By:  Naishtat                                          H.B. No. 771
       73R2377 CBH-F
                                 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 psychologist licensed in this state or certified by
   1-24  the department <comprehensive diagnosis and evaluation> to have
    2-1  subaverage general intellectual functioning with deficits in
    2-2  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, or a psychologist licensed
   4-23  to practice in this state or certified by the department for a
   4-24  determination of mental retardation <for a comprehensive diagnosis
   4-25  and evaluation> using forms provided by the department.
   4-26        Sec. 593.005.  Determination of Mental Retardation
   4-27  <Comprehensive Diagnosis and Evaluation>.  (a)  A psychologist
    5-1  licensed to practice in this state or certified by the department
    5-2  shall perform the determination of mental retardation.  The
    5-3  department may charge a reasonable fee for certifying a
    5-4  psychologist <A comprehensive diagnosis and evaluation is a study
    5-5  of a person believed to be a person with mental retardation that:>
    5-6              <(1)  is conducted by a diagnosis and evaluation team;
    5-7  and>
    5-8              <(2)  leads to conclusions and recommendations
    5-9  formulated jointly, with dissenting opinions if any, by the
   5-10  diagnosis and evaluation team>.
   5-11        (b)  The psychologist shall base the determination on an
   5-12  interview with the person and on a professional assessment that, at
   5-13  a minimum, includes:
   5-14              (1)  a measure of the person's intellectual
   5-15  functioning;
   5-16              (2)  a determination of the person's adaptive behavior
   5-17  level; and
   5-18              (3)  evidence of origination during the person's
   5-19  developmental period <The study must include:>
   5-20              <(1)  a social and medical history;>
   5-21              <(2)  a sequence of medical, neurological,
   5-22  audiological, visual, educational, appropriate psychological, and
   5-23  sociological examinations and observations; and>
   5-24              <(3)  an examination of the person's adaptive behavior
   5-25  level>.
   5-26        (c)  The psychologist may use a previous assessment, social
   5-27  history, or relevant record from a school district, public or
    6-1  private agency, or another psychologist if the psychologist
    6-2  determines that the assessment, social history, or record is valid
    6-3  <A diagnosis and evaluation team may include only individuals who
    6-4  are:>
    6-5              <(1)  certified under standards adopted by the
    6-6  department; and>
    6-7              <(2)  qualified professionally in the fields necessary
    6-8  to perform the comprehensive diagnosis and evaluation>.
    6-9        (d)  <Except as provided by Subsection (e), the evaluation
   6-10  shall be performed at a facility that is:>
   6-11              <(1)  approved by the department to conduct
   6-12  comprehensive diagnoses and evaluations; and>
   6-13              <(2)  nearest to the home of the person being
   6-14  evaluated.>
   6-15        <(e)>  If the person is indigent, the determination of mental
   6-16  retardation <comprehensive diagnosis and evaluation> shall be
   6-17  performed at the department's expense by a psychologist licensed in
   6-18  this state or certified <at a facility designated> by the
   6-19  department.
   6-20        Sec. 593.006.  Report.  <(a)  The diagnosis and evaluation
   6-21  team shall prepare a written report of a proposed client's
   6-22  comprehensive diagnosis and evaluation that:>
   6-23              <(1)  includes:>
   6-24                    <(A)  a summary of the team's findings;>
   6-25                    <(B)  recommendations for mental retardation
   6-26  services needed by the proposed client, if any; and>
   6-27                    <(C)  recommendations of desirable or appropriate
    7-1  programs or placement consistent with the needs of the proposed
    7-2  client; and>
    7-3              <(2)  is signed by each team member.>
    7-4        <(b)  If a court has ordered the comprehensive diagnosis and
    7-5  evaluation under Section 593.003, the department shall promptly
    7-6  send a copy of the report to the court and to the proposed client
    7-7  or the proposed client's legal representative.>
    7-8        <(c)>  A person who files an application for a determination
    7-9  of mental retardation <comprehensive diagnosis and evaluation>
   7-10  under Section 593.004 shall be promptly notified in writing of the
   7-11  <team's> findings <and recommendations>.
   7-12        Sec. 593.007.  Notification of Certain Rights.  The
   7-13  department shall inform the person who filed an application for a
   7-14  determination of mental retardation <comprehensive diagnosis and
   7-15  evaluation> of the person's right to:
   7-16              (1)  an independent determination of mental retardation
   7-17  <diagnosis and evaluation> under Section 592.020; and
   7-18              (2)  an administrative hearing under Section 593.008 by
   7-19  the agency that conducted the determination of mental retardation
   7-20  <diagnosis and evaluation> to contest the <team's> findings <or
   7-21  recommendations>.
   7-22        SECTION 7.  Section 593.008(b), Health and Safety Code, is
   7-23  amended to read as follows:
   7-24        (b)  The proposed client, contestant, and their respective
   7-25  representative by right may:
   7-26              (1)  have reasonable access at a reasonable time before
   7-27  the hearing to any records concerning the proposed client relevant
    8-1  to the proposed action;
    8-2              (2)  present oral or written testimony and evidence,
    8-3  including the results of an independent determination of mental
    8-4  retardation <diagnosis and evaluation>; and
    8-5              (3)  examine witnesses.
    8-6        SECTION 8.  Subchapter A, Chapter 593, Health and Safety
    8-7  Code, is amended by adding Section 593.013 to read as follows:
    8-8        Sec. 593.013.  REQUIREMENT OF INTERDISCIPLINARY TEAM
    8-9  RECOMMENDATION.  (a)  A person may not be admitted or committed to
   8-10  a residential care facility unless an interdisciplinary team
   8-11  recommends that placement.
   8-12        (b)  An interdisciplinary team shall:
   8-13              (1)  interview the person with mental retardation, the
   8-14  person's parent if the person is a minor, and the person's
   8-15  guardian;
   8-16              (2)  review the person's:
   8-17                    (A)  social and medical history;
   8-18                    (B)  medical assessment, which shall include an
   8-19  audiological, neurological, and vision screening;
   8-20                    (C)  psychological and social assessment; and
   8-21                    (D)  determination of adaptive behavior level;
   8-22              (3)  determine the person's need for additional
   8-23  assessments, including educational and vocational assessments;
   8-24              (4)  obtain any additional assessment necessary to plan
   8-25  services;
   8-26              (5)  identify the person's habilitation and service
   8-27  preferences and needs; and
    9-1              (6)  recommend services to address the person's needs
    9-2  that consider the person's preferences.
    9-3        (c)  The interdisciplinary team shall give the person, the
    9-4  person's parent if the person is a minor, and the person's guardian
    9-5  an opportunity to participate in team meetings.
    9-6        (d)  The interdisciplinary team may use a previous
    9-7  assessment, social history, or other relevant record from a school
    9-8  district, public or private agency, or appropriate professional if
    9-9  the interdisciplinary team determines that the assessment, social
   9-10  history, or record is valid.
   9-11        (e)  The interdisciplinary team shall prepare a written
   9-12  report of its findings and recommendations that is signed by each
   9-13  team member and shall promptly send a copy of the report and
   9-14  recommendations to the person, the person's parent if the person is
   9-15  a minor, and the person's guardian.
   9-16        (f)  If the court has ordered the interdisciplinary team
   9-17  report and recommendations under Section 593.041, the team shall
   9-18  promptly send a copy of the report and recommendations to the
   9-19  court, the person with mental retardation or the person's legal
   9-20  representative, the person's parent if the person is a minor, and
   9-21  the person's guardian.
   9-22        SECTION 9.  Sections 593.021 and 593.027, Health and Safety
   9-23  Code, are amended to read as follows:
   9-24        Sec. 593.021.  Application for Voluntary Services.  The <If
   9-25  the diagnosis and evaluation team recommends services, the>
   9-26  proposed client, the parent if the proposed client is a minor, or
   9-27  the guardian of the person may apply for voluntary mental
   10-1  retardation services under Section 593.022 or 593.024.
   10-2        Sec. 593.027.  Emergency Admission.  (a)  An emergency
   10-3  admission to a residential care facility is permitted without a
   10-4  determination of mental retardation and an interdisciplinary team
   10-5  recommendation <comprehensive diagnosis and evaluation> if:
   10-6              (1)  there is persuasive evidence that the proposed
   10-7  resident is a person with mental retardation;
   10-8              (2)  space is available at the facility for which
   10-9  placement is requested;
  10-10              (3)  the proposed resident has an urgent need for
  10-11  services that the facility superintendent determines the facility
  10-12  provides; and
  10-13              (4)  the facility can provide relief for the urgent
  10-14  need within a year after admission.
  10-15        (b)  A determination of mental retardation and an
  10-16  interdisciplinary team recommendation for <comprehensive diagnosis
  10-17  and evaluation of> the person admitted under this section shall be
  10-18  performed within 30 days after the date of admission.
  10-19        SECTION 10.  Subchapter B, Chapter 593, Health and Safety
  10-20  Code, is amended by adding Section 593.0275 to read as follows:
  10-21        Sec. 593.0275.  EMERGENCY SERVICES.  (a)  A person may
  10-22  receive emergency services without a determination of mental
  10-23  retardation if:
  10-24              (1)  there is persuasive evidence that the person is a
  10-25  person with mental retardation;
  10-26              (2)  emergency services are available; and
  10-27              (3)  the person has an urgent need for emergency
   11-1  services.
   11-2        (b)  A determination of mental retardation for the person
   11-3  served under this section shall be performed within 30 days after
   11-4  the date the services begin.
   11-5        SECTION 11.  Section   593.028(a), Health and Safety Code, is
   11-6  amended to read as follows:
   11-7        (a)  A person may be admitted to a residential care facility
   11-8  for respite care without a determination of mental retardation and
   11-9  interdisciplinary team recommendation <comprehensive diagnosis and
  11-10  evaluation> if:
  11-11              (1)  there is persuasive evidence that the proposed
  11-12  resident is a person with mental retardation;
  11-13              (2)  space is available at the facility for which
  11-14  respite care is requested;
  11-15              (3)  the facility superintendent determines that the
  11-16  facility provides services that meet the needs of the proposed
  11-17  resident; and
  11-18              (4)  the proposed resident or the proposed resident's
  11-19  family urgently requires assistance or relief that can be provided
  11-20  within a period not to exceed 30 consecutive days after the date of
  11-21  admission.
  11-22        SECTION 12.  Section 593.041, Health and Safety Code, is
  11-23  amended by amending Subsection (a) and adding Subsection (d) to
  11-24  read as follows:
  11-25        (a)  A proposed resident, if an adult, a parent if the
  11-26  proposed resident is a minor, the guardian of the person, the
  11-27  court, or any other interested person, including a community center
   12-1  or agency that conducted a determination of mental retardation
   12-2  <diagnosis and evaluation> of the proposed resident, may file an
   12-3  application for an interdisciplinary team report and recommendation
   12-4  <a determination> that the proposed client is in need of long-term
   12-5  placement in a residential care facility.
   12-6        (d)  A person may not be committed to the department for
   12-7  placement in a residential care facility under this subchapter
   12-8  unless a report by an interdisciplinary team recommending the
   12-9  placement has been completed during the six months preceding the
  12-10  date of the court hearing on the application.  If the report and
  12-11  recommendations have not been completed or revised during that
  12-12  period, the court shall order the report and recommendations on
  12-13  receiving the application.
  12-14        SECTION 13.  Section 593.042(b), Health and Safety Code, is
  12-15  amended to read as follows:
  12-16        (b)  If the <diagnosis and evaluation> report required under
  12-17  Section 593.013 <593.006> is completed, a copy must be included in
  12-18  the application.
  12-19        SECTION 14.  Section 593.048, Health and Safety   Code, is
  12-20  amended to read as follows:
  12-21        Sec. 593.048.  Hearing Notice.  (a)  Not later than the 11th
  12-22  day before the date set for the hearing, a copy of the application,
  12-23  notice of the time and place of the hearing and, if appropriate,
  12-24  the order for the determination of mental retardation and
  12-25  interdisciplinary team report and recommendations <comprehensive
  12-26  diagnosis and evaluation> shall be served on:
  12-27              (1)  the proposed resident or the proposed resident's
   13-1  representative;
   13-2              (2)  the parent if the proposed resident is a minor;
   13-3              (3)  the guardian of the person; and
   13-4              (4)  the department.
   13-5        (b)  The notice must specify in plain and simple language:
   13-6              (1)  the right to an independent determination of
   13-7  mental retardation <diagnosis and evaluation> under Section
   13-8  593.007; and
   13-9              (2)  the provisions of Sections 593.043, 593.047,
  13-10  593.049, 593.050, and 593.053.
  13-11        SECTION 15.  Section 593.050(d), Health and Safety Code, is
  13-12  amended to read as follows:
  13-13        (d)  The Texas Rules of Civil Evidence apply.  The results of
  13-14  the determination of mental retardation and the current
  13-15  interdisciplinary team report and recommendations <diagnosis and
  13-16  evaluation> shall be presented in evidence.
  13-17        SECTION 16.  Sections 594.001(b) and (c), Health and Safety
  13-18  Code, are amended to read as follows:
  13-19        (b)  This chapter does not apply to the:
  13-20              (1)  transfer of a client for emergency medical,
  13-21  dental, or psychiatric care for not more than 30 consecutive days;
  13-22              (2)  voluntary withdrawal of a client from mental
  13-23  retardation services; or
  13-24              (3)  discharge of a client by a superintendent or
  13-25  director because the person is not a person with mental retardation
  13-26  according to the results of the determination of mental retardation
  13-27  <comprehensive diagnosis and evaluation>.
   14-1        (c)  A discharge under Subsection (b)(3) is without further
   14-2  hearings, unless an administrative hearing under Subchapter A,
   14-3  Chapter 593, to contest the determination of mental retardation
   14-4  <comprehensive diagnosis and evaluation> is requested.
   14-5        SECTION 17.  Section 613.005(b), Health and Safety Code, is
   14-6  amended to read as follows:
   14-7        (b)  If the court considers it necessary, the court may order
   14-8  the performance of a determination of mental retardation
   14-9  <comprehensive diagnosis and evaluation>, as provided by Section
  14-10  593.005, to help the court evaluate the ward's capacity to agree to
  14-11  the donation.
  14-12        SECTION 18.  This Act takes effect September 1, 1993, and
  14-13  applies to a proceeding relating to a person with mental
  14-14  retardation that begins on or after that date.  A proceeding that
  14-15  begins before the effective date of this Act is governed by the law
  14-16  in existence on the date the proceeding began, and that law is
  14-17  continued in effect for that purpose.
  14-18        SECTION 19.  The importance of this legislation and the
  14-19  crowded condition of the calendars in both houses create an
  14-20  emergency and an imperative public necessity that the
  14-21  constitutional rule requiring bills to be read on three several
  14-22  days in each house be suspended, and this rule is hereby suspended.