THE ATTORNEY GENERAL
OF TEXAS
March 2, 1988
Ms. Barbra Walsh Opinion No. JM- 866
Ward County Auditor
Monahans, Texas 79756 Re: Whether Attorney
General Opinion Mw-393
Honorable James L. Rex (1981) has been modified
Andrews County Attorney by the Indigent Health
Andrews Courthouse Care and Treatment Act
Andrews, Texas 79714 (RQ-1329)
Dear Ms. Walsh and Mr. Rex:
You both ask whether the Indigent Health Care and
Treatment Act, article 4438f, V.T.C.S., overruled or
modified Attorney General Opinion MW-393 (1981), in which
this office held that a county could not pay visiting
physicians on the medical staff of the county hospital for
treating indigent patients at the hospital and that a
county hospital could not pay salaried staff physicians
additional compensation for treating indigent patients at
the hospital. See also Attorney General Opinion O-2422
(1940). The basis for MW-393 was the following language
excerpted from article 4480, V.T.C.S.:
The board shall also appoint a staff of
visiting physicians who shall serve without
pay from the county, and who shall visit and
treat hospital patients at the request
either of the managers or of the
superintendent.
Said board shall fix the salaries of the
superintendent and all other officers and
employees within the limit of the appropria-
tion made therefore by the commissioners
court, and such salaries shall be compensa-
tion in full for all services rendered.
The Indigent Health Care and Treatment Act, article
4438f, V.T.C.S., specifies the obligations of counties,
public hospitals, and hospital districts for providing
P. 4199
Ms. Barbara Walsh
Honorable James L. Rex
Page 2 (JM-866) ,
1
medical care for indigents. A county hospital is a
"public hospital" for purposes of the Indigent Health Care
and Treatment Act. V.T.C.S. art. 4438f, 51.02(10); art.
4478. Therefore, a county hospital is governed by the
provisions applicable to public hospitals rather than the
provisions applicable to counties. a V.T.C.S. art.
4438f, 552.01, 3.01, 10.01, 11.01. See also V.T.C.S. art.
4484: Attorney General Opinion M-379 (1969) (bills and
accounts of county hospital are paid and approved by
commissioners court). The act requires a public hospital
to provide specified services to persons who live within
the area that the public hospital has a legal obligation
to serve. Id. 510.01. Because a county hospital has a
legal obligation to serve the county in which the hospital
is situated, V.T.C.S. art. 4486, it must provide the
services specified in the Indigent Health Care and
Treatment Act to indigent persons who live within the
county.
The services a public hospital is required to provide
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art. 4438f, 5511.01, 3.01. The Department of Human
Resources has the authority to promulgate rules more
specifically defining the required services. Id. 91.06.
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The act contains the following provisions regarding
provision of services by a public hospital:
Sec. 11.03. (a) A public hospital or
hospital district may arrange to provide
health care services through a local health
department, a publicly owned facility, a
contract with a private provider regardless
of the provider's location, or through the
purchase of insurance for eligible
residents.
(b) A public hospital or hospital district
may affiliate with other public hospitals or
hospital districts or with a governmental
entity to provide regional administration
and delivery of health care services.
1. A public hospital is also required to continue
providing any additional health care services that it
provided to eligible residents during the operating year
that ended before January 1, 1985.
p. 4200
Ms. Barbara Walsh
Honorable James L. Rex
Page 3 (JM-866)
Sec. 11.04. A public hospital may select
one or more providers of health care
,- services and, except in an emergency, when
medically inappropriate, or when care is not
available, require eligible residents to
obtain care from a provider.
V.T.C.S. art. 44381, 5511.03, 11.04.
You suggest that those provisions are in conflict
with article 4480, as interpreted by Attorney General
Opinion MW-393. As MW-393 pointed out, article 4480 deals
with two types of doctors who may be on the medical staff
of a county hospital: (1) visiting physicians, who
receive no pay, and (2) hospital employees, who receive a
salary in full compensation for all services they render.
Attorney General Opinion MW-393 concluded, based on the
clear language of article 4480, that if visiting
physicians treat indigents at the hospital, they may
receive no pay for such treatment and that if salaried
physicians treat indigents at the hospital, their salary
is their only compensation for doing so. Nothing in the
Indigent Health Care and Treatment Act conflicts with the
language of article 4480 or with the specific holding of
Mw-393. Therefore, the Indigent Health Care and Treatment
Act did not affect the specific holding of MW-393.
There is, however, dicta in MW-393 that suggests that
a county hospital's only authority 'to pay for physician
services is its authority under article 4480. To the
extent that dicta in MW-393 suggests that conclusion, it
has been modified by the Indigent Health Care and
Treatment Act. Section 11.03 of the act gives a county
hospital authority to pay for physician services at
locations other than the county hospital. * V.T.C.S.
art. 4491 (a 1913 statute allowing a county hospital to
contract with a private hospital for the care of indigent
patients). Also, the Indigent Health Care Act may require
a county hospital to provide health-care services that
salaried or visiting physicians are unable to provide. In
such circumstances, we think that the act authorizes a
county hospital to pay physicians other than those
contemplated by article 4480 for providing the required
services.
SUMMARY
The Indigent Health Care and Treatment
Act, article 4438f, V.T.C.S., did not
overrule the holding of Attorney General
p. 4201
Ms. Barbara Walsh
Honorable James L. Rex
Page 4 (JM-866)
Opinion MW-393 (1981). A county hospital is
not authorized to pay a visiting physician
for his services as a visiting physician, -,
and a county hospital is not authorized to
pay a salaried physician additional compen-
sation for treating indigent patients at the
hospital. To the extent, however, that
dicta in MW-393 suggests that a county
hospital's only authority to pay for
physician services is article 4480, it has
been modified.
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
RICK GILPIN
Chairman, Opinion Committee
Prepared by Sarah Woelk
Assistant Attorney General
P. 4202