March 23, 1987

Mr. Rosa Newby ExecutiveDirector Texas Commissionon Alcohol andDrugAbuse 1705Guadalupe Austin,Texas 78701 OpinionNo. J-M-652

Re: Whether theTexas 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 inspectionsof 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 proceduresor subject suchhealth care facilitiesto duplicitous [sic] rules and regulations." V.T.C.S. art. 4437h, Il. Section 3 of the actprovides the following: '

Sec. 3. State agencies shallmake or cause to be made only such inspectionsnecessary to carry out thevarious obligations imposedon each agency by applicable state and federal law and regulatimls. AnyAn or a division or unit thereof that substantially

ternally and with those -requiredby other state agencies so as to insure that the requirements of this sectionaremet. (Emphasisadded).

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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

[tlhecommissionshall issuea 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. (Emphasisadded).

See alsoV.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 privatehospital, clinic,detoxification facility, primary care facility. intermediatecare facility, long-term **care** or outpatient care facility, community mental health center, recovery center,. halfway house, ambulatory care facility, or any other facility thatpurports toprovide 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 intoxicateddrivers or the office of a private licensedhealth carspractitioner.

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

Sec. 6. (a) The commission or its authorized representative may enter upon the premises of a facilityet reasonable times **to** make an inspection the commission considers necessary. The inspection is subject to the limitations imposed under Chapter 387,Acts of the 65thLegislature,Regular Session, 1977 (Article**4437h.** Vernon'sTexas 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 inspectionsby the commissionmust 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

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

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

You firstask the followingquestion:

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 requiredby 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 inspectionof another state agency only if the inspection requirementsof the inspectingagency comply substantiallywith 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 inspectionby said agency orby a divisionor unit of the inspectingagency.
The issue as to whether the inspection requirements of one agency "substantiallycomply"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 inspectionsby section 3 of article 4437honly 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 [JointCommission 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

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accreditingbody does not apply alcohol/drugabuse 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. All hospitals licensed by the

(a) hospitals licensed Department cerTexas Department of Eealth which have been Security tified under Title XVIII of the Social Security Act, as addedJuly 30, 1965 (PublicLaw 89-97),by (Public 89-97), the Texas Department of Mental Health and Mental

Department Retardation, Commission Alcohol Retardation, orby theTexas Commission on Alcohol and Drug Abuse which have obtained accreditation obtained accreditation from the Joint Commission on Accreditation of Commission Accreditation Eospitals, the American Osteopathic Association,
or another national accreditation body for the another national accreditation offered services, shall not be subject to addisubject tional licensing inspections under the Texas Hospital Licensing Law (Article 4437f. Vernon's Hospital Licensing (Article Vernon's Texas Civil Statutes) or by the licensing agency

Statutes) licensing agency certification or accreditation is so long as such certification accreditation maintained. Suchhospitals shall onlybe required hospitals required to annua lly remit any applicable fees and submit a copy of themost recent survey results or inspection results report from the accreditationbody in order to be issued a license by the appropriate licensingagency.
(b) The Texas Department of Human Resources, the Texas Department of Health, the Texas Department of Mental Health andMental 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 shellprovide foruse by the affected agencies of information collected by those agencies in making inspections for certification purposes and in investigatingcomplaints regarding

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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 organizationscoveredby this section.
(d) This sectiondoesnot affect the authority of theTexasDepartmentof Health to implementand enforce the provisions of the Texas Eospital LicensingLaw (Article4437f,Vernon'sTexas Civil Statutes) relating to the transfer of hospital patients or the means by which the department implementsand enforces those provisions. (Footnotes omitted). (Emphasisadded).

It is importanttonote et the outset that section 4 appliesonly 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 licensingrequirements. The sectionprovides that, as long as the specified certification or accreditation is maintained, a hospital shall not be subject to additional licensing inspectionsunder either the Texas Hospital Licensing Law (article4437h. 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 certifiedunder TitleXVIII of the Social SecurityAct, 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
onAccreditation 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~

accreditedby national organizationsin themanner specified in the third situationdescribed above even if the hospital offers a drug **or** alcohol treatmentprogram and th=crediting agency does not impose accrediting standards relevant to such programs. By the very termsof section4, the answer is clearly "yes." You alsoask whether the commission is prohibited from inspecting nationally accredited hospitals that are not certified under Title XVIII of the Social SecurityAct. And again.by thevery termsof section4 the answer is clearly uye6.u We construe the phrase of section 4 that refers to

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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 licensedby either theTexas Department of Health or theTexas Department ofMental Health andMental Retardation.

You next ask:
By what criteria must the Texas Commission on Alcohol and Drug Abuse conduct inspections which
aremandated by article 5561~. sections 6 and 13. andby 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 commissionandprovides the following:

Sec. 7. The commission shall adopt rules and standards for the following:
(1) the organizationalstructureof an alcohol treatment facility, including the governing authority of the facility, board authority, organization, fiscal and policy responsibilities, supervisory linesof 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 'bya facility:
(4) the general physical plant requirements for a facility, includingenvironmentalconsiderations, 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 dependentperson. (b) The commission may not adopt rules restricting competitive bidding or advertisingby a facility regulated by the commission except to prohibit false,misleading, or deceptivepractices by the facility. The commission may not include

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in its rules to prohibit false, misleading, **or** deceptivepracticesby a facilityregulatedby the commissiona rule that:
(1) restricts the facility'suse of anymedium for advertising;
(2) restricts in an advertisementtheperscnal appearance of 8 person representing the facilityor theuse of thatperson'svoice;
(3) relates to the size or duration **of** an advertisementby the facility;or
(4) restricts the facility's advertisement under a trade name.
The legislaturehas delegated to the commission the implied authority to formulatecriteria to conduct on-site inspectionsprior to granting licenses, criteria that may not exceed the authority conferred by section 7 of article 5561~~. V.T.C.S. Board of Insurance Commissionersv. Guardian Life Insurance Co., 180 S.W.2d 906 (Tex. 1944); Blountv. MetropolitanLife InsuranceCo., 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 commissionpursuant to section 7 thatgovern licensingproceduresand the denial,non-renewalor revocationof a license. You donot ask about,
nor accordinglydowe address,**any** specificrule or portionof a rule. We note only that any rule promulgatedby the commissionmust comport with section 7. Finally,you ask:

Does article 4437h. section 4(c), give the Texas DepartmentofBealth authority to coordinate licensingor certificationproceduresor Memoranda of 'Agreements between the Texas Commission on Alcohol andDrugAbuse and theTexasDepartmentof Buman Serviceswith respect to Coauuission-licensed programswhich provide alcohol and drug treatment and rehabilitatioaservices (asdefined in article 5561~~.V.T.C.S.) to juveniles?

The answer is clearly "no," at least with regard to facilities that are not hospitalswhich fall under section 4. Subsection (c)of section4 of article 4437h.V.T.C.S..provides that

[t]he Texas Department of Health shall coordinate all licensing or certification procedures

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conducted by the state health-related organizations coveredby this section. (Emphasisadded).
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 sentenceof 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 affectedby section 3 of article 4437hhas 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 thismatter 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 inspectionsof 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 themanner 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 treatmentprogram and the accrediting agency does not impose accrediting standards relevant to such programs. The legislature has conferred authority to the Texas Commissionon Alcohol andDrug Abuse topromulgate criteria by means of which the commission will conduct on-site licensure inspections; any such

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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 Elealthto 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 Al trulyyours

JIM MATTOX AttorneyGeneral of Texas

JACKHIGRTOWER FirstAssistantAttorneyGeneral

MARY XELLER ExecutiveAssistantAttorneyGeneral

RICX GILPIN Chairman,OpinionCommittee
Preparedby JimMoellinger AssistantAttorneyGeneral

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