Collin Creek Assisted Living Center, Inc. D/B/A/ Dayspring Assisted Living Community v. Christine Faber, Individually and as Heir at Law of Carmelina "millie" Smith

Supreme Court of Texas
══════════
No. 21-0470
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Collin Creek Assisted Living Center, Inc. d/b/a/ DaySpring
Assisted Living Community,
Petitioner,

v.

Christine Faber, Individually and as Heir at Law of Carmelina
“Millie” Smith, Deceased,
Respondent

═══════════════════════════════════════
On Petition for Review from the
Court of Appeals for the Fifth District of Texas
═══════════════════════════════════════

JUSTICE BOYD, joined by Justice Lehrmann and Justice Devine,
dissenting.

As the Court explains, a claim alleging that a health care provider
violated regulatory safety standards constitutes a health care liability
claim under the Texas Medical Liability Act only if, “at a minimum,
there [is] a ‘substantive nexus between the safety standards allegedly
violated and the provision of health care.’” Ante at 10 (quoting Ross v.
St. Luke’s Episcopal Hosp., 462 S.W.3d 496, 504 (Tex. 2015)). Christine
Faber claims in this case that the DaySpring Assisted Living
Community violated safety standards when it caused the death of her
mother, Carmelina “Millie” Smith, but nothing in this record indicates
that those standards had any relationship to “health care” as the Act
defines that term. More specifically, nothing indicates that DaySpring
provided any health care to Smith at all. In fact, DaySpring required
Smith and Faber to sign a form created by DaySpring acknowledging
that DaySpring “does NOT provide . . . health care services (other than
assistance with medication administration, if requested).” Because
DaySpring did not provide “health care” to Smith, the safety standards
it allegedly violated have no substantive nexus to health care, so Faber’s
claim against DaySpring cannot constitute a “health care liability
claim.” I respectfully dissent.
I.
“Health Care Liability Claim”

A claim qualifies as a health care liability claim under the Texas
Medical Liability Act (TMLA) if: (1) the defendant is a physician or
health-care provider; (2) the claim alleges “treatment, lack of treatment,
or a departure from accepted standards of medical care, or health care,
or safety or professional or administrative services directly related to
health care;” and (3) the defendant’s conduct proximately caused the
claimant’s injury or death. Tex. W. Oaks Hosp., LP v. Williams, 371
S.W.3d 171, 180 (Tex. 2012) (citing TEX. CIV. PRAC. & REM. CODE
§ 74.001(a)(13)).1

1 “Health care liability claim” means
a cause of action against a health care provider or physician for
treatment, lack of treatment, or other claimed departure from
accepted standards of medical care, or health care, or safety or

2
 Regarding the first element, an assisted living facility like
DaySpring qualifies as a health-care provider under the TMLA. TEX.
CIV. PRAC. & REM. CODE § 74.001(a)(11)(B), (12)(A)(vii). But that does
not mean that everything—or even anything—a particular assisted
living facility does constitutes “health care” under the TMLA. The
second element determines that question.
Addressing the second element, the Court does not consider
whether Faber’s claim alleges a departure from accepted standards of
“medical care” or “health care.” Instead, it concludes that the claim falls
within the definition’s “safety standards” prong because it effectively
alleges that DaySpring’s personal-care assistant violated safety
standards that governed Dayspring’s provision of services to Smith.
Ante at 15–16. But as the Court acknowledges, see id. at 10, a claim falls
within the TMLA’s safety-standards prong only if “a substantive nexus”
exists “between the safety standards allegedly violated and the provision
of health care.” Ross, 462 S.W.3d at 504 (emphasis added).2

professional or administrative services directly related to health
care, which proximately results in injury to or death of a
claimant, whether the claimant’s claim or cause of action sounds
in tort or contract.
TEX. CIV. PRAC. & REM. CODE § 74.001(a)(13).
2 As the Court notes, we also stated in Ross that the “pivotal issue in a
safety standards-based claim is whether the standards on which the claim is
based implicate the defendant’s duties as a health care provider, including its
duties to provide for patient safety.” Ross, 462 S.W.3d at 505 (emphasis added).
Repeatedly relying on this statement, the Court suggests that a claim is a
health care liability claim whenever (1) the defendant qualifies as a health care
provider, and (2) the claim alleges that the defendant violated a regulatory
safety standard that applies to the defendant. See ante at 15–16, 21, 22 & n16.

3
 To determine whether the safety standards DaySpring allegedly
violated have a “substantive nexus” to “the provision of health care,” we
must first determine what the TMLA means by “health care.” Under the
TMLA, “health care” means any act performed by a health-care provider
“for, to, or on behalf of a patient during the patient’s medical care,
treatment, or confinement.” TEX. CIV. PRAC. & REM. CODE
§ 74.001(a)(10) (emphasis added). “Medical” care, in turn, means “any
act defined as practicing medicine under Section 151.002, Occupations
Code, performed or furnished, or which should have been performed, by
one licensed to practice medicine in this state for, to, or on behalf of a
patient during the patient’s care, treatment, or confinement.” Id.
§ 74.001(a)(19).3 Under these definitions—as we explained just last

But we rejected that exact argument when we applied Ross in two subsequent
per curiam opinions: Reddic v. E. Tex. Med. Ctr. Reg’l Health Care Sys., 474
S.W.3d 672, 675–76 (Tex. 2015), and Galvan v. Mem’l Hermann Hosp. Sys., 476
S.W.3d 429, 432–33 (Tex. 2015). In Reddic, we held that a hospital visitor’s
claim based on a slip-and-fall in the hospital’s lobby was not a health care
liability claim even though it alleged the hospital violated safety standards
governing the safety of its lobby floors because “the record does not support a
conclusion that safety standards regarding maintenance of the floor and mats
where Reddic fell were substantively related to the safety of patients receiving
health care or persons seeking health care.” 474 S.W.3d at 676. We applied the
same reasoning in Galvan, holding that a similar claim involving a visitor’s
slip-and-fall in a hospital hallway was not a health care liability claim. 476
S.W.3d at 432–33. As these cases confirm, the mere fact that (1) DaySpring
qualifies as a health care provider and (2) Faber alleges that DaySpring
violated a safety standard that “implicates” its duties to its residents does not
make Faber’s claim a health care liability claim. Instead, the safety standard
itself must have a “substantive nexus” to DaySpring’s “provision of health
care.” Ross, 462 S.W.3d at 504.
3Because the TMLA expressly defines the terms “health care” and
“medical care,” we must apply those definitions even if the terms might bear
other meanings in different circumstances. See TEX. GOV’T CODE § 311.011;

4
term—“physicians provide ‘medical care’ and health care providers
provide ‘health care,’” but “health care providers provide health care
only when they furnish treatment to a patient ‘during’—or as part of—
a physician’s provision of ‘medical care.’” Lake Jackson Med. Spa, Ltd.
v. Gaytan, 640 S.W.3d 830, 841 (Tex. 2022) (quoting TEX. CIV. PRAC. &
REM. CODE § 74.001(a)(10)) (emphasis added). So the care that
DaySpring provided to Smith would qualify as “health care” only if
DaySpring provided that care as part of a physician’s provision of
“medical care” to Smith.
As the Court explains, we “have held that although a claim
alleging a ‘breach of health-care or medical-care standards must involve
a physician–patient relationship’ to qualify as a health care liability
claim, a claim alleging a ‘breach of safety, professional-services, or
administrative-services standards’ need not.” See ante at 15 (quoting
Gaytan, 640 S.W.3d at 841)). But those holdings referred only to
physician–patient relationships between the claimant and the
defendant. See Gaytan, 640 S.W.3d at 841; Tex. W. Oaks Hosp., 371
S.W.3d at 178. A claim alleging violations of safety standards may
qualify as a health care liability claim even if the claimant has no
physician–patient relationship with the defendant, but only if the safety
standards at issue have a substantive nexus to health care. See Ross,
462 S.W.3d at 504–05. And to have a substantive nexus to “health care,”
the standards must have a substantive relationship to care provided as

TGS-NOPEC Geophysical Co. v. Combs, 340 S.W.3d 432, 439 (Tex. 2011) (“If a
statute uses a term with a particular meaning or assigns a particular meaning
to a term, we are bound by the statutory usage.” (citing Tex. Dep’t of Transp.
v. Needham, 82 S.W.3d 314, 318 (Tex. 2002)).

5
part of a physician’s provision of “medical care.” See Gaytan, 640 S.W.3d
at 841.
Thus, for a safety-standards claim to qualify as a health care
liability claim, the claimant need not have a physician–patient
relationship with the defendant, but the defendant must be providing
“health care,” and it can be providing health care as the TMLA defines
that term only if it is providing care as part of a physician’s provision of
medical care to the claimant. If it is not, the safety standards can have
no “substantive nexus” to health care. This is not—as the Court
accuses—a new “strict rule” I propose today as a replacement for the
Ross factors, see ante at 16, it is the very rule we announced in Ross
when we construed the TMLA to require a “substantive
nexus . . . between the safety standards allegedly violated and the
provision of health care.” Ross, 462 S.W.3d at 504 (emphasis added).4
II.
Assisted Living Facilities

Having determined the meaning of “health care” under the
TMLA, and before addressing the evidence in this case, it is important
to clarify the nature of an “assisted living facility.” Under Chapter 247

4 The Court’s approach fails to appreciate the fact that the claims in
Ross arose from a very different factual context than this case. In Ross, a
hospital visitor who was not receiving any health care from the hospital slipped
and fell in the hospital’s lobby. It was undisputed, of course, that the hospital
provided health care. See 462 S.W.3d at 503. The issue was whether the safety
standards governing the hospital’s maintenance of the lobby floor had a
substantive nexus to that health care. See id. at 504. As discussed below, the
safety standards governing DaySpring’s conduct in assisting a resident to her
car could have no substantive nexus to health care because DaySpring was not
providing health care at all.

6
of the Texas Health and Safety Code—which addresses and governs
assisted living facilities in Texas—assisted living facilities may, but are
not required to, provide health care. An assisted living facility is simply
an “establishment” that provides (1) “food and shelter to four or more
persons who are unrelated to the proprietor of the establishment,” and
(2) either “personal care services” or “administration of medication by a
person licensed or otherwise authorized in this state to administer the
medication.” TEX. HEALTH & SAFETY CODE § 247.002(1)(A), (B)
(emphasis added); see 26 TEX. ADMIN. CODE § 553.7(a).5
“Personal care services” means “[a]ssistance with feeding,
dressing, moving, bathing, or other personal needs or maintenance,” or
“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 an assisted living facility or who needs assistance to
manage the person’s personal life, regardless of whether a guardian has
been appointed for the person.” TEX. HEALTH & SAFETY CODE
§ 247.002(5). By providing “personal care services,” assisted living
facilities provide a general form of “care” that promotes “resident

5 By rule, an assisted living facility that contracts with the government
to provide care to clients of the Texas Department of Human Services
Community Based Alternatives Assisted Living/Residential Care Program or
the Community Care for the Aged and Disabled Residential Care Program
must also provide basic “home management” services (which include changing
bed linens, housecleaning, laundry, shopping, storing supplies, and washing
dishes), transportation and escort services, social and recreational activities,
participation in assessments by an outside licensed nurse, and emergency care
while the facility seeks a permanent placement in a more appropriate
institution. 40 TEX. ADMIN. CODE § 46.1, .41(b)(2)–(6). This record includes no
indication that DaySpring provides services pursuant to such a contract.

7
independence and self-determination,” “humane treatment,”
“conservative intervention,” “access to care,” “continuity of care,”
“coordination of services,” “safe surroundings,” “professionalism of
service providers,” “participation in useful studies,” and “quality of life.”
Id. § 247.0011(a). The purpose of such care is to “enhance” the resident’s
“ability to age in place in a residential setting while receiving increasing
or decreasing levels of service as the [resident’s] needs change.” Id.
§ 247.0011(c).
Chapter 247 refers to those receiving care from assisted living
facilities as “residents,” not as “patients.” Id. § 247.0011(b).6 Assisted
living facilities must meet certain “resident care standards,” “life safety
code standards,” and “physical plant standards,” but the statute never
mentions “medical care standards” or “health care standards.” Id.
§ 247.021(d)(1)–(2), (g)(5). In fact, Chapter 247 never mentions “medical
care” and refers to “health care” only when referring to “health care
professionals” that assisted living facilities “may,” but are not required
to, have on staff. See id. §§ 247.002(1)(D)(i), .026(h), .029(c)(1), .067.
To understand the nature of assisted living facilities, it is helpful
to contrast them with “convalescent and nursing facilities and related
institutions,” often referred to as “nursing homes,” which are governed

6 In all of Chapter 247, the term “patient” appears only twice, referring
both times to “patients” or “clients” of the Texas Department of State Health
Services, the Texas Department of Aging and Disability Services, a local
mental-health authority, or a local intellectual and developmental disability
authority, which may “refer” their “patient” or “client” to an assisted living
facility. TEX. HEALTH & SAFETY CODE §§ 247.063(a), .065(b)(7). In relation to
an assisted living facility, Chapter 247 refers to those who live there only as
“residents.”

8
by Chapter 242 of the Health and Safety Code. Like assisted living
facilities, nursing facilities must provide “food and shelter to four or
more persons who are unrelated to the proprietor of the establishment,”
but they must also provide “minor treatment under the direction and
supervision of a physician licensed by the Texas Medical Board, or other
services that meet some need beyond the basic provision of food, shelter,
and laundry.” Id. § 242.002(10) (emphasis added). Unlike assisted living
facilities, nursing facilities must have on staff a “licensed nursing
facility administrator,” “at least one medical director who is licensed as
a physician in this state,” and “a director of nursing services who shall
be a registered nurse.” Id. §§ 242.015(a), .151(a), .153. Like Chapter 247,
Chapter 242 refers to those living in a nursing facility as “residents,” but
unlike Chapter 247, Chapter 242 defines the term “resident” as
“including a patient.” Id. § 242.002(12).
Unlike assisted living facilities, nursing facilities must provide
their residents with “the nursing care required to allow each resident to
achieve and maintain the highest possible degree of function and
independence medically possible.” Id. § 242.154(a) (emphasis added). As
we have previously held, nursing homes necessarily provide health care
because they provide round-the-clock services, including physician
examinations and pharmaceutical and dental services, by medical staff
that includes physicians, nurses, nurse aides, and orderlies, according
to a “comprehensive care plan to address the resident’s medical, nursing,
mental, psychosocial, and other needs.” Diversicare Gen. Partner, Inc. v.
Rubio, 185 S.W.3d 842, 849–50 (Tex. 2005). Chapter 242 and related
regulations impose such requirements on nursing facilities, but (with

9
limited exceptions not applicable here) Chapter 242 “does not apply to
an assisted living facility licensed under” Chapter 247. TEX. HEALTH &
SAFETY CODE § 247.003(a). Indeed, standards adopted by the Health and
Human Services Commission to protect the “health and safety” of
residents in assisted living facilities must “clearly differentiate an
assisted living facility from [a nursing facility] required to be licensed
under Chapter 242.” Id. § 247.026(b)(1).
All this is not to say that no assisted living facility ever provides
“health care.” As explained above, assisted living facilities qualify as
health-care providers, and they do provide “health care” when they
furnish treatment to a patient as part of a physician’s provision of
“medical care.” Gaytan, 640 S.W.3d at 841. In addition to providing food,
shelter, and personal-care services, for example, an assisted living
facility “may” provide “assistance with or supervision of the
administration of medication,” “skilled nursing services” for certain
“limited purposes,” or certain “health maintenance activities,” which
involve “task[s] that require[] a higher level of skill to perform than
personal care services.” TEX. HEALTH & SAFETY CODE § 247.002(1)(C)–
(E); 26 TEX. ADMIN. CODE §§ 553.3(33)(B), 553.7(b) (emphasis added).
They may also provide “brain injury rehabilitation services,” “personal
care services to residents with Alzheimer’s disease or related disorders,”
and “geriatric care.” TEX. HEALTH & SAFETY CODE § 247.026(c), (c-1), (f).
And they “may” employ a “health care professional,” including “a
physician, registered nurse, licensed vocational nurse, licensed
dietitian, physical therapist, and occupational therapist,” who is
“licensed, certified, or otherwise authorized to administer health care.”

10
Id. § 247.067(a), (b) (emphases added); see also 26 TEX. ADMIN. CODE
§ 553.3(32).
But assisted living facilities are not required to employ a health-
care professional or to provide services other than personal-care
services. Even those that do7 “must not provide ongoing services to a
resident that are comparable to the services available in a nursing
facility licensed under” Chapter 242. 26 TEX. ADMIN. CODE
§ 553.261(c)(1). And those that don’t provide only personal-care services,
which qualify as “health care” only if they are provided as part of a
physician’s provision of “medical care.” Gaytan, 640 S.W.3d at 841.
III.
DaySpring’s Services

The record here establishes that DaySpring provided only
personal-care services to Smith and did not provide those services as
part of any physician’s provision of medical care. As a result, DaySpring
did not provide any health care to Smith as the TMLA defines that term,
so Faber’s claim cannot be a health care liability claim under either the
health-care or “safety” prong.
DaySpring’s executive director testified that DaySpring is “a non-
medical community where residents can receive assistance with
activities of daily living.” [Emphasis added.] She explained that, with
the exception of assisting some residents with medication

7 Chapter 247 recognizes that there are “different types of assisted
living facilities,” TEX. HEALTH & SAFETY CODE § 247.048(2), but they differ
based not on the level of care or types of services they provide, but on “the
capability of the residents to evacuate the facility” in the case of an emergency.
26 TEX. ADMIN. CODE § 553.5(a).

11
administration, DaySpring provides only personal-care services, which
means “assistance with the activities of daily living such as bathing,
dressing, [and] ambulating.” It employs only one licensed vocational
nurse, but only to oversee the administration of medications for
residents who need that service. It otherwise provides only personal-
care services, relying on “caregivers” and nurse aides.
Smith was 87 years old when she moved into DaySpring. She had
a history of several physical ailments, as well as a history of falls, but
she was able to move around with a walker without assistance and did
not require a wheelchair. Because of her risk of falling, her primary-care
physician “recommended” to Faber that “she be in an assisted living
[facility].”
A few months later, Faber made the decision to move Smith to
DaySpring, not because of the physician’s recommendation, but because
a social worker told Faber that Medicare would not pay for fall-related
treatment if she didn’t move Smith to a “place where she would be
watched.” Faber initially arranged for Smith to stay at DaySpring for a
few days, to see if it was a good fit. Smith “really liked” DaySpring
because she “was a social person,” so they decided she would move there
a couple months later.
Before making the move, Faber met with DaySpring’s executive
director, director of resident care, and assistant director of resident care,
none of whom are medical professionals, to discuss the assistance Smith
would need. Together they completed a “Comprehensive Functional
Assessment and Individual Service Plan” for Smith’s stay at DaySpring.
The plan noted that Smith had “health conditions” that were “unstable

12
chronic conditions where flare-ups may occur,” but that she did not
“require assistance for any special treatments or procedures” other than
“blood pressure monitoring 2x week” and that she would not need
assistance in administering her medications for those conditions. It
further noted that she was fully oriented as to place and time, was alert
with no impairment, and was able to participate in activities and events
without assistance.
The Service Plan noted that Smith had fallen more than once in
the preceding twelve months and that she required “staff to provide
stand by assistance with bathing up to 3 times weekly.” It also noted
that she did not require assistance for hygiene and grooming, getting
dressed, or laundry, was “totally independent” in “mobility” and “moving
from place to place,” and needed no assistance with “transfers,” although
she did require “resting areas intermittently throughout [the]
residence.” Faber testified that Smith needed assistance with “getting
around from place to place,” and DaySpring’s executive director testified
that Smith “was capable of walking by herself but long distances were
difficult for her.”
In addition to the Service Plan that Smith, Faber, and DaySpring
completed, Faber provided DaySpring with a “Doctor’s History &
Physical Report,” which Smith’s primary-care physician had prepared a
few days earlier. This physician was not employed by DaySpring, and
its executive director did not know him from “any other patients or
history.” The Doctor’s Report noted that Smith was an 87-year-old
woman with a number of physical ailments, including “generalized
osteoarthrosis” and a limited range-of-motion in her upper and lower

13
extremities. He observed that Smith walked “with a walker,” had a
“history of fall[s],” and required “assistance with ambulation.”
Nevertheless, he opined that Smith did not need skilled-nursing care
and was capable of administering her medications independently, and
that her needs could “be met at a non-medical, licensed assisted-living
facility.” [Emphasis added.] In a section describing the “treatment”
Smith required, he prescribed medications for various ailments,
diagnostic imaging, and a referral to a specialist for urological issues.
He did not list or prescribe any “treatment” related to her “transfer and
ambulation.”
Importantly, Smith’s file also contained a third document, which
DaySpring required Smith and Faber to sign to confirm their
understanding that DaySpring provided only personal-care services to
assist with “routine living functions” and would not provide Smith with
any “health care” services:

NOTICE
THIS ASSISTED LIVING FACILITY
DOES NOT PROVIDE
NURSING CARE

This facility is an assisted living facility; also known
as a personal care facility. A personal care facility
is . . . a facility which provides “acts of a protective
nature. Personal care is understood to mean adult
and responsible supervision or assistance with
routine living functions in instances of a resident’s
condition necessitating such supervision or
assistance.”

14
 This is NOT a nursing home and this facility does
NOT provide nursing or other health care services
(other than assistance with medication
administration, if requested) . . . . This facility DOES
NOT provide nursing home services, which are
defined as “Services provided by nursing personnel
(include) observation; promotion and maintenance of
health; prevention of illness and disability;
management of health care during acute and chronic
phases of illness; guidance and counseling of
individuals and families; and referral to physicians,
other health care providers, and community
resources when appropriate.”

BY SIGNING BELOW, I CERTIFY THAT I HAVE
READ AND UNDERSTOOD THE CONTENTS OF
THIS NOTICE.

[Italics added.]
Nevertheless, DaySpring now argues that it was providing
“health care” to Smith when its personal-care attendant pushed her
backwards over a broken sidewalk in a rolling walker, and the Court
agrees. But the record does not establish that DaySpring’s services to
assist Smith to her daughter’s vehicle were provided as part of a
physician’s provision of medical care.
Because DaySpring did not itself provide medical care or health
care and instead provided only personal-care services, the Court focuses
on the fact that Smith’s physician recommended to Faber that Smith
“move to” an assisted living facility. See ante at 17. In the Court’s view,
this “recommendation” creates a sufficient substantive nexus between
the medical care that Smith’s physician provided to her and the safety

15
standards that governed DaySpring’s provision of personal-care
services. This view directly contradicts our recognition in Ross that “the
Legislature did not intend for the expert report requirement to apply to
every claim for conduct that occurs in a health care context.” 462 S.W.3d
at 502. To the contrary, a “safety standards-based claim does not come
within the TMLA’s provisions just because the underlying occurrence
took place in a health care facility, the claim is against a health care
provider, or both.” Id. at 503. Instead, “the safety standards referred to
in the definition are those that have a substantive relationship with the
providing of medical or health care.” Id. at 504. Otherwise, “the broad
meaning of ‘safety’ would afford defendant health care providers a
special procedural advantage in the guise of requiring plaintiffs to file
expert reports in their suits regardless of whether their cause of action
implicated the provision of medical or health care.” Id.
By finding a “substantive nexus” based merely on a doctor’s
recommendation that his patient move into a facility that expressly does
not provide health care and instead provides only personal-care services,
the Court today promotes the very “arbitrary results” we sought to avoid
in Ross. Id. Smith’s primary-care physician merely “recommended” to
Faber that Smith move into an assisted living facility and noted that she
needed assistance with ambulating. He did not order or emphasize that
she move or that she receive such services, and he agreed that her needs
could “be met at a non-medical, licensed assisted-living facility.”
[Emphasis added.] Concluding that DaySpring provided “health care”
because of the physician’s recommendation would be like concluding
that a restaurant provides health care to a patron whose physician

16
recommended he eat better. Smith’s physician had no prior or ongoing
relationship with DaySpring, did not recommend DaySpring
specifically, and exerted no supervision over the personal-care services
it provided to Smith. Further, Smith waited several months after this
recommendation to actually move into the facility and only did so after
her daughter received information that moving into a facility might be
necessary for continued Medicare coverage.
Even accepting that an outside physician’s recommendation could
be enough to support a substantive nexus, an application of the Ross
factors confirms that no substantive nexus exists between the
physician’s medical care for Smith and the safety standards that
DaySpring allegedly violated.8 Smith was a “resident” of DaySpring, not

8 The Ross factors are:
1. Did the alleged negligence of the defendant occur in the course
of the defendant’s performing tasks with the purpose of
protecting patients from harm;
2. Did the injuries occur in a place where patients might be
during the time they were receiving care, so that the obligation
of the provider to protect persons who require special, medical
care was implicated;
3. At the time of the injury was the claimant in the process of
seeking or receiving health care;
4. At the time of the injury was the claimant providing or
assisting in providing health care;
5. Is the alleged negligence based on safety standards arising
from professional duties owed by the health care provider;
6. If an instrumentality was involved in the defendant’s alleged
negligence, was it a type used in providing health care; or

17
a “patient,” DaySpring did not provide any “health care” to Smith, and
DaySpring’s obligation to maintain its sidewalks protects not patients
but rather the general public. See, e.g., id. at 505 (holding that the
hospital’s maintenance of its lobby floor was not “for the purpose of
protecting patients” but to protect the general public).9 And the Service
Plan completed when Smith entered the facility noted that she was
“totally independent” in “mobility” and “moving from place to place,” and
needed no assistance with “transfers.”10

7. Did the alleged negligence occur in the course of the
defendant’s taking action or failing to take action necessary to
comply with safety-related requirements set for health care
providers by governmental or accrediting agencies?
Ross, 462 S.W.3d at 505 (emphases added).
9 The Court cites Department of Aging and Disability Services
Administrative Rule 46.41 for the proposition that DaySpring was required to
assist Smith with service-plan activities “related to the care of [her] physical
health,” which in Smith’s case included “ambulating.” Ante at 19–20 (citing 40
TEX. ADMIN. CODE § 46.41(b)(1)(H)). But Chapter 46 of Title 40 applies only to
an assisted living facility that contracts with the government to provide care
to clients of the Texas Department of Human Services Community Based
Alternatives Assisted Living/Residential Care Program or the Community
Care for the Aged and Disabled Residential Care Program. See 40 TEX. ADMIN.
CODE § 46.1. Chapter 46 is inapplicable here. The record contains no evidence
that DaySpring entered into or provided services to Smith under any such
contract. Thus, these regulations cannot support the idea that DaySpring was
assisting with activities “related to the client’s physical health.” Id. §
46.41(b)(1).
10The Court relies on a different set of intake paperwork that indicated
Smith had trouble ambulating independently and required standby assistance.
Ante at 18. However, this paperwork was completed several months before
Smith permanently moved into the facility. I rely on the paperwork completed
just a short time before the accident as the most reliable indicator of Smith’s
needs at the time she moved into the facility. That intake assessment rated
Smith as “totally independent.”

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 The Court’s focus on “safety” does not justify its conclusion that a
substantive nexus is present here. Contrary to the Court’s
characterization, Chapter 247 and the rules that govern assisted living
facilities, such as the sidewalk requirements, never describe their
“safety” standards as “standards of health care.” Ante at 14 & n.6, 16.
Instead, they require compliance with “life safety standards” and
“physical plant standards,” TEX. HEALTH & SAFETY CODE § 247.021(d-2);
26 TEX. ADMIN. CODE § 553.23(d), and define the term “safety” to refer
generally to “[p]rotection from injury or loss of life due to such conditions
as fire, electrical hazard, unsafe building or site conditions, and the
hazardous presence of toxic fumes and materials,” 26 TEX. ADMIN. CODE
§ 553.3(74) (emphasis added).
The regulatory standard on which the Court relies, which
requires assisted living facilities to “ensure a ramp, walk, or step is of
slip-resistant texture and is uniform, without irregularities,” 26 TEX.
ADMIN. CODE § 553.103(d)(2), is simply a “physical plant” standard. This
standard is listed with others, like ensuring the facility is served by a
firefighting unit, has adequate parking, has guardrails and handrails
where needed, is “maintained in good condition and kept free of rubbish,
garbage, and unintended growth,” has sufficient water drainage, and (in
some cases) is not located in a 100-year floodplain. Id. § 553.103. These
are general physical plant standards that apply regardless of whether
the assisted living facility chooses to provide health care, not standards
that specifically govern a facility’s provision of health care as the Court
asserts. See ante at 16, 22 n.16; see also Reddic, 474 S.W.3d at 675–76
(holding that safety standards requiring a hospital to eliminate general

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safety risks and maintain the hospital grounds did not have or create a
sufficient nexus to health care to qualify a visitor’s premises-liability
claim as a health care liability claim). Because DaySpring does not
provide health care, the safety standards that govern it have no
substantive nexus to health care.
The Court also considers Dayspring’s regulatory duty to safely
provide ambulatory assistance to its residents. See ante at 18 & n.13.
But DaySpring’s service plan for Smith did not include any services
provided as part of a physician’s provision of medical care. An assisted
living facility’s “service plan” is simply a “written description of the
medical care, supervision, or nonmedical care needed by a resident.” 26
TEX. ADMIN. CODE § 553.3(76) (emphasis added). As explained, assisted
living facilities “may” provide medical care or health care, and when
they do those service plans must describe that care, but that was not the
case here. And although the Court repeatedly identifies the walker—in
its words, “an instrumentality used in providing healthcare,” ante at
23—as an operative fact underlying Faber’s claim, the walker was
Smith’s own walker and was not provided by DaySpring or her
physician.
Under this record, even analyzing this case under the supposition
that a physician’s remote recommendation that a patient should move
to a facility could provide a sufficient substantive nexus to healthcare,
DaySpring failed to demonstrate that it did so here.

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 IV.
Conclusion

Because nothing in this record establishes that DaySpring
provided any services as part of a physician’s provision of medical care
to Smith, DaySpring did not provide Smith with any “health care” as the
TMLA defines that term. Faber’s claim therefore does not assert a
departure from accepted standards of health care or from accepted
standards of “safety” having a “substantive nexus” to health care. And
because Smith was not a patient receiving health care from DaySpring,
the Ross factors are not satisfied here. As a result, Faber’s claim does
not qualify as a health care liability claim under the TMLA, and I must
respectfully dissent.

_____________________
Jeffrey S. Boyd
Justice

OPINION FILED: June 30, 2023

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