May 15, 1990

Mr. Ron Lindsey Commissioner Texas Department ofHuman Services P. 0.Box 149030 Austin, Texas 78714-9030 Opinion No. ~~-1174

Re: Authority ofthe Texas Department ofHuman Services toextend medicaid coverage to children under age six meeting certain income criteria (RQ-1989)

Dear Mr. Lindsey:

You advise that the U.S. Congress in 1989 adopted amendments to the provisions of section 1396a oftitle 42of the United States Code mandating coverage under state medicaid programs receiving federal matching funds of children under age sixmeeting certain income criteria. Omnibus Budget Reconciliation Act of 1989, Pub. L. No. 101-239, 56401, 1989 U.S. Code Cong. & Admin. News (103 Stat.) 2106, 2258. Prior thereto, federal law required coverage of children under age one. 42U.S.C. 51396aW , amended bv Pub. L.NO. 101-239, 56401(a) (approved Dec. 19, 1989). Section 1396a provides inter alia minimum coverage requirements that the "state plans" of participating states must comply with inorder for such states to receive federal medicaid matching funds. See also 42U.S.C. 55 1396, 1396b(a) (authorizing theU.S. Secretary of Health andHuman Services to provide federal matching funds to states having submitted approved state medicaid plans).

Subsection (c)of section 6401 of Public Law 101-239 provides that the amendments made in section 6401 with regard to required medicaid coverage shall apply topayments made **by** the Secretary ofHealth and Human Services under the medicaid program onor after April 1, 1990.

You point out that the Texas Legislature in 1989, prior to the adoption of Public Law 101-239, amended section 32.024 ofthe Human Resources Code byadding a subsection

p. 6191Mr. Ron Lindsey -Page 2 (JM-1174)

(g)ldirecting the Texas Department of state agency designated to administer program, to Human Services, the the state medicaid

set the income eligibility cap for medical assistance for children up to age four atnot less than 100percent ofthe federal poverty guidelines for state fiscal year 1990 and for children up toage six for state fiscal year 1991.2

Acts 1989, 71st Leg., ch. 1219, §1,at 4939: see aenerallv Hum. .Res.Code s§ 11.001 (defining "department" asused in the code tomean the Department ofHuman Services), 32.021 (naming the department as the state agency designated to administer themedicaid program under chapter 32).

The focus of your concern is the discrepancy between the provisions of section 6401 of Public Law 101-239 and the
new subsection (g)of section 32.024 ofthe Human Resources Code. The federal provision requires in effect that children under age sixmeeting certain income criteria be covered by astate medicaid plan as ofApril 1, 1990. The state provision directs the Department ofHuman Services to extend coverage to children up to age six beginning in fiscal year 1991. You ask whether additional state legislation isnecessary inorder for the department now to extend coverage under the state plan to children under age six. It isour opinion that no further state legislative action is required inorder for the department to thus extend coverage under the state medicaid plan to comport with the new federal requirement.

1. The 7Ist Legislature also added in 1989 two other provisions denominated as subsections (g)ofHuman Resources Code section 32.024. Acts 1989, 71st Leg., ch. 1085, 03, at 4439: & ch. 1107, §1,at 4595.

2. The amendments made by section 6401 require that the income eligibility cap be set at not less than 133 percent of the income amounts setunder federal poverty guidelines. The 100percent figure provided for inthe new subsection (g) of section 32.024 is alimitation on the minimum rather than the maximum amount and does not, we think, restrict the department from increasing that amount to 133 percent in order to comport with the federal requirement.

p. 6192Mr. Ron Lindsey -Page 3 (JM-1174)

P When subsection (g) was added to section 32.024,

directing the department to‘cover under themedicaid program children up to four years of age in fiscal year 1990 and up to sixyears of age in 1991, federal lawdid not yet require such coverage. * 42 U.S.C. 51396a(a)(lO), (1) (as amended in 1988) (Supp. 1989 at 525, 541, 547, 552). We think that the purpose ofthe addition of subsection (g)was to require the department to extend coverage beyond that required by federal lawbut not to limit the department's authority to later increase such coverage asnecessary to comport with subsequently added federal requirements.

The stated purpose ofchapter 32of the code, which provides for the department's administration ofthe state's medicaid program, is "to provide medical assistance on behalf of needy individuals and to enable the state to obtain all benefits for those persons" authorized under federal law. Hum. Res. Code 332.001. Significantly, section 32.002(a) provides:

This chapter shall be liberallv construed and aoolied inrelation to.applicable federal laws and regulations sothat adequate and high quality health care may be made available to all children and adults who need the care and are not financially able to pay for it. (Emphasis added.)

Subsections (a), (b),and (c), of section 32.024, give the Department ofHuman Services broad authority: (1) to provide medical assistance topersons ifthe provision of such services isrequired by federal law as acondition of the state's receiving federal matching funds or ifthe persons are unable tomeet the cost ofthe services and federal matching funds are available for such purpose, and (2) to establish standards (not lower than theminimum standards required by federal law) governing the scope of coverage under themedicaid program.

It isour opinion that no additional state legislation isneeded inorder for the department tonow extend coverage under the state medicaid plan to children under six years of age soas to comport with federal requirements.3

P

P 3. Your question concerning the need for additional

state legislation may relate toa provision of subsection (c)(2) of section 6401 of Public Law 101-239. Subsection (Footnote Continued)

p. 6193Mr. Ron Lindsey -Page 4 (JM-1174)

SUMMARY

Additional state legislation is not required inorder for the Department of Human Services to extend coverage under the state medicaid plan to children under age six who meet certain income criteria.

v-y/z* /

JIM MATTOX Attorney General ofTexas MARY KELLER First Assistant Attorney General

JUDGE ZOLLIE STEAKLEY Special Assistant Attorney General

RENEA HICKS Special Assistant Attorney-General

RICK GILPIN Chairman, Opinion Committee
Prepared byWilliam Walker Assistant Attorney General

(Footnote Continued) (c)providing insubpart (1)that the section's requirements apply on and after April 1, 1990, provides insubpart (2) that if the U.S. Secretary of Health and Human Services determines legislation, other than that appropriating funds, isnecessary to enable the state plan to bebrought into conformity with the section's new requirements, the state has until after the next legislative session tobring its plan into conformity. Wedonot think that the extension provision insubpart (2)will be triggered inthe instant situation because we do not think additional state legislation isrequired inorder topermit the Department of Human Services tobring the state plan into conformity with the new federal requirement.

p. 6194