SB0765sam003 95TH GENERAL ASSEMBLY

Sen. M. Maggie Crotty

Filed: 3/27/2007

09500SB0765sam003 LRB095 05416 HLH 34598 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 after Section 30 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 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, rather than institutional, long-term care services; (iii) to increase the ability of the State Medicaid program to assure continued provision of home and community-based long-term care service to eligible individuals who choose to transition from an institutional to a community setting; and (iv) to ensure that procedures are in place 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) 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 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 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 HCB 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.

"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 of any age in Illinois who (i) has resided, for a period of not less than 6 months, in an inpatient facility; (ii) is receiving Medicaid benefits for inpatient services furnished by the inpatient 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 an inpatient facility; (iv) who is deemed appropriate by the inter-disciplinary team for home or community-based services; and (v) who wants to transfer from an inpatient 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.

"Inpatient facility". The term "inpatient facility" 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 intermediate care facilities for the developmentally disabled (ICF/DDs) 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, in which no more than 4 unrelated individuals reside.

"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) Service 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.

(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 an amount equal to the amount of public funds that are, or would have been, expended for his or her care in an inpatient facility available to pay for his or her home and community-based long-term care services in a 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 or treatment plan that is reviewed by the individual treatment professionals 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 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 disability services plan or plan update under this Act and section 6071 of the Deficit Reduction Act of 2005 (P.L. 109-171), the Departments 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 an inpatient facility to a qualified residence. As part of this process, the Department of Human Services, Division of Developmental Disabilities shall review its Intermediate Care Facility for Developmental Disabilities (ICF/DD) downsizing rate methodology. During its review, the Division shall confer and consult with community stakeholders including individuals and entities who utilize or provide ICF/DD, CILA, and other services alternatives, those who advocate for individuals with developmental disabilities, and other State agencies having financial or regulatory roles involving these facilities. The Division shall consider and develop proposals and strategies that could provide incentives to reduction, downsizing, closure, or conversion of ICFs/DDs, such as changes in formulas and methodology, changes in the provider tax, funding levels, procedures for the determination of downsizing rates, and financing opportunities and programs to support conversions, or alternative uses, or both, of facilities. The Division shall develop a report by December 1, 2007. As appropriate, the Division shall develop estimates of the implementation costs of proposed strategies and incentives. 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 plans; and (iii) provide a procedure to evaluate expenditures under such budgets.

(d) The cost of home and community-based long-term care services provided under this Act shall be funded in accordance with the individual service or treatment plan, but shall not exceed 60% of the weighted average (weighted by Medicaid patient days) inpatient facility rates for the geographic grouping, by licensure category. Each qualified residence shall be paid 60% of the weighted average inpatient facility geographic group rate, based upon the inpatient facility geographic group in which it is located. The rates paid to qualified residences shall be reviewed semi-annually, and adjusted, if necessary, on April 1 and October 1 to assure that the rates coincide with 60% of weighted average inpatient facility geographic group's rates.

(e) In addition to Section 4.4 of the Community Services Act of 2004 (P.A. 094-0498), whenever any appropriation, or any portion of any appropriation, for any fiscal year related to the funding of an inpatient facility is reduced due to the redistribution of funds under this Act, 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 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 (such as in-home consumer/family supports; integrated, accessible, and affordable housing options and home modifications; etc.).

(f) 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 inpatient facilities; (ii) forcing any residents of inpatient facilities to involuntarily accept home and community-based long-term care services, or causing any residents of inpatient facilities to be involuntarily transferred or discharged; (iii) causing reductions in inpatient facility reimbursement rates in effect as of July 1, 2008; or (iv) causing any delay of inpatient facility payments. 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 an inpatient facility under Title XIX of the Social Security Act (42 U.S.C §1396a(a)(10)(A), §1396d(a)(15), §1396a(a)(1).

(g) 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 an inpatient 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 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 inpatient 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 inpatient 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 inpatient 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 (money follows the person); (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 2006 and 2007, 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; (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 an inpatient 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 inpatient 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 Section 5.675 as follows:

(30 ILCS 105/5.675 new)

Sec. 5.675. The Olmstead Implementation Fund.

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