Judge rules for ETMC
By Michael V. Hannigan
Monitor Staff Writer
MARSHALL–A federal judge ruled in favor of East Texas Medical Center
Athens last week in a whistleblower lawsuit alleging the hospital
engaged in Medicaid fraud.
Judge T. John Ward of the Eastern District Court, Marshall, granted
ETMC’s motion for summary judgment in the lawsuit. Jury selection for a
trial had been scheduled to start Monday.
“We are extremely happy with the ruling,” ETMC attorney Dean Davis said.
“This is a very complicated issue because of all the state and federal
rules. But, we were confident that we’d be in great shape, because the
law and the facts were on our side.”
While ETMC was celebrating, the other side wasn’t quite ready to give
Attorney Dean Gresham, who filed the original lawsuit on behalf of
Linnea Rose, said the summary judgment covered just a portion of the
Other issues, including allegations that ETMC conspired with the Texas
Organization of Rural and Community Hospitals to commit Medicaid fraud,
could still be in play, Gresham said.
“We have to wait until we receive the court’s actual written order,”
Davis disagreed, saying the summary judgment wiped out the entire
The lawsuit was originally filed against both ETMC Athens and
Tyler-based ETMC Regional Healthcare System. However, Ward recently
split the lawsuit into two separate actions.
The summary judgment came in the lawsuit against ETMC Athens. The
lawsuit against the entire ETMC system has been sealed, which is the
normal procedure for a whistleblower lawsuit.
Davis said ETMC would deal with that lawsuit at the proper time,
pointing out it is also before Ward’s court.
The original lawsuit was first filed by Rose in June, 2005, and sealed
while the federal government investigated the allegations against ETMC
in order to decide whether or not to become involved in the case.
The U.S. Attorney’s Office could have taken over the lead in the case.
In February, 2007, however, the government “declined to intervene in the
The lawsuit alleged that ETMC Athens used money transfers to the
Henderson County Hospital Authority Board to illegally take part in the
Medicaid Upper Payment Limit (UPL) program.
Medicaid is funded by both state and federal money. The UPL program is a
mechanism to match state Medicaid money to federal Medicaid money.
In Henderson County’s case, the process included ETMC Athens placing
money in a hospital authority board bank account, which was later
forwarded through the state to the federal government, and then
transferred back again – this time with matching federal money included
– to the hospital authority.
This process is called an intergovernmental transfer. Both the initial
money and the federal funds were then sent back to ETMC Athens.
One such intergovernmental transfer in September, 2002, turned an
original deposit of $1.2 million into $2.8 million.
ETMC Athens never denied engaging in the process, but Davis said the
hospital did so by following the rules set up by the Texas Health and
Human Services Commission and the instructions of the Texas Organization
of Rural and Community Hospitals (TORCH).
“This is a watershed moment for the entire UPL program,” Davis said. “It
will benefit a number of hospitals in the same position as ETMC Athens.”
While other hospitals in Texas have been in the same situation as ETMC,
Davis explained, only the Athens hospital has been sued and suspended
from the program.
In April, the Henderson County Hospital Authority received word it had
been suspended from the UPL program by the Texas Health and Human
Services Commission (HHSC).
In a letter to Authority board president David Monk and ETMC Athens
Administrator Pat Wallace, the HHSC said the hospital authority was
suspended because of “significant questions” about the way the program
was administered. Among the agency’s concerns was the Linnea Rose
Following this week’s court victory, Davis didn’t mince words on what he
thought about the suspension.
“The idea that a state agency would refer to a private lawsuit in this
situation is reprehensible,” he said. “They (HHSC) are costing Henderson
County and the hospital $300,000 a month in indigent health care costs
that we’re entitled to, and we are going to get it back for the county
and the hospital.
“That’s why the celebration for the lawsuit can’t take too long, because
that’s our next step,” he said. “We are not going to stop until we get
this hospital back in the program.”
Man dies in boating accident
Monitor Staff Reports
MABANK–One man was killed and another injured in a boating accident on
Cedar Creek Lake Aug. 1.
According to Henderson County Game Warden Shawn Smith, a boat carrying
Mark Robin “Bo” Anderson and Samuel Stevens collided with a retaining
wall across from the area known as The Bluffs, near Eustace, around 11
Anderson was care-flighted to East Texas Medical Center in Tyler, where
he died of his injuries the next day.
Stevens is recovering in Trinity Mother Frances Hospital in Tyler.
Smith said details of the accident are sketchy and the investigation
Anderson, 47, was a graduate of Athens High School and Tyler Junior
He owned Green Source Lawn Services.
He is survived by wife Tonya, daughters Natalie, Marci and Bailey and
By Pearl Cantrell
Monitor Staff Writer
ATHENS–Henderson County Commissioners were uncertain when it came to
hiring outside legal counsel to review half a dozen open records
requests made to the county auditor.
After some discussion, commissioners Jerry West and Ronny Lawrence
agreed to accept the advice from the Attorney General’s office to hire
independent legal counsel.
However, Precinct 1 Commissioner Joe Hall and County Judge David
Holstein chose to abstain from participating in the decision.
Precinct 2 Commissioner Wade McKinney was not present at Tuesday’s
regularly scheduled meeting.
The requests came from County Auditor James Owen and were received by
auditor Ann Marie Lee.
Lee distributed one-inch thick packets on the law and its interpretation
to commissioners Tuesday.
At least one request asks for records going back to January, 2007.
Researching and finding them will take some time and staffing to get
done, Lee said.
“I’m not a lawyer and the law in this area seem convoluted to me,” Lee
She responded to most of the requests asking that the request be
narrowed more specifically.
Owen made the open records request as a private citizen and not as the
county attorney, he told The Monitor.
“I don’t see what’s so unclear about what I’m asking for,” he added.
Owen is requesting a list of written records/information requests
submitted to the auditor’s office and a copy of the auditor’s response
to those requests, whether they be from other county departments or the
“We distribute information all the time. That’s what we do,” Lee told
Owen also requested a copy of any document or compilation related to an
evaluation of the treasurer’s office.
Also, a copy of documents she’s provided to any member of the Hospital
Authority Board, and specifically David Monk, president of that board,
along with any document evidencing any fees collected for providing
“We just follow the law on fees. It’s about 10 cents a copy and any
overhead. If it’s just one sheet of paper or something minimal like that
we don’t bother with fees,” she said.
In other business, commissioners:
• renewed a 13-month contract on the Title IV-E Child Welfare Services
for supplemental foster care maintenance. The funding helps with back to
school needs, specific transportation costs, graduation expenses, gifts,
personal items and allowances and clothing. The federal grant contract
is valued at $38,900, grant officer Jennifer Nicholson said.
• renewed another 13-month contract on the Title IV-E Child Welfare
Services for legal services to compensate the county for personnel
working on Child Protective Services cases. The contract is set at
$115,718 in reimbursements, which can be amended as necessary Nicholson
• approved a contract change that reduces an agreement with Tyler
Technologies by $820.
“Thanks for checking into this and saving taxpayers $800,” Holstein said
to IT director Betty Spencer.
• approved a request from the City of Poynor for labor and equipment to
repair certain streets within the city limits.
West estimated the labor and equipment use at $5,000. The city will
purchase the 40 to 50 tons of hot mix needed to make the repairs.
• accepted $485 from Caney City for reimbursement on a patch Precinct 1
performed on a road partly maintained by the county and the city.
• paid bills totaling $178,100.76.
• tabled action on a request to increase a contract with the meal
service provider at the jail, so certain details could be clarified.
Monitor Photo/Kerry Yancey
Area youngsters splash down a blow-up slip-and-slide during the Tamarack
festivities marking National Nite Out in Gun Barrel City Tuesday. For
images from the event, see page 4A.