Sec. 531.0244. ENSURING APPROPRIATE CARE SETTING FOR PERSONS WITH DISABILITIES

(a) The commission and appropriate health and human services agencies shall implement a comprehensive, effectively working plan that provides a system of services and support that fosters independence and productivity and provides meaningful opportunities for a person with a disability to live in the most appropriate care setting, considering:

(1) the person's physical, medical, and behavioral needs;

(2) the least restrictive care setting in which the person can reside;

(3) the person's choice of care settings in which to reside;

(4) the availability of state resources; and

(5) the availability of state programs for which the person qualifies that can assist the person.

(b) The comprehensive, effectively working plan required by Subsection (a) must require appropriate health and human services agencies to:

(1) provide to a person with a disability living in an institution and to any other person as required by Sections 531.042 and 531.02442 information regarding care and support options available to the person with a disability, including community-based services appropriate to the needs of that person;

(2) recognize that certain persons with disabilities are represented by legally authorized representatives as defined by Section 241.151, Health and Safety Code, whom the agencies must include in any decision-making process facilitated by the plan's implementation;

(3) facilitate a timely and appropriate transfer of a person with a disability from an institution to an appropriate setting in the community if:

(A) the person chooses to live in the community;

(B) the person's treating professionals determine the transfer is appropriate; and

(C) the transfer can be reasonably accommodated, considering the state's available resources and the needs of other persons with disabilities; and

(4) develop strategies to prevent the unnecessary placement in an institution of a person with a disability who is living in the community but is in imminent risk of requiring placement in an institution because of a lack of community services.

(c) For purposes of developing the strategies required by Subsection (b)(4), a person with a mental illness who is admitted to a facility of the Texas Department of Mental Health and Mental Retardation for inpatient mental health services three or more times during a 180-day period is presumed to be in imminent risk of requiring placement in an institution. The strategies must be developed in a manner that presumes the person's eligibility for and the appropriateness of intensive community-based services and support.

(d) In implementing the plan required by Subsection (a), a health and human services agency may not deny an eligible person with a disability access to an institution or remove an eligible person with a disability from an institution if the person prefers the type and degree of care provided in the institution and that care is appropriate for the person. A health and human services agency may deny the person access to an institution or remove the person from an institution to protect the person's health or safety.

(e) Each appropriate health and human services agency shall implement the strategies and recommendations under the plan required by Subsection (a) subject to the availability of funds.

(f) This section does not create a cause of action.

(g) Not later than December 1 of each even-numbered year, the commissioner shall submit to the governor and the legislature a report on the status of the implementation of the plan required by Subsection (a). The report must include recommendations on any statutory or other action necessary to implement the plan.

Added by Acts 2001, 77th Leg., ch. 1239, Sec. 1, eff. Sept. 1, 2001.