Honorable Carl A. Parker           Opinion No. JM-754
Chairman
Education Committee                Re:   Whether the governor has the
Texas State Senate                 the authority to sign certificates
P. 0. Box 12068                    of need required by federal agency
Austin, Texas 78711

Dear Senator Parker:

     You ask whether the governor of Texas has the authority to sign
certificates of need required by the Department of Housing and Urban
Development pursuant to 12 U.S.C. section 1715w(d)(4)(A). Before we
can address your specific question, we must explain the history of the
Nationai Health Planning and Resources Development Act of 1974, a
federal statute that was repealed in 1986, and we must also explain
the history of the Texas Health Facilities Commission.

     The National Health Planning and Resources Development Act of
1974, 42 U.S.C. §§300k et seq. (repealed by Act of Nov. 14, 1986, Pub.
L. No. 99-660, 100 Stat. 3799), provided for national, regional, and
state health care planning and development. The act authorized the
Secretary of Health and Human Services and the governor of a state to
enter into an agreement designating a state agency to administer the
state administrative program provided for in the federal act. See 42
U.S.C. 930Om(b)(l)(repealed by Act of Nov. 14, 1986, -1.        -The
Secretary could not enter into such an agreement, however, unless he
was satisfied that the designated state agency had the authority and
resources to     administer the    state   program.    See 42   U.S.C.
530Om(b)(l)(B)(repealed by Act of Nov. 14, 1986, =I..          If the
Secretary and the governor of a particular state failed to reach an
agreement designating a state agency to administer the state program,
the state could lose certain federal funds.             See 42 U.S.C.
$30Om(d)(repealed by Act of Nov. 14, 1986, supra).     -

     One of the functions~a designated state agency was required to
perform was the administration of a state certificate of need program.
See 42 U.S.C. 530Om-2(a)(4)(B)(repealed by Act of Nov. 14, 1986,
supra) . In 1975 the Texas legislature enacted the Health Planning and
Development Act, which created the Texas Health Facilities Commission,
to implement the National Health Planning and Resources Development
Act of 1974. Acts 1975, 64th Leg., ch. 323 at 832; V.T.C.S. art.




                                 p. 3512
Honorable Carl A. Parker - Page 2   (JM-754)




4418h. §1.02. The Health Facilities Commission was given authority to
administer a state certificate of need program. V.T.C.S. art. 4418h.
§2.06(l)(expired Sept. 1, 1985).      Because the Health Facilities
Commission was "administratively attached to the Texas Department of
Health Resources," article 441811, 52.01, V.T.C.S., it is not clear
whether the Department of Health Resources (now the Department of
Health) or the Health Facilities Commission itself was intended to be
the state agency designated to administer the federal plan. See
V.T.C.S. art. 4418h. §4.01, .(naming the Department of Health as the
state health planning and development agency for Texas); see generally
Final Report of the Sunset Advisory Commission to the Governor of
Texas   and   Members    of   the    Sixty-ninth   Legislature   (Jan.
1985)(indicating that the Department of Health Resources was intended
to be the state agency designated under the federal statute).

     The Health Facilities Commission was subject to sunset review in
1985.   See Gov't. Code lP325.001 through 325.021 (sunset law).
Because the legislature did not continue the existence of the Health
Facilities Commission, the provisions in article 4418h that
established the commission and the certificate of need program expired
on September 1, 1985.' Texas Sunset Act, Acts 1977, 65th Leg., ch.
735, art. 2, 52.114 at 1848. After the expiration of those provisions
there was no longer a requirement under Texas law that health
facilities obtain a certificate of need: nor was there a state agency
with authority to issue certificates of need.

     We now turn to your specific question. You ask whether the
governor has authority to sign certificates of need to satisfy the
requirements of a federal statute that provides for federal mortgage
insurance for nursing homes and certain other health-care facilities.
12 U.S.C. 0171%.   Subsection (d)(4)(A) of that statute provides:

            With respect to nursing homes and intermediate
         care facilities and combined nursing home and
         intermediate care  facilities, the Secretary [of
         Housing and Urban Development] shall not insure
         any mortgage under this section unLess he has
         received, from the State agency designated in
         accordance with section 291d(a)(l) or section 3OOm
         of title 42 for the State in which is located the
         nursing home or intermediate care facility or
         combined nursing home and intermediate care facil-
         ity covered by the mortgage,,a certification that
         (I) there is a need for such home or facility or
         combined home and facility, and (ii) there are in
         force in such State or in the municipality or
         other political subdivision of the State in which
         the proposed home or facility or combined home and
         facility is to be located reasonable minimum




                               p. 3513
    Honorable Carl A. Parker - Page 3    (JM-754)




             standards of licensure and, methods of operation
             governing it. No such mortgage shall be insured
             under this section unless the Secretary has
             received such assurance as he may deem satisfact-
             ory from the State agency that such standards will
             be applied and enforced with respect to any home
             or facility or combined home and facility located
             in the State,for which mortgage insurance is pro-
             vided under this section. (Emphasis added).

    In short, section 1715w(d)(4)(A) requires an appropriate state agency
    to make certifications to the Secretary of Housing and Urban
    Development that there is a need for the facility in question and that
    the state has appropriate licensing standards for the type of facility
    in question. Apparently you are using the term "certificate of need"
    as a shorthand description for the certifications that are to be made
    by one of the agencies named in section 1715w(d)(4)(A). Your specific
    question, however, is not whether the governor now has the authority
    that the Health Facilities Commission had under the now expired
    provisions of article 4418h, but whether the governor has authority to
    make the certifications required by the federal government under
    section 1715w(d)(4)(A).

         Under the still extant provisions of article 4418h, the governor
    has authority to perform certain functions:

                 (a) As the chief executive and planning
              officer of this state, the governor is authorized
              to perform those duties and functions assigned to
              him by federal law. The governor is authorized to
I             transfer personnel, equipment, records, obliga-
              tions, appropriations, functions, and duties of
              his office to another agency.

                 (b) The governor by executive order may
              establish a capital expenditure review program in
              compliance with federal law if the governor finds
              that such a review program is necessary to prevent
              the loss of federal funds. The governor's find-
              ings, including a brief description of the reason
              for the findings, must be included in the text of
              an order issued under this subsection.          If
              necessary, the governor may use any available
              funds to implement this subsection.

                 (c) An executive order issued under Subsection
              (b) of this section expires on the September 1
              that follows the next regular session of the leg-
              islature that begins after the date the order is




                                        p. 3514
Honorable Carl A. Parker - Page 4   (JM-754)




          issued, unless an earlier date is specified in the
          order, or unless the governor rescinds the order
          before that time.

            (d) The program established by an executive
         order issued under Subsection (b) of this section,
         when authorized by the governor, may negotiate an
         agreement with the Secretary of Health and Human
         Services on behalf of the State of Texas to
         administer a state capital expenditure review
         program pursuant to Section 1122 of the Social
         Security Act, the federal rules and regulations
         promulgated under that Act, and other pertinent
         federal authority, if after thorough review and
         study, the governor determines that such a review
         program would be necessary to prevent the loss of
         federal funds.

V.T.C.S. art. 4418h. §1.05.       (Subsection (a) was amended and
subsections (b), (c), and (d) were added by Acts 1985, 69th Leg., ch.
931 art. 2, 52 at 3126). See expired V.T.C.S. art. 4418h. 92.11
(authorizing the Health Facilities Commission to administer a capital
expenditure review program pursuant to section 1122 of the Social
Security Act, 42 U.S.C. §1320a-1). Apparently you are asking whether
those provisions authorize the governor to make the certifications
required under 12 U.S.C. section 1715w(d)(4)(A).

     Section 1715w(d)(4)(A) requires those certifications to be made
by agencies designated under other federal statutes. The certifica-
tions required under section 1715w(d)(4)(A) must be made by either the
state agency designated under section 291(d)(a)(l) of Title 42 of the
United States Code or by the state agency designated under section
300m of Title 42. The first of those federal statutes, 42 U.S.C.
section 291d(a)(l). is part of a federal grant program for assisting
states in constructing and modernizing certain medical facilities.
See 42 U.S.C. 95291 et seq. Section 291d(a)(l) provides that a state
ziring    to participate in the program must submit a state plan
designating a single state agency as the sole agency for administra-
tion of the plan. Any such plan and modification to such a plan must
be approved by the Surgeon General. 42 U.S.C. §291d(b). The other
federal statute referred to in section 1715w(d)(4)(A) is 42 U.S.C.,
section 3OOm. which was the provision of the now repealed National
Health Planning and Resources Development Act of 1974 that authorized
the Secretary of Health and Human Services to enter into an agreement
with a governor designating a state agency to administer the state
administrative program provided for in the federal act. Thus, only a
state agency that is the agency approved by the appropriate federal
agency under section 291(d) or agreed to by the appropriate federal
agency under section 300m would have authority under federal law to




                                p. 3515
Honorable Carl A. Parker - Page 5     (JM-754)




make the certifications required by section 1715&d)(4)(A). Article
4418h. V.T.C.S., itself cannot give the governor the authority to make
the certifications required by section 1715w(d)(4)(A). Thus, even if
the governor's powers under section 1.05 of article 4418h, V.T.C.S.,
included the power to make the certifications required under section
1715w(d)(4)(A) -- and we do not read section 1.05 to give the governor
such authority -- the governor could not meet the the requirements of
section 1715w(d)(4)(A) unless the governor himself happened to be the
state agency designated under either section 300m or section 291(d)(a)
of Title 42 of the United States Code.

     Correspondence you have submitted with your request leads us to
include a caveat in reference to your question. You have submitted a
letter from the Department of Housing and Urban Development in which
the department informs a Texas mortgage company that because the
Health Facilities Commission has been abolished, there is no state
agency in Texas that can satisfy the certification requirements of
section 1715w(d)(4)(A). Initially, that letter led us to assume that
the Health Facilities Commission was the designated state agency under
both section 291d and section 300m of Title 42 of the United States
Code. Our correspondence with the Department of Housing and Urban
Development revealed, however, that the department's assumption that
the Health Facilities Commission was the only agency that could
satisfy the requirements of section 1715w(d)(4)(A) was based on
information it had obtained in the past from persons seeking federal
mortgage insurance for Texas facilities. The department apparently
had not independently determined what state agfncy was designated
under either of the applicable federal statutes.     We have not been
informed whether the Health Facilities Commission or any other state
agency was ever designated under either applicable federal statute.

     As indicated, the answer to your specific question is that the
certifications required under section 1715w(d)(4)(A) of Title 12 of
the United States Code must be made by an agency approved by the
appropriate federal agency. A state statute such as article 4418h,
section 1.05, V.T.C.S., cannot by itself confer authority to make
those certifications.



     1. If the Department of Human Services and the governor of Texas
agreed that the Texas Department of Health, rather than the Health
Facilities Commission, would be the designated state agency under
section 300m of Title 42 of the United States Code that agreement
could have been terminated when the Health Facilities Commission was
abolished if the Department no longer met the requirements of section
3oOm-1. -See former 42 U.S.C. 9300s~




                                    p. 3516
Honorable Carl A. Parker - Page 6    (JM-754)




                              SUMMARY

            Even if the governor of Texas had authority
         under state law to make the certifications
         required under section 1715&d)(4)(A) of Title 12
         of the United States Code, he could not satisfy
         the requirements of the federal statute unless he
         was also authorized under federal law to make
         those certifications.

                                         Very Itruly yours4 4



                                     -JIM       MATTOX
                                        Attorney General of Texas

MARY KELLER
Executive Assistant Attorney General

JUDGE ZOLLIE STRAKLEY
Special Assistant Attorney General

RICK GILPIN
Chairman, Opinion Committee

Prepared by Sarah Woelk
Assistant Attorney General




                               P. 1517
