Could a Texas hospital district close its dental clinic, and would it still have to pay for indigent dental care elsewhere?

Texas AG Opinion DM-37: Closing a Hospital Dental Clinic

Plain-English summary

The El Paso County Hospital District could close its dental clinic. Sections 285.051 and 285.052 allowed a hospital district board to order all or part of a hospital closed by resolution if the board found closure was in the district residents' best interest, subject to an election if the required voter petition was filed. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1991/dm0037.pdf

The harder question was whether closing the clinic left the district responsible for providing or paying for the same urgent and emergent dental services elsewhere. DM-37 did not decide that question. The opinion said neither the Constitution nor the statutes then in force defined the exact medical and hospital services a district had to provide, and it lacked enough information to classify the clinic's particular services. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1991/dm0037.pdf

The opinion treated the choice of specific services as a matter left to the hospital district's governing board unless the Legislature supplied a more exact rule. It stated that hospital districts had to provide at least essential medical services to indigent residents, but it did not decide whether the dental services at issue fell within that minimum. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1991/dm0037.pdf

Currency note

This opinion was issued in 1991. 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.

Who this opinion affected in 1991

Hospital district boards: DM-37 said a board could close a clinic under sections 285.051 and 285.052 if it made the required best-interest finding. The opinion did not identify which urgent or emergency dental services the board remained obligated to fund. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1991/dm0037.pdf

Indigent residents using the clinic: The opinion did not hold that all dental care could be discontinued without replacement. It expressly declined to decide which clinic services were constitutionally or statutorily required. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1991/dm0037.pdf

County and hospital district counsel: The opinion separated authority to close the clinic from the unresolved duty to provide particular services. Closure authority did not itself answer whether the district had to pay another provider. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1991/dm0037.pdf

Common questions

Could the hospital district close only the dental clinic rather than the whole hospital?

Yes. DM-37 read section 285.051 as authorizing closure of all or part of a hospital, including the dental clinic, if the board made the statutory best-interest finding. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1991/dm0037.pdf

Did closing the clinic automatically end all responsibility for indigent dental care?

The opinion did not say so. It noted that closing a hospital did not itself relieve a hospital district of liability for health care services owed to indigent residents, then declined to decide whether the clinic's particular dental services were legally required. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1991/dm0037.pdf

Why did the AG decline to decide whether dental care had to continue?

The governing constitutional and statutory provisions did not define the required service package, and the request did not describe the urgent and emergent dental services in enough detail to classify them. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1991/dm0037.pdf

Who decided which medical services the district provided?

Under the law discussed in DM-37, the opinion said the hospital district's board was responsible for deciding what medical care to provide, while the district still had to meet the constitutional and statutory minimum. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1991/dm0037.pdf

Background and statutory framework

The district operated a clinic with full-time and part-time dentists and dental assistants. The request described its work as urgent and emergent care, not routine fillings, checkups, orthodontics, or cosmetic dentistry, and said about half the patients were indigent adults or children. The district was considering closure because of budget constraints. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1991/dm0037.pdf

Article IX, section 4 of the Texas Constitution required the district to assume responsibility for medical and hospital care for needy county residents. Article IX, section 9A allowed the Legislature to define the services hospital districts had to provide, but DM-37 said the Legislature had not yet exercised that authority with a specific service list. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1991/dm0037.pdf

Chapter 281 authorized the district to furnish medical aid and hospital care to indigent and needy residents but did not define those terms. Health & Safety Code § 61.055 separately said a hospital district should provide the services required by the Constitution and the district's creating statute. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1991/dm0037.pdf

Key source language

DM-37 stated:

"Plainly, these statutory provisions authorize the governing body of the Hospital District to adopt a resolution ordering the closing of the dental clinic if it finds that the closing is in the best interest of the residents of the Hospital District."

"We are unable to determine which, if any, of the services the dental clinic has provided are services that the Hospital District has a constitutional or statutory obligation to provide."

"Therefore, we do not reach the question whether the Hospital District is required to provide 'urgent and emergent' dental services to its indigent residents and would be legally responsible to pay for such services if it does not provide them directly."

Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1991/dm0037.pdf

Citations and references

Constitutional and statutory provisions:

• Tex. Const. article IX, sections 4 and 9A
• Health and Safety Code sections 281.002, 281.046, 285.051, 285.052, and 61.055
• 40 T.A.C. section 14.202(d)(7)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/dan-morales/dm-0037
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1991/dm0037.pdf

Original opinion text

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

O@ffice of the Attorney General
State of Texas

DAN MORALES

ATTORNEY GENERAL

September 9, 1991

Honorable Joe Lucas Opinion No. DM-37

County Attorney

El Paso County Re: Whether a hospital district may
Room 201, City-County Building eliminate dental health clinic services it E] Paso, Texas 79901 currently provides, and if so, whether the

district remains financially responsible for
providing such services to indigent resi-
dents of the hospital district (RQ-88)

Dear Mr. Lucas:

You have asked two questions regarding the duty of the El Paso County Hospital District (the “Hospital District") to provide dental services to indigent residents of the Hospital District: (1) Can the Hospital District eliminate the dental clinic that it currently operates, and (2) If the Hospital District eliminates the dental clinic, will it nonetheless remain financially responsible for dental services rendered by other health care providers to indigent residents of the Hospital District?

We have been informed that the Hospital District is a county-wide hospital district created pursuant to article IX, section 4, of the Texas Constitution and chapter 281 of the Texas Health and Safety Code (formerly article 4494n, V.T.C.S.). The Hospital District operates the R.E. Thomason General Hospital (the “Hospital"). The Hospital District currently employs a full-time dentist, a part-time dentist and several dental assistants who perform, in your words, "urgent and emergent" dental care in a clinic adjacent to the Hospital. Although you do not describe these services in any greater detail, you have informed us that the dental clinic does not provide such services as routine fillings, check-ups, orthodontic work, or cosmetic dentistry. Approximately half of the patients who receive these dental services are indigent adults and children. The Hospital District has operated the

dental services clinic for approximately ten years, but now intends to close it due to budgetary constraints.

The answer to your first question is straightforward. A hospital district’s authority and duties are found in the Texas Constitution, the hospital district’s

p- 181

Honorable Joe Lucas - Page 2 (DM-37)

enabling statute, and provisions of the Health and Safety Code pertaining to hospital districts generally. See generally Health & Safety Code ch. 285; Attorney General Opinion JM-816 (1987) at 2. Section 285.051(a) of the Health and Safety Code (formerly article 4437c-2, V.T.C.S.) specifically authorizes the governing body of a hospital district to order by resolution the closing of all or part of a hospital provided that it finds that the closing is in the best interest of the residents of the hospital district. Section 285.051(b) and section 285.052 provide that the governing body of a hospital district must conduct an election on the closing of a hospital if petitioned to do so by ten percent of the qualified voters of the hospital district.! Plainly, these statutory provisions authorize the governing body of the Hospital District to adopt a resolution ordering the closing of the dental clinic if it finds that the closing is in the best interest of the residents of the Hospital District.

Your second question, however, is more difficult. As you note, the closure of a hospital under the authority of section 285.051 does not relieve a hospital district from liability for paying for health care services for its indigent residents. See Attorney General Opinion JM-864 (1988). In essence, your second query is whether the Texas Constitution or applicable statutes require the Hospital District to provide “urgent and emergent" dental services to indigent residents and impose a

continuing obligation to pay for such services in the event the Hospital District discontinues providing them directly.

Neither the constitution nor the applicable enabling statute specifically defines the services the Hospital District is required to provide to indigent residents. Article IX, section 4, of the Texas Constitution provides in pertinent part:

1See Jackson County Hosp. Dist. v. Jackson County Citizens for Continued Hosp. Care, 669

S.W.2d 147 (Tex. App.--Corpus Christi 1984, no writ); see also Attorney General Opinion JM-864 (1988).

Apparently, the governing board of the Hospital District made the determination at some point in the past that the Hospital District is authorized by the constitution to provide “urgent and emergent” dental services. See Attorney General Opinion H-31 (1973) (stating that hospital district organized under article IX, section 4, may engage only in “medical and hospital care" as authorized by the constitution and holding that hospital district not authorized to perform restaurant, meat, milk, Sewage, or water inspections). We assume for purposes of this opinion that the unspecified "urgent and

emergent” dental services provided by the dental clinic fall within the definition of constitutionally authorized "medical and hospital care."

p. 182

Honorable Joe Lucas - Page 3 (DM-37)

The Legislature may by law authorize the creation of
county-wide Hospital Districts in counties having a population in excess of 190,000... . with power to issue bonds for the purchase, acquisition, construction, maintenance and operation of any county owned hospital ... provided further, that such Hospital District shall assume full responsibility for providing medical and hospital care to needy inhabitants of the county. (Emphasis added.)

In 1985, the voters passed a constitutional amendment, article [X, section 9A, which provides that the legislature

by law may determine the health care services a hospital district is required to provide, the requirements a resident must meet to qualify for services, and any other relevant provisions necessary

to regulate the provision of health care to residents. (Emphasis added.).

To date, however, the legislature has not used this authority to adopt legislation determining the health care services a hospital district is required to provide. See Attorney General Opinion JM-1052 (1989).

Like the constitution, the existing statutory scheme does not define the Services that a hospital district is required to provide to indigent residents. Chapter 281 of the Texas Health and Safety Code, the applicable enabling statute, specifically authorizes counties with at least 190,000 inhabitants to create county- ‘wide hospital districts "to furnish medical aid and hospital care to indigent and neetly persons residing in the district,". Health & Safety Code § 281.002, but does not define “medical aid and hospital care." Section 281.046 of the enabling statute, which requires such hospital districts to assume full responsibility for furnishing "medical and hospital care" for indigent and needy persons residing in the district as of the date on which taxes are collected, is similarly silent. Nor has the legislature

given any guidance elsewhere pertaining to the services hospital districts are required to provide. |

p. 183

Honorable Joe Lucas - Page 4 (DM-37)

You appear to contend that because regulations? promulgated pursuant to the Indigent Health Care and Treatment Act‘ provide that counties are not generally required to provide dental care and because the Texas Oral Health Improvement ActS authorizes the Texas Department of Health to provide certain dental services to indigents, the legislature has implicitly recognized that all dental care is not "medical and hospital care." On this basis, you conclude that "urgent and emergent” dental care is not a service that hospital districts are required to provide. We are not persuaded, however, that this is necessarily the case for several reasons. First, even assuming that the Indigent Health Care and Treatment Act excludes all dental care from coverage, nowhere has the legislature indicated that the responsibilities of hospital districts and counties for indigent health care are identical in all respects. We believe that the Indigent Health Care and Treatment Act cannot necessarily be interpreted to define indirectly the services hospital districts are required to provide. Indeed, the Indigent Health Care and Treatment Act expressly acknowledges that the duties of hospital districts are separately defined, stating that "[a] hospital district shall provide the health care services required under the Texas Constitution and the statute creating the district." Health & Safety Code § 61.055 (emphasis added).6

Furthermore, we cannot accept without question your assumption that the Indigent Health Care and Treatment Act excludes ail dental care, including "urgent and emergent” dental care, from coverage. The applicable regulations promulgated under the Indigent Health Care and Treatment Act provide that dental care is excluded from coverage "unless the service is covered as a physician service when provided by a licensed physician, and the dentist ... can provide the service within the scope of his license." 40 T.ALC. § 14.202(d)(7). With no specific information about the “urgent and emergent" dental care the Hospital provides, we cannot exclude the possibility that at least some of these services are covered under the foregoing regulations. Thus, we cannot concur in your assumption that such services

3See 40 TAC. §§ 14.202(4(N, 14.203(c)(2)(B).

‘Health & Safety Code ch. 61 (formerly article 44386, V.T.CS.).

SHealth & Safety Code ch. 43 (formerly article 4418g-2, V.T.CS,).

§See also Attorney General Opinions JM-953 (1988) at 3 n.1 ("The Indigent Health Care and Treatment Act does not affect the obligations of hospital districts."); JM-722 (1987) at 3 ("The Indigent

Health Care Act does not alter, or attempt to alter, the responsibility of a hospital district for all health care required by” the Texas Constitution and enabling statute.).

p. 184

Honorable Joe Lucas - Page 5 (DM-37)

are not covered under the Indigent Health Care and Treatment Act or your conclusion that therefore the dental services currently provided by the Hospital District are not constitutionally or statutorily required services.

In the absence of express guidance in the Texas Constitution or statutes, and in light of article IX, section 9A, which reserves to the legislature the as of yet unexercised authority to adopt legislation determining the health care services that hospital districts are required to provide, this office has repeatedly refrained from defining “health care services" or "medical and hospital care" with greater specificity, observing that

{iJn regard to medical care for the needy, it is the responsibility of the board of directors of a hospital district to determine what medical care is to be provided.

Attorney General Opinion JM-1052 at 4:7 see also Attomey General Opinions M-1154 (1972); M-85 (1967); Attorney General Letter Opinion LO88-33 (1988). See generally Attorney General Opinion JM-816 at 3. Certainly, the Texas Constitu- tion and statutory law require hospital districts to provide at least essential medical Services to their indigent residents. Whether a hospital district must provide a specific service, however, is a matter that the legislature has chosen by default to leave to the governing body of a hospital district. We are unable-to determine which, if any, of the services the dental clinic has provided are services that the Hospital District has a constitutional or statutory obligation to provide. Therefore, we do not reach the question whether the Hospital District is required to provide “urgent and emergent" dental services to its indigent residents and would be legally responsible to pay for such services if it does not provide them directly.

SUMMARY

The El Paso County Hospital District is statutorily
authorized by Health and Safety Code sections 285.051 and 285.052 to close its dental clinic. This office cannot opine on

TAttorney General Opinion JM-1052 addressed language in article IX, section 9, of the Texas Constitution which provides that hospital districts established pursuant to its provisions "shall assume full responsibility for providing medical and hospital care for its needy inhabitants.” This language is

almost identical to the parallel language in article IX, section 4, applicable to the Hospital District at issue here.

p. 185

Honorable Joe Lucas - Page 6

whether the Hospital District is constitutionally or statutorily

(DM-37)

required to provide “urgent and emergent" dental services to indigent residents and is required to pay for such services if it does not provide them directly.

WILL PRYOR
First Assistant Attorney General

MARY KELLER
Executive Assistant Attorney General

JUDGE ZOLLIE STEAKLEY (Ret.)
Special Assistant Attorney General

RENEA HICKS
Special Assistant Attorney General

MADELEINE B. JOHNSON
Chair, Opinion Committee

Prepared by Mary R. Crouter
Assistant Attorney General

Very truly yours, ; (
Da N- Ss

DAN MORALES
Attorney General of Texas

• 186