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| 4 | 4 | | |
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| 5 | 5 | | 2023 -- H 5314 |
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| 7 | 7 | | LC000632 |
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| 8 | 8 | | ======== |
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| 9 | 9 | | S TATE OF RHODE IS LAND |
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| 10 | 10 | | IN GENERAL ASSEMBLY |
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| 11 | 11 | | JANUARY SESSION, A.D. 2023 |
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| 12 | 12 | | ____________ |
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| 13 | 13 | | |
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| 14 | 14 | | A N A C T |
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| 15 | 15 | | RELATING TO HUMAN SE RVICES -- MEDICAL ASSISTANCE -- LONG-TERM CARE |
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| 16 | 16 | | SERVICE AND FINANCE REFORM |
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| 17 | 17 | | Introduced By: Representatives Serpa, and Ackerman |
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| 18 | 18 | | Date Introduced: February 01, 2023 |
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| 19 | 19 | | Referred To: House Finance |
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| 20 | 20 | | |
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| 21 | 21 | | |
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| 22 | 22 | | It is enacted by the General Assembly as follows: |
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| 23 | 23 | | SECTION 1. Section 40-8.9-9 of the General Laws in Chapter 40-8.9 entitled "Medical 1 |
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| 24 | 24 | | Assistance — Long-Term Care Service and Finance Reform" is hereby amended to read as follows: 2 |
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| 25 | 25 | | 40-8.9-9. Long-term-care rebalancing system reform goal. 3 |
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| 26 | 26 | | (a) Notwithstanding any other provision of state law, the executive office of health and 4 |
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| 27 | 27 | | human services is authorized and directed to apply for, and obtain, any necessary waiver(s), waiver 5 |
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| 28 | 28 | | amendment(s), and/or state-plan amendments from the Secretary of the United States Department 6 |
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| 29 | 29 | | of Health and Human Services, and to promulgate rules necessary to adopt an affirmative plan of 7 |
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| 30 | 30 | | program design and implementation that addresses the goal of allocating a minimum of fifty percent 8 |
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| 31 | 31 | | (50%) of Medicaid long-term-care funding for persons aged sixty-five (65) and over and adults 9 |
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| 32 | 32 | | with disabilities, in addition to services for persons with developmental disabilities, to home- and 10 |
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| 33 | 33 | | community-based care; provided, further, the executive office shall report annually as part of its 11 |
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| 34 | 34 | | budget submission, the percentage distribution between institutional care and home- and 12 |
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| 35 | 35 | | community-based care by population and shall report current and projected waiting lists for long-13 |
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| 36 | 36 | | term-care and home- and community-based care services. The executive office is further authorized 14 |
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| 37 | 37 | | and directed to prioritize investments in home- and community-based care and to maintain the 15 |
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| 38 | 38 | | integrity and financial viability of all current long-term-care services while pursuing this goal. 16 |
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| 39 | 39 | | (b) The reformed long-term-care system rebalancing goal is person-centered and 17 |
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| 40 | 40 | | encourages individual self-determination, family involvement, interagency collaboration, and 18 |
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| 41 | 41 | | |
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| 42 | 42 | | |
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| 43 | 43 | | LC000632 - Page 2 of 8 |
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| 44 | 44 | | individual choice through the provision of highly specialized and individually tailored home-based 1 |
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| 45 | 45 | | services. Additionally, individuals with severe behavioral, physical, or developmental disabilities 2 |
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| 46 | 46 | | must have the opportunity to live safe and healthful lives through access to a wide range of 3 |
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| 47 | 47 | | supportive services in an array of community-based settings, regardless of the complexity of their 4 |
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| 48 | 48 | | medical condition, the severity of their disability, or the challenges of their behavior. Delivery of 5 |
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| 49 | 49 | | services and supports in less-costly and less-restrictive community settings will enable children, 6 |
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| 50 | 50 | | adolescents, and adults to be able to curtail, delay, or avoid lengthy stays in long-term-care 7 |
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| 51 | 51 | | institutions, such as behavioral health residential-treatment facilities, long-term-care hospitals, 8 |
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| 52 | 52 | | intermediate-care facilities, and/or skilled nursing facilities. 9 |
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| 53 | 53 | | (c) Pursuant to federal authority procured under § 42-7.2-16, the executive office of health 10 |
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| 54 | 54 | | and human services is directed and authorized to adopt a tiered set of criteria to be used to determine 11 |
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| 55 | 55 | | eligibility for services. The criteria shall be developed in collaboration with the state’s health and 12 |
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| 56 | 56 | | human services departments and, to the extent feasible, any consumer group, advisory board, or 13 |
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| 57 | 57 | | other entity designated for these purposes, and shall encompass eligibility determinations for long-14 |
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| 58 | 58 | | term-care services in nursing facilities, hospitals, and intermediate-care facilities for persons with 15 |
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| 59 | 59 | | intellectual disabilities, as well as home- and community-based alternatives, and shall provide a 16 |
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| 60 | 60 | | common standard of income eligibility for both institutional and home- and community-based care. 17 |
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| 61 | 61 | | The executive office is authorized to adopt clinical and/or functional criteria for admission to a 18 |
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| 62 | 62 | | nursing facility, hospital, or intermediate-care facility for persons with intellectual disabilities that 19 |
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| 63 | 63 | | are more stringent than those employed for access to home- and community-based services. The 20 |
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| 64 | 64 | | executive office is also authorized to promulgate rules that define the frequency of re-assessments 21 |
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| 65 | 65 | | for services provided for under this section. Levels of care may be applied in accordance with the 22 |
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| 66 | 66 | | following: 23 |
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| 67 | 67 | | (1) The executive office shall continue to apply the level-of-care criteria in effect on June 24 |
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| 68 | 68 | | 30, 2015, for any recipient determined eligible for and receiving Medicaid-funded long-term 25 |
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| 69 | 69 | | services and supports in a nursing facility, hospital, or intermediate-care facility for persons with 26 |
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| 70 | 70 | | intellectual disabilities on or before that date, unless: 27 |
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| 71 | 71 | | (i) The recipient transitions to home- and community-based services because he or she 28 |
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| 72 | 72 | | would no longer meet the level-of-care criteria in effect on June 30, 2015; or 29 |
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| 73 | 73 | | (ii) The recipient chooses home- and community-based services over the nursing facility, 30 |
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| 74 | 74 | | hospital, or intermediate-care facility for persons with intellectual disabilities. For the purposes of 31 |
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| 75 | 75 | | this section, a failed community placement, as defined in regulations promulgated by the executive 32 |
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| 76 | 76 | | office, shall be considered a condition of clinical eligibility for the highest level of care. The 33 |
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| 77 | 77 | | executive office shall confer with the long-term-care ombudsperson with respect to the 34 |
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| 78 | 78 | | |
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| 79 | 79 | | |
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| 80 | 80 | | LC000632 - Page 3 of 8 |
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| 81 | 81 | | determination of a failed placement under the ombudsperson’s jurisdiction. Should any Medicaid 1 |
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| 82 | 82 | | recipient eligible for a nursing facility, hospital, or intermediate-care facility for persons with 2 |
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| 83 | 83 | | intellectual disabilities as of June 30, 2015, receive a determination of a failed community 3 |
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| 84 | 84 | | placement, the recipient shall have access to the highest level of care; furthermore, a recipient who 4 |
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| 85 | 85 | | has experienced a failed community placement shall be transitioned back into his or her former 5 |
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| 86 | 86 | | nursing home, hospital, or intermediate-care facility for persons with intellectual disabilities 6 |
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| 87 | 87 | | whenever possible. Additionally, residents shall only be moved from a nursing home, hospital, or 7 |
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| 88 | 88 | | intermediate-care facility for persons with intellectual disabilities in a manner consistent with 8 |
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| 89 | 89 | | applicable state and federal laws. 9 |
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| 90 | 90 | | (2) Any Medicaid recipient eligible for the highest level of care who voluntarily leaves a 10 |
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| 91 | 91 | | nursing home, hospital, or intermediate-care facility for persons with intellectual disabilities shall 11 |
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| 92 | 92 | | not be subject to any wait list for home- and community-based services. 12 |
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| 93 | 93 | | (3) No nursing home, hospital, or intermediate-care facility for persons with intellectual 13 |
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| 94 | 94 | | disabilities shall be denied payment for services rendered to a Medicaid recipient on the grounds 14 |
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| 95 | 95 | | that the recipient does not meet level-of-care criteria unless and until the executive office has: 15 |
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| 96 | 96 | | (i) Performed an individual assessment of the recipient at issue and provided written notice 16 |
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| 97 | 97 | | to the nursing home, hospital, or intermediate-care facility for persons with intellectual disabilities 17 |
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| 98 | 98 | | that the recipient does not meet level-of-care criteria; and 18 |
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| 99 | 99 | | (ii) The recipient has either appealed that level-of-care determination and been 19 |
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| 100 | 100 | | unsuccessful, or any appeal period available to the recipient regarding that level-of-care 20 |
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| 101 | 101 | | determination has expired. 21 |
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| 102 | 102 | | (d) The executive office is further authorized to consolidate all home- and community-22 |
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| 103 | 103 | | based services currently provided pursuant to 42 U.S.C. § 1396n into a single system of home- and 23 |
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| 104 | 104 | | community-based services that include options for consumer direction and shared living. The 24 |
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| 105 | 105 | | resulting single home- and community-based services system shall replace and supersede all 42 25 |
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| 106 | 106 | | U.S.C. § 1396n programs when fully implemented. Notwithstanding the foregoing, the resulting 26 |
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| 107 | 107 | | single program home- and community-based services system shall include the continued funding 27 |
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| 108 | 108 | | of assisted-living services at any assisted-living facility financed by the Rhode Island housing and 28 |
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| 109 | 109 | | mortgage finance corporation prior to January 1, 2006, and shall be in accordance with chapter 66.8 29 |
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| 110 | 110 | | of title 42 as long as assisted-living services are a covered Medicaid benefit. 30 |
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| 111 | 111 | | (e) The executive office is authorized to promulgate rules that permit certain optional 31 |
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| 112 | 112 | | services including, but not limited to, homemaker services, home modifications, respite, and 32 |
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| 113 | 113 | | physical therapy evaluations to be offered to persons at risk for Medicaid-funded long-term care 33 |
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| 114 | 114 | | subject to availability of state-appropriated funding for these purposes. 34 |
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| 115 | 115 | | |
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| 116 | 116 | | |
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| 117 | 117 | | LC000632 - Page 4 of 8 |
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| 118 | 118 | | (f) To promote the expansion of home- and community-based service capacity, the 1 |
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| 119 | 119 | | executive office is authorized to pursue payment methodology reforms that increase access to 2 |
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| 120 | 120 | | homemaker, personal care (home health aide), assisted living, adult supportive-care homes, and 3 |
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| 121 | 121 | | adult day services, as follows: 4 |
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| 122 | 122 | | (1) Development of revised or new Medicaid certification standards that increase access to 5 |
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| 123 | 123 | | service specialization and scheduling accommodations by using payment strategies designed to 6 |
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| 124 | 124 | | achieve specific quality and health outcomes. 7 |
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| 125 | 125 | | (2) Development of Medicaid certification standards for state-authorized providers of adult 8 |
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| 126 | 126 | | day services, excluding providers of services authorized under § 40.1-24-1(3), assisted living, and 9 |
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| 127 | 127 | | adult supportive care (as defined under chapter 17.24 of title 23) that establish for each, an acuity-10 |
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| 128 | 128 | | based, tiered service and payment methodology tied to: licensure authority; level of beneficiary 11 |
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| 129 | 129 | | needs; the scope of services and supports provided; and specific quality and outcome measures. 12 |
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| 130 | 130 | | The standards for adult day services for persons eligible for Medicaid-funded long-term 13 |
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| 131 | 131 | | services may differ from those who do not meet the clinical/functional criteria set forth in § 40-14 |
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| 132 | 132 | | 8.10-3. 15 |
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| 133 | 133 | | (3) As the state’s Medicaid program seeks to assist more beneficiaries requiring long-term 16 |
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| 134 | 134 | | services and supports in home- and community-based settings, the demand for home-care workers 17 |
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| 135 | 135 | | has increased, and wages for these workers has not kept pace with neighboring states, leading to 18 |
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| 136 | 136 | | high turnover and vacancy rates in the state’s home-care industry, the executive office shall institute 19 |
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| 137 | 137 | | a one-time increase in the base-payment rates for FY 2019, as described below, for home-care 20 |
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| 138 | 138 | | service providers to promote increased access to and an adequate supply of highly trained home-21 |
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| 139 | 139 | | healthcare professionals, in amount to be determined by the appropriations process, for the purpose 22 |
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| 140 | 140 | | of raising wages for personal care attendants and home health aides to be implemented by such 23 |
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| 141 | 141 | | providers. 24 |
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| 142 | 142 | | (i) A prospective base adjustment, effective not later than July 1, 2018, of ten percent (10%) 25 |
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| 143 | 143 | | of the current base rate for home-care providers, home nursing care providers, and hospice 26 |
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| 144 | 144 | | providers contracted with the executive office of health and human services and its subordinate 27 |
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| 145 | 145 | | agencies to deliver Medicaid fee-for-service personal care attendant services. 28 |
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| 146 | 146 | | (ii) A prospective base adjustment, effective not later than July 1, 2018, of twenty percent 29 |
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| 147 | 147 | | (20%) of the current base rate for home-care providers, home nursing care providers, and hospice 30 |
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| 148 | 148 | | providers contracted with the executive office of health and human services and its subordinate 31 |
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| 149 | 149 | | agencies to deliver Medicaid fee-for-service skilled nursing and therapeutic services and hospice 32 |
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| 150 | 150 | | care. 33 |
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| 151 | 151 | | (iii) Effective upon passage of this section, hospice provider reimbursement, exclusively 34 |
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| 152 | 152 | | |
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| 153 | 153 | | |
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| 154 | 154 | | LC000632 - Page 5 of 8 |
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| 155 | 155 | | for room and board expenses for individuals residing in a skilled nursing facility, shall revert to the 1 |
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| 156 | 156 | | rate methodology in effect on June 30, 2018, and these room and board expenses shall be exempted 2 |
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| 157 | 157 | | from any and all annual rate increases to hospice providers as provided for in this section. 3 |
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| 158 | 158 | | (iv) On the first of July in each year, beginning on July 1, 2019, the executive office of 4 |
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| 159 | 159 | | health and human services will initiate an annual inflation increase to the base rate for home-care 5 |
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| 160 | 160 | | providers, home nursing care providers, and hospice providers contracted with the executive office 6 |
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| 161 | 161 | | and its subordinate agencies to deliver Medicaid fee-for-service personal care attendant services, 7 |
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| 162 | 162 | | skilled nursing and therapeutic services and hospice care. The base rate increase shall be a 8 |
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| 163 | 163 | | percentage amount equal to the New England Consumer Price Index card as determined by the 9 |
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| 164 | 164 | | United States Department of Labor for medical care and for compliance with all federal and state 10 |
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| 165 | 165 | | laws, regulations, and rules, and all national accreditation program requirements. All Medicaid 11 |
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| 166 | 166 | | programs operated by the executive office of health and human services, its subordinate agencies 12 |
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| 167 | 167 | | and contractors shall not reimburse home care providers, home nursing care providers and hospice 13 |
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| 168 | 168 | | providers less than fee-for-service rates. 14 |
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| 169 | 169 | | (g) As the state’s Medicaid program seeks to assist more beneficiaries requiring long-term 15 |
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| 170 | 170 | | services and supports in home- and community-based settings, the demand for home-care workers 16 |
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| 171 | 171 | | has increased, and wages for these workers has not kept pace with neighboring states, leading to 17 |
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| 172 | 172 | | high turnover and vacancy rates in the state’s home-care industry. To promote increased access to 18 |
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| 173 | 173 | | and an adequate supply of direct-care workers, the executive office shall institute a payment 19 |
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| 174 | 174 | | methodology change, in Medicaid fee-for-service and managed care, for FY 2022, that shall be 20 |
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| 175 | 175 | | passed through directly to the direct-care workers’ wages who are employed by home nursing care 21 |
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| 176 | 176 | | and home-care providers licensed by the Rhode Island department of health, as described below: 22 |
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| 177 | 177 | | (1) Effective July 1, 2021, increase the existing shift differential modifier by $0.19 per 23 |
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| 178 | 178 | | fifteen (15) minutes for personal care and combined personal care/homemaker. 24 |
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| 179 | 179 | | (i) Employers must pass on one hundred percent (100%) of the shift differential modifier 25 |
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| 180 | 180 | | increase per fifteen-minute (15) unit of service to the CNAs who rendered such services. This 26 |
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| 181 | 181 | | compensation shall be provided in addition to the rate of compensation that the employee was 27 |
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| 182 | 182 | | receiving as of June 30, 2021. For an employee hired after June 30, 2021, the agency shall use not 28 |
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| 183 | 183 | | less than the lowest compensation paid to an employee of similar functions and duties as of June 29 |
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| 184 | 184 | | 30, 2021, as the base compensation to which the increase is applied. 30 |
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| 185 | 185 | | (ii) Employers must provide to EOHHS an annual compliance statement showing wages 31 |
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| 186 | 186 | | as of June 30, 2021, amounts received from the increases outlined herein, and compliance with this 32 |
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| 187 | 187 | | section by July 1, 2022. EOHHS may adopt any additional necessary regulations and processes to 33 |
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| 188 | 188 | | oversee this subsection. 34 |
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| 189 | 189 | | |
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| 190 | 190 | | |
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| 191 | 191 | | LC000632 - Page 6 of 8 |
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| 192 | 192 | | (2) Effective January 1, 2022, establish a new behavioral healthcare enhancement of $0.39 1 |
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| 193 | 193 | | per fifteen (15) minutes for personal care, combined personal care/homemaker, and homemaker 2 |
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| 194 | 194 | | only for providers who have at least thirty percent (30%) of their direct-care workers (which 3 |
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| 195 | 195 | | includes certified nursing assistants (CNA) and homemakers) certified in behavioral healthcare 4 |
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| 196 | 196 | | training. 5 |
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| 197 | 197 | | (i) Employers must pass on one hundred percent (100%) of the behavioral healthcare 6 |
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| 198 | 198 | | enhancement per fifteen (15) minute unit of service rendered by only those CNAs and homemakers 7 |
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| 199 | 199 | | who have completed the thirty (30) hour behavioral health certificate training program offered by 8 |
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| 200 | 200 | | Rhode Island College, Rhode Island Partnership for Home Care or a training program that is 9 |
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| 201 | 201 | | prospectively determined to be compliant per EOHHS, to those CNAs and homemakers. This 10 |
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| 202 | 202 | | compensation shall be provided in addition to the rate of compensation that the employee was 11 |
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| 203 | 203 | | receiving as of December 31, 2021. For an employee hired after December 31, 2021, the agency 12 |
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| 204 | 204 | | shall use not less than the lowest compensation paid to an employee of similar functions and duties 13 |
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| 205 | 205 | | as of December 31, 2021, as the base compensation to which the increase is applied. 14 |
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| 206 | 206 | | (ii) By January 1, 2023, employers must provide to EOHHS an annual compliance 15 |
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| 207 | 207 | | statement showing wages as of December 31, 2021, amounts received from the increases outlined 16 |
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| 208 | 208 | | herein, and compliance with this section, including which behavioral healthcare training programs 17 |
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| 209 | 209 | | were utilized. EOHHS may adopt any additional necessary regulations and processes to oversee 18 |
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| 210 | 210 | | this subsection. 19 |
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| 211 | 211 | | (h) The executive office shall implement a long-term-care-options counseling program to 20 |
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| 212 | 212 | | provide individuals, or their representatives, or both, with long-term-care consultations that shall 21 |
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| 213 | 213 | | include, at a minimum, information about: long-term-care options, sources, and methods of both 22 |
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| 214 | 214 | | public and private payment for long-term-care services and an assessment of an individua l’s 23 |
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| 215 | 215 | | functional capabilities and opportunities for maximizing independence. Each individual admitted 24 |
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| 216 | 216 | | to, or seeking admission to, a long-term-care facility, regardless of the payment source, shall be 25 |
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| 217 | 217 | | informed by the facility of the availability of the long-term-care-options counseling program and 26 |
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| 218 | 218 | | shall be provided with long-term-care-options consultation if they so request. Each individual who 27 |
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| 219 | 219 | | applies for Medicaid long-term-care services shall be provided with a long-term-care consultation. 28 |
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| 220 | 220 | | (i) The executive office is also authorized, subject to availability of appropriation of 29 |
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| 221 | 221 | | funding, and federal, Medicaid-matching funds, to pay for certain services and supports necessary 30 |
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| 222 | 222 | | to transition or divert beneficiaries from institutional or restrictive settings and optimize their health 31 |
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| 223 | 223 | | and safety when receiving care in a home or the community. The secretary is authorized to obtain 32 |
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| 224 | 224 | | any state plan or waiver authorities required to maximize the federal funds available to support 33 |
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| 225 | 225 | | expanded access to home- and community-transition and stabilization services; provided, however, 34 |
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| 226 | 226 | | |
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| 227 | 227 | | |
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| 228 | 228 | | LC000632 - Page 7 of 8 |
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| 229 | 229 | | payments shall not exceed an annual or per-person amount. 1 |
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| 230 | 230 | | (j) To ensure persons with long-term-care needs who remain living at home have adequate 2 |
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| 231 | 231 | | resources to deal with housing maintenance and unanticipated housing-related costs, the secretary 3 |
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| 232 | 232 | | is authorized to develop higher resource eligibility limits for persons or obtain any state plan or 4 |
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| 233 | 233 | | waiver authorities necessary to change the financial eligibility criteria for long-term services and 5 |
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| 234 | 234 | | supports to enable beneficiaries receiving home and community waiver services to have the 6 |
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| 235 | 235 | | resources to continue living in their own homes or rental units or other home-based settings. 7 |
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| 236 | 236 | | (k) The executive office shall implement, no later than January 1, 2016, the following 8 |
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| 237 | 237 | | home- and community-based service and payment reforms: 9 |
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| 238 | 238 | | (1) [Deleted by P.L. 2021, ch. 162, art. 12, § 6.] 10 |
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| 239 | 239 | | (2) Adult day services level of need criteria and acuity-based, tiered-payment 11 |
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| 240 | 240 | | methodology; and 12 |
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| 241 | 241 | | (3) Payment reforms that encourage home- and community-based providers to provide the 13 |
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| 242 | 242 | | specialized services and accommodations beneficiaries need to avoid or delay institutional care. 14 |
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| 243 | 243 | | (l) The secretary is authorized to seek any Medicaid section 1115 waiver or state-plan 15 |
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| 244 | 244 | | amendments and take any administrative actions necessary to ensure timely adoption of any new 16 |
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| 245 | 245 | | or amended rules, regulations, policies, or procedures and any system enhancements or changes, 17 |
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| 246 | 246 | | for which appropriations have been authorized, that are necessary to facilitate implementation of 18 |
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| 247 | 247 | | the requirements of this section by the dates established. The secretary shall reserve the discretion 19 |
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| 248 | 248 | | to exercise the authority established under §§ 42-7.2-5(6)(v) and 42-7.2-6.1, in consultation with 20 |
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| 249 | 249 | | the governor, to meet the legislative directives established herein. 21 |
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| 250 | 250 | | SECTION 2. This act shall take effect upon passage. 22 |
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| 251 | 251 | | ======== |
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| 252 | 252 | | LC000632 |
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| 254 | 254 | | |
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| 255 | 255 | | |
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| 256 | 256 | | LC000632 - Page 8 of 8 |
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| 257 | 257 | | EXPLANATION |
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| 258 | 258 | | BY THE LEGISLATIVE COUNCIL |
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| 259 | 259 | | OF |
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| 260 | 260 | | A N A C T |
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| 261 | 261 | | RELATING TO HUMAN SE RVICES -- MEDICAL ASSISTANCE -- LONG-TERM CARE |
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| 262 | 262 | | SERVICE AND FINANCE REFORM |
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| 263 | 263 | | *** |
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| 264 | 264 | | This act would amend the reimbursement the executive office of health and human services 1 |
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| 265 | 265 | | makes to home care providers, home nursing care providers and hospice providers not less than 2 |
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| 266 | 266 | | free-for-service rates. 3 |
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| 267 | 267 | | This act would take effect upon passage. 4 |
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| 268 | 268 | | ======== |
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| 269 | 269 | | LC000632 |
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| 270 | 270 | | ======== |
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