LAWRENCE J. HOGAN, JR., Governor Ch. 738
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Chapter 738
(Senate Bill 28)
AN ACT concerning
Home– and Community–Based Services Waiver – Participation and Applications
FOR the purpose of altering the required contents of the home– and community–based
services waiver submitted by the Maryland Department of Health to the Centers for
Medicare and Medicaid Services; requiring the Department to send an application to
a certain number of individuals each month, if the Department maintains a waiting
list or registry for the waiver; requiring the Department to apply to the Centers for
Medicare and Medicaid Services for an amendment to the home – and
community–based services waiver; and generally relating to the home– and
community–based services waiver.
BY repealing and reenacting, with amendments,
Article – Health – General
Section 15–132
Annotated Code of Maryland
(2019 Replacement Volume and 2021 Supplement)
SECTION 1. BE IT ENACTED BY THE GENERAL ASSEMBLY OF MARYLAND,
That the Laws of Maryland read as follows:
Article – Health – General
15–132.
(a) (1) In this section the following terms have the meanings indicated.
(2) “Assisted living program” has the meaning stated in § 19–1801 of this
article.
(3) “Assisted living services” means services provided by an assisted living
program as defined in regulations adopted by the Department.
(4) “Case management services” means services that assist waiver eligible
individuals in gaining access to needed waiver services and other needed medical, social,
housing, and other supportive services.
(5) “Health related care and services” includes:
(i) 24–hour supervision and observation by a licensed care provider;
(ii) Medication administration; Ch. 738 2022 LAWS OF MARYLAND
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(iii) Inhalation therapy;
(iv) Bladder and catheter management;
(v) Assistance with suctioning; or
(vi) Assistance with treatment of skin disorders and dressings.
(6) “Home health care services” means those services defined in § 19–401
of this article and in 42 C.F.R. 440.70.
(7) “Medically and functionally impaired” means an individual who is
assessed by the Department to require services provided by a nursing facility as defined in
this section, and who, but for the receipt of these services, would require admission to a
nursing facility within 30 days.
(8) “Nursing facility” means a facility that provides skilled nursing care
and related services, rehabilitation services, and health related care and services above the
level of room and board needed on a regular basis in accordance with § 1919 of the federal
Social Security Act.
(9) “Waiver” means a home– and community–based services waiver under
§ 1915(c) of the federal Social Security Act, submitted by the Department to the Centers for
Medicare and Medicaid Services.
(10) “Waiver services” means the services covered under an approved waiver
that:
(i) Are needed and chosen by an eligible waiver participant as an
alternative to admission to or continued stay in a nursing facility;
(ii) Are part of a plan of service approved by the program;
(iii) Assure the waiver participant’s health and safety in the
community; and
(iv) Cost no more per capita to receive services in the community
than in a nursing facility.
(b) (1) If authorized by the Centers for Medicare and Medicaid Services, an
individual shall be determined medically eligible to receive services if the individual
requires:
(i) Skilled nursing care or other related services;
LAWRENCE J. HOGAN, JR., Governor Ch. 738
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(ii) Rehabilitation services; or
(iii) Health–related services above the level of room and board that
are available only through nursing facilities, including individuals who because of severe
cognitive impairments or other conditions:
1. A. Are currently unable to perform at least two
activities of daily living without hands–on assistance or standby assistance from another
individual; and
B. Have been or will be unable to perform at least two
activities of daily living for a period of at least 90 days due to a loss of functional capacity;
or
2. Need substantial supervision for protection against
threats to health and safety due to severe cognitive impairment.
(2) The Department shall adopt regulations to carry out the provisions of
this subsection.
(c) The Department’s waiver shall include the following:
(1) [An initial] A cap on waiver participation [at] OF NOT FEWER THAN
7,500 individuals;
(2) [A limit on annual waiver participation based on State General Fund
support as provided in the budget bill] A PLAN FOR WAIVER PART ICIPATION OF NOT
FEWER THAN 7,500 INDIVIDUALS;
(3) Financial eligibility criteria which include:
(i) The current federal and State medical assistance long–term care
rules for using services provided by a nursing facility, per §§ 1902, 1919, and 1924 of the
federal Social Security Act, and applicable regulations adopted by the Department;
(ii) Medically needy individuals using services provided by a nursing
facility under the current federal and State medical assistance eligibility criteria governed
by regulations adopted by the Department and § 1919 of the federal Social Security Act;
and
(iii) Categorically needy individuals with income up to 300% of the
applicable payment rate for supplemental security income;
(4) Waiver services that include at least the following:
(i) Assisted living services; Ch. 738 2022 LAWS OF MARYLAND
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(ii) Case management services;
(iii) Family training;
(iv) Dietitian and nutritionist services;
(v) Medical day care services; and
(vi) Senior center plus services;
(5) The opportunity to provide eligible individuals with waiver services
under this section as soon as they are available without waiting for placement slots to open
in the next fiscal year;
(6) An increase in participant satisfaction;
(7) The forestalling of functional decline;
(8) A reduction in Medicaid expenditures by reducing utilization of
services; and
(9) The enhancement of compliance with the decision of the United States
Supreme Court in the case of Olmstead v. L.C. (1999) by offering cost–effective
community–based services in the most appropriate setting.
(d) This section may not be construed to affect, interfere with, or interrupt any
services reimbursed through the Program under this title.
(e) (1) (I) IF THE DEPARTMENT MAINTAINS A WAITING LIST OR
REGISTRY, EACH MONTH THE DEPARTMENT SHALL SEND A WAIVER APPLICATION :
1. IF THERE ARE FEWER TH AN 600 INDIVIDUALS ON THE
WAITING LIST OR REGI STRY, TO ALL INDIVIDUALS O N THE WAITING LIST OR
REGISTRY; AND
2. IF THERE ARE 600 OR MORE INDIVIDUALS ON THE
WAITING LIST OR REGI STRY, TO AT LEAST 600 INDIVIDUALS ON THE W AITING LIST
OR REGISTRY.
(II) A WAIVER APPLICATION S ENT UNDER SUBPARAGRA PH (I)
OF THIS PARAGRAPH SH ALL STATE CLEARLY AND CONSPICU OUSLY THAT:
1. THE APPLICANT MUST SU BMIT THE APPLICATION
WITHIN 6 WEEKS AFTER RECEIVIN G THE APPLICATION ; AND LAWRENCE J. HOGAN, JR., Governor Ch. 738
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2. THE APPLICANT IS REQU IRED TO MEET ALL OF THE
ELIGIBILITY CRITERIA FOR PARTICIPATION IN THE WAIVER WITHIN 6 MONTHS
AFTER SUBMITTING THE APPLICATION.
(2) If a person determined to be eligible to receive waiver services under
this section desires to receive waiver services and an appropriate placement is available,
the Department shall authorize the placement.
(f) The Department, in consultation with representatives of the affected industry
and advocates for waiver candidates, and with the approval of the Department of Aging,
shall adopt regulations to implement this section.
SECTION 2. AND BE IT FURTHER ENACTED, That on or before October 31, 2022,
and thereafter as necessary, the Maryland Department of Health shall apply to the Centers
for Medicare and Medicaid Services for an amendment to the home– and community–based
waiver under § 1915(c) of the federal Social Security Act to increase the waiver cap size to
be consistent with Section 1 of this Act.
SECTION 2. 3. AND BE IT FURTHER ENACTED, That this Act shall take effect
October 1, 2022.
Enacted under Article II, § 17(c) of the Maryland Constitution, May 29, 2022.