*1 Finally, injurious effect of the trial namely,
court’s ALL the State was SYSTEM, SAINTS HEALTH error — allowed to make racism a al., Appellants, theme of its et case—was likewise minimal. While v. Brown’s may character evidence potential- TEXAS WORKERS’ COMPENSATION ly jurors have diverted appellant’s from COMMISSION, al., Appellees. et claim, self-defense appellant was not enti- Moreover, tled to the defense. the State’s No. 03-02-00803-CV. may evidence helped, appellant have even Texas, of Appeals Court because appellant was able rebut State Austin. evidence with evidence of his own that Brown and appellant were not racists.4 July See, Castaldo, e.g., at 350-51 S.W.3d Overruling Dissent on of Rehearing (acknowledging that while evidence defen- Dec. 2003. dant voluntarily rode with intoxicated driv- may er have shown defendant to be reck-
less, it also helped the defense because it
showed person caused the who acci-
dent was person”). intoxicated and a “bad
The unchallenged evidence in this case
permitted jury to find all of the ele-
ments of charged offense. This evi-
dence was not contradicted. Given this
evidence, jury clearly equally was not
balanced on the guilt issue of or innocence.
Indeed, nothing suggests jury would
have come back with a different verdict
“but for” admission of Brown’s character
evidence.
Accordingly, my opinion it is
erroneous admission of Brown’s character
evidence was harmless. Finding no re- error,
versible I majority’s concur
judgment. help
4. This attempt "light” was reflected in the minimal initial to assess a sentence failed, weight jury place jurors punishment amount of seemed to assessed at 15 Indeed, during punish- years' suggests jury— the error. the trial’s confinement. This phase, jury attempted give appel- despite ment appellant’s produce evi- failure probation aggra- satisfying lant for both the murder and dence all the elements of self-de- only jury’s sympathetic appellant. vated assault. It was after the fense—remained *2 O’Neil, Davis, Dean Paul Matthew
C. Davis, P.C., Austin, Gregory P. Davis & Blaies, Blaies, Hightow- Grant D. Blaies & Besch, Worth, er, LLP, Carl D. San Fort Dallas, Antonio, Ap- Eagan, L. Michael pellants. III, Assistant At-
Dewey Helmcamp, E. General, Law torney Administrative Divi- Austin, sion, Compen- Texas Workers’ sation Commission. denied). MeCalla, Heath,
Dudley D. App.-Austin Davis & writ In this McCalla, PC, Nichols, Mary appeal, Texas Mutual we must determine what standards Austin, Insurance Company, apply to the additional reim- Mutual Company. Insurance bursement requests. would expired temporary have us resurrect an *3 John D. Pringle, Law Offices John D. rule, they argue which was the last stan- Austin, Pringle, for Ace USA. in place guide- dard before the 1992 fee Grove, W. Jon Law Offices of Harris & adoption. argue line’s The Insurers Harris, Austin, Argonaut for Southwest the Commission should base its reimburse- Company. Insurance ment primarily decisions on the terms of Itkin, McClellan, Bradley James A. D. Hospitals’ managed care contracts General, Attorneys Assistant Litiga- Tort during peri- existence the reimbursement Division, Austin, tion for State Office of accept party’s od. While we do not either Management. Risk position, we affirm the trial will court’s declaratory judgment. Schenkkan, Hudson, P.M. Thomas B.
Jr.,
Christian, Christopher
William G.
H.
Graves,
Trickey,
Dougherty, Hearon &
BACKGROUND
PC, Austin,
Moody,
Liberty
Mutual
The story
epic legal dispute
of this
can
Company
Insurance
and Employers Insur-
1987,
Legisla-
be traced back to
when
Company
ance
of Wausau.
ture
directed
Commission
establish
Stone,
Lipscomb
Lough-
Jane
James M.
guideline
and maintain “a
of fair and rea-
lin,
Jacobs,
Wilson Grosenheider Moore &
charges”
sonable fees and
that health-care
LLP, Austin,
Casualty
for Continental
might
facilities
collect for their treatment
Company, et al.
compensation patients.
of workers’
Act of
19,
R.S.,
1987,
1118,
Leg.,
June
70th
ch.
KIDD,
Before Justices
YEAKEL and
(since
5,
3825,
1987 Tex. Gen. Laws
3832
PATTERSON.
repealed).
In response,
the Commission
promulgated
setting compensation
a rule
OPINION
percentage
hospital’s
at a fixed
of each
KIDD,
MACK
Justice.
prices
stated
each service. Until
time,
System
All
providers
Saints Health
and other hos-
health care
had been enti-
(“the
pitals
Hospitals”)1 appeal
compensation”
a declara-
tled to “fair and reasonable
tory judgment
injured
entered in favor of the Tex-
for medical
services rendered
28, 1917,
Compensation
as Workers’
Commission workers.
Act of Mar.
35th
See
(“the Commission”)
R.S.,
103,
1,§
and several insurance
1917 Tex.
Leg.,
ch.
Gen.
(“the
(since
269,
companies
repealed).
and school districts
Insur- Laws
273
Various
ers”)
guideline on
regarding
hospitals challenged
the substantive law to be
the fee
applied
ground
improperly
to claims for additional reimburse-
it had been
Hospi-
ment
on
it for not
adopted,
based
services which
and this Court vacated
compensation meeting
procedural require-
tals rendered to
applicable
workers’
v.
Indus-
hospital
guide-
Hosps.
claimants under a 1992
fee
ments. Methodist
Texas
line,
Bd.,
651,
659
which this Court invalidated
1995.
trial Accident
798 S.W.2d
1990,
w.o.j.)
dism’d
Hosp.
(Tex.App.-Austin
Ass’n v. Texas Workers’
writ
(Tex.
Comm’n,
(by
factual bases
Comp.
omitting
Tex. Lab.Code Ann. 413.011 1992. Reg. See Tex. 1996)). Thus, Guideline”). gives the statute the Com- 1992 Fee guide- While earlier mission the burden of designing a fee lines had reimbursed the at a guideline that provides fair and percentage reasonable fixed of their billed fee-for- reimbursements, service, quality ensures the the 1992 Fee Guideline divided care, medical simultaneously achieves medical service into categories, broad such care, effective medical cost control. surgical See Patient as or assigned intensive Advocates, 80 at Relying per S.W.3d ex- a fixed any diem reimbursement clusively on the Commission’s promulgated categories any treatment these hospi- guidelines, fee Also, the 1989 act not specif- does tal in the state. contrast to the ically provide for guidelines, reimbursement determi- earlier fee the 1992 Fee Guide- nations to be made individual cases line did not geographic take into account without the use of an existing guide- quality differences the cost and of medi- line. cal throughout services the state. See Hosp. Ass’n v. Texas Workers’ Following expiration of the 1991 Comm’n, (Tex. 884, Comp. 911 S.W.2d Emergency Fee Guideline on June denied). App.-Austin writ Several longer Commission no guideline had a fee *5 hospitals challenged the 1992 Fee Guide under which to reimburse Hospitals. the procedural line on and substantive promulgated The Commission a new rule grounds.5 Because the Commission failed providing that in the of a absence valid fee justify adequately to adoption its of a flat guideline the provide Commission would schedule, per diem reimbursement this adequate reimbursement of medical failing Court invalidated the rule as and hospital services rendered under the justification requirem meet the reasoned compensation workers’ program based on 888; ent.6 at Id. see Tex. Gov’t Code the statutory definition of “fair and reason- (West 2000) 2001.033(a) (“the § Ann. (1991), able.” Reg. See 16 Tex. 5210 APA”); see also Tex. Gov’t Code Ann. part by amended in 27 Reg. Tex. 4047 (West 2000) (1999 (2002) (codified § 2001.039 amendment at 28 Tex. Admin. Code (2003)).4 rule, may § confirms that court invalidate rule for Despite 134.1 this the order). good cause, effective date of court’s apparently continued to make Additionally, enjoined this fee-for-service Court the Com- reimbursements based on the mission from Emergency enforcing 1991 Fee Guideline. the .1992 Fee Re- years, imbursements were made in the Guideline. For almost two until our absence of issued, a controlling guideline fee mandate finally more than a the Commission year, until the Commission adopted a com- continued to reimburse the on pletely type different of fee in guideline the basis of the 1992 Fee Guideline. Except justification requirement for the references to the uncodified 6.The reasoned un- statute, the cited sections of Rule 134.1 are der which 1992 Fee Guideline was substantively not different from those in the adopted has been See Act of amended. Jan. convenience, original Rule 134.1. For we 1999, R.S., 558, 2, 18, Leg., § 76th ch. 1999 will continue to reference version con- 9, (current Tex. Gen. Laws 3090 version at tained in the current edition of the adminis- (West § Tex. Gov’t Code Ann. 2001.033 trative code. 2000)). The revised statute does not material- ly change justification analysis. reasoned Re- obtain, Hospitals sought, 5. The but did not an Comm’n, Energy liant v. 62 Public Util. injunction preventing enforcement of the 833, 2001, (Tex.App.-Austin S.W.3d no pending 1992 Fee Guideline the outcome of pet.). declaratory judgment challenge. 133.307(n) (2003). 1, 1997, Under Code August Effective the Commis- Admin. agreement, the con- guideline parties’ settlement adopted sion a second based al- claims were be compensation a tested reimbursement per diem scheme by Review Division. that of Fee the Medical most identical to the 1992 reviewed 4, 1998, (July began the division issu- Reg. Beginning 22 Tex. Guideline. See 1997) (“the Guideline”). hospital- individual denying ing 1997 Fee Some decisions Each decision Fee claims. hospitals initially challenged the 1997 Guideline, question had hospital that suit. but later abandoned stated Thus, documentation only provide made sufficient payments between “failed Guideline, the criteria of Texas date of the 1992 in accordance with effective Fee 413.011(b) 1, sup- 1992, September [section] [ ] and the effective date Labor Code Guideline, 1, 1997, in the change a need for a reimburse- August port of the 1997 Fee hospitals abandoned contention. ment.” While some remained The Commission, requested a de- at again seeking point, sued the their claims this others evidentiary hearing claratory claims novo State judgment their de (SOAH) appli- Hearings under a of Administrative should be reevaluated direct Office Judge the statutory cation of See before an Administrative Law standards. Brown, (ALJ). fifty-three v. consolidated Hosp. Ass’n No. 97-07492 ALJ (250th Co., County, Dist. Travis Tex. filed additional reimbursement 1997). parties attempt in an to resolve the thresh- June settled claims issues, any including determination of agreeing requests legal lawsuit old legal properly additional decided that would compensation would be standards upon statutory govern adequacy based criteria of labor reimbursement. determined, agree code section 413.011. Based on this In December the ALJ *6 ment, the case that Hospitals among things, nonsuited their other statutory governed by and filed their claims with the stan- the Commis be would 413.011(d) of the sion’s Medical Review Division under the dards contained in section on thresh- authority By of section 413.011. the end Labor Code. Based these rulings, the had ALJ selected five test Hospitals approxi filed old 20,000 to be mately pay claims for from the consolidated docket additional cases seeking million. approximately individually. ment resolved $168 liti- being were discovery The Medical Review Division is a Com- issues While proceedings, body empowered gated mission health in SOAH monitor carriers, declaratory judgment filed providers, care insurance and and the compensation against workers’ claimants who re- action the Commission County in district compli- ceive medical services to Insurers a Travis ensure court, poli- asking trial court hold the ance with Commission’s medical that the in and guidelines. contempt and fee Lab.Code order cies Tex. 1996). (West hospitals §Ann. 413.002 The Medical all be reimbursed at what Review Division evaluates claims based claimed be standard and then- by submitted claim- 1992—at between 85% 100% of hospital evidence charges.7 proceedings reimbursement. Tex. The SOAH ing additional See billed Hospitals’ request proceedings were to deter this Court denied the 7. The same also apply the trial court’s period writ of mandamus to reverse mine what limitations would Health questions ruling. In re All Saints’ These two severance claims. causes, al., (Tex.App.- Sys., et No. 03-02-00229CV were severed into two different accordingly basis, were by-case abated. The trial court according will be decided granted summary judgment in the Com- section 413.011’sdefinition of “fair and rea- favor, mission’s ruling and Insurers’ compensation. sonable” Although par- all the reimbursement decisions would be agree ties as an principle abstract governed by statutory standards now reimbursement must be made at “fair and rates, laid out in Texas Labor Code section they reasonable” cannot agree on a 413.011(d).8 definition for that criterion. The Administrative Rules Contentions of the Parties This case revolves around the statute Hospitals argue that, because sec- and the application Commission’s of its tion provides 413.011 that reimbursement rules implementing both its medical ser- only will be pursuant validly made to a
vice fee guidelines and the dispute-reso- promulgated guideline, fee these reim- process. lution The Commission rule bursement only determinations can be governing “Use of the Fee Guidelines” made under guideline the last valid fee provides that: place adoption before the of the invalidated (a) ground rules and the medical 1992 Fee At Guideline. the time the 1992 service standards and limitations as adopted, Fee Guideline was the Commis- by established guidelines the fee sion was issuing reimbursements based on shall properly be used to calculate already expired 1991 Emergency Fee payments due to the health care Hospitals argue Guideline. The that the providers opinion result of our invalidating the 1992 Fee Guideline is to reinstate the 1991
(c) Reimbursement
services not Emergency
govern-
Fee Guideline as the
identified
an established
guide-
ing standard for the reimbursement deci-
line shall be reimbursed at
fair
sions at
In response,
issue.
the Insurers
reasonable rates as described in the
contend that it
appropriate
is
to evaluate
Act,
Compensation
Texas Workers’
each
separately
reimbursement claim
un-
period
until such
that spe-
J/.13.011
der
guideline
provided
the fee
statute as
guidelines
cific fee
are
by
established
the Commission’s rules. Additional-
*7
the commission.
that,
ly, the
suggest
Insurers
under sec-
(c) (em-
413.011(d)’s
134.1(a),
§
28 Tex. Admin. Code
tion
that
indication
reimburse-
added). Thus,
phasis
provides,
Rule 134.1
ment
charged
shall not exceed the fee
for
effect,
in
that all cost determinations re-
similar
patients,
services to similar
the
garding
reimbursements,
medical
provided
fees
for in the
man-
effect,
integrated
guideline
contracts,
whether
into the fee
aged care
in
constitute a
adoption process or
cap
determined on a case-
on the amount to be reimbursed.
16, 2002)
(Tex.1996).
May
(orig. proceeding).
appeal
Austin
This
596
This
itself and the
subsequently
Court
decided the limitations
process provided by the Com-
administrative
period
Hospitals Hospital Systems
issue in
&
remedy
mission constitute a
at law. See Em-
Co.,
Casualty
v. Continental
103 adoption, any reim- Fee 1992 Guideline’s DISCUSSION made must be bursement determinations Emergency Rule to Rule pursuant basis case-by-case that, has under the old This Court held 413.011(d) of interprets section 134.1 as it Act, ren- Railroad Commission services the labor code. an be under invalid rate will recom- dered agree appropriate that We validly place at the rate in pensed enacted an remedy following the invalidation of adopted. time the rate was at the invalid is to rule under the APA administrative Ry. Gulf, Sugar & S.F. v. American C. Co. validly legal adopted last return (Tex.Civ. Co., 1030, 130 S.W.2d 1034 Ref. rule’s existing at the time of the standard 1939, writ); no see also In re App.-Austin in As we reasoned promulgation. (Tex.Civ. Johnson, 775, 554 787 S.W.2d Gulf Raihvay, appropriate rule is because 1977), aff'd, 569 App.-Corpus Christi im retroactively from (invalidated prevents agencies it (Tex.Cr.App.1978) 883 S.W.2d originally adopted not posing regulations pur “leaves that it question statute require compliance in with APA’s just prior it ports to settle as was its However, enactment”); at 1034. we Fillip, v. ments. ineffectual Genzer 130 S.W.2d that, (Tex.Civ.App.-Austin at the agree 134 S.W.2d 733 also with the Insurers dism’d) (effect of invalidated adopted, writ Guideline time 1992 Fee was statute). primarily Based on this authori- validly guideline was no enacted fee that our ty, the contend order Emergency Fee Guide place. The 1991 invalidating the 1992 Fee Guideline auto- Emer line had its own terms. lapsed matically reinstated the reimbursement 120 may only be for gency adopted Rules immediately in effect its scheme before than days again longer for no renewed time, At 1991 adoption. Emer- Ann. days. Tex. Gov’t Code already Fee gency expired Guideline had 2000). 2001.034(c) (West pre § This rule had by its terms. The Commission contin- using administrative agencies from vents ued, however, to least reimburse at some requirements adopt stringent the less at the hospitals provided rates prolong rule and ing emergency an then Emergency Fee Guideline. Accord- ing the rule ad application infini- ingly, they conclude are 2001.034(b) (identical rule tum. See id. entitled to reimbursement under may through notice adopted regular be was, Emergency Fee Guideline because it emergency procedures and comment after practical purposes, applicable stan- expires). rule As this Court held Meth dard at the time of the 1992 Fee Guide- the 1991 odist from time Hospitals, adoption. line’s there Emergency expired, Fee Guideline guideline.9 existed no fee 874 S.W.2d that, Insurers respond between the *8 However, legal 147. a standard for evalu expiration Emergency of the 1991 Fee at did exist ating hospital reimbursements the the adoption and of 1992 Fee Guideline fee was Guideline, guideline the time the 1992 governed no valid Fee Guideline for Rule calls adopted 134.1. 134.1 Consequently, according reimbursements. — Rule and Insurers, case-by-case of “fair a determination the because we must return to in for cases it time reasonable” reimbursement situation as existed at the of the compensation hospitals at the rate finding received No has been made the 1991 Emergency provided the 1991 Fee Emergency uniformly ap- under Fee was Guideline they applied ap- for reimburse- during period question. Guideline when plied in The at pellate record at indicates that some ment those rates. most 104 controlling
which there is no hospital fee sions constitute the retroactive adoption of Therefore, guideline. result our invalidated 1992 Fee Guideline. To date, 1995 hospital decision was that each none proceed- reim- of the contested case ings bursement should according regarding be evaluated the division’s decisions has 413.011(d)’s to section been finalized. definition of “fair We cannot evaluate the merits of until guidelines they reasonable” fee as claims imple- have exhausted by mented their administrative case-by-case Rule 134.1 for de- reme- by completing dies proceedings the SOAH terminations. and properly bringing an administrative Hospitals do not contest appeal judicial review. See 16 Tex. validity Rule 134.1’s applicability or (2003); § 133.307(p)(3) Admin. Code Rail- Rather, these reimbursements. the Hos Gas, road v. Comm’n WBD Oil & 104 pitals attempt argument by bolster their (Tex.2003) (contested 69, S.W.3d 77-78 that, arguing by denying all additional- proceedings case purpose serve different requests point, reimbursement to this rulemaking from and must be reviewed engaged has in “retroactive according to APA applicable procedur- rulemaking.” Agency rules and rates are provisions). al future, set for the and not for past. formally adopted guide- Because no Co., Railroad Comm’n v. Lone Star Gas line existed at the time the 1992 Fee (Tex.1983). 421, 656 S.W.2d agree We enacted, Guideline was we overrule the Hospitals with the prohibits the law Hospitals’ issue. We will now turn to the agencies making from “a in retrospective parameters of “fair and reasonable” reim- quiry to determine whether a prior rate dealing bursement with the Insurers’ was imposing surcharge reasonable and a contentions. when rates were too low or a refund when Managed Care Contracts rates were too high.”10 State v. Public Comm’n, (Tex. Util. 883 S.W.2d provisions The trial court held that the 1994); see also Georgetown Bowen v. 413.011(d) govern of section would the re- 204, 207-08, Hosp., Univ. 488 U.S. 109 imbursement amounts at issue. In the S.Ct. 102 L.Ed.2d (agency abated proceedings, SOAH the ALJ has adopt could not completely regulatory new already managed found that care benefi- dispose retroactively framework to ciaries an equivalent constitute economic claims). However, compensation medicare group compensation income to workers’ the Commission has not a adopted retroac recipients. Focusing on section case; rather, tive rule the Medical 413.011(d)’s requirement that the fee for consistently Review Division has deter services not “the fee charged exceed provid mined that the have not injured similar treatment of an individual ed they sufficient evidence that are enti equivalent living,” of an standard of tled supplemental reimbursement. suggest managed Insurers care Once a developed record is SOAH contracts entered into court, challenged at the district will, such deter effect, the amount cap act as may present minations a case for substan of additional available. However, 413.011(d). tial evidence review. there is no Tex. Ann. See Lab.Code that, indication on this record that those deci- The Insurers contend because our *9 Although ratemaking guidelines analogous rate-setting this is not a case in is to the sense, Compensa- the traditional the Workers' and the functions of the Railroad Commission determining Utility tion Commission’s role in the fee Public Commission. validly a enacted the Fee Guideline made in the absence of decision invalidated statutory of the procedural guideline, on the basis of a defect rather fee must take all Thus, requirements a under into account. to be challenge than substantive the statute, meaning have the judicial parameters yet no “fair reasonable” within and 413.011(d), re- pro- set on the reimbursement review of section the Commission’s been Further, take ac- ceedings. because the reim- decisions must into imbursement factors, guaran- statutory to be on a the bursements are determined count all of case-by-case statutory teeing quality basis the cost control and of under both 413.011(d) not only specifi- Insurers that care. does guidelines, the conclude Section contracts, cap managed pro- cally managed these care which set care contracts as a Montford, Barber, to un- provided vide similar’ sendees those on reimbursement. See Instead, it compensation system, ge- der the workers’ can & Duncan at 8A-14. states not nerically establish the of market for simi- that the fees shall exceed state the during period lar the in which the those similar charged services based on services similarly being applied 1992 Fee was to Guideline rendered to situated individuals. 413.011(d). Hospitals the claims. The re- Ann. See Tex. Lab.Code Thus, spond that the any contracts are irrelevant reimbursement decision made determination any case-by-case by because the Rule 413.1 must Commission under they statutory are based on a cost model take all the fac- different into account of tors, and economic from that keeping although incentives workers’ mind compensation managed may reimbursements. care contracts be evidence of the that otherwise have amount would Because the care managed con they charged, been do not as matter by tracts entered into reveal ceiling law set a on reimbursement. by paid amount certain classes indi much The make of the Insurers viduals certain under economic circum our decision assertion that earlier was services, specific stances for medical we “only procedural,” the Hospitals because say they cannot are irrelevant. In abandoned their “substantive” claims. fight of provisions, section 413.011’s such however, opinion, explicitly Our states important information will be to the final was the 1992 Fee Guideline invalidated However, reimbursement determinations. not adequately because it did describe agree while we do not with the abandoning Commission’s reasons that the managed care contracts are irrele former and adopting fee-for-service model vant, reject we argument the Insurers’ model. In com per statewide diem they per are se determinative. Work adoption menting on the order compensation ers’ reform one of was Guideline, that: Fee we stated by most contentious issues ever addressed Legislature, requiring the Texas most of a The has decided reim- at regular special very different medical services session two sessions. burse Montford, Barber, Duncan, they fall See & Fore the same rate because into category. same The Commission word 1-2. The statute as revised bur broad justify such an action without dens Commission with difficult cannot adequate quality thoroughly task of or describ- assuring providing, care more ing, it A terse controlling while overall medical costs. the data used. reference Advocates, enough is not “empirical billing” Patient at 72. data See 80 S.W.3d rule. by provide a factual for the guidelines, reimbursement basis any extension offered the Com- decision brief comments *10 106
mission do begin explain not even policy the the can never adopted, only be that data or reasoning compel that the con- it policy will not be a valid promulgat- until clusion that a per few diem rates can ed according to the requirements. APA’s very cover procedures different medical Ins., National Ass’n Indep. 925 S.W.2d of in the many and diverse communities of Therefore, at 670-71. when a adopt- rule Texas. ing policy invalid, a new is declared Ass’n, (in Hosp. policy new, 911 applied S.W.2d 888 cannot be until a prop- omitted). short, ternal citations In erly our adopted rule In becomes effective. predicated decision was perception our case, Hospitals’ the “fair and reason- that the adequately Commission had failed able” predicated reimbursements must be justify adopt its decision to policy the of on a fee-for-serviee model rather than a applying per guideline, diem op as per diem basis. posed to the guidelines fee-for-serviee used In respective their summary motions for Thus, past. the only we invalidated not judgment declaratory judgment on the ac- guideline, the fee policy but also the of tion, Hospitals the asked the trial court to reimbursing per claims on a diem basis. declare that the same reimbursement stan- Because our decision invalidated per the prior dards to the adoption of the 1992 Fee model, diem reimbursement we hold that control, Guideline while the Insurers asked the Commission must determine whether the trial court to statutory declare that the have received fair and rea 413.011(d) provisions of section control. sonable reimbursement based on a fee-for- 413.011(d) applied Because section at the model, service as it prior would have done time the 1992 Fee adopted, Guideline was to the 1992 Fee adoption. Guideline’s This the trial court’s determination fulfilled is consistent with purpose of the rea However, requests. purposes both of justification soned requirement, which determining “fair and reasonable” reim- “provide serves to meaningful public par bursement, requirements of section ticipation in rulemaking procedure, 413.011(d) interpreted light must be of opponents allow of the rule to formulate Commission policy as it existed at the time specific challenges, and to ensure that the of the 1992 Fee on a Guideline: fee-for- agency analyzes considers and a rule be service Although Hospitals’ basis. adopting it.” National Ass’n In
fore managed care contracts are relevant dep. Ins., Dep’t Insurers v. Texas 925 determinations, they are (Tex.1996). 667, S.W.2d 670 For the same not themselves a on all cap reimburse- reasons that an improperly adopted agen ment. point, Hospitals’ To this re- cy rate cannot retroactively, be enforced quests for additional reimbursement have when an agency policy makes a change, been denied because there was insufficient justification the reasoned requirement en suggest evidence to sures that policy no will be enacted with were entitled to additional funds. As the adequate out consideration. See Motor continue, proceedings SOAH Veh. Ass’n v. State Farm Manufacturers Mutual, 29, 42, 2856, right to 463 reimbursement must be evaluated U.S. 103 S.Ct. (1983); Ry., light policies.
L.Ed.2d 443 see of the also Commission’s Gulf S.W.2d at 1034. This not mean does overrule the Hospitals’ We second issue.11 3.03(a)(1), against 11. The reprinted Insurers seek sanctions Prof'l Conduct in Tex. counsel, Ann., (West Hospitals' asserting appeal that their app. Gov't Code tit. G. A subtit. frivolous,” 1988). “objectively is Tex.R.App. deny P. request We will for sanc- lacking Disciplinary in candor. Tex. R. tions. *11 413.011(d) provided as ments of section CONCLUSION appropriate in a manner in Rule 314.1 based on a rule is invalidated When means This policy justification requirement, APA’s reasoned calculated must be that reimbursement any con- specific provisions and both its account taking into basis a fee-for-service the stan- changes policy comitant revert care, and of cost-savings quality both time of the rule’s place dard con- care managed case, In this the determination adoption. se relevant, per do not tracts, although of “fair and reasonable” on reimbursement. cap constitute is affirmed. trial court’s decision statutory require- under the must be made
APPENDIX STATEMENT 1 TO DOCKETING
ATTACHMENT AND COUNSEL SYSTEMS AND HOSPITAL LIST OF APPELLANT HOSPITAL Hospital Systems: following Hospitals and for the Counsel Dean Davis C. Bar No. 05464000 State Paul Matthew O’Neil State Bar No. Davis, P.C. Davis & P.O. Box 1588 Austin, Texas 78767 (512) Telephone: 343-6248 Facsimile 343-0121 System operates: All Health Saints and/or —Owns Episcopal Hospital/Fort All Worth Saints Episcopal Hospital/Cityview All Saints operates: Baptist System Health and/or —Owns Baptist Medical Center Hospital Baptist North Central Baptist Hospital Northeast Baptist Hospital St. Luke’s Baptist Hospital Southeast System operates: Baylor Health Care and/or —Owns University Baylor Medical Center Grapevine Baylor Medical Center at University at Richardson Baylor Medical Center Irving Baylor Medical Center at System Hospital District— University Health County Hospital District Bexar D/B/A operates: Owns and/or University Hospital Health Care Charity the Incarnate Word (Formerly Health The Sisters Christus System) operates: and/or —Owns TX Hospital Beaumont, St. Elizabeth — Hospital Bay, TX St. John —Nassau TX Joseph Hospital Houston, St. — TX Joseph’s System Paris, Health St. — Arthur, TX Mary’s Hospital St. —Port Antonio, TX System Rosa Health Care Santa —San LA System Shreveport, Sehumpert Health — Christi, TX System Corpus Spohn Health — states, various hospitals in operates Corporation Healthcare Columbia/HCA —Owns subsidiaries, entities. The business joint-ventures and other wholly-owned through hospitals include: *12 Community Hospital Alvin Houston Bay Area Medical Corpus Center Christi Bayshore Medical Center Pasadena Beaumont Surgical Hospital Beaumont Medical (also Center) known as Beaumont Medical Bellair Medical Center Houston Regional Brownwood Medical Center Brownwood Columbia Clear Lake Medical Center Webster Columbia East Houston Medical Center Houston Columbia Fort City Bend Medical Center Missouri Columbia Gulf Coast Medical Center Columbia Mainland Wharton City Medical Center Texas (Closed) Hospital Columbia Medical Arts of Dallas Dallas Columbia Medical College Center —Brazos Station Columbia Medical Center of El El Columbia El Paso —East Paso El Paso Medical Center of Paso —West Columbia Medical Center at Lancaster Lancaster Columbia Medical Center of Lewisville Lewisville Columbia Medical Center of Plano Plano Angelo Angelo Columbia Medical Center of San San Columbia Medical Center of Terrell Terrell City Hospital Columbia Medical Dallas Dallas Metropolitan Hospital Columbia Methodist Antonio San Hospital Columbia North Hills North Richland Hills Community Hospital Columbia San Antonio San Antonio Specialty Hospital Columbia of Houston Houston Spring Columbia Branch Medical Center Houston Valley Regional Columbia Medical Center Brownsville Community Medical Center —Sherman Sherman Conroe Conroe Medical Center Dallas Southwest Medical Center Denton De Tar Dallas Denton Regional Medical Center Hospital Victoria Hospital Doctors Houston —Airline Hospital of Doctors Laredo Laredo Regional Corpus Doctors Katy Medical Center Christi Katy Medical Center Kingwood Kingwood Medical Center Longview Regional Longview Medical Center Medical Center Terrell Terrell Ambulatory Surgery Hospital Methodist San Antonio Regional Hospital Navarro Corsicana North Austin Medical Center (formerly Diagnostic Hospital) known as Austin Austin Bay Hospital North Aransas Pass North Houston Medical Center (includes Parkway campus) North Houston Houston — North Central Medical Center (formerly McKinney) Medical Center North Texas Medical Center) (formerly McKinney Hospital Northeast Methodist Antonio San Regional Hospital Corpus Northwest Christi Surgical Hospital Panhandle Amarillo Plaza Medical Center —Fort Worth Fort Worth Hospital Corpus Rehabilitation of South Texas Christi Regional Hospital Rio Grande McAllen Rosewood Medical Center Houston Austin Center David’s Medical St. Branch) (closed Houston Houston S. Sam Silsbee Hospital Doctor’s Silsbee Austin Austin Medical Center South Antonio San Houston Hospital Texas Methodist Southwest Hospital Orthopedic Houston Hospital Top’s Specialty *13 Houston Houston Westbury Hospital Medical Center West Houston Lufkin Heights Medical Center Woodland operates: System Health Covenant and/or —Owns Hospital Hospital Methodist Methodist —Lubbock —Levelland Mary’s of the Plains —Lubbock St. Hospital Specialty Dallas Tyler, hospital in operates the main Center-Tyler East Texas Medical and/or —Owns throughout East Texas Texas and 12 other facilities Center Hendrick Medical Baptist Medical Center Hillcrest Hospital Arts Medical Mercy Regional Medical Center operates: System' Healthcare Methodist and/or —Owns TX Hospital Houston, The Methodist — TX Hospital Baytown, Methodist San Jacinto — Texas Osteopathic Medical Center Of operates: System Health Shannon and/or —Owns Hospital Texas Memorial Medical Center Shannon West Shannon d/b/a Medical Center Texoma Trinity System Frances Health Mother Regional Health Care Bethania System (Formerly Regional Health Care United — 10-15-97) Center, Hospital-Merged Wichita General Valley Baptist Medical Center Hospital Systems: following for the Counsel Gregory P. Blaies Bar No. 02412650 State D. Blaies Grant Bar No. 00788669 State Hightower, LLP Blaies & Street, Suite 1501 301 Commerce Worth, Fort Texas (817) Telephone: 334-0800 (817) Facsimile: 334-0574 Resources, Operates: Inc.—Owns
Texas Health Hospital Harris Care Continued as: does business operates System, Health Inc.—Owns and/or and/or Presbyterian Hospital —Winnsboro Presbyterian Hospital —Kaufman Hospital Presbyterian —Plano Presbyterian Hospital —Dallas County Erath Harris Methdist Worth Harris Methodist —Fort Northwest Harris Methodist H-E-B Harris Methodist Southwest Harris Methodist Paul Medical Center St. Regional Hospital Walls Carl D. Besch State Bar No. 02260000 Building GPM Life Tower —North Loop 800 N.W. Suite 580 Antonio, San Texas 78216 (210)
Telephone: 377-1000 Facsimile: 377-1125 Management System
Accord Medical Nix Health Care d/b/a following Hospital: for the Counsel Eagan Michael L. Bar No. State Expy., 11520 N. Central Suite 202 *14 Dallas, Texas 75243 (214) 221-4121 (214) (Telecopy) 221-4123 Regional Hospital
Tomball
ATTACHMENT TO DOCKETING STATEMENT LIST AND OF APPELLEES COUNSEL Appellees/Trial Court Plaintiffs: Casualty Company Continental Texas Association of Management School Boards Risk Fund Mid-Century Insurance Co. Truck Exchange Insurance Exchange Farmers Insurance
Argonaut Company Southwest Insurance Casualty Company Colonial Insurance City of San Antonio City of Houston Independent Houston School District Irving Independent School District Independent Northside School district Corporations KMart City Angelo of San City of El Paso Casualty Association Company Insurance Casualty Company Fire and Casualty Company Fire and of Connecticut Indemnity Company Pacific Insurance Security Company Insurance Security Company Insurance of Hartford
Counsel: Stone, Lipscomb Esq. Jane Bar State No. 19295300 Loughlin, Esq. M. James Bar State No. 00795489 Wilson, GROSEnheideR, Jacobs, Mooee & P.O. Box 1584 Austin, Texas 78767-1584 (512) Telephone: 478-1657 Facsimile: 478-9016
HI Grove, Esq. W. Jon Bar No. 05298200 State Harris HARRIS& Law Offices of Road Bee Cave 5300 Budding Suite Austin, Texas 78746 (512) 346-5533 Telephone: (512) 346-2539 Facsimile:
Appellees/Trial Defendant: Court Compensation Commission Texas Workers’
Counsel: III Dewey Helmcamp, Bar No. State Attorney General Assistant Attorney GeneRal Office 12548, Capitol Station P.O. Box Austin, Texas 78711-2548 (512) 475-4300 Telephone: (512) 320-0167 Facsimile:
Appellee/Trial Intervenor: Court *15 Management Office of Risk State
Counsel: A. Itkin James Bar No. 24032461 State Attorney Assistant General Bradley D. McClellan Bar No. 13395980 State Attorney Assistant General Litigation Tort Division Attorney of the General Office P.O. Box 12548 Austin, Texas 78711-2548 (512) Phone: 463-2197 (512) 463-2224 Facsimile:
Appellees/Trial Intervenors: Court USA, and its members: ACE Company Lloyds American Insurance Ace Ace Fire Underwriters Insurance Company Casualty Company Property and Ace Century Company Reinsurance Company Fire Insurance Westchester Company Employers Pacific Insurance Company Underwriters Insurance Industrial Company North America Insurance Company Texas Insurance Ace Company American Reinsurance Ace Ace American Insurance Company Indemnity Company Century Company Fire and Marine Bankers Standard Company Insurance Bankers Standard Indemnity of North America Company Insurance Company Indemnity Insurance Ace
Counsel: Pringle John D. State Bar No. 16330300 PRIngle Law Offices of John D. Vaughn Building Brazos, Suite 603
Austin, Texas 78701 (512) Telephone: 472-8742 (512) Facsimile: 472-8745
Appellee/Trial Court Intervenor: Company
Texas Mutual Insurance
Counsel: Mary Nichols State Bar No. 01831600 Company Texas Mutual InsuRance Street,
221 West 6th Suite 300 Austin, Texas 78701 (512) Telephone: 433-2723 (512) Facsimile: 436-3214
Dudley D. McCalla
State Bar No. 13354000 Health, P.C. McCalla, Davis & Perry Building Brooks
Austin, Texas 78701 (512) Telephone: 478-5671 Facsimile: 476-1451
Appellees/Trial Court Intervenors: *16 Liberty Company Mutual Insurance
Employers Company Insurance of Wausau
Counsel: P.M. Schenkkan State Bar No. 17741500 Moody GRAVES,Dougherty, Hearon & Avenue, Congress Suite 2300
Austin, Texas 78701 (512) Telephone: 480-5600 Facsimile: 478-1976 PATTERSON, Justice, JAN P. procedural posture ical of this case: dissenting rehearing. motion for judge administrative law abated test being discovery cases —while issues were reasoning Because the underlying our litigated Hospitals filed —because important presented resolution of the issue declaratory judgment. suit for It was this by appeal implications this has for thou- discovery dispute spawned part claims, original opinion sands and the litigation. unwittingly complicates pro- future others, ceedings this case and I would ground The unassailable narrow for de- case, grant appellees’ rehearing. correctly motion for cision in this appellees as 134.1(c) observe, opinion acknowledges requires Court’s the crit- is that rule governed decisions be statutory out standards set basic 413.011(d). Code Texas Labor section what
This coincides with agreed com- to in the 1997 agreement
promise settlement when nonsuited with and dismissed
prejudice against their claims the Commis- is Any parsing
sion. finer of the standard
premature discovery and must await Ac-
completed hearings. administrative grant I would motion
cordingly, appellees’ clarify re- rehearing to the issues and dispute.
solve this Because the Court not, respectfully I
does dissent. SOLUTIONS, OFFICE
IKON
INC., Appellant,
v. EIFERT, Appellee.
Steven
No. 14-01-01104-CV. Texas, Appeals
Court of (14th Dist.).
Houston
July *17 En
Rehearing Banc Overruled
Feb.