1-1 By: Madla S.B. No. 542
1-2 (In the Senate - Filed February 16, 1999; February 17, 1999,
1-3 read first time and referred to Committee on Health Services;
1-4 March 10, 1999, reported favorably by the following vote: Yeas 5,
1-5 Nays 0; March 10, 1999, sent to printer.)
1-6 A BILL TO BE ENTITLED
1-7 AN ACT
1-8 relating to the operation and management of local mental health and
1-9 mental retardation authorities and community centers.
1-10 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-11 SECTION 1. Section 411.115, Government Code, is amended to
1-12 read as follows:
1-13 Sec. 411.115. ACCESS TO CRIMINAL HISTORY RECORD INFORMATION:
1-14 TEXAS DEPARTMENT OF MENTAL HEALTH AND MENTAL RETARDATION; LOCAL
1-15 AUTHORITIES; COMMUNITY CENTERS. (a) In this section, "local
1-16 mental health authority," "local mental retardation authority," and
1-17 "community center" have [has] the meanings [meaning] assigned by
1-18 Section 531.002, Health and Safety Code.
1-19 (b) The Texas Department of Mental Health and Mental
1-20 Retardation, a local mental health or mental retardation authority,
1-21 or a community center is entitled to obtain from the department
1-22 criminal history record information maintained by the department
1-23 that relates to a person:
1-24 (1) who is:
1-25 (A) an applicant for employment with the Texas
1-26 Department of Mental Health and Mental Retardation, a local mental
1-27 health or mental retardation authority, or a community center;
1-28 (B) an employee of the Texas Department of
1-29 Mental Health and Mental Retardation, a local mental health or
1-30 mental retardation authority, or a community center;
1-31 (C) [an applicant for employment with a
1-32 community center;]
1-33 [(D) an employee of a community center;]
1-34 [(E)] an applicant for employment with or an
1-35 employee of a business or person that contracts with the Texas
1-36 Department of Mental Health and Mental Retardation, a local mental
1-37 health or mental retardation authority, or a community center to
1-38 provide residential services to patients with mental illness or
1-39 clients with mental retardation who were furloughed or discharged
1-40 from a Texas Department of Mental Health and Mental Retardation
1-41 facility or community center;
1-42 (D) [(F)] a volunteer with the Texas Department
1-43 of Mental Health and Mental Retardation, a local mental health or
1-44 mental retardation authority, or a community center;
1-45 [(G) a volunteer with a community center;] or
1-46 (E) [(H)] a volunteer applicant; and
1-47 (2) who would be placed in direct contact with
1-48 patients with mental illness or clients with mental retardation.
1-49 (c) The Texas Department of Mental Health and Mental
1-50 Retardation, a local mental health or mental retardation authority,
1-51 or a community center is entitled to obtain only criminal history
1-52 record information that relates to:
1-53 (1) a sexual offense;
1-54 (2) a drug-related offense;
1-55 (3) a theft offense;
1-56 (4) criminal homicide;
1-57 (5) assault or battery; or
1-58 (6) an offense involving personal injury or threat.
1-59 (d) Criminal history record information obtained by the
1-60 mental health department, a local mental health or mental
1-61 retardation authority, or a community center under Subsection (b)
1-62 may not be released or disclosed to a person, other than the
1-63 contractor that employs the person who is the subject of the
1-64 criminal history record information, except on court order or with
2-1 the consent of the person who is the subject of the criminal
2-2 history record information.
2-3 (e) The Texas Department of Mental Health and Mental
2-4 Retardation, a local mental health or mental retardation authority,
2-5 or a community center shall collect and destroy conviction
2-6 information that relates to a person immediately after making [the
2-7 department or a contractor makes] an employment decision or taking
2-8 a [takes any] personnel action relating to the person who is the
2-9 subject of the criminal history record information.
2-10 SECTION 2. Subdivision (3), Section 250.001, Health and
2-11 Safety Code, is amended to read as follows:
2-12 (3) "Facility" means:
2-13 (A) a nursing home, custodial care home, or
2-14 other institution licensed by the Texas Department of Human
2-15 Services under Chapter 242;
2-16 (B) a personal care facility licensed by the
2-17 Texas Department of Human Services under Chapter 247;
2-18 (C) a home health agency licensed by the Texas
2-19 Department of Health under Chapter 142;
2-20 (D) an adult day care facility or adult day
2-21 health care facility licensed by the Texas Department of Human
2-22 Services under Chapter 103, Human Resources Code;
2-23 (E) a facility for persons with mental
2-24 retardation licensed or certified by the Texas Department of Human
2-25 Services;
2-26 (F) an unlicensed attendant care agency that
2-27 contracts with the Texas Department of Human Services;
2-28 (G) an intermediate care facility for persons
2-29 with mental retardation that is certified by the Texas Department
2-30 of Human Services to participate in the Medicaid program under
2-31 Title XIX of the Social Security Act (42 U.S.C. Section 1396 et
2-32 seq.);
2-33 (H) an adult foster care provider that contracts
2-34 with the Texas Department of Human Services; [or]
2-35 (I) a facility that provides mental health
2-36 services and that is operated by or contracts with the Texas
2-37 Department of Mental Health and Mental Retardation; or
2-38 (J) a local mental health or mental retardation
2-39 authority designated under Section 533.035.
2-40 SECTION 3. Section 533.003, Health and Safety Code, is
2-41 amended to read as follows:
2-42 Sec. 533.003. USE OF FUNDS FOR VOLUNTEER PROGRAMS IN LOCAL
2-43 AUTHORITIES AND COMMUNITY CENTERS. (a) To develop or expand a
2-44 volunteer program [programs] in a local mental health or mental
2-45 retardation authority or a community center [centers], the
2-46 department may allocate available funds appropriated for providing
2-47 volunteer services.
2-48 (b) The department shall develop formal policies that
2-49 encourage the growth and development of volunteer services in local
2-50 mental health or mental retardation authorities and community
2-51 centers.
2-52 SECTION 4. Subsections (d) and (i), Section 533.007, Health
2-53 and Safety Code, are redesignated as Subsections (a) and (b) and
2-54 amended to read as follows:
2-55 (a) [(d)] The department, a local mental health or mental
2-56 retardation authority, or a community center may deny employment or
2-57 volunteer status to an applicant if:
2-58 (1) the department, authority, or community center
2-59 determines that the applicant's criminal history record information
2-60 indicates that the person is not qualified or suitable; or
2-61 (2) the applicant fails to provide a complete set of
2-62 fingerprints if the department establishes that method of obtaining
2-63 criminal history record information.
2-64 (b) [(i)] The board shall adopt rules relating to the use of
2-65 information obtained under this section, including rules that
2-66 prohibit an adverse personnel action based on arrest warrant or
2-67 wanted persons information received by the department.
2-68 SECTION 5. Section 533.0075, Health and Safety Code, is
2-69 amended to read as follows:
3-1 Sec. 533.0075. EXCHANGE OF EMPLOYMENT RECORDS. The
3-2 department, a local mental health or mental retardation authority,
3-3 or [shall make available to] a community center may exchange with
3-4 one another [, on request,] the employment records of an [a
3-5 department] employee or former employee who applies for employment
3-6 at the department, authority, or community center.
3-7 SECTION 6. Subsection (a), Section 533.009, Health and
3-8 Safety Code, is amended to read as follows:
3-9 (a) Department facilities, local mental health or mental
3-10 retardation authorities, community centers, other designated
3-11 providers, and subcontractees of mental health and mental
3-12 retardation services are component parts of one service delivery
3-13 system within which patient or client records may be exchanged
3-14 without the patient's or client's consent.
3-15 SECTION 7. Subsections (c) and (d), Section 533.0355, Health
3-16 and Safety Code, are amended to read as follows:
3-17 (c) If the board establishes a pilot program, the department
3-18 shall:
3-19 (1) evaluate the pilot project at least annually to
3-20 determine the feasibility of employing the authority structure in
3-21 other areas of the state or statewide;
3-22 (2) prepare a report on the success of the pilot
3-23 project that includes a list of statutory restrictions that would
3-24 impair the permanent implementation of the authority structure in
3-25 other areas of the state and suggested legislative changes; and
3-26 (3) submit the report to the 77th Legislature [75th
3-27 and 76th legislatures] on January 15, 2001 [1997, and January 15,
3-28 1999, respectively].
3-29 (d) This section expires September 1, 2001 [1999].
3-30 SECTION 8. Section 534.035, Health and Safety Code, is
3-31 amended to read as follows:
3-32 Sec. 534.035. [PROGRAM] REVIEW, [AND MANAGEMENT] AUDIT, AND
3-33 APPEAL PROCEDURES. (a) The department by rule shall establish
3-34 review, audit, and appeal procedures [as a contract requirement]
3-35 for community centers. The procedures must [program review and
3-36 management audit procedures to] ensure that reviews and audits are
3-37 conducted in sufficient quantity and type to provide reasonable
3-38 assurance that a community center has adequate and appropriate
3-39 fiscal controls [exist in community centers].
3-40 (b) In a community center plan approved under Section
3-41 534.001, the center must agree to comply with the review and audit
3-42 procedures established under this section. [The department shall
3-43 conduct periodic program reviews at each community center. The
3-44 commissioner or the commissioner's designee shall prepare, publish,
3-45 and distribute a formal procedure for the periodic program
3-46 reviews.]
3-47 (c) [The department shall conduct periodic management audits
3-48 at each community center. The director of the internal audit unit,
3-49 with the approval of the board's audit committee, shall prepare and
3-50 publish a formal risk assessment procedure for the audits. The
3-51 department shall include in a management audit a comprehensive
3-52 review of the center's annual financial and compliance audit
3-53 activities required under Section 534.068.]
3-54 [(d) After a program review or management audit is
3-55 conducted, the department shall send to the community center a
3-56 written report that identifies in clear language each significant
3-57 deficiency identified and each question raised by the review or
3-58 audit.]
3-59 [(e) The board of trustees shall provide to the department a
3-60 written response to the concerns raised by the review or audit
3-61 within the period prescribed by department rule. The response
3-62 must:]
3-63 [(1) describe any action taken or to be taken to
3-64 correct an identified deficiency;]
3-65 [(2) provide narrative responses to questions relating
3-66 to policies or procedures raised in the review or audit; and]
3-67 [(3) give notice of any disagreement the board of
3-68 trustees has with a specific finding of the review or audit.]
3-69 [(f) Within the period prescribed by department rules, the
4-1 commissioner or the board's audit committee shall review the
4-2 community center's responses and shall notify in writing the
4-3 community center of any inadequacy or deficiency found in the
4-4 response. The community center may provide additional responses to
4-5 the commissioner. The commissioner shall establish a reasonable
4-6 deadline for receiving responses.]
4-7 [(g)] If, by a [the] date prescribed by the commissioner,
4-8 the community center fails to respond to a deficiency identified in
4-9 a review or audit to the satisfaction of the commissioner, the
4-10 department may sanction the center in accordance with board rules.
4-11 [discontinue the transfer of related department funds to the
4-12 community center until the dispute is resolved. The community
4-13 center is entitled to notice and an opportunity for a hearing
4-14 before the transfer of department funds is discontinued. The board
4-15 by rule shall prescribe the hearings procedure.]
4-16 [(h) The department may withhold funds during the pendency
4-17 of an appeal to a court if the department hearing upholds the
4-18 discontinuation of the funds. The department shall transfer the
4-19 withheld funds to the community center if the final determination
4-20 is favorable to the community center.]
4-21 [(i) The department shall incorporate the community center's
4-22 responses into the official management audit report in accordance
4-23 with the Government Auditing Standards published by the United
4-24 States General Accounting Office. The department shall publish the
4-25 final report within the period prescribed by department rules, but
4-26 not later than the 60th day after the date on which the audit staff
4-27 conducts the official exit conference with the community center.
4-28 If the department disagrees with the community center's responses
4-29 as provided by Subsection (f), the department shall publish the
4-30 official report within the period prescribed by department rules.]
4-31 SECTION 9. Section 534.059, Health and Safety Code, is
4-32 amended to read as follows:
4-33 Sec. 534.059. CONTRACT COMPLIANCE FOR LOCAL AUTHORITIES
4-34 [PERFORMANCE STANDARDS]. (a) The department shall evaluate
4-35 [specify performance standards, including measures of results, to
4-36 use in evaluating the compliance of] a local mental health or
4-37 mental retardation authority's compliance [authority] with its
4-38 [obligation or] contract to ensure the provision of [provide]
4-39 specific services to priority populations.
4-40 (b) If, by a date set by the commissioner, a local mental
4-41 health or mental retardation authority fails to comply with its
4-42 contract to ensure the provision of services to the satisfaction of
4-43 the commissioner, the department may impose a sanction as provided
4-44 by the applicable contract rule until the dispute is resolved. The
4-45 department shall notify the authority in writing of the
4-46 department's decision to impose a sanction.
4-47 (c) A local mental health or mental retardation authority
4-48 may appeal the department's decision to impose a sanction on the
4-49 authority. The board by rule shall prescribe the appeal procedure.
4-50 (d) The filing of a notice of appeal stays the imposition of
4-51 the department's decision to impose a sanction except when an act
4-52 or omission by a local mental health or mental retardation
4-53 authority is endangering or may endanger the life, health, welfare,
4-54 or safety of a person.
4-55 (e) While an appeal under this section is pending, the
4-56 department may limit general revenue allocations to a local mental
4-57 health or mental retardation authority to monthly distributions.
4-58 SECTION 10. Section 534.060, Health and Safety Code, is
4-59 amended to read as follows:
4-60 Sec. 534.060. PROGRAM AND SERVICE MONITORING AND REVIEW OF
4-61 LOCAL AUTHORITIES. (a) The department shall develop mechanisms
4-62 for monitoring the services provided by a local mental health or
4-63 mental retardation authority [and the authority's subcontractors].
4-64 (b) The department shall review the program quality and
4-65 program performance results of a [each] local mental health or
4-66 mental retardation authority in accordance with a risk assessment
4-67 and evaluation system appropriate to the authority's contract
4-68 requirements. The department may determine the scope of the [each]
4-69 review.
5-1 (c) A [Each] contract between a local mental health or
5-2 mental retardation authority and the department must authorize the
5-3 department to have unrestricted access to all facilities, records,
5-4 data, and other information under the control of the [local mental
5-5 health or mental retardation] authority[, the authority's
5-6 subcontractors, or the designated provider] as necessary to enable
5-7 the department to audit, monitor, and review the financial and
5-8 program activities and services associated with department funds.
5-9 SECTION 11. Subchapter B, Chapter 534, Health and Safety
5-10 Code, is amended by adding Sections 534.0601, 534.0602, and
5-11 534.0603 to read as follows:
5-12 Sec. 534.0601. COORDINATED PROGRAM AUDITS OF LOCAL
5-13 AUTHORITIES. (a) The department shall coordinate with each agency
5-14 or department of the state that contracts with a local mental
5-15 health or mental retardation authority to prescribe procedures for
5-16 a coordinated program audit of the authority. The procedures must
5-17 be:
5-18 (1) consistent with the requirements for the receipt
5-19 of federal funding by the authority; and
5-20 (2) based on risk assessment.
5-21 (b) A program audit must evaluate:
5-22 (1) the extent to which a local mental health or
5-23 mental retardation authority is achieving the results or benefits
5-24 established by an agency or department of the state or by the
5-25 legislature;
5-26 (2) the effectiveness of the authority's organization,
5-27 program, activities, or functions; and
5-28 (3) the authority's compliance with law.
5-29 (c) A program audit of a local mental health or mental
5-30 retardation authority must be performed in accordance with the
5-31 procedures prescribed under this section.
5-32 (d) The department may not implement a procedure for a
5-33 program audit under this section without the approval of the Health
5-34 and Human Services Commission.
5-35 (e) This section does not prohibit an agency, department, or
5-36 other entity providing funding to a local mental health or mental
5-37 retardation authority from investigating a complaint against the
5-38 authority or performing additional contract monitoring of the
5-39 authority.
5-40 Sec. 534.0602. FINANCIAL AUDITS OF LOCAL AUTHORITIES.
5-41 (a) The department shall prescribe procedures for a financial
5-42 audit of a local mental health or mental retardation authority.
5-43 The procedures must be consistent with requirements for the receipt
5-44 of federal funding by the authority.
5-45 (b) The department shall develop the procedures with the
5-46 assistance of each agency or department of the state that contracts
5-47 with a local mental health or mental retardation authority. The
5-48 department shall incorporate each agency's or department's
5-49 financial or compliance requirements for an authority into a single
5-50 audit that meets the requirements of Section 534.068.
5-51 (c) Before prescribing or amending a procedure under this
5-52 section, the department must set a deadline for agencies and
5-53 departments of the state that contract with local mental health and
5-54 mental retardation authorities to submit proposals relating to the
5-55 procedure.
5-56 (d) An agency or department of the state that contracts with
5-57 a local mental health or mental retardation authority must comply
5-58 with a procedure developed under this section.
5-59 (e) The department may not implement a procedure under this
5-60 section without the approval of the Health and Human Services
5-61 Commission.
5-62 Sec. 534.0603. ADDITIONAL FINANCIAL AUDIT ACTIVITY.
5-63 (a) The department shall develop protocols for an agency or
5-64 department of the state to conduct additional financial audit
5-65 activities of a local mental health or mental retardation
5-66 authority.
5-67 (b) An agency or department of the state may not conduct
5-68 additional financial audit activities relating to a local mental
5-69 health or mental retardation authority without the approval of the
6-1 Health and Human Services Commission.
6-2 SECTION 12. Section 534.061, Health and Safety Code, is
6-3 amended to read as follows:
6-4 Sec. 534.061. PROGRAM AND SERVICE MONITORING AND REVIEW OF
6-5 CERTAIN COMMUNITY SERVICES. (a) The department shall develop
6-6 mechanisms for periodically monitoring the services of [provided
6-7 by] a [private] provider who contracts with a local mental health
6-8 or mental retardation authority to provide services for persons
6-9 with mental retardation or mental illness at the community level,
6-10 including residential services, if state funds or funds for which
6-11 the state has oversight responsibility are used to pay for at least
6-12 part of the services.
6-13 (b) The local mental health or mental retardation authority
6-14 [department] shall monitor the services to ensure that the
6-15 [private] provider is delivering the services in a manner
6-16 consistent with the provider's [the] contract. [The department
6-17 shall also provide for periodic fiscal audits of those private
6-18 providers.]
6-19 (c) Each [private] provider contract involving the use of
6-20 state funds or funds for which the state has oversight
6-21 responsibility must authorize the local mental health or mental
6-22 retardation authority or the authority's designee and the
6-23 department or the department's designee to have unrestricted access
6-24 to all facilities, records, data, and other information under the
6-25 control of the provider as necessary to enable the department to
6-26 audit, monitor, and review the financial and program activities and
6-27 services associated with the contract.
6-28 (d) The department may withdraw funding from a local mental
6-29 health or mental retardation authority that [if the authority]
6-30 fails to cancel a contract with a [private] provider involving
6-31 [that involves] the use of state funds or funds for which the state
6-32 has oversight responsibility if:
6-33 (1) the [private] provider is not fulfilling its
6-34 contractual obligations; and
6-35 (2) the authority has [does] not taken [take]
6-36 appropriate action to remedy the problem in accordance with board
6-37 rules.
6-38 (e) The board by rule shall prescribe procedures a local
6-39 mental health or mental retardation authority must follow in
6-40 remedying a problem with a [private] provider.
6-41 SECTION 13. Subchapter B, Chapter 534, Health and Safety
6-42 Code, is amended by adding Section 534.071 to read as follows:
6-43 Sec. 534.071. LOCAL AUTHORITY ADVISORY COMMITTEES. A local
6-44 mental health or mental retardation authority may appoint a
6-45 committee to advise its governing board on a matter relating to the
6-46 oversight and provision of mental health and mental retardation
6-47 services. The appointment of a committee does not relieve the
6-48 authority's governing board of a responsibility prescribed by this
6-49 subtitle.
6-50 SECTION 14. Section 532.008 and Subsections (e) through (h),
6-51 Section 533.035, Health and Safety Code, are repealed.
6-52 SECTION 15. This Act takes effect September 1, 1999.
6-53 SECTION 16. The importance of this legislation and the
6-54 crowded condition of the calendars in both houses create an
6-55 emergency and an imperative public necessity that the
6-56 constitutional rule requiring bills to be read on three several
6-57 days in each house be suspended, and this rule is hereby suspended.
6-58 * * * * *