Honorable Chet Brooks OpilliOll No. JM-1169
Chairman
Health and Human Services Re: Authority of the Texas
Committee Department of Health to reduce
Texas State Senate the financial eligibility
P. 0. Box 12068 criteria for the Chronically
Austin, Texas 70711 Ill and Disabled Children's
Program (RQ-1914)
Dear Senator Brooks:
You ask about and enclose a copy of a letter from the
Texas Commissioner of Health to providers of health care
services to children under the Chronically Ill and Disabled
Children's (CIDC) Program. The letter, dated November 15,
1989, cited budget deficiencies and explained:
In an effort to decrease expenditures without
changing coverable conditions and amending
program rules and policies extensively, the
CIDC program has implemented the following
administrative procedures which were
effective November 1, 1989:
* Income eligibility reduced from 200% to
160% of federal poverty income; and
* overpayments and unauthorized payments will
be recouped as payer of last resort for
dual coverage by insurance, Medicaid or
other third-party payers.
The effect of the income eligibility reduction is to
decrease the number of persons eligible for the program.
Your first question is:
In the absence of adoption of a rule by the
Texas Board of Health, does the Texas
Department of Health's reduction of the
financial eligibility criteria for the CIDC
program from 200 percent to 160 percent of
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Honorable Chet Brooks - Page 2 (JM-1169)
the federal poverty income level violate
4 35.005(a)(l) of the Health and Safety Code
which provides that the Board by rule shall
define medical, financial and other criteria
for eligibility to receive services?
The CIDC program has been governed by article 4419c,
V.T.C.S., which has been recodified as chapter 35 of the
newly enacted Health and Safety Code. Section 35.005(a)(l)
of the code provides:
(a) The board [of Health) bv rule shall:
(1) define medical, financial, and
other criteria for eligibility to receive
services. (Emphasis added.)
The language of that provision is clear: criteria for
eligibility are to be defined by rule of the board. See
w Health & Safety Code 5 11.013 (Board of Health shall
adopt policies and rules).
Also, the legislature has foreseen the possibility of
budget limitations and directed that "the board by rule
shall establish a system of priorities relating to the types
of services or the classes of persons eligible for the
service8.s Health & Safety Code f 35.003(c).
Priority levels based on the federally defined poverty
income level have been adopted by the board in accordance
with sections 35.005(a)(l) and 35.003(c) as a rule, which is
currently found at 25 T.A.C. 5 37.83(2)(A)(iii). The board,
in the adoption of that rule, attempted to delegate the
adjustment of priority levels through the following
language:
Income guidelines are based on percentages of
the current federal poverty guidelines and
may be adjusted by the program with the
consent of the commissioner to meet budgetary
limitations.
35 T.A.C. 5 37.83(2)(A)(ii.i). Apparently, this provision in
the rules was viewed by the commissioner and the program
as authorization for the actions indicated in the commis-
sioner's letter.
The legislature has granted the board the authority to
delegate any of its powers or duties, "except that the board
may not delegate the power or duty to adopt rules." Health
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Honorable Chet Brooks - Page 3 (JM-1169)
& Safety Code 0 11.013(b). Where the legislature has.
generally directed the board to enact rules for the per-
formance of its duties and expressly prohibited the delega-
tion of that duty, the board may not, by means of its own
rule, attempt to contravene that legislative prohibition.
See. e.aL, Teacher Retire-t Svs. v. Duckworth, 260 S.W.2d
632, 636 (Tex. Civ. App. - Fort Worth 1953), Rnin~o~
4 S.W.2d 98 (Tex. 1954); see also Care v. Bo r
8 in Ootometrv, 401 S.W.2d 639 (Tex. Civ. App. -
Dallas 1966), sv'd on other arou, 412 S.W.2d 307 (Tex.
1967). Thus, we believe that the redesignation of eligi-
bility standards based on the federally defined poverty
level may only be accomplished through rules enacted by the
board.
In your second question, you ask:
Does the language of the proposed amendments
to 25 TAC f 37.86 conform to the requirements
of S 35.003(c) of the Health and Safety Code
which provide that if budgetary limitations
exist, the Board by rule shall establish a
system of priorities relating to the types of
services or classes of persons eligible for
the services? In the alternative, do the
proposed amendments to 25 TAC 5 37.86
constitute an overly broad delegation of
statutory authority by the Texas Board of
Health to agency staff?
As noted above and in your question, section 35.003(c)
of the Health and Safety Code requires that where budgetary
limitations exist, it is the duty of the board by rule to
establish a system of priorities based on the types of
services and the classes of persons eligible for services.
The proposed.rule reads in part as follows:
(c) Limitations. The proaram may limit
or restrict services to remain within avail-
able funding and to provide effective and
efficient administration. The proarm may
establish priorities by type of service for
budgetary reasons. (Emphasis added.)
15 Tex. Reg. 16 (1990) (prop. amend. to be codified at 25
T.A.C. 5 37.86). We assume that 'the program" denotes
department staff rather than the board. If so, the proposed
rule attempts to delegate a statutory responsibility that
P has been assigned to the board alone and is therefore
invalid.
r
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Honorable Chet Brooks - Page 4 (JM-1169)
SUMMARY
It is the duty of the Board of Health to
enact rules for the Chronically Ill and
Disabled Children*8 program. The board must
by rule define eligibility criteria for the
program and, in case of budgetary limita-
tions, establish by rule a system of
priorities both for the types of services
available and the classes of persons eligible
for those services. Any attempt by the board
to delegate these rule-making responsibi-
lities is invalid.
JIM MATTOX
Attorney General of Texas
MARYEBLLER
First Assistant Attorney General
JUDGE ZOLLIE STBAELEY
Special Assistant Attorney General
RENEA HICKS
Special Assistant Attorney General
RICK GILPIN
Chairman, Opinion Committee
Prepared by Karen C. Gladney
Assistant Attorney General
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