25 TAC §§411.301 - 411.316
The Texas Department of Mental Health and Mental Retardation
(TDMHMR) proposes new §§411.301 - 411.316 of new Chapter 411, Subchapter
G, concerning community MHMR centers. The repeals of §§401.441 -
401.456 of Chapter 401, Subchapter G, concerning community mental health and
mental retardation centers, which the new sections would replace, are contemporaneously
proposed in this issue of the
Texas Register
.
The proposed new rules are substantially the same as the rules they replace
except in the following ways: The proposed new rules would establish review
and audit procedures that would provide reasonable assurance a community center
has adequate and appropriate fiscal controls as required by the Texas Health
and Safety Code, §534.035 (amended by the 76th Legislature, SB 452).
The audit procedures would include the current requirement for centers to
submit copies of an annual audit of the center's accounts as well as an additional
requirement for TDMHMR to conduct on-site audits of a center as it deems necessary.
The review procedures would include conducting a desk review of centers' annual
audits and performing financial risk assessments based on centers' annual
audit and/or any additional financial information that a center may be required
to submit. Language would be added to §411.310 requiring boards of trustees
to assure TDMHMR unrestricted access to their centers' records, data, and
other information to enable TDMHMR to audit, monitor, and review their centers'
financial and programmatic activities and services as required by the rules'
audit procedures and the Texas Health and Safety Code, §534.033 and §§534.035
- 534.037. The proposed new rules would also replace language relating to
appointment of a manager or management team with the statutory reference while
continuing to include the process for a community center to appeal the commissioner's
decision to appoint a manager or management team to manage and operate the
center. Language would be added to the "Charter To Be a Community Center"
(Exhibit A) requiring centers to include in their plans their intention to
create or operate a non-profit corporation as allowed by the Texas Health
and Safety Code, Chapter 534, Subchapter C. The new rules would also fulfill
the requirements of the Texas Government Code, §2001.39, concerning the
periodic review of agency rules.
Bill Campbell, chief financial officer, has determined that for each year
of the first five years the proposed new rules are in effect, enforcing or
administering the rules does not have foreseeable significant implications
relating to cost or revenue of the state or local governments.
Gerry McKimmey, assistant commissioner, has determined that, for each year
of the first five years the proposed new rules are in effect, the public benefits
expected are the promulgation of rules that fulfill the requirement of state
statute, specifically the Texas Health and Safety Code, §534.001(e),
that specify the elements to be included in a community center's plan and
prescribes the procedure for submitting, approving, and modifying a center's
plan; that allow a community center to appeal the department's intent to disapprove
the center's plan or the commissioner's decision to appoint a manager or management
team to manage and operate the center; and that prescribe review and audit
procedures which will provide reasonable assurance a community center has
adequate and appropriate fiscal controls. It is anticipated that there would
be no additional economic cost to persons required to comply with the proposed
rules.
It is anticipated that the proposed new rules will not affect a local economy.
It is anticipated that the proposed new rules will not have an adverse
economic effect on small businesses or micro-businesses because they do not
place requirements on 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.
These sections are proposed under the Texas Health and Safety
Code, §532.015, which provides the Texas Mental Health and Mental Retardation
Board (board) with broad rulemaking authority; §534.001(e), which requires
the board to adopt rules specifying the elements that must be included in
a community center's plan, and prescribing the procedure for submitting, approving,
and modifying a center's plan; §534.006(a), which requires the board
to adopt rules establishing an annual training program for members of boards
of trustees; §534.021(a), which requires the board to adopt rules describing
the approval and notification process relating to the acquisition of real
property by a community center; §534.035(a), which requires the adoption
of rules establishing review and audit procedures that provide reasonable
assurance a community center has adequate and appropriate fiscal controls;
and §534.038(d), which requires the board to adopt rules prescribing
the process for a community center to appeal the commissioner's decision to
appoint a manager or management team to manage and operate the center.
These sections would affect the Texas Health and Safety Code, §534.001(e), §534.006(a), §534.035(a),
and §534.038(d).
§411.301.Purpose.
The purpose of this subchapter is to describe requirements by which
community mental health and mental retardation centers are established and
operated by a local agency with a plan approved by the Texas Mental Health
and Mental Retardation Board in accordance with the Texas Health and Safety
Code, §534.001(e).
§411.302.Application.
This subchapter applies to local agencies desiring to establish a new
community mental health and mental retardation center or affiliate with an
existing center and to all existing community mental health and mental retardation
centers established under the Texas Health and Safety Code, Title 7, Chapter
534.
§411.303.Definitions.
The following words and terms, when used in this subchapter, have the
following meanings, unless the context clearly indicates otherwise:
(1)
Board of trustees - A body of not less than five nor more
than nine persons selected and appointed in accordance with Texas Health and
Safety Code, Title 7, §534.002 or §534.003, and §534.004, §534.005,
and §534.0065, which has responsibility for the effective administration
of a community center.
(2)
Commissioner - The commissioner of the Texas Department
of Mental Health and Mental Retardation.
(3)
Community center - A center established under the
Texas Health and Safety Code, Title 7, Chapter 534, Subchapter A.
(4)
Current plan - The most recently approved initial,
updated, or modified plan.
(5)
Department - The Texas Department of Mental Health
and Mental Retardation (TDMHMR).
(6)
Facility - Any state hospital, state school, or state
center.
(7)
Initial plan - The plan developed by a board of trustees
to establish a new community center.
(8)
Local agency - A county, municipality, hospital district,
school district, or any organizational combination of two or more of these
which may establish and operate a community center.
(9)
Local contribution - Funds or in-kind contribution
by each local agency to a community center in the amount approved by the department,
which includes local match if the center is a local authority.
(10)
Local authority - An entity to which the Texas Mental
Health and Mental Retardation Board delegates its authority and responsibility
within a specified region for the planning, policy development, coordination,
resource development and allocation, and for supervising and ensuring the
provision of mental health services to persons with mental illness and/or
mental retardation services to persons with mental retardation in one or more
local service areas.
(11)
Local match - In accordance with the Texas Health
and Safety Code, §534.066, those funds or in-kind support from a local
authority that are required to match some or all of the state funds the local
authority receives pursuant to a contract with the department.
(12)
Local service area - A geographic area composed of
one or more Texas counties delimiting the population which may receive services
from a local authority.
(13)
Mental health services - All services concerned with
research, prevention, and detection of mental disorders and disabilities and
all services necessary to treat, care for, supervise, and rehabilitate persons
with a severe and persistent mental illness which may be accompanied by chemical
dependency or mental retardation.
(14)
Mental retardation services - All services concerned
with research, prevention, and detection of mental retardation and all services
related to the education, training, habilitation, care, treatment, and supervision
of persons with mental retardation, except the education of school-age persons
that the public educational system is authorized to provide.
(15)
Region - The area within the boundaries of the local
agencies participating in the operation of a community center established
under the Texas Health and Safety Code, Chapter 534, Subchapter A.
(16)
State-operated community services (SOCS) - Community
residential and nonresidential programs operated by the Texas Department of
Mental Health and Mental Retardation.
§411.304.Philosophy.
(a)
To realize the purpose and policy for community centers
in Texas as described in the Texas Health and Safety Code, §534.0015,
the provisions of this subchapter are intended to promote an effective relationship
between state and local government in the form of local boards of trustees
of community centers; these provisions recognize the importance of local initiatives
and control in the development and expansion of community services.
(b)
The advantage for a local agency in forming a new community
center or affiliating with an existing community center is the greater degree
of local ownership and control of the services provided. The department recognizes
the importance of local control vested in a community center. Therefore, the
department encourages and supports the affiliation of local agencies with
community centers. The following principles are important in the development
of local services.
(1)
Persons receiving services, as well as their families and
friends, should have a prominent role in determining which services best meet
their needs.
(2)
Persons with mental illness or mental retardation
should have the opportunity for integration into the activities and social
fabric of the local community.
(3)
Decisions by the board of trustees of a community
center should be made openly with consideration of the view of those affected
by its decisions.
(4)
Local communities, persons receiving services and
their families, community centers, and other service providers should work
together to identify service delivery needs and plan a system that meets these
needs.
(5)
Mental health and mental retardation services are
of the best value for the public funds expended.
§411.305.Process to Establish a New Community Center.
(a)
Letter of intent. If a local agency decides to establish
a new community center, then the local agency submits a letter of intent to
the commissioner outlining the proposed new center's region, governing structure,
and other information pertinent to the formation of the proposed new center.
(1)
If the local agency submitting the letter of intent is
not a county or counties, the letter must be accompanied by a letter of endorsement
from the appropriate county judge or judges.
(2)
The commissioner designates staff who are knowledgeable
of community center operations to review the letter of intent using the following
criteria:
(A)
the rationale clearly supports the benefits of establishing
a new center over affiliation with an existing center and the establishment
of a new center is consistent with the department's mission for the development
of community services in Texas;
(B)
the population of the region of the proposed new center
is at least 200,000 or large enough to support a center;
(C)
comprehensive array of mental health and mental retardation
services will be provided;
(D)
the extent of the local contribution supports the intent;
and
(E)
providing services efficiently is financially viable.
(3)
The commissioner's response to the local agency's
letter of intent is based on the review described in paragraph (2) of this
subsection and is sent to the local agency by certified mail, return receipt
requested.
(A)
If the commissioner approves the letter of intent, the
response includes notification of such approval.
(B)
If the commissioner does not approve the letter of intent,
the response includes the reasons for disapproval.
(b)
Appointment of board of trustees. If the local agency receives
approval of its letter of intent, then it prescribes the criteria and procedures
for the appointment of members of a board of trustees as described in the
Texas Health and Safety Code, §534.002 or §534.003, and §534.004, §534.005,
and §534.0065. The local agency prescribes and makes available for public
review the elements listed in the Texas Health and Safety Code, §534.004(a).
If more than one agency is involved, the local agencies shall enter into a
contract of interlocal agreement that stipulates the number of board members
and the group from which the members are chosen, as provided in the Texas
Health and Safety Code, §534.003(c). The local agencies may renegotiate
or amend the contract of interlocal agreement as necessary to change the:
(1)
method of choosing the board of trustees members; or
(2)
membership of the board of trustees to more accurately
reflect the ethnic and geographical diversity of the region's population.
(c)
Initial plan.
(1)
Submission. The board of trustees develops and submits
to the commissioner an initial written plan to provide effective mental health
and mental retardation services to the residents of the proposed region. The
board of trustees shall appoint a mental health planning advisory council
and a mental retardation planning advisory council, each with at least 50%
representation of persons who have received or are receiving services or their
family members, to assist in developing the initial plan. The board of trustees
shall also seek input through a public process (e.g., public hearings, focus
groups, town meetings) from the citizens in the proposed region regarding
local needs and priorities. The initial plan must include the following elements:
(A)
a comprehensive service description, which includes:
(i)
a statement of the mission, vision, values, and principles
which provide the foundation of the proposed community center's local service
delivery system;
(ii)
a definition of all populations to be served;
(iii)
a description of relevant internal and external assessments
and evaluations which may provide direction for the local strategic planning
process;
(iv)
a statement of local service needs and priorities to be
addressed through a combination of resource development, expansion, reduction,
and termination with the local service delivery system with the rationales
for these selections;
(v)
a summary of needs assessment data and processes used in
the determination of local service needs and priorities;
(vi)
identified gaps in services and supports in the local
service delivery system which may assist in the determination of local service
needs and priorities;
(vii)
a description of existing local mental health and mental
retardation resources and planned resource development activities;
(viii)
a statement regarding innovative services considered
and how these affect the local strategic planning process;
(ix)
a statement of management needs and priorities to support
an effective and efficient local service delivery system; and
(x)
plan objectives, strategies, and outcomes.
(B)
a charter in the format shown in "Charter To Be a Community
MHMR Center," referenced as Exhibit A of §411.314 of this title (relating
to Exhibits).
(C)
a prospectus, which describes:
(i)
any proposed transfer of funds, assets, liabilities, personnel,
and consumer and administrative records/information from state-operated community
services (SOCS) or other community centers and the time frames for transfer;
(ii)
any identified additional available funds;
(iii)
the arrangements for uninterrupted delivery of services;
and
(iv)
the impact, and resolution if warranted, of current contractual
obligations.
(2)
Review. The commissioner designates staff
who are knowledgeable of community center operations to review the initial
plan. The designated staff may verify the information contained in the initial
plan. If additional information or changes are required for the commissioner
to recommend approval, then the commissioner will notify in writing the board
of trustees and specify requirements for resubmission, including time frames.
(3)
Notification of intended recommendation. The department
notifies the board of trustees of the commissioner's intention to recommend
approval or disapproval of the initial plan to the Texas MHMR Board. If the
commissioner intends to recommend disapproval or partial disapproval, then:
(A)
the board of trustees may request an administrative hearing
"proposal for decision" in accordance with §§411.153 - 411.158 of
Chapter 411, Subchapter D of this title (relating to Administrative Hearings
of the Department in Contested Cases). The hearing is not a hearing of a contested
case under the Administrative Procedures Act and is limited to issues related
to the initial plan. After all evidence has been heard, the administrative
law judge closes the hearing. Within 30 days from the date the hearing closed,
the administrative law judge submits a written proposal for decision to the
commissioner;
(B)
the commissioner will accept the administrative law judge's
recommendation in the proposal for decision unless the commissioner finds
that the recommendation is not supported by substantial evidence; and
(C)
the department notifies the board of trustees of the commissioner's
decision to recommend approval or disapproval of the initial plan to the Texas
MHMR Board. If disapproval will be recommended, then no other appeal process
is available.
(4)
Approval or disapproval. The commissioner recommends
approval or disapproval of the initial plan to the Texas MHMR Board. The commissioner
may recommend approval of portions of the initial plan and disapproval of
other portions. The commissioner's recommendation shall include a written
assessment of the initial plan by staff. A recommendation of approval requires
that the assessment confirms that the initial plan properly fulfills the requirements
of paragraph (1) of this subsection to provide a comprehensive array of mental
health and mental retardation services, including screening and continuing
care services for persons entering or leaving department facilities.
(A)
If the Texas MHMR Board approves the initial plan in its
entirety, then the department issues a certificate of recognition as a community
center.
(B)
If the Texas MHMR Board approves portions of the initial
plan and such approved portions properly fulfill the requirements of paragraph
(1) of this subsection, then it instructs the official record to reflect such
portions as the approved initial plan in its entirety and the department issues
a certificate of recognition as a community center.
(C)
If the Texas MHMR Board does not approve the initial plan,
then the department provides written notification to the board of trustees
in a timely manner of the reasons for disapproval and the requirements for
resubmission, including time frames.
(5)
Community center operations. A community center
may perform and operate only for the purposes and functions defined in its
current plan.
§411.306.Updating a Community Center's Current Plan.
(a)
Submission. On an assigned three-year cycle, or as requested
by the Texas MHMR Board, or as necessary, the board of trustees of a community
center shall submit to the commissioner an update of its current plan, which
reflects the center's purposes and functions. The updated plan shall be in
the format shown in "Charter To Be a Community MHMR Center," referenced as
Exhibit A of §411.314 of this title (relating to Exhibits).
(b)
Review. The commissioner designates staff who are knowledgeable
of community center operations to review the updated plan. The designated
staff may verify the information contained in the updated plan. If additional
information or changes are required for the commissioner to recommend approval,
then the commissioner will notify in writing the board of trustees and specify
requirements for resubmission, including time frames.
(c)
Notification of intended recommendation. The department
notifies the board of trustees of the commissioner's intention to recommend
approval or disapproval of the updated plan to the Texas MHMR Board. If the
commissioner intends to recommend disapproval or partial disapproval, then:
(1)
the board of trustees may request an administrative hearing
"proposal for decision" in accordance with §§411.153 - 411.158 of
Chapter 411, Subchapter D of this title (relating to Administrative Hearings
of the Department in Contested Cases). The hearing is not a hearing of a contested
case under the Administrative Procedures Act and is limited to issues related
to the updated plan. After all evidence has been heard, the administrative
law judge closes the hearing. Within 30 days from the date the hearing closed,
the administrative law judge submits a written proposal for decision to the
commissioner;
(2)
the commissioner will accept the administrative law
judge's recommendation in the proposal for decision unless the commissioner
finds that the recommendation is not supported by substantial evidence; and
(3)
the department notifies the board of trustees of the
commissioner's decision to recommend approval or disapproval of the updated
plan to the Texas MHMR Board. If disapproval will be recommended, then no
other appeal process is available.
(d)
Approval or disapproval. The commissioner recommends approval
or disapproval of the updated plan to the Texas MHMR Board. The commissioner
may recommend approval of portions of the updated plan and disapproval of
other portions. The commissioner's recommendation shall include a written
assessment of the updated plan by staff. A recommendation of approval requires
that the assessment confirm that the updated plan properly fulfills the requirements
contained in "Charter To Be a Community MHMR Center," referenced as Exhibit
A of §411.314 of this title (relating to Exhibits), to provide a comprehensive
array of mental health and mental retardation services, including screening
and continuing care services for persons entering or leaving department facilities.
(1)
If the Texas MHMR Board approves the updated plan in its
entirety, then the department issues an updated a certificate of recognition
as a community center.
(2)
If the Texas MHMR Board approves portions of the updated
plan and such approved portions properly fulfill the requirements contained
in "Charter To Be a Community MHMR Center," referenced as Exhibit A of §411.314
of this title (relating to Exhibits), then it instructs the official record
to reflect such portions as the approved updated plan in its entirety and
the department issues an updated certificate of recognition as a community
center.
(3)
If the Texas MHMR Board does not approve the updated
plan, then the department provides written notification to the board of trustees
in a timely manner of the reasons for disapproval and the requirements for
resubmission, if any, including time frames and the functions the community
center may perform pending approval. If the Texas MHMR Board does not provide
requirements for resubmission then the department no longer recognizes the
entity as a community center.
(e)
Community center operations. A community center may perform
and operate only for the purposes and functions defined in its current plan
or as provided for in subsection (d)(3) of this section.
§411.307.Modifying a Community Center's Current Plan.
(a)
Submission. Within the assigned three-year cycle for updating
its current plan as described in §411.306 of this title (relating to
Updating a Community Center's Current Plan), the board of trustees of a community
center shall submit a modification of its current plan in accordance with
this section as frequently as necessary to reflect material changes in the
community center's local agencies, functions, or region. The modified plan
shall be in the format shown in "Charter To Be a Community MHMR Center," referenced
as Exhibit A of §411.314 of this title (relating to Exhibits).
(1)
If a local agency wants to affiliate with an existing community
center and the existing center agrees, then the board of trustees of the existing
center will submit to the commissioner for approval a modification of the
center's current plan to reflect such affiliation, including:
(A)
any proposed expansion of the center's region;
(B)
a copy of the new contract of interlocal agreement; and
(C)
official documentation (e.g., resolution) confirming such
intent to affiliate from each present local agency and the proposed affiliated
local agency.
(2)
If a local agency wants to terminate its organizational
combination with another local agency and end its affiliation with an existing
community center, then the appointing authorities of the local agencies must
terminate the original contract of interlocal agreement and enter into a new
contract of interlocal agreement if more than one local agency remains. The
board of trustees of the existing center submits a modification of the center's
current plan to reflect the termination of such affiliation to the commissioner
for approval, including:
(A)
any change of the center's region;
(B)
a copy of the new contract of interlocal agreement, if
applicable; and
(C)
official documentation (e.g., resolution) from the local
agency confirming its intent to terminate affiliation with the center.
(3)
If an existing community center wants to expand
or reduce its functions or region, or otherwise substantially amend its functions,
(e.g., changing the population served, the services provided, or its name;
or creating or operating a non-profit corporation), then the board of trustees
of the center submits a modification of the center's current plan to reflect
such changes to the commissioner for approval.
(b)
Review. The commissioner designates staff who are knowledgeable
of community center operations to review the modified plan. The designated
staff may verify the information contained in the modified plan. If additional
information or changes are required for staff to recommend approval, then
staff will notify in writing the board of trustees and specify requirements
for resubmission, including time frames.
(c)
Approval or disapproval. Staff recommends approval or disapproval
of the modified plan to the commissioner. Staff may recommend approval of
portions of the modified plan and disapproval of other portions. Staff may
also recommend that the modified plan be submitted as an updated plan for
approval by the Texas MHMR Board.
(1)
If the commissioner approves the modified plan, then the
department notifies the board of trustees in writing of the approval in a
timely manner.
(2)
If the commissioner approves portions of the modified
plan then the commissioner instructs the official record to reflect such portions
as the approved modified plan. The department shall notify the board of trustees
in writing of the portions included in the approved modified plan in a timely
manner.
(3)
If the commissioner does not approve the modified
plan, then the department provides written notification to the board of trustees
in a timely manner of the reasons for disapproval and the requirements for
resubmission, if any, including time frames. The requirement for resubmission
may be submission as an updated plan for approval by the Texas MHMR Board.
(d)
Community center operations. A community center may perform
and operate only for the purposes and functions defined in its current plan.
§411.308.Dissolution or Merger of Community Centers.
(a)
Dissolution. If a community center decides to cease operations
and dissolve, the center's board of trustees and each local agency shall inform
the commissioner in writing of such a decision. The department, the board
of trustees, and each local agency shall agree to a plan of dissolution that
addresses at least the following factors:
(1)
the center's assets and liabilities (including personnel);
(2)
necessary audits to be conducted;
(3)
closure activities, including arrangements for uninterrupted
delivery of services;
(4)
the transfer, archival, and security of records and
information; and
(5)
the future plans for the region's service delivery
system (e.g., affiliation with an existing center, establishment of a new
center, reliance upon a state-operated community services (SOCS)).
(b)
Merger. If two or more existing community centers agree
to merge into a new community center, then the boards of trustees of the involved
centers submit to the commissioner an initial plan in accordance with §411.305(c)
of this title (relating to Process to Establish a New Community Center). The
initial plan must represent the services to be provided in the combined expanded
region and include a copy of the new contract of interlocal agreement and
official documentation (e.g., resolution) confirming intent to merge from
each local agency involved.
§411.309.Appointment of Manager or Management Team.
(a)
The commissioner may appoint a manager or management team
to manage and operate a community center in accordance with the Texas Health
and Safety Code, §534.038, §534.039, and §534.040.
(b)
A community center may appeal the commissioner's decision
to appoint a manager or management team in accordance with this subsection.
The filing of a notice of appeal stays the appointment unless the commissioner
based the appointment on a finding under §534.038(a)(1)(D) of the Texas
Health and Safety Code, (i.e., the commissioner finds that the community center
or an officer or employee of the center endangers or may endanger the life,
health, or safety of a person served by the center).
(1)
The community center may appeal the appointment of a manager
or management team by filing a notice of appeal requesting an administrative
hearing "proposal for decision" in accordance with §§411.153 - 411.158
of Chapter 411, Subchapter D of this title (relating to Administrative Hearings
of the Department in Contested Cases). The hearing is not a hearing of a contested
case under the Administrative Procedures Act and is limited to issues related
to the finding(s) under §534.038(a) of the Texas Health and Safety Code
for which the manager or management team was appointed. After all evidence
has been heard, the administrative law judge will close the hearing. Within
30 days from the date the hearing closed, the administrative law judge will
submit a written proposal for decision to the commissioner.
(2)
The commissioner will accept the administrative law
judge's recommendation in the proposal for decision unless the commissioner
finds that the recommendation is not supported by substantial evidence.
(3)
The department will notify the community center of
the commissioner's decision to uphold or reverse the original decision to
appoint a manager or management team. If the decision is to uphold the original
decision, then no other appeal process is available.
§411.310.Standards of Administration for Boards of Trustees.
(a)
Each board of trustees is accountable to the department,
pursuant to the Texas Health and Safety Code, §534.033, for its programs
that:
(1)
use department funds or local match;
(2)
provide core or required services;
(3)
provide services to former consumers of a department
facility; or
(4)
are affected by litigation in which the department
is a defendant.
(b)
Each board of trustees is responsible for:
(1)
assuring the submission of periodic financial information
and performance reports to the department if required by the department;
(2)
instituting effective management procedures which
assure the maximum utilization of all funds and facilitates the achievement
of the goal of delivering services of high quality in a cost effective manner;
(3)
complying with the Texas Health and Safety Code, §534.022,
when financing property and improvements;
(4)
retaining all financial records, supporting documents,
statistical records, and any other documents pertinent to its community center
budgets, contracts, performance/workload measure, and persons served for a
period of five years. If audit discrepancies have not been resolved at the
end of five years, the records must be retained until resolution;
(5)
complying with the Open Meetings Act, Texas Government
Code, Chapter 551;
(6)
requiring depositories of community center funds to
secure deposits through the Federal Deposit Insurance Corporation or the Federal
Savings and Loan Insurance Corporation, or to secure deposits using collateral
in a manner that protects the deposited funds;
(7)
submitting a copy of the approved minutes of board
of trustees meetings to the department and to each local agency in accordance
with the Texas Health and Safety Code, §534.009(d);
(8)
ensuring community center staff abide by applicable
laws, department rules, and standards; and
(9)
assuring the department has unrestricted access to
all facilities, records, data, and other information under control of the
community center or its contractors as necessary to enable the department
to audit, monitor, and review all financial and programmatic activities and
services associated with the center's:
(A)
use of department funds or local match;
(B)
provision of core or required services;
(C)
provision of services to former consumers of a department
facility;
(D)
programs that are affected by litigation in which the department
is a defendant; or
(E)
fiscal controls.
(c)
Each board of trustees is accountable to the department
and to each local agency for receiving appropriate training as required by
the Texas Health and Safety Code, §534.006, and this subsection.
(1)
Before assuming office, new members must receive initial
training, including, but not limited to:
(A)
the importance of local planning and the roles and functions
of the board of trustees, planning advisory committees, community center staff,
and other service organizations;
(B)
the enabling legislation that created the community center;
(C)
the current philosophies and program principles on which
service delivery systems are founded, information about the service and support
needs of people with mental illnesses, mental retardation, and related conditions,
and the range of environments in which those services may be delivered;
(D)
an overview of mental illnesses, mental retardation, and
related conditions;
(E)
an overview of the current local and state service delivery
system, including descriptions of the types of mental health and mental retardation
services provided by the community center;
(F)
the community center's budget for the current program year;
(G)
the results of the most recent formal audit of the community
center;
(H)
the requirements of the Open Meetings Act, Texas Government
Code, Chapter 551, and the Open Records Act, Texas Government Code, Chapter
552;
(I)
the requirements of laws concerning conflict of interest
and other laws relating to public officials;
(J)
any ethics policies adopted by the community center; and
(K)
applicable state and federal laws, rules, standards, and
regulations.
(2)
Utilizing input from persons who have received
or are receiving services, their family members, and advocates, the training
programs must provide orientation in the perspectives and issues of persons
receiving services.
(3)
Annual training must be provided for current board
of trustees members, which is administered by the professional staff of the
community center, including the center's legal counsel.
(4)
Guidelines for training are developed and updated
as necessary by an advisory committee for the department, which includes representatives
of advocacy organizations broadly representative of the interests of persons
with mental illness or mental retardation and their families, and representatives
of boards of trustees. The current guidelines are referenced as Exhibit B
in §411.314 of this title (relating to Exhibits).
(d)
Each board of trustees may accept special funds for long-range
projects and plans. These funds must be kept separate from the community center's
operating budget and may not be used as local match. An annual accounting
of these reserve funds (center trust, endowment, or foundation resources)
must be made to the department
(e)
Each board of trustees must obtain department approval
for any building alterations, renovation, or repair maintenance expenses exceeding
$50,000 for each project per fiscal year per community center if department
funds or local match are to be used. In accordance with the review process
and to avoid undue delays, a board of trustees must seek advance written approval
from the department at least 30 days prior to the release of the project for
competitive bids.
(f)
Each board of trustees must ensure that its community center
receives written approval from the department prior to purchase, lease-purchase,
or any other transaction which will result in the community center's ownership
of real property, including buildings, if any department funds or local match
are involved. In addition, for acquisition of nonresidential property, the
community center must notify each local agency not later than the 31st day
before it enters into a binding obligation to acquire the property. A community
center must provide written notification to the department and each local
agency not later than the 31st day before it enters into a binding obligation
to acquire real property, including a building, if the acquisition does not
involve the use of department funds or local match. Upon request, the commissioner
may waive the 30-day requirement to notify the department on a case-by-case
basis. Notification of the department is not required for donations of real
or personal property under the Texas Health and Safety Code, Title 7, §534.018
or §534.019, that do not require the expenditure of any funds by the
community center and that have been approved by the board of trustees.
(1)
All notices and requests for approval are submitted on
the TXMHMR Property Review Form and accompanied by supporting information
including, but not necessarily limited to:
(A)
the reason for purchasing the property or a brief explanation
of the purpose it will serve;
(B)
a summary of the plan for paying for the property, including
a statement regarding whether department funds or local match will be used
either directly or in the retirement of any debt associated with the acquisition;
(C)
if unimproved, an assessment of the suitability of the
property for construction purposes or, if improved, an assessment of the current
condition of the buildings;
(D)
an independent appraisal of the real estate the community
center intends to purchase conducted by an appraiser certified by the Texas
Appraiser Licensing and Certification Board; however, the board of trustees
may waive this requirement if the purchase price is less than the value listed
for the property by the local appraisal district and the property has been
appraised by the local appraisal district within the past two years;
(E)
a statement that the board of trustees and executive staff
are not participating financially in the transaction and will derive no personal
benefit from the transaction; and
(F)
a statement detailing the need to waive the 30-day requirement
if a waiver is being requested.
(2)
A community center may not purchase or lease-purchase
property for an amount that is greater than the property's appraised value
unless;
(A)
the purchase or lease-purchase of that property at that
price is necessary;
(B)
the board of trustees documents in the official minutes
the reasons why the purchase or lease-purchase is necessary at that price;
and
(C)
a majority of the board approves the transaction.
§411.311.Civil Rights.
Each community center shall provide services in compliance with the
Civil Rights Act of 1964, as amended, and the Americans With Disabilities
Act (ADA) of 1990, and shall require the same of entities with which it contracts.
§411.312.Fiscal Controls.
Pursuant to the Texas Health and Safety Code, §534.035, each community
center must comply with the following review and audit procedures to provide
reasonable assurance that the community center has adequate and appropriate
fiscal controls.
(1)
Audit procedures.
(A)
Each board of trustees must ensure an annual financial
and compliance audit of its accounts is conducted by a certified public accountant
or public accountant licensed by the Texas State Board of Public Accountancy.
At a minimum, the audit must be conducted in accordance with Government Auditing
Standards. The board of trustees must submit eight copies of the audit to
the department no later than the first day of February. If the board of trustees
declines to approve the audit, it will attach to each copy of the audit a
statement detailing its reason for disapproving the audit.
(B)
The department may conduct on-site audits of a community
center as determined by the department's financial risk analysis of the center.
(2)
Review procedures.
(A)
The department will conduct a desk review of each community
center's annual audit to determine audit quality and to identify findings
and questioned costs.
(B)
The department will perform a financial risk analysis of
each community center based on the center's annual audit and/or any financial
information that the center is required to submit in accordance with §411.310(b)(1)
of this title (relating to Standards of Administration for Boards of Trustees).
§411.313.Determination of Salaries of Community Center Employees.
Pursuant to the Texas Health and Safety Code, Title 7, §534.011,
the board of trustees of a community center that does not have a contract
with the department must determine the salaries of its employees utilizing
only one of the methods described in paragraphs (1)-(3) of this section. The
method for determining salaries of community center employees described in
a contract between a community center and the department supersedes the requirements
in this section.
(1)
Market analysis. If the board of trustees chooses to determine
salaries and benefits with a market analysis, documentation must be maintained
on which studies are being used and the positions to which they pertain. Documentation
must be updated every two years. Records maintenance must include:
(A)
the current position documentation which describes the
actual work being performed in the positions; and
(B)
evidence of an approximate job match between the community
center position and the documentation obtained in the job market.
(2)
Internal study. If the board of trustees chooses
to determine salaries and benefits with an internal salary study, the pay
structure must be designed to recognize the internal relationships among jobs
of the center. The internal salary study must also take into consideration
market demands that permit the community center to compete with other employers
for available and desirable human resources. The internal salary study process
must include the:
(A)
current position documentation which describes the actual
work being performed in the positions;
(B)
a method of establishing the internal relationships of
jobs which may be either whole job ranking or point-factor job evaluation
methodologies;
(C)
identification of competitive markets that are appropriate
for various types of positions, such as:
(i)
state salaries;
(ii)
local government salaries;
(iii)
private sector salaries; and
(iv)
geographic considerations (i.e., local area, regional
or national issues);
(D)
compensation comparisons which include both cash compensation
and benefits to identify the community center's competitive posture in all
reward areas; and
(E)
proposed compensation adjustments which consider current
market competitive posture versus desired position and general wage increase
trends.
(3)
State Classification Plan. If the board of trustees
chooses to use the State Classification Plan to determine salaries, the community
center must:
(A)
compare current classification specifications with state
classification plan job specifications;
(B)
compare current salaries used with the salary schedule
in Article IX, of the current appropriations act. All Steps 01 through 08
may be used within pay groups. Amounts less than Step 01 may be authorized
by the board of trustees as well; and
(C)
select an appropriate classification to determine the compensation
for each position. If a similar position cannot be found in the State Classification
Plan, the board of trustees may utilize the previously described market analysis
or internal salary study to determine the compensation for the position. In
lieu of these two methods, a board of trustees may petition the commissioner
to exclude such a position, at a specific rate, from the State Classification
Plan by submitting:
(i)
a written proposal for an exemption for the position needed,
stating the salary;
(ii)
current position documentation which describes the actual
work being performed in the position; and
(iii)
a statement of the level of compensation sought.
§411.314.Exhibits.
The following exhibits referenced in this subchapter are available
by contacting TDMHMR, Policy Development, P.O. Box 12668, Austin, TX 78711-2668:
(1)
Exhibit A - "Charter To Be a Community MHMR Center".
Figure: 25 TAC §411.314(1)
(2)
Exhibit B - Guidelines for Board of Trustees Training.
§411.315.References.
Reference is made in this subchapter to the following federal and state
laws and rules:
(1)
Texas Health and Safety Code, Chapter 534, Subchapter A, §534.001, §534.0015, §§534.002
-534.006, §534.0065, §534.009; §534.011, §534.018, §534.019, §534.022, §534.033, §534.035, §§534.038
- 534.040, and §534.066;
(2)
Texas Government Code, Chapters 551 and 552;
(3)
Civil Rights Act of 1964;
(4)
Americans With Disabilities Act(ADA) of 1990; and
(5)
Chapter 411, Subchapter D of this title (relating
to Administrative Hearings of the Department in Contested Cases).
§411.316.Distribution.
This subchapter will be distributed to:
(1)
members of the Texas MHMR Board;
(2)
executive, management, and program staff of Central
Office;
(3)
chairpersons, boards of trustees, and executive directors
of community centers;
(4)
executive directors of state-operated community services
(SOCS); and
(5)
advocacy organizations.
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 February 11, 2000.
TRD-200001076
Charles Cooper
Chairman, Texas MHMR Board
Texas Department of Mental Health and Mental Retardation
Earliest possible date of adoption: March 26, 2000
For further information, please call: (512) 206-5216