HOME AND COMMUNITY-BASED SERVICES FOR THE ELDERLY.

SEC. 4102. HOME AND COMMUNITY-BASED SERVICES FOR THE ELDERLY. (a) In General.— (1) Section 1915 of the Social Security Act (42 U.S.C. 1396n) is amended— (A) by transferring subsection (d) to the end of such section and redesignating it as subsection (h), and (B) by inserting after subsection (c) the following new subsection: “(d) (1) Subject to paragraph (2), the Secretary shall grant a waiver to provide that a State plan approved under this title shall include as ‘medical assistance’ under such plan payment for part or all of the cost of home or community-based services (other than room and board) which are provided pursuant to a written plan of care to individuals 65 years of age or older with respect to whom there has been a determination that but for the provision of such services the individuals would be likely to require the level of care provided in a skilled nursing facility or intermediate care facility the cost of which could be reimbursed under the State plan. “(2) A waiver shall not be granted under this subsection unless the State provides assurances satisfactory to the Secretary that— “(A) necessary safeguards (including adequate standards for provider participation) have been taken to protect the health and welfare of individuals provided services under the waiver and to assure financial accountability for funds expended with respect to such services; “(B) with respect to individuals 65 years of age or older who— “(i) are entitled to medical assistance for skilled nursing or intermediate care facility services under the State plan, “(ii) may require such services, and “(iii) may be eligible for such home or community-based services under such waiver, the State will provide for an evaluation of the need for such skilled nursing facility or intermediate care facility services; and “(C) such individuals who are determined to be likely to require the level of care provided in a skilled nursing facility or intermediate care facility are informed of the feasible alter-101 STAT. 1330–144natives to the provision of skilled nursing facility or intermediate care facility services, which such individuals may choose if available under the waiver. Each State with a waiver under this subsection shall provide to the Secretary annually, consistent with a reasonable data collection plan designed by the Secretary, information on the impact of the waiver granted under this subsection on the type and amount of medical assistance provided under the State plan and on the health and welfare of recipients. “(3) A waiver granted under this subsection may include a waiver of the requirements of section 1902(a)(1) (relating to statewideness), section 1902(a)(10)(B) (relating to comparability), and section 1902(a)(10)(C)(i)(III) (relating to income and resource rules applicable in the community). Subject to a termination by the State (with notice to the Secretary) at any time, a waiver under this subsection shall be for an initial term of 3 years and, upon the request of a State, shall be extended for additional 5-year periods unless the Secretary determines that for the previous waiver period the assurances provided under paragraph (2) have not been met. A waiver may provide, with respect to post-eligibility treatment of income of all individuals receiving services under the waiver, that the maximum amount of the individual’s income which may be disregarded for any month is equal to the amount that may be allowed for that purpose under a waiver under subsection (c). “(4) A waiver under this subsection may, consistent with paragraph (2), provide medical assistance to individuals for case management services, homemaker/home health aide services and personal care services, adult day health services, respite care, and other medical and social services that can contribute to the health and well-being of individuals and their ability to reside in a community-based care setting. “(5) (A) In the case of a State having a waiver approved under this subsection, notwithstanding any other provision of section 1903 to the contrary, the total amount expended by the State for medical assistance with respect to skilled nursing facility services, intermediate care facility services, and home and community-based services under the State plan for individuals 65 years of age or older during a waiver year under this subsection may not exceed the projected amount determined under subparagraph (B). “(B) For purposes of subparagraph (A), the projected amount under this subparagraph is the sum of the following: “(i) The aggregate amount of the State’s medical assistance under this title for skilled nursing facility services and intermediate care facility services furnished to individuals who have attained the age of 65 for the base year increased by a percentage which is equal to the lesser of 7 percent times the number of years beginning after the base year and ending before the waiver year involved or the sum of— “(I) the percentage increase (based on an appropriate market-basket index representing the costs of elements of such services) between the base year and the waiver year involved, plus “(II) the percentage increase between the base year and the waiver year involved in the number of residents in the State who have attained the age of 65, plus “(III) 2 percent for each year beginning after the base year and ending before the waiver year. 101 STAT. 1330–145 “(ii) The aggregate amount of the State’s medical assistance under this title for home and community-based services for individuals who have attained the age of 65 for the base year increased by a percentage which is equal to the lesser of 7 percent times the number of years beginning after the base year and ending before the waiver year involved or the sum of— “(I) the percentage increase (based on an appropriate market-basket index representing the costs of elements of such services) between the base year and the waiver year involved, plus “(II) the percentage increase between the base year and the waiver year involved in the number of residents in the State who have attained the age of 65, plus “(III) 2 percent for each year beginning after the base year and ending before the waiver year, “(iii) The Secretary shall develop and promulgate by regulation (by not later than October 1, 1989)— “(I) a method, based on an index of appropriately weighted indicators of changes in the wages and prices of the mix of goods and services which comprise both skilled nursing facility services and intermediate care facility services (regardless of the source of payment for such services), for projecting the percentage increase for purposes of clause (i)(I); “(II) a method, based on an index of appropriately weighted indicators of changes in the wages and prices of the mix of goods and services which comprise home and community-based services (regardless of the source of payment for such services), for projecting the percentage increase for purposes of clause (ii)(I); and “(III) a method for projecting, on a State specific basis, the percentage increase in the number of residents in each State who are over 75 years of age for any period. Effective on and after the date the Secretary promulgates the regulation under clause (iii), any reference in this subparagraph to the ‘lesser of 7 percent’ shall be deemed to be a reference to the ‘greater of 7 percent’. “(C) In this paragraph: “(i) The term ‘home and community-based services’ includes services described in sections 1905(a)(7) and 1905(a)(8), services described in subsection (c)(4)(B), services described in paragraph (4)(B), personal care services, and services furnished pursuant to a waiver under subsection (c). “(ii) (I) Subject to subclause (II), the term ‘base year’ means the most recent year (ending before the date of the enactment of this subsection) for which actual final expenditures under this title have been reported to, and accepted by, the Secretary. “(II) For purposes of subparagraph (C), in the case of a State that does not report expenditures on the basis of the age categories described in such subparagraph for a year ending before the date of the enactment of this subsection, the term ‘base year’ means fiscal year 1989. “(iii) The term ‘intermediate care facility services’ does not include services furnished in an institution certified in accordance with section 1905(d). “(6) (A) A determination by the Secretary to deny a request for a waiver (or extension of waiver) under this subsection shall be subject to review to the extent provided under section 1116(b). 101 STAT. 1330–146 “(B) Notwithstanding any other provision of this Act, if the Secretary denies a request of the State for an extension of a waiver under this subsection, any waiver under this subsection in effect on the date such request is made shall remain in effect for a period of not less than 90 days after the date on which the Secretary denies such request (or, if the State seeks review of such determination in accordance with subparagraph (A), the date on which a final determination is made with respect to such review).”. (2) The amendments made by paragraph (1) shall become effective on January 1, 1988. (b) Conforming Amendments.— (1) Section 1902(a)(10)(A)(ii)(VI) of such Act (42 U.S.C. 1396a(a)(10)(A)(ii)(VI)) is amended by striking “section 1915(c)” each place it appears and inserting “subsection (c) or (d) of section 1915”. (2) Section 1915(h) of such Act, as redesignated by subsection (a), is amended by striking “(c)” and inserting in lieu thereof “(c) or (d)”. (c) Extension of Waiver.— In the case of a State which, as of December 1, 1987, has a waiver approved with respect to elderly individuals under section 1915(c) of the Social Security Act, which waiver is scheduled to expire before July 1, 1988, if the State notifies the Secretary of Health and Human Services of the State’s intention to file an application for a waiver under section 1915(d) of such Act (as amended by subsection (a) of this section), the Secretary shall extend approval of the State’s waiver, under section 1915(c) of such Act, on the same terms and conditions through September 30, 1988.