Number 10 March 7, 1980

Number 10 March 7, 1980 Alfred L. Frechette, M.D. Commissioner Department of Public Health 600 Washington Street Boston, MA 021 11 Dear Dr. Frechette: You have requested my opinion whether certain provisions of the Com- monwealth's determination of need ("DoN") statute, G.L. c. Ill, §§25B-25H, are in conflict with federal regulations promulgated pursuant to the National Health Planning and Resources Development Act of 1974, P.L. 93-641 (the "Act"), governing receipt of funds from the Department of Health, Education and Welfare ("H.E.W."). Specifically, you have asked whether section 25H of the DoN statute renders certain other provisions of that statute null and void because they conflict with federal law. The DoN provisions that you believe may conflict with federal regulations, and as to which you have requested my opinion, are: (1) that portion of G.L. c. Ill, §25C which exempts from determination of need review certain research and training projects undertaken by a health care facility and (2) the provisions of section 25C which deems an application for determination of need approved if not acted upon within specified time limits. P.D. 14 117 For reasons set forth below, I have concluded that section 25H will render the cited provisions null and void if they conflict with federal regulations and if certain factual conditions are met. Since factual determinations are not within the scope of my authority to render legal opinions, I must respectfully decline to reach that issue. I find that the research and training exemption is not in conflict with the express provisions of the federal regulations, and, as noted below, I decline to undertake an interpretation of federal law which is required in order to fully review the question which you have posed. Finally, I conclude that the provision of the Massachusetts statute which requires that an application be deemed approved if not acted upon within specific time limits does conflict with express language of the federal regulations. In general, the Act provides grants for health planning and development to state agencies designated under agreements with the Secretary of H.E.W. See, e.g., 42 U.S.C. §300M-4 (1976). To receive such a designation, the state must administer a certificate of need program which conforms to federal require- ments.^ 42 U.S. C. §§30m(b) (1) and 300m-2(a) (4) (1976). The penalty for lack of compliance is loss of certain federal funds. The state is not required, therefore, to adopt the federal DoN standards; federal standards are binding only if the state wishes to receive federal funding. See Townsend v. Swank, 404 U.S. 282. 292 (1971) (Burger, C.J. concurring). Accordingly, there are two ways to resolve a conflict between state and federal rules under the Act. First, the state may withdraw (or be removed) from the federal health planning program and continue to apply the conflicting law. In the alternative, the state statute might be construed to avoid or eliminate the conflict in order that the state may remain in the program. Determination of the appropriate resolution of such conflict will depend in each case on an analysis of legislative intent. 1978/79 Op. Atty. Gen. No. 6, Rep. A. G., Pub. Doc. No. 12 at (1979). In the absence of express lan- guage, there may be no indication that the legislature in enacting the statute had ever considered the steps to be taken in case of conflict. 1976/77 Op. Atty. Gen. No. 20, Rep. A. G., Pub. Doc. No. 12 at 126 (1977).^ The Massachusetts DoN statute, however, contains an express indication of legislative intent. General Laws c. Ill, §25H states: The provisions of sections twenty-five B to twenty-five G, inclu- sive, are severable and if any provision shall be in violation of any federal rule or regulation established by the Department of Health, Education and Welfare as a condition for receiving federal funds in connection with any program administered by said department, such M understand that Massachusetts has entered into a full designation agreement with the Secretary of H.E.W. on July I. 1979. As noted in your request, the designation agreement designates an agency of slate government to serve as the "stale health plannmg and development agency". 42 U.S.C §300m (1976) As a condition of that agreement, the Department was to obtam "an acceptable authoritative assurance (preferably from the State Attorney General)" regardmg the issues considered herein. 1 was not consulted regarding this condition before the agreement was signed, nor did your request inform me of it. Since your reqeust for an opinion. Congress has passed P.L 96-79. amending the Act. In this opinion, I consider the Act and regulations as they existed at the time of execution of the designation agreement, because that is the time at which you were requested by H.E.W. to obtain an assurance of compliance. ^The Act provides that if by certain specific time limits a designation agreement with a state is not in effect, the Secretary shall not make any grant to the state under this Act, the Community Mental Health Centers Act. and the Comprehensive Alcohol Abuse and Alcoholism Prevention, Treatment and Rehabilitation Act of 1970. 42 U.S.C. §300m (d) (1976). ^When the state statute involves participation in a federally funded program, there may well be a presumption iha' "'he slate docs not intend its entire participation . . to cease simply because of one element of noncompliance" or conflict. ABCD. Inc. v. Commis- sioner of Public Welfare. Mass. Adv. Sh. (1979) 1566, 1577. —....^ -....^^.....^^aMJ 118 P.D. 14 provision shall be null and void and such violation shall not affect or impair any of the remaining provisions. This section clearly demonstrates an overriding legislative intent that the Commonwealth remain in conformity with federal law so that the state will not lose federal funding. Application of this section depends on a two-fold finding: (1) that a provision of the statute conflicts with H.E.W. rules or regulations, and (2) that compliance with the federal provision is a condition for receipt of federal funds. The likelihood of loss of federal funds is a factual determination within the ambit of your Department. As Commissioner, you are involved in funding procedures for the Department and are in a position to determine the relationship between various federal requirements and the continued receipt of federal funds. ^ Determination of this issue is therefore more appropriately made by you, and accordingly, I offer no opinion. Cf. 2 Op. Atty. Gen. at 570, 572, 575-76 (1905) (noting limitations on scope of an opinion of the Attorney Gen- eral). In order to determine whether the statute conflicts with H.E.W. rules or regulations, I must analyze each of the statutory provisions cited in your re- quest. The first provision exempts from the general DoN requirements certain expenditures and changes in services connected with health care research or training.^ G.L. c. Ill, §25C, H 1 . That section provides in relevant part that: Notwithstanding any contrary provision of law, no person or agency of the commonwealth or any political subdivision thereof shall make substantial capital expenditures for construction of a health care facility or substantially change the services of such a facility unless there is a determination by the department that there is need therefore; provided however, that no such determination shall be required whenever any such expenditure in excess of one hundred and fifty thousand dollars or any change in service (1) shall be essential to the conduct of research in the basic biomedical or health care delivery areas or to the training of health care personnel, (2) shall at no time result in any increase in the clinical bed capacity or out patient load capacity of the facility, and (3) the cost of such expenditure or change shall cause no increase in the total patient care charges of the facility to the public for health care services, supplies and accommodations. . . . The Act requires as a condition of federal funding that states establish and maintain a "certificate of need program which applies to new institutional health services proposed to be offered or developed." 42 U.S.C. §300m-2 (a) (4) (B) (1976). As defined in regulations issued pursuant to the Act, "new institutional health services" proposed to be offered or developed and. there- fore, subject to review include any capital expenditure in excess of $150,000, by or on behalf of a heaUh care facility or HMO. 42 C.F.R. §123.404 (a) (2). Only those new institutional health services which are granted certificates of need shall be offered or developed. 42 C.F.R. §123.405 (a). *C). note 1 . supra ^In the absence of such exemption, health care research and training projects would be subject to the same state approval procedures as all other health care projects: That is. the Department of Public Health must determine that there is a need for any such projeci involving capital expenditures in excess of $150,000 or creating substantial changes in the services of a health care facilitv See G L c. 111. S25C, P.D. 14 119 Neither the federal Act nor the regulations promulgated thereunder expressN include research and training projects as new institutional health services which must be reviewed by a state certificate of need program. I must respectfully decline to undertake an interpretation of federal law which is more appropriately made by federal authorities. Accordingly. I confine myself to noting the ab- sence of conflict on the face of the Act and regulations. Cf. 1965/66 Op. Atty. Gen., Rep. A. G.. Pub. Doc. No. 12 at 370, 373 (1966) (declining to interpret federal constitution in order to determine whether state statute was in conflict).^ I conclude, therefore, that there is presently no express conflict with the state exemption for such undertakings. ^S'cv 1978/79 Op. Atty. Gen. No. 6. Rep. A. G., Pub. Doc. No. 12 at (1979). The second provision cited in your request concerns that portion of the DoN statute which provides that "[a]ny application which has not been acted upon by the department within such [stated] time limits shall be deemed to have been approved." G.L. c. Ill, §25C,11 5. The federal Act and regulations expressly provide that only those new institutional health services which are found to be needed and which are granted certificates of need may be offered or developed within the state. 42 U.S.C. §300m-2 (a) (4) (B) (1976); 42 C.F.R. §123.405 (a) (2). If a determination of need is not made within the specified time period, a certificate of need is not to be issued. 42 C.F.R. §123.407 (a) (IS)."* Because G.L. c. Ill, §25C,11 5 allows applications to be deemed approved in certain instances without an actual determination of need, that provision of the DoN statute conflicts with an express provision of federal law. In summary, I find a conflict between federal regulations and the Massachu- setts provision which deems an application for determination of need approved if not acted upon within specified time limits. I conclude that the Massachusetts research and training exemption does not conflict with the Act and regulations on their face. I decline to undertake the interpretation of federal law and the factual determinations necessary to answer the remainder of your request. Very truly yours, FRANCIS X. BELLOTTI Attorney General ^Until a conflici is found to exist, vou have an obligation to carry out the procedures set forth in the state statute. See Opinion nf the Justices. Mass. Adv. Sh. (1978)1412, 1421-23; Dw\er v. Commissioner of Insurance. Mass. Adv. Sh. (1978) 1274. 1285-86; 1978/79 Op. Ally. Gen. No. 6 Rep. A. G.. Pub. Doc. No. 12 at ( 1979). ^The statement of the Secretary of H.E.W that he believes that research and training projects fall within the scope of the federal determination of need provisions. 44 Fed Reg 19306, 19312 (Apr 2, 1979). clearly lacks the tormality and nnalily ol a final interpretation by H E W See Pari o/ Boston Marine Terminal Assn v. ReJeriakiiebolaiiei Transallaniic. 400 US 6.. 71 (1970); 1978/79 Op Atty. Gen. No. 6 Rep. A, G.. Pub. Doc. No. 12 at (1979). While the statement suggests the possibility that future interpretation or rtile-making by H.E.W. may crystallize a conllicl {see note 7. infra). I cannot say that such a conflict is now presented , Further legislation by Congress might also crvstalli/.e a conflict. I note, however, that recent amendments to inc Act <Jf< no'<- '• supra) have changed the relevant language, but still have not addressed directly research and training projects. See P.L. 96-79 SI 17 (a). (Oct. 4. 1979). ^Federal regulations require that a slates procedures for reviewing DoN requests include •|plrovisions that if the State Agency docs not make a decision regarding a proposed new institutional health service within the period of time specified for State Agency review, a certificate of need shall not be issued." 42 C.F.R. SI 23.407 (a) (15). 120 P.D. 14