                            QBfficeof tfy Bttornep Q&nerd
                                    Qtate of ZEexae
DAN MORALES                                  March 29, 1995
 ATTORNEY
       GENERAL


      Ms. Rita Horwitz                                   Opinion No. DM-340
      Executive Director
      State Pension Review Board                         Re: Whether the board of trustees of a
      P.O. Box 13498                                     public retirement system serves as a
      Austin, Texas 7871 l-3498                          medical board or medical committee for
                                                         purposes of the Open Meetings Act,
                                                         Government Code section 551.078 and
                                                         related question (RQ-529)

      Dear Ms. Horwitz:

              You have asked two questions regarding the confidentiality of medical records that
      the board of trustees of a public retirement system reviews as part of the process by which
      the board determines whether an applicant is eligible to receive disability retirement
      benefits. For purposes of this opinion, you ask us to assume the following:

                1.   No local ordinance addresses the question of whether the
                     meeting of the trustees of a public retirement system is open to
                     the public. That issue is determined entirely by state and federal
                     law.

                2.   The trustees have no committee nor subcommittee which deals
                     with medical determinations.. The trustees are required by the
                     plan document to serve as the sole fmden of fact and law on
                     initial applications and reconsiderations of eligibility for disability
                     retirement benefits.

      Based on these two assumptions, you ask:

                a)   Is the board of trustees of a public retirement system serving as a
                     medical board or medical committee as described in section 2(o)
                     of the Open Meetings Act when reviewing or discussing medical
                     records as part of its determination of the eligibility of a person
                     to receive disability retirements benefits?

                b)   If your answer to the above is negative, does 29 C.F.R.
                     1630,14(c)(l).  overrule any provisions of Title 5, Chapter
                     551, Government Code which would otherwise require the
Ms. RitaHorwitz    - Page 2                (DM-340)




               trustees to review and discuss medical records of employees and
               retirees in open session?

We will answer your questions in the order you asked them,

        Sections 551.002 and 551.101 of the Govemment Code require a governmental
body to open to the public every meeting it holds, unless the meeting is expressly excepted
elsewhere. However, pursuant to section 55 1.078, the Open Meetings Act “does not
require a medical board or medical committee to conduct an open meeting to deliberate
the medical or psychiatric records of an individual applicant for a disability benefit from a
public retirement system.” You suggest that under section 551.078 the board of trustees
of a public retirement system may conduct a closed meeting to review and deliberate on
the medical and psychiatric records of an individual applicant for disability retirement
benefits. We agree.

         We believe that section 55 1.078 of the Government Code relieves the board of
trustees of a public retirement system of the Open Meetings Act’s requirement that the
board’s meetings be open “to deliberate the medical or psychiatric records of an individual
applicant for a disability benefit from a public retirement system.” That a public pension
system board performs functions other than those described in section 55 1.078, does not,
we think, remove it from the scope of section 55 1 078 while it is performing the functions
described there. We do not believe that the legislature intended the policy expressed in
section 551.078, of protecting public retirement systems’ “medical committees” or
“medical boards” considerations of disability applicants’ medical records from the open
meetings requirement, should vary in its application merely because limited resources or
the administrative structure of such a system require that the public retirement system’s
board of trustees perform the “medical committee” or “medical board” functions. Of
course, a board may not avail itself of the section 55 1.078 exception when it is performing
functions other than those described in that section--for example, when the board moves
beyond “consideration” of medical records to taking final action on an application for
disability benefits,

        In light of our conclusion that the board of trustees of a public retirement system
may, under section 55 1.078 of the Government Code, consider the individual medical and
psychiatric records of an applicant for disability retirement benefits in a closed meeting, we
need not address your second question.




                                          p. 1813
Ms. Rita Horwitz - Page 3               (DM-340)




                                   SUMMARY

                Under section 551.078 of the Government Code, the board of
          trustees of a public retirement system may consider the individual
          medical and psychiatric records of an applicant for disability
          retirement benefits in a closed meeting. In such circumstances, the
          board of trustees is serving as a medical board or medical committee
          for purposes of the Open Meetings Act. On the other hand, when
          the board of trustees is performing other functions, it may not
          conduct a closed meeting under section 551.078.




                                                   DAN MORALES
                                                   Attorney General of Texas

JORGE VEGA
First Assistant Attorney General

SARAH J. SHIRLEY
Chair, Opinion Committee

Prepared by William Walker
Assistant Attorney General




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