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The Attorney General of Texas
September 4, 1980
MARK WHITE
Attorney General
Dr. Lauro F. Cavazcs, President Opinion No. MW- 2 3 1
Texas Tech University
Texas Tech University Health Re: Whether a state medical
Sciences Center school is required to obtain a
P. 0. Box 4349 certificate of need or an exemption
Lubbock, Texas 79409 certificate from the Texas Health
Facilities Commission
Dear President Cavazca:
You have requested our opinion regarding whether a state medical
school is required to obtain a certificate of need or an exemption certificate
from the Texas Health Facilities Commission. Section 3.01(a) of article
4418h, V.T.C.S., provides:
Each person must obtain from the commission a
certificate of need or an exemption certificate in
accordance with this Act for a.propcsed project to:
(1) expand or substantially expand a service
currently offered or provide a service not
currently offered by the facility;
(2) construct a new facility or change the bed
capacity of an existing facility;
(3) modify an existing facility;
(4) convert a structure into a health-care facility;
or
(5) organize an HMO.
“Person” is &fined by the statute as:
an individual, sole proprietorship, charity, trust,
estate, institution, group, association, firm, joint
venture, partnership, joint stock company, coopera-
tive, corporation, the state or a political subdivision
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Dr. Lauro F. Cavazos - Page Two (MW-231)
or instrumentality of the state, the federal government or a
political subdivision or instrumentality of the federal govern-
ment, any receiver, trustee, assignee, or other similar
representative or any other legal entity.
Section 1.03(14). As to the scope of “facility” for purposes of section 3.01(a), the
statute states:
(9) ‘Health-care facility,’ referred to as ‘facility,’ includes,
regardless of ownership, but is not limited to, a public or
private hospital, institution, extended care facility, skilled
nursing facility, intermediate care facility, home health agency,
outpatient care facility, outpatient surgical and single
procedure facility, ambulatory healthcare facility, health
center, family planning clinic, ki&ey disease treatment
facility, radiation therapy facility, alcoholism and drug treat-
ment facility, health maintenance organization, and other
specialized facilities where inpatient or outpatient health-care
services for observation, diagnosis, active treatment, or over-
night care for patients with obstetrical, medical, mental or
psychiatric, surgical, tubercular, alcoholic, chronic, or rehabili-
tative conditions are provided requiring daily direct supervision
by a physician or a practitioner of the healing arts, but does not
include the office of those physicians or practitioners singly or
in groups in the conduct of their profession.
Section 1.03(g).
On its face, article 4418h clearly embraces a state medical school within its
definition of “person,” as an “instrumentality of the state.” In the definition of “health
care facility,” no exception is provided for a state medical school, although the offices
of physicians and practitioners are specifically excluded. Although you contend that
the application of article 4418h to a state medical school would subject such an
institution to regulation by the Health Facilities Commission, in addition to regulation
by its board of regents and by the Coordinating Board of the Texas College and
University System, we do not believe that such a result is either unreasonable or
without precedent. In Attorney General Opinion H-464 (1974), for example, this office
held that the University of Texas might hold a mixed beverage permit from the Texas
Alcoholic Beverage Commission.
Inclusion of a state medical school within the ambit of article 4418h, however,
does not mean that all, or even most, of its activities are subject to regulation by the
Health Facilities Commission. A certificate of need or an exemption certificate is
required only when an entity proposes a project within the meaning of s&divisions l-5
of s§ion (a) of section 3.01(d). Furthermore, a state medical school is not a
“facility” per se. Only where such an institution proposes the construction, expansion
or modification of a “facility” within the terms of section 1.03(9) does the requirement
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Dr. Lauro F. Cavazos - Page Three (NW-2311
arise. The “facility” which is the subject of the proposal must, in accordance with the
statute, provide:
inpatient or outpatient health-care services for observation,
diagnosis, active treatment, or overnight care for patients with
obstetrical, medical, mental or psychiatric, surgical, tubercular,
alcoholic, chronic, or rehabilitative conditions. . . requiring
daily direct supervision by a physician or a practitioner of the
healing arts.
Within these limits, we believe that any entity, including a state medical school,
must obtain a certificate of need or an exemption certificate from the Health Facilities
Commission for any proposed project covered by s&divisions (l)-(5) of subsection (a) of
section 3.01. Of course, whether any particular project is included within the scope of the
Commission’s regulatory power is a fact question to be determined in the first instance by
the Commission itself.
SUMMARY
A state medical school is required to obtain a certificate of
need or an exemption certificate from the Health Facilities
Commission before commencing any project included within
subdivisions (l)-(5) of subsection (a), section 3.01, article 4418h,
V.T.C.S. Whether any particular project is included within
those provisions is a fact question to be determined in the first
instance by the Health Facilities Commission.
A
km.e?wh.e?~
MARK WHITE
Attorney General of Texas
JOHN W. FAINTER, JR.
First Assistant Attorney General
Prepared by Rick Gilpin
Assistant Attorney General
APPROVED:
OPINION COMMITTEE
C. Robert Heath, Chairmen
Jon Bible
Jerry Cain
Susan Garrison
Rick Gilpin
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