Negotiated Rulemaking to Develop an Implementation Plan

for Provider of Last Resort

Negotiating Committee Meeting

October 10-11, 2006

Sam Shore, Convener

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Chronology of Provider of Last Resort

• May 2003 - HB 2292 added Provider of Last Resort Provisions (e) through (g) to Section 533.035, THSC

• June 2005 - Executive Order RP 45 was issued• March 2006 - AG opinion clarified that Provider

of Last Resort applied to mental health services• June 2006 - HHSC ordered DSHS to conduct

negotiated rulemaking per RP 45

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Texas Health & Safety Code 533.035(e)-(g)

Texas Health & Safety Code § 533.035(e)-(h) * (e) In assembling a network of service providers, a local mental health and mental retardation authority may serve as a provider of services only as a provider of last resort and only if the authority demonstrates to the department that:

(1) the authority has made every reasonable attempt to solicit the development of

an available and appropriate provider base that is sufficient to meet the needs of consumers in its service area; and

(2) there is not a willing provider of the relevant services in the authority’s area or in the county where the provision of the services is needed.

(f) The department shall review the appropriateness of a local mental health and mental retardation authority’s status as a service provider at least biennially. * item (g) is omitted from this document because it only applies to mental retardation services

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Executive Order RP 45

• Commitment to the most effective services• Consumer and family choice• Strengthening and maintaining the safety net• Local involvement in system development• Orders the development of an implementation plan

using a negotiated rulemaking process• The plan must ensure:

– Protection of consumer choice• Laws protecting choice of providers are prioritized

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Executive Order RP 45 (cont.)

– Protection of the safety net• MH authorities maintain sufficient infrastructure to ensure services

remain available

– Recognition of local differences• Must accommodate differences in rural and urban resources in

determining reasonable attempt to develop the provider network

• Responsible timelines– Ensure no disruption to consumer services– Respond to local community readiness– Respond to need for a safety net

• Protection of service funds– Service funds not diverted to administration

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Convening Interested Parties:Discussion Topics

• Willingness to participate

• Issues to be negotiated

• Utility of negotiated rulemaking for Provider of Last Resort (PLR)

• Identify other affected persons

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Conference Member Input

• What are the issues to be considered in developing a PLR implementation plan?

• What are the advantages and disadvantages of negotiated rulemaking for PLR?

• Who are the interested parties who will be affected by the implementation of PLR?

• What are the requirements of individuals who represent affected parties in negotiations?

• Who has the resources, willingness and authority to represent interested parties affected by PLR?

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Preliminary List of Issues

• Ground Rules

• Definitions

• Provider Solicitation Guidelines

• Local Decision-making

• Criteria for CMHCs that provide services

• Evaluation

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Provider of Last Resort Contract Requirements-FY2004

TDMHMR required a Request for Information (RFI) to solicit provider interest in mental health and mental retardation services, and a summary of the information obtained.

Reference: Attachment IX Provider of Last Resort; amended 11/03

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Provider of Last Resort Contract Requirements-FY2005 Submit by October 1, 2004, a Provider of Last Resort Plan,

based on the considerations identified in §VI.H, to develop and available and appropriate provider base that is sufficient to meet the needs of consumers in the LSA, in accordance with THSC §533.035. The plan must include the following:

– 1. a summary of all responses to the LA’s RFI to solicit provider interest;

n .a listing of all the services for which the LA plans to contract, and

n timelines for implementation.

• The State and LA will amend the Contract to incorporate the timelines for implementation of the plan, as negotiated by the parties.

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Provider of Last Resort Contract Requirements - FY2006 & 2007

Authority Attachment

D. Resource Development and Management

8. Comply with the HHSC and DSHS directives and rules regarding the implementation of THSC §533.035(e) requiring local authorities to operate as providers of last resort; and

9. Submit by February 1, (2006 or) 2007, Contractor’s Provider Inventory, on Form V, in accordance with the Submission Calendar.