Honorable Chet Brooks          OpilliOll   No. JM-1169
Chairman
Health and Human Services      Re: Authority of the Texas
   Committee                   Department of Health to reduce
Texas State Senate             the   financial    eligibility
P. 0. Box 12068                criteria for the Chronically
Austin, Texas   70711          Ill and Disabled Children's
                               Program   (RQ-1914)
Dear Senator Brooks:
     You ask about and enclose a copy of a letter from the
Texas Commissioner of Health to providers of health care
services to children under the Chronically Ill and Disabled
Children's (CIDC) Program. The letter, dated November 15,
1989, cited budget deficiencies and explained:
        In an effort to decrease expenditures without
        changing coverable conditions and amending
        program rules and policies extensively, the
        CIDC program has implemented the following
        administrative    procedures    which    were
        effective November 1, 1989:
        * Income eligibility reduced from 200%           to
          160% of federal poverty income; and
        * overpayments and unauthorized payments will
          be recouped as payer of last resort for
          dual coverage by insurance, Medicaid or
          other third-party payers.

The effect of the income eligibility reduction is             to
decrease the number of persons eligible for the program.
     Your first question is:
        In the absence of adoption of a rule by the
        Texas Board of     Health, does the    Texas
        Department of Health's reduction of      the
        financial eligibility criteria for the CIDC
        program from 200 percent to 160 percent of


                               p. 6169
Honorable Chet Brooks - Page 2   (JM-1169)




       the federal poverty income level violate
       4 35.005(a)(l) of the Health and Safety Code
       which provides that the Board by rule shall
       define medical, financial and other criteria
       for eligibility to receive services?
The CIDC program has been governed by article 4419c,
V.T.C.S., which has been recodified as chapter 35 of the
newly enacted Health and Safety Code. Section 35.005(a)(l)
of the code provides:
           (a) The board [of Health) bv rule shall:
                (1) define medical, financial, and
           other criteria for eligibility to receive
           services. (Emphasis added.)
The language of that provision is clear:     criteria for
eligibility are to be defined by rule of the board.   See
w    Health & Safety Code 5 11.013 (Board of Health shall
adopt policies and rules).
     Also, the legislature has foreseen the possibility of
budget limitations and directed that "the board by rule
shall establish a system of priorities relating to the types
of services or the classes of persons eligible for the
service8.s Health & Safety Code f 35.003(c).
     Priority levels based on the federally defined poverty
income level have been adopted by the board in accordance
with sections 35.005(a)(l) and 35.003(c) as a rule, which is
currently found at 25 T.A.C. 5 37.83(2)(A)(iii). The board,
in the adoption of that rule, attempted to delegate the
adjustment of    priority levels    through the    following
language:
        Income guidelines are based on percentages of
        the current federal poverty guidelines and
        may be adjusted by the program with the
        consent of the commissioner to meet budgetary
        limitations.
35 T.A.C. 5 37.83(2)(A)(ii.i). Apparently, this provision in
the rules was viewed by the commissioner and the program
as authorization for the actions indicated in the commis-
sioner's letter.
     The legislature has granted the board the authority to
delegate any of its powers or duties, "except that the board
may not delegate the power or duty to adopt rules." Health



                             p. 6170
    Honorable Chet Brooks - Page 3 (JM-1169)




    & Safety Code 0 11.013(b).      Where the legislature has.
    generally directed the board to enact rules for the per-
    formance of its duties and expressly prohibited the delega-
    tion of that duty, the board may not, by means of its own
    rule, attempt to contravene that legislative prohibition.
    See. e.aL, Teacher Retire-t   Svs. v. Duckworth, 260 S.W.2d
    632, 636 (Tex. Civ. App. - Fort Worth 1953), Rnin~o~
               4 S.W.2d 98 (Tex. 1954); see also Care v. Bo r
               8 in Ootometrv, 401 S.W.2d 639 (Tex. Civ. App. -
    Dallas 1966), sv'd on other arou,      412 S.W.2d 307 (Tex.
    1967). Thus, we believe that the redesignation of eligi-
    bility standards based on the federally     defined poverty
    level may only be accomplished through rules enacted by the
    board.
         In your second question, you ask:
            Does the language of the proposed amendments
            to 25 TAC f 37.86 conform to the requirements
            of S 35.003(c) of the Health and Safety Code
            which provide that if budgetary limitations
            exist, the Board by rule shall establish a
            system of priorities relating to the types of
            services or classes of persons eligible for
            the services?   In the alternative, do the
            proposed amendments    to 25    TAC   5 37.86
            constitute an overly broad delegation of
            statutory authority by the Texas Board of
            Health to agency staff?
         As noted above and in your question, section 35.003(c)
    of the Health and Safety Code requires that where budgetary
    limitations exist, it is the duty of the board by rule   to
    establish a system of priorities based on the types of
    services and the classes of persons eligible for services.
    The proposed.rule reads in part as follows:
               (c) Limitations. The proaram may limit
            or restrict services to remain within avail-
            able funding and to provide effective and
            efficient administration.   The proarm   may
            establish priorities by type of service for
            budgetary reasons. (Emphasis added.)
    15 Tex. Reg. 16 (1990) (prop. amend. to be codified at 25
    T.A.C. 5 37.86).   We assume that 'the program" denotes
    department staff rather than the board. If so, the proposed
    rule attempts to delegate a statutory responsibility that
P   has been assigned to the board alone and is therefore
    invalid.
r



                                 p. 6171
Honorable Chet Brooks - Page 4   (JM-1169)




                      SUMMARY
          It is the duty of the Board of Health to
       enact rules for the Chronically Ill and
       Disabled Children*8 program. The board must
       by rule define eligibility criteria for the
       program and, in case of budgetary limita-
       tions, establish    by rule    a system    of
       priorities both for the types of services
       available and the classes of persons eligible
       for those services. Any attempt by the board
       to delegate these rule-making responsibi-
       lities is invalid.




                                   JIM     MATTOX
                                   Attorney General of Texas
MARYEBLLER
First Assistant Attorney General
JUDGE ZOLLIE STBAELEY
Special Assistant Attorney General
RENEA HICKS
Special Assistant Attorney General
RICK GILPIN
Chairman, Opinion Committee
Prepared by Karen C. Gladney
Assistant Attorney General




                               p. 6172
