                             May   15,   1990



Mr. Ron Lindsey                          Opinion   No.   ~~-1174
Commissioner
Texas Department   of Human              Re:     Authority     of the Texas
  Services                               Department    of Human     Services
P. 0. Box 149030                         to extend     medicaid     coverage
Austin, Texas    78714-9030              to   children     under    age   six
                                         meeting certain       income    cri-
                                         teria    (RQ-1989)

Dear   Mr.   Lindsey:

      You advise     that   the    U.S. Congress      in   1989    adopted
amendments   to the provisions      of section 1396a of title 42 of
the   United    States    Code    mandating     coverage    under     state
medicaid    programs     receiving     federal    matching     funds      of
children under      age   six  meeting     certain    income    criteria.
Omnibus Budget     Reconciliation       Act    of 1989,    Pub.    L.    No.
101-239,   5 6401, 1989     U.S. Code      Cong. & Admin. News          (103
Stat.) 2106,     2258.     Prior thereto,       federal    law    required
coverage of children under         age one.     42 U.S.C.    5 1396aW       ,
amended bv    Pub.    L. NO. 101-239,       5 6401(a)    (approved     Dec.
19,   1989).     Section     1396a    provides     inter   alia    minimum
coverage requirements       that the      "state plans"     of    partici-
pating states must comply with           in order for such states         to
receive federal medicaid matching          funds.    See also 42 U.S.C.
55 1396, 1396b(a)      (authorizing    the U.S. Secretary      of   Health
and Human    Services to      provide     federal matching      funds     to
states having submitted       approved state medicaid       plans).

      Subsection    (c) of   section 6401 of     Public Law   101-239
provides   that   the   amendments     made in   section  6401   with
regard to required medicaid       coverage  shall apply to payments
made by the Secretary      of Health and Human Services under the
medicaid   program on or after April 1, 1990.

      You point out that the Texas Legislature     in 1989, prior
to the   adoption     of Public Law   101-239,   amended   section
32.024 of the     Human Resources Code   by adding a subsection




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Mr.   Ron   Lindsey   - Page   2    (JM-1174)




(g)l directing  the Texas           Department   of Human Services,    the
state agency   designated          to   administer  the  state   medicaid
program,  to

            set the    income eligibility  cap for   medical
            assistance   for children up to age four at not
            less than 100 percent of the federal     poverty
            guidelines   for state fiscal year 1990 and for
            children   up to age six for state fiscal    year
            1991.2

Acts 1989, 71st Leg., ch. 1219, § 1, at 4939:          see aenerallv
Hum. .Res. Code s§ 11.001      (defining  "department"   as used    in
the code to mean the      Department   of Human Services),     32.021
(naming the    department   as   the state    agency designated     to
administer  the medicaid    program under chapter 32).

      The focus of     your concern is    the discrepancy     between
the provisions    of section 6401 of Public Law 101-239 and the
new subsection    (g) of section 32.024 of the Human        Resources
Code.    The   federal    provision   requires     in  effect     that
children under age      six meeting certain     income criteria      be
covered by a state medicaid plan       as of April 1, 1990.        The
state provision    directs the Department    of Human Services       to
extend coverage     to   children up   to   age six    beginning     in
fiscal year 1991.      You ask whether additional     state legisla-
tion is necessary    in order for the department      now to    extend
coverage under the state plan to children under age six.             It
is our opinion that no       further state legislative     action    is
required  in order for the department      to thus extend coverage
under the    state   medicaid    plan to   comport    with   the    new
federal requirement.




      1.   The 7Ist Legislature   also   added in 1989 two    other
provisions   denominated  as subsections    (g) of Human Resources
Code section 32.024.     Acts 1989,    71st Leg., ch. 1085,    0 3,
at 4439: &     ch. 1107, § 1, at 4595.

      2.   The amendments    made    by section   6401 require      that
the income     eligibility   cap    be  set at   not less     than    133
percent of     the income    amounts    set under    federal    poverty
guidelines.     The 100 percent figure provided       for in the      new
subsection    (g) of section      32.024 is    a limitation     on    the
minimum rather      than the    maximum amount    and does     not,    we
think, restrict the department         from increasing    that    amount
to   133   percent     in  order    to  comport   with    the    federal
requirement.




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    Mr.   Ron   Lindsey   - Page   3   (JM-1174)




          When   subsection     (g) was    added   to   section    32.024,
    directing   the department    to‘cover under the medicaid      program
    children up to four years of age in fiscal year 1990 and              up
    to six years of age in 1991, federal law did not yet require
    such   coverage.      *     42 U.S.C.     5 1396a(a)(lO),     (1)    (as
    amended in 1988) (Supp.       1989   at 525,   541, 547, 552).        We
    think that the purpose of the addition of subsection           (g) was
    to require    the department      to extend   coverage beyond      that
    required by federal      law but not     to limit the    department's
    authority   to later    increase such coverage      as necessary      to
    comport with     subsequently   added federal requirements.

          The stated purpose      of chapter     32 of    the code,     which
    provides  for the department's     administration      of the    state's
    medicaid  program,     is  "to   provide     medical    assistance      on
    behalf of   needy    individuals   and    to   enable the      state    to
    obtain all    benefits    for those    persons"      authorized     under
    federal   law.     Hum.   Res.   Code    3 32.001.       Significantly,
    section 32.002(a)    provides:

                    This chapter shall be liberallv      construed
                and aoolied in relation to.applicable       federal
                laws and     regulations   so that  adequate     and
                high    quality     health  care   may   be    made
P               available    to all children and adults who need
                the care and are not financially      able to    pay
                for it.     (Emphasis added.)

    Subsections    (a), (b), and (c),      of section 32.024, give        the
    Department   of Human Services broad authority:         (1) to       pro-
    vide medical assistance       to persons if the provision      of    such
    services   is required by      federal law as    a condition    of    the
    state's receiving     federal matching     funds or if the      persons
    are unable    to meet     the cost    of the   services and     federal
    matching   funds are available       for such purpose,    and    (2)   to
    establish   standards    (not   lower than    the minimum     standards
    required by     federal law)     governing   the  scope of     coverage
    under the medicaid     program.

         It is our opinion that no additional  state   legislation
    is needed in order for the department  to now extend coverage
    under the state medicaid plan to children under six years of
    age so as to comport with federal requirements.3


P


          3. Your question   concerning the  need for             additional
    state legislation  may  relate to a provision    of           subsection
    (c)(2) of section   6401 of Public  Law 101-239.              Subsection
                                             (Footnote            Continued)
P



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Mr. Ron   Lindsey    - Page    4    (JM-1174)




                               SUMMARY

              Additional  state   legislation  is  not   re-
          quired in order for     the Department  of   Human
          Services to extend     coverage under the    state
          medicaid   plan to children    under age six   who
          meet certain income criteria.

                                             /   v-y/z*



                                                 JIM      MATTOX
                                                 Attorney  General   of Texas
MARY KELLER
First Assistant     Attorney       General

JUDGE ZOLLIE STEAKLEY
Special Assistant  Attorney          General

RENEA HICKS
Special Assistant     Attorney-General

RICK GILPIN
Chairman,  Opinion     Committee

Prepared by William Walker
Assistant Attorney  General




(Footnote Continued)
(c) providing     in subpart    (1) that the section's      requirements
apply on and after      April 1, 1990,       provides   in subpart      (2)
that if    the U.S.    Secretary    of   Health and     Human    Services
determines    legislation,    other than that appropriating         funds,
is necessary    to   enable the     state plan to      be brought     into
conformity   with the     section's    new   requirements,    the    state
has until after      the next legislative        session to bring       its
plan into conformity.         We do not    think that the       extension
provision   in subpart      (2) will be    triggered    in the    instant
situation    because    we     do   not    think    additional       state
legislation    is required    in order to permit the Department          of
Human Services to bring the state plan into conformity                with
the new federal requirement.




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