1-1     By:  Zaffirini                                         S.B. No. 368
 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; April 10, 2001, reported adversely, with favorable
 1-5     Committee Substitute by the following vote:  Yeas 7, Nays 0;
 1-6     April 10, 2001, sent to printer.)
 1-7     COMMITTEE SUBSTITUTE FOR S.B. No. 368                   By:  Nelson
 1-8                            A BILL TO BE ENTITLED
 1-9                                   AN ACT
1-10     relating to permanency planning procedures for children in state
1-11     institutions.
1-12           BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-13           SECTION 1.  Subchapter D, Chapter 531, Government Code, as
1-14     added by Chapter 241, Acts of the 75th Legislature, Regular
1-15     Session, 1997, is amended to read as follows:
1-16                     SUBCHAPTER D.  PERMANENCY PLANNING
1-17           Sec. 531.151.  DEFINITIONS.  In this subchapter:
1-18                 (1)  "Child" means a person with a developmental
1-19     disability who is younger than 22 years of age.
1-20                 (2)  "Community resource coordination group" means a
1-21     coordination group established under the memorandum of
1-22     understanding adopted under Section 264.003, Family Code.
1-23                 (3)  "Institution" means:
1-24                       (A)  an ICF-MR, as defined by Section 531.002,
1-25     Health and Safety Code;
1-26                       (B)  a group home operated under the authority of
1-27     the Texas Department of Mental Health and Mental Retardation,
1-28     including a residential service provider under a Medicaid waiver
1-29     program authorized under Section 1915(c) of the federal Social
1-30     Security Act (42 U.S.C. Section 1396n), as amended, that provides
1-31     services at a residence other than the child's home or foster home;
1-32                       (C)  a foster group home or an agency foster
1-33     group home as defined by Section 42.002, Human Resources Code;
1-34                       (D)  a nursing facility;
1-35                       (E)  an institution for the mentally retarded
1-36     [(C)  a residential facility] licensed by the Department of
1-37     Protective and Regulatory Services; or
1-38                       (F) [(D)]  another residential arrangement other
1-39     than a foster home as defined by Section 42.002, Human Resources
1-40     Code, that provides care to four or more children who are unrelated
1-41     to each other.
1-42                 (4) [(2)]  "Permanency planning" means a philosophy and
1-43     planning process that focuses on the outcome of family support by
1-44     facilitating a permanent living arrangement with the primary
1-45     feature of an enduring and nurturing parental relationship.
1-46           Sec. 531.152.  POLICY STATEMENT.  It is the policy of the
1-47     state to strive to ensure that the basic needs for safety,
1-48     security, and stability are met for each child in Texas.  A
1-49     successful family is the most efficient and effective way to meet
1-50     those needs.  The state and local communities must work together to
1-51     provide encouragement and support for well-functioning families and
1-52     ensure that each child receives the benefits of being a part of a
1-53     successful permanent family as soon as possible.
1-54           Sec. 531.153.  DEVELOPMENT OF PERMANENCY PLAN.  (a)  To
1-55     further the policy stated in Section 531.152 and except as provided
1-56     by Subsection (b), the commission and each appropriate health and
1-57     human services agency shall develop procedures to ensure that a
1-58     permanency plan is developed for each child who resides [residing]
1-59     in an institution in this state on a temporary or long-term basis
1-60     or with respect to [for] whom the commission or appropriate health
1-61     and human services agency is notified in advance that institutional
1-62     care is sought.
1-63           (b)  The Department of Protective and Regulatory Services
1-64     shall develop a permanency plan as required by this subchapter for
 2-1     each child who resides in an institution in this state for whom the
 2-2     department has been appointed permanent managing conservator.  The
 2-3     department is not required to develop a permanency plan under this
 2-4     subchapter for a child for whom the department has been appointed
 2-5     temporary managing conservator, but may incorporate the
 2-6     requirements of this subchapter in a permanency plan developed for
 2-7     the child under Section 263.3025, Family Code.
 2-8           (c)  In developing procedures under Subsection (a), the
 2-9     commission and other appropriate health and human services agencies
2-10     shall develop to the extent possible uniform procedures applicable
2-11     to each of the agencies and each child who is the subject of a
2-12     permanency plan that promote efficiency for the agencies and
2-13     stability for each child.
2-14           (d)  In implementing permanency planning procedures under
2-15     Subsection (a) to develop a permanency plan for each child, the
2-16     Texas Department of Human Services, the Texas Department of Mental
2-17     Health and Mental Retardation, and the Department of Protective and
2-18     Regulatory Services may:
2-19                 (1)  delegate each department's duty to develop a
2-20     permanency plan to a local mental retardation authority, as defined
2-21     by Section 531.002, Health and Safety Code, or enter into a
2-22     memorandum of understanding with the local mental retardation
2-23     authority to develop the permanency plan for each child who resides
2-24     in an institution in this state or with respect to whom the
2-25     department is notified in advance that institutional care is
2-26     sought;
2-27                 (2)  contract with a private entity, other than an
2-28     entity that provides mental retardation services to a child who
2-29     resides in an institution in this state or with respect to whom the
2-30     department is notified in advance that institutional care is
2-31     sought, to develop a permanency plan for that child; or
2-32                 (3)  engage in other appropriate activities to minimize
2-33     the potential conflicts of interest that, in developing the plan,
2-34     may exist or arise between:
2-35                       (A)  the child's mental retardation services
2-36     provider, if applicable; and
2-37                       (B)  the best interest of the child.
2-38           (e)  The Texas Department of Human Services, the Texas
2-39     Department of Mental Health and Mental Retardation, and the
2-40     Department of Protective and Regulatory Services may solicit and
2-41     accept gifts, grants, and donations to support the development of
2-42     permanency plans for children residing in institutions by
2-43     individuals or organizations not employed by or affiliated with
2-44     those institutions.
2-45           (f)  A health and human services agency that contracts with a
2-46     private entity under Subsection (d) to develop a permanency plan
2-47     shall ensure that the entity is provided training regarding the
2-48     permanency planning philosophy under Section 531.151 and available
2-49     resources that will assist a child residing in an institution in
2-50     making a successful transition to a community-based residence.
2-51           Sec. 531.154.  NOTIFICATION REQUIRED.  (a)  Not later than
2-52     the third day after the date a child is initially placed in an
2-53     institution, the institution shall notify:
2-54                 (1)  the Texas Department of Human Services, if the
2-55     child is placed in a nursing home;
2-56                 (2)  the local mental retardation authority, as defined
2-57     by Section 531.002, Health and Safety Code, where the institution
2-58     is located, if the child:
2-59                       (A)  is placed in an ICF-MR, as defined by
2-60     Section 531.002, Health and Safety Code; or
2-61                       (B)  is placed by a state or local child
2-62     protective services agency in an institution for the mentally
2-63     retarded licensed by the Department of Protective and Regulatory
2-64     Services;
2-65                 (3)  the community resource coordination group in the
2-66     county of residence of a parent or guardian of the child;
2-67                 (4)  if the child is at least three years of age, the
2-68     school district for the area in which the institution is located;
2-69     and
 3-1                 (5)  if the child is less than three years of age, the
 3-2     local early intervention program for the area in which the
 3-3     institution is located.
 3-4           (b)  The Texas Department of Human Services shall notify the
 3-5     local mental retardation authority, as defined by Section 531.002,
 3-6     Health and Safety Code, of a child's placement in a nursing home if
 3-7     the child is known or suspected to suffer from mental retardation
 3-8     or another disability for which the child may receive services
 3-9     through the Texas Department of Mental Health and Mental
3-10     Retardation.
3-11           Sec. 531.155.  OFFER OF SERVICES.  Each entity receiving
3-12     notice of the initial placement of a child in an institution under
3-13     Section 531.154 may contact the child's parent or guardian to
3-14     ensure that the parent or guardian is aware of:
3-15                 (1)  services and support that could provide
3-16     alternatives to placement of the child in the institution;
3-17                 (2)  available placement options; and
3-18                 (3)  opportunities for permanency planning.
3-19           Sec. 531.156.  DESIGNATION OF ADVOCATE.  (a)  Except as
3-20     provided by Subsection (b), the Texas Department of Human Services
3-21     shall designate a person, including a member of a community-based
3-22     organization, to serve as a volunteer advocate for a child residing
3-23     in an institution to assist in developing a permanency plan for the
3-24     child if:
3-25                 (1)  the child's parent or guardian requests the
3-26     assistance of an advocate; or
3-27                 (2)  the institution in which the child is placed
3-28     cannot locate the child's parent or guardian.
3-29           (b)  The Texas Department of Mental Health and Mental
3-30     Retardation shall designate the person to serve as a volunteer
3-31     advocate for a child in accordance with Subsection (a) if the child
3-32     resides in an institution operated by the department.
3-33           (c)  The person designated by the Texas Department of Human
3-34     Services or the Texas Department of Mental Health and Mental
3-35     Retardation to serve as the child's volunteer advocate under this
3-36     section may be:
3-37                 (1)  a person selected by the child's parent or
3-38     guardian, except that the person may not be employed by or under a
3-39     contract with the institution in which the child resides;
3-40                 (2)  an adult relative of the child; or
3-41                 (3)  a representative of a child advocacy group.
3-42           (d)  The Texas Department of Human Services or the Texas
3-43     Department of Mental Health and Mental Retardation, as appropriate,
3-44     shall provide to each person designated to serve as a child's
3-45     volunteer advocate information regarding permanency planning under
3-46     this subchapter.
3-47           Sec. 531.157.  COMMUNITY-BASED SERVICES.  A state agency that
3-48     receives notice of a child's placement in an institution shall
3-49     ensure that, on or before the third day after the date the agency
3-50     is notified of the child's placement in the institution, the child
3-51     is also placed on a waiting list for waiver program services under
3-52     Section 1915(c) of the federal Social Security Act (42 U.S.C.
3-53     Section 1396n), as amended, appropriate to the child's needs.
3-54           Sec. 531.158.  LOCAL PERMANENCY PLANNING SITES.  The
3-55     commission shall develop an implementation system that consists
3-56     initially of four or more local sites and that is designed to
3-57     coordinate planning for a permanent living arrangement and
3-58     relationship for a child with a family.  In developing the system,
3-59     the commission shall:
3-60                 (1)  include criteria to identify children who need
3-61     permanency plans;
3-62                 (2)  require the establishment of a permanency plan for
3-63     each child who lives outside the child's family or for whom care or
3-64     protection is sought in an institution;
3-65                 (3)  include a process to determine the agency or
3-66     entity responsible for developing and overseeing implementation of
3-67     a child's permanency plan;
3-68                 (4)  identify, blend, and use funds from all available
3-69     sources to provide customized services and programs to implement a
 4-1     child's permanency plan;
 4-2                 (5)  clarify and expand the role of a local community
 4-3     resource coordination group in ensuring accountability for a child
 4-4     who resides in an institution or who is at risk of being placed in
 4-5     an institution;
 4-6                 (6)  require reporting of each placement or potential
 4-7     placement of a child in an institution or other living arrangement
 4-8     outside of the child's home; and
 4-9                 (7)  assign in each local permanency planning site area
4-10     a single gatekeeper for all children in the area for whom placement
4-11     in an institution through a program funded by the state is sought
4-12     with authority to ensure that:
4-13                       (A)  family members of each child are aware of:
4-14                             (i)  intensive services that could prevent
4-15     placement of the child in an institution; and
4-16                             (ii)  available placement options; and
4-17                       (B)  permanency planning is initiated for each
4-18     child.
4-19           Sec. 531.159.  MONITORING OF PERMANENCY PLANNING EFFORTS.
4-20     (a)  The commission and each appropriate health and human services
4-21     agency shall require a person who develops a permanency plan for a
4-22     child residing in an institution to identify and document in the
4-23     child's permanency plan all ongoing permanency planning efforts at
4-24     least semiannually to ensure that, as soon as possible, the child
4-25     will benefit from a permanent living arrangement with an enduring
4-26     and nurturing parental relationship.
4-27           (b)  The chief executive officer of each appropriate health
4-28     and human services agency or the officer's designee must approve
4-29     the placement of a child in an institution.  The initial placement
4-30     of the child in the institution is temporary and may not exceed six
4-31     months unless the appropriate chief executive officer or the
4-32     officer's designee approves an extension of an additional six
4-33     months after conducting a review of documented permanency planning
4-34     efforts to unite the child with a family in a permanent living
4-35     arrangement.  After the initial six-month extension of a child's
4-36     placement in an institution approved under this subsection, the
4-37     chief executive officer or the officer's designee shall conduct a
4-38     review of the child's placement in the institution at least
4-39     semiannually to determine whether a continuation of that placement
4-40     is warranted.  If, based on the review, the chief executive officer
4-41     or the officer's designee determines that an additional extension
4-42     is warranted, the officer or the officer's designee shall recommend
4-43     to the commissioner that the child continue residing in the
4-44     institution.
4-45           (c)  On receipt of a recommendation made under Subsection (b)
4-46     for an extension of a child's placement, the commissioner, the
4-47     commissioner's designee, or another person with whom the commission
4-48     contracts shall conduct a review of the child's placement.  Based
4-49     on the results of the review, the commissioner or the
4-50     commissioner's designee may approve a six-month extension of the
4-51     child's placement if the extension is appropriate.
4-52           (d)  The child may continue residing in the institution after
4-53     the six-month extension approved under Subsection (c) only if the
4-54     chief executive officer of the appropriate health and human
4-55     services agency or the officer's designee makes subsequent
4-56     recommendations as provided by Subsection (b) for each additional
4-57     six-month extension and the commissioner or the commissioner's
4-58     designee approves each extension as provided by Subsection (c).
4-59           (e)  The commissioner or the commissioner's designee shall
4-60     conduct a semiannual review of data received from health and human
4-61     services agencies regarding all children who reside in institutions
4-62     in this state.  The commissioner, the commissioner's designee, or a
4-63     person with whom the commission contracts shall also review the
4-64     recommendations of the chief executive officers of each appropriate
4-65     health and human services agency or the officer's designee if the
4-66     officer or the officer's designee repeatedly recommends that
4-67     children continue residing in an institution.
4-68           (f)  The commission by rule shall develop procedures by which
4-69     to conduct the reviews required by Subsections (c), (d), and (e).
 5-1     In developing the procedures, the commission shall seek input from
 5-2     the work group on children's long-term care and health programs
 5-3     established under Section 22.035, Human Resources Code.
 5-4           Sec. 531.160.  INSPECTIONS.  As part of each inspection,
 5-5     survey, or investigation of an institution, including a nursing
 5-6     home, institution for the mentally retarded licensed by the
 5-7     Department of Protective and Regulatory Services, or ICF-MR, as
 5-8     defined by Section 531.002, Health and Safety Code, in which a
 5-9     child resides, the agency or the agency's designee shall determine
5-10     the extent to which the nursing home, institution, or ICF-MR is
5-11     complying with the permanency planning requirements under this
5-12     subchapter.
5-13           Sec. 531.161.  ACCESS TO RECORDS.  Each institution in which
5-14     a child resides shall allow the commission and appropriate health
5-15     and human services agencies access to the child's records to assist
5-16     the commission or agency in complying with the requirements of this
5-17     subchapter.
5-18           Sec. 531.162 [531.155].  PERMANENCY REPORTING.  (a)  For each
5-19     of the local permanency planning sites, the commission shall
5-20     develop a reporting system under which each appropriate health and
5-21     human services agency responsible for permanency planning under
5-22     this subchapter is required to provide to the commission
5-23     semiannually:
5-24                 (1)  the number of permanency plans developed by the
5-25     agency for children residing in institutions or children at risk of
5-26     being placed in institutions;
5-27                 (2)  progress achieved in implementing permanency
5-28     plans;
5-29                 (3)  the number of children served by the agency
5-30     residing in institutions;
5-31                 (4)  the number of children served by the agency at
5-32     risk of being placed in an institution served by the local
5-33     permanency planning sites;
5-34                 (5)  the number of children served by the agency
5-35     reunited with their families or placed with alternate permanent
5-36     families; and
5-37                 (6)  cost data related to the development and
5-38     implementation of permanency plans.
5-39           (b)  The commissioner shall submit a semiannual report to the
5-40     governor and the committees of each house of the legislature that
5-41     have primary oversight jurisdiction over health and human services
5-42     agencies regarding:
5-43                 (1)  the number of children residing in institutions in
5-44     this state and, of those children, the number for whom a
5-45     recommendation has been made for a transition to a community-based
5-46     residence but who have not yet made that transition;
5-47                 (2)  the circumstances of each child described by
5-48     Subdivision (1), including the type of institution and name of the
5-49     institution in which the child resides, the child's age, the
5-50     residence of the child's parents or guardians, and the length of
5-51     time in which the child has resided in the institution;
5-52                 (3)  the number of permanency plans developed for
5-53     children residing in institutions in this state, the progress
5-54     achieved in implementing those plans, and barriers to implementing
5-55     those plans;
5-56                 (4)  the number of children who previously resided in
5-57     an institution in this state and have made the transition to a
5-58     community-based residence;
5-59                 (5)  the number of children who previously resided in
5-60     an institution in this state and have been reunited with their
5-61     families or placed with alternate families;
5-62                 (6)  the community supports that resulted in the
5-63     successful placement of children described by Subdivision (5) with
5-64     alternate families; and
5-65                 (7)  the community supports that are unavailable but
5-66     necessary to address the needs of children who continue to reside
5-67     in an institution in this state after being recommended to make a
5-68     transition from the institution to an alternate family or
5-69     community-based residence.
 6-1           Sec. 531.163.  EFFECT ON OTHER LAW.  This subchapter does not
 6-2     affect responsibilities imposed by federal or other state law on a
 6-3     physician or other professional.
 6-4           SECTION 2.  (a)  The Health and Human Services Commission
 6-5     shall conduct a study regarding:
 6-6                 (1)  the feasibility of bifurcating the reimbursement
 6-7     provided for permanency planning activities under Chapter 531,
 6-8     Government Code, from the reimbursement provided to an institution
 6-9     in which a child resides for the care of that child; and
6-10                 (2)  alternate mechanisms for providing reimbursement
6-11     for permanency planning activities that will enhance those
6-12     activities.
6-13           (b)  Based on the results of the study conducted under this
6-14     section, the Health and Human Services commission by rule shall
6-15     modify the method of reimbursement provided for permanency planning
6-16     activities to incorporate modifications determined to be effective
6-17     in enhancing those activities.
6-18           SECTION 3.  Subchapter O, Chapter 242, Health and Safety
6-19     Code, as added by Chapter 913, Acts of the 75th Legislature,
6-20     Regular Session, 1997, is repealed.
6-21           SECTION 4.  Notwithstanding Section 6 of this Act, the
6-22     commissioner of health and human services and each appropriate
6-23     health and human services agency, as defined by Section 531.001,
6-24     Government Code, shall begin conducting the reviews required by
6-25     Section 531.159, Government Code, as added by this Act, not later
6-26     than March 1, 2002.
6-27           SECTION 5.  If before implementing any provision of this Act
6-28     a state agency determines that a waiver or authorization from a
6-29     federal agency is necessary for implementation of that provision,
6-30     the agency affected by the provision shall request the waiver or
6-31     authorization and may delay implementing that provision until the
6-32     waiver or authorization is granted.
6-33           SECTION 6.  This Act takes effect September 1, 2001.
6-34                                  * * * * *