Requiring coverage of home and community-based services under the Medicaid program

(a) Definition of home and community-Based services (1) Inclusion as medical assistance Section 1905(a) of the Social Security Act (42 U.S.C. 1396d(a)) is amended— (A) in paragraph (31), by striking and at the end; (B) by redesignating paragraph (32) as paragraph (33); and (C) by inserting after paragraph (31) the following new paragraph: (32) home and community-based services (as defined in subsection (ll)); and. (2) Home and community-based services defined Section 1905 of the Social Security Act (42 U.S.C. 1396d) is amended by adding at the end the following new subsection: (ll) Home and community-Based services (1) In general For purposes of this title, the term home and community-based services means those services specified in paragraph (2) furnished to an eligible individual (as defined in paragraph (3)), based on an individualized assessment (as described in paragraph (4)) and person-centered service plan (as described in paragraph (4)(D)) for such individual, in a setting that— (A) meets the qualities specified in paragraph (1) of section 441.710(a) of title 42, Code of Federal Regulations (or a successor regulation); (B) is not described in paragraph (2) of such section (or a successor regulation); and (C) meets such other qualities as the Secretary determines appropriate in line with recommendations for additional services made by the advisory panel described in paragraph (2)(B) of this subsection. (2) Services specified (A) In general For purposes of paragraph (1), the services specified in this paragraph are services described in any of paragraphs (7), (8), (13)(C), (19), (20), (22), (24), (29), and (33) of subsection (a) of this section or in any of subsections (c)(4)(B), (c)(5), (k)(1)(A), (k)(1)(B), or (k)(1)(D) of section 1915, including the following: (i) Supported employment and integrated day services. (ii) Personal assistance, including personal care attendants, direct support professionals, home health aides, private duty nursing, homemakers and chore assistance, and companionship services. (iii) Services that enhance independence, inclusion, and full participation in the broader community. (iv) Non-emergency, non-medical transportation services to facilitate community integration. (v) Respite services provided in the individual’s home or broader community. (vi) Caregiver and family support services. (vii) Case management, including intensive case management, fiscal intermediary, and support brokerage services. (viii) Services that support person-centered planning and self-direction. (ix) Direct support services during acute hospitalizations. (x) Necessary medical and nursing services not otherwise covered that are necessary in order for the individual to remain in their home and community, including hospice services. (xi) Home and community-based intensive behavioral health and crisis intervention services. (xii) Peer support services. (xiii) Housing support, including transitional housing or transitional support services for individuals who are unhoused, and wrap-around services. (xiv) Necessary home modifications and assistive technology, including those that substitute for human assistance. (xv) Transition services to support an individual who is transitioning from an institutional setting to the community, including appropriate services for individuals who are unhoused or at risk of becoming unhoused, and including such transition services provided while the individual resides in an institution. (xvi) Nutrition services. (xvii) Assisted living services. (xviii) Any other service approved by the Secretary, pursuant to the recommendation of the advisory panel convened under subparagraph (B). (B) Specification of recommended services (i) In general Not later than 6 months after the date of the enactment of this subparagraph, and not less frequently than once every 5 years thereafter, the Secretary shall appoint an advisory panel for purposes of recommending additional services which may be included as home and community-based services under this paragraph. (ii) Composition (I) Selection The advisory panel shall be comprised of not less than 50 members and include representatives of the following categories, with the majority of all members being selected from the categories described in items (aa), (bb), and (cc): (aa) Individuals with disabilities receiving home and community-based services under this title and individuals with disabilities in need of such services, including those with physical disabilities, behavioral health disabilities, or intellectual or developmental disabilities, and including older adults, that are representative of multiple States, geographical locations, races, ethnicities, and other demographic factors. (bb) Beneficiary-led disability rights organizations. (cc) Disability-led organizations. (dd) Disabled veterans organizations. (ee) Disability organizations representing families. (ff) Organizations serving individuals with disabilities, including intellectual or developmental disabilities. (gg) Organizations serving older adults. (hh) Direct care workers and the labor organizations that represent such workers. (ii) The Protection and Advocacy System. (jj) The Centers for Independent Living. (kk) Health care providers. (ll) The National Association of Medicaid Directors. (mm) The National Association of State Directors of Developmental Disabilities Services. (nn) The National Association of State Mental Health Program Directors. (oo) Advancing States. (pp) The Centers for Medicare & Medicaid Services. (qq) The Administration for Community Living of the Department of Health and Human Services. (rr) Members of federally recognized tribes and tribally led organizations. (ss) Other relevant Federal, State, and local home and community-based service systems, as determined by the Secretary. (II) Requirement for proportionate representation The Secretary shall seek to ensure proportionate representation among each category described in items (dd) through (ss) of subclause (I) in convening the advisory panel. (iii) Duties (I) In general Not later than 2 years after an advisory panel is convened under clause (i), the advisory panel shall submit to the Secretary and to Congress a report recommending additional services which may be included as home and community-based services under this paragraph with the goal of increasing community integration and self-determination for individuals with disabilities receiving such services. (II) Considerations In developing recommendations, the advisory panel shall consider— (aa) available data on coverage gaps of needed home and community-based services, including compliance reporting required by section 441.311(d) of title 42, Code of Federal Regulations; (bb) new technology or innovations that could promote access to home and community-based services for individuals with disabilities and older adults; (cc) relevant data based on the latest Home and Community-Based Services Quality Measure Set established and updated by the Secretary pursuant to section 441.312 of title 42, Code of Federal Regulations; and (dd) other relevant research, data, or information that will help inform the adoption of home and community-based services for individuals with disabilities and older adults. (iv) Implementation of recommended additional services (I) In general The Secretary shall consider the recommendations made in a report submitted by the advisory panel pursuant to clause (iii)(I), and review any other relevant information, to identify additional services as home and community-based services pursuant to subparagraph (A)(xviii). (II) Considerations In determining which recommendations of the advisory panel to implement, the Secretary shall consider— (aa) available data on coverage gaps of needed home and community-based services, including compliance reporting required by section 411.311(d) of title 42, Code of Federal Regulations; (bb) new technology or innovations that could promote access to home and community-based services for individuals with disabilities; (cc) relevant data based on the latest Home and Community-Based Services Quality Measure Set established and updated by the Secretary pursuant to section 441.312 of title 42, Code of Federal Regulations; (dd) public comment about additional home and community-based services obtained through the public notice and comment process described in subclause (III); and (ee) other relevant research, data, or information that will help inform the adoption of home and community-based services for individuals with disabilities. (III) Notice and comment Not later than 1 year after an advisory panel is convened under clause (i), the Secretary shall establish a process for public notice and comment, including public hearings, sufficient to ensure a meaningful level of public input. (IV) Notification to State Medicaid Directors Not later than 1 year after the conclusion of the notice and comment process established by the Secretary pursuant to subclause (III), the Secretary shall issue a State Medicaid Director Letter to notify States of any additional home and community-based services approved by the Secretary for purposes of subparagraph (A)(xviii). (C) Private duty nursing defined For purposes of this paragraph, the term private duty nursing means nursing services that are sufficient to meet the needs of an individual who requires more individualized and continuous care than is available from a visiting nurse or routinely provided by the nursing staff of a hospital or skilled nursing facility, and includes services provided to an individual in the individual’s own home by a registered nurse or licensed practical nurse under the direction of a physician. (3) Eligible individual (A) In general For purposes of paragraph (1), the term eligible individual means— (i) an individual who is determined, on an annual basis or on a longer basis specified by the State, by a health care provider approved by the State under a process described in subparagraph (C) to have a functional impairment (as defined in subparagraph (B)) (not taking into account any items or services, or any other ameliorative measures, furnished to such individual to mitigate such impairment) that is expected to last at least 90 days; (ii) during the period that ends on the day before the first day of the first calendar quarter beginning on or after the date that is 5 years after the date of the enactment of this subsection, an individual who, as of such date of enactment, is receiving or has been determined to be eligible for home and community-based services under this title (or under a waiver or State plan option in effect under section 1915 or 1115, provided that the individual continues to meet any level of care requirement applicable under such waiver or State plan option); or (iii) an individual who is eligible under the State plan or a waiver of such plan and is under the age of 21. (B) Functional impairment For purposes of subparagraph (A)(i), the term functional impairment means, with respect to an individual, the inability of such individual to perform, without assistance— (i) 2 or more activities of daily living (as described in section 7702B(c)(2)(B) of the Internal Revenue Code of 1986); (ii) 2 or more instrumental activities of daily living (as defined for purposes of section 1915(k)(1)(A)); or (iii) 1 activity of daily living (as so described) and 1 instrumental activity of daily living (as so defined). (C) Health care provider State approval For purposes of subparagraph (A)(i), a process described in this subparagraph is a process established by the State to approve a health care provider to make a determination of functional impairment in accordance with such standards as the Secretary may prescribe. (4) Individualized assessment (A) In general For purposes of paragraph (1), an individualized assessment described in this paragraph is an independent assessment, with respect to an eligible individual— (i) to determine a necessary level of services and supports to be provided, consistent with the individual’s physical and health condition, including any functional impairments; (ii) to identify needed medical and non-medical services and supports; (iii) to inform development of a person-centered care plan (as described in subparagraph (D)) for the individual; (iv) that includes each of the elements described in clauses (ii) through (v) of section 1915(i)(1)(F); and (v) that occurs not later than 30 days after such individual is determined to be an eligible individual. (B) Reassessments An individualized assessment shall be conducted at least once every 12 months, and as needed when the individual’s support needs or circumstances change significantly, and an individual's person-centered service plan shall be revised as necessary to reflect the results of the most recent individualized assessment. (C) Presumption The individualized assessment described in subparagraph (A) shall be conducted with the presumption— (i) that each eligible individual, regardless of type or level of disability or service need, can be served in the individual’s own home and community; and (ii) at the option of the individual, that services may be self-directed (as defined in section 1915(i)(1)(G)(iii)(II)). (D) Person-centered care plan For purposes of subparagraph (A)(iii), a person-centered care plan described in this subparagraph is a written plan with respect to an individual that is developed in accordance with, and meets the requirements of, paragraphs (1) through (3) of section 441.301(c) of title 42, Code of Federal Regulations. (E) Standards An individualized assessment shall be conducted in accordance with standards specified by the Secretary to— (i) safeguard against conflicts of interest; (ii) specify qualifications for who may perform any such assessment; (iii) ensure transparency in the conducting of any such assessment, including ensuring the provision of the results of the assessment and, in plain language, any information necessary to interpret the methodology and results of the assessment; (iv) ensure that the methodology used in any such assessment is sound and evidence-based; (v) require such methodology to be made available on the public website of the State and tested for reliability and validity by an independent evaluator; (vi) require assessment tools to include language assistance services and compliance with Federal non-discrimination requirements, including— (I) the availability of such assessments in the individual’s primary language or with a qualified interpreter; (II) accessibility for individuals who are blind or have low-vision; (III) accessibility for deaf and hard-of-hearing individuals; and (IV) accessibility for individuals who cannot rely on speech to communicate; and (vii) ensure that any services and supports necessary for community integration are identified, involve professionals knowledgeable about the range of services and supports available in the community, and allow individuals getting assessed to present their own independent evidence of the appropriateness of an integrated setting.. (b) Mandatory benefit (1) In general Section 1902(a)(10)(A) of the Social Security Act (42 U.S.C. 1396a(a)(10)(A)) is amended by striking and (30) and inserting (30), and (32). (2) Effective date The amendment made by this subsection shall take effect on the first day of the first calendar quarter that begins on or after the date that is 5 years after the date of enactment of this Act. (c) Ensuring coverage of HCBS for all medicaid-Eligible individuals Section 1902(a)(10)(D) of the Social Security Act (42 U.S.C. 1396a(a)(10)(A)) is amended— (1) by inserting (i) after (D); (2) by adding and after the semicolon; and (3) by adding at the end the following new clause: (ii) beginning on the first day of the first calendar quarter that begins on or after the date that is 5 years after the date of enactment of this clause (or at such earlier date as the State may elect) for the inclusion of home and community-based services (as defined in section 1905(ll)) for any individual who— (I) is eligible for medical assistance under the State plan (or waiver of such plan); (II) is an eligible individual (as defined in such section); and (III) elects to receive such services.. (d) Federal medical assistance percentage for home and community-Based services Section 1905 of the Social Security Act (42 U.S.C. 1396d), as amended by subsection (a), is further amended— (1) in subsection (b), by striking and (ii) and inserting (ii), and (mm); and (2) by adding at the end the following new subsections: (mm) Specified Federal medical assistance percentage for home and community-Based services (1) In general Notwithstanding any other provision of law and except as provided in paragraph (3), the Federal medical assistance percentage for amounts expended for medical assistance for home and community-based services (as defined in subsection (ll)), including any such services furnished under a waiver in effect under section 1915 or 1115, on or after the date of the enactment of this subsection shall be equal to 100 percent for any State that meets the requirements of paragraph (2). (2) Access to essential home and community-based services As a condition of receiving the Federal medical assistance percentage described in paragraph (1), a State shall enhance, expand, or strengthen the level of and access to home and community-based services offered under the State plan under this title (or a waiver of such plan) as of the date of enactment of this subsection by doing each of the following: (A) Lowering or eliminating access barriers and disparities in access or utilization identified in the implementation plan described in section 1902(zz). (B) Using a program to ensure that an individual is not denied services based on the fact that the individual contacts the wrong entity (commonly referred to as a ‘No Wrong Door Program’), providing presumptive eligibility for home and community-based services, and improving home and community-based services counseling and education programs. (C) Providing supports to family caregivers, which shall include providing respite care and may include providing such services as caregiver assessments, peer supports, access to assistive technology, or paid family caregiving. (D) Adopting processes to ensure that payments for home and community-based services (including any payment to a direct care worker who delivers such services) are sufficient to ensure that care and services are available to the extent described in the implementation plan described in section 1902(zz). In carrying out this subparagraph, the State shall review and update payment rates for home and community-based services at least every 2 years, with an emphasis on ensuring that rates are adequate to recruit and retain a sufficient workforce to ensure access to the full set of services for eligible individuals as determined under subsection (ll) and through a transparent process involving meaningful input from stakeholders, including recipients of home and community-based services, family caregivers of such recipients, providers, health plans, direct care workers, chosen representatives of direct care workers, and aging, disability, and workforce advocates. (E) Developing a process to ensure that increases in payment rates for home and community-based services are— (i) at a minimum, proportionately passed through to direct care workers and in a manner that is determined with input from the stakeholders described in subparagraph (D); and (ii) incorporated into payment rates for home and community-based services provided under this title by a managed care entity (as defined in section 1932(a)(1)(B)) or a prepaid inpatient health plan or prepaid ambulatory health plan, as such terms are defined in section 438.2 of title 42, Code of Federal Regulations (or any successor regulation), under a contract with the State. (F) Updating, developing, and adopting qualification standards and training opportunities for the continuum of providers of home and community-based services, including programs for independent providers of such services and agency direct care workers, as well as unique programs and resources for family caregivers. (G) Establishing an entity to strengthen the infrastructure supporting the delivery of home and community-based services under consumer-directed models of care in accordance with the requirements of subsection (nn). (3) Exception The Federal medical assistance percentage applicable to medical assistance for home and community-based services furnished to an individual who is only eligible for medical assistance under a State plan or waiver on the basis of section 1902(a)(10)(A)(ii)(XXIV) shall be determined without regard to this subsection. (4) Administrative costs Notwithstanding the per centum specified in section 1903(a)(7), with respect to amounts expended for the first 4 fiscal quarters during which this subsection is implemented and each of the succeeding 16 fiscal quarters, for administrative costs for expanding and enhancing home and community-based services, including for enhancing the Medicaid data and technology infrastructure, modifying rate setting processes, adopting, using, and reporting quality measures, adopting or improving training programs for direct care workers and family caregivers, and adopting, carrying out, or enhancing programs that register qualified direct care workers or connect beneficiaries to qualified direct care workers under subsection (nn), such per centum shall be 80 percent. (nn) HCBS infrastructure To support self-Directed care models for the delivery of services For the purposes of paragraph (2)(G) of subsection (mm), the requirements of this subsection, with respect to a State and fiscal quarter, are that the State establishes, directly or by contract with 1 or more non-profit entities, a program to support self-directed models for the delivery of services for the performance of each of the following functions: (1) Registering qualified direct care workers and assisting beneficiaries in finding direct care workers to furnish home and community-based services. (2) Undertaking activities to recruit and train independent providers to enable beneficiaries to direct their own care, including by providing or coordinating training for beneficiaries on self-directed care. (3) Ensuring the safety of, and supporting the quality of, care provided to beneficiaries, such as by conducting background checks and addressing complaints reported by recipients of home and community-based services. (4) Facilitating coordination between State and local agencies and direct care workers for matters of public health, training opportunities, changes in program requirements, workplace health and safety, or related matters. (5) Supporting beneficiary hiring of independent providers of home and community-based services through an agency with choice or similar model, including by processing applicable tax information, collecting and processing timesheets, submitting claims, and processing payments to such providers. (6) To the extent a State permits beneficiaries to hire a family member or individual with whom they have an existing relationship to provide home and community-based services, providing support to beneficiaries who wish to hire a caregiver who is a family member or individual with whom they have an existing relationship, such as by facilitating enrollment of such family member or individual as a provider of home and community-based services under the State plan or a waiver of such plan. (7) Ensuring that program policies and procedures allow for cooperation with labor organizations that bargain on behalf of direct care workers in the case of a State in which the direct care workers in the State have elected to join, or form, such a labor organization, or, in the case of a State in which such workers have not joined or formed such a labor organization, are neutral with regard to such workers joining or forming such a labor organization.. (e) Conforming amendments (1) In general Title XIX of the Social Security Act (42 U.S.C. 1396 et seq.) is amended— (A) in section 1905(a), in the matter preceding the first numbered paragraph— (i) in each of clauses (xvi) and (xviii), by moving the left margin 2 ems to the left; and (ii) in clause (xvii), by inserting or who are described in section 1902(a)(10)(D) after a State plan amendment under such subsection; and (B) in section 1943(b)(5), by striking the State and all that follows through the period at the end and inserting a determination be conducted on an annual basis (or on such longer basis as specified by the State) in accordance with section 1905(ll) for purposes of providing home and community-based services under the State plan (or waiver of such plan).. (2) Effective date The amendments made by this subsection shall take effect on the first day of the first calendar quarter that begins on or after the date that is 5 years after the date of enactment of this Act.