H. B. 3268
(By Delegates Perry, Moore, Marshall, Mahan,
Guthrie, Williams, Kominar, Perdue,
Fleischauer and Moye)
[Introduced March 20, 2009; referred to the
Committee on Health and Human Resources then Finance.]
A BILL to amend the Code of West Virginia, 1931, as amended, by
adding thereto a new article, designated §9-4E-1, §9-4E-2, §9-
4E-3, §9-4E-4, §9-4E-5, §9-4E-6, §9-4E-7, §9-4E-8, §9-4E-9 and
§9-4E-10, all relating to funding for community-based services
and supports for individuals with disabilities; establishing
the Long-Term Care Redistribution Act; providing definitions
for certain terms; requiring the Department of Health and
Human Resources to modify certain policies to improve
community-based long-term services; to establish an appeals
process; legislative oversight; and requiring legislative
rules and establishing a time line.
Be it enacted by the Legislature of West Virginia:
That the Code of West Virginia, 1931, as amended, be amended
by adding thereto a new article, designated §9-4E-1, §9-4E-2, §9-
4E-3, §9-4E-4, §9-4E-5, §9-4E-6 §9-4E-7, §9-4E-8, §9-4E-9 and §9-
4E-10, all to read as follows:
ARTICLE 4E. LONG TERM CARE REDISTRIBUTION ACT.
§9-4E-1. Title.
This article shall be known as and may be cited as the "Long
Term Care Redistribution Act".
§9-4E-2. Definitions.
As used in this article:
(1) "Community-based services and supports" means services and
supports designed to assist the consumer in accomplishing
activities of daily living and health-related tasks in order to
live in the most integrated setting. These services and supports
are furnished to an individual:
(A) Under a plan of services that is based on personal choice
and a functional assessment and that is agreed upon by the
individual or the individual's representative;
(B) Under existing models or new models developed as part of
enduring improvements in community-based services and supports; and
(C) Are designed to assist West Virginians with disabilities
and seniors to remain independent and avoid inappropriate
institutionalization.
(2) "Consumer" means an eligible individual who has a severe
chronic or permanent disability that precludes or significantly
impairs the individual's independent performance of essential
activities of daily living, self-care, or mobility. This includes
an individual with a cognitive, sensory, mental health, or physical disability who:
(A) Has a functional need that limits the individual's ability
to perform one or more activities of daily living;
(B) Requires short term to ongoing services and supports or
episodic or short-term crisis assistance; or
(C) Needs assistance with the performance of health-related
tasks.
(3) "Department" means the Department of Health and Human
Resources.
(4) "Functional need" means the need for services and supports
based on abilities and limitations of the consumer, regardless of
medical diagnosis or other category of disability.
(5) "Institution" means nursing facility, intermediate care
facility for persons with mental retardation, psychiatric hospital,
or other institutional setting.
(6) "Legal Representative" means a person who has legal
authority to make decisions and sign for an eligible individual
including, but not limited to, a guardian, conservator, power of
attorney, medical power of attorney, or health care surrogate.
(7) "Long-Term Care services" means the range of services that
are delivered in the home, community or an institution to people
with functional or cognitive limitations and require assistance
with performing activities of daily living and include services
provided in a nursing home or in an individual's home by a nurse, health aide or personal attendant.
(8) "Other service options" means methods other than an
agency-provider model including vouchers, cash and counseling, or
use of a fiscal agent to assist in obtaining services.
§9-4E-3. Purpose.
The intent of this legislation is to achieve the following
goals:
(a) Increasing the use of home and community-based services,
rather than institutional care;
(b) Eliminating barriers or mechanisms that prevent or
restrict the flexible use of Medicaid funds to enable Medicaid-
eligible people to receive needed supports in the most integrated
setting;
(c) Increasing the ability of the state's Medicaid program to
assure continued home and community-based supports for people
moving from an institutional setting or preventing
institutionalization; and
(d) Ensuring that procedures are in place to provide quality
assurance to participants and to provide for continuous quality
improvement in services.
§9-4E-4. Implementation of Long Term-Care Redistribution.
(a) The department shall design and implement enduring
improvements in community-based long-term services and support
systems to enable eligible individuals with disabilities to live and participate in community life, particularly with respect to
those practices that will ensure the successful transition of
eligible individuals who:
(1) Reside in a nursing facility, intermediate care facility
for persons with mental retardation, psychiatric hospital, or other
institutional setting; and
(2) Would prefer to live in the community and could do so,
provided that they have the appropriate community-based services
and supports that would enable them to live and function in the
community setting.
(b) The department shall develop and implement a request for
proposal process by which local entities may be selected and
authorized to administer local long-term care and community-based
services.
(c) The department shall utilize the Olmstead Council as the
planning and oversight committee to assist in the development and
implementation of all aspects of a comprehensive program of
community-based services and supports, including program standards,
eligibility determination instrument and protocol, and a quality
assurance program.
(d) The department shall identify and educate eligible
individuals residing in long-term care facilities about the
opportunity to receive community-based services and supports.
(e) The department shall ensure that each eligible individual identified has the opportunity and information to make an informed
choice regarding whether to transition to the community with
community-based services.
(f) A consumer receiving services and supports under this
article may receive assistance if the consumer needs home- and
community-based services and supports in order to move into the
community.
§9-4E-5. Consumer Direction and Self-Determination.
(a) To the maximum extent possible, a consumer or their legal
representative shall design, select, manage, and control his or her
own community-based services and supports in order to move into the
community.
(b) The department will design and implement a voucher program
that permits consumers to direct, manage and pay for their home and
community-based care services. The agency shall apply for any
federal waivers required to implement this program. The cost of
providing those services pursuant to the voucher program shall be
limited to no more than ninety percent of the cost of providing
similar services under the Medicaid program and shall be designed
to provide:
(1) Program flexibility that permits consumers to design,
manage and pay for their own long-term care services, including
hiring and firing their community support workers and
professionals;
(2) Mechanisms to assure quality of service;
(3) An eligibility procedure which presumes the capability of
a consumer (or legal representative) to direct, coordinate and
manage appropriate long-term care services needed and the amount of
any copayment to be made by the consumer, based on income criteria;
(4) Responsibility of the department to provide substantial
and compelling evidence why an individual should not be determined
eligible before such a ruling can be made; and
(5) A payment system by which a consumer receives a voucher in
the amount required to pay for their long-term care services on a
regular determined schedule. The amount of the voucher shall not
be more than ninety percent of the cost of providing the same or
comparable services under Medicaid, less the amount of any
copayment to be paid by the consumer.
§9-4E-6. Standards and requirements.
(a) The department will engage in system reform activities to
redistribute expenditures for long-term services through
administrative actions that reduce reliance on institutional forms
of service and increase community capacity which include:
(1) Long-term care service and community-based service models
that are alternatives to nursing facility, intermediate care
facility for persons with mental retardation, psychiatric hospital,
and other institutional models, provided that the alternative
models are comparable in cost or more cost effective than the nursing home models which provide equivalent services. Any
alternative long-term care service models shall be financially
viable, cost effective, promote consumer independence,
participation and noninstitutionalization and, when appropriate,
consumer direction and may include one or any combination of
community-based services and supports;
(2) Mechanisms to reduce the number of institutional beds,
including a schedule for those reductions and recommendations for
various sources of funding for payments to nursing homes to reduce
the number of licensed beds;
(3) Greater cooperation between institutional and community
providers and providers to promote effective transitions; and
(4) Changes in the Medicaid state plan as needed to implement
the system reform activities.
(b) Community-based services and supports shall be provided in
the most integrated community setting but may not be provided in a
nursing facility, intermediate care facility for the mentally
retarded, psychiatric hospital, or other congregate setting.
(c) The department shall maintain an adequate quality
improvement system so that eligible individuals receive adequate
services and supports.
§9-4E-7. Funding.
(a) The department shall modify policies and procedures to
allow the administrative transfer or integration of funds from state budget accounts that are obligated for expenditures for long-
term care facilities to other accounts for the obligation for the
provision of community-based services and supports when an eligible
individual transitions from residing in such a facility to residing
in the community.
(b) The department shall maximize all existing funding and
funding alternatives including, but not limited to:
(1) Medicaid and Medicare;
(2) Flexible use of reverse mortgages; and
(3) Private insurance coverage for long-term care and
community-based services.
§9-4E-8. Individual support plans; appeal.
(a) A mutually-agreed-upon, individualized support plan shall
be jointly developed by the consumer and the department or its
designee for each consumer of community-based services and supports
as prescribed by the community-based program for which they are
eligible.
(b) A consumer who is dissatisfied with the administration or
provision of his or her community-based services and supports shall
have appeal rights through a responsive and efficient due process
system.
§9-4E-9. Legislative Oversight; required reports.
The department shall report to the Legislative Oversight
Commission on Long-Term Care every three months concerning the progress of policy changes to eliminate the institutional bias and
the status of those eligible individuals who choose to move to
community-based settings. The first report is due on or before
September 1, 2009.
§9-4E-10. Legislative rules.
On or before the filing deadline for a legislative rule to be
considered during the 2010 Regular Session of the West Virginia
Legislature, the Secretary of the Department of Health and Human
Resources, in consultation with the Olmstead Council, shall propose
rules for legislative approval in accordance with the provisions of
article three, chapter twenty-nine-a of this code to implement the
provisions of this article, including, but not limited to, program
components, standards and requirements as set forth in section
three of this article, and an appeal process as set forth in
section four of this article.
NOTE: The purpose of the bill is to create a long-term care
system that supports community based services, patient centered
care, establishes a voucher program for consumers to use for their
care in the most flexible environment possible; to establish an
appeal process; to establish rule-making authority and to establish
reporting requirements.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.