Could a Texas county hospital pay visiting physicians or give salaried staff extra compensation for treating indigent patients?

Texas AG Opinion JM-866: County Hospital Physician Pay

Plain-English summary

The Ward County auditor and Andrews County attorney asked whether the Indigent Health Care and Treatment Act had changed Attorney General Opinion MW-393. That earlier opinion read article 4480 to prohibit county hospitals from paying visiting physicians for treating indigent patients at the hospital and from giving salaried staff physicians additional compensation for the same work.

The Attorney General concluded that the newer Act did not change that specific holding. Article 4480 still described visiting physicians as serving without county pay, and it treated salaries paid to hospital officers and employees as full compensation for their services.

The newer Act did broaden a county hospital's authority in another respect. It allowed a public hospital to arrange health care through a local health department, a publicly owned facility, a contract with a private provider regardless of location, insurance, regional affiliations, or selected providers.

Accordingly, the opinion modified MW-393 only to the extent its broader language suggested that article 4480 was the hospital's sole authority to pay for physician services. A county hospital could pay for services at other locations and could pay physicians outside the visiting and salaried categories when those physicians were needed to provide required indigent care.

Currency note

This opinion was issued in 1988. 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.

Common questions

Could a visiting physician be paid for treating indigent patients at the county hospital?

No. The opinion adhered to MW-393's reading of article 4480, which required visiting physicians to serve without county pay.

Could a salaried hospital physician receive extra compensation for indigent care?

No. Article 4480 treated the physician's salary as full compensation for services rendered in that role.

Did the Indigent Health Care and Treatment Act completely preserve MW-393?

It preserved the specific compensation holding but modified broader dicta suggesting that article 4480 was the only source of authority to pay for physician services.

Could the hospital contract with a private provider outside the county hospital?

Yes. Section 11.03 allowed arrangements with a private provider regardless of the provider's location.

Could the hospital pay a physician who was neither a visiting physician nor a salaried staff physician?

The opinion said it could when required health care services could not be provided by the visiting or salaried physicians contemplated by article 4480.

Background and statutory framework

Article 4480 divided county-hospital physicians into visiting physicians, who served without county pay, and hospital employees, whose salaries were full compensation for all services rendered. MW-393 applied that language to indigent treatment at the hospital.

Article 4438f, the Indigent Health Care and Treatment Act, specified the obligations of counties, public hospitals, and hospital districts. A county hospital counted as a public hospital and therefore followed the provisions applicable to public hospitals.

Section 11.03 allowed a public hospital to arrange services through public facilities, private-provider contracts, insurance, and regional affiliations. Article 4438f, § 11.04, allowed the hospital to select providers and, subject to stated exceptions, require eligible residents to obtain care from those providers.

The Attorney General reconciled the statutes by preserving article 4480's compensation limits for its two physician categories while recognizing the newer Act's separate authority to obtain required services through other arrangements.

Citations

Statutory materials:

• V.T.C.S. articles 4438f, 4478, 4480, 4484, 4486, and 4491

Prior Attorney General materials referenced:

• O-2422 (1940)
• M-379 (1969)
• MW-393 (1981)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/jim-mattox/jm-866
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1988/jm0866.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Obvious character-level OCR errors have been corrected, but minor errors may remain; the linked PDF is authoritative.

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 appropriation made therefore by the commissioners court, and such salaries shall be compensation 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 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, § 1.02(10); art. 4478. Therefore, a county hospital is governed by the provisions applicable to public hospitals rather than the provisions applicable to counties. See V.T.C.S. art. 4438f, §§ 2.01, 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. § 10.01. 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

V.T.C.S. art. 4438f, §§ 11.01, 3.01. The Department of Human Resources has the authority to promulgate rules more specifically defining the required services. Id. § 1.06.

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.

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. 4438f, §§ 11.03, 11.04.¹

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. See 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 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 compensation 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