By: Zaffirini S.B. No. 2407

A BILL TO BE ENTITLED

AN ACT

relating to the provision of services to individuals with mental retardation.

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

SECTION 1. Section 55.33(a), Family Code, is amended to read as follows:

(a) If the juvenile court or jury determines under Section 55.32 that a child is unfit to proceed with the juvenile court proceedings for delinquent conduct, the court shall:

(1) if the unfitness to proceed is a result of mental illness or mental retardation:

(A) provided that the child meets the commitment criteria under Subtitle C or D, Title 7, Health and Safety Code, order the child placed with the Department of State Health Services or Department of Aging and Disability Services [Texas Department of Mental Health and Mental Retardation] for a period of not more than 90 days, which order may not specify a shorter period, for placement in a facility designated by the appropriate department; or

(B) on application by the child's parent, guardian, or guardian ad litem, order the child placed in a private psychiatric inpatient facility for a period of not more than 90 days, which order may not specify a shorter period, but only if the placement is agreed to in writing by the administrator of the facility; [or]

(2) if the unfitness to proceed is a result of mental illness and the court determines that the child may be adequately treated in an alternative setting, order the child to receive treatment for mental illness on an outpatient basis for a period of not more than 90 days, which order may not specify a shorter period; or

(3) if the unfitness to proceed is a result of mental retardation and the court determines that the child may benefit from treatment or habilitation services in an alternative setting, order the child to receive the treatment or services on an outpatient basis for a period of not more than 90 days.

SECTION 2. Section 55.52(a), Family Code, is amended to read as follows:

(a) If the court or jury finds that a child is not responsible for the child's conduct under Section 55.51, the court shall:

(1) if the lack of responsibility is a result of mental illness or mental retardation:

(A) provided that the child meets the commitment criteria under Subtitle C or D, Title 7, Health and Safety Code, order the child placed with the Department of State Health Services or Department of Aging and Disability Services [Texas Department of Mental Health and Mental Retardation] for a period of not more than 90 days, which order may not specify a shorter period, for placement in a facility designated by the appropriate department; or

(B) on application by the child's parent, guardian, or guardian ad litem, order the child placed in a private psychiatric inpatient facility for a period of not more than 90 days, which order may not specify a shorter period, but only if the placement is agreed to in writing by the administrator of the facility; [or]

(2) if the child's lack of responsibility is a result of mental illness and the court determines that the child may be adequately treated in an alternative setting, order the child to receive treatment on an outpatient basis for a period of not more than 90 days, which order may not specify a shorter period; or

(3) if the child's lack of responsibility is a result of mental retardation and the court determines that the child may benefit from treatment or habilitation services in an alternative setting, order the child to receive the treatment or services on an outpatient basis for a period of not more than 90 days.

SECTION 3. Article 46B.010, Code of Criminal Procedure, is amended to read as follows:

Art. 46B.010. MANDATORY DISMISSAL OF MISDEMEANOR CHARGES. If a court orders the commitment of or participation in an outpatient treatment program by a defendant who is charged with a misdemeanor punishable by confinement and the defendant is not tried before the date of expiration of the maximum period of restoration under this chapter as described by Article 46B.0095, the court [on the motion of the attorney representing the state] shall dismiss the charge on its own motion or on the motion of any interested party.

SECTION 4. Section 531.02442(a), 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 5. Section 531.02442, Government Code, is amended by amending Subsection (b) and adding Subsection (f) 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. A person with mental retardation residing in an institution or the person's legally authorized representative must participate in the community living options information process.

(f) Each year the department shall:

(1) update 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 6. Section 531.02443, Government Code, is amended by amending Subsection (d) and adding Subsections (g) and (h) 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;

(4) require the local mental retardation authority to coordinate tours and visits to community living options for an adult resident or an adult resident's legally authorized representative; and

(5) ensure that a local mental retardation authority employee working with an adult resident, the adult resident's family members, the adult resident's legally authorized representative, or any person designated by the adult resident or the adult resident's legally authorized representative is an active voting member of the adult resident's interdisciplinary team.

(g) A local mental retardation authority that performs duties required by the community living options information process under Section 531.02442 or this section shall annually submit a report to the Department of Aging and Disability Services 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) for an individual who is not transitioned to an alternative community living option from a state school after indicating a desire to pursue that option, the reasons why the option was not approved or the transition did not occur;

(3) 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;

(4) 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;

(5) the responses to satisfaction survey questions; and

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

(h) The department shall annually submit a report to the legislature regarding the community living options information process, including aggregate information regarding outcomes based on the reports submitted to the department by local mental retardation authorities and as determined by the department during surveys under Chapter 252, Health and Safety Code. The report must also include:

(1) information provided by interdisciplinary teams during commitment proceedings under Subtitle D, Title 7, Health and Safety Code, regarding the community-based supports and services that are needed to support individuals successfully in the community;

(2) a plan for developing the missing community-based supports and services that are identified by the interdisciplinary teams to ensure that individuals committed to a state school may be placed in the community, including a timeline that clearly states objectives and deliverables for the development of those supports and services; and

(3) any legislation that is needed to implement the department's plan under Subdivision (2).

SECTION 7. 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 from commitment to a state school.

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

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

(2) direct adults and children with mental retardation towards the least restrictive living environment appropriate for the person.

(c) The department shall develop the diversion protocols with the advice and assistance of the Promoting Independence Advisory Committee 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 shall contract with a nonprofit entity for the provision of temporary, emergency living arrangements for children at immediate 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 8. Section 252.002(2), Health and Safety Code, is amended to read as follows:

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

SECTION 9. Section 252.040, Health and Safety Code, is amended by adding Subsection (j) to read as follows:

(j) The department shall determine during a survey whether a facility has properly implemented the community living options information process required by Section 531.02442, Government Code.

SECTION 10. Section 533.0355(b), Health and Safety Code, is amended to read as follows:

(b) In adopting rules under this section, the executive commissioner must include rules regarding the following local mental retardation authority responsibilities:

(1) access;

(2) intake;

(3) eligibility functions;

(4) enrollment, initial person-centered assessment, and service authorization;

(5) case management services for individuals receiving services under a Home and Community-based Services (HCS) waiver program;

(6) utilization management;

(7) [(6)] safety net functions, including crisis management services and assistance in accessing facility-based care;

(8) [(7)] service coordination functions;

(9) [(8)] provision and oversight of state general revenue services;

(10) [(9)] local planning functions, including stakeholder involvement, technical assistance and training, and provider complaint and resolution processes; and

(11) [(10)] processes to assure accountability in performance, compliance, and monitoring.

SECTION 11. Sections 593.013(a), (b), (c), (e), and (f), 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; and

(7) determine and recommend the community-based supports and services needed to support the individual successfully in the individual's home.

(c) The interdisciplinary team shall provide an opportunity to participate in team meetings to [give] the person, the person's attorney, the person's legally authorized representative, the person's parent if the person is a minor, [and] the person's guardian, and any person designated by the person who is the subject of the meetings or designated by the person's legally authorized representative [an opportunity to participate in team meetings].

(e) The interdisciplinary team shall prepare a written report [of its findings and recommendations that is] signed by each team member and containing the team's findings and recommendations. The report must:

(1) describe the proposed form of supports and services for the person;

(2) identify the least restrictive alternative for the person regardless of whether the alternative is available;

(3) include a statement as to whether a proposed form of supports and services is available;

(4) if community supports and services are recommended, include a statement as to whether the proposed mental retardation supports and services are available in the community in which the person will reside; and

(5) describe what steps the local mental retardation authority and the department will take to develop the proposed mental retardation supports and services that are not available, including a timeline that clearly states objectives and deliverables for the development of those supports and services.

(f) The interdisciplinary team [and] shall promptly send a copy of the report and recommendations to the person, the person's parent if the person is a minor, [and] the person's guardian, the person's attorney, and the person's legally authorized representative and, if[.

[(f) If] the court [has] ordered the team's [interdisciplinary team] report and recommendations under Section 593.041, [the team shall promptly send a copy of the report and recommendations] to the court as provided by that section [, the person with mental retardation or the person's legal representative, the person's parent if the person is a minor, and the person's guardian].

SECTION 12. Section 593.041, Health and Safety Code, is amended by amending Subsection (d) and adding Subsection (d-1) to read as follows:

(d) A person may not be committed to the department for placement in a residential care facility under this subchapter unless [a report by] an interdisciplinary team from a local mental retardation authority serving the county in which the application was filed has completed a report recommending the placement [has been completed] during the six months preceding the date of the court hearing on the application. If the report and recommendations have not been completed or revised during that six-month period and filed at the time the application is made, the court shall order the report and recommendations on receiving the application.

(d-1) The report and recommendations must be filed before the date of the court hearing on the application unless the court determines that an emergency admission, emergency services, or respite care is necessary.

SECTION 13. Section 593.052, Health and Safety Code, is amended by amending Subsections (a) and (b) and adding Subsections (a-1), (b-1), and (d) to read as follows:

(a) A proposed resident may not be committed to a residential care facility unless:

(1) the proposed resident is a person with mental retardation;

(2) clear and convincing evidence is presented showing that because of retardation, the proposed resident:

(A) represents a substantial risk of physical impairment or injury to the proposed resident [himself] or others; or

(B) is unable to provide for and is not providing for the proposed resident's most basic personal physical needs;

(3) the proposed resident cannot be adequately and appropriately habilitated in an available, less restrictive setting; and

(4) the residential care facility provides habilitative services, care, training, and treatment appropriate to the proposed resident's needs.

(a-1) In finding that a proposed resident meets the commitment criteria prescribed by Subsection (a), the court must specify which criterion listed in Subsection (a)(2)(A) or (B) forms the basis for the decision.

(b) If it is determined that the requirements of Subsection (a) have been met and that long-term placement in a residential care facility is appropriate, the court shall commit the proposed resident for care, treatment, and training to a community center or the department when space is available in a residential care facility. In determining whether long-term placement in a residential care facility is appropriate, the court shall consider the least restrictive alternative identified by the interdisciplinary team under Section 593.013.

(b-1) An order for long-term placement in a residential care facility must state that the commitment for care, treatment, and training is authorized for a maximum of a 12-month period. Notwithstanding Chapter 594, the facility administrator shall discharge the resident at the end of the 12-month period unless a new order committing the person to a residential care facility has been issued under this chapter. Not later than the 30th day before the date a resident is scheduled to be discharged under this section, the facility administrator shall notify a representative for the local mental retardation authority that serves the area in which the facility is located or in which the resident will reside after discharge of the resident's scheduled discharge. The notice must include the date the resident is scheduled to be discharged and shall include a request that the authority prepare a transition plan for placing the resident in the community served by the authority. A local mental retardation authority that receives a request under this section shall prepare a transition plan for the resident and assist the facility in implementing the plan.

(d) To be clear and convincing under Subsection (a)(2)(A), the evidence must include evidence of a recent overt act that tends to confirm the likelihood of substantial risk of physical impairment or injury to the proposed resident or others.

SECTION 14. Subchapter B, Chapter 161, Human Resources Code, is amended by adding Section 161.033 to read as follows:

Sec. 161.033. STATE SCHOOL REQUIREMENTS FOR LONG-RANGE PLAN. In developing the long-range plan required by Section 533.032, Health and Safety Code, the department shall:

(1) include strategies for downsizing state schools and transitioning more state school residents to community-based care;

(2) describe initiatives for achieving cost efficiencies relating to the strategies required by Subdivision (1); and

(3) estimate the fiscal impact of each strategy and initiative, including the impact on department funding and the number of full-time equivalent department employees and the cost implications to other health and human services agencies.

SECTION 15. Subchapter D, Chapter 161, Human Resources Code, is amended by adding Section 161.077 to read as follows:

Sec. 161.077. POSITIVE BEHAVIOR SUPPORT TRAINING AND TECHNICAL ASSISTANCE PROJECT. (a) In this section:

(1) "Challenging behavior" means a behavioral pattern or a particular behavioral trait or a combination of behavioral traits exhibited by a child with mental retardation that impairs, directly or indirectly, the emotional or physical well-being of the child or persons supporting the child.

(2) "Child with intense behavioral support needs" means a child with mental retardation who regularly exhibits challenging behavior.

(3) "In-home behavior mentor" means a person with expertise and experience in implementing a positive behavior support plan under the direction of a positive behavior support specialist.

(4) "Positive behavior support plan" means a strategy for reducing the incidence of challenging behavior in a child with intense behavioral support needs.

(5) "Positive behavior support specialist" means a person with expertise and experience in developing and supervising the implementation of a positive behavior support plan.

(b) The department shall establish a positive behavior support training and technical assistance project to:

(1) develop a positive behavior support plan for children with intense behavioral support needs;

(2) implement the positive behavior support plan;

(3) provide flexible community support to or on behalf of eligible children;

(4) provide at least 30 days of respite per year on behalf of eligible children;

(5) provide crisis support to or on behalf of eligible children; and

(6) coordinate specialized case management services for eligible children.

(c) The executive commissioner shall adopt rules implementing the project. The rules must:

(1) require a positive behavior support specialist to supervise the provision of a positive behavior support plan;

(2) provide that the services of a positive behavior support specialist and an in-home behavior mentor supplement, and may not duplicate, the services provided by:

(A) a person licensed to provide home and community support services or other residential services to persons with mental retardation; or

(B) a birth family, foster family, or companion care family;

(3) ensure that coordinators providing specialized case management services have limited caseloads; and

(4) describe the circumstances in which flexible community support and crisis support are available to strengthen family stability and create a healthy environment for the child with intense behavioral support needs as well as the persons supporting the child.

SECTION 16. (a) The Health and Human Services Commission and the Department of Aging and Disability Services shall jointly conduct a study regarding the feasibility of providing medical assistance for long-term services and supports through the Medicaid managed care program under Chapter 533, Government Code, to persons with mental retardation who are eligible for that assistance.

(b) 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 results of the study to the standing committees of the senate and house of representatives having primary jurisdiction over the Medicaid program. The report must include:

(1) a cost-benefit analysis of providing medical assistance to persons with mental retardation in the manner described by Subsection (a) of this section;

(2) a proposal for the implementation of the provision of that medical assistance if implementation is feasible; and

(3) a description of any legislative action necessary to provide that medical assistance if implementation is feasible.

SECTION 17. (a) Not later than September 1, 2011, the Department of Aging and Disability Services shall file an application for a new commitment order for each person who:

(1) was committed to a residential care facility in a proceeding that began before September 1, 2009;

(2) is currently residing in a residential care facility; and

(3) has resided in a residential care facility for at least one year.

(b) In filing the applications as required by Subsection (a) of this section, the department shall prioritize the applications based on the length of time a person has resided in a residential care facility.

SECTION 18. (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 January 1, 2010, the executive commissioner of the Health and Human Services Commission shall adopt rules relating to the provision of case management services for individuals receiving services under a Home and Community-based Services (HCS) waiver and shall ensure that this function is transferred to local mental retardation authorities as quickly as possible without disrupting the provision of services.

SECTION 19. 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 (HCS) at group homes in which five or six individuals with mental retardation reside and receive those services.

SECTION 20. (a) The change in law made by this Act in amending Chapter 593, Health and Safety Code, applies only to a proceeding relating to a person with mental retardation that begins on or after the effective date of this Act. A proceeding that begins before the effective date of this Act is governed by the law in effect on the date the proceeding began, and that law is continued in effect for that purpose.

(b) The change in law made by this Act in amending Article 46B.010, Code of Criminal Procedure, applies to a defendant against whom proceedings are initiated under Chapter 46B of that code before, on, or after the effective date of this Act.

(c) Section 55.33, Family Code, as amended by this Act, applies to a child whose fitness to proceed is the subject of a hearing under 55.32, Family Code, before, on, or after the effective date of this Act, regardless of when the conduct that is the subject of a petition alleging delinquent conduct occurred.

(d) Section 55.52, Family Code, as amended by this Act, applies to a child who is found not to be responsible for the child's conduct under Section 55.51, Family Code, before, on, or after the effective date of this Act, regardless of when the conduct that is the subject of a petition alleging delinquent conduct occurred.

SECTION 21. This Act takes effect September 1, 2009.