.JI.M MArnX August 15, 1990 

xl"ro*NEY GENERAL 

P 

Mr. Ron Lindsey Opinion No. JM-1207 

Commissioner 

Texas Department of Human Re: Obligation of a metroServices politan transit authority with 

P. 0. Box 149030 regard to medicaid recipients 

Austin, Texas 78714-9030 (RQ-1793) 

Dear Mr. Lindsey: 

The Department of Human Services ("the department") 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 the program as well as federal matching 

funds available under title 42, chapter 7, subchapter XIX, 

of the United States Code (sections 1396, et sea.). Federal 

funds are made available only upon federal approval of a 

"state plan" for administration of the program at the state 

level. 42 U.S.C. 5 1396. You refer to a provision among 

those in the Code of Federal Regulations implementing the 

medicaid program, 42 C.F.R. 5 431.53, which provides as 

follows with respect to a state's participation in the 

medicaid program: 

A State plan must- 

(a) Specify that the Medicaid agency will 

assure necessary transportation for recipients to and from providers: and 

(b) Describe the methods that will be 

used to meet this requirement. 

You advise that the department pursuant to its state 

plan provides transportation to medicaid recipients to and 

from medicaid service providers by prepurchasing bus tickets 

"in bulk" from various transportation authorities in the 

state for the use of medicaid 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 such bulk prepurchased tickets than they do for 

individual tickets ordinarily sold to members of the general 

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Mr. 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 as would be imposed 

by the authorities on members of the general public. 

We will assume for purposes of the following discussion 

that the transit authorities about which 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 and maintain rates, fares, tolls, charges, rents, 

or other compensation for the use of the facilities of the 

system acquired, constructed, operated, or maintained by the 

authority which shall be 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 a transit authority from charging the department 

more for bulk prepurchased bus tickets for medicaid 

recipients than it does for tickets for the general public. 

However, various factual considerations might have a bearing 

on a courtfs resolution of this issue. For example, the 

sale by a transit authority of the kind of bulk tickets in 

question might conceivably involve costs to the authority 

over and above those ordinarily involved in the 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 are made at 

prices comparable to those charged the department, might 

have a bearing on whether the practices of the authority are 

discriminatory or reasonable under the applicable statutes. 

We are unable in the opinion process to make findings of 

fact. While we have received correspondence in connection 

with your request from one transit authority indicating that 

that authority does not engage in the practice you complain 

of, we have received no information or explanations from any 

authorities engaged in this practice as to why they charge 

the department more per ticket for the bulk prepurchased 

tickets than they do members of the general public for 

tickets purchased individually. 

We note that federal law applicable 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. 6388 
Mr. Ron Lindsey - Page 3 (JM-1207) 

Urban Mass Transportation Act. &= 49 U.S.C. 55 1607a 

(block grants), 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 in the United States . . . shall, 

solely by reason of her or his handicap, be 

excluded from the participation in, be denied 

the benefits of, or be subjected to discrimination under any program or activity 

receiving Federal financial assistance or 

under any program or activity conducted by 

any Executive agency . . . . 

Title 49, section 1615(a)(l), of the United States Code, a 

part of the Urban Mass Transportation Act, provides: 

No person in the United States shall on 

the grounds of race, color, creed, national 

origin, sex, or m be excluded from participation in, or denied the benefits of, or be 

subject to discrimination under any project, 

program, or activity funded in whole or in 

part through financial assistance under this 

chapter. (Emphasis added.) 

We understand that many of the medicaid recipients for .whom 

bus tickets are prepurchased 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 

(purpose of medicaid program is "to furnish medical assistance on behalf of families with dependent children, and of 

aged, blind, or disabled individuals"). But again, we think 

that whether such individuals are discriminated against 

"solely by reason of (their) handicap(s)" within the meaning 

of section 794, or "on the grounds of . . . age" under 

section 1615(a)(l), in connection with the transit authority 

practices about which you complain, may involve factual 

issues which we in the opinion process would be unable to 

resolve, as discussed above with respect to the nondiscrimination provisions of articles 1118x, 1118~ and 11182.1 

1. Section 1615 further provides for action the U.S. 

Secretary of Transportation and/or the U.S. Attorney General 

may take if it is determined that "any person" is engaged in 

practices in violation of the section's anti-discrimination 

(Footnote Continued) 

P. 6389 
, 

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

You refer in your request to one of the provisions of 

the Code of Federal Regulations adopted to implement the 

federal medicaid laws, 42 C.F.R. 5 447.325, 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 the provider [Of 

medicaid services] but must not pay more than the prevailing 

charges in the locality for comparable services under 

comparable circumstances.*' See 42 C.F.R. 3 400.202 

(defining **provider" and "services,@* the latter definition 

referring in turn to the list of medicaid covered services 

in title 42, section 1396d, of the United 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). It appears that the secretary has specified 

in title 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 a medicaid recipient 

are covered services for which federal funding may be 

obtained. See also Smith v. Vowell, 379 F.Supp. 139 (1974) 

(state's duty to provide for transportation for medicaid 

recipients). 

However, the directive in title 42, section 447.325, of 

the Code of Federal Regulations, quoted above, goes to the 

state agency's authority to pay 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 is comparable to other sales of tickets is a fact 

issue that we cannot resolve. See the above discussion 

regarding nondiscrimination provisions of V.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 the United States Secretary of 

Transportation may not approve federal funding of 

transportation projects unless the applicant gives 

satisfactory assurances that reduced rates will 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, so that those officials may 

investigate and take appropriate action under section 1615. 

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

P 

handicapped and elderly individuals. Again, it is our 

understanding that many of the medicaid recipients receiving 

transportation services are elderly or handicapped. See 42 

U.S.C. 5 1396 (purpose of medicaid program). Again, 

however, whether the practice you describe could jeopardize 

a transit authority's eligibility for federal funds requires 

the resolution of fact issues. 

In addition to the statutes and regulations discussed 

above, a court if presented with this issue might also 

entertain the argument that the transit authority practices 

of which you complain violate constitutional Equal Protection principals. But again, we think that whether these 

practices constitute Equal Protection violations would 

probably involve questions of fact, which we in the opinion 

process would be unable to resolve. 

SUMMARY 

Whether a transit authority may legally 

charge the Department of Human Services more 

per ticket for bulk 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 in an attorney general opinion. 

Very truly y 1 s, Jhi~ . 

JIM MATTOX 

Attorney General of Texas 

MARY KELLER 

First Assistant 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 by William Walker 

Assistant Attorney General 

p. 6391