H.R. 5376 — what changed
Birth Through Five Child Care and Early Learning Entitlement Act
From Engrossed in House to Placed on Calendar Senate. 2 sections amended between Engrossed in House and Placed on Calendar Senate.
Sec. 30711 HCBS improvement planning grants
Funding—
renumbered
was (2)(3)
In general— In addition to amounts otherwise available, there is appropriated to the Secretary for fiscal year 2022, out of any money in the Treasury not otherwise appropriated, $130,000,000, to remain available until expended, for carrying out this section.
renumbered
was (2)(4)
Technical assistance and guidance— In addition to amounts otherwise available, there is appropriated to the Secretary for fiscal year 2022, out of any money in the Treasury not otherwise appropriated, $5,000,000, to remain available until expended, for purposes of issuing guidance and providing technical assistance to States intending to apply for, or which are awarded, a planning grant under this section, and for other administrative expenses related to awarding planning grants under this section.
Award and use of grants—
Deadline for award of grants— From the amount appropriated under subsection (a)(1), the Secretary, not later than 12 months after the date of enactment of this Act, shall solicit State requests for HCBS improvement planning grants and award such grants to all States that meet such requirements as determined by the Secretary.
Use of funds— Subject to paragraph (3), a State awarded a planning grant under this section shall use the grant to carry out planning activities for purposes of developing and submitting to the Secretary an HCBS improvement plan for the State that meets the requirements of subsections (c) and (d). A State may use planning grant funds to support activities related to the implementation of the HCBS improvement plan for the State, collect and report information described in subsection (c), identify areas for improvement to the service delivery systems for home and community-based services, carry out activities related to evaluating payment rates for home and community-based services and identifying improvements to update the rate setting process, and make related infrastructure investments (such as case management or other information technology systems).
Limitation on use of funds— None of the funds awarded to a State under this section may be used by a State as the source of the non-Federal share of expenditures under the State plan (or waiver of such plan).
HCBS improvement plan requirements— In order to meet the requirements of this subsection, an HCBS improvement plan developed using funds awarded to a State under this section shall include, with respect to the State and subject to subsection (d), the following:
Existing Medicaid HCBS landscape—
Eligibility and benefits— A description of the existing standards, pathways, and methodologies for eligibility for home and community-based services pursuant to the State plan (or waiver of such plan), including limits on assets and income, the home and community-based services available under the State Medicaid program and the types of settings in which they may be provided, and utilization management standards for such services.
Access—
Barriers— A description of the barriers to accessing home and community-based services in the State identified by Medicaid eligible individuals, the families of such individuals, and direct care workers and home care agencies, or other similar organizations.
Availability; unmet need— A summary, in accordance with guidance issued by the Secretary and as able to be practicably determined by the State, of the extent to which home and community-based services are available to all individuals in the State who would be eligible for such services under the State Medicaid program (including individuals who are on a waiting list for such services).
Utilization— An assessment of the utilization of home and community-based services in the State (including the number of individuals receiving such services) during such period specified by the Secretary.
Service delivery structures and supports— A description of the service delivery structures for providing home and community-based services in the State.
Workforce— A description of the direct care workforce, including estimates of the number of full- and part-time direct care workers, the average and range of direct care worker wages, the benefits provided to direct care workers, and the turnover and vacancy rates of direct care worker positions.
Payment rates—
In general— A description of the payment rates for home and community-based services, including, to the extent applicable, how payments for such services are factored into the development of managed care capitation rates, when the State last updated payment rates for home and community-based services, and an estimate of the portion of the payment rate that goes toward direct care worker compensation.
Assessment— An assessment of the relationship between payment rates for such services and workforce shortages, average beneficiary wait times for such services, and provider-to-beneficiary ratios in the geographic region.
Quality— A description of how the quality of home and community-based services is measured and monitored.
Long-term services and supports provided in institutional settings— A description of the number of individuals enrolled in the State Medicaid program in a year who receive items and services furnished by an institution for greater than 30 days in an institutional setting.
HCBS share of overall Medicaid LTSS spending— For the most recent State fiscal year for which complete data is available, the percentage of expenditures made by the State under the State Medicaid program for long-term services and supports that are for home and community-based services.
Demographic data— To the extent available and as applicable with respect to the information required under subparagraphs (B), (C), and (H), demographic data for such information, disaggregated by age groups, primary disability, income brackets, gender, race, ethnicity, geography, primary language, and type of service setting.
Goals for HCBS improvements— A description of how the State will do the following:
Conduct the activities required under subsection (jj) of section 1905 of the Social Security Act (as added under section 30712).
Reduce barriers to and disparities in access or utilization of home and community-based services in the State.
Monitor and report on access to home and community-based services under the State Medicaid program, disparities in access to such services, and the utilization of such services.
Monitor and report the amount of State Medicaid expenditures for home and community-based services under the State Medicaid program as a proportion of the total amount of State expenditures under the State Medicaid program for long-term services and supports.
Monitor and report on wages, benefits, and vacancy and turnover rates for direct care workers.
Assess and monitor the sufficiency of payment rates under the State Medicaid program, in a manner specified by the Secretary, for the specific types of home and community-based services available under such program for purposes of supporting direct care worker recruitment and retention and ensuring the availability of home and community-based services.
Coordinate implementation of the HCBS improvement plan among the State Medicaid agency and State health and human services agencies serving individuals with disabilities and the elderly.
Development and approval requirements—
Development requirements— In order to meet the requirements of this subsection, a State awarded a planning grant under this section shall develop an HCBS improvement plan for the State through a public notice and comment process that includes consultation with Medicaid eligible individuals who are recipients of home and community-based services, family caregivers of such recipients, providers, health plans, direct care workers, chosen representatives of direct care workers, and aging, disability, and workforce advocates.
Authority to adjust certain plan content requirements— The Secretary may modify the requirements for any of the information specified in subsection (c)(1) if a State requests a modification and demonstrates to the satisfaction of the Secretary that it is impracticable for the State to collect and submit the information.
Submission and approval— Not later than 24 months after the date on which a State is awarded a planning grant under this section, the State shall submit an HCBS improvement plan for approval by the Secretary, along with assurances by the State that the State will implement the plan in accordance with the requirements of the HCBS Improvement Program established under subsection (jj) of section 1905 of the Social Security Act (42 U.S.C. 1396d) (as added by section 30712). The Secretary shall approve and make publicly available the HCBS improvement plan for a State after the plan and such assurances are submitted to the Secretary for approval and the Secretary determines the plan meets the requirements of subsection (c). A State may amend its HCBS improvement plan, subject to the approval of the Secretary that the plan as so amended meets the requirements of subsection (c). The Secretary may withhold or recoup funds provided under this section to a State, if the State fails to comply with the requirements of this section.
Definitions— In the part:
Direct care worker— The term direct care worker means, with respect to a State, any of the following individuals who are paid to provide directly to Medicaid eligible individuals home and community-based services available under the State Medicaid program:
A registered nurse, licensed practical nurse, nurse practitioner, or clinical nurse specialist, or a licensed nursing assistant who provides such services under the supervision of a registered nurse, licensed practical nurse, nurse practitioner, or clinical nurse specialist.
A direct support professional.
A personal care attendant.
A home health aide.
Any other paid health care professional or worker determined to be appropriate by the State and approved by the Secretary.
HCBS program improvement State— The term HCBS program improvement State means a State that is awarded a planning grant under subsection (b) and has an HCBS improvement plan approved by the Secretary under subsection (d)(3).
Health plan— The term health plan means any of the following entities that provide or arrange for home and community-based services for Medicaid eligible individuals who are enrolled with the entities under a contract with a State:
A medicaid managed care organization, as defined in section 1903(m)(1)(A) of the Social Security Act (42 U.S.C. 1396b(m)(1)(A)).
A prepaid inpatient health plan or prepaid ambulatory health plan, as defined in section 438.2 of title 42, Code of Federal Regulations (or any successor regulation).
Home and community-based services— The term home and community-based services means any of the following (whether provided on a fee-for-service, risk, or other basis):
Home health care services authorized under paragraph (7) of section 1905(a) of the Social Security Act (42 U.S.C. 1396d(a)).
Private duty nursing services authorized under paragraph (8) of such section, when such services are provided in a Medicaid eligible individual’s home.
Personal care services authorized under paragraph (24) of such section.
PACE services authorized under paragraph (26) of such section.
Home and community-based services authorized under subsections (b), (c), (i), (j), and (k) of section 1915 of such Act (42 U.S.C. 1396n), authorized under a waiver under section 1115 of such Act (42 U.S.C. 1315), or provided through coverage authorized under section 1937 of such Act (42 U.S.C. 1396u–7).
Case management services authorized under section 1905(a)(19) of the Social Security Act (42 U.S.C. 1396d(a)(19)) and section 1915(g) of such Act (42 U.S.C. 1396n(g)).
Rehabilitative services, including those related to behavioral health, described in section 1905(a)(13) of such Act (42 U.S.C. 1396d(a)(13)).
Such other services specified by the Secretary.
Institutional setting— The term institutional setting means—
a skilled nursing facility (as defined in section 1819(a) of the Social Security Act (42 U.S.C. 1395i–3(a)));
a nursing facility (as defined in section 1919(a) of such Act (42 U.S.C. 1396r(a)));
a long-term care hospital (as described in section 1886(d)(1)(B)(iv) of such Act (42 U.S.C. 1395ww(d)(1)(B)(iv)));
a facility described in section 1905(d) of such Act (42 U.S.C. 1396d(d)));
an institution which is a psychiatric hospital (as defined in section 1861(f) of such Act (42 U.S.C. 1395x(f))) or that provides inpatient psychiatric services in a residential setting specified by the Secretary; and
an institution described in section 1905(i) of such Act (42 U.S.C. 1396d(i)).
Medicaid eligible individual— The term Medicaid eligible individual means an individual who is eligible for and receiving medical assistance under a State Medicaid plan or a waiver of such plan. Such term includes an individual who is on a waiting list and who would become eligible for medical assistance and enrolled under a State Medicaid plan, or waiver of such plan, upon receipt of home and community-based services.
State Medicaid program— The term State Medicaid program means, with respect to a State, the State program under title XIX of the Social Security Act (42 U.S.C. 1396 through 1396w-6) (including any waiver or demonstration under such title or under section 1115 of such Act (42 U.S.C. 1315) relating to such title).
Secretary— The term Secretary means the Secretary of Health and Human Services.
State— The term State means each of the 50 States, the District of Columbia, Puerto Rico, the Virgin Islands, Guam, the Northern Mariana Islands, and American Samoa.
Sec. 30721 Extending continuous coverage for pregnant and postpartum individuals
Medicaid—
Requiring full benefits for pregnant and postpartum individuals for 12-month period post pregnancy—
In general— Paragraph (5) of section 1902(e) of the Social Security Act (42 U.S.C. 1396a(e)) is amended—
by striking “(5) A woman who” and inserting “(5)(A) For any fiscal year quarter (beginning with the first fiscal year quarter beginning one year after the date of the enactment of the Act titled “An Act to provide for reconciliation pursuant to title II of S. Con. Res. 14”) with respect to which subparagraph (B) does not apply, an individual who”; and
by adding at the end the following new subparagraph:
“(B) For any fiscal year quarter (beginning with the first fiscal year quarter beginning one year after the date of the enactment of the Act titled “An Act to provide for reconciliation pursuant to title II of S. Con. Res. 14”), any individual who, while pregnant, is eligible for and received medical assistance under the State plan or a waiver of such plan (regardless of the basis for the individual’s eligibility for medical assistance and including during a period of retroactive eligibility under subsection (a)(34)), shall remain eligible, notwithstanding section 1916(c)(3) or any other limitation under this title, for medical assistance through the end of the month in which the 12-month period (beginning on the last day of pregnancy of the individual) ends, and such medical assistance shall be in accordance with clauses (i) and (ii) of paragraph (16)(B).”
Conforming amendments— Title XIX of the Social Security Act (42 U.S.C. 1396 through 1396w-6) is amended—
in section 1902(a)(10), in the matter following subparagraph (G), by striking “(VII) the medical assistance” and all that follows through “, (VIII)” and inserting “(VIII)”;
in section 1902(e)(6), by striking “In the case of” and inserting “For any fiscal year quarter with respect to which paragraph (5)(B) does not apply, in the case of”;
in section 1902(l)(1)(A), by striking “60-day period” and inserting “12-month period (or, for any fiscal year quarter with respect to which subsection (e)(5)(B) does not apply and for which the State has not adopted the option under section 1902(e)(16)(A), 60-day period)”;
in section 1903(v)(4)—
in subparagraph (A)(i), by striking “the 60-day period” and inserting “the applicable period (as described in subparagraph (D))”;
in subparagraph (A)(ii), by striking the period and inserting “, and, in the case of such an individual who is or becomes pregnant, such individual (regardless of age) during pregnancy and during the applicable period (as described in subparagraph (D)).”;
by adding at the end the following new subparagraph:
“(D) For purposes of subparagraph (A), the applicable period described in this subparagraph is—
“(i) beginning with the first fiscal year quarter that begins one year after the date of the enactment of the American Rescue Plan Act of 2021, for a State that has adopted the option under section 1902(e)(16)(A), the 12-month period;”
in the subparagraph (D) added by subclause (III), by adding at the end the following new clauses:
“(ii) beginning with the first fiscal year quarter beginning one year after the date of the enactment of the Act titled “An Act to provide for reconciliation pursuant to title II of S. Con. Res. 14”, the 12-month period; and
“(iii) for any fiscal year quarter (beginning with such first fiscal year quarter) with respect to which section 1902(e)(5)(B) does not apply and for which the State has not adopted the option under section 1902(e)(16)(A), the 60-day period.”
in section 1905(a), in the 4th sentence in the matter following paragraph (31), by striking “60-day period” and inserting “12-month period (or, for any fiscal year quarter with respect to which section 1902(e)(5)(B) does not apply and for which the State has not adopted the option under section 1902(e)(16)(A), 60-day period)”; and
in section 1905(y), by adding at the end the following new paragraph:
“(3) Treatment for certain indviduals—Notwithstanding paragraphs (1) and (2), section 1902(a)(10)(A)(i)(III), and section 1902(a)(10)(A)(i)(IV), the term “newly eligible” in paragraph (2)(A) and the phrase “newly eligible individuals described in subclause (VIII) of section 1902(a)(10)(A)(i)” in paragraph (1) shall apply to individuals who but for the amendments made by section 30721(a) of the Act titled ‘An Act to provide for reconciliation pursuant to title II of S. Con. Res. 14’ would be eligible under the State plan (or waiver) for medical assistance under section 1902(a)(10)(A)(i)(VIII) for the period beginning on the first day occurring after the end of such 60-day period and ending on the last day of the month in which the 12-month period (beginning on the last day of the pregnancy) ends.”
Transition from State option—
In general— Section 1902(e)(16)(A) of the Social Security Act (42 U.S.C. 1396a(e)(16)(A)) is amended by striking “At the option of the State” and inserting “For any fiscal year quarter with respect to which paragraph (5)(B) does not apply, at the option of the State”.
Conforming amendment— Section 9812(b) of the American Rescue Plan Act of 2021 (Public Law 117–2) is amended by striking “during the 5-year period”.
Effective date—
In general— Subject to subparagraphs (B) and (C), the amendments made by this paragraph shall take effect on the 1st day of the 1st fiscal year quarter that begins one year after the date of the enactment of this Act and shall apply with respect to medical assistance provided on or after such date.
Exception for certain American Rescue Plan Act of 2021 conforming amendments— The amendments made by subclauses (I), (II), and (III) of paragraph (1)(B)(iv) shall take effect on the first day of the first fiscal year quarter that begins one year after the date of the enactment of the American Rescue Plan Act of 2021 and shall apply with respect to medical assistance provided on or after such date.
Exception for State legislation— In the case of a State plan under title XIX of the Social Security Act (42 U.S.C. 1396 through 1396w-6) that the Secretary of Health and Human Services determines requires State legislation in order for the plan to meet any requirement imposed by amendments made by this subsection, the plan shall not be regarded as failing to comply with the requirements of such title solely on the basis of its failure to meet such a requirement before the first day of the first calendar quarter beginning after the close of the first regular session of the State legislature that begins after the date of the enactment of this Act. For purposes of the previous sentence, in the case of a State that has a 2-year legislative session, each year of the session shall be considered to be a separate regular session of the State legislature.
CHIP—
Requiring full benefits for pregnant and postpartum women for 12-month period post pregnancy—
In general— Section 2107(e)(1)(J) of the Social Security Act (42 U.S.C. 1397gg(e)(1)(J)) is amended—
by striking “Paragraphs (5) and (16)” and inserting “(i) For any fiscal year quarter with respect to which paragraph (5)(B) of section 1902(e) does not apply, paragraphs (5)(A) and (16) of such section”; and
by adding at the end the following new clause:
“(ii) For any fiscal year quarter (beginning with the first fiscal year quarter beginning one year after the date of the enactment of the Act titled “An Act to provide for reconciliation pursuant to title II of S. Con. Res. 14”), section 1902(e)(5)(B) (requiring, notwithstanding section 2103(e)(3)(C)(ii)(I) or any other limitation under this title, continuous coverage for pregnant and postpartum individuals, including 12 months postpartum, of medical assistance) if the State provides child health assistance to targeted low-income children or pregnancy-related assistance to targeted low-income pregnant women, under the State child health plan or waiver, including coverage of all items or services provided to a targeted low-income child or targeted low-income pregnant woman (as applicable) under the State child health plan or waiver).”
Conforming amendments— Section 2112 of the Social Security Act (42 U.S.C. 1397ll) is amended—
in subsection (d)—
in paragraph (1), by inserting “and includes, through application of section 1902(e)(5)(B) pursuant to section 2107(e)(1)(J)(ii), continuous coverage for pregnant and postpartum individuals, including 12 months postpartum” before the period at the end; and
in paragraph (2)(A), by striking “60-day period” and all that follows through “ends” and inserting “12-month period (or, for any fiscal year quarter with respect to which section 2107(e)(1)(J)(ii) does not apply and for which the State has not adopted the option under section 1902(e)(16)(A), 60-day period) ends”; and
in subsection (f)(2), by striking “60-day period” and inserting “12-month period (or, for any fiscal year quarter (beginning with the first fiscal year quarter beginning one year after the date of the enactment of the Act titled “An Act to provide for reconciliation pursuant to title II of S. Con. Res. 14”) with respect to which section 2107(e)(1)(J)(ii) does not apply and for which the State has not adopted the option under section 1902(e)(16)(A), 60-day period)”.
Transition from State plan option— Section 9822(b) of the American Rescue Plan Act of 2021 (Public Law 117–2) is amended by striking “, during the 5-year period”.
Effective date—
renumbered
was (3)(4)(3)
In general— Subject to subparagraph (B), the amendments made by this subsection shall take effect on the 1st day of the 1st fiscal year quarter that begins one year after the date of the enactment of this Act and shall apply with respect to child health assistance and pregnancy-related assistance, as applicable, provided on or after such date.
renumbered
was (3)(4)(4)
Exception for State legislation— In the case of a State child health plan under title XXI of the Social Security Act (42 U.S.C. 1397aa through 1397mm) that the Secretary of Health and Human Services determines requires State legislation in order for the plan to meet any requirement imposed by amendments made under this subsection, the plan shall not be regarded as failing to comply with the requirements of such title solely on the basis of its failure to meet such a requirement before the first day of the first calendar quarter beginning after the close of the first regular session of the State legislature that begins after the date of the enactment of this Act. For purposes of the previous sentence, in the case of a State that has a 2-year legislative session, each year of the session shall be considered to be a separate regular session of the State legislature.