Untitled Texas Attorney General Opinion ( 2014 )

ATTORNEY GENERAL OF TEXAS
GREG ABBOTT
September 23, 2014
Mr. JeffMay Opinion No. GA-1081
Collin County Auditor
2300 Bloomdale Road, Suite 3100 Re: Authority of a local behavioral health
McKinney, Texas 75071 authority designated under section 533.0356 of
the Health and Safety Code to participate in the
Department of State Health Service's vendor
selection process to provide services within the
authority's local service area (RQ-1193-GA)
Dear Mr. May:
You ask about the authority of the North Texas Behavioral Health Authority ("NTBHA")
to participate in a vendor selection process. 1 As background, you tell us that the NTBHA has
been designated as a "local behavioral health authority" under section 533.0356 of the Health
and Safety Code to plan, oversee, and manage the provision of mental health and substance
abuse services for a region that covers seven counties in North Texas. Request Letter at 1-2.
You explain that these services are actually provided by a vendor selected by the Texas
Department of State Health Services ("DSHS") through a competitive bidding process. !d. at 2.
You indicate that DSHS will be seeking new proposals from qualified providers to provide the
services under contract for 2015 and 2016. !d. You state that the NTBHA has been informed by
DSHS that the NTBHA may not "participate in the bidding and scoring process" of these
services because doing so would constitute a conflict of interest. !d. You do not explain on what
basis a conflict of interest may exist, and we will not speculate in that regard. See 25 TEX.
ADMIN. CODE § 412.54(b)(l) (2014) (providing that employees and officers of a local health
authority shall not have a conflict of interest in contracts management). We understand you to
ask whether the NTBHA has a legal right "to provide guidance and input to DSHS" during the
procurement process in accordance with the NTBHA's "legislative mandates." See Request
Letter at 2-3. Your question turns on a construction of the statutes that grant authority to the
NTBHA. To that end, we focus on a statute's plain language, which is the best indicator of
legislative intent. See Zanchi v. Lane, 408 S.W.3d 373 , 376 (Tex. 2013).
1
See Letter and Attachments from Mr. Jeff May, Collin Cnty. Auditor, to Honorable Greg Abbott, Tex.
Att'y Gen. at 1 (Mar. 28, 2014), http://www.texasattorneygeneral.gov/opin ("Request Letter" and "Attachments").
Mr. Jeff May - Page 2 (GA-1081)
At the outset, we note that DSHS "is responsible for administering human services
programs regarding" mental health and substance abuse. See TEX. HEALTH & SAFETY CODE
ANN. §§ 1001.072, .073 (West 2010). For any program that DSHS administers, DSHS is
authorized to "award[] contracts" or "select[] service providers" on the basis of "competitive
proposals," as well as the "demonstrated competence and qualifications" of potential providers
and the reasonableness of the fees for the services to be performed. !d. §§ 12.012(a), .0121(c).
Nothing in the statutory language governing DSHS's authority over the procurement process
requires the input or participation of a local behavioral health authority. But see id. § 12.0121(d)
(providing that DSHS may consider factors other than those provided in subsection 12.0121(c),
but only in an emergency).
Section 533.0356 grants DSHS2 the authority to "designate a local behavioral health
authority in a local service area to provide mental health and chemical dependency services in
that area," as well as the discretion to determine "the functions of the authority if designated."
!d. § 533.0356(b), (g); see also id. § 533.0356(i) (providing that DSHS "may adopt rules to
govern the operations of local behavioral health authorities"). Specifically, DSHS may delegate
to a designated local behavioral health authority "the authority and responsibility for planning,
policy development, coordination, resource allocation, and resource development for and
oversight of mental health and chemical dependency services in that service area." !d.
§ 533.0356(b). In addition, section 533.0356 provides that a designated authority has "all the
responsibilities and duties of a local mental health authority provided by Section 533.035 and by
Subchapter B, Chapter 534." !d. § 533.0356(b)(l). Section 533.035 provides that the executive
commissioner of the Health and Human Services Commission "may delegate to the local
authorities the authority and responsibility of the executive commissioner, the commission, or a
department of the commission" related to the planning, management, and oversight of services in
the relevant area. !d. § 533.035(a). Section 533.035 also provides that a local mental health
authority may be distributed funds
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;
2
Section 533.0356(b) provides that " [t]he department and the commission jointly may designate a local
behavioral health authority." TEX. HEALTH & SAFETY CODE ANN . § 533.0356(b) (West 2010). As referenced in
Title 7, the department is the Texas Department of Mental Health and Mental Retardation, and the commission is the
Texas Commission on Alcohol and Drug Abuse. Jd. §§ 531.002(6), 533.0356(a). The functions and duties of those
entities were transferred by legislative enactment to DSHS. See Act of June 1, 2003, 78th Leg., R.S., ch. 198,
§ 1.26(a), 2003 Tex. Gen. Laws 611, 641.
Mr. JeffMay - Page 3 (GA-1081)
(2) making recommendations relating to the most
appropriate and available treatment alternatives for
individuals in need of mental health or mental retardation
services; and
(3) procuring services for a local service area, including a
request for proposal or open-enrollment procurement
method.
!d. § 533.035(c). Subchapter B of chapter 534 governs the provision of community-based
services and directs a mental health authority to use a competitive procurement system and
contract model developed by DSHS when contracting with state funds. !d. § 534.055(a)-(d).
Pursuant to sections 533.035 and 533.0356, a local behavioral health authority may be
delegated the authority and funds to procure and assemble a network of service providers for its
region on its own, in which case subchapter B of chapter 534 would require the use of a
procurement system and contract model developed by DSHS. But neither statute indicates
whether or to what extent a local behavioral health authority must participate in the process of
procuring service providers when it has not fonnally been delegated that authority. Nor does any
other statute we are aware of expressly ~rant a local behavioral health authority the independent
authority to participate in that process. Therefore assuming ba ed on your request that the
NTBHA has not been delegated the authority over the so licitation and procurem nt of service
providers that has been reserved by statute to DSHS, we conclude that DSHS has no legal
obligation to allow the NTBHA to participate in that process.
3
You include as an attachment to your request a copy of an "Operations Agreement" that "memorialize[s]"
the NTBHA' s creation and establishes its responsibilities as a local behavioral health authority. Request Letter at I;
. ee Attachments Exhibit A. By such an agreement, it is possible that the NTBHA is authorized to participate in or
prov ide input and guidance for the procurement process being conducted by DSHS. This office, however, does not
construe contracts. Tex. Att y Gen. Op. No. GA-0690 (2009) at 3-4.
Mr. JeffMay - Page 4 (GA-1081)
SUMMARY
The North Texas Behavioral Health Authority ("NTBHA")
can participate in tbe solicitation and procurement of serv ice
providers in its designated area only to the extent that it has been
delegated such authority under sections 533.035 or 533.0356 or by
agreement or contract. Otherwise the Department of State Hea lth
Services has no legal obligation to alJow the NTBHA to participate
in that process.
Very truly yours,
Attorney General of Texas
DANIEL T. HODGE
First Assistant Attorney General
JAMES D. BLACKLOCK
Deputy Attorney General for Legal Counsel
VIRGINIA K. HOELSCHER
Chair, Opinion Committee
Stephen L. Tatum, Jr.
Assistant Attorney General, Opinion Committee