JIM MATTOX Attorney General

Supreme Court Bullding P.0. BOX12548 AM,,“, TX. 78711.2548 51214752501 Telex 910/874-1387 Telecopier 5121475-0288

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An EqualOpportunity/ Affirmative Action Employer 

# The Attorney Gendal of Texas

January 11, 1984

Mr. Vernon M. Arrell Commissioner Texas RehabilitationCommission 118 E. RiversideDrive Austin, Texas 78704

Dear **Mr.** Arrell: Opinion No. ~~-124

Re: Jurisdiction of the Texas RehabilitationConxaisslon with regard to residents of certain facilities

You ask the following questions relating to certain facilities that are aubject,to the licensing requirementsor exemptionsprovided by article 4442~.V.T.C.S.:

1. If a facility is providing residential services to residents, some ,ofwhom are clients currently receiving services from the Texas RehabilitationCommission,but others of whom are residents privately placed, or residents placed into the facilityby a state agency other than the Texas Rehabilitation Commission, does the,Texas Rehabilitation Commission’s jurisdiction apply only to those clients residing in the facility currently receiving services from Texas Rehabilitation Commission or is our jurisdiction applicable to all residents in the facility?

2. If the certifying state agency has jurisdiction only over those clients in the facility currently receiving services from the agency,which stateagency, if any, is responsible for enforcing standards and for protecting the health, safety, and welfare of those residents residing in the facility but not receiving 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. 525Mr. 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 Coaaaissionon Alcoholism, the Texas Department of Corrections,and theVeterans' 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 federalgovernmentalagency. .'~
V.T.C.,S.

arti 4442~. §2(a)(6).

You advise us that the Texas Rehabilitation Colmaission [hereinafterTRC] contractswith 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 facilitiesand certify .them:as meeting standards for varying serviceswhich TRC thenpurahasas from the facilities for its clients. We understand that the services that the TRC purchases from the facilities Mayonot always be the type of care utilized by residents of the ~facilitiesplaced there by.other agencies or by privatepersons., ':,a

, Depending on ,factsand circumstances that also are varied, the facilities~

kertified.by the.TRC for its varying services may or may not be licensedby,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,eitherminor treatmentunder 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~ofMental 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,~ftsauthority extends only to its,clients, which state agency+ .if any,,is responsible for enforcing standards and ,proteeting..thewelfare of,,the 'residents'who do not receive its services.

It is our~opinion that~**the** TRC is responsible for supervisionof clients,that,it ,p~aees~~in~~residentlal~ facilities following its certif~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 individualswho 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 "operatedwithin 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 facilitywith 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 responsibility for residents who are not the TRC's clients. In the case of any facility licensedunder article 4442~, the Department of Health is responsible for enforcing its licensing standards and supervising the safety andwelfare 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 purchasedby the commission. The certificationof facilitiesand purchase of services for personsby the Rehabilitation Commission does not exempt a facility from licensure by the Texas Health Department under article 4442~ or alter the responsibilityof any agency to enforce standards and protect the health, safety,andwelfare of the residents of the facility.

JIM MATTOX AttorneyGeneral of Texas

p. 527Mr. Vernon M. Arrell - Page 4 (m-124)

TOM GREEN FirstAssistantAttorney General

DAVID R. RICRARDS ExecutiveAssistantAttorney General
Preparedby Colin Carl AssistantAttorney General

APPROVED: OPINION COMMITTEE

.RickGilpin. Chairman Colin Carl SusanGarrison JimMoellinger Nancy Sutton

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