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.