42 U.S.C. § 1396n — Compliance with State plan and pay-

Page 4222 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 1396n for payment under subchapter XVIII, or sub- mitted claims for payment under subchapter XVIII which aggregated less than the amount of overpayments made to him, and (B)(i) from whom the Secretary has been unable to re- cover overpayments received in violation of the terms of such assignment, or (ii) from whom the Secretary has been unable to collect the information necessary to enable him to de- termine the amount (if any) of the overpay- ments made to such person under subchapter XVIII. (b) Reductions in payments to and by States The Secretary may (subject to the remaining provisions of this section) reduce payment to a State under this subchapter for any quarter by an amount equal to the lesser of the Federal matching share of payments to any institution or person specified in subsection (a), or the total overpayments to such institution or person under subchapter XVIII, and may require the State to reduce its payment to such institution or person by such amount. (c) Notice The Secretary shall not make any adjustment in the payment to a State, nor require any ad- justment in the payment to an institution or person, pursuant to subsection (b) until after he has provided adequate notice (which shall be not less than 60 days) to the State agency and the institution or person. (d) Regulations The Secretary shall by regulation provide pro- cedures for implementation of this section, which procedures shall (1) determine the amount of the Federal payment to which the institution or person would otherwise be entitled under this section which shall be treated as a setoff against overpayments under subchapter XVIII, and (2) assure the restoration to the institution or per- son of amounts withheld under this section which are ultimately determined to be in excess of overpayments under subchapter XVIII and to which the institution or person would otherwise be entitled under this subchapter. (e) Restoration to trust funds of recovered amounts The Secretary shall restore to the trust funds established under sections 1395i and 1395t of this title, as appropriate, amounts recovered under this section as setoffs against overpayments under subchapter XVIII. (f) Liability of States for withheld payments Notwithstanding any other provision of this subchapter, an institution or person shall not be entitled to recover from any State any amount in payment for medical care and services under this subchapter which is withheld by the State agency pursuant to an order by the Secretary under subsection (b). (Aug. 14, 1935, ch. 531, title XIX, § 1914, as added Pub. L. 96–499, title IX, § 905(d), Dec. 5, 1980, 94 Stat. 2618.) § 1396n. Compliance with State plan and pay- ment provisions (a) Activities deemed as compliance A State shall not be deemed to be out of com- pliance with the requirements of paragraphs (1), (10), or (23) of section 1396a(a) of this title solely by reason of the fact that the State (or any po- litical subdivision thereof)— (1) has entered into— (A) a contract with an organization which has agreed to provide care and services in addition to those offered under the State plan to individuals eligible for medical as- sistance who reside in the geographic area served by such organization and who elect to obtain such care and services from such or- ganization, or by reason of the fact that the plan provides for payment for rural health clinic services only if those services are pro- vided by a rural health clinic; or (B) arrangements through a competitive bidding process or otherwise for the pur- chase of laboratory services referred to in section 1396d(a)(3) of this title or medical de- vices if the Secretary has found that— (i) adequate services or devices will be available under such arrangements, and (ii) any such laboratory services will be provided only through laboratories— (I) which meet the applicable require- ments of section 1395x(e)(9) of this title or paragraphs (16) and (17) of section 1395x(s) of this title, and such additional requirements as the Secretary may re- quire, and (II) no more than 75 percent of whose charges for such services are for services provided to individuals who are entitled to benefits under this subchapter or under part A or part B of subchapter XVIII; or (2) restricts for a reasonable period of time the provider or providers from which an indi- vidual (eligible for medical assistance for items or services under the State plan) can re- ceive such items or services, if— (A) the State has found, after notice and opportunity for a hearing (in accordance with procedures established by the State), that the individual has utilized such items or services at a frequency or amount not medically necessary (as determined in ac- cordance with utilization guidelines estab- lished by the State), and (B) under such restriction, individuals eli- gible for medical assistance for such services have reasonable access (taking into account geographic location and reasonable travel time) to such services of adequate quality. (b) Waivers to promote cost-effectiveness and ef- ficiency The Secretary, to the extent he finds it to be cost-effective and efficient and not inconsistent with the purposes of this subchapter, may waive such requirements of section 1396a of this title (other than subsection (s)) (other than sections 1396a(a)(15), 1396a(bb), and 1396a(a)(10)(A) of this title insofar as it requires provision of the care and services described in section 1396d(a)(2)(C) of this title) as may be necessary for a State— (1) to implement a primary care case-man- agement system or a specialty physician serv- ices arrangement which restricts the provider from (or through) whom an individual (eligible for medical assistance under this subchapter) Page 4223 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 1396n can obtain medical care services (other than in emergency circumstances), if such restric- tion does not substantially impair access to such services of adequate quality where medi- cally necessary, (2) to allow a locality to act as a central broker in assisting individuals (eligible for medical assistance under this subchapter) in selecting among competing health care plans, if such restriction does not substantially im- pair access to services of adequate quality where medically necessary, (3) to share (through provision of additional services) with recipients of medical assistance under the State plan cost savings resulting from use by the recipient of more cost-effec- tive medical care, and (4) to restrict the provider from (or through) whom an individual (eligible for medical as- sistance under this subchapter) can obtain services (other than in emergency cir- cumstances) to providers or practitioners who undertake to provide such services and who meet, accept, and comply with the reimburse- ment, quality, and utilization standards under the State plan, which standards shall be con- sistent with the requirements of section 1396r–4 of this title and are consistent with ac- cess, quality, and efficient and economic pro- vision of covered care and services, if such re- striction does not discriminate among classes of providers on grounds unrelated to their demonstrated effectiveness and efficiency in providing those services and if providers under such restriction are paid on a timely basis in the same manner as health care practitioners must be paid under section 1396a(a)(37)(A) of this title. No waiver under this subsection may restrict the choice of the individual in receiving services under section 1396d(a)(4)(C) of this title. Sub- section (h)(2) shall apply to a waiver under this subsection. (c) Waiver respecting medical assistance require- ment in State plan; scope, etc.; ‘‘habilitation services’’ defined; imposition of certain regu- latory limits prohibited; computation of ex- penditures for certain disabled patients; co- ordinated services; substitution of partici- pants (1) The Secretary may by waiver provide that a State plan approved under this subchapter may include as ‘‘medical assistance’’ under such plan payment for part or all of the cost of home or community-based services (other than room and board) approved by the Secretary which are provided pursuant to a written plan of care to individuals with respect to whom there has been a determination that but for the provision of such services the individuals would require the level of care provided in a hospital or a nursing facility or intermediate care facility for the mentally retarded the cost of which could be re- imbursed under the State plan. For purposes of this subsection, the term ‘‘room and board’’ shall not include an amount established under a method determined by the State to reflect the portion of costs of rent and food attributable to an unrelated personal caregiver who is residing in the same household with an individual who, but for the assistance of such caregiver, would require admission to a hospital, nursing facility, or intermediate care facility for the mentally retarded. (2) A waiver shall not be granted under this subsection unless the State provides assurances satisfactory to the Secretary that— (A) necessary safeguards (including adequate standards for provider participation) have been taken to protect the health and welfare of individuals provided services under the waiver and to assure financial accountability for funds expended with respect to such serv- ices; (B) the State will provide, with respect to individuals who— (i) are entitled to medical assistance for inpatient hospital services, nursing facility services, or services in an intermediate care facility for the mentally retarded under the State plan, (ii) may require such services, and (iii) may be eligible for such home or com- munity-based care under such waiver, for an evaluation of the need for inpatient hos- pital services, nursing facility services, or services in an intermediate care facility for the mentally retarded; (C) such individuals who are determined to be likely to require the level of care provided in a hospital, nursing facility, or intermediate care facility for the mentally retarded are in- formed of the feasible alternatives, if available under the waiver, at the choice of such indi- viduals, to the provision of inpatient hospital services, nursing facility services, or services in an intermediate care facility for the men- tally retarded; (D) under such waiver the average per capita expenditure estimated by the State in any fis- cal year for medical assistance provided with respect to such individuals does not exceed 100 percent of the average per capita expenditure that the State reasonably estimates would have been made in that fiscal year for expendi- tures under the State plan for such individuals if the waiver had not been granted; and (E) the State will provide to the Secretary annually, consistent with a data collection plan designed by the Secretary, information on the impact of the waiver granted under this subsection on the type and amount of medical assistance provided under the State plan and on the health and welfare of recipients. (3) A waiver granted under this subsection may include a waiver of the requirements of sec- tion 1396a(a)(1) of this title (relating to statewideness), section 1396a(a)(10)(B) of this title (relating to comparability), and section 1396a(a)(10)(C)(i)(III) of this title (relating to in- come and resource rules applicable in the com- munity). A waiver under this subsection (other than a waiver described in subsection (h)(2)) shall be for an initial term of three years and, upon the request of a State, shall be extended for additional five-year periods unless the Sec- retary determines that for the previous waiver period the assurances provided under paragraph (2) have not been met. A waiver may provide, with respect to post-eligibility treatment of in- Page 4224 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 1396n come of all individuals receiving services under that waiver, that the maximum amount of the individual’s income which may be disregarded for any month for the maintenance needs of the individual may be an amount greater than the maximum allowed for that purpose under regu- lations in effect on July 1, 1985. (4) A waiver granted under this subsection may, consistent with paragraph (2)— (A) limit the individuals provided benefits under such waiver to individuals with respect to whom the State has determined that there is a reasonable expectation that the amount of medical assistance provided with respect to the individual under such waiver will not ex- ceed the amount of such medical assistance provided for such individual if the waiver did not apply, and (B) provide medical assistance to individuals (to the extent consistent with written plans of care, which are subject to the approval of the State) for case management services, home- maker/home health aide services and personal care services, adult day health services, habili- tation services, respite care, and such other services requested by the State as the Sec- retary may approve and for day treatment or other partial hospitalization services, psycho- social rehabilitation services, and clinic serv- ices (whether or not furnished in a facility) for individuals with chronic mental illness. Except as provided under paragraph (2)(D), the Secretary may not restrict the number of hours or days of respite care in any period which a State may provide under a waiver under this subsection. (5) For purposes of paragraph (4)(B), the term ‘‘habilitation services’’— (A) means services designed to assist indi- viduals in acquiring, retaining, and improving the self-help, socialization, and adaptive skills necessary to reside successfully in home and community based settings; and (B) includes (except as provided in subpara- graph (C)) prevocational, educational, and sup- ported employment services; but (C) does not include— (i) special education and related services (as such terms are defined in section 1401 of title 20) which otherwise are available to the individual through a local educational agen- cy; and (ii) vocational rehabilitation services which otherwise are available to the indi- vidual through a program funded under sec- tion 730 of title 29. (6) The Secretary may not require, as a condi- tion of approval of a waiver under this section under paragraph (2)(D), that the actual total ex- penditures for home and community-based serv- ices under the waiver (and a claim for Federal fi- nancial participation in expenditures for the services) cannot exceed the approved estimates for these services. The Secretary may not deny Federal financial payment with respect to serv- ices under such a waiver on the ground that, in order to comply with paragraph (2)(D), a State has failed to comply with such a requirement. (7)(A) In making estimates under paragraph (2)(D) in the case of a waiver that applies only to individuals with a particular illness or condition who are inpatients in, or who would require the level of care provided in, hospitals, nursing fa- cilities, or intermediate care facilities for the mentally retarded, the State may determine the average per capita expenditure that would have been made in a fiscal year for those individuals under the State plan separately from the ex- penditures for other individuals who are inpa- tients in, or who would require the level of care provided in, those respective facilities. (B) In making estimates under paragraph (2)(D) in the case of a waiver that applies only to individuals with developmental disabilities who are inpatients in a nursing facility and whom the State has determined, on the basis of an evaluation under paragraph (2)(B), to need the level of services provided by an intermediate care facility for the mentally retarded, the State may determine the average per capita ex- penditures that would have been made in a fiscal year for those individuals under the State plan on the basis of the average per capita expendi- tures under the State plan for services to indi- viduals who are inpatients in an intermediate care facility for the mentally retarded, without regard to the availability of beds for such inpa- tients. (C) In making estimates under paragraph (2)(D) in the case of a waiver to the extent that it applies to individuals with mental retardation or a related condition who are resident in an in- termediate care facility for the mentally re- tarded the participation of which under the State plan is terminated, the State may deter- mine the average per capita expenditures that would have been made in a fiscal year for those individuals without regard to any such termi- nation. (8) The State agency administering the plan under this subchapter may, whenever appro- priate, enter into cooperative arrangements with the State agency responsible for admin- istering the program for children with special health care needs under subchapter V in order to assure improved access to coordinated services to meet the needs of such children. (9) In the case of any waiver under this sub- section which contains a limit on the number of individuals who shall receive home or commu- nity-based services, the State may substitute additional individuals to receive such services to replace any individuals who die or become ineli- gible for services under the State plan. (10) The Secretary shall not limit to fewer than 200 the number of individuals in the State who may receive home and community-based services under a waiver under this subsection. (d) Home and community-based services for el- derly (1) Subject to paragraph (2), the Secretary shall grant a waiver to provide that a State plan approved under this subchapter shall include as ‘‘medical assistance’’ under such plan payment for part or all of the cost of home or commu- nity-based services (other than room and board) which are provided pursuant to a written plan of care to individuals 65 years of age or older with respect to whom there has been a determination that but for the provision of such services the Page 4225 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 1396n individuals would be likely to require the level of care provided in a skilled nursing facility or intermediate care facility the cost of which could be reimbursed under the State plan. For purposes of this subsection, the term ‘‘room and board’’ shall not include an amount established under a method determined by the State to re- flect the portion of costs of rent and food attrib- utable to an unrelated personal caregiver who is residing in the same household with an indi- vidual who, but for the assistance of such care- giver, would require admission to a hospital, nursing facility, or intermediate care facility for the mentally retarded. (2) A waiver shall not be granted under this subsection unless the State provides assurances satisfactory to the Secretary that— (A) necessary safeguards (including adequate standards for provider participation) have been taken to protect the health and welfare of individuals provided services under the waiver and to assure financial accountability for funds expended with respect to such serv- ices; (B) with respect to individuals 65 years of age or older who— (i) are entitled to medical assistance for skilled nursing or intermediate care facility services under the State plan, (ii) may require such services, and (iii) may be eligible for such home or com- munity-based services under such waiver, the State will provide for an evaluation of the need for such skilled nursing facility or inter- mediate care facility services; and (C) such individuals who are determined to be likely to require the level of care provided in a skilled nursing facility or intermediate care facility are informed of the feasible alter- natives to the provision of skilled nursing fa- cility or intermediate care facility services, which such individuals may choose if available under the waiver. Each State with a waiver under this subsection shall provide to the Secretary annually, con- sistent with a reasonable data collection plan designed by the Secretary, information on the impact of the waiver granted under this sub- section on the type and amount of medical as- sistance provided under the State plan and on the health and welfare of recipients. (3) A waiver granted under this subsection may include a waiver of the requirements of sec- tion 1396a(a)(1) of this title (relating to statewideness), section 1396a(a)(10)(B) of this title (relating to comparability), and section 1396a(a)(10)(C)(i)(III) of this title (relating to in- come and resource rules applicable in the com- munity). Subject to a termination by the State (with notice to the Secretary) at any time, a waiver under this subsection (other than a waiv- er described in subsection (h)(2)) shall be for an initial term of 3 years and, upon the request of a State, shall be extended for additional 5-year periods unless the Secretary determines that for the previous waiver period the assurances pro- vided under paragraph (2) have not been met. A waiver may provide, with respect to post-eligi- bility treatment of income of all individuals re- ceiving services under the waiver, that the max- imum amount of the individual’s income which may be disregarded for any month is equal to the amount that may be allowed for that pur- pose under a waiver under subsection (c). (4) A waiver under this subsection may, con- sistent with paragraph (2), provide medical as- sistance to individuals for case management services, homemaker/home health aide services and personal care services, adult day health services, respite care, and other medical and so- cial services that can contribute to the health and well-being of individuals and their ability to reside in a community-based care setting. (5)(A) In the case of a State having a waiver approved under this subsection, notwithstanding any other provision of section 1396b of this title to the contrary, the total amount expended by the State for medical assistance with respect to skilled nursing facility services, intermediate care facility services, and home and community- based services under the State plan for individ- uals 65 years of age or older during a waiver year under this subsection may not exceed the pro- jected amount determined under subparagraph (B). (B) For purposes of subparagraph (A), the pro- jected amount under this subparagraph is the sum of the following: (i) The aggregate amount of the State’s med- ical assistance under this subchapter for skilled nursing facility services and inter- mediate care facility services furnished to in- dividuals who have attained the age of 65 for the base year increased by a percentage which is equal to the lesser of 7 percent times the number of years (rounded to the nearest quar- ter of a year) beginning after the base year and ending at the end of the waiver year in- volved or the sum of— (I) the percentage increase (based on an appropriate market-basket index rep- resenting the costs of elements of such serv- ices) between the beginning of the base year and the beginning of the waiver year in- volved, plus (II) the percentage increase between the beginning of the base year and the beginning of the waiver year involved in the number of residents in the State who have attained the age of 65, plus (III) 2 percent for each year (rounded to the nearest quarter of a year) beginning after the base year and ending at the end of the waiver year. (ii) The aggregate amount of the State’s medical assistance under this subchapter for home and community-based services for indi- viduals who have attained the age of 65 for the base year increased by a percentage which is equal to the lesser of 7 percent times the num- ber of years (rounded to the nearest quarter of a year) beginning after the base year and end- ing at the end of the waiver year involved or the sum of— (I) the percentage increase (based on an appropriate market-basket index rep- resenting the costs of elements of such serv- ices) between the beginning of the base year and the beginning of the waiver year in- volved, plus (II) the percentage increase between the beginning of the base year and the beginning Page 4226 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 1396n of the waiver year involved in the number of residents in the State who have attained the age of 65, plus (III) 2 percent for each year (rounded to the nearest quarter of a year) beginning after the base year and ending at the end of the waiver year. (iii) The Secretary shall develop and promul- gate by regulation (by not later than October 1, 1989)— (I) a method, based on an index of appro- priately weighted indicators of changes in the wages and prices of the mix of goods and services which comprise both skilled nursing facility services and intermediate care facil- ity services (regardless of the source of pay- ment for such services), for projecting the percentage increase for purposes of clause (i)(I); (II) a method, based on an index of appro- priately weighted indicators of changes in the wages and prices of the mix of goods and services which comprise home and commu- nity-based services (regardless of the source of payment for such services), for projecting the percentage increase for purposes of clause (ii)(I); and (III) a method for projecting, on a State specific basis, the percentage increase in the number of residents in each State who are over 65 years of age for any period. The Secretary shall develop (by not later than October 1, 1989) a method for projecting, on a State-specific basis, the percentage increase in the number of residents in each State who are over 65 years of age for any period. Effective on and after the date the Secretary promul- gates the regulation under clause (iii), any ref- erence in this subparagraph to the ‘‘lesser of 7 percent’’ shall be deemed to be a reference to the ‘‘greater of 7 percent’’. (iv) If there is enacted after December 22, 1987, an Act which amends this subchapter whose provisions become effective on or after such date and which results in an increase in the aggregate amount of medical assistance under this subchapter for nursing facility services and home and community-based serv- ices for individuals who have attained the age of 65 years, the Secretary, at the request of a State with a waiver under this subsection for a waiver year or years and in close consulta- tion with the State, shall adjust the projected amount computed under this subparagraph for the waiver year or years to take into account such increase. (C) In this paragraph: (i) The term ‘‘home and community-based services’’ includes services described in sec- tions 1396d(a)(7) and 1396d(a)(8) of this title, services described in subsection (c)(4)(B), serv- ices described in paragraph (4), and personal care services. (ii)(I) Subject to subclause (II), the term ‘‘base year’’ means the most recent year (end- ing before December 22, 1987) for which actual final expenditures under this subchapter have been reported to, and accepted by, the Sec- retary. (II) For purposes of subparagraph (C), in the case of a State that does not report expendi- tures on the basis of the age categories de- scribed in such subparagraph for a year ending before December 22, 1987, the term ‘‘base year’’ means fiscal year 1989. (iii) The term ‘‘intermediate care facility services’’ does not include services furnished in an institution certified in accordance with section 1396d(d) of this title. (6)(A) A determination by the Secretary to deny a request for a waiver (or extension of waiver) under this subsection shall be subject to review to the extent provided under section 1316(b) of this title. (B) Notwithstanding any other provision of this chapter, if the Secretary denies a request of the State for an extension of a waiver under this subsection, any waiver under this subsection in effect on the date such request is made shall re- main in effect for a period of not less than 90 days after the date on which the Secretary de- nies such request (or, if the State seeks review of such determination in accordance with sub- paragraph (A), the date on which a final deter- mination is made with respect to such review). (e) Waiver for children infected with AIDS or drug dependent at birth (1)(A) Subject to paragraph (2), the Secretary shall grant a waiver to provide that a State plan approved under this subchapter shall include as ‘‘medical assistance’’ under such plan payment for part or all of the cost of nursing care, respite care, physicians’ services, prescribed drugs, medical devices and supplies, transportation services, and such other services requested by the State as the Secretary may approve which are provided pursuant to a written plan of care to a child described in subparagraph (B) with re- spect to whom there has been a determination that but for the provision of such services the infants would be likely to require the level of care provided in a hospital or nursing facility the cost of which could be reimbursed under the State plan. (B) Children described in this subparagraph are individuals under 5 years of age who— (i) at the time of birth were infected with (or tested positively for) the etiologic agent for acquired immune deficiency syndrome (AIDS), (ii) have such syndrome, or (iii) at the time of birth were dependent on heroin, cocaine, or phencyclidine, and with respect to whom adoption or foster care assistance is (or will be) made available under part E of subchapter IV. (2) A waiver shall not be granted under this subsection unless the State provides assurances satisfactory to the Secretary that— (A) necessary safeguards (including adequate standards for provider participation) have been taken to protect the health and welfare of individuals provided services under the waiver and to assure financial accountability for funds expended with respect to such serv- ices; (B) under such waiver the average per capita expenditure estimated by the State in any fis- cal year for medical assistance provided with respect to such individuals does not exceed 100 percent of the average per capita expenditure Page 4227 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 1396n that the State reasonably estimates would have been made in that fiscal year for expendi- tures under the State plan for such individuals if the waiver had not been granted; and (C) the State will provide to the Secretary annually, consistent with a data collection plan designed by the Secretary, information on the impact of the waiver granted under this subsection on the type and amount of medical assistance provided under the State plan and on the health and welfare of recipients. (3) A waiver granted under this subsection may include a waiver of the requirements of sec- tion 1396a(a)(1) of this title (relating to statewideness) and section 1396a(a)(10)(B) of this title (relating to comparability). A waiver under this subsection shall be for an initial term of 3 years and, upon the request of a State, shall be extended for additional five-year periods unless the Secretary determines that for the previous waiver period the assurances provided under paragraph (2) have not been met. (4) The provisions of paragraph (6) of sub- section (d) shall apply to this subsection in the same manner as it applies to subsection (d). (f) Monitor of implementation of waivers; termi- nation of waiver for noncompliance; time limitation for action on requests for plan ap- proval, amendments, or waivers (1) The Secretary shall monitor the implemen- tation of waivers granted under this section to assure that the requirements for such waiver are being met and shall, after notice and oppor- tunity for a hearing, terminate any such waiver where he finds noncompliance has occurred. (2) A request to the Secretary from a State for approval of a proposed State plan or plan amendment or a waiver of a requirement of this subchapter submitted by the State pursuant to a provision of this subchapter shall be deemed granted unless the Secretary, within 90 days after the date of its submission to the Sec- retary, either denies such request in writing or informs the State agency in writing with re- spect to any additional information which is needed in order to make a final determination with respect to the request. After the date the Secretary receives such additional information, the request shall be deemed granted unless the Secretary, within 90 days of such date, denies such request. (g) Optional targeted case management services (1) A State may provide, as medical assist- ance, case management services under the plan without regard to the requirements of section 1396a(a)(1) of this title and section 1396a(a)(10)(B) of this title. The provision of case management services under this subsection shall not restrict the choice of the individual to receive medical assistance in violation of section 1396a(a)(23) of this title. A State may limit the provision of case management services under this subsection to individuals with acquired immune deficiency syndrome (AIDS), or with AIDS-related condi- tions, or with either, or to individuals described in section 1396a(z)(1)(A) of this title and a State may limit the provision of case management services under this subsection to individuals with chronic mental illness. The State may limit the case managers available with respect to case management services for eligible indi- viduals with developmental disabilities or with chronic mental illness in order to ensure that the case managers for such individuals are capa- ble of ensuring that such individuals receive needed services. (2) For purposes of this subsection: (A)(i) The term ‘‘case management services’’ means services which will assist individuals eligible under the plan in gaining access to needed medical, social, educational, and other services. (ii) Such term includes the following: (I) Assessment of an eligible individual to determine service needs, including activities that focus on needs identification, to deter- mine the need for any medical, educational, social, or other services. Such assessment activities include the following: (aa) Taking client history. (bb) Identifying the needs of the indi- vidual, and completing related documenta- tion. (cc) Gathering information from other sources such as family members, medical providers, social workers, and educators, if necessary, to form a complete assessment of the eligible individual. (II) Development of a specific care plan based on the information collected through an assessment, that specifies the goals and actions to address the medical, social, edu- cational, and other services needed by the eligible individual, including activities such as ensuring the active participation of the eligible individual and working with the in- dividual (or the individual’s authorized health care decision maker) and others to develop such goals and identify a course of action to respond to the assessed needs of the eligible individual. (III) Referral and related activities to help an individual obtain needed services, includ- ing activities that help link eligible individ- uals with medical, social, educational pro- viders or other programs and services that are capable of providing needed services, such as making referrals to providers for needed services and scheduling appoint- ments for the individual. (IV) Monitoring and followup activities, including activities and contacts that are necessary to ensure the care plan is effec- tively implemented and adequately address- ing the needs of the eligible individual, and which may be with the individual, family members, providers, or other entities and conducted as frequently as necessary to help determine such matters as— (aa) whether services are being furnished in accordance with an individual’s care plan; (bb) whether the services in the care plan are adequate; and (cc) whether there are changes in the needs or status of the eligible individual, and if so, making necessary adjustments in the care plan and service arrangements with providers. (iii) Such term does not include the direct delivery of an underlying medical, edu- Page 4228 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 1396n cational, social, or other service to which an eligible individual has been referred, includ- ing, with respect to the direct delivery of fos- ter care services, services such as (but not lim- ited to) the following: (I) Research gathering and completion of documentation required by the foster care program. (II) Assessing adoption placements. (III) Recruiting or interviewing potential foster care parents. (IV) Serving legal papers. (V) Home investigations. (VI) Providing transportation. (VII) Administering foster care subsidies. (VIII) Making placement arrangements. (B) The term ‘‘targeted case management services’’ are case management services that are furnished without regard to the require- ments of section 1396a(a)(1) of this title and section 1396a(a)(10)(B) of this title to specific classes of individuals or to individuals who re- side in specified areas. (3) With respect to contacts with individuals who are not eligible for medical assistance under the State plan or, in the case of targeted case management services, individuals who are eligible for such assistance but are not part of the target population specified in the State plan, such contacts— (A) are considered an allowable case man- agement activity, when the purpose of the contact is directly related to the management of the eligible individual’s care; and (B) are not considered an allowable case management activity if such contacts relate directly to the identification and management of the noneligible or nontargeted individual’s needs and care. (4)(A) In accordance with section 1396a(a)(25) of this title, Federal financial participation only is available under this subchapter for case man- agement services or targeted case management services if there are no other third parties liable to pay for such services, including as reimburse- ment under a medical, social, educational, or other program. (B) A State shall allocate the costs of any part of such services which are reimbursable under another federally funded program in accordance with OMB Circular A–87 (or any related or suc- cessor guidance or regulations regarding alloca- tion of costs among federally funded programs) under an approved cost allocation program. (5) Nothing in this subsection shall be con- strued as affecting the application of rules with respect to third party liability under programs, or activities carried out under title XXVI of the Public Health Service Act [42 U.S.C. 300ff et seq.] or by the Indian Health Service. (h) Period of waivers; continuations (1) No waiver under this section (other than a waiver under subsection (c), (d), or (e), or a waiver described in paragraph (2)) may extend over a period of longer than two years unless the State requests continuation of such waiver, and such request shall be deemed granted unless the Secretary, within 90 days after the date of its submission to the Secretary, either denies such request in writing or informs the State agency in writing with respect to any additional infor- mation which is needed in order to make a final determination with respect to the request. After the date the Secretary receives such additional information, the request shall be deemed grant- ed unless the Secretary, within 90 days of such date, denies such request. (2)(A) Notwithstanding subsections (c)(3) and (d)(3), any waiver under subsection (b), (c), or (d), or a waiver under section 1315 of this title, that provides medical assistance for dual eligi- ble individuals (including any such waivers under which non dual eligible individuals may be enrolled in addition to dual eligible individ- uals) may be conducted for a period of 5 years and, upon the request of the State, may be ex- tended for additional 5-year periods unless the Secretary determines that for the previous waiver period the conditions for the waiver have not been met or it would no longer be cost-effec- tive and efficient, or consistent with the pur- poses of this subchapter, to extend the waiver. (B) In this paragraph, the term ‘‘dual eligible individual’’ means an individual who is entitled to, or enrolled for, benefits under part A of sub- chapter XVIII, or enrolled for benefits under part B of subchapter XVIII, and is eligible for medical assistance under the State plan under this subchapter or under a waiver of such plan. (i) State plan amendment option to provide home and community-based services for el- derly and disabled individuals (1) In general Subject to the succeeding provisions of this subsection, a State may provide through a State plan amendment for the provision of medical assistance for home and community- based services (within the scope of services de- scribed in paragraph (4)(B) of subsection (c) for which the Secretary has the authority to ap- prove a waiver and not including room and board) for individuals eligible for medical as- sistance under the State plan whose income does not exceed 150 percent of the poverty line (as defined in section 1397jj(c)(5) of this title), without determining that but for the provision of such services the individuals would require the level of care provided in a hospital or a nursing facility or intermediate care facility for the mentally retarded, but only if the State meets the following requirements: (A) Needs-based criteria for eligibility for, and receipt of, home and community- based services The State establishes needs-based criteria for determining an individual’s eligibility under the State plan for medical assistance for such home and community-based serv- ices, and if the individual is eligible for such services, the specific home and community- based services that the individual will re- ceive. (B) Establishment of more stringent needs- based eligibility criteria for institutional- ized care The State establishes needs-based criteria for determining whether an individual re- quires the level of care provided in a hos- Page 4229 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 1396n pital, a nursing facility, or an intermediate care facility for the mentally retarded under the State plan or under any waiver of such plan that are more stringent than the needs- based criteria established under subpara- graph (A) for determining eligibility for home and community-based services. (C) Projection of number of individuals to be provided home and community-based services The State submits to the Secretary, in such form and manner, and upon such fre- quency as the Secretary shall specify, the projected number of individuals to be pro- vided home and community-based services. (D) Criteria based on individual assessment (i) In general The criteria established by the State for purposes of subparagraphs (A) and (B) re- quires an assessment of an individual’s support needs and capabilities, and may take into account the inability of the indi- vidual to perform 2 or more activities of daily living (as defined in section 7702B(c)(2)(B) of the Internal Revenue Code of 1986) or the need for significant assist- ance to perform such activities, and such other risk factors as the State determines to be appropriate. (ii) Adjustment authority The State plan amendment provides the State with the option to modify the cri- teria established under subparagraph (A) (without having to obtain prior approval from the Secretary) in the event that the enrollment of individuals eligible for home and community-based services exceeds the projected enrollment submitted for pur- poses of subparagraph (C), but only if— (I) the State provides at least 60 days notice to the Secretary and the public of the proposed modification; (II) the State deems an individual re- ceiving home and community-based serv- ices on the basis of the most recent version of the criteria in effect prior to the effective date of the modification to continue to be eligible for such services after the effective date of the modifica- tion and until such time as the indi- vidual no longer meets the standard for receipt of such services under such pre- modified criteria; and (III) after the effective date of such modification, the State, at a minimum, applies the criteria for determining whether an individual requires the level of care provided in a hospital, a nursing facility, or an intermediate care facility for the mentally retarded under the State plan or under any waiver of such plan which applied prior to the applica- tion of the more stringent criteria devel- oped under subparagraph (B). (E) Independent evaluation and assessment (i) Eligibility determination The State uses an independent evalua- tion for making the determinations de- scribed in subparagraphs (A) and (B). (ii) Assessment In the case of an individual who is deter- mined to be eligible for home and commu- nity-based services, the State uses an inde- pendent assessment, based on the needs of the individual to— (I) determine a necessary level of serv- ices and supports to be provided, con- sistent with an individual’s physical and mental capacity; (II) prevent the provision of unneces- sary or inappropriate care; and (III) establish an individualized care plan for the individual in accordance with subparagraph (G). (F) Assessment The independent assessment required under subparagraph (E)(ii) shall include the following: (i) An objective evaluation of an individ- ual’s inability to perform 2 or more activi- ties of daily living (as defined in section 7702B(c)(2)(B) of the Internal Revenue Code of 1986) or the need for significant assist- ance to perform such activities. (ii) A face-to-face evaluation of the indi- vidual by an individual trained in the as- sessment and evaluation of individuals whose physical or mental conditions trig- ger a potential need for home and commu- nity-based services. (iii) Where appropriate, consultation with the individual’s family, spouse, guardian, or other responsible individual. (iv) Consultation with appropriate treat- ing and consulting health and support pro- fessionals caring for the individual. (v) An examination of the individual’s relevant history, medical records, and care and support needs, guided by best practices and research on effective strategies that result in improved health and quality of life outcomes. (vi) If the State offers individuals the op- tion to self-direct the purchase of, or con- trol the receipt of, home and community- based service, an evaluation of the ability of the individual or the individual’s rep- resentative to self-direct the purchase of, or control the receipt of, such services if the individual so elects. (G) Individualized care plan (i) In general In the case of an individual who is deter- mined to be eligible for home and commu- nity-based services, the State uses the independent assessment required under subparagraph (E)(ii) to establish a written individualized care plan for the individual. (ii) Plan requirements The State ensures that the individual- ized care plan for an individual— (I) is developed— (aa) in consultation with the indi- vidual, the individual’s treating physi- cian, health care or support profes- sional, or other appropriate individ- uals, as defined by the State, and, Page 4230 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 1396n where appropriate the individual’s family, caregiver, or representative; and (bb) taking into account the extent of, and need for, any family or other supports for the individual; (II) identifies the necessary home and community-based services to be fur- nished to the individual (or, if the indi- vidual elects to self-direct the purchase of, or control the receipt of, such serv- ices, funded for the individual); and (III) is reviewed at least annually and as needed when there is a significant change in the individual’s cir- cumstances. (iii) State option to offer election for self- directed services (I) Individual choice At the option of the State, the State may allow an individual or the individ- ual’s representative to elect to receive self-directed home and community-based services in a manner which gives them the most control over such services con- sistent with the individual’s abilities and the requirements of subclauses (II) and (III). (II) Self-directed services The term ‘‘self-directed’’ means, with respect to the home and community- based services offered under the State plan amendment, such services for the individual which are planned and pur- chased under the direction and control of such individual or the individual’s au- thorized representative, including the amount, duration, scope, provider, and location of such services, under the State plan consistent with the following requirements: (aa) Assessment There is an assessment of the needs, capabilities, and preferences of the in- dividual with respect to such services. (bb) Service plan Based on such assessment, there is developed jointly with such individual or the individual’s authorized rep- resentative a plan for such services for such individual that is approved by the State and that satisfies the require- ments of subclause (III). (III) Plan requirements For purposes of subclause (II)(bb), the requirements of this subclause are that the plan— (aa) specifies those services which the individual or the individual’s au- thorized representative would be re- sponsible for directing; (bb) identifies the methods by which the individual or the individual’s au- thorized representative will select, manage, and dismiss providers of such services; (cc) specifies the role of family mem- bers and others whose participation is sought by the individual or the individ- ual’s authorized representative with respect to such services; (dd) is developed through a person- centered process that is directed by the individual or the individual’s author- ized representative, builds upon the in- dividual’s capacity to engage in activi- ties that promote community life and that respects the individual’s pref- erences, choices, and abilities, and in- volves families, friends, and profes- sionals as desired or required by the in- dividual or the individual’s authorized representative; (ee) includes appropriate risk man- agement techniques that recognize the roles and sharing of responsibilities in obtaining services in a self-directed manner and assure the appropriateness of such plan based upon the resources and capabilities of the individual or the individual’s authorized representa- tive; and (ff) may include an individualized budget which identifies the dollar value of the services and supports under the control and direction of the individual or the individual’s author- ized representative. (IV) Budget process With respect to individualized budgets described in subclause (III)(ff), the State plan amendment— (aa) describes the method for calcu- lating the dollar values in such budg- ets based on reliable costs and service utilization; (bb) defines a process for making ad- justments in such dollar values to re- flect changes in individual assessments and service plans; and (cc) provides a procedure to evaluate expenditures under such budgets. (H) Quality assurance; conflict of interest standards (i) Quality assurance The State ensures that the provision of home and community-based services meets Federal and State guidelines for quality assurance. (ii) Conflict of interest standards The State establishes standards for the conduct of the independent evaluation and the independent assessment to safeguard against conflicts of interest. (I) Redeterminations and appeals The State allows for at least annual rede- terminations of eligibility, and appeals in accordance with the frequency of, and man- ner in which, redeterminations and appeals of eligibility are made under the State plan. (J) Presumptive eligibility for assessment The State, at its option, elects to provide for a period of presumptive eligibility (not to exceed a period of 60 days) only for those individuals that the State has reason to be- Page 4231 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 1396n lieve may be eligible for home and commu- nity-based services. Such presumptive eligi- bility shall be limited to medical assistance for carrying out the independent evaluation and assessment under subparagraph (E) to determine an individual’s eligibility for such services and if the individual is so eligible, the specific home and community-based services that the individual will receive. (2) Definition of individual’s representative In this section, the term ‘‘individual’s rep- resentative’’ means, with respect to an indi- vidual, a parent, a family member, or a guard- ian of the individual, an advocate for the indi- vidual, or any other individual who is author- ized to represent the individual. (3) Nonapplication A State may elect in the State plan amend- ment approved under this section to not com- ply with the requirements of section 1396a(a)(10)(B) of this title (relating to com- parability) and section 1396a(a)(10)(C)(i)(III) of this title (relating to income and resource rules applicable in the community), but only for purposes of provided home and community- based services in accordance with such amend- ment. Any such election shall not be con- strued to apply to the provision of services to an individual receiving medical assistance in an institutionalized setting as a result of a de- termination that the individual requires the level of care provided in a hospital or a nurs- ing facility or intermediate care facility for the mentally retarded. (4) No effect on other waiver authority Nothing in this subsection shall be con- strued as affecting the option of a State to offer home and community-based services under a waiver under subsections (c) or (d) of this section or under section 1315 of this title. (5) Continuation of Federal financial participa- tion for medical assistance provided to in- dividuals as of effective date of State plan amendment Notwithstanding paragraph (1)(B), Federal financial participation shall continue to be available for an individual who is receiving medical assistance in an institutionalized set- ting, or home and community-based services provided under a waiver under this section or section 1315 of this title that is in effect as of the effective date of the State plan amend- ment submitted under this subsection, as a re- sult of a determination that the individual re- quires the level of care provided in a hospital or a nursing facility or intermediate care fa- cility for the mentally retarded, without re- gard to whether such individuals satisfy the more stringent eligibility criteria established under that paragraph, until such time as the individual is discharged from the institution or waiver program or no longer requires such level of care. (6) State option to provide home and commu- nity-based services to individuals eligible for services under a waiver (A) In general A State that provides home and commu- nity-based services in accordance with this subsection to individuals who satisfy the needs-based criteria for the receipt of such services established under paragraph (1)(A) may, in addition to continuing to provide such services to such individuals, elect to provide home and community-based services in accordance with the requirements of this paragraph to individuals who are eligible for home and community-based services under a waiver approved for the State under sub- section (c), (d), or (e) or under section 1315 of this title to provide such services, but only for those individuals whose income does not exceed 300 percent of the supplemental secu- rity income benefit rate established by sec- tion 1382(b)(1) of this title. (B) Application of same requirements for in- dividuals satisfying needs-based criteria Subject to subparagraph (C), a State shall provide home and community-based services to individuals under this paragraph in the same manner and subject to the same re- quirements as apply under the other para- graphs of this subsection to the provision of home and community-based services to indi- viduals who satisfy the needs-based criteria established under paragraph (1)(A). (C) Authority to offer different type, amount, duration, or scope of home and commu- nity-based services A State may offer home and community- based services to individuals under this paragraph that differ in type, amount, dura- tion, or scope from the home and commu- nity-based services offered for individuals who satisfy the needs-based criteria estab- lished under paragraph (1)(A), so long as such services are within the scope of services described in paragraph (4)(B) of subsection (c) for which the Secretary has the authority to approve a waiver and do not include room or board. (7) State option to offer home and community- based services to specific, targeted popu- lations (A) In general A State may elect in a State plan amend- ment under this subsection to target the provision of home and community-based services under this subsection to specific populations and to differ the type, amount, duration, or scope of such services to such specific populations. (B) 5-year term (i) In general An election by a State under this para- graph shall be for a period of 5 years. (ii) Phase-in of services and eligibility per- mitted during initial 5-year period A State making an election under this paragraph may, during the first 5-year pe- riod for which the election is made, phase- in the enrollment of eligible individuals, or the provision of services to such indi- viduals, or both, so long as all eligible in- dividuals in the State for such services are enrolled, and all such services are pro- Page 4232 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 1396n 1 So in original. Probably should be preceded by ‘‘the’’. vided, before the end of the initial 5-year period. (C) Renewal An election by a State under this para- graph may be renewed for additional 5-year terms if the Secretary determines, prior to beginning 1 of each such renewal period, that the State has— (i) adhered to the requirements of this subsection and paragraph in providing services under such an election; and (ii) met the State’s objectives with re- spect to quality improvement and bene- ficiary outcomes. (j) Optional choice of self-directed personal as- sistance services (1) A State may provide, as ‘‘medical assist- ance’’, payment for part or all of the cost of self- directed personal assistance services (other than room and board) under the plan which are pro- vided pursuant to a written plan of care to indi- viduals with respect to whom there has been a determination that, but for the provision of such services, the individuals would require and re- ceive personal care services under the plan, or home and community-based services provided pursuant to a waiver under subsection (c). Self- directed personal assistance services may not be provided under this subsection to individuals who reside in a home or property that is owned, operated, or controlled by a provider of services, not related by blood or marriage. (2) The Secretary shall not grant approval for a State self-directed personal assistance services program under this section unless the State pro- vides assurances satisfactory to the Secretary of the following: (A) Necessary safeguards have been taken to protect the health and welfare of individuals provided services under the program, and to assure financial accountability for funds ex- pended with respect to such services. (B) The State will provide, with respect to individuals who— (i) are entitled to medical assistance for personal care services under the plan, or re- ceive home and community-based services under a waiver granted under subsection (c); (ii) may require self-directed personal as- sistance services; and (iii) may be eligible for self-directed per- sonal assistance services, an evaluation of the need for personal care under the plan, or personal services under a waiver granted under subsection (c). (C) Such individuals who are determined to be likely to require personal care under the plan, or home and community-based services under a waiver granted under subsection (c) are informed of the feasible alternatives, if available under the State’s self-directed per- sonal assistance services program, at the choice of such individuals, to the provision of personal care services under the plan, or per- sonal assistance services under a waiver grant- ed under subsection (c). (D) The State will provide for a support sys- tem that ensures participants in the self-di- rected personal assistance services program are appropriately assessed and counseled prior to enrollment and are able to manage their budgets. Additional counseling and manage- ment support may be provided at the request of the participant. (E) The State will provide to the Secretary an annual report on the number of individuals served and total expenditures on their behalf in the aggregate. The State shall also provide an evaluation of overall impact on the health and welfare of participating individuals com- pared to non-participants every three years. (3) A State may provide self-directed personal assistance services under the State plan without regard to the requirements of section 1396a(a)(1) of this title and may limit the population eligi- ble to receive these services and limit the num- ber of persons served without regard to section 1396a(a)(10)(B) of this title. (4)(A) For purposes of this subsection, the term ‘‘self-directed personal assistance services’’ means personal care and related services, or home and community-based services otherwise available under the plan under this subchapter or subsection (c), that are provided to an eligible participant under a self-directed personal assist- ance services program under this section, under which individuals, within an approved self-di- rected services plan and budget, purchase per- sonal assistance and related services, and per- mits participants to hire, fire, supervise, and manage the individuals providing such services. (B) At the election of the State— (i) a participant may choose to use any indi- vidual capable of providing the assigned tasks including legally liable relatives as paid pro- viders of the services; and (ii) the individual may use the individual’s budget to acquire items that increase inde- pendence or substitute (such as a microwave oven or an accessibility ramp) for human as- sistance, to the extent that expenditures would otherwise be made for the human assist- ance. (5) For purpose of this section, the term ‘‘ap- proved self-directed services plan and budget’’ means, with respect to a participant, the estab- lishment of a plan and budget for the provision of self-directed personal assistance services, consistent with the following requirements: (A) Self-direction The participant (or in the case of a partici- pant who is a minor child, the participant’s parent or guardian, or in the case of an inca- pacitated adult, another individual recog- nized by State law to act on behalf of the participant) exercises choice and control over the budget, planning, and purchase of self-directed personal assistance services, in- cluding the amount, duration, scope, pro- vider, and location of service provision. (B) Assessment of needs There is an assessment of the needs, strengths, and preferences of the partici- pants for such services. (C) Service plan A plan for such services (and supports for such services) for the participant has been Page 4233 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 1396n developed and approved by the State based on such assessment through a person-cen- tered process that— (i) builds upon the participant’s capacity to engage in activities that promote com- munity life and that respects the partici- pant’s preferences, choices, and abilities; and (ii) involves families, friends, and profes- sionals in the planning or delivery of serv- ices or supports as desired or required by the participant. (D) Service budget A budget for such services and supports for the participant has been developed and ap- proved by the State based on such assess- ment and plan and on a methodology that uses valid, reliable cost data, is open to pub- lic inspection, and includes a calculation of the expected cost of such services if those services were not self-directed. The budget may not restrict access to other medically necessary care and services furnished under the plan and approved by the State but not included in the budget. (E) Application of quality assurance and risk management There are appropriate quality assurance and risk management techniques used in es- tablishing and implementing such plan and budget that recognize the roles and respon- sibilities in obtaining services in a self-di- rected manner and assure the appropriate- ness of such plan and budget based upon the participant’s resources and capabilities. (6) A State may employ a financial manage- ment entity to make payments to providers, track costs, and make reports under the pro- gram. Payment for the activities of the finan- cial management entity shall be at the adminis- trative rate established in section 1396b(a) of this title. (k) State plan option to provide home and com- munity-based attendant services and sup- ports (1) In general Subject to the succeeding provisions of this subsection, beginning October 1, 2011, a State may provide through a State plan amendment for the provision of medical assistance for home and community-based attendant serv- ices and supports for individuals who are eligi- ble for medical assistance under the State plan whose income does not exceed 150 percent of the poverty line (as defined in section 1397jj(c)(5) of this title) or, if greater, the in- come level applicable for an individual who has been determined to require an institu- tional level of care to be eligible for nursing facility services under the State plan and with respect to whom there has been a determina- tion that, but for the provision of such serv- ices, the individuals would require the level of care provided in a hospital, a nursing facility, an intermediate care facility for the mentally retarded, or an institution for mental diseases, the cost of which could be reimbursed under the State plan, but only if the individual chooses to receive such home and community- based attendant services and supports, and only if the State meets the following require- ments: (A) Availability The State shall make available home and community-based attendant services and supports to eligible individuals, as needed, to assist in accomplishing activities of daily living, instrumental activities of daily liv- ing, and health-related tasks through hands- on assistance, supervision, or cueing— (i) under a person-centered plan of serv- ices and supports that is based on an as- sessment of functional need and that is agreed to in writing by the individual or, as appropriate, the individual’s representa- tive; (ii) in a home or community setting, which does not include a nursing facility, institution for mental diseases, or an in- termediate care facility for the mentally retarded; (iii) under an agency-provider model or other model (as defined in paragraph (6)(C)); and (iv) the furnishing of which— (I) is selected, managed, and dismissed by the individual, or, as appropriate, with assistance from the individual’s representative; (II) is controlled, to the maximum ex- tent possible, by the individual or where appropriate, the individual’s representa- tive, regardless of who may act as the employer of record; and (III) provided by an individual who is qualified to provide such services, in- cluding family members (as defined by the Secretary). (B) Included services and supports In addition to assistance in accomplishing activities of daily living, instrumental ac- tivities of daily living, and health related tasks, the home and community-based at- tendant services and supports made avail- able include— (i) the acquisition, maintenance, and en- hancement of skills necessary for the indi- vidual to accomplish activities of daily living, instrumental activities of daily liv- ing, and health related tasks; (ii) back-up systems or mechanisms (such as the use of beepers or other elec- tronic devices) to ensure continuity of services and supports; and (iii) voluntary training on how to select, manage, and dismiss attendants. (C) Excluded services and supports Subject to subparagraph (D), the home and community-based attendant services and supports made available do not include— (i) room and board costs for the indi- vidual; (ii) special education and related serv- ices provided under the Individuals with Disabilities Education Act [20 U.S.C. 1400 et seq.] and vocational rehabilitation serv- ices provided under the Rehabilitation Act of 1973 [29 U.S.C. 701 et seq.]; Page 4234 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 1396n (iii) assistive technology devices and as- sistive technology services other than those under (1)(B)(ii); (iv) medical supplies and equipment; or (v) home modifications. (D) Permissible services and supports The home and community-based attendant services and supports may include— (i) expenditures for transition costs such as rent and utility deposits, first month’s rent and utilities, bedding, basic kitchen supplies, and other necessities required for an individual to make the transition from a nursing facility, institution for mental diseases, or intermediate care facility for the mentally retarded to a community- based home setting where the individual resides; and (ii) expenditures relating to a need iden- tified in an individual’s person-centered plan of services that increase independence or substitute for human assistance, to the extent that expenditures would otherwise be made for the human assistance. (2) Increased Federal financial participation For purposes of payments to a State under section 1396b(a)(1) of this title, with respect to amounts expended by the State to provide medical assistance under the State plan for home and community-based attendant serv- ices and supports to eligible individuals in ac- cordance with this subsection during a fiscal year quarter occurring during the period de- scribed in paragraph (1), the Federal medical assistance percentage applicable to the State (as determined under section 1396d(b) of this title) shall be increased by 6 percentage points. (3) State requirements In order for a State plan amendment to be approved under this subsection, the State shall— (A) develop and implement such amend- ment in collaboration with a Development and Implementation Council established by the State that includes a majority of mem- bers with disabilities, elderly individuals, and their representatives and consults and collaborates with such individuals; (B) provide consumer controlled home and community-based attendant services and supports to individuals on a statewide basis, in a manner that provides such services and supports in the most integrated setting ap- propriate to the individual’s needs, and without regard to the individual’s age, type or nature of disability, severity of disability, or the form of home and community-based attendant services and supports that the in- dividual requires in order to lead an inde- pendent life; (C) with respect to expenditures during the first full fiscal year in which the State plan amendment is implemented, maintain or ex- ceed the level of State expenditures for med- ical assistance that is provided under sec- tion 1396d(a) of this title, this section, sec- tion 1315 of this title, or otherwise to indi- viduals with disabilities or elderly individ- uals attributable to the preceding fiscal year; (D) establish and maintain a comprehen- sive, continuous quality assurance system with respect to community-based attendant services and supports that— (i) includes standards for agency-based and other delivery models with respect to training, appeals for denials and reconsid- eration procedures of an individual plan, and other factors as determined by the Secretary; (ii) incorporates feedback from con- sumers and their representatives, dis- ability organizations, providers, families of disabled or elderly individuals, members of the community, and others and maxi- mizes consumer independence and con- sumer control; (iii) monitors the health and well-being of each individual who receives home and community-based attendant services and supports, including a process for the man- datory reporting, investigation, and reso- lution of allegations of neglect, abuse, or exploitation in connection with the provi- sion of such services and supports; and (iv) provides information about the pro- visions of the quality assurance required under clauses (i) through (iii) to each indi- vidual receiving such services; and (E) collect and report information, as de- termined necessary by the Secretary, for the purposes of approving the State plan amend- ment, providing Federal oversight, and con- ducting an evaluation under paragraph (5)(A), including data regarding how the State provides home and community-based attendant services and supports and other home and community-based services, the cost of such services and supports, and how the State provides individuals with disabil- ities who otherwise qualify for institutional care under the State plan or under a waiver the choice to instead receive home and com- munity-based services in lieu of institu- tional care. (4) Compliance with certain laws A State shall ensure that, regardless of whether the State uses an agency-provider model or other models to provide home and community-based attendant services and sup- ports under a State plan amendment under this subsection, such services and supports are provided in accordance with the requirements of the Fair Labor Standards Act of 1938 [29 U.S.C. 201 et seq.] and applicable Federal and State laws regarding— (A) withholding and payment of Federal and State income and payroll taxes; (B) the provision of unemployment and workers compensation insurance; (C) maintenance of general liability insur- ance; and (D) occupational health and safety. (5) Evaluation, data collection, and report to Congress (A) Evaluation The Secretary shall conduct an evaluation of the provision of home and community- Page 4235 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 1396n 2 So in original. Probably should be ‘‘a’’. 3 So in original. Probably should be followed by a period. based attendant services and supports under this subsection in order to determine the ef- fectiveness of the provision of such services and supports in allowing the individuals re- ceiving such services and supports to lead an independent life to the maximum extent pos- sible; the impact on the physical and emo- tional health of the individuals who receive such services; and an 2 comparative analysis of the costs of services provided under the State plan amendment under this subsection and those provided under institutional care in a nursing facility, institution for mental diseases, or an intermediate care facility for the mentally retarded. (B) Data collection The State shall provide the Secretary with the following information regarding the pro- vision of home and community-based attend- ant services and supports under this sub- section for each fiscal year for which such services and supports are provided: (i) The number of individuals who are es- timated to receive home and community- based attendant services and supports under this subsection during the fiscal year. (ii) The number of individuals that re- ceived such services and supports during the preceding fiscal year. (iii) The specific number of individuals served by type of disability, age, gender, education level, and employment status. (iv) Whether the specific individuals have been previously served under any other home and community based services program under the State plan or under a waiver. (C) Reports Not later than— (i) December 31, 2013, the Secretary shall submit to Congress and make available to the public an interim report on the find- ings of the evaluation under subparagraph (A); and (ii) December 31, 2015, the Secretary shall submit to Congress and make avail- able to the public a final report on the findings of the evaluation under subpara- graph (A). (6) Definitions In this subsection: (A) Activities of daily living The term ‘‘activities of daily living’’ in- cludes tasks such as eating, toileting, grooming, dressing, bathing, and transfer- ring. (B) Consumer controlled The term ‘‘consumer controlled’’ means a method of selecting and providing services and supports that allow the individual, or where appropriate, the individual’s rep- resentative, maximum control of the home and community-based attendant services and supports, regardless of who acts as the employer of record. (C) Delivery models (i) Agency-provider model The term ‘‘agency-provider model’’ means, with respect to the provision of home and community-based attendant services and supports for an individual, subject to paragraph (4), a method of pro- viding consumer controlled services and supports under which entities contract for the provision of such services and sup- ports. (ii) Other models The term ‘‘other models’’ means, subject to paragraph (4), methods, other than an agency-provider model, for the provision of consumer controlled services and supports. Such models may include the provision of vouchers, direct cash payments, or use of a fiscal agent to assist in obtaining services. (D) Health-related tasks The term ‘‘health-related tasks’’ means specific tasks related to the needs of an indi- vidual, which can be delegated or assigned by licensed health-care professionals under State law to be performed by an attendant. (E) Individual’s representative The term ‘‘individual’s representative’’ means a parent, family member, guardian, advocate, or other authorized representative of an individual 3 (F) Instrumental activities of daily living The term ‘‘instrumental activities of daily living’’ includes (but is not limited to) meal planning and preparation, managing fi- nances, shopping for food, clothing, and other essential items, performing essential household chores, communicating by phone or other media, and traveling around and participating in the community. (l) State plan amendment option to provide med- ical assistance for certain individuals who are patients in certain institutions for men- tal diseases (1) In general With respect to calendar quarters beginning on or after October 1, 2019, a State may elect, through a State plan amendment, to provide medical assistance for items and services fur- nished to an eligible individual who is a pa- tient in an eligible institution for mental dis- eases in accordance with the requirements of this subsection. (2) Payments Subject to paragraphs (3) and (4), amounts expended under a State plan amendment under paragraph (1) for services described in such paragraph furnished, with respect to a 12- month period, to an eligible individual who is a patient in an eligible institution for mental diseases shall be treated as medical assistance for which payment is made under section 1396b(a) of this title but only to the extent that such services are furnished for not more than a period of 30 days (whether or not con- secutive) during such 12-month period. Page 4236 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 1396n (3) Maintenance of effort (A) In general As a condition for a State receiving pay- ments under section 1396b(a) of this title for medical assistance provided in accordance with this subsection, the State shall (during the period in which it so furnished such med- ical assistance through a State plan amend- ment under this subsection) maintain on an annual basis a level of funding expended by the State (and political subdivisions thereof) from non-Federal funds for items and serv- ices (including services described in subpara- graph (B)) furnished to eligible individuals in outpatient and community-based settings that is not less than the level of such fund- ing for such items and services for, at the option of the State— (i) fiscal year 2018; or (ii) the most recently ended fiscal year as of the date the State submits a State plan amendment to the Secretary to pro- vide such medical assistance in accordance with this subsection. (B) Services described For purposes of subparagraph (A), services described in this subparagraph are the fol- lowing: (i) Outpatient and community-based sub- stance use disorder treatment. (ii) Evidence-based recovery and support services. (iii) Clinically-directed therapeutic treatment to facilitate recovery skills, re- lapse prevention, and emotional coping strategies. (iv) Outpatient medication-assisted treatment, related therapies, and pharma- cology. (v) Counseling and clinical monitoring. (vi) Outpatient withdrawal management and related treatment designed to allevi- ate acute emotional, behavioral, cognitive, or biomedical distress resulting from, or occurring with, an individual’s use of alco- hol and other drugs. (vii) Routine monitoring of medication adherence. (viii) Other outpatient and community- based services for the treatment of sub- stance use disorders, as designated by the Secretary. (C) State reporting requirement (i) In general Prior to approval of a State plan amend- ment under this subsection, as a condition for a State receiving payments under sec- tion 1396b(a) of this title for medical as- sistance provided in accordance with this subsection, the State shall report to the Secretary, in accordance with the process established by the Secretary under clause (ii), the information deemed necessary by the Secretary under such clause. (ii) Process Not later than the date that is 8 months after October 24, 2018, the Secretary shall establish a process for States to report to the Secretary, at such time and in such manner as the Secretary deems appro- priate, such information as the Secretary deems necessary to verify a State’s com- pliance with subparagraph (A). (D) Application of maintenance of effort re- quirements to certain States In the case of a State with a State plan amendment in effect on September 30, 2023, for the 1-year period beginning on March 9, 2024, the provisions of subparagraph (A) shall be applied as if the amendments to such sub- paragraph made by the Consolidated Appro- priations Act, 2024 had never been made. (4) Ensuring a continuum of services (A) In general As a condition for a State receiving pay- ments under section 1396b(a) of this title for medical assistance provided in accordance with this subsection, the State shall carry out each of the requirements described in subparagraphs (B) through (F). (B) Notification The State shall have in place evidence- based, substance use disorder-specific indi- vidual placement criteria and utilization management approaches to ensure place- ment of eligible individuals in an appro- priate level of care, including criteria and approaches to ensure that eligible individ- uals receive appropriate evidence-based clin- ical screening prior to being furnished with items and services in an eligible institution for mental diseases, including initial and periodic assessments to determine the ap- propriate level of care, length of stay, and setting for such care for each individual. The State shall notify the Secretary at such time and in such form and manner as the Secretary shall require of such criteria and utilization management approaches. (C) Outpatient services; inpatient and resi- dential services (i) Outpatient services The State shall, at a minimum, provide medical assistance for services that could otherwise be covered under the State plan, consistent with each of the following out- patient levels of care: (I) Early intervention for individuals who, for a known reason, are at risk of developing substance-related problems and for individuals for whom there is not yet sufficient information to document a diagnosable substance use disorder. (II) Outpatient services for less than 9 hours per week for adults, and for less than 6 hours per week for adolescents, for recovery or motivational enhance- ment therapies and strategies. (III) Intensive outpatient services for 9 hours or more per week for adults, and for 6 hours or more per week for adoles- cents, to treat multidimensional insta- bility. (IV) Partial hospitalization services for 20 hours or more per week for adults and adolescents to treat multidimen- Page 4237 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 1396n sional instability that does not require 24-hour care. (ii) Inpatient and residential services The State shall provide medical assist- ance for services that could otherwise be covered under the State plan, consistent with at least 2 of the following inpatient and residential levels of care: (I) Clinically managed, low-intensity residential services that provide adults and adolescents with 24-hour living sup- port and structure with trained per- sonnel and at least 5 hours of clinical service per week per individual. (II) Clinically managed, population- specific, high-intensity residential serv- ices that provide adults with 24-hour care with trained counselors to stabilize multidimensional imminent danger along with less intense milieu and group treatment for those with cognitive or other impairments unable to use full ac- tive milieu or therapeutic community. (III) Clinically managed, medium-in- tensity residential services for adoles- cents, and clinically managed, high-in- tensity residential services for adults, that provide 24-hour care with trained counselors to stabilize multidimensional imminent danger and preparation for outpatient treatment. (IV) Medically monitored, high-inten- sity inpatient services for adolescents, and medically monitored, intensive inpa- tient services withdrawal management for adults, that provide 24-hour nursing care, make physicians available for sig- nificant conditions, and provide coun- seling services 16 hours per day. (V) Medically managed, intensive inpa- tient services for adolescents and adults that provide 24-hour nursing care and daily physician care for severe, unstable conditions. (D) Transition of care In order to ensure an appropriate transi- tion for an eligible individual from receiving care in an eligible institution for mental dis- eases to receiving care at a lower level of clinical intensity within the continuum of care (including outpatient services), the State shall ensure that— (i) a placement in such eligible institu- tion for mental diseases would allow for an eligible individual’s successful transition to the community, considering such fac- tors as proximity to an individual’s sup- port network (such as family members, employment, and counseling and other services near an individual’s residence); and (ii) all eligible institutions for mental diseases that furnish items and services to individuals for which medical assistance is provided under the State plan— (I) are able to provide care at such lower level of clinical intensity; or (II) have an established relationship with another facility or provider that is able to provide care at such lower level of clinical intensity and accepts patients receiving medical assistance under this subchapter under which the eligible in- stitution for mental diseases may ar- range for individuals to receive such care from such other facility or provider. (E) Review process The State shall, using nationally recog- nized substance use disorder-specific pro- gram standards, have in place a process to review the compliance of eligible institu- tions for mental diseases with such program standards specified by the State. (F) Assessment (i) In general The State shall, not later than 12 months after the approval of a State plan amendment described in this subsection (or, in the case of a State that has such an amendment approved as of September 30, 2023, not later than 12 months after March 9, 2024), commence an assessment of— (I) the availability of treatment for in- dividuals enrolled under a State plan under this subchapter (or waiver of such plan) in each level of care described in subparagraph (C), including how such availability varies by region of the State; and (II) the availability of medication-as- sisted treatment and medically super- vised withdrawal management services for such individuals, including how such availability varies by region of the State. (ii) Required completion The State shall complete an assessment described in clause (i) not later than 12 months after the date the State com- mences such assessment. (5) Application to managed care Payments for, and limitations to, medical assistance furnished in accordance with this subsection shall be in addition to and shall not be construed to limit or supersede the ability of States to make monthly capitation pay- ments to managed care organizations for indi- viduals receiving treatment in institutions for mental diseases in accordance with section 438.6(e) of title 42, Code of Federal Regulations (or any successor regulation). (6) Other medical assistance The provision of medical assistance for items and services furnished to an eligible in- dividual who is a patient in an eligible institu- tion for mental diseases in accordance with the requirements of this subsection shall not prohibit Federal financial participation for medical assistance for items or services that are provided to such eligible individual in or away from the eligible institution for mental disease during any period in which the eligible individual is receiving items or services in ac- cordance with this subsection. (7) Definitions In this subsection: Page 4238 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 1396n (A) Eligible individual The term ‘‘eligible individual’’ means an individual who— (i) with respect to a State, is enrolled for medical assistance under the State plan or a waiver of such plan; (ii) is at least 21 years of age; (iii) has not attained 65 years of age; and (iv) has at least 1 substance use disorder. (B) Eligible institution for mental diseases The term ‘‘eligible institution for mental diseases’’ means an institution for mental diseases that— (i) follows reliable, evidence-based prac- tices; and (ii) offers at least 2 forms of medication- assisted treatment for substance use dis- orders on site, including, in the case of medication-assisted treatment for opioid use disorder, at least 1 antagonist and 1 partial agonist. (C) Institution for mental diseases The term ‘‘institution for mental dis- eases’’ has the meaning given that term in section 1396d(i) of this title. (Aug. 14, 1935, ch. 531, title XIX, § 1915, as added Pub. L. 97–35, title XXI, § 2175(b), Aug. 13, 1981, 95 Stat. 809; amended Pub. L. 97–35, title XXI, §§ 2176, 2177(a), Aug. 13, 1981, 95 Stat. 812, 813; Pub. L. 97–248, title I, § 137(b)(19)(A), (20)–(25), Sept. 3, 1982, 96 Stat. 380; Pub. L. 97–448, title III, § 309(b)(17), Jan. 12, 1983, 96 Stat. 2409; Pub. L. 98–369, div. B, title III, § 2373(b)(21), July 18, 1984, 98 Stat. 1112; Pub. L. 99–272, title IX, §§ 9502(a)–(e), (g)–(i), 9508(a), Apr. 7, 1986, 100 Stat. 202–204, 210; Pub. L. 99–509, title IX, §§ 9320(h)(3), 9411(a)–(d), Oct. 21, 1986, 100 Stat. 2016, 2061, 2062; Pub. L. 100–93, § 8(h)(2), Aug. 18, 1987, 101 Stat. 694; Pub. L. 100–203, title IV, §§ 4072(d), 4102(a)(1), (b)(2), 4118(a)(1), (b), (i)(1), (k), (l)(1), (p)(10), 4211(h)(10), Dec. 22, 1987, 101 Stat. 1330–117, 1330–143, 1330–146, 1330–154 to 1330–157, 1330–160, 1330–206; Pub. L. 100–360, title II, § 204(d)(3), title IV, § 411(k)(3), (10)(A), (H), (I), (17)(A), (l)(3)(G), July 1, 1988, 102 Stat. 729, 791, 794, 796, 799, 803; Pub. L. 100–485, title VI, § 608(d)(26)(M), (f)(2), Oct. 13, 1988, 102 Stat. 2422, 2424; Pub. L. 100–647, title VIII, §§ 8432(a), (b), 8437(a), Nov. 10, 1988, 102 Stat. 3804, 3806; Pub. L. 101–234, title II, § 201(a), Dec. 13, 1989, 103 Stat. 1981; Pub. L. 101–239, title VI, §§ 6115(c), 6411(c)(2), Dec. 19, 1989, 103 Stat. 2219, 2270; Pub. L. 101–508, title IV, §§ 4604(c), 4704(b)(3), 4741, 4742(a), (c)(1), (d)(1), Nov. 5, 1990, 104 Stat. 1388–169, 1388–172, 1388–197, 1388–198; Pub. L. 102–119, § 26(i)(2), Oct. 7, 1991, 105 Stat. 607; Pub. L. 103–66, title XIII, § 13603(d), Aug. 10, 1993, 107 Stat. 620; Pub. L. 105–33, title IV, §§ 4106(c), 4743(a), Aug. 5, 1997, 111 Stat. 368, 524; Pub. L. 106–113, div. B, § 1000(a)(6) [title VI, § 608(o), (z)], Nov. 29, 1999, 113 Stat. 1536, 1501A–397, 1501A–398; Pub. L. 106–554, § 1(a)(6) [title VII, § 702(c)(2)], Dec. 21, 2000, 114 Stat. 2763, 2763A–574; Pub. L. 107–121, § 2(b)(3), Jan. 15, 2002, 115 Stat. 2384; Pub. L. 108–446, title III, § 305(j)(2), Dec. 3, 2004, 118 Stat. 2806; Pub. L. 109–171, title VI, §§ 6052(a), 6086(a), 6087(a), Feb. 8, 2006, 120 Stat. 93, 121, 127; Pub. L. 111–148, title II, §§ 2401, 2402(b), (c), (e), (f), 2601(a), (b)(1), Mar. 23, 2010, 124 Stat. 297, 302–304, 314, 315; Pub. L. 111–152, title I, § 1205, Mar. 30, 2010, 124 Stat. 1056; Pub. L. 115–271, title V, § 5052(a)(2), Oct. 24, 2018, 132 Stat. 3971; Pub. L. 118–42, div. G, title I, § 204(a)–(c)(1)(A), (2), (3), Mar. 9, 2024, 138 Stat. 403–405.) APPLICABILITY OF AMENDMENT Amendment by section 204(c)(1)(A) of title I of div. G of Pub. L. 118–42 applicable with respect to States providing medical assistance for items and services pursuant to a State plan amend- ment under subsection (l) of this section in cal- endar quarters beginning on or after Oct. 1, 2025. See 2024 Amendment notes below. Editorial Notes REFERENCES IN TEXT The Public Health Service Act, referred to in subsec. (g)(5), is act July 1, 1944, ch. 373, 58 Stat. 682. Title XXVI of the Act is classified generally to subchapter XXIV (§ 300ff et seq.) of chapter 6A of this title. For complete classification of this Act to the Code, see Short Title note set out under section 201 of this title and Tables. Section 7702B(c)(2)(B) of the Internal Revenue Code of 1986, referred to in subsec. (i)(1)(D)(i), (F)(i), is classi- fied to section 7702B(c)(2)(B) of Title 26, Internal Rev- enue Code. The Individuals with Disabilities Education Act, re- ferred to in subsec. (k)(1)(C)(ii), is title VI of Pub. L. 91–230, Apr. 13, 1970, 84 Stat. 175, which is classified gen- erally to chapter 33 (§ 1400 et seq.) of Title 20, Edu- cation. For complete classification of this Act to the Code, see section 1400 of Title 20 and Tables. The Rehabilitation Act of 1973, referred to in subsec. (k)(1)(C)(ii), is Pub. L. 93–112, Sept. 26, 1973, 87 Stat. 355, which is classified generally to chapter 16 (§ 701 et seq.) of Title 29, Labor. For complete classification of this Act to the Code, see Short Title note set out under sec- tion 701 of Title 29 and Tables. The Fair Labor Standards Act of 1938, referred to in subsec. (k)(4), is act June 25, 1938, ch. 676, 52 Stat. 1060, which is classified generally to chapter 8 (§ 201 et seq.) of Title 29, Labor. For complete classification of this Act to the Code, see section 201 of Title 29 and Tables. The Consolidated Appropriations Act, 2024, referred to in subsec. (l)(3)(D), is Pub. L. 118–42, Mar. 9, 2024, 138 Stat. 25. For complete classification of this Act to the Code, see Tables. AMENDMENTS 2024—Subsec. (l)(1). Pub. L. 118–42, § 204(a), substituted ‘‘With respect to calendar quarters beginning on or after October 1, 2019,’’ for ‘‘With respect to calendar quarters beginning during the period beginning October 1, 2019, and ending September 30, 2023,’’. Subsec. (l)(3)(A). Pub. L. 118–42, § 204(b)(1), substituted ‘‘from non-Federal funds for items and services (includ- ing services described in subparagraph (B))’’ for ‘‘other than under this subchapter from non-Federal funds for— ‘‘(i) items and services furnished to eligible individ- uals who are patients in eligible institutions for men- tal diseases that is not less than the level of such funding for such items and services for the most re- cently ended fiscal year as of October 24, 2018, or, if higher, for the most recently ended fiscal year as of the date the State submits a State plan amendment to the Secretary to provide such medical assistance in accordance with this subsection; and ‘‘(ii) items and services (including services de- scribed in subparagraph (B))’’ and ‘‘such items and services for, at the option of the State—’’ and cls. (i) and (ii) for ‘‘such items and serv- ices for the most recently ended fiscal year as of Octo- ber 24, 2018, or, if higher, for the most recently ended Page 4239 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 1396n fiscal year as of the date the State submits a State plan amendment to the Secretary to provide such med- ical assistance in accordance with this subsection.’’ Subsec. (l)(3)(B). Pub. L. 118–42, § 204(b)(2), substituted ‘‘subparagraph (A)’’ for ‘‘subparagraph (A)(ii)’’ in intro- ductory provisions. Subsec. (l)(3)(D). Pub. L. 118–42, § 204(b)(3), added sub- par. (D). Subsec. (l)(4)(A). Pub. L. 118–42, § 204(c)(1)(A)(i), sub- stituted ‘‘through (F)’’ for ‘‘through (D)’’. Subsec. (l)(4)(B). Pub. L. 118–42, § 204(c)(1)(A)(ii), sub- stituted ‘‘The State shall have in place evidence-based, substance use disorder-specific individual placement criteria and utilization management approaches to en- sure placement of eligible individuals in an appropriate level of care, including criteria and approaches to en- sure’’ for ‘‘Prior to approval of a State plan amendment under this subsection, the State shall notify the Sec- retary of how the State will ensure’’ and inserted at end ‘‘The State shall notify the Secretary at such time and in such form and manner as the Secretary shall re- quire of such criteria and utilization management ap- proaches.’’ Subsec. (l)(4)(C)(ii). Pub. L. 118–42, § 204(c)(3)(A), which directed substitution of ‘‘conditions’’ for ‘‘problems in Dimensions 1, 2, or 3’’ each place it appears, was exe- cuted by making the substitution in subcl. (IV) and also making the substitution in subcl. (V) for ‘‘prob- lems in Dimensions 1, 2 or 3’’, to reflect the probable in- tent of Congress. Subsec. (l)(4)(E). Pub. L. 118–42, § 204(c)(1)(A)(iii), added subpar. (E). Subsec. (l)(4)(F). Pub. L. 118–42, § 204(c)(2), added sub- par. (F). Subsec. (l)(7). Pub. L. 118–42, § 204(c)(3)(B), redesig- nated subpars. (B) to (D) as (A) to (C), respectively, and struck out former subpar. (A). Prior to amendment, text of subpar. (A) read as follows: ‘‘The term ‘Dimen- sions 1, 2, or 3’ has the meaning given that term for purposes of the publication of the American Society of Addiction Medicine entitled ‘The ASAM Criteria: Treatment Criteria for Addictive Substance-Related, and Co-Occurring Conditions, 2013’.’’ 2018—Subsec. (l). Pub. L. 115–271 added subsec. (l). 2010—Subsec. (b). Pub. L. 111–148, § 2601(b)(1)(A), in- serted at end of concluding provisions ‘‘Subsection (h)(2) shall apply to a waiver under this subsection.’’ Subsec. (c)(3). Pub. L. 111–148, § 2601(b)(1)(B), inserted ‘‘(other than a waiver described in subsection (h)(2))’’ after ‘‘A waiver under this subsection’’. Subsec. (d)(3). Pub. L. 111–148, § 2601(b)(1)(C), which di- rected insertion of ‘‘(other than a waiver described in subsection (h)(2))’’ after ‘‘A waiver under this sub- section’’ in second sentence, was executed by making the insertion after ‘‘a waiver under this subsection’’, to reflect the probable intent of Congress. Subsec. (h). Pub. L. 111–148, § 2601(a), designated exist- ing provisions as par. (1), inserted ‘‘, or a waiver de- scribed in paragraph (2)’’ after ‘‘(c), (d), or (e)’’, and added par. (2). Subsec. (i)(1). Pub. L. 111–148, § 2402(c), struck out ‘‘or such other services requested by the State as the Sec- retary may approve’’ after ‘‘room and board’’. Subsec. (i)(1)(C). Pub. L. 111–148, § 2402(e)(1), added subpar. (C) and struck out former subpar. (C) which re- lated to projection of number of individuals to be pro- vided home and community-based services and State authority to limit number of eligible individuals. Subsec. (i)(1)(D)(ii)(II). Pub. L. 111–148, § 2402(e)(2), substituted ‘‘to continue to be eligible for such services after the effective date of the modification and until such time as the individual no longer meets the stand- ard for receipt of such services under such pre-modified criteria’’ for ‘‘to be eligible for such services for a pe- riod of at least 12 months beginning on the date the in- dividual first received medical assistance for such serv- ices’’. Subsec. (i)(3). Pub. L. 111–148, § 2402(f), substituted ‘‘1396a(a)(10)(B) of this title (relating to com- parability)’’ for ‘‘1396a(a)(1) of this title (relating to statewideness)’’. Subsec. (i)(6), (7). Pub. L. 111–148, § 2402(b), added pars. (6) and (7). Subsec. (k). Pub. L. 111–148, § 2401, added subsec. (k). Subsec. (k)(1). Pub. L. 111–152 substituted ‘‘October 1, 2011’’ for ‘‘October 1, 2010’’ in introductory provisions. 2006—Subsec. (g)(2) to (5). Pub. L. 109–171, § 6052(a), added pars. (2) to (5) and struck out former par. (2), which read as follows: ‘‘For purposes of this subsection, the term ‘case management services’ means services which will assist individuals eligible under the plan in gaining access to needed medical, social, educational, and other services.’’ Subsec. (i). Pub. L. 109–171, § 6086(a), added subsec. (i). Subsec. (j). Pub. L. 109–171, § 6087(a), added subsec. (j). 2004—Subsec. (c)(5)(C)(i). Pub. L. 108–446, which di- rected the substitution of ‘‘(as such terms are defined in section 1401 of title 20)’’ for ‘‘as defined in section 1401(16) and (17) of title 20)’’, was executed by making the substitution for ‘‘(as defined in paragraphs (16) and (17) of section 1401(a) of title 20)’’ to reflect the probable intent of Congress and the amendment by Pub. L. 102–119. See 1991 Amendment note below. 2002—Subsec. (b). Pub. L. 107–121 substituted ‘‘1396a(bb)’’ for ‘‘1396a(aa)’’. 2000—Subsec. (b). Pub. L. 106–554 substituted ‘‘1396a(a)(15), 1396a(aa),’’ for ‘‘1396a(a)(13)(C)’’ in intro- ductory provisions. 1999—Subsec. (b). Pub. L. 106–113, § 1000(a)(6) [title VI, § 608(z)], which directed, effective Oct. 1, 2004, substi- tution of ‘‘section’’ for ‘‘sections 1396a(a)(13)(C) and’’ in introductory provisions, could not be executed due to the amendment by Pub. L. 106–554. See 2000 Amendment note above. Pub. L. 106–113, § 1000(a)(6) [title VI, § 608(o)(1)], sub- stituted ‘‘1396a(a)(13)(C)’’ for ‘‘1396a(a)(13)(E)’’ in intro- ductory provisions. Subsec. (d)(5)(B)(iii). Pub. L. 106–113, § 1000(a)(6) [title VI, § 608(o)(2)], which directed substitution of ‘‘65’’ for ‘‘75’’ in last sentence of cl. (iii), was executed by mak- ing the substitution in the penultimate sentence to re- flect the probable intent of Congress. Subsec. (h). Pub. L. 106–113, § 1000(a)(6) [title VI, § 608(o)(3)], substituted ‘‘90 days of such date’’ for ‘‘90 day of such date’’. 1997—Subsec. (a)(1)(B)(ii)(I). Pub. L. 105–33, § 4106(c), substituted ‘‘paragraphs (16) and (17)’’ for ‘‘paragraphs (15) and (16)’’. Subsec. (c)(5). Pub. L. 105–33, § 4743(a), in introductory provisions, struck out ‘‘, with respect to individuals who receive such services after discharge from a nurs- ing facility or intermediate care facility for the men- tally retarded’’ after ‘‘ ‘habilitation services’ ’’. 1993—Subsec. (g)(1). Pub. L. 103–66 inserted ‘‘or to in- dividuals described in section 1396a(z)(1)(A) of this title’’ after ‘‘or with either,’’. 1991—Subsec. (c)(5)(C)(i). Pub. L. 102–119 substituted ‘‘(as defined in paragraphs (16) and (17) of section 1401(a) of title 20)’’ for ‘‘(as defined in section 1401(16) and (17) of title 20)’’. The reference to section 1401 of title 20 in- cludes the substitution of ‘‘Individuals with Disabil- ities Education Act’’ for ‘‘Education of the Handi- capped Act’’ in the original. 1990—Subsec. (b). Pub. L. 101–508, § 4704(b)(3), inserted ‘‘(other than sections 1396a(a)(13)(E) and 1396a(a)(10)(A) of this title insofar as it requires provision of the care and services described in section 1396d(a)(2)(C) of this title)’’ after ‘‘section 1396a of this title’’ in introduc- tory provisions. Pub. L. 101–508, § 4604(c), which directed amendment of subsec. (b) by inserting ‘‘(other than subsection (s))’’ after ‘‘Section 1396a of this title’’, was executed by in- serting the new language after ‘‘section 1396a of this title’’ to reflect the probable intent of Congress. Subsec. (b)(4). Pub. L. 101–508, § 4742(a), inserted before period at end ‘‘and if providers under such restriction are paid on a timely basis in the same manner as health care practitioners must be paid under section 1396a(a)(37)(A) of this title’’. Subsec. (c)(1). Pub. L. 101–508, § 4741(a), inserted at end ‘‘For purposes of this subsection, the term ‘room and Page 4240 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 1396n board’ shall not include an amount established under a method determined by the State to reflect the portion of costs of rent and food attributable to an unrelated personal caregiver who is residing in the same house- hold with an individual who, but for the assistance of such caregiver, would require admission to a hospital, nursing facility, or intermediate care facility for the mentally retarded.’’ Subsec. (c)(4). Pub. L. 101–508, § 4742(d)(1), inserted at end ‘‘Except as provided under paragraph (2)(D), the Secretary may not restrict the number of hours or days of respite care in any period which a State may provide under a waiver under this subsection.’’ Subsec. (c)(7)(C). Pub. L. 101–508, § 4742(c)(1), added subpar. (C). Subsec. (d)(1). Pub. L. 101–508, § 4741(a), inserted at end ‘‘For purposes of this subsection, the term ‘room and board’ shall not include an amount established under a method determined by the State to reflect the portion of costs of rent and food attributable to an un- related personal caregiver who is residing in the same household with an individual who, but for the assist- ance of such caregiver, would require admission to a hospital, nursing facility, or intermediate care facility for the mentally retarded.’’ Subsec. (d)(5)(B)(iv). Pub. L. 101–508, § 4741(b), sub- stituted ‘‘this subchapter whose provisions become ef- fective on or after such date’’ for first reference to ‘‘this subchapter’’. 1989—Subsec. (a)(1)(B)(ii)(I). Pub. L. 101–239, § 6115(c), substituted ‘‘paragraphs (15) and (16)’’ for ‘‘paragraphs (14) and (15)’’. Pub. L. 101–234, which repealed Pub. L. 100–360, § 204(d)(3), and provided that the provisions of law amended or repealed by such section are restored or re- vived as if such section had not been enacted, was not executed in view of intervening amendments made to this section by Pub. L. 101–239, § 6115(c), and to section 1395x(s) of this title by Pub. L. 101–239, § 6115(a)(1)(C). See 1988 Amendment note below. Subsec. (b)(4). Pub. L. 101–239, § 6411(c)(2), inserted ‘‘shall be consistent with the requirements of section 1396r–4 of this title and’’ after ‘‘which standards’’. 1988—Subsec. (a)(1)(B)(ii)(I). Pub. L. 100–360, § 204(d)(3), substituted ‘‘paragraphs (14) and (15)’’ for ‘‘paragraphs (13) and (14)’’. Subsec. (a)(2). Pub. L. 100–485, § 608(f)(2), substituted ‘‘restricts’’ for ‘‘Restricts’’ in introductory provisions. Subsec. (c)(7). Pub. L. 100–360, § 411(l)(3)(G), amended Pub. L. 100–203, § 4211(h)(10)(G), see 1987 Amendment note below. Subsec. (c)(7)(A). Pub. L. 100–647, § 8437(a), substituted ‘‘who are inpatients in, or who would require the level of care provided in, hospitals,’’ for ‘‘who are inpatients in hospitals,’’ and ‘‘who are inpatients in, or who would require the level of care provided in, those respective facilities’’ for ‘‘who are inpatients of those respective facilities’’. Subsec. (c)(7)(B). Pub. L. 100–360, § 411(k)(10)(H), in- serted ‘‘, without regard to the availability of beds for such inpatients’’ before period at end. Subsec. (c)(10). Pub. L. 100–360, § 411(k)(10)(A), sub- stituted ‘‘The Secretary shall not limit to fewer than 200’’ for ‘‘No waiver under this subsection shall limit by an amount less than 200’’ and ‘‘under a waiver under this subsection’’ for ‘‘under such waiver’’. Subsec. (d)(5)(B)(i), (ii). Pub. L. 100–647, § 8432(b), in in- troductory provisions, substituted ‘‘the number of years (rounded to the nearest quarter of a year) begin- ning after the base year and ending at the end of the waiver year’’ for ‘‘the number of years beginning after the base year and ending before the waiver year’’, in subcls. (I) and (II), substituted ‘‘between the beginning of the base year and the beginning of the waiver year’’ for ‘‘between the base year and the waiver year’’, and in subcl. (III), inserted ‘‘(rounded to the nearest quarter of a year)’’ after ‘‘for each year’’ and substituted ‘‘at the end of the waiver year’’ for ‘‘before the waiver year’’. Subsec. (d)(5)(B)(iii). Pub. L. 100–360, § 411(k)(3)(A)(ii), inserted before last sentence ‘‘The Secretary shall de- velop (by not later than October 1, 1989) a method for projecting, on a State-specific basis, the percentage in- crease in the number of residents in each State who are over 75 years of age for any period.’’ Subsec. (d)(5)(B)(iii)(III). Pub. L. 100–360, § 411(k)(3)(A)(i), substituted ‘‘65’’ for ‘‘75’’. Subsec. (d)(5)(B)(iv). Pub. L. 100–647, § 8432(a), added cl. (iv). Subsec. (d)(5)(C)(i). Pub. L. 100–360, § 411(k)(3)(B), sub- stituted ‘‘paragraph (4), and personal care services’’ for ‘‘paragraph (4)(B), personal care services, and services furnished pursuant to a waiver under subsection (c) of this section’’. Subsec. (e). Pub. L. 100–360, § 411(k)(17)(A)(ii), (iii), added subsec. (e), redesignated former subsec. (e)(1) as (f)(1), and struck out former subsec. (e)(2) which read as follows: ‘‘The Secretary shall report, not later than September 30, 1984, to Congress on waivers granted under this section.’’ Subsec. (f)(1). Pub. L. 100–360, § 411(k)(17)(A)(ii), redes- ignated former subsec. (e)(1) as (f)(1). Subsec. (f)(2). Pub. L. 100–360, § 411(k)(17)(A)(i), redes- ignated former subsec. (f) as subsec. (f)(2). Subsec. (h). Pub. L. 100–360, § 411(k)(10)(I), made tech- nical amendment to directory language of Pub. L. 100–203, § 4118(l)(1), see 1987 Amendment note below. Pub. L. 100–360, § 411(k)(17)(A)(iv), as amended by Pub. L. 100–485, § 608(d)(26)(M), substituted ‘‘, (d), or (e)’’ for ‘‘or (d)’’. 1987—Subsec. (a)(1)(B)(ii)(I). Pub. L. 100–203, § 4072(d), substituted ‘‘paragraphs (13) and (14)’’ for ‘‘paragraphs (12) and (13)’’. Subsec. (a)(2). Pub. L. 100–93 amended par. (2) gen- erally. Prior to amendment, par. (2) read as follows: ‘‘restricts— ‘‘(A) for a reasonable period of time the provider or providers from which an individual (eligible for med- ical assistance for items or services under the State plan) can receive such items or services, if the State has found, after notice and opportunity for a hearing (in accordance with procedures established by the State), that the individual has utilized such items or services at a frequency or amount not medically nec- essary (as determined in accordance with utilization guidelines established by the State), or ‘‘(B) (through suspension or otherwise) for a reason- able period of time the participation of a provider of items or services under the State plan, if the State has found, after notice and opportunity for a hearing (in accordance with procedures established by the State), that the provider has (in a significant number or proportion of cases) provided such items or serv- ices either (i) at a frequency or amount not medically necessary (as determined in accordance with utiliza- tion guidelines established by the State), or (ii) of a quality which does not meet professionally recog- nized standards of health care, if, under such restriction, individuals eligible for med- ical assistance for such services have reasonable access (taking into account geographic location and reason- able travel time) to such services of adequate quality.’’ Subsec. (c)(1). Pub. L. 100–203, § 4211(h)(10)(A), sub- stituted ‘‘nursing facility or intermediate care facility for the mentally retarded’’ for ‘‘skilled nursing facility or intermediate care facility’’. Subsec. (c)(2)(B). Pub. L. 100–203, § 4211(h)(10)(C), in closing provisions, substituted ‘‘need for inpatient hos- pital services, nursing facility services, or services in an intermediate care facility for the mentally re- tarded’’ for ‘‘need for such inpatient hospital, skilled nursing facility or intermediate care facility services’’. Pub. L. 100–203, § 4118(p)(10), amended Pub. L. 99–509, § 9411(a)(2). See 1986 Amendment note below. Subsec. (c)(2)(B)(i). Pub. L. 100–203, § 4211(h)(10)(B), substituted ‘‘services, nursing facility services, or serv- ices in an intermediate care facility for the mentally retarded’’ for ‘‘, skilled nursing facility, or inter- mediate care facility services’’. Subsec. (c)(2)(C). Pub. L. 100–203, § 4211(h)(10)(D), (E), substituted ‘‘, nursing facility, or intermediate care fa- Page 4241 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 1396n cility for the mentally retarded’’ for ‘‘or skilled nurs- ing facility or intermediate care facility’’ and ‘‘, nursing facility services, or services in an inter- mediate care facility for the mentally retarded’’ for ‘‘or skilled nursing facility or intermediate care facility services’’. Subsec. (c)(3). Pub. L. 100–203, § 4118(a)(1), substituted ‘‘, section 1396a(a)(10)(B) of this title (relating to com- parability), and section 1396a(a)(10)(C)(i)(III) of this title (relating to income and resource rules applicable in the community)’’ for ‘‘and section 1396a(a)(10)(B) of this title (relating to comparability)’’. Subsec. (c)(5). Pub. L. 100–203, § 4211(h)(10)(F), sub- stituted ‘‘nursing facility or intermediate care facility for the mentally retarded’’ for ‘‘skilled nursing facility or intermediate care facility’’. Subsec. (c)(7). Pub. L. 100–203, § 4211(h)(10)(G), as amended by Pub. L. 100–360, § 411(l)(3)(G), substituted ‘‘, nursing facilities, or intermediate care facilities for the mentally retarded’’ for ‘‘or in skilled nursing or in- termediate care facilities’’ in subpar. (A) and ‘‘nursing facility’’ for ‘‘skilled nursing facility or intermediate care facility’’ in subpar. (B). Pub. L. 100–203, § 4118(k), designated existing provi- sions as subpar. (A) and added subpar. (B). Subsec. (c)(10). Pub. L. 100–203, § 4118(b), added par. (10). Subsec. (d). Pub. L. 100–203, § 4102(a)(1), added subsec. (d). Former subsec. (d) redesignated (h). Subsec. (g)(1). Pub. L. 100–203, § 4118(i)(1), inserted at end ‘‘The State may limit the case managers available with respect to case management services for eligible individuals with developmental disabilities or with chronic mental illness in order to ensure that the case managers for such individuals are capable of ensuring that such individuals receive needed services.’’ Subsec. (h). Pub. L. 100–203, § 4118(l)(1), as amended by Pub. L. 100–360, § 411(k)(10)(I), substituted ‘‘, within 90 days after the date of its submission to the Secretary, either denies such request in writing or informs the State agency in writing with respect to any additional information which is needed in order to make a final determination with respect to the request. After the date the Secretary receives such additional informa- tion, the request shall be deemed granted unless the Secretary, within 90 day of such date, denies such re- quest.’’ for ‘‘denies such request in writing within 90 days after the date of its submission to the Secretary.’’ Pub. L. 100–203, § 4102(b)(2), substituted ‘‘subsection (c) or (d)’’ for ‘‘subsection (c)’’. Pub. L. 100–203, § 4102(a)(1)(A), redesignated former subsec. (d) as (h). 1986—Subsec. (a)(1)(B)(ii)(I). Pub. L. 99–509, § 9320(h)(3), substituted ‘‘paragraphs (12) and (13)’’ for ‘‘paragraphs (11) and (12)’’. Subsec. (b). Pub. L. 99–272, § 9508(a)(2), inserted provi- sion, following par. (4), that no waiver under this sub- section may restrict the choice of the individual in re- ceiving services under section 1396d(a)(4)(C) of this title. Subsec. (c)(1). Pub. L. 99–509, § 9411(a)(1), inserted ‘‘a hospital or’’ after ‘‘level of care provided in’’, and struck out provision added by Pub. L. 99–272, § 9502(b)(1). Pub. L. 99–272, § 9502(b)(1), inserted provision relating to individuals with respect to whom there has been a determination that but for the provision of such serv- ices the individuals would continue to receive inpatient hospital services, skilled nursing facility services, or intermediate care facility services because they are de- pendent on ventilator support the cost of which is re- imbursed under the State plan. Subsec. (c)(2)(B). Pub. L. 99–509, § 9411(a)(2), as amend- ed by Pub. L. 100–203, § 4118(p)(10), substituted ‘‘inpa- tient hospital, skilled nursing facility, or’’ for ‘‘skilled nursing facility or’’ in cl. (i) and inserted ‘‘inpatient hospital,’’ after ‘‘need for such’’ in concluding provision following cl. (iii). Subsec. (c)(2)(C). Pub. L. 99–272, § 9502(b)(2), inserted ‘‘hospital or’’ after ‘‘provided in a’’, and ‘‘inpatient hos- pital services or’’ after ‘‘the provision of’’. Subsec. (c)(2)(D). Pub. L. 99–272, § 9502(c)(1), inserted ‘‘100 percent of’’ after ‘‘does not exceed’’. Subsec. (c)(3). Pub. L. 99–509, § 9411(c), substituted ‘‘and section 1396a(a)(10)(B) of this title (relating to comparability)’’ for ‘‘and section 1396a(a)(10) of this title’’. Pub. L. 99–272, § 9502(g), substituted ‘‘additional five- year periods’’ for ‘‘additional three-year periods’’, and ‘‘previous waiver period’’ for ‘‘previous three-year pe- riod’’. Pub. L. 99–272, § 9502(e), inserted at end ‘‘A waiver may provide, with respect to post-eligibility treatment of income of all individuals receiving services under that waiver, that the maximum amount of the individ- ual’s income which may be disregarded for any month for the maintenance needs of the individual may be an amount greater than the maximum allowed for that purpose under regulations in effect on July 1, 1985.’’ Subsec. (c)(4)(B). Pub. L. 99–509, § 9411(d), inserted be- fore the period ‘‘and for day treatment or other partial hospitalization services, psychosocial rehabilitation services, and clinic services (whether or not furnished in a facility) for individuals with chronic mental ill- ness’’. Subsec. (c)(5). Pub. L. 99–272, § 9502(a), added par. (5). Subsec. (c)(6). Pub. L. 99–272, § 9502(c)(2), added par. (6). Subsec. (c)(7). Pub. L. 99–509, § 9411(a)(3), amended par. (7) generally. Prior to amendment, par. (7) read as fol- lows: ‘‘In making estimates under paragraph (2)(D) in the case of a waiver which applies only to physically disabled individuals who are inpatients in skilled nurs- ing or intermediate care facilities, the State may de- termine the average per capita expenditure which would have been made in a fiscal year for those individ- uals under the State plan separately from the expendi- ture for other individuals who are inpatients of those facilities.’’ Pub. L. 99–272, § 9502(d), added par. (7). Subsec. (c)(8). Pub. L. 99–272, § 9502(h), added par. (8). Subsec. (c)(9). Pub. L. 99–272, § 9502(i), added par. (9). Subsec. (g). Pub. L. 99–272, § 9508(a)(1), added subsec. (g). Subsec. (g)(1). Pub. L. 99–509, § 9411(b), inserted provi- sion at end allowing a State to limit case management services to AIDS victims or to individuals with chronic mental illness. 1984—Subsec. (c)(1). Pub. L. 98–369 substituted ‘‘under this subchapter’’ for ‘‘under this part’’. 1983—Subsec. (c)(2)(B). Pub. L. 97–448 substituted ‘‘need for such skilled nursing facility or intermediate care facility services’’ for ‘‘need for such services’’ in provisions following cl. (iii). 1982—Subsec. (b). Pub. L. 97–248, § 137(b)(19)(A), struck out ‘‘and section 1396b(m) of this title’’ after ‘‘section 1396a of this title’’. Subsec. (b)(1). Pub. L. 97–248, § 137(b)(20), inserted ‘‘primary care’’ before ‘‘case-management system’’, and substituted ‘‘medical care services’’ for ‘‘primary care services’’. Subsec. (c)(1). Pub. L. 97–248, § 137(b)(21), inserted ‘‘payment for part or all of the cost of’’ after ‘‘may in- clude as ‘medical assistance’ under such plan’’. Subsec. (c)(2)(B). Pub. L. 97–248, § 137(b)(22), redesig- nated existing provisions as cls. (i) and (ii) and added cl. (iii). Subsec. (c)(3). Pub. L. 97–248, § 137(b)(23), substituted ‘‘section 1396a(a)(1) of this title’’ for ‘‘subsection (a)(1) of this section’’ and ‘‘section 1396a(a)(10) of this title’’ for ‘‘subsection (a)(10) of section 1396a of this title’’. Subsec. (c)(4). Pub. L. 97–248, § 137(b)(24), substituted ‘‘this subsection’’ for ‘‘this section’’. Subsec. (f). Pub. L. 97–248, § 137(b)(25), inserted ‘‘ap- proval of’’ before ‘‘a proposed State plan’’. 1981—Subsecs. (c) to (e). Pub. L. 97–35, § 2176, added subsec. (c), redesignated former subsec. (c) as (d) and inserted ‘‘(other than a waiver under subsection (c))’’, and redesignated former subsec. (d) as (e). Subsec. (f). Pub. L. 97–35, § 2177(a), added subsec. (f). Page 4242 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 1396n Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 2024 AMENDMENT Pub. L. 118–42, div. G, title I, § 204(c)(1)(B), Mar. 9, 2024, 138 Stat. 404, provided that: ‘‘The amendments made by subparagraph (A) [amending this section] shall apply with respect to States providing medical assist- ance for items and services pursuant to a State plan amendment under section 1915(l) of the Social Security Act (42 U.S.C. 1396n(l)) in calendar quarters beginning on or after October 1, 2025.’’ EFFECTIVE DATE OF 2010 AMENDMENT Amendment by section 2402(b), (c), (e), (f) of Pub. L. 111–148 effective on the first day of the first fiscal year quarter that begins after Mar. 23, 2010, see section 2402(g) of Pub. L. 111–148, set out as an Effective and Termination Dates of 2010 Amendment note under sec- tion 1396a of this title. EFFECTIVE DATE OF 2006 AMENDMENT Pub. L. 109–171, title VI, § 6052(c), Feb. 8, 2006, 120 Stat. 95, provided that: ‘‘The amendment made by subsection (a) [amending this section] shall take effect on January 1, 2006.’’ Pub. L. 109–171, title VI, § 6086(c), Feb. 8, 2006, 120 Stat. 127, provided that: ‘‘The amendments made by sub- sections (a) and (b) [amending this section] take effect on January 1, 2007, and apply to expenditures for med- ical assistance for home and community-based services provided in accordance with section 1915(i) of the Social Security Act [42 U.S.C. 1396n(i)] (as added by sub- sections (a) and (b) [probably means subsec. (a)]) on or after that date.’’ Pub. L. 109–171, title VI, § 6087(b), Feb. 8, 2006, 120 Stat. 130, provided that: ‘‘The amendment made by sub- section (a) [amending this section] shall apply to serv- ices furnished on or after January 1, 2007.’’ EFFECTIVE DATE OF 2002 AMENDMENT Amendment by Pub. L. 107–121 effective as if included in the enactment of section 702 of the Medicare, Med- icaid, and SCHIP Benefits Improvement and Protection Act of 2000 as enacted into law by section 1(a)(6) of Pub. L. 106–554, see section 2(c)(2) of Pub. L. 107–121, set out as a note under section 1396a of this title. EFFECTIVE DATE OF 2000 AMENDMENT Amendment by Pub. L. 106–554 effective Jan. 1, 2001, and applicable to services furnished on or after such date, see section 1(a)(6) [title VII, § 702(e)] of Pub. L. 106–554, set out as a note under section 1396a of this title. EFFECTIVE DATE OF 1999 AMENDMENT Pub. L. 106–113, div. B, § 1000(a)(6) [title VI, § 608(z)], Nov. 29, 1999, 113 Stat. 1536, 1501A–398, provided that the amendment made by section 1000(a)(6) [title VI, § 608(z)] is effective Oct. 1, 2004. Amendment by section 1000(a)(6) [title VI, § 608o] of Pub. L. 106–113 effective Nov. 29, 1999, see section 1000(a)(6) [title VI, § 608(bb)] of Pub. L. 106–113, set out as a note under section 1396a of this title. EFFECTIVE DATE OF 1997 AMENDMENT Amendment by section 4106(c) of Pub. L. 105–33 appli- cable to bone mass measurements performed on or after July 1, 1998, see section 4106(d) of Pub. L. 105–33, set out as a note under section 1395x of this title. Pub. L. 105–33, title IV, § 4743(b), Aug. 5, 1997, 111 Stat. 524, provided that: ‘‘The amendment made by sub- section (a) [amending this section] apply to services furnished on or after October 1, 1997.’’ EFFECTIVE DATE OF 1993 AMENDMENT Amendment by Pub. L. 103–66 applicable to medical assistance furnished on or after Jan. 1, 1994, without re- gard to whether or not final regulations to carry out the amendments by section 13603 of Pub. L. 103–66 have been promulgated by such date, see section 13603(f) of Pub. L. 103–66, set out as a note under section 1396a of this title. EFFECTIVE DATE OF 1990 AMENDMENT Amendment by section 4604(c) of Pub. L. 101–508 effec- tive with respect to payments under this subchapter for calendar quarters beginning on or after July 1, 1991, without regard to whether or not final regulations to carry out the amendments by section 4604 of Pub. L. 101–508 have been promulgated by such date, see section 4604(d) of Pub. L. 101–508, set out as a note under sec- tion 1396a of this title. Amendment by section 4704(b)(3) of Pub. L. 101–508 ef- fective as if included in the enactment of the Omnibus Budget Reconciliation Act of 1989, Pub. L. 101–239, see section 4704(f) of Pub. L. 101–508, set out as a note under section 1396a of this title. Pub. L. 101–508, title IV, § 4742(b), Nov. 5, 1990, 104 Stat. 1388–197, provided that: ‘‘The amendment made by subsection (a) [amending this section] shall take effect as of the first calendar quarter beginning more than 30 days after the date of the enactment of this Act [Nov. 5, 1990].’’ Pub. L. 101–508, title IV, § 4742(c)(2), Nov. 5, 1990, 104 Stat. 1388–198, provided that: ‘‘The amendment made by paragraph (1) [amending this section] shall apply as if included in the enactment of the Omnibus Budget Rec- onciliation Act of 1981 [Pub. L. 97–35], but shall only apply to facilities the participation of which under a State plan under title XIX of the Social Security Act [42 U.S.C. 1396 et seq.] is terminated on or after the date of the enactment of this Act [Nov. 5, 1990].’’ Pub. L. 101–508, title IV, § 4742(d)(2), Nov. 5, 1990, 104 Stat. 1388–198, provided that: ‘‘The amendment made by paragraph (1) [amending this section] shall apply as if included in the enactment of the Omnibus Budget Rec- onciliation Act of 1981 [Pub. L. 97–35].’’ EFFECTIVE DATE OF 1989 AMENDMENT Amendment by section 6115(c) of Pub. L. 101–239 appli- cable to screening pap smears performed on or after July 1, 1990, see section 6115(d) of Pub. L. 101–239, set out as a note under section 1395x of this title. Pub. L. 101–239, title VI, § 6411(c)(4), Dec. 19, 1989, 103 Stat. 2270, provided that: ‘‘The amendment made by paragraph (2) [amending this section] shall be effective as if included in the enactment of the Omnibus Budget Reconciliation Act of 1987 [Pub. L. 100–203].’’ Amendment by Pub. L. 101–234 effective Jan. 1, 1990, see section 201(c) of Pub. L. 101–234, set out as a note under section 1320a–7a of this title. EFFECTIVE DATE OF 1988 AMENDMENT Pub. L. 100–647, title VIII, § 8432(c), Nov. 10, 1988, 102 Stat. 3804, provided that: ‘‘The amendments made by this section [amending this section] shall apply to waiver years beginning during or after fiscal year 1989.’’ Pub. L. 100–647, title VIII, § 8437(b), Nov. 10, 1988, 102 Stat. 3806, provided that: ‘‘The amendment made by subsection (a) [amending this section] shall apply with respect to waiver applications submitted before, on, or after the date of the enactment of this Act [Nov. 10, 1988].’’ Amendment by section 608(d)(26)(M) of Pub. L. 100–485 effective as if included in the enactment of the Medi- care Catastrophic Coverage Act of 1988, Pub. L. 100–360, see section 608(g)(1) of Pub. L. 100–485, set out as a note under section 704 of this title. Amendment by section 608(f)(2) of Pub. L. 100–485 ef- fective Oct. 13, 1988, see section 608(g)(2) of Pub. L. 100–485, set out as a note under section 704 of this title. Amendment by section 204(d)(3) of Pub. L. 100–360 ap- plicable to screening mammography performed on or after Jan. 1, 1990, see section 204(e) of Pub. L. 100–360, set out as a note under section 1395m of this title. Except as specifically provided in section 411 of Pub. L. 100–360, amendment by section 411(k)(3), (10)(A), (H), Page 4243 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 1396n (I), (17)(A), (l)(3)(G) of Pub. L. 100–360, as it relates to a provision in the Omnibus Budget Reconciliation Act of 1987, Pub. L. 100–203, effective as if included in the en- actment of that provision in Pub. L. 100–203, see section 411(a) of Pub. L. 100–360, set out as a Reference to OBRA; Effective Date note under section 106 of Title 1, General Provisions. EFFECTIVE DATE OF 1987 AMENDMENT For effective date of amendment by section 4072(d) of Pub. L. 100–203, see section 4072(e) of Pub. L. 100–203, set out as a note under section 1395x of this title. Pub. L. 100–203, title IV, § 4102(a)(2), Dec. 22, 1987, 101 Stat. 1330–146, provided that: ‘‘The amendments made by paragraph (1) [amending this section] shall become effective on January 1, 1988.’’ Pub. L. 100–203 , title IV, § 4118(a)(2), Dec. 22, 1987, 101 Stat. 1330–155, provided that: ‘‘The amendment made by paragraph (1) [amending this section] shall be effective as if included in the enactment of the Omnibus Budget Reconciliation Act of 1986 [Pub. L. 99–509].’’ Pub. L. 100–203, title IV, § 4118(i)(2), Dec. 22, 1987, 101 Stat. 1330–156, provided that: ‘‘The amendment made by paragraph (1) [amending this section] shall take effect as though it were included in the enactment of the Con- solidated Omnibus Budget Reconciliation Act of 1985 [Pub. L. 99–272].’’ Pub. L. 100–203, title IV, § 4118(l)(2), Dec. 22, 1987, 101 Stat. 1330–157, provided that: ‘‘The amendment made by paragraph (1) [amending this section] shall apply to re- quests for continuation of waivers received after the date of the enactment of this Act [Dec. 22, 1987].’’ Pub. L. 100–203, title IV, § 4118(p)(10), Dec. 22, 1987, 101 Stat. 1330–160, provided that the amendment made by that section is effective as if included in the enactment of Pub. L. 99–509. Amendment by section 4211(h)(10) of Pub. L. 100–203 applicable to nursing facility services furnished on or after Oct. 1, 1990, without regard to whether regulations implementing such amendment are promulgated by such date, except as otherwise specifically provided in section 1396r of this title, with transitional rule, see section 4214(a), (b)(2) of Pub. L. 100–203, as amended, set out as an Effective Date note under section 1396r of this title. Amendment by Pub. L. 100–93 effective at end of four- teen-day period beginning Aug. 18, 1987, and inappli- cable to administrative proceedings commenced before end of such period, see section 15(a) of Pub. L. 100–93, set out as a note under section 1320a–7 of this title. EFFECTIVE DATE OF 1986 AMENDMENT Amendment by section 9320(h)(3) of Pub. L. 99–509 ap- plicable to services furnished on or after Jan. 1, 1989, with exceptions for hospitals located in rural areas which meet certain requirements related to certified registered nurse anesthetists, see section 9320(i), (k) of Pub. L. 99–509, as amended, set out as notes under sec- tion 1395k of this title. Pub. L. 99–509, title IX, § 9411(e), Oct. 21, 1986, 100 Stat. 2062, provided that: ‘‘The amendments made by this section [amending this section] shall apply to applica- tions for waivers (or renewals thereof) approved on or after the date of the enactment of this Act [Oct. 21, 1986].’’ Pub. L. 99–272, title IX, § 9502(j), Apr. 7, 1986, 100 Stat. 204, as amended by Pub. L. 99–509, title IX, § 9435(a), Oct. 21, 1986, 100 Stat. 2069; Pub. L. 100–203, title IV, § 4118(j), Dec. 22, 1987, 101 Stat. 1330–156, provided that: ‘‘(1) HABILITATION SERVICES.—The amendment made by subsection (a) [amending this section] shall be effec- tive for services furnished on or after the date of the enactment of this Act [Apr. 7, 1986] to individuals eligi- ble for services under a waiver granted under section 1915(c) of the Social Security Act [42 U.S.C. 1396n(c)], without regard to whether such individuals were re- ceiving institutional services before their participation in the waiver. ‘‘(2) HOSPITALIZED PATIENTS.—The amendments made by subsection (b) [amending this section] shall be effec- tive for services furnished on or after October 1, 1985. ‘‘(3) PROHIBITION OF REGULATORY LIMITS AND TREAT- MENT OF CERTAIN PHYSICALLY DISABLED INDIVIDUALS.— The amendments made by subsections (c) and (d) [amending this section] shall apply to applications for waivers (or renewals thereof) filed before, on, or after, the date of the enactment of this Act [Apr. 7, 1986] and for services furnished on or after August 13, 1981. ‘‘(4) INCOME STANDARDS.—The amendment made by subsection (e) [amending this section] shall apply to waivers (or renewals thereof) approved before, on, or after the date of the enactment of this Act [Apr. 7, 1986]. ‘‘(5) WAIVER EXTENSIONS.—Subsection (f) [enacting provisions set out below] shall apply to waivers expir- ing on or after September 30, 1985, and before Sep- tember 30, 1986. ‘‘(6) WAIVER RENEWALS.—The amendments made by subsection (g) [amending this section] shall become ef- fective on September 30, 1986. ‘‘(7) COORDINATED SERVICES AND SUBSTITUTION OF PAR- TICIPANTS.—The amendments made by subsections (h) and (i) [amending this section] shall become effective on the date of the enactment of this Act [Apr. 7, 1986].’’ Pub. L. 99–272, title IX, § 9508(b), Apr. 7, 1986, 100 Stat. 211, as amended by Pub. L. 99–509, title IX, § 9435(d)(1), Oct. 21, 1986, 100 Stat. 2070, provided that: ‘‘The amend- ments made by this section [amending this section] shall apply to services furnished on or after the date of the enactment of this Act [Apr. 7, 1986], without regard to whether or not regulations to carry out the amend- ments have been promulgated by that date.’’ [Pub. L. 100–203, title IV, § 4118(j), Dec. 22, 1987, 101 Stat. 1330–156, provided that the amendment made by that section to section 9502(j)(1) of Pub. L. 99–272, set out above, is effective as if included in the enactment of section 9502 of Pub. L. 99–272.] EFFECTIVE DATE OF 1983 AMENDMENT Amendment by Pub. L. 97–448 effective as if originally included as a part of this section as this section was amended by the Tax Equity and Fiscal Responsibility Act of 1982, Pub. L. 97–248, see section 309(c)(2) of Pub. L. 97–448, set out as a note under section 426–1 of this title. EFFECTIVE DATE OF 1982 AMENDMENT Pub. L. 97–248, title I, § 137(b)(19)(B), Sept. 3, 1982, 96 Stat. 380, provided that: ‘‘The amendment made by sub- paragraph (A) [amending this section] shall not apply with respect to any waiver if such waiver was granted, and the arrangement covered by the waiver was in place, prior to August 10, 1982.’’ Amendment by section 137(b)(20)–(25) of Pub. L. 97–248 effective as if originally included as part of this section as this section was amended by the Omnibus Budget Reconciliation Act of 1981, Pub. L. 97–35, see section 137(d)(2) of Pub. L. 97–248, set out as a note under sec- tion 1396a of this title. EFFECTIVE DATE OF 1981 AMENDMENT Pub. L. 97–35, title XXI, § 2177(b), Aug. 13, 1981, 95 Stat. 813, provided that: ‘‘The amendment made by this sec- tion [amending this section] shall become effective 90 days after the date of the enactment of this Act [Aug. 13, 1981]’’. REGULATIONS Pub. L. 109–171, title VI, § 6052(b), Feb. 8, 2006, 120 Stat. 95, provided that: ‘‘The Secretary shall promulgate reg- ulations to carry out the amendment made by sub- section (a) [amending this section] which may be effec- tive and final immediately on an interim basis as of the date of publication of the interim final regulation. If the Secretary provides for an interim final regulation, the Secretary shall provide for a period of public com- ments on such regulation after the date of publication. The Secretary may change or revise such regulation after completion of the period of public comment.’’ Page 4244 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 1396o CONSTRUCTION OF 2018 AMENDMENT Pub. L. 115–271, title V, § 5052(b), Oct. 24, 2018, 132 Stat. 3976, provided that: ‘‘Nothing in the amendments made by subsection (a) [amending this section and section 1396d of this title] shall be construed as encouraging a State to place an individual in an inpatient or a resi- dential care setting where a home or community-based care setting would be more appropriate for the indi- vidual, or as preventing a State from conducting or pursuing a demonstration project under section 1115 of the Social Security Act [42 U.S.C. 1315] to improve ac- cess to, and the quality of, substance use disorder treatment for eligible populations.’’ APPLICATION TO CERTAIN STATES Pub. L. 118–42, div. G, title I, § 204(d), Mar. 9, 2024, 138 Stat. 405, provided that: ‘‘Notwithstanding section 430.20 of title 42, Code of Federal Regulations, the Sec- retary of Health and Human Services may approve a re- quest to renew a State plan amendment under section 1915(l) of the Social Security Act (42 U.S.C. 1396n(l)) with an effective date of October 1, 2023, if the State making such request— ‘‘(1) had approval for a State plan amendment under such section as of September 30, 2023; and ‘‘(2) submits the request to renew such amendment not later than 60 days after the date of enactment of this Act [Mar. 9, 2024].’’ OVERSIGHT AND ASSESSMENT OF THE ADMINISTRATION OF HOME AND COMMUNITY-BASED SERVICES Pub. L. 111–148, title II, § 2402(a), Mar. 23, 2010, 124 Stat. 301, provided that: ‘‘The Secretary of Health and Human Services shall promulgate regulations to ensure that all States develop service systems that are de- signed to— ‘‘(1) allocate resources for services in a manner that is responsive to the changing needs and choices of beneficiaries receiving non-institutionally-based long-term services and supports (including such serv- ices and supports that are provided under programs other [than] the State Medicaid program), and that provides strategies for beneficiaries receiving such services to maximize their independence, including through the use of client-employed providers; ‘‘(2) provide the support and coordination needed for a beneficiary in need of such services (and their family caregivers or representative, if applicable) to design an individualized, self-directed, community- supported life; and ‘‘(3) improve coordination among, and the regula- tion of, all providers of such services under federally and State-funded programs in order to— ‘‘(A) achieve a more consistent administration of policies and procedures across programs in relation to the provision of such services; and ‘‘(B) oversee and monitor all service system func- tions to assure— ‘‘(i) coordination of, and effectiveness of, eligi- bility determinations and individual assessments; ‘‘(ii) development and service monitoring of a complaint system, a management system, a sys- tem to qualify and monitor providers, and sys- tems for role-setting and individual budget deter- minations; and ‘‘(iii) an adequate number of qualified direct care workers to provide self-directed personal as- sistance services.’’ QUALITY OF CARE MEASURES Pub. L. 109–171, title VI, § 6086(b), Feb. 8, 2006, 120 Stat. 127, provided that: ‘‘(1) IN GENERAL.—The Secretary, acting through the Director of the Agency for Healthcare Research and Quality, shall consult with consumers, health and so- cial service providers and other professionals knowl- edgeable about long-term care services and supports to develop program performance indicators, client func- tion indicators, and measures of client satisfaction with respect to home and community-based services of- fered under State Medicaid programs. ‘‘(2) BEST PRACTICES.—The Secretary shall— ‘‘(A) use the indicators and measures developed under paragraph (1) to assess such home and commu- nity-based services, the outcomes associated with the receipt of such services (particularly with respect to the health and welfare of the recipient of the serv- ices), and the overall system for providing home and community-based services under the Medicaid pro- gram under title XIX of the Social Security Act [42 U.S.C. 1396 et seq.]; and ‘‘(B) make publicly available the best practices identified through such assessment and a compara- tive analyses of the system features of each State. ‘‘(3) APPROPRIATION.—Out of any funds in the Treas- ury not otherwise appropriated, there is appropriated to the Secretary of Health and Human Services, $1,000,000 for the period of fiscal years 2006 through 2010 to carry out this subsection.’’ PERMITTING ADJUSTMENT IN ESTIMATES TO TAKE INTO ACCOUNT PREADMISSION SCREENING REQUIREMENT Pub. L. 101–508, title IV, § 4742(e), Nov. 5, 1990, 104 Stat. 1388–198, provided that: ‘‘In the case of a waiver under section 1915(c) of the Social Security Act [42 U.S.C. 1396n(c)] for individuals with mental retardation or a related condition in a State, the Secretary of Health and Human Services shall permit the State to adjust the estimate of average per capita expenditures submitted under paragraph (2)(D) of such section, with respect to such expenditures made on or after January 1, 1989, to take into account increases in expenditures for, or utilization of, intermediate care facilities for the mentally retarded resulting from implementation of section 1919(e)(7)(A) of such Act [42 U.S.C. 1396r(e)(7)(A)].’’ EXTENSIONS OF WAIVERS UNDER SUBSECTION (c) Pub. L. 100–203, title IV, § 4102(c), Dec. 22, 1987, 101 Stat. 1330–146, provided that: ‘‘In the case of a State which, as of December 1, 1987, has a waiver approved with respect to elderly individuals under section 1915(c) of the Social Security Act [42 U.S.C. 1396n(c)], which waiver is scheduled to expire before July 1, 1988, if the State notifies the Secretary of Health and Human Serv- ices of the State’s intention to file an application for a waiver under section 1915(d) of such Act (as amended by subsection (a) of this section), the Secretary shall ex- tend approval of the State’s waiver, under section 1915(c) of such Act, on the same terms and conditions through September 30, 1988.’’ Pub. L. 99–272, title IX, § 9502(f), Apr. 7, 1986, 100 Stat. 204, provided that: ‘‘The Secretary of Health and Human Services shall extend, upon request of the State, any waiver under section 1915(c) of the Social Se- curity Act [42 U.S.C. 1396n(c)] which expires on or after September 30, 1985, and before September 30, 1986. Such extension shall be for a period of not less than one year nor more than five years, subject to section 1915(e)(1) of such Act.’’ § 1396o. Use of enrollment fees, premiums, deduc- tions, cost sharing, and similar charges (a) Imposition of certain charges under plan in case of individuals described in section 1396a(a)(10)(A) or (E) Subject to subsections (g), (i), and (j), the State plan shall provide that in the case of indi- viduals described in subparagraph (A) or (E)(i) of section 1396a(a)(10) of this title who are eligible under the plan— (1) no enrollment fee, premium, or similar charge will be imposed under the plan (except for a premium imposed under subsection (c)); (2) no deduction, cost sharing or similar charge will be imposed under the plan with re- spect to—