Adopted Sections An agency may take final action on a section 30 days after a proposal has been published in the Texas Register. The section becomes effective 20 days after the agency files the correct document with the Texas Register, unless a later date is specified or unless a federal statute or regulation requires implementation of the action on shorter notice. If an agency adopts the section without any changes to the proposed text, only the preamble of the notice and statement of legal authority will be published. If an agency adopts the section with changes to the proposed text, the proposal will be republished with the changes. TITLE 25. HEALTH SERVICES Part II. Texas Department of Mental Health and Mental Retardation Chapter 401. System Administration Subchapter B. Interagency Agreements 25 TAC sec.401.53 The Texas Department of Mental Health and Mental Retardation (TXMHMR) adopts an amendment to sec.401.53, concerning the plan for newbed development in the Texas ICF/MR Program, without changes to the proposed text as published in the July 5, 1991, issue of Texas Register (16 TexReg 3760). The memorandum of understanding (MOU) that is adopted by reference as Exhibit J in the section is adopted with changes. The section and the MOU were adopted by the Texas Board of MHMR at its August meeting pending approval by the Interagency Council on ICF/MR Facilities (council). The board authorized the department's commissioner to accept or reject any revisions of the MOU recommended by the council. The council met on August 13, 1991, and approved the MOU with the following revisions and contingent on funding. Premise 11 has been added to the MOU directing that those beds reserved under the fiscal year (FY) 1991 plan but not yet licensed and certified are to be deducted from the 2,106 beds projected in the FY 1992-1993 plan. The remaining beds in the FY 1992-1993 plan will be redistributed using the current plan methodology. The chart showing the projected number of beds and the distribution by region and level of care is revised accordingly. A public hearing was held on July 10, 1991, at TXMHMR Central Office in Austin to accept public testimony concerning the proposed memorandum. Testimony was given by Texas Health Care Association (THCA) and by Educare Corp. Written comments concerning the memorandum were received from the Texas Department of Human Services (TDHS), Community Resources and Information for Special People (CRISP), and a private individual. Two commenters expressed concern with the continued vacancies on the council for representatives of consumer groups, private ICF/MR providers, and community MHMR centers. The department responds that the individuals who were filling those positions and whose terms had expired will be asked to continue serving until new appointments are made. One commenter suggested that the bed plan be used as a basis for expansion of the home community-based services (HCS) waiver. The department responds that this alternative will be considered in the overall consideration of expanding the Medicaid programs. A commenter questioned whether the funding is available for the FY 1992-1993 plan and for beds from the FY 1990 and FY 1991 which have yet to be certified. The department responds that although the plan predicts growth in the program which exceeds the TDHS legislative appropriations request, the department maintains that the plan developed must identify the need for services in the ICF/MR program. As not all beds will be certified and receiving funds on September 1, 1991, the TDHS request will accommodate the plan. Several commenters questioned why interested parties were not included earlier in the development of the plan. The department agrees that interested parties should be involved earlier in the development of the bed plan and that a process for doing so will be discussed and developed with those parties. Several commenters requested clarification of the methodology used in developing the plan. The department responds that the plan methodology will be revised to further clarify the processes of determining the projection of growth and the dispersion of beds by region and level of care. Several commenters requested a reallocation of beds in the central region. The department responds that it stands by the methodology used to allocate the beds by region. The amendment is adopted under Texas Civil Statutes, Article 5547-202, sec.2. 11, which provide the Texas Board of Mental Health and Mental Retardation with rulemaking powers. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on September 17, 1991. TRD-9111457 Ann Utley Chairman Texas Board of Mental Health and Mental Retardation Effective date: October 8, 1991 Proposal publication date: July 5, 1991 For further information, please call: (512) 465-4670 TITLE 37. PUBLIC SAFETY AND CORRECTIONS Part VI. Texas Department of Criminal Justice Chapter 152. General Allocation Rules Subchapter A. Institutional Division Admissions 37 TAC sec.152.3 The Texas Department of Criminal Justice adopts an amendment to sec.152.3, concerning the allocation among the counties of the number if Institutional Division admissions available, with changes to the proposed text as published in the June 11, 1991, issue of the Texas Register (16 TexReg 3179). The amendment adds new subsections (a)(7) and (b), and changes previous subsections (a)-(f). The purpose of the allocation formula is to equitably allocate available admissions at the Institutional Division, and to fairly apportion Community Corrections Program state aid to local probation departments in accordance with the Texas Code of Criminal Procedure, Article 42.13, sec.11(a)(3). Annual revision of the allocation formula is required by the Texas Government Code, sec.499.071(c) (as published in Chapter 16, Article 10, Subchapter D of the Sessions Laws of the 72nd Legislature). The adopted formula allocates to each county a prorata share of available Institutional Division admissions, and apportions Community Corrections Program state aid to local probation departments in conformity with the requirement of state law. The formula accords some weight to each of the factors which the board is required to consider under the provisions of the Texas Government Code, sec.499. 071, and further gives weight to three discretionary factors which reward "community effort" in reducing admissions to the Texas Department of Corrections. The amendments to prior regulations as presently adopted: incorporate a "parole release" factor which the board is required to consider under the Texas Government Code, Article 499.071(a) (promulgated in sec.11.01 of House Bill 93, passed during the second called session of the 72nd Legislature); and add an additional discretionary factor which rewards counties that successfully adopt strategies which increase the number of probation completions. These regulations were first published for comment in June 1991, for consideration at the July 1991 board meeting. Comments on the regulations as originally proposed were received at that board meeting. The board then deferred final adoption of a formula for the 1992 fiscal year because they were aware that there might be legislative revisions to the allocation formula in the special legislative session then in progress. The comments from representatives from Dallas, Nueces, and Tarrant counties at the July 1991 board meeting expressed approval for continuing the prior allocation formula as proposed by staff in the June 11 1991 publication of the Texas Register. The representative from Harris County requested that the allocation formula be amended to increase the bed space allocation to Harris County. He further requested the addition of a "parole factor" to increase the Harris County allocation. House Bill 93, as passed during the special session, required the board to add an additional factor reflecting the numbers of persons paroled to each county. Immediately after the passage of that legislation, departmental staff gathered data on the new factors and prepared computer runs reflecting four new possible allocation formula scenarios, and distributed two of those allocation scenarios by mail to all county sheriffs, with a request for comments at the September 13, 1991, board meeting. Additional responses to the second request for comments were presented at the September board meeting. Nueces County requested that the board adopt a formula including the factors previously included in the allocation formula, plus the additional factor required by the legislature. Harris County made two requests: that the board increase the number of annual admissions; and that the board adopt its regulations on an interim basis only, with future consideration to allocation of beds "on the basis of an offender's risk to society, or the degree of his or her 'dangerousness.'" In open meeting on September 13, 1991, the board discussed the relative merits of the scenarios proposed by staff and the comments submitted. Staff noted that the board could in the future re-amend the allocation formula to provide for new admissions as additional beds come on line. The policy questions raised by the board's motions to amend the formula were whether the formula to be adopted should contain the eight factors included in the prior allocation formula, plus the one new parole release factor mandated by House Bill 93; or whether the formula should also add a 10th factor which would reward counties that have a high rate of probation completions. The policy arguments favoring the addition of a 10th factor for "probation completions" were that the award of Community Justice assistance funds and institutional bed space should give weight to community efforts in reducing overall institutional division admissions. The amendment is adopted under the Texas Government Code, Article 499.071 and the Texas Code of Criminal Procedure, Article 42.13, sec.11, which provide the board of the Texas Department of Criminal Justice with the authority to adopt rules relating to the allocation of prison admissions, and the authority to use additional factors in the formula calculation. sec.152.3. Allocation Formula. (a) In creating the allocation formula, the board is required to consider and weigh each of the following factors: (1) the percentage of prison admissions for the entire state that were allocated to the county in the preceding 12 months; (2) the percentage of the state's violent index crime that occurred in the county in the preceding 12 months'; (3) the percentage of the state's total index crime that occurred in the county in the preceding 12 months; (4) the percentage of the state's total arrests under the Texas Controlled Substances Act, Chapter 481, Health and Safety Code, that occurred in the county or counties in the preceding 12 months; (5) the percentage of the state's population residing in the county or counties; (6) the percentage of the state's total unemployment in the county or counties; and (7) the percentage of all defendants serving sentences for felonies who were paroled from the institutional division, a jail in this state, or a jail or correctional institutional in another state in the preceding 12 months and who were released to reside in the county or counties. (b) The board has discretion to add other factors which are not mandated by the legislature. In the exercise of that discretion, the board adds the following factors reflecting community effort: (1) the county's percentage of the state's total number of persons placed on probation during the preceding calendar year, as determined by the Criminal Justice Division of the Texas Department of Corrections. "Probation placements" are defined as including felons placed on regular probation, and felons placed in a special program, either through direct sentencing by the court, persons given shock probation; (2) the county's percentage of the state's total number of persons completing probation during the preceding calendar year (as determined by the Community Justice Assistance Division) whose probations were terminated either through early discharge or the expiration of the full-term of probation; (3) the county's percentage of the state's total funds expended by counties for juvenile probation services in the most recently audited county fiscal year, as determined by the Texas Juvenile Probation Commission staff. (c) The board assigns the following weight to each statutory and discretionary factor: [graphic] (d) These weighted statutory factors and the community effort factors shall be applied to available institutional division admissions to determine, employing normal rounding practices and allowing for holidays in the 12-month period, the number of admissions available to each county. (e) The institutional division may establish a minimum level of admissions, based on the timing of admissions transportation cycles, for counties that would otherwise fail to receive a meaningful number of admissions, as determined by the institutional division. (f) Based upon an estimated 36,105 available institutional divisions admissions annually, this formula produces the following number of new prisoner admissions which the institutional division would accept weekly/cyclically from each county, and the percentage of total admissions that each number represents: insert pg 2 insert pg 4 [graphic] This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on September 17, 1991. TRD-9111492 Jackee Cox General Counsel Texas Department of Criminal Justice Effective date: November 1, 1991 Proposal publication date: June 11, 1991 For further information, please call: (512) 463-9988