S 1935 IS
106th CONGRESS
1st Session
S. 1935
To amend title XIX of the Social Security Act to provide for coverage of community attendant services and supports under the medicaid program.
IN THE SENATE OF THE UNITED STATES
November 16, 1999
Mr. HARKIN (for himself and Mr. SPECTER) introduced the following bill; which was read twice and referred to the Committee on Finance
A BILL
To amend title XIX of the Social Security Act to provide for coverage of community attendant services and supports under the medicaid program.
Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the `Medicaid Community Attendant Services and Supports Act of 1999'.
SEC. 2. FINDINGS, PURPOSES, AND POLICY.
(a) FINDINGS- Congress makes the following findings:
(1) Many studies have found that an overwhelming majority of individuals with disabilities needing long-term services and supports would prefer to receive them in home and community-based settings rather than in institutions. However, research on the provision of long-term services and supports under the medicaid program (conducted by and on behalf of the Department of Health and Human Services) has revealed a significant bias toward funding these services in institutional rather than home and community-based settings. The extent of this bias is indicated by the fact that 75 percent of medicaid funds for long-term services and supports are expended in nursing homes and intermediate care facilities for the mentally retarded while approximately 25 percent of such funds pays for services in home and community-based settings.
(2) Because of this bias, significant numbers of individuals with disabilities of all ages who would prefer to live in the community and could do so with community attendant services and supports are forced to live in unnecessarily segregated institutional settings if they want to receive needed services and supports. Benefit packages provided in these settings are medically-oriented and constitute barriers to the receipt of the types of services individuals need and want. Decisions regarding the provision of services and supports are too often influenced by what is reimbursable rather than by what individuals need and want.
(3) There is a growing recognition that disability is a natural part of the human experience that in no way diminishes an individual's right to--
(B) enjoy self-determination;
(D) contribute to society; and
(E) enjoy full inclusion and integration in the mainstream of American society.
(4) Long-term services and supports provided under the medicaid program must meet the evolving and changing needs and preferences of individuals with disabilities, including the preferences for living within one's own home or living with one's own family and becoming productive members of the community.
(5) The goals of the Nation properly include providing individuals with disabilities with--
(A) a meaningful choice of receiving long-term services and supports in the most integrated setting appropriate;
(B) the greatest possible control over the services received; and
(C) quality services that maximize social functioning in the home and community.
(b) PURPOSES- The purposes of this Act are as follows:
(1) To provide that States shall offer community attendant services and supports for eligible individuals with disabilities.
(2) To provide financial assistance to States to support systems change initiatives that are designed to assist each State in developing and enhancing a comprehensive consumer-responsive statewide system of long-term services and supports that provides real consumer choice and direction consistent with the principle that services and supports should be provided in the most integrated setting appropriate to meeting the unique needs of the individual.
(c) POLICY- It is the policy of the United States that all programs, projects, and activities receiving assistance under this Act shall be carried out in a manner consistent with the following principles:
(1) Individuals with disabilities, or, as appropriate, their representatives, must be empowered to exercise real choice in selecting long-term services and supports that are of high quality, cost-effective, and meet the unique needs of the individual in the most integrated setting appropriate.
(2) No individual should be forced into an institution to receive services that can be effectively and efficiently delivered in the home or community.
(3) Federal and State policies, practices, and procedures should facilitate and be responsive to, and not impede, an individual's choice in selecting long-term services and supports.
(4) Individuals and their families receiving long-term services and supports must be involved in decisionmaking about their own care and be provided with sufficient information to make informed choices.
SEC. 3. COVERAGE OF COMMUNITY ATTENDANT SERVICES AND SUPPORTS UNDER THE MEDICAID PROGRAM.
(a) REQUIRED COVERAGE FOR INDIVIDUALS ENTITLED TO NURSING FACILITY SERVICES OR ELIGIBLE FOR INTERMEDIATE CARE FACILITY SERVICES FOR THE MENTALLY RETARDED- Section 1902(a)(10)(D) of the Social Security Act (42 U.S.C. 1396a(a)(10)(D)) is amended--
(1) by inserting `(i)' after `(D)';
(2) by adding `and' after the semicolon; and
(3) by adding at the end the following:
`(ii) subject to section 1935, for the inclusion of community attendant services and supports for any individual who is eligible for medical assistance under the State plan and with respect to whom there has been a determination that the individual requires the level of care provided in a nursing facility or an intermediate care facility for the mentally retarded (whether or not coverage of such intermediate care facility is provided under the State plan) and who requires such community attendant services and supports based on functional need and without regard to age or disability;'.
(b) MEDICAID COVERAGE OF COMMUNITY ATTENDANT SERVICES AND SUPPORTS-
(1) IN GENERAL- Title XIX of the Social Security Act (42 U.S.C. 1396 et seq.) is amended--
(A) by redesignating section 1935 as section 1936; and
(B) by inserting after section 1934 the following:
`COMMUNITY ATTENDANT SERVICES AND SUPPORTS
`SEC. 1935. (a) DEFINITIONS- In this title:
`(1) COMMUNITY ATTENDANT SERVICES AND SUPPORTS-
`(A) IN GENERAL- The term `community attendant services and supports' means attendant services and supports furnished to an individual, as needed, to assist in accomplishing activities of daily living, instrumental activities of daily living, and health-related functions through hands-on assistance, supervision, or cueing--
`(i) under a plan of services and supports that is based on an assessment of functional need and that is agreed to by the individual or, as appropriate, the individual's representative;
`(ii) in a home or community setting, which may include a school, workplace, or recreation or religious facility, but does not include a nursing facility, an intermediate care facility for the mentally retarded, or other congregate facility;
`(iii) under an agency-provider model or other model (as defined in paragraph (2)(C)); and
`(iv) the furnishing of which is selected, managed, and dismissed by the individual, or, as appropriate, with assistance from the individual's representative.
`(B) INCLUDED SERVICES AND SUPPORTS- Such term includes--
`(i) tasks necessary to assist an individual in accomplishing activities of daily living, instrumental activities of daily living, and health-related functions;
`(ii) acquisition, maintenance, and enhancement of skills necessary for the individual to accomplish activities of daily living, instrumental activities of daily living, and health-related functions;
`(iii) backup systems or mechanisms (such as the use of beepers) to ensure continuity of services and supports; and
`(iv) voluntary training on how to select, manage, and dismiss attendants.
`(C) EXCLUDED SERVICES AND SUPPORTS- Subject to subparagraph (D), such term does not include--
`(i) provision of room and board for the individual;
`(ii) special education and related services provided under the Individuals with Disabilities Education Act and vocational rehabilitation services provided under the Rehabilitation Act of 1973;
`(iii) assistive technology devices and assistive technology services;
`(iv) durable medical equipment; or
`(D) FLEXIBILITY IN TRANSITION TO COMMUNITY-BASED HOME SETTING- Such term may include expenditures for transitional costs, such as rent and utility deposits, first months's rent and utilities, bedding, basic kitchen supplies, and other necessities required for an individual to make the transition from a nursing facility or intermediate care facility for the mentally retarded to a community-based home setting where the individual resides.
`(2) ADDITIONAL DEFINITIONS-
`(A) ACTIVITIES OF DAILY LIVING- The term `activities of daily living' includes eating, toileting, grooming, dressing, bathing, and transferring.
`(B) CONSUMER DIRECTED- The term `consumer directed' means a method of providing services and supports that allow the individual, or where appropriate, the individual's representative, maximum control of the community attendant services and supports, regardless of who acts as the employer of record.
`(i) AGENCY-PROVIDER MODEL- The term `agency-provider model' means, with respect to the provision of community attendant services and supports for an individual, a method of providing consumer-directed services and supports under which entities contract for the provision of such services and supports.
`(ii) OTHER MODELS- The term `other models' means methods, other than an agency-provider model, for the provision of consumer-directed services and supports. Such models may include the provision of vouchers, direct cash payments, or use of a fiscal agent to assist in obtaining services.
`(D) HEALTH-RELATED FUNCTIONS- The term `health-related functions' means functions that can be delegated or assigned by licensed health-care professionals under State law to be performed by an attendant.
`(E) INSTRUMENTAL ACTIVITIES OF DAILY LIVING- The term `instrumental activities of daily living' includes meal planning and preparation, managing finances, shopping for food, clothing and other essential items, performing essential household chores, communicating by phone and other media, and getting around and participating in the community.
`(F) INDIVIDUAL'S REPRESENTATIVE- The term `individual's representative' means a parent, a family member, a guardian, an advocate, or an authorized representative of an individual.
`(b) LIMITATION ON AMOUNTS OF EXPENDITURES UNDER THIS TITLE- In carrying out section 1902(a)(10)(D)(ii), a State shall permit an individual who has a level of severity of physical or mental impairment that entitles such individual to medical assistance with respect to nursing facility services or qualifies the individual for intermediate care facility services for the mentally retarded to choose to receive medical assistance for community attendant services and supports (rather than medical assistance for such institutional services and supports), in
the most integrated setting appropriate to the needs of the individual, so long as the aggregate amount of the Federal expenditures for community attendant services and supports for all such individuals in a fiscal year does not exceed the total that would have been expended for such individuals to receive such institutional services and supports in the year.
`(c) MAINTENANCE OF EFFORT- With respect to a fiscal year quarter, no Federal funds may be paid to a State for medical assistance provided to individuals described in section 1902(a)(10)(D)(ii) for such fiscal year quarter if the Secretary determines that the total of the State expenditures for programs to enable such individuals with disabilities to receive community attendant services and supports (or services and supports that are similar to such services and supports) under other provisions of this title for the preceding fiscal year quarter is less than the total of such expenditures for the same fiscal year quarter for the preceding fiscal year.
`(d) STATE QUALITY ASSURANCE PROGRAM- In order to continue to receive Federal financial participation for providing community attendant services and supports under this section, a State shall, at a minimum, establish and maintain a quality assurance program that provides for the following:
`(1) The State shall establish requirements, as appropriate, for agency-based and other models that include--
`(A) minimum qualifications and training requirements, as appropriate for agency-based and other models;
`(B) financial operating standards; and
`(C) an appeals procedure for eligibility denials and a procedure for resolving disagreements over the terms of an individualized plan.
`(2) The State shall modify the quality assurance program, where appropriate, to maximize consumer independence and consumer direction in both agency-provided and other models.
`(3) The State shall provide a system that allows for the external monitoring of the quality of services by entities consisting of consumers and their representatives, disability organizations, providers, family, members of the community, and others.
`(4) The State provides ongoing monitoring of the health and well-being of each recipient.
`(5) The State shall require that quality assurance mechanisms appropriate for the individual should be included in the individual's written plan.
`(6) The State shall establish a process for mandatory reporting, investigation, and resolution of allegations of neglect, abuse, or exploitation.
`(7) The State shall obtain meaningful consumer input, including consumer surveys, that measure the extent to which a participant receives the services and supports described in the individual's plan and the participant's satisfaction with such services and supports.
`(8) The State shall make available to the public the findings of the quality assurance program.
`(9) The State shall establish an on-going public process for the development, implementation, and review of the State's quality assurance program.
`(10) The State shall develop and implement a program of sanctions.
`(e) FEDERAL ROLE IN QUALITY ASSURANCE- The Secretary shall conduct a periodic sample review of outcomes for individuals based upon the individual's plan of support and based upon the quality assurance program of the State. The Secretary may conduct targeted reviews upon receipt of allegations of neglect, abuse, or exploitation. The Secretary shall develop guidelines for States to use in developing sanctions.
`(f) REQUIREMENT TO EXPAND ELIGIBILITY- Effective October 1, 2000, a State may not exercise the option of coverage of individuals under section 1902(a)(10)(A)(ii)(V) without providing coverage under section 1902(a)(10)(A)(ii)(VI).
`(g) REPORT ON IMPACT OF SECTION- The Secretary shall submit to Congress periodic reports on the impact of this section on beneficiaries, States, and the Federal Government.'.
(c) INCLUSION IN OPTIONAL ELIGIBILITY CLASSIFICATION- Section 1902(a)(10)(A)(ii)(VI) of the Social Security Act (42 U.S.C. 1396a(a)(10)(A)(ii)(VI)) is amended by inserting `or community attendant services and supports described in section 1935' after `section 1915' each place such term appears.
(d) COVERAGE AS MEDICAL ASSISTANCE-
(1) IN GENERAL- Section 1905(a) of the Social Security Act (42 U.S.C. 1396d) is amended--
(A) by striking `and' at the end of paragraph (26);
(B) by redesignating paragraph (27) as paragraph (28); and
(C) by inserting after paragraph (26) the following:
`(27) community attendant services and supports (to the extent allowed and as defined in section 1935); and'.
(2) CONFORMING AMENDMENTS-
(A) Section 1902(j) of the Social Security Act (42 U.S.C. 1396a(j)) is amended by striking `of of' and inserting `of'.
(B) Section 1902(a)(10)(C)(iv) of the Social Security Act (42 U.S.C. 1396a(a)(10)(C)(iv)) is amended by inserting `and (27)' after `(24)'.
SEC. 4. GRANTS TO DEVELOP AND ESTABLISH REAL CHOICE SYSTEMS CHANGE INITIATIVES.
(1) IN GENERAL- The Secretary of Health and Human Services (referred to in this section as the `Secretary') shall award grants described in subsection (b) to States to support real choice systems change initiatives that establish specific action steps and specific timetables to provide consumer-responsive long term services and supports to eligible individuals in the most integrated setting appropriate based on the unique strengths and needs of the individual and the priorities and concerns of the individual (or, as appropriate, the individual's representative).
(2) ELIGIBILITY- To be eligible for a grant under this section, a State shall--
(A) establish the Consumer Task Force in accordance with subsection (d); and
(B) submit an application at such time, in such manner, and containing such information as the Secretary may determine. The application shall be jointly developed and signed by the designated State official and the chairperson of such Task Force, acting on behalf of and at the direction of the Task Force.
(3) DEFINITION OF STATE- In this section, the term `State' means each of the 50 States, the District of Columbia, Puerto Rico, Guam, the United States Virgin Islands, American Samoa, and the Commonwealth of the Northern Mariana Islands.
(b) GRANTS FOR REAL CHOICE SYSTEMS CHANGE INITIATIVES-
(1) IN GENERAL- From funds appropriated under subsection (f), the Secretary shall award grants to States to--
(A) support the establishment, implementation, and operation of the State real choice systems change initiatives described in subsection (a); and
(B) conduct outreach campaigns regarding the existence of such initiatives.
(2) DETERMINATION OF AWARDS; STATE ALLOTMENTS- The Secretary shall develop a formula for the distribution of funds to States for each fiscal year under subsection (a). Such formula shall give preference to States that have a relatively higher proportion of long-term services and supports furnished to individuals in an institutional setting but who have a plan described in an application submitted under subsection (a)(2).
(c) AUTHORIZED ACTIVITIES- A State that receives a grant under this section shall use the funds made available through the grant to accomplish the purposes described in subsection (a) and, in accomplishing such purposes, may carry out any of the following systems change activities:
(1) NEEDS ASSESSMENT AND DATA GATHERING- The State may use funds to conduct a statewide needs assessment that may be based on data in existence on the date on which the assessment is initiated and may include information about the number of individuals within the State who are receiving long-term services and supports in unnecessarily segregated settings, the nature and extent to which current programs respond to the preferences of individuals with disabilities to receive services in home and community-based settings as well as in institutional settings, and the expected change in demand for services provided in home and community settings as well as institutional settings.
(2) INSTITUTIONAL BIAS- The State may use funds to identify, develop, and implement strategies for modifying policies, practices, and procedures that unnecessarily bias the provision of long-term services and supports toward institutional settings and away from home and community-based settings, including policies, practices, and procedures governing statewideness, comparability in amount, duration, and scope of services, financial eligibility, individualized functional assessments and screenings (including individual and family involvement), and knowledge about service options.
(3) OVER MEDICALIZATION OF SERVICES- The State may use funds to identify, develop, and implement strategies for modifying policies, practices, and procedures that unnecessarily bias the provision of long-term services and supports by health care professionals to the extent that quality services and supports can be provided by other qualified individuals, including policies, practices, and procedures governing service authorization, case management, and service coordination, service delivery options, quality controls, and supervision and training.
(4) INTERAGENCY COORDINATION; SINGLE POINT OF ENTRY- The State may support activities to identify and coordinate Federal and State policies, resources, and services, relating to the provision of long-term services and supports, including the convening of interagency work groups and the entering into of interagency agreements that provide for a single point of entry and the design and implementation of a coordinated screening and assessment system for all persons eligible for long-term services and supports.
(5) TRAINING AND TECHNICAL ASSISTANCE- The State may carry out directly, or may provide support to a public or private entity to carry out training and technical assistance activities that are provided for individuals with disabilities, and, as appropriate, their representatives, attendants, and other personnel (including professionals, paraprofessionals, volunteers, and other members of the community).
(6) PUBLIC AWARENESS- The State may support a public awareness program that is designed to provide information relating to the availability of choices available to individuals with disabilities for receiving long-term services and support in the most integrated setting appropriate.
(7) DOWNSIZING OF LARGE INSTITUTIONS- The State may use funds to support the per capita increased fixed costs in institutional settings directly related to the movement of individuals with disabilities out of specific facilities and into community-based settings.
(8) TRANSITIONAL COSTS- The State may use funds to provide transitional costs described in section 1935(a)(1)(D) of the Social Security Act, as added by this Act.
(9) TASK FORCE- The State may use funds to support the operation of the Consumer Task Force established under subsection (d).
(10) DEMONSTRATIONS OF NEW APPROACHES- The State may use funds to conduct, on a time-limited basis, the demonstration of new
approaches to accomplishing the purposes described in subsection (a).
(11) OTHER ACTIVITIES- The State may use funds for any systems change activities that are not described in any of the preceding paragraphs of this subsection and that are necessary for developing, implementing, or evaluating the comprehensive statewide system of long term services and supports.
(1) ESTABLISHMENT AND DUTIES- To be eligible to receive a grant under this section, each State shall establish a Consumer Task Force (referred to in this section as the `Task Force') to assist the State in the development, implementation, and evaluation of real choice systems change initiatives.
(2) APPOINTMENT- Members of the Task Force shall be appointed by the Chief Executive Officer of the State in accordance with the requirements of paragraph (3), after the solicitation of recommendations from representatives of organizations representing a broad range of individuals with disabilities and organizations interested in individuals with disabilities.
(A) IN GENERAL- The Task Force shall represent a broad range of individuals with disabilities from diverse backgrounds and shall include representatives from Developmental Disabilities Councils, State Independent Living Councils, Commissions on Aging, organizations that provide services to individuals with disabilities and consumers of long-term services and supports.
(B) INDIVIDUALS WITH DISABILITIES- A majority of the members of the Task Force shall be individuals with disabilities or the representatives of such individuals.
(C) LIMITATION- The Task Force shall not include employees of any State agency providing services to individuals with disabilities other than employees of agencies described in the Developmental Disabilities Assistance and Bill of Rights Act (42 U.S.C. 6000 et seq.).
(e) AVAILABILITY OF FUNDS-
(1) FUNDS ALLOTTED TO STATES- Funds allotted to a State under a grant made under this section for a fiscal year shall remain available until expended.
(2) FUNDS NOT ALLOTTED TO STATES- Funds not allotted to States in the fiscal year for which they are appropriated shall remain available in succeeding fiscal years for allotment by the Secretary using the allotment formula established by the Secretary under subsection (b)(2).
(f) ANNUAL REPORT- A State that receives a grant under this section shall submit an annual report to the Secretary on the use of funds provided under the grant. Each report shall include the percentage increase in the number of eligible individuals in the State who receive long-term services and supports in the most integrated setting appropriate, including through community attendant services and supports and other community-based settings.
(g) APPROPRIATION- Out of any funds in the Treasury not otherwise appropriated, there is authorized to be appropriated and there is appropriated to make grants under this section for--
(1) fiscal year 2001, $25,000,000; and
(2) for fiscal year 2002 and each fiscal year thereafter, such sums as may be necessary to carry out this section.
SEC. 5. STATE OPTION FOR ELIGIBILITY FOR INDIVIDUALS.
(a) IN GENERAL- Section 1903(f) of the Social Security Act (42 U.S.C. 1396b(f)) is amended--
(1) in paragraph (4)(C), by inserting `subject to paragraph (5),' after `does not exceed', and
(2) by adding at the end the following:
`(5)(A) A State may waive the income, resources, and deeming limitations described in paragraph (4)(C) in such cases as the State finds the potential for employment opportunities would be enhanced through the provision of medical assistance for community attendant services and supports in accordance with section 1935.
`(B) In the case of an individual who is eligible for medical assistance described in subparagraph (A) only as a result of the application of such subparagraph, the State may, notwithstanding section 1916(b), impose a premium based on a sliding scale related to income.'.
(b) EFFECTIVE DATE- The amendments made by subsection (a) shall apply to medical assistance provided for community attendant services and supports described in section 1935 of the Social Security Act furnished on or after October 1, 2000.
SEC. 6. STUDIES AND REPORTS.
(a) REVIEW OF, AND REPORT ON, REGULATIONS- The National Council on Disability established under title IV of the Rehabilitation Act of 1973 (29 U.S.C. 780 et seq.) shall review regulations in existence under title XIX of the Social Security Act (42 U.S.C. 1396 et seq.) on the date of enactment of this Act insofar as such regulations regulate the provision of home health services, personal care services, and other services in home and community-based settings and, not later than 1 year after such date, submit a report to Congress on the results of such study, together with any recommendations for legislation that the Council determines to be appropriate as a result of the study.
(b) REPORT ON REDUCED TITLE XIX EXPENDITURES- Not later than 1 year after the date of enactment of this Act, the Secretary of Health and Human Services shall submit to Congress a report on how expenditures under the medicaid program under title XIX of the Social Security Act (42 U.S.C. 1396 et seq.) can be reduced by the furnishing of community attendant services and supports in accordance with section 1935 of such Act (as added by section 3 of this Act).
SEC. 7. TASK FORCE ON FINANCING OF LONG-TERM CARE SERVICES.
The Secretary of Health and Human Services shall establish a task force to examine appropriate methods for financing long-term services and supports. The task force shall include significant representation of individuals (and representatives of individuals) who receive such services and supports.
END