The Attorney General of Texas
December 11, 1979
MARK WHITE
Attorney General
Honorable John J. Kavanagh, M.D. Opinion No. Mw- 9 6
Commissioner
Texas Department of Mental Health Re: Whether facilities of the
and Mental Retardation Department of Mental Health and
Box 12666, Capitol Station Mental Retardation are authorized
Austin, Texas 767R to pay application fees to the
Health Facilities Commission for
projects donated to the
Department.
Dear Dr. Kavanagh:
You have requested our opinion regarding whether facilities of the
Department of Mental Health and Mental Retardation are authorized to pay
application fees to the Health Facilities Commission under article 4416h,
V.T.C.S.
The purpose of article 4416h, the Health Planning and Development
Act of 1975, is to insure that
appropriate health planning activities be undertaken
and implemented and that health-care services and
facilities be provided in a manner that is cost
effective and that is compatible with the health-care
needs of the various areas and populations ~of the
state.
V.T.C.S. art. 4416h, S1.02. To achieve this purpose, every “person” must
obtain a certificate of need or an exemption certificate from the Health
Facilities Commission before commencing any project to:
(1) 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;
p. 297
Honorable John J. Kavanagh, M.D. - Page Two (tIw-26)
(4) convert a structure into a health-csre facility; or
(5) organize an HMO which requires a new or modified facility.
V.T.C.S. art. 4416h, S 3.01(a). An applicant is eligible for an exemption certificate under
certain circumstances, as, for example, when “in the case of modification of an existing
facility the total cost of the proposed modification will not exceed $100,000.” V.T.C.S.
art. 441611,S 3.02(aX3). Otherwise, for any project within the terms of section 3.01, the
applicant must seek a certificate of need accompanied by the requisite application fee,
which ranges from $25.00 to $3,500.00, depending upon the type and size of the project.
Sections 3.04, 3.05.
You state that certain capital improvement projects at the Department of Mental
Health and Mental Retardation are undertaken by the volunteer councils of the various
facilities of the department. No appropriated funds are used in these projects, but they
are donated to the department upon completion.
Section 3.04(b) of article 4416h states that “[elach application for a certificate of
need must be accompanied by the required application fee,” and section 3.01(a) directs
that “each person” obtain a certificate of need or an exemption certificate for any
proposed project listed therein. Section 1.03(14) defines “person” as
an individual, sole proprietorship, charity, trust, estate, institution,
group, association, firm, joint venture, partnership, joint stock
compsny, cooperative, corporation, the state or a political sub-
division or instrumentality of the state, the federal government or
a political subdivision or instrumentality of the federal
government, any receiver, trustee, assignee, or other similar
representative or any other legal entity.
It is clear that “person” includes a volunteer council of a facility of the Department of
Mental Health and Mental Retardation. It is therefore our opinion that a volunteer
council is required to pay the requisite fee to the Health Facilities Commission in order to
undertake a project contemplated by article 4416h. If, however, the Department can gain
a benefit by contracting with the volunteer council to pay the application fee, then the
Department is authorized to pay the fee if it has available funds. Thus, for example, if
the volunteer council agreed to donate a swimming pool or recreation building to the
Department on the condition that the Department pay the application fee, the
Department could enter into such an agreement.
SUMMARY
A volunteer council of a facility of the Texas Department of
Mental Health and Mental Retardation is required to pay the
appropriate fee to the Health Facilities Commission in order to
undertake a project contemplated by article 4416h, V.T.C.S. The
P. 298
Honorable John J. Kavanagh, M.D. - Page Three (MW-96)
Department of Mental Health and Mental Retardation may agree to
pay the application fee on behalf of the council, if payment of the
fee results in a benefit to the Department.
xd
MARK WHITE
Attorney General of Texas
JOHN W. FAINTER, JR.
First Assistant Attorney General
TED L. HARTLEY
Executive Assistant Attorney General
Prepared by Rick Gilpin
Ass&ant Attorney General
APPROVED:
OPINION COMMITTEE
C. Robert Heath, Chairman
David B. Brooks
Susan Garrison
Rick Gilpin
William G Reid
Bruce Youngblood
p. 299