Better Care Better Jobs Act

II 117TH CONGRESS 1ST SESSION S. 2210 To amend title XIX of the Social Security Act to expand access to home and community-based services (HCBS) under Medicaid, and for other purposes. IN THE SENATE OF THE UNITED STATES JUNE 24, 2021 Mr. CASEY (for himself, Mr. WYDEN, Mr. SCHUMER, Mrs. MURRAY, Ms. DUCKWORTH, Mr. BROWN, Ms. HASSAN, Mrs. GILLIBRAND, Mr. WHITE- HOUSE, Mr. DURBIN, Ms. BALDWIN, Mr. MARKEY, Mr. BLUMENTHAL, Ms. WARREN, Mr. REED, Mrs. SHAHEEN, Mr. VAN HOLLEN, Ms. SMITH, Mr. MERKLEY, Mr. BOOKER, Mr. LEAHY, Mr. PADILLA, Mr. SCHATZ, Ms. KLOBUCHAR, Mr. KAINE, Mr. BENNET, Mr. WARNOCK, Mr. SAND- ERS, Mr. PETERS, Mr. LUJA´N, Mr. HEINRICH, Ms. HIRONO, Ms. STABE- NOW, Mrs. FEINSTEIN, Ms. ROSEN, Mr. CARDIN, Mr. MURPHY, Ms. CANTWELL, Mr. MENENDEZ, and Mr. KING) introduced the following bill; which was read twice and referred to the Committee on Finance A BILL To amend title XIX of the Social Security Act to expand access to home and community-based services (HCBS) under Medicaid, and for other purposes. Be it enacted by the Senate and House of Representa- 1 tives of the United States of America in Congress assembled, 2 SECTION 1. SHORT TITLE; TABLE OF CONTENTS. 3 (a) SHORT TITLE.—This Act may be cited as the 4 ‘‘Better Care Better Jobs Act’’. 5 VerDate Sep 11 2014 02:23 Jul 08, 2021 Jkt 019200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6201 E:\BILLS\S2210.IS S2210 pbinns on DSKJLVW7X2PROD with BILLS 2 •S 2210 IS (b) TABLE OF CONTENTS.—The table of contents for 1 this Act is as follows: 2 Sec. 1. Short title; table of contents. Sec. 2. Definitions. TITLE I—EXPANDING ACCESS TO MEDICAID HOME AND COMMUNITY-BASED SERVICES Sec. 101. HCBS infrastructure improvement planning grants. Sec. 102. HCBS Infrastructure Improvement Program. Sec. 103. Reports; technical assistance; other administrative requirements. Sec. 104. Quality measurement and improvement. TITLE II—OTHER PROVISIONS Sec. 201. MACPAC study and report on Appendix K emergency home and community-based services (HCBS) 1915(c) waivers. Sec. 202. Making permanent the State option to extend protection under Med- icaid for recipients of home and community-based services against spousal impoverishment. Sec. 203. Permanent extension of Money Follows the Person Rebalancing dem- onstration. SEC. 2. DEFINITIONS. 3 In this Act: 4 (1) APPROPRIATE COMMITTEES OF CON- 5 GRESS.—The term ‘‘appropriate committees of Con- 6 gress’’ means the Committee on Energy and Com- 7 merce of the House of Representatives, the Com- 8 mittee on Education and Labor of the House of 9 Representatives, the Committee on Finance of the 10 Senate, the Committee on Health, Education, Labor 11 and Pensions of the Senate, and the Special Com- 12 mittee on Aging of the Senate. 13 (2) DIRECT CARE WORKER; DIRECT CARE 14 WORKFORCE.—The terms ‘‘direct care worker’’ and 15 ‘‘direct care workforce’’ mean— 16 VerDate Sep 11 2014 02:23 Jul 08, 2021 Jkt 019200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\S2210.IS S2210 pbinns on DSKJLVW7X2PROD with BILLS 3 •S 2210 IS (A) a direct support professional; 1 (B) a personal care attendant; 2 (C) a direct care worker; 3 (D) a home health aide; and 4 (E) any other relevant worker, as deter- 5 mined by the Secretary. 6 (3) ELIGIBLE INDIVIDUAL.—The term ‘‘eligible 7 individual’’ means an individual who is eligible for 8 and enrolled for medical assistance under a State 9 Medicaid program and includes an individual who 10 becomes eligible for medical assistance under a State 11 Medicaid program when removed from a waiting list. 12 (4) HEALTH PLAN.—The term ‘‘health plan’’ 13 means a group health plan or health insurance 14 issuer (as such terms are defined in section 2791 of 15 the Public Health Service Act (42 U.S.C. 300gg– 16 91)). 17 (5) HCBS PROGRAM IMPROVEMENT STATE.— 18 The term ‘‘HCBS program improvement State’’ 19 means a State with an HCBS infrastructure im- 20 provement plan approved by the Secretary under 21 section 101(d). 22 (6) HOME AND COMMUNITY-BASED SERV- 23 ICES.—The term ‘‘home and community-based serv- 24 VerDate Sep 11 2014 02:23 Jul 08, 2021 Jkt 019200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\S2210.IS S2210 pbinns on DSKJLVW7X2PROD with BILLS 4 •S 2210 IS ices’’ means any of the following (whether provided 1 on a fee-for-service, risk, or other basis): 2 (A) Home health care services authorized 3 under paragraph (7) of section 1905(a) of the 4 Social Security Act (42 U.S.C. 1396d(a)). 5 (B) Personal care services authorized 6 under paragraph (24) of such section. 7 (C) PACE services authorized under para- 8 graph (26) of such section. 9 (D) Home and community-based services 10 authorized under subsections (b), (c), (i), (j), 11 and (k) of section 1915 of such Act (42 U.S.C. 12 1396n), such services authorized under a waiver 13 under section 1115 of such Act (42 U.S.C. 14 1315), and such services provided through cov- 15 erage authorized under section 1937 of such 16 Act (42 U.S.C. 1396u–7). 17 (E) Case management services authorized 18 under section 1905(a)(19) of the Social Secu- 19 rity Act (42 U.S.C. 1396d(a)(19)) and section 20 1915(g) of such Act (42 U.S.C. 1396n(g)). 21 (F) Rehabilitative services, including those 22 related to behavioral health, described in section 23 1905(a)(13) of such Act (42 U.S.C. 24 1396d(a)(13)). 25 VerDate Sep 11 2014 02:23 Jul 08, 2021 Jkt 019200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\S2210.IS S2210 pbinns on DSKJLVW7X2PROD with BILLS 5 •S 2210 IS (G) Such other services specified by the 1 Secretary. 2 (7) INSTITUTIONAL SETTING.—The term ‘‘insti- 3 tutional setting’’ means— 4 (A) a skilled nursing facility (as defined in 5 section 1819(a) of the Social Security Act (42 6 U.S.C. 1395i–3(a))); 7 (B) a nursing facility (as defined in section 8 1919(a) of such Act (42 U.S.C. 1396r(a))); 9 (C) a long-term care hospital (as described 10 in section 1886(d)(1)(B)(iv) of such Act (42 11 U.S.C. 1395ww(d)(1)(B)(iv))); 12 (D) an institution (or distinct part thereof) 13 described in section 1905(d) of such Act (42 14 U.S.C. 1396d(d))); 15 (E) an institution (or distinct part thereof) 16 which is a psychiatric hospital (as defined in 17 section 1861(f) of such Act (42 U.S.C. 18 1395x(f))) or that provides inpatient psychiatric 19 services in another residential setting specified 20 by the Secretary; 21 (F) an institution (or distinct part thereof) 22 described in section 1905(i) of such Act (42 23 U.S.C. 1396d(i)); and 24 VerDate Sep 11 2014 02:23 Jul 08, 2021 Jkt 019200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\S2210.IS S2210 pbinns on DSKJLVW7X2PROD with BILLS 6 •S 2210 IS (G) any other relevant facility, as deter- 1 mined by the Secretary. 2 (8) MEDICAID PROGRAM.—The term ‘‘Medicaid 3 program’’ means, with respect to a State, the State 4 program under title XIX of the Social Security Act 5 (42 U.S.C. 1396 et seq.) (including any waiver or 6 demonstration under such title or under section 7 1115 of such Act (42 U.S.C. 1315) relating to such 8 title). 9 (9) SECRETARY.—The term ‘‘Secretary’’ means 10 the Secretary of Health and Human Services. 11 (10) STATE.—The term ‘‘State’’ has the mean- 12 ing given such term for purposes of title XIX of the 13 Social Security Act (42 U.S.C. 1396 et seq.). 14 TITLE I—EXPANDING ACCESS TO 15 MEDICAID HOME AND COM- 16 MUNITY-BASED SERVICES 17 SEC. 101. HCBS INFRASTRUCTURE IMPROVEMENT PLAN- 18 NING GRANTS. 19 (a) IN GENERAL.—Not later than 12 months after 20 the date of enactment of this Act, the Secretary shall 21 award planning grants to States for the purpose of ex- 22 panding access to home and community-based services and 23 strengthening the direct care workforce that provides such 24 services by developing HCBS infrastructure improvement 25 VerDate Sep 11 2014 02:23 Jul 08, 2021 Jkt 019200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\S2210.IS S2210 pbinns on DSKJLVW7X2PROD with BILLS 7 •S 2210 IS plans that meet the requirements of subsections (b) and 1 (c). 2 (b) CONTENT REQUIREMENTS.—In order to meet the 3 requirements of this subsection, an HCBS infrastructure 4 improvement plan shall include, with respect to a State, 5 the following: 6 (1) EXISTING MEDICAID HCBS LANDSCAPE.— 7 (A) ELIGIBILITY AND BENEFITS.—A de- 8 scription of— 9 (i) the existing standards, pathways, 10 and methodologies for eligibility for home 11 and community-based services, including 12 limits on assets and income; 13 (ii) the home and community-based 14 services available under the State Medicaid 15 program; and 16 (iii) utilization management standards 17 for such services. 18 (B) ACCESS.—An assessment of the extent 19 to which home and community-based services 20 are available to eligible individuals in the State, 21 including— 22 (i) estimates of the number of eligible 23 individuals who are on a waitlist for such 24 services; 25 VerDate Sep 11 2014 02:23 Jul 08, 2021 Jkt 019200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 E:\BILLS\S2210.IS S2210 pbinns on DSKJLVW7X2PROD with BILLS 8 •S 2210 IS (ii) estimates of the number of indi- 1 viduals who would be eligible individuals 2 but are not enrolled in the State Medicaid 3 program or on a waitlist for such services; 4 (iii) a description of the home and 5 community-based services not available 6 under the State Medicaid program; 7 (iv) a description of the populations 8 for which the State is unable to provide 9 home and community-based services under 10 the State Medicaid program that are pro- 11 vided under the Medicaid programs of 12 other States; and 13 (v) a description of barriers to access- 14 ing home and community-based services 15 identified by eligible individuals and fami- 16 lies of such individuals. 17 (C) UTILIZATION.—An assessment of the 18 utilization of home and community-based serv- 19 ices in the State. 20 (D) SERVICE DELIVERY STRUCTURES.—A 21 description of the service delivery structures for 22 providing home and community-based services 23 in the State, including with respect to the use 24 and models of self-direction, the provision of 25 VerDate Sep 11 2014 02:23 Jul 08, 2021 Jkt 019200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6201 E:\BILLS\S2210.IS S2210 pbinns on DSKJLVW7X2PROD with BILLS 9 •S 2210 IS services by agencies, the ownership of service 1 provider agencies, the use of managed care 2 versus fee-for-service to provide such services, 3 and the supports provided for family caregivers. 4 (E) WORKFORCE.—A description of the 5 characteristics of the direct care workforce that 6 provides home and community-based services, 7 including the number of full- and part-time di- 8 rect care workers, the average and range of di- 9 rect care worker wages, the benefits provided to 10 direct care workers, the turnover and vacancy 11 rates of direct care worker positions, the mem- 12 bership of direct care workers in labor organiza- 13 tions or professional organizations, and the 14 race, ethnicity, and gender of such workforce. 15 (F) PAYMENT RATES.—A description of 16 the payment rates for home and community- 17 based services, including when such rates were 18 last updated, an assessment of the extent to 19 which authorized services are not delivered as a 20 result of such rates being insufficient, and the 21 extent to which payment rates are passed 22 through to direct care worker wages. 23 (G) QUALITY.—A description of how the 24 quality of home and community-based services 25 VerDate Sep 11 2014 02:23 Jul 08, 2021 Jkt 019200 PO 00000 Frm 00009 Fmt 6652 Sfmt 6201 E:\BILLS\S2210.IS S2210 pbinns on DSKJLVW7X2PROD with BILLS 10 •S 2210 IS is measured and monitored, including how the 1 State uses beneficiary and family caregiver ex- 2 perience of care surveys to assess the quality of 3 home and community-based services provided 4 by the State. 5 (H) LONG-TERM SERVICES AND SUPPORTS 6 PROVIDED IN INSTITUTIONAL SETTINGS.—A de- 7 scription of— 8 (i) the extent to which eligible individ- 9 uals receive long-term services and sup- 10 ports in institutional settings in the State; 11 and 12 (ii) the populations provided such 13 services and supports. 14 (I) HCBS SHARE OF OVERALL MEDICAID 15 LTSS SPENDING.—For the most recent fiscal 16 year for which data is available, the percentage 17 of expenditures made by the State under the 18 State Medicaid program for long-term services 19 and supports that are for home and community- 20 based services. 21 (J) DEMOGRAPHIC DATA.—Each assess- 22 ment required under subparagraphs (B) and 23 (C), and the description required under sub- 24 paragraph (H)(ii) shall include, to the extent 25 VerDate Sep 11 2014 02:23 Jul 08, 2021 Jkt 019200 PO 00000 Frm 00010 Fmt 6652 Sfmt 6201 E:\BILLS\S2210.IS S2210 pbinns on DSKJLVW7X2PROD with BILLS 11 •S 2210 IS available, data disaggregated by disability sta- 1 tus, age, income, gender, race, ethnicity, geog- 2 raphy, primary language, sexual orientation, 3 gender identity, and type of service setting. 4 (2) ANNUAL MEASURES AND REPORTS.—A de- 5 scription of the State plan for— 6 (A) annually measuring and reporting 7 on— 8 (i) the availability and utilization of 9 home and community-based services; 10 (ii) the characteristics of the direct 11 care workforce that provides home and 12 community-based services and the race, 13 ethnicity, and gender of such workforce; 14 (iii) changes in payment rates for 15 home and community-based services; and 16 (iv) progress with respect to imple- 17 mentation of the activities, benchmarks, 18 and improvement activities provided under 19 subsection (jj) of section 1905 of the So- 20 cial Security Act (as added under section 21 102); and 22 (B) collecting and reporting disaggregated 23 data by disability status, age, income, gender, 24 race, ethnicity, geography, primary language, 25 VerDate Sep 11 2014 02:23 Jul 08, 2021 Jkt 019200 PO 00000 Frm 00011 Fmt 6652 Sfmt 6201 E:\BILLS\S2210.IS S2210 pbinns on DSKJLVW7X2PROD with BILLS 12 •S 2210 IS sexual orientation, gender identity, and type of 1 service setting for the information required by 2 clause (i) of subparagraph (A). 3 (3) IMPLEMENTATION AND GOALS FOR HCBS 4 IMPROVEMENTS.—A description of how the State 5 will— 6 (A) conduct the activities, benchmarks, 7 and improvement activities provided under sub- 8 section (jj) of section 1905 of the Social Secu- 9 rity Act (as added under section 102), including 10 how the State plans to meet the benchmarks 11 described in paragraph (5) of such subsection 12 and, if applicable, the additional HCBS im- 13 provement efforts described in paragraph (3) of 14 such subsection; 15 (B) identify and reduce barriers to access- 16 ing home and community-based services, includ- 17 ing for individuals in institutional settings, indi- 18 viduals experiencing homelessness or housing 19 instability, and [Text truncated for display. 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