PL-14_FREW 2025 HHSC Vendor Retention Memo.pdf

P.O. Box 13247 • Austin, Texas 78711-3247 • 512-424-6500 • hhs.texas.gov

CONFIDENTIAL AND PRIVILEGED

Vendor Guidance Document:

Frew, et al. v. Young, et al. Litigation Hold

Vendor Document Retention Obligations

Purpose

To serve as a reminder of document retention obligations required of you and/or your company/agency, as a vendor contracted with the Texas Health and Human Services Commission

(HHSC) and/or the Texas Department of State Health Services (DSHS). These obligations extend to all of your company’s/agency’s employees, independent contractors, and subcontractors who fulfill the company’s/agency’s contractual obligations to HHSC and/or DSHS.

Background

Carla Frew, et al. v. Cecile Young, et al. (“Frew”) is a class action lawsuit filed in 1993 against the predecessor agencies of HHSC and DSHS. Filed on behalf of children ages birth through 20 who are eligible for Medicaid, the suit alleged that the Texas Medicaid program did not meet federal requirements for the EPSDT program (Texas Health Steps). HHSC and DSHS agreed to be bound by a 1996 consent decree and 11 Corrective Action Orders entered in 2007 (together, “the orders”). Together, these orders require certain actions and dictate many aspects of how the

Texas Health Steps program is to be implemented. The agencies’ compliance with these orders is still monitored by a federal district court. Failure to comply with the requirements of the orders would put HHSC, DSHS, and their Commissioners at legal risk.

Document Retention

Vendors/consultants/agencies working on Frew-related matters must retain all information and documents that may be relevant to the lawsuit. Your company/agency is contractually bound by these requirements. Potentially relevant information and documents must not be destroyed as long as the lawsuit is still pending.

Definition of “Relevant”

Any information or document that was in the possession of the vendor any time between the date the lawsuit was filed in 1993 through the present may be relevant if it relates to:

• Texas Health Steps program, including claims, policy, and/or benefits;

• The allegations in the lawsuit;

• Medicaid services or benefits provided to persons under age 21;

• Texas Health Steps providers;

• Actions taken to comply with the consent decree or the corrective action orders;

• Texas Health Steps claims and eligibility information;

• Frew Strategic Initiatives; and

• Communications relating to the lawsuit and its effect upon program decisions.

Categories of Documents and Information to Retain

The term “document” is broad and includes, but is not limited to, the following:

• Paper records;

• Electronic files in any format;

• Database entries;

• The original and any drafts or non-identical copies of any document;

• Exhibits or attachments to documents;

• Handwritten documents;

• Emails;

• Drawings, graphs, charts;

• Electronic or videotape recordings (including voicemails);

• Computer disks;

• Other forms of computer memory storage; and

• Text messages.

Copies of Documents

You are not required to retain multiple exact copies of a document. However, a document containing any substantive edits, including editorial comment, margin notes, underlining, etc., is not an exact copy and becomes a new original that must be retained.

Types and Locations of Information to Preserve

Please note that relevant information may be in the form of paper documents or electronic files.

Electronically stored information may exist in many locations, including:

• Hard drives of electronic devices, such as desktop or laptop hard drives;

• Cell phones, tablets, personal digital assistants (PDAs), cameras, and other devices;

• External or portable file storage media, such as CDs, DVDs, portable flash drives/memory sticks, picture or video cards, and external hard drives;

• Text messages and voicemails;

• Instant messages or chat messages;

• Video or voice recordings;

• Company servers (shared drives, file shares, email servers, databases, etc.); and

• Cloud storage and backups of personal or work devices.

Document Storage

Relevant information and documents should be stored in a way that is protected from unintentional disclosure or destruction.

Err on the Side of Preservation

If you have any doubt about whether information you possess is within the scope of this document, you must preserve and retain the information. We encourage you to contact one of the HHSC Frew attorneys (listed below) if you have questions about what information you must retain or how to ensure that it is preserved.

Inquiries

If you have any questions regarding this guidance, please contact one of the HHSC Legal Services

Division Frew attorneys: HHSC Associate Director of Litigation Lori Erwin, lori.erwin@hhs.texas.gov; Staff Counsel Jenyfer Garcia, jenyfer.garcia@hhs.texas.gov .

mailto:lori.erwin@hhs.texas.gov mailto:jenna.malsbary02@hhs.texas.gov