Mr. Orson Berry Director, Arkansas Health Services Agency 4815 West Markham Street Little Rock, AR 72205-3867
Dear Mr. Berry:
This is in response to your request for an opinion regarding A.C.A. § 20-8-101 et seq. (Supp. 1989), and specifically regarding the Arkansas Health Services Commission's ("Commission") authority to grant exemptions from its permit of approval rules.
You state that Butterfield Trail Village has requested to be exempt from the Commission's nursing home standards and from its moratorium on residential care facility applications. You note that the Commission's standards show no need for additional nursing home beds in Washington County, and that there is a moratorium on the review of residential care facility applications. You have asked whether an exemption can be granted.
It is my opinion that the Commission lacks authority to grant an exemption from a permit of approval requirement. Section 20-8-107 (Supp. 1989) states under subsection (a) that:
[u]nless otherwise provided herein, all health facilities, as defined by this subchapter, seeking to add new beds or home health services or expand existing bed capacity or home health services shall apply for a permit approving additional beds or services or expanded bed capacity or services pursuant to procedures and criteria as promulgated by the Health Services Commission.
It is also apparent under § 20-8-103 (Supp. 1989) that applications must be reviewed and permits of approval issued in accordance with the policy and criteria adopted by the Commission. See A.C.A. § 20-8-103(d) (Supp. 1989). The only clear authority for granting exemptions is set forth under §20-8-103(c) wherein it states that the Commission may "define certain underserved locales or areas or categories of services within underserved locales or areas to be exempt for specified periods of time from the permit of approval requirement."
We find no authority for exempting a "health facility," the definition of which clearly encompasses Butterfield Trail Village, from the criteria and policy developed by the Commission for the review of applications and the issuance of permits of approval.
The foregoing opinion, which I hereby approve, was prepared by Deputy Attorney General Elisabeth A. Walker.
Sincerely,
WINSTON BRYANT Attorney General
WB:cyh