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
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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.
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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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