Mr. Marlin W.Johnston Commissioner Texas Department of Human Resources P. 0. Box 2960 Austin, Texas 78769 Opinion No. JR- 860

Re: Whether Rider 47 of the current appropriation for the Texas Department of Human Services conflicts with section 22.014 of the Human Resources Code (RQ-1242)

Dear Wr. Johnston:

You askwhether Rider 47to 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 [ofHuman Services], the Texas Department of Health, and the Texas Department ofMental Health and Mental Retardation shall adopt a memorandum of understanding that: (1)clearly defines the responsibilities of each agency inproviding, 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 orregulations that would increase the costs-of providing the required services orwould increase the number ofpersonnel in hospital or long-term care facilities may be promulgated by either the department, the Department ofHealth, orthe Department of

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Mental Health and Mental Retardation unless the commissioner ofhealth certifies that the new rules or regulations are urgent as well asnecessary to protect the health or safety of recipients of hospital or long-term care services.
(a Theor ndt.mmust Drovide that any rules orreculat~ons DrODOSed bv the deDartRent. the **DeDarbIent** of Health. or the

ofDrovidina the rcurred services or which ad increase thz number ofDersonnel bn hosDita1 or lona-term care facilities must be accomDanied bv afiscal note DreDared by the aaencv vrvosina mtted to thz said rules and deDartme t

n. The fiscal note should set forth the exDected imDact which the vrovosed rule orreoulation will have on the cost ofvrovidina the recuired @z-vice and the mivated imDact of the gl;oDosed rule orrecn&&ion onthe number of personnel In hosvital or bna-term care facilities. The memorandum must DrOVide that in order for arule 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 isnot recuired to DrOVide written verification ifthe commissioner of

. . h certlfles that a new rule recfulation isuraent aswell 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 ofany rule increasing the cost ofproviding the required services, the department must establish reimbursement rates sufficient to cover the increased costs related to the rule. The department isnot 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 isurgent as well as necessary toprotect the health or safety of



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recipients of hospital or long-term care services.
(e) The memorandum must provide that Subsections (b)through (d)ofthis section do not apply ifthe rules are required by state or federal law or federal regulations. (f)These agencies inthe formulation of this memorandum of understanding shall consult with and solicit input from advocacy and consumer groups. (g).Notlater 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 inregard to the requirement in section 22.014 that the Department ofHuman Services verify that funds are available topay costs that would be incurred because ofnew rules or regulations affecting hospitals and long-term care facilities. Such verification is Hum. Res. Code 522.014(c). 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 isurgent aswell asnecessary toprotect the health or safety care services. ofrecipients of hospital or long-term Hum. Res. Code 522.014(c) and (e).
Rider 47to the appropriation for the Department of Human Services provides:

None of the funds appropriated in this Act may beused asasource 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 orDepartment ofHuman Services which increase the cost of providing such services, unless the rule or regulation is required by federal statute, rule or regulation.

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General Appropriations Act for 1988-89 biennium, Acts 1987, 70th Leg., 2dC.S., ch. 78, art. II, 51, at 844 (11-43). Rider 47prohibits the use ofappropriated 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:

IsDHS precluded byRider (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 isthe Department's determination that such funds are actually available?

Arider to anappropriations bill is invalid if it conflicts with general law. &9 Jes en ssociates. Inc. **V.** llock Sheanard i92531 S.W.2d 593, 600 (Tzx. ?975)* Moore v. S.W.2d 559 (Tex. 1946). rider ma; do no Tob; valid, more than detail, limit, or otherwisz restrict the use of appropriated funds. Moore VA Shenvard, m; Attorney General Opinion V-1254 (1951). Arider may, however, prohibit astate 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 tonew 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 

### ofhospital and long-term care does not mean that the legislature must appropriate funds topay the costs ofany orall such rules. Because the rider inquestion merely limits the use ofappropriated funds, we conclude that it isa valid rider.1 Therefore, the department may not

1. We note that noverification of available funds isnecessary when federal law requires the new rule or regulation orwhen the commissioner ofhealth certifies that the new rule or regulation is urgent as well as necessary toprotect the health 

### orsafety of recipients of (Footnote Continued)

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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 ofHuman Services does not conflict with section 22.014(c) ofthe Human Resources Code. Therefore, the department may notverify that appropriated funds are available to reimburse providers for increased costs related to new rules governinghospital and long-term services.

JIM MATTOX Attorney General ofTexas

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 istherefore inapplicable to rules orregulations required by federal law and to cases inwhich the commissioner ofhealth has certified that the new rule or regulation is urgent aswell asnecessary to protect the health or safety ofrecipients ofhospital or long-term care services.

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