April 12, 1951
Hon. Geo. W. Cox, M.D.
State Health Officer
State Department of Health
Austin, Texas opinion No. V-1168
Re: Anthority o? the State
Department of Iiealth
550 defray the cost of
diagnostic procedures
to~determIne eliglbll-
ity of children for
crippled 'ch.lldren?a
Dear Dr. Cox: care and trea@ent.
Your request for an opiniofi relates to the au-
thority of the Crippled Children's Division of tile State
Department of Health to finance diagnostic procedures to
determIne if a child comes within the proviqions and in-
tent of House Bill 754, Acts 49th Leg., 1945, ch.216, p.
298 (Art. 4419c, V.C.S.), without first having prodqred
a certificate of the county judge to the effect that the
child’s parents are financially unable to provide the
care and treatment embraced in the act.
The Federal Government has provided a grant to
States for the purpose of enabling each State to extend
and improve services for locating crippled children and
for providing medical, surgical, correatlve, and other
services and care, and facilities fork diagnosis, hospi-
talization, and aftercare for cNldren who are crippled
or who are suffering from conditl ns,whlch lead to crlp-
pllng. (42 U.S.C.A. 811 711-714.9
Pursuant to the crippled children’s program
above referred to, the Federal Security Agency has pro-
mulgated certain rules and regulationti, the pertinent
regulation or the purpose of this discussion being Sec-
tion 200.9, f which Is as follows:
1. 42 Code Fed. Regs. Sec. 200.9 (~ig,&gC&.Pocket. Supp.)
Hon. Geo. W. Cox, page 2 (V-1168)
“State Plans for Crippled Children’s
Services shall provide that the diagnostic
services under the plan will be made avail-
able within the area served b each dlag-
noetic center to any child (a 3 without charge,
(b) without restriction or requirement as to
the economic status of such child’s family or
relatives or their legal residence, and (c)
without any requirement for the referral of
such child by 8ny Individual or 8gency.’
In the furtherance of this program, an act was
passed by the Texas Legislature creating a physical re-
storatlon service for Crippled ohildren In the State De-
partment of Health. Art. 4419c, supra. This act makes
provisi.ons for locating, examining, and physically re-
storing arippled children of the State. section 3 of
Article 4419c empowers the Crippled Children’s Mvlsion
to “take census, make surveys and establish permanent
records of crippled children . . . and to take such other
steps as may be necessary In order to accomplish the’pur-
poses of this Act.” As to care 8nd treatment of crippled
children, Section 4 of the act places a llmltatlon thereon
by requiring the county judge of the county in which the
child resides to certify to the State Department of Health,
upon sworn petition of the parents, that the parents are
financially unable to provide such care and treatment. It
Is further provided that the county judge must also certi-
fy that one or more physicians regularly practicing under
the laws of the State of Texas have examined the child and
have recommended such child as coming within the PPOQiSiOnS
and intent of this act. Section 8 of the act empowers and
directs the State Department of Health to take all ,actlon
neaessary to accomplish the purposes provided or implied
by the act and to cooperate with public agencies, Federal,
State, county, and local, and with private agencies and in-
dividuals interested In the welfare of crippled children.
In addition to authorization contained in Arti-
cle 44190, su ra State participation in this program is
authorized K+ y ection 2, Subdivision 10, of the General
Appropriation Act (H.B. 322, Acts 51st Leg., R.S. 1949,
ch.615, at p. 1345), which states that the proper officer
op officers of any State departments, bureaus, divislons,
or State agencies are authorized to make application for,
accept any gifts, grants, allotments, or funds from the
United States Government or educational or health projects
and programs to be used on State cooperative and other
projects and programs in Texas. The statute further pro-
vides that all of such funds shall be deposited in the
Hon. Geo. W. Cox, page 3, (V-1168) E: :.,:.
State, Treasury and ar,e‘grantor; and shall
be withdrawn from theState Treasury sub~ject to llmita-
tions placed on this Act except if contrtry to, the pur-
poses for which the funds were received.
As noted above, in order for a child to be ac-
cepted for treatment, the county judge must certify that
the child’s parents are financially. Unable to provide the
necessary care and treatment, and must further certify
that one or more physicians have examined the child and
have recosnnended him as coming within the provisions and
intent of the act. Art. 4419c, Sec. 4. You state that
in numerous cases a physician cannot make a definite
diagnosis for determlnlng whether the child comes wlth-
in the provislons and intent of the tact,; nor can’he de-
termlne the extent of crippling, without various types
of laboratory tests and X-rays. Your lnqniry Is *whether
the State Department of Health may pay for these,prellm-
inary diagnostic examinations without securing the certl-
ficate of the county judge.
It is our opinion that a necessary diagnosfs
by laboratory tests or otherwise may be paid for by, the
State Department of Health without the necessity of ob-
taining a certificate of the ,parents’ financial inabll-
ity from the county judge. The limitation contained In
Section 4 of Article 44190 is a reqnirement that a certi-
ficate of financial lnabillty be obtained only 8s a pre-
requisite to accepting the child for care and treatment
and does not relate to the preliminary diagnosis. This
conclusion is borne out by the p~ovlslons of Sections 3
and 8 of Article 44190, 8s well as by the specific re-
quirements of the Federal regulation qUQted above. Wore-
over, the county judge could not certify that a parent
was financially Unable to provide care and treatment in
the absence of an adequate diagnosis as to the nature of
the crippling condition.
smRY
The Crippled Children’s ‘Division of the
Texas State Department of Health is author-
ized by House Bill 754, Acts 49th Leg., 1945,
ch.216, p.298 (Art. 4419c, V.C.S.), to finance
diagnostic procedures ordered by practicing
physicians to determine if a child ccanes Under
-- .
Hon. Geo W. Cox, page 4 (V-1168)
the provisions of the act without securing
8 certificate of the county judge that the
child's parents are financially unable to
provide the needed care and treatment. This
limitation contained In House Bill 754 Is
only applicable to care and treatment of
crippled children and Is not a limitation
relating to diagnostic procedure.
APPROVEDI Yours very truly,
J. C. Davis, Jr. PRICE DMIEL
County Affairs Mvislon Attorney General
Jesse P. Lotion, Jr.
Reviewing Assistant
Charles D, Mathews ?iii**
First Assistant Assistant