TITLE 26. HEALTH AND HUMAN SERVICES

PART 1. HEALTH AND HUMAN SERVICES COMMISSION

CHAPTER 8. PEER ASSISTANCE PROGRAMS FOR IMPAIRED PROFESSIONALS

26 TAC §§8.101, 8.103, 8.105, 8.107, 8.109, 8.111, 8.113, 8.115, 8.117, 8.119, 8.121, 8.123, 8.125

The Executive Commissioner of the Texas Health and Human Services Commission (HHSC) proposes new Chapter 8, Peer Assistance Programs for Impaired Professionals, including new §§8.101, 8.103, 8.105, 8.107, 8.109, 8.111, 8.113, 8.115, 8.117, 8.119, 8.121, 8.123, and 8.125.

BACKGROUND AND PURPOSE

The purpose of the proposal is to move the Department of State Health Services (DSHS) rules in 25 TAC Chapter 451 to 26 TAC Chapter 8 as part of consolidating all HHSC rules in TAC Title 26. The proposed new rules are reorganized and updated, but do not make changes from the language currently in 25 TAC Chapter 451 that would result in new or increased requirements for a peer assistance program for impaired professionals or for any associated state licensing authority. The proposed repeal of 25 TAC Chapter 451, Peer Assistance, appears elsewhere in this issue of the Texas Register.

SECTION-BY-SECTION SUMMARY

Proposed new §8.101, Authority, references the enabling statute, Texas Health and Safety Code §467.001, as the authority for these rules.

Proposed new §8.103, Applicability, indicates that this chapter of rules applies to any peer assistance program organized and operated under authority of Texas Health and Safety Code, Chapter 467.

Proposed new §8.105, Definitions, defines certain words and terms used in the chapter.

Proposed new §8.107, Peer Assistance Program Certification and Approval, outlines the certification and approval requirements for a peer assistance program.

Proposed new §8.109, Organization, contains administrative requirements for a peer assistance program.

Proposed new §8.111, Staffing, outlines the staffing requirements for a peer assistance program.

Proposed new §8.113, Program Description, requires each peer assistance program to operate according to a written program description, including a list of minimum content for the program description.

Proposed new §8.115, Policies and Procedures, contains requirements for the policies and procedures of a peer assistance program, including how the policies and procedures are developed.

Proposed new §8.117, Reports, discusses making a report about a person who is or may be an impaired professional.

Proposed new §8.119, Referrals to Assessment and Treatment Resources, prohibits compensation for referrals and seeks to ensure an objective process for selecting assessment and treatment providers for impaired professionals.

Proposed new §8.121, Program Completion, discusses notifications regarding whether or not an impaired professional successfully completed a peer assistance program.

Proposed new §8.123, Confidentiality, discusses the confidential nature of information relating to participation in peer assistance programs and lists situations in which confidential information may be disclosed.

Proposed new §8.125, Provision of Services to Students, gives peer assistance programs the option to extend services to impaired students.

FISCAL NOTE

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

GOVERNMENT GROWTH IMPACT STATEMENT

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

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

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

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

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

(5) the proposed rules will create new rules in Texas Administrative Code, Title 26, which will replace rules being repealed contemporaneously from Title 25;

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

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

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

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

Trey Wood has also determined that there will be no adverse economic effect on small businesses, micro-businesses, or rural communities. The proposed rules do not impose any additional costs on small businesses, micro-businesses, or rural communities that are required to comply with the 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 do not impose a cost on regulated persons.

PUBLIC BENEFIT AND COSTS

Sonja Gaines, Deputy Executive Commissioner, has determined that for each year of the first five years the rules are in effect, the public benefit will be better information on peer assistance program requirements, as the rules will be updated and located under the correct state agency in the Texas Administrative Code.

Trey Wood has also determined that for the first five years the rules are in effect, there are no anticipated economic costs to persons who are required to comply with the proposed rules. The proposed new rules move, update, and reorganize existing program requirements being repealed in 25 TAC Chapter 451, and do not require providers to alter their current business practices.

TAKINGS IMPACT ASSESSMENT

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

PUBLIC COMMENT

Questions about the content of this proposal may be directed to Amy Chandler at (512) 487-3419.

Written comments on the proposal may be submitted to Rules Coordination Office, P.O. Box 13247, Mail Code 4102, Austin, Texas 78711-3247, or street address 4900 North Lamar Boulevard, Austin, Texas 78751; or emailed to HHSRulesCoordinationOffice@hhsc.state.tx.us.

To be considered, comments must be submitted no later than 31 days after the date of this issue of the Texas Register. Comments must be: (1) postmarked or shipped before the last day of the comment period; (2) hand-delivered before 5:00 p.m. on the last working day of the comment period; or (3) emailed before midnight on the last day of the comment period. If last day to submit comments falls on a holiday, comments must be postmarked, shipped, or emailed before midnight on the following business day to be accepted. When emailing comments, please indicate "Comments on Proposed Rule 19R046" in the subject line.

STATUTORY AUTHORITY

The new sections are authorized by Texas Health and Safety Code Chapter 467, which requires HHSC to adopt minimum criteria for peer assistance programs for impaired professionals.

The new sections implement Texas Health and Safety Code Chapter 467.

§8.101.Authority.

Authority is granted to the Texas Health and Human Services Commission (HHSC) under Texas Health and Safety Code §467.001 to establish minimum criteria for peer assistance programs.

§8.103.Applicability.

This chapter applies to any peer assistance program organized and operated under authority of Texas Health and Safety Code, Chapter 467. This chapter does not apply to peer assistance programs established for licensed physicians or pharmacists or for any other profession that is authorized by other law to establish a peer assistance program. The peer assistance program for pharmacists is required to establish and comply with rules that are at least as strict as those contained in this chapter.

§8.105.Definitions.

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

(1) Approved peer assistance program--A program designed to help an impaired professional which is:

(A) established or approved by a licensing or disciplinary authority;

(B) meets the criteria established by HHSC in this chapter; and

(C) meets any additional criteria established by the licensing or disciplinary authority.

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

(3) Impaired professional--An individual whose ability to perform professional services is impaired by a mental health or substance use condition.

(4) Impaired student--A student whose ability to perform the services of the profession for which the student is preparing for licensure would be, or would reasonably be expected to be, impaired by a mental health or substance use condition.

(5) Licensing or disciplinary authority--A state agency or board that licenses or has disciplinary authority over professionals.

(6) Mental health condition--A condition (excluding intellectual or developmental disability or a substance use condition) that substantially impairs an individual's:

(A) thought, perception of reality, emotional process, or judgment;

(B) behavior; or

(C) ability to participate in daily routines.

(7) Mental health professional--An individual licensed by the state as a:

(A) licensed chemical dependency counselor;

(B) licensed clinical social worker;

(C) licensed marriage and family therapist;

(D) licensed professional counselor;

(E) psychologist; or

(F) nurse with a master's degree and national certification in substance use or psychiatric nursing.

(8) Peer assistance program--Identifies, assists, and monitors individuals experiencing mental health or substance use conditions that are, or are likely to be, job-impairing, so that the individuals may return to safe practice. Peer assistance programs offer support and assistance and have a rehabilitative emphasis rather than a disciplinary emphasis.

(9) Professional--An individual who may incorporate under The Texas Professional Corporation Law as described by Section 1.008(m), Business Organizations Code, or who is licensed, registered, certified, or otherwise authorized by the state to practice as a licensed vocational nurse, social worker, chemical dependency counselor, occupational therapist, speech-language pathologist, audiologist, licensed dietitian, or dental or dental hygiene school faculty member.

(10) Professional association--A national or statewide association of professionals, including any committee of a professional association and any nonprofit organization controlled by or operated in support of a professional association.

(11) Staff--All persons responsible for implementing a peer assistance program, whether employed, under contract, paid, or volunteer.

(12) Student--An individual enrolled in an educational program or course of study leading to initial licensure as a professional as such program or course of study is defined by the appropriate licensing or disciplinary authority.

(13) Substance use condition--A recurrent use of alcohol or drugs that causes clinically and functionally significant impairment, such as health problems, disability, and failure to meet major responsibilities at work, school, or home.

§8.107.Peer Assistance Program Certification and Approval.

(a) A professional association or licensing or disciplinary authority may establish a peer assistance program to identify and assist impaired professionals in accordance with the minimum criteria established by HHSC in this chapter and any additional criteria established by the appropriate licensing or disciplinary authority.

(b) Peer assistance programs must be certified by HHSC under this chapter.

(1) A peer assistance program must submit all documentation required by HHSC to verify that the program meets the minimum standards described in this chapter.

(2) Once HHSC is satisfied that a peer assistance program meets minimum standards, the program receives a document confirming certification.

(3) A peer assistance program is recertified periodically as determined by HHSC.

(4) A peer assistance program must notify HHSC within 30 days of any change in status, including change of address or telephone number.

(c) A peer assistance program established by a professional association must submit evidence to the appropriate licensing or disciplinary authority showing that the association's program meets the minimum criteria established by HHSC in this chapter and any additional criteria established by that authority.

(1) If a licensing or disciplinary authority receives evidence showing that a peer assistance program established by a professional association meets the minimum criteria established by HHSC in this chapter and any additional criteria established by that authority, the authority must approve the program.

(2) A licensing or disciplinary authority may revoke its approval of a program established by a professional association if the authority determines that:

(A) the program does not comply with the criteria established by HHSC or by that authority; and

(B) the professional association does not bring the program into compliance within a reasonable time, as determined by that authority.

§8.109.Organization.

(a) A peer assistance program's governing body is legally responsible for the management, services, and operations of the program. No member of the governing body may have the potential for direct financial gain from these activities.

(b) A peer assistance program's governing body must designate or employ an administrator for the peer assistance program. The administrator is responsible for the day-to-day operations of the program.

(c) A peer assistance program must maintain adequate financial records according to generally accepted accounting principles. Financial records must include an annual budget and records of income and expenditures.

§8.111Staffing.

(a) A peer assistance program must maintain an adequate number of staff to effectively administer the program and provide the services identified in the program description.

(b) Each staff position must have a written job description that specifies:

(1) duties and responsibilities; and

(2) minimum qualifications, including the level of education, training, and related work experience required.

(c) An application or resume for each staff member must document education, training, and related work experience that meets or exceeds the minimum qualifications in that person's job description.

(d) The organization must provide adequate supervision for staff.

(e) All staff must receive training regarding program and participant confidentiality requirements. Staff who will coordinate intervention or participation or will consult with or monitor a participant must complete eight hours of training before working with program participants. At least five hours of the training must be conducted by a mental health professional and include:

(1) mental health and substance use conditions;

(2) appropriate treatment for mental health and substance use conditions; and

(3) intervention and advocacy skills, as applicable.

(f) The program must maintain documentation of required training.

(g) Each personnel file must be kept for at least two years after the individual stops working with the program.

§8.113.Program Description.

(a) A peer assistance program must have a written description of the program that includes:

(1) target population;

(2) the plan for ensuring services are available throughout the state;

(3) how the following areas are to be addressed:

(A) identification of and intervention with impaired professionals and, if served, impaired students;

(B) assistance with accessing treatment;

(C) monitoring and support of participants;

(D) intervention in crises, including relapses; and

(E) support during the reentry by participants to professional practice or academic role;

(4) the plan for program evaluation; and

(5) the methods used to promote and encourage use of the program.

(b) A peer assistance program must operate according to the program description required by subsection (a) of this section.

§8.115.Policies and Procedures.

(a) A peer assistance program must operate according to written policies and procedures designed to support the implementation of the program description.

(b) The policies and procedures for a peer assistance program must comply with:

(1) this chapter;

(2) any requirements of the licensing or disciplinary authority that established or approved the program; and

(3) all applicable state or federal laws or rules.

(c) There must be at least one professional in recovery from a substance use condition and one professional in recovery from a mental health condition involved in program and policy development. These individuals may be members of the governing board, staff, or members of an advisory committee for the program.

(d) The written policies and procedures must state philosophy and methods for program operation, including:

(1) the licensing or disciplinary authority's role in the process and the program's relationship to the authority;

(2) procedures for maintaining confidentiality;

(3) compliance with applicable state and federal legal authority and regulations;

(4) eligibility criteria for participants;

(5) the circumstances under which an individual will be accepted as a participant in the program;

(6) all formal agreements (including consents for disclosure) required of participants;

(7) a description of the following processes, including, where applicable, how they apply to self-referrals and participants:

(A) referral;

(B) assessment;

(C) intervention;

(D) drug testing;

(E) treatment;

(F) return to work;

(G) crisis and relapse;

(H) participant noncompliance with intervention, drug testing, or treatment;

(I) participant dismissal from the program;

(J) participant who moves out of state; and

(K) participant program completion;

(8) the program's role in the accessing of treatment by the participant;

(9) participant records and related documentation;

(10) program's relationship to reporting third parties;and

(11) the criteria to be used for selection of assessment and treatment referral resources.

(e) The policies and procedures must be current, and staff must have access to applicable information.

§8.117. Reports.

(a) A person who knows or suspects that a professional is impaired by a substance use or mental health condition may report the professional's name and any relevant information to an approved peer assistance program.

(b) A person who is required by law to report an impaired professional to a licensing or disciplinary authority satisfies that requirement if the person reports the professional to an approved peer assistance program.

(c) An approved peer assistance program may report in writing to the appropriate licensing or disciplinary authority the name of a professional who the program knows or suspects is impaired and any relevant information concerning that professional.

§8.119.Referrals to Assessment and Treatment Resources.

(a) Neither the peer assistance program nor any individual associated with it may accept compensation for referrals. Compensation includes:

(1) pay;

(2) anything of value; and

(3) any other form of benefit or consideration.

(b) If the peer assistance program has a relationship with a licensed treatment facility that involves ownership, operation, management, or control, then the program must comply with the requirements of Texas Health and Safety Code §164.007 and §164.008 regarding referrals for treatment.

(c) If the peer assistance program is not subject to Texas Health and Safety Code §164.007 and §164.008, the program must:

(1) implement an objective process for selecting assessment and treatment resources to be provided as referrals to participants; and

(2) maintain documentation including:

(A) the method for establishing selection criteria;

(B) the relevance of the criteria to the services to be provided;

(C) the process used to apply the criteria to potential resources; and

(D) the justification for the selection of those assessment and treatment resources chosen.

§8.121.Program Completion.

(a) An impaired professional who is referred to a peer assistance program must, as a condition of participation in the program, give consent to the program that authorizes the program to disclose the impaired professional's success or failure to complete the program to the appropriate licensing or disciplinary authority.

(b) A peer assistance program must notify the appropriate licensing or disciplinary authority if a person succeeds or fails to complete the program, as required by the appropriate licensing or disciplinary authority.

(c) A peer assistance program must notify a person who made a report under §8.117 of this chapter (relating to Reports) if the professional who was reported fails to participate in the program as required by the appropriate licensing or disciplinary authority.

§8.123.Confidentiality.

(a) Any information, report, or record that an approved peer assistance program or a licensing or disciplinary authority receives, gathers, or maintains under Chapter 467 of the Texas Health and Safety Code is confidential. Except as prescribed in Chapter 467 of the Texas Health and Safety Code, a person may not disclose that information, report, or record without written approval of the impaired professional or other interested person. An order entered by a licensing or disciplinary authority may be confidential only if the licensee subject to the order agrees to the order and there is no previous or pending action, complaint, or investigation concerning the licensee involving malpractice, injury, or harm to any member of the public.

(b) Information that is confidential under subsection (a) of this section may be disclosed:

(1) at a disciplinary hearing before a licensing or disciplinary authority in which the authority considers taking disciplinary action against an impaired professional whom the authority has referred to a peer assistance program under Texas Health and Safety Code §467.006(a) or (b);

(2) at an appeal from a disciplinary action or order imposed by a licensing or disciplinary authority;

(3) to qualified personnel for bona fide research or educational purposes only after information that would identify a person is removed;

(4) to health care personnel to whom an approved peer assistance program or a licensing or disciplinary authority has referred an impaired professional; or

(5) to other health care personnel to the extent necessary to meet a health care emergency.

§8.125.Provision of Services to Students.

(a) A peer assistance program may provide services to impaired students.

(b) A peer assistance program that elects to provide services to impaired students is not required to provide the same services to those students that it provides to impaired professionals.

(c) A peer assistance program that provides services to students must comply with any criteria for those services that are adopted by the appropriate licensing or disciplinary authority.

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 October 2, 2019.

TRD-201903578

Karen Ray

Chief Counsel

Health and Human Services Commission

Earliest possible date of adoption: November 17, 2019

For further information, please call: (512) 487-3419