The following opinion is presented on-line for informational use only and does not replace the official version. (Mich Dept of Attorney General Web Site - www.ag.state.mi.us)



STATE OF MICHIGAN

FRANK J. KELLEY, ATTORNEY GENERAL


Opinion No. 6647

June 29, 1990

HOSPITAL FINANCE AUTHORITY:

Eligibility of a hospice and clinical laboratory facility for a loan under the Act

A hospice and clinical laboratory operated by the Michigan Cancer Foundation constitute a "hospital" or "hospital facility," as those terms are defined by the Hospital Finance Authority Act, and the Foundation is therefore eligible to apply for and receive a loan from the Michigan State Hospital Finance Authority for the acquisition, construction, improvement, or alteration of these qualifying facilities.

Thomas Letavis

Interim Executive Director

Michigan State Hospital Finance Authority

2nd Flr., Plaza One

P.O. Box 15128

Lansing, MI 48901

You have requested my advice with respect to the administration of the Hospital Finance Authority Act, 1969 PA 38, as amended, MCL 331.31 et seq; MSA 14.1220(1) et seq. You have asked whether the Michigan State Hospital Finance Authority is authorized to make a loan to the Michigan Cancer Foundation.

You have stated that the Foundation is a nonprofit Michigan corporation with section 501(c)(3) status under the Internal Revenue Code and that the Foundation is licensed by the Michigan Department of Public Health to operate a hospice and a clinical laboratory, and to provide radiation therapy and other health care services.

The legislative purpose for enacting the Hospital Finance Authority Act is set forth in section 2 of the Act, MCL 331.32; MSA 14.1220(2), which states:

It is declared that, for the benefit of the people of the state and the improvement of their health, welfare, and living conditions, it is essential that hospitals within the state be provided with appropriate means at reasonable cost to maintain, expand, enlarge, and establish health care, hospitals, and other related facilities; that hospitals be provided with the ability to refinance indebtedness; and that authorities created or incorporated under this act be provided with the ability to refund or to refund in advance obligations of 1 or more of those authorities. This act shall provide a method to enable hospitals in the state to provide or maintain at reasonable cost pursuant to reasonable terms the facilities, structures and services needed to accomplish the purposes of this act, all to the public benefit and good, to the extent and manner provided in this act.

Section 13 of the Act, MCL 331.43; MSA 14.1220(13), states, in pertinent part:

The state authority may lend money to hospitals for the acquisition, construction, improvement, or alteration of hospital facilities....

In section 3 of the Act, MCL 331.33; MSA 14.1220(3), the Legislature has defined the terms "hospital" and "hospital facilities" as used in the Act:

(e) "Hospital" means a nonpublic corporation, association, institution, or establishment located within the state for the care of the sick or wounded or of those who require medical treatment, operated without profit to an individual corporation or association. It includes nonprofit corporations or other organizations engaged solely in some phase of hospital activity or in providing a supporting service to hospitals or public corporations which operate or own hospital facilities.

(f) "Hospital facilities" means a building or structure suitable and intended for, or incidental or ancillary to, use by a hospital and includes outpatient clinics, laboratories, laundries, nurses', doctors', or interns' residences, administration buildings, facilities for research directly involved with hospital care, maintenance, storage or utility facilities, parking lots, and garages and all necessary, useful, or related equipment, furnishings, and appurtenances and all lands necessary or convenient as a site for the foregoing. Hospital facilities include an office facility not less than 80% of which is intended for lease to direct providers of health care, and which has been determined by the department of public health to meet a demonstrated need and to be geographically or functionally related to 1 or more other hospital facilities, if the authority which is issuing the bonds determines the financing of the office facility is necessary to accomplish the purposes and objectives of this act.

While the Authority may lend money to hospitals for the acquisition, construction, and improvement of hospital facilities, section 47 of the Act, MCL 331.77; MSA 14.1220(47), requires that a certificate of need be issued, or a determination be made that a certificate of need is not necessary, before the Authority may issue the bonds or notes. Section 47 states in pertinent part:

Before a state or local authority adopts a resolution authorizing the issuance of bonds or notes and as a condition precedent to the authority to issue the bonds or notes, a certificate of need shall be obtained pursuant to Act No. 256 of the Public Acts of 1972, as amended, being sections 331.451 to 331.462 of the Michigan Compiled Laws, or a determination shall be secured from the agency issuing the certificate of need that a certificate is not necessary for the project....

1972 PA 256, referred to in this section, was repealed in 1978 and has been replaced by the Public Health Code, MCL 333.1101 et seq; MSA 14.15(1101) et seq. The provisions concerning certificates of need are set forth in section 22209(1) of the Public Health Code, MCL 333.22209(1); MSA 14.15(22209)(1):

(1) Except as otherwise provided under this part, a person shall not do any of the following without first obtaining a certificate of need:

(a) Acquire or begin operation of a new health facility.

(b) Make a change in the bed capacity of a health facility.

(c) Initiate a new service.

(d) Acquire covered medical equipment.

(e) Make a covered capital expenditure.

Based on the information you have provided, the Foundation was granted a certificate of need on April 14, 1988, to operate a hospice in Wayne County. The Foundation was further granted a clinical laboratory license and a controlled substance license. The Certificates of Need chapter of the Public Health Code, MCL 333.22205(1); MSA 14.15(22205)(1), defines "health facility" as:

(1) "Health facility", except as otherwise provided in subsection (2), means:

(a) A hospital licensed under part 215.

(b) A mental hospital, psychiatric hospital, or psychiatric unit licensed under the mental health code, Act No. 258 of the Public Acts of 1974, being sections 330.1001 to 330.2106 of the Michigan Compiled Laws.

(c) A nursing home licensed under part 217 or a hospital long-term care unit as defined in section 20106(6).

(d) A freestanding surgical outpatient facility licensed under part 208.

(e) A health maintenance organization licensed under part 210.

Section 20106(1) of the Public Health Code, MCL 333.20106(1); MSA 14.15(20106)(1), defines a "health facility" as including both a clinical laboratory and a hospice. Section 20106 of the Public Health Code, MCL 333.20106; MSA 14.15(20106), also defines the terms "hospice" and "hospital":

(4) "Hospice" means a health care program which provides a coordinated set of services rendered at home or in outpatient or institutional settings for individuals suffering from a disease or condition with a terminal prognosis.

(5) "Hospital" means a facility offering inpatient, overnight care, and services for observation, diagnosis, and active treatment of an individual with a medical, surgical, obstetric, chronic, or rehabilitative condition requiring the daily direction or supervision of a physician. The term does not include a hospital licensed or operated by the department of mental health.

The Michigan Cancer Foundation operates a licensed hospice and clinical laboratory. These operations constitute a "hospital" or "hospital facility" as those terms are defined by section 3 of the Hospital Finance Authority Act, supra. The Foundation has obtained a certificate of need as required by section 47 of the Hospital Finance Authority Act.

It is my opinion, therefore, that the hospice and clinical laboratory operated by the Michigan Cancer Foundation constitute a "hospital" or "hospital facility" as those terms are defined by the Hospital Finance Authority Act and the Foundation is therefore eligible to apply for and receive a loan from the Michigan State Hospital Finance Authority for the acquisition, construction, improvement, or alteration of these qualifying facilities.

Frank J. Kelley

Attorney General