#### S.C. SAN ANTONIO, INC. Doing Business As Southwest General Hospital, By and Through Safeco Properties, Inc., its Successor in Interest, Appellant, v. TEXAS DEPARTMENT OF HUMAN SERVICES, Appellee.

No. 3-93-670-CV.

Court of Appeals of Texas, Austin.

Jan. 11, 1995.

Rehearing Overruled Feb. 15, 1995.

*774Tracy J. Mabry, Small, Craig & Werken-thin, Austin, for appellant.

Dan Morales, Atty. Gen. and Sharon L. Sanders, Asst. Atty. Gen., Austin, for appel-lee.

Before POWERS, ABOUSSIE and B.A. SMITH, JJ.

BEA ANN SMITH, Justice.

Appellee Texas Department of Human Services (the “Department”) formerly administered the Texas Medical Assistance Program (“Medicaid”), which includes a reimbursement program for Medicaid hospitals serving a disproportionate share of low-income patients (“Dispro I program”).1 Under the Dispro I program, Medicaid hospitals that serve the most low-income patients receive a pro rata share of an allotted fund which is disbursed annually. In 1991 Southwest General Hospital in San Antonio applied for reimbursement under this program. Based on the figures in its application, Southwest General was not selected to share in the fund. After the Dispro I fund had been fully disbursed to the selected hospitals, Southwest General discovered that it had not properly calculated its “total patient census days,” a critical number in the reimbursement formula. Had it properly calculated its total patient census days, Southwest General estimates that it would have received approximately $850,000 of Dispro I funds.

Southwest General sought a contested hearing to review the Department’s allotment of the Dispro I fund in 1991, alleging that the Department’s failure to define “total patient census days” harmed the hospital in the sum of $850,000. The Department granted the hospital an administrative hearing in April 1992, at which time the administrative law judge upheld the Department’s denial of reimbursement to Southwest General. Southwest General then sought judicial review of this decision and a declaratory judgment that the Department violated the Administrative Procedure Act by relying on a *775definition that had not been published as- a Department rule. The trial court affirmed the agency decision and declined to grant the declaratory relief. Southwest General brings this appeal, complaining of both actions.

Because we find no statutory or constitutional basis for an appeal from this agency decision, we will render judgment that the suit seeking judicial review be dismissed for lack of subject-matter jurisdiction. We will also dismiss for want of subject-matter jurisdiction Southwest General’s suit for declaratory judgment.

REIMBURSEMENT TO DISPROPORTIONATE SHARE HOSPITALS

In 1991 Southwest General was a designated Medicaid hospital, eligible to receive payment for providing services to Medicaid patients. All qualifying Medicaid hospitals are eligible to apply for additional reimbursement under the Dispro I program; the funds from this program are awarded to the twenty-five percent of hospitals that provide the most services to low-income patients. The competitive Dispro I program is administered by the Department under rules governing “Additional Reimbursement to Disproportionate Share Hospitals.” 25 Tex.Admin.Code § 29.609 (1994).2 Neither party disputes that Southwest General qualified to compete for a portion of the Dispro I fund in 1991.

The formula for determining a qualifying hospital’s disproportionate share percentage in 1991 was as follows:

*Title XVIII days*+ *Title XIX days*+ *Additional Indigent Days*x 100

Total Patient Census Days3

11 Tex.Reg. 4676 (1986) (former 40 Tex.Admin.Code § 29.609(d)(1)). After calculating this percentage, the Department arrays each hospital’s disproportionate share percentage in descending order and selects the twenty-five percent (25%) of hospitals that provide the most services to low-income patients. 25 Tex.Admin.Code § 29.609(e)(3) (1994). The Dispro I fund for that year is then allocated pro rata among the selected hospitals.4 Hospitals that fail to rank among the top twenty-five percent do not receive any reimbursement from the Dispro I fund.

Under the formula set forth above, the smaller the denominator, “total patient census days,” the higher the hospital’s disproportionate share percentage will be. Southwest General’s calculation of its total patient census days was inflated, producing a smaller disproportionate share percentage than it actually earned; this lower percentage knocked Southwest General out of the top twenty-five percent of competing hospitals.5 On July 19, 1991, the Department informed Southwest General that it would receive no dispropor*776tionate share reimbursement for 1991. At that time the Department disbursed 85% of the Dispro I fund to qualifying hospitals; however, it retained 15% of the fund for thirty days to allow hospitals dissatisfied with their ranking or them percentage to request adjustments. Having anticipated a large reimbursement, Southwest General contacted the Department repeatedly within this thirty-day period to question its failure to receive reimbursement. However, the hospital did not discover the miscalculation that led to its ineligibility until after the remaining 15% of the Dispro I fund for 1991 was finally disbursed on August 19, 1991. Complaining that but for this miscalculation it would have been entitled to $850,000 in reimbursement from the Dispro I fund, Southwest General asked the Department to “recall” sufficient funds already distributed to other hospitals to allow full reimbursement of $850,000 to Southwest General. When the Department refused because the hospital’s claim came too late, Southwest General sought an administrative hearing. The administrative law judge found that the hospital was entitled to a hearing but upheld the agency’s decision. Southwest General then sought judicial review and a declaratory judgment challenging the rules governing Dispro I; the trial court also affirmed the agency’s decision.

JURISDICTION

The Department argues that no statute confers a right of judicial review of this agency action, nor has the action adversely affected any vested property right of the hospital. Although the Department did not object to the trial court’s lack of subject-matter jurisdiction, this jurisdictional challenge may be raised for the first time on appeal. *Tullos v. Eaton Corp.,*695 S.W.2d 568 (Tex.1985). Subject-matter jurisdiction is essential to our authority to decide a case. *Texas Ass’n of Business v. Texas Air Control Bd.,*852 S.W.2d 440, 443 (Tex.1993). Southwest General responds that the Texas Human Resources Code provides for this right of appeal in section 32.034(a), which grants the Department authority to adjudicate claims in contested cases in accordance with the Administrative Procedure Act, Tex. Gov’t Code Ann. §§ 2001.001-.902 (“APA”). *See*Tex.Hum.Res.Code Ann. § 32.034(a) (West Supp.1995). Additionally, it argues that section 32.0281 provides for the right to appeal actions involving rules that relate to the determination of payment rates to Medicaid hospitals. *See id.*§ 32.0281 (West 1990). It also asserts that APA section 2001.171 confers a right of appeal in this case. *See*Tex.Gov’t Code Ann. § 2001.171 (West 1995). Finally, Southwest General contends that even without statutory authority a right of judicial review is necessarily implied because the Department violated the hospital’s constitutional rights by taking a vested property right. We must resolve this question of jurisdiction before addressing appellant’s points of error.

The doctrine of governmental immunity insulates agency action from judicial review unless a statute provides for such review, the action violates constitutional procedural due process, or the constitution waives the state’s immunity from suit. *Southwest Airlines v. Texas High-Speed Rail Auth.,*867 S.W.2d 154, 157 (Tex.App.—Austin 1993, writ denied). In *Motorola, Inc. v. Bullock,*586 S.W.2d 706 (Tex.Civ.App.—Austin 1979, no writ), we held that the predecessor of APA section 2001.171, section 19 of the Administrative Procedure and Texas Register Act, did not create a right of judicial review by generally waiving the state’s immunity from suit, but only set out the procedure for judicial review if suit is authorized pursuant to another statutory provision. *Id.*at 708. Consequently, section 2001.171 provides no basis for judicial review of Southwest General’s claim. *Southwest Airlines,*867 S.W.2d at 158.

Southwest General further relies on two sections in chapter 32 of the Texas Human Resources Code, the chapter that governs this state’s Medicaid Program, First, appellant points to section 32.034(a):

> The department has authority to adjudicate claims of contested cases in accordance with the [Administrative Procedure Act]. When the department intends to *cancel its contract or impose monetary penalties*under a contract with a person *777providing medical assistance, the department shall give reasonable notice and an opportunity for heating if one is requested. The department shall adopt rules consistent with the [APA] to implement this section, and healings under this section are contested cases under that act.

Tex.Hum.Res.Code Ann. § 32.034(a) (West Supp.1995) (emphasis added). This dispute does not involve the cancellation of Southwest General’s Medicaid contract or monetary penalties under that contract. We therefore find no basis for judicial review in section 32.034(a).

Next Southwest General cites us to section 32.0281(e) of the Human Resources Code, which governs “Rules and Notice Relating to Payment Rates” for medical assistance: “An interested party may appeal an action taken by the department under this section, and an appeal of such action shall be governed by the procedures for a contested case hearing under the [Administrative Procedure Act].... ” Tex.Hum.Res.Code Ann. § 32.0281(e) (West 1990). However, Southwest General is not an interested party in a dispute concerning payment rates for services provided under the Medicaid program. Rather, this dispute concerns “Additional Reimbursement to Disproportionate Share Hospitals,” a voluntary and competitive program that makes no provision for a contested case hearing or other appeal of disputes regarding the distribution of Dispro I funds. The administrative law judge erroneously relied on department rules governing contested hearings of payment rates to find that Southwest General was entitled to a hearing when it failed to qualify to receive Dispro I funds. We conclude that because this dispute is not about payment rates, appellant may not rely on section 32.0281(e) to bring this appeal.

Although the version of the department rule in effect at the time of this dispute simply failed to provide for any appeal of a hospital’s qualification or disqualification for Dispro I funds, that rule has been amended to specifically negate a hospital’s right to an adversary hearing.6 We note that in lieu of a contested hearing, the Department retained 15% of the Dispro I fund for a thirty-day period to allow for “adjustments” before all the annual funds were finally disbursed.7*778During this limited time period, any hospital could ask that its eligibility or the amount of its reimbursement be corrected *before*the balance of funds was distributed. This adjustment period was available to Southwest General, and the record reflects that sufficient funds were retained to reimburse the hospital in full had its calculation error been timely discovered. Reviewing the department rule and the time-sensitive nature of the reimbursement at issue, we conclude that the rule governing additional reimbursement for disproportionate share hospitals purposefully did not provide for a contested hearing with rights of appeal pursuant to the Administrative Procedure Act. Appellant cannot bootstrap such a right of appeal from other sections of the Human Resources Code governing payment rates for medical assistance. The administrative law judge erred in finding any statutory basis for granting appellant a hearing.

Southwest General maintains that it is nevertheless entitled to judicial review because the Department’s action deprived the hospital of a vested property right. *See Texas State Dep’t of Human Resources v. Silver Threads Co.,*569 S.W.2d 49, 51 (Tex.Civ. App.—Austin 1978, writ refd n.r.e.). We begin by noting that even if a right to judicial review is inherent when an administrative action adversely affects a vested property right, judicial review of the administrative *decision*is not necessarily required by due process protection. *See id.; Blair v. Texas Dep’t of Human Sens.,*837 S.W.2d 670, 671 (Tex.App.—Austin 1992, writ denied). Rather, after determining that a protected interest is involved, the reviewing court focuses on whether due process was afforded by the administrative procedures. *Blair,*837 S.W.2d at 672. However, we must first determine whether Southwest General had a vested property right entitling it to any judicial review at all.

Southwest General cites the Court to its recent decision in *Texas Department of Human Services*v. *Christian Care Centers, Inc.,*826 S.W.2d 715 (Tex.App.—Austin 1992, writ denied), in which we held that the Department could not permanently withhold payment for services that had actually been rendered to qualified Medicaid patients. *Id.*at 720. The distinction in this case is that Southwest General had already been reimbursed for the medical services directly provided to patients. By merely providing services, Southwest General did not have a vested right to additional reimbursement; rather, it had to qualify and then rank in the top twenty-five percent of competing hospitals to receive Dispro I funds in any given year. As we have noted, Dispro I funds do not constitute payment for medical services rendered; they offer “additional reimbursement” based solely on the volume of services provided to indigent patients — those qualifying for Medicaid or Medicare and others. *See*25 Tex.Admin.Code §§ 29.609(b)(1), (4), (10) (1994). In short, Southwest General had no more than an expectancy of receiving additional reimbursement; any rights it had to Dispro I funds were contingent on a comparison of Southwest General’s level of services to indigent patients with that of other hospitals. Its own failure to follow the rules in calculating the level of services it provided disqualified it from receiving additional reimbursement in 1991. We hold that the agency's action in promulgating and following the rules governing the Dispro I program did not deprive Southwest General of any vested property right.

Finding no statutory basis for judicial review and no deprivation of a vested property right, we determine that there is no subject-matter jurisdiction for Southwest General’s suit for judicial review.

Repeating one of the arguments from its suit for judicial review, Southwest General also sought a separate declaratory judgment that the Department violated the rulemaking provisions of the Administrative Procedure Act by failing to promulgate a rule defining “total inpatient census days.” Southwest General argues that this rulemaking violation caused it to lose its share of the Dispro I *779fund in 1991. The tidal court declined to grant the requested relief.8

We have previously addressed an argument and fact situation parallel to Southwest General’s in *Southwest Airlines Co. v. Texas High-Speed Rail Authority,*863 S.W.2d 123 (Tex.App.—Austin 1993, writ denied). In that case, the tidal court dismissed for want of subject-matter jurisdiction a petitioner’s suit for declaratory judgment after dismissing for the same reason the petitioner’s related cause of action for judicial review of an agency action. We affirmed the trial court’s judgment and held that an action for declaratory judgment could not be used as a vehicle to try issues piecemeal in an attempt to obtain a different judgment in a concurrent judicial proceeding involving the same controversy. *Id.*at 125-26. As the language of its request for declaratory judgment reveals, Southwest General asked for declaratory relief merely to raise again its argument that the Department’s omission rather than Southwest General’s own precluded it from sharing in the 1991 Dispro I fund. As in *Southwest Airlines,*the object of Southwest General’s suit for declaratory judgment was to control the Department’s final order by attacking the validity of agency rules; this is precisely the “attempt to obtain a different judgment in the same controversy” that we held to be an improper use of declaratory relief in *Southwest Airlines. See id.*at 126. Because we have concluded that the Department’s decision regarding disbursement of the 1991 Dispro I fund is not subject to judicial review for want of subject-matter jurisdiction, we also hold that Southwest General may not circumvent this lack of jurisdiction by cloaking part of its complaint in the mantle of a suit for declaratory judgment. Accordingly, the trial court was without subject-matter jurisdiction to grant Southwest General the declaratory relief it sought. Because the trial court was without subject-matter jurisdiction to hear Southwest General’s cause, we do not address its points of error.

CONCLUSION

Because we have determined that the trial court was without subject-matter jurisdiction to hear Southwest General’s suit for judicial review or to grant the declaratory relief it requested, we reverse the judgment of the trial court and render judgment that the cause be dismissed for want of subject-matter jurisdiction.

1

. The Texas Department of Health assumed primary responsibility for administering the Medicaid and Dispro I programs in 1993. *See*Act of Aug. 8, 1991, 72d Leg., 1st C.S., ch. 15, § 1.07, 1991 Tex.Gen. Laws 281, 296-97, *amended by*Act of May 22, 1993, 73d Leg., R.S., ch. 747, § 2, Sec. 1.07, 1993 Tex.Gen. Laws 2920, 2920-21; 18 Tex.Reg. 5978 (1993) (transferring bulk of Texas Administrative Code sections governing Medicaid and Dispro I programs from title 40 (Department of Human Services) to title 25 (Department of Health)). Because the sections pertinent to the instant dispute are now in title 25, we will cite to this title for convenience; however, we will note all substantive changes between former and current versions of the rules.

2

. Although the heading and section number remained the same, substantial changes were made to section 29.609 shortly before it was transferred from title 40 to title 25. *See*18 Tex.Reg. 5091 (1993). Again, we will note specific changes where relevant.

3

. Title XVIII of the Social Security Act governs the Medicare program. *See*42 U.S.C.A. §§ 1395-1395ccc (West 1992 & Supp.1994). Title XIX of the Social Security Act governs the Medicaid program. *See id.*§§ 1396-1396v. Thus, Title XVIII Days refers to number of Medicare patient days billed, while Title XIX Days refers to number of Medicaid patient days billed. *See*11 Tex.Reg. 4676 (1986) (former 40 Tex.Admin.Code §§ 29.609(b)(1), (2)). This formula has since been amended. *See*18 Tex.Reg. 2938 (1993) (adopted at 18 Tex.Reg. 5091 and codified at 25 Tex.Admin.Code 29.609(d)).

4

. The formula in effect for 1991 is set forth at former 40 Tex.Admin.Code § 29.609(e). 11 Tex. Reg. 4676 (1986). The current formulas are set forth at 25 Tex.Admin.Code § 29.609(f) (1994).

5

.Southwest General erroneously included "skilled nursing days” when calculating its "total patient census days” on the disproportionate share application. It likewise included skilled nursing days in reporting its total annual patient days in the Texas Department of Health's Annual Survey of Hospitals. The Department used the number supplied on the disproportionate share application as a check on the number of total patient census days it received from the Texas Department of Health based on the annual survey. Southwest General complains that the Department never published a rule instructing hospitals to exclude skilled nursing days in either report; however, the instructions on the annual survey direct hospitals to include or exclude skilled nursing days depending on the type of facility they operate.

6

. Current 25 Tex.Admin.Code § 29.609(g), effective August 16, 1993, reads:

> (g) Review of agency determination. The single state agency or its designee notifies hospitals of their eligibility or ineligibility and the estimated amount of payment before the beginning of the state fiscal year. The actual amount of payment may vary if a successful review request by one or more hospitals necessitates an adjustment in the amount of payments to the other hospitals in the program. Hospitals that do not qualify or that believe the amount of payment is incorrect may request a review by the single state agency or its desig-nee.

> (1) The hospital’s written request for a review must be made to the director of acute care services and must be received by the director within 10 calendar days after the hospital receives notification of its eligibility or ineligibility. The hospital’s request must contain specific documentation supporting its contention that factual or calculation errors were made, which, if corrected, would result in the hospital qualifying for payments or receiving payment in a corrected amount.

> (2) The review is:

> (A) limited to allegations of factual or calculation errors;

> (B) limited to a review of documentation submitted by the hospital or used by the single state agency or its designee in making its original determination; and

> *(C)not conducted as an adversary hearing.*(Emphasis added).

7

. This practice was not based on a formal rule in 1991, but there was testimony that the Department followed this 85-15 percent disbursement procedure. Although Southwest General complains that it was denied due process because the Department had not established a formal appeals procedure, it does not challenge the fact or propriety of the Department’s disbursement practice. Moreover, Southwest General’s federal due process challenge to the Department's procedure must fail because Southwest General did not have a protected interest for which process was due. As we have noted, "[Cjurrent procedural due-process analysis protects only what actually belongs to the individual, rather than recognizing that unfairness exists in the *very*act of disposing of an individual’s situation without allowing the individual to participate in some meaningful way.” *Pickell v. Brooks,*846 S.W.2d 421, 426 (Tex.App.—Austin 1992, writ denied). Because we conclude below that Southwest General did not have a vested property interest in funds from the competitive Dispro I program for 1991, no notice, process, or formal appeals procedure was due. *See Pope*v. *City of Dallas,*636 S.W.2d 244, 246 (Tex.App.—El Paso 1982, no writ). As we *778note, however, limited review procedures have now been established by rule at 25 Tex.Ad-rain.Code §§ 29.609(g), (h) (1994).

8

. Although the trial-court judgment does not expressly deny Southwest General’s claim for declaratory judgment, its judgment affirming the Department’s final decision impliedly disposes of this claim. *See North E. Indep. Sch. Dist. v. Aldridge,*400 S.W.2d 893, 897-98 (Tex.1966) (when judgmenc is not intrinsically interlocutory in character, it is presumed to dispose of all claims and parties and render judgment final for appeal purposes).