HBA-JRA C.S.S.B. 358 76(R)BILL ANALYSIS Office of House Bill AnalysisC.S.S.B. 358 By: Madla Public Health 5/8/1999 Committee Report (Substituted) BACKGROUND AND PURPOSE The Texas Department of Mental Health and Mental Retardation (MHMR), created in 1965, is responsible for planning, policy development, and oversight of 11 mental health and mental retardation services in the state. It also operates 11 state schools for persons with mental retardation and eight state hospitals for persons with mental illness, as well as two state centers and ten stateoperated community services. To carry out these duties, MHMR has a budget of $1.6 billion and 23,119 employees for the 1999 fiscal year. MHMR serves most of its clientele in the community, as opposed to institutions, by passing the majority of its appropriation to its 38 community MHMR centers through performance contracts. These centers are governed by local boards, usually appointed by county commissioners' courts and provide or contract for services in the community. MHMR is subject to the Sunset Act and will be abolished on September 1, 1999, unless continued by the legislature. After review of MHMR, the Sunset Advisory Commission recommended its continuance, as well as statutory modifications. C.S.S.B. 358 continues MHMR in existence until September 1, 2011, unless it is abolished as provided by the Texas Sunset Act. This bill also does the following: _sets forth a training program for a member of the Texas Board of Mental Health and Mental Retardation (board); _requires the commissioner of mental health or the commissioner's designee to prepare and maintain a written policy statement that implements, rather than a policy that assures implementation of, a program of equal employment opportunity to ensure that all personnel decisions, rather than transactions, are made without regard to certain factors; _requires MHMR to develop a report containing recommendations and information regarding the most efficient long-term use of MHMR's campus-based facilities on a biennial basis; _requires the board to enter into an agreement with the Texas Rehabilitation Commission that defines the roles and responsibilities of each agency regarding the agencies' shared client populations; _requires MHMR to adopt a long-range plan for state-operated institutions, and in developing the plan, to solicit input from local community centers, community representatives, and other interested persons; _requires the board, by rule, to establish criteria regarding the use of MHMR's campus-based facilities to ensure that they offer a full continuum of services; _requires the board, by rule, to establish standards of care for mental health services provided by a state agency or its contractors; _sets forth the Local Authority Advisory Committee; and _addresses joint efforts between MHMR and the Texas Commission of Alcohol and Drug Abuse. RULEMAKING AUTHORITY It is the opinion of the Office of House Bill Analysis that rulemaking authority is expressly delegated to the Texas Board of Mental Health and Mental Retardation in SECTION 6 (Section 533.0325, Health and Safety Code), the Texas Department of Mental Health and Mental Retardation in SECTIONS 7 and 8 (Sections 533.0345 and 533.0351, Health and Safety Code), the Texas Board of Mental Health and Mental Retardation and the Texas Commission on Alcohol and Drug Abuse jointly in SECTION 9 (Section 533.0356, Health and Safety Code), and the Texas Commission on Alcohol and Drug Abuse in SECTION 16 (Section 461.0128, Health and Safety Code) of this bill. SECTION BY SECTION ANALYSIS SECTION 1. Amends Section 532.002, Health and Safety Code, to abolish the Texas Department of Mental Health and Mental Retardation (MHMR) and have Chapter 532 (Organization of Texas Department of Mental Health and Mental Retardation) expire September 1, 2011, rather than September 1, 1999, unless continued in existence as provided by Chapter 325 (Texas Sunset Act), Government Code. SECTION 2. Amends Chapter 532, Health and Safety Code, by adding Section 532.0035, as follows: Sec. 532.0035. BOARD TRAINING. (a) Prohibits a person appointed to and qualifying for office as a member of the Texas Board of Mental Health and Mental Retardation (board) from voting, deliberating, or being counted in attendance at a board meeting until the person completes a training program that complies with this section. (b) Provides that the training program must provide the person with information regarding certain programs, roles, functions, and rules of MHMR and the legislation that created it, as well as MHMR's current budget and the results of the most recent formal audit of MHMR. Additionally, the program must include information about laws regarding open meetings, public information, administrative procedure, and other laws relating to public officials, including conflict-of-interest laws, and any applicable ethics policies adopted by MHMR or the Texas Ethics Commission. (c) Entitles a person appointed to the board to reimbursement provided by the General Appropriations Act for travel expenses incurred in attending the training program, regardless of whether the person qualified for office before or after attending the program. SECTION 3. Amends Sections 532.016(d) and (e), Health and Safety Code, as follows: (d) Requires the commissioner of mental health (commissioner) or the commissioner's designee to prepare and maintain a written policy statement that implements, rather than a policy that assures implementation of, a program of equal employment opportunity to ensure that all personnel decisions, rather than transactions, are made without regard to certain factors. Requires the policy statement to show the intent of MHMR to avoid unlawful employment practices described by Chapter 21 (Employment Discrimination), Labor Code. Further requires the statement to include an analysis of the extent to which the composition of MHMR's personnel is in accordance with state and federal law, and a description of reasonable methods to achieve compliance with these laws. Deletes existing Subdivision (2), which states that the policy statement must include a comprehensive analysis of MHMR work force that meets federal and state guidelines. Makes nonsubstantive changes. (e) Deletes the requirement that the policy statement cover an annual period, and requires it to be reviewed by the Commission on Human Rights for compliance with policies regarding recruitment, evaluation, selection, training, and promotion of personnel that show MHMR's intent to avoid unlawful employment practices. Redesignates existing Subdivision (2) to Subdivision (1). Makes nonsubstantive changes. SECTION 4. Amends Subchapter A, Chapter 533, Health and Safety Code, by adding Section 533.013, as follows: Sec. 533.013. DUPLICATION OF REHABILITATION SERVICES. Requires the board to enter into an agreement with the Texas Rehabilitation Commission (TRC) that defines the roles and responsibilities of each agency regarding the agencies' shared client populations. Provides that the agreement must establish methods to prevent the duplication and fragmentation of employment services. SECTION 5. Amends Section 533.032, Health and Safety Code, as follows: Sec. 533.032. New title: LONG-RANGE PLANNING. (a) Created from existing text. Requires MHMR's long-range plan to include at least the provisions required by Sections 531.022 and 531.023, Government Code (Coordinated Strategic Plan for Health and Human Services, and Submission of Plans and Updates by Agencies, respectively), rather than Section 10, Article 4413(502), V.T.C.S., although the provisions of Chapter 2056 (Strategic Plans of Operation), Government Code, continue to be required. Provides that the plan must cover the provision of services in and policies for state-operated institutions and ensure that the medical needs of the most medically fragile person MHMR serves are met. (b) Requires MHMR, in developing the plan, to solicit input from local authorities for mental health and mental retardation; community representatives; consumers of mental health and mental retardation services, including consumers of campus-based services, and their family members; and other interested persons; and consider the report developed under Subsection (c). (c) Requires MHMR to develop a report containing information and recommendations regarding the most efficient long-term use and management of MHMR's campus-based facilities. Provides that the plan must: include projections regarding bed requirements for state schools and maintenance costs for institutional facilities; document the methodology used to develop the projection of the bed requirements; recommend strategies to maximum the use of institutional facilities, and specify how each state school and hospital will serve and support communities and consumers in its service area, as well as fulfill statewide needs for specialized services. (d) Requires MHMR, in developing the report, to consider the medical needs of the most medically fragile of its clients; the provision of services to clients with severe and profound mental retardation and to persons with mental retardation who are medically fragile or have behavioral problems; the program and service preference information collected under Section 533.038; and input solicited from consumers of services of state schools and state hospitals. (e) Requires MHMR to attach the report to its legislative appropriations request for each biennium, present the report to the governor, governor's budget office, lieutenant governor, speaker of the house of representatives, Legislative Budget Board, and Health and Human Services Commission, and update its long-range plan biennially. SECTION 6. Amends Subchapter B, Chapter 533, Health and Safety Code, by adding Section 533.0325, as follows: Section 533.0325. CONTINUUM OF SERVICES IN CAMPUS FACILITIES. Requires the board, by rule, to establish criteria regarding the uses of MHMR's campus-based facilities as part of a full continuum of services. SECTION 7. Amends Subchapter B, Chapter 533, Health and Safety Code, by adding Section 533.0345 and 533.0346, as follows: Sec. 533.0345. STATE AGENCY SERVICE STANDARDS. Requires MHMR, by rule, to develop model program standards for mental health and mental retardation services and provide them to each state agency that provides or pays for mental health or mental retardation services, as identified by the Health and Human Services Commission. Provides that the standards must be designed to improve the consistency of mental health and mental retardation services provided by or through a state agency. Requires MHMR to review the standards biennially and determine whether each standard is necessary to ensure consistent quality of care. Sec. 533.0346. AUTHORITY TO TRANSFER SERVICES TO COMMUNITY CENTERS. Authorizes MHMR to transfer operations of and services provided at the Amarillo State Center, Beaumont State Center, or Laredo State Center to a community center established under Chapter 534 (Community Services). SECTION 8. Amends Subchapter B, Chapter 533, Health and Safety Code, by adding Section 533.0351, as follows: Sec. 533.0351. LOCAL AUTHORITY ADVISORY COMMITTEE. Defines "local authority" in this section as a local mental health or mental retardation facility. Requires the commissioner to establish a nine-member local authority advisory committee (committee). Sets forth the composition of the committee. Requires the committee to perform certain duties. Requires MHMR to provide the committee a written response regarding any action taken on a written recommendation the committee makes to MHMR, or the reason for MHMR's inaction on the recommendation. Provides that the committee is subject to Chapter 2110 (State Agency Advisory Committees), Government Code. Requires MHMR, by rule, to provide that the committee is abolished on September 1, 2007, in accordance with Section 2110.008 (Duration of Advisory Committees), Government Code, unless the board votes to continue its existence. SECTION 9. Amends Subchapter B, Chapter 533, Health and Safety Code, by adding Section 533.0356, as follows: Sec. 533.0356. LOCAL BEHAVIORAL HEALTH AUTHORITIES. (a) Defines "commission" as the Texas Commission on Alcohol and Drug Abuse (TCADA). (b) Authorizes MHMR and TCADA to jointly designate a local behavioral health authority (authority) in a local service area to provide mental health and mental dependency services in that area. Authorizes MHMR and TCADA to delegate to an authority the authority and responsibility for planning, policy development, coordination, resource allocation, and resource development for and oversight of mental health and chemical dependency services in that service area. Requires an authority to perform certain duties with respect to mental health and substance abuse services. (c) Requires the authority to give proportionate priority to mental health services and chemical dependency services. (d) Authorizes a local mental health authority to apply to MHMR and TCADA for designation as an authority. (e) Authorizes MHMR and TCADA to disburse money, including federal money, to an authority for services. (f) Requires an authority to use such money to ensure that mental health and chemical dependency services are provided in the local service area at the same level as the level of services previously provided through the local mental health authority and TCADA. (g) Requires MHMR and TCADA to solicit and consider written comments from any interested person in determining whether to designate an authority for a service area and in determining the functions of such an authority. (h) Requires an authority to demonstrate to MHMR and TCADA compliance with relevant state standards in the delivery of services involving state funds. (i) Authorizes the Texas Board of Mental Health and Mental Retardation (board) and TCADA to jointly adopt rules to govern the operations of authorities. Authorizes MHMR and TCADA to jointly assign the authority the duty of providing a single point of entry for mental health and chemical dependency services. SECTION 10. Amends Section 533.038, Health and Safety Code, by adding Subsections (d), (e), and (f), as follows: (d) Requires a person with mental retardation, or the person's representative, seeking residential services, to receive a clear explanation of programs and services for which the person is determined to be eligible. Requires the person's preferred programs and services to be documented. Requires the person to receive assistance in gaining access to alternative services if the preferred programs and services are unavailable. (e) Requires MHMR to ensure that the information regarding program and service preferences collected under Subsection (d) is documented and maintained in a manner that permits MHMR to access and use the information for planning activities conducted under Section 533.032. (f) Authorizes MHMR to spend money appropriated for the state school system only in accordance with limitations imposed by the General Appropriations Act. SECTION 11. Amends Subchapter B, Chapter 533, Health and Safety Code, by adding Section 533.039, as follows: Sec. 533.039. CLIENT SERVICES OMBUDSMAN. Requires the commissioner to employ an ombudsman to assist a person or the parent or guardian of a person who has been denied service by MHMR, an MHMR program or facility, or a local mental health or mental retardation facility. Requires the ombudsman to perform certain duties in this capacity. SECTION 12. Amends Section 534.004(a), Health and Safety Code, to make a conforming change. SECTION 13. Amends Section 534.005, Health and Safety Code, to delete the text prohibiting a person appointed as a member of a board of trustees by a local agency or organizational combination of local agencies primarily located in only one county from serving more than four consecutive and complete two-year terms. SECTION 14. Amends Section 534.007, Health and Safety Code, as follows: Sec. 534.007. New title: PROHIBITED ACTIVITIES BY FORMER OFFICERS OR EMPLOYEES; OFFENSE. (a) Prohibits a former officer or employee of a community center who ceases, rather than terminates, service or employment with the center from representing any person or receiving compensation for services rendered on behalf of any person regarding a matter in which the former officer or employee participated during the period of employment, either through personal involvement or because the case or proceeding was a matter within the officer's of employee's official responsibility. Deletes text prohibiting the former officer or employee, for one year after the date on which the officer or employee terminates service or employment, from directly or indirectly attempting or aiding in the attempt to procure a contract with the community center where the individual served or was employed, if the contract relates to a program or service in which the individual was directly concerned or for which the individual had administrative responsibility. (b) Makes this section inapplicable to a former employee who is compensated on the last date of service or employment below the amount prescribed by the General Appropriations Act for salary group 17, Schedule A, or salary group 9, Schedule B, rather than for step 1, salary group 17, of the position classification salary schedule, or a former officer or employee who is employed by a state agency or another community center. (c) Makes Subsection (a) inapplicable to a proceeding related to policy development that was concluded before the officer's or employee's service or employment ceased. (d) Created from existing text. Makes no changes. (e) Defines "participated" as to have taken action as an officer or employee through decision, approval, disapproval, recommendation, giving advice, investigation, or similar action; and "particular matter" as a specific investigation, application, request for a ruling or determination, proceeding related to the development of policy, contract, claim, charge, accusation, arrest, or judicial or other proceeding. SECTION 15. Amends Section 534.065(b), Health and Safety Code, to authorize, rather than require, a mental health or mental retardation authority to renew a contract only if the contract meets the criteria provided by Sections 2155.074 and 2155.144 (Best Value Standard for Purchase of Goods or Services, and Health Care Purchasing, respectively), Government Code. Deletes existing text regarding specific circumstances under which the authority may renew the contract. SECTION 16. Amends Chapter 461, Health and Safety Code, by adding Section 461.0128, as follows: Sec. 461.0128. STATE AGENCY SERVICES STANDARDS. (a) Requires TCADA, by rule, to establish standards of care for substance abuse services provided by a state agency or its contractors. Provides that these standards must ensure that the quality of services provided by or through a state agency is consistent with that provided by TCADA. Requires TCADA to review the standards biennially and determine whether each standard is necessary to ensure consistent quality of care. SECTION 17. Amends Chapter 461, Health and Safety Code, by adding Section 461.0129, as follows: Sec. 461.0129. LOCAL BEHAVIORAL HEALTH AUTHORITIES. Authorizes TCADA, to designate and provide services through local behavioral health authorities as provided by Section 533.0356 and rules adopted jointly with the board. SECTION 18. (a) Makes application of Section 532.0035 prospective to a member of the Texas Board of Mental Health and Mental Retardation appointed on or after the date of this Act. (b) Makes application of Section 534.007 prospective to a person who ceases employment on or after the effective date of this Act. (c) Makes application of Section 534.065(b) prospective to a contract considered for renewal on or after the effective date of the Act. SECTION 19. Effective date: September 1, 1999. SECTION 20. Emergency clause. COMPARISON OF ORIGINAL TO SUBSTITUTE The substitute modifies the original in SECTION 5 (Section 533.032, Health and Safety Code) in proposed Subsection (b) to additionally require the Texas Department of Mental Health and Mental Retardation (MHMR), in developing the plan, to solicit input from consumers of campus-based mental health and mental retardation services. The substitute modifies proposed Subsection (d) to additionally require MHMR, in developing the report, to consider the provision of services to clients with mental retardation who are medically fragile or have behavioral problems; the program and service preference information collected under Section 533.038; and input solicited from consumers of services of state schools and state hospitals. The substitute modifies the original in SECTION 6 (proposed Section 533.0325, Health and Safety Code) to make nonsubstantive changes. The substitute modifies the original in SECTION 7 in proposed Section 533.0345, Health and Safety Code, to include mental retardation services among the services for which MHMR is required, by rule, to develop model program standards. The substitute also adds a new Section 533.0346, Health and Safety Code, to authorize MHMR to transfer operations of and services provided at the Amarillo State Center, Beaumont State Center, or Laredo State Center to a community center established under Chapter 534 (Community Services). The substitute modifies the original in SECTION 8 (proposed Section 533.0351, Health and Safety Code) to provide that the purpose of the advisory committee is to advise the commissioner on technical and administrative issues that directly affect local authority responsibilities, rather than assist the commissioner in developing policies for the operation of local authorities. The substitute provides that one member representing the public appointed by the commissioner sits on the committee, rather than representatives of the public, consumers of local authority services, and family members of those consumers, appointed by the commissioner. The substitute deletes the requirement that the advisory committee recommend to the commissioner the development of rules related to local authority functions. The substitute also makes conforming and nonsubstantive changes. The substitute modifies the original in SECTION 9 (proposed Section 533.0356, Health and Safety Code) by deleting proposed Subsection (h), which would have required an authority to consider ultimate costs and benefits and client care issues to ensure consumer choices of services and the best use of public money in assembling a network of service providers and determining whether to become a provider of a service or to contract that service to another organization. The substitute modifies the original in SECTION 10 (Section 533.038, Health and Safety Code) by adding Subsections (e) and (f) to require MHMR to ensure that the information regarding program and service preferences collected under Subsection (d) is documented and maintained in a manner that permits MHMR to access and use the information for planning activities conducted under Section 533.032 and to authorize MHMR to spend money appropriated for the state school system only in accordance with limitations imposed by the General Appropriations Act. The substitute modifies the original in SECTION 11 to require the ombudsman to assist the person in gaining access to an appropriate program or in placing the person on an appropriate waiting list, rather than refer the person to an appropriate program, facility, or service of MHMR or any other entity, if any.