Proposed Rules Title 26

TITLE 26. HEALTH AND HUMAN SERVICES

PART 1. HEALTH AND HUMAN SERVICES COMMISSION

CHAPTER 307. BEHAVIORAL HEALTH PROGRAMS

The Executive Commissioner of the Texas Health and Human Services Commission (HHSC) proposes new §307.301, concerning Purpose; §307.303, concerning Definitions; §307.305, concerning General Conditions of a Grant; §307.307, concerning Eligible Applicants; §307.309, concerning Eligible Projects; §307.311, concerning Grant Proposals and Selection Process; §307.313, concerning Contract Execution; §307.315, concerning Project Review and Evaluation Report; §307.351, concerning Purpose; §307.353, concerning Definitions; §307.355, concerning General Conditions of a Grant; §307.357, concerning Eligible Applicants; §307.359, concerning Eligible Projects; §307.361, concerning Grant Proposals and Selection Process; §307.363, concerning Selection Criteria; §307.365, concerning Contract Execution; and §307.367, concerning Project Review and Evaluation Report.

BACKGROUND AND PURPOSE

The purpose of the proposal is to comply with Senate Bill (S.B.) 1677, 88th Legislature, Regular Session, 2023, which requires HHSC to adopt rules to implement Texas Government Code §531.0993(d-1), requiring HHSC to establish procedures to assist community collaboratives that include a county with a population of less than 250,000 and §531.09936, requiring HHSC, to the extent money is appropriated, to contract with nonprofit organizations or governmental entities to establish or expand behavioral health centers or jail diversion centers. The proposed rules in new Subchapter G, new Division 1, establish requirements for the HHSC Mental Health Grant Program for Justice-Involved Individuals (MHGPJII) authorized under Texas Government Code §531.0993, and the proposed rules in new Division 2, establish the Rural Initiatives Grant Program to implement Texas Government Code §531.09936.

The proposed rules in new Division 1 establish the requirements of the MHGPJII to provide grants to county-based community collaboratives for the purpose of reducing: (1) recidivism by, the frequency of arrents of, and incarceration of persons with mental illness; and (2) the total waiting time for forensic commitment of persons with mental illness to a state hospital. The proposed rules outline the assistance offered by HHSC to community collaboratives that include a county with a population of less than 250,000 in submitting a proposal for the MHGPJII.

The proposed rules in Division 2 establish the requirements for the Rural Initiatives Grant Program to provide grants to establish or expand behavioral health centers or jail diversion centers in the local service area of a local mental health authority or local behavioral health authority located primarily in rural areas to provide: (1) additional forensic hospital beds and competency restoration services; (2) inpatient and outpatient mental health services to adults and children; and (3) services to reduce recidivism and the frequency of arrest, incarceration, and emergency detentions among persons with mental illness.

SECTION-BY-SECTION SUMMARY

New Division 1, Mental Health Grant Program for Justice Involved Individuals

Proposed new §307.301, Purpose, provides that the purpose of the division is to implement Texas Government Code §531.0993 by establishing a grant program.

Proposed new §307.303, Definitions, defines terms used in Division 1 of the rules.

Proposed new §307.305, General Conditions of a Grant, outlines that grants are subject to the requirements of the contract executed by HHSC. Proposed new subsection (b) outlines that HHSC provides training opportunities annually and technical assistance or data upon request up to six months before the release of a funding opportunity to assist community collaboratives that include counties with a population of less than 250,000. Proposed new subsections (c) and (d) address cancellation of a grant award and HHSC's authority to accept proposals from community collaboratives if there are appropriated but unawarded funds from the prior state fiscal year pursuant to Texas Government Code §531.0993(d-2).

Proposed new §307.307, Eligible Applicants, requires a community collaborative to provide matching funds.

Proposed new §307.309, Eligible Projects, sets forth that grant proposals must meet the requirements and specifications set forth by HHSC and lists the types of projects eligible for funding.

Proposed new §307.311, Grant Proposals and Selection Process, describes that grant funds are made available to a local mental health authority or local behavioral health authority representing a community collaborative through a competitive request for proposal process. The proposed rule establishes what the collaborative must submit in the proposal and that a proposal received after the deadline will not be considered. The proposed rule sets forth that the amount of grant money reserved for community collaboratives that include a county with a population of less than 250,000, and allows those community collaborative to request technical assistance or data from HHSC. The proposed rule addresses the process if HHSC has additional funds available after selecting grant recipients.

Proposed new §307.313, Contract Execution, sets forth contractual requirements for the award of the grant.

Proposed new §307.315, Project Review and Evaluation Report, requires grantees to submit performance data for each grant-funded project on a schedule specified by HHSC in the contract and a report. The proposed rule sets forth that HHSC may make inspections of the operation and provision of mental health services provided by a community collaborative to ensure state money appropriated for the grant program is used effectively.

New Division 2, Rural Initiatives Grant Program

Proposed new §307.351, Purpose, provides that the purpose of this division is to implement Texas Government Code §531.09936 by establishing a Grant Program.

Proposed new §307.353, Definitions, defines terms used in Division 2 of the rules.

Proposed new §307.355, General Conditions of a Grant, outlines that grants are subject to the availability of appropriated funding, a competitive award process established by HHSC, and the requirements of the contract executed by HHSC. Proposed new subsection (b) outlines that HHSC provides training opportunities annually and technical assistance or data upon request up to six months before the release of a funding opportunity to governmental entities or nonprofit organizations.

Proposed new §307.357, Eligible Applicants, provides that governmental entities and nonprofit organizations are eligible for grants and requires governmental entities and nonprofit organizations to provide matching funds.

Proposed new §307.359, Eligible Projects, sets forth that grant proposals must meet the requirements and specifications described in requests for proposals issued by HHSC for eligible funding and describes the type of services that must be part of a proposal to expand or establish a behavioral health center or jail diversion center.

Proposed new §307.361, Grant Proposals and Selection Process, requires a governmental entity or nonprofit organization to submit a proposal directly to HHSC in the time and manner specified by HHSC and any proposal received after the deadline will not be considered. The proposed rule sets forth that HHSC reviews and evaluates proposals in accordance with the evaluation methodology published in the request for proposal or other notice of potential award issued by HHSC.

Proposed new §307.363, Selection Criteria, outlines HHSC's criteria for selecting grant recipients.

Proposed new §307.365, Contract Execution, sets forth contractual requirements for the award of the grant.

Proposed new §307.367, Project Review and Evaluation Report, requires grantees to submit performance data for each grant-funded project on a schedule determined by HHSC and a report. The proposed rule sets forth that HHSC may make inspections of the operation and provision of mental health services provided by a grantee to ensure state money is used effectively.

FISCAL NOTE

Trey Wood, HHSC 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 create 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, HHSC Chief Financial Officer, has also determined that there will be no adverse economic effect on small businesses, micro-businesses, or rural communities because there are no anticipated economic costs to persons who are required to comply with the proposed rules because participation in the grant programs described in the proposed rules is optional.

LOCAL EMPLOYMENT IMPACT

The proposed rules will affect a local economy.

COSTS TO REGULATED PERSONS

Texas Government Code §2001.0045 does not apply to these rules because the rules do not impose a cost on regulated persons, relate to a state agency procurement, and are necessary to implement legislation that does not specifically state that §2001.0045 applies to the rules.

PUBLIC BENEFIT AND COSTS

Sonja Gaines, Deputy Executive Commissioner for Behavioral Health Services, has determined that for each year of the first five years the rules are in effect, the public benefit will be that more Texans have access to behavioral health care in their local community.

Trey Wood, HHSC Chief Financial Officer, 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 participation in the grant programs described in the proposed rules is optional.

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

Questions about the content of this proposal may be directed to Robert Dole at (512) 568-4605 in HHSC Behavioral Health Services.

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 24R007" in the subject line.

SUBCHAPTER G. BEHAVIORAL HEALTH GRANT AND FUNDING PROGRAMS

DIVISION 1. MENTAL HEALTH GRANT PROGRAM FOR JUSTICE INVOLVED INDIVIDUALS

26 TAC §§307.301, 307.303, 307.305, 307.307, 307.309, 307.311, 307.313, 307.315

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; §531.0993 which requires HHSC to establish a grant program to reduce recidivism, arrest, and incarceration among individuals with mental illness and to reduce the wait time for a forensic commitment; and §531.09936 which requires HHSC to contract with nonprofit organizations or governmental entities to establish or expand behavioral health centers or jail diversion centers in local service areas of local mental health authorities or local behavioral health authorities that are located primarily in rural areas.

The new sections affect Texas Government Code §531.0055, §531.0993, and §531.09936.

§307.301.Purpose.

The purpose of this division is to implement Texas Government Code §531.0993 by establishing a program to provide grants to county-based community collaboratives for the purpose of reducing:

(1) recidivism by, the frequency of arrests of, and incarceration of persons with mental illness; and

(2) the total waiting time for forensic commitment of persons with mental illness to a state hospital.

§307.303.Definitions.

The following words and terms, when used in this division, have the following meanings, unless the context clearly indicates otherwise.

(1) ACT--Assertive community treatment. A 24-hour team-based service that provides treatment, rehabilitation, and support services in the community to individuals who have a history of multiple psychiatric hospitalizations (two or more in 180 days or four or more in two years) or at least one hospitalization of greater than 30 days duration in the last two years. The provision of ACT requires the following.

(A) Individuals identified as needing ACT services must be prioritized for supportive housing, supported employment, and co-occurring psychiatric and substance use disorder services as needed.

(B) The use of an integrated services approach merging clinical and rehabilitation staff expertise, such as psychiatric, substance abuse, vocational or employment, and supportive housing, within one mobile service delivery system.

(C) ACT Teams provide permanent supportive housing services, supported employment services, substance use services, psychotherapy services, and mental health rehabilitation services to individuals they serve with minimal external referrals for these services. Referrals are appropriate for specialized therapeutic modalities for complex trauma.

(D) Services are delivered on an individual basis with the exception of group activities to reduce social isolation or address substance use disorder issues.

(E) The ACT Team has a maximum case ratio of 10 service recipients per staff person.

(F) The ACT Team implements ACT services according to its evidence-based practice or the guidelines defined by HHSC.

(2) Applicant--An entity that submits a proposal to apply for a grant award that is part of a community collaborative.

(3) Community collaborative--A partnership that includes a county, a local mental health authority, or local behavioral health authority that operates in the county, and each hospital district, if any, located in the county. A community collaborative may include other local entities designated by the collaborative's members.

(4) Continuity of care--This term has the meaning set forth in §306.153 of this title (relating to Definitions).

(5) FACT--Forensic assertive community treatment. A service delivery model intended for individuals with serious mental illness who are involved with the criminal justice system. These individuals may have co-occurring substance use and physical health disorders. FACT addresses the likelihood that an individual will engage in future illegal behavior in the form of a new crime or failure to comply with conditions of probation or parole, and factors that increase an individual's likelihood of re-offense, such as lack of employment or livable wages, or the presence of a substance use disorder.

(6) Grantee--A recipient of a grant awarded under this division.

(7) HHSC--The Texas Health and Human Services Commission.

(8) 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.

(9) 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).

(10) Mental health jail diversion program--A program that serves individuals with behavioral health needs who are involved, or at risk of involvement, in the criminal justice system by diverting the individuals from jail and providing the individuals with, or connecting them to, community mental health and substance use services.

(11) Rapid response team--An interdisciplinary team of behavioral health providers that provides rapid assessment and deployment of resources for individuals who are experiencing acute clinical deterioration, or signs of imminent clinical deterioration, related to acute stress or a psychiatric condition that impairs or impedes their mental health in a hospital, facility, or community with the goal of preventing harm; a higher intensive level of care, such as an intensive care unit transfer in a hospital or hospitalization in the community; or death.

§307.305.General Conditions of a Grant.

(a) A grant awarded under this division, and any addition to such a grant is, subject to the requirements of the contract executed by HHSC with the grantee as required under §307.313 of this division (relating to Contract Execution).

(b) HHSC will provide a community collaborative that includes a county with a population of less than 250,000 with:

(1) annual training opportunities related to this grant program posted on the HHSC website; and

(2) technical assistance and provision of data to the community collaborative upon request as described in §307.311(e) of this division (Grant Proposals and Selection Process) up to six months before the release of a funding opportunity under Texas Government Code §531.0993.

(c) A grant award is subject to the availability of appropriated state funds and may be canceled either before or after HHSC awards a grant if funding appropriated to HHSC for the grant is terminated, withdrawn, or insufficient.

(d) As permitted under Texas Government Code §531.0993(d-2), in a given state fiscal year, if HHSC has appropriated but unawarded funds from the prior state fiscal year, HHSC will accept proposals from community collaboratives that were not selected in the previous fiscal year or that were selected as grant recipients in the previous fiscal year but require additional funding.

§307.307. Eligible Applicants.

A community collaborative must provide matching funds, as outlined by HHSC in the request for proposals, in alignment with Texas Government Code §531.0993(c-1), which can include gifts, grants, donations, or in-kind contributions from any person but must not include money from state funds.

§307.309.Eligible Projects.

Grant proposals must meet the requirements and specifications set forth in the competitive request for proposal by HHSC. Projects eligible for grant funding include:

(1) continuation of a mental health jail diversion program;

(2) establishment or expansion of a mental health jail diversion program;

(3) establishment of alternatives to competency restoration in a state hospital, including outpatient competency restoration, inpatient competency restoration in a setting other than a state hospital, or jail-based competency restoration;

(4) provision of ACT or FACT with an outreach component;

(5) provision of intensive mental health services and substance use treatment not readily available in the county;

(6) provision of continuity of care services for an individual being released from a state hospital;

(7) establishment of interdisciplinary rapid response teams to reduce law enforcement's involvement with mental health emergencies; and

(8) provision of local community hospital, crisis, respite, or residential beds.

§307.311.Grant Proposals and Selection Process.

(a) Grant funds are made available to a local mental health authority or local behavioral health authority representing a community collaborative through a competitive request for proposal process.

(b) An applicant must include in the proposal:

(1) the objectives of reducing:

(A) recidivism by, the frequency of arrests of, and incarceration of persons with mental illness; and

(B) the total waiting time for forensic commitment of persons with mental illness to a state hospital;

(2) a statement indicating the amount of matching funds the collaborative is able to provide; and

(3) a plan that:

(A) is endorsed by each of the collaborative's member entities;

(B) identifies a target population;

(D) includes outcome measures to evaluate the success of the plan; and

(E) describes how the success of the plan in accordance with the outcome measures would further the state's interest in the grant program's purposes.

(c) An applicant must submit a proposal for a grant directly to HHSC in the time and manner specified by HHSC. A proposal received after the deadline will not be considered. HHSC reviews and evaluates eligible, complete, and timely proposals in accordance with the evaluation methodology published in the request for proposal or other notice of potential grant award issued by HHSC.

(d) From money appropriated to HHSC for each state fiscal year to implement this grant, HHSC reserves at least 20 percent of that total for grants to community collaboratives that include a county with a population of less than 250,000.

(e) An applicant that includes a county with a population of less than 250,000 may request technical assistance or data from HHSC up to six months before the release of a funding opportunity.

(f) To the extent money appropriated to HHSC for a state fiscal year to implement this grant remains available to HHSC after grant recipients are selected for the fiscal year, HHSC makes grants available using the money remaining for the fiscal year through a competitive request for proposal process. Subsection (d) of this section does not apply to this process.

§307.313.Contract Execution.

Grantees are required to execute a contract with HHSC on mutually agreeable terms and conditions in the manner and format prescribed by HHSC. Grant funds may not be distributed to a grantee before the execution of a contract with HHSC. In addition to other requirements, the contract will require that the grantee comply with:

(1) the performance objectives established by HHSC and monitored through progress reports;

(2) any financial and reporting requirements established by HHSC;

(3) all applicable policies and procedures; and

(4) all applicable federal and state laws and their implementing regulations.

§307.315.Project Review and Evaluation Report.

(a) Performance data for each grant-funded project must be submitted by grantees on a routine schedule as specified in the contract with HHSC.

(b) Not later than the 90th day after the last day of the state fiscal year for which HHSC distributes a grant under this division, each grantee must prepare and submit a report to HHSC describing the effect of the grant money and matching funds in achieving the outcome measures in the plan submitted with the grantee's proposal.

(c) HHSC may make inspections of the operation and provision of mental health services provided by a community collaborative under this grant to ensure state money appropriated for the grant program is used effectively.

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 25, 2024.

TRD-202400265

Karen Ray

Chief Counsel

Health and Human Services Commission

Earliest possible date of adoption: March 10, 2024

For further information, please call: (512) 568-4605

DIVISION 2. RURAL INITIATIVES GRANT PROGRAM

26 TAC §§307.351, 307.353, 307.355, 307.357, 307.359, 307.361, 307.363, 307.365, 307.367

STATUTORY AUTHORITY

The new sections affect Texas Government Code §531.0055, §531.0993, and §531.09936.

§307.351.Purpose.

(a) The purpose of this division is to implement Texas Government Code §531.09936 by establishing a grant program to assist with the establishment or expansion of behavioral health centers or jail diversion centers in a local mental health authority or local behavioral health authority's local service area to provide:

(1) additional forensic hospital beds and competency restoration services;

(2) inpatient and outpatient mental health services to adults and children; and

(3) services to reduce recidivism and the frequency of arrest, incarceration, and emergency detentions among persons with mental illness.

(b) To the extent money is appropriated to HHSC for this program, HHSC, in cooperation with local mental health authorities and local behavioral health authorities located primarily in rural areas of this state, awards contracts to nonprofit organizations or governmental entities under this division.

§307.353.Definitions.

The following words and terms, when used in this division, have the following meanings, unless the context clearly indicates otherwise.

(1) Applicant--A non-profit or governmental entity that submits a proposal to apply for a grant under this division.

(2) Governmental entity--This state, a political subdivision of this state, or an agency of this state.

(3) Grantee--A recipient of funds awarded under this division.

(4) HHSC--The Texas Health and Human Services Commission.

(5) Local behavioral health authority--A local behavioral health authority designated by HHSC in accordance with Texas Health and Safety Code §533.0356.

(6) Local mental health authority--A local mental health authority designated by HHSC in accordance with Texas Health and Safety Code §533.035(a).

(7) Nonprofit organization--An organization that is exempt from federal income taxation under Section 501(a), Internal Revenue Code of 1986, by being listed as an exempt entity under Section 501(c)(3) of that code.

(8) Rural--A county with a population of 250,000 or less.

§307.355.General Conditions of a Grant.

(a) A grant under this division, and any extension, continuation, or addition to such funds, are subject to:

(1) the availability of appropriated state funds;

(2) a competitive award process established by HHSC; and

(3) the requirements of the contract executed by HHSC with the grantee as required under §307.365 of this division (relating to Contract Execution).

(b) HHSC will provide a governmental entity or nonprofit organization with:

(1) annual training opportunities related to this grant program posted on the HHSC website; and

(2) technical assistance and the provision of data upon request as described in §307.361(c) of this division (Grant Proposals and Selection Process) up to six months before the release of a funding opportunity under Texas Government Code §531.09936.

§307.357.Eligible Applicants.

In addition to the general conditions described in §307.355 of this division (relating to General Conditions of a Grant):

(1) only governmental entities and nonprofit organizations are eligible for grants awarded under this division; and

(2) a governmental entity or nonprofit organization must provide matching funds as outlined by HHSC in the request for proposals, which can include gifts, grants, donations, or in-kind contributions from any person but must not include money from state funds.

§307.359.Eligible Projects.

Proposals must meet the requirements and specifications set forth in requests for proposals issued by HHSC. Proposals must be to expand or establish a behavioral health center or jail diversion center to provide:

(1) forensic hospital beds and competency restoration services;

(2) inpatient and outpatient mental health services for adults and children, including counseling and psychiatric services; and

(3) services to reduce recidivism and the frequency of arrest, incarceration, and emergency detentions among persons with mental illness in the local service area.

§307.361.Grant Proposals and Selection Process.

(a) An applicant must submit a proposal directly to HHSC in the time and manner specified by HHSC. A proposal received after the deadline specified by HHSC will not be considered.

(b) HHSC reviews and evaluates eligible, complete, and timely proposals in accordance with the evaluation methodology published in the request for proposal or other notice of potential award issued by HHSC.

(c) An applicant may request technical assistance or data from HHSC up to six months before the release of a funding opportunity under Texas Government Code §531.09936.

§307.363.Selection Criteria.

In selecting grant recipients, HHSC:

(1) prioritizes proposals from applicants for services that will be provided primarily in rural areas;

(2) considers the extent to which proposed services are already available in the area to be served; and

(3) considers other criteria established by HHSC as described in the specific request for proposal or other notice of potential awards issued by HHSC.

§307.365.Contract Execution.

(1) the performance objectives established by HHSC and monitored through progress reports;

(2) any financial and reporting requirements established by HHSC;

(3) all applicable policies and procedures; and

(4) all applicable federal and state laws and their implementing regulations.

§307.367.Project Review and Evaluation Report.

(a) Performance data for each grant-funded project must be submitted by grantees on a routine schedule determined by HHSC.

(b) Not later than the 90th day after the last day of the state fiscal year for which HHSC distributes a grant under this division, each grantee must prepare and submit a report describing the effect of the grant money and matching funds in achieving the outcome measures in the plan submitted with the proposal.

(c) HHSC may make inspections of the operation and provision of mental health services provided by a grantee under this section to ensure state money appropriated for the grant program is used effectively.