                        August 31, 1990



Robert Bernstein, M.D.            Opinion No. JM-1214
Commissioner of Health
Texas Department of Health        Re: Whether the Texas Depart-
1100 West 49th Street             ment of Health    is required
Austin, Texas 78756-3199          to inspect and license as a
                                  personal care home a boarding
                                  facility registered    by the
                                  Department of Mental    Health
                                  and Mental Retardation,    and
                                  related questions    (RQ-1974)


Dear Dr. Bernstein:

      YOU ask three questions       about the role of       the
Department   of Health    in regard     to "boarding     homes"
registered under article 5547-206,      V.T.C.S.   Your first
question is whether boarding homes registered under article
5547-206,   V.T.C.S.,  are exempt    from regulation    by the
Department of Health.1     In your letter you state that
article 5547-206, V.T.C.S., gives the Department of Mental
Health and Mental Retardation authority to register boarding
homes.    In fact, article    5547-206 places the duty to
register boarding homes on local mental health and mental
retardation authorities.    Article   5547-206,  § 6.03(a) (4),
V.T.C.S.   Boarding homes operated by the Department         of
Mental Health and Mental Retardation are exempt from those
registration requirements.    Id. § 6.02.     We will assume,
therefore, that your questiris        whether boarding    homes
registered with local mental health and mental     retardation
authorities pursuant   to article 5547-206 are within       the



     1. We assume from your letter that the boarding   homes
in question fall within the scope of section 242.002 of the
Health and Safety Code, which describes    certain types of
facilities that are subject to licensing by the Department
of Health.




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Dr. Robert Bernstein - Page 2 (JM-1214)




scope of section 242.003(a)(6)   of the Health and Safety
Code, which exempts specified    types of facilities from
certain Health Department regulations.

      The exemption set out in section 242.003(a)(6)            applies
to:

            a facility that:

            (A)  primarily    engages     in   training,
        habilitation, rehabilitation,    or education of
        clients or residents;

            (B) is operated under the jurisdiction   of
            state   or   federal    agency,   including
         the . . . Texas Department   of Mental Health
         and Mental Retardation . . . and

            (C) is certified   through   inspection  or
         evaluation   as    meeting    the    standards
         established by the state or federal agency.

     Section  6.03(a) of article    5547-206 sets out the
obligations of local mental health and mental   retardation
authorities in regard to boarding homes:

            Each local    mental health      or        mental
         retardation authority shall:

            (1) adopt guidelines    relating      to      the
         registration of boarding homes;

            (2)   submit   the  guidelines to   the
        [Department of Mental Health and     Mental
        Retardation]   for approval as provided  by
        Section 6.04 of this article;

            (3) adopt local standards for personal and
         financial services:

            (4) register boarding homes as required by
         this article; and

           (5) visit and inspect each      registered
        boarding home to which the authority refers a
        patient or client at least annually to ensure
        that the home has been inspected, is in good
        standing with the local health and safety
        authorities, and is providing   the personal




                               P. 6422
    Dr. Robert Bernstein - Page 3 (JM-1214)




            and financial services that are     appropriate
            for the residents' needs.

         Sections 6.04 and 6.05 of article 5547-206 set out the
    relationship between the Department   of Mental Health   and
    Mental Retardation and registered boarding homes.    Section
    6.04 provides:

                (a) Each local mental health    or mental
            retardation    authority   shall  submit    the
            guidelines adopted under Subsection (a)(l) of
            Section   6.03    of   this article   to    the
            [Department of Mental Health and         Mental
            Retardation] for approval.

               (b) The Department    shall    approve   the
            guidelines if the guidelines:

                (1) require annual inspections    of each
            registered   boarding  home  to    which  the
            authority   refers a patient or client as
            provided   by Section   6.03(a)(5)   of  this
            article:

                (2) require each registered boarding home
            to submit to the required annual inspection;
            and

               (3) require each registered boarding   home
            to comply with all applicable local health,
            sanitation, fire, and safety requirements.

    Section 6.05 provides:

            The [Department of Mental Health and Mental
            Retardation] may withhold funds from a local
            mental health or mental retardation authority
            if the authority  refers patients or clients
            to a boarding home that is not registered  by
            the authority.

         To fall within the scope of the exemption set out in
    section 242.003(a)(6)  of the Health and Safety Code, a
    facility must be operated under the jurisdiction of a state
    agency. Health    and Safety Code 5 242.003(a)(6)(B).    The
    relationship   between registered boarding homes and the
    Department of Mental Health and Mental Retardation is so
    attenuated that it is doubtful that registered      boarding
    homes could be considered to be under the jurisdiction    of
r   the Department   of Mental Health and Mental Retardation.




                                   p. 6423
Dr. Robert Bernstein - Page 4 (JM-1214)




Even if registered boarding homes could be considered to be
under the jurisdiction   of the Department   of Mental Health
and Mental Retardation,     it    '   clear that    registered
boarding homes do not meet tiz requirement         of section
242.003(a)(6)(C) that they be "certified through    inspection
or evaluation as meeting the standards established by" the
Department of Mental Health and Mental Retardation.     Article
5547-206 imposes no requirement     that boarding  homes meet
standards set by the Department of Mental Health and Mental
Retardation.   Rather, the department   is to approve a u
authoritv's   auidelines  if the guidelines     require    that
boarding homes be inspected by the local authority and if
the guidelines require the boarding homes to comply with all
applicable   local health,   sanitation,   fire, and     safety
requirements.   We conclude, therefore, that the fact that a
facility   is required to     be registered under       article
5547-206, V.T.C.S., does not by itself bring the facility
within the scope of the exemption        set out in section
242.003(a)(6) of the Health and Safety Code.

     Your second and third      questions  do not       contain
sufficient information for us to provide an answer.

                        SUMMARY

             The fact that a facility is required  to
        be registered with a local mental health  and
        mental retardation authority under 5547-206,
        V.T.C.S.,  does not by itself bring       the
        facility within the scope of the exemption
        set out in section 242.003(a)(6)      of the
        Health and Safety Code.

                                    Very truly yo

                                  L-l   A      l!btitk
                                    JIM     MATTOX
                                    Attorney General of Texas

WARY KELLER
First Assistant Attorney General

LOU MCCREARY
Executive Assistant Attorney General

JUDGE ZOLLIE STEAKLEY
Special Assistant Attorney General




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     Dr. Robert Bernstein - Page 5 (JM-1214)



,-

     RKNEA HICKS
     Special Assistant Attorney General

     RICK GILPIN
     Chairman, Opinion Committee

     Prepared by Sarah Woelk
     Assistant Attorney General




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