80R8439 UM-D
	By: Truitt, Davis of Harris, Rose, Isett,	H.B. No. 2439
	McReynolds, et al.

	A BILL TO BE ENTITLED
	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), (7), and (8) 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 Section 1915(c) waiver programs, home and community-based
	services, Texas home living waiver services, or another Medicaid
	program serving persons with mental retardation.
	(7)  "Section 1915(c) waiver program" means a federally
	funded Medicaid program of the state that is authorized under
	Section 1915(c) of the federal Social Security Act (42 U.S.C.
	Section 1396n(c)).
	(8)  "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), (c), 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.
	(b-1)  This subsection expires September 1, 2009, and
	applies only to the determination of payment methodologies for
	mental health services and not to rate setting or the payment rates
	for intermediate care facilities for the mentally retarded, Section
	1915(c) waiver programs, mental retardation service coordination,
	and other Medicaid services.  Before the Department of State Health
	Services institutes a change in payment methodology for mental
	health services, 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;
	(C)  the cost certainty of the delivery of
	Medicaid rehabilitation mental health services; and
	(D)  the ability of the local mental health
	authority to meet unique local needs and develop and manage a
	network of providers;
	(3)  determine the implementation and ongoing
	operational costs for the state and local mental health authorities
	associated with each proposed payment methodology;
	(4)  develop an implementation plan, with the advice
	and assistance of the local authority network advisory committee,
	for any new payment methodology for mental health services that
	integrates the department's findings under Subdivisions (1), (2),
	and (3); and
	(5)  report the department's findings and the
	implementation plan for any new payment methodology for mental
	health services to the executive commissioner and the legislature
	not later than January 1, 2009.
	(c)  A local mental health and mental retardation authority,
	with the department's approval, shall use the funds received under
	Subsection (b) to ensure mental health, mental retardation, and
	chemical dependency services are provided in the local service
	area. The local authority shall consider public input, ultimate
	cost-benefit, and client care issues to ensure consumer choice and
	the best use of public money in:
	(1)  assembling a network of service providers; [and]
	(2)  making recommendations relating to the most
	appropriate and available treatment alternatives for individuals
	in need of mental health or mental retardation services; and
	(3)  procuring services for a local service area,
	including a request for proposal or open-enrollment procurement
	method.
	(e)  Subject to Section 533.0358, in [In] assembling a
	network of service providers, a local mental health [and mental
	retardation] authority may serve as a provider of services only as a
	provider of last resort and only if the local authority
	demonstrates to the department in the local authority's local
	network development plan that:
	(1)  the local authority 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 local 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 programs only if:
	(1)  the local authority complies with the limitations
	prescribed by Section 533.0355(d); or
	(2)  the ICF-MR and related waiver programs are
	necessary to ensure the availability of services and the local
	authority demonstrates to the commission that there is not a
	willing ICF-MR and related waiver program qualified service
	provider in the local authority's service area where the service is
	needed.
	SECTION 3.  Section 533.0351, Health and Safety Code, is
	amended to read as follows:
	Sec. 533.0351.  LOCAL AUTHORITY NETWORK [TECHNICAL]
	ADVISORY COMMITTEE.  (a) [In this section, "local authority" means
	a local mental health or mental retardation authority.
	[(b)] The executive commissioner shall establish a
	[nine-member] local authority network advisory committee to advise
	the executive commissioner and the Department of State Health
	Services on technical and administrative issues that directly
	affect local mental health authority responsibilities.
	(b) [(c)]  The committee is composed of equal numbers of
	representatives of local mental health authorities, community
	mental health service providers, private mental health service
	providers, local government officials, advocates for individuals
	with mental health needs, consumers of mental health services,
	family members of individuals with mental health needs, and other
	individuals with expertise in the field of mental health [and one
	member representing the public] appointed by the executive
	commissioner. In addition, the executive commissioner may appoint
	facilitators to the committee as necessary.  In appointing the
	members, the executive commissioner shall also ensure a balanced
	representation of:
	(1)  different regions of this state;
	(2)  rural and urban counties; and
	(3)  single-county and multicounty local mental health
	authorities.
	(c)  Members [(d)  Except for the member representing the
	public, members] appointed to the advisory committee must have some
	knowledge of, familiarity with, or understanding of [expertise in]
	the day-to-day operations of a local mental health authority.
	(d) [(e)]  The advisory committee shall:
	(1)  review rules and proposed rules and participate in
	any negotiated rulemaking process related to local mental health
	authority operations;
	(2)  advise the executive commissioner and the
	Department of State Health Services regarding evaluation and
	coordination of initiatives related to local mental health
	authority operations;
	(3)  advise the executive commissioner and the
	Department of State Health Services [and assist the department] in
	developing a method of contracting with local mental health
	authorities that will result in contracts that are flexible and
	responsive to:
	(A)  the needs and services of local communities;
	and
	(B)  the department's performance expectations;
	(4)  coordinate with [and monitor the activities of]
	work groups whose actions may affect local mental health authority
	operations;
	(5)  report to the executive commissioner and the
	Department of State Health Services [board] on the committee's
	activities and recommendations at least once each fiscal quarter;
	and
	(6)  work with the executive commissioner or the
	Department of State Health Services as the executive commissioner
	directs.
	(e) [(f)]  For any written recommendation the committee
	makes to the Department of State Health Services [department], the
	department shall provide to the committee a written response
	regarding any action taken on the recommendation or the reasons for
	the department's inaction on the subject of the recommendation.
	(f)  The [(g) Except as provided by this subsection, the]
	committee is subject to Chapter 2110, Government Code, except that
	the committee is not subject to Section 2110.004 or 2110.008,
	Government Code. The committee is abolished [automatically] on
	September 1, 2017 [2007], unless the executive commissioner [board]
	adopts a rule continuing the committee in existence beyond that
	date.
	(g)  The Department of State Health Services may reimburse
	consumers of mental health services and family members of
	individuals with mental health needs appointed to the committee for
	travel costs incurred in performing their duties as provided in the
	General Appropriations Act.
	SECTION 4.  Subchapter B, Chapter 533, Health and Safety
	Code, is amended by adding Section 533.03521 to read as follows:
	Sec. 533.03521.  LOCAL NETWORK DEVELOPMENT PLAN CREATION AND
	APPROVAL.  (a)  A local mental health authority shall develop a
	local network development plan regarding the configuration and
	development of the local mental health authority's provider
	network. The plan must reflect local needs and priorities and
	maximize consumer choice and access to qualified service providers.
	(b)  The local mental health authority shall submit the local
	network development plan to the Department of State Health Services
	for approval.
	(c)  On receipt of a local network development plan under
	this section, the department shall review the plan to ensure that
	the plan:
	(1)  complies with the criteria established by Section
	533.0358 if the local mental health authority is providing services
	under that section; and
	(2)  indicates that the local mental health authority
	is reasonably attempting to solicit the development of a provider
	base that is:
	(A)  available and appropriate; and
	(B)  sufficient to meet the needs of consumers in
	the local authority's local service area.
	(d)  If the department determines that the local network
	development plan complies with Subsection (c), the department shall
	approve the plan.
	(e)  At least biennially, the department shall review a local
	mental health authority's local network development plan and
	determine whether the plan complies with Subsection (c).
	SECTION 5.  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 the following local
	mental retardation authority responsibilities:
	(1)  access;
	(2)  intake;
	(3)  eligibility functions;
	(4)  enrollment, initial person-centered 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), a
	local mental retardation authority must offer a state school as an
	option among the residential services and other community living
	options 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.
	(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
	shall require the local mental retardation authority to:
	(1)  base the local authority's provider capacity on
	the local authority's August 2004 enrollment levels for the waiver
	programs the local authority operates and, if the local authority's
	enrollment levels exceed those levels, to reduce the levels by
	voluntary attrition; and
	(2)  base any increase in the local authority's
	provider capacity on:
	(A)  the local authority's state-mandated
	conversion from an ICF-MR program to a Section 1915(c) waiver
	program allowing for a permanent increase in the local authority's
	provider capacity in accordance with the number of persons who
	choose the local authority as their provider;
	(B)  the local authority's voluntary conversion
	from an ICF-MR program to a Section 1915(c) waiver program allowing
	for a temporary increase in the local authority's provider capacity
	in accordance with the number of persons who choose the local
	authority as their provider;
	(C)  the local authority's refinancing from
	services funded solely by state general revenue to a Medicaid
	program allowing for a temporary increase in the local authority's
	provider capacity in accordance with the number of persons who
	choose the local authority as their provider; or
	(D)  other extenuating circumstances that:
	(i)  are monitored and approved by the
	department;
	(ii)  do not include increases that
	unnecessarily promote the local authority's provider role over its
	role as a local mental retardation authority; and
	(iii)  may include increases necessary to
	accomodate a family-specific or consumer-specific circumstance and
	choice [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.
	[(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].
	(e)  Any increase based on extenuating circumstances under
	Subsection (d)(2)(D) is considered a temporary increase in the
	local mental retardation authority's provider capacity [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].
	(f)  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 local 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 local authority
	is located [The department shall perform any function relating to
	inventory for persons who receive services under the waiver program
	and agency planning assessments].
	(g)  The Department of Aging and Disability Services shall
	ensure that local services delivered further the following goals:
	(1)  to provide individuals with the information,
	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 initiatives and permanency planning
	laws. [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 6.  Subchapter B, Chapter 533, Health and Safety
	Code, is amended by adding Sections 533.0357, 533.0358, and
	533.0359 to read as follows:
	Sec. 533.0357.  BEST PRACTICES CLEARINGHOUSE FOR LOCAL
	MENTAL HEALTH AUTHORITIES. (a) In coordination with local mental
	health authorities, the department shall establish an online
	clearinghouse of information relating to best practices of local
	mental health authorities regarding the provision of mental health
	services, development of a local provider network, and achievement
	of the best return on public investment in mental health services.
	(b)  The department shall solicit and collect from local
	mental health authorities that meet established outcome and
	performance measures, community centers, consumers and advocates
	with expertise in mental health or in the provision of mental health
	services, and other local entities concerned with mental health
	issues examples of best practices related to:
	(1)  developing and implementing a local network
	development plan;
	(2)  assembling and expanding a local provider network
	to increase consumer choice;
	(3)  creating and enforcing performance standards for
	providers;
	(4)  managing limited resources;
	(5)  maximizing available funding;
	(6)  producing the best client outcomes;
	(7)  ensuring consumers of mental health services have
	control over decisions regarding their health;
	(8)  developing procurement processes to protect
	public funds;
	(9)  achieving the best mental health consumer outcomes
	possible; and
	(10)  implementing strategies that effectively
	incorporate consumer and family involvement to develop and evaluate
	the provider network.
	(c)  The department may contract for the services of one or
	more contractors to develop, implement, and maintain a system of
	collecting and evaluating the best practices of local mental health
	authorities as provided by this section.
	(d)  The department shall encourage local mental health
	authorities that successfully implement best practices in
	accordance with this section to mentor local mental health
	authorities that have service deficiencies.
	(e)  Before the executive commissioner may remove a local
	mental health authority's designation under Section 533.035(a) as a
	local mental health authority, the executive commissioner shall:
	(1)  assist the local mental health authority in
	attaining training and mentorship in using the best practices
	established in accordance with this section; and
	(2)  track and document the local mental health
	authority's improvements in the provision of service or continued
	service deficiencies.
	(f)  Subsection (e) does not apply to the removal of a local
	mental health authority's designation initiated at the request of a
	local government official who has responsibility for the provision
	of mental health services.
	(g)  The department shall implement this section using only
	existing resources.
	Sec. 533.0358.  LOCAL MENTAL HEALTH AUTHORITY'S PROVISION OF
	SERVICES AS PROVIDER OF LAST RESORT.  (a) A local mental health
	authority may serve as a provider of services under Section
	533.035(e) only if, through the local network development plan
	process, the local authority determines that at least one of the
	following applies:
	(1)  interested qualified service providers are not
	available to provide services or no service provider meets the
	local authority's procurement requirements;
	(2)  the local authority's network of providers does
	not provide a minimum level of consumer choice by:
	(A)  presenting consumers with two or more
	qualified service providers in the local authority's network for
	service packages; and
	(B)  presenting consumers with two or more
	qualified service providers in the local authority's network for
	specific services within a service package;
	(3)  the local authority's provider network does not
	provide consumers in the local service area with access to services
	at least equal to the level of access provided as of a date the
	executive commissioner specifies;
	(4)  the combined volume of services delivered by
	qualified service providers in the local network does not meet all
	of the local authority's service capacity for each service package
	identified in the local network development plan;
	(5)  the performance of the services by the local
	authority is necessary to preserve critical infrastructure and
	ensure continuous provision of services; or
	(6)  existing contracts or other agreements restrict
	the local authority from contracting with qualified service
	providers for services in the local network development plan.
	(b)  If a local mental health authority continues to provide
	services in accordance with this section, the local authority shall
	identify in the local authority's local network development plan:
	(1)  the proportion of its local network services that
	the local authority will provide; and
	(2)  the local authority's basis for its determination
	that the local authority must continue to provide services.
	Sec. 533.0359.  RULEMAKING FOR LOCAL MENTAL HEALTH
	AUTHORITIES. In developing rules governing local mental health
	authorities under Sections 533.035, 533.0351, 533.03521, 533.0357,
	and 533.0358, the executive commissioner shall use negotiated
	rulemaking procedures under Chapter 2008, Government Code, or other
	collaborative processes, as appropriate, and appoint facilitators
	to preside over the process. The rulemaking process must include
	representatives of local mental health authorities, local
	government and community mental health service providers,
	advocates for individuals with mental health needs, consumers of
	mental health services, and any other individuals with expertise in
	the field of mental health that the executive commissioner
	appoints.
	SECTION 7.  Sections 533.035(f) and (g), Health and Safety
	Code, are repealed.
	SECTION 8.  If before implementing any provision of this Act
	a state agency determines that a waiver or authorization from a
	federal agency is necessary for implementation of that provision,
	the agency affected by the provision shall request the waiver or
	authorization and may delay implementing that provision until the
	waiver or authorization is granted.
	SECTION 9.  Not later than January 1, 2008, the Health and
	Human Services Commission shall submit a report to the governor,
	the lieutenant governor, and the speaker of the house of
	representatives that includes:
	(1)  whether a waiver from a federal agency is
	necessary for implementation of any provision of this Act and, if a
	waiver is necessary, the date the commission applied for that
	waiver or will apply for the waiver; and
	(2)  any other information the commission finds
	relevant regarding the implementation of Sections 533.035,
	533.0351, 533.03521, 533.0355, 533.0357, and 533.0358, Health and
	Safety Code, as amended or added by this Act, by local mental health
	and mental retardation authorities.
	SECTION 10.  Not later than November 1, 2007, the executive
	commissioner of the Health and Human Services Commission shall
	re-create and appoint the members of the local authority network
	advisory committee under Section 533.0351, Health and Safety Code,
	as amended by this Act.
	SECTION 11.  This Act takes effect immediately if it
	receives a vote of two-thirds of all the members elected to each
	house, as provided by Section 39, Article III, Texas Constitution.
	If this Act does not receive the vote necessary for immediate
	effect, this Act takes effect September 1, 2007.