TDMR Requests Public Hearing on HHSC-OIG Compliance with Due Process Rights under SB 1803

Letters to both Rep. Richard Peña Raymond and Rep. Lois Kolkhorst, chairmen of the House Human Services and Public Health Committees respectively, have been sent from TDMR President Greg Ewing requesting a public hearing on SB1803 and HHSC’s compliance to the legislation.

SB 1803 went into force September 1st last year and is supposed to provide  due process rights for Medicaid providers who come under investigation by the HHSC Office of the Inspector General and are subject to allegations of Medicaid fraud or abuse.

Legislation calls for periodic review

Under section 7 of SB 1803, the above House committees are supposed to, in tandem, “periodically request and review information from the Health and Human Services Commission and the commission ’s office of inspector general to monitor the enforcement of and the protections provided by the changes in law made by this Act and to recommend additional changes in law to further the purposes of this Act.”

“HHSC is gutting the SOAH process”

Ewing, in the letters, gives the following reasons for the request:

1. Only two dental Medicaid providers with “credible allegations of fraud” payment holds have so far have made it to a SOAH payment hold hearing. None to an overpayment hearing. Yet we are three years out from 2011 and almost one full year since SB 1803 came into force. It should be noted that in both cases that the SOAH judges found no evidence of Medicaid fraud or misrepresentation.

2. HHSC is gutting the SOAH process by:
a. Overturning SOAH’s proposal for decisions that are favorable to providers, making the process a waste of time.
This was done in the case of Antoine Dental of Houston. Dr. Janek’s final order in this case, coming out earlier this year, not only overturned the favorable SOAH proposal for decision in the case of Antoine but also deemed that the favorable HHSC final order in the case of Harlingen Family Dentistry from last year was wrong as well.

b. Setting up for cases started before September 1st to be heard in the HHSC appeals court, thereby avoiding SOAH. There are concerns about the impartiality of the judge involved who worked for the Attorney General’s Office for 37 years before becoming a judge.

c. Demanding from providers exorbitant advances for costs relating to a SOAH hearing, payment hold or overpayment, that makes obtaining a hearing on the allegations against them a further financial hardship.

The concern is that HHSC is avoiding due process and is acting as investigator, accuser, prosecution and judge and trying to force providers either into bankruptcy or a settlement without having to prove any wrongdoing.

State treated Xerox and dental Medicaid providers differently

Ewing also brings up the disparity between the treatment of providers and Xerox, the state’s former Medicaid claims administrator.

Again from the letters:

As another point, I do not know if you have read the OAG’s lawsuit against Xerox.

Considering the allegations made in the filing, it is not understandable why the state took so long to move against the company when the state moved so quickly against providers, bankrupting some and putting others into severe financial hardship.

The lawsuit against Xerox alleges:

1. From the very beginning of its contract in January 2004 as Texas’ Medicaid claims administrator and responsible for orthodontic prior authorizations, Xerox NEVER had qualified dental staff review the bulk of these requests but had clerks in violation of their contract.

2. Starting in 2006, these dental clerks WORKED FROM HOME and DID NOT HAVE access to the medical documentation sent with each request.

3. Xerox continually misled HHSC about this.

But the lawsuit discloses more:

1. HHSC-OIG observed the prior authorization process in its 2008 performance audit of Xerox and knew the medical documentation was not being reviewed and the staff were unqualified.

2. It knew exactly how much was being spent on orthodontic treatments during the audit – some $51 million in only a few months.

3. At no time, it appears, did HHSC actually review any prior approval requests it to determine if they were meeting the standard of medical necessity, despite this obvious lapse by their contractor and the tremendous sums being spent.

4. The bottom line is that HHSC took NO ACTION despite these OBVIOUS indicators of contract breakage and potential fraud by the company.


Medicaid dentists misled by both HHSC and Xerox

Lastly, Ewing points out that HHSC misled providers, citing the 2009 agenda of a Medicaid Stakeholders meeting prepared by HHSC dental director Dr. Linda Altenhoff which states providers should assume every prior authorization request is reviewed by a board certified orthodontist.

The letter concludes:

Considering the above, we simply want to see dental Medicaid providers treated fairly and with due process and would like to see a review of HHSC-OIG’s compliance with SB 1803.

The letters were emailed last Friday.

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