H.B. No. 2572




AN ACT
relating to the functions of local mental health and mental retardation authorities. BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: SECTION 1. Section 533.031, Health and Safety Code, is amended by adding Subdivisions (4), (5), (6), and (7) to read as follows: (4) "Commission" means the Health and Human Services Commission. (5) "Executive commissioner" means the executive commissioner of the Health and Human Services Commission. (6) "ICF-MR and related waiver programs" includes ICF-MR programs, home and community-based services, Texas home living waiver services, or another Medicaid program serving persons with mental retardation. (7) "Qualified service provider" means an entity that meets requirements for service providers established by the executive commissioner. SECTION 2. Section 533.035, Health and Safety Code, is amended by amending Subsections (a) and (e) and adding Subsections (b-1) and (e-1) to read as follows: (a) The executive commissioner shall designate a local mental health authority and a local mental retardation authority in one or more local service areas. The executive commissioner [board] may delegate to the local authorities the [board's] authority and responsibility of the executive commissioner, the commission, or a department of the commission related to [for the] planning, policy development, coordination, including coordination with criminal justice entities, resource allocation, and resource development for and oversight of mental health and mental retardation services in the most appropriate and available setting to meet individual needs in that service area. The executive commissioner may designate a single entity as the local mental health authority and the local mental retardation authority for a service area. In designating local authorities, the executive commissioner may not decrease the number of local mental health authorities or local mental retardation authorities from the number that existed on January 1, 2005, except on: (1) a request from two or more local authorities; or (2) a determination by the executive commissioner that a local authority has substantially failed to meet the terms and conditions of the performance contract. (b-1) This subsection expires September 1, 2007, and does not apply to rate setting or the payment rates for intermediate care facilities for the mentally retarded, home and community-based services, Texas home living, and mental retardation service coordination. Before the department institutes a change in payment methodology, the department shall: (1) evaluate various forms of payment for services including fee-for-service, case rate, capitation, and other appropriate payment methods to determine the most cost-effective and efficient form of payment for services; (2) evaluate the effect of each proposed payment methodology on: (A) the availability of services in urban and rural service areas; (B) the availability of services for persons who are indigent; and (C) the cost certainty of the delivery of Medicaid rehabilitation services; (3) develop an implementation plan for the new payment methodology that integrates the department's findings under Subdivisions (1) and (2); and (4) report the department's findings and the implementation plan for a new payment methodology to the legislature not later than January 1, 2007. (e) In assembling a network of service providers, a local mental health [and mental retardation] authority may serve as a qualified service provider only in accordance with Subsection (c) and [of services only as a provider of last resort and only if the authority demonstrates to the department that: [(1)] the authority shall make [has made] every reasonable attempt to solicit the development of an available and appropriate provider base that is sufficient to meet the needs of consumers in its service area[; and [(2) there is not a willing provider of the relevant services in the authority's service area or in the county where the provision of the services is needed]. (e-1) A local mental retardation authority may serve as a provider of ICF-MR and related waiver services only if: (1) the authority complies with the limitations prescribed by Section 533.0355(c); or (2) the ICF-MR and related waiver services are necessary to ensure the availability of services and the authority demonstrates to the commission that there is not a willing ICF-MR and related waiver service qualified service provider in the authority's service area where the service is needed. SECTION 3. Section 533.0355, Health and Safety Code, is amended to read as follows: Sec. 533.0355. LOCAL MENTAL RETARDATION AUTHORITY RESPONSIBILITIES [ALLOCATION OF DUTIES] UNDER CERTAIN MEDICAID [WAIVER] PROGRAMS. (a) The executive commissioner shall adopt rules establishing the roles and responsibilities of local mental retardation authorities [In this section, "waiver program" means the local mental retardation authority waiver program established under the state Medicaid program]. (b) In adopting rules under this section, the executive commissioner must include rules regarding: (1) access; (2) intake; (3) eligibility functions; (4) enrollment, initial assessment, and service authorization; (5) utilization management; (6) safety net functions, including crisis management services and assistance in accessing facility–based care; (7) service coordination functions; (8) provision and oversight of state general revenue services; (9) local planning functions, including stakeholder involvement, technical assistance and training, and provider complaint and resolution processes; and (10) processes to assure accountability in performance, compliance, and monitoring. [A provider of services under the waiver program shall: [(1) develop a person-directed plan and an individual program plan for each person who receives services from the provider under the waiver program; [(2) perform justification and implementation functions for the plans described by Subdivision (1); [(3) conduct case management under the waiver program, other than case management under Subsection (c)(3), in accordance with applicable state and federal laws; and [(4) plan, coordinate, and review the provision of services to all persons who receive services from the service provider under the waiver program.] (c) In determining eligibility under Subsection (b)(3), an authority must offer a state school as an option among the residential services available to an individual who is eligible for those services and who meets the department's criteria for state school admission, regardless of whether other residential services are available to the individual. The community mental health and mental retardation centers must document the number of individuals who are eligible for state school services under the department's criteria, the number of individuals who meet eligibility who are requesting state school admissions, and the number of individuals who meet eligibility criteria who are referred for state school services. The Health and Human Services Commission will adopt rules related to the performance criteria required of the community mental health and mental retardation centers regarding the provision of information related to services and referral for services. (d) In establishing a local mental retardation authority's role as a qualified service provider of ICF-MR and related waiver programs under Section 533.035(e-1), the executive commissioner by rule shall require the local mental retardation authority to: (1) base the authority's provider capacity on the authority's August 2004 enrollment levels for the waiver programs the authority operates and, if the authority's enrollment levels exceed those levels, to reduce the levels by voluntary attrition; and (2) base any increase in the authority's provider capacity on: (A) the authority's state-mandated conversion from one Medicaid program to another Medicaid program allowing for a permanent increase in the authority's provider capacity in accordance with the number of persons who choose the authority as their provider; (B) the authority's voluntary conversion from one Medicaid program to another Medicaid program allowing for a temporary increase in the authority's provider capacity in accordance with the number of persons who choose the authority as their provider; or (C) other extenuating circumstances that: (i) are clearly defined in rules adopted by the executive commissioner; (ii) are monitored and approved by the department; and (iii) do not include increases resulting from refinancing and do not include increases that unnecessarily promote the authority's provider role over its role as a local mental retardation authority [A local mental retardation authority shall: [(1) manage any waiting lists for services under the waiver program; [(2) perform functions relating to consumer choice and enrollment for persons who receive services under the waiver program; and [(3) conduct case management under the waiver program relating to funding disputes between a service provider and the local mental retardation authority]. (e) In adopting a rule under this section, the executive commissioner shall seek the participation of and comments from local mental retardation authorities, providers, advocates, and other interested stakeholders [(d) The department shall perform all administrative functions under the waiver program that are not assigned to a service provider under Subsection (b) or to a local mental retardation authority under Subsection (c). Administrative functions performed by the department include: [(1) any surveying, certification, and utilization review functions required under the waiver program; and [(2) managing an appeals process relating to decisions that affect a person receiving services under the waiver program]. (f) Any increase based on extenuating circumstances under Subsection (d)(2)(C) is considered a temporary increase in the local mental retardation authority's provider capacity [(e) The department shall review: [(1) screening and assessment of levels of care; [(2) case management fees paid under the waiver program to a community center; and [(3) administrative fees paid under the waiver program to a service provider]. (g) At least biennially, the department shall review and determine the local mental retardation authority's status as a qualified service provider in accordance with criteria that includes the consideration of the authority's ability to assure the availability of services in its area, including: (1) program stability and viability; (2) the number of other qualified service providers in the area; and (3) the geographical area in which the authority is located [(f) The department shall perform any function relating to inventory for persons who receive services under the waiver program and agency planning assessments]. (h) The Department of Aging and Disability Services shall ensure that local services delivered further the following goals: (1) to provide individuals with the information, skills, opportunities, and support to make informed decisions regarding the services for which the individual is eligible; (2) to respect the rights, needs, and preferences of an individual receiving services; and (3) to integrate individuals with mental retardation and developmental disabilities into the community in accordance with relevant independence promotion plans and permanency planning laws. [(g) The review required under Subsection (e) must include a comparison of fees paid before the implementation of this section with fees paid after the implementation of this section. The department may adjust fees paid based on that review. [(h) The department shall allocate the portion of the gross reimbursement funds paid to a local authority and a service provider for client services for the case management function in accordance with this section and to the extent allowed by law. [(i) The department may adopt rules governing the functions of a local mental retardation authority or service provider under this section.] SECTION 4. Section 535.002(b), Health and Safety Code, is amended to read as follows: (b) If feasible and economical, the commission shall [department may] use local mental health and mental retardation authorities to implement this chapter. [However, the department may not designate those local mental health and mental retardation authorities as the sole providers of services if other providers are available.] SECTION 5. (a) Sections 533.035(f) and (g), Health and Safety Code, are repealed. (b) Section 2.82A, Chapter 198, Acts of the 78th Legislature, Regular Session, 2003, is repealed. SECTION 6. Not later than January 1, 2007, the Health and Human Services Commission shall submit a report to the governor, lieutenant governor, and speaker of the house of representatives that includes any information the commission finds relevant regarding the implementation of Sections 535.035 and 535.0355, Health and Safety Code, as amended by this Act, by local mental retardation authorities. SECTION 7. (a) The legislature shall establish a joint interim committee to study the local mental health and mental retardation services delivery system and to develop recommendations for improving the provision of services and increasing the accountability for funds management in the system. (b) The committee should consider whether the current local system meets the following goals: (1) improving [the integration of] services to persons who have physical illness as well as mental illness or chemical dependency and developing a continuum of services to all persons who are aging or who have physical or cognitive disabilities; and (2) allowing the appropriate level of flexibility needed to meet unique community needs, while addressing state requirements and ensuring an appropriate level of budget certainty for the state. (c) In developing recommendations for the improvement of services delivery the committee should consider: (1) the role of a community center and whether a community center should be designated as a provider of public safety net services for jail diversion services, crisis services, certain community-oriented services, community hospital services, or other services necessary to ensure the statewide availability of services; and (2) the findings and recommendations of the mental health services task force as reported to the Senate Health and Human Services interim committee of the 77th Legislature in March 2002 and the House Bill 1734 committee report from the 75th Legislature, Regular Session, 1997. (d) Not later than January 1, 2007, the committee shall report its findings and recommendations to the governor, the lieutenant governor, and the speaker of the house of representatives. (e) The lieutenant governor and the speaker of the house of representatives shall determine the composition of the committee. The committee must be composed of five members of the senate and five members of the house of representatives. The presiding officer of the committee must be a member designated from the senate. (f) This section expires September 1, 2007. SECTION 8. This Act takes effect September 1, 2005. ______________________________ ______________________________ President of the Senate Speaker of the House I certify that H.B. No. 2572 was passed by the House on May 10, 2005, by the following vote: Yeas 132, Nays 7, 3 present, not voting; that the House refused to concur in Senate amendments to H.B. No. 2572 on May 27, 2005, and requested the appointment of a conference committee to consider the differences between the two houses; and that the House adopted the conference committee report on H.B. No. 2572 on May 29, 2005, by a non-record vote. ______________________________ Chief Clerk of the House I certify that H.B. No. 2572 was passed by the Senate, with amendments, on May 25, 2005, by the following vote: Yeas 30, Nays 1; at the request of the House, the Senate appointed a conference committee to consider the differences between the two houses; and that the Senate adopted the conference committee report on H.B. No. 2572 on May 29, 2005, by the following vote: Yeas 31, Nays 0. ______________________________ Secretary of the Senate APPROVED: __________________ Date __________________ Governor