25 TAC §§411.351 - 411.362
The Texas Department of Mental Health and Mental Retardation
(TDMHMR) proposes new §§411.351 - 411.362 of Chapter 411, Subchapter
H, concerning interstate transfer. Existing §§411.351 - 411.362
of Chapter 411, Subchapter H, concerning the same, which the new sections
would replace, are contemporaneously proposed for repeal in this issue of
the
Texas Register
.
The subchapter would describe the procedures for transferring persons with
mental retardation and mental illness between a TDMHMR facility and other
states. The procedures contained in the subchapter comply with state statute;
reflect current practice which as been determined to be an effective, efficient,
and compassionate manner of interstate transfer; and facilitate coordination
with other states that are parties to the Interstate Compact on Mental Health
as well as the five state that are not parties to the compact.
A key difference between the proposed new sections and the sections proposed
for repeal is that the prerequisite for transfer in the proposed new sections
allows the legally authorized representative of the person to be transferred
to be living in the state of proposed transfer, rather than to be a resident
of the state. The proposed new sections also state that voluntary admission
to a TDMHMR mental health and mental retardation facility is accomplished
in accordance with applicable rules.
Cindy Brown, Chief Financial Officer, has determined that for each year
of the first five years the proposed new rules are in effect, enforcing or
administering the rules does not have foreseeable significant implications
relating to cost or revenue of the state or local governments because the
proposed new rules are not significantly different from the rules proposed
for repeal.
Kenny Dudley, Director, State Mental Health Facilities, has determined
that, for each year of the first five years the proposed new rules are in
effect, the public benefit expected is the provision of clear and concise
information regarding the interstate transfer of persons with mental illness
and mental retardation. It is anticipated that there would be no additional
economic cost to persons required to comply with the proposed rules because
they do not impose additional requirements on such persons.
It is anticipated that the proposed new rules will not affect a local economy
because the rules do not significantly alter the requirements contained in
the rules proposed for repeal, which did not affect a local economy.
It is anticipated that the proposed new rules will not have an adverse
economic effect on small businesses or micro-businesses because the rules
do not significantly alter the requirements contained in the rules proposed
for repeal.
Written comments on the proposal may be sent to Linda Logan, Director,
Policy Development, Texas Department of Mental Health and Mental Retardation,
P.O. Box 12668, Austin, Texas 78711-2668, within 30 days of publication.
These sections are proposed under the Texas Health and Safety
Code, §532.015(a), which provides the Texas Mental Health and Mental
Retardation Board with broad rulemaking authority, and the Interstate Compact
on Mental Health, Texas Health and Safety Code, Chapter 612, which authorizes
the adoption of rules to carry out the compact more effectively.
These proposed sections would affect the Texas Health and Safety Code,
Chapter 612, §571.008, and §533.011.
§411.351.Purpose.
The purpose of this subchapter is to implement Texas laws authorizing
the transfer of persons with mental retardation and mental illness between
Texas and other states.
§411.352.Application.
This subchapter applies to the Texas Department of Mental Health and
Mental Retardation and all of its facilities and local authorities.
§411.353.Definitions.
The following words and terms, when used in this subchapter, have the
following meanings, unless the context clearly indicates otherwise:
(1)
Family member--The person's spouse, parent, sibling, adult
child, or any individual the person identifies as playing a significant role
in the person's life.
(2)
Informed consent--The knowing agreement of the person or
the person's legally authorized representative (LAR) to a proposed transfer,
given under the person's or LAR's ability to exercise free power of choice
without undue inducement or any element of force, fraud, deceit, duress, or
other form of constraint or coercion.
(3)
Interstate compact coordinator (ICC)--The employee at TDMHMR's
Central Office responsible for coordinating interstate transfers.
(4)
Legally authorized representative (LAR)--An individual
authorized by law to act on behalf of a person with regard to a matter described
in this subchapter, and who may include a parent. guardian, or managing conservator
of a child or adolescent, or a guardian of a person who is an adult.
(5)
Local authority--An entity designated by the TDMHMR commissioner
in accordance with the Texas Health and Safety Code, §533.035(a).
(6)
Person--The individual for whom interstate transfer is
requested.
(7)
State mental health facility--A state hospital or a state
center with an inpatient component that is operated by TDMHMR.
(8)
State mental retardation facility--A state school or a
state center with a mental retardation residential component that is operated
by TDMHMR.
(9)
TDMHMR--The Texas Department of Mental Health and Mental
Retardation.
(10)
TDMHMR facility--A state mental health facility or a state
mental retardation facility.
(11)
Transfer--The importation or deportation of a person under
the provisions of the Texas Mental Health Code, Texas Health and Safety Code,
Title 7, §571.008; the Texas Mental Health and Mental Retardation Act,
Texas Health and Safety Code, Title 7, §533.011 and §533.014(a)(3);
or the Interstate Compact on Mental Health, Texas Health and Safety Code,
Title 7, Chapter 612.
§411.354.Prerequisite for Transfer.
(a)
To transfer a person to another state from a TDMHMR facility:
(1)
the person must be a resident or former resident of the
receiving state;
(2)
the person's LAR must be living in the receiving state;
or
(3)
the person must have a family member, who plays or who
will play a significant role in the person's life, living in the receiving
state.
(b)
To transfer a person from an institution in another state
to a TDMHMR facility:
(1)
the person must be a resident of Texas;
(2)
the person's LAR must be living in Texas; or
(3)
the person must have a family member, who plays or who
will play a significant role in the person's life, living in Texas.
§411.355.Legal Basis for Institutionalization.
(a)
Persons with mental illness or mental retardation who are
involuntarily committed by another state and who are transferred to Texas
may be detained for a period not to exceed 96 hours. Detention in excess of
96 hours may only be in accordance with:
(1)
a voluntary admission to a Texas facility;
(2)
a commitment order of a Texas court; or
(3)
an order of protective custody.
(b)
An appropriate court in the county of a state mental health
facility or local authority's location is authorized to conduct commitment
proceedings of persons transferred to the state mental health facility or
local authority from another state.
(c)
Court commitments of persons with mental retardation to
a state mental retardation facility are accomplished in accordance with the
Texas Health and Safety Code, §593.041 and §593.052.
(d)
Voluntary admission of a person with mental retardation
to a state mental retardation facility is accomplished in accordance with
Chapter 412, Subchapter F of this title (relating to Continuity of Services--State
Mental Retardation Facilities).
(e)
Voluntary admission of a person with mental illness to
a state mental health facility is accomplished in accordance with Chapter
402, Subchapter A of this title (relating to Admissions, Transfers, Absences,
and Discharges--Mental Health Facilities).
§411.356.Coordinating Requests for Interstate Transfer.
All requests for interstate transfer are coordinated by the Interstate
Compact Coordinator (ICC), Texas Department of Mental Health and Mental Retardation,
P.O. Box 12668, Austin, Texas 78711-2668. The ICC does not discriminate against
any person or individual on the grounds of race, color, national origin, religion,
sex, age, disability, or political affiliation.
§411.357.Requests for Persons with Mental Retardation To Be Transferred from Texas.
(a)
Requests for interstate transfer may be initiated by the
person, a family member of the person, or the person's LAR. Regardless of
who initiates the request for transfer, the preferences of the adult person
who has not been adjudicated incompetent prevail.
(b)
In response to a transfer request, the TDMHMR facility
in which the person resides is responsible for obtaining informed consent
to the transfer from the person or the person's LAR and completing the "Consent
to Interstate Transfer and to Release Confidential Information" form and the
"Request for Interstate Transfer" form, which are referenced as Exhibits A
and B, respectively in §411.361 of this title (relating to Exhibits).
(c)
The TDMHMR facility forwards to the ICC:
(1)
documentation of the person's prerequisite for transfer
to the receiving state, in accordance with §411.354(a) of this title
(relating to Prerequisite for Transfer);
(2)
documentation of staff's discussion with the person regarding
the proposed transfer and/or if appropriate documentation of staff's contact
with the person's family, friends, or other available sources in ascertaining
whether the transfer is in the person's best interest;
(3)
the completed "Consent to Interstate Transfer and to Release
Confidential Information" form;
(4)
the completed "Request for Interstate Transfer" form;
(5)
a copy of the person's diagnosis of mental retardation;
(6)
a copy of the person's comprehensive medical history, including
any medical evaluations, current physician's orders, and list of current medications;
(7)
a summary of the person's social history, including a copy
of any psychological evaluations;
(8)
documentation that committing court has been notified of
the proposed transfer, if applicable;
(9)
copies of the person's current individual habilitation
plan and annual planning conference documents;
(10)
guardianship or other legal documentation pertaining to
the individual requesting transfer; and
(11)
a brief cover letter signed by the TDMHMR facility chief
executive officer or designee stating the circumstances or reasons for requesting
the transfer.
(d)
While the request for transfer is pending, the TDMHMR facility
is responsible for informing the ICC of any changes in the person's status,
the request, or of anything that would affect the transfer request.
(e)
Upon receipt of the elements described in subsection (c)
of this section, the ICC contacts the receiving state and makes a reasonable
effort to obtain authorization for the transfer.
(f)
If the receiving state decides to accept the person for
immediate transfer, then the TDMHMR facility shall:
(1)
make all travel arrangements, choosing the most comfortable
and expeditious mode of travel that is acceptable to the person being transferred
and/or the LAR;
(2)
be responsible for all transfer expenses;
(3)
ensure that arrangements are made for an escort or escorts
to accompany and assist the person in reaching the final destination;
(4)
ensure that the following items accompany the person upon
transfer to the receiving state:
(A)
a copy of the person's birth certificate or appropriate
substitute;
(B)
all legal documents;
(C)
the person's Social Security card;
(D)
a copy of the person's immunization record;
(E)
a copy of the person's weight and height record;
(F)
a copy of the person's seizure record, if appropriate;
(G)
a copy of the person's treatment and diet record;
(H)
Medicaid, Medicare, or third-party insurance cards, if
available;
(I)
a copy of the person's current nursing care plan;
(J)
a summary of the person's medical history, including all
major surgeries, and significant acute illnesses and injuries requiring hospitalization
or long recovery period;
(K)
a summary of the person's medication history, including
start/stop dates and dose ranges, effectiveness of all long-term medications,
and antibiotic use including dates, effectiveness, sensitivities, and allergies;
(L)
a summary of the person's dental history, including all
oral surgeries, extractions, restorations, appliances, and types of anesthesia
required for dental work;
(M)
copies of all the person's laboratory reports of exams
conducted within the past 30 days and any additional significant reports made
within the past year (including, X-ray, EEG, and EKG);
(N)
all personal belongings;
(O)
transfer program summary; and
(P)
the previously agreed-upon supply of all prescribed medication,
not to exceed a 14-day supply; and
(5)
inform the ICC in writing within 14 days after the transfer
is complete.
(g)
The ICC ensures that all authorized parties are informed
of the progress made on the transfer request as allowed by the signed "Consent
to Interstate Transfer and to Release Confidential Information" form.
§411.358.Requests for Persons with Mental Illness To Be Transferred from Texas.
(a)
Requests for interstate transfer may be initiated by the
person, a family member of the person, or the person's LAR. Regardless of
who initiates the request for transfer, the preferences of the adult person
who has not been adjudicated incompetent prevails.
(b)
In response to a transfer request, the TDMHMR facility
in which the person resides is responsible for obtaining informed consent
to the transfer from the person or the person's LAR and completing the "Consent
to Interstate Transfer and to Release Confidential Information" form and the
"Request for Interstate Transfer" form, which are referenced as Exhibits A
and B, respectively in §411.361 of this title (relating to Exhibits).
(c)
The TDMHMR facility forwards to the ICC:
(1)
documentation of the person's prerequisite for transfer
to the receiving state, in accordance with §411.354(a) of this title
(relating to Prerequisite for Transfer);
(2)
documentation of staff's discussion with the person regarding
the proposed transfer and documentation of staff's contact with the person's
family, friends, or other available sources in ascertaining whether the transfer
would be in the person's best interest;
(3)
the completed "Consent to Interstate Transfer and to Release
Confidential Information" form;
(4)
the completed "Request for Interstate Transfer" form;
(5)
a copy of the person's diagnosis of mental illness;
(6)
a copy of the person's comprehensive medical history, including
any medical evaluations, current physician's orders, and list of current medications;
(7)
a summary of the person's social history and history of
mental illness, including a copy of any psychiatric or psychological evaluations;
(8)
documentation of approval to transfer from the committing
court, as required by the Texas Health and Safety Code, §612.007(b);
(9)
guardianship or other legal documentation pertaining to
the individual requesting transfer; and
(10)
a brief cover letter signed by the TDMHMR facility chief
executive officer or designee stating the circumstances or reasons for requesting
the transfer.
(d)
While the request for transfer is pending, the TDMHMR facility
is responsible for informing the ICC of any changes in the person's status,
the request, or of anything that would affect the transfer request.
(e)
Upon receipt of the elements described in subsection (c)
of this section, the ICC contacts the receiving state and makes a reasonable
effort to obtain authorization for the transfer.
(f)
If the receiving state decides to accept the person for
immediate transfer, the TDMHMR facility shall:
(1)
make all travel arrangements, choosing the most comfortable
and expeditious mode of travel acceptable to the person being transferred;
(2)
be responsible for all transfer expenses;
(3)
ensure arrangements are made for an escort or escorts to
accompany and assist the person in reaching the final destination;
(4)
ensure that the following items accompany the person upon
transfer to the receiving state:
(A)
all legal and other documents, as appropriate;
(B)
copies of all the person's laboratory reports of exams
conducted within the past 30 days and any additional significant reports made
within the past year;
(C)
all personal belongings; and
(D)
the previously agreed-upon supply of all prescribed medication,
not to exceed a 14-day supply; and
(5)
inform the ICC in writing within 14 days after the transfer
is complete.
(g)
The ICC ensures that all authorized parties are informed
of the progress made on the transfer request as allowed by the signed "Consent
to Interstate Transfer and to Release Confidential Information" form.
§411.359.Requests for Persons with Mental Retardation to Transfer to Texas.
(a)
A letter of request for transfer of a person to a TDMHMR
facility, which is initiated by the person, a family member of the person,
or the person's LAR, is sent by the requesting state's Interstate Compact
Coordinator or designee to the ICC, Texas Department of Mental Health and
Mental Retardation, P.O. Box 12668, Austin, Texas 78711-2668. The letter of
request must be accompanied by:
(1)
documentation of the person's prerequisite for transfer
to Texas, in accordance with §411.354(b) of this title (relating to Prerequisite
for Transfer);
(2)
a consent to the release of records to TDMHMR, signed by
the person or the person's LAR;
(3)
the completed "Request for Interstate Transfer" form, referenced
as Exhibit B in §411.361 of this title (relating to Exhibits);
(4)
a copy of the person's immunization record;
(5)
a copy of the person's Social Security card;
(6)
a copy of the person's birth certificate or appropriate
substitute;
(7)
a copy of the person's diagnosis of mental retardation;
(8)
a copy of the person's comprehensive medical history, including
any medical evaluations, current physician's orders, and list of current medications;
(9)
a summary of the person's social history, including a copy
of any psychological evaluations;
(10)
documentation that committing court has been notified
of the proposed transfer, if applicable;
(11)
copies of the person's current individual habilitation
plan and annual planning conference documents;
(12)
guardianship or other legal documentation pertaining to
the individual requesting transfer; and
(13)
a brief cover letter signed by the institution's chief
executive officer or designee stating the circumstances or reasons for requesting
the transfer.
(b)
Upon receipt of the letter of request, the ICC reviews
the documents and consults with the appropriate local authority, who consults
with the appropriate TDMHMR facility, to determine whether the person is eligible
for admission to the facility.
(c)
The ICC refers disputes relating to the benefit derived
from a proposed transfer and clinical issues relating to eligibility for admission
to a TDMHMR facility to the director of state mental retardation facilities
at TDMHMR's Central Office for resolution.
(d)
If the person is determined eligible for admission to a
TDMHMR facility, then the person is referred to the appropriate local authority
who arranges for the person's name to be placed on the register of the appropriate
facility. The ICC notifies the sending state of TDMHMR's action regarding
the request for transfer and supplies necessary transfer information.
(e)
If the person is determined ineligible for admission to
a TDMHMR facility, then the ICC notifies the requesting state of such ineligibility.
The ICC also notifies the requesting state of the person's right to provide
additional information to be considered in redetermining eligibility if the
person believes that incomplete or inaccurate information was used to determine
ineligibility.
(f)
The ICC ensures that all authorized parties are informed
of the progress made on the transfer request as allowed by the signed consent
to release confidential information document or in accordance with law.
§411.360.Requests for Persons with Mental Illness to Transfer to Texas.
(a)
A letter of request for transfer of a person to a TDMHMR
facility, which is initiated by the person, a family member of the person,
or the person's LAR, is sent by the requesting state's Interstate Compact
Coordinator or designee to the ICC, Texas Department of Mental Health and
Mental Retardation, P.O. Box 12668, Austin, Texas 78711-2668. The letter of
request must be accompanied by:
(1)
documentation of the person's prerequisite for transfer
to Texas, in accordance with §411.354(b) of this title (relating to Prerequisite
for Transfer);
(2)
a consent to the release of records to TDMHMR, signed by
the person or the person's LAR;
(3)
the completed "Request for Interstate Transfer" form, referenced
as Exhibit B in §411.361 of this title (relating to Exhibits);
(4)
a copy of the person's immunization record;
(5)
a copy of the person's Social Security card;
(6)
a copy of the person's birth certificate or appropriate
substitute;
(7)
a copy of the person's diagnosis of mental illness;
(8)
a copy of the person's comprehensive medical history, including
any medical evaluations, current physician's orders, and list of current medications;
(9)
a summary of the person's social history and history of
mental illness, including a copy of any psychiatric or psychological evaluations;
(10)
documentation of approval to transfer from the committing
court, if required;
(11)
guardianship or other legal documentation pertaining to
the individual requesting transfer; and
(12)
a brief cover letter signed by the institution's chief
executive officer or designee stating the circumstances or reasons for requesting
the transfer.
(b)
Upon receipt of the letter of request, the ICC reviews
the documents and consults with the appropriate local authority, who consults
with the appropriate TDMHMR facility, to determine whether the person is eligible
for admission to the facility.
(c)
The ICC refers disputes relating to the benefit derived
from a proposed transfer and clinical issues relating to eligibility for admission
to a TDMHMR facility to the director of state mental health facilities at
TDMHMR's Central Office for resolution.
(d)
If the person is determined eligible for admission to a
TDMHMR facility, then the person is referred to the appropriate local authority
who arranges for the person's name to be placed on the register of the appropriate
facility. The ICC notifies the sending state of TDMHMR's action regarding
the request for transfer and supplies necessary transfer information.
(e)
If the person is determined ineligible for admission to
a TDMHMR facility, then the ICC notifies the requesting state of such ineligibility.
The ICC also notifies the requesting state of the person's right to provide
additional information to be considered in redetermining eligibility if the
person believes that incomplete or inaccurate information was used to determine
ineligibility.
(f)
The ICC ensures that all authorized parties are informed
of the progress made on the transfer request as allowed by the signed consent
to release confidential information document or in accordance with law.
§411.361.Exhibits.
The following exhibits referenced in this subchapter are available
from the Texas Department of Mental Health and Mental Retardation, Office
of Policy Development, P.O. Box 12668, Austin, Texas 78711-2668.
(1)
Exhibit A--"Consent to Interstate Transfer and to Release
Confidential Information"; and
(2)
Exhibit B--"Request for Interstate Transfer."
§411.362.References.
Reference is made to the following statutes and rules:
(1)
Texas Health and Safety Code, §§533.011, 533.014,
533.035, 571.008, 593.041, 593.052, and Chapter 612;
(2)
Chapter 412, Subchapter F of this title (relating to Continuity
of Services--State Mental Retardation Facilities); and
(3)
Chapter 402, Subchapter A of this title (relating to Admissions,
Transfers, Absences, and Discharges--Mental Health Facilities).
This agency hereby certifies that the proposal has been
reviewed by legal counsel and found to be within the agency's legal authority
to adopt.
Filed with the Office of
the Secretary of State, on July 19, 2001.
TRD-200104177
Andrew Hardin
Chair, Texas MHMR Board
Texas Department of Mental Health and Mental Retardation
Earliest possible date of adoption: September 2, 2001
For further information, please call: (512) 206-5216