THE ATTORNEY GENERAL OF TEXAS September 7, 1989

JlXMxl"roX .%lTo*SEYG&SERAL. Honorable John Owens Henderson County Attorney Courthouse Athens, Texas 75751 OpinionNo. JR-1094
Re: Whether a countymay recover expenses incurredunder the Indigent Health Care Act (RQ-1522)
DearMr. Owens:
You ask about the authority of a county to seek reimbursement formoney ithas spentpursuant to the provisions of the Indigent Health Care and Treatment Act, article 44381,V.T.C.S. You explain that Henderson County has spent a large sum of money formedical treatment for a particular individual. The individualhas now filed a personal injury action against a private individual,and you ask whether the countymay seek reimbursement if the individual receives a settlement or judgmentthat covershis medical expenses. The Indigent HealthCare and Treatment Act requires a county to pay formedical care for indigent residents of the county who are not residents of a hospital district or the area a public hospital has an obligation to serve. Id. tit. 2. The act requires that the Department of Human Services "establish eligibility standards and application, documentation, and verification procedures for counties 'to use in determining eligibility." & 5 1.06(a). Nothing in the Indigent Health Care and Treatment Act or the current regulations purports to place a lien on or to provide for the assignment of any potential right of recovery in a personal injuryaction. Cf. Hum. Res. Code 9 32.033 (filingof an application for receipt of medical assistance constitutes an assignment of the applicant's right of recovery fromanotherperson forpersonal injur caused by the other person's negligence or wrong).?i

1. For examples fromother jurisdictions of statutory liens on or assignments of later-acquired property of (FootnoteContinued)Honorable John Owens - Page 2 (JM-1094)

Indeed, nothing in the IndigentHealth Care and Treatment Act or current regulations would require an indigent to report any unsettled tort claim on an application for assistance under the IndigentHealth Care and TreatmentAct. See a-nerallv 40 T.A.C. ss 14.104 and 14.105 (income and resources standards under IndigentHealth Care and Treatment Act).2 Although the act does not expresslyprovide for a lien or an assignment in the context you ask about, it is clear

. that the legislaturedid not intend for counties to pay for medical care when another source of payment exists. For example, section 1.06(c)(5) requires that an applicant provide information about "the existence of insurance coverage or other hospital or health care benefits forwhich the applicant is eligible." Also, section 2.02(b) of article 4438f provides:

The county is the payor of last resort and shall provide assistance only if other adequatepublic orprivate sources of payment are not available.

(FootnoteContinued) welfare recipients, see Conn.Gen. Stat.Ann. 55 17-83e, 17-83f (West 1988) (lien on later acquired or estate for AFDC or delinquent prq;rty child support);

. Ann. Stat. ch. 23, para. 11-22 (Smith-Hurd 1988) (charge on personal injury claims for repayment of public medical assistance):Minn. Stat. Ann. 5 393.10 (West 1968 & Supp. 1989) (county lien on any cause of action o: 4rf;o; furnishedmedical assistance): N.J. Stat. Ann. : - (WestSupp. 1988) (provision that application for AFDC operates as assignment of other rights to support): N.Y. Sot. Serv. Law 5 104-b (McKinney 1983) (lien on suit for personal injury as repaymentof public assistance): id. 8 366 (McKinney 1983 & Supp. 1988) (repaymentof costs of medical care and services):Pa. Stat.Ann. tit. 62 5 403 (PurdonSupp. 1988) (assignmentof property rights to state asprerequisite forpublic assistance).
2. The regulations of the Department of Human Services list "lump-sumpayments"as a type of resource. 40 T.A.C. 5 14.105(c)(ll). We think it is clear from the examples of OOlump-sum

payments," however, that a V1lump-sum payment" is a payment the receipt ofwhich is certain.

p. 5733Honorable John Owens - Page 3 (JM-1094)

Section 2.03(a)(3)provides that a countyhas an obligation to provide indigenthealth care only if 'no other adequate source of payment exists." Also, a rule adopted by the Department of Human Services provides that mandatory services under the IndigentHealth Care and Treatment Act do not include services and supplies that:

are payable by or availableunder any health, accident, or other insurance coverage; by any private or other governmental benefit systems;hv anv leaallv liablethird nartv; or under other contract. (Emphasisadded.)

**40** T.A.C. S 14.202(b)(7). All those provisions, however, apply to sources ofpayment that "exist"or "are available" or forwhich a thirdparty is "legally liable." A potential award in a personal injury suit does not yet exist and it is therefore not available. Further,no legal liability has been determined. Therefore, even though we think it is clear that the‘ legislaturewould not have intended for an indigent to be able to retain awindfall in the circumstancesyou ask about,we do not think the provisions cited above cover a potential, rather than actual, right to reimbursement. The question, then, iswhether a lien on or an assignment of a futurepersonal injury recovery can be implied from the provisions of the IndigentHealth Care and Treatment Act. 'I It is the rule 'pertyor real estate in Texas that a lien on personal proarises onlyby virtue of contract or statutory provision. Ro*on v,Gibson, 274 S.W. 292, 293 (Tex.Civ.App. -Waco 1925,nowrit): see also Johnson v. Second Iniurv w, 688 S.W.2d 107, 108 (Tex.1985) (right of subrogationdoes not exist exceptwhere clearly mandated by the legislature). Also, in 1961 this office considered whether a county could acquire a lien on the real estate of paupers for whom the county provided support. Attorney General Opinion WW-1150 (1961). This office concluded that a county could not acquire such a lien. The basis for that conclusionwas that a county has only those powers expressly or impliedly conferred on them by the constitution or statutes. S e aener llyAnnot., Affecting **Elzgibilitt** for, Personal InjuryRecovery as or Duty to Reimburse, Public Welfare Assistance, 80A.L.R.3d 772 (1977). In light of those authorities,we must conclude that under the current statute and regulations,which make no provision for a lien on or an assignment of a futurepersonal injury recovery, a county does not have a right to reimbursement in the context you ask about.

p. 5734Honorable John Owens - Page 4 (JM-1094)

-‘,

Although current Department of Human Services regulations under the IndigentHealth Care andTreatment Act do not require an assignment in the contextyou ask about, we do think that the Department of Human Serviceshas authority to promulgate a rule requiring that an applicant for county as&stance under the IndigentHealth Care and Treatment Act assign any personal injuryrecovery or right to recovery for medical expenses to the county, to the extent of the public funds expended. The department is required to set eligibility standards and applicationprocedures "in accordancewith" department rules relating to the AFDC-Medicaidprogram. V.T.C.S. art. 4438f, 5.1.06(a). Section 32.033 of the Human Resources Code, which governs the Medicaid program,provides in part:

(a) The filingof an application for or receipt ofmedical assistance constitutes an assignment of the applicant's or recipient's

-right of recovery from:

(1) personal insurance;
(2) other sources; or (3) anotherperson forpersonal injury causedby the otherperson'snegligence or wrong. See also 40 T.A.C. 9 45.501 (rule restatingprovision set out above). Because the department is authorized to adopt regulations governing eligibility for and application for indigenthealth care that are "in accordanceWqwith the department's standards and procedures for determining eligibility in the AFDC-Medicaid program,we think it is within the department'sauthority to adopt a rule under the IndigentHealth Care and TreatmentAct that tracks the Uedicaid rule set out in section 32.033 of the Human Resources Code.
Ithas been suggested that individual counties have independent authority to adopt such a rule under section 1.06(h) of the IndigentHealth Care and Treatment Act, which provides:
A county may use the standards and

;:,,;Fres establishedby *thedepartment a;i

use lessrestrictive standards procedures. A-.

p. 5735-.. Honorable John Owens - Page 5 (JM-1094)

See also V.T.C.S. art. 4438f, 9 2.04(b). Although that provision allows a county to adopt its own standards and procedures, it allows a county to do so only if the county's own standards and procedures are less restrictivethan those of the Department of Human Services. In the absence of a department regulation requiring assignment of potential personal injury recoveries, a countywould have no authority to adopt such a requirement since such a requirement would be **more** restrictive than the department'srequirements. SUMMARY
A county has no authority,under current law, to seek reimbursement from an indigent whose medical expenses arepaid by the county in accordancewith the IndigentHealth Care and Treatment Act and who subsequently recovers damages in a personal injury suit. However, the Department of Human Services does have authority under the IndigentHealth Care and Treatment Act to promulgatea rule requiring that applicants for county assistance under the Indigent Health Care and Treatment Act assign their rights to reimbursement from anotherperson for personal injury caused by the otherpersonjs negligence or wrong.

JIM MATTOX Attorney General of Texas
MARY KELLER FirstAssistant Attorney General

mu MCCREARY Executive AssistantAttorney General
JUDGE ZOLLIE STEARLEY SpecialAssistant Attorney General
RICK GILPIN Chairman, Opinion Committee

.- Preparedby SarahWoelk

Assistant Attorney General

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