Texas Health and Human Services Commission v. Pope
| Decision Date | 18 November 2020 |
| Docket Number | 03-19-00368-CV |
| Parties | TEXAS HEALTH AND HUMAN SERVICES COMMISSION, Appellant v. Dimitria POPE and Shannon Pickett, Appellees |
| Court | Texas Court of Appeals |
Emily Ardolino, Austin, Drew L. Harris, for Appellant.
Manuel Quinto-Pozos, Austin, for Appellees.
Before Chief Justice Rose, Justices Triana and Smith
Appellees Dimitria Pope and Shannon Pickett filed suit against appellant Texas Health and Human Services Commission (HHSC) under the Texas Whistleblower Act. HHSC filed a plea to the jurisdiction and motion for summary judgment, which the district court denied. HHSC appeals from the district court's order. We will affirm the order.
Pope and Pickett were employed by HHSC as the Director and Associate Director, respectively, of HHSC's Medical Transportation Program (MTP), which is responsible for ensuring that low-income Texans have access to non-emergency medical transportation (NEMT) for Medicaid-eligible health services. Third-party transportation-service providers, also known as Managed Transportation Organizations (MTOs), contract with HHSC to provide those transportation services in exchange for payment from HHSC.
Prior to 2014, HHSC paid MTOs using a "fee-for-service" model, in which the MTOs would submit documentation of each "ride" they provided and HHSC would pay MTOs based on the number of eligible rides. Beginning in 2014, HHSC switched to a managed-care payment model, in which MTOS are paid capitation rates. Capitation rates are prospective payments to providers, paid on a per-member, per-month basis, regardless of the number of "encounters," or rides, that MTOs provide during a particular month.
The federal government partially reimburses HHSC for its payments to MTOs based on claims submitted by HHSC to the federal government. To be eligible for reimbursement, the transportation services must comply with state and federal rules and regulations, including state law requiring that a child younger than 15 years of age be accompanied to the medical appointment by a parent, guardian, or another adult authorized by a parent or guardian, see Tex. Hum. Res. Code § 32.024(s) ; 1 Tex. Admin. Code § 380.207 (Tex. Health & Human Servs. Comm'n, Program Limitations), and that "[a]n adult authorized to accompany a child cannot be the provider of a service for which reimbursement is sought or an affiliate," 1 Tex. Admin. Code § 354.1133(c)(2) (Tex. Health & Human Servs. Comm'n, Parental Accompaniment Requirement).
The Office of Inspector General (OIG), a division of HHSC, monitors compliance with this and other legal requirements, as it is "responsible for the prevention, detection, audit, inspection, review, and investigation of fraud, waste, and abuse in the provision and delivery of all health and human services in the state." Tex. Gov't Code § 531.102(a). The MTP is subject to additional oversight by the Office of the Attorney General of the State of Texas (OAG) and the United States Department of Health and Human Services (DHHS).
Pope and Pickett became Director and Associate Director of MTP in 2012 and 2013, respectively. At the time of her firing in 2017, Pope had worked in Texas state government for approximately 40 years. Before working for HHSC, she had been employed with the Texas Adult Probation Commission, the Texas Department of Criminal Justice (TDCJ), and the Texas Youth Commission (TYC). She had worked for TDCJ for nearly 23 years and reached the position of Director of the Community Justice Assistance Division. In 2007, Pope was appointed Acting Executive Director of TYC, and in 2008, she began working as a Program Specialist for HHSC. In 2012, she was promoted to the position of Director. During her time at HHSC, Pope served under five Executive Commissioners and reported to several executives. Her performance reviews were largely positive, and she received three promotions and six pay raises over the years, including three pay raises of 20% or higher.
Pickett is a lawyer admitted to practice law in Texas and Virginia. Before working for HHSC, Pickett worked in the private legal sector and then as Deputy Parliamentarian for the Texas House of Representatives. In 2009, HHSC hired Pickett as an "Attorney IV" and assigned her to MTP. In 2013, she was promoted to Associate Director. Pope evaluated Pickett on two occasions and rated her performance "distinguished" in 2015 and "exceeds expectations" in 2017.
As Director and Associate Director, Pope and Pickett were responsible for overseeing all operations of MTP, including monitoring and administering HHSC's contracts with MTOs. After Pope became Director, she received questions and complaints regarding the apparent noncompliance with the eligibility requirements for the transportation of minors by one of the MTOs, LeFleur Transportation of Texas. In response to this information, Pope conducted area visits and "ride-alongs" to observe LeFleur and its subcontractors’ provision of transportation services. Pope's observations led her to believe that LeFleur was violating the legal requirements for transporting minors to medical appointments. In various emails, telephone calls, and in-person meetings from 2012 to 2017, Pope reported LeFleur's violations to the OIG, her HHSC supervisors, the OAG, and the FBI. Pickett, acting under Pope's direction, also was involved in making some of these reports.
In 2016, Pope and Pickett encountered another issue with LeFleur. Under the managed-care model of payment adopted by HHSC in 2014, MTOs were subject to a "cap" on how much profit they could make, and any amount of profit beyond that "cap" had to be repaid to HHSC in the form of "experience rebate" payments. See id. §§ 533.00257(b), .014; 1 Tex. Admin. Code § 353.3 (Tex. Health & Human Servs. Comm'n, Experience Rebate in the Managed Care Program). LeFleur had exceeded the cap and was defaulting on its payments. MTP calculated that LeFleur owed HHSC approximately $5.6 million, which Pope and Pickett attempted to collect. According to Pope, under pressure from LeFleur, HHSC executives blocked Pope and Pickett's efforts to collect the money and allowed LeFleur to postpone its payments.
In 2017, HHSC opted not to renew its contract with LeFleur. In response, LeFleur executives complained to HHSC's executive leadership that Pope and Pickett had treated the company unfairly. Based on these complaints, HHSC initiated an investigation into Pope and Pickett for "official oppression." The investigation included an interview of Pope by OIG. Pope notified her supervisor, State Medicaid Director Jami Snyder, of this interview in an email, telling Snyder that she had a meeting with OIG's Internal Affairs regarding LeFleur.
During the interview, which occurred in August 2017, Pope complained of HHSC's failure to collect the experience-rebate payments that LeFleur owed to HHSC. After the interview, Pope attempted to meet with HHSC's Executive Commissioner but instead met with his Chief of Staff, Chief Deputy Executive Commissioner Cecile Young, and Pope's supervisor, Snyder. At this meeting, which also occurred in August 2017, Pope informed the HHSC executives that she had reported the experience-rebate issue to OIG. She also handed them a copy of notes that she had prepared in anticipation of the meeting.
In her notes, Pope listed the "purpose" of her meeting with HHSC executives as "[t]o seek guidance and direction that [HHSC] intends to pursue with respect to the handling of LeFleur Transportation of Texas." "Specific issues of concern" identified by Pope included: "[l]imited conversations with MTP staff regarding strategies being pursued by [HHSC] regarding the MTO contract and other business arrangements that the agency has with LeFleur"; "[o]pen investigations with Office of Inspector General and/or Office of the Attorney General" regarding LeFleur; and the concerns of HHSC's leadership "regarding litigation initiated by LeFleur ... beyond LeFleur's monies owed to the state." Pope also noted that she had been contacted by OIG's Internal Affairs regarding LeFleur's claim that she had engaged in "official oppression" and that "full disclosure of documentation related to this matter may potentially disclose not so favorable actions and interactions between HHSC and LeFleur."
Also in 2017, HHSC was continuing to address a federal audit that DHHS had conducted on MTP for fiscal year 2011. The report of the audit's findings was titled, "Texas Did Not Always Comply with Federal and State Requirements for Claims Submitted for the Nonemergency Medical Transportation Program." The report found that HHSC had "claimed Federal Medicaid reimbursement for some NEMT services claims submitted by transportation providers that did not comply with certain Federal and State requirements," including the parental-accompaniment requirement. The report estimated that HHSC "improperly claimed at least $30,385,925 in Federal Medicaid reimbursement" and recommended that HHSC reimburse that amount to the federal government.1 According to Pope, approximately $13 million of that amount was attributable to transportation services that had violated the parental-accompaniment requirements.
Pope and Pickett had worked with OIG's audit-resolution team to resolve the issues that had been identified in the report and to provide documentation to DHHS showing that certain claims that had been flagged by the audit as non-compliant were in fact compliant. According to Michael Garner, OIG's Federal Audit Coordination Manager, the team was successful in resolving many of the audit issues, but as of 2017, they were still working to resolve the claims that involved the parental-accompaniment requirements. In a May 2017 email to Snyder, Pope notified her of the financial consequences of HHSC's inability to provide documentation that the transportation services had been lawfully provided:
Although staff is reviewing the availability of...
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