SB0765sam006 95TH GENERAL ASSEMBLY

Sen. M. Maggie Crotty

Filed: 3/30/2007

09500SB0765sam006 LRB095 05416 HLH 34795 a

AMENDMENT TO SENATE BILL 765

AMENDMENT NO. ______. Amend Senate Bill 765, AS AMENDED, by replacing everything after the enacting clause with the following:

"Section 5. The Disabilities Services Act of 2003 is amended by adding a heading to Article 1 immediately before Section 1 of the Act, by adding a heading to Article 2 immediately before Section 5 of the Act, by adding Article 3 and a heading to Article 99 immediately before Section 90 of the Act as follows:

(20 ILCS 2407/Art. 1 heading new)

ARTICLE 1. SHORT TITLE

(20 ILCS 2407/Art. 2 heading new)

ARTICLE 2. DISABILITIES SERVICES ACT of 2003

(20 ILCS 2407/Art. 3 heading new)

ARTICLE 3. OLMSTEAD IMPLEMENTATION ACT

(20 ILCS 2407/51 new)

Sec. 51. Legislative intent. It is the intent of the General Assembly to promote the civil rights of persons with disabilities by providing community-based services for persons with disabilities when such services are determined appropriate and desired by the affected persons, as required by Title II of the Americans with Disabilities Act under the United States Supreme Court's decision in Olmstead v. L.C., 527 U.S. 581 (1999). In accordance with Section 6071 of the Deficit Reduction Act of 2005 (P.L. 109-171), the purpose of this Act is: (i) to eliminate barriers or mechanisms, whether in State law, the State Medicaid plan, the State budget, or otherwise, that prevent or restrict the flexible use of public funds to enable individuals with disabilities to receive support for appropriate and necessary long-term services in settings of their choice; (ii) to increase the use of home and community-based long-term care services, rather than institutions or long-term care facilities; (iii) to 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 institution or a long-term care facility to a community setting; and (iv) to ensure that procedures are in place that are at least comparable to those required under the qualified home and community based 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. More specifically, this Article amends the Disabilities Services Act of 2003 (notwithstanding Section 30 of the Act) and the Illinois Act on the Aging to mandate the creation of a flexible system of financing for long-term services and supports in Illinois that would allow available Medicaid funds to be spent on home and community-based services when an individual residing in an institution or long-term care facility moves to the most appropriate and preferred community-based setting of his or her choice.

(20 ILCS 2407/52 new)

Sec. 52. Applicability; definitions. In accordance with section 6071 of the Deficit Reduction Act of 2005 (P.L. 109-171), as used in this Article:

"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, a service aid, or benefit, home and community-based services, including but not limited to home health and personal care services, that are provided to a person with a disability, and are voluntarily accepted, as part of his or her long-term care that: (i) is provided under the State's qualified home and community based program or that could be provided under such a program but is otherwise provided under the Medicaid program; (ii) is delivered in a qualified residence; and (iii) is necessary for the person with a disability to live in the community.

"Case manager". The term "case manager" has the meaning as defined in the Illinois Act on the Aging.

"Departments". The term "Departments" means for the purposes of this Act, the Department of Human Services, the Department on Aging, Department of Children and Family Services, Department of Healthcare and Family Services and Department of Public Health, unless otherwise noted.

"Eligible Individual". The term "eligible individual" means a person in Illinois who (i) has resided, for a period of not less than 6 months, in a long-term care facility; (ii) is receiving Medicaid benefits for long-term care services furnished by that long-term care facility; (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 a long-term care facility; (iv) who is deemed appropriate by the inter-disciplinary team or case managers for home or community-based long-term care services; and (v) who wants to transfer from a long-term care facility to a qualified residence. For the purposes of this Act, "eligible individual" does not include a person with a disability receiving acute care mental health treatment in a State-operated mental health center for less than 30 consecutive days in a one-year period, or a person committed to a State-operated mental health forensic program, or developmental center forensic program.

"Long-term care facility". The term "long-term care facility", for the purposes of this Article, means a skilled nursing or intermediate long-term care facility subject to licensure by the Department of Public Health under the Nursing Home Care Act, an intermediate care facility for the developmentally disabled (ICF-DDs), an institution for mental diseases, child care institutions licensed by the Department of Children and Family Services, any community living facility as defined in the Community Living Facilities Licensing Act (210 ILCS 35), any community residential alternative as defined in the Community Residential Alternatives Licensing Act (405 ILCS 30), any Supportive Living Facility as provided in the Public Aid Code (305 ILCS 5/5-5.01a), and a State-operated developmental center or mental health center, whether publicly or privately owned.

"Interdisciplinary team" means a group of persons that represents those professions, disciplines, or service areas that are relevant to identifying an individual's strengths and needs, and designs a program to meet those needs. This team shall include at least a physician, a social worker, other professionals, and the individual. In facilities serving individuals with developmental disabilities, at least one member of the team shall be a qualified mental retardation professional. The interdisciplinary team includes the individual, the individual's guardian, the individual's authorized representative, the individual's primary service providers, including staff most familiar with the individual's needs. The individual or his or her guardian may also invite other individuals to meet with the interdisciplinary team and participate in the process of identifying the individual's strengths and needs.

"Qualified residence". The term "qualified residence" means, with respect to an eligible individual: (i) a home owned or leased by the individual or the individual's authorized representative (as defined by P.L. 109-171); (ii) 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 (iii) a residence, in a community-based residential setting, as defined by administrative rule.

"Self-directed services". The term "self-directed services" means, with respect to home and community-based long-term care services for an eligible individual, those services for the individual that are planned and purchased under the direction and control of the individual or the individual's authorized representative, 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) Individual service care or treatment plan: based on the assessment, there is developed jointly with such individual or the individual's authorized representative, a plan for such services for the individual that is approved by the State and that (i) specifies those services, if any, that 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.

"Public Funds" means any funds appropriated by the General Assembly to the Department of Human Services, the Department on Aging, the Department of Children and Family Services, or the Department of Healthcare and Family Services, for settings and services as defined in this Article.

(20 ILCS 2407/53 new)

Sec. 53. Allocation of public funds.

(a) Any eligible individual, as defined in Section 52, has the right to have public funds available to pay for his or her home and community-based long-term care services in a qualified residence when such individual moves from a long-term care facility to the most appropriate and preferred community-based setting of his or her choice. The amount of public funds available shall be funded in accordance with the individual service, care, or treatment plan and shall be the greater of (A) the funding that would be available to the individual through the applicable State-operated home and community based waiver program as determined by administrative rule or statute, or (B)(i) an amount no greater than the licensure category of the facility in which the individual received care reduced by the average capital component of the overall facility rate and (ii) further qualified by the weighted average rate by geographic area grouping that a facility of the same licensure category would receive in the area of the individual's qualified residence.

(b) In accordance with Sections 15(2) and 20(b)(2) of this Act, all eligible individuals under this Act shall have an individual service, care, or treatment plan that is reviewed by the interdisciplinary team or case managers at least annually that is consistent with the requirements under subparts (A) and (B) of item 8 of subsection (b) of the Deficit Reduction Act of 2005 (P.L. 109-171), and that includes an individualized budget that identifies the dollar value of the services consistent with the requirements under subsection (b)(8)(C) of section 6071 and supports under the control and direction of the individual or the individual's authorized representative. The service, care, or treatment plan must contain assurances that each eligible individual has been provided the opportunity to make an informed choice regarding their right under subsection (a).

(c) In accordance with any Disabilities Services Plan or plan update under this Act and section 6071 of the Deficit Reduction Act of 2005 (P.L. 109-171) and the Older Adult Services Act, the Departments, in consultation with organizations comprised of or representing people with disabilities or people aged 60 or older and providers of Medicaid acute and long-term care services, shall develop appropriate fiscal payment mechanisms and methodologies, by December 1, 2008, that effectively support choice and eliminate any legal, budgetary, or other barriers to flexibility in the availability of Medicaid funds to pay for long-term care services for individuals in the appropriate home and community-based long-term care settings of their choice, including costs to transition from a long-term care facility to a qualified residence. With respect to the individualized budgets described in subsection (b), the fiscal payment mechanisms and methodologies must: (i) describe the method for calculating the dollar values in such budgets based on reliable costs and service utilization; (ii) define a process for making adjustments in such dollar values to reflect changes in individual assessments and service, care, or treatment plans; and (iii) provide a procedure to evaluate expenditures under such budgets.

(d) In addition to Section 4.4 of the Community Services Act of 2004 (P.A. 094-0498), to the extent that savings are realized, those moneys must be deposited into the Olmstead Implementation Fund, created as a special fund in the State treasury, and the Older Adult Services Fund, created as a special fund in the State treasury, with the allocation between these 2 funds based on a formula determined by the Departments by administrative rule, and shall be used to expand the availability, quality, or stability of home and community-based long-term care services and supports for persons with disabilities including, but not limited to the following: in-home consumer/family supports; integrated, accessible, and affordable housing options and home modifications.

(e) The allocation of public funds for home and community-based long-term care services shall not have the effect of: (i) diminishing or reducing the quality of services available to residents of long-term care facilities; (ii) forcing any residents of long-term care facilities to involuntarily accept home and community-based long-term care services, or causing any residents of long-term care facilities to be involuntarily transferred or discharged; (iii) causing reductions in long-term care facility reimbursement rates in effect as of July 1, 2008; (iv) causing any delay of long-term care facility payments; or (v) diminishing access to a full array of long-term care options. If an eligible individual moves to a qualified residence and determines it is not the appropriate or preferred setting, they remain entitled to return to a long-term care facility under Title XIX of the Social Security Act (42 U.S.C §1396a(a)(10)(A), §1396d(a)(15), §1396a(a)(1) at the established rate for that facility.

(f) Funding for eligible individuals under this Act shall remain available to the eligible individual, in accordance with the individual service or treatment plan, as long as he or she remains eligible for services in a long-term care facility and prefers home and community-based long-term care services.

(20 ILCS 2407/54 new)

Sec. 54. Quality assurance and quality improvement.

(a) In accordance with subsection (c) (11) of section 6071 of the Deficit Reduction Act of 2005 (P.L. 109-171), the Departments shall develop a plan for quality assurance and quality improvement for home and community-based long-term care services under the State Medicaid program, including a regulatory plan to assure the health and welfare of eligible individuals under this Act.

(b) This plan shall require the Departments to apply for any available federal strategic planning and implementation funding to carry out the intent of this legislation, and to seek any appropriate Federal Medicaid waivers to maximize Federal financial participation.

(20 ILCS 2407/55 new)

Sec. 55. Dissemination of information; reports.

(a) The State shall ensure that all eligible individuals are informed of their right to receive home and community-based long-term care services under this Act. The Departments shall work together with organizations comprised of, or representing people with disabilities or people aged 60 or older and providers of Medicaid acute and long-term care services, to ensure that persons with disabilities and their families, guardians, and advocates are informed of their rights under this Act in a manner that is easily understandable and accessible to people with disabilities. The Departments shall ensure that multiple methods of dissemination are employed and shall make concerted efforts to inform people currently in long-term care facilities, including at their individual team or program meetings. The Department of Public Health shall ensure that, as a condition of licensing and certification, all long-term care facilities covered under this Act shall inform all residents annually of their opportunities to choose home and community alternatives under this Act. Additionally, the Department shall require each long-term care facility to post in a prominent location a notice containing information on rights and services available under this Act. Notices posted shall comply with the accessibility standards of the Americans with Disabilities Act.

(b) On or before April 1 of each year, in conjunction with their annual reports, the Departments shall report to the Governor and the General Assembly on the implementation of this Act and include, at a minimum, the following data; (i) a description of the fiscal payment mechanisms and methodologies developed under this Act that effectively support choice; (ii) an accounting of the savings realized under this Act and the ways in which these savings were spent; (iii) information concerning the dollar amounts of State Medicaid expenditures for fiscal years 2009 and 2010, for long-term care services and the percentage of such expenditures that were for an institution or long-term care services or were for home and community-based long-term care services; (iv) a description of the Departments' efforts to inform all eligible individuals of their rights under this Act; (v) the number of eligible individuals referred or identified under this Act in the previous fiscal year, the number of eligible individuals who applied to transfer to home and community-based long-term care services in the previous fiscal year, and the number of eligible individuals who, in fact, transferred from a long-term care facility to a qualified residence in the previous fiscal year; (vi) documentation that the Departments have met the requirements under Section 5 to assure the health and welfare of eligible individuals receiving home and community-based long-term care services; and (vii) any obstacles the Departments confronted in assisting residents of long-term care facilities to make the transition to a qualified residence, and the Departments' recommendations for removing those obstacles. This report must be made available to the general public, including via the Departments' websites.

(20 ILCS 2407/56 new)

Sec. 56. Effect on existing rights.

(a) This Article does not alter or affect the manner in which persons with disabilities are determined eligible or appropriate for home and community-based long-term care services, except to the extent the determinations are based on the availability of community services.

(b) This Article shall not be read to limit in any way the rights of people with disabilities under the U.S. Constitution, the Americans with Disabilities Act, Section 504 of the Rehabilitation Act, the Social Security Act, or any other federal or State law.

(20 ILCS 2407/57 new)

Sec. 57. Rules. The Departments shall adopt any rules necessary for the implementation and administration of this Act within 6 months of the effective date of this Act.

(20 ILCS 2407/58 new)

Sec. 58. Service provider cost reporting and accountability. The Departments shall adopt any rules necessary for the implementation of service provider cost reporting to ensure accountability under this Act within 6 months of the effective date of this Act.

(20 ILCS 2407/Art. 99 heading new)

ARTICLE 99. AMENDATORY PROVISIONS; EFFECTIVE DATE

Section 90. The State Finance Act is amended by adding Sections 5.675 and 5.676 as follows:

(30 ILCS 105/5.675 new)

Sec. 5.675. The Olmstead Implementation Fund.

(30 ILCS 105/5.676 new)

Sec. 5.676. The Older Adult Services Fund.

Section 99. Effective date. This Act takes effect July 1, 2008.".