DAN MORALES

ATTORNEY GENERAL William R. Archer III, M.D. Commissioner ofHealth Texas Department ofHealth 1100 West 49th Street Austin, Texas 78756-3199



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Qkneral $Mate of QlTexaS May 29,1998 Opinion No. DM-477 Re: Whether the Texas Department of Health may allocate medicaid provider payments to satisfy a medicaid provider’s child-support obligation (RQ- 1046) Dear Commissioner Archer: Human Resources Code section 32.036 stipulates that a medical assistance (medicaid) provider payment may be paid only to the service provider unless the provider has assigned the payment consistently with 42 U.S.C. $ 1396a(a)(32). Under the federal law, a state may pay a medicaid provider’s assignee if the assignee is a governmental agency or if the assignment was established in accordance with a court order. You ask whether the Texas Department of Health (“TDH”) may “garnish” a service provider’s medicaid payment to satisfy the provider’s childsupport obligation. By “garnish,” we understand you to mean “allocate”~thepayment in accordance with an assignment authorized by 42USC. 5 1396a(a)(32). Weconclude the Department ofHealth may withhold all or part of the payment if the provider has assigned medicaid payments to a governmental agency or if the assignment is established by or in accordance with a court order issued by a court of competent jurisdiction.’ We do not determine in any particular case whether payments have been assigned as Human Resources Code section 32.036(c) and 42 U.S.C. 9 1396a(a)(32)(B) require. We understand the TDH is the operating agency forthe State’s medical assistance program? As such, the TDH pays service providers for medical assistance services rendered to medicaid recipients.3 We conclude, in answer to your question, that Human Resources Code section 32.036 permits the TDH to withhold some or all of a medical assistance payment due a service provider

‘Your question doesfiot implicate article XVI, section 28 of the Texas Constitution, which generally prohibits garnishing wages. Even assuming medicaid provider payments are “wages” for purposes of article XVI, section 28, that section excepts garnishment “for the enforcement of court-ordered child support payments.”

*See generally Hum. Res. Code ch. 32 (creating program to provide medical assistance on behalf of needy individuals). The medical assistance program is commonly known as “Medicaid.”

‘See id. 5 32.029.William R. Archer, M.D. - Page 2 (DM-477)

to satisfy the provider’s child-support obligation if the assignment satisfies 42 U.S.C. $ 1396a(a)(32)(B). Human Resources Code section 32.036 generally prohibits the assignment or garnishment ofpayments tomedicaid providers, unless the assignment ispermitted under 42 U.S.C. § 1396a(a)(32):(a) Neither medical assistance nor payments to providers of medical

assistance under this chapter aretransferable or assignable atlaw or in equity. (b) No money paid or payable under the provisions of this chapter is subject to garnishment.
. . (c) This section does not apply to the extent that it conflicts with the Social Security Act (42 USC. Section 1396a(a)(32)). The United States Code requires a stateplan for medical assistance topermit the assignment of medicaid provider payments ifthe assigmnent is to a governmental agency or if a court order establishes or orders the assignment (or in other specific circumstances not relevant here):

A State plan for medical assistance must-
(32) provide that no payment under the plan for any care or service provided to anindividual shah be made to anyone other than such individual or the person or institution providing such care or service, under an assignment orpower or attorney or otherwise; except that-

(A)
. . (B) nothing inthisparagraph shallbeconstrued (i)toprevent the making of such apayment in accordance with an assigmnent from the person or institution providing the care or service involved if such assignment is made to a governmental agency or entity or is established by orpursuant to the order of a court ofcompetent jurisdiction, or (ii)
. .4 A state’s failure to permit assigmnents allowed by federal law may lead to the loss of federal funding.5

..

‘42 USC. $ 1396a(a)(32).

‘See 42 USC. 5 1396 (authorizing federal government to appropriate funds for state medical assistance plans that United States Secretary of Health and Human Services has approved); Connecticut Hosp. Ass’n Y. O’NeiN, 793 F. (continued...)

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The legislature added subsection(c) in 1997to clear up an apparent conflict with 42 U.S.C. 5 1396a(a)(32).6 Prior to the 1997 amendment, acourt might apply section 32.036 and 42 U.S.C. 8 1396a(a)(32) and reach conflicting results. InIn reMissionary Baptist Foundation ofAmerica, Inc. v.First National Bank’the United StatesCourt ofAppeals, Fifth Circuit, compared thepre-1997 version ofHuman Resources Code section 32.036with 42U.S.C. 8 1396a(a)(32) and concluded that
“cases decided under them could
. . come out differently, depending upon which applied.“* According to the court, the state statute “is broader and more rigid in its prohibitions.‘* Arguably, before the 1997 amendment, Human Resources Code section 32.036 absolutely prohibited paying medicaid service provider payments to any assignee ofthe service provider. By contrast, 42 U.S.C. 5 1396a(a)(32)permits payments to certain assignees. Since the 1997amendment became effective, however, the state law comports with 42 USC. 5 1396a(a)(32). Whether aparticular transfer is an assignment that satisfies 42U.S.C. $ 1396a(a)(32)(B) is, of course, a fact question that cannot be resolved in the opinion process.“’ The transfer first must be avalid assigmnent. ” If it is the assigmnent must be either made to a governmental agency or , entity or established by or in accordance with the order of acourt ofcompetent jurisdiction. In the case of child-support payments, for instance, the assignment may be to a governmental entity (the

Supp. 47,49 (D. CQM. 1992) (stating that state my choose whether to participate in Medicaid program under Social Security Act, 42 U.S.C. $5 1396-1396v. but if state chooses to participate, it must comply with all federal statutory and regulatory requirements); see also Team Dep’t ofHuman Servs. v. Christian Care Cm., Inc., 826 S.W.2d 715,711 (Tex. App.--Austin 1992, writ denied) (stating that Medicaid program requires state and federal governments to cooperate to ensure that Texas qualifies for federal matching funds).

%SeeAct of May 7, 1997,7Sth Leg., R.S., ch. 216,s 1, 1997 Tcx. Gen. Laws 1086, 1086; see also Senate Comm. on Health & Human Servs., Bill Analysis, S.B. 614,75th Leg., R.S. (1997); House Comm. cmPublic Health, Bill Analysis, H.B. 1634,75th Leg., R.S. (1997) (companion bill to S.B. 614).

‘796 F.2d 752 (5th Cir. 1986). *Id.at 758; see also Senate Comm. on Health&Human Servs., Bill Analysis, S.B. 614,75th Leg., R.S. (1997) (noting Fifth Circuit decision that conflict between state law and federal law could result in different outcomes); House Comm. on Public Health, Bill Analysis, H.B. 1634,75th Leg., R.S. (1997) (companion bill to S.B. 614) (same).

‘In re Missionary Baptist Found. ofAmerica, 796 F.2d at 758.

.I ?%e, e.g., Attorney General Opinions DM-98 (1992) at 3, H-56 (1973) at 3, M-18; (1968) at 3.0-2911 (1940) at 2. “An assignment is a contract between two parties to transfer a property, right, 01 interest from one party, the assignor, to the other party, the assignee. See University of Tex. Med. Branch Y.Allan, 777 S.W.2d 450.452-53 (Tex. App.--Houston [14th Dist.] 1989, no writ). See generoNy 7 TEX. JUR. 30 Assignments $5 23-31 (1997) (discussing requisites and validity of assignments).

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state’s Title IV-D agency orthe “local registry”)‘2or itmay beestablished by or in accordance with an order ofthe court withjurisdiction over the child-support matter.” This result is entirely consistent with the purpose of the federal law. The United States Congress adopted what is now subdivision (32)(A) of42 U.S.C. 8 1396a(a) in 197214 and adopted the substance ofwhat isnow subdivision (32)(B) five years later.” The House Interstate andForeign Commerce Committee explained that the purpose ofboth the 1972 and 1977 amendments to the Social Security Act was to stop the assignment of medicaid receivables to “factoring” agencies, which purchased medicaid accounts receivable at a discount and allegedly sent the government inflated bills: In 1972, the Congress took action to stop a practice under which some

physicians and otherpersons providing services under medicare andmedicaid reassigned their medicare andmedicaid receivables to other organizations or groups. Under the conditions of these reassignments, the organizations or groups purchased the receivables for a percentage of their face value, submitted claims and received payments in their name. By 1972, it had become apparent that such reassignments were a significant source of incorrect and inflated claims for services paid by medicsre and medicaid. In addition, cases of fraudulent billings by collection agencies and substantial overpayments to these so-called “factoring” agencies were also found. Congress concluded that such arrangements were not in the best interest ofthe government orthebeneficiaries served by the medicare and medicaid programs. The Social Security Amendments of 1972,
. .therefore, included aprohibition against the payment for covered services to anyone other than the patient, his physician, or other person who provided the service, unless the physician orother person isrequired asa condition ofhis employment to turn his fees over tohis employer, orunless the physician or other person has an arrangement with a facility under which the facility bills for such services. Despite these efforts to stop factoring of medicare and medicaid bills, some practitioners and other persons have circumvented the intent ofthe law by use of a power of attorney. The use of a power of attorney allows the factoring company to receive the medicare ormedicaid payment in the name

‘%ze Fan. Code $§.158.103(7), .203(a).

“Seeid. $5 158.001, .011, ,105.

“See Social Security Amendments of 1972, Pub. L. No. 92-603, $236(b), 86 Stat. 1329,1415 (1972).

“See Medicare-Medicaid Antifraud and Abuse Amendments, Pub. L. No. 95-142, 5 2(a)(3), 91 Stat. 1176 (1977).
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of the physician thus allowing the continuation of program abuses which factoring activities were shown toproduce in the past. The bill would modify existing law to preclude the use of a power of attorney as a device for reassignments of benefits under medicare and medicaid, other than an assignment to a governmental entity or establishment, or an assigmnent established by or pursuant to the order of a court of competent jurisdiction. .I6 Assigning all orpart of amedical assistance payment topay achild-support obligation or arrearage is, in our opinion, vastly different from the factoring arrangements the federal law is designed to preclude. Although you ask only about the TDH’s authority to withhold some or all of the medical assistance payment under Human Resources Code section 32.036, webelieve your question raises a second issue. Assuming that acourt of competent jurisdiction has issued an order under Family Code section 154.007 or 158.001 directing an “employer” to withhold a percentage of a childsupport payor’s disposable “earnings,” is the TDH subject to it when paying medical assistance payments to service providers? We conclude that it is. First, we conclude that TDH is an employer in the context of Family Code chapter 158. Family Code sections 154.007and 158.001require acourt, in any proceeding ordering, modifying, or enforcing child-support payments, to direct achild-support obligor’s employer to withhold up to fifty percent of the obligor’s disposable earnings to pay child-support obligations and any arrearage.17 Family Code section 101.012 defines employer for chapter 158, and the definition encompasses relationships other than atypical “employment” relationship: “‘Employer’ means a person, corporation, partnership, workers’ compensation insurance carrier, governmental entity, the United States, or any other entity thatpays orowes earnings to anindividual.
. . .” Assuming forthe moment that medicaid payments to aservice provider areearnings, the TDHis agovernmental entity that pays earnings to an individual. Second, we conclude that medicaid payments to service providers areearnings in the context ofFamily Code chapter 158. The term earnings is defined, for purposes ofchapter 158, in Family

16HR REP.NO. 393(11), 95th Gong., 1st Sess. 48-49 (1977), reprinted in 1977 U.S.C. 3039, 3051-52; see also id. at 1,reprinled in 1977 U.k. 3039, 3040; In re Missionary Baptist Found. ofAmerica u First Nat? Bank, 796 F.2d 752,757 1x.6(5th Cir. 1986).

“See ako Fam. Code 5 158.009 (establishing maximum amount that may be withheld from earnings). Family Code sections 154.007 and 158.001 authorize the state’s “Title N-D agency,” which is the Offkx of the Attorney General, see id. $ 231.001; see also id. 5 231.0011, to issue orders directing an employer to withhold a percentage of a child-support obliger’s earnings. We do not consider in this opinion whether an order of the state’s Title N-D agency is a court order for purposes of 42 USC. 5 1396a(a)(32)(B).

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Code section 101.011. Like the applicable definition of employer, the definition of earnings is broad, encompassing more than hourly wages or annual salary:

“Earnings” means apayment to or due an individual, regardless of source and how denominated. The term includes aperiodic or lump-sum payment for: (1) wages, salary, compensation received as an independent contractor, overtime pay, severance pay, commission, bonus, and interest income; (2) payments made under apension, an annuity, workers’ compensation, and a disability or retirement program; and (3) unemployment benefits. Certainly, apayment to a medical assistance provider for professional services he or she rendered to amedicaid recipient is “a payment to or due” the provider.

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SUMMARY Consistent with Human Resources Code section 32.036, the Texas Department ofHealth may allocate all orpart of a service provider’s medical assistance payments to satisfy the provider’s child-support obligation ifthe service provider has assigned the payment to a government ~agencyor ifthe assigmnent was established by orin compliance with a court order issued by acourt ofcompetent jurisdiction. The Department of Health is an “employer” subject to a court order issued under Family Code section 154.007 or 158.001 when itpays medical assistance payments to a service provider. Additionally, medicaid payments are “earnings” subject to such acourt order.

DAN MORALES Attorney General ofTexas JORGE VEGA First Assistant Attorney General SARAH J. SHIRLEY Chair, Opinion Committee Prepared by Kymberly K. Oltrogge Assistant Attorney General

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