The opinion
The Attorney General of Texas
August 4, 1980
MARK WHITE
Attorney General Honorable William R. Keener Opinion No. ML+216
Chairman
Texas Health Facilities Commission Licensing of home health agencies
Austin, Texas 78’731
Dear Mr. Rowland:
You heve asked two questions regarding article 4447u, V.T.C.S., which
requires all home health agencig to be licensed. Your agency evaluates the
need for new health care facilities as mandated by the Texas Health
Planning and Development Act, V.T.C.S., article 4418h. Persons subject to
the act must obtain a certificate of need cr exemption certificate before
constructing, changing or expand@ health care facilities. V.T.C.S., art.
441811,533.01. The commission also has authority to issue a declaratory ruling
on whether a particluar project requires a certificate of need cr an
exemption certificate. lc& S3.03.
Article 4447~1, V.T.C.S., provides for two kinds of home health egency
license. Those eenciee which have been or are in the process of being
certified by the Department of Health, Education and Welfare for medicare
reimbursement may receive a Class A license, while non-certified agencies
may receive a Class B license. The Department of Health may issue licenses
to persons fulfiilirg the requirements set out in section 7, of article 4447u,
V.T.C.S., which reads in pertinent part:
(b) In addition to the above requirements: (1) for
a Class A license, if the applicant is at the time of
filing an application a certified home health agency,
it shall include a copy of its letter of approval from
the Department of Health, Education, and Welfare
showing its compliance with federal conditions of
participation. If the applicant is not at the time of
filing its application a certified home health agency,
it must attach a copy of its certificate of need,
exemption certificate, or declaratory ruling. It must
also have been surveyed and be in the process of
receivhg its certificate from the Department of
Health, Education, and Welfare.
(2) For a Class B license, the applicant must show
proof of the services provided and geographical
territory in which such services have been provided as
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Honorable William R. Keener - Page Two (~~-216)
of the effective date of this Act and it must have requested a
survey for the purposes of confirming the services provided and
territory covered. If the applicant is not providing services as
of the effective date of this Act, it must attach a copy of its
certificate of need, exemption certificate, or declatory ruling.
In view of the quoted language, you ask whether it is the responsibility of the Texas
Department of Health or the Texas Health Facilities Commission to make the
determinations as to what home health agency services and in what counties services
were rendered prior to September 1,1979.
The Health Facilities Commission issues the certificate of need, exemption
certificate, or declaratory ruling which all uncertified applicants for a Class A license
and some applicants for a Class B license must &omit to the Department of Health as
part of the license application. A certificate of need is required where a health
facility wishes to skstantially expand a service currently offered or provide a new
service. V.T.C.S. art. 4418h, S3.01(a)(l). Thus, in order to decide whether to issue a
certificate of need or an exemption certificate end in order to make a declaratory
ruling as to whether either certificate is needed, the Commission must determine what
services a home health agency has offered and proposes to offer. The Commission
must therefore make the &terminations you inquired about for home health agencies
which apply to it for a certificate of need, exemption certificate or declaratory ruling.
These applicants should include all uncertified home health agencies which intend to
apply to the Department of Health for Class A license.
There sre two groups of applicants for Class B licenses. Home health agencies
which have not provided services as of the effective date of article 4447u, V.T.C.S.,
and which intend to apply for a Class B license must also petition the Health Facilities
Commission for a certificate of need, exemption certificate or declaratory ruling.
However, since this class of applicants provided no services prior to the effective date
of this statute, the Commission need not make any detailed fact findings as to the
scope of services provided.
Section 7(b)(2) of article 4447u, V.T.C.S., establishes another group of applicants
for a Class B license - home health agencies which have provided services as of the
effective date of the statute. Home health agencies of this description are not
required to get a certificate or ruling from the Health Facilities Commission in order
to apply to the Department of Health for a Class B license. Thus, in their case, the
Department makes the determinations as to services provided and geographical
territory covered.
You next ask whether it is the Commission’s responsibility to determine whether
the provision of particular services prior to September 1, 1979, qualifies the applicant
for licensure as a Class A home health sgency or a Class B home health agency.
Article 4447u, V.T.C.S., requires the Department of Health to “set minimum standards
for home health services licensed under this Act.” Sec. 4(b). Home health agencies
apply to the Department for a Class A or Class B license. V.T.C.S. art. 4447u, $7(a).
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Honorable William R. Keener - Page Three (pIF7-216)
The Department must issue a Class A or Class B home health service license to each
applicant who fulfills the requirements set out in section 9(a) of article 4447u, V.T.C.S.
Article 4447u, V.T.C.S., clearly vests in the Department of Health authority to
determine whether a particular applicant is entitled to a Class A or Class B license.
The Commission need not make this determination.
SUMMARY
Uncertified home health agencies which wish to apply to the
Department of Health for a Class A license and home health
agencies which have not provided services prior to the effective
date of article 4447u, V.T.C.S., and which wish to apply for a
Class B license must first petition the Texas Health Facilities
Commission for a certificate of need, exemption certificate, or
declaratory ruling. In acting upon these requests, the Comm-
ission must make certain determinations as to the scope of
services previously rendered by the agency. The Department of
Health will make those determinations for home health agencies
which have rendered services prior to the effective date of
article 4447u, V.T.C.S., and which apply to it for a Class B
license. The Department is responsible for determining whether
a particular applicant is qualified for a Class A license or a
Class B license.
Attorney General of Texas
JOHN W. FAINTER, JR.
First Assistant Attorney General
Prepared by Susan Garrison
Assistant Attorney General
APPROVED:
OPINION COMMITTEE
C. Robert Heath, Chairman
Carla Cox
Susan Garrison
Rick Gilpin
Bruce Youngblood
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