
From the U.S. Code Online via GPO Access
[wais.access.gpo.gov]
[Laws in effect as of January 23, 2000]
[Document not affected by Public Laws enacted between
  January 23, 2000 and December 4, 2001]
[CITE: 42USC1396t]

 
                 TITLE 42--THE PUBLIC HEALTH AND WELFARE
 
                       CHAPTER 7--SOCIAL SECURITY
 
    SUBCHAPTER XIX--GRANTS TO STATES FOR MEDICAL ASSISTANCE PROGRAMS
 
Sec. 1396t. Home and community care for functionally disabled 
        elderly individuals
        

(a) ``Home and community care'' defined

    In this subchapter, the term ``home and community care'' means one 
or more of the following services furnished to an individual who has 
been determined, after an assessment under subsection (c) of this 
section, to be a functionally disabled elderly individual, furnished in 
accordance with an individual community care plan (established and 
periodically reviewed and revised by a qualified community care case 
manager under subsection (d) of this section):
        (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 managing 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'' defined

                           (1) In general

        In this subchapter, the term ``functionally disabled elderly 
    individual'' means an individual who--
            (A) is 65 years of age or older,
            (B) is determined to be a functionally disabled individual 
        under subsection (c) of this section, and
            (C) subject to section 1396a(f) of this title (as applied 
        consistent with section 1396a(r)(2) of this title), is receiving 
        supplemental security income benefits under subchapter XVI of 
        this chapter (or under a State plan approved under subchapter 
        XVI of this chapter) 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 discontinuance and who would, but for income or resources, 
        be eligible for medical assistance 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 remained 
        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 functionally disabled individuals, the term 
    ``functionally disabled elderly individual'' may include, 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 security income program under 
        subchapter XVI of this chapter);
            (ii) is determined to meet the test of functional 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 title) for medical assistance for home and community care, a 
    State may, at its option, provide for the determination of the 
    individual's anticipated medical expenses (to be deducted from 
    income) over a period of up to 6 months.

(c) Determinations of functional disability

                           (1) In general

        In this section, an individual is ``functionally disabled'' if 
    the individual--
            (A) is unable to perform without substantial 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 
        assistance (including verbal reminding or physical cueing) or 
        supervision at least 2 of the following 5 activities of daily 
        living: bathing, dressing, toileting, transferring, and eating; 
        or (ii) cognitively impaired so as to require substantial 
        supervision from another individual because he or she engages in 
        inappropriate behaviors that pose serious health or safety 
        hazards to himself or herself or others.

              (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) of this section (or another person on such 
        individual's behalf), the State shall provide for a 
        comprehensive functional assessment 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 subparagraph (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 assessment.

        (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, 
            common 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, designate 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 functionally disabled 
        elderly individual shall have the individual's assessment 
        periodically reviewed and revised not less often than once every 
        12 months.

        (E) Conduct of assessment by interdisciplinary teams

            An assessment under subparagraph (A) and a review under 
        subparagraph (D) must be conducted by an interdisciplinary team 
        designated by the State. The Secretary shall permit a State to 
        provide for assessments and reviews through teams under 
        contracts--
                (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 control interest 
            in, or direct or indirect affiliation or relationship with, 
            an entity that provides, community care or nursing facility 
            services.

        (F) Contents of assessment

            The interdisciplinary team must--
                (i) identify in each such assessment or review each 
            individual's functional disabilities and need for home and 
            community care, including information about the individual's 
            health status, home and community 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 subsection (d)(1) of this section.

        (G) Appeal procedures

            Each State which elects to provide home and community care 
        under this section must have in effect an appeals process for 
        individuals 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 community care plan'' 
    and ``ICCP'' mean, with respect to a functionally disabled elderly 
    individual, a written plan which--
            (A) is established, and is periodically reviewed and 
        revised, by a qualified case manager after a face-to-face 
        interview with the individual or primary caregiver and based 
        upon the most recent comprehensive functional assessment of such 
        individual conducted under subsection (c)(2) of this section;
            (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 providers (qualified to 
    provide home and community care under the State plan) which will 
    provide 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 individuals (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 community 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 management 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 
        individual or primary caregiver on how to contact 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 interest in, or 
        direct or indirect affiliation or relationship with, an entity 
        that provides, home and community care or nursing facility 
        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, established by the 
        Secretary, as to assure that--
                (i) such a manager is competent to perform case 
            management functions;
                (ii) individuals whose home and community care they 
            manage are not at risk of financial exploitation due to such 
            a manager; 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 maintenance 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 assistance 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 of this chapter (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 respect 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 services 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 fiscal 
        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 functionally disabled elderly in that fiscal year.

        (B) Reduction in payment if failure to maintain effort

            If the amount reported under subparagraph (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 reduction in payments to the State 
        under section 1396b(a) of this title in an amount equal to the 
        difference between the amounts so reported.

(f) Minimum requirements for home and community care

                          (1) Requirements

        Home and Community \1\ care provided under this section must 
    meet such requirements for individuals' rights and quality as are 
    published or developed by the Secretary under subsection (k) of this 
    section. Such requirements shall include--
---------------------------------------------------------------------------
    \1\ So in original. Probably should not be capitalized.
---------------------------------------------------------------------------
            (A) the requirement that individuals providing care are 
        competent to provide such care; and
            (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 advance, 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 determined incompetent) to participate 
        in planning care or changes in care.
            (B) The right to voice grievances with respect to services 
        that are (or fail to be) furnished 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 consequences 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 compensation for individuals 
        providing such care as will assure the availability and 
        continuity of competent individuals to provide such care for 
        functionally disabled individuals 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 reside and in which personal services (other 
        than merely board) are provided in conjunction 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 published or developed by 
        the Secretary under subsection (k) of this section;
            (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 community care under 
        this section in the setting, 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 requirements 
        regarding certification or licensure;
            (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 
        conjunction with residing in the setting in which home and 
        community care under this section 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 published or developed by 
        the Secretary under subsection (k) of this section;
            (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 community care under 
        this section in the setting, orally and in writing at the time 
        the individual first receives home and community 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 (relating to administration and 
        other matters) in the same manner as such requirements apply to 
        nursing facilities under such section; except that, in applying 
        the requirement of section 1396r(d)(2) of this title (relating 
        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 interests and 
                       exclusion of repeated violators

        A community care setting--
            (A) must disclose persons with an ownership or control 
        interest (including such persons as defined in section 1320a-
        3(a)(3) of this title) in the setting; and
            (B) may not have, as a person with an ownership 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 ownership or control interest in one or 
        more community care settings which have been found 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 subchapter, the State shall 
        be responsible for certifying the compliance of providers of 
        home and community care and community care settings with the 
        applicable requirements of subsections (f), (g) and (h) of this 
        section. The failure of the Secretary to issue regulations to 
        carry out this subsection shall not relieve a State of its 
        responsibility under this subsection.

        (B) Responsibilities of the Secretary

            The Secretary shall be responsible for certifying 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 subsections (f), (g) and (h) of this 
        section.

        (C) Frequency of certifications

            Certification of providers and settings under this 
        subsection shall occur no less frequently 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 community care must be based on a periodic 
        review of the provider's performance in providing the care 
        required under ICCP's in accordance with the requirements of 
        subsection (f) of this section.

        (B) Special reviews of compliance

            Where the Secretary has reason to question the compliance of 
        a provider of home or community care with any of the 
        requirements of subsection (f) of this section, the Secretary 
        may conduct a review of the provider and, on the basis of that 
        review, make independent and binding determinations concerning 
        the extent to which the provider meets such requirements.

               (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 community care setting of the time or date on which such a 
        survey is scheduled to be conducted is subject to a civil money 
        penalty of not to exceed $2,000. 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 
        proceeding under section 1320a-7a(a) of this title. The 
        Secretary shall review each State's procedures for scheduling 
        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 conducted based upon a 
        protocol which the Secretary has provided for under subsection 
        (k) of this section.

        (C) Prohibition of conflict of interest in survey team 
                membership

            A State and the Secretary may not use as a member of a 
        survey team under this paragraph 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 requirements of subsection (g) or 
        (h) of this section 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 
        subparagraph (A) by the State, in a sufficient number to allow 
        inferences about the adequacies of each State's surveys 
        conducted under subparagraph (A). In conducting 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 
        subsection (g) of this section, but the Secretary determines 
        that the setting does not meet such requirements, the 
        Secretary's determination as to the setting's noncompliance with 
        such requirements is binding and supersedes that of the State 
        survey.

        (E) Special surveys of compliance

            Where the Secretary has reason to question the compliance of 
        a community care setting with any of the requirements of 
        subsection (g) or (h) of this section, 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 
    requirements imposed on providers of community care or on community 
    care settings under subsections (f), (g) and (h) of this section.

     (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 subsection, for a process for the 
    receipt, review, and investigation of allegations of individual 
    neglect and abuse (including injuries of unknown source) by 
    individuals providing such care or in such setting and of 
    misappropriation of individual property by such individuals. The 
    State shall, after notice to the individual involved and a 
    reasonable opportunity for hearing for the individual to rebut 
    allegations, make a finding as to the accuracy of the allegations. 
    If the State finds that an individual has neglected or abused an 
    individual receiving community care or misappropriated such 
    individual's property, the State shall notify 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 beyond 
    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 activities

        (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 deficiencies,
                (ii) copies of cost reports (if any) of such providers 
            and settings filed under this subchapter,
                (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 substandard, the State 
            shall make a reasonable effort to notify promptly (I) 
            individuals receiving community care in that setting, and 
            (II) immediate family members of such individuals.

        (C) Access to fraud control units

            Each State shall provide its State medicaid fraud and abuse 
        control unit (established 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 community care

                         (1) State authority

        (A) In general

            If a State finds, on the basis of a review under subsection 
        (i)(2) of this section or otherwise, that a provider of home or 
        community care no longer meets the requirements of this section, 
        the State may terminate the provider's participation under the 
        State plan and may provide in addition for a civil money 
        penalty. Nothing in this subparagraph shall be construed as 
        restricting the remedies available to a State to remedy a 
        provider's deficiencies. If the State finds that a provider 
        meets such requirements but, as of a previous period, did not 
        meet such requirements, the State may provide for a civil money 
        penalty under paragraph (2)(A) for the period during which it 
        finds that the provider was not in compliance with such 
        requirements.

        (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 
            penalty 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 
            subsection (i)(3)(A) of this section) may be applied to 
            reimbursement of individuals for personal funds lost due to 
            a failure of home or community care providers to meet the 
            requirements 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 
            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 
            incrementally more severe penalties for repeated or 
            uncorrected 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 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 Secretary 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 addition, for a civil money penalty under 
        subparagraph (C). If the Secretary finds that a provider meets 
        such requirements but, as of a previous period, did not meet 
        such requirements, 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 review under 
        subsection (i)(2) of this section or otherwise that a home or 
        community care provider no longer meets the requirements of this 
        section, 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 proceeding 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 criteria 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 incrementally 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 
        subparagraph (B), for the provision of home and community care 
        and for community care settings, including--
                (i) the requirements of subsection (c)(2) of this 
            section (relating to comprehensive functional assessments, 
            including the use of assessment instruments), of subsection 
            (d)(2)(E) of this section (relating to qualifications for 
            qualified case managers), of subsection (f) of this section 
            (relating to minimum requirements for home and community 
            care), of subsection (g) of this section (relating to 
            minimum requirements for small community care settings), and 
            of subsection (h) of this section (relating to minimum 
            requirements for large community care settings), and
                (ii) survey protocols (for use under subsection 
            (i)(3)(A) of this section) which relate to such 
            requirements.

        (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, 
        inappropriate involuntary restraint, and the provision of health 
        care services by unqualified 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 evaluating and assuring 
        the quality of community 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 subsection shall not be 
    delegated to States.

     (4) No prevention of more stringent requirements 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 community 
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 purposes 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 assistance for 
    expenditures for home and community care under this section must 
    provide home and community care specified under the Individual 
    Community Care Plan under subsection (d) of this section to 
    individuals described in subsection (b) of this section for the 
    duration of the election period, 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 
    Secretary, for the provision of home and community care under this 
    section.

                    (3) Limitation on eligibility

        The State may limit eligibility for home and community care 
    under this section during an election period under paragraph (2) to 
    reasonable 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 
    election period under paragraph (2). The limitation under this 
    paragraph shall take into account 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-income elderly individuals.

(Aug. 14, 1935, ch. 531, title XIX, Sec. 1929, as added Pub. L. 101-508, 
title IV, Sec. 4711(b), Nov. 5, 1990, 104 Stat. 1388-174; amended Pub. 
L. 106-113, div. B, Sec. 1000(a)(6) [title VI, Sec. 608(v)], Nov. 29, 
1999, 113 Stat. 1536, 1501A-398.)

                          Codification

    Pub. L. 101-508, title IV, Sec. 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 section 1930, could not be executed 
because there was no section 1929.


                               Amendments

    1999--Subsec. (c)(2)(E)(i), (ii). Pub. L. 106-113, Sec. 1000(a)(6) 
[title VI, Sec. 608(v)(1)], realigned margins.
    Subsec. (k)(1)(A)(i). Pub. L. 106-113, Sec. 1000(a)(6) [title VI, 
Sec. 608(v)(2)], substituted ``large community care settings),'' for 
``large community care settings,''.
    Subsec. (l). Pub. L. 106-113, Sec. 1000(a)(6) [title VI, 
Sec. 608(v)(3)], substituted ``Statewideness'' for ``State wideness''.


                             Effective Date

    Section applicable to home and community care furnished on or after 
July 1, 1991, without regard to whether or not final regulations to 
carry out the amendments 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.

                  Section Referred to in Other Sections

    This section is referred to in section 1396d of this title.
