                          March 23, 1987




Mr.   Rosa Newby                      Opinion No. J-M-652
Executive Director
Texas Commission on Alcohol           Re: Whether the Texas Commission
   and Drug Abuse                     on Alcohol and Drug Abuse may
1705 Guadalupe                        conduct on-site inspections of
Austin, Texas   78701                 alcohol treatment facilities and
                                      related questions

Dear Mr. Newby:

     You ask a series of questions regarding the authority of the
Texas Commission ou Alcohol and Drug Abuse [hereinafter the Commis-
sion] to conduct on-site inspections of alcohol treatment facilities.
We will auswer each of your questions in turm.~

     Article 4437h. V.T.C.S.. imposes upon those state agencies,
specifically the Texas Department of Health, the Texas Department of
Eman Resources, the Texas Department of Mental Realth and Mental
Retardation, and the Texas Commission ou Alcohol and Drug Abuse, that
perform surveys, inspections, and investigations of "health care
facilities" as defined by the Texas Eealth Planning and Development
Act, article 4418h. V.T.C.S.. the duty to "not duplicate their
procedures or subject such health care facilities to duplicitous [sic]
rules and regulations." V.T.C.S. art. 4437h, Il. Section 3 of the
act provides the following:     '

               Sec. 3. State agencies shall make or cause to
            be made only such inspections necessary to carry
            out the various obligations imposed on each agency
            by applicable state and federal law and regula-
            timls. AnyAn
            or a division or unit thereof that substantially




            ternally and with those -required by other state
            agencies so as to insure that the requirements of
            this section are met. (Emphasis added).



                                 p. 2962
Mr. Ross Newby - Page 2    (JIG652)




V.T.C.S. art. 443711,93.

     Article 5561~~. V.T.C.S., confers on the commission the specific
authority to regulate alcohol treatment facilities and provides at
section 4 that

         [tlhe commission shall issue a license to a person
         who has: (1) complied with the license applica-
         tion requirements in Section 3 of this Act; and
         (2) received approval of the facility after an
         on-site inspection. (Emphasis added).

See also V.T.C.S. art. 5561c-2, 11.14(a)(9). Section l(10) of article
5561cc, V.T.C.S.. specifies that

            'Alcohol treatment facility' means a public or
         private hospital, clinic, detoxification facility,
         primary care facility. intermediate care facility,
         long-term care    or outpatient care facility,
         community mental health center,   recovery center,.
         halfway house, ambulatory care facility, or any
         other facility that purports to provide alcohol or
         combined alcohol and drug treatment services and
         rehabilitation services as one of its programs.
         Tha term does sot include an educational program
         for intoxicated drivers or the office of a private
         licensed health cars practitioner.

Section 6 specifically authorizes the commission to conduct on-site
inspections and sets forth the following:

            Sec. 6. (a) The commission or its authorized
         representative may enter upon the premises of a
         facility et reasonable times to make an inspection
         the commission considers necessary. The inspec-
         tion is subject to the limitations imposed under
         Chapter 387, Acts of the 65th Legislature, Regular
         Session, 1977 (Article 4437h. Vernon's Texas Civil
         Statutes).

            (b) If the applicant or licensee is a health
         care facility as defined by Chapter 387, Acts of
         the 65th Legislature, Regular Session, 1977,
         (Article 4437h. Vernon's Texas Civil Statutes),
         on-site inspections by the commission must comply
         with the provisions of that Act.      In cases in
         which an applicant or licensee is not covered by
         that Act, the commission may enter     into inter-
         agency agreements to avoid duplication of efforts
         and to conserve state resources in relation to its



                              p.   2963
Mr. Ross Nevby - Page 3     (JM-652)




          on-site inspections under     this Act.   (Emphasis
          added).

V.T.C.S. art. 5561~~. 96.

     You first ask the following question:

             Does article 4437h. section 3, V.T.C.S., pro-
          hibit the Texas Commission on Alcohol and Drug
          Abuse from conducting on-site inspections of
          alcohol treatment facilities (as defined in
          article 5561~~. V.T.C.S.) for compliance with
          progr-tic     licensure standards which do not
          duplicate any standards required by another state
          agency?

We answer your first question in the negative. The very terms of
section 3 of article 4437h provide that one state agency must accept
the on-site inspection of another state agency only if the inspection
requirements of the inspecting agency comply substantially with those
of the first:

          Any on-site inspection by a state agency or a
          division or unit thereof that substantially
          complies vith the inspection requirements of any
          other state agency or any other division or unit
          of the inspecting agency charged with making
          similar inspections shall be accepted as an
          equivalent inspection in lieu of an on-site
          inspection by said agency or by a division or unit
          of the inspecting agency.

The issue as to whether the inspection requirements of one agency
"substantially comply" with that of another is an issue of fact that
would be inappropriate for resolution in the opinion process; but it
is clear that the commission is precluded from conducting on-site
inspections by section 3 of article 4437h only in such an instance.

    You next ask:

             Does article 4437h, section 4, V.T.C.S., pro-
          hibit the Texas Commission on Alcohol and Drug
          Abuse from conducting any and all on-site in-
          spections of JCAR [Joint Commission on Accredita-
          tion of Eospitals] or American Osteopathic
          Association -- accredited (or accreditations by
          other national accreditation bodies) hospitals
          which are certified under Title XVIII of the
          Social Security Act. as amended, even if the
          hospital programs include an alcohol or drug
          treatment and rehabilitation program and the



                                   p. 2964
Mr. Ross Newby - Page 4   (JM-652)




         accrediting body does not apply alcohol/drug abuse
         content -   specific program standards? Do the
         provisions of section 4 prohibit the cosm~ission
         from conducting on-site programmatic inspections
         and separate licensure by the commission of JCAH
         - accredited hospitals which are not certified
         under Title XVIII of the Social Securzy Act?

     Section 4 of article 4437h, V.T.C.S.. provides the following:

              Sec. 4. (a) All hospitals licensed by the
         Texas Department of Eealth which have been cer-
         tified under Title XVIII of the Social Security
         Act,   as added July 30, 1965 (Public Law 89-97), by
         the Texas Department of Mental Health and Mental
         Retardation, or by the Texas Commission on Alcohol
         and Drug Abuse which have obtained accreditation
         from the Joint Commission on Accreditation of
         Eospitals, the American Osteopathic Association,
         or another national accreditation body for the
         offered services, shall not be subject to addi-
         tional licensing inspections under the Texas
         Hospital Licensing Law (Article 4437f. Vernon's
         Texas Civil Statutes) or by the licensing agency
                                                       agency
         so long as such certification or accreditation is
         maintained. Such hospitals shall only be required
         to annua
              annually remit any applicable fees and submit a
         copy of the most recent survey results or inspec-
         tion   results report from the accreditation body in
         order to be issued a license by the appropriate
         licensing agency.

             (b) The Texas Department of Human Resources,
          the Texas Department of Health, the Texas Depart-
          ment of Mental Health and Mental Retardation. and
          the Texas Commission on Alcohol and Drug Abuse
          shall execute a memorandum of understanding that
          establishes procedures to eliminate or reduce
          duplication   of   functions  in   certifying   or
          licensing hospitals, nursing homes, or other
          facilities under their jurisdiction for payments
          under the requirements of the Medical Assistance
          Program (Chapter 32, Human Resources Code) and
          federal laws and regulations relating to Titles
          XVIII and XIX of the Social Security Act.     Each
          agency by rule shall adopt the memorandum of
          understanding. The procedures established under
          this section shell provide for use by the affected
          agencies of    information collected by      those
          agencies in making inspections for certification
          purposes and in investigating complaints regarding



                               p. 2965
Mr. Ross Newby - Page 5   (JM-652)




          matters that would affect the certification of a
          nursing home or other facilities under their
          jurisdiction.

             Cc) 7363 Texas Department of Eealth shall
          coordinate all licensing or certification pro-
          cedures conducted by the state health-related
          organizations covered by this section.

             (d) This section does not affect the authority
          of the Texas Department of Health to implement and
          enforce the provisions of the Texas Eospital
          Licensing Law (Article 4437f, Vernon's Texas Civil
          Statutes) relating to the transfer of hospital
          patients or the means by which the department
          implements and enforces those provisions. (Foot-
          notes omitted). (Emphasis added).

       It is important to note et the outset that section 4 applies only
to hospitals. As we noted earlier. article 5561cc,'V.T.C.S.. reposes
in the commission the responsibility to license "alcohol treatment
facilities" as defined in section 1. subsection (10) of the act. The
definition comprises more than "hospitals," and to the extent that it
does, it falls without the reach of section 4 of article 4437h. In
effect, section 4 serves as an exception to other relevant inspection
and licensing requirements. The section provides that, as long as the
specified certification or accreditation is maintained, a hospital
shall not be subject to additional licensing inspections under either
the Texas Hospital Licensing Law (article 4437h. V.T.C.S.) or by the
relevant   state licensing agency in three situations: (1) if the
hospital is licensed by the Texas Department of Health and has been
certified under Title XVIII of the Social Security Act, as amended (42
U.S.C. 9S1395 et seq.: (2) if the hospital is licensed by the Texas
Department of Mental Health and Mental Retardation; or (3) if the
hospital is licensed by the Texas Commission on Alcohol and Drug
Abuse and has obtained accreditation from the Joint Commission
on Accreditation of Hospitals [hereinafter JCAE], the American
Osteopathic Association, or another national accreditation body for
the offered services.

     You ask whether section 4 of article 4437h. V.T.C.S., acts to
prohibit the commission from conducting on-site inspections of
hospitals~accredited by national organizations in the manner specified
in the third situation described above even if the hospital offers a
drug or alcohol treatment program and th=crediting     agency does not
impose accrediting standards relevant to such programs. By the very
terms of section 4, the answer is clearly "yes." You also ask whether
the commission is prohibited from inspecting nationally accredited
hospitals that are not certified under Title XVIII of the Social
Security Act. And again. by the very terms of section 4 the answer is
clearly uye6.u We construe the phrase of section 4 that refers to



                                  p. 2966
Mr, Ross Newby - Page 6   (JR-652)




national accreditation (&,       "which have obtained . . . for the
offered services") to affect only those hospitals licensed by the
Texas Commission  on Alcohol and Drug Abuse, not to affect hospitals
licensed by either the Texas Department of Health or the Texas Depart-
ment of Mental Health and Mental Retardation.

     You next ask:

          By what criteria must the Texas Commission on
          Alcohol and Drug Abuse conduct inspections which
          are mandated by article 5561~. sections 6 and 13.
          and by article 5561c-2, sections 1.13 and 1.14 (6)
          and (9). V.T.C.S.. pursuant to section 4 of
          article 4437h?

     Section 7 of article 5561~~. V.T.C.S., confers broad rule-making
authority to the commission and provides the following:

             Sec. 7. The commission shall adopt rules and
          standards for the following:

             (1) the organizational structure of an alcohol
          treatment   facility,   including the    governing
          authority of the facility, board authority,
          organization, fiscal and policy responsibilities,
          supervisory lines of authority, and staffing;

             (2) the program conducted by a facility,
          including services to be provided, admission
          criteria, client rights, and standards for
          medication, nutrition, and emergency situations;

             (3) the clinical and fiscal records kept 'by a
          facility:

             (4) the general physical plant requirements
          for a facility, including environmental considera-
          tions, fire protection, safety, and other condi-
          tions to ensure the health and comfort of the
          clients; and

             (5) standards relating to other aspects of
          alcohol or alcohol and drug abuse treatment as
          necessary to protect the alcoholic or alcohol and
          drug dependent person.

             (b) The commission may not adopt rules re-
          stricting competitive bidding or advertising by a
          facility regulated by the commission except to
          prohibit false, misleading, or deceptive practices
          by the facility. The commission may not include


                               p. 2967
Mr. Ross Newby - Page 7   (JM-652)




          in its rules to prohibit false, misleading, or
          deceptive practices by a facility regulated by the
          commission a rule that:

             (1) restricts the facility's use of any medium
             for advertising;

             (2)  restricts in an advertisement the perscnal
             appearance of 8 person representing the
             facility or the use of that person's voice;

             (3) relates to the size or duration of         an
             advertisement by the facility; or

             (4) restricts the       facility's   advertisement
             under a trade name.

The legislature has delegated to the commission the implied authority
to formulate criteria to conduct on-site inspections prior to granting
licenses, criteria that may not exceed the authority conferred by
section 7 of article 5561~~. V.T.C.S. Board of Insurance Commis-
sioners v. Guardian Life Insurance Co., 180 S.W.2d 906 (Tex. 1944);
Blount v. Metropolitan Life Insurance Co., 677 S.W.2d 565 (Tex. App. -
Austin 1984). rev'd on other grounds sub nom.. Employees Retirement
System of Texas v. Blount, 709 S.W.2d 646 (Tex. 1986). You have
included with your request a copy of rules promulgated by the com-
mission pursuant to section 7 that govern licensing procedures and the
denial, non-renewal or revocation of a license. You do not ask about,
nor accordingly do we address, any specific rule or portion of a rule.
We note only that any rule promulgated by the commission must comport
with section 7.

     Finally, you ask:

            Does article 4437h. section 4(c), give the
         Texas Department of Bealth authority to coordinate
         licensing or certification procedures or Memoranda
         of 'Agreements between the Texas Commission on
         Alcohol and Drug Abuse and the Texas Department of
         Buman Services with respect to Coauuission-licensed
         programs which provide alcohol and drug treatment
         and rehabilitatioa services (as defined in article
         5561~~. V.T.C.S.) to juveniles?

     The answer is clearly "no," at least with regard to facilities
that are not hospitals which fall under section 4. Subsection (c) of
section 4 of article 4437h. V.T.C.S.. provides that

         [t]he Texas Department of Health shall coordi-
         nate all licensing or certification procedures



                             p. 2968
Mr. Ross Newby - Page 8   (a-652)




          conducted by the state health-related organiza-
          tions covered by this section. (Emphasis added).

This section, as noted above, serves as an exception to the other
relevant inspection and licensing requirements set forth in articles
4437h. 5561~~. and 5561c-2, V.T.C.S. The coordinating authority of
the Texas Department of Health extends only to those situations in
which a section 4 "hospital" is involved. In all remaining instances,
the last sentence of section 3 of article 4437h, V.T.C.S., controls:

         A state agency shall coordinate its health care
         facility inspections both internally and with
         those required by other state agencies so as to
         insure that the requirements of this section are
         met.

It is clear that, with the exception of section 4 "hospitals," each
agency affected by section 3 of article 4437h has both equal authority
and equal responsibility to coordinate its health care facility
inspections with other affected agencies; no agency's authority to
coordinate inspections in this matter is preeminent over any other.

                             SUMMARY

               Section 3 of article 4437h, V.T.C.S., does
         not prohibit the Texas Commission on Alcohol and
         Drug Abuse from conducting on-site inspections of
         alcohol-treatment facilities for compliance with
         licensure requirements except in an instance in
         which   another licensing agency has       already
         conducted such an inspection that substantially
         complies with that conducted by the cosauission.
         The issue es to whether the inspection require-
         ments of one agency substantially comply with
         those of the commission is an issue of fact that
         would be inapposite for resolution in the opinion
         process. Section 4 of article 4437h. V.T.C.S.,
         acts to prohibit the c=ission      from conducting
         on-site inspections of hospitals accredited by
         national organizations in the manner specified in
         section 4, regardless of whether such hospitals
         are certified under Title XVIII of the Social
         Security Act, even if the section 4 "hospital"
         offers a drug or alcohol treatment program and the
         accrediting agency does not impose accrediting
         standards relevant to such programs. The legis-
         lature has conferred authority to the Texas
         Commission on Alcohol and Drug Abuse to promulgate
         criteria by means of which the commission will
         conduct on-site licensure inspections; any such




                             p. 2969
Mr. Ross Revby - Page 9 (JM-652)




          criteria promulgated by the commission must
          comport with the powers conferred by section 7
          of article 5561cc, V.T.C.S.    Subsection (c) of
          section 4 of article 4437h. V.T.C.S., confers
          authority to the Texas Department of Elealth to
          coordinate   all   licensing  and   certification
          procedures conducted by state health-related
          organizations only with regard to hospitals
          governed by section 4 of article 4437h.    In all
          remaining instances, each agency affected by
          section 3 of article 4437h. V.T.C.S., has both
          equal authority and equal responsibility to
          coordinate its health care facility inspections
          with   other  affected agencies: no      agency's
          authority to coordinate inspections is preeminent
          over any other.

                                        VeryI truly yoursAl



                                        JIM     MATTOX
                                        Attorney General of Texas

JACK HIGRTOWER
First Assistant Attorney General

MARY XELLER
Executive Assistant Attorney General

RICX GILPIN
Chairman, Opinion Committee

Prepared by Jim Moellinger
Assistant Attorney General




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