1-1 By: Naishtat, Junell, Schechter, et al. H.B. No. 771
1-2 (Senate Sponsor - Madla)
1-3 (In the Senate - Received from the House March 22, 1993;
1-4 March 23, 1993, read first time and referred to Committee on Health
1-5 and Human Services; April 13, 1993, reported favorably by the
1-6 following vote: Yeas 9, Nays 0; April 13, 1993, sent to printer.)
1-7 COMMITTEE VOTE
1-8 Yea Nay PNV Absent
1-9 Zaffirini x
1-10 Ellis x
1-11 Madla x
1-12 Moncrief x
1-13 Nelson x
1-14 Patterson x
1-15 Shelley x
1-16 Truan x
1-17 Wentworth x
1-18 A BILL TO BE ENTITLED
1-19 AN ACT
1-20 relating to treatment and care of persons with mental retardation.
1-21 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-22 SECTION 1. Sections 591.003(8), (14), and (16), Health and
1-23 Safety Code, are amended to read as follows:
1-24 (8) "Interdisciplinary team" means a group of mental
1-25 retardation professionals and paraprofessionals who assess the
1-26 treatment, training, and habilitation needs of a person with mental
1-27 retardation and make recommendations for services for that person
1-28 <"Diagnosis and evaluation team" means a group of persons with
1-29 special training and experience in the diagnosis, management, and
1-30 needs of persons with mental retardation and that performs a
1-31 comprehensive diagnosis and evaluation>.
1-32 (14) "Mental retardation services" means programs and
1-33 assistance for persons with mental retardation that may include a
1-34 determination of mental retardation, interdisciplinary team
1-35 recommendations <diagnosis and evaluation>, education, special
1-36 training, supervision, care, treatment, rehabilitation, residential
1-37 care, and counseling, but does not include those services or
1-38 programs that have been explicitly delegated by law to other state
1-39 agencies.
1-40 (16) "Person with mental retardation" means a person
1-41 determined by a physician or psychologist licensed in this state or
1-42 certified by the department <comprehensive diagnosis and
1-43 evaluation> to have subaverage general intellectual functioning
1-44 with deficits in adaptive behavior.
1-45 SECTION 2. Sections 592.018, 592.019, and 592.020, Health
1-46 and Safety Code, are amended to read as follows:
1-47 Sec. 592.018. Determination of Mental Retardation <Diagnosis
1-48 and Evaluation>. A person thought to be a person with mental
1-49 retardation has the right promptly to receive a determination of
1-50 mental retardation using diagnostic techniques that are
1-51 <comprehensive diagnosis and evaluation> adapted to that person's
1-52 cultural background, language, and ethnic origin to determine if
1-53 the person is in need of mental retardation services as provided by
1-54 Subchapter A, Chapter 593.
1-55 Sec. 592.019. Administrative Hearing. A person who files an
1-56 application for a determination of mental retardation
1-57 <comprehensive diagnosis and evaluation> has the right to request
1-58 and promptly receive an administrative hearing under Subchapter A,
1-59 Chapter 593, to contest the findings of the determination of mental
1-60 retardation <diagnosis and evaluation team and to determine
1-61 eligibility for mental retardation services>.
1-62 Sec. 592.020. INDEPENDENT DETERMINATION OF MENTAL
1-63 RETARDATION <DIAGNOSIS AND EVALUATION>. A person for <on> whom a
1-64 determination of mental retardation <comprehensive diagnosis and
1-65 evaluation> is performed or a person who files an application for a
1-66 determination of mental retardation <diagnosis and evaluation>
1-67 under Section 593.004 and who questions the validity or results of
1-68 the determination of mental retardation <comprehensive diagnosis
2-1 and evaluation,> has the right to an additional, independent
2-2 determination of mental retardation <diagnosis and evaluation>
2-3 performed at the person's own expense.
2-4 SECTION 3. Section 592.033(a), Health and Safety Code, is
2-5 amended to read as follows:
2-6 (a) Each client has the right to a written, individualized
2-7 habilitation plan developed by appropriate specialists <and based
2-8 on the relevant results of the comprehensive diagnosis and
2-9 evaluation>.
2-10 SECTION 4. Section 592.034(c), Health and Safety Code, is
2-11 amended to read as follows:
2-12 (c) Each client has the right to a periodic reassessment
2-13 <comprehensive rediagnosis and reevaluation>.
2-14 SECTION 5. Section 593.002(b), Health and Safety Code, is
2-15 amended to read as follows:
2-16 (b) The department or community center may provide
2-17 nonresidential mental retardation services, including a
2-18 determination of mental retardation <comprehensive diagnosis and
2-19 evaluation>, to a client without the client's legally adequate
2-20 consent if the department or community center has made all
2-21 reasonable efforts to obtain consent.
2-22 SECTION 6. Sections 593.003-593.007, Health and Safety Code,
2-23 are amended to read as follows:
2-24 Sec. 593.003. REQUIREMENT OF DETERMINATION OF MENTAL
2-25 RETARDATION <DIAGNOSIS AND EVALUATION>. (a) Except as provided by
2-26 Sections 593.027, 593.0275, and 593.028, a person is not eligible
2-27 to receive mental retardation services unless the person first is
2-28 determined to have mental retardation <receives a comprehensive
2-29 diagnosis and evaluation to determine the person's need and
2-30 eligibility for services>.
2-31 (b) <Except as provided by Sections 593.027 and 593.028, a
2-32 person is not eligible for voluntary admission for mental
2-33 retardation services under Subchapter B unless a comprehensive
2-34 diagnosis and evaluation has been performed or revised during the
2-35 three months preceding the date of initial admission for services.>
2-36 <(c) A person may not be committed to a residential care
2-37 facility under Subchapter C unless a comprehensive diagnosis and
2-38 evaluation has been performed or revised during the six months
2-39 preceding the date of the court hearing on the application. If a
2-40 comprehensive diagnosis and evaluation has not been completed or
2-41 revised during that period, the court shall order one on receiving
2-42 the application.>
2-43 <(d)> This section does not apply to an eligible child with
2-44 a developmental disability receiving services under Subchapter A,
2-45 Chapter 535.
2-46 Sec. 593.004. Application for Determination of Mental
2-47 Retardation <Diagnosis and Evaluation>. A person believed to be a
2-48 person with mental retardation, the parent if the person is a
2-49 minor, or the guardian of the person may make written application
2-50 to the department, a community center, a physician, or a
2-51 psychologist licensed to practice in this state or certified by the
2-52 department for a determination of mental retardation <for a
2-53 comprehensive diagnosis and evaluation> using forms provided by the
2-54 department.
2-55 Sec. 593.005. Determination of Mental Retardation
2-56 <Comprehensive Diagnosis and Evaluation>. (a) A physician or
2-57 psychologist licensed to practice in this state or certified by the
2-58 department shall perform the determination of mental retardation.
2-59 The department may charge a reasonable fee for certifying a
2-60 psychologist <A comprehensive diagnosis and evaluation is a study
2-61 of a person believed to be a person with mental retardation that:>
2-62 <(1) is conducted by a diagnosis and evaluation team;
2-63 and>
2-64 <(2) leads to conclusions and recommendations
2-65 formulated jointly, with dissenting opinions if any, by the
2-66 diagnosis and evaluation team>.
2-67 (b) The physician or psychologist shall base the
2-68 determination on an interview with the person and on a professional
2-69 assessment that, at a minimum, includes:
2-70 (1) a measure of the person's intellectual
3-1 functioning;
3-2 (2) a determination of the person's adaptive behavior
3-3 level; and
3-4 (3) evidence of origination during the person's
3-5 developmental period <The study must include:>
3-6 <(1) a social and medical history;>
3-7 <(2) a sequence of medical, neurological,
3-8 audiological, visual, educational, appropriate psychological, and
3-9 sociological examinations and observations; and>
3-10 <(3) an examination of the person's adaptive behavior
3-11 level>.
3-12 (c) The physician or psychologist may use a previous
3-13 assessment, social history, or relevant record from a school
3-14 district, public or private agency, or another physician or
3-15 psychologist if the physician or psychologist determines that the
3-16 assessment, social history, or record is valid <A diagnosis and
3-17 evaluation team may include only individuals who are:>
3-18 <(1) certified under standards adopted by the
3-19 department; and>
3-20 <(2) qualified professionally in the fields necessary
3-21 to perform the comprehensive diagnosis and evaluation>.
3-22 (d) <Except as provided by Subsection (e), the evaluation
3-23 shall be performed at a facility that is:>
3-24 <(1) approved by the department to conduct
3-25 comprehensive diagnoses and evaluations; and>
3-26 <(2) nearest to the home of the person being
3-27 evaluated.>
3-28 <(e)> If the person is indigent, the determination of mental
3-29 retardation <comprehensive diagnosis and evaluation> shall be
3-30 performed at the department's expense by a physician or
3-31 psychologist licensed in this state or certified <at a facility
3-32 designated> by the department.
3-33 Sec. 593.006. Report. <(a) The diagnosis and evaluation
3-34 team shall prepare a written report of a proposed client's
3-35 comprehensive diagnosis and evaluation that:>
3-36 <(1) includes:>
3-37 <(A) a summary of the team's findings;>
3-38 <(B) recommendations for mental retardation
3-39 services needed by the proposed client, if any; and>
3-40 <(C) recommendations of desirable or appropriate
3-41 programs or placement consistent with the needs of the proposed
3-42 client; and>
3-43 <(2) is signed by each team member.>
3-44 <(b) If a court has ordered the comprehensive diagnosis and
3-45 evaluation under Section 593.003, the department shall promptly
3-46 send a copy of the report to the court and to the proposed client
3-47 or the proposed client's legal representative.>
3-48 <(c)> A person who files an application for a determination
3-49 of mental retardation <comprehensive diagnosis and evaluation>
3-50 under Section 593.004 shall be promptly notified in writing of the
3-51 <team's> findings <and recommendations>.
3-52 Sec. 593.007. Notification of Certain Rights. The
3-53 department shall inform the person who filed an application for a
3-54 determination of mental retardation <comprehensive diagnosis and
3-55 evaluation> of the person's right to:
3-56 (1) an independent determination of mental retardation
3-57 <diagnosis and evaluation> under Section 592.020; and
3-58 (2) an administrative hearing under Section 593.008 by
3-59 the agency that conducted the determination of mental retardation
3-60 <diagnosis and evaluation> to contest the <team's> findings <or
3-61 recommendations>.
3-62 SECTION 7. Section 593.008(b), Health and Safety Code, is
3-63 amended to read as follows:
3-64 (b) The proposed client, contestant, and their respective
3-65 representative by right may:
3-66 (1) have reasonable access at a reasonable time before
3-67 the hearing to any records concerning the proposed client relevant
3-68 to the proposed action;
3-69 (2) present oral or written testimony and evidence,
3-70 including the results of an independent determination of mental
4-1 retardation <diagnosis and evaluation>; and
4-2 (3) examine witnesses.
4-3 SECTION 8. Subchapter A, Chapter 593, Health and Safety
4-4 Code, is amended by adding Section 593.013 to read as follows:
4-5 Sec. 593.013. REQUIREMENT OF INTERDISCIPLINARY TEAM
4-6 RECOMMENDATION. (a) A person may not be admitted or committed to
4-7 a residential care facility unless an interdisciplinary team
4-8 recommends that placement.
4-9 (b) An interdisciplinary team shall:
4-10 (1) interview the person with mental retardation, the
4-11 person's parent if the person is a minor, and the person's
4-12 guardian;
4-13 (2) review the person's:
4-14 (A) social and medical history;
4-15 (B) medical assessment, which shall include an
4-16 audiological, neurological, and vision screening;
4-17 (C) psychological and social assessment; and
4-18 (D) determination of adaptive behavior level;
4-19 (3) determine the person's need for additional
4-20 assessments, including educational and vocational assessments;
4-21 (4) obtain any additional assessment necessary to plan
4-22 services;
4-23 (5) identify the person's habilitation and service
4-24 preferences and needs; and
4-25 (6) recommend services to address the person's needs
4-26 that consider the person's preferences.
4-27 (c) The interdisciplinary team shall give the person, the
4-28 person's parent if the person is a minor, and the person's guardian
4-29 an opportunity to participate in team meetings.
4-30 (d) The interdisciplinary team may use a previous
4-31 assessment, social history, or other relevant record from a school
4-32 district, public or private agency, or appropriate professional if
4-33 the interdisciplinary team determines that the assessment, social
4-34 history, or record is valid.
4-35 (e) The interdisciplinary team shall prepare a written
4-36 report of its findings and recommendations that is signed by each
4-37 team member and shall promptly send a copy of the report and
4-38 recommendations to the person, the person's parent if the person is
4-39 a minor, and the person's guardian.
4-40 (f) If the court has ordered the interdisciplinary team
4-41 report and recommendations under Section 593.041, the team shall
4-42 promptly send a copy of the report and recommendations to the
4-43 court, the person with mental retardation or the person's legal
4-44 representative, the person's parent if the person is a minor, and
4-45 the person's guardian.
4-46 SECTION 9. Sections 593.021 and 593.027, Health and Safety
4-47 Code, are amended to read as follows:
4-48 Sec. 593.021. Application for Voluntary Services. The <If
4-49 the diagnosis and evaluation team recommends services, the>
4-50 proposed client, the parent if the proposed client is a minor, or
4-51 the guardian of the person may apply for voluntary mental
4-52 retardation services under Section 593.022 or 593.024.
4-53 Sec. 593.027. Emergency Admission. (a) An emergency
4-54 admission to a residential care facility is permitted without a
4-55 determination of mental retardation and an interdisciplinary team
4-56 recommendation <comprehensive diagnosis and evaluation> if:
4-57 (1) there is persuasive evidence that the proposed
4-58 resident is a person with mental retardation;
4-59 (2) space is available at the facility for which
4-60 placement is requested;
4-61 (3) the proposed resident has an urgent need for
4-62 services that the facility superintendent determines the facility
4-63 provides; and
4-64 (4) the facility can provide relief for the urgent
4-65 need within a year after admission.
4-66 (b) A determination of mental retardation and an
4-67 interdisciplinary team recommendation for <comprehensive diagnosis
4-68 and evaluation of> the person admitted under this section shall be
4-69 performed within 30 days after the date of admission.
4-70 SECTION 10. Subchapter B, Chapter 593, Health and Safety
5-1 Code, is amended by adding Section 593.0275 to read as follows:
5-2 Sec. 593.0275. EMERGENCY SERVICES. (a) A person may
5-3 receive emergency services without a determination of mental
5-4 retardation if:
5-5 (1) there is persuasive evidence that the person is a
5-6 person with mental retardation;
5-7 (2) emergency services are available; and
5-8 (3) the person has an urgent need for emergency
5-9 services.
5-10 (b) A determination of mental retardation for the person
5-11 served under this section shall be performed within 30 days after
5-12 the date the services begin.
5-13 SECTION 11. Section 593.028(a), Health and Safety Code, is
5-14 amended to read as follows:
5-15 (a) A person may be admitted to a residential care facility
5-16 for respite care without a determination of mental retardation and
5-17 interdisciplinary team recommendation <comprehensive diagnosis and
5-18 evaluation> if:
5-19 (1) there is persuasive evidence that the proposed
5-20 resident is a person with mental retardation;
5-21 (2) space is available at the facility for which
5-22 respite care is requested;
5-23 (3) the facility superintendent determines that the
5-24 facility provides services that meet the needs of the proposed
5-25 resident; and
5-26 (4) the proposed resident or the proposed resident's
5-27 family urgently requires assistance or relief that can be provided
5-28 within a period not to exceed 30 consecutive days after the date of
5-29 admission.
5-30 SECTION 12. Section 593.041, Health and Safety Code, is
5-31 amended by amending Subsection (a) and adding Subsection (d) to
5-32 read as follows:
5-33 (a) A proposed resident, if an adult, a parent if the
5-34 proposed resident is a minor, the guardian of the person, the
5-35 court, or any other interested person, including a community center
5-36 or agency that conducted a determination of mental retardation
5-37 <diagnosis and evaluation> of the proposed resident, may file an
5-38 application for an interdisciplinary team report and recommendation
5-39 <a determination> that the proposed client is in need of long-term
5-40 placement in a residential care facility.
5-41 (d) A person may not be committed to the department for
5-42 placement in a residential care facility under this subchapter
5-43 unless a report by an interdisciplinary team recommending the
5-44 placement has been completed during the six months preceding the
5-45 date of the court hearing on the application. If the report and
5-46 recommendations have not been completed or revised during that
5-47 period, the court shall order the report and recommendations on
5-48 receiving the application.
5-49 SECTION 13. Section 593.042(b), Health and Safety Code, is
5-50 amended to read as follows:
5-51 (b) If the <diagnosis and evaluation> report required under
5-52 Section 593.013 <593.006> is completed, a copy must be included in
5-53 the application.
5-54 SECTION 14. Section 593.048, Health and Safety Code, is
5-55 amended to read as follows:
5-56 Sec. 593.048. Hearing Notice. (a) Not later than the 11th
5-57 day before the date set for the hearing, a copy of the application,
5-58 notice of the time and place of the hearing and, if appropriate,
5-59 the order for the determination of mental retardation and
5-60 interdisciplinary team report and recommendations <comprehensive
5-61 diagnosis and evaluation> shall be served on:
5-62 (1) the proposed resident or the proposed resident's
5-63 representative;
5-64 (2) the parent if the proposed resident is a minor;
5-65 (3) the guardian of the person; and
5-66 (4) the department.
5-67 (b) The notice must specify in plain and simple language:
5-68 (1) the right to an independent determination of
5-69 mental retardation <diagnosis and evaluation> under Section
5-70 593.007; and
6-1 (2) the provisions of Sections 593.043, 593.047,
6-2 593.049, 593.050, and 593.053.
6-3 SECTION 15. Section 593.050(d), Health and Safety Code, is
6-4 amended to read as follows:
6-5 (d) The Texas Rules of Civil Evidence apply. The results of
6-6 the determination of mental retardation and the current
6-7 interdisciplinary team report and recommendations <diagnosis and
6-8 evaluation> shall be presented in evidence.
6-9 SECTION 16. Sections 594.001(b) and (c), Health and Safety
6-10 Code, are amended to read as follows:
6-11 (b) This chapter does not apply to the:
6-12 (1) transfer of a client for emergency medical,
6-13 dental, or psychiatric care for not more than 30 consecutive days;
6-14 (2) voluntary withdrawal of a client from mental
6-15 retardation services; or
6-16 (3) discharge of a client by a superintendent or
6-17 director because the person is not a person with mental retardation
6-18 according to the results of the determination of mental retardation
6-19 <comprehensive diagnosis and evaluation>.
6-20 (c) A discharge under Subsection (b)(3) is without further
6-21 hearings, unless an administrative hearing under Subchapter A,
6-22 Chapter 593, to contest the determination of mental retardation
6-23 <comprehensive diagnosis and evaluation> is requested.
6-24 SECTION 17. Section 613.005(b), Health and Safety Code, is
6-25 amended to read as follows:
6-26 (b) If the court considers it necessary, the court may order
6-27 the performance of a determination of mental retardation
6-28 <comprehensive diagnosis and evaluation>, as provided by Section
6-29 593.005, to help the court evaluate the ward's capacity to agree to
6-30 the donation.
6-31 SECTION 18. This Act takes effect September 1, 1993, and
6-32 applies to a proceeding relating to a person with mental
6-33 retardation that begins on or after that date. A proceeding that
6-34 begins before the effective date of this Act is governed by the law
6-35 in existence on the date the proceeding began, and that law is
6-36 continued in effect for that purpose.
6-37 SECTION 19. The importance of this legislation and the
6-38 crowded condition of the calendars in both houses create an
6-39 emergency and an imperative public necessity that the
6-40 constitutional rule requiring bills to be read on three several
6-41 days in each house be suspended, and this rule is hereby suspended.
6-42 * * * * *
6-43 Austin,
6-44 Texas
6-45 April 13, 1993
6-46 Hon. Bob Bullock
6-47 President of the Senate
6-48 Sir:
6-49 We, your Committee on Health and Human Services to which was
6-50 referred H.B. No. 771, have had the same under consideration, and I
6-51 am instructed to report it back to the Senate with the
6-52 recommendation that it do pass and be printed.
6-53 Zaffirini,
6-54 Chair
6-55 * * * * *
6-56 WITNESSES
6-57 FOR AGAINST ON
6-58 ___________________________________________________________________
6-59 Name: Frank R. Santos x x
6-60 Representing: Tx Medical Assn
6-61 City: Austin
6-62 -------------------------------------------------------------------
6-63 Name: Jaylon Fincannon x x
6-64 Representing: Tx MHMR
6-65 City: Austin
6-66 -------------------------------------------------------------------
6-67 Name: Mike Bright x x
6-68 Representing: Assn for Retarded Citizens
6-69 City: Austin
6-70 -------------------------------------------------------------------
7-1 Name: Robin Herskowitz x x
7-2 Representing: Private Provider Assn
7-3 City: Austin
7-4 -------------------------------------------------------------------
7-5 Name: Mary Jo Magrveler x
7-6 Representing: Tx Planning Council Disabilit
7-7 City: Austin
7-8 -------------------------------------------------------------------
7-9 Name: Barrett Markland x x
7-10 Representing: Advocacy Inc.
7-11 City: Austin
7-12 -------------------------------------------------------------------
7-13 FOR AGAINST ON
7-14 ___________________________________________________________________
7-15 Name: Jan S. Thompson x x
7-16 Representing: Tx Health Care Assn
7-17 City: Austin
7-18 -------------------------------------------------------------------
7-19 Name: Ruth Snyder x
7-20 Representing: Assn for Retarded of Texas
7-21 City: Austin
7-22 -------------------------------------------------------------------