October 10, 1989

HonorableGary W. Rholes Shelby CountyAttorney 104 Church Street Center, Texas 75935 OpinionNo. JM-1108
Re: Whether a county that has closed a public hospital may change its eligibility standards for indigenthealth care applicants (RQ-1669)
DearMr. Rholes:
You ask the following question about the Indigent Health Care and TreatmentAct:

Can a county that has closed a public hospital avail itselfof Section 13.02 of the IndigentHealth Care and Treatment Act to change its eligibility standards for applicants for indigenthealth care? Under the Indigent Health Care and Treatment Act, Health & Safety Code ch. 61,l a publichospitalmust provide certainhealth care services to eligible residents of the area the publichospitalhas a legal obligation to serve. A county hospital is a publichospital.2 Therefore, a county

1. The Indigent Health Care and Treatment Act was previously codified as article 4438f,V.T.C.S. Ithas now been recodified as chapter 61 of the Health and Safety Code. Acts 1989, 71st Leg., ch. 678, 5 1, at 2292.
2. The act defines "publichospital" as "a hospital owned, operated, or leased by a governmental entity." Health & Safety Code § 61.002(U); see also Acts 1989, 71st Leg., ch. 500, § 1, at 1685 (amendingdefinition of "public hospital"). A "governmental entity" includes 'Ia county, municipality, or otherpolitical subdivisionof the state, but does not include a hospital district or hospital authority."Health & Safety Code 5 61.002(7).

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,thathas a public hospital is subject to the provisions of the act governing public hospitals rather than the provisions governing counties.3 See aem Health & Safety Code 5 61.023 (eligibilitystandards for counties). Section 61.052 of the act governs eligibility standards forpublic hospitals. In short, section 61.052 provides that a public hospitalmust adopt eligibility standards that are at least no more restrictive than the standards establishedby the Departmentof Health under section 61.006 of the act. If, in the operatingyear that ended before January 1, 1985, the hospital used less restrictive standards than those established by the Department of Health, the hospitalmust retain those standards. A public hospitalmay change its eligibility standards to make them more restrictive4 only if it complies with the rather burdensome requirementsof section 61.063,which provides:

(a)A public hospital may not change its eligibility standards to make the standards more restrictive and may not reduce the health care services it offers unless it complies with the requirements of this section. (b)Not later than the 90th day before the date on which a changewould take effect, the public hospital must publish notice of the proposed change in a newspaper of general circulation in the hospital's service area and set a date for a publichearing on the change. The publishednotice must include

3. The services a public hospital is required to provide are not the same as the services a county is required to provide. &S Health & Safety Code §§ 61.028, 61.054.. 4. When all the provisions of the IndigentHealth Care and TreatmentAct are read together, it is evident that a public hospital cannot use theprocedures set out in section 61.063 to make its standardsmore restrictive than those establishedby the Department of Health. See. e.a., Health & Safety Code 5 61.052(e) (providingthat if the Department of Healthmakes its eligibility standards less. restrictive, the publichospital must change its standards to at least complywith the department's standards).

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the date, time, and place of the public meeting. The notice is in addition to 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)Not later than the 30thday before the date on which the changewould take effect, the public hospital must conduct a public meeting to discuss the change. The meeting must be held at a convenient time in a convenient location in the hospital's service area. Members of the public may testify at the meeting. (d)If,based on the public testimony and on other relevant information,the governing body of the hospital finds that the change would not have a detrimentaleffect on access to health care for the residents the hospital serves, the hospitalmay adopt the change. That findingmust be formallyadopted. Health & Safety Code 8 61.063.
A county that closes its- publichospital is subject to the followingprovision:

Sec. 61.064. TRANSFER OF A PUBLIC HOSPITAL. (a) A governmental entity that owns, operates, or leasesa public hospital and that closes, sells or leases the hospital: (1) has the obligation to provide mandatoryhealth care assistance under this chapter;
(2) shall adopt the eligibility standardsthat the hospitalwas or would have been requiredto adopt: and (3)shallprovide the same services the hospitalwas or would have been required to provide under this chapter on the date of the closing, sale, or lease. Health & Safety Code § 61.064.

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your question iswhether a county that has closed its public hospital and is thus subject to section 61.064 may avail itself of the provisions of section 61.063 to make its eligibility standards more restrictive. Your question requiresus to determine the combined effect of section 61.063 and section 61.064. Section 61.064 requires a county that closes itshospital to adopt the eligibility standards that the county hospitalwould have been required to adopt. We interpret that languageto mean that a county that closes itshospitalwill continue to be governedby the eligibility requirementsapplicable to publichospitals rather than the requirementsapplicable to counties. We do not interpret it to mean that a county that closes its county hospital must adopt eligibility standards that are fixed for all time. Because section 61.063 is a provisiongoverning eligibility standards forpublic hospitals,a county that has closed its countyhospital may avail section 61.063.5 itself of the provisions of

SUMMARY A county that closes its county hospitalmay avail itself of the provisions of section 61.063 of the IndigentHealth Care and Treatment Act, Health and Safety Code, chapter 61. Very truly yo 

# J hLa7c

A;, JIM MATTOX Attorney General of Texas

5. Although you ask aboutmaking eligibility standards more restrictive,we note that a public hospitalmay make its eligibility standards less restrictive at any time. Health & Safety Code 8 61.052(d). Section 61.063 applies onlywhen a public hospital wishes tomake its eligibility standardsmore restrictive.

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NARYXELJJ3R FirstAssistantAttorney General
Lou MCCREARY ExecutiveAssistantAttorneyGeneral
JUDGE ZOLLIE STEXKLEY SpecialAssistantAttorney General
RICK GILPIN Chairman, Opinion Committee Preparedby Sarah Woelk AdsistantAttorney General

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