Part 1. DEPARTMENT OF STATE HEALTH SERVICES
Chapter 140. HEALTH PROFESSIONS REGULATION
Subchapter C. SANITARIANS
The Executive Commissioner of the Health and Human Services Commission, on behalf of the Department of State Health Services (department), adopts new §§140.101 - 140.119, concerning the registration of sanitarians without changes to the proposed text as published in the March 30, 2007, issue of the Texas Register (32 TexReg 1828) and, therefore, the sections will not be republished.
BACKGROUND AND PURPOSE
The new rules are necessary to consolidate existing Professional Licensing and Certification Unit program rules in 25 Texas Administrative Code (TAC) Chapter 140, Health Professions Regulation. The rules also constitute the advisory committee review required by 25 TAC §265.131(e) which will be located in §140.119. The new rules transfer and update existing language, and do not impose any new requirements or fees on applicants or licensees. The new rules also clarify that applicants may pass the examination required for registration either as a Texas candidate or as a part of the National Environmental Health Association (NEHA) Registered Environmental Health Specialist/Registered Sanitarian certification process.
Government Code, §2001.039, requires that each state agency review and consider for readoption each rule adopted by that agency pursuant to the Government Code, Chapter 2001 (Administrative Procedure Act). Sections 265.131, 265.141 - 265.149, and 265.151 - 265.159 have been reviewed and the department has determined that reasons for adopting the sections continue to exist because rules on this subject are needed; however, the department repealed the sections and adopted the rules in 25 TAC Chapter 140, Health Professions Regulation.
SECTION-BY-SECTION SUMMARY
New §140.101 sets forth purpose and scope of the rules. New §140.102 includes definitions for terms used within the rules. New §140.103 lists the fees required for application, registration, upgrade, renewal, and issuance of a duplicate certificate. New §140.104 describes application procedures. New §140.105 lists qualification for registration as a sanitarian or a sanitarian in training, including types of acceptable experience. New §140.106 lists the types of college courses considered acceptable or not acceptable to meet the requirement for initial registration. New §140.107 sets forth information concerning the administration, content, grading, and other procedures for examination for registration. The new rules clarify that applicants may pass the examination required for registration either as a Texas candidate or as a part of the National Environmental Health Association (NEHA) Registered Environmental Health Specialist/Registered Sanitarian certification process. New §140.108 describes the procedures and criteria for approval or disapproval of an application by the department. New §140.109 provides timelines for the processing of initial and renewal applications, and for refunds to be issued if the timelines are exceeded without sufficient cause. New §140.110 covers procedures for the issuance of a certificate of registration, including duplicates and name changes. New §140.111 sets forth information concerning registration renewal and late renewal, including renewal procedures for a registration on active military duty. New §140.112 covers exemption from renewal and continuing education requirements for retired registered sanitarians. New §140.113 sets forth continuing education requirements. New §140.114 covers exemptions from the requirement for registration. New §140.115 sets out the guidelines and criteria on the eligibility of persons with criminal backgrounds to obtain registration. New §140.116 lists the grounds for denial, suspension or revocation of a registration. New §140.117 details standards related to advertising by a registrant. New §140.118 sets out violations and prohibited actions, procedures concerning complaints, and actions the department may take against a person when violations have occurred. New §140.119 covers the membership and operations of the advisory committee, and establishes the next review date as September 1, 2011.
COMMENTS
The department, on behalf of the commission, did not receive any comments regarding the proposed rules during the comment period.
LEGAL CERTIFICATION
The Department of State Health Services Deputy General Counsel, Lisa Hernandez, certifies that the rules, as adopted, have been reviewed by legal counsel and found to be a valid exercise of the agencies' legal authority.
STATUTORY AUTHORITY
The new rules are authorized by Occupations Code, §1953.051, which authorizes the adoption of rules regarding sanitarians; and Government Code, §531.0055, and Health and Safety Code, §1001.075, which authorize the Executive Commissioner of the Health and Human Services Commission to adopt rules and policies necessary for the operation and provision of health and human services by the department and for the administration of Health and Safety Code, Chapter 1001.
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 June 15, 2007.
TRD-200702481
Lisa Hernandez
Deputy General Counsel
Department of State Health Services
Effective date: July 5, 2007
Proposal publication date: March 30, 2007
For further information, please call: (512) 458-7111 x6972
The Executive Commissioner of the Health and Human Services Commission, on behalf of the Department of State Health Services (department), adopts the repeal of §§265.131, 265.141 - 265.149 and 265.151 - 265.159, concerning the registration of sanitarians without changes to the proposed text as published in the March 30, 2007, issue of the Texas Register (32 TexReg 1840) and will not be republished.
BACKGROUND AND PURPOSE
The repeals are necessary to consolidate existing Professional Licensing and Certification Unit program rules in 25 Texas Administrative Code (TAC), Chapter 140, Health Professions Regulation. The rules also constitute the advisory committee review required by 25 TAC, §265.131(e) which will be located in §140.119. The new rules transfer and update existing language, and do not impose any new requirements or fees on applicants or licensees. The new rules also clarify that applicants may pass the examination required for registration either as a Texas candidate or as a part of the National Environmental Health Association (NEHA) Registered Environmental Health Specialist/Registered Sanitarian certification process.
Government Code, §2001.039, requires that each state agency review and consider for readoption each rule adopted by that agency pursuant to the Government Code, Chapter 2001 (Administrative Procedure Act). Sections 265.131, 265.141 - 265.149, and 265.151 - 265.159 have been reviewed and the department has determined that reasons for adopting the sections continue to exist because rules on this subject are needed; however, the department repealed the sections and adopted the rules in 25 TAC, Chapter 140, Health Professions Regulation.
SECTION-BY-SECTION SUMMARY
The repeal of §§265.131, 265.141 - 265.149, and 265.151 - 265.159 is necessary in order to combine the Professional Licensing and Certification Unit rules in one chapter, 25 TAC, Chapter 140, Health Professions Regulation.
COMMENTS
The department, on behalf of the commission, did not receive any comments regarding the proposed rules during the comment period.
LEGAL CERTIFICATION
The Department of State Health Services Deputy General Counsel, Lisa Hernandez, certifies that the rules, as adopted, have been reviewed by legal counsel and found to be a valid exercise of the agencies' legal authority.
Subchapter J. ADVISORY COMMITTEE
STATUTORY AUTHORITY
The repeal is authorized by Occupations Code, §1953.051, which authorizes the adoption of rules regarding sanitarians; and Government Code, §531.0055, and Health and Safety Code, §1001.075, which authorize the Executive Commissioner of the Health and Human Services Commission to adopt rules and policies necessary for the operation and provision of health and human services by the department and for the administration of Health and Safety Code, Chapter 1001.
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 June 15, 2007.
TRD-200702473
Lisa Hernandez
Deputy General Counsel
Department of State Health Services
Effective date: July 5, 2007
Proposal publication date: March 30, 2007
For further information, please call: (512) 458-7111 x6972
25 TAC §§265.141 - 265.149, 265.151 - 265.159
STATUTORY AUTHORITY
The repeals are authorized by Occupations Code, §1953.051, which authorizes the adoption of rules regarding sanitarians; and Government Code, §531.0055, and Health and Safety Code, §1001.075, which authorize the Executive Commissioner of the Health and Human Services Commission to adopt rules and policies necessary for the operation and provision of health and human services by the department and for the administration of Health and Safety Code, Chapter 1001.
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 June 15, 2007.
TRD-200702474
Lisa Hernandez
Deputy General Counsel
Department of State Health Services
Effective date: July 5, 2007
Proposal publication date: March 30, 2007
For further information, please call: (512) 458-7111 x6972
Subchapter P. PROVIDER NETWORK DEVELOPMENT
25 TAC §§412.751 - 412.754, 412.756, 412.758, 412.760, 412.762, 412.764, 412.766
The Executive Commissioner of the Health and Human Services Commission, on behalf of the Department of State Health Services (DSHS), adopts new §§412.751 - 412.754, 412.756, 412.758, 412.760, 412.762, 412.764, and 412.766, concerning local mental health authorities (LMHAs) and the development of a network of service providers within each LMHA's local service area. The new sections are adopted without changes to the text as published in the March 16, 2007, issue of the Texas Register (32 TexReg 1458) and will not be republished. The new rules establish the requirements of an LMHA in assembling and maintaining a network of service providers and set forth the conditions under which an LMHA may serve as a provider of services.
BACKGROUND AND PURPOSE
A negotiated rulemaking process was used to develop the rules, in accordance with the requirements of the Texas Government Code, Chapter 2008, concerning Negotiated Rulemaking. DSHS appointed a negotiated rulemaking committee, which first met on October 10, 2006, and continued to meet over the course of the next several months, totaling more than 100 hours of discussion and negotiations presided over by facilitators appointed by DSHS. On January 10, 2007, the negotiated rulemaking committee submitted a final report to DSHS, which includes the text of the rules. This report is public information and can be found on the DSHS website at http://www.dshs.state.tx.us/mhcommunity/provider.shtm. The negotiated rulemaking committee also submitted additional recommendations regarding implementation of the rules, and these recommendations can also be found on the website referenced above.
Section 533.035 of the Texas Health and Safety Code articulates a clear preference for a system of service delivery in which consumers have choice from among multiple service providers and in which the LMHA's role is to provide management and oversight. The extent to which this goal can be achieved in any given service area and how quickly it can be reached will depend on the circumstances, needs, and preferences of the local communities served by each LMHA.
Section 533.035(c) of the Texas Health and Safety Code charges LMHAs with responsibility for ensuring that mental health services are provided in their local service areas and, further, requires LMHAs to consider public input, ultimate cost-benefit, and client-care issues to ensure consumer choice and the best use of public money in assembling a network of service providers. This language clearly recognizes that decisions regarding the structure of service delivery networks must balance a complex and diverse range of considerations and interests. These include the needs and preferences of the local community, prudent stewardship of public dollars, the need to achieve the best possible client outcomes, the right of consumers to exercise control and make decisions regarding their health, and the responsibility to achieve the greatest return on public investment in mental health services.
Given the diversity of LMHAs' local service areas and their constituent communities, it is impossible to create a single template defining the procedures and timelines for implementing the statutory provisions that would comply with these overarching principles. Instead, the rules establish a uniform process for planning and implementation that provides a framework within which each LMHA must work with stakeholders and the local communities it serves in assembling a network of providers that provides the most appropriate and available treatment alternatives to individuals in need of mental health services.
This framework incorporates checks and balances to ensure that LMHA decisions reflect an appropriate consideration of the diverse and often competing interests and needs of stakeholders at both the state and local level. First, the process is public and transparent. LMHAs are required to make public their local network development plans and procurement documents prior to implementation. Second, LMHAs must solicit and respond to stakeholder comments at key points in the process: in the early phases of the planning process; prior to submitting a plan to DSHS for approval; and before initiating either a request for proposals or open enrollment, the two methods of procurement an LMHA is likely to use extensively in assembling or expanding its provider network. Finally, DSHS is given responsibility for reviewing and approving each LMHA's local network development plan, including the LMHA's rationale and supporting documentation, response to any public input, previous efforts, and progress toward assembling a network of external providers; DSHS may require revisions prior to approval of an LMHA's local network development plan.
The approach laid out in this subchapter accommodates the circumstances and needs of local communities across the state and anticipates considerable diversity in the plans and activities undertaken by various LMHAs. The rules recognize that the unique characteristics of the local communities served by each LMHA will result in a wide variance among the LMHAs in terms of the extent and rate to which they are able to assemble or expand their provider networks to include external providers and the rate at which they are able to make the transition away from being providers of services. For example, an LMHA in a local service area comprised strictly of rural and frontier counties may find few, if any, external providers willing to locate in such a sparsely populated region. With an insufficient supply of external providers to meet local demand, the LMHA might continue to serve as the primary provider in that area for an extended period with its external provider network comprised solely of a few individual practitioners. In contrast, an LMHA located in an urban area with a large number of experienced external providers might find it realistic to implement a plan designed to transition to a largely external provider network within just a few years. Another example is an LMHA's determination that it is necessary to be a provider of certain services in order to ensure that contracted providers are able to comply with performance standards and other contract requirements over an extended period of time, before completely divesting itself of the provider role.
DSHS expects that each LMHA's local network development plan will incorporate strategies to ensure continuous consumer access to services while the LMHA maintains a steadily decreasing share of service provision responsibilities during the transition period. In developing its local network development plan, the LMHA, while complying with the requirements of this subchapter and with input from stakeholders and DSHS, will be allowed to determine the rate at which this transition will occur.
While the rules provide considerable flexibility to address local needs, they also lay out clear criteria for determining when an LMHA is authorized to provide services. These criteria, together with other provisions in this subchapter, integrate the language defining an LMHA as a provider of last resort with the broader considerations articulated in Texas Health and Safety Code §533.035(c) and provide structure for translating those considerations into decisions regarding the assembly of a provider network.
In addition to requiring LMHAs to develop local network development plans that establish the extent and rate at which external providers will be utilized, the rules describe procurement practices specific to an LMHA's development of external provider networks. These provisions do not negate the application or effect of 25 TAC Chapter 412, Subchapter B, relating to Contracts Management for Local Authorities. Those rules will be reviewed by DSHS to determine whether they should be amended or repealed, but while they are in effect, the requirements of this subchapter will prevail if there is a conflict between those rules and this subchapter regarding an LMHA's responsibilities in contracting with providers of mental health services.
SECTION-BY-SECTION SUMMARY
§412.751. Purpose.
Section 412.751 states that the purpose of the rules is to establish the process for an LMHA to assemble and maintain a network of service providers, as required by the Texas Health and Safety Code, §533.035(b) - (f).
§412.752. Application.
Section 412.752 indicates that the rules would apply to LMHAs and their use of funds disbursed to them by DSHS pursuant to the Texas Health and Safety Code, §533.035(b). Therefore, the rules would not apply to an LMHA's use of funds other than "department federal and department state funds" disbursed to an LMHA by DSHS by contract or other allocation method. Because DSHS currently allocates federal and state funds to LMHAs through the DSHS performance contract, the rules would apply to funds received by the LMHAs through the DSHS performance contract, including, for example, federal Mental Health Block Grant funds and state general revenue funds. The rules would not apply to an LMHA's use of funds received through local contributions from a participating local agency pursuant to the Texas Health and Safety Code §534.019, local match funds required by the Texas Health and Safety Code, §534.066, other contributions made to an LMHA by private or non-local funding sources, or funding from another state agency, such as the Department of Rehabilitative Services or the Department of Aging and Disability Services.
§412.753. Definitions.
Section 412.753 defines certain words and terms used in the new subchapter.
The term, "external provider," includes all providers other than an LMHA or its direct employees. This definition is at variance with the definition of external providers utilized in the Cost Accounting Methodology (CAM) that LMHAs are required to use in reporting their costs to DSHS. The CAM definition classifies some contract employees as internal providers based on application of criteria regarding the extent to which the LMHA controls the contracted employee's work. After review, DSHS may revise the current CAM definitions to eliminate this discrepancy.
The term, "qualified provider," is defined as (1) an individual practitioner with the minimum qualifications required by the DSHS performance contract and an LMHA's approved local network development plan, or (2) an organization that demonstrates the ability to provide services in accordance with the requirements of the DSHS performance contract. Use of this term is consistent with the requirements of the Texas Health and Safety Code, §533.035(e), under which an LMHA may only serve as a provider of services if the LMHA demonstrates to DSHS that (1) it has made every reasonable attempt to solicit the development of an available and appropriate provider base that is sufficient to meet the needs of consumers in its service area, and (2) there is not a willing provider of the relevant services in the authority's service area or in the county where the provision of services is needed.
An LMHA is not required by the statute to accept any provider that is willing to provide services; it must select providers that are available and appropriate to provide the relevant services, as more specifically addressed in the requirements of Resiliency and Disease Management (RDM), an array of evidence-based disease management practices adopted by DSHS. The DSHS performance contract currently requires each LMHA to implement the requirements of RDM. The RDM Utilization Management Guidelines establish minimum qualification for individual practitioners who are providers of mental health services. In addition, RDM establishes various requirements for providers that are organizations. These include application of a uniform assessment tool to determine the necessary level of care for the client; compliance with Clinical Guidelines that establish service packages for both children and adults that ensure the provision of evidence-based services and guide decisions on eligibility and appropriate discharge from a service package; management of limited resources through established utilization management processes; compliance with the requirements of the DSHS performance contract; compliance with established quality management and data management processes; and maximization of available funding strategies.
Providers who are individual practitioners must meet not only the minimum qualifications established by the RDM Utilization Management Guidelines, but also any additional qualifications required by an LMHA's local network development plan, as provided in this subchapter. For example, bilingual capabilities may be an essential requirement for some staff providing services in areas with large Spanish-speaking populations.
The definition of "service capacity" refers to the number of adults or children/adolescents served, or to be served, for each RDM service package. Service capacity represents consumer distribution among various service packages at a given point in time, based on historical information and projected needs. This definition recognizes that service capacity is not a static number that can be determined in advance; rather, service capacity among service packages will fluctuate based on the clinical needs of consumers. While service capacity must be estimated for planning and procurement purposes, the service system must remain flexible so that it can accommodate the clinical needs of individual consumers who present for services and respond as their needs change over time.
The definition of "stakeholders" encompasses all individuals and organizations who may have an interest in or who may be impacted by the implementation and consequences of these rules and is intended to exclude no one. The specific stakeholder groups named in the definition are those with a clear interest in public mental health services and the assembly of a provider network to which the LMHA should direct its outreach efforts during the network development planning process.
§412.754. Establishment of a Provider Network.
Section 412.754, relating to Establishment of a Provider Network, references the general requirements of the Texas Health and Safety Code, §533.035(c) for an LMHA to assemble a network of service providers with consideration of public input, ultimate cost-benefit, and client care issues to ensure consumer choice and the best use of public money. The procedures and criteria found in subsequent sections of this subchapter describe how those considerations shall be applied in developing a provider network and determining the LMHA's role as a provider of services.
Public input is specifically required at three points in each two-year network development planning and implementation period. First, LMHAs are required to ensure community involvement and effective participation of stakeholders in the development of the local network development plan. Second, LMHAs are required to seek and respond to public comments regarding the draft plan before submitting their proposed plans to DSHS for approval. Finally, LMHAs are required to provide a period for public comment regarding draft procurement instruments before using them to procure services.
Client care issues are addressed through the requirement that LMHAs and their subcontractors adhere to standards of care established by DSHS, especially those defined in Chapter 412, Subchapter G, of this title, relating to Mental Health Community Services Standards, the RDM system, and through the examination of a potential contractor's past performance.
Consumer choice is addressed through the criteria used to determine an LMHA's status as a service provider, which define a minimum level of consumer choice.
The terms, "ultimate cost-benefit" and "best use of public money," relate to decisions regarding the allocation of public dollars used to fund mental health services, which are provided by and/or through LMHAs (LMHAs may, under certain circumstances, provide services themselves and/or purchase services from external providers). Key decisions in determining how services are provided include the extent and rate at which external providers will provide services and whether or not an LMHA will be a provider of services. Decisions regarding ultimate cost-benefit and best use of public money therefore encompass comparisons between an LMHA and one or more external providers, as well as comparisons among external providers. Ultimate cost-benefit and best use of public money are closely related to "best value," a term commonly associated with procurement activities. Within the context of this subchapter, best value is a specific term applied to procurement decisions made by an LMHA in which the LMHA selects from among competing external providers.
Considerations in determining ultimate cost-benefit and best use of public money parallel those factors used to determine cost value detailed in §412.762(b), which may be broadly summarized as follows: (1) the extent to which the service conforms to established quality standards; (2) the extent to which the service meets the needs of consumers and the local community; (3) the reliability of the provider and the provider's ability to comply with applicable laws, regulations, and standards; (4) the cost of the service; and (5) the ability of the provider to work with other providers and community organizations to provide continuity of care and linkages to community-based support systems. The rules address these considerations through the development of the local network development plan, procurement requirements, application of DSHS rules and standards, and the specific criteria used to determine an LMHA's status as a service provider.
Conformance with established quality standards is addressed through the requirement, which applies to both LMHAs and external providers, that all services adhere to DSHS-established standards of care, especially those defined in Chapter 412, Subchapter G, of this title, relating to Mental Health Community Services Standards, and the RDM system. All providers meeting those standards are qualified to provide services funded through the DSHS performance contract.
The ability to meet consumer needs is also addressed through the RDM standards. In designing the RDM system, DSHS used the best available research evidence to identify those services that are most effective in meeting the needs of DSHS consumers and establish related standards. Local needs are currently defined in the local service area plan and, under the rules will be defined in the local network development plan; both of these are developed with input from consumers and other stakeholders. The ability to meet consumer and local needs is also addressed in §412.758, relating to LMHA Provider Status, which requires a provider to demonstrate the ability to provide consumers with access to services that is equivalent to or better than that provided by an LMHA.
The reliability of the provider is addressed through the flexibility afforded to LMHAs and the local communities they serve in determining not only the percentage of service capacity that will be procured, but also the time frame within which such services will be procured. By designing a phased transition to service delivery by external providers, an LMHA can evaluate the ability of an external provider to fulfill its contractual obligations over an extended period of time. Reliability of the provider is also a factor considered in procurement; an LMHA is not required to procure services from a respondent if the LMHA has documented evidence that the provider has a clear and recent history of failing to fulfill its contractual obligations.
Cost of services is addressed through the procurement process. It is reasonable to assume that best use of public money is not achieved if an LMHA contracts for a service equivalent to that which it can provide but at a significantly higher cost, thus reducing the quantity of services that can be provided to consumers. Therefore, an LMHA may reject proposals from external providers during procurement based on a determination that it can deliver the service at a lower cost, provided that the procurement instrument specifies the maximum allowable rate for which the LMHA will contract for the service. However, the maximum allowable rate must include all expenses related to providing the service.
The ability of the provider to work with other providers and community organizations to provide continuity of care and linkages to community-based support systems is addressed through the requirement that all services adhere to DSHS-established standards of care, especially those defined in Chapter 412, Subchapter G, of this title, relating to Mental Health Community Services Standards, and the RDM system; this requirement applies to both LMHAs and external providers.
§412.756. Local Network Development Plan.
Section 412.756, Local Network Development Plan, requires each LMHA to develop a local network development plan that reflects local needs and priorities and maximizes consumer choice and access to services. DSHS will establish a biennial schedule for submission of plans, which is consistent with the statutory requirement for DSHS to review an LMHA's status as a service provider every two years. In establishing the schedule, DSHS may require some LMHAs to submit plans earlier than others, to achieve a staggered review cycle and refinement of the tools and procedures used in the implementation. However, every LMHA will have at least 180 days to develop its plan.
LMHAs are currently required to develop local service area plans using established guidelines on an annual basis. The planning process required under this subchapter is not intended to be a separate activity completed in isolation of other planning efforts. DSHS will work closely with the Department of Aging and Disability Services to review existing planning guidelines and revise them to reflect current conditions, including the requirements of these new rules. DSHS anticipates that, under revised guidelines, the local network development plan will become the primary component of the mental health portion of the local service area plan.
Under subsection (c) the process used to develop the plan must ensure effective participation by stakeholders, including the LMHA's Planning and Network Advisory Committee. This ensures that the planning process required under this subchapter is integrated with existing planning efforts at the local level and includes substantial input from consumers and family members as well as other stakeholders.
Subsection (d) states that DSHS will develop a list of interested providers for each local service area. DSHS will provide a website listing minimum RDM services requirements and, for each local service area, service capacity and funding information. Providers will have an opportunity to submit a description of their qualifications and experience and indicate their interest in providing services in each local service area, and DSHS will post provider responses. This process is made available as a convenience to providers, who will be able to indicate their interest in various areas of the state through a single submission, and to LMHAs, who can use the information to help them determine whether or not procurement is feasible. The list cannot be viewed as a definitive measure of the number of willing and qualified external providers; that can only be determined through actual procurement or through further inquiry by an LMHA, as described below. However, it can indicate a general level of interest and provide LMHAs with a starting point for collecting additional information. The list is one source of information the LMHA will use to assess the potential for acquiring services through external providers. While the absence of providers indicating interest in a particular local service area may be the primary basis for an LMHA to conclude that procurement is not feasible, the presence of providers indicating interest would not be considered conclusive evidence of a sufficient pool of interested providers to require procurement.
Subsection (f) requires LMHAs to maximize dollars available to provide services and specifies strategies an LMHA must consider in doing this, including joint efforts with other local authorities on planning, administration, purchasing and procurement, other authority functions, and service delivery activities. This language is consistent with legislative direction and recognizes that LMHAs may achieve economies of scale by working together. Some LMHAs are already engaged in such activities, but additional opportunities may be found as LMHAs expand their use of external providers. More extensive use of external providers will require development or strengthening of procurement, contracting, and oversight functions while at the same time decreasing activities and administrative functions related to direct service delivery. The rule directs LMHAs to examine options for minimizing overhead and administrative costs and achieving purchasing efficiencies, which may include adoption of new business models and increased collaboration with other LMHAs.
The elements that must be included in a local network development plan are itemized in subsection (g). These include a description of the planning processes and participants, projected service capacity, and baseline data showing the type and quantity of services provided by the LMHA and by external providers. DSHS will define how baselines are to be determined, which may involve information extracted from the DSHS data warehouse or supplemental inventories.
Subsection (g)(5) requires the plan to include a summary of past inquiries received by the LMHA from external providers and the LMHA's responses. This includes inquiries regarding traditional contracting arrangements as well as requests that the LMHA consider alternative proposals such as regional service delivery models covering more than one local service area.
According to subsection (g)(6), the LMHA must present its assessment of the external provider market, and state whether or not it will assemble or expand its external provider network by service type and population served. The RDM model has multiple levels or packages of services for adults and for children/adolescents. External providers may or may not offer a comprehensive array of services, so procurement decisions must be made individually in relation to each service package for each population.
Subsection (g)(7) requires the plan to include a clear rationale for the decisions regarding network assembly or expansion consistent with the LMHA's assessment of the external provider market. If the LMHA is currently providing a service, the presumptive expectation is that the LMHA will seek to establish or expand its external provider network through procurement. Under these circumstances, a decision not to procure the service must be based on one or more of the conditions listed in §412.758(a). These conditions include a determination that interested qualified providers are not available to provide services in the LMHA's service area. If the LMHA is not currently providing the service and has a network of external providers, the LMHA may or may not choose to initiate procurement. In this situation, a decision not to procure the service may be based on the rationale that the existing external provider network provides 100% of the service capacity and meets minimum standards of consumer choice and access. However, the LMHA should consider, among other factors, the length of time since it last procured the service and the benefits of opening the network to introduce competition or to expand capacity, access, and/or consumer choice. If the plan includes service provision by the LMHA, the rationale must identify and support the volume of services that must be provided by the LMHA as required in §412.758(f).
Under subsection (g)(8), if the LMHA decides to assemble or expand the external provider network, the network development plan must describe the LMHA's plans for procurement, including the services and combinations of services to be procured, the capacities to be procured, and the methods and timelines for procurement. An LMHA may "bundle" certain services for procurement so that a provider who wants to offer any one of the bundled services must offer all of them. This may be done for a number of reasons. For example, certain consumers may be expected to use multiple services, and having those services available from a single provider might enhance continuity of care. Also, it may not be economically advantageous to provide a specific service, and it might be necessary to combine that service with a more profitable one to attract external providers.
The description of procurement plans must also address steps and timelines for securing consumer choice decisions and transitioning consumers to new providers. According to procedures delineated in §412.760, Consumer Selection of Providers, the distribution of consumers across the provider network is consumer-driven. No provider is assured of receiving a minimum number of consumers or proportion of service capacity. Furthermore, the procedures allow for a gradual transition to facilitate clinically appropriate transfer planning and continuity of care for consumers moving from the LMHA as a provider to an external provider.
An estimate of the time needed for the LMHA to reestablish service volume lost should a contract be terminated must also be included in the description of procurement plans. The LMHA may use the estimated time required to reestablish lost service volume as a minimum notice period for contract termination by an external provider. While a contract provision does not guarantee that a provider will not abruptly terminate services, it does establish an expectation and a measure of what is necessary for a contacted external provider to leave the network in good standing. This timeframe is also relevant to determinations regarding the protection of critical infrastructure, as addressed in §412.758(a)(5).
Finally, procurement plans must state any additional qualifications that an LMHA will require of individual practitioners in addition to those described in the DSHS performance contract. This provision allows the LMHA to hold external individual practitioners to the same standard applied to the LMHA's employees.
Subsection (g)(9) and (10) require the local network development plan to include a description of how the LMHA will address consumer choice and access and must identify any services to be provided by a single provider due to economic factors that prevent an LMHA from offering consumers choice of more than one provider. For example, it may not be economically feasible to establish more than one Assertive Community Treatment team in a local service area. In some cases, a consumer might have a choice of individual practitioners within the team, but not a choice of teams.
Another element of the plan, required in subsection (g)(11), is a description of how service dollars will be preserved while maintaining the LMHA's ability to continue performing authority functions and administrative services related to the authority functions. This description must include the LMHA's strategies for minimizing overhead and administrative costs and achieving purchasing efficiencies as required in subsection (f), which directs LMHAs to consider joint efforts with other LMHAs. Producing this section of the plan will require the LMHA to clearly identify administrative costs associated with service delivery versus those supporting authority functions. Moving from direct service delivery to a system in which the LMHA's primary role is assembly and maintenance of an external provider network will change the scope and nature of its activities. Under a direct service delivery model, the LMHAs may have achieved certain economies through shared administrative services that support both authority and service delivery functions. As an increasing proportion of services are contracted out, those economies may diminish and require alternative business models to avoid shifting dollars away from service delivery to support authority and related administrative functions.
Additional elements required in the plan in subsection (g)(12) - (14) address cultural and linguistic diversity issues, past efforts to develop an external provider network, and a description of barriers to attracting new external providers and conditions that must be present to attract new external providers to the local services area, as well as the LMHA's plans to address any identified barriers. While the LMHA does not have an obligation to create an artificial market through inflated rates or other financial incentives, it is expected to consider any reasonable steps that might be taken to attract new providers to the area. For example, if the LMHA is able to provide services in outlying areas because local government provides free office space for service delivery on a part-time basis, securing permission for external providers under contract with the LMHA to have similar access to free office space might be sufficient to attract external providers to an area that might otherwise be financially unsupportable. Reasonable steps might also include collaborating with neighboring LMHAs to create a regional service delivery system or to provide certain resource-intensive services on a regional basis. If identified barriers include existing agreements or circumstances identified by the LMHA pursuant to §412.758(a)(6), the LMHA must indicate whether it is possible to make modifications to expand opportunities for external provider participation. For example, an LMHA may have an agreement with city and county health departments through which the agencies share a single facility in a central location to provide "one-stop" healthcare services to the local community. While the written agreement may specify that the LMHA is to provide the mental health services, it may be possible to modify the agreement to allow mental health services to be provided by an external provider under contract with the LMHA.
Finally, subsection (g)(15) requires the LMHA to describe its plans for network development for at least an additional two years. While this information does not need to be as detailed as the information presented for the two years covered by the plan, it should be sufficient to provide context and give a general indication of the scope and rate of development anticipated.
Subsection (h) requires the LMHA to send its draft local network development plan to local consumer and advocacy groups and make it available to the public through its website and other accessible media, invite public comment, consider all comments received, and make any revisions it deems appropriate in response to the public comment. The public comment required in the planning process is a critical element in the structure of the subchapter. By requiring a period of public comment on the LMHA's draft plan, all stakeholders have an opportunity to review the plan, identify any elements that might be inconsistent with the provisions of this subchapter, and suggest changes reflecting their interests. Specific notice to consumer and advocacy groups ensures that key stakeholders are aware of the plans publication and can exercise their rights to review and provide comment. While the LMHA is not required to accept every comment and make corresponding changes to its plan, rejection of a comment does obligate the LMHA to articulate a reasoned justification for its decision that will be subject to review by DSHS.
Subsection (i) requires the LMHA to submit its proposed local network development plan to DSHS together with a summary of the comments it has received and the LMHA's response to the comments. If the LMHA has made revisions to its plan, it must update its website with the revised version.
Subsection (j) describes DSHS's review of local network development plans. DSHS will review the content of the plan to evaluate the LMHA's level of effort, its rationale for decisions and plans, and the extent to which it has implemented previous plans and made progress towards assembly of an external provider network. Particular attention will be given to stakeholder comments and the LMHA's responses to those comments. DSHS may request additional information from the LMHA if the initial submission does not provide sufficient information for DSHS to complete its evaluation.
The diversity of circumstances across the state precludes application of a single standard, so review of local plans will be conducted with consideration to the specific context of the local service area. For example, rural and frontier counties may not have a sufficient population base to attract external providers, and in those areas it is reasonable to expect that the LMHA may continue to be the primary or only provider of mental health services for the foreseeable future. However, as noted previously, these LMHAs are still required to identify and address the barriers to assembly of an external provider network, such as exploring alternative service models and other arrangements that might attract external providers to the area. In urban areas, the opportunities for and supply of external providers will be far greater, facilitating more extensive and rapid expansion of external provider networks. An LMHA in an urban area that does not demonstrate significant progress in assembling an external provider network will be subject to close examination by DSHS. While there may be legitimate circumstances and barriers that fall under a condition articulated in §412.758(a), the LMHA will be expected to provide clear, documented evidence justifying the condition.
DSHS will establish a mechanism for stakeholder involvement in the review process. This mechanism will not be restricted to passive receipt of comments but will provide an opportunity for stakeholders to have meaningful input during the review process. To ensure stakeholder input is not restricted to organizations and individuals represented in Austin, DSHS will explore use of teleconferencing and other available technology to facilitate interaction with stakeholders at both the state and local level.
If DSHS, with input from stakeholders, determines that an LMHA's local network development plan demonstrates the LMHA is in compliance with this subchapter and is making reasonable attempts to develop an external provider network, it will approve the plan. To ensure timely review, the rule specifies that DSHS will approve an acceptable plan within 60 days of receipt. If the plan is deemed to be unacceptable, DSHS will require the LMHA to revise the plan prior to approval. Final approval of a plan requiring revisions is not required to be completed within the 60-day time frame.
Under subsection (k), LMHAs are required to update public postings with their approved network development plans. To promote widespread accessibility, subsection (l) states that DSHS will have a mechanism on its website linking to each of the LMHA websites so that stakeholders can access all approved local plans through a single portal.
Subsection (m) anticipates that the results of procurement are unpredictable and may not conform to an LMHA's local network development plan. For example, the plan may state that the LMHA will contract with external providers for all services, but the procurement may fail to elicit responses from qualified external providers for certain services. In such cases, the LMHA must submit a plan amendment to DSHS and update all electronic or print copies of the plan that it has publicly posted, after receiving approval of the amendment from DSHS.
§412.758. LMHA Provider Status.
Section 412.758, LMHA Provider Status, addresses the LMHA's status as a provider of services. The Texas Health and Safety Code, §533.035(e) states that an LMHA may serve as a provider of services only as a provider of last resort, and only if the LMHA demonstrates to DSHS that (1) it has made every reasonable attempt to solicit the development of an available and appropriate provider base that is sufficient to meet the needs of consumers in its service area, and (2) there is not a willing provider of the relevant services in the authority's service area or in a portion of the area where the provision of the services is needed. Subsection (a), which sets out the conditions under which an LMHA is authorized to be a provider of services, outlines the circumstances under which an LMHA can meet these statutory criteria. These conditions constitute the sole basis for justifying continued service provision; an LMHA may not rely on other factors to justify maintaining its status as a service provider. In making the determination, each service package for adults and children/adolescents must be considered separately. An LMHA's authority to provide services under any of these conditions is limited to the two-year period covered by the local network development plan.
Subsection (a)(1) states that an LMHA may provide services if it determines that interested qualified providers are not available in the local service areas or that no providers met procurement specifications. While procurement is the only method through which an LMHA can positively determine that a provider is qualified, information showing that a provider is not qualified may be available before a decision is made whether or not to initiate procurement. Under §412.756(d), providers have an opportunity to submit a description of their qualifications and experience to be posted on the DSHS list of interested providers. That information alone may be sufficient to establish that a provider lacks the necessary qualifications. For example, a provider with insufficiently credentialed staff and no history of providing mental health services similar to those defined in the RDM services packages is clearly not qualified. This condition may also exist based on the results of procurement when no qualified providers respond or when qualified providers fail to meet additional minimum requirements of the procurement. For example, a qualified provider may propose to provide services at a rate that exceeds the maximum rate specified in an RFP, or may have a clearly documented history of noncompliance.
Subsection (a)(2) allows an LMHA to provide services in order to offer consumers a minimum level of consumer choice. A minimal level of consumer choice is present when consumers can choose from two or more qualified provider organizations in the LMHA's provider network for service package and from two or more qualified individual practitioners in the LMHA's provider network for specific services within a service package. Therefore, an LMHA may continue to provide services if there is only one external provider, even when that provider is able to meet 100 percent of service capacity. Consumer choice is limited to providers within the LMHA's network at any given time; consumer preference does not require specific providers to be included or maintained in the network so that consumers can choose a particular provider. Furthermore, consumer choice may be limited by availability. Because a network has limited capacity, there may be times when only one provider is able to accept new clients. These limitations on consumer choice are consistent with industry standards for both public and private healthcare networks.
Subsection (a)(3) addresses situations in which external providers are unable to offer access to services that is equivalent to or better than access provided by the LMHA. Access has multiple components, including timeliness and geographic proximity. DSHS has established standards for timeliness that are applicable to all providers, but equivalent standards do not exist for geographic proximity. Services should be located so that the greatest number of consumers can reach the service site without undue hardship. This issue is particularly critical in service areas with rural and frontier counties, where service sites must be strategically located to maximize consumer access. After procurement, an LMHA may find that the proposed service locations force a significantly greater number of consumers to travel long distances in order to access services, which would justify the LMHA continuing to provide services. When making this determination, the LMHA should consider all service sites proposed by a potential provider, including sites borrowed from another entity on a full time or part time basis, as well as any alternative service model, such as telemedicine, proposed by a respondent. An LMHA relying on this condition must submit geographical access information to DSHS for verification. DSHS will measure access by using the latest healthcare access technology available to the agency, such as geomapping, thus providing an objective means of comparing the level of geographic access offered by various network configurations with and without participation by the LMHA. A provider's hours of operation may also relate to consumer access to services. However, because it may be more difficult to objectively measure a provider's hours of operation in comparison to those of an LMHA, this factor would be more appropriately addressed by the LMHA as a minimum requirement in any procurement document it issues.
Subsection (a)(4) recognizes that an LMHA may be unable to procure sufficient volume to meet 100 percent of the service capacity. In those cases, the LMHA may provide the balance of the service capacity. When necessary, subsection (f) allows the LMHA to reduce the volume of services provided through contract so that it can retain a sufficient volume of services to be financially viable.
Subsection (a)(5) allows an LMHA to provide services when necessary to protect critical infrastructure to ensure continuous provision of services. Specifically, this condition permits the LMHA to implement a phased transition to an external provider network by procuring an increasing proportion of service capacity over a period of time defined by the LMHA. At the end of this transition period, the LMHA must give up its role as a service provider if it determines that qualified external providers are willing and able to provide sufficient added service volume within the timeframe specified by the LMHA in its local network development plan.
Critical infrastructure is protected when external providers can be relied upon to provide 100 percent of the service capacity indefinitely without significant disruption. This includes the willingness and ability of external providers to provide sufficient added service volume in a timely manner (defined by the LMHA in its network development plan) if one or more providers leave the network. This may be achieved by existing providers increasing their service volume or through emergency procurement of additional providers. The ability to determine not only the proportion of services to be procured for each two-year period, but also the timeframe over which the transition to an external provider network will occur, enables the LMHA to verify the reliability of the external provider network and the greater external provider market. Reliability may be judged through experience or through an assessment of relevant factors such as current providers' infrastructure, past performance, and expressed willingness to provide additional service volume, as well as the market response to past procurements.
Subsection (a)(6) encompasses situations in which existing agreements impose restrictions on an LMHA's ability to contract with external providers or existing circumstances would result in the loss of a substantial source of revenue that supports service delivery if the LMHA did not provide services; specific examples are provided. Substantial revenue is an amount that would support a material volume of client services. These provisions apply to agreements regarding in-kind contributions, such as utilization of a building, as well as direct financial assistance.
The existence of such agreements or circumstances does not allow an LMHA to remain in the role of service provider for an indefinite period of time. A separate determination must be made in each two-year planning cycle, and the LMHA is expected to investigate options for modifying the agreements or circumstances to allow participation by external providers. Examples include an agreement requiring direct service provision by the LMHA that might be amended to allow subcontracting, and a building owned by the LMHA that may be sold or leased over time. The rule recognizes that funders and other contractual partners may not allow such modifications, but the LMHA is obligated to explore the possibility.
Subsection (b) authorizes an LMHA to provide services during the two-year period if it determines, based on the rationale provided in its approved local network development plan, that it will not assemble or expand the external provider network because of one or more of the conditions identified in subsection (a). If the condition(s) apply to only certain services, the authorization is limited to those specific services.
Subsection (c) states that an LMHA is not authorized to provide services during the two-year period covered by an approved local network development plan if it determines, based on the rationale provided in its approved plan, that it will not assemble or expand the external provider network because its current network of external providers delivers 100 percent of the service capacity and meets levels of consumer choice and access specified in §412.758(a)(2) and (3), relating to LMHA Provider Status.
Subsection (d) recognizes that an LMHA's status as a provider cannot be definitively determined prior to a planned procurement; the decision must be based on the results of the procurement as well as the approved local network development plan. If the results of the procurement are not consistent with the LMHA's intended status as a provider described in the approved plan, the LMHA must submit a plan amendment to DSHS for approval.
Subsection (e) clarifies that an LMHA is not required to breach existing contracts or to lose or forego substantial revenue that supports the provision of services in order to comply with the provisions of this subchapter. LMHAs are required to give prospective funders information about the intent and requirements of this subchapter and are prohibited from conditioning receipt of funds upon direct service provision by the LMHA. The rule does, however, recognize that funders have the right to make policy decisions regarding use of their funds. If a funder receives the information about the state's intent for LMHAs to establish external provider networks and still chooses to require direct service provision by the LMHA, the LMHA is permitted to accept the funds. Also, the restrictions of subsection (e) do not apply to grants, gifts, or other funding sources that do not involve the use of "department federal or department state funds" disbursed to an LMHA by DSHS.
Subsection (f) applies when the LMHA provides services under one or more of the conditions in subsection (a). In such situations, the LMHA must identify the proportion of service capacity that it must provide in order to make service provision financially viable and provide the rationale for the decision. For example, an LMHA may be able to procure only 95 percent of the service capacity for a given service. Under subsection (a)(4), the LMHA would be authorized to provide services. However, the LMHA may find that it is not financially viable to provide only five percent of the service capacity. An example of this would be if the scope of the LMHA's direct service delivery would be reduced to the extent that certain staff or other resources must be retained in order to provide the service but the low volume of service results in idle capacity. Under such circumstances, the LMHA may calculate the proportion of service capacity necessary to fully utilize its resources and reduce the service capacity allowed from external providers by a commensurate amount.
§412.760. Consumer Selection of Providers.
Section 412.760 describes the process that will be used by LMHAs to provide consumers and legally authorized representatives with the information and opportunities necessary to exercise consumer choice.
Subsection (a) requires the LMHA to maintain a list with the most current information available about each provider in its network, including the provider's name, service locations, contact information, website address, and languages in which services are available. If the LMHA is a provider of services, the list must include the same information for the LMHA provider as for external providers. The number of required elements is minimal, and excludes items subject to frequent change to promote maintenance of accurate and current information that can be presented in a simple, easy-to-use format. The list is intended to be an objective source of comparable information about each provider, including how a consumer can obtain more detailed information. The LMHA is required to post the list on its website and distribute it at least annually to local consumer and advocacy groups.
Providers are free to engage in additional consumer and stakeholder education efforts using their own resources, but the LMHA is not required to distribute brochures or other materials supplied by external providers. The role of the LMHA is to provide consumers with accurate and consistent information about providers so that no provider has an advantage in the official presentation of information. Each provider is responsible for its own marketing.
Subsection (b) requires the LMHA to provide forums through which providers can present information to consumers and other stakeholders. Such forums might include presentations at advocacy group meetings, open houses, or participation in community health fairs. These forums are intended to provide consumers and stakeholders with more in-depth information and an opportunity to ask questions of various providers.
Under subsection (b), LMHAs have defined but limited responsibilities for providing consumers and other stakeholders with information about providers consistent with the level of resources available to the LMHA to perform authority functions, including consumer education. The requirement to distribute the provider list to consumer and advocacy groups is based on the expectation that these groups will play an active role in disseminating consumer information and providing consumers with support and assistance.
Subsection (c) describes the process through which consumers select their providers. The LMHA is required to provide consumers and legally authorized representatives with a copy of the provider list. New consumers receive this information after the LMHA conducts an assessment and recommends services based on the results of the assessment. The LMHA is also required to provide a description of the array of service options for which the consumer may be authorized. In describing the array of service options available to the consumer, the LMHA is expected to offer or allow a consumer to choose only some of the services for which the consumer may be authorized; a consumer is not required to accept all services for which he or she may be authorized.
The LMHA must provide the consumer or legally authorized representative with the list of providers offering services for which the consumer may be authorized and inform them that they have the right to choose from among available providers and may change providers. The LMHA must make a telephone and appropriate space available for consumers to use in selecting a provider. This is to support consumers in making an informed and timely selection and to facilitate linking the consumer with the chosen provider. If the consumer does not wish to choose a provider at the time of the assessment, the LMHA must give consumers a reasonable period of time to make a decision and cannot demand that a selection be made at the time of the assessment.
If the consumer does not make a selection within the designated time frame, the LMHA shall assign a provider, with assignment rotating equally among all available providers. Available providers are those offering the required service who have sufficient capacity to accept new clients. Consumers are not required to contact the LMHA stating their choice of provider; they may indicate choice by contacting a provider directly. An LMHA can identify consumers who have not selected a provider within the designated time frame by generating a list from the Client Assignment and Registration (CARE) system of clients who have been assessed but for whom no subsequent service authorization has been requested.
All consumers and legally authorized representatives shall be given the current provider list and be offered the option of choosing a different provider at every scheduled treatment plan review. This is a mechanism through which consumers can learn about new providers and be reminded that the option to change providers remains available. Consumers are allowed to change providers at any time subject to approval by the LMHA. The rule does not restrict the frequency with which a consumer may change providers, but the LMHA may impose some restrictions based on the clinical appropriateness of the request within the context of the utilization management authorization process. Excessive movement from one provider to another may not be in the best interest of the consumer and may indicate the need for clinical intervention. Consumers may request a review of LMHA decisions under the existing notification and appeals process described in §401.464 of this title.
LMHAs are required to maintain documentation of the consumer's or legally authorized representative's provider selection. This includes documentation at every scheduled treatment plan evaluation as required in subsection (c)(6) of this section.
§412.762. Procurement Principles.
Section 412.762, related to Procurement Principles, describes standards that govern all procurement activities undertaken by the LMHA in assembling and expanding an external provider network.
Subsection (a) requires an LMHA to comply with applicable rules and statutes and clarifies that an LMHA may procure mental health services required by the DSHS performance contract and the LMHA's approved local network development plan by any procurement method allowed by applicable statutes and rules that provides the best value to the LMHA.
This subchapter includes procedures for two methods that are likely to be used extensively in the procurement of mental health services by an LMHA: Request for Proposal and Open Enrollment. An alternative competitive procurement method is informal solicitation, which may be used to competitively procure services when the contract amount will not exceed $25,000. Certain non-competitive procurement methods may be used in situations described in §412.59 of this title (relating to Non-competitive Procurement of Community Services). These include sole source procurement, which may be used when the services are proprietary to a single source or only one source can or is willing to provide the service; procurement from a governmental entity; emergency procurement, which may be used in an emergency situation in which a delay may result in harm to a consumer; procurement of services for less than $5,000; and procurement following an unsuccessful competitive procurement process. These processes are not specifically addressed in the subchapter because it is anticipated that their use will be relatively rare in the purchase of mental health services.
The list of relevant factors used in determining best value in subsection (b) is a compilation of factors from the Texas Health and Safety Code, §533.016(c) and §534.055(f), which an LMHA considers when determining best value. Minor changes have been made to eliminate redundancy and wording applicable only to goods rather than services. Subsections (c) and (d) require that all competitively procured contracts and any renewals of mental health services contracts be based on best value, as determined by considering all relevant factors listed in subsection (b).
§412.764. Request for Proposals.
Section 412.764 describes procedures for competitive procurement using the request for proposal (RFP) method.
Under paragraph (1) LMHAs choosing the RFP procurement method are responsible for developing a draft RFP to ensure public input. The rule requires the draft RFP to include all elements required by applicable statutes, rules, and procurement standards as well as other elements related to transitioning to external providers and providing for consumer needs.
In the local network development plan required under §412.756, Local Network Development Plan, LMHAs must specify steps and timelines for transitioning consumers to new providers. These goals must be included in the draft RFP to inform potential respondents about the processes through which consumers will select a provider and, when applicable, transition to a new provider. In responding to the RFP, respondents are required to describe how they intend to implement those transition goals. If the LMHA expects external providers to consider or give hiring preference to LMHA employees who will lose their jobs as a result of procurement, this must be stated in the RFP.
The draft RFP requires respondents to describe how they will involve consumers, legally authorized representatives, and families at the policy and practice level. A key goal underlying the provisions of this subchapter is to empower consumers, their legally authorized representatives, and family members and promote their active involvement in the development of the mental health service system as well as their individual treatment and recovery. Providers may address this requirement by establishing special consumer advisory, planning, and review committees or by appointing consumers to such committees; utilizing consumers in staff orientation and training; involving consumers in the development of information given to consumers, staff, and members of the public; formalizing processes to solicit and respond to consumer comments and suggestions; and establishing other mechanisms through which consumers can contribute to the development and/or review of organizational policies and practices. The rule does not require responders to use a particular process or to implement suggestions received from consumers.
Respondents will also be required to specify where and when services will be provided within the LMHA's local service area. Services locations and hours of operation are important components of consumer access that must be considered in the assembly of a provider network. If the post-procurement network reduces consumer access to services, §412.758, LMHA Provider Status, allows the LMHA to provide services as part of the provider network. Sites identified by respondents in their proposals will be the basis for making this determination and may be submitted to DSHS.
An additional element that an LMHA must include in its draft RFP is the maximum allowable rate for the services being procured if the LMHA intends to reject any proposal with a rate exceeding that amount.
Paragraph (2) requires the LMHA to publicize the draft RFP, solicit public comment, and invite potential providers to describe the challenges in providing services in the LMHA's local service area. In addition to posting the draft RFP on state and local websites, the LMHA is required to send the draft RFP to interested providers and local consumer and advocacy organizations. Interested providers include those who have contacted the LMHA and those identified through the DSHS website referenced in §412.756(d). This ensures that known stakeholders most impacted by the results of procurement are aware that the draft RFP is available for review. Publication of the draft RFP also provides an avenue for soliciting more general feedback from potential providers about barriers and challenges in providing services; this information may be useful to the LMHA in developing subsequent local network development plans.
The development and publication of a draft RFP allows potential respondents and other stakeholders to review the content and evaluate whether the proposed specifications are consistent with the requirements of this subchapter and encourage assembly and expansion of an external provider network. It also establishes a way for stakeholders to challenge specific provisions and suggest revisions to the draft RFP, which may result in a more successful procurement and reduce subsequent challenges and protests.
Paragraph (3) requires the LMHA to consider all public comments it receives in developing the final RFP and lists additional elements that must be included. Paragraphs (4) and (6) - (11) describe additional requirements for conducting a procurement using the RFP method. Paragraph (7) permits minor changes to be made to the final RFP by the LMHA provided that everyone who has already obtained the final RFP is notified of the changes and is provided equal opportunity to respond. This provision is intended to allow for corrections or clarifications to be made to the final RFP; however, it would not allow changes such as a modification to the type(s) or volume of services to be procured or the maximum allowable rate for the services to be procured, which are considered more substantive in nature and would require the LMHA to re-publish the amended RFP as a draft RFP to ensure public input on the LMHA's new or amended requirements. Requirements related to developing and publishing an RFP Notice and making an award come from §412.58(2)(B)(i) and (2)(C) of this title (relating to Competitive Procurement Methods for Community Services), which currently applies to LMHAs.
Paragraph (5) clarifies that an LMHA may not submit a proposal in response to its own RFP. The procurement process is used to make comparison among external respondents. The only mechanism in the RFP process for a comparison between the LMHA as a provider and an external provider is in the development of minimum specifications or requirements, which may reflect specific aspects of the LMHA's service delivery, such as hours of service or price.
§412.766. Open Enrollment.
Section 412.766 describes procedures for procurement using the open enrollment method.
Under paragraph (1) LMHAs choosing the open enrollment procurement method are responsible for developing a draft request for applications (RFA) to ensure public input. The rule requires the draft RFA to include all elements required by applicable statutes, rules, and procurement standards as well as other elements related to transitioning to external providers and providing for consumer needs.
A critical element in the RFA is the rate of payment for the services that an applicant must agree to accept. The LMHA is responsible for including in the RFA the method it used to determine that rate of payment.
The LMHA must include in the draft RFA a detailed description of the LMHA's minimum requirements for a provider of the services to be procured. These minimum requirements must include requirements related to the cultural and linguistic needs of the consumers in the LMHA's local service area; the involvement of consumers, legally authorized representatives, and families at the policy and practice levels within the applicant's organization or individual practice; transition goals for LMHA employees, if applicable; a transition plan for consumers; and location and hours of services. Additionally, the draft RFA requires the applicant to include information demonstrating how the applicant will meet the minimum requirements.
Paragraph (2) requires the LMHA to publicize the draft RFA, solicit public comment, and invite potential providers to describe the challenges in providing services in the LMHA's local service area. In addition to posting the draft RFA on state and local websites, the LMHA is required to send the draft RFA to interested providers and local consumer and advocacy organizations. Interested providers include those who have contacted the LMHA and those identified through the DSHS website referenced in §412.756(d). This ensures that known stakeholders most impacted by the results of procurement are aware that the draft RFA is available for review. Publication of the draft RFA also provides a mechanism for soliciting more general feedback from potential providers about barriers and challenges in providing services; this information may be useful to the LMHA in developing subsequent local network development plans.
The development and publication of a draft RFA allows potential respondents and other stakeholders to review the content and evaluate whether the proposed specifications are consistent with the requirements of this subchapter and encourage assembly and expansion of an external provider network. It also establishes a way for stakeholders to challenge specific provisions and suggest revisions to the draft RFA, which may result in a more successful procurement and reduce subsequent challenges and protests.
Paragraph (3) requires the LMHA to consider all public comments it receives in developing the final RFA and lists additional elements that must be included. Paragraphs (4), (6), (7), and (8) describe additional requirements for conducting a procurement using the open enrollment method. Most provisions related to developing and publishing an RFA Notice and making an award come from §412.60(b)(1) and (c) of this title (relating to Open Enrollment), which currently applies to LMHAs.
Paragraph (5) clarifies that an LMHA may not submit an application in response to its own RFA. Paragraph (9) states that for every service procured through open enrollment after the effective date of this subchapter, the LMHA must, at least every two years, procure the service using the same RFA developed in accordance with paragraphs (1) - (3); procure the service using another RFA developed in accordance with paragraphs (1) - (3); or procure the service using another procurement method.
COMMENTS
No comments were received regarding the adoption of the new sections.
LEGAL CERTIFICATION
The Department of State Health Services, Deputy General Counsel, Lisa Hernandez, certifies that the rules have been reviewed by legal counsel and found to be a valid exercise of the agencies' legal authority.
STATUTORY AUTHORITY
The new sections are authorized by the Texas Health and Safety Code, §533.035(a), which requires the Executive Commissioner to designate an LMHA in one or more local service areas; §533.035(b), which authorizes DSHS to disburse to LMHAs funds to be spent in the local service area for community mental health services and chemical dependency services for persons who are dually diagnosed as having both chemical dependency and mental illness; §533.035(c), which requires LMHAs to use the funds received from DSHS to ensure that mental health services are provided in the local service area; §533.035(d), which requires LMHAs to consider public input, ultimate cost-benefit, and client care issues to ensure consumer choice and the best use of public money in assembling a network of service providers and making recommendations relating to the most appropriate and available treatment alternatives for individuals in need of mental health services; §533.035(e), which requires an LMHA to serve as a provider of services only as a provider of last resort and only if the LMHA demonstrates to DSHS that the LMHA has made every reasonable attempt to solicit the development of an available and appropriate provider base that is sufficient to meet the needs of consumers in its service area and there is not a willing provider of the relevant services in the LMHA's service area or in the county where the provision of the services is needed; and §533.035(f), which requires DSHS to review the appropriateness of an LMHA's status as a service provider at least biennially. The new sections are also authorized by the Texas Government Code, §531.0055, and the Texas Health and Safety Code, §1001.075, which authorize the Executive Commissioner of the Health and Human Services Commission to adopt rules and policies necessary for the operation and provision of health and human services by DSHS and for the administration of the Texas Health and Safety Code, Chapter 1001.
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 June 15, 2007.
TRD-200702485
Lisa Hernandez
Deputy General Counsel
Department of State Health Services
Effective date: July 5, 2007
Proposal publication date: March 16, 2007
For further information, please call: (512) 458-7111 x6972
Subchapter J. INSTITUTIONS FOR MENTAL DISEASES
The Executive Commissioner of the Health and Human Services Commission (commission) on behalf of the Department of State Health Services (department) adopts amendments to §§419.371, 419.373 - 419.377, and 419.379, and the repeal of §419.372 and §419.378, concerning Institutions for Mental Diseases (IMD), without changes to the proposed text as published in the March 23, 2007, issue of the Texas Register (32 TexReg 1706) and, therefore, the sections will not be republished.
BACKGROUND AND PURPOSE
The department is authorized to administer the Texas Medicaid IMD program. The rules in this subchapter describe the criteria used to determine whether an IMD provider is eligible to receive Medicaid reimbursement for inpatient hospital services provided to people aged 65 and older in an IMD. They describe the methods by which IMD provider eligibility is established and reimbursement for covered services is accomplished, and the standards for which IMD providers will be held accountable. The amendments and repeals are necessary to update statutory and other references, to ensure consistency with current law and best practices, and to provide greater clarity to the rules.
Government Code, §2001.039, requires that each state agency review and consider for re-adoption each rule adopted by that agency pursuant to the Government Code, Chapter 2001 (Administrative Procedure Act). Sections 419.371 - 419.379 have been reviewed and the department has determined that reasons for adopting these sections continue to exist because rules on this subject are needed, with the exception of §419.372 and §419.378, which are repealed.
SECTION-BY-SECTION SUMMARY
Amendments to §419.371 include incorporating the language from §419.372 and changing the title to Purpose and Application, and §419.372 is repealed.
An amendment to §419.373 is adopted for the definition of "Mental diseases," to delete reference to a specific edition of the International Classification of Diseases and to add reference to the Diagnostic and Statistical Manual of Mental Disorders in order to define the term as an inclusive and up-to-date listing of relevant diagnoses.
An amendment to §419.375(c) eliminates the requirement that an IMD provider be given a maximum of 48 hours notice before a review. The department is authorized under Health and Safety Code, §533.015, to make any inspection of a facility or program under the department's jurisdiction without announcing the inspection. The change is necessary to afford staff sufficient flexibility to accomplish the reviews, and the rule would not prohibit the department from continuing to provide notice.
Additional amendments to §419.375(c) identify provider accountability for assessing barriers to serving the patient in a less restrictive setting and taking efforts to achieve a less restrictive placement for the patient. These changes implement requirements of the U. S. Supreme Court decision in Olmstead v. L.C., 527 U. S. 581 (1999). The amendment to §419.375(c)(2) makes paragraph (3) repetitive and it is deleted.
Amendments for §419.375(d) identify the failure to implement a corrective action plan as a contract violation and clarify that the provider would be subject to sanctions set forth in the contract, including termination. With these changes, paragraphs (1) and (2) of subsection (d) are deleted as unnecessary.
A new paragraph (7) is added to subsection (b) of §419.376 to identify noncompliance with rules or a corrective action plan as a basis for contract termination. An amendment to subsection (c) permits sanctions identified in the contract to be applied for failure to timely submit an acceptable cost report. Subsection (d) is amended to remove reference to outdated adverse action rules and to update reference to the commission's rules governing contested case hearings for contract terminations. Subsection (e) is amended to update reference to the commission's rules governing Medicaid fraud and abuse. In addition, the title of §419.376 is revised to reflect more accurately the substance of the rule.
Additional amendments are also adopted to §§419.373 - 419.377 in order to update and correct references to the name of the department and the commission, correct grammatical errors and statutory references, and improve the clarity of the rules. Section 419.378 is repealed as unnecessary. Amendments to §419.379, regarding required distribution of the rules, involve removing reference to the Texas Mental Health and Mental Retardation Board, and associated renumbering of paragraphs.
COMMENTS
The department, on behalf of the commission, did not receive any comments regarding the proposed rules during the comment period.
LEGAL CERTIFICATION
The Department of State Health Services, Deputy General Counsel, Linda Wiegman, certifies that the rules, as adopted, have been reviewed by legal counsel and found to be a valid exercise of the agencies' legal authority.
25 TAC §§419.371, 419.373 - 419.377, 419.379
STATUTORY AUTHORITY
The amendments are authorized by Government Code, §531.0055, and Health and Safety Code, §1001.075, which authorize the Executive Commissioner of the Health and Human Services Commission to adopt rules and policies necessary for the operation and provision of health and human services by the department and for the administration of Health and Safety Code, Chapter 1001. Review and re-adoption of the rules implements Government Code, §2001.039.
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 June 13, 2007.
TRD-200702415
Linda Wiegman
Deputy General Counsel
Department of State Health Services
Effective date: July 3, 2007
Proposal publication date: March 23, 2007
For further information, please call: (512) 458-7111 x6972
STATUTORY AUTHORITY
The repeals are authorized by Government Code, §531.0055, and Health and Safety Code, §1001.075, which authorize the Executive Commissioner of the Health and Human Services Commission to adopt rules and policies necessary for the operation and provision of health and human services by the department and for the administration of Health and Safety Code, Chapter 1001. Review of the rules implements Government Code, §2001.039.
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 June 13, 2007.
TRD-200702416
Linda Wiegman
Deputy General Counsel
Department of State Health Services
Effective date: July 3, 2007
Proposal publication date: March 23, 2007
For further information, please call: (512) 458-7111 x6972
25 TAC §§450.100 - 450.117, 450.120 - 450.126
The Executive Commissioner of the Health and Human Services Commission (commission), on behalf of the Department of State Health Services (department), adopts new §450.100 and amendments to §§450.101 - 450.117 and 450.120 - 450.126 concerning the licensing and regulation of chemical dependency counselors without changes to the proposed text as published in the March 23, 2007, issue of the Texas Register (32 TexReg 1709) and, therefore, the sections will not be republished.
BACKGROUND AND PURPOSE
The new rule and amendments to the rules are needed to correct certain citations and terminology, replace references to the department's legacy agency, the Texas Commission on Alcohol and Drug Abuse, and delete unnecessary text; to help increase the licensure examination passing rate for counselor interns; to recognize, through reduced supervision requirements, a higher level of competence achieved by counselor interns who have passed both portions of the licensure examination; to improve the ethical standards that apply to both licensed counselors and interns; and to allow persons on or called to active military duty to delay renewal of their license without penalty for the period of active duty. The amendments also implement statutory provisions for the Texas Online Project by providing for collection of subscription and convenience fees associated with new and renewal application processing through Texas Online. For consistency with other professional licensing programs, the amendments add the ability to pay fees by personal check and, to address the potential for increased costs from returned checks, authorize the department to collect a $25 fee for returned checks.
SECTION-BY-SECTION SUMMARY
The new §450.100 incorporates by reference currently applicable definitions found in §441.101 of this title, and adopts new and amended definitions to account for the transfer of certain duties, functions, programs, and powers from the Texas Commission on Alcohol and Drug Abuse to the department, and to clarify that inclusion of other licensed individuals within the definition of "Qualified Credentialed Counselor" does not extend the authorized scope of their respective licenses.
In addition to the changes outlined below, the amendments to §§450.101 - 450.117 and 450.120 - 450.126 correct certain internal rule citations, amend references to the former Texas Commission on Alcohol and Drug Abuse to refer to the department, and delete unnecessary text.
The amendment to §450.101 uses the unmodified term "social worker", consistent with Texas Occupations Code, §504.002, but clarifies that the exemption applies only to the extent that a person is acting within the authorized scope of one of the enumerated licenses held by that person.
The amendment to §450.102 corrects the terminology used in the reference to the definition of the KSAs by changing the word "Abilities" to "Attitudes," and corrects the cite reference.
The amendment to §450.104 creates a fee for returned checks and, consistent with other professions licensed by the department, allows counselor fees to now be paid with personal check. Pursuant to Texas Government Code, §2054.252, the proposed amendment allows the Department to collect subscription and convenience fees to recover costs associated with new and renewal application processing through Texas Online.
The amendment to §450.112 allows counselor interns to take each portion of the licensure examination four times, both verbal and written, without requiring that the two portions be taken together.
The amendment to §450.116 modifies for clarification the description of social workers who, because of their dual licensure status, are required to complete fewer continuing education hours to maintain their license as a licensed chemical dependency counselor (LCDC). Additionally, these licensees will not have to submit a copy of their non-LCDC license at the time of renewal, since the department has the capacity to independently verify their non-LCDC licensure status. The amendment also adds provisions for licensure renewal for persons on or called to active military duty, in accordance with Texas Occupations Code, Chapter 55.
The amendment to §450.121 adds ethical standards relating to billing for services that were not provided, meeting with clients in inappropriate locations, and prohibiting conduct that could be considered coercive or degrading to the client or another.
The amendment to §450.125 revises the requirements for direct supervision of interns to allow an intern with less than 2,000 hours of documented work experience who has passed both the written and oral examinations to be supervised in accordance with Level III standards.
COMMENTS
The department, on behalf of the commission, has reviewed and prepared responses to the comments received regarding the proposed rules during the comment period, which the commission has reviewed and accepts. One commenter was an individual submitting comments for the Alcohol and Drug Abuse Counseling Program at Midland College, who was not against the rules in their entirety, but submitted a recommendation for change as discussed in the summary of comments. The second commenter was an Austin Community College Human Services Professor who commented in favor of adoption of the rules.
Comment: Without addressing the comment to a specific proposed rule, one commenter expressed support for legislative amendments to give counselor interns the option of obtaining their supervised work experience from a certified clinical supervisor, in order to address a shortage of registered Clinical Training Institutions in some areas.
Response: The commission disagrees with the commenter, since the comment addresses legislative issues and suggests substantive changes not included in the proposed rules published for comment. No change was made to the rules as a result of this comment.
LEGAL CERTIFICATION
The Department of State Health Services, Deputy General Counsel, Lisa Hernandez, certifies that the rules, as adopted, have been reviewed by legal counsel and found to be a valid exercise of the agencies' legal authority.
STATUTORY AUTHORITY
The amendments and new rule are authorized by Texas Occupations Code, §504.051, which authorizes rulemaking necessary to carry out the duties established under Texas Occupations Code, Chapter 504, and the establishment of standards of conduct and ethics for Chapter 504 licensees; by Texas Occupations Code, §504.053, which authorizes the imposition of licensing and other fees to cover the costs of administering Texas Occupations Code, Chapter 504; by Texas Government Code, §2054.252, which requires the department to participate in an electronic system for occupational licensing transactions and authorizes an increase in licensure fees and the imposition of convenience fees on license holders to recover costs associated with online application and renewal application processing; by Texas Occupations Code, §§55.002 and 55.003, which authorize rulemaking to exempt active duty military personnel from late renewal fees and penalties, and authorize additional time for persons called to active duty to meet continuing education and renewal requirements; and by Government Code, §531.0055, and Health and Safety Code, §1001.075, which authorize the Executive Commissioner of the commission to adopt rules and policies necessary for the operation and provision of health and human services by the department and for the administration of Health and Safety Code, Chapter 1001.
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 June 13, 2007.
TRD-200702417
Lisa Hernandez
Deputy General Counsel
Department of State Health Services
Effective date: July 3, 2007
Proposal publication date: March 23, 2007
For further information, please call: (512) 458-7111 x6972