April 12, 1951

Hon. Geo. W. Cox, M.D. State Health Officer State Department of Health Austin, Texas opinion No. V-1168

Re: Anthority o? the State Department of Iiealth 550defray the cost of diagnostic procedures to~determIne eliglbllity of children for crippled 'ch.lldren?a Dear Dr. Cox: care andtrea@ent.

Your request for an opiniofi relates to the authority of the Crippled Children's Division of tile State Department of Health to finance diagnostic procedures to determIne if a child comeswithin the proviqions andintent of HouseBill 754, Acts 49th Leg., 1945, ch.216, p. 298 (Art. 4419c, V.C.S.), without first having prodqred

a certificate of the county judge to the effect that the child’s parents are financially unable to provide the

care and treatment embraced in the act.

TheFederal Government has provided a grant to States for the purpose of enabling each State to extend and improve services for locating crippled children and for providing medical, surgical, correatlve, and other services and care, andfacilities forkdiagnosis, hospitalization, andaftercare for cNldren whoare crippled

or whoare suffering from conditl ns,whlch pllng. (42 U.S.C.A. 811711-714.9 lead to crlpPursuant to the crippled children’s program above referred to, the Federal Security Agency has promulgated certain rules andregulationti, the pertinent regulation or the purpose of this discussion being Section 200.9, f which Is as follows:

1. 42CodeFed. Regs. Sec. 200.9 (~ig,&g C&.Pocket. Supp.)Hon. Geo. W. Cox, page 2 (V-1168)

“State Plans for Crippled Children’s Services shall provide that the diagnostic services under the plan will be madeavailable within the area served b noetic center to any child (a3each dlagwithout charge, (b) without restriction or requirement as to the economic status of such child’s family or relatives or their legal residence, and (c) without anyrequirement for the referral of such child by8ny Individual or 8gency.’

In the furtherance of this program, an act was passed by the Texas Legislature creating a physical restoratlon service for Crippled ohildren In the State Department of Health. Art. 4419c, supra. This act makes provisi.ons for locating, examining, andphysically restoring arippled children of the State. section 3 of Article 4419c empowers the Crippled Children’s Mvlsion to “take census, makesurveys andestablish permanent records of crippled children

. . . andto take such other steps as maybe necessary In order to accomplish the’purposes of this Act.” As to care 8nd treatment of crippled children, Section 4 of the act places a llmltatlon thereon by requiring the county judge of the county in which the child resides to certify to the State Department of Health, upon sworn petition of the parents, that the parents are financially unable to provide such care andtreatment. It Is further provided that the county judge must also certify that one or more physicians regularly practicing under the laws of the State of Texas have examined the child and have recommendedsuch child as coming within the PPOQiSiOnS and intent of this act. Section 8 of the act empowers and directs the State Department of Health to take all ,actlon neaessary to accomplish the purposes provided or implied by the act and to cooperate with public agencies, Federal, State, county, andlocal, andwith private agencies andindividuals interested In the welfare of crippled children.

In addition to authorization contained in Article 44190, su ra State participation in this program is authorized y ection 2, Subdivision 10, of the General

K+ Appropriation Act (H.B. 322, Acts 51st Leg., R.S. 1949, ch.615, at p. 1345), which states that the proper officer op officers of any State departments, bureaus, divislons,

or State agencies are authorized to makeapplication for, accept any gifts, grants, allotments, or funds from the United States Government or educational or health projects andprograms to be used onState cooperative and other projects andprograms in Texas. Thestatute further provides that all of such funds shall be deposited in theHon. Geo. W.Cox, page 3, (V-1168) E::.,:.

State, Treasury andar,e<appropriated to,,the specific perease QPpurposes, authorized by,the>‘grantor; andshall bewithdrawn from theState Treasury sub~ject to llmitations placed onthis Act except if contrtry to,the purposes for which the funds were received.

As noted above, in order for a child to be accepted for treatment, the county judge must certify that the child’s parents are financially. Unable to provide the necessary care andtreatment, andmust further certify that one or morephysicians have examined the child and have recosnnendedhimas coming within the provisions and intent of the act. Art. 4419c, Sec. 4. Youstate that in numerous cases a physician cannot makea definite diagnosis for determlnlng whether the child comes wlthin the provislons and intent of thetact,; nor can’he determlne the extent of crippling, without various types of laboratory tests andX-rays. Yourlnqniry Is *whether the State Department of Health maypay for these,prellminary diagnostic examinations without securing the certlficate of the county judge.

It is our opinion that a necessary diagnosfs by laboratory tests or otherwise maybe paid for by,the State Department of Health without the necessity of obtaining a certificate of the ,parents’ financial inabllity from the county judge. Thelimitation contained In Section 4 of Article 44190 is a reqnirement that a certificate of financial lnabillty be obtained only 8s a prerequisite to accepting the child for care andtreatment and does not relate to the preliminary diagnosis. This conclusion is borne out by the p~ovlslons of Sections and 8 of Article 44190, 8s well as by the specific re3
quirements of the Federal regulation qUQtedabove. Woreover, the county judge could not certify that a parent
was financially Unable to provide care andtreatment in the absence of anadequate diagnosis as to the nature of the crippling condition.

smRY

TheCrippled Children’s ‘Division of the Texas State Department of Health is authorized by HouseBill 754, Acts 49th Leg., 1945, ch.216, p.298 (Art. 4419c, V.C.S.), to finance diagnostic procedures ordered by practicing physicians to determine if a child ccanesUnder--
.

Hon. GeoW.Cox, page 4 (V-1168)

the provisions of the act without securing 8 certificate of the county judge that the child's 

### parentsare financially unable to provide the needed care andtreatment. This limitation contained In HouseBill 754Is only applicable to care andtreatment of crippled children andIs not a limitation relating to diagnostic procedure.

APPROVEDI Yours very truly,

J. C. Davis, Jr. PRICEDMIEL County Affairs Mvislon Attorney General

Jesse P. Lotion, Jr. Reviewing Assistant

Charles D, Mathews First Assistant ?iii** Assistant