                                      The Attorney General of Texas
                               .-
                                                                   March 14,           1983
JIM MATTOX
Attorney General

                                    Robert Bernstein,   M.D., F.A.C.P.                                  Opinion   No. JM-12
Supreme Court BuildinQ              Commissioner
P. 0. Box 12546                     Texas Department of Health                                          Re:     Whether   community    mental
Austin. TX. 76711. 2346
                                    1100 West 49th Street                                               health/mental    retardation   centers
5121475-2501
Telex 9101674.1367                  Austin,  Texas    78756                                             are exempt from licensing       under
Tel+opier    512/475.0266                                                                               article   4442c,  V.T.C.S.

                                    Dear Dr.   Bernstein:
lM)7 Main St.. Suite 1400
Oaltas. TX. 75201.4709
214/742.6944                              You ask the              following           two questions:

                                                     1.  Are   community      mental    health   and mental
4624 Alberta Ave.. Suite 160                    retardation     centers    exempt from licensing        under
El Paso, TX. 79905.2793
                                                article    4442~. V.T.C.S.,      because    they are already
yAm33.3464                                      being operated     within    the jurisdiction-    of a state
                                                or federal    governmental     agency?
1L.d Dallas Ave.. Suite 202
Hotiston; TX. 77002.6986
                                                     2.    If the answer to the first    question   is                        yes,
7 131650-0666
                                                which     state   or federal   governmental     agency                         has
                                                jurisdiction     over the centers?
806 Broadway. Suite 312
Lubbock. TX. 79401.3479                     Your question     arises     from article   4442c,    which provides     for the
00617476236                         licensing      of convalescent         and nursing    homes by the Department          of
                                    Health     unless   those    facilities     are exempted      by section      2 of that
4309 N. Tenth. Suite B              article.      A 1981 amendment to article         4442;.   V.T,C.S.,   states   in part:
McAllen. TX. 76501.1665
5121662.4547                                         Sec.   2 (a)     ‘Institution’        means sn establish-
                                                ment which         furnishes        (in    single      or    multiple
                                                facilities)       food     and shelter         to   four     or more
200 Main Plaza. Suite 400
San Antonio. TX. 76205.2797                     persons     unrelated        to    the    proprietor,        and,     in
5121225.4191                                    addition,      provides        minor’ treatment           under     the
                                                direction     and supervision          of a physician        licensed
                                                by the Texas State Board of Medical                   Examiners,      or
An Equal Opportunity/
Affirmative Action Employer
                                                services     which meet         some need beyond           the basic
                                                provision     of food,      shelter,      and laundry.         Nothing
                                                in this Act shall apply to:

                                                        . . . .

                                                        (6)         a       facility        operated     within  the jurisdic-
                                                 tion         of        a    state     or     federal    governmental   agency,




                                                                                  p.   49
Dr.   Robert    Bernstein     - Page 2        (JM-12)




               including      but   not   limited   to   the . . . Texas
               Department        of     Mental    Health     and   Mental
               Retardation      . . . .   (Emphasis added).

Acts   1981, 67th Leg.,    2364,   ch. 604, I1 at 2364.    The exemption   in
subsection   2(a)(b) is a new provision.     YOU state  in your letter   that
the Department of Health has not licensed      community mental health    and
mental retardation   centers    in the past.

        The relevant       statutes     are the mental         health     statutes,      article
3347-201.       et seq.,      V.T.C.S.      The Department         of Mental        Health     and
Mental      Retardation      is   established      in article        3347-202.        Community
centers       for   mental      health     and mental        retardation        services       are
established       under the authority         of article      3347-203.      V.T.C.S..     which
provides     in section     3.01 that the centers         may be operated        by counties,
cities,      hospital     districts,       school    districts,        or   any combination
thereof.        This apparently      places    the control      of the community centers
with     the local      government.       However,     section      3.01A of the article
states     that these centers        are:

               Intended      to be vital     components    in a continuum of
               services        for    the   mentally    ill      and  mentally
               retarded       individuals     of   this   state.     (Emphasis
               added).

Section    3.13   requires   the Department      of Mental   Health    and Mental
Retardation     to provide    assistance,    advice,  and consultation      to the
community centers,      and authorizes    the department  to transfer    ownership
of its personal     property   to the centers.

        Article      3347-204.    V.T.C.S.,      gives the Department of Mental Health
and Mental          Retardation       the power to provide             grants-in-aid       to the
community centers           upon qualification          of the centers.         Section   4.01 of
article      3347-204.       V.T.C.S.,       authorizes      the department         to prescribe
rules     necessary        to   insure      adequate      provision     of    services     by the
community centers.             The board of trustees           for each center        must submit
to the department           a copy of a plan for an effective                services    program.
V.T.C.S.       art.     3347-204,      04.02.      A community center           is eligible      to
receive      grants-in-aid         if    it   qualifies      according     to the rules        and
regulations         of the department.           Id. 04.03.        Thus, the department        has
considerable         authority    to regulatehe           community centers        which receive
grants-in-aid         from it.

       The     Department       of   Mental      Health   and Mental   Retardation    has
submitted       a letter       describing       its   method of  regulating     community
centers:

               It is      the current  practice    that   each          community
               center     enter Into a performance     contract          with the




                                                 p.     50
Dr.   Robert     Bernstein   - Page 3         (JM-12)




               department   in order to receive       state    grant-in-aid
               funds.      Each     performance      contract       contains
               assurances   by the community center           that it will
        _-
               adhere to various      rules   of the commissioner         that
               affect   community centers     and allows    for access      by
               the department     to all     records    of the community
               center   for monitoring    purposes.

       Although       community    centers   are the creation        of a governmental
subdivision,       they are in the continuum of state services.                 In order to
receive      grants-in-aid,      the centers    enter   into performance          contracts
with.the      Department of Mental Health and Mental Retardation                 to provide
services      consistent     with the mental health     statutes,      article    3347-201,
et seq.,       V.T.C.S.       In our opinion.     community centers         are under the
jurisdiction          of    the   Department     of   Mental       Health      and    Mental
Retardation,       and therefore      exempt by section    2(a)(6)     of article     4442~.
V.T.C.S.,      from licensing      by the Department of Health.

        Our conclusion     is consistent     with   the prior     opinions     of this
office.        Attorney   General    Opinion    C-384   (1966)     determined     that
community mental health        and mental retardation     centers    are agencies    of
the     state,    and that    the Department      of Mental     Health     and’ Mental
Retardation      controls  the supervision    and operation    of the centers.

        Another    opinion   of this office      concluded     that the governor        could
transfer      from the Department        of Health      to the Department         of Mental
Health      and Mental Retardation        the responsibilities         for administering
and supervising        state plans for the construction           of menta.1 retardation
facilities.         Attorney   General      Opinion    No. C-391      (1966).       Attorney
General      Opinion    M-314 (1968))      in concluding       that  the Department         of
Mental Health and Mental Retardation                could not require       all community
mental health       and mental retardation        centers    to match grants-in-aid         on
a fifty-fifty         basis.   established      that    the department        could    impose
requirements       on community health       centers,     so long as the requirements
were not arbitrary.

        Our conclusion       is also   supported     by the legislative         history     of
section     2(a)(6)      of article.  4442~.    V.T.C.S.      The Senate. Committee on
Human Resources        took testimony    from a representative         of the Department
of Health.       Tape of Senate Committee on Human Resources               Meeting,     April
21, 1981, filed         in Senate Staff     Services    Offices.     The witness      stated
that     the Health        Department   was at present           not  licensing      certain
facilities       operated     by the Texas      Department       of Mental      Health     and
Mental Retardation.            The purpose    of the amendment was not to change
the existing       practice,    but merely to codify.it.

       It   is    our conclusion       that   community mental       health      and mental
retardation         centers    established       pursuant  to        article       3347-203,




                                              p.   31
                                                                                                               ,-


Dr.   Robert    Bernstein    - Psge     4     (JM-12)



                                                                                                           ?



V.T.C.S.,   are exempt from           licensing        by    the   Department   of        Health   under
article   4442, V.T.C.S.
        .-
                                            SUMMARY

                    Community centers    for mental health    and mental
               retardation,    as established    in article    3347-203.
               V.T.C.S.,    are exempt from licensing     under article
               4442c, V.T.C.S.,    because   the centers   are under the
               jurisdiction     of the Department     of Mental   Health
               and Mental Retardation.




                                                            JIM      MATTOX
                                                            Attorney  General        of    Texas

TOM GREEN
First Assistant        Attorney   General

DAVID R. RICHARDS
                                                                                                           ,-.
Executive Assistant         Attorney        General

Prepared       by Patricia   Hinojosa
Assistant       Attorney   General

APPROVED:                                                                                                        ‘4
OPINION COMMITTEE                                                                                                :

Susan L. Garrison,          Chairman
Jon Bible
Rick Gilpin
Patricia   Hinojosa
Jim Moellinger




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