OAG 79-134.

Case DateDecember 18, 1979
CourtOregon
Oregon Attorney General Opinions 1979. OAG 79-134. 171OPINION NO. 79-134 [40 Or. Op. Atty. Gen. 171]No. 7829December 18, 1979Ms. Kristine GebbieAdministratorHealth DivisionDepartment of Human ResourcesMr. Richard GrantDirectorState Health Planning and Development AgencyFIRST QUESTION PRESENTED If a hospital is licensed to have more beds than it could reasonably be expected to operate under existing licensing criteria, would either the State Health Planning and Development Agency (SHPDA) or the State Health Division (division) have authority to reduce the licensed bed capacity of the hospital?ANSWER GIVENSHPDA does not have such authority. The division is the agency responsible for the administration and enforcement of the health care facilities licensing statutes and regulations, including issuing and annually renewing the licenses of health care facilities, and could establish, by rule, that a hospital may not receive an initial or renewal license to operate more beds than it could reasonably be expected to put into operation under existing licensing criteria.SECOND QUESTION PRESENTEDMust each bed in each hospital meet the licensing criteria at the time of original as well as renewal licensing?ANSWER GIVENThe licensing criteria apply to original as well as renewal licensing. Whether each bed must meet the criteria depends upon whether the division finds that failure of a single bed to meet the criteria constitutes a "substantial failure" to comply with the applicable statutes, rules or standards, thereby invoking its power to deny a license. ORS 441.030(2).THIRD QUESTION PRESENTEDWhat legal responsibility and authority do SHPDA and the division have to ascertain that the number of hospital beds licensed is consistent with the licensing criteria in the rules of 172 the division and to investigate reports that a hospital is licensed for a greater number of beds than the hospital could reasonably be expected to put into operation within those criteria?ANSWER GIVENThe division, as the licensing agency, has the responsibility and authority to ascertain compliance with the licensing criteria and investigate reports of noncompliance, and may make inspections or require production of evidence as necessary to determine the truth or falsity of such reports. At present, however, the licensing criteria do not require that a hospital be licensed for no more beds than it could reasonably operate in compliance with those criteria. SHPDA does not share the division's responsibility or authority directly, but would need to determine the actual number of operable hospital beds in conjunction with its health planning responsibilities.FOURTH QUESTION PRESENTEDIs a licensee, under a license authorizing the operation of a given number of beds at a particular hospital, permitted to "transfer" part of that hospital's allowable bed capacity to another hospital owned by the licensee?ANSWER GIVENNo. DISCUSSION The rules of the Health Division (division) indicate that a hospital must provide a certain amount of space for each bed therein.(fn1) The location of patient beds is also strictly regulated.(fn2) Furthermore, if the number of patient beds reaches certain specified levels, the hospital must provide special facilities. For example, OAR 333-23-200 requires that all(fn3) hospitals with 100 beds or more must have space for various types of physical therapy, a complete pharmacy, a storage room for sterile supplies, a darkroom, etc. OAR 333-23-200(2)(e), (2)(f)(B), (5)(b)(M), (5)(b)(N). These and other requirements limit the number of beds a hospital may reasonably be expected to operate lawfully. ORS 441.015 provides that any person or governmental unit wishing to establish a health care facility (including a hospital, ORS 442.015(11)) must first obtain a license. Licenses are granted by the division. ORS 441.020(1). Each license shall specify the maximum allowable number of beds in the inpatient care facility. OAR 333-23-116(3). We are informed that for various reasons, including lack of space and other physical plant limitations, some hospitals may be licensed to operate more beds than the hospitals could reasonably be expected to put into operation in compliance with current licensing criteria.(fn4) This situation could interfere with health planning and result...

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