PART 1. HEALTH AND HUMAN SERVICES COMMISSION
CHAPTER 307. BEHAVIORAL HEALTH PROGRAMS
SUBCHAPTER F. BEHAVIORAL HEALTH PARTNERSHIP PROGRAM
26 TAC §§307.251, 307.253, 307.255, 307.257, 307.259, 307.261, 307.263, 307.265, 307.267
The Executive Commissioner of the Texas Health and Human Services Commission (HHSC) proposes new Subchapter F, Behavioral Health Partnership Program in Texas Administrative Code, Chapter 307. New Subchapter F comprises §307.251, concerning Purpose; §307.253, concerning Application; §307.255, concerning Definitions; §307.257, concerning Behavioral Health Partnership Program Liaison Qualifications; §307.259, concerning Local Mental Health Authority or Local Behavioral Health Authority Responsibilities; §307.261, concerning Determining which Local Mental Health Authority or Local Behavioral Health Authority Employs a Behavioral Health Partnership Program Liaison; §307.263, concerning Responsibilities of a Behavioral Health Partnership Program Liaison; §307.265, concerning Texas Health and Human Services Commission Waiver Process; §307.267, concerning Texas Health and Human Services Commission Notification.
BACKGROUND AND PURPOSE
The purpose of the proposal is to implement Senate Bill 26, 88th Legislature, Regular Session, 2023, which amends Texas Education Code §8.151 and §8.152 to establish a process for local mental health authorities (LMHAs) or local behavioral health authorities (LBHAs) to submit a waiver request to HHSC to hire a licensed master social worker or licensed professional counselor (LPC) associate in lieu of a non-physician mental health professional (NPMHP) if the LMHA is unable to hire a NPMHP in its designated regional education service center (ESC). The proposal establishes the behavioral health partnership program (BHPP) as the program name and "behavioral health partnership program liaison" as the position title that includes an NPMHP or a person hired under the waiver process.
SECTION-BY-SECTION SUMMARY
Proposed new §307.251 describes the purpose of the subchapter, which is to implement the BHPP.
Proposed new §307.253 establishes new Subchapter F's applicability to LMHAs and LBHAs.
Proposed new §307.255 provides definitions for terminology used in the subchapter. Additionally, for purposes of this subchapter, a "non-physician mental health professional" as referenced under Texas Education Code §8.152 is included in the term "behavioral health partnership program liaison."
Proposed new §307.257 describes the BHPP liaison as a person who either meets the qualifications of an NPMHP or for whom the LMHA or LBHA submits a waiver request to HHSC.
Proposed new §307.259 describes LMHA and LBHA responsibilities to enter into a memorandum of understanding with the ESC addressing employment of a BHPP liaison; provide payment for costs for space and administrative costs; provide supervision of the BHPP liaison; provide reports to HHSC; and comply with parameters concerning how long an NPMHP waiver is effective.
Proposed new §307.261 establishes which LMHA or LBHA employs a BHPP liaison based on the LMHA or LBHA serving the majority of counties in which the ESC is located and requires the LMHA or LBHA to consult with the other LMHA or LBHA in the same region before making the final hiring decision.
Proposed new §307.263 establishes responsibilities of a BHPP liaison for carrying out the functions and duties required of an NPMHP in accordance with Texas Education Code §8.155.
Proposed new §307.265 describes the HHSC waiver process for an LMHA or LBHA to employ an LMSW or LPC associate to serve as the BHPP liaison.
Proposed new §307.267 describes HHSC's written notification regarding if an LMHA's or LBHA's waiver request is approved or the opportunity to remedy and resubmit the waiver request if it was denied.
FISCAL NOTE
Trey Wood, Chief Financial Officer, has determined that for each year of the first five years that the rules will be in effect, enforcing or administering the rules does not have foreseeable implications relating to costs or revenues of state or local governments.
GOVERNMENT GROWTH IMPACT STATEMENT
HHSC has determined that during the first five years that the rules will be in effect:
(1) the proposed rules will not create or eliminate a government program;
(2) implementation of the proposed rules will not affect the number of HHSC employee positions;
(3) implementation of the proposed rules will result in no assumed change in future legislative appropriations;
(4) the proposed rules will not affect fees paid to HHSC;
(5) the proposed rules will create new rules;
(6) the proposed rules will not expand, limit, or repeal existing rules;
(7) the proposed rules will not change the number of individuals subject to the rules; and
(8) the proposed rules will not affect the state's economy.
SMALL BUSINESS, MICRO-BUSINESS, AND RURAL COMMUNITY IMPACT ANALYSIS
Trey Wood has also determined that there will be no adverse economic effect on small businesses, micro-businesses, or rural communities because there is no requirement to alter current business practices.
LOCAL EMPLOYMENT IMPACT
The proposed rules will not affect local economy.
COSTS TO REGULATED PERSONS
Texas Government Code §2001.0045 does not apply to these rules because the rules are necessary to protect the health, safety, and welfare of the residents of Texas, do not impose a cost on regulated persons, and are necessary to implement legislation that does not specifically state that Section 2001.0045 applies to the rule.
PUBLIC BENEFIT AND COSTS
Sonja Gaines, Deputy Executive Commissioner of Behavioral Health Services, has determined that for each year of the first five years the rules are in effect, the public benefit will be to clarify provider expectations and broaden eligibility of NPMHPs through a waiver process to address workforce shortages and challenges in fulfilling statutory requirements for the safety and welfare of Texas residents.
Trey Wood has also determined that for the first five years the rules are in effect, there are no anticipated economic costs to persons who are required to comply with the proposed rules because there are no new fees or costs imposed on those required to comply. Funds are currently allocated for the relevant LMHAs/LBHAs to hire masters' level professionals as BHPP Liaisons for this program.
TAKINGS IMPACT ASSESSMENT
HHSC has determined that the proposal does not restrict or limit an owner's right to his or her property that would otherwise exist in the absence of government action and, therefore, does not constitute a taking under Texas Government Code §2007.043.
PUBLIC COMMENT
Written comments on the proposal may be submitted to Rules Coordination Office, P.O. Box 13247, Mail Code 4102, Austin, Texas 78711-3247, or street address 701 W. 51st Street, Austin, Texas 78751; or emailed to HHSRulesCoordinationOffice@hhs.texas.gov.
To be considered, comments must be submitted no later than 31 days after the date of this issue of the Texas Register. Comments must be (1) postmarked or shipped before the last day of the comment period; (2) hand-delivered before 5:00 p.m. on the last working day of the comment period; or (3) emailed before midnight on the last day of the comment period. If the last day to submit comments falls on a holiday, comments must be postmarked, shipped, or emailed before midnight on the following business day to be accepted. When emailing comments, please indicate "Comments on Proposed Rule 23R073" in the subject line.
STATUTORY AUTHORITY
The new sections are authorized by Texas Government Code §531.0055, which provides that the Executive Commissioner of HHSC shall adopt rules for the operation and provision of services by the health and human services agencies, and Texas Education Code §8.152 which allows the Executive Commissioner to establish a waiver process for an LMHA to hire a person other than an NPMHP, if certain conditions are met, to provide mental health and substance use resources to school districts.
The new sections affect Texas Government Code §531.0055 and Texas Education Code §8.152.
§307.251.Purpose.
The purpose of this subchapter is to implement the Behavioral Health Partnership Program. This program delivers mental health and substance use resources to school districts served by a regional education service center and in which the local mental health authority (LMHA) or local behavioral health authority (LBHA) also delivers services. The program allows LMHAs and LBHAs to request a waiver to employ a professional who fulfills the duties outlined in Texas Education Code §8.152.
§307.253.Application.
The subchapter applies to local mental health authorities and local behavioral health authorities.
§307.255.Definitions.
The following words and terms, when used in this subchapter, have the following meanings unless the context clearly indicates otherwise.
(1) BHPP liaison--Behavioral Health Partnership Program liaison. For purposes of this subchapter, a "non-physician mental health professional" as referenced under Texas Education Code §8.152 is included in the term "behavioral health partnership program liaison."
(2) Business day--Any day except a Saturday, Sunday, or legal holiday listed in Texas Government Code §662.021.
(3) Child--An individual under 18 years of age as defined under Texas Human Resources Code §42.002 and not emancipated as described in Texas Family Code Chapter 31.
(4) ESC--Regional education service center. An entity designated as the educational service center by the Texas Education Agency in accordance with Texas Education Code, Subtitle B, Chapter 8, Subchapter A.
(5) HHSC--Texas Health and Human Services Commission or its designee.
(6) LBHA--Local behavioral health authority. An entity designated as the local behavioral health authority by HHSC in accordance with Texas Health and Safety Code §533.0356.
(7) LMHA--Local mental health authority. An entity designated as the local mental health authority by HHSC in accordance with Texas Health and Safety Code §533.035(a).
(8) LMSW--Licensed master social worker. A person who holds a master social worker license in accordance with Texas Occupations Code Chapter 505.
(9) LPC associate--Licensed professional counselor associate. A person who holds a professional counselor associate license in accordance with 22 TAC §681.2 (relating to Definitions).
(10) NPMHP--Non-Physician Mental Health Professional.
(11) TAC--Texas Administrative Code.
§307.257.Behavioral Health Partnership Program Liaison Qualifications.
A BHPP liaison must meet the qualifications as an NPMHP under Texas Health and Safety Code §571.003 or serve under a waiver approved by HHSC in accordance with §307.267 of this subchapter (relating to Texas Health and Human Services Commission Notification).
§307.259.Local Mental Health Authority or Local Behavioral Health Authority Responsibilities.
(a) The LMHA or LBHA must:
(1) enter into a memorandum of understanding with the ESC to collaborate regarding the administration of this subchapter;
(2) employ a BHPP liaison to serve as a mental health and substance use resource for school districts located in the region served by an ESC and in which the LMHA or LBHA delivers services;
(3) pay the ESC a reasonable and negotiated cost-recovery fee, not to exceed $15,000 per year unless the LMHA or LBHA and the ESC agree to a higher amount, for providing the space and administrative support necessary for the BHPP liaison to carry out the professional duties outlined in Texas Education Code §8.155;
(4) supervise the BHPP liaison;
(5) consult with any other LMHA or LBHA in the region and the regional ESC for input on supervising the BHPP liaison and coordinating services provided by the BHPP liaison;
(6) submit a written quarterly activity and evaluation report to the HHSC contract manager regarding the outcomes for school districts and students resulting from services delivered by a BHPP liaison in accordance with §307.263 of this subchapter (relating to Responsibilities of a Behavioral Health Partnership Program Liaison);
(7) submit a written annual activity and evaluation report to the HHSC contract manager regarding the outcomes for school districts and students resulting from services delivered by a BHPP liaison in accordance with Texas Education Code §8.153;
(8) submit a written waiver request to the BHPP mailbox and the HHSC contract manager if required under Texas Education Code §8.152(c);
(9) ensure an LMSW or an LPC associate is eligible for an HHSC waiver request as outlined in this subchapter and the LMSW or LPC associate has the ability to fulfill the duties outlined in this subchapter if a waiver is requested;
(10) retain documentation in accordance with the LMHA's and LBHA's policies and procedures on efforts made to hire an NPMHP before submitting a waiver request; and
(11) submit a new waiver request, as needed, if the HHSC BHPP liaison vacates the position.
(b) If a BHPP liaison vacates the position within one year of approval of the waiver under subsection (a)(11) of this section, a new waiver request is not required.
(c)If a BHPP liaison vacates the position more than a year after approval of the waiver under subsection (a)(11) of this section, the LMHA or LBHA must attempt to hire a professional pursuant to Texas Education Code §8.152 before requesting a waiver under subsection (a)(11) of this section.
§307.261.Determining which Local Mental Health Authority or Local Behavioral Health Authority Employs a Behavioral Health Partnership Program Liaison.
If two or more LMHAs or LBHAs deliver services in a region served by a regional ESC, the LMHA or LBHA serving the majority of counties in which the ESC is located is required to hire the BHPP liaison. The LMHA or LBHA must consult with the other LMHA or LBHA in the same region before making the final hiring decision.
§307.263.Responsibilities of a Behavioral Health Partnership Program Liaison.
(a) A BHPP liaison must:
(1) serve as a mental health and substance use resource for school districts located in the region served by a regional ESC in which the LMHA or LBHA provides services; and
(2) operate within the scope of their professional state license.
(b) A BHPP liaison is responsible for carrying out the following functions and duties required of an NPMHP in accordance with Texas Education Code §8.155:
(1) helping school district personnel gain awareness and a better understanding of mental health and co-occurring mental health and substance use disorders;
(2) assisting school district personnel to implement initiatives related to mental health or substance use under state law or agency rules, interagency memorandums of understanding, and related programs; and
(3) ensuring school district personnel are aware of:
(A) the list of recommended best practice-based programs and research-based practices developed under Texas Education Code §38.351;
(B) other public and private mental health and substance use prevention, treatment, and recovery programs available in the school district, including evidence-based programs delivered by an LMHA or LBHA and other public and private mental health resources, such as the Texas School Mental Health Resources database as required by Texas Education Code §38.253; and
(C) other available public and private mental health and substance use prevention, treatment, and recovery program resources administered by the LMHA or LBHA or HHSC to support school districts, students, and families:
(4) on a monthly basis, facilitating mental health first aid training;
(5) on a monthly basis, facilitating training on the effects of grief and trauma and providing support to children with intellectual or developmental disabilities who suffer from grief or trauma; and
(6) on a monthly basis, facilitating training on prevention and intervention programs that have been shown to be effective in helping students cope with pressures to:
(A) use alcohol, cigarettes, or illegal drugs; or
(B) misuse prescription drugs.
(c) A BHPP liaison employed under this subchapter must not treat or provide counseling to a student or provide advice to school district personnel regarding a specific student.
§307.265.Texas Health and Human Services Commission Waiver Process.
(a) If an LMHA or LBHA is unable to employ a person who qualifies as an NPMHP for the BHPP liaison position in its designated ESC, the LMHA or LBHA may request a waiver from the HHSC Executive Commissioner, or designee, to employ an LMSW or LPC associate to serve as the BHPP liaison, pursuant to Texas Education Code §8.152(c).
(b) To apply for a waiver, the LMHA or LBHA must complete and submit the written HHSC Local Mental and Behavioral Health Authority Waiver Request Form to the BHPP mailbox addressing the following information:
(1) the name of the LMHA or LBHA requesting the waiver;
(2) the name of LMHA's or LBHA's staff member's name and contact information;
(3) the LMHA or LBHA's recruitment efforts to hire an NPMHP;
(4) the duration of time the LMHA or LBHA was unable to hire for this position before requesting a waiver; and
(5) the LMSW or LPC associate clinical licensure of the BHPP liaison waiver candidate.
§307.267.Texas Health and Human Services Commission Notification.
The HHSC Executive Commissioner or designee will deliver written notification to the LMHA or LBHA within ten business days after receipt of the submission regarding:
(1) whether the waiver request is approved; or
(2) the opportunity to remedy and resubmit the waiver request if the waiver request is denied.
The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.
Filed with the Office of the Secretary of State on January 31, 2024.
TRD-202400343
Karen Ray
Chief Counsel
Health and Human Services Commission
Earliest possible date of adoption: March 17, 2024
For further information, please call: (512) 243-4241