TITLE 26. HEALTH AND HUMAN SERVICES

PART 1. HEALTH AND HUMAN SERVICES COMMISSION

CHAPTER 306. BEHAVIORAL HEALTH DELIVERY SYSTEM

SUBCHAPTER D. MENTAL HEALTH SERVICES--ADMISSION, CONTINUITY, AND DISCHARGE

The Texas Health and Human Services Commission (HHSC) adopts new Chapter 306, Subchapter D, concerning Mental Health Services--Admission, Continuity, and Discharge, comprising §§306.151 - 306.154, 306.161 - 306.163, 306.171 - 306.178, 306.191 - 306.195, 306.201 - 306.207, and 306.221 in the Texas Administrative Code (TAC), Title 26, Part 1. Sections 306.153, 306.161 - 306.163, 306.171 - 306.178, 306.191, 306.194, 306.195, 306.201 - 306.207 and 306.221 are adopted with changes to the proposed text as published in the November 29, 2019, issue of the Texas Register (44 TexReg 7319). These sections will be republished.

Sections 306.151, 306.152, 306.154, 306.192, and 306.193 are adopted without changes to the proposed text as published in the November 29, 2019, issue of the Texas Register (44 TexReg 7319), and therefore will not be republished.

BACKGROUND AND JUSTIFICATION

As required by Texas Government Code §531.0201(a)(2)(C), client services functions previously performed by the Department of State Health Services (DSHS) were transferred to the HHSC on September 1, 2016, in accordance with Texas Government Code §531.0201 and §531.02011. The new rules in Title 26, Chapter 306 address the content of rules in Title 25, Chapter 412, Subchapter D, concerning Mental Health Services--Admission, Continuity, and Discharge. The rules in Chapter 412 are repealed elsewhere in this issue of the Texas Register.

The rules establish guidelines for admission, transfers, and discharges from state hospitals, local mental health authorities (LMHAs) and local behavioral health authorities (LBHAs), and continuity of services for persons receiving LMHA or LBHA services and inpatient services at a state mental health facility (SMHF) or a facility with a contracted psychiatric bed (CPB). The rules also implement certain provisions in Senate Bill (S.B.) 562, S.B. 1238, and House Bill 601, 86th Legislature, Regular Session, 2019, that relate to voluntary admission requirements and admission criteria for maximum security units.

COMMENTS

The 31-day comment period ended December 30, 2019. During this period, HHSC received comments regarding the proposed rules from one commenter, Disability Rights Texas. A summary of comments relating to the new Chapter 306, Subchapter D, concerning Mental Health Services--Admission, Continuity, and Discharge and HHSC responses follows.

Comment: The commenter expressed general concerns that the rules may not be written in language easily understood and suggested that HHSC did not offer an informal comment period.

Response: HHSC disagrees and declines to revise the rules in response to this comment. The rules were carefully considered and discussed. The informal comment period occurred in June 2016. Based on the feedback received from the informal comment period, HHSC met with external stakeholders in the development of these rules over the past four years.

Comment: The commenter suggested changes to three definitions under §306.153. The commenter suggested adding a reference to the Civil Practice and Remedies Code, Chapter 137, to the definition of advance directive in §306.153(5); suggested adding coordination with a person who provides support to an individual in the definition of continuity of care in §306.153(14); and suggested adding language to include information about the individuals psychiatric, social history, symptomology or support system to the definition of intake assessment in 306.153(36).

Response: HHSC agrees and made the suggested changes in response to the commenter's feedback.

Comment: The commenter recommended clarifying the term "alternate services" in §306.171(d)(2) as it does not refer to services for an emergency medical condition.

Response: HHSC agrees with the commenter and clarified that the facility must coordinate alternate outpatient community services with an LMHA or LBHA. Editorial changes were made by moving §306.171(d)(1) to §306.171(c)(2) and combining §306.171(d)(2) with §306.171(d). The changes were made to increase understanding and to reflect the process a facility must follow if an individual arrives at the facility with an emergency medical condition.

Comment: The commenter recommended adding language to §306.174(b) to delineate the minimum age of an individual that may be admitted into the Waco Center for Youth and recommended considering another setting or program in the discharge planning process under §306.174(d).

Response: HHSC agrees with the commenter and incorporated both recommendations as suggested. Section 306.174(b) was revised to clarify that a child under 10 years of age may not be admitted to the Waco Center for Youth. HHSC additionally made changes to include a child in §306.174(a), (c), and (d) and made grammatical changes accordingly. HHSC also added language to allow another setting or program in the discharge planning process, in addition to a psychiatric hospital.

Comment: The commenter had several suggestions to the rules in §306.175. The commenter recommended establishing a time frame in which services would be made available to an individual who does not meet admission criteria in §306.175(b) and recommended establishing a time frame in which the physical and psychiatric examinations and determination occur in §306.175(c)(2). The commenter also recommended adding information about psychiatric, social history, support system or symptomology in the intake assessment under §306.175(g). Additionally, the commenter recommended adding language requiring documentation of the justification for continued inpatient care in §306.175(j). The commenter also inquired about the rationale for changing the evaluation from three times a week to once a week in §306.175(j).

Response: HHSC agrees with the commenter and established time frames as suggested. The rules were revised to require an LMHA or LBHA to notify the individual or their support system that an individual failed to meet admission criteria within 24 hours. The rules were revised to require a physician to conduct an examination of an individual requesting voluntary admission within 72 hours before or 24 hours after voluntary admission. The revision to §306.175(g) was added as suggested and additional revisions were made to §§306.176(e) and 306.177(c) for consistency. The revision to §306.175(j) regarding documented justification for continued stay for an individual voluntarily receiving acute inpatient treatment was added as suggested. Regarding the commenters inquiry, HHSC determined that the frequency of the evaluation, as written, is appropriate for individuals that are voluntarily admitted.

Comment: The commenter stated that coordinating alternate services as clinically indicated fails to ensure the provision of assessment for services if the person is seeking services in §306.176(d)(2) and recommended adding language in §306.176(d)(3) to notify persons who provide support other than family when an individual is released from a facility.

Response: HHSC agrees with the commenter. The rules were revised to require an LMHA or LBHA to coordinate alternate outpatient community services for an individual within a specified time frame.

Comment: The commenter recommended adding language indicating that the SMHF or facility with a CPB is responsible for contacting the LMHA or LBHA and suggested clarifying the time frame the contact must occur in §306.177(c)(4).

Response: HHSC declines to modify the rule in response to this comment. The recommendation does not apply to this section.

Comment: The commenter suggested a couple of recommendations to §306.191. A suggestion was made to consider the geographical proximity of any persons the individual indicates during a transfer between state mental health facilities in §306.191(b)(4). The commenter questioned if an LMHA could provide input to deny a transfer and suggested clarifying the type of input that is sought from an LMHA in §306.191(b)(5).

Response: HHSC agrees with the commenter and revised §306.191(b)(4) as suggested. HHSC deleted §306.191(b)(5) because this subsection pertains to transfers between state mental health facilities and does not apply to LMHAs or LBHAs.

Comment: The commenter expressed general concerns regarding continuity of services and undefined terms used in §306.195. The commenter recommended: retaining the term "originating" instead of "designated" LMHA in §306.195(a)(1); clarifying the term "open access process" and requiring LMHAs to initiate an appointment for an individual seeking services in §306.195(a)(1)(B)(i); clarifying the term "access information" in §306.195(a)(1)(C) and "open access procedures" in §306.195(a)(1)(D) and suggested requiring an LMHA to secure the appointment for an individual instead of providing information; adding language to ensure continuation of services by providing pertinent information to the receiving LMHA or LBHA prior to the individual's transfer in §306.195(a)(1)(E); and providing a time frame within which the notification of the denial, reduction or termination of services and the right to appeal occurs in §306.195(a)(3). The commenter also stated that §306.195(a)(1)(H) contradicts statements made repeatedly by HHSC that there is no waiting list for services.

Response: HHSC agrees with the commenter as to the term "designated" and retained the term "originating" LMHA or LBHA. HHSC deleted the term "open access processes" and revised language to clarify that the LMHA or LBHA must educate an individual by providing information regarding walk-in intake services, if applicable. HHSC deleted the requirement regarding access information and renumbered the subparagraphs. HHSC revised language to require the originating LMHA or LBHA to submit pertinent information to the receiving LMHA or LBHA after the individual's transfer request to ensure continuity of care. HHSC revised rules to require the new LMHA or LBHA to notify the individual or LAR in writing of the termination, suspension, or reduction of services within ten business days. HHSC declines to modify rules in response to the comment about the waiting list for services. Community-based services are provided based on the availability of the provider's capacity to serve individuals, except for those individuals that have Medicaid. Grammatical changes were made accordingly.

Comment: The commenter made several suggestions to the discharge planning rules in §306.201. The commenter recommended: adding a time frame for a facility to notify persons involved in discharge planning of scheduled staffings and reviews in §306.201(b)(2); revisiting language that requires an LMHA to identify available living arrangements to consider expectations that would diminish the likelihood of readmission in §306.201(c)(3); deleting "recommended" living arrangements and replacing it with "preferred" living arrangements in §306.201(d)(1)(A); requiring facilities to notify other persons, as requested by the individual, of a discharge in §306.201(e)(2); considering the Health Insurance Portability and Accountability Act, which states that records can only be omitted under certain circumstances and may conflict with language in §306.201(h)(2); clarifying that the facility must send a copy of the discharge packet to a county jail, if the county jail has facilitated needed services through another entity in §306.201(h)(3)(B)(iii); requiring a description of the frequency and intensity of the services in the written discharge summary in §306.201(k)(3)(B); and suggested adding language to require a facility to provide information about the resolution of the apparent conflict when caregivers refuse to participate in discharge planning in §306.201(k)(5).

Response: HHSC agrees with the commenter and revised §306.201(b)(2), §306.201(e)(2), §306.201(h)(2), and §306.201(h)(3)(B)(iii) as suggested. HHSC deleted the word "recommended" in §306.201(d)(1)(A), however it was not replaced with "preferred" as suggested since the rule already speaks to individual preferences. HHSC declines to modify the rule in response to §306.201(c)(3) implying the inclusion of a temporary shelter as a living arrangement. The language, as written, places the responsibility on the LMHA or LBHA to identify living arrangements consistent with the individual's clinical needs and preference. HHSC agrees with the commenter suggested edit to §306.201(k)(3)(B) and incorporated the suggestion in the discharge summary by adding the requirement of describing the level of care for services received. HHSC declines to modify the rule in response to requiring information about the resolution of an individual's refusal to participate in discharge planning in §306.201(k)(5). There is no resolution to a refusal to participate in discharge planning, only documentation of the refusal.

Comment: The commenter also made a few recommendations to §306.202, Special Considerations for Discharge Planning. The commenter recommended that the discharge planning review in §306.202(a)(1) focus on how effective the services have been in preventing an unnecessary hospitalization and recommended retaining the term, "effectiveness" instead of "best use of clinical services." The commenter also suggested that the LMHA should determine the type, amount, scope and duration of the services needed to prevent unnecessary admissions in §306.202(a)(3).

Response: HHSC agrees with the commenter and revised the rule as suggested.

Comment: The commenter recommended a change to §306.203(c)(1) to require the SMHF or facility with a CPB to "immediately" assist an individual in creating a written request to leave the SMHF or facility with a CPB rather than assisting the individual "as soon as possible."

Response: HHSC declines to modify the rule in response to this comment because the proposed language reflects the language of the statute at Section 572.004(a) of the Health and Safety Code, which requires the patient be assisted with the written request "as soon as possible."

Comment: The commenter stated that the language in §306.205(b)(3) regarding the deterioration of the individual's condition is vague and recommended retaining the original rule language.

Response: HHSC agrees with the commenter and revised the rule as suggested.

Comment: The commenter recommended establishing a reasonable time frame within which the services are available in §306.207(a)(1)(B)(ii). The commenter also recommended including information about the attempts made to locate and contact the individual who fails to appear for a face-to-face contact in §306.207(a)(1)(D).

Response: HHSC agrees with the commenter and incorporated the recommendation by adding "as determined by the individual's level of care," which describes the frequency of services, in §306.207(1)(B)(ii). HHSC revised §306.207(1)(D) as suggested.

HHSC made grammatical changes to the definition of LIDDA in §306.153(39); minor in §306.153(47); ombudsman in §306.153(50); and recovery or treatment plan in §306.153(59).

HHSC made minor editorial changes to certain definitions in §§306.153(6), 306.153(14)(E), 306.153(27), 306.153(37), 306.153(38), 306.153(40), 306.153(62), and 306.153(63) for accuracy, understanding, and consistency.

HHSC replaced the proposed definition of mental illness in §306.153(45) with the definition of mental illness in Chapter 307 that includes "developmental disability" because the proposed definition was too broad. HHSC also replaced the proposed definition of peer specialist in §306.153(54) with the definition in 1 TAC Chapter 354, Subchapter N (relating to Peer Specialist Services) for accuracy and consistency.

Minor grammatical changes were made to §§306.163(b)(2) and (b)(6), 306.171(a), 306.172(1), 306.174(d), 306.175(a)(1)(C), and 306.202(a)(2)(A) for accuracy, understanding, and consistency. Minor editorial changes were made to §§306.153(24), 306.153(26), 306.153(68), 306.161(c)(1) and (d)(2), §306.162(d), 306.163(b)(7),(c)(1) and (f)(2), 306.173(a)(1), 306.175(e), 306.176(b)(2), 306.178, 306.191, 306.194, 306.201(c)(3), 306.201(d)(1)(E) and (d)(1)(I)(ii), 306.201(e)(1), and 306.207(1)(B)(iii).

Minor editorial changes were made to incorporate people first language in §§306.153(33), 306.153(34), 306.178, 306.191(c), 306.194(a), 306.203(a) and (b), 306.203(e)(1)(A), 306.205(a), and 306.206(a). Sections 306.203 and 306.204 were renamed to reflect people first language.

Minor editorial changes were made to update cross references to 25 TAC Chapter 412, Subchapter G that was administratively transferred to 26 TAC Chapter 301, Subchapter G in the following sections: §§306.153(57); 306.153(59)(A); 306.153(69); 306.161(a), (d), and (d)(3); 306.195(a)(1)(G) and (a)(2)(A)(iii); 306.202(g)(1)(B)(i) and (g)(2)(B)(i); 306.207(1)(C); and 306.221(b)(1). Cross references were also updated in §§306.153(35), 306.201(c)(7), and 306.202(b)(2) and (b)(3).

DIVISION 1. GENERAL PROVISIONS

26 TAC §§306.151 - 306.154

STATUTORY AUTHORITY

The new sections are adopted under Texas Government Code §531.0055, which provides that the Executive Commissioner of HHSC shall adopt rules for the operation and provision of services by the health and human services agencies. In addition, Texas Health and Safety Code §534.053 requires the Executive Commissioner of HHSC to adopt rules ensuring the provision of community-based mental health services and §534.058 authorizes the Executive Commissioner to develop standards of care for services provided by LMHAs and their subcontractors.

The new sections implement Texas Government Code §531.0055 and Texas Health and Safety Code §534.053 and §534.058.

§306.153.Definitions.

The following words and terms, when used in this subchapter, have the following meanings unless the context clearly indicates otherwise.

(1) Absence--When an individual, previously admitted to an SMHF and not discharged from the SMHF, is physically away from the SMHF for any reason, including hospitalization, home visit, special activity, unauthorized departure, or absence for trial placement.

(2) Admission--

(A) An individual's acceptance to an SMHF's custody or a facility with a CPB for inpatient services, based on:

(i) a physician's order issued in accordance with §306.175(h)(2)(C) of this subchapter (relating to Voluntary Admission Criteria for a Facility with a Contracted Psychiatric Bed Authorized by an LMHA or LBHA or for a State Mental Health Facility);

(ii) a physician's order issued in accordance with §306.176(c)(3) of this subchapter (relating to Admission Criteria for a Facility with a Contracted Psychiatric Bed Authorized by an LMHA or LBHA or for a State Mental Health Facility for Emergency Detention);

(iii) a court's order of protective custody issued in accordance with Texas Health and Safety Code §574.022;

(iv) a court's order for temporary inpatient mental health services issued in accordance with Texas Health and Safety Code §574.034, or Texas Family Code Chapter 55;

(v) a court's order for extended inpatient mental health services issued in accordance with Texas Health and Safety Code §574.035, or Texas Family Code Chapter 55; or

(vi) a court's order for commitment issued in accordance with the Texas Code of Criminal Procedure, Chapter 46B or Chapter 46C.

(B) The acceptance of an individual in the mental health priority population into LMHA or LBHA services.

(3) Adolescent--An individual at least 13 years of age, but younger than 18 years of age.

(4) Adult--An individual at least 18 years of age or older.

(5) Advance directive--As used in this subchapter, includes:

(A) an instruction made under Texas Health and Safety Code §§166.032, 166.034 or 166.035 to administer, withhold, or withdraw life-sustaining treatment in the event of a terminal or irreversible condition;

(B) an out-of-hospital DNR order, as defined by Texas Health and Safety Code §166.081;

(C) a medical power of attorney under Texas Health and Safety Code, Chapter 166, Subchapter D; or

(D) a declaration for mental health treatment for preferences or instructions regarding mental health treatment in accordance with Civil Practice and Remedies Code Chapter 137.

(6) Alternate provider--An entity that provides mental health services or substance use disorder treatment services in the community but not pursuant to a contract or memorandum of understanding with an LMHA or LBHA.

(7) APRN--Advanced practice registered nurse. A registered nurse licensed by the Texas Board of Nursing to practice as an advanced practice registered nurse as provided by Texas Occupations Code §301.152.

(8) Assessment--The administrative process an SMHF or a facility with a CPB uses to gather information from a prospective patient, including a medical history and the problem for which the prospective patient is seeking treatment, to determine whether a prospective patient should be examined by a physician to determine if admission is clinically justified, as defined by Texas Health and Safety Code §572.0025(h)(2).

(9) Assessment professional--In accordance with Texas Health and Safety Code §572.0025(c)-(d), a staff member of an SMHF or facility with a CPB whose responsibilities include conducting the intake assessment described in §306.175(g) and §306.176(e) of this subchapter, and who is:

(A) a physician licensed to practice medicine under Texas Occupations Code, Chapter 155;

(B) a physician assistant licensed under Texas Occupations Code, Chapter 204;

(C) an APRN licensed under Texas Occupations Code, Chapter 301;

(D) a registered nurse licensed under Texas Occupations Code, Chapter 301;

(E) a psychologist licensed under Texas Occupations Code, Chapter 501;

(F) a psychological associate licensed under Texas Occupations Code, Chapter 501;

(G) a licensed professional counselor licensed under Texas Occupations Code, Chapter 503;

(H) a licensed social worker licensed under Texas Occupations Code, Chapter 505; or

(I) a licensed marriage and family therapist licensed under Texas Occupations Code, Chapter 502.

(10) ATP--Absence for trial placement. When an individual, currently admitted to an SMHF, is physically away from the SMHF for the SMHF to evaluate the individual's adjustment to a particular living arrangement before the individual's discharge and as a potential residence following discharge. An ATP is a type of furlough, as referenced in Texas Health and Safety Code, Chapter 574, Subchapter F.

(11) Business day--Any day except a Saturday, Sunday, or legal holiday listed in Texas Government Code §662.021.

(12) Capacity--An individual's ability to understand and appreciate the nature and consequences of a decision regarding the individual's medical treatment, and the ability of the individual to reach an informed decision in the matter.

(13) Child--An individual at least three years of age, but younger than 13 years of age.

(14) Continuity of care--Activities designed to ensure an individual is provided uninterrupted services during a transition between inpatient and outpatient services and that assist the individual and the individual's LAR in identifying, accessing, and coordinating LMHA or LBHA services and other appropriate services and supports in the community needed by the individual, including:

(A) assisting with admissions and discharges;

(B) facilitating access to appropriate services and supports in the community, including identifying and connecting the individual with community resources, and coordinating the provision of services;

(C) participating in developing and reviewing the individual's recovery or treatment plan;

(D) promoting implementation of the individual's recovery or treatment plan; and

(E) coordinating notification of continuity of care services between the individual and the individual's family and any other person providing support as authorized by the individual, and LAR, if any.

(15) Continuity of care worker--An LMHA, LBHA, or LIDDA staff member responsible for providing continuity of care services. The staff member may collaborate with a peer specialist, recovery specialist, or family partner to provide continuity of services.

(16) COPSD--Co-occurring psychiatric and substance use disorder.

(17) COPSD model--An application of evidence-based practices for an individual diagnosed with co-occurring conditions of mental illness and substance use disorder.

(18) CPB--Contracted psychiatric bed. A state-funded contracted psychiatric bed that:

(A) is authorized by an LMHA or LBHA; and

(B) is used for inpatient care in the community, and this does not include a crisis respite unit, crisis residential unit, an extended observation unit, or a crisis stabilization unit.

(19) CRCG--Community Resource Coordination Group. A local interagency group comprised of public and private providers who collaborate to develop individualized service plans for individuals whose needs may be met through interagency coordination and cooperation. CRCGs are established and operate in accordance with a Memorandum of Understanding on Services for Persons Needing Multiagency Services, required by Texas Government Code §531.055.

(20) Crisis--A situation in which:

(A) an individual presents an immediate danger to self or others;

(B) an individual's mental or physical health is at risk of serious deterioration; or

(C) an individual believes he presents an immediate danger to self or others, or the individual's mental or physical health is at risk of serious deterioration.

(21) Crisis treatment alternatives--Community-based facilities or units providing short-term, residential crisis treatment to ameliorate a behavioral health crisis in the least restrictive environment, including crisis stabilization units, extended observation units, crisis residential units, and crisis respite units. The intensity and scope of services varies by facility type and is available in a local service area based upon the local needs and characteristics of the community.

(22) Day--Calendar day.

(23) DD--Developmental disability. As listed in the Texas Health and Safety Code §531.002, an individual with a severe, chronic disability attributable to a mental or physical impairment or a combination of mental and physical impairments that:

(A) manifests before the person reaches 22 years of age;

(B) is likely to continue indefinitely;

(C) reflects the individual's need for a combination and sequence of special, interdisciplinary, or generic services, individualized supports, or other forms of assistance that are of a lifelong or extended duration and are individually planned and coordinated; and

(D) results in substantial functional limitations in three or more of the following categories of major life activity:

(i) self-care;

(ii) receptive and expressive language;

(iii) learning;

(iv) mobility;

(v) self-direction;

(vi) capacity for independent living; and

(vii) economic self-sufficiency.

(24) Designated LMHA or LBHA--The LMHA or LBHA:

(A) that serves the individual's county of residence, which is determined in accordance with §306.162 of this subchapter (relating to Determining County of Residence); or

(B) that does not serve the individual's county of residence but has taken responsibility for ensuring the individual's LMHA or LBHA services.

(25) Discharge--

(A) From an SMHF or a facility with a CPB: The release of an individual from the custody and care of a provider of inpatient services.

(B) From LMHA or LBHA services: The termination of LMHA or LBHA services delivered to an individual by an LMHA or LBHA.

(26) Discharged unexpectedly--A discharge from an SMHF or facility with a CPB:

(A) due to an individual's unauthorized departure;

(B) at the individual's request;

(C) due to a court releasing the individual;

(D) due to the death of the individual; or

(E) due to the execution of an arrest warrant for the individual.

(27) Emergency medical condition--A medical condition manifesting itself by acute symptoms of sufficient severity (including severe pain, psychiatric disturbances, or symptoms of substance use disorder) such that the absence of immediate medical attention could reasonably result in:

(A) placing the health of the individual (or with respect to a pregnant woman, the health of the woman or her unborn child) or others in serious jeopardy;

(B) serious impairment to bodily functions;

(C) serious dysfunction of any bodily organ or part;

(D) serious disfigurement; or

(E) in the case of a pregnant woman having contractions:

(i) inadequate time to affect a safe transfer to another hospital before delivery; or

(ii) a transfer posing a threat to the health and safety of the woman or the unborn child.

(28) Face-to-face--A form of contact occurring in person or through the use of audiovisual or other telecommunications technology.

(29) Facility--A care facility including a state mental health facility, private psychiatric hospital, medical hospital, and community setting, but does not include a nursing facility or an assisted living facility.

(30) HHSC--Texas Health and Human Services Commission or its designee.

(31) ID--Intellectual disability. Consistent with Texas Health and Safety Code §591.003, significantly sub-average general intellectual functioning existing concurrently with deficits in adaptive behavior and originating before age 18.

(32) Individual--A person seeking or receiving services under this subchapter.

(33) Individual involuntarily receiving treatment--An individual receiving inpatient services based on an admission to a state mental health facility or a facility with a CPB made in accordance with:

(A) §306.176 of this subchapter;

(B) §306.177 of this subchapter (relating to Admission Criteria Under Order of Protective Custody or Court-ordered Inpatient Mental Health Services);

(C) an order for temporary inpatient mental health services issued in accordance with Texas Health and Safety Code §574.034 or Texas Family Code, Chapter 55;

(D) an order for extended inpatient mental health services issued in accordance with Texas Health and Safety Code §574.035 or Texas Family Code, Chapter 55;

(E) an order for commitment issued in accordance with Texas Code of Criminal Procedure, Chapter 46B; or

(F) an order for commitment issued in accordance with Texas Code of Criminal Procedure, Chapter 46C.

(34) Individual voluntarily receiving treatment--An individual receiving inpatient services based on an admission made in accordance with:

(A) §306.175 of this subchapter; or

(B) §306.178 of this subchapter (relating to Voluntary Treatment Following Involuntary Admission).

(35) Inpatient services--Residential psychiatric treatment provided to an individual in an SMHF, a facility with a CPB, a hospital licensed under the Texas Health and Safety Code, Chapter 241 or Chapter 577, or a CSU licensed under Chapter 510 of this title (relating to Private Psychiatric Hospitals and Crisis Stabilization Units).

(36) Intake assessment--The administrative process conducted by an assessment professional for gathering information about a prospective patient including the psychiatric and medical history, social history, symptomology and support system and giving a prospective patient information about the facility and the facility's treatment and services.

(37) LAR--Legally authorized representative. A person authorized by state law to act on behalf of an individual for the purposes of:

(A) admission, transfer or discharge that includes:

(i) a parent, non-Department of Family and Protective Services managing conservator or guardian of a minor;

(ii) a Department of Family and Protective Service managing conservator of a minor acting pursuant to Texas Health and Safety Code §572.001 (c-2) - (c-4); and

(iii) a person eligible to consent to treatment for a minor under §32.001(a), Texas Family Code, or a person who may request from a district court authorization under Texas Family Code, Chapter 35 for the temporary admission of a minor.

(B) consent on behalf of an individual with regard to a matter described in this subchapter other than admission, transfer or discharge includes:

(i) persons described by subparagraph (A) of this paragraph; and

(ii) an agent acting under a Medical Power of Attorney under Texas Health and Safety Code, Chapter 166 or a Declaration for Mental Health Treatment under Texas Civil Practice and Remedies Code, Chapter 137.

(38) LBHA--Local behavioral health authority. An entity designated as an LBHA by HHSC in accordance with Texas Health and Safety Code §533.0356.

(39) LIDDA--Local intellectual and developmental disability authority. An entity designated by HHSC in accordance with Texas Health and Safety Code §533A.035.

(40) LMHA--Local mental health authority. An entity designated as an LMHA by HHSC in accordance with Texas Health and Safety Code §533.035(a).

(41) LMHA or LBHA network provider--An entity that provides mental health services in the community pursuant to a contract or memorandum of understanding with an LMHA or LBHA, including that part of an LMHA or LBHA directly providing mental health services.

(42) LMHA or LBHA services--Inpatient and outpatient mental health services provided by an LMHA or LBHA network provider to an individual in the individual's home community.

(43) Local service area--A geographic area composed of one or more Texas counties defining the population that may receive services from an LMHA or LBHA.

(44) MCO--Managed care organization. An entity governed by Chapter 843 of the Texas Insurance Code to operate as a health maintenance organization or to issue a private provider benefit plan.

(45) Mental illness--An illness, disease, or condition, other than a sole diagnosis of epilepsy, dementia, substance use disorder, ID, or DD that:

(A) substantially impairs an individual's thought, perception of reality, emotional process, or judgment; or

(B) grossly impairs behavior as demonstrated by recent disturbed behavior.

(46) MH priority population--Mental health priority population. As identified in state performance contracts with LMHAs or LBHAs, those groups of children, adolescents, and adults with mental illness or serious emotional disturbance assessed as most in need of mental health services.

(47) Minor--An individual younger than 18 years of age.

(48) Nursing facility--A long-term care facility licensed by HHSC as a nursing home, nursing facility, or skilled nursing facility as defined in Texas Health and Safety Code, Chapter 242.

(49) Offender with special needs--An individual who has a terminal or serious medical condition, a mental illness, an ID, a DD, or a physical disability, and is served by the Texas Correctional Office on Offenders with Medical or Mental Impairments as provided in Texas Health and Safety Code, Chapter 614.

(50) Ombudsman--The Ombudsman for Behavioral Health Access to Care established by Texas Government Code §531.02251, which serves as a neutral party to help individuals, including individuals who are uninsured or have public or private health benefit coverage. The behavioral health care providers navigate and resolve issues related to the individual's access to behavioral health care, including care for mental health conditions and substance use disorders.

(51) PASRR--Preadmission screening and resident review in accordance with 40 TAC Chapter 19, Subchapter BB (relating to Nursing Facility Responsibilities Related to Preadmission Screening and Resident Review (PASRR)).

(52) PASRR Level I screening--The process of screening an individual to identify whether the individual is suspected of having a mental illness, ID, or DD.

(53) PASRR Level II evaluation--A face-to-face evaluation of an individual suspected of having a mental illness, ID, or DD performed by a LIDDA, LMHA, or LBHA to determine if the individual has a mental illness, ID, or DD, and if so, to:

(A) assess the individual's need for care in a nursing facility;

(B) assess the individual's need for nursing facility specialized services, LIDDA specialized services, and LMHA or LBHA specialized services; and

(C) identify alternate placement options.

(54) Peer specialist--A person who uses lived experience in addition to skills learned in formal training, to deliver strengths-based, person-centered services to promote an individual's recovery and resiliency in accordance with 1 TAC Chapter 354, Subchapter N.

(55) Permanent residence--The physical location where an individual lives, or if a minor, where the minor's parents or legal guardian lives. A post office box is not a permanent residence.

(56) Preliminary examination--An assessment for medical stability and a psychiatric examination in accordance with Texas Health and Safety Code §573.022(a)(2).

(57) QMHP-CS--Qualified mental health professional-community services. A staff member who meets the requirements and performs the functions described in Chapter 301, Subchapter G of this title (relating to Mental Health Community Services Standards).

(58) Recovery--A process of change through which individuals improve their health and wellness, live a self-directed life, and strive to reach their full potential.

(59) Recovery or treatment plan--A written plan:

(A) developed in collaboration with an individual or the individual's LAR if required, and a QMHP-CS or Licensed Practitioner of the Healing Arts (LPHA) as defined in §301.303 of this title (relating to Definitions);

(B) amended at any time based on an individual's needs or requests;

(C) that guides the recovery treatment process and fosters resiliency;

(D) completed in conjunction with the uniform assessment;

(E) that identifies the individual's changing strengths, capacities, goals, preferences, needs, and desired outcomes; and

(F) that includes recommended services and supports or reasons for the exclusion of services and supports.

(60) Screening--Activities performed by a QMHP-CS to:

(A) collect triage information through face-to-face or telephone interviews with an individual or collateral contact;

(B) determine if the individual's need is emergent, urgent, or routine, conducted before the face-to-face assessment to determine the need for emergency services; and

(C) determine the need for in-depth assessment.

(61) SMHF--State mental health facility. A state hospital or a state center with an inpatient psychiatric component.

(62) SSLC--State supported living center. Consistent with Texas Health and Safety Code §531.002, a residential facility operated by the State to provide individuals with an ID a variety of services, including medical treatment, specialized therapy, and training in the acquisition of personal, social, and vocational skills.

(63) Substance use disorder--The use of one or more drugs, including alcohol, which significantly and negatively impacts one or more major areas of life functioning and which meets the criteria for substance use as described in the current edition of the Diagnostic and Statistical Manual of Mental Disorders (DSM) published by the American Psychiatric Association.

(64) TAC--Texas Administrative Code.

(65) TCOOMMI--Texas Correctional Office on Offenders with Medical or Mental Impairments or its designee.

(66) Transfer--To move from one facility to another facility.

(67) Treating physician--A physician who coordinates and oversees an individual's treatment.

(68) Treatment team--A group of treatment providers, an individual, the individual's LAR, if any, and the LMHA, LBHA, or LIDDA who work together in a coordinated manner to provide comprehensive mental health services to the individual.

(69) Uniform assessment--An assessment tool adopted by HHSC under §301.353 of this title (relating to Provider Responsibilities for Treatment Planning and Service Authorization) used for recommending an individual's level of care.

The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on April 30, 2020.

TRD-202001722

Karen Ray

Chief Counsel

Health and Human Services Commission

Effective date: May 20, 2020

Proposal publication date: November 29, 2019

For further information, please call: (512) 838-4349


DIVISION 2. SCREENING AND ASSESSMENT FOR CRISIS SERVICES AND ADMISSION INTO LOCAL MENTAL HEALTH AUTHORITY OR LOCAL BEHAVIORAL HEALTH AUTHORITY SERVICES--LOCAL MENTAL HEALTH AUTHORITY OR LOCAL BEHAVIORAL HEALTH AUTHORITY RESPONSIBILITIES

26 TAC §§306.161 - 306.163

STATUTORY AUTHORITY

The new sections are adopted under Texas Government Code §531.0055, which provides that the Executive Commissioner of HHSC shall adopt rules for the operation and provision of services by the health and human services agencies. In addition, Texas Health and Safety Code §534.053 requires the Executive Commissioner of HHSC to adopt rules ensuring the provision of community-based mental health services and §534.058 authorizes the Executive Commissioner to develop standards of care for services provided by LMHAs and their subcontractors.

The new sections implement Texas Government Code §531.0055 and Texas Health and Safety Code §534.053 and §534.058.

§306.161.Screening and Assessment.

(a) If an individual is in crisis, an LMHA or LBHA ensures immediate screening and, if recommended based on the screening, a face-to-face intake assessment of an individual in the LMHA's or LBHA's local service area in accordance with §301.327 of this title (relating to Access to Mental Health Community Services).

(b) When the crisis is resolved, the LMHA or LBHA must assess the individual using the uniform assessment and determine:

(1) referral for ongoing services at the LMHA or LBHA;

(2) referral to an alternate provider;

(3) referral to community-based crisis treatment alternative as described in §306.163 of this division (relating to Most Appropriate and Available Treatment Options);

(4) the individual's transportation by identifying and ensuring the individual's transportation needs were met; or

(5) no referral is needed.

(c) If an individual is not in crisis, an LMHA or LBHA screens each individual presenting for services at the LMHA or LBHA as follows:

(1) an LMHA or LBHA staff who is a QMHP-CS or LPHA conducts a screening; and

(2) an LMHA or LBHA staff determines whether the individual's county of residence is within the LMHA's or LBHA's local service area.

(d) If the individual's county of residence is within the LMHA's or LBHA's local service area and the screenings described in subsections (a) and (c) of this section indicates an intake assessment is needed, the LMHA or LBHA conducts an assessment in accordance with §301.353(a) of this title (relating to Provider Responsibilities for Treatment Planning and Service Authorization).

(1) LMHAs and LBHAs serve individuals in the MH priority population designated by HHSC. For an individual in the MH priority population, the LMHA or LBHA identifies which services the individual may be eligible to receive and, if appropriate, determines whether the individual receives services immediately or places the individual on a waiting list for services and refers the individual to other community resources.

(2) Individuals who are enrolled in Medicaid must receive services immediately and may not be placed on a waiting list.

(3) An LMHA or LBHA must serve an individual in accordance with §301.327 of this title.

(4) For an individual not in the MH priority population, the LMHA or LBHA must provide the individual with written notification regarding:

(A) the denial of services and the opportunity to appeal in accordance with §306.154 of this subchapter (relating to Notification and Appeals Process for Local Mental Health Authority or Local Behavioral Health Authority Services); and

(B) the availability of information and assistance from the Ombudsman by contacting the Ombudsman at 1-800-252-8154 or online at hhs.texas.gov/ombudsman.

§306.162.Determining County of Residence.

(a) County of Residence for Adults.

(1) An adult's county of residence is the county which the adult or the adult's LAR indicates is the county of the adult's permanent residence, unless there is a preponderance of evidence to the contrary. If the adult is not a Texas resident or indicates no permanent address, the adult's county of residence is the county in which the evidence indicates the adult resides.

(2) If an adult is unable to communicate the location of the adult's permanent residence and there is no evidence indicating the location of the adult's permanent residence or if an adult is not a Texas resident, the adult's county of residence is the county in which the adult is physically present when the adult requests or requires services.

(3) If an LMHA or LBHA is paying for an adult's community mental health services delivered in the local service area of another LMHA or LBHA, or if an LMHA or LBHA is paying for an adult's living arrangement that is located outside the LMHA's or LBHA's local service area, the county in which the paying LMHA or LBHA is located is the adult's county of residence.

(b) County of Residence for Minors.

(1) Except as provided in paragraph (2) of this subsection, a minor's county of residence is the county in which the minor's LAR's permanent residence is located.

(2) A minor's county of residence is the county in which the minor currently resides if:

(A) it cannot be determined in which county the minor's LAR's permanent residence is located;

(B) a state agency is the minor's LAR;

(C) the minor does not have an LAR; or

(D) the minor is at least 16 years of age and self-enrolling into services.

(c) Dispute regarding county of residence initiated by an LMHA or LBHA.

(1) The LMHA or LBHA must initiate or continue providing clinically necessary services, including discharge planning, during the dispute resolution process.

(2) If an LMHA or LBHA initiates a dispute that executive directors of the affected LMHAs or LBHAs cannot resolve, the HHSC performance contract manager(s) of the affected LMHAs or LBHAs resolves the dispute.

(d) Disputes regarding county of residence initiated by or on behalf of an individual. The Ombudsman may consult with the HHSC performance contract manager(s) of the affected LMHAs or LBHAs and help resolve a dispute initiated by or on behalf of an individual.

(e)Changing county of residence status. Changing an individual's county of residence requires agreement between the LMHAs or LBHAs affected by the change, except as provided in §306.195 of this subchapter (relating to Changing Local Mental Health Authorities or Local Behavioral Health Authorities).

§306.163.Most Appropriate and Available Treatment Options.

(a) Recommendation for treatment. The designated LMHA or LBHA is responsible for recommending the most appropriate and available treatment alternative for an individual in need of mental health services.

(b) Inpatient services.

(1) Before an LMHA or LBHA refers an individual for inpatient services, the LMHA or LBHA must screen and assess the individual to determine if the individual requires inpatient services.

(2) If the screening and assessment indicates the individual requires inpatient services and inpatient services are the least restrictive setting available, the LMHA or LBHA refers the individual:

(A) to an SMHF or facility with a CPB, if the LMHA or LBHA determines that the individual meets the criteria for admission; or

(B) to an LMHA or LBHA network provider of inpatient services.

(3) If the individual is identified in the applicable HHSC automation system as having an ID, the LMHA or LBHA informs the designated LIDDA that the individual has been referred for inpatient services.

(4) If the LMHA, LBHA, or LMHA or LBHA-network provider refers the individual for inpatient services, the LMHA or LBHA must communicate necessary information to the contracted inpatient provider before or at the time of admission, including the individual's:

(A) identifying information, including address;

(B) legal status (e.g., regarding guardianship, charges pending, custody as applicable;

(C) pertinent medical and medication information, including known disabilities;

(D) behavioral information, including information regarding COPSD;

(E) other pertinent treatment information;

(F) finances, third-party coverage, and other benefits, if known; and

(G) advance directive.

(5) If an LMHA or LBHA, other than the individual's designated LMHA or LBHA, refers the individual for inpatient services, the SMHF or facility with a CPB notifies the individual's designated LMHA or LBHA of the referral for inpatient services by the end of the next business day.

(6) The designated LMHA or LBHA assigns a continuity of care worker to an individual admitted to an SMHF, a facility with a CPB, or an LMHA or LBHA inpatient services network provider.

(7) If the individual has an ID or DD, the designated LIDDA assigns a continuity of care worker to the individual.

(8) The LMHA or LBHA continuity of care worker, and LIDDA continuity of care worker as applicable, are responsible for the facilitation of the individual's continuity of services.

(c) Community-based crisis treatment options.

(1) An LMHA or LBHA must ensure the provision of crisis services to an individual experiencing a crisis while the individual is in its local service area.

(2) Individuals in need of a higher level of care, but not requiring inpatient services, have the option, as available, for admission to other services such as crisis respite, crisis residential, extended observation, or crisis stabilization unit.

(d) LMHA or LBHA Services.

(1) If an LMHA or LBHA admits an individual to LMHA or LBHA services, the LMHA or LBHA ensures the provision of services in the most integrated setting available.

(2) The LMHA or LBHA assigns, to an individual receiving services, a staff member who is responsible for coordinating the individual's services.

(e) Court Ordered Treatment. The LMHA or LBHA must provide services to an individual ordered by a court to participate in outpatient mental health services or competency restoration services, if available, when the court identifies the LMHA or LBHA as being responsible for those services.

(f) Referral to alternate provider.

(1) If an individual requests a referral to an alternate provider, and it is not court ordered to receive services from the LMHA or LBHA, the LMHA or LBHA makes a referral to an alternate provider in accordance with the request.

(2) If an individual has third-party coverage, but the coverage will not pay for needed services because the designated LMHA or LBHA does not have a provider in its network that is approved by the third-party coverage, the designated LMHA or LBHA acts in accordance with 25 TAC §412.106(c)(2) (relating to Determination of Ability to Pay).

The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on April 30, 2020.

TRD-202001723

Karen Ray

Chief Counsel

Health and Human Services Commission

Effective date: May 20, 2020

Proposal publication date: November 29, 2019

For further information, please call: (512) 838-4349


DIVISION 3. ADMISSION TO A STATE MENTAL HEALTH FACILITY OR A FACILITY WITH A CONTRACTED PSYCHIATRIC BED--PROVIDER RESPONSIBILITIES

26 TAC §§306.171 - 306.178

STATUTORY AUTHORITY

The new sections are adopted under Texas Government Code §531.0055, which provides that the Executive Commissioner of HHSC shall adopt rules for the operation and provision of services by the health and human services agencies. In addition, Texas Health and Safety Code §534.053 requires the Executive Commissioner of HHSC to adopt rules ensuring the provision of community-based mental health services and §534.058 authorizes the Executive Commissioner to develop standards of care for services provided by LMHAs and their subcontractors.

The new sections implement Texas Government Code §531.0055 and Texas Health and Safety Code §534.053 and §534.058.

§306.171.General Admission Criteria for a State Mental Health Facility or Facility with a Contracted Psychiatric Bed.

(a) With the exceptions of Waco Center for Youth, a maximum-security unit, and an adolescent forensic unit, an SMHF or facility with a CPB may admit an individual, who has been assessed by an LMHA or LBHA and recommended for inpatient admission, only if the individual has a mental illness and, as a result of the mental illness:

(1) presents a substantial risk of serious harm to self or others; or

(2) evidences a substantial risk of mental or physical deterioration.

(b) An individual's admission to an SMHF or facility with a CPB may not occur if the individual:

(1) requires specialized care that is not available at the SMHF or facility with a CPB; or

(2) has a physical medical condition that is unstable and could reasonably require inpatient medical treatment for the condition.

(c) If an individual arrives at an SMHF or facility with a CPB for mental health services, and the individual was not screened or referred by an LMHA or LBHA as described in §306.163 of this subchapter (relating to Most Appropriate and Available Treatment Options):

(1) the SMHF or facility with a CPB notifies the designated LMHA or LBHA that the individual has presented for services at the SMHF or facility with a CPB; and

(2) the SMHF or facility with a CPB physician determines if the individual has an emergency medical condition and the physician decides whether the facility has the capability to treat the emergency medical condition.

(A) If the SMHF or facility with a CPB has the capability to treat the emergency medical condition, the facility admits the individual as required by the Emergency Medical Treatment and Active Labor Act (EMTALA) (42 USC §1395dd).

(B) If the SMHF or facility with a CPB does not have the capability to treat the emergency medical condition in accordance with EMTALA, the facility provides evaluation and treatment within its capability to stabilize the individual and arranges for the individual to be transferred to a hospital that has the capability to treat the emergency medical condition.

(d) If an LMHA or LBHA authorized an individual's admission to an SMHF or a facility with a CPB and the facility determines that the individual does not meet inpatient criteria for admission, the facility contacts the designated LMHA or LBHA to coordinate alternate outpatient community services. The designated LMHA or LBHA must contact the individual within 24 hours after being notified that the individual does not meet inpatient admission criteria.

§306.172.Admission Criteria for Maximum-Security Units.

An individual's admission to a maximum-security unit occurs only if the individual is:

(1) committed pursuant to Chapter 46B or Chapter 46C of the Texas Code of Criminal Procedure and determined to require admission to a maximum-security unit; or

(2) determined manifestly dangerous in accordance with HHSC state hospital policies.

§306.173.Admission Criteria for an Adolescent Forensic Unit.

(a) An adolescent forensic unit admits an adolescent only if the adolescent meets the criteria described in a paragraph of this subsection.

(1) Condition of probation or parole. The adolescent's admission to an adolescent forensic unit fulfills a condition of probation or parole for a juvenile offense if the adolescent:

(A) based on a clinical evaluation, is determined to be in need of specialized mental health treatment in a secure treatment setting to address violent behavior or delinquent conduct;

(B) has co-occurring psychiatric and substance use disorders; or

(C) has exhausted available community resources for treatment and has been recommended for admission by the local CRCG.

(2) Commitment under Texas Family Code, Chapter 55. The adolescent has been committed to a mental health facility under the Texas Family Code, Chapter 55, Subchapter C or D.

(3) Determined manifestly dangerous. The adolescent has been determined manifestly dangerous in accordance with HHSC state hospital policies.

(b) An adolescent may not be admitted to an adolescent forensic unit if a physician determines the adolescent has an ID.

§306.174.Admission Criteria for Waco Center for Youth.

(a) An individual's admission to Waco Center for Youth occurs only if the individual:

(1) is an adolescent, or an adolescent whose age at admission allows adequate time for treatment programming before reaching 18 years of age;

(2) is diagnosed as emotionally disturbed;

(3) has a history of behavior adjustment problems;

(4) needs a structured treatment program in a residential facility; and

(5) is currently receiving LMHA or LBHA services or inpatient services at an SMHF or a facility with a CPB and has been referred for admission by:

(A) the LMHA or LBHA after presentation and endorsement by the local CRCG that all appropriate community-based resources have been exhausted and Waco Center for Youth is the least restrictive environment needed, the LMHA presents the CRCG letter of recommendation with the referral;

(B) the LMHA or LBHA, following a documented LMHA or LBHA assessment that local resources have been explored and exhausted (if the full CRCG cannot convene in a timely manner); or

(C) an SMHF.

(b) Waco Center for Youth may not admit:

(1) a child under 10 years of age;

(2) an adolescent that has been found to have engaged in delinquent conduct or conduct indicating a need for supervision under the Texas Family Code, Title 3;

(3) an adolescent that is acutely psychotic, suicidal, homicidal, or seriously violent; or

(4) an adolescent that is determined by a physician to have an ID.

(c) If the Waco Center for Youth denies admission for services, Waco Center for Youth provides the adolescent's LAR written notification stating:

(1) the reason for the denial of services; and

(2) that the LAR may appeal the denial by contacting the LMHA or LBHA.

(d) If an adolescent receiving services at Waco Center for Youth requires admission to a psychiatric hospital or another setting or program, the discharge planning process includes the joint determination of the psychiatric hospital and Waco Center for Youth of the clinical appropriateness of readmission to Waco Center for Youth. With the agreement of the adolescent's treatment team, the Waco Center for Youth leadership, psychiatric hospital leadership, and the adolescent's LAR, the adolescent is prioritized for readmission to Waco Center for Youth.

§306.175.Voluntary Admission Criteria for a Facility with a Contracted Psychiatric Bed Authorized by an LMHA or LBHA or for a State Mental Health Facility.

(a) Request for voluntary admission.

(1) In accordance with Texas Health and Safety Code §572.001, a request for voluntary admission of an individual with a mental illness may only be made by:

(A) the individual, if the individual is at least 16 years of age or older;

(B) the LAR if:

(i) the individual is younger than 18 years of age; and

(ii) the LAR is described by §306.153(36)(A)(i) or (iii) of this subchapter (relating to Definitions); or

(C) the LAR, if the LAR is described by §306.153(36)(A)(ii), and admission is sought pursuant to the provisions of Texas Health and Safety Code §572.001(c-1) - (c-4).

(2) In accordance with Texas Health and Safety Code §572.001(b) and (e), a request for admission must:

(A) be in writing and signed by the LAR or individual making the request; and

(B) include a statement that the LAR or individual making the request:

(i) agrees that the individual remains in the SMHF or facility with a CPB until the individual's discharge; and

(ii) consents to diagnosis, observation, care, and treatment of the individual until:

(I) the discharge of the individual; or

(II) the individual is entitled to leave the SMHF or facility with a CPB, in accordance with Texas Health and Safety Code §572.004, after a request for discharge is made.

(3) The consent given under paragraph (2)(B)(ii) of this subsection does not waive an individual's rights described in:

(A) 25 TAC Chapter 404, Subchapter E (relating to Rights of Persons Receiving Mental Health Services);

(B) 25 TAC Chapter 405, Subchapter E (relating to Electroconvulsive Therapy (ECT));

(C) 25 TAC Chapter 414, Subchapter I (relating to Consent to Treatment with Psychoactive Medication--Mental Health Services); and

(D) 25 TAC Chapter 415, Subchapter F (relating to Interventions in Mental Health Services).

(b) Failure to meet admission criteria. If the physician of an SMHF or facility with a CPB determines that an individual does not meet admission criteria and that community resources may appropriately serve the individual, the facility contacts the LMHA or LBHA to discuss the availability and appropriateness of community-based services for the individual to receive. The LMHA or LBHA must contact the individual, the individual's family or any other person providing support as authorized by the individual, and LAR, if any, no later than 24 hours after the LMHA or LBHA is notified of the failure to meet the admission criteria.

(c) Examination.

(1) A physician must conduct an examination on each individual requesting voluntary admission in accordance with this subsection.

(2) In accordance with Texas Health and Safety Code §572.0025(f)(1)(A), a physician conducts a physical and psychiatric examination, either in person or through the use of audiovisual or other telecommunications technology within 72 hours before voluntary admission or 24 hours after voluntary admission for the following:

(A) an assessment for medical stability; and

(B) a psychiatric examination, and, if indicated, a substance use assessment.

(3) In accordance with Texas Health and Safety Code §572.0025(f)(1); the physician may not delegate the examination to a non-physician.

(d) Meets admission criteria. If, after examination, the physician determines that the individual meets admission criteria of the SMHF or facility with a CPB, the SMHF or facility with a CPB admits the individual.

(e) Does not meet admission criteria. If, after the examination, the physician determines that the individual does not meet the admission criteria of the SMHF or facility with a CPB, the SMHF or the facility with a CPB contacts the designated LMHA or LBHA to coordinate alternate outpatient community services as clinically indicated.

(f) Capacity to consent.

(1) If a physician determines that an individual whose consent is necessary for a voluntary admission does not have the capacity to consent to diagnosis, observation, care, and treatment, the SMHF or the facility with a CPB may not voluntarily admit the individual.

(2) When appropriate, the SMHF or the facility with a CPB initiates an emergency detention proceeding in accordance with Texas Health and Safety Code, Chapter 573, or files an application for court-ordered inpatient mental health services in accordance with Texas Health and Safety Code Chapter 574.

(g) Intake assessment. In accordance with Texas Health and Safety Code §572.0025(b), an assessment professional for an SMHF or facility with a CPB, before voluntary admission of an individual, conducts an intake assessment for:

(1) obtaining relevant information about the individual, including:

(A) psychiatric and medical history;

(B) social history;

(C) symptomology;

(D) support systems;

(E) finances;

(F) third-party coverage or insurance benefits; and

(G) advance directives;

(2) explaining, orally and in writing, the individual's rights described in 25 TAC Chapter 404, Subchapter E;

(3) explaining, orally and in writing, the SMHF's or facility with a CPB's services and treatment as they relate to the individual;

(4) explaining, orally and in writing, the existence, purpose, telephone number, and address of the protection and advocacy system established in Texas, pursuant to Texas Health and Safety Code §576.008; and

(5) explaining, orally and in writing, the individual trust fund account, charges for services, and the financial responsibility form.

(h) Requirements for voluntary admission. An SMHF or facility with a CPB may voluntarily admit an individual only if:

(1) a request for admission is made in accordance with subsection (a) of this section;

(2) a physician has:

(A) in accordance with Texas Health and Safety Code §572.0025(f)(1):

(i) conducted an examination in accordance with subsection (c) of this section within 72 hours before the admission or 24 hours after the admission; or

(ii) has consulted with a physician who has conducted an examination in accordance with subsection (c) of this section within 72 hours before the admission or 24 hours after the admission;

(B) determined that the individual meets the admission criteria of the SMHF or facility with a CPB and that admission is clinically justified; and

(C) issued an order admitting the individual; and

(3) in accordance with Texas Health and Safety Code §572.0025(f)(2), the administrator or designee of the SMHF or facility with a CPB has signed a written statement agreeing to admit the individual.

(i) Documentation of admission order. In accordance with Texas Health and Safety Code §572.0025(f)(1), the order described in subsection (h)(2)(C) of this section is issued:

(1) in writing and signed by the issuing physician; or

(2) orally or electronically if, within 24 hours after its issuance, the SMHF or facility with a CPB has a written order signed by the issuing physician.

(j) Periodic evaluation. To determine the need for continued inpatient treatment, a physician or physician's designee must evaluate and document justification for continued stay for an individual voluntarily receiving acute inpatient treatment as often as clinically indicated, but no less than once a week.

§306.176.Admission Criteria for a Facility with a Contracted Psychiatric Bed Authorized by an LMHA or LBHA or for a State Mental Health Facility for Emergency Detention.

(a) Acceptance for preliminary examination. In accordance with Texas Health and Safety Code §573.021 and §573.022, an SMHF or facility with a CPB accepts for a preliminary examination:

(1) an individual, of any age, who has been apprehended and transported to the SMHF or facility with a CPB by a peace officer or emergency medical services personnel in accordance with Texas Health and Safety Code §573.001 or §573.012; or

(2) an adult who has been transported to the SMHF or facility with a CPB by the adult's guardian in accordance with Texas Health and Safety Code §573.003.

(b) Preliminary examination.

(1) A physician conducts a preliminary examination of an individual as soon as possible but not more than 12 hours after the individual is transported to the SMHF or facility with a CPB for emergency detention.

(2) The preliminary examination consists of:

(A) an assessment for medical stability; and

(B) a psychiatric examination, including a substance use assessment if indicated, to determine if the individual meets the criteria described in subsection (c)(1) of this section.

(c) Requirements for emergency detention. The SMHF or facility with a CPB admits an individual for emergency detention if:

(1) in accordance with Texas Health and Safety Code §573.022(a)(2), a physician determines from the preliminary examination that:

(A) the individual has a mental illness;

(B) the individual evidences a substantial risk of serious harm to himself or others;

(C) the described risk of harm is imminent unless the individual is immediately detained; and

(D) emergency detention is the least restrictive means by which the necessary detention may be accomplished;

(2) in accordance with Texas Health and Safety Code §573.022(a)(3), a physician makes a written statement documenting the determination described in paragraph (1) of this subsection and describing:

(A) the nature of the individual's mental illness;

(B) the risk of harm the individual evidences, demonstrated either by the individual's behavior or by evidence of severe emotional distress and deterioration in the individual's mental condition to the extent that the individual cannot remain at liberty; and

(C) the detailed information on which the physician based the determination;

(3) the physician issues and signs a written order admitting the individual for emergency detention; and

(4) the individual meets the admission criteria of the SMHF or facility with a CPB.

(d) Release.

(1) The SMHF or facility with a CPB releases the individual accepted for a preliminary examination if:

(A) a preliminary examination of the individual has not been conducted within 12 hours after the individual is apprehended and transported to the facility by the peace officer or transported for emergency detention; or

(B) in accordance with Texas Health and Safety Code §573.023(a), the individual is not admitted for emergency detention on completion of the preliminary examination.

(2) If the SMHF or facility with a CPB does not admit the individual on an emergency detention, the facility contacts the designated LMHA or LBHA to coordinate alternate outpatient community services. The designated LMHA or LBHA must contact the individual within 24 hours of being notified that the individual does not meet inpatient admission criteria to coordinate alternate outpatient community services.

(3) In accordance with Texas Health and Safety Code §576.007(a), if an individual who is an adult is not admitted on emergency detention, the SMHF or facility with a CPB makes a reasonable effort to notify the individual's family, or any other person providing support as authorized by the individual, and LAR, if any, before he or she is released.

(e) Intake assessment. An assessment professional for an SMHF or facility with a CPB conducts an intake assessment as soon as possible, but not later than 24 hours after an individual is admitted for emergency detention. The intake assessment includes:

(1) obtaining relevant information about the individual, including:

(A) psychiatric and medical history;

(B) social history;

(C) symptomology;

(D) support systems;

(E) finances;

(F) third-party coverage or insurance benefits; and

(G) advance directives;

(2) explaining, orally and in writing, the individual's rights described in 25 TAC Chapter 404, Subchapter E (relating to Rights of Persons Receiving Mental Health Services);

(3) explaining, orally and in writing, the SMHF's or facility with a CPB's services and treatment as they relate to the individual;

(4) explaining, orally and in writing, the existence, purpose, telephone number, and address of the protection and advocacy system established in Texas, pursuant to Texas Health and Safety Code §576.008; and

(5) explaining, orally and in writing, the individual trust fund account, charges for services, and the financial responsibility form.

§306.177.Admission Criteria Under Order of Protective Custody or Court-ordered Inpatient Mental Health Services.

(a) An SMHF or facility with a CPB admits an individual:

(1) under a protective custody order only if a court has issued a protective custody order in accordance with Texas Health and Safety Code §574.022; or

(2) for court-ordered inpatient mental health services only if a court has issued:

(A) an order for temporary inpatient mental health services issued in accordance with Texas Health and Safety Code §574.034, or Texas Family Code Chapter 55;

(B) an order for extended inpatient mental health services issued in accordance with Texas Health and Safety Code §574.035, or Texas Family Code Chapter 55;

(C) an order for commitment issued in accordance with the Texas Code of Criminal Procedure, Chapter 46B; or

(D) an order for commitment issued in accordance with the Texas Code of Criminal Procedure, Chapter 46C.

(b) If an SMHF or facility with a CPB admits an individual in accordance with subsection (a) of this section, a physician, PA, or APRN issues and signs a written order admitting the individual. Admission of an individual in accordance with subsection (a) of this section is not a medical act and does not require the use of independent medical judgment or treatment by the physician, PA, or APRN issuing and signing the written order.

(c) An SMHF or a facility with a CPB conducts an intake assessment as soon as possible, but not later than 24 hours after the individual is admitted under a protective custody order or court-ordered inpatient mental health services. The intake assessment includes:

(1) obtaining relevant information about the individual, including:

(A) psychiatric and medical history;

(B) social history;

(C) symptomology;

(D) support systems;

(E) finances;

(F) third-party coverage or insurance benefits; and

(G) advance directives; and

(2) explaining, orally and in writing, the individual's rights described in 25 TAC Chapter 404, Subchapter E (relating to Rights of Persons Receiving Mental Health Services);

(3) explaining, orally and in writing, the SMHF's or facility with a CPB's services and treatment as they relate to the individual; and

(4) explaining, orally and in writing, the existence, purpose, telephone number, and address of the protection and advocacy system established in Texas, pursuant to Texas Health and Safety Code §576.008.

§306.178.Voluntary Treatment Following Involuntary Admission.

An SMHF or a facility with a CPB continues to provide inpatient services to an individual involuntarily receiving treatment after the individual is eligible for discharge as described in §306.204 of this subchapter (relating to Discharge of an Individual Involuntarily Receiving Treatment), if, after consultation with the designated LMHA or LBHA:

(1) the SMHF or facility with a CPB obtains written consent for voluntary inpatient services that meets the requirements of a request for voluntary admission, as described in §306.175(a) of this subchapter (relating to Voluntary Admission Criteria for a Facility with a Contracted Psychiatric Bed Authorized by an LMHA or LBHA or for a State Mental Health Facility); and

(2) the individual's treating physician:

(A) examines the individual; and

(B) based on the examination in subparagraph (A) of this paragraph, issues an order for voluntary inpatient services that meets the requirements of §306.175(i) of this subchapter.

The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on April 30, 2020.

TRD-202001724

Karen Ray

Chief Counsel

Health and Human Services Commission

Effective date: May 20, 2020

Proposal publication date: November 29, 2019

For further information, please call: (512) 838-4349


DIVISION 4. TRANSFERS AND CHANGING LOCAL MENTAL HEALTH AUTHORITIES OR LOCAL BEHAVIORAL HEALTH AUTHORITIES

26 TAC §§306.191 - 306.195

STATUTORY AUTHORITY

The new sections are adopted under Texas Government Code §531.0055, which provides that the Executive Commissioner of HHSC shall adopt rules for the operation and provision of services by the health and human services agencies. In addition, Texas Health and Safety Code §534.053 requires the Executive Commissioner of HHSC to adopt rules ensuring the provision of community-based mental health services and §534.058 authorizes the Executive Commissioner to develop standards of care for services provided by LMHAs and their subcontractors.

The new sections implement Texas Government Code §531.0055 and Texas Health and Safety Code §534.053 and §534.058.

§306.191.Transfers Between State Mental Health Facilities.

(a) The individual, the individual's LAR, any other person authorized by the individual, SMHF staff, the designated LMHA or LBHA, or another interested person may initiate a request to transfer an individual from one SMHF to another SMHF.

(b) A transfer between SMHFs may occur when deemed advisable by the administrator of the transferring SMHF with the agreement of the administrator of the receiving SMHF based on:

(1) the condition and desires of the individual;

(2) geographic residence of the individual;

(3) program and bed availability; and

(4) geographical proximity to the individual's family and any other person authorized by the individual, and LAR, if any.

(c) An individual voluntarily receiving treatment may not be transferred without the consent of the individual or LAR who made the request for voluntary admission in accordance with §306.175(a)(1) of this subchapter (relating to Voluntary Admission Criteria for a Facility with a Contracted Psychiatric Bed Authorized by an LMHA or LBHA or for a State Mental Health Facility).

(d) If an SMHF transfers an individual receiving court-ordered inpatient mental health services from one SMHF to another SMHF, the transferring SMHF notifies the committing court of the transfer.

(e) If a prosecuting attorney has notified the SMHF administrator that an individual has criminal charges pending, the administrator notifies the judge of the court before which charges are pending if the individual transfers to another SMHF.

(f) 25 TAC Chapter 415, Subchapter G (relating to Determination of Manifest Dangerousness) or HHSC state hospital policies govern transfer of an individual between an SMHF and a maximum-security unit or adolescent forensic unit.

§306.194.Transfers Between a State Mental Health Facility and Another Facility in Texas.

(a) Texas Health and Safety Code §575.011, §575.014, and §575.017 govern transfer of an individual between an SMHF and a psychiatric hospital. An SMHF must not transfer an individual voluntarily receiving treatment without the consent of the individual or LAR who made the request for voluntary admission in accordance with §306.175(a)(1) of this subchapter (relating to Voluntary Admission Criteria for a Facility with a Contracted Psychiatric Bed Authorized by an LMHA or LBHA or for a State Mental Health Facility).

(b) Texas Health and Safety Code §575.015 and §575.017 govern transfer of an individual from an SMHF to a federal correctional facility. The transferring SMHF notifies the designated LMHA or LBHA of the transfer.

(c) Texas Health and Safety Code §575.016 and §575.017 govern transfer of an individual from a facility of the institutional division of the Texas Department of Criminal Justice to an SMHF.

§306.195.Changing Local Mental Health Authorities or Local Behavioral Health Authorities.

(a) Requirements related to an individual currently receiving LMHA or LBHA services who intends to move his or her permanent residence to a county within the local service area of another LMHA or LBHA and seek services from the new LMHA or LBHA.

(1) The originating LMHA or LBHA must:

(A) initiate transition planning with the receiving LMHA or LBHA;

(B) educate the individual on the provisions of this subchapter regarding the individual's transfer, consisting of:

(i) information regarding walk-in intake services, if applicable, where no appointment is scheduled for the individual's initial intake to determine eligibility;

(ii) the individual's rights as eligible for services; and

(iii) the receiving LMHA or LBHA is notified of the individual's intent to move the individual's permanent residence;

(C) assist in facilitating and scheduling the intake appointment at the new LMHA or LBHA once the relocation has been confirmed;

(D) submit to the receiving LMHA or LBHA treatment information pertinent to the individual's continuity of care with submission after the individual's transfer request;

(E) ensure the individual has sufficient medication for up to 90 days or to last until the medication management appointment date at the receiving LMHA or LBHA;

(F) maintain the individual's case in open status in the applicable HHSC automation system for 90 days or until notified that the individual has been admitted to services at the receiving LMHA or LBHA, whichever occurs first;

(G) conduct an intake assessment in accordance with §301.353(a) of this title (relating to Provider Responsibilities for Treatment Planning and Service Authorization) and determine whether the LMHA or LBHA has the capacity to serve the individual immediately or place the individual on a waiting list for services; and

(H) authorize an initial 180 days of services for an adult and 90 days for a child or an adolescent for transitioning and ongoing care, including the provision of medications, if the individual is eligible and not on the waiting list.

(2) If the individual seeks services from the new LMHA or LBHA without prior knowledge of the originating LMHA or LBHA:

(A) the receiving LMHA or LBHA must:

(i) initiate transition planning with the originating LMHA or LBHA;

(ii) promptly request records pertinent to the individual's treatment, with the individual's consent, if applicable;

(iii) conduct an intake assessment in accordance with §301.353(a) of this title and determine whether the individual should receive services immediately or be placed on a waiting list for services; and

(iv) if the individual is eligible and the individual is not on the waitlist, authorize an initial 180 days of services for an adult and 90 days for a child or an adolescent for transitioning and ongoing care, including the provision of medications; and

(B) the originating LMHA or LBHA must:

(i) submit requested information to the new LMHA or LBHA within seven days after the request; and

(ii) maintain the individual's case in open status in the applicable HHSC automation system for 90 days or until notified that the individual has been admitted to services at the new LMHA or LBHA, whichever occurs first.

(3) If the new LMHA or LBHA denies services to the individual during the transition period, or reduces or terminates services at the conclusion of the authorized period, the new LMHA or LBHA must notify the individual or LAR in writing within ten business days of the proposed action and the right to appeal the proposed action in accordance with §306.154 of this subchapter (relating to Notification and Appeals Process for Local Mental Health Authority or Local Behavioral Health Authority Services).

(b) Requirements related to an individual receiving inpatient services at an SMHF or facility with a CPB. If an individual at an SMHF or facility with a CPB informs the SMHF or facility with a CPB that the individual intends to move the individual's permanent residence to a county within the local service area of another LMHA or LBHA and seek services from the new LMHA or LBHA:

(1) the SMHF or facility with a CPB notifies the following of the individual's intent to move the individual's permanent residence upon discharge:

(A) the originating LMHA or LBHA, if the individual was receiving LMHA or LBHA services from the originating LMHA or LBHA before admission to the SMHF or facility with a CPB; and

(B) the new LMHA or LBHA;

(2) the following participate in the individual's discharge planning in accordance with §306.201 of this subchapter (relating to Discharge Planning):

(A) the SMHF or facility with a CPB;

(B) the new LMHA or LBHA; and

(C) the originating LMHA or LBHA, if the individual was receiving LMHA or LBHA services from the originating LMHA or LBHA before admission to the SMHF or facility with a CPB; and

(3) if the individual was receiving LMHA or LBHA services from the originating LMHA or LBHA before admission to the SMHF or facility with a CPB, the originating LMHA or LBHA maintains the individual's case in open status in the applicable HHSC automation system for 90 days or until notified that the individual is admitted to services at the new LMHA or LBHA, whichever occurs first.

The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on April 30, 2020.

TRD-202001725

Karen Ray

Chief Counsel

Health and Human Services Commission

Effective date: May 20, 2020

Proposal publication date: November 29, 2019

For further information, please call: (512) 838-4349


DIVISION 5. DISCHARGE AND ABSENCES FROM A STATE MENTAL HEALTH FACILITY OR FACILITY WITH A CONTRACTED PSYCHIATRIC BED

26 TAC §§306.201 - 306.207

STATUTORY AUTHORITY

The new sections are adopted under Texas Government Code §531.0055, which provides that the Executive Commissioner of HHSC shall adopt rules for the operation and provision of services by the health and human services agencies. In addition, Texas Health and Safety Code §534.053 requires the Executive Commissioner of HHSC to adopt rules ensuring the provision of community-based mental health services and §534.058 authorizes the Executive Commissioner to develop standards of care for services provided by LMHAs and their subcontractors.

The new sections implement Texas Government Code §531.0055 and Texas Health and Safety Code §534.053 and §534.058.

§306.201.Discharge Planning.

(a) At the time of an individual's admission to an SMHF or facility with a CPB, the designated LMHA or LBHA, if any, and the SMHF or facility with a CPB begins discharge planning for the individual.

(b) The designated LMHA or LBHA continuity of care worker or other designated staff; the designated LIDDA continuity of care worker, if applicable; the individual; the individual's LAR, if any; and any other person authorized by the individual coordinates discharge planning with the SMHF or facility with a CPB.

(1) Except for the SMHF or facility with a CPB treatment team and the individual, involvement in discharge planning may be through teleconference or video-conference calls.

(2) The SMHF or the facility with a CPB must provide a minimum of 24-hour notification before scheduled staffings and reviews to persons involved in discharge planning.

(3) The LMHA, LBHA, or LIDDA, if applicable, and the SMHF or facility with a CPB involved in discharge planning must coordinate all discharge planning activities and ensure the development and completion of the discharge plan before the individual's discharge.

(c) Discharge planning must consist of the following activities:

(1) Considering all pertinent information about the individual's clinical needs, the SMHF or facility with a CPB must identify and recommend specific clinical services and supports needed by the individual after discharge or while on ATP.

(2) The LMHA, LBHA, or LIDDA, if applicable, must identify and recommend specific non-clinical services and supports needed by the individual after discharge, including housing, food, and clothing resources.

(3) If an individual needs a living arrangement, the LMHA or LBHA continuity of care worker must identify a setting consistent with the individual's clinical needs and preference that is available and has accessible services and supports as agreed upon by the individual or the individual's LAR.

(4) The LMHA, LBHA, or LIDDA, if applicable must identify potential providers and resources for the services and supports recommended.

(5) The SMHF or facility with a CPB must counsel the individual and the individual's LAR, if any, to prepare them for care after discharge or while on ATP.

(6) The SMHF or facility with a CPB must provide the individual and the individual's LAR, if any, with written notification of the existence, purpose, telephone number, and address of the protection and advocacy system established in Texas, pursuant to Texas Health and Safety Code §576.008.

(7) The LMHA or LBHA must comply with the Preadmission Screening and Resident Review processes as described in Chapter 303 of this title (relating to Preadmission Screening and Resident Review (PASRR)) for an individual recommended to move to a nursing facility.

(d) Before an individual's discharge:

(1) The individual's treatment team must develop a discharge plan to include the individual's stated wishes. The discharge plan must consist of:

(A) a description of the individual's living arrangement after discharge, or while on ATP, that reflects the individual's preferences, choices, and available community resources;

(B) arrangements and referrals for the available and accessible services and supports agreed upon by the individual or LAR recommended in the individual's discharge plan;

(C) a written description of recommended clinical and non-clinical services and supports the individual may receive after discharge or while on ATP. The SMHF or facility with a CPB documents arrangements and referrals for the services and supports recommended upon discharge or ATP in the discharge plan;

(D) a description of problems identified at discharge or ATP, including any issues that may disrupt the individual's stability in the community;

(E) the individual's goals, strengths, interventions, and objectives as stated in the individual's discharge plan in the SMHF or facility with a CPB;

(F) comments or additional information;

(G) a final diagnosis based on the current edition of the Diagnostic and Statistical Manual of Mental Disorders (DSM) published by the American Psychiatric Association;

(H) the names, contact information, and addresses of providers to whom the individual will be referred for any services or supports after discharge or while on ATP; and

(I) in accordance with Texas Health and Safety Code §574.081(c), a description of:

(i) the types and amount of medication the individual needs after discharge or while on ATP until the individual is evaluated by a physician; and

(ii) the person or entity responsible for providing and paying for the medication.

(2) The SMHF or facility with a CPB must request that the individual or LAR, as appropriate, sign the discharge plan, and document in the discharge plan whether the individual or LAR agree or disagree with the plan.

(3) If the individual or LAR refuses to sign the discharge plan described in paragraph (2) of this subsection, the SMHF or facility with a CPB documents in the individual's record if the individual or LAR agrees to the plan or not, reasons stated, and any other circumstances of the refusal.

(4) If applicable, the individual's treating physician must document in the individual's record reasons why the individual does not require continuing care or a discharge plan in accordance with Texas Health and Safety Code §574.081(g).

(5) If the LMHA or LBHA disagrees with the SMHF or facility with a CPB treatment team's decision concerning discharge:

(A) the treating physician of the SMHF or facility with a CPB consults with the LMHA or LBHA physician or designee to resolve the disagreement within 24 hours;

(B) and if the disagreement continues unresolved:

(i) the medical director or designee of the SMHF or facility with a CPB consults with the LMHA or LBHA medical director; and

(ii) if the disagreement continues unresolved after consulting with the LMHA or LBHA medical director:

(I) the medical director or designee of the SMHF or facility with a CPB refers the issue to the State Hospital System Chief Medical Officer; and

(II) the State Hospital System Chief Medical Officer collaborates with the Medical Director of the Behavioral Health Section to render a final decision within 24 hours of notification.

(e) Discharge notice to family or LAR.

(1) In accordance with Texas Health and Safety Code §576.007, before discharging an individual who is an adult, the SMHF or facility with a CPB makes a reasonable effort to notify the individual's family or any other person providing support as authorized by the individual or LAR, if any, of the discharge if the adult grants permission for the notification.

(2) Before discharging an individual at least 16 years of age or younger than 18 years of age, the SMHF or facility with a CPB makes a reasonable effort to notify the individual's family as authorized by the individual or LAR, if any, of the discharge if the individual grants permission for the notification.

(3) Before discharging an individual younger than 16 years of age, the SMHF or facility with a CPB notifies the individual's LAR of the discharge.

(f) Release of minors. Upon discharge, the SMHF or facility with a CPB may release a minor younger than 16 years of age only to the minor's LAR or the LAR's designee.

(1) If the LAR or the LAR's designee is unwilling to retrieve the minor from the SMHF or facility with a CPB and the LAR is not a state agency:

(A) the SMHF or facility with a CPB:

(i) notifies the Department of Family and Protective Services (DFPS), so DFPS can take custody of the minor from the SMHF or facility with a CPB;

(ii) refers the matter to the local CRCG to schedule a meeting with representatives from the required agencies described in subsection (f)(2)(A) of this section, the LAR, and minor to explore resources and make recommendations; and

(iii) documents the CRCG referral in the discharge plan; and

(B) the medical directors or their designees of the SMHF or facility with a CPB; designated LMHA, LBHA, or LIDDA; and DFPS meet to develop and solidify the discharge recommendations.

(2) If the LAR is a state agency unwilling to assume physical custody of the minor from the SMHF or facility with a CPB, the SMHF or the facility with a CPB:

(A) refers the matter to the local CRCG to schedule a meeting with representatives from the member agencies, in accordance with 40 TAC Chapter 702, Subchapter E (relating to Memorandum of Understanding with Other State Agencies) the LAR, and minor to explore resources and make recommendations; and

(B) documents the CRCG referral in the discharge plan.

(g) Notice to the designated LMHA, LBHA, or LIDDA. At least 24 hours before an individual's planned discharge or ATP, and no later than 24 hours after an unexpected discharge, an SMHF or facility with a CPB notifies the designated LMHA, LBHA, or LIDDA of the anticipated or unexpected discharge and conveys the following information about the individual:

(1) identifying information, including address;

(2) legal status (e.g., regarding guardianship, charges pending, or custody if the individual is a minor);

(3) the day and time the individual will be discharged or on an ATP;

(4) the individual's destination after discharge or ATP;

(5) pertinent medical information;

(6) current medications;

(7) behavioral data, including information regarding COPSD; and

(8) other pertinent treatment information, including the discharge plan.

(h) Discharge packet.

(1) At a minimum, a discharge packet must include:

(A) the discharge plan;

(B) referral instructions, including:

(i) SMHF or facility with a CPB contact person;

(ii) name of the designated LMHA, LBHA, or LIDDA continuity of care worker;

(iii) names of community resources and providers to whom the individual is referred, including contacts, appointment dates and times, addresses, and phone numbers;

(iv) a description of to whom or where the individual is released upon discharge, including the individual's intended residence (address and phone number);

(v) instructions for the individual, LAR, and primary care giver as applicable;

(vi) medication regimen and prescriptions, as applicable; and

(vii) dated signature of the individual or LAR and a member of the SMHF or facility with a CPB treatment team;

(C) copies of all available, pertinent, current summaries, and assessments; and

(D) the treating physician's orders.

(2) At discharge or ATP, the SMHF or facility with a CPB provides a copy of the discharge packet to the individual. Individuals may request additional records. If the requested records are reasonably likely to endanger the individual's life or physical safety, these records can be withheld. Documentation of the determination to withhold records is required in the individual's medical record.

(3) Within 24 hours after discharge or ATP, the SMHF or facility with a CPB sends a copy of the discharge packet to:

(A) the designated LMHA, LBHA, or LIDDA; and

(B) the providers to whom the individual is referred, including:

(i) an LMHA or LBHA network provider, if the LMHA or LBHA is responsible for ensuring the individual's services after discharge or while on an ATP;

(ii) an alternate provider, if the individual requested referral to an alternate provider; and

(iii) a county jail, if the individual will be taken to the county jail upon discharge.

(i) Unexpected Discharge.

(1) The SMHF or facility with a CPB and the designated LMHA, LBHA, or LIDDA must make reasonable efforts to provide discharge planning for an individual discharged unexpectedly.

(2) If there is an unexpected discharge, the facility social worker or a staff with an equivalent credential to a social worker must document the reason for not completing discharge planning activities in the individual's record.

(j) Transportation. An SMHF or facility with a CPB must:

(1) initiate and secure transportation in collaboration with an LMHA or LBHA to a planned location after an individual's discharge; and

(2) inform a designated LMHA, LBHA, or LIDDA of an individual's transportation needs after discharge or an ATP.

(k) Discharge summary.

(1) Within ten days after an individual's discharge, the individual's physician of the SMHF or facility with a CPB completes a written discharge summary for the individual.

(2) Within 21 days after an individual's discharge from a LMHA or LBHA the LMHA or LBHA must complete a written discharge summary for the individual.

(3) Written discharge summary includes:

(A) a description of the individual's treatment and their response to that treatment;

(B) a description of the level of care for services received;

(C) a description of the individual's level of functioning at discharge;

(D) a description of the individual's living arrangement after discharge;

(E) a description of the community services and supports the individual will receive after discharge;

(F) a final diagnosis based on the current edition of the DSM; and

(G) a description of the amount of medication available to the individual, if applicable.

(4) The discharge summary must be sent to the individual's:

(A) designated LMHA, LBHA, or LIDDA, as applicable; and

(B) providers to whom the individual was referred.

(5) Documentation of refusal. If the individual, the individual's LAR, or the individual's caregivers refuse to participate in the discharge planning, the circumstances of the refusal must be documented in the individual's record.

(l) Care after discharge. An individual discharged from an SMHF or facility with a CPB is eligible for:

(1) community transitional services for 90 days if referred to an LMHA or LBHA; or

(2) ongoing services.

§306.202.Special Considerations for Discharge Planning.

(a) Three Admissions Within 180 Days. An individual admitted to an SMHF or a facility with a CPB three times within 180 days is considered at risk for future admission to inpatient services. To prevent the unnecessary admissions to an inpatient facility, the designated LMHA or LBHA must:

(1) during discharge planning, review the individual's previous recovery or treatment plans to determine the effectiveness of the clinical services received;

(2) include in the recovery or treatment plan:

(A) non-clinical supports, such as those provided by a peer specialist or recovery coach, identified to support the individual's ongoing recovery; and

(B) recommendations for services and interventions from the individual's current or previous care plan(s) that support the individual's strengths and goals and prevent unnecessary admission to an SMHF or facility with a CPB;

(3) determine the availability and level of care "type, amount, scope and duration" of clinical and non-clinical supports, such as those provided by a peer specialist or recovery coach, that promote ongoing recovery and prevent unnecessary admission to an SMHF or facility with a CPB; and

(4) consider appropriateness of the individual's continued stay in the SMHF or facility with a CPB.

(b) Nursing Facility Referral or Admission.

(1) In accordance with 42 CFR Part 483, Subpart C, and as described in 40 TAC Chapter 19, Subchapter BB (relating to Nursing Facility Responsibilities Related to Preadmission Screening and Resident Review (PASRR)), a nursing facility must coordinate with the referring entity to ensure the referring entity screens the individual for admission to the nursing facility before the nursing facility admits the individual.

(2) As the referring entity, the SMHF or facility with a CPB must complete a PASRR Level I Screening and forward the completed form in accordance with §303.301 of this title (relating to Referring Entity Responsibilities Related to the PASRR Process).

(3) The LMHA or LBHA must conduct a PASRR Level II Evaluation in accordance with Chapter 303 of this title.

(4) If a nursing facility admits an individual on an ATP, the designated LMHA or LBHA must conduct and document, including justification for its recommendations, the activities described in paragraphs (5) and (6) of this subsection.

(5) The designated LMHA or LBHA must make at least one face-to-face contact with the individual at the nursing facility on an ATP. The contact must consist of:

(A) a review of the individual's record at the nursing facility; and

(B) discussions with the individual and LAR, if any, the nursing facility staff, and other staff who provide care to the individual regarding:

(i) the individual's needs and the care the individual is receiving;

(ii) the ability of the nursing facility to provide the appropriate care;

(iii) the provision of mental health services, if needed by the individual; and

(iv) the individual's adjustment to the nursing facility.

(6) Before the end of the initial ATP period described in §306.206(b)(2) of this subchapter (relating to Absence for Trial Placement), the designated LMHA or LBHA must recommend to the SMHF or facility with a CPB one of the following:

(A) discharging the individual if the LMHA or LBHA determines that:

(i) the nursing facility is capable and willing to provide appropriate care to the individual after discharge;

(ii) any mental health services needed by the individual are being provided to the individual while residing in the nursing facility; and

(iii) the individual and LAR, if any, agrees to the nursing facility admission;

(B) extending the individual's ATP period in accordance with §306.206(b)(3) of this subchapter;

(C) returning the individual to the SMHF or facility with a CPB in accordance with §306.205 of this subchapter (relating to Pass or Furlough from a State Mental Health Facility or a Facility with a Contracted Psychiatric Bed); or

(D) initiating involuntary admission to the SMHF or facility with a CPB in accordance with §306.176 (relating to Admission Criteria for a Facility with a Contracted Psychiatric Bed Authorized by an LMHA or LBHA or for a State Mental Health Facility for Emergency Detention) and §306.177 (relating to Admission Criteria Under Order of Protective Custody or Court-ordered Inpatient Mental Health Services) of this subchapter.

(c) Assisted Living.

(1) An SMHF, facility with a CPB, LMHA, or LBHA may not refer an individual to an assisted living facility that is not licensed under the Texas Health and Safety Code, Chapter 247.

(2) As required by Texas Health and Safety Code §247.063(b), if an SMHF, facility with a CPB, LMHA, or LBHA gains knowledge of an assisted living facility not operated or licensed by the state, the SMHF, facility with a CPB, LMHA, or LBHA reports the name, address, and telephone number of the facility to HHSC Complaint and Incident Intake at 1-800-458-9858.

(d) Minors.

(1) To the extent permitted by medical privacy laws, the SMHF or facility with a CPB and designated LMHA or LBHA must make a reasonable effort to involve a minor's LAR or the LAR's designee in the treatment and discharge planning process.

(2) A minor committed to or placed in an SMHF or facility with a CPB under Texas Family Code, Chapter 55, Subchapter C or D, shall be discharged in accordance with the Texas Family Code, Chapter 55, Subchapter C or D as applicable.

(e) An individual suspected of having an ID. If an SMHF or facility with a CPB suspects an individual has an ID, the SMHF or facility with a CPB must notify the designated LMHA or LBHA continuity of care worker and the designated LIDDA to:

(1) assign a LIDDA continuity of care worker to the individual; and

(2) conduct an assessment in accordance with 40 TAC Chapter 5, Subchapter D (relating to Diagnostic Assessment).

(f) Criminal Code.

(1) Texas Code of Criminal Procedure, Chapter 46B: Incompetency to stand trial.

(A) The SMHF or facility with a CPB must discharge an individual committed under Texas Code of Criminal Procedure, Article 46B.102 (relating to Civil Commitment Hearing: Mental Illness), in accordance with Texas Code of Criminal Procedure, Article 46B.107 (relating to Release of Defendant after Civil Commitment).

(B) The SMHF or facility with a CPB must discharge an individual committed under Texas Code of Criminal Procedure, Article 46B.073 (relating to Commitment for Restoration to Competency), in accordance with Texas Code of Criminal Procedure, Article 46B.083 (relating to Supporting Commitment Information Provided by Facility or Program).

(C) For an individual committed under Texas Code of Criminal Procedure, Chapter 46B, discharged and returned to the committing court, the SMHF or facility with a CPB, within 24 hours after discharge, must notify the following of the discharge:

(i) the individual's designated LMHA or LBHA; and

(ii) the TCOOMMI.

(2) Texas Code of Criminal Procedure, Chapter 46C: Insanity defense. An SMHF or facility with a CPB must discharge an individual acquitted by reason of insanity and committed to an SMHF or facility with a CPB under Texas Code of Criminal Procedure, Chapter 46C, only upon order of the committing court in accordance with Texas Code of Criminal Procedure, Article 46C.268.

(g) Offenders with special needs following discharge from an SMHF or facility with a CPB. The LMHA or LBHA must comply with the requirements as defined by the LMHA's and LBHA's TCOOMMI contract for offenders with special needs.

(1) An LMHA or LBHA that receives a referral for an offender with special needs in the MH priority population from a county or city jail at least 24 hours before the individual's release must complete one of the following actions:

(A) if the offender with special needs is currently receiving LMHA or LBHA services, the LMHA or LMHA:

(i) notifies the offender with special needs of the county or city jail's referral;

(ii) arranges a face-to-face contact between the offender with special needs and a QMHP-CS to occur within 15 days after the individual's release; and

(iii) ensures that the QMHP-CS, at the face-to-face contact, re-assesses the individual and arranges for appropriate services, including transportation needs at the time of release.

(B) if the individual is not currently receiving LMHA or LBHA services from the LMHA or LBHA that is notified of the referral, the LMHA or LMHA:

(i) ensures that at the face-to-face contact required in subparagraph (A) of this paragraph, the QMHP-CS conducts a pre-admission assessment in accordance with §301.353(a) of this title (relating to Provider Responsibilities for Treatment Planning and Service Authorization); and

(ii) complies with §306.161(b) of this subchapter (relating to Screening and Assessment), as appropriate; or

(C) if the LMHA or LBHA does not conduct a face-to-face contact with the individual, the LMHA or LMHA must document the reasons for not doing so in the individual's record.

(2) If an LMHA or LBHA is notified of the anticipated release from prison or a state jail of an offender with special needs in the MH priority population who is currently taking psychoactive medication(s) for a mental illness and who will be released with a 30-day supply of the psychoactive medication(s), the LMHA or LBHA must arrange a face-to-face contact between the individual and QMHP-CS within 15 days after the individual's release.

(A) If the offender with special needs is released from state prison or state jail after hours or the LMHA or LBHA is otherwise unable to schedule the face-to-face contact before the individual's release, the LMHA or LBHA makes a good faith effort to locate and contact the individual. If the designated LMHA or LBHA does not have a face-to-face contact with the individual within 15 days, the LMHA or LBHA must document the reasons for not doing so in the individual's record.

(B) At the face-to-face contact:

(i) the QMHP-CS with appropriate supervision and training must perform an assessment in accordance with §301.353(a) of this title and comply with §306.161(b) and (c) of this subchapter, as appropriate; and

(ii) if the LMHA or LBHA determines that the offender with special needs should receive services immediately, the LMHA or LBHA must arrange for the individual to meet with a physician or designee authorized by state law to prescribe medication before the individual requires a refill of the prescription.

(C) If the LMHA or LBHA does not conduct a face-to-face contact with the offender with special needs, the LMHA or LBHA must document the reasons for not doing so in the individual's record.

(3) If the offender with special needs is on parole or probation, the SMHF or facility with a CPB must notify a representative of TCOOMMI before the discharge of the individual known to be on parole or probation.

§306.203.Discharge of an Individual Voluntarily Receiving Treatment.

(a) An SMHF or facility with a CPB must discharge an individual voluntarily receiving treatment if the administrator or designee of the SMHF or facility with a CPB concludes that the individual can no longer benefit from inpatient services based on the physician's determination, as delineated in Division 5 of this subchapter (relating to Discharge and Absences from a State Mental Health Facility or Facility with a Contracted Psychiatric Bed).

(b) If a written request for discharge is made by an individual voluntarily receiving treatment or the individual's LAR:

(1) the SMHF or facility with a CPB must discharge the individual in accordance with Texas Health and Safety Code §572.004; and

(2) the individual or individual's LAR signs, dates, and documents the time on the discharge request.

(c) In accordance with Texas Health and Safety Code §572.004, if an individual informs a staff member of an SMHF or facility with a CPB of the individual's desire to leave the SMHF or facility with a CPB, the SMHF or facility with a CPB must:

(1) as soon as possible, assist the individual in creating the written request and obtaining the necessary signature; and

(2) within four hours after a written request is made known to the SMHF or facility with a CPB, notify:

(A) the treating physician; or

(B) another physician who is an SMHF or facility with a CPB staff member, if the treating physician is not available during that time period.

(d) Results of physician notification required by subsection (c)(3) of this section.

(1) In accordance with Texas Health and Safety Code §572.004(c) and (d):

(A) an SMHF or facility with a CPB, based on a physician's determination, must discharge an individual within the four-hour time period described in subsection (c)(2) of this section; or

(B) if the physician who is notified in accordance with subsection (c)(2) of this section has reasonable cause to believe that the individual may meet the criteria for court-ordered inpatient mental health services or emergency detention, the physician must examine the individual as soon as possible, but no later than 24 hours, after the request for discharge is made known to the SMHF or facility with a CPB.

(2) Reasonable cause to believe that the individual may meet the criteria for court-ordered inpatient mental health services or emergency detention.

(A) If a physician does not examine an individual who may meet the criteria for court-ordered inpatient mental health services or emergency detention within 24 hours after the request for discharge is made known to the SMHF or the facility with a CPB, the facility must discharge the individual.

(B) If a physician, in accordance with Texas Health and Safety Code §572.004(d), examines the individual as described in paragraph (1)(B) of this subsection and determines that the individual does not meet the criteria for court-ordered inpatient mental health services or emergency detention, the SMHF or the facility with a CPB discharges the individual upon completion of the examination.

(C) If a physician, in accordance with Texas Health and Safety Code §572.004(d), examines the individual as described in paragraph (1)(B) of this subsection and determines that the individual meets the criteria for court-ordered inpatient mental health services or emergency detention, the SMHF or the facility with a CPB, by 4:00 p.m. on the next business day:

(i) if the SMHF or facility with a CPB intends to detain the individual, to file an application and obtain a court order for further detention of the individual in accordance with Texas Health and Safety Code §572.004(d), the physician:

(I) files an application for court-ordered inpatient mental health services or emergency detention and obtains a court order for further detention of the individual;

(II) notifies the individual of such intention; and

(III) documents in the individual's record the reasons for the decision to detain the individual; or

(ii) discharges the individual.

(e) In accordance with Texas Health and Safety Code §572.004(i), after a written request from a minor individual admitted under §306.175(a)(1)(B) of this subchapter (relating to Voluntary Admission Criteria for a Facility with a Contracted Psychiatric Bed Authorized by an LMHA or LBHA or for a State Mental Health Facility), the SMHF or facility with a CPB must:

(1) notify the minor's parent, managing conservator, or guardian of the request and:

(A) if the minor's parent, managing conservator, or guardian objects to the discharge, the minor continues treatment as a patient receiving voluntary treatment; or

(B) if the minor's parent, managing conservator, or guardian does not object to the discharge, the minor individual is discharged; and

(2) document the request in the minor's record.

(f) In accordance with Texas Health and Safety Code §572.004(f)(1), an SMHF or facility with a CPB is not required to complete the requirements described in this section if the individual makes a written statement withdrawing the request for discharge.

§306.204.Discharge of an Individual Involuntarily Receiving Treatment.

(a) Discharge from emergency detention.

(1) Except as provided by §306.178 of this subchapter (relating to Voluntary Treatment Following Involuntary Admission) and in accordance with Texas Health and Safety Code §573.021(b) and §573.023(b), an SMHF or facility with a CPB immediately discharges an individual under emergency detention if:

(A) the SMHF administrator, administrator of the facility with a CPB, or designee concludes, based on a physician's determination, the individual no longer meets the criteria in §306.176(c)(1) of this subchapter (relating to Admission Criteria for a Facility with a Contracted Psychiatric Bed Authorized by an LMHA or LBHA or for a State Mental Health Facility for Emergency Detention); or

(B) except as provided in paragraph (2) of this subsection:

(i) 48 hours has elapsed from the time the individual was presented to the SMHF or facility with a CPB; and

(ii) the SMHF or facility with a CPB has not obtained a court order for further detention of the individual.

(2) In accordance with Texas Health and Safety Code §573.021(b), if the 48-hour period described in paragraph (1)(B)(i) of this subsection ends on a Saturday, Sunday, or legal holiday, or before 4:00 p.m. on the next business day after the individual was presented to the SMHF or facility with a CPB, the SMHF or facility with a CPB detains the individual until 4:00 p.m. on such business day.

(b) Discharge under order of protective custody. Except as provided by §306.178 of this subchapter and in accordance with Texas Health and Safety Code §574.028, an SMHF or facility with a CPB immediately discharges an individual under an order of protective custody if:

(1) the SMHF administrator, facility with a CPB administrator, or designee determines that, based on a physician's determination, the individual no longer meets the criteria described in Texas Health and Safety Code §574.022(a);

(2) the SMHF administrator, facility with a CPB administrator, or designee does not receive notice that the individual's continued detention is authorized after a probable cause hearing held within the time period prescribed by Texas Health and Safety Code §574.025(b);

(3) a final order for court-ordered inpatient mental health services has not been entered within the time period prescribed by Texas Health and Safety Code §574.005; or

(4) an order to release the individual is issued in accordance with Texas Health and Safety Code §574.028(a).

(c) Discharge under court-ordered inpatient mental health services.

(1) Except as provided by §306.178 of this subchapter and in accordance with Texas Health and Safety Code §574.085 and §574.086(a), an SMHF or facility with a CPB immediately discharges an individual under a temporary or extended order for inpatient mental health services if:

(A) the order for inpatient mental health services expires; or

(B) the SMHF administrator, administrator of the facility with a CPB, or designee concludes that, based on a physician's determination, the individual no longer meets the criteria for court-ordered inpatient mental health services.

(2) In accordance with Texas Health and Safety Code §574.086(b), before discharging an individual in accordance with paragraph (1) of this subsection, the SMHF administrator, administrator of the facility with a CPB, or designee considers whether the individual should receive court-ordered outpatient mental health services in accordance with a modified order described in Texas Health and Safety Code §574.061.

(3) Individuals committed under Texas Code of Criminal Procedure, Chapter 46B or 46C may only be discharged as provided by §306.202(f) of this division (relating to Special Considerations for Discharge Planning).

(d) Discharge packet. An SMHF administrator, administrator of a facility with a CPB, or designee forwards a discharge packet, as provided in §306.201(h) of this division (relating to Discharge Planning), of any individual committed under the Texas Code of Criminal Procedure to the jail and the LMHA or LBHA in conjunction with state and federal privacy laws.

§306.205.Pass or Furlough from a State Mental Health Facility or a Facility with a Contracted Psychiatric Bed.

(a) In accordance with Texas Health and Safety Code §574.082, an SMHF administrator, administrator of a facility with a CPB, or designee may, in coordination with the designated LMHA or LBHA, authorize absences for an individual involuntarily admitted under court order for inpatient mental health services.

(1) If an individual's authorized absence is to exceed 72 hours, the SMHF or facility with a CPB notifies the committing court of the absence.

(2) The SMHF or facility with a CPB may not authorize an absence that exceeds the expiration date of the individual's order for inpatient mental health services.

(b) In accordance with Texas Health and Safety Code §574.083, an SMHF or facility with a CPB detains or readmits an individual if the SMHF administrator, administrator of the facility with a CPB, or the administrator's designee issues a certificate or affidavit establishing that the individual is receiving court-ordered inpatient mental health services and:

(1) the individual is absent without authority from the SMHF or facility with a CPB;

(2) the individual has violated the conditions of the absence; or

(3) the individual's condition has deteriorated to the extent that the individual's continued absence from the SMHF or facility with a CPB is inappropriate and there is a question of competency or willingness to consent to return, then the designated LMHA or SMHF must initiate involuntary admission in accordance with Texas Health and Safety Code, Chapter 573 or 574.

(c) In accordance with Texas Health and Safety Code §574.084, an individual's authorized absence that exceeds 72 hours may be revoked only after an administrative hearing held in accordance with this subsection.

(1) The SMHF or facility with a CPB conducts a hearing by a hearing officer who is a mental health professional not directly involved in treating the individual.

(2) The SMHF or facility with a CPB:

(A) holds an informal hearing within 72 hours after the individual returns to the facility;

(B) provides the individual and facility staff members an opportunity to present information supporting their position; and

(C) provides the individual the option to select another person or staff member to serve as the individual's advocate.

(3) Within 24 hours after the conclusion of the hearing, the hearing officer:

(A) determines if the individual violated the conditions of the authorized absence, the authorized absence was justified, or the individual's condition deteriorated to the extent the individual's continued absence was inappropriate; and

(B) renders the final decision in writing, including the basis for the hearing officer's decision.

(4) If the hearing officer's decision does not revoke the authorized absence, the individual may leave the SMHF or facility with a CPB pursuant to the conditions of the absence.

(5) The SMHF or facility with a CPB ensures the individual's record includes a copy of the hearing officer's report.

(d) Except in medical emergencies, only the committing criminal court may grant absences from a SMHF or facility with a CPB for individuals committed under Texas Code of Criminal Procedure, Chapter 46B or 46C.

§306.206.Absence for Trial Placement.

(a) An individual who is under consideration for discharge as described in §306.203 of this division (relating to Discharge of an Individual Voluntarily Receiving Treatment) or §306.204(c) of this division (relating to Discharge of an Individual Involuntarily Receiving Treatment), may leave the SMHF or facility with a CPB on ATP if the SMHF or facility with a CPB and the designated LMHA or LBHA agree that an ATP will be beneficial in implementing the individual's recovery or treatment plan. The designated LMHA or LBHA is responsible for monitoring the individual while on ATP.

(b) Time frames for ATP.

(1) An individual admitted under court-ordered inpatient mental health services may not be on ATP beyond the expiration date of the individual's order for inpatient mental health services.

(2) The initial ATP period for any individual may not exceed 30 days.

(3) The SMHF or facility with a CPB may extend an initial ATP period up to 30 days if:

(A) requested by the designated LMHA or LBHA; and

(B) clinically justified.

(4) Approval by the following persons is required for any ATP that exceeds 60 days:

(A) the SMHF administrator or designee, or the administrator of the facility with a CPB or designee; and

(B) the designated LMHA or LBHA executive director or designee.

(c) Only the committing criminal court may grant ATP from the SMHF or facility with a CPB for individuals committed under Texas Code of Criminal Procedure, Chapter 46B or 46C.

§306.207.Post Discharge or Absence for Trial Placement: Contact and Implementation of the Recovery or Treatment Plan.

The designated LMHA or LBHA is responsible for contacting the individual following discharge or ATP from an SMHF or a facility with a CPB and for implementing the individual's recovery or treatment plan in accordance with this section.

(1) LMHA or LBHA contact after discharge or ATP.

(A) The designated LMHA or LBHA makes face-to-face contact with an individual within seven days after discharge or ATP of an individual who is:

(i) discharged or on ATP from an SMHF or facility with a CPB and referred to the LMHA or LBHA for services or supports as indicated in the recovery or treatment plan;

(ii) discharged from an LMHA or LBHA-network provider of inpatient services and referred to the LMHA or LBHA for services or supports as indicated in the recovery or treatment plan;

(iii) discharged from an alternate provider of inpatient services and receiving LMHA or LBHA services from the designated LMHA or LBHA at the time of admission and who, upon discharge, is referred to the LMHA or LBHA for services or supports as indicated in the recovery or treatment plan;

(iv) discharged from the LMHA's or LBHA's crisis stabilization unit or any overnight crisis facility and referred to the LMHA or LBHA for services or supports as indicated in the discharge plan; or

(v) an offender with special needs discharged from an SMHF or facility with a CPB returning to jail.

(B) At the face-to-face contact after discharge required by subparagraph (A) of this paragraph, the designated LMHA or LBHA:

(i) re-assesses the individual;

(ii) ensures the provision of the services and supports specified in the individual's recovery or treatment plan by making the services and supports available and accessible as determined by the individual's level of care; and

(iii) assists the individual in accessing the services and supports specified in the individual's recovery or treatment plan.

(C) The designated LMHA or LBHA develops or reviews an individual's recovery or treatment plan in accordance with §301.353(e) of this title (relating to Provider Responsibilities for Treatment Planning and Service Authorization) and considers treatment recommendations in the SMHF or facility with a CPB's discharge plan within ten business days after the face-to-face contact required by subparagraph (A) of this paragraph.

(D) The designated LMHA or LBHA makes a good faith effort to locate and contact an individual who fails to appear for a face-to-face contact required by subparagraph (A) of this paragraph. If the designated LMHA or LBHA does not have a face-to-face contact with the individual, the LMHA or LBHA documents the attempts made and reasons the face-to-face contact did not occur in the individual's record.

(2) For an individual whose recovery or treatment plan identifies the designated LMHA or LBHA as responsible for providing or paying for the individual's psychoactive medications, the designated LMHA or LBHA is responsible for ensuring:

(A) the provision of psychoactive medications for the individual; and

(B) the individual has an appointment with a physician or designee authorized by state law to prescribe medication before the earlier of the following events:

(i) the individual's supply of psychoactive medication from the SMHF or facility with a CPB has been depleted; or

(ii) the 15th day after the individual is on ATP or discharged from the SMHF or facility with a CPB.

(3) The designated LMHA or LBHA documents in an individual's record the LMHA's or LBHA's activities described in this section, and the individual's responses to those activities.

The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on April 30, 2020.

TRD-202001726

Karen Ray

Chief Counsel

Health and Human Services Commission

Effective date: May 20, 2020

Proposal publication date: November 29, 2019

For further information, please call: (512) 838-4349


DIVISION 6. TRAINING

26 TAC §306.221

STATUTORY AUTHORITY

The new section is adopted under Texas Government Code §531.0055, which provides that the Executive Commissioner of HHSC shall adopt rules for the operation and provision of services by the health and human services agencies. In addition, Texas Health and Safety Code §534.053 requires the Executive Commissioner of HHSC to adopt rules ensuring the provision of community-based mental health services and §534.058 authorizes the Executive Commissioner to develop standards of care for services provided by LMHAs and their subcontractors.

The new section implements Texas Government Code §531.0055 and Texas Health and Safety Code §534.053 and §534.058.

§306.221.Screening and Intake Assessment Training Requirements at a State Mental Health Facility and a Facility with a Contracted Psychiatric Bed.

(a) Screening training. As required by Texas Health and Safety Code §572.0025(e), an SMHF or facility with a CPB staff member whose responsibilities include conducting a screening described in Division 3 of this subchapter (relating to Admission to a State Mental Health Facility or Facility with a Contracted Psychiatric Bed--Provider Responsibilities) must receive at least eight hours of training in the SMHF's or facility with a CPB's screening.

(1) The screening training must provide instruction regarding:

(A) obtaining relevant information about the individual, including information about finances, third-party coverage or insurance benefits, and advance directives;

(B) explaining, orally and in writing, the individual's rights described in 25 TAC Chapter 404, Subchapter E (relating to Rights of Persons Receiving Mental Health Services);

(C) explaining, orally and in writing, the SMHF's or facility with a CPB's services and treatment as they relate to the individual;

(D) explaining, orally and in writing, the existence, purpose, telephone number, and address of the protection and advocacy system established in Texas, pursuant to Texas Health and Safety Code §576.008; and

(E) determining whether an individual comprehends the information provided in accordance with subparagraphs (B) - (D) of this paragraph.

(2) Up to six hours of the following training may count toward the screening training required by this subsection:

(A) 25 TAC §417.515 (relating to Staff Training in Identifying, Reporting, and Preventing Abuse, Neglect, and Exploitation); and

(B) 25 TAC §404.165 (relating to Staff Training in Rights of Persons Receiving Mental Health Services).

(b) Intake assessment training. As required by Texas Health and Safety Code §572.0025(e), if an SMHF or facility with a CPB's internal policy permits an assessment professional to determine whether a physician should conduct an examination on an individual requesting voluntary admission, the assessment professional must receive at least eight hours of training in conducting an intake assessment pursuant to this subchapter.

(1) The intake assessment training must provide instruction regarding assessing and diagnosing in accordance with §301.353 of this title (relating to Provider Responsibilities for Treatment Planning and Service Authorization).

(2) An assessment professional must receive intake training:

(A) before conducting an intake assessment; and

(B) annually throughout the professional's employment or association with the SMHF or facility with a CPB.

(c) Documentation of training. An SMHF or facility with a CPB must document that each staff member and each assessment professional whose responsibilities include conducting the screening or intake assessment have successfully completed the training described in subsections (a) and (b) of this section, including:

(1) the date of the training;

(2) the length of the training session; and

(3) the name of the instructor.

(d) Performance in accordance with training. Each staff member and each assessment professional whose responsibilities include conducting the screening or intake assessment must perform the assessments in accordance with the training required by this section.

The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on April 30, 2020.

TRD-202001727

Karen Ray

Chief Counsel

Health and Human Services Commission

Effective date: May 20, 2020

Proposal publication date: November 29, 2019

For further information, please call: (512) 838-4349


CHAPTER 748. MINIMUM STANDARDS FOR GENERAL RESIDENTIAL OPERATIONS

SUBCHAPTER D. REPORTS AND RECORD KEEPING

The Texas Health and Human Services Commission (HHSC) adopts the repeal of §748.301, new §748.301, amendments to §748.303 and §748.313, and new Division 6, Unauthorized Absences, consisting of new §§748.451, 748.453, 748.455, 748.457, 748.459, 748.461, and 748.463.

New §§748.301, 748.453, 748.455, 748.461, and 748.463; and amendments to §748.303 are adopted with changes to the proposed text as published in the December 27, 2019, issue of the Texas Register (44 TexReg 8200). These rules will be republished.

The repeal of §748.301; amendments to §748.313; and new §§748.451, 748.457, and 748.459 are adopted without changes to the proposed text as published in the December 27, 2019, issue of the Texas Register (44 TexReg 8200). These rules will not be republished.

BACKGROUND AND JUSTIFICATION

The repeal, amendments, and new sections will address the issue of unauthorized absences of children from General Residential Operations (GROs) by requiring GROs to take additional actions when a child leaves the operation without permission (unauthorized absence). Current rules require GROs to document when a child is absent and cannot be located for a specified timeframe, depending on the age and development level of the child. The repeal, amendments, and new sections will include additional requirements, such as: documenting each time a child has an unauthorized absence, regardless of the length of time the child is absent; maintaining an annual log of each unauthorized absence; debriefing the child after each unauthorized absence; conducting a triggered review for each child who has had three unauthorized absences within a 60-day timeframe, to examine alternatives and create a written plan to reduce the number of unauthorized absences; and conducting an evaluation, every six months, of the frequency and patterns of unauthorized absences within each GRO.

COMMENTS

The 31-day comment period ended January 27, 2020. During this period, HHSC received comments regarding the proposed rules from seven commenters, including Upbring, Willow Bend Center, Texas Alliance for Child and Family Services, Disability Rights Texas, Texas Appleseed, Devereux Advanced Behavioral Health Texas, and the Texas Department of Family and Protective Services (DFPS). Several of the commenters had multiple comments. A summary of comments relating to the rules and HHSC's responses follows.

Comment: Four commenters generally supported the intent and purpose of the rule changes, which further trauma informed practices for tracking and caring for children who run away from residential care.

Response: HHSC appreciates the support of the rules.

Comment: Two commenters generally commented on the new review process. Both commenters recommended a more robust process, which would include an outside review of reoccurring unauthorized absences. One of the commenters specifically recommended a review by DFPS specialists; making the annual summary log available to outside experts, regardless of whether the Child Care Licensing Department of HHSC (Licensing) requested the log; requiring outside experts to participate in triggered reviews; requiring a triggered review after two unauthorized absences (the commenter did not note a timeframe for the triggered review to occur) instead of after three unauthorized absences within a 60-day timeframe; and reporting triggered reviews to Licensing. The second commenter recommended that a more robust process include outside reviews to determine whether the operation has any undetected issues, address unmet needs or hidden abuse or neglect, and determine how unauthorized absences affect the child's service plan.

Response: HHSC disagrees with the comments and declines to revise the rules, including not revising the proposed requirement of a triggered review after three unauthorized absences within 60 days. However, HHSC understands that the triggered review process will be new and may require revisions in the future. The commenters may not understand the respective roles of Licensing and DFPS. Because Licensing's role is regulatory, Licensing must create a process whereby an operation is responsible for implementing actions that prevent future unauthorized absences, regardless of whether the operation cares for children who are in DFPS conservatorship. Additionally, Licensing does not regulate DFPS oversight of children in the role of a managing conservator. Regarding the comment that a DFPS specialist participate in the review, new §748.459 requires an operation to notify the parent of a child, which is defined as "a person who has legal responsibility for or legal custody of a child, including the managing conservator or legal guardian," at least two weeks before the triggered review. In addition to the triggered review described in these rules, DFPS has a process for a child in DFPS conservatorship where DFPS staff, the child, and other supports for the child meet. This meeting allows the child an opportunity to discuss how DFPS can support the child so unauthorized absences do not continue to occur (sometimes called a Recovery Round Table). With respect to the possibility of outside reviews, an operation cannot make an annual summary log available to outside experts since the logs are confidential because they contain the names of multiple children. Regarding reporting triggered reviews to Licensing, the Licensing oversight of the process will occur through routine monitoring inspections and investigations and does not require the operation to report each triggered review to Licensing. DFPS will have an opportunity to monitor what transpires during a triggered review when DFPS is invited to attend in its role as the managing conservator of children.

Comment: Regarding §748.301(3), three commenters wanted further clarification regarding the definition of an "unauthorized absence." The concerns whether an operation must report a child as an unauthorized absence if the child is still on the operation's grounds, but not where the child is authorized to be; if the child is still within the eyesight of the operation's staff, even if the child is off of the operation's grounds; or if the staff lose sight of the child and the child is off the operation's grounds.

Response: HHSC agrees in part and disagrees in part with the comment. HHSC wrote the definition with some flexibility, because operations will have to exercise discretion based on the history of the child. The definition of an "unauthorized absence" has two parts. First, the child must be absent from the operation without permission. Second, staff cannot locate the child. Although an "operation" would include an operation's grounds, HHSC agrees to clarify that the child must be absent from "the grounds of" an operation and revises the rule accordingly. It is already sufficiently clear that staff can locate a child who is within their eyesight, so this would not be an unauthorized absence. Although the issue may be more complicated when a child is not within the eyesight of staff, operations can use their best judgment based on the totality of the circumstances on a case-by-case basis to determine if there is an unauthorized absence. For example, if a teenager is routinely late in returning to the operation from an extracurricular activity, the operation would likely take this routine into account when assessing the possibility of an unauthorized absence. HHSC declines to make any other revisions to the rule but will add to the Minimum Standards on the HHSC Provider webpage a Helpful Information box after the rule to further clarify the issue.

Comment: Regarding §748.303 generally, one commenter stated that the current reporting structure does not capture all relevant unauthorized absences, which could be instrumental in preventing future unauthorized absences. The commenter did not request any rule changes.

Response: It is true that operations do not currently report all unauthorized absences to Licensing, which is why HHSC proposed these rule changes. New §748.303(c), and other rule changes, will now require all operations to document any unauthorized absences that are not reported to Licensing, debrief the child after every unauthorized absence, have triggered reviews under certain circumstances, and have overall operation evaluations every six months.

Comment: Regarding §748.303(a)(6), one commenter stated that "being issued a ticket at school by law enforcement or any other citation that does not result in the child being detained" should not be excluded from being reported to Licensing and the child's parent (the definition of a parent also includes the managing conservator of the child, which in many instance is DFPS), because DFPS and the operation are poised to help improve service plans for youth and need to be aware of any involvement with law enforcement.

Response: HHSC did not propose this paragraph for change and declines to revise it at this time. However, Licensing will consider the comment during the current comprehensive review project for Chapter 748. This will ensure the public has the opportunity to comment on any proposed change.

Comment: Regarding §748.303(a)(8) and (9), three commenters stated the timeframes for reporting unauthorized absences of children 6 - 12 years old to law enforcement should be changed from two hours to immediately, and for children 13 years old and older should be changed from six hours to immediately, but no later than two hours after the child is not on the operation's grounds. Two commenters want this absence reported even if the child is no longer missing.

Response: HHSC did not propose these paragraphs for change and declines to revise them at this time. However, Licensing will consider the comments during the current comprehensive review project for Chapter 748. This will ensure the public has the opportunity to comment on any proposed changes. Note: The timeframe for reporting unauthorized absences of children 13 years old and older was changed from 24 hours to six hours, in 2017.

Comment: Regarding §748.303(d)(1), one commenter stated that directing operations to report serious incidents of adult residents to law enforcement "as outlined in the chart above" is ambiguous because the chart discusses minors.

Response: HHSC did not propose this paragraph for change and declines to revise it at this time. However, Licensing will consider the comment during the current comprehensive review project for Chapter 748. This will ensure the public has the opportunity to comment on any proposedchange.

Comment: Regarding §748.303(d)(2), one commenter stated that directing operations to report serious incidents of adult residents to the parent is only correct if the parent is the legally authorized representative. If not, and the adult resident is incapable of making decisions about their own care, the case should be reported to the Probate Court, or other appropriate court, for resolution.

Response. HHSC did not propose this paragraph for change and declines to revise it at this time. However, Licensing will consider the comment during the current comprehensive review project for Chapter 748. This will ensure the public has the opportunity to comment on any proposed change.

Comment: Regarding §748.303(e)(5), one commenter stated that §748.303(e)(5) and §749.503(e)(5) have slight variations in the wording, which causes the rule to be unclear and vague.

Response: HHSC agrees with the comment and is making the recommended revisions. Though HHSC did not propose this paragraph for change, the revisions are editorial and do not change the meaning of the rule.

Comment: Regarding §748.313(2), one commenter stated the documentation requirements for a short personal restraint that results in substantial physical injury should be consistent with the emergency behavior intervention documentation requirements in §748.2855.

Response: HHSC did not propose this paragraph for change and declines to revise it at this time. However, Licensing will consider the comment during the current comprehensive review project for Chapter 748. This will ensure the public has the opportunity to comment on any proposed change.

Comment: Regarding §748.453(a), one commenter wanted to know if HHSC will provide an outline or spreadsheet with the requirements of the annual summary log.

Response: HHSC will provide a sample form that includes the requirements for the annual summary log.

Comment: Regarding §748.453(a)(5), one commenter suggested adding the police report number to the annual summary log when law enforcement is contacted and adding an intake report number for unauthorized absences reported to Licensing or DFPS.

Response: HHSC agrees with the comment and revises the rule accordingly.

Comment: Regarding §748.455(a), one commenter wondered if the operation could use a Recovery Round Table held by DFPS in place of the required debriefing of a child.

Response: No revision to the rule is required. Though a DFPS Recovery Round Table may be similar to the required debriefing, the operation cannot use it in place of the debriefing because the Recovery Round Table does not have to be completed immediately, the requirements of the round table are not identical to the requirements of a debriefing, and the round table is not regulated by Licensing.

Comment: Regarding §§748.455(a)(2), 748.461(3), and 748.463(b)(1) and (c)(2), one commenter stated the most effective services that an operation provides are evidence-based, trauma informed supports that aim to address a child's behavioral symptoms prior to or during placement. The commenter stated that the strategies that a child can use to avoid future unauthorized absences, and those used in triggered reviews and overall evaluations, should be evidence-based and trauma informed.

Response: HHSC agrees in part and disagrees in part with the comment. An operation must already integrate trauma informed practices into the care, treatment, and management of each child (See §748.1337(a)). Accordingly, HHSC agrees that any strategies or alternatives used to prevent unauthorized absences, and the environment that supports positive and constructive behavior of children in care, must be trauma informed. HHSC revises the rules to make the requisite revisions regarding trauma informed care. However, determining whether these strategies or alternatives are evidence-based would be difficult if not impossible to verify; therefore, HHSC declines to revise the rules to include the term "evidence-based."

Comment: Regarding §748.455(a)(4), one commenter suggested an addition to the rule stating that if a child discloses that abuse or neglect occurred during an unauthorized absence, then the caregiver or other person conducting the debriefing should end the debriefing and report the allegation to DFPS.

Response: HHSC appreciates the commenter's sensitivity to the DFPS responsibility for investigating allegations of abuse and neglect. Accordingly, HHSC will add a helpful information box to the Minimum Standards on the HHSC Provider webpage to clarify that if a child discloses that abuse or neglect may have occurred during an unauthorized absence, the caregiver or other person conducting the debriefing must make a report to DFPS and not ask additional questions regarding the abuse and neglect. However, the caregiver or other person conducting the debriefing, must complete the remaining requirements of the debriefing.

Comment: Regarding §748.455(b), one commenter was against all children returning to routine activities after an unauthorized absence, because doing so would increase the risk of another unauthorized absence and send the message that there are no consequences for this high-risk behavior. The commenter suggested allowing for restriction of routine activities, for at least a few days, without a treatment team decision and up to 30 days with a treatment team review.

Response: HHSC disagrees with the comment and declines to revise the rule. Preventing a child from going back to routine activities does not meet the current requirement of trauma informed care. In addition, the rule already provides an exception when a caregiver determines and documents that a particular routine activity would be inappropriate because of the child's condition following an unauthorized absence, or something that occurred during the unauthorized absence.

Comment: Regarding §748.463, one commenter wanted to know if HHSC would provide a form for the six-month overall operation evaluation.

Response: HHSC will not provide a sample form, because an overall operation evaluation could be very different from one operation to another.

Comment: One commenter stated that the fiscal impact did not include any impact regarding the provider's and DFPS case worker's time involved in debriefings (§748.455) and triggered reviews (§748.459).

Response: HHSC disagrees with the comment and no revisions to the rule will be made. HHSC assumes that, as a best practice, all providers and DFPS caseworkers currently debrief a child after an unauthorized absence. During a workgroup meeting, this assumption was verified. The new rule (§748.455) does specify what a debriefing must consist of, but the rule does not contemplate that additional time will be required to complete the debriefing. HHSC costed out an operation's case manager's time in the fiscal impact for triggered reviews (§748.459). This rule also requires participation of the person that is designated to make decisions regarding the child's participation in childhood activities. This person may or may not be employed by the provider. If employed by the provider, the costs would be very similar to the case manager's costs. The participation of DFPS caseworkers is not mandatory. However, as DFPS is currently focusing resources on issues with unauthorized absences, it is anticipated that any additional duties can be absorbed within existing resources.

DIVISION 1. REPORTING SERIOUS INCIDENTS AND OTHER OCCURRENCES

26 TAC §748.301

STATUTORY AUTHORITY

The repeal is adopted under Texas Government Code §531.0055, which provides that the Executive Commissioner of HHSC shall adopt rules for the operation and provision of services by the health and human services agencies, and Human Resources Code (HRC), §42.042, which provides that the Executive Commissioner of HHSC shall adopt rules to carry out the provisions of HRC, Chapter 42.

The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on May 4, 2020.

TRD-202001761

Karen Ray

Chief Counsel

Health and Human Services Commission

Effective date: June 1, 2020

Proposal publication date: December 27, 2019

For further information, please call: (512) 438-5559


DIVISION 1. REPORTING SERIOUS INCIDENTS AND OTHER OCCURRENCES

26 TAC §§748.301, 748.303, 748.313

STATUTORY AUTHORITY

The amendments and new section are adopted under Texas Government Code §531.0055, which provides that the Executive Commissioner of HHSC shall adopt rules for the operation and provision of services by the health and human services agencies, and Human Resources Code (HRC), §42.042, which provides that the Executive Commissioner of HHSC shall adopt rules to carry out the provisions of HRC, Chapter 42.

§748.301.What do certain terms mean in this subchapter?

These terms have the following meanings in this subchapter:

(1) Serious incident--A non-routine occurrence that has or may have dangerous or significant consequences for the care, supervision, or treatment of a child. The different types of serious incidents are noted in §748.303 of this division (relating to When must I report and document a serious incident?).

(2) Triggered review of a child's unauthorized absences--A review of a specific child's pattern of unauthorized absences when the child has had three unauthorized absences within a 60-day timeframe.

(3) Unauthorized absence--A child is absent from the grounds of an operation without permission from a caregiver and cannot be located. This includes when an unauthorized person has removed the child from the operation.

§748.303.When must I report and document a serious incident?

(a) You must report and document the following types of serious incidents involving a child in your care. The reports must be made to the following entities, and the reporting and documenting must be within the specified timeframes:

Figure: 26 TAC §748.303(a) (.pdf)

(b) If there is a medically pertinent incident, such as a seizure, that does not rise to the level of a serious incident, you do not have to report the incident but you must document the incident in the same manner as for a serious incident, as described in §748.311 of this division (relating to How must I document a serious incident?).

(c) You must document an unauthorized absence that does not meet the reporting time requirements defined in subsection (a)(7) - (9) of this section within 24 hours after you become aware of the unauthorized absence. You must document the absence:

(1) In the same manner as for a serious incident, as described in §748.311 of this division; and

(2) Complete an addendum to the serious incident report to finalize the documentation requirements, if the child returns to an operation after 24 hours.

(d) If there is a serious incident involving an adult resident, you do not have to report the incident to Licensing, but you must document the incident in the same manner as a serious incident. You do have to report the incident to:

(1) Law enforcement, as outlined in the chart above;

(2) The parents, if the adult resident is not capable of making decisions about the resident's own care; and

(3) Adult Protective Services through the Texas Abuse and Neglect Hotline if there is reason to believe the adult resident has been abused, neglected or exploited.

(e) You must report and document the following types of serious incidents involving your operation, an employee, a professional level service provider, contract staff, or a volunteer to the following entities within the specified timeframe:

Figure: 26 TAC §748.303(e) (.pdf)

The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on May 4, 2020.

TRD-202001762

Karen Ray

Chief Counsel

Health and Human Services Commission

Effective date: June 1, 2020

Proposal publication date: December 27, 2019

For further information, please call: (512) 438-5559


DIVISION 6. UNAUTHORIZED ABSENCES

26 TAC §§748.451, 748.453, 748.455, 748.457, 748.459, 748.461, 748.463

STATUTORY AUTHORITY

The amendments and new section are adopted under Texas Government Code §531.0055, which provides that the Executive Commissioner of HHSC shall adopt rules for the operation and provision of services by the health and human services agencies, and Human Resources Code (HRC), §42.042, which provides that the Executive Commissioner of HHSC shall adopt rules to carry out the provisions of HRC, Chapter 42.

§748.453.What documentation must be included in an annual summary log for a child who has an unauthorized absence?

(a) For each unauthorized absence during the relevant year, you must document the following information in an annual summary log:

(1) The name, age, gender, and date of admission of the child who was absent;

(2) The time and date the unauthorized absence was discovered;

(3) How long the child was gone or if the child did not return;

(4) The name of the caregiver responsible for the child at the time the child's absence was discovered;

(5) The intake report number, if a report was made to Licensing or the Department of Family and Protective Services; and

(6) Whether law enforcement was contacted, including the name of any law enforcement agency that was contacted and the number of the police report, if applicable.

(b) You must maintain each annual summary log for five years.

(c) You must make the annual summary logs available to Licensing for review and reproduction, upon request.

§748.455.What are the requirements for debriefing a child after an unauthorized absence?

(a) After a child returns to an operation from an unauthorized absence, the caregiver, or other appropriate person, must conduct a debriefing with the child as soon as possible, but no later than 24 hours after the child's return. The purpose of the debriefing is for the child and the caregiver, or other appropriate person, to discuss the following:

(1) The circumstances that led to the child's unauthorized absence;

(2) The trauma informed strategies the child can use to avoid future unauthorized absences and how the operation can support those strategies;

(3) The child's condition; and

(4) What occurred while the child was away from the operation, including where the child went, who was with the child, the child's activities, and any other information that may be relevant to the child's health and safety.

(b) The caregiver must allow the child to return to routine activities, excluding any activity that the caregiver determines would be inappropriate because of the child's condition following the unauthorized absence or something that occurred during the unauthorized absence.

(c) The debriefing must be documented in the child's record, including any routine activity that would be inappropriate for the child to return to and the explanation for why the activity is inappropriate.

§748.461.What must a triggered review of a child's unauthorized absences include?

A triggered review of a child's unauthorized absences must include the following:

(1) A review of the child's records documenting previous unauthorized absences, including previous debriefings;

(2) A review of service plan elements identified in §748.1337(b)(1)(D) and (H) and, as applicable, §748.1337(b)(2) and (3) of this chapter (relating to What must a child's initial service plan include?);

(3) An examination of trauma informed alternatives to minimize the unauthorized absences of the child; and

(4) A written plan to reduce the unauthorized absences of the child, which you must document in the child's record.

§748.463.What is an overall operation evaluation for unauthorized absences?

(a) Every six months, you must conduct an overall operation evaluation for unauthorized absences that have occurred at your operation during that time period.

(b) The objectives of the evaluation are to:

(1) Develop and maintain a trauma informed environment that supports positive and constructive behaviors by children in care; and

(2) Ensure the overall safety and well-being of children in care.

(c) The evaluation must include:

(1) The frequency and patterns of unauthorized absences of children in your operation; and

(2) Specific trauma informed strategies to reduce the number of unauthorized absences in your operation.

(d) You must maintain the results of each six-month overall operation evaluation for unauthorized absences for five years.

(e) You must make the results of each overall operation evaluation for unauthorized absences available to Licensing for review and reproduction, upon request.

The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on May 4, 2020.

TRD-202001763

Karen Ray

Chief Counsel

Health and Human Services Commission

Effective date: June 1, 2020

Proposal publication date: December 27, 2019

For further information, please call: (512) 438-5559


CHAPTER 749. MINIMUM STANDARDS FOR CHILD-PLACING AGENCIES

SUBCHAPTER D. REPORTS AND RECORD KEEPING

The Texas Health and Human Services Commission (HHSC) adopts the repeal of §749.501, new §749.501, amendments to §749.503 and §749.513, and new Division 5, Unauthorized Absences, consisting of new §§749.590 - 749.596.

Amendments to §749.503 and new §§749.591, 749.592, 749.595, and 749.596 are adopted with changes to the proposed text as published in the December 27, 2019, issue of the Texas Register (44 TexReg 8205). These rules will be republished.

The repeal of §749.501; new §§749.501, 749.590, 749.593, and 749.594; and amendments to §749.513 are adopted without changes to the proposed text as published in the December 27, 2019, issue of the Texas Register (44 TexReg 8205). These rules will not be republished.

BACKGROUND AND JUSTIFICATION

The repeal, amendments, and new sections address the issue of unauthorized absences of children in foster homes by requiring child-placing agencies (CPAs) to take additional actions when a child leaves a foster home without permission (unauthorized absence). Current rules require CPAs to document when a child is absent and cannot be located for a specified timeframe, depending on the age and development level of the child. The repeal, amendments, and new sections will include additional requirements for a CPA, such as: documenting each time a child has an unauthorized absence, regardless of the length of time the child is absent; maintaining an annual log of each unauthorized absence; debriefing the child after each unauthorized absence; conducting a triggered review for each child who has had three unauthorized absences within a 60-day timeframe, to examine alternatives and create a written plan to reduce the number of unauthorized absences; and conducting an evaluation, every six months, of the frequency and patterns of unauthorized absences from the CPA's foster homes.

COMMENTS

The 31-day comment period ended January 27, 2020. During this period, HHSC received comments regarding the proposed rules from five commenters, including Upbring, Texas Alliance for Child and Family Services, Disability Rights Texas, Texas Appleseed, and the Texas Department of Family and Protective Services (DFPS). Several of the commenters had multiple comments. A summary of comments relating to the rules and HHSC's responses follows.

Comment: Four commenters generally supported the intent and purpose of the rule changes, which further trauma informed practices for tracking and caring for children who run away from residential care.

Response: HHSC appreciates the support of the rules.

Comment: Two commenters generally commented on the new review process. Both commenters recommended a more robust process, which would include an outside review of reoccurring unauthorized absences. One of the commenters specifically recommended a review by DFPS specialists; making the annual summary log available to outside experts, regardless of whether the Child Care Licensing Department of HHSC (Licensing) requested the log; requiring outside experts to participate in triggered reviews; requiring a triggered review after two unauthorized absences (the commenter did not note a timeframe for the triggered review to occur) instead of after three unauthorized absences within a 60-day timeframe; and reporting triggered reviews to Licensing. The second commenter recommended that a more robust process include outside reviews to determine whether there are any undetected issues, address unmet needs or hidden abuse or neglect, and determine how unauthorized absences affect the child's service plan.

Response: HHSC disagrees with the comments and declines to revise the rules, including not revising the proposed requirement of a triggered review after three unauthorized absences within 60 days. However, HHSC understands that the triggered review process will be new and may require revisions in the future. The commenters may not understand the respective roles of Licensing and DFPS. Because Licensing's role is regulatory, Licensing must create a process whereby a CPA is responsible for implementing actions that prevent future unauthorized absences, regardless of whether the children are in DFPS conservatorship. Additionally, Licensing does not regulate DFPS oversight of children in the role of a managing conservator. Regarding the comment that a DFPS specialist participate in the review, new §749.594 requires a CPA to notify the parent of a child, which is defined as "a person who has legal responsibility for or legal custody of a child, including the managing conservator or legal guardian," at least two weeks before the triggered review. In addition to the triggered review described in these rules, DFPS has a process for a child in DFPS conservatorship where DFPS staff, the child, and other supports for the child meet. This meeting allows the child an opportunity to discuss how DFPS can support the child, so unauthorized absences do not continue to occur (sometimes called a Recovery Round Table). With respect to the possibility of outside reviews, a CPA cannot make an annual summary log available to outside experts since the logs are confidential because they contain the names of multiple children. Regarding reporting triggered reviews to Licensing, the Licensing oversight of the process will occur through routine monitoring inspections and investigations and does not require the CPA to report each triggered review to Licensing. DFPS will have an opportunity to monitor what transpires during a triggered review when DFPS is invited to attend in its role as the managing conservator of children.

Comment: Regarding §749.503 generally, one commenter stated that the current reporting structure does not capture all relevant unauthorized absences, which could be instrumental in preventing future unauthorized absences. The commenter did not request any rule changes.

Response: It is true that CPAs do not currently report all unauthorized absences to Licensing, which is why HHSC proposed these rule changes. New §749.503(c), and other rule changes, will now require all CPAs to document any unauthorized absences that are not reported to Licensing, debrief the child after every unauthorized absence, have triggered reviews under certain circumstances, and have overall agency evaluations every six months.

Comment: Regarding §749.503(a)(6), one commenter stated that "being issued a ticket at school by law enforcement or any other citation that does not result in the child being detained" should not be excluded from being reported to Licensing and the child's parent (the definition of a parent also includes the managing conservator of the child, which in many instance is DFPS), because DFPS, the CPA, and the foster parents are poised to help improve service plans for youth and need to be aware of any involvement with law enforcement.

Response: HHSC did not propose this paragraph for change and declines to revise it at this time. However, Licensing will consider the comment during the current comprehensive review project for Chapter 749. This will ensure the public has the opportunity to comment on any proposed change.

Comment: Regarding §749.503(a)(8) and (9), three commenters stated the timeframes for reporting unauthorized absences of children 6 - 12 years old to law enforcement should be changed from two hours to immediately, and for children 13 years old and older should be changed from six hours to immediately, but no later than two hours after the child is not at the foster home. Two commenters want this absence reported even if the child is no longer missing.

Response: HHSC did not propose these paragraphs for change and declines to revise them at this time. However, Licensing will consider the comments during the current comprehensive review project for Chapter 749. This will ensure the public has the opportunity to comment on any proposed changes. Note: The timeframe for reporting unauthorized absences for children 13 years old and older was changed from 24 hours to six hours, in 2017.

Comment: Regarding §749.503(d)(1), one commenter stated that directing CPAs to report serious incidents of adult residents to law enforcement "as outlined in the chart above" is ambiguous because the chart discusses minors.

Response: HHSC did not propose this paragraph for change and declines to revise it at this time. However, Licensing will consider the comment during the current comprehensive review project for Chapter 749. This will ensure the public has the opportunity to comment on any proposed change.

Comment: Regarding §749.503(d)(2), one commenter stated that directing CPAs to report serious incidents of adult residents to the parent is only correct if the parent is the legally authorized representative. If not, and the adult resident is incapable of making decisions about their own care, the case should be reported to the Probate Court, our other appropriate court, for resolution.

Response: HHSC did not propose this paragraph for change and declines to revise it at this time. However, Licensing will consider the comment during the current comprehensive review project for Chapter 749. This will ensure the public has the opportunity to comment on any proposed change.

Comment: Regarding §749.503(e)(5), one commenter stated that §748.303(e)(5) and §749.503(e)(5) have slight variations in the wording, which causes the rule to be unclear and vague.

Response: HHSC agrees with the comment and is making the recommended revisions. Though HHSC did not propose this paragraph for change, the revisions are editorial and do not change the meaning of the rule.

Comment: Regarding §749.513(2), one commenter stated the documentation requirements for a short personal restraint that results in substantial physical injury should be consistent with the emergency behavior intervention documentation requirements in §749.2305.

Response: HHSC did not propose this paragraph for change and declines to revise it at this time. However, Licensing will consider the comment during the current comprehensive review project for Chapter 749. This will ensure the public has the opportunity to comment on any proposed change.

Comment: Regarding §749.591(a), one commenter wanted to know if HHSC will provide an outline or spreadsheet with the requirements of the annual summary log.

Response: HHSC will provide a sample form that includes the requirements for the annual summary log.

Comment: Regarding §749.591(a)(5), one commenter suggested adding the police report number to the annual summary log when law enforcement is contacted and adding an intake report number for unauthorized absences reported to Licensing or DFPS.

Response: HHSC agrees with the comment and revises the rule accordingly.

Comment: Regarding §749.592(a), one commenter wondered if a CPA could use a Recovery Round Table held by DFPS in place of the required debriefing of a child.

Response: No revision to the rule is required. Though a DFPS Recovery Round Table may be similar to the required debriefing, a CPA cannot use it in place of the debriefing, because the Recovery Round Table does not have to be completed immediately, the requirements of the round table are not identical to the requirements of a debriefing, and the round table is not regulated by Licensing.

Comment: Regarding §§749.592(a)(2), 749.595(3), and 749.596(b)(1) and (c)(2), one commenter stated the most effective services that a foster home or CPA provides are evidence-based, trauma informed supports that aim to address a child's behavioral symptoms prior to or during placement. The commenter stated that the strategies that a child can use to avoid further unauthorized absences, and those used in triggered reviews and overall evaluations, should be evidence-based and trauma informed.

Response: HHSC agrees in part and disagrees in part with the comment. A CPA and foster home must already integrate trauma informed practices into the care, treatment, and management of each child (See §749.1309(a)). Accordingly, HHSC agrees that any strategies or alternatives used to prevent unauthorized absences, and the environment that supports positive and constructive behavior of children in care, must be trauma informed. HHSC revises the rules to make the requisite revisions regarding trauma informed care. However, determining whether these strategies or alternatives are evidence-based would be difficult, if not impossible to verify; therefore, HHSC declines to revise the rules to include the term "evidence-based."

Comment: Regarding §749.592(a)(4), one commenter suggested an addition to the rule stating that if a child discloses that abuse or neglect occurred during an unauthorized absence, then the foster parent or other person conducting the debriefing should end the debriefing and report the allegation to DFPS.

Response: HHSC appreciates the commenter's sensitivity to the DFPS responsibility for investigating allegations of abuse and neglect. Accordingly, HHSC will add a helpful information box to the Minimum Standards on the HHSC Provider webpage to clarify that if a child discloses that abuse or neglect may have occurred during an unauthorized absence, the foster parent, or other person conducting the debriefing, must make a report to DFPS and not ask additional questions regarding the abuse and neglect. However, the foster parent, or other person conducting the debriefing, must complete the remaining requirements of the debriefing.

Comment: Regarding §749.596, one commenter wanted to know if HHSC would provide a form for the six-month overall agency evaluation.

Response: HHSC will not provide a sample form, because an overall agency evaluation could be very different from one CPA to another.

Comment: One commenter stated that the fiscal impact did not include any impact regarding the provider's and the DFPS case worker's time involved in debriefings (§749.592) and triggered reviews (§749.594).

Response: HHSC disagrees with the comment. HHSC assumes that, as a best practice, all providers and DFPS caseworkers currently debrief a child after an unauthorized absence. During a workgroup meeting, this assumption was verified. The new rule (§749.592) does specify what a debriefing must consist of, but the rule does not contemplate that additional time will be required to complete the debriefing. HHSC costed out the child placement staff's time in the fiscal impact for triggered reviews (§749.594). The fiscal impact also indicated that for the 11 DFPS child-placing agencies, the DFPS foster and development (FAD) staff would be responsible for performing the new duties required under the new rules, and HHSC anticipates that the FAD staff time needs to perform these additional duties can be absorbed within existing resources. Finally, the participation of the DFPS caseworkers is not mandatory. However, as DFPS is currently focusing resources on issues with unauthorized absences, HHSC anticipates that any additional duties can be absorbed within existing resources.

Some minor editorial changes were made to §749.596(a), (c)(1), and (c)(2) to clarify that the discussion related to unauthorized absences from foster homes, and a cite was clarified at §749.503(e)(3).

DIVISION 1. REPORTING SERIOUS INCIDENTS AND OTHER OCCURRENCES

26 TAC §749.501

STATUTORY AUTHORITY

The repeal is adopted under Texas Government Code §531.0055, which provides that the Executive Commissioner of HHSC shall adopt rules for the operation and provision of services by the health and human services agencies, and Human Resources Code (HRC), §42.042, which provides that the Executive Commissioner of HHSC shall adopt rules to carry out the provisions of HRC, Chapter 42.

The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on May 4, 2020.

TRD-202001767

Karen Ray

Chief Counsel

Health and Human Services Commission

Effective date: June 1, 2020

Proposal publication date: December 27, 2019

For further information, please call: (512) 438-5559


26 TAC §§749.501, 749.503, 749.513

STATUTORY AUTHORITY

The new section and amendments are adopted under Texas Government Code §531.0055, which provides that the Executive Commissioner of HHSC shall adopt rules for the operation and provision of services by the health and human services agencies, and Human Resources Code (HRC), §42.042, which provides that the Executive Commissioner of HHSC shall adopt rules to carry out the provisions of HRC, Chapter 42.

§749.503.When must I report and document a serious incident?

(a) You must report and document the following types of serious incidents involving a child in your care. The reports must be made to the following entities, and the reporting and documenting must be within the specified timeframes:

Figure: 26 TAC §749.503(a) (.pdf)

(b) If there is a medically pertinent incident, such as a seizure, that does not rise to the level of a serious incident, you do not have to report the incident but you must document the incident in the same manner as for a serious incident, as described in §749.511 of this division (relating to How must I document a serious incident?).

(c) You must document an unauthorized absence that does not meet the reporting time requirements defined in subsection (a)(7) - (9) of this section within 24 hours after you become aware of the unauthorized absence. You must document the absence:

(1) In the same manner as for a serious incident, as described in §749.511 of this division; and

(2) Complete an addendum to the serious incident report to finalize the documentation requirements, if the child returns to a foster home after 24 hours.

(d) If there is a serious incident involving an adult resident, you do not have to report the incident to Licensing, but you must document the incident in the same manner as a serious incident. You do have to report the incident to:

(1) Law enforcement as outlined in the chart above;

(2) The parents, if the adult resident is not capable of making decisions about the resident's own care; and

(3) Adult Protective Services through the Texas Abuse and Neglect Hotline if there is reason to believe the adult resident has been abused, neglected or exploited.

(e) You must report and document the following types of serious incidents involving your agency, one of your foster homes, an employee, professional level service provider, contract staff, or a volunteer to the following entities within the specified timeframe:

Figure: 26 TAC §749.503(e) (.pdf)

The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on May 4, 2020.

TRD-202001770

Karen Ray

Chief Counsel

Health and Human Services Commission

Effective date: June 1, 2020

Proposal publication date: December 27, 2019

For further information, please call: (512) 438-5559


DIVISION 5. UNAUTHORIZED ABSENCES

26 TAC §§749.590 - 749.596

STATUTORY AUTHORITY

The new sections are adopted under Texas Government Code §531.0055, which provides that the Executive Commissioner of HHSC shall adopt rules for the operation and provision of services by the health and human services agencies, and Human Resources Code (HRC), §42.042, which provides that the Executive Commissioner of HHSC shall adopt rules to carry out the provisions of HRC, Chapter 42.

§749.591.What documentation must be included in an annual summary log for a child who has an unauthorized absence?

(a) For each unauthorized absence during the relevant year, you must document the following information in an annual summary log:

(1) The name, age, gender, and date of admission of the child who was absent;

(2) The time and date the unauthorized absence was discovered;

(3) How long the child was gone or if the child did not return;

(4) The name of the caregiver responsible for the child at the time the child's absence was discovered;

(5) The intake report number, if a report was made to Licensing or the Department of Family and Protective Services; and

(6) Whether law enforcement was contacted, including the name of any law enforcement agency that was contacted and the number of the police report, if applicable.

(b) You must maintain each annual summary log for five years.

(c) You must make the annual summary logs available to Licensing for review and reproduction, upon request.

§749.592.What are the requirements for debriefing a child after an unauthorized absence?

(a) After a child returns to the foster home from an unauthorized absence, the foster parent, or other appropriate person, must conduct a debriefing with the child as soon as possible, but no later than 24 hours after the child's return. The purpose of the debriefing is for the child and the foster parent, or other appropriate person, to discuss the following:

(1) The circumstances that led to the child's unauthorized absence;

(2) The trauma informed strategies the child can use to avoid future unauthorized absences and how the foster parent can support those strategies;

(3) The child's condition; and

(4) What occurred while the child was away from the foster home, including where the child went, who was with the child, the child's activities, and any other information that may be relevant to the child's health and safety.

(b) The foster parent must allow the child to return to routine activities, excluding any activity that the foster parent determines would be inappropriate because of the child's condition following the unauthorized absence or something that occurred during the unauthorized absence.

(c) The debriefing must be documented in the child's record, including any routine activity that would be inappropriate for the child to return to and the explanation for why the activity is inappropriate.

§749.595.What must a triggered review of a child's unauthorized absences include?

A triggered review for a child's unauthorized absences must include the following:

(1) A review of the child's records documenting previous unauthorized absences, including previous debriefings;

(2) A review of service plan elements identified in §749.1309(b)(1)(D) and (H) and, as applicable, §749.1309(b)(2) and (3) of this chapter (relating to What must a child's initial service plan include?);

(3) An examination of trauma informed alternatives to minimize the unauthorized absences of the child; and

(4) A written plan to reduce the unauthorized absences of the child, which you must document in the child's record.

§749.596.What is an overall agency evaluation for unauthorized absences?

(a) Every six months, you must conduct an overall agency evaluation for unauthorized absences that have occurred at your foster homes during that time period.

(b) The objectives of the evaluation are to:

(1) Develop and maintain a trauma informed environment that supports positive and constructive behaviors by children in care; and

(2) Ensure the overall safety and well-being of children in care.

(c) The evaluation must include:

(1) The frequency and patterns of unauthorized absences of children from your foster homes; and

(2) Specific trauma informed strategies to reduce the number of unauthorized absences from your foster homes.

(d) You must maintain the results of each six-month overall agency evaluation for unauthorized absences for five years.

(e) You must make the results of each overall agency evaluation for unauthorized absences available to Licensing for review and reproduction, upon request.

The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on May 4, 2020.

TRD-202001771

Karen Ray

Chief Counsel

Health and Human Services Commission

Effective date: June 1, 2020

Proposal publication date: December 27, 2019

For further information, please call: (512) 438-5559