TITLE 26. HEALTH AND HUMAN SERVICES

PART 1. HEALTH AND HUMAN SERVICES COMMISSION

CHAPTER 903. INTERSTATE COMPACT ON MENTAL HEALTH AND INTELLECTUAL AND DEVELOPMENTAL DISABILITIES

26 TAC §§903.1 - 903.8

The Executive Commissioner of the Texas Health and Human Services Commission (HHSC) proposes new §903.1, concerning Purpose; §903.2, concerning Application; §903.3, concerning Definitions; §903.4, concerning Prerequisite for Transfer; §903.5, concerning Legal Basis for Institutionalization; §903.6, concerning Coordinating Requests for Interstate Transfer; §903.7, concerning Requests for a Person with Mental Illness or Intellectual and Developmental Disabilities to Transfer from Texas; and §903.8, concerning Requests for a Person with Mental Illness or Intellectual and Developmental Disabilities to Transfer to Texas.

BACKGROUND AND PURPOSE

The purpose of this proposal is to introduce new updated and reorganized rules related to the transfer of a person with intellectual and developmental disabilities and mental or behavioral health disorders in Texas Administrative Code (TAC) Title 26, Part 1, Chapter 903 to replace the current rules in 1 TAC Chapter 383. The rules in Chapter 383 have not been reviewed since 2001 and reference an agency that no longer exists - the Texas Department of Mental Health and Mental Retardation.

SECTION-BY-SECTION

Proposed new §903.1 establishes the purpose of the chapter.

Proposed new §903.2 establishes to whom the chapter applies.

Proposed new §903.3 provides terminology used in the chapter.

Proposed new §903.4 establishes the prerequisites for transferring a person interstate.

Proposed new §903.5 establishes when a person may be detained by the state.

Proposed new §903.6 describes the coordination of requests for an interstate transfer.

Proposed new §903.7 describes the process to request the transfer of a person with mental illness or intellectual and developmental disabilities from Texas.

Proposed new §903.8 describes the process to request the transfer of a person with mental illness or intellectual and developmental disabilities to Texas.

FISCAL NOTE

Trey Wood, Chief Financial Officer, has determined that for each year of the first five years that the rules will be in effect, enforcing or administering the rules does not have foreseeable implications relating to costs or revenues of state or local governments.

GOVERNMENT GROWTH IMPACT STATEMENT

HHSC has determined that during the first five years that the rules will be in effect:

(1) the proposed rules will not create or eliminate a government program;

(2) implementation of the proposed rules will not affect the number of HHSC employee positions;

(3) implementation of the proposed rules will result in no assumed change in future legislative appropriations;

(4) the proposed rules will not affect fees paid to HHSC;

(5) the proposed rules will create new rules in 26 TAC, which will replace rules being repealed contemporaneously in 1 TAC;

(6) the proposed rules will not expand, limit, or repeal existing rules;

(7) the proposed rules will not change the number of individuals subject to the rules; and

(8) the proposed rules will not affect the state's economy.

SMALL BUSINESS, MICRO-BUSINESS, AND RURAL COMMUNITY IMPACT ANALYSIS

Trey Wood has also determined that there will be no adverse economic effect on small businesses, micro-businesses, or rural communities.

The rules do not apply to small or micro-businesses, or rural communities.

LOCAL EMPLOYMENT IMPACT

The proposed rules will not affect a local economy.

COSTS TO REGULATED PERSONS

Texas Government Code §2001.0045 does not apply to these rules because the rules are necessary to protect the health, safety, and welfare of the residents of Texas and do not impose a cost on regulated persons.

PUBLIC BENEFIT AND COSTS

Mike Maples, Deputy Executive Commissioner, Health and Specialty Care System, has determined that for each year of the first five years the rules are in effect, the public benefit will be locating the rules in 26 TAC with other HHSC rules, and accessing rules with the current agency name and terminology.

Trey Wood has also determined that for the first five years the rules are in effect, there are no anticipated economic costs to persons who are required to comply with the proposed rules because they will not be required to alter their business practices.

TAKINGS IMPACT ASSESSMENT

HHSC has determined that the proposal does not restrict or limit an owner's right to his or her property that would otherwise exist in the absence of government action and, therefore, does not constitute a taking under Texas Government Code §2007.043.

PUBLIC COMMENT

Written comments on the proposal may be submitted to HHSC, Mail Code 619E, P.O. Box 13247, Austin, Texas 78711-3247, or by email to healthandspecialtycare@hhsc.state.tx.us.

To be considered, comments must be submitted no later than 31 days after the date of this issue of the Texas Register. Comments must be: (1) postmarked or shipped before the last day of the comment period; (2) hand-delivered before 5:00 p.m. on the last working day of the comment period; or (3) emailed before midnight on the last day of the comment period. If last day to submit comments falls on a holiday, comments must be postmarked, shipped, or emailed before midnight on the following business day to be accepted. When emailing comments, please indicate "Comments on Proposed Rule 19R065" in the subject line.

STATUTORY AUTHORITY

The new sections are authorized by 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 Texas Health and Safety Code §§533.014, 533.0356, 533A.0355, 571.006 and 612.004 which authorize creation of rules related to this topic.

The new sections affect Texas Government Code §531.0055 and Texas Health and Safety Code §§533.014, 533.035, 533.0359, 533A.011, 533A.035, 533A.0355, 571.008, 571.0081, 572.0051, 574.0456, 593.041, 593.052 and Chapter 612.

§903.1.Purpose.

This chapter implements Texas laws authorizing the transfer of a person with intellectual and developmental disabilities and mental or behavioral health disorders and co-diagnoses receiving services at a state operated facility between Texas and other states.

§903.2.Application.

This chapter applies to the Texas Health and Human Services Commission (HHSC) state hospitals and state supported living centers (SSLCs), and local authorities.

§903.3.Definitions.

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

(1) Family member--The person's spouse, parent, sibling, adult child, or any individual the person identifies as playing a significant role in their life.

(2) HHSC--Texas Health and Human Services Commission.

(3) ICC--Interstate compact coordinator. The individual who facilitates the transfer of a person served in Texas state hospitals and SSLCs out-of-state to another state's facility or the transfer of a person from out-of-state psychiatric hospitals and intermediate care facilities for individuals with intellectual disabilities into Texas state hospitals and SSLCs.

(4) Informed consent--The knowing agreement of the person or the person's legally authorized representative (LAR) to a proposed transfer. This consent must be given under the person's or LAR's ability to exercise free power of choice without undue pressure or any element of force, fraud, deceit, duress, or other form of constraint or coercion.

(5) LAR--Legally authorized representative. An individual authorized by law to make decisions for a person about the matters described in this chapter. The LAR may include a parent, guardian, or managing conservator of a child or adolescent, or a guardian of an adult.

(6) Local authority--An entity designated by HHSC in accordance with the Texas Health and Safety Code §533.035(a).

(7) Person--An individual who is eligible for care, treatment, or supervision at an SSLC or state hospital, as determined by the laws of the sending state, and for whom interstate transfer is requested.

(8) SSLC--State supported living center. An intermediate care facility for individuals with an intellectual disability or related condition that HHSC operates.

(9) State hospital--A psychiatric hospital with an inpatient component that HHSC operates.

(10) Transfer--Moving a person from a facility in one state to a facility in a different state under Texas Health and Safety Code §571.008; Texas Health and Safety Code §533A.011 and §533.014(a)(3); or the Interstate Compact on Mental Health, Texas Health and Safety Code Chapter 612.

§903.4.Prerequisite for Transfer.

(a) To transfer a person to a state operated facility in another state from a Texas state hospital or SSLC:

(1) the person must be a resident or former resident of the receiving state;

(2) the person's LAR must live in the receiving state; or

(3) the person must have a family member living in the receiving state who will play a significant role in the person's life.

(b) To transfer a person from a state operated facility in another state to a Texas state hospital or SSLC:

(1) the person must be a resident of Texas;

(2) the person's LAR must live in Texas; or

(3) the person must have a family member living in Texas who will play a significant role in the person's life.

§903.5.Legal Basis for Institutionalization.

(a) A person with a mental illness or an intellectual or developmental disability who is involuntarily committed by another state and who transfers to Texas may be detained for up to 96 hours. To detain a person for more than 96 hours, one of the following must apply:

(1) a voluntary admission to a Texas state hospital or SSLC;

(2) an order of protective custody; or

(3) a commitment order of a Texas court.

(b) An appropriate court in the county of a state hospital or local authority's service area may conduct commitment proceedings of a person transferred to the state hospital or local authority from another state.

(c) Court commitment of a person with intellectual and developmental disabilities to an SSLC is governed by Texas Health and Safety Code §593.041 and §593.052.

(d) Voluntary admission of a person with an intellectual and developmental disability to an SSLC is governed by Texas Health and Safety Code Chapter 593, Subchapters A and B and 40 TAC Chapter 2, subchapter F (relating to Continuity of Services--State Facilities).

(e) Voluntary admission of a person with mental illness to a state hospital is governed by Chapter 306, subchapter D of this title (relating to Mental Health Services--Admission, Continuity, and Discharge) and Texas Health and Safety Code Chapter 572.

§903.6.Coordinating Requests for Interstate Transfer.

The Texas ICC coordinates requests for interstate transfer to or from Texas. Anyone interested in an interstate transfer may contact the Texas ICC by email at Interstate_Compact_Coordination@hhsc.state.tx.us or by mail at HHSC, Texas ICC, P.O. Box 12668, Austin, Texas 78711-2668. The Texas ICC must not discriminate on the grounds of race, color, national origin, religion, sex, age, disability, or political affiliation.

§903.7.Requests for a person with Mental Illness or Intellectual and Developmental Disabilities to Transfer from Texas.

(a) A letter of request for interstate transfer of a person with mental illness or intellectual and developmental disabilities from a state hospital or SSLC must be sent to the Texas ICC by email (preferred) or mail.

(b) State hospital or SSLC staff must discuss the proposed transfer and the person's preference with the person, the person's LAR, and the person's family, or, if appropriate, other available sources to ascertain whether the transfer is in the person's best interest.

(c) If the transfer will not occur, the Texas ICC must provide written notification to the person who requested the transfer of the reason for not proceeding with the transfer.

(d) The Texas ICC must contact the receiving state's ICC and make a reasonable effort to obtain authorization for the transfer if HHSC determines the transfer of a person is in the person's best interest.

(e) If the person is proposed to be transferred from a state hospital or SSLC to a facility in another state that is a party to the interstate compact, HHSC must not take final action without the approval of the committing Texas court.

(f) If the receiving state decides to accept the person for immediate transfer, then the state hospital or SSLC must:

(1) make all travel arrangements, including coordinating with the facility in the receiving state to assist with travel inside the receiving state;

(2) be responsible for all transfer expenses;

(3) ensure arrangements are made for an escort or escorts to accompany and assist the person to reach their destination;

(4) ensure the following items accompany the person upon transfer to the receiving state:

(A) all appropriate legal documents;

(B) the person's Medicaid, Medicare, or third-party insurance card or cards, if available;

(C) copies of all the person's laboratory reports and physical exams conducted within the past 30 days and any additional significant reports made within the past year;

(D) all the person's personal belongings at the state hospital or SSLC; and

(E) the supply of all prescribed medication as agreed upon by the sending and receiving facilities.

(g) The Texas ICC must ensure all authorized parties are informed of the progress made on the transfer request.

§903.8.Requests for a Person with Mental Illness or Intellectual and Developmental Disabilities to Transfer to Texas.

(a) A written request for interstate transfer of a person with a mental illness or an intellectual and developmental disability to a Texas state hospital or SSLC must be sent by the requesting state's ICC, or its designee, to the Texas ICC by email to Interstate_Compact_Coordination@hhsc.state.tx.us.

(b) The written request must be accompanied by the following information:

(1) documentation that the prerequisites for transfer to Texas are met, in accordance with §903.4(b) of this chapter (relating to Prerequisite for Transfer);

(2) a consent to the interstate transfer and release of records to the Texas ICC, signed by the person or the person's LAR;

(3) the completed "Request for Interstate Transfer" form;

(4) a copy of the person's immunization record;

(5) a copy of the person's social security card;

(6) a copy of the person's birth certificate or appropriate substitute;

(7) a copy of the person's diagnosis of mental illness or intellectual and developmental disabilities;

(8) a copy of the person's comprehensive medical history, including any medical evaluations, current physician's orders, and list of current medications;

(9) a summary of the person's social history and history of mental illness or intellectual and developmental disabilities, including a copy of any psychiatric or psychological evaluations;

(10) a copy of the person's current individual habilitation plan and annual planning conference documents for a person with intellectual and developmental disabilities;

(11) a copy of the original order of commitment and any renewals and, if required, documentation of approval to transfer from the committing court;

(12) a copy of guardianship or other legal documentation pertaining to the person requesting transfer, if applicable; and

(13) a brief cover letter signed by the institution's chief executive officer, or designee, stating the circumstances or reasons for requesting the transfer.

(c) Upon receipt, the Texas ICC must review the request packet.

(1) If the request packet is complete, the Texas ICC must forward it to the appropriate local authority, which may request additional information to determine whether the person is eligible for admission to:

(A) a state hospital in accordance with Texas Health and Safety Code Chapter 574 and 575; and Chapter 306, subchapter D of this title (relating to Mental Health Services--Admission, Continuity, and Discharge); or

(B) an SSLC in accordance with Texas Health and Safety Code Chapter 591, and 40 TAC Chapter 2, subchapter F (relating to Continuity of Services--State Facilities).

(2) If the request packet is incomplete, the Texas ICC contacts the requesting state's ICC and identifies the specific information or documentation that must be received for the transfer to proceed.

(d) If the local authority determines the person is eligible for admission, the local authority authorizes admission. The local authority provides written notification to the Texas ICC and the appropriate state hospital or SSLC of the admission authorization. The Texas ICC provides written notification to the requesting state's ICC of the person's eligibility and authorization for admission and includes the name and phone number of the state hospital or SSLC contact.

(e) If the local authority determines that the person is not eligible for admission, the local authority provides written notification to the Texas ICC of the person's ineligibility for admission. The Texas ICC provides written notification to the requesting state's ICC of:

(1) the person's ineligibility for admission;

(2) the person's or LAR's right to provide additional information for consideration in re-determining eligibility, if the person believes incomplete information was used to determine ineligibility; and

(3) the person's or LAR's right to contact the Texas Health and Human Services Office of the Ombudsman by mailing Mail Code H-700, P.O. Box 13247, Austin, Texas 78711-3247, or by calling 1-800-252-8154.

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

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

TRD-202004068

Karen Ray

Chief Counsel

Health and Human Services Commission

Earliest possible date of adoption: November 15, 2020

For further information, please call: (512) 438-3049