AN ACT
1-1 relating to the operation and management of local mental health and
1-2 mental retardation authorities and community centers.
1-3 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-4 SECTION 1. Section 411.115, Government Code, is amended to
1-5 read as follows:
1-6 Sec. 411.115. ACCESS TO CRIMINAL HISTORY RECORD INFORMATION:
1-7 TEXAS DEPARTMENT OF MENTAL HEALTH AND MENTAL RETARDATION; LOCAL
1-8 AUTHORITIES; COMMUNITY CENTERS. (a) In this section, "local
1-9 mental health authority," "local mental retardation authority," and
1-10 "community center" have [has] the meanings [meaning] assigned by
1-11 Section 531.002, Health and Safety Code.
1-12 (b) The Texas Department of Mental Health and Mental
1-13 Retardation, a local mental health or mental retardation authority,
1-14 or a community center is entitled to obtain from the department
1-15 criminal history record information maintained by the department
1-16 that relates to a person:
1-17 (1) who is:
1-18 (A) an applicant for employment with the Texas
1-19 Department of Mental Health and Mental Retardation, a local mental
1-20 health or mental retardation authority, or a community center;
1-21 (B) an employee of the Texas Department of
1-22 Mental Health and Mental Retardation, a local mental health or
1-23 mental retardation authority, or a community center;
1-24 (C) [an applicant for employment with a
2-1 community center;]
2-2 [(D) an employee of a community center;]
2-3 [(E)] an applicant for employment with or an
2-4 employee of a business or person that contracts with the Texas
2-5 Department of Mental Health and Mental Retardation, a local mental
2-6 health or mental retardation authority, or a community center to
2-7 provide residential services to patients with mental illness or
2-8 clients with mental retardation who were furloughed or discharged
2-9 from a Texas Department of Mental Health and Mental Retardation
2-10 facility or community center;
2-11 (D) [(F)] a volunteer with the Texas Department
2-12 of Mental Health and Mental Retardation, a local mental health or
2-13 mental retardation authority, or a community center;
2-14 [(G) a volunteer with a community center;] or
2-15 (E) [(H)] a volunteer applicant; and
2-16 (2) who would be placed in direct contact with
2-17 patients with mental illness or clients with mental retardation.
2-18 (c) The Texas Department of Mental Health and Mental
2-19 Retardation, a local mental health or mental retardation authority,
2-20 or a community center is entitled to obtain only criminal history
2-21 record information that relates to:
2-22 (1) a sexual offense;
2-23 (2) a drug-related offense;
2-24 (3) a theft offense;
2-25 (4) criminal homicide;
2-26 (5) assault or battery; or
3-1 (6) an offense involving personal injury or threat.
3-2 (d) Criminal history record information obtained by the
3-3 mental health department, a local mental health or mental
3-4 retardation authority, or a community center under Subsection (b)
3-5 may not be released or disclosed to a person, other than the
3-6 contractor that employs the person who is the subject of the
3-7 criminal history record information, except on court order or with
3-8 the consent of the person who is the subject of the criminal
3-9 history record information.
3-10 (e) The Texas Department of Mental Health and Mental
3-11 Retardation, a local mental health or mental retardation authority,
3-12 or a community center shall collect and destroy conviction
3-13 information that relates to a person immediately after making [the
3-14 department or a contractor makes] an employment decision or taking
3-15 a [takes any] personnel action relating to the person who is the
3-16 subject of the criminal history record information.
3-17 SECTION 2. Subdivision (3), Section 250.001, Health and
3-18 Safety Code, is amended to read as follows:
3-19 (3) "Facility" means:
3-20 (A) a nursing home, custodial care home, or
3-21 other institution licensed by the Texas Department of Human
3-22 Services under Chapter 242;
3-23 (B) a personal care facility licensed by the
3-24 Texas Department of Human Services under Chapter 247;
3-25 (C) a home health agency licensed by the Texas
3-26 Department of Health under Chapter 142;
4-1 (D) an adult day care facility or adult day
4-2 health care facility licensed by the Texas Department of Human
4-3 Services under Chapter 103, Human Resources Code;
4-4 (E) a facility for persons with mental
4-5 retardation licensed or certified by the Texas Department of Human
4-6 Services;
4-7 (F) an unlicensed attendant care agency that
4-8 contracts with the Texas Department of Human Services;
4-9 (G) an intermediate care facility for persons
4-10 with mental retardation that is certified by the Texas Department
4-11 of Human Services to participate in the Medicaid program under
4-12 Title XIX of the Social Security Act (42 U.S.C. Section 1396 et
4-13 seq.);
4-14 (H) an adult foster care provider that contracts
4-15 with the Texas Department of Human Services; [or]
4-16 (I) a facility that provides mental health
4-17 services and that is operated by or contracts with the Texas
4-18 Department of Mental Health and Mental Retardation; or
4-19 (J) a local mental health or mental retardation
4-20 authority designated under Section 533.035.
4-21 SECTION 3. Section 533.003, Health and Safety Code, is
4-22 amended to read as follows:
4-23 Sec. 533.003. USE OF FUNDS FOR VOLUNTEER PROGRAMS IN LOCAL
4-24 AUTHORITIES AND COMMUNITY CENTERS. (a) To develop or expand a
4-25 volunteer program [programs] in a local mental health or mental
4-26 retardation authority or a community center [centers], the
5-1 department may allocate available funds appropriated for providing
5-2 volunteer services.
5-3 (b) The department shall develop formal policies that
5-4 encourage the growth and development of volunteer services in local
5-5 mental health or mental retardation authorities and community
5-6 centers.
5-7 SECTION 4. Subsections (d) and (i), Section 533.007, Health
5-8 and Safety Code, are redesignated as Subsections (a) and (b) and
5-9 amended to read as follows:
5-10 (a) [(d)] The department, a local mental health or mental
5-11 retardation authority, or a community center may deny employment or
5-12 volunteer status to an applicant if:
5-13 (1) the department, authority, or community center
5-14 determines that the applicant's criminal history record information
5-15 indicates that the person is not qualified or suitable; or
5-16 (2) the applicant fails to provide a complete set of
5-17 fingerprints if the department establishes that method of obtaining
5-18 criminal history record information.
5-19 (b) [(i)] The board shall adopt rules relating to the use of
5-20 information obtained under this section, including rules that
5-21 prohibit an adverse personnel action based on arrest warrant or
5-22 wanted persons information received by the department.
5-23 SECTION 5. Section 533.0075, Health and Safety Code, is
5-24 amended to read as follows:
5-25 Sec. 533.0075. EXCHANGE OF EMPLOYMENT RECORDS. The
5-26 department, a local mental health or mental retardation authority,
6-1 or [shall make available to] a community center may exchange with
6-2 one another[, on request,] the employment records of an [a
6-3 department] employee or former employee who applies for employment
6-4 at the department, authority, or community center.
6-5 SECTION 6. Subsection (a), Section 533.009, Health and
6-6 Safety Code, is amended to read as follows:
6-7 (a) Department facilities, local mental health or mental
6-8 retardation authorities, community centers, other designated
6-9 providers, and subcontractees of mental health and mental
6-10 retardation services are component parts of one service delivery
6-11 system within which patient or client records may be exchanged
6-12 without the patient's or client's consent.
6-13 SECTION 7. Subsections (c) and (d), Section 533.0355, Health
6-14 and Safety Code, are amended to read as follows:
6-15 (c) If the board establishes a pilot program, the department
6-16 shall:
6-17 (1) evaluate the pilot project at least annually to
6-18 determine the feasibility of employing the authority structure in
6-19 other areas of the state or statewide;
6-20 (2) prepare a report on the success of the pilot
6-21 project that includes a list of statutory restrictions that would
6-22 impair the permanent implementation of the authority structure in
6-23 other areas of the state and suggested legislative changes; and
6-24 (3) submit the report to the 77th Legislature [75th
6-25 and 76th legislatures] on January 15, 2001 [1997, and January 15,
6-26 1999, respectively].
7-1 (d) This section expires September 1, 2001 [1999].
7-2 SECTION 8. Section 534.035, Health and Safety Code, is
7-3 amended to read as follows:
7-4 Sec. 534.035. [PROGRAM] REVIEW, [AND MANAGEMENT] AUDIT, AND
7-5 APPEAL PROCEDURES. (a) The department by rule shall establish
7-6 review, audit, and appeal procedures [as a contract requirement]
7-7 for community centers. The procedures must [program review and
7-8 management audit procedures to] ensure that reviews and audits are
7-9 conducted in sufficient quantity and type to provide reasonable
7-10 assurance that a community center has adequate and appropriate
7-11 fiscal controls [exist in community centers].
7-12 (b) In a community center plan approved under Section
7-13 534.001, the center must agree to comply with the review and audit
7-14 procedures established under this section. [The department shall
7-15 conduct periodic program reviews at each community center. The
7-16 commissioner or the commissioner's designee shall prepare, publish,
7-17 and distribute a formal procedure for the periodic program
7-18 reviews.]
7-19 (c) [The department shall conduct periodic management audits
7-20 at each community center. The director of the internal audit unit,
7-21 with the approval of the board's audit committee, shall prepare and
7-22 publish a formal risk assessment procedure for the audits. The
7-23 department shall include in a management audit a comprehensive
7-24 review of the center's annual financial and compliance audit
7-25 activities required under Section 534.068.]
7-26 [(d) After a program review or management audit is
8-1 conducted, the department shall send to the community center a
8-2 written report that identifies in clear language each significant
8-3 deficiency identified and each question raised by the review or
8-4 audit.]
8-5 [(e) The board of trustees shall provide to the department a
8-6 written response to the concerns raised by the review or audit
8-7 within the period prescribed by department rule. The response
8-8 must:]
8-9 [(1) describe any action taken or to be taken to
8-10 correct an identified deficiency;]
8-11 [(2) provide narrative responses to questions relating
8-12 to policies or procedures raised in the review or audit; and]
8-13 [(3) give notice of any disagreement the board of
8-14 trustees has with a specific finding of the review or audit.]
8-15 [(f) Within the period prescribed by department rules, the
8-16 commissioner or the board's audit committee shall review the
8-17 community center's responses and shall notify in writing the
8-18 community center of any inadequacy or deficiency found in the
8-19 response. The community center may provide additional responses to
8-20 the commissioner. The commissioner shall establish a reasonable
8-21 deadline for receiving responses.]
8-22 [(g)] If, by a [the] date prescribed by the commissioner,
8-23 the community center fails to respond to a deficiency identified in
8-24 a review or audit to the satisfaction of the commissioner, the
8-25 department may sanction the center in accordance with board rules.
8-26 [discontinue the transfer of related department funds to the
9-1 community center until the dispute is resolved. The community
9-2 center is entitled to notice and an opportunity for a hearing
9-3 before the transfer of department funds is discontinued. The board
9-4 by rule shall prescribe the hearings procedure.]
9-5 [(h) The department may withhold funds during the pendency
9-6 of an appeal to a court if the department hearing upholds the
9-7 discontinuation of the funds. The department shall transfer the
9-8 withheld funds to the community center if the final determination
9-9 is favorable to the community center.]
9-10 [(i) The department shall incorporate the community center's
9-11 responses into the official management audit report in accordance
9-12 with the Government Auditing Standards published by the United
9-13 States General Accounting Office. The department shall publish the
9-14 final report within the period prescribed by department rules, but
9-15 not later than the 60th day after the date on which the audit staff
9-16 conducts the official exit conference with the community center.
9-17 If the department disagrees with the community center's responses
9-18 as provided by Subsection (f), the department shall publish the
9-19 official report within the period prescribed by department rules.]
9-20 SECTION 9. Section 534.059, Health and Safety Code, is
9-21 amended to read as follows:
9-22 Sec. 534.059. CONTRACT COMPLIANCE FOR LOCAL AUTHORITIES
9-23 [PERFORMANCE STANDARDS]. (a) The department shall evaluate
9-24 [specify performance standards, including measures of results, to
9-25 use in evaluating the compliance of] a local mental health or
9-26 mental retardation authority's compliance [authority] with its
10-1 [obligation or] contract to ensure the provision of [provide]
10-2 specific services to priority populations.
10-3 (b) If, by a date set by the commissioner, a local mental
10-4 health or mental retardation authority fails to comply with its
10-5 contract to ensure the provision of services to the satisfaction of
10-6 the commissioner, the department may impose a sanction as provided
10-7 by the applicable contract rule until the dispute is resolved. The
10-8 department shall notify the authority in writing of the
10-9 department's decision to impose a sanction.
10-10 (c) A local mental health or mental retardation authority
10-11 may appeal the department's decision to impose a sanction on the
10-12 authority. The board by rule shall prescribe the appeal procedure.
10-13 (d) The filing of a notice of appeal stays the imposition of
10-14 the department's decision to impose a sanction except when an act
10-15 or omission by a local mental health or mental retardation
10-16 authority is endangering or may endanger the life, health, welfare,
10-17 or safety of a person.
10-18 (e) While an appeal under this section is pending, the
10-19 department may limit general revenue allocations to a local mental
10-20 health or mental retardation authority to monthly distributions.
10-21 SECTION 10. Section 534.060, Health and Safety Code, is
10-22 amended to read as follows:
10-23 Sec. 534.060. PROGRAM AND SERVICE MONITORING AND REVIEW OF
10-24 LOCAL AUTHORITIES. (a) The department shall develop mechanisms
10-25 for monitoring the services provided by a local mental health or
10-26 mental retardation authority [and the authority's subcontractors].
11-1 (b) The department shall review the program quality and
11-2 program performance results of a [each] local mental health or
11-3 mental retardation authority in accordance with a risk assessment
11-4 and evaluation system appropriate to the authority's contract
11-5 requirements. The department may determine the scope of the [each]
11-6 review.
11-7 (c) A [Each] contract between a local mental health or
11-8 mental retardation authority and the department must authorize the
11-9 department to have unrestricted access to all facilities, records,
11-10 data, and other information under the control of the [local mental
11-11 health or mental retardation] authority[, the authority's
11-12 subcontractors, or the designated provider] as necessary to enable
11-13 the department to audit, monitor, and review the financial and
11-14 program activities and services associated with department funds.
11-15 SECTION 11. Subchapter B, Chapter 534, Health and Safety
11-16 Code, is amended by adding Sections 534.0601, 534.0602, and
11-17 534.0603 to read as follows:
11-18 Sec. 534.0601. COORDINATED PROGRAM AUDITS OF LOCAL
11-19 AUTHORITIES. (a) The department shall coordinate with each agency
11-20 or department of the state that contracts with a local mental
11-21 health or mental retardation authority to prescribe procedures for
11-22 a coordinated program audit of the authority. The procedures must
11-23 be:
11-24 (1) consistent with the requirements for the receipt
11-25 of federal funding by the authority; and
11-26 (2) based on risk assessment.
12-1 (b) A program audit must evaluate:
12-2 (1) the extent to which a local mental health or
12-3 mental retardation authority is achieving the results or benefits
12-4 established by an agency or department of the state or by the
12-5 legislature;
12-6 (2) the effectiveness of the authority's organization,
12-7 program, activities, or functions; and
12-8 (3) the authority's compliance with law.
12-9 (c) A program audit of a local mental health or mental
12-10 retardation authority must be performed in accordance with the
12-11 procedures prescribed under this section.
12-12 (d) The department may not implement a procedure for a
12-13 program audit under this section without the approval of the Health
12-14 and Human Services Commission.
12-15 (e) This section does not prohibit an agency, department, or
12-16 other entity providing funding to a local mental health or mental
12-17 retardation authority from investigating a complaint against the
12-18 authority or performing additional contract monitoring of the
12-19 authority.
12-20 Sec. 534.0602. FINANCIAL AUDITS OF LOCAL AUTHORITIES.
12-21 (a) The department shall prescribe procedures for a financial
12-22 audit of a local mental health or mental retardation authority.
12-23 The procedures must be consistent with requirements for the receipt
12-24 of federal funding by the authority.
12-25 (b) The department shall develop the procedures with the
12-26 assistance of each agency or department of the state that contracts
13-1 with a local mental health or mental retardation authority. The
13-2 department shall incorporate each agency's or department's
13-3 financial or compliance requirements for an authority into a single
13-4 audit that meets the requirements of Section 534.068.
13-5 (c) Before prescribing or amending a procedure under this
13-6 section, the department must set a deadline for agencies and
13-7 departments of the state that contract with local mental health and
13-8 mental retardation authorities to submit proposals relating to the
13-9 procedure.
13-10 (d) An agency or department of the state that contracts with
13-11 a local mental health or mental retardation authority must comply
13-12 with a procedure developed under this section.
13-13 (e) The department may not implement a procedure under this
13-14 section without the approval of the Health and Human Services
13-15 Commission.
13-16 Sec. 534.0603. ADDITIONAL FINANCIAL AUDIT ACTIVITY.
13-17 (a) The department shall develop protocols for an agency or
13-18 department of the state to conduct additional financial audit
13-19 activities of a local mental health or mental retardation
13-20 authority.
13-21 (b) An agency or department of the state may not conduct
13-22 additional financial audit activities relating to a local mental
13-23 health or mental retardation authority without the approval of the
13-24 Health and Human Services Commission.
13-25 (c) This section, and a protocol developed under this
13-26 section, do not apply to an audit conducted under Chapter 321,
14-1 Government Code.
14-2 SECTION 12. Section 534.061, Health and Safety Code, is
14-3 amended to read as follows:
14-4 Sec. 534.061. PROGRAM AND SERVICE MONITORING AND REVIEW OF
14-5 CERTAIN COMMUNITY SERVICES. (a) The department shall develop
14-6 mechanisms for periodically monitoring the services of [provided
14-7 by] a [private] provider who contracts with a local mental health
14-8 or mental retardation authority to provide services for persons
14-9 with mental retardation or mental illness at the community level,
14-10 including residential services, if state funds or funds for which
14-11 the state has oversight responsibility are used to pay for at least
14-12 part of the services.
14-13 (b) The local mental health or mental retardation authority
14-14 [department] shall monitor the services to ensure that the
14-15 [private] provider is delivering the services in a manner
14-16 consistent with the provider's [the] contract. [The department
14-17 shall also provide for periodic fiscal audits of those private
14-18 providers.]
14-19 (c) Each [private] provider contract involving the use of
14-20 state funds or funds for which the state has oversight
14-21 responsibility must authorize the local mental health or mental
14-22 retardation authority or the authority's designee and the
14-23 department or the department's designee to have unrestricted access
14-24 to all facilities, records, data, and other information under the
14-25 control of the provider as necessary to enable the department to
14-26 audit, monitor, and review the financial and program activities and
15-1 services associated with the contract.
15-2 (d) The department may withdraw funding from a local mental
15-3 health or mental retardation authority that [if the authority]
15-4 fails to cancel a contract with a [private] provider involving
15-5 [that involves] the use of state funds or funds for which the state
15-6 has oversight responsibility if:
15-7 (1) the [private] provider is not fulfilling its
15-8 contractual obligations; and
15-9 (2) the authority has [does] not taken [take]
15-10 appropriate action to remedy the problem in accordance with board
15-11 rules.
15-12 (e) The board by rule shall prescribe procedures a local
15-13 mental health or mental retardation authority must follow in
15-14 remedying a problem with a [private] provider.
15-15 SECTION 13. Subchapter B, Chapter 534, Health and Safety
15-16 Code, is amended by adding Section 534.071 to read as follows:
15-17 Sec. 534.071. ADVISORY COMMITTEE. A local mental health or
15-18 mental retardation authority may appoint a committee to advise its
15-19 governing board on a matter relating to the oversight and provision
15-20 of mental health and mental retardation services. The appointment
15-21 of a committee does not relieve the authority's governing board of
15-22 a responsibility prescribed by this subtitle.
15-23 SECTION 14. Section 532.008 and Subsections (e) through (h),
15-24 Section 533.035, Health and Safety Code, are repealed.
15-25 SECTION 15. This Act takes effect September 1, 1999.
15-26 SECTION 16. The importance of this legislation and the
16-1 crowded condition of the calendars in both houses create an
16-2 emergency and an imperative public necessity that the
16-3 constitutional rule requiring bills to be read on three several
16-4 days in each house be suspended, and this rule is hereby suspended.
_______________________________ _______________________________
President of the Senate Speaker of the House
I hereby certify that S.B. No. 542 passed the Senate on
March 24, 1999, by a viva-voce vote; and that the Senate concurred
in House amendments on May 28, 1999, by a viva-voce vote.
_______________________________
Secretary of the Senate
I hereby certify that S.B. No. 542 passed the House, with
amendments, on May 26, 1999, by a non-record vote.
_______________________________
Chief Clerk of the House
Approved:
_______________________________
Date
_______________________________
Governor