                           October 10, 1989




Honorable Gary W. Rholes        Opinion No. JM-1108
Shelby County Attorney
104 Church Street               Re: Whether a county that has
Center, Texas 75935             closed a public hospital may
                                change its eligibility stan-
                                dards for indigent health care
                                applicants (RQ-1669)
Dear Mr. Rholes:
     You ask the following question         about   the   Indigent
Health Care and Treatment Act:
       Can a county that has closed a         public
       hospital avail itself of Section 13.02 of the
       Indigent Health Care and Treatment Act to
       change   its   eligibility   standards    for
       applicants for indigent health care?
     Under the Indigent Health Care and Treatment Act,
Health & Safety Code ch. 61,l a public hospital must provide
certain health care services to eligible residents of the
area the public hospital has a legal obligation to serve. A
county hospital is a public hospital.2 Therefore, a county


     1. The Indigent Health Care and Treatment Act was
previously codified as article 4438f, V.T.C.S. It has now
been recodified as chapter 61 of the Health and Safety Code.
Acts 1989, 71st Leg., ch. 678, 5 1, at 2292.
     2.  The act defines "public hospital" as "a hospital
owned, operated, or leased by a governmental entity."
Health & Safety Code § 61.002(U); see also Acts 1989, 71st
Leg., ch. 500, § 1, at 1685 (amending definition of "public
hospital"). A "governmental entity" includes 'Ia county,
municipality, or other political subdivision of the state,
but does not include a hospital district or hospital
authority." Health & Safety Code 5 61.002(7).




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Honorable Gary W. Pholes - Page 2   (JM-1108)




,that has a public hospital is subject to the provisions of
the act governing      public hospitals   rather than    the
provisions governing counties.3    See aem         Health &
Safety Code 5 61.023 (eligibility standards for counties).
     Section 61.052 of the act governs eligibility standards
for public hospitals. In short, section 61.052 provides
that a public hospital must adopt eligibility standards that
are at least no more restrictive than the          standards
established by the Department of Health under section 61.006
of the act.   If, in the operating year that ended before
January 1, 1985, the      hospital used less     restrictive
standards than those established by the Department of
Health, the hospital must retain those standards. A public
hospital may change its eligibility standards to make them
more restrictive4 only if it complies with the rather
burdensome requirements of section 61.063, which provides:
           (a) A public hospital may not change its
        eligibility standards to make the standards
        more restrictive and may not reduce the
        health care services it offers unless it
        complies with the     requirements of  this
        section.
           (b) Not later than the 90th day before the
        date on which a change would take effect, the
        public hospital must publish notice of the
        proposed change in a newspaper of general
        circulation in the hospital's service area
        and set a date for a public hearing on the
        change. The published notice must include


     3. The services a public hospital is required to
provide are not the same as the services a county is
required to provide. &S Health & Safety Code §§ 61.028,
61.054..
     4. When all the provisions of the Indigent Health Care
and Treatment Act are read together, it is evident that a
public hospital cannot use the procedures set out in section
61.063 to make its standards more restrictive than those
established by the Department of Health. See. e.a., Health
& Safety Code 5 61.052(e) (providing that if the Department
of Health makes its eligibility standards less. restrictive,
the public hospital must change its standards to at least
comply with the department's standards).




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Honorable Gary W. Rholes - Page 3 (JM-1108)




       the date, time, and place of the public
       meeting. The notice is in addition to 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 must conduct a public
       meeting to discuss the change. The meeting
       must be held at a convenient time       in a
       convenient location in the hospital's service
       area. Members of the public may testify at
       the meeting.
           (d) If, based on the public testimony and
        on other relevant information, the governing
        body of the hospital finds that the change
        would not have a detrimental effect on access
        to health care for the residents the hospital
        serves, the hospital may adopt the change.
        That finding must be formally adopted.
Health & Safety Code 8 61.063.
     A county that closes its-public hospital is subject   to
the following provision:
           Sec. 61.064.    TRANSFER   OF   A   PUBLIC
        HOSPITAL.  (a)  A  governmental  entity  that
        owns, operates, or leases a public hospital
        and that    closes, sells    or leases    the
        hospital:
              (1) has the     obligation to   provide
           mandatory health   care assistance   under
           this chapter;

              (2)   shall   adopt   the   eligibility
           standards that the hospital was or would
           have been required to adopt: and
              (3) shall provide the same services the
           hospital was or would have been required
           to provide under this chapter on the date
           of the closing, sale, or lease.
Health & Safety Code § 61.064.




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Honorable Gary W. Pholes - Page 4   (JM-1108)




     your question is whether a county that has closed its
public hospital and is thus subject to section 61.064 may
avail itself of the provisions of section 61.063 to make its
eligibility standards more restrictive.      Your   question
requires us to determine the combined effect of section
61.063 and section 61.064. Section 61.064 requires a county
that closes its hospital to adopt the eligibility standards
that the county hospital would have been required to adopt.
We interpret that language to mean that a county that closes
its hospital will continue to be governed by the eligibility
requirements applicable to public hospitals rather than the
requirements applicable to counties. We do not interpret it
to mean that a county that closes its county hospital must
adopt eligibility standards that are fixed for all time.
Because section 61.063 is a provision governing eligibility
standards for public hospitals, a county that has closed its
county hospital may avail itself of the provisions of
section 61.063.5

                      SUMMARY
             A county    that closes    its   county
       hospital may avail itself of the provisions
       of section 61.063 of the Indigent Health Care
       and Treatment Act, Health and Safety Code,
       chapter 61.



                                J hLa7c
                                Very truly yo

                                       A;,
                                JIM     MATTOX
                                Attorney General of Texas




     5. Although you ask about making eligibility standards
more restrictive, we note that a public hospital may make
its eligibility standards less restrictive at any time.
Health & Safety Code 8 61.052(d).   Section 61.063 applies
only when a public hospital wishes to make its eligibility
standards more restrictive.




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NARYXELJJ3R
First Assistant Attorney General
Lou MCCREARY
Executive Assistant Attorney General
JUDGE ZOLLIE STEXKLEY
Special Assistant Attorney General
RICK GILPIN
Chairman, Opinion Committee
Prepared by Sarah Woelk
Adsistant Attorney General




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