HBA-MPM S.B. 367 77(R) BILL ANALYSIS Office of House Bill AnalysisS.B. 367 By: Zaffirini Human Services 5/9/2001 Engrossed 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. Senate Bill 367 sets forth Texas' 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 an interagency task force 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 Senate Bill 367 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 the most appropriate care setting, considering specified factors. 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. 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. However, an agency is authorized to deny a person access to an institution or remove the person from an institution to protect the person's health or safety. The bill requires each health and human services agency to implement the strategies and recommendations under the plan subject to the availability of funds (Sec. 531.0244, Government Code). S.B. 367 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, subject to the availability of funds, 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. 531.02442, 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, subject to the availability of funds. If the selected option is not immediately available, the agency is required to provide assistance in placing the person on a waiting list. The bill removes the requirement that the agency obtain a statement signed by the patient, client, or guardian that the patient or client has been informed about care and support options (Sec. 531.042, Government Code, and SECTIONS 5 and 7). S.B. 367 requires the Texas Department of Human Services (DHS) in cooperation with MHMR and PRS to develop and implement a pilot program no later than December 1, 2002 in at least three sites, with one site in a rural area, one in an urban area, and one in a mixed urban and rural area. DHS is required to consider the length of waiting lists for community-based services and support and give preference to areas with the longest waiting lists when choosing the sites. 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 educated about available options and required to inform a person with a disability of all care and support options available to the person; _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 and conducting outreach services; _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). 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). S.B. 367 requires the commissioner to establish an interagency task force to assist HHSC and appropriate health and human services 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 task force. The task force is required to study and make 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 task force to submit a report to the commissioner on its findings and recommendations no later than September 1 of each year. Additionally, the task force is required to advise HHSC and the appropriate health and human services agencies with respect to implementing the plan (Sec. 531.02441, Government Code and SECTION 5). Subject to availability of funds, 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. Subject to availability of funds, HHSC shall require DHS to implement and administer the program. The bill requires DHS to coordinate with TDHCA in implementing and administering the program, determining the availability of funding from the United State Department of Housing and Urban Development, and obtaining those funds. DHS and TDHCA are required to provide information to HHSC as necessary to facilitate the program's development and implementation (Sec. 531.055, Government Code). S.B. 367 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.