   OFFICE OF THE ATTORNEY GENERAL        STATE OF TEXAS
   JOHN     CORNYN




                                                  July 6, 1999



The Honorable Elliott Naishtat                            Opinion No. JC-0072
Chair, Committee on Human Services
Texas House of Representatives                            Re: Whether the Texas Board ofHuman Services
P.O. Box 2910                                             may adopt a rule that authorizes a personal-care
Austin, Texas 78768-2910                                  facility to provide “occasional nursing services” to
                                                          its residents (RQ-1170)


Dear Representative     Naishtat:

          A personal-care facility’ may assist its residents with their “personal needs or maintenance,”
administer medication to its residents, and generally supervise residents’ physical and mental well-
being. TEX. HEALTH & SAFETY CODE ANN. $247.002(3)(B), (4)(A), (B), (C) (Vernon 1992). The
Texas Board of Human Services (the “Board”), which is responsible for regulating personal-care
facilities, see id. $5 247.002(l), ,025, ,026 (Vernon 1992 & Supp. 1999), has adopted a rule that
authorizes the licensed nursing staff of a personal-care facility to provide “occasional nursing
services” to certain residents. Your predecessor in the chair asked whether the Board’s rule illegally
expands chapter 247 of the Health and Safety Code “by authorizing personal care facility staff
members to provide nursing services on behalf of the personal care facility that the personal
care facility is not otherwise authorized by law to provide.”            Letter from Honorable Harvey
Hildebran, Chair, Committee on Human Services, to Honorable Dan Morales, Attorney General 2
(July 20,199s) (on tile with Opinion Committee). We believe the rule is ultra vires to the extent it
permits a personal-care facility to provide services beyond the personal-care services enumerated
in section 247.002(4) of the Health and Safety Code.

         State law establishes various types of facilities to provide differing degrees of care depending
upon residents’ particular residential and health-care concerns. A convalescent or nursing home
established under chapter 242 of the Health and Safety Code, for example, may provide “minor
treatment under the direction and supervision of a physician           , or other services that meet some
need beyond the basic provision of food, shelter, and laundry.” TEX. HEALTH & SAFETY CODE ANN.
§ 242.002(6) (Vernon Supp. 1999), amended by Act ofMay 19,1997,75th Leg., R.S., ch. 693,s 2,
 1997 Tex. Gen. Laws 2315, 2328 (defining “institution”).          A continuing-care facility established
under chapter 246 of the Health and Safety Code may furnish “personal care services, nursing



          ‘Beginning September 1, 1999, the term “personal care facility” will be replaced in the statute by the term
“assisted living facility.” See Act of May 14, 1999, 76th Leg., R.S., S.B. 93, 5 1 (to be codified at TEX. HEALTH&
SAFETYCODEANN.~~.~~~).
The Honorable     Elliott Naishtat   - Page 2          (X-0072)




services, medical services, or other health-related services.”        See id. 5 246.002(3) (defining
“continuing care”). A special-care facility established under chapter 248 of the same code may
provide “a continuum of nursing or medical care or services” to terminally ill patients.           Id.
5 248.002(S) (Vernon 1992) (defining “special care facility”); see also id. 5 248.002(3), (4), (7)
(defining “medical care, ““nursing care,” and “services”). Because ofthe variety ofresidents’ needs,
no one type of facility can serve all types of residents. The issue your predecessor raised requires
us to place a personal-care facility within the spectrum of facilities available.

         The Personal Care Facility Licensing Act (the “Act”), TEX. HEALTH & SAFETY CODE ANN.
ch. 247 (Vernon 1992 & Supp. 1999), under which a personal-care facility must be licensed, see id.
3 247.021(a) (Vernon Supp. 1999), authorizes such a facility to “(A) fumish[]       food and shelter
to four or more persons who are unrelated to the proprietor       ; and (B) provide[] personal care
services.” Id. 5 247.002(3) (V emon 1992). Section 247.002(4) of the Health and Safety Code
defines the term “personal care services” narrowly:

                      “Personal care services” means:

                     (A) assistance with meals, dressing, movement, bathing or other
                 personal needs or maintenance;

                    (B) the administration of medication              by a person licensed to
                 administer medication or the assistance              with or supervision of
                 medication; or

                      (C) 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 a personal care facility or who needs
                 assistance to manage the person’s personal life, regardless ofwhether
                 a guardian has been appointed for the person.

Id. 5 247.002(4).’ The Board is required to adopt rules necessary to implement the Act and to
prescribe “minimum standards” to protect personal-care-facility  residents’ health and safety. See
id. fj 247.026. Among other things, the minimum standards must “clearly differentiate a personal
care facility from an institution required to be licensed under [Health and Safety Code] Chapter
242,” i.e., a convalescent or nursing home. Id. 6 247.026(b)(l) (Vernon Supp. 1999).




         ‘Recent legislation amending other provisions of chapter 247 of the Health and Safety Code does not alter the
statutory defmition of the term “personal care services.” See Act of May 14, 1999,76th Leg., R.S., S.B. 93, 9 1, sec.
247.002(5).  However, the 1999 amendments renumber section 247.002(4) of the Health and Safety Code as section
247.002(5). See id. The renumbering will be effective September 1, 1999. See id. 5 16.
The Honorable   Elliott Naishtat   - Page 3        (X-0072)




        The Board promulgated      a rule authorizing   a personal-care-facility   to provide “occasional
nursing services”:

                     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 personal
                care 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
                5 92.41(d)(2)(A) of this title . . . , enabling them to maintain their
                independence.    Residents may contract to have home health services
                delivered.

23 Tex. Reg. 7042 (1998) (to be codified as an amendment to 40 TEX. ADMIN. CODE 5 92.2(b)(2))
(emphasis added). Section 92.41(d)(2)(A), mentioned in the rule just quoted, prohibits a personal-
care facility from admitting or retaining as a resident “an individual requiring the services of facility
employees who are licensed nurses on a daily or regular basis,” but excludes from the prohibition
“[ilndividuals with a terminal condition or [who are] experiencing a short-term, acute episode.” Id.
at 7046 (to be codified as an amendment to 40 TEX. ADMIN. CODE 9 92,41(d)(2)(A)).           A “terminal
condition” is a “medical diagnosis, certified by a physician, of an illness which will result in death
in six months or less.” Id. at 7044 (codified as an amendment to section 92.3(28)). A “short-term
acute episode” is an “illness of less than [thirty] days duration.” Id. (codified as an amendment to
section 92.3(25)).

         We assume for the purposes of this opinion that the term “occasional nursing services” as
used in the Board’s rule includes activities requiring more nursing skills than do the personal-care
services listed in section 247.002(4) ofthe Health and Safety Code. Neither the Act nor the Board’s
rule defines the term. But related statutory definitions indicate that our assumption is correct. See
TEX. GOV’T CODE ANN. 5 311.023(4) (Vernon 1998) (stating that in construing statute court may
consider laws on same or similar subject). For example, the same 1989 legislation that adopted the
Act also defined the term “nursing care” for purposes of the Texas Special Care Facility Licensing
Act, TEX. HEALTH & SAFETYCODE ANN. ch. 248 (Vernon 1992 & Supp. 1999), to include functions
requiring more nursing skills than do the personal-care services listed in section 247.002(4):

                    “Nursing care” means services provided by nursing personnel          as
                prescribed by a physician, including services to:

                    (A)   promote and maintain health;

                    (B)   prevent illness and disability;
The Honorable   Elliott Naishtat    - Page 4      (X-0072)




                     (C)   manage   health care during acute and chronic      phases of
                illness;

                    (D) provide      guidance   and   counseling   of individuals   and
                families; and

                    (E) provide referrals to physicians, other health care providers,
                and community resources when appropriate.

Id. 3 248.003(4) (Vernon 1992); see Act of May 28, 1989, 71st Leg., R.S., ch. 1085, sec. 16,
5 1.02(4), 1989 Tex. Gen. Laws 4438,4446. Chapter 242 ofthe Health and Safety Code, pertaining
to convalescent and nursing homes, suggests that nursing services involve a comprehensive plan of
care for each resident. See TEX. HEALTH& SAFETYCODE ANN. $5 242.153(l), .154(b)(l) (Vernon
Supp. 1999) (describing duties of director and provider ofnursing services). Additionally, the State
licensing act for registered nurses defines the practice of nursing to include observing, assessing,
intervening, evaluating, rehabilitating, caring for, and counseling the sick. SeeTEx. REV. CIV. STAT.
ANN. art. 4518, 5 5 (Vernon 1999); see also id. art. 4528c, 5 l(c), (e) (defining “nursing” and
“vocational nursing”). Federal Medicare regulations list as “[slervices that qualify as skilled nursing
services” certain injections, intravenous or enteral feeding, “[ilnsertion and sterile irrigation and
replacement of catheters,” and “[tlreatment of extensive decubitus ulcers or other widespread skin
disorder,” among other things. See 42 C.F.R. 5 409.33(a) (1998). By contrast, the same regulation
lists as examples of personal-care services “[aldministration of routine oral medications, eye drops,
and ointments”; “[gleneral maintenance care in connection with a plaster cast”; and “[pleriodic
turning and positioning in bed,” among other things. See id. 5 409.33(c).

         In our opinion, the Act permits a personal-care facility to furnish only those personal-care
services listed in section 247.002(4) of the Health and Safety Code. See supra at 2 (quoting section
247.002(4)). The Act’s definition of the term “personal care services” is exclusive, not inclusive.
Cf: TEX. GOV’T CODE ANN. 5 311.005(13) (Vernon 1998) (defining “includes” and “including” as
terms of enlargement); BRYAN A. GARNER,A DICTIONARYOF MODERNLEGAL USAGE 287 (1987)
(stating that word “including” “should not be used to introduce an exhaustive list, for it implies that
the list is only partial”).   Accordingly, a personal-care facility may furnish to residents only
assistance “with meals, dressing, movement, bathing, or other personal needs or maintenance”;
administration ofmedication to a resident ifthe staffmember is “licensed to administer medication”
or supervision of a resident’s self-medication; and general supervision of a resident’s physical and
mental well-being.      TEX. HEALTH & SAFETY CODE ANN. 5 247.002(4) (Vernon 1992). We find
nothing in the statute that authorizes a personal-care facility to furnish nursing services, occasional
or otherwise, beyond what may be classified as a personal-care service under section 247.002(4).

        Moreover, while the Board has broad authority to adopt “rules necessary to implement” the
Act, id. 5 247.025, and minimum standards to protect residents’ health and safety, see id. 9 247.026,
the Board may not expand the nature of the services a personal-care facility may offer beyond the
personal-care services listed in section 247.002(4) of the Health and Safety Code. An administrative
The Honorable   Elliott Naishtat   - Page 5      (JC-0072)




agency may adopt a rule only if the rule is authorized by and is consistent with the agency’s
authority. See Railroad Comm ‘n v. Lone Star Gas Co., 844 S.W.2d 679,685 (Tex. 1992) (quoting
State Bd. ofIns. v. Deffebach, 63 1 S.W.2d 794,798 (Tex. App.-Austin 1982, writ ref d n.r.e.)); Tex.
Att’y Gen. Op. No. DM-292 (1994) at 2. “The determining factor in this . . decision[]          dealing
with the question ofwhether or not a particular administrative agency has exceeded its rule-making
powers is that the rule’s provisions must be in harmony with the general objectives of the Act
involved.” Gent Y. Oak CliffSuv. &Loan Ass ‘n, 432 S.W.2d 702,706 (Tex. 1968). To determine
whether a rule is “in harmony with” the adopting agency’s statutory authority, a court will consider
the agency’s express as well as implied powers. See Railroad Comm ‘n, 844 S.W.2d at 685; Gent,
432 S.W.2d at 706; Tex. Att’y Gen. Op. No. DM-292 (1994) at 2. To the extent the rule authorizes
a personal-care facility to offer nursing services beyond the personal-care services listed in section
247.002(4) ofthe Health and Safety Code, it is not in harmony with the Board’s statutory power, and
it is, therefore, ultra vires.

        Our opinion should not be read to restrict a personal-care facility’s ability to respond to
emergency medical situations. The manager of a personal-care facility may be trained in “basic
emergency first aid.” See 40 TEX.ADMIN.CODE § 92,4l(a)(l)(C)(vii)               (1998) (Texas Dep’t of
Human Servs., Personal Care Facilities) (requiring manager of a licensed facility to receive six hours
annually of continuing education in at least one specified area). Other staff members also may be
trained in emergency first aid. In addition, a personal-care facility is required to “stock and
maintain” appropriate first-aid supplies. See id. 5 92.41(f)(2); see also id. $92.41(f)(l) (prescribing
actions personal-care facility is to take in event of accident or injury requiring emergency medical,
dental, or nursing care).

         Thus, disregarding emergency situations, the nature of services a personal-care facility may
offer is limited regardless ofwhether the facility employs a professional or licensed vocational nurse.
In a setting other than a personal-care facility, a professional or licensed vocational nurse may
perform nursing services beyond those listed in section 247.002(4) of the Health and Safety Code.
See TEX. REV. Crv. STAT. ANN. art. 45 18,§ 5 (Vernon Supp. 1999) (defining “professional nursing”);
id. art. 4528c, 5 l(e) (Vernon Supp. 1999) (defining “vocational nursing” or “vocational nursing
services”). Incidentally, the Act does not require a personal-care facility to employ a nurse. Cf: TEX.
HEALTH&SAFETYCODEANN.§ 247.026(e),(f)(V                ernon Supp. 1999) (requiring Board of Human
Services to establish standards requiring personal-care-facility      employees to receive training in
geriatric care and making eligible for certification as medication aide certain personal-care-facility
employees).

         In comments submitted to this office, some have argued that so long as the level of services
a personal-care facility may offer are “clearly differentiatetd]” from those offered in an institution
licensed under chapter 242 of the Health and Safety Code (i.e., a convalescent or nursing home), the
Board is not precluded from adopting a rule authorizing personal-care-facility    staff to perform the
services. See Letter from Honorable Mike Moncrief, Texas State Senate, to Sarah .I. Shirley, Chair,
Opinion Committee, Office of the Attorney General 3 (Oct. 9, 1998) (on file with Opinion
Committee); Brief from Frances Hamermesh, Davis & Wilkerson, P.C., attached to Letter from
The Honorable     Elliott Naishtat    - Page 6          (JC-0072)




David Latimer, Vice President for Government Affairs, Texas Association of Homes and Services
for the Aging, to Sarah J. Shirley, Chair, Opinion Committee, Office of the Attorney General 4
(Sept. 11, 1998) (on file with Opinion Committee). While the Board, by its rules, may distinguish
between personal-care facilities based upon “the level of personal care provided,” among other
factors, see TEX. HEALTH & SAFETY CODE ANN. $ 247.026(c) (Vernon 1992), the Board may not
expand the definition of “personal-care services” to include nursing services beyond the scope of
personal-care services. See id. 3 247.002(4).

         We also disagree that the rule is authorized, as some suggest, by section 247.026(b)(2) offhe
Health and Safety Code. Section 247.026(b)(2) requires the Board’s minimum standards to “ensure
quality care and protection of the residents’ health and safety without excessive cost.” Id.
5 247.026(b)(2) (VemonSupp.       1999). Evenifwe assume thatpermittingpersonal-care-facility staff
members to perform “occasional nursing services” in the circumstances described in the Board’s
recent rule will save residents money-and      this assertion is contested3-mitigating costs is only one
factor the Board may consider in adopting its minimum standards. Furthermore, the Act does not
permit the Board to expand, for any reason, the services a personal-care facility may offer facility
residents beyond those listed in section 247.002(4).

         A personal-care facility, as its name suggests, may offer only personal-care services. When
a resident cannot obtain the appropriate level ofcare from a personal-care facility, the resident’s own
health and safety require that the resident either contract with a qualified provider to have the
services delivered or relocate to a facility properly and specifically authorized to provide nursing
services commensurate with the resident’s needs. See 40 TEX. ADMIN. CODE § 92.41(f)(3) (1998)
(Texas Department of Human Servs., Personal Care Facilities).




         ‘One brief submitted to this ofice suggests, among other things, that a hospice may in fact be the most cost-
effective alternative for a terminally ill resident. See Letter from Anita Bradberry, Executive Director, Texas
Association for Home Care, to Honorable Dan Morales, Texas Attorney General 2 (Sept. 28,1998) (on tile with Opinion
Committee).
The Honorable   Elliott Naishtat   - Page 7     (JC-0072)




                                        SUMMARY

                    To the extent the Texas Board of Human Services has adopted a
                rule (40 TEX.ADMIN.CODE $ 92.2(b)(2) (1998)) that authorizes a
                personal-care facility to furnish nursing services beyond assisting
                with personal needs or maintenance, administering medications, or
                generally supervising residents’ physical and mental well-being, the
                rule is ultra vires.




                                              Attorney General of Texas

ANDY TAYLOR
First Assistant Attorney General

CLARK KENT ERVIN
Deputy Attorney General - General Counsel

ELIZABETH ROBINSON
Chair, Opinion Committee

Prepared by Kymberly K. Oltrogge
Assistant Attorney General
