                THE    ATTORNEY       GENERAL
                          OF  TEXAS

                          September 7, 1989

JlX Mxl"roX
.%lTo*SEY G&SERAL.
   Honorable John Owens          Opinion No.    JR-1094
   Henderson County Attorney
   Courthouse                    Re: Whether a county may re-
   Athens, Texas 75751           cover expenses incurred under
                                 the Indigent Health Care Act
                                 (RQ-1522)
   Dear Mr. Owens:
        You ask about the authority of a county to seek reim-
   bursement for money it has spent pursuant to the provisions
   of the Indigent Health Care and Treatment Act, article
   44381, V.T.C.S. You explain that Henderson County has spent
   a large sum of money for medical treatment for a particular
   individual. The individual has now filed a personal injury
   action against a private individual, and you ask whether the
   county may seek reimbursement if the individual receives a
   settlement or judgment that covers his medical expenses.
        The Indigent Health Care and Treatment Act requires a
   county to pay for medical care for indigent residents of the
   county who are not residents of a hospital district or the
   area a public hospital has an obligation to serve.       Id.
   tit. 2. The act requires that the Department of Human
   Services "establish eligibility standards and application,
   documentation, and verification procedures for counties 'to
   use in determining eligibility." &    5 1.06(a).
        Nothing in the Indigent Health Care and Treatment Act
   or the current regulations purports to place a lien on or
   to provide for the assignment of any potential right of
   recovery in a personal injury action.   Cf. Hum. Res. Code
   9 32.033 (filing of an application for receipt of medical
   assistance constitutes an assignment of the applicant's
   right of recovery from another person for personal injur
   caused by the other      person's negligence or    wrong).?i


      1.   For examples from other jurisdictions of statutory
   liens   on or assignments of later-acquired property of
                                          (Footnote Continued)
 Honorable John Owens - Page 2   (JM-1094)




 Indeed, nothing in the Indigent Health Care and Treatment
 Act or current regulations would require an indigent to
 report any unsettled tort claim on an application for
 assistance under the Indigent Health Care and Treatment Act.
 See a-nerallv 40 T.A.C. ss 14.104 and 14.105 (income and
 resources standards under Indigent Health Care and Treatment
 Act) .2
       Although the act does not expressly provide for a lien
  or an assignment in the context you ask about, it is clear
. that the legislature did not intend for counties to pay for
  medical care when another source of payment exists.      For
  example, section 1.06(c)(5) requires that an applicant
  provide information about "the existence of        insurance
  coverage or other hospital or health care benefits for which
  the applicant is eligible."      Also, section 2.02(b) of
  article 4438f provides:
            The county is the payor of last resort
         and shall provide assistance only if    other
         adequate public or private sources of payment
         are not available.



 (Footnote Continued)
 welfare recipients, see Conn. Gen. Stat. Ann.      55 17-83e,
 17-83f (West 1988) (lien on later acquired prq;rty         or
 estate for AFDC or delinquent child support);         . Ann.
 Stat. ch. 23, para. 11-22 (Smith-Hurd 1988) (charge on
 personal injury claims for repayment of public medical
 assistance): Minn. Stat. Ann. 5 393.10 (West 1968 & Supp.
 1989) (county lien on any cause of action o: 4rf;o;
 furnished medical assistance): N.J. Stat. Ann.          : -
 (West Supp. 1988) (provision that application for AFDC
 operates as assignment of other rights to support): N.Y.
 Sot. Serv. Law 5 104-b (McKinney 1983) (lien on suit for
 personal injury as repayment of public assistance): id.
 8 366 (McKinney 1983 & Supp. 1988) (repayment of costs of
 medical care and services): Pa. Stat. Ann. tit. 62 5 403
  (Purdon Supp. 1988) (assignment of property rights to state
 as prerequisite for public assistance).
     2. The regulations of the Department of Human Services
  list "lump-sum payments" as a type of resource. 40 T.A.C.
  5 14.105(c)(ll). We think it is clear from the examples of
  OOlump-sumpayments," however, that a V1lump-sumpayment" is a
  payment the receipt of which is certain.




                                 p. 5733
     Honorable John Owens - Page 3 (JM-1094)




     Section 2.03(a)(3) provides that a county has an obligation
     to provide indigent health care only if 'no other adequate
     source of payment exists."    Also, a rule adopted by the
     Department of Human     Services provides that     mandatory
     services under the Indigent Health Care and Treatment Act do
     not include services and supplies that:
             are payable by or available under any health,
             accident, or other insurance coverage; by
             any private or other governmental benefit
             systems; hv anv leaallv liable third nartv;
             or under other contract. (Emphasis added.)
     40 T.A.C. S 14.202(b)(7).   All those provisions, however,
     apply to sources of payment that "exist" or "are available"
     or for which a third party is "legally liable." A potential
     award in a personal injury suit does not yet exist and it is
     therefore not available.   Further, no legal liability has
     been determined.   Therefore, even though we think it is
     clear that the‘ legislature would not have intended for an
     indigent to be able to retain a windfall in the circum-
     stances you ask about, we do not think the provisions cited
     above cover a potential, rather than actual, right to
     reimbursement. The question, then, is whether a lien on or
     an assignment of a future personal injury recovery can be
     implied from the provisions of the Indigent Health Care and
     Treatment Act.
'I
           It is the rule in Texas that a lien on personal pro-
     'perty or real estate arises only by virtue of contract or
     statutory provision. Ro*on      v , Gibson, 274 S.W. 292, 293
      (Tex. Civ. App. - Waco 1925, no writ): see also Johnson v.
     Second Iniurv w,      688 S.W.2d 107, 108 (Tex. 1985) (right
     of subrogation does not exist except where clearly mandated
     by the legislature). Also, in 1961 this office considered
     whether a county could acquire a lien on the real estate of
     paupers for whom the county provided support.         Attorney
     General Opinion WW-1150 (1961). This office concluded that
     a county could not acquire such a lien. The basis for that
     conclusion was that a county has only those powers expressly
     or impliedly conferred on them by the constitution or
      statutes. S e aener lly Annot., Personal Injury Recovery as
     Affecting Elzgibilitt    for, or Duty to Reimburse, Public
     Welfare Assistance, 80 A.L.R.3d 772 (1977).       In light of
      those authorities, we must conclude that under the current
      statute and regulations, which make no provision for a lien
      on or an assignment of a future personal injury recovery, a
      county does not have a right to reimbursement in the context
      you ask about.




                                   p. 5734
Honorable John Owens - Page 4   (JM-1094)


                                                               -‘,

     Although current Department of Human Services regula-
tions under the Indigent Health Care and Treatment Act do
not require an assignment in the context you ask about, we
do think that the Department of Human Services has authority
to promulgate a rule requiring that an applicant for county
as&stance under the Indigent Health Care and Treatment Act
assign any personal injury recovery or right to recovery for
medical expenses to the county, to the extent of the public
funds expended.
     The department is required to set eligibility standards
and application procedures "in accordance with" department
rules relating to the AFDC-Medicaid program. V.T.C.S. art.
4438f, 5.1.06(a).   Section 32.033 of the Human Resources
Code, which governs the Medicaid program, provides in part:
           (a) The filing of an application for or
        receipt of medical assistance constitutes an
        assignment of the applicant's or recipient's
      - right of recovery from:
              (1) personal insurance;

              (2)   other sources; or
              (3) another person for personal injury
           caused by the other person's negligence or
           wrong.
See also 40 T.A.C. 9 45.501 (rule restating provision set
out above). Because the department is authorized to adopt
regulations governing eligibility for and application for
indigent health care that are "in accordanceWq with the
department's standards and     procedures for    determining
eligibility in the AFDC-Medicaid program, we think it is
within the department's authority to adopt a rule under the
Indigent Health Care and Treatment Act that tracks the
Uedicaid rule set out in section 32.033 of the Human
Resources Code.
     It has been suggested that individual counties have
independent authority to adopt such a rule under section
1.06(h) of the Indigent Health Care and Treatment Act, which
provides:
           A county may    use the standards     and
        ;:,,;Fres established by *the department a;i
                use less restrictive standards
        procedures.                                            A-.




                                p. 5735
      Honorable John Owens - Page 5    (JM-1094)




      See also V.T.C.S. art. 4438f, 9 2.04(b).      Although that
      provision allows a  county to  adopt its  own standards and
      procedures, it allows a county to do so only if the county's
      own standards and procedures are less restrictive than those
      of the Department of Human Services. In the absence of a
      department regulation requiring assignment of potential
      personal injury recoveries, a county would have no authority
      to adopt such a requirement since such a requirement would
      be more restrictive than the department's requirements.

                             SUMMARY
                   A county has no authority, under current
              law, to seek reimbursement from an indigent
              whose medical expenses are paid by the county
              in accordance with the Indigent Health Care
              and Treatment Act     and who    subsequently
              recovers damages in a personal injury suit.
              However, the Department of Human Services
              does have authority under the Indigent Health
              Care and Treatment Act to promulgate a rule
              requiring that applicants for county assis-
              tance under the Indigent Health Care and
-..           Treatment Act assign their rights to reim-
              bursement from another person for personal
              injury caused by the other personjs negli-
              gence or wrong.




                                           JIM     MATTOX
                                           Attorney General of Texas
      MARY KELLER
      First Assistant Attorney General
      mu MCCREARY
      Executive Assistant Attorney General
      JUDGE ZOLLIE STEARLEY
      Special Assistant Attorney General
      RICK GILPIN
      Chairman, Opinion Committee
      Prepared by Sarah Woelk
.-    Assistant Attorney General




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