                          QBffice of tip Elttornep          @eneral
                                      &ate     of UZexas
DAN MORALES                              March 18, 1992
 .4TT,xiSE\
         GE\ER.AL




      Honorable A. J. Hartel                       Opinion No. DM-98
      Liberty County Attorney
      P. 0. Box 9127                               Re: Whether health care professionals
      Liberty, Texas 775759127                     employed on a part-time basis by a
                                                   county to provide medical services to
                                                   inmates in a county jail are entitled to
                                                   indemnification and legal representa-
                                                   tion under sections 104.001,104.004 and
                                                   110.002 of the Civil Practice and
                                                   Remedies Code (RQ-158)

       Dear Mr. Hartel:

             You inform us that Liberty County is .attempting to employ physicians and
      nurses to provide medical care to inmates in the Liberty County Jail on a part-time
      basis. We have also been informed that the county currently employs a physician
      who is paid a salary of $l,OO&OO   per month and also receives $10.00 per patient
      examined and $3.00 per drug prescription reviewed: Registered nurses are paid for
      their setices on an hourly basis. You explain that in order to attract health care
      professionals to work in the county jail, Liberty County would like to offer them the
      greatest benefits available, inchrding state-funded indemnification and legal
      representation if possible. To that end, you ask whether health care professionals
      employed on a part-time basis by the Liberty County Jail to provide medical services
      to inmates are entitled to indemnification and legal representation under sections
      104.001,104.004, and 110.002 of the Civil Practice and Remedies Code.

              Chapter 104 of the Civil Practice and Remedies Code provides that the state
      will indemnify and defend state employees and officials in certain kinds of legal
      actions. Specifically, section 104.001 of the Civil Practice and Remedies Code
      provides that the state shall indemnify a state employee or official for damages in an
      action based on an act or omission by the person in the course and scope of the
      person’s state duties and lists those persons entitled to indenm&ation.       See Civ.
      Prac. & Rem C.ode 0 104.002 (defining conduct entitled to indemnification). In

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Honorable A. J. Hartel - Page 2         (DM-98)




addition, section 104.004 provides that the attorney general shall defend those
persons listed in section 104.001.

        Certain physicians and psychiatrists are among the categories of persons
entitled to indemnification and legal representation under sections 104.001 and
104.004. Specifically, section 104.001, subsection (3) indemnifies “a physician or
psychiatrist licensed in this state who was performing services under a contract with
any state agency, institution, or department.. . when the act or omission on which
the damages are based occurred.” In addition, subsection (1) of that provision
indemnifies “an employee, a member of the governing board, or any other officer of
a state agency, institution, or department.” Therefore, the critical question for
purposes of determining whether a physician or nurse employed by or under
contract with the Liberty County Jail is entitled to indemnification and legal
representation under chapter 104 of the Civil Practice and Remedies Code is
whether Liberty County qualifies as a “state agency, institution, or department.”

        In Attorney General Opinion JM-197 (1984), this office considered whether
county attorneys are entitled to indemnification and legal representation under
former article 6252-26, V.T.C.S., the predecessor statute to chapter 104 of the Civil
Practice and Remedies Code.’ Reasoning that “article 6252-26 was meant to apply
only to officers and employees of state agencies, institutions and departments having
statewide jurisdiction,” and noting that state indemnification for certain county
officials and employees is provided in other statutes, we concluded that county
attorneys were not covered by the statute. Ia! at 2-3; see also Attorney General
Opinion JM-1005 (1989) (officials and employees, of river authority not entitled to
indemnification under chapter 104 of the Civil Practice and Remedies Code). The
legislature has not amended chapter 104 since 19&t to include county employees
and officials within the definition of persons entitled to indemnification and legal
representation.    Therefore, we must conclude that a health care professional
employed by or under contract with Liberty County would not be entitled to
indemnification or legal representation under chapter 104.

        Next we consider whether a health care professional employed by Liberty
County to provide medical care to inmates of the Liberty County Jail would be
entitled to indemnification under chapter 110 of the Civil Practice and Remedies
Code. Generally, chapter 110 of the Civil Practice and Remedies Code provides




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Honorable A. J. Hartel - Page 3                (DM-98)




that the state will indemnify health care professionals* who devote a certain
percentage of their professional energies to “charity care or services” in a medical
malpractice claim in an amount not to exceed $25,000.00. See Civ. Prac. & Rem.
Code 3 110.004.3 A health care professional is entitled to indemnification if he or
she “renders charity care in at least 10 percent of the patient encounters engaged in
by said health care professional during the policy year in which the claim was made.”
Id. $ l10.001(2).4 “Charity care or services” is defined as care or services provided
by a health care professional under several state and federal statutes that provide
health care for the needy, including the Indigent Health Care and Treatment Act,
chapter 61, Health and Safety Code? Id. 9 110.001(l).

        Your letter and the brief submitted in support of your request suggest that
because many of the inmates in the Liberty County Jail are indigents, a health care
professional who provides medical care for inmates would automatically qualify for
indemnification pursuant to chapter 110. This is not the case. As noted above,
whether a particular health care professional is qualified for indemnification will
depend upon the extent to which his or her overall practice is devoted to the
treatment of the needy under certain state and federal statutes.            Such a
determination involves questions of fact which cannot be resolved in the opinion
process. Although we cannot address whether a particular health care professional
is entitled to indemnification under chapter 110, we can address the question
whether treatment of indigent county jail inmates under the part-time arrangement
you describe would constitute “charity care,” as defined by section 110.001(l), for


        *or pwposcs of chapter 110 of the Civil Practice and Remedies Code, a “health care
professhaP includes a person licensed to practice mcdiciae under the Texas Medical Practice Act, a
person registered by the Board of Nurse Examiners as ao advanced practice muse or a certikd nurse
midwife, or a person rceognizcd by the Board of Mcdicai Examiners as a physician assistant. Cii. Prac.
&Rem. Code 0 110.001(3).

          %ection 110.004(a) authorizes indemnification in an amount up to SlOO,tMO.oO
                                                                                     in caws
rc.ding   from prenatal care, l&or and dchwy, or resulting from emergency care.

          ‘A “path   encoont~    mans   %a occasbnonwb.ichrhcalthcareprofcssionalnndus
professional heaM cart sehces   to a pat&t.” Id. 0 llO.OOl(7).

        sother provisions iac.lm     in the ddbitim of ‘charity cue or services’ inchic Medicaid
under chapter 32 of the Human Rcsowccs Cc& the Matcmal and Infant Health Improwment Act,
chapter32 of the Hcaltb and Safety code, the Texas Primary Hcaltb Care Sewicc.s Act, chapter 31 of
the Health and safety Codq the Chronically Ill and Disabled Children’s serviecs Act, chapter 35 of the
Health and Safety Code; or a contract with a miglaUt or fommunity he&h anter that rckii         funds
pursuant to a speci6ed fcdcral program, 42 U.S.C. 00 254b. 2%~ 2%. Id. 0 llO.a)l(l).


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Honorable A. J. Hartel - Page 4                 (DM-98)




purposes of the requisite ten percent of a health care professional’s yearly patient
encounters.

       Chapter 110 defines “charity care or services” to include “care or services
provided by a health care professional under [the Indigent Health Care and
Treatment Act].” Article 104.002 of the Code of Criminal Procedure provides that a
prisoner in a county jail who receives medical services is required to pay for the
services when rendered. Code Crim. Proc. art. 104.002(d). If, on the other hand, a
prisoner “cannot pay for such services because of indigence, as defined in the
Indigent Health Care and Treatment Act, [the] county shall assist the prisoner in
applying for reimbursement through [the] Act or the hospital district of which he is a
resident.” Id. Thus, the medical care of some indigent inmates will ultimately be
provided pursuant to the Indigent Health Care and Treatment Act.

        We believe that treatment of such inmates pursuant to a contract to provide
medical care under the Indigent Health Care and Treatment Act constitutes “care
or services provided by a health care professional under [the act]” and therefore
qualifies as “charity care or services” under chapter 110. On the other hand, we
believe that treatment of such inmates under a contract such as the one you
describe, where the health care professional agrees to render medical care in
exchange for a flat fee and a per patient fee, regardless of the patient’s payment
source, would not necessarily qualify as “charity care or services.” Chapter 110
explicitly requires that medical care be provided “under”the Indigent Health Care
and Treatment Act. Thus, the contract with the health care professional must be
drafted in light of the requirements of the Indigent Health Care and Treatment Act.
A health care professional’s incidental treatment under an arrangement such as the
one you describe of a patient who happens to be entitled to medical care under the
Indigent Health Care and Treatment Act does not necessarily constitute care under
the act.

        In sum, the medical care of county jail inmates pursuant to a contract to pro-
vide such care under the Indigent Health Care and Treatment Act constitutes “char-
ity care.% Therefore, although the position of part-time physician or nurse in a
county jail would not automatically qualify a health care professional for state
indemnification, a health care professional who treats county jail inmates pursuant
to a contract ,to provide such care in compliance with the Indigent Health Care and

          %f course, the medical care of county jail inmates pursuant to a contract to provide such care
under any of the other statutes or programs listed in section 110.001(l), see note 5, sups, would also
corlstitutc “charity care.”


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Honorable A. J. Hartel - Page 5        (DM-98)




Treatment Act may count such patient encounters toward the ten percent patient
encounter minimum required for indemnification under chapter 110.

                                  SUMMARY

              Health care professionals employed on a part-time basis by
         the Liberty County Jail to provide medical services to county jail
         inmates are not entitled to indemnification or legal representa-
         tion under chapter 104 of the Civil Practice and Remedies Code.

             The determination whether a particular health care
         professional employed on a part-time basis by the Liberty
         County Jail to provide medical care to inmates is entitled to
         indemnification under chapter 110 of the Civil Practice and
         Remedies Code depends upon the overall nature of his or her
         practice and involves questions of fact which cannot be resolved
         in the opinion process. If a health care professional provides
         medical care to indigent inmates pursuant to. a contract to
         provide such care in compliance with the Indigent Health Care
         and Treatment Act, such care constitutes “charity care or
         services” for purposes of section 110.001(l), and counts toward
         the ten percent patient encounter minimum required for
         indemnification under that chapter. Treatment of such inmates
         under a contract where the health care professional agrees to
         render medical care in exchange for a flat .fee and a’per patient
         fee, regardless of the patient’s payment source, would not
         necessarily qualify as “charity care or services.”




                                            DAN      MORALES
                                            Attorney General of Texas




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Honorable A. J. Hartel - Page 6      (DM-98)




WILL PRYOR
First Assistant Attorney General

MARY KELLER
Deputy Assistant Attorney General

JUDGE ZOLLIE STEAKLEY (Ret.)
Special Assistant Attorney General

RENEA HICKS
Special Assistant Attorney General

MADELEINE B. JOHNSON
Chair, Opinion Committee

Prepared by Mary R. Crouter
Assistant Attorney General




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