    .JI.M   MArnX                         August 15, 1990
    xl"ro*NEY GENERAL


                    Mr. Ron Lindsey                 Opinion No. JM-1207
                    Commissioner
                    Texas Department of Human       Re: Obligation   of a metro-
                       Services                     politan transit authority with
                    P. 0. Box 149030                regard to medicaid recipients
                    Austin, Texas 78714-9030        (RQ-1793)

                    Dear Mr. Lindsey:

                         The Department of Human Services ("the department")   is
                    the state agency designated      to administer  the medical
                    assistance ("medicaidl') program in Texas. See Hum. Res.
                    Code ch. 32.      The   department  administers state funds
                    appropriated for the program    as well as federal matching
                    funds available under title 42, chapter 7, subchapter    XIX,
                    of the United States Code (sections 1396, et sea.). Federal
                    funds are made available only upon federal approval of a
                    "state plan" for administration of the program at the state
                    level. 42 U.S.C.    5 1396. You refer to a provision    among
                    those in the Code of Federal Regulations implementing     the
                    medicaid program,   42 C.F.R. 5 431.53,   which provides   as
                    follows with respect to a state's participation       in the
                    medicaid program:

                               A State plan must-

                                (a) Specify that the Medicaid agency will
                            assure necessary transportation    for reci-
                            pients to and from providers: and

                               (b) Describe the methods    that    will   be
                            used to meet this requirement.

                         You advise that the department pursuant    to its state
                    plan provides transportation to medicaid recipients to and
                    from medicaid service providers by prepurchasing bus tickets
                    "in bulk"   from various transportation authorities   in the
                    state for the use of medicaid recipients. We understand you
                    to say that certain of these transportation authorities    --
                    metropolitan rapid transit authorities and regional    trans-
                    portation authorities   -- charge the department    more per
P                   ticket for such bulk prepurchased   tickets than they do for
                    individual tickets ordinarily sold to members of the general



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     Mr. Ron Lindsey - Page 2    (JM-1207)




     public.   You express concern that the charging of additional
     amounts for bulk tickets prepurchased     by the department
     constitutes discrimination   by the transit authorities    in
     question.   YOU ask whether such transit authorities      are
     required to provide the bulk prepurchased     tickets to  the
     department at the same cost per ticket as would be imposed
     by the authorities on members of the general public.

            We will assume for purposes of the following discussion
     that the transit authorities     about which you are concerned
     are ones operating     under articles 1118x, 1118y, or 11182,
     V.T.C.S.,    providing    for   "metropolitan    rapid    transit
     authorities,"    "regional transportation     authorities,"   and
     "city transit departments"      respectively.    Each  of   these
     articles   provides  that the transportation      entity   "shall
     establish and maintain rates, fares, tolls, charges,       rents,
     or other compensation for the use of the facilities of the
     system acquired, constructed, operated, or maintained by the
     authority which shall be reasonable and nondiscriminatory."
     V.T.C.S. arts. 1118x, 5 6(j); 1118y, 5 lo(j); 11182, 5 6(f).

            It is certainly   possible that this language would
     prohibit a transit    authority from charging the department
/4
     more    for bulk prepurchased      bus tickets   for    medicaid
     recipients than it does for tickets for the general public.
     However, various factual considerations might have a bearing
     on a courtfs resolution of this issue.        For example,    the
     sale by a transit authority of the kind of bulk tickets        in
     question might conceivably    involve costs to the authority
     over and above those ordinarily involved       in the sale of
     tickets to the general public. Also, whether the authority
     also sells bulk prepurchased      tickets to other persons     or
     organizations, and if so, whether      such sales are made at
     prices comparable    to those charged the department,       might
     have a bearing on whether the practices of the authority are
     discriminatory or reasonable under the applicable      statutes.
     We are unable    in the opinion process to make findings of
     fact. While we have received correspondence in connection
     with your request from one transit authority indicating that
     that authority does not engage in the practice you complain
     of, we have received no information or explanations from any
     authorities engaged in this practice     as to why they charge
     the department    more per ticket for the bulk prepurchased
     tickets than they do members       of the general    public   for
     tickets   purchased individually.

          We note that federal law applicable to transportation
     authorities receiving federal funds contains  nondiscrimina-
     tion provisions  similar to those of the state statutes
     referred to above.    The transportation  authorities  about
     which you complain may receive federal funding under the



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Mr. Ron Lindsey - Page 3   (JM-1207)




Urban Mass Transportation    Act.  &=   49 U.S.C.  55 1607a
(block grants),   1614 (grant program for areas other than
urbanized areas).    Title 29, section 794, of the United
States Code, provides that

        WI0   otherwise  qualified   individual   with
        handicaps in the United States . . . shall,
        solely by reason of her or his handicap,    be
        excluded from the participation in, be denied
        the benefits of, or be subjected to discri-
        mination  under any    program or     activity
        receiving  Federal financial assistance     or
        under any program or activity conducted     by
        any Executive agency . . . .

Title 49, section 1615(a)(l), of the United States Code,     a
part of the Urban Mass Transportation Act, provides:

           No person in the United States shall on
        the grounds of race, color, creed, national
        origin, sex, or m    be excluded from partici-
        pation in, or denied the benefits of, or be
        subject to discrimination under any project,
        program, or activity   funded in whole or in
        part through financial assistance under this
        chapter.   (Emphasis added.)

We understand that many of the medicaid recipients for .whom
bus tickets are prepurchased in bulk by the department     are
handicapped or aged individuals.    See 29 U.S.C.   5 706(7)
(definition of handicapped   individual); 42 U.S.C.   § 1396
(purpose of medicaid program is "to furnish medical   assis-
tance on behalf of families with dependent children, and of
aged, blind, or disabled individuals").  But again, we think
that whether  such individuals are discriminated     against
"solely by reason of (their) handicap(s)" within the meaning
of section 794, or "on the grounds of . . . age" under
section 1615(a)(l), in connection with the transit authority
practices about which you complain, may involve      factual
issues which we in  the opinion process would be unable to
resolve, as discussed above with respect to the nondiscrim-
ination provisions of articles 1118x, 1118~ and 11182.1



     1. Section 1615 further provides   for action the U.S.
Secretary of Transportation and/or the U.S. Attorney General
may take if it is determined that "any person" is engaged in
practices in violation of the section's anti-discrimination
                                        (Footnote Continued)




                               P. 6389
                                                                   ,

Mr. Ron Lindsey - Page 4   (JM-1207)




     You refer in your request to one of the provisions       of
the Code of Federal Regulations adopted to implement        the
federal medicaid laws, 42 C.F.R. 5 447.325, which provides
with respect to a state agency administering         a state's
medicaid program, such as the department here, that      "[t]he
agency may pay the customary charges of the provider         [Of
medicaid services] but must not pay more than the prevailing
charges   in the locality for comparable        services under
comparable   circumstances.*'    See   42   C.F.R.    3 400.202
(defining **provider" and "services,@* the latter definition
referring in turn to the list of medicaid covered      services
in title 42, section 1396d, of the United States Code).
Those covered    services   include   in addition to      those
specified "any other medical care, and any other type of
remedial care recognized under state law, specified by the
secretary   [of Health and Human Services].1*        42 U.S.C.
5 1396d(a)(Zl).   It appears that the secretary has specified
in title 42, section 440.170, of the Code of Federal
Regulations that certain transportation services,     including
those of a common carrier, necessary      to the securing     of
medical examinations and treatment by a medicaid      recipient
are covered   services   for which federal funding may be
obtained.   See also Smith v. Vowell, 379 F.Supp. 139    (1974)
(state's duty to provide     for transportation   for medicaid
recipients).

     However, the directive in title 42, section 447.325, of
the Code of Federal Regulations,   quoted above, goes to the
state agency's authority   to pay for medicaid services   and
not to a provider's right to seek to impose given charges
for those services.     Further, whether the bulk sale of
tickets is comparable to other sales of tickets is a fact
issue that we cannot resolve.      See the above discussion
regarding nondiscrimination provisions of V.T.C.S.   articles
1118x, 1118y, and 11182, and title 29, section 794, of the
United States Code.

     Similarly, title 42, section 1604(m), of the United
States Code provides that the United States Secretary      of
Transportation  may   not   approve   federal   funding    of
transportation   projects   unless   the   applicant    gives
satisfactory assurances that reduced rates will be charged


(Footnote Continued)
provision.  It might be advisable    for the department   to
apprise the secretary   of transportation  or the attorney
general of the transportation authority practices which are
the subject of your request, so that those officials     may
investigate and take appropriate action under section 1615.




                               P. 6390
    Mr. Ron Lindsey - Page 5     (JM-1207)




    handicapped and elderly individuals.     Again,   it is our
    understanding that many of the medicaid recipients receiving
    transportation services are elderly or handicapped.  See 42
    U.S.C.  5 1396   (purpose  of medicaid program).      Again,
    however, whether the practice you describe could jeopardize
    a transit authority's eligibility for federal funds requires
    the resolution of fact issues.

         In addition to the statutes and regulations   discussed
    above, a court if presented with this issue might       also
    entertain the argument that the transit authority  practices
    of which you complain violate constitutional Equal Protec-
    tion principals.   But again, we think that whether    these
    practices  constitute  Equal Protection violations     would
    probably involve questions of fact, which we in the opinion
    process would be unable to resolve.

                           SUMMARY

               Whether a transit authority may legally
            charge the Department of Human Services more
            per ticket for bulk prepurchased bus tickets
            for medicaid   recipients   than it   charges
P           members of the general public    for indivi-
            dually prepurchased   tickets would probably
            involve factual     issues that   cannot   be
            resolved in an attorney general opinion.




                                      Jhi~
                                        Very truly y 1 s,
                                             .

                                        JIM     MATTOX
                                        Attorney General of Texas

    MARY KELLER
    First Assistant Attorney General

    LOU MCCREARY
    Executive Assistant Attorney General

    JUDGE ZOLLIE STEAKLEY
    Special Assistant Attorney General

    RENEA HICKS
    Special Assistant Attorney General

    RICK GILPIN
    Chairman, Opinion Committee
P
    Prepared by William Walker
    Assistant Attorney General


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