Amendment No. 1 to SB4181 Finney L
Signature of Sponsor
AMEND Senate Bill No. 4181 House
Bill No. 4144*
By inserting language as a preamble immediately
after the caption and before the enacting clause:
Whereas, in Tennessee, the current long-term
care system for persons who are elderly and/or adults with physical
disabilities is fragmented, with access to the various types of long
term care services scattered across different points of entry with no
coordination between services, making it difficult for people who need
care and their families to understand their options, make informed decisions,
and access services in a timely manner; and
Whereas, people who need long-term care
and their families have little opportunity to exercise any choice or
decision-making with respect to the types of long-term care services
they need and who will provide them; and
Whereas, the current long-term care system
is heavily dependent on the most costly services with 98 percent of
long-term care funding spent on institutional care and limited utilization
of lower cost home and community-based options even though such options
would better meet the needs and preferences of people who need care
and their families; now, therefore,
AND FURTHER AMEND by deleting all language
after the enacting clause and by substituting instead the following:
SECTION 1. Tennessee Code Annotated,
Title 71, Chapter 5, Part 14, is amended by deleting the language in
§ 71-5-1401 through § 71-5-1406 and § 71-5-1409 in their entirety,
adding the language in SECTION 2 – SECTION 18 of this Act as new,
appropriately designated sections, and renumbering remaining sections
accordingly.
SECTION 2. The title of this act is,
and may be cited as, the “Long Term Care Community Choices Act of
2008.”
SECTION 3. Guiding Principles of a Restructured Long-Term Care System
(a) The long-term care system shall recognize
that aging is not a disease, but rather a natural process that often
includes increasing needs for assistance with daily living activities.
To the maximum extent possible and appropriate, the system shall be
based on a model of care delivery which acknowledges that services delivered
in home and community-based settings are not primarily medical in nature,
but rather, support services that will provide needed assistance with
activities of daily living and that will allow persons to “age in
place” in their homes and communities.
(b) The long-term care system shall also
recognize that persons who are elderly and/or who have physical disabilities
are more likely to have chronic health care conditions and to need preventive,
acute, and chronic health care services in order to promote healthy
living and improve quality of life. The system shall be designed to
focus on the needs of the “whole person,” with coordination of care
across the continuum to ensure that medical, behavioral and non-medical
long-term care support needs are met.
(c) The long-term care system shall promote
independence, choice, dignity, and quality of life for elderly and/or
people with physical disabilities who need long-term care supports and
services and shall include consumer-directed options that offer more
choices regarding the kinds of long-term care services people need,
where they are provided, and who will deliver them, with appropriate
mechanisms to ensure accountability for taxpayer funds.
(d) The long-term care system shall be
designed to reduce fragmentation and to offer a seamless approach to
meeting people’s needs, including one-stop shopping for information,
counseling and assistance regarding long-term care programs in order
to support informed decision making, simplified eligibility processes,
and one-stop shopping for all of the different kinds of services a person
may need.
(e) The long-term care system shall recognize
and value the critical role of the family and other caregivers in meeting
the needs of the elderly and people with physical disabilities and shall
offer services such as caregiver training, adult daycare, and respite
that “wrap around” the natural support network in order to keep
it in place, thereby delaying or preventing the need for more expensive,
institutional care.
(f) The long-term care system shall deliver needed supports and services in the most
integrated setting appropriate and cost-effective
way possible in order to utilize available funding to serve as many
people as possible in home and community settings.
(g) The long-term care system shall utilize
a global budget for all long-term care services for persons who are
elderly or who have physical disabilities that allows funding to follow
the person into the most appropriate and cost-effective long-term care
setting of their choice, resulting in a more equitable balance between
the proportion of Medicaid long-term care expenditures for institutional
(i.e., Nursing Facility) services and expenditures for home and community
based services and supports.
(h) The long-term care system shall offer
a continuum of long-term care services which includes an expanded array
of home and community-based options including community-based residential
alternatives to institutional care for persons who can no longer live
alone, and which also includes nursing facility services as an integral
part of the long-term care continuum for persons with the highest levels
of need.
(i) The long-term care system shall include
a comprehensive quality approach across the entire continuum of long-term
care services and settings that promotes continuous quality improvement
and that focuses on customer perceptions of quality, with mechanisms
to ensure ongoing feedback from persons receiving care and their families
in order to immediately identify and resolve issues, and to improve
the overall quality of services and the system.
SECTION 4. Definitions As used in this act, unless the context otherwise requires:
(1) “Budget Allowance” means the
amount of money that can be directed, utilizing the services of a fiscal
intermediary, by a Medicaid-eligible long-term care member participating
in this consumer-directed care option, to pay for home and community-based
long term care services defined under the Medicaid state plan or any
federal waivers or amendments thereto that are necessary to meet the
member’s long-term care needs and to delay or prevent institutionalization.
The Budget Allowance shall be based on the results of a functional assessment
performed by a qualified entity and the availability of family and other
caregivers who can help provide needed support, and when combined with
the cost of Home Health Services and Private Duty Nursing in the home
or other community-based setting, cannot exceed the cost of institutional
care;
(2) “Commissioner” means the commissioner
of finance and administration or the commissioner’s designee;
(3) “Cost-Effective” means that the
total cost of services provided to an eligible elderly or physically
disabled adult in the home or other community-based setting does not
exceed the cost of reimbursement for institutional care in a nursing
facility. The total cost of services shall include the cost of home
health services and private duty nursing, as well as home and community
based long-term care services provided pursuant to the Medicaid state
plan or any federal waiver or amendments thereto.
(4) “Fiscal Intermediary” means an
entity with whom the commissioner or a contractor responsible for the
coordination of Medicaid primary, acute and long-term care services
has contracted to help a member participating in this consumer-directed
care option manage the member’s budget allowance. The Fiscal Intermediary
will manage all payments to providers and paid caregivers for specified
home and community-based services on behalf of the member, process employment
and tax information as applicable, review records to ensure accuracy
and provide full accountability for all expenditures made on behalf
of each participating member.
(5) “Rebalance” means reaching a
more equitable balance between the proportion of Medicaid long-term
care expenditures used for institutional (i.e., Nursing Facility) services
and those used for home and community based services and supports under
the Medicaid state plan or federal waivers or amendments thereto.
SECTION 5. Expansion of Home and Community Based Services through Implementation of a Fully Integrated Long-Term Care System
(a) The commissioner shall develop and
implement a statewide fully integrated risk based long-term care system
which integrates Medicaid-reimbursed primary, acute and long term care
services, building in strong consumer protections and aligning incentives
to ensure that the right care is delivered in the right place at the
right time. The long term care system shall rebalance the overall allocation
of funding for Medicaid-reimbursed long-term care services by expanding
access to and utilization of cost-effective home and community based
alternatives to institutional care for Medicaid-eligible individuals.
Such system may include, subject to the availability of funding in each
year’s appropriations bill, expansion of PACE (Programs of All Inclusive
Care for the Elderly) sites in additional major metropolitan areas of
the state.
(b) The commissioner shall ensure that
comprehensive, person-centered care coordination across all Medicaid
primary, acute and long-term care services is a central component of
the integrated long term care system and the contractor risk agreement.
Care coordination shall include, but not be limited to, comprehensive
individualized assessment of needs, care plan development with active
participation of the member and family or other caregivers that builds
on and does not supplant family and other informal caregiving supports,
assurance of cost-effectiveness, and coordination and monitoring of
all Medicaid primary, acute, and long-term care services to assist individuals
and family or other caregivers in providing and securing necessary care.
(c) Nothing herein may be construed to
create an entitlement to home and community based services, however,
the commissioner shall design and implement the integrated long term
care system in a manner that affords access to cost-effective home and
community based alternatives for the greatest number of Medicaid-eligible
elderly and/or physically disabled individuals possible, subject to
the availability of funding in each year’s appropriations bill.
(d) The cost of home and community-based
services provided to a Medicaid-eligible individual, which includes
the cost of home health services and/or private duty nursing to the
extent covered under the Medicaid program, shall not exceed the cost
of institutional services for that individual in a nursing facility
except as permitted under the current Medicaid state plan or any federal
waivers or amendments thereto.
SECTION 6. Single Entry Point into the Long-Term Care System
The commissioner shall ensure that there
is a single entry point into the long-term care system that is responsible
for ensuring that persons seeking care and their families have access
to readily available, easy-to understand information about long term
care options. Functions performed by the single entry point may include
counseling and assistance in evaluating long term care options, screening
and intake for long-term care programs, facilitated enrollment for Medicaid
financial eligibility and assistance with evaluation of level of care
in order to facilitate determination of medical eligibility for Medicaid
long-term care services. Activities performed by the single entry point
shall be conducted based on clear and consistent policies, processes
and timelines in order to expedite access to available long-term care
programs and services. To ensure the most seamless and efficient system
possible, Medicaid eligible persons shall not be required to go back
through the single entry point in order to access long-term care services,
but rather, shall have a single entity that is responsible for coordinating
all of the Medicaid benefits the member may need, including medical,
behavioral, nursing facility, and home and community based services.
SECTION 7. Streamlined Eligibility Determination Process for Home and Community Based Services
(a) The commissioner shall implement
policies and processes that expedite the determination of Medicaid categorical
and financial eligibility and medical eligibility for home and community
based programs and services, either through contracted functions of
the department of human services or within the bureau of Tenncare. Such
policies and processes may include, but are not limited to, presumptive
or immediate Medicaid eligibility determination, fast track eligibility
determination, development of specialized units or teams for determination
of Medicaid eligibility for HCBS, implementation of facilitated enrollment
processes, and the implementation of an on-line medical eligibility
application process.
SECTION 8. Level of Care Criteria for Nursing Facility and Home and Community Based Services
(a) The commissioner shall develop level
of care criteria for new nursing facility admissions which ensure that
the most intensive level of long-term care services is provided to persons
with the highest level of need.
(b) Nursing facility residents who meet
continued stay criteria and who remain financially eligible for Medicaid
shall continue to be eligible to receive nursing facility services or
cost effective home and community based waiver services, and shall not
be required to meet new nursing facility level of care criteria.
(c) Current enrollees in the statewide
home and community based services waiver program for persons who are
elderly and/or adults with physical disabilities who meet continued
stay criteria and remain financially eligible for Medicaid shall continue
to be eligible to receive cost-effective home and community based waiver
services and shall not be required to meet new nursing facility level
of care criteria except for admission to a nursing facility.
(d) The commissioner shall develop and
seek approval of a waiver application or amendment thereto which allows
persons who meet a lesser level of care, i.e., who do not meet new nursing
facility level of care criteria, but are “at risk” of institutional
care, to qualify for a more moderate package of Medicaid-reimbursed
home and community based waiver services up to a specified enrollment
cap.
SECTION 9. Home and Community Based Services Initiative
(a) The commissioner shall develop and
implement strategies to encourage the utilization of cost-effective
home and community based services in lieu of institutional placement.
(b) The commissioner shall specify in contractor risk agreements with integrated long term care contractors requirements related to nursing facility diversion. Such requirements may include, but are not limited to, the following:
(1) documentation prior to approval of nursing facility admission that an individual and his/her family or other caregivers have been advised of home and community based alternatives and that such alternatives are not appropriate, cost-effective, or desired;
(2) a requirement for care coordinators to work with hospital discharge
planners and to provide face-to-face visits in nursing facilities within
a minimum number of days following admission to develop a plan, as appropriate,
for transition back to a home or community-based setting.
SECTION 10. Nursing Facility-to-Community Transition Initiative
(a) The commissioner shall develop and
implement a nursing facility transition initiative.
(b) The commissioner shall specify in
contractor risk agreements with contractors responsible for coordination
of Medicaid primary, acute and long-term care services requirements
related to nursing facility-to-community transitions.
(c) Contractor requirements shall include
identifying and assessing nursing facility residents appropriate for
transition to home and community-based settings, and planning and facilitating
such transitions timely. Contractors shall be permitted to coordinate
or subcontract with local community based organizations to assist in
the identification, planning and facilitation processes, and may offer,
as a cost-effective alternative to continued institutional care, a per
person transition cost allowance not to exceed two thousand dollars
($2,000) for items such as, but not limited to, first month’s rent,
rent and/or utility deposits, kitchen appliances, furniture and basic
household items. (d) It is the legislative intent of this section to
provide more opportunities for home and community based services for
the at-risk population, subject to the availability of funding in each
year’s appropriations bill.
SECTION 11. Nursing Facility Diversification
(a) The commissioner shall develop and
implement strategies to assist nursing facilities in diversifying their
lines of business, including provision of home and community based services
and specialized nursing facility care to meet the targeted needs of
chronic care populations.
(b) Such strategies may include, but
are not limited to, provision of training and technical assistance,
streamlined provider enrollment processes for home and community based
services, and development of special acuity-based rates to meet the
more intensive caregiving demands of certain chronic care populations,
subject to the availability of funding in each year’s appropriations
bill.
SECTION 12. Expansion of Cost-Effective Community-Based Residential Alternatives to Institutional Care
(a) The commissioner shall develop and
implement a plan to expand cost-effective community-based residential
alternatives to institutional care for persons who are elderly and/or
adults with physical disabilities, which may include, but are not limited
to, the development of multiple levels of assisted care living facility
services, adult family care homes, adult foster care homes, companion
care models, and other cost-effective residential alternatives to nursing
facility care.
(b) The commissioner and the commissioner
of health shall work to develop and/or modify licensure requirements
for such facilities to support a nursing facility substitute framework
for members who want to age in place in residences that offer increasing
levels of cost-effective home and community-based care as an alternative
to institutionalization as member’s needs change.
SECTION 13. Nursing Facility Reimbursement
(a) The commissioner shall develop and
implement an acuity-based reimbursement methodology for nursing facility
services, based on an individualized assessment of need, as an alternative
to the current cost-based nursing facility reimbursement system.
(b) Such methodology may include, but
is not limited to, the development of enhanced rates for specified chronic
care services which may encourage the establishment of chronic care
units that specialize in the care of persons with specified chronic
care conditions such as persons who are ventilator-dependent.
(c) The acuity-based reimbursement methodology
for nursing facility services shall be implemented over a period not
to exceed two (2) years, pursuant to a methodology established in regulations
promulgated by the commissioner.
SECTION 14. Consumer-Directed Options
(a) The commissioner shall develop and
make available consumer-directed options for persons receiving home
and community-based long-term care services under the integrated long
term care program, which may include but are not limited to, the ability
to select, direct, and/or employ persons delivering unskilled hands-on
or support services such as personal care services, personal care assistant/attendant,
homemaker services, in-home respite, and the ability to manage, utilizing
the services of a fiscal intermediary, an individual home and community
based services budget allowance based on functional assessment performed
by a qualified entity and the availability of family and other caregivers
who can help provide needed support.
(b) Members eligible to receive home
and community-based long term care pursuant to this act may, subject
to regulations promulgated by the commissioner, be permitted to use
the budget allowance to direct payment, utilizing the services of a
fiscal intermediary, for those home and community based services that
are necessary to meet the member’s long-term care needs and to prevent
and/or delay institutionalization and which are a cost-effective use
of long term care funds. Such services shall include only those services
which are permitted under the Medicaid state plan or any federal waivers
or amendments thereto.
SECTION 15. The commissioner shall develop
and implement quality assurance and quality improvement strategies to
ensure the quality of long-term care services provided pursuant to this
act and shall specify in contractor risk agreements with contractors
responsible for coordination of Medicaid primary, acute and long-term
care services requirements related to the quality of long-term care
services provided. Such strategies may include the use of electronic
visit verification for data collection and reporting, HEDIS measures
pertaining to long term care services, and shall include mechanisms
to ensure direct feedback from members and family or other caregivers
regarding the quality of services received.
SECTION 16. Subject to the availability
of funding, the commissioner shall designate in the each year’s appropriations
bill an amount of money, that can be used to increase access to home
and community based services in the state-funded Options program for
persons who do not qualify for Medicaid long-term care services. This
funding may be used to provide services such as home-delivered meals,
homemaker services and personal care, and to reduce the waiting list
for these services under the Options program, or to offer transportation
services or assistance to non-Medicaid eligible individuals.
SECTION 17. The commissioner shall provide
Medicaid long term care services subject to the availability of funding
in each year’s appropriations bill.
SECTION 18. The commissioner is authorized
to promulgate rules and regulations to effectuate the purposes of this
act. All such rules and regulations shall be promulgated in accordance
with the provisions of the Uniform Administrative Procedures Act compiled
at Tennessee Code Annotated, Title 4, Chapter 5.
SECTION 19. Tennessee Code Annotated, Section 71-5-105(a)(3) is amended by adding the following new subdivision:
(D) Upon passage of any law authorizing
the promulgation of rules establishing an acuity-based reimbursement
methodology for nursing facility care, the per diem cost reimbursement
methodology set forth in subdivisions (B) and (C) shall be inapplicable.
SECTION 20. Tennessee Code Annotated, Section 63-7-102, is amended by adding the following language as a new subsection:
(13) (A) Family members, friends, personal
care aides and attendants who are employed by or acting at the direction
of an individual receiving Medicaid-reimbursed home and community-based
long-term care services that is competent to provide such direction,
or at the direction of a family member or other caregiver that is competent
and authorized to act on behalf of the individual receiving Medicaid-reimbursed
home and community-based long-term care services, and who are acting
within the scope and course of such employment and/or direction to perform
routine health maintenance activities in the person’s private home
(which may include other alternative community-based residential settings)
or in the community, when the person accompanies the individual to such
settings.
(B) For the purposes of subdivision (13)(A),
routine health maintenance activities are those activities which are
incidental to the personal care required and which include, but are
not limited to, oral, rectal, vaginal, optic, ophthalmic, nasal, skin,
topical, and transdermal administration of medications except as specified
below, hydration and nutrition which may include gastrostomy tube feedings,
surface care of stoma sites, and assistance with toileting which may
include irrigation of catheter and bowel maintenance so long as the
activity or procedure could be performed by the individual if the individual
were physically capable and may be safely performed in the home or community
setting. Routine health maintenance activities specifically exclude
the administration of intravenous medications, sliding scale insulin,
blood thinners, and controlled (scheduled) drugs, and any activity or
procedure that would require the exercise of clinical judgment in order
to properly perform the activity or procedure and/or to ensure the health
and safety of the individual.
(C) Persons performing such tasks shall
not represent himself or herself to the public as a licensed nurse,
a certified nurse aide, a licensed practical or professional nurse,
a registered nurse, or a registered professional nurse.
(D) This exemption shall not apply to
any person who has had his or her license as a nurse or certification
as a nurse aide suspended or revoked or his or her application for such
license or certification denied.
SECTION 21. Tennessee Code Annotated,
Section 68-11-201(4)(B), is amended by deleting the language “medical
services as prescribed” and by substituting instead the language “medical
services, including hospice services, as prescribed”.
SECTION 22. Tennessee Code Annotated,
Section 68-11-201(4)(B)(ii), is amended by deleting the language in
its entirety and by substituting instead the following language: “All
other services, such as part-time or intermittent nursing care, home
health aide, physical, occupational and speech therapy, medical social
services, medical supplies, other than drugs and biologicals, and durable
medical equipment, that a licensed home care organization is authorized
to provide to homebound persons, and hospice services may be provided
to a resident of an assisted-care living facility by appropriately licensed
or qualified staff of the assisted-care living facility, or to the extent
that the scope of services is beyond that which the assisted-care living
facility is qualified or obligated to provide, a licensed home care
organization, another appropriately licensed entity, or by the appropriate
licensed staff of a nursing home if the assisted-care living facility
is located on the same physical campus as the licensed nursing home,
in which case the assisted-care living facility shall provide the individual
with written notice that such services may be available to the individual
as a Medicare benefit through a licensed home care organization;
SECTION 23. Tennessee Code Annotated, Section 68-11-201(5), is amended by deleting the first paragraph in its entirety and by substituting instead the following language:
(5) “Assisted-care living facility
resident” means primarily an aged ambulatory person who requires domiciliary
care, and who may require one (1) or more of the services described
in subdivision (4). Such resident will be transferred to a licensed
hospital, licensed nursing home or other appropriate setting as ordered
by the resident’s treating physician when, in the opinion of the resident's
treating physician, the services available to the resident in the assisted-care
living facility no longer are adequate for the care of the resident.
This provision shall not be interpreted as limiting the authority of
the board or the department to require the transfer or discharge of
individuals to different levels of care as required by statute when
the resident’s treating physician is not willing to certify that the
resident’s needs can be safely and effectively met by care provided
in the assisted-care living facility pursuant to subdivision (4)(B)(ii);
SECTION 24. Tennessee Code Annotated,
Section 68-11-201(5)(A), is amended by deleting the colon (“:”)
at the end of the sentence and adding the language, “unless the person’s
treating physician certifies that the person’s needs can be safely
and effectively met by care provided in the assisted-care living facility
pursuant to subdivision (4)(B)(ii):”
SECTION 25. Tennessee Code Annotated,
Section 68-11-201(5)(B)(i) is amended by deleting the language in the
first paragraph in its entirety and substituting instead the language,
“So long as a person does not otherwise fall outside the definition
of an assisted care living facility resident, the person's medical condition
and overall health status are stable, the person is able to care for
such person's condition with the assistance of facility personnel or
care provided in the assisted-care living facility pursuant to subdivision
(4)(B)(ii), and the person’s treating physician certifies that the
person’s needs can be safely and effectively met in the assisted-care
living facility, then any assisted-care living facility may accept for
admission and allow the continued stay of a person who:”
SECTION 26. Tennessee Code Annotated,
Section 68-11-201(5)(B)(i)(d) is amended by deleting the language, “provided,
however, with respect to this requirement, that no such documented history
of self care for a person’s medical condition for at least one (1)
year shall be required for the continued stay of an assisted care living
facility resident”.
SECTION 27. Tennessee Code Annotated,
Section 68-11-201(5)(B)(ii) is amended by deleting the language in its
entirety and by substituting instead the language “If any resident
admitted to an assisted-care living facility under subdivision (5)(B)(i)
no longer meets the requirements listed above or is no longer able to
self care for such resident's medical condition, and the resident’s
treating physician is not willing to certify that the resident’s needs
can be safely and effectively met by care provided in the assisted-care
living facility pursuant to subdivision (4)(B)(ii), the assisted-care
living facility must transfer the resident immediately to a licensed
nursing home or hospital, or other appropriate setting as ordered by
the resident’s treating physician. Nothing in this subdivision (5)(B)
shall be construed to prevent facility staff from responding to an emergency
situation;”
SECTION 28. (8) Tennessee Code Annotated,
Section 68-11-201(5)(B) is amended by adding the following language
as a new subdivision (iii): “Notwithstanding any other provision of
this subdivision (5), any assisted-care living facility resident who
qualifies for hospice care may receive hospice care services and continue
as a resident of the assisted-care living facility so long as the resident’s
treating physician certifies that the resident’s needs can be safely
and effectively met by care provided in the assisted-care living facility
pursuant to subdivision (4)(B)(ii);”
SECTION 29. Tennessee Code Annotated,
Section 68-11-201(5)(C) is amended by deleting the language in the first
paragraph in its entirety and substituting instead the language, “An
assisted-care living facility resident with any of the conditions listed
in subdivisions (5)(C)(i)- (iii) may be retained by the facility for
a period not to exceed twenty-one (21) days without certification from
the resident’s treating physician that the resident’s needs can
be safely and effectively met by care provided in the assisted-care
living facility. A resident may continue as a resident in the facility
for an additional twenty-one-day period without certification from the
resident’s treating physician that the resident’s needs can be safely
and effectively met by care provided in the assisted-care living facility
if, within the first twenty-one (21) days, or by the first business
day thereafter if the twenty-first day is a Saturday, Sunday or holiday,
or earlier if the need for an extension becomes apparent to the facility,
the extension of the initial twenty-one day period is approved by the
commissioner of health, or the commissioner's designee, so long as the
individual approving the extension is a physician licensed in Tennessee.
The department must respond to a request for an extension of stay within
five (5) working days of its receipt of a request for extension, if:”.
SECTION 30. Tennessee Code Annotated,
Section 68-11-201(5)(D) is deleted in its entirety, and the remaining
subdivisions shall be renumbered accordingly.
SECTION 31. This act shall take effect on July 1, 2008, the public welfare requiring it.
MCIL Journal Index 2008
| Date | Name |
|---|---|
| 8/20/2008 | Stop the cuts!. |
| 5/22/2008 | Long Term Care Community Choices Act of 2008. |
| 3/18/2008 | Bredesen's Proposal for Long Term Care |
| 2/10/2008 | MCIL Comments on the Tennessee Community Choices Act |
| 1/29/2008 | Gov. Bredesen Highlights the Tennessee Community Choices Act |
| 1/24/2008 | Tennessee Community Choices Act |
| 1/21/2008 | The ADAPT Community Poster |
| 1/3/2008 | Nursing Home Trasition Drawbacks |
