No. 12
- 14
- 00256
- CV IN THE COURT OF APPEALS FOR THE TWELFTH JUDICIAL DISTRICT TYLER , TEXAS TROY W. SIMMONS, D.D.S., P.C. AND TROY W. SIMMONS, D.D.S. , Appellant s , v. TEXAS HEALTH AND HUMAN SERVICES C OMMISSION , Appellee

. On A p peal from the County Court at La w No. 2, Gregg County, Texas Cause No. 2014

- 933 -CCL2 APPELLEE’S BRIEF
KEN PAXTON Attorney General of Texas
CHARLES E. ROY First Assistant Attorney General
JAMES E. DAVIS Deputy Attorney General for Civil Litigation
JENNIFER L. HOPGOOD State Bar No. 240 73010 Administrative Law Division RAYMOND C. WINTER State Bar No. 21791950 Chief, Civil Medicaid Fraud Division Assistant Attorneys General P. O. Box 12548 Austin, TX 78711

- 2548 Attorneys for Texas Health and Human Services Commission, Office of Inspector General Oral Argument Requested ACCEPTED 12-14-00256-CV TWELFTH COURT OF APPEALS

TYLER, TEXAS 1/12/2015 4:11:57 PM CATHY LUSK CLERKI DENTITY OF PARTIES AND COUNSEL The following is a complete list of all parties, as well as the names and addresses of all counsel. Plaintiff s /

Appellant s Trial and Appellate Counsel Troy W. Simmons, D.D.S ., P.C. and Joseph R. Willie T roy W. S immons , D.D.S. Willie & Associates, P.C. 4151 Southwest Freeway, Suite 490 Houston, Texas 77027 Defendant /

Appellee Trial and Appellate Counsel Texas Health and Human Services Office of the Attorney General Commission Jennifer L. Hopgood Administrative Law Division Raymond C. Winter Chief, Civil Medicaid Fraud Division Assistant Attorneys General P

. O

. Box 12548 Austin, TX 78711

- 2548

iT ABLE OF CONTENTS

IDENTITY OF PARTIES AND COUNSEL

................................ ............................ i TABLE OF CONTENTS

................................ ................................ .......................... ii INDEX OF AUTHORITIES

................................ ................................ .................... iv STATEMENT OF THE CASE

................................ ................................ ................ ix ISSUE PRESENTED

- CORRECTED

................................ ................................ ...... x APPELLEE’S BRIEF

................................ ................................ ................................ 1 STATEMENT OF FACTS

................................ ................................ ........................ 2 The Parties

................................ ................................ ................................ ............. 2 HHSC
- OIG’s administrative enforcement actions to combat waste, fraud, and abuse

................................ ................................ ................................ ............... 3 Failure to Appeal Final Notice of Overpayment

................................ ............... 5 Separate Payment Hold Proceeding against Dr. Simmons

.............................. 7 Applying Payment Hold Monies to Satisfy Final Overpayment Debt

............ 8 Attack on Agency’s Final Determination

................................ ........................... 9 SUMMARY OF THE ARGUMENT

................................ ................................ ...... 10 STANDARD OF REVIEW

................................ ................................ ..................... 13 ARGUMENT

................................ ................................ ................................ ........... 13 I. The trial court properly granted HHSC’s Ple a to the Jurisdiction.

........ 13 A. Sovereign immunity bars suit, and Dr. Simmons fails to argue

........ 13 waiver.

................................ ................................ ................................ .............. 13 1. Improper Suit for Judicial Review

................................ ....................... 15 2. Improper Attempt to Control State Action

................................ ......... 16

ii3. HHSC’s discretionary authority to turn overpayment sanction into a final debt

................................ ................................ ................................ .......... 16 B. Simmons failed to exhaust his administrative remedies and now

..... 20 seeks a collateral attack on a final agency decision.

................................ .... 20 C. Dr. Simmons’ UDJA claim, even if valid , could not confer jurisdiction on a trial court and would result only in an advisory opinion. 24 1. Independent Jurisdiction No t Conferred

................................ ............. 24 2. Advisory Opinion

................................ ................................ ................... 25 II. Dr. Simmons’ Purported Issue No. 2 is not properly before the Court. 27 CONCLUSION AND PRAYER

................................ ................................ ............. 27 CERTIFICATE OF COMPLIANCE

................................ ................................ ....... 29 CERTIFICATE OF SERVICE

................................ ................................ ................ 29 APPENDIX

................................ ................................ ................................ .............. 30

iiiI NDEX OF AUTHORITIES Cases
Anderson v. City of Seven Points , 806 S.W.2d 791, 793 (Tex. 1991)

..................... 22
AVCO Co rp. v. Interstate Sw., Ltd., 251 S.W.3d 632, 663 (Tex. App.

— Houston [14th Dist.] 2007, pet. denied)

................................ ................................ ................. 31
Bacon v. Tex. Historical Comm’n , 411 S.W.3d 161, 173 (Tex. App.

— Austin 2013, no pet.)

................................ ................................ ................................ ...................... 17 Billings v. Concordia Heritage Assoc. , 960 S.W.2d 688, 693 (Tex. App.

— El Paso 1997, writ denied)

................................ ................................ ................................ .... 33
Cash Am. Int'l Inc. v. Bennett , 35 S.W.3d 12, 15 (Tex. 2000)

......................... 25, 26 City of Athens v. MacAvoy , 260 S.W.3d 676, 678 (Tex. App.

— Tyler 2008, no pet.)

................................ ................................ ................................ ................................ .. 15 City of El Paso v. Heinrich , 284 S.W.3d 366, 371

- 72 (Tex. 2009)

...... 12, 21 , 22, 23 City of Longview v. Head , 33 S.W.3d 47, 51 (Tex. App.

— Tyler 2000, no pet.)

.... 15 City of Tyler v. Smith , No. 12

- 08

- 00159

- CV, 2009 WL 4757576, at *4 (Tex. App.

— Tyler Dec. 14, 2009, no pet.) (mem. op.)

................................ .................... 16
Creedmoor

- Maha Water Supply Corp. v. Tex. Comm’ n on Envtl. Quality , 307 S.W.3d 505, 526 (Tex. App.

— Austin 2010, no pet.)

................................ .............. 29 Desi Driving Sch. v. Tex. Educ. Agency , 2014 WL 1018086, at *1 (Tex. App.

— Austin Mar. 14, 2014, no pet.)

................................ ................................ ................. 32 Dir. of Dep’t of Agric. & Env’t v. Printing Indus. Ass’n of Tex. , 600 S.W.2d 264, 265 (Tex. 1980)

................................ ................................ ................................ ........ 20

ivFriends of Canyon Lake v. Guadalupe

- Blanco River Auth. , 96 S.W.3d 519, 524 (Tex. App.

— Austin 2002, pet. denied)

................................ ................................ ... 29 Friends of Canyon Lake, Inc. v. Guadalupe

- Blanco River Auth. , 96 S.W.3d 519, 525 (Tex. App.

— Austin 2002, pet. denied)

................................ ............................ 13 Griffin v. Hawn , 341 S.W.2d 151, 152

- 53 (Tex. 1960)

................................ ........... 20 Harris Cnty. v. Sykes , 136 S.W.3d 635, 639 (Tex. 2003)

................................ ........ 35 Hill v. Bd. of Trs. of the Ret. Sys. of Tex. , 40 S.W.3d 676, 678 (Tex. App.

— Austin 2001, no pet.)

................................ ................................ ................................ ........... 27
Hosner v. DeYoung , 1 Tex. 764, 769 (1847)

................................ ........................... 16 In re O'Quinn, 355 S.W.3d 857, 862 (Tex. App.

— Houston [1st Dist.] 2011, orig. proceeding [mand. denied])

................................ ................................ ..................... 30 Jackson v. State Office of Admin. Hearings , 351 S.W.3d 290, 301 (Tex. 2011)

.... 14 Kentucky v. Graham , 473 U.S. 159, 166 (1985)

................................ ...................... 19
L ueck v. State , 325 S.W.3d 752, 765

- 66 (Tex. App.

— Austin 2010, pet. denied) 26, 27 Marble Falls Indep. Sch. Dist. , 275 S.W.3d 558, 566

- 67 (Tex. App.

— Austin 2008, pet. denied)

................................ ................................ ................................ ............... 32 Mayhew v. Town of Sunnyvale , 964 S.W.2d 922 (Tex. 1998)

................................ . 14 MBM Fin. Corp. v. Wo odlands Operating Co. , 292 S.W.3d 660, 669 (Tex. 2009) 28 McAllen Hosps. v. Suehs , 426 S.W.3d 304, 316 (Tex. App.

— Amarillo 2014, no pet.)

................................ ................................ ................................ ........................... 21
Prairie View A&M v. Chatha , 381 S.W.3d 500, 511 (Tex. 2012)

................... 12, 27

vReed v. Prince , 194 S.W.3d 101, 107 (Tex. App.

— T exarkana 2006, pet. denied) 19, 27 Republic Ins. Co. v. Davis, 856 S.W.2d 158, 164 (Tex. 1993)

............................... 31 State Bar of Tex. v. Heard , 603 S.W.2d 829, 833 (Tex. 1980)

............................... 20 Subaru of Am., Inc. v. David McDavid Nissan, Inc

. , 84 S.W.3d 212, 221 (Tex. 2002)

................................ ................................ ................................ ........................ 24
Tex. A&M U nìv. Sys. v. Koseoglu , 233 S.W.3d 835, 844 (Tex. 2007)

............. 15, 19 Tex. Ass’n of Bus. v. Tex. Air Control Bd. , 852 S.W.2d 440, 444 (Tex. 1993) 15, 31, 32, 33 Tex. Comm’n on Envtl. Quality v. Kelsoe , 286 S.W.3d 91, 94

- 95 (Tex. App.

— Austin 2009, pet. denied)

................................ ................................ .................. 24, 29 Tex. Dep’t of Ins. v. Reconveyance Servs., Inc. , 306 S.W.3d 256, 258

- 59 (Tex. 2010)

................................ ................................ ................................ ........... 12, 21, 23 Tex. Dep’t of Protective & Regulatory Servs. v. Mega Child Care , l45 S.W.3d 170, 198 (Tex. 2004)

................................ ................................ ................................ ........ 16 Tex. Dep’t of Transp. v. Jones , 8 S.W.3d 636, 638 (Tex. 19 99) (per curiam)

........ 19 Tex. Dep’t of Transp. v. Sefzik , 355 S.W.3d 618, 621 (Tex. 2011)

.................. 11, 18
Tex. Natural Res. Conservation Comm’n v. IT

- Davy , 74 S.W.3d 849, 853 (Tex. 2002)

................................ ................................ ................................ ..... 11, 14, 19, 30 Tex. Parks & Wildlife Dep’t v. Garland , 31 S.W.3d 920, 925 (Tex. App.

— Tyler 2010, no pet.)

................................ ................................ ................................ ........... 17
TFJA v. Tex. Comm’n on Envtl. Quality , 368 S.W.3d 727, 735

- 36 (Tex. App.

— Austin 2012, pet. denied)

................................ ................................ ......................... 29

viTwenty Wings Ltd. v. Tex. Alcoholic Beverage Comm’n, No. 2

- 05

- 355

- CV, 2006 WL 1791707, at *1 (Tex. App.

— Fort Worth June 29, 2006, no pet.) (mem. op.)

. 26 Vickery v. Stanley , 2010 WL 4638714, at *4 (Tex. App.

— Tyler Nov. 17, 2010, no pet.)

................................ ................................ ................................ ........................... 28
Wilson v . Tex. Workers’ Comp. Comm’n , No. 12

- 01

- 00337

- CV, 2003 WL 22681793, at *3 (Tex. App.

— Tyler Nov. 13, 2003, no pet.) (mem. op.)

............... 16
Wilson v. Wilson , 378 S.W.2d 156, 160 (Tex. App.

— Tyler, 1964 no writ)

........... 30
Statutes
42 U.S.C. § 1396

................................ ................................ ................................ ........ 4 Tex. Civ. Prac. & Rem. Code § 15.014

................................ ................................ ... 23
Tex. Civ. Prac. & Rem. Code § 37.002(b)

................................ ............................... 31 Tex. Civ. Prac. & Rem. Code § 37.003(a)

................................ ............................... 30
Tex. C iv. Prac. & Rem. Code § 65.023(a)

................................ ............................... 23 Tex. Gov’t Code Ann. § 2001.171

................................ .............................. 18, 26, 27
Tex. Gov’t Code Ann. § 2001.176

................................ ................................ ....... 2, 34 Tex. Gov’t Code Ann. § 2001.176(b)(1)

................................ ................................ . 18 Tex. Gov’t Code Ann. § 531.001

................................ ................................ ............... 4 Tex. Gov’t Code Ann. § 531.102

................................ ................................ ............... 3 Tex. Gov’t Code Ann. § 531.1201 (a)

................................ ................................ .... 6, 7 Tex. Hum. Res. Code Ann. § 32.021(a)

................................ ................................ .... 2

viiTex. Hum. Res. Code Ann. § 32.039(b)(1)

................................ ................................ 4 Tex. R. App. P. 38.2(a)(1)(B)

................................ ................................ ................ x, 7
Rules
1 Tex. Admin. Code § 371.11

................................ ................................ .................... 8 1 Tex. Admin. Code § 371.1605

................................ ................................ ................ 4
1 Tex. Admin. Code § 371.1607(50)

................................ ................................ ......... 8 1 Tex. Admin. Code § 371.1617

................................ ................................ ................ 5 1 Tex. Admin. Code § 371.1617(b)

................................ ................................ ........... 7 1 Tex. Admin. Code § 371.1617(e)(1)

................................ ...................... 5, 9, 13, 22 1 Tex. Admin. Code § 371.1711(d)(2)

................................ ................................ ...... 6
1 Te x. Admin. Code § 371.1721(a)

................................ ................................ ........... 4 1 Tex. Admin. Code § 371.1721(b)(l)

................................ ................................ ....... 4 1 Tex. Admin. Code § 371.1723

................................ ................................ .......... 5, 25

viiiSTATEMENT OF THE CAS E Nature of the C ase : This is an appeal from a final judgment by the County Court in Gregg County granting the Texas Health and Human Services Commission’s (“HHSC”) plea to the jurisdiction and dismissing Troy W. Simmons, D.D.S., P.C. and Troy W. Simmons, D.D.S. ’s (“Dr. Simmons”) petition for declaratory judgment (“Trial Court Petition”). C R 4

- 11

. Trial Court : County Court at Law No. 2 Gregg County, the Honorable Vincent L. Dulweber , Presiding. Trial Court Pro ceeding : Appellant Dr. Simmons brought suit seeking an order from the trial c ourt to extinguish his liability to HHSC for a final overpayment debt and to compel HHSC to release to Dr. Simmons funds it had applied to satisfy a portion of the final debt

. Se e CR 4

- 11. HHSC filed a plea to the jurisdiction, a sserting that the trial court lacked jurisdiction over Dr. Simmons’ suit because of sovereign immunity, a lack of an ultra vires exception, and failure to exhaust administrative remedies

. CR 12

- 40, 45

- 109

. After considering the arguments of the parties, and holding a hearing, the trial court granted HHSC ’ s plea to the jurisdiction and dismissed Dr. Simmons ’ lawsuit. CR 124

. Trial Court Disposition : T he trial court entered a final order granting HHSC ’ s ple a to the jurisdiction and dismissing Dr. Simmons’ lawsuit

. See Final Order, CR 124, and letter from Judge Dulweber, attached at Appe ndix 1

. Dr. Simmons appeals this final order. CR 130

.

ixISSUE PRESENTED
- CORRECTED 1. Whether the trial court properly granted HHSC’s Plea to the Jurisdiction. 1

1 Dr. Simmon s ’ purported second issue, whether HHSC failed to exhaust its administrative remedies, is not properly before the Court. See Tex. R. App . P. 38.2(a)(1)(B) . This proffered issue goes to the merits of Dr. Simmons’ requ est for relief and was not, therefore, considered or ruled on by the trial court

.

xNo. 12
- 14
- 00256
- CV IN THE COURT OF APPEALS FOR THE TWELFTH JUDICIAL DISTRICT TYLER, TEXAS TROY W. SIMMONS, D.D.S., P.C. AND TROY W. SIMMONS, D.D.S., Appellant s , v. TEXAS HEALTH AND HUM AN SERVICES COMMISSI ON , App ellee

. On A ppeal from the County Court at Law No. 2, Gregg County, Texas Cause No. 2014

- 933

- CCL2
APPELLEE’S BRIEF

TO THE HONORABLE T WELFTH COURT OF APPEALS:
T he trial court properly granted HHSC’s plea to the jurisdiction, dismiss ing for want of juri sdiction Dr. Si mmons’ suit for declaratory judgment , b ecause declaratory judgment did not lie in this case where Dr. Simmons failed to plead or
prove any waiver of sovereign immunity or ultra vires exceptions or failed to exhaust his administrative remedi es. Dr. Simmons brought suit asking the trial court to (1) issue a declaration that Dr. Simmons’ alleged liability to HHSC to be released and extinguished and (2) order HHSC to release and forward funds that HHSC applied to satisfy an overpayment of Medica id funds HHSC had paid to Dr. Simmons based on improperly submitted Medicaid claims

. See CR 7 (emphasis a dded). These funds

1were used by HHSC

- OIG to satisfy a portion of the debt that had become final after Dr. Simmons failed to appeal a final notice of ov erpayment. 2 Moreover, while styled as an action for declaratory judgment, the relief requested by Dr. Simmons reveals this case to be a petition for writ of mandamus, alleging ultra vi res conduct by HHSC. Specifically, Dr. Simmons contends that HHSC has i llegally retained Medicaid reimbursements that were subject to an administrative payment hold. The relief he requests, that the trial court declare his liability to the State has been extinguished and order HHSC to return the held funds, is actually an att empt to obtain mandamus relief against the State. STATEMENT OF FACTS The Parties Appellee HHSC is an agency of the State of Texas with responsibility to administer the Texas Medicaid program. Tex. Hum. Res. Code Ann. § 32.021(a) (West 2013)

.

2 If Dr. Simmons had correctly appealed HHSC’s final determination of overpayment, venue would have been mandatory in Travis County, Texas. Tex. Gov’t Code Ann. § 2001.176 (suits for judicial review “must be filed in a Travis County district court”). In addition to its plea, HHSC also filed a motion to transfer venue. If the Court were to r everse the granting of HHSC’s plea, HHSC will ask the trial court to grant its motion to transfer to Travis County. Simmons ought not be allowed to lie behind the log and circumvent the mandatory venue provisions to appeal HHSC

- OIG’s final determination in a venue other than Travis County.

2Appellant Dr. Simmons i s a Longview

- and Palestine

- based orthodontic and general dentistry practice that voluntarily enrolled as a Texas Medicaid p rovider to perform general dentistry and orthodontia services. See , e.g. , THSteps Dental Provider Enrollment Application, signed by Dr. Simmons’ office manager, dated Mar. 12, 2012 , at CR 72

- 83

. Between at least 2007 and 2012, Dr. Simmons was a Texas Medi caid provider . The Office of the Inspector General (“HHSC

- OIG”) investigated the billing submissions Dr. Simmons sent to HHSC for reimbursement of services he claimed he made to Medicaid patients. See Final Notice of Overpayment, dated Nov.
13 , 2013, a t CR 31

- 35

. As a result of this investigation, HHSC

- OIG determined that Dr. Simmons had made false statements and misrepresentations, in violation of HHSC Medicaid rules. See id. at CR 32

. HHSC
- OIG’s administrative enforcement actions to combat waste, fraud, a nd abuse HHSC

- OIG is the administrative enforcement arm of HHSC and is responsible for the investigation of waste, fraud, and abuse in the provision of health and human services “and the enforcement of state law relating to the provision of those services .” Tex. Gov’t Code Ann. § 531.102 (West 2013) . Specifically, HHSC

OIG is responsible for the investigation of waste, fraud, and a buse in the Texas

3Me dicaid program . Id

. 3 Additionally, chapter 32 of the Human Resources Code provides for the imposition of damages and administrative penalties against a person who presents or causes to be presented to the department a claim that “contains a
statement or re presentation the person knows or should know to be false.” Tex. Hum. Res. Code Ann. § 32.039(b)(1) . The statutory authority for the rules governing
HHSC

- OIG includes both chapters 32 and 36 of the Human Resources Code. Tex. Gov’t Code Ann. § 531.001 ; 1 Tex. Admin. Code § 371.1605 (2005).
HHSC

- OIG Rule 371.1721 provides that HHSC

- OIG may assess administrative penalties against a person who submits a claim that the person knows or should know is false, or who presents a claim that contains a statement that the person knows or sho uld know is false. 1 Tex. Admin. Code § 371.1721(a) , (b)(l) (2005). A person who commits such a violation is liable for: (1) the amount paid as a result of the violation; (2) interest; (3) an administrative penalty of not more than twice the amount paid; and (3) administrative penalties of up to $10,000 per
violation. 1 Tex. Admin . Code § 371.1723 (2005). HHSC

- OIG may apply monies withheld in a payment hold action “to satisfy any portion of an unpaid assessment

3 Medicaid is a government program providing health care to qualified impoverished people. It is jointly funded by state and federal tax dollars. 42 U.S.C. § 1396 . W hile jointly funded, Medicaid is administered by the states. Defendant HHSC has responsibility to administer the Texas Medicaid program. Tex. Hum. Res. Code § 32.021(a).

4of overpayments

. ” 1 Te x. Admin. Code § 37 1.1617(e)(1) , copy at CR 68

- 69. Failure to Appeal Final Notice of Overpayment
HHSC

- OIG conducted an investigation of Dr. Simmons ’ claims submitted to
Texas Medicaid and determined that HHSC had overpaid Dr. S immons. See Final Notice of Overpayment, dated Nov. 13, 2013, at CR 21

- 25. As a result of its investigation, HHSC

- OIG determined that HHSC had overpaid Dr. Simmons in the amount of $2,609,436.00 and that, between 2007 and 2012, Dr. Simmons had violated 1 T ex. Admin. Code § 371.1 617 (2005). See Final Notice of Overpayment , at CR 21

- 22. The overpayment amount arose out of claims Dr. Simmons submitted to HHSC “for payment under Me dicaid or other HHS programs.” CR 21. The Final Notice of Overpayment lists several violations, all of which are based on requests for prior authorization or claim s for reimbu r sement that Dr. Simmons submitted to
HHSC

. Id. When a provider receives a final notice of overpayment, the provider has fifteen days to request an appeal. Tex. Gov ’ t Code Ann. § 531.1201(a) , copy a t CR
88

- 89. 4 Dr. Simmons received the Final Notice of Overpayme nt. See Certified Mail

4 See also 1 Tex. Admin. Code § 371. 1 711(d)(2) (Recoupment of Overpayment and Debt) (“A person may request an administrative appeal hearing after receipt of a final notice of potential recoupment in accordance with § 371.1615 of this subchapter ( relating to Appeals). [HHSC

- ] OIG must receive the written request for an appeal no later than 15 days after the date the person receives final notice. ”) (emphasis added).
5Receipt, signed by C. Sampson of Willie & Associates, Nov. 15, 2013 , at CR 25

. Subsequent to his receipt of the Final Notice, Dr. Simmons had until November 30, 2013 to send HHSC

- OIG a written request for an appeal. Dr. Simmons faile d , however, to provide H HSC with a request to appeal the Final Notice, as required by
Tex

. Gov ’ t Code Ann. § 531.1201(a) and 1 Tex. Admin. Code § 37 1

. 1 7 11 (d )( 2)

. As a result of Dr. Simmons’ failure to appeal the Final Notice of Overpayment , HHSC

OIG never docketed the overpayment proceeding. 5 The recoupment sanction became a final debt on December 1, 2013. See Tex. Gov ’ t Code Ann. § 531.1201(a) ; 1 Tex. Admin. Code § 371.1617(b) (2012) , copy at CR 68

- 69

. 6 Thus, Dr. Simmons’ failure to request an overpa y ment appeal hearing within the fifteen

- day period precluded him from seeking judicial review of HHSC

- OIG’ s final decision to recoup the ove r payment and resulted in the “ creat[ion] of a final debt in favor of the State of Texas. ” See 1 Tex. Admin. Code § 371.1617(b) (201 2),
copy a t CR 68

- 69

.

5 Also pursuant to Government Code section 531.1201(a), a provider has the right to elect the venue where the appeal is to be docketed. A provider may have the appeal heard at either HHSC Appeals Division or at the State Office of Administrative Hearings (“SOAH”). Tex. Gov't Code § 531.1201(a).
6 Dr. Simmons’ brief contains a misstateme nt of fact. The overpayment matter was not, as he erroneously claims, docketed before SOAH, nor did the overpayment proceeding ever receive a docket number. See Appellant ’ s Brief at p. 1; Tex. R. App. P. 38.2(a)(1)(B) . The docket number referred to, 529134981, wa s, rather, the docket number for the payment hold proceeding, a case entirely independent and separate from the overpayment proceeding.

6Separate Payment Hold Proceeding against Dr. Simmons Prior to the ove r payment investigation and final determination, H HSC

- OIG had initiated a payment hold proceeding against Dr. Simmons. HHSC

- OIG is required by l aw to institute a payment hold if it has reason to believe the provider has engaged in fraud against the Medicaid program. 7 The payment hold contested case , docketed at SOAH in Travis County , was distinct from the overpayment proceeding. The SOAH payment h old proceeding was styled Troy Simmons, D.D.S. v. Tex. Health & Human Servs. Comm’n , SOAH Docket No. 529134981. See , e.g. , Respondent’s Mot. to Dismiss, at CR 27 (bearing docket number 529134981). The lifting of the payment hold by HHSC mooted the
conteste d case, and Order No. 10 cancelled the hearing. See Notice of Lift of Payment Hold, dated Feb. 5, 2014, a true and correct copy is attached as Appendix

7 The Texas Legislature empowered, and requires, HHSC

- OIG to combat unlawful c onduct by providers who fraudulent ly take money from Medicaid. See, e.g. , 1 Tex. Admin. Code § 371.11 (Purpose and Scope) (Inspector General “administers program integri ty and enforces program violations” and is responsible for “pursuing Medicaid . . . fraud, abuse, overpayment, and waste”). A payment hold (suspension of payments) is defined as: An administrative sanction that withholds all or any portion of payments du e a provider until the matter in dispute, including all investigation and legal proceedings , between the provider and the Commission or an operating agency or its agent(s) are resolved . This is a temporary denial of reimbursement under the Medicaid or othe r HHS program for items or services furnished by a specified provider. 1 Tex. Admin. Code § 371.1607(50) (Definitions) (emphasis added).

72 ; Order No. 10, copy at CR 116

- 19 . This lifting of the payment hold disposed of SOAH case number 529134 981. Applying Payment Hold Monies to Satisfy Final Overpayment Debt After a recoupment sanction becomes a final debt, HHSC

- OIG is authorized to apply monies from a payment hold to satisfy the amount the State overpaid a provider. 1 Tex. Admin. Co de § 371. 1617(e)(1) , copy at CR 68

- 69

. Here, a fter Dr. Simmons failed to appeal the Final Notice by the deadline of November 30, 2013, a final debt was created. See id. HHSC

- OIG then did as it was authorized to do by

s tatute: HHSC

- OIG used mone y it had withheld from Dr. Simmons in the payment hold proceeding to satisfy a portion of the final overpayment debt. 8
HHSC

- OIG then moved to enforce the collection of the overpayment against Dr. Simmons

. HHSC submitted a State A ction Request (“SAR”) to set up a repayment receivable to collect on the overpayment amount, and HHSC

- OIG then
filed the Notice of Lift of Payment Hold

. App. 2 ( noting the SAR attached as Exhibit A to the Notice). See also letter to J. Willie, counsel for Dr. Simmons , from J. Day, counsel for HHSC

- OIG, dated Mar. 4, 2014 (explaining that HHSC intended to refer

8 In order to apply the mone y from the payment hold to satisfy the overpayment balance, HHSC

- OIG filed a motion to dismiss. See Mot. to Dismiss without Prejudice, dated Dec. 16, 2013, at ¶¶ 4

– 9 and Certificate of Service, showing service upon Plaintiffs’ counsel. CR 27

- 36. This mot ion also gave Dr. Simmons further notice of the consequences of failing to timely appeal the Final Notice of Overpayment.

8to the Office of Attorney General the collection of the overpayment amount owed by Plaintiffs), copy at CR 38

- 40. On February 29, 2014 , the SOAH ALJ disposed of the payment hold case

. See Order No. 10 , copy at CR 116

- 19. Attack on Agency ’s Final Determination Subsequent to HHSC’s decision to a pply the payment hold monies to satisfy a portion of the final debt , Dr. Simons filed the Trial Court Petition on May 8, 2014.
CR 4

- 11. In response , HHSC filed a Plea to the Jurisdiction (“HHSC’s Plea”), arguing that the County Court lacked jurisdiction to hear the merits of Dr. Simmons’ suit because the doctrines of sovereign immunity and failure to exhaust admin istrative remedies precluded the County Court from considering the merits of Dr. Simmons’ Trial Court Petition. CR 12

- 40, 45

- 109. After a hearing on HHSC’s Plea , the County Court of Gregg County , the Hon. Vincent Dulweber , presiding, issued a final order, granting HHSC’s Plea and dismissing Dr. Simmons’ lawsuit. See Order, dated Aug. 25 , 201 4 , at CR 124

. Dr. Simmons subsequently filed the instant appeal of the County Court’s final order. See Notice of Appeal, at CR 130

- 31

.

9SUMMARY OF THE ARGUMENT The trial court properly granted HHSC’s Plea to the Jurisdiction because Dr. Simmons’ lawsuit is barred by the doctrine of sovereign im munity. Dr. Simmons
failed to plead a valid waiver of sovereign immunity. Moreover, h e failed to exhaust his administrative remedies when he failed to appeal the final notice of overpayment

. Where a court lacks jurisdiction, a UDJA claim, even if a valid claim, cannot independently confer jurisdiction. A court has subject

- matter jurisdiction over a matter only if a plaintiff p leads a valid waiver of sovereign immunity. Tex. Natural Res. Conservation Comm’n v.
IT

- Davy , 74 S.W.3d 849, 853 (Tex. 2002) (“Immunity from suit bars a suit against the State unless the Legislature expressly consents to the suit.”). Here, Dr. Simmons has failed to plead a valid waiver of sovereign immunity; and, the Court, the refore, lacks jurisdiction over the claim. Dr. Simmons bring s this action under the Uniform Declaratory Judgment Act (“UDJA”), Tex. Civ. Prac. & Rem. Code ch. 37 , b ut the UDJA does not waive sovereign immunity. Tex. Dep’t of Transp. v. Sefzik , 355 S.W.3d 618, 621 (Tex. 2011) (“we conclude that, under Heinrich , sovereign immunity bars UDJA actions against the state and its political subdivisions absent a legislative waiver”) (citing City of El Paso v. Heinrich , 284 S.W.3d 366, 371

- 72 (Tex. 2009) ); see also Prairie View A&M v. Chatha , 381 S.W.3d 500, 511 (Tex. 2012) (waiver must be clear and
10unambiguous). Therefore, the Court has no jurisdiction over this case based only on Dr. Simmons ’ UDJA claim. Dr. Simmons asserted t hat the trial cour t had jurisdiction on the premise that HHSC is acting unlawfully in not returning money retained in the payment hold. Thus, this claim is nothing more than an ultra vires claim against HHSC. The Texas Supreme Court, however, has repeatedly held that agenci es do not act ultra vires ; only agency officials can act ultra vires

. Tex. Dep’t of Ins. v. Reconveyance Servs.,
Inc. , 306 S.W.3d 256, 258

- 59 (Tex. 2010) (holding that court lacked jurisdiction in ultra vires claim where plaintiff only named agency and failed to name “Department officials acting in their official capaciti es”) (citing Heinrich , 284 S.W.3d 366) ). Therefore, the head of a state agency must be named in an ultra vires suit. Id. Even if Dr. Simmons had named the proper party, the Executive Commissioner of HHSC, his jurisdictional defect could still not be cured because Dr. Simmons has failed to plead a valid ultra vires claim. Here, HHSC officials acted within their sound discretion and, as allowed by HHSC Rules, applied payment hol d
monies to satisfy a portion of a final debt

. See 1 Te x. Admin. Code § 371.1617(e )(1) , copy at CR 6 8

- 69

. See also letter to J. Willie, counsel for Plaintiffs, from J. Day, counsel for HHSC

- OIG, dated Mar. 4, 2014 (explaining that HHSC intended to refer

11to the Office of Attorney General the collection of the overpayment amount owed by Plaintiffs), at CR 116

- 19. Moreover, because Dr. Simmons failed to exhaust his administrative remedies, a court lacks jurisdiction to review HHSC’s decision to create a final overpayment determination. See Frie nds of Canyon Lake, Inc. v. Guadalupe

- Blanco River Auth. , 96 S.W.3d 519, 525 (Tex. App.

— Austin 2002, pet. denied) (“It is well settled that a party must exhaust its administrative remedies before seeking judicial review of an agency decision.”). Even if Dr. Simmons had brought a viable UDJA claim, that UDJA cause of action cannot independently confer jurisdiction. The U DJA is a procedural mechanism only and provides a remedy only when a court already has jurisdiction. Jackson v. State Office of Admin. He arings , 351 S.W.3d 290, 301 (Tex. 2011)

. Because the trial court had no jurisdictio n to entertain Dr. Simmon s ’ request for relief in the first place, his request for de claratory judgment, assuming in the alternative it was a proper UDJA claim, would not provide jurisdiction.
The Court should, therefore, affirm the tr ial court’s grantin g of HHSC ’s Plea to the Jurisdiction

.

12STANDARD OF REVIEW Whether o r not a trial court has subject

- matter jurisdiction is a question of law and is subject to de novo review by the appellate court. IT

- Davy , 74 S.W.3d at 855 (rulings on jurisdictional pleas are reviewed de novo ); Mayhew v. Town of Sunnyvale , 964 S.W.2d 922, 928 (Tex. 1998) ; Tex. Ass’n of Bus. v. Tex. Air Control Bd. , 852 S.W.2d 440, 444 (Tex. 1993) ; City of Athens v. MacAvoy , 260 S.W.3d 676, 678 (Tex. App.

— Tyler 2008, no pet.)

. ARGUMENT I. The trial court properly granted HHSC’s Plea to the Jurisdiction . A. Sovereign immunity bars suit, and Dr. Simmons fails to argue waiver. A plaintiff bears the burden of alleging facts that affirmatively demonstrate the trial court’s subject

- matter jurisdiction. Tex. Air Control Bd. , 852 S. W.2d at 446 ; City of Longview v. Head , 33 S.W.3d 47, 51 (Tex. App.

— Tyler 2000, no pet.) . And when the defendant is a state entity or official, sovereign immunity generally deprives the trial court of jurisdiction. Tex. A&M Unìv. Sys. v. Ko seoglu , 233 S.W.3d 835, 844 (Tex. 2007) ; Wilson v . Tex. Workers’ Comp. Comm’ n , No. 12

- 01

- 00337

- CV, 2003 W L 22681793, at *3 (Tex. App.

— Tyler Nov. 13, 2003, no pet.) (mem.
op .)

. See also City of Tyler v. Smith , No. 12

- 08

- 00159

- CV, 2009 WL 4757576, at *4 (Tex. App.

— T yler Dec. 14, 2009, no pet.) (mem. op.) (“it has long been re cognized

13that no State can be sued in her own courts without her consent, and then only in the

m anner indicated by that consent ”) (citing Hosner v. DeYoung , 1 Tex. 764, 769 (1 847) ). A person who is aggrieved by a final agency decision cannot seek judicial review of that decision unless there is statutory authorization ; o therwise, the suit is barred by the doctrine of sovereign immunity. See Tex. Dep’t of Protective & Regulatory Servs. v. Mega Child Care , l45 S.W.3d 170, 198 (Tex. 2004) ; Bacon v. Tex. Historical Comm’n , 411 S.W.3d 161, 173 (Tex. App.

— Austin 2013, no pet.) (“state agency decisions generally cannot be challenged in court unless the Legislature has enacted a statute expressly authorizing such review”) ; see also Chatha , 381 S.W.3d at 511 (waiv er must be clear and unambiguous); Tex. Parks & Wildlife Dep’t v. Garland , 31 3 S.W.3d 920, 925 (Tex. App.

— Tyler 2010, no pet.) (same)

. Accordingly , Simmons’ suit fails for two reasons. First, no statutory authorization a llows for Simmons’ suit because Simmons failed to preserve his right to obtain judicial review of HHSC’s final decision when he failed to timely appeal
HHSC

- OI G ’s Final Notice of Overpayment by November 30, 2013. Second, Dr. Simmons’ request for relief is nothing more than an impermissible attempt to control state action.

14Lastly, the UDJA doe s not “waive the state's sovereign immunity.” Sefzik , 355 S.W.3d at 621

. 1. Improper Suit for Judicial Review Simmons asks this Court to declare that his liability to the State has b een

“ released and extinguished.” Petition at ¶ VII.I , at CR 7 . The relief Simmons requests is nothing more than a request for judicial review of HHSC’ s final determination that Simmons owed over $2 million to Texas Medicaid and HHSC’s decision to apply pay ment hold money to satisfy a portion of that final debt . A provider who is subject to a final agency decision or determination in an administrative action may appeal by filing a petition for judicial review. Tex. Gov’t Code Ann. § 2001.171

. The petition, however, ma y only be filed after the provider first exhausts his administrative remedies and must be filed in Travis County

. Id. ; Tex. Gov ’ t Code Ann. § 2001.176(b)( 1) (“ Unless otherwise provided by statute . . . the petitio n must be filed in a Travis County district court.”), c opy at CR 91

- 92

. Because Dr. Simmons had failed to timely request an appeal of the Final Notice of Overpayment , he failed to exhaust his administrative remedies and was thus precl uded from filing a petition for judicial review. See Tex. Gov't Code Ann. § 2001.171 (West 2013) (requiring party to “ exhaust all administr ative remedies available within a state agency ” before being “entitled to judicial review”) (emphasis added)

. See also Reed v. Pri nce , 194 S.W.3d 101, 107 (Tex. App.

— T exarkana 2006,
15pet. denied) (h olding that where plaintiff f ailed to exhaust administrative r emedies, compliance with statutory provisions was “ a juri sdictional prerequisite to suit”).
2. Improper Atte mpt to Control State Action Simmons’ second request, that all retained funds be “release d and immediately forwarded” to Simmons, is an effort to control state action. See Trial Court Petition at CR 7. Under the doctrine of sovereign immunity, this Court h as no jurisdiction over a suit to control state action. Absent a clear legislative waiver of immunity, HHSC is not subject to suit. 9 IT

- Davy , 74 S.W .3d at 8 53 ; Tex. Dep’ t of Transp. v. Jones , 8 S.W .3d 636, 638 (Tex. 1999) (per curiam) ; Dir. of Dep ’t of Agri c. & Env’ t v. Pri nting Indus. Ass’ n of Tex. , 600 S.W.2d 264, 265 (Tex. 1980) ; Griffin

v. Hawn , 341 S.W.2d 151, 152

- 53 (Tex. 1960)

. Here, Simmons has not pled a va lid waiver of sovereign immunity; nor does one exist. 3. HHSC’s discretionary authority to turn overpayment sanction into a final debt Although Simmons does not use the exact phrase “ ultra vires ,” he claims that HHSC has “ acted outside its statutory authori ty in continuing to withhold payment from [Dr. Simmons] after it dismissed its administrative cause of action. ” (emphasis

9 If properly pled, and the HHSC executive commissioner had been named as a defendant, he would have be en protected by official immun ity. A suit against a state official in his official capacity “actually seeks to impose liability against the governmental unit rather than on the individual specifically named and ‘is, in all respects other than the name, . . . a suit against the entity.’ ” Koseoglu , 233 S.W.3d at 844 (quoting Kentucky v. Graham , 473 U.S. 159, 166 (1985) ).

16added). Appellant Brief, at p. 3.

a. Simmons’ suit is actually a petition for writ of mandamus. Courts look to the substance of pleadi ngs to determine the nature of a suit, not what the suit is titled. See State Bar of Tex. v. Heard , 603 S.W.2d 829, 833 (Tex. 1980) (“We look to the substance of a plea for relief to determine the nature of the pleading, not merely at the form of title given to it.”). Although styled a suit for declaratory relief, this suit is actually a petition for writ of mandamus. Dr. Simmons seeks from this Court the following relief: A declaration that the Plaintiffs’ alleged liability to the Defendant has been released and extinguished and that all funds that have been retained by the Defendant as a consequence of the payment hol d be released and immediately forwarded to the Plaintiff[s]. Plaintiffs’ Petition at ¶ VII (emphasis added), at CR 7. See Reconveyance Servs. , 306 S.W.3d at 258 (noting that although “Reconveyance’s pleading did not include the
term “ ultra vires ” . . . Reconveyance’s allegations and requested declarations are, in substance ultra vires claims”). Thus, if a court were to grant Dr. Simmons’ relief

— that the balance o f the payment hold funds be re imbursed to Simmons, that court would first have to find that Dr. Janek or the Inspector General were acting either outside their statutory authority or failing to perform a ministerial act. See Heinrich, 284 S.W.3d at 372 ; cf. McAllen Hosps. v. Suehs , 426 S.W.3d 304, 316 (Tex. App.

—

17Amarillo 2014, no pet. ) (noting that district court may “issue writs of mandamus to compel public officials to perform ministerial acts”).
b . The Inspector General acted within his legal authority when he decided to apply payment hold monies to satisfy the overpayment final debt. To establish an ultra vires exception, Simmons must prove that an agency official “acted without legal authority or failed to perform a purely ministerial act.”
Heinric h , 284 S.W.3d at 372

. First, the Inspector General acted within his legal authority to apply the monies from the payment hold proceeding to satisfy part of the overpayment debt. See 1 Tex. Admin

. Code § 371.1 617(e)(1 ) (2012) (providing for HHSC

- OIG to apply monies withheld in a payment hold action toward the balance of overpayme nt that became a final debt), copy at CR 68

- 69 . Simmons fails to cite any statutory authority that contravenes the Inspector General’s authority to apply payment hold monies to satisfy a final debt

. Second, a n act is ministerial only when “the law clearly spells out the duty to be performed by the official with sufficient certainty that nothing is left to the exercise of discretion.” Anderson v. City of Seven Points , 806 S.W.2d 791, 793 (Tex. 1991)

. Here, the Inspector General, acted within his sound discretion when he decided , after the overpayment sanction became a final debt , to apply monies collected via payment hold to satisfy the final overpayment debt

.

18Moreover, a court lacks jurisdiction over ultra vi res claims when a plaintiff sues only the agency and not the agency official. Tex. Dep ’ t of In surance v. Reconveyance Servs. , 306 S.W.3d at 258

- 59 (citing Heinrich , 284 S.W.3d at 371

- 73 )

. Here, Dr. Simmons only named HHSC as defendant , an d the Court, therefore, lacks jurisdiction over this suit. 10 Lastly, because Dr. Simmons failed to avail himself of an adequate remedy by appeal

— here a timely appeal of the final notice of overpayment

— m andamus is not available to him. See Tex. Comm’n on En vtl. Quality v. Kelsoe , 286 S.W.3d 91, 94

- 95 (Tex. App.

— Austin 2009, pet. denied) (where a party “had an adequate remedy by appeal” complaints of an agency decision “were not proper subjects for

common - law mandamus relief”)

. Kelsoe is particularly ins tructive in the instant matter. Similar to Dr. Simmons, Kelsoe missed a deadline to appeal a final agency decision. See id. at 96 (missing deadline for filing petition for judicial review of

10 Assuming Dr. Simmons could bring a viable ultra v ires action, Dr. Simmons needed to have named Dr. Kyle Janek, Executive Commissioner of HHSC (“Dr. Janek”) as a defendant. Otherwise, a court lacks jurisdiction to mandamus HHSC, a state agency. Id. After adding Dr. Janek as a party, Travis County would then be the mandatory venue. See Tex. Civ. Prac. & Rem. Code § 15.014 (requiring that suit fo r mandamus action “against the head of a department of state government” be brought in Travis County). Defendant HHSC also argue d to the trial court, in its motion to transfer venue, at CR 16, in the alternative, to the extent Dr. Simmons ask s for injuncti ve relief, venue would be mandatory in Travis County

– the domicile of HHSC. See Tex. Civ. Prac. & Rem. Code § 65.023(a) (“writ of injunction against a par ty who is a resident of this state shall be tried in a district or county court in the county in which the party is domiciled”).

19denial of application). The Kelsoe court held that the trial court lacked jurisdiction over a mandamus acti on because Kelsoe missed a deadline to challenge a final agency decision. Id. at 97

- 98

. B . Simmons failed to exhaust his administrative remedies and now seeks a collateral attack on a final agency decision. An agency has exclusive jurisdiction over a dispute “when a pervasive regulat ory scheme indicates that [the L egislature] intended for the regulatory process to be the exclusive means of remedy ing the problem to which the regulation is addressed.” Subaru of Am., Inc. v. David McDavid Nissan, Inc

. , 84 S.W.3d 212, 221 (Tex. 2002)

. The Inspector General initiated the administrative enforcement case to seek recoupment in the only forum in which he has the authority: an administrative forum. The underlying administrativ e enforcement case wa s an action to recover administrative remedies for statutory (chapters 36 and 32 of the Human Resources Code) and regulatory (chapter 371 of the Administrative Code) violations. The administrative remedies that the Ins pector General so ught against Dr. Si mmons

– recoupment of overpayments and collection of administrative penalties

– are remedies only HHSC can award. See 1 Tex. Admin. Code § 371.1723 (2005) Error! Bookmark not defined.

. HHSC, acting by and through Dr. Janek, its Executive Commissioner, has the exclusive authority to make final decisions in cases brought by HHSC

- OIG

.

20Therefore, HHSC and Dr. Janek have exclusive jurisdiction over HHSC

- OIG’s administrative claims, and Dr. Simmons was required to exhaust h is administrative

rem edies before subject

- matter jurisdiction wa s conferred on a trial court

. Subaru v. McDavid , 84 S.W.3d at 221; see also Cash Am. Int'l Inc. v. Bennett , 35 S.W.3d 12, 15 (Tex. 2000) (“An agency has exclusive jurisdiction when the Legislature gives the agency alone the authority to make the initial determination in a dispute.”). In Cash, the Texas S upreme Court noted: “When the Legislature vests exclusive jurisdiction in an agency, exhaustion of administrative remedies is required.” Id. ; see also Lueck v. State , 325 S.W.3d 752, 765

- 66 (Tex. App.

— Austin 2010, pet. denied) (affirming trial court’s order granting Department’s plea where Lueck failed to exhaust administrative remedies)

. Where there is exclusive jurisdiction, “courts may review the administrative action only at the time and in the manner designated by statute.” Cash , 35 S.W.3d at
15 ; see also Twenty Wings Ltd. v. Tex. Alcoholic Beverage Comm’n, No. 2

- 05

- 355

- CV, 2006 WL 1791707, at *1 (Tex. App.

— Fort Worth June 29, 2006, no pet.) (mem. op.) (“If an administrative body has exclusive juris diction, a party must exhaust all administrative remedies before seeking judicial review of the decision.”); Tex. Gov’t Code Ann. § 2001.171 (providing that person aggrieved by agency order may only seek judicial review if he first exhausted administrative remedies).

21Exclusive jurisdiction bars a court from ruling in a proceeding where a party failed to exhaust its administrative remedies. Hill v. Bd. of Trs. of the Ret. Sys. o f
Tex. , 40 S.W.3d 676, 678 (Tex. App.

— Austin 2001, no pet.) (“It is well

- settled that a party must exhaust its administrative remedies before seeking judicial review of an agency order.”); see also Lueck , 325 S.W.3d at 765

- 66 (affirming trial court’s order granting Department’s plea where Lueck failed to exhaust administrative remedies).
Dr. Simmons failed to exhaust his administrative remedies because he failed
to timely appeal the Final Notice of Overpaymen t. His failure to appeal precluded his ability to file a suit for judicial review. See Tex. Gov't Code Ann. § 2001.171 (“A person who has exhausted all administrative remedies available within a state agency and who is aggrieved by a final decision in a contested case is entitled to judicial review . . .”) (emphasis added); see also Chatha , 381 S.W.3d at FN21 (noting that in “suits against government al entities, a timely filed petition for judicial review is a statutory prerequisite to suit, so that failure to comply deprives the trial court of jurisdiction”); Reed v. Prince , 194 S.W.3d at 107 Error! Bookmark not defined.

. See also Vickery v. Stanley , 2010 WL 4638714, at *4 (Tex. App.

— Tyler Nov. 17, 2010, no pet.) (“The UDJA cannot be invoked when it would interfere with some other entity’s exclusiv e jurisdiction.”) (citing MBM Fin. Corp. v. Woodlands

22Operating Co. , 292 S.W.3d 660, 669 (Tex. 2009) ). Therefore, a district court is barred from determining whether “Plaintiffs’ alleged liability to the Defendant has been released and extinguished.” See Trial Court Petition, at CR 7. Simmons should have brought this claim in a suit for ju dicial review, an avenue that he made impossible when he failed to timely appeal the final notice of overpayment. Related to the failure to exhaust administrative remedies, this suit is an impermissible collateral attack on a final agency decision. Here, Dr. Simmons is attempting to cure his failure to timely appeal the Final Notice of Overpayment. To the extent Plaintiffs seek a collateral attack on a f inal agency determination, the trial court also lacked jurisdiction over Simmons’ suit. Courts have re peatedly rejected attempts to use the UDJA to attack final agency orders. See, e.g. , Creedmoor

- Maha Water Supply Corp. v. Tex. Comm’n on Envtl. Quality , 307 S.W.3d 505, 526 (Tex. App.

— Austin 2010, no pet.) ; Kelsoe , 286 S.W.3d at 96

- 97 (court lacks jurisdiction to consider appeal where party failed to timely file petition for judicial review)

. See also TFJA v. Tex. Comm’n on Envtl. Quality , 36 8 S.W.3d 727, 735

- 36 (Tex. App.

— Austin 2012, pet. denied) (“failure to timely file a petition for judicial review . . . entirely deprives a trial court of jurisdiction to consider an appeal of [an agency’s] decision”); Fri ends of Canyon

23Lake , 96 S.W.3d at 524

. C . Dr. Simmons’ UDJA claim, even if valid , could not confer jurisdiction on a trial court and would result only in an advisory opinion. 1. Independent Jurisdiction Not Conferred The trial court also lack ed jurisdiction because Dr. Simmon s’ UDJA claim is not a waiver of sovereign immunity suffi cient to confer jurisdiction on the court

. The UDJA does not enlarge the existing jurisdiction of a court or create new jurisdiction.
IT

- Davy , 74 S.W.3d at 855

. Ra ther, a court must have an independent basis for jurisdiction to hear an action for declaratory relief against the State . Tex. Civ. Prac. & Rem. Code § 37.003(a) ; Wilson v. Wi lson , 378 S .W.2d 156, 160 (Tex. App.

— Tyler 1964 , no writ)

. The UDJA, ch. 37 of the Civil Practice & Remedies Code, is “merely a procedural device for deciding cases already within a court's jurisdiction rather than a legislative enlargement of a court’s power.” In re O'Quinn, 355 S.W.3d 857, 862 (Tex. App.

— Houston [1st Dist.] 2011, o rig. proceeding [mand. denied]) (quoting Tex. Air Control Bd., 852 S.W.2d at 444 ). The UDJA “cannot be invoked as an affirmative ground of recovery to revise or alter existing rights or legal re lations.” AVCO Corp. v. Interstate Sw., Ltd., 251 S.W.3d 632, 663 (Tex. App.

— Houston [14th Dist.] 2007, pet. denied) (quoting Republic Ins. Co. v. Davis, 856 S.W.2d 158, 164 (Tex. 1993) ).

24See also Tex. Civ. Prac. & Rem

. Code § 37.002(b) (“This chapter is remedial; its purpose is to settle and to afford relief from uncertainty and insecurity with respect to rights, status, and other legal relations”). Because Dr. Simmons UDJA claim is incidental to a mandamus claim or request for injunctive relief, the trial court properly granted HHSC’s plea to the jurisdiction. 11
2. Advisory Opinion
Dr. Simmons’ suit is also barred to the extent he asked the trial court to issue an advisory opinion. See Appellate Brief at p. 5 (“the trial court was requested to construe the validity and to make a declaration of the relative rights of the parties concerning Order No. 5 and Order No. 10”). Dr. Simmons ’ request that his liability be “release and extinguished” relies in his interpretation of Orders No. 5 and 10. The SOAH ALJ’s Order No. 5 in the payment hold proc eeding did nothing other than deny the Inspector General’s motion to dismiss the payment hold contested case . CR at 9

- 11. 12 Therefore, any declaration or ruling regarding the

11 This suit is also an invalid UDJA claim because if Simmons had timely filed a suit for judicial review, he would not have n eeded to file a UDJA claim. The relief he seeks is redundant of the relief he could have pursued in an appeal of HHSC

- OIG’s overpayment determination. See Tex. Air Control Bd. , 852 S.W.2d at 444 (a declaratory judgment action is merely a procedural device for deciding matters already within a court's subject matter jurisdiction). 12 Order No. 5, other than denying HHSC

- OIG’s request to dismiss the payment hold case, only otherwise purported to answer the following question: “ Did Dr. Simmons fail to timely provide OIG with a written request for an appeal? ” CR 10

- 11. The only relief that Dr. Simmons could have sought would have been an order from a Travis County district cou rt to compel the
25overpayment proceeding is tantamount to an advisory opinion, which Texas courts

ar e not allowed to issue. See Tex. Ai r Control Bd. , 852 S.W.2d at 444

. And b ecause the overpayment proceeding was not docketed at SOAH, the administrative body that issued Order Nos. 5 and 10, SOA H did not have jurisdiction o ver the overpayment proceeding. Also, t he orders did not somehow result in the complete extinguishing of Dr. Simmons’ liability in the overpayment proceeding. A declaration as to the specific orders an d pleadings in the payment hold proceeding would thus have no effect on whether HHSC

- OIG had the authority to apply the payment hold monies to satisfy the overpayment amount. See Billi ngs v. Concordia Heritage Assoc. , 960 S.W.2d 688, 693 (Tex. App.

— El Paso 1997, writ denied) (“declaratory judgmen t is

Executive Commissioner to docket the overpayment case, either at HHSC Appeals or at SOAH. If such a suit had been brought, HHSC would have argued that the SOAH ALJ in the payment hold case lacked jurisdiction in the overpayment proceeding. And even if the AJL did have jurisdiction in the overpayment case, the SOAH ALJ’s reasoning in Order No. 5 conflicted with holdings from the Third Court of Appeals. See Desi Drivin g Sch. v. Tex. Educ. Agen cy , 2014 WL 1018086, at *1 (Tex. App.

— Austin Mar. 14, 2014, no pet.) (wher e party prematurely filed suit for judicial review, district court lacked jurisdiction) (citing Marble Falls Indep. Sch. Dist. v. Scott , 275 S.W.3d 558, 566

- 67 (Tex. App.

— Austin 2008, pet. denied) ). Here, any request made prior to the issuance of the final notice of overpayment would have failed to invoke the jurisdiction of a court, including SOAH. See id. Order No. 10 only cancelled the payment hold hearing. CR 116. The order also purports to “remand” the payment hold matter to HHSC. If Dr. Simmons’ suit were ever heard on the merits, HHSC would argue th at after the Notice of Lift of Payment Hold, filed before the issuance of Order No. 10, the payment hold proceeding was disposed of in its entirety and there was nothing, therefore, to remand to HHSC. And neither Order somehow cured Dr. Simmons’ failure to exhaust his administrative remedies after he failed to appeal the Final Notice of Overpayment by November 30, 2014.

26appropriate when a real controversy exists between parties, and the entire controversy may be determined by judicial declaration”).
II. Dr. Simmons’ Purported Issue No. 2 is not properly before the Court. Dr. Simmons states as his second issue that HHSC failed to exhaust its administrative remedies. This assertion was part of Dr. Simmons’ briefing in the trial
court and goes to the merits of his argument , an argument that the trial court in granting HHSC’s Plea, did not consider

. See, e.g. , Dr. Simm ons’ Post

- Submission Brief, at CR 6 (claiming that HHSC “did not seek judicial review of [Order Nos. 5 and 10]”). The Court would have to first deny HHSC’s plea and remand for an opportunity for the trial court to consider the merits of Dr. Simmons’ claims

. Therefore, because issue number two is not properly before the Court , for all the reasons stated in section I , supra , issue two should be overruled

. 13
CONCLUSION AND PRAYER The trial court correctly ruled that it was without jurisdiction to hear Simmon s’ complaints because sovereign immunity barred him from bringing suit

13 HHSC does note that despite Dr. Simmons’ assertion, HHSC could not, nor need not, have availed itself of Tex. Gov ’ t Code Ann. § 2001.17 6 and have sought a suit for judicial review for either Order No. 5 or Order No. 10. As explained in FN 12 supra , Order No. 5 was neither final nor appealable. Order No. 5 merely denied HHSC

- OIG’s motion to dismiss the payment hold case. And Order No. 10 cancelled the payment hold hearing, precisely the action HHSC

- OIG wished the ALJ to take. And, in any event, HHSC

- OIG’s Notice of Lift of Payment Hold, filed Feb. 5, 2014 , disposed entirely of the payment hold proceeding and made moot any effect Orders No. 5 and 10 may have had on any parties.
27and because Simmons had failed to exhaust his administrative remedies. The jurisdictional defect s cannot be cured

. See Harris C nty
. v. Sykes , 136 S.W.3d 635, 639 (Tex. 2003)

. Appellee HHSC pray s the Court will affirm the trial court’ s granting of
HHSC’s Plea to the Jurisdiction. Respectfully submitted,
KEN PAXTON Attorney General of Texas
CHARLES E. ROY First Assistant Attorney General
JAMES E. DAVIS Deputy Attorney General for Civil Litigation /s/ Jennifer L. Hopgood

____________ JENNIFER L. HOPGOOD State Bar No. 21791950 (512) 936

- 1660 direct line jennif er.hopgood@texasattorneygeneral.gov RAYMOND C. WINTER Chief, Civil Medicaid Fraud Division Assistant Attorneys General P. O. Box 12548 Austin, Texas 78711

- 2548 (512) 499

- 0712 f acsimile

28C ERTIFICATE OF COMPLIANCE I certify that this Appellee ’s Brief h as 6,72 3 words

. /s/ Jennifer L. Hopgood

____________ Jennifer L. Hopgood

C ERTIFICATE OF SERVICE I certify that I have on this 1 2 th day of January 201 5 , served copies of this Appellee ’s Brief to the following:
Via e - file Joseph R. Willie Willie & Associates, P.C. 4151 Southwest Freeway, Suite 490 Houston, Texas 77027
COUNSEL FOR TROY W. SIMMONS, D.D .S., P.C. AND TROY W. SIMMONS, D.D.S.
/s/ Jennifer L. Hopgood

____________ JENNIFER L. HOPGOOD

29APPENDIX

30SOAH DOCKET NO. 529-13-4981 HHSC-OIG CASE NO.: P20121327937016421
TROY W. SIMMONS, D.D.S., P.C., § BEFORE THE STATE OFFICE Petitioner, § § vs. § § OF TEXAS HEALTH AND HUMAN § SERVICES COMMISSION, OFFICE § OF INSPECTOR GENERAL, § Respondent. § ADMINISTRATIVE HEARINGS
NOTICE OF LIFT OF PAYMENT HOLD
NOW COMES the Texas Health and Human Services Commission, Office of Inspector
General (“HHSC-OIG” or “Respondent”) and respectfully files this Notice of Lift of Payment
Hold. Respondent hereby gives notice that the hold imposed, in accordance with 1 Tex. Admin.
Code § 371.1709(a), 371.1709 (b)(3) (2012) and 42 C.F.R. § 455.23 (2011), on payments of
future claims for reimbursement submitted by Troy W. Simmons, D.D.S, P.C. (Petitioner) is

no longer in effect. Respondent would respectfully show the Court as follows:
1. On November 13, 2013, HHSC-OIG served Petitioner, by and through his counsel of record, with a Final Notice of Overpayment in accordance with the mandates of Tex. Gov’t Code §531.1201 (2013).
2. On November 15, 3013, Petitioner, by and through his counsel of record, received the
Final Notice of Overpayment.
3. Petitioner failed to make a written request for appeal of the Final Notice of Overpayment by the 15th calendar day after receipt in accordance with Tex. Govt Code § 531.1201 (2013),
which supersedes and controls any administrative rule in place prior to September 1, 2013. Tex.
Govt Code § 53 1.1201(a) (2013) specifically states:

SOAR Docket No. 529-13-4981 Page 1 of 4A provider must request an appeal not later than the 15 th day after the date the provider is notified that the commission or the commissions office of inspector general will seek to recover an overpayment or debt from the provider. On receipt of a timely written request by a provider who is the subject of a recoupment of overpayment or recoupment of debt arising out of a fraud or abuse investigation, the office of inspector general shall file a docketing request with the State Office of Administrative Hearings or the Health and Human Services Commission appeals division, as requested by the provider, for an administrative hearing regarding the proposed recoupment amount and any associated damages or penalties. (emphasis added). 4. Because Petitioner did not make a timely request for appeal of imposition of the final sanction, HHSC-OIG has not and cannot file a docketing request with regard to the overpayment. The sanction identified in the Final Notice of Overpayment became final as a matter of law on December 15, 2013 (thirty (30) calendar days after receipt of the notice of final sanction). 1 Tex.
Admin. Code. § 371.1617(a)(1) (2012).
5. According to HHSC-OIG agency rules, HHSC-OIG lifted the payment hold and applied
the held funds to the established overpayment. See Exhibit A, the 01/30/2014 SAR from HHSC
OIG to TMHP, and Exhibit B, the 02/04/2014 SAR from TMHP to HHSC-OIG confirming
termination of the payment hold and application of the funds.
6. On February 4, 2014, HHSC-OIG received confirmation from the Texas Medicaid &
Healthcare Partnership (TMHP) that the payment hold had been lifted and is no longer in effect.
See Exhibit B.
7. HHSC-OIG previously moved for a dismissal of this payment hold proceeding on the ground of mootness.
8. HHSC-OIG wishes to advise the Court that the hold previously imposed on payments of
future claims for reimbursements submitted by Petitioner, Troy W. Simmons, D.D.S, P.C., is no longer in effect.

SOAH Docket No. 529-13-498 1 Page 2 of 4Filed this 5 th day of February, 2014.

Respectfully submitted, Douglas C. Wilson Inspector General Joy Sparks Chief Counsel De ty Inspector General

James

. Day II

ssoc te Counsel

te ar No. 24029507 11101 Metric Blvd., Building I Austin, Texas 78758 (512) 491-2052 Phone (512)491-2009 Fax James.day@hhsc.state.tx.us
ATTORNEY FOR TEXAS HEALTH AND HUMAN SERVICES COMMISSION OFFICE OF INSPECTOR GENERAL

SOAH Docket No. 529-13-4981 Page 3 of 4CERTIFICATE OF SERVICE By my signature below, I certify that on this 5 th day of February, 2014, I caused to be served a true and correct copy of the foregoing document Via Facsimile upon the State Office of Administrative Hearings and upon Petitioner as follows:
Via Facsimile: (512) 322-2061 State Office of Administrative Hearings 300 West 15 th Street, Room 504 P.O. Box 13025 Austin, Texas 78711-3025
Via Facsimile: (713) 599-1659 Troy W. Simmons, D.D.S., P.C. do Joseph R. Willie, II, D.D.S., J.D. Willie & Associates, P.C. Attorneys and Counselors At law 4151 Southwest Freeway, Suite 490 Houston, Texas 77027-7307

ames

. Day II ATONEY HHOIG

SOAH Docket No. 529-13-4981 Page 4 of 4