                                                                                    ACCEPTED
                                                                                03-17-00552-CV
                                                                                      21280519
                                                                      THIRD COURT OF APPEALS
                                                                                AUSTIN, TEXAS
                                                                             12/13/2017 6:24 PM
                                                                              JEFFREY D. KYLE
                                                                                         CLERK
                        NO. 03-17-00552-CV

                                                             FILED IN
                                                      3rd COURT OF APPEALS
                 In the Third Court of Appeals,            AUSTIN, TEXAS
                          Austin Texas                12/13/2017 6:24:50 PM
                                                          JEFFREY D. KYLE
                                                               Clerk

DENTISTRY OF BROWNSVILLE, PC, KS2 TX, PC, SUMMIT DENTAL CENTER, LP
                 AND HARLINGEN FAMILY DENTISTRY
                                       Appellants,
                                V.

   TEXAS HEALTH AND HUMAN SERVICES COMMISSION, CHARLES SMITH,
             EXECUTIVE DIRECTOR, AND ANNICK BARTON
                                      Appellees.


   On appeal from the 250th Judicial District Court, Travis County,
             Texas, Trial Court No. D-1-GN-16-005358
               The Honorable Karin Crump, Presiding


                      APPELLANTS’ BRIEF


                                    RIGGS & RAY, P.C.
                                    Jason Ray
                                    Bar No. 24000511
                                    506 West 14th Street, Suite A
                                    Austin, TX 78701
                                    Tel: 512 457-9806
                                    Fax: 512 457-9066
                                    jray@r-alaw.com
                                    COUNSEL FOR APPELLANTS


                 Oral Argument Not Requested
                    IDENTITY OF PARTIES AND COUNSEL

Appellants:                 Dentistry of Brownsville, PC
                            KS2 TX, PC
                            Summit Dental Center, LP
                            Harlingen Family Dentistry

Counsel for Appellants: Jason Ray
                        State Bar No. 24000511
                        RIGGS & RAY, P.C.
                        506 West 14th Street, Suite A
                        Austin, Texas 78701
                        Tel: (512) 457-9806
                        Fax: (512) 457-9066
                        jray@r-alaw.com

Appellees:                  Texas Health and Human Services Commission
                            Charles Smith, Executive Director
                            Annick Barton
                            Gina Marie Muniz

Counsel for State:          Kara Holsinger
                            Assistant Attorney General
                            State Bar No. 24065444
                            Office of the Attorney General of Texas
                            Administrative Law Division
                            P.O. Box 12548, Capitol Station
                            Austin, TX 78711-2548
                            Tel: (512) 475-4203
                            Fax: (512) 320-0167
                            Kara.holsinger@oag.texas.gov




Appellants’ Brief
                                    i
                                        TABLE OF CONTENTS

IDENTITY OF PARTIES AND COUNSEL ..................................................... i

TABLE OF CONTENTS ................................................................................. ii

TABLE OF AUTHORITIES ........................................................................... v

STATEMENT OF THE CASE ...................................................................... vii

RECORD REFRENCES .............................................................................. viii

ISSUE PRESENTED .................................................................................... ix

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

SUMMARY OF THE ARGUMENT................................................................ 7

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

    I. The trial court misapplied the standard of review for Pleas to the
    Jurisdiction. .............................................................................................. 9

    II. The trial Court had jurisdiction to hear the Providers’
    rule challenge.......................................................................................... 10

            1) Rules 356.202 and 354.1450 do not provide process “consistent
            with the State’s Administrative Procedure laws” and “any additional
            appeal rights that would otherwise be available under procedures
            established by the State,” thus violating federal regulations at 42
            C.F.R. §495.370. (CR 209, 212). .....................................................13

            2) The rules were promulgated pursuant to a statute—Human
            Resources Code section 32.070—that does not, and cannot, apply to
            the EHR grant program. (CR 211-212). ..........................................14

            3) The rules impose a restriction on appeals (that is, no appeal to
            the State Office of Administrative Hearings and no judicial review)
            that is not expressly or impliedly found in Human Resources Code
            section 32.070, and therefore the rules imposed new limitations
Appellants’ Brief
                                                       ii
           inconsistent with the statute, in the event that section does apply to
           EHR grants. (CR 213). .................................................................... 15

           4) The rules were promulgated in excess of the agency’s authority.
           (CR 213).......................................................................................... 15

           5) The rules do not provide minimal and adequate due process
           protections. (CR 214). ....................................................................16

           6) The rules circumvent the due process protections in the
           Administrative Procedure Act, which would normally apply to this
           contested matter. (CR 211). ............................................................16

           7) The rules do not permit the agency to institute a vendor hold to
           recoup EHR funds, unless the Providers get a contested case
           hearing. (CR 214). .......................................................................... 17

        III. The trial Court had jurisdiction to hear the Providers’ ultra vires
        claims. ................................................................................................ 17

           1) Human Resources Code sections 32.0281(e) and/or 32.034,
           and/or Government Code section 2105.302, and/or overriding
           federal regulations at 42 C.F.R. §495.370 apply to the EHR grant
           program, and all require a contested case hearing. CR 201, 210. 18

           2) The HHSC letters signed by HHSC staff were not final
           agency decisions, so taking agency action based on a
           staffer’s letter is an ultra vires act. CR 208, 255, 258-261.. ...........19

           3) The “action memo” was a statement by the HHSC Commissioner
           that set out the ministerial procedure for EHR disputes. HHSC did
           not follow those procedures when it adjudicated Kool Smiles’ and
           Summit’s EHR dispute. That was ultra vires. CR 215, 261-262. .. 20

           4) It was an ultra vires act for the HHSC staff to not inform auditors
           and Ad Hoc members that the Providers had been passed a pre-
           payment audit. CR 216, 263-264. ..................................................21

           5) It was an ultra vires act for the HHSC to present a qualification
           standard to the auditors and Ad Hoc Panel members that was

Appellants’ Brief
                                                       iii
            different than what its agent TMHP had required years earlier. CR
            216, 263-264...................................................................................21

            6) HHSC staff’s “star chamber” review process was an ultra vires
            violation of the Providers’ due process rights. CR 216. ................ 22

            7) It was ultra vires for HHSC and its employees to apply the
            audit procedure set out in Human Resources Code section 32.070
            (and the concomitant rules 356.202 and 356.1450 adopted under
            that statute) to the EHR program. CR 212.. .................................. 22

        IV. The trial court committed reversible error in granting HHSC’s
        Motion for Summary Judgment, which contained no reference to any
        evidence. ............................................................................................ 23

        V. The trial court’s Final Judgment contains error. .......................... 25

PRAYER ...................................................................................................... 26

RULE 9.4(i) COMPLIANCE ........................................................................ 28

CERTIFICATE OF SERVICE....................................................................... 28

APPENDIX .................................................................................................. 29




Appellants’ Brief
                                                      iv
                                   TABLE OF AUTHORITIES
CASES                                                                                    PAGE(S)

6th & Neches, L.L.C. v. Aldridge, 992 S.W.2d 684
      (Tex. App.—Austin 1999, pet. denied) ...............................................19

Black v. Jackson, 82 S.W.3d 44 (Tex. App.—Tyler 2004, no pet.) ............ 25

Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547 (Tex. 2000) ....................... 9

Boeker v. Syptak, 916 S.W.2d 59
     (Tex.App.—Houston[1st Dist.] 1996, no writ) ................................... 25

City of El Paso v. Heinrich, 284 S.W.3d 366 (Tex. 2009) ................9, 18, 26

Combs v. Entertainment Publications, Inc., 292 S.W.3d 712
    (Tex.App.—Austin 2009) .............................................................12, 26

E.B. Smith Co. v. U.S. Fid. & Guar. Co., 850 S.W.2d 621 ........................... 25

Gonzales v. Shing Wai Brass and Metal Wares Factory, Ltd., 190 S.W.3d
    742 (Tex.App.—San Antonio 2005, no pet.) ..................................... 25

Harris County v. Sykes, 136 S.W.3d 635 (Tex. 2004). .............................. 26

Houston Belt & Terminal Railway Co. v. City of Houston,
     487 S.W.3d 154 (Tex. 2016) .............................................................. 18

Jansen v. Fitzpatrick, 14 S.W.3d 426
     (Tex. App.—Houston[14th Dist.], no pet.) ........................................ 25

Rogers v. Ricane Enterprises, 772 S.W.2d 76 (Tex. 1989) ........................ 25

Rogers v. Texas Optometry Bd., 609 S.W.2d 248
     (Tex. Civ. App.—Dallas 1980, writ ref'd n.r.e.) ................................. 22

Texas Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217
     (Tex. 2004) ................................................................................... 9, 10



Appellants’ Brief
                                                    v
                                    TABLE OF AUTHORITIES
CASES                                                                                     PAGE(S)

Texas Dept. of Prot. & Reg. Ser. v. Mega Child Care, Inc.,
     145 S.W.3d 170 (Tex. 2004) ...............................................................16

University of Tex. v. Poindexter, 306 S.W.3d 798
     (Tex. App.–Austin 2009, no pet.) ................................................. 9, 10


STATUTES                                                                                  PAGE(S)

1 TEX. ADMIN CODE § 356.202 ................................................................. 13, 22
1 TEX. ADMIN CODE § 354.1450 ............................................................... 13, 22
1 TEX. ADMIN CODE 354.1450(c)(1) ...............................................................14
1 TEX. ADMIN CODE 354.1450(c)(3) ..............................................................14
1 TEX. ADMIN CODE 354.1450(c)(4). .............................................................14
1 TEX. ADMIN CODE 354.1450(c)(7) ..............................................................14
1 TEX. ADMIN CODE 354.1450(c) (8) .............................................................14
1 TEX. ADMIN CODE 354.1450(c)(8)(C) .........................................................14
1 TEX. ADMIN CODE 354.1450(c)(9) ..............................................................14
1 TEX. ADMIN CODE 354.1450(c)(10) ............................................................14
1 TEX. ADMIN CODE 354.1450(c)(11) .............................................................14
1 TEX. ADMIN CODE 354.1450(c)(13) .............................................................14

TEX. GOV’T CODE § 2001.038 ....................................................................... 10
TEX. GOV’T CODE § 2105.302 ........................................................................ 18

TEX. HUM. RES. CODE § 32.034 .................................................................... 18
TEX. HUM. RES. CODE § 32.070 ......................................................... 14, 15, 22
TEX. HUM. RES. CODE § 32.0281(e) .............................................................. 18

FEDERAL STATUTE                                                                           PAGES(S)

42 C.F.R. §495.370 ................................................................................. 13, 18




Appellants’ Brief
                                                    vi
                    STATEMENT OF THE CASE

 Nature of the Case:   Appellants sued the Texas Health and
                       Human Services Commission and certain
                       employees (collectively “HHSC”) alleging
                       ultra vires acts and violations of due
                       process by the employees, and challenging
                       rules under which the HHSC had brought
                       an     administrative    action   against
                       Appellants. CR198.

 Trial Court:          The Honorable Karin Crump, Judge of the
                       250th District Court, Travis County,
                       Texas.

 Trial Court           On June 15, 2017, the trial court dismissed
 Disposition:          for want of jurisdiction all claims from the
                       Appellants Dentistry of Brownsville PC,
                       KS2 TX, PC and Summit Dental Center LP.
                       CR390. In the same order, the trial court
                       granted a Motion for Summary Judgment
                       against all of Appellant Harlingen Family
                       Dentistry’s claims. CR390. On August 15,
                       2017, the trial court filed Findings of Fact
                       and Conclusions of Law regarding its
                       jurisdiction ruling. CR 403.




Appellants’ Brief
                                vii
                         RECORD REFERENCES

References to the parties and record are as follows:

“Providers” refers to Appellants collectively.

“Kool Smiles” refers specifically to Appellants Dentistry of Brownsville PC,
and KS2 TX, PC.

“Summit” refers specifically to Appellant Summit Dental Center LP.

“Harlingen” refers specifically to Appellant Harlingen Family Dentistry.

“HHSC” refers to Texas Health and Human Services Commission, Charles
Smith, Executive Director, Gina Marie Muniz collectively.

“EHR” refers to Electronic Health Records.

References to the clerk’s record will be at “CR ___”

References to the reporter’s record will be at “RR ___”




Appellants’ Brief
                                      viii
                      ISSUES PRESENTED


I.   The trial court misapplied the standard of review for Pleas to
the Jurisdiction.

II.   The trial court had jurisdiction to hear the Providers’ rule
challenge.

III. The trial court had jurisdiction to hear the Providers’ ultra
vires claims.

IV. The trial court committed reversible error in granting
HHSC’s Motion for Summary Judgment, which contained no
reference to any evidence.

V. The trial court’s Final Judgment contains error.




Appellants’ Brief
                                 ix
                           STATEMENT OF FACTS

       In 2009, President Obama signed the American Recovery and

Reinvestment Act of 2009, a critical measure to stimulate the economy.

Among other provisions, the law provided opportunities for the U.S.

Department of Health and Human Services to improve the nation’s health

care by providing financial incentives to promote the use of electronic health

records (EHR). In 2011, Providers were early entrants to the EHR incentive

program, whereby federal grant money was made available to the Providers

in exchange for the providers transitioning to a certified EHR technology

system.     Providers worked closely with the HHSC and HHSC’s grant

administrator (the Texas Medicaid Healthcare Partnership (TMHP)) to

assure that their grant applications met the federal eligibility requirements.

Those requirements were communicated to Providers by TMHP, the

applications were reviewed and approved by TMHP, and the funds were

disbursed by TMHP. Over $3 million in grant funds was collectively paid to

the Providers as incentive to make their health records EHR compliant.

       EHR incentive payments are 100% federal funds, but the HHSC was

responsible for applying federal eligibility criteria for those funds and

assuring that the eligibility criteria was consistent with federal standards.

Those funds were awarded by HHSC on an individual basis to any “Eligible


Appellants’ Brief
                                      1
Provider” that met HHSC’s pre-set criteria. Because the funds were paid to

individuals, dentists made their application under their individual name

even though any EHR system in a multi-location/ multi-dentist practice

would, as a practical matter, would be used by all of the dentists and all of

the locations. (RR 29:17-21). Naturally, multi-location and multi-dentist

practices such as Providers communicated with HHSC (through its agent

TMHP) to explore how their large practices could meet the eligibility criteria

in a way that permitted the practice to expose all of their dentists to the

technology initiative in one group. CR 268.

       On some occasions, TMHP selected dentists to be “manually

reviewed.” RR 31:3-23; CR 268. This was a process by which a grant

submission was reviewed, prior to being paid the incentive funds, to assure

that all requirements for receiving the grant funds had been met. Id. In every

case where a Providers’ dentist was subject to pre-payment review, TMHP

approved the attesting dentists’ evidence as being sufficient to meet the

federal standards. CR 269. In every case, those dentists were subsequently

paid EHR grant funds. Id.

       By early and mid-2012, Providers ultimately received millions of

dollars in grant money to adopt, implement, or upgrade to certified EHR

software system. In 2012, HHSC retained an auditor to assure the grant


Appellants’ Brief
                                      2
money was properly spent by providers. When the Providers were audited

in 2013, however, the auditor retroactively applied a different qualification

standard than what TMHP had permitted for group practices. CR 269.

HHSC did not tell the auditors about TMHP’s instructions to the Providers,

and did not disclose that the Providers’ dentists had actually passed a pre-

payment audit that had specifically addressed the qualification standards.

Using the different standard, the auditor disqualified all of the Providers’

dentists’ applications, even the dentists that had passed the pre-payment

audit. CR 294.

       HHSC then passed Rule 356.202, which bypassed the standard

contested case hearing that providers usually received. CR 129. Instead, the

rule made EHR grant disputes subject to an audit process that the agency

used for “cost-reporting” providers such as pharmacies, outpatient

rehabilitation facilities (ORFs), and comprehensive outpatient rehabilitation

facilities (CORFs). CR 130.

       In 2014 and 2015, HHSC staff issued letters indicating the Providers’

dentists at certain group practices—even the ones that had specifically been

audited to assure compliance with the qualification standards—had not

actually qualified for the EHR grant funds because of the manner in which

TMHP had told the large group providers to apply. The auditors’ reports


Appellants’ Brief
                                      3
recommended the repayment of millions of dollars. Providers appealed. CR

304.

       HHSC responded by indicating that any EHR dispute about whether

the provider correctly applied for the grant funds would be subject to the

process in Rule 356.202, which involved review by an HHSC-selected panel,

and a final decision by HHSC staff. CR 290. Kool Smiles’ appeal was the first

appeal taken. Kool Smiles requested the opportunity to: 1) present its case

in person to the panel members, 2) provide evidence in support of its

argument, and 3) to hear the HHSC’s presentation to the panel members.

Kool Smiles’ requests were all denied; it was permitted to submit a short

memorandum (but no additional evidence) stating its position. HHSC did

not reveal who the panel members were, when they were meeting, what they

would review, or what HHSC staff would say to them.

       Upon information and belief, HHSC withheld information from the Ad

Hoc Panel members, much like HHSC had withheld information from the

auditors. In September 2016, HHSC e-mailed Kool Smiles a letter signed by

Defendant Annick Barton, an employee at HHSC. CR 288. That letter

indicated that the Ad Hoc Panel had met in July 2016 and recommended

upholding the audit results. Id.    That letter also indicated that HHSC

“concurs with the recommendations of the panel.” Id. The letter stated that


Appellants’ Brief
                                     4
HHSC would begin recouping nearly $1 million from Kool Smiles. Id. The

HHSC letter is not signed by the HHSC Executive Director, and does not

meet any of the procedural or substantive formalities of a final order. CR 289.

       Kool Smiles repaid the grant funds under protest and, along with the

other Providers, filed this lawsuit challenging the rules granting HHSC the

authority to internally dispose of the contested matter, as well as

complementary declaratory judgment actions related to staff’s ultra vires

actions in this matter.

       After this lawsuit was filed, HHSC took similar steps against Summit,

and the result was the same. Summit received notice of disposition on

February 21, 2017 signed by Defendant Gina Muniz, an employee at HHSC.

CR 286. The letter stated that HHSC would recoup $807,500 from Summit.

       Harlingen employed the same group practice submission used by Kool

Smiles and Summit, and appears to be awaiting a similar fate.

       In the trial court, HHSC filed a combination “plea to the jurisdiction

and motion for summary judgment,” asserting multiple alternatives for

summary disposition. CR 20.        The trial court granted the Providers’

objections to HHSC’s summary judgment evidence, but allowed HHSC to

cure its defects. CR 276, 281. Providers objected to HHSC’s subsequent

supplementation. CR 368. The objections were overruled in part. CR 390.


Appellants’ Brief
                                      5
Despite the fact that the Providers all made the same claims against HHSC,

the trial court granted HHSC’s plea to the jurisdiction against Kool Smiles

and Summit, and granted HHSC’s motion for summary judgment against

Harlingen. CR 392.




Appellants’ Brief
                                     6
                           SUMMARY OF ARGUMENT

       The trial court applied the wrong legal standard for jurisdictional pleas,

because HHSC convinced the trial court that the Providers had to prove the

factual assertions in their complaint as a matter of law in order to overcome

HHSC’s jurisdictional plea. For example, the trial court found that Kool

Smiles and Summit had not demonstrated a waiver of sovereign immunity

to support a rule challenge. But a rule challenge is its own waiver of

immunity, so prevailing on a jurisdictional plea required HHSC to present

competent evidence to defeat those Providers’ jurisdictional assertions as a

matter of law. Likewise, sovereign immunity cannot bar those Providers’

ultra vires claims, because ultra vires claims are, by their very nature,

complaints regarding illegal or unauthorized action. This brief provides a

concise recital of Kool Smiles’ and Summit’s rule challenges and ultra vires

claims, and explains why HHSC argument and evidence on each

challenge/claim could not have defeated as a matter of law the Providers’

factual assertions supporting jurisdiction.

       With regard to the last Provider, Harlingen Family Dentistry, the trial

court’s grant of HHSC’s two-page motion for summary judgment was

reversible error because the motion contained no reference to any evidence.




Appellants’ Brief
                                        7
       Finally, the trial court judgment contains straightforward errors

regarding the disposition of the Providers claims. These errors require

addressing by this court.




Appellants’ Brief
                                    8
                                  ARGUMENT

I. The trial court misapplied the standard of review for Pleas to
the Jurisdiction.

       Whether a trial court has subject matter jurisdiction is a question of

law that the appellate courts review de novo. Texas Dep’t of Parks & Wildlife

v. Miranda, 133 S.W.3d 217, 226 (Tex. 2004). When a plea to the jurisdiction

challenges the pleadings, the courts look to the pleader’s intent, construes

the pleadings liberally in favor of jurisdiction, and accepts the allegations in

the pleadings as true to determine if the pleader has alleged sufficient facts

to affirmatively demonstrate the trial court’s jurisdiction to hear the cause.

City of El Paso v. Heinrich, 284 S.W.3d 366, 378 (Tex. 2009); Miranda, 133

S.W.3d at 226. When the plea challenges the jurisdictional facts, the trial

court may consider any evidence the parties have submitted and must do so

when necessary to resolve the jurisdictional inquiry. Bland Indep. Sch. Dist.

v. Blue, 34 S.W.3d 547, 555 (Tex. 2000).

       If the evidence creates a fact issue as to jurisdiction, the trial court

cannot grant the plea to the jurisdiction, and the fact issue must be resolved

by the fact finder at trial. Miranda, 133 S.W.3d at 227–28; University of Tex.

v. Poindexter, 306 S.W.3d 798, 807 (Tex. App.–Austin 2009, no pet.). If the

evidence is undisputed or fails to raise a fact issue, the trial court should rule

on the plea to the jurisdiction as a matter of law. Miranda, 133 S.W.3d at

Appellants’ Brief
                                        9
228; Poindexter, 306 S.W.3d at 807. The appellate courts then review the

trial court’s determination de novo, indulging every reasonable inference on

the facts and resolving any doubts in the plaintiff’s favor. Miranda, 133

S.W.3d at 228; Poindexter, 306 S.W.3d at 807.

       Under the legal rules recited above, the trial court could only have

granted HHSC’s jurisdictional plea if the trial court found that the HHSC’s

summary judgment evidence refuted all of the Providers’ claims as a matter

of law. That is not what occurred in this case. The trial court improperly

shifted the burden to the Providers, forcing the Providers to prove their

jurisdictional facts as a matter of law. HHSC did not present evidence that

was competent to defeat Provider’s jurisdictional assertions as a matter of

law.

II.   The trial court had jurisdiction to hear the Providers’ rule
challenge.

       The trial court’s found that Kool Smiles and Summit “failed to

demonstrate a waiver of sovereign immunity to challenge a final agency

decision under TEX. GOV’T CODE § 2001.038.” CR 405. This finding is a bit

confusing, since section 2001.038 relates to rule challenges, not final agency




Appellants’ Brief
                                      10
decisions. For this brief, the Providers assume that the court accidentally

used the term “final agency decision” when it meant “rule.”1

         As a preliminary matter, HHSC’s plea argued that the trial “court has

power to determine only the ‘applicability of a rule’ whose ‘application is

threatened,’ not to issue a declaration regarding the impact of a rule on a

particular, already complete agency proceeding.” CR 41 (HHSC’s

jurisdictional plea). Thus, HHSC claimed, Kool Smiles’ and Summit’s rule

challenge was a collateral attack on a final agency decision. Id. It was not;

Kool Smiles and Summit’s rule challenge was just that—a rule challenge,

although their other ultra vires claims addressed HHSC’s actions regarding

the alleged “final agency decision.” Nevertheless, a liberal reading of HHSC’s

jurisdictional plea implies a possible mootness argument regarding Kool

Smiles’ and Summit’s rule challenge. (CR 41). However, both Kool Smiles

and Summit remain in the EHR grant program and continue to be subject to

the rules for other dentists that have received EHR grants, as well as future

EHR grants. (RR Vol2, Page 88-91). Thus, the challenged rules continue to

apply to Kool Smiles and Summit today, and will be applied with regard to

future EHR grants they receive.                          As a separate basis for avoiding any

mootness argument, the rule challenge also remains a justiciable controversy


1
 If the HHSC believes there is a more likely explanation for the trial court’s finding, that explanation will be
addressed in the Provider’s response brief.

Appellants’ Brief
                                                          11
because the Providers’ ultra vires claims are intertwined with this rule

challenge. For example, if this court finds that the notice letters from HHSC

employees were issued without authority, or are not a final agency action,

then the Providers remain subject to the challenged rules.

       “The APA declaratory-judgment vehicle of section 2001.038 is a

legislative grant of subject-matter jurisdiction.” Combs v. Entertainment

Publications, Inc., 292 S.W.3d 712, 720 (Tex.App.—Austin 2009) The

Providers challenged the validity and applicability of HHSC rules at 1 TEX.

ADMIN CODE § 356.202 and 1 TEX. ADMIN CODE § 354.1450. CR 13 (Original

Petition); CR 211-214 (Second Amended Petition). The Providers claimed

that the rules are invalid/inapplicable for seven reasons (outlined below). In

general, the Providers argued that the rules should not apply to them at all

because they were promulgated under a statute that was inapplicable to the

EHR program, and that in any event the rules deprived them of a contested

case hearing and/or appeal rights and/or judicial review of what HHSC

claimed was a final agency decision. CR 213.

       The trial court found that Kool Smiles and Summit had not

demonstrated a waiver of sovereign immunity to support a § 2001.038 cause

of action. CR 405. This finding of fact turns the evidentiary standard on its

head. It was not the Providers’ duty to prove that its jurisdictional facts were


Appellants’ Brief
                                      12
true as a matter of law. In order for its jurisdictional plea to prevail, HHSC

had to present competent evidence to defeat the Providers’ jurisdictional

assertions as a matter of law.

       The only evidence that was provided to the trial court was the evidence

HHSC submitted as part of its summary judgment motion. Therefore, this

court should review HHSC’s summary judgment evidence to determine

whether the evidence is competent to overcome each of the Providers’ rule

challenges as a matter of law. The Providers’ seven rule challenges are set

out below:

1) Rules 356.202 and 354.1450 do not provide process “consistent
with the State’s Administrative Procedure laws” and “any
additional appeal rights that would otherwise be available under
procedures established by the State,” thus violating federal
regulations at 42 C.F.R. §495.370. (CR 209, 212).

       The Providers argued that 42 C.F.R. §495.370 expressly requires that

HHSC give the Provider “an opportunity to challenge the State’s

determination… by submitting documents or data or both to support the

provider’s claim” and additional appeal rights beyond that. CR 168, 209,

255. HHSC’s original plea and supplemental plea deliver only rhetoric

regarding why those mandates in the federal regulation should not require

the HHSC to provide a contested case hearing. CR 33-34. HHSC provides




Appellants’ Brief
                                      13
no evidence in support of its contention, and certainly no evidence that

would overcome the Providers’ rule challenge as a matter of law.

2) The rules were promulgated pursuant to a statute—Human
Resources Code section 32.070—that does not, and cannot, apply
to the EHR grant program. (CR 211-212).

         The Providers repeatedly make this point: the terms of section 32.070

do not, and cannot, apply to disposing of EHR incentive fund disputes. The

statute simply was not written to apply to these sorts of matters, and HHSC’s

stubborn insistence that the section (and rule 354.1450 promulgated

pursuant to the section) must apply to these disputes is worse than ill-fitting

clothes—it is impossible. CR 201, 211. Rule 354.1450, which was created in

2006 (over five years before EHR incentive funds were even available)

speaks to “field audits”2 (which would be applicable to CORFs/ORFs), an

“entrance interview”3 and “exit interview”4 (again, for CORFs/ORFs),

“questioned costs”5 (which may be applicable to pharmacies as well as

CORFs/ORFs), and the need for the audit report to address any “proposed

adjustment to the provider’s cost report.”6 None of that makes any sense in

the context of the EHR grant fund program, and HHSC did not comply with

those regulatory mandates (because there is no such thing as a field audit,


2
  1 Tex. Admin Code 354.1450(c)(1), (3), (4), (7), (10), (11), and (13).
3
  1 Tex. Admin Code 354.1450(c)(4).
4
  1 Tex. Admin Code 354.1450(c)(7), (8).
5
  1 Tex. Admin Code 354.1450(c)(8)(C).
6
  1 Tex. Admin Code 354.1450(c)(9).

Appellants’ Brief
                                                          14
entrance/exit interview, questioned cost or cost report in the context of an

EHR grant). HHSC’s plea and supplemental plea does not even rhetorically

respond to Providers’ challenge on this point. Without no evidence or

argument from HHSC, it was error for the trial court to find that HHSC had

overcome the Providers’ rule challenge as a matter of law.

3) The rules impose a restriction on appeals (that is, no appeal to
the State Office of Administrative Hearings and no judicial
review) that is not expressly or impliedly found in Human
Resources Code section 32.070, and therefore the rules imposed
new limitations inconsistent with the statute, in the event that
section does apply to EHR grants. (CR 213).

       The Providers argue that the Rule 356.202(b) appears to forestall any

subsequent appeal of the agency’s final decision, but there is no such

limitation in section 32.070. Thus, the Rule 356.202(b) and 354.1450(c)(13)

go beyond what is expressed in the statute that provided the authority for

those rules. HHSC’s plea and supplemental plea provide no evidence in

response to this basis for striking the rule.

4) The rules were promulgated in excess of the agency’s authority.
(CR 213).

       The Providers’ broad allegations regarding HHSC’s rulemaking

authority, such as the authority to limit EHR evidence that can be presented

in defense of an agency finding, the authority to deny Providers a contested

case hearing, and the authority to completely prevent judicial review of staff’s


Appellants’ Brief
                                       15
opinion regarding EHR disputes, was properly pled. CR 213. HHSC’s plea

and supplemental plea do not address HHSC’s authority for imposing these

limitations, and therefore HHSC could not defeat this rule challenge as a

matter of law.

5) The rules do not provide minimal and adequate due process
protections. (CR 214).

       Here, the providers rely on the “star-chamber” qualities that HHSC

built into the review process: 1) no ability to for the Providers to present their

case in person to anyone, 2) no ability to provide evidence in support of its

argument, and 3) no ability to hear the HHSC’s presentation to anyone. CR

206. HHSC plea argues that the Providers received a desk review by an

HHSC employee of HHSC’s preliminary decision and later could “brief the

[Ad Hoc] panel.” CR 32. At best, the parties’ positions create a disputed issue

of fact regarding whether the rules provide minimal and adequate due

process protection.

6) The rules circumvent the due process protections in the
Administrative Procedure Act, which would normally apply to
this contested matter. (CR 211).

       The Providers argue that the standard set out in Texas Dept. of Prot. &

Reg. Ser. v. Mega Child Care, Inc., 145 S.W.3d 170, 199 (Tex. 2004) applies

to allow judicial review of a final agency action. The challenged rules prohibit

such a hearing, so they are subject to challenge.            HHSC’s plea and

Appellants’ Brief
                                       16
supplemental plea do not respond in any way to this basis for striking the

rules.

7) The rules do not permit the agency to institute a vendor hold to
recoup EHR funds, unless the Providers get a contested case
hearing. (CR 214).

         The Providers argue that the only HHSC rules permitting the agency to

engage in self-help recoupments (such as what the agency did to Kool Smiles

and Summit in this case) are the rules found in 1 Tex. Admin Code ch. 357.

However, chapter 357 rules relate to action following a contested case

hearing, which HHSC denied in this case. HHSC’s plea and supplemental

plea do not respond in any way to this basis for striking the rule.

Conclusion regarding the Providers’ rule challenges.

         HHSC’s plea and supplemental plea offered no reasonable rebuttal to

the allegations underlying the Providers’ rule challenges.        Under these

circumstances, it was error for the trial court to jurisdictionally dismiss Kool

Smiles’ and Summit’s rule challenges, because HHSC did not present

evidence that was competent to defeat Provider’s jurisdictional assertions as

a matter of law.

III. The trial court had jurisdiction to hear the Providers’ ultra
vires claims.

         Courts have consistently recognized that immunity does not bar claims

alleging that government officers acted ultra vires, or without legal

Appellants’ Brief
                                       17
authority, in carrying out their duties. Houston Belt & Terminal Railway

Co. v. City of Houston, 487 S.W.3d 154, 157–58 (Tex. 2016). To fall within

the ultra vires exception to immunity, a suit must not complain of a

government officer's exercise of discretion, but rather must allege, and

ultimately prove, that the officer acted without legal authority or failed to

perform a purely ministerial act. City of El Paso v. Heinrich, 284 S.W.3d

366, 372 (Tex. 2009).

       In defending itself from the Providers’ ultra vires claims, HHSC

convinced the trial court to shift onto the Providers the burden of proving as

a matter of law the factual assertions in their complaint in order to survive

the HHSC’s jurisdictional attack. Here, the Providers pled these ultra vires

acts, and the jurisdictional facts to support them:

1) Human Resources Code sections 32.0281(e) and/or 32.034,
and/or Government Code section 2105.302, and/or overriding
federal regulations at 42 C.F.R. §495.370 apply to the EHR grant
program, and all require a contested case hearing. CR 201, 210.

       Failing or refusing to apply the proper statutory scheme to any

particular situation is an ultra vires act. Providers asserted that there are a

variety of alternative HHSC statutes and at least one federal mandate that

require all participants in the EHR program to receive an opportunity for a

contested case hearing; all of those statutes are more fitting to the EHR

incentive program than section 32.070.          HHSC responded to these

Appellants’ Brief
                                      18
allegations with arguments from its legal counsel; it provided no evidence to

dispute the Providers’ arguments. CR 35, 37, 38. Without evidence, HHSC

could not defeat the Providers’ jurisdictional assertions as a matter of law.

2) The HHSC letters signed by HHSC staff were not final agency
decisions, so taking agency action based on a staffer’s letter is an
ultra vires act. CR 208, 255, 258-261.

           Providers’ claims on this point were clearly stated in the Second

Amended Petition: an HHSC staff letter is not a final agency decision under

Texas G0vernment Code section 2001.141. CR 208.              Only the HHSC

Commissioner is statutorily authorized to render final agency decisions,7 and

the Commissioner did not issue a decision in Kool Smiles’ or Summit’s EHR

disputes, HHSC’s million-dollar recoupments against Kool Smiles and

Summit were ultra vires acts. CR 215.

           HHSC responded by arguing that the Commissioner had, in fact,

delegated authority to make final agency decisions regarding EHR matters

to an HHSC staffer. CR 222, referencing an “action memo” that purportedly

delegated such authority. In turn, the Providers pointed to 6th & Neches,

L.L.C. v. Aldridge, 992 S.W.2d 684, 688 (Tex. App.—Austin 1999, pet.

denied), which examined how delegation of such power was required to

occur. The Providers noted that the HHSC’s “action memo” does not mention



7
    See Tex. Gov’t Code § 531.005, 531.00562.

Appellants’ Brief
                                                19
or deliver the authority for anyone to act on the Commissioner’s behalf. CR

258-261. At best, the parties’ positions create a disputed issue of fact

regarding whether the agency’s actions were a reflection of the

Commissioner’s, as opposed to his employees’, authority.

3) The “action memo” was a statement by the HHSC
Commissioner that set out the ministerial procedure for EHR
disputes. HHSC did not follow those procedures when it
adjudicated Kool Smiles’ and Summit’s EHR dispute. That was
ultra vires. CR 215, 261-262.

       The Providers provided allegations and evidence in the form of the

“action memo” to support the claim that HHSC staff acted ultra vires when

staff prevented the Providers from providing supporting documentation and

case files to the Ad Hoc Panel. CR 216, 262. The “action memo” expressly

contemplates that the Ad Hoc Panel would review such evidence from the

HHSC and the provider as part of its deliberations. See CR 360 (action

memo). HHSC responded by arguing an alternative reading of the memo.

CR 223. In any event, the parties’ arguments create a disputed fact for the

trial court to consider at a merits hearing, and did not defeat the Providers’

jurisdictional assertions as a matter of law.




Appellants’ Brief
                                      20
4) It was an ultra vires act for the HHSC staff to not inform
auditors and Ad Hoc members that the Providers had been passed
a pre-payment audit. CR 216, 263-264.
5) It was an ultra vires act for the HHSC to present a qualification
standard to the auditors and Ad Hoc Panel members that was
different than what its agent TMHP had required years earlier.
CR 216, 263-264.

       These two related claims are discussed together because they

collectively demonstrate that HHSC disqualified the Providers’ grant

applications by retroactively applying a new qualification standard. It is

undisputed that TMHP’s pre-payment manual review results concerned

whether the Providers had properly applied for and qualified for EHR

incentive funds. When those same providers were post-payment audited for

the exact same thing, HHSC’s refusal to provide such information to either

the auditors or the Ad Hoc Panel members was an ultra vires act, because it

operated to intentionally mislead and misinform the auditors and the Panel

members as to the applicable qualification standard.        The Providers’

evidence on these claims was highlighted in the affidavit of April Lowry. CR

267-270. HHSC responded with no evidence to dispute either claim. CR

224-226. Instead, HHSC’s argument was the metaphorical equivalent of a

shoulder shrug, as HHSC simply responded that such acts were not

categorically ultra vires. CR 226.




Appellants’ Brief
                                     21
6) HHSC staff’s “star chamber” review process was an ultra vires
violation of the Providers’ due process rights. CR 216

       The Providers alleged that HHSC staff acts as the legislature, the

investigator, the prosecutor, the judge, and the jury. The HHSC review

process was its own feedback loop, delivering weighted results at every turn

that cannot be effectively monitored for objectivity, or meaningfully

challenged by the Providers. CR 216, citing Rogers v. Texas Optometry Bd.,

609 S.W.2d 248 (Tex. Civ. App.—Dallas 1980, writ ref'd n.r.e.) (conferring

investigative and adjudicative powers on the same individuals poses such a

risk of actual bias or prejudgment that the practice must be forbidden if the

guarantee of due process is to be adequately implemented.).          HHSC’s

response was a merits argument, not an attack on the jurisdictional facts.

(CR 32-33). As such, HHSC was not entitled to a jurisdictional victory.

7) It was ultra vires for HHSC and its employees to apply the audit
procedure set out in Human Resources Code section 32.070 (and
the concomitant rules 356.202 and 356.1450 adopted under that
statute) to the EHR program. CR 212.

       As explained in the related rule challenge above, section 32.070 does

not apply to EHR grant funds. It applies only to businesses that operate

pursuant to “cost reports,” such as pharmacies, outpatient rehabilitation

facilities (ORFs), and comprehensive outpatient rehabilitation facilities

(CORFs). See 32.070(c)(8). HHSC is not entitled to push any provider


Appellants’ Brief
                                     22
through section 32.070’s audit process for administrative convenience, or to

avoid a contested case hearing. CR 264. HHSC’s plea and supplemental plea

does not explain how or why this statutory section is a better fit than the

other portions of chapter 32. But even if it did, those would have been merits

arguments. Thus, it was error for the trial court to find that HHSC had

overcome this ultra vires claim as a matter of law. CR 226.

Conclusion regarding ultra vires and due process allegations.

       The trial court’s Findings of Fact No. 1 and 2 state that Kool Smiles and

Summit “failed to show that Defendants acted wholly without authority” and

“failed to show that they were denied due process and failed to establish an

inherent right to judicial review under Article I, sections 13 and 19 of the

Texas Constitution.” CR 404. That finding indicates that the trial court

improperly shifted the burden to the Providers, and forced the Providers to

prove their jurisdictional facts as a matter of law. The trial court’s burden-

shifting was error requiring reversal.

IV. The trial court committed reversible error in granting HHSC’s
Motion for Summary Judgment, which contained no reference to
any evidence.

       The trial court erred in overruling the Providers’ objections to HHSC’s

amended summary judgment evidence. CR 390. The ruling allowed the

entirety of HHSC’s summary judgment evidence to be considered by the trial


Appellants’ Brief
                                         23
court, so it obviously resulted in an improper judgment on the HHSC’s

motion for summary judgment and supplementary motion for summary

judgment, as well as HHSC’s plea to the jurisdiction.

       HHSC’s amended summary judgment evidence (CR 281) consists of a

two-page pleading and eighty-five pages of exhibits, for a total of 87 pages.

The pleading purports to authenticate documents attached to HHSC’s earlier

filed First Amended Plea to the Jurisdiction and Motion for Summary

Judgment. There is no such document in the clerk’s record. However, the

arguments below assume HHSC’s motion at CR 20 to be the pleading

referenced in HHSC’s amended summary judgment evidence.

       HHSC’s referenced summary judgment motion begins at CR 41, and

ends at CR 45. Other than HHSC’s recitation of the standard of review for

summary judgment, the entirety of the summary judgment argument spans

less than two pages. See CR 43-45. The pleading does not cite to or reference

any of the exhibits in the summary judgment evidence list. Id.

       Providers assert that HHSC’s failure to reference or cite to any of its

amended summary judgment evidence in its actual motion for summary

judgment bars the trial court’s granting of HHSC summary judgment.

“[W]hen presenting summary judgment proof, a party must specifically

identify the supporting proof on file that it seeks to have considered by the


Appellants’ Brief
                                      24
trial court.” Gonzales v. Shing Wai Brass and Metal Wares Factory, Ltd.,

190 S.W.3d 742, 746 (Tex.App.—San Antonio 2005, no pet.), citing Boeker

v. Syptak, 916 S.W.2d 59, 61 (Tex.App.—Houston[1st Dist.] 1996, no writ). A

voluminous record that does not direct the trial court and the parties to the

evidence on which the movant relies is insufficient to support summary

judgment. See, e.g., Rogers v. Ricane Enterprises, 772 S.W.2d 76, 81 (Tex.

1989); E.B. Smith Co. v. U.S. Fid. & Guar. Co., 850 S.W.2d 621, 623-24.

Granting summary judgment when the HHSC’s motion lack such specificity

was reversible error, because Providers are prevented from analyzing and

evaluating for this court whether such evidence was disputed with regard to

each element of the Providers’ claims.

V. The trial court’s Final Judgment contains error.

       The trial court granted HHSC’s jurisdictional plea against Kool Smiles

and Summit, but then dismissed their claims “with prejudice.” CR 392. If a

court does not have jurisdiction over the subject matter of a lawsuit, the court

must dismiss the case for lack of jurisdiction. Black v. Jackson, 82 S.W.3d

44, 56 (Tex. App.—Tyler 2004, no pet.); Jansen v. Fitzpatrick, 14 S.W.3d

426, 431 (Tex. App.—Houston[14th Dist.], no pet.) The dismissal must be

without prejudice because a dismissal “with prejudice” is effectively a final

ruling on the merits. Id. After a plaintiff has been given a reasonable


Appellants’ Brief
                                      25
opportunity to amend to cure jurisdictional defects and the plaintiff has not

pleaded the facts that support a claim for which there is a waiver immunity,

then, and only then, may the trial court dismiss with prejudice. Harris

County v. Sykes, 136 S.W.3d 635, 639 (Tex. 2004).

       Here, neither the HHSC nor the trial court identified the allegedly fatal

omission in the Providers’ pleadings. Providers’ claims clearly included ultra

vires claims, for which no waiver is required because sovereign immunity

simply is not a bar. Heinrich, at 372. In addition, Providers pled APA section

2001.038 rule challenges, which constitutes a clear waiver of immunity.

Combs, at 720. This was part of the reason Providers sought findings of fact

and conclusions of law—to discern the basis for the ruling and establish how

Providers’ pleadings had omitted necessary elements to support jurisdiction.

The trial court has not indicated the basis for dismissing with prejudice all of

Kool Smiles’ and Summit’s claims.

                                      PRAYER

       Petitioners pray this court:

       1) reverse the trial court’s final judgment granting HHSC’s

          jurisdictional plea so that Kool Smiles’ and Summit’s claims may

          proceed in this case, and




Appellants’ Brief
                                        26
       2) reverse the trial court’s final judgment granting HHSC’s summary

          judgment so that Harlingen’s claims may proceed in this case, and

       3) reverse and remand the trial court’s final judgment.



                              _____________________________
                              Jason Ray
                              Bar No. 24000511
                              RIGGS & RAY, P.C.
                              506 West 14th Street, Suite A
                              Austin, Texas 78701
                              Telephone: (512) 457-9806
                              Facsimile: (512) 457-9866
                              jray@r-alaw.com

                              ATTORNEY FOR DENTISTRY OF
                              BROWNSVILLE, PC, KS2 TX, PC,
                              SUMMIT DENTAL CENTER, LP, AND
                              HARLINGEN FAMILY DENTISTRY,
                              APPELLANTS.




Appellants’ Brief
                                      27
                    CERTIFICATE OF COMPLIANCE

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

5,409 words in Georgia typeface of 14-point.



                                       Jason Ray


                      CERTIFICATE OF SERVICE
      I hereby certify that a true and correct copy of the Petition for Review
was served via e-service on the 13th day of December, 2017 on the following:

KARA HOLSINGER                     Via E-Service
Assistant Attorney General
State Bar No. 24065444
OFFICE OF THE ATTORNEY GENERAL OF TEXAS
Administrative Law Division
P.O. Box 12548, Capitol Station
Austin, Texas 78711-2548



                                               ____________
                                       Jason Ray




Appellants’ Brief
                                      28
                             NO. 03-17-00552-CV


                      In the Third Court of Appeals,
                               Austin Texas


  DENTISTRY OF BROWNSVILLE, PC, KS2 TX, PC, SUMMIT DENTAL CENTER, LP
                   AND HARLINGEN FAMILY DENTISTRY
                                         Appellants,
                                  V.

      TEXAS HEALTH AND HUMAN SERVICES COMMISSION, CHARLES SMITH,
                EXECUTIVE DIRECTOR, AND ANNICK BARTON
                                         Appellees.


       On appeal from the 250th Judicial District Court, Travis County,
                 Texas, Trial Court No. D-1-GN-16-005358
                   The Honorable Karin Crump, Presiding


                        APPELLANTS’ APPENDIX


     1.     June 15, 2017 Final Judgment
     2.     August 15, 2017 Findings of Fact and Conclusions of Law




Appellants’ Brief
                                      29
                                                                                                            Flied In The District Court
                                                                                                             of Travis County, Texas·        U
                                                                                                            AI       JUNJd~ .11r
                               CAUSE NO. D-1-GN-16-005358                                                                 ~- ~
                                                                                                            Velva L. Price, .District lerk
DENTISTRY OF BROWNSVILLE, PC,                        §                      IN THE DISTRICT COURT OF
KS2 TX, PC, SUMMIT DENTAL                            §
CENTER, LP AND HARLINGEN                             §
FAMILY DENTISTRY                                     §
     ·Plaintiffs,                                    §
                                                     §
       v.                                            §
                                                     §
TEXAS HEALTH AND HUMAN                               §                              TRAVIS COUNTY, TEXAS
SERVICES COMMISSION,                                 §
CHARLES SMITH, EXECUTIVE                             §
COMMISSIONER, AND GINA MARIE                         §
MUNIZ                                                §
     Defendants.                                     §                           250TH JUDICIAL DISTRICT

                                     FINAL JUDGMENT

       On May 24, 2017, the Court considered Defendants' First Amended Plea to the

Jurisdiction, the Supplemental Plea to the Jurisdiction, and Motion for Summary Judgment

(collectively the "Motion"). After reviewing the Motion, the Response and Reply thereto, the

pleadings on file, the admissible evidence, the arguments of counsel, and the applicable law, the
                                                                                                        '
Court is of the opinion that Defendants' Motion should be and is hereby GRANTED as follows:

       IT IS ORDERED that Defendants' First Amended Plea to the Jurisdiction and

Supplemental Plea to the Jurisdiction are GRANTED as to all claims by Plaintiffs Dentistry of

Brownsville, PC, KS2 TX, PC, and Summit Dental Center, LP against Defendants.

       IT IS THEREFORE ORDERED that all claims of Plaintiffs Dentistry of Brownsville,

PC, KS2 TX, PC, and Summit Dental Center, LP are DISMISSED with prejudice for want of

subject matter jurisdiction.


                                    I~![!!JMMIIIIIIIMilll.llll~lllfll~.\
                                    \ __   -   -   ---   -- -   -- - - - - - - - - - - - - - - -   --            -    -   j




                                                         1
                                                                                                                              Page 392 of 424
                                  APPENDIX 1
       IT IS FURTHER ORDERED that Defendants' Motion for Summary Judgment is

GRANTED as to all claims by Plaintiff Harlingen Family Dentistry.            IT IS THEREFORE

ORDERED that all claims by Plaintiff Harlingen Family Dentistry's claims are DISMISSED

with prejudice.

       This Final Judgment disposes of all claims and all parties and is final and appealable.



SIGNED this   /5---n-.day of June, 2017.



                                     JUD       RESIDING
                                              CRUMP




                                                2
                                                                                          Page 393 of 424
                                  APPENDIX 1
                                          CAUSE NO. D-1-GN-16-005358

DENTISTRY OF BROWNSVILLE, PC,                                  §         IN THE DISTRICT COURT OF
KS2 TX, PC, SUMMIT DENTAL                                      §
CENTER, LP AND HARLINGEN                                       §
FAMILYDENTISTRY                                                §
     Plaintiffs,                                               §
                                                               §
          v.                                                   §
                                                               §
TEXAS HEALTH AND HUMAN                                         §              TRAVIS COUNTY, TEXAS
SERVICES COMMISSION,                                           §
CHARLES SMITH, EXECUTIVE                                       §
COMMISSIONER, AND GINA MARIE                                   §
MuNIZ                                                          §
     Defendants.                                           §           250TH JUDICIAL DISTRICT


                          FINDINGS OF FACT AND CONCLUSIONS OF LAW

          On May 24, 2017, the Court held a non-evidentiary hearing on Defendants' First

Amended Plea to the Jurisdiction, the Supplemental Plea to the Jurisdiction, and Motion for

Summary Judgment in the above entitled and numbered cause.                             Plaintiffs Dentistry of

Brownsville, PC, KS2 TX, PC, Summit Dental Center, LP and Harlingen Family Dentistry

(collectively "Plaintiffs") and Defendants appeared through their attorneys of record and

announced ready. The record of testimony was duly reported by Jamie Foley, the court reporter

for the 250th Judicial District Court.

          On June 15, 2017, the Court signed a Final Judgment in favor of Defendants and

disposed of all of Plaintiffs' claims. On June 29, 2017, pursuant to Tex. R. Civ. P. 296, Plaintiffs

Dentistry of Brownsville, PC, KS2 TX, PC, and Summit Dental Center, LP filed a Request for

Findings of Fact and Conclusions of Law regarding the Court's rulings on Defendants' First

Amended Plea to the Jurisdiction and the Supplemental Plea to the Jurisdiction. Pursuant to Tex.

R. Civ. P. 297, the Court issues the following findings of fact and conclusions oflaw:
                                                                                               -----...,:

                                             .. co.a   ·mum~DiiUi IIIRIIW IIIIIIIIIIIIM 1111
                                                                     _5~6}5Q'2__   - - - - - -~
                                                                                                        J
Findings of Fact and Conclusions of Law                                                                     Page 403 of 424
                                            APPENDIX 2
                                                   Ultra Vires Claims

Finding of Fact No. 1: Plaintiffs Dentistry of Brownsville, PC, KS2 TX, PC, and Summit Dental

Center, LP failed to show that Defendants acted wholly without authority.

Conclusion of law No. 1: Defendants were not obligated to provide Plaintiffs Dentistry of

Brownsville, PC, KS2 TX, PC, and Summit Dental Center, LP with a contested case hearing

under the Administrative Procedure Act, Texas Government Code Ch. 2001, before issuing a

final decision to recoup incentive payments under the federal Electronic Health Record Incentive

Program.

Conclusion of Law No. 2: The Court lacks subject-matter jurisdiction over the ultra vires claims

of Plaintiffs Dentistry of Brownsville, PC, KS2 TX, PC, and Summit Dental Center, LP.

                                                  Due Process Claims

Finding of Fact No.2: Plaintiffs Dentistry of Brownsville, PC, KS2 TX, PC, and Summit Dental

Center, LP failed to show that they were denied due process and failed to establish an inherent

right to judicial review under Article I, sections 13 and 19 of the Texas Constitution.

Conclusion of Law No. 3:                  The Court lacks subject-matter jurisdiction over the due process

claims of Plaintiffs Dentistry of Brownsville, PC, KS2 TX, PC, and Summit Dental Center, LP.

                                             Declaratory Judgment Claim

Finding of Fact No. 3: Plaintiffs Dentistry of Brownsville, PC, KS2 TX, PC, and Summit Dental

Center, LP failed to plead a waiver of sovereign immunity for their claim that Defendants are not

permitted to use a "vendor hold."

Conclusion of Law No.4:                   The Court lacks subject-matter jurisdiction over the claim by

Plaintiffs Dentistry of Brownsville, PC, KS2 TX, PC, and Summit Dental Center, LP that

Defendants are not permitted to use a "vendor hold."



                                                                                                  Page 2 of3
Findings of Fact and Conclusions of Law                                                          Page 404 of 424
                                              APPENDIX 2
                                           Tex. Gov 't Code§ 2001.038 Claims

Finding of Fact No.4: Plaintiffs Dentistry of Brownsville, PC, KS2 TX, PC, and Summit Dental

Center, LP failed to demonstrate a waiver of sovereign immunity to challenge a final agency

decision under Tex. Gov't Code§ 2001.038.

Conclusion of Law No. 5: The Court lacks subject-matter jurisdiction over the claim of Plaintiffs

Dentistry of Brownsville, PC, KS2 TX, PC, and Summit Dental Center, LP under Tex. Gov't

Code§ 2001.038.


                                          -:fh
          SIGNED this @day of August 2017.




                                                                                         Page 3 of3
Findings of Fact and Conclusions of Law                                                 Page 405 of 424
                                                 APPENDIX 2
