Opinion issued April 21, 2015




                                     In The

                              Court of Appeals
                                     For The

                          First District of Texas
                            ————————————
                              NO. 01-14-00626-CV
                           ———————————
  SHILOH TREATMENT CENTER, INC., SHILOH II, LLC, BEHAVIOR
   TRAINING RESEARCH, INC., AND CLAY DEAN HILL, Appellants
                                        V.
                         DESTIN ED WARD, Appellee


                    On Appeal from the 23rd District Court
                          Brazoria County, Texas
                         Trial Court Case No. 68156


                                  OPINION

      This is an interlocutory appeal from the denial of a motion to dismiss for

failure to serve an expert report under the Texas Medical Liability Act. See Act of

May 12, 2005, 79th Leg., R.S., ch. 635, § 1, 2005 Tex. Gen. Laws 1590 (amended

2013) (current version at TEX. CIV. PRAC. & REM. CODE ANN. § 74.351 (West
Supp. 2014)). We are asked: (1) whether a residential treatment center for young

people with intellectual and mental disabilities has demonstrated itself to be a

“health care provider”; (2) whether an alleged failure of that facility to properly

supervise a resident with a mental disability is a “health care liability claim”; and

(3) when may a defendant amend its answer to include these issues. We conclude

that the answer to the first question is “no” and do not reach the second and third

issues. Accordingly, we affirm.

                                     Background

      Shiloh Treatment Center Inc. (“Shiloh Treatment”), Shiloh II, LLC (“Shiloh

II”), Behavior Training Research, Inc. (“Behavior Research”), and Clay Dean Hill

(collectively, “Shiloh”), along with several co-defendants who did not join this

appeal, ran a group of facilities for young people with mental disabilities in

Manvel, Texas. One of the residents, Destin Ed Ward, walked off the campus and

wandered around the Manvel area for several hours without any supervision. A car

hit Ward and severely injured him.

      Ward filed this lawsuit against Shiloh and a number of other defendants.

According to his petition, “[t]he residential facility where Destin Ward was housed

failed to have an adequate alarm to alert . . . his immediate staff. Furthermore, the

staff inadequately supervised Destin Ward allowing him to leave and wander the

neighborhood and ultimately be run over and severely injured.” All defendants



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timely answered. Ten months later, defendants amended their answer, asserting

that Ward’s claim was a health care liability claim under the TMLA.

      Under the version of the TMLA in effect at that time:

      (a) In a health care liability claim, a claimant shall, not later than the
          120th day after the date the original petition was filed, serve on
          each party or the party’s attorney one or more expert reports . . . .

      (b) If . . . an expert report has not been served within the period
         specified by Subsection (a), the court, on the motion of the affected
         physician or health care provider, shall . . . enter an order that:

              (1) awards to the affected physician or health care provider
                 reasonable attorney’s fees and costs of court incurred by the
                 physician or health care provider; and

              (2) dismisses the claim with respect to the physician or health
                 care provider, with prejudice to the refiling of the claim.

Act of May 12, 2005, 79th Leg., R.S., ch. 635, § 1, 2005 Tex. Gen. Laws 1590

(amended 2013). Ward had not served any expert report. Accordingly, defendants

also filed a motion to dismiss.

      Ward responded that his claim was not a health care liability claim. In

support of this argument, he filed his Second Amended Petition, which states,

“Defendants     do   not   provide    medical     care   and   treatment   under   any

condition. . . . These are boarding and schooling services.” It also averred, “This is

specifically not a healthcare liability claim.”

      Ward also filed a response to the motion to dismiss and attached evidence

that Shiloh did not provide health care. First, he attached Shiloh Treatment’s


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Articles of Incorporation, which state that it provides “community homes and

supervision,” and Behavioral Training Research’s Articles of Incorporation, which

state that it “operate[s] a private school for development of the disabled” and

“carr[ies] on instruction and research in the field of autism.” Second, he attached

an affidavit from the father of a young person with autism who was transferred

from Pasadena I.S.D. to Shiloh Treatment “in lieu of attending a school.” Third, he

attached a “Health and Education Passport” listing Shiloh Treatment as Ward’s

school. Fourth, he attached depositions from administrators explaining some of the

campus’s internal operations.

      Defendants produced several pieces of evidence in rebuttal. First, they

showed that Shiloh Treatment was a licensed “residential treatment center.”

Second, they produced medical documentation showing that, before his accident,

Ward was taking several psychiatric medications and receiving therapy at

Daystar—a defendant who did not join this appeal—from a licensed clinical social

worker to treat “aggressive behavior,” “suicidal ideation,” “psychotic symptoms,”

“mood stability,” and truancy.

      The trial court denied defendants’ motion to dismiss. Shiloh timely

appealed.




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                              Applicability of TMLA

      This case asks us to determine whether Ward asserted a health care liability

claim against Shiloh. There are three elements of a health care liability claim:

      (1) a physician or health care provider must be a defendant; (2) the
      claim or claims at issue must concern treatment, lack of treatment, or
      a departure from accepted standards of medical care, or health care, or
      safety or professional or administrative services directly related to
      health care; and (3) the defendant’s act or omission complained of
      must proximately cause the injury to the claimant.

Bioderm Skin Care, LLC v. Sok, 426 S.W.3d 753, 758 (Tex. 2014). “No one

element, occurring independent of the other two, will recast a claim into a health

care liability claim.” Id. Ward contends that neither the first nor the second element

apply to his claims. For the reasons stated below, we agree that Shiloh did not

demonstrate—on this appellate record—that it was a health care provider.

A.    Standard of review

      Generally, we review a trial court’s order granting or denying a motion to

dismiss under section 74.351 of the Texas Civil Practice and Remedies Code for an

abuse of discretion. Am. Transitional Care Ctrs. of Tex., Inc. v. Palacios, 46

S.W.3d 873, 875 (Tex. 2001). But whether a petition asserts a health care liability

claim under the statute is a question of law reviewed de novo. See Tex. W. Oaks

Hosp., LP v. Williams, 371 S.W.3d 171, 177 (Tex. 2012); Heriberto Sedeno, P.A.

v. Mijares, 333 S.W.3d 815, 818 (Tex. App.—Houston [1st Dist.] 2010, no pet.).

“[W]hen making that determination courts should consider the entire court record,


                                          5
including the pleadings, motions and responses, and relevant evidence properly

admitted.” Loaisiga v. Cerda, 379 S.W.3d 248, 258 (Tex. 2012).

B.    Shiloh Treatment is not a health care provider

      Health care liability claims can only be asserted against physicians or health

care providers. TEX. CIV. PRAC. & REM. CODE ANN. § 74.001(a)(13) (West Supp.

2014). “‘Health care provider’ means any person, partnership, professional

association, corporation, facility, or institution duly licensed, certified, registered,

or chartered by the State of Texas to provide health care.” Id. § 74.001(a)(12)(A).

“‘Health care’ means any act or treatment performed or furnished, or that should

have been performed or furnished, by any health care provider for, to, or on behalf

of a patient during the patient’s medical care, treatment, or confinement.” Id.

§ 74.001(a)(10). The burden falls on the party seeking dismissal to show that it is a

health care provider. Obstetrical & Gynecological Assocs., P.A. v. Hardin, No. 01-

13-00236-CV, 2013 WL 6047595, at *2 (Tex. App.—Houston [1st Dist.] Nov. 14,

2013, no pet.) (mem. op.).

      The Child-Care Licensing Division of the Texas Department of Family and

Protective Services licensed Shiloh Treatment as a residential treatment center,

which is a type of “general residential operation.” A general residential operation is

“a child-care facility that provides care for more than 12 children for 24 hours a

day.” TEX. HUM. RES. CODE ANN. § 42.002(4) (West 2011). Shiloh Treatment’s



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permit specifically lists: “Type[s] of Treatment Services[:] Emotional Disorders[,]

Mental Retardation[, and] Pervasive Developmental Disorders.”

      Shiloh Treatment argues that because its child-care license includes

treatment services, it was “licensed . . . to provide health care.” TEX. CIV. PRAC. &

REM. CODE ANN. § 74.001(a)(12)(A). We disagree. Shiloh provided no evidence of

what treatment services it provided. According to the Department of Family

Services, treatment services are “a specialized type of child-care services designed

to treat and/or support children.” 40 TEX. ADMIN. CODE § 748.61(2) (West 2015)

(emphasis added). “Child-care services [means] services that meet a child’s basic

need for shelter, nutrition, clothing, nurture, socialization, and interpersonal skills,

care for personal health and hygiene, supervision, education, and service

planning.” Id. § 748.61(1). This suggests that these services are general in nature

and not medical services.

      Shiloh is not licensed to be anything other than a residential treatment

center. For example, mental hospitals licensed under Chapter 577 of the Texas

Health and Safety Code are health care providers. TEX. CIV. PRAC. & REM. CODE

ANN. § 74.001(a)(11), (12)(A), (16). But Shiloh Treatment did not have this

license and thus was not authorized to be a mental hospital. See TEX. HEALTH &

SAFETY CODE ANN. § 577.001 (West 2009). Similarly, “intermediate care




                                           7
facilit[ies] for the mentally retarded” 1 licensed under Chapter 252 of the Texas

Health and Safety Code are also health care providers under the TMLA. TEX. CIV.

PRAC. & REM. CODE ANN. § 74.001(a)(11), (12)(A), (18). That chapter governs the

licensing of “a home or an establishment that: (A) furnishes food, shelter, and

treatment or services . . . ; (B) is primarily for the diagnosis, treatment, or

rehabilitation of persons with mental retardation or related conditions; and (C)

provides . . . continuous evaluation, planning, 24-hour supervision, coordination,

and integration of health or rehabilitative services . . . .” TEX. HEALTH & SAFETY

CODE ANN. § 252.002(4) (West 2009) (emphasis added). But Shiloh did not have

this license and was not authorized to “establish, conduct, or maintain a facility”

that meets this definition. See id. § 252.031 (West 2009).

      In addition, the record contains no evidence that Shiloh Treatment actually

provided any medical care or treatment to Ward or any other person. There is no

indication of how many members of Shiloh’s staff, if any, were medical personnel.

There is no evidence regarding the extent that medical personnel controlled or

influenced any child-care services rendered to Ward. There is no medical

documentation from Shiloh Treatment in the record. The entire record contains

only one medical record: a three-page treatment summary of unknown provenance


1
      We recognize that the proper term is “people with intellectual disabilities.” See
      TEX. GOV'T CODE ANN. § 325.0123 (West 2013).


                                          8
indicating that Ward saw a licensed clinical social worker at Daystar. But the

record neither demonstrates that Daystar and Shiloh Treatment are the same entity

nor describes the relationship between the two entities. Moreover, the record does

not reveal who employed this social worker, what his relationship was to Daystar

or Shiloh, or how Ward became the social worker’s client.

      The limited evidence from the record suggests that Shiloh Treatment was

essentially a school for young people with mental disabilities. There is evidence

that Shiloh Treatment held itself out to be a school and received educational

placements from the local school district. Foster-care documentation lists Shiloh

Treatment as Ward’s school. The three-page medical record also lists Shiloh

Treatment as Ward’s school.

      At oral argument, Shiloh contended that paragraphs 11, 12, and 15 of the

petition demonstrate that Shiloh Treatment was a health care provider. Paragraph

11 indicates that Ward was placed at the Manvel facility “for boarding and

schooling” and that he had been “previously treated elsewhere for certain

emotional disorders.” Paragraph 12 alleges that Shiloh and the co-defendants were

“aware of these needs and promised to provide appropriate residential and

educational supervision.” Finally, Paragraph 15 asserts that “the boarding and

schooling in actuality was poorly managed.” These allegations concern boarding

and schooling, not medical treatment. They provide no evidence that Shiloh was



                                        9
licensed to provide medical treatment and no evidence that it actually provided any

medical treatment.

      Shiloh also relies on the regulatory definition of residential treatment center:

“A general residential operation for 13 or more children or young adults that

exclusively provides treatment services for children with emotional disorders.” 40

TEX. ADMIN. CODE § 748.43(40) (West 2015). But this definition says nothing

about the kind or degree of treatment services rendered or the severity of emotional

disorders treated.

      Although Shiloh Treatment was authorized to provide treatment services for

emotional disorders, this alone cannot be enough to make it a health care provider.

Meriam-Webster’s Collegiate Dictionary defines treatment as “the act . . . of

treating someone.” MERIAM-WEBSTER’S COLLEGIATE DICTIONARY 1333 (11th ed.,

2003). The verb “to treat” means either “to care for or deal with medically or

surgically” or, more broadly, “to act upon with some agent, [especially] to improve

or alter.” Id. A pedicurist may be said to “treat” a callous; a yoga instructor may be

said to “treat” anxiety; a teacher may be said to “treat” a learning difference. But

none are automatically health care providers rendering medical treatment to

patients. See generally Skloss v. Perez, No. 01-08-00484-CV, 2009 WL 40438, at

*4 (Tex. App.—Houston [1st Dist.] Jan. 8, 2009, no pet.) (mem. op.) (licensed




                                         10
professional counselor was health care provider because she was licensed to

provide medical treatment to patients).

      Schools, after-school programs, and day cares must frequently treat and

support students with various degrees of emotional- and mental-health issues in the

course of their licensed child-care activity. At oral argument, Shiloh conceded that

none of these are health care providers.

      Given the sparse record evidence, we cannot conclude that Shiloh Treatment

was “duly licensed, certified, registered, or chartered by the State of Texas to

provide health care.” TEX. CIV. PRAC. & REM. CODE ANN. § 74.001(a)(12)(A).

Accordingly, it is not a health care provider.

C.    Shiloh II, Behavior Research and Clay Hill are not health care
      providers

      Health care providers also include “(i) an officer, director, shareholder,

member, partner, manager, owner, or affiliate of a health care provider or

physician; and (ii) an employee, independent contractor, or agent of a health care

provider or physician acting in the course and scope of the employment or

contractual relationship.” TEX. CIV. PRAC. & REM. CODE ANN. § 74.001(a)(12)(B).

      Clay Hill contends that he is a health care provider because he is the

President of Shiloh Treatment. Shiloh II and Behavior Research contend that they

are health care providers because they are affiliates of Shiloh Treatment.




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Regardless, Shiloh Treatment is not a health care provider, and thus neither are its

officers or affiliates.

                                    Conclusion

       Because Shiloh has not shown that Ward asserted a claim against a health

care provider, we conclude that Ward has not asserted a health care liability claim.

We affirm the order of the trial court and remand for further proceedings consistent

with this opinion.




                                             Harvey Brown
                                             Justice

Panel consists of Chief Justice Radack and Justices Brown and Lloyd.




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