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                                  * * * * *