Untitled Texas Attorney General Opinion ( 2009 )

ATTORNEY GENERAL OF TEXAS
GREG ABBOTT
October 20, 2009
Mr. Jon Weizenbaum Opinion No. GA-0742
Commissioner
Texas Department of Aging and Re: Whether the Texas Department of Aging and
Disability Services Disability Services may authorize assisted living
Post Office Box 149030 facilities to provide nursing services to the
Austin, Texas 78714-9030 terminally ill and other residents (RQ-0794-GA)
Dear Commissioner Weizenbaum:
Your predecessor asked about the Department of Aging and Disability Services' (the
"Department") interpretation of a rule allowing an assisted living facility "to use its own employees
to provide nursing services ... to a person who has a terminal condition or is experiencing an acute
illness of a short duration."l
The Legislature has defined an assisted living facility as an establishment that:
(A) furnishes, in one or more facilities, food and shelter to four or
more persons who are unrelated to the proprietor of the
establishment;
(B) provides:
(i) personal care services; or
(ii) administration of medication by a person licensed or
otherwise authorized in this state to administer the medication; and
(C) may provide assistance with or supervision ofthe administration
of medication.
lRequest Letter at 2 (available at http://www.texasattomeygeneral.gov).
Mr. Jon Weizenbaum - Page 2 (GA-0742)
Act of May 31,2009, 81st Leg., R.S., ch. 1106, § 2, sec. 247.002(1), 2009 Tex. Sess. Law Servo
3038, 3041 (to be codified at TEx. HEALTH & SAFETY CODE ANN. § 247.002(1».2 Personal care
services include:
(A) assistance with feeding, dressing, moving, bathing, or other
personal needs or maintenance; or
(B) general supervision or oversight of the physical and mental
well-being of a person who needs assistance to maintain a private and
independent residence in an assisted living facility or who needs
assistance to manage the person's personal life, regardless of whether
a guardian has been appointed for the person.
Id. § 2, sec. 247.002(5). In addition to allowing these services at an assisted living facility, the
Legislature has expressly authorized health care professionals to provide services at an assisted living
facility and has recognized residents' ability to contract with those professionals separately:
(b) A health care professional may provide services within the
professional's scope of practice to a resident of an assisted living
facility at the facility. This subsection does not authorize a
facility to provide ongoing services comparable to the services
available in [a convalescent or nursing home] ....
(c) A resident of an assisted living facility has the right to contract
with a home and community support services agency licensed
under chapter 142 or with an independent health professional for
health care services.
TEX. HEALTH & SAFETY CODE ANN. § 247.067(b)-(c) (Vernon 2001).
The Legislature has authorized the Department to adopt rules "relating to the quality of care
and quality of life" and "the assessment of the condition and service needs of each resident" of an
assisted living facility. Id. § 247.0011(b)(1)-(2). Accordingly, the Department has adopted Rule
92.41 (e)(I)(B), which states:
A facility must not admit or retain ... an individual who requires the
services of facility employees who are licensed nurses on a daily or
2The Eighty-first Legislature amended section 247.002 ofthe Health and Safety Code to adopt this defmition,
which became effective September 1, 2009. See Act of May 31,2009, 81st Leg., R.S., ch.lI06, § 2, sec. 247.002(1),
2009 Tex. Sess. Law Servo 3038, 3041-42 (to be codified at TEX. HEALTH & SAFETY CODE ANN. § 247.002(1)). Prior
to that time, "assisted living facility" was defmed as "an establishment that: (A) furnishes, in one or more facilities, food
and shelter to four or more persons who are unrelated to the proprietor of the establishment; and (B) provides personal
care services." Act of May 11, 1999, 76th Leg., R.S., ch. 233, § 1, sec. 247.002(1), 1999 Tex. Gen. Laws 1064, 1065.
Mr. Jon Weizenbaum - Page 3 (GA-0742)
regular basis. Individuals with a terminal condition or who are
experiencing a short-term, acute episode are excluded from this
requirement.
40 TEX. ADMIN. CODE § 92.41 (e)(I)(B) (2009).3 The Department interprets this Rule to "allow an
[assisted living facility] to use its own employees to provide nursing services, but only to a person
who has a terminal condition or is experiencing an acute illness of a short duration." Request Letter
at 2. Your predecessor has asked whether the provision of such services is allowed by law. Id. "An
agency may adopt only such rules as are authorized by and consistent with its statutory authority."
Pruett v. Harris County Bail Bond Bd., 249 S.W.3d 447,452 (Tex. 2008). In deciding whether a
particular administrative agency has exceeded its rule-making powers, the determinative factor is
whether the rule's provisions are '''in harmony with the general objectives of the Act involved.'"
Id. (citation omitted).
The Legislature has enumerated the services an assisted living facility can provide by statute:
food, shelter, personal care services, and the administration of medication. Act of May 31, 2009,
81stLeg., R.S., ch. 1106, § 2, sec. 247.002(1), 2009 Tex. Sess. Law Servo 3038, 3041 (to be codified
at TEx. HEALTH & SAFETY CODE ANN. § 247.002(1)). It has also emphasized that the Department
"must clearly differentiate an assisted living facility from a [convalescent or nursing home]." TEX.
HEALTH & SAFETY CODE ANN. § 247.026(b)(1) (Vernon Supp. 2008). Statutory provisions
regarding other types of facilities providing long-term care expressly authorize and regulate the
provision of nursing services. For example, continuing care facilities established under chapter 246
of the Health and Safety Code may furnish "personal care services, nursing services, medical
services, or other health-related services." Id. § 246.002(3) (Vernon 2001) (emphasis added).
Special care facilities, established under chapter 248 of the same code may provide "nursing or
medical care or services" to terminally ill patients. Id. § 248.002(8). In contrast, the Legislature has
not included "nursing services" in the list of services that assisted living facilities may provide. See
Act of May 31,2009, 81st Leg., R.S., ch. 1106, § 2, sec. 247.002(1),2009 Tex. Sess. Law Servo
3038,3041 (to be codified at TEX. HEALTH & SAFETY CODE ANN. § 247.002(1)).
A prior attorney general opinion addressed a similar question involving a rule adopted by the
Texas Board of Human Services. See Tex. Att'y Gen. Op. No. JC-0072 (1999) at 2-3. 4 That rule
authorized the licensed nursing staff of an assisted living facility to provide "occasional nursing
services" to the same categories of residents at issue here:
3The Department has further defmed "terminal condition" and "short-term acute episode." A terminal condition
is "[a] medical diagnosis, certified by a physician, of an illness that will result in death in six months or less." 34 Tex.
Reg. 244 (2009) (to be codified at 40 TEX. ADMIN. CODE § 92.2(51». A short-term, acute episode is "[a]n illness ofless
than 30 days duration." Id. (to be codified at 40 TEX. ADMIN. CODE § 92.2(47»; see irifi"a note 6.
4At the time JC-OOn was issued, assisted living facilities were called personal care facilities. The Legislature
changed the name from personal care facilities to assisted living facilities in 1999. See Act of May 11,1999, 76th Leg.,
R.S., ch. 233, § 1, 1999 Tex. Gen. Laws 1064, 1064 (Senate Bill 93). To avoid confusion, this opinion will use the term
assisted living facility to refer to both.
Mr. Jon Weizenbaum - Page 4 (GA-0742)
Structured or organized medical, nursing, or other care as
found in licensed hospitals and licensed nursing facilities, and similar
specialized facilities, cannot be furnished by the licensed [assisted
living] facility staff, but licensed nursing staff may administer
medication and provide general supervision or oversight of the
physical and mental well-being of residents, including occasional
nursing services consistent with the needs of individuals described in
§ 92.41(d)(2)(A) of this title ... , enabling them to maintain their
independence. . . .
Id. at 3 (citing 23 Tex. Reg. 7042 (1998».5 Finding "nothing in the statute that authorizes [an
assisted living] facility to furnish nursing services, occasional or otherwise," this office concluded
that the rule was "ultra vires" to the extent it permitted an assisted living facility to provide services
beyond those described as personal care services in section 247.002 of the Health and Safety Code.
Id. at 1, 4. Aside from amending the defInition of assisted living facility to allow for the provision
or supervision of the administration of medication, the statutorily-enumerated services that an
assisted living facility is authorized to provide have not changed since the issuance of JC-0072.
Compare Act of May 31,2009, 81stLeg., R.S., ch. 1106, § 2, sec. 247.002(1),2009 Tex. Sess. Law
Servo 3038, 3041 (to be codifIed as an amendment to TEx. HEALTH & SAFETY CODE ANN. §
247.002(1», with Tex. Att'y Gen. Op. No. JC-0072 (1999) at 2 (quoting the then current version of
section 247.002(3».
Your predecessor explained that certain 1999 amendments to the assisted living facility
statute "became effective after JC-0072 was issued," and she believed they may have altered the
conclusion in that opinion. Request Letter at 2.6 SpecifIcally, your predecessor explained that
section 247.00 11 (c), which was added to chapter 247 in 1999, "provides that assisted living services
should enhance a person's ability to age in place in a residential setting while receiving increasing
or decreasing levels of services as the person's needs change" and that this overriding goal requires
that assisted living facility "services be flexible to serve the changing needs" of residents. Id. at 2;
TEx. HEALTH & SAFETY CODE ANN. § 247.0011(c) (Vernon 2001). While the Legislature'S 1999
amendments to chapter 247 were made with the intent of promoting "policies allowing an assisted
living resident to remain in an assisted living facility longer without being prematurely placed in a
nursing home," it does not necessarily follow that the Legislature intended to authorize assisted
living facilities to use facility staff to provide the nursing services that the Department's
interpretation of Rule 92.41(e)(1)(B) would allow. SENATE COMM. ON HEALTH SVCS., SENATE
SThe 1998 version of section 92.2, entitled "Basis and Scope," has been repealed; section 92.2 currently
provides a list of defmitions. See 23 Tex. Reg. 7042 (1998), amended at 25 Tex. Reg. 6362 (2000) (in response to
Senate Bill 93), repealed at 34 Tex. Reg. 240 (2009). See also supra note 4.
6The amendments referred to were enacted prior to the issuance of Texas Attorney General Opinion JC-0072,
and they were acknowledged in that opinion. Tex. Att'y Gen. Op. No. JC-0072 (1999) at 2 n.2. Specifically, this office
recognized that "[r]ecent legislation amending other provisions of chapter 247 of the Health and Safety Code does not
alter the statutory defmition of the tenn 'personal care services.'" Id.
Mr. Jon Weizenbaum - Page 5 (GA-0742)
RESEARCH CENTER, BILL ANALYSIS, Tex. S.B. 93, 76th Leg., R.S. (1999). The Legislature could
have amended the statute to expressly recognize that assisted living facilities themselves can provide
nursing services. Instead, the Legislature recognized the authority of health care professionals7 to
"provide services within the professional's scope ofpractice to a resident of an assisted living facility
at the facility" but emphasized that assisted living facilities were not authorized "to provide ongoing
services comparable to the services available in [a convalescent or nursing home] licensed under
Chapter 242." TEx. HEALTH & SAFETY CODE ANN. § 247.067(b) (Vernon 2001).
Thus, residents at assisted living facilities may privately contract with "a home and
community support services agency," such as a hospice organization, or an "independent health
professional" to receive nursing services while at the assisted living facility. Id. § 247.067(c)
(emphasis added). Doing so allows these individuals to age in place as the Legislature intended.
However, unless the services fall within those defined as personal care services or the administration
of medication or are rendered in response to an emergency medical situation, we conclude that
assisted living facilities may not use facility staff to provide nursing services to a resident that is
terminally ill or is experiencing a short-term, acute illness. See Tex. Att'y Gen. Op. No. JC-0072
(1999) at 5 (this opinion does not restrict an assisted living facility's ability to respond to an
emergency medical situation).
Our opinion should not be read to prohibit assisted living facilities from admitting or
retaining individuals with a terminal condition or who are experiencing a short-term, acute episode.
See TEx. HEALTH & SAFETY CODE ANN. § 247.066(a) (Vernon Supp. 2008) ("The department may
not require the removal and relocation of a resident ... if the resident's presence in the facility does
not endanger other residents and the resident can receive adequate care at the facility through
services: (1) provided by the facility in accordance with its license; or (2) obtained by the resident
from other providers."). If such individuals can contract with independent health care professionals
to receive the medical and nursing care that they need while residing in an assisted living facility,
nothing in the statute prohibits such individuals from being admitted to or remaining at the facility.
See 40 TEx. ADMIN. CODE § 92.41(e)(1)(A) (2009) ("If the individual is appropriate for placement
in an assisted living facility, then the decision that additional services are necessary and can be
secured is the responsibility of facility management .... ").
7"Health care professional" is defined as "an individual licensed, certified, or otherwise authorized to administer
health care, for profit or otherwise, in the ordinary course of business or professional practice. The term includes a
physician, registered nurse, licensed vocational nurse, licensed dietitian, physical therapist, and occupational therapist."
TEx. HEALTH & SAFETY CODE ANN. § 247.067(a) (Vemon2001).
Mr. Jon Weizenbaum - Page 6 (GA-0742)
SUMMARY
The Legislature authorizes assisted living facilities to provide
specific services: food, shelter, personal care services and the
administration of medication. In addition, the Legislature allows
home and community support services agencies and independent
health professionals to provide services within their scope of practice
to a resident of an assisted living facility at the facility. However, the
Legislature has not authorized the assisted living facilities themselves
to provide nursing services beyond personal care services or the
administration of medication. To the extent that the Department of
Aging and Disability Services' Rule 92.41(e)(1)(B) authorizes the
staff of an assisted living facility to provide residents with nursing
services beyond those authorized by the statute, it is contrary to the
express terms of the assisted living facility statute.
Very truly yours,
ANDREW WEBER
First Assistant Attorney General
JONATHAN K. FRELS
Deputy Attorney General for Legal Counsel
NANCY S. FULLER
Chair, Opinion Committee
Virginia K. Hoelscher
Assistant Attorney General, Opinion Committee