Texas Register
. Language was added to §412.56(a)
to clarify that a local authority is not prohibited from amending a community
services contract to add a new community service if the contract was procured
though open enrollment.
Written comment on the proposal was received from the Betty Hardwick Center,
Abilene; The Texas Council of Community MHMR Centers, Austin; the Parent Association
for the Retarded of Texas (PART), Austin; and the parent of a state school
resident, Garland.
Regarding contracting with former employees in §412.54(d), one commenter
asked if the provision meant that a local authority employee who "participated"
in negotiating a contract with a private provider in "fiscal year 1" could
not resign, become employed by the private provider, and then negotiate and
contract with the local authority on behalf of the private provider for the
same type of contract in "fiscal year 2." The commenter also asked if the
two contracts would be considered two different "particular matters." TDMHMR
responds that since every contracting situation is unique, whether or not
the scenario presented by the commenter is permitted would depend on the facts
in each situation. TDMHMR must comply with a similar requirement and determines
the legality of each situation on an individual basis. TDMHMR notes that the
provision, which originates in state statute (Texas Health and Safety Code, §534.007),
currently applies to a former officer or employee of a community MHMR center.
TDMHMR is extending the requirement to local authorities by this rule.
Regarding proper ownership of goods in §412.54(f), one commenter expressed
concern about how the provision would impact a local authority and asked if
a good could be amortized if the local authority did not actually own it.
Regarding (f)(2), the commenter asked how proper ownership is determined.
The commenter also asked if the provision implied that TDMHMR would require
a local authority to transfer its good or goods to another entity upon TDMHMR's
designation of that entity as the new local authority. TDMHMR responds that
there would be no need to amortize because the term of a performance contract
is 12 months. A good purchased by the local authority pursuant to its performance
contract would be paid in full within that 12 months, thereby eliminating
the need to amortize, regardless of who owned the good. Regarding the determination
of proper ownership, TDMHMR responds that the decision would be made on a
case-by-case basis by considering the monetary value of the property and its
future usefulness. TDMHMR notes that language relating to proper ownership
of goods proposed in §412.54(f) has been deleted because proper ownership
of goods specified in the performance contract should be established in the
performance contract, and therefore, is governed by rules relating to contracts
management for TDMHMR facilities and Central Office. Regarding transfer of
a local authority good(s) to a newly designated local authority, TDMHMR responds
that the decision would be made on a case-by-case basis during discussions
with the government officials in the local service area who appoint the board
of the outgoing local authority. The transfer of local authority functions
and responsibilities from one entity to another would require a transition
plan that, among other things, addressed the possible transfer of specific
goods (tangible personal property and intellectual property related to the
performance of authority functions) from the outgoing local authority to the
incoming local authority.
Regarding relevant factors used in determining best value in §412.55(b)(5),
a commenter requested that "maintenance agreement" be defined. TDMHMR responds
that the term generally means an agreement to maintain property, such as routine
cleaning and repair of office equipment or vehicles. TDMHMR declines to add
a definition to the rule because it may limit the term's meaning as intended
by statute (Texas Health and Safety Code, §533.016(c)(5)).
Regarding "the character, responsibility, integrity, reputation, and experience
of the respondent" as a relevant factor used in determining best value in §412.55(b)(15),
one commenter asked how such criteria are to be applied. TDMHMR responds that
the local authority is responsible for determining which factors are relevant
to the procurement and how the relevant factors are to be applied to each
procurement. TDMHMR notes that local authorities, when determining lowest
and best bid in accordance with the Texas Health and Safety Code, §534.055(f),
are currently required to consider "the character, responsibility, integrity,
reputation, and experience of the bidder."
Regarding contracting with a former employee who is employed by a state
agency in §412.54(d)(2), two commenters asked why a former officer or
employee of a state agency under (d)(2) is exempt. The commenters stated that
a former officer or employee of a state agency should not be exempt and requested
that (d)(2) be deleted and that (d)(1) be explained more fully. TDMHMR responds
that the provision, and exemption, is in state statute (Texas Health and Safety
Code, §534.007) as applicable to a former officer or employee of a community
MHMR center and that TDMHMR is extending the requirement to local authorities
by rule. The exception contained in (d)(1) seems to indicate that a former
employee whose annual salary was below $42,216 would not be in a position
to influence the contracting process in such as way as to create an unfair
advantage for his/her current employer. TDMHMR notes that, since state agencies
and other local authorities do not generally compete with private organizations
for contracts with a local authority, it would be highly unlikely that the
state agency or local authority who employs a former local authority employee
would have an unfair advantage in obtaining a contract with the local authority.
Regarding obtaining best value in §412.55(a)(2), two commenters suggested
that language be added requiring the local authority to acquire community
services by a procurement method that provides the best value to the individual
receiving the services and his/her legally authorized representative (LAR)
in addition to the local authority. The commenters stated that best value
must always include, as the top priority, the people who will be receiving
the service and their LARs. The commenters also requested similar language
be added to §412.55(b)(4) as it relates to meeting the needs of the individual
and LAR. TDMHMR responds by adding a definition of "best value" which achieves,
among other objectives, meeting the needs of the individuals served by the
programs administered by the local authority.
Regarding unrestricted access to contractors' facilities, records, and
data for monitoring purposes in §412.57(b)(18), two commenters suggested
that language be added to include access to the individuals being served under
the contract. The commenters stated that monitors needed "access to individuals
to monitor more than just 'paperwork' concerning their individual programs
and services." The commenters also stated that monitors should have access
to individuals
without reasonable notice
.
TDMHMR responds that the provision mirrors the language in the Texas Health
and Safety Code, §534.061(c). The absence of language specific to access
to individuals as a contract provision does not mean that TDMHMR or the local
authority would not have access to individuals served by the contractor. Texas
Health and Safety Code, §534.061(a)-(b), addresses the monitoring of
community services provided by local authority contractors. The local authority
could not comply with those statutory monitoring requirements or the monitoring
requirements contained in §412.62 of this subchapter if it did not have
access to individuals. TDMHMR notes that the contract provisions listed in §412.57
are not all inclusive. A local authority is responsible for including in its
community services contracts provisions that enable the local authority to
comply with all applicable federal and state laws and regulations, including
this subchapter. Regarding access to individuals
without reasonable notice
, TDMHMR responds that such a provision could
result in violations of individuals' privacy.
Regarding monitoring contracts in §412.62(a), two commenters recommended
adding language to require monitoring for the protection of individuals' rights;
protection from abuse, neglect, and exploitation; and meeting each individual's
Plan of Care services. The commenters suggested adding the requirement to
assess the risk of each contract and assign a monitoring level as required
in TDMHMR proposed rules governing contracts management for TDMHMR facilities
and Central Office. One of the commenters recommended that all consumer services
and programs be monitored at a Level III. Additionally, the commenters requested
that the reference in §412.62(a)(5) be changed to §412.57(b)(1)-(20).
TDMHMR responds that the language in §412.62(a), which requires the local
authority to monitor a contractor for compliance with the community services
contract, addresses the commenters' concerns. As required in §412.57(16),
each community services contract must specify the relevant TDMHMR rules with
which the contractor must comply. And TDMHMR rules governing protection of
individuals' rights and protection from abuse, neglect, and exploitation are
relevant to every community service. Regarding community services contracts
being assessed for risk and assigned Level III monitoring, TDMHMR responds
that the purpose of assessing a contract's risk is to determine the appropriate
level of monitoring and that such provisions were included in its proposed
rules governing contracts management for TDMHMR facilities and Central Office
(Chapter 417, Subchapter B) in order to comply with the 1999 Appropriations
Act, Article II, Section 2, Rider 13, which states that no funds appropriated
to a health and human service agency may be utilized for contracts for the
purchase of program-related client services unless such contracts include
clearly defined goals, outputs, and measurable outcomes which directly relate
to program objectives, include clearly defined sanctions or penalties for
non compliance with contract terms and conditions, and specify the accounting,
reporting, and auditing requirements applicable to funds received under the
contract. While local authorities may develop policies and procedures that
address risk assessment and monitoring levels, TDMHMR declines to extend such
prescriptive requirements to local authorities. Regarding the commenters'
suggestion to change the reference in (a)(5) to §412.57(b)(1)-(20), TDMHMR
declines to change the reference because it properly references the provision
in §412.57(b)(13) for a community services contract to have clearly defined
performance expectations. All of the other paragraphs in §412.57(b) do
not pertain to performance expectations.
Regarding the definition of "goods" in §412.53(9), one commenter suggested
deleting the phrase "specified in the performance contract." The commenter
stated that, because §412.55(a)(1) requires goods to be acquired by any
procurement method in the Uniform Grant and Contracts Management Standards
(UGMS), restricting the definition of goods to the tangible personal property
specified in the performance contract is misleading because UGMS applies to
all goods a local authority purchases as a "subrecipient" or "subgrantee,"
and not just goods specified in the performance contract. TDMHMR responds
that, although it intended to include the broad requirement that local authorities
comply with UGMS when purchasing all goods (rather than just those goods specified
in the performance contract) in its draft rules governing local authorities,
TDMHMR has determined that broadening the scope of this subchapter to include
all goods purchased by a local authority using TDMHMR funds and required local
match funds accomplishes the same purpose. Therefore, TDMHMR has modified
the definition of "goods" as suggested by the commenter.
Regarding the proper ownership of goods that are intellectual property
in §412.54(f)(1), one commenter suggested adding the phrase "specified
in the performance contract" so that the paragraph pertaining to the purchase
of goods that are intellectual property is clear that only such goods are
the exclusive property of TDMHMR. The commenter stated that without the added
phrase the rule could be interpreted to mean that any intellectual property
purchased by a local authority is the exclusive property of TDMHMR, which
would clearly be a misinterpretation or misapplication of the proposed rules.
TDMHMR responds by modifying the language as suggested by the commenter.
One commenter suggested adding a definition of "intellectual property."
The commenter expressed willingness to assist department staff in developing
a definition that was acceptable to both TDMHMR and the commenter if no such
definition could be found in an authoritative source. TDMHMR responds by adding
a definition of intellectual property.
The new rules are adopted under the Texas Health and Safety Code, §532.015,
which provides the Texas MHMR Board (board) with broad rulemaking authority,
and §534.052(a), which requires the board to adopt rules that it considers
necessary and appropriate to ensure the adequate provision of community services
through a local authority; §533.016, which authorizes the expenditure
of public money to acquire goods and services by a procurement method that
provides best value; §533.017, which authorizes TDMHMR to allow local
authorities to participate in TDMHMR's purchasing contracts or group purchasing
program; §534.061, which requires TDMHMR to develop mechanisms for periodically
monitoring the services of a provider who contracts with a local authority
to provide community services; and the 1999 Appropriations Act, Article II,
Section 2, Rider 13, which states that no funds appropriated to a health and
human service agency may be utilized for contracts for the purchase of program-related
client services unless such contracts include clearly defined goals, outputs,
and measurable outcomes which directly relate to program objectives.
§412.52.Application.
This subchapter applies to all contracts for goods and services awarded
by a local authority.
§412.53.Definitions.
The following words and terms, when used in this subchapter, have the
following meanings, unless the context clearly indicates otherwise:
(1)
Application--Documents prepared by a respondent in response
to a request for applications.
(2)
Best value--The optimum combination of economy and quality
that is the result of fair, efficient, and practical procurement decision-making
and which achieves the following objectives:
(A)
promote fairness and competition for local authority contracts;
(B)
support the delivery of services and benefits that best
meets the needs of clients of programs administered by the local authority;
(C)
promote timely, high quality, and responsive performance
by contractors; and
(D)
encourage and reward the continuing participation of quality
contractors.
(3)
Business entity--A sole proprietorship, partnership, firm,
corporation, holding company, joint-stock company, receivership, trust, or
any other entity recognized by law.
(4)
Consumer--A person in the priority population or otherwise
designated in the performance contract as eligible for community services.
(5)
Contract--A written agreement, including a purchase order,
between a local authority and a business entity that obligates the entity
to provide goods or services in exchange for money or other valuable consideration.
(6)
Contract management--Initiating, procuring, awarding, monitoring,
and enforcing a contract.
(7)
Contract term--The period of time during which a contract
is in effect, identified by a starting and ending date.
(8)
Contractor--A business entity that has a contract for goods
or services with a local authority.
(9)
Goods--Tangible personal property and intellectual property.
(10)
Intellectual property--Any intangible asset that consists
of human knowledge and ideas (e.g., software).
(11)
Local authority--An entity designated by the TDMHMR commissioner
in accordance with the Texas Health and Safety Code, §533.035(a).
(12)
Local service area--A geographic area composed of one
or more Texas counties delimiting the population which may receive community
services from a local authority.
(13)
Participated--To have taken action as an officer or employee
through decision, approval, disapproval, recommendation, giving advice, investigation,
or similar action.
(14)
Particular matter--A specific investigation, application,
request for a ruling or determination, proceeding related to the development
of policy, contract, claim, charge, accusation, arrest, or judicial or other
proceeding.
(15)
Performance contract--The contract between TDMHMR and
a local authority in which TDMHMR agrees to pay the local authority a specified
sum and in which the local authority agrees to provide local match, for, at
a minimum, ensuring and/or monitoring the provision of specified mental health
and mental retardation services in a local service area.
(16)
Priority population--Those groups of persons with mental
illness and mental retardation identified in TDMHMR's current strategic plan
as being most in need of mental health and mental retardation services.
(17)
Proposal--Documents prepared by a respondent in response
to a request for proposals.
(18)
Respondent--A business entity that submits an oral, written,
or electronic response to a solicitation. The term is intended to include
"applicant," "offeror," "proposer," and other similar terminology to describe
a business entity that responds to a solicitation.
(19)
Response--An oral, written, or electronic "offer," "proposal,"
"quote," "application," or other applicable expression of interest to a solicitation.
(20)
Services--
(A)
Community services--Mental health and mental retardation
services required to be available in each local service area pursuant to the
Texas Health and Safety Code, §534.053(a), for which TDMHMR contracts
through the performance contract as well as all other services specified in
the performance contract.
(B)
Non-community services--All services other than community
services.
(21)
Solicitation--A notification of the local authority's
intent to purchase community services (e.g., request for proposals and request
for applications).
(22)
TDMHMR--The Texas Department of Mental Health and Mental
Retardation.
§412.54.Accountability.
(a)
All purchases of goods and services must be made pursuant
to a contract.
(b)
Conflicts of interests and standards of conduct for local
authority employees and officers.
(1)
Conflicts of interest. Local authority employees and officers
may not have a conflict of interest in contracts management. An employee or
officer has a conflict of interest when the employee, officer, a partner of
the employee or officer, or a person related within the second degree of consanguinity
or affinity to the employee or officer, has or intends to have:
(A)
employment with a respondent or contractor;
(B)
paid consultation with a respondent or contractor;
(C)
membership on a respondent's or contractor's board of directors;
(D)
ownership of 10% or more of the voting stock of shares
of a respondent or contractor;
(E)
ownership of 10% or more or $5,000 or more of the fair
market value of a respondent or contractor; or
(F)
income from a respondent or contractor in excess of 10%
of the employee's, officer's, or related person's gross income for the previous
year.
(2)
Standards of conduct. The local authority must develop
and enforce standards of conduct governing its employees' and officers' who
participate in contracts management, which prohibits such employees and officers
from:
(A)
accepting or soliciting any gift, favor, service, or benefit
from a business entity, respondent, or contractor that might reasonably tend
to influence the employee or officer in the discharge of official duties relating
to contract management, or that the employee or officer knows or should know
is being offered with the intent to influence the employee's or officer's
official duties; or
(B)
intentionally or knowingly soliciting, accepting, or agreeing
to accept any benefit for having exercised official powers or for having performed
official duties in favor of another business entity, respondent, or contractor.
(c)
Conflicts of interests and standards of conduct for a respondent
and its officers and employees.
(1)
Conflict of interest. A respondent and its officers and
employees responsible for development of a response or performance of a contract
for which the respondent is submitting a response may not be related within
the second degree of consanguinity or affinity to a local authority employee
or officer participating in the contract management for the contract for which
the respondent is submitting a response.
(2)
Standards of conduct.
(A)
A respondent and its officers and employees may not attempt
to induce any business entity to submit or not to submit a response.
(B)
A respondent and its officers and employees must arrive
at its response independently and without consultation, communication, or
agreement for the purposes of restricting competition.
(C)
A respondent and its officers and employees may not have
a relationship with any person, at the time of submitting the response or
during the contract term, that may interfere with fair competition.
(D)
A respondent and its officers and employees may not participate
in the development of specific criteria for award of the contract, nor participate
in the selection of the response to be awarded the contract.
(d)
The local authority may not contract with a former officer
or employee of the local authority if the contract relates to a particular
matter (as defined) in which the former officer or employee participated (as
defined) during the period of employment, either through personal involvement
or because the case or proceeding was a matter within the officer's or employee's
official responsibility, unless:
(1)
the former employee was compensated on the last day of
service or employment below the amount prescribed by the General Appropriations
Act for salary group 17, Schedule A, or salary group 9, Schedule B, of the
position classification salary schedule; or
(2)
the former officer or employee is employed by a state agency
or another local authority.
(e)
The local authority must ensure that its contractors comply
with all contract provisions regardless of whether a contractor subcontracts
some or all of the contract.
(f)
A local authority may make advance payments to a contractor
provided the payments meet a public purpose, ensure adequate consideration,
and sufficient controls are in place to ensure accomplishment of the public
purpose. With the exception of contracts paid on a capitated basis, at the
end of each contract term the contractor must return to the local authority
any state or federal funds received from or through TDMHMR which have not
been encumbered.
(g)
The local authority is prohibited from contracting with
a business entity that is currently:
(1)
held in abeyance or barred from the award of a federal
or state contract; or
(2)
is not in good standing for state tax, pursuant to the
Texas Business Corporation Act, Texas Civil Statutes, Article 2.45.
(h)
The local authority must ensure each contractor is provided
information relating to the local authority's policies and procedures that
are relevant to the contractor.
(i)
The local authority shall ensure quality community services
are provided to consumers, including during the transition from one contractor
to another.
(j)
When purchasing goods and services, the local authority
shall comply with the Uniform Grant and Contracts Management Standards (UGMS)
promulgated by the Governor's Office of Budget and Planning (pursuant to the
Texas Government Code, Chapter 783, and 1 TAC, Part 1, Chapter 5, Subchapter
A, Division 4), except to the extent that any provision in §412.55(a)(2)
of this title (relating to Contract Procurement) conflicts with UGMS, Part
III (State Uniform Administrative Requirements for Grants and Cooperative
Agreements), Subpart C (Post-Award Requirements; Changes Property, and Subawards),
Section __.36(d) (Procurement), then §412.55(a)(2) of this title (relating
to Contract Procurement) shall control. In UGMS:
(1)
the terms "recipient" and "grantee" apply to TDMHMR;
(2)
the terms "subrecipient" and "subgrantee" apply to the
local authority; and
(3)
the terms "vendor" and "subcontractor" apply to a contractor
(as defined in this subchapter), unless the contractor operates as a "subgrantee"
as defined under UGMS, Part III (State Uniform Administrative Requirements
for Grants and Cooperative Agreements), Subpart A (General), Section __.3
(Definitions).
§412.55.Procurement.
(a)
Procurement method. The local authority must develop and
enforce procurement procedures that comply with this subchapter.
(1)
Goods and non-community services. The local authority must
acquire goods and non-community services by any procurement method described
in the Uniform Grant and Contracts Management Standards (UGMS), Section __.36(d),
that provides the best value to the local authority.
(2)
Community services. The local authority must acquire community
services by a procurement method described in this subchapter that provides
the best value to the local authority. All community services must be procured
competitively in accordance with §412.58 of this title (relating to Competitive
Procurement of Community Services Contracts) unless the local authority determines
that the community service(s):
(A)
can be procured non-competitively in accordance with §412.59
of this title (relating to Non-competitive Procurement of Community Services
Contracts); or
(B)
should be procured through open enrollment in accordance
with §412.60 of this title (relating to Open Enrollment).
(b)
Relevant factors. The local authority must consider all
relevant factors in determining best value, which may include:
(1)
any installation cost;
(2)
the delivery terms;
(3)
the quality and reliability of the respondent's goods or
services;
(4)
the extent to which the goods or services meet the local
authority's needs;
(5)
indicators of probable respondent performance under the
contract, such as past offeror performance, the respondent's financial resources
and ability to perform, the respondent's experience and responsibility, and
the respondent's ability to provide reliable maintenance agreements;
(6)
the impact on the ability of the local authority to comply
with laws and rules relating to historically underutilized businesses or relating
to the procurement of goods and services from persons with disabilities;
(7)
the total long term cost to the local authority of acquiring
the respondent's goods or services;
(8)
the cost of any employee training associated with the acquisition;
(9)
the effect of an acquisition on the local authority's productivity;
(10)
the acquisition price;
(11)
whether the respondent can perform the contract or provide
the service(s) within the contract term, without delay or interference;
(12)
the respondent's history of compliance with the laws relating
to its business operations and the affected service(s) and whether it is currently
in compliance;
(13)
whether the respondent's financial resources are sufficient
to perform the contract and to provide the service(s);
(14)
whether necessary or desirable support and ancillary services
are available to the respondent;
(15)
the character, responsibility, integrity, reputation,
and experience of the respondent;
(16)
the quality of the facilities and equipment available
to or proposed by the respondent;
(17)
the ability of the respondent to provide continuity of
services;
(18)
the ability of the respondent to meet all applicable written
policies, principles, and regulations; and
(19)
any other factor relevant to determining the best value
for the local authority in the context of a particular acquisition.
(c)
Award. All contracts must be awarded based on best value,
as determined by considering all relevant factors.
(d)
Renewal of community services contracts. The local authority
may renew a community services contract only if the contract meets best value
as determined by considering all relevant factors.
§412.56.Community Services Contracting Requirements.
(a)
The local authority is prohibited from amending a community
services contract:
(1)
to increase the contract amount by more than 25%; or
(2)
to add a new community service unless the contract was
procured through open enrollment.
(b)
Upon written request by an unsuccessful respondent, the
local authority must provide information concerning why the respondent's response
was not selected for award.
(c)
The local authority must develop written procedures that
provide respondents an opportunity to protest a contract award.
(1)
The procedures must allow respondents to protest matters
relating to:
(A)
alleged conflict of interests;
(B)
alleged failure of the local authority to comply with statute
or rule; and
(C)
alleged failure of the local authority to comply with its
procurement procedures.
(2)
The procedures must describe the local authority's process
for reviewing and resolving protests.
(d)
The local authority must maintain for five years or until
the end of any litigation concerning the contract the following contract management
documentation:
(1)
justification for non-competitive procurement as permitted
in §412.59(a) of this title (relating to Non-competitive Procurement
of Community Services Contracts), if applicable;
(2)
the solicitation and any modifications or revisions made
to the solicitation;
(3)
all responses to the solicitation and any modifications
or revisions made to such responses;
(4)
the evaluations of all responses and evidence that the
local authority considered all relevant factors;
(5)
written correspondence between the local authority and
respondents prior to contract award;
(6)
optional or required credentials (certifications, licenses,
accreditations), if any;
(7)
written protests, if any, and their disposition;
(8)
the executed contract;
(9)
written correspondence between the local authority and
the contractor concerning the contractor's performance; and
(10)
copies of any audits performed or required by the local
authority.
§412.57.Provisions for Community Services Contracts.
(a)
The local authority must ensure that all its community
services contracts are consistent with the local authority's performance contract
and with the model contracts designed by TDMHMR as required by the Texas Health
and Safety Code, §534.055(c).
(b)
The local authority must include in all of its community
services contracts that are funded by TDMHMR provisions stating:
(1)
the contract term;
(2)
the community service(s) to be purchased;
(3)
the identification of all parties;
(4)
the total allowable payment or, if the community service
is procured through open enrollment or is on a capitated basis, the rate of
payment;
(5)
the method of payment;
(6)
that the contractor must comply with all applicable federal
and state laws, rules, and regulations, including:
(A)
Title VI of the Civil Rights Act of 1964;
(B)
Section 504 of the Rehabilitation Act of 1973;
(C)
the Americans with Disabilities Act of 1990 (ADA); and
(D)
the Age Discrimination in Employment Act of 1967;
(7)
that if, as a result of a change to a TDMHMR rule or state
or federal law, the contractual obligations of the contractor are materially
changed or a significant financial burden is placed on the contractor, then
the parties may renegotiate in good faith to amend the contract;
(8)
that no consumer will be excluded from participation in,
denied the benefits of, or unlawfully discriminated against, in any program
or activity funded by the contract on the grounds of race, color, ethnicity,
national origin, religion, sex, age, disability, or political affiliation
in accordance with applicable laws;
(9)
that all documents pertinent to the contract, including
consumer records, will be retained by the contractor for a period of five
years;
(10)
that all consumer-identifying information will be maintained
by the contractor as confidential in accordance with applicable law and Chapter
414, Subchapter A of this title (relating to Client-Identifying Information);
(11)
that the contractor, its licensed staff, and other appropriate
staff (such as QMHP-CS) will be credentialed before services are delivered
to consumers by such contractor and staff;
(12)
a dispute resolution process;
(13)
the clearly defined performance expectations which directly
relate to the community service's objectives, including goals, outputs, and
measurable outcomes, and that the contractor must provide services in accordance
with such expectations;
(14)
that any allegation of abuse, neglect, or exploitation
of a consumer under the contract will be reported in accordance with applicable
law, TDMHMR rules, and Texas Department of Protective and Regulatory Services
rules;
(15)
that AIDS/HIV workplace guidelines, similar to those adopted
by TDMHMR and AIDS/HIV confidentiality guidelines and consistent with state
and federal law, will be adopted and implemented by the contractor;
(16)
that the contractor will comply with the relevant TDMHMR
rules, certifications, accreditations, and licenses, that are specified in
the contract;
(17)
that services will be provided in accordance with consumers'
treatment plans;
(18)
that pursuant to Texas Health and Safety Code, §534.061,
TDMHMR, the local authority, and their designees, including independent financial
auditors, shall have, with reasonable notice, unrestricted access to all facilities,
records, data, and other information under the control of the contractor as
necessary to enable the local authority to audit, monitor, and review all
financial and programmatic activities and services associated with the contract;
(19)
any sanctions and remedies the local authority may take
in response to the contractor's failure to comply with the contract provisions;
and
(20)
that the contractor will immediately notify the local
authority of any change, or potential change, in its status that could affect
its inclusion in the provider network.
(c)
The local authority must include in all of its community
services contracts for residential services that are funded by TDMHMR provisions
stating:
(1)
that the contractor shall provide evidence of criminal
history record information on the contractor's applicants, employees, and
volunteers, pursuant to the Texas Health and Safety Code, §533.007 and
Chapter 250; the Texas Government Code, §411.115; and Chapter 414, Subchapter
K of this title (relating to Criminal History Clearances); and
(2)
that if an applicant, employee, or volunteer of the contractor
has a criminal history relevant to his or her employment as described in Chapter
414, Subchapter K of this title (relating to Criminal History Clearances),
then the contractor will take appropriate action with respect to the applicant,
employee, or volunteer, including terminating or removing the employee or
volunteer from direct contact with consumers served by the contractor.
(d)
Community services contracts that require the contractor
to assume responsibility for the funds of a consumer must contain provisions
requiring the contractor to have and abide by a written policy, which is subject
to approval by the local authority, for protecting and accounting for such
funds in accordance with generally accepted accounting principles.
§412.62.Monitoring and Enforcing Community Services Contracts.
(a)
Monitoring. The local authority must maintain a contracts
management system that ensures each community services contractor performs
in accordance with the provisions of the contract. The local authority shall
monitor each community services contractor's compliance with the contract
and evaluate the contractor's provision of services, including:
(1)
competency of the contractor to provide care;
(2)
consumers' access to services;
(3)
safety of the environment in which services are provided;
(4)
continuity of care;
(5)
compliance with the performance expectations (referenced
in §412.57(b)(13) of this title (relating to Provisions for Community
Services Contracts));
(6)
satisfaction of consumers and family members with services
provided; and
(7)
utilization of resources.
(b)
Enforcing. The local authority shall enforce each community
services contract. The local authority shall develop policies and procedures
regarding contract enforcement that address the use of at least the following
enforcement actions:
(1)
training;
(2)
technical assistance for contractors;
(3)
a plan of correction; and
(4)
sanctions, which may include:
(A)
withholding or recouping funds;
(B)
imposing financial penalties;
(C)
requiring service delivery at no additional cost to the
local authority;
(D)
suspending participation in the provider network;
(E)
contract amendment; and
(F)
contract termination.
§412.63.References.
The following laws and rules are referenced in this subchapter:
(1)
Texas Health and Safety Code, Chapter 250, §533.007, §533.017, §533.035, §534.052. §534.055, §534.061, §534.065,
and §534.066;
(2)
Tax Code, Chapter 171;
(3)
Texas Civil Statutes, Article 2.45;
(4)
Texas Government Code, Chapter 783, and §411.115;
(5)
Title VI of the Civil Rights Act of 1964;
(6)
Section 504 of the Rehabilitation Act of 1973;
(7)
the Americans with Disabilities Act of 1990 (ADA);
(8)
the Age Discrimination in Employment Act of 1967;
(9)
1 TAC, Part 1, Chapter 5, Subchapter A, Division 4;
(10)
Chapter 414, Subchapter A of this title (relating to Client-Identifying
Information); and
(11)
Chapter 414, Subchapter K of this title (relating to Criminal
History Clearances).
This agency hereby certifies that the adoption has been
reviewed by legal counsel and found to be a valid exercise of the agency's
legal authority.
Filed with the Office of
the Secretary of State on April 2, 2001.
TRD-200101899
Andrew Hardin
Chairman, Texas MHMR Board
Texas Department of Mental Health and Mental Retardation
Effective date: April 22, 2001
Proposal publication date: December 22, 2000
For further information, please call: (512) 206-5216