S AMDT 1256

S 1256 IS

To amend title XIX of the Social Security Act to establish financial incentives for States to expand the provision of long-term services and supports to Medicaid beneficiaries who do not reside in an institution, and for other purposes.

June 11, 2009

Ms. CANTWELL (for herself and Mr. KOHL) introduced the following bill; which was read twice and referred to the Committee on Finance

To amend title XIX of the Social Security Act to establish financial incentives for States to expand the provision of long-term services and supports to Medicaid beneficiaries who do not reside in an institution, and for other purposes.

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,

SECTION 1. SHORT TITLE; TABLE OF CONTENTS.

(a) Short Title- This Act may be cited as the ‘Home and Community Balanced Incentives Act of 2009’.

(b) Table of Contents- The table of contents for this Act is as follows:

Sec. 1. Short title; table of contents.

TITLE I--BALANCING INCENTIVES

Sec. 101. Enhanced FMAP for expanding the provision of non-institutionally-based long-term services and supports.

TITLE II--STRENGTHENING THE MEDICAID HOME AND COMMUNITY-BASED STATE PLAN AMENDMENT OPTION

Sec. 201. Removal of barriers to providing home and community-based services under State plan amendment option for individuals in need.

Sec. 202. Mandatory application of spousal impoverishment protections to recipients of home and community-based services.

Sec. 203. State authority to elect to exclude up to 6 months of average cost of nursing facility services from assets or resources for purposes of eligibility for home and community-based services.

TITLE III--COORDINATION OF HOME AND COMMUNITY-BASED WAIVERS

Sec. 301. Streamlined process for combined waivers under subsections (b) and (c) of section 1915.

TITLE I--BALANCING INCENTIVES

SEC. 101. ENHANCED FMAP FOR EXPANDING THE PROVISION OF NON-INSTITUTIONALLY-BASED LONG-TERM SERVICES AND SUPPORTS.

(a) Enhanced FMAP To Encourage Expansion- Section 1905 of the Social Security Act (42 U.S.C. 1396d) is amended--

(1) in the first sentence of subsection (b)--

(A) by striking ‘, and (4)’ and inserting ‘, (4)’; and

(B) by inserting before the period the following: ‘, and (5) in the case of a balancing incentive payment State, as defined in subsection (y)(1), that meets the conditions described in subsection (y)(2), the Federal medical assistance percentage shall be increased by the applicable number of percentage points determined under subsection (y)(3) for the State with respect to medical assistance described in subsection (y)(4)’; and

(2) by adding at the end the following new subsection:

‘(y) State Balancing Incentive Payments Program- For purposes of clause (5) of the first sentence of subsection (b):

‘(1) BALANCING INCENTIVE PAYMENT STATE- A balancing incentive payment State is a State--

‘(A) in which less than 50 percent of the total expenditures for medical assistance for fiscal year 2009 for long-term services and supports (as defined by the Secretary, subject to paragraph (5)) are for non-institutionally-based long-term services and supports described in paragraph (5)(B);

‘(B) that submits an application and meets the conditions described in paragraph (2); and

‘(C) that is selected by the Secretary to participate in the State balancing incentive payment program established under this subsection.

‘(2) CONDITIONS- The conditions described in this paragraph are the following:

‘(A) APPLICATION- The State submits an application to the Secretary that includes the following:

‘(i) A description of the availability of non-institutionally-based long-term services and supports described in paragraph (5)(B) available (for fiscal years beginning with fiscal year 2009).

‘(ii) A description of eligibility requirements for receipt of such services.

‘(iii) A projection of the number of additional individuals that the State expects to provide with such services to during the 5-fiscal-year period that begins with fiscal year 2011.

‘(iv) An assurance of the State’s commitment to a consumer-directed long-term services and supports system that values quality of life in addition to quality of care and in which beneficiaries are empowered to choose providers and direct their own care as much as possible.

‘(v) A proposed budget that details the State’s plan to expand and diversify medical assistance for non-institutionally-based long-term services and supports described in paragraph (5)(B) during such 5-fiscal-year period, and that includes--

‘(I) a description of the new or expanded offerings of such services that the State will provide; and

‘(II) the projected costs of the services identified in subclause (I).

‘(vi) A description of how the State intends to achieve the target spending percentage applicable to the State under subparagraph (B).

‘(vii) An assurance that the State will not use Federal funds, revenues described in section 1903(w)(1), or revenues obtained through the imposition of beneficiary cost-sharing for medical assistance for non-institutionally-based long-term services and supports described in paragraph (5)(B) for the non-Federal share of expenditures for medical assistance described in paragraph (4).

‘(B) TARGET SPENDING PERCENTAGES-

‘(i) In the case of a balancing incentive payment State in which less than 25 percent of the total expenditures for home and community-based services under the State plan and the various waiver authorities for fiscal year 2009 are for such services, the target spending percentage for the State to achieve by not later than October 1, 2015, is that 25 percent of the total expenditures for home and community-based services under the State plan and the various waiver authorities are for such services.

‘(ii) In the case of any other balancing incentive payment State, the target spending percentage for the State to achieve by not later than October 1, 2015, is that 50 percent of the total expenditures for home and community-based services under the State plan and the various waiver authorities are for such services.

‘(C) MAINTENANCE OF ELIGIBILITY REQUIREMENTS- The State does not apply eligibility standards, methodologies, or procedures for determining eligibility for medical assistance for non-institutionally-based long-term services and supports described in paragraph (5)(B)) that are more restrictive than the eligibility standards, methodologies, or procedures in effect for such purposes on December 31, 2010.

‘(D) USE OF ADDITIONAL FUNDS- The State agrees to use the additional Federal funds paid to the State as a result of this subsection only for purposes of providing new or expanded offerings of non-institutionally-based long-term services and supports described in paragraph (5)(B) (including expansion through offering such services to increased numbers of beneficiaries of medical assistance under this title).

‘(E) STRUCTURAL CHANGES- The State agrees to make, not later than the end of the 6-month period that begins on the date the State submits and application under this paragraph, such changes to the administration of the State plan (and, if applicable, to waivers approved for the State that involve the provision of long-term care services and supports) as the Secretary determines, by regulation or otherwise, are essential to achieving an improved balance between the provision of non-institutionally-based long-term services and supports described in paragraph (5)(B) and other long-term services and supports, and which shall include the following:

‘(i) ‘NO WRONG DOOR’--SINGLE ENTRY POINT SYSTEM- Development of a statewide system to enable consumers to access all long-term services and supports through an agency, organization, coordinated network, or portal, in accordance with such standards as the State shall establish and that--

‘(I) shall require such agency, organization, network, or portal to provide--

‘(aa) consumers with information regarding the availability of such services, how to apply for such services, and other referral services; and

‘(bb) information regarding, and make recommendations for, providers of such services; and

‘(II) may, at State option, permit such agency, organization, network, or portal to--

‘(aa) determine financial and functional eligibility for such services and supports; and

‘(bb) provide or refer eligible individuals to services and supports otherwise available in the community (under programs other than the State program under this title), such as housing, job training, and transportation.

‘(ii) PRESUMPTIVE ELIGIBILITY- At the option of the State, provision of a 60-day period of presumptive eligibility for medical assistance for non-institutionally-based long-term services and supports described in paragraph (5)(B) for any individual whom the State has reason to believe will qualify for such medical assistance (provided that any expenditures for such medical assistance during such period are disregarded for purposes of determining the rate of erroneous excess payments for medical assistance under section 1903(u)(1)(D)).

‘(iii) CASE MANAGEMENT- Development, in accordance with guidance from the Secretary, of conflict-free case management services to--

‘(I) address transitioning from receipt of institutionally-based long-term services and supports described in paragraph (5)(A) to receipt of non-institutionally-based long-term services and supports described in paragraph (5)(B); and

‘(II) in conjunction with the beneficiary, assess the beneficiary’s needs and, if appropriate, the needs of family caregivers for the beneficiary, and develop a service plan, arrange for services and supports, support the beneficiary (and, if appropriate, the caregivers) in directing the provision of services and supports, for the beneficiary, and conduct ongoing monitoring to assure that services and supports are delivered to meet the beneficiary’s needs and achieve intended outcomes.

‘(iv) CORE STANDARDIZED ASSESSMENT INSTRUMENTS- Development of core standardized assessment instruments for determining eligibility for non-institutionally-based long-term services and supports described in paragraph (5)(B), which shall be used in a uniform manner throughout the State, to--

‘(I) assess a beneficiary’s eligibility and functional level in terms of relevant areas that may include medical, cognitive, and behavioral status, as well as daily living skills, and vocational and communication skills;

‘(II) based on the assessment conducted under subclause (I), determine a beneficiary’s needs for training, support services, medical care, transportation, and other services, and develop an individual service plan to address such needs;

‘(III) conduct ongoing monitoring based on the service plan; and

‘(IV) require reporting of collect data for purposes of comparison among different service models.

‘(F) DATA COLLECTION- Collecting from providers of services and through such other means as the State determines appropriate the following data:

‘(i) SERVICES DATA- Services data from providers of non-institutionally-based long-term services and supports described in paragraph (5)(B) on a per-beneficiary basis and in accordance with such standardized coding procedures as the State shall establish in consultation with the Secretary.

‘(ii) QUALITY DATA- Quality data on a selected set of core quality measures agreed upon by the Secretary and the State that are linked to population-specific outcomes measures and accessible to providers.

‘(iii) OUTCOMES MEASURES- Outcomes measures data on a selected set of core population-specific outcomes measures agreed upon by the Secretary and the State that are accessible to providers and include--

‘(I) measures of beneficiary and family caregiver experience with providers;

‘(II) measures of beneficiary and family caregiver satisfaction with services; and

‘(III) measures for achieving desired outcomes appropriate to a specific beneficiary, including employment, participation in community life, health stability, and prevention of loss in function.

‘(3) APPLICABLE NUMBER OF PERCENTAGE POINTS INCREASE IN FMAP- The applicable number of percentage points are--

‘(A) in the case of a balancing incentive payment State subject to the target spending percentage described in paragraph (2)(B)(i), 5 percentage points; and

‘(B) in the case of any other balancing incentive payment State, 2 percentage points.

‘(4) ELIGIBLE MEDICAL ASSISTANCE EXPENDITURES-

‘(A) IN GENERAL- Subject to subparagraph (B), medical assistance described in this paragraph is medical assistance for non-institutionally-based long-term services and supports described in paragraph (5)(B) that is provided during the period that begins on October 1, 2011, and ends on September 30, 2015.

‘(B) LIMITATION ON PAYMENTS- In no case may the aggregate amount of payments made by the Secretary to balancing incentive payment States under this subsection during the period described in subparagraph (A), or to a State to which paragraph (6) of the first sentence of subsection (b) applies, exceed $3,000,000,000.

‘(5) LONG-TERM SERVICES AND SUPPORTS DEFINED- In this subsection, the term ‘long-term services and supports’ has the meaning given that term by Secretary and shall include the following:

‘(A) INSTITUTIONALLY-BASED LONG-TERM SERVICES AND SUPPORTS- Services provided in an institution, including the following:

‘(i) Nursing facility services.

‘(ii) Services in an intermediate care facility for the mentally retarded described in subsection (a)(15).

‘(B) NON-INSTITUTIONALLY-BASED LONG-TERM SERVICES AND SUPPORTS- Services not provided in an institution, including the following:

‘(i) Home and community-based services provided under subsection (c), (d), or (i), of section 1915 or under a waiver under section 1115.

‘(ii) Home health care services.

‘(iii) Personal care services.

‘(iv) Services described in subsection (a)(26) (relating to PACE program services).

‘(v) Self-directed personal assistance services described in section 1915(j)’.

(b) Enhanced FMAP for Certain States To Maintain the Provision of Home and Community-Based Services- The first sentence of section 1905(b) of such Act (42 U.S.C. 1396d (b)), as amended by subsection (a), is amended

(1) by striking ‘, and (5)’ and inserting ‘, (5)’; and

(2) by inserting before the period the following: ‘, and (6) in the case of a State in which at least 50 percent of the total expenditures for medical assistance for fiscal year 2009 for long-term services and supports (as defined by the Secretary for purposes of subsection (y)) are for non-institutionally-based long-term services and supports described in subsection (y)(5)(B), and which satisfies the requirements of subparagraphs (A) (other than clauses (iii), (v), and (vi)), (C), and (F) of subsection (y)(2), and has implemented the structural changes described in each clause of subparagraph (E) of that subsection, the Federal medical assistance percentage shall be increased by 1 percentage point with respect to medical assistance described in subparagraph (A) of subsection (y)(4) (but subject to the limitation described in subparagraph (B) of that subsection)’.

(c) Grants To Support Structural Changes-

(1) IN GENERAL- The Secretary of Health and Human Services shall award grants to States for the following purposes:

(A) To support the development of common national set of coding methodologies and databases related to the provision of non-institutionally-based long-term services and supports described in paragraph (5)(B) of section 1905(y) of the Social Security Act (as added by subsection (a)).

(B) To make structural changes described in paragraph (2)(E) of section 1905(y) to the State Medicaid program.

(2) PRIORITY- In awarding grants for the purpose described in paragraph (1)(A), the Secretary of Health and Human Services shall give priority to States in which at least 50 percent of the total expenditures for medical assistance under the State Medicaid program for fiscal year 2009 for long-term services and supports, as defined by the Secretary for purposes of section 1905(y) of the Social Security Act, are for non-institutionally-based long-term services and supports described in paragraph (5)(B) of such section.

(3) COLLABORATION- States awarded a grant for the purpose described in paragraph (1)(A) shall collaborate with other States, the National Governor’s Association, the National Conference of State Legislatures, the National Association of State Medicaid Directors, the National Association of State Directors of Developmental Disabilities, and other appropriate organizations in developing specifications for a common national set of coding methodologies and databases.

(4) AUTHORIZATION OF APPROPRIATIONS- There are authorized to be appropriated to carry out this subsection, such sums as may be necessary for each of fiscal years 2010 through 2012.

(d) Authority for Individualized Budgets Under Waivers To Provide Home and Community-Based Services- In the case of any waiver to provide home and community-based services under subsection (c) or (d) of section 1915 of the Social Security Act (42 U.S.C. 1396n) or section 1115 of such Act (42 U.S.C. 1315), that is approved or renewed after the date of enactment of this Act, the Secretary of Health and Human Services shall permit a State to establish individualized budgets that identify the dollar value of the services and supports to be provided to an individual under the waiver.

(e) Oversight and Assessment-

(1) DEVELOPMENT OF STANDARDIZED REPORTING REQUIREMENTS-

(A) STANDARDIZATION OF DATA AND OUTCOME MEASURES- The Secretary of Health and Human Services shall consult with States and the National Governor’s Association, the National Conference of State Legislatures, the National Association of State Medicaid Directors, the National Association of State Directors of Developmental Disabilities, and other appropriate organizations to develop specifications for standardization of--

(i) reporting of assessment data for long-term services and supports (as defined by the Secretary for purposes of section 1905(y)(5) of the Social Security Act) for each population served, including information standardized for purposes of certified EHR technology (as defined in section 1903(t)(3)(A) of the Social Security Act (42 U.S.C. 1396b(t)(3)(A)) and under other electronic medical records initiatives; and

(ii) outcomes measures that track assessment processes for long-term services and supports (as so defined) for each such population that maintain and enhance individual function, independence, and stability.

(2) ADMINISTRATION OF HOME AND COMMUNITY SERVICES- The Secretary of Health and Human Services shall promulgate regulations to ensure that all States develop service systems that are designed to--

(A) allocate resources for services in a manner that is responsive to the changing needs and choices of beneficiaries receiving non-institutionally-based long-term services and supports described in paragraph (5)(B) of section 1905(y) of the Social Security Act (as added by subsection (a)) (including such services and supports that are provided under programs other the State Medicaid program), and that provides strategies for beneficiaries receiving such services to maximize their independence;

(B) provide the support and coordination needed for a beneficiary in need of such services (and their family caregivers or representative, if applicable) to design an individualized, self-directed, community-supported life; and

(C) improve coordination among all providers of such services under federally and State-funded programs in order to--

(i) achieve a more consistent administration of policies and procedures across programs in relation to the provision of such services; and

(ii) oversee and monitor all service system functions to assure--

(I) coordination of, and effectiveness of, eligibility determinations and individual assessments; and

(II) development and service monitoring of a complaint system, a management system, a system to qualify and monitor providers, and systems for role-setting and individual budget determinations.

(3) MONITORING- The Secretary of Health and Human Services shall assess on an ongoing basis and based on measures specified by the Agency for Healthcare Research and Quality, the safety and quality of non-institutionally-based long-term services and supports described in paragraph (5)(B) of section 1905(y) of that Act provided to beneficiaries of such services and supports and the outcomes with regard to such beneficiaries’ experiences with such services. Such oversight shall include examination of--

(A) the consistency, or lack thereof, of such services in care plans as compared to those services that were actually delivered; and

(B) the length of time between when a beneficiary was assessed for such services, when the care plan was completed, and when the beneficiary started receiving such services.

(4) GAO STUDY AND REPORT- The Comptroller General of the United States shall study the longitudinal costs of Medicaid beneficiaries receiving long-term services and supports (as defined by the Secretary for purposes of section 1905(y)(5) of the Social Security Act) over 5-year periods across various programs, including the non-institutionally-based long-term services and supports described in paragraph (5)(B) of such section, PACE program services under section 1894 of the Social Security Act (42 U.S.C. 1395eee, 1396u-4), and services provided under specialized MA plans for special needs individuals under part C of title XVIII of the Social Security Act.

TITLE II--STRENGTHENING THE MEDICAID HOME AND COMMUNITY-BASED STATE PLAN AMENDMENT OPTION