Ability to Close State Regional Hospital

Subject:

Requested By: Sarah T. Morrow, Secretary Department of Human Resources

Questions: If an appreciable portion of the mental health activities are continued at Dix Hospital by Human Resources, can the unused facilities be transferred to another State department by administrative action without submission to the General Assembly?

 

1.  
2. Is it permissible for any mental health operations remaining at Dix Hospital to be operated exclusively by a State agency other than the Department of Human Resources without legislative approval?

    

3. If it becomes necessary to completely close Dix Hospital because of a steadily decreasing patient population, can that closure be accomplished administratively, without submitting the issue to the General Assembly?

    

4. May the Department of Human Resources cease all mental health functions at Dix and transfer the physical plant to another State department by administrative action, without legislative approval?

    

5. May the Department of Human Resources cease its operation of mental health functions at Dix, lease a portion of the facilities to an area mental health program to be used for mental health services such as inpatient/outpatient care for that area, and transfer funds from the Dix Hospital budget to that area program for operational expense, without legislative approval? May the Department of Human Resources then transfer the remaining facilities at Dix to another State department without legislative approval?

    

Conclusions: 1. Yes, if the remaining mental health activities are substantial, material and large enough to clearly amount to the continuation of a "hospital for the mentally disordered" as mandated by

G.S. 122-7.

1. Not without compliance with the provisions of Section 5(10), Article III of the Constitution of North Carolina.

    

2. Not without compliance with the provisions of Section 5(10), Article III of the Constitution of North Carolina.

    

3. Not without compliance with the provisions of Section 5(10), Article III of the Constitution of North Carolina.

    

4. Not without compliance with the provisions of Section 5(10), Article III of the Constitution of North Carolina.

    

Initially, the contents of the Constitution of North Carolina and several North Carolina General Statutes are vital to the conclusions arrived at in the five questions posed. Therefore, the following language from the Constitution and cited statutes is set forth verbatim, as follows:

1. "The hospital for mentally disordered, near Raleigh, shall be and remain a corporation under this name: Dorothea Dix Hospital. . . . Under their respective names each corporation is invested with all the property and rights heretofore held by each, under whatsoever name called or incorporated, and all other corporate names are hereby abolished." (G.S. 122-7)

    

2. "Reorganization of Department Heads. – With the approval of the Governor, each head of a principal State department may establish within his department any division. Each head of a principal State department may establish or abolish within his department any other administrative unit to achieve economy and efficiency and in accordance with sound administrative principles, practices, and procedures except as otherwise provided by law. When any such act of the head of the principal State department affects exising law of the provisions of Article III, Sec. 5(10) of the Constitution of North Carolina shall be followed." (G.S. 143B-10(b))

    

3. "Administrative reorganization. The General Assembly shall prescribe the functions, powers, and duties of the administrative departments and agencies of the State and may alter then from time to time, but the Governor may make such changes in the allocation of office and agencies and in the allocation of those functions, powers, and duties as he considers necessary for efficient administration. If those changes affect existing law, they shall be set forth in executive orders, which shall be submitted to the General Assembly not later than the sixtieth calendar day of its session, and shall become effective and shall have the force of law upon adjournment sine die of the session, unless specifically disapproved by resolution of either house of the General Assembly or specifically modified by joint resolution of both houses of the General Assembly." (Duties of the Governor, Section 5(10), Article III, Constitution of North Carolina).

    

From the above, it is clear that the General Assembly intended that Dorothea Dix Hospital should operate as a hospital for the mentally disordered and that it enacted the statutory basis for such operation. With such in mind, the provisions of G.S. 143B-10(b) automatically trigger the requirements for compliance with Section 5(10), Article III of the Constitution, such constitutional provisions hereinafter being referred to as an "Article III action". Thus, Conclusions (3) and (4) are in order.

With regard to question (1), there would be no necessity for Article III action if a substantial or appreciable portion or Dorothea Dix Hospital remains intact and operational under the name of Dorothea Dix Hospital. The quantum of physical facilities and operational functions remaining must be sufficient to comply with the intent of the General Assembly as manifested by the General Statutes cited above. With regard to the mechanics of such a transfer, the authority for reallocating the real estate involved in such a transfer is vested in the Department of Administration by G.S. 143-341(4)(g).

Question (2) appears to be predicated upon question (1) — i.e., it appears to deal with exclusive operation by a state agency other than the Department of Human Resources of the appreciable or substantial mental health operation or activities left in place after transfer of other unused facilities to another state agency. Under the same rationale just set forth, this type of transfer would fall within the provisions of G.S. 143B-10(b) and would require Article III action. Further, the General Statutes are replete with directives vesting jurisdiction over the field of mental health in the Department of Human Resources and placing responsibility for mental health operation and management and the delivery of mental health services on the Department of Human Resources. Statutes evidencing such legislative intent include, but are not limited to, G.S. 143B137, G.S. 143B-138, 143B-140, G.S. 143-147, G.S. 122-1, G.S. 122-1.2, G.S. 122-3, G.S. 122-4,

G.S. 122-12 and G.S. 122-13. Thus a negative response to Question (2) is required.

Question 5 really has several components, including:

a.

The Department of Human Resources ceasing operation of mental health functions at Dorothea Dix Hospital;

b.

The Department of Human Resources leasing a portion of the facility located at Dorothea Dix Hospital to an area program or area authority, possibly for inpatient/outpatient care;

c.

The Department of Human Resources transferring funds budgeted to Dorothea Dix Hospital to the area authority/program; and

d.

The Department of Human Resources transferring the remaining facilities to another State department.

With regard to component (c), the transfer to another entity, possibly for another purpose, of funds appropriated to the Department of Human Resources for use at Dorothea Dix Hospital would depend upon the terms set forth in the Appropriations Act. As to component (d), the ability to transfer a portion of the facilities of Dorothea Dix Hospital to another State department and the requirement for continuation of Dorothea Dix Hospital as a concomitant of such action has been previously discussed. In any event, though, after examining components (a) and (b), either separately or in conjunction with components (c) and (d), it is patent that the result effected would amount to the abolishment of a unit within the Department of Human Resources so as to fall within the edict of G.S. 143B(10)(b) which requires Article III action.

Rufus L. Edmisten Attorney General

Andrew A. Vanore, Jr. Senior Deputy Attorney General