Untitled Texas Attorney General Opinion ( 1984 )

The Attorney Gendal of Texas
January 11, 1984
JIM MATTOX
Attorney General
Supreme Court Bullding Mr. Vernon M. Arrell Opinion No. ``-124
P. 0. BOX 12548 Commissioner
AM,,“, TX. 78711.2548 Texas Rehabilitation Commission Re: Jurisdiction of the Texas
51214752501
Telex 910/874-1387
118 E. Riverside Drive Rehabilitation Conxaisslonwith
Telecopier 5121475-0288 Austin, Texas 78704 regard to residents of certain
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
4824 Alberta Ave.. Suite 160 by article 4442~. V.T.C.S.:
El Paso, TX. 798052793
9151533.3484
1. If a facility is providing residential
services to residents, some ,of whom are clients
1001 Texas, Suite 700 currently receiving services from the Texas
/4uston, TX. 77002-31 tl Rehabilitation Commission, but others of whom are
12255888 residents privately placed, or residents placed
into the facility by a state agency other than the
SW Broadway, Suite 312
Texas Rehabilitation Commission, does the, Texas
Lubbock, TX. 79401-3479 Rehabilitation Commission’s jurisdiction apply
8061747.5238 only to those clients residing in the facility
currently receiving services from Texas
Rehabilitation Commission or is our jurisdiction
4309 N. Tenth, Suite B
McAllen, TX. 78501-1685 applicable to all residents in the facility?
5121682.4547
2. If the certifying state agency has
jurisdiction only over those clients in the
200 htahl Plaza, suite 400
San Antonlo, TX. 782052797
facility currently receiving services from the
512/225-4191 agency, which state agency, if any, is responsible
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
p. 525
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,ishedby
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:asmeeting 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,tbe
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``~responsibleonly 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,
p. 526
.
Mr. Vernon M. Arrell - Page 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
p. 527
Mr. Vernon M. Arrell - Page 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