Untitled Texas Attorney General Opinion

ATTORNEY GENERAL OF TEXAS

GREG ABBOTT

March 16,2006

Mr. Albert Hawkins Opinion No. GA-04 16

Executive Commissioner

Texas Health and Human Services Re: Whether section 533.035(e) of the Health and

Commission Safety Code, which provides that “a local mental

Post Office Box 13247 health and mental retardation authority may serve

Austin, Texas 78711 as a provider of services only as a provider of last

resort,” applies to both mental health services and

mental retardation services or only to mental

retardation services (RQ-0392-GA)

Dear Commissioner Hawkins:

The Health and Safety Code authorizes the Texas Health and Human Services Commission

and the relevant state agencies’ to “delegate to the local authorities . . . authority and responsibility

for the planning, policy development, coordination, . . . and oversight of mental health and mental

retardation services”inlocalservice areas. See TEX.HEALTH& SAFETYCODEANN. 5 533.035(a)

(Vernon Supp. 2005). Section 533.035(e) of the Health and Safety Code provides that “[i]n

assembling a network of service providers, a local mental health and mental retardation authority

may serve as a provider of services only as a provider of last resort” and only under certain

conditions. See id. 5 533.035(e). You ask whether this limitation applies to both mental health

services and mental retardation services or only to mental retardation services.2

As background to your request, you relate that the legislature extensively amended provisions

governing the delivery of mental health and mental retardation services in House Bill 2292. See Act

of June 2, 2003,7Sth Leg., R.S., ch. 198,2003 Tex. Gen. Laws 611. In particular, you note that

House Bill 2292 amended section 533.035 of the Health and Safety Code to add subsections (e) and

(g). See id. 5 2.74, at 676. As amended, section 533.035(e)-(g) now provides:

‘Prior to 2003, the Texas Department of Mental Health and Mental Retardation (TDMHMR) and its governing

body, the Board of Mental Health and Mental Retardation, administered both mental health services and mental

retardation services. In 2003, the legislature abolished TDMHMR and assigned mental health services to the Texas

Department of State Health Services and mental retardation services to the Texas Department of Aging and Disability

Services. The Texas Health and Human Services Commission supervises both agencies. See Act of June 2,2003,78th

Leg., R.S., ch. 198, 44 1.01-.03, 1.19(a)(2), 1,20(a)(3), 1.26, 2003 Tex. Gen. Laws 611, 61 I-14, 636-38, 641.

‘See Letter from Albert Hawkins, Executive Commissioner, Texas Health and Human Services Commission,

to Honorable Greg Abbott, Attorney General of Texas, at 1, 5 (on file with the Opinion Committee, also available at

http:/lwww.oag.state.tx.us) [hereinafter Request Letter].

Mr. Albert Hawkins - Page 2 (GA-0416)

(e) In assembling a network of service providers, a local mental

health and mental retardation authority may serve as a provider of

services only as a provider of last resort and only if the authority

demonstrates to the department that:

(1) the authority has made every reasonable attempt to solicit

the development of an available and appropriate provider base that is

sufficient to meet the needs of consumers in its service area; and

(2) there is not a willing provider of the relevant services in

the authority’s service area or in the county where the provision of the

services is needed.

(f) The department shall review the appropriateness of a local

mental health and mental retardation authority’s status as a service

provider at least biennially.

(g) The department, together with local mental health and mental

retardation authorities and other interested persons, shall develop and

implement a plan to privatize all services by intermediate facilities for

persons with mental retardation and all related waiver services

programs operated by an authority. The transfer of services to private

providers may not occur on or before August 3 1, 2006. The plan

must provide criteria that:

(1) promote the transition of services to private providers

in a manner that causes the least disruption practicable to the

consumers of those services;

(2) ensure the continuation of services at the same level

of service provided before the transfer;

(3) provide for consumer choice as appropriate and as

required by rule; and

(4) require local mental health and mental retardation

authorities to implement the privatization of services in a

fiscally responsible manner.

TEX.HEALTH & SAFETYCODE ANN. 5 533.035(e)-(g) (Vernon Supp. 2005).’

3Section 533.035 has not been amended since 2003. The Seventy-ninth Legislature adopted amendments to

section 533.035 in House Bill 2572, but that bill was subsequently vetoed by the Governor. See Tex. H.B. 2572, 79th

Leg., R.S. (2005); Veto Proclamation of Gov. Perry, Tex. H.B. 2572,79th Leg., R.S. (2005). See also infra note 16.

Mr. Albert Hawkins - Page 3 (GA-0416)

You explain that because section 533.035(g) addresses the delivery of mental retardation

services and not mental health serviceq4 there is “some disagreement regarding the scope of

subsection (e).“5 You ask us to resolve whether section 533.035(e) applies to both mental retardation

services and mental health services or only to mental retardation services.6

In construing section 533.035(e), we must give effect to the legislature’s intent. See TEX.

GOV’T CODE ANN. $8 3 11.021, .023 (Vernon 2005); Albertson s, Inc. v. Sinclair, 984 S.W.2d 958,

960 (Tex. 1999); Mitchell Energy Corp. v. Ashworth, 943 S.W.2d 436,438 (Tex. 1997). To do so,

we must construe the statute according to its plain language. See In re Canales, 52 S.W.3d 698,702

(Tex. 2001); RepublicBank Dallas, NA. v. Interkal, Inc., 691 S.W.2d 605,607-08 (Tex. 1985). We

must also construe section 533.035(e) in context, considering section 533.035 as a whole and in light

of other statutes that govern the delivery of mental health and mental retardation services. See TEX.

GOV’T CODE ANN. § 3 11 .Ol l(a) (Vernon 2005) (words and phrases to be read in context); Helena

Chem. Co. v. Wilkins, 47 S.W.3d 486,493 (Tex. 2001) (“[W]e must always consider the statute as

a whole rather than its isolated provisions. . . . We should not give one provision a meaning out of

harmony or inconsistent with other provisions, although it might be susceptible to such a

construction standing alone.“).

Section 533.035(a) provides for the designation of local mental health authorities, local

mental retardation authorities, and single entities to serve in both capacities:

The commissioner shall designate a local mental health

authority and a local mental retardation authority in one or more local

service areas. The board may delegate to the local authorities the

board’s authority and responsibility for the planning, policy

development, coordination, including coordination with criminal

justice entities, resource allocation, and resource development for and

oversight of mental health and mental retardation services in the most

appropriate and available setting to meet individual needs in that

service area. The commissioner may designate a single entity as the

local mental health authority and the local mental retardation

authority for a service area.

TEX. HEALTH & SAFETYCODE ANN. 3 533.035(a) (Vernon Supp. 2005).7 State and federal funds

4See Request Letter, supra note 2, at 3-5.

51d. at 5.

%‘ee id. at 3-5.

71n addition, section 53 1.002 defines the terms “local mental health authority” and “local mental retardation

authority”:

(10) “Local mental health authority” means an entity to which the board

delegates its authority and responsibility within a specified region for planning,

(continued...)

Mr. Albert Hawkins - Page 4 (GA-0416)

may be disbursed to a local mental health and mental retardation authority (or “local authority”) to

be spent in the local service area on community mental health and mental retardation services and

chemical dependency services for persons who are dually diagnosed as having both chemical

dependency and mental illness or mental retardation. See id. 6 533.035(b)(1)-(2).

Section 533.035(e) provides that “a local mental health and mental retardation authority may

serve as a provider of services only as a provider of last resort.” Id. 0 533.035(e). The Health and

Safety Code expressly provides distinct definitions for the terms “mental health services” and

“mental retardation services” for purposes of chapter 533.8 The term “services” in section

533.035(e) is not expressly limited to mental retardation services and thus, on its face, means mental

retardation services and mental health services.

Moreover, section 533.035(c) provides as follows:

(c) A local mental health and mental retardation authority, with

the department’s approval, shall use the funds received under

Subsection (b) to ensure mental health, mental retardation, and

chemical dependency services are provided in the local service area.

The local authority shall consider public input, ultimate cost-benefit,

and client care issues to ensure consumer choice and the best use of

public money in:

(1) assembling a network of service providers; and

policy development, coordination, including coordination with criminal justice

entities, and resource development and allocation and for supervising and ensuring

the provision of mental health services to persons with mental illness in the most

appropriate and available setting to meet individual needs in one or more local

service areas.

(11) “Local mental retardation authority” means an entity to which the board

delegates its authority and responsibility within a specified region for planning,

policy development, coordination, including coordination with criminal justice

entities, and resource development and allocation and for supervising and ensuring

the provision of mental retardation services to persons with mental retardation in

the most appropriate and available setting to meet individual needs in one or more

local service areas.

TEX.HEALTH & SAFETY CODE ANN. $53 1.002( lOH1 1) (Vernon 2003). See also supra note 1.

‘See id. 5 53 1.002( 12) (“‘Mental health services’ includes all services concerned with research, prevention, and

detection of mental disorders and disabilities, and all services necessary to treat, care for, control, supervise, and

rehabilitate persons who have a mental disorder or disability, including persons whose mental disorders or disabilities

result from alcoholism or drug addiction.“), (13) (“‘Mental retardation services’ includes all services concerned with

research, prevention, and detection of mental retardation, and all services related to the education, training, habilitation,

care, treatment, supervision, and control of persons with mental retardation, but does not include the education of

school-age persons that the public educational system is authorized to provide.“).

Mr. Albert Hawkins - Page 5 (GA-0416)

(2) making recommendations relating to the most appropriate

and available treatment alternatives for individuals in need of mental

health or mental retardation services.

Id. 0 533.035(c) (emphasis added). The term “services” in section 533.035(c) includes both mental

health services and mental retardation services and the term “network of service providers” in section

533.035(c)(l) includes providers ofboth types of services. See id Section 533.035(e) uses the same

terms and the terms have the same meaning as they have in section 533.035(c): “In assembling a

network of service providers, a local mental health and mental retardation authority may serve as a

provider of services only as a provider of last resort . . . .” Id. 9 533.035(e) (emphasis added).

With respect to the 2003 amendments, you are particularly concerned about section

533.035(g), which the legislature also added to section 533.035 in House Bill 2292 and which

imposes specific requirements for the privatization only of mental retardation services, not mental

health services. See id. 5 533.035(g); Request Letter, supra note 2, at 3-5. It has been suggested

that the legislature’s adoption of section 533.035(g) indicates that the legislature did not intend

section 533.035(e) to affect whether a local authority may provide mental health services directly.’

However, the fact that the legislature adopted specific requirements for privatizing mental retardation

services does not resolve whether the legislature intended section 533.035(e) to affect the provision

of mental health services by a local authority.

Your letter and the other briefs we have received” do not mention House Bill 2292’s

amendment to section 533.035(c), which we believe expressly reveals the legislature’s intent with

respect to section 533.035(e)‘s scope. Prior to the 2003 amendment, section 533.035(c) provided

as follows:

(c) A local mental health and mental retardation authority,

with the department’s approval, shall use the funds received under

Subsection (b) to ensure mental health, mental retardation, and

chemical dependency services are provided in the local service area.

The local authority shall consider public input, ultimate cost-benefit,

and client care issues to ensure consumer choice and the best use of

public money in:

(1) assembling a network of service providers;

‘See Request Letter, supra note 2, at 5; see also Brief from Brian Crews, General Counsel, The Texas Council

of Community Mental Health and Mental Retardation Centers, Inc. (the “TCCMHMRC”), to Honorable Greg Abbott,

Attorney General of Texas, at 2 (Oct. 18, 2005) [hereinafter TCCMHMRC Brief]; Letter from Honorable Tom

Vandergriff, Tarrant County Judge, to Honorable Greg Abbott, Attorney General of Texas (Oct. 19,2005); Brief from

Michael R. Crowe, Brown McCarroll, L.L.P., to Honorable Greg Abbott, Attorney General ofTexas, at 1 (Oct. 19,2005)

[hereinafter Brown McCarroll Briefl (briefs and letter on file with the Opinion Committee).

“See Briefs cited, supra note 9.

Mr. Albert Hawkins - Page 6 (GA-0416)

(2) determining whether to become a provider of a service

or to contract that service to another organization; and

(3) making recommendations relating to the most appropriate

and available treatment alternatives for individuals in need of mental

health or mental retardation services.

See TEX. HEALTH & SAFETY CODE 3 533.035(c), as added by Act of Apr. 29,1991,72d Leg,, R.S.,

ch. 76, $ 1, 1991 Tex. Gen. Laws 5 15,532 (effective September 1, 1991), amended by Act of Apr.

28, 1993, 73d Leg., R.S., ch. 107, Fj 6.03, 1993 Tex. Gen. Laws 195, 236 (effective August 30,

1993), Act of May 26, 1995, 74th Leg., R.S., ch. 821, 5 8, 1995 Tex. Gen. Laws 4 193, 4195

(effective September 1, 1995), Act of May 11,2001,77th Leg., R.S., ch. 367, 8 3,200l Tex. Gen.

Laws 671,673 (effective September 1,200l) (emphasis added). This provision clearly addressed

not just mental retardation services but also mental health and chemical dependency services. See

id Significantly, House Bill 2292 deleted section 533.035(c)(2), which had charged alocal authority

with considering various factors in “determining whether to become a provider of a service or to

contract that service to another organization.“” With this amendment, the only factors relevant to

whether a local authority may provide services directly are those listed in section 533.035(e)(1)--(2).

The fact that the legislature deleted section 533,035(c)(2) altogether rather than modifying it to

exclude mental retardation services indicates that the legislature intended House Bill 2292 to limit

the extent to which local authorities may be providers of all the services listed in section 533.035(c),

not just mental retardation services. This change to section 533.035(c) strongly supports the

conclusion that the legislature intended section 533.035(e) to address mental health as well as mental

retardation services.12

It has also been suggested that the legislature could not have intended the House Bill 2292

amendment to section 533.035(e) to apply to mental health services because House Bill 2292 also

adopted section 533.0354 of the Health and Safety Code.13 In pertinent part, section 533.0354

requires a local mental health authority to “ensure the provision of’ certain services that meet

specified treatment criteriaI and “to incorporate jail diversion strategies into the authority’s disease

“See Act of June 2, 2003, 78th Leg., R.S., ch. 198, 5 2.74, 2003 Tex. Gen. Laws 611, 676.

“The House Bill 2292 amendment to section 535.002(b) of the Health and Safety Code also supports the

conclusion that the legislature intended to limit local authorities’ ability to provide mental health services. See id. $

2.82A, at 680 (amending section 535.002(b) to prohibit the department from using a local mental health or mental

retardation authority to provide certain services if other providers are available) (effective September 1,2006).

13S’eeid. 5 2.75, at 676-77; see also Brown McCarroll Brief, TCCMHMRC Brief, supra note 9.

14SeeTEX. HEALTH& SAFETYCODEANN. 3 533.0354(a) (Vernon Supp. 2005) (“A local mental health authority

shall ensure the provision ofassessment services, crisis services, and intensive and comprehensive services using disease

management practices for adults with bipolar disorder, schizophrenia, or clinically severe depression and for children

with serious emotional illnesses. The local mental health authority shall ensure that individuals are engaged with

treatment services that are: (1) ongoing and matched to the needs of the individual in type, duration, and intensity; (2)

focused on a process of recovery designed to allow the individual to progress through levels of service; (3) guided by

(continued...)

Mr. Albert Hawkins - Page 7 (GA-0416)

management practices for managing adults with schizophrenia and bipolar disorder to reduce the

involvement of those client populations with the criminal justice system.“15 You do not ask us to

construe section 533.0354 and we do not do so here. We only note that section 533.0354 does not

require us to construe section 533.035(e) contrary to the latter section’s plain language and the

legislature’s simultaneous amendment of section 533.035(c). For example, section 533.0354

requires a local mental health authority to “ensure the provision of’ certain services. See TEX.

HEALTH& SAFETYCODE ANN. 3 533.0354(a) (Vernon Supp. 2005). It does not necessarily require

a local mental health authority itself to provide the services; arguably, a local authority could fulfill

its duty under the statute by contracting with other organizations to provide the required services.

A local mental health authority that is able to make the showing required by section

533.035(e)(1)-(2) could fulfill its duty under section 533.0354 by stepping in as a provider of last

resort.

For these reasons, we conclude that section 533.035(e) limits a local mental health and

mental retardation authority to serving as a provider of mental health services only as a provider of

last resort. l6

It has been suggested that if section 533.035(e) is construed to limit a local authority to acting

as a provider of last resort for mental health services, then it conflicts with statutes governing access

to mental health services.17 However, none of these statutes appears to require that mental health

services be provided by a local authority as opposed to other organizations.‘8 Moreover, before the

evidence-basedprotocols and a strength-based paradigm of service; and (4) monitored by a system that holds the local

authority accountable for specific outcomes, while allowing flexibility to maximize local resources.“).

“See id. 9 533.03.54(b).

161n2005 the legislature adopted House Bill 2572, which amended section 533.035(e) to clarify the extent to

which a local mental health authority may directly provide mental health services. See Tex. H.B. 2572, !j 2,79th Leg.,

R.S. (2005). Bill analyses indicate that House Bill 2572 was intended to resolve the issue you raise in this request. See

SENATE RESEARCH CENTER,SENATE COMM. ON HEALTH & HUMAN SERVICES,BILL ANALYSIS, Tex. H.B. 2572,79th

Leg., R.S. (2005) (“These provisions were amended by H.B. 2292,78th Texas Legislature, in a manner which restricted

the types of services that can be provided by local mental health and mental retardation authorities. These changes

adversely affected the local service delivery structure in ways that were not anticipated when the legislation was enacted.

Over the past two years, representatives of the public and private sector have worked to resolve these problems, and H.B.

2572 is the result ofthose efforts.“); see also HOUSE COMM. ONHUMAN SERVICES,BILL ANALYSIS, Tex. H.B. 2572,79th

Leg., R.S. (2005); SENATE COMM. ON HEALTH & HUMAN SERVICES, BILLANALYSIS, Tex. H.B. 2572,79th Leg., R.S.

(2005). As noted above, however, the Governor vetoed House Bill 2572, see Veto Proclamation, supra note 3, and

requested by executive order that the executive commissioner of the Health and Human Services Commission

“immediately request clarification from [this office] as to the applicability of Section 533.035(e) through(g) ofthe Health

and Safety Code to the provision of mental health services,” Tex. Gov. Exec. Order No. RP 45, 30 Tex. Reg. 1709

(2005), also available at http:llwww.govemor.state.tx.usidivisionslpresslexordersl~45 (last visited Feb. 2,2006).

17See Brown McCarroll Brief, supra note 9, at 2-4.

‘*See, e.g., 42 U.S.C. 8 1396a(23)(A) (2000) (requiring a state Medicaid plan to permit participants to select

providers); TEX. HEALTH & SAFETY CODE ANN. !j 571.004 (Vernon 2003) (requiring treatment in least restrictive

appropriate setting available).

Mr. Albert Hawkins - Page 8 (GA-0416)

adoption of House Bill 2292, section 533.035 did not require a local authority to provide mental

health services. A local authority had express authority to choose whether to “become a provider

of a service or to contract that service to another organization.” TEX.HEALTH & SAFETYCODE

tj 533.035(c)(2), as added by Act of Apr. 29,1991,72d Leg., R.S., ch. 76,s 1,199 1 Tex. Gen. Laws

515,532 (effective September 1, 1991), amended by Act of Apr. 28, 1993,73d Leg., R.S., ch. 107,

$6.03,1993 Tex. Gen. Laws 195,236 (effective August 30,1993), Act of May 26,1995,74th Leg.,

R.S., ch. 821, 5 8, 1995 Tex. Gen. Laws 4193,4195 (effective September 1, 1995), Act ofMay 11,

2001,77th Leg., R.S., ch. 367, 5 3,200l Tex. Gen. Laws 671,673 (effective September 1,200l).

Mr. Albert Hawkins - Page 9 (GA-04 16)

SUMMARY

Section 533.035(e) of the Health and Safety Code, which

provides that in “assembling a network of service providers, a local

mental health and mental retardation authority may serve as a

provider of services only as a provider of last resort” and only under

certain conditions, applies to both mental health services and mental

retardation services.

BARRY R. MCBEE

First Assistant Attorney General

ELLEN L. WITT

Deputy Attorney General for Legal Counsel

NANCY S. FULLER

Chair, Opinion Committee

Mary R. Crouter

Assistant Attorney General, Opinion Committee