Texas Attorney General Opinion: GA-0403 Page: 4 of 9
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Commissioner James R. Hine - Page 4 (GA-0403)
TEX. HEALTH & SAFETY CODE ANN. 242.002(10)(A) (Vernon 2001), as amended by Act of May
28, 1997, 75th Leg., R.S., ch. 1159, 1.02, sec. 242.002(10), 1997 Tex. Gen. Laws 4363, 4364.
Like personal care service providers, the home health services providers at issue in the letter opinion
must be licensed under Health and Safety Code chapter 142. See TEX. HEALTH & SAFETY CODE
ANN. 142.002(a) (Vernon Supp. 2005); see also Tex. Att'y Gen. LO-90-85, at 1. Assuming that
a "retirement center" is a residential facility that "furnishes . . . food and shelter to four or
more persons who are unrelated to the proprietor," TEX. HEALTH & SAFETY CODE ANN.
242.002(10)(A)(i) (Vernon 2001), as amended by Act of May 28, 1997, 75th Leg., R.S., ch. 1159,
1.02, sec. 242.002(10), 1997 Tex. Gen. Laws 4363, 4364, the letter opinion notes that determining
whether a retirement center is an institution that must be licensed depends upon whether providing
health care "through the 'cooperation' of a licensed home health agency" is providing minor
treatment or other services beyond food, shelter, and laundry for purposes of the definition of
"institution." Tex. Att'y Gen. LO-90-85, at 4-5. While not expressly deciding one way or the other,
the opinion states that "[w]e do not think the legislature ... contemplated that a residential facility
could escape licensure and regulation [as an institution] merely by contracting or otherwise arranging
for provision of additional services, where direct provision 'in cooperation with' a home health
agency of such services would have brought the facility clearly within the ambit of chapter 242."
Id. at 6. Letter Opinion 90-85 suggests that institutions, or, by analogy, assisted living facilities, may
not attempt to avoid statutory licensure requirements on mere technicalities, although it does not
directly respond to the issue you raise regarding an establishment that requires residents to contract
with a particular personal care services provider specified by the proprietor.
The Department has authority to interpret chapter 247. The Department is required to protect
assisted living facility residents by "adopting rules relating to quality of care and quality of life,"
TEX. HEALTH & SAFETY CODE ANN. 247.0011 (b)(1) (Vernon 2001); by regulating assisted living
facilities' operation, see id. 247.001 l(b)(4); and to enforce chapter 247's licensing requirements,
see, e.g., id. 247.041(a), .042(a) (Vernon Supp. 2005) (authorizing the Department to deny,
suspend, or revoke a license and to suspend or close a facility in an emergency); id. 247.043(a),
.044(a) (Vernon 2001) (authorizing the Department to investigate allegations of abuse, exploitation,
or neglect of a resident and to petition a district court for injunctive relief against an entity violating
the licensing requirements); id. 247.0451 (a) (Vernon Supp. 2005) (authorizing the Department to
assess an administrative penalty). Given its authority, the Department's construction of the statutory
definition of "assisted living facility" to encompass establishments that "provide[] personal care
services," TEX. HEALTH & SAFETY CODE ANN. 247.002(5) (Vernon Supp. 2005) (defining "assisted
living facility"), by requiring residents to purchase such services from a provider specified by the
proprietor is entitled to "serious consideration" from a court if the construction does not contradict
the statute's plain language and is reasonable. Tarrant Appraisal Dist. v. Moore, 845 S.W.2d 820,
823 (Tex. 1993); see also TEX. GOV'T CODE ANN. 311.023(6) (Vernon 2005) (stating that a
court construing a statute may consider "among other matters the . . . administrative
construction of the statute").
The Department's interpretation is consistent with the statute's plain language. Section
247.002(1) defines "assisted living facility" to mean an establishment that "provides personal careservices." TEX. HEALTH & SAFETY CODE ANN. 247.002(1)(B) (Vernon Supp. 2005). The term
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Texas. Attorney-General's Office. Texas Attorney General Opinion: GA-0403, text, February 23, 2006; (https://texashistory.unt.edu/ark:/67531/metapth275299/m1/4/?rotate=0: accessed July 17, 2024), University of North Texas Libraries, The Portal to Texas History, https://texashistory.unt.edu; crediting UNT Libraries Government Documents Department.