## THE ATTORNEY GENERAL U-BP%-BCXAS

Honorable William J. Kemp Opinion No. M-1233 President, Texas State Board of Dental Examiners Re: Bywhat method may 310 Capitol National Bank Bldg. Austin, Texas 78701 third parties legally engage inproviding dental care forpeople in Texas, and related Dear Dr. Kemp: questions.

Inyour recent request for an opinion from this office, you asked the following questions:

Question 1. Bywhat method may third parties, whether individuals or groups, government orbusiness, charitable organizations orprofessional organizations legally engage inproviding dental care forpeople in this State? Question 2. Can aprofessional organization, such as the Texas Dental Association, contract for dental services tobe rendered to citizens of this State by itsmembers who are Texas dental licensees? Question 3. CantheWelfare Department or Health Department of the State of Texas contract fordental care to be rendered to citizens of this State by Texas dental licensees? Question Ir. Must the provisions of the Dental Service Corporation (Article 1396-2.01, Sub. A(1)) be complied with where theprivate relationship ofdoctor andpatient isnot originally present but is

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furnished by others than the individual (patient)? The initial problem in answering your first, sedbnd, and fourth questions iswhether s third party can contract for dental services, as defined byArticle 4551a,Vernon's Civil Statutes,* to be rendered to citizens of this State, because Subdivision (4)of that statute provides:

"Any one who owns, maintains or operates any office orplace ofbusiness where he employs or engages, under a kind of contract whatsoever, any other person orpersons topractice dentistry as above defined shall be deemed tobepracticing dentistry himself, and shall himself be required tobe duly licensed topractice dentistry ashereinabove defined, and shall be subject to all of the other provisions of this Chapter, even though the' person orpersons so employed or engaged by him shall be duly licensed topractice dentistry ashereinabove defined." (Emphasis added.) Article 

## ‘1551~

provides that "The actual practice of dentistry inviolation of the laws of the State shall be enjoined at the suit of the State
. . . ."

Theprohibition against third parties contracting for such dental services is repeated inArticle 754a,Vernon's Penal Code. Article 752 of that Penal Code provides:

11

. . . It shall be unlawful forw person orpersons to operate, manage, orbe employed in any room, rooms, office, or offices where dental service isrendered or contracted for under the name of a corporation, company, association, or trade name, or in any other name than that of the

*All references toArticles are toVernon's Civil Statutes, unless otherwise noted.

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## 3 (M-1233)

legally qualified dentist or dentists actually engaged in thepractice of dentistry in such room, rooms, office or offices; provided, however, this shall not prevent two ormore legally qualified dentists from practicing dentistry in the same offices as a firm, partnership, or as associates intheir own names as stated in licenses issued to them
. . . Each day ofviolation of this Article shall constitute a separate offense." (Emphasis added.) Article 

## 754of that Penal Codemakes any violation of the above articles punishable by a fine of $100minimum to $1000maximum or 1 to 12months in jail or both.

The respective exceptions to the above civil and criminal prohibitions are found inArticle 4551b, Vernon's Civil Statutes, and Article 

## 753, Vernon's Penal Code. The only exception that applies to the questions athand is exception (8),the samewording appearing inboth Articles, as follows:

"The definition of dentistry
. . .shall not apply to: .

## (8)Dental Health Service Corporations legaliy'chartered under Subsection (1)of Article 2.01, of the Texas Non-Profit Corporation Act;
. . ." The Texas Non-Profit Corporation Act, Article 

## 1396-2.01,Subdivision A(l), provides inpart:

"(1) Charitable corporations may be formed for the purpose of operating aDental Health Service Corporation which service corporation will manage and coordinate the relationship between the contracting dentist, who will perform the dental.services, and the patient who will receive such services where suchpatient is a member of agroup which has contracted with the Dental Health Service Corporation toprovide dental care tomembers of that group . . . .'I This language of the Texas Non-Profit Corporation Act is permissive and notmandatory by its terms. However, since any third person or association attempting to contract for services tobe rendered to citizens of the State would be inviolation of the Penal Code and subject to civil injunctive proceedings, it would seem that the abovementioned Non-Profit Corporation provides
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the only answer atpresent toyour questions one, two, and four.

Since Article 4551a,Vernon's Civil Statutes, and Article 752,Vernon's Penal Code, by their terms do not prohibit State action, the answer toyour third question requires examination of the statutory powers of the departments named. TheMedical Assistance Act of 1967,Article 6953-1, administered by the State Department of Public Welfare, states in section (2):

"It is the intent of the Legislature tomake statutory provision which will enable the State of Texas toprovide Medical Assistance onbehalf of needy individuals of this state and to enable the state to obtain all benefits provided by the Federal Social Security Act as itnow reads or as itmay hereafter be amended, or by any other Federal Act now in effect orwhich may hereafter be enacted within the limits of funds available for suchpurposes. Wherever used in this Act the term 'MedicalAssistance' shall include all of the health care, services, assistance and benefits authorized orprovided for in such Federal legislation." The Social Security Act in 42U.S.C. 1396(d)(a), defines "medical assistance" as including dentists' services to enumerated classes ofpeople. Therefore, the State Department of Public Welfare can contract for the rendering of dental services asprovided in Article 695j-1. However, the contract by the State Department of Public Welfare can cover only individuals who are eligible and receiving agrant of certain public assistance as specified by the statutes at the time ofrendering themedical or dental services.
In the absence of a statutory duty orresponsibility to provide dental care, an agency such as the State Department of Public Health could not contract toprovide such care. However, the State Department of Public Welfare is statutorily empowered to administer theMedical Assistance Act of 1967 under Article 6953-l. Furthermore, the State Department of Public Welfare is statutorily authorized to enter into cooperative agreements with other State agencies and departments, such as the State Department of Public Health, asmay be deemed "expedient," under Article 695j-1, Section 3(7) and thereby legally engage inproviding dental care as above stated. It is our opinion that theDental Practices Act, including Article 4551~ and Articles 752 and 754a,
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Hon. William J. Kemp, Page 5 (M-1233)

are Inapplicable to the State and Its agencies in the discharge of these statutory responsibilities. 

## 53Tex.Jur.2d 

## 58,Statutes, Sec. 32; 49AmJur. 235, States, Sec. 14,p.

## 236, Sec.

## 15.
SUMMARY Third parties, except the State

### and Its agencies, whether individuals, associations, or corporations, may legally contract fordental care tobe rendered to citizens of the State only by complying with Article 

## 1396-2.01 of the Texas NonProfit Corporation Act. The State Department of Public Welfare and other State agencies, can so contract pursuant to the Medical Assistance Act of

## 1967, (Article 695j-1, V.C.S.) and Article 

## 695c, Section 4(12), Vernon's Cfil Statutes.

Prepared by Kerns Taylor Assistant Attorney General
APPROVED: OPINION COMMITTEE
W. E.Allen, Acting Chairman Jim Swearlngen Gerald Ivey James McCoy James Quick SAMUEL D.MCDANIEL Staff Legal Assistant
ALFRED WALKER Executive Assistant NOLA WHITE First Assistant

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