HBA-ATS, NLM C.S.H.B. 1400 76(R)BILL ANALYSIS Office of House Bill AnalysisC.S.H.B. 1400 By: Gray Human Services 3/19/1999 Committee Report (Substituted) BACKGROUND AND PURPOSE The Texas Commission for the Blind (commission) was created in 1931 and provides services to persons with visual impairments to ensure active and independent participation in society. The Vocational Rehabilitation program, which accounts for 80 percent of the commission's expenditure, assists clients in seeking and maintaining employment. The Business Enterprises Program is a federally authorized program to provide management opportunities in the food services industry for visually impaired clients. The commission also provides services through the Independent Living Program, and the Children's Program. Counseling and guidance, independent living skills, vocational training, physical restoration and adaptive technology devices are among the services provided by the commission through various programs. The commission also operates the Criss Cole Rehabilitation Center, a 24-hour residential program that provides a comprehensive array of services and training in vocational and independent living skills to visually impaired clients. The commission is subject to the Texas Sunset Act and will be abolished on September 1, 1999, unless continued in existence by the legislature. C.S.H.B. 1400 continues the existence of the commission by establishing a new expiration date of September 1, 2011, and makes statutory modifications recommended by the Sunset Advisory Commission. In addition, this bill increases monitoring and management of service delivery at the counselor and caseworker level and modifies contract performance measures and monitoring to ensure the quality of services for clients. This bill requires the commission to develop a rate-setting method for purchasing medical services that is open to the public, and that ensures the best value for quality and price. This bill creates provisions to provide for the maximization of Medicaid reimbursements. C.S.H.B. 1400 also requires the commission to include in its contracts with service providers provisions relating to clearly defined and measurable program performance standards that directly relate to the service provided, clearly defined penalties for nonperformance of a contract term, and clearly specified accounting, reporting, and auditing requirements applicable to money received under the contract. This bill also includes client training in contracts for adaptive technologies. RULEMAKING AUTHORITY It is the opinion of the Office of House Bill Analysis that rulemaking authority is expressly delegated to the Texas Commission for the Blind in SECTION 4 (Section 91.016, Human Resources Code), SECTION 5 (Section 91.0165, Human Resources Code), and SECTION 6 (Sections 91.022, 91.028, and 91.029, Human Resources Code) of this bill. SECTION BY SECTION ANALYSIS SECTION 1. Amends Sections 91.001, 91.002, and 91.011, Human Resources Code, as follows: Sec. 91.001. SUNSET PROVISION. Changes the expiration date of this chapter from September 1, 1999, to September 1, 2011. Sec. 91.002. DEFINITIONS. Adds a definition of "child with visual impairments" to mean a child who is blind or visually impaired or who has a visual condition that requires treatment, psychological assistance counseling, or other assistance that the Texas Commission for the Blind (commission) can provide. Deletes the existing definition of "visually handicapped child," who is a child with a visual handicap or with a visual condition requiring cosmetic treatment, psychological assistance, counseling, or other assistance that the Texas Commission for the Blind (commission) can render. Adds a definition of "visually impaired" to mean a visual acuity of not more than 20/70 in the better eye with correcting lenses, or visual acuity greater than 20/70 but with a limitation in the field of vision such that the widest diameter of the visual field subtends an angle no greater than 30 degrees. Makes a conforming change. Sec. 91.011. TEXAS COMMISSION FOR THE BLIND. (a) Updates references to the Texas Board of Human Services (board) to refer to the commission. Increases the number of members of the commission from two to five that must be blind or visually impaired residents of the state, rather than blind citizens of the state. Includes the provision that one member of the commission must be a family member, relative, or guardian of a blind or visually impaired resident of the state. Provides that three members, rather than the remaining members, must be members of the general public. Makes a nonsubstantive change. (b) Prohibits a person from being a member of the commission and a commission employee in a "bona fide executive, administrative, or professional capacity," as that phrase is used for purposes of establishing an exemption to the overtime provisions of the federal Fair Labor Standards Act of 1938 (29 U.S.C. Section 201 et seq.) and its subsequent amendments, if the person or the person's spouse is an officer, employee, or paid consultant, or the person's spouse is a manager of a Texas trade association in the field of service provision to persons who are blind or visually impaired or in a related field. Redefines "Texas trade association" and deletes existing definition. (c) Provides that a person is prohibited from being a member of the commission or acting as the general counsel to the commission, if a person is required to register as a lobbyist under Chapter 305 (Registration of Lobbyist), Government Code, because of the person's activities for compensation on behalf of a profession related to the operation of the commission. Makes nonsubstantive changes. (d)-(h) Redesignated from existing Subsections (c)-(g). SECTION 2. Amends Section 91.012(a), Human Resources Code, to strike "annually" from the provision requiring the commission to appoint the executive director with the consent of the governor. SECTION 3. Amends Section 91.015(c), Human Resources Code, to update references to the agency head to refer to the executive director, to the chairman to refer to the presiding officer, and to the chairman of the commission to refer to the presiding officer. Requires the executive director to notify the presiding officer of the commission of a potential ground for removal if the executive director has such knowledge. Requires the presiding officer to notify the governor and the attorney general that a potential ground for removal exists. Requires the executive director, if the potential ground for removal involves the presiding officer, to notify the next highest ranking officer of the commission, who is then required to notify the governor and the attorney general that a potential ground for removal exists. Makes a nonsubstantive change. SECTION 4. Amends Sections 91.016, Human Resources Code, by amending Subsections (c) and (d) and adding Subsection (e), as follows: (c) Requires the executive director or the executive director's designee, rather than the commission, to provide members and employees of the commission the necessary information set forth in this subsection. Makes a nonsubstantive change. (d) Requires the commission to develop and implement policies which clearly separate the policymaking responsibilities of the commission and the management responsibilities of the executive director and the staff of the commission. Deletes language referencing the agency and the governing body thereof. (e) Authorizes the commission, by rule, to develop and implement policies allowing shift differentials to be paid to employees in the vocational rehabilitation program. SECTION 5. Amends Subchapter B, Chapter 91, Human Resources Code, by amending Sections 91.017 and 91.018 and by adding Sections 91.0165 and 91.020, as follows: Sec. 91.0165. CRIMINAL HISTORY RECORD INFORMATION. (a) Authorizes the commission to obtain from any law enforcement or criminal justice agency the criminal history record information for a person applying to become an employee of the commission. (b) Requires the commission, by rule, to establish criteria for denying a person's employment application based on the results of a criminal history check. Sec. 91.017. EQUAL EMPLOYMENT OPPORTUNITY POLICY STATEMENT. (a) Provides that a policy statement must include: (1) personnel policies, including policies relating to recruitment, evaluation, selection, training, and promotion of personnel, that show the intent of the commission to avoid the unlawful employment practices described by Chapter 21 (Employment Discrimination), Labor Code; and (2) an analysis of the extent to which the composition of the commission's personnel is in accordance with state and federal law and a description of reasonable methods to achieve compliance with state and federal law. Deletes the existing language regarding a plan to assure implementation of a program of equal employment opportunity. Makes nonsubstantive changes. (b) Provides that the policy statement must be updated annually, be reviewed by the state Commission on Human Rights for compliance with Subsection (a)(1), and be filed with the governor's office. Sec. 91.018. RELATIONS WITH PUBLIC. (c) Requires the commission to maintain a file on each written complaint filed with the commission, except as required by federal regulations for resolving complaints from people receiving service from the commission. Provides that the file must include: (1) the name of the person who filed the complaint; (2) the date the complaint is received by the commission; (3) the subject matter of the complaint; (4) the name of each person contacted in relation to the complaint; (5) a summary of the results of the review or investigation of the complaint; and (6) an explanation of the reason the file was closed if the agency closed the file without taking action other than to investigate the complaint. Deletes the requirement for the commission to keep an information file relating to a licensee or entity regulated by the commission. Makes nonsubstantive changes. (d) Requires the commission to provide notification of the status of the complaint to the person filing the complaint and each person who is a subject of the complaint, at least quarterly until final disposition of the complaint. Deletes existing text relating to a complaint regarding a licensee or entity regulated by the commission. Makes nonsubstantive changes. (e) Requires the commission to provide to the person filing the complaint and to each person who is subject of the complaint a copy of the commission's policies and procedures relating to complaint investigation and resolution. (g) Redesignated from existing Subsection (f). Sec. 91.020. TRAINING OF COMMISSION MEMBERS. (a) Prohibits a person who is appointed and qualifies for office as a member of the commission from voting, deliberating, or being counted as a member in attendance at a meeting of the commission until the person completes a training program that complies with this section. (b) Specifies that the training program must provide the person with information regarding the legislation that created the commission, the programs operated by the commission, the role and functions of the commission, the rules of the commission with an emphasis on the rules that relate to disciplinary and investigatory authority, the current budget for the commission, the results of the most recent formal audit of the commission, the requirements of: _the open meetings law, Chapter 551, Government Code; _the public information law, Chapter 552, Government Code; _the administrative procedure law, Chapter 2001, Government Code; _and other laws relating to public officials, including conflict of interest laws; and any applicable ethics policies adopted by the commission or the Texas Ethics Commission. (c) Provides that a person appointed to the commission is entitled to reimbursement, as provided by the General Appropriations Act, for the travel expenses incurred in attending the training program regardless of whether the attendance at the program occurs before or after the person qualifies for office. SECTION 6. Amends Subchapter C, Chapter 91, Human Resources Code, by amending Section 91.028 and by adding Sections 91.022, 91.029, 91.031, and 91.032, as follows: Sec. 91.022. SERVICE DELIVERY. (a) Requires the commission to establish and maintain, by rule, guidelines for the delivery of services by the commission. Provides that the guidelines must be consistent with state and federal law and regulations and must include rules relating to the oversight and monitoring of service delivery, guidance to counselors on service delivery procedures, case management benchmarks establishing reasonable time frames for service delivery, and financial planning information for the commission. (b) Requires the commission to establish written procedures relating to the evaluation of services delivered by the commission to provide guidance to counselors and commission employees. Provides that the procedures must include methods to evaluate client progress, service delivery effectiveness, and counselor performance. Sec. 91.028. New title: SERVICES FOR CHILDREN WITH VISUAL IMPAIRMENTS. (a) Created from existing text to authorize the commission to provide services to children with visual impairments to supplement services provided by other state agencies if the commission determines that the provision of the services is appropriate and will assist the children in achieving self-sufficiency. (b) Requires the commission, by rule, to establish the income level for verification of eligibility of a Medicaid client applying for services under Subsection (a). (c) Requires the commission to verify the Medicaid eligibility of a client applying for services under Subsection (a) whose income level is equal to or less than the income level established by the commission under Subsection (b). (d) Requires the commission to verify the Medicaid eligibility of a client who is required by the commission to apply for Medicaid within 90 days of the date the application for services from the commission is made. (e) Requires an employee of the commission, in verifying Medicaid eligibility, to examine appropriate state or private Medicaid eligibility databases and to record on each client's application for services whether Medicaid eligibility was verified, the source of the verification, and the date of the verification. (f) Prohibits a person from soliciting, disclosing, receiving, using, or knowingly permitting the use of information about an applicant for or recipient of children's program services that is acquired by a government officer or employee in the course of the officer's or employee's duties, except as provided by Subsection (g). (g) Authorizes a person to use the information provided under Subsection (f) in accordance with commission rules, only to administer the children's program and to investigate a complaint filed against an agency, employee, or contracted provider of services. Sec. 91.029. RATES FOR MEDICAL SERVICES. (a) Requires the commission to adopt rules and standards governing the determination of rates, including a schedule for periodic reevaluation of the rates that the commission will pay for medical services provided under this chapter. (b) Requires the commission to adopt rules to establish a schedule of rates based on the rules and standards adopted under Subsection (a). Requires the commission, in adopting the rate schedule, to compare the proposed rate schedule to other cost-based rates for medical services and to document the reason that any rate exceeds those rates for the same services, including Medicaid and Medicare rates. Sec. 91.031. CONTRACTS FOR SERVICE. Requires the commission to include in its contracts with service providers provisions relating to clearly defined and measurable program performance standards that directly relate to the service provided, clearly defined penalties for nonperformance of a contract term, and clearly specified accounting, reporting, and auditing requirements applicable to money received under the contract. Requires the commission to monitor a service provider's performance under a contract for service. Requires the commission, in monitoring performance, to use a risk-assessment methodology to institute statewide monitoring of contract compliance of service providers, and to evaluate service providers based on clearly defined and measurable program performance objectives. Sec. 91.032. CONTRACTS FOR ADAPTIVE TECHNOLOGY. Requires the commission to include in a contract with a supplier of adaptive technology equipment provisions that require the supplier to provide training for clients receiving the equipment. SECTION 7. Amends Chapter 94, Human Resources Code, by adding Section 94.016, as follows: Sec. 94.016. BUSINESS ENTERPRISES PROGRAM. Authorizes the commission to administer the Business Enterprises Program in accordance with the provisions of the Randolph-Sheppard Act (20 U.S.C. Section 107 et seq.). Authorizes the commission to administer a retirement program for individuals licensed to operate vending facilities in accordance with applicable state and federal laws. SECTION 8. Amends Subchapter F, Chapter 411, Government Code, by adding Section 411.0985, as follows: Sec. 411.0985. ACCESS TO CRIMINAL HISTORY RECORD INFORMATION: TEXAS COMMISSION FOR THE BLIND. Entitles the Texas Commission for the Blind (commission) to obtain from the Texas Department of Public Safety (department) criminal history record information (information) about an applicant for employment with the commission. Limits the use of this information for the evaluation of an applicant for employment with the commission. Prohibits the commission from releasing or disclosing this information except on court order. Requires the commission to destroy all information after the expiration of any probationary term of the person's employment. SECTION 9. Makes application of this Act prospective. SECTION 10. Effective date: September 1, 1999. SECTION 11. Emergency clause. COMPARISON OF ORIGINAL TO SUBSTITUTE C.S.H.B. 1400 modifies the original bill in SECTION 1 by changing the sunset date from September 1, 2007, to September 1, 2011, for the Texas Commission for the Blind (commission). C.S.H.B. 1400 modifies the original bill in SECTION 1 by amending Section 91.002 to add definitions of "child with visual impairments" and "visually impaired." The committee substitute also provides for the deletion of the existing statutory definition of "visually handicapped child." C.S.H.B. 1400 modifies the original bill in SECTION 1 by increasing the number of members of the commission from two to five that must be blind or visually impaired residents of the state, rather than blind citizens of the state. The committee substitute also includes the provision that one member of the commission must be a family member, relative, or guardian of a blind or visually impaired resident of the state. Additionally, it provides that three, rather than the remaining members of the commission, must be members of the general public. C.S.H.B. 1400 modifies the original bill in SECTION 1 by substituting persons with visual impairment for persons who are blind or visually impaired as persons who are provided services by a Texas trade association in the prohibition against a person from being a member or employee of the commission. C.S.H.B. 1400 modifies the original bill by adding new SECTION 2 to amend Section 91.012(a), Human Resources Code, to strike "annually" from the provision requiring the commission to appoint the executive director with the consent of the governor. C.S.H.B. 1400 modifies the original bill in SECTION 4 by adding new Subsection (e), authorizing the commission, by rule, to develop and implement policies allowing shift differentials to be paid to employees in the vocational rehabilitation program. C.S.H.B. 1400 modifies the original bill in SECTION 5 by adding new Section 96.0165 to authorize the commission to obtain the criminal history record information for a person applying to become an employee of the commission, and require the commission, by rule, to establish criteria for denying a person's employment application based on the results of the criminal history check. C.S.H.B. 1400 modifies the original bill in SECTION 6 by changing the title of Section 91.028 from "Services for Visually Handicapped Children" to "Services for Children with Visual Impairments." In addition, the committee substitute modifies the original bill by adding Subsections (f) and (g), prohibiting a person from soliciting, disclosing, receiving, using, or knowingly permitting the use of information about an applicant for or recipient of children's program services that is acquired by a government officer or employee in the course of the officer's or employee's duties, unless that information is used only to administer the children's program and to investigate a complaint filed against an agency, employee, or contracted provider of services. The committee substitute also modifies the original bill by making conforming changes C.S.H.B. 1400 modifies the original bill in SECTION 6 by redesignating the proposed addition of Section 91.030 to Section 91.031. C.S.H.B 1400 modifies the original bill in SECTION 6 by redesignating the proposed addition of Section 91.031 to Section 91.032, but deletes the proposed requirement to have a supplier of adaptive technology contracted to supply these technologies to the commission maintain the equipment. C.S.H.B. 1400 modifies the original bill in SECTION 7 by adding new Section 94.016, authorizing the commission to administer the Business Enterprises Program in accordance with the provisions of the Randolph-Sheppard Act (20 U.S.C. Section 107 et seq.), and authorizes it to administer a retirement program for individuals licensed to operate vending facilities in accordance with applicable state and federal laws. C.S.H.B. 1400 modifies the original bill in SECTION 8 by adding new Section 411.0985, entitling the Texas Commission for the Blind (commission) to obtain from the Texas Department of Public Safety (department) criminal history record information (information) about an applicant for employment with the commission. The use of this information is limited to the evaluation of the applicant and the commission is prohibited from releasing or disclosing this information except on court order. The commission is also required to destroy all information after the expiration of any probationary term of the person's employment. C.S.H.B. 1400 redesignates SECTIONS 2-5 in the original bill to SECTIONS 3-6 in the committee substitute and SECTIONS 6-8 in the original bill to SECTIONS 9-11 in the committee substitute.