Today, the Texas Supreme Court issued a short order list that included only one opinion — granting the pending motion for rehearing and issuing a new opinion and judgment in El Paso Hospital District v. Texas Health and Human Services Comission.

The order list also denied two other motions for rehearing — Fort Worth Independent School District v. Service Employment Redevelopment, No. 05-0427 (motion for rehearing filed 9-21-2007). and Mid-Century Insurance Co. v. Ademaj, No. 05-0016 (motion for rehearing filed 12-12-2007).

  • El Paso Hospital District v. Texas Health and Human Services Commission. The original opinion in El Paso Hospital District had been issued among thirteen decisions on August 31, 2007 — the Court’s traditional burst of opinions just before the end of the fiscal year.

    This case involves a challenge by several hospitals to a deadline set by HHSC for calculating reimbursement rates. The hospitals contended that the deadline was too early and thus prevented certain particularly expensive claims from being included. HHSC disagreed with that assertion and contended that some cutoff was needed to make the system operate smoothly — that the calculation had to, at some point, be final.

    Originally, the Court reversed in part and affirmed in part, concluding that the rules had not been validly enacted but that they should nonetheless be left in effect until the agency had an opportunity to cure them under Texas Government Code §2001.040.

    The revised opinion — like the first, a unanimous opinion of the Court authored by Justice Medina — reverses in full, concluding that the invalid agency rule should be enjoined immediately under Texas Government Code §2001.035.

    The new opinion also removes some language from the original that — although it may not have itself created confusion in the law — had seemed to embrace it.

    The original opinion included these sentences:

    No definitive test exists for determining whether an agency’s statement affects private rights. Although we recognize no bright line rule or single test, one approach is to consider whether an agency’s “statement” (here the cutoff) has a binding effect on a private party. For instance, if the cutoff is merely the agency’s view on an issue as found in letters, guidelines, reports or court briefs, and the statement has no binding effect on a private party, it is likely nothing more than a statement of the agency’s internal policies or procedures. See Brinkley v. Tex. Lottery Comm’n, 986 S.W.2d 764, 769-70 (Tex. App.—Austin 1999, no pet.). However, if the cutoff adopts guidelines, practice requirements, or enforcement policies that will have a binding effect on private parties, it more likely affects private rights. See Tex. Alcoholic Beverage Comm’n v. Amusement & Music Operators of Tex., Inc., 997 S.W.2d 651, 658-59 (Tex. App.—Austin 1999, pet. dism. w.o.j.).

    The revised opinion omits those sentences entirely. It instead simply says that the provision at issue here “directly affect[s] the Hospitals’ right to reimbursement, but was not adopted through proper rule-making procedures.”