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declining to reach issue "because the trial court has not in the first instance" considered that issue
Summary of this case from Lee v. Grand Prairie Indep. Sch. Dist.Opinion
NO. 03-17-00081-CV
02-03-2022
PHI AIR MEDICAL, LLC, Appellant v. TEXAS MUTUAL INSURANCE COMPANY, Hartford Underwriters Insurance Company, TASB Risk Management Fund, Transportation Insurance Company, Truck Insurance Exchange, Twin City Fire Insurance Company, Valley Forge Insurance Company, Zenith Insurance Company, and Texas Department of Insurance, Division of Workers Compensation, Appellees
Shelby Leigh O'Brien, Craig T. Enoch, Austin, Amy L. Prueger, for Appellant. James M. Loughlin, Austin, for Appellees Truck Insurance Exchange, Transportation Insurance Company, Zenith Insurance Company, Valley Forge Insurance Company, Twin City Fire Insurance Company, TASB Risk Management Fund. Lisa A. Bennett, for Appellee Texas Department of Insurance, Division of Workers’ Compensation. P. M. Schenkkan, Mary Barrow Nichols, Austin, Matthew Baumgartner, Bryan W. Jones, for Appellee Texas Mutual Insurance Company.
Shelby Leigh O'Brien, Craig T. Enoch, Austin, Amy L. Prueger, for Appellant.
James M. Loughlin, Austin, for Appellees Truck Insurance Exchange, Transportation Insurance Company, Zenith Insurance Company, Valley Forge Insurance Company, Twin City Fire Insurance Company, TASB Risk Management Fund.
Lisa A. Bennett, for Appellee Texas Department of Insurance, Division of Workers’ Compensation.
P. M. Schenkkan, Mary Barrow Nichols, Austin, Matthew Baumgartner, Bryan W. Jones, for Appellee Texas Mutual Insurance Company.
Before Justices Goodwin, Baker, and Kelly
OPINION
Thomas J. Baker, Justice
This case—before us again, this time on remand from the Texas Supreme Court—involves judicial review of decisions by the Texas Department of Insurance, Division of Workers Compensation (the Division), about the amount of reimbursement from insurers to which PHI Air Medical, LLC, is entitled for providing air-ambulance services to injured workers who are covered under the Texas Workers’ Compensation Act (the TWCA or Act). See generally Tex. Lab. Code §§ 401.001 – 419.007. The Texas Supreme Court reversed our holding that certain provisions of the Act and the Division's regulations prescribing reimbursement amounts are preempted by the federal Airline Deregulation Act (ADA), see 49 U.S.C. § 41713, and remanded the cause to us to consider the issues we did not previously address, see PHI Air Medical, LLC v. Texas Mutual Insurance Company , 549 S.W.3d 804, 816 (Tex. App.—Austin 2018), rev'd , 610 S.W.3d 839, 843 (Tex. 2020). For the following reasons, we will affirm the portion of the trial court's judgment determining that the ADA does not preempt any of the challenged TWCA provisions but reverse its remaining judgment and remand this cause to the trial court for further proceedings.
Appellee insurers are Texas Mutual Insurance Company, Hartford Underwriters Insurance Company, TASB Risk Management Fund, Transportation Insurance Company, Truck Insurance Exchange, Twin City Fire Insurance Company, Valley Forge Insurance Company, and Zenith Insurance Company (collectively, Insurers). The Division is also an appellee.
REGULATORY FRAMEWORK
PHI provides emergency air-ambulance services and is licensed as an air carrier by the Federal Aviation Administration and as an air taxi by the United States Department of Transportation, subjecting it to federal oversight. See, e.g. , 49 U.S.C. § 41712(a) (prohibiting air carriers from engaging in unfair, deceptive, or anti-competitive practices). As a provider of emergency medical services (EMS), PHI is also subject to state regulation. See, e.g. , 25 Tex. Admin. Code § 157.36(b) (2021) (Dep't of State Health Servs., Criteria for Denial and Disciplinary Actions for EMS Personnel and Applicants and Voluntary Surrender of a Certificate or License) (providing reasons for which EMS certification may be suspended or revoked, including for failure to respond to calls while on duty or for discriminating against patients, including based on their ability to pay). Furthermore, when PHI transports an injured worker in Texas who is covered by workers’ compensation insurance, the TWCA governs its payment for the services. See generally Tex. Lab. Code §§ 401.001 – 419.007.
In enacting the TWCA, in 1913, the legislature attempted to balance two competing interests: providing compensation for injured employees and protecting employers from the costs of litigation. Texas Mut. Ins. , 610 S.W.3d at 843 (citing SeaBright Ins. v. Lopez , 465 S.W.3d 637, 642 (Tex. 2015) ). A balance was struck by permitting workers to "recover from subscribing employers without regard to the workers’ own negligence" while "limiting the employers’ exposure to uncertain, possibly high damages awards permitted under the common law." Id. In 1989, the legislature "revamped" the TWCA, creating what is now the Division to implement and enforce the Act's provisions. Id. The Act is the exclusive remedy for an employee's non-intentional, "work-related injuries" and exempts the employer, its agents, and its employees from common-law liability claims based on negligence or gross negligence. See Tex. Lab. Code § 408.001 ; Reed Tool Co. v. Copelin , 689 S.W.2d 404, 406 (Tex. 1985).
Among other provisions, the Act provides PHI—as a healthcare provider that treats injured, covered workers—with a direct statutory claim for reimbursement for its services from a workers’ compensation insurer. See Tex. Lab. Code § 408.027(a). Under the Act, providers may contract with insurers to determine the amount of reimbursement, see id. § 413.011(d-4), but when (as here) there is no contract between the provider and insurer, the Act strictly regulates the amount that insurers must pay healthcare providers for treating workers injured on the job, delegating the promulgation of "fee guidelines" to the Division, see id. § 413.011; 28 Tex. Admin. Code §§ 134.1 (2021) (Tex. Dep't of Ins., Med. Reimbursement), .203 (2021) (Tex. Dep't of Ins., Med. Fee Guidelines for Pro. Servs.). When the Division has not adopted an applicable guideline for a particular service, the insurer must reimburse the provider a "fair and reasonable" amount. See Tex. Lab. Code § 413.011(d) ; 28 Tex. Admin. Code § 134.1(a), (e)–(f). If the insurer does not reimburse the full amount of the provider's billed charges, the provider generally may not "balance bill" its customer—the covered worker—for the unpaid portion. See Tex. Lab. Code § 413.042 ("A health care provider may not pursue a private claim against a workers’ compensation claimant for all or part of the cost of a health care service provided to the claimant by the provider unless ... the injury is finally adjudicated not compensable under this subtitle[.]"). A provider dissatisfied with the amount an insurer pays may seek review by the Division. See id. § 413.031(a) (specifying procedures for resolution of medical-fee disputes between providers and insurers). In turn, a party who disagrees with the Division's ruling is entitled to a contested-case hearing conducted by the State Office of Administrative Hearings (SOAH) and, ultimately, judicial review. Id. § 413.031(k), (k-1). PROCEDURAL BACKGROUND
We refer to TWCA Section 413.011 and the Division's Rules 134.1 and 134.201 collectively as the Act's "reimbursement provisions."
We refer to TWCA Section 413.042 as the "balance-billing prohibition."
This lawsuit arises from PHI's provision of transport to thirty-three covered workers between 2010 and 2012 but represents only "a fraction of the air ambulance fee disputes pending agency review." See Texas Mut. Ins. , 610 S.W.3d at 844. A dispute arose between PHI and Insurers beginning in 2012 when PHI and other air-ambulance providers began filing fee disputes (commonly called requests for medical-fee dispute resolution (MFDR)) with the Division, seeking to recover the full amount of their billed charges rather than the lower reimbursement rate of 125% of the Medicare rate for air-ambulance services that Insurers had been paying, purportedly following the Division's fee guidelines. Before the Division, PHI argued that the ADA preempted the TWCA's reimbursement provisions, the effect of which, it argued, was to require Insurers to pay PHI its billed charges in full. See Morales v. Trans World Airlines, Inc. , 504 U.S. 374, 386–88, 112 S.Ct. 2031, 119 L.Ed.2d 157 (1992) (holding that ADA preempts state laws and regulations "relating to rates" of any air carrier); see also 49 U.S.C. § 41713 ("Preemption of authority over prices, routes, and service"). The Division dismissed the thirty-three fee disputes, citing its lack of jurisdiction because of ADA preemption.
Insurers requested a contested-case hearing at SOAH for review of the Division's determination. See Tex. Lab. Code § 413.0312(e). The SOAH administrative law judge (ALJ) determined that the ADA does not preempt the reimbursement provisions because the McCarran-Ferguson Act (MFA) reverse-preempts the ADA by "explicitly reserv[ing] the regulation of insurance to the states and provid[ing] that any federal law that infringes upon that regulation is preempted by the state insurance laws, unless the federal law specifically relates to the business of insurance." See 15 U.S.C. § 1012(b) ("No Act of Congress shall be construed to invalidate, impair, or supersede any law enacted by any State for the purpose of regulating the business of insurance ... unless such Act specifically relates to the business of insurance."). SOAH remanded the dispute to the Division for a determination on the merits.
Following remand, the Division rejected PHI's renewed argument about ADA preemption, agreed with the ALJ's reverse-preemption determination, and considered the disputes on their merits. The Division issued decisions in each of the thirty-three disputes determining that the "fair and reasonable" standard applied—rather than the lower 125%-of-Medicare standard for which Insurers advocated—and that PHI's full billed charges were, on the basis of the factual record, fair and reasonable, and Insurers were thus required to pay the charges in full. See 28 Tex. Admin. Code § 134.1(f) (outlining "fair and reasonable" standard).
Insurers requested another contested-case hearing at SOAH, and the ALJ consolidated the thirty-three cases for an evidentiary hearing and de novo review. In his final decision and order, the ALJ noted that "a threshold legal issue exists—namely, whether the TWCA is preempted by the ADA." The ALJ "decline[d] to reverse his prior ruling" and "continue[d] to find that the [MFA] applies to this case and results in the TWCA preempting the application of the ADA." Notably, the ALJ rejected PHI's "framing" of the preemption issue—in which PHI attempted to challenge merely the TWCA's reimbursement provisions and not the entirety of the Act—because of his conclusion that the "reimbursement provisions are a non-severable part of a broad regulatory scheme that affects both the price and service of an air carrier." The ALJ declined to grant PHI's requested relief that, absent a preemption determination, the ALJ "issue a ruling that PHI could balance bill the workers’ compensation claimants who received the services" because such issue "goes beyond the scope of the ALJ's authority" and is "more properly within the jurisdiction of the judiciary." In his final decision and order, the ALJ concluded that the fair-and-reasonable standard applied and that, thereunder, PHI was entitled to reimbursement in the amount of 149% of the Medicare standard instead of the higher, full-billed charges that PHI requested.
Insurers filed in district court a petition for judicial review of the ALJ's final decision and order. See Tex. Lab. Code § 413.031(k-1) ; Tex. Gov't Code § 2001.174. In their petition, Insurers argued that either Rule 134.203(d)(2)’s 125%-of-Medicare reimbursement provision applies or that, alternatively, the "fair and reasonable" standard applies but would similarly result in a reimbursement rate of 125% of Medicare based on the facts. PHI filed a counter-petition for judicial review in which it asserted that the ADA preempts the TWCA's reimbursement provisions or, alternatively, that it is entitled to its full billed charges. Insurers filed an amended petition adding a declaratory-judgment claim, seeking a declaration that the ADA does not preempt the TWCA's reimbursement provisions. PHI filed a counterclaim seeking a declaratory judgment that the ADA does preempt the TWCA's reimbursement provisions. In addition to directly challenging the reimbursement provisions, PHI "reserve[d] the right to request alternative relief, as applicable and warranted, that the Court declare the ADA preempts [the balance-billing prohibition] and any related statutes, rules or regulations where violation of that prohibition constitutes an administrative violation or warrants a sanction or fine." Insurers filed a plea to the jurisdiction asserting that the trial court lacked jurisdiction over PHI's counter-petition for judicial review because it was untimely filed. The trial court granted Insurers’ plea to the jurisdiction, dismissing PHI's counter-petition.
Insurers and PHI filed competing motions for summary judgment. In their motion, Insurers argued that they are entitled to judgment on their declaratory-judgment claim that the ADA does not preempt the TWCA's reimbursement provisions and on their contention that the ALJ erred in making his 149%-of-Medicare determination because PHI is entitled to only 125% of Medicare regardless of whether the "fair and reasonable" standard applies or the Division's Rule 134.203(d)(2) standard applies. In its motion, PHI argued that the ADA does indeed preempt the TWCA's reimbursement provisions or balance-billing prohibition and that, in any event, the "fair and reasonable" standard applies and Insurers’ argument that 125% of Medicare meets that standard is not supported by the record. The trial court rendered an order granting Insurers’ motion for summary judgment and denying PHI's motion; determining that (a) the ADA does not preempt the TWCA's reimbursement provisions or balance-billing prohibition and (b) PHI is not entitled to any payment greater than 125% of Medicare; and remanding the cause to the Division. PHI perfected this appeal from the trial court's summary judgment.
In our prior opinion, we explicitly addressed only part of PHI's first issue, in which it contended that the ADA preempts the reimbursement provisions. See PHI Air Med. , 549 S.W.3d at 808 n.2. Because PHI argued that it challenged the balance-billing prohibition only in the alternative, and because we determined that the ADA preempts the reimbursement provisions, we did not reach PHI's challenge to the balance-billing prohibition or its three other issues. See id. at 808 n.2, 816 n.14. Because the supreme court has reversed our determination that the ADA preempts the reimbursement provisions, we now address PHI's remaining issues. See Texas Mut. Ins. , 610 S.W.3d at 855 ; Tex. R. App. P. 60.2(c), (d).
DISCUSSION
Whether the ADA preempts Section 413.042
The parties agree that the question of whether the ADA preempts TWCA Section 413.042—the balance-billing prohibition—is before us on remand. We therefore now consider whether, on this record, PHI established that Section 413.042 has a "significant effect" on its prices for carrying injured customers by air. See Texas Mut. Ins. , 610 S.W.3d at 848–49 (citing Morales , 504 U.S. at 388, 112 S.Ct. 2031 ). PHI insists that in performing our preemption analysis we must address the "combined effect" of the reimbursement provisions and the balance-billing prohibition rather than merely the balance-billing prohibition in isolation. We agree with PHI that we must consider the Act as a whole in performing our analysis, as the supreme court has directed. See id. at 851–52 ("Whether the Supremacy Clause displaces state law regulating a subject within its reserved powers should be decided by considering the state statutory and regulatory scheme as a whole, not just the particular provision that an individual litigant prefers to challenge."); see also id. at 852–53 (disagreeing with this Court's conclusion that "the specific rate-setting provisions at issue" could be severed from overall Texas reimbursement scheme).
In conducting anew our preemption analysis—considering the TWCA "as a whole," inclusive of the balance-billing prohibition and reimbursement provisions—we are directly informed by the supreme court's limitation of its preemption analysis to the record before it and a determination of whether PHI met its summary-judgment burden: "PHI must come forward with evidence proving that [the challenged provisions] have a significant effect on price to obtain a summary judgment of preemption." See id. at 842, 849–50, 855. The supreme court based its holding—that the ADA did not preempt the reimbursement provisions—on the record, noting that the facts simply did not "bear out" PHI's position that it would, in fact, recover significantly less for its services under the fair-and-reasonable standard than its full billed amount. Id. at 850. The supreme court supported this conclusion largely on the fact that three different tribunals—the Division, the ALJ, and the district court—had determined three different "fair and reasonable" amounts to which PHI was entitled, based on the same underlying evidence. Id. at 850–51. Reasoning that because it "is possible" under the fair-and-reasonable standard, and on this record, that the amount of PHI's reimbursement could be (1) the full amount PHI billed, (2) the average price PHI is paid for its air-ambulance services, or (3) a price that PHI bargained for in the market, PHI had not demonstrated as a matter of law that the challenged standard has "a significant effect on PHI's prices." See id. at 851 ; cf. id. at 851–52 (distinguishing this case from opinions of Fourth, Tenth, and Eleventh federal circuits determining that ADA preempted state workers’ compensation schemes where those schemes employed fee schedules setting maximum reimbursement limits in conjunction with balance-billing prohibitions).
Throughout its opinion, the supreme court emphasized that the fact-specific inquiry is limited to the record before it. See Texas Mut. Ins. v. PHI Air Med., LLC , 610 S.W.3d 839, 842, 849, 850, 855 (Tex. 2020), cert. denied , ––– U.S. ––––, 141 S.Ct. 2565, ––– L.Ed.2d –––– (2021).
The Division concluded that the full amount billed by PHI was fair and reasonable. The ALJ determined that 149% of the Medicare regulations was fair and reasonable, and the district court determined that 125% of Medicare was the fair and reasonable price.
Taking the supreme court's analysis and employing the same reasoning to whether the balance-billing prohibition—in the context of the entire Act—has a "significant effect" on PHI's prices, we must similarly conclude that PHI did not meet its summary-judgment burden. In sum, "it is possible" under the fair-and-reasonable standard that PHI's reimbursement could be the full amount it billed, and assuming that scenario is the prevailing one (see discussion infra about whether the trial court properly dismissed PHI's petition for judicial review), then the balance-billing prohibition would have no effect on PHI's prices, not just no "significant" effect. See id. at 851 (reasoning that "these [three] possibilities show that the fair and reasonable standard does not have a significant effect on PHI's prices" and that, therefore, "the ADA does not preempt th[e] state reimbursement standard"). In other words, because of the supreme court's holding, it is now indisputable that the reimbursement provisions do not have a significant effect on PHI's prices, at least at this stage in the proceedings when the proper amount of PHI's reimbursement has not been finally adjudicated (by this Court or another tribunal of last resort). If PHI ultimately prevails on obtaining a reimbursement determination awarding it the full amount of its billed charges, such full payment would obviate any need to balance-bill the injured worker (because there would be no balance) and the prohibition would have no effect on the "price" PHI receives. PHI has not met its burden to show, therefore, that as a matter of law the balance-billing prohibition has a "significant effect" on its prices. Accordingly, on this record, we hold that the ADA does not preempt Section 413.042 of the Act or any of the challenged provisions of the Act, when properly considered together.
Presumably the supreme court based its three "possibilities" analysis in large part on the fact that the proper amount of reimbursement under the fair-and-reasonable standard was still at issue and had not been finally adjudicated.
Because of this holding, we need not consider PHI's contention that the MFA does not reverse-preempt the balance-billing prohibition. See Tex. R. App. P 47.1.
Whether the trial court had jurisdiction over Insurers’ petition for judicial review
In its second issue, PHI contends that the trial court lacked jurisdiction over Insurers’ suit because Insurers failed to exhaust their administrative remedies by not requesting a benefit review conference (BRC) under Chapter 410 of the Act. See Tex. Lab. Code §§ 410.024(a) ("Except as otherwise provided by law or commissioner rule, the parties to a disputed compensation claim are not entitled to a contested case hearing or arbitration on the claim unless a benefit review conference is conducted as provided by this subchapter."); 413.0312 (requiring party to medical-fee dispute that "remains unresolved after any applicable review under Sections 413.031(b) through (i)" to "adjudicate the dispute in the manner required by Subchapter B, Chapter 410"). Insurers and the Division respond that the requirement of a BRC is not applicable to the claims at issue because they were filed before June 1, 2012. We agree with Insurers and the Division.
The exhaustion of administrative remedies is an issue of subject-matter jurisdiction and may, therefore, be raised for the first time on appeal. See Croysdill v. Old Republic Ins. , 490 S.W.3d 287, 296 (Tex. App.—El Paso 2016, no pet.).
When the legislature amended the Act in 2011, in House Bill 2605, and added the requirement of a BRC in newly added Section 413.0312, it specifically provided that " Section 413.0312 ... as added by this Act, appl[ies] only to the appeal of a medical fee dispute ... that is based on a review conducted by the [D]ivision ... on or after June 1, 2012." Act of May 29, 2011, 82nd Leg., R.S., 2011 Tex. Gen. Laws 3010, 3023, ch. 1162, § 44 (HB 2605) (further providing that appeals based on Division review before that date are "governed by the law in effect immediately before the effective date of this Act, and that law is continued in effect for that purpose"). The record conclusively establishes that all thirty-three of the disputes at issue here were first filed with the Division before June 1, 2012.
Nonetheless, PHI argues that the applicable date for determining whether Section 413.0312 and its BRC requirement apply is not the initial 2012 filing date of the MFDR requests but, rather, the 2014 date on which the Division began conducting its merits review of the thirty-three fee disputes on remand from SOAH. Given the lengthy and unusual procedural history of these fee disputes, we conclude that the text in HB 2605 referring to "a review conducted by the Division" on or after June 1, 2012, is ambiguous because it can be reasonably construed to refer to any of the following dates: (1) the earliest date on which the Division could possibly have begun its review for the first time (i.e., the filing date of PHI's thirty-three requests for MFDR, triggering review by the Division); (2) the date on which the Division issued a written decision dismissing the thirty-three disputes for lack of jurisdiction due to ADA preemption; (3) the date on which the Division began a second review of the disputes on the merits, after the SOAH remand; or (4) the date on which the Division issued a decision on the merits after considering the disputes on remand from SOAH. See Texas State Bd. of Exam'rs of Marriage & Fam. Therapists v. Texas Med. Ass'n , 511 S.W.3d 28, 41 (Tex. 2017) ("A statute is ambiguous if its words are susceptible to two or more reasonable interpretations, and we ‘cannot discern legislative intent in the language of the statute itself.’ " (citation omitted)).
When a statute is ambiguous, we give "serious consideration" to an agency's interpretation of it. Combs v. Health Care Servs. Corp. , 401 S.W.3d 623, 630 (Tex. 2013). The Division has construed the applicable date for Section 413.0312 ’s BRC requirement as constituting the date on which a MFDR request is first filed. See 28 Tex. Admin. Code §§ 133.307(a) ("This section applies to a request" for MFDR "that is filed on or after June 1, 2012."), .307(g)(1) ("A party seeking review of an MFDR decision must request a benefit review conference no later than 20 days from the date the MFDR decision is received by the party."). It is undisputed that PHI first requested MFDR for the thirty-three fee disputes before June 1, 2012, and it would be unreasonable to construe the Division's merits-based review of those same thirty-three disputes after remand from SOAH as the filing of new MFDRs. The Division's construction of HB 2605's BRC requirement provides unambiguous notice to litigants of the requirements for judicial review, lends predictability to proceedings before the Division, and supports consistency throughout a particular dispute's journey from start to finish regardless of the number of times or variety of iterations the Division or ALJ consider the same underlying dispute. See Tex. Gov't Code § 311.023 (including among factors courts may consider in construing statutes "the consequences of a particular construction"). Accordingly, we hold that Insurers were not required to request a BRC to meet the exhaustion-of-administrative-remedies requirement and that the trial court had jurisdiction over Insurers’ petition for judicial review. We overrule PHI's second issue.
Whether the trial court erred in granting Insurers’ plea to the jurisdiction
In its third issue, PHI contends that the trial court erred in granting Insurers’ plea to the jurisdiction and dismissing PHI's counter-petition for judicial review. We agree with PHI and sustain its third issue.
In their plea, Insurers argued that PHI failed to timely file its petition and that timely filing is a jurisdictional prerequisite. See Tex. Lab. Code § 413.031(k–1) (providing for judicial review of Division's or SOAH's final decision, including requirement that—for medical-fee disputes—suit be filed "not later than the 45th day after the date on which [SOAH] mailed the party the notification of the decision"); Otieno v. Texas Bd. of Nursing , No. 03-14-00251-CV, 2015 WL 4909766, at *2 (Tex. App.—Austin Aug. 11, 2015, no pet.) (mem. op.) ("This Court has consistently held that failure to timely file a suit for judicial review deprives the district court of subject-matter jurisdiction.").
However, since this Court's opinion in Otieno , the supreme court has held that a similarly worded section of the Act, although mandatory, was not jurisdictional, noting that the high court has been "reluctant to conclude that a provision is jurisdictional, absent clear legislative intent to that effect." Texas Mut. Ins. v. Chicas , 593 S.W.3d 284, 286–87 (Tex. 2019) (quoting In re United Servs. Auto. Ass'n , 307 S.W.3d 299, 306 (Tex. 2010) ( USAA )). In Chicas , the supreme court considered Section 410.252 of the Act, which provides that a party seeking to appeal a decision of the Division's appeals panel "may seek judicial review by filing suit not later than the 45th day after the date on which the division mailed the party the decision of the appeals panel." Id. at 288 (citing Tex. Lab. Code § 410.252(a) ). Section 413.031(k-1), at issue here, is worded similarly. See Tex. Lab. Code § 413.031(k-1).
In determining in Chicas that the forty-five-day deadline for filing suit for review of the decision of an appeals panel was not jurisdictional, the supreme court found dispositive the following four factors: (1) the absence of explicit language in the statute indicating the legislature intended the deadline to be jurisdictional, i.e., any language referring to the trial court's jurisdiction; (2) the absence in the statute of any specific consequences for noncompliance with the timeline; (3) the recognition that treatment of the deadline as merely mandatory rather than jurisdictional would not frustrate any of the Act's purposes; and (4) the fact that if the deadline were jurisdictional, an unfavorable consequence would be that final judgments would be vulnerable and subject to future attack on the ground that the deadline was not met. See Chicas , 593 S.W.3d at 289.
Chicas is the supreme court's latest opinion demonstrating a retreat during the last twenty years from its rule nearly a century ago that "strict compliance with all statutory prerequisites is necessary to vest a trial court with jurisdiction." Prairie View A & M Univ. v. Chatha , 381 S.W.3d 500, 510 (Tex. 2012) (citing Mingus v. Wadley , 115 Tex. 551, 285 S.W. 1084, 1087 (1926) ). That rule "remained the law for decades and, consistent with Mingus , multiple courts of appeals treated the statutory deadline for seeking judicial review of appeals-panel decisions as mandatory and jurisdictional." Chicas , 593 S.W.3d 284 (collecting cases). However, beginning in 2000, the supreme court "identified concerns with the approach to subject-matter jurisdiction that [it] set out in Mingus. " Id. (citing Dubai Petrol. Co. v. Kazi , 12 S.W.3d 71, 76 (Tex. 2000) ). Dubai overruled Mingus "to the extent that it characterized the plaintiff's failure to establish a statutory prerequisite as jurisdictional," noting that "the modern direction of policy is to reduce the vulnerability of final judgments to attack on the ground that the tribunal lacked subject matter jurisdiction." Dubai , 12 S.W.3d at 76 ; see also USAA , 307 S.W.3d at 304 (holding that two-year statutory deadline for filing suit alleging employment discrimination is mandatory but not jurisdictional). After setting out the above four permissible factors for determining whether a statutory filing deadline is jurisdictional, Chicas explicitly overruled several cases from courts of appeals that—after Dubai and USAA —"continued to hold that the 45-day deadline to file suit under section 410.252(a) is jurisdictional without applying the USAA analysis to decide the issue." Chicas , 593 S.W.3d at 287, 291 (listing cases).
The statute at issue here appears in the same Act and reads substantially the same as that in Chicas , and therefore the supreme court's analysis of its four prescribed factors applies equally and controls here. We conclude that Chicas implicitly overruled this Court's Otieno case and others in that line, to the extent that they conflict with Chicas ’s holding. See Otieno , 2015 WL 4909766, at *2 ; see, e.g., Jones v. State Bd. of Educator Certification , 315 S.W.3d 237, 244 (Tex. App.—Austin 2010, pet. denied) ; HCA Healthcare Corp. v. Texas Dep't of Ins. , 303 S.W.3d 345, 352 (Tex. App.—Austin 2009, no pet.).
We hold that Section 413.031(k-1) ’s requirement that a petition for judicial review be filed within forty-five days of the mailing of a SOAH decision is not a jurisdictional prerequisite to suit. Accordingly, we sustain PHI's third issue and hold that the trial court erred in granting Insurers’ plea to the jurisdiction and dismissing PHI's counter-petition for judicial review.
What amount of reimbursement is appropriate
In its final issue, PHI contends that the trial court erred in concluding that 125% of the Medicare rate is sufficient reimbursement and in remanding the fee disputes to SOAH with instructions that no further monies are due to PHI. PHI argues that under the applicable "fair and reasonable" standard, it is entitled to its full billed charges. It asks this Court to reverse the trial court's summary judgment that 125% of Medicare is a proper reimbursement rate and render judgment that it is "entitled to its full billed charges."
However, because the trial court dismissed PHI's counter-petition for judicial review—in which PHI made its assertion about entitlement to its full billed charges—and because PHI's only live claim when the trial court rendered summary judgment was its counterclaim for declaratory relief (in which it raised arguments pertaining only to preemption and reverse-preemption), the trial court has not in the first instance addressed PHI's arguments about its entitlement to its full billed charges. Furthermore, PHI's argument about its full billed charges is based on its argument that the "fair and reasonable" standard applies instead of the Division's fee guidelines (requiring a reimbursement rate of 125% of Medicare), which is a dispute that the trial court did not explicitly resolve in its final summary judgment, which merely determined that a reimbursement rate of 125% was proper. The trial court's judgment reads, "The Court further considered the Petitioners’ judicial review challenge ... and concluded that no additional payments greater than the 125% of Medicare amounts already paid are due." The trial court's judgment does not specify whether its determination that no greater amount is due than 125% of Medicare is based on the determination that the "fair and reasonable" standard applies or that a specific Division fee guideline applies. Insurers made arguments in their summary-judgment motion supporting 125% of Medicare under either standard.
In dicta, the supreme court indicated that the "fair and reasonable" standard applies. See Texas Mut. Ins. , 610 S.W.3d at 852 ("Texas does not have fixed reimbursement limits," "uses a reasonableness standard—not a fee schedule—to determine reimbursement for air ambulance services," and employs a "fact-driven standard—which requires insurers to pay 100% of fair and reasonable charges—[that] has no [forbidden significant] effect" on prices.).
We thus conclude that because the trial court has not in the first instance determined whether the "fair and reasonable" standard applies (which would potentially allow PHI to obtain reimbursement in the amount of 125% or at an amount greater than 125% of Medicare, up to and including its full billed charges) or whether a specific Division fee guideline applies (which would limit PHI's reimbursement to only 125% of Medicare), we do not reach PHI's fourth issue on appeal and instead note that this dispute about which standard applies is an integral part of PHI's issues raised in its counter-petition for judicial review, which we are remanding to the trial court.
CONCLUSION
Having determined that the trial court did not err in determining that the ADA does not preempt the provisions of the TWCA challenged by PHI, we affirm the corresponding portion of the trial court's summary judgment. However, because we conclude that the trial court erred in granting Insurers’ plea to the jurisdiction and dismissing PHI's counter-petition for judicial review, we reverse the trial court's order granting the plea and dismissing PHI's counter-petition. We also reverse the portion of the trial court's summary judgment determining that PHI is entitled to no reimbursement greater than 125% and remanding the cause to SOAH and remand this cause to the trial court for further proceedings consistent with this opinion.