                                  ATTORNEY GENERAL OF TEXAS
                                                 GREG         ABBOTT




                                                  September      17,2003



The Honorable       Jose R. Rodriguez                          Opinion No. GA-01 02
El Paso County       Attorney
El Paso County       Hospital District Legal Unit              Re: Authority of Board of Managers of El Paso
48 15 Alameda,      8th Floor, Suite B                         County Hospital District to delegate its authority
El Paso, Texas      79905                                      to credential its medical staff and allied health
                                                               professionals   (RQ-004%GA)


Dear Mr. Rodriguez:

         You ask whether the Board of Managers of the El Paso County Hospital District (the
“Board”), as the governing authority of R.E. Thomason Hospital, may delegate its authority to
credential the hospital’s medical staff and allied health professionals to its professional affairs
committee.’

          The El Paso County Hospital District operates R.E. Thomason Hospital. Request Letter,
supra note 1, at 1. The hospital’s medical staff bylaws prescribe the procedure for credentialing
applicants seeking initial appointment or reappointment as hospital medical staff or allied health
professionals.   Id. at l-2. The hospital’s medical staff includes licensed physicians, dentists, and
podiatrists, and its allied health professionals include advance practice nurses, physician’s assistants,
and perfusionists     or autotransmsionists.*      Under the bylaws, a practitioner seeking initial
appointment and privileges, or reappointment and renewal of privileges, initiates the credentialing
process by submitting an application. The application must be approved by the applicant’s clinical
department, the credentials committee, the medical executive committee, and finally the Board.
Manual, supra note 2, at 5-7. If the medical executive committee or the Board gives the applicant
a tentatively unfavorable recommendation, the applicant may ask for a hearing. The applicant may
seek a review of the hearing by the professional affairs committee.3 Manual, supra note 2, at 5-7.


         ‘Letter fromHonorable Jose R. Rodriguez, County Attorney, El Paso County, Texas, to Honorable Greg Abbott,
Texas Attorney General at 1 (Apr. 17,2003) (on file with Opinion Committee) [hereinafter Request Letter].

         2See R.E. Thomason General Hospital Medical Staff Credentialing Manual at 4, 11 (on file with Opinion
Committee) [hereinafter Manual]; telephone call with Connie Crawford, Assistant County Attorney, El Paso County,
Texas (Aug. 2 1,2003).

          3The professional affairs committee is composed of two members of the Board, the chief executive officer, the
chief of staff, the chief of staff-elect, the immediate past chief of staff, a representative of house staff to be designated
                                                                                                                (continued...)
The Honorable       Jose R. Rodriguez        - Page 2         (GA-0102)




In all cases the Board makes the final decision approving or disapproving                       an application.     Id. at 7;
Request Letter, supra note 1, at 2.

        You state that the process can take as long as four months. Request Letter, supra note 1,
at 2. Because of the lengthy process, an applicant seeking reappointment may not receive the
Board’s final approval before the applicant’s current membership or privileges expire. Id. To avoid
such a lapse before final approval, the professional affairs committee has asked the Board to amend
the Board’s bylaws and the medical staff bylaws to authorize the committee to grant temporary
reappointments and clinical privileges for a period not to exceed thirty days. Id.

         You contend that the Board’s authority to delegate its credentialing responsibilities may be
found by harmonizing the Board’s statutory powers in chapter 28 1 of the Texas Health and Safety
Code, hospital licensing requirements in chapter 241 of the Code and related administrative
rules, and certain hospital accreditation standards. Id. at 2-3. We first review the statutes, rules and
standards pertinent to the Board’s authority concerning its medical staff, and subsequently consider
its authority concerning its allied health professionals.

         The El Paso County Hospital District was organized under the predecessor to chapter 28 1
of the Texas Health and Safety Code. Id. at 3. The Code vests the Board with the power to manage,
control, and administer a district hospital or hospital system. TEX. HEALTH& SAFETY CODE ANN.
6j28 1.047 (Vernon 2001). The Board has general authority to “adopt rules governing the operation
of the hospital or hospital system.” Id. 8 28 1.048. The Board may appoint doctors and hire nurses,
technicians, and other employees as it “considers advisable for the district’s efficient operation.” Id.
9 281.028(a). A ccordingly, chapter 281 states the Board’s governing powers in broad terms.

         Chapter 241 of the Health and Safety Code contains the general requirements to license a
hospital in Texas. With certain exceptions, a hospital may not operate without a state license. Id.
§ 241.02 1; see also id. Q8 241.003(5), (7)’ (15) (defining “general hospital,” “hospital,” and “special
hospital”), 241.004 (exempting state and federal hospitals, nursing homes, and private mental
hospitals and facilities).     Section 241.101 acknowledges the general authority of a hospital’s
governing body to promulgate rules and requirements concerning medical staff membership and
clinical privileges. Id. 9 24 1.10 1(a)-(b) (V emon Supp. 2003). “Medical staff,” however, is defined
as certain practitioners “who by action of the governing body of a hospital are privileged to work in
and use the facilities of a hospital.” Id. 0 241.003(8). Subsection (k) provides the specific procedure
for processing applications for such membership or privileges by physicians, podiatrists, or dentists:

                   A hospital’s credentials committee shall act expeditiously        and
                   without unnecessary delay when a licensed physician, podiatrist, or
                   dentist submits a completed application for medical staffmembership
                   or privileges. The hospital’s credentials committee shall take action



          ‘(. ..continued)
by the chief of staff and three individuals selected by the chief executive officer.   Additionally,   the chair of the Board
is an ex-officio member. Request Letter, supru note 1, at 2.
The Honorable Jo& R. Rodriguez      - Page 3       (GA-0102)




               on the completed application not later than the 90th day after the date
               on which the application is received. The governing body of the
               hospital shall take final action on the application for medical staff
               membership or privileges not later than the 60th day after the date on
               which the recommendation of the credentials committee is received.
               The hospital must notify the applicant in writing of the hospital’s
               final action, including a reason for denial or restriction of privileges,
               not later than the 20th day after the date on which final action is


Id. 9 241.101(k) (emphasis added). Thus, while section 241.101(k) recognizes that a credentials
committee may review an application for staff membership or privileges, the statute expressly
reserves final action for the hospital’s governing body.

         Chapter 241 further directs the Texas Board of Health (“TBH”) to promulgate hospital
licensing rules. Id. 9 241.026(a). Like section 241.101 (k) of the Health and Safety Code, TBH rules
call for the governing body to take final action on applications for staff membership or privileges.
See 25 TEX. ADMIN. CODE $9 133.2(24) (2003) (defining “governing body,’ as the “governing
authority of a hospital which is responsible for a hospital’s organization, management, control, and
operation, including appointment of the medical staff ‘), 133.2(34) (defining “medical staff’ as
certain practitioners    granted privileges “by action of the governing body of a hospital”),
133.41 (f)(4)(K)(ii) (stating that the “governing body of the hospital shall take final action on the
application for medical staff membership or privileges”), 133.41 (k)( 1) (stating that a medical staff
includes physicians, podiatrists, and dentists “appointed by the governing body”), 133.41 (k)(l)(B)
(imposing duty on medical staff to examine credentials of candidates for membership and “make
recommendations     to the governing body”).

        Chapter 241 directs TBH to consider, when it promulgates hospital licensing rules, the
standards promulgated by a professional organization, the Joint Commission on Accreditation of
Healthcare Organizations (“JCAH0”), and “attempt to achieve consistency with those . . .
standards.” TEX. HEALTH & SAFETY CODE ANN. $ 241.026(b) (Vernon Supp. 2003). JCAHO
standards permit a hospital’s governing body to “elect to delegate the authority to render initial
appointment, reappointment,   and renewal or modification of clinical privileges decisions to a
committee of the governing body.” Joint Commission on Accreditation ofHealthcare Organizations,
Hospital Accreditation Standards, MS.5.1.1 (2003) (“JCAHO Standards”).

         You suggest that to achieve consistency with JCAHO standards, chapters 241 and 28 1 of the
Health and Safety Code and related administrative rules should be interpreted to allow the Board to
delegate its credentialing approval to the professional affairs committee.        However, the plain
language of the hospital licensing statutes will not support such a construction. Section 24 1.10 1(k)
unequivocally provides that “[tlhe governing body of the hospital shall take final action on the
application for medical staff membership or privileges.” TEX. HEALTH & SAFETY CODE ANN.
8 241.101(k) (V emon Supp. 2003). Under section 241.003(8), a hospital’s medical staff only
includes those who have received privileges “by action of the governing body of a hospital.” Id.
The Honorable Jose R. Rodriguez        - Page 4       (GA-0102)




4 241.003(8) (defining “medical staff 3. Under these statutes, the Board is the only entity authorized
to appoint staff members or grant privileges. Moreover, the licensing statutes do not distinguish
between applications for initial appointment or reappointment, or between short term and full term
appointments.    The statutes cannot be construed to include the exceptions the professional affairs
committee has suggested. Pub. Util. Comm’n v. Cofer, 754 S.W.2d 121,124 (Tex. 1988) (“A court
may not write special exceptions into a statute so as to make it inapplicable under certain
circumstances not mentioned in the statute.“).

         Nor do the licensing statutes and related administrative requirements conflict with the
directive to TBH to consider JCAHO standards when it promulgates rules. See TEX. HEALTH &
SAFETY CODE ANN. 5 241.026(b) (Vernon Supp. 2003). JCAHO standards permit a governing body
to delegate the authority to render clinical privileges decisions to a committee of the governing body.
JCAHO Standards, MS.5.1.5 (2003). JCAHO standards also permit a chief executive officer or his
or her designee to grant temporary clinical privileges, id. MS.5.14.4, although that authority is not
intended to be exercised routinely because of administrative delay in processing applications.4
However, JCAHO standards were formulated “‘as ultimate goals and not as universal minimal
standards. “’ Denton Reg’l Med. Ctr. v. LaCroix, 947 S.W.2d 941’95 1 (Tex. App.-Ft. Worth 1997,
writ dism’d by agr.) (quoting 2 GRIFFITH, TEXAS HOSPITAL LAW 8 3.032, at 65 (2d ed. 1995)).
Section 241.026(b) of the code directs that TBH consider JCAHO standards when it promulgates
rules and regulations, and “attempt to achieve consistency” with those standards. TEX. HEALTH &
SAFETY CODE ANN. 8 241.026(b) (V emon Supp. 2003).                 The statute does not mandate strict
consistency with JCAHO standards, nor prohibit TBH from promulgating more stringent rules
and regulations.    In this case, the administrative rules and regulations are in accord with the
statutory requirements in chapter 241, that the governing body take the final action on medical
staff applications.   Consequently, these statutory and administrative requirements control over
inconsistent JCAHO standards. We conclude that the Board may not delegate its duty to take final
action on an application to reappoint medical staff and renew privileges to the professional affairs
committee.

         Although chapter 241 of the Health and Safety Code requires the Board to make the final
decision with respect to hospital medical staff such as doctors, podiatrists, and dentists, the code
does not provide similar restrictions with respect to other health professionals. Section 241.1 OS(a)
authorizes the governing body to establish policies concerning the advanced practice nurses and
physicians assistants, but does not specify a particular process.        The Code does not address
credentialing of other professionals such as the hospital’s perfusionists or autotransfusionists.

        A hospital district may only exercise those powers expressly delegated to it by the legislature,
or those existing by clear and unquestioned implication. Mascarenhas v. Meridian Hosp. Auth., 560
F.2d 683 (5th Cir. 1977) (citing Tri-City Fresh Water Supply Dist. No. 2 v. Mann, 142 S.W.2d 945,
946 (Tex. 1940) with respect to the authority of special districts); Jackson County Hosp. Dist. v.
Jackson County Citizensfor ContinuedHosp. Care, 669 S.W.2d 147,154 (Tex. App.-Corpus Christi



         4JCAH0, Clarifications, Use of Temporary Privileges, available at http://www.jcaho.org/accredited+
organizations/behavioral+health+care/standards/clarifcations/use+of+tempora~+privileges.htm
The Honorable   Jose R. Rodriguez   - Page 5      (GA-0102)




1984, no writ); Tex. Att’y Gen. Op. No. JC-0268 (2000). As noted previously, however, chapter 28 1
grants the Board broad powers of hospital governance, including the authority to promulgate rules
and employ health professionals.     TEX. HEALTH & SAFETYCODE ANN. $0 281.028,281.047-.048
(Vernon 2001). These express grants of authority contemplate that the Board may delegate some
details of management to its agents and employees. See Bathe Halsey Stuart Shields, Inc. v. Univ.
of Houston, 638 S.W.2d 920, 927 (Tex. App.-Houston [ 1st Dist.] 1982, writ ref d n.r.e.) (holding
that broad grant of authority to university board of regents authorized it to delegate investment
responsibilities to employee). Moreover, unlike the Board’s express duty to take the final action for
extending membership and privileges to hospital medical staff in section 241.101 (k), section
241.105(a) requires only that the Board establish credentialing procedures.         Consequently, we
conclude that the Board has the authority to amend the hospital’s bylaws to allow temporary
credentialing of its allied health professionals by its professional affairs committee.
The Honorable Jose R. Rodriguez      - Page 6       (GA-0102)




                                        SUMMARY

                          A hospital district board, as the governing body of a
                 hospital, may not delegate its duty to take final action on
                 applications   for renewal of medical staff membership              or
                 privileges for doctors, podiatrists, and dentists. A hospital district
                 board may delegate the credentialing           of its allied health
                 professionals   such as advanced practice nurses, physicians
                 assistants, and permsionists or autotransfusionists.




BARRY R. MCBEE
First Assistant Attorney General

DON R. WILLETT
Deputy Attorney General for Legal Counsel

NANCY S. FULLER
Chair, Opinion Committee

William A. Hill
Assistant Attorney General, Opinion Committee
