The same HHSC judge that overturned a favorable SOAH (State Office of Administrative Hearings) decision in the payment hold case of Antoine Dental of Houston, has denied a motion to have a Medicaid overpayment hearing held at SOAH.
HHSC Administrative Law Judge Rick Gilpin denied a set of motions by attorneys for Harlingen Family Dentistry, one of which was to have HFD’s upcoming Medicaid overpayment hearing held by SOAH. HFD had been through the same payment hold process as Antoine Dental and is now heading to a final overpayment hearing that will determine how much, if any, HFD has to repay to the state based on OIG’s credible allegations of fraud and program violations against HFD.
Earlier HHSC Judge retires after favorable ruling for Medicaid dentist
At the payment hold stage, the HHSC judge in the case, Susan Fekety, had agreed with a SOAH judge that HFD was innocent of allegations of Medicaid fraud and, similar to the Antoine Dental case decision, that the state’s own Medicaid policies were at fault for the problems in Medicaid ortho pre-approvals and spending. ALJ Fekety announced her retirement from HHSC immediately after the decision was made public.
SB 1803 passed to protect providers and circumvented by HHSC
The Texas legislature and Governor Rick Perry had approved legislation, Senate Bill 1803, last legislative session which gave providers the right to decide whether they wanted to have their overpayment hearing before SOAH or HHSC judges. The legislation went into effect September 1st.
Gilpin ruled “Petitioner first makes a plea to the jurisdiction on the grounds that this action must be transferred to the State Office of Administrative Hearings under section 53 1 . 1201 of the Government Code. That statute became effective on September l, 2013, and there is no indication in the statute itself, or in the bill that contained it, Senate Bill 1803, that it was to be applied retroactively. As a result, the court is of the view that Petitioner’s plea to the jurisdiction should be denied.”
Lawyers from OIG had docketed the case with the HHSC administrative courts prior to September 1st without consultation or coordination with HFD’s lawyers. HHSC-OIG did this despite the fact that Jack Stick, the deputy inspector general for enforcement, had told HFD’s principal, Dr. Juan D. Villarreal, at an informal hearing that he would not oppose HFD going to a SOAH court.
Disingenuous Denying of Due Process Continues
HHSC’s legal maneuvering in this case is indicative of the reason why SB 1803 was proposed and passed by the Texas legislature in the first place – that HHSC-OIG was operating disingenuously to deny due process rights to Medicaid providers.
Gilpin’s decision eviscerates the spirit of due process rights that the Texas government found necessary to provide to Medicaid providers with SB 1803.