2005 Texas Human Resources Code CHAPTER 45. PRIVATIZATION OF SUBSTITUTE CARE AND CASE MANAGEMENT SERVICES


HUMAN RESOURCES CODE
CHAPTER 45. PRIVATIZATION OF SUBSTITUTE CARE AND CASE MANAGEMENT SERVICES
SUBCHAPTER A. GENERAL PROVISIONS
§ 45.001. DEFINITIONS.
Text of section effective until September 1, 2012
In this chapter: (1) "Case management services" means the provision of case management services to a child for whom the department has been appointed temporary or permanent managing conservator, including caseworker-child visits, family visits, the convening of family group conferences, the development and revision of the case plan, the coordination and monitoring of services needed by the child and family, and the assumption of court-related duties, including preparing court reports, attending judicial hearings and permanency hearings, and ensuring that the child is progressing toward permanency within state and federal mandates. (2) "Commission" means the Health and Human Services Commission. (3) "Department" means the Department of Family and Protective Services. (4) "Executive commissioner" means the executive commissioner of the Health and Human Services Commission. (5) "Family-based safety services" means services designed to help children at risk of being placed in foster care to remain safely with their families. (6) "Independent administrator" means an independent agency selected through a competitive procurement process to: (A) secure, coordinate, and manage substitute care services and case management services in a geographically designated area of the state; and (B) ensure continuity of care for a child referred to the administrator by the department and the child's family from the day a child enters the child protective services system until the child leaves the system. (7) "Performance-based contracting" means the structuring of all aspects of the procurement of services around the purpose of the work to be performed and the desired results with the contract requirements set forth in clear, specific, and objective terms with measurable outcomes. Contracts may also include provisions that link the performance of the contractor to the level and timing of reimbursement. (8) "Permanency services" means services, other than family-based safety services, provided to secure a child's safety, permanency, and well-being, including substitute care services, family reunification services, adoption and postadoption services, preparation for adult living services, and case management services. (9) "Placement assessment" means the process used by the department or another authorized entity to determine the most appropriate, least restrictive, safe placement resource for a child who must be separated temporarily from the care of the child's parents. (10) "Privatize" means to contract with a private entity to provide certain governmental services. (11) "Psychotropic medication" means a drug that affects the mind through action on the central nervous system and is prescribed for depression, schizophrenia, attention deficit hyperactivity disorder, seizures, and a variety of other similar conditions. (12) "Substitute care provider" means a child-care institution or a child-placing agency, as defined by Section 42.002. (13) "Substitute care services" means services provided to or for children in substitute care and their families, including the recruitment, training, and management of foster parents, the recruitment of adoptive families, and the facilitation of the adoption process, family reunification, independent living, emergency shelter, residential group care, foster care, therapeutic foster care, and post-placement supervision, including relative placement. The term does not include the regulation of facilities under Subchapter C, Chapter 42. Added by Acts 2005, 79th Leg., ch. 268, § 1.123, eff. Sept. 1, 2005. § 45.002. PRIVATIZING SUBSTITUTE CARE AND CASE MANAGEMENT SERVICES; DEPARTMENT DUTIES.
Text of section effective until September 1, 2012
(a) Not later than September 1, 2011, the department shall complete the statewide privatization of the provision of substitute care and case management services in this state. (b) On and after September 1, 2011: (1) all substitute care and case management services for children for whom the department has been appointed temporary or permanent managing conservator must be provided by child-care institutions and child-placing agencies; (2) all substitute care and case management service providers shall, to the best extent possible, honor the cultural and religious affiliations of a child placed in the service provider's care, regardless of the religious affiliation of the service provider; and (3) except as provided by Subsections (d) and (e) and notwithstanding any other law, the department may not directly provide substitute care and case management services. (c) On and after September 1, 2011, the department shall: (1) monitor the quality of services for which the department and each independent administrator contract under this chapter; and (2) ensure that the services are provided in accordance with federal law and the laws of this state, including department rules and rules of the Department of State Health Services and the Texas Commission on Environmental Quality. (d) On and after September 1, 2011, the department may provide substitute care and case management services in an emergency. The executive commissioner shall adopt rules describing the circumstances in which the department may provide those services. (e) The department may provide substitute care and case management services as a provider of last resort as provided by Section 264.106(k), Family Code. Added by Acts 2005, 79th Leg., ch. 268, § 1.123, eff. Sept. 1, 2005. § 45.003. HIRING PREFERENCE.
Text of section effective until September 1, 2012
A substitute care or case management services provider that contracts with the department to provide substitute care or case management services shall: (1) give a preference in hiring to qualified department employees in good standing with the department who provide substitute care or case management services and whose positions with the department may be eliminated as a result of the privatization of substitute care and case management services; and (2) ensure that each subcontractor with whom the substitute care or case management services provider contracts for the provision of substitute care or case management services also gives a preference in hiring to current and former qualified department employees whose positions with the department may be or were eliminated as a result of the privatization of substitute care and case management services. Added by Acts 2005, 79th Leg., ch. 268, § 1.123, eff. Sept. 1, 2005. § 45.004. INDEPENDENT ADMINISTRATORS; DEPARTMENT DUTIES. (a) The department shall research and develop a comprehensive strategy for contracting for management support services from independent administrators on a regional basis. If the department determines that an independent administrator could manage and procure substitute care and case management services contracts with private agencies and conduct placement assessments in a more cost-beneficial manner, the department shall implement a transition plan to transfer the procurement, management, and oversight of substitute care and case management services from the department to an independent administrator, as well as responsibility for placement assessments. If the department determines that contracting for management support from an independent administrator is not cost beneficial, the privatization of substitute care and case management services will occur as provided by Section 45.002(b). (b) The comprehensive strategy, at a minimum, must: (1) use competitively procured independent administrators to procure and manage substitute care and case management providers in a geographic region designated by the department; (2) require independent administrators to contract with private agencies that will: (A) increase local foster and adoptive placement options for all children, especially teenagers, sibling groups, children whose race or ethnicity is disproportionately represented in foster care, children with severe or multiple disabilities, and other children who are difficult to place; and (B) expand efforts to recruit foster families, adoptive families, and alternative care providers through faith-based and other targeted recruitment programs; and (3) allow permanency services providers to enter client, service, and outcome information into the department's client data system. (c) Subject to the appropriation of funds, the department shall: (1) enhance existing data systems to include contract performance information; and (2) implement a contracting data system developed or procured by the department, to track quality assurance and other contracting tools to effectively manage, monitor, and evaluate performance-based contracting functions. Added by Acts 2005, 79th Leg., ch. 268, § 1.123, eff. Sept. 1, 2005.
SUBCHAPTER B. DEPARTMENT DUTIES
§ 45.051. REORGANIZING STAFF RESPONSIBILITIES.
Text of section effective until September 1, 2012
Not later than March 1, 2006, the department shall develop a plan for reorganizing the department's operation to support future procurement of, contracting with, and monitoring of private contractors and enforcement of the licensing of facilities. The plan must include provisions for reducing duplication of the department's program monitoring activities. Added by Acts 2005, 79th Leg., ch. 268, § 1.123, eff. Sept. 1, 2005. § 45.052. FINANCING.
Text of section effective until September 1, 2012
The department shall create financing and payment arrangements that provide incentives for an independent administrator and substitute care and case management providers to achieve safety, permanency, and well-being outcomes and improved system performance. In developing this financing arrangement, the department shall examine: (1) the use of case rates or performance-based fee-for-service contracts that include incentive payments or payment schedules that link reimbursement to results; and (2) ways to reduce a contractor's financial risk that could jeopardize the solvency of the contractor, including the use of a risk-reward corridor that limits risk of loss and potential profits or the establishment of a statewide risk pool. Added by Acts 2005, 79th Leg., ch. 268, § 1.123, eff. Sept. 1, 2005. § 45.053. ADOPTION OF TRANSITION PLAN.
Text of section effective until September 1, 2012
(a) Not later than September 30, 2005, the commission and the department shall submit to the legislature a plan for the development of the transition plan, including the planning structure and process, engagement of stakeholders, and access to experienced consultation and technical assistance. (b) Not later than March 1, 2006, the commission and the department shall, in consultation with private entities under contract to provide substitute care services for the department, including members of the boards of directors of the private entities and other community stakeholders, develop and adopt a substitute care and case management services transition plan consistent with the requirements of Subchapter C. (c) The executive commissioner shall adopt rules to implement the privatization of substitute care and case management services in this state. Added by Acts 2005, 79th Leg., ch. 268, § 1.123, eff. Sept. 1, 2005. § 45.054. REGIONAL IMPLEMENTATION.
Text of section effective until September 1, 2012
(a) The department shall implement the privatization of substitute care and case management services on a regional basis in accordance with the transition plan. The transition plan must include a schedule with deadlines for implementation of the plan. Subject to the requirements of Subsections (c), (d), and (e), statewide implementation of the plan shall be completed not later than September 1, 2011. The commission shall propose the first three regions of the state for implementation of privatization based on state demographics and shall consider including a rural region, a metropolitan region, and a region including border areas of the state. (b) The transition plan must include a schedule with the following deadlines for implementation of the plan: (1) completion of the transition plan, not later than March 1, 2006; (2) release of a request for proposal for a geographic region of the state designated by the department, not later than April 30, 2006; (3) the awarding of the contract described by Subdivision (2), not later than September 30, 2006; (4) establishment of the multidisciplinary team and necessary processes, evaluation criteria, and monitoring tools to be used to monitor and evaluate the performance of the contractor, not later than September 30, 2006; (5) completion of the transition of substitute care and case management services in the first region, not later than December 31, 2007; (6) the review and evaluation of the multidisciplinary team's reports pertaining to the contractor's achievement of performance-based milestones and the effect on the quality of permanency services provided, annually beginning December 31, 2007; (7) completion of the transition of substitute care and case management services in the second and third regions, not later than December 1, 2009; and (8) completion of the statewide implementation of contracted substitute care and case management services for additional geographic regions, not later than September 1, 2011. (c) Not later than the first anniversary of the date the department enters into the first contract for substitute care and case management services under this section, the department shall contract with a qualified, independent third party to evaluate each phase of the privatization of substitute care and case management services. Each evaluation must: (1) assess the performance of substitute care and case management services based on compliance with defined quality outcomes for children; (2) assess the achievement of performance measures; (3) compare for quality the performance of substitute care and case management services provided by contractors to substitute care and case management services provided by the department in similar regions; (4) determine if contracted services are cost beneficial; and (5) assess the private sector's ability to meet the performance measures, including service capacity, for the remaining regions. (d) The independent third party with whom the department contracts under Subsection (c) shall submit its reports and recommendations to the House Human Services Committee, or its successor, and the Senate Health and Human Services Committee, or its successor. (e) The department shall continue to implement the transition plan for the second and third regions only after: (1) the commission reports to the House Human Services Committee, or its successor, and the Senate Health and Human Services Committee, or its successor, the status of the initial transition of services to a contractor in the first region not later than December 31, 2006; (2) the independent third party with whom the department contracts under Subsection (c) evaluates and reports to the House Human Services Committee, or its successor, and the Senate Health and Human Services Committee, or its successor, on the performance of contracted substitute care and case management services in the first region not later than December 31, 2008; and (3) the commission determines, based on the report prepared under Subdivision (2) or information obtained by the review required under Subsection (b)(6), whether material modifications to the model for privatization of substitute care and case management services are necessary and submits a report and recommendations to the House Human Services Committee, or its successor, and the Senate Health and Human Services Committee, or its successor, not later than December 31, 2008. (f) The department may not implement the transition plan for the second and third regions before September 1, 2009. (g) The department shall continue to implement the transition plan for the remaining regions of the state only after: (1) the independent third party with whom the department contracts under Subsection (c) evaluates and reports to the House Human Services Committee, or its successor, and the Senate Health and Human Services Committee, or its successor, on the performance of contracted substitute care and case management services in the second and third regions not later than September 1, 2010; and (2) the commission determines, based on the report prepared under Subdivision (1) or information obtained by the review required under Subsection (b)(6), whether material modifications to the model for privatization of substitute care and case management services are necessary and submits a report and recommendations to the House Human Services Committee, or its successor, and the Senate Health and Human Services Committee, or its successor, not later than December 31, 2010. (h) Nothing in this chapter, including the deadlines for implementing this section, precludes the department from immediately converting from an open-enrollment system to a statewide competitive procurement system for substitute care. Added by Acts 2005, 79th Leg., ch. 268, § 1.123, eff. Sept. 1, 2005.
SUBCHAPTER C. TRANSITION PLAN
§ 45.101. GOALS FOR PRIVATIZATION.
Text of section effective until September 1, 2012
The transition plan adopted under Section 45.053 must provide for a new structural model for the community-centered delivery of substitute care and case management services that is based on a goal of improving protective services, achieving timely permanency for children in substitute care, including family reunification, placement with a relative, or adoption, and improving the overall well-being of children in substitute care consistent with federal and state mandates. Added by Acts 2005, 79th Leg., ch. 268, § 1.123, eff. Sept. 1, 2005. § 45.102. TRANSITION PLAN REQUIREMENTS.
Text of section effective until September 1, 2012
The transition plan developed by the department and the commission must: (1) identify barriers to privatization, including regional disparities in resources, provider capacity, and population, and propose solutions to stimulate capacity and adjust program delivery; (2) provide details regarding the target population and services by region that will be part of the system redesign, including the number of children and families, historic caseload trends and service utilization information, and projected caseloads; (3) provide details regarding the roles, responsibilities, and authority assigned to the public and private entities, including the department, independent administrators, and substitute care and case management providers, in making key decisions throughout the child and family case; (4) include an implementation plan to transfer all foster homes certified by the department to private child-placing agencies, ensuring minimum disruption to the children in foster care and to current foster parents; (5) specify the limited circumstances under which a foster home verified by the department may continue to be verified by the department when continuation would be in the best interest of a child in the care of the foster home; (6) include a process for assessing each child who is transferred to a private substitute care provider to verify the child's service needs; (7) include an implementation plan to transfer all adoption services to private agencies, including details of how and when cases will be transferred and how adoption provider contracts and reimbursements methods will be structured; (8) describe the process to transfer the duties of case management and family reunification services from department staff to private agency staff, including the integration of family group conferencing into private agency case management; (9) describe the manner in which the department will procure and contract for kinship services that are funded by the state; (10) provide details regarding financial arrangements and performance expectations for independent administrators and substitute care and case management providers that: (A) provide incentives for desired results and explicit contract performance and outcome indicators; (B) describe how various risk-based arrangements will be weighed and realistically assessed using sound actuarial data and risk modeling and how mechanisms will be selected to limit uncontrollable risks that could threaten provider stability and quality; (C) describe how financing options will increase flexibility to promote innovation and efficiency in service delivery; and (D) provide balance between control over key decisions and the level of risk the contractor assumes; (11) require the executive commissioner to evaluate whether existing rate structures are appropriate to compensate substitute care providers who enter into contracts with an independent administrator under Section 264.106, Family Code, considering new functions to be served by the providers, and, if necessary, require the executive commissioner to adjust the rates accordingly; (12) require the department to enter into contracts for the provision of substitute care and case management services as required by Section 264.106, Family Code, and describe the procurement and contracting process, including: (A) stating how the department will shift from an open-enrollment system to a competitive procurement system; (B) identifying the services that will be procured and contracted for directly with the department and the services that will be procured by an independent administrator; and (C) developing a procurement and contracting schedule to ensure full implementation not later than September 1, 2011; (13) provide for the implementation of Sections 264.1062 and 264.107, Family Code, by describing each party's responsibility and ensuring that the department retains the legal authority to effectively provide oversight; (14) describe formal training required for department staff, independent administrators, and substitute care and case management providers; (15) define roles and expectations related to reporting and managing data required to ensure quality services and meet state and federal requirements, including data collection responsibilities for an independent administrator and service provider; (16) describe how the transition will impact the state's ability to obtain federal funding and examine options to further maximize federal funding opportunities and increased flexibility; and (17) describe the costs of the transition, the initial start-up costs, and mechanisms to periodically assess the overall adequacy of funds and the fiscal impact of the change. Added by Acts 2005, 79th Leg., ch. 268, § 1.123, eff. Sept. 1, 2005.
SUBCHAPTER D. MISCELLANEOUS PROVISIONS
§ 45.151. PROHIBITION ON CERTAIN CONTRACTS.
Text of section effective until September 1, 2012
(a) The department may not accept a bid under this chapter from a person or award to a person a contract under this chapter that includes proposed financial participation by the person if: (1) the person participated in preparing the bid specifications or request for proposals on which the bid or contract is based; and (2) the bid specifications or request for proposals on which the bid or contract is based: (A) requires a work plan, project design, or other criteria for participation in the contract that is specific to that person or likely to limit or exclude competitors who provide similar goods or services; or (B) includes a scope of required goods or services that is so narrowly defined that it is specific to that person or likely to limit or exclude competitors who provide similar goods or services. (b) The department may not accept a bid under this chapter from or award a contract under this chapter to an individual or business entity that is barred from participating in state contracts under Section 2155.077, Government Code. (c) The department may not accept a bid under this chapter from or award a contract under this chapter to an individual or business entity that was awarded a contract valued at $1 billion or more during the four-year period immediately before the date of the issuance of relevant requests for proposals under Section 45.054. (d) If the department determines that an individual or business entity holding a contract under this chapter was ineligible to have the contract accepted or awarded under Subsection (a), (b), or (c), the department may immediately terminate the contract without further obligation to the vendor. Added by Acts 2005, 79th Leg., ch. 268, § 1.123, eff. Sept. 1, 2005. § 45.152. SUBCONTRACTOR PAYMENT.
Text of section effective until September 1, 2012
The existence of a dispute between the department and a contractor regarding a contract under this chapter does not justify nonpayment of a subcontractor for work completed by the subcontractor under the contract if the subcontractor has completed the work in a satisfactory manner and the work has been approved by the department and the contractor. Added by Acts 2005, 79th Leg., ch. 268, § 1.123, eff. Sept. 1, 2005. § 45.153. EXPIRATION.
Text of section effective until September 1, 2012
This chapter expires September 1, 2012. Added by Acts 2005, 79th Leg., ch. 268, § 1.123, eff. Sept. 1, 2005.

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