By Nelson S.B. No. 940
75R3315 JJT-D
A BILL TO BE ENTITLED
1-1 AN ACT
1-2 relating to the state's mental health and mental retardation
1-3 services system; providing penalties.
1-4 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-5 SECTION 1. Chapter 531, Health and Safety Code, is amended
1-6 by adding Section 531.003 to read as follows:
1-7 Sec. 531.003. DEPARTMENT AS LEAD AGENCY. (a) The
1-8 department is the state's lead agency in policy and services
1-9 related to mental health, mental retardation, and behavioral
1-10 health.
1-11 (b) Each state agency or local mental health or mental
1-12 retardation authority that has a responsibility related to mental
1-13 health, mental retardation, or behavioral health policy or services
1-14 shall conform to the department's policies and standards in regard
1-15 to that responsibility.
1-16 SECTION 2. Section 532.003(b), Health and Safety Code, is
1-17 amended to read as follows:
1-18 (b) The members must be representatives of the public who
1-19 have demonstrated interest in mental health, mental retardation,
1-20 developmental disabilities, or the health and human services
1-21 system. At least one member must be a consumer of services for
1-22 persons with mental illness or mental retardation. At least two
1-23 other members must be consumers of services for persons with mental
1-24 illness or mental retardation or [a] family members [member] of
2-1 consumers [a consumer] of those services.
2-2 SECTION 3. Subchapter A, Chapter 533, Health and Safety
2-3 Code, is amended by adding Section 533.016 to read as follows:
2-4 Sec. 533.016. ALLOCATION OF SPACE. The department shall
2-5 conform the department's use of space for departmental activities
2-6 to the standards adopted under Subchapter C, Chapter 2165,
2-7 Government Code.
2-8 SECTION 4. Subchapter B, Chapter 533, Health and Safety
2-9 Code, is amended by adding Section 533.0321 to read as follows:
2-10 Sec. 533.0321. LONG-RANGE PLANNING FOR LOCAL AUTHORITIES.
2-11 (a) Each local mental health or mental retardation authority shall
2-12 develop a long-range plan for services. The local mental health or
2-13 mental retardation authority shall amend the plan at least
2-14 biennially so that the plan covers at least the six years
2-15 immediately following the completion date of the most recent update
2-16 of the plan.
2-17 (b) The local mental health or mental retardation authority
2-18 shall ensure public involvement and involvement of the families of
2-19 persons served by the local mental health or mental retardation
2-20 authority in all aspects of the planning and amendment process.
2-21 (c) A plan developed under this section must cover all
2-22 relevant state-operated services and services operated or funded by
2-23 the local mental health or mental retardation authority.
2-24 (d) The department shall use plans developed under this
2-25 section:
2-26 (1) as a basis for a performance contract with each
2-27 entity;
3-1 (2) in the department's strategic planning process;
3-2 and
3-3 (3) to determine how each entity is to carry out the
3-4 department's "best practices" standards.
3-5 (e) A plan developed under this section must include:
3-6 (1) an estimate of the number of residents in the
3-7 local authority's region who require services and the range of
3-8 those services, categorized by age and type of service;
3-9 (2) a description of all public and private facilities
3-10 and programs necessary to provide adequate services in the region
3-11 that:
3-12 (A) are available in the region; or
3-13 (B) should be developed in the region;
3-14 (3) an analysis of the availability in the region of
3-15 professional and staff personnel trained to provide services
3-16 together with, if necessary, a proposal for increasing recruitment
3-17 and retention of such personnel;
3-18 (4) a mechanism to ensure effective client transition
3-19 between programs and services in the region, including a
3-20 description of all proposed programs and services and the
3-21 relationships among the programs and services;
3-22 (5) an analysis of opportunities to coordinate
3-23 services and programs in the region with services and programs
3-24 provided by the department or under the jurisdiction of another
3-25 state or local authority;
3-26 (6) a plan for regular meetings among representatives
3-27 of all service providers in the region to foster appropriate
4-1 sharing resources and expertise;
4-2 (7) a detailed financial plan that shows:
4-3 (A) the costs of necessary services;
4-4 (B) administrative costs; and
4-5 (C) the intended allocation of departmental
4-6 money; and
4-7 (8) the results of a comprehensive survey of clients
4-8 of the local mental health or mental retardation authority and of
4-9 clients' families together with a description of changes made to
4-10 accommodate the needs identified by the survey results.
4-11 SECTION 5. Section 533.034, Health and Safety Code, is
4-12 amended to read as follows:
4-13 Sec. 533.034. [AUTHORITY TO CONTRACT FOR] COMMUNITY-BASED
4-14 SERVICES CONTRACTS AND PENALTIES RELATED TO SERVICES. (a) The
4-15 department may cooperate, negotiate, and contract with local
4-16 agencies, hospitals, private organizations and foundations,
4-17 community centers, physicians, and other persons to plan, develop,
4-18 and provide community-based mental health and mental retardation
4-19 services.
4-20 (b) The board by rule shall establish guidelines that
4-21 provide penalties for violations of a service provider contract
4-22 provision or a department rule. The rules must provide for a range
4-23 of appropriate penalties for each category of violations and for
4-24 failure to correct a violation. The rules may allow for the
4-25 department to vary from a guideline for particular contracts.
4-26 (c) Rules adopted under Subsection (b) must include the
4-27 process by which a provider may appeal an adverse decision or
5-1 action by the department.
5-2 (d) A penalty for a violation specified in a rule adopted
5-3 under Subsection (b) may include:
5-4 (1) withholding any part of a payment under the
5-5 contract; and
5-6 (2) an administrative penalty.
5-7 (e) An administrative penalty imposed by a rule adopted
5-8 under this section may be assessed and collected as provided by
5-9 Section 571.025.
5-10 SECTION 6. Section 533.035, Health and Safety Code, is
5-11 amended by adding Subsection (e) to read as follows:
5-12 (e) The board by rule shall establish a reimbursement system
5-13 for disbursements under Subsection (b). The system must provide
5-14 for funding services according to the median expenditures for
5-15 services in each region if the services are funded with money from
5-16 the general revenue fund. The rules must provide for a cost report
5-17 modeled after the report used by providers of Medicaid-funded
5-18 services.
5-19 SECTION 7. Section 534.002, Health and Safety Code, is
5-20 amended to read as follows:
5-21 Sec. 534.002. BOARD OF TRUSTEES FOR CENTER ESTABLISHED BY
5-22 ONE LOCAL AGENCY. The board of trustees of a community center
5-23 established by one local agency is composed of[:]
5-24 [(1) the members of the local agency's governing body;
5-25 or]
5-26 [(2)] not fewer than five or more than nine qualified
5-27 voters who reside in the region to be served by the center and who
6-1 are appointed by the local agency's governing body.
6-2 SECTION 8. Sections 534.003(b) and (c), Health and Safety
6-3 Code, are amended to read as follows:
6-4 (b) The governing bodies of the local agencies shall appoint
6-5 the board members [either from among the membership of the
6-6 governing bodies or] from among the qualified voters who reside in
6-7 the region to be served by the center.
6-8 (c) When the center is established, the governing bodies
6-9 shall enter into a contract that stipulates the number of board
6-10 members [and the group from which the members are chosen]. They
6-11 may renegotiate or amend the contract as necessary to change the[:]
6-12 [(1) method of choosing the members; or]
6-13 [(2)] membership of the board of trustees to more
6-14 accurately reflect the ethnic and geographic diversity of the local
6-15 service area.
6-16 SECTION 9. Section 534.004(b), Health and Safety Code, is
6-17 amended to read as follows:
6-18 (b) The local agency or organizational combination of local
6-19 agencies that appoints the board of trustees shall, in appointing
6-20 the members, attempt to reflect the ethnic and geographic diversity
6-21 of the local service area the community center serves. The local
6-22 agency or organizational combination shall include on the board of
6-23 trustees one or more persons otherwise qualified under this chapter
6-24 who are consumers of the types of services the center provides.
6-25 The local agency or organizational combination shall also include
6-26 at least two persons otherwise qualified under this chapter who are
6-27 consumers of the types of services the center provides or who are
7-1 family members of consumers of the types of services the center
7-2 provides.
7-3 SECTION 10. Sections 534.005(a) and (b), Health and Safety
7-4 Code, are amended to read as follows:
7-5 (a) Appointed members of the board of trustees [who are not
7-6 members of a local agency's governing body] serve staggered
7-7 two-year terms. In appointing the initial members, the appointing
7-8 authority shall designate not less than one-third or more than
7-9 one-half of the members to serve one-year terms and shall designate
7-10 the remaining members to serve two-year terms.
7-11 (b) A vacancy on a board of trustees [composed of qualified
7-12 voters] is filled by appointment for the remainder of the unexpired
7-13 term.
7-14 SECTION 11. Subchapter A, Chapter 534, Health and Safety
7-15 Code, is amended by adding Section 534.0055 to read as follows:
7-16 Sec. 534.0055. DEPARTMENTAL TRAINING AND ASSISTANCE. (a)
7-17 The department shall train each board of trustees of a community
7-18 center in the board of trustees' roles and responsibilities.
7-19 (b) The department shall provide technical assistance to
7-20 each board of trustees of a community center related to:
7-21 (1) center finances;
7-22 (2) quality assurance; and
7-23 (3) information systems.
7-24 SECTION 12. Section 534.060(b), Health and Safety Code, is
7-25 amended to read as follows:
7-26 (b) The department shall conduct a comprehensive review of
7-27 [review] the program quality and program performance results of
8-1 each local mental health or mental retardation authority at least
8-2 once every three [each] fiscal years [year]. The department may
8-3 conduct other reviews of a local authority as necessary to ensure
8-4 quality of services and compliance with contract provisions and
8-5 department rules [may determine the scope of each review].
8-6 SECTION 13. Subchapter B, Chapter 534, Health and Safety
8-7 Code, is amended by adding Section 534.071 to read as follows:
8-8 Sec. 534.071. VOUCHER PROGRAMS. (a) The department shall
8-9 revise its methods of reimbursing providers of services to
8-10 incorporate a voucher system to promote consumer choice in
8-11 obtaining appropriate services the department finances, including
8-12 services related to the department's home and community-based
8-13 services program, prospective payment programs, companion programs,
8-14 and vocational, support, or day services for individuals who are
8-15 moving out of a state facility or state school into a community
8-16 setting.
8-17 (b) The board by rule shall establish:
8-18 (1) a list of services that may be acquired through
8-19 the voucher system;
8-20 (2) procedures for applying for and receiving vouchers
8-21 under the program;
8-22 (3) methods for obtaining a service with a voucher;
8-23 (4) procedures by which a provider who exchanges a
8-24 service for a voucher may be reimbursed by the department;
8-25 (5) permissible ranges of service costs reimbursable
8-26 through the program; and
8-27 (6) a procedure for certifying qualified providers
9-1 from whom an individual may receive services in exchange for a
9-2 voucher.
9-3 SECTION 14. Chapter 534, Health and Safety Code, is amended
9-4 by adding Subchapter C to read as follows:
9-5 SUBCHAPTER C. DEPARTMENT INTERVENTION OR CONSERVATORSHIP
9-6 FOR INADEQUATELY PERFORMING PROVIDERS
9-7 Sec. 534.091. FINDINGS AND PURPOSE. (a) The legislature
9-8 finds that the closing of a facility that provides mental health or
9-9 mental retardation services or the cancellation of a mental health
9-10 or mental retardation service provider's contract in some
9-11 circumstances may:
9-12 (1) have an adverse effect on the persons who receive
9-13 the services and the families of those persons; and
9-14 (2) result in a lack of readily available resources to
9-15 meet the basic needs of the persons receiving the services.
9-16 (b) The purpose of this subchapter is to provide for:
9-17 (1) the appointment of a conservator to assume the
9-18 operations of a service provider whose performance is inadequate or
9-19 presents a danger to the health, safety, or welfare of persons who
9-20 receive services from the provider; and
9-21 (2) a transition for persons who are receiving the
9-22 inadequate or dangerous services that:
9-23 (A) emphasizes proper service delivery; and
9-24 (B) reduces potential trauma among those
9-25 receiving the services.
9-26 Sec. 534.092. CAUSES FOR INTERVENTION OR APPOINTMENT OF
9-27 CONSERVATOR. The board by rule shall describe the causes for
10-1 intervention with or appointment of a conservator for a provider,
10-2 including a community center or local mental health or mental
10-3 retardation authority. The causes must be related to a pattern of
10-4 deficient practices of a provider in:
10-5 (1) the provision of services to a degree that the
10-6 provider's acts or omissions endanger the life, health, or safety
10-7 of a person receiving the provider's services;
10-8 (2) the use of state money; or
10-9 (3) complying with requirements of law, department
10-10 rules, or contract provisions.
10-11 Sec. 534.093. INTERVENTION. If the department has reason to
10-12 believe that a provider exhibits a cause for intervention described
10-13 by rules adopted under Section 534.092, the department may
10-14 intervene, to protect persons receiving services from the provider
10-15 or to correct the deficiencies, by assigning to the provider:
10-16 (1) an intervention team; or
10-17 (2) a monitor.
10-18 Sec. 534.094. INTERVENTION TEAM. (a) An intervention team
10-19 the department assigns must consist of persons who have the
10-20 expertise to assist the provider in correcting the deficiencies
10-21 under Section 534.093.
10-22 (b) An intervention team shall:
10-23 (1) evaluate the provider as directed by the
10-24 department;
10-25 (2) develop a plan of actions for the provider to take
10-26 that will correct the deficiencies in not more than 180 days; and
10-27 (3) evaluate the provider's performance in correcting
11-1 the deficiencies according to the team's plan for purposes of
11-2 recommending to the department whether the department should:
11-3 (A) return all management activities to the
11-4 provider;
11-5 (B) appoint a monitor to oversee the provider's
11-6 provision of services;
11-7 (C) request that the attorney general bring suit
11-8 for the appointment of a conservator to take charge of the
11-9 provision of the provider's services; or
11-10 (D) extend the period for the provider to
11-11 correct the deficiencies.
11-12 Sec. 534.095. MONITOR. (a) A monitor assigned to a
11-13 provider shall oversee the provider's activities in correcting
11-14 deficiencies under Section 534.093.
11-15 (b) If an intervention team has been assigned to the
11-16 provider, the monitor shall give the provider assistance and advice
11-17 as necessary to complete the intervention team's plan for the
11-18 provider to correct the deficiencies. The monitor may amend the
11-19 plan as the monitor finds would facilitate correcting the
11-20 deficiencies. The monitor shall consult with the intervention team
11-21 before amending the plan if the team is still assigned to work with
11-22 the provider.
11-23 (c) If an intervention team has not been assigned to the
11-24 provider, the monitor shall carry out the duties of an intervention
11-25 team provided by Section 534.094 and work closely with the provider
11-26 to assist and advise the provider in completing the plan.
11-27 (d) A monitor at any time may recommend to the department
12-1 whether the department should:
12-2 (1) return all management activities to the provider;
12-3 (2) appoint an intervention team to oversee the
12-4 provider's provision of services or to continue to assist in
12-5 completing the plan for the provider to correct the deficiencies;
12-6 (3) request that the attorney general bring suit for
12-7 the appointment of a conservator to take charge of the provision of
12-8 the provider's services; or
12-9 (4) extend the period for the provider to correct the
12-10 deficiencies.
12-11 Sec. 534.096. APPOINTMENT OF CONSERVATOR BY AGREEMENT. (a)
12-12 The department may, at the request of a provider, appoint a
12-13 conservator to direct the provision of the provider's services if
12-14 the department determines the appointment of a conservator is
12-15 desirable and consistent with the purposes of this subchapter. The
12-16 department's appointment must be made in accordance with an
12-17 agreement between the provider and the department that describes
12-18 the conditions of the conservator's appointment.
12-19 (b) An agreement under this section must preserve all rights
12-20 granted by law to the persons receiving the services.
12-21 (c) An agreement under this section terminates as specified
12-22 by the agreement or when the provider or the department notifies
12-23 the other party in writing that the party wishes to terminate the
12-24 agreement.
12-25 Sec. 534.097. INVOLUNTARY APPOINTMENT. (a) The department
12-26 may request that the attorney general bring suit on behalf of the
12-27 state for the appointment of a conservator to take charge of the
13-1 provision of a provider's services if:
13-2 (1) the department finds that a provider exhibits a
13-3 pattern of deficient practices described by department rules
13-4 adopted under Section 534.092;
13-5 (2) the provider does not have a license;
13-6 (3) the provider's license, if any, has been
13-7 suspended;
13-8 (4) license suspension or revocation procedures
13-9 against the provider are pending and the department determines that
13-10 an imminent threat to the health or safety of persons receiving the
13-11 provider's services is presented;
13-12 (5) the department determines that an emergency exists
13-13 that presents an immediate threat to the health or safety of the
13-14 persons receiving the provider's services; or
13-15 (6) the provider is ceasing operations and
13-16 arrangements for persons receiving the provider's services to
13-17 replace those services with another provider have not been made.
13-18 (b) After a hearing, a court shall appoint a conservator to
13-19 take charge of the provision of services if the court finds that
13-20 the appointment is warranted. The court shall consider the person
13-21 or persons the department recommends for the appointment.
13-22 (c) If possible, the court shall appoint a conservator who
13-23 has experience in providing services of the type the conservator is
13-24 appointed to provide.
13-25 (d) An action under this section must be brought in Travis
13-26 County or the county where the provider provides services.
13-27 Sec. 534.098. COSTS AND FEES OF CONSERVATOR. (a) The
14-1 department shall pay the conservator's fee and reasonable expenses
14-2 promptly.
14-3 (b) A provider is liable to the department for:
14-4 (1) the conservator's fee;
14-5 (2) the conservator's reasonable expenses;
14-6 (3) the costs of appointing the conservator; and
14-7 (4) the department's costs of recovering money under
14-8 Subdivisions (1)-(3) if the provider does not reimburse the
14-9 department for an expenditure related to the fee, expenses, or
14-10 costs before the 31st day after the department mails the provider
14-11 an itemized request for payment.
14-12 (c) A provider may not use state money to reimburse the
14-13 department under this section. To ensure that state money is not
14-14 used for reimbursement under this section, the department may
14-15 withhold contract payments to a provider for whom a conservator has
14-16 been appointed.
14-17 Sec. 534.099. POWERS AND DUTIES OF CONSERVATOR. (a) A
14-18 conservator appointed under this subchapter may:
14-19 (1) hire and dismiss employees for the provider;
14-20 (2) examine all financial information in the
14-21 provider's possession;
14-22 (3) make payments for the provider; and
14-23 (4) cancel provider contracts with other persons.
14-24 (b) A conservator appointed under this subchapter shall
14-25 undertake to rehabilitate the practices of the provider so that the
14-26 provider may continue to operate in accordance with law, department
14-27 rules, and contracts. If necessary to protect the health, safety,
15-1 or welfare of persons receiving the provider's services, the
15-2 conservator shall administrate the closure of the provider's
15-3 facility or business.
15-4 (c) A conservator appointed under this subchapter shall
15-5 report to the department any practices of the provider that
15-6 indicate other deficiencies described by rules adopted under
15-7 Section 534.092.
15-8 (d) A conservator appointed under this subchapter may
15-9 recommend to the department at any time that the conservatorship be
15-10 ended.
15-11 (e) A conservator appointed under this subchapter is under
15-12 the direction and supervision of the department and shall comply
15-13 with orders of the board in fulfilling the conservator's duties.
15-14 (f) The department shall train conservators to ensure a
15-15 conservator will carry out the conservator's responsibilities under
15-16 this subchapter appropriately.
15-17 Sec. 534.100. EXPIRATION OF CONSERVATORSHIP. (a) Except as
15-18 provided by Section 534.096 and this section, a conservator
15-19 appointed under this subchapter serves until the board:
15-20 (1) determines that the provider can manage the
15-21 provision of services in accordance with law, department rules, and
15-22 contracts without the identified deficiencies; and
15-23 (2) orders the conservatorship ended.
15-24 (b) A provider may petition the board for:
15-25 (1) an order modifying the conservator's duties; or
15-26 (2) relief from certain actions of the conservator.
15-27 (c) If the board does not satisfy the provider under
16-1 Subsection (b), the provider may petition the court that appointed
16-2 the conservator for relief or for the conservatorship to end.
16-3 SECTION 15. Each local mental health or mental retardation
16-4 authority shall develop the first long-range plan for services as
16-5 required by Section 533.0321, Health and Safety Code, as added by
16-6 this Act, during the authority's first fiscal year that begins
16-7 after this Act becomes law.
16-8 SECTION 16. (a) The changes in law made by this Act to the
16-9 requirements for membership on the Texas Board of Mental Health and
16-10 Mental Retardation do not affect the entitlement of a member
16-11 serving on the board on August 31, 1997, to continue to hold office
16-12 for the remainder of the term for which the person was appointed.
16-13 The governor shall appoint persons to fill vacancies on the board
16-14 in the manner necessary to comply with the changes in law as
16-15 quickly as possible.
16-16 (b) Not later than October 1, 1997, a local agency or
16-17 organizational combination of local agencies that appoints a board
16-18 of trustees composed of members of local governmental bodies that
16-19 is serving under Section 534.002 or 534.003, Health and Safety
16-20 Code, shall appoint a new board as provided by the appropriate
16-21 section of that code, as amended by this Act. To provide for
16-22 staggered terms, board members appointed under this subsection
16-23 shall draw lots to determine the length of each member's term. If
16-24 the number of board members is an even number, one-half shall serve
16-25 a one-year term and one-half shall serve a two-year term. If the
16-26 number of members is an odd number, the number of members who serve
16-27 a one-year term shall be one fewer than the number who serve a
17-1 two-year term.
17-2 (c) Members of local governmental bodies who are serving as
17-3 members of a board of trustees under Section 534.002(1) or
17-4 534.003(b), Health and Safety Code, may continue to serve,
17-5 notwithstanding the changes made by this Act, until the newly
17-6 appointed board members have qualified for and taken office.
17-7 SECTION 17. The importance of this legislation and the
17-8 crowded condition of the calendars in both houses create an
17-9 emergency and an imperative public necessity that the
17-10 constitutional rule requiring bills to be read on three several
17-11 days in each house be suspended, and this rule is hereby suspended,
17-12 and that this Act take effect and be in force from and after its
17-13 passage, and it is so enacted.