[Congressional Record Volume 163, Number 61 (Friday, April 7, 2017)]
[Senate]
[Pages S2451-S2457]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




          STATEMENTS ON INTRODUCED BILLS AND JOINT RESOLUTIONS

      By Mr. SCHUMER (for himself, Mr. Casey, and Ms. Warren):
  S. 910. A bill to prohibit discrimination against individuals with 
disabilities who need long-term services and supports, and for other 
purposes; to the Committee on Health, Education, Labor, and Pensions.
  Mr. SCHUMER. 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. 910

       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 ``Disability Integration Act 
     of 2017''.

     SEC. 2. FINDINGS AND PURPOSES.

       (a) Findings.--Congress finds the following:
       (1) In enacting the Americans with Disabilities Act of 1990 
     (referred to in this Act as the ``ADA''), Congress--
       (A) recognized that ``historically, society has tended to 
     isolate and segregate individuals with disabilities, and, 
     despite some improvements, such forms of discrimination 
     against individuals with disabilities continue to be a 
     serious and pervasive social problem''; and
       (B) intended that the ADA assure ``full participation'' and 
     ``independent living'' for individuals with disabilities by 
     addressing ``discrimination against individuals with 
     disabilities [that] persists in critical areas'', including 
     institutionalization.
       (2) While Congress expected that the ADA's integration 
     mandate would be interpreted in a manner that ensures that 
     individuals who are eligible for institutional placement are 
     able to exercise a right to community-based long-term 
     services and supports, that expectation has not been 
     fulfilled.
       (3) The holdings of the Supreme Court in Olmstead v. L.C., 
     527 U.S. 581 (1999), and companion cases, have clearly 
     articulated that individuals with disabilities have a civil 
     right under the ADA to participate in society as equal 
     citizens. However, many States still do not provide 
     sufficient community-based long-term services and supports to 
     individuals with disabilities to end segregation in 
     institutions.
       (4) The right to live in the community is necessary for the 
     exercise of the civil rights that the ADA was intended to 
     secure for all individuals with disabilities. The lack of 
     adequate community-based services and supports has imperiled 
     the civil rights of all individuals with disabilities, and 
     has undermined the very promise of the ADA. It is, therefore, 
     necessary to recognize in statute a robust and fully 
     articulated right to community living.
       (5) States, with a few exceptions, continue to approach 
     decisions regarding long-term services and supports from 
     social welfare and budgetary perspectives, but for the 
     promise of the ADA to be fully realized, States must approach 
     these decisions from a civil rights perspective.
       (6) States have not consistently planned to ensure 
     sufficient services and supports for individuals with 
     disabilities, including those with the most significant 
     disabilities, to enable individuals with disabilities to live 
     in the most integrated setting. As a result, many individuals 
     with disabilities who reside in institutions are prevented 
     from residing in the community and individuals with 
     disabilities who are not in institutions find themselves at 
     risk of institutional placement.
       (7) The continuing existence of unfair and unnecessary 
     institutionalization denies individuals with disabilities the 
     opportunity to live and participate on an equal basis in the 
     community and costs the United States billions of dollars in 
     unnecessary spending related to perpetuating dependency and 
     unnecessary confinement.
       (b) Purposes.--The purposes of this Act are--
       (1) to clarify and strengthen the ADA's integration mandate 
     in a manner that accelerates State compliance;
       (2) to clarify that every individual who is eligible for 
     long-term services and supports has a Federally protected 
     right to be meaningfully integrated into that individual's 
     community and receive community-based long-term services and 
     supports;
       (3) to ensure that States provide long-term services and 
     supports to individuals with disabilities in a manner that 
     allows individuals with disabilities to live in the most 
     integrated setting, including the individual's own home, have 
     maximum control over their services and supports, and ensure 
     that long-term services and supports are provided in a manner 
     that allows individuals with disabilities to lead an 
     independent life;

[[Page S2452]]

       (4) to establish a comprehensive State planning requirement 
     that includes enforceable, measurable objectives that are 
     designed to transition individuals with all types of 
     disabilities at all ages out of institutions and into the 
     most integrated setting; and
       (5) to establish a requirement for clear and uniform annual 
     public reporting by States that includes reporting about--
       (A) the number of individuals with disabilities who are 
     served in the community and the number who are served in 
     institutions; and
       (B) the number of individuals with disabilities who have 
     transitioned from an institution to a community-based living 
     situation, and the type of community-based living situation 
     into which those individuals have transitioned.

     SEC. 3. DEFINITIONS AND RULE.

       (a) Definitions.--In this Act:
       (1) Activities of daily living.--The term ``activities of 
     daily living'' has the meaning given the term in section 
     441.505 of title 42, Code of Federal Regulations (or a 
     successor regulation).
       (2) Administrator.--The term ``Administrator'' means--
       (A) the Administrator of the Administration for Community 
     Living; or
       (B) another designee of the Secretary of Health and Human 
     Services.
       (3) Community-based.--The term ``community-based'', when 
     used in reference to services or supports, means services or 
     supports that are provided to an individual with an LTSS 
     disability to enable that individual to live in the community 
     and lead an independent life, and that are delivered in 
     whichever setting the individual with an LTSS disability has 
     chosen out of the following settings with the following 
     qualities:
       (A) In the case of a dwelling or a nonresidential setting 
     (such as a setting in which an individual with an LTSS 
     disability receives day services and supported employment), a 
     dwelling or setting--
       (i) that, as a matter of infrastructure, environment, 
     amenities, location, services, and features, is integrated 
     into the greater community and supports, for each individual 
     with an LTSS disability who receives services or supports at 
     the setting--

       (I) full access to the greater community (including access 
     to opportunities to seek employment and work in competitive 
     integrated settings, engage in community life, control 
     personal resources, and receive services in the community); 
     and
       (II) access to the greater community to the same extent as 
     access to the community is enjoyed by an individual who is 
     not receiving long-term services or supports;

       (ii) that the individual has selected as a meaningful 
     choice from among nonresidential setting options, including 
     nondisability-specific settings;
       (iii) in which an individual has rights to privacy, 
     dignity, and respect, and freedom from coercion and 
     restraint;
       (iv) that, as a matter of infrastructure, environment, 
     amenities, location, services, and features, optimizes, but 
     does not regiment, individual initiative, autonomy, and 
     independence in making life choices, including choices about 
     daily activities, physical environment, and persons with whom 
     the individual interacts; and
       (v) that, as a matter of infrastructure, environment, 
     amenities, location, services, and features, facilitates 
     individual choice regarding the provision of services and 
     supports, and who provides those services and supports.
       (B) In the case of a dwelling, a dwelling--
       (i) that is owned by an individual with an LTSS disability 
     or the individual's family member;
       (ii) that is leased to the individual with an LTSS 
     disability under an individual lease, that has lockable 
     access and egress, and that includes living, sleeping, 
     bathing, and cooking areas over which an individual with an 
     LTSS disability or the individual's family member has domain 
     and control; or
       (iii) that is a group or shared residence--

       (I) in which no more than 4 unrelated individuals with an 
     LTSS disability reside;
       (II) for which each individual with an LTSS disability 
     living at the residence owns, rents, or occupies the 
     residence under a legally enforceable agreement under which 
     the individual has, at a minimum, the same responsibilities 
     and protections as tenants have under applicable landlord-
     tenant law;
       (III) in which each individual with an LTSS disability 
     living at the residence--

       (aa) has privacy in the individual's sleeping unit, 
     including a lockable entrance door controlled by the 
     individual;
       (bb) shares a sleeping unit only if such individual and the 
     individual sharing the unit choose to do so, and if 
     individuals in the residence so choose, they also have a 
     choice of roommates within the residence;
       (cc) has the freedom to furnish and decorate the 
     individual's sleeping or living unit as permitted under the 
     lease or other agreement;
       (dd) has the freedom and support to control the 
     individual's own schedules and activities; and
       (ee) is able to have visitors of the individual's choosing 
     at any time; and

       (IV) that is physically accessible to the individual with 
     an LTSS disability living at the residence.

       (4) Dwelling.--The term ``dwelling'' has the meaning given 
     the term in section 802 of the Fair Housing Act (42 U.S.C. 
     3602).
       (5) Health-related tasks.--The term ``health-related 
     tasks'' means specific nonacute tasks, typically regulated by 
     States as medical or nursing tasks that an individual with a 
     disability may require to live in the community, including--
       (A) administration of medication;
       (B) assistance with use, operation, and maintenance of a 
     ventilator; and
       (C) maintenance and use of a gastrostomy tube, a catheter, 
     or a stable ostomy.
       (6) Individual with a disability.--The term ``individual 
     with a disability'' means an individual who is a person with 
     a disability, as defined in section 3 of the Americans with 
     Disabilities Act of 1990 (42 U.S.C. 12102).
       (7) Individual with an ltss disability.--The term 
     ``individual with an LTSS disability'' means an individual 
     with a disability who--
       (A) in order to live in the community and lead an 
     independent life requires assistance in accomplishing--
       (i) activities of daily living;
       (ii) instrumental activities of daily living;
       (iii) health-related tasks; or
       (iv) other functions, tasks, or activities related to an 
     activity or task described in clause (i), (ii), or (iii); and
       (B)(i) is currently in an institutional placement; or
       (ii) is at risk of institutionalization if the individual 
     does not receive community-based long-term services and 
     supports.
       (8) Instrumental activities of daily living.--
       (A) In general.--The term ``instrumental activities of 
     daily living'' means 1 or more activities related to living 
     independently in the community, including activities related 
     to--
       (i) nutrition, such as preparing meals or special diets, 
     monitoring to prevent choking or aspiration, or assisting 
     with special utensils;
       (ii) household chores and environmental maintenance tasks;
       (iii) communication and interpersonal skills, such as--

       (I) using the telephone or other communications devices;
       (II) forming and maintaining interpersonal relationships; 
     or
       (III) securing opportunities to participate in group 
     support or peer-to-peer support arrangements;

       (iv) travel and community participation, such as shopping, 
     arranging appointments, or moving around the community;
       (v) care of others, such as raising children, taking care 
     of pets, or selecting caregivers; or
       (vi) management of personal property and personal safety, 
     such as--

       (I) taking medication;
       (II) handling or managing money; or
       (III) responding to emergent situations or unscheduled 
     needs requiring an immediate response.

       (B) Assistance.--The term ``assistance'' used with respect 
     to instrumental activities of daily living, includes support 
     provided to an individual by another person due to confusion, 
     dementia, behavioral symptoms, or cognitive, intellectual, 
     mental, or emotional disabilities, including support to--
       (i) help the individual identify and set goals, overcome 
     fears, and manage transitions;
       (ii) help the individual with executive functioning, 
     decisionmaking, and problem solving;
       (iii) provide reassurance to the individual; and
       (iv) help the individual with orientation, memory, and 
     other activities related to independent living.
       (9) Long-term service or support.--The terms ``long-term 
     service or support'' and ``LTSS'' mean the assistance 
     provided to an individual with a disability in accomplishing, 
     acquiring the means or ability to accomplish, maintaining, or 
     enhancing--
       (A) activities of daily living;
       (B) instrumental activities of daily living;
       (C) health-related tasks; or
       (D) other functions, tasks, or activities related to an 
     activity or task described in subparagraph (A), (B), or (C).
       (10) LTSS insurance provider.--The term ``LTSS insurance 
     provider'' means a public or private entity that--
       (A) provides funds for long-term services and supports; and
       (B) is engaged in commerce or in an industry or activity 
     affecting commerce.
       (11) Public entity.--
       (A) In general.--The term ``public entity'' means an entity 
     that--
       (i) provides or funds institutional placements for 
     individuals with LTSS disabilities; and
       (ii) is--

       (I) a State or local government; or
       (II) any department, agency, entity administering a special 
     purpose district, or other instrumentality, of a State or 
     local government.

       (B) Interstate commerce.--For purposes of subparagraph (A), 
     a public entity shall be considered to be a person engaged in 
     commerce or in an industry or activity affecting commerce.
       (b) Rule of Construction.--Nothing in subsection (a)(2) or 
     any other provision of this section shall be construed to 
     preclude an individual with a disability from receiving 
     community-based services and supports in an integrated 
     community setting such as a grocery store, retail 
     establishment, restaurant,

[[Page S2453]]

     bank, park, concert venue, theater, or workplace.

     SEC. 4. DISCRIMINATION.

       (a) In General.--No public entity or LTSS insurance 
     provider shall deny an individual with an LTSS disability who 
     is eligible for institutional placement, or otherwise 
     discriminate against that individual in the provision of, 
     community-based long-term services and supports that enable 
     the individual to live in the community and lead an 
     independent life.
       (b) Specific Prohibitions.--For purposes of this Act, 
     discrimination by a public entity or LTSS insurance provider 
     includes--
       (1) the imposition or application of eligibility criteria 
     or another policy that prevents or tends to prevent an 
     individual with an LTSS disability, or any class of 
     individuals with LTSS disabilities, from receiving a 
     community-based long-term service or support;
       (2) the imposition or application of a policy or other 
     mechanism, such as a service or cost cap, that prevent or 
     tends to prevent an individual with an LTSS disability, or 
     any class of individuals with LTSS disabilities, from 
     receiving a community-based long-term service or support;
       (3) a failure to provide a specific community-based long-
     term service or support or a type of community-based long-
     term service or support needed for an individual with an LTSS 
     disability, or any class of individuals with LTSS 
     disabilities;
       (4) the imposition or application of a policy, rule, 
     regulation, or restriction that interferes with the 
     opportunity for an individual with an LTSS disability, or any 
     class of individuals with LTSS disabilities, to live in the 
     community and lead an independent life, which may include a 
     requirement that an individual with an LTSS disability 
     receive a service or support (such as day services or 
     employment services) in a congregate or disability-specific 
     setting;
       (5) the imposition or application of a waiting list or 
     other mechanism that delays or restricts access of an 
     individual with an LTSS disability to a community-based long-
     term service or support;
       (6) a failure to establish an adequate rate or other 
     payment structure that is necessary to ensure the 
     availability of a workforce sufficient to support an 
     individual with an LTSS disability in living in the community 
     and leading an independent life;
       (7) a failure to provide community-based services and 
     supports, on an intermittent, short-term, or emergent basis, 
     that assist an individual with an LTSS disability to live in 
     the community and lead an independent life;
       (8) the imposition or application of a policy, such as a 
     requirement that an individual utilize informal support, that 
     restricts, limits, or delays the ability of an individual 
     with an LTSS disability to secure a community-based long-term 
     service or support to live in the community or lead an 
     independent life;
       (9) a failure to implement a formal procedure and a 
     mechanism to ensure that--
       (A) individuals with LTSS disabilities are offered the 
     alternative of community-based long-term services and 
     supports prior to institutionalization; and
       (B) if selected by an individual with an LTSS disability, 
     the community-based long-term services and supports described 
     in subparagraph (A) are provided;
       (10) a failure to ensure that each institutionalized 
     individual with an LTSS disability is regularly notified of 
     the alternative of community-based long-term services and 
     supports and that those community-based long-term services 
     and supports are provided if the individual with an LTSS 
     disability selects such services and supports; and
       (11) a failure to make a reasonable modification in a 
     policy, practice, or procedure, when such modification is 
     necessary to allow an individual with an LTSS disability to 
     receive a community-based long-term service or support.
       (c) Additional Prohibition.--For purposes of this Act, 
     discrimination by a public entity also includes a failure to 
     ensure that there is sufficient availability of affordable, 
     accessible, and integrated housing to allow an individual 
     with an LTSS disability to choose to live in the community 
     and lead an independent life, including the availability of 
     an option to live in housing where the receipt of LTSS is not 
     tied to tenancy.
       (d) Construction.--Nothing in this section--
       (1) shall be construed--
       (A) to prevent a public entity or LTSS insurance provider 
     from providing community-based long-term services and 
     supports at a level that is greater than the level that is 
     required by this section; or
       (B) to limit the rights of an individual with a disability 
     under any provision of law other than this section; or
       (2) (including subsection (b)(3)) shall be construed to 
     prohibit a public entity or LTSS insurance provider from 
     using managed care techniques, as long as an individual 
     described in subsection (a) whose care is managed through 
     such techniques receives the services and supports described 
     in subsection (a).

     SEC. 5. ADMINISTRATION.

       (a) Authority and Responsibility.--
       (1) Department of justice.--The Attorney General shall--
       (A) investigate and take enforcement action for violations 
     of this Act; and
       (B) enforce section 6(c).
       (2) Department of health and human services.--The Secretary 
     of Health and Human Services, through the Administrator, 
     shall--
       (A) conduct studies regarding the nature and extent of 
     institutionalization of individuals with LTSS disabilities in 
     representative communities, including urban, suburban, and 
     rural communities, throughout the United States;
       (B) publish and disseminate reports, recommendations, and 
     information derived from such studies, including an annual 
     report to Congress, specifying--
       (i) the nature and extent of progress in the United States 
     in eliminating institutionalization for individuals with LTSS 
     disabilities in violation of this Act and furthering the 
     purposes of this Act;
       (ii) obstacles that remain in the effort to achieve the 
     provision of community-based long-term services and supports 
     for all individuals with LTSS disabilities; and
       (iii) recommendations for further legislative or executive 
     action;
       (C) cooperate with, and provide technical assistance to, 
     Federal, State, and local public or private agencies and 
     organizations that are formulating or carrying out programs 
     to prevent or eliminate institutionalization of individuals 
     with LTSS disabilities or to promote the provision of 
     community-based long-term services and supports;
       (D) implement educational and conciliatory activities to 
     further the purposes of this Act; and
       (E) refer information on violations of this Act to the 
     Attorney General for investigation and enforcement action 
     under this Act.
       (b) Cooperation of Executive Departments and Agencies.--
     Each Federal agency and, in particular, each Federal agency 
     covered by Executive Order 13217 (66 Fed. Reg. 33155; 
     relating to community-based alternatives for individuals with 
     disabilities), shall carry out programs and activities 
     relating to the institutionalization of individuals with LTSS 
     disabilities and the provision of community-based long-term 
     services and supports for individuals with LTSS disabilities 
     in accordance with this Act and shall cooperate with the 
     Attorney General and the Administrator to further the 
     purposes of this Act.

     SEC. 6. REGULATIONS.

       (a) Issuance of Regulations.--Not later than 24 months 
     after the date of enactment of this Act, the Attorney General 
     and the Secretary of Health and Human Services shall issue, 
     in accordance with section 553 of title 5, United States 
     Code, final regulations to carry out this Act, which shall 
     include the regulations described in subsection (b).
       (b) Required Contents of Regulations.--
       (1) Eligible recipients of service.--The regulations shall 
     require each public entity and LTSS insurance provider to 
     offer, and, if accepted, provide community-based long-term 
     services and supports as required under this Act to any 
     individual with an LTSS disability who would otherwise 
     qualify for institutional placement provided or funded by the 
     public entity or LTSS insurance provider.
       (2) Services to be provided.--The regulations issued under 
     this section shall require each public entity and LTSS 
     insurance provider to provide the Attorney General and the 
     Administrator with an assurance that the public entity or 
     LTSS insurance provider--
       (A) ensures that individuals with LTSS disabilities receive 
     assistance through hands-on assistance, training, cueing, and 
     safety monitoring, including access to backup systems, with--
       (i) activities of daily living;
       (ii) instrumental activities of daily living;
       (iii) health-related tasks; or
       (iv) other functions, tasks, or activities related to an 
     activity or task described in clause (i), (ii), or (iii);
       (B) coordinates, conducts, performs, provides, or funds 
     discharge planning from acute, rehabilitation, and long-term 
     facilities to promote individuals with LTSS disabilities 
     living in the most integrated setting chosen by the 
     individuals;
       (C) issues, conducts, performs, provides, or funds policies 
     and programs to promote self-direction and the provision of 
     consumer-directed services and supports for all populations 
     of individuals with LTSS disabilities served;
       (D) issues, conducts, performs, provides, or funds policies 
     and programs to support informal caregivers who provide 
     services for individuals with LTSS disabilities; and
       (E) ensures that individuals with all types of LTSS 
     disabilities are able to live in the community and lead an 
     independent life, including ensuring that the individuals 
     have maximum control over the services and supports that the 
     individuals receive, choose the setting in which the 
     individuals receive those services and supports, and exercise 
     control and direction over their own lives.
       (3) Public participation.--
       (A) Public entity.--The regulations issued under this 
     section shall require each public entity to carry out an 
     extensive public participation process in preparing the 
     public entity's self-evaluation under paragraph (5) and 
     transition plan under paragraph (10).
       (B) LTSS insurance provider.--The regulations issued under 
     this section shall require each LTSS insurance provider to 
     carry out a public participation process that involves 
     holding a public hearing, providing an

[[Page S2454]]

     opportunity for public comment, and consulting with 
     individuals with LTSS disabilities, in preparing the LTSS 
     insurance provider's self-evaluation under paragraph (5).
       (C) Process.--In carrying out a public participation 
     process under subparagraph (A) or (B), a public entity or 
     LTSS insurance provider shall ensure that the process meets 
     the requirements of subparagraphs (A) and (C) of section 
     1115(d)(2) of the Social Security Act (42 U.S.C. 1315(d)(2)), 
     except that--
       (i) the reference to ``at the State level'' shall be 
     disregarded; and
       (ii) the reference to an application shall be considered to 
     be a reference to the self-evaluation or plan involved.
       (4) Additional services and supports.--The regulations 
     issued under this section shall establish circumstances under 
     which a public entity shall provide community-based long-term 
     services and supports under this section beyond the level of 
     community-based long-term services and supports which would 
     otherwise be required under this subsection.
       (5) Self-evaluation.--
       (A) In general.--The regulations issued under this section 
     shall require each public entity and each LTSS insurance 
     provider, not later than 30 months after the date of 
     enactment of this Act, to evaluate current services, 
     policies, and practices, and the effects thereof, that do not 
     or may not meet the requirements of this Act and, to the 
     extent modification of any such services, policies, and 
     practices is required to meet the requirements of this Act, 
     make the necessary modifications. The self-evaluation shall 
     include--
       (i) collection of baseline information, including the 
     numbers of individuals with LTSS disabilities in various 
     institutional and community-based settings served by the 
     public entity or LTSS insurance provider;
       (ii) a review of community capacity, in communities served 
     by the entity or provider, in providing community-based long-
     term services and supports;
       (iii) identification of improvements needed to ensure that 
     all community-based long-term services and supports provided 
     by the public entity or LTSS insurance provider to 
     individuals with LTSS disabilities are comprehensive, are 
     accessible, are not duplicative of existing (as of the date 
     of the identification) services and supports, meet the needs 
     of persons who are likely to require assistance in order to 
     live, or lead a life, as described in section 4(a), and are 
     high-quality services and supports, which may include 
     identifying system improvements that create an option to 
     self-direct receipt of such services and supports for all 
     populations of such individuals served; and
       (iv) a review of funding sources for community-based long-
     term services and supports and an analysis of how those 
     funding sources could be organized into a fair, coherent 
     system that affords individuals reasonable and timely access 
     to community-based long-term services and supports.
       (B) Public entity.--A public entity, including a LTSS 
     insurance provider that is a public entity, shall--
       (i) include in the self-evaluation described in 
     subparagraph (A)--

       (I) an assessment of the availability of accessible, 
     affordable transportation across the State involved and 
     whether transportation barriers prevent individuals from 
     receiving long-term services and supports in the most 
     integrated setting; and
       (II) an assessment of the availability of integrated 
     employment opportunities in the jurisdiction served by the 
     public entity for individuals with LTSS disabilities; and

       (ii) provide the self-evaluation described in subparagraph 
     (A) to the Attorney General and the Administrator.
       (C) LTSS insurance provider.--A LTSS insurance provider 
     shall keep the self-evaluation described in subparagraph (A) 
     on file, and may be required to produce such self-evaluation 
     in the event of a review, investigation, or action described 
     in section 8.
       (6) Additional requirement for public entities.--The 
     regulations issued under this section shall require a public 
     entity, in conjunction with the housing agencies serving the 
     jurisdiction served by the public entity, to review and 
     improve community capacity, in all communities throughout the 
     entirety of that jurisdiction, in providing affordable, 
     accessible, and integrated housing, including an evaluation 
     of available units, unmet need, and other identifiable 
     barriers to the provision of that housing. In carrying out 
     that improvement, the public entity, in conjunction with such 
     housing agencies, shall--
       (A) ensure, and assure the Administrator and the Attorney 
     General that there is, sufficient availability of affordable, 
     accessible, and integrated housing in a setting that is not a 
     disability-specific residential setting or a setting where 
     services are tied to tenancy, in order to provide individuals 
     with LTSS disabilities a meaningful choice in their housing;
       (B) in order to address the need for affordable, 
     accessible, and integrated housing--
       (i) in the case of such a housing agency, establish 
     relationships with State and local housing authorities; and
       (ii) in the case of the public entity, establish 
     relationships with State and local housing agencies, 
     including housing authorities;
       (C) establish, where needed, necessary preferences and set-
     asides in housing programs for individuals with LTSS 
     disabilities who are transitioning from or avoiding 
     institutional placement;
       (D) establish a process to fund necessary home 
     modifications so that individuals with LTSS disabilities can 
     live independently; and
       (E) ensure, and assure the Administrator and the Attorney 
     General, that funds and programs implemented or overseen by 
     the public entity or in the public entity's jurisdiction are 
     targeted toward affordable, accessible, integrated housing 
     for individuals with an LTSS disability who have the lowest 
     income levels in the jurisdiction as a priority over any 
     other development until capacity barriers for such housing 
     are removed or unmet needs for such housing have been met.
       (7) Designation of responsible employee.--The regulations 
     issued under this section shall require each public entity 
     and LTSS insurance provider to designate at least one 
     employee to coordinate the entity's or provider's efforts to 
     comply with and carry out the entity or provider's 
     responsibilities under this Act, including the investigation 
     of any complaint communicated to the entity or provider that 
     alleges a violation of this Act. Each public entity and LTSS 
     insurance provider shall make available to all interested 
     individuals the name, office address, and telephone number of 
     the employee designated pursuant to this paragraph.
       (8) Grievance procedures.--The regulations issued under 
     this section shall require public entities and LTSS insurance 
     providers to adopt and publish grievance procedures providing 
     for prompt and equitable resolution of complaints alleging a 
     violation of this Act.
       (9) Provision of service by others.--The regulations issued 
     under this section shall require each public entity 
     submitting a self-evaluation under paragraph (5) to identify, 
     as part of the transition plan described in paragraph (10), 
     any other entity that is, or acts as, an agent, 
     subcontractor, or other instrumentality of the public entity 
     with regards to a service, support, policy, or practice 
     described in such plan or self-evaluation.
       (10) Transition plans.--The regulations issued under this 
     section shall require each public entity, not later than 42 
     months after the date of enactment of this Act, to submit to 
     the Administrator, and begin implementing, a transition plan 
     for carrying out this Act that establishes the achievement of 
     the requirements of this Act, as soon as practicable, but in 
     no event later than 12 years after the date of enactment of 
     this Act. The transition plan shall--
       (A) establish measurable objectives to address the barriers 
     to community living identified in the self-evaluation under 
     paragraph (5);
       (B) establish specific annual targets for the transition of 
     individuals with LTSS disabilities, and shifts in funding, 
     from institutional settings to integrated community-based 
     services and supports, and related programs; and
       (C) describe the manner in which the public entity has 
     obtained or plans to obtain necessary funding and resources 
     needed for implementation of the plan (regardless of whether 
     the entity began carrying out the objectives of this Act 
     prior to the date of enactment of this Act).
       (11) Annual reporting.--
       (A) In general.--The regulations issued under this section 
     shall establish annual reporting requirements for each public 
     entity covered by this section.
       (B) Progress on objectives and targets.--The regulations 
     issued under this section shall require each public entity 
     that has submitted a transition plan to submit to the 
     Administrator an annual report on the progress the public 
     entity has made during the previous year in meeting the 
     measurable objectives and specific annual targets described 
     in subparagraphs (A) and (B) of paragraph (10).
       (12) Other provisions.--The regulations issued under this 
     section shall include such other provisions and requirements 
     as the Attorney General and the Secretary of Health and Human 
     Services determine are necessary to carry out the objectives 
     of this Act.
       (c) Review of Transition Plans.--
       (1) General rule.--The Administrator shall review a 
     transition plan submitted in accordance with subsection 
     (b)(10) for the purpose of determining whether such plan 
     meets the requirements of this Act, including the regulations 
     issued under this section.
       (2) Disapproval.--If the Administrator determines that a 
     transition plan reviewed under this subsection fails to meet 
     the requirements of this Act, the Administrator shall 
     disapprove the transition plan and notify the public entity 
     that submitted the transition plan of, and the reasons for, 
     such disapproval.
       (3) Modification of disapproved plan.--Not later than 90 
     days after the date of disapproval of a transition plan under 
     this subsection, the public entity that submitted the 
     transition plan shall modify the transition plan to meet the 
     requirements of this section and shall submit to the 
     Administrator, and commence implementation of, such modified 
     transition plan.
       (4) Incentives.--
       (A) Determination.--For 10 years after the issuance of the 
     regulations described in subsection (a), the Secretary of 
     Health and Human Services shall annually determine whether 
     each State, or each other public entity in the State, is 
     complying with the transition plan or modified transition 
     plan the State or other public entity submitted, and obtained 
     approval for, under this section. Notwithstanding any other 
     provision of law,

[[Page S2455]]

     if the Secretary of Health and Human Services determines 
     under this subparagraph that the State or other public entity 
     is complying with the corresponding transition plan, the 
     Secretary shall make the increase described in subparagraph 
     (B).
       (B) Increase in fmap.--On making the determination 
     described in subparagraph (A) for a public entity (including 
     a State), the Secretary of Health and Human Services shall, 
     as described in subparagraph (C), increase by 5 percentage 
     points the FMAP for the State in which the public entity is 
     located for amounts expended by the State for medical 
     assistance consisting of home and community-based services 
     furnished under the State Medicaid plan under title XIX of 
     the Social Security Act (42 U.S.C. 1396 et seq.) or a waiver 
     of such plan--
       (i) that--

       (I) are identified by a public entity or LTSS insurance 
     provider under subsection(b)(5)(A)(iii);
       (II) resulted from shifts in funding identified by a public 
     entity under subsection (b)(10)(B); or
       (III) are environmental modifications to achieve the 
     affordable, accessible, integrated housing identified by a 
     public entity under subsection (b)(6)(E); and

       (ii) are described by the State in a request to the 
     Secretary of Health and Human Services for the increase.
       (C) Period of increase.--The Secretary of Health and Human 
     Services shall increase the FMAP described in subparagraph 
     (B)--
       (i) beginning with the first quarter that begins after the 
     date of the determination; and
       (ii) ending with the quarter in which the next annual 
     determination under subparagraph (A) occurs.
       (D) Definitions.--In this paragraph:
       (i) FMAP.--The term ``FMAP'' means the Federal medical 
     assistance percentage for a State determined under section 
     1905(b) of the Social Security Act (42 U.S.C. 1396d(b)) 
     without regard to any increases in that percentage applicable 
     under other subsections of that section or any other 
     provision of law, including this section.
       (ii) Home and community-based services defined.--The term 
     ``home and community-based services'' means any of the 
     following services provided under a State Medicaid plan under 
     title XIX of the Social Security Act (42 U.S.C. 1396 et seq.) 
     or a waiver of such plan:

       (I) Home and community-based services provided under 
     subsection (c), (d), or (i) of section 1915 of the Social 
     Security Act (42 U.S.C. 1396n).
       (II) Home health care services.
       (III) Personal care services.
       (IV) Services described in section 1905(a)(26) of the 
     Social Security Act (42 U.S.C. 1396d(a)(26)) (relating to 
     PACE program services).
       (V) Self-directed personal assistance services provided in 
     accordance with section 1915(j) of the Social Security Act 
     (42 U.S.C. 1396n(j)).
       (VI) Community-based attendant services and supports 
     provided in accordance with section 1915(k) of the Social 
     Security Act (42 U.S.C. 1396n(k)).
       (VII) Rehabilitative services, within the meaning of 
     section 1905(a)(13) of the Social Security Act (42 U.S.C. 
     1396d(a)(13)).

       (d) Rule of Construction.--Nothing in subsection (b)(10) or 
     (c) or any other provision of this Act shall be construed to 
     modify the requirements of any other Federal law, relating to 
     integration of individuals with disabilities into the 
     community and enabling those individuals to live in the most 
     integrated setting.

     SEC. 7. EXEMPTIONS FOR RELIGIOUS ORGANIZATIONS.

       This Act shall not prohibit a religious organization, 
     association, or society from giving preference in providing 
     community-based long-term services and supports to 
     individuals of a particular religion connected with the 
     beliefs of such organization, association, or society.

     SEC. 8. ENFORCEMENT.

       (a) Civil Action.--
       (1) In general.--A civil action for preventive relief, 
     including an application for a permanent or temporary 
     injunction, restraining order, or other order, may be 
     instituted by an individual described in paragraph (2) in an 
     appropriate Federal district court.
       (2) Aggrieved individual.--
       (A) In general.--The remedies and procedures set forth in 
     this section are the remedies and procedures this Act 
     provides to any individual who is being subjected to a 
     violation of this Act, or who has reasonable grounds for 
     believing that such individual is about to be subjected to 
     such a violation.
       (B) Standing.--An individual with a disability shall have 
     standing to institute a civil action under this subsection if 
     the individual makes a prima facie showing that the 
     individual--
       (i) is an individual with an LTSS disability; and
       (ii) is being subjected to, or about to be subjected to, 
     such a violation (including a violation of section 4(b)(11)).
       (3) Appointment of attorney; no fees, costs, or security.--
     Upon application by the complainant described in paragraph 
     (2) and in such circumstances as the court may determine to 
     be just, the court may appoint an attorney for the 
     complainant and may authorize the commencement of such civil 
     action without the payment of fees, costs, or security.
       (4) Futile gesture not required.--Nothing in this section 
     shall require an individual with an LTSS disability to engage 
     in a futile gesture if such person has actual notice that a 
     public entity or LTSS insurance provider does not intend to 
     comply with the provisions of this Act.
       (b) Damages and Injunctive Relief.--If the court finds that 
     a violation of this Act has occurred or is about to occur, 
     the court may award to the complainant--
       (1) actual and punitive damages;
       (2) immediate injunctive relief to prevent 
     institutionalization;
       (3) as the court determines to be appropriate, any 
     permanent or temporary injunction (including an order to 
     immediately provide or maintain community-based long-term 
     services or supports for an individual to prevent 
     institutionalization or further institutionalization), 
     temporary restraining order, or other order (including an 
     order enjoining the defendant from engaging in a practice 
     that violates this Act or ordering such affirmative action as 
     may be appropriate); and
       (4) in an appropriate case, injunctive relief to require 
     the modification of a policy, practice, or procedure, or the 
     provision of an alternative method of providing LTSS, to the 
     extent required by this Act.
       (c) Attorney's Fees; Liability of United States for 
     Costs.--In any action commenced pursuant to this Act, the 
     court, in its discretion, may allow the party bringing a 
     claim or counterclaim under this Act, other than the United 
     States, a reasonable attorney's fee as part of the costs, and 
     the United States shall be liable for costs to the same 
     extent as a private person.
       (d) Enforcement by Attorney General.--
       (1) Denial of rights.--
       (A) Duty to investigate.--The Attorney General shall 
     investigate alleged violations of this Act, and shall 
     undertake periodic reviews of the compliance of public 
     entities and LTSS insurance providers under this Act.
       (B) Potential violation.--The Attorney General may commence 
     a civil action in any appropriate Federal district court if 
     the Attorney General has reasonable cause to believe that--
       (i) any public entity or LTSS insurance provider, including 
     a group of public entities or LTSS insurance providers, is 
     engaged in a pattern or practice of violations of this Act; 
     or
       (ii) any individual, including a group, has been subjected 
     to a violation of this Act and the violation raises an issue 
     of general public importance.
       (2) Authority of court.--In a civil action under paragraph 
     (1)(B), the court--
       (A) may grant any equitable relief that such court 
     considers to be appropriate, including, to the extent 
     required by this Act--
       (i) granting temporary, preliminary, or permanent relief; 
     and
       (ii) requiring the modification of a policy, practice, or 
     procedure, or the provision of an alternative method of 
     providing LTSS;
       (B) may award such other relief as the court considers to 
     be appropriate, including damages to individuals described in 
     subsection (a)(2), when requested by the Attorney General; 
     and
       (C) may, to vindicate the public interest, assess a civil 
     penalty against the public entity or LTSS insurance provider 
     in an amount--
       (i) not exceeding $100,000 for a first violation; and
       (ii) not exceeding $200,000 for any subsequent violation.
       (3) Single violation.--For purposes of paragraph (2)(C), in 
     determining whether a first or subsequent violation has 
     occurred, a determination in a single action, by judgment or 
     settlement, that the public entity or LTSS insurance provider 
     has engaged in more than one violation of this Act shall be 
     counted as a single violation.

     SEC. 9. CONSTRUCTION.

       For purposes of construing this Act--
       (1) section 4(b)(11) shall be construed in a manner that 
     takes into account its similarities with section 
     302(b)(2)(A)(ii) of the Americans with Disabilities Act of 
     1990 (42 U.S.C. 12182(b)(2)(A)(ii));
       (2) the first sentence of section 6(b)(5)(A) shall be 
     construed in a manner that takes into account its 
     similarities with section 35.105(a) of title 28, Code of 
     Federal Regulations (as in effect on the day before the date 
     of enactment of this Act);
       (3) section 7 shall be construed in a manner that takes 
     into account its similarities with section 807(a) of the 
     Civil Rights Act of 1968 (42 U.S.C. 3607(a));
       (4) section 8(a)(2) shall be construed in a manner that 
     takes into account its similarities with section 308(a)(1) of 
     the Americans with Disabilities Act of 1990 (42 U.S.C. 
     12188(a)(1)); and
       (5) section 8(d)(1)(B) shall be construed in a manner that 
     takes into account its similarities with section 308(b)(1)(B) 
     of the Americans with Disabilities Act of 1990 (42 U.S.C. 
     12188(b)(1)(B)).
                                 ______
                                 
      By Mr. DAINES:
  S. 894. A bill to amend title 40, United States Code, to provide 
requirements for the disposal of surplus Federal property relating to 
review of bidders and post-sale responsibilities; to the Committee on 
Environment and Public Works.

[[Page S2456]]

  


                                 S. 894

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

     SECTION 1. MODIFICATIONS RELATING TO METHOD OF DISPOSITION OF 
                   SURPLUS FEDERAL PROPERTY AND SUBSEQUENT 
                   RESPONSIBILITIES.

       Section 543 of title 40, United States Code, is amended--
       (1) in the first sentence, by striking ``An executive'' and 
     inserting the following:
       ``(a) In General.--The Administrator of General Services or 
     an executive'';
       (2) in the second sentence--
       (A) by striking ``it considers''; and
       (B) by striking ``The agency'' and inserting the following:
       ``(b) Disposal Actions.--
       ``(1) Documentation.--The Administrator of General Services 
     or an executive agency''; and
       (3) in subsection (b) (as designated by paragraph (2)(B)), 
     by adding at the end the following:
       ``(2) Observations of bidder.--For purposes of ensuring 
     settlement of a loan used for the purchase by a member of the 
     public of any Federal real property with a significant health 
     or safety concern sold by the General Services Administration 
     under this chapter, the Administrator of General Services 
     shall--
       ``(A) during the course of the ordinary bidding process, 
     identify, to the best of the ability of the Administrator of 
     General Services, whether any obvious and significant 
     indication is present that the purchaser is not capable of--
       ``(i) settling the loan obligation; or
       ``(ii) removing any health or safety conditions; and
       ``(B) if such an obvious and significant indication is 
     identified--
       ``(i) document the indication; and
       ``(ii) disallow sale of the Federal property to the 
     prospective purchaser.
       ``(3) Asbestos.--
       ``(A) Definition of asbestos-affected property.--In this 
     paragraph, the term `asbestos-affected property' means any 
     Federal property that--
       ``(i) is sold by the General Services Administration under 
     this chapter after April 30, 2013; and
       ``(ii) contains--

       ``(I) friable asbestos; and
       ``(II) a significant overall quantity of asbestos, such 
     that damage inflicted on the Federal property by a natural 
     disaster would cause significant damage to the public due to 
     the quantity of asbestos.

       ``(B) Responsibility.--In the event that an immediate or 
     subsequent purchaser of an asbestos-affected property is a 
     debtor (as defined in section 101 of title 11, United States 
     Code), and transfers any portion of the asbestos-affected 
     property with significant quantities of unabated asbestos to 
     a unit of State or local government, on request by that unit 
     of government, the Administrator of General Services shall 
     coordinate with other Federal agencies to identify funding 
     resources for the purpose of asbestos abatement if that unit 
     of government submits the request to the Administrator of 
     General Services not later than 20 years after the date of 
     the initial sale of the real property by the General Services 
     Administration.''.
                                 ______
                                 
      By Mrs. FEINSTEIN (for herself, Mr. Leahy, Mr. Brown, Mr. Cardin, 
        Mr. Durbin, Mr. Franken, Ms. Klobuchar, Mr. Murphy, Mrs. 
        Murray, Mr. Sanders, Mr. Udall, Mr. Whitehouse, Mr. Markey, and 
        Mr. Merkley):
  S. 897. A bill to protect civilians from cluster munitions, and for 
other purposes; to the Committee on Foreign Relations.
  Mrs. FEINSTEIN. Mr. President, I rise today with my colleagues 
Senators Leahy, Brown, Cardin, Durbin, Franken, Klobuchar, Murphy, 
Murray, Markey, Merkley, Sanders, Udall, and Whitehouse to introduce 
the Cluster Munitions Civilian Protection Act of 2017.
  First and foremost, the legislation would limit the use of cluster 
munitions by the U.S. Armed Forces. In June 2008, then-Secretary of 
Defense Robert Gates signed a memo stating that after 2018 the United 
States will not use cluster munitions with a greater than 1 percent 
unexploded ordnance rate. The Cluster Munitions Civilian Protection Act 
would codify the Gates policy by immediately prohibiting the use of 
cluster munitions with a greater than 1 percent failure rate.
  Second, this bill would make it clear that the export of U.S.-made 
cluster munitions must be contingent upon the receiving country not 
using these weapons inappropriately. Since 2008, the Congress has 
required that U.S.-made cluster munitions can only be used by the 
recipient country against clearly defined military targets and will not 
be used where civilians are known to be present or in areas normally 
inhabited by civilians.
  During the 114th Congress, the Defense Department discovered that 
several export agreements for U.S. cluster munitions--known as letters 
of offer and acceptance--failed to mirror congressional restrictions on 
their use. Specifically, the Pentagon found that letters of offer and 
acceptance with South Korea and Saudi Arabia were either incomplete or 
missing. While the Pentagon is attempting to amend the mistake, it is 
imperative that the Congress make clear that U.S.-made cluster 
munitions must not be used where civilians are known to be present or 
in areas normally inhabited by civilians. As a result, the legislation 
requires export policies and licenses to restrict cluster munition use 
against clearly defined military targets and not in civilian areas.
  Today 119 countries have signed or acceded to the Convention on 
Cluster Munitions. In fact, four of our closest allies--Canada, Great 
Britain, Germany, and France--are states parties, legally bound by all 
of the convention's provisions.
  The convention prohibits the use, production, transfer, and 
stockpiling of cluster munitions. The convention also requires the 
destruction of stockpiled cluster munitions within eight years, 
clearance of cluster munition remnants within 10 years, and assistance 
to victims, including those injured by submunitions.
  I am disappointed that the United States has not signed the 
convention but believe we can move toward doing so. This legislation 
states that it is the sense of Congress that No. 1, the U.S. Government 
should phase out the use of all cluster munitions as soon as possible; 
No. 2, any alternatives that the United States develops to replace 
cluster munitions should be compliant with the Convention on Cluster 
Munitions; and No. 3, the United States should accede to the convention 
as soon as possible.
  The United States has not widely used cluster munitions since the 
first weeks of the 2003 Iraq war. Unfortunately, cluster munitions have 
been used by others around the world with devastating effect on 
civilians in the past year.
  According to the Cluster Munition Monitor, since 2012, Syrian 
government forces have used at least 13 different types of cluster 
munitions in 360 recorded attacks. Additionally, the United States and 
the United Kingdom have publicly accused Russia of using these weapons 
in Syria, including against the moderate opposition.
  In Yemen, the Saudi-backed coalition has employed cluster munitions 
against the Houthis. Human Rights Watch and Amnesty International have 
documented at least 19 instances of cluster munitions use in Yemen, 
including with U.S.-made weapons. The U.S. Defense Department has 
acknowledged that U.S.-made weapons were employed in Yemen, though the 
Pentagon has said their use didn't violate export restrictions.
  Finally, there is evidence that cluster munitions were also used in 
the Nagorno-Karabakh region and by Kenya in Somalia.
  According to the Cluster Munitions Monitor, over the past 50 years, 
there have been 20,300 documented cluster munitions deaths in 33 
nations. The estimated number of total cluster munitions casualties, 
however, is an astonishing 55,000 people.
  While cluster munitions are intended for military targets, in 
actuality civilians accounted for 97 percent of cluster munition 
casualties in 2015.
  Worldwide casualties caused by cluster munitions demonstrate that 
they are indiscriminate weapons. While U.S.-made cluster munitions 
reduce the likelihood of civilian casualties when they are used 
correctly, U.S. ratification of the Convention on Cluster Munitions 
would help move the world toward a global ban.
  This legislation moves the United States toward accession by 
codifying the Gates policy and encouraging the Pentagon to develop 
alternatives to cluster munitions that are compliant with the 
convention.
  Mr. President, the Congress cannot compel the administration to sign 
the Convention on Cluster Munitions. But, we can surely take steps to 
abide by its spirit. Passing the ``Cluster Munitions Civilian 
Protection Act'' would do exactly that.
  I urge my colleagues to support this bill.

[[Page S2457]]

  

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