Limitations on Utilization of Area Program Receipts for Services

Subject:

Requested By: Sarah T. Morrow, M.D., M.P.H. Secretary Department of Human Resources

Questions: Do the provisions of G.S. 122-35.47 apply to both single-county and multiple-county Area Mental Health, Mental Retardation and Substance Abuse Programs?

 

1.  
2. Can a county operating a single-county Area Mental Health, Mental Retardation and Substance Abuse Program:

    

a.

Take the year end fund (i.e., revenues which are in excess of expenditures) of an area program and use the fund balance for programs other than Mental Health, Mental Retardation and Substance Abuse Programs?

b.

Reduce its appropriation of local tax revenue to a single-county program if the area program must counter this reduction by using overrealized revenues during the same year?

c.

Take the fund balance as stated in (b) and in a subsequent year give the fund balance back to a single-county area wide program while reducing its appropriation from local revenue by an equal amount?

Conclusions: Yes.

 

1.  
2. G.S. 122-35.47 prohibits a county which is operating a single-county Area Mental Health, Mental Retardation and Substance Abuse Program from taking any of the actions described in question number 2.

    

Article 2F of Chapter 122 deals exclusively with the operation of Area Mental Health, Mental Retardation and Substance Abuse Programs. The present question appears to arise from the language contained in the last sentences of G.S. 122.35.36(1) and G.S. 122-35.47, both of which sections are included within Article 2F.

The former statute defines an area authority and delineates its responsibilities. Its last sentence provides as follows:

"An area mental health, mental retardation and substance abuse authority is a local political subdivision of the State except that a single-county area mental health, mental retardation, and substance abuse authority shall be considered a department of the county in which it is located for the purpose of Chapter 159 of the General Statutes."

G.S. 122-35.47 requires the collection of fees for services rendered by an area authority where such collection is appropriate. The last sentence of this section contains the following proviso:

"All funds collected from fees shall be utilized for the fiscal operation or capital improvement for the area mental health, mental retardation and substance abuse programs and shall not reduce or replace the budgeted commitment of local tax revenue."

Apparently some concern has been raised as to whether there is conflict between the portions of the two sections just quoted. This concern seems to focus on whether the last sentence of G.S. 122-35.47 is limited to multiple-county area programs.

Initially, no provision is readily discernible in Chapter 159 which would mandate a procedure contrary to the requirements of G.S. 122-35.47. Further, Article 2F clearly deals with both multiple-county and single-county area programs. In all instances where the General Assembly intended to distinguish between multiple and single-county operations, that intent has been manifested by specific language like that to be found in G.S. 122-35.39(a)(c) and G.S. 122-35.46. Significantly, G.S. 122-35.47 contains no such distinguishing or limiting language.

From the approach taken by the legislators in providing the statutory basis for the operation of area programs, it is clear that they contemplated uniformity in the operation of these programs except where a distinguishing provision is made. As a result, it must be concluded that the clear, unambiguous and specific language of G.S. 122-35.47 is controlling over both single-county and multiple-county area programs.

Of course, Chapter 159 gives the County Commissioners the authority to approve budgets. In the situation described in question number (2)(c), what is prohibited is the utilization of fees collected by an area program as justification for reduction of appropriation of local funds to the area program.

Rufus L. Edmisten Attorney General

William F. O’Connell Special Deputy Attorney General