                             April     12, 1951

Hon. Geo. W. Cox, M.D.
State Health Officer
State Department of Health
Austin, Texas                          opinion    No. V-1168
                                       Re: Anthority o? the State
                                           Department of Iiealth
                                           550 defray the cost of
                                           diagnostic  procedures
                                           to~determIne eliglbll-
                                           ity of children for
                                           crippled 'ch.lldren?a
Dear Dr. Cox:                              care and trea@ent.
             Your request for an opiniofi relates     to the au-
thority    of the Crippled Children's    Division of tile State
Department of Health to finance diagnostic        procedures to
determIne if a child comes within the proviqions         and in-
tent of House Bill 754, Acts 49th Leg., 1945, ch.216, p.
298 (Art. 4419c, V.C.S.),      without first   having prodqred
a certificate     of the county judge to the effect     that the
child’s    parents are financially    unable to provide the
care and treatment embraced in the act.
              The Federal Government has provided a grant to
States for the purpose of enabling each State to extend
and improve services       for locating     crippled   children and
for providing medical, surgical,           correatlve,   and other
services     and care, and facilities       fork diagnosis,   hospi-
talization,     and aftercare     for cNldren who are crippled
or who are suffering       from conditl ns,whlch lead to crlp-
pllng.      (42 U.S.C.A.     811 711-714.9
           Pursuant to the crippled  children’s  program
above referred   to, the Federal Security Agency has pro-
mulgated certain rules and regulationti,   the pertinent
regulation    or the purpose of this discussion  being Sec-
tion 200.9, f which Is as follows:


1.   42 Code Fed. Regs.     Sec.     200.9   (~ig,&gC&.Pocket.   Supp.)
Hon. Geo. W. Cox, page 2       (V-1168)


            “State Plans for Crippled Children’s
     Services shall provide that the diagnostic
     services    under the plan will be made avail-
     able within the area served b each dlag-
     noetic center to any child (a 3 without charge,
     (b) without restriction     or requirement   as to
     the economic status of such child’s      family or
     relatives    or their legal residence,   and (c)
     without any requirement for the referral       of
     such child by 8ny Individual      or 8gency.’

             In the furtherance      of this program, an act was
passed by the Texas Legislature         creating a physical re-
storatlon    service   for Crippled ohildren In the State De-
partment of Health.        Art. 4419c, supra.     This act makes
provisi.ons for locating,      examining, and physically       re-
storing arippled children of the State.           section 3 of
Article    4419c empowers the Crippled Children’s         Mvlsion
to “take census, make surveys and establish           permanent
records of crippled children         . . . and to take such other
steps as may be necessary        In order to accomplish the’pur-
poses of this Act.”        As to care 8nd treatment of crippled
children,    Section 4 of the act places a llmltatlon          thereon
by requiring      the county judge of the county in which the
child resides to certify        to the State Department of Health,
upon sworn petition       of the parents, that the parents are
financially     unable to provide such care and treatment. It
Is further provided that the county judge must also certi-
fy that one or more physicians         regularly  practicing    under
the laws of the State of Texas have examined the child and
have recommended such child as coming within the PPOQiSiOnS
and intent     of this act.     Section 8 of the act empowers and
directs    the State Department of Health to take all ,actlon
neaessary to accomplish the purposes provided or implied
by the act and to cooperate with public agencies,            Federal,
State, county, and local,        and with private agencies and in-
dividuals    interested    In the welfare of crippled      children.
             In addition to authorization    contained in Arti-
cle 44190, su ra State participation       in this program is
authorized K+  y ection 2, Subdivision    10, of the General
Appropriation    Act (H.B. 322, Acts 51st Leg., R.S. 1949,
ch.615, at p. 1345), which states that the proper officer
op officers    of any State departments, bureaus, divislons,
or State agencies are authorized to make application         for,
accept any gifts,     grants, allotments,   or funds from the
United States Government or educational        or health projects
and programs to be used on State cooperative        and other
projects    and programs in Texas.    The statute   further pro-
vides that all of such funds shall be deposited in the
Hon. Geo. W. Cox, page 3,       (V-1168)         E: :.,:.


State, Treasury and ar,e<appropriated   to,, the specific per-
ease QP purposes, authorized by, the>‘grantor; and shall
  be withdrawn from theState    Treasury sub~ject to llmita-
tions placed on this Act except if contrtry to, the pur-
poses for which the funds were received.
            As noted above, in order for a child to be ac-
cepted for treatment, the county judge must certify         that
the child’s   parents are financially.     Unable to provide the
necessary care and treatment, and must further certify
that one or more physicians have examined the child and
have recosnnended him as coming within the provisions        and
intent of the act.     Art. 4419c, Sec. 4. You state that
in numerous cases a physician cannot make a definite
diagnosis for determlnlng whether the child comes wlth-
in the provislons    and intent of the tact,; nor can’he de-
termlne the extent of crippling,       without various types
of laboratory   tests and X-rays.     Your lnqniry Is *whether
the State Department of Health may pay for these,prellm-
inary diagnostic    examinations without securing the certl-
ficate   of the county judge.
             It is our opinion that a necessary diagnosfs
by laboratory     tests or otherwise may be paid for by, the
State Department of Health without the necessity              of ob-
taining a certificate        of the ,parents’ financial     inabll-
ity from the county judge.          The limitation    contained In
Section 4 of Article       44190 is a reqnirement that a certi-
ficate    of financial    lnabillty   be obtained only 8s a pre-
requisite    to accepting the child for care and treatment
and does not relate to the preliminary           diagnosis.     This
conclusion     is borne out by the p~ovlslons        of Sections 3
and 8 of Article       44190, 8s well as by the specific        re-
quirements of the Federal regulation          qUQted above.      Wore-
over, the county judge could not certify            that a parent
was financially      Unable to provide care and treatment in
the absence of an adequate diagnosis as to the nature of
the crippling     condition.
                           smRY
            The Crippled Children’s ‘Division   of the
      Texas State Department of Health is author-
      ized by House Bill 754, Acts 49th Leg., 1945,
      ch.216, p.298 (Art. 4419c, V.C.S.),     to finance
      diagnostic  procedures ordered by practicing
      physicians  to determine if a child ccanes Under
                                                            --   .




Hon. Geo W. Cox, page 4     (V-1168)


     the provisions     of the act without securing
     8 certificate     of the county judge that the
     child's    parents are financially    unable to
     provide    the needed care and treatment.     This
     limitation    contained In House Bill 754 Is
     only applicable     to care and treatment of
     crippled    children and Is not a limitation
     relating    to diagnostic  procedure.
APPROVEDI                              Yours very truly,

J. C. Davis, Jr.                         PRICE DMIEL
County Affairs  Mvislon                Attorney General
Jesse P. Lotion, Jr.
Reviewing Assistant
Charles D, Mathews                     ?iii**
First Assistant                                 Assistant
