By: Zaffirini, Moncrief S.B. No. 367
A BILL TO BE ENTITLED
1-1 AN ACT
1-2 relating to ensuring an appropriate care setting for a person with
1-3 a disability.
1-4 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-5 SECTION 1. Subchapter B, Chapter 531, Government Code, is
1-6 amended by adding Sections 531.0244, 531.02441, and 531.02442 to
1-7 read as follows:
1-8 Sec. 531.0244. ENSURING APPROPRIATE CARE SETTING FOR PERSONS
1-9 WITH DISABILITIES. (a) The commission and appropriate health and
1-10 human services agencies shall implement a comprehensive,
1-11 effectively working plan that provides a system of services and
1-12 support that fosters independence and productivity and provides
1-13 meaningful opportunities for a person with a disability to live in
1-14 the most appropriate care setting, considering:
1-15 (1) the person's physical, medical, and behavioral
1-16 needs;
1-17 (2) the least restrictive care setting in which the
1-18 person can reside;
1-19 (3) the person's choice of care settings in which to
1-20 reside;
1-21 (4) the availability of state resources; and
1-22 (5) the availability of state programs for which the
1-23 person qualifies that can assist the person.
1-24 (b) The comprehensive, effectively working plan required by
1-25 Subsection (a) must require appropriate health and human services
2-1 agencies to:
2-2 (1) provide to a person with a disability living in an
2-3 institution and to any other person as required by Sections 531.042
2-4 and 531.02442 information regarding care and support options
2-5 available to the person with a disability, including
2-6 community-based services appropriate to the needs of that person;
2-7 (2) recognize that certain persons with disabilities
2-8 are represented by legally authorized representatives as defined by
2-9 Section 241.151, Health and Safety Code, whom the agencies must
2-10 include in any decision-making process facilitated by the plan's
2-11 implementation;
2-12 (3) facilitate a timely and appropriate transfer of a
2-13 person with a disability from an institution to an appropriate
2-14 setting in the community if:
2-15 (A) the person chooses to live in the community;
2-16 (B) the person's treating professionals
2-17 determine the transfer is appropriate; and
2-18 (C) the transfer can be reasonably accommodated,
2-19 considering the state's available resources and the needs of other
2-20 persons with disabilities; and
2-21 (4) develop strategies to prevent the unnecessary
2-22 placement in an institution of a person with a disability who is
2-23 living in the community but is in imminent risk of requiring
2-24 placement in an institution because of a lack of community
2-25 services.
2-26 (c) For purposes of developing the strategies required by
3-1 Subsection (b)(4), a person with a mental illness who is admitted
3-2 to a facility of the Texas Department of Mental Health and Mental
3-3 Retardation for inpatient mental health services three or more
3-4 times during a 180-day period is presumed to be in imminent risk of
3-5 requiring placement in an institution. The strategies must be
3-6 developed in a manner that presumes the person's eligibility for
3-7 and the appropriateness of intensive community-based services and
3-8 support.
3-9 (d) In implementing the plan required by Subsection (a), a
3-10 health and human services agency may not deny an eligible person
3-11 with a disability access to an institution or remove an eligible
3-12 person with a disability from an institution if the person prefers
3-13 the type and degree of care provided in the institution and that
3-14 care is appropriate for the person. A health and human services
3-15 agency may deny the person access to an institution or remove the
3-16 person from an institution to protect the person's health or
3-17 safety.
3-18 (e) Each appropriate health and human services agency shall
3-19 implement the strategies and recommendations under the plan
3-20 required by Subsection (a) subject to the availability of funds.
3-21 (f) Not later than December 1 of each even-numbered year,
3-22 the commissioner shall submit to the governor and the legislature a
3-23 report on the status of the implementation of the plan required by
3-24 Subsection (a). The report must include recommendations on any
3-25 statutory or other action necessary to implement the plan.
3-26 Sec. 531.02441. INTERAGENCY TASK FORCE ON ENSURING
4-1 APPROPRIATE CARE SETTINGS FOR PERSONS WITH DISABILITIES. (a) The
4-2 commissioner shall establish an interagency task force to assist
4-3 the commission and appropriate health and human services agencies
4-4 in developing a comprehensive, effectively working plan to ensure
4-5 appropriate care settings for persons with disabilities.
4-6 (b) The commissioner shall determine the number of members
4-7 of the task force. The commissioner shall appoint as members of
4-8 the task force:
4-9 (1) representatives of appropriate health and human
4-10 services agencies, including the Texas Department of Human Services
4-11 and the Texas Department of Mental Health and Mental Retardation;
4-12 (2) representatives of related work groups, including
4-13 representatives of the work groups established under Sections
4-14 22.034 and 22.035, Human Resources Code;
4-15 (3) representatives of consumer and family advocacy
4-16 groups; and
4-17 (4) representatives of service providers for persons
4-18 with disabilities.
4-19 (c) The commissioner shall designate a member of the task
4-20 force to serve as presiding officer. The members of the task force
4-21 shall elect any other necessary officers.
4-22 (d) The task force shall meet at the call of the
4-23 commissioner.
4-24 (e) A member of the task force serves at the will of the
4-25 commissioner.
4-26 (f) A member of the task force may not receive compensation
5-1 for serving on the task force but is entitled to reimbursement for
5-2 travel expenses incurred by the member while conducting the
5-3 business of the task force as provided by the General
5-4 Appropriations Act.
5-5 (g) The task force shall study and make recommendations to
5-6 the commission on:
5-7 (1) developing the comprehensive, effectively working
5-8 plan required by Section 531.0244(a) to ensure appropriate care
5-9 settings for persons with disabilities; and
5-10 (2) identifying appropriate components of the pilot
5-11 program established under Section 22.037, Human Resources Code, for
5-12 coordination and integration among the Texas Department of Human
5-13 Services, the Texas Department of Mental Health and Mental
5-14 Retardation, and the Department of Protective and Regulatory
5-15 Services.
5-16 (h) In addition to making recommendations under Subsection
5-17 (g), the task force shall advise the commission and appropriate
5-18 health and human services agencies with respect to implementing the
5-19 comprehensive, effectively working plan required by Section
5-20 531.0244(a), giving primary consideration to:
5-21 (1) methods to identify and assess each person who
5-22 resides in an institution but chooses to live in the community and
5-23 for whom a transfer from an institution to the community is
5-24 appropriate, as determined by the person's treating professionals;
5-25 (2) determining the health and human services
5-26 agencies' availability of community care and support options
6-1 relating to all persons described by Subdivision (1);
6-2 (3) identifying, addressing, and monitoring barriers
6-3 to implementation of the plan to improve that implementation; and
6-4 (4) identifying funding options for the plan.
6-5 (i) Not later than September 1 of each year, the task force
6-6 shall submit a report to the commissioner on its findings and
6-7 recommendations required by Subsection (g).
6-8 Sec. 531.02442. COMMUNITY LIVING OPTIONS INFORMATION PROCESS
6-9 FOR CERTAIN PERSONS WITH MENTAL RETARDATION. (a) In this section:
6-10 (1) "Institution" means:
6-11 (A) a residential care facility operated or
6-12 maintained by the Texas Department of Mental Health and Mental
6-13 Retardation to provide 24-hour services, including residential
6-14 services, to persons with mental retardation; or
6-15 (B) an ICF-MR, as defined by Section 531.002,
6-16 Health and Safety Code.
6-17 (2) "Legally authorized representative" has the
6-18 meaning assigned by Section 241.151, Health and Safety Code.
6-19 (3) "Local mental retardation authority" has the
6-20 meaning assigned by Section 531.002, Health and Safety Code.
6-21 (b) In addition to providing information regarding care and
6-22 support options as required by Section 531.042, the Texas
6-23 Department of Mental Health and Mental Retardation shall implement
6-24 a community living options information process in each institution
6-25 to inform persons with mental retardation who reside in the
6-26 institution and their legally authorized representatives of
7-1 alternative community living options.
7-2 (c) The department shall provide the information required by
7-3 Subsection (b) through the community living options information
7-4 process at least annually. The department shall also provide the
7-5 information at any other time on request by a person with mental
7-6 retardation who resides in an institution or the person's legally
7-7 authorized representative.
7-8 (d) If a person with mental retardation residing in an
7-9 institution or the person's legally authorized representative
7-10 indicates a desire to pursue an alternative community living option
7-11 after receiving the information provided under this section, the
7-12 department shall refer the person or the person's legally
7-13 authorized representative to the local mental retardation
7-14 authority. The local mental retardation authority shall place the
7-15 person in an alternative community living option, subject to the
7-16 availability of funds, or on a waiting list for those options if
7-17 the options are not available to the person for any reason on or
7-18 before the 30th day after the date the person or the person's
7-19 legally authorized representative is referred to the local mental
7-20 retardation authority.
7-21 (e) The department shall document in the records of each
7-22 person with mental retardation who resides in an institution the
7-23 information provided to the person or the person's legally
7-24 authorized representative through the community living options
7-25 information process and the results of that process.
7-26 SECTION 2. Section 531.042, Government Code, is amended to
8-1 read as follows:
8-2 Sec. 531.042. [COMMUNITY-BASED SERVICES] INFORMATION AND
8-3 ASSISTANCE REGARDING CARE AND SUPPORT OPTIONS; REPORTS. (a) The
8-4 commissioner by rule shall require each health and human services
8-5 agency to provide to each patient or client of the agency and to at
8-6 least one family member of the patient or client, if possible,
8-7 information regarding all care and support options available to the
8-8 patient or client, including community-based services appropriate
8-9 to the needs of the patient or client, before the agency allows the
8-10 patient or client to be placed in a care setting, including a
8-11 nursing home, intermediate care facility for the mentally retarded,
8-12 or institution for the mentally retarded licensed or operated by
8-13 the Department of Protective and Regulatory Services, to receive
8-14 care or services provided by the agency or by a person under an
8-15 agreement with the agency.
8-16 (b) The rules must require each health and human services
8-17 agency to provide information about all [community-based] long-term
8-18 care options and long-term support options available to the patient
8-19 or client, including community-based options and options available
8-20 through another agency or a private provider. The information must
8-21 be provided in a manner designed to maximize the patient's or
8-22 client's understanding of all available options. If the patient or
8-23 client has a legally authorized representative, as defined by
8-24 Section 241.151, Health and Safety Code [guardian], the information
8-25 must also be provided to that representative [the guardian]. If
8-26 the patient or client is in the conservatorship of a health and
9-1 human services agency, the information must be provided to the
9-2 patient's or client's agency caseworker and foster parents, if
9-3 applicable.
9-4 (c) A health and human services agency that provides a
9-5 patient, client, or other person as required by this section with
9-6 information regarding care and support options available to the
9-7 patient or client shall assist the patient, client, or other person
9-8 in taking advantage of an option selected by the patient, client,
9-9 or other person, subject to the availability of funds. If the
9-10 selected option is not immediately available for any reason, the
9-11 agency shall provide assistance in placing the patient or client on
9-12 a waiting list for that option [guardian with information as
9-13 provided by commission rules shall obtain a statement signed by the
9-14 patient or client, and, if the patient or client has a guardian, by
9-15 the patient's or client's guardian, that the patient or client has
9-16 been informed about community-based care and support options as
9-17 required by commission rules. The agency shall retain a copy of
9-18 each signed statement in the patient's or client's case records].
9-19 (d) Each health and human services agency annually and as
9-20 provided by commission rule shall report to the legislature
9-21 [commission] the number of community-based service placements and
9-22 residential-care placements the agency makes.
9-23 SECTION 3. Subchapter B, Chapter 531, Government Code, is
9-24 amended by adding Section 531.055 to read as follows:
9-25 Sec. 531.055. VOUCHER PROGRAM FOR TRANSITIONAL LIVING
9-26 ASSISTANCE FOR PERSONS WITH DISABILITIES. (a) In this section:
10-1 (1) "Institutional housing" means:
10-2 (A) an ICF-MR, as defined by Section 531.002,
10-3 Health and Safety Code;
10-4 (B) a nursing facility;
10-5 (C) a state hospital, state school, or state
10-6 center maintained and managed by the Texas Department of Mental
10-7 Health and Mental Retardation; or
10-8 (D) an institution for the mentally retarded
10-9 licensed or operated by the Department of Protective and Regulatory
10-10 Services.
10-11 (2) "Integrated housing" means housing in which a
10-12 person with a disability resides or may reside that is found in the
10-13 community but that is not exclusively occupied by persons with
10-14 disabilities and their care providers.
10-15 (b) Subject to the availability of funds, the commission
10-16 shall coordinate with the Texas Department of Human Services, the
10-17 Texas Department of Housing and Community Affairs, and the Texas
10-18 Department of Mental Health and Mental Retardation to develop a
10-19 housing assistance program to assist persons with disabilities in
10-20 moving from institutional housing to integrated housing. In
10-21 developing the program, the agencies shall address:
10-22 (1) eligibility requirements for assistance;
10-23 (2) the period during which a person with a disability
10-24 may receive assistance;
10-25 (3) the types of housing expenses to be covered under
10-26 the program; and
11-1 (4) the locations at which the program will be
11-2 operated.
11-3 (c) Subject to the availability of funds, the commission
11-4 shall require the Texas Department of Human Services to implement
11-5 and administer the housing assistance program under this section.
11-6 The department shall coordinate with the Texas Department of
11-7 Housing and Community Affairs in implementing and administering the
11-8 program, determining the availability of funding from the United
11-9 States Department of Housing and Urban Development, and obtaining
11-10 those funds.
11-11 (d) The Texas Department of Human Services and the Texas
11-12 Department of Housing and Community Affairs shall provide
11-13 information to the commission as necessary to facilitate the
11-14 development and implementation of the housing assistance program.
11-15 SECTION 4. Chapter 22, Human Resources Code, is amended by
11-16 adding Sections 22.037 and 22.038 to read as follows:
11-17 Sec. 22.037. PILOT PROGRAM FOR COMMUNITY-BASED ALTERNATIVES
11-18 FOR PERSONS WITH DISABILITIES. (a) In this section:
11-19 (1) "Institution" means:
11-20 (A) an ICF-MR, as defined by Section 531.002,
11-21 Health and Safety Code;
11-22 (B) a nursing facility; or
11-23 (C) an institution for the mentally retarded
11-24 licensed or operated by the Department of Protective and Regulatory
11-25 Services.
11-26 (2) "Legally authorized representative" has the
12-1 meaning assigned by Section 241.151, Health and Safety Code.
12-2 (b) The department, in cooperation with the Texas Department
12-3 of Mental Health and Mental Retardation and the Department of
12-4 Protective and Regulatory Services in accordance with the
12-5 memorandum of understanding adopted under Section 22.038, shall
12-6 develop and implement in at least three sites a pilot program to
12-7 provide a system of services and support that fosters independence
12-8 and productivity and provides meaningful opportunities for persons
12-9 with disabilities to live in the community. The department shall
12-10 determine the pilot sites, with one site in a rural area, one site
12-11 in an urban area, and one site in a mixed urban and rural area. In
12-12 determining the sites, the department shall consider the length of
12-13 waiting lists for community-based services and support in each area
12-14 and give preference to areas with the longest waiting lists.
12-15 (c) The pilot program, subject to the availability of funds,
12-16 shall include the following components:
12-17 (1) a comprehensive system of improved policies and
12-18 procedures to avoid inappropriately placing a person with a
12-19 disability in an institution, including policies and procedures
12-20 that require:
12-21 (A) a preadmission screening for the person that
12-22 includes the participation of hospital discharge staff and the
12-23 person's physician; and
12-24 (B) an analysis of the costs, benefits, and
12-25 effectiveness of placing the person in a community-based
12-26 alternative care setting;
13-1 (2) a program under which physicians who treat persons
13-2 with disabilities and hospital discharge staff are:
13-3 (A) educated about the availability of
13-4 community-based alternatives to institutionalization to reduce the
13-5 number of persons inappropriately placed in an institution; and
13-6 (B) required to inform a person with a
13-7 disability and any other person required to be provided information
13-8 under Section 531.042, Government Code, of all care and support
13-9 options available to the person with the disability, including
13-10 community-based care and support options, before that person makes
13-11 a decision regarding a long-term care placement;
13-12 (3) a program, including a program implemented through
13-13 grants to community-based organizations, to provide a transition
13-14 case manager to:
13-15 (A) assist a person with a disability in making
13-16 a transition from an institution to a community-based alternative
13-17 care setting after that person or the person's legally authorized
13-18 representative decides the person should make that transition; and
13-19 (B) coordinate with the local mental health or
13-20 mental retardation authority, as defined by Section 531.002, Health
13-21 and Safety Code, in:
13-22 (i) providing services to the person
13-23 related to the assistance described by Paragraph (A), if
13-24 applicable; and
13-25 (ii) conducting outreach initiatives under
13-26 Subdivision (4);
14-1 (4) a program to provide grants to community-based
14-2 organizations to conduct outreach initiatives to identify persons
14-3 with disabilities who may inappropriately reside in an institution;
14-4 and
14-5 (5) a program under which presumptive eligibility is
14-6 authorized for community-based care and support programs for a
14-7 person with a disability.
14-8 (d) The department shall implement each component of the
14-9 pilot program described by Subsection (c) for which the legislature
14-10 appropriates sufficient money. The department is not required to
14-11 implement a component if the legislature does not appropriate
14-12 sufficient money for that component.
14-13 (e) Not later than January 15, 2005, the department shall
14-14 submit a report concerning the effectiveness of the pilot program
14-15 to the presiding officers of both houses of the legislature and to
14-16 the governor. The report must include:
14-17 (1) an evaluation of the strengths and weaknesses of
14-18 each implemented component of the pilot program;
14-19 (2) a recommendation regarding the feasibility of
14-20 expanding the pilot program statewide; and
14-21 (3) a recommendation regarding adopting improved
14-22 policies and procedures with statewide applicability, as determined
14-23 from the information obtained in operating the pilot program, to
14-24 ensure appropriate care settings for persons with disabilities.
14-25 Sec. 22.038. MEMORANDUM OF UNDERSTANDING ON PILOT PROGRAM
14-26 FOR COMMUNITY-BASED ALTERNATIVES FOR PERSONS WITH DISABILITIES.
15-1 (a) The department, the Texas Department of Mental Health and
15-2 Mental Retardation, and the Department of Protective and Regulatory
15-3 Services shall adopt a memorandum of understanding to implement the
15-4 pilot program under Section 22.037.
15-5 (b) The memorandum of understanding must:
15-6 (1) define the responsibilities of each agency in
15-7 implementing the components of the pilot program; and
15-8 (2) provide for interagency coordination and
15-9 integration with respect to appropriate components of the pilot
15-10 program, including any components:
15-11 (A) that serve persons for whom each of the
15-12 agencies otherwise provides services;
15-13 (B) for which coordination and integration among
15-14 the agencies will result in the more efficient accomplishment of
15-15 the goals of the comprehensive, effectively working plan
15-16 implemented under Section 531.0244, Government Code; or
15-17 (C) that are recommended by the interagency task
15-18 force under Section 531.02441, Government Code, for coordination
15-19 and integration.
15-20 (c) Not later than September 1 of each year, the department,
15-21 the Texas Department of Mental Health and Mental Retardation, and
15-22 the Department of Protective and Regulatory Services shall review
15-23 and update the memorandum.
15-24 (d) Each agency by rule shall adopt the memorandum of
15-25 understanding and all revisions to the memorandum.
15-26 SECTION 5. Not later than December 1, 2001, the commissioner
16-1 of health and human services shall:
16-2 (1) establish the interagency task force under Section
16-3 531.02441, Government Code, as added by this Act; and
16-4 (2) adopt rules under Section 531.042, Government
16-5 Code, as amended by this Act.
16-6 SECTION 6. Not later than March 1, 2002, the Texas
16-7 Department of Mental Health and Mental Retardation shall implement
16-8 the community living options information process required by
16-9 Section 531.02442, Government Code, as added by this Act.
16-10 SECTION 7. Notwithstanding Subsection (a), Section 531.042,
16-11 Government Code, as amended by this Act, not later than March 1,
16-12 2002, each health and human services agency shall provide to each
16-13 patient or client of the agency who is in a care setting on the
16-14 effective date of this Act and to each other person as required by
16-15 Section 531.042, Government Code, as amended by this Act, the
16-16 information required by that section.
16-17 SECTION 8. Not later than December 1, 2002, the Texas
16-18 Department of Human Services shall, subject to the availability of
16-19 funds, implement the pilot program under Section 22.037, Human
16-20 Resources Code, as added by this Act.
16-21 SECTION 9. Not later than September 1, 2002, the Texas
16-22 Department of Human Services, the Texas Department of Mental Health
16-23 and Mental Retardation, and the Department of Protective and
16-24 Regulatory Services shall adopt the memorandum of understanding
16-25 under Section 22.038, Human Resources Code, as added by this Act.
16-26 SECTION 10. This Act takes effect September 1, 2001.