H.B. No. 771
1-1 AN ACT
1-2 relating to treatment and care of persons with mental retardation
1-3 and to the certification of special officers for mental health
1-4 assignment.
1-5 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-6 SECTION 1. Sections 591.003(8), (14), and (16), Health and
1-7 Safety Code, are amended to read as follows:
1-8 (8) "Interdisciplinary team" means a group of mental
1-9 retardation professionals and paraprofessionals who assess the
1-10 treatment, training, and habilitation needs of a person with mental
1-11 retardation and make recommendations for services for that person
1-12 <"Diagnosis and evaluation team" means a group of persons with
1-13 special training and experience in the diagnosis, management, and
1-14 needs of persons with mental retardation and that performs a
1-15 comprehensive diagnosis and evaluation>.
1-16 (14) "Mental retardation services" means programs and
1-17 assistance for persons with mental retardation that may include a
1-18 determination of mental retardation, interdisciplinary team
1-19 recommendations <diagnosis and evaluation>, education, special
1-20 training, supervision, care, treatment, rehabilitation, residential
1-21 care, and counseling, but does not include those services or
1-22 programs that have been explicitly delegated by law to other state
1-23 agencies.
1-24 (16) "Person with mental retardation" means a person
2-1 determined by a physician or psychologist licensed in this state or
2-2 certified by the department <comprehensive diagnosis and
2-3 evaluation> to have subaverage general intellectual functioning
2-4 with deficits in adaptive behavior.
2-5 SECTION 2. Sections 592.018, 592.019, and 592.020, Health
2-6 and Safety Code, are amended to read as follows:
2-7 Sec. 592.018. Determination of Mental Retardation <Diagnosis
2-8 and Evaluation>. A person thought to be a person with mental
2-9 retardation has the right promptly to receive a determination of
2-10 mental retardation using diagnostic techniques that are
2-11 <comprehensive diagnosis and evaluation> adapted to that person's
2-12 cultural background, language, and ethnic origin to determine if
2-13 the person is in need of mental retardation services as provided by
2-14 Subchapter A, Chapter 593.
2-15 Sec. 592.019. Administrative Hearing. A person who files an
2-16 application for a determination of mental retardation
2-17 <comprehensive diagnosis and evaluation> has the right to request
2-18 and promptly receive an administrative hearing under Subchapter A,
2-19 Chapter 593, to contest the findings of the determination of mental
2-20 retardation <diagnosis and evaluation team and to determine
2-21 eligibility for mental retardation services>.
2-22 Sec. 592.020. INDEPENDENT DETERMINATION OF MENTAL
2-23 RETARDATION <DIAGNOSIS AND EVALUATION>. A person for <on> whom a
2-24 determination of mental retardation <comprehensive diagnosis and
2-25 evaluation> is performed or a person who files an application for a
2-26 determination of mental retardation <diagnosis and evaluation>
2-27 under Section 593.004 and who questions the validity or results of
3-1 the determination of mental retardation <comprehensive diagnosis
3-2 and evaluation,> has the right to an additional, independent
3-3 determination of mental retardation <diagnosis and evaluation>
3-4 performed at the person's own expense.
3-5 SECTION 3. Section 592.033(a), Health and Safety Code, is
3-6 amended to read as follows:
3-7 (a) Each client has the right to a written, individualized
3-8 habilitation plan developed by appropriate specialists <and based
3-9 on the relevant results of the comprehensive diagnosis and
3-10 evaluation>.
3-11 SECTION 4. Section 592.034(c), Health and Safety Code, is
3-12 amended to read as follows:
3-13 (c) Each client has the right to a periodic reassessment
3-14 <comprehensive rediagnosis and reevaluation>.
3-15 SECTION 5. Section 593.002(b), Health and Safety Code, is
3-16 amended to read as follows:
3-17 (b) The department or community center may provide
3-18 nonresidential mental retardation services, including a
3-19 determination of mental retardation <comprehensive diagnosis and
3-20 evaluation>, to a client without the client's legally adequate
3-21 consent if the department or community center has made all
3-22 reasonable efforts to obtain consent.
3-23 SECTION 6. Sections 593.003-593.007, Health and Safety Code,
3-24 are amended to read as follows:
3-25 Sec. 593.003. REQUIREMENT OF DETERMINATION OF MENTAL
3-26 RETARDATION <DIAGNOSIS AND EVALUATION>. (a) Except as provided by
3-27 Sections 593.027, 593.0275, and 593.028, a person is not eligible
4-1 to receive mental retardation services unless the person first is
4-2 determined to have mental retardation <receives a comprehensive
4-3 diagnosis and evaluation to determine the person's need and
4-4 eligibility for services>.
4-5 (b) <Except as provided by Sections 593.027 and 593.028, a
4-6 person is not eligible for voluntary admission for mental
4-7 retardation services under Subchapter B unless a comprehensive
4-8 diagnosis and evaluation has been performed or revised during the
4-9 three months preceding the date of initial admission for services.>
4-10 <(c) A person may not be committed to a residential care
4-11 facility under Subchapter C unless a comprehensive diagnosis and
4-12 evaluation has been performed or revised during the six months
4-13 preceding the date of the court hearing on the application. If a
4-14 comprehensive diagnosis and evaluation has not been completed or
4-15 revised during that period, the court shall order one on receiving
4-16 the application.>
4-17 <(d)> This section does not apply to an eligible child with
4-18 a developmental disability receiving services under Subchapter A,
4-19 Chapter 535.
4-20 Sec. 593.004. Application for Determination of Mental
4-21 Retardation <Diagnosis and Evaluation>. A person believed to be a
4-22 person with mental retardation, the parent if the person is a
4-23 minor, or the guardian of the person may make written application
4-24 to the department, a community center, a physician, or a
4-25 psychologist licensed to practice in this state or certified by the
4-26 department for a determination of mental retardation <for a
4-27 comprehensive diagnosis and evaluation> using forms provided by the
5-1 department.
5-2 Sec. 593.005. Determination of Mental Retardation
5-3 <Comprehensive Diagnosis and Evaluation>. (a) A physician or
5-4 psychologist licensed to practice in this state or certified by the
5-5 department shall perform the determination of mental retardation.
5-6 The department may charge a reasonable fee for certifying a
5-7 psychologist <A comprehensive diagnosis and evaluation is a study
5-8 of a person believed to be a person with mental retardation that:>
5-9 <(1) is conducted by a diagnosis and evaluation team;
5-10 and>
5-11 <(2) leads to conclusions and recommendations
5-12 formulated jointly, with dissenting opinions if any, by the
5-13 diagnosis and evaluation team>.
5-14 (b) The physician or psychologist shall base the
5-15 determination on an interview with the person and on a professional
5-16 assessment that, at a minimum, includes:
5-17 (1) a measure of the person's intellectual
5-18 functioning;
5-19 (2) a determination of the person's adaptive behavior
5-20 level; and
5-21 (3) evidence of origination during the person's
5-22 developmental period <The study must include:>
5-23 <(1) a social and medical history;>
5-24 <(2) a sequence of medical, neurological,
5-25 audiological, visual, educational, appropriate psychological, and
5-26 sociological examinations and observations; and>
5-27 <(3) an examination of the person's adaptive behavior
6-1 level>.
6-2 (c) The physician or psychologist may use a previous
6-3 assessment, social history, or relevant record from a school
6-4 district, public or private agency, or another physician or
6-5 psychologist if the physician or psychologist determines that the
6-6 assessment, social history, or record is valid <A diagnosis and
6-7 evaluation team may include only individuals who are:>
6-8 <(1) certified under standards adopted by the
6-9 department; and>
6-10 <(2) qualified professionally in the fields necessary
6-11 to perform the comprehensive diagnosis and evaluation>.
6-12 (d) <Except as provided by Subsection (e), the evaluation
6-13 shall be performed at a facility that is:>
6-14 <(1) approved by the department to conduct
6-15 comprehensive diagnoses and evaluations; and>
6-16 <(2) nearest to the home of the person being
6-17 evaluated.>
6-18 <(e)> If the person is indigent, the determination of mental
6-19 retardation <comprehensive diagnosis and evaluation> shall be
6-20 performed at the department's expense by a physician or
6-21 psychologist licensed in this state or certified <at a facility
6-22 designated> by the department.
6-23 Sec. 593.006. Report. <(a) The diagnosis and evaluation
6-24 team shall prepare a written report of a proposed client's
6-25 comprehensive diagnosis and evaluation that:>
6-26 <(1) includes:>
6-27 <(A) a summary of the team's findings;>
7-1 <(B) recommendations for mental retardation
7-2 services needed by the proposed client, if any; and>
7-3 <(C) recommendations of desirable or appropriate
7-4 programs or placement consistent with the needs of the proposed
7-5 client; and>
7-6 <(2) is signed by each team member.>
7-7 <(b) If a court has ordered the comprehensive diagnosis and
7-8 evaluation under Section 593.003, the department shall promptly
7-9 send a copy of the report to the court and to the proposed client
7-10 or the proposed client's legal representative.>
7-11 <(c)> A person who files an application for a determination
7-12 of mental retardation <comprehensive diagnosis and evaluation>
7-13 under Section 593.004 shall be promptly notified in writing of the
7-14 <team's> findings <and recommendations>.
7-15 Sec. 593.007. Notification of Certain Rights. The
7-16 department shall inform the person who filed an application for a
7-17 determination of mental retardation <comprehensive diagnosis and
7-18 evaluation> of the person's right to:
7-19 (1) an independent determination of mental retardation
7-20 <diagnosis and evaluation> under Section 592.020; and
7-21 (2) an administrative hearing under Section 593.008 by
7-22 the agency that conducted the determination of mental retardation
7-23 <diagnosis and evaluation> to contest the <team's> findings <or
7-24 recommendations>.
7-25 SECTION 7. Section 593.008(b), Health and Safety Code, is
7-26 amended to read as follows:
7-27 (b) The proposed client, contestant, and their respective
8-1 representative by right may:
8-2 (1) have reasonable access at a reasonable time before
8-3 the hearing to any records concerning the proposed client relevant
8-4 to the proposed action;
8-5 (2) present oral or written testimony and evidence,
8-6 including the results of an independent determination of mental
8-7 retardation <diagnosis and evaluation>; and
8-8 (3) examine witnesses.
8-9 SECTION 8. Subchapter A, Chapter 593, Health and Safety
8-10 Code, is amended by adding Section 593.013 to read as follows:
8-11 Sec. 593.013. REQUIREMENT OF INTERDISCIPLINARY TEAM
8-12 RECOMMENDATION. (a) A person may not be admitted or committed to
8-13 a residential care facility unless an interdisciplinary team
8-14 recommends that placement.
8-15 (b) An interdisciplinary team shall:
8-16 (1) interview the person with mental retardation, the
8-17 person's parent if the person is a minor, and the person's
8-18 guardian;
8-19 (2) review the person's:
8-20 (A) social and medical history;
8-21 (B) medical assessment, which shall include an
8-22 audiological, neurological, and vision screening;
8-23 (C) psychological and social assessment; and
8-24 (D) determination of adaptive behavior level;
8-25 (3) determine the person's need for additional
8-26 assessments, including educational and vocational assessments;
8-27 (4) obtain any additional assessment necessary to plan
9-1 services;
9-2 (5) identify the person's habilitation and service
9-3 preferences and needs; and
9-4 (6) recommend services to address the person's needs
9-5 that consider the person's preferences.
9-6 (c) The interdisciplinary team shall give the person, the
9-7 person's parent if the person is a minor, and the person's guardian
9-8 an opportunity to participate in team meetings.
9-9 (d) The interdisciplinary team may use a previous
9-10 assessment, social history, or other relevant record from a school
9-11 district, public or private agency, or appropriate professional if
9-12 the interdisciplinary team determines that the assessment, social
9-13 history, or record is valid.
9-14 (e) The interdisciplinary team shall prepare a written
9-15 report of its findings and recommendations that is signed by each
9-16 team member and shall promptly send a copy of the report and
9-17 recommendations to the person, the person's parent if the person is
9-18 a minor, and the person's guardian.
9-19 (f) If the court has ordered the interdisciplinary team
9-20 report and recommendations under Section 593.041, the team shall
9-21 promptly send a copy of the report and recommendations to the
9-22 court, the person with mental retardation or the person's legal
9-23 representative, the person's parent if the person is a minor, and
9-24 the person's guardian.
9-25 SECTION 9. Sections 593.021 and 593.027, Health and Safety
9-26 Code, are amended to read as follows:
9-27 Sec. 593.021. Application for Voluntary Services. The <If
10-1 the diagnosis and evaluation team recommends services, the>
10-2 proposed client, the parent if the proposed client is a minor, or
10-3 the guardian of the person may apply for voluntary mental
10-4 retardation services under Section 593.022 or 593.024.
10-5 Sec. 593.027. Emergency Admission. (a) An emergency
10-6 admission to a residential care facility is permitted without a
10-7 determination of mental retardation and an interdisciplinary team
10-8 recommendation <comprehensive diagnosis and evaluation> if:
10-9 (1) there is persuasive evidence that the proposed
10-10 resident is a person with mental retardation;
10-11 (2) space is available at the facility for which
10-12 placement is requested;
10-13 (3) the proposed resident has an urgent need for
10-14 services that the facility superintendent determines the facility
10-15 provides; and
10-16 (4) the facility can provide relief for the urgent
10-17 need within a year after admission.
10-18 (b) A determination of mental retardation and an
10-19 interdisciplinary team recommendation for <comprehensive diagnosis
10-20 and evaluation of> the person admitted under this section shall be
10-21 performed within 30 days after the date of admission.
10-22 SECTION 10. Subchapter B, Chapter 593, Health and Safety
10-23 Code, is amended by adding Section 593.0275 to read as follows:
10-24 Sec. 593.0275. EMERGENCY SERVICES. (a) A person may
10-25 receive emergency services without a determination of mental
10-26 retardation if:
10-27 (1) there is persuasive evidence that the person is a
11-1 person with mental retardation;
11-2 (2) emergency services are available; and
11-3 (3) the person has an urgent need for emergency
11-4 services.
11-5 (b) A determination of mental retardation for the person
11-6 served under this section shall be performed within 30 days after
11-7 the date the services begin.
11-8 SECTION 11. Section 593.028(a), Health and Safety Code, is
11-9 amended to read as follows:
11-10 (a) A person may be admitted to a residential care facility
11-11 for respite care without a determination of mental retardation and
11-12 interdisciplinary team recommendation <comprehensive diagnosis and
11-13 evaluation> if:
11-14 (1) there is persuasive evidence that the proposed
11-15 resident is a person with mental retardation;
11-16 (2) space is available at the facility for which
11-17 respite care is requested;
11-18 (3) the facility superintendent determines that the
11-19 facility provides services that meet the needs of the proposed
11-20 resident; and
11-21 (4) the proposed resident or the proposed resident's
11-22 family urgently requires assistance or relief that can be provided
11-23 within a period not to exceed 30 consecutive days after the date of
11-24 admission.
11-25 SECTION 12. Section 593.041, Health and Safety Code, is
11-26 amended by amending Subsection (a) and adding Subsection (d) to
11-27 read as follows:
12-1 (a) A proposed resident, if an adult, a parent if the
12-2 proposed resident is a minor, the guardian of the person, the
12-3 court, or any other interested person, including a community center
12-4 or agency that conducted a determination of mental retardation
12-5 <diagnosis and evaluation> of the proposed resident, may file an
12-6 application for an interdisciplinary team report and recommendation
12-7 <a determination> that the proposed client is in need of long-term
12-8 placement in a residential care facility.
12-9 (d) A person may not be committed to the department for
12-10 placement in a residential care facility under this subchapter
12-11 unless a report by an interdisciplinary team recommending the
12-12 placement has been completed during the six months preceding the
12-13 date of the court hearing on the application. If the report and
12-14 recommendations have not been completed or revised during that
12-15 period, the court shall order the report and recommendations on
12-16 receiving the application.
12-17 SECTION 13. Section 593.042(b), Health and Safety Code, is
12-18 amended to read as follows:
12-19 (b) If the <diagnosis and evaluation> report required under
12-20 Section 593.013 <593.006> is completed, a copy must be included in
12-21 the application.
12-22 SECTION 14. Section 593.048, Health and Safety Code, is
12-23 amended to read as follows:
12-24 Sec. 593.048. Hearing Notice. (a) Not later than the 11th
12-25 day before the date set for the hearing, a copy of the application,
12-26 notice of the time and place of the hearing and, if appropriate,
12-27 the order for the determination of mental retardation and
13-1 interdisciplinary team report and recommendations <comprehensive
13-2 diagnosis and evaluation> shall be served on:
13-3 (1) the proposed resident or the proposed resident's
13-4 representative;
13-5 (2) the parent if the proposed resident is a minor;
13-6 (3) the guardian of the person; and
13-7 (4) the department.
13-8 (b) The notice must specify in plain and simple language:
13-9 (1) the right to an independent determination of
13-10 mental retardation <diagnosis and evaluation> under Section
13-11 593.007; and
13-12 (2) the provisions of Sections 593.043, 593.047,
13-13 593.049, 593.050, and 593.053.
13-14 SECTION 15. Section 593.050(d), Health and Safety Code, is
13-15 amended to read as follows:
13-16 (d) The Texas Rules of Civil Evidence apply. The results of
13-17 the determination of mental retardation and the current
13-18 interdisciplinary team report and recommendations <diagnosis and
13-19 evaluation> shall be presented in evidence.
13-20 SECTION 16. Sections 594.001(b) and (c), Health and Safety
13-21 Code, are amended to read as follows:
13-22 (b) This chapter does not apply to the:
13-23 (1) transfer of a client for emergency medical,
13-24 dental, or psychiatric care for not more than 30 consecutive days;
13-25 (2) voluntary withdrawal of a client from mental
13-26 retardation services; or
13-27 (3) discharge of a client by a superintendent or
14-1 director because the person is not a person with mental retardation
14-2 according to the results of the determination of mental retardation
14-3 <comprehensive diagnosis and evaluation>.
14-4 (c) A discharge under Subsection (b)(3) is without further
14-5 hearings, unless an administrative hearing under Subchapter A,
14-6 Chapter 593, to contest the determination of mental retardation
14-7 <comprehensive diagnosis and evaluation> is requested.
14-8 SECTION 17. Section 613.005(b), Health and Safety Code, is
14-9 amended to read as follows:
14-10 (b) If the court considers it necessary, the court may order
14-11 the performance of a determination of mental retardation
14-12 <comprehensive diagnosis and evaluation>, as provided by Section
14-13 593.005, to help the court evaluate the ward's capacity to agree to
14-14 the donation.
14-15 SECTION 18. Subchapter B, Chapter 415, Government Code, is
14-16 amended by adding Section 415.037 to read as follows:
14-17 Sec. 415.037. CERTIFICATION OF SPECIAL OFFICERS FOR MENTAL
14-18 HEALTH ASSIGNMENT. (a) The commission may certify a sheriff,
14-19 sheriff's deputy, justice of the peace, constable, or municipal
14-20 police officer as a special officer for mental health assignment if
14-21 the peace officer has:
14-22 (1) successfully completed a training course in
14-23 emergency first aid and lifesaving techniques approved by the
14-24 commission;
14-25 (2) successfully completed a training course in mental
14-26 health issues administered by the commission; and
14-27 (3) passed an examination administered by the
15-1 commission that is designed to test the officer's:
15-2 (A) knowledge and recognition of the symptoms of
15-3 mental illness and mental disabilities; and
15-4 (B) knowledge of mental health crisis
15-5 intervention strategies.
15-6 (b) The commission may issue a professional achievement or
15-7 proficiency certificate to an officer who meets the requirements
15-8 provided by Subsection (a).
15-9 (c) The commission by rule may establish minimum
15-10 requirements for the training, testing, and certification of
15-11 special officers for mental health assignment.
15-12 SECTION 19. Section 531.001, Health and Safety Code, is
15-13 amended by adding Subsection (g) to read as follows:
15-14 (g) It is the goal of this state to establish at least one
15-15 special officer for mental health assignment in each county. To
15-16 achieve this goal, the department shall assist a local law
15-17 enforcement agency that desires to have an officer certified under
15-18 Section 415.037, Government Code.
15-19 SECTION 20. Section 574.045, Health and Safety Code, is
15-20 amended by amending Subsection (a) and by adding Subsections (e),
15-21 (f), and (g) to read as follows:
15-22 (a) The court may authorize the transportation of a
15-23 committed patient to the designated mental health facility by:
15-24 (1) a relative or other responsible person who has a
15-25 proper interest in the patient's welfare and who receives no
15-26 remuneration, except for actual and necessary expenses;
15-27 (2) the facility administrator of the designated
16-1 mental health facility, if the administrator notifies the court
16-2 that facility personnel are available to transport the patient;
16-3 <or>
16-4 (3) a special officer for mental health assignment
16-5 certified under Section 415.037, Government Code; or
16-6 (4) the sheriff or constable, if no person is
16-7 available under Subdivision (1), <or> (2), or (3).
16-8 (e) The patient may not be transported with a state
16-9 prisoner.
16-10 (f) The patient may not be physically restrained unless
16-11 necessary to protect the health and safety of the patient or of a
16-12 person traveling with the patient. If the treating physician or
16-13 the person transporting a patient determines that physical
16-14 restraint of the patient is necessary, that person shall document
16-15 the reasons for that determination and the duration for which the
16-16 restraints are needed. The person transporting the patient shall
16-17 deliver the document to the facility at the time the patient is
16-18 delivered. The facility shall include the document in the
16-19 patient's clinical record.
16-20 (g) The person transporting the patient shall give the
16-21 patient reasonable opportunities to get food and water and to use a
16-22 bathroom.
16-23 SECTION 21. This Act takes effect September 1, 1993, and
16-24 applies to a proceeding relating to a person with mental
16-25 retardation that begins on or after that date. A proceeding that
16-26 begins before the effective date of this Act is governed by the law
16-27 in existence on the date the proceeding began, and that law is
17-1 continued in effect for that purpose.
17-2 SECTION 22. The importance of this legislation and the
17-3 crowded condition of the calendars in both houses create an
17-4 emergency and an imperative public necessity that the
17-5 constitutional rule requiring bills to be read on three several
17-6 days in each house be suspended, and this rule is hereby suspended.