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.


 1-5           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:


2-11     (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:



4-15     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:


5-22     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:



 9-7           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.


9-27     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.