TDMR has learned that Harlingen Family Dentistry has filed a lawsuit against HHSC and the OIG challenging their authority to impose a payment hold on Medicaid providers for a simple program violation. The case, styled Harlingen Family Dentistry, P.C. vs. Texas Health and Human Services Commission and the Office of the Inspector General, Cause No. D-1-GN-13-002402, is pending in Travis County District Court. The lawsuit seeks to strike two HHSC rules. The first rule states that HHSC can impose a payment hold on a Medicaid provider for any alleged program violation, and the second allows the HHSC to retain any funds that have accumulated from a payment hold even if an administrative judge finds that the payment hold was not proper.

Both Federal law and Texas statutes require that a payment hold should be placed on a provider when the HHSC has received a credible allegation of fraud or willful misrepresentation. The challenged rules, which were written and adopted by HHSC alone (not the Legislature), expand the authority to impose a payment hold for any alleged “program violation.” HHSC rules list well over fifty different types of program violations, ranging from failing to maintain documentation, to an unintentional and harmless marketing violation, to receiving an administrative sanction from the provider’s licensing Board for something totally unrelated to Medicaid. The lawsuit claims that the Texas Legislature spelled out the exclusive reasons, and required the high evidentiary standard of “fraud or willful misrepresentation,” as a prerequisite for imposing the “remedy” of a pre-hearing payment hold, so the HHSC does not have the power to re-define the standards for a payment hold.

The second rule being challenged, which was created in October 2012, allows the HHSC keep all the money that accumulates from a payment hold, even if a judge later determines that there was no proper basis to impose the payment hold in the first place.

“These two rules are the main instruments that the HHSC is now using to extract settlements from Medicaid providers,” said Jason Ray, the attorney representing Harlingen Family Dentistry. “We are seeing the OIG implement payment holds on providers and claim that a provider did not record the patient’s vital signs, or didn’t document an extraction procedure, or referenced the wrong tooth in a clinical note. The Legislature did not intend to allow the OIG to use a payment hold for something that trivial. Payment holds are supposed to be used to immediately stop obvious criminal activity from occurring while the State quickly brings a case where the outcome is largely a foregone conclusion.”

The lawsuit also states “the HHSC and the OIG have refused to return funds that were accumulated prior to the payment hold hearing, even after the HHSC issued a final order stating that there was no basis to withhold funds at the 100% payment hold level that was imposed on [Harlingen Family Dentistry].” When asked about the HHSC’s intent to keep funds that accumulate during a payment hold, Mr. Ray responded that “the OIG is supposed to have a credible allegation that the provider has done something seriously wrong before they decide to inflict a payment hold. If a judge later determines that the OIG did not have a reason to impose a payment hold in the first place, where is the justice in allowing the agency to keep the money? That rule encourages the OIG to impose a payment hold even when it knows it does not have a legitimate case, because the OIG gets to keep the money until there is a final overpayment hearing.” He noted that the OIG has never held a final overpayment hearing.

Because the rules that are challenged relate to all providers in the Medicaid program, the lawsuit also requests that the Travis County District Court forward the matter directly to the Third Court of Appeals for a quicker resolution. Texas law permits a court to transfer a rule challenge to the appellate court if the trial court finds it is in the public interest to do so and the case would ordinarily be appealed. Medicaid providers that are affected by payment holds and who are interested in supporting the Motion to Transfer the case immediately to the Third Court of Appeals should contact Jason Ray at (512)457-9812.