STATE OF MICHIGAN

FRANK J. KELLEY, ATTORNEY GENERAL

Opinion No. 5665

February 22, 1980

MENTAL HEALTH:

Authority of Director of Department of Mental Health

Community mental health boards

APPROPRIATIONS:

Expenditure of monies appropriated for community mental health programs

The Director of the Department of Mental Health is without authority to terminate a county community mental health board or to assume the direction of its operation.

The Department of Mental Health may provide mental health services in a county where the county community mental health board is expending allocated mental health funds in a manner not provided for in the approved plan and budget, and the Director of the Department of Mental Health may use funds appropriated by 1979 PA 105 to provide community mental health services to such county.

Frank M. Ochberg, M.D.

Director

Michigan Department of Mental Health

Lewis Cass Building

Lansing, MI 49826

You have asked for my opinion with regard to the following question: 'May the Department of Mental Health make inoperative the Wayne County Community Mental Health Board and provide community mental health services in the place and stead of the Wayne County Community Mental Health Board?'

The powers and duties of the Department of Mental Health (hereinafter referred to as the 'Department') are set forth, in general, in the Mental Health Code, 1974 PA 258, as amended, MCLA 330.1001 et seq; MSA 14.800(1) et seq. Included in these powers and duties are the following set forth in the Mental Health Code, supra, Sec. 116:

Chapter 2 of the Mental Health Code, supra, provides for the establishment and operation of county community mental health programs. In substance, a county community mental health program is established by a majority vote of the board of commissioners of the county. Mental Health Code, supra, Sec. 210. Upon the establishment of the county program, the board of commissioners also establishes a 12-member county community health board, the members of which are appointed by the board of commissioners, except in the case of Wayne County where the mayor of the City of Detroit appoints six of the twelve members. Mental Health Code, supra, Secs. 212 and 216. A county community mental health program operates pursuant to an annual plan and budget approved by the county community mental health board. The annual plan and budget are approved by the county board of commissioners and submitted to the Department. The plan and budget, as submitted, are the county program's official application for State funds. Mental Health Code, supra, Sec. 226.

The Department reviews each county's annual plan and budget and may approve or disapprove the annual plan and budget in whole or in part. Departmental approval is necessary for State financial support. The Department of Mental Health allocates State appropriated funds in accordance with approved plans and budgets. Mental Health Code, supra, Sec. 232. The criteria for the approval or disapproval of a county plan and budget are set forth in the Mental Health Code, supra, Sec. 234.

The Mental Health Code, supra, Sec. 236, provides for the Department, at intervals during the year, to review the expenditures of a county community mental health program and to withdraw funds that have been allocated, with the concurrence of the county community mental health board, if allocated funds are not needed by the county program. This section also authorizes the Department to withdraw funds that have been allocated to a county program when such funds are being expended in a manner not provided for in the approved plan and budget. In the Mental Health Code, supra, Sec. 238, the legislature has provided that if a county director or board 'specifically so requests,' any action by the Department involving, inter alia, a withdrawal of funds 'shall be reviewed in consultation with the affected county director or board before such action shall be considered final,' and that at the consultation 'the representative of the county program shall be afforded full opportunity to present his position.'

The only method provided in the Mental Health Code, supra, for the termination of a county program is found in Sec. 220:

From the foregoing recital of the provisions of the Mental Health Code, supra, it is apparent that it contains no provision authorizing the Department of Mental Health to unilaterally terminate nor to operate a county community mental health program. This is not the end of the inquiry, however. The Department has the duty under the Mental Health Code, Sec. 116, supra, quoted above, to ensure that mental health services are available to all citizens of the State. Pursuant to that same section, the Department has authority to provide any type of mental health service, either directly or through contract. The Department is directed in subpart (e)(i) of that section to 'administer the provisions of chapter 2 so as to promote and maintain an adequate and appropriate system of county community mental health services throughout the state.' And, subsection (e)(ii), while it makes it the objective of the Department to shift from the State to a county the primary responsibility for the direct delivery of public mental health services, contains the conditional language 'whenever such county shall have demonstrated a willingness and capacity to provide an adequate and appropriate system of mental health services for the citizens of such county.'

The Mental Health Code, supra, Sec. 314, provides that the county's annual appropriation for the cost of services provided by the State and for the county's cost of supporting the county community mental health program shall be made as a single appropriation to the board of the county program. ⁽¹⁾

You advise that Wayne County, apparently in disregard of this section, had budgeted funds for its community mental health program for only four months beginning December, 1979.

The Wayne County Community Mental Health Board has submitted the county's annual plan and budget to the Department. This plan and budget has been approved pursuant to the provisions of the Mental Health Code, Sec. 232, supra. The plan and budget, as approved, include in the total amount of the budget, the 10% required to be provided by Wayne County for the State fiscal year beginning October 1, 1979, and the Department's allocation of State funds was predicated upon Wayne County in fact appropriating its full 10% and not some fraction thereof.

In my opinion, under these circumstances (the failure of Wayne County to appropriate its full 10% of the budget), the provisions of the last sentence of the Mental Health Code, Sec. 236, supra, come into play. That sentence reads, 'The department may withdraw funds that have been allocated to a county program when such funds are being expended in a manner not provided for in the approved plan and budget.' Thus, because Wayne County has not appropriated its full 10% to the approved plan and budget of the Wayne County Community Mental Health program, the Department may withdraw funds that have been allocated to the Wayne County program at least in proportion to the amount of the budget not appropriated by Wayne County. In short, assuming that Wayne County has appropriated only 5% rather than the required 10% of the community mental health program's approved plan and budget, the Department at least may reduce its allocation from 90% of the approved plan and budget to 45%.

It should be reiterated, however, that the provisions of the Mental Health Code, Sec. 238, supra, provide that any action by the Department for the withdrawal of funds from a county program must be reviewed, if requested, in consultation with the affected county director or board before such action shall be considered final.

The next part of your question is whether the Department may use the funds withdrawn from allocation to the Wayne County Community Mental program to implement under the Department's direction community mental health services within Wayne County. In my opinion, under the provisions of the Mental Health Code, Sec. 116, supra, set forth above, the Department has ample authority to provide community mental health services in Wayne County, particularly in view of the fact that Wayne County has not demonstrated a willingness and capacity to provide an adequate and appropriate system of mental health services for the citizens of the county. 1979 PA 105, the appropriations act for the Department, appropriates money for community mental health services and contains no provision which would preclude the Department from using the money appropriated for that purpose to provide mental health services in a county which is expending allocated mental health funds in a manner not provided for in the plan and budget approved by the Department.

In summary, under the facts herein recited, it is my opinion that while the Department may not terminate the Wayne County Community Mental Health Board nor assume the direct operation of the Wayne County Community Mental Health Program, the Department may withdraw funds previously allocated to the Wayne County Community Mental Health Program and use such funds to provide community mental health services in Wayne County. An action to withdraw funds would not be final until it was reviewed in consultation with the Wayne County Community Mental Health Board or its director, if a review were specifically requested.

Frank J. Kelley