Independence, Dignity and Choice in Long-Term Care

Suggested State Legislation:  This Act is designed to balance funding between programs that pay for nursing home care and programs that pay for home and community-based care to people who need long-term care.

Submitted as:
New Jersey
Chapter 23, Public Laws of 2006
Status: Enacted into law in 2006.

Suggested State Legislation, 2009 Docket

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(Title, enacting clause, etc.)

Section 1. [1 Short Title.] This Act shall be cited as the “Independence, Dignity and Choice
in Long-Term Care Act.”

Section 2. [Findings, Declarations Relative to Long-Term Care for Medicaid Recipients.]
The Legislature finds and declares that:
a. The current population of adults [60] years and older in this state is [insert
number] and this number is expected to [double] in size over the next [25] years;
b. A primary objective of public policy governing access to long-term care in this
state shall be to promote the independence, dignity and lifestyle choice of older adults and people
with physical disabilities or Alzheimer’s disease and related disorders;
c. Many states are actively seeking to “rebalance” their long-term care programs
and budgets in order to support consumer choice and offer more choices to older adults and people with disabilities to live in their homes and communities;
d. This state has been striving to redirect long-term care away from an over-reliance
on institutional care toward home and community-based options;
e. It is still easier for older adults and people with disabilities to qualify for
Medicaid long-term care coverage if they are admitted to a nursing home than if they seek to
obtain services through one of the Medicaid home and community-based long-term care options
available in this state;
f. Older adults and those with physical disabilities or Alzheimer’s disease and
related disorders that require a nursing facility level of care should not be forced to choose
between going into a nursing home or giving up the medical assistance that pays for their needed
services, and thereby be denied the right to choose where they receive those services;
g. Eligibility for home and community-based long-term care services under
Medicaid should be based upon the same income and asset standards as those used to determine
eligibility for long-term care in an institutional setting; and
h. This bill ensures that, in the case of Medicaid-funded long-term care services,
“the money follows the person” to allow maximum flexibility between nursing homes and home
and community-based settings.

Section 3. [Definitions Relative to Long-Term Care for Medicaid Recipients.] As used in
this Act:
a. “Commissioner” means the [Commissioner of Health and Senior Services].
b. “Funding parity between nursing home care and home and community-based
care” means that the distribution of the amounts expended for these two categories of long-term
care under the Medicaid program reflects an appropriate balance between the service delivery
costs of those people whose needs and preferences can most appropriately be met in a nursing
home and those people whose needs and preferences can most appropriately be met in a home or
community-based setting.
c. “Home and community-based care” means Medicaid home and community41
Care Program for the Elderly and Disabled, Assisted Living, Adult Family Care, Caregiver
Assistance Program, Adult Day Health Services, Traumatic Brain Injury, AIDS Community Care
Alternatives Program, Community Resources for People with Disabilities, and Community
Resources for People with Disabilities Private Duty Nursing].

Section 4. [Process to Rebalance Allocation of Funding for Expansion of Long-Term Care
Services; Pilot Program, Use Statewide.]
(1) a. Beginning in [fiscal year 2008, and in each succeeding fiscal year through fiscal
year 2013], the [commissioner of aging], in consultation with the [State Treasurer] and the
[Commissioner of Human Services] and in accordance with the provisions of this section, shall
implement a process that rebalances the overall allocation of funding within the [Department of
Health and Senior Services] for long-term care services through the expansion of home and
community-based services for people eligible for long-term care as defined by regulation of the
[commissioner]. The expansion of home and community-based services shall be funded, within
the existing level of appropriations, by diverting people in need of long-term care to allow
maximum flexibility between nursing home placements and home and community-based services.
The [State Treasurer], after review and analysis, shall determine the transfer of such funding to
home and community-based services provided by the [Departments of Health and Senior Services]
and [Human Services] as is necessary to effectuate the purposes of this Act.
b. Beginning in [fiscal year 2008], and in each succeeding [fiscal year through
fiscal year 2013], funds equal to the amount of the reduction in the projected growth of Medicaid
expenditures for nursing home care pursuant to paragraph (1) of this subsection, for state dollars
only plus the percentage anticipated for programs and people that will receive federal matching
dollars, shall be reallocated to home and community-based care through a global budget and
expended solely for such care, until the [commissioner] determines that total Medicaid
expenditures for long-term care have been sufficiently rebalanced to achieve funding parity
between nursing home care and home and community-based care. Any funds so reallocated, which
are not expended in the fiscal year in which they are reallocated, shall be reserved for expenditures for home and community-based care in a subsequent fiscal year.
c. Subject to federal approval, the home and community-based services to which
funds are reallocated pursuant to this Act shall include services designated by the [commissioner],
in consultation with the [Commissioner of Human Services] and the [Medicaid Long-Term Care
Funding Advisory Council] established pursuant to this Act.
d. Notwithstanding the provisions of this subsection to the contrary, this Act shall
not be construed to authorize a reduction in funding for Medicaid-approved services based upon
the approved State Medicaid nursing home reimbursement methodology, including existing cost
screens used to determine daily rates, annual rebasing and inflationary adjustments.
(2) The [commissioner], in consultation with the [Commissioner of Human Services], shall
adopt modifications to the Medicaid Long-Term Care Intake System that promote increased use of
home and community-based services. These modifications shall include the following:
a. commencing [March 1, 2007], on a pilot basis in [counties] pursuant to [insert
citation]:
(i) the provision of home and community-based services available under
Medicaid, as designated by the [commissioner], in consultation with the [Commissioner of Human
Services] and the [Medicaid Long-Term Care Funding Advisory Council] established pursuant to
this Act, pending completion of a formal Medicaid Financial Eligibility Determination for the
recipient of services, for a period that does not exceed a time limit established by the
[commissioner]; except that the cost of any services provided pursuant to this subparagraph to a
person who is subsequently determined to be ineligible for Medicaid may be recovered from that
person; and
(ii) the use of mechanisms for making fast-track Medicaid eligibility
determinations, a revised clinical assessment instrument, and a computerized tracking system for
Medicaid long-term care expenditures; and
b. commencing [March 1, 2008], expansion of the services and measures provided
for in paragraph (1) of this subsection to all of the remaining counties in the state, subject to the
[commissioner] conducting or otherwise providing for an evaluation of the pilot programs in
[counties] prior to that date and determining from that evaluation that the pilot programs are cost
effective and should be expanded statewide.

Section 5. [Duties of Commissioner Relative to Report on Budget, Management Plan.]
(1) The [commissioner], in consultation with the [Medicaid Long-Term Care Funding
Advisory Council] established pursuant to this Act, shall:
a. No later than [October 1, 2007], present a report to the [Governor and the
Legislature] pursuant to [insert citation], that provides a detailed budget and management plan for
effectuating the purposes of this Act, including a projected schedule and procedures for the
implementation and operation of the Medicaid long-term care expenditure reforms required
pursuant thereto; and [Legislature] pursuant to [insert citation], that documents the reallocation of funds to home and community-based care pursuant to this Act, and present an updated report no later than [January 1] of each succeeding year until the [commissioner] determines that total Medicaid expenditures for long-term care have been sufficiently rebalanced to achieve funding parity between nursing home care and home and community-based care, at which point the [commissioner] shall document and certify to the [Governor and the Legislature] that such funding parity has been achieved.

Section 6. [Duties of Commissioner Relative to Funding Parity, Coordination, Assessment
Instrument.]
(1) The [commissioner], in consultation with the [Medicaid Long-Term Care Funding
Advisory Council] established pursuant to this Act, shall:
a. Implement, by such time as the [commissioner] certifies to the [Governor and the
Legislature] that funding parity has been achieved pursuant to this Act, a comprehensive data
system to track long-term care expenditures and services and consumer profiles and preferences.
The data system shall include, but not be limited to: the number of vacant nursing home beds
annually and the number of nursing home residents transferred to home and community-based
care pursuant to this Act; annual long-term care expenditures for nursing home care and each of
the home and community based long-term care options available to Medicaid recipients; and
annual percentage changes in both long-term care expenditures for, and the number of Medicaid
options, respectively;
b. Commence the following no later than [January 1, 2008]:
(i) implement a system of statewide long-term care service coordination and
management designed to minimize administrative costs, improve access to services, and minimize
obstacles to the delivery of long-term care services to people in need;
(ii) identify home and community based long-term care service models that
are determined by the [commissioner] to be efficient and cost-effective alternatives to nursing
home care, and develop clear and concise performance standards for those services for which
standards are not already available in a home and community-based services waiver;
(iii) develop and implement with the [Commissioner of Human Services] a
Comprehensive Consumer Assessment Instrument that is designed to facilitate an expedited
process to authorize the provision of home and community-based care to a person through fast
track eligibility prior to completion of a formal financial eligibility determination; and
(iv) develop and implement a comprehensive quality assurance system with
appropriate and regular assessments that is designed to ensure that all forms of long-term care
available to consumers in this state are financially viable, cost-effective, and promote and sustain
consumer independence; and
c. Seek to make information available to the general public on a statewide basis,
through print and electronic media, regarding the various forms of long-term care available in this
state and the rights accorded to long-term care consumers by statute and regulation, as well as
information about public and nonprofit agencies and organizations that provide informational and
advocacy services to assist long-term care consumers and their families.

Section 7. [Medicaid Long-Term Care Funding Advisory Council.]
(1) There is established the [Medicaid Long-Term Care Funding Advisory Council] within
the [Department of Health and Senior Services]. The [advisory council] shall meet at least
[quarterly each fiscal year] until such time as the [commissioner] certifies to the [Governor and the
Legislature] that funding parity has been achieved pursuant to this Act, and shall be entitled to
receive such information from the [Departments of Health and Senior Services, Human Services]
and the [Treasury] as the [advisory council] deems necessary to carry out its responsibilities under
this Act.
(2) The [advisory council] shall:
a. monitor, assess, and advise the [commissioner] about the implementation and
operation of the Medicaid long-term care expenditure reforms and other provisions of this Act;
and
b. develop recommendations for a program to recruit and train a stable workforce
of home care providers, including recommendations for changes to provider reimbursement under
Medicaid home and community-based care programs.
c. The [advisory council] shall comprise [15 members] as follows:
(1) the [commissioner], the [Commissioner of Human Services and the
State Treasurer], or their designees, as ex officio members; and
(2) [12 public members] to be appointed by the [commissioner] as follows:
[one person appointed upon the recommendation of AARP; one person upon the recommendation
of the state Association of Area Agencies on Aging, one person upon the recommendation of the
state Association of County Offices for the Disabled; one person upon the recommendation of the
Health Care Association of the state; one person upon the recommendation of the state
Association of Non-Profit Homes for the Aging; one person upon the recommendation of the state
Hospital Association; one person upon the recommendation of the (Center for State Health
Policy); one person upon the recommendation of the Elder Rights Coalition; one person upon the
recommendation of the County Welfare Directors Association; one person upon the
recommendation of the Adult Day Services Association; one person upon the recommendation of a labor union that represents home and community-based health care workers; and one person who is a representative of the home care industry].
d. The [advisory council] shall organize as soon as possible after the appointment
of its members, and shall annually select from its membership a [chairman] who shall serve until
his successor is elected and qualifies. The members shall also select a [secretary] who need not be
a member of the [advisory council].
e. The [department] shall provide such staff and administrative support to the
[advisory council] as it requires too carry out its responsibilities.

Section 8. [Waiver of Federal Requirements.] The [Commissioner of Human Services],
with the approval of the [Commissioner of Health and Senior Services], shall apply to the Federal
Centers for Medicare and Medicaid Services for any waiver of federal requirements, or for any
state plan amendments or home and community-based services waiver amendments, which may
be necessary to obtain federal financial participation for state Medicaid expenditures in order to
effectuate the purposes of this Act.

Section 9. [Tracking Expenditures.] The [commissioner], in consultation with the
[Commissioner of Human Services], shall track Medicaid long-term care expenditures necessary
to carry out the provisions of this Act.

Section 10. [Inclusion of Budget Line for Medicaid Long-Term Care Expenditures.] There
shall be included a Unique Global Budget Appropriation Line Item for Medicaid Long-Term Care
Expenditures in the [Annual Appropriations Act] for [fiscal year 2008] and each succeeding fiscal
year in order to provide flexibility to align these expenditures with services to be provided during
each fiscal year as necessary to effectuate the purposes of this Act.

Section 11. [Severability.] [Insert severability clause.]

Section 12. [Repealer.] [Insert repealer clause.]

Section 13. [Effective Date.] [Insert effective date.]