July 14, 1987

Iionorabl. Chet Brooks Chairman Committee onEealth and Elmanservices Texas State Senate P. 0. Box 12068 **Austin,** Texas 78711 Opinion No.JM-746

R.: Obstetrical **and** post-natal services under the Indigent liaalth CareAct

Dear Senator Brooks:

You ask several questions about the Indigent **FIealth Care**  **Ate** [hereinafter the act]. article 443gf. V.T.C.S. See art. 443af. 91.02(10) (defining “public hospital”); see also **Attorney** General opinion m-626 (1987). Your first question is **whether** a public hospital is required to provide obstetrical andpost-natal services to eligible persons.
Public hospitals must provide, to eligible residents. the Inpatient andoutpatient services that acounty is ropuired toprovide to indigents under section 3.01(a)(l) of the act. See also art. 4430f. $11.03(a) (a public hospital mayprovide required services through **other** health-care providers); art. 4438f, 112.01 (a public hospital is liable for required servicer provided byother **entities).** Section 3.01.(a)(l) requires that counties provide “inpatient end outpatient hospital services as limited by this title.” It does ndt list specific services. gather, the **Departmsnt** ofRealth is required to define the required services. V.T.C.S. ert. 4438f. 11.06(a). To fulfill that obligation. the department has promulgated rules governing required inpatient and outpatient hospital services. 40 **T.A.C.** 914.201(l). (2) (1986). Those rules are general, and do not list specific types of required medicel care. The rules doprovide, however. that “msdicelly necessary” services are required. 40**T.A.C.** 914.201(l). Medically necessary services for an eligible pregnant
womanwould unquestionably include some obstetrical and post-natal

1. Acounty subject to the act mustprovide not only inpatient and**outpatient hospital**  services but also other services including physician services. Art. 443gf. $3.01.

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services. SeeFinal Report of theTeskForce onIndigent Health Care (December 19m (indiceting that maternity care was one of the main
concerns of the task **force);** see also art. 4438f, 81.06(a) (department is to define services in accordance with department rules relating to Medicaid progrsm): 40 **T.A.C.** 94.1804 (1985) (pregnint womenwhomeet other applicable eligibility standards are eligible **for** Medicaid); V.T.C.8. art. 4447~ (Haternal andInfant Eealth Improvement Act). The dateruination of what specific services era medically necessary is a question of fact **and**cannot beresolved in the opinion process.

Your second question is:

Does a public hospital thet provided obstetrical and post-natel s.rvic.s to eligible residents during the operating period that ended prior to **January** 1. 1985. violate section 11.01(b) of the act if the hospital does not continue to provide thoss services?

Section 11.01 of the ect provides, in part:

(a) Each public hospital shall provide the inpatient end outpatient hospital services a county is required to provide under Subdivision (1) of Subsection **(a)** of Section 3.01 of this Act. (b) If a public hospital provided edditionel health care services to eligible residents during the operating year that ended before January 1, 1985. the hospital shall continue toprovide those s.rvic.s. (c) **A** public hospital mayprovide additional health care sarvices.
If the obstetrical and post-natal services in question were medically necessary services required under the Indigent Realth Care Act, a public hospital would violate section 11.01(a), not section 11.01(b). if it discontinued provision of such services. If apublic hospital provided obstetrical end post-natal services during the operating year that ended before January 1. 1985. subsection (b) of section 11.01 would require **the**public hospital tocontinue to provide those services, even if those services would not otherwise be required under section 11.01(e) of the act.

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Your third question is:

Does section 13.02 of the act require apublic hospital to makepublic notice andhold apublic hearing before the hospital can reduce the scope of its services **or further**  restrict eligibility for services?

**Section** 13.02 of the act provides:

(a) A public hospital may not change its eligibility standards to makethe standards more restrictive and maynot reduce the health car. services it offers unless it complies with the requirements of this **section.** (b) Notlater then the 90th deybefore achange would **take effect,**  the public hospital must publish notice of the proposed change in a newspaper of **general** circulation in the area served **by**thehospital andset adate **for** apublic hearing on the change. Thepublished notice must include the date. time. and place **of** the public meeting. This notice does not replace the notice required by the open meetings law. Chapter 271, **Acts** of the 60th Legislature. **Regular Session,**  1967 **(Article** 6252-17, Vernon's Texas Civil Statutes). (c) Notlater thanthe 30th daybefore **the**date
onwhich **the** change would take effect, **the** public hospital shall conduct apublic meeting todiscuss **the** change. The maeting shall be held et a convenient time in a convenient location within **the area**  the hospital **has** e legal obligation to
serve. Membersof the **general** public maytestify
at themeeting.

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(0) Thecommissioners court, city council, or board of -gers or other governing body of the hospital must formally adopt the finding that the change does not have a detrimental impact on access tohealth care. (Bmphasis added).

Section 13.02 of the act sxplicitly requires apublic hospital to give notice andhold apublic hearing **before** the hoapitel mayreduce the services it offers or before the hospitel maymakeits eligibility standards more restrictive. In order to reduce services **the** appropriate governmental body must determine that "the change would not have **a** detrimentel impact on access to **health** care for the residents the hospital serves." V.T.C.S. art. 4438f. 813.02(d).

Also in regard to section 13.02. wecaution that its provisions donot allow apublic hospital tomakeits eligibility standards more restrictive than those established by the Department of Health under section 1.06 of the act. **Section** 10.02(b) provides that aperson is eligible for assistance **from** apublic hospital if that persdn meets the basic income and resources requirements established by the Departmane of Eealth under section 1.06 of the **act** or if that person meets alass restrictive income andresources **standard** adopted by the public hospital. Section 10.02(f) provides es follows:

**A**public hospital mayadopt aless restrictive incoma end resources standard at any time. If because of a change in the income and resources requirements established by the department under Section 1.06 of this Act the standerd adopted bya hospital becomes stricter than **the** requirements established by the department, the hospital shall change its stendard to et leest comply with the requirements established bythe department.

Theact does not permit apublic hospital to set eligibility standards that are morerestrictive **than** those set **by the**  **Department** ofHealth. **Also.** if the Department of Eealth changes its standards to makethem less restrictive, apublic hospical **must**also change its standards if they are more restrictive than the newstandards established by the department. SeeBill Analysis to S.B. **No.** 1, 69th Leg.. prepared for Senate Commit= on Eeelth andBumanServices, filed in Bill File to S.B. No. 1, Legislative Reference Library (one purpose of Indigent Eealth Care Act was to define "indigency"). Thus, apublic hospital may**make**its eligibility standards morerestrictive in accordance with **the**procedures set **out** in section 13.02 only **if** the newstandards **set** are nomore restrictive than those established by the Department of Health.

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**SUMHARY**
Under the Indigent Eealth Care Act, article **4438f.** V.T.C.S.. apublic hospitelmust provide to eligible residents madically secassary inpatient end outpatient health-care sarv1c.s. The determination of whet specific services **era** medically necessary is a question **of** fact. **A** public hospital must continue to provide services it provided during the operating year that ended before January 1, 1985. In order to reduce the services it offers or to **make** its -eligibility standards morerestrictive, apublic hospital must give notice and hold a public hearing in accordance with section 13.02 **of** the act.

Attorney General ofTexas

**MARY KELLRR**  Executive Assistant **Attorney** General

JUDGEZOLLIESTBABUT Special Assistant Attorney **Generel**
RICIIGILPIN Chairman, Opinion Committee Prepared bySarahWoalk Assistant Attorney General

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