[Congressional Record Volume 155, Number 50 (Tuesday, March 24, 2009)]
[Senate]
[Pages S3675-S3680]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

      By Mr. HARKIN (for himself, Mr. Specter, Mr. Kennedy, Mr. Durbin, 
        Mr. Kerry, Mr. Schumer, Ms. Stabenow, Mr. Dodd, Mr. Brown, Mr. 
        Sanders, Mr. Casey, Mr. Tester, Mrs. Gillibrand, and Mr. 
        Bennet):
  S. 683. A bill to amend title XIX of the Social Security Act to 
provide individuals with disabilities and older Americans with equal 
access to community-based attendant services and supports, and for 
other purposes; to the Committee on Finance.
  Mr. HARKIN. Mr. President, today, I am joining with Senator Specter 
and others to introduce the Community Choice Act. This legislation is 
needed to truly bring people with disabilities into the mainstream of 
society and provide equal opportunity for employment and full 
involvement in community activities.
  The individuals affected by the Community Choice Act are those 
persons who require an institutional level of care to manage their 
disabilities. The question is whether they will receive these services 
only in an institutional setting--typically, a nursing home--or whether 
they will also have the choice to receive these services in their 
communities, where they can be part of community life and close to 
family and friends.
  Under the U.S. Supreme Court's decision in Olmstead v. L.C., 1999, 
individuals with disabilities have the right to choose to receive their 
long-term services and supports in the community, rather than in an 
institutional setting. This year marks the 10-year anniversary of the 
Olmstead decision.
  Unfortunately, under current Medicaid policy, and despite much effort 
to ``rebalance'' the system, the deck is still stacked in favor of 
living in an institutional setting. The reason for this is simple. 
Despite the Olmstead decision, Federal law only requires that States 
cover nursing home care in their Medicaid programs. There is no similar 
requirement for providing individuals the choice of receiving their 
services and supports in a community-based setting.
  Overall about 60 percent of Medicaid long-term care dollars are still 
spent on institutional services, with about 40 percent going to home 
and community-based services. In 2007, only 11 States spent 50 percent 
or more of their Medicaid long-term care funds on home and community-
based care.
  The statistics are even more disproportionate for adults with 
physical disabilities. In 2007, 69 percent of Medicaid long-term care 
spending for older people and adults with physical disabilities paid 
for institutional services. Only 6 States spent 50 percent or more of 
their Medicaid long-term care dollars on home and community-based 
services for older people and adults with physical disabilities, while 
half of the States spent less than 25 percent. This disparity continues 
even though, on average, it is estimated that Medicaid dollars can 
support nearly three older people and adults with physical disabilities 
in home and community-based services for every person in a nursing 
home.
  Although 30 States have already recognized the benefits of community-
based services, and are providing the personal care optional benefit 
through their Medicaid program, these programs are unevenly distributed 
and only reach a small percentage of eligible individuals. Many of 
these programs serve only persons with certain disabilities. They have 
long waiting lists. They have financial caps. None of them allow the 
recipients to retain their benefits if they move to other States. 
Individuals with the most significant disabilities are usually afforded 
the least amount of choice, despite advances in medical and assistive 
technologies and related areas.

  This current imbalance means that individuals with disabilities do 
not have equal access to community-based care throughout this country. 
An individual with a disability should not have to move to another 
State in order to avoid needless segregation. Nor should that 
individual have to move away from family and friends because the only 
choice is an institution.
  The right to live in the community is too important a right to be 
left to State discretion. Instead, it should be left to the individual 
to decide, as the Supreme Court has recognized.
  The majority of individuals who use Medicaid long-term services and 
supports prefer to live in the community, rather than in institutional 
settings.
  I think of my nephew Kelly, who became a paraplegic after an accident 
while serving in the U.S. Navy. The Veterans Administration pays for 
his attendant services. This allows Kelly to get up in the morning, go 
to work, operate his own small business, pay taxes, and be a fully 
contributing member of our economy and society. This country is rich 
enough to provide these same opportunities to every American who needs 
attendant services.
  We in Congress have a responsibility to help States meet their 
obligations under Olmstead, to level the playing field, and to give 
eligible individuals equal access to the community-based services and 
supports they need.
  The Community Choice Act is designed to do just that, and to make the 
promise of the Americans with Disabilities Act a reality. It will help 
rebalance the current Medicaid long-term care system, which spends a 
disproportionate amount on institutional services.
  Federal Medicaid policy should reflect the goals of the Americans 
with Disabilities Act that Americans with disabilities should have 
equal opportunity, and the right to fully participate in their 
communities. No one should have to sacrifice their ability to 
participate because they need help getting out of the house in the 
morning or assistance with personal care or some other basic service.
  The Community Choice Act can substantially reform long-term services 
in this country, consistent with the Olmstead decision, by allowing 
people with disabilities who need an institutional level of care the 
choice of receiving their services and supports in their

[[Page S3676]]

own communities, rather than in an institution. With appropriate 
community-based services and supports, we can transform the lives of 
people with disabilities. They can live with family and friends, not 
strangers. They can be the neighbor down the street, not the person 
warehoused down the hall. This is not asking too much. This is the bare 
minimum that we should demand for every human being.
  Community-based services and supports allow people with disabilities 
to lead independent lives, have jobs, and participate in their 
communities. Some will become taxpayers, some will get an education, 
and some will participate in recreational and civic activities. But all 
will be given a chance to make their own choices and to govern their 
own lives.
  The Community Choice Act will open the door to full participation by 
people with disabilities in our workplaces and economy. It will give 
them better access to the American Dream.
  As has been true with all major disability-rights legislation going 
back to the ADA, this is a strictly bipartisan bill. I urge all my 
colleagues to come together on this important measure. I especially 
want to thank Senator Specter for his leadership on this issue and his 
commitment to improving access to home and community-based services for 
people with disabilities. I also thank Senators Kennedy, Durbin, Kerry, 
Schumer, Stabenow, Dodd, Brown, Sanders, Casey, Tester, Bennet, and 
Gillibrand for joining me in this important initiative.
  Mr. President, I ask unanimous consent that the text of the bill be 
printed in the Record.
  There being no objection, the text of the bill was ordered to be 
printed in the Record, as follows:

                                 S. 683

       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 ``Community 
     Choice Act of 2009''.
       (b) Table of Contents.--The table of contents for this Act 
     is as follows:

Sec. 1. Short title; table of contents.
Sec. 2. Findings and purposes.

            TITLE I--ESTABLISHMENT OF MEDICAID PLAN BENEFIT

Sec. 101. Coverage of community-based attendant services and supports 
              under the Medicaid program.
Sec. 102. Enhanced FMAP for ongoing activities of early coverage States 
              that enhance and promote the use of community-based 
              attendant services and supports.
Sec. 103. Increased Federal financial participation for certain 
              expenditures.

      TITLE II--PROMOTION OF SYSTEMS CHANGE AND CAPACITY BUILDING

Sec. 201. Grants to promote systems change and capacity building.
Sec. 202. Demonstration project to enhance coordination of care under 
              the Medicare and Medicaid programs for dual eligible 
              individuals.

     SEC. 2. FINDINGS AND PURPOSES.

       (a) Findings.--Congress makes the following findings:
       (1) Long-term services and supports provided under the 
     Medicaid program established under title XIX of the Social 
     Security Act (42 U.S.C. 1396 et seq.) must meet the abilities 
     and life choices of individuals with disabilities and older 
     Americans, including the choice to live in one's own home or 
     with one's own family and to become a productive member of 
     the community.
       (2) Similarly, under the United States Supreme Court's 
     decision in Olmstead v. L.C., 527 U.S. 581 (1999), 
     individuals with disabilities have the right to choose to 
     receive their long term services and supports in the 
     community, rather than in an institutional setting.
       (3) Nevertheless, 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) continues to show a significant funding and 
     programmatic bias toward institutional care. In 2007, only 42 
     percent of long-term care funds expended under the Medicaid 
     program, and only about 13.6 percent of all funds expended 
     under that program, pay for services and supports in home and 
     community-based settings.
       (4) While much effort has been dedicated to ``rebalancing'' 
     the current system, overall about 60 percent of Medicaid 
     long-term care dollars are still spent on institutional 
     services, with about 40 percent going to home and community 
     based services. In 2007, only 11 States spent 50 percent or 
     more of their Medicaid long-term care funds on home and 
     community-based care.
       (5) The statistics are even more disproportionate for 
     adults with physical disabilities. In 2007, 69 percent of 
     Medicaid long term care spending for older people and adults 
     with physical disabilities paid for institutional services. 
     Only 6 states spent 50 percent or more of their Medicaid long 
     term care dollars on home and community based services for 
     older people and adults with physical disabilities while \1/
     2\ of the States spent less than 25 percent. This disparity 
     continues even though, on average, it is estimated that 
     Medicaid dollars can support nearly 3 older people and adults 
     with physical disabilities in home and community-based 
     services for every person in a nursing home.
       (6) For Medicaid beneficiaries who need long term care, 
     services provided in an institutional setting represent the 
     only guaranteed benefit. Only 30 States have adopted the 
     benefit option of providing personal care, or attendant, 
     services under their Medicaid programs.
       (7) Although every State has chosen to provide certain 
     services under home and community-based waivers, these 
     services are unevenly available within and across States, and 
     reach a small percentage of eligible individuals. Individuals 
     with the most significant disabilities are usually afforded 
     the least amount of choice, despite advances in medical and 
     assistive technologies and related areas.
       (8) Despite the more limited funding for home and 
     community-based services, the majority of individuals who use 
     Medicaid long-term services and supports prefer to live in 
     the community, rather than in institutional settings.
       (9) The goals of the Nation properly include providing 
     families of children with disabilities, working-age adults 
     with disabilities, and older Americans with--
       (A) a meaningful choice of receiving long-term services and 
     supports in the most integrated setting appropriate to the 
     individual's needs;
       (B) the greatest possible control over the services 
     received and, therefore, their own lives and futures; and
       (C) quality services that maximize independence in the home 
     and community.
       (b) Purposes.--The purposes of this Act are the following:
       (1) To reform the Medicaid program established under title 
     XIX of the Social Security Act (42 U.S.C. 1396 et seq.) to 
     provide services in the most integrated setting appropriate 
     to the individual's needs, and to provide equal access to 
     community-based attendant services and supports in order to 
     assist individuals in achieving equal opportunity, full 
     participation, independent living, and economic self-
     sufficiency.
       (2) To provide financial assistance to States as they 
     reform their long-term care systems to provide comprehensive 
     statewide long-term services and supports, including 
     community-based attendant services and supports that provide 
     consumer choice and direction, in the most integrated setting 
     appropriate.
       (3) To assist States in meeting the growing demand for 
     community-based attendant services and supports, as the 
     Nation's population ages and individuals with disabilities 
     live longer.
       (4) To assist States in complying with the U.S. Supreme 
     Court decision in Olmstead v. L.C., 527 U.S. 581 (1999), and 
     implementing the integration mandate of the Americans with 
     Disabilities Act.

            TITLE I--ESTABLISHMENT OF MEDICAID PLAN BENEFIT

     SEC. 101. COVERAGE OF COMMUNITY-BASED ATTENDANT SERVICES AND 
                   SUPPORTS UNDER THE MEDICAID PROGRAM.

       (a) Mandatory Coverage.--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 new clause:
       ``(ii) subject to section 1943, for the inclusion of 
     community-based attendant services and supports for any 
     individual who--

       ``(I) is eligible for medical assistance under the State 
     plan;
       ``(II) with respect to whom there has been a determination 
     that the individual requires the level of care provided in a 
     nursing facility, institution for mental diseases, or an 
     intermediate care facility for the mentally retarded (whether 
     or not coverage of such institution or intermediate care 
     facility is provided under the State plan); and
       ``(III) chooses to receive such services and supports;''.

       (b) Community-Based Attendant Services and Supports.--
       (1) In general.--Title XIX of the Social Security Act (42 
     U.S.C. 1396 et seq.) is amended by adding at the end the 
     following new section:


           ``community-based attendant services and supports

       ``Sec. 1943.  (a) Required Coverage.--
       ``(1) In general.--Not later than October 1, 2014, a State 
     shall provide through a plan amendment for the inclusion of 
     community-based attendant services and supports (as defined 
     in subsection (g)(1)) for individuals described in section 
     1902(a)(10)(D)(ii) in accordance with this section.
       ``(2) Enhanced fmap and additional federal financial 
     support for earlier coverage.--Notwithstanding section 
     1905(b), during the period that begins on October 1, 2009, 
     and ends on September 30, 2014, in the case of a State with 
     an approved plan amendment under this section during that 
     period that also satisfies the requirements of subsection (c) 
     the Federal medical assistance percentage shall be equal to 
     the enhanced FMAP described in section 2105(b) with respect 
     to medical assistance in the form of

[[Page S3677]]

     community-based attendant services and supports provided to 
     individuals described in section 1902(a)(10)(D)(ii) in 
     accordance with this section on or after the date of the 
     approval of such plan amendment.
       ``(b) Development and Implementation of Benefit.--In order 
     for a State plan amendment to be approved under this section, 
     a State shall provide the Secretary with the following 
     assurances:
       ``(1) Assurance of development and implementation 
     collaboration.--
       ``(A) In general.--That State plan amendment--
       ``(i) has been developed in collaboration with, and with 
     the approval of, a Development and Implementation Council 
     established by the State that satisfies the requirements of 
     subparagraph (B); and
       ``(ii) will be implemented in collaboration with such 
     Council and on the basis of public input solicited by the 
     State and the Council.
       ``(B) Development and implementation council 
     requirements.--For purposes of subparagraph (A), the 
     requirements of this subparagraph are that--
       ``(i) the majority of the members of the Development and 
     Implementation Council are individuals with disabilities, 
     elderly individuals, and their representatives; and
       ``(ii) in carrying out its responsibilities, the Council 
     actively collaborates with--

       ``(I) individuals with disabilities;
       ``(II) elderly individuals;
       ``(III) representatives of such individuals; and
       ``(IV) providers of, and advocates for, services and 
     supports for such individuals.

       ``(2) Assurance of provision on a statewide basis and in 
     most integrated setting.--That consumer controlled community-
     based attendant services and supports will be provided under 
     the State plan to individuals described in section 
     1902(a)(10)(D)(ii) on a statewide basis and in a manner that 
     provides such services and supports in the most integrated 
     setting appropriate to the individual's needs.
       ``(3) Assurance of nondiscrimination.--That the State will 
     provide community-based attendant services and supports to an 
     individual described in section 1902(a)(10)(D)(ii) without 
     regard to the individual's age, type or nature of disability, 
     severity of disability, or the form of community-based 
     attendant services and supports that the individual requires 
     in order to lead an independent life.
       ``(4) Assurance of maintenance of effort.--That the level 
     of State expenditures for medical assistance that is provided 
     under section 1905(a), section 1915, section 1115, or 
     otherwise to individuals with disabilities or elderly 
     individuals for a fiscal year shall not be less than the 
     level of such expenditures for the fiscal year preceding the 
     first full fiscal year in which the State plan amendment to 
     provide community-based attendant services and supports in 
     accordance with this section is implemented.
       ``(c) Requirements for Enhanced FMAP for Early Coverage.--
     In addition to satisfying the other requirements for an 
     approved plan amendment under this section, in order for a 
     State to be eligible under subsection (a)(2) during the 
     period described in that subsection for the enhanced FMAP for 
     early coverage under subsection (a)(2), the State shall 
     satisfy the following requirements:
       ``(1) Specifications.--With respect to a fiscal year, the 
     State shall provide the Secretary with the following 
     specifications regarding the provision of community-based 
     attendant services and supports under the plan for that 
     fiscal year:
       ``(A)(i) The number of individuals who are estimated to 
     receive community-based attendant services and supports under 
     the plan during the fiscal year.
       ``(ii) The number of individuals that received such 
     services and supports during the preceding fiscal year.
       ``(B) The maximum number of individuals who will receive 
     such services and supports under the plan during that fiscal 
     year.
       ``(C) The procedures the State will implement to ensure 
     that the models for delivery of such services and supports 
     are consumer controlled (as defined in subsection (g)(2)(B)).
       ``(D) The procedures the State will implement to inform all 
     potentially eligible individuals and relevant other 
     individuals of the availability of such services and supports 
     under this title, and of other items and services that may be 
     provided to the individual under this title or title XVIII 
     and other Federal or State long-term service and support 
     programs.
       ``(E) The procedures the State will implement to ensure 
     that such services and supports are provided in accordance 
     with the requirements of subsection (b)(1).
       ``(F) The procedures the State will implement to actively 
     involve in a systematic, comprehensive, and ongoing basis, 
     the Development and Implementation Council established in 
     accordance with subsection (b)(1)(A)(ii), individuals with 
     disabilities, elderly individuals, and representatives of 
     such individuals in the design, delivery, administration, 
     implementation, and evaluation of the provision of such 
     services and supports under this title.
       ``(2) Participation in evaluations.--The State shall 
     provide the Secretary with such substantive input into, and 
     participation in, the design and conduct of data collection, 
     analyses, and other qualitative or quantitative evaluations 
     of the provision of community-based attendant services and 
     supports under this section as the Secretary deems necessary 
     in order to determine the effectiveness of the provision of 
     such services and supports in allowing the individuals 
     receiving such services and supports to lead an independent 
     life to the maximum extent possible.
       ``(d) Quality Assurance.--
       ``(1) State responsibilities.--In order for a State plan 
     amendment to be approved under this section, a State shall 
     establish and maintain a comprehensive, continuous quality 
     assurance system with respect to community-based attendant 
     services and supports that provides for the following:
       ``(A) The State shall establish requirements, as 
     appropriate, for agency-based and other delivery models that 
     include--
       ``(i) minimum qualifications and training requirements for 
     agency-based and other models;
       ``(ii) financial operating standards; and
       ``(iii) an appeals procedure for eligibility denials and a 
     procedure for resolving disagreements over the terms of an 
     individualized plan.
       ``(B) The State shall modify the quality assurance system, 
     as appropriate, to maximize consumer independence and 
     consumer control in both agency-provided and other delivery 
     models.
       ``(C) The State shall provide a system that allows for the 
     external monitoring of the quality of services and supports 
     by entities consisting of consumers and their 
     representatives, disability organizations, providers, 
     families of disabled or elderly individuals, members of the 
     community, and others.
       ``(D) The State shall provide for ongoing monitoring of the 
     health and well-being of each individual who receives 
     community-based attendant services and supports.
       ``(E) The State shall require that quality assurance 
     mechanisms pertaining to the individual be included in the 
     individual's written plan.
       ``(F) The State shall establish a process for the mandatory 
     reporting, investigation, and resolution of allegations of 
     neglect, abuse, or exploitation in connection with the 
     provision of such services and supports.
       ``(G) The State shall obtain meaningful consumer input, 
     including consumer surveys, that measure the extent to which 
     an individual receives the services and supports described in 
     the individual's plan and the individual's satisfaction with 
     such services and supports.
       ``(H) The State shall make available to the public the 
     findings of the quality assurance system.
       ``(I) The State shall establish an ongoing public process 
     for the development, implementation, and review of the 
     State's quality assurance system.
       ``(J) The State shall develop and implement a program of 
     sanctions for providers of community-based services and 
     supports that violate the terms or conditions for the 
     provision of such services and supports.
       ``(2) Federal responsibilities.--
       ``(A) Periodic evaluations.--The Secretary shall conduct a 
     periodic sample review of outcomes for individuals who 
     receive community-based attendant services and supports under 
     this title.
       ``(B) Investigations.--The Secretary may conduct targeted 
     reviews and investigations upon receipt of an allegation of 
     neglect, abuse, or exploitation of an individual receiving 
     community-based attendant services and supports under this 
     section.
       ``(C) Development of provider sanction guidelines.--The 
     Secretary shall develop guidelines for States to use in 
     developing the sanctions required under paragraph (1)(J).
       ``(e) Reports.--The Secretary shall submit to Congress 
     periodic reports on the provision of community-based 
     attendant services and supports under this section, 
     particularly with respect to the impact of the provision of 
     such services and supports on--
       ``(1) individuals eligible for medical assistance under 
     this title;
       ``(2) States; and
       ``(3) the Federal Government.
       ``(f) No Effect on Ability to Provide Coverage.--
       ``(1) In general.--Nothing in this section shall be 
     construed as affecting the ability of a State to provide 
     coverage under the State plan for community-based attendant 
     services and supports (or similar coverage) under section 
     1905(a), section 1915, section 1115, or otherwise.
       ``(2) Eligibility for enhanced match.--In the case of a 
     State that provides coverage for such services and supports 
     under a waiver, the State shall not be eligible under 
     subsection (a)(2) for the enhanced FMAP for the early 
     provision of such coverage unless the State submits a plan 
     amendment to the Secretary that meets the requirements of 
     this section and demonstrates that the State is able to fully 
     comply with and implement the requirements of this section.
       ``(g) Definitions.--In this title:
       ``(1) Community-based attendant services and supports.--
       ``(A) In general.--The term `community-based 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 tasks 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 in 
     writing by the individual or, as appropriate, the 
     individual's representative;

[[Page S3678]]

       ``(ii) in a home or community setting, which shall include 
     but not be limited to a school, workplace, or recreation or 
     religious facility, but does not include a nursing facility, 
     institution for mental diseases, or an intermediate care 
     facility for the mentally retarded;
       ``(iii) under an agency-provider model or other model (as 
     defined in paragraph (2)(C));
       ``(iv) the furnishing of which--

       ``(I) is selected, managed, and dismissed by the 
     individual, or, as appropriate, with assistance from the 
     individual's representative; and
       ``(II) provided by an individual who is qualified to 
     provide such services, including family members (as defined 
     by the Secretary).

       ``(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 tasks;
       ``(ii) the acquisition, maintenance, and enhancement of 
     skills necessary for the individual to accomplish activities 
     of daily living, instrumental activities of daily living, and 
     health-related tasks;
       ``(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) the 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 month's rent 
     and utilities, bedding, basic kitchen supplies, and other 
     necessities required for an individual to make the transition 
     from a nursing facility, institution for mental diseases, 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 controlled.--The term `consumer controlled' 
     means a method of selecting and providing services and 
     supports that allow the individual, or where appropriate, the 
     individual's representative, maximum control of the 
     community-based 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-
     based attendant services and supports for an individual, 
     subject to clause (iii), a method of providing consumer 
     controlled services and supports under which entities 
     contract for the provision of such services and supports.
       ``(ii) Other models.--The term `other models' means, 
     subject to clause (iii), methods, other than an agency-
     provider model, for the provision of consumer controlled 
     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.
       ``(iii) Compliance with certain laws.--A State shall ensure 
     that, regardless of whether the State uses an agency-provider 
     model or other models to provide services and supports under 
     a State plan amendment under this section, such services and 
     supports are provided in accordance with the requirements of 
     the Fair Labor Standards Act of 1938 and applicable Federal 
     and State laws regarding--

       ``(I) withholding and payment of Federal and State income 
     and payroll taxes;
       ``(II) the provision of unemployment and workers 
     compensation insurance;
       ``(III) maintenance of general liability insurance; and
       ``(IV) occupational health and safety.

       ``(D) Health-related tasks.--The term `health-related 
     tasks' means specific tasks 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, but is 
     not limited to, 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 traveling around and 
     participating in the community.
       ``(F) Individuals representative.--The term `individual's 
     representative' means a parent, a family member, a guardian, 
     an advocate, or other authorized representative of an 
     individual.''.
       (c) Conforming Amendments.--
       (1) Mandatory benefit.--Section 1902(a)(10)(A) of the 
     Social Security Act (42 U.S.C. 1396a(a)(10)(A)) is amended, 
     in the matter preceding clause (i), by striking ``(17) and 
     (21)'' and inserting ``(17), (21), and (28)''.
       (2) Definition of medical assistance.--Section 1905(a) of 
     the Social Security Act (42 U.S.C. 1396d) is amended--
       (A) by striking ``and'' at the end of paragraph (27);
       (B) by redesignating paragraph (28) as paragraph (29); and
       (C) by inserting after paragraph (27) the following:
       ``(28) community-based attendant services and supports (to 
     the extent allowed and as defined in section 1943); and''.
       (3) IMD/ICFMR requirements.--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 (28)'' after ``(24)''.
       (d) Effective Dates.--
       (1) In general.--Except as provided in paragraph (2), the 
     amendments made by this section (other than the amendment 
     made by subsection (c)(1)) take effect on October 1, 2009, 
     and apply to medical assistance provided for community-based 
     attendant services and supports described in section 1943 of 
     the Social Security Act furnished on or after that date.
       (2) Mandatory benefit.--The amendment made by subsection 
     (c)(1) takes effect on October 1, 2014.

     SEC. 102. ENHANCED FMAP FOR ONGOING ACTIVITIES OF EARLY 
                   COVERAGE STATES THAT ENHANCE AND PROMOTE THE 
                   USE OF COMMUNITY-BASED ATTENDANT SERVICES AND 
                   SUPPORTS.

       (a) In General.--Section 1943 of the Social Security Act, 
     as added by section 101(b), is amended--
       (1) by redesignating subsections (d) through (g) as 
     subsections (f) through (i), respectively;
       (2) in subsection (a)(1), by striking ``subsection (g)(1)'' 
     and inserting ``subsection (i)(1)'';
       (3) in subsection (a)(2), by inserting ``, and with respect 
     to expenditures described in subsection (d), the Secretary 
     shall pay the State the amount described in subsection 
     (d)(1)'' before the period;
       (4) in subsection (c)(1)(C), by striking ``subsection 
     (g)(2)(B)'' and inserting ``subsection (i)(2)(B)''; and
       (5) by inserting after subsection (c), the following:
       ``(d) Increased Federal Financial Participation for Early 
     Coverage States That Meet Certain Benchmarks.--
       ``(1) In general.--Subject to paragraph (2), for purposes 
     of subsection (a)(2), the amount and expenditures described 
     in this subsection are an amount equal to the Federal medical 
     assistance percentage, increased by 10 percentage points, of 
     the expenditures incurred by the State for the provision or 
     conduct of the services or activities described in paragraph 
     (3).
       ``(2) Expenditure criteria.--A State shall--
       ``(A) develop criteria for determining the expenditures 
     described in paragraph (1) in collaboration with the 
     individuals and representatives described in subsection 
     (b)(1); and
       ``(B) submit such criteria for approval by the Secretary.
       ``(3) Services, supports and activities described.--For 
     purposes of paragraph (1), the services, supports and 
     activities described in this subparagraph are the following:
       ``(A) 1-stop intake, referral, and institutional diversion 
     services.
       ``(B) Identifying and remedying gaps and inequities in the 
     State's current provision of long-term services and supports, 
     particularly those services and supports that are provided 
     based on such factors as age, severity of disability, type of 
     disability, ethnicity, income, institutional bias, or other 
     similar factors.
       ``(C) Establishment of consumer participation and consumer 
     governance mechanisms, such as cooperatives and regional 
     service authorities, that are managed and controlled by 
     individuals with significant disabilities who use community-
     based services and supports or their representatives.
       ``(D) Activities designed to enhance the skills, earnings, 
     benefits, supply, career, and future prospects of workers who 
     provide community-based attendant services and supports.
       ``(E) Continuous, comprehensive quality improvement 
     activities that are designed to ensure and enhance the health 
     and well-being of individuals who rely on community-based 
     attendant services and supports, particularly activities 
     involving or initiated by consumers of such services and 
     supports or their representatives.
       ``(F) Family support services to augment the efforts of 
     families and friends to enable individuals with disabilities 
     of all ages to live in their own homes and communities.
       ``(G) Health promotion and wellness services and 
     activities.
       ``(H) Provider recruitment and enhancement activities, 
     particularly such activities that encourage the development 
     and maintenance of consumer controlled cooperatives or other 
     small businesses or micro-enterprises that provide community-
     based attendant services and supports or related services.
       ``(I) Activities designed to ensure service and systems 
     coordination.
       ``(J) Any other services or activities that the Secretary 
     deems appropriate.''.
       (b) Effective Date.--The amendments made by subsection (a) 
     take effect on October 1, 2009.

[[Page S3679]]

     SEC. 103. INCREASED FEDERAL FINANCIAL PARTICIPATION FOR 
                   CERTAIN EXPENDITURES.

       (a) In General.--Section 1943 of the Social Security Act, 
     as added by section 101(b) and amended by section 102, is 
     amended by inserting after subsection (d) the following:
       ``(e) Increased Federal Financial Participation for Certain 
     Expenditures.--
       ``(1) Eligibility for payment.--
       ``(A) In general.--In the case of a State that the 
     Secretary determines satisfies the requirements of 
     subparagraph (B), the Secretary shall pay the State the 
     amounts described in paragraph (2) in addition to any other 
     payments provided for under section 1903 or this section for 
     the provision of community-based attendant services and 
     supports.
       ``(B) Requirements.--The requirements of this subparagraph 
     are the following:
       ``(i) The State has an approved plan amendment under this 
     section.
       ``(ii) The State has incurred expenditures described in 
     paragraph (2).
       ``(iii) The State develops and submits to the Secretary 
     criteria to identify and select such expenditures in 
     accordance with the requirements of paragraph (3).
       ``(iv) The Secretary determines that payment of the 
     applicable percentage of such expenditures (as determined 
     under paragraph (2)(B)) would enable the State to provide a 
     meaningful choice of receiving community-based services and 
     supports to individuals with disabilities and elderly 
     individuals who would otherwise only have the option of 
     receiving institutional care.
       ``(2) Amounts and expenditures described.--
       ``(A) Expenditures in excess of 150 percent of baseline 
     amount.--The amounts and expenditures described in this 
     paragraph are an amount equal to the applicable percentage, 
     as determined by the Secretary in accordance with 
     subparagraph (B), of the expenditures incurred by the State 
     for the provision of community-based attendant services and 
     supports to an individual that exceed 150 percent of the 
     average cost of providing nursing facility services to an 
     individual who resides in the State and is eligible for such 
     services under this title, as determined in accordance with 
     criteria established by the Secretary.
       ``(B) Applicable percentage.--The Secretary shall establish 
     a payment scale for the expenditures described in 
     subparagraph (A) so that the Federal financial participation 
     for such expenditures gradually increases from 70 percent to 
     90 percent as such expenditures increase.
       ``(3) Specification of order of selection for 
     expenditures.--In order to receive the amounts described in 
     paragraph (2), a State shall--
       ``(A) develop, in collaboration with the individuals and 
     representatives described in subsection (b)(1) and pursuant 
     to guidelines established by the Secretary, criteria to 
     identify and select the expenditures submitted under that 
     paragraph; and
       ``(B) submit such criteria to the Secretary.''.
       (b) Effective Date.--The amendment made by subsection (a) 
     takes effect on October 1, 2009.

      TITLE II--PROMOTION OF SYSTEMS CHANGE AND CAPACITY BUILDING

     SEC. 201. GRANTS TO PROMOTE SYSTEMS CHANGE AND CAPACITY 
                   BUILDING.

       (a) Authority to Award Grants.--
       (1) In general.--The Secretary of Health and Human Services 
     (in this section referred to as the ``Secretary'') shall 
     award grants to eligible States to carry out the activities 
     described in subsection (b).
       (2) Application.--In order to be eligible for a grant under 
     this section, a State shall submit to the Secretary an 
     application in such form and manner, and that contains such 
     information, as the Secretary may require.
       (b) Permissible Activities.--A State that receives a grant 
     under this section may use funds provided under the grant for 
     any of the following activities, focusing on areas of need 
     identified by the State and the Consumer Task Force 
     established under subsection (c):
       (1) The development and implementation of the provision of 
     community-based attendant services and supports under section 
     1943 of the Social Security Act (as added by section 101(b) 
     and amended by sections 102 and 103) through active 
     collaboration with--
       (A) individuals with disabilities;
       (B) elderly individuals;
       (C) representatives of such individuals; and
       (D) providers of, and advocates for, services and supports 
     for such individuals.
       (2) Substantially involving individuals with significant 
     disabilities and representatives of such individuals in 
     jointly developing, implementing, and continually improving a 
     mutually acceptable comprehensive, effectively working 
     statewide plan for preventing and alleviating unnecessary 
     institutionalization of such individuals.
       (3) Engaging in system change and other activities deemed 
     necessary to achieve any or all of the goals of such 
     statewide plan.
       (4) Identifying and remedying disparities and gaps in 
     services to classes of individuals with disabilities and 
     elderly individuals who are currently experiencing or who 
     face substantial risk of unnecessary institutionalization.
       (5) Building and expanding system capacity to offer quality 
     consumer controlled community-based services and supports to 
     individuals with disabilities and elderly individuals, 
     including by--
       (A) seeding the development and effective use of community-
     based attendant services and supports cooperatives, 
     Independent Living Centers, small businesses, micro-
     enterprises, micro-boards, and similar joint ventures owned 
     and controlled by individuals with disabilities or 
     representatives of such individuals and community-based 
     attendant services and supports workers;
       (B) enhancing the choice and control individuals with 
     disabilities and elderly individuals exercise, including 
     through their representatives, with respect to the personal 
     assistance and supports they rely upon to lead independent, 
     self-directed lives;
       (C) enhancing the skills, earnings, benefits, supply, 
     career, and future prospects of workers who provide 
     community-based attendant services and supports;
       (D) engaging in a variety of needs assessment and data 
     gathering;
       (E) developing strategies for modifying policies, 
     practices, and procedures that result in unnecessary 
     institutional bias or the over-medicalization of long-term 
     services and supports;
       (F) engaging in interagency coordination and single point 
     of entry activities;
       (G) providing training and technical assistance with 
     respect to the provision of community-based attendant 
     services and supports;
       (H) engaging in--
       (i) public awareness campaigns;
       (ii) facility-to-community transitional activities; and
       (iii) demonstrations of new approaches; and
       (I) engaging in other systems change activities necessary 
     for developing, implementing, or evaluating a comprehensive 
     statewide system of community-based attendant services and 
     supports.
       (6) Ensuring that the activities funded by the grant are 
     coordinated with other efforts to increase personal attendant 
     services and supports, including--
       (A) programs funded under or amended by the Ticket to Work 
     and Work Incentives Improvement Act of 1999 (Public Law 106-
     170; 113 Stat. 1860);
       (B) grants funded under the Families of Children With 
     Disabilities Support Act of 2000 (42 U.S.C. 15091 et seq.); 
     and
       (C) other initiatives designed to enhance the delivery of 
     community-based services and supports to individuals with 
     disabilities and elderly individuals.
       (7) Engaging in transition partnership activities with 
     nursing facilities and intermediate care facilities for the 
     mentally retarded that utilize and build upon items and 
     services provided to individuals with disabilities or elderly 
     individuals under the Medicaid program under title XIX of the 
     Social Security Act, or by Federal, State, or local housing 
     agencies, Independent Living Centers, and other organizations 
     controlled by consumers or their representatives.
       (c) 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 subsection 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, elderly individuals, representatives of such 
     individuals, and organizations interested in individuals with 
     disabilities and elderly individuals.
       (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, Mental Health Councils, 
     State Independent Living Centers and 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 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 entities described in 
     the Developmental Disabilities Assistance and Bill of Rights 
     Act of 2000 (42 U.S.C. 15001 et seq.).
       (d) Annual Report.--
       (1) States.--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 in such form and manner 
     as the Secretary may require.
       (2) Secretary.--The Secretary shall submit to Congress an 
     annual report on the grants made under this section.
       (e) Authorization of Appropriations.--
       (1) In general.--There is authorized to be appropriated to 
     carry out this section, $50,000,000 for each of fiscal years 
     2010 through 2012.
       (2) Availability.--Amounts appropriated to carry out this 
     section shall remain available without fiscal year 
     limitation.

[[Page S3680]]

     SEC. 202. DEMONSTRATION PROJECT TO ENHANCE COORDINATION OF 
                   CARE UNDER THE MEDICARE AND MEDICAID PROGRAMS 
                   FOR DUAL ELIGIBLE INDIVIDUALS.

       (a) Definitions.--In this section:
       (1) Dually eligible individual.--The term ``dually eligible 
     individual'' means an individual who is enrolled in the 
     Medicare and Medicaid programs established under Titles XVIII 
     and XIX, respectively, of the Social Security Act (42 U.S.C. 
     1395 et seq., 1396 et seq.).
       (2) Project.--The term ``project'' means the demonstration 
     project authorized to be conducted under this section.
       (3) Secretary.--The term ``Secretary'' means the Secretary 
     of Health and Human Services.
       (b) Authority to Conduct Project.--The Secretary shall 
     conduct a project under this section for the purpose of 
     evaluating service coordination and cost-sharing approaches 
     with respect to the provision of community-based services and 
     supports to dually eligible individuals.
       (c) Requirements.--
       (1) Number of participants.--Not more than 5 States may 
     participate in the project.
       (2) Application.--A State that desires to participate in 
     the project shall submit an application to the Secretary, at 
     such time and in such form and manner as the Secretary shall 
     specify.
       (3) Duration.--The project shall be conducted for at least 
     5, but not more than 10 years.
       (d) Evaluation and Report.--
       (1) Evaluation.--Not later than 1 year prior to the 
     termination date of the project, the Secretary, in 
     consultation with States participating in the project, 
     representatives of dually eligible individuals, and others, 
     shall evaluate the impact and effectiveness of the project.
       (2) Report.--The Secretary shall submit a report to 
     Congress that contains the findings of the evaluation 
     conducted under paragraph (1) along with recommendations 
     regarding whether the project should be extended or expanded, 
     and any other legislative or administrative actions that the 
     Secretary considers appropriate as a result of the project.
       (e) Authorization of Appropriations.--There are authorized 
     to be appropriated such sums as are necessary to carry out 
     this section.
                                 ______