                                 ATTORNEY GENERAL OF TEXAS
                                               GREG        ABBOTT




                                                   April 28,2003



Ms. Karen F. Hale, Commissioner                                Opinion No. GA-0066
Texas Department of Mental Health
   and Mental Retardation                                      Re: Whether the Health and Safety Code,
909 West 45th Street                                           section 572.0025(f)(l)     requirement    that a
P.O. Box 12668                                                 physician conduct an “in-person examination”
Austin, Texas 787 1 l-2668                                     of a prospective patient of an inpatient mental
                                                               health facility means that only a physician may
                                                               conduct the examination     (RQ-0003-GA)


Dear Commissioner        Hale:

         You ask whether section 572.0025(f)(l) of the Health and Safety Code requires that only a
physician may conduct an examination required to admit a person to an inpatient mental health
facility or whether a physician may delegate the examination to a non-physician pursuant to section
157.001 of the Occupations Code.’

         Chapter 572 of the Health and Safety Code governs voluntary admissions to inpatient mental
health facilities. See TEX. HEALTH & SAFETY CODE ANN. $8 572.001-.005 (Vernon Supp. 2003).2
Section 572.0025 requires the Board of Mental Health and Mental Retardation (the “Board”) to
adopt rules for voluntary admissions, including rules for intake and assessment procedures. See id.
8 572.0025(a).3 “Assessment” is the process a facility uses to gather inforrnation from a prospective
patient, “including a medical history and the problem for which the patient is seeking treatment, to
determine whether a prospective patient should be examined by a physician to determine if
admission is clinically justified.” Id. 8 572.0025(h)(2). An assessment may be conducted only by
a professional who meets the qualifications prescribed by Board rules. See id. 8 572.0025(c)-(d) (the
Board’s rules governing assessment must prescribe: “( 1) the types ofprofessionals who may conduct


         ‘Letter from Ms. Karen F. Hale, Commissioner, Texas Department of Mental Health and Mental Retardation,
to Honorable John Comyn, Texas Attorney General at 2 (Nov. 25,2002) (on file with Opinion Committee) [hereinafter
Request Letter].

           2Seealso TEX. HEALTH & SAFETYCODE ANN. 8 57 1.003(9) (Vernon Supp. 2003) (defining           “inpatient   mental
health facility”).

           3See also id. $8 571.003( 1) (defining “board”), 572.0025(h)(3) (“‘Intake’ means the administrative process for
gathering information about a prospective patient and giving a prospective patient information about the facility and the
facility’s treatment and services.“).
Ms. Karen F. Hale - Page 2                     (GA-0066)




an assessment; (2) the minimum credentials each type of professional must have to conduct an
assessment; and (3) the type of assessment that professional may conduct”).

        You ask about the requirement   in section 572.0025(f) that a patient must be examined by a
physician before admission:

                     (f) A prospective voluntary patient       may not be formally
               accepted for treatment in a facility unless:

                            (1) the facility has a physician’s order admitting the
                     prospective    patient, which order may be issued orally,
                     electronically, or in writing, signed by the physician, provided
                     that, in the case of an oral order or an electronically transmitted
                     unsigned order, a signed original is presented to the mental
                     health facility within 24 hours of the initial order; the order
                     must be from:

                                 (A) an admitting physician who has conducted an
                           in-person physical andpsychiatric examination within 72
                           hours of the admission; or

                                 (B) an admitting physician who has consulted with
                           a physician who has conducted an in-person examination
                           within 72 hours of the admission.

Id. 8 572.0025@( 1) (emphasis added); see also id. 5 571.003( 18) (defining “physician”).

         You ask whether the requirement in section 572.0025@( 1) “that the physical and psychiatric
 examination be ‘in-person’ mean[s] that only a physician may conduct the examination and,
therefore, that the physician is prohibited from delegating the examination in accordance with”
 section 157.001 of the Occupations Code. Request Letter, supra note 1, at 2 (Question 1). Section
 157.001 of the Occupations Code, a provision of the Medical Practice Act, authorizes a physician
to “delegate to a qualified and properly trained person acting under the physician’s supervision any
medical act that a reasonable and prudent physician would find within the scope of sound medical
judgment to delegate.” TEX. OCC. CODEANN. 5 157.001 (a) (Vernon 2003). You suggest that section
 572.0025(f) could be construed to permit a physician to delegate an examination, provided that the
 delegate “conduct[s] the examination in the presence of the prospective patient.” Request Letter,
supra note 1, at 2.

        In construing a statute, we attempt to give effect to the legislature’s intent. See Mitchell
Energy Corp. v. Ashworth, 943 S.W.2d 436,438 (Tex. 1997). To do that, we construe the statute
according to its plain language. See RepublicBankDallas,     N.A. v. Interkal, Inc., 691 S.W.2d 605,
607-08 (Tex. 1985). We read words and phrases in context and construe them according to rules of
grammar and common usage. See TEX. GOV’T CODE ANN. 5 3 11 .Ol l(a) (Vernon 1998) (Code
Ms. Karen F. Hale - Page 3                              (GA-0066)




Construction Act). Words and phrases that have acquired a technical or particular meaning, whether
by legislative definition or otherwise, must be construed accordingly. Id. 8 3 11 .Ol l(b).

         Section 572.0025(f)(l) requires an order issued by an admitting physician who has (i)
conducted an “in-person” examination, or (ii) consulted with another physician who has conducted
an “in-person” examination.      See TEX. HEALTH & SAFETY CODE ANN. 5 572.0025(f)(l) (Vernon
Supp. 2003). The legislature has not defined the term “in-person” in chapter 572 or in any.other
statute, nor is there a Texas case defining the term in the context of medical examinations. The term
is commonly understood to mean “with or by one’s own action or bodily presence; personally;
oneself.” XI OXFORD ENGLISHDICTIONARY 598 (2d ed. 1989); see also TEX. GOV’T CODE .ANN.
5 311.011(a) (V emon 1998). Thus, according to the plain language of section 572.0025(f), the
requirement that a physician conduct an “in-person” examination of a prospective patient means that
the physician must personally conduct the examination. This meaning is consistent with section
572.0025(g), which provides that an assessment of a patient by a Board-approved professional, who
may or may not be a physician4 “does not satisfy a statutory or regulatory requirement for apersonal
evaluation of a patient or a prospective patient by a physician before admission.” TEX. HEALTH &
SAFETY CODE ANN. 8 572.0025(g) (Vernon Supp. 2003) (emphasis added).

         In answer to the second part of your first question, a physician may not delegate the duty to
conduct an in-person examination required by section 572.0025(f) to a non-physician. The statute’s
express requirement that the examination must be conducted by either the admitting physician or a
physician with whom an admitting physician consults indicates that only a physician may conduct
the examination. See id. 8 572.0025@( 1) (a facility may not admit a patient without an order from
either “(A) an admitting physician who has conducted an in-person physical and psychiatric
examination within 72 hours of the admission” or “(B) an admittingphysician         who has consulted
with a physician who has conducted an in-person examination within 72 hours of the admission”)
(emphasis added). Had the legislature intended to authorize an admitting physician to consult with
a non-physician examiner before issuing an admission order, it would have expressly granted such
authority. By contrast, the statute expressly provides that an assessment of a prospective patient may
be conducted by any “professional” who meets qualifications prescribed by Board rules. See id.
fj 572.0025(c)-(d); see also supra note 4. Importantly, section 157.001 of the Occupations Code
does not authorize a physician to delegate an act in violation of another law. See TEX. Oct. CODE
ANN. 8 15’%OOl(a)(I)(C) (V emon 2003); see also id. 5 157.007 (“An act delegated by a physician
under this chapter must comply with other applicable laws.“).

            You also ask whether an examination required by section 572.0025(f) may be conducted
“using      audiovisual telecommunication.”    Request Letter, supra note 1, at 2 (Question 2).


            4See TEX. HEALTH & SAFETY CODE ANN. 9 572.0025(c)-(d)          (Vernon Supp. 2003) (an assessment may be
conducted    only by a professional who meets the qualifications prescribed by Board rules); 25 TEX. ADMIN. CODE 5
401.583(15) (2002) (T ex. Dep’t of Mental Health and Mental Retardation, Standards of Care and Treatment in
Psychiatric Hospitals) (defining “qualified mental health professional” to include various health professionals, including
physicians);   id. 8 401.587(e)( 1) (“A n assessment for admission must be conducted by a qualified mental health
professional (QMHP). If the QMHP is not a physician, the non-physician QMHP conducts the assessment to determine
the need for physician evaluation for inpatient admission.“).
Ms. Karen F. Hale - Page 4                      (GA-0066)




Significantly, the legislature has used the term “in-person” in related contexts to contrast “in-person”
medical care with telemedicine, indicating that an “in-person” examination is one where both the
physician and the patient are physically present. See, e.g., TEX. GOV’T CODEANN. 8 53 1.0217(d)
(Vernon Supp. 2003) (The Health and Human Services Commission “shall require reimbursement
for a telemedicine medical service at the same rate as the Medicaid program reimburses for a
comparable in-person medical service. A request for reimbursement may not be denied solely
because an in-person medical service between a physician and a patient did not occur.“) (emphasis
added); TEX.HEALTH&SAFETY CODEANN. 9 106.307 (Vernon Supp. 2003) (“A health professional
who participates in a program under this subchapter may not use telecommunication technology,
including telemedicine, as the sole or primary method of providing services and may not use
telecommunication      technology as a substitute for providing health care services in person.“)
(emphasis added); see also TEX. GOV’T CODEANN. § 3 11.01 l(b) (Vernon 1998). The statute’s
requirement that the examination be “in-person” precludes an examination via “audiovisual
telecommunication.”
Ms. Karen F. Hale - Page 5                  (GA-0066)




                                      SUMMARY

                      A physician must personally conduct an examination of a
               patient required by section 572.0025(f)(l) of the Health and Safety
               Code and may not delegate this duty to a non-physician pursuant to
               section 157.001 of the Occupations Code. The statute’s requirement
               that the examination be “in-person” precludes an examination via
               “audiovisual telecommunication.”

                                            Very truly yours,




BARRY R. MCBEE
First Assistant Attorney General

DON R. WILLETT
Deputy Attorney General for Legal Counsel

NANCY S. FULLER
Chair, Opinion Committee

Mary R. Crouter
Assistant Attorney General, Opinion Committee
