Senate Bill No. 553
(By Senators Tomblin, Mr. President, Hunter and Rowe)
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[Introduced February 18, 2004; referred to the Committee on
Health and Human Resources; and then to the Committee on the
Judiciary.]
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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 and
9-4E-9, all relating to establishing the "West Virginia
Medicaid Community Attendant Services and Supports Act";
setting forth legislative findings; requiring the department
of health and human resources to implement and administer a
home- and community-based attendant services and supports
program for eligible disabled individuals; stating statutory
requirements of the program; requiring the department to
propose legislative rules necessary to implement the program;
providing for the rights of eligible individuals and for the
responsibilities of the department; providing for a right of
appeal; requiring development of consumer service plans; requiring a quality assurance plan; requiring that certain
options for service delivery be available; authorizing family
members to be providers under the program; defining terms;
requiring the department to report quarterly to the
legislative oversight commission on health and human resources
accountability; authorizing the creation of administrative
sanctions under the program; and providing for 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, §9-4E-7, §9-4E-8 and 9-4E-9,
all to read as follows:
ARTICLE 4E. WEST VIRGINIA MEDICAID COMMUNITY ATTENDANT SERVICES
AND SUPPORTS ACT.
§9-4E-1. Legislative findings and declarations; creation of "West
Virginia Medicaid Community Attendant Services and
Supports Act;" cost neutrality.
The Legislature hereby finds and declares 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 institutions and nursing
homes;
(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 attendant 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 attendant 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, called "Olmstead"
or "MiCASSA" grants;
(10) The United States Congress, through the centers for
medicare and medicaid services, provides funds for states to use as
nursing home transition grants to identify ways to get and keep
people with disabilities out of nursing homes with the intention
that this program (now used in eight states) can be expanded to
every state in the country; and
(11) Many individuals with disabilities now benefit from the
state's current home- and community-based services waiver program;
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 setting.
Accordingly, there is hereby created the "West Virginia
Medicaid Community Attendant Services and Supports Act." In
enacting this article, it is the specific intention of the
Legislature that the program required under this article and all
costs pertaining to its implementation, administration and
oversight 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-2. Definitions.
Unless the context clearly requires a different meaning, in
this article, the following words have the meanings indicated:
(1) "Agency-provider service option" means a method of
providing community attendant services and supports for an eligible
individual where the personal assistant is employed by a provider
agency, supervised and evaluated by the consumer, and the agency is
the personal assistant's employer of record.
(2) "Attendant services and supports" means the following
services for a disabled individual, which are certified as
necessary by the individual and an individual program planning
team:
(A) Dressing;
(B)Preparing food and assisting the disabled individual with eating;
(C) Bathing and personal hygiene;
(D) Assisting with routine bodily functions, including bowel
and urinary care;
(E) Moving into, out of, or turning in bed;
(F) Laundering and providing other clothing care; and
(G) Cleaning house and performing other services of daily
care, including shopping and transportation, as requested by the
disabled individual and the department.
(3) "Attendant services and supports" are designed to assist
the consumer in accomplishing activities of daily living and
health-related functions through:
(A) Hands-on, direct assistance;
(B) Supervision; or
(C) Cuing.
(4) "Community attendant services and supports" means
attendant services and supports 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 an agency-provider model, a consumer-directed model,
or other model as defined in this section.
(5) "Consumer" means an eligible individual who is a recipient
of attendant services and supports or community-based attendant services and supports.
(6) "Department" means the department of health and human
resources.
(7) (A) "Eligible individual" means an individual with a
disability who:
(i) Is an adult under the age of sixty years; and
(ii) 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.
(B) "Eligible individual" includes an individual with a
cognitive, sensory, or physical disability who:
(i) Has a functional need that limits the individual's ability
to perform one or more activities of daily living;
(ii) Requires substantial supervision or episodic or short-
term crisis assistance; or
(iii) Needs assistance with the performance of health-related
tasks.
(8) "Functional need" means the need for personal assistance
based on abilities and limitations of the consumer, regardless of
medical diagnosis or other category of disability.
(9) "Nursing home transition grant" means the grants available
to states through the centers for medicare and medicaid services as
included in the federal budget to allow states to identify ways to get or keep people with disabilities out of nursing homes.
(10) (A) "Other service options" means methods other than an
agency-provider model.
(B) "Other service options" includes vouchers, direct cash
payments, or use of a fiscal agent to assist in obtaining services.
(11) "Personal assistant" means the individual who directly
provides attendant services and supports.
(12) "Program" means a community-based attendant care program.
(13) "Representative" means a parent, family member, guardian,
advocate, or authorized representative of an eligible individual.
§9-4E-3. Program components, standards and requirements;
legislative rules; planning and oversight
committee; copayments and cost-sharing.
(a) The department shall develop and administer a
comprehensive program of home and community attendant services and
supports for eligible individuals with disabilities who:
(1) Reside in a nursing home or other institutional setting or
are at risk of such a placement; and
(2) Would prefer to live in the community and could do so,
provided that they have the appropriate community attendant
services and supports that would enable them to live and function
in the community setting.
(b) 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.
(c) The department shall establish a planning and oversight
committee to include eligible individuals with disabilities,
representatives of such individuals, and agency service providers
to assist in the development and implementation of all aspects of
a comprehensive program of community attendant services and
supports, including program standards, eligibility determination
instrument and protocol, and a quality assurance program.
(d) (1) The department shall determine copayments and
cost-sharing for a consumer who has an adjusted gross income that
exceeds two hundred twenty-five percent of the federal poverty
level.
(2) The department shall give priority to serving consumers
who have an income at or below two hundred twenty-five percent of
the federal poverty level.
(3) Notwithstanding the provision of paragraph (1) of this
subsection, the department may not structure the copayment and
cost-sharing requirements to be a disincentive to employment.
§9-4E-4. Options and services to be provided; eligibility for
attendant services and supports; eligibility for
medical services; individual service plans required;
choice of personal assistant; rights of eligible
individuals; training; appeal.
(a) To the extent possible, an eligible individual who is a participant in the program may select, manage, and control his or
her own community attendant services and supports.
(b) (1) Attendant services and supports shall be provided in
a consumer's home or other independent living environment,
including, but not limited to, school, work, recreational, and
religious settings.
(2) Attendant services and supports may not be provided in a
nursing facility, intermediate care facility for the mentally
retarded, or other congregate setting.
(c) A consumer receiving services and supports under this
article is eligible for medical assistance if the consumer:
(1) Would be eligible for medical assistance in a medical
institution or nursing home; and
(2) Needs home and community services and supports in order to
remain in the community.
(d) Consumer may schedule services when they are needed,
twenty-four hours a day, seven days a week, as scheduled or needed
on an emergency basis.
(e) (1) Each consumer's program of services shall be based
upon a mutually-agreed-upon individual services plan, jointly
developed by the consumer and the department or its designee.
(2) (A) The department shall ensure that a consumer has an
opportunity to choose between different service delivery options,
including vouchers, consumer-directed individual provider models, and consumer-directed agency models.
(B) (i) A consumer may select or hire whomever he or she
chooses as a personal assistant, including family members.
(ii) A family member may not be barred from receiving medical
assistance payments for providing services.
(f) The department shall offer a consumer the following
training:
(1) How to select, manage, and dismiss an attendant or
personal assistant; and
(2) Assistance with fiscal management of the consumer's
personal assistance services.
(g) A provider of community attendant services and supports
shall assure that a consumer is informed of and accorded his or her
rights and options with respect to selecting, managing, and
changing the consumer's personal assistance services and the
consumer's right to privacy and confidentiality.
(h) The department shall limit participation in the community
attendant services and supports program to eligible individuals
under the age of sixty years who reside in a nursing home or other
institutional setting or who are at risk of such a placement.
(i) Eligibility shall be based on the functional needs of the
consumer, based on his or her abilities and limitations, regardless
of medical diagnosis or other category of disability.
(j) A consumer who is dissatisfied with the administration or provision of his or her community-based attendant services and
supports has a right of appeal to the department.
§9-4E-5. Individual support plans; complaint and appeal.
(a) An initial individualized support plan shall be developed
for each consumer of community-based attendant services and
supports at the time of assessment.
(b) The individualized support plan shall:
(1) Be developed with the consumer or his or her
representative;
(2) Be approved by the consumer or his or her representative;
and
(3) Be given to the consumer and his or her representative in
writing or other appropriate and understandable format.
(c) The individualized support plan shall specify:
(1) The scope of personal assistance services to be provided;
(2) The hours that personal assistance services are to be
provided;
(3) The means of providing alternate sources for attendant
services and supports;
(4) The means of ensuring substitute and emergency attendant
services and supports;
(5) The method of service delivery;
(6) The initial assessment and frequency of reassessment of
the needs of the consumer;
(7) The means to adjust services and hours when changes are
needed;
(8) A mechanism to coordinate attendant services and supports
with other health care services received by the consumer;
(9) The degree and frequency of supervision of the personal
assistant necessary for the effective delivery of attendant
services and supports;
(10) The amount of copayments or cost-sharing, if any;
(11) Outcome measures used to assess the quality of services;
and
(12) Complaint and appeal procedures.
§9-4E-6. Quality assurance program; administrative sanctions;
consumer focus, input and satisfaction with services.
(a) The department shall:
(1) Modify its quality assurance program to maximize consumer
independence and consumer direction in agency-provided and other
service options for community-based attendant services and
supports;
(2) Provide a system that provides for the external monitoring
of the quality of services and ensures ongoing monitoring of the
health and well-being of each recipient;
(3) Require that quality assurance mechanisms shall be
included in the individual's written plan that are appropriate for
the individual and that protect the consumer to the maximum extent possible from abuse, neglect and exploitation;
(4) Make available to the public the findings of the quality
assurance program;
(5) Establish an ongoing public process for development,
implementation and review of the quality assurance program as
described in this section; and
(6) Establish administrative sanctions for violations of this
article.
(b) The system for quality assurance shall be developed with
consumers and their representatives, disability organizations,
providers and other interested parties.
(c) The system for quality assurance shall include meaningful
consumer input, including consumer surveys, that measure the extent
to which participants receive the services described in the
individual plan and participant satisfaction with such services.
§9-4E-7. Legislative oversight; required reports.
The department shall report to the legislative oversight
commission on health and human resources accountability every three
months concerning the status and development of the program under
this article. The first report is due on or before the first day
of September, two thousand four.
§9-4E-8. Grant funding; application for expanded home- and
community-based waiver program; administration of
grant funds; consumer advisory panel; status reports on grant applications and administration.
(a) Unless the context clearly requires otherwise, in this
section, the following words have the meanings indicated:
(1) "Nursing home transition grant" means a grant available to
the department from the centers for medicare and medicaid services
of the United States department of health and human services as
included in the federal budget to allow states to identify ways to
get or keep eligible individuals out of nursing homes.
(2) "Olmstead" or "MiCASSA" grant means a grant available to
the department from the centers for medicare and medicaid services
of the United States department of health and human services as
included in the federal budget.
(b) On or before the first day of September, two thousand
four, the department shall apply for an expanded medicaid home- and
community-based waiver program that includes coverage for any
eligible individual under the age of sixty years who resides in a
nursing home or other institutional setting or who is at risk of
such placement.
(c) (1) The department shall apply to the centers for medicare
and medicaid services of the United States department of health and
human services for an Olmstead or MiCASSA grant for the full range
of activities allowable to change the institutional bias in the
state's service system for disabled individuals.
(2) The grant shall be administered by the department in coordination with the existing medicaid home- and community-based
waiver.
(3) The funds from the Olmstead or MiCASSA grant may be used
to identify, develop, and implement strategies for modifying
policies, practices and procedures that bias the provision of
long-term services toward institutional settings and away from
home- and community-based settings.
(d) (1) The department shall apply to the centers for medicare
and medicaid services of the United States department of health and
human services for a nursing home transition grant to assist in
keeping eligible individuals out of nursing homes or other
institutional settings.
(2) The department shall apply for any other funds that may
become available in order to assist the state in implementing
provisions of this article.
(e) The department shall:
(1) Administer the grant programs;
(2) Include coverage of community-based attendant services and
supports; and
(3) Coordinate with eligible individuals and the home- or
community-based services waiver program under this section.
(f) (1) The department shall establish a consumer advisory
panel of persons with disabilities, family members, advocacy
organizations and service providers by the first day of July, two thousand four, to provide input and review the department's
application and ongoing input and oversight to its implementation
of the home- or community-based waiver program under subsections
(b), (c) and (d) of this section.
(2) The panel shall be comprised of a majority of persons with
disabilities who are not service providers.
(g) On or before the first day of July, two thousand four, the
department shall notify the centers for medicare and medicaid
services of the United States department of health and human
services of West Virginia's intent to expand the existing medicaid
home- and community-based waivers under the Title XIX, §1915(c) of
the federal Social Security Act 42 U.S.C. s. 1396n(c) to redirect
funds to develop adequate and appropriate funding for the program
established by this article.
(h) The department shall report to the legislative commission
on health and human resources accountability every three months
concerning the status of the department's applications under
subsections (b) and (c) of this section.
§9-4E-9. Effective date.
Notwithstanding any other provision of law to the contrary,
this article shall take effect on the first day of July, two
thousand four.
NOTE: The purpose of this bill is to establish the West
Virginia Medicaid Community Attendant Services and Supports Act, which would provide disabled individuals with home- and
community-based personal attendant services and supports in order
to prevent placement in more expensive institutional settings such
as nursing homes.
This article is new; therefore, strike-throughs and
underscoring have been omitted.
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