March 23, 1987 

Mr. Rosa Newby 

Executive Director 

Texas Commission on Alcohol 

and Drug Abuse 

1705 Guadalupe 

Austin, Texas 78701 

Opinion No. J-M-652 

Re: Whether the Texas Commission 

on Alcohol and Drug Abuse may 

conduct on-site inspections of 

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 Commission] 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 regulatimls. 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 application 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 inspection 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 interagency 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., prohibit 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., prohibit the Texas Commission on Alcohol and Drug 

Abuse from conducting any and all on-site inspections of JCAR [Joint Commission on Accreditation 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 hospitals licensed licensed by the 

Texas Department Department of Eealth which have been certified under Title XVIII of the Social Security Security 

Act, as added July 30, 1965 (Public (Public Law 89-97), 89-97), by 

the Texas Department Department of Mental Health and Mental 

Retardation, Retardation, or by the Texas Commission Commission on Alcohol Alcohol 

and Drug Abuse which have obtained obtained accreditation accreditation 

from the Joint Commission Commission on Accreditation Accreditation of 

Eospitals, the American Osteopathic Association, 

or another another national national accreditation accreditation body for the 

offered services, shall not be subject subject to additional licensing inspections under the Texas 

Hospital Hospital Licensing Licensing Law (Article (Article 4437f. Vernon's Vernon's 

Texas Civil Statutes) Statutes) or by the licensing licensing agency agency 

so long as such certification certification or accreditation accreditation is 

maintained. Such hospitals hospitals shall only be required required 

to annually remit any applicable fees and submit a 

copy of the most recent survey results or inspection 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 Department 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 procedures 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. (Footnotes 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 Department 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 considerations, fire protection, safety, and other conditions 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 restricting 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 Commissioners 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 commission 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 coordinate all licensing or certification procedures 

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

conducted by the state health-related organizations 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 requirements 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 legislature 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. 

Very I Al truly yours 

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 

p. 2970