Case Information
*1 The Attorney Gendal of Texas January 11, 1984 JIM MATTOX
Attorney General Mr. Vernon M. Arrell Opinion No. ~~-124
Supreme Court Bullding Commissioner P. 0. BOX 12548 AM,,“, TX. 78711.2548 Texas Rehabilitation Commission Re: Jurisdiction of the Texas 51214752501 118 E. Riverside Drive Rehabilitation Conxaisslon with Telex 910/874-1387 Austin, Texas 78704 regard to residents of certain Telecopier 5121475-0288 facilities 714 Jackson, Suite 700’ Dear Mr. Arrell: Dallas, TX. 7520215W 2w742aw4
You ask the following questions relating to certain facilities
that are aubject,to the licensing requirements or exemptions provided by article 4442~. V.T.C.S.: 4824 Alberta Ave.. Suite 160 El Paso, TX. 798052793 9151533.3484 1. If a facility is providing residential
services to residents, some ,of whom are clients currently receiving services from the Texas 1001 Texas, Suite 700 Rehabilitation Commission, but others of whom are /4uston, TX. 77002-31 tl residents privately placed, or residents placed 12255888
into the facility by a state agency other than the Texas Rehabilitation Commission, does the, Texas SW Broadway, Suite 312 Rehabilitation Commission’s jurisdiction apply Lubbock, TX. 79401-3479 only to those clients residing in the facility 8061747.5238 currently receiving services from Texas Rehabilitation Commission or is our jurisdiction 4309 N. Tenth, Suite B applicable to all residents in the facility? McAllen, TX. 78501-1685 5121682.4547 2. If the certifying state agency has jurisdiction only over those clients in the 200 htahl Plaza, suite 400 facility currently receiving services from the San Antonlo, TX. 782052797 agency, which state agency, if any, is responsible 512/225-4191 for enforcing standards and for protecting the
health, safety, and welfare of those residents An Equal Opportunity/ residing in the facility but not receiving Affirmative Action Employer services, from the agency?
Article 4442~ requires that “institutions,” as defined by that act, shall,be licensed by the Texas Department of Health. The act expressly exempts certain establishments from its application, including
a facility operated within the jurisdiction of a state or federal governmental agency, including but not limited to the Texas Rehabilitation *2 Mr. Vernon H. Arrell - Page 2 (J&&24) .,I’ ‘.
Comission. the Texas Department of Mental Realth and Mental Retardation, the Texas Department. of ~uttt&ti‘ Resdur&s,i~~the~ State Cosmission- for 'the Blind, the Texas Coaaaission on Alcoholism, the Texas Department of Corrections, and the Veterans' Administration, where the facility is primarily engaged in training. habilitation, rehabilitation. or education of clients or residents, and such facility has been certified through inspection or evaluation as having met standards establ,ished by the state or a federal governmental agency. .'~ V.T.C.,S. arti 4442~. §2(a)(6).
You advise us that the Texas Rehabilitation Colmaission [hereinafter TRC] contracts with halfway houses or other residential facilities operated mainly by nonprofit assooiations. for services designed to enable handicapped or disabled persons to engage in a gainful occupation or independent ,living. Survey teems from the TRC examine.numsrous facilities and certify .them:as meeting standards for varying services which TRC then purahasas from the facilities for its clients. We understand that the services that the TRC purchases from the facilities Mayo not always be the type of care utilized by residents of the ~facilities placed there by.other agencies or by private persons., ':,a ,
Depending on ,facts and circumstances that also are varied, the facilities~ kertified.by the. TRC for its varying services may or may not be licensed by,the Department of Health. An institution subj,ect to licensure is one which provides to four or more persons unrelated to the proprietor food, shelter, and,either minor treatment under the direction and supervision of a physician or 'services which are classified as protective:~services. If, a facility's services are classified as non-protective ~setiices. they are not services ~for purposes of identifying institutions subject to licensure. See V.T.C.S. ,art. :4442c, ~12(a).; Texas ,Dept. of Health, RniZ 301.54.06.OGl-.002. Some facilities certiffed'by the TRC may no,t be licensed because they-are operated within the jurisdiction of ,pther agencies,.such as the Texas Department ~of Mental Health and Mental Retardation and the i.Texas .Commission on Alcoholism. See Attorney - General Opinian JM-12~(1983).
You inquire whether the TRC. is~~~responsible only for persons residing in a facility who are its clients receiving rehabilitation services, and, if,~fts authority extends only to its, clients, which state agency+ .if any,, is responsible for enforcing standards and ,proteeting ..the welfare of,,the 'residents' who do not receive its services.
It is our~opinion that~ the TRC is responsible for supervision of clients, that, it ,p~aees~~in~~residentlal~ facilities following its certi- -, f~ication.:~,and. purchase 'of rehabilitation services. We believe, *3 . (~~-124)
however, that TRC's responsibility extends only to its clients and that neither section 2(a)(6) of article 4442~ nor its contractual relationship with the facility for those services expands TRC's statutory authority to include authority for the supervision of or expenditure of funds for persons other ,than the handicapped or disabled individuals who are entitled to the TRC's services.
The exemption from licensure provided by section 2(a)(6) of article 4442~ does not apply unless the facility is "operated within the jurisdiction of a state or federal agency" and is "certified through inspection or evaluation as having met standards established by the state or a federal governmental agency." See Attorney General Opinion JM-12. Under the facts presented to us, that does not appear to be the case. We believe that a contract between the TRC and a residential facility which is not operated within the TRC's jurisdiction, whereby the facility provides services to the commission's clients, does not alter the statutory power or duty of the licensing agency under article 4442~ to inspect the facility and to issue, deny, suspend, or revoke its license, when appropriate.
If a facility with which the TRC contracts for services is exempt from licensure because it is operated within the jurisdiction of another state agency or a federal agency, that agency has responsi- bility for residents who are not the TRC's clients. In the case of any facility licensed under article 4442~ , the Department of Health is responsible for enforcing its licensing standards and supervising the safety and welfare of all residents.
SUMMARY When the Texas Rehabilitation Commission purchases services for eligible persons from residential facilities, the commission's supervisory responsibility extends only to those residents receiving rehabilitation services purchased by the commission. The certification of facilities and purchase of services for persons by the Rehabilitation Commission does not exempt a facility from licensure by the Texas Health Department under article 4442~ or alter the responsibility of any agency to enforce standards and protect the health, safety, and welfare of the residents of the facility.
JIM MATTOX Attorney General of Texas *4 (m-124) TOM GREEN
First Assistant Attorney General
DAVID R. RICRARDS
Executive Assistant Attorney General
Prepared by Colin Carl
Assistant Attorney General
APPROVED:
OPINION COMMITTEE
.Rick Gilpin. Chairman
Colin Carl
Susan Garrison
Jim Moellinger
Nancy Sutton
p. 528