TITLE 26. HEALTH AND HUMAN SERVICES

PART 1. HEALTH AND HUMAN SERVICES COMMISSION

CHAPTER 302. IDD-BH TRAINING

SUBCHAPTER A. MENTAL HEALTH FIRST AID [PREVENTION STANDARDS]

26 TAC §§302.1, 302.5, 302.7, 302.9

The Executive Commissioner of the Texas Health and Human Services Commission (HHSC) proposes amendments to §302.1, concerning Purpose; §302.5, concerning Definitions; §302.7, concerning Mental Health First Aid Training Protocols; and §302.9, concerning Local Mental Health Authority Responsibilities.

BACKGROUND AND PURPOSE

The purpose of the proposal is to include Local Behavioral Health Authorities (LBHAs) in the requirements for Local Mental Health Authorities (LMHAs) to provide mental health first aid (MHFA) training to public school district employees, higher education employees, and community members. The proposed amendments update rules to ensure consistency with statute; remove references to managed care organizations; clarify the roles of LMHAs and LBHAs in providing training; and outline guidelines for LMHAs and LBHAs to follow.

SECTION-BY-SECTION SUMMARY

The proposed amendment to §302.1, Purpose, updates terms, clarifies the entities or persons who shall receive the training, and states that the MHFA curriculum is owned and updated by the National Council for Behavioral Health.

The proposed amendment to §302.5, Definitions, removes outdated terms and references to the "Department of State Health Services" and "managed care organization". HHSC is added as a new term under definitions. The definitions for "LBHA" and "LMHA" are reorganized.

The proposed amendment to §302.7, Mental Health First Aid Training Protocols, clarifies that LMHA and LBHA employees must be qualified, as required under Texas Health and Safety Code §1001.202(d). The amendment adds new subsection (b) which allows two or more LMHAs and LBHAs to collaborate and share resources to provide training. The amendment also relabels current subsection (b) to subsection (c).

The proposed amendment to §302.9, Local Mental Health Authority Responsibilities, renames the section to include LBHAs and adds new subsections (b) - (g) providing training requirements to ensure consistency with statute.

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 do 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 not create a new rule;

(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 rule; 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. LMHAs and LBHAs contracting with HHSC are considered quasi-governmental entities and are not considered small business, micro-business, 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 they are necessary to implement legislation that does not specifically state that §2001.0045 applies to the rules.

PUBLIC BENEFIT AND COSTS

Sonja Gaines, Deputy Executive Commissioner for IDD and Behavioral Health Services, has determined that for each year of the first five years the rules are in effect, the public benefit will be improving the health and safety of the citizens of Texas by training as many people as possible to recognize the signs and symptoms of mental illness and substance use.

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 as there are no requirements to alter current business practices. The proposed rules provide clarity and update current agency practices to align with existing statute.

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

Questions about the content of this proposal may be directed to Carrie Hoffman at (512) 656-6585 in the HHSC Medical and Social Services Division, Office of Mental Health Coordination.

Written comments on the proposal may be submitted to Rules Coordination Office, P.O. Box 13247, Mail Code 4102, Austin, Texas 78711-3247, or street address 4900 North Lamar Boulevard, Austin, Texas 78751; or emailed to HHSRulesCoordinationOffice@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 20R050" in the subject line.

STATUTORY AUTHORITY

The amendments 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 §§1001.201 - 1001.207 which authorizes HHSC to administer the Mental Health First Aid Program and sets forth program requirements.

The amendments affect Texas Government Code §531.0055 and Texas Health and Safety Code §§1001.201 - 1001.207.

§302.1.Purpose.

(a) The purpose of this subchapter is to set forth the standards and provide the criteria for mental health first aid (MHFA) [prevention ] training provided by a [to] local mental health authority (LMHA) [authorities (LMHAs)] and a [the] local behavioral health authority (LBHA)[,] for [which is a managed care organization (MCO) (collectively LMHA, LBHA and MCO are referred to in this subchapter as LMHAs),] their respective contractors, public school district employees, higher education employees, and community members [and educators] located within an LMHA and an LBHA [the LMHA's] service area, as required by Texas Health and Safety Code, Chapter 1001, Subchapter H, §§1001.201 - 1001.206.

(b) The MHFA curriculum is owned and updated by the National Council for Behavioral Health.

§302.5.Definitions.

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

[(1) Department--The Department of State Health Services (DSHS).]

[(2) Local mental health authority (LMHA)--An entity designated as the local mental health authority by the department in accordance with the Texas Health and Safety Code, §533.035(a). For purposes of this subchapter, the term includes an entity designated as a local behavioral health authority.]

[(3) Local behavioral health authority (LBHA)--An entity designated as a local behavioral health authority by the department in accordance with Texas Health and Safety Code, §533.0356.]

(1) [(4)] Educator--A person who is required to hold a certificate issued under the Education Code, Subchapter B, Chapter 21, specifically; a teacher, teacher intern or teacher trainee, librarian, educational aide, administrator, educational diagnostician, school nurse, or school counselor.

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

[(5) Managed care organization (MCO)--An entity that has a current Texas Department of Insurance certificate of authority to operate as a Health Maintenance Organization (HMO) in the Texas Insurance Code, Chapter 843, or as an approved nonprofit health corporation in the Texas Insurance Code, Chapter 844, and that provides mental health community services pursuant to a contract with the department.]

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

(4) Local mental health authority (LMHA)--An entity designated as the local mental health authority by HHSC in accordance with Texas Health and Safety Code, §531.002(a) and §533.035.

(5) [(6)] Mental health first aid (MHFA)--The assistance provided to a person who is developing a mental health issue or who is experiencing a mental health crisis until appropriate professional treatment is received or until the crisis resolves.

§302.7.Mental Health First Aid Training Protocols.

(a) Any person approved to train local mental health authority (LMHA) and local behavioral health authority (LBHA) [LMHA] employees or contractors as mental health first aid (MHFA) [MHFA] trainers shall be qualified , pursuant to Texas Health and Safety Code, §1001.202(d), to provide training in:

(1) the potential risk factors and warning signs for various mental illnesses, including depression, anxiety, trauma, psychosis, eating disorders, substance abuse disorders, and self-injury;

(2) the prevalence of various mental illnesses in the United States and the need to reduce the stigma associated with mental illness;

(3) an action plan used by employees or contractors that involves the use of skills, resources, and knowledge to assess a situation and develop and implement an appropriate intervention to assist a person experiencing a mental health crisis to obtain appropriate, professional care; and

(4) the evidence-based professional, peer, social, and self-help resources available to help individuals with mental illness.

(b) Two or more LMHAs and LBHAs may collaborate and share resources to provide training for employees or contractors of the authorities under this section.

(c) [(b)] All persons or entities that train LMHA and LBHA employees or contractors as MHFA trainers shall be certified by an authority of:

(1) MHFA-USA;

(2) MHFA-Australia; or

(3) other entities [entity(ies)] approved by HHSC [the department].

§302.9.Local Mental Health Authority and Local Behavioral Health Authority Responsibilities.

(a) The local mental health authorities (LMHAs) and local behavioral health authorities (LBHAs) [LMHA] are [is] responsible for ensuring their contractors provide mental health first aid (MHFA) [MHFA] training to educators and non-educators consistent with the MHFA protocol, as required by Texas Health and Safety Code, §1001.203(d). [The LMHA shall ensure that training is taught without modification, substitution or subtraction of the MHFA-USA or MHFA-Australia, as applicable, content or format unless authorized by the department-approved training entities set forth in §412.4(b) of this title (relating to Mental Health First Aid Training Protocols).]

(b) An MHFA training must:

(1) be conducted by a person trained as an MHFA trainer;

(2) provide participants with the skills necessary to help an individual experiencing a mental health crisis until the individual is able to obtain appropriate professional care; and

(3) include:

(A) instruction in a five-step strategy for helping an individual experiencing a mental health crisis, including assessing risk, listening respectfully to and supporting the individual, and identifying professional help and other supports for the individual;

(B) an introduction to the risk factors and warning signs for mental illness and substance abuse problems;

(C) experiential activities to increase participants' understanding of the impact of mental illness on individuals and families; and

(D) a presentation of evidence-supported treatment and self-help strategies.

(c) An LMHA and LBHA may contract with a regional education service center to provide an MHFA training program to university employees, school district employees, and school resource officers under this section.

(d) Two or more LMHAs or LBHAs may collaborate and share resources to develop and operate an MHFA training program under this section.

(e) The LMHA and LBHA shall ensure that training is taught without modification, substitution or subtraction of the MHFA-USA or MHFA-Australia, as applicable, content or format unless authorized by HHSC-approved training entities set forth in §302.7 of this subchapter (relating to Mental Health First Aid Training Protocols).

(f) [(b)] [The] LMHAs [LMHA] and LBHAs are [is] responsible for ensuring their contractors comply with the provisions of this subchapter and applicable provisions of the contract between HHSC [the department] and the LMHA and LBHA.

(g) The LMHA and LBHA must submit the annual Plan for Mental Health First Aid Training Programs by July 1 of each state fiscal year, as required by Texas Health and Safety Code, §1001.204. The LMHA and LBHA must submit the information for the annual report by September 30 of each year, as required by Texas Health and Safety Code, §1001.205.

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 4, 2020.

TRD-202003681

Karen Ray

Chief Counsel

Health and Human Services Commission

Earliest possible date of adoption: October 25, 2020

For further information, please call: (512) 656-6585


CHAPTER 306. BEHAVIORAL HEALTH DELIVERY SYSTEM

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

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

26 TAC §306.204

The Executive Commissioner of the Texas Health and Human Services Commission (HHSC) proposes in Texas Administrative Code (TAC) Title 26, Part 1, Chapter 306, Subchapter D, Division 1, an amendment to §306.204, concerning Discharge of an Individual Involuntarily Receiving Treatment.

BACKGROUND AND PURPOSE

The purpose of this proposal is to implement §574.081(c-2) of the Texas Health and Safety Code, as amended by Senate Bill (S.B.) 362, 86th Legislature, Regular Session, 2019. The proposed amendment outlines requirements for private mental health facilities with a contracted psychiatric bed (CPB) through HHSC, or funded and operated by a local mental health authority (LMHA) or local behavioral health authority (LBHA), to provide psychoactive medication, and any other medication prescribed to counteract adverse side effects of psychoactive medication, at the time an individual receiving court-ordered inpatient mental health services is furloughed or discharged from a facility with a CPB. The facility with a CPB is only required to provide the medication if funding to cover the cost of the medications is available to be paid to the facility for this purpose from HHSC. The facility with a CPB is not required to provide or pay for more than a seven day supply of the medication.

SECTION-BY-SECTION SUMMARY

The proposed amendment to §306.204 adds new paragraph (3) in subsection (c), which requires facilities with CPBs to provide psychoactive medication and medication to counteract adverse side effects of psychoactive medications at the time an individual receiving court-ordered inpatient mental health services is furloughed or discharged. The requirement is contingent on available funding from HHSC to cover the cost of the medication. The amendment also renumbers the current paragraph (3) to paragraph (4).

FISCAL NOTE

Trey Wood, Chief Financial Officer, has determined that for each year of the first five years that the rule will be in effect, there is no anticipated cost to state government. Enforcing or administering the rule also does not have foreseeable implications relating to costs or revenues of local government.

GOVERNMENT GROWTH IMPACT STATEMENT

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

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

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

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

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

(5) the proposed rule will create a new rule;

(6) the proposed rule will expand existing rules;

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

(8) HHSC has insufficient information to determine the proposed rule's effect on the state's economy.

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

Trey Wood has also determined that there could be an adverse economic effect on small businesses. There are approximately 30 facilities with CPBs that may qualify as small businesses, but HHSC does not have sufficient information to determine which facilities with CPBs qualify. In addition, LMHAs and LBHAs do not qualify as small businesses, micro businesses, or rural communities.

HHSC determined that there are no alternative methods to achieve the purpose of the proposed rule since this is in accordance with statutory requirement S.B. 362, 86th Legislature, Regular Session, 2019.

LOCAL EMPLOYMENT IMPACT

The proposed rule will not affect a local economy.

COSTS TO REGULATED PERSONS

Texas Government Code §2001.0045 does not apply to this rule because the rule is necessary to protect the health, safety, and welfare of the residents of Texas; does not impose a cost on regulated persons; and are necessary to implement legislation that does not specifically state that §2001.0045 applies to the rule.

PUBLIC BENEFIT AND COSTS

Sonja Gaines, Deputy Executive Commissioner for IDD and Behavioral Health Services, has determined that for each year of the first five years the rule is in effect, the public benefit will be that the proposed rule would require facilities with CPBs to provide psychoactive medication and medication to counteract adverse side effects of psychoactive medication to individuals receiving court-ordered inpatient mental health services while on furlough or at discharge.

Trey Wood has also determined that for the first five years the rule is in effect, there could be an anticipated cost to persons required to comply with the rule as proposed. The proposed rule would require private facilities with CPBs to provide psychoactive medication and medication to counteract adverse side effects of psychoactive medication to individuals receiving court-ordered inpatient mental health services while on furlough or at discharge.

Senate Bill 362, 86th Legislature, Regular Session, 2019 appropriated $1.7 million to HHSC for the 2020-2021 biennium. These funds will be provided by HHSC to LMHAs and LBHAs, who work with facilities with CPBs, to address the cost of compliance with the rule. The estimated cost to provide seven days of medications at discharge may vary depending on civil commitments in need of medication and the types and quantity of medicines provided. As a result, HHSC does not have sufficient evidence to estimate each individual LMHA's, LBHA's or private facility's cost to comply.

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

Questions about the content of this proposal may be directed to Raven Thousand at (512) 838-4390 in HHSC IDD and Behavioral Health Services, Behavioral Health Services Section, Crisis Services Unit.

Written comments on the proposal may be submitted to Rules Coordination Office, P.O. Box 13247, Mail Code 4102, Austin, Texas 78711-3247, or street address 4900 North Lamar Boulevard, Austin, Texas 78751; or emailed to HHSRulesCoordinationOffice@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 the 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 20R043" in the subject line.

STATUTORY AUTHORITY

The proposed amendment is 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. 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. Texas Health and Safety Code §574.081 requires HHSC to adopt rules related to medication provided to individuals discharged or furloughed from court-ordered inpatient mental health treatment.

The proposed amendment implements Texas Health and Safety Code §574.081.

§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) In accordance with Texas Health and Safety Code §574.081, at the time an individual receiving court-ordered inpatient mental health services is furloughed or discharged from a facility with a CPB, a facility with a CPB is responsible for providing or paying for psychoactive medication and any other medication prescribed to counteract adverse side effects of psychoactive medication.

(A) A facility with a CPB is only required to provide or pay for these medications if funding to cover the cost of the medications is available to be paid to the facility for this purpose from HHSC.

(B) The facility with a CPB must provide or pay for the medications in an amount sufficient to last until the individual can see a physician, or provider with prescriptive authority, but the facility with a CPB is not required to provide or pay for more than a seven-day supply.

(4) [(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.

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 9, 2020.

TRD-202003703

Karen Ray

Chief Counsel

Health and Human Services Commission

Earliest possible date of adoption: October 25, 2020

For further information, please call: (512) 838-4390


CHAPTER 307. BEHAVIORAL HEALTH PROGRAMS

SUBCHAPTER D. OUTPATIENT COMPETENCY RESTORATION

26 TAC §§307.151, 307.153, 307.155, 307.157, 307.159, 307.161, 307.163, 307.165, 307.167, 307.169, 307.171, 307.173, 307.175

The Executive Commissioner of the Health and Human Services Commission (HHSC) proposes new Subchapter D, concerning Outpatient Competency Restoration in Title 26, Chapter 307. The new subchapter consists of §307.151, concerning Purpose; §307.153, concerning Application; §307.155, concerning Definitions; §307.157, concerning Criteria for Admission to an Outpatient Competency Restoration Program; §307.159, concerning Recommendation Regarding Outpatient Competency Restoration Program Admission; §307.161, concerning General Service Requirements; §307.163, concerning Assessment, Reassessment, and Court Reporting; §307.165, concerning Discharge Requirements; §307.167, concerning Data; §307.169, concerning Written Policies and Procedures; §307.171, concerning Staff Member Training; §307.173, concerning Rights; and §307.175, concerning Compliance with Statutes and Rules.

BACKGROUND AND PURPOSE

The proposed new rules implement amendments made to the Code of Criminal Procedure, Chapter 46B by Senate Bill (S.B.) 1326 (85th Legislature, Regular Session, 2017) that added competency restoration to outpatient treatment options. Specifically, S.B. 1326 states that an individual charged with certain crimes may be released on bail and ordered to participate in an outpatient competency restoration (OCR) program contingent upon the availability of the service and an evaluation of the individual's level of risk to the community. This proposal establishes standards for entities that contract with HHSC to provide OCR services.

SECTION-BY-SECTION SUMMARY

Proposed new §307.151 establishes the purpose of the subchapter.

Proposed new §307.153 indicates the subchapter applies to local mental health authorities (LMHAs), local behavioral health authorities (LBHAs), and LMHA or LBHA subcontractors; and private providers under contract with HHSC and its subcontractors delivering OCR services.

Proposed new §307.155 provides definitions for terminology used in the subchapter.

Proposed new §307.157 describes criteria for admission to an OCR program.

Proposed new §307.159 describes assessment, documentation, and reporting procedures an OCR provider must follow when making a recommendation to the court regarding an individual's eligibility to receive OCR services.

Proposed new §307.161 describes general service requirements such as the provision of OCR services in multiple learning formats; the use telecommunications or information technology; and the availability of appropriate prescribed regimen of medical, psychiatric, or psychological care or treatment.

Proposed new §307.163 requires OCR providers to regularly evaluate an individual's ability to attain competency and report on the individuals progress to the court within specified time frames.

Proposed new §307.165 describes OCR provider requirements for planned and unplanned discharges, continuity of care, and court collaboration.

Proposed new §307.167 describes the bi-annual data OCR providers must collect and report to HHSC.

Proposed new §307.169 describes required policies and procedures OCR providers must develop.

Proposed new §307.171 describes staff training and documentation requirements.

Proposed new §307.173 requires an OCR provider to provide information to an individual regarding the individual's rights.

Proposed new §307.175 identifies specific state and federal laws an OCR provider must comply with, in addition to any applicable federal or state laws or rules.

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 do 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 a new rule;

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

(7) the proposed rules will increase 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 could be an adverse economic effect on small businesses, micro-businesses, or rural communities. LMHAs and LBHAs contracting with HHSC are considered quasi-governmental entities and are not considered small business, micro-business, or rural communities. HHSC does not have sufficient information to determine which potential private providers under contract with HHSC and their subcontractors qualify as small businesses, micro-businesses, or rural communities to estimate economic impact.

HHSC has determined that there are no alternative methods to this proposed rule that would protect the health, safety, and welfare of the residents of Texas.

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

Sonja Gaines, Deputy Executive Commissioner of IDD and Behavioral Health Services, has determined that for each year of the first five years the rules are in effect, the public will benefit from establishing minimum standards to ensure consistency in OCR programs.

Trey Wood has also determined that for the first five years the rules are in effect, persons who are required to comply with the proposed rules may incur economic costs. The proposed rule provides standards to ensure consistency in OCR programs, including eligibility, admission, assessment, reassessment, staff training, reporting, policies and procedures, discharge requirements, and patient rights. HHSC does not have sufficient information to estimate the fiscal impact for potential private providers under contract with HHSC and their subcontractors. LMHAs and LBHAs are not required to change any 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 Rules Coordination Office, P.O. Box 13247, Mail Code 4102, Austin, Texas 78711-3247, or street address 4900 North Lamar Boulevard, Austin, Texas 78751; or emailed to HHSRulesCoordinationOffice@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 the 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 18R054" 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; Texas Health and Safety Code §§534.052 and 534.058, which authorize the Executive Commissioner to develop rules and standards for services provided by community centers and their subcontractors; and Texas Code of Criminal Procedure Articles 46B.0095, 46B.077, 46B.0711, 46B.079, 46B.0805, 46B.082, 46B.083, and 46B.086, which set forth requirements for OCR programs.

The proposed new sections affect Texas Government Code §531.0055 and Texas Health and Safety Code §§534.052 and 534.058.

§307.151.Purpose.

The purpose of this subchapter is to provide standards for outpatient competency restoration (OCR) services provided to individuals ordered to participate in an OCR program pursuant to the Texas Code of Criminal Procedure Chapter 46B.

§307.153.Application.

This subchapter applies to:

(1) local mental health authorities (LMHA), local behavioral health authorities (LBHA), and LMHA or LBHA subcontractors that administer OCR programs; and

(2) private providers, and any subcontractors, under contract with the Texas Health and Human Services Commission to administer an OCR program.

§307.155.Definitions.

The following words and terms, when used in this subchapter, have the following meanings.

(1) Adaptive behavior--The effectiveness with which, or degree to which, an individual meets the standards of personal independence and social responsibility expected of the individual's age and cultural group.

(2) Competency restoration--The treatment or education process for restoring an individual's ability to consult with the individual's attorney with a reasonable degree of rational understanding, including a rational and factual understanding of the court proceedings and charges against the individual.

(3) Court--A court of law presided over by a judge, judges, or a magistrate in civil and criminal cases.

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

(5) ID--Intellectual disability. A significantly sub-average general intellectual functioning that is concurrent with deficits in adaptive behavior and originates during the developmental period.

(6) Individual--A person receiving services under this subchapter.

(7) IST--Incompetent to stand trial. The term has the meaning described in Texas Code of Criminal Procedure Article 46B.003.

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

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

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

(11) Medical record--An organized account of information relevant to the medical services provided to an individual, including an individual's history, present illness, findings on examination, treatment and discharge plans, details of direct and indirect care and services, and notes on progress.

(12) OCR--Outpatient competency restoration. A community-based program with the specific objective of attaining restoration to competency pursuant to Texas Code of Criminal Procedure Chapter 46B.

(13) OCR provider--An entity identified in §307.153 of this subchapter (relating to Application) that provides OCR services.

(14) Ombudsman--The Ombudsman for Behavioral Health Access to Care established by Texas Government Code §531.02251, including care for mental health conditions and substance use disorders.

(15) Subcontractor--A person or entity that contracts with an OCR provider to provide OCR services.

(16) TAC--Texas Administrative Code.

§307.157.Criteria for Admission to an Outpatient Competency Restoration Program.

(a) To be eligible to participate in an OCR program, a court must order an individual's participation after determining that an appropriate OCR program is available for the individual and determining that the individual:

(1) is incompetent to stand trial;

(2) is not a danger to others;

(3) may be safely treated on an outpatient basis with the specific objective to attain competency; and

(4) is charged with an offense eligible for OCR pursuant to Texas Code of Criminal Procedure Chapter 46B.

(b) An individual is ineligible to receive OCR services if a court determines the individual is unlikely to restore to competency in the foreseeable future.

§307.159.Recommendation Regarding Outpatient Competency Restoration Program Admission.

(a) If a court determines an individual is IST, the OCR provider must assess the individual to determine whether OCR services are appropriate by ensuring the following assessments are conducted:

(1) a clinical assessment, including substance use history; and

(2) a risk of violence assessment.

(b) If an OCR provider determines that OCR services are appropriate for an individual, the provider must:

(1) inform the court, in writing, that the individual is being recommended for admission into the OCR program; and

(2) submit a comprehensive plan to the court listing services the individual will be provided, including:

(A) competency restoration education;

(B) access to housing resources;

(C) access to transportation resources; and

(D) a regimen of medical, psychiatric, or psychological care or treatment; and

(3) identify the persons responsible for providing treatment to the individual.

(c) If an OCR provider determines that OCR services are inappropriate for an individual, the provider must:

(1) inform the court, in writing, of the individual's ineligibility for admission into the OCR program; and

(2) document reasons for ineligibility in the individual's record.

§307.161.General Service Requirements.

An OCR provider:

(1) must make competency restoration education available in multiple learning formats, which may include:

(A) discussion;

(B) written text;

(C) recorded video; and

(D) experiential learning, such as role-playing or mock trial;

(2) must ensure an individual who requires accommodations receives adapted materials and approaches as needed, including accommodations for language barriers and disabilities;

(3) must make available an appropriate prescribed regimen of medical, psychiatric, or psychological care or treatment, including administration of psychoactive medication in accordance with 25 TAC Chapter 414, Subchapter I (relating to Consent to Treatment with Psychoactive Medication--Mental Health Services); and

(4) may use telecommunications or information technology to provide competency restoration services that are compliant with the Health Insurance Portability and Accountability Act.

§307.163.Assessment, Reassessment and Court Reporting.

An OCR provider must:

(1) regularly evaluate the individual's progress towards attainment of competency to stand trial and likeliness to restore to competency in the foreseeable future; and

(2) report the individual's progress toward achieving competency to the court in accordance with Texas Code of Criminal Procedure, Article 46B.079:

(A) no later than the 14th day after the date competency restoration services begin;

(B) at least once each 30-day period following the date of the first report to the court after competency restoration services begin, if the individual is active in the program; and

(C) promptly report to the court the individual's attainment of competency or whether the individual is not likely to restore to competency in the foreseeable future.

§307.165.Discharge Requirements.

(a) When an OCR provider discharges an individual from OCR services upon completion of court-ordered participation in the OCR program, the OCR program must provide continuity of care services by coordinating the individual's continued services and supports after discharge from the OCR program. Discharge planning includes:

(1) a plan for maintaining housing and utilities for three months or more after discharge;

(2) coordination of ongoing services through an LMHA, LBHA, LIDDA, or other outpatient service to ensure continuity of care;

(3) the provision of medication and documentation of a scheduled psychiatric follow-up appointment after discharge;

(4) completion of all appropriate benefits applications on behalf of any individual, including signing up for long-term subsidized housing;

(5) confirmation that an assisted living facility to which an individual is referred is licensed under Texas Health and Safety Code Chapter 247 and Chapter 553 of this title (relating to Licensing Standards for Assisted Living Facilities) by contacting the HHSC Assisted Living Facility Licensing and Certification Unit, if applicable;

(6) coordination of appropriate transfer to an inpatient treatment facility, if applicable;

(7) coordination of appropriate transfer if returned to custody; and

(8) facilitation of service coordination with the LMHA, LBHA, or LIDDA of the individual's county of residence to ensure the individual's continuity of care.

(b) For an unplanned discharge, an OCR provider must:

(1) notify the court of unplanned discharges;

(2) make efforts to assist in facilitating service coordination with the LMHA, LBHA, or LIDDA in the individual's county of residence to ensure the individual's continuity of care; and

(3) document continuity of care efforts in the individual's medical record.

(c) An OCR provider must document the reasons for the individual's failure to complete the OCR program in the individual's record, if applicable.

(d) Before an individual is discharged from an OCR program, an OCR provider must collaborate with courts to encourage timely resolution of legal issues.

§307.167.Data.

In a format specified by HHSC, an OCR provider must collect and report data to HHSC biannually, within 30 days after the end of the second quarter and 30 days after the end of the state fiscal year, on the OCR program, including:

(1) the number of individuals charged with a felony ordered to the OCR program;

(2) the number of individuals charged with a misdemeanor ordered to the OCR program;

(3) the number of individuals who withdraw from the OCR program without the court's authorization;

(4) the number of individuals receiving an additional charge of a Class B misdemeanor or a higher category of offense while ordered to the OCR program;

(5) the number of individuals restored to competency within the time frame allotted by statute;

(6) the mean number of days from the day the court orders OCR to the day the individual begins participation in the OCR program;

(7) the mean number of days for an individual charged with a felony to restore to competency;

(8) the mean number of days for an individual charged with a misdemeanor to restore to competency;

(9) the number of individuals charged with a felony not restored to competency, for whom an extension was sought;

(10) the number of individuals charged with a misdemeanor not restored to competency, for whom an extension was sought;

(11) the number of individuals not restored to competency;

(12) the total costs associated with operating the OCR program; and

(13) the type of services provided other than psychiatric services and competency restoration education.

§307.169.Written Policies and Procedures.

An OCR provider must develop and implement written policies and procedures that outline processes for:

(1) maintaining a list of each staff member providing OCR services, including the staff members':

(A) position and credentials;

(B) reporting structure; and

(C) responsibilities;

(2) maintaining staff member training records;

(3) describing an individual's eligibility and ineligibility criteria for OCR services;

(4) screening an individual's appropriateness for OCR services;

(5) admitting an individual;

(6) developing a restoration plan;

(7) delivering all required components of competency restoration;

(8) admitting an individual:

(A) who has been referred by another LMHA, LBHA, or LIDDA who is within close physical proximity to the OCR program;

(B) who is without an OCR program in their service area; and

(C) where OCR services are potentially appropriate;

(9) documenting the types of services provided in the OCR program other than competency restoration services in accordance with §307.161 of this subchapter (relating to General Service Requirements);

(10) regularly monitoring, evaluating, and documenting the individual's progress towards attainment of competency to stand trial and likeliness to restore to competency in the foreseeable future in accordance with §307.163 of this subchapter (relating to Assessment, Reassessment, and Court Reporting);

(11) notifying the court:

(A) that the initial restoration period will expire and when it will expire;

(B) if the individual has attained competency or is not likely to attain competency in the foreseeable future;

(C) if an extension for continued restoration services is requested as specified in the Texas Code of Criminal Procedure Article 46B.080; and

(D) the individual's readiness to return to court;

(12) complying with reporting procedures specified in Texas Code of Criminal Procedure, Article 46B.079;

(13) preparing for an individual's planned or unplanned discharge from the OCR program and ensuring continuity of care in accordance with §307.165 of this subchapter (relating to Discharge Requirements), as appropriate; and

(14) educating individuals about their rights and participation in the OCR program.

§307.171.Staff Member Training.

An OCR provider must ensure staff members complete training and document evidence of training in the following:

(1) trauma informed care;

(2) cultural competency;

(3) rights of persons receiving OCR services in accordance with §307.173 of this subchapter (relating to Rights);

(4) identifying, preventing, and reporting abuse, neglect, and exploitation to the Texas Department of Family and Protective Services at 1-800-252-5400 or online at www.txabusehotline.org in accordance with applicable state laws and rules; and

(5) using a protocol for preventing and managing aggressive behavior, including de-escalation intervention techniques in accordance with 25 TAC Chapter 415, Subchapter F (relating to Interventions in Mental Health Services).

§307.173.Rights.

(a) An OCR provider must:

(1) inform the individual receiving OCR services of the individual's rights in accordance with 25 TAC Chapter 404, Subchapter E (relating to Rights of Persons Receiving Mental Health Services) or 40 TAC Chapter 4, Subchapter C (relating to Rights of Individuals with an Intellectual Disability), as applicable;

(2) provide the individual with a copy of the rights handbook published for an individual receiving mental health services or an individual with an ID; and

(3) explain to the individual receiving OCR services how to initiate a complaint and how to contact:

(A) the Ombudsman for complaints against the OCR provider; and

(B) the Texas protection and advocacy agency.

(b) The individual may contact the Ombudsman for additional information and resources, at any time, by calling toll-free at 1-800-252-8154 or online at hhs.texas.gov/ombudsman.

§307.175.Compliance with Statutes and Rules.

In addition to any applicable federal or state law or rule, an OCR provider must comply with:

(1) Texas Health and Safety Code Chapter 574;

(2) Texas Code of Criminal Procedure Chapter 46B;

(3) Health Insurance Portability and Accountability Act of 1996 and other applicable federal and state laws, including:

(A) Texas Health and Safety Code Chapter 241, Subchapter G;

(B) Texas Health and Safety Code Chapter 595;

(C) Texas Health and Safety Code Chapter 611; and

(D) Texas Health and Safety Code §533.009 and §614.017;

(4) 25 TAC Chapter 405, Subchapter K (relating to Deaths of Persons Served by TXMHMR Facilities or Community Mental Health and Mental Retardation Centers) as it relates to community-based services and community centers; and

(5) Chapter 306, Subchapter A of this title (relating to Standards for Services to Individuals with Co-occurring Psychiatric and Substance Use Disorders (COPSD)).

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 4, 2020.

TRD-202003682

Karen Ray

Chief Counsel

Health and Human Services Commission

Earliest possible date of adoption: October 25, 2020

For further information, please call: (512) 838-4352