TITLE 26. HEALTH AND HUMAN SERVICES

PART 1. HEALTH AND HUMAN SERVICES COMMISSION

CHAPTER 306. LOCAL MENTAL HEALTH AUTHORITY RESPONSIBILITIES

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

The Texas Health and Human Services Commission (HHSC) proposes new Chapter 306, Subchapter D, concerning Mental Health Services--Admission, Continuity, and Discharge. The new subchapter is comprised of Division 1, §§306.151 - 306.154, concerning General Provisions; Division 2, §§306.161 - 306.163, concerning 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; Division 3, §§306.171 - 306.178, concerning Admission to a State Mental Health Facility or a Facility with a Contracted Psychiatric Bed--Provider Responsibilities; Division 4, §§306.191 - 306.195, concerning Transfers and Changing Local Mental Health Authorities or Local Behavioral Health Authorities; Division 5, §§306.201 - 306.207, concerning Discharge and Absences from a State Mental Health Facility or Facility with a Contracted Psychiatric Bed; and Division 6, §306.221, concerning Training.

BACKGROUND AND PURPOSE

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 Texas Health and Human Services Commission (HHSC) on September 1, 2016, in accordance with Texas Government Code §531.0201 and §531.02011. HHSC proposes these new rules in Title 26, Chapter 306 to 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 proposed for repeal elsewhere in this issue of the Texas Register. The purpose of these rules is to establish guidelines for admission, transfers, and discharges from state hospitals; admissions, discharges, and transfers for 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 proposed 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.

SECTION-BY-SECTION SUMMARY

Proposed new §306.151 establishes the purpose of the subchapter and to whom it applies.

Proposed new §306.152 sets forth the subchapter's application to SMHFs, facilities with CPBs, and certain LMHAs, LBHAs, and managed care organizations (MCOs). The rule requires LMHAs and LBHAs to monitor network providers for compliance with Division 2 and Division 3 of the subchapter.

Proposed new §306.153 provides definitions for terminology used in the subchapter.

Proposed new §306.154 describes the rights of an individual to appeal, request a fair hearing, and receive a notification about an LMHA or LBHA decision to deny, reduce, suspend, discharge, transfer or terminate LMHA or LBHA services.

Proposed new §306.161 establishes the requirements for LMHA and LBHA screening and assessment of individuals in crisis; incorporates crisis alternative treatment options; defines individuals determined not to be in the mental health priority population; outlines the LMHA or LBHA responsibilities regarding the completion of an approved assessment tool to determine eligibility once the crisis has resolved; establishes the requirements for admission, continuity, and discharge practices for individuals in need of acute or extended acute mental health services provided through outpatient or inpatient treatment settings; and incorporates current organizational names and terminology.

Proposed new §306.162 sets forth the requirements for determining a county of residence for individuals seeking admission into LMHA or LBHA services. This section also requires the LMHA or LBHA to initiate or continue providing clinically necessary services, including discharge planning, during the dispute resolution process.

Proposed new §306.163 sets forth the requirements for LMHA or LBHA recommendation of the most appropriate and available treatment options, including outpatient and inpatient mental health services; requires the LMHA or LBHA to assign a continuity of care worker when an individual is admitted to a facility with a CPB or a SMHF; provides for community-based treatment alternatives; and allows an LMHA or LBHA referral to an alternate provider if an individual requests a referral.

Proposed new §306.171 establishes general admission criteria for SMHFs and CPBs; requires the LMHA or LBHA to screen and authorize an individual for admission to a SMHF or facility with a CPB and requires facilities notify the LMHA or LBHA if an individual arrives for treatment without being screened. The proposed rule also outlines the process for treatment and transfer, if necessary, of an individual with an emergency medical condition.

Proposed new §306.172 establishes admission criteria to a maximum security unit, and requires commitment pursuant to the Texas Code of Criminal Procedure or a determination of manifest dangerousness.

Proposed new §306.173 establishes criteria for admission to an adolescent forensic unit. An adolescent may be admitted to an adolescent forensic unit if determined manifestly dangerous, committed under the Texas Family Code, or the admission is a condition of the adolescent's probation or parole.

Proposed new §306.174 sets forth the admission criteria for Waco Center for Youth. The proposed new rule includes language regarding eligibility criteria and language to clarify endorsement of admission to an SMHF or facility with a CPB by the Community Resource Coordination Group is needed if the adolescent is currently receiving LMHA or LBHA services. If the Waco Center for Youth denies admission, the LAR has the opportunity to appeal the decision with the Ombudsman. The proposed new rule includes language to reflect the responsibilities of Waco Center for Youth when an adolescent requires admission to a psychiatric hospital and the requirements for discharge planning.

Proposed new §306.175 sets forth requirements for voluntary admission to a facility with a CPB or an SMHF in accordance with Texas Health and Safety Code, Chapter 572; describes a physician's responsibility to contact the LMHA or LBHA when an individual does not meet admission criteria to determine if community resources may appropriately serve the individual; and requires a physician to conduct a face-to-face examination of the individual requesting voluntary admission to a facility with the CPB or an SMHF.

Proposed new §306.176 sets forth the requirements for emergency detention to a facility with a CPB or to an SMHF and requires a preliminary examination by a physician no later than 12 hours after the individual is transported to a facility with a CPB or an SMHF for emergency detention. The proposed new rule also incorporates requirements concerning the intake assessment, which is to occur no later than 24 hours following admission for emergency detention.

Proposed new §306.177 establishes the requirements for admission to an SMHF or facility with a CPB for inpatient mental health services under an order of protective custody or court order.

Proposed new §306.178 sets forth the requirements for voluntary treatment following involuntary admission to an SMHF or facility with a CPB.

Proposed new §306.191 outlines the requirements for the transfer of individuals from one SMHF to another SMHF.

Proposed new §306.192 outlines the requirements for the transfer of individuals between an SMHF and SSLC.

Proposed new §306.193 outlines the requirements for the transfer of an individual between an SMHF and an out-of-state institution.

Proposed new §306.194 sets forth requirements for transfers between an SMHF and another facility in Texas, and establishes that the individual or individual's legally authorized representative, who made the request for voluntary admission, must consent to the transfer.

Proposed new §306.195 describes an LMHA's or LBHA's responsibilities when an individual transfers to a new LMHA or LBHA, and an SMHF's or facility with a CPB's responsibilities when an individual receiving inpatient services intends to transfer to a new LMHA or LBHA upon discharge from the SMHF or facility with a CPB.

Proposed new §306.201 establishes requirements regarding discharge planning responsibilities of the SMHF or the facility with a CPB and the LMHA or LBHA; describes the process for resolving disagreements between the LMHA or LBHA and the SMHF or facility with a CPB treatment team's decision concerning discharge; and the requirements for documenting unexpected discharges.

Proposed new §306.202 sets forth the requirements for special considerations for populations of individuals admitted to an SMHF or facility with a CPB including individuals admitted three or more times in a 180-day period, individuals eligible for preadmission screening and resident review (PASRR), individuals on absence for trial placement (ATP), individuals appropriate for assisted living post discharge, and offenders with special needs. The proposed new rule requires discharge planning to include recovery-based, trauma-informed, and person-centered models of care.

Proposed new §306.203 sets forth the requirements for when an SMHF or a facility with a CPB must discharge an individual who was voluntarily admitted to an SMHF or a facility with a CPB.

Proposed new §306.204 establishes the requirements for the discharge of an individual who was involuntarily admitted to an SMHF or facility with a CPB and directs the administrator of an SMHF or facility with a CPB to forward the discharge packet of an individual committed under the Code of Criminal Procedure to the jail and to the LMHA or LBHA.

Proposed new §306.205 sets forth the requirements for an authorized and unauthorized pass or furlough from an SMHF or facility with a CPB for an involuntary individual admitted under court order for inpatient mental health services.

Proposed new §306.206 sets forth the requirements for ATP from an SMHF or facility with a CPB and describes the responsibilities of an LMHA, LBHA, SMHF, and a facility with a CPB regarding the ATP.

Proposed new §306.207 requires an LMHA or LBHA to contact an individual following discharge or ATP from an SMHF or a facility with a CPB; implement the individual's recovery or treatment plan post discharge or ATP; develop or review an individual's recovery or treatment plan in accordance with 25 TAC §412.322 (relating to Provider Responsibilities for Treatment Planning and Service Authorization); and describes the LMHA's or LBHA's responsibility when an individual's recovery or treatment plan identifies the designated LMHA or LBHA as responsible for providing or paying for the individual's psychoactive medications.

Proposed new §306.221 sets forth training and documentation requirements related to screening staff and intake assessment professionals performed pursuant to the subchapter and codified in Texas Health and Safety Code §572.0025.

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;

(6) the proposed rules will not 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 may be an adverse economic effect on small businesses, micro-businesses or rural communities.

The proposed rules require 37 LMHAs and 2 LBHAs to add specific requirements to provider contracts to ensure compliance with screening and assessment for crisis services, admission into LMHA or LBHA services, and admission into an SMHF or facility with a CPB. HHSC lacks sufficient data to estimate the number of those facilities designated as a small business, micro-business, or rural community impacted by the proposed rules.

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 Intellectual and Developmental Disorders-Behavioral Health Services, has determined that for each year of the first five years the rules are in effect, the public benefit will be to reduce or eliminate barriers to accessing care and to transition between and among system components for individuals receiving HHSC-funded mental health services by ensuring clinically appropriate treatment based on level of acuity and needs; timely access to evaluation and treatment services in the least restrictive and most appropriate setting of care; and uninterrupted services during transition between service types or providers.

Trey Wood has also determined that for the first five years the rules are in effect, persons who are required to comply may incur economic costs. The proposed rules require LMHAs and LBHAs to add specific requirements to provider contracts to ensure compliance with screening and assessment for crisis services, admission into LMHA or LBHA services, and admission into an SMHF or facility with a contracted psychiatric bed. HHSC assumes that some LMHAs and LBHAs may be currently monitoring providers but lacks sufficient information regarding current monitoring practices. Therefore, the costs to persons required to comply cannot be determined at this time.

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 e-mailed 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) e-mailed 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 e-mailed before midnight on the following business day to be accepted. When e-mailing comments, please indicate "Comments on Proposed Rule 25R018" in the subject line.

DIVISION 1. GENERAL PROVISIONS

26 TAC §§306.151 - 306.154

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

§306.151.Purpose.

The purpose of this subchapter is to address the interrelated roles and responsibilities of state mental health facilities, local mental health authorities, and local behavioral health authorities in the delivery of mental health services to individuals. This subchapter establishes criteria and provides guidelines related to:

(1) clinically appropriate patient placement based on screening and assessment of the individual;

(2) timely access to evaluation and mental health treatment services in the least restrictive, most appropriate setting of care; and

(3) effectively, and without interruption, transitioning care between service types and providers for individuals receiving mental health services at state mental health facilities, local mental health authorities, and local behavioral health authorities.

§306.152.Application and Responsibility for Compliance.

(a) This subchapter applies to:

(1) a state mental health facility (SMHF);

(2) a facility with a contracted psychiatric bed (CPB);

(3) a local mental health authority (LMHA) or a local behavioral health authority (LBHA);

(4) an LMHA or LBHA with a local service area that is served by a managed care organization (MCO), to the extent the contract between the Health and Human Services Commission (HHSC) and the LMHA or LBHA requires compliance with one or more provisions of this subchapter; and

(5) an MCO, as required by the managed care contracts between HHSC and the MCO for delivery of Medicaid and CHIP managed care products.

(b) Responsibility for Compliance. An LMHA or LBHA:

(1) must require by contract with providers in its network, that the providers comply with Division 2 of this subchapter (relating to 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) and Division 3 of this subchapter (relating to Admission to a State Mental Health Facility or a Facility with a Contracted Psychiatric Bed--Provider Responsibilities); and

(2) must monitor its providers for compliance with the contract and the requirements in Division 2 and Division 3 of this subchapter.

§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; or

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

(6) Alternate provider--An entity that provides mental health services or substance abuse 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 provide assistance to 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 between the individual and the individual's family, as requested by the individual.

(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 voluntary 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 abuse) 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) 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 26 TAC Chapter 510 (relating to Private Psychiatric Hospitals and Crisis Stabilization Units).

(34) Intake assessment--The administrative process conducted by an assessment professional for gathering information about a prospective patient and giving a prospective patient information about the facility and the facility's treatment and services.

(35) Involuntary individual--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.

(36) 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 includes:

(i) a parent, non-Department of Family and Protective Services managing conservator or guardian of 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)(1)-(3), Texas Family Code, who may request from a district court authorization under Texas Family Code, Chapter 35 for the temporary admission of a minor who has been within their care for the past six months.

(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.

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

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

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

(40) 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.

(41) 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.

(42) 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.

(43) 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.

(44) Mental illness--Any clinical disorder as defined in the current edition of the Diagnostic and Statistical Manual of Mental Disorders published by the American Psychiatric Association.

(45) 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.

(46) Minor--An individual under 18 years of age.

(47) 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.

(48) 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.

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

(50) 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)).

(51) 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.

(52) 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.

(53) Peer specialist--A person who uses lived experience with mental health challenges, in addition to skills learned in formal training, to deliver strengths-based, person-centered services to promote an individual's recovery and resiliency. A peer specialist must:

(A) be at least 18 years of age or older;

(B) have received:

(i) a high school diploma; or

(ii) a high school equivalency certificate issued in accordance with the law of the issuing state;

(C) be willing to appropriately share his or her own recovery story with individuals in services; and

(D) be able to demonstrate current self-directed recovery.

(54) 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.

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

(56) QMHP-CS--Qualified mental health professional-community services. A staff member who meets the requirements and performs the functions described in 25 TAC Chapter 412, Subchapter G (relating to Mental Health Community Services Standards).

(57) 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.

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

(A) is 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 25 TAC §412.303 (relating to Definitions);

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

(C) guides the recovery treatment process and fostering resiliency;

(D) is completed in conjunction with the uniform assessment;

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

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

(59) 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.

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

(61) 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.

(62) 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 abuse or substance dependence as described in the current edition of the Diagnostic and Statistical Manual of Mental Disorders (DSM) published by the American Psychiatric Association.

(63) TAC--Texas Administrative Code.

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

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

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

(67) 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.

(68) Uniform assessment--An assessment tool adopted by HHSC under 25 TAC §412.322 (relating to Provider Responsibilities for Treatment Planning and Service Authorization) used for recommending an individual's level of care.

(69) Voluntary individual--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).

§306.154.Notification and Appeals Process for Local Mental Health Authority or Local Behavioral Health Authority Services.

(a) Right of an individual eligible for Medicaid to request a fair hearing. Any individual eligible for Medicaid whose request for eligibility to receive LMHA or LBHA services is denied or is not acted upon with reasonable promptness, or whose services have been terminated, suspended, or reduced by HHSC, is entitled to a fair hearing in accordance with 1 TAC Chapter 357, Subchapter A (relating to Uniform Fair Hearings Rules).

(b) Right of an individual not eligible for Medicaid to request an appeal. Any individual who has not applied for or is not eligible for Medicaid, whose request for eligibility to receive LMHA or LBHA services is denied or is not acted upon with reasonable promptness, or whose services have been terminated, suspended, or reduced by a provider, is entitled to notification and right of appeal in accordance with 25 TAC §401.464 (relating to Notification and Appeals Process).

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

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 November 15, 2019.

TRD-201904300

Karen Ray

Chief Counsel

Health and Human Services Commission

Earliest possible date of adoption: December 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 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.

The proposed 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 25 TAC §412.314 (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 at least a QMHP-CS 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 25 TAC §412.322(a) (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.

(3) An LMHA or LBHA must serve an individual in accordance with 25 TAC §412.314.

(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 is 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, 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 residing 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 takes action 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 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 November 15, 2019.

TRD-201904301

Karen Ray

Chief Counsel

Health and Human Services Commission

Earliest possible date of adoption: December 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 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.

The proposed 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) an SMHF or facility with a CPB physician determines if the individual has an emergency medical condition.

(d) An LMHA or LBHA must authorize an individual's admission to an SMHF or a facility with a CPB:

(1) If the physician of an SMHF or facility with a CPB determines the individual has an emergency medical condition, 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 SMHF or facility with the CPB 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.

(2) If the SMHF or facility with a CPB determines that the individual does not have an emergency medical condition, the facility contacts the designated LMHA or LBHA to coordinate alternate services as appropriate.

§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 and the adolescent:

(A) on the basis of 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 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 an adolescent if the adolescent:

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

(2) is acutely psychotic, suicidal, homicidal, or seriously violent; or

(3) 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, 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 physician contacts the LMHA or LBHA to discuss the availability and transfer of the individual to community services.

(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 for the following:

(A) an assessment for medical stability; and

(B) a psychiatric examination, and, if indicated, a substance abuse 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 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 information about:

(A) finances;

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

(C) 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 a voluntary individual 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 abuse 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 SMHF or facility with a CPB contacts the designated LMHA or LBHA to coordinate alternate services as clinically indicated.

(3) In accordance with Texas Health and Safety Code §576.007(a), if an adult individual is not admitted on emergency detention, the SMHF or facility with a CPB makes a reasonable effort to notify the family of the adult individual before he or she is released, if the individual grants permission for the notification.

(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 information about:

(A) finances;

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

(C) 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 information about:

(A) finances;

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

(C) 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 involuntary individual after the involuntary individual is eligible for discharge as described in §306.204 of this subchapter (relating to Discharge of an Involuntary Individual), 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 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 November 15, 2019.

TRD-201904302

Karen Ray

Chief Counsel

Health and Human Services Commission

Earliest possible date of adoption: December 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 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.

The proposed 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, 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;

(4) geographical proximity to the individual's family; and

(5) input from the designated LMHA or LBHA.

(c) A voluntary individual 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.

§306.192.Transfers Between a State Mental Health Facility and a State Supported Living Center.

(a) For an individual transferring from an SMHF to an SSLC:

(1) the following rules and statutes govern the transfer:

(A) 25 TAC §412.272 (relating to Transfer of an Individual from a State MR Facility to a State MH Facility);

(B) 40 TAC Chapter 2, Subchapter F, Division 3 (relating to Transfers); and

(C) Texas Health and Safety Code §575.013 and §575.017; and

(2) the SMHF must not transfer the individual before the judge of the committing court enters an order approving the transfer.

(b) For an individual transferring from an SSLC to an SMHF:

(1) 25 TAC §412.272 and Texas Health and Safety Code §594.034 govern the transfer; and

(2) the receiving SMHF notifies the designated LMHA or LBHA or the designated LIDDA of the transfer.

§306.193.Transfers Between a State Mental Health Facility and an Out-of-State Institution.

A transfer between an SMHF and an out-of-state facility is governed by 1 TAC Chapter 383 (relating to Interstate Compact on Mental Health and Mental Retardation).

§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 a voluntary individual 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 designated 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) open access processes 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) obtain access information for the receiving LMHA or LBHA and communicate this to the individual;

(D) facilitate the intake at the new LMHA or LBHA once the relocation has been confirmed by either assisting with setting up an intake appointment or assuring the individual is aware of open access procedures;

(E) submit to the receiving LMHA or LBHA treatment information pertinent to the individual's continuity of care within seven days after approval of the transfer request;

(F) 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;

(G) 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;

(H) conduct an intake assessment in accordance with 25 TAC §412.322(a) (relating to Provider Responsibilities for Treatment Planning and Service Authorization) and determine whether the individual should receive services immediately or be placed on a waiting list for services; and

(I) 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 original LMHA or LBHA:

(A) the receiving LMHA or LBHA must:

(i) initiate transition planning with the original 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 25 TAC §412.322(a) 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 original 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 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 original LMHA or LBHA, if the individual was receiving LMHA or LBHA services from the original 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 original LMHA or LBHA, if the individual was receiving LMHA or LBHA services from the original 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 original LMHA or LBHA before admission to the SMHF or facility with a CPB, the original 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 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 November 15, 2019.

TRD-201904303

Karen Ray

Chief Counsel

Health and Human Services Commission

Earliest possible date of adoption: December 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 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.

The proposed 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 notify persons involved in discharge planning of scheduled staffings and reviews.

(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 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 26 TAC Chapter 303 (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 recommended 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, 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 individual 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 adult, the SMHF or facility with a CPB makes a reasonable effort to notify the adult's family 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 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. Copies of available, pertinent, current summaries and assessments may be omitted.

(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 and the county jail has agreed to provide the needed services.

(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 individual's condition at discharge;

(C) a description of the individual's placement after discharge;

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

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

(F) a description of the amount of medication the individual will need until the individual is evaluated by a physician.

(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 to be 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 best use of the clinical services, including recovery-based, trauma-informed, and person-centered models of care;

(2) include in the recovery or treatment plan:

(A) for 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 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 26 TAC §303.301 (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 26 TAC Chapter 303.

(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 25 TAC §412.322(a) (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 25 TAC §412.322(a) 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 a Voluntary Individual.

(a) An SMHF or facility with a CPB must discharge a voluntary individual 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 a voluntary individual 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)(2) 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)(3) 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 individual continues treatment as a voluntary patient; 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 Involuntary Individual.

(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 involuntary individual 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.

(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 a Voluntary Individual) or §306.204(c) of this division (relating to Discharge of an Involuntary Individual), 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; and

(ii) 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 25 TAC §412.322(e) (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 reasons it 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 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 November 15, 2019.

TRD-201904304

Karen Ray

Chief Counsel

Health and Human Services Commission

Earliest possible date of adoption: December 29, 2019

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


DIVISION 6. TRAINING

26 TAC §306.221

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. 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 proposed new sections implement 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 25 TAC §412.322 (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 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 November 15, 2019.

TRD-201904305

Karen Ray

Chief Counsel

Health and Human Services Commission

Earliest possible date of adoption: December 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 Executive Commissioner of the Texas Health and Human Services Commission (HHSC) proposes in Title 26, Texas Administrative Code, Chapter 748, Minimum Standards for General Residential Operations, the repeal of §748.301, concerning What is a serious incident; new §748.301, concerning What do certain terms mean in this subchapter; amendments to §748.303, concerning When must I report and document a serious incident, and §748.313, concerning What additional documentation must I include with a written serious incident report; and new Division 6, Unauthorized Absences, consisting of new §§748.451, 748.453, 748.455, 748.457, 748.459, 748.461, and 748.463.

BACKGROUND AND PURPOSE

The purpose of the proposal is to address the issue of unauthorized absences of children from General Residential Operations (GRO) by requiring GROs to take additional actions when a child leaves the operation without permission (unauthorized absence). Runaways are a national issue, particularly for children in foster care.

Current rules require GROs to document when a child is absent and cannot be located for a specified time frame, depending on the age and development level of the child. The proposed repeal, amendments, and new rules 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 time frame, 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.

SECTION-BY-SECTION SUMMARY

The proposed repeal of §748.301 deletes the definition of serious incident, because definitions have been expanded in proposed new §748.301.

Proposed new §748.301 defines terms that are used in Subchapter D, Reports and Record Keeping, including the repealed content of §748.301 and new definitions for "triggered review of a child's unauthorized absences," and "unauthorized absence."

The proposed amendment to §748.303 replaces the phrase "absent from your operation and cannot be located, including the removal of a child by an unauthorized person" in (a)(7) - (9) with the term "unauthorized absence," which has been defined in §748.301; adds a reference to §748.311 in subsection (b) regarding how to document a serious incident; adds a new subsection (c) that requires a GRO to document an unauthorized absence that does not meet the reporting time requirements in subsection (a) in the same manner as a serious incident; re-letters subsections accordingly; and updates a reference in subsection (e)(6) to reflect the correct rule number and title.

The proposed amendment to §748.313 replaces the phrase "child absent without permission" in paragraph (3) with "unauthorized absence of a child," and adds requirements for a GRO to complete certain information when documenting the unauthorized absence of a child, including whether the child has returned to the operation, how long the child was gone, and an addendum to the serious incident report to finalize the documentation requirements if the child returns to the operation after 24 hours.

Proposed new §748.451 describes the additional requirements the operation must conduct related to the unauthorized absences of a child from an operation. This rule summarizes the requirements described in the remaining rules in proposed new Division 6.

Proposed new §748.453 requires the operation to maintain an annual summary log of each time a child has an unauthorized absence, document certain information in the log, maintain the annual log for five years, and make the log available to Licensing upon request.

Proposed new §748.455 describes the requirements for debriefing a child within 24 hours after an unauthorized absence, including what must be discussed with the child in the debriefing, allowing the child to return to routine activities as appropriate, and documenting the debriefing in the child's record.

Proposed new §748.457 requires an operation to conduct a triggered review of a child's unauthorized absences no later than 30 days after the child's third unauthorized absence within a 60-day time frame and describes when a regularly scheduled review of a child's service plan can serve as the triggered review.

Proposed new §748.459 outlines who must participate in a triggered review of a child's unauthorized absences: the child, an individual designated to make decisions regarding the child's participation in childhood activities, and the child's case manager. The rule also requires that the child's parent be notified at least two weeks before the triggered review to give the parent an opportunity to participate in the review.

Proposed new §748.461 requires that a triggered review of a child's unauthorized absences include a review of the child's records documenting previous unauthorized absences, a review of certain service plan elements, an examination of alternatives to minimize the unauthorized absences, and a written plan, documented in the child's record, to reduce the unauthorized absences.

Proposed new §748.463 requires the operation to conduct an overall operation evaluation every six months for unauthorized absences that have occurred during that time frame, which must include the frequency and patterns of unauthorized absences and specific strategies to reduce the number of unauthorized absences; maintain the results of the evaluation for five years; and make the evaluation available to Licensing upon request.

FISCAL NOTE

Greta Rymal, Deputy Executive Commissioner for Financial Services, 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;

(6) the proposed rules will expand 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

Greta Rymal has determined that there will be an adverse economic effect on small businesses and micro-businesses, but no adverse economic effect on rural communities. The HHSC 2018 Data Book for Child Care Licensing states that there are 258 GROs. Of the 258 GROs, it is estimated that only 25 percent (or 65 GROs) are small businesses, and 16 percent (or 41 GROs) are micro-businesses. No GROs are rural communities. These numbers are consistent with the responses obtained from an April 2013 Feedback Survey.

HHSC anticipates that GROs may incur a cost to comply with the proposed rules. The new rules will require residential facilities to maintain a summary log of all unauthorized absences (those that must be reported or otherwise), in addition to the current requirement to report certain unauthorized absences. Child Care Licensing does not currently have historical data on the total number of unauthorized absences of children from GROs and is unable to predict the number of unauthorized absences that may occur at each GRO and what the impact of the new and amended rules will be to each GRO. However, it is possible to project an average "unit cost" for certain activities required by the new and amended rules. To comply with these rule changes, GRO staff will be required to spend additional time documenting unauthorized absences in a child's record and in an annual summary log for unauthorized absences, participating in triggered reviews for each child who has three unauthorized absences within a 60-day time frame, and conducting overall operation evaluations every six months for those operations that have any unauthorized absences. Child Care Licensing also does not know the current workload of GRO case managers and administrators, which presumably varies with each GRO. In many instances, the staff may be able to incorporate these additional requirements into their current workload.

The staff time required to comply with these changes will impact GRO case managers and administrators. To estimate the wages for the GRO staff, Licensing gathered data from the Department of Family and Protective Services 2018 Data Book.

For use in the impact analysis, HHSC calculated hourly wages for each of these categories of GRO staff as follows (actual salaries paid to staff by a GRO may be greater or less than the averages used for these projections):

GRO Case Manager - The 2018 average salary for Child Protective Services (CPS) caseworkers was used to determine the salary costs for GRO case managers. The FY 2018 average salary for a CPS caseworker is $4,366.25 per month or $25.19 per hour ($4,366.25 ÷ 173.33 hours per month).

GRO Administrators - The 2018 average salary for CPS program administrators and district directors was used to determine the salary costs for GRO administrators. The FY 2018 average salary for a CPS administrator/director is $5,547.83 per month or $32.00 per hour ($5,547.83 ÷ 173.33 hours per month).

Fiscal impact relating to §748.303 and §748.453 for documenting unauthorized absences in a child's record and in an annual summary log for unauthorized absences: This fiscal impact results from the amendment in §748.303, which adds subsection (c) that requires documentation of unauthorized absences that do not meet the reporting requirements defined in §748.303 (a)(7) - (9). This fiscal impact also results from proposed new §748.453, which requires, in part, a GRO to document information regarding unauthorized absences for a child in an annual summary log. It is anticipated that the GRO case manager will spend an average of 30 minutes to an hour documenting an unauthorized absence. Therefore, the cost will be approximately between $12.60 and $25.19 per unauthorized absence ($25.19 X 0.5 hours and $25.19 X 1 hour). Some GROs may already be maintaining an annual summary log of unauthorized absences, so there would be no additional costs for those GROs.

Fiscal impact relating to §748.459 for triggered reviews for unauthorized absences: Proposed new §748.459 requires a child's case manager to participate in a triggered review for unauthorized absences when the child has incurred three unauthorized absences in a 60-day time frame. Licensing estimates that a GRO case manager will spend, on average, between one and two hours participating in a triggered review for unauthorized absences. Therefore, the cost will be approximately between $25.19 and $50.38 per triggered review ($25.19 X 1 hour and $25.19 X 2 hours).

Fiscal impact relating to §748.463 for overall operation evaluation for unauthorized absences: Proposed new §748.463 requires an operation to conduct an overall operation evaluation for unauthorized absences every six months. Licensing estimates that a GRO administrator and three case managers will spend approximately two hours in a meeting discussing the overall operation evaluation, and the GRO administrator will spend an additional four to six hours completing the evaluation. Therefore, the cost will be approximately between $343.14 and $407.14 [($25.19 X 2 hours X 3 case managers) + ($32 X 6 hours) or [($25.19 X 2 hours X 3 case managers) + ($32 X 8 hours) per evaluation, or $686.28 and $814.28 annually.

HHSC determined that alternative methods to achieve the purpose of the proposed rules for small businesses and micro-businesses would not be consistent with ensuring the health and safety of children in foster care.

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.

PUBLIC BENEFIT AND COSTS

Jean Shaw, Associate Commissioner for Child Care Licensing, has determined that for each year of the first five years the rules are in effect, the public benefit will be an increase in safety of children in residential care by clarifying provider requirements, preventing future absences of children who regularly have unauthorized absences, and decreasing the overall number of unauthorized absences.

Greta Rymal 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, as previously explained under the section entitled Small Businesses, Micro-Businesses, and Rural Community Impact Analysis.

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 Gerry Williams at (512) 438-5559 in the Child Care Licensing Department of the HHSC Regulatory Services Division or by e-mail to Gerry.Williams@hhsc.state.tx.us.

Written comments on the proposal may be submitted to Gerry Williams, Rules Developer (19R020), Child Care Licensing, Health and Human Services Commission E-550, P.O. Box 149030, Austin, Texas 78714-9030, and electronic comments may be submitted to CCLrules@hhsc.state.tx.us.

To be considered, comments must be submitted no later than 31 calendar 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) e-mailed by 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 e-mailing comments, please indicate "Comments on Proposed Rule 19R020" in the subject line.

DIVISION 1. REPORTING SERIOUS INCIDENTS AND OTHER OCCURRENCES

26 TAC §748.301

STATUTORY AUTHORITY

The repeal 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.

The repeal affects Texas Government Code §531.0055 and Human Resources Code §42.042.

§748.301.What is a serious incident?

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 November 18, 2019.

TRD-201904313

Karen Ray

Chief Counsel

Health and Human Services Commission

Earliest possible date of adoption: December 29, 2019

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


26 TAC §§748.301, 748.303, 748.313

STATUTORY AUTHORITY

The new rule and 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.

The new rule and amendments affect Texas Government Code §531.0055 and Human Resources Code §42.042.

§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 title (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 time frame.

(3) Unauthorized absence--A child is absent from 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 time frames:

Figure: 26 TAC §748.303(a) (.pdf)

[Figure: 26 TAC §748.303(a)]

(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 title (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 title; 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) [(c)] 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 [Law] enforcement, as outlined in the chart above;

(2) the [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) [(d)] 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 time frame:

Figure: 26 TAC §748.303(e) (.pdf)

[Figure: 26 TAC §748.303(d)]

§748.313.What additional documentation must I include with a written serious incident report?

You must include the following additional documentation with a written serious incident report, as applicable:

Figure: 26 TAC §748.313 (.pdf)

[Figure: 26 TAC §748.313]

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 November 18, 2019.

TRD-201904314

Karen Ray

Chief Counsel

Health and Human Services Commission

Earliest possible date of adoption: December 29, 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 new rules 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.

The new rules affect Texas Government Code §531.0055 and Human Resources Code §42.042.

§748.451.What additional requirements are there for unauthorized absences of children from my operation?

(a) For each unauthorized absence of a child, you must:

(1) document the unauthorized absence in an annual summary log, as required by §748.453 of this title (relating to What documentation must be included in an annual summary log for a child who has an unauthorized absence?); and

(2) debrief the child, as required by §748.455 of this title (relating to What are the requirements for debriefing a child after an unauthorized absence?).

(b) If a child has three unauthorized absences within a 60-day time frame, you must conduct a triggered review of the child's unauthorized absences that is consistent with the rules in this division.

(c) You must conduct an overall operation evaluation for unauthorized absences every six months, as required by §748.463 of this title (relating to What is an overall operation evaluation for unauthorized absences?).

§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; and

(5) whether law enforcement was contacted, including the name of any law enforcement agency that was contacted, 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 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.

§748.457.When must a triggered review of a child's unauthorized absences occur?

(a) A triggered review of a child's unauthorized absences must occur as soon as possible, but no later than 30 days after the child's third unauthorized absence within a 60-day time frame.

(b) A regularly scheduled review of the child's service plan can serve as the triggered review of a child's unauthorized absences, if the regularly scheduled review:

(1) meets the requirements in §748.461 of this title (relating to What must the triggered review of a child's unauthorized absences include?); and

(2) takes place no later than 30 days after the child's third unauthorized absence within a 60-day time frame.

§748.459.Who must participate in a triggered review of a child's unauthorized absences?

(a) The triggered review of a child's unauthorized absences must include the following participants:

(1) the child;

(2) an individual designated to make decisions regarding the child's participation in childhood activities, as described in §748.707 of this title (relating to Who makes the decision regarding a foster child's participation in childhood activities?); and

(3) the child's case manager.

(b) You must notify the child's parent at least two weeks before the triggered review of a child's unauthorized absences, so the parent will have an opportunity to participate in the review.

§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 title (relating to What must a child's initial service plan include?);

(3) an examination of 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 an 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 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 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 November 18, 2019.

TRD-201904315

Karen Ray

Chief Counsel

Health and Human Services Commission

Earliest possible date of adoption: December 29, 2019

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


CHAPTER 749. MINIMUM STANDARDS FOR CHILD-PLACING AGENCIES SUBCHAPTER D. REPORTS AND RECORD KEEPING

The Executive Commissioner of the Texas Health and Human Services Commission (HHSC) proposes the following rulemaking actions in Title 26, Texas Administrative Code, Chapter 749, Minimum Standards for Child-Placing Agencies: the repeal of §749.501, concerning What is a serious incident; new §749.501, concerning What do certain terms mean in this subchapter; amendments to §749.503, concerning When must I report and document a serious incident, and §749.513, concerning What additional documentation must I include with a written serious incident report; and new Division 5, Unauthorized Absences, consisting of new §§749.590 - 749.596.

BACKGROUND AND PURPOSE

The purpose of the proposal is to address the issue of unauthorized absences of children placed in foster homes by requiring child-placing agencies (CPAs) to take additional actions when a child leaves a foster home without permission (unauthorized absence). Runaways are a national issue, particularly for children in foster care.

Current rules require CPAs to document when a child is absent and cannot be located for a specified time frame, depending on the age and development level of the child. The proposed repeal, amendments, and new rules 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 time frame, 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 foster homes within each agency.

SECTION-BY-SECTION SUMMARY

The proposed repeal of §749.501 deletes the definition of serious incident, because definitions have been expanded in proposed new §749.501.

Proposed new §749.501 defines terms that are used in Subchapter D, Reports and Record Keeping, including the repealed content of §749.501 and new definitions for "triggered review of a child's unauthorized absences," and "unauthorized absence."

The proposed amendment to §749.503 replaces the phrase "absent from a foster home and cannot be located, including the removal of a child by an unauthorized person" in (a)(7) - (9) with the term "unauthorized absence," which has been defined in §749.501; adds a reference to §749.511 in subsection (b) regarding how to document a serious incident; adds a new subsection (c) that requires a CPA to document an unauthorized absence that does not meet the reporting time requirements in subsection (a) in the same manner as a serious incident; re-letters subsections accordingly; and updates a reference in subsection (e)(6) to reflect the correct rule number and title.

The proposed amendment to §749.513 replaces the phrase "child absent without permission" in paragraph (3) with "unauthorized absence of a child," and adds requirements for agencies to complete certain information when documenting the unauthorized absence of a child, including whether the child has returned to the foster home, how long the child was gone, and completing an addendum to the serious incident report to finalize the documentation requirements if the child returns to the foster home after 24 hours.

Proposed new §749.590 describes the additional requirements the agency must conduct related to the unauthorized absence of a child from a foster home. This rule summarizes the requirements described in the remaining rules in proposed new Division 5.

Proposed new §749.591 requires the agency to maintain an annual summary log of each time a child has an unauthorized absence, document certain information in the log, maintain the annual log for five years, and make the log available to Licensing upon request.

Proposed new §749.592 describes the requirements for debriefing a child within 24 hours after an unauthorized absence, including what must be discussed with the child in the debriefing, allowing the child to return to routine activities as appropriate, and documenting the debriefing in the child's record.

Proposed new §749.593 requires an agency to conduct a triggered review of a child's unauthorized absences no later than 30 days after the child's third unauthorized absence within a 60-day time frame and describes when a regularly scheduled review of a child's service plan can serve as the triggered review.

Proposed new §749.594 outlines who must participate in a triggered review of a child's unauthorized absences: the child, foster parent, and child placement staff. The rule also requires that the child's parent be notified at least two weeks before the triggered review to give the parent an opportunity to participate in the review.

Proposed new §749.595 requires that a triggered review of a child's unauthorized absences include a review of the child's records documenting previous unauthorized absences, a review of certain service plan elements, an examination of alternatives to minimize the unauthorized absences, and a written plan in the child's record, to reduce the unauthorized absences.

Proposed new §749.596 requires the agency to conduct an overall agency evaluation every six months for unauthorized absences that have occurred during that time frame, which must include the frequency and patterns of unauthorized absences and specific strategies to reduce the number of unauthorized absences; maintain the results of the evaluation for five years; and make the evaluation available to Licensing upon request.

FISCAL NOTE

Greta Rymal, Deputy Executive Commissioner for Financial Services, 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. The Department of Family and Protective Services (DFPS) has a Child Protective Services (CPS) program that operates 11 certified CPAs in each region of the state, and the CPS foster and adoption development (FAD) staff would be responsible for performing the new duties required under these new rules. However, it is anticipated that the FAD staff time needed to perform these additional duties can be absorbed within existing resources.

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;

(6) the proposed rules will expand 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

Greta Rymal has determined that there will be an adverse economic effect on small businesses and micro-businesses, but no adverse economic effect on rural communities. The amendments and new rules apply to CPAs that provide foster care services (which can be foster care services only, or both foster care and adoption services). The HHSC 2018 Data Book for Child Care Licensing states that there are 236 CPAs. Of those, it is estimated that 184 CPAs provide foster care services. The other estimated 52 CPAs provide adoption only services and will not be discussed in this fiscal impact analysis because the rule changes do not impact the CPAs that provide adoption only services.

Of the 184 CPAs that provide foster care service, 173 are private CPAs. There are also 11 CPS certified CPAs. The 11 CPS certified CPAs will not be discussed in this section of the fiscal impact analysis because they do not meet the legal definition of a small business or micro-business. However, the possible impact to DFPS was discussed in the Fiscal Note section concerning the impact to state and local government.

Of the remaining 173 CPAs that provide foster care services, it is estimated that only 15 percent (or 26 CPAs) would meet the definition of a small businesses, because most of the CPAs are not for-profit businesses. Of these 26 CPAs, it is estimated that almost all of them are small businesses and half of them (or 13 CPAs) are micro-businesses. (Note: Foster parents are not being counted as employees.) No CPAs are rural communities.

HHSC anticipates that CPAs may incur a cost to comply with the proposed rules. The new rules will require residential facilities to maintain a summary log of all unauthorized absences (those that must be reported or otherwise), in addition to the current requirement to report certain unauthorized absence Child Care Licensing does not currently have historical data on the total number of unauthorized absences of children from foster homes and is unable to predict the number of unauthorized absences that may occur under each CPA and what the impact of the new and amended rules will be to each CPA. However, it is possible to project an average "unit cost" for certain activities required by the new and amended rules. To comply with these rule changes, CPA child placement staff and administrators will be required to spend additional time documenting unauthorized absences in a child's record and in an annual summary log for unauthorized absences, participating in triggered reviews for each child who has three unauthorized absences within a 60-day time frame, and conducting overall agency evaluations every six months for those agencies that have any unauthorized absences. Child Care Licensing also does not know the workload of current CPA child placement staff and administrators, which presumably varies with each CPA. In many instances, the staff may be able to incorporate these additional requirements into their current workload.

The staff time required to comply with these changes will impact CPA child placement staff and administrators. To estimate the wages for the CPA staff, Licensing gathered data from the DFPS 2018 Data Book.

For use in the impact analysis, HHSC calculated hourly wages for each of these categories of CPA staff as follows (actual salaries paid to staff by a CPA may be greater or less than the averages used for these projections):

CPA Child Placement Staff - The 2018 average salary for CPS caseworkers was used to determine the salary costs for CPA child placement staff. The FY 2018 average salary for a CPS caseworker is $4,366.25 per month or $25.19 per hour ($4,366.25 ÷ 173.33 hours per month).

CPA Administrators - The 2018 average salary for CPS program administrators and district directors was used to determine the salary costs for CPA administrators. The FY 2018 average salary for a CPS administrator/director is $5,547.83 per month or $32.00 per hour ($5,547.83 ÷ 173.33 hours per month).

Fiscal impact relating to §749.503 and §749.591 for documenting unauthorized absences in a child's record and in an annual summary log for unauthorized absences: This fiscal impact results from the amendment in §749.503, which adds subsection (c) that requires documentation of unauthorized absences that do not meet the reporting requirements defined in §749.503 (a)(7) - (9). This fiscal impact also results from proposed new §749.591, which requires, in part, a CPA to document information regarding unauthorized absences for a child in an annual summary log. It is anticipated that the CPA child placement staff will spend an average of 30 minutes to an hour documenting an unauthorized absence. Therefore, the cost will be approximately between $12.60 and $25.19 per unauthorized absence ($25.19 X 0.5 hours and $25.19 X 1 hour). Some CPAs may already be maintaining an annual summary log of unauthorized absences, so there would be no additional costs for those CPAs.

Fiscal impact relating to §749.594 for triggered reviews for unauthorized absences: Proposed new §749.594 requires the CPA child placement staff to participate in a triggered review for unauthorized absences when the child has incurred three unauthorized absences in a 60-day time frame. Licensing estimates that the CPA child placement staff will spend, on average, between one and two hours participating in a triggered review for unauthorized absences. Therefore, the cost will be approximately between $25.19 and $50.38 per triggered review ($25.19 X 1 hour and $25.19 X 2 hours).

Fiscal impact relating to §749.596 for overall agency evaluation for unauthorized absences: Proposed new §749.596 requires an agency to conduct an overall agency evaluation for unauthorized absences every six months. Licensing estimates that a CPA administrator and three child placement staff members will spend approximately 2 hours in a meeting discussing the overall agency evaluation, and the CPA administrator will spend an additional four to six hours completing the evaluation. Therefore, the cost will be approximately between $343.14 and $407.14 [($25.19 X 2 hours X 3 child placement staff members) + ($32 X 6 hours) or [($25.19 X 2 hours X 3 child placement staff members) + ($32 X 8 hours) per evaluation, or $686.28 and $814.28 annually.

HHSC determined that alternative methods to achieve the purpose of the proposed rules for small businesses and micro-businesses would not be consistent with ensuring the health and safety of children in foster care.

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.

PUBLIC BENEFIT AND COSTS

Jean Shaw, Associate Commissioner for Child Care Licensing, has determined that for each year of the first five years the rules are in effect, the public benefit will be an increase in safety of children in residential care by clarifying provider requirements, preventing future absences of children who regularly have unauthorized absences, and decreasing the overall number of unauthorized absences.

Greta Rymal 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 as previously explained under the section entitled Small Businesses, Micro-Businesses, and Rural Community Impact Analysis.

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 Gerry Williams at (512) 438-5559 in the Child Care Licensing Department of the HHSC Regulatory Services Division or by e-mail to Gerry.Williams@hhsc.state.tx.us.

Written comments on the proposal may be submitted to Gerry Williams, Rules Developer (19R020), Child Care Licensing, Health and Human Services Commission E-550, P.O. Box 149030, Austin, Texas 78714-9030, and electronic comments may be submitted to CCLrules@hhsc.state.tx.us.

To be considered, comments must be submitted no later than 31 calendar 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) e-mailed by 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 e-mailing comments, please indicate "Comments on Proposed Rule 19R020" in the subject line.

DIVISION 1. REPORTING SERIOUS INCIDENTS AND OTHER OCCURRENCES

26 TAC §749.501

STATUTORY AUTHORITY

The repeal 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.

The repeal affects Texas Government Code §531.0055 and Human Resources Code §42.042.

§749.501.What is a serious incident?

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 November 18, 2019.

TRD-201904316

Karen Ray

Chief Counsel

Health and Human Services Commission

Earliest possible date of adoption: December 29, 2019

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


26 TAC §§749.501, 749.503, 749.513

STATUTORY AUTHORITY

The amendments and new section 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.

The amendments and new section affect Texas Government Code §531.0055 and Human Resources Code §42.042.

§749.501.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 §749.503 of this title (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 time frame.

(3) Unauthorized absence--A child is absent from a foster home without permission from the foster parent, or other temporary caregiver, and cannot be located. This includes when an unauthorized person has removed the child from the foster home.

§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 time frames:

Figure: 26 TAC §749.503(a) (.pdf)

[Figure: 26 TAC §749.503(a)]

(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 title (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 title; 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) [(c)] 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) [(d)] 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 time frame:

Figure: 26 TAC §749.503(e) (.pdf)

[Figure: 26 TAC §749.503(d)]

§749.513.What additional documentation must I include with a written serious incident report?

You must include the following additional documentation with a written serious incident report, as applicable:

Figure: 26 TAC §749.513 (.pdf)

[Figure: 26 TAC §749.513]

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 November 18, 2019.

TRD-201904318

Karen Ray

Chief Counsel

Health and Human Services Commission

Earliest possible date of adoption: December 29, 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 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.

The new sections affect Texas Government Code §531.0055 and Human Resources Code §42.042.

§749.590.What additional requirements are there for unauthorized absences of children from a foster home?

(a) For each unauthorized absence of a child, you must:

(1) Document the unauthorized absence in an annual summary log, as required by §749.591 of this title (relating to What documentation must be included in an annual summary log for a child who has an unauthorized absence?); and

(2) Debrief the child, as required by §749.592 of this title (relating to What are the requirements for debriefing a child after an unauthorized absence?).

(b) If a child has three unauthorized absences within a 60-day timeframe, you must conduct a triggered review of the child's unauthorized absences that is consistent with the rules in this division; and

(c) You must conduct an overall agency evaluation for unauthorized absences every six months, as required by §749.596 of this title (relating to What is an overall agency evaluation for unauthorized absences?).

§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; and

(5) Whether law enforcement was contacted, including the name of any law enforcement agency that was contacted, 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 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.

§749.593.When must a triggered review of a child's unauthorized absences occur?

(a) A triggered review of a child's unauthorized absences must occur as soon as possible, but no later than 30 days after the child's third unauthorized absence within a 60-day timeframe.

(b) A regularly scheduled review of the child's service plan can serve as the triggered review of a child's unauthorized absences, if the regularly scheduled review:

(1) Meets the requirements in §749.595 of this title (relating to What must the triggered review of a child's unauthorized absences include?); and

(2) Takes place no later than 30 days after the child's third unauthorized absence within a 60-day timeframe.

§749.594.Who must participate in a triggered review of a child's unauthorized absences?

(a) The triggered review of a child's unauthorized absences must include the following participants:

(1) The child;

(2) The foster parent; and

(3) Child placement staff.

(b) You must notify the child's parent at least two weeks before the triggered review of a child's unauthorized absences, so the parent will have an opportunity to participate in the review.

§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 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 operation during that time period.

(b) The objectives of the evaluation are to:

(1) Develop and maintain an 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 agency; and

(2) Specific strategies to reduce the number of unauthorized absences in your agency.

(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 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 November 18, 2019.

TRD-201904319

Karen Ray

Chief Counsel

Health and Human Services Commission

Earliest possible date of adoption: December 29, 2019

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