                      The Attorney                  General of Texas
                                         August      4,    1980

MARK WHITE
Attorney General   Honorable William R. Keener                    Opinion No.   ML+216
                   Chairman
                   Texas Health Facilities Commission             Licensing of home health agencies
                   Austin, Texas 78’731

                   Dear Mr. Rowland:

                          You heve asked two questions regarding article 4447u, V.T.C.S., which
                   requires all home health agencig to be licensed. Your agency evaluates the
                   need for new health care facilities as mandated by the Texas Health
                   Planning and Development Act, V.T.C.S., article 4418h. Persons subject to
                   the act must obtain a certificate of need cr exemption certificate before
                   constructing, changing or expand@ health care facilities.        V.T.C.S., art.
                   441811,533.01. The commission also has authority to issue a declaratory ruling
                   on whether a particluar project requires a certificate        of need cr an
                   exemption certificate.  lc& S3.03.

                           Article 4447~1, V.T.C.S., provides for two kinds of home health egency
                   license.     Those eenciee   which have been or are in the process of being
                   certified by the Department of Health, Education and Welfare for medicare
                   reimbursement may receive a Class A license, while non-certified agencies
                   may receive a Class B license. The Department of Health may issue licenses
                   to persons fulfiilirg the requirements set out in section 7, of article 4447u,
                   V.T.C.S., which reads in pertinent part:

                                   (b) In addition to the above requirements:     (1) for
                              a Class A license, if the applicant is at the time of
                              filing an application a certified home health agency,
                              it shall include a copy of its letter of approval from
                              the Department of Health, Education, and Welfare
                              showing its compliance with federal conditions of
                              participation.     If the applicant is not at the time of
                              filing its application a certified home health agency,
                              it must attach a copy of its certificate         of need,
                              exemption certificate, or declaratory ruling. It must
                              also have been surveyed and be in the process of
                              receivhg     its certificate    from the Department      of
                              Health, Education, and Welfare.

                                    (2) For a Class B license, the applicant must show
                               proof of the services provided and geographical
                               territory in which such services have been provided as




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Honorable William R. Keener - Page Two         (~~-216)




           of the effective date of this Act and it must have requested a
           survey for the purposes of confirming the services provided and
           territory covered. If the applicant is not providing services as
           of the effective date of this Act, it must attach a copy of its
           certificate of need, exemption certificate, or declatory ruling.

In view of the quoted language,    you ask whether it is the responsibility of the Texas
Department    of Health or the     Texas Health Facilities Commission to make the
determinations as to what home     health agency services and in what counties services
were rendered prior to September    1,1979.

        The Health Facilities Commission issues the certificate       of need, exemption
certificate, or declaratory ruling which all uncertified applicants for a Class A license
and some applicants for a Class B license must &omit to the Department of Health as
part of the license application.       A certificate  of need is required where a health
facility wishes to skstantially    expand a service currently offered or provide a new
service. V.T.C.S. art. 4418h, S3.01(a)(l). Thus, in order to decide whether to issue a
certificate  of need or an exemption certificate      end in order to make a declaratory
ruling as to whether either certificate is needed, the Commission must determine what
services a home health agency has offered and proposes to offer. The Commission
must therefore make the &terminations         you inquired about for home health agencies
which apply to it for a certificate of need, exemption certificate or declaratory ruling.
These applicants should include all uncertified home health agencies which intend to
apply to the Department of Health for Class A license.

      There sre two groups of applicants for Class B licenses. Home health agencies
which have not provided services as of the effective date of article 4447u, V.T.C.S.,
and which intend to apply for a Class B license must also petition the Health Facilities
Commission for a certificate    of need, exemption certificate    or declaratory ruling.
However, since this class of applicants provided no services prior to the effective date
of this statute, the Commission need not make any detailed fact findings as to the
scope of services provided.

        Section 7(b)(2) of article 4447u, V.T.C.S., establishes another group of applicants
for a Class B license - home health agencies which have provided services as of the
effective date of the statute.        Home health agencies of this description are not
required to get a certificate or ruling from the Health Facilities Commission in order
to apply to the Department of Health for a Class B license. Thus, in their case, the
Department      makes the determinations      as to services provided and geographical
territory covered.

       You next ask whether it is the Commission’s responsibility to determine whether
the provision of particular services prior to September 1, 1979, qualifies the applicant
for licensure as a Class A home health sgency or a Class B home health agency.
Article 4447u, V.T.C.S., requires the Department of Health to “set minimum standards
for home health services licensed under this Act.” Sec. 4(b). Home health agencies
apply to the Department for a Class A or Class B license. V.T.C.S. art. 4447u, $7(a).




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The Department must issue a Class A or Class B home health service license to each
applicant who fulfills the requirements set out in section 9(a) of article 4447u, V.T.C.S.
Article 4447u, V.T.C.S., clearly vests in the Department          of Health authority to
determine whether a particular applicant is entitled to a Class A or Class B license.
The Commission need not make this determination.

                                     SUMMARY

                Uncertified home health agencies which wish to apply to the
           Department of Health for a Class A license and home health
           agencies which have not provided services prior to the effective
           date of article 4447u, V.T.C.S., and which wish to apply for a
           Class B license must first petition the Texas Health Facilities
           Commission for a certificate of need, exemption certificate, or
           declaratory ruling. In acting upon these requests, the Comm-
           ission must make certain determinations     as to the scope of
           services previously rendered by the agency. The Department of
           Health will make those determinations for home health agencies
           which have rendered services prior to the effective date of
           article 4447u, V.T.C.S., and which apply to it for a Class B
           license. The Department is responsible for determining whether
           a particular applicant is qualified for a Class A license or a
           Class B license.




                                              Attorney    General of Texas

JOHN W. FAINTER, JR.
First Assistant Attorney General

Prepared by Susan Garrison
Assistant Attorney General

APPROVED:
OPINION COMMITTEE

C. Robert Heath, Chairman
Carla Cox
Susan Garrison
Rick Gilpin
Bruce Youngblood




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