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Introduced Version House Bill 3268 History

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Key: Green = existing Code. Red = new code to be enacted
H. B. 3268


(By Delegates Perry, Moore, Marshall, Mahan,

Guthrie, Williams, Kominar, Perdue,

Fleischauer and Moye)

[Introduced March 20, 2009; referred to the

Committee on Health and Human Resources then Finance.]



A BILL to amend the Code of West Virginia, 1931, as amended, by adding thereto a new article, designated §9-4E-1, §9-4E-2, §9- 4E-3, §9-4E-4, §9-4E-5, §9-4E-6, §9-4E-7, §9-4E-8, §9-4E-9 and §9-4E-10, all relating to funding for community-based services and supports for individuals with disabilities; establishing the Long-Term Care Redistribution Act; providing definitions for certain terms; requiring the Department of Health and Human Resources to modify certain policies to improve community-based long-term services; to establish an appeals process; legislative oversight; and requiring legislative rules and establishing a time line.

Be it enacted by the Legislature of West Virginia:

That the Code of West Virginia, 1931, as amended, be amended by adding thereto a new article, designated §9-4E-1, §9-4E-2, §9- 4E-3, §9-4E-4, §9-4E-5, §9-4E-6 §9-4E-7, §9-4E-8, §9-4E-9 and §9- 4E-10, all to read as follows:

ARTICLE 4E. LONG TERM CARE REDISTRIBUTION ACT.

§9-4E-1. Title.

This article shall be known as and may be cited as the "Long Term Care Redistribution Act".

§9-4E-2. Definitions.

As used in this article:

(1) "Community-based services and supports" means services and supports designed to assist the consumer in accomplishing activities of daily living and health-related tasks in order to live in the most integrated setting. These services and supports are furnished to an individual:

(A) Under a plan of services that is based on personal choice and a functional assessment and that is agreed upon by the individual or the individual's representative;

(B) Under existing models or new models developed as part of enduring improvements in community-based services and supports; and

(C) Are designed to assist West Virginians with disabilities and seniors to remain independent and avoid inappropriate institutionalization.

(2) "Consumer" means an eligible individual who has a severe chronic or permanent disability that precludes or significantly impairs the individual's independent performance of essential activities of daily living, self-care, or mobility. This includes an individual with a cognitive, sensory, mental health, or physical
disability who:
(A) Has a functional need that limits the individual's ability to perform one or more activities of daily living;

(B) Requires short term to ongoing services and supports or episodic or short-term crisis assistance; or

(C) Needs assistance with the performance of health-related tasks.

(3) "Department" means the Department of Health and Human Resources.

(4) "Functional need" means the need for services and supports based on abilities and limitations of the consumer, regardless of medical diagnosis or other category of disability.

(5) "Institution" means nursing facility, intermediate care facility for persons with mental retardation, psychiatric hospital, or other institutional setting.

(6) "Legal Representative" means a person who has legal authority to make decisions and sign for an eligible individual including, but not limited to, a guardian, conservator, power of attorney, medical power of attorney, or health care surrogate.

(7) "Long-Term Care services" means the range of services that are delivered in the home, community or an institution to people with functional or cognitive limitations and require assistance with performing activities of daily living and include services provided in a nursing home or in an individual's home by a nurse,
health aide or personal attendant.
(8) "Other service options" means methods other than an agency-provider model including vouchers, cash and counseling, or use of a fiscal agent to assist in obtaining services.

§9-4E-3. Purpose.

The intent of this legislation is to achieve the following goals:

(a) Increasing the use of home and community-based services, rather than institutional care;

(b) Eliminating barriers or mechanisms that prevent or restrict the flexible use of Medicaid funds to enable Medicaid- eligible people to receive needed supports in the most integrated setting;

(c) Increasing the ability of the state's Medicaid program to assure continued home and community-based supports for people moving from an institutional setting or preventing institutionalization; and

(d) Ensuring that procedures are in place to provide quality assurance to participants and to provide for continuous quality improvement in services.

§9-4E-4. Implementation of Long Term-Care Redistribution.

(a) The department shall design and implement enduring improvements in community-based long-term services and support systems to enable eligible individuals with disabilities to live
and participate in community life, particularly with respect to those practices that will ensure the successful transition of eligible individuals who:
(1) Reside in a nursing facility, intermediate care facility for persons with mental retardation, psychiatric hospital, or other institutional setting; and

(2) Would prefer to live in the community and could do so, provided that they have the appropriate community-based services and supports that would enable them to live and function in the community setting.

(b) The department shall develop and implement a request for proposal process by which local entities may be selected and authorized to administer local long-term care and community-based services.

(c) The department shall utilize the Olmstead Council as the planning and oversight committee to assist in the development and implementation of all aspects of a comprehensive program of community-based services and supports, including program standards, eligibility determination instrument and protocol, and a quality assurance program.

(d) The department shall identify and educate eligible individuals residing in long-term care facilities about the opportunity to receive community-based services and supports.

(e) The department shall ensure that each eligible individual
identified has the opportunity and information to make an informed choice regarding whether to transition to the community with community-based services.
(f) A consumer receiving services and supports under this article may receive assistance if the consumer needs home- and community-based services and supports in order to move into the community.

§9-4E-5. Consumer Direction and Self-Determination.

(a) To the maximum extent possible, a consumer or their legal representative shall design, select, manage, and control his or her own community-based services and supports in order to move into the community.

(b) The department will design and implement a voucher program that permits consumers to direct, manage and pay for their home and community-based care services. The agency shall apply for any federal waivers required to implement this program. The cost of providing those services pursuant to the voucher program shall be limited to no more than ninety percent of the cost of providing similar services under the Medicaid program and shall be designed to provide:

(1) Program flexibility that permits consumers to design, manage and pay for their own long-term care services, including hiring and firing their community support workers and professionals;

(2) Mechanisms to assure quality of service;

(3) An eligibility procedure which presumes the capability of a consumer (or legal representative) to direct, coordinate and manage appropriate long-term care services needed and the amount of any copayment to be made by the consumer, based on income criteria;

(4) Responsibility of the department to provide substantial and compelling evidence why an individual should not be determined eligible before such a ruling can be made; and

(5) A payment system by which a consumer receives a voucher in the amount required to pay for their long-term care services on a regular determined schedule. The amount of the voucher shall not be more than ninety percent of the cost of providing the same or comparable services under Medicaid, less the amount of any copayment to be paid by the consumer.

§9-4E-6. Standards and requirements.

(a) The department will engage in system reform activities to redistribute expenditures for long-term services through administrative actions that reduce reliance on institutional forms of service and increase community capacity which include:

(1) Long-term care service and community-based service models that are alternatives to nursing facility, intermediate care facility for persons with mental retardation, psychiatric hospital, and other institutional models, provided that the alternative models are comparable in cost or more cost effective than the
nursing home models which provide equivalent services. Any alternative long-term care service models shall be financially viable, cost effective, promote consumer independence, participation and noninstitutionalization and, when appropriate, consumer direction and may include one or any combination of community-based services and supports;
(2) Mechanisms to reduce the number of institutional beds, including a schedule for those reductions and recommendations for various sources of funding for payments to nursing homes to reduce the number of licensed beds;

(3) Greater cooperation between institutional and community providers and providers to promote effective transitions; and

(4) Changes in the Medicaid state plan as needed to implement the system reform activities.

(b) Community-based services and supports shall be provided in the most integrated community setting but may not be provided in a nursing facility, intermediate care facility for the mentally retarded, psychiatric hospital, or other congregate setting.

(c) The department shall maintain an adequate quality improvement system so that eligible individuals receive adequate services and supports.

§9-4E-7. Funding.

(a) The department shall modify policies and procedures to allow the administrative transfer or integration of funds from
state budget accounts that are obligated for expenditures for long- term care facilities to other accounts for the obligation for the provision of community-based services and supports when an eligible individual transitions from residing in such a facility to residing in the community.
(b) The department shall maximize all existing funding and funding alternatives including, but not limited to:

(1) Medicaid and Medicare;

(2) Flexible use of reverse mortgages; and

(3) Private insurance coverage for long-term care and community-based services.

§9-4E-8. Individual support plans; appeal.

(a) A mutually-agreed-upon, individualized support plan shall be jointly developed by the consumer and the department or its designee for each consumer of community-based services and supports as prescribed by the community-based program for which they are eligible.

(b) A consumer who is dissatisfied with the administration or provision of his or her community-based services and supports shall have appeal rights through a responsive and efficient due process system.

§9-4E-9. Legislative Oversight; required reports.

The department shall report to the Legislative Oversight Commission on Long-Term Care every three months concerning the
progress of policy changes to eliminate the institutional bias and the status of those eligible individuals who choose to move to community-based settings. The first report is due on or before September 1, 2009.
§9-4E-10. Legislative rules.

On or before the filing deadline for a legislative rule to be considered during the 2010 Regular Session of the West Virginia Legislature, the Secretary of the Department of Health and Human Resources, in consultation with the Olmstead Council, shall propose rules for legislative approval in accordance with the provisions of article three, chapter twenty-nine-a of this code to implement the provisions of this article, including, but not limited to, program components, standards and requirements as set forth in section three of this article, and an appeal process as set forth in section four of this article.




NOTE: The purpose of the bill is to create a long-term care system that supports community based services, patient centered care, establishes a voucher program for consumers to use for their care in the most flexible environment possible; to establish an appeal process; to establish rule-making authority and to establish reporting requirements.

Strike-throughs indicate language that would be stricken from the present law, and underscoring indicates new language that would be added.
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