                                     July 14,    1987




Iionorabl.   Chet Brooks                         Opinion    No. JM-746
Chairman
Committee on Eealth and                          R.:     Obstetrical  and post-natal
    Elman services                               services   under the Indigent liaalth
Texas State Senate                               Care Act
P. 0. Box 12068
Austin,    Texas   78711

Dear Senator      Brooks:

       You ask several        questions    about the Indigent        FIealth Care Ate
[hereinafter      the act].      article      443gf.    V.T.C.S.     See art.     443af.
91.02(10)     (defining     “public     hospital”);     see also Attorney       General
opinion    m-626      (1987).     Your first        question    is whether a public
hospital    is required to provide obstetrical            and post-natal   services    to
eligible   persons.

        Public     hospitals       must provide,          to   eligible      residents.       the
Inpatient      and outpatient       services     that a county is ropuired to provide
to indigents        under section         3.01(a)(l)      of the act.          See also art.
4430f.     $11.03(a)      (a public        hospital     may provide       required     services
through other health-care               providers);      art.    4438f,    112.01 (a public
hospital      is liable    for required        servicer     provided by other entities).
Section     3.01.(a)(l)        requires     that counties        provide      “inpatient      end
outpatient       hospital     services     as limited by this title.”              It does ndt
list    specific    services.         gather,    the Departmsnt of Realth is required
to define       the required       services.       V.T.C.S.    ert. 4438f. 11.06(a).           To
fulfill       that    obligation.         the    department       has    promulgated       rules
governing       required     inpatient       and outpatient        hospital     services.      40
T.A.C.     914.201(l).       (2) (1986).       Those rules are general,             and do not
list    specific     types of required         medicel care.         The rules do provide,
however. that “msdicelly             necessary”      services    are required.        40 T.A.C.
914.201(l).         Medically      necessary      services     for an eligible         pregnant
woman would unquestionably                include     some obstetrical        and post-natal



        1. A county subject to the act must provide not only inpatient
and outpatient hospital services  but also other services  including
physician  services.  Art. 443gf. $3.01.




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Bouorable     Chat   Brooks - Page 2 (J&746)




services.       See Final Report of the Tesk Force on Indigent Health Care
(December 19m         (indiceting    that maternity    care was one of the main
concerns of the task force);         see also art. 4438f, 81.06(a)    (department
is to define services         in accordance with department rules relating       to
Medicaid progrsm):        40 T.A.C. 94.1804 (1985) (pregnint      women who meet
other    applicable     eligibility    standards    are eligible  for Medicaid);
V.T.C.8.    art. 4447~ (Haternal and Infant Eealth Improvement Act).            The
dateruination      of what specific      services   era medically necessary   is a
question of fact and cannot be resolved           in the opinion process.


      Your second       question   is:

                 Does a public      hospital    thet provided         obstet-
             rical     and    post-natel     s.rvic.s        to     eligible
             residents    during the operating        period    that     ended
             prior to January 1. 1985. violate          section      11.01(b)
             of the act if the hospital          does not continue           to
             provide thoss services?

Section     11.01 of    the ect provides,      in part:

                  (a)   Each public    hospital    shall   provide   the
              inpatient    end outpatient       hospital    services   a
              county is required      to provide     under Subdivision
              (1) of Subsection    (a) of Section 3.01 of this Act.

                 (b)   If a public   hospital     provided    edditionel
             health care services     to eligible     residents    during
             the operating   year that ended before          January 1,
             1985. the hospital    shall continue to provide those
             s.rvic.s.

                  (c)   A public    hospital     may provide      additional
              health    care sarvices.

       If  the obstetrical        and post-natal      services     in question     were
medically    necessary     services   required under the Indigent        Realth Care
Act,    a public hospital       would violate     section    11.01(a),  not section
11.01(b).    if it discontinued      provision   of such services.       If a public
hospital    provided     obstetrical     end post-natal        services   during    the
operating    year that ended before         January 1. 1985. subsection         (b) of
section   11.01 would require the public hospital            to continue to provide
those services,     even if those services       would not otherwise be required
under section     11.01(e)   of the act.




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Eionorable Chet Brooks - Page 3           (JM-746)




     Your third      question   is:

              Does section    13.02 of the act require a public
           hospital   to make public notice     and hold a public
           hearing before    the hospital  can reduce the scope
           of its   services   or further   restrict   eligibility
           for services?

Section   13.02 of    the act provides:



                 (a)    A   public    hospital   may not    change   its
            eligibility       standards   to make the standards more
            restrictive       and may not reduce     the health     car.
            services      it offers     unless  it complies    with the
            requirements       of this section.

               (b) Not later then the 90th dey before a change
           would     take    effect,     the    public   hospital     must
           publish      notice    of    the proposed      change     in    a
           newspaper      of   general     circulation    in the area
           served by the hospital         and set a date for a public
           hearing on the change.           The published    notice must
           include     the date.     time. and place of the public
           meeting.      This notice does not replace          the notice
           required     by the open meetings law. Chapter              271,
           Acts of the 60th Legislature.               Regular    Session,
           1967     (Article      6252-17,     Vernon's    Texas     Civil
           Statutes).

                (c) Not later than the 30th day before the date
            on which the change would take effect,      the public
            hospital   shall conduct a public meeting to discuss
            the change.      The maeting   shall  be held      et a
            convenient    time in a convenient   location     within
            the area the hospital    has e legal    obligation     to
            serve.    Members of the general public may testify
            at the meeting.




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Bonoreble   Chet Brooks   - Page 4      (JI-746)




                (0) The commissioners   court, city  council,   or
            board of -gers      or other governing body of the
            hospital  must formally adopt the finding     that the
            change does not have a detrimental          impact on
            access to health care.    (Bmphasis added).

      Section 13.02 of the act sxplicitly       requires   a public hospital     to
give notice    and hold a public hearing before the hoapitel            may reduce
the services    it offers  or before the hospitel      may make its eligibility
standards    more restrictive.       In    order    to   reduce    services     the
appropriate    governmental   body must determine that "the change would
not have a detrimentel        impact on access       to health     care   for   the
residents   the hospital   serves."   V.T.C.S.   art. 4438f. 813.02(d).

       Also in regard to section        13.02. we caution that its provisions
do not allow a public hospital        to make its eligibility          standards more
restrictive     than those established       by the Department of Health under
section     1.06 of the act.     Section 10.02(b)      provides    that a person is
eligible     for assistance   from a public       hospital    if that persdn meets
the basic       income and resources         requirements      established     by the
Departmane of Eealth under section           1.06 of the act or if that person
meets a lass restrictive       income and resources        standard adopted by the
public hospital.       Section 10.02(f)     provides es follows:

                A public   hospital    may adopt a less restrictive
            incoma end resources        standard  at any time.      If
            because of a change in the income and resources
            requirements    established     by the department under
            Section 1.06 of this Act the standerd adopted by a
            hospital    becomes stricter      than the requirements
            established    by the department,     the hospital   shall
            change its stendard to et leest          comply with the
            requirements    established    by the department.

The act does not permit a public hospital         to set eligibility     standards
that are more restrictive       than those set by the Department of Health.
Also. if the Department of Eealth changes its standards              to make them
less restrictive,     a public hospical    must also change its standards        if
they are more restrictive        than the new standards established          by the
department.     See Bill Analysis to S.B. No. 1, 69th Leg.. prepared for
Senate Commit=       on Eeelth and Buman Services,       filed    in Bill File to
S.B. No. 1, Legislative        Reference   Library   (one purpose of Indigent
Eealth Care Act was to define "indigency").            Thus, a public hospital
may make its eligibility      standards more restrictive       in accordance   with
the procedures    set out in section     13.02 only if the new standards set
are no more restrictive       than those established       by the Department of
Health.




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    honorable   Chet Brooks - Page 5 (JM-746)



n



                                         SUMHARY

                    Under the Indigent          Eealth Care Act, article
                4438f.    V.T.C.S..     a public hospitelmust        provide to
                eligible     residents     madically     secassary     inpatient
                end      outpatient       health-care        sarv1c.s.        The
                determination        of    whet    specific      services     era
                medically      necessary    is a question        of fact.        A
                public hospital       must continue       to provide services
                it provided      during the operating         year that ended
                before    January 1, 1985.          In order to reduce the
                services     it   offers    or to make its -eligibility
                standards more restrictive,           a public hospital      must
                give     notice     and hold        a public       hearing      in
                accordance with section         13.02 of the act.




                                                       Attorney   General   of Texas

    MARY KELLRR
    Executive   Assistant    Attorney     General

    JUDGEZOLLIE STBABUT
    Special Assistant Attorney          Generel

    RICII GILPIN
    Chairman, Opinion       Committee

    Prepared    by Sarah Woalk
    Assistant    Attorney General




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