25 TAC §§414.3, 414.4, 414.7, 414.10, 414.11, 414.16
The Texas Department of Mental Health and Mental Retardation
(TDMHMR) proposes amendments to §§414.3, 414.4, 414.7, 414.10, 414.11,
and 414.16 of Chapter 414, Subchapter A, concerning client-identifying information.
The amendments would implement the provisions of the Texas Family Code, §153.3721
(added by the 76th Legislature, House Bill 2455), which provides a joint conservator
the right to access the medical records of the child; the Texas Health and
Safety Code, §614.017 (amended by the 76th Legislature, House Bill 3256),
which defines "special needs offender" and describes the entities that may
exchange client-identifying information of special needs offenders without
consent for disclosure; the Texas Code of Criminal Procedure, §46.04
(added by the 76th Legislature, House Bill 245), which states that a person
who files a motion under the article waives confidentiality of all mental
health and medical records relevant to the person's competency; the Texas
Insurance Code, Article 21.58A (amended by the 76th Legislature, Senate Bill
569), which restricts a utilization review agent from receiving or reviewing
a professional's process or progress notes; the Texas Health and Safety Code, §611.004
(amended by the 76th Legislature, Senate Bill 1217), which clarifies to whom
and for what purpose a professional may disclose confidential information
relating a person detained in a correctional facility; and the Texas Health
and Safety Code, §574.083 (amended by the 76th Legislature, Senate Bill
358), which allows the release of confidential information to law enforcement
that relates to a court-committed client who is absent from a mental health
facility.
Bill Campbell, Chief Financial Officer, has determined that for each year
of the first five years the proposed amendments are in effect, enforcing or
administering the rules does not have foreseeable implications relating to
cost or revenue of the state or local governments because the proposed amendments
do not include requirements that relate to cost or revenue of the state or
local governments.
Karen Hale, Commissioner, has determined that, for each year of the first
five years the proposed amendments are in effect, the public benefit expected
is the compilation of relevant state and federal regulations regarding the
disclosure of client-identifying information. The subchapter is organized
and written so that its content is useful, understandable, and relevant to
those who must comply with the regulations as well as to those who are the
subject of the identifying information. It is anticipated that there would
be no economic cost to persons required to comply with the proposed amendments
because they do not impose economic requirements on such persons.
It is anticipated that the proposed amendments will not affect a local
economy because the amendments do not include requirements that relate to
a local economy.
It is anticipated that the proposed amendments will not have an adverse
economic effect on small businesses or micro-businesses because the amendments
do not include requirements that would economically affect small businesses
or micro-businesses.
Written comments on the proposal may be sent to Linda Logan, director,
Policy Development, Texas Department of Mental Health and Mental Retardation,
P.O. Box 12668, Austin, Texas, 78711-2668, within 30 days of publication.
The amendments are proposed under the Texas Health and Safety
Code, §532.015, which provides the Texas Board of Mental Health and Mental
Retardation (board) with broad rulemaking authority; the Texas Health and
Safety Code, §576.005, which mandates the confidentiality of records
of a mental health facility that directly or indirectly identify a present,
former, or proposed patient; and the Texas Health and Safety Code, §595.002,
which requires the board to adopt rules that it considers necessary to facilitate
compliance with Chapter 595.
The amendments would affect the Texas Health and Safety Code, §532.015, §576.005,
and §595.002.
§414.3.Definitions.
The following words and terms, when used in this subchapter, have the
following meanings, unless the context clearly indicates otherwise:
(1)-(11)
(No change.)
(12)
Legally authorized representative--A legally authorized
representative means:
(A)
a parent
,
[
or
] legal guardian
, or conservator
if the client is a minor, or a legal guardian if the
client has been adjudicated incompetent to manage the client's personal affairs;
(B)
an agent of the patient authorized under
the Advance
Directives Act, Texas Health and Safety Code, Chapter 166
[
a durable
power of attorney for health care
];
(C)-(E)
(No change.)
(13)-(16)
(No change.)
(17)
Special needs offender--
An individual for whom
criminal charges are pending or who after conviction or adjudication is in
custody or under any form of criminal justice supervision.
[
A special
needs offender is:
]
[(A)
a convicted felon with mental illness
or mental retardation; or]
[(B)
an individual with mental illness or
mental retardation placed on community supervision after a grant of deferred
adjudication.]
(18)-(20)
(No change.)
§414.4.Statutes and Federal Regulations Governing Disclosure.
(a)
State statutory provisions governing disclosure of client-identifying
information concerning clients receiving mental health and mental retardation
services are contained
primarily
in §576.005 and Chapter 611
of the Texas Health and Safety Code.
(b)
(No change.)
(c)
Texas Human Resources Code,
Chapter 48
[
§48.0385
], establishes authority for the Texas Department of Protective
and Regulatory Services (TDPRS) to have access to client records necessary
to conduct investigations into allegations of abuse and neglect of persons
served.
(d)-(h)
(No change.)
(i)
The Texas Code of Criminal Procedure,
Article 46.04(j), waives confidentiality of all client-identifying information
of a person challenging his or her competency under Article 46.04.
§414.7.When Consent for Disclosure is not Required: Clients Receiving MHMR Services.
(a)-(b)
(No change.)
(c)
When required in other than court proceedings. Client-identifying
information may be disclosed without consent:
(1)-(3)
(No change.)
(4)
to persons, corporations, or governmental agencies
involved in the paying or collecting of fees for mental or emotional health
services provided by a professional
. However, pursuant to the Texas Insurance
Code, Article 21.58A(o), a utilization review agent may not receive or review
a professional's process or progress notes
;
(5)-(11)
(No change.)
(12)
to
designated persons or personnel of a correctional
facility
[
health care personnel of a penal or other custodial institution
] in which the client is detained if the disclosure is for the sole
purpose of providing
treatment and
health care to the client
in custody
.
(d)
When used between facilities, local authorities
, community
centers
, and contract providers. Client-identifying information may
be disclosed without consent when it is used between department facilities,
local authorities
, community centers
, and contract providers only
if
(1)-(3)
(No change.)
(e)
(No change.)
(f)
When used for continuity of care of special needs offenders.
In accordance with the Texas Health and Safety Code, §614.017, to provide
continuity of care for a special needs offender (as defined), client-identifying
information (i.e., identity
;
[
,
] needs
;
[
,
] treatment
;
[
,
] social, criminal and vocational
history
;
[
,
]
supervision status and compliance with
conditions of supervision;
and medical and mental health history) concerning
the offender may be disclosed and received without consent among the following
entities
[
agencies, or a division within the following agencies,
] or a person with an agency relationship with
one of the following
entities
[
a following agency,
] or a person who contracts
with
one or more of the following entities
[
a following agency
]:
(1)
the institutional division of the Texas
Department of Criminal Justice;
(2)
the pardons and paroles division
of the Texas Department of Criminal Justice;
(3)
the community justice assistance
division of the Texas Department of Criminal Justice;
(4)
the state jail division of the Texas
Department of Criminal Justice;
(5)
the Texas Department of Mental Health
and Mental Retardation;
(6)
the Texas Juvenile Probation Commission;
(7)
the Texas Youth Commission;
(8)
the Texas Rehabilitation Commission;
(9)
the Texas Education Agency;
(10)
the Criminal Justice Policy Council;
(11)
the Texas Commission on Alcohol
and Drug Abuse;
(12)
the Commission on Jail Standards;
(13)
the Texas Department of Human Services;
(14)
the Texas Department on Aging;
(15)
the Texas School for the Blind and
Visually Impaired;
(16)
the Texas Department of Health;
(17)
the Texas Commission for the Deaf
and Hard of Hearing;
(18)
community supervision and corrections
departments;
(19)
personal bond pretrial release offices
established under Article 17.42, Code of Criminal Procedure;
(20)
local jails regulated by the Commission
on Jail Standards; and
(21)
the office of the Texas Council
on Offenders with Mental Impairments.
[(1)
Texas Department of Criminal Justice
and its divisions, which are:]
[(A)
Community Justice Assistance Division;]
[(B)
Parole Division;]
[(C)
Institutional Division;]
[(D)
State Jail Division; and]
[(E)
the office of the Texas Council on Offenders with Mental
Impairments;]
[(2)
a community supervision and
corrections department;]
[(3)
Texas Department of Human Services;]
[(4)
Texas Department on Aging;]
[(5)
Texas Rehabilitation Commission;]
[(6)
Texas Department of Health;]
[(7)
Texas Commission for the Blind;]
[(8)
Texas Commission for the Deaf and
Hard of Hearing;
[(9)
Texas Department of Mental Health
and Mental Retardation; and]
[(10)
a local authority.]
(g)
When used to assist law enforcement in
the return of a court-committed client who is absent from a mental health
facility (as defined in the Texas Health and Safety Code, §571.003) or
a facility. The facility administrator may release to a law enforcement official
information about the client if the administrator determines that the information
is needed to facilitate the return of the client to the mental health facility
or the facility.
§414.10.Who Can Give Consent for Disclosure: Clients Receiving MHMR Services.
(a)
(No change.)
(b)
Minor clients.
(1)
If the client is a minor receiving mental retardation services,
then the client does not have the capacity to consent to disclosure of client-identifying
information. Only a parent, guardian of the person, managing conservator,
joint managing conservator,
or possessory conservator of the minor
client can authorize and consent to disclosure of client-identifying information
to any third party other than an attorney representing the client.
(2)
If the client is a minor under 16 years of age receiving
mental health services, then the client does not have the capacity to consent
to disclosure of client-identifying information. Only a parent, guardian of
the person, managing conservator,
joint managing conservator,
or
possessory conservator of the minor client can authorize and consent to disclosure
of client-identifying information to a third party other than an attorney
representing the client.
(3)
If the client is a competent minor at least 16 years
of age but under 18 years of age receiving voluntary mental health services,
then the client can unilaterally authorize and consent to disclosure of client-identifying
information. The parent, managing conservator,
joint managing conservator,
or possessory conservator of such a minor client also can unilaterally
authorize and consent to disclosure of client-identifying information.
(4)
If the client is a minor at least 16 years of age
but under 18 years of age receiving court-ordered mental health services,
then only a parent, guardian of the person, managing conservator,
joint
managing conservator,
or possessory conservator can authorize and consent
to disclosure of client-identifying information to a third party other than
an attorney ad litem representing the client.
(5)
A
joint managing conservator or
possessory
conservator has the right of access to medical, dental, and educational records
of a minor to the same extent as the managing conservator. However, before
releasing records to the [
possessory
] conservator, all references
in the records to the place of residence of the managing conservator must
be deleted.
(c)
(No change.)
§414.11.Who Can Give Consent for Disclosure: Clients Receiving Chemical Dependency Services.
(a)
(No change.)
(b)
Minor clients.
(1)-(2)
(No change.)
(3)
A
joint managing conservator or
possessory
conservator has the right of access to medical, dental, and educational records
of a minor to the same extent as the managing conservator. However, before
releasing records to the [
possessory
] conservator, all references
in the records to the place of residence of the managing conservator must
be deleted.
(c)
(No change.)
§414.16.References.
Reference is made to the following state and federal statutes and rules
of the department:
(1)
Texas Health and Safety Code, Chapters
166,
462, 574, 593, 595, 597, 611, and 614; §576.005; §595.005(c); §242.002(6);
and §614.017;
(2)
Texas Human Resources Code,
Chapter 48
[
§48.0385
];
(3)-(5)
(No change.)
(6)
Code of Criminal Procedure, Article 42.12, Section
9
, and 46.04
;
(7)-(9)
(No change.)
(10)
Texas Family Code, Chapter 264; [
and
]
(11)
Texas Rules of Civil Evidence, Rule 510(d)
;
and
(12)
Texas Insurance Code, Article 21.58A(o).
This agency hereby certifies that the proposal has been
reviewed by legal counsel and found to be within the agency's legal authority
to adopt.
Filed with the Office of
the Secretary of State, on January 21, 2000.
TRD-200000400
Charles Cooper
Chairman, Texas MHMR Board
Texas Department of Mental Health and Mental Retardation
Earliest possible date of adoption: March 5, 2000
For further information, please call: (512) 206-5216