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.