1-1 By: Nelson S.B. No. 940
1-2 (In the Senate - Filed March 5, 1997; March 6, 1997, read
1-3 first time and referred to Committee on Health and Human Services;
1-4 April 21, 1997, reported adversely, with favorable Committee
1-5 Substitute by the following vote: Yeas 11, Nays 0; April 21, 1997,
1-6 sent to printer.)
1-7 COMMITTEE SUBSTITUTE FOR S.B. No. 940 By: Nelson
1-8 A BILL TO BE ENTITLED
1-9 AN ACT
1-10 relating to local mental health and mental retardation authorities
1-11 and community centers.
1-12 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-13 SECTION 1. Subsections (g), (h), and (i), Section 534.035,
1-14 Health and Safety Code, are amended to read as follows:
1-15 (g) If, by the date prescribed by the commissioner, the
1-16 community center fails to respond to a deficiency identified in a
1-17 review or audit to the satisfaction of the commissioner, the
1-18 department may withhold [discontinue the transfer of] related
1-19 department funds to the community center until the dispute is
1-20 resolved in accordance with Section 534.059. [The community center
1-21 is entitled to notice and an opportunity for a hearing before the
1-22 transfer of department funds is discontinued. The board by rule
1-23 shall prescribe the hearings procedure.]
1-24 [(h) The department may withhold funds during the pendency
1-25 of an appeal to a court if the department hearing upholds the
1-26 discontinuation of the funds. The department shall transfer the
1-27 withheld funds to the community center if the final determination
1-28 is favorable to the community center.]
1-29 [(i)] The department shall incorporate the community
1-30 center's responses into the official management audit report in
1-31 accordance with the Government Auditing Standards published by the
1-32 United States General Accounting Office. The department shall
1-33 publish the final report within the period prescribed by department
1-34 rules, but not later than the 60th day after the date on which the
1-35 audit staff conducts the official exit conference with the
1-36 community center. If the department disagrees with the community
1-37 center's responses as provided by Subsection (f), the department
1-38 shall publish the official report within the period prescribed by
1-39 department rules.
1-40 SECTION 2. Subchapter A, Chapter 534, Health and Safety
1-41 Code, is amended by adding Section 534.036 to read as follows:
1-42 Sec. 534.036. MANAGEMENT IN CERTAIN CIRCUMSTANCES. (a) The
1-43 commissioner may appoint a management team or an individual to
1-44 manage and operate a community center if the commissioner finds:
1-45 (1) the community center has wilfully or negligently
1-46 failed to discharge its duties under a contract with the
1-47 department;
1-48 (2) an officer or employee of the center has misused
1-49 state or federal money;
1-50 (3) an officer or employee of the center has engaged
1-51 in a fraudulent act, transaction, practice, or course of business;
1-52 (4) the life, health, welfare, or safety of a person
1-53 served by the community center is or may be endangered by an act or
1-54 omission of the community center;
1-55 (5) the community center has failed to keep fiscal
1-56 records in accordance with Chapter 783, Government Code;
1-57 (6) the community center has failed to maintain proper
1-58 control over its assets in accordance with Chapter 783, Government
1-59 Code;
1-60 (7) the community center has failed to respond as
1-61 prescribed by the commissioner to a deficiency in a review or
1-62 audit; or
1-63 (8) the community center has failed to comply with
1-64 applicable sections of this subchapter and department rules.
2-1 (b) The department, in writing, shall notify the community
2-2 center and local agency or organizational combination of local
2-3 agencies responsible for making appointments to the local board of
2-4 trustees of the appointment of the management team or individual
2-5 and the circumstances on which the appointment is based.
2-6 (c) The management team or individual may perform any or all
2-7 of the following functions as defined by the commissioner:
2-8 (1) evaluate, redesign, modify, administer, supervise,
2-9 or monitor the management, procedures, or operations of the
2-10 community center;
2-11 (2) hire, supervise, discipline, or reassign employees
2-12 of the community center or terminate the employment of the
2-13 employees;
2-14 (3) reallocate resources and manage assets of the
2-15 community center;
2-16 (4) provide technical assistance to officers and
2-17 employees of the community center and require or provide staff
2-18 development;
2-19 (5) approve or disapprove each financial transaction
2-20 or expenditure or contract for goods and services that the
2-21 community center makes;
2-22 (6) redesign, modify, or terminate the community
2-23 center's programs or services;
2-24 (7) direct the local board of trustees, executive
2-25 director, chief financial officer, or other fiscal or programmatic
2-26 officer of the community center to take an action;
2-27 (8) exercise all powers and duties of the officers and
2-28 employees of the community center; and
2-29 (9) make recommendations to the local agency or
2-30 organizational combination of local agencies responsible for
2-31 appointments to the board of trustees regarding the removal of some
2-32 or all of the community center's trustees.
2-33 (d) The management team or individual shall report the
2-34 activities of the team or individual to the commissioner and the
2-35 local board of trustees monthly.
2-36 (e) The commissioner shall review and evaluate the
2-37 performance of the community center each month to determine the
2-38 feasibility of restoring the management and operation of the
2-39 community center to local control.
2-40 (f) The powers and duties of the board of trustees shall be
2-41 exercised under the supervision of the management team or
2-42 individual.
2-43 (g) The commissioner may direct that all costs of the
2-44 management team or individual shall be paid by the community
2-45 center.
2-46 (h) The appointment of a management team or individual under
2-47 this section continues until:
2-48 (1) the commissioner determines that circumstances
2-49 that would support a finding under Subsection (a) no longer exist;
2-50 or
2-51 (2) the department cancels the contract with the
2-52 community center.
2-53 (i) When the commissioner finds that circumstances that
2-54 would support a finding under Subsection (a) no longer exist, the
2-55 commissioner shall terminate the powers and appointment of the team
2-56 or individual, and after the termination, the community center's
2-57 authorized officers and employees shall manage and operate the
2-58 community center.
2-59 (j) The community center may appeal an appointment made
2-60 under Subsection (a) as prescribed by board rule. The filing of a
2-61 notice of appeal does not stay the appointment of a management team
2-62 or individual if the appointment is made on a finding made under
2-63 Subsection (a)(4).
2-64 (k) A member of the management team or individual appointed
2-65 under this section is immune from suit or liability arising from
2-66 the good faith performance of any functions described in this
2-67 section.
2-68 SECTION 3. Section 534.059, Health and Safety Code, is
2-69 amended to read as follows:
3-1 Sec. 534.059. PERFORMANCE STANDARDS. (a) The department
3-2 shall specify performance standards, including measures of results,
3-3 to use in evaluating the compliance of a local mental health or
3-4 mental retardation authority with its obligation or contract to
3-5 ensure the provision of [provide] specific services to priority
3-6 populations.
3-7 (b) If, by the date prescribed by the commissioner, a mental
3-8 health or mental retardation authority fails to comply with its
3-9 obligation or contract to ensure provision of services to the
3-10 satisfaction of the commissioner, the department may withhold
3-11 related department money to the authority until the dispute is
3-12 resolved. The department shall notify the local mental health and
3-13 mental retardation authority in writing of the department's
3-14 decision to withhold money under this section.
3-15 (c) The local mental health or mental retardation authority
3-16 may appeal the department's decision to withhold money under this
3-17 section. The board by rule shall prescribe the appeal procedure.
3-18 The filing of a notice of appeal under this subsection stays the
3-19 imposition of the department's decision to withhold money.
3-20 (d) Notwithstanding Subsection (c), the department may limit
3-21 general revenue allocations to the local mental health and mental
3-22 retardation authority to monthly distributions during the appeal.
3-23 (e) The department may withhold money during an appeal to a
3-24 court if the decision to withhold money is finally affirmed in the
3-25 appeal filed under Subsection (c).
3-26 SECTION 4. Subsection (b), Section 534.060, Health and
3-27 Safety Code, is amended to read as follows:
3-28 (b) The department shall review the program quality and
3-29 program performance results of each local mental health or mental
3-30 retardation authority in accordance with a risk assessment and
3-31 evaluation system appropriate to contract requirements [at least
3-32 once each fiscal year]. The department may determine the scope of
3-33 each review.
3-34 SECTION 5. Subsections (a), (b), and (c), Section 534.061,
3-35 Health and Safety Code, are amended to read as follows:
3-36 (a) The department shall develop mechanisms for periodically
3-37 monitoring the services provided by a [private] provider who
3-38 contracts with a mental health or mental retardation authority to
3-39 provide services for persons with mental retardation or mental
3-40 illness at the community level, including residential services, if
3-41 state funds or funds for which the state has oversight
3-42 responsibility are used to pay for at least part of the services.
3-43 (b) The local mental health or mental retardation authority
3-44 [department] shall monitor the services to ensure that the
3-45 [private] provider is delivering the services in a manner
3-46 consistent with the contract. [The department shall also provide
3-47 for periodic fiscal audits of those private providers.]
3-48 (c) Each [private] provider contract involving the use of
3-49 state funds or funds for which the state has oversight
3-50 responsibility must authorize the local mental health or mental
3-51 retardation authority or the authority's designee, and the
3-52 department or the department's designee to have unrestricted access
3-53 to all facilities, records, data, and other information under the
3-54 control of the provider as necessary to enable the department to
3-55 audit, monitor, and review the financial and program activities and
3-56 services associated with the contract.
3-57 SECTION 6. This Act takes effect September 1, 1997.
3-58 SECTION 7. The importance of this legislation and the
3-59 crowded condition of the calendars in both houses create an
3-60 emergency and an imperative public necessity that the
3-61 constitutional rule requiring bills to be read on three several
3-62 days in each house be suspended, and this rule is hereby suspended.
3-63 * * * * *