Untitled Texas Attorney General Opinion

.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

P. 6388
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)

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 ,

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.

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 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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