Sec. 3. Medicaid home and community-based services infrastructure improvement
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Title XIX of the Social Security Act ( 42 U.S.C. 1396 et seq.) is amended by adding at the end the following: In this section: The term direct support professional means a person who, in exchange for compensation, provides services to a person with a disability (as defined in section 3 of the Americans With Disabilities Act of 1990) that promote such person's independence, including— services that enhance independence and community inclusion for such person, including traveling with such person, attending and assisting such persons while visiting friends and family, shopping, or socializing; services such as coaching and supporting such person in communicating needs, achieving self-expression, pursuing personal goals, living independently, and participating actively in employment or voluntary roles in the community; services such as providing assistance with activities of daily living (such as feeding, bathing, toileting, and ambulation) and with tasks such as meal preparation, shopping, light housekeeping, and laundry; or services that support such person at home, work, school, church, or other community settings.
The term eligible HCBS expenditures means expenditures by an HCBS infrastructure State on medical assistance for home and community-based services that are provided under the State plan or waiver during the State's HCBS infrastructure period and which aim to collaborate with other programs offering support for home and community-based services. The term first mile/last mile transportation means the transportation necessary to— transport a person to a fixed route transit system that the person could not otherwise conveniently access by walking, wheelchair, walker, or other self-propelled mobility method; and transport a person from a fixed route transit system to the person's final destination when the final destination is not within a distance that the person could conveniently access by walking, wheelchair, walker, or other self-propelled mobility method.
The term HCBS infrastructure period means, with respect to an HCBS infrastructure State, the 7-fiscal year period that begins with the first fiscal year that begins after the date on which the State is granted approval by the Secretary under subsection
(c)to conduct an HCBS infrastructure program. The term HCBS infrastructure program means a demonstration program conducted under this section. The term HCBS infrastructure State means a State that has been granted approval by the Secretary under subsection
(c)to conduct an HCBS infrastructure program. The term home and community-based services means long-term, person-centered services and supports that are not provided in an institutional setting, including— a home and community-based service provided under subsection (c), (d), or
(i)of section 1915 or under a waiver under section 1115; home and community-based long-term services and supports (provided in accordance with the requirements for home and community-based settings under sections 441.530 and 441.710 of title 42, Code of Federal Regulations), including— services described in paragraphs (7), (8), (13), (19), and
(24)of section 1905(a); home and community-based services described in subsection (c)(4)(B) of section 1915; self-directed home and community-based services described in subsection
(i)of section 1915; self-directed personal assistance services (as defined in subsection (j)(4)(A) of section 1915); and home and community-based attendant services and supports described in subsection
(k)of section 1915; a home health care service; and a personal care service. The term long-term services and supports has the meaning given that term in section 438.2 of title 42, Code of Federal Regulations (as of the date of enactment of this section). The term shared living means a living arrangement involving— not more than 2 people with disabilities or an older adult with a disability, except if 1 or more of the people are related to each other (by blood or a close association that is equivalent to a family relationship); a person who— provides long-term services and supports in exchange for compensation; lives together in a private home with the recipient of such services; and receives a stipend or room and board as the primary form of payment for providing such services; a person receiving funding through a State Medicaid program under this title or another publically funded program; and the person receiving such services having the final decision regarding who is the provider of such services living with the person, through a consumer-driven matching process that includes relationship building, person-centered planning as defined by the Administrator of the Centers for Medicare & Medicaid Services, and an assessment of individual compatibility. The term State means each of the 50 States, the District of Columbia, the Commonwealth of Puerto Rico, the United States Virgin Islands, Guam, American Samoa, and the Northern Mariana Islands. The term universal mobility service means a single platform through which people with disabilities or older adults are able to— access a variety of public and private demand responsive and fixed-route transportation services which have the necessary vehicles and facilities to meet the needs of all users, regardless of income, geographic location, disability, or age; and identify their travel options and compare the cost and length of trips using each such option; and schedule a ride, monitor progress, and pay for the trip, regardless of the number of transfers and independent providers used. Not later than January 1 of each of calendar years 2021 through 2024, from the amount appropriated under paragraph (5), the Secretary shall, subject to paragraph (2), award planning grants to any State that applies for such a grant for the purpose of developing proposals for an HCBS infrastructure program. In awarding grants for a year under this subsection the Secretary shall— consider the technical merits the proposed HCBS infrastructure program of each State that is applying for a grant in such year; and select a group of States that is diverse in terms of— the geographic areas the group represents; the population sizes of the States comprising the group; and the subparagraphs of subsection (e)(2) in which each such State is described (based on data from the 2 most recent years for which data is available). Grants awarded under this subsection shall be available to States for a period of 1 year. The Secretary shall not award planning grants under this subsection to more than 17 States in any year, and no State may receive more than 1 grant under this subsection. A State awarded a planning grant under this subsection shall— establish a Development and Implementation Council that meets the requirements described in paragraph
(4)to provide input into the development of the proposal and, if the State receives approval to conduct a demonstration program under this section, to monitor the ongoing implementation of the program; with guidance from the Centers for Medicare & Medicaid Services, identify populations in the State for which the per capita annual expenditures under the State plan or waiver of such plan on home and community-based services is less than the national average for that population; establish a set of standards and procedures to ensure the State makes measurable progress in expanding the availability of self-direction to people served by home and community-based service providers; develop a plan to increase home and community-based services, increase the availability of providers of such service throughout the State, and address at least 3 of the HCBS infrastructure priority areas described in subsection (c)(3); solicit public comment to help determine what the priorities of the proposed demonstration program should be; and execute memoranda of understanding between any State agencies that will be responsible for activities under the proposed demonstration program under which each such agency agrees to conduct the activities for which it will be responsible and to cooperate with other agencies as necessary. The requirements described in this paragraph with respect to a Development and Implementation Council established by a State (referred to in this section as a Council ) are the following: The members of the Council (the majority of whom shall be people with disabilities or older adults who need home and community-based services) shall consist of— people with disabilities or older adults who receive home and community-based services; people with disabilities, including older adults with disabilities, who meet criteria for home and community-based services but are not receiving such services; family caregivers; direct support professionals; providers of home and community-based services; one representative each from— an organization that represents people with disabilities; an organization that represents older adults; and an organization that represents direct support professionals; and representatives from State agencies that provide aging, disability, transportation, housing, employment, vocational rehabilitation, mental health, and substance use services and representatives, as appropriate, from programs providing transportation supports, housing supports, home and community-based services workforce development, family caregiver supports, and education and vocational rehabilitation services. The Council is coordinated by the Governor, and any proposal of the Council shall be submitted to, and reviewed by, by the Governor before it is submitted to the Secretary. The Council shall conduct a public comment process to collect information to inform the priorities and activities identified in the grant application. Out of any funds in the Treasury not otherwise appropriated, there is appropriated to the Secretary for each of fiscal years 2021 through 2024 $100,000,000 for purposes of awarding grants under this subsection. Funds appropriated under subparagraph
(A)shall remain available until expended. For each of fiscal years 2021 through 2024, out of the funds appropriated for such year under subparagraph (A), $3,000,000 shall be reserved for the purpose of providing technical assistance (through the Administrator of the Centers for Medicare & Medicaid Services) to States in meeting the requirements of paragraph (2). In providing technical assistance to States in developing plans to improve HCBS infrastructure priority areas described in subsection (c)(3), the Administrator of the Centers for Medicare & Medicaid Services shall consult with other agencies with relevant expertise in such areas, such as the Department of Transportation, the Department of Housing and Urban Development, and the Interagency Transportation Coordinating Council on Access and Mobility established under Executive Order No. 13330. Not later than 1 year after awarding a planning grant to a State under subsection (b), the Secretary shall, subject to paragraph (4), award to the State an HCBS infrastructure implementation grant under this section if the application— is developed through such planning grant; and meets the requirements of paragraph (2). The requirements of this paragraph with respect to a State implementation grant are the following: The State submits an application, using the most recent data available at the time the State was awarded a planning grant under subsection (b), to conduct an HCBS infrastructure implementation grant to the Secretary that includes, in addition to such other information as the Secretary may require— targets for spending under the State plan or waiver for home and community-based services under the State plan or waiver as a percentage of all spending under the plan or waiver on long-term services and supports, and yearly milestones for such targets that— provide States with the flexibility to focus on providing home and community-based services to certain populations; and require the State— to achieve spending targets for those populations; to identify populations in the State for which the per capita annual expenditures under the State plan or waiver on home and community-based services is less than the national average for that population; and to increase the level of expenditures on home and community-based services for each population described in clause (v)(II) to a target level proposed by the State; a description of how the State will— expand medical assistance for home and community-based services under the plan or waiver during the HCBS infrastructure period; achieve the spending targets and milestones described in clause (i); and initiate or expand self-directed services, with measurable targets and milestones; if the State limits the provision of home and community-based services to people under the plan or waiver or imposes any numerical limitation, waiting list, or similar limitation on the eligibility of people for such services, a detailed plan for how the State will reduce such limitations; a detailed plan with measurable objectives and annual milestones for at least 3 of the HCBS infrastructure priority areas described in paragraph (3); and data on the extent to which the State has already balanced the long-term services and supports system of the State, including— the percentage of total annual expenditures under the State plan or waiver for long-term services and supports expenditures that are for home and community-based services; and the percentage of total annual expenditures under the State plan or waiver for long-term services and supports expenditures that are for home and community-based services by population group, including— people with intellectual and developmental disabilities; people aged 65 and older; people with physical disabilities; and people with mental health and substance use disorders. During the HCBS infrastructure period, the State does not apply eligibility standards, methodologies, or procedures for determining eligibility for medical assistance for home and community-based services under the plan or waiver that are more restrictive than the eligibility standards, methodologies, or procedures in effect for such purposes on December 31, 2019. The State has a final approved plan to— fully comply with the Home and Community-Based Services Final Rule published by the Centers for Medicare & Medicaid Services on January 16, 2014 (79 Fed. Reg. 2947) (referred to in this section as the HCBS Settings Rule ); and construct the activities of the grant such that the results will be to stabilize and expand the service delivery network available in the State to provide services and supports under the State plan or waiver of such plan in a manner that complies with the HCBS Settings Rule. The State uses any additional Federal funds paid to the State as a result of this section only for purposes of increasing the availability and improving the quality of home and community-based services in the State. The State collects standardized data as determined by the Secretary, including— services data on a per-capita or family caregiver basis and, to the extent possible, in accordance with the Transformed Medicaid Statistical Information System (T-MSIS) (or a successor system); quality data on a selected set of core home and community-based services measures determined by the Secretary, including— measures of beneficiary and family caregiver experience; measures for the achievement of desired outcomes appropriate to a specific beneficiary or family caregiver, including— community inclusion; choice and personal control, including through self-directed services; and person-centered planning; and measures for the achievement of home and community-based services infrastructure improvements, including— competitive, integrated employment for people with disabilities and older adults; direct support professional workforce improvements, including increased wages; caregiver supports; accessible housing and accessible transportation improvements; and non-disability-specific settings; services data from providers of home and community-based services on a per-beneficiary or family caregiver basis and in accordance with such standardized coding procedures as the State shall establish in consultation with the Secretary; 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 available to the public, including consumers and providers of home and community-based services; and 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— measures of beneficiary and family caregiver experience with providers; and measures for achieving desired outcomes appropriate to a specific beneficiary or family caregiver, including— competitive integrated employment (as defined in section 3(11) of the Workforce Innovation and Opportunity Act); participation in community life; health stability; prevention of loss in function; and improved family caregiver health and wellness. The HCBS infrastructure priority areas described in this paragraph are the following: The State develops and implements, in consultation with representatives of people with disabilities, representatives of older adults, and representatives of direct support workers— infrastructure to enhance supply and retention of the direct support workforce, including through— enhancement of payment rates, contingent on wage increases for direct support professionals; and training and career advancement programs for direct support professionals, including programs that facilitate the participation of direct support professionals in organizations that foster their professional development and stakeholder engagement; infrastructure to support self-direction, including— matching service registries; and training for consumers who want to self-direct; and supports for family caregivers, including— use of family caregiver assessments; service offerings that support caregivers and may delay or ameliorate the need for more comprehensive non-institutional long-term services and supports; and implementation of evidence-based caregiver supportive services, increased access to and improvements in respite care, and financial assistance to help with out-of-pocket costs incurred by family caregivers. The State develops and implements statewide infrastructure, subject to the merit-based personnel standards and conflict of interest safeguards established and maintained by the State pursuant to section 1902(a)(4), to support opportunities for competitive integrated employment (as defined in section 3(11) of the Workforce Innovation and Opportunity Act) for people with disabilities and older adults, which may include— service delivery modifications and expansion; and establishing and expanding linkages with other programs that support workers with disabilities, such as— vocational rehabilitation; one-stop centers described in section 121 of the Workforce Innovation and Opportunity Act; and State departments of education. The State develops and implements infrastructure to increase the availability of affordable, accessible housing in non-disability-specific settings for people with disabilities and older adults receiving home and community-based services, which may include— assessing the supply and availability of such housing in communities across the State; creating or scaling incentives for State and local housing partners and developers to create more accessible housing; developing and implementing strategies to target people with the most significant developmental and other disabilities, including people with challenging behavior, complex medical needs, people requiring round-the-clock, one-on-one support from a direct support professional, and people with very high-service needs, for housing in non-disability-specific settings; scaling shared living within the State; home modifications and repairs that make it possible for a person to remain in the person's home or building modifications that make it possible for a person with a disability or an older adult to reside in a house or apartment; and developing administrative infrastructure to match people with housing and provide meaningful choices among non-disability-specific settings via the person-centered planning process. The State develops and implements strategies to improve access for all people with disabilities and older adults (including people who are blind or visually impaired, deaf or hard of hearing, have other physical disabilities, use a wheelchair or other mobility device, use a guide animal, or have an intellectual disability) to accessible transportation options, including first mile/last mile transportation, with the goal of improved community integration, in accordance with the HCBS Setting Rule, which may include— the provision of universal mobility services (as defined in subsection (a)(11)); partnering with existing non-emergency medical transportation brokers and their networks; partnering with demand-responsive providers, non-disability-specific non-profit providers, and other transportation providers; the targeted development of a community integration transportation system that leverages traditional and innovative transportation networks (such as on-demand application-based transportation); and expanding the non-emergency medical transportation services offered under the State plan to include transportation to— employment training and jobs; community-based supportive services such as congregate meals or independent living centers; and pharmacies, grocery stores, and other retail establishments to assist older adults and people with disabilities to remain in their homes and participate fully in their communities. Any strategy to improve access to transportation under this subparagraph shall include the implementation of a State requirement that providers of transportation receive training on how to support people with disabilities and older adults. To the extent that any expansion, development, or financing of paratransit is required under the Americans with Disabilities Act for fixed route service, such expansion, development, or financing shall not be considered to be a strategy to improve access to transportation for purposes of this subparagraph. A proposal for improvements described in this subparagraph shall consider and discuss the work of the National Aging and Disability Transportation Center, the Transactional Data Specification for Demand Responsive Transportation published by the Transportation Research Board, and best practices for the delivery of Medicaid non-emergency medical transportation services. No wrong door single entry point system The State develops and implements a statewide system (which may include preadmission screening by nurses, peer assessors, and other necessary providers to ensure that the appropriate assessments with respect to any person with a disability or older adult are done as soon as required), subject to the merit-based personnel standards and conflict of interest safeguards established and maintained by the State pursuant to section 1902(a)(4), to enable people enrolled in the State plan or waiver to access, on a timely basis, 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 shall provide information regarding— the availability of such services; how to apply for such services; disability benefits counseling; referral services for services and supports otherwise available in the community; and determinations of financial and functional eligibility for such services and supports, or assistance with assessment processes for financial and functional eligibility. The Secretary shall not grant approval to more than 17 States to conduct an HCBS infrastructure demonstration program under this section in any year. Each HCBS infrastructure State shall, for each fiscal year of the State's HCBS infrastructure period, conduct surveys of providers that received increased rates under the HCBS infrastructure program conducted by the State on the compensation paid by such providers to direct support professionals. Not later than 2 years after the date that an HCBS infrastructure State begins to conduct an HCBS infrastructure program, the State submits a report to the Administrator of the Centers for Medicare & Medicaid Services on the impact of the rate increases on the compensation, benefits, and training received by direct support professionals. The Secretary shall evaluate the implementation and outcomes of the HCBS infrastructure programs conducted by the States in the aggregate using an external evaluator with experience evaluating home and community-based services, disability programs, and older adult programs using the criteria described in each HCBS infrastructure State’s application and evaluating any change in HCBS service availability and quality for each HCBS infrastructure State. The external evaluator shall document and evaluate changes in access, availability, and quality of HCBS services in each of the priority areas described in subsection (c)(3) chosen by each HCBS infrastructure State. The external evaluator shall also evaluate the aggregate change changes in access, availability, and quality of HCBS services in each of the priorities areas described in subsection (c)(3) across the HCBS infrastructure States. The external evaluator shall also evaluate the HCBS infrastructure programs based on
(i)the impact of the programs on increasing funding for home and community-based services,
(ii)the impact of the programs on achieving targeted access, availability, and quality of home and community-based services, and
(iii)promising practices identified by the programs that increase access to, availability of, and quality of home and community based services. The Secretary shall— disseminate the findings from the evaluations of HCBS infrastructure programs conducted under this paragraph to— all State Medicaid directors; and the Committees on Ways and Means and Energy and Commerce of the House of Representatives, the Committee on Finance of the Senate, and the Special Committee on Aging of the Senate; and make all evaluation findings publicly available in an accessible electronic format and any other accessible format determined appropriate by the Secretary. Each State awarded a grant under subsection
(c)shall ensure adequate oversight of the expenditure of HCBS infrastructure program grant funds in accordance with the Medicaid regulations, including waiver 1115 and 1915 waiver regulations. Notwithstanding section 1905(b), with respect to each fiscal year in an HCBS infrastructure State's HCBS infrastructure period, if such State meets the conditions described in subsection (c)(2) for the year, the Federal medical assistance percentage that would otherwise apply with respect to eligible HCBS expenditures made by the State during the year shall be increased (but in no case to exceed 100 percent) by the applicable percentage points increase determined for the State and year under paragraph
(2)(and as increased, if applicable, under paragraph (3)). The applicable percentage points increase for an HCBS infrastructure State and year is— in the case of a State in which, for the 2 years preceding the year involved, less than 35 percent of the total expenditures for long-term services and supports were for home and community-based services, 5 percentage points; in the case of a State in which, for the 2 years preceding the year involved, between 35 percent and 50 percent of the total expenditures for long-term services and supports were for home and community-based services, 2 percentage points; in the case of a State in which, for the 2 years preceding the year involved, between 50 percent and 65 percent of the total expenditures for long-term services and supports were for home and community-based services, 0.50 percentage points; and in the case of a State in which, for the 2 years preceding the year involved, 65 percent or more of the total expenditures for long-term services and supports were for home and community-based services, 0.25 percentage points. Beginning with the first full fiscal year for which the Transformed Medicaid Statistical Information System (T-MSIS) is fully operational, the applicable percentage points increase determined for an HCBS infrastructure State and year under paragraph
(2)shall be increased by an additional— in the case of a State that is providing home and community based services to 85 percent or more of the people that make up the populations identified by the State under subsection (b)(3)(B), 5 percentage points; in the case of a State that is providing home and community based services to between 75 percent and 85 percent of the people that make up the populations identified by the State under subsection (b)(3)(B), 2 percentage points; in the case of a State that is providing home and community based services to between 65 percent and 75 percent of the people that make up the populations identified by the State under subsection (b)(3)(B), 0.5 percentage points; and in the case of a State that is providing home and community based services to less than 65 percent of the people that make up the populations identified by the State under subsection (b)(3)(B), 0.25 percentage points. The limitations on payment under subsections
(f)and
(g)of section 1108 shall not apply to Federal payments under this title that are based on the Federal medical assistance percentage as increased under this subsection, and such payments shall not be taken into account in applying such subsections. .
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- 79 FR 2947
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Sec. 3
Medicaid home and community-based services infrastructure improvement
Fed. Reg.79 FR 2947
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