An LMHA may only provide services if one or more of the following conditions is present.
  (1) The LMHA determines that interested, qualified providers are not available to provide services in the LMHA's service area or that no providers meet procurement specifications.
  (2) The network of external providers does not provide the minimum level of individual choice. A minimal level of individual choice is present if individuals and their legally authorized representatives can choose from two or more qualified providers.
  (3) The network of external providers does not provide individuals with access to services that is equal to or better than the level of access in the local network, including services provided by the LMHA, as of a date determined by the department. An LMHA relying on this condition must submit the information necessary for the department to verify the level of access.
  (4) The combined volume of services delivered by external providers is not sufficient to meet 100 percent of the LMHA's service capacity for each level of care identified in the LMHA's plan.
  (5) Existing agreements restrict the LMHA's ability to contract with external providers for specific services during the two-year period covered by the LMHA's plan. If the LMHA relies on this condition, the department shall require the LMHA to submit copies of relevant agreements.
  (6) The LMHA documents that it is necessary for the LMHA to provide specified services during the two-year period covered by the LMHA's plan to preserve critical infrastructure needed to ensure continuous provision of services. An LMHA relying on this condition must:
    (A) document that it has evaluated a range of other measures to ensure continuous delivery of services, including but not limited to those identified by the LANAC and the department at the beginning of each planning cycle;
    (B) document implementation of appropriate other measures;
    (C) identify a timeframe for transitioning to an external provider network, during which the LMHA shall procure an increasing proportion of the service capacity from external provider in successive procurement cycles; and
    (D) give up its role as a service provider at the end of the transition period if the network has multiple external providers and the LMHA determines that external providers are willing and able to provide sufficient added service volume within a reasonable period of time to compensate for service volume lost should any one of the external provider contracts be terminated.

Source Note: The provisions of this §301.259 adopted to be effective January 1, 2015, 39 TexReg 10478; transferred effective March 15, 2020, as published in the February 21, 2020 issue of the Texas Register, 45 TexReg 1237