BG C.S.S.B. 305 75(R)BILL ANALYSIS PUBLIC HEALTH C.S.S.B. 305 By: Zaffirini (Berlanga) 3-19-97 Committee Report (Substituted) BACKGROUND The Interagency Council on Early Childhood Intervention Services (council) was created in 1981 and addresses intervention service issues such as successful intervention strategies, screening services, day and respite care services, public awareness, personnel preparation and continuing education, and contemporary research regarding developmental disabilities. The council is the primary state agency responsible for providing aid to children who are developmentally delayed. The council risks losing federal dollars if it does not adhere to the federal laws and guidelines which require states to provide childhood intervention services. PURPOSE C.S.S.B. 305 brings existing state statutes into conformity with federal law and compliance with federal mandates. The bill establishes eligibility for intervention services, changes the structure of the council, creates a board to govern the council, delineates the powers and duties of the board and council, and authorizes the board to obtain criminal records from various law enforcement agencies. RULEMAKING AUTHORITY It is the committee's opinion that this bill expressly grants additional rulemaking authority to the board of the Interagency Council on Early Childhood Intervention Services (council) in SECTION 2 (Section 73.002(h), Human Resources Code) and to the council in SECTION 9 (Section73.0051(b), Human Resources Code). SECTION BY SECTION ANALYSIS SECTION 1. Amends Section 73.001, Human Resources Code, as follows: Subsection (1) defines "board" as the board of the Interagency Council. Subsection (2) makes conforming changes and clarifies the definition of "council" as being the Interagency Council on Early Childhood Intervention by omitting the word services. Subsection (3) defines "developmental delay" as a significant variation in normal development as measured by appropriate specified diagnostic instruments and procedures; amends language pertaining to areas of development; deletes references to a developmentally delayed child and interdisciplinary determinations; and makes conforming changes. SECTION 2. Amends Section 73.002, Human Resources Code, newly entitled "BOARD," as follows: Subsection (a) establishes that the council is governed by a board appointed by the governor with the advice and consent of the senate; amends the composition of the governing body, establishing that it have eight lay members who are the family members of children with developmental delay and one member appointed by the commissioner of education who represents the Texas Education Agency (TEA); makes conforming and language changes. Subsection (b) requires nonvoting representatives to be appointed by the commissioner or executive head of certain specified agencies, to actively participate in board deliberations and advise on their particular agency's perspectives and concerns. Subsection (c) requires that five of the lay members of the board be parents of children who are receiving or have received early childhood intervention services. Requires that each state agency member or representative, appointed under Subsection (a) or (b), have administrative responsibility in their agency for early childhood intervention or related services, and requires them to have authority to make decisions and commit resources on behalf of the appointing agency. Makes conforming and language changes. Subsection (d) provides that the members of the board, appointed under Subsection (a), serve for staggered six-year terms as specified; provides that the representatives to the board, as per Subsection (b), serve at the will of the appointing authority. Stipulates that a ground for board removal is a member appointed by a state agency terminating employment with that agency. Makes conforming changes. Subsection (e) requires the members of the board to elect the presiding officer and assistant presiding officer. Requires officers to serve a two-year term. Makes conforming changes. Subsections (f) and (g) make conforming lettering and language changes. Subsection (h) makes language changes in the text by replacing "a policy" with the words "regulations, policies, and procedures" and requires that the board establish them to carry out the council duties. Makes conforming changes. Subsection (i) makes language changes in requiring that the board, rather than the council and funded programs, to develop a method for responding to complaints. Makes conforming changes. SECTION 3. Amends Chapter 73, Human Resources Code, by adding Section 73.0021, entitled "ELIGIBILITY REQUIREMENT FOR BOARD MEMBERSHIP," as follows: Subsection (a) requires that appointments to the board be made without regard to race, color, disability, sex, religion, age, or national origin. Subsection (b) provides specified criteria that establish a person ineligible for appointment as a board member. SECTION 4. Amends Chapter 73, Human Resources Code, by adding Section 73.0022, entitled "REMOVAL OF BOARD MEMBERS," as follows: Subsection (a) sets forth that ineligibility for appointment under Sec. 73.002 and the member's not maintaining the qualifications required by Sec. 73.002 during service on the board are grounds for removal. It is also a ground for removal if a member has or develops a conflicting interest; cannot discharge their duties for a substantial part of the term because of illness or disability; or is absent for more than half of the calendar year's regularly scheduled board meetings unless the absences are excused by a majority vote of the board. Subsection (b) provides that the validity of an action of the board is not affected by the fact it was taken when grounds for removal of a board member existed. Subsection (c) requires the executive director of the council to notify the presiding officer of the board if there is knowledge that a potential ground for removal exists. Requires the presiding officer to then notify the appropriate appointing authority of the potential removal action and cause. Subsection (d) requires the appointing authority to make a subsequent appointment if a board member is removed. SECTION 5. Amends Section 73.003, Human Resources Code, as follows: Sec. 73.003. STRATEGIC PLAN. Requires the council to develop and implement a strategic plan for a statewide system of early childhood intervention services, as required by Subchapter VIII, Individuals with Disabilities Education Act (IDEA) (20 U.S.C. Section 1471 et seq.). Makes conforming changes, rewording the section heading, deleting the subsection format and omitting specific plan requirements. Removes requirements regarding the council's written recommendations for the carrying out of these duties. SECTION 6. Amends Section 73.004, Human Resources Code, as follows: Subsection (b) changes the text to requires that the committee serve under the rules of the board, not the council. Replaces the word "chairperson" with the term "presiding officer". Subsection (c) adds the provision that the advisory committee is not subject to Article 6252-33, Revised Statutes. SECTION 7. Amends Chapter 73, Human Resources Code, by adding Section 73.0041, as follows: Sec. 73.0041. ADVISORY COMMITTEE DUTIES. Requires the advisory committee, established under Section 73.004, to perform the duties and responsibilities required of an advisory committee under IDEA, 20 U.S.C. Section 1471 et seq. SECTION 8. Amends Section 73.005, Human Resources Code, as follows: Sec. 73.005. BOARD POWERS AND DUTIES. Revises the heading language. Replaces the word "council" with the word "board". Clarifies that the board's required addressing of issues is with the advice of the advisory committee. Adds that the targets of specified intervention services are children, under three years of age, with developmental delay and the families of those children. Makes nonsubstantive language changes. SECTION 9. Amends Chapter 73, Human Resources Code, by adding Section 73.0051, entitled "POWERS AND DUTIES OF COUNCIL," as follows: Subsection (a) establishes that the council is the lead agency designated by the governor under IDEA for the administration, supervision, and monitoring of a comprehensive system of early intervention services that ensure that all children, under the age of three, who have developmental needs or are at risk of developmental delay, receive provided services in partnership with their families and within the context of their local community. Subsection (b) requires the council, by rule, to: (1) provide for compliance with the terms and provisions of applicable federal and state laws in the administration of programs and the delivery of services; (2) establish a program to monitor fiscal and program implementation; (3) establish appropriate sanctions for providers who fail to comply with statutory and regulatory fiscal and program requirements. Subsection (c) allows the council to enter into, administer, and monitor contracts with providers for programs and projects authorized under this chapter. Subsection (d) requires the council to periodically monitor the program activities and fiscal performance of funded entities, as specified. Subsection (e) allows the council to apply for and accept gifts, grants, and donations from public and private sources for use in programs authorized under this chapter. Requires the council to deposit money received under this section into the state treasury. Subsection (f) requires the council to cooperate with the Health and Human Services Commission (HHSC) and other local, state, and federal agencies in planning, funding, delivery, and monitoring authorized services. Subsection (g) requires the council to make periodic reports, as required by law, to other agencies, the legislature, appropriate committees, the governor, and the Secretary of the United States Department of Education. Subsection (h) requires the council to ensure that all programs and council functions are conducted in a nondiscriminatory manner. SECTION 10. Amends Chapter 73, Human Resources Code, by adding Section 73.0052, entitled "PERSONNEL MATTERS," as follows: Subsection (a) requires the board to provide to its members and employees of the council, as often as necessary, information regarding their qualifications as specified and their responsibilities under applicable laws relating to state officers or employees. Subsection (b) requires the board to employ an executive director. Requires the executive director to establish necessary administrative units, and hire other necessary employees. Subsection (c) requires the board to evaluate the performance of the executive director annually, utilizing established standards. Subsection (d) requires the executive director or the executive director's designee to develop an intra-agency career ladder program. Provides that employees be notified of all available positions. Stipulates that, when appropriate, postings be made available to council employees before public posting. Subsection (e) requires the executive director or the executive director's designee to develop a system of annual performance evaluations based on measurable job tasks. Requires that merit pay for council employees be based on the system established under this subsection. Subsection (f) requires the executive director or the executive director's designee to prepare and maintain a written policy to assure implementation of an equal employment opportunity program under which all personnel transactions are made without discrimination. The policy statement must include criteria as specified in this subsection. Subsection (g) requires the policy statement prepared under Subsection (f) to cover an annual period; be updated at least annually; and be filed with the governor. SECTION 11. Amends Section 73.006, Human Resources Code, as follows: Sec. 73.006. REIMBURSEMENT FOR EXPENSES. Subsection (a) provides that agency members on or representatives to the board and advisory committee are entitled to reimbursement as specified. Revises the title of the heading and makes nonsubstantive language changes. Subsection (b) clarifies that the lay members of the board and advisory committee are entitled to reimbursement. Replaces the word "actual" for reasonable in regards to necessary expenses incurred. Makes conforming and language changes. Subsection (c) replaces language so as to require agencies which have a member or representative on the board to provide staff support to the council as needed. Makes conforming change. Subsection (d) is added to provide that a board member, nonvoting representative, or advisory committee member who is disabled is entitled to reimbursement for the cost of attendant care if required to perform the person's duties. Omits the subsection regarding the council's selection and employment of an early childhood intervention administrator. SECTION 12. Section 73.007, Human Resources Code, is amended as follows: Sec. 73.007. PUBLIC AWARENESS AND TRAINING. Adds language to the requirement regarding a public awareness strategy to emphasize early identification of infants and toddlers with developmental delay. Omits the clause regarding developmentally delayed children under six years of age. Replaces the term "regional training sessions" with " training and technical assistance" and adds that such training and assistance be for families and primary referral sources as well as for service providers. Changes the age of the children to which this section applies to under three, rather than six, years of age. Makes language changes. SECTION 13. Section 73.008, Human Resources Code, is amended as follows: Sec. 73.008. EARLY IDENTIFICATION STRATEGY. Revises language to clarify that the council should coordinate programs with other agencies, rather than utilizing information from other agencies. Makes conforming and nonsubstantive language changes. SECTION 14. Amends Section 73.009(a), Human Resources Code, as follows: Subsection (a) changes language regarding a child referred for services to clarify that a child under three years of age and the child's family may be referred. Omits a clause regarding being considered at risk of developmental delay because of certain biological or environmental factors. SECTION 15. Amends Section 73.010, Human Resources Code, as follows: Section 73.010. ELIGIBILITY FOR SERVICES. Adds language establishing that a child is eligible for services under this chapter if the child is documented as having developmental delay or a medically diagnosed physical or mental condition that has a high probability of resulting in developmental delay. Omits certain criteria for eligibility and the council's authorization for the council to charge fees for services provided. Makes a conforming changes. SECTION 16. Amends Section 73.022, Human Resources Code, by replacing the heading, replacing subsections (a) and (b), omitting subsections regarding the Central Education Agency and adding additional subsections as follows: Sec. 73.022. FINANCES. Subsection (a) requires the council to ensure compliance with requirements necessary to obtain federal funds in the maximum amount and the most advantageous proportions possible. Requires the council to apply for receive, administer, and spend federal and state funds as specified. Requires the council to authorize and account for the classification and spending of funds as specified. Subsection (b) requires that all money paid to the council under this chapter be deposited in the state treasury and used only for the administration of this chapter. Subsection (c) establishes that financial transactions of the council are subject to audit by the state auditor in accordance with Chapter 321, Government Code. Subsection (d) requires the executive director to prepare and submit a biennial budget and appropriation request as specified. Subsection (e) requires the council to submit the budget and appropriations request to the Legislative Budget Board and the governor in the manner prescribed by law. Subsection (f) requires the council to annually file a complete and detailed report as specified with the governor and the presiding officer of each house of the legislature. SECTION 17. Amends Chapter 73, Human Resources Code, by adding Section 73.023, entitled "APPLICATION OF SUNSET ACT," establishing the council to be subject to Chapter 325, Government Code (Texas Sunset Act). Provides that the council is abolished on September 1, 2003, unless continued in existence as provided by that chapter. SECTION 18. Amends Chapter 73, Human Resources Code, by adding Section 73.024, as follows: Sec. 73.024. OPEN MEETINGS; OPEN RECORDS; ADMINISTRATIVE PROCEDURE. Provides that the board, council, and advisory committee are subject to the requirements of state open meetings and open records laws as specified. SECTION 19. Amends Chapter 411F, Government Code, by adding Section 411.132, entitled ACCESS TO CRIMINAL HISTORY RECORD INFORMATION: INTERAGENCY COUNCIL ON EARLY CHILDHOOD INTERVENTION, as follows: Subsection (a) allows the council to obtain criminal history record information as specified. Subsection (b) prohibits the council from releasing or disclosing criminal history record information except as specified. Subsection (c) requires the council to destroy criminal history record information that relates to a person after the information is used for its authorized purpose. Subsection (d) allows the council to provide the applicant, employee, professional consultant, or volunteer with a copy of the person's criminal history record information obtained under Subsection (a) of this section. Subsection (e) establishes that the failure or refusal to provide fingerprints or a complete name on request constitutes good cause for dismissal or refusal to hire, with regard to council employees, consultants, and applicants for employment or volunteer positions as specified. SECTION 20. Repeals Sections 73.011-73.021, Human Resources Code (Parent Counseling and Case Management, Monitoring, Intervention Services, Report, New Program Strategy, Program Approval, Program Standards, Council Guidelines, and Program Monitoring). SECTION 21. Subsection (a) requires the governor, as soon as possible after the effective date of this Act, to appoint the eight lay members of the board as specified. Subsection (b) requires the executive director or commissioner of education, as soon as possible after the effective date of this Act, to appoint one member to the board for a term expiring February 1, 2003. Subsection (c) requires the executive director or commissioner of the agencies listed in Sec. 73.002(b), Human Resources Code, as amended by this Act, to appoint representatives as specified. Subsection (d) provides that until all board members are appointed and qualified to take office, a majority with at least four qualified members on the board constitutes a quorum. Subsection (e) establishes that the term of a member of the council as existed immediately before the effective date of this Act, expires and the position is abolished on the date on which a majority of the members of the board are appointed and are qualified to take office. SECTION 22. Effective date: September 1, 1997. SECTION 23. Emergency clause. COMPARISON OF ORIGINAL TO SUBSTITUTE In SECTION 2 (Sec. 73.002, Human Resources Code), CSSB 305 changes the composition and number of members on the council's governing board from nine lay members as proposed in the original bill to eight lay members and one member who represents Texas Education Agency. CSSB 305 inserts the clause "subject to the approval of the appropriate commissioner or executive head" in subsection (c), so as to provide a safeguard on the committing of resources made on the appointing agency's behalf. Additionally, the substitute bill inserts a statement in subsection (d) regarding grounds for the removal of a member who terminates employment with their appointing state agency. The substitute bill replaces the word "governor" with the term "appropriate appointing authority" in SECTION 4 (Sec. 73.0022, Human Resources Code) in regards to whom shall be notified by the presiding officer if and why a board member is removed and whom shall make a subsequent appointment. In SECTION 11 (Sec. 73.006(c), Human Resources Code), the substitute bill adds language concerning "member" to clarify that an agency that has either a member or representative on the board shall provide staff support as needed.