Sec. 6. Regulations
2,545 words·~12 min read·
/bill/116/s/117/is/section-6A research copy — for the controlling text, always check the official state or federal source. Not legal advice.
Not later than 24 months after the date of enactment of this Act, the Attorney General and the Secretary of Health and Human Services shall issue, in accordance with section 553 of title 5, United States Code, final regulations to carry out this Act, which shall include the regulations described in subsection (b). The regulations shall require each public entity and LTSS insurance provider to offer, and, if accepted, provide community-based long-term services and supports as required under this Act to any individual with an LTSS disability who would otherwise qualify for institutional placement provided or funded by the public entity or LTSS insurance provider.
The regulations issued under this section shall require each public entity and LTSS insurance provider to provide the Attorney General and the Administrator with an assurance that the public entity or LTSS insurance provider— ensures that individuals with LTSS disabilities receive assistance through hands-on assistance, training, cueing, and safety monitoring, including access to backup systems, with— activities of daily living; instrumental activities of daily living; health-related tasks; or other functions, tasks, or activities related to an activity or task described in clause (i), (ii), or (iii); coordinates, conducts, performs, provides, or funds discharge planning from acute, rehabilitation, and long-term facilities to promote individuals with LTSS disabilities living in the most integrated setting chosen by the individuals; issues, conducts, performs, provides, or funds policies and programs to promote self-direction and the provision of consumer-directed services and supports for all populations of individuals with LTSS disabilities served; issues, conducts, performs, provides, or funds policies and programs to support informal caregivers who provide services for individuals with LTSS disabilities; and ensures that individuals with all types of LTSS disabilities are able to live in the community and lead an independent life, including ensuring that the individuals have maximum control over the services and supports that the individuals receive, choose the setting in which the individuals receive those services and supports, and exercise control and direction over their own lives.
The regulations issued under this section shall require each public entity to carry out an extensive public participation process in preparing the public entity’s self-evaluation under paragraph
(5)and transition plan under paragraph (10). The regulations issued under this section shall require each LTSS insurance provider to carry out a public participation process that involves holding a public hearing, providing an opportunity for public comment, and consulting with individuals with LTSS disabilities, in preparing the LTSS insurance provider’s self-evaluation under paragraph (5). In carrying out a public participation process under subparagraph
(A)or (B), a public entity or LTSS insurance provider shall ensure that the process meets the requirements of subparagraphs
(A)and
(C)of section 1115(d)(2) of the Social Security Act ( 42 U.S.C. 1315(d)(2) ), except that— the reference to at the State level shall be disregarded; and the reference to an application shall be considered to be a reference to the self-evaluation or plan involved. The regulations issued under this section shall establish circumstances under which a public entity shall provide community-based long-term services and supports under this section beyond the level of community-based long-term services and supports which would otherwise be required under this subsection. The regulations issued under this section shall require each public entity and each LTSS insurance provider, not later than 30 months after the date of enactment of this Act, to evaluate current services, policies, and practices, and the effects thereof, that do not or may not meet the requirements of this Act and, to the extent modification of any such services, policies, and practices is required to meet the requirements of this Act, make the necessary modifications. The self-evaluation shall include— collection of baseline information, including the numbers of individuals with LTSS disabilities in various institutional and community-based settings served by the public entity or LTSS insurance provider; a review of community capacity, in communities served by the entity or provider, in providing community-based long-term services and supports; identification of improvements needed to ensure that all community-based long-term services and supports provided by the public entity or LTSS insurance provider to individuals with LTSS disabilities are comprehensive, are accessible, are not duplicative of existing (as of the date of the identification) services and supports, meet the needs of persons who are likely to require assistance in order to live, or lead a life, as described in section 4(a), and are high-quality services and supports, which may include identifying system improvements that create an option to self-direct receipt of such services and supports for all populations of such individuals served; and a review of funding sources for community-based long-term services and supports and an analysis of how those funding sources could be organized into a fair, coherent system that affords individuals reasonable and timely access to community-based long-term services and supports. A public entity, including an LTSS insurance provider that is a public entity, shall— include in the self-evaluation described in subparagraph (A)— an assessment of the availability of accessible, affordable transportation across the State involved and whether transportation barriers prevent individuals from receiving long-term services and supports in the most integrated setting; and an assessment of the availability of integrated employment opportunities in the jurisdiction served by the public entity for individuals with LTSS disabilities; and provide the self-evaluation described in subparagraph
(A)to the Attorney General and the Administrator. An LTSS insurance provider shall keep the self-evaluation described in subparagraph
(A)on file, and may be required to produce such self-evaluation in the event of a review, investigation, or action described in section 8. The regulations issued under this section shall require a public entity, in conjunction with the housing agencies serving the jurisdiction served by the public entity, to review and improve community capacity, in all communities throughout the entirety of that jurisdiction, in providing affordable, accessible, and integrated housing, including an evaluation of available units, unmet need, and other identifiable barriers to the provision of that housing. In carrying out that improvement, the public entity, in conjunction with such housing agencies, shall— ensure, and assure the Administrator and the Attorney General that there is, sufficient availability of affordable, accessible, and integrated housing in a setting that is not a disability-specific residential setting or a setting where services are tied to tenancy, in order to provide individuals with LTSS disabilities a meaningful choice in their housing; in order to address the need for affordable, accessible, and integrated housing— in the case of such a housing agency, establish relationships with State and local housing authorities; and in the case of the public entity, establish relationships with State and local housing agencies, including housing authorities; establish, where needed, necessary preferences and set-asides in housing programs for individuals with LTSS disabilities who are transitioning from or avoiding institutional placement; establish a process to fund necessary home modifications so that individuals with LTSS disabilities can live independently; and ensure, and assure the Administrator and the Attorney General, that funds and programs implemented or overseen by the public entity or in the public entity’s jurisdiction are targeted toward affordable, accessible, integrated housing for individuals with an LTSS disability who have the lowest income levels in the jurisdiction as a priority over any other development until capacity barriers for such housing are removed or unmet needs for such housing have been met. The regulations issued under this section shall require each public entity and LTSS insurance provider to designate at least one employee to coordinate the entity’s or provider’s efforts to comply with and carry out the entity or provider’s responsibilities under this Act, including the investigation of any complaint communicated to the entity or provider that alleges a violation of this Act. Each public entity and LTSS insurance provider shall make available to all interested individuals the name, office address, and telephone number of the employee designated pursuant to this paragraph. The regulations issued under this section shall require public entities and LTSS insurance providers to adopt and publish grievance procedures providing for prompt and equitable resolution of complaints alleging a violation of this Act. The regulations issued under this section shall require each public entity submitting a self-evaluation under paragraph
(5)to identify, as part of the transition plan described in paragraph (10), any other entity that is, or acts as, an agent, subcontractor, or other instrumentality of the public entity with regards to a service, support, policy, or practice described in such plan or self-evaluation. The regulations issued under this section shall require each public entity, not later than 42 months after the date of enactment of this Act, to submit to the Administrator, and begin implementing, a transition plan for carrying out this Act that establishes the achievement of the requirements of this Act, as soon as practicable, but in no event later than 12 years after the date of enactment of this Act. The transition plan shall— establish measurable objectives to address the barriers to community living identified in the self-evaluation under paragraph (5); establish specific annual targets for the transition of individuals with LTSS disabilities, and shifts in funding, from institutional settings to integrated community-based services and supports, and related programs; describe specific efforts to support individuals with LTSS disabilities to avoid unwanted institutionalization through the provision of LTSS; and describe the manner in which the public entity has obtained or plans to obtain necessary funding and resources needed for implementation of the plan (regardless of whether the entity began carrying out the objectives of this Act prior to the date of enactment of this Act). The regulations issued under this section shall establish annual reporting requirements for each public entity covered by this section. The regulations issued under this section shall require each public entity that has submitted a transition plan to submit to the Administrator an annual report on the progress the public entity has made during the previous year in meeting the measurable objectives, specific annual targets, and specific efforts described in paragraph (10). The regulations issued under this section shall include such other provisions and requirements as the Attorney General and the Secretary of Health and Human Services determine are necessary to carry out the objectives of this Act. The Administrator shall review a transition plan submitted in accordance with subsection (b)(10) for the purpose of determining whether such plan meets the requirements of this Act, including the regulations issued under this section. If the Administrator determines that a transition plan reviewed under this subsection fails to meet the requirements of this Act, the Administrator shall disapprove the transition plan and notify the public entity that submitted the transition plan of, and the reasons for, such disapproval. Not later than 90 days after the date of disapproval of a transition plan under this subsection, the public entity that submitted the transition plan shall modify the transition plan to meet the requirements of this section and shall submit to the Administrator, and commence implementation of, such modified transition plan. For 10 years after the issuance of the regulations described in subsection (a), the Secretary of Health and Human Services shall annually determine whether each State, or each other public entity in the State, is complying with the transition plan or modified transition plan the State or other public entity submitted, and obtained approval for, under this section. Notwithstanding any other provision of law, if the Secretary of Health and Human Services determines under this subparagraph that the State or other public entity is complying with the corresponding transition plan, the Secretary shall make the increase described in subparagraph (B). On making the determination described in subparagraph
(A)for a public entity (including a State), the Secretary of Health and Human Services shall, as described in subparagraph (C), increase by 5 percentage points the FMAP (but shall in no event increase the FMAP above 100 percent) for the State in which the public entity is located for amounts expended by the State for medical assistance consisting of home and community-based services furnished under the State Medicaid plan under title XIX of the Social Security Act ( 42 U.S.C. 1396 et seq.) or a waiver of such plan— that— are identified by a public entity or LTSS insurance provider under subsection (b)(5)(A)(iii); resulted from shifts in funding identified by a public entity under subsection (b)(10)(B); or are environmental modifications to achieve the affordable, accessible, integrated housing identified by a public entity under subsection (b)(6)(E); and are described by the State in a request to the Secretary of Health and Human Services for the increase. The Secretary of Health and Human Services shall increase the FMAP described in subparagraph (B)— beginning with the first quarter that begins after the date of the determination; and ending with the quarter in which the next annual determination under subparagraph
(A)occurs. As a condition for the receipt of a payment based on an increase described in subparagraph
(B)with respect to amounts to be expended by the State for medical assistance consisting of home and community-based services described in subparagraph (B), the State shall report to the Secretary, for the reporting year, the amount of funds expended by the State for home and community-based services (as defined in subparagraph (E)(ii)) in that year. The State shall make the report in a format developed or approved by the Secretary. If the amount reported under clause
(i)by a State with respect to a reporting year is less than the amount reported under clause
(i)with respect to the previous fiscal year or fiscal year 2019, whichever was the greater reported amount, the Secretary shall provide for a reduction in the payment to the State based on the increase. In this paragraph: The term FMAP means the Federal medical assistance percentage for a State determined under section 1905(b) of the Social Security Act ( 42 U.S.C. 1396d(b) ) without regard to any increases in that percentage applicable under other subsections of that section or any other provision of law, including this section. The term home and community-based services means any of the following services provided under a State Medicaid plan under title XIX of the Social Security Act ( 42 U.S.C. 1396 et seq.) or a waiver of such plan: Home and community-based services provided under subsection (c), (d), or
(i)of section 1915 of the Social Security Act ( 42 U.S.C. 1396n ). Home health care services. Personal care services. Services described in section 1905(a)(26) of the Social Security Act ( 42 U.S.C. 1396d(a)(26) ) (relating to PACE program services). Self-directed personal assistance services provided in accordance with section 1915(j) of the Social Security Act ( 42 U.S.C. 1396n(j) ). Community-based attendant services and supports provided in accordance with section 1915(k) of the Social Security Act ( 42 U.S.C. 1396n(k) ). Rehabilitative services, within the meaning of section 1905(a)(13) of the Social Security Act ( 42 U.S.C. 1396d(a)(13) ). The term reporting year means the most recent fiscal year preceding the date of a report under subparagraph (D)(i). Nothing in subsection (b)(10) or
(c)or any other provision of this Act shall be construed to limit the rights, protections, or requirements of any other Federal law, relating to integration of individuals with disabilities into the community and enabling those individuals to live in the most integrated setting.
Connectionstraces to 4
Citation graph
cites case law
Cites 4Cited by 0 across 0 sources