If a Texas county closes its county hospital, can it still change who qualifies for county-funded indigent health care?

Texas AG Opinion JM-1108: Can a County That Closed Its Hospital Change Indigent-Care Eligibility?

Plain-English summary

Shelby County had closed its public hospital but still owed a duty to provide indigent health care under the Indigent Health Care and Treatment Act. The county attorney asked the Attorney General a practical question: now that the hospital is closed, can the county still tighten the rules for who qualifies for that county-funded care?

The Attorney General said yes. The Act treats a county that owns a public hospital differently from a bare county. A county with a public hospital follows the standards that apply to public hospitals, not the separate standards that apply to counties without one. When a county closes, sells, or leases its hospital, section 61.064 requires it to keep providing mandatory health-care assistance and to adopt the eligibility standards the hospital "was or would have been required to adopt." The county attorney worried that this locked the county into a fixed set of standards permanently.

The opinion read the statute the other way. The point of section 61.064 is that a county that closes its hospital continues to be governed by the eligibility rules for public hospitals, rather than dropping down to the looser county rules. It does not mean the standards are frozen for all time. Section 61.063, which lays out how a public hospital may make its eligibility standards more restrictive, is itself one of the public-hospital rules. So a county that closed its hospital may use section 61.063 to tighten its standards, provided it goes through that section's process: publishing newspaper notice at least 90 days before the change, holding a public meeting at least 30 days before it, letting the public testify, and formally finding that the change would not have a detrimental effect on residents' access to health care. The opinion also noted, in passing, that a hospital may loosen its eligibility standards at any time; the burdensome section 61.063 process applies only when it wants to make them more restrictive.

Currency note

This opinion was issued in 1989. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

The Indigent Health Care and Treatment Act had just been recodified from article 4438f, V.T.C.S., into chapter 61 of the Health and Safety Code when this opinion issued, and its eligibility, notice, and closed-hospital provisions have been amended since. Anyone dealing with a present-day county indigent-care question should work from the current Health and Safety Code chapter 61 and the Department of State Health Services rules rather than the 1989 section numbers here.

Who this opinion affected (as of 1989)

Counties that had closed a public hospital: The opinion told them they were not stuck with a permanently fixed set of eligibility standards. They remained on the public-hospital track and could adjust standards, including tightening them, through the statutory process.

County commissioners and hospital governing bodies: The opinion reminded them that making standards more restrictive was not a simple vote. It required advance newspaper notice, a public hearing, public testimony, and a formal finding of no detrimental effect on access to care.

Indigent residents relying on county care: For patients, the practical protection was the process itself. A county could tighten eligibility only after public notice and a hearing, and only if it formally found the change would not harm residents' access to health care.

Common questions

Does closing the county hospital lock in the old eligibility standards?
No. The Attorney General read section 61.064 to keep the county on the public-hospital eligibility track, not to freeze its standards permanently. The county may still adjust them.

Can the county make eligibility more restrictive after closing the hospital?
Yes, by using section 61.063. Because that section is one of the rules governing eligibility standards for public hospitals, a county that closed its hospital may use it to tighten standards.

What does the county have to do to tighten eligibility?
It must publish notice in a general-circulation newspaper at least 90 days before the change, hold a public meeting at least 30 days before it at a convenient time and place, allow public testimony, and formally find that the change would not have a detrimental effect on residents' access to health care.

Is it just as hard to make standards more generous?
No. The opinion noted that a public hospital may make its eligibility standards less restrictive at any time. The section 61.063 process applies only to changes that make standards more restrictive.

Background and statutory framework

Under the Indigent Health Care and Treatment Act, then newly recodified as chapter 61 of the Health and Safety Code (formerly article 4438f, V.T.C.S.; Acts 1989, 71st Leg., ch. 678, § 1), a public hospital must provide certain health-care services to eligible residents of the area it has a legal obligation to serve. The Act defines a "public hospital" as a hospital owned, operated, or leased by a governmental entity, and a "governmental entity" as a county, municipality, or other political subdivision, but not a hospital district or hospital authority. Health & Safety Code § 61.002. A county hospital is therefore a public hospital, and a county that has one is subject to the Act's public-hospital provisions rather than its provisions governing counties (see § 61.023). The services a public hospital must provide differ from those a bare county must provide (§§ 61.028, 61.054).

Section 61.052 governs eligibility standards for public hospitals. A public hospital must adopt standards at least no more restrictive than those the Department of Health sets under section 61.006, and if it used less restrictive standards in the operating year that ended before January 1, 1985, it must keep them. A public hospital may make its standards more restrictive only by complying with section 61.063, which requires: newspaper notice of the proposed change at least 90 days before its effective date (in addition to the notice required by the open meetings law), a public meeting at least 30 days before the effective date at a convenient time and place where members of the public may testify, and, before adopting the change, a formal finding by the hospital's governing body that the change would not have a detrimental effect on access to health care. A hospital may make its standards less restrictive at any time. § 61.052(d).

When a governmental entity closes, sells, or leases its public hospital, section 61.064 requires it to continue providing mandatory health-care assistance, to adopt the eligibility standards the hospital "was or would have been required to adopt," and to provide the same services the hospital was or would have been required to provide as of the date of closing. The question was how sections 61.063 and 61.064 fit together. The Attorney General interpreted section 61.064's command to adopt the standards the hospital would have been required to adopt as keeping the county governed by public-hospital eligibility rules, not as fixing its standards for all time. Because section 61.063 is itself a public-hospital eligibility provision, a county that has closed its hospital may avail itself of it to make its standards more restrictive.

Citations

Statutory authorities (Indigent Health Care and Treatment Act, Health & Safety Code ch. 61):

• § 61.002 (definitions of "public hospital" and "governmental entity")
• § 61.006 (Department of Health eligibility standards); § 61.023 (county eligibility standards); §§ 61.028, 61.054 (services required)
• § 61.052 (public-hospital eligibility standards; § 61.052(d) allows loosening standards at any time)
• § 61.063 (procedure to make eligibility standards more restrictive: notice, public meeting, no-detrimental-effect finding)
• § 61.064 (obligations of a governmental entity that closes, sells, or leases a public hospital)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/jim-mattox/jm-1108
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1989/jm1108.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor OCR errors may remain; the linked PDF is authoritative.

October 10, 1989

Honorable Gary W. Rholes
Shelby County Attorney
104 Church Street
Center, Texas 75935

Opinion No. JM-1108

Re: Whether a county that has closed a public hospital may change its eligibility standards for indigent health care applicants (RQ-1669)

Dear Mr. Rholes:

You ask the following question about the Indigent Health Care and Treatment Act:

Can a county that has closed a public hospital avail itself of Section 13.02 of the Indigent Health Care and Treatment Act to change its eligibility standards for applicants for indigent health care?

Under the Indigent Health Care and Treatment Act, Health & Safety Code ch. 61,[1] a public hospital must provide certain health care services to eligible residents of the area the public hospital has a legal obligation to serve. A county hospital is a public hospital.[2] Therefore, a county that has a public hospital is subject to the provisions of the act governing public hospitals rather than the provisions governing counties.[3] See generally Health & Safety Code § 61.023 (eligibility standards for counties).

[1] The Indigent Health Care and Treatment Act was previously codified as article 4438f, V.T.C.S. It has now been recodified as chapter 61 of the Health and Safety Code. Acts 1989, 71st Leg., ch. 678, § 1, at 2292.

[2] The act defines "public hospital" as "a hospital owned, operated, or leased by a governmental entity." Health & Safety Code § 61.002(8); see also Acts 1989, 71st Leg., ch. 500, § 1, at 1685 (amending definition of "public hospital"). A "governmental entity" includes "a county, municipality, or other political subdivision of the state, but does not include a hospital district or hospital authority." Health & Safety Code § 61.002(7).

[3] The services a public hospital is required to provide are not the same as the services a county is required to provide. See Health & Safety Code §§ 61.028, 61.054.

Section 61.052 of the act governs eligibility standards for public hospitals. In short, section 61.052 provides that a public hospital must adopt eligibility standards that are at least no more restrictive than the standards established by the Department of Health under section 61.006 of the act. If, in the operating year that ended before January 1, 1985, the hospital used less restrictive standards than those established by the Department of Health, the hospital must retain those standards. A public hospital may change its eligibility standards to make them more restrictive[4] only if it complies with the rather burdensome requirements of section 61.063, which provides:

(a) A public hospital may not change its eligibility standards to make the standards more restrictive and may not reduce the health care services it offers unless it complies with the requirements of this section.

(b) Not later than the 90th day before the date on which a change would take effect, the public hospital must publish notice of the proposed change in a newspaper of general circulation in the hospital's service area and set a date for a public hearing on the change. The published notice must include the date, time, and place of the public meeting. The notice is in addition to the notice required by the open meetings law, Chapter 271, Acts of the 60th Legislature, Regular Session, 1967 (Article 6252-17, Vernon's Texas Civil Statutes).

(c) Not later than the 30th day before the date on which the change would take effect, the public hospital must conduct a public meeting to discuss the change. The meeting must be held at a convenient time in a convenient location in the hospital's service area. Members of the public may testify at the meeting.

(d) If, based on the public testimony and on other relevant information, the governing body of the hospital finds that the change would not have a detrimental effect on access to health care for the residents the hospital serves, the hospital may adopt the change. That finding must be formally adopted.

Health & Safety Code § 61.063.

[4] When all the provisions of the Indigent Health Care and Treatment Act are read together, it is evident that a public hospital cannot use the procedures set out in section 61.063 to make its standards more restrictive than those established by the Department of Health. See, e.g., Health & Safety Code § 61.052(e) (providing that if the Department of Health makes its eligibility standards less restrictive, the public hospital must change its standards to at least comply with the department's standards).

A county that closes its public hospital is subject to the following provision:

Sec. 61.064. TRANSFER OF A PUBLIC HOSPITAL. (a) A governmental entity that owns, operates, or leases a public hospital and that closes, sells or leases the hospital:

(1) has the obligation to provide mandatory health care assistance under this chapter;

(2) shall adopt the eligibility standards that the hospital was or would have been required to adopt; and

(3) shall provide the same services the hospital was or would have been required to provide under this chapter on the date of the closing, sale, or lease.

Health & Safety Code § 61.064.

Your question is whether a county that has closed its public hospital and is thus subject to section 61.064 may avail itself of the provisions of section 61.063 to make its eligibility standards more restrictive. Your question requires us to determine the combined effect of section 61.063 and section 61.064. Section 61.064 requires a county that closes its hospital to adopt the eligibility standards that the county hospital would have been required to adopt. We interpret that language to mean that a county that closes its hospital will continue to be governed by the eligibility requirements applicable to public hospitals rather than the requirements applicable to counties. We do not interpret it to mean that a county that closes its county hospital must adopt eligibility standards that are fixed for all time. Because section 61.063 is a provision governing eligibility standards for public hospitals, a county that has closed its county hospital may avail itself of the provisions of section 61.063.[5]

[5] Although you ask about making eligibility standards more restrictive, we note that a public hospital may make its eligibility standards less restrictive at any time. Health & Safety Code § 61.052(d). Section 61.063 applies only when a public hospital wishes to make its eligibility standards more restrictive.

SUMMARY

A county that closes its county hospital may avail itself of the provisions of section 61.063 of the Indigent Health Care and Treatment Act, Health and Safety Code, chapter 61.

Very truly yours,

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