Did Rider 47 unlawfully conflict with the Texas Human Resources Code by blocking appropriated funds for increased hospital and long-term-care costs?

Texas AG Opinion JM-860: Rider 47 and Provider Costs

Plain-English summary

The Department of Human Resources asked whether Rider 47 conflicted with Human Resources Code section 22.014. The Attorney General concluded that the rider "does not conflict" with section 22.014(c). Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1988/jm0860.pdf

Section 22.014 required written verification that funds were available to reimburse hospital or long-term-care providers for increased costs caused by certain new rules. Rider 47 prohibited using appropriated funds "as a source of funding" for that verification unless the rule was federally required. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1988/jm0860.pdf

The AG treated the rider as a valid limit on appropriated funds rather than a change to general law. The opinion said a valid rider may "detail, limit, or otherwise restrict the use of appropriated funds." Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1988/jm0860.pdf

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

Did Rider 47 conflict with section 22.014(c)?

No. The opinion said Rider 47 "merely limits the use of appropriated funds" and was therefore valid. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1988/jm0860.pdf

Could the department verify that appropriated funds were available for the increased costs?

Not for the new rules covered by Rider 47. The summary said the department "may not verify that appropriated funds are available" to reimburse the increased provider costs. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1988/jm0860.pdf

Did section 22.014 force the legislature to appropriate money for every new rule?

No. The AG said that outlining a procedure for higher-cost rules "does not mean that the legislature must appropriate funds" to pay for any or all of them. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1988/jm0860.pdf

What exceptions did the opinion identify?

The footnote said Rider 47 was inapplicable to rules required by federal law and to cases where the health commissioner certified that a rule was "urgent as well as necessary" to protect recipients' health or safety. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1988/jm0860.pdf

Background and statutory framework

Section 22.014 required three agencies to adopt a memorandum of understanding defining responsibility for hospital and long-term-care services. It also required fiscal notes and funding verification for certain rules that increased provider costs or staffing. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1988/jm0860.pdf

The opinion applied the rule that an appropriations rider is invalid when it conflicts with general law, but may validly prohibit an agency from using appropriated funds for an otherwise authorized activity. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1988/jm0860.pdf

Citations and references

• Human Resources Code § 22.014
• Human Resources Code § 22.014(c), (e)
• General Appropriations Act for 1988-89 biennium, Rider 47
• Jessen Associates, Inc. v. Bullock, 531 S.W.2d 593 (Tex. 1975)
• Moore v. Sheppard, 192 S.W.2d 559 (Tex. 1946)
• Attorney General Opinions V-1254 (1951) and M-499 (1969)

Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1988/jm0860.pdf

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/jim-mattox/jm-0860
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1988/jm0860.pdf

Original opinion text

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

THE ATTORNEY GENERAL
OF TEXAS

February 19, 1988

JIM MATTOX
ATTORNEY GENERAL

Mr. Marlin W. Johnston
Commissioner
Texas Department of Human Resources
P. O. Box 2960
Austin, Texas 78769

Opinion No. JM-860

Re: Whether Rider 47 of the current appropriation for the Texas Department of Human Services conflicts with section 22.014 of the Human Resources Code (RQ-1242)

Dear Mr. Johnston:

You ask whether Rider 47 to the current appropriation for the Department of Human Services conflicts with section 22.014 of the Human Resources Code.

Section 22.014 of the Human Resources Code provides:

(a) The department [of Human Services], the Texas Department of Health, and the Texas Department of Mental Health and Mental Retardation shall adopt a memorandum of understanding that:

(1) clearly defines the responsibilities of each agency in providing, regulating, and funding hospital or long-term care services; and

(2) defines the procedures and standards that each agency will use to provide, regulate, and fund hospital or long-term care services.

(b) The memorandum must provide that no new rules or regulations that would increase the costs of providing the required services or would increase the number of personnel in hospital or long-term care facilities may be promulgated by either the department, the Department of Health, or the Department of Mental Health and Mental Retardation unless the commissioner of health certifies that the new rules or regulations are urgent as well as necessary to protect the health or safety of recipients of hospital or long-term care services.

(c) The memorandum must provide that any rules or regulations proposed by the department, the Department of Health, or the Department of Mental Health and Mental Retardation which would increase the number of personnel in hospital or long-term care facilities must be accompanied by a fiscal note prepared by the agency proposing said rules and submitted to the department. The fiscal note should set forth the expected impact which the proposed rule or regulation will have on the cost of providing the required service and the anticipated impact of the proposed rule or regulation on the number of personnel in hospital or long-term care facilities. The memorandum must provide that in order for a rule to be finally adopted the department must provide written verification that funds are available to adequately reimburse hospital or long-term care service providers for any increased costs. The department is not required to provide written verification if the commissioner of health certifies that a new rule or regulation is urgent as well as necessary to protect the health or safety of recipients of hospital or long-term care services.

(d) The memorandum must provide that upon final adoption of any rule increasing the cost of providing the required services, the department must establish reimbursement rates sufficient to cover the increased costs related to the rule. The department is not required to establish reimbursement rates sufficient to cover the increased cost related to a rule or regulation if the commissioner of health certifies that the rule or regulation is urgent as well as necessary to protect the health or safety of recipients of hospital or long-term care services.

(e) The memorandum must provide that Subsections (b) through (d) of this section do not apply if the rules are required by state or federal law or federal regulations.

(f) These agencies in the formulation of this memorandum of understanding shall consult with and solicit input from advocacy and consumer groups.

(g) Not later than the last month of each state fiscal year, the department and the other agencies shall review and update the memorandum.

(h) Each agency by rule shall adopt the memorandum of understanding and all revisions to the memorandum. (Emphasis added.)

Your question is in regard to the requirement in section 22.014 that the Department of Human Services verify that funds are available to pay costs that would be incurred because of new rules or regulations affecting hospitals and long-term care facilities. Hum. Res. Code § 22.014(c). Such verification is not required when the new rule or regulation is required by federal law or when the commissioner of health certifies that the new rule or regulation is urgent as well as necessary to protect the health or safety of recipients of hospital or long-term care services. Hum. Res. Code § 22.014(c) and (e).

Rider 47 to the appropriation for the Department of Human Services provides:

None of the funds appropriated in this Act may be used as a source of funding for a written verification that funds are available to adequately reimburse hospital or long-term service providers for implementation of rules or regulations promulgated by either the Department of Health or Department of Human Services which increase the cost of providing such services, unless the rule or regulation is required by federal statute, rule or regulation.

General Appropriations Act for 1988-89 biennium, Acts 1987, 70th Leg., 2d C.S., ch. 78, art. II, § 1, at 844 (II-43). Rider 47 prohibits the use of appropriated funds as the basis for verifying, as required by section 22.014(c) of the Human Resources Code, that funds are available to pay the costs of a proposed rule or regulation. You ask the following question:

Is DHS precluded by Rider [47] from making a written verification that appropriated funds are available to reimburse providers for increased costs resulting from new Health Department rules if they are not federally required even when it is the Department's determination that such funds are actually available?

A rider to an appropriations bill is invalid if it conflicts with general law. See Jessen Associates, Inc. v. Bullock, 531 S.W.2d 593, 600 (Tex. 1975); Moore v. Sheppard, 192 S.W.2d 559 (Tex. 1946). To be valid, a rider may do no more than detail, limit, or otherwise restrict the use of appropriated funds. Moore v. Sheppard, supra; Attorney General Opinion V-1254 (1951). A rider may, however, prohibit a state agency from using appropriated funds for activities that the agency is otherwise authorized to conduct. See, e.g., Attorney General Opinion M-499 (1969).

The rider set out above merely limits the use of appropriated funds by prohibiting the use of such funds for paying costs attributable to new rules and regulations that increase the cost of hospital and long-term care services. The fact that general law outlines a procedure for the promulgation of rules that would increase the cost of hospital and long-term care does not mean that the legislature must appropriate funds to pay the costs of any or all such rules. Because the rider in question merely limits the use of appropriated funds, we conclude that it is a valid rider.1 Therefore, the department may not verify that appropriated funds are available to reimburse providers for increased costs related to new rules governing hospital and long-term care services.

1. We note that no verification of available funds is necessary when federal law requires the new rule or regulation or when the commissioner of health certifies that the new rule or regulation is urgent as well as necessary to protect the health or safety of recipients of hospital or long-term care services. Hum. Res. Code § 22.014(c) and (e). Rider 47 is therefore inapplicable to rules or regulations required by federal law and to cases in which the commissioner of health has certified that the new rule or regulation is urgent as well as necessary to protect the health or safety of recipients of hospital or long-term care services.

SUMMARY

Rider number 47 to the appropriation for the Department of Human Services does not conflict with section 22.014(c) of the Human Resources Code. Therefore, the department may not verify that appropriated funds are available to reimburse providers for increased costs related to new rules governing hospital and long-term services.

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