### T E X A S C O U R T O F A P P E A L S , T H I R D D I S T R I C T , A T A U S T I N

NO. 03-12-00072- CV

Chris Traylor, Com m ission er, Te xas Departm ent of Aging an d Disab ility Services; The Texas Departm ent of Aging an d Disab ility Services; Thomas Suehs, Executive Com m ission er of The Texas Health and Human Servic es Com m ission ; and T exas Health and Hu m an Services Com m ission , Appellan ts

v. Oakview Healthcare Residence, Ltd., d/b/ a Oakview Healthcare Residence, A ppellee

F ROM TH E DISTRI CT COURT O F TRAVIS CO UNTY, 419 TH JUDICI AL DISTRICT NO. D-1 -GN-1 0-0 0229 8, H ONO RAB LE O RLINDA NARANJO , JUDGE P RESIDING

M E M O R A N D U M O P I N I O N

The Texas Depa

rtment of Ag ing and Disability Servi ce s (DAD S); Chris Tray lor, Commi ssioner of DADS; the Texas Hea lth and Human Service s Commi ssion (HHSC); and Thomas Suehs, Ex ecutive Commi ssioner of HHSC (jointly the State) challeng e the district court’s judgme nt

reve rsing a final order of DADS following Oakview Hea lthcare Residence ’s administrative appea l of an administrative enfor ceme nt action. The order upheld chang es made by HHSC, t h ro u gh i t s Offic e of I nspector Gene ral, Utiliz ation Review Division (OI G), to cer tain assessments of Medica re

rec ipients made by Oakview , a long term car e fac ility , r e s u lt in g in r educe d Medica id reimburse ments
to Oakview

. The State appea ls the district court’s reve rsal of the DADS order and denial of its plea to the jurisdiction. For the r easons that f ollow, we af

firm in part a

nd reve rse a

nd dismiss in part.F ACTUAL AND R EGULATORY BACK GR OUND Oakview is a licensed nursing fac ility that provides reimbursa ble Medica id service s under a contra ct with DADS

. S ee T ex . Hea lth & Safety Code Ann. § 242.031 (West 2010); Tex. Hum. Res. Code Ann. § 161.071(6) (We s t S u p p . 2012); 40 Tex. Admin. Code §§ 46.1–.71 (De p’t of Ag ing and Disability Servs., Contracting to Provide Assisted L iving and Residential Care Servs.) (W es t 2 0 12). Oakview is require d to perf orm assessments of the clinical condition and 1 functional perf

ormanc e of Medica id r ecipients and the level of ser vices provide d to e ach. Prior to October 3, 2008, the applicable assessment sy stem was the Case Mix Classification Sy stem, which consisted of eleve n Texas I ndex for L evel o f E ff o rt (TI L E) classifica tions. See former 1 Tex. Admin. Code §§ 371.212–.214 (West 2008) (T ex as Hea lth & Hum. Servs. Comm’n, Case Mix Classification Sy s., U ti li za ti o n Re v ie w a

n d Co n tr o l A ctivities Perfor med by Texas Hea th and Human Se r v ic es Commi ssion (Commissi on), Texas I ndex for L evel of Effor t (TI L E) Assessments) repeale d 33 T ex . Reg

. 8311 (2008) (propose d J uly 4, 2008). The TI L E assessment score s deter mined the 2 amount of Medica id reimburseme nt; the g rea ter the level of eff ort require d by the nursing fac ility , the lower the score and the higher t h e reimburse ment. Oakview was require d to rec ord the
assessments on Client Ass es s ment Review and Evaluation (CARE) forms, submit them elec tronically , and maintain copie s. See id. § 371.212(7).

Ex cept whe re ma terial substantive chang es have been made, we cite the curr ent versions 1 of the re levant statutory

provisions and ag ency

rules for convenie nce. Unless otherwise stated, the repe aled rules are cited as former 1 Tex. Admin. Code 2 §§ 371.212–.214. All citations to title 1, chapte r 371 of the Tex as Ad m i nistrative Code are to repe aled or

curr ent rules issued by

the Texas Hea lth and Human Servic es Commissi on.

2HHSC, throug h OI G, periodica lly conducts on-site utiliz ation revie ws and

investiga tions of fra

ud and abuse in nursing fac iliti es that rec eive Medica id funds. Id. §§ 371.213(a) , .214(c) (1); Tex. Gov’t Code Ann. § 531.102 (West 2012). Under the repe aled TI L E rules, during 3 the on-site visits, the fac ility was require d to provide hard copies of the previously -submitted CARE forms. For

mer 1 Tex. Ad m in. Code §§ 371.212 (7)( B) , .213(b). CARE forms that could not be located w ere considere d invalid assessments. Id. § 371.212(7)( B) . The fir st tim e the f orms could
not be located, the lack of compliance was fac tored into the nursing fac ility ’s “er ror rate .” Id. The

err or rate deter

mined the fre quency of on-site visits, which could occur at intervals of betwee n seven and six teen months. Id. § 371.214(d). Subsequent failure s to locate CARE forms could result in a defa ult score of the highe st TI L E assessm e n t ( 2 1 2 ) a nd there fore a reduc ed Medica id reimburse ment. See id. § 371.212(6)( L ), (7) (B ).

On Februa

ry 22, 2008, OI G conducted a routine on-sit e visit to Oakview , at which
t i m e ce rtain CARE forms wer e not provided. On October 9, 2008, the Case Mix Classification Sy stem rules wer e repe aled and repla ced with rules adopting the Resource Utiliz ation Group Classification Sy stem (RUG). See current 1 Tex. Admin. Code §§ 371.212, .214 (West 2012) (Minimum Data Set Assessments, Res. Utiliz ation Group Classification Sy s.). The RUG r ules do
not require the use of CARE forms and do not contain a provision for assig nment of a defa ult hig h

score fo r fa i l u re to provide rec ords during on-site visits. See id. On Fe bruar y 3, 2009, OI G

See also 1 Tex. Admin. Code §§ 371.214(n) (West 2012) (Minimum Data Set 3 Assessments, Resource Utiliz ation Group Cla s sification Sy s.) (cur rent version of rule reg arding utiliz ations revie ws). The curre nt rules that re place d the re peale d rules ar e cited a s curr ent 1 Tex. Admin. Code §§ 371.212 and 371.214. 3conducte d another on-site vi sit to Oakview , at which time Oakview d i d not provide CAR E forms

for cer tain rec ipients. OI G assig ned a defa ult s co re o f 212 for eac h of those rec ipients, which resulted in re duced r eimbursement to Oakview.

P ROCEDURAL BACK GR OUND Oakview soug ht informal rec onsideration of OI G’s deter mination and provided the missing CARE forms, but no chang es wer e made to the TI L E score s. See former 1 Tex. Admin. Code § 371.214(c) (3). The Dec ision Rationale states that the CARE fo rm s we re submitt ed for

rec onsideration wi t h al l o f the require d signa tures, but “since the form is no longe r eff ective, the defa ult TI L E 212 value is upheld.” Oakview contested the finding s and subm itted a request fo r a formal appea l to HHSC. See id. § 371.214(c) (4); 1 Tex. Admin. Code §§ 357.481(a) (West 2012) (Texas Hea lth & Hum. Servs. Comm’n, Application of this Subchapter ) (hea ring s under subchapte r conducte d in acc ordanc e with Texas Administrative Procedur e Act (APA), Chapter 2001 of Texas Gover nment Code), .484 (West 2012) (Texas Hea lth & Hum. Servs. Comm’n, Request for Hea ring ). HHSC transfe rre d the case to the State Offic e of Administrative Hea ring s (SOAH) and 4
reque sted that SOAH docket the case, naming DADS as t he refer ring ag ency . See 1 Tex. Admin. Code §§ 155.53 (West 2012) (State Offic e of Admin. Hea ring s, Request to Docke t Case); 357.482 5 (West 2012) (De finitions) (def ining “re fer

ring ag ency ” as “the HHSC ag ency taking the action and that issues the noti ce o f adver se action, or the state ag ency that otherwise ref ers the matter to the

All cites to title 1, chapte r 357 of the Texas Administrative Code are to rules issued by the 4 Texas Health and H uman Service s Commi ssion. All cites to title 1, chapte r 155 of the Texas Administrative Code are to rules issued by the 5 State Offic e of A dminist rative H ear ings. 4HHSC Appea ls Division for a hear ing” ), .484(d) (Request for Hea ring ) (upon rec eipt of reque st for hear ing H HSC will transfe r ca se to SOAH). 6

DADS sent a notice of hear ing, and the case was dockete d at SOAH with DADS and Oakview as the pa rties. See Tex. Gov’t Code Ann. § 2001.051, .052 (West 2008); 1 Tex. Admin. Code § 155.401 (West 2012) (Notice of Hea ri n g); 1 Tex. Admin. Code § 357.489 (Notice of Hea ring ). The parties filed cross-motions for summary dispositi on. See 1 Tex

. Ad min. Code §§ 155.505 (West 2012) (Summary Disposition); 357.496 (West 2012) (Summary dispositi on). The
cent ra l i s s u e was whether the repe aled TI L E rules applied to the enfor ceme nt action ag ainst Oakview

. On partially stipulated fac ts, two administrative law judg es (AL J s) assig ned to the ca se issued a proposal for decision (PFD) rec ommending that DADS’s motion for summary dispositi on be denied and Oakview’s be g rante d. See Tex. Gov’t Code Ann. § 2001.062 (West 2008); 1 Tex. Admin. Code §§ 155.507 (West 2012) (Proposal for Dec ision); 357.497(a) (West 2012) (Proposals for Dec ision, Ex ceptions, and Replies). The PFD contained a conclusion of law that the leg islative intent to delete the TI L E rules was clea r and the gen er al s av i ng s provision of the Texas Code Construction Act did not opera te to prese rve the application to the TI L E rules afte r their repe al. See Tex. Gov’t Code Ann. § 331.031 (West 2005) (Saving s Provisions).

DADS filed exceptions to the PFD, and Oakview filed a response . See 1 Tex. Admin. C o d e § 3 5 7

. 4 97(b). The AL J s declined to revise the PFD. DADS subsequently issued an ord er adopting the AL J s’ fi n d i n gs and conclusions except for the conclusions conce rning the g ener al

HHSC is the umbrella age n cy o v er four other health and human service s ag encie s, 6 including D ADS. See Tex. Gov’t Code Ann. §§ 531.001(1-a )(4) , .0055 (West 2012). 5savin gs p ro v ision and the ruling s on the motions. I n the order , DADS revised the conclusions to

rea d that the g ener al saving provision opera ted to prese rve the application of the TI L E rules and that Oakview ’s m o t ion for summary dispositi on should be denied. The order then denied Oakview ’s motion, deleted the conclusion that DA DS ’s motion should be denied, and rema nded the case to SOAH “for a proposal on [DADS’s] Motion fo r S ummary Disposition or for a hear ing on the merits.” On rema

nd, the AL J s issued a revised PFD, stating that “[b] ased on [DADS’s] Orde r in this docket, the AL J s find that the TI L E values [assigned by OI G] must be applied.” DADS subsequently issued an order adopting the finding s, conclusions, and re commendations conta ined in the re vised PFD. See Tex. Gov’t Code Ann. § 2001.14 1 (W es t 2008). Oakview filed a timely motion for rehe aring

. See id. § 2001.145, .146 (West 2008). I n response , DADS delet ed one objected- to
para g raph and otherwise denied the motion for rehe aring , and the modified order beca me final. See id. §§ 2001.144 (West 2008).

Oakview appea led to the district court, naming as defe ndants DADS, its commissioner, HHSC, and its commissioner. I n its petition, Oakview soug ht reve rsal of the order , relief under the Uniform Dec lara tory J udg ments Act (UDJA), and fee s and expenses under a motion for a frivolous claim by a state ag ency . See id. § 2001.171 (West 2008); Tex. Civ. Prac. & R em . Code Ann. §§ 37.004–.011 (Wes t 2 0 0 8 ), 105.001–.004 (West 2011) (F rivolous Claim by State Ag ency ). The state defe ndants jointly filed a plea to the jurisdiction contending that HHSC was not
a prope r par

ty to an appeal of a DADS order and that the di strict court lacked jurisdiction over a ll

6of Oakview ’s claims other than reve rsal of the DADS order

. The district court denied the plea to the

jurisdiction, reve rsed the DADS order , and denied all other relief soug ht by Oakview

. This
appea l followed.

DISCUSSIO N Stand ard of Review

Gene rally , the APA provi d es fo r revie w of an ag ency decision under a substantial evidenc e standard, and a court may not substitut e its judgme nt for the ag ency ’s judgme nt on the weig ht of t he evide n ce o n a question committed to ag ency discretion. See Tex. Gov’t C ode Ann. § 2001.174 (West 2008); City of El Paso v. Pub. Util. Comm ’n , 3 44 S.W .3d 609, 618 (Tex. App.—Austin 2011, no pet.). Her e, howe ver, the challeng e to the order t urns on the construction of a statute, whi ch i s a q u es t i o n of law that we revie w de novo. See Railroad Comm’n of Tex.

v. Texas Citi

zens for a Safe Future & Clean W ater , 336 S.W .3d 619, 6 2 4 (Tex. 2011); First Am. Titl e Ins. Co. v. Combs , 258 S.W .3d 627, 631 (Tex. 2008); City of El Paso , 344 S.W .3d at 618. Of pri m ar y co ncer

n is the express statutory lang uag e. See Galbraith Eng’g Consultant s, Inc.

v. Pochuc ha , 290 S.W .3d 863, 867 (Tex. 2009). We apply the plain meaning of the text unless a dif fe re n t m ea n i ng is supplied by leg islative definition or i s appar ent from the contex t or t he plain meaning leads to a

bsurd results. Marks v. St. Luke ’s Episcopal Hosp. , 319 S.W .3d 658, 663 (Tex. 2010). Although we must g ive “ser ious consideration” to the construction of a statute b y the administrative ag ency char g ed with its enfor ceme nt, see Railroad Comm’n of Tex

. , 336 S.W .3d at 624, we do not defe r to an administrative interpre tation reg arding questions that do not lie within the
ag ency ’s expertise or that deal with a nontechnica l question of law, see Rylander v. Fisher Controls

7Int’l, Inc

. , 45 S.W .3d 291, 302 (Tex. A pp.—Austin 2001, no pet.) (quoting 2B Singer , Sutherland Statutory Construction § 49.04, at 2 3

– 2 3 (6t h ed. 2000)). Courts are as competent as age ncies in construing statutory

lang uag e. See id. The State’s plea to the jurisdiction challeng es the district court’s authority to decide this case , see Hec kman v. W illiamson Cn t

y. , 369 S.W .3d 137, 149 (Tex. 2012), and also raises a question of law that we revie w de novo, see W estbrook v. Penley , 231 S.W .3d 389, 394 (Tex. 2007). When, as here , a plea to the jurisdiction challeng es the pleading s, we must deter mine if the pleade r h a s a ll e g ed sufficie nt fac ts to aff irmatively demonstrate the trial court’s jurisdiction to hear the c a u s e . City of El Paso v. Heinrich , 284 S.W .3d 366, 378 (Tex. 2009); Texas Dep ’ t of P a r ks & W i l d l ife v. Miranda , 133 S.W .3d 217, 226 (Tex. 2004).

To make this de termination, we look to the ple ader ’s intent, construe the pleading s liberally in favor of jurisdiction, and ac ce p t the alleg ations in the pleading s as true. W estbrook , 231 S.W .3d at 405; Miranda , 133 S.W .3d at 226. When the pleading s do not alleg e sufficie nt fac ts
to aff irmatively demonstrate the trial court’s jurisdictio n b u t d o not aff irmatively demonstrate an incura ble jurisdictional defe ct, t he is sue i s one of pleading sufficie ncy , and the plaintiff should be
g iv en an o pportunity to amend. Miranda , 133 S.W .3d at 226–27. I f the pleading s aff irmatively
neg ate the exis tence of jurisdiction, then a plea to the jurisdiction may be g rante d without allowing the plaintiff an opportunity to amend. Id. at 227. I n deter mining a plea to the jurisdiction, the trial
court may consider any evidenc e the parties have su b m i t t ed and must do so when nece ssary to resolve the jurisdictional inquiry

. Bland Indep. Sch. Dist. v. Blue , 34 S.W .3d 547, 555 (Tex. 2000).

8Sovere i gn i mmunity from suit bars actions ag ainst the state absent a leg islative

waiver , deprive s a court of subject matter jurisdiction, and is there fore proper ly asser ted in a plea to the j urisdiction. Ben Bolt-Palit o B lanco C onsol. Indep. Sch. Dist. v. T exas Politi cal Subdi visions Prop./Cas. Joint Self-Ins. Fund, , 212 S

. W

. 3 d 3 20, 323–24 (Tex. 2006); Harris Cnty. v. Syke s , 136 S.W .3d 635, 638 (Tex. 2004); Miranda , 133 S.W 3d at 224. The APA provides a limit ed waiver of sovere ign immunit y from suit for appea l of an ag ency decision to district c ourt. See Tex. Gov’ t Code Ann. § 2 0 0 1.171. “F or a suit to proce ed ag ainst a g overnme ntal unit under a statute [t hat waives immunit y ], the court must first look to the terms of the Act to deter mine the scope of its waiver and then ‘consider the particula r fac ts of the case . . . to de termine whether it c omes within that scope.’ ” Texas Dep’t of Criminal Justice v. Cooke , 149 S.W .3d 700,70 4 (Tex. App.—Austin 2004, no pet.) (quoting Texas Dep’ t of Criminal Justice v. Miller , 51 S.W .3d 583, 587 (Tex. 2001)) (ellipsis in orig inal). Although the UD J A waives immunit y for decla ratory judgme nt actions challeng ing the validity of st atutes, i t is not a gene ral waiver of immunit y . S ee T ex . C i v. Prac. & Rem. Cod e An n . § 3 7.006(b) (West 2008); Texas Parks & W ildlif e Dep’ t v. Sawyer Trust , 354 S.W .3d 384, 388 (Tex. 2011)

. I t doe s not e nlarg e a trial c ourt’s jurisdiction, and a reque st f or decla ratory relief does not alter the underly ing nature of a suit. Heinrich , 284 S.W .3d at 370; IT-Davy , 74 S.W .3d at 855.

The Ge neral Savings Clause

I n its first issue, the State contends that the district court err ed in reve rsing the DADS order beca

use the g ener al saving s provision of the Texas Code Const ru cti on Act prese rved the application of the TI L E rules afte r their repe al. The g ener al common law rule is that when a statute
9is r epea led without a saving s clause limit ing the eff ect of the repe al, the repe al is g iven immediate eff ect. Quick v. City of

Austin , 7 S.W .3d 109, 128 (Tex. 1999). Her e the parties ag ree that there was

no express saving s clause in the repe aling leg islation but join issue on whether the g ener al saving s provision applies. The saving s provision, which modified the g ener al common law rule, provides:
(a) Ex cept as provided by Subsection (b), the ree nactment, revision, amendment, or repe al of a

statute does not af

fec t: (1) the pr ior opera

tion of the statute or a

ny prior ac tion taken under

it; (2) any validati on, cure , rig ht, privileg e, obliga tion, or liability previously acquir ed, ac crue d, acc orded, or incurre d under it; (3) any violation of the statute or any penalty , forf eiture, or punishment incurre d under the statute befor e its amendment or r epea l; or (4) any investiga tion, pro cee ding, or reme dy conce rning any privileg e, obliga tion, liability , penalty , forf eiture, or punishment; and the investiga tion, proce eding , or reme dy may be inst i tuted, continued, or enfor ced, and the penalty , forf

eiture, or p u n i s h ment imposed, as if the statute had not been repe aled or

amende d.

Tex. Gov’t Code Ann. § 311.031. The supreme court has held that there is a presumption that the 7
g ener al saving s provision applies “unless a contra ry leg islative intent is shown by clea r expression

or nec essar

y implication” in the repe aling leg islation. Quick , 7 S.W .3d at 130. Oakview contends that the l ang uag e of the pream bles to the proposed and adopted RUG rules that repla ced the repe aled TI L E rules are a clea r expression of intent that the g ener al saving s provision does not apply and that the repe aled TI L E rules cannot be applied in an

The Code Construction Act applies to ag ency rules as well as statutes. See Tex. Gov’t 7 Code Ann. § 311.002(4) (West 2005) (application of code c onstruction act)

. 10enfor ceme nt action af ter their repe al. The preamble to the proposed rules ex plained the proposed
repe al of the ex isting rules and ad o p t i o n o f n ew rules under the same numbers and st ated that the
ag ency was “moving from the TI L E classifica tion sy stem to the RUG classifica tion sy stem” and that the proposed repe al of the TI L E rules “dele tes exis ting require ments g overning a nursing fac ility ’s use of the TI L E ca s e m i x classification sy stem and assessments.” See 33 Tex. Reg

. 5131 (2008), adopted 33 Tex. Reg

. 8311 (2008) (codifie d at 1 Tex. Admin. Code §§ 371.2 1 2 , . 2 14). The
prea mble to the adopted rules stated that the proposed rules wer e adopted without chang es and that the new sections repla ced the old sections. See 33 Tex. R eg. 8311. The State arg ues that this lang uag e does not add any thing to the fac t that the TI L E rules wer e re p ea l ed and repla ced by the RUG rules and does n o t co n s t i t ute a clea r statement of intent that the g ener al saving s provision should not apply

. I n the absenc e of a clea r expression that the g ener al saving s provision should not apply , the State contends that, under Quick , it does apply

. We ag ree . The repe aling lang uag e does

no t expressly neg ate the application of the g ener al saving s provision, and we there fore find no leg islative intent tha t the g ener al saving s provision doe s not a pply to the repe aled TI L E rules. See Quick , 7 S

. W

. 3 d at 130 (re pealing leg islation, which contained narr ow saving s clause , did not expressly neg ate application of g ener al saving s provision, and both specific and g ener al s av i n g s clause s were neede d to effe ctuate le g islative intent).

We turn, then, to wh et h er t he g ener al saving s provision opera tes to prese rve the application of the TI L E rules in the enfor ceme nt action ag ainst Oakview

. The State arg u es t h at subsections (a )( 2 ) and (a) (4) of the saving s provision save the enfor ceme nt under the TI L E rules. Subsection (a) (2) provides that the repeal of a st atute does not aff ect rights ac crue d or obl igations

11incurre d prior to the repe al. Tex. Gov’t Code Ann. § 3 11.031(a) (2). The State contends that

Oakview incurre d the obliga tion to maintain the CARE forms under the TI L E rules pri or to their

re peal and there fore had to provide the forms i n the on-sit e vis it conducte d afte r t heir repea l. S ee former 1 Tex. Admin. Code §§ 371.212(7), .213(b). The State further contends that OI G acquir ed the rig ht to revie w the TI L E assessments at the time they wer e conducte d and elec tronic forms filed, which was prior to the repe al. These obliga tions a nd rig hts, the State arg ues, there fore survive the
repe al of the TI L E rules.

Howeve r, Oakview ’s obliga tion was to “maintai n ” t h e rec ords and provide documentation to revie wer s as nece ssary to conduct revie ws under TI L E. See former 1 Tex. Admin. Code § 371.213(b). On-site revie ws under TILE cea sed upon repe al of the TI L E rules. See curr ent 1 Tex. Admin. Code 371.214(n) (outlini ng proce d u re s for utiliz ations revie ws under RUG rules). Thus, althoug h Oakview did have an obliga tion to “maintain” the CARE forms under the old rules,

see former

1 Tex. Admin. Code § 371.212(7), there was no curr ent obliga tion to maintain them at the time of the revie w beca use that rule had been repe aled and repla ced, see 33 Tex. Reg

. 8311. Nor 8 did the State acc rue a rig ht of revie w and assessment prior to the repe al of the TI L E rules; the State’s rig ht under the TI L E rules wa s to view the CARE forms at the t ime of t he on-site visit, which did
not occur until afte r the repe al and repla ceme nt of the rules g overning on-site visits. There fore , we do not defe r t o the S tate’s construction of subs ection (a)(2) here , see Ry lander , 45 S.W .3d at 302,

I n addition, we observe that there is no provision in the RUG rules for a defa ult high score 8 fo r fa i l ure to produce the require d forms during on-site visits. See curr ent 1 Tex. Admin. Code §§ 371.212, .214. 12and conclude that subsection (a)(2) of the s aving s provision does not save the enfor ceme nt action

under the TI L E rules.

The State also contends that subsection (a) (4) prese rves the TI L E rul es here

. S u b s ec t i on (a) (4) provides that investiga tions and proce eding s are not aff ecte d by the repe al o f a
statute. Tex. Gov’t Code Ann. § 311.031(a) (4). The State char acte rizes the visit to Oakview by OI G on Fe bruar

y 3, 2009, as a “ follow-up” visit and part of a n ong oing inve stiga tion that was beg un at the time of the visit conducte d on Fe bruar y 22, 2008, befor e the repe al of the TI L E rules. Howeve r, there is no evidenc e in the rec ord that HHSC or OI G opened any “investig ation” or that the on-site visit on Fe bruar

y 3, 2009, was pa

rt of any “proc eeding .” Rather , the visits appear from the r ecor d
to have been conducte d in acc ordanc e with the provisions of both the TI L E and RUG rules reg arding fre quency of revie ws. See former 1 Tex. Admin. Code § 371.214(d)( 1) (fr equenc y of revie ws deter mine d by err or rate hi story ); curr ent 1 Tex. Admin. Code § 371.214(n)( 1) (same). The S tate
arg ues that the ref

ere nce to Oakview ’s failure to provide the forms at the first visit contained in the Reconsider ation Review Repor t following the second visit indicates the two visits were somehow

connec ted. We disag ree . The ref ere nce to the prior violation was require d under the TI L E rules to justify the imposit ion of the defa ult score of 212, which could be applied only on subsequent violations. See former 1 Tex. Admin. Code § 371.212(7)( B)

. We there fore conclude that subsection (a) (4) of the saving s provision does not s av e t h e enforceme nt action under the TI L E rules. See Rylander , 45 S.W .3d at 302. We overr ule the State’s f

irst issue.

13DADS’s Authority t o Issue Final Order I n its second issue, the State arg ues that DADS was within its authority to issue the final order following the contested case hear ing. I n addition to seeking reve rsal of the DADS order , Oakview soug ht decla

rations under the UDJA that DADS exceeded its authority in interpre ting HHSC rules, modify ing the AL J s’ PFD, and issuing the final decision in the matter. See Tex. Civ. Prac. & Rem. Code Ann. §§ 37.004. Howeve r, i n its judgme nt, the district court de nied the re lief Oakview soug ht under the UDJA, and Oakview does not appea l that ruling

. There fore , we need not 9

rea ch this issue. See Tex. R. C iv. P. 47.1.

Sub stantial Evid ence

I n its third issue, the State con t en ds that there was substantial evidenc e to support DADS’s fin al o rd er adopting the revised PFD’s finding that Oakview did not provide the CARE forms during the on-site visit of Fe bruar y 3, 2009, and upholding the resulting defa ult TI L E score s assig ned by OI G. The APA authorizes a revie wi n g co u rt to test an ag ency ’s finding s and conclusions t o deter

mine if they are rea sonably supported by substantial evidence considering the reliable and probative evidenc e in the rec ord as a whole. Tex. Gov’t Code Ann. § 2001.174; see City of El Paso , 344 S.W .3d at 618. Her e, howeve r, Oakview did not challeng e the finding s of fac t under the s ubstantial evidenc e st andar d befor e S OAH or the di strict court a nd does not do so on appea l. There is no dispute that Oakview did not provide the CARE f orms on Fe bruar

y 3, 2009. The only issue below and on appea l reg arding the appropr iateness of the order is whether the g ener al saving s

We do not c onstrue the judgme nt a s ambig uous, as the State contends it is, and conclude 9 that on its face , it rever sed the DA DS order a nd denied a ll other relief

soug ht. 14provision opera ted to prese rve the application of the TI L E rules in the enfor ceme nt action. Such

construction of a statute is a question of law, which we revie w do n o v o . S ee Railroad Comm’n , 336 S.W .3d at 624; First Am. Titl e Ins. Co. , 258 S.W .3d at 631; City of El Paso , 344 S.W .3d at 618 (apply ing de novo standard of revie w to construction of statute in appea l under APA o f u t i l i t y commission’s order ). Fur ther, thi s arg ument presumes the application of the TI L E rules, an issue we have already decide d in favor of Oakview. Consequently , we need not rea ch t h i s i s s u e. See 1 0 Tex. R. C iv. P. 47.1.

Issue Four HHSC as a party The State raises sever al arg uments in its fourth issue. First, it arg ues that HHSC and Suehs are protec ted by sovere ign immunit y and are not proper parties to this action, matters raised in the State’s plea to the ju ri s d i ct i o n , which the district court denied. Oakview points to the following as reasons that HHSC and Suehs ar e prope r par ties: (1) HHSC promulg ated the rules at issue, see Tex. Hum. Res. Code Ann. § 161.073 (West Supp. 2012); (2) Oakview’ s appea l was to the HHSC Appea ls Division, see 1 Tex. Admin. Code Ann. § 357.484(b); (3) the case was g iven an HHSC cause number, and the number was reta ined but chang ed to ref lect it was a DADS cause number; (4) HHSC is responsi ble for revie w and investiga tion of nursing homes that rec eive Medica id funds and conducte d the on-site visits to Oakview throug h its OI G, see Tex. Gov’t Code Ann. § 531.102; former 1 Tex. Admin. Code § § 3 7 1

. 2 1 3 (a) , .214(c) ; and (5) the prea mble to the

The State notes that it brief ed this issue out of “an a

bundance of ca

ution.” 1 0 15proposed rules stated that it is HHS C t h at recovers incorre ct Medica id pay ments and reimburse s underpa y ment to the nursing fac ility , see 33 Tex. Reg. 5131. We do not find these rea sons persua sive. I t is true that HHSC and DADS are rela ted
ag encie s and that HH S C promulg ated the rules that g overne d the enfor ceme nt proce eding and participa ted in it. See Tex. Gov’t Code Ann. §§ 531.001(1-a )(4) , .0055(e) (West 2012); Tex. Hum. Res. Code Ann. § 161.073; former 1 Tex. Admin. Code §§ 371.213(a) , .214(c)

. Howeve r, it is also
appar ent that DADS was the only ag ency that was a party to the SOAH proc ee d i n g and was the
ag ency that issued the final order at i ssue here. As a st ate e ntity , HHSC is protected by sovere ign immunit y unless it is expressly waived by statute. See Ben Bolt-Palito Blanco Consol. Indep. Sch. Dist , 212 S.W .3d at 323–24; Syke s , 136 S.W .3d at 638. “[C] ourts are require d to narr owly construe statutory waiver s of sovereig n immunit y .” TJFA, L .P. v. T exas Comm’n on Envtl. Quali t y & BFI W aste Sys. of N. Am. , 368 S.W .3d 727, 737 (Tex. App.—Austin 2012, pet. denied) (citing Mission Consol. Indep. Sch. Dist. v. Garcia , 253 S.W .3d 653, 655 (Tex. 2008)). I t is settled that for a statute to waive immunity , it must contain a clea r and unambig uous expression of t he legislature ’s i ntent
to do so. W

ichita Falls State Hosp. v. T aylor , 1 0 6 S

. W.3d 692, 696 (Tex. 2003). When a st atute does not contain “‘ma g ic words,’ such as t h e S t at e’s ‘sover eig n immunit y to suit and liability is waived[,]’” the s upreme cour t h as em p l o y ed certain “aids to help guide our analy sis.” Id. at 697. One g uideline is tha

t, a lthough the statute need not be a “model of ‘per fec t c larity ,’” it must waive immunit y “bey ond dou b t

. ” Id. For example, if the provision in question would be meaning less unless immunit y wer e waived, a cour t may find waive r. See id. Another is tha t “ when construing

16a statute that purportedly waives sovere ign immunit y , we g ener ally resolve ambig uities by reta ining

immunit y .” Id.

1 1 The APA provides a limit ed waiver of sovere ign i m m u n i ty from sui t by providing for appea l of an ag ency decision to district court. See Tex. Gov’t Code Ann. § 2001.171. The APA contemplates judicial re v i ew of an “ag ency decision” and ref ers to “ag ency action,” “ag ency discretion,” and service of the petition on “a st at e ag ency ” or “the state ag ency .” See id. §§ 2001.172.–176 (West 2008). Although t h e s t atute does not expressly state that “immunity is

wa i v ed ,” the rig ht of judicial revie w and the provisions for service on “a state ag ency ” wo u l d b e meaning less if immunit y

wer e not waived as to the ag ency whose de cision is being a ppeale d. See W ichita Falls Stat e Hosp. , 106 S.W .3d at 697. Howe ver, the re is nothing in the plain lang uag e of the APA that expressly extends that waiver of immunit y bey ond the ag ency whose order is at issue
to rela ted ag encie s, and we need not rea d in such an extension in order to g ive the statute meaning

. See Pochuc ha , 290 S.W .3d at 867; W ichita Falls State Hosp. , 106 S.W .3d at 697

. Although the

re ference s to “the” or “a” state ag ency and its “dec ision,” “ac tion,” or “discre tion” could be construed as ambig uous in light of HHSC’s oversig ht of DADS, its coordination with DADS on enfor ceme nt, and its role in issuing rules for the opera tion of DADS, we must resolve that ambig uity in favor of

immunit y . See W

ichita Falls Stat e Hosp. , 106 S.W .3d at 697. 1 2

Other g uidelines cited by the supreme court in W ichita Falls State Hospital v. Taylor , 106 1 1 S.W .3d 692, 698 (Tex. 2003), do not apply to the fac ts before us. The UDJA also provides a limit ed waiver of immunit y for claims challeng ing the validity 1 2 of a statute. See Tex. Civ. Prac. & Rem. Code Ann. § 37.006(b) (West 2008). I n addition, the APA provides that “the state ag ency ” must be made a party to a decla ratory judgme nt action challeng ing the validity or applicability of a rule. See Tex. Gov’t Code § 2001.038(a) (c) (West 2008). Howeve r, even assuming Oakview ’s claims can be construed as a challeng e to the validity or applicability of 17As fo r t h e immunit y of Suehs, we observe that public employ ees g ener ally are

protec ted by officia l immunit y from suits arising out of the perf o rm an ce of their discretionar y duties perf

ormed in g ood faith and within the scope of their authority

. S ee F r a n ka v. Velasquez , 332 S.W .2d 367, 383 (Tex. 2011). “I t is fundame ntal that a suit ag ainst a state officia l is mere ly ‘a n o t h er way of pleading an action ag ainst the entity of which [t he officia l] is an ag ent. ’” Texas A& M Univ. Sys. v. Koseoglu , 233 S.W .3d 835, 844 (Tex. 2007) (citing Kentucky v. Graham , 473 U.S. 159, 165, (1985) (quoting Monell v. New Y ork City Dep’ t of Soc. Servs. , 436 U.S. 658, 690 n.55 (1978)) ) (bra ckets in orig inal). One exception is an ultra vires claim, an action alleg ing that the

o ff i cial acte d without leg al authority or failed to perf orm a purely minist eria l act. See Franka , 332 S.W .3d at 382; Heinrich , 284 S.W .3d at 372. Her e, Oakview has not alleg ed an ultra vires claim
ag ainst Suehs. Consequently , Oakv i ew ’s claims ag ainst Suehs are claims ag ainst HHSC and are l i k ew ise barr ed by sovere ign immunit y . See Koseoglu , 233 S.W .3d at 844; W ichita Fall

s S t a t e Hosp. , 106 S.W .3d at 697. We there fore conclude that the district lacke d subject matter jurisdiction

over Oakview ’s claims ag ainst HHSC and Suehs and sustain the State’s fourth issue as to HHSC’s and Suehs’s immunity

from suit.

Alternat e bases f or judgm ent Observing that the district court did not state the rea sons for its ruling , the State also challeng es sever al arg

uments made by Oakview “to the extent the trial court’s decision in this case may have been based on” those claims. First, it contends that the district court erre d to the ex tent

the TI L E rules, Oakview ’s claims for decla ratory relief wer e direc ted at DADS, not HHSC, and these provisions can not wa ive immunity for HH SC on t he re cord be fore us.

18it reve rsed the DADS order based on an unexpressed finding that in modify ing the AL J s’ first PFD,

DADS violated section 2001.058(e) of the APA, which outlines when an ag ency may ch an ge an AL J ’s finding of fac t or conclusion of law. See Tex. Gov’t Code Ann. § 2001.058(e) (West 2008). Oakview ’s claim that DADS wrong ly modifie d t h e fi rs t PFD was asser ted in its reque st for decla ratory relief

, which the trial court denied and which Oakview does not appea l. W e n ee d not addre ss this i ssue ag ain. See Tex. R. C iv. P. 47.1. 1 3 The State also arg ues that DADS’s final order and its letter deny ing Oakview ’s motion for rehe aring cannot provide a basis for the district court’s reve rsal of the DADS order and
t h at t h e district court err ed to the extent it relied on either in its decision to reve rse the order

. Howeve r, it is clea

r from the rec ord that DADS’s first order modify ing the first PFD and rema nding the case to SOAH and its letter deny ing rehe aring wer e not final and appea lable order s of the ag ency ,

wer e not what Oakview appea led, and wer e n o t wh at the district court considere d. We need not

rea ch these arg uments. See id.

Finally , the State challeng es the district court’s authority to reve rse the DADS order under t he UDJA and chapte r 105 of the civil prac tices and reme dies code. See Tex. Civ. Prac. & Rem. Code Ann. § § 3 7.004–.011, 105.001–.004. Be cause the district court denied the relief Oakview soug ht under the UDJA and chapte r 105, it is clea r from the rec ord that the district court 1 4 did not base its re versa l of the order on these claims. Fur ther, Oakview does not a

ppeal the de nial of its UDJ A and c hapter

105 claims. We need not re ach this point. See id. There fore , we sustain

See supra note 7. 1 3 See supra note 7. 1 4 19the State’s fourth is s u e as to HHSC’s and Suehs’s sovere ign immunit y without rea ching the

rema inder of the State’s ar g uments on this is sue.

CONCLUSION Having conclude d that the district court lacks jurisdiction to hear Oakview ’s claims
ag ainst HHSC and Suehs, we reve rse the district court’s denial of the State’s plea to the jurisdiction

as to the sovere ign immunit y of HHSC and Suehs and dismiss the action as to t h em fo r l ac k of subject matter jur isdiction. W e af firm the district cour

t’s judgme nt in all other respe cts.

__________________________________________ Melissa Goodwin, Jus tice

Be fore Chief J ustice Jones, J ustices Goodwin and F ield Affir med in part; Rever sed and D ismiss ed in par t Filed: Mar ch 8, 2013

20