H. B. 4473
(By Mr. Speaker, (Mr. Kiss), and Delegates
Leach, Perdue and Michael)
[Introduced February 9, 2006; referred to the
Committee on Government Organization 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 and §9-4E-7, all relating
to funding for community-based services and supports for
individuals with disabilities; establishing the "Money Follows
the Person Act;" listing certain findings; providing
definitions for certain terms; requiring the Department of
Health and Human Resources to modify certain policies to
improve community-based long-term services; providing for
individual support services; legislative oversight; and
providing an effective date.
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 and §9-4E-7, all to read as
follows:
ARTICLE 4E. MONEY FOLLOWS THE PERSON ACT.
§9-4E-1. Title.
This act shall be known as and may be cited as the "Money
Follows the Person Act."
§9-4E-2. Legislative findings.
The Legislature finds the following:
(1) Numerous studies have found that an overwhelming majority
of individuals with disabilities who need long-term services and
supports would prefer to receive those services in home- and
community-based settings rather than in nursing homes and other
institutions;
(2) Research on the provision of long-term attendant services
and supports under the medicaid program has revealed a significant
bias toward funding these services in institutional rather than
home- and community-based settings;
(3) Because of this funding bias, significant numbers of
individuals with disabilities who would prefer to live in the
community and could do so with community-based services and
supports are forced to live in unnecessarily segregated
institutional settings if they want to receive needed services and
supports;
(4) Decisions regarding the provision of services and supports
are often influenced by what is reimbursable rather than what
individuals need and want;
(5) There is a growing recognition that disability is a
natural part of the human experience that in no way diminishes a
person's right to live independently or with supports in the most
integrated setting, enjoy self-determination and consumer-directed services, make choices, contribute to society, and enjoy full
inclusion and integration in the mainstream of American society;
(6) The United States Supreme Court ruled in Olmstead v. L.C.,
1195 U.S.S. Ct. 2176 (1999), that persons with disabilities have
the right to live in the most integrated setting appropriate to
each person's needs and each state must ensure this basic civil
right to citizens with disabilities;
(7) Long-term services and supports provided under the
medicaid program must meet the evolving and changing needs and
preferences of individuals with disabilities;
(8) The goals of the nation and the state properly include
providing individuals with disabilities with meaningful choices of
receiving long-term services and supports in the most integrated
setting appropriate, the greatest possible control over the
services received, and quality services that maximize social
functioning in the home and community;
(9) The United States Congress, through the centers for
medicare and medicaid services, offers funding for states to change
the institutional bias in their service systems; and
(10) Many individuals with disabilities now benefit from the
state's current home- and community-based services waivers;
however, more than two thousand persons with disabilities in the
state who are presently confined to inappropriate segregation in
nursing homes would, if given the choice, choose to receive
necessary treatment and services in the most integrated home- and
community-based setting.
Accordingly, it is the specific intention of the Legislature
to establish a "Money Follows the Person" program and that all
costs pertaining to the implementation, administration and
oversight of this program shall be revenue neutral and may not be
funded in whole or in part by general revenue funds unless those
funds are redirected from existing appropriations.
§9-4E-3. 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
function in the most integrated setting. These services and
supports are furnished to an individual:
(A) Under a plan of services that is based on an assessment of
functional need and that is agreed to by the individual or the
individual's representative; and
(B) Under existing models or new models developed as part of
enduring improvements in community-based services and supports.
(2) "Consumer" means an eligible individual who is currently
receiving services and supports in an institutional setting.
(3) "Department" means the Department of Health and Human
Resources.
(4) "Eligible individual" means an 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 substantial supervision or episodic or short-term
crisis assistance; or
(C) Needs assistance with the performance of health-related
tasks.
(6) "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.
(7) "Other service options" means methods other than an
agency-provider model including vouchers, direct cash payments, or
use of a fiscal agent to assist in obtaining services.
(8) "Representative" means a parent, family member, guardian,
advocate, or authorized representative of an eligible individual.
§9-4E-4. Program components, standards and requirements;
legislative rules; planning and oversight committee.
(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
individual transitions from residing in such a facility to residing
in the community.
(b) The department shall design and implement enduring improvements in community-based long-term services and support
systems to enable individuals with disabilities to live and
participate in community life, particularly with respect to those
practices that will ensure the successful transition of individuals
who:
(1) Reside in a nursing home, intermediate care facility for
the mentally retarded 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.
(c) The department will engage in system reform activities to
re-balance expenditures for long-term services through
administrative actions that reduce reliance on institutional forms
of service and build up more community capacity.
(d) The department shall propose legislative rules in
accordance with article three, chapter twenty-nine-a of this code
that are necessary to effectuate the provisions of this article.
(e) The department shall utilize the Olmstead Advisory 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.
(f) To the extent possible, an eligible individual may select,
manage, and control his or her own community-based services and supports.
(g) 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, or other congregate setting.
(h) The department shall identify and educate individuals
residing in long-term care facilities about the opportunity to
receive community-based services and supports.
(i) The department shall ensure that each individual
identified has the opportunity, information, and tools to make an
informed choice regarding whether to transition to the community
with community-based services.
(j) The department shall allow eligible individuals to choose
the setting(s) in which they desire to receive services.
(k) The department shall maintain an adequate quality
improvement system so that eligible individuals receive adequate
services and supports.
(l) A consumer receiving services and supports under this
article is eligible for medical assistance if the consumer needs
home- and community-based services and supports in order to move
into the community.
§9-4E-5. Individual support plans; complaint and appeal.
(a) A mutually-agreed-upon, individualized services 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 a right of appeal to the department.
§9-4E-6. Legislative oversight; required reports.
The department shall report to the Legislative Oversight
Commission on Health and Human Resources accountability 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 the first day of September, two thousand six.
§9-4E-7. Effective date.
Notwithstanding any other provision of law to the contrary,
this article shall take effect on the first day of July, two
thousand six.
NOTE: The purpose of this bill is to establish the Money
Follows the Person Act, which would allow funding currently
supporting individuals in nursing homes or other institutional
settings to follow those individuals into community-based services
and supports.
This article is new; therefore, strike-throughs and
underscoring have been omitted.
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