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.