DAN MORALES

.4TT,xiSE\ GE\ER.AL 

### QBffice of tip Elttornep @eneral &ate of UZexas March 18, 1992

Honorable A.J.Hartel Liberty County Attorney P.0. Box9127 Liberty, Texas 775759127 Opinion No.DM-98

Re: Whether health care professionals employed on a part-time basis by a county to provide medical services to inmates in a county jail are entitled to indemnification and legal representation under sections 104.001,104.004 and 110.002 of the Civil Practice and Remedies Code (RQ-158)

Dear Mr. Hartel:

You inform us that Liberty County is.attempting to employ physicians and
nurses to provide medical care to inmates in the Liberty County Jail on a part-time basis. We have also been informed that the county currently employs a physician who is paid a salary of $l,OO&OO per month and also receives $10.00per patient examined and $3.00per drugprescription reviewed: Registered nurses are paid for their setices on an hourly basis. You explain that in order to attract health care professionals toworkin the countyjail, Liberty County would like to offer them the greatest benefits available, inchrding state-funded indemnification and legal representation ifpossible. To that end, you ask whether health care professionals employed on apart-time basisbythe Liberty CountyJail toprovide medical services to inmates are entitled to indemnification and legal representation under sections 104.001,104.004,and 110.002ofthe CivilPractice and Remedies Code. Chapter 104ofthe CivilPractice and Remedies Code provides that the state will indemnify and defend state employees and officials in certain kinds of legal actions. Specifically, section 104.001of the Civil Practice and Remedies Code provides that the state shall indemnify astate employee or official for damages in an action based on an act or omission by the person in the course and scope of the person’s state duties and lists those persons entitled to indenm&ation. See Civ. Prac. & Rem C.ode0 104.002(defining conduct entitled to indemnification). In

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addition, section 104.004 provides that the attorney general shall defend those persons listed in section 104.001.

Certain physicians and psychiatrists are among the categories of persons entitled to indemnification and legal representation under sections 104.001 and 104.004. Specifically, section 104.001,subsection (3) indemnifies “a physician or psychiatrist licensed in this state whowasperforming services under a contract with any state agency, institution, or department..

.when the act or omission on which the damages are based occurred.” In addition, subsection (1) of that provision indemnifies “anemployee, a member ofthe governing board, or any other officer of
a state agency, institution, or department.” Therefore, the critical question for purposes of determining whether a physician or nurse employed by or under contract with the Liberty County Jail is entitled to indemnification and legal representation under chapter 104 of the Civil Practice and Remedies Code is whether Liberty County qualifies as a“state agency,institution, or department.”

In Attorney General Opinion JM-197 (1984), this office considered whether county attorneys are entitled to indemnification and legal representation under former article 6252-26,V.T.C.S.,the predecessor statute to chapter 104ofthe Civil Practice and Remedies Code.’ Reasoning that “article 6252-26was meant to apply only to officers and employees ofstate agencies, institutions and departments having statewide jurisdiction,” and noting that state indemnification for certain county officials and employees is provided in other statutes, we concluded that county attorneys were not covered by the statute. Ia! at 2-3; see also Attorney General Opinion JM-1005 (1989) (officials and employees,ofriver authority not entitled to indemnification under chapter 104ofthe CivilPractice and Remedies Code). The legislature has not amended chapter 104 since 19&tto include county employees and officials within the definition ofpersons entitled to indemnification and legal representation. Therefore, we must conclude that a health care professional employed by or under contract with Liberty County would not be entitled to indemnification or legalrepresentation under chapter 104.

Next we consider whether a health care professional employed by Liberty County to provide medical care to inmates of the Liberty County Jail would be entitled to indemnification under chapter 110of the Civil Practice and Remedies Code. Generally, chapter 110of the Civil Practice and Remedies Code provides

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that the state will indemnify health care professionals* who devote a certain percentage of their professional energies to “charity care or services” in a medical malpractice claim in an amount not to exceed $25,000.00. See Civ. Prac. & Rem. Code 3 110.004.3A health care professional is entitled to indemnification ifhe or she “renders charity care in at least 10percent ofthe patient encounters engaged in by saidhealth care professional during the policyyear inwhichthe claimwasmade.” Id. $ l10.001(2).4 “Charity care or services”is defined as care or services provided by a health care professional under several state and federal statutes that provide health care for the needy, including the Indigent Health Care and Treatment Act, chapter 61,Health and Safety Code? Id. 9 110.001(l).

Your letter and the brief submitted in support ofyour request suggest that because many ofthe inmates in the Liberty County Jail are indigents, a health care professional who provides medical care for inmates would automatically qualify for indemnification pursuant to chapter 110. This is not the case. As noted above, whether a particular health care professional is qualified for indemnification will depend upon the extent to which his or her overall practice is devoted to the treatment of the needy under certain state and federal statutes. Such a determination involves questions of fact which cannot be resolved in the opinion process. Although we cannot address whether aparticular health care professional is entitled to indemnification under chapter 110, we can address the question whether treatment ofindigent countyjail inmates under the part-time arrangement you describe would constitute “charity care,” as defined by section 110.001(l), for

*or pwposcs of chapter 110 of the Civil Practice and Remedies Code, a “health care professhaP includes a person licensed to practice mcdiciae under the Texas Medical Practice Act, a person registered by the Board of Nurse Examiners as ao advanced practice muse or a certikd nurse midwife, or aperson rceognizcd bythe Board ofMcdicai Examiners as aphysician assistant. Cii. Prac. &Rem. Code 0 110.001(3).

%ection 110.004(a) authorizes indemnification in an amount up to SlOO,tMO.oO in caws rc.ding fromprenatal care,l&or and dchwy, or resulting from emergency care.

‘A “path encoont~ mans %a occasbnonwb.ichrhcalthcareprofcssionalnndus professional heaM cart sehces to apat&t.” Id.0 llO.OOl(7).

sother provisions iac.lm in the ddbitim of ‘charity cue or services’ inchic Medicaid under chapter 32 of the Human Rcsowccs Cc& the Matcmal and Infant Health Improwment Act, chapter32of the Hcaltb and Safety code, the Texas PrimaryHcaltb Care Sewicc.s Act, chapter 31 of the Health and safety Codq the Chronically Ill and Disabled Children’s serviecs Act, chapter 35 of the Health and Safety Code; or a contract with a miglaUt or fommunity he&h anter that rckii funds pursuant to aspeci6ed fcdcral program,42 U.S.C. 00254b.2%~ 2%. Id. 0 llO.a)l(l).

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purposes of the requisite ten percent of a health care professional’s yearly patient encounters. Chapter 110 defines “charity care or services” to include “care or services provided by a health care professional under [the Indigent Health Care and Treatment Act].” Article 104.002ofthe Code ofCriminal Procedure provides that a prisoner in a county jail who receives medical services is required to pay for the services when rendered. Code Crim. Proc. art. 104.002(d). If, on the other hand, a prisoner “cannot pay for such services because of indigence, as defined in the Indigent Health Care and Treatment Act, [the] county shall assist the prisoner in applying forreimbursement through [the]Act orthe hospital district ofwhichhe isa resident.” Id. Thus, the medical care of some indigent inmates will ultimately be provided pursuant to the Indigent Health Care and Treatment Act.

We believe that treatment of such inmates pursuant to a contract to provide medical care under the Indigent Health Care and Treatment Act constitutes “care or services provided by a health care professional under [the act]” and therefore qualifies as “charity care or services”under chapter 110. On the other hand, we believe that treatment of such inmates under a contract such as the one you describe, where the health care professional agrees to render medical care in exchange for a flat fee and a per patient fee, regardless of the patient’s payment source, would not necessarily qualify as “charity care or services.” Chapter 110 explicitly requires that medical care be provided “under”the Indigent Health Care and Treatment Act. Thus, the contract with the health care professional must be drafted in lightofthe requirements ofthe Indigent Health Care and Treatment Act. A health care professional’s incidental treatment under an arrangement such as the
one you describe ofapatient whohappens to be entitled to medical care under the Indigent Health Care and Treatment Act does not necessarily constitute care under the act.

In sum, the medical care ofcountyjail inmates pursuant to a contract to provide such care under the Indigent Health Care and Treatment Act constitutes “charity care.% Therefore, although the position of part-time physician or nurse in a county jail would not automatically qualify a health care professional for state indemnification, a health care professional who treats countyjail inmates pursuant to a contract ,toprovide such care in compliance with the Indigent Health Care and

%f course, the medical care of countyjail inmates pursuant to a contract to provide such care under any of the other statutes or programs listed in section 110.001(l), see note 5, sups, would also corlstitutc “charitycare.”

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Treatment Act may count such patient encounters toward the ten percent patient encounter minimum required for indemnification under chapter 110.
SUMMARY

Health care professionals employed on a part-time basis by the Liberty CountyJail to provide medical services to countyjail inmates are not entitled to indemnification or legal representation under chapter 104ofthe CivilPractice and Remedies Code.

The determination whether a particular health care professional employed on a part-time basis by the Liberty County Jail to provide medical care to inmates is entitled to indemnification under chapter 110 of the Civil Practice and Remedies Code depends upon the overall nature of his or her practice and involves questions offact which cannot be resolved in the opinion process. If a health care professional provides medical care to indigent inmates pursuant to. a contract to provide such care in compliance with the Indigent Health Care and Treatment Act, such care constitutes “charity care or services”for purposes of section 110.001(l), and counts toward the ten percent patient encounter minimum required for indemnification under that chapter. Treatment of such inmates under a contract where the health care professional agrees to render medical care in exchange for a flat.feeand a’per patient fee, regardless of the patient’s payment source, would not necessarily qualify as“charitycare or services.”

DAN MORALES Attorney General ofTexas

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WILLPRYOR First Assistant Attorney General

MARY KELLER Deputy Assistant Attorney General

JUDGE ZOLLIE STEAKLEY (Ret.) Special Assistant Attorney General

RENEA HICKS Special Assistant Attorney General

MADELEINE B.JOHNSON Chair, Opinion Committee Prepared byMary R. Crouter Assistant Attorney General

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