX                              ORDERN0.11                                   PAGE2


billing vjolations in the Medicaid program. As authority, OIG cited Texas Government Code
§ 531.102(6)(2)(2011 vers.), which provides:


                  (2) In addition to other instances authorized under state or federal law, the
          office shall impose without prior notice a hold on payment of chums for
          reimbursement submitted by a provider 1o compel production of records, when
          requested by the state's Medicaid fraud control unit, or on receipt of reliable
          evidence that the circumstances giving rise to the hold on payment involve fraud
          or wilful misrepresentation under the state Medicaid program in accordance with
          42 C.F.R. Section 455.23, as applicable. The office must notify the provider of
          the hold on payment in accordance with 42 C.F.R. Sectfon 4SS.23(b). 1

B.         OIG•s Motion to Dismiss


           On January 3 1 2014, OIG filed a motion to dismiss the payment hold issue without
prejudice and asserted that it would proceed to recoup funds that allegedly had been overpaid.
OIG asserts the payment hold issue is now moot because OIG has withdrawn its notice of
hearing and complaint on the payment hold issue.


           Further, OIG asserts the recoupment issue was never docketed at SOAH. With its motion
to dismiss, OIG attached the final notice of overpayment sent 10 Shamrock on
November 25, 2013. According to the letter, OIG detennined that Shamrock had received an
overpayment of $1,611,709. OIG included a compact disc with its calculations and extrapolation
methodology on the recoupment. The letter further stated, in part:


           Tms SANCTION WILL BECOME FINAL AND UNAPPEALABLE UPON
           THE EXPIRATION OF 15 CALENDAR DAYS AFTER RECEIPT OF THE
           NOTICE OF FINAL SANCTION IF NO TIM:ELY REQUEST FOR
           APPEAL HAS BEEN RECEIVED BY HHSC-OIG.2

1
 OIO also cited a repealed version of an HHSC rule, Texas Administrative Code (TAC) Title 1. § 371.1617 (200.5).
The rule W1l5 amended effective October 14, 2012. The repealed rule described types of violations that enabled
HR.SC to take action against a medical provider. The amended rule addresses "Finality and Collections~ of
sanctiona.
1
    Emphasis in the original.
SOAH DOCKET NO. 5?9-13-2658                       ORDERN0.11                              PAGE3




OIG contended that Shamrock did not file a request for appeal within 15 days of ~ceivirJg the
notice. Therefore, OIG moved to dismiss the case from SOAH's docket, asserting Shamrock•s
debt on the overpayment issue had become final.


       In Order No. 8, the AIJ denied OIG's motion to dismiss. At the prehearing conference,
OIG re-urged its motion, asserting Shamrock did not timely appeal the recoupment issue. OIG
cited Texas Government Code § 531.1201 in support of its position.           The statute; entitled
"Appeal of Detemtlnatjon to Recoup Overpayment or Debt," became effective September l,
2013, and provides:


              (a) A provider must request an appeal under this section not later than the
      15th day after the date the provider is notified tbat the commission or the
      commission's office of inspector general will seek to recover an overpayment or
      debt from the provider. On receipt of a timely written request by a provider who
      is the subject of a recoupment of overpayment or recoupment of debt arising out
      of a fraud or abuse investigation. the office of inspector general shalt file a
      docketing request with the State Office of Administrative Hearings or the Health
      and Human Services Commission appeaJs division, as requested by the provider,
      for an administrative hearing regarding the proposed recoupment amount and any
      associated damages or penalties. Tue office shall file the docketing request under
      this section not later than the 60th day after the date of the provider's request for
      an administrative hearing or not later than the 60tb day after the completion of the
      informal resolution process, if applicable.



               (d) Following an adnlinistrative hearing under Subsection (a), a provider
      who is the subject of a recoupment of overpayment or recouprnent of debt arising
      out of a fraud or abuse investigation may appeal a final administrative order by
      filing a petition for judicial review in a district court in Travis County.

C.     Shamrock's Arguments


       Shamrock argued that OIG's motion to dismiss should be denied. As Shamrock noted,
OIG represented that it would amend the payment hold pleadings to include the recoupment
SOAH DOCKET NO. 529-U-265!1                         ORDERN0.11                             PAGE4


issue. In addition, Shamrock pointed out that a hearing was already set to consider both issues
when OIG sent tho Jetter regarding recoupment. Tho following sununarizes events related to this
issue:

          1/20/13: Shamrock received a "Notice of Payment Hold."

          2/4/13: Shamrock filed a written request with OIG pursuant to l TAC§ 37l.1709(d)
          [related to payment bolds] for "an expedited infonnaJ review and an expedited
          adminis1rative contested case hearing," pursuant to 1TAC§371.1615.

          2/19/13: The case was docketed at SOAH.

          2/26/13: A notice of hearing was filed regarding the payment hold issue,

          911113: Senate Bill 1803, Acts of May 14, 2013, R.S., enacting Texas Government Code
          §§ .531.120 and 531.1201, became effective. The section requires OIG to provide written
          notice of any proposed recoupment of an overpayment mid requires a provider to request
          an appeal not later than 15 days after being notified that the OIG will seek to recover an
          overpayment.

          9/17/13: OIG's attorney sent an email to Shamrock's attorney, stating, "Here is wha.1 I
          propose. We send you the final notice of overpayment and we set the overpayment case
          [recoupment issue) at SOAH, which won't !tave a hearing date until Spring 2014, then we
          now can consolidate both case[s]."

          1014/13: Shamrock's attorney infonned OIG that he had discussed OIG's proposal with
          his client who had agreed to consQlidate the cases. "Let's go ahead with the notice of
          overpayment, set ft at SOAH, and consolidate both cases. Let me know when you
          receive this email and ifl need to do anything," be wrote. 3

         IOn/13: OIG's attorney wro1e Shamrock's attorney, ..I will check with SOAH to see
         whether they want us to docket a !ieparate case then consolidate or just file the
         overpayment case ln the same case number as the payment hold (my preference), I
         believe we could be ready for a hearing on the overpayment issue in about 90 days.'"'

          10/7/13; Shamrock's attorney wrote OIG's attorney, indicating tbat more than 90 days
          may be needed.



3
    Emphasis added.
4
    Emphasis added.
SOAII DOCKET NO. XXX-XX-XXXX                               ORDER NO. 11 ·                               PAGES


          10/9/13: OIG's attOmey filed a status report with SOAH, stating, "In addition to the
          payment hold, Respondent [OIG] is seeking recoupment of payments, which HHSC-OIG
          alleges [SharnrockJ was not entitled to receive. [OIG's] authority to recoup those
          overpayments is codified under ... Texas Government Code Chapter 531; Chapters 32
          and 36 of the Texas Human Resources Code; and TeKaS Administrative Code Chapter
          371, Subchapter G." Further, OIG's attorney stated, ..Counsels for [OIG and
          Shamrock] have agreed to consolidate both the payment hold and the overpayment
          into one proceeding Jn 1he interest of judiclal economy. Starting September 1, 2013.
          Petitioners have the option to have their overpayment hearing adjudicated in either Health
          and Human Services Commission Appeals Division or the State Office of Administrative
          Hearings. Shamrock has opted to proceed to the overpayment hearing there at
          SOAH. At this point. without the court•s objection, HHSC-OIG would Uke to
          simply me o amended pleading re.Oecting the consolidated Issues.•..s

          10121/13: SOAH Order No. 5 set a prehearing conference for 10/28/13 based on the
          parties request to consider how to proceed with discovery pertaining to "the
          overpayment issues in light of the fact that the parties have arreed to consolidate the
          payment hold and overpayment issues into one proceeding."

          10/28113: Prehearing conference. The parties represented that consoJidation of the
          payment hold and recou.p ment issues would save time and expense because issues were
          based on the same facts.

          10129/13; SOAR Order No. 6 was issued and stated, .. [u]pon parties• agreement, the case
          was continued from November 5-7, 2013, to March 3, 2013, for 5 days."

          1212/13: Shamrock received "Final Notice of Overpayment" from DIG.

          1/2114: Shamrock filed appeal with SOAH and HHSC on overpayment issue.

          1/3/14: OIG filed a Motion to Dismiss Without Prejudice. OIG states, "HHSC-OIG is
          withdrawing its February 26, 2013, Complaint and Notice of Hearing 1iled with the State
          Office of Administrative Hearings." The motion also noted Shamrock's late filing of the
          request for an appeal of the recoupment issue and asserted that the issue is now moot
          under 1TAC§37l.1617(aX1).

          1/6/14: Shamrock filed a Response to the Motion to Dismiss and argued that the parties
          agreed that the payment-hold bearing would be consolidated with the overpayment


j   Emphasis added.
6
    Emphasis added.
7
    The hearing was not recorded because the ALI did not properly start the recorder. The AIJ's recollections are
based on her notQ.
SOAR DOCKET NO. XXX-XX-XXXX                       ORDER.NO. U                             PAGE6


       hearing. Shamrock asserted the parties verified their agreement at the prehearing
       conference on 10128/13 and the case was continued accocdingly.

        l/S/14: OIG fiJed a reply to Shamrock's Response to Motion to Dismiss and asserted the
       original request for appeal in February 2013 does not apply to the final notice of
       overpayment that Shamrock received in December 2013. The request for appeal must be
       filed after the final notice of overpayment is received, OIG asserted. Even if parties
       agreed to consolidate hearing. Shamrock was still required to file its notice ofappeal after
       receiving the final notice of overpayment. OIG argued that Government Code
       § 531.l20l(a) is mandatory and that because OIG has withdrawn the payment hold claim,
       no issues remain pending before SOAH.

       1113/14: Shamrock responded to OIG's reply and provided documentation showing OIG
       agreed to consolidate the payment hold and recoupment hearings. and SOAH had set lhe
       consolidated hearing on 3/13/14.

       1114114: SOAH Order No. 8 denied OIG's Motion to Dismiss. The order stated that
       Petitiooer•s email [of 10/4/13] gave OIG notice of its intent to appeal even before OIG
       sent the final notice of overpayment, the parties agreed to consolidate the payment hold
       and recouprnent issues, and OIG committed to amend its pleadings to include
       recoupment.

       2/5/14: OIG flied "Notice of Lift of Payment Hold." OIG asserted the payment hold was
       no longer in effect, OIG would offsot the amounts due through recoupment against
       current payments that were not being withheld. OIG also re-argued its view that
       Shamrock filed an untimely appeal on the recoupment issue.

       Based on the facts listed in the chronology, the ALl recognizes that OIG asked Sharmock
to consolidate the payment hold and recoupment issues, represented to SOAR that the parties
had agreed to consolidate both issues into one proceeding in the interest of judicial economy,
represented that it preferred to amend its payment hold pleading without getting another docket
number, and asked for a continuance so that both issues could be heard together. Some months
later, OIG sent formal notice of the recoupment to Shamrock. Shamrock did not file an appeal
because it bad relied on OIG's commitment to amend its pleadings and the ALJ had already set
the hearing on both issues.


       However. even though Shamrock relied on OIG's representations to its detrimentt        th~

ALJ cannot proceed to a hearin~IG h~ withdrawn the payment hold issue, and it has neither
                                    ,,
                                   ,,
SOAH DOCKET NO. XXX-XX-XXXX                      ORDERNO.U                             PAG.E7


separately referred an overpayment claim to SOAH regarding Shamrock nor amended its
pleadings to assert an overpayment claim.) Tbe ALJ does not ba ve authority to require OIG to
amend its pleading to assert an overpayment claim in this case. As a result, there is no pending
case for which the AU could receive evidence and issue a Proposal for Decision Therefore, the
AU dismisses this case from SOAH's docket pursuant to 1 TAC§ 155.503(c)(l).


       SlGNED .M:arch 3, 2014.




                                    SARAH G. RAMOS
                                    ADMINISTRATIVE LAW JUDGE
                                    STA TE OFFICE OF ADMINISTRATIVE HEARINGS
            Appendix to No. 03-15-00349-CV
Exhibit 3- E-mails between OIG & Shamrock in September -
                       October 2013

      RR Plaintiff’s Ex. 3, same as Defendant’s Ex. 8
ul:lll       I .C.       f'-1 U/ •.:lOJ.l   ocnnsmer-   a.   MCl\tnney, !-'\;                                7132245008                        p.7

                           Gmall ~ Shamrock                                                                                           Page I of3




                                                                                                         Son Tran < sonvutran@gmail.com>



                         ./'Shamrock
                     /      7 messages
              ,,,.·
         /
                             Varela,Enrlque (HHSC) < Enrique.Vsrela@hhsc.slate.tx.us>                                Tue, Sep 17. 2013 at B:07
                                                                                                                                               AM
                            To: •son Tran (sonvulrari@gmall.com)" <sonwtran@gmall.ccm>

                               Hello Son,



                               Hope this email finds you well. We have the a ment hold case co           u   rett t    and I wanted to
                               check In with you. Here !s Whal I propose                      ·                                        Iflfi\
                               ~Mfilifit~lfiffilMB;}vhich won't have a hearing elate until Spring 2014, !:hen we now can -~·-·
                               consolidate both cases. Since the new leglsfa!lon came down, provlclera are now entitled to have the
                               overpayment hearing ai SOAH as opposed to HHSC appeals. The catch Is that the providers now have to
                               pay half {slate pays other haff) ofthe cost to have II at SOAH. I'm not sure what that cos! Is but I can't
                               imagine that our hearing would be longer than one full day. The len~ of lhe heating determines the cosL
                               Let me know your thoughts. Give me a cail, if you !Ike. Thanks.


                               Enrique M. Varela
                               Associate Counsel
                               Texas Health &. Human Services Commission

                               Office of Inspector General

                               P.O. Box 85200, MC 1358
                               Austin, Texas 78708-5200

                               512-491-405.2

                               512-833-6484    rax
                               enrlque. varela@hhsc.state.tx.us


                               The lnformallon contained In this e-mail transmission Is confidential. It may also be subject to privileges
                               retatrng to attomey-c!lent communfcations, work product, or proprietary !nfurmatlon. This infurmallon is
                               intended for the exclusive use of the addressee(s) named above. If you are not the Intended mcipfent, you
                               are hereby notlflecl that any use, dlacclosure, dissemination, distribution (other than to !he addressee(s)
                               named above}, copying. or the laking of any action because of this lnformallon ls strictly prohlbtted. If you
                               have received !his information In error, pfrHise immediately notify us by relum e-mail and delete this
                               message.




                           Son Tran < sonvutran@gmall.com>                                                        Fri, Sep 20, 2013 at 2:43 PM




                         https:/lmai Lgoog!e.comlrnail/u/O/?ui=2&amp;ik=a6fb Ie(}l! Ie&nmp;view=<pt&amp;q=endqu... 1/3/2014
V<!rl   I~   l't VI ,.:iop           ocnntlloer a. w1ct\mney 1 t-'t;                          7132246008                      p.8

              Gmail - Shamrock                                                                                          Page 2 of3


                To: "Varela,Enrique (HHSC)" <Enrique.Varela@hhsc.state.tx:Js>

                  Sorry for the la!e response. Let me tafk with the client end I Will let you know next week. Thanks.
                  [Ou.lll::l te•t hmdecJ

                  Son Tran
                  Ah:l~S"lmOOh'.S"Tl~AX
                  Attomeyi; .J.\t Law
                  440 Lo:.ii5lana St.. Suite 50.'.l
                  Houstoi, Texas 17002
                  Tel: (713) 236-7300
                  Fa>: [713) 224·6008

                                                    ·--------·------------·------·---
               Varela,Enrique (HHSC) < Enrfque.Vatela@hhsc.slale.t>:.us> Wed, Oct 2, 2013 at 8:57 AM
               To: Son Tran <sonvutran@gmall.com>
               Cc: "Johnson,Steve (HHSCt <Sfeve.Johnson@hhsc.state.tx.ua>

                  Good morning Son, I wanted to reach out and see If you W•!re able.to determine whether yourdlent
                  would prefer to go dfrec:tly to the overpayment hearing. I also wanted to let you know that I am leaving
                  DIG on the October 11, 2013. Steve Johnson, who I have cr.'d here, Is 1he lltlgatlon team lead here and
                  will be assigning th ls case to another attorney asap. Thank you and I enjoyed working with you on this
                  case.


                  Enrique Varela



                 From: Son Tran [malrtc:sonvutran@gmail.com]
                 Sent: Friday, September 20, 20:13 2:44 PM
                 To: Varela,Ennque (HHSC)
                 Subject: Re; Shamrock




               Son Tran < sonvutran@gmall.com>                                                     Thu, Oct 3, 2013 at 4:53 PM
               To: •vare!a,Enrique (HHSC)" <Entique.Varefa@hhac.state.tx.;,is>
               Cc: ''Johnson,Steve (HHscr <Sleva.Johnson@hhsc.state.lx.us>, Wlndl Pastorin! <wlnlaW@swbell.net>
                 HI Enrique, I am still waiting on a decision by Dr. Ravichandran. It has been such a pleasure working w!th
                 you. Best or luck to you and Iha !w!nsl
                 ro11~1ee lll>l 11;eo1111J




               Son Vu Tran< sonvutran@gmaB.com>                                              Fri, Oct 4, 2013 at 3:44 PM
               To: "Varela,Enrfque (HHSCt <Enrlque.Varela@hhsc.state.tx.us>
               Cc: "Johnson.Steve (HHSC)" <S!eve.Johnson@hhsc.state.tx.us>, Windi Paatorlnl <wlnlaW@swbell.net>
                 Mr. Varela and Mr. Johnson. I havediscurmed your proposal with my client and he has a~.'~
                 i!li£~00.~~..i2!!iifW. set It at SOAH, and consolidate both cases. Let me know when you
                 receive this emall and If I need to do anythlng. Thank you.

                 Son Tran
                 Attorney At Law
                 440 Louisiana St., Suite 800
                 Houston, TeKas 77002




             https:/lrnail.google.com/mail/uJO/?ui=2&amp;ik=a6fb I e().J I e&amp;vie:w""pt&amp;q=enriqu... 11312014
vcn I   r £..   J""t VI   .VUfJ           OvWl!$IU01 0..   IVICl\mney,   t-'V                           7132246008                        p.9

                  Gmail - Shamrock                                                                                                Page J of3


                      Tel: (713) 236-7300
                      Fax: (713) 224-6008
                      JQU'11<!'".l !mt hit:-;lcn)



                   Johnson, Stave (HHSCJ < Steve.Johnson@hhsc.state.tx.us>                                    Mon, Oct 7, 2013 at 7:08 AM
                   To: Son Vu Tran <sonvutran@gmail.com>, "Varela.Enrique (HHSC)" <Enrique. Varefa@hhsc.slale.bc.us>
                   Cc: Wlndl Pastorinl <Wlnlaw@swbell.net>, "Peltlgrew,Karen (HHSC}" <Karen.Pettlgraw@hhsc.state.t>e.us>

                      Mr. Tran,


                     As Enrique rner?icned he wlll be leavlng our department this wei·I<. I am writing to introduce myself and to let yQu
                     know ti-at I received this email I will check with SOAH to ,ee wh !ther they want us tc darlcet a separate c3s.e then
                     consolida:e or just file the overpayrn1mt case In 1he same case nt.mber as the payment held Crnv preference). 1
                     betreve we coufd be ready ro~ a hearli:g on the overpayment issu•! in about 90 days. Oo yoti ha·•e en idea of when
                     you and your dlenl would want lo have that hearing? We havi! 1.everal open dat!!.5 lrt January, 2014.



                     thanks and I look forward to working with yo~· to reso;ve thfs ma·:ter.



                     Steve J.




                     From: Son Vu Tran [maifto:sonvutran@gmail.com]
                     Sent: Friday, .October 04, 2013 3:44 PM
                     To: Varela,Enrlque (HHSC)
                     Cc: lohnson,steve (HHSC); Wlndi Pastorlnl
                     Subject: Re: Shamrock

                     fQucletl 1'11<1 h1tidim)



                  Son Vu Tran < sonvutran@gman.com>                                           Mon, Oct 7, 2013 at 10:58 AM
                  To: "Johnson,Steve (HHSC)" <Stmre.Johnso.n@hhsc.state.tx.us>
                  Cc: "Varela,Enrique (HHscr <Enrlque.Vamta@llhsc.state.bc.us>, Wind! Pastorfnl <wlnlaw@swbe!l.net>,
                  "Peltigraw,Knren (HHSC)" <Karen.Petngrew@hllsc.eta!e.bi.us>

                     Mr. Johnson, we may need more than 90 days forthe hearing. Ms. Pastorinl and r wlll call yr.tu lalerthls
                     week to discuss the case. We look forward to personally meeting you. Le: me know if there Is anything I
                     can do to assist you in docketing/cansorldatlng the c.:ises.

                     Son Tran
                     Attorney At law
                     440 Loulslena S!., Suite 800
                     Houston, Texas                 noo2
                     Tel: (713) 236-7300
                     Fax: (713) 224-6008
                     [Ouote<J 1...1 1ldden;




                ht!ps:!/mail.google.e-0m/mail/u/Ol?uf=2&amp;ik=a6fb t eOL le&amp;view==pt&amp;q=enriqu... I/3/20 l 4
           Appendix to No. 03-15-00349-CV
Exhibit 4- OIG’s status report indicating Shamrock’s cases
                 should be consolidated

     RR Plaintiff’s Ex. 5, same as Defendant’s Ex. 9
5129336484                                                                        11:44:0Sa.m.    10-09-2013        215




                                          SOAR DOCKET NO. XXX-XX-XXXX
                                          HHSC-OIG CASE NO. P200904944

             SHAMROCK PSYCHIATRIC                                §      BEFORE THE STATE OFFICE
             CLINIC, P.A.                                        §
             Petitioner                                          §
                                                                 §
             vs.                                                 §      OF
                                                                 §
             TEXAS HEALTH AND HOMAN                              §
             SERVICES COMMISSION OFFICE                          §
             OF INSPECTOR GENERAL                                §      ADMINISTRATIVE HEARINGS
             Respondent                                          §

                                        RESPONDANT'S STATUS REPORT


             TO THE HONORABLE ADMINISTRATNE LAW JUDGE:

                    COMES NOW Respondent, Texas Health and Human Services Commission, Office of

             Inspector General ("HHSC~OIG" or "Respondent"), through their attorney Enrique Varela, lllld

         1mes this Status Report and would respectfully submit 1¥e following:
                    I                                   I                    I

                                                            1.

                    This case is currently set for hearing on Tuesday, November 5-7, 2013. The purpose of

             the hearing ls to determine whether a program violations exists to warrant the suspension. of

             payment (payment hold) to Shamrock Psychiatric Clinic (''Petitioner'' or "Shamrock"), pursuant

             to 1 Tex. Ad.min. Code §371.1617 (2005). In addition to the payment hold, Respondent is

             seeking recoupment of payments, which HHSC-OIG alleges Petitioner was not entitled                to

             receive. Respondent's authority to recoup those overpayments is codified under the following:

             Texas Government Code Chapter 531; Chapters 32 and 36 of the Texas Human Resource's Code;

             and Texas Administrative Code Chapter 371, Subchapter G.

                                                            2.                          EXHIBIT
512833641!4                                                                                       11:44:17a.m.     10-09-2013     315




                         Counsels for Respondent and Petitioner have agreed to consolidate both the payment hold

              and the overpayment into one proceeding in the interest of judicial economy.                             Starting

              September l, 2013, Petitioners have the option to have their overpayment hearing adjudicated in

              either Health and Human Services Cornm.lssion Appeals Division or the State Office of

              Administrative Henrings. 1 Shamrock has opted to proceed to the overpayment hearing there at

              SOAH. At this point. without the court's objection, HHSC~OIG would like to simply file an

              amended pleading reflecting the consolidated issues. However, the parties have not had time to

              do specific discovery regarding overpayment issues. The parties would like input from the court

              on how to proceed.

                                                                        3.

                         THEREFORE, Respondent and Petitioner request a pre~trial conference, prior to the

              November 5, 2013 trial setting already scheduled, to obtain court's opinion on thls matter.
                                                                    r


                                                                             Respectfully submitted,

                                                                              Douglas C. Wilson
                                                                              Inspector General

                                                                              Joy Sparks
                                                                              Acting Deputy Inspector General
                                                                              Chi,~1/~
                                                                              Enrique M: Varela
                                                                              State Bar No. 24043971
                                                                              11101 Metric Blvd.
                                                                              Building I
                                                                              Austin,.Texas 78758.
                                                                              (512) 491-2075 Phone
                                                                              (512) 833-6484 Fax


              1 Act of   May 14, 2013, 83rdLeg., RS., S.B. 1803, {to be codified 111 Tex. Gov't Code Ann. §531.102).
      Appendix to No. 03-15-00349-CV
         Exhibit 5- SOAH Order No. 5

RR Plaintiff’s Ex. 6, same as Defendant’s Ex. 10
                        2013/10/21 12:38:25                   2     /3




                             SOAH DOCKET NO. XXX-XX-XXXX

 SHA..'l\tIROCK PSYCHIATRIC                     §       BEFORE THE STATE OFFICE
 CLINIC, P.A.,                                  §
         Petitioner                             §
                                                §
 v.                                             §                        OF
                                                §
 TEXAS HEALTH AND HUMAN                         §
 SERVICES COMMISSION OFFICE                     §
 OF INSPECTOR GENERAL,                          §
      Respondent                                §      ADMINISTRATIVE HEARINGS

                                  ORDERN0.5
                        SETTING PREHEARING CONFERENCE

       In a status report filed October 9, 2013, the parties requested a prehearing conference to
consider how to proceed with discovery pertaining the overpayment issues in light of the fact
that the parties have agreed to consolidate the payment hold and overpayment issues into one
proceeding. The Administrative Law Judge sets a prehearing conference for October 28, 2013,
at 10:00 a.m. at the State Office of Ad1W11istrative Hearings.       The ALJ will conduct the
prehearing conference by telephone conference call.

       SIGNED October 21, 2013.


                                      J.(i.A.cJl. A. Q~~.
                                     SARAH G. RAMOS
                                     ADMINISTRATIVE LAW JUDGE
                                     STATE OFFICE OF ADMINISTRATIVE HEARINGS
  Appendix to No. 03-15-00349-CV
Exhibit 6- Final Notice of Overpayment

       RR Defendant’s Ex. 11
                        OFFICE OF INSPECTOR GENERAL
                            TEXAS HEALTH & HUMAN SERVICES COMMISSlON

                                                                                            DOUOl..l\S C. WILSON, CPA, CIO
                                                                                                 INSPECTOR GENERAL

November25, 2013



                           ****FINAL NOTICE OF OVERPAYMENT****


Via CMRRR No.7003 2260 0003 2558 2243
Shamrock Psychiatric Clinic, P.A.
c/o Akins Brooks Tran
ATTN: Windi Akins Pastorini
440 Louisiana Street, Suite 800
Houston, Texas 77000

Re:      Shamrock Psychiatric Clinic, P.A. TPI 0826224; NPI I 891985271
         HHSC-OIG Case No. P200904944

Dear Provider:

The Texas Health and Human Services Commission Office of Inspector General (HHSC-OIG)
conducted an investigation of claims submitted by you, Shamrock Psychiatric Clinic, P.A.
("Shamrock" or "Provider"), for payment under Medicaid or other HHS programs, during the
approximate time period from on or about February l, 2007 through November 30, 201 l.

Pursuant to l Tex. Adrnin. Code § 37 l.171(c) (2) (2012), HHSC-OIG hereby determines that
you received an overpayment in the amount of $1,611,709.00. This amount includes any funds
paid in excess of the amount to which you were entitled under § 1902 of the Social Security Act
or other state or federal statutes for a service or item furnished within the Medicaid or other HHS
programs. A compact disc containing the calculations and extrapolation methodology relied
upon by HHSC-OIG to detemtine the overpayment amount is enclosed. 1



1The compact disc is p11Ssword protected. The password will be forwarded to you or your a!lorney by 11 separllle
email or you may request another method to receive lhe password.
Shamrock Psychiatric Clinic, P.A.
November 25, 2013
Page 2


Specifically, HHSC-OIG has determined that:

During the approximate time period from February l, 2007 through November 30, 2011, and at a
time when Shamrock knew or should have known the following were violations, Shamrock
claimed or caused to be claimed and received payments for:

       a. Higher levels of services or treatments than that which were documented in patients'
          records;
       b. Services or treatments that were not supported by adequate documentation; and
       c. Services or treatments that were not provided in accordance with standard of care,
          including, but not limited to: utilization of medications that are not FDA approved for
          clinical situations and not a community accepted practice for specific patient age
          groups; Jack of informed consent documentation; and formatted symptom
          descriptions within patient reports that did not provide specific characteristics of
          individual patients.

The above-referenced conduct constitutes a violation of one or more of the following: J Teic
Admin. Code§ 371.1617(1)(A), (B), (E) and (J), (2)(A), (5)(A) and (G) and (6)(A) (2005.)

Unless otherwise determined by the administrative law judge for good cause, at any
administrative hearing under this section before the State Office of Administrative Hearings, the
provider shall be responsible for: ( 1) one-half of tbe costs charged by the State Office of
Administrative Hearings; and (2) one-half of the costs for transcribing the bearing. To appeal
this final sanction, you must file a written request for appeal which must be received by HHSC-
OIG at the following address, no later than the 15th calendar day after the date of receipt of this
notice:

Texns Health and Human Services Commission
Office of Inspector General
Attn: Steve Dallas Johnson, Associate Counsel
Mail Code I-1358
P.O. 85200
Austin, Texas 78708-5200

The Jetter requesting an appeal hearing must contain a statement as to the specific issues,
findings, and/or legal authority in the notice Jetter with which you disagree, and the basis for
your contention that the specific issues or findings and conclusions are incorrect. The request for
a formal administrative appeal must be signed by you or your attorney.

THIS SANCTION 'WILL BECOI\-IE FINAL AND UNAPPEALABLE UPON THE
EXPIRATION OF 15 CALENDAR DAYS AFTER RECEIPT OF THE NOTICE OF
FINAL SANCTION IF NO TIMELY REQUEST FOR APPEAL HAS BEEN RECEIVED
BY HHSC-OIG.
Shamrock Psychiatric Clinic, P.A.
November 25, 2013
Page3


The effect of this determination becoming final creates a final debt in favor of the State of Texas.
As such, you    wm    have 30 days after this notice becomes final to pay the amount of the
overpayment, negotiate a payment plan, or file a petition for judicial review. l Tex. Admin. Code
§371.1617(b) (2012).

Please be aware that because of HHSC-OIG's identification of overpayment, consideration of
any applications for enrollment or for new provider numbers may be postponed until final
resolution of the matters described herein. 1 Tex. Admin. Code §352.11 (2012), I Tex. Admin.
Code §371.1011 (2012) and I Tex. Admin. Code §371.1013 (2012).

If you have any questions, please contact me at (512) 491-5606.

Sincerely,




Steve Dallas Johnson
Associate Counsel
HHSC-OIG

Enclosure
Appendix to No. 03-15-00349-CV
Exhibit 7- Notice of Payment Hold

      RR Defendant’s Ex. 2
                TEXAS HEALTH AND HUMAN SERVICES COMMISSION


January 24, 2013
                                                                                         KYLE L. JANEK, M.D.
                                                                                        EXECl!TIVE COMMISSIONER


                          ****NOTICE OF PAYMENT HOLD****

Via CMRRR No. 701129700002 9418 5581
And Via First Class Mail

Dr. Ravichandran
6300 Hillcroft Ste 210
Houston, TX 7708 l

Re: Dr. Guruswami Ravichandran d/b/a Shamrock Psychiatric Clinic; TPI 0826224; NPI
Number 1891985271; HHSC-OIG Case No. P200904944

Dear Dr. Ravichandran:

The Texas Health and Human Services Commission Office of Inspector General (HHSC-OIG) is
conducting an investigation of claims submHted by you, Dr. Guruswami Ravichandran d/b/a
Shamrock Psychiatric Clinic, hereafter referred to as Shamrock, for payment under Medicaid or
other HHS programs, during the period February 1, 2007 through November 30, 2011. A review
of the evidence pertaining to this investigation indicates a pattern of non-compliance.

Pursuant to l Tex. Admin. Code § 37l.1703(b) (2005), the purpose of this notice is to inform
you of HHSC-OIG's imposition of a payment hold on payments of future claims submitted by
Shamrock for reimbursement. HHSC-OIG has determined that prima facie evidence exists to
support this payment hold. The violations that have been found, to date, as a result of the review
and that form the bac;is for this sanction action explained in this notice are as follows:

1. During the approximate time period from February 1, 2007 to November 30, 201 l, Shamrock
submitted or caused to be submitted claims with a pattern of inappropriate coding or billing that
resulted in excessive costs to the Medicaid program. Generally, at a time when Shamrock knew
or should have known the following were violations, Shamrock claimed and received payments
for up coded therapy services and for therapy services not supported by documentation contained
in recipient files.    This conduct constitutes a violation of l TEX. ADMIN. CODE §
37 l.1617(1)(A),(B),(E),(I), and 5(A),(G) (2005).

HHSC-OIG affords, to any provider or person against whom it imposes sanctions, all
administrative and judicial due process remedies applicable to administrative sanctions,
including an informal review, a formal administrative appeal hearing, or both. If both an
informal review and formal appeal hearing are chosen, the formal appeal hearing and alJ
pertinent discovery, prehearing conferences, and all other issues and activities   ·   the
                                                                                  i           EXHIBIT

                                                                                  ~
                                                                                  ~
                                                                                  0..
                            ,....
Shamrock Psychiatric Cli~ ·                                              (
HHSC-OIG CASE NO. P200904944
January 24, 2013
Page 2 of2

formal appeal bearing will be abated until all informal review discussions have ended without
settlement or resolution of the issues. 1 Tex. Admin. Code § 371.1703 (2005). Be advised that
HHSC-OIG has the authority to recover costs related to a fonnal appeal hearing, including: the
hourly SOAH fee, court reporter fees, deposition expenses and other discovery costs, witness
expenses (including travel and per diem), staff preparation time (including salaries, travel, and
per diem), and the costs of transcripts and copies. 1 Tex. Admin. Code § 371.1705(3) (2005).
A request for an infonnal review and/or expedited administrative appeal hearing must be
received in writing not later than ten (10) da):'.s after the date you receive this notice of the
payment hold at the following address:
Texas Health and Human Services Commission
Office of Inspector General
Corrie Alvarado, Associate Counsel
Mail Code I-1358
P.O. 85200
Austin, Texas 78708-5200

If you have any questions, or need further information, please contact me at (512) 491-5606.

Sincerely,




Corrie Alvarado
Associate Counsel
HHSC-OIG

Enc: 1. 1 Tex. Admin. Code§ 371.1703
     2. 1 Tex. Admin. Code§ 371.1705

                                                                 Dr. Ravichandran
                                                                 6300 Hillcroft Ste 2 t
                                                                 Houston, TX 77081
      Appendix to No. 03-15-00349-CV
Exhibit 8- OIG Motion to Dismiss Payment Hold

           RR Defendant’s Ex. 13
                                    SOAH DOCKET NO. XXX-XX-XXXX
                                    HHSC·OIG CASE NO.: P200904944

SHAMROCK PSYCHIATRIC CLINIC, P.A.,                   §            BEFORE THE STATE OFFICE
Petitioner,                                          §
                                                    §
vs.                                                 §
                                                    §                      OF
TEXAS HEALTH AND HUMAN                              §
SERVICES COMMISSION, OFFICE OF                      §
INSPECTOR GENERAL,                                  §
Respondent.                                         §          ADMINISTRATIVE HEARINGS


              RESPONDENT'S MOTION TO DISMISS WITHOUT PREJUDICE


TO THE HONORABLE ADMINISTRATNE LAW JUDGE:

         In accordance with I Tex. Admin. Code §155.503(b)(1)(C) (2008), the Texas Health and

Human Services Commission, Office of Inspector General ("HHSC-OIG" or "Respondent") files

this Motion to Dismiss Without Prejudice, and would show the following:

                                        A.   INTRODUCTION

         I.       A hearing on the merits is scheduled in this malter before the State Office of

Administrative Hearings, to begin on March 3, 2014, at 9:00 a.m.

         2.       HHSC-OIG is withdrawing its February 26, 2013, Complaint and Notice of

Hearing filed with the State Office of Administrative Hearings.

                               B.     ARGUMENT AND AUTHORITIES

         3.       On November 25, 2013, HHSC-OIG served Petitioner, by and through its counsel

of record, with a Final Notice of Overpayment. Proof of delivery shows receipt of the Final

Notice of Overpayment by Petitioner's counsel of record on December 2, 2013. See Exhibit A.




SOAH Docket No. 529· 13·2658
Page 1 of 4
        4.       Petitioner failed to file a written request for appeal of _the Final Notice of

Overpayment by the I 5111 calendar day after receipt, in accordance with 1 Tex. Admin. Code

§371.17l l(d)(3) (2012).

        5.       Since Petitioner did not make a timely request for appeal of imposition of the final

sanctions, the sanctions identified in the Final Notice of Overpayment became final January J,

2014 (30 calendar days after receipt of the notice of final sanction).          1 Tex. Adm. Code. §

371.1617(a)(l) (2012).

        6.       Pursuant to l Tex. Adm. Code. § 37 l. l 617(b) (2012), the final sanctions resulting

in recoupment, restricted reimbursement, assessment of damages, penalties, recoupment of audit

overpayments, and/or other financial recovery creates a final debt in favor of the State of Texas.

        7.       Petitioner's final debt in favor of the State of Texas renders Petitioner's request for

hearing on and the instant Payment Hold action moot; consequently, the present matter is ripe for

dismissal.

        8.       Pursuant to I Tex. Adm in. Code § l 55.503(b)( l )(C) (2008), the judge may dismiss

a case or a portion of the case from the State Office of Administrative Hearings 's docket for

mootness of the case.

        9.       Therefore, based upon the aforementioned, Respondent requests that an order be

entered dismissing this matter on the grounds of mootness.

                                           C.      PRAYER

        WHEREFORE, Respondent prays that this Court issue an Order cancelling the hearing

on the merits set for March 3, 2014, at 9:00 a.m., and dismissing this matter without prejudice

from the State Office of Administrative Hearing's docket on the grounds of mootness.




SOAH Docket No. 529·13·2658
Page 2 of 4
                              . Respectfully submitted,

                               Douglas C. Wilson
                               Inspector General

                               Joy Sparks
                               Acting Deputy Inspector General
                               Chief Counsel




                               State Bar No. 00790876
                               Steve Dallas Johnson
                               Associate Counsel
                               Stale Bar No. 00784349
                               Associate Counsel
                               11101 Metric Blvd.
                               Building I
                               Austin, Texas 78758
                               (512) 491-2832 Phone
                               (512) 833-6484 Fax
                               Kevin.Heyburn@hhsc.state.tx.us
                               ATTORNEY FOR TEXAS HEALTH
                               AND HUMAN SERVICES
                               COMMISSION· OFFICE OF
                               INSPECTOR GENERAL




SOAH Docket No. 529·13-2658
Page 3 of 4
Appendix to No. 03-15-00349-CV
  Exhibit 9- SOAH Order No. 8

     RR Defendant’s Ex. 14
                                SOAH DOCKET NO; XXX-XX-XXXX


 SHAMROCK PSYCHIATRIC                             §       BEFORE THE STATE OFFICE
 CLINIC, P.A.,                                    §
      Petitioner                                  §
                                                  §
 v.                                               §                      OF
                                                  §
 TEXAS HEALTH AND HUMAN                           §
 SERVICES COMMISSION OFFICE                       §
 OF INSPECTOR GENERAL,                            §
      Respondent                                  §      ADJ.\UNISTRATIVE HEAIDNGS

                                       ORDERN0.8
                                DENYING MOTION TO DISMISS

          On January 3, 2014, attorney Kevin Heyburn, representing the Office of Inspector
General for the Texas Health and Human Services Commission (OIG), filed a motion to dismiss
the request of Petitioner Shamrock Psychiatric Clinic, P.A., related to the final notice of
overpayment        OIG argued that Petitioner received the final notice of overpayment ou
December 2, 2013, and was required to file a request for appeal by the 15th calendar day after
receipt, as provided in Title l, Texas Administrative Code§ 371.171l(d)(3)(2012). TI1at section
states:


          A person may request an administrative appeal hearing after receipt of a final
          notice ofrecoupment in accordance with§ 371.1615 oftbis subchapter (relating
          to Appeals). OIG must receive the written request for an appeal no later than the
          15th calendar da.y after the date the person receives final notice.


          On January 6, 2014, Petitioner responded to the motion. OIG replied on January 8, 2014,
and Petitioner again responded on January 13, 2014.


          Petitioner has provided ru1 email dated October 4, 2013, in which Petitioner agreed with
OIG's suggestion to set the final notice of overpayment: case at the State Office of
Administrative Hearings on the same date Petitioner's payment bold case was set. The email
reflects the parties' agreement that the paymen.t hold and final notice of overpayment cases
would be heard together in the spring of2014. Petitioner•s emaiJ gave OIG notice of its intent to
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appeal even before OIG send the final notice of overpayment. Thus, OIG had adequate notice
that Petitioner intended to appeal both the payment hold case and 1he finaJ notice of overpayment
case.


        By order issued October 29, 2013, the Administrative Law Judge (AU) set the hearing
for March 3, 2014. For Petitioner to have requested a hearing when one was already set would
have accomplished nothing because the parties had already agreed to consolidate the two cases
for hearing.


        Therefore, the Administrative Law Judge denies OIG's motion to dismiss. The hearing
regarding both cases is consolidated and will be heard on March J, 2014, Rt 9:00 a.m. The
hearing is set for five days.


        SIGNED Januru-y 141 2014.




                                     SARAH G. RAMOS
                                     ADMINISTRATIVE LAW JUDGE
                                     STATE OFFICE OF ADMlMSTRATIVE HEARINGS
