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