             THE    ATTORNEY       GENERAL
                       OF  TEXAS

                        March 2, 1988




Ms. Barbra Walsh                        Opinion No. JM- 866
Ward County Auditor
Monahans, Texas   79756                 Re:     Whether Attorney
                                        General Opinion   Mw-393
Honorable James L. Rex                  (1981) has been modified
Andrews County Attorney                 by the Indigent Health
Andrews Courthouse                      Care and Treatment   Act
Andrews, Texas   79714                  (RQ-1329)

Dear   Ms.   Walsh and Mr. Rex:

     You both ask whether the Indigent Health Care and
Treatment  Act, article 4438f, V.T.C.S.,     overruled   or
modified Attorney General Opinion MW-393 (1981), in which
this office held that a county could not pay visiting
physicians on the medical staff of the county hospital for
treating indigent patients at the hospital and that a
county hospital could not pay salaried staff physicians
additional compensation for treating indigent patients   at
the hospital.  See also Attorney   General Opinion   O-2422
(1940). The basis for MW-393 was the following     language
excerpted from article 4480, V.T.C.S.:

            The board shall also appoint a staff of
         visiting physicians who shall serve without
         pay from the county, and who shall visit and
         treat hospital patients at the       request
         either   of    the  managers   or   of   the
         superintendent.

            Said board shall fix the salaries of the
         superintendent and all other officers    and
         employees within the limit of the appropria-
         tion made therefore by the commissioners
         court, and such salaries shall be compensa-
         tion in full for all services rendered.

     The Indigent Health Care and Treatment Act, article
4438f, V.T.C.S.,  specifies the obligations of counties,
public hospitals,  and hospital districts  for providing




                             P. 4199
Ms. Barbara Walsh
Honorable James L. Rex
Page 2 (JM-866)                                                        ,

                                                                   1
medical care for indigents.      A county hospital     is a
"public hospital" for purposes of the Indigent Health Care
and Treatment Act. V.T.C.S.    art. 4438f, 51.02(10);   art.
4478. Therefore,     a county hospital is governed by the
provisions applicable to public hospitals rather than the
provisions applicable    to counties.   a    V.T.C.S.   art.
4438f, 552.01, 3.01, 10.01, 11.01. See also V.T.C.S. art.
4484: Attorney   General Opinion M-379 (1969) (bills and
accounts of county hospital     are paid and approved     by
commissioners court). The act requires a public hospital
to provide specified services to persons who live within
the area that the public hospital has a legal obligation
to serve. Id. 510.01. Because a county hospital has a
legal obligation to serve the county in which the hospital
is situated,    V.T.C.S. art. 4486, it    must provide   the
services   specified   in the Indigent Health    Care    and
Treatment Act to indigent persons who live within        the
county.

     The services a public hospital is required to provide
3x3 i?~*L:amtL -tin&
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art. 4438f,    5511.01,   3.01.    The  Department   of   Human
Resources has the authority       to promulgate    rules more
specifically defining the required services.       Id.   91.06.
                                                                   ?
The act contains the following provisions            regarding
provision of services by a public hospital:

         Sec. 11.03.    (a) A public hospital     or
       hospital district may arrange to provide
       health care services through a local health
       department, a publicly    owned facility,    a
       contract with a private provider   regardless
       of the provider's   location, or through the
       purchase   of     insurance   for    eligible
       residents.

         (b) A public hospital or hospital district
       may affiliate with other public hospitals or
       hospital districts  or with a governmental
       entity to provide   regional administration
       and delivery of health care services.




      1. A public hospital is also required to continue
providing any additional health care services    that it
provided to eligible residents during the operating  year
that ended before January 1, 1985.




                           p. 4200
     Ms. Barbara Walsh
     Honorable James L. Rex
     Page 3 (JM-866)



              Sec. 11.04. A public hospital may select
            one or more     providers  of health    care
,-          services and, except in an emergency,   when
            medically inappropriate, or when care is not
            available,  require eligible residents    to
            obtain care from a provider.

     V.T.C.S. art. 44381, 5511.03, 11.04.

          You suggest that those provisions are in conflict
     with article 4480, as interpreted by Attorney       General
     Opinion MW-393. As MW-393 pointed out, article 4480 deals
     with two types of doctors who may be on the medical   staff
     of a county hospital:       (1) visiting  physicians,   who
     receive no pay, and (2) hospital employees, who receive a
     salary in full compensation for all services they render.
     Attorney General Opinion MW-393 concluded,   based on the
     clear language of     article 4480,    that if     visiting
     physicians treat indigents at the hospital,      they may
     receive no pay for such treatment and that if salaried
     physicians treat indigents at the hospital, their salary
     is their only compensation for doing so. Nothing in the
     Indigent Health Care and Treatment Act conflicts with the
     language of article 4480 or with the specific holding    of
     Mw-393.  Therefore, the Indigent Health Care and Treatment
     Act did not affect the specific holding of MW-393.

          There is, however, dicta in MW-393 that suggests that
     a county hospital's   only authority 'to pay for physician
     services is its authority under article 4480.        To the
     extent that dicta in MW-393 suggests that conclusion,     it
     has been modified by the Indigent Health Care            and
     Treatment Act. Section 11.03 of the act gives a county
     hospital   authority  to pay for physician      services  at
     locations other than the county hospital.     *     V.T.C.S.
     art. 4491 (a 1913 statute allowing a county hospital      to
     contract with a private hospital for the care of indigent
     patients).   Also, the Indigent Health Care Act may require
     a county hospital to provide health-care     services that
     salaried or visiting physicians are unable to provide.    In
     such circumstances,   we think that the act authorizes     a
     county hospital    to pay physicians    other than     those
     contemplated by article 4480 for providing the required
     services.

                              SUMMARY

               The Indigent Health Care and Treatment
            Act, article 4438f,    V.T.C.S., did   not
            overrule the holding of Attorney   General



                                p. 4201
Ms. Barbara Walsh
Honorable James L. Rex
Page 4 (JM-866)



       Opinion MW-393 (1981). A county hospital is
       not authorized to pay a visiting    physician
       for his services as a visiting    physician,              -,
       and a county hospital  is not authorized    to
       pay a salaried physician additional   compen-
       sation for treating indigent patients at the
       hospital.   To the extent, however,      that
       dicta in MW-393    suggests that a county
       hospital's  only   authority  to    pay    for
       physician services is article 4480, it has
       been modified.




                                     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

RICK GILPIN
Chairman, Opinion Committee

Prepared by Sarah Woelk
Assistant Attorney General




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