Mr. Marlin W. Johnston                Opinion     No. JR- 860
Commissioner
Texas Department    of                Re: Whether Rider 47 of the
    Human Resources                   current    appropriation     for
P. 0. Box 2960                        the   Texas    Department     of
Austin, Texas     78769               Human   Services      conflicts
                                      with section 22.014 of       the
                                      Human      Resources        Code
                                      (RQ-1242)

Dear   Wr.   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




                                 p. 4171
Mr. Marlin   W. Johnston    - Page     2   UM-860)




       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.

           (a Theor       ndt.m must Drovide that   any
       rules or reculat~ons    DrODOSed bv the deDart-
       Rent.  the   DeDarbIent     of  Health. or   the


       of Drovidina     the r curred services         or    which
       ad      increase    thz number       of Dersonnel         bn
       hosDita1   or lona-term       care facilities         must
       be accomDanied     bv a fiscal note DreDared              by
       the   aaencv      vr vosina       said      rules       and
       mtted        to   thz    deDartme n.t       The     fiscal
       note should      set forth     the exDected         imDact
       which the vrovosed        rule or reoulation           will
       have on the cost       of vrovidina      the    recuired
       @z-vice and      the mivated           imDact of        the
       gl;oDosed rule or recn&&ion          on the number of
       personnel     In hosvital       or    bna-term         care
       facilities.       The    memorandum      must     DrOVide
       that in    order     for   a rule     to    be    finahhy
       adoDted the devartment        must Drovide        Written
       verification     that    funds    are    available        to
       adeouatelv    Hurse          hOSDlta1    or    lono-te?ZIn
       care service      Drovlders      for   anv     increased
       costs resulting      from the rule or reculation.
       The deDa3kment       is not    recuired to        DrOVide
       written verification        if the commissioner           of
                       . .
             h   certlfle s      that    a    new     rule
       recfulation is uraent as well as necessarv                E
                                                          . .
       protect the health        or safetv of       reclDlents
       of hosvital     or lona-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




                             p. 4172
Wr.   Marlin   W. Johnston    - Page    3        W-860)




          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 522.014(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 522.014(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.




                                p. 4173
Mr. Marlin    W. Johnston    - Page   4    (JM-860)




General Appropriations      Act    for    1988-89    biennium,     Acts
1987, 70th Leg.,      2d C.S.,    ch. 78,    art. II,     51, at    844
(11-43).    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 propos,ed      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.         &9   Jes en      ssociates.      Inc.
V.    llock     531 S.W.2d      593, 600     (Tzx. ?975)*       Moore    v.
Sheanard    i92   S.W.2d 559       (Tex. 1946).        To b;    valid,
rider ma;    do no    more than      detail, limit,        or   otherwisz
restrict    the   use    of     appropriated        funds.     Moore     VA
Shenvard,   m;       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-a-#   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 co&s     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



       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
                                           (Footnote Continued)




                                 p. 4174
      Mr. Marlin   W. Johnston        - Page     5   (JM-860)




      verify that appropriated    funds are available    to   reimburse
      providers   for   increased   costs  related    to    new    rules
      governing  hospital  and 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 govern-
              ing hospital   and long-term   services.




                                                     JIM      MATTOX
                                                     Attorney  General   of Texas

,r-   MARY KELLER
      First Assistant      Attorney     General

      LDUMCCREARY
      Executive   Assistant     Attorney        General

      JUDGE ZOLLIE STRANLEY
      Special Assistant  Attorney          General

      RICK GILPIN
      Chairman,  Opinion      Committee

      Prepared by Sarah Woelk
      Assistant Attorney General




      (Footnote Continued)
      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
r     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.
,-



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