If a boarding home is registered with a local mental health authority in Texas, does that automatically exempt it from Texas Department of Health licensing as a personal care home?

Texas AG Opinion JM-1214: Does Registering a Boarding Home With a Mental Health Authority Exempt It From Health Department Licensing?

Plain-English summary

The Commissioner of the Texas Department of Health asked whether boarding homes registered with local mental health and mental retardation authorities under article 5547-206, V.T.C.S., were exempt from Department of Health licensing as personal care homes. The relevant exemption in the Health and Safety Code applies to a facility that primarily provides training, habilitation, rehabilitation, or education; is operated under the jurisdiction of a state or federal agency (including the Department of Mental Health and Mental Retardation); and is certified through inspection or evaluation as meeting standards that agency established.

The Attorney General concluded registration alone did not satisfy this exemption. The registration statute places the actual registration duty on local mental health and mental retardation authorities, not the state department, and it requires the state department only to approve local guidelines that call for local inspection and compliance with local health, sanitation, fire, and safety requirements, not compliance with standards the state department itself sets. Because the statute imposed no requirement that boarding homes meet standards established by the Department of Mental Health and Mental Retardation, the opinion found the exemption's certification requirement was not met, so registration under article 5547-206 did not by itself exempt a boarding home from Department of Health licensing.

Currency note

This opinion was issued in 1990. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule mentioned here.

Who this opinion affected (as of 1990)

The Texas Department of Health: The opinion confirmed the Department retained licensing authority over boarding homes merely registered with local mental health and mental retardation authorities, since that registration alone did not satisfy the Health and Safety Code exemption from Department of Health regulation.

Boarding homes registered under article 5547-206: The opinion meant these facilities could not rely solely on their local registration to avoid separate licensing and inspection by the Texas Department of Health as personal care homes.

Local mental health and mental retardation authorities: The opinion clarified that the registration and inspection duties these authorities carry out under article 5547-206 do not substitute for, or exempt facilities from, Department of Health licensing requirements.

Common questions

Does registering a Texas boarding home with a local mental health authority get it out of Department of Health licensing?
No, according to the opinion. The Attorney General found the exemption requires certification that the facility meets standards actually established by the relevant state agency, and the boarding home registration statute imposes no such state-agency standards, so registration alone does not qualify a home for the exemption.

Who actually registers boarding homes under article 5547-206?
Local mental health and mental retardation authorities, not the state Department of Mental Health and Mental Retardation. The department's role is limited to approving the local authority's guidelines and, under section 6.05, withholding funds from a local authority that refers clients to an unregistered home.

What would a boarding home need to qualify for the Health and Safety Code exemption?
Based on the opinion's reasoning, a facility would need to be operated under a state or federal agency's jurisdiction and be certified through that agency's own inspection or evaluation as meeting standards the agency itself established, something the article 5547-206 registration scheme does not provide since it relies on local guidelines and local inspections rather than state-set standards.

Background and statutory framework

Section 242.003(a)(6) of the Health and Safety Code exempts from certain Department of Health regulations a facility that primarily engages in training, habilitation, rehabilitation, or education of clients or residents; is operated under the jurisdiction of a state or federal agency, including the Department of Mental Health and Mental Retardation; and is certified through inspection or evaluation as meeting standards the agency established.

Article 5547-206, V.T.C.S., places the duty to register boarding homes on local mental health and mental retardation authorities, not the state department; boarding homes actually operated by the department itself are separately exempt from those registration requirements. Under section 6.03(a), each local authority must adopt guidelines for registering boarding homes, submit those guidelines to the state department for approval, adopt local standards for personal and financial services, register boarding homes, and inspect each registered home to which it refers a client at least annually. Section 6.04 requires the department to approve a local authority's guidelines if they call for annual inspections, require registered homes to submit to those inspections, and require compliance with applicable local health, sanitation, fire, and safety requirements. Section 6.05 lets the department withhold funds from a local authority that refers clients to an unregistered home.

The opinion found the relationship between a registered boarding home and the state department "so attenuated" that it was doubtful the home could even be considered under the department's jurisdiction for purposes of the exemption's first requirement. More decisively, the opinion found the exemption's certification requirement was not met regardless: article 5547-206 does not require boarding homes to meet standards set by the department, but only requires the department to approve local guidelines calling for local inspection and compliance with local (not state) health, sanitation, fire, and safety requirements. Because certification against department-established standards was absent from the statutory scheme, the opinion concluded registration under article 5547-206 did not, by itself, bring a boarding home within the Health and Safety Code exemption.

Citations

Statutes:

• Tex. Health & Safety Code § 242.002 (facilities subject to Department of Health licensing)
• Tex. Health & Safety Code § 242.003(a)(6) (exemption for certain state/federal agency-certified facilities)
• V.T.C.S. art. 5547-206, § 6.02 (exemption for boarding homes operated by the Department of Mental Health and Mental Retardation)
• V.T.C.S. art. 5547-206, § 6.03(a) (local mental health authority boarding home duties)
• V.T.C.S. art. 5547-206, § 6.04 (state department approval of local guidelines)
• V.T.C.S. art. 5547-206, § 6.05 (department authority to withhold funds from local authority)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/jim-mattox/jm-1214
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1990/jm1214.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain, the linked PDF is authoritative.

August 31, 1990

Robert Bernstein, M.D.
Commissioner of Health
Texas Department of Health
1100 West 49th Street
Austin, Texas 78756-3199

Opinion No. JM-1214

Re: Whether the Texas Department of Health is required 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 question is whether boarding homes registered with local mental health and mental retardation authorities pursuant to article 5547-206 are within the 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 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)(1) 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 § 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 the Department of Mental Health and Mental Retardation. Even if registered boarding homes could be considered to be under the jurisdiction of the Department of Mental Health and Mental Retardation, it is clear that registered boarding homes do not meet the 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 local authority's guidelines 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 yours,

JIM MATTOX
Attorney General of Texas

MARY KELLER
First Assistant Attorney General

LOU MCCREARY
Executive Assistant Attorney General

JUDGE ZOLLIE STEAKLEY
Special Assistant Attorney General

RENEA HICKS
Special Assistant Attorney General

RICK GILPIN
Chairman, Opinion Committee

Prepared by Sarah Woelk
Assistant Attorney General