By Madla S.B. No. 542
76R3374 SMJ-D
A BILL TO BE ENTITLED
1-1 AN ACT
1-2 relating to the operation and management of local mental health and
1-3 mental retardation authorities and community centers.
1-4 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-5 SECTION 1. Section 411.115, Government Code, is amended to
1-6 read as follows:
1-7 Sec. 411.115. ACCESS TO CRIMINAL HISTORY RECORD INFORMATION:
1-8 TEXAS DEPARTMENT OF MENTAL HEALTH AND MENTAL RETARDATION; LOCAL
1-9 AUTHORITIES; COMMUNITY CENTERS. (a) In this section, "local
1-10 mental health authority," "local mental retardation authority," and
1-11 "community center" have [has] the meanings [meaning] assigned by
1-12 Section 531.002, Health and Safety Code.
1-13 (b) The Texas Department of Mental Health and Mental
1-14 Retardation, a local mental health or mental retardation authority,
1-15 or a community center is entitled to obtain from the department
1-16 criminal history record information maintained by the department
1-17 that relates to a person:
1-18 (1) who is:
1-19 (A) an applicant for employment with the Texas
1-20 Department of Mental Health and Mental Retardation, a local mental
1-21 health or mental retardation authority, or a community center;
1-22 (B) an employee of the Texas Department of
1-23 Mental Health and Mental Retardation, a local mental health or
1-24 mental retardation authority, or a community center;
2-1 (C) [an applicant for employment with a
2-2 community center;]
2-3 [(D) an employee of a community center;]
2-4 [(E)] an applicant for employment with or an
2-5 employee of a business or person that contracts with the Texas
2-6 Department of Mental Health and Mental Retardation, a local mental
2-7 health or mental retardation authority, or a community center to
2-8 provide residential services to patients with mental illness or
2-9 clients with mental retardation who were furloughed or discharged
2-10 from a Texas Department of Mental Health and Mental Retardation
2-11 facility or community center;
2-12 (D) [(F)] a volunteer with the Texas Department
2-13 of Mental Health and Mental Retardation, a local mental health or
2-14 mental retardation authority, or a community center;
2-15 [(G) a volunteer with a community center;] or
2-16 (E) [(H)] a volunteer applicant; and
2-17 (2) who would be placed in direct contact with
2-18 patients with mental illness or clients with mental retardation.
2-19 (c) The Texas Department of Mental Health and Mental
2-20 Retardation, a local mental health or mental retardation authority,
2-21 or a community center is entitled to obtain only criminal history
2-22 record information that relates to:
2-23 (1) a sexual offense;
2-24 (2) a drug-related offense;
2-25 (3) a theft offense;
2-26 (4) criminal homicide;
2-27 (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. Section 250.001(3), Health and Safety Code, is
3-18 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;
3-27 (D) an adult day care facility or adult day
4-1 health care facility licensed by the Texas Department of Human
4-2 Services under Chapter 103, Human Resources Code;
4-3 (E) a facility for persons with mental
4-4 retardation licensed or certified by the Texas Department of Human
4-5 Services;
4-6 (F) an unlicensed attendant care agency that
4-7 contracts with the Texas Department of Human Services;
4-8 (G) an intermediate care facility for persons
4-9 with mental retardation that is certified by the Texas Department
4-10 of Human Services to participate in the Medicaid program under
4-11 Title XIX of the Social Security Act (42 U.S.C. Section 1396 et
4-12 seq.);
4-13 (H) an adult foster care provider that contracts
4-14 with the Texas Department of Human Services; [or]
4-15 (I) a facility that provides mental health
4-16 services and that is operated by or contracts with the Texas
4-17 Department of Mental Health and Mental Retardation; or
4-18 (J) a local mental health or mental retardation
4-19 authority designated under Section 533.035.
4-20 SECTION 3. Section 533.003, Health and Safety Code, is
4-21 amended to read as follows:
4-22 Sec. 533.003. USE OF FUNDS FOR VOLUNTEER PROGRAMS IN LOCAL
4-23 AUTHORITIES AND COMMUNITY CENTERS. (a) To develop or expand a
4-24 volunteer program [programs] in a local mental health or mental
4-25 retardation authority or a community center [centers], the
4-26 department may allocate available funds appropriated for providing
4-27 volunteer services.
5-1 (b) The department shall develop formal policies that
5-2 encourage the growth and development of volunteer services in local
5-3 mental health or mental retardation authorities and community
5-4 centers.
5-5 SECTION 4. Sections 533.007(d) and (i), Health and Safety
5-6 Code, are redesignated as Sections 533.007(a) and (b) and amended
5-7 to read as follows:
5-8 (a) [(d)] The department, a local mental health or mental
5-9 retardation authority, or a community center may deny employment or
5-10 volunteer status to an applicant if:
5-11 (1) the department, authority, or community center
5-12 determines that the applicant's criminal history record information
5-13 indicates that the person is not qualified or suitable; or
5-14 (2) the applicant fails to provide a complete set of
5-15 fingerprints if the department establishes that method of obtaining
5-16 criminal history record information.
5-17 (b) [(i)] The board shall adopt rules relating to the use of
5-18 information obtained under this section, including rules that
5-19 prohibit an adverse personnel action based on arrest warrant or
5-20 wanted persons information received by the department.
5-21 SECTION 5. Section 533.0075, Health and Safety Code, is
5-22 amended to read as follows:
5-23 Sec. 533.0075. EXCHANGE OF EMPLOYMENT RECORDS. The
5-24 department, a local mental health or mental retardation authority,
5-25 or [shall make available to] a community center may exchange with
5-26 one another [, on request,] the employment records of an [a
5-27 department] employee or former employee who applies for employment
6-1 at the department, authority, or community center.
6-2 SECTION 6. Section 533.009(a), Health and Safety Code, is
6-3 amended to read as follows:
6-4 (a) Department facilities, local mental health or mental
6-5 retardation authorities, community centers, other designated
6-6 providers, and subcontractees of mental health and mental
6-7 retardation services are component parts of one service delivery
6-8 system within which patient or client records may be exchanged
6-9 without the patient's or client's consent.
6-10 SECTION 7. Sections 533.0355(c) and (d), Health and Safety
6-11 Code, are amended to read as follows:
6-12 (c) If the board establishes a pilot program, the department
6-13 shall:
6-14 (1) evaluate the pilot project at least annually to
6-15 determine the feasibility of employing the authority structure in
6-16 other areas of the state or statewide;
6-17 (2) prepare a report on the success of the pilot
6-18 project that includes a list of statutory restrictions that would
6-19 impair the permanent implementation of the authority structure in
6-20 other areas of the state and suggested legislative changes; and
6-21 (3) submit the report to the 77th legislature [75th
6-22 and 76th legislatures] on January 15, 2001 [January 15, 1997, and
6-23 January 15, 1999, respectively].
6-24 (d) This section expires September 1, 2001 [1999].
6-25 SECTION 8. Section 534.035, Health and Safety Code, is
6-26 amended to read as follows:
6-27 Sec. 534.035. [PROGRAM] REVIEW, [AND MANAGEMENT] AUDIT, AND
7-1 APPEAL PROCEDURES. (a) The department by rule shall establish
7-2 review, audit, and appeal procedures for community centers. The
7-3 procedures must [The department by rule shall establish as a
7-4 contract requirement for community centers program review and
7-5 management audit procedures to] ensure that reviews and audits are
7-6 conducted in sufficient quantity and type to provide reasonable
7-7 assurance that a community center has adequate and appropriate
7-8 fiscal controls [exist in community centers].
7-9 (b) In a community center plan approved under Section
7-10 534.001, the center must agree to comply with the review and audit
7-11 procedures established under this section. [The department shall
7-12 conduct periodic program reviews at each community center. The
7-13 commissioner or the commissioner's designee shall prepare, publish,
7-14 and distribute a formal procedure for the periodic program reviews.]
7-15 [(c) The department shall conduct periodic management audits
7-16 at each community center. The director of the internal audit unit,
7-17 with the approval of the board's audit committee, shall prepare and
7-18 publish a formal risk assessment procedure for the audits. The
7-19 department shall include in a management audit a comprehensive
7-20 review of the center's annual financial and compliance audit
7-21 activities required under Section 534.068.]
7-22 [(d) After a program review or management audit is
7-23 conducted, the department shall send to the community center a
7-24 written report that identifies in clear language each significant
7-25 deficiency identified and each question raised by the review or
7-26 audit.]
7-27 [(e) The board of trustees shall provide to the department a
8-1 written response to the concerns raised by the review or audit
8-2 within the period prescribed by department rule. The response
8-3 must:]
8-4 [(1) describe any action taken or to be taken to
8-5 correct an identified deficiency;]
8-6 [(2) provide narrative responses to questions relating
8-7 to policies or procedures raised in the review or audit; and]
8-8 [(3) give notice of any disagreement the board of
8-9 trustees has with a specific finding of the review or audit.]
8-10 [(f) Within the period prescribed by department rules, the
8-11 commissioner or the board's audit committee shall review the
8-12 community center's responses and shall notify in writing the
8-13 community center of any inadequacy or deficiency found in the
8-14 response. The community center may provide additional responses to
8-15 the commissioner. The commissioner shall establish a reasonable
8-16 deadline for receiving responses.]
8-17 (c) [(g)] If, by a [the] date prescribed by the
8-18 commissioner, the community center fails to respond to a deficiency
8-19 identified in a review or audit to the satisfaction of the
8-20 commissioner, the department may sanction the center in accordance
8-21 with board rules. [discontinue the transfer of related department
8-22 funds to the community center until the dispute is resolved. The
8-23 community center is entitled to notice and an opportunity for a
8-24 hearing before the transfer of department funds is discontinued.
8-25 The board by rule shall prescribe the hearings procedure.]
8-26 [(h) The department may withhold funds during the pendency
8-27 of an appeal to a court if the department hearing upholds the
9-1 discontinuation of the funds. The department shall transfer the
9-2 withheld funds to the community center if the final determination
9-3 is favorable to the community center.]
9-4 [(i) The department shall incorporate the community center's
9-5 responses into the official management audit report in accordance
9-6 with the Government Auditing Standards published by the United
9-7 States General Accounting Office. The department shall publish the
9-8 final report within the period prescribed by department rules, but
9-9 not later than the 60th day after the date on which the audit staff
9-10 conducts the official exit conference with the community center.
9-11 If the department disagrees with the community center's responses
9-12 as provided by Subsection (f), the department shall publish the
9-13 official report within the period prescribed by department rules.]
9-14 SECTION 9. Section 534.059, Health and Safety Code, is
9-15 amended to read as follows:
9-16 Sec. 534.059. CONTRACT COMPLIANCE FOR LOCAL AUTHORITIES
9-17 [PERFORMANCE STANDARDS]. (a) The department shall evaluate
9-18 [specify performance standards, including measures of results, to
9-19 use in evaluating the compliance of] a local mental health or
9-20 mental retardation authority's compliance [authority] with its
9-21 [obligation or] contract to ensure the provision of [provide]
9-22 specific services to priority populations.
9-23 (b) If, by a date set by the commissioner, a local mental
9-24 health or mental retardation authority fails to comply with its
9-25 contract to ensure the provision of services to the satisfaction of
9-26 the commissioner, the department may impose a sanction as provided
9-27 by the applicable contract rule until the dispute is resolved. The
10-1 department shall notify the authority in writing of the
10-2 department's decision to impose a sanction.
10-3 (c) A local mental health or mental retardation authority
10-4 may appeal the department's decision to impose a sanction on the
10-5 authority. The board by rule shall prescribe the appeal procedure.
10-6 (d) The filing of a notice of appeal stays the imposition of
10-7 the department's decision to impose a sanction except when an act
10-8 or omission by a local mental health or mental retardation
10-9 authority is endangering or may endanger the life, health, welfare,
10-10 or safety of a person.
10-11 (e) While an appeal under this section is pending, the
10-12 department may limit general revenue allocations to a local mental
10-13 health or mental retardation authority to monthly distributions.
10-14 SECTION 10. Section 534.060, Health and Safety Code, is
10-15 amended to read as follows:
10-16 Sec. 534.060. PROGRAM AND SERVICE MONITORING AND REVIEW OF
10-17 LOCAL AUTHORITIES. (a) The department shall develop mechanisms
10-18 for monitoring the services provided by a local mental health or
10-19 mental retardation authority [and the authority's subcontractors].
10-20 (b) The department shall review the program quality and
10-21 program performance results of a [each] local mental health or
10-22 mental retardation authority in accordance with a risk assessment
10-23 and evaluation system appropriate to the authority's contract
10-24 requirements. The department may determine the scope of the [each]
10-25 review.
10-26 (c) A [Each] contract between a local mental health or
10-27 mental retardation authority and the department must authorize the
11-1 department to have unrestricted access to all facilities, records,
11-2 data, and other information under the control of the [local mental
11-3 health or mental retardation] authority[, the authority's
11-4 subcontractors, or the designated provider] as necessary to enable
11-5 the department to audit, monitor, and review the financial and
11-6 program activities and services associated with department funds.
11-7 SECTION 11. Subchapter B, Chapter 534, Health and Safety
11-8 Code, is amended by adding Sections 534.0601, 534.0602, and
11-9 534.0603 to read as follows:
11-10 Sec. 534.0601. COORDINATED PROGRAM AUDITS OF LOCAL
11-11 AUTHORITIES. (a) The department shall coordinate with each agency
11-12 or department of the state that contracts with a local mental
11-13 health or mental retardation authority to prescribe procedures for
11-14 a coordinated program audit of the authority. The procedures must
11-15 be:
11-16 (1) consistent with the requirements for the receipt
11-17 of federal funding by the authority; and
11-18 (2) based on risk assessment.
11-19 (b) A program audit must evaluate:
11-20 (1) the extent to which a local mental health or
11-21 mental retardation authority is achieving the results or benefits
11-22 established by an agency or department of the state, or by the
11-23 legislature;
11-24 (2) the effectiveness of the authority's organization,
11-25 program, activities, or functions; and
11-26 (3) the authority's compliance with law.
11-27 (c) A program audit of a local mental health or mental
12-1 retardation authority must be performed in accordance with the
12-2 procedures prescribed under this section.
12-3 (d) The department may not implement a procedure for a
12-4 program audit under this section without the approval of the Health
12-5 and Human Services Commission.
12-6 (e) This section does not prohibit an agency, department, or
12-7 other entity providing funding to a local mental health or mental
12-8 retardation authority from investigating a complaint against the
12-9 authority or performing additional contract monitoring of the
12-10 authority.
12-11 Sec. 534.0602. FINANCIAL AUDITS OF LOCAL AUTHORITIES. (a)
12-12 The department shall prescribe procedures for a financial audit of
12-13 a local mental health or mental retardation authority. The
12-14 procedures must be consistent with requirements for the receipt of
12-15 federal funding by the authority.
12-16 (b) The department shall develop the procedures with the
12-17 assistance of each agency or department of the state that contracts
12-18 with a local mental health or mental retardation authority. The
12-19 department shall incorporate each agency or department's financial
12-20 or compliance requirements for an authority into a single audit
12-21 that meets the requirements of Section 534.068.
12-22 (c) Before prescribing or amending a procedure under this
12-23 section, the department must set a deadline for agencies and
12-24 departments of the state that contract with local mental health and
12-25 mental retardation authorities to submit proposals relating to the
12-26 procedure.
12-27 (d) An agency or department of the state that contracts with
13-1 a local mental health or mental retardation authority must comply
13-2 with a procedure developed under this section.
13-3 (e) The department may not implement a procedure under this
13-4 section without the approval of the Health and Human Services
13-5 Commission.
13-6 Sec. 534.0603. ADDITIONAL FINANCIAL AUDIT ACTIVITY. (a)
13-7 The department shall develop protocols for an agency or department
13-8 of the state to conduct additional financial audit activities of a
13-9 local mental health or mental retardation authority.
13-10 (b) An agency or department of the state may not conduct
13-11 additional financial audit activities relating to a local mental
13-12 health or mental retardation authority without the approval of the
13-13 Health and Human Services Commission.
13-14 SECTION 12. Section 534.061, Health and Safety Code, is
13-15 amended to read as follows:
13-16 Sec. 534.061. PROGRAM AND SERVICE MONITORING AND REVIEW OF
13-17 CERTAIN COMMUNITY SERVICES.
13-18 (a) The department shall develop mechanisms for periodically
13-19 monitoring the services of [provided by] a [private] provider who
13-20 contracts with a local mental health or mental retardation
13-21 authority to provide services for persons with mental retardation
13-22 or mental illness at the community level, including residential
13-23 services, if state funds or funds for which the state has oversight
13-24 responsibility are used to pay for at least part of the services.
13-25 (b) The local mental health or mental retardation authority
13-26 [department] shall monitor the services to ensure that the
13-27 [private] provider is delivering the services in a manner
14-1 consistent with the provider's [the] contract. [The department
14-2 shall also provide for periodic fiscal audits of those private
14-3 providers.]
14-4 (c) Each [private] provider contract involving the use of
14-5 state funds or funds for which the state has oversight
14-6 responsibility must authorize the local mental health or mental
14-7 retardation authority or the authority's designee and the
14-8 department or the department's designee to have unrestricted access
14-9 to all facilities, records, data, and other information under the
14-10 control of the provider as necessary to enable the department to
14-11 audit, monitor, and review the financial and program activities and
14-12 services associated with the contract.
14-13 (d) The department may withdraw funding from a local mental
14-14 health or mental retardation authority that [if the authority]
14-15 fails to cancel a contract with a [private] provider involving
14-16 [that involves] the use of state funds or funds for which the state
14-17 has oversight responsibility if:
14-18 (1) the [private] provider is not fulfilling its
14-19 contractual obligations; and
14-20 (2) the authority has [does] not taken [take]
14-21 appropriate action to remedy the problem in accordance with board
14-22 rules.
14-23 (e) The board by rule shall prescribe procedures a local
14-24 mental health or mental retardation authority must follow in
14-25 remedying a problem with a [private] provider.
14-26 SECTION 13. Subchapter B, Chapter 534, Health and Safety
14-27 Code, is amended by adding Section 534.071 to read as follows:
15-1 Sec. 534.071. LOCAL AUTHORITY ADVISORY COMMITTEES. A local
15-2 mental health or mental retardation authority may appoint a
15-3 committee to advise its governing board on a matter relating to the
15-4 oversight and provision of mental health and mental retardation
15-5 services. The appointment of a committee does not relieve the
15-6 authority's governing board of a responsibility prescribed by this
15-7 subtitle.
15-8 SECTION 14. Sections 532.008 and 533.035(e)-(h), Health and
15-9 Safety Code, are repealed.
15-10 SECTION 15. This Act takes effect September 1, 1999.
15-11 SECTION 16. The importance of this legislation and the
15-12 crowded condition of the calendars in both houses create an
15-13 emergency and an imperative public necessity that the
15-14 constitutional rule requiring bills to be read on three several
15-15 days in each house be suspended, and this rule is hereby suspended.