Cecile Erwin Young, in Her Official Capacity as the Executive Commissioner of the Texas Health and Human Services Commission; Molina Healthcare of Texas, Inc.; And Aetna Better Health of Texas, Inc. v. Cook Children's Health Plan, Texas Children's Health Plan, Superior Health Plan, Inc., and Wellpoint Insurance Company

Opinion

ACCEPTED 15-24-00114-CV FIFTEENTH COURT OF APPEALS AUSTIN, TEXAS 7/10/2025 4:41 PM No. 15-24-00114-CV CHRISTOPHER A. PRINE CLERK FILED IN In the Court of Appeals for the 15th COURT OF APPEALS AUSTIN, TEXAS Fifteenth District of Texas 7/10/2025 4:41:43 PM CHRISTOPHER A. PRINE Clerk Cecile E. Young, in her official capacity as Executive Commissioner of Texas Health & Human Services Commission, Molina Healthcare of Texas, Inc., and Aetna Better Health of Texas, Inc., Appellants, v. Cook Children’s Health Plan, Texas Children’s Health Plan, Superior HealthPlan, Inc., and Wellpoint Insurance Company, Appellees.

Appeal from the 455th Judicial District Court, Travis County, Texas, Trial Court Cause No. D-1-GN-24-003839, Hon. Laurie Eiserloh, Presiding

Appellee Superior HealthPlan, Inc.’s Motion for Temporary Relief Under Rule 29.3

Karen D. Walker Richard B. Phillips, Jr. Pro Hac Vice Motion Pending Texas Bar No. 24032833 karen.walker@hklaw.com rich.phillips@hklaw.com Tiffany Roddenberry Holland & Knight LLP Pro Hac Vice Motion Pending One Arts Plaza tiffany.roddenberry@hklaw.com 1722 Routh Street, Suite 15500 Holland & Knight LLP Dallas, Texas 75201 315 S. Calhoun Street, Suite 600 (214) 964-9500 (telephone) Tallahassee, Florida 32301 (214) 964-9501 (facsimile) (850) 425-5612 (telephone) (850) 224-8832 (facsimile)

Counsel for Appellee Superior HealthPlan, Inc. Table of Contents Page Index of Authorities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii

Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Factual and Procedural Background . . . . . . . . . . . . . . . . . . . . . . . . . . 5

1. HHSC’s RFP . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

2. The Intended Contract Awards and the Resulting Disruption of Healthcare for More than 1.5 Million Vulnerable Texans . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

3. HHSC’s Wrongful Disclosure . . . . . . . . . . . . . . . . . . . . . . . . 9

4. The Executive Commissioner Is Poised to Further Her Unlawful Conduct through Administration of the STAR Kids RFP . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

5. The Executive Commissioner’s Ultra Vires Actions . . . . . . . . . . . . 13

6. The Trial Court’s Temporary Injunction . . . . . . . . . . . . . . . . . 19

Argument . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

1. This Court has authority to enjoin further action by the Executive Commissioner pending resolution of this appeal. . . . . . . . 23

2. The Court should reinstate the trial court’s injunction pending resolution of this appeal. . . . . . . . . . . . . . . . . . . . . . . 25

A. The trial court correctly found that Appellees established a probable right to relief. . . . . . . . . . . . . . . . . . . . . . . . . 25

-i- Page

B. A temporary order is necessary to prevent irreparable harm to Superior. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27

C. Without a temporary order, Superior’s claims could be rendered moot. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29

D. A temporary order will preserve the status quo pending appeal. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31

Conclusion and Prayer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33

Certificate of Conference . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35

Certificate of Compliance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35

-ii- Index of Authorities Page Cases

Benavides Indep. Sch. Dist. v. Guerra, 681 S.W.2d 246 (Tex. App.—San Antonio 1984, writ ref’d n.r.e.) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31

In re Abbott, 645 S.W.3d 276 (Tex. 2022) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

In re Geomet Recycling LLC, 578 S.W.3d 82 (Tex. 2019) (orig. proceeding) . . . . . . . . . . . . . . . . passim

In re Newton, 146 S.W.3d 648 (Tex. 2004) (orig. proceeding) . . . . . . . . . . . . . . . . . . 31

In re State, 711 S.W.3d 641 (Tex. 2024) . . . . . . . . . . . . . . . . . . . . . . . . . . 24, 25

In re Tex. Educ. Agency, 619 S.W.3d 679 (Tex. 2021) (orig. proceeding) . . . . . . . . . . . . . . . 23, 30

Tex. Educ. Agency v. A+ Texas Teachers, No. 03-23-00318-CV, 2023 WL 4981604 (Tex. App.—Austin Aug. 4, 2023, no pet.) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

Tex. Educ. Agency v. Houston Indep. Sch. Dist., 609 S.W.3d 569 (Tex. App.—Austin 2020, no pet.) . . . . . . . . . . . . 24, 29

Tex. Health & Human Servs. Comm’n v. Sacred Oak Med. Ctr. LLC, No. 03-21-00136-CV, 2021 WL 2371356 (Tex. App.—Austin June 9, 2021, no pet.) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23, 32

Tex. State Bd. of Examiners in Optometry v. Lane, 349 S.W.2d 763 (Tex. App.—Fort Worth 1961, no writ) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31

Transp. Co. of Tex. v. Robertson Transports, Inc., 261 S.W.2d 549 (Tex. 1953) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31

-iii- Page Universal Health Servs. v. Thompson, 24 S.W.3d 570 (Tex. App.—Austin 2000, no pet.) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31

Statutes

Acts 2023, 88th Leg., R.S., Ch. 769, sec. 1.01 . . . . . . . . . . . . . . . . . . . . . 2

Tex. Civ. Prac. & Rem. Code § 6.001 . . . . . . . . . . . . . . . . . . . . . 4

Tex. Civ. Prac. & Rem. Code § 51.014(b) . . . . . . . . . . . . . . . . . . 22

Tex. Gov’t Code § 533.002 . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

Tex. Gov’t Code § 533.003 . . . . . . . . . . . . . . . . . . . . . . . . . 13, 14

Tex. Gov’t Code § 533.003(a)(1) . . . . . . . . . . . . . . . . . . . 2, 13, 14, 17

Tex. Gov’t Code § 533.003(a)(2) . . . . . . . . . . . . . . . . . . . . . . . . 19

Tex. Gov’t Code § 533.004 . . . . . . . . . . . . . . . . . . . . . . . . . passim

Tex. Gov’t Code § 533.004(a) . . . . . . . . . . . . . . . . . . . . . . . . . 5, 17

Tex. Gov’t Code § 533.0035 . . . . . . . . . . . . . . . . . . . . . . . . . . 8, 17

Tex. Gov’t Code § 536.052 . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 14

Tex. Gov’t Code § 536.052(d). . . . . . . . . . . . . . . . . . . . . . . . . 2, 15

Tex. Gov’t Code § 540.0051. . . . . . . . . . . . . . . . . . . . . . . . . . . 19

Tex. Gov’t Code § 540.0203 . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

Tex. Gov’t Code § 540.0204 . . . . . . . . . . . . . . . . . . . . . . . . . 2, 14

Tex. Gov’t Code § 540.0206 . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

Tex. Gov’t Code § 543A.0052 . . . . . . . . . . . . . . . . . . . . . . . . 2, 14

Tex. Gov’t Code § 2155.144(c) . . . . . . . . . . . . . . . . . . . . . . 2, 18, 19

-iv- Page Tex. Gov’t Code § 2155.144(d) . . . . . . . . . . . . . . . . . . . . . . . . . . 2

Tex. Health & Safety Code § 62.155 . . . . . . . . . . . . . . . . . . . 3, 15

Regulations

1 T.A.C. § 391.101 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

1 T.A.C. § 391.209(3)(A) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

Rules

Tex. R. App. P. 24.2(a)(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

Tex. R. App. P. 29.3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim

Tex. R. App. P. 52.10 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

-v- Introduction The notice of appeal filed by Appellant Cecile E. Young, in her official capac-

ity as Executive Commissioner of the Texas Health and Human Services

Commission (“HHSC”) automatically superseded the trial court’s temporary in-

junction. 1 Under Texas Rule of Appellate Procedure 29.3 and the Court’s inherent

authority to protect the parties’ rights, Appellee Superior HealthPlan, Inc. moves

for an order reinstating the temporary injunction pending this appeal’s final disposi-

tion.

Superior is a managed care organization (“MCO”) that brought an ultra vires

suit against the Executive Commissioner. Appellees Cook Children’s Health Plan,

Texas Children’s Health Plan, and Wellpoint Insurance Company filed separate ul-

tra vires suits against the Executive Commissioner. The trial court consolidated the

four suits into a single case. 2 The consolidated suits arise from the Executive Com-

missioner’s failure to comply with law in procuring managed care services for the

State of Texas Access Reform (“STAR”) Medicaid program and the Children’s

1 Molina Healthcare of Texas, Inc. and Aetna Better Health of Texas, Inc. have also pur- ported to file notices of appeal of the trial court’s temporary injunction. The Appellees’ have filed a joint motion to dismiss Molina’s and Aetna’s appeals. For the reasons in that motion, Superior disagrees that Molina and Aetna are proper parties to this appeal. 2 CR:2278.

Appellee Superior HealthPlan, Inc.’s Motion for Temporary Relief — Page 1 Health Insurance Program (“CHIP”) (together, “STAR & CHIP”) under Request

for Proposals No. HHS0011152 (the “RFP”). After an unlawful procurement pro-

cess, HHSC issued a notice of intent to award contracts. If the Executive

Commissioner authorizes HHSC to execute contracts based on the intended con-

tract awards, her action will be ultra vires because (among other reasons detailed

below):

• The intended contract awards do not “give preference to organizations that have significant participation in the organization’s provider net- work from each health care provider in the region who has traditionally provided care to Medicaid and charity care patients” as required by Texas Government Code section 533.003(a)(1); 3

• The intended contract awards do not give preference to organizations that have successfully implemented quality initiatives as required by Texas Government Code section 536.052(d); 4

• HHSC did not document all relevant factors identified in Texas Gov- ernment Code section 2155.144(c) in determining the intended contract awards, including, but not limited to, quality and past performance, as required by Texas Government Code section 2155.144(d); and

3 Effective April 1, 2025, portions of Texas Government Code Chapter 533 were repealed and recodified as part of “the nonsubstantive revision of the health and human services laws governing the Health and Human Services Commission, Medicaid, and other social services.” Acts 2023, 88th Leg., R.S., Ch. 769, sec. 1.01. Section 533.003 was recodified as Texas Government Code section 540.0204. Id. Because the applicable statutes were in Chapter 533 at the time of the temporary-injunction hearing, and for consistency of refer- ence, in this appeal, Superior will continue to refer to the sections in Chapter 533 as they existed at the time of the trial court’s order on appeal. 4 Section 536.052 has been recodified as Texas Government Code section 543A.0052.

Appellee Superior HealthPlan, Inc.’s Motion for Temporary Relief — Page 2 • The intended award of “mandatory” non-Medicaid CHIP contracts vi- olates Texas Government Code section 533.004, 5 which applies to only Medicaid contracts and also violates Texas Health & Safety Code sec- tion 62.155, which requires competitive procurement of CHIP contracts.

HHSC’s STAR & CHIP procurement was also fatally compromised by the

improper disclosure of proposals to third parties, including counsel for a rival bidder,

during the procurement. The disclosure created an unlevel playing field that de-

stroyed the procurement’s integrity. If the Executive Commissioner authorizes

HHSC to proceed with the intended contract awards, a majority of STAR & CHIP

members (more than 1.5 million of Texas’s most vulnerable residents including preg-

nant women and children) will lose their current health plan.

After a three-and-a-half-day evidentiary hearing, the trial court denied the Ex-

ecutive Commissioner’s plea to the jurisdiction, thereby rejecting the Executive

Commissioner’s assertion that the trial court lacked jurisdiction to hear the matter.

The court also temporarily enjoined the Executive Commissioner from signing, ex-

ecuting, or taking any other action to implement the intended contract awards under

5 Section 533.004 has been recodified as Texas Government Code section 540.0206.

Appellee Superior HealthPlan, Inc.’s Motion for Temporary Relief — Page 3 the RFP and halted proceedings in a separate procurement, the STAR Kids procure-

ment, which HHSC is admittedly administering the same way as the STAR & CHIP

procurement. 6

The Executive Commissioner’s appeal of the Temporary Injunction super-

sedes the injunction. Tex. R. App. P. 24.2(a)(3); Tex. Civ. Prac. & Rem.

Code § 6.001. The Executive Commissioner has agreed to abide by the Temporary

Injunction until this Court decides any motions for temporary relief under Rule 29.3.

Superior requests that this Court reinstate the temporary injunction under Rule 29.3

and its inherent authority until disposition of this appeal. By granting a temporary

injunction, the trial court determined that Superior and the other Appellees have a

probable right to relief on their requests for declaratory judgment against the Execu-

tive Commissioner. The trial court also found that Superior and the other Appellees

would suffer imminent, irreparable harm without injunctive relief. As explained in

this motion, temporary relief from this Court is necessary to prevent that harm, to

preserve Superior’s rights until disposition of the appeal, and to maintain the status

quo.

6 CR:5875 (attached as Ex. A).

Appellee Superior HealthPlan, Inc.’s Motion for Temporary Relief — Page 4 Superior therefore respectfully requests that this Court exercise its inherent

powers and its authority under Rule 29.3 to issue a temporary order that reinstates

the temporary injunction while this appeal is pending.

Factual and Procedural Background 1. HHSC’s RFP

In December 2022, HHSC issued the RFP soliciting proposals from MCOs

for STAR & CHIP managed care services in all 13 service areas (“SAs”) throughout

the State. 7 The RFP capped the number of MCOs that would be awarded STAR &

CHIP contracts in each SA and the number of STAR & CHIP contracts that could

be awarded to an MCO. 8 The RFP mandated that a respondent submit a single pro-

posal for all SAs without differentiation by SA. 9 It also required respondents to

designate and rank in order the SAs in which they wanted to provide services. 10

Texas Government Code section 533.004 mandates that HHSC award certain

Medicaid managed care contracts (including STAR) if an MCO meets the statute’s

requirements (each a “mandatory contract”). See Tex. Gov’t Code §

7 CR:3519; 5RR:76–77& Ex. P-38 (the RFP). The exhibits from the temporary injunction hearing are in volumes 9 through 20 of the Reporter’s Record. 8 CR:3519, 3521–22; 5RR:76–77 & Ex. P-38 (RFP § 3.1.7.2). 9 CR:3520; 5RR:76–77 & Ex. P-38 (RFP § 2.5.2). 10 CR:3520; 5RR:76–77 & Ex. P-38 (RFP § 2.5.2).

Appellee Superior HealthPlan, Inc.’s Motion for Temporary Relief — Page 5 533.004(a). Even though CHIP is not a Medicaid program to which section 533.004

applies, the RFP does not provide a separate process for awarding CHIP contracts

to respondents that also meet section 533.004’s requirements for mandatory Medi-

caid contracts. 11

The RFP describes a multistage process that started with an initial compliance

screening and scoring of responses to technical questions.12 After the technical ques-

tions were scored, respondents in the competitive range were invited to participate

in oral presentations, which were also scored.13 Under the RFP, all respondents with

a valid section 533.004 mandatory contract claim proceeded to oral presentations

regardless of score.14 The RFP notified respondents in advance of the four topics to

be addressed by scenarios during oral presentations. 15 A respondent’s final weighted

score was to be determined by combining the weighted technical question score with

the weighted oral presentation score. 16

11 CR:3531–32, 3538–40; 5RR:76–77 & Ex. P-38 (RFP § 1.1); 6RR:50 (“And CHIP is not a Medicaid program and does not fall under 533.004; correct? A: That’s correct.”). 12 CR:3521; 5RR:76–77 & Ex. P-38 (RFP § 2.1). 13 CR:3521; 5RR:76–77, 79–80 & Exs. P-38 (RFP § 3.1.3.3) & P-284 at 5–6. 14 CR:3521; 5RR:76–77 & Exs. P-38 (RFP §§ 3.1.3.3, 3.1.6) & P-284 at 6. 15 CR:3521; 5RR: 76–77 & Ex. P-38 (RFP § 3.1.5). 16 CR:3521; 5RR:76–77 & Ex. P-38 (RFP §§ 3.1.5, 3.1.6); 5RR:208–09.

Appellee Superior HealthPlan, Inc.’s Motion for Temporary Relief — Page 6 HHSC invited Superior to participate in oral presentations along with all other

Respondents.17 The oral presentations concluded on October 13, 2023.18

The RFP arbitrarily capped the number of MCO contracts in each SA and

limited the number of SAs that an MCO could be awarded under the RFP to seven.19

The RFP sets forth a methodology for determining SA assignments, which equate to

contract awards.20 Under the RFP’s formulaic approach:

• in each SA where only one respondent has a validated section 533.004 mandatory contract claim, that respondent will be assigned to the SA without any consideration or reference to scores;

• in each SA where more than one respondent has a validated section 533.004 mandatory contract claim, the respondent with the highest final weighted score of those respondents with a validated section 533.004 claim in the SA will be assigned to the SA, and all other respondents with a validated section 533.004 claim will be considered in the same manner as respondents without a validated section 533.004 claim;21 and

• after assignment of respondents with validated section 533.004 mandatory contract claims, respondents will be assigned to SAs in descending order based on each respondent’s final weighted score until the maximum number of MCOs per SA has been assigned, using each

17 CR:3521; 5RR:79–80 & Ex. P-284 at 6. 18 CR:3521; 5RR:79–80 & Ex. P-284 at 6. 19 CR:3521–22; 5RR:79–80 & Ex. P-284 at 6. 20 CR:3521–22; 5RR:76–77 & Ex. P-38 (RFP § 3.1.7.3). 21 No SA had more than one respondent with a validated section 533.004 mandatory con- tract claim. 5RR:79–80 & Ex. P-284 at 3–4.

Appellee Superior HealthPlan, Inc.’s Motion for Temporary Relief — Page 7 respondent’s ranked order of preference up to a maximum of seven SA assignments per respondent.22

The RFP requires HHSC to certify that each respondent recommended for an

award is “reasonably able to fulfill the terms of the Contract, as required by Texas

Government Code Section 533.0035.” 23 The RFP states that failure to obtain this

certification “will result in no further consideration for Contract award, and another

Respondent may be considered for Contract award in accordance with this sec-

tion.” 24 Instead of doing its own investigation and making the required certification,

HHSC simply relied on each respondent’s self-certification that it will be reasonably

able to fulfill the terms of any contract awarded. 25

2. The Intended Contract Awards and the Resulting Disruption of Healthcare for More than 1.5 Million Vulnerable Texans

In March 2024, HHSC, under the Executive Commissioner’s direction, is-

sued notice of the intended contract awards from the RFP.26 These intended

22 CR:3521–22; 5RR:76–77 & Ex. P-38 (RFP § 3.1.7.3) at 30. 23 CR:3522; 5RR:76–77 & Ex. P-38 (RFP § 3.1.7.5) at 31. Section 533.0035 has been recod- ified without substantive change at Texas Government Code section 540.0203. 24 CR:3522; 5RR:76–77 & Ex. P-38 (RFP § 3.1.7.5) at 31. 25 CR:3532; 5RR:266–68 & Ex. P-192; see also 5RR:274 (“Q. And so HHSC just took as to true anything that an MCO put in their responses to the specific certification questions; is that correct? A. Yes. We relied on the representation of truth and accuracy that’s made in the context of submitting a response, yes.”). 26 See CR:3523–24; 5RR:81–82 & Ex. P-95.

Appellee Superior HealthPlan, Inc.’s Motion for Temporary Relief — Page 8 contract awards are based on a procurement process in which HHSC violated statu-

tory procurement requirements. Thus, if the intended contract awards are finalized,

the Executive Commissioner will exceed her authority under the statutes governing

HHSC’s procurement of Medicaid and CHIP managed care contracts and will neg-

atively impact more than 1.5 million children, pregnant mothers, and families

throughout the State of Texas. 27 The ultra vires intended contract awards will have

devastating implications for STAR & CHIP members, healthcare providers, and the

Texas Medicaid managed care system as a whole. 28 Superior seeks prospective relief

prohibiting the Executive Commissioner from finalizing awards made under a pro-

cess that violates the Executive Commissioner’s lawful authority. 29

3. HHSC’s Wrongful Disclosure

The procurement was also fundamentally flawed because HHSC erroneously

disclosed proposals (including Superior’s) to third parties, including one of Supe-

rior’s competitors, while the procurement was ongoing. 30 This wrongful disclosure

27 See CR:3512, 3514, 3524–25, 3555–56, 3585–87; 7RR:102–04. 28 CR:3512, 3514, 3518, 3524–25, 3555–56; see also 6RR:144 (Executive Commissioner con- cedes that the intended contract awards will require more than 1.5 million Texans to change health plans). 29 CR:3525–26. 30 CR:3526–27; see also 5RR:129, 137–40 (testimony of an HHSC employee about the dis- closure).

Appellee Superior HealthPlan, Inc.’s Motion for Temporary Relief — Page 9 undermined the procurement’s integrity. Ensuring a level playing field is a basic

tenet of procurement law. 31 This procurement utterly failed in that regard. 32

In August 2023, months before issuing notice of the intended contract awards,

HHSC erroneously disclosed the proposals to third parties. 33 The proposals were

disclosed to legal counsel for Aetna, a respondent to the RFP. The disclosure hap-

pened during the evaluation of proposals and before Aetna’s oral presentation.34 In

January 2024, months after wrongfully disclosing the proposals (and before issuing

the notice of intended contract awards), HHSC recognized its error. It emailed the

recipients of the erroneously disclosed proposals asking that the proposals be de-

stroyed, but this attempted cure was too late. 35 Moreover, HHSC did not confirm,

and does not know, whether all the copies were destroyed. 36

This improper disclosure of the proposals to Aetna destroyed the integrity of

the procurement and created an unlevel playing field where Aetna enjoyed an unfair

31 CR:3526–27; see also 5RR:126–29 (testimony of an HHSC employee about the im- portance of keeping proposals confidential while the procurement is ongoing). 32 6RR:14–16 (testimony of an expert on government procurement about the effect of the disclosures). 33 CR:3526–27, 3588–3602; see also 5RR:129, 135–38; 6RR:161–62. 34 CR:3526, 3588–92; see also 5RR:137–40. 35 CR:3527; 5RR:138–39, 142–45& Exs. P-78, P-80, P-81. 36 CR:3527; 5RR:138–39.

Appellee Superior HealthPlan, Inc.’s Motion for Temporary Relief — Page 10 competitive advantage going into its oral presentations. 37 The RFP notified respond-

ents that oral presentations would address the following subjects: oversight and

coordination with subcontractors, maternal mortality and morbidity, coordination

with dental maintenance organizations, and preventive care rates. 38 All of these sub-

jects were covered in each respondent’s proposal. 39 Indeed, Wellpoint’s

representative testified that the disclosed copy of its proposal reflected Wellpoint’s

strategy relating to subcontracting, and he explained how Wellpoint’s competitors

could have used that information in preparing for their oral presentations. 40 Thus,

the undisputed evidence presented at the hearing demonstrated that Aetna could use

the information in its competitor’s proposals to bolster its own responses and under-

cut its competitors in the oral presentations. 41

HHSC’s release of the proposals before the oral presentations and while the

evaluation was ongoing irretrievably compromised the procurement’s integrity. 42

37 CR:3526–27; 6RR:15, 31–32. 38 CR:3526–27; 5RR:76–77 & Ex. P-38 at 27 (RFP § 3.1.5); 5RR:140. 39 CR:3526–27. 40 6RR:35–37 & Excerpts from Ex. P-236; 8RR:88–89. 41 CR:3526–27; 6RR:30–32, 37. 42 CR:3528, 3603–39; see also 6RR:16–17 (hearing testimony of Superior’s procurement ex- pert).

Appellee Superior HealthPlan, Inc.’s Motion for Temporary Relief — Page 11 Thus, HHSC failed to follow applicable law requiring a consistent and uniform pro-

curement process, fair consideration of proposals, and transparency as required by

HHSC’s own rules governing the procurement. 43

4. The Executive Commissioner Is Poised to Further Her Unlawful Con- duct through Administration of the STAR Kids RFP

In May 2024, HHSC issued Request for Proposals No. HHS0013071 (the

“STAR Kids RFP”) seeking bids for STAR Kids, a separate Texas Medicaid man-

aged care program that provides benefits to disabled children and young adults. 44

The STAR Kids RFP is nearly identical to the STAR & CHIP RFP.45 HHSC

developed the process for the STAR & CHIP procurement and the STAR Kids pro-

curement together. An HHSC representative testified at the injunction hearing that

HHSC is using the same process for the STAR Kids RFP that it used for the STAR

& CHIP RFP.46 In fact, the representative confirmed that in the STAR Kids RFP,

HHSC will treat the statutory preferences the same as it did in the STAR & CHIP

RFP—in other words, HHSC will fail to apply the statutorily required preferences.47

43 CR:3528; see also 6RR:16–17. 44 CR:3530 . 45 CR:3530 ; see also 5RR:78; 6RR:229–30. 46 5RR:78; 6RR:229–30.. 47 Id.

Appellee Superior HealthPlan, Inc.’s Motion for Temporary Relief — Page 12 If HHSC evaluates proposals for the STAR Kids RFP just like the STAR & CHIP

RFP, then the Executive Commissioner again will act ultra vires. 48

5. The Executive Commissioner’s Ultra Vires Actions

Appellees established that the Executive Commissioner has acted and will act

ultra vires in at least the following ways: 49

First, in determining the intended contract awards, HHSC, under the Execu-

tive Commissioner’s direction, failed to “give preference to organizations that have

significant participation in the organization’s provider network from each health care

provider in the region who has traditionally provided care to Medicaid and charity

care patients” as required by Texas Government Code section 533.003. An HHSC

employee admitted at the hearing that section 533.003(a)(1) is mandatory, that it re-

quires HHSC to give a preference based on existing provider networks, and that it

requires those networks to be evaluated by region.50 But the proposals were not di-

vided by region because the RFP was a statewide procurement, and there was no

scoring based on region. 51 The RFP does not include any discussion of the preference

48 CR:3530. 49 CR:3531–33. 50 5RR:221–23. 51 5RR:97–98.

Appellee Superior HealthPlan, Inc.’s Motion for Temporary Relief — Page 13 required by section 533.003(a)(1) and does not explain how HHSC would give the

required preference. 52 And nothing in the RFP asked respondents to provide infor-

mation about their existing provider networks from which the preference in section

533.003(a)(1) could be determined.53 Nor did HHSC consider publicly available in-

formation that would demonstrate the extent of the respondents’ existing provider

networks. 54 HHSC’s training for the evaluators failed to instruct them to consider

any respondent’s existing provider network, much less any respondent’s existing

network by region, or whether the network includes providers that have traditionally pro-

vided Medicaid and charity care. 55 Nor did HHSC instruct evaluators to give any

preference as required by section 533.003(a)(1). 56

Second, in determining the intended contract awards, HHSC, under the Ex-

ecutive Commissioner’s leadership, failed to give preference to organizations that

have successfully implemented quality initiatives or meet quality of care and cost-

52 5RR:76–77, 85–86 & Ex. P-38. 53 5RR:97. 54 CR:3534–35; 5RR:98. 55 5RR:88–89 (“Q. HHSC didn’t instruct the evaluators on the Section 533.003 or 536.052 preferences, did it? A. No.”). Again, as of April 1, 2025, section 533.003 has been recodified without substantive change at Texas Government Code section 540.0204, and section 536.052 has been recodified without substantive change at Texas Government Code sec- tion 543A.00052. 56 Id.

Appellee Superior HealthPlan, Inc.’s Motion for Temporary Relief — Page 14 efficiency benchmarks as required by Texas Government Code section 536.052(d).57

The Executive Commissioner readily admitted in public testimony before the House

Human Services Committee that existing quality metrics were not considered in

making the contract awards; rather, HHSC considered what the respondents prom-

ised to do in the future. 58 An HHSC employee testified at the injunction hearing that

the RFP did not ask respondents to provide information about their implementation

of quality initiatives in the past, and that evaluators were not told to consider past

implementation of quality initiatives and would not have done so unless a respondent

happened to include that information in their proposal. 59

Third, HHSC, under the Executive Commissioner’s direction, is proposing

to unlawfully award CHIP contracts to respondents that HHSC has determined

meet the requirements for a mandatory contract under Texas Government Code sec-

tion 533.004, which applies only to Medicaid programs (such as STAR) but not to

CHIP, which is not a Medicaid program. In addition to section 533.004, this action

would also violate Texas Health & Safety Code section 62.155, which requires

HHSC to competitively procure CHIP contracts without any mandatory contract

57 CR:3535–38; 5RR:100–03. 58 6RR:162–64; 5RR:162 & Ex. P-148 at 64–65. 59 5RR:102–04..

Appellee Superior HealthPlan, Inc.’s Motion for Temporary Relief — Page 15 set-aside. An HHSC employee who testified at the hearing conceded that section

533.004 does not apply to CHIP.60 Instead, under the “guise” of a best value deter-

mination, HHSC intends to award CHIP contracts to those respondents HHSC has

determined are entitled to a mandatory contract under section 533.004 without any

statutory authority and without considering the scores awarded in the procure-

ment. 61 In fact, HHSC intends to award a CHIP contract to every respondent in the

STAR & CHIP procurement that claimed entitlement to a Medicaid mandatory con-

tract under section 533.004, regardless of that respondent’s score, including the

respondent that came in last place out of all 18 respondents. 62

In response to a protest to the STAR & CHIP RFP submitted by Wellpoint

(formerly Amerigroup) before the proposal deadline, HHSC considered amending

the RFP to provide for mandatory contract awards only for STAR Medicaid con-

tracts, with CHIP awards being determined based on scoring.63 But HHSC denied

the protest and did not to amend its process. 64 By allowing HHSC to move forward

60 5RR:111. 61 5RR:125–26. 62 6RR:59, 157. 63 6RR:51–52. 64 6RR:153–54; 8RR:70.

Appellee Superior HealthPlan, Inc.’s Motion for Temporary Relief — Page 16 with contracts that unlawfully award CHIP contracts based on a respondent’s eligi-

bility for a mandatory contract under section 533.004, the Executive Commissioner

will exceed the scope of her legal authority. 65

Fourth, the intended contract awards, if finalized, will violate Texas Govern-

ment Code section 533.004, as amended in 2021, because the Executive

Commissioner proposes to award mandatory contracts without statutorily required

considerations, including considerations regarding provider networks in the region

under Texas Government Code section 533.003(a)(1), as required by Texas Govern-

ment Code section 533.004(a). 66

Fifth, the Executive Commissioner intends to award contracts that do not

comply with HHSC’s obligation under Texas Government Code section 533.0035

to “evaluate and certify that the organization is reasonably able to fulfill the terms of

the contract, including all requirements of applicable federal and state law” before

awarding a contract to an MCO. The Executive Commissioner allowed respondents

to self-certify without any meaningful evaluation by HHSC. 67 Because the statute

65 CR:3538–40 . 66 CR:3541–42; 5RR:124–26. 67 CR:3544–45; 5RR:266–68 & Ex. P-192; see also 5RR:27 (“Q. And so HHSC just took as to true anything that an MCO put in their responses to the specific certification questions;

Appellee Superior HealthPlan, Inc.’s Motion for Temporary Relief — Page 17 requires certification by HHSC, not self-certification, the intended contract awards

violate this statute.

Sixth, HHSC’s wrongful disclosure of the proposals, including to Aetna’s le-

gal counsel, destroyed the procurement’s integrity and created an unlevel playing

field resulting in intended contract awards procured through a process that does not

provide fair consideration of proposals as required by 1 T.A.C. sec-

tion 391.209(3)(A), and that is far from consistent, uniform, and transparent, as

required by 1 T.A.C. section 391.101.68 The Executive Commissioner allowed

HHSC to issue the intended contract awards and continues to allow HHSC to pro-

ceed with the procurement notwithstanding her and HHSC’s knowledge of this fatal

error. 69

Seventh, the intended contract awards will violate Texas Government Code

section 2155.144(c) because HHSC did not document its consideration of the rele-

vant best value criteria in that section. The requirement that HHSC document that

is that correct? A. Yes. We relied on the representation of truth and accuracy that’s made in the context of submitting a response, yes.”). 68 CR:3546–47, 3588–3639; see also 6RR:16–17 (hearing testimony of Superior’s procure- ment expert). 69 5RR:129, 136; 6RR:161–62.

Appellee Superior HealthPlan, Inc.’s Motion for Temporary Relief — Page 18 it has considered all relevant best value factors is mandatory, not discretionary. 70

Under the intended contract awards, the Executive Commissioner will fail to imple-

ment STAR by contracting with MCOs to improve Texans’ health by promoting

continuity of care and ensuring high quality health care services in the recipient’s

local community as required by Texas Government Code section 533.002. 71 Nor did

the Executive Commissioner give extra consideration to continuity of care as re-

quired by section 533.003(a)(2). An HHSC employee testified that HHSC did not

take into account that more than 1.5 million Texans will have to change health plans

under the intended contract awards. 72 Thus, the Executive Commissioner cannot

show that HHSC’s intended contract awards comply with the requirement in section

2155.144(c) to document that HHSC considered all relevant factors, including, but

not limited to, quality and past performance.

6. The Trial Court’s Temporary Injunction

Following an evidentiary hearing that lasted three-and-a-half-days with 11 wit-

nesses (including the Executive Commissioner) testifying, the trial court denied the

70 CR:3533, 3549; 5RR:107–08, 169, 226–27. 71 Section 533.002 has been recodified without substantive change at Texas Government Code section 540.0051. 72 6RR:97–98 (“Did HHSC consider the transition of hundreds of thousands if not over a million of Texans when evaluating the proposals? A. No.”).

Appellee Superior HealthPlan, Inc.’s Motion for Temporary Relief — Page 19 Executive Commissioner’s plea to the jurisdiction and enjoined the Executive Com-

missioner from awarding, signing, executing, or taking any other action to implement

the intended contract awards under the RFP. 73 The court also enjoined the Executive

Commissioner from proceeding with the STAR Kids RFP which the testimony at

the hearing established is modeled after the STAR & CHIP procurement. 74

The trial court found that “[Appellees] have established a cause of action

against [the Executive Commissioner] and a probable right to the relief sought on

their claims that [the Executive Commissioner] has violated and, unless enjoined,

will continue to violate statutory and regulatory requirements applicable to the

RFP.”75 The court specifically found that “[Appellees] have established that [the

Executive Commissioner] has violated and will continue to violate the Texas Gov-

ernment Code, Texas Health and Safety Code, and Texas Administrative Code in

procuring managed care contracts for STAR & CHIP in Texas.” 76 The court deter-

mined that “sovereign immunity does not bar [Appellees’] claims or deprive the

[trial court] of subject-matter jurisdiction” because “[Appellees] properly seek only

73 CR:5883 (attached as Ex. A). 74 Id. 75 CR:5876. 76 CR:5877.

Appellee Superior HealthPlan, Inc.’s Motion for Temporary Relief — Page 20 prospective relief—specifically injunctive relief prohibiting [the Executive Commis-

sioner] from awarding, executing, or otherwise implementing the intended RFP

contract and thus preventing further unlawful acts in connection with Defendants’

procurement or contracting processes, as well as accompanying declaratory relief.” 77

The court also made specific findings about the ways the Executive Commissioner

has and will continue to act ultra vires unless enjoined. 78

The court also found that each Appellee would suffer irreparable harm with-

out injunctive relief. 79 Superior’s harm includes loss of members even before the

implementation of the proposed contracts, loss of employees because of the uncer-

tainty created by the intended contract awards, loss of providers participating in

Superior’s network because of the uncertainty and lack of leverage in provider nego-

tiations, loss of investments in strategic partnerships intended to scale over time, and

a decrease in Superior’s ability to continue to offer the same level of service in the

time leading up to implementation of the proposed contracts. 80 The court found that

money damages would not be adequate compensation because the harms cannot be

77 CR:5876 78 CR:5877–78. 79 CR:5879–82. 80 CR:5880–81.

Appellee Superior HealthPlan, Inc.’s Motion for Temporary Relief — Page 21 measured by any certain pecuniary standard and because the Executive Commis-

sioner would be immune from any damages claims. 81 The court also found that the

potential harm to the Appellees outweighs any potential harm to the Executive Com-

missioner or HHSC from maintaining the statute quo, considering operations under

the intended contract awards were not scheduled to begin until September 1, 2025,

and HHSC has extended STAR & CHIP contracts in the past. 82 Finally, the court

found that the public will not be harmed by a temporary injunction, but would suffer

harm if injunctive relief were not granted particularly given that more than 1.5 million

STAR & CHIP members would be forced to change health plans. 83 The trial court

also set a bond 84 and by the parties’ agreement, set trial on the merits for November

3, 2025. 85

The Executive Commissioner appealed the denial of her plea to the jurisdic-

tion and the grant of the temporary injunction. On a joint motion by the Executive

81 CR:5882. 82 Id. 83 CR:5883–84. 84 CR:5884. 85 Id.. Because the Executive Commissioner has also appealed the denial of her plea to the jurisdiction, all proceedings in the trial court have been automatically stayed during this appeal. See Tex. Civ. Prac. & Rem. Code § 51.014(b).

Appellee Superior HealthPlan, Inc.’s Motion for Temporary Relief — Page 22 Commissioner and the Appellees, this Court abated the appeal during the 2025 leg-

islative session. The Executive Commissioner has agreed to abide by the temporary

injunction until this Court disposes of the Appellees’ motions for temporary relief

under Rule 29.3.86

Argument 1. This Court has authority to enjoin further action by the Executive Com- missioner pending resolution of this appeal.

Texas Rule of Appellate Procedure 29.3 authorizes this Court to “make any

temporary orders necessary to preserve the parties’ rights until disposition of the

appeal.” Tex. R. App. P. 29.3. The Court also has inherent authority “to preserve

a party’s right to judicial review of acts that it alleges are unlawful and will cause it

irreparable harm.” Tex. Health & Human Servs. Comm’n v. Sacred Oak Med. Ctr.

LLC, No. 03-21-00136-CV, 2021 WL 2371356, at *5 (Tex. App.—Austin June 9,

2021, no pet.). The Texas Supreme Court has acknowledged this authority, holding

that Rule 29.3 gives an appellate court the power to provide relief notwithstanding

the state’s automatic right to suspend a temporary injunction. See generally In re Tex.

Educ. Agency, 619 S.W.3d 679 (Tex. 2021) (orig. proceeding).

86 The agreement is attached hereto as Ex. B.

Appellee Superior HealthPlan, Inc.’s Motion for Temporary Relief — Page 23 The Supreme Court has also confirmed that “Rule 29.3 expressly contem-

plates” that a party can ask “the court of appeals to protect it from irreparable

harm.” In re Geomet Recycling LLC, 578 S.W.3d 82, 89 (Tex. 2019) (orig. proceed-

ing); see also Tex. Educ. Agency v. Houston Indep. Sch. Dist., 609 S.W.3d 569, 578 (Tex.

App.—Austin 2020, no pet.) (“Rule 29.3 provides a mechanism by which [this

Court] may exercise the scope of [its] authority over parties, including [its] inherent

power to prevent irreparable harm to parties properly before [it] pursuant to [its]

appellate jurisdiction in an interlocutory appeal.”). The Texas Supreme Court has

also held that Rule 29.3 allows courts of appeals to issue temporary orders to preserve

the status quo. In re Abbott, 645 S.W.3d 276, 282 (Tex. 2022); see also Tex. Educ.

Agency v. A+ Texas Teachers, No. 03-23-00318-CV, 2023 WL 4981604, at *2 (Tex.

App.—Austin Aug. 4, 2023, no pet.).

About a year ago, the Texas Supreme Court provided additional guidance

about the standards for temporary orders under Rule 29.3. See In re State, 711 S.W.3d

641 (Tex. 2024). In that case, the Court addressed a request for temporary relief

under Rule 52.10. Id. at 644. But the Court analogized the standards for relief under

Rule 52.10 to the standards for relief under Rule 29.3. Id. Accordingly, the Court’s

statements about proper considerations for relief under Rule 52.10 are instructive.

Appellee Superior HealthPlan, Inc.’s Motion for Temporary Relief — Page 24 The Court noted that “the familiar considerations governing injunctive relief in

other contexts will generally apply in this context as well.” Id. at 645.

The Court observed that some preliminary inquiry into the merits may be nec-

essary because “‘just relief’ that ‘preserve[s] the parties’ rights’ cannot be afforded

without some consideration of the merits.” Id. The merits should not be “defini-

tively decided,” but the Court should make a preliminary inquiry into the merits of

the parties’ positions. Id. “Another essential consideration attendant on any request

for injunctive relief, including in this posture, is the injury that will befall either party

depending on the court’s decision.” Id. The Court may also consider “other case-

specific equitable considerations that bear on its exercise of discretion.” Id.

2. The Court should reinstate the trial court’s injunction pending resolution of this appeal.

A. The trial court correctly found that Appellees established a proba- ble right to relief.

As an initial matter, the merits of Superior’s and the other Appellees’ posi-

tions warrant relief under Rule 29.3. As discussed on pages 13–19 above, the evidence

shows that the Executive Commissioner has acted, and will act, ultra vires in multiple

respects if the intended contract awards are finalized and the contracts executed and

implemented. The Executive Commissioner’s decision to issue the notice of the in-

tended contract awards violated, and finalizing those contract awards and executing

Appellee Superior HealthPlan, Inc.’s Motion for Temporary Relief — Page 25 the contracts will violate numerous statutes governing the procurement. Moreover,

HHSC improperly disclosed the proposals to Aetna (which also responded to the

RFP) before Aetna’s oral presentation and before HHSC finished evaluating the pro-

posals. This improper disclosure infected the entire procurement process and

forever destroyed the procurement’s integrity, casting serious doubt on the fairness

and propriety of the intended contract awards.

As detailed on pages 13-23, above, during the multi-day hearing, the trial court

heard evidence and made findings that HHSC did not ask respondents for infor-

mation necessary to apply the mandatory statutory preferences, did not train the

evaluators about the existence of preferences or instruct them to consider the pref-

erences, and did not consider available information about the respondents’ existing

provider networks or implementation of quality initiatives. The proposed awards

also improperly tie mandatory contracts under section 533.004 (which applies to

only Medicaid) with the CHIP process, so that HHSC intends to automatically

award a CHIP contract to every respondent that submitted a mandatory contract

claim under section 533.004, regardless of the respondent’s score. The process also

failed to consider continuity of care (that is, the detailed process by which the over-

sight of a member’s healthcare is transferred from one MCO to another), even

though the proposed awards will force more than 1.5 million STAR & CHIP members

Appellee Superior HealthPlan, Inc.’s Motion for Temporary Relief — Page 26 to change their health plans. HHSC also used a perfunctory self-certification process

and failed to investigate whether the respondents are capable of fulfilling the pro-

posed contracts’ terms as required by statute. The trial court therefore correctly

concluded that Superior and the other Appellees have established a probable right to

relief on the merits of their claims.

B. A temporary order is necessary to prevent irreparable harm to Su- perior.

The Texas Supreme Court has held that Rule 29.3 allows a court of appeals to

issue temporary orders to protect parties from irreparable harm. Geomet, 578 S.W.3d

at 89. Regarding Superior, the trial court found that execution of the proposed con-

tracts would begin transition activities toward new contracts that would substantially

reduce the number of STAR & CHIP members that Superior serves today, causing

real and immediate harm to Superior.87 Contract execution would destabilize Supe-

rior’s workforce, as its employees—already grappling with the uncertainty of their

jobs in light of the intended awards—would be at heightened risk for targeted re-

cruitment by competing MCOs. 88 Superior also demonstrated that, absent injunctive

87 CR:5880–81 (attached as Ex. A); 7RR:104 (over 700,000 current Superior members will have to change plans if the Executive Commissioner proceeds with the intended contract awards). 88 CR:5880–81 (attached as Ex. A); 7RR:113–15.

Appellee Superior HealthPlan, Inc.’s Motion for Temporary Relief — Page 27 relief, the intended contract awards would jeopardize its provider networks by dis-

couraging providers from contracting with Superior and diminishing Superior’s

bargaining power in provider negotiations. 89 The loss of employees and providers

will make it difficult or impossible for Superior to continue providing the same level

of service that it currently provides under its existing STAR & CHIP contract

through the end of the term of that contract. 90 This will not only hinder Superior’s

operations but will also cause reputational damage. 91

Superior also presented evidence that it will begin losing membership imme-

diately if the contracts are executed, even though the new STAR & CHIP contracts

are not scheduled to be operational for some time. 92 Providers are already informing

Superior’s members that Superior will no longer be providing STAR & CHIP ser-

vices in certain areas of the state and are encouraging members to switch plans. 93

The confusion among providers and members alike will only worsen if the contract

awards are executed notwithstanding the pending challenge to their legality. 94

89 CR:5880–81 (attached as Ex. A); 7RR:115–16. 90 CR:5880–81 (attached as Ex. A); 7RR:115. 91 CR:5880–81 (attached as Ex. A); 7RR:115. 92 CR:5880–81 (attached as Ex. A); 7RR:116–17. 93 CR:5880–81 (attached as Ex. A); 7RR:116–17. 94 CR:5880–81 (attached as Ex. A); 7RR:116–17.

Appellee Superior HealthPlan, Inc.’s Motion for Temporary Relief — Page 28 Money damages will not be sufficient because the harm Superior will suffer will be

extremely difficult to measure by any pecuniary standard. 95 Moreover, money dam-

ages will not be sufficient because the state would claim immunity from any damages

claims.96

C. Without a temporary order, Superior’s claims could be rendered moot.

Another consideration in granting temporary relief under Rule 29.3 is ensur-

ing that parties will not lose their ability to obtain effective judicial relief. In Texas

Education Agency, the Austin Court of Appeals encountered a similar factual situa-

tion and granted temporary relief. Tex. Educ. Agency, 609 S.W.3d at 578. The court

recognized that without temporary relief to preserve the parties’ rights until the dis-

position of the appeal, the nongovernmental party could be prevented “from ever

meaningfully challenging acts by the executive branch that the party alleges to be

both unlawful and reviewable by courts and that it further alleges will cause it irrep-

arable harm.” Id. at 578 (citing Geomet, 578 S.W.3d at 89). Accordingly, the court

concluded that “to effectively perform our judicial function and to preserve the sep-

aration of powers, we must exercise our inherent authority and use Rule 29.3 to make

95 CR:5882 (attached as Ex. A). 96 Id.

Appellee Superior HealthPlan, Inc.’s Motion for Temporary Relief — Page 29 orders “to prevent irreparable harm to parties that have properly invoked [our] ju-

risdiction in an interlocutory appeal.” Id. (quoting Geomet, 578 S.W.3d at 90). The

Supreme Court upheld the court’s grant of temporary relief. See In re Tex. Educ.

Agency, 619 S.W.3d 679, 692 (Tex. 2021) (holding that “the court of appeals was not

without power to issue temporary relief”).

Here, without temporary relief, Superior may lose its ability to meaningfully

challenge the Executive Commissioner’s actions. If the Executive Commissioner is

permitted to execute any STAR & CHIP contracts pursuant to the RFP while the

appeal is pending, Superior could be deprived of its primary remedy: a declaration

that the Executive Commissioner will act ultra vires should she execute or attempt

to implement the contract awards and an injunction to prevent that ultra vires action.

Similarly, if the Executive Commissioner continues processing the STAR Kids RFP,

Superior could be deprived of available remedies for the ultra vires actions in the

STAR Kids RFP if HHSC executes STAR Kids contracts before this appeal is de-

cided. Thus, any meaningful challenge to the Executive Commissioner’s actions

requires that she be temporarily enjoined from taking any steps to award or execute

the proposed contracts or to continue processing the Star Kids RFP until Superior’s

claims are fully adjudicated.

Appellee Superior HealthPlan, Inc.’s Motion for Temporary Relief — Page 30 D. A temporary order will preserve the status quo pending appeal.

Appellate courts have “great flexibility in preserving the status quo based on

the unique facts and circumstances presented.” Geomet, 578 S.W.3d at 89. The

Texas Supreme Court defines “the status quo” as “the last, actual, peaceable, non-

contested status which preceded the pending controversy.” In re Newton, 146

S.W.3d 648, 651 (Tex. 2004) (orig. proceeding). “If an act of one party alters the

relationship between that party and another, and the latter contests the action, the

status quo cannot be the relationship as it exists after the action.” Universal Health

Servs. v. Thompson, 24 S.W.3d 570, 577 (Tex. App.—Austin 2000, no pet.) (quoting

Benavides Indep. Sch. Dist. v. Guerra, 681 S.W.2d 246, 249 (Tex. App.—San Antonio

1984, writ ref’d n.r.e.)). Moreover, “where an order is entered by a Board or Com-

mission of this State in opposition to the objections and contentions of a party whose

justiciable interests are adversely affected thereby, the ‘status quo’ would be the

state of affairs as they existed immediately prior to the time the order was entered.”

Tex. State Bd. of Examiners in Optometry v. Lane, 349 S.W.2d 763, 765 (Tex. App.—

Fort Worth 1961, no writ) (citing Transp. Co. of Tex. v. Robertson Transports, Inc., 261

S.W.2d 549 (Tex. 1953)).

Here, the status quo is that the Executive Commissioner has not executed the

STAR & CHIP contracts that are the subject of HHSC’s intended contract awards

Appellee Superior HealthPlan, Inc.’s Motion for Temporary Relief — Page 31 and that no announcement of intended contract awards has been made in the STAR

Kids RFP. Executing those contracts and continuing with the STAR Kids RFP

would adversely impact Superior’s justiciable interests.

This case is similar to Texas Health & Human Services Commission v. Sacred

Oak Medical Center, LLC, 03-21-00136-CV, 2021 WL 2371356, at *7 (Tex. App.—

Austin June 9, 2021) (order on motion for temporary relief). In Sacred Oak, HHSC

issued an order “denying Sacred Oak’s renewal application for the license for its

psychiatric hospital and requiring it to cease operations immediately.” Id. at *1. The

trial court entered a temporary injunction that prohibited HHSC from enforcing its

order and required it “to restore Sacred Oak to the operational status quo that ex-

isted prior to [the Commission’s] enforcement of the Order.” Id. After HHSC

appealed, the court of appeals granted temporary relief under Rule 29.3 to reinstate

the injunction pending appeal. Id. at *7. The court of appeals reasoned that the last

peaceable, non-contested status was that Sacred Oak was licensed and open. Id. at

*5. Accordingly, temporary relief under Rule 29.3 was appropriate to preserve that

status quo. Here, the last peaceable, non-contested status is that the Executive Com-

missioner has not finalized the intended contract awards or signed the contracts and

STAR & CHIP members are served by their current health plans. Thus, temporary

Appellee Superior HealthPlan, Inc.’s Motion for Temporary Relief — Page 32 relief under Rule 29.3 is proper to preserve that status quo by restraining the Execu-

tive Commissioner from taking any action to award, execute, or implement the

STAR & CHIP contracts arising out of the RFP, which will result in more than 1.5

million STAR & CHIP members having to change health plans, or to continue with

the STAR Kids RFP.

Conclusion and Prayer The trial court correctly concluded that Superior has a probable right to relief

on the merits of its claims because the Executive Commissioner acted and intends to

continue to act ultra vires in the procurement process. The trial court also correctly

concluded that Superior and the other Appellees face imminent and irreparable harm

that warrants temporary injunctive relief. The trial court’s injunction was automati-

cally superseded when the Executive Commissioner filed her notice of appeal. To

preserve Superior’s ability to obtain effective relief, Superior requests that the Court

grant temporary relief reinstating the trial court’s Temporary Injunction. Superior

further requests general relief.

Appellee Superior HealthPlan, Inc.’s Motion for Temporary Relief — Page 33 Dated: July 10, 2025 Respectfully submitted, Holland & Knight LLP

By: /s/ Richard B. Phillips, Jr.

Richard B. Phillips, Jr. Texas Bar No. 24032833 rich.phillips@hklaw.com

One Arts Plaza 1722 Routh Street, Suite 15500 Dallas, Texas 75201 (214) 964-9500 (telephone) (214) 964-9501 (facsimile)

Karen D. Walker Pro Hac Vice Motion Pending karen.walker@hklaw.com Tiffany Roddenberry Pro Hac Vice Motion Pending tiffany.roddenberry@hklaw.com

315 S. Calhoun Street, Suite 600 Tallahassee, Florida 32301 (850) 425-5612 (telephone) (850) 224-8832 (facsimile)

Attorneys for Appellee Superior HealthPlan, Inc.

Appellee Superior HealthPlan, Inc.’s Motion for Temporary Relief — Page 34 Certificate of Conference Under Texas Rule of Appellate Procedure 10.1(a)(5), I certify that counsel for Appellee Superior HealthPlan, Inc. conferred with all counsel via email regarding the relief sought in this motion. Counsel for Appellant Cecile E. Young, in her official capacity as Executive Commissioner of Texas Health & Human Services Commis- sion, stated that the Executive Commissioner is opposed to this motion. Counsel for Aetna Better Health of Texas, Inc. stated that Aetna is opposed to the motion. Coun- sel for Molina Healthcare of Texas, Inc. stated that Molina is opposed to this motion, but does not intend to file a response.

/s/ Richard B. Phillips, Jr. Richard B. Phillips, Jr.

Certificate of Compliance I certify that this Motion contains 6,891 words, excluding the portions of the Motion exempted by Rule 9.4(i)(1).

/s/ Richard B. Phillips, Jr. Richard B. Phillips, Jr.

Appellee Superior HealthPlan, Inc.’s Motion for Temporary Relief — Page 35 Ex. A Filed in The District Court of TravisCounty,Texas,.j

OCTO4 2024 /JfZ- At ,{.j:ft /J M CAUSE NO. D-1-G -24-003839 Pric.aDistrktClerk Vet•,t':...,.

COOK CHILDREN'S HEAL TH PLAN; § IN THE DISTRICT COURT TEXAS CHILDREN'S HEALTH PLAN; § SUPERIOR HEALTHPLAN, INC.; and § WELLPOINT INSURANCE COMPANY, § § Plaintiffs, § § v. § TRAVIS COUNTY, TEXAS § CECILE ERWIN YOUNG, in her official § capacity as Executive Com missioner of the § Texas Health and Human Services § Commission, § § Defendant. § 353rd JUDICIAL DISTRICT

TEMPORARY INJUNCTION AND ORDER DENYING DEFENDANT'S PLEA TO THE JURISDICTION

Before the Court are the Applications for Temporary Injunction (the "Applications") filed

by Plaintiffs Cook Children's Health Plan ("Cook Children's"), Texas Children's Health Plan

("TCHP"), Superior HealthPlan, Inc. ("Superior"), and Wellpoint Insurance Company

("Wellpoint," and collectively, "Plaintiffs"); and the Plea to the Jurisdiction (the "Plea") filed by

Defendant Cecile Erwin Young ("Defendant"), in her official capacity as Executive Commissioner

of the Texas Health and Human Services Commission (''HHSC"). After considering Plaintiffs'

Applications and Defendant's response; Defendant's Plea and Plaintiffs' responses; the pleadings

and attached evidence in these consolidated cases (Nos. D- l -GN-24-003839, D- I -GN-24-003874,

D-1-GN-004059, and D-1-G -24-004327); the parties' prehearing briefing; the evidence admitted

in the record and adduced at the hearing held on September 30, October I, October 2, and October

plicable authorities; the arguments of counsel, and all other matters properly before the

Court DENIES Defendant's Plea and GRA TS Plaintiffs' Applications.

Page I of 10

Page 5875 The Court makes the following findings:

I. The Court has subject-matter jurisdiction over the claims in these consolidated

cases because Plaintiffs have alleged and offered evidence demonstrating that Defendant will act

ultra vires in awarding, executing, and implementing the contracts arising out of Request for

Proposals No. HHS00 11152 (the '·RFP" or "STAR & CHIP RFP") because she has acted ultra

vires in administering the RFP. Plaintiffs properly seek only prospective relief-specifically,

injunctive relief prohibiting Defendant from awarding, executing, or otherwise implementing the

intended RFP contracts and thus preventing further unlawful acts in connection with Defendant's

procurement or contracting processes, as well as accompanying declaratory relief. Accordingly,

sovereign immunity does not bar Plaintiffs' claims or deprive the Court of subject-matter

jurisdiction.

2. The Court has personal jurisdiction over the parties in these consolidated cases.

3. Venue is proper in this Court.

4. Through the RFP, Defendant sought to procure managed care services for the State

of Texas Access Reform ("STAR") Medicaid program and the Children's Health Insurance

Program ("CHIP," and together with STAR, "STAR & CHIP").

5. Plaintiffs allege that Defendant administered the RFP in a manner that violates

Texas law and that, consequently, any award, execution, or implementation of the intended ST AR

& CHIP managed care contracts that Defendant announced on March 7, 2024, will constitute ultra

vires acts.

6. Plaintiffs have established a cause of action against Defendant and a probable right

lief sought on their claims that Defendant has violated and, unless enjoined, will continue

tatutory and regulatory requirements applicable to the RFP.

Page 2 of 10

Page 5876 7. Specifically, Plaintiffs have established that Defendant has violated and will

continue to violate the Texas Government Code, Texas Health and Safety Code, and Texas

Administrative Code in procuring managed care contracts for STAR & CHIP in Texas, and that

any award, execution, or implementation of Defendant's intended contract awards would be

unlawful, because:

• Defendant's intended contract awards will fail to give preference to managed care organizations ("MCOs") that have significant participation in their provider networks from each healthcare provider in the region who has traditionally provided care to Medicaid and charity care patients as required by Texas Government Code§ 533.003(a)(l );

• Defendant's intended contract awards will fail to give preference to MCOs that have successfully implemented quality initiatives as required by Texas Government Code§ 536.052(a) and (d);

• Defendant has failed to develop and implement the cost-efficiency and quality of care benchmarks mandated by Texas Government Code § 536.052(b) despite being subject to an obligation to do so for over a decade. Defendant's intended contract awards will likewise fail to give preference to MCOs that have met such benchmarks as required by Texas Government Code§ 536.052(d);

• Defendant's intended contract awards will fail to consider MCOs' past performances as required by Texas Government Code§ 2155.144;

• Defendant's intended contract awards will fail to evaluate and certify that MCOs are reasonably able to fulfill the terms of the STAR contract as required by Texas Government Code§ 533.0035 and to review MCOs to confirm their ability to fulfill the requirements of the CHIP contract as required by Texas Health & Safety Code § 62.05 l(e);

• In August 2023 and again in October 2023, Defendant wrongfully disclosed the RFP proposals of Plaintiffs and other respondents-with the August disclosure recipients including legal counsel for Aetna, one of the competing respondents, while the procurement was ongoing and prior to completion of the oral presentations-thus, destroying any integrity of the procurement process and creating an unlevel playing field that cannot ensure fair consideration of all proposals and is far from consistent, uniform, and transparent as required by I Texas Administrative Code§§ 391.10 I and 391.209;

Defendant's intended contract awards will fail to implement the Medicaid managed care program in a manner that improves the health of Texans by promoting

Page 3 of 10

Page 5877 continuity of care and provides a medical home for recipients as required by Texas Government Code§ 533.002;

• Defendant's intended contract awards will fail to reduce administrative and other nonfinancial barriers for recipients as required by Texas Government Code § 533.002;

• Defendant's intended contract awards will fail to consider the need to use different managed care plans to meet the needs of different populations as required by Texas Government Code§ 533.003(a)(3);

• Defendant's intended contract awards will unlawfully award mandatory CHIP contracts to MCOs to which Defendant intends to award mandatory STAR contracts in violation of Texas Health and Safety Code§§ 62.055 and 62.155;

• Defendant's intended award of mandatory CHIP contracts will fail to give consideration to statutorily required factors, including those under Texas Government Code § 533.003, in violation of Texas Government Code § 533.004(a);

• Defendant's continuing practice of denying relevant information about a procurement to bidders until after the deadline to submit a bid protest violates the Due Course of Law provision of Article I, Section 13 of the Texas Constitution by not providing a meaningful bid protest process after promising one in I Texas Administrative Code Chapter 391; and

• Defendant's continuing practice of refusing to consider as untimely any information submitted in supplemental protests and/or after the protest filing deadline is inconsistent with the procedural protections promised to protestants in bid protest rules that require consideration of a protest or appeal submitted after the filing deadline when good cause for delay is shown under I Texas Administrative Code§ 39l.307(d)(I).

8. These statutory and regulatory violations, each singly and together collectively,

have resulted in intended contract awards that will be invalid and unlawful, and the further

execution and implementation of such intended contract awards will be ultra vires acts.

9. Furthermore, Defendant is currently evaluating bids for ST AR Kids, a separate

Texas Medicaid managed care program, through Request for Proposals No. HHS00 13071 (the

ids RFP"). The procurement processes in the STAR & CHIP RFP and the STAR Kids

1bstantively identical. Plaintiffs have demonstrated that Defendant has no intention of

Page 4 of 10

Page 5878 voluntarily correcting her course of action for future procurements, including altering the processes

and procedures used in administering the STAR Kids RFP. The resulting STAR Kids contract

awards will therefore also violate statutory and regulatory requirements and be ultra vires.

10. Plaintiffs have established a probable right to relief and that Defendant's award,

execution, and implementation of the intended, unlawfully procured STAR & CHIP contracts will,

if not enjoined, cause Plaintiffs to suffer imminent and irreparable injury.

I I. Cook Children's has established that execution and implementation of the contracts

would result in irreparable harm to Cook Children's because:

• The loss of STAR & CHIP contracts threatens Cook Children's financial viability and might lead to the forced wind-down of the entity;

• Cook Children's participation in the STAR Kids program is in jeopardy because the larger STAR & CHIP contracts provide economies of scale to limit losses from STAR Kids;

• Cook Children's I 00,000-plus STAR & CHIP members will be forced to change to different health plans from different companies, risking disruption to the members' healthcare and their access to their current primary care providers, specialty care providers, or both;

• Cook Children's has suffered immediate operational disruptions, including hiring difficulties and the delay of needed internal projects;

• Cook Children's can no longer negotiate a new pharmacy benefits contract alongside other Texas-only Medicaid plans and consequently will need to pay more for pharmaceuticals;

• Cook Children's 375 employees are at risk of losing their jobs-both the 70% of employees who focus on STAR & CHIP and the 30% who focus on STAR Kids; and

• ew STAR & CHIP entrants in the Tarrant Service Area will likely poach Cook Children's experienced employees before the new contracts go into effect-thus threatening Cook Children's STAR & CHIP operations while it is still required to provide services under its current contracts.

TCHP has established that execution and implementation of the contracts would

eparable harm to TCHP because:

Page 5 of 10

Page 5879 • TCHP's 425,000 STAR & CHIP members will be forced to change their health plans, impacting their access to care;

• TCHP has suffered and will continue to suffer disruptions in workforce- threatening the future viability of the health plan-as employees voice concern about job security in light of the intended contract awards;

• TCHP's 650 employees are at risk of losing their jobs, impacting the financial health of its entire Texas Children's Health Care System beyond that of the health plan;

• TCHP has already suffered and will continue to suffer the poaching of its well- trained employees by other MCOs-further endangering its operations while it remains under contract with HHSC;

• TCHP will lose members and providers, further threatening the viability of the health plan and confusing members and providers;

• TCHP has and will suffer damage to its reputation and goodwill; and

• TCHP's participation in the ST AR Kids program is at risk because the larger ST AR & CHIP contracts are needed to provide economies of scale to limit losses from STAR Kids. If TCHP loses its STAR Kids contract, its 26,000 STAR Kids members would need to change their health plans, thereby adversely impacting those members' access to care, adversely impacting TCHP's workforce, adversely impacting TCHP's ability to operate and damaging TCHP's reputation and goodwill.

13. Superior has established that execution and implementation of the contracts would

result in irreparable harm to Superior because:

• Superior will experience a reduction in the number of STAR & CHIP members it serves today, forcing members to change plans even before the operational start date of the new contracts;

• Superior will need to begin reducing its workforce just as new MCO entrants and MCOs expanding their membership will seek to poach Superior's employees, who are already grappling with the uncertainty of their jobs in light of the intended awards;

• Providers will be less likely to contract with Superior as contract renewals are being negotiated over the next few months and Superior's leverage in provider contract negotiations will be substantially diminished;

Superior has made substantial investments in partnerships that promote HJ-ISC's value-based care priorities. These partnerships involve risk-sharing agreements

Page 6 of 10

Page 5880 between Superior and the partner entities and have been built to scale over time. Superior will lose the benefit of its initial investments in these partnerships; and

• Superior's ability to provide the same level of service currently provided under existing STAR & CH IP contracts through the August 31, 2025, expiration date will be diminished due to workforce challenges that would be caused by execution of the STAR & CHIP contracts, which will impact Superior's operations and cause it to suffer reputational damage.

14. Wellpoint has established that execution and implementation of the contracts would

result in irreparable harm to Wellpoint because:

• Almost 380,000 current Wellpoint members will be forced to change their health plan, thus losing access to their existing Wellpoint provider network;

• Wellpoint will be forced to consider substantial reductions in and/or relocations of its existing 1,200-plus-person workforce dedicated to the Texas Medicaid programs;

• Wellpoint has already suffered and will continue to suffer the poaching of its highly trained employees by other MCOs. During the review and transition period, which HHSC has stated will take at least a full year, Wellpoint must continue to provide uninterrupted healthcare to its members, and its ability to do so will be substantially jeopardized if there are key staff vacancies;

• Wellpoint has already suffered and will continue to suffer difficulty retaining its existing, robust provider network in the impacted service areas. Maintaining its network of healthcare providers is critical to Well point's commitment to providing high-quality, cost-efficient healthcare for the entire duration of its existing contracts. Worse yet, Wellpoint has learned that some providers are informing members that Wellpoint will no longer be providing STAR & CHIP services in impacted areas and are encouraging them to switch plans on the basis of Defendant's intended contract awards;

• Wellpoint has made significant investments in service areas that it will be forced to exit and has longstanding provider partnerships with alternative payment models that were developed and built to scale over multiple years. Wellpoint will lose the benefit of its investments in those service areas and partnerships.

• There is no legal remedy that can fully compensate Wellpoint for (I) the loss of its members, (2) the harm to its business resulting from the intended, unlawfully procured contract awards, and (3) the harm to its ability to compete in a fair and lawful procurement process in future procurements; and

The harm to Wellpoint is imminent because Defendant did not follow the requirements of Texas law in procuring the STAR & CHIP contracts but

Page 7 of 10

Page 5881 nevertheless intends to execute and begin implementing the intended, unlawfully procured contract awards. In addition, the harm to Wellpoint is imminent as Defendant does not intend to correct her unlawful course of action for future procurements or the ongoing STAR Kids RFP.

15. Plaintiffs have also presented evidence that they will begin losing STAR & CHIP

members now, even though operations under the intended STAR & CHIP contract awards are not

scheduled to start until September I, 2025. Providers are already informing Plaintiffs' members

that Plaintiffs will no longer be providing STAR & CHIP services in certain service areas of the

state and are encouraging members to switch plans. The confusion among providers and members

alike will only worsen if the intended contract awards are executed notwithstanding the pending

challenge to their legality.

16. Money damages are not adequate compensation because the harms Plaintiffs will

suffer cannot be measured by any certain pecuniary standard. Furthermore, Plaintiffs cannot be

adequately compensated in damages because Defendant is immune from suit for damages and any

limited waiver of immunity is insufficient to compensate for Plaintiffs' harms.

17. The harms to Plaintiffs outweigh any potential harms to Defendant or HHSC that

would result from preserving the status quo during the pendency of these consolidated cases.

Neither Defendant nor HHSC would be harmed if the execution and further implementation of the

intended ST AR & CHIP contracts are delayed given that (I) operations under the intended contract

awards are not scheduled to start until September I, 2025, and (2) HHSC has previously delayed

the RFP several times and was able to continue providing coverage through the current ST AR &

CHIP contracts by extending the contracts in effect at the time.

18. The public will not suffer harm if a temporary injunction is granted but will suffer

fendant executes and implements the intended, unlawfully procured contract awards.

d contract awards will impose significant harm and confusion on millions of Texas's

Page8ofl0

Page 5882 STAR & CHIP members. More than 1.5 million Texans, mostly children-and 43% of the total

STAR & CHIP population-will be forced to change health plans. This in turn would cause

significant harms to those beneficiaries, for which there is no adequate remedy at law available

against Defendant, including:

• Confusion among those beneficiaries due to difficulties in informing them of the change in available health plans;

• Disruption to those beneficiaries' access to care and continuity of care, thereby threatening the medical care and the very health and welfare of those beneficiaries; and

• Administrative burdens of finding new health plans and potentially new healthcare providers.

19. The injunctive relief Plaintiffs request is narrow in scope and tailored to prohibit

Defendant from continuing to act ultra vires. The balance of equities and public interest weigh in

favor of granting Plaintiffs' requested injunctive relief.

Accordingly, it is therefore ORDERED that Defendant's Plea to the Jurisdiction is

DENIED.

It is further ORDERED that Plaintiffs' Applications for Temporary Injunction are

GRA TED. The Court ORDERS that:

• Defendant, and all other persons or entities in active concert or participation with Defendant, shall refrain from awarding, signing, entering into, executing, implementing, or otherwise taking action to effectuate or perform any contracts resulting from or in connection with the STAR & CHIP RFP or to further the procurement or contracting processes for the STAR & CHIP RFP; and

• Defendant, and all other persons or entities in active concert or participation with Defendant, shall refrain from further proceeding with the procurement of, issuing a notice of intent to award or awarding contracts under, or otherwise implementing results from the STAR Kids RFP.

Page9ofl0

Page 5883 IT IS FURTHER ORDERED that Defendant shall provide notice of this Temporary

Injunction to her officers, agents, servants, employees, and attorneys, as well as any persons or

entities in active concert or participation with Defendant.

IT IS FURTHER ORDERED that Plaintiffs' bond or cash deposit in lieu of bond is set in

the amount of $1,000.

IT IS FURTHER ORDERED that, on the tiling by Plaintiffs of the bond and on approving

the bond according to law (or the cash deposit in lieu of bond), the Clerk shall issue a Temporary

Injunction in conformity with the law and the terms of this order.

IT IS FURTHER ORDERED that this Temporary Injunction shall not expire until final

judgment in this case is entered or this case is otherwise dismissed by this Court.

IT IS FURTHER ORDERED that the trial on Plaintiffs' ultra vires claims seeking

declaratory relief, permanent injunctive relief, and mandamus relief is set for ovember 3, 2025.

SIG ED on Oc.to\oft tf , 2024.

~c::::4( JUDGE PRESIDI G

Judge LaurieEiserloh 455thDistrict Court

I, VELVA L PRICE, District Clerk, Travis County, Texas, do hereby certify that this is a true and correct copy as same appears of record in my office. Witness my hand and seal of office On ___ 11/01/2024r--------,,--- 09:28:21

~ ~ ~/ifk✓2=i-~ r,~· '••~ "!~ \:,~~ J VELVA L. PRICE 0 l'ti•• DISTRICT CLERK

1693 ms 1 ~ Deputy::) H Page 10 of 10

Page 5884 Ex. B The foHo\\i·ing is an Agreement executed by and among the undersigned part.ies in connection \Vith the interlocutory appeal fi led by Cecile Ymmg, in her official capaci ty as Executive Commissioner of the Texas Health & Human Services Commission (''Defendant") in the Fifteen th Court of Appeals as Cause No. 15-24-001 14-CV (the "Appeal") from Travis County Cause No. D-l-GN- 24-003839. consolidated \Vlth Travis County Cause Nos. D- l-GN-24-003874, D-1-GN-24- 004059, and D-i-GN-24-004327 (the "Consolidated Lawsuit''). This Agreement is effective upon execution by counsel for the following: Defendant; Cook Children' s ffoalth Plan; Texas Children' s Health Plan; Superior Hca!thPlan, Inc .; and Wellpoint lnsumnce Company (collectively, the " Panies").

Through the ,.\pp~al, Defendant seeks review of rhe trial court' s October 4 , 2024, order denying her Plea to the Jurisdicticm and granting Plaintiffs' r>.fotio ns for a Temporary Injunction (the ·'Temporary Injunction On.kr"). Now the Parties agree as follows:

J. The Parties shall file a Joint ~1otion to Abate in the Appeal. In it, the Panics will ask the appellate court to abate the Appeal until 30 days after the end of the 89th Regular Session of the Texas Legislature. A copy of this Agreement will be attached as an exhib it to the Joint !\fotion to Abate.

2. Notwithstanding any superscdeas rights. Defendant, the Texas Health & Human Services Commission, and all employees and agents of the Texas Health & Human Services Commission (co llect ively, "HHSC") will comply with the tenns of the Temporary Inj unction Order until the latest of (a) 30 days after the end of the 89th Regular Session of the Texns Legislature , regardless of the appellate court' s ruling on the Joint Motion to Abate: (b) a ruling from the appellate court on any request for temporary orders under TRAP 29.3 filed within seven days of the Appeal' s reinstatement: or (c) disposition of any mandamus proceeding in the Texas Supreme Court reviewing a ruling on a request described in (b) above. provided that the proceedi ng is fi led within seven days of such ruling .

.L HHSC may complete the consensus scoring on the written proposals in RFP No. HHSOO13 07 I (the ··STAR Kid s RFP''), provided HHSC takes no other action -with respect to the STAR Kids RFP .

4. Sh<>u!d the Consolidated Lawsu.it rcttim to the trial court before the end of the 89th Regular Session ofthc Texas Legislature, the Parties agree w file a Joi nt Motion to Abate in the Consolidated Lav.:suit, asking those proceedings be abated unti l 30 days after the end of the 89th Regular Session of lhe Texas J.egis!ature.

5, Additionally, the Parties agree to file a Joint l\'1otion lO Abate in each of the P!A lawsuits fikd as Cause ?-,:os. D- ! -GN -24 -003564, D- l-GN-24-002509, and D- 1• G!\'-24-002569, which the Parties agree shall stay abated until at least thirty days after the end of the 89th Regular Session of the Texas Legislature,

6. The Parties agree that thi s Agreerne.nt \vill apply to any successor to Defendant. 7. In the event that the Appeal is successful and all claims in the Consolidated Lawsuit are dismissed, following exhaustion of all appellate proceedings, then this Agreement shall be deemed terminated and no Party is bound by its tenns.

Matthew Gordon, Co unsel for Cook Childre·n-;-;-Health Plan

_ J /_ ~· - ; • . . ' '\ -· --.--·--··· -- ·- Meghan MtCaig. Co unsel for ~upciior HealthPlan, Inc. ,' ~ /

\~ P • I Trah • • Children's Health Plan

_#

Wellpo ra ce Company

-----(_q__/1.ti/ z;z.tf sel for Cecile E. Young, in her Official Capacity as Executive SC

-2- Automated Certificate of eService This automated certificate of service was created by the efiling system. The filer served this document via email generated by the efiling system on the date and to the persons listed below. The rules governing certificates of service have not changed. Filers must still provide a certificate of service that complies with all applicable rules.

Richard Phillips on behalf of Richard Phillips Jr. Bar No. 24032833 Rich.Phillips@hklaw.com Envelope ID: 102998328 Filing Code Description: Motion Filing Description: Superior HealthPlan, Inc.'s Motion for Temporary Relief Under Rule 29.3 Status as of 7/10/2025 4:52 PM CST

Case Contacts

Name BarNumber Email TimestampSubmitted Status

Michaelle Peters mpeters@scottdoug.com 7/10/2025 4:41:43 PM SENT

Julie Wright julie.wright@nortonrosefulbright.com 7/10/2025 4:41:43 PM SENT

Amanda DoddsPrice amanda.price@squirepb.com 7/10/2025 4:41:43 PM SENT

Karen Burgess 796276 kburgess@burgesslawpc.com 7/10/2025 4:41:43 PM SENT

Robert Johnson 10786400 rjohnson@foley.com 7/10/2025 4:41:43 PM SENT

Richard Phillips 24032833 Rich.Phillips@hklaw.com 7/10/2025 4:41:43 PM SENT

J McCaig 24070083 meghan.mccaig@outlook.com 7/10/2025 4:41:43 PM SENT

Michelle Ku 24071452 mku@foley.com 7/10/2025 4:41:43 PM SENT

Joseph Knight 11601275 jknight@ebbklaw.com 7/10/2025 4:41:43 PM SENT

Amy Warr 795708 awarr@adjtlaw.com 7/10/2025 4:41:43 PM SENT

Warren Huang 796788 warren.huang@nortonrosefulbright.com 7/10/2025 4:41:43 PM SENT

Paul Trahan 24003075 paul.trahan@nortonrosefulbright.com 7/10/2025 4:41:43 PM SENT

Susan Harris 6876980 susan.harris@nortonrosefulbright.com 7/10/2025 4:41:43 PM SENT

Anna Baker 791362 abaker@adjtlaw.com 7/10/2025 4:41:43 PM SENT

Cheryl LaFond 24104015 clafond@scottdoug.com 7/10/2025 4:41:43 PM SENT

Maria Williamson maria.williamson@oag.texas.gov 7/10/2025 4:41:43 PM SENT

Mandy Patterson mpatterson@adjtlaw.com 7/10/2025 4:41:43 PM SENT

Michelle Joyner mjoyner@scottdoug.com 7/10/2025 4:41:43 PM SENT

William FCole William.Cole@oag.texas.gov 7/10/2025 4:41:43 PM SENT

Abril Rivera arivera@scottdoug.com 7/10/2025 4:41:43 PM SENT

Nancy Villarreal nancy.villarreal@oag.texas.gov 7/10/2025 4:41:43 PM SENT

Kristin Hernandez kristin.hernandez@foley.com 7/10/2025 4:41:43 PM SENT Automated Certificate of eService This automated certificate of service was created by the efiling system. The filer served this document via email generated by the efiling system on the date and to the persons listed below. The rules governing certificates of service have not changed. Filers must still provide a certificate of service that complies with all applicable rules.

Richard Phillips on behalf of Richard Phillips Jr. Bar No. 24032833 Rich.Phillips@hklaw.com Envelope ID: 102998328 Filing Code Description: Motion Filing Description: Superior HealthPlan, Inc.'s Motion for Temporary Relief Under Rule 29.3 Status as of 7/10/2025 4:52 PM CST

Case Contacts

Kristin Hernandez kristin.hernandez@foley.com 7/10/2025 4:41:43 PM SENT

Thomas Coulter 4885500 tom.coulter@nortonrosefulbright.com 7/10/2025 4:41:43 PM SENT

Victoria Gomez victoria.gomez@oag.texas.gov 7/10/2025 4:41:43 PM SENT

Jessie Johnson jessie.johnson@nortonrosefulbright.com 7/10/2025 4:41:43 PM SENT

Benjamin Grossman bjgrossman@foley.com 7/10/2025 4:41:43 PM SENT

Cory Scanlon cory.scanlon@oag.texas.gov 7/10/2025 4:41:43 PM SENT

Katie Dolan-Galaviz kgalaviz@burgesslawpc.com 7/10/2025 4:41:43 PM SENT

David Johns david@cobbjohns.com 7/10/2025 4:41:43 PM SENT

Jennifer Cook Jennifer.Cook@oag.texas.gov 7/10/2025 4:41:43 PM SENT

Juliana Bennington jbennington@perkinscoie.com 7/10/2025 4:41:43 PM SENT

Jonathan Hawley jhawley@perkinscoie.com 7/10/2025 4:41:43 PM ERROR

Reina A.Almon-Griffin ralmon-Griffin@perkinscoie.com 7/10/2025 4:41:43 PM SENT

Trisha Marino tmarino@perkinscoie.com 7/10/2025 4:41:43 PM SENT

Perkins Docketing Team DocketSEA@perkinscoie.com 7/10/2025 4:41:43 PM SENT

Karen Walker karen.walker@hklaw.com 7/10/2025 4:41:43 PM SENT

Tiffany Roddenberry tiffany.roddenberry@hklaw.com 7/10/2025 4:41:43 PM SENT

Stacey Obenhaus sobenhaus@foley.com 7/10/2025 4:41:43 PM SENT

Jason R.LaFond jlafond@scottdoug.com 7/10/2025 4:41:43 PM SENT

Matthew Gordon mgordon@perkinscoie.com 7/10/2025 4:41:43 PM SENT

Stacey Jett sjett@adjltaw.com 7/10/2025 4:41:43 PM SENT