42 U.S.C. § 1396u — Community supported living arrange-

Page 4363 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 1396u 1 So in original. The comma probably should precede ‘‘the term’’. election period under paragraph (2) to reason- able classifications (based on age, degree of functional disability, and need for services). (4) Allocation of medical assistance The Secretary shall establish a limitation on the amount of Federal medical assistance available to any State during the State’s elec- tion period under paragraph (2). The limita- tion under this paragraph shall take into ac- count the limitation under paragraph (1) and the number of elderly individuals age 65 or over residing in such State in relation to the number of such elderly individuals in the United States during 1990. For purposes of the previous sentence, elderly individuals shall, to the maximum extent practicable, be low-in- come elderly individuals. (Aug. 14, 1935, ch. 531, title XIX, § 1929, as added Pub. L. 101–508, title IV, § 4711(b), Nov. 5, 1990, 104 Stat. 1388–174; amended Pub. L. 106–113, div. B, § 1000(a)(6) [title VI, § 608(v)], Nov. 29, 1999, 113 Stat. 1536, 1501A–398.) Editorial Notes CODIFICATION Pub. L. 101–508, title IV, § 4711(b)(1), Nov. 5, 1990, 104 Stat. 1388–174, which directed renumbering of section 1929 of the Social Security Act, act Aug. 14, 1935, as sec- tion 1930, could not be executed because there was no section 1929. AMENDMENTS 1999—Subsec. (c)(2)(E)(i), (ii). Pub. L. 106–113, § 1000(a)(6) [title VI, § 608(v)(1)], realigned margins. Subsec. (k)(1)(A)(i). Pub. L. 106–113, § 1000(a)(6) [title VI, § 608(v)(2)], substituted ‘‘large community care set- tings),’’ for ‘‘large community care settings,’’. Subsec. (l). Pub. L. 106–113, § 1000(a)(6) [title VI, § 608(v)(3)], substituted ‘‘Statewideness’’ for ‘‘State wideness’’. Statutory Notes and Related Subsidiaries EFFECTIVE DATE Section applicable to home and community care fur- nished on or after July 1, 1991, without regard to wheth- er or not final regulations to carry out the amend- ments made by section 4711 of Pub. L. 101–508 have been promulgated by such date, see section 4711(e) of Pub. L. 101–508, set out as an Effective Date of 1990 Amendment note under section 1396a of this title. § 1396u. Community supported living arrange- ments services (a) Community supported living arrangements services In this subchapter, the term ‘‘community sup- ported living arrangements services’’ means one or more of the following services meeting the re- quirements of subsection (h) provided in a State eligible to provide services under this section (as defined in subsection (d)) to assist a develop- mentally disabled individual (as defined in sub- section (b)) in activities of daily living nec- essary to permit such individual to live in the individual’s own home, apartment, family home, or rental unit furnished in a community sup- ported living arrangement setting: (1) Personal assistance. (2) Training and habilitation services (nec- essary to assist the individual in achieving in- creased integration, independence and produc- tivity). (3) 24-hour emergency assistance (as defined by the Secretary). (4) Assistive technology. (5) Adaptive equipment. (6) Other services (as approved by the Sec- retary, except those services described in sub- section (g)). (7) Support services necessary to aid an indi- vidual to participate in community activities. (b) ‘‘Developmentally disabled individual’’ de- fined In this subchapter the term,1 ‘‘develop- mentally disabled individual’’ means an indi- vidual who as defined by the Secretary is de- scribed within the term ‘‘mental retardation and related conditions’’ as defined in regulations as in effect on July 1, 1990, and who is residing with the individual’s family or legal guardian in such individual’s own home in which no more than 3 other recipients of services under this section are residing and without regard to whether or not such individual is at risk of in- stitutionalization (as defined by the Secretary). (c) Criteria for selection of participating States The Secretary shall develop criteria to review the applications of States submitted under this section to provide community supported living arrangement services. The Secretary shall pro- vide in such criteria that during the first 5 years of the provision of services under this section that no less than 2 and no more than 8 States shall be allowed to receive Federal financial par- ticipation for providing the services described in this section. (d) Quality assurance A State selected by the Secretary to provide services under this section shall in order to con- tinue to receive Federal financial participation for providing services under this section be re- quired to establish and maintain a quality as- surance program, that provides that— (1) the State will certify and survey pro- viders of services under this section (such sur- veys to be unannounced and average at least 1 a year); (2) the State will adopt standards for survey and certification that include— (A) minimum qualifications and training requirements for provider staff; (B) financial operating standards; and (C) a consumer grievance process; (3) the State will provide a system that al- lows for monitoring boards consisting of pro- viders, family members, consumers, and neigh- bors; (4) the State will establish reporting proce- dures to make available information to the public; (5) the State will provide ongoing moni- toring of the health and well-being of each re- cipient; (6) the State will provide the services de- fined in subsection (a) in accordance with an individual support plan (as defined by the Sec- retary in regulations); and Page 4364 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 1396u (7) the State plan amendment under this sec- tion shall be reviewed by the State Council on Developmental Disabilities established under section 125 of the Developmental Disabilities Assistance and Bill of Rights Act of 2000 [42 U.S.C. § 15025] and the protection and advocacy system established under subtitle C of that Act [42 U.S.C. 15041 et seq.]. The Secretary shall not approve a quality assur- ance plan under this subsection and allow a State to continue to receive Federal financial participation under this section unless the State provides for public hearings on the plan prior to adoption and implementation of its plan under this subsection. (e) Maintenance of effort States selected by the Secretary to receive Federal financial participation to provide serv- ices under this section shall maintain current levels of spending for such services in order to be eligible to continue to receive Federal finan- cial participation for the provision of such serv- ices under this section. (f) Excluded services No Federal financial participation shall be al- lowed for the provision of the following services under this section: (1) Room and board. (2) Cost of prevocational, vocational and supported employment. (g) Waiver of requirements The Secretary may waive such provisions of this subchapter as necessary to carry out the provisions of this section including the fol- lowing requirements of this subchapter— (1) comparability of amount, duration, and scope of services; and (2) statewideness. (h) Minimum protections (1) Publication of interim and final require- ments (A) In general The Secretary shall publish, by July 1, 1991, a regulation (that shall be effective on an interim basis pending the promulgation of final regulations), and by October 1, 1992, a final regulation, that sets forth interim and final requirements, respectively, con- sistent with subparagraph (B), to protect the health, safety, and welfare of individuals re- ceiving community supported living ar- rangements services. (B) Minimum protections Interim and final requirements under sub- paragraph (A) shall assure, through methods other than reliance on State licensure proc- esses or the State quality assurance pro- grams under subsection (d), that— (i) individuals receiving community sup- ported living arrangements services are protected from neglect, physical and sex- ual abuse, and financial exploitation; (ii) a provider of community supported living arrangements services may not use individuals who have been convicted of child or client abuse, neglect, or mistreat- ment or of a felony involving physical harm to an individual and shall take all reasonable steps to determine whether ap- plicants for employment by the provider have histories indicating involvement in child or client abuse, neglect, or mistreat- ment or a criminal record involving phys- ical harm to an individual; (iii) individuals or entities delivering such services are not unjustly enriched as a result of abusive financial arrangements (such as owner lease-backs); and (iv) individuals or entities delivering such services to clients, or relatives of such individuals, are prohibited from being named beneficiaries of life insurance poli- cies purchased by (or on behalf of) such cli- ents. (2) Specified remedies If the Secretary finds that a provider has not met an applicable requirement under sub- section (h), the Secretary shall impose a civil money penalty in an amount not to exceed $10,000 for each day of noncompliance. The provisions of section 1320a–7a of this title (other than subsections (a) and (b)) shall apply to a civil money penalty under the previous sentence in the same manner as such provi- sions apply to a penalty or proceeding under section 1320a–7a(a) of this title. (i) Treatment of funds Any funds expended under this section for medical assistance shall be in addition to funds expended for any existing services covered under the State plan, including any waiver services for which an individual receiving services under this program is already eligible. (j) Limitation on amounts of expenditures as medical assistance The amount of funds that may be expended as medical assistance to carry out the purposes of this section shall be for fiscal year 1991, $5,000,000, for fiscal year 1992, $10,000,000, for fis- cal year 1993, $20,000,000, for fiscal year 1994, $30,000,000, for fiscal year 1995, $35,000,000, and for fiscal years thereafter such sums as provided by Congress. (Aug. 14, 1935, ch. 531, title XIX, § 1930, as added Pub. L. 101–508, title IV, § 4712(b), Nov. 5, 1990, 104 Stat. 1388–187; amended Pub. L. 106–402, title IV, § 401(b)(6)(B), Oct. 30, 2000, 114 Stat. 1738.) Editorial Notes REFERENCES IN TEXT The Developmental Disabilities Assistance and Bill of Rights Act of 2000, referred to in subsec. (d)(7), is Pub. L. 106–402, Oct. 30, 2000, 114 Stat. 1677. Subtitle C of the Act probably means subtitle C of title I of the Act, which is classified generally to part C (§ 15041 et seq.) of subchapter I of chapter 144 of this title. For complete classification of this Act to the Code, see Short Title note set out under section 15001 of this title and Tables. CODIFICATION Pub. L. 101–508, title IV, § 4712(b)(1), Nov. 5, 1990, 104 Stat. 1388–187, which directed renumbering of section 1930 of the Social Security Act, act Aug. 14, 1935, as sec- tion 1931, could not be executed because there was no section 1930. Page 4365 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 1396u–1 AMENDMENTS 2000—Subsec. (d)(7). Pub. L. 106–402 substituted ‘‘State Council on Developmental Disabilities established under section 125 of the Developmental Disabilities As- sistance and Bill of Rights Act of 2000 and the protec- tion and advocacy system established under subtitle C of that Act’’ for ‘‘State Planning Council established under section 6024 of this title, and the Protection and Advocacy System established under section 6042 of this title’’. Statutory Notes and Related Subsidiaries EFFECTIVE DATE Pub. L. 101–508, title IV, § 4712(c), Nov. 5, 1990, 104 Stat. 1388–190, provided that: ‘‘(1) IN GENERAL.—The amendments made by this sec- tion [enacting this section and amending section 1396d of this title] shall apply to community supported living arrangements services furnished on or after the later of July 1, 1991, or 30 days after the publication of regula- tions setting forth interim requirements under sub- section (h) [probably means 42 U.S.C. 1396u(h)] without regard to whether or not final regulations to carry out such amendments have been promulgated by such date. ‘‘(2) APPLICATION PROCESS.—The Secretary of Health and Human Services shall provide that the applications required to be submitted by States under this section shall be received and approved prior to the effective date specified in paragraph (1).’’ § 1396u–1. Assuring coverage for certain low-in- come families (a) References to subchapter IV–A are references to pre-welfare-reform provisions Subject to the succeeding provisions of this section, with respect to a State any reference in this subchapter (or any other provision of law in relation to the operation of this subchapter) to a provision of part A of subchapter IV, or a State plan under such part (or a provision of such a plan), including income and resource standards and income and resource methodolo- gies under such part or plan, shall be considered a reference to such a provision or plan as in ef- fect as of July 16, 1996, with respect to the State. (b) Application of pre-welfare-reform eligibility criteria (1) In general For purposes of this subchapter, subject to paragraphs (2) and (3), in determining eligi- bility for medical assistance— (A) an individual shall be treated as re- ceiving aid or assistance under a State plan approved under part A of subchapter IV only if the individual meets— (i) the income and resource standards for determining eligibility under such plan, and (ii) the eligibility requirements of such plan under subsections (a) through (c) of section 606 of this title and section 607(a) of this title, as in effect as of July 16, 1996; and (B) the income and resource methodologies under such plan as of such date shall be used in the determination of whether any indi- vidual meets income and resource standards under such plan. (2) State option For purposes of applying this section, a State— (A) may lower its income standards appli- cable with respect to part A of subchapter IV, but not below the income standards ap- plicable under its State plan under such part on May 1, 1988; (B) may increase income or resource standards under the State plan referred to in paragraph (1) over a period (beginning after July 16, 1996) by a percentage that does not exceed the percentage increase in the Con- sumer Price Index for all urban consumers (all items; United States city average) over such period; and (C) may use income and resource meth- odologies that are less restrictive than the methodologies used under the State plan under such part as of July 16, 1996. (3) Option to terminate medical assistance for failure to meet work requirement (A) Individuals receiving cash assistance under TANF In the case of an individual who— (i) is receiving cash assistance under a State program funded under part A of sub- chapter IV, (ii) is eligible for medical assistance under this subchapter on a basis not re- lated to section 1396a(l) of this title, and (iii) has the cash assistance under such program terminated pursuant to section 607(e)(1)(B) of this title (as in effect on or after the welfare reform effective date) be- cause of refusing to work, the State may terminate such individual’s eligibility for medical assistance under this subchapter until such time as there no longer is a basis for the termination of such cash assistance because of such refusal. (B) Exception for children Subparagraph (A) shall not be construed as permitting a State to terminate medical as- sistance for a minor child who is not the head of a household receiving assistance under a State program funded under part A of subchapter IV. (c) Treatment for purposes of transitional cov- erage provisions (1) Transition in the case of child support col- lections The provisions of section 606(h) of this title (as in effect on July 16, 1996) shall apply, in re- lation to this subchapter, with respect to indi- viduals (and families composed of individuals) who are described in subsection (b)(1)(A), in the same manner as they applied before such date with respect to individuals who became ineligible for aid to families with dependent children as a result (wholly or partly) of the collection of child or spousal support under part D of subchapter IV. (2) Transition in the case of earnings from em- ployment For continued medical assistance in the case of individuals (and families composed of indi- viduals) described in subsection (b)(1)(A) who would otherwise become ineligible because of hours or income from employment, see sec- tions 1396r–6 and 1396a(e)(1) of this title.