Mental Health; Licensing of Facilities Described

Subject:

Mental Health; Licensing of Facilities Described in Article 10, Chapter 122, N.C.G.S.

Requested By:

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

Questions:

1. Is it the intent of G.S. 122-72 to license facilities or programs?

2. If it is the intent of G.S. 122-72 that facilities be licensed, then is it the intent of this statute to ensure that licensing apply specifically to the three types of facilities mentioned (i.e., home, school or hospital) or is the intent of this statute to license facilities that are established primarily to provide for the cure, treatment or rehabilitation of the mentally ill, mentally retarded or inebriates? In other words, what are the parameters of this statute?

3. What coverage is there for drug abusers who are not mentioned in G.S. 122-72? Are they not mentioned because 143B-210 (9) a. authorizes the Drug Commission to promulgate rules for the licensing of drug treatment facilities as provided by G.S. 90-109?

4. Are camps for emotionally disturbed and mentally retarded children, adult developmental activity programs and apartment living programs for mentally retarded adults included even though they are not a hospital, home or school?

5. What is the licensure responsibility of the Department of Human Resources if facilities provide services for the mentally ill, mentally retarded or inebriates which may not be for the cure, treatment or rehabilitation? Does this licensure responsibility include habilitation, recreation and custodial care?

6. What is meant by the term "schools" and what types of facilities or programs are covered by this statute?

7. Are skilled nursing facilities and intermediate care facilities covered by this statute?

8. Is the intent of this statute to license only residential facilities? If so, is there any licensure coverage for outpatient partial hospitalization services, crisis intervention services for mentally ill adults, early childhood intervention services for mentally retarded children and day treatment for emotionally disturbed children?

9. Are private psychiatric hospitals covered by this statute?

10. In (c) of this statute, to whom shall the semi-annual report be sent? Is it necessary to collect the data required by the statute from all private facilities or only those with which the Division of Mental Health, Mental Retardation and Substance Abuse Services does not contract for the provision of services?

Conclusions:

1. It is the intent of G.S. 122-72 to license facilities.

2. The actual function of the entity involved governs the need for licensure under G.S. 122-72.

3. Licenses for facilities for drug abusers are issued by the Department of Human Resources.

4. These types of operations are required to be licensed only if the actual nature and purpose thereof factually fall within the description set forth in the first sentence of G.S. 122-72(a).

5. If the total operation of the facilities fall outside of the "cure, treatment, or rehabilitation of mentally ill persons, mentally retarded or inebriates," then the licensure provisions of G.S. 122-72 do not apply.

6. In order to fall within the term "schools" as used in this particular statute the facilities involved must have a primary objective and purpose of curing, treating or rehabilitating mentally ill persons, mentally retarded persons or inebriates.

7. These types of facilities are not automatically covered by G.S. 122-72 unless they actually perform the functions prescribed by sub-section (a) of that statute.

8. G.S. 122-72 does not limit its coverage to residential facilities. The actual functions of the other types of facilities listed in question (8) and the clientel of such facilities determine the statutory applicability.

9. Yes.

10. The report is made to the Department of Human Resources and the statute makes no exception based upon contractual relationship with the Department of Human Resources.

As to question (1), from the language of G.S. 122-72 it appears that licensing of the facilities themselves is what is contemplated. The admission or commitment of individuals thereto and the rights of patients therein are regulated elsewhere. See G.S. 122-36(g), G.S. 122-56.2(b) and G.S. 122-58.2(7). Additionally, of course, professional licensing and authority to deliver various modes of treatment and services by various professions and disciplines, as described elsewhere in the North Carolina General Studies, serve to control the activities and programs of the private facilities involved.

G.S. 122-72(a) contains the following language which affords the answer to question (2):

"It shall be unlawful for any person or corporation to establish or maintain a private hospital, home or school for the cure, treatment, or rehabilitation of mentally ill persons, mentally retarded, or inebriates without having a license therefor from the Department of Human Resources."

The descriptive clause as to the purpose of the facility would seem to be controlling over whatever terminology the operator chooses to use in naming it. In other words, pragmatism should prevail over rigid semantics.

With regard to question (3), G.S. 122-72 requires the licensing of facilities serving inebriates. G.S. 122-36(c) defines an inebriate to include a person ". . . addicted to narcotic drugs or other habit forming drugs . . ." G.S. 90-109 also requires the licensing of operators of drug treatment facilities.

It is noted that G.S. 143B-210(9) a provides that the North Carolina Drug Commission shall establish standards and adopt rules and regulations for the licensing of "drug treatment facilities as provided by G.S. 90-109." Further, G.S. 143B-147(a)(2)(d) provides that the commission for mental health and mental retardation shall establish standards and adopt rules and regulations for the inspection and licensing of private hospitals for the "mentally disordered as provided by G.S. 122-72." (It might by noted that Article 10 of which G.S. 122-72 is a part, is entitled "Private Hospitals for the Mentally Disordered."

As a result, it would appear that both commissions are vested with the authority to establish standards and adopt rules and regulations in this area. It would further appear that statutory revision for the purpose of clarification of responsibility for standard setting and rules making in this area would be desirable. However, as indicated previously, both G.S. 122-72 and G.S. 90-109 place the actual licensing function in the Department of Human Resources. As a result, it would seem that the Secretary could administratively vest the authority for the act of licensing in such subordinate agency as she may chose.

With regard to question (4) through (7), again the licensing responsibility or authority would seem to depend upon the function of the facility involved. Sensible application of the statutory language would indicate that only facilities designed to restore an individual to a useful life or to effect a cure of an existing disease or problem fall within this particular statute. Undoubtedly other provisions are more pertinent to the licensing of operations which fall outside of the definition contained in G.S. 122-72(a).

With regard to the remainder of conclusions, they are self-explanatory without the need for further discussion. Inasmuch as these questions only dealt with the authority and responsibility of the Department of Human Resources, no discussion is included relative to the administrative means currently or prospectively utilized in the fulfilling of such functions. In passing, it should be noted that due to the vagueness of the current language, it is suggested amendatory language should be developed to clearly demonstrate that all facilities, what ever they may be called are covered if they are operated for any of the purposes described in the statute.

Rufus L. Edmisten Attorney General

William F. O’Connell Special Deputy Attorney General