Text: H.R.3933 — 101st Congress (1989-1990)All Information (Except Text)

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HR 3933 IH
101st CONGRESS
2d Session
 H. R. 3933
To amend title XIX of the Social Security Act to provide States the option of
providing quality community care to the elderly under their medicaid programs.
IN THE HOUSE OF REPRESENTATIVES
February 1, 1990
Mr. WYDEN (for himself, Mr. WAXMAN, Mr. ROYBAL, Mr. RINALDO, Mr. SCHEUER,
Mr. WALGREN, Mr. SIKORSKI, Mr. BATES, Mr. BRUCE, Mrs. COLLINS, Mr. TOWNS,
Mr. MARKEY, Mr. ECKART, Mr. RICHARDSON, Mr. BOUCHER, Mr. SCHUMER, Mrs. BOXER,
Mr. DURBIN, Mr. ESPY, Mr. DWYER of New Jersey, Mr. BERMAN, Ms. KAPTUR,
Mr. FAUNTROY, Mr. LEVINE of California, Mr. MCDERMOTT, Mr. KOSTMAYER,
Mr. MRAZEK, Ms. PELOSI, Mr. FOGLIETTA, Mr. MORRISON of Connecticut,
Mr. HARRIS, Mr. LEVIN of Michigan, Mr. HUGHES, Mr. HERTEL, Mrs. SAIKI,
Mr. RANGEL, Mr. EDWARDS of California, Mr. FORD of Tennessee, Mr. FAZIO,
Mr. BROWN of California, Mr. PALLONE, Mr. ROWLAND of Connecticut, Mr. OWENS
of New York, Mr. PAYNE of New Jersey, Mr. CLEMENT, Mr. MOLLOHAN, Mr. ENGEL,
Mr. MATSUI, Mr. STAGGERS, Mr. WOLPE, Mr. GEJDENSON, Mr. DE LUGO, Mr. CROCKETT,
Mr. ACKERMAN, Mr. HAWKINS, Mr. HYDE, Mr. FRANK, Mr. MILLER of California,
Ms. SCHNEIDER, Mr. WHEAT, Mr. JOHNSTON of Florida, Mr. WILLIAMS, and Mr. WALSH)
introduced the following bill; which was referred to the Committee on Energy
and Commerce
A BILL
To amend title XIX of the Social Security Act to provide States the option of
providing quality community care to the elderly under their medicaid programs.
  Be it enacted by the Senate and House of Representatives of the United
  States of America in Congress assembled,
TITLE I--SHORT TITLE
SECTION 101. SHORT TITLE.
  This Act may be cited as the `Medicaid Frail Elderly Community Care
  Amendments of 1990'.
TITLE II--FRAIL ELDERLY COMMUNITY CARE AMENDMENTS
SEC. 201. COMMUNITY CARE AS OPTIONAL, STATEWIDE SERVICE.
  (a) PROVISION AS OPTIONAL, STATEWIDE SERVICE- Section 1905(a) of the
  Social Security Act (42 U.S.C. 1396d(a)), as amended by section 6405(a)
  of the Omnibus Budget Reconciliation Act of 1989, is amended--
  (1) by striking `and' at the end of paragraph (21),
  (2) by redesignating paragraph (22) as paragraph (23), and
  (3) by inserting after paragraph (21) the following new paragraph:
  `(22) community care (as defined in section 1927(a)) for functionally
  disabled elderly individuals; and'.
  (b) COMMUNITY CARE FOR FUNCTIONALLY DISABLED ELDERLY INDIVIDUALS- Title
  XIX of such Act, as amended by section 6402(b) of the Omnibus Budget
  Reconciliation Act of 1989, is amended--
  (1) by redesignating section 1927 as section 1928, and
  (2) by inserting after section 1926 the following new section:
`COMMUNITY CARE FOR FUNCTIONALLY DISABLED ELDERLY INDIVIDUALS
  `SEC. 1927. (a) COMMUNITY CARE DEFINED- In this title, the term `community
  care' means one or more of the following services furnished to an individual
  who has been determined, after an assessment under subsection (c), to
  be a functionally disabled elderly individual, and in accordance with an
  individual community care plan (established and periodically reviewed and
  revised by a qualified community care case manager under subsection (d)):
  `(1) Homemaker/home health aide services.
  `(2) Chore services.
  `(3) Personal care services.
  `(4) Nursing care services (other than continuous 24-hour nursing care
  services) provided by, or under the supervision of, a registered nurse.
  `(5) Respite care.
  `(6) Training for family members in managing the individual.
  `(7) Adult day health services.
  `(8) In the case of an individual with chronic mental illness, day treatment
  or other partial hospitalization, psychosocial rehabilitation services,
  and clinic services (whether or not furnished in a facility).
  `(9) Such other home and community-based services (other than room and
  board) as the Secretary may approve.
With respect to services described in paragraphs (1) through (4), the services
must be provided in a place of residence used as the individual's home.
  `(b) FUNCTIONALLY DISABLED ELDERLY INDIVIDUAL DEFINED-
  `(1) IN GENERAL- In this title, the term `functionally disabled elderly
  individual' means an individual who--
  `(A) is 65 years of age or older;
  `(B) is determined to be a functionally disabled individual under subsection
  (c); and
  `(C)(i) subject to section 1902(f) (as applied consistent with section
  1902(r)(2)), is described in section 1902(a)(10)(A)(i), or
  `(ii) at the option of the State, is described in section 1902(a)(10)(C).
  `(2) TREATMENT OF CERTAIN INDIVIDUALS COVERED UNDER CERTAIN WAIVERS-
  `(A) HOME AND COMMUNITY-BASED WAIVERS- In the case of a State which--
  `(i) at the time of its election to provide coverage for community care
  under this section has a waiver approved under section 1915(c) or 1915(d)
  with respect to individuals 65 years of age or older, and
  `(ii) subsequently discontinues such waiver,
an individual who was eligible for benefits under the waiver as of the
date of its discontinuance and who would, but for income or resources, be
eligible for medical assistance for community care under the plan shall,
notwithstanding any other provision of this title, be deemed a functionally
disabled elderly individual for so long as the individual would have remained
eligible for medical assistance under such waiver.
  `(B) OTHER WAIVERS- In the case of a State which, as of December 31,
  1989, had in effect a waiver under section 1115 that provides under the
  State plan under this title for personal care services for functionally
  disabled individuals, the term `functionally disabled elderly individual'
  may include, at the option of the State, an individual who--
  `(i) is 65 years of age or older or is disabled (as determined under the
  supplemental security income program under title XVI);
  `(ii) is determined to meet the test of functional disability applied
  under the waiver as of such date; and
  `(iii) meets the resource requirement and income standard that apply in
  the State to individuals described in section 1902(a)(10)(A)(ii)(V).
  `(3) USE OF PROJECTED INCOME- In applying section 1903(f)(1) in determining
  the eligibility of an individual (described in section 1902(a)(10)(C))
  for medical assistance for community care, a State may, at its option,
  provide for the determination of the individual's anticipated medical
  expenses (to be deducted from income) over a period of up to 6 months.
  `(c) DETERMINATIONS OF FUNCTIONAL DISABILITY-
  `(1) IN GENERAL- In this section, an individual is `functionally disabled'
  if the individual--
  `(A) is unable to perform without substantial assistance from another
  individual at least 2 of the following 3 activities of daily living:
  toileting, transferring, and eating; or
  `(B) has a primary or secondary diagnosis of Alzheimer's disease and is
  (i) unable to perform without substantial human assistance (including
  verbal reminding or physical cueing) or supervision at least 2 of the
  following 5 activities of daily living: bathing, dressing, toileting,
  transferring, and eating, or (ii) cognitively impaired so as to require
  substantial supervision from another individual because the individual
  engages in inappropriate behaviors that pose serious health or safety
  hazards to himself or herself or others.
  `(2) ASSESSMENTS OF FUNCTIONAL DISABILITY-
  `(A) REQUESTS FOR ASSESSMENTS- If a State has elected to provide community
  care under this section, upon the request of an individual who is 65 years
  of age or older and who meets the requirements of subsection (b)(1)(C)
  (or another person on such individual's behalf), the State shall provide
  for a comprehensive functional assessment under this subparagraph which--
  `(i) is used to determine whether or not the individual is functionally
  disabled,
  `(ii) is based on a uniform minimum data set specified by the Secretary
  under subparagraph (C)(i), and
  `(iii) uses an instrument which has been specified by the State under
  subparagraph (B).
No fee may be charged for such an assessment.
  `(B) SPECIFICATION OF ASSESSMENT INSTRUMENT- The State shall specify the
  instrument to be used in the State in complying with the requirement of
  subparagraph (A)(iii). Such instrument shall be--
  `(i) one of the instruments identified under subparagraph (C)(ii), or
  `(ii) an instrument which the Secretary has approved as being consistent with
  the minimum data set of core elements, common definitions, and utilization
  guidelines specified by the Secretary in subparagraph (C)(i).
  `(C) SPECIFICATION OF ASSESSMENT DATA SET AND INSTRUMENTS- The Secretary
  shall--
  `(i) not later than July 1, 1991--
  `(I) specify a minimum data set of core elements and common definitions
  for use in conducting the assessments required under subparagraph (A), and
  `(II) establish guidelines for use of the data set; and
  `(ii) by not later than July 1, 1991, identify one or more instruments
  which are consistent with the specification made under subparagraph (A)
  and which a State may specify under subparagraph (B) for use in complying
  with the requirements of subparagraph (A).
  `(D) PERIODIC REVIEW- Each individual who qualifies as a functionally
  disabled elderly individual shall have the individual's assessment
  periodically reviewed and revised not less often than once every 12 months.
  `(E) CONDUCT OF ASSESSMENT BY INTERDISCIPLINARY TEAMS-
  `(i) IN GENERAL- An assessment under subparagraph (A) and a review under
  subparagraph (D) must be conducted by an interdisciplinary team designated
  by the State.
  `(ii) DELEGATION- The Secretary shall permit a State to provide for
  assessments and reviews through teams under contracts--
  `(I) with State or local agencies, or
  `(II) with nonprofit or public organizations which do not provide community
  care or nursing facility services and do not have a direct or indirect
  ownership or control interest in, or direct or indirect affiliation or
  relationship with, an entity that provides, community care or nursing
  facility services.
  `(F) CONTENTS OF ASSESSMENT- The interdisciplinary team must--
  `(i) identify in each such assessment or review each client's functional
  disabilities and need for community care (based on social, cognitive,
  and other relevant factors), and
  `(ii) based on such assessment or review, determine whether the individual
  is (or continues to be) functionally disabled.
The results of such an assessment or review shall be used in establishing,
reviewing, and revising the individual's ICCP under subsection (d)(1).
  `(G) APPEAL PROCEDURES- Each State which elects to provide community care
  under this section must have in effect an appeals process for individuals
  adversely affected by determinations under subparagraph (F).
  `(d) INDIVIDUAL COMMUNITY CARE PLAN (ICCP)-
  `(1) INDIVIDUAL COMMUNITY CARE PLAN DEFINED- In this section, the terms
  `individual community care plan' and `ICCP' mean, with respect to a
  functionally disabled elderly individual, a written plan which--
  `(A)(i) is established by a qualified community care case manager in
  face-to-face consultation with (and with notice to) the individual and
  based upon a visit to the individual in the individual's residence and
  the most recent comprehensive functional assessment of such individual
  conducted under subsection (c)(2);
  `(ii) is periodically reviewed and (as appropriate) revised by such a manager
  in face-to-face consultation with (and with notice to) the individual and
  based upon a visit to the individual in the individual's residence and
  the most recent comprehensive functional assessment of such individual
  conducted under subsection (c)(2);
  `(B) reflects, consistent with subparagraph (C), the needs and preferences
  of the individual and, to the extent feasible, allows for and promotes
  the direction and oversight of community care by the individual;
  `(C) specifies, within any amount, duration, and scope limitations imposed
  on community care provided under the State plan, the community care to be
  provided to such individual under the plan;
  `(D) does not include community care for which payment is made by the
  individual or on the individual's behalf; and
  `(E) may specify services (other than those to be provided to the individual
  under the plan) required by such individual.
Nothing in this section shall be construed as authorizing an ICCP or the
State to restrict the specific persons or individuals (who are competent to
provide community care under the State plan) who will provide the community
care described in subparagraph (C).
  `(2) QUALIFIED COMMUNITY CARE CASE MANAGER DEFINED- In this section, the
  term `qualified community care case manager' means a nonprofit or public
  agency or organization which--
  `(A) has experience in establishing, and in periodically reviewing and
  revising, assessments or individual community care plans and in the
  provision of case management services to the elderly;
  `(B) is responsible (i) for assuring that community care covered under
  the State plan and specified in the ICCP is being provided and (ii) for
  visiting each individual receiving such care at the individual's residence
  not less often than once every 90 days;
  `(C) in the case of a non-public organization, does not provide community
  care or nursing facility services and does not have a direct or indirect
  ownership or control interest in, or direct or indirect affiliation or
  relationship with, an entity that provides, community care or nursing
  facility services;
  `(D) has procedures for assuring the quality of case management services
  it provides; and
  `(E) meets such other standards, established by the Secretary, as assure
  that--
  `(i) such a manager is competent to perform case management functions,
  `(ii) individuals whose community care they manage are not at risk of
  financial exploitation due to such a manager, and
  `(iii) meets such other standards as the State may establish.
  `(3) APPEAL PROCEDURES- Each State which elects to provide community care
  under this section must have in effect an appeals process for individuals
  who disagree with the ICCP established under this subsection.
  `(e) CEILING ON PAYMENT AMOUNTS AND MAINTENANCE OF EFFORT-
  `(1) CEILING ON PAYMENT AMOUNTS- Payments may not be made under section
  1903(a) to a State for community care provided under this section in a
  quarter to the extent that the medical assistance for such care in the
  quarter exceeds 30 percent of the product of--
  `(A) the average number of individuals in the quarter receiving such care
  under this section,
  `(B) the average per diem rate of payment which the Secretary has determined
  (before the beginning of the quarter) will be payable under title XVIII
  (without regard to coinsurance) for extended care services to be provided
  in the State during such quarter, and
  `(C) the number of days in such quarter.
  `(2) MAINTENANCE OF EFFORT-
  `(A) ANNUAL REPORTS- As a condition for the receipt of payment under
  section 1903(a) with respect to medical assistance provided by a State
  for community care (other than under a waiver under section 1915(c) and
  other than home health care services described in section 1905(a)(7)
  and personal care services (specified under regulations under section
  1905(a)(23)) to functionally disabled elderly individuals, the State
  shall report to the Secretary, with respect to each Federal fiscal year
  (beginning with fiscal year 1990) and in a format developed or approved
  by the Secretary, the amount of non-Federal funds obligated by the State
  (including funds obligated by localities in the State) with respect to
  the provision of community care (other than under such a waiver or such
  services) to functionally disabled elderly individuals in that fiscal year.
  `(B) REDUCTION IN PAYMENT IF FAILURE TO MAINTAIN EFFORT- In applying section
  1903(a)(1) with respect to the total amount expended by a State for calendar
  quarters in a fiscal year (beginning with fiscal year 1991) for community
  care to the functionally disabled elderly individuals (other than under
  a waiver under section 1915(c) and other than home health care services
  described in section 1905(a)(7) and personal care services (specified under
  regulations under section 1905(a)(23)), such expenditures shall be reduced by
  the amount reported under subparagraph (A) with respect to fiscal year 1990.
  `(3) DIRECT PAYMENT TO PROVIDERS OF COMMUNITY CARE- Nothing in this title
  shall be construed as authorizing a State to permit payment for community
  care to be made through a qualified community care case manager.
  `(f) MINIMUM REQUIREMENTS FOR COMMUNITY CARE-
  `(1) IN GENERAL- Community care provided under this section must meet
  such requirements for individuals' rights and quality as are published
  or developed by the Secretary under subsection (j). Such requirements
  shall include--
  `(A) the requirement that individuals providing community care are competent
  to provide such care,
  `(B) guidelines for such minimum compensation for individuals providing
  such care as will assure the availability and continuity of competent
  individuals to provide such care for functionally disabled individuals
  who have functional disabilities of varying levels of severity, and
  `(C) the rights specified in paragraph (2).
Nothing in this section shall be construed as preventing competent individuals
(other than members of the family of an individual) from providing, and
being paid directly for, community care.
  `(2) SPECIFIED RIGHTS- The rights specified in this paragraph are as follows:
  `(A) FREE CHOICE- The right to be fully informed in advance about care
  and treatment, to be fully informed in advance of any changes in care or
  treatment that may affect the individual's well-being, and (except with
  respect to an individual adjudged incompetent) to participate in planning
  care and treatment or changes in care and treatment.
  `(B) FREE FROM RESTRAINTS- The right to be free from physical or mental
  abuse, corporal punishment, involuntary seclusion, and any physical or
  chemical restraints imposed for purposes of discipline or convenience and
  not required to treat the individual's medical symptoms. Restraints may
  only be imposed--
  `(i) to ensure the physical safety of the individual or other individuals,
  and
  `(ii) only upon the written order of a physician that specifies the
  duration and circumstances under which the restraints are to be used
  (except in emergency circumstances specified by the Secretary until such
  an order could reasonably be obtained).
  `(C) PRIVACY- The right to privacy with regard to accommodations, medical
  treatment, written and telephonic communications, visits, and meetings of
  family and friends and of groups.
  `(D) CONFIDENTIALITY- The right to confidentiality of personal and clinical
  records.
  `(E) GRIEVANCES- The right to voice grievances with respect to treatment or
  care that is (or fails to be) furnished, without discrimination or reprisal
  (or threat of discrimination or reprisal) for voicing the grievances and the
  right to prompt efforts by the provider to resolve grievances the individual
  may have, including those with respect to the behavior of other individuals.
  `(F) OTHER RIGHTS- Any other right established by the Secretary.
  `(g) MINIMUM REQUIREMENTS FOR COMMUNITY CARE SETTINGS-
  `(1) COMMUNITY CARE SETTING DEFINED- In this section, the term `community
  care setting' means--
  `(A) a nonresidential setting, or
  `(B) a residential setting (including a foster home, board-and-care
  facility, or other group living arrangement, but not including a setting
  to the extent it is a nursing facility) in which more than 2 unrelated
  adults reside and in which personal services (other than merely board)
  are provided in conjunction with residing in the setting,
in which community care under this section is provided.
  `(2) MINIMUM REQUIREMENTS- A community care setting in which community
  care is provided under this section must meet the following requirements:
  `(A) SECRETARIAL REQUIREMENTS- A setting must meet such requirements as
  are published or developed by the Secretary under subsection (j).
  `(B) SPECIFIED RIGHTS, RIGHTS OF INCOMPETENT RESIDENTS, USE OF
  PSYCHOPHARMACOLOGIC DRUGS, ACCESS AND VISITATION RIGHTS, PROTECTION OF
  RESIDENT FUNDS- A setting must meet the requirements of subparagraphs (A),
  (C), and (D) of paragraph (1), paragraph (3), and paragraph (6) of section
  1919(c), to the extent applicable to such a setting.
  `(C) NOTICE OF RIGHTS- A setting must inform each individual receiving
  community care under this section in the setting, orally and in writing
  at the time the individual first receives community care in the setting,
  of the individual's legal rights with respect to such a setting and the
  care provided in the setting.
  `(D) LICENSING- A setting must be licensed under applicable State and
  local law.
  `(E) LIFE SAFETY CODE- A setting must meet such provisions of such edition
  (as specified by the Secretary in regulation) of the Life Safety Code of
  the National Fire Protection Association as are applicable and appropriate
  to the community care setting; except that--
  `(i) the Secretary may waive, for such periods as he deems appropriate,
  specific provisions of such Code which if rigidly applied would result in
  unreasonable hardship upon a setting, but only if such waiver would not
  adversely affect the health and safety of clients or personnel, and
  `(ii) the provisions of such Code shall not apply in any State if the
  Secretary finds that in such State there is in effect a fire and safety
  code, imposed by State law, which adequately protects clients of and
  personnel in community care settings.
  `(F) SANITARY AND INSPECTION CONTROL AND MAINTENANCE OF PHYSICAL ENVIRONMENT-
  A setting must--
  `(i) establish and maintain infection control standards designed to provide a
  safe, sanitary, and comfortable environment in which residents reside and to
  help prevent the development and transmission of disease and infection, and
  `(ii) be maintained in a manner to protect the health and safety of
  residents, personnel, and the general public.
  `(3) DISCLOSURE OF OWNERSHIP AND CONTROL INTERESTS AND EXCLUSION OF REPEATED
  VIOLATORS- A community care setting--
  `(A) must disclose persons with an ownership or control interest (including
  such persons as defined in section 1124(a)(3)) in the setting, and
  `(B) may not have, as a person with an ownership or control interest in the
  setting, any individual or person who has been excluded from participation
  in the program under this title or who has had such an ownership or control
  interest in one or more community care settings which have been found
  repeatedly to be substandard or to have failed to meet the requirements
  of paragraph (2).
  `(h) SURVEY AND CERTIFICATION PROCESS-
  `(1) CERTIFICATIONS-
  `(A) RESPONSIBILITIES OF THE STATE-
  `(i) IN GENERAL- Under each State plan under this title, the State shall
  be responsible for certifying the compliance of providers of community care
  and community care settings with the applicable requirements of subsections
  (f) and (g).
  `(ii) CONSTRUCTION- The failure of the Secretary to issue regulations to
  carry out this subsection shall not relieve a State of its responsibility
  under this subsection.
  `(B) RESPONSIBILITIES OF THE SECRETARY- The Secretary shall be responsible
  for certifying the compliance of State providers of community care, and
  of State community care settings in which such care is provided, with the
  requirements of subsections (f) and (g).
  `(C) FREQUENCY OF CERTIFICATIONS- Certification of providers and settings
  under this subsection shall occur no less frequently than once every
  12 months.
  `(2) REVIEWS OF PROVIDERS-
  `(A) IN GENERAL- The certification under this subsection with respect to
  a provider of community care must be based on a periodic review of the
  provider's performance in providing the care required under ICPP's in
  accordance with the requirements of subsection (f). Such periodic review
  shall be conducted, not less often than annually, by an agency (other than
  the single State agency described in section 1902(a)(5)) and shall be based
  on information that includes the views of qualified community care case
  managers whose clients have received community care from such providers and
  from a sample of individuals receiving community care from such providers.
  `(B) SPECIAL REVIEWS OF COMPLIANCE- If the Secretary has reason to question
  the compliance of a provider of community care with any of the requirements
  of subsection (f), the Secretary may conduct a review of the provider and,
  on the basis of that review, make independent and binding determinations
  concerning the extent to which the provider meets such requirements.
  `(3) SURVEYS OF COMMUNITY CARE SETTINGS-
  `(A) IN GENERAL- The certification under this subsection with respect to
  a community care setting must be based on a survey. Such survey for such a
  setting must be conducted without prior notice to the setting. Any individual
  who notifies (or causes to be notified) a community care setting of the time
  or date on which such a survey is scheduled to be conducted is subject to
  a civil money penalty of not to exceed $2,000. The provisions of section
  1128A (other than subsections (a) and (b)) shall apply to a civil money
  penalty under the previous sentence in the same manner as such provisions
  apply to a penalty or proceeding under section 1128A(a). The Secretary
  shall review each State's procedures for scheduling and conducting such
  surveys to assure that the State has taken all reasonable steps to avoid
  giving notice of such a survey through the scheduling procedures and the
  conduct of the surveys themselves.
  `(B) SURVEY PROTOCOL- Surveys under this paragraph shall be conducted based
  upon a protocol which the Secretary has provided for under subsection (j).
  `(C) PROHIBITION OF CONFLICT OF INTEREST IN SURVEY TEAM MEMBERSHIP- A
  State and the Secretary may not use as a member of a survey team under this
  paragraph an individual who is serving (or has served within the previous
  2 years) as a member of the staff of, or as a consultant to, the community
  care setting being surveyed (or the person responsible for such setting)
  respecting compliance with the requirements of subsection (g) or who has
  a personal or familial financial interest in the setting being surveyed.
  `(D) VALIDATION SURVEYS OF COMMUNITY CARE SETTINGS- The Secretary shall
  conduct onsite surveys of a representative sample of community care settings
  in each State, within 2 months of the date of surveys conducted under
  subparagraph (A) by the State, in a sufficient number to allow inferences
  about the adequacies of each State's surveys conducted under subparagraph
  (A). In conducting such surveys, the Secretary shall use the same survey
  protocols as the State is required to use under subparagraph (B). If the
  State has determined that an individual setting meets the requirements
  of subsection (g), but the Secretary determines that the setting does not
  meet such requirements, the Secretary's determination as to the setting's
  noncompliance with such requirements is binding and supersedes that of
  the State survey.
  `(E) SPECIAL SURVEYS OF COMPLIANCE- If the Secretary has reason to question
  the compliance of a community care setting with any of the requirements
  of subsection (g), the Secretary may conduct a survey of the setting and,
  on the basis of that survey, make independent and binding determinations
  concerning the extent to which the setting meets such requirements.
  `(4) INVESTIGATION OF COMPLAINTS AND MONITORING OF PROVIDERS AND SETTINGS-
  Each State and the Secretary shall maintain procedures and adequate staff to
  investigate complaints of violations of applicable requirements imposed on
  providers of community care or on community care settings under subsections
  (f) and (g).
  `(5) INVESTIGATION OF ALLEGATIONS OF INDIVIDUAL NEGLECT AND ABUSE
  AND MISAPPROPRIATION OF INDIVIDUAL PROPERTY AND PUBLIC DISCLOSURE OF
  FINDINGS- The State shall provide, through the agency responsible for
  surveys and certification of providers of community care and community
  care settings under this subsection, for a process for the receipt,
  review, and investigation of allegations of individual neglect and abuse
  (including injuries of unknown source) by individuals providing such care
  or in such setting and of misappropriation of individual property by such
  individuals. The State shall, after notice to the individual involved and a
  reasonable opportunity for hearing for the individual to rebut allegations,
  make a finding as to the accuracy of the allegations. If the State finds
  that an individual has neglected or abused an individual receiving community
  care or misappropriated such individual's property, the State shall notify
  the individual against whom the finding is made. A State shall not make a
  finding that a person has neglected an individual receiving community care
  if the person demonstrates that such neglect was caused by factors beyond
  the control of the person. The State shall provide for public disclosure
  of findings under this paragraph upon request and for inclusion, in any
  such disclosure of such findings, of any brief statement (or of a clear
  and accurate summary thereof) of the individual disputing such findings.
  `(6) DISCLOSURE OF RESULTS OF INSPECTIONS AND ACTIVITIES-
  `(A) PUBLIC INFORMATION- Each State, and the Secretary, shall make available
  to the public--
  `(i) information respecting all surveys, reviews, and certifications made
  under this subsection respecting providers of community care and community
  care settings, including statements of deficiencies,
  `(ii) copies of cost reports (if any) of such providers and settings filed
  under this title,
  `(iii) copies of statements of ownership under section 1124, and
  `(iv) information disclosed under section 1126.
  `(B) NOTICES OF SUBSTANDARD CARE- If a State finds that--
  `(i) a provider of community care has provided care of substandard quality
  with respect to an individual, the State shall make a reasonable effort to
  notify promptly (I) an immediate family member of each such individual and
  (II) individuals receiving community care from that provider under this
  title, or
  `(ii) a community care setting is substandard, the State shall make a
  reasonable effort to notify promptly (I) individuals receiving community
  care in that setting, and (II) immediate family members of such individuals.
  `(C) ACCESS TO FRAUD CONTROL UNITS- Each State shall provide its State
  medicaid fraud and abuse control unit (established under section 1903(q))
  with access to all information of the State agency responsible for surveys,
  reviews, and certifications under this subsection.
  `(i) ENFORCEMENT PROCESS FOR PROVIDERS OF COMMUNITY CARE-
  `(1) STATE AUTHORITY-
  `(A) IN GENERAL- If a State finds, on the basis of a review under subsection
  (h)(2) or otherwise, that a provider of community care no longer meets
  the requirements of this section and further finds that the provider's
  deficiencies--
  `(i) immediately jeopardize the health or safety of individuals receiving
  its services, the State shall take immediate action to remove the jeopardy
  and correct the deficiencies or terminate the provider's participation under
  the State plan and may, in addition, provide for a civil money penalty, or
  `(ii) do not immediately jeopardize the health or safety of such individuals,
  the State may--
  `(I) terminate the provider's participation under the State plan,
  `(II) provide for a civil money penalty, or
  `(III) do both.
Nothing in this subparagraph shall be construed as restricting the remedies
available to a State to remedy a provider's deficiencies. If the State finds
that a provider meets such requirements but, as of a previous period, did
not meet such requirements, the State may provide for a civil money penalty
under subparagraph (B) for the period during which it finds that the provider
was not in compliance with such requirements.
  `(B) CIVIL MONEY PENALTY-
  `(i) IN GENERAL- Each State shall establish by law (whether statute or
  regulation) at least the following remedy: A civil money penalty assessed
  and collected, with interest, for each day in which the provider is or was
  out of compliance with a requirement of this section. Funds collected by
  a State as a result of imposition of such a penalty (or as a result of the
  imposition by the State of a civil money penalty under subsection (h)(3)(A))
  may be applied to reimbursement of individuals for personal funds lost due
  to a failure of community care providers to meet the requirements of this
  section. The State also shall specify criteria, as to when and how this
  remedy is to be applied and the amounts of any penalties. Such criteria
  shall be designed so as to minimize the time between the identification
  of violations and final imposition of the penalties and shall provide
  for the imposition of incrementally more severe penalties for repeated or
  uncorrected deficiencies.
  `(ii) DEADLINE AND GUIDANCE- Each State which elects to provide community
  care under this section must establish the civil money penalty remedy
  described in clause (i) applicable to all providers of community care covered
  under this section. The Secretary shall provide, through regulations or
  otherwise by not later than July 1, 1991, guidance to States in establishing
  such remedy; but the failure of the Secretary to provide such guidance
  shall not relieve a State of the responsibility for establishing such remedy.
  `(2) SECRETARIAL AUTHORITY-
  `(A) FOR STATE PROVIDERS- With respect to a State provider of community
  care, the Secretary shall have the authority and duties of a State under
  this subsection, except that the civil money penalty remedy described in
  subparagraph (C) shall be substituted for the civil money remedy described
  in paragraph (1)(B)(i).
  `(B) OTHER PROVIDERS- With respect to any other provider of community care in
  a State, if the Secretary finds that a provider no longer meets a requirement
  of this section and further finds that the provider's deficiencies--
  `(i) immediately jeopardize the health or safety of individuals receiving its
  services, the Secretary shall take immediate action to remove the jeopardy
  and correct the deficiencies or terminate the provider's participation
  under the State plan and may, in addition, provide for a civil money
  penalty under subparagraph (C), or
  `(ii) do not immediately jeopardize the health or safety of such individuals,
  the Secretary may--
  `(I) terminate the provider's participation under the State plan,
  `(II) provide for a civil money penalty under subparagraph (C), or
  `(III) do both.
If the Secretary finds that a provider meets such requirements but, as of a
previous period, did not meet such requirements, the Secretary may provide for
a civil money penalty under subparagraph (C) for the period during which the
Secretary finds that the provider was not in compliance with such requirements.
  `(C) CIVIL MONEY PENALTY- If the Secretary finds on the basis of a review
  under subsection (h)(2) or otherwise that a community care provider no
  longer meets the requirements of this section, the Secretary shall impose
  a civil money penalty in an amount not to exceed $10,000 for each day of
  noncompliance. The provisions of section 1128A (other than subsections (a)
  and (b)) shall apply to a civil money penalty under the previous sentence in
  the same manner as such provisions apply to a penalty or proceeding under
  section 1128A(a). The Secretary shall specify criteria, as to when and how
  this remedy is to be applied and the amounts of any penalties. Such criteria
  shall be designed so as to minimize the time between the identification
  of violations and final imposition of the penalties and shall provide
  for the imposition of incrementally more severe penalties for repeated or
  uncorrected deficiencies.
  `(j) SECRETARIAL RESPONSIBILITIES-
  `(1) PUBLICATION OF INTERIM REQUIREMENTS-
  `(A) IN GENERAL- The Secretary shall publish, by July 1, 1991, a regulation
  (that shall be effective on an interim basis pending the promulgation of
  final regulations) that sets forth interim requirements, consistent with
  subparagraph (B), for the provision of community care and for community
  care settings, including--
  `(i) the requirements of subsection (c)(2) (relating to comprehensive
  functional assessments, including the use of assessment instruments), of
  subsection (d)(2)(E) (relating to qualifications for qualified community
  care case managers), of subsection (f) (relating to minimum requirements
  for community care), and of subsection (g) (relating to minimum requirements
  for community care settings), and
  `(ii) survey protocols (for use under subsection (h)(3)(A)) which relate
  to such requirements.
  `(B) MINIMUM PROTECTIONS- Interim requirements under subparagraph (A) and
  final requirements under paragraph (2) shall assure, through methods other
  than reliance on State licensure processes, that individuals receiving
  community care are protected from neglect, physical and sexual abuse,
  financial exploitation, inappropriate involuntary restraint, and the
  provision of health care services by individuals in community care settings
  who are not competent to provide such care.
  `(2) DEVELOPMENT OF FINAL REQUIREMENTS- The Secretary shall develop,
  by not later than October 1, 1992--
  `(A) final requirements, consistent with paragraph (1)(B), respecting the
  provision of appropriate, quality community care and respecting community
  care settings under this section, and including at least the requirements
  referred to in paragraph (1)(A)(i), and
  `(B) survey protocols and methods for evaluating and assuring the quality
  of community care settings.
The Secretary may, from time to time, revise such requirements, protocols,
and methods.
  `(3) CONSTRUCTION- Nothing in this subsection shall be construed as
  authorizing the Secretary to develop standards respecting the quality of
  community care and standards respecting community care settings beyond
  the scope of the interim and final requirements specified under paragraphs
  (1) and (2).
  `(4) NO DELEGATION TO STATES- The Secretary's authority under this subsection
  shall not be delegated to States.
  `(5) NO PREVENTION OF MORE STRINGENT REQUIREMENTS BY STATES- Nothing in this
  section shall be construed as preventing States from imposing requirements
  that are more stringent than the requirements published or developed by
  the Secretary under this subsection.
  `(k) APPLICABILITY IN STATES OPERATING UNDER DEMONSTRATION PROJECTS-
  In the case of any State which is providing medical assistance under
  a waiver granted under section 1115(a) with respect to community care,
  the Secretary shall require the State to meet the requirements of this
  section in the same manner as the State would be required to meet such
  requirements if the State had in effect a plan approved under this title
  and had elected to cover community care under this section.'.
  (c) PAYMENT FOR COMMUNITY CARE-
  (1) REASONABLE AND ADEQUATE PAYMENT RATES- Section 1902 of such Act (42
  U.S.C. 1396a) is amended--
  (A) in subsection (a)(13)--
  (i) by striking `and' at the end of subparagraph (D),
  (ii) by inserting `and' at the end of subparagraph (E), and
  (iii) by adding at the end the following new subparagraph:
  `(F) for payment for community care (as defined in section 1927(a)
  and provided under such section) through rates which are reasonable
  and adequate (and which may not be established on a capitation basis or
  any other risk basis) to meet the costs of providing care, efficiently
  and economically, in conformity with applicable State and Federal laws,
  regulations, and quality and safety standards (including those described
  in section 1927(f)(1)(B));'; and
  (B) in subsection (h), by inserting before the period at the end the
  following: `or to limit the amount of payment that may be made under a
  plan under this title for community care'.
  (2) DENIAL OF PAYMENT FOR CIVIL MONEY PENALTIES, ETC- Section 1903(i)(8)
  of such Act (42 U.S.C. 1396b(i)(8)) is amended by inserting `(A)' after
  `medical assistance' and by inserting before the semicolon the following:
  `, or (B) for community care to reimburse (or otherwise compensate) a
  provider of such care for payment of a civil money penalty imposed under
  this title or title XI or for legal expenses in defense of an exclusion or
  civil money penalty under this title or title XI if there is no reasonable
  legal ground for the provider's case'.
  (3) DENIAL OF PAYMENT FOR SUBSTANDARD COMMUNITY CARE AND COMMUNITY CARE
  FURNISHED BY FAMILY MEMBERS OR OTHERWISE PAID FOR- Section 1903(i) of such
  Act is further amended--
  (A) by striking `or' at the end of paragraph (8),
  (B) by striking the period at the end of paragraph (9) and inserting `; or',
  (C) by inserting after paragraph (9) the following new paragraph:
  `(10) for community care under sections 1905(a)(22) and 1927--
  `(A) which does not meet the applicable requirements published or developed
  under section 1927(j),
  `(B) which is furnished in a community care setting--
  `(i) if a survey under section 1927(h)(3)(A) indicates that such setting
  is substandard,
  `(ii) on or after January 1, 1993, with respect to which the State has not
  applied the protocols and methods developed under section 1927(j)(2)(B), or
  `(iii) that does not meet the applicable requirements of paragraphs (2)
  and (3) of section 1927(g),
  `(C) which is provided to a functionally disabled elderly individual by
  members of the family of such individual, or
  `(D) to the extent payment is made for such care other than under this
  title.', and
  (D) by adding at the end the following:
`Clauses (i) and (iii) of paragraph (10)(B) shall not apply once, and
only once, in the case of a setting found to be substandard or not to meet
applicable requirements if the setting is changed within 3 months of the
finding to no longer be substandard and to meet applicable requirements.'.
  (d) CONFORMING AMENDMENTS-
  (1) Section 1902(j) of such Act (42 U.S.C. 1396a(j)) is amended by striking
  `(21)' and inserting `(23)'.
  (2) Section 1902(a)(10)(C)(iv) of such Act (42 U.S.C. 1396a(a)(10)(C)(iv))
  is amended by striking `(20)' and inserting `(22)'.
  (3) Section 1903(a)(2)(A) of such Act (42 U.S.C. 1396b(a)(2)(A)) is amended
  by inserting `and are not attributable to community care for functionally
  disabled elderly individuals' before the semicolon at the end.
 (4) Section 9523(a) of the Consolidated Omnibus Budget Reconciliation Act
 of 1985, as amended by section 4115(d) of the Omnibus Budget Reconciliation
 Act of 1987 (added by section 411(k)(9) of the Medicare Catastrophic Coverage
 Act of 1988) and by section 6408(b) of the Omnibus Budget Reconciliation Act
 of 1989, is amended by striking `July 1, 1990' and inserting `July 1, 1991'.
  (e) EFFECTIVE DATES-
  (1) Except as provided in this subsection, the amendments made by this
  section shall apply to community care furnished on or after July 1, 1991,
  without regard to whether or not final regulations to carry out such
  amendments have been promulgated by such date.
  (2)(A) The amendments made by subsection (c)(1) shall apply to community
  care furnished on or after July 1, 1991, or, if later, 30 days after the
  date of publication of regulations effective on an interim basis under
  section 1927(j)(1) of the Social Security Act.
  (B) The amendment made by subsection (c)(2) shall apply to civil money
  penalties imposed after the date of the enactment of this Act.
  (f) WAIVER OF PAPERWORK REDUCTION, ETC- Chapter 35 of title 44, United
  States Code, and Executive Order 12291 shall not apply to information
  and regulations required for purposes of carrying out this section and
  implementing the amendments made by this section.