[Congressional Bills 106th Congress]
[From the U.S. Government Publishing Office]
[S. 1935 Introduced in Senate (IS)]







106th CONGRESS
  1st Session
                                S. 1935

 To amend title XIX of the Social Security Act to provide for coverage 
    of community attendant services and supports under the medicaid 
                                program.


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

                           November 16, 1999

Mr. Harkin (for himself and Mr. Specter) introduced the following bill; 
     which was read twice and referred to the Committee on Finance

_______________________________________________________________________

                                 A BILL


 
 To amend title XIX of the Social Security Act to provide for coverage 
    of community attendant services and supports under the medicaid 
                                program.

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

SECTION 1. SHORT TITLE.

    This Act may be cited as the ``Medicaid Community Attendant 
Services and Supports Act of 1999''.

SEC. 2. FINDINGS, PURPOSES, AND POLICY.

    (a) Findings.--Congress makes the following findings:
            (1) Many studies have found that an overwhelming majority 
        of individuals with disabilities needing long-term services and 
        supports would prefer to receive them in home and community-
        based settings rather than in institutions. However, research 
        on the provision of long-term services and supports under the 
        medicaid program (conducted by and on behalf of the Department 
        of Health and Human Services) has revealed a significant bias 
        toward funding these services in institutional rather than home 
        and community-based settings. The extent of this bias is 
        indicated by the fact that 75 percent of medicaid funds for 
        long-term services and supports are expended in nursing homes 
        and intermediate care facilities for the mentally retarded 
        while approximately 25 percent of such funds pays for services 
        in home and community-based settings.
            (2) Because of this bias, significant numbers of 
        individuals with disabilities of all ages who would prefer to 
        live in the community and could do so with community attendant 
        services and supports are forced to live in unnecessarily 
        segregated institutional settings if they want to receive 
        needed services and supports. Benefit packages provided in 
        these settings are medically-oriented and constitute barriers 
        to the receipt of the types of services individuals need and 
        want. Decisions regarding the provision of services and 
        supports are too often influenced by what is reimbursable 
        rather than by what individuals need and want.
            (3) There is a growing recognition that disability is a 
        natural part of the human experience that in no way diminishes 
        an individual's right to--
                    (A) live independently;
                    (B) enjoy self-determination;
                    (C) make choices;
                    (D) contribute to society; and
                    (E) enjoy full inclusion and integration in the 
                mainstream of American society.
            (4) Long-term services and supports provided under the 
        medicaid program must meet the evolving and changing needs and 
        preferences of individuals with disabilities, including the 
        preferences for living within one's own home or living with 
        one's own family and becoming productive members of the 
        community.
            (5) The goals of the Nation properly include providing 
        individuals with disabilities with--
                    (A) a meaningful choice of receiving long-term 
                services and supports in the most integrated setting 
                appropriate;
                    (B) the greatest possible control over the services 
                received; and
                    (C) quality services that maximize social 
                functioning in the home and community.
    (b) Purposes.--The purposes of this Act are as follows:
            (1) To provide that States shall offer community attendant 
        services and supports for eligible individuals with 
        disabilities.
            (2) To provide financial assistance to States to support 
        systems change initiatives that are designed to assist each 
        State in developing and enhancing a comprehensive consumer-
        responsive statewide system of long-term services and supports 
        that provides real consumer choice and direction consistent 
        with the principle that services and supports should be 
        provided in the most integrated setting appropriate to meeting 
        the unique needs of the individual.
    (c) Policy.--It is the policy of the United States that all 
programs, projects, and activities receiving assistance under this Act 
shall be carried out in a manner consistent with the following 
principles:
            (1) Individuals with disabilities, or, as appropriate, 
        their representatives, must be empowered to exercise real 
        choice in selecting long-term services and supports that are of 
        high quality, cost-effective, and meet the unique needs of the 
        individual in the most integrated setting appropriate.
            (2) No individual should be forced into an institution to 
        receive services that can be effectively and efficiently 
        delivered in the home or community.
            (3) Federal and State policies, practices, and procedures 
        should facilitate and be responsive to, and not impede, an 
        individual's choice in selecting long-term services and 
        supports.
            (4) Individuals and their families receiving long-term 
        services and supports must be involved in decisionmaking about 
        their own care and be provided with sufficient information to 
        make informed choices.

SEC. 3. COVERAGE OF COMMUNITY ATTENDANT SERVICES AND SUPPORTS UNDER THE 
              MEDICAID PROGRAM.

    (a) Required Coverage for Individuals Entitled to Nursing Facility 
Services or Eligible for Intermediate Care Facility Services for the 
Mentally Retarded.--Section 1902(a)(10)(D) of the Social Security Act 
(42 U.S.C. 1396a(a)(10)(D)) is amended--
            (1) by inserting ``(i)'' after ``(D)'';
            (2) by adding ``and'' after the semicolon; and
            (3) by adding at the end the following:
                    ``(ii) subject to section 1935, for the inclusion 
                of community attendant services and supports for any 
                individual who is eligible for medical assistance under 
                the State plan and with respect to whom there has been 
                a determination that the individual requires the level 
                of care provided in a nursing facility or an 
                intermediate care facility for the mentally retarded 
                (whether or not coverage of such intermediate care 
                facility is provided under the State plan) and who 
                requires such community attendant services and supports 
                based on functional need and without regard to age or 
                disability;''.
    (b) Medicaid Coverage of Community Attendant Services and 
Supports.--
            (1) In general.--Title XIX of the Social Security Act (42 
        U.S.C. 1396 et seq.) is amended--
                    (A) by redesignating section 1935 as section 1936; 
                and
                    (B) by inserting after section 1934 the following:

              ``community attendant services and supports

    ``Sec. 1935. (a) Definitions.--In this title:
            ``(1) Community attendant services and supports.--
                    ``(A) In general.--The term `community attendant 
                services and supports' means attendant services and 
                supports furnished to an individual, as needed, to 
                assist in accomplishing activities of daily living, 
                instrumental activities of daily living, and health-
                related functions through hands-on assistance, 
                supervision, or cueing--
                            ``(i) under a plan of services and supports 
                        that is based on an assessment of functional 
                        need and that is agreed to by the individual 
                        or, as appropriate, the individual's 
                        representative;
                            ``(ii) in a home or community setting, 
                        which may include a school, workplace, or 
                        recreation or religious facility, but does not 
                        include a nursing facility, an intermediate 
                        care facility for the mentally retarded, or 
                        other congregate facility;
                            ``(iii) under an agency-provider model or 
                        other model (as defined in paragraph (2)(C)); 
                        and
                            ``(iv) the furnishing of which is selected, 
                        managed, and dismissed by the individual, or, 
                        as appropriate, with assistance from the 
                        individual's representative.
                    ``(B) Included services and supports.--Such term 
                includes--
                            ``(i) tasks necessary to assist an 
                        individual in accomplishing activities of daily 
                        living, instrumental activities of daily 
                        living, and health-related functions;
                            ``(ii) acquisition, maintenance, and 
                        enhancement of skills necessary for the 
                        individual to accomplish activities of daily 
                        living, instrumental activities of daily 
                        living, and health-related functions;
                            ``(iii) backup systems or mechanisms (such 
                        as the use of beepers) to ensure continuity of 
                        services and supports; and
                            ``(iv) voluntary training on how to select, 
                        manage, and dismiss attendants.
                    ``(C) Excluded services and supports.--Subject to 
                subparagraph (D), such term does not include--
                            ``(i) provision of room and board for the 
                        individual;
                            ``(ii) special education and related 
                        services provided under the Individuals with 
                        Disabilities Education Act and vocational 
                        rehabilitation services provided under the 
                        Rehabilitation Act of 1973;
                            ``(iii) assistive technology devices and 
                        assistive technology services;
                            ``(iv) durable medical equipment; or
                            ``(v) home modifications.
                    ``(D) Flexibility in transition to community-based 
                home setting.--Such term may include expenditures for 
                transitional costs, such as rent and utility deposits, 
                first months's rent and utilities, bedding, basic 
                kitchen supplies, and other necessities required for an 
                individual to make the transition from a nursing 
                facility or intermediate care facility for the mentally 
                retarded to a community-based home setting where the 
                individual resides.
            ``(2) Additional definitions.--
                    ``(A) Activities of daily living.--The term 
                `activities of daily living' includes eating, 
                toileting, grooming, dressing, bathing, and 
                transferring.
                    ``(B) Consumer directed.--The term `consumer 
                directed' means a method of providing services and 
                supports that allow the individual, or where 
                appropriate, the individual's representative, maximum 
                control of the community attendant services and 
                supports, regardless of who acts as the employer of 
                record.
                    ``(C) Delivery models.--
                            ``(i) Agency-provider model.--The term 
                        `agency-provider model' means, with respect to 
                        the provision of community attendant services 
                        and supports for an individual, a method of 
                        providing consumer-directed services and 
                        supports under which entities contract for the 
                        provision of such services and supports.
                            ``(ii) Other models.--The term `other 
                        models' means methods, other than an agency-
                        provider model, for the provision of consumer-
                        directed services and supports. Such models may 
                        include the provision of vouchers, direct cash 
                        payments, or use of a fiscal agent to assist in 
                        obtaining services.
                    ``(D) Health-related functions.--The term `health-
                related functions' means functions that can be 
                delegated or assigned by licensed health-care 
                professionals under State law to be performed by an 
                attendant.
                    ``(E) Instrumental activities of daily living.--The 
                term `instrumental activities of daily living' includes 
                meal planning and preparation, managing finances, 
                shopping for food, clothing and other essential items, 
                performing essential household chores, communicating by 
                phone and other media, and getting around and 
                participating in the community.
                    ``(F) Individual's representative.--The term 
                `individual's representative' means a parent, a family 
                member, a guardian, an advocate, or an authorized 
                representative of an individual.
    ``(b) Limitation on Amounts of Expenditures under This Title.--In 
carrying out section 1902(a)(10)(D)(ii), a State shall permit an 
individual who has a level of severity of physical or mental impairment 
that entitles such individual to medical assistance with respect to 
nursing facility services or qualifies the individual for intermediate 
care facility services for the mentally retarded to choose to receive 
medical assistance for community attendant services and supports 
(rather than medical assistance for such institutional services and 
supports), in the most integrated setting appropriate to the needs of 
the individual, so long as the aggregate amount of the Federal 
expenditures for community attendant services and supports for all such 
individuals in a fiscal year does not exceed the total that would have 
been expended for such individuals to receive such institutional 
services and supports in the year.
    ``(c) Maintenance of Effort.--With respect to a fiscal year 
quarter, no Federal funds may be paid to a State for medical assistance 
provided to individuals described in section 1902(a)(10)(D)(ii) for 
such fiscal year quarter if the Secretary determines that the total of 
the State expenditures for programs to enable such individuals with 
disabilities to receive community attendant services and supports (or 
services and supports that are similar to such services and supports) 
under other provisions of this title for the preceding fiscal year 
quarter is less than the total of such expenditures for the same fiscal 
year quarter for the preceding fiscal year.
    ``(d) State Quality Assurance Program.--In order to continue to 
receive Federal financial participation for providing community 
attendant services and supports under this section, a State shall, at a 
minimum, establish and maintain a quality assurance program that 
provides for the following:
            ``(1) The State shall establish requirements, as 
        appropriate, for agency-based and other models that include--
                    ``(A) minimum qualifications and training 
                requirements, as appropriate for agency-based and other 
                models;
                    ``(B) financial operating standards; and
                    ``(C) an appeals procedure for eligibility denials 
                and a procedure for resolving disagreements over the 
                terms of an individualized plan.
            ``(2) The State shall modify the quality assurance program, 
        where appropriate, to maximize consumer independence and 
        consumer direction in both agency-provided and other models.
            ``(3) The State shall provide a system that allows for the 
        external monitoring of the quality of services by entities 
        consisting of consumers and their representatives, disability 
        organizations, providers, family, members of the community, and 
        others.
            ``(4) The State provides ongoing monitoring of the health 
        and well-being of each recipient.
            ``(5) The State shall require that quality assurance 
        mechanisms appropriate for the individual should be included in 
        the individual's written plan.
            ``(6) The State shall establish a process for mandatory 
        reporting, investigation, and resolution of allegations of 
        neglect, abuse, or exploitation.
            ``(7) The State shall obtain meaningful consumer input, 
        including consumer surveys, that measure the extent to which a 
        participant receives the services and supports described in the 
        individual's plan and the participant's satisfaction with such 
        services and supports.
            ``(8) The State shall make available to the public the 
        findings of the quality assurance program.
            ``(9) The State shall establish an on-going public process 
        for the development, implementation, and review of the State's 
        quality assurance program.
            ``(10) The State shall develop and implement a program of 
        sanctions.
    ``(e) Federal Role in Quality Assurance.--The Secretary shall 
conduct a periodic sample review of outcomes for individuals based upon 
the individual's plan of support and based upon the quality assurance 
program of the State. The Secretary may conduct targeted reviews upon 
receipt of allegations of neglect, abuse, or exploitation. The 
Secretary shall develop guidelines for States to use in developing 
sanctions.
    ``(f) Requirement To Expand Eligibility.--Effective October 1, 
2000, a State may not exercise the option of coverage of individuals 
under section 1902(a)(10)(A)(ii)(V) without providing coverage under 
section 1902(a)(10)(A)(ii)(VI).
    ``(g) Report on Impact of Section.--The Secretary shall submit to 
Congress periodic reports on the impact of this section on 
beneficiaries, States, and the Federal Government.''.
    (c) Inclusion in Optional Eligibility Classification.--Section 
1902(a)(10)(A)(ii)(VI) of the Social Security Act (42 U.S.C. 
1396a(a)(10)(A)(ii)(VI)) is amended by inserting ``or community 
attendant services and supports described in section 1935'' after 
``section 1915'' each place such term appears.
    (d) Coverage as Medical Assistance.--
            (1) In general.--Section 1905(a) of the Social Security Act 
        (42 U.S.C. 1396d) is amended--
                    (A) by striking ``and'' at the end of paragraph 
                (26);
                    (B) by redesignating paragraph (27) as paragraph 
                (28); and
                    (C) by inserting after paragraph (26) the 
                following:
            ``(27) community attendant services and supports (to the 
        extent allowed and as defined in section 1935); and''.
            (2) Conforming amendments.--
                    (A) Section 1902(j) of the Social Security Act (42 
                U.S.C. 1396a(j)) is amended by striking ``of of'' and 
                inserting ``of''.
                    (B) Section 1902(a)(10)(C)(iv) of the Social 
                Security Act (42 U.S.C. 1396a(a)(10)(C)(iv)) is amended 
                by inserting ``and (27)'' after ``(24)''.

SEC. 4. GRANTS TO DEVELOP AND ESTABLISH REAL CHOICE SYSTEMS CHANGE 
              INITIATIVES.

    (a) Establishment.--
            (1) In general.--The Secretary of Health and Human Services 
        (referred to in this section as the ``Secretary'') shall award 
        grants described in subsection (b) to States to support real 
        choice systems change initiatives that establish specific 
        action steps and specific timetables to provide consumer-
        responsive long term services and supports to eligible 
        individuals in the most integrated setting appropriate based on 
        the unique strengths and needs of the individual and the 
        priorities and concerns of the individual (or, as appropriate, 
        the individual's representative).
            (2) Eligibility.--To be eligible for a grant under this 
        section, a State shall--
                    (A) establish the Consumer Task Force in accordance 
                with subsection (d); and
                    (B) submit an application at such time, in such 
                manner, and containing such information as the 
                Secretary may determine. The application shall be 
                jointly developed and signed by the designated State 
                official and the chairperson of such Task Force, acting 
                on behalf of and at the direction of the Task Force.
            (3) Definition of state.--In this section, the term 
        ``State'' means each of the 50 States, the District of 
        Columbia, Puerto Rico, Guam, the United States Virgin Islands, 
        American Samoa, and the Commonwealth of the Northern Mariana 
        Islands.
    (b) Grants for Real Choice Systems Change Initiatives.--
            (1) In general.--From funds appropriated under subsection 
        (f), the Secretary shall award grants to States to--
                    (A) support the establishment, implementation, and 
                operation of the State real choice systems change 
                initiatives described in subsection (a); and
                    (B) conduct outreach campaigns regarding the 
                existence of such initiatives.
            (2) Determination of awards; state allotments.--The 
        Secretary shall develop a formula for the distribution of funds 
        to States for each fiscal year under subsection (a). Such 
        formula shall give preference to States that have a relatively 
        higher proportion of long-term services and supports furnished 
        to individuals in an institutional setting but who have a plan 
        described in an application submitted under subsection (a)(2).
    (c) Authorized Activities.--A State that receives a grant under 
this section shall use the funds made available through the grant to 
accomplish the purposes described in subsection (a) and, in 
accomplishing such purposes, may carry out any of the following systems 
change activities:
            (1) Needs assessment and data gathering.--The State may use 
        funds to conduct a statewide needs assessment that may be based 
        on data in existence on the date on which the assessment is 
        initiated and may include information about the number of 
        individuals within the State who are receiving long-term 
        services and supports in unnecessarily segregated settings, the 
        nature and extent to which current programs respond to the 
        preferences of individuals with disabilities to receive 
        services in home and community-based settings as well as in 
        institutional settings, and the expected change in demand for 
        services provided in home and community settings as well as 
        institutional settings.
            (2) Institutional bias.--The State may use funds to 
        identify, develop, and implement strategies for modifying 
        policies, practices, and procedures that unnecessarily bias the 
        provision of long-term services and supports toward 
        institutional settings and away from home and community-based 
        settings, including policies, practices, and procedures 
        governing statewideness, comparability in amount, duration, and 
        scope of services, financial eligibility, individualized 
        functional assessments and screenings (including individual and 
        family involvement), and knowledge about service options.
            (3) Over medicalization of services.--The State may use 
        funds to identify, develop, and implement strategies for 
        modifying policies, practices, and procedures that 
        unnecessarily bias the provision of long-term services and 
        supports by health care professionals to the extent that 
        quality services and supports can be provided by other 
        qualified individuals, including policies, practices, and 
        procedures governing service authorization, case management, 
        and service coordination, service delivery options, quality 
        controls, and supervision and training.
            (4) Interagency coordination; single point of entry.--The 
        State may support activities to identify and coordinate Federal 
        and State policies, resources, and services, relating to the 
        provision of long-term services and supports, including the 
        convening of interagency work groups and the entering into of 
        interagency agreements that provide for a single point of entry 
        and the design and implementation of a coordinated screening 
        and assessment system for all persons eligible for long-term 
        services and supports.
            (5) Training and technical assistance.--The State may carry 
        out directly, or may provide support to a public or private 
        entity to carry out training and technical assistance 
        activities that are provided for individuals with disabilities, 
        and, as appropriate, their representatives, attendants, and 
        other personnel (including professionals, paraprofessionals, 
        volunteers, and other members of the community).
            (6) Public awareness.--The State may support a public 
        awareness program that is designed to provide information 
        relating to the availability of choices available to 
        individuals with disabilities for receiving long-term services 
        and support in the most integrated setting appropriate.
            (7) Downsizing of large institutions.--The State may use 
        funds to support the per capita increased fixed costs in 
        institutional settings directly related to the movement of 
        individuals with disabilities out of specific facilities and 
        into community-based settings.
            (8) Transitional costs.--The State may use funds to provide 
        transitional costs described in section 1935(a)(1)(D) of the 
        Social Security Act, as added by this Act.
            (9) Task force.--The State may use funds to support the 
        operation of the Consumer Task Force established under 
        subsection (d).
            (10) Demonstrations of new approaches.--The State may use 
        funds to conduct, on a time-limited basis, the demonstration of 
        new approaches to accomplishing the purposes described in 
subsection (a).
            (11) Other activities.--The State may use funds for any 
        systems change activities that are not described in any of the 
        preceding paragraphs of this subsection and that are necessary 
        for developing, implementing, or evaluating the comprehensive 
        statewide system of long term services and supports.
    (d) Consumer Task Force.--
            (1) Establishment and duties.--To be eligible to receive a 
        grant under this section, each State shall establish a Consumer 
        Task Force (referred to in this section as the ``Task Force'') 
        to assist the State in the development, implementation, and 
        evaluation of real choice systems change initiatives.
            (2) Appointment.--Members of the Task Force shall be 
        appointed by the Chief Executive Officer of the State in 
        accordance with the requirements of paragraph (3), after the 
        solicitation of recommendations from representatives of 
        organizations representing a broad range of individuals with 
        disabilities and organizations interested in individuals with 
        disabilities.
            (3) Composition.--
                    (A) In general.--The Task Force shall represent a 
                broad range of individuals with disabilities from 
                diverse backgrounds and shall include representatives 
                from Developmental Disabilities Councils, State 
                Independent Living Councils, Commissions on Aging, 
                organizations that provide services to individuals with 
                disabilities and consumers of long-term services and 
                supports.
                    (B) Individuals with disabilities.--A majority of 
                the members of the Task Force shall be individuals with 
                disabilities or the representatives of such 
                individuals.
                    (C) Limitation.--The Task Force shall not include 
                employees of any State agency providing services to 
                individuals with disabilities other than employees of 
                agencies described in the Developmental Disabilities 
                Assistance and Bill of Rights Act (42 U.S.C. 6000 et 
                seq.).
    (e) Availability of Funds.--
            (1) Funds allotted to states.--Funds allotted to a State 
        under a grant made under this section for a fiscal year shall 
        remain available until expended.
            (2) Funds not allotted to states.--Funds not allotted to 
        States in the fiscal year for which they are appropriated shall 
        remain available in succeeding fiscal years for allotment by 
        the Secretary using the allotment formula established by the 
        Secretary under subsection (b)(2).
    (f) Annual Report.--A State that receives a grant under this 
section shall submit an annual report to the Secretary on the use of 
funds provided under the grant. Each report shall include the 
percentage increase in the number of eligible individuals in the State 
who receive long-term services and supports in the most integrated 
setting appropriate, including through community attendant services and 
supports and other community-based settings.
    (g) Appropriation.--Out of any funds in the Treasury not otherwise 
appropriated, there is authorized to be appropriated and there is 
appropriated to make grants under this section for--
            (1) fiscal year 2001, $25,000,000; and
            (2) for fiscal year 2002 and each fiscal year thereafter, 
        such sums as may be necessary to carry out this section.

SEC. 5. STATE OPTION FOR ELIGIBILITY FOR INDIVIDUALS.

    (a) In General.--Section 1903(f) of the Social Security Act (42 
U.S.C. 1396b(f)) is amended--
            (1) in paragraph (4)(C), by inserting ``subject to 
        paragraph (5),'' after ``does not exceed'', and
            (2) by adding at the end the following:
    ``(5)(A) A State may waive the income, resources, and deeming 
limitations described in paragraph (4)(C) in such cases as the State 
finds the potential for employment opportunities would be enhanced 
through the provision of medical assistance for community attendant 
services and supports in accordance with section 1935.
    ``(B) In the case of an individual who is eligible for medical 
assistance described in subparagraph (A) only as a result of the 
application of such subparagraph, the State may, notwithstanding 
section 1916(b), impose a premium based on a sliding scale related to 
income.''.
    (b) Effective Date.--The amendments made by subsection (a) shall 
apply to medical assistance provided for community attendant services 
and supports described in section 1935 of the Social Security Act 
furnished on or after October 1, 2000.

SEC. 6. STUDIES AND REPORTS.

    (a) Review of, and Report on, Regulations.--The National Council on 
Disability established under title IV of the Rehabilitation Act of 1973 
(29 U.S.C. 780 et seq.) shall review regulations in existence under 
title XIX of the Social Security Act (42 U.S.C. 1396 et seq.) on the 
date of enactment of this Act insofar as such regulations regulate the 
provision of home health services, personal care services, and other 
services in home and community-based settings and, not later than 1 
year after such date, submit a report to Congress on the results of 
such study, together with any recommendations for legislation that the 
Council determines to be appropriate as a result of the study.
    (b) Report on Reduced Title XIX Expenditures.--Not later than 1 
year after the date of enactment of this Act, the Secretary of Health 
and Human Services shall submit to Congress a report on how 
expenditures under the medicaid program under title XIX of the Social 
Security Act (42 U.S.C. 1396 et seq.) can be reduced by the furnishing 
of community attendant services and supports in accordance with section 
1935 of such Act (as added by section 3 of this Act).

SEC. 7. TASK FORCE ON FINANCING OF LONG-TERM CARE SERVICES.

    The Secretary of Health and Human Services shall establish a task 
force to examine appropriate methods for financing long-term services 
and supports. The task force shall include significant representation 
of individuals (and representatives of individuals) who receive such 
services and supports.
                                 <all>