Kyle Janek Rules – “Dentists Found Innocent by SOAH, Are Guilty”

On May 7th,  Dr. Kyle Janek, the Executive Commissioner of the Texas Health and Human Services Commission, issued his final order in the case of Antoine Dental Center of Houston.

Upheld reversal of favorable SOAH ruling on Antoine Dental

Kyle JanekAs expected, Janek overturned SOAH’s payment hold ruling, which was favorable for Antoine Dental. That SOAH ruling found no prima facie evidence of fraud and no basis for any level of payment hold—not even on the HHSC-OIG’s assertions that Antoine Dental had committed program violations. The SOAH hearing lasted four-days, and included two SOAH judges.  When the SOAH decision went to HHSC for final consideration, HHSC Judge Gilpin reversed it, ordering a  100% “credible allegation of fraud” payment hold against Antoine Dental for their Medicaid orthodontic billings, even though the SOAH judges could not find evidence to support a payment hold.

Attempt to reverse favorable final order relating to Harlingen Family Dentistry

Incredibly, Commssioner Janek took HHSC Judge Gilpin;s decision and went further.  Because part of the SOAH’s proposal for decision was based on the favorable final order in the case of Harlingen Family Dentistry by HHSC Appeals judge Susan Fekety, Janek took the opportunity to dismiss his own agency’s final order favoring HFD.  He determined that “certain of the findings in the Harlingen Family Dental case incorrectly stated the law, rules, and Medicaid policy and cannot be relied on in this case. ”

This was of course necessary because the HFD final decision eviscerated HHSC-OIG’s claims of Medicaid fraud, as did the SOAH Antoine Dental decision.  Both cases found HHSC-OIG witnesses were not credible and placed the blame for the differences in HLD scoring on the vagueness of the definition of “ectopic eruption” in the Texas Medicaid Manual.

It is rather amazing that three SOAH administrative court judges and one HHSC appeals court judge (Fekety) could “misinterpret” Texas law so broadly by finding in favor of dental Medicaid providers.

No respect for SOAH.  SB 1803 needs to be changed so SOAH determinations are final

What this means of course is:

1.  SOAH judges and their decisions are not only not respected by HHSC, especially when HHSC’s own credibility is at stake, but an overturning of any favorable finding is apparently guaranteed considering only two cases have even got to a SOAH hearing in the last two years.

2. Any pretense of due process at this time is a sham and the efforts to enshrine due process provisions in SB 1803 have been made worthless by HHSC having the ability to be accuser, prosecution and judge with the ability to overturn a SOAH finding.

 HHSC should have to appeal any SOAH ruling it disagrees with to a District Court and prove their case before a real judge, not one of their own staff.

HHSC is apparently it’s own kingdom within the state of Texas and has its own laws and legal system that guarantee a finding of guilty of any Medicaid provider that comes before it.  Even the Attorney General has given the opinion that HHSC courts are not real courts and HHSC judges are not real judges and so are not bound by the Texas Constitution or the Texas Rules of Civil Procedure.

This is not a system that one would expect in Texas.


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