HBA-MPM, CCH C.S.H.B. 967 77(R) BILL ANALYSIS Office of House Bill AnalysisC.S.H.B. 967 By: Naishtat Human Services 4/10/2001 Committee Report (Substituted) BACKGROUND AND PURPOSE In L.C. and E.W. v. Olmstead (1999), the U.S. Supreme Court ruled that states must provide communitybased services for persons with a disability when it is medically appropriate and desired by the persons with a disability. In response to the ruling, the governor issued an executive order affirming that Texas is committed to providing community-based alternatives for persons with disabilities. C.S.H.B. 967 sets forth Texas's comprehensive response to the Olmstead ruling by clarifying the state's responsibilities to provide meaningful community alternatives for persons with disabilities, assigning responsibilities to relevant agencies, authorizing contracts with community-based organizations, establishing agency workgroups, an advisory committee, and a housing assistance program, setting agency reporting and implementation requirements, and developing a pilot program to assess the delivery of long-term care. RULEMAKING AUTHORITY It is the opinion of the Office of House Bill Analysis that rulemaking authority is expressly delegated to the commissioner of health and human services in SECTION 2 (Section 531.042, Government Code) and SECTION 5, the Health and Human Services Commission in SECTION 2 (Section 531.042, Government Code), the Texas Department of Human Services in SECTION 4 (Sections 22.037 and 22.038, Human Resources Code), the Texas Department of Mental Health and Mental Retardation in SECTION 4 (Section 22.038, Human Resources Code), and the Department of Protective and Regulatory Services in SECTION 4 (Section 22.038, Human Resources) of this bill. ANALYSIS C.S.H.B. 967 amends the Government and Human Resources codes to require the Health and Human Services Commission (HHSC) and appropriate health and human services agencies to implement a comprehensive, effectively working plan (plan) that fosters independence, productivity, and meaningful opportunities for a person with a disability to live in an appropriate setting in the community. The bill provides that the plan require appropriate health and human services agencies to inform a person living in an institution, the person's family member, and person's legally authorized representative of the care and support options available to the person in the community; recognize that certain disabled persons are represented by a legally authorized representative whom the agencies must include in a decision-making process; facilitate a timely and appropriate transfer to a community setting; and develop strategies to prevent the unnecessary placement in an institution of a person who is at risk of institutionalization because of a lack of community services (Sec. 531.0244, Government Code). The bill provides that a person with a mental illness who is admitted to a facility of the Texas Department of Mental Health and Mental Retardation (MHMR) for inpatient services three or more times during a 180day period is presumed to be in imminent risk of requiring placement in an institution. The bill specifies that the strategies must be developed in a way that presumes the person's eligibility for and the appropriateness of intensive community-based services and support. The bill prohibits a health and human services agency from denying an eligible person access to an institution or removing an eligible disabled person from an institution if the person prefers to be in the institution (Sec. 531.0244, Government Code). The bill requires MHMR no later than March 1, 2002 to implement a community living options information process in each institution to inform residents with mental retardation and their legally authorized representatives of alternative community living options. MHMR is required to provide this information at least annually and to provide the information at any other time upon request from a resident or the resident's representative. If a resident with mental retardation indicates a desire to pursue an alternative community living option after receiving the information, MHMR is required to refer the resident or resident's representative to the local mental retardation authority who is required to place the resident in an alternative community living option or on a waiting list. MHMR is required to document in the records of each resident the information provided to the resident or the resident's representative and the results of that process (Sec. 531.02443, Government Code and SECTION 6). The bill requires the commissioner of health and human services (commissioner) to adopt rules no later than December 1, 2001 to require each health and human services agency to provide each patient or client of the agency and at least one family member if possible with information regarding all care and support options before the agency allows the patient or client to be placed in a care setting. This information must also be provided to the client's legally authorized representative, if the client has one, or if the client is in the conservatorship of a health and human services agency, the client's agency caseworker and foster parents if applicable. Agencies are required to provide, no later than March 1, 2002, the information to each patient or client in a care setting on September 1, 2001. An agency that provides a patient, client, or representative with information regarding care and support options available to the patient or client is required to assist the person in taking advantage of an option selected. If the selected option is not immediately available, the agency is required to provide assistance in placing the person on a waiting list (Sec. 531.042, Government Code, and SECTIONS 5 and 7). The bill requires the Texas Department of Human Services (DHS) in cooperation with MHMR and PRS to develop and implement a pilot program in at least five sites, no later than December 1, 2002. The bill requires the program subject to the availability of funds to include: _a comprehensive system of improved policies and procedures to avoid inappropriately placing a person with a disability in an institution; _a program under which physicians and hospital discharge staff are trained, required to inform a person with a disability of all care and support options available to the person, and required to contact and offer the assistance of a permanency planning specialist regarding community-based alternatives to institutionalization; _a program to provide a transition case manager to assist a disabled person in making a transition to a community-based alternative after that person or person's legally authorized representative agrees on the transition and to coordinate with the local mental health or mental retardation authority in providing services, conducting outreach services, and implementing community living options information; _a program to provide grants to community-based organizations to conduct outreach initiatives to identify persons who may be inappropriately residing in an institution and; _a program under which a person with a disability is presumed eligible for community-based care (Sec. 22.037, Human Resources Code and SECTION 8). The bill requires outreach activities specified in the pilot program components to be conducted in addition to information provided through the community living options information process. DHS is required, by rule, to establish qualifications for a person not affiliated with DHS, MHMR, or a state school who implements a component of the pilot program by providing outreach services to a resident of a state school. The bill provides that DHS shall require that the person meet those qualifications. MHMR is required to ensure that the legally authorized representative of a state school is present during each contact between a resident and a person providing outreach services if the representative requests to be present. MHMR is also required to ensure that a person providing outreach services does not have contact with a resident of a state school if the resident's representative opposes the contact. MHMR is required to implement each component of the pilot program for which the legislature appropriates sufficient money (Sec. 22.037, Human Resources Code). The bill also requires DHS, MHMR and PRS to adopt a memorandum of understanding, no later than September 1, 2002 to implement the pilot program that defines each agency's responsibilities and provides for interagency coordination. No later than September 1 of each year, DHS, MHMR and the Department of Protective and Regulatory Services (PRS) are required to review and update the memorandum. Each agency is required to adopt by rule the memorandum of understanding and subsequent revisions (Sec. 22.038, Human Resources Code and SECTION 9). C.S.H.B. 967 requires the commissioner to establish an interagency work group and an advisory committee to assist and advise HHSC and appropriate agencies in developing a plan to ensure an appropriate care setting for persons with disabilities no later than December 1, 2001. The bill sets forth provisions regarding the membership and the administration of the work group and the advisory committee. The work group is required to study and make various recommendations to HHSC on developing the plan and identifying appropriate components of the pilot program for coordination and integration between DHS, MHMR and PRS. The bill requires the advisory committee to advise the commission and appropriate agencies with respect to implementing the plan (Secs. 531.02441 and 531.02442, Government Code and SECTION 5). The bill requires HHSC to coordinate with DHS, the Texas Department of Housing and Community Affairs (TDHCA), and MHMR to develop a housing assistance program (program) to assist persons with disabilities in transferring from an institution to an integrated housing setting. HHSC shall require DHS to implement and administer the program, and authorizes DHS to coordinate with TDHCA in this process. DHS is required to provide information to HHSC as necessary to facilitate the programs' development and implementation (Sec. 531.055, Government Code). The bill sets forth deadlines and content and distribution requirements for reports that agencies and the workgroup are required to submit about the implementation of these provisions (Secs. 531.0244, 531.02441, and 531.042, Government Code, Sec. 22.037, Human Resources Code and SECTIONS 7 and 8). EFFECTIVE DATE September 1, 2001. COMPARISON OF ORIGINAL TO SUBSTITUTE C.S.H.B. 967 differs from the original bill by providing that the appropriate health and human services agencies (agencies) inform family members and legally authorized representative of a disabled person regarding care and support options and recognize that certain disabled persons are represented by legally authorized representatives who must be included in any decision-making process (Sec. 531.0244, Government Code). The substitute provides that certain persons with mental illnesses are presumed to be at imminent risk of requiring placement. The substitute provides that the strategies to prevent placement of an individual in an institution must be developed in way that presumes the person's eligibility for such placement. The substitute prohibits an agency from denying an eligible disabled person access to an institution or removing a disabled person from an institution if the person prefers to remain there (Sec. 241.151, Health and Safety Code). The substitute includes the requirement that the Texas Department of Mental Health and Mental Retardation (MHMR) develop a community living options information process no later than March 1, 2002 for persons with mental retardation and establishes a process by which eligible persons are placed in an alternative community living option or on a waiting list (Sec. 531.02443, Government Code). The substitute requires the commissioner of health and human services to require each agency to provide information to at least one family member of a patient or client if possible and the patient or client's legally authorized representative regarding all care and support options available. The substitute further provides that if the patient or client is in the conservatorship of an agency, information must be provided to the patient's or client's agency caseworker and foster parents if applicable. The substitute specifies that if a patient or client selects a certain support option and it is not available, the agency providing the person the information is required to put the person on a waiting list for that option (Sec. 531.042, Government Code). The substitute includes the Department of Protective and Regulatory Services (PRS) in provisions related to the pilot program. The substitute specifies that transitioning a disabled person from an institution to a community-based alternative care setting is contingent upon the person's legally authorized representative's agreement that the person should make the transition and requires the case transition manager to coordinate with a local mental health or mental retardation authority. The substitute specifies that outreach activities required as part of the pilot program be conducted in addition to the community living options information process. The substitute requires MHMR to ensure that a legally authorized representative of a resident of a state school is present during contact between the resident and a person providing outreach services who is not affiliated with DHS, MHMR, PRS, or the school (Sec. 22.037, Human Resources Code). The substitute provides that the pilot program described by this bill commences no later than December 1, 2002 rather than September 1, 2003 as specified in the original (SECTION 8). The substitute provides that the memorandum of understanding adopted by DHS, MHMR, and PRS must be adopted no later than September 1, 2002 rather than December 1, 2002 as specified in the original (SECTION 9). The substitute removes the provision in the original authorizing an agency to obtain the assistance of a community based organization in providing information regarding care and support options.