II 118th CONGRESS 1st Session S. 3118 IN THE SENATE OF THE UNITED STATES October 24, 2023 Mr. Casey (for himself, Mr. Merkley , Ms. Duckworth , Ms. Smith , Mr. Blumenthal , Mr. Reed , Ms. Baldwin , Mrs. Gillibrand , Mr. Sanders , Ms. Warren , Ms. Stabenow , Mr. Whitehouse , Mr. Booker , Mr. Welch , Mr. Kaine , Ms. Klobuchar , Mr. Fetterman , Mr. Van Hollen , Mr. Markey , Mr. Heinrich , and Mr. Wyden ) introduced the following bill; which was read twice and referred to the Committee on Finance A BILL To provide for an emergency increase in Federal funding to State Medicaid programs for expenditures on home and community-based services.

1. Short title This Act may be cited as the HCBS Relief Act of 2023 . 2. Additional support for Medicaid home and community-based services (a) Increased FMAP (1) In general Notwithstanding section 1905(b) of the Social Security Act ( 42 U.S.C. 1396d(b) ), in the case of an HCBS program State, the Federal medical assistance percentage determined for the State under section 1905(b) of such Act and, if applicable, increased under subsection (y), (z), or (aa) of section 1905 of such Act ( 42 U.S.C. 1396d ), or section 1915(k) of such Act ( 42 U.S.C. 1396n(k) ), shall be increased by 10 percentage points with respect to expenditures of the State under the State Medicaid program for home and community-based services that are provided during fiscal years 2024 and 2025. In no case may the application of the previous sentence result in the Federal medical assistance percentage determined for a State being more than 95 percent. (2) Definitions In this section: (A) HCBS program State The term HCBS program State means a State that meets the condition described in subsection (b) by submitting an application described in such subsection, which is approved by the Secretary pursuant to subsection (c). (B) Home and community-based services The term home and community-based services means home health care services authorized under paragraph (7) of section 1905(a) of the Social Security Act ( 42 U.S.C. 1396d(a) ), behavioral health services authorized under paragraph (13) of such section, personal care services authorized under paragraph (24) of such section, PACE services authorized under paragraph (26) of such section, services authorized under subsections (b), (c), (i), (j), and (k) of section 1915 of such Act ( 42 U.S.C. 1396n ), such services authorized under a waiver under section 1115 of such Act ( 42 U.S.C. 1315 ), and such other services specified by the Secretary. (b) Condition The condition described in this subsection, with respect to a State, is that the State submits an application to the Secretary, at such time and in such manner as specified by the Secretary, that includes, in addition to such other information as the Secretary shall require— (1) a description of which activities described in subsection (d) that a State plans to implement and a description of how it plans to implement such activities; (2) assurances that all Federal funds attributable to the increase under subsection (a) will be— (A) expended by the State in accordance with this section not later than September 30, 2027; and (B) used— (i) to implement the activities described in subsection (d); (ii) to supplement, and not supplant, the level of State funds expended for home and community-based services for eligible individuals through programs in effect as of the date of the enactment of this section; and (iii) to increase reimbursement rates for home and community-based services to a level that will support recruitment and retention of a sufficient workforce to provide home and community-based services to eligible individuals; and (3) assurances that the State will conduct adequate oversight and ensure the validity of such data as may be required by the Secretary. (c) Approval of application Not later than 90 days after the date of submission of an application of a State under subsection (b), the Secretary shall certify if the application is complete. Upon certification that an application of a State is complete, the application shall be deemed to be approved for purposes of this section. (d) Activities To improve the delivery of HCBS (1) In general A State shall work with community partners, such as Area Agencies on Aging, Centers for Independent Living, non-profit home and community-based services providers, and other entities providing home and community-based services, to implement the purposes described in paragraph (2). (2) Focused areas of HCBS improvement The purposes described in this paragraph, with respect to a State, are the following: (A) To increase rates for home health agencies and agencies that employ direct support professionals (including independent providers in a self-directed or consumer-directed model) to provide home and community-based services under the State Medicaid program, provided that any agency or individual that receives payment under such an increased rate increases the compensation it pays its home health workers or direct support professionals. (B) To provide paid sick leave, paid family leave, and paid medical leave for home health workers and direct support professionals. (C) To provide hazard pay, overtime pay, and shift differential pay for home health workers and direct support professionals. (D) To improve stability of home health worker and direct support professional jobs, including consistent hours, scheduling, pay, and benefit eligibility. (E) To provide home and community-based services to eligible individuals who are on waiting lists for programs approved under sections 1115 or 1915 of the Social Security Act ( 42 U.S.C. 1315 , 1396n). (F) To purchase emergency supplies and equipment, which may include items not typically covered under the Medicaid program, such as personal protective equipment, necessary to enhance access to services and to protect the health and well-being of home health workers and direct support professionals. (G) To pay for the travel of home health workers and direct support professionals to conduct home and community-based services. (H) To recruit new home health workers and direct support professionals. (I) To support family care providers of eligible individuals with needed supplies, equipment, and services, which may include such items as family caregiver pay and respite services. (J) To pay for training for home health workers and direct support professionals. (K) To pay for assistive technologies, staffing, and training to facilitate eligible individuals' communication, and other costs incurred in order to facilitate community integration and ensure an individual’s person-centered service plan continues to be fully implemented. (L) To prepare information and public health and educational materials in accessible formats (including formats accessible to people with low literacy or intellectual disabilities) about prevention, treatment, recovery and other aspects of communicable diseases and threats to the health of eligible individuals, their families, and the general community served by agencies described in subparagraph (A). (M) To protect the health and safety of home health workers and direct support professionals during public health emergencies and natural disasters. (N) To pay for interpreters to assist in providing home and community-based services to eligible individuals and to inform the general public about communicable diseases and other public health threats. (O) To allow day services providers to provide home and community-based services. (P) To pay for other expenses deemed appropriate by the Secretary to enhance, expand, or strengthen Home and Community-Based Services, including retainer payments, and expenses which meet the criteria of the home and community-based settings rule published on January 16, 2014. (Q) To assist eligible individuals who had to relocate to a nursing facility or institutional setting from their homes in— (i) moving back to their homes (including by paying for moving costs, first month’s rent, and other one-time expenses and start-up costs); (ii) resuming home and community-based services; (iii) receiving mental health services and necessary rehabilitative service to regain skills lost while relocated; and (iv) while funds attributable to the increased FMAP under this section remain available, continuing home and community-based services for eligible individuals who were served from a waiting list for such services during the emergency period described in section 1135(g)(1)(B) of the Social Security Act ( 42 U.S.C. 1320b–5(g)(1)(B) ). (e) Reporting requirements (1) State reporting requirements Not later than December 31, 2027, any State with respect to which an application is approved by the Secretary pursuant to subsection (c) shall submit a report to the Secretary that contains the following information: (A) Activities and programs that were funded using Federal funds attributable to such increase. (B) The number of eligible individuals who were served by such activities and programs. (C) The number of eligible individuals who were able to resume home and community-based services as a result of such activities and programs. (2) HHS evaluation (A) In general The Secretary shall evaluate the implementation and outcomes of this section in the aggregate using an external evaluator with experience evaluating home and community-based services, disability programs, and older adult programs. (B) Evaluation criteria For purposes of subparagraph (A), the external evaluator shall— (i) document and evaluate changes in access, availability, and quality of home and community-based services in each HCBS program State; (ii) document and evaluate aggregate changes in access, availability, and quality of home and community-based services across all such States; and (iii) evaluate the implementation and outcomes of this section based on— (I) the impact of this section on increasing funding for home and community-based services; (II) the impact of this section on achieving targeted access, availability, and quality of home and community-based services; and (III) promising practices identified by activities conducted pursuant to subsection (d) that increase access to, availability of, and quality of home and community-based services. (C) Dissemination of evaluation findings The Secretary shall— (i) disseminate the findings from the evaluations conducted under this paragraph to— (I) all State Medicaid directors; and (II) the Committee on Energy and Commerce of the House of Representatives, the Committee on Finance of the Senate, and the Special Committee on Aging of the Senate; and (ii) make all evaluation findings publicly available in an accessible electronic format and any other accessible format determined appropriate by the Secretary. (D) Oversight Each State with respect to which an application is approved by the Secretary pursuant to subsection (c) shall ensure adequate oversight of the expenditure of Federal funds pursuant to such increase in accordance with the Medicaid regulations, including section 1115 and 1915 waiver regulations and special terms and conditions for any relevant waiver or grant program. (3) Non-Application Of The Paperwork Reduction Act Chapter 35 of title 44, United States Code (commonly referred to as the Paperwork Reduction Act of 1995 ), shall not apply to the provisions of this subsection. (f) Additional definitions In this section: (1) Eligible individual The term eligible individual means an individual who is eligible for or enrolled for medical assistance under a State Medicaid program. (2) Medicaid program The term Medicaid program means, with respect to a State, the State program under title XIX of the Social Security Act ( 42 U.S.C. 1396 et seq. ) (including any waiver or demonstration under such title or under section 1115 of such Act ( 42 U.S.C. 1315 ) relating to such title). (3) Secretary The term Secretary means the Secretary of Health and Human Services. (4) State The term State has the meaning given such term for purposes of title XIX of the Social Security Act ( 42 U.S.C. 1396 et seq. ).