42 U.S.C. § 1396t — Home and community care for function-

Page 4356 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 1396t which a contract is in effect under subsection (d). (9) The terms ‘‘vaccine-eligible child’’, ‘‘fed- erally vaccine-eligible child’’, and ‘‘State vac- cine-eligible child’’ have the meaning given such terms in subsection (b). (Aug. 14, 1935, ch. 531, title XIX, § 1928, as added Pub. L. 103–66, title XIII, § 13631(b)(2), Aug. 10, 1993, 107 Stat. 637.) Editorial Notes REFERENCES IN TEXT The Employee Retirement Income Security Act of 1974, referred to in subsec. (b)(2)(B)(ii)(I), is Pub. L. 93–406, Sept. 2, 1974, 88 Stat. 829, which is classified prin- cipally to chapter 18 (§ 1001 et seq.) of Title 29, Labor. For complete classification of this Act to the Code, see Short Title note set out under section 1001 of Title 29 and Tables. The Indian Health Care Improvement Act, referred to in subsec. (c)(3)(A), is Pub. L. 94–437, Sept. 30, 1976, 90 Stat. 1400. Title V of the Act is classified generally to subchapter IV (§ 1651 et seq.) of chapter 18 of Title 25, Indians. For complete classification of this Act to the Code, see Short Title note set out under section 1601 of Title 25 and Tables. The Internal Revenue Code of 1986, referred to in sub- sec. (d)(3)(B), is classified generally to Title 26, Internal Revenue Code. PRIOR PROVISIONS A prior section 1396s, act Aug. 14, 1935, ch. 531, title XIX, § 1928, formerly § 1920, as added Apr. 7, 1986, Pub. L. 99–272, title IX, § 9526, 100 Stat. 218, and renumbered and amended, which related to references to laws directly affecting medicaid program, was renumbered section 1931 of act Aug. 14, 1935, by Pub. L. 103–66, title XIII, § 13631(b)(1), Aug. 10, 1993, 107 Stat. 637, and transferred to section 1396v of this title. Statutory Notes and Related Subsidiaries EFFECTIVE DATE Section applicable to payments under State plans ap- proved under this subchapter for calendar quarters be- ginning on or after Oct. 1, 1994, see section 13631(i) of Pub. L. 103–66, set out as an Effective Date of 1993 Amendment note under section 1396a of this title. § 1396t. Home and community care for function- ally disabled elderly individuals (a) ‘‘Home and community care’’ defined In this subchapter, the term ‘‘home and com- munity care’’ means one or more of the fol- lowing services furnished to an individual who has been determined, after an assessment under subsection (c), to be a functionally disabled el- derly individual, furnished in accordance with an individual community care plan (established and periodically reviewed and revised by a quali- fied community care case manager under sub- section (d)): (1) Homemaker/home health aide services. (2) Chore services. (3) Personal care services. (4) Nursing care services provided by, or under the supervision of, a registered nurse. (5) Respite care. (6) Training for family members in man- aging the individual. (7) Adult day care. (8) In the case of an individual with chronic mental illness, day treatment or other partial hospitalization, psychosocial rehabilitation services, and clinic services (whether or not furnished in a facility). (9) Such other home and community-based services (other than room and board) as the Secretary may approve. (b) ‘‘Functionally disabled elderly individual’’ de- fined (1) In general In this subchapter, the term ‘‘functionally disabled elderly individual’’ means an indi- vidual who— (A) is 65 years of age or older, (B) is determined to be a functionally dis- abled individual under subsection (c), and (C) subject to section 1396a(f) of this title (as applied consistent with section 1396a(r)(2) of this title), is receiving supplemental secu- rity income benefits under subchapter XVI (or under a State plan approved under sub- chapter XVI) or, at the option of the State, is described in section 1396a(a)(10)(C) of this title. (2) Treatment of certain individuals previously covered under a waiver (A) In the case of a State which— (i) at the time of its election to provide coverage for home and community care under this section has a waiver approved under section 1396n(c) or 1396n(d) of this title with respect to individuals 65 years of age or older, and (ii) subsequently discontinues such waiver, individuals who were eligible for benefits under the waiver as of the date of its dis- continuance and who would, but for income or resources, be eligible for medical assist- ance for home and community care under the plan shall, notwithstanding any other provision of this subchapter, be deemed a functionally disabled elderly individual for so long as the individual would have re- mained eligible for medical assistance under such waiver. (B) In the case of a State which used a health insuring organization before January 1, 1986, and which, as of December 31, 1990, had in effect a waiver under section 1315 of this title that provides under the State plan under this subchapter for personal care services for func- tionally disabled individuals, the term ‘‘func- tionally disabled elderly individual’’ may in- clude, at the option of the State, an individual who— (i) is 65 years of age or older or is disabled (as determined under the supplemental secu- rity income program under subchapter XVI); (ii) is determined to meet the test of func- tional disability applied under the waiver as of such date; and (iii) meets the resource requirement and income standard that apply in the State to individuals described in section 1396a(a)(10)(A)(ii)(V) of this title. (3) Use of projected income In applying section 1396b(f)(1) of this title in determining the eligibility of an individual (described in section 1396a(a)(10)(C) of this Page 4357 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 1396t title) for medical assistance for home and community care, a State may, at its option, provide for the determination of the individ- ual’s anticipated medical expenses (to be de- ducted from income) over a period of up to 6 months. (c) Determinations of functional disability (1) In general In this section, an individual is ‘‘function- ally disabled’’ if the individual— (A) is unable to perform without substan- tial assistance from another individual at least 2 of the following 3 activities of daily living: toileting, transferring, and eating; or (B) has a primary or secondary diagnosis of Alzheimer’s disease and is (i) unable to perform without substantial human assist- ance (including verbal reminding or physical cueing) or supervision at least 2 of the fol- lowing 5 activities of daily living: bathing, dressing, toileting, transferring, and eating; or (ii) cognitively impaired so as to require substantial supervision from another indi- vidual because he or she engages in inappro- priate behaviors that pose serious health or safety hazards to himself or herself or oth- ers. (2) Assessments of functional disability (A) Requests for assessments If a State has elected to provide home and community care under this section, upon the request of an individual who is 65 years of age or older and who meets the requirements of subsection (b)(1)(C) (or another person on such individual’s behalf), the State shall provide for a comprehensive functional as- sessment under this subparagraph which— (i) is used to determine whether or not the individual is functionally disabled, (ii) is based on a uniform minimum data set specified by the Secretary under sub- paragraph (C)(i), and (iii) uses an instrument which has been specified by the State under subparagraph (B). No fee may be charged for such an assess- ment. (B) Specification of assessment instrument The State shall specify the instrument to be used in the State in complying with the requirement of subparagraph (A)(iii) which instrument shall be— (i) one of the instruments designated under subparagraph (C)(ii); or (ii) an instrument which the Secretary has approved as being consistent with the minimum data set of core elements, com- mon definitions, and utilization guidelines specified by the Secretary in subparagraph (C)(i). (C) Specification of assessment data set and instruments The Secretary shall— (i) not later than July 1, 1991— (I) specify a minimum data set of core elements and common definitions for use in conducting the assessments required under subparagraph (A); and (II) establish guidelines for use of the data set; and (ii) by not later than July 1, 1991, des- ignate one or more instruments which are consistent with the specification made under subparagraph (A) and which a State may specify under subparagraph (B) for use in complying with the requirements of subparagraph (A). (D) Periodic review Each individual who qualifies as a func- tionally disabled elderly individual shall have the individual’s assessment periodi- cally reviewed and revised not less often than once every 12 months. (E) Conduct of assessment by interdiscipli- nary teams An assessment under subparagraph (A) and a review under subparagraph (D) must be conducted by an interdisciplinary team des- ignated by the State. The Secretary shall permit a State to provide for assessments and reviews through teams under con- tracts— (i) with public organizations; or (ii) with nonpublic organizations which do not provide home and community care or nursing facility services and do not have a direct or indirect ownership or con- trol interest in, or direct or indirect affili- ation or relationship with, an entity that provides, community care or nursing facil- ity services. (F) Contents of assessment The interdisciplinary team must— (i) identify in each such assessment or review each individual’s functional disabil- ities and need for home and community care, including information about the indi- vidual’s health status, home and commu- nity environment, and informal support system; and (ii) based on such assessment or review, determine whether the individual is (or continues to be) functionally disabled. The results of such an assessment or review shall be used in establishing, reviewing, and revising the individual’s ICCP under sub- section (d)(1). (G) Appeal procedures Each State which elects to provide home and community care under this section must have in effect an appeals process for individ- uals adversely affected by determinations under subparagraph (F). (d) Individual community care plan (ICCP) (1) ‘‘Individual community care plan’’ defined In this section, the terms ‘‘individual com- munity care plan’’ and ‘‘ICCP’’ mean, with re- spect to a functionally disabled elderly indi- vidual, a written plan which— (A) is established, and is periodically re- viewed and revised, by a qualified case man- ager after a face-to-face interview with the individual or primary caregiver and based upon the most recent comprehensive func- Page 4358 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 1396t 1 So in original. Probably should not be capitalized. tional assessment of such individual con- ducted under subsection (c)(2); (B) specifies, within any amount, duration, and scope limitations imposed on home and community care provided under the State plan, the home and community care to be provided to such individual under the plan, and indicates the individual’s preferences for the types and providers of services; and (C) may specify other services required by such individual. An ICCP may also designate the specific pro- viders (qualified to provide home and commu- nity care under the State plan) which will pro- vide the home and community care described in subparagraph (B). Nothing in this section shall be construed as authorizing an ICCP or the State to restrict the specific persons or in- dividuals (who are competent to provide home and community care under the State plan) who will provide the home and community care described in subparagraph (B). (2) ‘‘Qualified community care case manager’’ defined In this section, the term ‘‘qualified commu- nity care case manager’’ means a nonprofit or public agency or organization which— (A) has experience or has been trained in establishing, and in periodically reviewing and revising, individual community care plans and in the provision of case manage- ment services to the elderly; (B) is responsible for (i) assuring that home and community care covered under the State plan and specified in the ICCP is being provided, (ii) visiting each individual’s home or community setting where care is being provided not less often than once every 90 days, and (iii) informing the elderly indi- vidual or primary caregiver on how to con- tact the case manager if service providers fail to properly provide services or other similar problems occur; (C) in the case of a nonpublic agency, does not provide home and community care or nursing facility services and does not have a direct or indirect ownership or control inter- est in, or direct or indirect affiliation or re- lationship with, an entity that provides, home and community care or nursing facil- ity services; (D) has procedures for assuring the quality of case management services that includes a peer review process; (E) completes the ICCP in a timely manner and reviews and discusses new and revised ICCPs with elderly individuals or primary caregivers; and (F) meets such other standards, estab- lished by the Secretary, as to assure that— (i) such a manager is competent to per- form case management functions; (ii) individuals whose home and commu- nity care they manage are not at risk of fi- nancial exploitation due to such a man- ager; and (iii) meets such other standards as the State may establish. The Secretary may waive the requirement of subparagraph (C) in the case of a nonprofit agency located in a rural area. (3) Appeals process Each State which elects to provide home and community care under this section must have in effect an appeals process for individuals who disagree with the ICCP established. (e) Ceiling on payment amounts and mainte- nance of effort (1) Ceiling on payment amounts Payments may not be made under section 1396b(a) of this title to a State for home and community care provided under this section in a quarter to the extent that the medical as- sistance for such care in the quarter exceeds 50 percent of the product of— (A) the average number of individuals in the quarter receiving such care under this section; (B) the average per diem rate of payment which the Secretary has determined (before the beginning of the quarter) will be payable under subchapter XVIII (without regard to coinsurance) for extended care services to be provided in the State during such quarter; and (C) the number of days in such quarter. (2) Maintenance of effort (A) Annual reports As a condition for the receipt of payment under section 1396b(a) of this title with re- spect to medical assistance provided by a State for home and community care (other than a waiver under section 1396n(c) of this title and other than home health care serv- ices described in section 1396d(a)(7) of this title and personal care services specified under regulations under section 1396d(a)(23) of this title), the State shall report to the Secretary, with respect to each Federal fis- cal year (beginning with fiscal year 1990) and in a format developed or approved by the Secretary, the amount of funds obligated by the State with respect to the provision of home and community care to the function- ally disabled elderly in that fiscal year. (B) Reduction in payment if failure to main- tain effort If the amount reported under subpara- graph (A) by a State with respect to a fiscal year is less than the amount reported under subparagraph (A) with respect to fiscal year 1989, the Secretary shall provide for a reduc- tion in payments to the State under section 1396b(a) of this title in an amount equal to the difference between the amounts so re- ported. (f) Minimum requirements for home and commu- nity care (1) Requirements Home and Community 1 care provided under this section must meet such requirements for individuals’ rights and quality as are pub- lished or developed by the Secretary under subsection (k). Such requirements shall in- clude— (A) the requirement that individuals pro- viding care are competent to provide such care; and Page 4359 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 1396t (B) the rights specified in paragraph (2). (2) Specified rights The rights specified in this paragraph are as follows: (A) The right to be fully informed in ad- vance, orally and in writing, of the care to be provided, to be fully informed in advance of any changes in care to be provided, and (except with respect to an individual deter- mined incompetent) to participate in plan- ning care or changes in care. (B) The right to voice grievances with re- spect to services that are (or fail to be) fur- nished without discrimination or reprisal for voicing grievances, and to be told how to complain to State and local authorities. (C) The right to confidentiality of personal and clinical records. (D) The right to privacy and to have one’s property treated with respect. (E) The right to refuse all or part of any care and to be informed of the likely con- sequences of such refusal. (F) The right to education or training for oneself and for members of one’s family or household on the management of care. (G) The right to be free from physical or mental abuse, corporal punishment, and any physical or chemical restraints imposed for purposes of discipline or convenience and not included in an individual’s ICCP. (H) The right to be fully informed orally and in writing of the individual’s rights. (I) Guidelines for such minimum com- pensation for individuals providing such care as will assure the availability and con- tinuity of competent individuals to provide such care for functionally disabled individ- uals who have functional disabilities of varying levels of severity. (J) Any other rights established by the Secretary. (g) Minimum requirements for small community care settings (1) ‘‘Small community care setting’’ defined In this section, the term ‘‘small community care setting’’ means— (A) a nonresidential setting that serves more than 2 and less than 8 individuals; or (B) a residential setting in which more than 2 and less than 8 unrelated adults re- side and in which personal services (other than merely board) are provided in conjunc- tion with residing in the setting. (2) Minimum requirements A small community care setting in which community care is provided under this section must— (A) meet such requirements as are pub- lished or developed by the Secretary under subsection (k); (B) meet the requirements of paragraphs (1)(A), (1)(C), (1)(D), (3), and (6) of section 1396r(c) of this title, to the extent applicable to such a setting; (C) inform each individual receiving com- munity care under this section in the set- ting, orally and in writing at the time the individual first receives community care in the setting, of the individual’s legal rights with respect to such a setting and the care provided in the setting; (D) meet any applicable State or local re- quirements regarding certification or licen- sure; (E) meet any applicable State and local zoning, building, and housing codes, and State and local fire and safety regulations; and (F) be designed, constructed, equipped, and maintained in a manner to protect the health and safety of residents. (h) Minimum requirements for large community care settings (1) ‘‘Large community care setting’’ defined In this section, the term ‘‘large community care setting’’ means— (A) a nonresidential setting in which more than 8 individuals are served; or (B) a residential setting in which more than 8 unrelated adults reside and in which personal services are provided in conjunc- tion with residing in the setting in which home and community care under this sec- tion is provided. (2) Minimum requirements A large community care setting in which community care is provided under this section must— (A) meet such requirements as are pub- lished or developed by the Secretary under subsection (k); (B) meet the requirements of paragraphs (1)(A), (1)(C), (1)(D), (3), and (6) of section 1396r(c) of this title, to the extent applicable to such a setting; (C) inform each individual receiving com- munity care under this section in the set- ting, orally and in writing at the time the individual first receives home and commu- nity care in the setting, of the individual’s legal rights with respect to such a setting and the care provided in the setting; and (D) meet the requirements of paragraphs (2) and (3) of section 1396r(d) of this title (re- lating to administration and other matters) in the same manner as such requirements apply to nursing facilities under such sec- tion; except that, in applying the require- ment of section 1396r(d)(2) of this title (relat- ing to life safety code), the Secretary shall provide for the application of such life safety requirements (if any) that are appropriate to the setting. (3) Disclosure of ownership and control inter- ests and exclusion of repeated violators A community care setting— (A) must disclose persons with an owner- ship or control interest (including such per- sons as defined in section 1320a–3(a)(3) of this title) in the setting; and (B) may not have, as a person with an own- ership or control interest in the setting, any individual or person who has been excluded from participation in the program under this subchapter or who has had such an owner- ship or control interest in one or more com- munity care settings which have been found Page 4360 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 1396t repeatedly to be substandard or to have failed to meet the requirements of paragraph (2). (i) Survey and certification process (1) Certifications (A) Responsibilities of the State Under each State plan under this sub- chapter, the State shall be responsible for certifying the compliance of providers of home and community care and community care settings with the applicable require- ments of subsections (f), (g) and (h). The fail- ure of the Secretary to issue regulations to carry out this subsection shall not relieve a State of its responsibility under this sub- section. (B) Responsibilities of the Secretary The Secretary shall be responsible for cer- tifying the compliance of State providers of home and community care, and of State community care settings in which such care is provided, with the requirements of sub- sections (f), (g) and (h). (C) Frequency of certifications Certification of providers and settings under this subsection shall occur no less fre- quently than once every 12 months. (2) Reviews of providers (A) In general The certification under this subsection with respect to a provider of home or com- munity care must be based on a periodic re- view of the provider’s performance in pro- viding the care required under ICCP’s in ac- cordance with the requirements of sub- section (f). (B) Special reviews of compliance Where the Secretary has reason to ques- tion the compliance of a provider of home or community care with any of the require- ments of subsection (f), the Secretary may conduct a review of the provider and, on the basis of that review, make independent and binding determinations concerning the ex- tent to which the provider meets such re- quirements. (3) Surveys of community care settings (A) In general The certification under this subsection with respect to community care settings must be based on a survey. Such survey for such a setting must be conducted without prior notice to the setting. Any individual who notifies (or causes to be notified) a com- munity care setting of the time or date on which such a survey is scheduled to be con- ducted is subject to a civil money penalty of not to exceed $2,000. The provisions of sec- tion 1320a–7a of this title (other than sub- sections (a) and (b)) shall apply to a civil money penalty under the previous sentence in the same manner as such provisions apply to a penalty or proceeding under section 1320a–7a(a) of this title. The Secretary shall review each State’s procedures for sched- uling and conducting such surveys to assure that the State has taken all reasonable steps to avoid giving notice of such a survey through the scheduling procedures and the conduct of the surveys themselves. (B) Survey protocol Surveys under this paragraph shall be con- ducted based upon a protocol which the Sec- retary has provided for under subsection (k). (C) Prohibition of conflict of interest in sur- vey team membership A State and the Secretary may not use as a member of a survey team under this para- graph an individual who is serving (or has served within the previous 2 years) as a member of the staff of, or as a consultant to, the community care setting being surveyed (or the person responsible for such setting) respecting compliance with the require- ments of subsection (g) or (h) or who has a personal or familial financial interest in the setting being surveyed. (D) Validation surveys of community care settings The Secretary shall conduct onsite surveys of a representative sample of community care settings in each State, within 2 months of the date of surveys conducted under sub- paragraph (A) by the State, in a sufficient number to allow inferences about the adequacies of each State’s surveys con- ducted under subparagraph (A). In con- ducting such surveys, the Secretary shall use the same survey protocols as the State is required to use under subparagraph (B). If the State has determined that an individual setting meets the requirements of sub- section (g), but the Secretary determines that the setting does not meet such require- ments, the Secretary’s determination as to the setting’s noncompliance with such re- quirements is binding and supersedes that of the State survey. (E) Special surveys of compliance Where the Secretary has reason to ques- tion the compliance of a community care setting with any of the requirements of sub- section (g) or (h), the Secretary may conduct a survey of the setting and, on the basis of that survey, make independent and binding determinations concerning the extent to which the setting meets such requirements. (4) Investigation of complaints and monitoring of providers and settings Each State and the Secretary shall maintain procedures and adequate staff to investigate complaints of violations of applicable require- ments imposed on providers of community care or on community care settings under sub- sections (f), (g) and (h). (5) Investigation of allegations of individual neglect and abuse and misappropriation of individual property The State shall provide, through the agency responsible for surveys and certification of providers of home or community care and community care settings under this sub- section, for a process for the receipt, review, Page 4361 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 1396t and investigation of allegations of individual neglect and abuse (including injuries of un- known source) by individuals providing such care or in such setting and of misappropria- tion of individual property by such individ- uals. The State shall, after notice to the indi- vidual involved and a reasonable opportunity for hearing for the individual to rebut allega- tions, make a finding as to the accuracy of the allegations. If the State finds that an indi- vidual has neglected or abused an individual receiving community care or misappropriated such individual’s property, the State shall no- tify the individual against whom the finding is made. A State shall not make a finding that a person has neglected an individual receiving community care if the person demonstrates that such neglect was caused by factors be- yond the control of the person. The State shall provide for public disclosure of findings under this paragraph upon request and for inclusion, in any such disclosure of such findings, of any brief statement (or of a clear and accurate summary thereof) of the individual disputing such findings. (6) Disclosure of results of inspections and ac- tivities (A) Public information Each State, and the Secretary, shall make available to the public— (i) information respecting all surveys, reviews, and certifications made under this subsection respecting providers of home or community care and community care settings, including statements of defi- ciencies, (ii) copies of cost reports (if any) of such providers and settings filed under this sub- chapter, (iii) copies of statements of ownership under section 1320a–3 of this title, and (iv) information disclosed under section 1320a–5 of this title. (B) Notices of substandard care If a State finds that— (i) a provider of home or community care has provided care of substandard quality with respect to an individual, the State shall make a reasonable effort to notify promptly (I) an immediate family member of each such individual and (II) individuals receiving home or community care from that provider under this subchapter, or (ii) a community care setting is sub- standard, the State shall make a reason- able effort to notify promptly (I) individ- uals receiving community care in that set- ting, and (II) immediate family members of such individuals. (C) Access to fraud control units Each State shall provide its State med- icaid fraud and abuse control unit (estab- lished under section 1396b(q) of this title) with access to all information of the State agency responsible for surveys, reviews, and certifications under this subsection. (j) Enforcement process for providers of commu- nity care (1) State authority (A) In general If a State finds, on the basis of a review under subsection (i)(2) or otherwise, that a provider of home or community care no longer meets the requirements of this sec- tion, the State may terminate the provider’s participation under the State plan and may provide in addition for a civil money pen- alty. Nothing in this subparagraph shall be construed as restricting the remedies avail- able to a State to remedy a provider’s defi- ciencies. If the State finds that a provider meets such requirements but, as of a pre- vious period, did not meet such require- ments, the State may provide for a civil money penalty under paragraph (2)(A) for the period during which it finds that the pro- vider was not in compliance with such re- quirements. (B) Civil money penalty (i) In general Each State shall establish by law (whether statute or regulation) at least the following remedy: A civil money pen- alty assessed and collected, with interest, for each day in which the provider is or was out of compliance with a requirement of this section. Funds collected by a State as a result of imposition of such a penalty (or as a result of the imposition by the State of a civil money penalty under sub- section (i)(3)(A)) may be applied to reim- bursement of individuals for personal funds lost due to a failure of home or com- munity care providers to meet the require- ments of this section. The State also shall specify criteria, as to when and how this remedy is to be applied and the amounts of any penalties. Such criteria shall be de- signed so as to minimize the time between the identification of violations and final imposition of the penalties and shall pro- vide for the imposition of incrementally more severe penalties for repeated or un- corrected deficiencies. (ii) Deadline and guidance Each State which elects to provide home and community care under this section must establish the civil money penalty remedy described in clause (i) applicable to all providers of community care covered under this section. The Secretary shall provide, through regulations or otherwise by not later than July 1, 1990, guidance to States in establishing such remedy; but the failure of the Secretary to provide such guidance shall not relieve a State of the responsibility for establishing such remedy. (2) Secretarial authority (A) For State providers With respect to a State provider of home or community care, the Secretary shall have the authority and duties of a State under Page 4362 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 1396t this subsection, except that the civil money penalty remedy described in subparagraph (C) shall be substituted for the civil money remedy described in paragraph (1)(B)(i). (B) Other providers With respect to any other provider of home or community care in a State, if the Sec- retary finds that a provider no longer meets a requirement of this section, the Secretary may terminate the provider’s participation under the State plan and may provide, in ad- dition, for a civil money penalty under sub- paragraph (C). If the Secretary finds that a provider meets such requirements but, as of a previous period, did not meet such require- ments, the Secretary may provide for a civil money penalty under subparagraph (C) for the period during which the Secretary finds that the provider was not in compliance with such requirements. (C) Civil money penalty If the Secretary finds on the basis of a re- view under subsection (i)(2) or otherwise that a home or community care provider no longer meets the requirements of this sec- tion, the Secretary shall impose a civil money penalty in an amount not to exceed $10,000 for each day of noncompliance. The provisions of section 1320a–7a of this title (other than subsections (a) and (b)) shall apply to a civil money penalty under the previous sentence in the same manner as such provisions apply to a penalty or pro- ceeding under section 1320a–7a(a) of this title. The Secretary shall specify criteria, as to when and how this remedy is to be applied and the amounts of any penalties. Such cri- teria shall be designed so as to minimize the time between the identification of violations and final imposition of the penalties and shall provide for the imposition of incremen- tally more severe penalties for repeated or uncorrected deficiencies. (k) Secretarial responsibilities (1) Publication of interim requirements (A) In general The Secretary shall publish, by December 1, 1991, a proposed regulation that sets forth interim requirements, consistent with sub- paragraph (B), for the provision of home and community care and for community care settings, including— (i) the requirements of subsection (c)(2) (relating to comprehensive functional as- sessments, including the use of assessment instruments), of subsection (d)(2)(E) (relat- ing to qualifications for qualified case managers), of subsection (f) (relating to minimum requirements for home and com- munity care), of subsection (g) (relating to minimum requirements for small commu- nity care settings), and of subsection (h) (relating to minimum requirements for large community care settings), and (ii) survey protocols (for use under sub- section (i)(3)(A)) which relate to such re- quirements. (B) Minimum protections Interim requirements under subparagraph (A) and final requirements under paragraph (2) shall assure, through methods other than reliance on State licensure processes, that individuals receiving home and community care are protected from neglect, physical and sexual abuse, financial exploitation, in- appropriate involuntary restraint, and the provision of health care services by unquali- fied personnel in community care settings. (2) Development of final requirements The Secretary shall develop, by not later than October 1, 1992— (A) final requirements, consistent with paragraph (1)(B), respecting the provision of appropriate, quality home and community care and respecting community care settings under this section, and including at least the requirements referred to in paragraph (1)(A)(i), and (B) survey protocols and methods for eval- uating and assuring the quality of commu- nity care settings. The Secretary may, from time to time, revise such requirements, protocols, and methods. (3) No delegation to States The Secretary’s authority under this sub- section shall not be delegated to States. (4) No prevention of more stringent require- ments by States Nothing in this section shall be construed as preventing States from imposing requirements that are more stringent than the requirements published or developed by the Secretary under this subsection. (l) Waiver of Statewideness States may waive the requirement of section 1396a(a)(1) of this title (related to Statewideness) for a program of home and com- munity care under this section. (m) Limitation on amount of expenditures as medical assistance (1) Limitation on amount The amount of funds that may be expended as medical assistance to carry out the pur- poses of this section shall be for fiscal year 1991, $40,000,000, for fiscal year 1992, $70,000,000, for fiscal year 1993, $130,000,000, for fiscal year 1994, $160,000,000, and for fiscal year 1995, $180,000,000. (2) Assurance of entitlement to service A State which receives Federal medical as- sistance for expenditures for home and com- munity care under this section must provide home and community care specified under the Individual Community Care Plan under sub- section (d) to individuals described in sub- section (b) for the duration of the election pe- riod, without regard to the amount of funds available to the State under paragraph (1). For purposes of this paragraph, an election period is the period of 4 or more calendar quarters elected by the State, and approved by the Sec- retary, for the provision of home and commu- nity care under this section. (3) Limitation on eligibility The State may limit eligibility for home and community care under this section during an Page 4363 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 1396u 1 So in original. The comma probably should precede ‘‘the term’’. election period under paragraph (2) to reason- able classifications (based on age, degree of functional disability, and need for services). (4) Allocation of medical assistance The Secretary shall establish a limitation on the amount of Federal medical assistance available to any State during the State’s elec- tion period under paragraph (2). The limita- tion under this paragraph shall take into ac- count the limitation under paragraph (1) and the number of elderly individuals age 65 or over residing in such State in relation to the number of such elderly individuals in the United States during 1990. For purposes of the previous sentence, elderly individuals shall, to the maximum extent practicable, be low-in- come elderly individuals. (Aug. 14, 1935, ch. 531, title XIX, § 1929, as added Pub. L. 101–508, title IV, § 4711(b), Nov. 5, 1990, 104 Stat. 1388–174; amended Pub. L. 106–113, div. B, § 1000(a)(6) [title VI, § 608(v)], Nov. 29, 1999, 113 Stat. 1536, 1501A–398.) Editorial Notes CODIFICATION Pub. L. 101–508, title IV, § 4711(b)(1), Nov. 5, 1990, 104 Stat. 1388–174, which directed renumbering of section 1929 of the Social Security Act, act Aug. 14, 1935, as sec- tion 1930, could not be executed because there was no section 1929. AMENDMENTS 1999—Subsec. (c)(2)(E)(i), (ii). Pub. L. 106–113, § 1000(a)(6) [title VI, § 608(v)(1)], realigned margins. Subsec. (k)(1)(A)(i). Pub. L. 106–113, § 1000(a)(6) [title VI, § 608(v)(2)], substituted ‘‘large community care set- tings),’’ for ‘‘large community care settings,’’. Subsec. (l). Pub. L. 106–113, § 1000(a)(6) [title VI, § 608(v)(3)], substituted ‘‘Statewideness’’ for ‘‘State wideness’’. Statutory Notes and Related Subsidiaries EFFECTIVE DATE Section applicable to home and community care fur- nished on or after July 1, 1991, without regard to wheth- er or not final regulations to carry out the amend- ments made by section 4711 of Pub. L. 101–508 have been promulgated by such date, see section 4711(e) of Pub. L. 101–508, set out as an Effective Date of 1990 Amendment note under section 1396a of this title. § 1396u. Community supported living arrange- ments services (a) Community supported living arrangements services In this subchapter, the term ‘‘community sup- ported living arrangements services’’ means one or more of the following services meeting the re- quirements of subsection (h) provided in a State eligible to provide services under this section (as defined in subsection (d)) to assist a develop- mentally disabled individual (as defined in sub- section (b)) in activities of daily living nec- essary to permit such individual to live in the individual’s own home, apartment, family home, or rental unit furnished in a community sup- ported living arrangement setting: (1) Personal assistance. (2) Training and habilitation services (nec- essary to assist the individual in achieving in- creased integration, independence and produc- tivity). (3) 24-hour emergency assistance (as defined by the Secretary). (4) Assistive technology. (5) Adaptive equipment. (6) Other services (as approved by the Sec- retary, except those services described in sub- section (g)). (7) Support services necessary to aid an indi- vidual to participate in community activities. (b) ‘‘Developmentally disabled individual’’ de- fined In this subchapter the term,1 ‘‘develop- mentally disabled individual’’ means an indi- vidual who as defined by the Secretary is de- scribed within the term ‘‘mental retardation and related conditions’’ as defined in regulations as in effect on July 1, 1990, and who is residing with the individual’s family or legal guardian in such individual’s own home in which no more than 3 other recipients of services under this section are residing and without regard to whether or not such individual is at risk of in- stitutionalization (as defined by the Secretary). (c) Criteria for selection of participating States The Secretary shall develop criteria to review the applications of States submitted under this section to provide community supported living arrangement services. The Secretary shall pro- vide in such criteria that during the first 5 years of the provision of services under this section that no less than 2 and no more than 8 States shall be allowed to receive Federal financial par- ticipation for providing the services described in this section. (d) Quality assurance A State selected by the Secretary to provide services under this section shall in order to con- tinue to receive Federal financial participation for providing services under this section be re- quired to establish and maintain a quality as- surance program, that provides that— (1) the State will certify and survey pro- viders of services under this section (such sur- veys to be unannounced and average at least 1 a year); (2) the State will adopt standards for survey and certification that include— (A) minimum qualifications and training requirements for provider staff; (B) financial operating standards; and (C) a consumer grievance process; (3) the State will provide a system that al- lows for monitoring boards consisting of pro- viders, family members, consumers, and neigh- bors; (4) the State will establish reporting proce- dures to make available information to the public; (5) the State will provide ongoing moni- toring of the health and well-being of each re- cipient; (6) the State will provide the services de- fined in subsection (a) in accordance with an individual support plan (as defined by the Sec- retary in regulations); and