                                 The Attorney Gendal              of Texas
                                                   January 11, 1984
JIM MATTOX
Attorney General


Supreme Court Bullding          Mr. Vernon M. Arrell                   Opinion No. ~~-124
P. 0. BOX 12548                 Commissioner
AM,,“, TX. 78711.2548           Texas Rehabilitation Commission        Re: Jurisdiction of the Texas
51214752501
Telex 910/874-1387
                                118 E. Riverside Drive                 Rehabilitation Conxaisslonwith
Telecopier 5121475-0288         Austin, Texas   78704                  regard to residents of certain
                                                                       facilities
 714 Jackson, Suite 700’
                                Dear Mr. Arrell:
 Dallas, TX. 7520215W
 2w742aw4
                                     You ask the following questions relating to certain facilities
                                that are aubject,to the licensing requirements or exemptions provided
 4824 Alberta Ave.. Suite 160   by article 4442~. V.T.C.S.:
 El Paso, TX. 798052793
 9151533.3484
                                            1. If a facility is providing residential
                                         services to residents, some ,of whom are clients
  1001 Texas, Suite 700                  currently receiving services from the Texas
/4uston,   TX. 77002-31 tl               Rehabilitation Commission, but others of whom are
     12255888                            residents privately placed, or residents placed
                                         into the facility by a state agency other than the
 SW Broadway, Suite 312
                                         Texas Rehabilitation Commission, does the, Texas
 Lubbock, TX. 79401-3479                 Rehabilitation Commission’s jurisdiction apply
 8061747.5238                            only to those clients residing in the facility
                                         currently    receiving   services    from    Texas
                                         Rehabilitation Commission or is our jurisdiction
 4309 N. Tenth, Suite B
 McAllen, TX. 78501-1685                 applicable to all residents in the facility?
 5121682.4547
                                             2. If    the   certifying state agency      has
                                          jurisdiction only over those clients in the
 200 htahl Plaza, suite 400
 San Antonlo, TX. 782052797
                                          facility currently receiving services from the
 512/225-4191                             agency, which state agency, if any, is responsible
                                          for enforcing standards and for protecting the
                                          health, safety, and welfare of those residents
 An Equal Opportunity/                    residing in the facility but not receiving
 Affirmative Action Employer
                                          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. 525
Mr. 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 Coaaaission on Alcoholism, the
          Texas Department of Corrections, and the Veterans'
          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,ishedby
          the state or a federal governmental agency.   .'~

V.T.C.,S.arti 4442~. §2(a)(6).

     You advise us     that the Texas Rehabilitation Colmaission
[hereinafter TRC] contracts with 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 facilities and certify .them:asmeeting standards for
varying services which TRC then purahasas from the facilities for its
clients. We understand that the services that the TRC purchases from
the facilities Mayo not always be the type of care utilized by
residents of the ~facilities placed there by.other agencies or by
private persons.,   ':,a
                     ,
     Depending on ,facts and circumstances that also are varied, the
facilities~kertified.by the.TRC for its varying services may or may
not be licensed by,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,either minor treatment under 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 ~of Mental Health and Mental
Retardation and the i.Texas.Commission on Alcoholism. -See Attorney
General Opinian JM-12~(1983).

     You inquire whether the TRC. is~~~responsibleonly for persons
residing in a facility who are its clients receiving rehabilitation
services, and, if,~fts authority extends only to its, clients, which
state agency+ .if any,, is responsible for enforcing standards and
,proteeting..the welfare of,,the 'residents' who do not receive its
services.

     It is our~opinion that~the TRC is responsible for supervision of
clients,that,it ,p~aees~~in~~residentlal~
                                      facilities following its certi-   -,
f~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 individuals who 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 "operated within
    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 facility with 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 responsi-
    bility for residents who are not the TRC's clients. In the case of
    any facility licensed under article 4442~ , the Department of Health is
    responsible for enforcing its licensing standards and supervising the
    safety and welfare 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
              purchased by the commission. The certification of
              facilities and purchase of services for persons by
              the Rehabilitation Commission does not exempt a
              facility from licensure by the Texas Health
              Department under article 4442~ or alter the
              responsibility of any agency to enforce standards
              and protect the health, safety, and welfare of the
              residents of the facility.




                                           JIM     MATTOX
                                           Attorney General of Texas




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




TOM GREEN
First Assistant Attorney General

DAVID R. RICRARDS
Executive Assistant Attorney General

Prepared by Colin Carl
Assistant Attorney General

APPROVED:
OPINION COMMITTEE

.Rick Gilpin. Chairman
Colin Carl
Susan Garrison
Jim Moellinger
Nancy Sutton




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