On Sunday, the Austin American Statesman’s Eric Dexheimer reported on a brand new problem with due process rights for dental Medicaid providers dealing with HHSC-OIG – they must pay tens of thousands of dollars upfront as security for SOAH (State Office of Administrative Hearings) court costs for payment hold or overpayment hearings.
Due process legislation used against dentists
This new development arises from a clause under SB 1803 which requires providers to provide “security” for half the court costs at SOAH. TDMR was in favor of 1803 but didn’t foresee that the provision would be used to ransom justice from the state.
The following is the provision:
Unless otherwise determined by the administrative law judge for good cause at an expedited administrative hearing, the state and the provider shall each be responsible for:
(A) one-half of the costs charged by the State Office of Administrative Hearings;
(B) one-half of the costs for transcribing the hearing; (C) the party’s own costs related to the hearing, including the costs associated with preparation for the hearing, discovery, depositions, and subpoenas, service of process and witness expenses, travel expenses, and investigation expenses; and (D) all other costs associated with the hearing that are incurred by the party, including attorney’s fees.
The executive commissioner and the State Office of Administrative Hearings shall jointly adopt rules that reguire a provider, before an expedited administrative hearing, to advance security for the costs for which the provider is responsible under that subdivision.
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“It’s abusive”
However we will republish this small section as it contains the key arguments:
“The bill was supported by the dentists and the lobbying organization they created to fight back against the fraud investigations. Texas Dentists for Medicaid Reform had argued strenuously for more transparency and due process in the state’s investigations, said Tony Canales, a Corpus Christi defense attorney who was involved in the process.
“In the maneuvering to get the bill passed, state Rep. Lois Kolkhorst, who chaired the House Committee on Public Health, added a last-minute amendment to the bill. Among other things, it required the parties to split the cost of a State Office of Administrative Hearings trial. Human services commission spokeswoman Stephanie Goodman said her agency supported the provision because it anticipated a surge in Medicaid cases that would have to be paid for somehow; in most cases, the Health and Human Services Commission pays the administrative hearings office to adjudicate cases.
“Kolkhorst, R-Brenham, said the provision was supported by both sides. “It is ironic that there are now providers who are claiming that the amendment is problematic, because their own hired lobbyists and advocates fought for and agreed to this language,” she wrote in an emailed response to questions. “The amendment offers a logical and fair alternative to the traditional process and passed the House unanimously.”
“Canales said it’s true he knew about the amendment — but that he didn’t foresee the high upfront costs that would be imposed for the providers to get a hearing. “This is too much money,” he said. “It’s abusive.”
It appears that the state will take any legislation and attempt to use it against Medicaid providers so they get denied an impartial and fair hearing and their day in court.