1-1 By: Zaffirini, Moncrief S.B. No. 367
1-2 (In the Senate - Filed January 24, 2001; January 25, 2001,
1-3 read first time and referred to Committee on Health and Human
1-4 Services; May 2, 2001, reported adversely, with favorable Committee
1-5 Substitute by the following vote: Yeas 7, Nays 1; May 2, 2001,
1-6 sent to printer.)
1-7 COMMITTEE SUBSTITUTE FOR S.B. No. 367 By: Carona
1-8 A BILL TO BE ENTITLED
1-9 AN ACT
1-10 relating to ensuring an appropriate care setting for a person with
1-11 a disability.
1-12 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-13 SECTION 1. Subchapter B, Chapter 531, Government Code, is
1-14 amended by adding Sections 531.0244, 531.02441, and 531.02442 to
1-15 read as follows:
1-16 Sec. 531.0244. ENSURING APPROPRIATE CARE SETTING FOR PERSONS
1-17 WITH DISABILITIES. (a) The commission and appropriate health and
1-18 human services agencies shall implement a comprehensive,
1-19 effectively working plan that provides a system of services and
1-20 support that fosters independence and productivity and provides
1-21 meaningful opportunities for a person with a disability to live in
1-22 the most appropriate care setting, considering:
1-23 (1) the person's physical, medical, and behavioral
1-24 needs;
1-25 (2) the least restrictive care setting in which the
1-26 person can reside;
1-27 (3) the person's choice of care settings in which to
1-28 reside;
1-29 (4) the availability of state resources; and
1-30 (5) the availability of state programs for which the
1-31 person qualifies that can assist the person.
1-32 (b) The comprehensive, effectively working plan required by
1-33 Subsection (a) must require appropriate health and human services
1-34 agencies to:
1-35 (1) provide to a person with a disability living in an
1-36 institution and to any other person as required by Sections 531.042
1-37 and 531.02442 information regarding care and support options
1-38 available to the person with a disability, including
1-39 community-based services appropriate to the needs of that person;
1-40 (2) recognize that certain persons with disabilities
1-41 are represented by legally authorized representatives as defined by
1-42 Section 241.151, Health and Safety Code, whom the agencies must
1-43 include in any decision-making process facilitated by the plan's
1-44 implementation;
1-45 (3) facilitate a timely and appropriate transfer of a
1-46 person with a disability from an institution to an appropriate
1-47 setting in the community if:
1-48 (A) the person chooses to live in the community;
1-49 (B) the person's treating professionals
1-50 determine the transfer is appropriate; and
1-51 (C) the transfer can be reasonably accommodated,
1-52 considering the state's available resources and the needs of other
1-53 persons with disabilities; and
1-54 (4) develop strategies to prevent the unnecessary
1-55 placement in an institution of a person with a disability who is
1-56 living in the community but is in imminent risk of requiring
1-57 placement in an institution because of a lack of community
1-58 services.
1-59 (c) For purposes of developing the strategies required by
1-60 Subsection (b)(4), a person with a mental illness who is admitted
1-61 to a facility of the Texas Department of Mental Health and Mental
1-62 Retardation for inpatient mental health services three or more
1-63 times during a 180-day period is presumed to be in imminent risk of
1-64 requiring placement in an institution. The strategies must be
2-1 developed in a manner that presumes the person's eligibility for
2-2 and the appropriateness of intensive community-based services and
2-3 support.
2-4 (d) In implementing the plan required by Subsection (a), a
2-5 health and human services agency may not deny an eligible person
2-6 with a disability access to an institution or remove an eligible
2-7 person with a disability from an institution if the person prefers
2-8 the type and degree of care provided in the institution and that
2-9 care is appropriate for the person.
2-10 (e) Not later than December 1 of each even-numbered year,
2-11 the commissioner shall submit to the governor and the legislature a
2-12 report on the status of the implementation of the plan required by
2-13 Subsection (a). The report must include recommendations on any
2-14 statutory or other action necessary to implement the plan.
2-15 Sec. 531.02441. INTERAGENCY TASK FORCE ON ENSURING
2-16 APPROPRIATE CARE SETTINGS FOR PERSONS WITH DISABILITIES. (a) The
2-17 commissioner shall establish an interagency task force to assist
2-18 the commission and appropriate health and human services agencies
2-19 in developing a comprehensive, effectively working plan to ensure
2-20 appropriate care settings for persons with disabilities.
2-21 (b) The commissioner shall determine the number of members
2-22 of the task force. The commissioner shall appoint as members of
2-23 the task force:
2-24 (1) representatives of appropriate health and human
2-25 services agencies, including the Texas Department of Human Services
2-26 and the Texas Department of Mental Health and Mental Retardation;
2-27 (2) representatives of related work groups, including
2-28 representatives of the work groups established under Sections
2-29 22.034 and 22.035, Human Resources Code;
2-30 (3) representatives of consumer and family advocacy
2-31 groups; and
2-32 (4) representatives of service providers for persons
2-33 with disabilities.
2-34 (c) The commissioner shall designate a member of the task
2-35 force to serve as presiding officer. The members of the task force
2-36 shall elect any other necessary officers.
2-37 (d) The task force shall meet at the call of the presiding
2-38 officer.
2-39 (e) A member of the task force serves at the will of the
2-40 commissioner.
2-41 (f) A member of the task force may not receive compensation
2-42 for serving on the task force but is entitled to reimbursement for
2-43 travel expenses incurred by the member while conducting the
2-44 business of the task force as provided by the General
2-45 Appropriations Act.
2-46 (g) The task force shall study and make recommendations to
2-47 the commission on:
2-48 (1) developing the comprehensive, effectively working
2-49 plan required by Section 531.0244(a) to ensure appropriate care
2-50 settings for persons with disabilities; and
2-51 (2) identifying appropriate components of the pilot
2-52 program established under Section 22.037, Human Resources Code, for
2-53 coordination and integration among the Texas Department of Human
2-54 Services, the Texas Department of Mental Health and Mental
2-55 Retardation, and the Department of Protective and Regulatory
2-56 Services.
2-57 (h) In addition to making recommendations under Subsection
2-58 (g), the task force shall advise the commission and appropriate
2-59 health and human services agencies with respect to implementing the
2-60 comprehensive, effectively working plan required by Section
2-61 531.0244(a), giving primary consideration to:
2-62 (1) methods to identify and assess each person who
2-63 resides in an institution but chooses to live in the community and
2-64 for whom a transfer from an institution to the community is
2-65 appropriate, as determined by the person's treating professionals;
2-66 (2) determining the availability of community care and
2-67 support options for persons described by Subdivision (1);
2-68 (3) identifying, addressing, and monitoring barriers
2-69 to implementation of the plan to improve that implementation; and
3-1 (4) identifying funding options for the plan.
3-2 (i) Not later than September 1 of each year, the task force
3-3 shall submit a report to the commissioner on its findings and
3-4 recommendations required by Subsection (g).
3-5 (j) The task force is not subject to Chapter 2110.
3-6 Sec. 531.02442. COMMUNITY LIVING OPTIONS INFORMATION PROCESS
3-7 FOR CERTAIN PERSONS WITH MENTAL RETARDATION. (a) In this section:
3-8 (1) "Institution" means:
3-9 (A) a residential care facility operated or
3-10 maintained by the Texas Department of Mental Health and Mental
3-11 Retardation to provide 24-hour services, including residential
3-12 services, to persons with mental retardation; or
3-13 (B) an ICF-MR, as defined by Section 531.002,
3-14 Health and Safety Code.
3-15 (2) "Legally authorized representative" has the
3-16 meaning assigned by Section 241.151, Health and Safety Code.
3-17 (3) "Local mental retardation authority" has the
3-18 meaning assigned by Section 531.002, Health and Safety Code.
3-19 (b) In addition to providing information regarding care and
3-20 support options as required by Section 531.042, the Texas
3-21 Department of Mental Health and Mental Retardation shall implement
3-22 a community living options information process in each institution
3-23 to inform persons with mental retardation who reside in the
3-24 institution and their legally authorized representatives of
3-25 alternative community living options.
3-26 (c) The department shall provide the information required by
3-27 Subsection (b) through the community living options information
3-28 process at least annually. The department shall also provide the
3-29 information at any other time on request by a person with mental
3-30 retardation who resides in an institution or the person's legally
3-31 authorized representative.
3-32 (d) If a person with mental retardation residing in an
3-33 institution or the person's legally authorized representative
3-34 indicates a desire to pursue an alternative community living option
3-35 after receiving the information provided under this section, the
3-36 department shall refer the person or the person's legally
3-37 authorized representative to the local mental retardation
3-38 authority. The local mental retardation authority shall place the
3-39 person in an alternative community living option, subject to the
3-40 availability of funds, or on a waiting list for those options if
3-41 the options are not available to the person for any reason on or
3-42 before the 30th day after the date the person or the person's
3-43 legally authorized representative is referred to the local mental
3-44 retardation authority.
3-45 (e) The department shall document in the records of each
3-46 person with mental retardation who resides in an institution the
3-47 information provided to the person or the person's legally
3-48 authorized representative through the community living options
3-49 information process and the results of that process.
3-50 SECTION 2. Section 531.042, Government Code, is amended to
3-51 read as follows:
3-52 Sec. 531.042. [COMMUNITY-BASED SERVICES] INFORMATION AND
3-53 ASSISTANCE REGARDING CARE AND SUPPORT OPTIONS; REPORTS. (a) The
3-54 commissioner by rule shall require each health and human services
3-55 agency to provide to each patient or client of the agency and to at
3-56 least one family member of the patient or client, if possible,
3-57 information regarding all care and support options available to the
3-58 patient or client, including community-based services appropriate
3-59 to the needs of the patient or client, before the agency allows the
3-60 patient or client to be placed in a care setting, including a
3-61 nursing home, intermediate care facility for the mentally retarded,
3-62 or institution for the mentally retarded licensed or operated by
3-63 the Department of Protective and Regulatory Services, to receive
3-64 care or services provided by the agency or by a person under an
3-65 agreement with the agency.
3-66 (b) The rules must require each health and human services
3-67 agency to provide information about all [community-based] long-term
3-68 care options and long-term support options available to the patient
3-69 or client, including community-based options and options available
4-1 through another agency or a private provider. The information must
4-2 be provided in a manner designed to maximize the patient's or
4-3 client's understanding of all available options. If the patient or
4-4 client has a legally authorized representative, as defined by
4-5 Section 241.151, Health and Safety Code [guardian], the information
4-6 must also be provided to that representative [the guardian]. If
4-7 the patient or client is in the conservatorship of a health and
4-8 human services agency, the information must be provided to the
4-9 patient's or client's agency caseworker and foster parents, if
4-10 applicable.
4-11 (c) A health and human services agency that provides a
4-12 patient, client, or other person as required by this section
4-13 [guardian] with information as provided by commission rules shall
4-14 obtain a statement signed by the patient or client, and each other
4-15 person as required by this section[, if the patient or client has a
4-16 guardian, by the patient's or client's guardian], that the patient
4-17 or client has been informed about all care and support options
4-18 available to the patient or client, including community-based care
4-19 and support options, as required by commission rules. The agency
4-20 shall retain a copy of each signed statement in the patient's or
4-21 client's case records.
4-22 (d) A health and human services agency that provides a
4-23 patient, client, or other person as required by this section with
4-24 information regarding care and support options available to the
4-25 patient or client shall assist the patient, client, or other person
4-26 in taking advantage of an option selected by the patient, client,
4-27 or other person, subject to the availability of funds. If the
4-28 selected option is not immediately available for any reason, the
4-29 agency shall provide assistance in placing the patient or client on
4-30 a waiting list for that option.
4-31 (e) Each health and human services agency annually and as
4-32 provided by commission rule shall report to the legislature
4-33 [commission] the number of community-based service placements and
4-34 residential-care placements the agency makes.
4-35 SECTION 3. Subchapter B, Chapter 531, Government Code, is
4-36 amended by adding Section 531.055 to read as follows:
4-37 Sec. 531.055. VOUCHER PROGRAM FOR TRANSITIONAL LIVING
4-38 ASSISTANCE FOR PERSONS WITH DISABILITIES. (a) In this section:
4-39 (1) "Institutional housing" means:
4-40 (A) an ICF-MR, as defined by Section 531.002,
4-41 Health and Safety Code;
4-42 (B) a nursing facility;
4-43 (C) a state hospital, state school, or state
4-44 center maintained and managed by the Texas Department of Mental
4-45 Health and Mental Retardation; or
4-46 (D) an institution for the mentally retarded
4-47 licensed or operated by the Department of Protective and Regulatory
4-48 Services.
4-49 (2) "Integrated housing" means housing in which a
4-50 person with a disability resides or may reside that is found in the
4-51 community but that is not exclusively occupied by persons with
4-52 disabilities and their care providers.
4-53 (b) Subject to the availability of funds, the commission
4-54 shall coordinate with the Texas Department of Human Services, the
4-55 Texas Department of Housing and Community Affairs, and the Texas
4-56 Department of Mental Health and Mental Retardation to develop a
4-57 housing assistance program to assist persons with disabilities in
4-58 moving from institutional housing to integrated housing. In
4-59 developing the program, the agencies shall address:
4-60 (1) eligibility requirements for assistance;
4-61 (2) the period during which a person with a disability
4-62 may receive assistance;
4-63 (3) the types of housing expenses to be covered under
4-64 the program; and
4-65 (4) the locations at which the program will be
4-66 operated.
4-67 (c) Subject to the availability of funds, the commission
4-68 shall require the Texas Department of Human Services to implement
4-69 and administer the housing assistance program under this section.
5-1 The department shall coordinate with the Texas Department of
5-2 Housing and Community Affairs in implementing and administering the
5-3 program, determining the availability of funding from the United
5-4 States Department of Housing and Urban Development, and obtaining
5-5 those funds.
5-6 (d) The Texas Department of Human Services and the Texas
5-7 Department of Housing and Community Affairs shall provide
5-8 information to the commission as necessary to facilitate the
5-9 development and implementation of the housing assistance program.
5-10 SECTION 4. Chapter 22, Human Resources Code, is amended by
5-11 adding Sections 22.037 and 22.038 to read as follows:
5-12 Sec. 22.037. PILOT PROGRAM FOR COMMUNITY-BASED ALTERNATIVES
5-13 FOR PERSONS WITH DISABILITIES. (a) In this section:
5-14 (1) "Institution" means:
5-15 (A) an ICF-MR, as defined by Section 531.002,
5-16 Health and Safety Code;
5-17 (B) a nursing facility;
5-18 (C) a state hospital, state school, or state
5-19 center maintained and managed by the Texas Department of Mental
5-20 Health and Mental Retardation; or
5-21 (D) an institution for the mentally retarded
5-22 licensed or operated by the Department of Protective and Regulatory
5-23 Services.
5-24 (2) "Legally authorized representative" has the
5-25 meaning assigned by Section 241.151, Health and Safety Code.
5-26 (b) The department, in cooperation with the Texas Department
5-27 of Mental Health and Mental Retardation and the Department of
5-28 Protective and Regulatory Services in accordance with the
5-29 memorandum of understanding adopted under Section 22.038, shall
5-30 develop and implement in at least three sites a pilot program to
5-31 provide a system of services and support that fosters independence
5-32 and productivity and provides meaningful opportunities for persons
5-33 with disabilities to live in the community. The department shall
5-34 determine the pilot sites, with one site in a rural area, one site
5-35 in an urban area, and one site in a mixed urban and rural area. In
5-36 determining the sites, the department shall consider the length of
5-37 waiting lists for community-based services and support in each area
5-38 and give preference to areas with the longest waiting lists.
5-39 (c) The pilot program, subject to the availability of funds,
5-40 shall include the following components:
5-41 (1) a comprehensive system of improved policies and
5-42 procedures to avoid inappropriately placing a person with a
5-43 disability in an institution, including policies and procedures
5-44 that require:
5-45 (A) a preadmission screening for the person that
5-46 includes the participation of hospital discharge staff and the
5-47 person's physician; and
5-48 (B) an analysis of the costs, benefits, and
5-49 effectiveness of placing the person in a community-based
5-50 alternative care setting;
5-51 (2) a program under which physicians who treat persons
5-52 with disabilities and hospital discharge staff are:
5-53 (A) educated about the availability of
5-54 community-based alternatives to institutionalization to reduce the
5-55 number of persons inappropriately placed in an institution;
5-56 (B) required to inform a person with a
5-57 disability and any other person required to be provided information
5-58 under Section 531.042, Government Code, of all care and support
5-59 options available to the person with the disability, including
5-60 community-based care and support options, before that person makes
5-61 a decision regarding a long-term care placement; and
5-62 (C) required to contact and offer the assistance
5-63 of a permanency planning specialist to a person with a disability
5-64 before that person makes a decision regarding a long-term care
5-65 placement;
5-66 (3) a program, including a program implemented through
5-67 grants to community-based organizations, to provide a transition
5-68 case manager to:
5-69 (A) assist a person with a disability in making
6-1 a transition from an institution to a community-based alternative
6-2 care setting after that person or the person's legally authorized
6-3 representative decides the person should make that transition; and
6-4 (B) coordinate with the local mental health or
6-5 mental retardation authority, as defined by Section 531.002, Health
6-6 and Safety Code, in:
6-7 (i) providing services to the person
6-8 related to the assistance described by Paragraph (A), if
6-9 applicable; and
6-10 (ii) conducting outreach initiatives under
6-11 Subdivision (4);
6-12 (4) a program to provide grants to community-based
6-13 organizations to conduct outreach initiatives to identify persons
6-14 with disabilities who may inappropriately reside in an institution;
6-15 and
6-16 (5) a program under which presumptive eligibility is
6-17 authorized for community-based care and support programs for a
6-18 person with a disability.
6-19 (d) Outreach activities required by Subsection (c)(4) shall
6-20 be conducted in addition to information provided through the
6-21 community living options information process under Section
6-22 531.02442, Government Code, if applicable.
6-23 (e) The department by rule shall establish qualifications
6-24 for a person not affiliated with the department, the Texas
6-25 Department of Mental Health and Mental Retardation, the Department
6-26 of Protective and Regulatory Services, or a state school who
6-27 implements a component of the pilot program by providing outreach
6-28 services to a resident of a state school. The department shall
6-29 require that the person meet those qualifications.
6-30 (f) The Texas Department of Mental Health and Mental
6-31 Retardation shall ensure that:
6-32 (1) the legally authorized representative of a
6-33 resident of a state school is present during each contact between
6-34 the resident and a person described by Subsection (e) who provides
6-35 outreach services if the representative requests to be present; and
6-36 (2) a person described by Subsection (e) who provides
6-37 outreach services does not have contact with a resident of a state
6-38 school if the resident's legally authorized representative opposes
6-39 that contact.
6-40 (g) Notwithstanding any other provision of this section, the
6-41 Texas Department of Mental Health and Mental Retardation may not
6-42 implement any component of the pilot program with respect to a
6-43 resident of a state school unless the resident or the resident's
6-44 legally authorized representative requests that the resident
6-45 participate in the pilot program. The department shall ensure that
6-46 the resident and the resident's legally authorized representative
6-47 are aware of the availability of services under the pilot program.
6-48 (h) The department shall implement each component of the
6-49 pilot program described by Subsection (c) for which the legislature
6-50 appropriates sufficient money. The department is not required to
6-51 implement a component if the legislature does not appropriate
6-52 sufficient money for that component.
6-53 (i) Not later than January 15, 2005, the department shall
6-54 submit a report concerning the effectiveness of the pilot program
6-55 to the presiding officers of both houses of the legislature and to
6-56 the governor. The report must include:
6-57 (1) an evaluation of the strengths and weaknesses of
6-58 each implemented component of the pilot program;
6-59 (2) a recommendation regarding the feasibility of
6-60 expanding the pilot program statewide; and
6-61 (3) a recommendation regarding adopting improved
6-62 policies and procedures with statewide applicability, as determined
6-63 from the information obtained in operating the pilot program, to
6-64 ensure appropriate care settings for persons with disabilities.
6-65 Sec. 22.038. MEMORANDUM OF UNDERSTANDING ON PILOT PROGRAM
6-66 FOR COMMUNITY-BASED ALTERNATIVES FOR PERSONS WITH DISABILITIES.
6-67 (a) The department, the Texas Department of Mental Health and
6-68 Mental Retardation, and the Department of Protective and Regulatory
6-69 Services shall adopt a memorandum of understanding to implement the
7-1 pilot program under Section 22.037.
7-2 (b) The memorandum of understanding must:
7-3 (1) define the responsibilities of each agency in
7-4 implementing the components of the pilot program; and
7-5 (2) provide for interagency coordination and
7-6 integration with respect to appropriate components of the pilot
7-7 program, including any components:
7-8 (A) that serve persons for whom each of the
7-9 agencies otherwise provides services;
7-10 (B) for which coordination and integration among
7-11 the agencies will result in the more efficient accomplishment of
7-12 the goals of the comprehensive, effectively working plan
7-13 implemented under Section 531.0244, Government Code; or
7-14 (C) that are recommended by the interagency task
7-15 force under Section 531.02441, Government Code, for coordination
7-16 and integration.
7-17 (c) Not later than September 1 of each year, the department,
7-18 the Texas Department of Mental Health and Mental Retardation, and
7-19 the Department of Protective and Regulatory Services shall review
7-20 and update the memorandum.
7-21 (d) Each agency by rule shall adopt the memorandum of
7-22 understanding and all revisions to the memorandum.
7-23 SECTION 5. Not later than December 1, 2001, the commissioner
7-24 of health and human services shall:
7-25 (1) establish the interagency task force under Section
7-26 531.02441, Government Code, as added by this Act; and
7-27 (2) adopt rules under Section 531.042, Government
7-28 Code, as amended by this Act.
7-29 SECTION 6. Not later than March 1, 2002, the Texas
7-30 Department of Mental Health and Mental Retardation shall implement
7-31 the community living options information process required by
7-32 Section 531.02442, Government Code, as added by this Act.
7-33 SECTION 7. Notwithstanding Subsection (a), Section 531.042,
7-34 Government Code, as amended by this Act, not later than March 1,
7-35 2002, each health and human services agency shall provide to each
7-36 patient or client of the agency who is in a care setting on the
7-37 effective date of this Act and to each other person as required by
7-38 Section 531.042, Government Code, as amended by this Act, the
7-39 information required by that section and shall obtain the statement
7-40 required by that section.
7-41 SECTION 8. Not later than December 1, 2002, the Texas
7-42 Department of Human Services shall, subject to the availability of
7-43 funds, implement the pilot program under Section 22.037, Human
7-44 Resources Code, as added by this Act.
7-45 SECTION 9. Not later than September 1, 2002, the Texas
7-46 Department of Human Services, the Texas Department of Mental Health
7-47 and Mental Retardation, and the Department of Protective and
7-48 Regulatory Services shall adopt the memorandum of understanding
7-49 under Section 22.038, Human Resources Code, as added by this Act.
7-50 SECTION 10. This Act takes effect September 1, 2001.
7-51 * * * * *