[Congressional Bills 116th Congress]
[From the U.S. Government Publishing Office]
[S. 117 Introduced in Senate (IS)]
<DOC>
116th CONGRESS
1st Session
S. 117
To prohibit discrimination against individuals with disabilities who
need long-term services and supports, and for other purposes.
_______________________________________________________________________
IN THE SENATE OF THE UNITED STATES
January 15, 2019
Mr. Schumer (for himself, Mr. Gardner, Ms. Baldwin, Mr. Bennet, Mr.
Blumenthal, Ms. Cantwell, Mr. Casey, Mr. Coons, Ms. Duckworth, Mrs.
Gillibrand, Ms. Harris, Ms. Hassan, Mr. Jones, Mr. Leahy, Mr. Markey,
Mrs. Murray, Mr. Van Hollen, Ms. Warren, Mr. Tester, Mr. Sanders, Mr.
Durbin, Mr. Booker, Mr. Merkley, and Ms. Smith) introduced the
following bill; which was read twice and referred to the Committee on
Health, Education, Labor, and Pensions
_______________________________________________________________________
A BILL
To prohibit discrimination against individuals with disabilities who
need long-term services and supports, and for other purposes.
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
2019''.
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;
(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 one 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, 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;
(2) shall be construed to affect the scope of obligations
imposed by any other provision of law; or
(3) shall be construed to prohibit a public entity or LTSS
insurance provider from using managed care techniques, as long
as the use of such techniques does not have the effect of
discriminating against an individual in the provision of
community-based long-term services and supports, as prohibited
by this Act.
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 grants for
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 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 an
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.--An 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;
(C) describe specific efforts to support
individuals with LTSS disabilities to avoid unwanted
institutionalization through the provision of LTSS; and
(D) 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, targets, and efforts.--
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, specific
annual targets, and specific efforts described in
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, 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 (but shall in
no event increase the FMAP above 100 percent) 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) Additional condition for payment.--
(i) State report.--As a condition for the
receipt of a payment based on an increase
described in subparagraph (B) with respect to
amounts to be expended by the State for medical
assistance consisting of home and community-
based services described in subparagraph (B),
the State shall report to the Secretary, for
the reporting year, the amount of funds
expended by the State for home and community-
based services (as defined in subparagraph
(E)(ii)) in that year. The State shall make the
report in a format developed or approved by the
Secretary.
(ii) Reduction in payment if failure to
maintain effort.--If the amount reported under
clause (i) by a State with respect to a
reporting year is less than the amount reported
under clause (i) with respect to the previous
fiscal year or fiscal year 2019, whichever was
the greater reported amount, the Secretary
shall provide for a reduction in the payment to
the State based on the increase.
(E) 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)).
(iii) Reporting year.--The term ``reporting
year'' means the most recent fiscal year
preceding the date of a report under
subparagraph (D)(i).
(d) Rule of Construction.--Nothing in subsection (b)(10) or (c) or
any other provision of this Act shall be construed to limit the rights,
protections, or 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)).
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