.JI.M MArnX August 15, 1990 xl"ro*NEYGENERAL



### P Mr. Ron Lindsey Opinion No. JM-1207

Commissioner Texas Department ofHuman Re: Obligation of a metroServices politan transit authority with P. 0. Box 149030 regard tomedicaid recipients Austin, Texas 78714-9030 (RQ-1793)

DearMr. Lindsey:

The Department ofHuman Services ("thedepartment") is the state agency designated to administer the medical assistance ("medicaidl') program in Texas. See Hum. Res. Code ch. 32. The department administers state funds appropriated for theprogram aswell as federal matching funds available under title 42, chapter 7, subchapter XIX, of theUnited States Code (sections 1396, et sea.). Federal funds aremade available only upon federal approval of a "state plan" for administration ofthe program atthe state level. 42U.S.C. 5 1396. You refer to aprovision among those in the Code of Federal Regulations implementing the medicaid program, 42 C.F.R. 5431.53, which provides as follows with respect to a state's participation in the medicaid program:

A State planmust-

(a) Specify that theMedicaid agency will
assure necessary transportation for recipients to and fromproviders: and
(b) Describe the methods that will be used tomeet this requirement.

You advise that thedepartment pursuant to its state plan provides transportation to medicaid recipients to and frommedicaid service providers byprepurchasing bus tickets "inbulk" fromvarious transportation authorities in the state for the use ofmedicaid recipients. We understand you to say that certain of these transportation authorities -- metropolitan rapid transit authorities and regional transportation authorities -- charge the department more per ticket for suchbulk prepurchased tickets than they do for individual tickets ordinarily sold tomembers of the general

p. 6387Mr. Ron Lindsey - Page 2 (JM-1207)

/4 public. You express concern that the charging of additional

amounts for bulk tickets prepurchased by the department constitutes discrimination by the transit authorities in question. YOU ask whether such transit authorities are required to provide the bulk prepurchased **tickets to**  the department at the same cost per ticket aswould be imposed by the authorities onmembers of the general public.

Wewill assume forpurposes of the following discussion that the transit authorities aboutwhich you are concerned
are ones operating under articles 1118x, 1118y, or 11182, V.T.C.S., providing for "metropolitan rapid transit authorities," "regional transportation authorities," and "city transit departments" respectively. Each of these **articles** provides that the transportation entity "shall establish andmaintain rates, fares, tolls, charges, rents,
orother compensation forthe use of the facilities of the system acquired, constructed, operated, ormaintained by the authority which shallbe reasonable and nondiscriminatory." V.T.C.S. arts. 1118x, 5 6(j); 1118y, 5 lo(j); 11182, 5 6(f).

It is certainly possible that this language would prohibit atransit authority from charging the department
more for bulk prepurchased bus tickets for medicaid recipients than itdoes fortickets forthe general public. However, various factual considerations might have abearing
on **a** courtfs resolution of this issue. For example, the saleby atransit authority of the kind ofbulk tickets in question might conceivably involve costs to the authority
over and above those ordinarily involved inthe sale of tickets to the general public. Also, whether the authority also sells bulk prepurchased tickets to other persons or organizations, and if so,whether such sales aremade at prices comparable to those charged the department, might have abearing onwhether thepractices of the authority are discriminatory or reasonable under the applicable statutes. We areunable inthe opinion process to make findings of fact. While we have received correspondence in connection with your request fromone transit authority indicating that that authority does not engage inthe practice you complain of,we have received no information or explanations from any authorities engaged inthis practice as towhy they charge thedepartment more per ticket for the bulk prepurchased tickets than they domembers of the general public for **tickets** purchased individually.

We note that federal lawapplicable to transportation authorities receiving federal funds contains nondiscrimination provisions similar to those of the state statutes referred to above. The transportation authorities about which you complain may receive federal funding under the

P. 6388Mr. Ron Lindsey -Page 3 (JM-1207)

Urban Mass Transportation Act. &= 49 U.S.C. 55 1607a (blockgrants), 1614 (grant program for areas other than urbanized areas). Title 29, section 794,

### of the United States Code, provides that

WI0 otherwise qualified individual with handicaps inthe United States . . . shall, solely by reason of her orhis handicap, be excluded from theparticipation in,be denied thebenefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance or under any program oractivity conducted by any Executive agency . . . . Title 49, section 1615(a)(l), of theUnited States Code, a part of theUrban Mass Transportation Act, provides:

Noperson in theUnited States shall on the grounds of race, color, creed, national origin, sex, orm be excluded fromparticipation in,ordenied thebenefits of, or be subject todiscrimination under any project, program, oractivity funded in whole or in part through financial assistance under this chapter. (Emphasis added.)

We understand thatmany of themedicaid recipients for .whom bus tickets areprepurchased in bulk by the department are handicapped or aged individuals. See 29 U.S.C. 5 706(7) (definition of handicapped individual); 42 U.S.C. § 1396 (purposeofmedicaid program is "to furnish medical assistance onbehalf of families with dependent children, and of aged, blind, ordisabled individuals"). But again, we think thatwhether such individuals are discriminated against "solely by reason of (their)handicap(s)" within themeaning of section 794, or "onthe grounds of
. . .age" under section 1615(a)(l), inconnection with the transit authority practices about which you complain, may involve factual issues which we **in** the opinion process would be unable to resolve, asdiscussed **above** with respect to the nondiscrimination provisions ofarticles 1118x, 1118~ and 11182.1

1. Section 1615 further provides foraction the U.S. Secretary of Transportation **and/or** theU.S. Attorney General **may** take if it isdetermined that "anyperson" isengaged in practices inviolation of the section's anti-discrimination (Footnote Continued)

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Mr. Ron Lindsey -Page 4 (JM-1207)

You refer inyour request to one of the provisions of the Code of Federal Regulations adopted to implement the federalmedicaid laws, 42 C.F.R. 5447.325, which provides with respect to a state agency administering a state's medicaid program, such as the department here, that "[t]he agency may pay the customary charges of theprovider [Of medicaid services] butmust notpaymore than theprevailing charges in the locality for comparable services under comparable circumstances.*' See 42 C.F.R. 3400.202 (defining **provider"and "services,@*the latter definition referring in turn to the list ofmedicaid covered services in title 42, section 1396d, of theUnited States Code). Those covered services include in addition to those specified "any other medical care, and any other type of remedial care recognized under state law, specified by the secretary [of Health and Human Services].1* 42 U.S.C. 5 1396d(a)(Zl). Itappears that the secretary has specified intitle 42, section 440.170, of the Code of Federal Regulations that certain transportation services, including those of a common carrier, necessary to the securing of medical examinations and treatment by amedicaid recipient
are covered services for which federal funding may be obtained. See also Smith v.Vowell, 379 F.Supp. 139 (1974) (state'sduty to provide fortransportation for medicaid recipients).

However, thedirective intitle 42, section 447.325, of the Code of Federal Regulations, quoted above, goes to the state agency's authority topay for medicaid services and not to a provider's right to seek to impose given charges for those services. Further, whether the bulk sale of tickets iscomparable to other sales of tickets isa fact issue that we cannot resolve. See the above discussion regarding nondiscrimination provisions ofV.T.C.S. articles 1118x, 1118y, and 11182, and title 29, section 794, of the United States Code.
Similarly, title 42, section 1604(m), of the United States Code provides that theUnited States Secretary of Transportation may not approve federal funding of transportation projects unless the applicant gives satisfactory assurances that reduced rateswill be charged

(Footnote Continued) provision. It might be advisable for the department to apprise the secretary of transportation or the attorney general of the transportation authority practices which are the subject of your request, sothat those officials may investigate and take appropriate action under section 1615.

P. 6390Mr. Ron Lindsey -Page 5 (JM-1207)

P handicapped and elderly individuals. Again, it is our

understanding thatmany of themedicaid recipients receiving transportation services are elderly orhandicapped. See 42 U.S.C. 5 1396 (purpose of medicaid program). Again, however, whether thepractice you describe could jeopardize
atransit authority's eligibility for federal funds requires the resolution of fact issues.

Inaddition to the statutes and regulations discussed above, a court ifpresented with this issue might also entertain the argument that the transit authority practices ofwhich you complain violate constitutional Equal Protection principals. But again, we think thatwhether these practices constitute Equal Protection violations would probably involve questions of fact,which we in the opinion process would beunable to resolve.

SUMMARY

Whether a transit authority may legally charge the Department ofHuman Services more per ticket forbulk prepurchased bus tickets for medicaid recipients than it charges members of the general public for individually prepurchased tickets would probably involve factual issues that cannot be resolved inan attorney general opinion.

Very truly y 1s, 

# Jhi~

.

JIM MATTOX Attorney General of Texas

MARY KELLER FirstAssistant Attorney General

LOU **MCCREARY** Executive Assistant Attorney General

JUDGE ZOLLIE STEAKLEY Special Assistant Attorney General

RENEA HICKS Special Assistant Attorney General

P RICK GILPIN

Chairman, Opinion Committee
Prepared byWilliam Walker Assistant Attorney General

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