Texas Attorney General Opinion: GA-0742 Page: 4 of 6
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Mr. Jon Weizenbaum - Page 4
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 [assisted
living] 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
92.41(d)(2)(A) of this title ..., enabling them to maintain their
independence....
Id. at 3 (citing 23 Tex. Reg. 7042 (1998)).5 Finding "nothing in the statute that authorizes [an
assisted living] facility to furnish nursing services, occasional or otherwise," this office concluded
that the rule was "ultra vires" to the extent it permitted an assisted living facility to provide services
beyond those described as personal care services in section 247.002 of the Health and Safety Code.
Id. at 1, 4. Aside from amending the definition of assisted living facility to allow for the provision
or supervision of the administration of medication, the statutorily-enumerated services that an
assisted living facility is authorized to provide have not changed since the issuance of JC-0072.
Compare Act of May 31, 2009, 81 st Leg., R.S., ch. 1106, 2, sec. 247.002(1), 2009 Tex. Sess. Law
Serv. 3038, 3041 (to be codified as an amendment to TEX. HEALTH & SAFETY CODE ANN.
247.002(1)), with Tex. Att'y Gen. Op. No. JC-0072 (1999) at 2 (quoting the then current version of
section 247.002(3)).
Your predecessor explained that certain 1999 amendments to the assisted living facility
statute "became effective after JC-0072 was issued," and she believed they may have altered the
conclusion in that opinion. Request Letter at 2.6 Specifically, your predecessor explained that
section 247.0011 (c), which was added to chapter 247 in 1999, "provides that assisted living services
should enhance a person's ability to age in place in a residential setting while receiving increasing
or decreasing levels of services as the person's needs change" and that this overriding goal requires
that assisted living facility "services be flexible to serve the changing needs" of residents. Id. at 2;
TEX. HEALTH & SAFETY CODE ANN. 247.0011(c) (Vernon 2001). While the Legislature's 1999
amendments to chapter 247 were made with the intent of promoting "policies allowing an assisted
living resident to remain in an assisted living facility longer without being prematurely placed in a
nursing home," it does not necessarily follow that the Legislature intended to authorize assisted
living facilities to use facility staff to provide the nursing services that the Department's
interpretation of Rule 92.41(e)(1)(B) would allow. SENATE COMM. ON HEALTH SVCS., SENATE
5The 1998 version of section 92.2, entitled "Basis and Scope," has been repealed; section 92.2 currently
provides a list of definitions. See 23 Tex. Reg. 7042 (1998), amended at 25 Tex. Reg. 6362 (2000) (in response to
Senate Bill 93), repealed at 34 Tex. Reg. 240 (2009). See also supra note 4.
6The amendments referred to were enacted prior to the issuance of Texas Attorney General Opinion JC-0072,
and they were acknowledged in that opinion. Tex. Att'y Gen. Op. No. JC-0072 (1999) at 2 n.2. Specifically, this office
recognized that "[r]ecent legislation amending other provisions of chapter 247 of the Health and Safety Code does not
alter the statutory definition of the term 'personal care services.'" Id.(GA-0742)
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Texas. Attorney-General's Office. Texas Attorney General Opinion: GA-0742, text, October 20, 2009; (https://texashistory.unt.edu/ark:/67531/metapth275638/m1/4/?rotate=180: accessed July 16, 2024), University of North Texas Libraries, The Portal to Texas History, https://texashistory.unt.edu; crediting UNT Libraries Government Documents Department.