Untitled Texas Attorney General Opinion ( 1991 )

Office of the Attorney General
State of Texas
A'I'TCRNEY GEN'ER.AL
Septernber 9, 1991
Honorable Ioe Lucas Opinion No. DM-37
County Attorney
El Paso County Re: Whether a hospital district may
Room 201, City-County Building eliminate dental health clinic services it
El Paso, Texas 79901 currently provides, and if so, whether the
district remains financially responsible for
providing such services to indigent resi-
dents of the hospital district (RQ-88)
Dear Mr. Lucas:
You have asked two questions regarding the duty of the .El Paso County
‘Hospital District (the "Hospital District") to provide dental services to indigent
residents of the Hospital District: (1) Can the Hospital District eliminate the dental
clinic that it currently operates, and (2) If the Hospital District eliminates the dental
clinic, will it nonetheless remain financially responsible for dental services rendered
by other health care providers to indigent residents of the Hospital District?
We have been informed that the Hospital District is a county-wide hospital
district created pursuant to article IX, section 4, of the Texas Constitution and
chapter 281 of the Texas Health and Safety Code (formerly article 449411, V.T.C.S.).
The Hospital District operates the R.E. Thomason General Hospital (the
"Hospital"). The Hospital District currently employs a full-time dentist, a part-time
dentist and several dental assistants who perform, in your words, "urgent and
emergent" dental care in a clinic adjacent to the Hospital._ Although you do not
describe these services in any greater detail, you have informed us that the dental
clinic does not provide such services as routine fillings, check-ups, orthodontic work,
or cosmetic dentistry. Approximately half of the patients who receive these dental
services are indigent adults and children. The Hospital District has operated the
dental services clinic for approximately ten years, but now intends to close it due to
budgetary constraintsl
The answer to your first question is straightforward A hospital district’s
authority and duties are found in the Texas Constitution, the hospital district’s
p. 181
Honorable Joe Lucas - Page 2 (DM-37)
enabling statute, and provisions of the Health and Safety Code pertaining to
hospital districts generally. See generally Health & Safety Code ch. 285; Attorney
General Opinion JM-816 (1987) at 2. Section 285.051(a) of the Health and Safety
Code (formerly article 4437c-2, V.T.C.S.) specifically authorizes the governing body
of a hospital district to order by resolution the closing of all or part of a hospital
provided that it finds that the closing is in the best interest of the residents of the
hospital district Section 285.051(b) and section 285.052 provide that the governing
body of a hospital district must conduct an election on the closing of a hospital if
petitioned to do so by ten percent of the qualified voters of the hospital districtl
Plainly, these statutory provisions authorize the governing body of the Hospital
District to adopt a resolution ordering the closing of the dental clinic if it finds that
' the closing is in the best interest of the residents of the Hospital District
Your second question, however, is more difficult As you note, the closure of
a hospital under the authority of section 285.051 does not relieve a hospital district
from liability for paying for health care services for its indigent residents See
Attorney General Opinion JM-864 (1988). In essence, your second query is whether
the Texas Constitution or applicable statutes require the Hospital District to
provide "urgent and emergent'-' dental services to indigent residents and impose a
continuing obligation to pay for such services in the event the Hospital District
discontinues providing them directly.2
Neither the constitution nor the applicable enabling statute specilically
dennes the services the Hospital District is required to provide to indigent residents.
Article lX, section 4, of the Texas Constitution provides in pertinent part:
15¢¢ fackrort C Hosp. D¢'.rt. v. lackron C':tizen_r or Continued Hosp. Cane, 669
amy
S.W.Zd 147 (Tex. App.-Corpus Christi 1984, no writ); see also Attorney Geoeral Opinioo JM-864
(1988).
2Appart:ntly, the governing board of the Hospital District made the determination at some
point in the past that the Hospital District is mthon'zed by the constitution to provide ‘nrgent and
emergent' dental services. Scc Attorney General Opinion H-3I (1973) (stating that hospital district
organized under article lX, section 4, may engage only in 'medical and hospital care" as authorized by
the constitution and holding that hospital district not authorized to perform restaurant, meat, milk,
scwage, or water inspections). We assume for purposes of this opinion that the unspecified 'urgent and
cmergent' dental services provided by the dental clinic fall within the definition of constitutionally
authorized °‘medical and hospital care." _
p. 182
Honorable Joe Lucas - Page 3 (DM-37)
The legislature may by law authorize the creation of
county-wide Hospital Districts in counties having a population in
excess of 190,000 . . . with power to issue bonds for the purchase,
acquisition, construction maintenance and operation of any
county owned hospital . . . provided further, that such Hospital
District shall assume full responsibility for providing medical and
hospital cane to needy inhabitants of the county. (Emphasis
addedJ
In 1985, the voters passed a constitutional amendment article IX, section 9A,
which provides that the legislature
by law may determine the health care services a hospital district is
required to provide, the requirements a resident must meet to
qualify for services, and any other relevant provisions necessary
to regulate the provision of health care to residents (Emphasis
added.)_
To date, however, the legislature has not used this authority to adopt legislation
determining the health care services a hospital district is required to provide. See
Attorney General Opinion JM- 1052 (1989).
like the constitution, the existing statutory scheme does not define the
services that a hospital district is required to provide to indigent residents. Chapter
281 of the Texas Health and Safety Code, the applicable enabling statute,
specifically authorizes counties with at'least 190,000 inhabitants to create county-
wide hospital districts "to furnish medical aid and hospital cme to indigent and
needy persons residing in the district,” Health & Safety Code §281.002, but does
not define "medienl aid and hospital care." Section 281.046 of the enabling statute,
which requires such' hospital districts t_o assume full responsibility for furnishing
"tnedical and hospital care" for indigent and needy persons residing in the district as
of the date on which taxes are collected, is similarly silent. Nor has the legislature
given any guidance elsewhere pertaining to the services hospital districts are
required to provide. `
p. 133
Honorable Joe Lums - Page 4 tmi-37 )
You appear to contend that because regulations3 promulgated pursuant to
the Indigent Health Care and Treatment Act4 provide that counties are not
generally required to provide dental care and because the 'I`exas Oral Health
lmprovement Act5 authorizes the Texas Department of Health to provide certain
dental services to indigents, the legislature has implicitly recognized that all dental
care is not "medical and hospital eare." On this basis, you conclude that "urgent and
emergent" dental we is not a service that hospital districts are required to provide.
We are not persuaded, however, that this is necessarily the case for several reasons.
First, even assuming that the Indigent Health Care and Treatment Act excludes all
dental care from coverage, nowhere has the legislature indicated that the
responsibilities of hospital districts and counties for indigent health care are
identical in all respects. We believe that the Indigent Health Care and Treatrnent
Act cannot necessarily be interpreted to define indirectly the services hospital
districts are required to provide. Indeed, the Indigent Health Care and 'I`reatment
Act expressly acknowledges that the duties of hospital districts are separately
detined, stating that "[a] hospital district shall provide the health care services
required under the Texas Constitution and the stantte creating the district." Health &
Safety Code § 61.055 (emphasis added).‘
Furthermore, we cannot accept without question your assumption that the
Indigent Health Care and Treatrnent Act excludes all dental care, including "urgent
and emergent" dental care, from coverage. The applicable regulations promulgated
under the Indigent Health Care and Treatment Act provide that dental care is
excluded from coverage "unless the service is covered as a physician service when
provided by a licensed physician, and the dentist . . . can provide the service within
the scope of his license." 40 T.A.C. § 14.202(d)(7). With no specific information
about the "urgent and emergent" dental care the Hospital provides, we cannot
exclude the possibility that at least some of these services are covered under the
foregoing regulations Thus, we cannot concur in your assumption that such services
35¢¢ 40 rAc. §§ 14202(:1)(7), 14.203(¢)(2)(13).
"H¢alth & safety code ca 61 (form¢rly article 4433£, v.r.cs.).
Snealai & safety Code ca 43 (rom¢rty article 4418,;-2, v.r.c.s.).
58¢¢ also Attorney Generai Opinioos IM-953 (1988) at 3 n.1 ("The Indigent Health Care and
Treatmcnt Act does not affect the obligations of hospital districts."); JM-?ZZ (1987) at 3 ("The Indigent
Health Care Act does not alter, or attempt to altcr, the responsibility of a hospital district for all health
care required by" the Texas Constitution and enabling statute.).
p. 184
Honorable Joe Lueas - Page 5 (DM- 3 7)
are not covered under the Indigent Health Care and Treatment Act or your
conclusion that therefore the dental services currently provided by the Hospital
District are not constitutionally or statutorily required services
ln the absence of express guidance in the Texas Constitution or statutes, and
in light of article IX, section 9A, which reserves to the legislature the as_ of yet
unexercised authority to adopt legislation determining the health care services that
hospital districts are required to provide, this office has repeatedly refrained from _
defining "health care services" or "medical and hospital care" with greater specificity,
observing that
[i]n regard to medical care for the needy, it is the responsibility
of the board of directors of a hospital district to determine what
medical care is to be provided.
Attorney General Opinion JM-1052 at 4;" see also Attorney General Opinions
M-1154 (1972); M-SS (1967); Attorney General better Opinion 1088-33 (1988).
See generally Attorney General Opinion JM-816 at 3. Certainly, the Texas Constitu-
tion and statutory'law require hospital districts to provide at least essential medical
services to their indigent residents Whether a hospital district must provide a
speciEc service, however, is a matter that the legislature has chosen by default to
leave to the governing body of a hospital district. We are unable to determine
which, if any, of the services the dental clinic has provided are services that the
Hospital District has a constitutional or statutory obligation to provide. Therefore,
we do not reach the question whether the Hospital District is required to provide
"urgent and emergent" dental services to its indigent residents and would be legally
responsible to pay for such services if it does not provide them directly.
S_U_M_MA_R_Y
The El Paso County Hospital District is statutorily
authorized by Health and Safety Code sections 285.051 and
285.052 to close its dental clinic. This office cannot opine on
7Attorney General Opinion JM-IOS?. addressed language in article IX, section 9, of the Texas
Constitution which provides that hospital districts established pursuant to its provisions "shall assume
full responsibility for providing medical and hospital care for its needy inhabitants.' This language is
almost identical to the parallel language in article IX, sedion 4, applicable to the Hospital District at
issue here.
p. 185
Honorable Joe Lucas - Page 6 (DM-B'?)
whether the Hospital District is constitutionally or statutorily
required to provide "urgent and emergent” dental services to
indigent residents and is required to pay for such services if it
does not provide them directly.
Verytmlyyours, _ 6
BQ~. M\/"i §
D A N M 0 R A L E S
Attorney General of Texas
WILL PRYOR
First Assistant Attorney General
MARY KELLER
Executive Assistant Attorney General
JUDGE ZOLLIE STEAKLEY (Ret.)
Special Assistant Attorney General
RENEA HICKS
Special Assistant Attorney General
MADELEINE B. JOHNSON
Chair, Opinion Committee
Prepared by Mary R. Crouter
Assistant Attorney General
p. 186