[Congressional Record Volume 160, Number 99 (Tuesday, June 24, 2014)]
[Senate]
[Pages S3940-S3941]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

      By Mr. HARKIN:
  S. 2515. A bill to ensure that Medicaid beneficiaries have the 
opportunity to receive care in a home and community-based setting; to 
the Committee on Finance.
  Mr. HARKIN. Mr. President, I ask unanimous consent that the text of 
the bill be printed in the Record.
  There being on objection, the text of the bill was ordered to be 
printed in the Record, as follows:

                                S. 2515

       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 ``Community Integration Act of 
     2014''.

     SEC. 2. FINDINGS.

       Congress finds the following:
       (1) The Supreme Court's 1999 decision in Olmstead v. L.C., 
     527 U.S. 581 (1999), held that the unnecessary segregation of 
     individuals with disabilities is a violation of the Americans 
     with Disabilities Act of 1990 (42 U.S.C. 12101 et seq.).
       (2) Under Olmstead, individuals generally have the right to 
     receive their supports and services in home and community-
     based settings, rather than in institutional settings, if 
     they so choose.
       (3) Olmstead envisioned that States would provide 
     appropriate long-term services and supports to individuals 
     with disabilities through home and community-based services 
     and end forced segregation in nursing homes and other 
     institutions.
       (4) While there has been progress in rebalancing State 
     spending on individuals with disabilities in institutions as 
     compared to home and community-based settings, more than 75 
     percent of States continue to spend the majority of their 
     long-term care dollars on nursing homes and other 
     institutional settings, and the number of individuals with 
     disabilities under age 65 in nursing homes increased between 
     2008 and 2012.
       (5) As of June 2013, there were more than 200,000 
     individuals younger than age 65 in nursing homes - almost 16 
     percent of the total nursing home population.
       (6) Thirty-eight studies published from 2005 to 2012 
     concluded that providing services in home and community-based 
     settings is less costly than providing care in a nursing home 
     or other institutional setting.
       (7) No clear or centralized reporting system exists to 
     compare how effectively States are meeting the Olmstead 
     mandate.

     SEC. 3. ENSURING MEDICAID BENEFICIARIES MAY ELECT TO RECEIVE 
                   CARE IN A HOME AND COMMUNITY-BASED SETTING.

       (a) In General.--Section 1902(a) of the Social Security Act 
     (42 U.S.C. 1396a(a)) is amended--
       (1) in paragraph (80), by striking ``and'' at the end;
       (2) in paragraph (81), by striking the period and inserting 
     ``; and''; and
       (3) by inserting after paragraph (81) the following new 
     paragraph:
       ``(82) in the case of any individual with respect to whom 
     there has been a determination that the individual requires 
     the level of care provided in a nursing facility, 
     intermediate care facility for the mentally retarded, 
     institution for mental disease, or other similarly 
     restrictive or institutional setting--
       ``(A) provide the individual with the choice and 
     opportunity to receive such care in a home and community-
     based setting, including rehabilitative services, assistance 
     and support in accomplishing activities of daily living, 
     instrumental activities of daily living, and health-related 
     tasks, and assistance in acquiring, maintaining, or enhancing 
     skills necessary to accomplish such activities, tasks, or 
     services;
       ``(B) ensure that each such individual has an equal 
     opportunity (when compared to the receipt and availability of 
     nursing facility services) to receive care in a home and 
     community-based setting, if the individual so chooses, by 
     ensuring that the provision of such care in a home and 
     community-based setting is widely available on a statewide 
     basis for all such individuals within the State; and
       ``(C) meet the requirements of section 1904A (relating to 
     the provision of care in a home and community-based 
     setting).''.
       (b) Requirements for Community Care Options.--Title XIX of 
     the Social Security Act (42 U.S.C. 1396 et seq.) is amended 
     by inserting after section 1904 the following new section:


         ``provisions related to home and community-based care

       ``Sec. 1904A.  (a) Definitions.--For purposes of this 
     section, section 1902(a)(82), and section 1905(a)(4)(A):
       ``(1) Activities of daily living.--The term `activities of 
     daily living' includes, but is not limited to, tasks such as 
     eating, toileting, grooming, dressing, bathing, and 
     transferring.
       ``(2) Health-related tasks.--The term `health-related 
     tasks' means specific tasks related to the needs of an 
     individual, including, but not limited to, bowel or bladder 
     care, wound care, use and care of ventilators and feeding 
     tubes, and the administration of medications and injections, 
     which, in the opinion of the individual's physician, can be 
     delegated to be performed by an attendant.
       ``(3) Home and community-based setting.--The term `home and 
     community-based setting' means, with respect to an individual 
     who requires a level of care provided in a nursing facility, 
     intermediate care facility for the mentally retarded, 
     institution for mental disease, or other similarly 
     restrictive or institutional setting, a setting that--
       ``(A) includes a house, apartment, townhouse, condominium, 
     or similar public or private housing where the individual 
     resides that--
       ``(i) is owned or leased by the individual or a member of 
     the individual's family;
       ``(ii) ensures the individual's privacy, dignity, respect, 
     and freedom from coercion; and
       ``(iii) maximizes the individual's autonomy and 
     independence;
       ``(B) is integrated in, and provides access to, the general 
     community in which the setting is located so that the 
     individual has access to the community and opportunities to 
     seek employment and work in competitive integrated settings, 
     participate in community life, control and utilize personal 
     resources, benefit from community services, and participate 
     in the community in an overall manner that is comparable to 
     that available to individuals who are not individuals with 
     disabilities; and
       ``(C) has the services and supports that the individual 
     needs in order to live as independently as possible.
       ``(4) Instrumental activities of daily living.--The term 
     `instrumental activities of daily living' means activities 
     related to living independently in the community and 
     includes, but is not limited to, meal planning and 
     preparation, managing finances, shopping for food, clothing, 
     and other items, performing household chores, communicating 
     by phone or other media, and traveling around and 
     participating in the community.
       ``(5) Public entity.--The term `public entity' means a 
     public entity as defined in subparagraphs (A) and (B) of 
     section 201(1) of the Americans with Disabilities Act of 
     1990.
       ``(b) Requirements for Providing Services in Home and 
     Community-based Settings.--With respect to the availability 
     and provision of services under the State plan under this 
     title, or under any waiver of State plan requirements 
     (subject to section 3(d) of the Community Integration Act of 
     2014), in a home and community-based setting to any 
     individual who requires a level of care provided in a nursing 
     facility, intermediate care facility for the mentally 
     retarded, institution for mental disease, or other similarly 
     restrictive or institutional setting, any public entity that 
     receives payment under the State plan or waiver for providing 
     services to such an individual shall not--
       ``(1) impose or utilize policies, practices, or procedures, 
     such as unnecessary requirements or arbitrary service or cost 
     caps, that limit the availability of services in home and 
     community-based settings to an individual with a disability 
     (including individuals with the most significant 
     disabilities) who need such services;
       ``(2) impose or utilize policies, practices, or procedures 
     that limit the availability of services in a home and 
     community-based setting (including assistance and support in 
     accomplishing activities of daily living, instrumental 
     activities of daily living, health-related tasks, and 
     rehabilitative services) based on the specific disability of 
     an otherwise eligible individual;
       ``(3) impose or utilize policies, practices, or procedures 
     that arbitrarily restrict an individual with a disability 
     from full and meaningful participation in community life;
       ``(4) impose or utilize policies, practices, or procedures 
     that unnecessarily delay or restrict the provision of 
     services in a home and community-based setting to any 
     individual who requires such services;
       ``(5) fail to establish and utilize adequate payment 
     structures to maintain a sufficient workforce to provide 
     services in home and community-based settings to any 
     individual who requires such services;
       ``(6) fail to provide information, on an ongoing basis, to 
     help any individual who receives care in a nursing facility, 
     intermediate care facility for the mentally retarded, 
     institution for mental disease, or

[[Page S3941]]

     other similarly restrictive or institutional setting, 
     understand the individual's right to choose to receive such 
     care in a home and community-based setting; or
       ``(7) fail to provide information to help any individual 
     that requires the level of care provided in a nursing 
     facility, intermediate care facility for the mentally 
     retarded, institution for mental disease, or other similarly 
     restrictive or institutional setting, prior to the 
     individual's placement in such a facility or institution, 
     understand the individual's right to choose to receive such 
     care in a home and community-based setting.
       ``(c) Plan to Increase Affordable and Accessible Housing.--
     Not later than 180 days after the enactment of this section, 
     each State shall develop a statewide plan to increase the 
     availability of affordable and accessible private and public 
     housing stock for individuals with disabilities (including 
     accessible housing for individuals with physical disabilities 
     and those using mobility devices).
       ``(d) Availability of Remedies and Procedures.--
       ``(1) In general.--The remedies and procedures set forth in 
     sections 203 and 505 of the Americans with Disabilities Act 
     of 1990 shall be available to any person aggrieved by the 
     failure of--
       ``(A) a State to comply with this section or section 
     1902(a)(82); or
       ``(B) a public entity (including a State) to comply with 
     the requirements of subsection (b).
       ``(2) Rule of construction.--Nothing in paragraph (1) shall 
     be construed to limit any remedy or right of action that 
     otherwise is available to an aggrieved person under this 
     title.
       ``(e) Enforcement by the Secretary.--
       ``(1) In general.--The Secretary may reduce the Federal 
     matching assistance percentage applicable to the State (as 
     determined under section 1905(b)) if the Secretary determines 
     that the State has violated the requirements of subsection 
     (b).
       ``(2) Rule of construction.--Nothing in paragraph (1) shall 
     be construed to limit any remedy or right of action that is 
     otherwise available to the Secretary.
       ``(f) Reporting Requirements.--With respect to fiscal year 
     2016, and for each fiscal year thereafter, each State shall 
     submit to the Administrator of the Administration for 
     Community Living of the Department of Health and Human 
     Services, not later than April 1 of the succeeding fiscal 
     year, a report, in such form and manner as the Secretary 
     shall require, that includes--
       ``(1) the total number of individuals enrolled in the State 
     plan or under a waiver of the plan during such fiscal year 
     that required the level of care provided in a nursing 
     facility, intermediate care facility for the mentally 
     retarded, institution for mental disease, or other similarly 
     restrictive or institutional setting, disaggregated by the 
     type of facility or setting;
       ``(2) with respect to the total number described in 
     paragraph (1), the total number of individuals described in 
     that paragraph who received care in a nursing facility, 
     intermediate care facility for the mentally retarded, 
     institution for mental disease, or other similarly 
     restrictive or institutional setting, disaggregated by the 
     type of facility or setting; and
       ``(3) with respect to the total number described in 
     paragraph (2), the total number of individuals described in 
     that paragraph who were transitioned from a nursing facility, 
     intermediate care facility for the mentally retarded, 
     institution for mental disease, or other similarly 
     restrictive or institutional setting to a home and community-
     based setting, disaggregated by the type of home and 
     community-based setting.''.
       (c) Inclusion as a Mandatory Service.--Section 
     1905(a)(4)(A) of the Social Security Act (42 U.S.C. 
     1396d(a)(4)(A)) is amended by striking ``other than'' and 
     inserting ``including similar services such as rehabilitative 
     services and assistance and support in accomplishing 
     activities of daily living, instrumental activities of daily 
     living, and health-related tasks, that are provided, at the 
     individual's option, in a home and community-based setting 
     (as defined in section 1904A(a)(3)), but not including''.
       (d) Application to Waivers.--Notwithstanding section 1904A 
     of the Social Security Act (as added by subsection (b)), such 
     section, and sections 1902(a)(82), and 1905(a)(4)(A) of the 
     Social Security Act (42 U.S.C. 1396 et seq.), as amended by 
     subsections (a) and (c), respectively, shall not apply to any 
     individuals who are eligible for medical assistance for home 
     and community-based services under a waiver under section 
     1115 or 1915 of the Social Security Act (42 U.S.C. 1315, 
     1396n) and who are receiving such services, to the extent 
     such sections (as so added or amended) are inconsistent with 
     any such waiver.
       (e) Effective Date.--
       (1) In general.--Except as provided in paragraph (2), the 
     amendments made by this section shall take effect on October 
     1, 2014.
       (2) Delay permitted if state legislation required.--In the 
     case of a State plan under section 1902 of the Social 
     Security Act (42 U.S.C. 1396a) which the Secretary of Health 
     and Human Services determines requires State legislation 
     (other than legislation appropriating funds) in order for the 
     plan to meet the additional requirements imposed by the 
     amendments made by this section, the State plan shall not be 
     regarded as failing to comply with the requirements of such 
     section 1902 solely on the basis of the failure of the plan 
     to meet such additional requirements before the 1st day of 
     the 1st calendar quarter beginning after the close of the 1st 
     regular session of the State legislature that begins after 
     the date of enactment of this Act. For purposes of the 
     previous sentence, in the case of a State that has a 2-year 
     legislative session, each year of such session shall be 
     deemed to be a separate regular session of the State 
     legislature.
                                 ______