Untitled Texas Attorney General Opinion ( 1995 )

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Mate of Qexarr
DAN MORALES
Al-rORNEY
GENERAL December l&l995
David R. Smith, M.D. Opinion No. DM-369
Commissioner
Texas Department of Health Re: Whether hospital facilities
1100west49thstreet located at separate premises must
Austin, Texas 78756-3199 be separately licensed (RQ-822)
Dear Dr. smith
You ask aboutticensureof hospitals by the Texas Department of Health (“TDH”)
under chapter 241 of the Health and Safety Code, the Texas Hospital Licensing Law (the
“act”). speciiically, you ask:
1. Does TDH have authority, under Ten. Health and Safety
Code Ann. 3 241.023(c) to issue a license to a hospital for
additional facilities operated as a part of a hospital that are
located apart from the main premises?
2. Does TDH have authority under this statute to define
“premises”?
Health and Safety Code section 241.023(c), about which you ask provides that
TDH “may issue a [hospital] ticense only for the premises and person or govemmental
unit named in the application.” (Emphasis added.) You suggest that subsection (c)
indicates that the legislature contemplated that a “hospital” licensed under the act must
operate from a single “premises,” and that therefore TDH may not issue a hospital a
license for additional facilities at separate premises.
The term “premises” as used in subsection (c) could refer to multiple as well as
single 10cations.~ It would not necessarily be inconsistent with the section 241.023(c)
tThtam”prrmiseq”asuscdtomcan~a’atractoflandwiththcbuil~thaeon”istcshnicrlly
the pluralformoftb noun *premise.”See WERSTER’ NINTH
S NEWC~LLEXXATE DICIYONARY 928 (1983).
Howew,weanawarcofnofformafthcwordcoluistenSlyuJedfmrrferriagtoapluralityof
‘pRmisca” as distinct from one “premises.” Thus, mdu an oniinary rcadiag of aobsdion (c), seaion
241.023-which, again, provides that TDH “may issue a license only for the pmmkxs and person or
gownmuntaluait ~intheapplication”-thctam”pnmiscs”couldind~apluralityof’prcmises”
that is, multiple locations, named in an application. Compamthe provisionsof the Alcoholic Ewerage
Code ro@rding“promises”permittedto -sellalcohol, where it is clear that “premises”rofastoaaiagle
location. Forcxamplsseaion11.06prwidcsthat’[n]openonmsyurcapumit...cxaptattbeplsa,
sddms,prrmistqor~ti~forwhicbthpermitirisnrcd....”
David R Smith, M.D. - Page 2 (DM-369)
provisions, or any other statutory provisions, for a license application to name as the
hospital’s “premises” more than one location, and for TDH to license the hospital at such
multiple “premises.” Section 241.022, providing for the license application, does not refer
to “premises,” nor do the act’s definitions of “hospital.“r We do not believe that the
reference to “premises” in subsection (c) precludes TDH from issuing a hospital a license
which includes facilities located apart from the main premises.
We note that the act requires licensure of each “hospital.” See Health & Safety
Code $5 241.021 (“A person or governmental unit. may not establish, conduct, or
maintain a hoqital in this state without a license issued under this chapter.“), .022(c)
(TDH “shag require that each ho@rul show” indicated information on license
application), .025 (TDH “shal1 charge each hospifizf an annual license fee”) (emphasis
added); see also Attorney General Opinion WW-794 (1960) at 3 (“All hospitals. . must
be individually licensed.“). It would appear that the concern with the licensure of
additional facilities at separate premises, which you ask about, should be whether the
additional facilities should in fact be considered part of the same “hospital.” Again neither
the act’s definitions of “hospital” nor its other provisions indicate whether or under what
circumstances separately located facilities should be considered to be part of the same
hospital.
Under these circumstances, we believe that section 241.026(a) of the act, which
grants TDH broad authority to “adopt and enforce rules. . to Luther the purposes” of
the act, empowers TDH to adopt rules further defining “hospital” as the term is used in
‘%a term‘hospital,”underthe definitionin section 241.003, sobsection(6). “includesa gemzml
hospitaland a special hospital.” ‘GeneralHospitaI,”unders§ion (4). meaos an establishmentthat
(A) offersservices,facilities. and beds for use for morethan 24 hours
for two or moreunrelatedindividualsrequiringdiagnosis,treatment,or care
for illness, injury,deformity,abnormality,or pregnancy;aad
(B) regularlymaintains, at a minimmn, clinical Mmratoryservices,
diagnostic X-ray suvias, treatment ikilities including sorgeq or
obtctrical can or both, and otherdebitive mcdiealor sorgicd treatmentof
similarextcot.
“SpecialHospital,”undersubsection(11) meaos an establishmentthat
(A) offers services,facilities,and beds for use for morethan 24 hoon
for two or more muelated individoalswho are regularlyadmitted,treated,
and dis&argedand who mqnirescrviccsmore intenaivethm mom, board,
prsooal servkes, and generalmusing care;
(9) has clinical laboratoryfacilities, diagnostic X-ray facilities,
treatmentfaclliticsor otherdotinitivemedicaltreatmon~
(C) hasamedicalsIaffinregtdaraaendana;and
@) maintainsrecordsof the clinical workpnfonned for each patient.
p. 2006
David R. Smith, M.D. - Page 3 (DM-369)
the act for purposes of the requirement that each “‘hospital” be licensed. We believe that
such rules may make location of facilities with respect to each other a factor in
determining whether the facilities should be considered part of the same hospital for
licensure purposes. Such rules may also define the term “premises” as used in the act.
Any such rules, however, “may not impose additional burdens, conditions or restrictions in
excess of or inconsistent with the statutory provisions.” KeIIy v. IndustriaZAccident Bd.,
358 S.W.2d 874,876 (Tex. Civ. App.-Austin 1962, writ ref d n.r.e.). Also, agency rules
must be “reasonable.” See, e.g., Allstate Ins. v. State Bd. ofIns., 401 S.W.2d 131 (Tar.
Civ. App.-Austin 1966, writ refd n.r.e.)?
Under the Texas Hospital Licensing Law, Health and Safety
Code chapter 241, separate hospitals must be separately licensed.
The Department of Health may adopt reasonable rules consistent
with the Hospital Licensing Law which define the term “hospital” for
purposes of the requirement that each hospital be licensed, and may
make the proximity of facilities a factor in determining whether such
facilities should be considered one “hospital.”
DAN MORALES
Anomey General of Texas
JORGE VEGA
First Assistant Attorney General
SARAH J. SHIRLEY
Chair, Opinion Committee
Prepared by William Walker
Assistant Attorney General
3YouindicatcthatTDHhadpmporcdrulawhich(l)providedthata”ti~ahallbciscued
only for the.. . premises named in the application,”(2) d&cd the tam “premises”as “eentiguoos
buildings at the same location and streetaddressand under commondirection,*and (3) dcchmd that a
‘license shall not be exmdcd to other lccations for inpatientservices,outpatientservices,or any otlmr
atNias.” wemukmaod thatthcproposedndcshavcnowknwithdmwn.
P. 2007