§ 1396a. State plans for medical assistance

Pub. L. 109–171, title VI, § 6071, Feb. 8, 2006, 120 Stat. 102, as amended by Pub. L. 111–148, title II, § 2403(a), (b)(1), Mar. 23, 2010, 124 Stat. 304, 305; Pub. L. 116–3, § 2, Jan. 24, 2019, 133 Stat. 6; Pub. L. 116–16, § 5, Apr. 18, 2019, 133 Stat. 859; Pub. L. 116–39, § 4, Aug. 6, 2019, 133 Stat. 1061; Pub. L. 116–94, div. N, title I, § 205, Dec. 20, 2019, 133 Stat. 3112; Pub. L. 116–136, div. A, title III, § 3811, Mar. 27, 2020, 134 Stat. 429; Pub. L. 116–159, div. C, title III, § 2301, Oct. 1, 2020, 134 Stat. 731; Pub. L. 116–215, div. B, title I, § 1107, Dec. 11, 2020, 134 Stat. 1043; Pub. L. 116–260, div. CC, title II, § 204(a), (b)(1), (c)–(f), Dec. 27, 2020, 134 Stat. 2980–2983; Pub. L. 117–328, div. FF, title V, § 5114, Dec. 29, 2022, 136 Stat. 5940, provided that: “(a) Program Purpose and Authority.—The Secretary is authorized to award, on a competitive basis, grants to States in accordance with this section for demonstration projects (each in this section referred to as an ‘MFP demonstration project’) designed to achieve the following objectives with respect to institutional and home and community-based long-term care services under State Medicaid programs:“(1) Rebalancing.—Increase the use of home and community-based, rather than institutional, long-term care services. “(2) Money follows the person.—Eliminate barriers or mechanisms, whether in the State law, the State Medicaid plan, the State budget, or otherwise, that prevent or restrict the flexible use of Medicaid funds to enable Medicaid-eligible individuals to receive support for appropriate and necessary long-term services in the settings of their choice. “(3) Continuity of service.—Increase the ability of the State Medicaid program to assure continued provision of home and community-based long-term care services to eligible individuals who choose to transition from an institutional to a community setting. “(4) Quality assurance and quality improvement.—Ensure that procedures are in place (at least comparable to those required under the qualified HCB program) to provide quality assurance for eligible individuals receiving Medicaid home and community-based long-term care services and to provide for continuous quality improvement in such services. “(b) Definitions.—For purposes of this section:“(1) Home and community-based long-term care services.—The term ‘home and community-based long-term care services’ means, with respect to a State Medicaid program, home and community-based services (including home health and personal care services) that are provided under the State’s qualified HCB program or that could be provided under such a program but are otherwise provided under the Medicaid program. “(2) Eligible individual.—The term ‘eligible individual’ means, with respect to an MFP demonstration project of a State, an individual in the State—“(A) who, immediately before beginning participation in the MFP demonstration project—“(i) resides (and has resided for a period of not less than 60 consecutive days) in an inpatient facility; “(ii) is receiving Medicaid benefits for inpatient services furnished by such inpatient facility; and “(iii) with respect to whom a determination has been made that, but for the provision of home and community-based long-term care services, the individual would continue to require the level of care provided in an inpatient facility and, in any case in which the State applies a more stringent level of care standard as a result of implementing the State plan option permitted under section 1915(i) of the Social Security Act [42 U.S.C. 1396n(i)], the individual must continue to require at least the level of care which had resulted in admission to the institution; and “(B) who resides in a qualified residence beginning on the initial date of participation in the demonstration project. “(3) Inpatient facility.—The term ‘inpatient facility’ means a hospital, nursing facility, or intermediate care facility for the mentally retarded. Such term includes an institution for mental diseases, but only, with respect to a State, to the extent medical assistance is available under the State Medicaid plan for services provided by such institution. “(4) Medicaid.—The term ‘Medicaid’ 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). “(5) Qualified hcb program.—The term ‘qualified HCB program’ means a program providing home and community-based long-term care services operating under Medicaid, whether or not operating under waiver authority. “(6) Qualified residence.—The term ‘qualified residence’ means, with respect to an eligible individual—“(A) a home owned or leased by the individual or the individual’s family member; “(B) an apartment with an individual lease, with lockable access and egress, and which includes living, sleeping, bathing, and cooking areas over which the individual or the individual’s family has domain and control; and “(C) a residence, in a community-based residential setting, in which no more than 4 unrelated individuals reside. “(7) Qualified expenditures.—The term ‘qualified expenditures’ means expenditures by the State under its MFP demonstration project for home and community-based long-term care services for an eligible individual participating in the MFP demonstration project, but only with respect to services furnished during the 12-month period beginning on the date the individual is discharged from an inpatient facility referred to in paragraph (2)(A)(i). “(8) Self-directed services.—The term ‘self-directed’ means, with respect to home and community-based long-term care services for an eligible individual, such services for the individual which are planned and purchased under the direction and control of such individual or the individual’s authorized representative (as defined by the Secretary), including the amount, duration, scope, provider, and location of such services, under the State Medicaid program consistent with the following requirements:“(A) Assessment.—There is an assessment of the needs, capabilities, and preferences of the individual with respect to such services. “(B) Service plan.—Based on such assessment, there is developed jointly with such individual or the individual’s authorized representative a plan for such services for such individual that is approved by the State and that—“(i) specifies those services, if any, which the individual or the individual’s authorized representative would be responsible for directing; “(ii) identifies the methods by which the individual or the individual’s authorized representative or an agency designated by an individual or representative will select, manage, and dismiss providers of such services; “(iii) specifies the role of family members and others whose participation is sought by the individual or the individual’s authorized representative with respect to such services; “(iv) is developed through a person-centered process that— “(I) is directed by the individual or the individual’s authorized representative; “(II) builds upon the individual’s capacity to engage in activities that promote community life and that respects the individual’s preferences, choices, and abilities; and “(III) involves families, friends, and professionals as desired or required by the individual or the individual’s authorized representative; “(v) includes appropriate risk management techniques that recognize the roles and sharing of responsibilities in obtaining services in a self-directed manner and assure the appropriateness of such plan based upon the resources and capabilities of the individual or the individual’s authorized representative; and “(vi) may include an individualized budget which identifies the dollar value of the services and supports under the control and direction of the individual or the individual’s authorized representative. “(C) Budget process.—With respect to individualized budgets described in subparagraph (B)(vi), the State application under subsection (c)—“(i) describes the method for calculating the dollar values in such budgets based on reliable costs and service utilization; “(ii) defines a process for making adjustments in such dollar values to reflect changes in individual assessments and service plans; and “(iii) provides a procedure to evaluate expenditures under such budgets. “(9) 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.]. “(10) Secretary.—The term ‘Secretary’ means the Secretary of Health and Human Services. “(c) State Application.—A State seeking approval of an MFP demonstration project shall submit to the Secretary, at such time and in such format as the Secretary requires, an application meeting the following requirements and containing such additional information, provisions, and assurances, as the Secretary may require:“(1) Assurance of a public development process.—The application contains an assurance that the State has engaged, and will continue to engage, in a public process for the design, development, and evaluation of the MFP demonstration project that allows for input from eligible individuals, the families of such individuals, authorized representatives of such individuals, providers, and other interested parties. “(2) Operation in connection with qualified hcb program to assure continuity of services.—The State will conduct the MFP demonstration project for eligible individuals in conjunction with the operation of a qualified HCB program that is in operation (or approved) in the State for such individuals in a manner that assures continuity of Medicaid coverage for such individuals so long as such individuals continue to be eligible for medical assistance. “(3) Demonstration project period.—The application shall specify the period of the MFP demonstration project. “(4) Service area.—The application shall specify the service area or areas of the MFP demonstration project, which may be a statewide area or 1 or more geographic areas of the State. “(5) Targeted groups and numbers of individuals served.—The application shall specify—“(A) the target groups of eligible individuals to be assisted to transition from an inpatient facility to a qualified residence during each fiscal year of the MFP demonstration project; “(B) the projected numbers of eligible individuals in each targeted group of eligible individuals to be so assisted during each such year; and “(C) the estimated total annual qualified expenditures for each fiscal year of the MFP demonstration project. “(6) Individual choice, continuity of care.—The application shall contain assurances that—“(A) each eligible individual or the individual’s authorized representative will be provided the opportunity to make an informed choice regarding whether to participate in the MFP demonstration project; “(B) each eligible individual or the individual’s authorized representative will choose the qualified residence in which the individual will reside and the setting in which the individual will receive home and community-based long-term care services; “(C) the State will continue to make available, so long as the State operates its qualified HCB program consistent with applicable requirements, home and community-based long-term care services to each individual who completes participation in the MFP demonstration project for as long as the individual remains eligible for medical assistance for such services under such qualified HCB program (including meeting a requirement relating to requiring a level of care provided in an inpatient facility and continuing to require such services, and, if the State applies a more stringent level of care standard as a result of implementing the State plan option permitted under section 1915(i) of the Social Security Act [42 U.S.C. 1396n(i)], meeting the requirement for at least the level of care which had resulted in the individual’s admission to the institution). “(7) Expenditures.—The application shall—“(A) provide such information as the Secretary may require concerning the dollar amounts of State Medicaid expenditures for the fiscal year, immediately preceding the first fiscal year of the State’s MFP demonstration project, for long-term care services and the percentage of such expenditures that were for institutional long-term care services or were for home and community-based long-term care services; and “(B)(i) specify the methods to be used by the State to increase, for each fiscal year during the MFP demonstration project, the dollar amount of such total expenditures for home and community-based long-term care services and the percentage of such total expenditures for long-term care services that are for home and community-based long-term care services; “(ii) describe the extent to which the MFP demonstration project will contribute to accomplishment of objectives described in subsection (a); and “(iii) include a work plan that describes for each Federal fiscal year that occurs during the proposed MFP demonstration project—“(I) the use of grant funds for each proposed initiative that is designed to accomplish the objective described in subsection (a)(1), including a funding source for each activity that is part of each such proposed initiative; “(II) an evaluation plan that identifies expected results for each such proposed initiative; and “(III) a sustainability plan for components of such proposed initiatives that are intended to improve transitions, which shall be updated with actual expenditure information for each Federal fiscal year that occurs during the MFP demonstration project; and “(iv) contain assurances that grant funds used to accomplish the objective described in subsection (a)(1) shall be obligated not later than 24 months after the date on which the funds are awarded and shall be expended not later than 60 months after the date on which the funds are awarded (unless the Secretary waives either such requirement). “(8) Money follows the person.—The application shall describe the methods to be used by the State to eliminate any legal, budgetary, or other barriers to flexibility in the availability of Medicaid funds to pay for long-term care services for eligible individuals participating in the project in the appropriate settings of their choice, including costs to transition from an institutional setting to a qualified residence. “(9) Maintenance of effort and cost-effectiveness.—The application shall contain or be accompanied by such information and assurances as may be required to satisfy the Secretary that—“(A) total expenditures under the State Medicaid program for home and community-based long-term care services will not be less for any fiscal year during the MFP demonstration project than for the greater of such expenditures for—“(i) fiscal year 2005; or “(ii) any succeeding fiscal year before the first year of the MFP demonstration project; and “(B) in the case of a qualified HCB program operating under a waiver under subsection (c) or (d) of section 1915 of the Social Security Act (42 U.S.C. 1396n), but for the amount awarded under a grant under this section, the State program would continue to meet the cost-effectiveness requirements of subsection (c)(2)(D) of such section or comparable requirements under subsection (d)(5) of such section, respectively. “(10) Waiver requests.—The application shall contain or be accompanied by requests for any modification or adjustment of waivers of Medicaid requirements described in subsection (d)(3), including adjustments to the maximum numbers of individuals included and package of benefits, including one-time transitional services, provided. “(11) Quality assurance and quality improvement.—The application shall include—“(A) a plan satisfactory to the Secretary for quality assurance and quality improvement for home and community-based long-term care services under the State Medicaid program, including a plan to assure the health and welfare of individuals participating in the MFP demonstration project; and “(B) an assurance that the State will cooperate in carrying out activities under subsection (f) to develop and implement continuous quality assurance and quality improvement systems for home and community-based long-term care services. “(12) Optional program for self-directed services.—If the State elects to provide for any home and community-based long-term care services as self-directed services (as defined in subsection (b)(8)) under the MFP demonstration project, the application shall provide the following:“(A) Meeting requirements.—A description of how the project will meet the applicable requirements of such subsection for the provision of self-directed services. “(B) Voluntary election.—A description of how eligible individuals will be provided with the opportunity to make an informed election to receive self-directed services under the project and after the end of the project. “(C) State support in service plan development.—Satisfactory assurances that the State will provide support to eligible individuals who self-direct in developing and implementing their service plans. “(D) Oversight of receipt of services.—Satisfactory assurances that the State will provide oversight of eligible individual’s receipt of such self-directed services, including steps to assure the quality of services provided and that the provision of such services are consistent with the service plan under such subsection. Nothing in this section shall be construed as requiring a State to make an election under the project to provide for home and community-based long-term care services as self-directed services, or as requiring an individual to elect to receive self-directed services under the project. “(13) Reports and evaluation.—The application shall provide that—“(A) the State will furnish to the Secretary such reports concerning the MFP demonstration project, on such timetable, in such uniform format, and containing such information as the Secretary may require, as will allow for reliable comparisons of MFP demonstration projects across States, and in such manner as will meet the reporting requirements set forth for the Transformed Medicaid Statistical Information System (T–MSIS); “(B) the State shall report on a quarterly basis on the use of grant funds by distinct activity, as described in the approved work plan, and by specific population as targeted by the State; “(C) if the State fails to report the information required under subparagraph (B), fails to report such information on a quarterly basis, or fails to make progress under the approved work plan, the State shall implement a corrective action plan approved by the Secretary; and “(D) the State will participate in and cooperate with the evaluation of the MFP demonstration project. “(d) Secretary’s Award of Competitive Grants.—“(1) In general.—The Secretary shall award grants under this section on a competitive basis to States selected from among those with applications meeting the requirements of subsection (c), in accordance with the provisions of this subsection. “(2) Selection and modification of state applications.—In selecting State applications for the awarding of such a grant, the Secretary—“(A) shall take into consideration the manner in which, and extent to which, the State proposes to achieve the objectives specified in subsection (a); “(B) shall seek to achieve an appropriate national balance in the numbers of eligible individuals, within different target groups of eligible individuals, who are assisted to transition to qualified residences under MFP demonstration projects, and in the geographic distribution of States operating MFP demonstration projects; “(C) shall give preference to State applications proposing—“(i) to provide transition assistance to eligible individuals within multiple target groups; and “(ii) to provide eligible individuals with the opportunity to receive home and community-based long-term care services as self-directed services, as defined in subsection (b)(8); and “(D) shall take such objectives into consideration in setting the annual amounts of State grant awards under this section. “(3) Waiver authority.—The Secretary is authorized to waive the following provisions of title XIX of the Social Security Act [42 U.S.C. 1396 et seq.], to the extent necessary to enable a State initiative to meet the requirements and accomplish the purposes of this section:“(A) Statewideness.—Section 1902(a)(1) [42 U.S.C. 1396a(a)(1)], in order to permit implementation of a State initiative in a selected area or areas of the State. “(B) Comparability.—Section 1902(a)(10)(B), in order to permit a State initiative to assist a selected category or categories of individuals described in subsection (b)(2)(A). “(C) Income and resources eligibility.—Section 1902(a)(10)(C)(i)(III), in order to permit a State to apply institutional eligibility rules to individuals transitioning to community-based care. “(D) Provider agreements.—Section 1902(a)(27), in order to permit a State to implement self-directed services in a cost-effective manner. “(4) Conditional approval of outyear grant.—In awarding grants under this section, the Secretary shall condition the grant for the second and any subsequent fiscal years of the grant period on the following:“(A) Numerical benchmarks.—The State must demonstrate to the satisfaction of the Secretary that it is meeting numerical benchmarks specified in the grant agreement for—“(i) increasing State Medicaid support for home and community-based long-term care services under subsection (c)(5); and “(ii) numbers of eligible individuals assisted to transition to qualified residences. “(B) Quality of care.—The State must demonstrate to the satisfaction of the Secretary that it is meeting the requirements under subsection (c)(11) to assure the health and welfare of MFP demonstration project participants. “(C) Corrective action plan progress.—In the case of a State required to implement a corrective action plan under subparagraph (C) of subsection (c)(13), the State must implement such plan and demonstrate progress in reporting information under subparagraph (B) of such subsection or progress under the approved work plan (as applicable). “(e) Payments to States; Carryover of Unused Grant Amounts.—“(1) Payments.—For each calendar quarter in a fiscal year during the period a State is awarded a grant under subsection (d), the Secretary shall pay to the State from its grant award for such fiscal year an amount equal to the lesser of—“(A) the MFP-enhanced FMAP (as defined in paragraph (5)) of the amount of qualified expenditures made during such quarter; or “(B) the total amount remaining in such grant award for such fiscal year (taking into account the application of paragraph (2)). “(2) Carryover of unused amounts.—Any portion of a State grant award for a fiscal year under this section remaining at the end of such fiscal year shall remain available to the State for the next 4 fiscal years, subject to paragraph (3). Any portion of a State grant award for a fiscal year under this section that is unexpended by the State at the end of the fourth succeeding fiscal year shall be rescinded by the Secretary and added to the appropriation for the fifth succeeding fiscal year. “(3) Reawarding of certain unused amounts.—In the case of a State that the Secretary determines pursuant to subsection (d)(4) has failed to meet the conditions for continuation of a MFP demonstration project under this section in a succeeding year or years, the Secretary shall rescind the grant awards for such succeeding year or years, together with any unspent portion of an award for prior years, and shall add such amounts to the appropriation for the immediately succeeding fiscal year for grants under this section. “(4) Preventing duplication of payment.—The payment under a MFP demonstration project with respect to qualified expenditures shall be in lieu of any payment with respect to such expenditures that could otherwise be paid under Medicaid, including under section 1903(a) of the Social Security Act [42 U.S.C. 1396b(a)]. Nothing in the previous sentence shall be construed as preventing the payment under Medicaid for such expenditures in a grant year after amounts available to pay for such expenditures under the MFP demonstration project have been exhausted. “(5) MFP-enhanced fmap.—For purposes of paragraph (1)(A), the ‘MFP-enhanced FMAP’, for a State for a fiscal year, is equal to the Federal medical assistance percentage (as defined in the first sentence of section 1905(b) [42 U.S.C. 1396d(b)]) for the State increased by a number of percentage points equal to 50 percent of the number of percentage points by which (A) such Federal medical assistance percentage for the State, is less than (B) 100 percent; but in no case shall the MFP-enhanced FMAP for a State exceed 90 percent. “(f) Quality Assurance and Improvement; Technical Assistance; Oversight.—“(1) In general.—The Secretary, either directly or by grant or contract, shall provide for technical assistance to, and oversight of, States for purposes of upgrading quality assurance and quality improvement systems under Medicaid home and community-based waivers, including—“(A) dissemination of information on promising practices; “(B) guidance on system design elements addressing the unique needs of participating beneficiaries; “(C) ongoing consultation on quality, including assistance in developing necessary tools, resources, and monitoring systems; and “(D) guidance on remedying programmatic and systemic problems. “(2) Funding.—From the amounts appropriated under subsection (h)(1), $3,000,000 shall be available to the Secretary to carry out this subsection. Such amount shall remain available until expended. “(g) Research and Evaluation.—“(1) In general.—The Secretary, directly or through grant or contract, shall provide for research on, and a national evaluation of, the program under this section, including assistance to the Secretary in preparing the final report required under paragraph (2). The evaluation shall include an analysis of projected and actual savings related to the transition of individuals to qualified residences in each State conducting an MFP demonstration project. “(2) Final report.—The Secretary shall make a final report to the President and Congress, not later than September 30, 2026, reflecting the evaluation described in paragraph (1) and providing findings and conclusions on the conduct and effectiveness of MFP demonstration projects. “(3) Funding.—From the amounts appropriated under subsection (h)(1) for each of fiscal years 2008 through 2016, and for each of fiscal years 2021 through 2023[,] not more than $1,100,000 per year shall be available to the Secretary to carry out this subsection. “(h) Appropriations.—“(1) In general.—There are appropriated, from any funds in the Treasury not otherwise appropriated, for grants to carry out this section—“(A) $250,000,000 for the portion of fiscal year 2007 beginning on January 1, 2007, and ending on September 30, 2007; “(B) $300,000,000 for fiscal year 2008; “(C) $350,000,000 for fiscal year 2009; “(D) $400,000,000 for fiscal year 2010; “(E) $450,000,000 for each of fiscal years 2011 through 2016; “(F) $254,500,000 for fiscal year 2019; “(G) $337,500,000 for the period beginning on January 1, 2020, and ending on September 30, 2020; “(H) for the period beginning on October 1, 2020, and ending on December 18, 2020, the amount equal to the pro rata portion of the amount appropriated for such period for fiscal year 2020; “(I) for the period beginning on December 19, 2020, and ending on September 30, 2021, the amount equal to the pro rata portion of an annual appropriation of $450,000,000; “(J) $450,000,000 for fiscal year 2022; “(K) $450,000,000 for fiscal year 2023; and “(L) $450,000,000 for each of fiscal years 2024 through 2027. “(2) Availability.—Amounts made available under paragraph (1) for a fiscal year shall remain available for the awarding of grants to States by not later than September 30 of the subsequent fiscal year. “(3) Technical assistance.—In addition to amounts otherwise available, there is appropriated to the Secretary, out of any money in the Treasury not otherwise appropriated for fiscal 2023 and for each subsequent 3-year period through fiscal year 2029, $5,000,000, to remain available until expended, for carrying out subsections (f) and (g). “(i) Best Practices.—“(1) Report.—The Secretary, directly or through grant or contract, shall submit a report to the President and Congress not later than September 30, 2022, that contains findings and conclusions on best practices from MFP demonstration projects carried out with grants made under this section. The report shall include information and analyses with respect to the following:“(A) The most effective State strategies for transitioning beneficiaries from institutional to qualified community settings carried out under MFP demonstration projects and how such strategies may vary for different types of beneficiaries, such as beneficiaries who are aged, physically disabled, intellectually or developmentally disabled, or individuals with serious mental illnesses, and other targeted waiver beneficiary populations under section 1915(c) of the Social Security Act [42 U.S.C. 1396n(c)]. “(B) The most common and the most effective State uses of grant funds carried out under demonstration projects for transitioning beneficiaries from institutional to qualified community settings and improving health outcomes, including differentiating funding for current initiatives that are designed for such purpose and funding for proposed initiatives that are designed for such purpose. “(C) The most effective State approaches carried out under MFP demonstration projects for improving person-centered care and planning. “(D) Identification of program, financing, and other flexibilities available under MFP demonstration projects, that are not available under the traditional Medicaid program, and which directly contributed to successful transitions and improved health outcomes under MFP demonstration projects. “(E) State strategies and financing mechanisms for effective coordination of housing financed or supported under MFP demonstration projects with local housing authorities and other resources. “(F) Effective State approaches for delivering Money Follows the Person transition services through managed care entities. “(G) Other best practices and effective transition strategies demonstrated by States with approved MFP demonstration projects, as determined by the Secretary. “(H) Identification and analyses of opportunities and challenges to integrating effective Money Follows the Person practices and State strategies into the traditional Medicaid program. “(2) Collaboration.—In preparing the report required under this subsection, the Secretary shall collect and incorporate information from States with approved MFP demonstration projects and beneficiaries participating in such projects, and providers participating in such projects. “(3) Waiver of paperwork reduction act.—Chapter 35 of title 44, United States Code, shall not apply to preparation of the report described in paragraph (1) or collection of information described in paragraph (2). “(4) Funding.—From the amounts appropriated under subsection (h)(1) for each of fiscal years 2021 and 2022, not more than $300,000 shall be available to the Secretary for each such fiscal year to carry out this subsection. “(j) MACPAC Report.—Prior to the final implementation date established by the Secretary for the criteria established for home and community-based settings in section 441.301(c)(4) of title 42, Code of Federal Regulations, as part of final implementation of the Home and Community Based Services (HCBS) Final Rule published on January 16, 2014 (79 Fed. Reg. 2947) (referred to in this subsection as the ‘HCBS final rule’), the Medicaid and CHIP Payment and Access Commission (MACPAC) shall submit to Congress a report that—“(1) identifies the types of home and community-based settings and associated services that are available to eligible individuals in both the MFP demonstration program and sites in compliance with the HCBS final rule; and “(2) if determined appropriate by the Commission, recommends policies to align the criteria for a qualified residence under subsection (b)(6) (as in effect on October 1, 2017) with the criteria in the HCBS final rule.”

[Pub. L. 116–260, div. CC, title II, § 204(b)(2), Dec. 27, 2020, 134 Stat. 2980, provided that: “The amendments made by paragraph (1) [amending section 6071 of Pub. L. 109–171, set out above] shall take effect on the date that is 30 days after the date of the enactment of this Act [Dec. 27, 2020].” ]

[Pub. L. 116–39, § 4, Aug. 6, 2019, 133 Stat. 1061, which directed amendment of section 6071(h)(1)(F) of Pub. L. 109–171, set out above, by substituting “$254,500,000” for “$132,000,000”, was executed by making the substitution for “132,000,000” to reflect the probable intent of Congress and the amendment by section 5 of Pub. L. 116–16, which struck out the dollar sign.]

[Pub. L. 111–148, title II, § 2403(b)(2), Mar. 23, 2010, 124 Stat. 305, provided that: “The amendments made by this subsection [amending section 6071 of Pub. L. 109–171, set out above] take effect 30 days after the date of enactment of this Act [Mar. 23, 2010].” ]

Study Regarding Barriers to Participation of Farmworkers in Health Programs

Pub. L. 107–251, title IV, § 404, Oct. 26, 2002, 116 Stat. 1662, as amended by Pub. L. 108–163, § 2(n)(1), Dec. 6, 2003, 117 Stat. 2023, provided that: “(a) In General.—The Secretary shall conduct a study of the problems experienced by farmworkers (including their families) under Medicaid and SCHIP. Specifically, the Secretary shall examine the following:“(1) Barriers to enrollment.—Barriers to their enrollment, including a lack of outreach and outstationed eligibility workers, complicated applications and eligibility determination procedures, and linguistic and cultural barriers. “(2) Lack of portability.—The lack of portability of Medicaid and SCHIP coverage for farmworkers who are determined eligible in one State but who move to other States on a seasonal or other periodic basis. “(3) Possible solutions.—The development of possible solutions to increase enrollment and access to benefits for farmworkers, because, in part, of the problems identified in paragraphs (1) and (2), and the associated costs of each of the possible solutions described in subsection (b). “(b) Possible Solutions.—Possible solutions to be examined shall include each of the following:“(1) Interstate compacts.—The use of interstate compacts among States that establish portability and reciprocity for eligibility for farmworkers under the Medicaid and SCHIP and potential financial incentives for States to enter into such compacts. “(2) Demonstration projects.—The use of multi-state demonstration waiver projects under section 1115 of the Social Security Act (42 U.S.C. 1315) to develop comprehensive migrant coverage demonstration projects. “(3) Use of current law flexibility.—Use of current law Medicaid and SCHIP State plan provisions relating to coverage of residents and out-of-State coverage. “(4) National migrant family coverage.—The development of programs of national migrant family coverage in which States could participate. “(5) Public-private partnerships.—The provision of incentives for development of public-private partnerships to develop private coverage alternatives for farmworkers. “(6) Other possible solutions.—Such other solutions as the Secretary deems appropriate. “(c) Consultations.—In conducting the study, the Secretary shall consult with the following:“(1) Farmworkers affected by the lack of portability of coverage under the Medicaid program or the State children’s health insurance program (under titles XIX and XXI of the Social Security Act [42 U.S.C. 1396 et seq., 1397aa et seq.]). “(2) Individuals with expertise in providing health care to farmworkers, including designees of national and local organizations representing migrant health centers and other providers. “(3) Resources with expertise in health care financing. “(4) Representatives of foundations and other nonprofit entities that have conducted or supported research on farmworker health care financial issues. “(5) Representatives of Federal agencies which are involved in the provision or financing of health care to farmworkers, including the Centers for Medicare & Medicaid Services and the Health Resources and Services Administration. “(6) Representatives of State governments. “(7) Representatives from the farm and agricultural industries. “(8) Designees of labor organizations representing farmworkers. “(d) Definitions.—For purposes of this section:“(1) Farmworker.—The term ‘farmworker’ means a migratory agricultural worker or seasonal agricultural worker, as such terms are defined in section 330(g)(3) of the Public Health Service Act (42 U.S.C. 254c(g)(3) [254b(g)(3)]), and includes a family member of such a worker. “(2) Medicaid.—The term ‘Medicaid’ means the program under title XIX of the Social Security Act [42 U.S.C. 1396 et seq.]. “(3) SCHIP.—The term ‘SCHIP’ means the State children’s health insurance program under title XXI of the Social Security Act [42 U.S.C. 1397aa et seq.]. “(e) Report.—Not later than one year after the date of the enactment of this Act [Oct. 26, 2002], the Secretary shall transmit a report to the President and the Congress on the study conducted under this section. The report shall contain a detailed statement of findings and conclusions of the study, together with its recommendations for such legislation and administrative actions as the Secretary considers appropriate.”

Study on Limitation on State Payment for Medicare Cost-Sharing Affecting Access to Services for Qualified Medicare Beneficiaries

Pub. L. 106–554, § 1(a)(6) [title I, § 125], Dec. 21, 2000, 114 Stat. 2763, 2763A–479, provided that: “(a) In General.—The Secretary of Health and Human Services shall conduct a study to determine if access to certain services (including mental health services) for qualified medicare beneficiaries has been affected by limitations on a State’s payment for medicare cost-sharing for such beneficiaries under section 1902(n) of the Social Security Act (42 U.S.C. 1396a(n)). As part of such study, the Secretary shall analyze the effect of such payment limitation on providers who serve a disproportionate share of such beneficiaries. “(b) Report.—Not later than 1 year after the date of the enactment of this Act [Dec. 21, 2000], the Secretary shall submit to Congress a report on the study under subsection (a). The report shall include recommendations regarding any changes that should be made to the State payment limits under section 1902(n) for qualified medicare beneficiaries to ensure appropriate access to services.”

GAO Study of Future Rebasing

Pub. L. 106–554, § 1(a)(6) [title VII, § 702(d)], Dec. 21, 2000, 114 Stat. 2763, 2763A–574, provided that: “The Comptroller General of the United States shall provide for a study on the need for, and how to, rebase or refine costs for making payment under the medicaid program for services provided by Federally-qualified health centers and rural health clinics (as provided under the amendments made by this section [amending this section and sections 1396b and 1396n of this title and repealing provisions set out as a note under this section]). The Comptroller General shall provide for submittal of a report on such study to Congress by not later than 4 years after the date of the enactment of this Act [Dec. 21, 2000].”

GAO Reports

Pub. L. 106–170, title II, § 201(c), Dec. 17, 1999, 113 Stat. 1893, provided that: “Not later than 3 years after the date of the enactment of this Act [Dec. 17, 1999], the Comptroller General of the United States shall submit a report to the Congress regarding the amendments made by this section [amending this section and sections 1396b, 1396d, and 1396o of this title] that examines— “(1) the extent to which higher health care costs for individuals with disabilities at higher income levels deter employment or progress in employment; “(2) whether such individuals have health insurance coverage or could benefit from the State option established under such amendments to provide a medicaid buy-in; and “(3) how the States are exercising such option, including—“(A) how such States are exercising the flexibility afforded them with regard to income disregards; “(B) what income and premium levels have been set; “(C) the degree to which States are subsidizing premiums above the dollar amount specified in section 1916(g)(2) of the Social Security Act (42 U.S.C. 1396o(g)(2)); and “(D) the extent to which there exists any crowd-out effect.”

Pub. L. 106–113, div. B, § 1000(a)(6) [title VI, § 603(b)], Nov. 29, 1999, 113 Stat. 1536, 1501A–395, provided that: “Not later than 1 year after the date of the enactment of this Act [Nov. 29, 1999], the Comptroller General of the United States shall submit a report to Congress that evaluates the effect on Federally-qualified health centers and rural health clinics and on the populations served by such centers and clinics of the phase-out and elimination of the reasonable cost basis for payment for Federally-qualified health center services and rural health clinic services provided under section 1902(a)(13)(C)(i) of the Social Security Act (42 U.S.C. 1396a(a)(13)(C)(i)), as amended by section 4712 of BBA (111 Stat. 508) [the Balanced Budget Act of 1997, Pub. L. 105–33] and subsection (a) of this section. Such report shall include an analysis of the amount, method, and impact of payments made by States that have provided for payment under title XIX of such Act [42 U.S.C. 1396 et seq.] for such services on a basis other than payment of costs which are reasonable and related to the cost of furnishing such services, together with any recommendations for legislation, including whether a new payment system is needed, that the Comptroller General determines to be appropriate as a result of the study.”

Demonstration of Coverage Under the Medicaid Program of Workers With Potentially Severe Disabilities

Pub. L. 106–170, title II, § 204, Dec. 17, 1999, 113 Stat. 1897, provided that: “(a) State Application.—A State may apply to the Secretary of Health and Human Services (in this section referred to as the ‘Secretary’) for approval of a demonstration project (in this section referred to as a ‘demonstration project’) under which up to a specified maximum number of individuals who are workers with a potentially severe disability (as defined in subsection (b)(1)) are provided medical assistance equal to—“(1) that provided under section 1905(a) of the Social Security Act (42 U.S.C. 1396d(a)) to individuals described in section 1902(a)(10)(A)(ii)(XIII) of that Act (42 U.S.C. 1396a(a)(10)(A)(ii)(XIII)); or “(2) in the case of a State that has not elected to provide medical assistance under that section to such individuals, such medical assistance as the Secretary determines is an appropriate equivalent to the medical assistance described in paragraph (1). “(b) Worker With a Potentially Severe Disability Defined.—For purposes of this section—“(1) In general.—The term ‘worker with a potentially severe disability’ means, with respect to a demonstration project, an individual who—“(A) is at least 16, but less than 65, years of age; “(B) has a specific physical or mental impairment that, as defined by the State under the demonstration project, is reasonably expected, but for the receipt of items and services described in section 1905(a) of the Social Security Act (42 U.S.C. 1396d(a)), to become blind or disabled (as defined under section 1614(a) of the Social Security Act (42 U.S.C. 1382c(a))); and “(C) is employed (as defined in paragraph (2)). “(2) Definition of employed.—An individual is considered to be ‘employed’ if the individual—“(A) is earning at least the applicable minimum wage requirement under section 6 of the Fair Labor Standards Act (29 U.S.C. 206) and working at least 40 hours per month; or “(B) is engaged in a work effort that meets substantial and reasonable threshold criteria for hours of work, wages, or other measures, as defined under the demonstration project and approved by the Secretary. “(c) Approval of Demonstration Projects.—“(1) In general.—Subject to paragraph (3), the Secretary shall approve applications under subsection (a) that meet the requirements of paragraph (2) and such additional terms and conditions as the Secretary may require. The Secretary may waive the requirement of section 1902(a)(1) of the Social Security Act (42 U.S.C. 1396a(a)(1)) to allow for sub-State demonstrations. “(2) Terms and conditions of demonstration projects.—The Secretary may not approve a demonstration project under this section unless the State provides assurances satisfactory to the Secretary that the following conditions are or will be met:“(A) Maintenance of state effort.—Federal funds paid to a State pursuant to this section must be used to supplement, but not supplant, the level of State funds expended for workers with potentially severe disabilities under programs in effect for such individuals at the time the demonstration project is approved under this section. “(B) Independent evaluation.—The State provides for an independent evaluation of the project. “(3) Limitations on federal funding.—“(A) Appropriation.—“(i) In general.—Out of any funds in the Treasury not otherwise appropriated, there is appropriated to carry out this section— “(I) $42,000,000 for each of fiscal years 2001 through 2004; and “(II) $41,000,000 for each of fiscal years 2005 and 2006. “(ii) Budget authority.—Clause (i) constitutes budget authority in advance of appropriations Acts and represents the obligation of the Federal Government to provide for the payment of the amounts appropriated under clause (i). “(B) Limitation on payments.—In no case may—“(i) the aggregate amount of payments made by the Secretary to States under this section exceed $250,000,000; “(ii) the aggregate amount of payments made by the Secretary to States for administrative expenses relating to annual reports required under subsection (d) exceed $2,000,000 of such $250,000,000; or “(iii) payments be provided by the Secretary for a fiscal year after fiscal year 2009. “(C) Funds allocated to states.—The Secretary shall allocate funds to States based on their applications and the availability of funds. Funds allocated to a State under a grant made under this section for a fiscal year shall remain available until expended. “(D) Funds not allocated to States.—Funds not allocated to States in the fiscal year for which they are appropriated shall remain available in succeeding fiscal years for allocation by the Secretary using the allocation formula established under this section. “(E) Payments to States.—The Secretary shall pay to each State with a demonstration project approved under this section, from its allocation under subparagraph (C), an amount for each quarter equal to the Federal medical assistance percentage (as defined in section 1905(b) of the Social Security Act (42 U.S.C. 1395d(b) [42 U.S.C. 1396d(b)]) of expenditures in the quarter for medical assistance provided to workers with a potentially severe disability. “(d) Annual Report.—A State with a demonstration project approved under this section shall submit an annual report to the Secretary on the use of funds provided under the grant. Each report shall include enrollment and financial statistics on—“(1) the total population of workers with potentially severe disabilities served by the demonstration project; and “(2) each population of such workers with a specific physical or mental impairment described in subsection (b)(1)(B) served by such project. “(e) Recommendation.—Not later than October 1, 2004, the Secretary shall submit a recommendation to the Committee on Commerce [now Committee on Energy and Commerce] of the House of Representatives and the Committee on Finance of the Senate regarding whether the demonstration project established under this section should be continued after fiscal year 2006. “(f) State Defined.—In this section, 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.).”

Medical Assistance Payments for Eligible PACE Program Enrollees

Pub. L. 105–277, div. A, § 101(f) [title VII, § 710], Oct. 21, 1998, 112 Stat. 2681–337, 2681–391, provided that: “For purposes of payments to States for medical assistance under title XIX of the Social Security Act [42 U.S.C. 1396 et seq.] from amounts appropriated to carry out such title for fiscal year 1999 and for any subsequent fiscal year, individuals who are PACE program eligible individuals under section 1934 of that Act [42 U.S.C. 1396u–4] and who meet the income and resource eligibility requirements of individuals who are eligible for medical assistance under section 1902(a)(10)(A)(ii)(VI) of that Act [42 U.S.C. 1396a(a)(10)(A)(ii)(VI)] shall be treated as individuals described in such section 1902(a)(10)(A)(ii)(VI) during the period of their enrollment in the PACE program.”

Study and Report by Secretary of Health and Human Services

Pub. L. 105–33, title IV, § 4711(b), Aug. 5, 1997, 111 Stat. 508, provided that: “(1) Study.—The Secretary of Health and Human Services shall study the effect on access to, and the quality of, services provided to beneficiaries of the rate-setting methods used by States pursuant to section 1902(a)(13)(A) of the Social Security Act (42 U.S.C. 1396a(a)(13)(A)), as amended by subsection (a). “(2) Report.—Not later than 4 years after the date of the enactment of this Act [Aug. 5, 1997], the Secretary of Health and Human Services shall submit a report to the appropriate committees of Congress on the conclusions of the study conducted under paragraph (1), together with any recommendations for legislation as a result of such conclusions.”

Dual Eligibles; Monitoring Payments

Pub. L. 105–33, title IV, § 4724(e), Aug. 5, 1997, 111 Stat. 517, provided that: “The Administrator of the Health Care Financing Administration shall develop mechanisms to improve the monitoring of, and to prevent, inappropriate payments under the medicaid program under title XIX of the Social Security Act (42 U.S.C. 1396 et seq.) in the case of individuals who are dually eligible for benefits under such program and under the medicare program under title XVIII of such Act (42 U.S.C. 1395 et seq.).”

Extension of Effective Date for State Law Amendment

Pub. L. 105–33, title IV, § 4759, Aug. 5, 1997, 111 Stat. 528, provided that: “In the case of a State plan under title XIX of the Social Security Act [42 U.S.C. 1396 et seq.] which the Secretary of Health and Human Services determines requires State legislation in order for the plan to meet the additional requirements imposed by the amendments made by a provision of this subtitle [subtitle H (§§ 4701–4759) of title IV of Pub. L. 105–33, enacting sections 1396u–2 and 1396u–3 of this title, amending this section and sections 1308, 1315, 1320a–3, 1320a–7b, 1395i–3, 1395w–4, 1395cc, 1396b, 1396d, 1396e, 1396n, 1396o, 1396r, 1396r–4, 1396r–6, 1396r–8, 1396u–2, and 1396v of this title, and repealing section 1396r–7 of this title], the State plan shall not be regarded as failing to comply with the requirements of such title solely on the basis of its failure to meet these additional requirements before the first day of the first calendar quarter beginning after the close of the first regular session of the State legislature that begins after the date of the enactment of this Act [Aug. 5, 1997]. For purposes of the previous sentence, in the case of a State that has a 2-year legislative session, each year of the session is considered to be a separate regular session of the State legislature.”

References to Provisions of Part A of Subchapter IV Considered References to Such Provisions as in Effect July 16, 1996

For provisions that certain references to provisions of part A (§ 601 et seq.) of subchapter IV of this chapter be considered references to such provisions of part A as in effect July 16, 1996, see section 1396u–1(a) of this title.

Demonstration Projects To Study Effect of Allowing States To Extend Medicaid Coverage to Certain Low-Income Families Not Otherwise Qualified To Receive Medicaid Benefits

Pub. L. 101–508, title IV, § 4745, Nov. 5, 1990, 104 Stat. 1388–199, as amended by Pub. L. 103–66, title XIII, § 13643(a), Aug. 10, 1993, 107 Stat. 647, provided that: “(a) Demonstration Projects.—“(1) In general.—(A) The Secretary of Health and Human Services (hereafter in this section referred to as the ‘Secretary’) shall enter into agreements with 3 and no more than 4 States submitting applications under this section for the purpose of conducting demonstration projects to study the effect on access to, and costs of, health care of eliminating the categorical eligibility requirement for medicaid benefits for certain low-income individuals. “(B) In entering into agreements with States under this section the Secretary shall provide that at least 1 and no more than 2 of the projects are conducted on a substate basis. “(2) Requirements.—(A) The Secretary may not enter into an agreement with a State to conduct a project unless the Secretary determines that—“(i) the project can reasonably be expected to improve access to health insurance coverage for the uninsured; “(ii) with respect to projects for which the statewideness requirement has not been waived, the State provides, under its plan under title XIX of the Social Security Act [42 U.S.C. 1396 et seq.], for eligibility for medical assistance for all individuals described in subparagraphs (A), (B), (C), and (D) of paragraph (1) of section 1902(l) of such Act [42 U.S.C. 1396a(l)(1)(A), (B), (C), (D)] (based on the State’s election of certain eligibility options the highest income standards and, based on the State’s waiver of the application of any resource standard); “(iii) eligibility for benefits under the project is limited to individuals in families with income below 150 percent of the income official poverty line and who are not individuals receiving benefits under title XIX of the Social Security Act; “(iv) if the Secretary determines that it is cost-effective for the project to utilize employer coverage (as described in section 1925(b)(4)(D) of the Social Security Act [42 U.S.C. 1396r–6(b)(4)(D)]), the project must require an employer contribution and benefits under the State plan under title XIX of such Act will continue to be made available to the extent they are not available under the employer coverage; “(v) the project provides for coverage of benefits consistent with subsection (b); and “(vi) the project only imposes premiums, coinsurance, and other cost-sharing consistent with subsection (c). “(B) The Secretary may waive the requirements of clause (ii) of this paragraph [probably means subparagraph (A)] with respect to those projects described in subparagraph (B) of paragraph (1). “(3) Permissible restrictions.—A project may limit eligibility to individuals whose assets are valued below a level specified by the State. For this purpose, any evaluation of such assets shall be made in a manner consistent with the standards for valuation of assets under the State plan under title XIX of the Social Security Act for individuals entitled to assistance under part A of title IV of such Act [42 U.S.C. 601 et seq.]. Nothing in this section shall be construed as requiring a State to provide for eligibility for individuals for months before the month in which such eligibility is first established. “(4) Extension of eligibility.—A project may provide for extension of eligibility for medical assistance for individuals covered under the project in a manner similar to that provided under section 1925 of the Social Security Act to certain families receiving aid pursuant to a plan of the State approved under part A of title IV of such Act. “(5) Waiver of requirements.—“(A) In general.—Subject to subparagraph (B), the Secretary may waive such requirements of title XIX of the Social Security Act (except section 1903(m) of the Social Security Act [42 U.S.C. 1396b(m)]) as may be required to provide for additional coverage of individuals under projects under this section. “(B) Nonwaivable provisions.—Except with respect to those projects described in subparagraph (B) of paragraph (1), the Secretary may not waive, under subparagraph (A), the statewideness requirement of section 1902(a)(1) of the Social Security Act [42 U.S.C. 1396a(a)(1)] or the Federal medical assistance percentage specified in section 1905(b) of such Act [42 U.S.C. 1396d(b)]. “(b) Benefits.—“(1) In general.—Except as provided in this subsection, the amount, duration, and scope of medical assistance made available under a project shall be the same as the amount, duration, and scope of such assistance made available to individuals entitled to medical assistance under the State plan under section 1902(a)(10)(A)(i) of the Social Security Act [42 U.S.C. 1396a(a)(10)(A)(i)]. “(2) Limits on benefits.—“(A) Required.—Except with respect to those projects described in subparagraph (B) of paragraph (1), no medical assistance shall be made available under a project for nursing facility services or community-based long-term care services (as defined by the Secretary) or for pregnancy-related services. No medical assistance shall be made available under a project to individuals confined to a State correctional facility, county jail, local or county detention center, or other State institution. “(B) Permissible.—A State, with the approval of the Secretary, may limit or otherwise deny eligibility for medical assistance under the project and may limit coverage of items and services under the project, other than early and periodic screening, diagnostic, and treatment services for children under 18 years of age. “(3) Use of utilization controls.—Nothing in this subsection shall be construed as limiting a State’s authority to impose controls over utilization of services, including preadmission requirements, managed care provisions, use of preferred providers, and use of second opinions before surgical procedures. “(c) Premiums and Cost-Sharing.—“(1) None for those with income below the poverty line.—Under a project, there shall be no premiums, coinsurance, or other cost-sharing for individuals whose family income level does not exceed 100 percent of the income official poverty line (as defined in subsection (g)(1)) applicable to a family of the size involved. “(2) Limit for those with income above the poverty line.—Under a project, for individuals whose family income level exceeds 100 percent, but is less than 150 percent, of the income official poverty line applicable to a family of the size involved, the monthly average amount of premiums, coinsurance, and other cost-sharing for covered items and services shall not exceed 3 percent of the family’s average gross monthly earnings. “(3) Income determination.—Each project shall provide for determinations of income in a manner consistent with the methodology used for determinations of income under title XIX of the Social Security Act [42 U.S.C. 1396 et seq.] for individuals entitled to benefits under part A of title IV of such Act [42 U.S.C. 601 et seq.]. “(d) Duration.—Each project under this section shall commence not later than July 1, 1991 and shall be conducted for a 3-year period; except that the Secretary may terminate such a project if the Secretary determines that the project is not in substantial compliance with the requirements of this section. “(e) Limits on Expenditures and Funding.—“(1) In general.—(A) The Secretary in conducting projects shall limit the total amount of the Federal share of benefits paid and expenses incurred under title XIX of the Social Security Act [42 U.S.C. 1396 et seq.] to no more than $40,000,000. “(B) Of the amounts appropriated under subparagraph (A), the Secretary shall provide that no more than one-third of such amounts shall be used to carry out the projects described in paragraph (1)(B) of subsection (a) (for which the statewideness requirement has been waived). “(2) No funding of current beneficiaries.—No funding shall be available under a project with respect to medical assistance provided to individuals who are otherwise eligible for medical assistance under the plan without regard to the project. “(3) No increase in federal medical assistance percentage.—Payments to a State under a project with respect to expenditures made for medical assistance made available under the project may not exceed the Federal medical assistance percentage (as defined in section 1905(b) of the Social Security Act [42 U.S.C. 1396d(b)]) of such expenditures. “(f) Evaluation and Report.—“(1) Evaluations.—For each project the Secretary shall provide for an evaluation to determine the effect of the project with respect to—“(A) access to, and costs of, health care, “(B) private health care insurance coverage, and “(C) premiums and cost-sharing. “(2) Reports.—The Secretary shall prepare and submit to Congress an interim report on the status of the projects not later than January 1, 1993, and a final report containing such summary together with such further recommendations as the Secretary may determine appropriate not later than one year after the termination of the projects. “(g) Definitions.—In this section:“(1) The term ‘income official poverty line’ means such line as defined by the Office of Management and Budget and revised annually in accordance with section 673(2) of the Omnibus Budget Reconciliation Act of 1981 [42 U.S.C. 9902(2)]. “(2) The term ‘project’ refers to a demonstration project under subsection (a).”

[Pub. L. 103–66, title XIII, § 13643(a), Aug. 10, 1993, 107 Stat. 647, provided in part that the amendment made by that section to section 4745 of Pub. L. 101–508, set out above, is effective as if included in enactment of Pub. L. 101–508.]

Demonstration Project To Provide Medicaid Coverage for HIV-Positive Individuals

Pub. L. 101–508, title IV, § 4747, Nov. 5, 1990, 104 Stat. 1388–202, provided that: “(a) In General.—Not later than 3 months after the date of the enactment of this Act [Nov. 5, 1990], the Secretary of Health and Human Services (hereafter in this section referred to as the ‘Secretary’) shall provide for 2 demonstration projects to be administered by States that submit an application under this section, through programs administered by the States under title XIX of the Social Security Act [42 U.S.C. 1396 et seq.]. Such demonstration projects shall provide coverage for the services described in subsection (c) to individuals whose income and resources do not exceed the maximum allowable amount for eligibility for any individual in any category of disability under the State plan under section 1902 of the Social Security Act [42 U.S.C. 1396a], and who have tested positive for the presence of HIV virus (without regard to the presence of any symptoms of AIDS or opportunistic diseases related to AIDS). “(b) Services Available Under a Demonstration Project.—(1) The medical assistance made available to individuals described in section 1902(a)(10)(A) of the Social Security Act [42 U.S.C. 1396a(a)(10)(A)] shall be made available to individuals described in subsection (a) who receive services under a demonstration project under such paragraph. “(2) A demonstration project under subsection (a) shall provide services in addition to the services described in paragraph (1) which shall be limited only on the basis of medical necessity or the appropriateness of such services. To the extent not provided as described in paragraph (1), such additional services shall include—“(A) general and preventative medical care services (including inpatient, outpatient, residential care, physician visits, clinic visits, and hospice care); “(B) prescription drugs, including drugs for the purposes of preventative health care services; “(C) counseling and social services; “(D) substance abuse treatment services (including services for multiple substances abusers); “(E) home care services (including assistance in carrying out activities of daily living); “(F) case management; “(G) health education services; “(H) respite care for caregivers; “(I) dental services; and “(J) diagnostic and laboratory services[.] “(c) Agreements With States.—(1) Each State conducting a demonstration project under subsection (a) shall enter into an agreement with a hospital and at least one other nonprofit organization submitting applications to the State. The State shall require that such hospital and other entity have a demonstrated record of case management of patients who have tested positive for the presence of HIV virus and have access to a control group of such type of patients who are not receiving State or Federal payments for medical services (or other payments from private insurance coverage) before developing symptoms of AIDS. Under such agreement, the State shall agree to pay each such entity for the services provided under subsection (b) and not later than 12 months after the commencement of a demonstration project, institute a system of monthly payment to each such entity based on the average per capita cost of the services described in subsection (c) provided to individuals described in paragraphs (1) and (2) of subsection (a). “(2) A demonstration project described in subsection (a) shall be limited to an enrollment of not more than 200 individuals. “(3) A demonstration project conducted under subsection (a) shall commence not later than 9 months after the date of the enactment of this Act [Nov. 5, 1990] and shall terminate on the date that is 3 years after the date of commencement. “(4)(A) The Secretary shall provide for an evaluation of the comparative costs of providing services to individuals who have tested positive for the presence of HIV virus at an early stage after detection of such virus and those that are treated at a later stage after such detection. “(B) The Secretary shall report to Congress on the results of the evaluation conducted under subparagraph (A) no later than 6 months after the date of termination of the demonstration projects described in this section. “(d) Federal Share of Costs.—The Federal share of the cost of services described in paragraph (3) furnished under a demonstration project conducted under paragraph (1) shall be determined by the otherwise applicable Federal matching assistance percentage pursuant to section 1905(b) of the Social Security Act [42 U.S.C. 1396d(b)]. “(e) Waiver of Requirements of the Social Security Act.—The Secretary may waive such requirements of the Social Security Act [42 U.S.C. 301 et seq.] as the Secretary determines to be necessary to carry out the purposes of this section. “(f) Limitation on Amount of Expenditures.—The amount of funds that may be expended as medical assistance to carry out the purposes of this section shall be $5,000,000 for fiscal year 1991, $12,000,000 for fiscal year 1992, and $13,000,000 for fiscal year 1993.”

Public Education Campaign

Pub. L. 101–508, title IV, § 4751(d), Nov. 5, 1990, 104 Stat. 1388–205, provided that: “(1) In general.—The Secretary, no later than 6 months after the date of enactment of this section [Nov. 5, 1990], shall develop and implement a national campaign to inform the public of the option to execute advance directives and of a patient’s right to participate and direct health care decisions. “(2) Development and distribution of information.—The Secretary shall develop or approve nationwide informational materials that would be distributed by providers under the requirements of this section [amending this section and sections 1396b and 1396r of this title and enacting provisions set out above], to inform the public and the medical and legal profession of each person’s right to make decisions concerning medical care, including the right to accept or refuse medical or surgical treatment, and the existence of advance directives. “(3) Providing assistance to states.—The Secretary shall assist appropriate State agencies, associations, or other private entities in developing the State-specific documents that would be distributed by providers under the requirements of this section. The Secretary shall further assist appropriate State agencies, associations, or other private entities in ensuring that providers are provided a copy of the documents that are to be distributed under the requirements of the section. “(4) Duties of secretary.—The Secretary shall mail information to Social Security recipients, [and] add a page to the medicare handbook with respect to the provisions of this section.”

Physician Identifier System; Deadline and Considerations

Pub. L. 101–508, title IV, § 4752(a)(1)(B), Nov. 5, 1990, 104 Stat. 1388–206, provided that: “The system established under the amendment made by subparagraph (A) [amending this section] may be the same as, or different from, the system established under section 9202(g) of the Consolidated Omnibus Budget Reconciliation Act of 1985 [Pub. L. 99–272, formerly set out in a note under section 1395ww of this title].”

Foreign Medical Graduate Certification

Pub. L. 101–508, title IV, § 4752(d), Nov. 5, 1990, 104 Stat. 1388–207, provided that: “(1) Passage of fmgems examination in order to obtain identifier.—The Secretary of Health and Human Service[s] shall provide, in the identifier system established under section 1902(x) of the Social Security Act [42 U.S.C. 1396a(x)], that no foreign medical graduate (as defined in section 1886(h)(5)(D) of such Act [42 U.S.C. 1395ww(h)(5)(D)]) shall be issued an identifier under such system unless the individual—“(A) has passed the FMGEMS examination (as defined in section 1886(h)(5)(E) of such Act); “(B) has previously received certification from, or has previously passed the examination of, the Educational Commission for Foreign Medical Graduates; or “(C) has held a license from 1 or more States continuously since 1958. “(2) Effective date.—Paragraph (1) shall apply with respect to issuance of an identifier applicable to services furnished on or after January 1, 1992.”

Exclusions in Determination of Income and Resources Under This Subchapter

Pub. L. 101–508, title XI, § 11115(c), Nov. 5, 1990, 104 Stat. 1388–415, provided that: “Pursuant to section 1902(a)(17) of the Social Security Act (42 U.S.C. 1396a(a)(17)), the Secretary of Health and Human Services shall promulgate regulations to exempt from any determination of income and resources (for the month of receipt and the following month) under title XIX of the Social Security Act [42 U.S.C. 1396 et seq.] any refund of Federal income taxes made to an individual by reason of section 32 of the Internal Revenue Code of 1986 [26 U.S.C. 32] (relating to earned income tax credit), and any payment made to an individual by an employer under [former] section 3507 of such Code [26 U.S.C. 3507] (relating to advance payment of earned income credit).”

Development of Model Applications for Medicaid Program

Pub. L. 101–239, title VI, § 6506(b), Dec. 19, 1989, 103 Stat. 2282, provided that: “(1) In general.—The Secretary of Health and Human Services shall, by not later than 1 year after the date of the enactment of this Act [Dec. 19, 1989], develop a model application form for use in applying for benefits under title XIX of the Social Security Act [42 U.S.C. 1396 et seq.] for individuals who are not receiving cash assistance under part A of title IV of the Social Security Act [42 U.S.C. 601 et seq.], and who are not institutionalized. In developing such model application form, the Secretary is not authorized to require that such form be adopted by States as part of their State medicaid plan. “(2) Dissemination of model form.—The Secretary shall provide for publication in the Federal Register of the model application form developed under paragraph (1), and shall send a copy of such form to each State agency responsible for administering a State medicaid plan.”

Clarification of Federal Financial Participation for Case-Management Services

Pub. L. 100–647, title VIII, § 8435, Nov. 10, 1988, 102 Stat. 3805, provided that: “The Secretary of Health and Human Services may not fail or refuse to approve an amendment to a State plan under title XIX of the Social Security Act [42 U.S.C. 1396 et seq.] that provides for coverage of case-management services described in section 1915(g)(2) of such Act [42 U.S.C. 1396n(g)(2)], or to deny payment to a State for such services under section 1903(a)(1) of such Act [42 U.S.C. 1396b(a)(1)] on the basis that a State is required to provide such services under State law or on the basis that the State had paid or is paying for such services from non-Federal funds before or after April 7, 1986. Nothing in this section shall be construed as requiring the Secretary to make payment to a State under section 1903(a)(1) of such Act for such case-management services which are provided without charge to the users of such services.”

Treatment of States Operating Under Demonstration Projects

Pub. L. 100–360, title III, § 301(g)(1), July 1, 1988, 102 Stat. 750, provided that: “In the case of any State which is providing medical assistance to its residents under a waiver granted under section 1115(a) of the Social Security Act [42 U.S.C. 1315(a)], the Secretary of Health and Human Services shall require the State to meet the requirement of section 1902(a)(10)(E) of the Social Security Act [42 U.S.C. 1396a(a)(10)(E)] in the same manner as the State would be required to meet such requirement if the State had in effect a plan approved under title XIX of such Act [42 U.S.C. 1396 et seq.].”

Adjustment in Medicaid Payment for Inpatient Hospital Services Furnished by Disproportionate Share Hospitals

Pub. L. 100–203, title IV, § 4112, Dec. 22, 1987, 101 Stat. 1330–148, which related to adjustment in medicaid payment for inpatient hospital services furnished by disproportionate share hospitals was amended by Pub. L. 100–360, title IV, § 411(k)(6)(A)–(B)(i), July 1, 1988, 102 Stat. 792, 793, and so amended, § 4112 enacts the provisions of former section 4112 as section 1396r–4 of this title and amends sections 1396b and 1396s of this title.

Amendment to State Plan To Provide Adjustment for Services Furnished During Fiscal Year 1990

Pub. L. 100–203, title IV, § 4211(b)(2), Dec. 22, 1987, 101 Stat. 1330–203, as amended by Pub. L. 101–508, title IV, § 4801(e)(1)(B), Nov. 5, 1990, 104 Stat. 1388–215, provided that: “A plan of a State under title XIX of the Social Security Act [42 U.S.C. 1396 et seq.] shall not be considered to have met the requirement of section 1902(a)(13)(A) of the Social Security Act [42 U.S.C. 1396a(a)(13)(A)] (as amended by paragraph (1)(A) of this subsection), as of the first day of a Federal fiscal year (beginning on or after October 1, 1990), unless the State has submitted to the Secretary of Health and Human Services, as of April 1 before the fiscal year, an amendment to such State plan to provide for an appropriate adjustment in payment amounts for nursing facility services furnished during the Federal fiscal year. Each such amendment shall include a detailed description of the specific methodology to be used in determining the appropriate adjustment in payment amounts for nursing facility services. The Secretary shall, not later than September 30 before the fiscal year concerned, review each such plan amendment for compliance with such requirement and by such date shall approve or disapprove each such amendment. If the Secretary disapproves such an amendment, the State shall immediately submit a revised amendment which meets such requirement. The absence of approval of such a plan amendment does not relieve the State or any nursing facility of any obligation or requirement under title XIX of the Social Security Act (as amended by this Act).”

Technical Assistance With Respect to Facilities That Take Into Account Case Mix of Residents

Pub. L. 100–203, title IV, § 4211(j), Dec. 22, 1987, 101 Stat. 1330–207, provided that: “The Secretary of Health and Human Services shall, upon request by a State, furnish technical assistance with respect to the development and implementation of reimbursement methods for nursing facilities that take into account the case mix of residents in the different facilities.”

State Utilization Review Systems

Pub. L. 99–509, title IX, § 9432, Oct. 21, 1986, 100 Stat. 2066, as amended by Pub. L. 100–203, title IV, § 4118(p)(11), as added by Pub. L. 100–360, title IV, § 411(k)(10)(M), July 1, 1988, 102 Stat. 797; Pub. L. 101–508, title IV, § 4755(b), Nov. 5, 1990, 104 Stat. 1388–210, provided that: “(a) In General.—(1) The Secretary of Health and Human Services (in this section referred to as the ‘Secretary’) may not publish final or interim final regulations requiring a State plan approved under title XIX of the Social Security Act [42 U.S.C. 1396 et seq.] to include a program requiring second surgical opinions or a program of inpatient hospital preadmission review. “(2) The Secretary may not, during the period beginning on the date of the enactment of the Omnibus Budget Reconciliation Act of 1990 [Nov. 5, 1990] and ending on the date that is 180 days after the date on which the report required by subsection (d) is submitted to the Congress, publish final or interim final regulations requiring a State plan approved under title XIX of the Social Security Act [42 U.S.C. 1396 et seq.] to include a program for ambulatory surgery, preadmission testing, or same-day surgery. “(b) Report.—“(1) The Secretary shall report to Congress, by not later than October 1, 1988, for each State in a representative sample of States—“(A) the identity of those procedures which are high volume or high cost procedures among patients who are covered under the State medicaid plan, “(B) the payment rates under those plans for such procedures, and the aggregate annual payment amounts made under such plans for such procedures (including the Federal share of such payment amounts), “(C) the rate at which each such procedure is performed on medicaid patients and (to the extent that data are available) comparisons to the rate at which such procedure is performed on patients of comparable age who are not medicaid patients, “(D) with respect to each such procedure—“(i) the number of board certified or board eligible physicians in the State who provide care and services to medicaid patients and who perform the procedure, and “(ii) in the case of a State with a mandatory second surgical opinion program in operation, the number of physicians described in clause (i) who provide second opinions (of the type described in section 1164 of the Social Security Act [42 U.S.C. 1320c–13]) for the procedure at prevailing payment rates under the State medicaid plan, and “(E) in the case of a State with a mandatory second surgical opinion program or a program of inpatient hospital preadmission review in operation, a description of—“(i) the extent to which such program impedes access to necessary care and services, and “(ii) the measures that the State has taken to address such impediments, particularly in rural areas. “(2) Such report shall also include a list of those surgical procedures which the Secretary believes meet the following criteria and for which a mandatory second opinion program under medicaid plans may be appropriate:“(A) The procedure is one which generally can be postponed without undue risk to the patient. “(B) The procedure is a high volume procedure among patients who are covered under State medicaid plans or is a high cost procedure. “(C) The procedure has a comparatively high rate of nonconfirmation upon examination by another qualified physician, there is substantial geographic variation in the rates of performance of the procedure, or there are other reasons why requiring second opinions for 100 percent of such procedures would be cost effective. “(3) The representative sample of States required to be included in the report shall include States with mandatory second surgical opinion programs in operation, States with programs of inpatient hospital preadmission review in operation, and States with neither such program in operation. “(4) In this subsection and subsection (d), the term ‘medicaid plan’ means a State plan approved under title XIX of the Social Security Act [42 U.S.C. 1396 et seq.]. “(c) Study.—“(1) The Secretary shall conduct a study of the utilization of selected medical treatments and surgical procedures by medicaid beneficiaries in order to assess the appropriateness, necessity, and effectiveness of such treatments and procedures. “(2) The study shall analyze the extent to which there is significant variation in the rate of utilization by medicaid beneficiaries of selected treatments and procedures for different geographic areas within States and among States. “(3) The study shall also identify underutilized, medically necessary treatments and procedures for which—“(A) a failure to furnish could have an adverse effect on health status, and “(B) the rate of utilization by medicaid beneficiaries is significantly less than the rate for comparable, age-adjusted populations. “(4) The study shall be coordinated, to the extent practicable, with the research program established pursuant to section 1875(c) of the Social Security Act [42 U.S.C. 1395ll(c)], with particular regard to the relationship of the variations described in paragraph (2) to patient outcomes. “(5) The Secretary shall submit an interim report on the results of the study, including an analysis of the geographic variations under paragraph (2), to the Congress not later than January 1, 1990, and shall report the final results of the study to the Congress not later than January 1, 1992. “(d) Report.—The Secretary shall report to Congress, by not later than January 1, 1993, for each State in a representative sample of States—“(1) an analysis of the procedures for which programs for ambulatory surgery, preadmission testing, and same-day surgery are appropriate for patients who are covered under the State medicaid plan, and “(2) the effects of such programs on access of such patients to necessary care, quality of care, and costs of care. In selecting such a sample of States, the Secretary shall include some States with medicaid plans that include such programs.”

Study by Comptroller General of Effect of Amendment to Subsection (a)(13)

Pub. L. 99–272, title IX, § 9509(c), Apr. 7, 1986, 100 Stat. 212, directed Comptroller General to conduct a study of effects of the amendments made by this section and report results of such study to Congress two years after Apr. 7, 1986.

Task Force on Technology-Dependent Children

Pub. L. 99–272, title IX, § 9520, Apr. 7, 1986, 100 Stat. 217, directed Secretary of Health and Human Services, within six months after Apr. 7, 1986, to establish a task force concerning alternatives to institutional care for technology-dependent children, such task force to (1) include representatives of Federal and State agencies with responsibilities relating to child health, health insurers, large employers (including those that self-insure for health care costs), providers of health care to technology-dependent children, and parents of technology-dependent children, (2) identify barriers that prevent the provision of appropriate care in a home or community setting to meet special needs of technology-dependent children, (3) recommend changes in the provision and financing of health care in private and public health care programs (including appropriate joint public-private initiatives) so as to provide home and community-based alternatives to the institutionalization of technology-dependent children, and (4) make a final report to Secretary and to Congress on its activities not later than two years after Apr. 7, 1986.

Medicaid Coverage Relating to Adoption Assistance Agreements Entered Into Before April 7, 1986

Pub. L. 99–272, title IX, § 9529(b)(2), Apr. 7, 1986, 100 Stat. 220, provided that: “In the case of an adoption assistance agreement (other than an agreement under part E of title IV of the Social Security Act [42 U.S.C. 670 et seq.]) entered into before the date of the enactment of this Act [Apr. 7, 1986]— “(A) the requirements of subdivisions (aa) and (bb) of section 1902(a)(10)(A)(ii)(VIII) of the Social Security Act [42 U.S.C. 1396a(a)(10)(A)(ii)(VIII)(aa), (bb)] shall be deemed to be met if the State agency responsible for adoption assistance agreements determines that—“(i) at the time of adoptive placement the child had special needs for medical or rehabilitative care that made the child difficult to place; and “(ii) there is in effect with respect to such child an adoption assistance agreement between the State and an adoptive parent or parents; and “(B) the requirement of subdivision (cc) of such section shall be deemed to be met if the child was found by the State to be eligible for medical assistance prior to such agreement being entered into.”

Payment for Psychiatric Hospital Services