I 114th CONGRESS 2d Session H. R. 5902 IN THE HOUSE OF REPRESENTATIVES July 14, 2016 Mr. Tonko (for himself, Mr. Stivers , Mr. Langevin , and Mr. Harper ) 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 a temporary higher Federal medical assistance percentage for Federal expenditures under the Medicaid program that are associated with the cost of compliance with certain Federal regulations with respect to services furnished in certain intermediate care facilities or home and community-based services furnished to individuals with intellectual and developmental disabilities.

1. Short title This Act may be cited as the Disability Community Act of 2016 . 2. Higher FMAP for certain Medicaid expenditures associated with certain regulation compliance (a) In general Section 1903(a)(5) of the Social Security Act ( 42 U.S.C. 1396b(a)(5) ) is amended— (1) by striking an amount equal to and inserting (A) an amount equal to ; (2) by striking supplies; and inserting supplies; and ; and (3) by adding at the end the following: (B) an amount equal to 90 percent of the sum of the amounts expended during a quarter in 2017, 2018, or 2019, for items and services furnished in an intermediate care facility for the mentally retarded or for home and community-based services furnished to individuals with intellectual and developmental disabilities, as the Secretary determines are attributable to compliance with any of the regulations specified in— (i) part 591 of title 29, Code of Federal Regulations; (ii) part 552 of title 29, Code of Federal Regulations; or (iii) part 430, 431, 435, 436, 440, 441, or 447 of title 42, Code of Federal Regulations; . (b) Conforming terminology for intermediate care facilities Title XIX of the Social Security Act ( 42 U.S.C. 1396 et seq. ) is amended— (1) by striking intermediate care facility for the mentally retarded each time such term appears (including in headings) and inserting intermediate care facility for individuals with intellectual and developmental disabilities ; (2) by striking intermediate care facilities for the mentally retarded each time such term appears (including in headings) and inserting intermediate care facilities for individuals with intellectual and developmental disabilities ; (3) by striking State mental retardation or developmental disability authority each time such term appears and inserting State intellectual or developmental disability authority ; (4) in section 1905(d)— (A) in the matter before paragraph (1), by striking thereof) for the mentally retarded or persons and inserting thereof) for individuals with intellectual or developmental disabilities or ; (B) in paragraph (1), by striking mentally retarded individuals and inserting individuals with intellectual or developmental disabilities ; and (C) in paragraph (2), by striking the mentally retarded individual and inserting the individual with an intellectual or developmental disability ; (5) in section 1915(c)(7)(C), by striking mental retardation and inserting intellectual or developmental disabilities ; (6) in section 1919(b)— (A) in paragraph (3)— (i) in subparagraph (E), by striking mentally retarded and inserting has intellectual or developmental disabilities ; and (ii) in subparagraph (F)— (I) in the heading, by striking and mentally retarded individuals and inserting individuals and individuals with intellectual or developmental disabilities ; and (II) in clause (ii)— (aa) by striking is mentally retarded and inserting has an intellectual or developmental disability ; and (bb) by striking for mental retardation and inserting for intellectual or developmental disabilities ; (B) in paragraph (4)— (i) in subparagraph (A)(vii), by striking mentally ill and mentally retarded residents and inserting residents who are mentally ill or who have intellectual or developmental disabilities ; and (ii) in subparagraph (C)(ii)(IV), by striking the mentally retarded and inserting individuals with intellectual or developmental disabilities ; and (7) in section 1919(e)— (A) in paragraph (7)— (i) in subparagraph (A)(i), by striking mentally ill and mentally retarded individuals and inserting individuals who are mentally ill or who have intellectual or developmental disabilities ; (ii) in subparagraph (B)— (I) by striking mental retardation each place such term appears and inserting intellectual or developmental disability ; (II) in clause (ii)— (aa) in the heading, by striking mentally retarded residents and inserting residents with intellectual or developmental disabilities ; and (bb) in the matter preceding subclause (I), by striking is mentally retarded and inserting has an intellectual or developmental disability ; and (III) in clause (iii), by striking mentally ill or mentally retarded resident and inserting resident who is mentally ill or who has an intellectual or developmental disability ; (iii) in subparagraph (C), by striking mental retardation each place such term appears and inserting intellectual or developmental disability ; (iv) in subparagraph (E)— (I) by striking are mentally retarded or and inserting have intellectual or developmental disabilities or are ; and (II) by striking mental retardation and inserting intellectual or developmental disability ; and (v) in subparagraph (G)(ii)— (I) by striking be mentally retarded and inserting have an intellectual or developmental disability ; and (II) by striking is mentally retarded or a person with and inserting has an intellectual or developmental disability or . 3. Electronic visit verification system required for personal care services and home health care services under medicaid (a) In general Section 1903 of the Social Security Act ( 42 U.S.C. 1396b ) is amended by inserting after subsection (k) the following new subsection: (l) (1) Subject to paragraphs (3) and (4), with respect to any amount expended for personal care services or home health care services requiring an in-home visit by a provider that are provided under a State plan under this title (or under a waiver of the plan) and furnished in a calendar quarter beginning on or after January 1, 2019 (or, in the case of home health care services, on or after January 1, 2023), unless a State requires the use of an electronic visit verification system for such services furnished in such quarter under the plan or such waiver, the Federal medical assistance percentage shall be reduced— (A) in the case of personal care services— (i) for calendar quarters in 2019 and 2020, by .25 percentage points; (ii) for calendar quarters in 2021, by .5 percentage points; (iii) for calendar quarters in 2022, by .75 percentage points; and (iv) for calendar quarters in 2023 and each year thereafter, by 1 percentage point; and (B) in the case of home health care services— (i) for calendar quarters in 2023 and 2024, by .25 percentage points; (ii) for calendar quarters in 2025, by .5 percentage points; (iii) for calendar quarters in 2026, by .75 percentage points; and (iv) for calendar quarters in 2027 and each year thereafter, by 1 percentage point. (2) Subject to paragraphs (3) and (4), in implementing the requirement for the use of an electronic visit verification system under paragraph (1), a State shall— (A) consult with agencies and entities that provide personal care services, home health care services, or both under the State plan (or under a waiver of the plan) to ensure that such system— (i) is minimally burdensome; (ii) takes into account existing best practices and electronic visit verification systems in use in the State; and (iii) is conducted in accordance with the requirements of HIPAA privacy and security law (as defined in section 3009 of the Public Health Service Act); (B) take into account a stakeholder process that includes input from beneficiaries, family caregivers, personal care or home health care services workers, and other stakeholders, as determined by the State in accordance with guidance from the Secretary; and (C) ensure that individuals who furnish personal care services, home health care services, or both under the State plan (or under a waiver of the plan) are provided the opportunity for training on the use of such system. (3) Paragraphs (1) and (2) shall not apply in the case of a State that, as of the date of the enactment of this subsection, requires the use of any system for the electronic verification of visits conducted as part of both personal care services and home health care services. (4) (A) In the case of a State described in subparagraph (B), the reduction under paragraph (1) shall not apply— (i) in the case of personal care services, for calendar quarters in 2019; and (ii) in the case of home health care services, for calendar quarters in 2023. (B) For purposes of subparagraph (A), a State described in this subparagraph is a State that demonstrates to the Secretary that the State— (i) has made a good faith effort to comply with the requirements of paragraphs (1) and (2) (including by taking steps to adopt the technology used for an electronic visit verification system); or (ii) in implementing such a system, has encountered unavoidable system de­lays. (5) In this subsection: (A) The term electronic visit verification system means, with respect to personal care services or home health care services, a system under which visits conducted as part of such services are electronically verified with respect to— (i) the type of service performed; (ii) the individual receiving the service; (iii) the date of the service; (iv) the location of service delivery; (v) the individual providing the service; and (vi) the time the service begins and ends. (B) The term home health care services means services described in section 1905(a)(7) provided under a State plan under this title (or under a waiver of the plan). (C) The term personal care services means personal care services provided under a State plan under this title (or under a waiver of the plan), including services provided under section 1905(a)(24), 1915(c), 1915(i), 1915(j), or 1915(k) or under a wavier under section 1115. (6) (A) In the case in which a State requires personal care service and home health care service providers to utilize an electronic visit verification system operated by the State or a contractor on behalf of the State, the Secretary shall pay to the State, for each quarter, an amount equal to 90 per centum of so much of the sums expended during such quarter as are attributable to the design, development, or installation of such system, and 75 per centum of so much of the sums for the operation and maintenance of such system. (B) Subparagraph (A) shall not apply in the case in which a State requires personal care service and home health care service providers to utilize an electronic visit verification system that is not operated by the State or a contractor on behalf of the State. . (b) Collection and dissemination of best practices Not later than January 1, 2018, the Secretary of Health and Human Services shall, with respect to electronic visit verification systems (as defined in subsection (l)(5) of section 1903 of the Social Security Act ( 42 U.S.C. 1396b ), as inserted by subsection (a)), collect and disseminate best practices to State Medicaid Directors with respect to— (1) training individuals who furnish personal care services, home health care services, or both under the State plan under title XIX of such Act (or under a waiver of the plan) on such systems and the operation of such systems and the prevention of fraud with respect to the provision of personal care services or home health care services (as defined in such subsection (l)(5)); and (2) the provision of notice and educational materials to family caregivers and beneficiaries with respect to the use of such electronic visit verification systems and other means to prevent such fraud. (c) Rules of construction (1) No employer-employee relationship established Nothing in the amendment made by this section may be construed as establishing an employer-employee relationship between the agency or entity that provides for personal care services or home health care services and the individuals who, under a contract with such an agency or entity, furnish such services for purposes of part 552 of title 29, Code of Federal Regulations (or any successor regulations). (2) No particular or uniform electronic visit verification system required Nothing in the amendment made by this section shall be construed to require the use of a particular or uniform electronic visit verification system (as defined in subsection (l)(5) of section 1903 of the Social Security Act, as inserted by subsection (a)) by all agencies or entities that provide personal care services or home health care under a State plan under title XIX of the Social Security Act (or under a waiver of the plan) ( 42 U.S.C. 1396 et seq. ). (3) No limits on provision of care Nothing in the amendment made by this section may be construed to limit, with respect to personal care services or home health care services provided under a State plan under title XIX of the Social Security Act (or under a waiver of the plan) ( 42 U.S.C. 1396 et seq. ), provider selection, constrain beneficiaries’ selection of a caregiver, or impede the manner in which care is delivered. (4) No prohibition on state quality measures requirements Nothing in the amendment made by this section shall be construed as prohibiting a State, in implementing an electronic visit verification system (as defined in subsection (l)(5) of section 1903 of the Social Security Act, as inserted by subsection (a)), from establishing requirements related to quality measures for such system.