By: Zaffirini, et al. S.B. No. 2407

A BILL TO BE ENTITLED

AN ACT

relating to the provision of services to individuals with mental retardation or other disabilities.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:

SECTION 1. Subsection (a), Section 531.02442, Government Code, is amended by amending Subdivision (1) and adding Subdivision (4) to read as follows:

(1) "Institution" means:

(A) a residential care facility operated or maintained by the department [Texas Department of Mental Health and Mental Retardation] to provide 24-hour services, including residential services, to persons with mental retardation; or

(B) an ICF-MR, as defined by Section 531.002, Health and Safety Code.

(4) "Department" means the Department of Aging and Disability Services.

SECTION 2. Section 531.02442, Government Code, is amended by amending Subsection (b) and adding Subsections (f), (g), and (h) to read as follows:

(b) In addition to providing information regarding care and support options as required by Section 531.042, the department [Texas Department of Mental Health and Mental Retardation] shall implement a community living options information process in each institution to inform persons with mental retardation who reside in the institution and their legally authorized representatives of alternative community living options. If a person with mental retardation residing in an institution and the person's legally authorized representative would like to participate in the community living options information process, the department and the local mental retardation authority must provide information regarding the process.

(f) The department shall contract with local mental retardation authorities to implement the community living options information process for residents of institutions who are at least 22 years of age. The local mental retardation authorities shall provide and implement the process for institutions under Subsection (a)(1)(A) as provided by Section 531.02443.

(g) A contract with a local mental retardation authority to implement the community living options information process for an institution other than an institution under Subsection (a)(1)(A) must:

(1) delegate to the local mental retardation authority the department's duties under this section with regard to the implementation of the process at the institution;

(2) include performance measures designed to assist the department in evaluating the effectiveness of the local mental retardation authority in implementing the community living options information process; and

(3) ensure that the local mental retardation authority provides service coordination and relocation services to a resident who is at least 22 years of age and who chooses, is eligible for, and is recommended by an interdisciplinary team for a community living option to facilitate a timely, appropriate, and successful transition from the institution to the community living program.

(h) Each year the department shall:

(1) review and make necessary updates to materials used during the community living options information process; and

(2) provide training regarding the community living options information process to staff members involved with the process at each institution and each local mental retardation authority.

SECTION 3. Section 531.02443, Government Code, is amended by amending Subsection (d) and adding Subsection (g) to read as follows:

(d) The contract with the local mental retardation authority must:

(1) delegate to the local mental retardation authority the department's duties under Section 531.02442 with regard to the implementation of the community living options information process at a state school;

(2) include performance measures designed to assist the department in evaluating the effectiveness of a local mental retardation authority in implementing the community living options information process; [and]

(3) ensure that the local mental retardation authority provides service coordination and relocation services to an adult resident who chooses, is eligible for, and is recommended by the interdisciplinary team for a community living option to facilitate a timely, appropriate, and successful transition from the state school to the community living option; and

(4) require the local mental retardation authority, in coordination with the department and within existing resources, to coordinate tours and visits to community living options for an adult resident or an adult resident's legally authorized representative, as appropriate based on the resident's behavioral needs.

(g) The department, in coordination with local mental retardation authorities that perform duties required by the community living options information process under Section 531.02442 or this section, shall annually submit a report to the commission and the interagency task force on ensuring appropriate care settings for persons with disabilities regarding the outcomes of the community living options information process as performed by the local mental retardation authority. A report required by this section must include:

(1) the number of individuals in a state school who indicated a desire to pursue an alternative community living option and the status of the individual's transition to the community;

(2) the number of times the local mental retardation authority performed duties under Section 531.02442 or this section for individuals and the number of individuals for whom the authority performed this function;

(3) the number of individuals transitioned to an alternative community living option after the local mental retardation authority performed the community living options information process for the individual;

(4) the responses to satisfaction survey questions; and

(5) any other relevant information as determined by the department.

SECTION 4. Subchapter B, Chapter 531, Government Code, is amended by adding Section 531.02446 to read as follows:

Sec. 531.02446. DIVERSION PROTOCOLS TO PREVENT COMMITMENT TO CERTAIN INSTITUTIONS. (a) The executive commissioner by rule shall develop protocols to divert adults and children with mental retardation at imminent risk of commitment to a state school from commitment to a state school.

(b) The executive commissioner shall ensure that the diversion protocols are designed to:

(1) reduce the commitment to state schools of individuals younger than 22 years of age; and

(2) provide options to adults and children with mental retardation at imminent risk of commitment to a state school to ensure that they have access to the least restrictive living environment appropriate for the person.

(c) The department shall develop the diversion protocols with the advice and assistance of the interagency task force on ensuring appropriate care settings for persons with disabilities and representatives of family members or legally authorized representatives of adult residents of state schools, persons with mental retardation, state schools, and local mental retardation authorities.

(d) As part of the diversion protocols, the executive commissioner may contract with an organization for the provision of temporary, emergency living arrangements for children at imminent risk of commitment to a state school.

(e) An entity awarded a contract under this section must provide temporary, emergency living arrangements at homes, with no more than six children placed in the home.

SECTION 5. Subtitle I, Title 4, Government Code, is amended by adding Chapter 536 to read as follows:

CHAPTER 536. STRATEGIC PLAN REGARDING LONG-TERM SERVICES AND

SUPPORTS FOR INDIVIDUALS WITH DISABILITIES

Sec. 536.001. PURPOSE; INTENT. (a) The purpose of this chapter is to develop a comprehensive plan to reform and rebalance Texas' system of long-term services and supports for individuals with disabilities, including individuals who are eligible for ICF-MR services.

(b) It is the intent of the legislature that the system analysis and planning effort prescribed by this chapter encompass services for individuals with disabilities across different programs and settings.

(c) It is the intent of the legislature that the reformed system:

(1) be based on principles of self-determination;

(2) include person-centered planning and maximize opportunities for consumer direction for all eligible individuals;

(3) provide and expand timely access to services and supports in the individual's setting of choice, whether in the community or in an institution;

(4) base service provision on functional need;

(5) simplify and streamline community-based services to ensure that, to the extent possible, all individuals have access to the same array of services regardless of an individual's disability;

(6) improve the quality of services delivered across programs and settings, with particular attention given to services delivered to individuals in state schools and state centers;

(7) strengthen oversight of community-based services; and

(8) increase the cost-effectiveness and sustainability of long-term care services and supports.

Sec. 536.002. PRINCIPLES OF SELF-DETERMINATION. For purposes of this chapter, "self-determination" includes the following principles:

(1) freedom, the opportunity to choose where and with whom one lives and how one organizes all important aspects of one's life with freely chosen assistance as needed;

(2) authority, the ability to control some targeted amount of public dollars;

(3) support, the ability to organize support in ways that are unique to the individual;

(4) responsibility, the obligation to use public dollars wisely and to contribute to one's community; and

(5) confirmation, the recognition that individuals with disabilities must be a major part of the redesign of the human services system of long-term care.

Sec. 536.003. CREATION OF STRATEGIC PLAN. The commission shall create a strategic plan for reform of the services and supports available for individuals with disabilities, including individuals eligible for ICF-MR services. The commission shall develop the plan with the input of the strategic plan advisory committee using a clearly defined process that allows ongoing and meaningful statewide public involvement.

Sec. 536.004. STRATEGIC PLAN ADVISORY COMMITTEE. (a) The strategic plan advisory committee is established to provide information and assist the commission in the creation of the strategic plan under this chapter.

(b) The advisory committee is composed of the following members, appointed by the executive commissioner:

(1) one representative of each of the following:

(A) the commission;

(B) the Department of Aging and Disability Services;

(C) the Department of State Health Services; and

(D) local mental retardation authorities;

(2) one representative who is a direct care employee of a state school;

(3) two representatives of community services providers;

(4) two representatives of an advocacy group for persons with disabilities; and

(5) two representatives who are family members of individuals residing in a state school.

(c) The advisory committee shall study and make recommendations to the commission regarding any issues the commission considers relevant in relation to:

(1) the proximity of state schools to other state schools and the geographical distribution of state schools;

(2) the proximity of state schools to community services providers and the geographical distribution of those providers;

(3) the administrative costs of each state school;

(4) the availability of other employment opportunities in the area of each state school for employees displaced by potential consolidation, including additional employees that may be needed by community services providers if a state school is consolidated;

(5) the condition of existing state school structures and existing community services providers;

(6) the ease of client transfer capability;

(7) the capacity of state schools to accommodate individuals transferred from a facility that may be identified for consolidation;

(8) the capacity of local community services providers to accommodate individuals served by each state school;

(9) identification of specialty programs and services available at each state school and whether those programs and services are available at other state schools or from local community services providers;

(10) the history of incidents of abuse, neglect, or exploitation in each state school and in community-based services;

(11) the economic impact of expanding community programs in the area of each state school, particularly in historically underserved areas of the state;

(12) the economic impact of potential consolidation of each state school; and

(13) any other relevant information as determined by the advisory committee.

(d) The advisory committee may solicit public testimony and input while performing the advisory committee's duties under this chapter.

Sec. 536.005. CONTENTS OF STRATEGIC PLAN. The strategic plan required by this chapter must:

(1) assess the need for services and supports based on current interest lists, national trends, best practices, consumer satisfaction surveys, and any other relevant data;

(2) prescribe methods to expand timely access to community-based services by:

(A) eliminating wait times for services of greater than two years;

(B) developing community-based provider capacity;

(C) improving and expanding positive behavioral supports in the community for adults and children; and

(D) applying "Money Follows the Person" methods of financing for individuals residing in state schools, state centers, or public or private ICF-MRs;

(3) analyze current utilization management methods for community-based services and determine necessary modifications to ensure more timely access to services;

(4) examine local access issues for community-based services and identify appropriate solutions;

(5) examine the current functional eligibility criteria, functional assessment tools, and service planning reimbursement methodology for the home and community-based services waiver system and determine appropriate methods to modify those protocols so individuals can access needed services, regardless of the program in which the individual is enrolled;

(6) prescribe methods to redesign the home and community-based services waiver system across all programs by:

(A) simplifying and streamlining the administrative, policy, and regulatory processes to the extent possible;

(B) ensuring that person-centered plans and philosophy match utilization review and utilization management methods and philosophy;

(C) permitting, to the extent allowed by federal law, flexibility in the development of an individualized service plan based on the needs of the individual rather than the individual's disability label or diagnosis;

(D) ensuring that an individualized service plan can be modified when the individual's support needs change; and

(E) implementing other strategies to streamline services for individuals with a disability who are eligible for waiver services;

(7) prescribe methods to improve services delivered to individuals in state schools and state centers;

(8) prescribe methods to reduce reliance on institutional placements of individuals;

(9) prescribe methods to improve the quality of services provided to individuals by:

(A) examining current methods and processes related to the quality of services and identifying which methods or processes:

(i) need further enhancements;

(ii) need to be developed; or

(iii) are effective and should be considered for implementation across all services;

(B) increasing oversight and accountability in community-based settings;

(C) developing an appropriate population of qualified direct services workers in the community who are appropriately compensated; and

(D) identifying quality measures, including timeliness of service delivery, number of individuals served, and types of services being received, and providing a process by which this information is reported to the legislature on an annual basis;

(10) identify barriers to system reform and make recommendations to eliminate or address barriers to system reform, including any necessary statutory amendment; and

(11) consider the department's ability to reduce the number of state school residents, through census management, not closure, and limit the number of residents residing at each state school, without removing a state school resident from a state school against the resident's will or against the will of the resident's legally authorized guardian for the purpose of meeting any potential capacity limits, and without denying admission to a state school on the basis that the admission would cause the state school to exceed any potential capacity limit.

SECTION 6. Subdivision (2), Section 252.002, Health and Safety Code, is amended to read as follows:

(2) "Department" means the [Texas] Department of Aging and Disability [Human] Services.

SECTION 7. Subchapter B, Chapter 533, Health and Safety Code, is amended by adding Section 533.03551 to read as follows:

Sec. 533.03551. CASE MANAGEMENT BY LOCAL MENTAL RETARDATION AUTHORITIES. (a) The executive commissioner shall designate local mental retardation authorities for the purpose of performing case management functions for certain Section 1915(c) waiver programs, including the home and community-based services waiver program and the Texas home living waiver services waiver program.

(b) The executive commissioner shall ensure that a local mental retardation authority performing case management functions for a Section 1915(c) waiver program has an organizational structure that separates local mental retardation authority functions from any service provider functions under the applicable Section 1915(c) waiver programs.

(c) The executive commissioner, with the advice and assistance of a work group composed of representatives appointed by the executive commissioner from private and public service providers under the Section 1915(c) waiver programs, advocates for individuals with mental retardation, families of individuals with mental retardation, consumers, and other interested stakeholders, shall develop rules to implement this section. The rules must:

(1) clearly delineate the roles and responsibilities of the Department of Aging and Disability Services, a local mental retardation authority, and a service provider under this section and include criteria specifying when a service provider is required to receive approval from a local mental retardation authority before changing an individual plan of care;

(2) require a local mental retardation authority, in conducting case management functions for a Section 1915(c) waiver program, to:

(A) perform consumer screening and assessment;

(B) enroll consumers in the home and community-based waiver services or Texas home living waiver services and, as applicable, other Medicaid waiver-related services, in a manner that ensures consumer choice;

(C) develop an initial plan of care for a consumer, approve an annual plan of care for a consumer, conduct quarterly reviews of a plan of care for a consumer, and approve changes to a plan of care for a consumer;

(D) manage consumer transfers between service providers to ensure consumer choice;

(E) facilitate communication of complaints to the appropriate person;

(F) at least quarterly, meet with consumers in person; and

(G) ensure consumer access to a crisis response system;

(3) require a service provider to:

(A) implement and manage the plan of care for a consumer for whom the service provider provides services;

(B) ensure that services provided to a consumer are provided in accordance with the consumer's approved plan of care;

(C) respond to the consumer's or the consumer's family's needs and to crisis situations involving the consumer or the consumer's family; and

(D) communicate the need for changes to a consumer's plan of care and coordinate those changes; and

(4) require the Department of Aging and Disability Services to:

(A) enroll service providers for Section 1915(c) waiver programs, including the home and community-based services waiver program or the Texas home living waiver services waiver program;

(B) manage service provider contracts related to Section 1915(c) waiver programs;

(C) conduct surveys and certification reviews;

(D) perform utilization review, including consumer screening and assessment and final individual plan of care authorizations;

(E) conduct other relevant administrative and regulatory functions;

(F) ensure the case management functions of a local mental retardation authority are conducted consistently across this state and that a local mental retardation authority's interface with service providers is efficient and effective;

(G) establish a protocol for providing consumers with information about service and support options and choice of service providers; and

(H) ensure that consumer needs are met in the most efficient and effective manner possible by requiring use of a person-directed planning process to develop an individually tailored plan of care that includes services and supports chosen by and directed by each consumer to the maximum extent possible with periodic review of a consumer's progress toward desired outcomes.

SECTION 8. Subsections (a) and (b), Section 593.013, Health and Safety Code, are amended to read as follows:

(a) A person may not be admitted or committed to a residential care facility unless an interdisciplinary team from a local mental retardation authority serving the county in which the application was filed recommends that placement.

(b) The [An] interdisciplinary team shall:

(1) interview the person with mental retardation, the person's parent if the person is a minor, and the person's guardian;

(2) review the person's:

(A) social and medical history;

(B) medical assessment, which must [shall] include an audiological, neurological, and vision screening;

(C) psychological and social assessment; and

(D) determination of adaptive behavior level;

(3) determine the person's need for additional assessments, including educational and vocational assessments;

(4) obtain any additional assessment necessary to plan services;

(5) identify the person's habilitation and service preferences and needs; and

(6) recommend services to address the person's needs that consider the person's preferences.

SECTION 9. Subchapter B, Chapter 593, Health and Safety Code, is amended by adding Section 593.0251 to read as follows:

Sec. 593.0251. POLICY REGARDING SERVICES IN STATE SCHOOL. It is the policy of this state that a person residing in a residential care facility operated by the Department of Aging and Disability Services that is a state school has the right to continue receiving services in a facility if:

(1) the person or, if appropriate, the person's legally authorized representative, indicates a preference for the person continuing to receive services in the facility; and

(2) the facility is not required to transfer, furlough to an alternative placement, or discharge the person under Section 594.011.

SECTION 10. (a) In implementing Section 533.03551, Health and Safety Code, as added by this Act, the Department of Aging and Disability Services shall:

(1) conduct a review of the existing processes and documentation requirements of the home and community-based services waiver program and eliminate complexities or requirements that do not add value or quality to the program;

(2) consider information and data from previous and existing projects or programs related to the provision of services through the home and community-based services waiver program or other Section 1915(c) waiver programs designed to achieve efficiencies and improved access to care; and

(3) oversee the development and implementation of the new service delivery design to ensure that appropriate state action is taken to identify and resolve barriers to service delivery through that design.

(b) The Health and Human Services Commission shall evaluate the reimbursement rates of local mental retardation authorities and service providers for the cost of conducting case management and other functions, as applicable, in accordance with Section 533.03551, Health and Safety Code, as added by this Act.

(c) The executive commissioner of the Health and Human Services Commission shall:

(1) evaluate the consumer benefit and cost-effectiveness of providing case management in the manner provided by Section 533.03551, Health and Safety Code, as added by this Act; and

(2) not later than December 1, 2010, submit a report to the lieutenant governor, the speaker of the house of representatives, the Senate Committee on Finance, and the House Appropriations Committee regarding the status of the project during the development and implementation phases of Section 533.03551, Health and Safety Code, as added by this Act.

SECTION 11. (a) The Health and Human Services Commission and the Department of Aging and Disability Services shall jointly design a plan to implement a long-term services and supports capitated or noncapitated pilot program to serve individuals with intellectual or developmental disabilities.

(b) The Department of Aging and Disability Services may contract with a person to conduct a study and make recommendations regarding the design and implementation of the long-term services and supports capitated or noncapitated pilot program and shall include meaningful input regarding the plan from individuals with intellectual or developmental disabilities who receive services from the department, the families of those individuals, service providers, local mental retardation authorities, entities that advocate for those individuals, and other interested parties.

(c) The plan designed under this section must examine managed care models employed by other states for individuals with intellectual or developmental disabilities in determining the most appropriate manner to implement the pilot program.

(d) Not later than December 1, 2010, the Health and Human Services Commission and the Department of Aging and Disability Services shall submit a report regarding the plan to the standing committees of the house of representatives and senate having primary jurisdiction over the Medicaid program. The report must include:

(1) recommendations for the implementation of the pilot program, including:

(A) the area or areas in this state in which the program should be implemented;

(B) options for consolidating waiver services;

(C) the costs and methods of financing;

(D) utilization review;

(E) provider network;

(F) eligibility criteria;

(G) service coordination;

(H) quality management;

(I) waiver development and federal requirements; and

(J) any other relevant issues as determined by the commission or the department; and

(2) a consumer-impact analysis that includes a review of the impact of managed care on individuals receiving services.

SECTION 12. (a) The Health and Human Services Commission and the Department of Aging and Disability Services shall jointly conduct a study, with meaningful stakeholder input, regarding the effectiveness of the requirements for admission and commitment to a residential care facility provided by Chapter 593, Health and Safety Code, as amended by this Act, and department rules.

(b) In conducting the study, the Health and Human Services Commission and the Department of Aging and Disability Services shall consider whether:

(1) existing processes ensure that proposed and existing residents of a residential care facility receive supports and services in the least restrictive alternative for the person, including alternatives that become available or are developed after the person is a resident;

(2) standards of evidence as required by law are appropriate to support commitment to a residential care facility, including making a determination regarding an operational definition of that evidence;

(3) orders for long-term placement in a residential care facility should be reviewed on an ongoing basis; and

(4) a process for renewing commitment orders should be required by statute.

(c) Not later than November 1, 2010, the Health and Human Services Commission and the Department of Aging and Disability Services shall provide a joint written report to the legislature and the Sunset Advisory Commission regarding the study, including any recommendations for legislation to address proposed changes to the requirements for admission or commitment to a residential care facility.

(d) As part of its review of the Department of Aging and Disability Services for the 82nd Legislature, the Sunset Advisory Commission shall consider the report submitted to the commission in accordance with this section.

SECTION 13. (a) Not later than January 1, 2010, the executive commissioner of the Health and Human Services Commission shall develop and implement the diversion protocols required under Section 531.02446, Government Code, as added by this Act.

(b) Not later than September 1, 2009, the executive commissioner of the Health and Human Services Commission shall appoint the work group as required by Section 533.03551, Health and Safety Code, as added by this Act.

(c) Not later than July 1, 2010, the executive commissioner of the Health and Human Services Commission shall ensure that the transfer of case management services is completed as provided by Section 533.03551, Health and Safety Code, as added by this Act.

SECTION 14. Not later than December 1, 2010, the Health and Human Services Commission shall submit the strategic plan required by Chapter 536, Government Code, as added by this Act, to the governor, the presiding officers of each chamber, and the members of the Senate Committee on Health and Human Services and the House Human Services Committee. The commission must also post the strategic plan on the commission's website.

SECTION 15. As soon as practicable after the effective date of this Act, the executive commissioner of the Health and Human Services Commission shall apply for and actively pursue a waiver or an amendment to this state's waiver under Section 1915(c) of the federal Social Security Act (42 U.S.C. Section 1396n(c)) or other authorization from the federal Centers for Medicare and Medicaid Services or any other federal agency authorizing the provision of home and community-based services at licensed group homes that choose to participate and in which five or six individuals with mental retardation reside and receive those services.

SECTION 16. This Act does not make an appropriation. This Act takes effect only if a specific appropriation for implementation of this Act is provided in a general appropriations act of the 81st Legislature.

SECTION 17. This Act takes effect September 1, 2009.