---
kind: "range"
citation: "42 U.S.C. §§ 1396–1396v"
title: "42"
from: "1396"
to: "1396v"
count: 47
release: "119-102"
url: "https://uscodex.org/usc/42/1396..1396v"
---

# §1396. Medicaid and CHIP Payment and Access Commission

- (a) **Establishment—** There is hereby established the [Medicaid](/usc/42/1396b.md?p=w-3-E-iii-III-aa) and CHIP Payment and Access [Commission](/usc/42/2000ff.md?p=1) (in this section referred to as “MACPAC”).
- (b) **Duties—**
  - (1) **Review of access policies for all States and annual reports—** MACPAC shall—
    - (A) review policies of the [Medicaid](/usc/42/1396b.md?p=w-3-E-iii-III-aa) [program](/usc/42/274l–1.md?p=4) established under this subchapter (in this section referred to as “[Medicaid](/usc/42/1396b.md?p=w-3-E-iii-III-aa)”) and the [State](/usc/42/1396b.md?p=w-7-D) [Children](/usc/42/256e.md?p=g-2)’s Health Insurance [Program](/usc/42/274l–1.md?p=4) established under subchapter XXI (in this section referred to as “CHIP”) affecting access to covered items and services, [including](/usc/42/1301.md?p=b) topics described in [paragraph (2)](#b-2);
    - (B) make recommendations to Congress, the [Secretary](/usc/42/1301.md?p=a-6), and [States](/usc/42/1396b.md?p=w-7-D) concerning such access policies;
    - (C) by not later than March 15 of each year (beginning with 2010), submit a report to Congress containing the results of such reviews and MACPAC’s recommendations concerning such policies; and
    - (D) by not later than June 15 of each year (beginning with 2010), submit a report to Congress containing an examination of issues affecting [Medicaid](/usc/42/1396b.md?p=w-3-E-iii-III-aa) and CHIP, [including](/usc/42/1301.md?p=b) the implications of changes in health care delivery in the [United States](/usc/42/1301.md?p=a-2) and in the market for health care services on such [programs](/usc/42/274l–1.md?p=4).
  - (2) **Specific topics to be reviewed—** Specifically, MACPAC shall review and assess the following:
    - (A) **Medicaid and CHIP payment policies—** Payment policies under [Medicaid](/usc/42/1396b.md?p=w-3-E-iii-III-aa) and CHIP, [including](/usc/42/1301.md?p=b)—
      - (i) the factors affecting expenditures for the efficient provision of items and services in different sectors, [including](/usc/42/1301.md?p=b) the process for updating payments to medical, dental, and health professionals, [hospitals](/usc/42/1395dd.md?p=e-5), residential and [long-term care](/usc/42/1397j.md?p=14-A) providers, providers of home and [community based](/usc/42/11851.md?p=1) services, [Federally-qualified health centers](/usc/42/1396d.md?p=l-2-B) and [rural health clinics](/usc/42/254c.md?p=b-2), [managed care entities](/usc/42/1396b.md?p=m-9-D-i), and providers of other covered items and services;
      - (ii) payment methodologies; and
      - (iii) the relationship of such factors and methodologies to access and quality of care for [Medicaid](/usc/42/1396b.md?p=w-3-E-iii-III-aa) and CHIP beneficiaries ([including](/usc/42/1301.md?p=b) how such factors and methodologies enable such beneficiaries to obtain the services for which they are eligible, affect provider supply, and affect providers that serve a disproportionate share of low-[income](/usc/42/292s.md?p=c-4) and other vulnerable populations).
    - (B) **Eligibility policies—** [Medicaid](/usc/42/1396b.md?p=w-3-E-iii-III-aa) and CHIP eligibility policies, [including](/usc/42/1301.md?p=b) a determination of the degree to which Federal and [State](/usc/42/1396b.md?p=w-7-D) policies provide health care coverage to needy populations.
    - (C) **Enrollment and retention processes—** [Medicaid](/usc/42/1396b.md?p=w-3-E-iii-III-aa) and CHIP enrollment and retention processes, [including](/usc/42/1301.md?p=b) a determination of the degree to which Federal and [State](/usc/42/1396b.md?p=w-7-D) policies encourage the enrollment of individuals who are eligible for such [programs](/usc/42/274l–1.md?p=4) and screen out individuals who are ineligible, while minimizing the share of [program](/usc/42/274l–1.md?p=4) expenses devoted to such processes.
    - (D) **Coverage policies—** [Medicaid](/usc/42/1396b.md?p=w-3-E-iii-III-aa) and CHIP benefit and coverage policies, [including](/usc/42/1301.md?p=b) a determination of the degree to which Federal and [State](/usc/42/1396b.md?p=w-7-D) policies provide access to the services enrollees require to improve and maintain their health and functional status.
    - (E) **Quality of care—** [Medicaid](/usc/42/1396b.md?p=w-3-E-iii-III-aa) and CHIP policies as they relate to the quality of care provided under those [programs](/usc/42/274l–1.md?p=4), [including](/usc/42/1301.md?p=b) a determination of the degree to which Federal and [State](/usc/42/1396b.md?p=w-7-D) policies achieve their stated goals and interact with similar goals established by other purchasers of health care services.
    - (F) **Interaction of Medicaid and CHIP payment policies with health care delivery generally—** The effect of [Medicaid](/usc/42/1396b.md?p=w-3-E-iii-III-aa) and CHIP payment policies on access to items and services for [children](/usc/42/256e.md?p=g-2) and other [Medicaid](/usc/42/1396b.md?p=w-3-E-iii-III-aa) and CHIP populations other than under this subchapter or subchapter XXI and the implications of changes in health care delivery in the [United States](/usc/42/1301.md?p=a-2) and in the general market for health care items and services on [Medicaid](/usc/42/1396b.md?p=w-3-E-iii-III-aa) and CHIP.
    - (G) **Interactions with Medicare and Medicaid—** Consistent with [paragraph (11)](#b-11), the interaction of policies under [Medicaid](/usc/42/1396b.md?p=w-3-E-iii-III-aa) and the Medicare [program](/usc/42/274l–1.md?p=4) under subchapter XVIII, [including](/usc/42/1301.md?p=b) with respect to how such interactions affect access to services, payments, and dual [eligible individuals](/usc/42/239.md?p=a-6).
    - (H) **Other access policies—** The effect of other [Medicaid](/usc/42/1396b.md?p=w-3-E-iii-III-aa) and CHIP policies on access to covered items and services, [including](/usc/42/1301.md?p=b) policies relating to transportation and language barriers and preventive, acute, and long-term services and supports.
  - (3) **Recommendations and reports of State-specific data—** MACPAC shall—
    - (A) review national and [State](/usc/42/1396b.md?p=w-7-D)-specific [Medicaid](/usc/42/1396b.md?p=w-3-E-iii-III-aa) and CHIP data; and
    - (B) submit reports and recommendations to Congress, the [Secretary](/usc/42/1301.md?p=a-6), and [States](/usc/42/1396b.md?p=w-7-D) based on such reviews.
  - (4) **Creation of early-warning system—** MACPAC shall create an early-warning system to identify provider shortage areas, as well as other factors that adversely affect, or have the potential to adversely affect, access to care by, or the health care status of, [Medicaid](/usc/42/1396b.md?p=w-3-E-iii-III-aa) and CHIP beneficiaries. MACPAC shall include in the annual report required under [paragraph (1)(D)](#b-1-D) a description of all such areas or problems identified with respect to the period addressed in the report.
  - (5) **Comments on certain secretarial reports and regulations—**
    - (A) **Certain secretarial reports—** If the [Secretary](/usc/42/1301.md?p=a-6) submits to Congress (or a committee of Congress) a report that is required by law and that relates to access policies, [including](/usc/42/1301.md?p=b) with respect to payment policies, under [Medicaid](/usc/42/1396b.md?p=w-3-E-iii-III-aa) or CHIP, the [Secretary](/usc/42/1301.md?p=a-6) shall transmit a copy of the report to MACPAC. MACPAC shall review the report and, not later than 6 months after the date of submittal of the [Secretary](/usc/42/1301.md?p=a-6)’s report to Congress, shall submit to the [appropriate committees of Congress](#b-8) and the [Secretary](/usc/42/1301.md?p=a-6) written comments on such report. Such comments may include such recommendations as MACPAC deems appropriate.
    - (B) **Regulations—** MACPAC shall review [Medicaid](/usc/42/1396b.md?p=w-3-E-iii-III-aa) and CHIP regulations and may comment through submission of a report to the [appropriate committees of Congress](#b-8) and the [Secretary](/usc/42/1301.md?p=a-6), on any such regulations that affect access, quality, or efficiency of health care.
  - (6) **Agenda and additional reviews—**
    - (A) **In general—** MACPAC shall consult periodically with the chairmen and ranking [minority](/usc/42/299a–1.md?p=d-2) members of the [appropriate committees of Congress](#b-8) regarding MACPAC’s agenda and progress towards achieving the agenda. MACPAC may conduct additional reviews, and submit additional reports to the [appropriate committees of Congress](#b-8), from time to time on such topics relating to the [program](/usc/42/274l–1.md?p=4) under this subchapter or subchapter XXI as may be requested by such chairmen and members and as MACPAC deems appropriate.
    - (B) **Review and reports regarding Medicaid DSH—**
      - (i) **In general—** MACPAC shall review and submit an annual report to Congress on disproportionate share [hospital](/usc/42/1395dd.md?p=e-5) payments under [section 1396r–4 of this title](/usc/42/1396r–4.md). Each report shall include the information specified in [clause (ii)](#b-6-B-ii).
      - (ii) **Required report information—** Each report required under this subparagraph shall include the following:
        - (I) Data relating to changes in the number of uninsured individuals.
        - (II) Data relating to the amount and sources of [hospitals](/usc/42/1395dd.md?p=e-5)’ uncompensated care costs, [including](/usc/42/1301.md?p=b) the amount of such costs that are the result of providing unreimbursed or under-reimbursed services, charity care, or bad debt.
        - (III) Data identifying [hospitals](/usc/42/1395dd.md?p=e-5) with high levels of uncompensated care that also provide access to essential community services for low-[income](/usc/42/292s.md?p=c-4), uninsured, and vulnerable populations, such as graduate medical education, and the continuum of primary through quarternary care, [including](/usc/42/1301.md?p=b) the provision of trauma care and public health services.
        - (IV) [State](/usc/42/1396b.md?p=w-7-D)-specific analyses regarding the relationship between the most recent [State](/usc/42/1396b.md?p=w-7-D) DSH allotment and the projected [State](/usc/42/1396b.md?p=w-7-D) DSH allotment for the succeeding year and the data reported under subclauses [(I)](#b-6-B-ii-I), [(II)](#b-6-B-ii-II), and [(III)](#b-6-B-ii-III) for the [State](/usc/42/1396b.md?p=w-7-D).
      - (iii) **Data—** Notwithstanding any other provision of law, the [Secretary](/usc/42/1301.md?p=a-6) regularly shall provide MACPAC with the most recent [State](/usc/42/1396b.md?p=w-7-D) reports and most recent independent certified audits submitted under [section 1396r–4(j) of this title](/usc/42/1396r–4.md?p=j), cost reports submitted under subchapter XVIII, and such other data as MACPAC may request for purposes of conducting the reviews and preparing and submitting the annual reports required under this subparagraph.
      - (iv) **Submission deadlines—** The first report required under this subparagraph shall be submitted to Congress not later than February 1, 2016. Subsequent reports shall be submitted as part of, or with, each annual report required under [paragraph (1)(C)](#b-1-C) during the period of fiscal years 2017 through 2024.
  - (7) **Availability of reports—** MACPAC shall transmit to the [Secretary](/usc/42/1301.md?p=a-6) a copy of each report submitted under this subsection and shall make such reports available to the public.
  - (8) **Appropriate committee of Congress—** For purposes of this section, the term “appropriate committees of Congress” means the Committee on [Energy](/usc/42/6311.md?p=7) and [Commerce](/usc/42/6311.md?p=7) of the House of [Representatives](/usc/42/3058f.md?p=5) and the Committee on Finance of the Senate.
  - (9) **Voting and reporting requirements—** With respect to each recommendation contained in a report submitted under [paragraph (1)](#b-1), each member of MACPAC shall vote on the recommendation, and MACPAC shall include, by member, the results of that vote in the report containing the recommendation.
  - (10) **Examination of budget consequences—** Before making any recommendations, MACPAC shall examine the budget consequences of such recommendations, directly or through consultation with appropriate expert entities, and shall submit with any recommendations, a report on the Federal and [State](/usc/42/1396b.md?p=w-7-D)-specific budget consequences of the recommendations.
  - (11) **Consultation and coordination with MEDPAC—**
    - (A) **In general—** MACPAC shall consult with the Medicare Payment Advisory [Commission](/usc/42/2000ff.md?p=1) (in this paragraph referred to as “MedPAC”) established under [section 1395b–6 of this title](/usc/42/1395b–6.md) in carrying out its duties under this section, as appropriate and particularly with respect to the issues specified in [paragraph (2)](#b-2) as they relate to those [Medicaid](/usc/42/1396b.md?p=w-3-E-iii-III-aa) beneficiaries who are dually eligible for [Medicaid](/usc/42/1396b.md?p=w-3-E-iii-III-aa) and the Medicare [program](/usc/42/274l–1.md?p=4) under subchapter XVIII, adult [Medicaid](/usc/42/1396b.md?p=w-3-E-iii-III-aa) beneficiaries (who are not dually eligible for Medicare), and beneficiaries under Medicare. Responsibility for analysis of and recommendations to change Medicare policy regarding Medicare beneficiaries, [including](/usc/42/1301.md?p=b) Medicare beneficiaries who are dually eligible for Medicare and [Medicaid](/usc/42/1396b.md?p=w-3-E-iii-III-aa), shall rest with MedPAC.
    - (B) **Information sharing—** MACPAC and MedPAC shall have access to deliberations and records of the other such entity, respectively, upon the request of the other such entity.
  - (12) **Consultation with States—** MACPAC shall regularly consult with [States](/usc/42/1396b.md?p=w-7-D) in carrying out its duties under this section, [including](/usc/42/1301.md?p=b) with respect to developing processes for carrying out such duties, and shall ensure that input from [States](/usc/42/1396b.md?p=w-7-D) is taken into account and represented in MACPAC’s recommendations and reports.
  - (13) **Coordinate and consult with the Federal Coordinated Health Care Office—** MACPAC shall coordinate and consult with the Federal Coordinated Health Care [Office](/usc/42/3058f.md?p=1) established under section 2081[^1] of the Patient Protection and Affordable Care Act before making any recommendations regarding dual [eligible individuals](/usc/42/239.md?p=a-6).
  - (14) **Programmatic oversight vested in the Secretary—** MACPAC’s authority to make recommendations in accordance with this section shall not affect, or be considered to duplicate, the [Secretary](/usc/42/1301.md?p=a-6)’s authority to carry out Federal responsibilities with respect to [Medicaid](/usc/42/1396b.md?p=w-3-E-iii-III-aa) and CHIP.
- (c) **Membership—**
  - (1) **Number and appointment—** MACPAC shall be composed of 17 members appointed by the Comptroller General of the [United States](/usc/42/1301.md?p=a-2).
  - (2) **Qualifications—**
    - (A) **In general—** The membership of MACPAC shall include individuals who have had direct experience as enrollees or [parents](/usc/42/1396a.md?p=k-3) or [caregivers](/usc/42/1397j.md?p=3) of enrollees in [Medicaid](/usc/42/1396b.md?p=w-3-E-iii-III-aa) or CHIP and individuals with national recognition for their expertise in Federal safety net health [programs](/usc/42/274l–1.md?p=4), health finance and economics, actuarial science, [health plans](/usc/42/300jj.md?p=6) and integrated delivery systems, reimbursement for health care, [health information](/usc/42/300jj.md?p=4) technology, and other providers of health services, public health, and other related fields, who provide a mix of different professions, broad geographic representation, and a balance between urban and rural representation.
    - (B) **Inclusion—** The membership of MACPAC shall include (but not be limited to) [physicians](/usc/42/1396d.md?p=e), dentists, and other health professionals, employers, third-party payers, and individuals with expertise in the delivery of health services. Such membership shall also include [representatives](/usc/42/3058f.md?p=5) of [children](/usc/42/256e.md?p=g-2), pregnant women, the elderly, individuals with disabilities, [caregivers](/usc/42/1397j.md?p=3), and dual [eligible individuals](/usc/42/239.md?p=a-6), current or former [representatives](/usc/42/3058f.md?p=5) of [State agencies](/usc/42/1320a–7a.md?p=i-1) responsible for administering [Medicaid](/usc/42/1396b.md?p=w-3-E-iii-III-aa), and current or former [representatives](/usc/42/3058f.md?p=5) of [State agencies](/usc/42/1320a–7a.md?p=i-1) responsible for administering CHIP.
    - (C) **Majority nonproviders—** Individuals who are directly involved in the provision, or management of the delivery, of items and services covered under [Medicaid](/usc/42/1396b.md?p=w-3-E-iii-III-aa) or CHIP shall not constitute a majority of the membership of MACPAC.
    - (D) **Ethical disclosure—** The Comptroller General of the [United States](/usc/42/1301.md?p=a-2) shall establish a system for public disclosure by members of MACPAC of financial and other potential conflicts of interest relating to such members. Members of MACPAC shall be treated as [employees](/usc/42/1320a–7h.md?p=e-7) of Congress for purposes of applying subchapter I of [chapter 131](/usc/5/chptIV-ch131.md) of title 5.
  - (3) **Terms—**
    - (A) **In general—** The terms of members of MACPAC shall be for 3 years except that the Comptroller General of the [United States](/usc/42/1301.md?p=a-2) shall designate staggered terms for the members first appointed.
    - (B) **Vacancies—** Any member appointed to fill a vacancy occurring before the expiration of the term for which the member’s predecessor was appointed shall be appointed only for the remainder of that term. A member may serve after the expiration of that member’s term until a successor has taken [office](/usc/42/3058f.md?p=1). A vacancy in MACPAC shall be filled in the manner in which the original appointment was made.
  - (4) **Compensation—** While serving on the business of MACPAC ([including](/usc/42/1301.md?p=b) travel time), a member of MACPAC shall be entitled to compensation at the per diem equivalent of the rate provided for level IV of the Executive Schedule under [section 5315 of title 5](/usc/5/5315.md); and while so serving away from home and the member’s regular place of business, a member may be allowed travel expenses, as authorized by the Chairman of MACPAC. [Physicians](/usc/42/1396d.md?p=e) serving as personnel of MACPAC may be provided a [physician](/usc/42/1301.md?p=a-7) comparability allowance by MACPAC in the same manner as Government [physicians](/usc/42/1396d.md?p=e) may be provided such an allowance by an [agency](/usc/42/1397n–12.md?p=1) under [section 5948 of title 5](/usc/5/5948.md), and for such purpose [subsection (i)](/usc/5/5948.md?p=i) of such section shall apply to MACPAC in the same manner as it applies to the Tennessee Valley Authority. For purposes of pay (other than pay of members of MACPAC) and employment benefits, rights, and privileges, all personnel of MACPAC shall be treated as if they were [employees](/usc/42/1320a–7h.md?p=e-7) of the [United States](/usc/42/1301.md?p=a-2) Senate.
  - (5) **Chairman; Vice Chairman—** The Comptroller General of the [United States](/usc/42/1301.md?p=a-2) shall designate a member of MACPAC, at the time of appointment of the member[^2] as Chairman and a member as Vice Chairman for that term of appointment, except that in the case of vacancy of the Chairmanship or Vice Chairmanship, the Comptroller General of the [United States](/usc/42/1301.md?p=a-2) may designate another member for the remainder of that member’s term.
  - (6) **Meetings—** MACPAC shall meet at the call of the Chairman.
- (d) **Director and staff; experts and consultants—** Subject to such review as the Comptroller General of the [United States](/usc/42/1301.md?p=a-2) deems necessary to assure the efficient [administration](/usc/42/1301.md?p=a-10) of MACPAC, MACPAC may—
  - (1) employ and fix the compensation of an [Executive Director](/usc/42/4370m.md?p=12) (subject to the approval of the Comptroller General of the [United States](/usc/42/1301.md?p=a-2)) and such other personnel as may be necessary to carry out its duties (without regard to the provisions of [title 5](/usc/5.md) governing appointments in the competitive service);
  - (2) seek such assistance and support as may be required in the performance of its duties from appropriate Federal and State departments and [agencies](/usc/42/1397n–12.md?p=1);
  - (3) enter into contracts or make other arrangements, as may be necessary for the conduct of the work of MACPAC (without regard to [section 6101 of title 41](/usc/41/6101.md));
  - (4) make advance, progress, and other payments which relate to the work of MACPAC;
  - (5) provide transportation and subsistence for [persons](/usc/42/1301.md?p=a-3) serving without compensation; and
  - (6) prescribe such rules and regulations as it deems necessary with respect to the internal organization and operation of MACPAC.
- (e) **Powers—**
  - (1) **Obtaining official data—** MACPAC may secure directly from any department or [agency](/usc/42/1397n–12.md?p=1) of the [United States](/usc/42/1301.md?p=a-2) and, as a condition for receiving payments under sections [1396b(a)](/usc/42/1396b.md?p=a) and [1397ee(a)](/usc/42/1397ee.md?p=a) of this title, from any [State agency](/usc/42/1320a–7a.md?p=i-1) responsible for administering [Medicaid](/usc/42/1396b.md?p=w-3-E-iii-III-aa) or CHIP, information necessary to enable it to carry out this section. Upon request of the Chairman, the head of that department or [agency](/usc/42/1397n–12.md?p=1) shall furnish that information to MACPAC on an agreed upon schedule.
  - (2) **Data collection—** In order to carry out its functions, MACPAC shall—
    - (A) utilize existing information, both published and unpublished, where possible, collected and assessed either by its own staff or under other arrangements made in accordance with this section;
    - (B) carry out, or award [grants](/usc/42/1397j.md?p=10) or contracts for, original research and experimentation, where existing information is inadequate; and
    - (C) adopt procedures allowing any interested party to submit information for MACPAC’s use in making reports and recommendations.
  - (3) **Access of GAO to information—** The Comptroller General of the [United States](/usc/42/1301.md?p=a-2) shall have unrestricted access to all deliberations, records, and nonproprietary data of MACPAC, immediately upon request.
  - (4) **Periodic audit—** MACPAC shall be subject to periodic audit by the Comptroller General of the [United States](/usc/42/1301.md?p=a-2).
- (f) **Funding—**
  - (1) **Request for appropriations—** MACPAC shall submit requests for appropriations (other than for fiscal year 2010) in the same manner as the Comptroller General of the [United States](/usc/42/1301.md?p=a-2) submits requests for appropriations, but amounts appropriated for MACPAC shall be separate from amounts appropriated for the Comptroller General of the [United States](/usc/42/1301.md?p=a-2).
  - (2) **Authorization—** There are authorized to be appropriated such sums as may be necessary to carry out the provisions of this section.
  - (3) **Funding for fiscal year 2010—**
    - (A) **In general—** Out of any [funds](/usc/42/12854.md?p=3) in the Treasury not otherwise appropriated, there is appropriated to MACPAC to carry out the provisions of this section for fiscal year 2010, $9,000,000.
    - (B) **Transfer of funds—** Notwithstanding [section 1397dd(a)(13) of this title](/usc/42/1397dd.md?p=a-13), from the amounts appropriated in such section for fiscal year 2010, $2,000,000 is hereby transferred and made available in such fiscal year to MACPAC to carry out the provisions of this section.
  - (4) **Availability—** Amounts made available under paragraphs [(2)](#f-2) and [(3)](#f-3) to MACPAC to carry out the provisions of this section shall remain available until expended.

# §1396–1. Appropriations


For the purpose of enabling each [State](/usc/42/1396b.md?p=w-7-D), as far as practicable under the conditions in such [State](/usc/42/1396b.md?p=w-7-D), to furnish (1) medical assistance on behalf of [families](/usc/42/12704.md?p=11) with dependent [children](/usc/42/256e.md?p=g-2) and of aged, blind, or disabled individuals, whose [income](/usc/42/292s.md?p=c-4) and resources are insufficient to meet the costs of necessary medical services, and (2) rehabilitation and other services to help such [families](/usc/42/12704.md?p=11) and individuals attain or retain capability for [independence](/usc/42/242q–4.md?p=1-B) or self-care, there is hereby authorized to be appropriated for each fiscal year a sum sufficient to carry out the purposes of this subchapter. The sums made available under this section shall be used for making payments to [States](/usc/42/1396b.md?p=w-7-D) which have submitted, and had approved by the [Secretary](/usc/42/1301.md?p=a-6), [State](/usc/42/1396b.md?p=w-7-D) plans for medical assistance.


# §1396a. State plans for medical assistance

- (a) **Contents—** A [State](/usc/42/1396b.md?p=w-7-D) plan for medical assistance must—
  - (1) provide that it shall be in effect in all political subdivisions of the [State](/usc/42/1396b.md?p=w-7-D), and, if administered by them, be mandatory upon them;
  - (2) provide for financial participation by the [State](/usc/42/1396b.md?p=w-7-D) equal to not less than 40 per centum of the non-Federal share of the expenditures under the plan with respect to which payments under [section 1396b of this title](/usc/42/1396b.md) are authorized by this subchapter; and, effective July 1, 1969, provide for financial participation by the [State](/usc/42/1396b.md?p=w-7-D) equal to all of such non-Federal share or provide for distribution of [funds](/usc/42/12854.md?p=3) from Federal or [State](/usc/42/1396b.md?p=w-7-D) sources, for carrying out the [State](/usc/42/1396b.md?p=w-7-D) plan, on an equalization or other basis which will assure that the lack of adequate [funds](/usc/42/12854.md?p=3) from local sources will not result in lowering the amount, duration, scope, or quality of care and services available under the plan;
  - (3) provide for granting an opportunity for a fair hearing before the [State agency](/usc/42/1320a–7a.md?p=i-1) to any individual whose [claim](/usc/42/1320a–7a.md?p=i-2) for medical assistance under the plan is denied or is not acted upon with reasonable promptness;
  - (4) provide (A) such methods of [administration](/usc/42/1301.md?p=a-10) ([including](/usc/42/1301.md?p=b) methods relating to the establishment and maintenance of personnel [standards](/usc/42/1320d.md?p=7) on a merit basis, except that the [Secretary](/usc/42/1301.md?p=a-6) shall exercise no authority with respect to the selection, tenure of [office](/usc/42/3058f.md?p=1), and compensation of any individual employed in accordance with such methods, [including](/usc/42/1301.md?p=b) provision for utilization of professional medical personnel in the [administration](/usc/42/1301.md?p=a-10) and, where administered locally, supervision of [administration](/usc/42/1301.md?p=a-10) of the plan, and, subject to [section 1396b(i) of this title](/usc/42/1396b.md?p=i), [including](/usc/42/1301.md?p=b) a specification that the [single](/usc/42/2304.md?p=m) [State agency](/usc/42/1320a–7a.md?p=i-1) described in [paragraph (5)](#a-5) will ensure necessary transportation for beneficiaries under the [State](/usc/42/1396b.md?p=w-7-D) plan to and from providers and a description of the methods that such [agency](/usc/42/1397n–12.md?p=1) will use to ensure such transportation) as are found by the [Secretary](/usc/42/1301.md?p=a-6) to be necessary for the proper and efficient operation of the plan, (B) for the [training](/usc/42/285e–2.md?p=b-2) and effective use of paid subprofessional staff, with particular emphasis on the full-time or part-time employment of [recipients](/usc/42/2996a.md?p=6) and other [persons of low income](/usc/42/5302.md?p=a-20-A), as community service aides, in the [administration](/usc/42/1301.md?p=a-10) of the plan and for the use of nonpaid or partially paid volunteers in a [social](/usc/42/1397j.md?p=20) service volunteer [program](/usc/42/274l–1.md?p=4) in providing services to applicants and [recipients](/usc/42/2996a.md?p=6) and in assisting any [advisory committees](/usc/42/7703.md?p=9) established by the [State agency](/usc/42/1320a–7a.md?p=i-1), (C) that each [State](/usc/42/1396b.md?p=w-7-D) or local officer, [employee](/usc/42/1320a–7h.md?p=e-7), or independent contractor who is responsible for the expenditure of substantial amounts of [funds](/usc/42/12854.md?p=3) under the [State](/usc/42/1396b.md?p=w-7-D) plan, each individual who formerly was such an officer, [employee](/usc/42/1320a–7h.md?p=e-7), or contractor, and each partner of such an officer, [employee](/usc/42/1320a–7h.md?p=e-7), or contractor shall be prohibited from committing any act, in relation to any activity under the plan, the [commission](/usc/42/2000ff.md?p=1) of which, in connection with any activity concerning the [United States](/usc/42/1301.md?p=a-2) Government, by an officer or [employee](/usc/42/1320a–7h.md?p=e-7) of the [United States](/usc/42/1301.md?p=a-2) Government, an individual who was such an officer or [employee](/usc/42/1320a–7h.md?p=e-7), or a partner of such an officer or [employee](/usc/42/1320a–7h.md?p=e-7) is prohibited by section [207](/usc/18/207.md) or [208](/usc/18/208.md) of title 18, and (D) that each [State](/usc/42/1396b.md?p=w-7-D) or local officer, [employee](/usc/42/1320a–7h.md?p=e-7), or independent contractor who is responsible for selecting, awarding, or otherwise obtaining items and services under the [State](/usc/42/1396b.md?p=w-7-D) plan shall be subject to safeguards against conflicts of interest that are at least as stringent as the safeguards that apply under [chapter 21](/usc/41/chstI-dB-ch21.md) of title 41 to [persons](/usc/42/1301.md?p=a-3) described in [section 2102(a)(3) of title 41](/usc/41/2102.md?p=a-3);
  - (5) either provide for the establishment or designation of a [single](/usc/42/2304.md?p=m) [State agency](/usc/42/1320a–7a.md?p=i-1) to administer or to supervise the [administration](/usc/42/1301.md?p=a-10) of the plan; or provide for the establishment or designation of a [single](/usc/42/2304.md?p=m) [State agency](/usc/42/1320a–7a.md?p=i-1) to administer or to supervise the [administration](/usc/42/1301.md?p=a-10) of the plan, except that the determination of eligibility for medical assistance under the plan shall be made by the [State](/usc/42/1396b.md?p=w-7-D) or local [agency](/usc/42/1397n–12.md?p=1) administering the [State](/usc/42/1396b.md?p=w-7-D) plan approved under subchapter I or XVI (insofar as it relates to the aged) if the [State](/usc/42/1396b.md?p=w-7-D) is eligible to participate in the [State](/usc/42/1396b.md?p=w-7-D) plan [program](/usc/42/274l–1.md?p=4) established under subchapter XVI, or by the [agency](/usc/42/1397n–12.md?p=1) or [agencies](/usc/42/1397n–12.md?p=1) administering the supplemental security [income](/usc/42/292s.md?p=c-4) [program](/usc/42/274l–1.md?p=4) established under subchapter XVI or the [State](/usc/42/1396b.md?p=w-7-D) plan approved under part A of subchapter IV if the [State](/usc/42/1396b.md?p=w-7-D) is not eligible to participate in the [State](/usc/42/1396b.md?p=w-7-D) plan [program](/usc/42/274l–1.md?p=4) established under subchapter XVI;
  - (6) provide that the [State agency](/usc/42/1320a–7a.md?p=i-1) will make such reports, in such form and containing such information, as the [Secretary](/usc/42/1301.md?p=a-6) may from time to time require, and comply with such provisions as the [Secretary](/usc/42/1301.md?p=a-6) may from time to time find necessary to assure the correctness and verification of such reports;
  - (7) provide—
    - (A) safeguards which restrict the use or disclosure of information concerning applicants and [recipients](/usc/42/2996a.md?p=6) to purposes directly connected with—
      - (i) the [administration](/usc/42/1301.md?p=a-10) of the plan; and
      - (ii) the [exchange](/usc/42/300gg–91.md?p=d-21) of information necessary to certify or verify the certification of eligibility of [children](/usc/42/256e.md?p=g-2) for free or reduced price breakfasts under the [Child](/usc/42/416.md?p=e) Nutrition Act of 1966 [[42 U.S.C. 1771](/usc/42/1771.md) et seq.] and free or reduced price lunches under the Richard B. Russell National [School](/usc/42/6372.md?p=1) Lunch Act [[42 U.S.C. 1751](/usc/42/1751.md) et seq.], in accordance with section 9(b) of that Act [[42 U.S.C. 1758(b)](/usc/42/1758.md?p=b)], using data [standards](/usc/42/1320d.md?p=7) and formats established by the [State agency](/usc/42/1320a–7a.md?p=i-1); and
    - (B) that, notwithstanding the Express Lane option under [subsection (e)(13)](#e-13), the [State](/usc/42/1396b.md?p=w-7-D) may enter into an [agreement](/usc/42/1320b–8.md?p=a-3-A) with the [State agency](/usc/42/1320a–7a.md?p=i-1) administering the [school](/usc/42/6372.md?p=1) lunch [program](/usc/42/274l–1.md?p=4) established under the Richard B. Russell National [School](/usc/42/6372.md?p=1) Lunch Act under which the [State](/usc/42/1396b.md?p=w-7-D) shall establish procedures to ensure that—
      - (i) a [child](/usc/42/416.md?p=e) receiving medical assistance under the [State](/usc/42/1396b.md?p=w-7-D) plan under this subchapter whose [family](/usc/42/290ff–4.md?p=d-2) [income](/usc/42/292s.md?p=c-4) does not exceed 133 percent of the [poverty line](/usc/42/1395w–114.md?p=a-3-C-ii) (as defined in [section 9902(2) of this title](/usc/42/9902.md?p=2), [including](/usc/42/1301.md?p=b) any revision required by such section), as determined without regard to any expense, block, or other [income](/usc/42/292s.md?p=c-4) disregard, applicable to a [family](/usc/42/290ff–4.md?p=d-2) of the size involved, may be certified as eligible for free lunches under the Richard B. Russell National [School](/usc/42/6372.md?p=1) Lunch Act and free breakfasts under the [Child](/usc/42/416.md?p=e) Nutrition Act of 1966 without further application; and
      - (ii) the [State agencies](/usc/42/1320a–7a.md?p=i-1) responsible for administering the [State](/usc/42/1396b.md?p=w-7-D) plan under this subchapter, and for carrying out the [school](/usc/42/6372.md?p=1) lunch [program](/usc/42/274l–1.md?p=4) established under the Richard B. Russell National [School](/usc/42/6372.md?p=1) Lunch Act ([42 U.S.C. 1751](/usc/42/1751.md) et seq.) or the [school](/usc/42/6372.md?p=1) breakfast [program](/usc/42/274l–1.md?p=4) established by section 4 of the [Child](/usc/42/416.md?p=e) Nutrition Act of 1966 ([42 U.S.C. 1773](/usc/42/1773.md)), cooperate in carrying out paragraphs (3)(F) and (15) of section 9(b) of that Act [[42 U.S.C. 1758(b)](/usc/42/1758.md?p=b)];
  - (8) provide that all individuals wishing to make application for medical assistance under the plan shall have opportunity to do so, and that such assistance shall be furnished with reasonable promptness to all [eligible individuals](/usc/42/239.md?p=a-6);
  - (9) provide—
    - (A) that the [State](/usc/42/1396b.md?p=w-7-D) health [agency](/usc/42/1397n–12.md?p=1), or other appropriate [State](/usc/42/1396b.md?p=w-7-D) medical [agency](/usc/42/1397n–12.md?p=1) (whichever is utilized by the [Secretary](/usc/42/1301.md?p=a-6) for the purpose specified in the first sentence of [section 1395aa(a) of this title](/usc/42/1395aa.md?p=a)), shall be responsible for establishing and maintaining health [standards](/usc/42/1320d.md?p=7) for private or public institutions in which [recipients](/usc/42/2996a.md?p=6) of medical assistance under the plan may receive care or services,
    - (B) for the establishment or designation of a [State authority](/usc/42/6903.md?p=32) or authorities which shall be responsible for establishing and maintaining [standards](/usc/42/1320d.md?p=7), other than those relating to health, for such institutions,
    - (C) that any [laboratory](/usc/42/300jj.md?p=10) services paid for under such plan must be provided by a [laboratory](/usc/42/300jj.md?p=10) which meets the applicable requirements of [section 1395x(e)(9) of this title](/usc/42/1395x.md?p=e-9) or paragraphs (16) and (17) of [section 1395x(s) of this title](/usc/42/1395x.md?p=s), or, in the case of a [laboratory](/usc/42/300jj.md?p=10) which is in a [rural health clinic](/usc/42/254c.md?p=b-2), of [section 1395x(aa)(2)(G) of this title](/usc/42/1395x.md?p=aa-2-G), and
    - (D) that the [State](/usc/42/1396b.md?p=w-7-D) maintain a consumer-oriented website providing useful information to consumers regarding all [skilled nursing facilities](/usc/42/1395x.md?p=j) and all [nursing facilities](/usc/42/1396r.md?p=a) in the [State](/usc/42/1396b.md?p=w-7-D), [including](/usc/42/1301.md?p=b) for each [facility](/usc/42/11049.md?p=4), Form 2567 [State](/usc/42/1396b.md?p=w-7-D) [inspection](/usc/42/4851b.md?p=12) reports (or a successor form), complaint investigation reports, the [facility](/usc/42/11049.md?p=4)’s plan of correction, and such other information that the [State](/usc/42/1396b.md?p=w-7-D) or the [Secretary](/usc/42/1301.md?p=a-6) considers useful in assisting the public to assess the quality of long term care options and the quality of care provided by individual [facilities](/usc/42/11049.md?p=4);
  - (10) provide—
    - (A) for making medical assistance available, [including](/usc/42/1301.md?p=b) at least the care and services listed in paragraphs (1) through (5), (13)(B), (17), (21), (28), (29), and (30) of [section 1396d(a) of this title](/usc/42/1396d.md?p=a), to—
      - (i) all individuals—
        - (I) who are receiving aid or assistance under any plan of the [State](/usc/42/1396b.md?p=w-7-D) approved under subchapter I, X, XIV, or XVI, or part A or part E of subchapter IV ([including](/usc/42/1301.md?p=b) individuals eligible under this subchapter by reason of section 602(a)(37),[^1] 606(h),[^1] or 673(b) of this title, or considered by the [State](/usc/42/1396b.md?p=w-7-D) to be receiving such aid as authorized under section 682(e)(6)[^1] of this title),
        - (II)
          - (aa) with respect to whom [supplemental security income benefits](/usc/42/1382i.md?p=b-2) are being paid under subchapter XVI (or were being paid as of the date of the enactment of [section 211(a)](/usc/42/211.md?p=a) of the Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (P.L. 104–193) and would continue to be paid but for the enactment of that section), (bb) who are [qualified severely impaired individuals](/usc/42/1396d.md?p=q) (as defined in [section 1396d(q) of this title](/usc/42/1396d.md?p=q)), or (cc) who are under 21 years of age and with respect to whom [supplemental security income benefits](/usc/42/1382i.md?p=b-2) would be paid under subchapter XVI if subparagraphs (A) and (B) of [section 1382(c)(7) of this title](/usc/42/1382.md?p=c-7) were applied without regard to the phrase “the first day of the month following”,
        - (III) who are qualified pregnant women or [children](/usc/42/256e.md?p=g-2) as defined in [section 1396d(n) of this title](/usc/42/1396d.md?p=n),
        - (IV) who are described in subparagraph [(A)](#l-1-A) or [(B)](#l-1-B) of subsection (l)(1) and whose [family](/usc/42/290ff–4.md?p=d-2) [income](/usc/42/292s.md?p=c-4) does not exceed the minimum [income](/usc/42/292s.md?p=c-4) level the [State](/usc/42/1396b.md?p=w-7-D) is required to establish under [subsection (l)(2)(A)](#l-2-A) for such a [family](/usc/42/290ff–4.md?p=d-2);[^2]
        - (V) who are qualified [family members](/usc/42/1320d–9.md?p=b-1) as defined in [section 1396d(m)(1) of this title](/usc/42/1396d.md?p=m-1),
        - (VI) who are described in [subparagraph (C)](#l-1-C) of subsection (l)(1) and whose [family](/usc/42/290ff–4.md?p=d-2) [income](/usc/42/292s.md?p=c-4) does not exceed the [income](/usc/42/292s.md?p=c-4) level the [State](/usc/42/1396b.md?p=w-7-D) is required to establish under [subsection (l)(2)(B)](#l-2-B) for such a [family](/usc/42/290ff–4.md?p=d-2),
        - (VII) who are described in [subparagraph (D)](#l-1-D) of subsection (l)(1) and whose [family](/usc/42/290ff–4.md?p=d-2) [income](/usc/42/292s.md?p=c-4) does not exceed the [income](/usc/42/292s.md?p=c-4) level the [State](/usc/42/1396b.md?p=w-7-D) is required to establish under [subsection (l)(2)(C)](#l-2-C) for such a [family](/usc/42/290ff–4.md?p=d-2);[^2]
        - (VIII) beginning January 1, 2014, who are under 65 years of age, not pregnant, not entitled to, or enrolled for, benefits under part A of subchapter XVIII, or enrolled for benefits under part B of subchapter XVIII, and are not described in a previous subclause of this clause, and whose [income](/usc/42/292s.md?p=c-4) (as determined under [subsection (e)(14)](#e-14)) does not exceed 133 percent of the [poverty line](/usc/42/1395w–114.md?p=a-3-C-ii) (as defined in [section 1397jj(c)(5) of this title](/usc/42/1397jj.md?p=c-5)) applicable to a [family](/usc/42/290ff–4.md?p=d-2) of the size involved, subject to subsections [(k)](#k) and [(xx)](#xx);[^2] or
        - (IX) who—
          - (aa) are under 26 years of age;
          - (bb) are not described in and are not enrolled under any of [subclauses (I) through (VII)](#a-10-A-I..a-10-A-VII) of this clause or are described in any of such subclauses but have [income](/usc/42/292s.md?p=c-4) that exceeds the level of [income](/usc/42/292s.md?p=c-4) applicable under the [State](/usc/42/1396b.md?p=w-7-D) plan for eligibility to enroll for medical assistance under such subclause;
          - (cc) were in foster care under the responsibility of a [State](/usc/42/1396b.md?p=w-7-D) on the date of attaining 18 years of age or such higher age as the [State](/usc/42/1396b.md?p=w-7-D) has elected under [section 675(8)(B)(iii) of this title](/usc/42/675.md?p=8-B-iii); and
          - (dd) were enrolled in a [State](/usc/42/1396b.md?p=w-7-D) plan under this subchapter or under a waiver of such a plan while in such foster care;[^3]
      - (ii) at the option of the [State](/usc/42/1396b.md?p=w-7-D), to[^4] any group or groups of individuals described in [section 1396d(a) of this title](/usc/42/1396d.md?p=a) (or, in the case of individuals described in [section 1396d(a)(i) of this title](/usc/42/1396d.md?p=a-i), to[^4] any reasonable [categories](/usc/42/1395w–4.md?p=j-1) of such individuals) who are not individuals described in clause (i) of this subparagraph but—
        - (I) who meet the [income](/usc/42/292s.md?p=c-4) and resources requirements of the appropriate [State](/usc/42/1396b.md?p=w-7-D) plan described in [clause (i)](#a-10-A-i) or the supplemental security [income](/usc/42/292s.md?p=c-4) [program](/usc/42/274l–1.md?p=4) (as the case may be),
        - (II) who would meet the [income](/usc/42/292s.md?p=c-4) and resources requirements of the appropriate [State](/usc/42/1396b.md?p=w-7-D) plan described in [clause (i)](#a-10-A-i) if their work-related [child](/usc/42/416.md?p=e) care costs were paid from their earnings rather than by a [State agency](/usc/42/1320a–7a.md?p=i-1) as a service expenditure,
        - (III) who would be eligible to receive aid under the appropriate [State](/usc/42/1396b.md?p=w-7-D) plan described in [clause (i)](#a-10-A-i) if coverage under such plan was as broad as allowed under Federal law,
        - (IV) with respect to whom there is being paid, or who are eligible, or would be eligible if they were not in a medical institution, to have paid with respect to them, aid or assistance under the appropriate [State](/usc/42/1396b.md?p=w-7-D) plan described in [clause (i)](#a-10-A-i), [supplemental security income benefits](/usc/42/1382i.md?p=b-2) under subchapter XVI, or a [State supplementary payment](/usc/42/1396d.md?p=j);[^2]
        - (V) who are in a medical institution for a period of not less than 30 consecutive days (with eligibility by reason of this subclause beginning on the first day of such period), who meet the resource requirements of the appropriate [State](/usc/42/1396b.md?p=w-7-D) plan described in [clause (i)](#a-10-A-i) or the supplemental security [income](/usc/42/292s.md?p=c-4) [program](/usc/42/274l–1.md?p=4), and whose [income](/usc/42/292s.md?p=c-4) does not exceed a separate [income](/usc/42/292s.md?p=c-4) [standard](/usc/42/1320d.md?p=7) established by the [State](/usc/42/1396b.md?p=w-7-D) which is consistent with the limit established under [section 1396b(f)(4)(C) of this title](/usc/42/1396b.md?p=f-4-C),
        - (VI) who would be eligible under the [State](/usc/42/1396b.md?p=w-7-D) plan under this subchapter if they were in a medical institution, with respect to whom there has been a determination that but for the provision of home or community-based services described in subsection (c), (d), or (e) of [section 1396n of this title](/usc/42/1396n.md) they would require the level of care provided in a [hospital](/usc/42/1395dd.md?p=e-5), [nursing facility](/usc/42/1396r.md?p=a) or [intermediate care facility for the mentally retarded](/usc/42/1396d.md?p=d) the cost of which could be reimbursed under the [State](/usc/42/1396b.md?p=w-7-D) plan, and who will receive home or community-based services pursuant to a waiver granted by the [Secretary](/usc/42/1301.md?p=a-6) under subsection (c), (d), or (e) of [section 1396n of this title](/usc/42/1396n.md),
        - (VII) who would be eligible under the [State](/usc/42/1396b.md?p=w-7-D) plan under this subchapter if they were in a medical institution, who are terminally ill, and who will receive [hospice care](/usc/42/1396d.md?p=o-1-A) pursuant to a voluntary election described in [section 1396d(o)](/usc/42/1396d.md?p=o) of this title;[^2]
        - (VIII) who is a [child](/usc/42/416.md?p=e) described in [section 1396d(a)(i) of this title](/usc/42/1396d.md?p=a-i)—
          - (aa) for whom there is in effect an adoption assistance [agreement](/usc/42/1320b–8.md?p=a-3-A) (other than an [agreement](/usc/42/1320b–8.md?p=a-3-A) under part E of subchapter IV) between the [State](/usc/42/1396b.md?p=w-7-D) and an adoptive [parent](#k-3) or [parents](#k-3),
          - (bb) who the [State agency](/usc/42/1320a–7a.md?p=i-1) responsible for adoption assistance has determined cannot be placed with adoptive [parents](#k-3) without medical assistance because such [child](/usc/42/416.md?p=e) has special needs for medical or rehabilitative care, and
          - (cc) who was eligible for medical assistance under the [State](/usc/42/1396b.md?p=w-7-D) plan prior to the adoption assistance [agreement](/usc/42/1320b–8.md?p=a-3-A) being entered into, or who would have been eligible for medical assistance at such time if the eligibility [standards](/usc/42/1320d.md?p=7) and methodologies of the [State](/usc/42/1396b.md?p=w-7-D)’s foster care [program](/usc/42/274l–1.md?p=4) under part E of subchapter IV were applied rather than the eligibility [standards](/usc/42/1320d.md?p=7) and methodologies of the [State](/usc/42/1396b.md?p=w-7-D)’s aid to [families](/usc/42/12704.md?p=11) with dependent [children](/usc/42/256e.md?p=g-2) [program](/usc/42/274l–1.md?p=4) under part A of subchapter IV;[^2]
        - (IX) who are described in [subsection (l)(1)](#l-1) and are not described in [clause (i)(IV)](#a-10-A-i-IV), [clause (i)(VI)](#a-10-A-i-VI), or [clause (i)(VII)](#a-10-A-i-VII);[^2]
        - (X) who are described in [subsection (m)(1)](#m-1);[^2]
        - (XI) who receive only an optional [State supplementary payment](/usc/42/1396d.md?p=j) based on need and paid on a regular basis, equal to the difference between the individual’s countable [income](/usc/42/292s.md?p=c-4) and the [income](/usc/42/292s.md?p=c-4) [standard](/usc/42/1320d.md?p=7) used to determine eligibility for such supplementary payment (with countable [income](/usc/42/292s.md?p=c-4) being the [income](/usc/42/292s.md?p=c-4) remaining after deductions as established by the [State](/usc/42/1396b.md?p=w-7-D) pursuant to [standards](/usc/42/1320d.md?p=7) that may be more restrictive than the [standards](/usc/42/1320d.md?p=7) for supplementary security [income](/usc/42/292s.md?p=c-4) benefits under subchapter XVI), which are available to all individuals in the [State](/usc/42/1396b.md?p=w-7-D) (but which may be based on different [income](/usc/42/292s.md?p=c-4) [standards](/usc/42/1320d.md?p=7) by political subdivision according to cost of living differences), and which are paid by a [State](/usc/42/1396b.md?p=w-7-D) that does not have an [agreement](/usc/42/1320b–8.md?p=a-3-A) with the [Commissioner](/usc/42/12302.md?p=1) of [Social](/usc/42/1397j.md?p=20) Security under section [1382e](/usc/42/1382e.md) or [1383c](/usc/42/1383c.md) of this title;[^2]
        - (XII) who are described in [subsection (z)(1)](#z-1) (relating to certain TB-infected individuals);[^2]
        - (XIII) who are in [families](/usc/42/12704.md?p=11) whose [income](/usc/42/292s.md?p=c-4) is less than 250 percent of the [income](/usc/42/292s.md?p=c-4) [official poverty line](/usc/42/254c–12.md?p=1) (as defined by the [Office](/usc/42/3058f.md?p=1) of Management and Budget, and revised annually in accordance with [section 9902(2) of this title](/usc/42/9902.md?p=2)) applicable to a [family](/usc/42/290ff–4.md?p=d-2) of the size involved, and who but for earnings in excess of the limit established under [section 1396d(q)(2)(B) of this title](/usc/42/1396d.md?p=q-2-B), would be considered to be receiving supplemental security [income](/usc/42/292s.md?p=c-4) (subject, notwithstanding [section 1396o](/usc/42/1396o.md) of this title, to payment of premiums or other [cost-sharing](/usc/42/18022.md?p=c-3-A) charges (set on a sliding scale based on [income](/usc/42/292s.md?p=c-4)) that the [State](/usc/42/1396b.md?p=w-7-D) may determine);[^2]
        - (XIV) who are optional targeted low-[income](/usc/42/292s.md?p=c-4) [children](/usc/42/256e.md?p=g-2) described in [section 1396d(u)(2)(B) of this title](/usc/42/1396d.md?p=u-2-B);[^2]
        - (XV) who, but for earnings in excess of the limit established under [section 1396d(q)(2)(B) of this title](/usc/42/1396d.md?p=q-2-B), would be considered to be receiving supplemental security [income](/usc/42/292s.md?p=c-4), who is at least 16 years of age, and whose assets, resources, and earned or unearned [income](/usc/42/292s.md?p=c-4) (or both) do not exceed such limitations (if any) as the [State](/usc/42/1396b.md?p=w-7-D) may establish, [including](/usc/42/1301.md?p=b) at least the group described in [section 1396d(a)(xviii) of this title](/usc/42/1396d.md?p=a-xviii);[^2]
        - (XVI) who are employed individuals with a medically improved disability described in [section 1396d(v)(1) of this title](/usc/42/1396d.md?p=v-1) and whose assets, resources, and earned or unearned [income](/usc/42/292s.md?p=c-4) (or both) do not exceed such limitations (if any) as the [State](/usc/42/1396b.md?p=w-7-D) may establish, [including](/usc/42/1301.md?p=b) at least the group described in [section 1396d(a)(xii) of this title](/usc/42/1396d.md?p=a-xii), but only if the [State](/usc/42/1396b.md?p=w-7-D) provides medical assistance to individuals described in [subclause (XV)](#a-10-A-ii-XV);[^2]
        - (XVII) who are [independent foster care adolescents](/usc/42/1396d.md?p=w-1) (as defined in [section 1396d(w)(1) of this title](/usc/42/1396d.md?p=w-1)), or who are within any reasonable [categories](/usc/42/1395w–4.md?p=j-1) of such adolescents specified by the [State](/usc/42/1396b.md?p=w-7-D);[^2]
        - (XVIII) who are described in [subsection (aa)](#aa) (relating to certain breast or cervical cancer patients);[^2]
        - (XIX) who are disabled [children](/usc/42/256e.md?p=g-2) described in [subsection (cc)(1)](#cc-1);[^2]
        - (XX) beginning January 1, 2014, who are under 65 years of age and are not described in or enrolled under a previous subclause of this clause, and whose [income](/usc/42/292s.md?p=c-4) (as determined under [subsection (e)(14)](#e-14)) exceeds 133 percent of the [poverty line](/usc/42/1395w–114.md?p=a-3-C-ii) (as defined in [section 1397jj(c)(5) of this title](/usc/42/1397jj.md?p=c-5)) applicable to a [family](/usc/42/290ff–4.md?p=d-2) of the size involved but does not exceed the highest [income](/usc/42/292s.md?p=c-4) eligibility level established under the [State](/usc/42/1396b.md?p=w-7-D) plan or under a waiver of the plan, subject to [subsection (hh)](#hh);[^2]
        - (XXI) who are described in [subsection (ii)](#ii) (relating to individuals who meet certain [income](/usc/42/292s.md?p=c-4) [standards](/usc/42/1320d.md?p=7));[^2]
        - (XXII) who are eligible for home and community-based services under needs-based criteria established under paragraph (1)(A) of [section 1396n(i) of this title](/usc/42/1396n.md?p=i), or who are eligible for home and community-based services under [paragraph (6)](/usc/42/1396n.md?p=i-6) of such section, and who will receive home and community-based services pursuant to a [State](/usc/42/1396b.md?p=w-7-D) plan amendment under such subsection;[^2] or
        - (XXIII) during any portion of the emergency period defined in paragraph (1)(B) of [section 1320b–5(g) of this title](/usc/42/1320b–5.md?p=g) beginning on or after March 18, 2020, who are [uninsured individuals](#ss) (as defined in [subsection (ss)](#ss));
    - (B) that the medical assistance made available to any individual described in [subparagraph (A)](#a-10-A)—
      - (i) shall not be less in amount, duration, or scope than the medical assistance made available to any other such individual, and
      - (ii) shall not be less in amount, duration, or scope than the medical assistance made available to individuals not described in [subparagraph (A)](#a-10-A);
    - (C) that if medical assistance is included for any group of individuals described in [section 1396d(a) of this title](/usc/42/1396d.md?p=a) who are not described in subparagraph [(A)](#a-10-A) or [(E)](#a-10-E), then—
      - (i) the plan must include a description of (I) the criteria for determining eligibility of individuals in the group for such medical assistance, (II) the amount, duration, and scope of medical assistance made available to individuals in the group, and (III) the [single](/usc/42/2304.md?p=m) [standard](/usc/42/1320d.md?p=7) to be employed in determining [income](/usc/42/292s.md?p=c-4) and resource eligibility for all such groups, and the methodology to be employed in determining such eligibility, which shall be no more restrictive than the methodology which would be employed under the supplemental security [income](/usc/42/292s.md?p=c-4) [program](/usc/42/274l–1.md?p=4) in the case of groups consisting of aged, blind, or disabled individuals in a [State](/usc/42/1396b.md?p=w-7-D) in which such [program](/usc/42/274l–1.md?p=4) is in effect, and which shall be no more restrictive than the methodology which would be employed under the appropriate [State](/usc/42/1396b.md?p=w-7-D) plan (described in [subparagraph (A)(i)](#a-10-A-i)) to which such group is most closely categorically related in the case of other groups;
      - (ii) the plan must make available medical assistance—
        - (I) to individuals under the age of 18 who (but for [income](/usc/42/292s.md?p=c-4) and resources) would be eligible for medical assistance as an individual described in [subparagraph (A)(i)](#a-10-A-i), and
        - (II) to pregnant women, during the course of their pregnancy, who (but for [income](/usc/42/292s.md?p=c-4) and resources) would be eligible for medical assistance as an individual described in [subparagraph (A)](#a-10-A);
      - (iii) such medical assistance must include (I) with respect to [children](/usc/42/256e.md?p=g-2) under 18 and individuals entitled to institutional services, ambulatory services, and (II) with respect to pregnant women, prenatal care and delivery services; and
      - (iv) if such medical assistance [includes](/usc/42/1301.md?p=b) services in institutions for mental diseases or in an [intermediate care facility for the mentally retarded](/usc/42/1396d.md?p=d) (or both) for any such group, it also must include for all groups covered at least the care and services listed in paragraphs (1) through (5), (13)(B), and (17) of [section 1396d(a) of this title](/usc/42/1396d.md?p=a) or the care and services listed in any 7 of the paragraphs numbered (1) through (24) of such section;
    - (D) for the inclusion of home health services for any individual who, under the [State](/usc/42/1396b.md?p=w-7-D) plan, is entitled to [nursing facility services](/usc/42/1396d.md?p=f);
    - (E)
      - (i) for making medical assistance available for [medicare cost-sharing](/usc/42/1396d.md?p=p-3) (as defined in [section 1396d(p)(3) of this title](/usc/42/1396d.md?p=p-3)) for [qualified medicare beneficiaries](/usc/42/1396d.md?p=p-1) described in [section 1396d(p)(1) of this title](/usc/42/1396d.md?p=p-1);
      - (ii) for making medical assistance available for payment of [medicare cost-sharing](/usc/42/1396d.md?p=p-3) described in [section 1396d(p)(3)(A)(i) of this title](/usc/42/1396d.md?p=p-3-A-i) for [qualified disabled and working individuals](/usc/42/1396d.md?p=s) described in [section 1396d(s) of this title](/usc/42/1396d.md?p=s);
      - (iii) for making medical assistance available for medicare cost sharing described in [section 1396d(p)(3)(A)(ii) of this title](/usc/42/1396d.md?p=p-3-A-ii) subject to [section 1396d(p)(4) of this title](/usc/42/1396d.md?p=p-4), for individuals who would be [qualified medicare beneficiaries](/usc/42/1396d.md?p=p-1) described in [section 1396d(p)(1) of this title](/usc/42/1396d.md?p=p-1) ([including](/usc/42/1301.md?p=b) such individuals enrolled under [section 1395o(b)](/usc/42/1395o.md?p=b) of this title) but for the fact that their [income](/usc/42/292s.md?p=c-4) exceeds the [income](/usc/42/292s.md?p=c-4) level established by the [State](/usc/42/1396b.md?p=w-7-D) under [section 1396d(p)(2) of this title](/usc/42/1396d.md?p=p-2) but is less than 110 percent in 1993 and 1994, and 120 percent in 1995 and years thereafter of the [official poverty line](/usc/42/254c–12.md?p=1) (referred to in such section) for a [family](/usc/42/290ff–4.md?p=d-2) of the size involved; and
      - (iv) subject to sections [1396u–3](/usc/42/1396u–3.md) and [1396d(p)(4)](/usc/42/1396d.md?p=p-4) of this title, for making medical assistance available for [medicare cost-sharing](/usc/42/1396d.md?p=p-3) described in [section 1396d(p)(3)(A)(ii) of this title](/usc/42/1396d.md?p=p-3-A-ii) for individuals who would be [qualified medicare beneficiaries](/usc/42/1396d.md?p=p-1) described in [section 1396d(p)(1) of this title](/usc/42/1396d.md?p=p-1) ([including](/usc/42/1301.md?p=b) such individuals enrolled under [section 1395o(b)](/usc/42/1395o.md?p=b) of this title) but for the fact that their [income](/usc/42/292s.md?p=c-4) exceeds the [income](/usc/42/292s.md?p=c-4) level established by the [State](/usc/42/1396b.md?p=w-7-D) under [section 1396d(p)(2) of this title](/usc/42/1396d.md?p=p-2) and is at least 120 percent, but less than 135 percent, of the [official poverty line](/usc/42/254c–12.md?p=1) (referred to in such section) for a [family](/usc/42/290ff–4.md?p=d-2) of the size involved and who are not otherwise eligible for medical assistance under the [State](/usc/42/1396b.md?p=w-7-D) plan;
    - (F) at the option of a [State](/usc/42/1396b.md?p=w-7-D), for making medical assistance available for [COBRA premiums](#u-2) (as defined in [subsection (u)(2)](#u-2)) for qualified COBRA continuation beneficiaries described in [subsection (u)(1)](#u-1); and
    - (G) that, in applying eligibility criteria of the supplemental security [income](/usc/42/292s.md?p=c-4) [program](/usc/42/274l–1.md?p=4) under subchapter XVI for purposes of determining eligibility for medical assistance under the [State](/usc/42/1396b.md?p=w-7-D) plan of an individual who is not receiving supplemental security [income](/usc/42/292s.md?p=c-4), the [State](/usc/42/1396b.md?p=w-7-D) will disregard the provisions of subsections (c) and (e) of [section 1382b of this title](/usc/42/1382b.md);

    except that (I) the making available of the services described in paragraph (4), (14), or (16) of [section 1396d(a) of this title](/usc/42/1396d.md?p=a) to individuals meeting the age requirements prescribed therein shall not, by reason of this [paragraph (10)](#a-10), require the making available of any such services, or the making available of such services of the same amount, duration, and scope, to individuals of any other ages, (II) the making available of supplementary medical insurance benefits under part B of subchapter XVIII to individuals eligible therefor (either pursuant to an [agreement](/usc/42/1320b–8.md?p=a-3-A) entered into under [section 1395v of this title](/usc/42/1395v.md) or by reason of the payment of premiums under such subchapter by the [State agency](/usc/42/1320a–7a.md?p=i-1) on behalf of such individuals), or provision for meeting part or all of the cost of deductibles, cost sharing, or similar charges under part B of subchapter XVIII for individuals eligible for benefits under such part, shall not, by reason of this [paragraph (10)](#a-10), require the making available of any such benefits, or the making available of services of the same amount, duration, and scope, to any other individuals, (III) the making available of medical assistance equal in amount, duration, and scope to the medical assistance made available to individuals described in [clause (A)](#a-10-A) to any classification of individuals approved by the [Secretary](/usc/42/1301.md?p=a-6) with respect to whom there is being paid, or who are eligible, or would be eligible if they were not in a medical institution, to have paid with respect to them, a [State supplementary payment](/usc/42/1396d.md?p=j) shall not, by reason of this [paragraph (10)](#a-10), require the making available of any such assistance, or the making available of such assistance of the same amount, duration, and scope, to any other individuals not described in clause [(A)](#a-10-A), (IV) the imposition of a deductible, cost sharing, or similar charge for any item or service furnished to an individual not eligible for the exemption under section [1396o(a)(2)](/usc/42/1396o.md?p=a-2) or [(b)(2)](/usc/42/1396o.md?p=b-2) of this title shall not require the imposition of a deductible, cost sharing, or similar charge for the same item or service furnished to an individual who is eligible for such exemption, (V) the making available to pregnant women covered under the plan of services relating to pregnancy ([including](/usc/42/1301.md?p=b) prenatal, delivery, and postpartum services) or to any other condition which may complicate pregnancy shall not, by reason of this [paragraph (10)](#a-10), require the making available of such services, or the making available of such services of the same amount, duration, and scope, to any other individuals, provided such services are made available (in the same amount, duration, and scope) to all pregnant women covered under the [State](/usc/42/1396b.md?p=w-7-D) plan, (VI) with respect to the making available of medical assistance for [hospice care](/usc/42/1396d.md?p=o-1-A) to terminally ill individuals who have made a voluntary election described in [section 1396d(o)](/usc/42/1396d.md?p=o) of this title to receive [hospice care](/usc/42/1396d.md?p=o-1-A) instead of medical assistance for certain other services, such assistance may not be made available in an amount, duration, or scope less than that provided under subchapter XVIII, and the making available of such assistance shall not, by reason of this [paragraph (10)](#a-10), require the making available of medical assistance for [hospice care](/usc/42/1396d.md?p=o-1-A) to other individuals or the making available of medical assistance for services waived by such terminally ill individuals, (VII) the medical assistance made available to an individual described in [subsection (l)(1)(A)](#l-1-A) who is eligible for medical assistance only because of subparagraph [(A)(i)(IV)](#a-10-A-i-IV) or [(A)(ii)(IX)](#a-10-A-ii-IX) shall be limited to medical assistance for services related to pregnancy ([including](/usc/42/1301.md?p=b) prenatal, delivery, postpartum, and [family](/usc/42/290ff–4.md?p=d-2) planning services), medical assistance for services related to other conditions which may complicate pregnancy, and medical assistance for vaccines described in [section 1396d(a)(4)(E) of this title](/usc/42/1396d.md) and the [administration](/usc/42/1301.md?p=a-10) of such vaccines during the period described in such section, (VIII), medical assistance for services related to other conditions which may complicate pregnancy, and medical assistance for vaccines described in [section 1396d(a)(4)(E) of this title](/usc/42/1396d.md) and the [administration](/usc/42/1301.md?p=a-10) of such vaccines during the period described in such section, (VIII) the medical assistance made available to a [qualified medicare beneficiary](/usc/42/1396d.md?p=p-1) described in [section 1396d(p)(1) of this title](/usc/42/1396d.md?p=p-1) who is only entitled to medical assistance because the individual is such a beneficiary shall be limited to medical assistance for [medicare cost-sharing](/usc/42/1396d.md?p=p-3) (described in [section 1396d(p)(3) of this title](/usc/42/1396d.md?p=p-3)), subject to the provisions of [subsection (n)](#n) and [section 1396o(b)](/usc/42/1396o.md?p=b) of this title, (IX) the making available of respiratory care services in accordance with [subsection (e)(9)](#e-9) shall not, by reason of this [paragraph (10)](#a-10), require the making available of such services, or the making available of such services of the same amount, duration, and scope, to any individuals not included under [subsection (e)(9)(A)](#e-9-A), provided such services are made available (in the same amount, duration, and scope) to all individuals described in such subsection, (X) if the plan provides for any fixed durational limit on medical assistance for inpatient [hospital](/usc/42/1395dd.md?p=e-5) services (whether or not such a limit varies by medical condition or diagnosis), the plan must establish exceptions to such a limit for medically necessary inpatient [hospital](/usc/42/1395dd.md?p=e-5) services furnished with respect to individuals under one year of age in a [hospital](/usc/42/1395dd.md?p=e-5) defined under the [State](/usc/42/1396b.md?p=w-7-D) plan, pursuant to [section 1396r–4(a)(1)(A) of this title](/usc/42/1396r–4.md?p=a-1-A), as a disproportionate share [hospital](/usc/42/1395dd.md?p=e-5) and [subparagraph (B)](#a-10-B) (relating to comparability) shall not be construed as requiring such an exception for other individuals, services, or [hospitals](/usc/42/1395dd.md?p=e-5), (XI) the making available of medical assistance to cover the costs of premiums, deductibles, coinsurance, and other [cost-sharing](/usc/42/18022.md?p=c-3-A) obligations for certain individuals for private health coverage as described in [section 1396e of this title](/usc/42/1396e.md) shall not, by reason of [paragraph (10)](#a-10), require the making available of any such benefits or the making available of services of the same amount, duration, and scope of such private coverage to any other individuals, (XII) the medical assistance made available to an individual described in [subsection (u)(1)](#u-1) who is eligible for medical assistance only because of [subparagraph (F)](#a-10-F) shall be limited to medical assistance for COBRA continuation premiums (as defined in [subsection (u)(2)](#u-2)), (XIII) the medical assistance made available to an individual described in [subsection (z)(1)](#z-1) who is eligible for medical assistance only because of [subparagraph (A)(ii)(XII)](#a-10-A-ii-XII) shall be limited to medical assistance for [TB-related services](#z-2) (described in [subsection (z)(2)](#z-2)) and medical assistance for vaccines described in [section 1396d(a)(4)(E) of this title](/usc/42/1396d.md) and the [administration](/usc/42/1301.md?p=a-10) of such vaccines during the period described in such section, (XIV) the medical assistance made available to an individual described in [subsection (aa)](#aa) who is eligible for medical assistance only because of subparagraph (A)(10)(ii)(XVIII) shall be limited to medical assistance provided during the period in which such an individual requires [treatment](/usc/42/11851.md?p=11) for breast or cervical cancer[^5] (XV) the medical assistance made available to an individual described in [subparagraph (A)(i)(VIII)](#a-10-A-i-VIII) shall be limited to medical assistance described in [subsection (k)(1)](#k-1) and medical assistance for vaccines described in [section 1396d(a)(4)(E) of this title](/usc/42/1396d.md) and the [administration](/usc/42/1301.md?p=a-10) of such vaccines during the period described in such section, (XVI) the medical assistance made available to an individual described in [subsection (ii)](#ii) shall be limited to [family](/usc/42/290ff–4.md?p=d-2) planning services and supplies described in [section 1396d(a)(4)(C) of this title](/usc/42/1396d.md) [including](/usc/42/1301.md?p=b) medical diagnosis and [treatment services](/usc/42/300x–34.md?p=7) that are provided pursuant to a [family](/usc/42/290ff–4.md?p=d-2) planning service in a [family](/usc/42/290ff–4.md?p=d-2) planning setting and medical assistance for vaccines described in [section 1396d(a)(4)(E) of this title](/usc/42/1396d.md) and the [administration](/usc/42/1301.md?p=a-10) of such vaccines during the period described in such section, (XVII) if an individual is described in [subclause (IX)](#a-10-A-i-IX) of subparagraph (A)(i) and is also described in [subclause (VIII)](#a-10-A-i-VIII) of that subparagraph, the medical assistance shall be made available to the individual through [subclause (IX)](#a-10-A-i-IX) instead of through subclause [(VIII)](#a-10-A-i-VIII), and (XVIII) the medical assistance made available to an [uninsured individual](#ss) (as defined in [subsection (ss)](#ss)) who is eligible for medical assistance only because of [subparagraph (A)(ii)(XXIII)](#a-10-A-ii-XXIII) shall be limited to medical assistance for any in vitro diagnostic product described in [section 1396d(a)(3)(B) of this title](/usc/42/1396d.md?p=a-3-B) that is administered during any portion of the emergency period described in such section beginning on or after March 18, 2020 (and the [administration](/usc/42/1301.md?p=a-10) of such product), any service described in [section 1396o(a)(2)(G)](/usc/42/1396o.md?p=a-2-G) of this title that is furnished during any such portion, any vaccine described in [section 1396d(a)(4)(E) of this title](/usc/42/1396d.md) (and the [administration](/usc/42/1301.md?p=a-10) of such vaccine) that is furnished during any such portion, and testing and [treatments](/usc/42/11851.md?p=11) for COVID–19, [including](/usc/42/1301.md?p=b) specialized equipment and therapies ([including](/usc/42/1301.md?p=b) preventive therapies), and, in the case of an individual who is diagnosed with or presumed to have COVID–19, during the period such individual has (or is presumed to have) COVID–19, the [treatment](/usc/42/11851.md?p=11) of a condition that may seriously complicate the [treatment](/usc/42/11851.md?p=11) of COVID–19, if otherwise covered under the [State](/usc/42/1396b.md?p=w-7-D) plan (or waiver of such plan), and (XIX) medical assistance shall be made available during the period described in [section 1396d(a)(4)(E) of this title](/usc/42/1396d.md) for vaccines described in such section and the [administration](/usc/42/1301.md?p=a-10) of such vaccines, for any individual who is eligible for and receiving medical assistance under the [State](/usc/42/1396b.md?p=w-7-D) plan or under a waiver of such plan (other than an individual who is eligible for medical assistance consisting only of payment of premiums pursuant to subparagraph [(E)](#a-10-E) or [(F)](#a-10-F) or [section 1396u–3 of this title](/usc/42/1396u–3.md)), notwithstanding any provision of this subchapter or waiver under [section 1315 of this title](/usc/42/1315.md) impacting such individual’s eligibility for medical assistance under such plan or waiver to coverage for a limited type of benefits and services that would not otherwise include coverage of a COVID–19 vaccine and its [administration](/usc/42/1301.md?p=a-10);

  - (11)
    - (A) provide for entering into cooperative arrangements with the [State agencies](/usc/42/1320a–7a.md?p=i-1) responsible for administering or supervising the [administration](/usc/42/1301.md?p=a-10) of health services and vocational rehabilitation services in the [State](/usc/42/1396b.md?p=w-7-D) looking toward maximum utilization of such services in the provision of medical assistance under the plan, (B) provide, to the extent prescribed by the [Secretary](/usc/42/1301.md?p=a-6), for entering into [agreements](/usc/42/1320b–8.md?p=a-3-A), with any [agency](/usc/42/1397n–12.md?p=1), institution, or organization receiving payments under (or through an allotment under) subchapter V, (i) providing for utilizing such [agency](/usc/42/1397n–12.md?p=1), institution, or organization in furnishing care and services which are available under such subchapter or allotment and which are included in the [State](/usc/42/1396b.md?p=w-7-D) plan approved under this section[^5] (ii) making such provision as may be appropriate for reimbursing such [agency](/usc/42/1397n–12.md?p=1), institution, or organization for the cost of any such care and services furnished any individual for which payment would otherwise be made to the [State](/usc/42/1396b.md?p=w-7-D) with respect to the individual under [section 1396b of this title](/usc/42/1396b.md), and (iii) providing for coordination of information and education on pediatric vaccinations and delivery of immunization services, and (C) provide for coordination of the operations under this subchapter, [including](/usc/42/1301.md?p=b) the provision of information and education on pediatric vaccinations and the delivery of immunization services, with the [State](/usc/42/1396b.md?p=w-7-D)’s operations under the special supplemental nutrition [program](/usc/42/274l–1.md?p=4) for women, infants, and [children](/usc/42/256e.md?p=g-2) under section 17 of the [Child](/usc/42/416.md?p=e) Nutrition Act of 1966 [[42 U.S.C. 1786](/usc/42/1786.md)];
  - (12) provide that, in determining whether an individual is blind, there shall be an examination by a [physician](/usc/42/1301.md?p=a-7) skilled in the diseases of the eye or by an optometrist, whichever the individual may select;
  - (13) provide—
    - (A) for a public process for determination of rates of payment under the plan for [hospital](/usc/42/1395dd.md?p=e-5) services, [nursing facility services](/usc/42/1396d.md?p=f), and services of intermediate care [facilities](/usc/42/11049.md?p=4) for the mentally retarded under which—
      - (i) proposed rates, the methodologies underlying the establishment of such rates, and justifications for the proposed rates are published,
      - (ii) providers, beneficiaries and their [representatives](/usc/42/3058f.md?p=5), and other concerned [State](/usc/42/1396b.md?p=w-7-D) residents are given a reasonable opportunity for review and comment on the proposed rates, methodologies, and justifications,
      - (iii) final rates, the methodologies underlying the establishment of such rates, and justifications for such final rates are published, and
      - (iv) in the case of [hospitals](/usc/42/1395dd.md?p=e-5), such rates take into account (in a manner consistent with [section 1396r–4 of this title](/usc/42/1396r–4.md)) the situation of [hospitals](/usc/42/1395dd.md?p=e-5) which serve a disproportionate number of low-[income](/usc/42/292s.md?p=c-4) patients with special needs;
    - (B) for payment for [hospice care](/usc/42/1396d.md?p=o-1-A) in amounts no lower than the amounts, using the same methodology, used under part A of subchapter XVIII and for payment of amounts under [section 1396d(o)(3)](/usc/42/1396d.md?p=o-3) of this title; except that in the case of [hospice care](/usc/42/1396d.md?p=o-1-A) which is furnished to an individual who is a resident of a [nursing facility](/usc/42/1396r.md?p=a) or [intermediate care facility for the mentally retarded](/usc/42/1396d.md?p=d), and who would be eligible under the plan for [nursing facility services](/usc/42/1396d.md?p=f) or services in an [intermediate care facility for the mentally retarded](/usc/42/1396d.md?p=d) if he had not elected to receive [hospice care](/usc/42/1396d.md?p=o-1-A), there shall be paid an additional amount, to take into account the room and [board](/usc/42/10261.md?p=2) furnished by the [facility](/usc/42/11049.md?p=4), equal to at least 95 percent of the rate that would have been paid by the [State](/usc/42/1396b.md?p=w-7-D) under the plan for [facility](/usc/42/11049.md?p=4) services in that [facility](/usc/42/11049.md?p=4) for that individual; and
    - (C) payment for [primary care services](#jj) (as defined in [subsection (jj)](#jj)) furnished in 2013 and 2014 by a [physician](/usc/42/1301.md?p=a-7) with a primary specialty designation of [family](/usc/42/290ff–4.md?p=d-2) medicine, general internal medicine, or pediatric medicine at a rate not less than 100 percent of the payment rate that applies to such services and [physician](/usc/42/1301.md?p=a-7) under part B of subchapter XVIII (or, if greater, the payment rate that would be applicable under such part if the conversion factor under [section 1395w–4(d) of this title](/usc/42/1395w–4.md?p=d) for the year involved were the conversion factor under such section for 2009);
  - (14) provide that enrollment fees, premiums, or similar charges, and deductions, cost sharing, or similar charges, may be imposed only as provided in [section 1396o](/usc/42/1396o.md) of this title and provide for imposition of such deductions, cost sharing, or similar charges for care, items, or services furnished to specified individuals (as defined in [paragraph (3)](/usc/42/1396o.md?p=k-3) of section 1396o(k) of this title) in accordance with [paragraph (2)](/usc/42/1396o.md) of such section;
  - (15) provide for payment for services described in clause (B) or (C) of [section 1396d(a)(2) of this title](/usc/42/1396d.md?p=a-2) under the plan in accordance with [subsection (bb)](#bb);
  - (16) provide for inclusion, to the extent required by regulations prescribed by the [Secretary](/usc/42/1301.md?p=a-6), of provisions (conforming to such regulations) with respect to the furnishing of medical assistance under the plan to individuals who are residents of the [State](/usc/42/1396b.md?p=w-7-D) but are absent therefrom;
  - (17) except as provided in subsections [(e)(14)](#e-14), [(e)(15)](#e-15), [(l)(3)](#l-3), [(m)(3)](#m-3), and [(m)(4)](#m-4), include reasonable [standards](/usc/42/1320d.md?p=7) (which shall be comparable for all groups and may, in accordance with [standards](/usc/42/1320d.md?p=7) prescribed by the [Secretary](/usc/42/1301.md?p=a-6), differ with respect to [income](/usc/42/292s.md?p=c-4) levels, but only in the case of applicants or [recipients](/usc/42/2996a.md?p=6) of assistance under the plan who are not receiving aid or assistance under any plan of the [State](/usc/42/1396b.md?p=w-7-D) approved under subchapter I, X, XIV, or XVI, or part A of subchapter IV, and with respect to whom [supplemental security income benefits](/usc/42/1382i.md?p=b-2) are not being paid under subchapter XVI, based on the variations between shelter costs in urban areas and in rural areas) for determining eligibility for and the extent of medical assistance under the plan which (A) are consistent with the objectives of this subchapter, (B) provide for taking into account only such [income](/usc/42/292s.md?p=c-4) and resources as are, as determined in accordance with [standards](/usc/42/1320d.md?p=7) prescribed by the [Secretary](/usc/42/1301.md?p=a-6), available to the applicant or [recipient](/usc/42/2996a.md?p=6) and (in the case of any applicant or [recipient](/usc/42/2996a.md?p=6) who would, except for [income](/usc/42/292s.md?p=c-4) and resources, be eligible for aid or assistance in the form of money payments under any plan of the [State](/usc/42/1396b.md?p=w-7-D) approved under subchapter I, X, XIV, or XVI, or part A of subchapter IV, or to have paid with respect to him [supplemental security income benefits](/usc/42/1382i.md?p=b-2) under subchapter XVI) as would not be disregarded (or set aside for future needs) in determining his eligibility for such aid, assistance, or benefits, (C) provide for reasonable evaluation of any such [income](/usc/42/292s.md?p=c-4) or resources, and (D) do not take into account the financial responsibility of any individual for any applicant or [recipient](/usc/42/2996a.md?p=6) of assistance under the plan unless such applicant or [recipient](/usc/42/2996a.md?p=6) is such individual’s spouse or such individual’s [child](/usc/42/416.md?p=e) who is under age 21 or (with respect to [States](/usc/42/1396b.md?p=w-7-D) eligible to participate in the [State](/usc/42/1396b.md?p=w-7-D) [program](/usc/42/274l–1.md?p=4) established under subchapter XVI), is blind or permanently and totally disabled, or is blind or disabled as defined in [section 1382c of this title](/usc/42/1382c.md) (with respect to [States](/usc/42/1396b.md?p=w-7-D) which are not eligible to participate in such [program](/usc/42/274l–1.md?p=4)); and provide for flexibility in the application of such [standards](/usc/42/1320d.md?p=7) with respect to [income](/usc/42/292s.md?p=c-4) by taking into account, except to the extent prescribed by the [Secretary](/usc/42/1301.md?p=a-6), the costs (whether in the form of insurance premiums, payments made to the [State](/usc/42/1396b.md?p=w-7-D) under [section 1396b(f)(2)(B) of this title](/usc/42/1396b.md), or otherwise and regardless of whether such costs are reimbursed under another public [program](/usc/42/274l–1.md?p=4) of the [State](/usc/42/1396b.md?p=w-7-D) or political subdivision thereof) incurred for [medical care](/usc/42/1301.md?p=a-7) or for any other type of remedial care recognized under [State](/usc/42/1396b.md?p=w-7-D) law;
  - (18) comply with the provisions of [section 1396p of this title](/usc/42/1396p.md) with respect to liens, adjustments and recoveries of medical assistance correctly paid,,[^6] transfers of assets, and [treatment](/usc/42/11851.md?p=11) of certain [trusts](/usc/42/12854.md?p=6);
  - (19) provide such safeguards as may be necessary to assure that eligibility for care and services under the plan will be determined, and such care and services will be provided, in a manner consistent with simplicity of [administration](/usc/42/1301.md?p=a-10) and the best interests of the [recipients](/usc/42/2996a.md?p=6);
  - (20) if the [State](/usc/42/1396b.md?p=w-7-D) plan [includes](/usc/42/1301.md?p=b) medical assistance in behalf of individuals 65 years of age or older who are patients in institutions for mental diseases—
    - (A) provide for having in effect such [agreements](/usc/42/1320b–8.md?p=a-3-A) or other arrangements with [State authorities](/usc/42/6903.md?p=32) concerned with mental diseases, and, where appropriate, with such institutions, as may be necessary for carrying out the [State](/usc/42/1396b.md?p=w-7-D) plan, [including](/usc/42/1301.md?p=b) arrangements for joint planning and for development of alternate methods of care, arrangements providing assurance of immediate readmittance to institutions where needed for individuals under alternate plans of care, and arrangements providing for access to patients and [facilities](/usc/42/11049.md?p=4), for furnishing information, and for making reports;
    - (B) provide for an individual plan for each such patient to assure that the institutional care provided to him is in his best interests, [including](/usc/42/1301.md?p=b), to that end, assurances that there will be initial and periodic review of his medical and other needs, that he will be given appropriate medical [treatment](/usc/42/11851.md?p=11) within the institution, and that there will be a periodic determination of his need for continued [treatment](/usc/42/11851.md?p=11) in the institution; and
    - (C) provide for the development of alternate plans of care, making maximum utilization of available resources, for [recipients](/usc/42/2996a.md?p=6) 65 years of age or older who would otherwise need care in such institutions, [including](/usc/42/1301.md?p=b) appropriate medical [treatment](/usc/42/11851.md?p=11) and other aid or assistance; for services referred to in section [303(a)(4)(A)(i)](/usc/42/303.md) and [(ii)](/usc/42/303.md)[^1] or section [1383(a)(4)(A)(i)](/usc/42/1383.md) and [(ii)](/usc/42/1383.md)[^1] of this title which are appropriate for such [recipients](/usc/42/2996a.md?p=6) and for such patients; and for methods of [administration](/usc/42/1301.md?p=a-10) necessary to assure that the responsibilities of the [State agency](/usc/42/1320a–7a.md?p=i-1) under the [State](/usc/42/1396b.md?p=w-7-D) plan with respect to such [recipients](/usc/42/2996a.md?p=6) and such patients will be effectively carried out;
  - (21) if the [State](/usc/42/1396b.md?p=w-7-D) plan [includes](/usc/42/1301.md?p=b) medical assistance in behalf of individuals 65 years of age or older who are patients in public institutions for mental diseases, show that the [State](/usc/42/1396b.md?p=w-7-D) is making satisfactory progress toward developing and implementing a comprehensive mental health [program](/usc/42/274l–1.md?p=4), [including](/usc/42/1301.md?p=b) provision for utilization of community mental health centers, [nursing facilities](/usc/42/1396r.md?p=a), and other alternatives to care in public institutions for mental diseases;
  - (22) include descriptions of (A) the kinds and numbers of professional medical personnel and supporting staff that will be used in the [administration](/usc/42/1301.md?p=a-10) of the plan and of the responsibilities they will have, (B) the [standards](/usc/42/1320d.md?p=7), for private or public institutions in which [recipients](/usc/42/2996a.md?p=6) of medical assistance under the plan may receive care or services, that will be utilized by the [State authority](/usc/42/6903.md?p=32) or authorities responsible for establishing and maintaining such [standards](/usc/42/1320d.md?p=7), (C) the cooperative arrangements with [State](/usc/42/1396b.md?p=w-7-D) health [agencies](/usc/42/1397n–12.md?p=1) and [State](/usc/42/1396b.md?p=w-7-D) vocational rehabilitation [agencies](/usc/42/1397n–12.md?p=1) entered into with a view to maximum utilization of and coordination of the provision of medical assistance with the services administered or supervised by such [agencies](/usc/42/1397n–12.md?p=1), and (D) other [standards](/usc/42/1320d.md?p=7) and methods that the [State](/usc/42/1396b.md?p=w-7-D) will use to assure that medical or remedial care and services provided to [recipients](/usc/42/2996a.md?p=6) of medical assistance are of high quality;
  - (23) provide that (A) any individual eligible for medical assistance ([including](/usc/42/1301.md?p=b) [drugs](/usc/42/282.md?p=j-1-A-vii)) may obtain such assistance from any institution, [agency](/usc/42/1397n–12.md?p=1), community pharmacy, or [person](/usc/42/1301.md?p=a-3), qualified to perform the service or services required ([including](/usc/42/1301.md?p=b) an organization which provides such services, or arranges for their availability, on a prepayment basis), who undertakes to provide him such services, and (B) an enrollment of an individual eligible for medical assistance in a primary care case-management system (described in [section 1396n(b)(1) of this title](/usc/42/1396n.md?p=b-1)), a [medicaid managed care organization](/usc/42/1396b.md?p=m-1-A), or a similar entity shall not restrict the choice of the qualified [person](/usc/42/1301.md?p=a-3) from whom the individual may receive services under [section 1396d(a)(4)(C) of this title](/usc/42/1396d.md), except as provided in [subsection (g)](#g), in [section 1396n of this title](/usc/42/1396n.md), and in [section 1396u–2(a) of this title](/usc/42/1396u–2.md?p=a), except that this paragraph shall not apply in the case of Puerto Rico, the Virgin Islands, and Guam, and except that nothing in this paragraph shall be construed as requiring a [State](/usc/42/1396b.md?p=w-7-D) to provide medical assistance for such services furnished by a [person](/usc/42/1301.md?p=a-3) or entity convicted of a felony under Federal or [State](/usc/42/1396b.md?p=w-7-D) law for an offense which the [State agency](/usc/42/1320a–7a.md?p=i-1) determines is inconsistent with the best interests of beneficiaries under the [State](/usc/42/1396b.md?p=w-7-D) plan or by a provider or [supplier](/usc/42/1395cc–4.md?p=a-2-I) to which a moratorium under [subsection (kk)(4)](#kk-4) is applied during the period of such moratorium;
  - (24) effective July 1, 1969, provide for consultative services by health [agencies](/usc/42/1397n–12.md?p=1) and other appropriate [agencies](/usc/42/1397n–12.md?p=1) of the [State](/usc/42/1396b.md?p=w-7-D) to [hospitals](/usc/42/1395dd.md?p=e-5), [nursing facilities](/usc/42/1396r.md?p=a), home health [agencies](/usc/42/1397n–12.md?p=1), clinics, [laboratories](/usc/42/300jj.md?p=10), and such other institutions as the [Secretary](/usc/42/1301.md?p=a-6) may specify in order to assist them (A) to qualify for payments under this chapter, (B) to establish and maintain such fiscal records as may be necessary for the proper and efficient [administration](/usc/42/1301.md?p=a-10) of this chapter, and (C) to provide information needed to determine payments due under this chapter on account of care and services furnished to individuals;
  - (25) provide—
    - (A) that the [State](/usc/42/1396b.md?p=w-7-D) or local [agency](/usc/42/1397n–12.md?p=1) administering such plan will take all reasonable measures to ascertain the legal liability of third parties ([including](/usc/42/1301.md?p=b) health insurers, self-insured plans, [group health plans](/usc/42/1320d–9.md?p=b-2) (as defined in section 607(1) of the [Employee](/usc/42/1320a–7h.md?p=e-7) Retirement [Income](/usc/42/292s.md?p=c-4) Security Act of 1974 [[29 U.S.C. 1167(1)](/usc/29/1167.md?p=1)]), service benefit plans, managed care organizations, pharmacy benefit managers, or other parties that are, by statute, contract, or [agreement](/usc/42/1320b–8.md?p=a-3-A), legally responsible for payment of a [claim](/usc/42/1320a–7a.md?p=i-2) for a health care item or service) to pay for care and services available under the plan, [including](/usc/42/1301.md?p=b)—
      - (i) the collection of sufficient information (as specified by the [Secretary](/usc/42/1301.md?p=a-6) in regulations) to enable the [State](/usc/42/1396b.md?p=w-7-D) to pursue [claims](/usc/42/1320a–7a.md?p=i-2) against such third parties, with such information being collected at the time of any determination or redetermination of eligibility for medical assistance, and
      - (ii) the submission to the [Secretary](/usc/42/1301.md?p=a-6) of a plan (subject to approval by the [Secretary](/usc/42/1301.md?p=a-6)) for pursuing [claims](/usc/42/1320a–7a.md?p=i-2) against such third parties, which plan shall be integrated with, and be monitored as a part of the [Secretary](/usc/42/1301.md?p=a-6)’s review of, the [State](/usc/42/1396b.md?p=w-7-D)’s mechanized [claims](/usc/42/1320a–7a.md?p=i-2) processing and information retrieval systems required under [section 1396b(r) of this title](/usc/42/1396b.md?p=r);
    - (B) that in any case where such a legal liability is found to exist after medical assistance has been made available on behalf of the individual and where the amount of reimbursement the [State](/usc/42/1396b.md?p=w-7-D) can reasonably expect to recover exceeds the costs of such recovery, the [State](/usc/42/1396b.md?p=w-7-D) or local [agency](/usc/42/1397n–12.md?p=1) will seek reimbursement for such assistance to the extent of such legal liability;
    - (C) that in the case of an individual who is entitled to medical assistance under the [State](/usc/42/1396b.md?p=w-7-D) plan with respect to a service for which a third party is liable for payment, the [person](/usc/42/1301.md?p=a-3) furnishing the service may not seek to collect from the individual (or any financially responsible relative or [representative](/usc/42/3058f.md?p=5) of that individual) payment of an amount for that service (i) if the total of the amount of the liabilities of third parties for that service is at least equal to the amount payable for that service under the plan (disregarding [section 1396o](/usc/42/1396o.md) of this title), or (ii) in an amount which exceeds the lesser of (I) the amount which may be collected under [section 1396o](/usc/42/1396o.md) of this title, or (II) the amount by which the amount payable for that service under the plan (disregarding [section 1396o](/usc/42/1396o.md) of this title) exceeds the total of the amount of the liabilities of third parties for that service;
    - (D) that a [person](/usc/42/1301.md?p=a-3) who furnishes services and is participating under the plan may not refuse to furnish services to an individual (who is entitled to have payment made under the plan for the services the [person](/usc/42/1301.md?p=a-3) furnishes) because of a third party’s potential liability for payment for the service;
    - (E) that in the case of preventive pediatric care ([including](/usc/42/1301.md?p=b) early and periodic screening and diagnosis services under [section 1396d(a)(4)(B) of this title](/usc/42/1396d.md)) covered under the [State](/usc/42/1396b.md?p=w-7-D) plan, the [State](/usc/42/1396b.md?p=w-7-D) shall—
      - (i) make payment for such service in accordance with the usual payment schedule under such plan for such services without regard to the liability of a third party for payment for such services, except that the [State](/usc/42/1396b.md?p=w-7-D) may, if the [State](/usc/42/1396b.md?p=w-7-D) determines doing so is [cost-effective](/usc/42/1396e.md?p=e-2) and will not adversely affect access to care, only make such payment if a third party so liable has not made payment within 90 days after the date the provider of such services has initially submitted a [claim](/usc/42/1320a–7a.md?p=i-2) to such third party for payment for such services; and
      - (ii) seek reimbursement from such third party in accordance with [subparagraph (B)](#a-25-B);
    - (F) that in the case of any services covered under such plan which are provided to an individual on whose behalf [child](/usc/42/416.md?p=e) support enforcement is being carried out by the [State agency](/usc/42/1320a–7a.md?p=i-1) under part D of subchapter IV of this chapter, the [State](/usc/42/1396b.md?p=w-7-D) shall—
      - (i) make payment for such service in accordance with the usual payment schedule under such plan for such services without regard to any third-party liability for payment for such services, if such third-party liability is derived (through insurance or otherwise) from the [parent](#k-3) whose obligation to pay support is being enforced by such [agency](/usc/42/1397n–12.md?p=1), if payment has not been made by such third party within 100 days after the date the provider of such services has initially submitted a [claim](/usc/42/1320a–7a.md?p=i-2) to such third party for payment for such services, except that the [State](/usc/42/1396b.md?p=w-7-D) may make such payment within 30 days after such date if the [State](/usc/42/1396b.md?p=w-7-D) determines doing so is [cost-effective](/usc/42/1396e.md?p=e-2) and necessary to ensure access to care.;[^6] and
      - (ii) seek reimbursement from such third party in accordance with [subparagraph (B)](#a-25-B);
    - (G) that the [State](/usc/42/1396b.md?p=w-7-D) prohibits any health insurer ([including](/usc/42/1301.md?p=b) a [group health plan](/usc/42/1320d–9.md?p=b-2), as defined in section 607(1) of the [Employee](/usc/42/1320a–7h.md?p=e-7) Retirement [Income](/usc/42/292s.md?p=c-4) Security Act of 1974 [[29 U.S.C. 1167(1)](/usc/29/1167.md?p=1)], a self-insured plan, a service benefit plan, a managed care organization, a pharmacy benefit manager, or other party that is, by statute, contract, or [agreement](/usc/42/1320b–8.md?p=a-3-A), legally responsible for payment of a [claim](/usc/42/1320a–7a.md?p=i-2) for a health care item or service), in enrolling an individual or in making any payments for benefits to the individual or on the individual’s behalf, from taking into account that the individual is eligible for or is provided medical assistance under a plan under this subchapter for such [State](/usc/42/1396b.md?p=w-7-D), or any other [State](/usc/42/1396b.md?p=w-7-D);
    - (H) that to the extent that payment has been made under the [State](/usc/42/1396b.md?p=w-7-D) plan for medical assistance in any case where a third party has a legal liability to make payment for such assistance, the [State](/usc/42/1396b.md?p=w-7-D) has in effect laws under which, to the extent that payment has been made under the [State](/usc/42/1396b.md?p=w-7-D) plan for medical assistance for health care items or services furnished to an individual, the [State](/usc/42/1396b.md?p=w-7-D) is considered to have acquired the rights of such individual to payment by any other party for such health care items or services; and
    - (I) that the [State](/usc/42/1396b.md?p=w-7-D) shall provide assurances satisfactory to the [Secretary](/usc/42/1301.md?p=a-6) that the [State](/usc/42/1396b.md?p=w-7-D) has in effect laws requiring health insurers, [including](/usc/42/1301.md?p=b) self-insured plans, [group health plans](/usc/42/1320d–9.md?p=b-2) (as defined in section 607(1) of the [Employee](/usc/42/1320a–7h.md?p=e-7) Retirement [Income](/usc/42/292s.md?p=c-4) Security Act of 1974 [[29 U.S.C. 1167(1)](/usc/29/1167.md?p=1)]), service benefit plans, managed care organizations, pharmacy benefit managers, or other parties that are, by statute, contract, or [agreement](/usc/42/1320b–8.md?p=a-3-A), legally responsible for payment of a [claim](/usc/42/1320a–7a.md?p=i-2) for a health care item or service, as a condition of doing business in the [State](/usc/42/1396b.md?p=w-7-D), to—
      - (i) provide, with respect to individuals who are eligible (and, at [State](/usc/42/1396b.md?p=w-7-D) option, individuals who apply or whose eligibility for medical assistance is being evaluated in accordance with [section 1396a(e)(13)(D) of this title](#e-13-D)) for, or are provided, medical assistance under a [State](/usc/42/1396b.md?p=w-7-D) plan (or under a waiver of the plan) under this subchapter and [child health assistance](/usc/42/1397ll.md?p=d-1) under subchapter XXI, upon the request of the [State](/usc/42/1396b.md?p=w-7-D), information to determine during what period the individual or their spouses or their dependents may be (or may have been) covered by a health insurer and the nature of the coverage that is or was provided by the health insurer ([including](/usc/42/1301.md?p=b) the name, address, and identifying number of the plan) in a manner prescribed by the [Secretary](/usc/42/1301.md?p=a-6);
      - (ii)
        - (I) accept the [State](/usc/42/1396b.md?p=w-7-D)’s right of recovery and the assignment to the [State](/usc/42/1396b.md?p=w-7-D) of any right of an individual or other entity to payment from the party for an item or service for which payment has been made under the [State](/usc/42/1396b.md?p=w-7-D) plan (or under a waiver of such plan); and
        - (II) in the case of a responsible third party (other than the original medicare fee-for-service [program](/usc/42/274l–1.md?p=4) under parts A and B of subchapter XVIII, a Medicare Advantage plan offered by a Medicare Advantage organization under part C of such subchapter, a reasonable cost reimbursement plan under [section 1395mm of this title](/usc/42/1395mm.md), a health care prepayment plan under [section 1395l](/usc/42/1395l.md) of this title, or a [prescription drug plan](/usc/42/1395w–154.md?p=d-2) offered by a PDP sponsor under part D of such subchapter) that requires prior [authorization](/usc/42/4370m.md?p=3) for an item or service furnished to an individual eligible to receive medical assistance under this subchapter, accept [authorization](/usc/42/4370m.md?p=3) provided by the [State](/usc/42/1396b.md?p=w-7-D) that the item or service is covered under the [State](/usc/42/1396b.md?p=w-7-D) plan (or waiver of such plan) for such individual, as if such [authorization](/usc/42/4370m.md?p=3) were the prior [authorization](/usc/42/4370m.md?p=3) made by the third party for such item or service;
      - (iii) not later than 60 days after receiving any inquiry by the [State](/usc/42/1396b.md?p=w-7-D) regarding a [claim](/usc/42/1320a–7a.md?p=i-2) for payment for any health care item or service that is submitted not later than 3 years after the date of the provision of such health care item or service, respond to such inquiry; and
      - (iv) agree not to deny a [claim](/usc/42/1320a–7a.md?p=i-2) submitted by the [State](/usc/42/1396b.md?p=w-7-D) solely on the basis of the date of submission of the [claim](/usc/42/1320a–7a.md?p=i-2), the type or format of the [claim](/usc/42/1320a–7a.md?p=i-2) form, a failure to present proper documentation at the point-of-sale that is the basis of the [claim](/usc/42/1320a–7a.md?p=i-2), or in the case of a responsible third party (other than the original medicare fee-for-service [program](/usc/42/274l–1.md?p=4) under parts A and B of subchapter XVIII, a Medicare Advantage plan offered by a Medicare Advantage organization under part C of such subchapter, a reasonable cost reimbursement plan under [section 1395mm of this title](/usc/42/1395mm.md), a health care prepayment plan under [section 1395l](/usc/42/1395l.md) of this title, or a [prescription drug plan](/usc/42/1395w–154.md?p=d-2) offered by a PDP sponsor under part D of such subchapter) a failure to obtain a prior [authorization](/usc/42/4370m.md?p=3) for the item or service for which the [claim](/usc/42/1320a–7a.md?p=i-2) is being submitted, if—
        - (I) the [claim](/usc/42/1320a–7a.md?p=i-2) is submitted by the [State](/usc/42/1396b.md?p=w-7-D) within the 3-year period beginning on the date on which the item or service was furnished; and
        - (II) any action by the [State](/usc/42/1396b.md?p=w-7-D) to enforce its rights with respect to such [claim](/usc/42/1320a–7a.md?p=i-2) is commenced within 6 years of the [State](/usc/42/1396b.md?p=w-7-D)’s submission of such [claim](/usc/42/1320a–7a.md?p=i-2);
  - (26) if the [State](/usc/42/1396b.md?p=w-7-D) plan [includes](/usc/42/1301.md?p=b) medical assistance for inpatient mental [hospital](/usc/42/1395dd.md?p=e-5) services, provide, with respect to each patient receiving such services, for a regular [program](/usc/42/274l–1.md?p=4) of medical review ([including](/usc/42/1301.md?p=b) medical evaluation) of his need for such services, and for a written plan of care;
  - (27) provide for [agreements](/usc/42/1320b–8.md?p=a-3-A) with every [person](/usc/42/1301.md?p=a-3) or institution providing services under the [State](/usc/42/1396b.md?p=w-7-D) plan under which such [person](/usc/42/1301.md?p=a-3) or institution agrees (A) to keep such records as are necessary fully to disclose the extent of the services provided to individuals receiving assistance under the [State](/usc/42/1396b.md?p=w-7-D) plan, and (B) to furnish the [State agency](/usc/42/1320a–7a.md?p=i-1) or the [Secretary](/usc/42/1301.md?p=a-6) with such information, regarding any payments claimed by such [person](/usc/42/1301.md?p=a-3) or institution for providing services under the [State](/usc/42/1396b.md?p=w-7-D) plan, as the [State agency](/usc/42/1320a–7a.md?p=i-1) or the [Secretary](/usc/42/1301.md?p=a-6) may from time to time request;
  - (28) provide—
    - (A) that any [nursing facility](/usc/42/1396r.md?p=a) receiving payments under such plan must satisfy all the requirements of subsections (b) through (d) of [section 1396r of this title](/usc/42/1396r.md) as they apply to such [facilities](/usc/42/11049.md?p=4);
    - (B) for [including](/usc/42/1301.md?p=b) in “[nursing facility services](/usc/42/1396d.md?p=f)” at least the items and services specified (or deemed to be specified) by the [Secretary](/usc/42/1301.md?p=a-6) under [section 1396r(f)(7) of this title](/usc/42/1396r.md?p=f-7) and making available upon request a description of the items and services so included;
    - (C) for procedures to make available to the public the data and methodology used in establishing payment rates for [nursing facilities](/usc/42/1396r.md?p=a) under this subchapter; and
    - (D) for compliance (by the date specified in the respective sections) with the requirements of—
      - (i) [section 1396r(e) of this title](/usc/42/1396r.md?p=e);
      - (ii) [section 1396r(g) of this title](/usc/42/1396r.md?p=g) (relating to responsibility for survey and certification of [nursing facilities](/usc/42/1396r.md?p=a)); and
      - (iii) sections [1396r(h)(2)(B)](/usc/42/1396r.md?p=h-2-B) and [1396r(h)(2)(D)](/usc/42/1396r.md?p=h-2-D) of this title (relating to establishment and application of remedies);
  - (29) include a [State](/usc/42/1396b.md?p=w-7-D) [program](/usc/42/274l–1.md?p=4) which meets the requirements set forth in [section 1396g of this title](/usc/42/1396g.md), for the licensing of [administrators](/usc/42/4005.md?p=1) of [nursing homes](/usc/42/1396g.md?p=e-1);
  - (30)
    - (A) provide such methods and procedures relating to the utilization of, and the payment for, care and services available under the plan ([including](/usc/42/1301.md?p=b) but not limited to utilization review plans as provided for in [section 1396b(i)(4) of this title](/usc/42/1396b.md?p=i-4)) as may be necessary to safeguard against unnecessary utilization of such care and services and to assure that payments are consistent with efficiency, economy, and quality of care and are sufficient to enlist enough providers so that care and services are available under the plan at least to the extent that such care and services are available to the general population in the [geographic area](/usc/42/11360.md?p=9); and
    - (B) provide, under the [program](/usc/42/274l–1.md?p=4) described in [subparagraph (A)](#a-30-A), that—
      - (i) each admission to a [hospital](/usc/42/1395dd.md?p=e-5), [intermediate care facility for the mentally retarded](/usc/42/1396d.md?p=d), or [hospital](/usc/42/1395dd.md?p=e-5) for mental diseases is reviewed or screened in accordance with criteria established by medical and other professional personnel who are not themselves directly responsible for the care of the patient involved, and who do not have a significant financial interest in any such institution and are not, except in the case of a [hospital](/usc/42/1395dd.md?p=e-5), employed by the institution providing the care involved, and
      - (ii) the information developed from such review or screening, along with the data obtained from prior reviews of the necessity for admission and continued stay of patients by such professional personnel, shall be used as the basis for establishing the size and composition of the sample of admissions to be subject to review and evaluation by such personnel, and any such sample may be of any size up to 100 percent of all admissions and must be of sufficient size to serve the purpose of (I) identifying the patterns of care being provided and the changes occurring over time in such patterns so that the need for [modification](/usc/42/7501.md?p=4) may be ascertained, and (II) subjecting admissions to early or more extensive review where information indicates that such consideration is warranted to a [hospital](/usc/42/1395dd.md?p=e-5), [intermediate care facility for the mentally retarded](/usc/42/1396d.md?p=d), or [hospital](/usc/42/1395dd.md?p=e-5) for mental diseases;
  - (31) with respect to services in an [intermediate care facility for the mentally retarded](/usc/42/1396d.md?p=d) (where the [State](/usc/42/1396b.md?p=w-7-D) plan [includes](/usc/42/1301.md?p=b) medical assistance for such services) provide, with respect to each patient receiving such services, for a written plan of care, prior to admission to or [authorization](/usc/42/4370m.md?p=3) of benefits in such [facility](/usc/42/11049.md?p=4), in accordance with regulations of the [Secretary](/usc/42/1301.md?p=a-6), and for a regular [program](/usc/42/274l–1.md?p=4) of independent professional review ([including](/usc/42/1301.md?p=b) medical evaluation) which shall periodically review his need for such services;
  - (32) provide that no payment under the plan for any care or service provided to an individual shall be made to anyone other than such individual or the [person](/usc/42/1301.md?p=a-3) or institution providing such care or service, under an assignment or power of attorney or otherwise; except that—
    - (A) in the case of any care or service provided by a [physician](/usc/42/1301.md?p=a-7), dentist, or other individual [practitioner](/usc/42/1395a.md?p=b-6-C), such payment may be made (i) to the employer of such [physician](/usc/42/1301.md?p=a-7), dentist, or other [practitioner](/usc/42/1395a.md?p=b-6-C) if such [physician](/usc/42/1301.md?p=a-7), dentist, or [practitioner](/usc/42/1395a.md?p=b-6-C) is required as a condition of his employment to turn over his fee for such care or service to his employer, or (ii) (where the care or service was provided in a [hospital](/usc/42/1395dd.md?p=e-5), clinic, or other [facility](/usc/42/11049.md?p=4)) to the [facility](/usc/42/11049.md?p=4) in which the care or service was provided if there is a contractual arrangement between such [physician](/usc/42/1301.md?p=a-7), dentist, or [practitioner](/usc/42/1395a.md?p=b-6-C) and such [facility](/usc/42/11049.md?p=4) under which such [facility](/usc/42/11049.md?p=4) submits the bill for such care or service;
    - (B) nothing in this paragraph shall be construed (i) to prevent the making of such a payment in accordance with an assignment from the [person](/usc/42/1301.md?p=a-3) or institution providing the care or service involved if such assignment is made to a governmental [agency](/usc/42/1397n–12.md?p=1) or entity or is established by or pursuant to the order of a court of competent jurisdiction, or (ii) to preclude an agent of such [person](/usc/42/1301.md?p=a-3) or institution from receiving any such payment if (but only if) such agent does so pursuant to an [agency](/usc/42/1397n–12.md?p=1) [agreement](/usc/42/1320b–8.md?p=a-3-A) under which the compensation to be paid to the agent for his services for or in connection with the billing or collection of payments due such [person](/usc/42/1301.md?p=a-3) or institution under the plan is unrelated (directly or indirectly) to the amount of such payments or the billings therefor, and is not dependent upon the actual collection of any such payment;
    - (C) in the case of services furnished (during a period that does not exceed 14 continuous days in the case of an informal reciprocal arrangement or 90 continuous days (or such longer period as the [Secretary](/usc/42/1301.md?p=a-6) may provide) in the case of an arrangement involving per diem or other fee-for-time compensation) by, or incident to the services of, one [physician](/usc/42/1301.md?p=a-7) to the patients of another [physician](/usc/42/1301.md?p=a-7) who submits the [claim](/usc/42/1320a–7a.md?p=i-2) for such services, payment shall be made to the [physician](/usc/42/1301.md?p=a-7) submitting the [claim](/usc/42/1320a–7a.md?p=i-2) (as if the services were furnished by, or incident to, the [physician](/usc/42/1301.md?p=a-7)’s services), but only if the [claim](/usc/42/1320a–7a.md?p=i-2) identifies (in a manner specified by the [Secretary](/usc/42/1301.md?p=a-6)) the [physician](/usc/42/1301.md?p=a-7) who furnished the services; and
    - (D) in the case of payment for a childhood vaccine administered before October 1, 1994, to individuals entitled to medical assistance under the [State](/usc/42/1396b.md?p=w-7-D) plan, the [State](/usc/42/1396b.md?p=w-7-D) plan may make payment directly to the [manufacturer](/usc/42/300aa–33.md?p=3) of the vaccine under a voluntary replacement [program](/usc/42/274l–1.md?p=4) agreed to by the [State](/usc/42/1396b.md?p=w-7-D) pursuant to which the [manufacturer](/usc/42/300aa–33.md?p=3) (i) supplies doses of the vaccine to providers administering the vaccine, (ii) periodically replaces the supply of the vaccine, and (iii) charges the [State](/usc/42/1396b.md?p=w-7-D) the [manufacturer](/usc/42/300aa–33.md?p=3)’s price to the Centers for Disease Control and Prevention for the vaccine so administered (which price [includes](/usc/42/1301.md?p=b) a reasonable amount to cover shipping and the handling of returns);
  - (33) provide—
    - (A) that the [State](/usc/42/1396b.md?p=w-7-D) health [agency](/usc/42/1397n–12.md?p=1), or other appropriate [State](/usc/42/1396b.md?p=w-7-D) medical [agency](/usc/42/1397n–12.md?p=1), shall be responsible for establishing a plan, consistent with regulations prescribed by the [Secretary](/usc/42/1301.md?p=a-6), for the review by appropriate professional health personnel of the appropriateness and quality of care and services furnished to [recipients](/usc/42/2996a.md?p=6) of medical assistance under the plan in order to provide guidance with respect thereto in the [administration](/usc/42/1301.md?p=a-10) of the plan to the [State agency](/usc/42/1320a–7a.md?p=i-1) established or designated pursuant to [paragraph (5)](#a-5) and, where applicable, to the [State agency](/usc/42/1320a–7a.md?p=i-1) described in the second sentence of this subsection; and
    - (B) that, except as provided in [section 1396r(g) of this title](/usc/42/1396r.md?p=g), the [State](/usc/42/1396b.md?p=w-7-D) or local [agency](/usc/42/1397n–12.md?p=1) utilized by the [Secretary](/usc/42/1301.md?p=a-6) for the purpose specified in the first sentence of [section 1395aa(a) of this title](/usc/42/1395aa.md?p=a), or, if such [agency](/usc/42/1397n–12.md?p=1) is not the [State agency](/usc/42/1320a–7a.md?p=i-1) which is responsible for licensing health institutions, the [State agency](/usc/42/1320a–7a.md?p=i-1) responsible for such licensing, will perform for the [State agency](/usc/42/1320a–7a.md?p=i-1) administering or supervising the [administration](/usc/42/1301.md?p=a-10) of the plan approved under this subchapter the function of determining whether institutions and [agencies](/usc/42/1397n–12.md?p=1) meet the requirements for participation in the [program](/usc/42/274l–1.md?p=4) under such plan, except that, if the [Secretary](/usc/42/1301.md?p=a-6) has [cause](/usc/42/9908.md?p=c-2) to question the adequacy of such determinations, the [Secretary](/usc/42/1301.md?p=a-6) is authorized to validate [State](/usc/42/1396b.md?p=w-7-D) determinations and, on that basis, make independent and binding determinations concerning the extent to which individual institutions and [agencies](/usc/42/1397n–12.md?p=1) meet the requirements for participation;
  - (34) provide that in the case of any individual who has been determined to be eligible for medical assistance under the plan, such assistance will be made available to him for care and services included under the plan and furnished in or after the third month before the month in which he made application (or application was made on his behalf in the case of a deceased individual) for such assistance if such individual was (or upon application would have been) eligible for such assistance at the time such care and services were furnished;
  - (35) provide that any disclosing entity (as defined in [section 1320a–3(a)(2) of this title](/usc/42/1320a–3.md?p=a-2)) receiving payments under such plan complies with the requirements of [section 1320a–3 of this title](/usc/42/1320a–3.md);
  - (36) provide that within 90 days following the completion of each survey of any health care [facility](/usc/42/11049.md?p=4), [laboratory](/usc/42/300jj.md?p=10), [agency](/usc/42/1397n–12.md?p=1), clinic, or organization, by the appropriate [State agency](/usc/42/1320a–7a.md?p=i-1) described in [paragraph (9)](#a-9), such [agency](/usc/42/1397n–12.md?p=1) shall (in accordance with regulations of the [Secretary](/usc/42/1301.md?p=a-6)) make public in readily available form and place the pertinent findings of each such survey relating to the compliance of each such health care [facility](/usc/42/11049.md?p=4), [laboratory](/usc/42/300jj.md?p=10), clinic, [agency](/usc/42/1397n–12.md?p=1), or organization with (A) the statutory conditions of participation imposed under this subchapter, and (B) the major additional conditions which the [Secretary](/usc/42/1301.md?p=a-6) finds necessary in the interest of health and safety of individuals who are furnished care or services by any such [facility](/usc/42/11049.md?p=4), [laboratory](/usc/42/300jj.md?p=10), clinic, [agency](/usc/42/1397n–12.md?p=1), or organization;
  - (37) provide for [claims](/usc/42/1320a–7a.md?p=i-2) payment procedures which (A) ensure that 90 per centum of [claims](/usc/42/1320a–7a.md?p=i-2) for payment (for which no further written information or substantiation is required in order to make payment) made for services covered under the plan and furnished by health care [practitioners](/usc/42/1395a.md?p=b-6-C) through individual or group [practices](/usc/42/17061.md?p=19) or through [shared health facilities](/usc/42/1301.md?p=a-9) are paid within 30 days of the date of receipt of such [claims](/usc/42/1320a–7a.md?p=i-2) and that 99 per centum of such [claims](/usc/42/1320a–7a.md?p=i-2) are paid within 90 days of the date of receipt of such [claims](/usc/42/1320a–7a.md?p=i-2), and (B) provide for procedures of prepayment and postpayment [claims](/usc/42/1320a–7a.md?p=i-2) review, [including](/usc/42/1301.md?p=b) review of appropriate data with respect to the [recipient](/usc/42/2996a.md?p=6) and provider of a service and the nature of the service for which payment is claimed, to ensure the proper and efficient payment of [claims](/usc/42/1320a–7a.md?p=i-2) and management of the [program](/usc/42/274l–1.md?p=4);
  - (38) require that an entity (other than an individual [practitioner](/usc/42/1395a.md?p=b-6-C) or a group of [practitioners](/usc/42/1395a.md?p=b-6-C)) that furnishes, or arranges for the furnishing of, items or services under the plan, shall supply (within such period as may be specified in regulations by the [Secretary](/usc/42/1301.md?p=a-6) or by the [single](/usc/42/2304.md?p=m) [State agency](/usc/42/1320a–7a.md?p=i-1) which administers or supervises the [administration](/usc/42/1301.md?p=a-10) of the plan) upon request specifically addressed to such entity by the [Secretary](/usc/42/1301.md?p=a-6) or such [State agency](/usc/42/1320a–7a.md?p=i-1), the information described in [section 1320a–7(b)(9) of this title](/usc/42/1320a–7.md?p=b-9);
  - (39) provide that the [State agency](/usc/42/1320a–7a.md?p=i-1) shall exclude any specified individual or entity from participation in the [program](/usc/42/274l–1.md?p=4) under the [State](/usc/42/1396b.md?p=w-7-D) plan for the period specified by the [Secretary](/usc/42/1301.md?p=a-6), when required by him to do so pursuant to [section 1320a–7 of this title](/usc/42/1320a–7.md) or [section 1320a–7a of this title](/usc/42/1320a–7a.md), terminate the participation of any individual or entity in such [program](/usc/42/274l–1.md?p=4) if (subject to such exceptions as are permitted with respect to exclusion under sections [1320a–7(c)(3)(B)](/usc/42/1320a–7.md?p=c-3-B) and [1320a–7(d)(3)(B)](/usc/42/1320a–7.md?p=d-3-B) of this title) participation of such individual or entity is terminated under subchapter XVIII, any other [State](/usc/42/1396b.md?p=w-7-D) plan under this subchapter (or waiver of the plan), or any [State child health plan](/usc/42/1397jj.md?p=c-7) under subchapter XXI (or waiver of the plan) and such termination is included by the [Secretary](/usc/42/1301.md?p=a-6) in any database or similar system developed pursuant to [section 6401(b)(2)](/usc/42/6401.md) of the Patient Protection and Affordable Care Act, and provide that no payment may be made under the plan with respect to any item or service furnished by such individual or entity during such period;
  - (40) require each health services [facility](/usc/42/11049.md?p=4) or organization which receives payments under the plan and of a type for which a uniform reporting system has been established under [section 1320a(a) of this title](/usc/42/1320a.md?p=a) to make reports to the [Secretary](/usc/42/1301.md?p=a-6) of information described in such section in accordance with the uniform reporting system (established under such section) for that type of [facility](/usc/42/11049.md?p=4) or organization;
  - (41) provide, in accordance with [subsection (kk)(8)](#kk-8) (as applicable), that whenever a [provider of services](/usc/42/1395n.md?p=a-2) or any other [person](/usc/42/1301.md?p=a-3) is terminated, suspended, or otherwise sanctioned or prohibited from participating under the [State](/usc/42/1396b.md?p=w-7-D) plan, the [State agency](/usc/42/1320a–7a.md?p=i-1) shall promptly notify the [Secretary](/usc/42/1301.md?p=a-6) and, in the case of a [physician](/usc/42/1301.md?p=a-7) and notwithstanding [paragraph (7)](#a-7), the [State](/usc/42/1396b.md?p=w-7-D) medical licensing [board](/usc/42/10261.md?p=2) of such action;
  - (42) provide that—
    - (A) the records of any entity participating in the plan and providing services reimbursable on a cost-related basis will be audited as the [Secretary](/usc/42/1301.md?p=a-6) determines to be necessary to insure that proper payments are made under the plan; and
    - (B) not later than December 31, 2010, the [State](/usc/42/1396b.md?p=w-7-D) shall—
      - (i) establish a [program](/usc/42/274l–1.md?p=4) under which the [State](/usc/42/1396b.md?p=w-7-D) contracts (consistent with [State](/usc/42/1396b.md?p=w-7-D) law and in the same manner as the [Secretary](/usc/42/1301.md?p=a-6) enters into contracts with recovery audit contractors under [section 1395ddd(h) of this title](/usc/42/1395ddd.md?p=h), subject to such exceptions or requirements as the [Secretary](/usc/42/1301.md?p=a-6) may require for purposes of this subchapter or a particular [State](/usc/42/1396b.md?p=w-7-D)) with 1 or more recovery audit contractors for the purpose of identifying underpayments and overpayments and recouping overpayments under the [State](/usc/42/1396b.md?p=w-7-D) plan and under any waiver of the [State](/usc/42/1396b.md?p=w-7-D) plan with respect to all services for which payment is made to any entity under such plan or waiver; and
      - (ii) provide assurances satisfactory to the [Secretary](/usc/42/1301.md?p=a-6) that—
        - (I) under such contracts, payment shall be made to such a contractor only from amounts recovered;
        - (II) from such amounts recovered, payment—
          - (aa) shall be made on a contingent basis for collecting overpayments; and
          - (bb) may be made in such amounts as the [State](/usc/42/1396b.md?p=w-7-D) may specify for identifying underpayments;
        - (III) the [State](/usc/42/1396b.md?p=w-7-D) has an adequate process for entities to appeal any adverse determination made by such contractors; and
        - (IV) such [program](/usc/42/274l–1.md?p=4) is carried out in accordance with such requirements as the [Secretary](/usc/42/1301.md?p=a-6) shall specify, [including](/usc/42/1301.md?p=b)—
          - (aa) for purposes of [section 1396b(a)(7) of this title](/usc/42/1396b.md?p=a-7), that amounts expended by the [State](/usc/42/1396b.md?p=w-7-D) to carry out the [program](/usc/42/274l–1.md?p=4) shall be considered amounts expended as necessary for the proper and efficient [administration](/usc/42/1301.md?p=a-10) of the [State](/usc/42/1396b.md?p=w-7-D) plan or a waiver of the plan;
          - (bb) that [section 1396b(d) of this title](/usc/42/1396b.md?p=d) shall apply to amounts recovered under the [program](/usc/42/274l–1.md?p=4); and
          - (cc) that the [State](/usc/42/1396b.md?p=w-7-D) and any such contractors under contract with the [State](/usc/42/1396b.md?p=w-7-D) shall coordinate such recovery audit efforts with other contractors or entities performing audits of entities receiving payments under the [State](/usc/42/1396b.md?p=w-7-D) plan or waiver in the [State](/usc/42/1396b.md?p=w-7-D), [including](/usc/42/1301.md?p=b) efforts with Federal and [State](/usc/42/1396b.md?p=w-7-D) [law enforcement](/usc/42/1397j.md?p=13) with respect to the Department of Justice, [including](/usc/42/1301.md?p=b) the Federal Bureau of Investigations,[^7] the Inspector General of the Department of Health and Human Services, and the [State](/usc/42/1396b.md?p=w-7-D) [medicaid](/usc/42/1396b.md?p=w-3-E-iii-III-aa) fraud control [unit](/usc/42/1395w–114b.md?p=g-2); and
  - (43) provide for—
    - (A) informing all [persons](/usc/42/1301.md?p=a-3) in the [State](/usc/42/1396b.md?p=w-7-D) who are under the age of 21 and who have been determined to be eligible for medical assistance [including](/usc/42/1301.md?p=b) services described in [section 1396d(a)(4)(B) of this title](/usc/42/1396d.md), of the availability of [early and periodic screening, diagnostic, and treatment services](/usc/42/1396d.md?p=r) as described in [section 1396d(r) of this title](/usc/42/1396d.md?p=r) and the need for age-appropriate immunizations against vaccine-preventable diseases,
    - (B) providing or arranging for the provision of such screening services in all cases where they are requested,
    - (C) arranging for (directly or through referral to appropriate [agencies](/usc/42/1397n–12.md?p=1), organizations, or individuals) corrective [treatment](/usc/42/11851.md?p=11) the need for which is disclosed by such [child](/usc/42/416.md?p=e) health screening services, and
    - (D) reporting to the [Secretary](/usc/42/1301.md?p=a-6) (in a uniform form and manner established by the [Secretary](/usc/42/1301.md?p=a-6), by age group and by basis of eligibility for medical assistance, and by not later than April 1 after the end of each fiscal year, beginning with fiscal year 1990) the following information relating to [early and periodic screening, diagnostic, and treatment services](/usc/42/1396d.md?p=r) provided under the plan during each fiscal year:
      - (i) the number of [children](/usc/42/256e.md?p=g-2) provided [child](/usc/42/416.md?p=e) health screening services,
      - (ii) the number of [children](/usc/42/256e.md?p=g-2) referred for corrective [treatment](/usc/42/11851.md?p=11) (the need for which is disclosed by such [child](/usc/42/416.md?p=e) health screening services),
      - (iii) the number of [children](/usc/42/256e.md?p=g-2) receiving dental services, and other information relating to the provision of dental services to such [children](/usc/42/256e.md?p=g-2) described in [section 1397hh(e)](/usc/42/1397hh.md?p=e)[^8] of this title and
      - (iv) the [State](/usc/42/1396b.md?p=w-7-D)’s results in attaining the participation goals set for the [State](/usc/42/1396b.md?p=w-7-D) under [section 1396d(r) of this title](/usc/42/1396d.md?p=r);
  - (44) in each case for which payment for inpatient [hospital](/usc/42/1395dd.md?p=e-5) services, services in an [intermediate care facility for the mentally retarded](/usc/42/1396d.md?p=d), or inpatient mental [hospital](/usc/42/1395dd.md?p=e-5) services is made under the [State](/usc/42/1396b.md?p=w-7-D) plan—
    - (A) a [physician](/usc/42/1301.md?p=a-7) (or, in the case of [skilled nursing facility](/usc/42/1395x.md?p=j) services or [intermediate care facility services](/usc/42/1396n.md?p=d-5-C-iii), a [physician](/usc/42/1301.md?p=a-7), or a nurse [practitioner](/usc/42/1395a.md?p=b-6-C) or clinical nurse specialist who is not an [employee](/usc/42/1320a–7h.md?p=e-7) of the [facility](/usc/42/11049.md?p=4) but is working in collaboration with a [physician](/usc/42/1301.md?p=a-7)) certifies at the time of admission, or, if later, the time the individual applies for medical assistance under the [State](/usc/42/1396b.md?p=w-7-D) plan (and a [physician](/usc/42/1301.md?p=a-7), a [physician](/usc/42/1301.md?p=a-7) assistant under the supervision of a [physician](/usc/42/1301.md?p=a-7), or, in the case of [skilled nursing facility](/usc/42/1395x.md?p=j) services or [intermediate care facility services](/usc/42/1396n.md?p=d-5-C-iii), a [physician](/usc/42/1301.md?p=a-7), or a nurse [practitioner](/usc/42/1395a.md?p=b-6-C) or clinical nurse specialist who is not an [employee](/usc/42/1320a–7h.md?p=e-7) of the [facility](/usc/42/11049.md?p=4) but is working in collaboration with a [physician](/usc/42/1301.md?p=a-7), recertifies, where such services are furnished over a period of time, in such cases, at least as often as required under [section 1396b(g)(6) of this title](/usc/42/1396b.md?p=g-6) (or, in the case of services that are services provided in an [intermediate care facility for the mentally retarded](/usc/42/1396d.md?p=d), every year), and accompanied by such supporting material, appropriate to the case involved, as may be provided in regulations of the [Secretary](/usc/42/1301.md?p=a-6)), that such services are or were required to be given on an inpatient basis because the individual needs or needed such services, and
    - (B) such services were furnished under a plan established and periodically reviewed and evaluated by a [physician](/usc/42/1301.md?p=a-7), or, in the case of [skilled nursing facility](/usc/42/1395x.md?p=j) services or [intermediate care facility services](/usc/42/1396n.md?p=d-5-C-iii), a [physician](/usc/42/1301.md?p=a-7), or a nurse [practitioner](/usc/42/1395a.md?p=b-6-C) or clinical nurse specialist who is not an [employee](/usc/42/1320a–7h.md?p=e-7) of the [facility](/usc/42/11049.md?p=4) but is working in collaboration with a [physician](/usc/42/1301.md?p=a-7);
  - (45) provide for mandatory assignment of rights of payment for medical support and other [medical care](/usc/42/1301.md?p=a-7) owed to [recipients](/usc/42/2996a.md?p=6), in accordance with [section 1396k of this title](/usc/42/1396k.md);
  - (46)
    - (A) provide that information is requested and exchanged for purposes of [income](/usc/42/292s.md?p=c-4) and eligibility verification in accordance with a [State](/usc/42/1396b.md?p=w-7-D) system which meets the requirements of [section 1320b–7 of this title](/usc/42/1320b–7.md); and
    - (B) provide, with respect to an individual declaring to be a citizen or national of the [United States](/usc/42/1301.md?p=a-2) for purposes of establishing eligibility under this subchapter, that the [State](/usc/42/1396b.md?p=w-7-D) shall satisfy the requirements of—
      - (i) [section 1396b(x) of this title](/usc/42/1396b.md?p=x); or
      - (ii) [subsection (ee)](#ee);
  - (47) provide—
    - (A) at the option of the [State](/usc/42/1396b.md?p=w-7-D), for making ambulatory prenatal care available to pregnant women during a presumptive eligibility period in accordance with [section 1396r–1 of this title](/usc/42/1396r–1.md) and provide for making medical assistance for items and services described in subsection (a) of [section 1396r–1a of this title](/usc/42/1396r–1a.md) available to [children](/usc/42/256e.md?p=g-2) during a presumptive eligibility period in accordance with such section and provide for making medical assistance available to individuals described in subsection (a) of [section 1396r–1b of this title](/usc/42/1396r–1b.md) during a presumptive eligibility period in accordance with such section and provide for making medical assistance available to individuals described in subsection (a) of [section 1396r–1c of this title](/usc/42/1396r–1c.md) during a presumptive eligibility period in accordance with such section; and
    - (B) that any [hospital](/usc/42/1395dd.md?p=e-5) that is a participating provider under the [State](/usc/42/1396b.md?p=w-7-D) plan may elect to be a qualified entity for purposes of determining, on the basis of preliminary information, whether any individual is eligible for medical assistance under the [State](/usc/42/1396b.md?p=w-7-D) plan or under a waiver of the plan for purposes of providing the individual with medical assistance during a presumptive eligibility period, in the same manner, and subject to the same requirements, as apply to the [State](/usc/42/1396b.md?p=w-7-D) options with respect to populations described in section [1396r–1](/usc/42/1396r–1.md), [1396r–1a](/usc/42/1396r–1a.md), [1396r–1b](/usc/42/1396r–1b.md), or [1396r–1c](/usc/42/1396r–1c.md) of this title (but without regard to whether the [State](/usc/42/1396b.md?p=w-7-D) has elected to provide for a presumptive eligibility period under any such sections), subject to such guidance as the [Secretary](/usc/42/1301.md?p=a-6) shall establish;
  - (48) provide a method of making cards evidencing eligibility for medical assistance available to an [eligible individual](/usc/42/239.md?p=a-6) who does not reside in a permanent dwelling or does not have a fixed home or mailing address;
  - (49) provide that the [State](/usc/42/1396b.md?p=w-7-D) will provide information and access to certain information respecting sanctions taken against health care [practitioners](/usc/42/1395a.md?p=b-6-C) and providers by [State](/usc/42/1396b.md?p=w-7-D) licensing authorities in accordance with [section 1396r–2 of this title](/usc/42/1396r–2.md);
  - (50) provide, in accordance with [subsection (q)](#q), for a monthly personal needs allowance for certain [institutionalized individuals](/usc/42/1382b.md?p=c-1-F-ii) and couples;
  - (51) meet the requirements of [section 1396r–5 of this title](/usc/42/1396r–5.md) (relating to protection of community spouses);
  - (52) meet the requirements of [section 1396r–6 of this title](/usc/42/1396r–6.md) (relating to extension of eligibility for medical assistance);
  - (53) provide—
    - (A) for notifying in a timely manner all individuals in the [State](/usc/42/1396b.md?p=w-7-D) who are determined to be eligible for medical assistance and who are pregnant women, breastfeeding or postpartum women (as defined in section 17 of the [Child](/usc/42/416.md?p=e) Nutrition Act of 1966 [[42 U.S.C. 1786](/usc/42/1786.md)]), or [children](/usc/42/256e.md?p=g-2) below the age of 5, of the availability of benefits furnished by the special supplemental nutrition [program](/usc/42/274l–1.md?p=4) under such section, and
    - (B) for referring any such individual to the [State agency](/usc/42/1320a–7a.md?p=i-1) responsible for administering such [program](/usc/42/274l–1.md?p=4);
  - (54) in the case of a [State](/usc/42/1396b.md?p=w-7-D) plan that provides medical assistance for [covered outpatient drugs](/usc/42/1396r–8.md?p=k-3) (as defined in [section 1396r–8(k) of this title](/usc/42/1396r–8.md?p=k)), comply with the applicable requirements of [section 1396r–8 of this title](/usc/42/1396r–8.md);
  - (55) provide for receipt and initial processing of applications of individuals for medical assistance under subsection [(a)(10)(A)(i)(IV)](#a-10-A-i-IV), [(a)(10)(A)(i)(VI)](#a-10-A-i-VI), [(a)(10)(A)(i)(VII)](#a-10-A-i-VII), [(a)(10)(A)(ii)(IX)](#a-10-A-ii-IX), or [(a)(10)(A)(ii)(XXIII)](#a-10-A-ii-XXIII)—
    - (A) at locations which are other than those used for the receipt and processing of applications for aid under part A of subchapter IV and which include [facilities](/usc/42/11049.md?p=4) defined as disproportionate share [hospitals](/usc/42/1395dd.md?p=e-5) under [section 1396r–4(a)(1)(A) of this title](/usc/42/1396r–4.md?p=a-1-A) and [Federally-qualified health centers](/usc/42/1396d.md?p=l-2-B) described in [section 1396d(1)(2)(B)](/usc/42/1396d.md)[^9] of this title, and
    - (B) using applications which are other than those used for applications for aid under such part;
  - (56) provide, in accordance with [subsection (s)](#s), for adjusted payments for certain inpatient [hospital](/usc/42/1395dd.md?p=e-5) services;
  - (57) provide that each [hospital](/usc/42/1395dd.md?p=e-5), [nursing facility](/usc/42/1396r.md?p=a), provider of home health care or [personal care services](/usc/42/1396b.md?p=l-5-C), hospice [program](/usc/42/274l–1.md?p=4), or [medicaid managed care organization](/usc/42/1396b.md?p=m-1-A) (as defined in [section 1396b(m)(1)(A) of this title](/usc/42/1396b.md?p=m-1-A)) receiving [funds](/usc/42/12854.md?p=3) under the plan shall comply with the requirements of [subsection (w)](#w);
  - (58) provide that the [State](/usc/42/1396b.md?p=w-7-D), acting through a [State agency](/usc/42/1320a–7a.md?p=i-1), association, or other private nonprofit entity, develop a written description of the law of the [State](/usc/42/1396b.md?p=w-7-D) (whether statutory or as recognized by the courts of the [State](/usc/42/1396b.md?p=w-7-D)) concerning advance directives that would be distributed by providers or organizations under the requirements of [subsection (w)](#w);
  - (59) maintain a list (updated not less often than monthly, and containing each [physician](/usc/42/1301.md?p=a-7)’s unique identifier provided under the system established under [subsection (x)](#x)) of all [physicians](/usc/42/1396d.md?p=e) who are certified to participate under the [State](/usc/42/1396b.md?p=w-7-D) plan;
  - (60) provide that the [State agency](/usc/42/1320a–7a.md?p=i-1) shall provide assurances satisfactory to the [Secretary](/usc/42/1301.md?p=a-6) that the [State](/usc/42/1396b.md?p=w-7-D) has in effect the laws relating to medical [child](/usc/42/416.md?p=e) support required under [section 1396g–1 of this title](/usc/42/1396g–1.md);
  - (61) provide that the [State](/usc/42/1396b.md?p=w-7-D) must demonstrate that it operates a [medicaid](/usc/42/1396b.md?p=w-3-E-iii-III-aa) fraud and [abuse](/usc/42/1397j.md?p=1) control [unit](/usc/42/1395w–114b.md?p=g-2) described in [section 1396b(q) of this title](/usc/42/1396b.md?p=q) that effectively carries out the functions and requirements described in such section, as determined in accordance with [standards](/usc/42/1320d.md?p=7) established by the [Secretary](/usc/42/1301.md?p=a-6), unless the [State](/usc/42/1396b.md?p=w-7-D) demonstrates to the satisfaction of the [Secretary](/usc/42/1301.md?p=a-6) that the effective operation of such a [unit](/usc/42/1395w–114b.md?p=g-2) in the [State](/usc/42/1396b.md?p=w-7-D) would not be [cost-effective](/usc/42/1396e.md?p=e-2) because minimal fraud exists in connection with the provision of covered services to [eligible individuals](/usc/42/239.md?p=a-6) under the [State](/usc/42/1396b.md?p=w-7-D) plan, and that beneficiaries under the plan will be protected from [abuse](/usc/42/1397j.md?p=1) and [neglect](/usc/42/1397j.md?p=16) in connection with the provision of medical assistance under the plan without the existence of such a [unit](/usc/42/1395w–114b.md?p=g-2);
  - (62) provide for a [program](/usc/42/274l–1.md?p=4) for the distribution of pediatric vaccines to [program](/usc/42/274l–1.md?p=4)-registered providers for the immunization of vaccine-eligible [children](/usc/42/256e.md?p=g-2) in accordance with [section 1396s of this title](/usc/42/1396s.md);
  - (63) provide for [administration](/usc/42/1301.md?p=a-10) and determinations of eligibility with respect to individuals who are (or seek to be) eligible for medical assistance based on the application of [section 1396u–1 of this title](/usc/42/1396u–1.md);
  - (64) provide, not later than 1 year after August 5, 1997, a mechanism to receive reports from beneficiaries and others and compile data concerning alleged instances of waste, fraud, and [abuse](/usc/42/1397j.md?p=1) relating to the operation of this subchapter;
  - (65) provide that the [State](/usc/42/1396b.md?p=w-7-D) shall issue provider numbers for all [suppliers](/usc/42/1395cc–4.md?p=a-2-I) of medical assistance consisting of durable medical equipment, as defined in [section 1395x(n) of this title](/usc/42/1395x.md?p=n), and the [State](/usc/42/1396b.md?p=w-7-D) shall not issue or renew such a [supplier](/usc/42/1395cc–4.md?p=a-2-I) number for any such [supplier](/usc/42/1395cc–4.md?p=a-2-I) unless—
    - (A)
      - (i) full and complete information as to the identity of each [person with an ownership or control interest](/usc/42/14902.md?p=15) (as defined in [section 1320a–3(a)(3) of this title](/usc/42/1320a–3.md?p=a-3)) in the [supplier](/usc/42/1395cc–4.md?p=a-2-I) or in any subcontractor (as defined by the [Secretary](/usc/42/1301.md?p=a-6) in regulations) in which the [supplier](/usc/42/1395cc–4.md?p=a-2-I) directly or indirectly has a 5 percent or more ownership interest; and
      - (ii) to the extent determined to be feasible under regulations of the [Secretary](/usc/42/1301.md?p=a-6), the name of any disclosing entity (as defined in [section 1320a–3(a)(2) of this title](/usc/42/1320a–3.md?p=a-2)) with respect to which a [person](/usc/42/1301.md?p=a-3) with such an ownership or control interest in the [supplier](/usc/42/1395cc–4.md?p=a-2-I) is a [person](/usc/42/1301.md?p=a-3) with such an ownership or control interest in the disclosing entity; and
    - (B) a surety bond in a form specified by the [Secretary](/usc/42/1301.md?p=a-6) under [section 1395m(a)(16)(B) of this title](/usc/42/1395m.md?p=a-16-B) and in an amount that is not less than $50,000 or such comparable surety bond as the [Secretary](/usc/42/1301.md?p=a-6) may permit under the second sentence of such section;
  - (66) provide for making eligibility determinations under [section 1396u–5(a) of this title](/usc/42/1396u–5.md?p=a);
  - (67) provide, with respect to services covered under the [State](/usc/42/1396b.md?p=w-7-D) plan (but not under subchapter XVIII) that are furnished to a PACE [program](/usc/42/274l–1.md?p=4) [eligible individual](/usc/42/239.md?p=a-6) enrolled with a PACE provider by a provider participating under the [State](/usc/42/1396b.md?p=w-7-D) plan that does not have a contract or other [agreement](/usc/42/1320b–8.md?p=a-3-A) with the PACE provider that establishes payment amounts for such services, that such participating provider may not require the PACE provider to pay the participating provider an amount greater than the amount that would otherwise be payable for the service to the participating provider under the [State](/usc/42/1396b.md?p=w-7-D) plan for the [State](/usc/42/1396b.md?p=w-7-D) where the PACE provider is located (in accordance with regulations issued by the [Secretary](/usc/42/1301.md?p=a-6));
  - (68) provide that any entity that receives or makes annual payments under the [State](/usc/42/1396b.md?p=w-7-D) plan of at least $5,000,000, as a condition of receiving such payments, shall—
    - (A) establish written policies for all [employees](/usc/42/1320a–7h.md?p=e-7) of the entity ([including](/usc/42/1301.md?p=b) management), and of any contractor or agent of the entity, that provide detailed information about the False Claims Act established under [sections 3729 through 3733](/usc/31/3729..3733.md) of title 31, administrative remedies for false [claims](/usc/42/1320a–7a.md?p=i-2) and statements established under [chapter 38](/usc/31/chstIII-ch38.md) of title 31, any [State](/usc/42/1396b.md?p=w-7-D) laws pertaining to civil or criminal penalties for false [claims](/usc/42/1320a–7a.md?p=i-2) and statements, and whistleblower protections under such laws, with respect to the role of such laws in preventing and detecting fraud, waste, and [abuse](/usc/42/1397j.md?p=1) in Federal health care [programs](/usc/42/274l–1.md?p=4) (as defined in [section 1320a–7b(f) of this title](/usc/42/1320a–7b.md?p=f));
    - (B) include as part of such written policies, detailed provisions regarding the entity’s policies and procedures for detecting and preventing fraud, waste, and [abuse](/usc/42/1397j.md?p=1); and
    - (C) include in any [employee](/usc/42/1320a–7h.md?p=e-7) handbook for the entity, a specific discussion of the laws described in [subparagraph (A)](#a-68-A), the rights of [employees](/usc/42/1320a–7h.md?p=e-7) to be protected as whistleblowers, and the entity’s policies and procedures for detecting and preventing fraud, waste, and [abuse](/usc/42/1397j.md?p=1);
  - (69) provide that the [State](/usc/42/1396b.md?p=w-7-D) must comply with any requirements determined by the [Secretary](/usc/42/1301.md?p=a-6) to be necessary for carrying out the [Medicaid](/usc/42/1396b.md?p=w-3-E-iii-III-aa) Integrity [Program](/usc/42/274l–1.md?p=4) established under [section 1396u–6 of this title](/usc/42/1396u–6.md);
  - (70) at the option of the [State](/usc/42/1396b.md?p=w-7-D) and notwithstanding paragraphs [(1)](#a-1), [(10)(B)](#a-10-B), and [(23)](#a-23), provide for the establishment of a non-emergency medical transportation brokerage [program](/usc/42/274l–1.md?p=4) in order to more cost-effectively provide transportation for individuals eligible for medical assistance under the [State](/usc/42/1396b.md?p=w-7-D) plan who need access to [medical care](/usc/42/1301.md?p=a-7) or services and have no other means of transportation which—
    - (A) may include a wheelchair van, taxi, stretcher car, bus passes and tickets, secured transportation, and such other transportation as the [Secretary](/usc/42/1301.md?p=a-6) determines appropriate; and
    - (B) may be conducted under contract with a broker who—
      - (i) is selected through a competitive bidding process based on the [State](/usc/42/1396b.md?p=w-7-D)’s evaluation of the broker’s experience, performance, references, resources, qualifications, and costs;
      - (ii) has oversight procedures to monitor beneficiary access and complaints and ensure that transport personnel are licensed, qualified, competent, and courteous;
      - (iii) is subject to regular auditing and oversight by the [State](/usc/42/1396b.md?p=w-7-D) in order to ensure the quality of the transportation services provided and the adequacy of beneficiary access to [medical care](/usc/42/1301.md?p=a-7) and services; and
      - (iv) complies with such requirements related to prohibitions on referrals and conflict of interest as the [Secretary](/usc/42/1301.md?p=a-6) shall establish (based on the prohibitions on [physician](/usc/42/1301.md?p=a-7) referrals under [section 1395nn of this title](/usc/42/1395nn.md) and such other prohibitions and requirements as the [Secretary](/usc/42/1301.md?p=a-6) determines to be appropriate);
  - (71) provide that the [State](/usc/42/1396b.md?p=w-7-D) will implement an asset verification [program](/usc/42/274l–1.md?p=4) as required under [section 1396w of this title](/usc/42/1396w.md);
  - (72) provide that the [State](/usc/42/1396b.md?p=w-7-D) will not prevent a [Federally-qualified health center](/usc/42/1396d.md?p=l-2-B) from entering into [contractual relationships](/usc/42/9601.md?p=35-A) with private practice dental providers in the provision of [Federally-qualified health center services](/usc/42/1396d.md?p=l-2-A);
  - (73) in the case of any [State](/usc/42/1396b.md?p=w-7-D) in which 1 or more [Indian](/usc/42/6862.md?p=6) Health [Programs](/usc/42/274l–1.md?p=4) or Urban [Indian](/usc/42/6862.md?p=6) Organizations furnishes health care services, provide for a process under which the [State](/usc/42/1396b.md?p=w-7-D) seeks advice on a regular, ongoing basis from designees of such [Indian](/usc/42/6862.md?p=6) Health [Programs](/usc/42/274l–1.md?p=4) and Urban [Indian](/usc/42/6862.md?p=6) Organizations on matters relating to the application of this subchapter that are likely to have a direct effect on such [Indian](/usc/42/6862.md?p=6) Health [Programs](/usc/42/274l–1.md?p=4) and Urban [Indian](/usc/42/6862.md?p=6) Organizations and that—
    - (A) shall include solicitation of advice prior to submission of any plan amendments, waiver requests, and proposals for [demonstration projects](/usc/42/16281.md?p=d-2) likely to have a direct effect on [Indians](/usc/42/6862.md?p=6), [Indian](/usc/42/6862.md?p=6) Health [Programs](/usc/42/274l–1.md?p=4), or Urban [Indian](/usc/42/6862.md?p=6) Organizations; and
    - (B) may include appointment of an [advisory committee](/usc/42/7703.md?p=9) and of a designee of such [Indian](/usc/42/6862.md?p=6) Health [Programs](/usc/42/274l–1.md?p=4) and Urban [Indian](/usc/42/6862.md?p=6) Organizations to the [medical care](/usc/42/1301.md?p=a-7) [advisory committee](/usc/42/7703.md?p=9) advising the [State](/usc/42/1396b.md?p=w-7-D) on its [State](/usc/42/1396b.md?p=w-7-D) plan under this subchapter;
  - (74) provide for maintenance of effort under the [State](/usc/42/1396b.md?p=w-7-D) plan or under any waiver of the plan in accordance with [subsection (gg)](#gg);
  - (75) provide that, beginning January 2015, and annually thereafter, the [State](/usc/42/1396b.md?p=w-7-D) shall submit a report to the [Secretary](/usc/42/1301.md?p=a-6) that contains—
    - (A) the total number of enrolled and newly enrolled individuals in the [State](/usc/42/1396b.md?p=w-7-D) plan or under a waiver of the plan for the fiscal year ending on September 30 of the preceding calendar year, disaggregated by population, [including](/usc/42/1301.md?p=b) [children](/usc/42/256e.md?p=g-2), [parents](#k-3), [nonpregnant childless adults](/usc/42/1397kk.md?p=c-2-B), disabled individuals, elderly individuals, and such other [categories](/usc/42/1395w–4.md?p=j-1) or sub-[categories](/usc/42/1395w–4.md?p=j-1) of individuals eligible for medical assistance under the [State](/usc/42/1396b.md?p=w-7-D) plan or under a waiver of the plan as the [Secretary](/usc/42/1301.md?p=a-6) may require;
    - (B) a description, which may be specified by population, of the outreach and enrollment processes used by the [State](/usc/42/1396b.md?p=w-7-D) during such fiscal year; and
    - (C) any other data reporting determined necessary by the [Secretary](/usc/42/1301.md?p=a-6) to monitor enrollment and retention of individuals eligible for medical assistance under the [State](/usc/42/1396b.md?p=w-7-D) plan or under a waiver of the plan;
  - (76) provide that any data collected under the [State](/usc/42/1396b.md?p=w-7-D) plan meets the requirements of section 3101 of the Public Health Service Act [[42 U.S.C. 300kk](/usc/42/300kk.md)];
  - (77) provide that the [State](/usc/42/1396b.md?p=w-7-D) shall comply with provider and [supplier](/usc/42/1395cc–4.md?p=a-2-I) screening, oversight, and reporting requirements in accordance with [subsection (kk)](#kk);
  - (78) provide that, not later than January 1, 2017, in the case of a [State](/usc/42/1396b.md?p=w-7-D) that pursuant to its [State](/usc/42/1396b.md?p=w-7-D) plan or waiver of the plan for medical assistance pays for medical assistance on a fee-for-service basis, the [State](/usc/42/1396b.md?p=w-7-D) shall require each provider furnishing items and services to, or ordering, prescribing, referring, or certifying eligibility for, services for individuals eligible to receive medical assistance under such plan to enroll with the [State agency](/usc/42/1320a–7a.md?p=i-1) and provide to the [State agency](/usc/42/1320a–7a.md?p=i-1) the provider’s identifying information, [including](/usc/42/1301.md?p=b) the name, specialty, date of birth, [Social](/usc/42/1397j.md?p=20) Security number, national provider identifier (if applicable), Federal taxpayer identification number, and the [State](/usc/42/1396b.md?p=w-7-D) license or certification number of the provider (if applicable);
  - (79) provide that any agent, clearinghouse, or other alternate payee (as defined by the [Secretary](/usc/42/1301.md?p=a-6)) that submits [claims](/usc/42/1320a–7a.md?p=i-2) on behalf of a [health care provider](/usc/42/300jj.md?p=3) must register with the [State](/usc/42/1396b.md?p=w-7-D) and the [Secretary](/usc/42/1301.md?p=a-6) in a form and manner specified by the [Secretary](/usc/42/1301.md?p=a-6);
  - (80) provide that the [State](/usc/42/1396b.md?p=w-7-D) shall not provide any payments for items or services provided under the [State](/usc/42/1396b.md?p=w-7-D) plan or under a waiver to any [financial institution](/usc/42/666.md?p=a-17-D-i) or entity located outside of the [United States](/usc/42/1301.md?p=a-2);
  - (81) provide for implementation of the payment models specified by the [Secretary](/usc/42/1301.md?p=a-6) under [section 1315a(c) of this title](/usc/42/1315a.md?p=c) for implementation on a nationwide basis unless the [State](/usc/42/1396b.md?p=w-7-D) demonstrates to the satisfaction of the [Secretary](/usc/42/1301.md?p=a-6) that implementation would not be administratively feasible or appropriate to the health care delivery system of the [State](/usc/42/1396b.md?p=w-7-D);
  - (82) provide that the [State agency](/usc/42/1320a–7a.md?p=i-1) responsible for administering the [State](/usc/42/1396b.md?p=w-7-D) plan under this subchapter provides assurances to the [Secretary](/usc/42/1301.md?p=a-6) that the [State agency](/usc/42/1320a–7a.md?p=i-1) is in compliance with subparagraphs (A), (B), and (C) of [section 1320a–7n(b)(2) of this title](/usc/42/1320a–7n.md?p=b-2);
  - (83) provide that in the case of a [State](/usc/42/1396b.md?p=w-7-D) plan (or waiver of the plan) that provides medical assistance on a fee-for-service basis or through a primary care case-management system described in [section 1396n(b)(1) of this title](/usc/42/1396n.md?p=b-1), the [State](/usc/42/1396b.md?p=w-7-D) shall publish (and update on at least a quarterly basis or more frequently as required by the [Secretary](/usc/42/1301.md?p=a-6)) on the public website of the [State agency](/usc/42/1320a–7a.md?p=i-1) administering the [State](/usc/42/1396b.md?p=w-7-D) plan, a searchable directory of the providers described in [subsection (mm)](#mm) that, in addition to such other requirements as the [Secretary](/usc/42/1301.md?p=a-6) may specify, such as making paper directories available to enrollees, [includes](/usc/42/1301.md?p=b) with respect to each such provider—
    - (A) the name of the provider;
    - (B) the specialty of the provider;
    - (C) the address at which the provider provides services;
    - (D) the telephone number of the provider;
    - (E) information regarding—
      - (i) the provider’s cultural and linguistic capabilities, [including](/usc/42/1301.md?p=b) languages ([including](/usc/42/1301.md?p=b) American Sign Language) offered by the provider or by a skilled medical interpreter who provides interpretation services at the provider’s [office](/usc/42/3058f.md?p=1);
      - (ii) whether the provider is accepting as new patients individuals who receive medical assistance under this subchapter;
      - (iii) whether the provider’s [office](/usc/42/3058f.md?p=1) or [facility](/usc/42/11049.md?p=4) has accommodations for individuals with physical disabilities, [including](/usc/42/1301.md?p=b) [offices](/usc/42/3058f.md?p=1), exam rooms, and equipment;
      - (iv) the Internet website of such provider, if applicable; and
      - (v) whether the provider offers covered services via telehealth; and
    - (F) other relevant information as required by the [Secretary](/usc/42/1301.md?p=a-6);
  - (84) provide that—
    - (A) the [State](/usc/42/1396b.md?p=w-7-D) shall not terminate eligibility for medical assistance under the [State](/usc/42/1396b.md?p=w-7-D) plan (or waiver of such plan) for an individual because the individual is an [inmate of a public institution](#nn-3) (as defined in [subsection (nn)(3)](#nn-3)), but, subject to [subparagraph (D)](#a-84-D), may suspend coverage during the period the individual is such an inmate (or in the case of such an individual who is an [eligible juvenile](#nn-2) (as defined in [subsection (nn)(2)](#nn-2)) and a [State](/usc/42/1396b.md?p=w-7-D) electing the option described in the subdivision (A) following the last numbered paragraph of [section 1396d(a) of this title](/usc/42/1396d.md?p=a), during such period beginning after the disposition of charges with respect to such individual);
    - (B) in the case of an individual who is an [eligible juvenile](#nn-2) described in [paragraph (2)(A)](#nn-2-A) of subsection (nn), the [State](/usc/42/1396b.md?p=w-7-D) shall, prior to the individual’s [release](/usc/42/9601.md?p=22) from such a public institution, conduct a redetermination of eligibility for such individual with respect to such medical assistance (without requiring a new application from the individual) and, if the [State](/usc/42/1396b.md?p=w-7-D) determines pursuant to such redetermination that the individual continues to meet the eligibility requirements for such medical assistance, the [State](/usc/42/1396b.md?p=w-7-D) shall restore coverage for such medical assistance to such an individual upon the individual’s [release](/usc/42/9601.md?p=22) from such public institution;
    - (C) in the case of an individual who is an [eligible juvenile](#nn-2) described in [paragraph (2)(B)](#nn-2-B) of subsection (nn), the [State](/usc/42/1396b.md?p=w-7-D) shall process any application for medical assistance submitted by, or on behalf of, such individual such that the [State](/usc/42/1396b.md?p=w-7-D) makes a determination of eligibility for such individual with respect to such medical assistance upon [release](/usc/42/9601.md?p=22) of such individual from such public institution; and
    - (D) in the case of an individual who is an [eligible juvenile](#nn-2) described in [subsection (nn)(2)](#nn-2) and is within 30 days of the date on which such [eligible juvenile](#nn-2) is scheduled to be released from a public institution following adjudication, the [State](/usc/42/1396b.md?p=w-7-D) shall have in place a plan, and in accordance with such plan, provide for—
      - (i) in the 30 days prior to the [release](/usc/42/9601.md?p=22) of such [eligible juvenile](#nn-2) from such public institution (or not later than one week, or as soon as practicable, after [release](/usc/42/9601.md?p=22) from the public institution), and in coordination with such institution, any screening or diagnostic service which meets reasonable [standards](/usc/42/1320d.md?p=7) of medical and dental practice, as determined by the [State](/usc/42/1396b.md?p=w-7-D), or as indicated as medically necessary, in accordance with paragraphs (1)(A) and (5) of [section 1396d(r) of this title](/usc/42/1396d.md?p=r), [including](/usc/42/1301.md?p=b) a behavioral health screening or diagnostic service; and
      - (ii) in the 30 days prior to the [release](/usc/42/9601.md?p=22) of such [eligible juvenile](#nn-2) from such public institution, and for at least 30 days following the [release](/usc/42/9601.md?p=22) of such [eligible juvenile](#nn-2) from such institution, [targeted case management services](/usc/42/1396n.md?p=g-2-B), [including](/usc/42/1301.md?p=b) referrals for such [eligible juvenile](#nn-2) to the appropriate care and services available in the geographic region of the home or residence of such [eligible juvenile](#nn-2) (where feasible) under the [State](/usc/42/1396b.md?p=w-7-D) plan (or waiver of such plan);
  - (85) provide that the [State](/usc/42/1396b.md?p=w-7-D) is in compliance with the [drug](/usc/42/282.md?p=j-1-A-vii) review and utilization requirements under [subsection (oo)(1)](#oo-1);
  - (86) provide, at the option of the [State](/usc/42/1396b.md?p=w-7-D), for making medical assistance available on an inpatient or outpatient basis at a [residential pediatric recovery center](#pp-1) (as defined in [subsection (pp)](#pp)) to infants with neonatal abstinence syndrome;
  - (87) provide for a mechanism, which may include attestation, that ensures that, with respect to any provider ([including](/usc/42/1301.md?p=b) a transportation network company) or individual driver of nonemergency transportation to medically necessary services receiving payments under such plan (but excluding any public transit authority), at a minimum—
    - (A) each such provider and individual driver is not excluded from participation in any Federal health care [program](/usc/42/274l–1.md?p=4) (as defined in [section 1320a–7b(f) of this title](/usc/42/1320a–7b.md?p=f)) and is not listed on the exclusion list of the Inspector General of the Department of Health and Human Services;
    - (B) each such individual driver has a valid driver’s license;
    - (C) each such provider has in place a process to address any [violation](/usc/42/2000e–16a.md?p=c) of a [State](/usc/42/1396b.md?p=w-7-D) [drug](/usc/42/282.md?p=j-1-A-vii) law; and
    - (D) each such provider has in place a process to disclose to the [State](/usc/42/1396b.md?p=w-7-D) [Medicaid](/usc/42/1396b.md?p=w-3-E-iii-III-aa) [program](/usc/42/274l–1.md?p=4) the driving history, [including](/usc/42/1301.md?p=b) any traffic [violations](/usc/42/2000e–16a.md?p=c), of each such individual driver employed by such provider, [including](/usc/42/1301.md?p=b) any traffic [violations](/usc/42/2000e–16a.md?p=c);
  - (88) provide—
    - (A) beginning not later than January 1, 2027, in the case of 1 of the 50 [States](/usc/42/1396b.md?p=w-7-D) and the District of Columbia, for a process to regularly obtain address information for individuals enrolled under such plan (or a waiver of such plan) in accordance with [subsection (vv)](#vv); and
    - (B) beginning not later than October 1, 2029—
      - (i) for the [State](/usc/42/1396b.md?p=w-7-D) to submit to the system established by the [Secretary](/usc/42/1301.md?p=a-6) under [subsection (uu)](#uu), with respect to an individual enrolled or seeking to enroll under such plan, not less frequently than once each month and during each determination or redetermination of the eligibility of such individual for medical assistance under such plan (or waiver of such plan)—
        - (I) the [social](/usc/42/1397j.md?p=20) security number of such individual, if such individual has a [social](/usc/42/1397j.md?p=20) security number and is required to provide such number to enroll under such plan (or waiver); and
        - (II) such other information with respect to such individual as determined necessary by the [Secretary](/usc/42/1301.md?p=a-6) for purposes of preventing individuals from simultaneously being enrolled under [State](/usc/42/1396b.md?p=w-7-D) plans (or waivers of such plans) of multiple [States](/usc/42/1396b.md?p=w-7-D);
      - (ii) for the use of such system to prevent such simultaneous enrollment; and
      - (iii) in the case that such system indicates that an individual enrolled or seeking to enroll under such plan (or waiver of such plan) is enrolled under a [State](/usc/42/1396b.md?p=w-7-D) plan (or waiver of such a plan) of another [State](/usc/42/1396b.md?p=w-7-D), for the taking of appropriate action (as determined by the [Secretary](/usc/42/1301.md?p=a-6)) to identify whether such an individual resides in the [State](/usc/42/1396b.md?p=w-7-D) and disenroll an individual from the [State](/usc/42/1396b.md?p=w-7-D) plan of such [State](/usc/42/1396b.md?p=w-7-D) if such individual does not reside in such [State](/usc/42/1396b.md?p=w-7-D) (unless such individual meets such an exception as the [Secretary](/usc/42/1301.md?p=a-6) may specify);
  - (89) provide that the [State](/usc/42/1396b.md?p=w-7-D) shall comply with the eligibility verification requirements under [subsection (ww)](#ww), except that this paragraph shall apply only in the case of the 50 [States](/usc/42/1396b.md?p=w-7-D) and the District of Columbia; and
  - (90) beginning January 1, 2030, provide, with respect to an [active duty relocated individual](#yy-1) (as defined in [subsection (yy)(1)](#yy-1))—
    - (A) that, for purposes of determining eligibility for medical assistance under the [State](/usc/42/1396b.md?p=w-7-D) plan (or waiver of such plan), such [active duty relocated individual](#yy-1) is treated as a resident of the [State](/usc/42/1396b.md?p=w-7-D) unless such individual voluntarily elects not to be so treated for such purposes;
    - (B) that if, at the time of relocation (as described in [subsection (yy)(1)](#yy-1)), such [active duty relocated individual](#yy-1) is on a [home and community-based services waiting list](#yy-2) (as defined in [subsection (yy)(2)](#yy-2)), such individual remains on such list until—
      - (i) the [State](/usc/42/1396b.md?p=w-7-D) completes an assessment and renders a decision with respect to the eligibility of such individual to receive the relevant home and community-based services at the time a slot for such services becomes available and, in the case such decision is a denial of such eligibility, such individual has exhausted the individual’s opportunity for a fair hearing; or
      - (ii) such individual elects to be removed from such list; and
    - (C) payment for medical assistance furnished under the [State](/usc/42/1396b.md?p=w-7-D) plan (or a waiver of the plan) on behalf of such [active duty relocated individual](#yy-1) in the military service relocation [State](/usc/42/1396b.md?p=w-7-D) (as referred to in [subsection (yy)(1)(B)(i)](#yy-1-B-i)), to the extent that such assistance is available in such military service relocation [State](/usc/42/1396b.md?p=w-7-D) in accordance with such guidance as the [Secretary](/usc/42/1301.md?p=a-6) may issue to ensure access to such assistance.

  Notwithstanding [paragraph (5)](#a-5), if on January 1, 1965, and on the date on which a [State](/usc/42/1396b.md?p=w-7-D) submits its plan for approval under this subchapter, the [State agency](/usc/42/1320a–7a.md?p=i-1) which administered or supervised the [administration](/usc/42/1301.md?p=a-10) of the plan of such [State](/usc/42/1396b.md?p=w-7-D) approved under subchapter X (or subchapter XVI, insofar as it relates to the blind) was different from the [State agency](/usc/42/1320a–7a.md?p=i-1) which administered or supervised the [administration](/usc/42/1301.md?p=a-10) of the [State](/usc/42/1396b.md?p=w-7-D) plan approved under subchapter I (or subchapter XVI, insofar as it relates to the aged), the [State agency](/usc/42/1320a–7a.md?p=i-1) which administered or supervised the [administration](/usc/42/1301.md?p=a-10) of such plan approved under subchapter X (or subchapter XVI, insofar as it relates to the blind) may be designated to administer or supervise the [administration](/usc/42/1301.md?p=a-10) of the portion of the [State](/usc/42/1396b.md?p=w-7-D) plan for medical assistance which relates to blind individuals and a different [State agency](/usc/42/1320a–7a.md?p=i-1) may be established or designated to administer or supervise the [administration](/usc/42/1301.md?p=a-10) of the rest of the [State](/usc/42/1396b.md?p=w-7-D) plan for medical assistance; and in such case the part of the plan which each such [agency](/usc/42/1397n–12.md?p=1) administers, or the [administration](/usc/42/1301.md?p=a-10) of which each such [agency](/usc/42/1397n–12.md?p=1) supervises, shall be regarded as a separate plan for purposes of this subchapter (except for purposes of [paragraph (10)](#a-10)). The provisions of paragraphs [(9)(A)](#a-9-A), [(31)](#a-31), and [(33)](#a-33) and of [section 1396b(i)(4) of this title](/usc/42/1396b.md?p=i-4) shall not apply to a religious nonmedical health care institution (as defined in [section 1395x(ss)(1) of this title](/usc/42/1395x.md?p=ss-1)).

  For purposes of [paragraph (10)](#a-10) any individual who, for the month of August 1972, was eligible for or receiving aid or assistance under a [State](/usc/42/1396b.md?p=w-7-D) plan approved under subchapter I, X, XIV, or XVI, or part A of subchapter IV and who for such month was entitled to monthly insurance benefits under subchapter II shall for purposes of this subchapter only be deemed to be eligible for financial aid or assistance for any month thereafter if such individual would have been eligible for financial aid or assistance for such month had the increase in monthly insurance benefits under subchapter II resulting from enactment of Public Law 92–336 not been applicable to such individual.

  The requirement of clause (A) of paragraph (37) with respect to a [State](/usc/42/1396b.md?p=w-7-D) plan may be waived by the [Secretary](/usc/42/1301.md?p=a-6) if he finds that the [State](/usc/42/1396b.md?p=w-7-D) has exercised good faith in trying to meet such requirement. For purposes of this subchapter, any [child](/usc/42/416.md?p=e) who meets the requirements of paragraph (1) or (2) of [section 673(b) of this title](/usc/42/673.md?p=b) shall be deemed to be a dependent [child](/usc/42/416.md?p=e) as defined in [section 606 of this title](/usc/42/606.md) and shall be deemed to be a [recipient](/usc/42/2996a.md?p=6) of aid to [families](/usc/42/12704.md?p=11) with dependent [children](/usc/42/256e.md?p=g-2) under part A of subchapter IV in the [State](/usc/42/1396b.md?p=w-7-D) where such [child](/usc/42/416.md?p=e) resides. Notwithstanding [paragraph (10)(B)](#a-10-B) or any other provision of this subsection, a [State](/usc/42/1396b.md?p=w-7-D) plan shall provide medical assistance with respect to an alien who is not lawfully admitted for permanent residence or otherwise permanently residing in the [United States](/usc/42/1301.md?p=a-2) under color of law only in accordance with [section 1396b(v) of this title](/usc/42/1396b.md?p=v).

- (b) **Approval by Secretary—** The [Secretary](/usc/42/1301.md?p=a-6) shall approve any plan which fulfills the conditions specified in [subsection (a)](#a), except that he shall not approve any plan which imposes, as a condition of eligibility for medical assistance under the plan—
  - (1) an age requirement of more than 65 years; or
  - (2) any residence requirement which excludes any individual who resides in the [State](/usc/42/1396b.md?p=w-7-D), regardless of whether or not the residence is maintained permanently or at a fixed address; or
  - (3) any citizenship requirement which excludes any citizen of the [United States](/usc/42/1301.md?p=a-2).
- (c) **Lower payment levels or applying for benefits as condition of applying for, or receiving, medical assistance—** Notwithstanding [subsection (b)](#b), the [Secretary](/usc/42/1301.md?p=a-6) shall not approve any [State](/usc/42/1396b.md?p=w-7-D) plan for medical assistance if the [State](/usc/42/1396b.md?p=w-7-D) requires individuals described in [subsection (l)(1)](#l-1) to apply for assistance under the [State](/usc/42/1396b.md?p=w-7-D) [program](/usc/42/274l–1.md?p=4) funded under part A of subchapter IV as a condition of applying for or receiving medical assistance under this subchapter.
- (d) **Performance of medical or utilization review functions—** If a [State](/usc/42/1396b.md?p=w-7-D) contracts with an entity which meets the requirements of [section 1320c–1 of this title](/usc/42/1320c–1.md), as determined by the [Secretary](/usc/42/1301.md?p=a-6), or a utilization and quality control peer review organization[^10] having a contract with the [Secretary](/usc/42/1301.md?p=a-6) under part B of subchapter XI for the performance of medical or utilization review functions required under this subchapter of a [State](/usc/42/1396b.md?p=w-7-D) plan with respect to specific services or providers (or services or providers in a [geographic area](/usc/42/11360.md?p=9) of the [State](/usc/42/1396b.md?p=w-7-D)), such requirements shall be deemed to be met for those services or providers (or services or providers in that area) by delegation to such an entity or organization under the contract of the [State](/usc/42/1396b.md?p=w-7-D)’s authority to conduct such review activities if the contract provides for the performance of activities not inconsistent with part B of subchapter XI and provides for such assurances of satisfactory performance by such an entity or organization as the [Secretary](/usc/42/1301.md?p=a-6) may prescribe.
- (e) **Continuation and extension of eligibility of certain individuals; Express Lane option for children—**
  - (1) Beginning April 1, 1990, for provisions relating to the extension of eligibility for medical assistance for certain [families](/usc/42/12704.md?p=11) who have received aid pursuant to a [State](/usc/42/1396b.md?p=w-7-D) plan approved under part A of subchapter IV and have earned [income](/usc/42/292s.md?p=c-4), see [section 1396r–6 of this title](/usc/42/1396r–6.md).
  - (2)
    - (A) In the case of an individual who is enrolled with a [medicaid managed care organization](/usc/42/1396b.md?p=m-1-A) (as defined in [section 1396b(m)(1)(A) of this title](/usc/42/1396b.md?p=m-1-A)), with a [primary care case manager](/usc/42/1396d.md?p=t-2) (as defined in [section 1396d(t) of this title](/usc/42/1396d.md?p=t)), or with an eligible organization with a contract under [section 1395mm of this title](/usc/42/1395mm.md) and who would (but for this paragraph) lose eligibility for benefits under this subchapter before the end of the [minimum enrollment period](#e-2-B) (defined in [subparagraph (B)](#e-2-B)), the [State](/usc/42/1396b.md?p=w-7-D) plan may provide, notwithstanding any other provision of this subchapter, that the individual shall be deemed to continue to be eligible for such benefits until the end of such minimum period, but, except for benefits furnished under [section 1396d(a)(4)(C) of this title](/usc/42/1396d.md), only with respect to such benefits provided to the individual as an enrollee of such organization or entity or by or through the case manager.
    - (B) For purposes of [subparagraph (A)](#e-2-A), the term “minimum enrollment period” means, with respect to an individual’s enrollment with an organization or entity under a [State](/usc/42/1396b.md?p=w-7-D) plan, a period, established by the [State](/usc/42/1396b.md?p=w-7-D), of not more than six months beginning on the date the individual’s enrollment with the organization or entity becomes effective.
  - (3) At the option of the [State](/usc/42/1396b.md?p=w-7-D), any individual who—
    - (A) is 18 years of age or younger and qualifies as a disabled individual under [section 1382c(a) of this title](/usc/42/1382c.md?p=a);
    - (B) with respect to whom there has been a determination by the [State](/usc/42/1396b.md?p=w-7-D) that—
      - (i) the individual requires a level of care provided in a [hospital](/usc/42/1395dd.md?p=e-5), [nursing facility](/usc/42/1396r.md?p=a), or [intermediate care facility for the mentally retarded](/usc/42/1396d.md?p=d),
      - (ii) it is appropriate to provide such care for the individual outside such an institution, and
      - (iii) the estimated amount which would be expended for medical assistance for the individual for such care outside an institution is not greater than the estimated amount which would otherwise be expended for medical assistance for the individual within an appropriate institution; and
    - (C) if the individual were in a medical institution, would be eligible for medical assistance under the [State](/usc/42/1396b.md?p=w-7-D) plan under this subchapter,

    shall be deemed, for purposes of this subchapter only, to be an individual with respect to whom a supplemental security [income](/usc/42/292s.md?p=c-4) payment, or [State](/usc/42/1396b.md?p=w-7-D) supplemental payment, respectively, is being paid under subchapter XVI.

  - (4) A [child](/usc/42/416.md?p=e) born to a woman eligible for and receiving medical assistance under a [State](/usc/42/1396b.md?p=w-7-D) plan on the date of the [child](/usc/42/416.md?p=e)’s birth shall be deemed to have applied for medical assistance and to have been found eligible for such assistance under such plan on the date of such birth and to remain eligible for such assistance for a period of one year. During the period in which a [child](/usc/42/416.md?p=e) is deemed under the preceding sentence to be eligible for medical assistance, the medical assistance eligibility identification number of the mother shall also serve as the identification number of the [child](/usc/42/416.md?p=e), and all [claims](/usc/42/1320a–7a.md?p=i-2) shall be submitted and paid under such number (unless the [State](/usc/42/1396b.md?p=w-7-D) issues a separate identification number for the [child](/usc/42/416.md?p=e) before such period expires). Notwithstanding the preceding sentence, in the case of a [child](/usc/42/416.md?p=e) who is born in the [United States](/usc/42/1301.md?p=a-2) to an alien mother for whom medical assistance for the delivery of the [child](/usc/42/416.md?p=e) is made available pursuant to [section 1396b(v) of this title](/usc/42/1396b.md?p=v), the [State](/usc/42/1396b.md?p=w-7-D) immediately shall issue a separate identification number for the [child](/usc/42/416.md?p=e) upon notification by the [facility](/usc/42/11049.md?p=4) at which such delivery occurred of the [child](/usc/42/416.md?p=e)’s birth.
  - (5) A woman who, while pregnant, is eligible for, has applied for, and has received medical assistance under the [State](/usc/42/1396b.md?p=w-7-D) plan, shall continue to be eligible under the plan, as though she were pregnant, for all pregnancy-related and postpartum medical assistance under the plan, through the end of the month in which the 60-day period (beginning on the last day of her pregnancy) ends.
  - (6) In the case of a pregnant woman described in [subsection (a)(10)](#a-10) who, because of a change in [income](/usc/42/292s.md?p=c-4) of the [family](/usc/42/290ff–4.md?p=d-2) of which she is a member, would not otherwise continue to be described in such subsection, the woman shall be deemed to continue to be an individual described in [subsection (a)(10)(A)(i)(IV)](#a-10-A-i-IV) and [subsection (l)(1)(A)](#l-1-A) without regard to such change of [income](/usc/42/292s.md?p=c-4) through the end of the month in which the 60-day period (beginning on the last day of her pregnancy) ends. The preceding sentence shall not apply in the case of a woman who has been provided ambulatory prenatal care pursuant to [section 1396r–1 of this title](/usc/42/1396r–1.md) during a presumptive eligibility period and is then, in accordance with such section, determined to be ineligible for medical assistance under the [State](/usc/42/1396b.md?p=w-7-D) plan.
  - (7) In the case of an infant or [child](/usc/42/416.md?p=e) described in subparagraph [(B)](#l-1-B), [(C)](#l-1-C), or [(D)](#l-1-D) of subsection (l)(1) or paragraph (2) of [section 1396d(n) of this title](/usc/42/1396d.md?p=n)—
    - (A) who is receiving inpatient services for which medical assistance is provided on the date the infant or [child](/usc/42/416.md?p=e) attains the maximum age with respect to which coverage is provided under the [State](/usc/42/1396b.md?p=w-7-D) plan for such individuals, and
    - (B) who, but for attaining such age, would remain eligible for medical assistance under such subsection,

    the infant or [child](/usc/42/416.md?p=e) shall continue to be treated as an individual described in such respective provision until the end of the stay for which the inpatient services are furnished.

  - (8) If an individual is determined to be a [qualified medicare beneficiary](/usc/42/1396d.md?p=p-1) (as defined in [section 1396d(p)(1) of this title](/usc/42/1396d.md?p=p-1)), such determination shall apply to services furnished after the end of the month in which the determination first occurs. For purposes of payment to a [State](/usc/42/1396b.md?p=w-7-D) under [section 1396b(a) of this title](/usc/42/1396b.md?p=a), such determination shall be considered to be valid for an individual for a period of 12 months, except that a [State](/usc/42/1396b.md?p=w-7-D) may provide for such determinations more frequently, but not more frequently than once every 6 months for an individual.
  - (9)
    - (A) At the option of the [State](/usc/42/1396b.md?p=w-7-D), the plan may include as medical assistance respiratory care services for any individual who—
      - (i) is medically dependent on a ventilator for life support at least six hours per day;
      - (ii) has been so dependent for at least 30 consecutive days (or the maximum number of days authorized under the [State](/usc/42/1396b.md?p=w-7-D) plan, whichever is less) as an inpatient;
      - (iii) but for the availability of respiratory care services, would require respiratory care as an inpatient in a [hospital](/usc/42/1395dd.md?p=e-5), [nursing facility](/usc/42/1396r.md?p=a), or [intermediate care facility for the mentally retarded](/usc/42/1396d.md?p=d) and would be eligible to have payment made for such inpatient care under the [State](/usc/42/1396b.md?p=w-7-D) plan;
      - (iv) has adequate [social](/usc/42/1397j.md?p=20) support services to be cared for at home; and
      - (v) wishes to be cared for at home.
    - (B) The requirements of [subparagraph (A)(ii)](#e-9-A-ii) may be satisfied by a continuous stay in one or more [hospitals](/usc/42/1395dd.md?p=e-5), [nursing facilities](/usc/42/1396r.md?p=a), or intermediate care [facilities](/usc/42/11049.md?p=4) for the mentally retarded.
    - (C) For purposes of this paragraph, respiratory care services means services provided on a part-time basis in the home of the individual by a respiratory therapist or other health care professional trained in respiratory therapy (as determined by the [State](/usc/42/1396b.md?p=w-7-D)), payment for which is not otherwise included within other items and services furnished to such individual as medical assistance under the plan.
  - (10)
    - (A) The fact that an individual, [child](/usc/42/416.md?p=e), or pregnant woman may be denied aid under part A of subchapter IV pursuant to [section 602(a)(43)](/usc/42/602.md)[^1] of this title shall not be construed as denying (or permitting a [State](/usc/42/1396b.md?p=w-7-D) to deny) medical assistance under this subchapter to such individual, [child](/usc/42/416.md?p=e), or woman who is eligible for assistance under this subchapter on a basis other than the receipt of aid under such part.
    - (B) If an individual, [child](/usc/42/416.md?p=e), or pregnant woman is receiving aid under part A of subchapter IV and such aid is terminated pursuant to [section 602(a)(43)](/usc/42/602.md)[^1] of this title, the [State](/usc/42/1396b.md?p=w-7-D) may not discontinue medical assistance under this subchapter for the individual, [child](/usc/42/416.md?p=e), or woman until the [State](/usc/42/1396b.md?p=w-7-D) has determined that the individual, [child](/usc/42/416.md?p=e), or woman is not eligible for assistance under this subchapter on a basis other than the receipt of aid under such part.
  - (11)
    - (A) In the case of an individual who is enrolled with a [group health plan](/usc/42/1320d–9.md?p=b-2) under [section 1396e of this title](/usc/42/1396e.md) and who would (but for this paragraph) lose eligibility for benefits under this subchapter before the end of the [minimum enrollment period](#e-2-B) (defined in [subparagraph (B)](#e-11-B)), the [State](/usc/42/1396b.md?p=w-7-D) plan may provide, notwithstanding any other provision of this subchapter, that the individual shall be deemed to continue to be eligible for such benefits until the end of such minimum period, but only with respect to such benefits provided to the individual as an enrollee of such plan.
    - (B) For purposes of [subparagraph (A)](#e-11-A), the term “[minimum enrollment period](#e-2-B)” means, with respect to an individual’s enrollment with a [group health plan](/usc/42/1320d–9.md?p=b-2), a period established by the [State](/usc/42/1396b.md?p=w-7-D), of not more than 6 months beginning on the date the individual’s enrollment under the plan becomes effective.
  - (12) **1 year of continuous eligibility for children.—** The [State](/usc/42/1396b.md?p=w-7-D) plan (or waiver of such [State](/usc/42/1396b.md?p=w-7-D) plan) shall provide that an individual who is under the age of 19 and who is determined to be eligible for benefits under a [State](/usc/42/1396b.md?p=w-7-D) plan (or waiver of such plan) approved under this subchapter under [subsection (a)(10)(A)](#a-10-A) shall remain eligible for such benefits until the earlier of—
    - (A) the end of the 12-month period beginning on the date of such determination;
    - (B) the time that such individual attains the age of 19; or
    - (C) the date that such individual ceases to be a resident of such [State](/usc/42/1396b.md?p=w-7-D).
  - (13) **Express Lane Option.—**
    - (A) **In general.—**
      - (i) **Option to use a finding from an express lane agency.—** At the option of the [State](#e-13-F-v-I), the [State](#e-13-F-v-I) plan may provide that in determining eligibility under this subchapter for a [child](#e-13-G) (as defined in [subparagraph (G)](#e-13-G)), the [State](#e-13-F-v-I) may rely on a finding made within a reasonable period (as determined by the [State](#e-13-F-v-I)) from an [Express Lane agency](#e-13-F-i) (as defined in [subparagraph (F)](#e-13-F)) when it determines whether a [child](#e-13-G) satisfies one or more components of eligibility for medical assistance under this subchapter. The [State](#e-13-F-v-I) may rely on a finding from an [Express Lane agency](#e-13-F-i) notwithstanding sections [1396a(a)(46)(B)](#a-46-B) and [1320b–7(d)](/usc/42/1320b–7.md?p=d) of this title or any differences in budget [unit](/usc/42/1395w–114b.md?p=g-2), disregard, deeming or other methodology, if the following requirements are met:
        - (I) **Prohibition on determining children ineligible for coverage.—** If a finding from an [Express Lane agency](#e-13-F-i) would result in a determination that a [child](#e-13-G) does not satisfy an eligibility requirement for medical assistance under this subchapter and for [child health assistance](/usc/42/1397ll.md?p=d-1) under subchapter XXI, the [State](#e-13-F-v-I) shall determine eligibility for assistance using its regular procedures.
        - (II) **Notice requirement.—** For any [child](#e-13-G) who is found eligible for medical assistance under the [State](#e-13-F-v-I) plan under this subchapter or [child health assistance](/usc/42/1397ll.md?p=d-1) under subchapter XXI and who is subject to premiums based on an [Express Lane agency](#e-13-F-i)’s finding of such [child](#e-13-G)’s [income](/usc/42/292s.md?p=c-4) level, the [State](#e-13-F-v-I) shall provide notice that the [child](#e-13-G) may qualify for lower premium payments if evaluated by the [State](#e-13-F-v-I) using its regular policies and of the procedures for requesting such an evaluation.
        - (III) **Compliance with screen and enroll requirement.—** The [State](#e-13-F-v-I) shall satisfy the requirements under subparagraphs (A) and (B) of [section 1397bb(b)(3) of this title](/usc/42/1397bb.md?p=b-3) (relating to screen and enroll) before enrolling a [child](#e-13-G) in [child health assistance](/usc/42/1397ll.md?p=d-1) under subchapter XXI. At its option, the [State](#e-13-F-v-I) may fulfill such requirements in accordance with either option provided under subparagraph (C) of this paragraph.
        - (IV) **Verification of citizenship or nationality status.—** The [State](#e-13-F-v-I) shall satisfy the requirements of section [1396a(a)(46)(B)](#a-46-B) or [1397ee(c)(9)](/usc/42/1397ee.md?p=c-9) of this title, as applicable for verifications of citizenship or nationality status.
        - (V) **Coding.—** The [State](#e-13-F-v-I) meets the requirements of [subparagraph (E)](#e-13-E).
      - (ii) **Option to apply to renewals and redeterminations.—** The [State](#e-13-F-v-I) may apply the provisions of this paragraph when conducting initial determinations of eligibility, redeterminations of eligibility, or both, as described in the [State](#e-13-F-v-I) plan.
    - (B) **Rules of construction.—** Nothing in this paragraph shall be construed—
      - (i) to limit or prohibit a [State](#e-13-F-v-I) from taking any actions otherwise permitted under this subchapter or subchapter XXI in determining eligibility for or enrolling [children](/usc/42/256e.md?p=g-2) into medical assistance under this subchapter or [child health assistance](/usc/42/1397ll.md?p=d-1) under subchapter XXI; or
      - (ii) to modify the limitations in [section 1396a(a)(5) of this title](#a-5) concerning the [agencies](/usc/42/1397n–12.md?p=1) that may make a determination of eligibility for medical assistance under this subchapter.
    - (C) **Options for satisfying the screen and enroll requirement.—**
      - (i) **In general.—** With respect to a [child](#e-13-G) whose eligibility for medical assistance under this subchapter or for [child health assistance](/usc/42/1397ll.md?p=d-1) under subchapter XXI has been evaluated by a [State agency](/usc/42/1320a–7a.md?p=i-1) using an [income](/usc/42/292s.md?p=c-4) finding from an [Express Lane agency](#e-13-F-i), a [State](#e-13-F-v-I) may carry out its duties under subparagraphs (A) and (B) of [section 1397bb(b)(3) of this title](/usc/42/1397bb.md?p=b-3) (relating to screen and enroll) in accordance with either [clause (ii)](#e-13-C-ii) or [clause (iii)](#e-13-C-iii).
      - (ii) **Establishing a screening threshold.—**
        - (I) **In general.—** Under this clause, the [State](#e-13-F-v-I) establishes a screening threshold set as a percentage of the Federal [poverty level](/usc/42/8622.md?p=8) that exceeds the highest [income](/usc/42/292s.md?p=c-4) threshold applicable under this subchapter to the [child](#e-13-G) by a minimum of 30 percentage points or, at [State](#e-13-F-v-I) option, a higher number of percentage points that reflects the value (as determined by the [State](#e-13-F-v-I) and described in the [State](#e-13-F-v-I) plan) of any differences between [income](/usc/42/292s.md?p=c-4) methodologies used by the [program](/usc/42/274l–1.md?p=4) administered by the [Express Lane agency](#e-13-F-i) and the methodologies used by the [State](#e-13-F-v-I) in determining eligibility for medical assistance under this subchapter.
        - (II) **Children with income not above threshold.—** If the [income](/usc/42/292s.md?p=c-4) of a [child](#e-13-G) does not exceed the screening threshold, the [child](#e-13-G) is deemed to satisfy the [income](/usc/42/292s.md?p=c-4) eligibility criteria for medical assistance under this subchapter regardless of whether such [child](#e-13-G) would otherwise satisfy such criteria.
        - (III) **Children with income above threshold.—** If the [income](/usc/42/292s.md?p=c-4) of a [child](#e-13-G) exceeds the screening threshold, the [child](#e-13-G) shall be considered to have an [income](/usc/42/292s.md?p=c-4) above the [Medicaid applicable income level](/usc/42/1397jj.md?p=b-4) described in [section 1397jj(b)(4) of this title](/usc/42/1397jj.md?p=b-4) and to satisfy the requirement under [section 1397jj(b)(1)(C) of this title](/usc/42/1397jj.md?p=b-1-C) (relating to the requirement that CHIP matching [funds](/usc/42/12854.md?p=3) be used only for [children](/usc/42/256e.md?p=g-2) not eligible for [Medicaid](/usc/42/1396b.md?p=w-3-E-iii-III-aa)). If such a [child](#e-13-G) is enrolled in [child health assistance](/usc/42/1397ll.md?p=d-1) under subchapter XXI, the [State](#e-13-F-v-I) shall provide the [parent](#k-3), guardian, or custodial relative with the following:
          - (aa) Notice that the [child](#e-13-G) may be eligible to receive medical assistance under the [State](#e-13-F-v-I) plan under this subchapter if evaluated for such assistance under the [State](#e-13-F-v-I)’s regular procedures and notice of the process through which a [parent](#k-3), guardian, or custodial relative can request that the [State](#e-13-F-v-I) evaluate the [child](#e-13-G)’s eligibility for medical assistance under this subchapter using such regular procedures.
          - (bb) A description of differences between the medical assistance provided under this subchapter and [child health assistance](/usc/42/1397ll.md?p=d-1) under subchapter XXI, [including](/usc/42/1301.md?p=b) differences in [cost-sharing](/usc/42/18022.md?p=c-3-A) requirements and covered benefits.
      - (iii) **Temporary enrollment in chip pending screen and enroll.—**
        - (I) **In general.—** Under this clause, a [State](#e-13-F-v-I) enrolls a [child](#e-13-G) in [child health assistance](/usc/42/1397ll.md?p=d-1) under subchapter XXI for a temporary period if the [child](#e-13-G) appears eligible for such assistance based on an [income](/usc/42/292s.md?p=c-4) finding by an [Express Lane agency](#e-13-F-i).
        - (II) **Determination of eligibility.—** During such temporary enrollment period, the [State](#e-13-F-v-I) shall determine the [child](#e-13-G)’s eligibility for [child health assistance](/usc/42/1397ll.md?p=d-1) under subchapter XXI or for medical assistance under this subchapter in accordance with this clause.
        - (III) **Prompt follow up.—** In making such a determination, the [State](#e-13-F-v-I) shall take prompt action to determine whether the [child](#e-13-G) should be enrolled in medical assistance under this subchapter or [child health assistance](/usc/42/1397ll.md?p=d-1) under subchapter XXI pursuant to subparagraphs (A) and (B) of [section 1397bb(b)(3) of this title](/usc/42/1397bb.md?p=b-3) (relating to screen and enroll).
        - (IV) **Requirement for simplified determination.—** In making such a determination, the [State](#e-13-F-v-I) shall use procedures that, to the maximum feasible extent, reduce the burden imposed on the individual of such determination. Such procedures may not require the [child](#e-13-G)’s [parent](#k-3), guardian, or custodial relative to provide or verify information that already has been provided to the [State agency](/usc/42/1320a–7a.md?p=i-1) by an [Express Lane agency](#e-13-F-i) or another source of information unless the [State agency](/usc/42/1320a–7a.md?p=i-1) has reason to believe the information is erroneous.
        - (V) **Availability of chip matching funds during temporary enrollment period.—** Medical assistance for items and services that are provided to a [child](#e-13-G) enrolled in subchapter XXI during a temporary enrollment period under this clause shall be treated as [child health assistance](/usc/42/1397ll.md?p=d-1) under such subchapter.
    - (D) **Option for automatic enrollment.—**
      - (i) **In general.—** The [State](#e-13-F-v-I) may initiate and determine eligibility for medical assistance under the [State Medicaid plan](#e-13-F-v-V) or for [child health assistance](/usc/42/1397ll.md?p=d-1) under the [State CHIP plan](#e-13-F-v-III) without a [program](/usc/42/274l–1.md?p=4) application from, or on behalf of, the [child](#e-13-G) based on data obtained from sources other than the [child](#e-13-G) (or the [child](#e-13-G)’s [family](/usc/42/290ff–4.md?p=d-2)), but a [child](#e-13-G) can only be automatically enrolled in the [State Medicaid plan](#e-13-F-v-V) or the [State CHIP plan](#e-13-F-v-III) if the [child](#e-13-G) or the [family](/usc/42/290ff–4.md?p=d-2) affirmatively consents to being enrolled through affirmation in writing, by telephone, orally, through electronic signature, or through any other means specified by the [Secretary](/usc/42/1301.md?p=a-6) or by signature on an [Express Lane agency](#e-13-F-i) application, if the requirement of [clause (ii)](#e-13-D-ii) is met.
      - (ii) **Information requirement.—** The requirement of this clause is that the [State](#e-13-F-v-I) informs the [parent](#k-3), guardian, or custodial relative of the [child](#e-13-G) of the services that will be covered, appropriate methods for using such services, premium or other cost sharing charges (if any) that apply, medical support obligations (under [section 1396k(a) of this title](/usc/42/1396k.md?p=a)) created by enrollment (if applicable), and the actions the [parent](#k-3), guardian, or relative must take to maintain enrollment and renew coverage.
    - (E) **Coding; application to enrollment error rates.—**
      - (i) **In general.—** For purposes of subparagraph (A)(iv),[^11] the requirement of this subparagraph for a [State](#e-13-F-v-I) is that the [State](#e-13-F-v-I) agrees to—
        - (I) assign such codes as the [Secretary](/usc/42/1301.md?p=a-6) shall require to the [children](/usc/42/256e.md?p=g-2) who are enrolled in the [State Medicaid plan](#e-13-F-v-V) or the [State CHIP plan](#e-13-F-v-III) through reliance on a finding made by an [Express Lane agency](#e-13-F-i) for the duration of the [State](#e-13-F-v-I)’s election under this paragraph;
        - (II) annually provide the [Secretary](/usc/42/1301.md?p=a-6) with a statistically valid sample (that is approved by [Secretary](/usc/42/1301.md?p=a-6)) of the [children](/usc/42/256e.md?p=g-2) enrolled in such plans through reliance on such a finding by conducting a full [Medicaid](/usc/42/1396b.md?p=w-3-E-iii-III-aa) eligibility review of the [children](/usc/42/256e.md?p=g-2) identified for such sample for purposes of determining an eligibility [error rate](#e-13-E-iv) (as described in [clause (iv)](#e-13-E-iv)) with respect to the enrollment of such [children](/usc/42/256e.md?p=g-2) (and shall not include such [children](/usc/42/256e.md?p=g-2) in any data or samples used for purposes of complying with a [Medicaid](/usc/42/1396b.md?p=w-3-E-iii-III-aa) Eligibility Quality Control (MEQC) review or a payment [error rate](#e-13-E-iv) measurement (PERM) requirement);
        - (III) submit the [error rate](#e-13-E-iv) determined under [subclause (II)](#e-13-E-i-II) to the [Secretary](/usc/42/1301.md?p=a-6);
        - (IV) if such [error rate](#e-13-E-iv) exceeds 3 percent for either of the first 2 fiscal years in which the [State](#e-13-F-v-I) elects to apply this paragraph, demonstrate to the satisfaction of the [Secretary](/usc/42/1301.md?p=a-6) the specific corrective actions implemented by the [State](#e-13-F-v-I) to improve upon such [error rate](#e-13-E-iv); and
        - (V) if such [error rate](#e-13-E-iv) exceeds 3 percent for any fiscal year in which the [State](#e-13-F-v-I) elects to apply this paragraph, a reduction in the amount otherwise payable to the [State](#e-13-F-v-I) under [section 1396b(a) of this title](/usc/42/1396b.md?p=a) for quarters for that fiscal year, equal to the total amount of erroneous excess payments determined for the fiscal year only with respect to the [children](/usc/42/256e.md?p=g-2) included in the sample for the fiscal year that are in excess of a 3 percent [error rate](#e-13-E-iv) with respect to such [children](/usc/42/256e.md?p=g-2).
      - (ii) **No punitive action based on error rate.—** The [Secretary](/usc/42/1301.md?p=a-6) shall not apply the [error rate](#e-13-E-iv) derived from the sample under [clause (i)](#e-13-E-i) to the entire population of [children](/usc/42/256e.md?p=g-2) enrolled in the [State Medicaid plan](#e-13-F-v-V) or the [State CHIP plan](#e-13-F-v-III) through reliance on a finding made by an [Express Lane agency](#e-13-F-i), or to the population of [children](/usc/42/256e.md?p=g-2) enrolled in such plans on the basis of the [State](#e-13-F-v-I)’s regular procedures for determining eligibility, or penalize the [State](#e-13-F-v-I) on the basis of such [error rate](#e-13-E-iv) in any manner other than the reduction of payments provided for under [clause (i)(V)](#e-13-E-i-V).
      - (iii) **Rule of construction.—** Nothing in this paragraph shall be construed as relieving a [State](#e-13-F-v-I) that elects to apply this paragraph from being subject to a penalty under [section 1396b(u) of this title](/usc/42/1396b.md?p=u), for payments made under the [State Medicaid plan](#e-13-F-v-V) with respect to ineligible individuals and [families](/usc/42/12704.md?p=11) that are determined to exceed the [error rate](#e-13-E-iv) permitted under that section (as determined without regard to the [error rate](#e-13-E-iv) determined under [clause (i)(II)](#e-13-E-i-II)).
      - (iv) **Error rate defined.—** In this subparagraph, the term “error rate” means the rate of erroneous excess payments for medical assistance (as defined in [section 1396b(u)(1)(D) of this title](/usc/42/1396b.md?p=u-1-D)) for the period involved, except that such payments shall be limited to individuals for which eligibility determinations are made under this paragraph and except that in applying this paragraph under subchapter XXI, there shall be substituted for references to provisions of this subchapter corresponding provisions within subchapter XXI.
    - (F) **Express lane agency.—**
      - (i) **In general.—** In this paragraph, the term “Express Lane agency” means a [public agency](/usc/42/11851.md?p=8) that—
        - (I) is determined by the [State Medicaid agency](#e-13-F-v-IV) or the [State CHIP agency](#e-13-F-v-II) (as applicable) to be capable of making the determinations of one or more eligibility requirements described in [subparagraph (A)(i)](#e-13-A-i);
        - (II) is identified in the [State Medicaid plan](#e-13-F-v-V) or the [State CHIP plan](#e-13-F-v-III); and
        - (III) notifies the [child](#e-13-G)’s [family](/usc/42/290ff–4.md?p=d-2)—
          - (aa) of the information which shall be disclosed in accordance with this paragraph;
          - (bb) that the information disclosed will be used solely for purposes of determining eligibility for medical assistance under the [State Medicaid plan](#e-13-F-v-V) or for [child health assistance](/usc/42/1397ll.md?p=d-1) under the [State CHIP plan](#e-13-F-v-III); and
          - (cc) that the [family](/usc/42/290ff–4.md?p=d-2) may elect to not have the information disclosed for such purposes; and
        - (IV) enters into, or is subject to, an interagency [agreement](/usc/42/1320b–8.md?p=a-3-A) to limit the disclosure and use of the information disclosed.
      - (ii) **Inclusion of specific public agencies and Indian tribes and tribal organizations.—** Such term [includes](/usc/42/1301.md?p=b) the following:
        - (I) A [public agency](/usc/42/11851.md?p=8) that determines eligibility for assistance under any of the following:
          - (aa) The temporary assistance for needy [families](/usc/42/12704.md?p=11) [program](/usc/42/274l–1.md?p=4) funded under part A of subchapter IV.
          - (bb) A [State](#e-13-F-v-I) [program](/usc/42/274l–1.md?p=4) funded under part D of subchapter IV.
          - (cc) The [State Medicaid plan](#e-13-F-v-V).
          - (dd) The [State CHIP plan](#e-13-F-v-III).
          - (ee) The Food and Nutrition Act of 2008 ([7 U.S.C. 2011](/usc/7/2011.md) et seq.).
          - (ff) The Head Start Act [[42 U.S.C. 9831](/usc/42/9831.md) et seq.].
          - (gg) The Richard B. Russell National [School](/usc/42/6372.md?p=1) Lunch Act ([42 U.S.C. 1751](/usc/42/1751.md) et seq.).
          - (hh) The [Child](#e-13-G) Nutrition Act of 1966 ([42 U.S.C. 1771](/usc/42/1771.md) et seq.).
          - (ii) The [Child](#e-13-G) Care and Development Block Grant Act of 1990 [[42 U.S.C. 9857](/usc/42/9857.md) et seq.].
          - (jj) The Stewart B. McKinney Homeless Assistance Act[^1] ([42 U.S.C. 11301](/usc/42/11301.md) et seq.).
          - (kk) The [United States](/usc/42/1301.md?p=a-2) Housing Act of 1937 ([42 U.S.C. 1437](/usc/42/1437.md) et seq.).
          - (ll) The Native American [Housing Assistance](/usc/42/13641.md?p=3) and Self-Determination Act of 1996 ([25 U.S.C. 4101](/usc/25/4101.md) et seq.).
        - (II) A [State](#e-13-F-v-I)-specified governmental [agency](/usc/42/1397n–12.md?p=1) that has fiscal liability or legal responsibility for the accuracy of the eligibility determination findings relied on by the [State](#e-13-F-v-I).
        - (III) A [public agency](/usc/42/11851.md?p=8) that is subject to an interagency [agreement](/usc/42/1320b–8.md?p=a-3-A) limiting the disclosure and use of the information disclosed for purposes of determining eligibility under the [State Medicaid plan](#e-13-F-v-V) or the [State CHIP plan](#e-13-F-v-III).
        - (IV) The [Indian](/usc/42/6862.md?p=6) Health Service, an [Indian Tribe](/usc/42/1397j.md?p=12-A), [Tribal Organization](/usc/42/629a.md?p=a-6), or Urban [Indian](/usc/42/6862.md?p=6) Organization (as defined in [section 1320b–9(c) of this title](/usc/42/1320b–9.md?p=c)).
      - (iii) **Exclusions.—** Such term does not include an [agency](/usc/42/1397n–12.md?p=1) that determines eligibility for a [program](/usc/42/274l–1.md?p=4) established under the [Social](/usc/42/1397j.md?p=20) Services Block [Grant](/usc/42/1397j.md?p=10) established under subchapter XX or a private, for-profit organization.
      - (iv) **Rules of construction.—** Nothing in this paragraph shall be construed as—
        - (I) exempting a [State Medicaid agency](#e-13-F-v-IV) from complying with the requirements of [section 1396a(a)(4) of this title](#a-4) relating to merit-based personnel [standards](/usc/42/1320d.md?p=7) for [employees](/usc/42/1320a–7h.md?p=e-7) of the [State Medicaid agency](#e-13-F-v-IV) and safeguards against conflicts of interest);[^12] or
        - (II) authorizing a [State Medicaid agency](#e-13-F-v-IV) that elects to use [Express Lane agencies](#e-13-F-i) under this subparagraph to use the Express Lane option to avoid complying with such requirements for purposes of making eligibility determinations under the [State Medicaid plan](#e-13-F-v-V).
      - (v) **Additional definitions.—** In this paragraph:
        - (I) **State.—** The term “State” means 1 of the 50 States or the District of Columbia.
        - (II) **State chip agency.—** The term “State CHIP agency” means the [State agency](/usc/42/1320a–7a.md?p=i-1) responsible for administering the [State CHIP plan](#e-13-F-v-III).
        - (III) **State chip plan.—** The term “State CHIP plan” means the [State child health plan](/usc/42/1397jj.md?p=c-7) established under subchapter XXI and [includes](/usc/42/1301.md?p=b) any waiver of such plan.
        - (IV) **State medicaid agency.—** The term “State Medicaid agency” means the [State agency](/usc/42/1320a–7a.md?p=i-1) responsible for administering the [State Medicaid plan](#e-13-F-v-V).
        - (V) **State medicaid plan.—** The term “State Medicaid plan” means the [State](#e-13-F-v-I) plan established under subchapter XIX and [includes](/usc/42/1301.md?p=b) any waiver of such plan.
    - (G) **Child defined.—** For purposes of this paragraph, the term “child” means an individual under 19 years of age, or, at the option of a [State](#e-13-F-v-I), such higher age, not to exceed 21 years of age, as the [State](#e-13-F-v-I) may elect.
    - (H) **State option to rely on state income tax data or return.—** At the option of the [State](#e-13-F-v-I), a finding from an [Express Lane agency](#e-13-F-i) may include gross [income](/usc/42/292s.md?p=c-4) or adjusted gross [income](/usc/42/292s.md?p=c-4) shown by [State](#e-13-F-v-I) [income](/usc/42/292s.md?p=c-4) tax records or returns.
    - (I) **Application.—** This paragraph shall not apply with respect to eligibility determinations made after September 30, 2029.
  - (14) **Income determined using modified adjusted gross income.—**
    - (A) **In general.—** Notwithstanding [subsection (r)](#r) or any other provision of this subchapter, except as provided in [subparagraph (D)](#e-14-D), for purposes of determining [income](/usc/42/292s.md?p=c-4) eligibility for medical assistance under the [State](/usc/42/1396b.md?p=w-7-D) plan or under any waiver of such plan and for any other purpose applicable under the plan or waiver for which a determination of [income](/usc/42/292s.md?p=c-4) is required, [including](/usc/42/1301.md?p=b) with respect to the imposition of premiums and [cost-sharing](/usc/42/18022.md?p=c-3-A), a [State](/usc/42/1396b.md?p=w-7-D) shall use the [modified adjusted gross income](#e-14-G) of an individual and, in the case of an individual in a [family](/usc/42/290ff–4.md?p=d-2) greater than 1, the [household income](#e-14-G) of such [family](/usc/42/290ff–4.md?p=d-2). A [State](/usc/42/1396b.md?p=w-7-D) shall establish [income](/usc/42/292s.md?p=c-4) eligibility thresholds for populations to be eligible for medical assistance under the [State](/usc/42/1396b.md?p=w-7-D) plan or a waiver of the plan using [modified adjusted gross income](#e-14-G) and [household income](#e-14-G) that are not less than the effective [income](/usc/42/292s.md?p=c-4) eligibility levels that applied under the [State](/usc/42/1396b.md?p=w-7-D) plan or waiver on March 23, 2010. For purposes of complying with the maintenance of effort requirements under [subsection (gg)](#gg) during the transition to [modified adjusted gross income](#e-14-G) and [household income](#e-14-G), a [State](/usc/42/1396b.md?p=w-7-D) shall, working with the [Secretary](/usc/42/1301.md?p=a-6), establish an equivalent [income](/usc/42/292s.md?p=c-4) test that ensures individuals eligible for medical assistance under the [State](/usc/42/1396b.md?p=w-7-D) plan or under a waiver of the plan on March 23, 2010, do not lose coverage under the [State](/usc/42/1396b.md?p=w-7-D) plan or under a waiver of the plan. The [Secretary](/usc/42/1301.md?p=a-6) may waive such provisions of this subchapter and subchapter XXI as are necessary to ensure that [States](/usc/42/1396b.md?p=w-7-D) establish [income](/usc/42/292s.md?p=c-4) and eligibility determination systems that protect beneficiaries.
    - (B) **No income or expense disregards.—** Subject to [subparagraph (I)](#e-14-I), no type of expense, block, or other [income](/usc/42/292s.md?p=c-4) disregard shall be applied by a [State](/usc/42/1396b.md?p=w-7-D) to determine [income](/usc/42/292s.md?p=c-4) eligibility for medical assistance under the [State](/usc/42/1396b.md?p=w-7-D) plan or under any waiver of such plan or for any other purpose applicable under the plan or waiver for which a determination of [income](/usc/42/292s.md?p=c-4) is required.
    - (C) **No assets test.—** A [State](/usc/42/1396b.md?p=w-7-D) shall not apply any assets or resources test for purposes of determining eligibility for medical assistance under the [State](/usc/42/1396b.md?p=w-7-D) plan or under a waiver of the plan.
    - (D) **Exceptions.—**
      - (i) **Individuals eligible because of other aid or assistance, elderly individuals, medically needy individuals, and individuals eligible for medicare cost-sharing.—** Subparagraphs [(A)](#e-14-A), [(B)](#e-14-B), and [(C)](#e-14-C) shall not apply to the determination of eligibility under the [State](/usc/42/1396b.md?p=w-7-D) plan or under a waiver for medical assistance for the following:
        - (I) Individuals who are eligible for medical assistance under the [State](/usc/42/1396b.md?p=w-7-D) plan or under a waiver of the plan on a basis that does not require a determination of [income](/usc/42/292s.md?p=c-4) by the [State agency](/usc/42/1320a–7a.md?p=i-1) administering the [State](/usc/42/1396b.md?p=w-7-D) plan or waiver, [including](/usc/42/1301.md?p=b) as a result of eligibility for, or receipt of, other Federal or [State](/usc/42/1396b.md?p=w-7-D) aid or assistance, individuals who are eligible on the basis of receiving (or being treated as if receiving) [supplemental security income benefits](/usc/42/1382i.md?p=b-2) under subchapter XVI, and individuals who are eligible as a result of being or being deemed to be a [child](/usc/42/416.md?p=e) in foster care under the responsibility of the [State](/usc/42/1396b.md?p=w-7-D).
        - (II) Individuals who have attained age 65.
        - (III) Individuals who qualify for medical assistance under the [State](/usc/42/1396b.md?p=w-7-D) plan or under any waiver of such plan on the basis of being blind or disabled (or being treated as being blind or disabled) without regard to whether the individual is eligible for [supplemental security income benefits](/usc/42/1382i.md?p=b-2) under subchapter XVI on the basis of being blind or disabled and [including](/usc/42/1301.md?p=b) an individual who is eligible for medical assistance on the basis of [paragraph (3)](#e-3).
        - (IV) Individuals described in [subsection (a)(10)(C)](#a-10-C).
        - (V) Individuals described in any clause of [subsection (a)(10)(E)](#a-10-E).
      - (ii) **Express lane agency findings.—** In the case of a [State](/usc/42/1396b.md?p=w-7-D) that elects the Express Lane option under [paragraph (13)](#e-13), notwithstanding subparagraphs [(A)](#e-14-A), [(B)](#e-14-B), and [(C)](#e-14-C), the [State](/usc/42/1396b.md?p=w-7-D) may rely on a finding made by an Express Lane agency in accordance with that paragraph relating to the [income](/usc/42/292s.md?p=c-4) of an individual for purposes of determining the individual’s eligibility for medical assistance under the [State](/usc/42/1396b.md?p=w-7-D) plan or under a waiver of the plan.
      - (iii) **Medicare prescription drug subsidies determinations.—** Subparagraphs [(A)](#e-14-A), [(B)](#e-14-B), and [(C)](#e-14-C) shall not apply to any determinations of eligibility for premium and [cost-sharing](/usc/42/18022.md?p=c-3-A) subsidies under and in accordance with [section 1395w–114 of this title](/usc/42/1395w–114.md) made by the [State](/usc/42/1396b.md?p=w-7-D) pursuant to [section 1396u–5(a)(2) of this title](/usc/42/1396u–5.md?p=a-2).
      - (iv) **Long-term care.—**
        - (I) **In general.—** Subparagraphs [(A)](#e-14-A), [(B)](#e-14-B), and [(C)](#e-14-C) shall not apply to any determinations of eligibility of individuals for purposes of medical assistance for [nursing facility services](/usc/42/1396d.md?p=f), a level of care in any institution equivalent to that of [nursing facility services](/usc/42/1396d.md?p=f), home or community-based services furnished under a waiver or [State](/usc/42/1396b.md?p=w-7-D) plan amendment under [section 1396n of this title](/usc/42/1396n.md) or a waiver under [section 1315 of this title](/usc/42/1315.md), and services described in [section 1396p(c)(1)(C)(ii) of this title](/usc/42/1396p.md?p=c-1-C-ii).
        - (II) **Application of home equity interest limit.—** [Section 1396p(f) of this title](/usc/42/1396p.md?p=f) shall apply for purposes of determining the eligibility of an individual for medical assistance with respect to [nursing facility services](/usc/42/1396d.md?p=f) or other [long-term care](/usc/42/1397j.md?p=14-A) services.
      - (v) **Grandfather of current enrollees until date of next regular redetermination.—** An individual who, on January 1, 2014, is enrolled in the [State](/usc/42/1396b.md?p=w-7-D) plan or under a waiver of the plan and who would be determined ineligible for medical assistance solely because of the application of the [modified adjusted gross income](#e-14-G) or [household income](#e-14-G) [standard](/usc/42/1320d.md?p=7) described in [subparagraph (A)](#e-14-A), shall remain eligible for medical assistance under the [State](/usc/42/1396b.md?p=w-7-D) plan or waiver (and subject to the same premiums and [cost-sharing](/usc/42/18022.md?p=c-3-A) as applied to the individual on that date) through March 31, 2014, or the date on which the individual’s next regularly scheduled redetermination of eligibility is to occur, whichever is later.
    - (E) **Transition planning and oversight.—** Each [State](/usc/42/1396b.md?p=w-7-D) shall submit to the [Secretary](/usc/42/1301.md?p=a-6) for the [Secretary](/usc/42/1301.md?p=a-6)’s approval the [income](/usc/42/292s.md?p=c-4) eligibility thresholds proposed to be established using [modified adjusted gross income](#e-14-G) and [household income](#e-14-G), the methodologies and procedures to be used to determine [income](/usc/42/292s.md?p=c-4) eligibility using [modified adjusted gross income](#e-14-G) and [household income](#e-14-G) and, if applicable, a [State](/usc/42/1396b.md?p=w-7-D) plan amendment establishing an optional eligibility [category](/usc/42/1395w–4.md?p=j-1) under [subsection (a)(10)(A)(ii)(XX)](#a-10-A-ii-XX). To the extent practicable, the [State](/usc/42/1396b.md?p=w-7-D) shall use the same methodologies and procedures for purposes of making such determinations as the [State](/usc/42/1396b.md?p=w-7-D) used on March 23, 2010. The [Secretary](/usc/42/1301.md?p=a-6) shall ensure that the [income](/usc/42/292s.md?p=c-4) eligibility thresholds proposed to be established using [modified adjusted gross income](#e-14-G) and [household income](#e-14-G), [including](/usc/42/1301.md?p=b) under the eligibility [category](/usc/42/1395w–4.md?p=j-1) established under [subsection (a)(10)(A)(ii)(XX)](#a-10-A-ii-XX), and the methodologies and procedures proposed to be used to determine [income](/usc/42/292s.md?p=c-4) eligibility, will not result in [children](/usc/42/256e.md?p=g-2) who would have been eligible for medical assistance under the [State](/usc/42/1396b.md?p=w-7-D) plan or under a waiver of the plan on March 23, 2010, no longer being eligible for such assistance.
    - (F) **Limitation on secretarial authority.—** The [Secretary](/usc/42/1301.md?p=a-6) shall not waive compliance with the requirements of this paragraph except to the extent necessary to permit a [State](/usc/42/1396b.md?p=w-7-D) to coordinate eligibility requirements for dual [eligible individuals](/usc/42/239.md?p=a-6) (as defined in [section 1396n(h)(2)(B) of this title](/usc/42/1396n.md?p=h-2-B)) under the [State](/usc/42/1396b.md?p=w-7-D) plan or under a waiver of the plan and under subchapter XVIII and individuals who require the level of care provided in a [hospital](/usc/42/1395dd.md?p=e-5), a [nursing facility](/usc/42/1396r.md?p=a), or an [intermediate care facility for the mentally retarded](/usc/42/1396d.md?p=d).
    - (G) **Definitions of modified adjusted gross income and household income.—** In this paragraph, the terms “modified adjusted gross income” and “household income” have the meanings given such terms in section 36B(d)(2) of the Internal Revenue Code of 1986.
    - (H) **Continued application of medicaid rules regarding point-in-time income and sources of income.—** The requirement under this paragraph for [States](/usc/42/1396b.md?p=w-7-D) to use [modified adjusted gross income](#e-14-G) and [household income](#e-14-G) to determine [income](/usc/42/292s.md?p=c-4) eligibility for medical assistance under the [State](/usc/42/1396b.md?p=w-7-D) plan or under any waiver of such plan and for any other purpose applicable under the plan or waiver for which a determination of [income](/usc/42/292s.md?p=c-4) is required shall not be construed as affecting or limiting the application of—
      - (i) the requirement under this subchapter and under the [State](/usc/42/1396b.md?p=w-7-D) plan or a waiver of the plan to determine an individual’s [income](/usc/42/292s.md?p=c-4) as of the point in time at which an application for medical assistance under the [State](/usc/42/1396b.md?p=w-7-D) plan or a waiver of the plan is processed; or
      - (ii) any rules established under this subchapter or under the [State](/usc/42/1396b.md?p=w-7-D) plan or a waiver of the plan regarding sources of countable [income](/usc/42/292s.md?p=c-4).
    - (I) **Treatment of portion of modified adjusted gross income.—** For purposes of determining the [income](/usc/42/292s.md?p=c-4) eligibility of an individual for medical assistance whose eligibility is determined based on the application of [modified adjusted gross income](#e-14-G) under [subparagraph (A)](#e-14-A), the [State](/usc/42/1396b.md?p=w-7-D) shall—
      - (i) determine the dollar equivalent of the difference between the upper [income](/usc/42/292s.md?p=c-4) limit on eligibility for such an individual (expressed as a percentage of the [poverty line](/usc/42/1395w–114.md?p=a-3-C-ii)) and such upper [income](/usc/42/292s.md?p=c-4) limit increased by 5 percentage points; and
      - (ii) notwithstanding the requirement in [subparagraph (A)](#e-14-A) with respect to use of [modified adjusted gross income](#e-14-G), utilize as the applicable [income](/usc/42/292s.md?p=c-4) of such individual, in determining such [income](/usc/42/292s.md?p=c-4) eligibility, an amount equal to the [modified adjusted gross income](#e-14-G) applicable to such individual reduced by such dollar equivalent amount.
    - (J) **Exclusion of parent mentor compensation from income determination.—** Any nominal amount received by an individual as compensation, [including](/usc/42/1301.md?p=b) a stipend, for participation as a [parent](#k-3) mentor (as defined in paragraph (5) of [section 1397mm(f) of this title](/usc/42/1397mm.md?p=f)) in an activity or [program](/usc/42/274l–1.md?p=4) funded through a [grant](/usc/42/1397j.md?p=10) under such section shall be disregarded for purposes of determining the [income](/usc/42/292s.md?p=c-4) eligibility of such individual for medical assistance under the [State](/usc/42/1396b.md?p=w-7-D) plan or any waiver of such plan.
    - (K) **Treatment of certain lottery winnings and income received as a lump sum.—**
      - (i) **In general.—** In the case of an individual who is the [recipient](/usc/42/2996a.md?p=6) of [qualified lottery winnings](#e-14-K-v) (pursuant to lotteries occurring on or after January 1, 2018) or [qualified lump sum income](#e-14-K-vi) (received on or after such date) and whose eligibility for medical assistance is determined based on the application of [modified adjusted gross income](#e-14-G) under [subparagraph (A)](#e-14-A), a [State](/usc/42/1396b.md?p=w-7-D) shall, in determining such eligibility, include such winnings or [income](/usc/42/292s.md?p=c-4) (as applicable) as [income](/usc/42/292s.md?p=c-4) received—
        - (I) in the month in which such winnings or [income](/usc/42/292s.md?p=c-4) (as applicable) is received if the amount of such winnings or [income](/usc/42/292s.md?p=c-4) is less than $80,000;
        - (II) over a period of 2 months if the amount of such winnings or [income](/usc/42/292s.md?p=c-4) (as applicable) is greater than or equal to $80,000 but less than $90,000;
        - (III) over a period of 3 months if the amount of such winnings or [income](/usc/42/292s.md?p=c-4) (as applicable) is greater than or equal to $90,000 but less than $100,000; and
        - (IV) over a period of 3 months plus 1 additional month for each increment of $10,000 of such winnings or [income](/usc/42/292s.md?p=c-4) (as applicable) received, not to exceed a period of 120 months (for winnings or [income](/usc/42/292s.md?p=c-4) of $1,260,000 or more), if the amount of such winnings or [income](/usc/42/292s.md?p=c-4) is greater than or equal to $100,000.
      - (ii) **Counting in equal installments.—** For purposes of subclauses [(II)](#e-14-K-i-II), [(III)](#e-14-K-i-III), and [(IV)](#e-14-K-i-IV) of clause (i), winnings or [income](/usc/42/292s.md?p=c-4) to which such subclause applies shall be counted in equal monthly installments over the period of months specified under such subclause.
      - (iii) **Hardship exemption.—** An individual whose [income](/usc/42/292s.md?p=c-4), by application of [clause (i)](#e-14-K-i), exceeds the applicable eligibility threshold established by the [State](/usc/42/1396b.md?p=w-7-D), shall continue to be eligible for medical assistance to the extent that the [State](/usc/42/1396b.md?p=w-7-D) determines, under procedures established by the [State](/usc/42/1396b.md?p=w-7-D) (in accordance with [standards](/usc/42/1320d.md?p=7) specified by the [Secretary](/usc/42/1301.md?p=a-6)), that the denial of eligibility of the individual would [cause](/usc/42/9908.md?p=c-2) an undue medical or financial hardship as determined on the basis of criteria established by the [Secretary](/usc/42/1301.md?p=a-6).
      - (iv) **Notifications and assistance required in case of loss of eligibility.—** A [State](/usc/42/1396b.md?p=w-7-D) shall, with respect to an individual who loses eligibility for medical assistance under the [State](/usc/42/1396b.md?p=w-7-D) plan (or a waiver of such plan) by reason of [clause (i)](#e-14-K-i)—
        - (I) before the date on which the individual loses such eligibility, inform the individual—
          - (aa) of the individual’s opportunity to enroll in a [qualified health plan](/usc/42/300gg–91.md?p=d-20) offered through an [Exchange](/usc/42/300gg–91.md?p=d-21) established under title I of the Patient Protection and Affordable Care Act during the special enrollment period specified in section 9801(f)(3) of the Internal Revenue Code of 1986 (relating to loss of [Medicaid](/usc/42/1396b.md?p=w-3-E-iii-III-aa) or CHIP coverage); and
          - (bb) of the date on which the individual would no longer be considered ineligible by reason of [clause (i)](#e-14-K-i) to receive medical assistance under the [State](/usc/42/1396b.md?p=w-7-D) plan or under any waiver of such plan and be eligible to reapply to receive such medical assistance; and
        - (II) provide technical assistance to the individual seeking to enroll in such a [qualified health plan](/usc/42/300gg–91.md?p=d-20).
      - (v) **Qualified lottery winnings defined.—** In this subparagraph, the term “qualified lottery winnings” means winnings from a sweepstakes, lottery, or pool described in [paragraph (3)](/usc/42/4402.md) of section 4402 of the Internal Revenue Code of 1986 or a lottery operated by a multistate or multijurisdictional lottery association, [including](/usc/42/1301.md?p=b) amounts awarded as a lump sum payment.
      - (vi) **Qualified lump sum income defined.—** In this subparagraph, the term “qualified lump sum income” means [income](/usc/42/292s.md?p=c-4) that is received as a lump sum from monetary winnings from gambling (as defined by the [Secretary](/usc/42/1301.md?p=a-6) and [including](/usc/42/1301.md?p=b) gambling activities described in [section 1955(b)(4) of title 18](/usc/18/1955.md?p=b-4)).
    - (L) **Frequency of eligibility redeterminations for certain individuals.—**
      - (i) **In general.—** Subject to [clause (ii)](#e-14-L-ii), with respect to redeterminations of eligibility for medical assistance under a [State](#e-14-L-iii) plan (or waiver of such plan) scheduled on or after the first day of the first quarter that begins after December 31, 2026, a [State](#e-14-L-iii) shall make such a redetermination once every 6 months for the following individuals:
        - (I) Individuals enrolled under [subsection (a)(10)(A)(i)(VIII)](#a-10-A-i-VIII).
        - (II) Individuals described in such subsection who are otherwise enrolled under a waiver of such plan that provides coverage that is equivalent to minimum essential coverage (as described in section 5000A(f)(1)(A) of the Internal Revenue Code of 1986 and determined in accordance with [standards](/usc/42/1320d.md?p=7) prescribed by the [Secretary](/usc/42/1301.md?p=a-6) in regulations) to all individuals described in [subsection (a)(10)(A)(i)(VIII)](#a-10-A-i-VIII).
      - (ii) **Exemption.—** The requirements described in [clause (i)](#e-14-L-i) shall not apply to any individual described in [subsection (xx)(9)(A)(ii)(II)](#xx-9-A-ii-II).
      - (iii) **State defined.—** For purposes of this subparagraph, the term “State” means 1 of the 50 States or the District of Columbia.
  - (15) **Exclusion of compensation for participation in a clinical trial for testing of treatments for a rare disease or condition.—** The first $2,000 received by an individual (who has attained 19 years of age) as compensation for participation in a clinical trial meeting the requirements of [section 1382a(b)(26) of this title](/usc/42/1382a.md?p=b-26) shall be disregarded for purposes of determining the [income](/usc/42/292s.md?p=c-4) eligibility of such individual for medical assistance under the [State](/usc/42/1396b.md?p=w-7-D) plan or any waiver of such plan.
  - (16) **Extending certain coverage for pregnant and postpartum women.—**
    - (A) **In general.—** At the option of the [State](/usc/42/1396b.md?p=w-7-D), the [State](/usc/42/1396b.md?p=w-7-D) plan (or waiver of such [State](/usc/42/1396b.md?p=w-7-D) plan) may provide, that an individual who, while pregnant, is eligible for and has received medical assistance under the [State](/usc/42/1396b.md?p=w-7-D) plan approved under this subchapter (or a waiver of such plan) ([including](/usc/42/1301.md?p=b) during a period of retroactive eligibility under [subsection (a)(34)](#a-34)) shall, in addition to remaining eligible under [paragraph (5)](#e-5) for all pregnancy-related and postpartum medical assistance available under the [State](/usc/42/1396b.md?p=w-7-D) plan (or waiver) through the last day of the month in which the 60-day period (beginning on the last day of her pregnancy) ends, remain eligible under the [State](/usc/42/1396b.md?p=w-7-D) plan (or waiver) for medical assistance 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 her pregnancy) ends.
    - (B) **Full benefits during pregnancy and throughout the 12-month postpartum period.—** The medical assistance provided for a pregnant or postpartum individual by a [State](/usc/42/1396b.md?p=w-7-D) making an election under this paragraph, without regard to the basis on which the individual is eligible for medical assistance under the [State](/usc/42/1396b.md?p=w-7-D) plan (or waiver), shall—
      - (i) include all items and services covered under the [State](/usc/42/1396b.md?p=w-7-D) plan (or waiver) that are not less in amount, duration, or scope, or are determined by the [Secretary](/usc/42/1301.md?p=a-6) to be substantially equivalent, to the medical assistance available for an individual described in [subsection (a)(10)(A)(i)](#a-10-A-i); and
      - (ii) be provided for the individual while pregnant and during the 12-month period that begins on the last day of the individual’s pregnancy and ends on the last day of the month in which such 12-month period ends.
    - (C) **Coverage under chip.—** A [State](/usc/42/1396b.md?p=w-7-D) making an election under this paragraph that covers under subchapter XXI [child health assistance](/usc/42/1397ll.md?p=d-1) for targeted low-[income](/usc/42/292s.md?p=c-4) [children](/usc/42/256e.md?p=g-2) who are pregnant or targeted low-[income](/usc/42/292s.md?p=c-4) pregnant women, as applicable, shall also make the election under [section 1397gg(e)(1)(J)](/usc/42/1397gg.md?p=e-1-J)[^1] of this title.
- (f) **Effective date of State plan as determinative of duty of State to provide medical assistance to aged, blind, or disabled individuals—** Notwithstanding any other provision of this subchapter, except as provided in [subsection (e)](#e) and [section 1382h(b)(3) of this title](/usc/42/1382h.md?p=b-3) and [section 1396r–5 of this title](/usc/42/1396r–5.md), except with respect to [qualified disabled and working individuals](/usc/42/1396d.md?p=s) (described in [section 1396d(s) of this title](/usc/42/1396d.md?p=s)), and except with respect to [qualified medicare beneficiaries](/usc/42/1396d.md?p=p-1), [qualified severely impaired individuals](/usc/42/1396d.md?p=q), and individuals described in [subsection (m)(1)](#m-1), no [State](/usc/42/1396b.md?p=w-7-D) not eligible to participate in the [State](/usc/42/1396b.md?p=w-7-D) plan [program](/usc/42/274l–1.md?p=4) established under subchapter XVI shall be required to provide medical assistance to any aged, blind, or disabled individual (within the meaning of subchapter XVI) for any month unless such [State](/usc/42/1396b.md?p=w-7-D) would be (or would have been) required to provide medical assistance to such individual for such month had its plan for medical assistance approved under this subchapter and in effect on January 1, 1972, been in effect in such month, except that for this purpose any such individual shall be deemed eligible for medical assistance under such [State](/usc/42/1396b.md?p=w-7-D) plan if (in addition to meeting such other requirements as are or may be imposed under the [State](/usc/42/1396b.md?p=w-7-D) plan) the [income](/usc/42/292s.md?p=c-4) of any such individual as determined in accordance with [section 1396b(f) of this title](/usc/42/1396b.md?p=f) (after deducting any supplemental security [income](/usc/42/292s.md?p=c-4) payment and [State supplementary payment](/usc/42/1396d.md?p=j) made with respect to such individual, and incurred expenses for [medical care](/usc/42/1301.md?p=a-7) as recognized under [State](/usc/42/1396b.md?p=w-7-D) law regardless of whether such expenses are reimbursed under another public [program](/usc/42/274l–1.md?p=4) of the [State](/usc/42/1396b.md?p=w-7-D) or political subdivision thereof) is not in excess of the [standard](/usc/42/1320d.md?p=7) for medical assistance established under the [State](/usc/42/1396b.md?p=w-7-D) plan as in effect on January 1, 1972. In [States](/usc/42/1396b.md?p=w-7-D) which provide medical assistance to individuals pursuant to [paragraph (10)(C)](#a-10-C) of subsection (a) of this section, an individual who is eligible for medical assistance by reason of the requirements of this section concerning the deduction of incurred medical expenses from [income](/usc/42/292s.md?p=c-4) shall be considered an individual eligible for medical assistance under [paragraph (10)(A)](#a-10-A) of that subsection if that individual is, or is eligible to be (1) an individual with respect to whom there is payable a [State supplementary payment](/usc/42/1396d.md?p=j) on the basis of which similarly situated individuals are eligible to receive medical assistance equal in amount, duration, and scope to that provided to individuals eligible under paragraph [(10)(A)](#a-10-A), or [(2)](#a-2) an [eligible individual](/usc/42/239.md?p=a-6) or eligible spouse, as defined in subchapter XVI, with respect to whom [supplemental security income benefits](/usc/42/1382i.md?p=b-2) are payable; otherwise that individual shall be considered to be an individual eligible for medical assistance under [paragraph (10)(C)](#a-10-C) of that subsection. In [States](/usc/42/1396b.md?p=w-7-D) which do not provide medical assistance to individuals pursuant to [paragraph (10)(C)](#a-10-C) of that subsection, an individual who is eligible for medical assistance by reason of the requirements of this section concerning the deduction of incurred medical expenses from [income](/usc/42/292s.md?p=c-4) shall be considered an individual eligible for medical assistance under [paragraph (10)(A)](#a-10-A) of that subsection.
- (g) **Reduction of aid or assistance to providers of services attempting to collect from beneficiary in violation of third-party provisions—** In addition to any other sanction available to a [State](/usc/42/1396b.md?p=w-7-D), a [State](/usc/42/1396b.md?p=w-7-D) may provide for a reduction of any payment amount otherwise due with respect to a [person](/usc/42/1301.md?p=a-3) who furnishes services under the plan in an amount equal to up to three times the amount of any payment sought to be collected by that [person](/usc/42/1301.md?p=a-3) in [violation](/usc/42/2000e–16a.md?p=c) of [subsection (a)(25)(C)](#a-25-C).
- (h) **Payments for hospitals serving disproportionate number of low-income patients and for home and community care—**
  - (1) Nothing in this subchapter ([including](/usc/42/1301.md?p=b) subsections [(a)(13)](#a-13) and [(a)(30)](#a-30) of this section) shall be construed as authorizing the [Secretary](/usc/42/1301.md?p=a-6) to limit the amount of payment that may be made under a plan under this subchapter for [home and community care](/usc/42/1396t.md?p=a), home and community-based services provided under subsection (c), (d), or (i) of [section 1396n of this title](/usc/42/1396n.md) or under a waiver or [demonstration project](/usc/42/16281.md?p=d-2) under [section 1315 of this title](/usc/42/1315.md), self-directed personal assistance services provided pursuant to a written plan of care under [section 1396n(j) of this title](/usc/42/1396n.md?p=j), and home and community-based attendant services and supports under [section 1396n(k) of this title](/usc/42/1396n.md?p=k).
  - (2) Nothing in this subchapter, subchapter XVIII, or subchapter XI shall be construed as prohibiting receipt of any care or services specified in [paragraph (1)](#h-1) in an acute care [hospital](/usc/42/1395dd.md?p=e-5) that are—
    - (A) identified in an individual’s [person](/usc/42/1301.md?p=a-3)-centered service plan (or comparable plan of care);
    - (B) provided to meet needs of the individual that are not met through the provision of [hospital](/usc/42/1395dd.md?p=e-5) services;
    - (C) not a substitute for services that the [hospital](/usc/42/1395dd.md?p=e-5) is obligated to provide through its conditions of participation or under Federal or [State](/usc/42/1396b.md?p=w-7-D) law, or under another applicable requirement; and
    - (D) designed to ensure smooth transitions between acute care settings and home and community-based settings, and to preserve the individual’s functional abilities.
- (i) **Termination of certification for participation of and suspension of State payments to intermediate care facilities for the mentally retarded—**
  - (1) In addition to any other authority under [State](/usc/42/1396b.md?p=w-7-D) law, where a [State](/usc/42/1396b.md?p=w-7-D) determines that a[^13] [intermediate care facility for the mentally retarded](/usc/42/1396d.md?p=d) which is certified for participation under its plan no longer substantially meets the requirements for such a [facility](/usc/42/11049.md?p=4) under this subchapter and further determines that the [facility](/usc/42/11049.md?p=4)’s deficiencies—
    - (A) immediately jeopardize the health and safety of its patients, the [State](/usc/42/1396b.md?p=w-7-D) shall provide for the termination of the [facility](/usc/42/11049.md?p=4)’s certification for participation under the plan and may provide, or
    - (B) do not immediately jeopardize the health and safety of its patients, the [State](/usc/42/1396b.md?p=w-7-D) may, in lieu of providing for terminating the [facility](/usc/42/11049.md?p=4)’s certification for participation under the plan, establish alternative remedies if the [State](/usc/42/1396b.md?p=w-7-D) demonstrates to the [Secretary](/usc/42/1301.md?p=a-6)’s satisfaction that the alternative remedies are effective in deterring noncompliance and correcting deficiencies, and may provide

    that no payment will be made under the [State](/usc/42/1396b.md?p=w-7-D) plan with respect to any individual admitted to such [facility](/usc/42/11049.md?p=4) after a date specified by the [State](/usc/42/1396b.md?p=w-7-D).

  - (2) The [State](/usc/42/1396b.md?p=w-7-D) shall not make such a decision with respect to a [facility](/usc/42/11049.md?p=4) until the [facility](/usc/42/11049.md?p=4) has had a reasonable opportunity, following the initial determination that it no longer substantially meets the requirements for such a [facility](/usc/42/11049.md?p=4) under this subchapter, to correct its deficiencies, and, following this period, has been given reasonable notice and opportunity for a hearing.
  - (3) The [State](/usc/42/1396b.md?p=w-7-D)’s decision to deny payment may be made effective only after such notice to the public and to the [facility](/usc/42/11049.md?p=4) as may be provided for by the [State](/usc/42/1396b.md?p=w-7-D), and its effectiveness shall terminate (A) when the [State](/usc/42/1396b.md?p=w-7-D) finds that the [facility](/usc/42/11049.md?p=4) is in substantial compliance (or is making good faith efforts to achieve substantial compliance) with the requirements for such a [facility](/usc/42/11049.md?p=4) under this subchapter, or (B) in the case described in [paragraph (1)(B)](#i-1-B), with the end of the eleventh month following the month such decision is made effective, whichever occurs first. If a [facility](/usc/42/11049.md?p=4) to which [clause (B)](#i-1-B) of the previous sentence applies still fails to substantially meet the provisions of the respective section on the date specified in such clause, the [State](/usc/42/1396b.md?p=w-7-D) shall terminate such [facility](/usc/42/11049.md?p=4)’s certification for participation under the plan effective with the first day of the first month following the month specified in such clause.
- (j) **Waiver or modification of subchapter requirements with respect to medical assistance program in American Samoa—** Notwithstanding any other requirement of this subchapter, the [Secretary](/usc/42/1301.md?p=a-6) may waive or modify any requirement of this subchapter with respect to the medical assistance [program](/usc/42/274l–1.md?p=4) in American Samoa and the Northern Mariana Islands, other than a waiver of the Federal medical assistance percentage, the limitation in [section 1308(f) of this title](/usc/42/1308.md?p=f),,[^21] the requirement that payment may be made for medical assistance only with respect to amounts expended by American Samoa or the Northern Mariana Islands for care and services described in a numbered paragraph of [section 1396d(a) of this title](/usc/42/1396d.md?p=a), or the requirement under [subsection (qq)(1)](#qq-1) (relating to data reporting).
- (k) **Minimum coverage for individuals with income at or below 133 percent of the poverty line—**
  - (1) The medical assistance provided to an individual described in [subclause (VIII)](#a-10-A-i-VIII) of subsection (a)(10)(A)(i) shall consist of benchmark coverage described in [section 1396u–7(b)(1) of this title](/usc/42/1396u–7.md?p=b-1) or benchmark equivalent coverage described in [section 1396u–7(b)(2) of this title](/usc/42/1396u–7.md?p=b-2). Such medical assistance shall be provided subject to the requirements of [section 1396u–7 of this title](/usc/42/1396u–7.md), without regard to whether a [State](/usc/42/1396b.md?p=w-7-D) otherwise has elected the option to provide medical assistance through coverage under that section, unless an individual described in [subclause (VIII)](#a-10-A-i-VIII) of subsection (a)(10)(A)(i) is also an individual for whom, under subparagraph (B) of [section 1396u–7(a)(2) of this title](/usc/42/1396u–7.md?p=a-2), the [State](/usc/42/1396b.md?p=w-7-D) may not require enrollment in benchmark coverage described in subsection (b)(1) of [section 1396u–7 of this title](/usc/42/1396u–7.md) or benchmark equivalent coverage described in [subsection (b)(2)](/usc/42/1396u–7.md?p=b-2) of that section.
  - (2) Beginning with the first day of any fiscal year quarter that begins on or after April 1, 2010, and before January 1, 2014, a [State](/usc/42/1396b.md?p=w-7-D) may elect through a [State](/usc/42/1396b.md?p=w-7-D) plan amendment to provide medical assistance to individuals who would be described in [subclause (VIII)](#a-10-A-i-VIII) of subsection (a)(10)(A)(i) if that subclause were effective before January 1, 2014. A [State](/usc/42/1396b.md?p=w-7-D) may elect to phase-in the extension of eligibility for medical assistance to such individuals based on [income](/usc/42/292s.md?p=c-4), so long as the [State](/usc/42/1396b.md?p=w-7-D) does not extend such eligibility to individuals described in such subclause with higher [income](/usc/42/292s.md?p=c-4) before making individuals described in such subclause with lower [income](/usc/42/292s.md?p=c-4) eligible for medical assistance.
  - (3) If an individual described in [subclause (VIII)](#a-10-A-i-VIII) of subsection (a)(10)(A)(i) is the parent of a [child](/usc/42/416.md?p=e) who is under 19 years of age (or such higher age as the [State](/usc/42/1396b.md?p=w-7-D) may have elected) who is eligible for medical assistance under the [State](/usc/42/1396b.md?p=w-7-D) plan or under a waiver of such plan (under that subclause or under a [State](/usc/42/1396b.md?p=w-7-D) plan amendment under [paragraph (2)](#k-2),[^14] the individual may not be enrolled under the [State](/usc/42/1396b.md?p=w-7-D) plan unless the individual’s [child](/usc/42/416.md?p=e) is enrolled under the [State](/usc/42/1396b.md?p=w-7-D) plan or under a waiver of the plan or is enrolled in other [health insurance coverage](/usc/42/1320d–9.md?p=b-2). For purposes of the preceding sentence, the term “parent” [includes](/usc/42/1301.md?p=b) an individual treated as a caretaker relative for purposes of carrying out [section 1396u–1 of this title](/usc/42/1396u–1.md).
- (l) **Description of group—**
  - (1) Individuals described in this paragraph are—
    - (A) women during pregnancy (and during the 60-day period beginning on the last day of the pregnancy),
    - (B) infants under one year of age,
    - (C) [children](/usc/42/256e.md?p=g-2) who have attained one year of age but have not attained 6 years of age, and
    - (D) [children](/usc/42/256e.md?p=g-2) born after September 30, 1983 (or, at the option of a [State](/usc/42/1396b.md?p=w-7-D), after any earlier date), who have attained 6 years of age but have not attained 19 years of age,

    who are not described in any of [subclauses (I) through (III)](#a-10-A-i-I..a-10-A-i-III) of subsection (a)(10)(A)(i) and whose [family](/usc/42/290ff–4.md?p=d-2) [income](/usc/42/292s.md?p=c-4) does not exceed the [income](/usc/42/292s.md?p=c-4) level established by the [State](/usc/42/1396b.md?p=w-7-D) under [paragraph (2)](#l-2) for a [family](/usc/42/290ff–4.md?p=d-2) size equal to the size of the [family](/usc/42/290ff–4.md?p=d-2), [including](/usc/42/1301.md?p=b) the woman, infant, or [child](/usc/42/416.md?p=e).

  - (2)
    - (A)
      - (i) For purposes of [paragraph (1)](#l-1) with respect to individuals described in subparagraph [(A)](#l-2-A) or [(B)](#l-2-B) of that paragraph, the [State](/usc/42/1396b.md?p=w-7-D) shall establish an [income](/usc/42/292s.md?p=c-4) level which is a percentage (not less than the percentage provided under [clause (ii)](#l-2-A-ii) and not more than 185 percent) of the [income](/usc/42/292s.md?p=c-4) [official poverty line](/usc/42/254c–12.md?p=1) (as defined by the [Office](/usc/42/3058f.md?p=1) of Management and Budget, and revised annually in accordance with [section 9902(2) of this title](/usc/42/9902.md?p=2)) applicable to a [family](/usc/42/290ff–4.md?p=d-2) of the size involved.
      - (ii) The percentage provided under this clause, with respect to eligibility for medical assistance on or after—
        - (I) July 1, 1989, is 75 percent, or, if greater, the percentage provided under [clause (iii)](#l-2-A-iii), and
        - (II) April 1, 1990, 133 percent, or, if greater, the percentage provided under [clause (iv)](#l-2-A-iv).
      - (iii) In the case of a [State](/usc/42/1396b.md?p=w-7-D) which, as of July 1, 1988, has elected to provide, and provides, medical assistance to individuals described in this subsection or has enacted legislation authorizing, or appropriating [funds](/usc/42/12854.md?p=3), to provide such assistance to such individuals before July 1, 1989, the percentage provided under [clause (ii)(I)](#l-2-A-ii-I) shall not be less than—
        - (I) the percentage specified by the [State](/usc/42/1396b.md?p=w-7-D) in an amendment to its [State](/usc/42/1396b.md?p=w-7-D) plan (whether approved or not) as of July 1, 1988, or
        - (II) if no such percentage is specified as of July 1, 1988, the percentage established under the [State](/usc/42/1396b.md?p=w-7-D)’s authorizing legislation or provided for under the [State](/usc/42/1396b.md?p=w-7-D)’s appropriations;

        but in no case shall this clause require the percentage provided under [clause (ii)(I)](#l-2-A-ii-I) to exceed 100 percent.

      - (iv) In the case of a [State](/usc/42/1396b.md?p=w-7-D) which, as of December 19, 1989, has established under [clause (i)](#l-2-A-i), or has enacted legislation authorizing, or appropriating [funds](/usc/42/12854.md?p=3), to provide for, a percentage (of the [income](/usc/42/292s.md?p=c-4) [official poverty line](/usc/42/254c–12.md?p=1)) that is greater than 133 percent, the percentage provided under [clause (ii)](#l-2-A-ii) for medical assistance on or after April 1, 1990, shall not be less than—
        - (I) the percentage specified by the [State](/usc/42/1396b.md?p=w-7-D) in an amendment to its [State](/usc/42/1396b.md?p=w-7-D) plan (whether approved or not) as of December 19, 1989, or
        - (II) if no such percentage is specified as of December 19, 1989, the percentage established under the [State](/usc/42/1396b.md?p=w-7-D)’s authorizing legislation or provided for under the [State](/usc/42/1396b.md?p=w-7-D)’s appropriations.
    - (B) For purposes of [paragraph (1)](#l-1) with respect to individuals described in [subparagraph (C)](#l-2-C) of such paragraph, the [State](/usc/42/1396b.md?p=w-7-D) shall establish an [income](/usc/42/292s.md?p=c-4) level which is equal to 133 percent of the [income](/usc/42/292s.md?p=c-4) [official poverty line](/usc/42/254c–12.md?p=1) described in [subparagraph (A)](#l-2-A) applicable to a [family](/usc/42/290ff–4.md?p=d-2) of the size involved.
    - (C) For purposes of [paragraph (1)](#l-1) with respect to individuals described in [subparagraph (D)](#l-1-D) of that paragraph, the [State](/usc/42/1396b.md?p=w-7-D) shall establish an [income](/usc/42/292s.md?p=c-4) level which is equal to 100 percent (or, beginning January 1, 2014, 133 percent) of the [income](/usc/42/292s.md?p=c-4) [official poverty line](/usc/42/254c–12.md?p=1) described in [subparagraph (A)](#l-2-A) applicable to a [family](/usc/42/290ff–4.md?p=d-2) of the size involved.
  - (3) Notwithstanding [subsection (a)(17)](#a-17), for individuals who are eligible for medical assistance because of subsection [(a)(10)(A)(i)(IV)](#a-10-A-i-IV), [(a)(10)(A)(i)(VI)](#a-10-A-i-VI), [(a)(10)](#a-10) (A)(i)(VII), or (a)(10)(A)(ii)(IX)—
    - (A) application of a resource [standard](/usc/42/1320d.md?p=7) shall be at the option of the [State](/usc/42/1396b.md?p=w-7-D);
    - (B) any resource [standard](/usc/42/1320d.md?p=7) or methodology that is applied with respect to an individual described in [subparagraph (A)](#l-1-A) of paragraph (1) may not be more restrictive than the resource [standard](/usc/42/1320d.md?p=7) or methodology that is applied under subchapter XVI;
    - (C) any resource [standard](/usc/42/1320d.md?p=7) or methodology that is applied with respect to an individual described in subparagraph [(B)](#l-1-B), [(C)](#l-1-C), or [(D)](#l-1-D) of paragraph (1) may not be more restrictive than the corresponding methodology that is applied under the [State](/usc/42/1396b.md?p=w-7-D) plan under part A of subchapter IV;
    - (D) the [income](/usc/42/292s.md?p=c-4) [standard](/usc/42/1320d.md?p=7) to be applied is the appropriate [income](/usc/42/292s.md?p=c-4) [standard](/usc/42/1320d.md?p=7) established under [paragraph (2)](#l-2); and
    - (E) [family](/usc/42/290ff–4.md?p=d-2) [income](/usc/42/292s.md?p=c-4) shall be determined in accordance with the methodology employed under the [State](/usc/42/1396b.md?p=w-7-D) plan under part A or E of subchapter IV (except to the extent such methodology is inconsistent with clause (D) of subsection (a)(17)), and costs incurred for [medical care](/usc/42/1301.md?p=a-7) or for any other type of remedial care shall not be taken into account.

    Any different [treatment](/usc/42/11851.md?p=11) provided under this paragraph for such individuals shall not, because of [subsection (a)(17)](#a-17), require or permit such [treatment](/usc/42/11851.md?p=11) for other individuals.

  - (4)
    - (A) In the case of any [State](/usc/42/1396b.md?p=w-7-D) which is providing medical assistance to its residents under a waiver granted under [section 1315 of this title](/usc/42/1315.md), the [Secretary](/usc/42/1301.md?p=a-6) shall require the [State](/usc/42/1396b.md?p=w-7-D) to provide medical assistance for pregnant women and infants under age 1 described in [subsection (a)(10)(A)(i)(IV)](#a-10-A-i-IV) and for [children](/usc/42/256e.md?p=g-2) described in [subsection (a)(10)(A)(i)(VI)](#a-10-A-i-VI) or [subsection (a)(10)(A)(i)(VII)](#a-10-A-i-VII) in the same manner as the [State](/usc/42/1396b.md?p=w-7-D) would be required to provide such assistance for such individuals if the [State](/usc/42/1396b.md?p=w-7-D) had in effect a plan approved under this subchapter.
    - (B) In the case of a [State](/usc/42/1396b.md?p=w-7-D) which is not one of the 50 [States](/usc/42/1396b.md?p=w-7-D) or the District of Columbia, the [State](/usc/42/1396b.md?p=w-7-D) need not meet the requirement of subsection [(a)(10)(A)(i)(IV)](#a-10-A-i-IV), [(a)(10)(A)(i)(VI)](#a-10-A-i-VI), or [(a)(10)(A)(i)(VII)](#a-10-A-i-VII) and, for purposes of [paragraph (2)(A)](#l-2-A), the [State](/usc/42/1396b.md?p=w-7-D) may substitute for the percentage provided under [clause (ii)](#l-2-A-ii) of such paragraph any percentage.
- (m) **Description of individuals—**
  - (1) Individuals described in this paragraph are individuals—
    - (A) who are 65 years of age or older or are disabled individuals (as determined under [section 1382c(a)(3) of this title](/usc/42/1382c.md?p=a-3)),
    - (B) whose [income](/usc/42/292s.md?p=c-4) (as determined under [section 1382a of this title](/usc/42/1382a.md) for purposes of the supplemental security [income](/usc/42/292s.md?p=c-4) [program](/usc/42/274l–1.md?p=4), except as provided in [paragraph (2)(C)](#m-2-C)) does not exceed an [income](/usc/42/292s.md?p=c-4) level established by the [State](/usc/42/1396b.md?p=w-7-D) consistent with [paragraph (2)(A)](#m-2-A), and
    - (C) whose resources (as determined under [section 1382b of this title](/usc/42/1382b.md) for purposes of the supplemental security [income](/usc/42/292s.md?p=c-4) [program](/usc/42/274l–1.md?p=4)) do not exceed (except as provided in [paragraph (2)(B)](#m-2-B)) the maximum amount of resources that an individual may have and obtain benefits under that [program](/usc/42/274l–1.md?p=4).
  - (2)
    - (A) The [income](/usc/42/292s.md?p=c-4) level established under [paragraph (1)(B)](#m-1-B) may not exceed a percentage (not more than 100 percent) of the [official poverty line](/usc/42/254c–12.md?p=1) (as defined by the [Office](/usc/42/3058f.md?p=1) of Management and Budget, and revised annually in accordance with [section 9902(2) of this title](/usc/42/9902.md?p=2)) applicable to a [family](/usc/42/290ff–4.md?p=d-2) of the size involved.
    - (B) In the case of a [State](/usc/42/1396b.md?p=w-7-D) that provides medical assistance to individuals not described in [subsection (a)(10)(A)](#a-10-A) and at the [State](/usc/42/1396b.md?p=w-7-D)’s option, the [State](/usc/42/1396b.md?p=w-7-D) may use under [paragraph (1)(C)](#m-1-C) such resource level (which is higher than the level described in that paragraph) as may be applicable with respect to individuals described in [paragraph (1)(A)](#m-1-A) who are not described in [subsection (a)(10)(A)](#a-10-A).
    - (C) The provisions of [section 1396d(p)(2)(D) of this title](/usc/42/1396d.md?p=p-2-D) shall apply to determinations of [income](/usc/42/292s.md?p=c-4) under this subsection in the same manner as they apply to determinations of [income](/usc/42/292s.md?p=c-4) under [section 1396d(p) of this title](/usc/42/1396d.md?p=p).
  - (3) Notwithstanding [subsection (a)(17)](#a-17), for individuals described in [paragraph (1)](#m-1) who are covered under the [State](/usc/42/1396b.md?p=w-7-D) plan by virtue of [subsection (a)(10)(A)(ii)(X)](#a-10-A-ii-X)—
    - (A) the [income](/usc/42/292s.md?p=c-4) [standard](/usc/42/1320d.md?p=7) to be applied is the [income](/usc/42/292s.md?p=c-4) [standard](/usc/42/1320d.md?p=7) described in [paragraph (1)(B)](#m-1-B), and
    - (B) except as provided in [section 1382a(b)(4)(B)(ii) of this title](/usc/42/1382a.md), costs incurred for [medical care](/usc/42/1301.md?p=a-7) or for any other type of remedial care shall not be taken into account in determining [income](/usc/42/292s.md?p=c-4).

    Any different [treatment](/usc/42/11851.md?p=11) provided under this paragraph for such individuals shall not, because of [subsection (a)(17)](#a-17), require or permit such [treatment](/usc/42/11851.md?p=11) for other individuals.

  - (4) Notwithstanding [subsection (a)(17)](#a-17), for [qualified medicare beneficiaries](/usc/42/1396d.md?p=p-1) described in [section 1396d(p)(1) of this title](/usc/42/1396d.md?p=p-1)—
    - (A) the [income](/usc/42/292s.md?p=c-4) [standard](/usc/42/1320d.md?p=7) to be applied is the [income](/usc/42/292s.md?p=c-4) [standard](/usc/42/1320d.md?p=7) described in [section 1396d(p)(1)(B) of this title](/usc/42/1396d.md?p=p-1-B), and
    - (B) except as provided in [section 1382a(b)(4)(B)(ii) of this title](/usc/42/1382a.md), costs incurred for [medical care](/usc/42/1301.md?p=a-7) or for any other type of remedial care shall not be taken into account in determining [income](/usc/42/292s.md?p=c-4).

    Any different [treatment](/usc/42/11851.md?p=11) provided under this paragraph for such individuals shall not, because of [subsection (a)(17)](#a-17), require or permit such [treatment](/usc/42/11851.md?p=11) for other individuals.

- (n) **Payment amounts—**
  - (1) In the case of medical assistance furnished under this subchapter for [medicare cost-sharing](/usc/42/1396d.md?p=p-3) respecting the furnishing of a service or item to a [qualified medicare beneficiary](/usc/42/1396d.md?p=p-1), the [State](/usc/42/1396b.md?p=w-7-D) plan may provide payment in an amount with respect to the service or item that results in the sum of such payment amount and any amount of payment made under subchapter XVIII with respect to the service or item exceeding the amount that is otherwise payable under the [State](/usc/42/1396b.md?p=w-7-D) plan for the item or service for [eligible individuals](/usc/42/239.md?p=a-6) who are not [qualified medicare beneficiaries](/usc/42/1396d.md?p=p-1).
  - (2) In carrying out [paragraph (1)](#n-1), a [State](/usc/42/1396b.md?p=w-7-D) is not required to provide any payment for any expenses incurred relating to payment for deductibles, coinsurance, or copayments for [medicare cost-sharing](/usc/42/1396d.md?p=p-3) to the extent that payment under subchapter XVIII for the service would exceed the payment amount that otherwise would be made under the [State](/usc/42/1396b.md?p=w-7-D) plan under this subchapter for such service if provided to an [eligible recipient](/usc/42/3122.md?p=6-B) other than a medicare beneficiary.
  - (3) In the case in which a [State](/usc/42/1396b.md?p=w-7-D)’s payment for [medicare cost-sharing](/usc/42/1396d.md?p=p-3) for a [qualified medicare beneficiary](/usc/42/1396d.md?p=p-1) with respect to an item or service is reduced or eliminated through the application of [paragraph (2)](#n-2)—
    - (A) for purposes of applying any limitation under subchapter XVIII on the amount that the beneficiary may be billed or charged for the service, the amount of payment made under subchapter XVIII plus the amount of payment (if any) under the [State](/usc/42/1396b.md?p=w-7-D) plan shall be considered to be payment in full for the service;
    - (B) the beneficiary shall not have any legal liability to make payment to a provider or to an organization described in [section 1396b(m)(1)(A) of this title](/usc/42/1396b.md?p=m-1-A) for the service; and
    - (C) any lawful sanction that may be imposed upon a provider or such an organization for excess charges under this subchapter or subchapter XVIII shall apply to the imposition of any charge imposed upon the individual in such case.

    This paragraph shall not be construed as preventing payment of any [medicare cost-sharing](/usc/42/1396d.md?p=p-3) by a [medicare supplemental policy](/usc/42/1320d–9.md?p=b-2) or an employer retiree [health plan](/usc/42/300jj.md?p=6) on behalf of an individual.

- (o) **Certain benefits disregarded for purposes of determining post-eligibility contributions—** Notwithstanding any provision of [subsection (a)](#a) to the contrary, a [State](/usc/42/1396b.md?p=w-7-D) plan under this subchapter shall provide that any [supplemental security income benefits](/usc/42/1382i.md?p=b-2) paid by reason of subparagraph (E) or (G) of [section 1382(e)(1) of this title](/usc/42/1382.md?p=e-1) to an individual who—
  - (1) is eligible for medical assistance under the plan, and
  - (2) is in a [hospital](/usc/42/1395dd.md?p=e-5), [skilled nursing facility](/usc/42/1395x.md?p=j), or intermediate care [facility](/usc/42/11049.md?p=4) at the time such benefits are paid,

  will be disregarded for purposes of determining the amount of any post-eligibility contribution by the individual to the cost of the care and services provided by the [hospital](/usc/42/1395dd.md?p=e-5), [skilled nursing facility](/usc/42/1395x.md?p=j), or intermediate care [facility](/usc/42/11049.md?p=4).

- (p) **Exclusion power of State; exclusion as prerequisite for medical assistance payments; “exclude” defined—**
  - (1) In addition to any other authority, a [State](/usc/42/1396b.md?p=w-7-D) may [exclude](#p-3) any individual or entity for purposes of participating under the [State](/usc/42/1396b.md?p=w-7-D) plan under this subchapter for any reason for which the [Secretary](/usc/42/1301.md?p=a-6) could [exclude](#p-3) the individual or entity from participation in a [program](/usc/42/274l–1.md?p=4) under subchapter XVIII under section [1320a–7](/usc/42/1320a–7.md), [1320a–7a](/usc/42/1320a–7a.md), or [1395cc(b)(2)](/usc/42/1395cc.md?p=b-2) of this title.
  - (2) In order for a [State](/usc/42/1396b.md?p=w-7-D) to receive payments for medical assistance under [section 1396b(a) of this title](/usc/42/1396b.md?p=a), with respect to payments the [State](/usc/42/1396b.md?p=w-7-D) makes to a [medicaid managed care organization](/usc/42/1396b.md?p=m-1-A) (as defined in [section 1396b(m) of this title](/usc/42/1396b.md?p=m)) or to an entity furnishing services under a waiver approved under [section 1396n(b)(1) of this title](/usc/42/1396n.md?p=b-1), the [State](/usc/42/1396b.md?p=w-7-D) must provide that it will [exclude](#p-3) from participation, as such an organization or entity, any organization or entity that—
    - (A) could be excluded under [section 1320a–7(b)(8) of this title](/usc/42/1320a–7.md?p=b-8) (relating to [owners](/usc/42/13641.md?p=4) and [managing employees](/usc/42/1320a–3a.md?p=d-2) who have been convicted of certain crimes or received other sanctions),
    - (B) has, directly or indirectly, a substantial [contractual relationship](/usc/42/9601.md?p=35-A) (as defined by the [Secretary](/usc/42/1301.md?p=a-6)) with an individual or entity that is described in [section 1320a–7(b)(8)(B) of this title](/usc/42/1320a–7.md?p=b-8-B), or
    - (C) employs or contracts with any individual or entity that is excluded from participation under this subchapter under section [1320a–7](/usc/42/1320a–7.md) or [1320a–7a](/usc/42/1320a–7a.md) of this title for the provision of health care, utilization review, medical [social](/usc/42/1397j.md?p=20) work, or administrative services or employs or contracts with any entity for the provision (directly or indirectly) through such an excluded individual or entity of such services.
  - (3) As used in this subsection, the term “exclude” [includes](/usc/42/1301.md?p=b) the refusal to enter into or renew a participation [agreement](/usc/42/1320b–8.md?p=a-3-A) or the termination of such an [agreement](/usc/42/1320b–8.md?p=a-3-A).
- (q) **Minimum monthly personal needs allowance deduction; “institutionalized individual or couple” defined—**
  - (1)
    - (A) In order to meet the requirement of [subsection (a)(50)](#a-50), the [State](/usc/42/1396b.md?p=w-7-D) plan must provide that, in the case of an [institutionalized individual or couple](#q-1-B) described in [subparagraph (B)](#q-1-B), in determining the amount of the individual’s or couple’s [income](/usc/42/292s.md?p=c-4) to be applied monthly to payment for the cost of care in an institution, there shall be deducted from the monthly [income](/usc/42/292s.md?p=c-4) (in addition to other allowances otherwise provided under the [State](/usc/42/1396b.md?p=w-7-D) plan) a monthly personal needs allowance—
      - (i) which is reasonable in amount for clothing and other personal needs of the individual (or couple) while in an institution, and
      - (ii) which is not less (and may be greater) than the minimum monthly personal needs allowance described in [paragraph (2)](#q-2).
    - (B) In this subsection, the term “institutionalized individual or couple” means an individual or married couple—
      - (i) who is an inpatient (or who are inpatients) in a medical institution or [nursing facility](/usc/42/1396r.md?p=a) for which payments are made under this subchapter throughout a month, and
      - (ii) who is or are determined to be eligible for medical assistance under the [State](/usc/42/1396b.md?p=w-7-D) plan.
  - (2) The minimum monthly personal needs allowance described in this paragraph[^15] is $30 for an [institutionalized individual](/usc/42/1382b.md?p=c-1-F-ii) and $60 for an institutionalized couple (if both are aged, blind, or disabled, and their [incomes](/usc/42/292s.md?p=c-4) are considered available to each other in determining eligibility).
- (r) **Disregarding payments for certain medical expenses by institutionalized individuals—**
  - (1)
    - (A) For purposes of sections [1396a(a)(17)](#a-17) and [1396r–5(d)(1)(D)](/usc/42/1396r–5.md?p=d-1-D) of this title and for purposes of a waiver under [section 1396n of this title](/usc/42/1396n.md), with respect to the post-eligibility [treatment](/usc/42/11851.md?p=11) of [income](/usc/42/292s.md?p=c-4) of individuals who are institutionalized or receiving home or community-based services under such a waiver, the [treatment](/usc/42/11851.md?p=11) described in [subparagraph (B)](#r-1-B) shall apply, there shall be disregarded reparation payments made by the Federal Republic of Germany, and there shall be taken into account amounts for incurred expenses for medical or remedial care that are not subject to payment by a third party, [including](/usc/42/1301.md?p=b)—
      - (i) medicare and other health insurance premiums, deductibles, or coinsurance, and
      - (ii) necessary medical or remedial care recognized under [State](/usc/42/1396b.md?p=w-7-D) law but not covered under the [State](/usc/42/1396b.md?p=w-7-D) plan under this subchapter, subject to reasonable limits the [State](/usc/42/1396b.md?p=w-7-D) may establish on the amount of these expenses.
    - (B)
      - (i) In the case of a veteran who does not have a spouse or a [child](/usc/42/416.md?p=e), if the veteran—
        - (I) receives, after the veteran has been determined to be eligible for medical assistance under the [State](/usc/42/1396b.md?p=w-7-D) plan under this subchapter, a veteran’s pension in excess of $90 per month, and
        - (II) resides in a [State](/usc/42/1396b.md?p=w-7-D) veterans home with respect to which the [Secretary](/usc/42/1301.md?p=a-6) of Veterans Affairs makes per diem payments for [nursing home](/usc/42/1396g.md?p=e-1) care pursuant to [section 1741(a) of title 38](/usc/38/1741.md?p=a),

        any such pension payment, [including](/usc/42/1301.md?p=b) any payment made due to the need for aid and attendance, or for unreimbursed medical expenses, that is in excess of $90 per month shall be counted as [income](/usc/42/292s.md?p=c-4) only for the purpose of applying such excess payment to the [State](/usc/42/1396b.md?p=w-7-D) veterans home’s cost of providing [nursing home](/usc/42/1396g.md?p=e-1) care to the veteran.

      - (ii) The provisions of [clause (i)](#r-1-B-i) shall apply with respect to a surviving spouse of a veteran who does not have a [child](/usc/42/416.md?p=e) in the same manner as they apply to a veteran described in such clause.
  - (2)
    - (A) The methodology to be employed in determining [income](/usc/42/292s.md?p=c-4) and resource eligibility for individuals under subsection [(a)(10)(A)(i)(III)](#a-10-A-i-III), [(a)(10)(A)(i)(IV)](#a-10-A-i-IV), [(a)(10)(A)(i)(VI)](#a-10-A-i-VI), [(a)(10)(A)(i)(VII)](#a-10-A-i-VII), [(a)(10)(A)(ii)](#a-10-A-ii), (a)(10)(C)(i)(III), or [(f)](#f) or under [section 1396d(p) of this title](/usc/42/1396d.md?p=p) may be less restrictive, and shall be no more restrictive, than the methodology—
      - (i) in the case of groups consisting of aged, blind, or disabled individuals, under the supplemental security [income](/usc/42/292s.md?p=c-4) [program](/usc/42/274l–1.md?p=4) under subchapter XVI, or
      - (ii) in the case of other groups, under the [State](/usc/42/1396b.md?p=w-7-D) plan most closely categorically related.
    - (B) For purposes of this subsection and [subsection (a)(10)](#a-10), methodology is considered to be “no more restrictive” if, using the methodology, additional individuals may be eligible for medical assistance and no individuals who are otherwise eligible are made ineligible for such assistance.
    - (C) This paragraph shall not be construed as permitting a [State](/usc/42/1396b.md?p=w-7-D) to determine the eligibility of an individual for medical assistance with respect to [nursing facility services](/usc/42/1396d.md?p=f) or other [long-term care](/usc/42/1397j.md?p=14-A) services without application of the limit under [section 1396p(f)(1) of this title](/usc/42/1396p.md?p=f-1).
- (s) **Adjustment in payment for hospital services furnished to low-income children under age of 6 years—** In order to meet the requirements of [subsection (a)(55)](#a-55)[^16] , the [State](/usc/42/1396b.md?p=w-7-D) plan must provide that payments to [hospitals](/usc/42/1395dd.md?p=e-5) under the plan for inpatient [hospital](/usc/42/1395dd.md?p=e-5) services furnished to infants who have not attained the age of 1 year, and to [children](/usc/42/256e.md?p=g-2) who have not attained the age of 6 years and who receive such services in a disproportionate share [hospital](/usc/42/1395dd.md?p=e-5) described in [section 1396r–4(b)(1) of this title](/usc/42/1396r–4.md?p=b-1), shall—
  - (1) if made on a prospective basis (whether per diem, per case, or otherwise) provide for an outlier adjustment in payment amounts for medically necessary inpatient [hospital](/usc/42/1395dd.md?p=e-5) services involving exceptionally high costs or exceptionally long lengths of stay,
  - (2) not be limited by the imposition of day limits with respect to the delivery of such services to such individuals, and
  - (3) not be limited by the imposition of dollar limits (other than such limits resulting from prospective payments as adjusted pursuant to [paragraph (1)](#s-1)) with respect to the delivery of such services to any such individual who has not attained their first birthday (or in the case of such an individual who is an inpatient on his first birthday until such individual is discharged).
- (t) **Limitation on payments to States for expenditures attributable to taxes—** Nothing in this subchapter ([including](/usc/42/1301.md?p=b) sections [1396b(a)](/usc/42/1396b.md?p=a) and [1396d(a)](/usc/42/1396d.md?p=a) of this title) shall be construed as authorizing the [Secretary](/usc/42/1301.md?p=a-6) to deny or limit payments to a [State](/usc/42/1396b.md?p=w-7-D) for expenditures, for medical assistance for items or services, attributable to taxes of general applicability imposed with respect to the provision of such items or services.
- (u) **Qualified COBRA continuation beneficiaries—**
  - (1) Individuals described in this paragraph are individuals—
    - (A) who are entitled to elect [COBRA continuation coverage](#u-3) (as defined in [paragraph (3)](#u-3)),
    - (B) whose [income](/usc/42/292s.md?p=c-4) (as determined under [section 1382a of this title](/usc/42/1382a.md) for purposes of the supplemental security [income](/usc/42/292s.md?p=c-4) [program](/usc/42/274l–1.md?p=4)) does not exceed 100 percent of the [official poverty line](/usc/42/254c–12.md?p=1) (as defined by the [Office](/usc/42/3058f.md?p=1) of Management and Budget, and revised annually in accordance with [section 9902(2) of this title](/usc/42/9902.md?p=2)) applicable to a [family](/usc/42/290ff–4.md?p=d-2) of the size involved,
    - (C) whose resources (as determined under [section 1382b of this title](/usc/42/1382b.md) for purposes of the supplemental security [income](/usc/42/292s.md?p=c-4) [program](/usc/42/274l–1.md?p=4)) do not exceed twice the maximum amount of resources that an individual may have and obtain benefits under that [program](/usc/42/274l–1.md?p=4), and
    - (D) with respect to whose enrollment for [COBRA continuation coverage](#u-3) the [State](/usc/42/1396b.md?p=w-7-D) has determined that the savings in expenditures under this subchapter resulting from such enrollment is likely to exceed the amount of payments for COBRA premiums made.
  - (2) For purposes of [subsection (a)(10)(F)](#a-10-F) and this subsection, the term “COBRA premiums” means the applicable premium imposed with respect to [COBRA continuation coverage](#u-3).
  - (3) In this subsection, the term “COBRA continuation coverage” means coverage under a [group health plan](/usc/42/1320d–9.md?p=b-2) provided by an employer with 75 or more [employees](/usc/42/1320a–7h.md?p=e-7) provided pursuant to title XXII of the Public Health Service Act [[42 U.S.C. 300bb–1](/usc/42/300bb–1.md) et seq.], section 4980B of the Internal Revenue Code of 1986, or title VI[^1] of the [Employee](/usc/42/1320a–7h.md?p=e-7) Retirement [Income](/usc/42/292s.md?p=c-4) Security Act of 1974.
  - (4) Notwithstanding [subsection (a)(17)](#a-17), for individuals described in [paragraph (1)](#u-1) who are covered under the [State](/usc/42/1396b.md?p=w-7-D) plan by virtue of [subsection (a)(10)(A)(ii)(XI)](#a-10-A-ii-XI)—
    - (A) the [income](/usc/42/292s.md?p=c-4) [standard](/usc/42/1320d.md?p=7) to be applied is the [income](/usc/42/292s.md?p=c-4) [standard](/usc/42/1320d.md?p=7) described in [paragraph (1)(B)](#u-1-B), and
    - (B) except as provided in [section 1382a(b)(4)(B)(ii) of this title](/usc/42/1382a.md), costs incurred for [medical care](/usc/42/1301.md?p=a-7) or for any other type of remedial care shall not be taken into account in determining [income](/usc/42/292s.md?p=c-4).

    Any different [treatment](/usc/42/11851.md?p=11) provided under this paragraph for such individuals shall not, because of subsection [(a)(10)(B)](#a-10-B) or [(a)(17)](#a-17), require or permit such [treatment](/usc/42/11851.md?p=11) for other individuals.

- (v) **State agency disability and blindness determinations for medical assistance eligibility—** A [State](/usc/42/1396b.md?p=w-7-D) plan may provide for the making of determinations of disability or blindness for the purpose of determining eligibility for medical assistance under the [State](/usc/42/1396b.md?p=w-7-D) plan by the [single](/usc/42/2304.md?p=m) [State agency](/usc/42/1320a–7a.md?p=i-1) or its designee, and make medical assistance available to individuals whom it finds to be blind or disabled and who are determined otherwise eligible for such assistance during the period of time prior to which a final determination of disability or blindness is made by the [Social](/usc/42/1397j.md?p=20) Security [Administration](/usc/42/1301.md?p=a-10) with respect to such an individual. In making such determinations, the [State](/usc/42/1396b.md?p=w-7-D) must apply the definitions of disability and blindness found in [section 1382c(a) of this title](/usc/42/1382c.md?p=a).
- (w) **Maintenance of written policies and procedures respecting advance directives—**
  - (1) For purposes of [subsection (a)(57)](#a-57) and sections [1396b(m)(1)(A)](/usc/42/1396b.md?p=m-1-A) and [1396r(c)(2)(E)](/usc/42/1396r.md?p=c-2-E) of this title, the requirement of this subsection is that a provider or organization (as the case may be) maintain written policies and procedures with respect to all adult individuals receiving [medical care](/usc/42/1301.md?p=a-7) by or through the provider or organization—
    - (A) to provide written information to each such individual concerning—
      - (i) an individual’s rights under [State](/usc/42/1396b.md?p=w-7-D) law (whether statutory or as recognized by the courts of the [State](/usc/42/1396b.md?p=w-7-D)) to make decisions concerning such [medical care](/usc/42/1301.md?p=a-7), [including](/usc/42/1301.md?p=b) the right to accept or refuse medical or surgical [treatment](/usc/42/11851.md?p=11) and the right to formulate [advance directives](#w-4) (as defined in [paragraph (3)](#w-3)), and
      - (ii) the provider’s or organization’s written policies respecting the implementation of such rights;
    - (B) to document in the individual’s medical record whether or not the individual has executed an [advance directive](#w-4);
    - (C) not to condition the provision of care or otherwise discriminate against an individual based on whether or not the individual has executed an [advance directive](#w-4);
    - (D) to ensure compliance with requirements of [State](/usc/42/1396b.md?p=w-7-D) law (whether statutory or as recognized by the courts of the [State](/usc/42/1396b.md?p=w-7-D)) respecting [advance directives](#w-4); and
    - (E) to provide (individually or with others) for education for staff and the community on issues concerning [advance directives](#w-4).

    [Subparagraph (C)](#w-1-C) shall not be construed as requiring the provision of care which conflicts with an [advance directive](#w-4).

  - (2) The written information described in [paragraph (1)(A)](#w-1-A) shall be provided to an adult individual—
    - (A) in the case of a [hospital](/usc/42/1395dd.md?p=e-5), at the time of the individual’s admission as an inpatient,
    - (B) in the case of a [nursing facility](/usc/42/1396r.md?p=a), at the time of the individual’s admission as a resident,
    - (C) in the case of a provider of home health care or [personal care services](/usc/42/1396b.md?p=l-5-C), in advance of the individual coming under the care of the provider,
    - (D) in the case of a hospice [program](/usc/42/274l–1.md?p=4), at the time of initial receipt of [hospice care](/usc/42/1396d.md?p=o-1-A) by the individual from the [program](/usc/42/274l–1.md?p=4), and
    - (E) in the case of a [medicaid managed care organization](/usc/42/1396b.md?p=m-1-A), at the time of enrollment of the individual with the organization.
  - (3) Nothing in this section shall be construed to prohibit the application of a [State](/usc/42/1396b.md?p=w-7-D) law which allows for an objection on the basis of conscience for any [health care provider](/usc/42/300jj.md?p=3) or any agent of such provider which as a matter of conscience cannot implement an [advance directive](#w-4).
  - (4) In this subsection, the term “advance directive” means a written instruction, such as a living will or durable power of attorney for health care, recognized under [State](/usc/42/1396b.md?p=w-7-D) law (whether statutory or as recognized by the courts of the [State](/usc/42/1396b.md?p=w-7-D)) and relating to the provision of such care when the individual is incapacitated.
  - (5) For [construction](/usc/42/7479.md?p=2-C) relating to this subsection, see [section 14406 of this title](/usc/42/14406.md) (relating to clarification respecting assisted suicide, euthanasia, and mercy killing).
- (x) **Physician identifier system; establishment—** The [Secretary](/usc/42/1301.md?p=a-6) shall establish a system, for implementation by not later than July 1, 1991, which provides for a unique identifier for each [physician](/usc/42/1301.md?p=a-7) who furnishes services for which payment may be made under a [State](/usc/42/1396b.md?p=w-7-D) plan approved under this subchapter.
- (y) **Intermediate sanctions for psychiatric hospitals—**
  - (1) In addition to any other authority under [State](/usc/42/1396b.md?p=w-7-D) law, where a [State](/usc/42/1396b.md?p=w-7-D) determines that a psychiatric [hospital](/usc/42/1395dd.md?p=e-5) which is certified for participation under its plan no longer meets the requirements for a psychiatric [hospital](/usc/42/1395dd.md?p=e-5) (referred to in [section 1396d(h) of this title](/usc/42/1396d.md?p=h)) and further finds that the [hospital](/usc/42/1395dd.md?p=e-5)’s deficiencies—
    - (A) immediately jeopardize the health and safety of its patients, the [State](/usc/42/1396b.md?p=w-7-D) shall terminate the [hospital](/usc/42/1395dd.md?p=e-5)’s participation under the [State](/usc/42/1396b.md?p=w-7-D) plan; or
    - (B) do not immediately jeopardize the health and safety of its patients, the [State](/usc/42/1396b.md?p=w-7-D) may terminate the [hospital](/usc/42/1395dd.md?p=e-5)’s participation under the [State](/usc/42/1396b.md?p=w-7-D) plan, or provide that no payment will be made under the [State](/usc/42/1396b.md?p=w-7-D) plan with respect to any individual admitted to such [hospital](/usc/42/1395dd.md?p=e-5) after the effective date of the finding, or both.
  - (2) Except as provided in [paragraph (3)](#y-3), if a psychiatric [hospital](/usc/42/1395dd.md?p=e-5) described in [paragraph (1)(B)](#y-1-B) has not complied with the requirements for a psychiatric [hospital](/usc/42/1395dd.md?p=e-5) under this subchapter—
    - (A) within 3 months after the date the [hospital](/usc/42/1395dd.md?p=e-5) is found to be out of compliance with such requirements, the [State](/usc/42/1396b.md?p=w-7-D) shall provide that no payment will be made under the [State](/usc/42/1396b.md?p=w-7-D) plan with respect to any individual admitted to such [hospital](/usc/42/1395dd.md?p=e-5) after the end of such 3-month period, or
    - (B) within 6 months after the date the [hospital](/usc/42/1395dd.md?p=e-5) is found to be out of compliance with such requirements, no Federal financial participation shall be provided under [section 1396b(a) of this title](/usc/42/1396b.md?p=a) with respect to further services provided in the [hospital](/usc/42/1395dd.md?p=e-5) until the [State](/usc/42/1396b.md?p=w-7-D) finds that the [hospital](/usc/42/1395dd.md?p=e-5) is in compliance with the requirements of this subchapter.
  - (3) The [Secretary](/usc/42/1301.md?p=a-6) may continue payments, over a period of not longer than 6 months from the date the [hospital](/usc/42/1395dd.md?p=e-5) is found to be out of compliance with such requirements, if—
    - (A) the [State](/usc/42/1396b.md?p=w-7-D) finds that it is more appropriate to take alternative action to assure compliance of the [hospital](/usc/42/1395dd.md?p=e-5) with the requirements than to terminate the certification of the [hospital](/usc/42/1395dd.md?p=e-5),
    - (B) the [State](/usc/42/1396b.md?p=w-7-D) has submitted a plan and timetable for corrective action to the [Secretary](/usc/42/1301.md?p=a-6) for approval and the [Secretary](/usc/42/1301.md?p=a-6) approves the plan of corrective action, and
    - (C) the [State](/usc/42/1396b.md?p=w-7-D) agrees to repay to the Federal Government payments received under this paragraph if the corrective action is not taken in accordance with the approved plan and timetable.
- (z) **Optional coverage of TB-related services—**
  - (1) Individuals described in this paragraph are individuals not described in [subsection (a)(10)(A)(i)](#a-10-A-i)—
    - (A) who are infected with tuberculosis;
    - (B) whose [income](/usc/42/292s.md?p=c-4) (as determined under the [State](/usc/42/1396b.md?p=w-7-D) plan under this subchapter with respect to disabled individuals) does not exceed the maximum amount of [income](/usc/42/292s.md?p=c-4) a disabled individual described in [subsection (a)(10)(A)(i)](#a-10-A-i) may have and obtain medical assistance under the plan; and
    - (C) whose resources (as determined under the [State](/usc/42/1396b.md?p=w-7-D) plan under this subchapter with respect to disabled individuals) do not exceed the maximum amount of resources a disabled individual described in [subsection (a)(10)(A)(i)](#a-10-A-i) may have and obtain medical assistance under the plan.
  - (2) For purposes of [subsection (a)(10)](#a-10), the term “TB-related services” means each of the following services relating to [treatment](/usc/42/11851.md?p=11) of infection with tuberculosis:
    - (A) Prescribed [drugs](/usc/42/282.md?p=j-1-A-vii).
    - (B) [Physicians](/usc/42/1396d.md?p=e)’ services and services described in [section 1396d(a)(2) of this title](/usc/42/1396d.md?p=a-2).
    - (C) [Laboratory](/usc/42/300jj.md?p=10) and X-ray services ([including](/usc/42/1301.md?p=b) services to confirm the presence of infection).
    - (D) Clinic services and [Federally-qualified health center services](/usc/42/1396d.md?p=l-2-A).
    - (E) Case management services (as defined in [section 1396n(g)(2) of this title](/usc/42/1396n.md?p=g-2)).
    - (F) Services (other than room and [board](/usc/42/10261.md?p=2)) designed to encourage completion of regimens of prescribed [drugs](/usc/42/282.md?p=j-1-A-vii) by outpatients, [including](/usc/42/1301.md?p=b) services to observe directly the intake of prescribed [drugs](/usc/42/282.md?p=j-1-A-vii).
- (aa) **Certain breast or cervical cancer patients—** Individuals described in this subsection are individuals who—
  - (1) are not described in [subsection (a)(10)(A)(i)](#a-10-A-i);
  - (2) have not attained age 65;
  - (3) have been screened for breast and cervical cancer under the Centers for Disease Control and Prevention breast and cervical cancer early detection [program](/usc/42/274l–1.md?p=4) established under title XV of the Public Health Service Act ([42 U.S.C. 300k](/usc/42/300k.md) et seq.) in accordance with the requirements of [section 1504](/usc/42/1504.md) of that Act ([42 U.S.C. 300n](/usc/42/300n.md)) and need [treatment](/usc/42/11851.md?p=11) for breast or cervical cancer; and
  - (4) are not otherwise covered under creditable coverage, as defined in [section 2701(c)](/usc/42/2701.md)[^1] of the Public Health Service Act ([42 U.S.C. 300gg(c)](/usc/42/300gg.md)), but applied without regard to [paragraph (1)(F)](/usc/42/300gg.md) of such section.
- (bb) **Payment for services provided by Federally-qualified health centers and rural health clinics—**
  - (1) **In general—** Beginning with fiscal year 2001 with respect to services furnished on or after January 1, 2001, and each succeeding fiscal year, the [State](/usc/42/1396b.md?p=w-7-D) plan shall provide for payment for services described in [section 1396d(a)(2)(C) of this title](/usc/42/1396d.md) furnished by a [Federally-qualified health center](/usc/42/1396d.md?p=l-2-B) and services described in [section 1396d(a)(2)(B) of this title](/usc/42/1396d.md) furnished by a [rural health clinic](/usc/42/254c.md?p=b-2) in accordance with the provisions of this subsection.
  - (2) **Fiscal year 2001—** Subject to [paragraph (4)](#bb-4), for services furnished on and after January 1, 2001, during fiscal year 2001, the [State](/usc/42/1396b.md?p=w-7-D) plan shall provide for payment for such services in an amount (calculated on a per visit basis) that is equal to 100 percent of the average of the costs of the center or clinic of furnishing such services during fiscal years 1999 and 2000 which are reasonable and related to the cost of furnishing such services, or based on such other tests of reasonableness as the [Secretary](/usc/42/1301.md?p=a-6) prescribes in regulations under [section 1395l(a)(3)](/usc/42/1395l.md?p=a-3) of this title, or, in the case of services to which such regulations do not apply, the same methodology used under [section 1395l(a)(3)](/usc/42/1395l.md?p=a-3) of this title, adjusted to take into account any increase or decrease in the scope of such services furnished by the center or clinic during fiscal year 2001.
  - (3) **Fiscal year 2002 and succeeding fiscal years—** Subject to [paragraph (4)](#bb-4), for services furnished during fiscal year 2002 or a succeeding fiscal year, the [State](/usc/42/1396b.md?p=w-7-D) plan shall provide for payment for such services in an amount (calculated on a per visit basis) that is equal to the amount calculated for such services under this subsection for the preceding fiscal year—
    - (A) increased by the percentage increase in the MEI (as defined in [section 1395u(i)(3) of this title](/usc/42/1395u.md?p=i-3)) applicable to primary care services (as defined in [section 1395u(i)(4) of this title](/usc/42/1395u.md?p=i-4)) for that fiscal year; and
    - (B) adjusted to take into account any increase or decrease in the scope of such services furnished by the center or clinic during that fiscal year.
  - (4) **Establishment of initial year payment amount for new centers or clinics—** In any case in which an entity first qualifies as a [Federally-qualified health center](/usc/42/1396d.md?p=l-2-B) or [rural health clinic](/usc/42/254c.md?p=b-2) after fiscal year 2000, the [State](/usc/42/1396b.md?p=w-7-D) plan shall provide for payment for services described in [section 1396d(a)(2)(C) of this title](/usc/42/1396d.md) furnished by the center or services described in [section 1396d(a)(2)(B) of this title](/usc/42/1396d.md) furnished by the clinic in the first fiscal year in which the center or clinic so qualifies in an amount (calculated on a per visit basis) that is equal to 100 percent of the costs of furnishing such services during such fiscal year based on the rates established under this subsection for the fiscal year for other such centers or clinics located in the same or adjacent area with a similar case load or, in the absence of such a center or clinic, in accordance with the regulations and methodology referred to in [paragraph (2)](#bb-2) or based on such other tests of reasonableness as the [Secretary](/usc/42/1301.md?p=a-6) may specify. For each fiscal year following the fiscal year in which the entity first qualifies as a [Federally-qualified health center](/usc/42/1396d.md?p=l-2-B) or [rural health clinic](/usc/42/254c.md?p=b-2), the [State](/usc/42/1396b.md?p=w-7-D) plan shall provide for the payment amount to be calculated in accordance with [paragraph (3)](#bb-3).
  - (5) **Administration in the case of managed care—**
    - (A) **In general—** In the case of services furnished by a [Federally-qualified health center](/usc/42/1396d.md?p=l-2-B) or [rural health clinic](/usc/42/254c.md?p=b-2) pursuant to a contract between the center or clinic and a [managed care entity](/usc/42/1396b.md?p=m-9-D-i) (as defined in [section 1396u–2(a)(1)(B) of this title](/usc/42/1396u–2.md?p=a-1-B)), the [State](/usc/42/1396b.md?p=w-7-D) plan shall provide for payment to the center or clinic by the [State](/usc/42/1396b.md?p=w-7-D) of a supplemental payment equal to the amount (if any) by which the amount determined under paragraphs (2), (3), and (4) of this subsection exceeds the amount of the payments provided under the contract.
    - (B) **Payment schedule—** The supplemental payment required under [subparagraph (A)](#bb-5-A) shall be made pursuant to a payment schedule agreed to by the [State](/usc/42/1396b.md?p=w-7-D) and the [Federally-qualified health center](/usc/42/1396d.md?p=l-2-B) or [rural health clinic](/usc/42/254c.md?p=b-2), but in no case less frequently than every 4 months.
  - (6) **Alternative payment methodologies—** Notwithstanding any other provision of this section, the [State](/usc/42/1396b.md?p=w-7-D) plan may provide for payment in any fiscal year to a [Federally-qualified health center](/usc/42/1396d.md?p=l-2-B) for services described in [section 1396d(a)(2)(C) of this title](/usc/42/1396d.md) or to a [rural health clinic](/usc/42/254c.md?p=b-2) for services described in [section 1396d(a)(2)(B) of this title](/usc/42/1396d.md) in an amount which is determined under an alternative payment methodology that—
    - (A) is agreed to by the [State](/usc/42/1396b.md?p=w-7-D) and the center or clinic; and
    - (B) results in payment to the center or clinic of an amount which is at least equal to the amount otherwise required to be paid to the center or clinic under this section.
- (cc) **Disabled children eligible to receive medical assistance at option of State—**
  - (1) Individuals described in this paragraph are individuals—
    - (A) who are [children](/usc/42/256e.md?p=g-2) who have not attained 19 years of age and are born—
      - (i) on or after January 1, 2001 (or, at the option of a [State](/usc/42/1396b.md?p=w-7-D), on or after an earlier date), in the case of the second, third, and fourth quarters of fiscal year 2007;
      - (ii) on or after October 1, 1995 (or, at the option of a [State](/usc/42/1396b.md?p=w-7-D), on or after an earlier date), in the case of each quarter of fiscal year 2008; and
      - (iii) after October 1, 1989, in the case of each quarter of fiscal year 2009 and each quarter of any fiscal year thereafter;
    - (B) who would be considered disabled under [section 1382c(a)(3)(C) of this title](/usc/42/1382c.md?p=a-3-C) (as determined under subchapter XVI for [children](/usc/42/256e.md?p=g-2) but without regard to any [income](/usc/42/292s.md?p=c-4) or asset eligibility requirements that apply under such subchapter with respect to [children](/usc/42/256e.md?p=g-2)); and
    - (C) whose [family](/usc/42/290ff–4.md?p=d-2) [income](/usc/42/292s.md?p=c-4) does not exceed such [income](/usc/42/292s.md?p=c-4) level as the [State](/usc/42/1396b.md?p=w-7-D) establishes and does not exceed—
      - (i) 300 percent of the [poverty line](/usc/42/1395w–114.md?p=a-3-C-ii) (as defined in [section 1397jj(c)(5) of this title](/usc/42/1397jj.md?p=c-5)) applicable to a [family](/usc/42/290ff–4.md?p=d-2) of the size involved; or
      - (ii) such higher percent of such [poverty line](/usc/42/1395w–114.md?p=a-3-C-ii) as a [State](/usc/42/1396b.md?p=w-7-D) may establish, except that—
        - (I) any medical assistance provided to an individual whose [family](/usc/42/290ff–4.md?p=d-2) [income](/usc/42/292s.md?p=c-4) exceeds 300 percent of such [poverty line](/usc/42/1395w–114.md?p=a-3-C-ii) may only be provided with [State](/usc/42/1396b.md?p=w-7-D) [funds](/usc/42/12854.md?p=3); and
        - (II) no Federal financial participation shall be provided under [section 1396b(a) of this title](/usc/42/1396b.md?p=a) for any medical assistance provided to such an individual.
  - (2)
    - (A) If an employer of a [parent](#k-3) of an individual described in [paragraph (1)](#cc-1) offers [family](/usc/42/290ff–4.md?p=d-2) coverage under a [group health plan](/usc/42/1320d–9.md?p=b-2) (as defined in section 2791(a) of the Public Health Service Act [[42 U.S.C. 300gg–91(a)](/usc/42/300gg–91.md?p=a)]), the [State](/usc/42/1396b.md?p=w-7-D) shall—
      - (i) notwithstanding [section 1396e of this title](/usc/42/1396e.md), require such [parent](#k-3) to apply for, enroll in, and pay premiums for such coverage as a condition of such [parent](#k-3)’s [child](/usc/42/416.md?p=e) being or remaining eligible for medical assistance under [subsection (a)(10)(A)(ii)(XIX)](#a-10-A-ii-XIX) if the [parent](#k-3) is determined eligible for such coverage and the employer contributes at least 50 percent of the total cost of annual premiums for such coverage; and
      - (ii) if such coverage is obtained—
        - (I) subject to [paragraph (2)](/usc/42/1396o.md) of section 1396o(h)[^17] of this title, reduce the premium imposed by the [State](/usc/42/1396b.md?p=w-7-D) under that section in an amount that reasonably reflects the premium contribution made by the [parent](#k-3) for private coverage on behalf of a [child](/usc/42/416.md?p=e) with a disability; and
        - (II) treat such coverage as a third party liability under [subsection (a)(25)](#a-25).
    - (B) In the case of a [parent](#k-3) to which [subparagraph (A)](#cc-2-A) applies, a [State](/usc/42/1396b.md?p=w-7-D), notwithstanding [section 1396e of this title](/usc/42/1396e.md) but subject to [paragraph (1)(C)(ii)](#cc-1-C-ii), may provide for payment of any portion of the annual premium for such [family](/usc/42/290ff–4.md?p=d-2) coverage that the [parent](#k-3) is required to pay. Any payments made by the [State](/usc/42/1396b.md?p=w-7-D) under this subparagraph shall be considered, for purposes of [section 1396b(a) of this title](/usc/42/1396b.md?p=a), to be payments for medical assistance.
- (dd) **Electronic transmission of information—** If the [State agency](/usc/42/1320a–7a.md?p=i-1) determining eligibility for medical assistance under this subchapter or [child health assistance](/usc/42/1397ll.md?p=d-1) under subchapter XXI verifies an element of eligibility based on information from an Express Lane Agency[^18] (as defined in [subsection (e)(13)(F)](#e-13-F)), or from another [public agency](/usc/42/11851.md?p=8), then the applicant’s signature under penalty of perjury shall not be required as to such element. Any signature requirement for an application for medical assistance may be satisfied through an electronic signature, as defined in section 1710(1) of the Government Paperwork Elimination Act ([44 U.S.C. 3504](/usc/44/3504.md) note). The requirements of subparagraphs (A) and (B) of [section 1320b–7(d)(2) of this title](/usc/42/1320b–7.md?p=d-2) may be met through evidence in digital or electronic form.
- (ee) **Alternate State process for verification of citizenship or nationality declaration—**
  - (1) For purposes of [subsection (a)(46)(B)(ii)](#a-46-B-ii), the requirements of this subsection with respect to an individual declaring to be a citizen or national of the [United States](/usc/42/1301.md?p=a-2) for purposes of establishing eligibility under this subchapter, are, in lieu of requiring the individual to present satisfactory documentary evidence of citizenship or nationality under [section 1396b(x) of this title](/usc/42/1396b.md?p=x) (if the individual is not described in [paragraph (2)](/usc/42/1396b.md?p=x-2) of that section), as follows:
    - (A) The [State](/usc/42/1396b.md?p=w-7-D) submits the name and [social](/usc/42/1397j.md?p=20) security number of the individual to the [Commissioner](/usc/42/12302.md?p=1) of [Social](/usc/42/1397j.md?p=20) Security as part of the [program](/usc/42/274l–1.md?p=4) established under [paragraph (2)](#ee-2).
    - (B) If the [State](/usc/42/1396b.md?p=w-7-D) receives notice from the [Commissioner](/usc/42/12302.md?p=1) of [Social](/usc/42/1397j.md?p=20) Security that the name or [social](/usc/42/1397j.md?p=20) security number, or the [declaration](/usc/42/247d–6e.md?p=e-4) of citizenship or nationality, of the individual is inconsistent with information in the records maintained by the [Commissioner](/usc/42/12302.md?p=1)—
      - (i) the [State](/usc/42/1396b.md?p=w-7-D) makes a reasonable effort to identify and address the [causes](/usc/42/9908.md?p=c-2) of such inconsistency, [including](/usc/42/1301.md?p=b) through typographical or other clerical errors, by contacting the individual to confirm the accuracy of the name or [social](/usc/42/1397j.md?p=20) security number submitted or [declaration](/usc/42/247d–6e.md?p=e-4) of citizenship or nationality and by taking such additional actions as the [Secretary](/usc/42/1301.md?p=a-6), through regulation or other guidance, or the [State](/usc/42/1396b.md?p=w-7-D) may identify, and continues to provide the individual with medical assistance while making such effort; and
      - (ii) in the case such inconsistency is not resolved under [clause (i)](#ee-1-B-i), the [State](/usc/42/1396b.md?p=w-7-D)—
        - (I) notifies the individual of such fact;
        - (II) provides the individual with a period of 90 days from the date on which the notice required under [subclause (I)](#ee-1-B-ii-I) is received by the individual to either present satisfactory documentary evidence of citizenship or nationality (as defined in [section 1396b(x)(3) of this title](/usc/42/1396b.md?p=x-3)) or resolve the inconsistency with the [Commissioner](/usc/42/12302.md?p=1) of [Social](/usc/42/1397j.md?p=20) Security (and continues to provide the individual with medical assistance during such 90-day period); and
        - (III) disenrolls the individual from the [State](/usc/42/1396b.md?p=w-7-D) plan under this subchapter within 30 days after the end of such 90-day period if no such documentary evidence is presented or if such inconsistency is not resolved.
  - (2)
    - (A) Each [State](/usc/42/1396b.md?p=w-7-D) electing to satisfy the requirements of this subsection for purposes of [section 1396a(a)(46)(B) of this title](#a-46-B) shall establish a [program](/usc/42/274l–1.md?p=4) under which the [State](/usc/42/1396b.md?p=w-7-D) submits at least monthly to the [Commissioner](/usc/42/12302.md?p=1) of [Social](/usc/42/1397j.md?p=20) Security for comparison of the name and [social](/usc/42/1397j.md?p=20) security number, of each individual newly enrolled in the [State](/usc/42/1396b.md?p=w-7-D) plan under this subchapter that month who is not described in [section 1396b(x)(2) of this title](/usc/42/1396b.md?p=x-2) and who declares to be a [United States](/usc/42/1301.md?p=a-2) citizen or national, with information in records maintained by the [Commissioner](/usc/42/12302.md?p=1).
    - (B) In establishing the [State](/usc/42/1396b.md?p=w-7-D) [program](/usc/42/274l–1.md?p=4) under this paragraph, the [State](/usc/42/1396b.md?p=w-7-D) may enter into an [agreement](/usc/42/1320b–8.md?p=a-3-A) with the [Commissioner](/usc/42/12302.md?p=1) of [Social](/usc/42/1397j.md?p=20) Security—
      - (i) to provide, through an on-line system or otherwise, for the electronic submission of, and response to, the information submitted under [subparagraph (A)](#ee-2-A) for an individual enrolled in the [State](/usc/42/1396b.md?p=w-7-D) plan under this subchapter who declares to be[^19] citizen or national on at least a monthly basis; or
      - (ii) to provide for a determination of the consistency of the information submitted with the information maintained in the records of the [Commissioner](/usc/42/12302.md?p=1) through such other method as agreed to by the [State](/usc/42/1396b.md?p=w-7-D) and the [Commissioner](/usc/42/12302.md?p=1) and approved by the [Secretary](/usc/42/1301.md?p=a-6), provided that such method is no more burdensome for individuals to comply with than any burdens that may apply under a method described in [clause (i)](#ee-2-B-i).
    - (C) The [program](/usc/42/274l–1.md?p=4) established under this paragraph shall provide that, in the case of any individual who is required to submit a [social](/usc/42/1397j.md?p=20) security number to the [State](/usc/42/1396b.md?p=w-7-D) under [subparagraph (A)](#ee-2-A) and who is unable to provide the [State](/usc/42/1396b.md?p=w-7-D) with such number, shall be provided with at least the reasonable opportunity to present satisfactory documentary evidence of citizenship or nationality (as defined in [section 1396b(x)(3) of this title](/usc/42/1396b.md?p=x-3)) as is provided under clauses (i) and (ii) of [section 1320b–7(d)(4)(A) of this title](/usc/42/1320b–7.md?p=d-4-A) to an individual for the submittal to the [State](/usc/42/1396b.md?p=w-7-D) of evidence indicating a satisfactory immigration status.
  - (3)
    - (A) The [State agency](/usc/42/1320a–7a.md?p=i-1) implementing the plan approved under this subchapter shall, at such times and in such form as the [Secretary](/usc/42/1301.md?p=a-6) may specify, provide information on the percentage each month that the inconsistent submissions bears to the total submissions made for comparison for such month. For purposes of this subparagraph, a name, [social](/usc/42/1397j.md?p=20) security number, or [declaration](/usc/42/247d–6e.md?p=e-4) of citizenship or nationality of an individual shall be treated as inconsistent and included in the determination of such percentage only if—
      - (i) the information submitted by the individual is not consistent with information in records maintained by the [Commissioner](/usc/42/12302.md?p=1) of [Social](/usc/42/1397j.md?p=20) Security;
      - (ii) the inconsistency is not resolved by the [State](/usc/42/1396b.md?p=w-7-D);
      - (iii) the individual was provided with a reasonable period of time to resolve the inconsistency with the [Commissioner](/usc/42/12302.md?p=1) of [Social](/usc/42/1397j.md?p=20) Security or provide satisfactory documentation of citizenship status and did not successfully resolve such inconsistency; and
      - (iv) payment has been made for an item or service furnished to the individual under this subchapter.
    - (B) If, for any fiscal year, the average monthly percentage determined under [subparagraph (A)](#ee-3-A) is greater than 3 percent—
      - (i) the [State](/usc/42/1396b.md?p=w-7-D) shall develop and adopt a corrective plan to review its procedures for verifying the identities of individuals seeking to enroll in the [State](/usc/42/1396b.md?p=w-7-D) plan under this subchapter and to identify and implement changes in such procedures to improve their accuracy; and
      - (ii) pay to the [Secretary](/usc/42/1301.md?p=a-6) an amount equal to the amount which bears the same ratio to the total payments under the [State](/usc/42/1396b.md?p=w-7-D) plan for the fiscal year for providing medical assistance to individuals who provided inconsistent information as the number of individuals with inconsistent information in excess of 3 percent of such total submitted bears to the total number of individuals with inconsistent information.
    - (C) The [Secretary](/usc/42/1301.md?p=a-6) may waive, in certain limited cases, all or part of the payment under [subparagraph (B)(ii)](#ee-3-B-ii) if the [State](/usc/42/1396b.md?p=w-7-D) is unable to reach the allowable error rate despite a good faith effort by such [State](/usc/42/1396b.md?p=w-7-D).
    - (D) Subparagraphs [(A)](#ee-3-A) and [(B)](#ee-3-B) shall not apply to a [State](/usc/42/1396b.md?p=w-7-D) for a fiscal year if there is an [agreement](/usc/42/1320b–8.md?p=a-3-A) described in [paragraph (2)(B)](#ee-2-B) in effect as of the close of the fiscal year that provides for the submission on a real-time basis of the information described in such paragraph.
  - (4) Nothing in this subsection shall affect the rights of any individual under this subchapter to appeal any disenrollment from a [State](/usc/42/1396b.md?p=w-7-D) plan.
- (ff) **Disregard of certain property in determination of eligibility of Indians—** Notwithstanding any other requirement of this subchapter or any other provision of Federal or [State](/usc/42/1396b.md?p=w-7-D) law, a [State](/usc/42/1396b.md?p=w-7-D) shall disregard the following property from resources for purposes of determining the eligibility of an individual who is an [Indian](/usc/42/6862.md?p=6) for medical assistance under this subchapter:
  - (1) Property, [including](/usc/42/1301.md?p=b) real property and improvements, that is held in [trust](/usc/42/12854.md?p=6), subject to Federal restrictions, or otherwise under the supervision of the [Secretary](/usc/42/1301.md?p=a-6) of the Interior, located on a reservation, [including](/usc/42/1301.md?p=b) any federally recognized [Indian Tribe](/usc/42/1397j.md?p=12-A)’s reservation, pueblo, or colony, [including](/usc/42/1301.md?p=b) former reservations in Oklahoma, Alaska Native regions established by the Alaska Native [Claims](/usc/42/1320a–7a.md?p=i-2) Settlement Act [[43 U.S.C. 1601](/usc/43/1601.md) et seq.], and [Indian](/usc/42/6862.md?p=6) allotments on or near a reservation as designated and approved by the Bureau of [Indian](/usc/42/6862.md?p=6) Affairs of the Department of the Interior.
  - (2) For any federally recognized Tribe not described in [paragraph (1)](#ff-1), property located within the most recent boundaries of a prior Federal reservation.
  - (3) Ownership interests in rents, leases, royalties, or usage rights related to natural resources ([including](/usc/42/1301.md?p=b) extraction of natural resources or harvesting of timber, other plants and plant products, animals, fish, and shellfish) resulting from the exercise of federally protected rights.
  - (4) Ownership interests in or usage rights to items not covered by [paragraphs (1) through (3)](#ff-1..ff-3) that have unique religious, spiritual, traditional, or cultural significance or rights that support subsistence or a traditional lifestyle according to applicable tribal law or custom.
- (gg) **Maintenance of effort—**
  - (1) **General requirement to maintain eligibility standards until State exchange is fully operational—** Subject to the succeeding paragraphs of this subsection, during the period that begins on March 23, 2010, and ends on the date on which the [Secretary](/usc/42/1301.md?p=a-6) determines that an [Exchange](/usc/42/300gg–91.md?p=d-21) established by the [State](/usc/42/1396b.md?p=w-7-D) under [section 18031 of this title](/usc/42/18031.md) is fully operational, as a condition for receiving any Federal payments under [section 1396b(a) of this title](/usc/42/1396b.md?p=a) for calendar quarters occurring during such period, a [State](/usc/42/1396b.md?p=w-7-D) shall not have in effect eligibility [standards](/usc/42/1320d.md?p=7), methodologies, or procedures under the [State](/usc/42/1396b.md?p=w-7-D) plan under this subchapter or under any waiver of such plan that is in effect during that period, that are more restrictive than the eligibility [standards](/usc/42/1320d.md?p=7), methodologies, or procedures, respectively, under the plan or waiver that are in effect on March 23, 2010.
  - (2) **Continuation of eligibility standards for children through September 30, 2029—** The requirement under [paragraph (1)](#gg-1) shall continue to apply to a [State](/usc/42/1396b.md?p=w-7-D) through September 30, 2029, (but during the period that begins on October 1, 2019, and ends on September 30, 2029, only with respect to [children](/usc/42/256e.md?p=g-2) in [families](/usc/42/12704.md?p=11) whose [income](/usc/42/292s.md?p=c-4) does not exceed 300 percent of the [poverty line](/usc/42/1395w–114.md?p=a-3-C-ii) (as defined in [section 1397jj(c)(5) of this title](/usc/42/1397jj.md?p=c-5)) applicable to a [family](/usc/42/290ff–4.md?p=d-2) of the size involved) with respect to the eligibility [standards](/usc/42/1320d.md?p=7), methodologies, and procedures under the [State](/usc/42/1396b.md?p=w-7-D) plan under this subchapter or under any waiver of such plan that are applicable to determining the eligibility for medical assistance of any [child](/usc/42/416.md?p=e) who is under 19 years of age (or such higher age as the [State](/usc/42/1396b.md?p=w-7-D) may have elected).
  - (3) **Nonapplication—** During the period that begins on January 1, 2011, and ends on December 31, 2013, the requirement under [paragraph (1)](#gg-1) shall not apply to a [State](/usc/42/1396b.md?p=w-7-D) with respect to nonpregnant, nondisabled adults who are eligible for medical assistance under the [State](/usc/42/1396b.md?p=w-7-D) plan or under a waiver of the plan at the option of the [State](/usc/42/1396b.md?p=w-7-D) and whose [income](/usc/42/292s.md?p=c-4) exceeds 133 percent of the [poverty line](/usc/42/1395w–114.md?p=a-3-C-ii) (as defined in [section 1397jj(c)(5) of this title](/usc/42/1397jj.md?p=c-5)) applicable to a [family](/usc/42/290ff–4.md?p=d-2) of the size involved if, on or after December 31, 2010, the [State](/usc/42/1396b.md?p=w-7-D) certifies to the [Secretary](/usc/42/1301.md?p=a-6) that, with respect to the [State](/usc/42/1396b.md?p=w-7-D) fiscal year during which the certification is made, the [State](/usc/42/1396b.md?p=w-7-D) has a budget deficit, or with respect to the succeeding [State](/usc/42/1396b.md?p=w-7-D) fiscal year, the [State](/usc/42/1396b.md?p=w-7-D) is projected to have a budget deficit. Upon submission of such a certification to the [Secretary](/usc/42/1301.md?p=a-6), the requirement under [paragraph (1)](#gg-1) shall not apply to the [State](/usc/42/1396b.md?p=w-7-D) with respect to any remaining portion of the period described in the preceding sentence.
  - (4) **Determination of compliance—**
    - (A) **States shall apply modified adjusted gross income—** A [State](/usc/42/1396b.md?p=w-7-D)’s determination of [income](/usc/42/292s.md?p=c-4) in accordance with [subsection (e)(14)](#e-14) shall not be considered to be eligibility [standards](/usc/42/1320d.md?p=7), methodologies, or procedures that are more restrictive than the [standards](/usc/42/1320d.md?p=7), methodologies, or procedures in effect under the [State](/usc/42/1396b.md?p=w-7-D) plan or under a waiver of the plan on March 23, 2010, for purposes of determining compliance with the requirements of paragraph [(1)](#gg-1), [(2)](#gg-2), or [(3)](#gg-3).
    - (B) **States may expand eligibility or move waivered populations into coverage under the State plan—** With respect to any period applicable under paragraph [(1)](#gg-1), [(2)](#gg-2), or [(3)](#gg-3), a [State](/usc/42/1396b.md?p=w-7-D) that applies eligibility [standards](/usc/42/1320d.md?p=7), methodologies, or procedures under the [State](/usc/42/1396b.md?p=w-7-D) plan under this subchapter or under any waiver of the plan that are less restrictive than the eligibility [standards](/usc/42/1320d.md?p=7), methodologies, or procedures, applied under the [State](/usc/42/1396b.md?p=w-7-D) plan or under a waiver of the plan on March 23, 2010, or that makes individuals who, on March 23, 2010, are eligible for medical assistance under a waiver of the [State](/usc/42/1396b.md?p=w-7-D) plan, after March 23, 2010, eligible for medical assistance through a [State](/usc/42/1396b.md?p=w-7-D) plan amendment with an [income](/usc/42/292s.md?p=c-4) eligibility level that is not less than the [income](/usc/42/292s.md?p=c-4) eligibility level that applied under the waiver, or as a result of the application of [subclause (VIII)](#a-10-A-i-VIII) of subsection (a)(10)(A)(i), shall not be considered to have in effect eligibility [standards](/usc/42/1320d.md?p=7), methodologies, or procedures that are more restrictive than the [standards](/usc/42/1320d.md?p=7), methodologies, or procedures in effect under the [State](/usc/42/1396b.md?p=w-7-D) plan or under a waiver of the plan on March 23, 2010, for purposes of determining compliance with the requirements of paragraph [(1)](#gg-1), [(2)](#gg-2), or [(3)](#gg-3).
- (hh) **State option for coverage for individuals with income that exceeds 133 percent of the poverty line—**
  - (1) A [State](/usc/42/1396b.md?p=w-7-D) may elect to phase-in the extension of eligibility for medical assistance to individuals described in [subclause (XX)](#a-10-A-ii-XX) of subsection (a)(10)(A)(ii) based on the categorical group ([including](/usc/42/1301.md?p=b) [nonpregnant childless adults](/usc/42/1397kk.md?p=c-2-B)) or [income](/usc/42/292s.md?p=c-4), so long as the [State](/usc/42/1396b.md?p=w-7-D) does not extend such eligibility to individuals described in such subclause with higher [income](/usc/42/292s.md?p=c-4) before making individuals described in such subclause with lower [income](/usc/42/292s.md?p=c-4) eligible for medical assistance.
  - (2) If an individual described in [subclause (XX)](#a-10-A-ii-XX) of subsection (a)(10)(A)(ii) is the [parent](#k-3) of a [child](/usc/42/416.md?p=e) who is under 19 years of age (or such higher age as the [State](/usc/42/1396b.md?p=w-7-D) may have elected) who is eligible for medical assistance under the [State](/usc/42/1396b.md?p=w-7-D) plan or under a waiver of such plan, the individual may not be enrolled under the [State](/usc/42/1396b.md?p=w-7-D) plan unless the individual’s [child](/usc/42/416.md?p=e) is enrolled under the [State](/usc/42/1396b.md?p=w-7-D) plan or under a waiver of the plan or is enrolled in other [health insurance coverage](/usc/42/1320d–9.md?p=b-2). For purposes of the preceding sentence, the term “[parent](#k-3)” [includes](/usc/42/1301.md?p=b) an individual treated as a caretaker relative for purposes of carrying out [section 1396u–1 of this title](/usc/42/1396u–1.md).
- (ii) **State eligibility option for family planning services—**
  - (1) Individuals described in this subsection are individuals—
    - (A) whose [income](/usc/42/292s.md?p=c-4) does not exceed an [income](/usc/42/292s.md?p=c-4) eligibility level established by the [State](/usc/42/1396b.md?p=w-7-D) that does not exceed the highest [income](/usc/42/292s.md?p=c-4) eligibility level established under the [State](/usc/42/1396b.md?p=w-7-D) plan under this subchapter (or under its [State child health plan](/usc/42/1397jj.md?p=c-7) under subchapter XXI) for pregnant women; and
    - (B) who are not pregnant.
  - (2) At the option of a [State](/usc/42/1396b.md?p=w-7-D), individuals described in this subsection may include individuals who, had individuals applied on or before January 1, 2007, would have been made eligible pursuant to the [standards](/usc/42/1320d.md?p=7) and processes imposed by that [State](/usc/42/1396b.md?p=w-7-D) for benefits described in clause (XVI) of the matter following subparagraph (G) of section[^20] [subsection (a)(10)](#a-10) pursuant to a waiver granted under [section 1315 of this title](/usc/42/1315.md).
  - (3) At the option of a [State](/usc/42/1396b.md?p=w-7-D), for purposes of subsection (a)(17)(B), in determining eligibility for services under this subsection, the [State](/usc/42/1396b.md?p=w-7-D) may consider only the [income](/usc/42/292s.md?p=c-4) of the applicant or [recipient](/usc/42/2996a.md?p=6).
- (jj) **Primary care services defined—** For purposes of [subsection (a)(13)(C)](#a-13-C), the term “primary care services” means—
  - (1) evaluation and management services that are procedure codes (for services covered under subchapter XVIII) for services in the [category](/usc/42/1395w–4.md?p=j-1) designated Evaluation and Management in the Healthcare Common Procedure Coding System (established by the [Secretary](/usc/42/1301.md?p=a-6) under [section 1395w–4(c)(5) of this title](/usc/42/1395w–4.md?p=c-5) as of December 31, 2009, and as subsequently [modified](/usc/42/7501.md?p=4)); and
  - (2) services related to immunization [administration](/usc/42/1301.md?p=a-10) for vaccines and toxoids for which CPT codes 90465, 90466, 90467, 90468, 90471, 90472, 90473, or 90474 (as subsequently [modified](/usc/42/7501.md?p=4)) apply under such System.
- (kk) **Provider and supplier screening, oversight, and reporting requirements—** For purposes of [subsection (a)(77)](#a-77), the requirements of this subsection are the following:
  - (1) **Screening—**
    - (A) **In general—** The [State](/usc/42/1396b.md?p=w-7-D) complies with the process for screening providers and [suppliers](/usc/42/1395cc–4.md?p=a-2-I) under this subchapter, as established by the [Secretary](/usc/42/1301.md?p=a-6) under [section 1395cc(j)(2) of this title](/usc/42/1395cc.md?p=j-2).
    - (B) **Provider screening against Death Master File—** Beginning January 1, 2028, as part of the enrollment (or reenrollment or revalidation of enrollment) of a provider or [supplier](/usc/42/1395cc–4.md?p=a-2-I) under this subchapter, and not less frequently than quarterly during the period that such provider or [supplier](/usc/42/1395cc–4.md?p=a-2-I) is so enrolled, the [State](/usc/42/1396b.md?p=w-7-D) conducts a check of the Death Master File (as such term is defined in [section 1306c(d) of this title](/usc/42/1306c.md?p=d)) to determine whether such provider or [supplier](/usc/42/1395cc–4.md?p=a-2-I) is deceased.
  - (2) **Provisional period of enhanced oversight for new providers and suppliers—** The [State](/usc/42/1396b.md?p=w-7-D) complies with procedures to provide for a provisional period of enhanced oversight for new providers and [suppliers](/usc/42/1395cc–4.md?p=a-2-I) under this subchapter, as established by the [Secretary](/usc/42/1301.md?p=a-6) under [section 1395cc(j)(3) of this title](/usc/42/1395cc.md?p=j-3).
  - (3) **Disclosure requirements—** The [State](/usc/42/1396b.md?p=w-7-D) requires providers and [suppliers](/usc/42/1395cc–4.md?p=a-2-I) under the [State](/usc/42/1396b.md?p=w-7-D) plan or under a waiver of the plan to comply with the disclosure requirements established by the [Secretary](/usc/42/1301.md?p=a-6) under [section 1395cc(j)(5) of this title](/usc/42/1395cc.md?p=j-5).
  - (4) **Temporary moratorium on enrollment of new providers or suppliers—**
    - (A) **Temporary moratorium imposed by the Secretary—**
      - (i) **In general—** Subject to [clause (ii)](#kk-4-A-ii), the [State](/usc/42/1396b.md?p=w-7-D) complies with any temporary moratorium on the enrollment of new providers or [suppliers](/usc/42/1395cc–4.md?p=a-2-I) imposed by the [Secretary](/usc/42/1301.md?p=a-6) under [section 1395cc(j)(7) of this title](/usc/42/1395cc.md?p=j-7).
      - (ii) **Exceptions—**
        - (I) **Compliance with moratorium—** A [State](/usc/42/1396b.md?p=w-7-D) shall not be required to comply with a temporary moratorium described in [clause (i)](#kk-4-A-i) if the [State](/usc/42/1396b.md?p=w-7-D) determines that the imposition of such temporary moratorium would adversely impact beneficiaries’ access to medical assistance.
        - (II) **FFP available—** Notwithstanding [section 1396b(i)(2)(E) of this title](/usc/42/1396b.md?p=i-2-E), payment may be made to a [State](/usc/42/1396b.md?p=w-7-D) under this subchapter with respect to amounts expended for items and services described in such section if the [Secretary](/usc/42/1301.md?p=a-6), in consultation with the [State agency](/usc/42/1320a–7a.md?p=i-1) administering the [State](/usc/42/1396b.md?p=w-7-D) plan under this subchapter (or a waiver of the plan), determines that denying payment to the [State](/usc/42/1396b.md?p=w-7-D) pursuant to such section would adversely impact beneficiaries’ access to medical assistance.
      - (iii) **Limitation on charges to beneficiaries—** With respect to any amount expended for items or services furnished during calendar quarters beginning on or after October 1, 2017, the [State](/usc/42/1396b.md?p=w-7-D) prohibits, during the period of a temporary moratorium described in [clause (i)](#kk-4-A-i), a provider meeting the requirements specified in subparagraph (C)(iii) of [section 1395cc(j)(7) of this title](/usc/42/1395cc.md?p=j-7) from charging an individual or other [person](/usc/42/1301.md?p=a-3) eligible to receive medical assistance under the [State](/usc/42/1396b.md?p=w-7-D) plan under this subchapter (or a waiver of the plan) for an item or service described in [section 1396b(i)(2)(E) of this title](/usc/42/1396b.md?p=i-2-E) furnished to such an individual.
    - (B) **Moratorium on enrollment of providers and suppliers—** At the option of the [State](/usc/42/1396b.md?p=w-7-D), the [State](/usc/42/1396b.md?p=w-7-D) imposes, for purposes of entering into participation [agreements](/usc/42/1320b–8.md?p=a-3-A) with providers or [suppliers](/usc/42/1395cc–4.md?p=a-2-I) under the [State](/usc/42/1396b.md?p=w-7-D) plan or under a waiver of the plan, periods of enrollment moratoria, or numerical caps or other limits, for providers or [suppliers](/usc/42/1395cc–4.md?p=a-2-I) identified by the [Secretary](/usc/42/1301.md?p=a-6) as being at high-risk for fraud, waste, or [abuse](/usc/42/1397j.md?p=1) as necessary to combat fraud, waste, or [abuse](/usc/42/1397j.md?p=1), but only if the [State](/usc/42/1396b.md?p=w-7-D) determines that the imposition of any such period, cap, or other limits would not adversely impact beneficiaries’ access to medical assistance.
  - (5) **Compliance programs—** The [State](/usc/42/1396b.md?p=w-7-D) requires providers and [suppliers](/usc/42/1395cc–4.md?p=a-2-I) under the [State](/usc/42/1396b.md?p=w-7-D) plan or under a waiver of the plan to establish, in accordance with the requirements of [section 1395cc(j)(7)](/usc/42/1395cc.md?p=j-7)[^1] of this title, a compliance [program](/usc/42/274l–1.md?p=4) that contains the core elements established under [subparagraph (B)](/usc/42/1395cc.md?p=j-7-B) of that section 1395cc(j)(7)[^1] of this title for providers or [suppliers](/usc/42/1395cc–4.md?p=a-2-I) within a particular industry or [category](/usc/42/1395w–4.md?p=j-1).
  - (6) **Reporting of adverse provider actions—** The [State](/usc/42/1396b.md?p=w-7-D) complies with the national system for reporting criminal and civil convictions, sanctions, negative licensure actions, and other adverse provider actions to the [Secretary](/usc/42/1301.md?p=a-6), through the [Administrator](/usc/42/4005.md?p=1) of the Centers for Medicare & [Medicaid](/usc/42/1396b.md?p=w-3-E-iii-III-aa) Services, in accordance with regulations of the [Secretary](/usc/42/1301.md?p=a-6).
  - (7) **Enrollment and NPI of ordering or referring providers—** The [State](/usc/42/1396b.md?p=w-7-D) requires—
    - (A) all ordering or referring [physicians](/usc/42/1396d.md?p=e) or other professionals to be enrolled under the [State](/usc/42/1396b.md?p=w-7-D) plan or under a waiver of the plan as a participating provider; and
    - (B) the national provider identifier of any ordering or referring [physician](/usc/42/1301.md?p=a-7) or other professional to be specified on any [claim](/usc/42/1320a–7a.md?p=i-2) for payment that is based on an order or referral of the [physician](/usc/42/1301.md?p=a-7) or other professional.
  - (8) **Provider terminations—**
    - (A) **In general—** Beginning on July 1, 2018, in the case of a notification under [subsection (a)(41)](#a-41) with respect to a termination for a reason specified in [section 455.101 of title 42, Code of Federal Regulations](/cfr/42/455.101.md) (as in effect on November 1, 2015) or for any other reason specified by the [Secretary](/usc/42/1301.md?p=a-6), of the participation of a [provider of services](/usc/42/1395n.md?p=a-2) or any other [person](/usc/42/1301.md?p=a-3) under the [State](/usc/42/1396b.md?p=w-7-D) plan (or under a waiver of the plan), the [State](/usc/42/1396b.md?p=w-7-D), not later than 30 days after the [effective date](#kk-8-B) of such termination, submits to the [Secretary](/usc/42/1301.md?p=a-6) with respect to any such provider or [person](/usc/42/1301.md?p=a-3), as appropriate—
      - (i) the name of such provider or [person](/usc/42/1301.md?p=a-3);
      - (ii) the provider type of such provider or [person](/usc/42/1301.md?p=a-3);
      - (iii) the specialty of such provider’s or [person](/usc/42/1301.md?p=a-3)’s practice;
      - (iv) the date of birth, [Social](/usc/42/1397j.md?p=20) Security number, national provider identifier (if applicable), Federal taxpayer identification number, and the [State](/usc/42/1396b.md?p=w-7-D) license or certification number of such provider or [person](/usc/42/1301.md?p=a-3) (if applicable);
      - (v) the reason for the termination;
      - (vi) a copy of the notice of termination sent to the provider or [person](/usc/42/1301.md?p=a-3);
      - (vii) the date on which such termination is effective, as specified in the notice; and
      - (viii) any other information required by the [Secretary](/usc/42/1301.md?p=a-6).
    - (B) **Effective date defined—** For purposes of this paragraph, the term “effective date” means, with respect to a termination described in [subparagraph (A)](#kk-8-A), the later of—
      - (i) the date on which such termination is effective, as specified in the notice of such termination; or
      - (ii) the date on which all appeal rights applicable to such termination have been exhausted or the timeline for any such appeal has expired.
  - (9) **Other State oversight—** Nothing in this subsection shall be interpreted to preclude or limit the ability of a [State](/usc/42/1396b.md?p=w-7-D) to engage in provider and [supplier](/usc/42/1395cc–4.md?p=a-2-I) screening or enhanced provider and [supplier](/usc/42/1395cc–4.md?p=a-2-I) oversight activities beyond those required by the [Secretary](/usc/42/1301.md?p=a-6).
- (ll) **Termination notification database—** In the case of a [provider of services](/usc/42/1395n.md?p=a-2) or any other [person](/usc/42/1301.md?p=a-3) whose participation under this subchapter or subchapter XXI is terminated (as described in [subsection (kk)(8)](#kk-8)), the [Secretary](/usc/42/1301.md?p=a-6) shall, not later than 30 days after the date on which the [Secretary](/usc/42/1301.md?p=a-6) is notified of such termination under [subsection (a)(41)](#a-41) (as applicable), review such termination and, if the [Secretary](/usc/42/1301.md?p=a-6) determines appropriate, include such termination in any database or similar system developed pursuant to [section 6401(b)(2)](/usc/42/6401.md) of the Patient Protection and Affordable Care Act ([42 U.S.C. 1395cc](/usc/42/1395cc.md) note; Public Law 111–148).
- (mm) **Directory provider described—**
  - (1) **In general—** A provider described in this subsection, at a minimum, [includes](/usc/42/1301.md?p=b) [physicians](/usc/42/1396d.md?p=e), [hospitals](/usc/42/1395dd.md?p=e-5), pharmacies, providers of mental health services, providers of [substance use disorder services](/usc/42/290cc–34.md?p=4), providers of long term services and supports as appropriate, and such other providers as required by the [Secretary](/usc/42/1301.md?p=a-6), and—
    - (A) in the case of a provider or a provider type for which the [State agency](/usc/42/1320a–7a.md?p=i-1), as a condition of receiving payment for items and services furnished by the provider to individuals eligible to receive medical assistance under the [State](/usc/42/1396b.md?p=w-7-D) plan (or a waiver of the plan), requires the enrollment of the provider with the [State agency](/usc/42/1320a–7a.md?p=i-1), [includes](/usc/42/1301.md?p=b) a provider that—
      - (i) is enrolled with the [agency](/usc/42/1397n–12.md?p=1) as of the date on which the directory is published or updated (as applicable) under [subsection (a)(83)](#a-83); and
      - (ii) received payment under the [State](/usc/42/1396b.md?p=w-7-D) plan in the 12-month period preceding such date; and
    - (B) in the case of a provider or a provider type for which the [State agency](/usc/42/1320a–7a.md?p=i-1) does not require such enrollment, [includes](/usc/42/1301.md?p=b) a provider that received payment under the [State](/usc/42/1396b.md?p=w-7-D) plan (or a waiver of the plan) in the 12-month period preceding the date on which the directory is published or updated (as applicable) under [subsection (a)(83)](#a-83).
  - (2) **State option to include other participating providers—** At [State](/usc/42/1396b.md?p=w-7-D) option, a provider described in this subsection may include any provider who furnishes services and is participating under the [State](/usc/42/1396b.md?p=w-7-D) plan under this subchapter or under a waiver of such plan.
- (nn) **Juvenile; eligible juvenile; public institution—** For purposes of [subsection (a)(84)](#a-84) and this subsection:
  - (1) **Juvenile—** The term “juvenile” means an individual who is—
    - (A) under 21 years of age; or
    - (B) described in [subsection (a)(10)(A)(i)(IX)](#a-10-A-i-IX).
  - (2) **Eligible juvenile—** The term “eligible juvenile” means a juvenile who is an [inmate of a public institution](#nn-3) and who—
    - (A) was determined eligible for medical assistance under the [State](/usc/42/1396b.md?p=w-7-D) plan (or waiver of such plan) immediately before becoming an inmate of such a public institution; or
    - (B) is determined eligible for such medical assistance while an [inmate of a public institution](#nn-3).
  - (3) **Inmate of a public institution—** The term “inmate of a public institution” has the meaning given such term for purposes of applying the subdivision (A) following the last numbered paragraph of [section 1396d(a) of this title](/usc/42/1396d.md?p=a), taking into account the exception in such subdivision for a patient of a medical institution.
- (oo) **Drug review and utilization requirements—**
  - (1) **In general—** For purposes of [subsection (a)(85)](#a-85), the [drug](/usc/42/282.md?p=j-1-A-vii) review and utilization requirements under this subsection are, subject to [paragraph (3)](#oo-3) and beginning October 1, 2019, the following:
    - (A) **Claims review limitations—**
      - (i) **In general—** The [State](/usc/42/1396b.md?p=w-7-D) has in place—
        - (I) safety edits (as specified by the [State](/usc/42/1396b.md?p=w-7-D)) for subsequent fills for opioids and a [claims](/usc/42/1320a–7a.md?p=i-2) review automated process (as designed and implemented by the [State](/usc/42/1396b.md?p=w-7-D)) that indicates when an individual enrolled under the [State](/usc/42/1396b.md?p=w-7-D) plan (or under a waiver of the [State](/usc/42/1396b.md?p=w-7-D) plan) is prescribed a subsequent fill of opioids in excess of any limitation that may be identified by the [State](/usc/42/1396b.md?p=w-7-D);
        - (II) safety edits (as specified by the [State](/usc/42/1396b.md?p=w-7-D)) on the maximum daily morphine equivalent that can be prescribed to an individual enrolled under the [State](/usc/42/1396b.md?p=w-7-D) plan (or under a waiver of the [State](/usc/42/1396b.md?p=w-7-D) plan) for [treatment](/usc/42/11851.md?p=11) of chronic pain and a [claims](/usc/42/1320a–7a.md?p=i-2) review automated process (as designed and implemented by the [State](/usc/42/1396b.md?p=w-7-D)) that indicates when an individual enrolled under the plan (or waiver) is prescribed the morphine equivalent for such [treatment](/usc/42/11851.md?p=11) in excess of any limitation that may be identified by the [State](/usc/42/1396b.md?p=w-7-D); and
        - (III) a [claims](/usc/42/1320a–7a.md?p=i-2) review automated process (as designed and implemented by the [State](/usc/42/1396b.md?p=w-7-D)) that monitors when an individual enrolled under the [State](/usc/42/1396b.md?p=w-7-D) plan (or under a waiver of the [State](/usc/42/1396b.md?p=w-7-D) plan) is concurrently prescribed opioids and—
          - (aa) benzodiazepines; or
          - (bb) antipsychotics.
      - (ii) **Managed care entities—** The [State](/usc/42/1396b.md?p=w-7-D) requires each [managed care entity](/usc/42/1396b.md?p=m-9-D-i) (as defined in [section 1396u–2(a)(1)(B) of this title](/usc/42/1396u–2.md?p=a-1-B)) with respect to which the [State](/usc/42/1396b.md?p=w-7-D) has a contract under [section 1396b(m) of this title](/usc/42/1396b.md?p=m) or under [section 1396d(t)(3) of this title](/usc/42/1396d.md?p=t-3) to have in place, subject to [paragraph (3)](#oo-3), with respect to individuals who are eligible for medical assistance under the [State](/usc/42/1396b.md?p=w-7-D) plan (or under a waiver of the [State](/usc/42/1396b.md?p=w-7-D) plan) and who are enrolled with the entity, the limitations described in subclauses [(I)](#oo-1-A-i-I) and [(II)](#oo-1-A-i-II) of clause (i) and a [claims](/usc/42/1320a–7a.md?p=i-2) review automated process described in [subclause (III)](#oo-1-A-i-III) of such clause.
      - (iii) **Rules of construction—** Nothing in this subparagraph may be construed as prohibiting a [State](/usc/42/1396b.md?p=w-7-D) or [managed care entity](/usc/42/1396b.md?p=m-9-D-i) from designing and implementing a [claims](/usc/42/1320a–7a.md?p=i-2) review automated process under this subparagraph that provides for prospective or retrospective reviews of [claims](/usc/42/1320a–7a.md?p=i-2). Nothing in this subparagraph shall be understood as prohibiting the exercise of clinical judgment from a provider enrolled as a participating provider in a [State](/usc/42/1396b.md?p=w-7-D) plan (or waiver of the [State](/usc/42/1396b.md?p=w-7-D) plan) or contracting with a [managed care entity](/usc/42/1396b.md?p=m-9-D-i) regarding the best items and services for an individual enrolled under such [State](/usc/42/1396b.md?p=w-7-D) plan (or waiver).
    - (B) **Program to monitor antipsychotic medications by children—** The [State](/usc/42/1396b.md?p=w-7-D) has in place a [program](/usc/42/274l–1.md?p=4) (as designed and implemented by the [State](/usc/42/1396b.md?p=w-7-D)) to monitor and manage the appropriate use of antipsychotic medications by [children](/usc/42/256e.md?p=g-2) enrolled under the [State](/usc/42/1396b.md?p=w-7-D) plan (or under a waiver of the [State](/usc/42/1396b.md?p=w-7-D) plan) and submits annually to the [Secretary](/usc/42/1301.md?p=a-6) such information as the [Secretary](/usc/42/1301.md?p=a-6) may require on activities carried out under such [program](/usc/42/274l–1.md?p=4) for individuals not more than the age of 18 years generally and [children](/usc/42/256e.md?p=g-2) in foster care specifically.
    - (C) **Fraud and abuse identification—** The [State](/usc/42/1396b.md?p=w-7-D) has in place a process (as designed and implemented by the [State](/usc/42/1396b.md?p=w-7-D)) that identifies potential fraud or [abuse](/usc/42/1397j.md?p=1) of [controlled substances](/usc/42/11851.md?p=2) by individuals enrolled under the [State](/usc/42/1396b.md?p=w-7-D) plan (or under a waiver of the [State](/usc/42/1396b.md?p=w-7-D) plan), [health care providers](/usc/42/300jj.md?p=3) prescribing [drugs](/usc/42/282.md?p=j-1-A-vii) to individuals so enrolled, and pharmacies dispensing [drugs](/usc/42/282.md?p=j-1-A-vii) to individuals so enrolled.
    - (D) **Reports—** The [State](/usc/42/1396b.md?p=w-7-D) shall include in the annual report submitted to the [Secretary](/usc/42/1301.md?p=a-6) under [section 1396r–8(g)(3)(D) of this title](/usc/42/1396r–8.md?p=g-3-D) information on the limitations, requirement, [program](/usc/42/274l–1.md?p=4), and processes applied by the [State](/usc/42/1396b.md?p=w-7-D) under [subparagraphs (A) through (C)](#oo-1-A..oo-1-C) in accordance with such manner and time as specified by the [Secretary](/usc/42/1301.md?p=a-6).
    - (E) **Clarification—** Nothing shall prevent a [State](/usc/42/1396b.md?p=w-7-D) from satisfying the requirement—
      - (i) described in [subparagraph (A)](#oo-1-A) by having safety edits or a [claims](/usc/42/1320a–7a.md?p=i-2) review automated process described in such subparagraph that was in place before October 1, 2019;
      - (ii) described in [subparagraph (B)](#oo-1-B) by having a [program](/usc/42/274l–1.md?p=4) described in such subparagraph that was in place before such date; or
      - (iii) described in [subparagraph (C)](#oo-1-C) by having a process described in such subparagraph that was in place before such date.
  - (2) **Annual report by Secretary—** For each fiscal year beginning with fiscal year 2020, the [Secretary](/usc/42/1301.md?p=a-6) shall submit to Congress a report on the most recent information submitted by [States](/usc/42/1396b.md?p=w-7-D) under [paragraph (1)(D)](#oo-1-D).
  - (3) **Exceptions—**
    - (A) **Certain individuals exempted—** The [drug](/usc/42/282.md?p=j-1-A-vii) review and utilization requirements under this subsection shall not apply with respect to an individual who—
      - (i) is receiving—
        - (I) hospice or palliative care; or
        - (II) [treatment](/usc/42/11851.md?p=11) for cancer;
      - (ii) is a resident of a [long-term care facility](/usc/42/1397j.md?p=15), of a [facility](/usc/42/11049.md?p=4) described in [section 1396d(d) of this title](/usc/42/1396d.md?p=d), or of another [facility](/usc/42/11049.md?p=4) for which frequently abused [drugs](/usc/42/282.md?p=j-1-A-vii) are dispensed for residents through a contract with a [single](/usc/42/2304.md?p=m) pharmacy; or
      - (iii) the [State](/usc/42/1396b.md?p=w-7-D) elects to treat as exempted from such requirements.
    - (B) **Exception relating to ensuring access—** In order to ensure reasonable access to health care, the [Secretary](/usc/42/1301.md?p=a-6) shall waive the [drug](/usc/42/282.md?p=j-1-A-vii) review and utilization requirements under this subsection, with respect to a [State](/usc/42/1396b.md?p=w-7-D), in the case of [natural disasters](/usc/42/18711.md?p=a-3) and similar situations, and in the case of the provision of emergency services (as defined for purposes of [section 1395w–104(c)(5)(D)(ii)(II) of this title](/usc/42/1395w–104.md?p=c-5-D-ii-II)).
- (pp) **Residential pediatric recovery center defined—**
  - (1) **In general—** For purposes of [section 1396a(a)(86) of this title](#a-86), the term “residential pediatric recovery center” means a center or [facility](/usc/42/11049.md?p=4) that furnishes items and services for which medical assistance is available under the [State](/usc/42/1396b.md?p=w-7-D) plan to infants with the diagnosis of neonatal abstinence syndrome without any other significant medical risk factors.
  - (2) **Counseling and services—** A [residential pediatric recovery center](#pp-1) may offer counseling and other services to mothers (and other appropriate [family members](/usc/42/1320d–9.md?p=b-1) and caretakers) of infants receiving [treatment](/usc/42/11851.md?p=11) at such centers if such services are otherwise covered under the [State](/usc/42/1396b.md?p=w-7-D) plan under this subchapter or under a waiver of such plan. Such other services may include the following:
    - (A) Counseling or referrals for services.
    - (B) Activities to encourage [caregiver](/usc/42/1397j.md?p=3)-infant bonding.
    - (C) [Training](/usc/42/285e–2.md?p=b-2) on caring for such infants.
- (qq) **Application of certain data reporting and program integrity requirements to Northern Mariana Islands, American Samoa, and Guam—**
  - (1) **In general—** Not later than October 1, 2021, the Northern Mariana Islands, American Samoa, and Guam shall—
    - (A) demonstrate progress in implementing methods, satisfactory to the [Secretary](/usc/42/1301.md?p=a-6), for the collection and reporting of reliable data to the Transformed [Medicaid](/usc/42/1396b.md?p=w-3-E-iii-III-aa) Statistical Information System (T–MSIS) (or a successor system); and
    - (B) demonstrate progress in establishing a [State](/usc/42/1396b.md?p=w-7-D) [medicaid](/usc/42/1396b.md?p=w-3-E-iii-III-aa) fraud control [unit](/usc/42/1395w–114b.md?p=g-2) described in [section 1396b(q) of this title](/usc/42/1396b.md?p=q).
  - (2) **Determination of progress—** For purposes of [paragraph (1)](#qq-1), the [Secretary](/usc/42/1301.md?p=a-6) shall deem that a territory described in such paragraph has demonstrated satisfactory progress in implementing methods for the collection and reporting of reliable data or establishing a [State](/usc/42/1396b.md?p=w-7-D) [medicaid](/usc/42/1396b.md?p=w-3-E-iii-III-aa) fraud control [unit](/usc/42/1395w–114b.md?p=g-2) if the territory has made a good faith effort to implement such methods or establish such a [unit](/usc/42/1395w–114b.md?p=g-2), given the circumstances of the territory.
- (rr) **Program integrity requirements for Puerto Rico—**
  - (1) **System for tracking Federal Medicaid funding provided to Puerto Rico—**
    - (A) **In general—** Puerto Rico shall establish and maintain a system, which may include the use of a quarterly Form CMS–64, for tracking any amounts paid by the Federal Government to Puerto Rico with respect to the [State](/usc/42/1396b.md?p=w-7-D) plan of Puerto Rico (or a waiver of such plan). Under such system, Puerto Rico shall ensure that information is available, with respect to each quarter in a fiscal year (beginning with the first quarter beginning on or after the date that is 1 year after December 20, 2019), on the following:
      - (i) In the case of a quarter other than the first quarter of such fiscal year—
        - (I) the total amount expended by Puerto Rico during any previous quarter of such fiscal year under the [State](/usc/42/1396b.md?p=w-7-D) plan of Puerto Rico (or a waiver of such plan); and
        - (II) a description of how such amount was so expended.
      - (ii) The total amount that Puerto Rico expects to expend during the quarter under the [State](/usc/42/1396b.md?p=w-7-D) plan of Puerto Rico (or a waiver of such plan), and a description of how Puerto Rico expects to expend such amount.
    - (B) **Report to CMS—** For each quarter with respect to which Puerto Rico is required under [subparagraph (A)](#rr-1-A) to ensure that information described in such subparagraph is available, Puerto Rico shall submit to the [Administrator](/usc/42/4005.md?p=1) of the Centers for Medicare & [Medicaid](/usc/42/1396b.md?p=w-3-E-iii-III-aa) Services a report on such information for such quarter, which may include the submission of a quarterly Form CMS–37.
  - (2) **Submission of documentation on contracts upon request—** Puerto Rico shall, upon request, submit to the [Administrator](/usc/42/4005.md?p=1) of the Centers for Medicare & [Medicaid](/usc/42/1396b.md?p=w-3-E-iii-III-aa) Services all documentation requested with respect to contracts awarded under the [State](/usc/42/1396b.md?p=w-7-D) plan of Puerto Rico (or a waiver of such plan).
  - (3) **Reporting on Medicaid and CHIP Scorecard measures—** Beginning 12 months after December 20, 2019, Puerto Rico shall begin to report to the [Administrator](/usc/42/4005.md?p=1) of the Centers for Medicare & [Medicaid](/usc/42/1396b.md?p=w-3-E-iii-III-aa) Services on selected measures included in the [Medicaid](/usc/42/1396b.md?p=w-3-E-iii-III-aa) and CHIP Scorecard developed by the Centers for Medicare & [Medicaid](/usc/42/1396b.md?p=w-3-E-iii-III-aa) Services.
- (ss) **Uninsured individual defined—** For purposes of this section, the term “uninsured individual” means, notwithstanding any other provision of this subchapter, any individual who is—
  - (1) not described in [subsection (a)(10)(A)(i)](#a-10-A-i) (excluding [subclause (VIII)](#a-10-A-i-VIII) of such subsection if the individual is a resident of a [State](/usc/42/1396b.md?p=w-7-D) which does not furnish medical assistance to individuals described in such subclause); and
  - (2) not enrolled in a Federal health care [program](/usc/42/274l–1.md?p=4) (as defined in [section 1320a–7b(f) of this title](/usc/42/1320a–7b.md?p=f)), a [group health plan](/usc/42/1320d–9.md?p=b-2), group or individual [health insurance coverage](/usc/42/1320d–9.md?p=b-2) offered by a [health insurance issuer](/usc/42/18021.md?p=b-2) (as such terms are defined in [section 300gg–91 of this title](/usc/42/300gg–91.md)), or a [health plan](/usc/42/300jj.md?p=6) offered under [chapter 89](/usc/5/chptIII-sptG-ch89.md) of title 5, except that individuals who are eligible for medical assistance under [subsection (a)(10)(A)(ii)(XII)](#a-10-A-ii-XII), [subsection (a)(10)(A)(ii)(XVIII)](#a-10-A-ii-XVIII), [subsection (a)(10)(A)(ii)(XXI)](#a-10-A-ii-XXI), or [subsection (a)(10)(C)](#a-10-C) (but only to the extent such an individual is considered to not have minimum essential coverage under section 5000A(f)(1) of the Internal Revenue Code of 1986), or who are described in [subsection (l)(1)(A)](#l-1-A) and are eligible for medical assistance only because of subsection [(a)(10)(A)(i)(IV)](#a-10-A-i-IV) or [(a)(10)(A)(ii)(IX)](#a-10-A-ii-IX) and whose eligibility for such assistance is limited by the [State](/usc/42/1396b.md?p=w-7-D) under clause (VII) in the matter following [subsection (a)(10)(G)](#a-10-G), shall not be treated as enrolled in a Federal health care [program](/usc/42/274l–1.md?p=4) for purposes of this paragraph.
- (tt) **Requirements relating to transition from Families First Coronavirus Response Act FMAP increase requirements; enforcement and corrective action—**
  - (1) **Reporting requirements—** For each month occurring during the period that begins on April 1, 2023, and ends on June 30, 2024, each [State](/usc/42/1396b.md?p=w-7-D) shall submit to the [Secretary](/usc/42/1301.md?p=a-6), on a timely basis, a report, that the [Secretary](/usc/42/1301.md?p=a-6) shall make publicly available, on the activities of the [State](/usc/42/1396b.md?p=w-7-D) relating to eligibility redeterminations conducted during such period, and which include, with respect to the month for which the report is submitted, the following information:
    - (A) The number of eligibility renewals initiated, beneficiaries renewed on a total and ex parte basis, and individuals whose coverage for medical assistance, [child health assistance](/usc/42/1397ll.md?p=d-1), or [pregnancy-related assistance](/usc/42/1397ll.md?p=d-1) was terminated.
    - (B) The number of individuals whose coverage for medical assistance, [child health assistance](/usc/42/1397ll.md?p=d-1), or [pregnancy-related assistance](/usc/42/1397ll.md?p=d-1) was so terminated for procedural reasons.
    - (C) Where applicable, the number of individuals who were enrolled in a [State child health plan](/usc/42/1397jj.md?p=c-7) or waiver in the form described in paragraph (1) of [section 1397aa(a) of this title](/usc/42/1397aa.md?p=a).
    - (D) Unless the [Administrator](/usc/42/4005.md?p=1) of the Centers for Medicare & [Medicaid](/usc/42/1396b.md?p=w-3-E-iii-III-aa) Services reports such information on behalf of the [State](/usc/42/1396b.md?p=w-7-D):
      - (i) In a [State](/usc/42/1396b.md?p=w-7-D) with a Federal or [State](/usc/42/1396b.md?p=w-7-D) American Health Benefit [Exchange](/usc/42/300gg–91.md?p=d-21) established under title I of the Patient Protection and Affordable Care Act in which the systems used to determine eligibility for assistance under this subchapter or subchapter XXI are not integrated with the systems used to determine eligibility for coverage under a [qualified health plan](/usc/42/300gg–91.md?p=d-20) with advance payment under section 1412(a) of the Patient Protection and Affordable Care Act [[42 U.S.C. 18082(a)](/usc/42/18082.md?p=a)] of any premium tax credit allowed under section 36B of the Internal Revenue Code of 1986—
        - (I) the number of individuals whose accounts were received via secure electronic transfer by the Federal or [State](/usc/42/1396b.md?p=w-7-D) American Health Benefit [Exchange](/usc/42/300gg–91.md?p=d-21), or a basic health [program](/usc/42/274l–1.md?p=4) established under section 1331 of the Patient Protection and Affordable Care Act [[42 U.S.C. 18051](/usc/42/18051.md)];
        - (II) the number of individuals identified in [subclause (I)](#tt-1-D-i-I) who were determined eligible for a [qualified health plan](/usc/42/300gg–91.md?p=d-20), as defined in [section 1301(a)(1)](/usc/42/1301.md?p=a-1) of the Patient Protection and Affordable Care Act [[42 U.S.C. 18021(a)(1)](/usc/42/18021.md?p=a-1)], or (if applicable) the basic health [program](/usc/42/274l–1.md?p=4) established under section 1331 of such Act [[42 U.S.C. 18051](/usc/42/18051.md)]; and
        - (III) the number of individuals identified in [subclause (II)](#tt-1-D-i-II) who made a [qualified health plan](/usc/42/300gg–91.md?p=d-20) selection or were enrolled in a basic health [program](/usc/42/274l–1.md?p=4) plan (if applicable).
      - (ii) In a [State](/usc/42/1396b.md?p=w-7-D) with a [State](/usc/42/1396b.md?p=w-7-D) American Health Benefit [Exchange](/usc/42/300gg–91.md?p=d-21) established under title I of the Patient Protection and Affordable Care Act in which the systems used to determine eligibility for assistance under this subchapter or subchapter XXI are integrated with the systems used to determine eligibility for coverage under a [qualified health plan](/usc/42/300gg–91.md?p=d-20) with advance payment under section 1412(a) of the Patient Protection and Affordable Care Act [[42 U.S.C. 18082(a)](/usc/42/18082.md?p=a)] of any premium tax credit allowed under section 36B of the Internal Revenue Code of 1986—
        - (I) the number of individuals who were determined eligible for a [qualified health plan](/usc/42/300gg–91.md?p=d-20), as defined in [section 1301(a)(1)](/usc/42/1301.md?p=a-1) of the Patient Protection and Affordable Care Act [[42 U.S.C. 18021(a)(1)](/usc/42/18021.md?p=a-1)], or (if applicable) the basic health [program](/usc/42/274l–1.md?p=4) established under section 1331 of such Act [[42 U.S.C. 18051](/usc/42/18051.md)]; and
        - (II) the number of individuals identified in [subclause (I)](#tt-1-D-ii-I) who made a [qualified health plan](/usc/42/300gg–91.md?p=d-20) selection or were enrolled in a basic health [program](/usc/42/274l–1.md?p=4) plan (if applicable).
    - (E) The total call center volume, average wait times, and average abandonment rate (as determined by the [Secretary](/usc/42/1301.md?p=a-6)) for each call center of the [State agency](/usc/42/1320a–7a.md?p=i-1) responsible for administering the [State](/usc/42/1396b.md?p=w-7-D) plan under this subchapter (or a waiver of such plan) during such month.
    - (F) Such other information related to eligibility redeterminations and renewals during the period described in [paragraph (1)](#tt-1), as identified by the [Secretary](/usc/42/1301.md?p=a-6).
  - (2) **Enforcement and corrective action—**
    - (A) **In general—** For each fiscal quarter that occurs during the period that begins on July 1, 2023, and ends on June 30, 2024, if a [State](/usc/42/1396b.md?p=w-7-D) does not satisfy the requirements of [paragraph (1)](#tt-1), the Federal medical assistance percentage determined for the [State](/usc/42/1396b.md?p=w-7-D) for the quarter under [section 1396d(b) of this title](/usc/42/1396d.md?p=b) shall be reduced by the number of percentage points (not to exceed 1 percentage point) equal to the product of 0.25 percentage points and the number of fiscal quarters during such period for which the [State](/usc/42/1396b.md?p=w-7-D) has failed to satisfy such requirements.
    - (B) **Corrective action plan; additional authority—**
      - (i) **In general—** The [Secretary](/usc/42/1301.md?p=a-6) may assess a [State](/usc/42/1396b.md?p=w-7-D)’s compliance with all Federal requirements applicable to eligibility redeterminations and the reporting requirements described in [paragraph (1)](#tt-1), and, if the [Secretary](/usc/42/1301.md?p=a-6) determines that a [State](/usc/42/1396b.md?p=w-7-D) did not comply with any such requirements during the period that begins on April 1, 2023, and ends on June 30, 2024, the [Secretary](/usc/42/1301.md?p=a-6) may require the [State](/usc/42/1396b.md?p=w-7-D) to submit and implement a corrective action plan in accordance with [clause (ii)](#tt-2-B-ii).
      - (ii) **Corrective action plan—** A [State](/usc/42/1396b.md?p=w-7-D) that receives a written notice from the [Secretary](/usc/42/1301.md?p=a-6) that the [Secretary](/usc/42/1301.md?p=a-6) has determined that the [State](/usc/42/1396b.md?p=w-7-D) is not in compliance with a requirement described in [clause (i)](#tt-2-B-i) shall—
        - (I) not later than 14 days after receiving such notice, submit a corrective action plan to the [Secretary](/usc/42/1301.md?p=a-6);
        - (II) not later than 21 days after the date on which such corrective action plan is submitted to the [Secretary](/usc/42/1301.md?p=a-6), receive approval for the plan from the [Secretary](/usc/42/1301.md?p=a-6); and
        - (III) begin implementation of such corrective action plan not later than 14 days after such approval.
      - (iii) **Effect of failure to submit or implement a corrective action plan—** If a [State](/usc/42/1396b.md?p=w-7-D) fails to submit or implement an approved corrective action plan in accordance with [clause (ii)](#tt-2-B-ii), the [Secretary](/usc/42/1301.md?p=a-6) may, in addition to any reduction applied under [subparagraph (A)](#tt-2-A) to the Federal medical assistance percentage determined for the [State](/usc/42/1396b.md?p=w-7-D) and any other remedy available to the [Secretary](/usc/42/1301.md?p=a-6) for the purpose of carrying out this subchapter, require the [State](/usc/42/1396b.md?p=w-7-D) to suspend making all or some terminations of eligibility for medical assistance from the [State](/usc/42/1396b.md?p=w-7-D) plan under this subchapter ([including](/usc/42/1301.md?p=b) any waiver of such plan) that are for procedural reasons until the [State](/usc/42/1396b.md?p=w-7-D) takes appropriate corrective action, as determined by the [Secretary](/usc/42/1301.md?p=a-6), and may impose a civil money penalty of not more than $100,000 for each day a [State](/usc/42/1396b.md?p=w-7-D) is not in compliance.
- (uu) **Prevention of enrollment under multiple State plans—**
  - (1) **In general—** Not later than October 1, 2029, the [Secretary](/usc/42/1301.md?p=a-6) shall establish a system to be utilized by the [Secretary](/usc/42/1301.md?p=a-6) and [States](/usc/42/1396b.md?p=w-7-D) to prevent an individual from being simultaneously enrolled under the [State](/usc/42/1396b.md?p=w-7-D) plans (or waivers of such plans) of multiple [States](/usc/42/1396b.md?p=w-7-D). Such system shall—
    - (A) provide for the receipt of information submitted by a [State](/usc/42/1396b.md?p=w-7-D) under [subsection (a)(88)(B)(i)](#a-88-B-i); and
    - (B) not less than once each month, transmit information to a [State](/usc/42/1396b.md?p=w-7-D) (or allow the [Secretary](/usc/42/1301.md?p=a-6) to transmit information to a [State](/usc/42/1396b.md?p=w-7-D)) regarding whether an individual enrolled or seeking to enroll under the [State](/usc/42/1396b.md?p=w-7-D) plan of such [State](/usc/42/1396b.md?p=w-7-D) (or waiver of such plan) is enrolled under the [State](/usc/42/1396b.md?p=w-7-D) plan (or waiver of such plan) of another [State](/usc/42/1396b.md?p=w-7-D).
  - (2) **Standards—** The [Secretary](/usc/42/1301.md?p=a-6) shall establish such [standards](/usc/42/1320d.md?p=7) as determined necessary by the [Secretary](/usc/42/1301.md?p=a-6) to limit and protect information submitted under such system and ensure the privacy of such information, consistent with [subsection (a)(7)](#a-7).
  - (3) **Implementation funding—** There are appropriated to the [Administrator](/usc/42/4005.md?p=1) of the Centers for Medicare & [Medicaid](/usc/42/1396b.md?p=w-3-E-iii-III-aa) Services, out of amounts in the Treasury not otherwise appropriated, in addition to amounts otherwise available—
    - (A) for fiscal year 2026, $10,000,000 for purposes of establishing the system and [standards](/usc/42/1320d.md?p=7) required under this subsection, to remain available until expended; and
    - (B) for fiscal year 2029, $20,000,000 for purposes of maintaining such system, to remain available until expended.
- (vv) **Process to obtain enrollee address information—**
  - (1) **In general—** For purposes of [subsection (a)(88)(A)](#a-88-A), a process to regularly obtain address information for individuals enrolled under a [State](/usc/42/1396b.md?p=w-7-D) plan (or a waiver of such plan) shall obtain address information from reliable data sources described in [paragraph (2)](#vv-2) and take such actions as the [Secretary](/usc/42/1301.md?p=a-6) shall specify with respect to any changes to such address based on such information.
  - (2) **Reliable data sources described—** For purposes of [paragraph (1)](#vv-1), the reliable data sources described in this paragraph are the following:
    - (A) Mail returned to the [State](/usc/42/1396b.md?p=w-7-D) by the [United States](/usc/42/1301.md?p=a-2) Postal Service with a forwarding address.
    - (B) The National Change of Address Database maintained by the [United States](/usc/42/1301.md?p=a-2) Postal Service.
    - (C) A [managed care entity](/usc/42/1396b.md?p=m-9-D-i) (as defined in [section 1396u–2(a)(1)(B) of this title](/usc/42/1396u–2.md?p=a-1-B)) or prepaid inpatient [health plan](/usc/42/300jj.md?p=6) or prepaid ambulatory [health plan](/usc/42/300jj.md?p=6) (as such terms are defined in [section 1396b(m)(9)(D) of this title](/usc/42/1396b.md?p=m-9-D)) that has a contract under the [State](/usc/42/1396b.md?p=w-7-D) plan if the address information is provided to such entity or plan directly from, or verified by such entity or plan directly with, such individual.
    - (D) Other data sources as identified by the [State](/usc/42/1396b.md?p=w-7-D) and approved by the [Secretary](/usc/42/1301.md?p=a-6).
- (ww) **Verification of certain eligibility criteria—**
  - (1) **In general—** For purposes of [subsection (a)(89)](#a-89), the eligibility verification requirements, beginning January 1, 2027, are as follows:
    - (A) **Quarterly screening to verify enrollee status—** The [State](/usc/42/1396b.md?p=w-7-D) shall, not less frequently than quarterly, review the Death Master File (as such term is defined in [section 1306c(d) of this title](/usc/42/1306c.md?p=d)) or a successor system that provides such information needed to determine whether any individuals enrolled for medical assistance under the [State](/usc/42/1396b.md?p=w-7-D) plan (or waiver of such plan) are deceased.
    - (B) **Disenrollment under State plan—** If the [State](/usc/42/1396b.md?p=w-7-D) determines, based on information obtained from the Death Master File, that an individual enrolled for medical assistance under the [State](/usc/42/1396b.md?p=w-7-D) plan (or waiver of such plan) is deceased, the [State](/usc/42/1396b.md?p=w-7-D) shall—
      - (i) treat such information as factual information confirming the death of a beneficiary;
      - (ii) disenroll such individual from the [State](/usc/42/1396b.md?p=w-7-D) plan (or waiver of such plan) in accordance with [subsection (a)(3)](#a-3); and
      - (iii) discontinue any payments for medical assistance under this subchapter made on behalf of such individual (other than payments for any items or services furnished to such individual prior to the death of such individual).
    - (C) **Reinstatement of coverage in the event of error—** If a [State](/usc/42/1396b.md?p=w-7-D) determines that an individual was misidentified as deceased based on information obtained from the Death Master File and was erroneously disenrolled from medical assistance under the [State](/usc/42/1396b.md?p=w-7-D) plan (or waiver of such plan) based on such misidentification, the [State](/usc/42/1396b.md?p=w-7-D) shall immediately re-enroll such individual under the [State](/usc/42/1396b.md?p=w-7-D) plan (or waiver of such plan), retroactive to the date of such disenrollment.
  - (2) **Rule of construction—** Nothing under this subsection shall be construed to preclude the ability of a [State](/usc/42/1396b.md?p=w-7-D) to use other electronic data sources to timely identify potentially deceased beneficiaries, so long as the [State](/usc/42/1396b.md?p=w-7-D) is also in compliance with the requirements of this subsection (and all other requirements under this subchapter relating to [Medicaid](/usc/42/1396b.md?p=w-3-E-iii-III-aa) eligibility determination and redetermination).
- (xx) **Community engagement requirement for applicable individuals—**
  - (1) **In general—** Except as provided in [paragraph (11)](#xx-11), beginning not later than the first day of the first quarter that begins after December 31, 2026, or, at the option of the [State](#xx-9-C) under a waiver or [demonstration project](/usc/42/16281.md?p=d-2) under [section 1315 of this title](/usc/42/1315.md) or the [State](#xx-9-C) plan, such earlier date as the [State](#xx-9-C) may specify, subject to the succeeding provisions of this subsection, a [State](#xx-9-C) shall provide, as a condition of eligibility for medical assistance for an [applicable individual](#xx-8-A-i), that such individual is required to demonstrate community engagement under [paragraph (2)](#xx-2)—
    - (A) in the case of an [applicable individual](#xx-8-A-i) who has filed an application for medical assistance under a [State](#xx-9-C) plan (or a waiver of such plan) under this subchapter, for 1 or more but not more than 3 (as specified by the [State](#xx-9-C)) consecutive months immediately preceding the month during which such individual applies for such medical assistance; and
    - (B) in the case of an [applicable individual](#xx-8-A-i) enrolled and receiving medical assistance under a [State](#xx-9-C) plan (or under a waiver of such plan) under this subchapter, for 1 or more (as specified by the [State](#xx-9-C)) months, whether or not consecutive—
      - (i) during the period between such individual’s most recent determination (or redetermination, as applicable) of eligibility and such individual’s next regularly scheduled redetermination of eligibility (as verified by the [State](#xx-9-C) as part of such regularly scheduled redetermination of eligibility); or
      - (ii) in the case of a [State](#xx-9-C) that has elected under [paragraph (4)](#xx-4) to conduct more frequent verifications of compliance with the requirement to demonstrate community engagement, during the period between the most recent and next such verification with respect to such individual.
  - (2) **Community engagement compliance described—** Subject to [paragraph (3)](#xx-3), an [applicable individual](#xx-8-A-i) demonstrates community engagement under this paragraph for a month if such individual meets 1 or more of the following conditions with respect to such month, as determined in accordance with criteria established by the [Secretary](/usc/42/1301.md?p=a-6) through regulation:
    - (A) The individual works not less than 80 hours.
    - (B) The individual completes not less than 80 hours of community service.
    - (C) The individual participates in a [work program](#xx-9-D) for not less than 80 hours.
    - (D) The individual is enrolled in an [educational program](#xx-9-B) at least half-time.
    - (E) The individual engages in any combination of the activities described in [subparagraphs (A) through (D)](#xx-2-A..xx-2-D), for a total of not less than 80 hours.
    - (F) The individual has a monthly [income](/usc/42/292s.md?p=c-4) that is not less than the applicable minimum wage requirement under [section 206 of title 29](/usc/29/206.md), multiplied by 80 hours.
    - (G) The individual had an average monthly [income](/usc/42/292s.md?p=c-4) over the preceding 6 months that is not less than the applicable minimum wage requirement under [section 206 of title 29](/usc/29/206.md) multiplied by 80 hours, and is a seasonal worker, as described in section 45R(d)(5)(B) of the Internal Revenue Code of 1986 .[^6]
  - (3) **Exceptions—**
    - (A) **Mandatory exception for certain individuals—** The [State](#xx-9-C) shall deem an [applicable individual](#xx-8-A-i) to have demonstrated community engagement under [paragraph (2)](#xx-2) for a month, and may elect to not require an individual to verify information resulting in such deeming, if—
      - (i) for part or all of such month, the individual—
        - (I) was a [specified excluded individual](#xx-9-A-ii) (as defined in [paragraph (9)(A)(ii)](#xx-9-A-ii)); or
        - (II) was—
          - (aa) under the age of 19;
          - (bb) entitled to, or enrolled for, benefits under part A of subchapter XVIII, or enrolled for benefits under part B of subchapter XVIII; or
          - (cc) described in any of [subclauses (I) through (VII)](#a-10-A-i-I..a-10-A-i-VII) of subsection (a)(10)(A)(i); or
      - (ii) at any point during the 3-month period ending on the first day of such month, the individual was an [inmate of a public institution](#nn-3).
    - (B) **Optional exception for short-term hardship events—**
      - (i) **In general—** The [State](#xx-9-C) plan (or waiver of such plan) may provide, in the case of an [applicable individual](#xx-8-A-i) who experiences a short-term hardship event during a month, that the [State](#xx-9-C) shall, under procedures established by the [State](#xx-9-C) (in accordance with [standards](/usc/42/1320d.md?p=7) specified by the [Secretary](/usc/42/1301.md?p=a-6)), in the case of a short-term hardship event described in [clause (ii)(II)](#xx-3-B-ii-II) and, upon the request of such individual, a short-term hardship event described in subclause [(I)](#xx-3-B-ii-I) or [(III)](#xx-3-B-ii-III) of clause (ii), deem such individual to have demonstrated community engagement under [paragraph (2)](#xx-2) for such month.
      - (ii) **Short-term hardship event defined—** For purposes of this subparagraph, an [applicable individual](#xx-8-A-i) experiences a short-term hardship event during a month if, for part or all of such month—
        - (I) such individual receives inpatient [hospital](/usc/42/1395dd.md?p=e-5) services, [nursing facility services](/usc/42/1396d.md?p=f), services in an intermediate care [facility](/usc/42/11049.md?p=4) for individuals with intellectual disabilities, inpatient psychiatric [hospital](/usc/42/1395dd.md?p=e-5) services, or such other services of similar acuity ([including](/usc/42/1301.md?p=b) outpatient care relating to other services specified in this subclause) as the [Secretary](/usc/42/1301.md?p=a-6) determines appropriate;
        - (II) such individual resides in a county (or equivalent [unit of local government](/usc/42/6372.md?p=2))—
          - (aa) in which there exists an emergency or [disaster](/usc/42/5204.md?p=2) declared by the President pursuant to the National Emergencies Act [[50 U.S.C. 1601](/usc/50/1601.md) et seq.] or the Robert T. Stafford [Disaster](/usc/42/5204.md?p=2) Relief and Emergency Assistance Act [[42 U.S.C. 5121](/usc/42/5121.md) et seq.]; or
          - (bb) that, subject to a request from the [State](#xx-9-C) to the [Secretary](/usc/42/1301.md?p=a-6), made in such form, at such time, and containing such information as the [Secretary](/usc/42/1301.md?p=a-6) may require, has an unemployment rate that is at or above the lesser of—
            - (AA) 8 percent; or
            - (BB) 1.5 times the national unemployment rate; or
        - (III) such individual or their dependent must travel outside of their community for an extended period of time to receive medical services necessary to treat a serious or complex medical condition (as described in [paragraph (9)(A)(ii)(V)(ee)](#xx-9-A-ii-V-ee)) that are not available within their community of residence.
  - (4) **Option to conduct more frequent compliance verifications—** With respect to an [applicable individual](#xx-8-A-i) enrolled and receiving medical assistance under a [State](#xx-9-C) plan (or a waiver of such plan) under this subchapter, the [State](#xx-9-C) shall verify (in accordance with procedures specified by the [Secretary](/usc/42/1301.md?p=a-6)) that each such individual has met the requirement to demonstrate community engagement under [paragraph (1)](#xx-1) during each such individual’s regularly scheduled redetermination of eligibility, except that a [State](#xx-9-C) may provide for such verifications more frequently.
  - (5) **Ex parte verifications—** For purposes of verifying that an [applicable individual](#xx-8-A-i) has met the requirement to demonstrate community engagement under [paragraph (1)](#xx-1), or determining such individual to be deemed to have demonstrated community engagement under [paragraph (3)](#xx-3), or that an individual is a [specified excluded individual](#xx-9-A-ii) under [paragraph (9)(A)(ii)](#xx-9-A-ii), the [State](#xx-9-C) shall, in accordance with [standards](/usc/42/1320d.md?p=7) established by the [Secretary](/usc/42/1301.md?p=a-6), establish processes and use reliable information available to the [State](#xx-9-C) (such as payroll data or payments or encounter data under this subchapter for individuals and data on payments to such individuals for the provision of services covered under this subchapter) without requiring, where possible, the [applicable individual](#xx-8-A-i) to submit additional information.
  - (6) **Procedure in the case of noncompliance—**
    - (A) **In general—** If a [State](#xx-9-C) is unable to verify that an [applicable individual](#xx-8-A-i) has met the requirement to demonstrate community engagement under [paragraph (1)](#xx-1) ([including](/usc/42/1301.md?p=b), if applicable, by verifying that such individual was deemed to have demonstrated community engagement under [paragraph (3)](#xx-3)) the [State](#xx-9-C) shall (in accordance with [standards](/usc/42/1320d.md?p=7) specified by the [Secretary](/usc/42/1301.md?p=a-6))—
      - (i) provide such individual with the notice of noncompliance described in [subparagraph (B)](#xx-6-B);
      - (ii)
        - (I) provide such individual with a period of 30 calendar days, beginning on the date on which such notice of noncompliance is received by the individual, to—
          - (aa) make a satisfactory showing to the [State](#xx-9-C) of compliance with such requirement ([including](/usc/42/1301.md?p=b), if applicable, by showing that such individual was or should be deemed to have demonstrated community engagement under [paragraph (3)](#xx-3)); or
          - (bb) make a satisfactory showing to the [State](#xx-9-C) that such requirement does not apply to such individual on the basis that such individual does not meet the definition of [applicable individual](#xx-8-A-i) under [paragraph (9)(A)](#xx-9-A); and
        - (II) if such individual is enrolled under the [State](#xx-9-C) plan (or a waiver of such plan) under this subchapter, continue to provide such individual with medical assistance during such 30-calendar-day period; and
      - (iii) if no such satisfactory showing is made and the individual is not a [specified excluded individual](#xx-9-A-ii) described in [paragraph (9)(A)(ii)](#xx-9-A-ii), deny such individual’s application for medical assistance under the [State](#xx-9-C) plan (or waiver of such plan) or, as applicable, disenroll such individual from the plan (or waiver of such plan) not later than the end of the month following the month in which such 30-calendar-day period ends, provided that—
        - (I) the [State](#xx-9-C) first determines whether, with respect to the individual, there is any other basis for eligibility for medical assistance under the [State](#xx-9-C) plan (or waiver of such plan) or for another insurance affordability [program](/usc/42/274l–1.md?p=4); and
        - (II) the individual is provided written notice and granted an opportunity for a fair hearing in accordance with [subsection (a)(3)](#a-3).
    - (B) **Notice—** The notice of noncompliance provided to an [applicable individual](#xx-8-A-i) under [subparagraph (A)(i)](#xx-6-A-i) shall include information (in accordance with [standards](/usc/42/1320d.md?p=7) specified by the [Secretary](/usc/42/1301.md?p=a-6)) on—
      - (i) how such individual may make a satisfactory showing of compliance with such requirement (as described in [subparagraph (A)(ii)](#xx-6-A-ii)) or make a satisfactory showing that such requirement does not apply to such individual on the basis that such individual does not meet the definition of [applicable individual](#xx-8-A-i) under [paragraph (9)(A)](#xx-9-A); and
      - (ii) how such individual may reapply for medical assistance under the [State](#xx-9-C) plan (or a waiver of such plan) under this subchapter in the case that such individuals’ application is denied or, as applicable, in the case that such individual is disenrolled from the plan (or waiver).
  - (7) **Treatment of noncompliant individuals in relation to certain other provisions—**
    - (A) **Certain FMAP increases—** A [State](#xx-9-C) shall not be treated as not providing medical assistance to all individuals described in [section 1396a(a)(10)(A)(i)(VIII) of this title](#a-10-A-i-VIII), or as not expending amounts for all such individuals under the [State](#xx-9-C) plan (or waiver of such plan), solely because such an individual is determined ineligible for medical assistance under the [State](#xx-9-C) plan (or waiver) on the basis of a failure to meet the requirement to demonstrate community engagement under [paragraph (1)](#xx-1).
    - (B) **Other provisions—** For purposes of section 36B(c)(2)(B) of the Internal Revenue Code of 1986, an individual shall be deemed to be eligible for minimum essential coverage described in section 5000A(f)(1)(A)(ii) of such Code for a month if such individual would have been eligible for medical assistance under a [State](#xx-9-C) plan (or a waiver of such plan) under this subchapter but for a failure to meet the requirement to demonstrate community engagement under [paragraph (1)](#xx-1).
  - (8) **Outreach—**
    - (A) **In general—** In accordance with [standards](/usc/42/1320d.md?p=7) specified by the [Secretary](/usc/42/1301.md?p=a-6), beginning not later than the date that precedes December 31, 2026 (or, if the [State](#xx-9-C) elects under [paragraph (1)](#xx-1) to specify an earlier date, such earlier date) by the number of months specified by the [State](#xx-9-C) under [paragraph (1)(A)](#xx-1-A) plus 3 months, and periodically thereafter, the [State](#xx-9-C) shall notify [applicable individuals](#xx-8-A-i) enrolled under a [State](#xx-9-C) plan (or waiver) under this subchapter of the requirement to demonstrate community engagement under this subsection. Such notice shall include information on—
      - (i) how to comply with such requirement, [including](/usc/42/1301.md?p=b) an explanation of the exceptions to such requirement under [paragraph (3)](#xx-3) and the definition of the term “applicable individual” under [paragraph (9)(A)](#xx-9-A);
      - (ii) the consequences of noncompliance with such requirement; and
      - (iii) how to report to the [State](#xx-9-C) any change in the individual’s status that could result in—
        - (I) the applicability of an exception under [paragraph (3)](#xx-3) (or the end of the applicability of such an exception); or
        - (II) the individual qualifying as a [specified excluded individual](#xx-9-A-ii) under [paragraph (9)(A)(ii)](#xx-9-A-ii).
    - (B) **Form of outreach notice—** A notice required under [subparagraph (A)](#xx-8-A) shall be delivered—
      - (i) by regular mail (or, if elected by the individual, in an electronic format); and
      - (ii) in 1 or more additional forms, which may include telephone, text message, an internet website, other commonly available electronic means, and such other forms as the [Secretary](/usc/42/1301.md?p=a-6) determines appropriate.
  - (9) **Definitions—** In this subsection:
    - (A) **Applicable individual—**
      - (i) **In general—** The term “[applicable individual](#xx-8-A-i)” means an individual (other than a [specified excluded individual](#xx-9-A-ii) (as defined in [clause (ii)](#xx-9-A-ii)))—
        - (I) who is eligible to enroll (or is enrolled) under the [State](#xx-9-C) plan under [subsection (a)(10)(A)(i)(VIII)](#a-10-A-i-VIII); or
        - (II) who—
          - (aa) is otherwise eligible to enroll (or is enrolled) under a waiver of such plan that provides coverage that is equivalent to minimum essential coverage (as described in section 5000A(f)(1)(A) of the Internal Revenue Code of 1986 and as determined in accordance with [standards](/usc/42/1320d.md?p=7) prescribed by the [Secretary](/usc/42/1301.md?p=a-6) in regulations); and
          - (bb) has attained the age of 19 and is under 65 years of age, is not pregnant, is not entitled to, or enrolled for, benefits under part A of subchapter XVIII, or enrolled for benefits under part B of subchapter XVIII, and is not otherwise eligible to enroll under such plan.
      - (ii) **Specified excluded individual—** For purposes of [clause (i)](#xx-9-A-i), the term “specified excluded individual” means an individual, as determined by the [State](#xx-9-C) (in accordance with [standards](/usc/42/1320d.md?p=7) specified by the [Secretary](/usc/42/1301.md?p=a-6))—
        - (I) who is described in [subsection (a)(10)(A)(i)(IX)](#a-10-A-i-IX);
        - (II) who—
          - (aa) is an [Indian](/usc/42/6862.md?p=6) or an Urban [Indian](/usc/42/6862.md?p=6) (as such terms are defined in paragraphs (13) and (28) of [section 1603 of title 25](/usc/25/1603.md));
          - (bb) is a California [Indian](/usc/42/6862.md?p=6) described in section 1679(a) of such title; or
          - (cc) has otherwise been determined eligible as an [Indian](/usc/42/6862.md?p=6) for the [Indian](/usc/42/6862.md?p=6) Health Service under regulations promulgated by the [Secretary](/usc/42/1301.md?p=a-6);
        - (III) who is the [parent](#k-3), guardian, caretaker relative, or [family](/usc/42/290ff–4.md?p=d-2) [caregiver](/usc/42/1397j.md?p=3) (as defined in section 2 of the RAISE [Family](/usc/42/290ff–4.md?p=d-2) Caregivers Act) of a dependent [child](/usc/42/416.md?p=e) 13 years of age and under or a disabled individual;
        - (IV) who is a veteran with a disability rated as total under [section 1155 of title 38](/usc/38/1155.md);
        - (V) who is medically frail or otherwise has special medical needs (as defined by the [Secretary](/usc/42/1301.md?p=a-6)), [including](/usc/42/1301.md?p=b) an individual—
          - (aa) who is blind or disabled (as defined in [section 1382c of this title](/usc/42/1382c.md));
          - (bb) with a substance use disorder;
          - (cc) with a disabling mental disorder;
          - (dd) with a physical, intellectual or [developmental disability](/usc/42/280i.md?p=d-2) that significantly impairs their ability to perform 1 or more activities of daily living; or
          - (ee) with a serious or complex medical condition;
        - (VI) who—
          - (aa) is in compliance with any requirements imposed by the [State](#xx-9-C) pursuant to [section 607 of this title](/usc/42/607.md); or
          - (bb) is a member of a household that receives supplemental nutrition assistance [program](/usc/42/274l–1.md?p=4) benefits under the Food and Nutrition Act of 2008 and is not exempt from a work requirement under such Act;
        - (VII) who is participating in a [drug](/usc/42/282.md?p=j-1-A-vii) addiction or alcoholic [treatment](/usc/42/11851.md?p=11) and rehabilitation [program](/usc/42/274l–1.md?p=4) (as defined in [section 3(h)](/usc/42/3.md) of the Food and Nutrition Act of 2008 [[7 U.S.C. 2012(h)](/usc/7/2012.md?p=h)]);
        - (VIII) who is an [inmate of a public institution](#nn-3); or
        - (IX) who is pregnant or entitled to postpartum medical assistance under paragraph [(5)](#e-5) or [(16)](#e-16) of subsection (e).
    - (B) **Educational program—** The term “educational program” [includes](/usc/42/1301.md?p=b)—
      - (i) an [institution of higher education](/usc/42/6371h–1.md?p=a-4) (as defined in [section 1001 of title 20](/usc/20/1001.md)); and
      - (ii) a [program](/usc/42/274l–1.md?p=4) of career and technical education (as defined in [section 2302 of title 20](/usc/20/2302.md)).
    - (C) **State—** The term “State” means 1 of the 50 States or the District of Columbia.
    - (D) **Work program—** The term “work program” has the meaning given such term in section 6(o)(1) of the Food and Nutrition Act of 2008 [[7 U.S.C. 2015(o)(1)](/usc/7/2015.md?p=o-1)].
  - (10) **Prohibiting waiver of community engagement requirements—** Notwithstanding [section 1315(a) of this title](/usc/42/1315.md?p=a), the provisions of this subsection may not be waived.
  - (11) **Special implementation rule—**
    - (A) **In general—** Subject to [subparagraph (C)](#xx-11-C), the [Secretary](/usc/42/1301.md?p=a-6) may exempt a [State](#xx-9-C) from compliance with the requirements of this subsection if—
      - (i) the [State](#xx-9-C) submits to the [Secretary](/usc/42/1301.md?p=a-6) a request for such exemption, made in such form and at such time as the [Secretary](/usc/42/1301.md?p=a-6) may require, and [including](/usc/42/1301.md?p=b) the information specified in [subparagraph (B)](#xx-11-B); and
      - (ii) the [Secretary](/usc/42/1301.md?p=a-6) determines that based on such request, the [State](#xx-9-C) is demonstrating a good faith effort to comply with the requirements of this subsection.
    - (B) **Good faith effort determination—** In determining whether a [State](#xx-9-C) is demonstrating a good faith effort for purposes of [subparagraph (A)(ii)](#xx-11-A-ii), the [Secretary](/usc/42/1301.md?p=a-6) shall consider—
      - (i) any actions taken by the [State](#xx-9-C) toward compliance with the requirements of this subsection;
      - (ii) any significant barriers to or challenges in meeting such requirements, [including](/usc/42/1301.md?p=b) related to funding, design, development, procurement, or installation of necessary systems or resources;
      - (iii) the [State](#xx-9-C)’s detailed plan and timeline for achieving full compliance with such requirements, [including](/usc/42/1301.md?p=b) any milestones of such plan (as defined by the [Secretary](/usc/42/1301.md?p=a-6)); and
      - (iv) any other criteria determined appropriate by the [Secretary](/usc/42/1301.md?p=a-6).
    - (C) **Duration of exemption—**
      - (i) **In general—** An exemption granted under [subparagraph (A)](#xx-11-A) shall expire not later than December 31, 2028, and may not be renewed beyond such date.
      - (ii) **Early termination—** The [Secretary](/usc/42/1301.md?p=a-6) may terminate an exemption granted under [subparagraph (A)](#xx-11-A) prior to the expiration date of such exemption if the [Secretary](/usc/42/1301.md?p=a-6) determined that the [State](#xx-9-C) has—
        - (I) failed to comply with the reporting requirements described in [subparagraph (D)](#xx-11-D); or
        - (II) based on the information provided pursuant to [subparagraph (D)](#xx-11-D), failed to make continued good faith efforts toward compliance with the requirements of this subsection.
    - (D) **Reporting requirements—** A [State](#xx-9-C) granted an exemption under [subparagraph (A)](#xx-11-A) shall submit to the [Secretary](/usc/42/1301.md?p=a-6)—
      - (i) quarterly progress reports on the [State](#xx-9-C)’s status in achieving the milestones toward full compliance described in [subparagraph (B)(iii)](#xx-11-B-iii); and
      - (ii) information on specific risks or newly identified barriers or challenges to full compliance, [including](/usc/42/1301.md?p=b) the [State](#xx-9-C)’s plan to mitigate such risks, barriers, or challenges.
- (yy) **Active duty relocated individual; home and community-based services waiting list—** For purposes of [subsection (a)(90)](#a-90) and this subsection:
  - (1) **Active duty relocated individual—** The term “active duty relocated individual” means an individual—
    - (A) who—
      - (i) is enrolled under the [State](/usc/42/1396b.md?p=w-7-D) plan (or waiver of such plan); or
      - (ii) with respect to an individual described in [subparagraph (C)(ii)](#yy-1-C-ii), would be so enrolled pursuant to [subsection (a)(10)(A)(ii)(VI)](#a-10-A-ii-VI) if such individual began receiving home and community-based services;
    - (B) who—
      - (i) is a member of the Armed Forces engaged in active duty service and is relocated to another [State](/usc/42/1396b.md?p=w-7-D) (in this subsection referred to as the “military service relocation [State](/usc/42/1396b.md?p=w-7-D)”) by reason of such service;
      - (ii) would be described in [clause (i)](#yy-1-B-i) except that the individual stopped being engaged in active duty service ([including](/usc/42/1301.md?p=b) by reason of retirement from such service) and the last day on which the individual was engaged in active duty service occurred not more than 12 months ago; or
      - (iii) is a dependent (as defined by the [Secretary](/usc/42/1301.md?p=a-6)) of a member described in clause [(i)](#yy-1-B-i) or [(ii)](#yy-1-B-ii) who relocates to the military service relocation [State](/usc/42/1396b.md?p=w-7-D) with such member; and
    - (C) who—
      - (i) was receiving home and community-based services (as defined in section 9817(a)(2)(B) of the American Rescue Plan Act of 2021) at the time of such relocation; or
      - (ii) if the [State](/usc/42/1396b.md?p=w-7-D) maintains a [home and community-based services waiting list](#yy-2), was on such [home and community-based services waiting list](#yy-2) at the time of such relocation.
  - (2) **Home and community-based services waiting list—** The term “home and community-based services waiting list” means, in the case of a [State](/usc/42/1396b.md?p=w-7-D) that has a limit on the number of individuals who may receive home and community-based services under [section 1315(a) of this title](/usc/42/1315.md?p=a) or [section 1396n(c) of this title](/usc/42/1396n.md?p=c), a list maintained by such [State](/usc/42/1396b.md?p=w-7-D) of individuals who are requesting to receive such services under 1 or more such sections but for whom the [State](/usc/42/1396b.md?p=w-7-D) has not yet completed an assessment and rendered a decision with respect to the eligibility of such individuals to receive the relevant home and community-based services at the time a slot for such services becomes available due to such limit.

# §1396b. Payment to States

- (a) **Computation of amount—** From the sums appropriated therefor, the [Secretary](/usc/42/1301.md?p=a-6) (except as otherwise provided in this section) shall pay to each [State](#w-7-D) which has a plan approved under this subchapter, for each quarter, beginning with the quarter commencing January 1, 1966—
  - (1) an amount equal to the Federal medical assistance percentage (as defined in [section 1396d(b) of this title](/usc/42/1396d.md?p=b), subject to subsections [(g)](#g) and [(j)](#j) of this section and [section 1396r–4(f) of this title](/usc/42/1396r–4.md?p=f)) of the total amount expended during such quarter as medical assistance under the [State](#w-7-D) plan; plus
  - (2)
    - (A) an amount equal to 75 per centum of so much of the sums expended during such quarter (as found necessary by the [Secretary](/usc/42/1301.md?p=a-6) for the proper and efficient [administration](/usc/42/1301.md?p=a-10) of the [State](#w-7-D) plan) as are attributable to compensation or [training](/usc/42/285e–2.md?p=b-2) of skilled professional medical personnel, and staff directly supporting such personnel, of the [State agency](/usc/42/1320a–7a.md?p=i-1) or any other [public agency](/usc/42/11851.md?p=8); plus
    - (B) notwithstanding [paragraph (1)](#a-1) or [subparagraph (A)](#a-2-A), with respect to amounts expended for nursing aide [training](/usc/42/285e–2.md?p=b-2) and competency evaluation [programs](/usc/42/274l–1.md?p=4), and competency evaluation [programs](/usc/42/274l–1.md?p=4), described in [section 1396r(e)(1) of this title](/usc/42/1396r.md?p=e-1) ([including](/usc/42/1301.md?p=b) the costs for nurse aides to complete such competency evaluation [programs](/usc/42/274l–1.md?p=4)), regardless of whether the [programs](/usc/42/274l–1.md?p=4) are provided in or outside [nursing facilities](/usc/42/1396r.md?p=a) or of the skill of the personnel involved in such [programs](/usc/42/274l–1.md?p=4), an amount equal to 50 percent (or, for calendar quarters beginning on or after July 1, 1988, and before October 1, 1990, the lesser of 90 percent or the Federal medical assistance percentage plus 25 percentage points) of so much of the sums expended during such quarter (as found necessary by the [Secretary](/usc/42/1301.md?p=a-6) for the proper and efficient [administration](/usc/42/1301.md?p=a-10) of the [State](#w-7-D) plan) as are attributable to such [programs](/usc/42/274l–1.md?p=4); plus
    - (C) an amount equal to 75 percent of so much of the sums expended during such quarter (as found necessary by the [Secretary](/usc/42/1301.md?p=a-6) for the proper and efficient [administration](/usc/42/1301.md?p=a-10) of the [State](#w-7-D) plan) as are attributable to preadmission screening and resident review activities conducted by the [State](#w-7-D) under [section 1396r(e)(7) of this title](/usc/42/1396r.md?p=e-7); plus
    - (D) for each calendar quarter during—
      - (i) fiscal year 1991, an amount equal to 90 percent,
      - (ii) fiscal year 1992, an amount equal to 85 percent,
      - (iii) fiscal year 1993, an amount equal to 80 percent, and
      - (iv) fiscal year 1994 and thereafter, an amount equal to 75 percent,

      of so much of the sums expended during such quarter (as found necessary by the [Secretary](/usc/42/1301.md?p=a-6) for the proper and efficient [administration](/usc/42/1301.md?p=a-10) of the [State](#w-7-D) plan) as are attributable to [State](#w-7-D) activities under [section 1396r(g) of this title](/usc/42/1396r.md?p=g); plus

    - (E) an amount equal to 75 percent of so much of the sums expended during such quarter (as found necessary by the [Secretary](/usc/42/1301.md?p=a-6) for the proper and efficient [administration](/usc/42/1301.md?p=a-10) of the [State](#w-7-D) plan) as are attributable to translation or interpretation services in connection with the enrollment of, retention of, and use of services under this subchapter by, [children](/usc/42/256e.md?p=g-2) of [families](/usc/42/12704.md?p=11) for whom English is not the primary language; plus
  - (3) an amount equal to—
    - (A)
      - (i) 90 per centum of so much of the sums expended during such quarter as are attributable to the design, development, or installation of such mechanized [claims](/usc/42/1320a–7a.md?p=i-2) processing and information retrieval systems as the [Secretary](/usc/42/1301.md?p=a-6) determines are likely to provide more efficient, economical, and effective [administration](/usc/42/1301.md?p=a-10) of the plan and to be compatible with the [claims](/usc/42/1320a–7a.md?p=i-2) processing and information retrieval systems utilized in the [administration](/usc/42/1301.md?p=a-10) of subchapter XVIII, [including](/usc/42/1301.md?p=b) the [State](#w-7-D)’s share of the cost of installing such a system to be used jointly in the [administration](/usc/42/1301.md?p=a-10) of such [State](#w-7-D)’s plan and the plan of any other [State](#w-7-D) approved under this subchapter,
      - (ii) 90 per centum of so much of the sums expended during any such quarter in the fiscal year ending June 30, 1972, or the fiscal year ending June 30, 1973, as are attributable to the design, development, or installation of cost determination systems for [State](#w-7-D)-owned general [hospitals](/usc/42/1395dd.md?p=e-5) (except that the total amount paid to all [States](#w-7-D) under this clause for either such fiscal year shall not exceed $150,000), and
      - (iii) an amount equal to the Federal medical assistance percentage (as defined in [section 1396d(b) of this title](/usc/42/1396d.md?p=b)) of so much of the sums expended during such quarter (as found necessary by the [Secretary](/usc/42/1301.md?p=a-6) for the proper and efficient [administration](/usc/42/1301.md?p=a-10) of the [State](#w-7-D) plan) as are attributable to such developments or [modifications](/usc/42/7501.md?p=4) of systems of the type described in [clause (i)](#a-3-A-i) as are necessary for the efficient collection and reporting on [child](/usc/42/416.md?p=e) health measures; and
    - (B) 75 per centum of so much of the sums expended during such quarter as are attributable to the operation of systems (whether such systems are operated directly by the [State](#w-7-D) or by another [person](/usc/42/1301.md?p=a-3) under a contract with the [State](#w-7-D)) of the type described in [subparagraph (A)(i)](#a-3-A-i) (whether or not designed, developed, or installed with assistance under such subparagraph) which are approved by the [Secretary](/usc/42/1301.md?p=a-6) and which include provision for prompt written notice to each individual who is furnished services covered by the plan, or to each individual in a sample group of individuals who are furnished such services, of the specific services (other than confidential services) so covered, the name of the [person](/usc/42/1301.md?p=a-3) or [persons](/usc/42/1301.md?p=a-3) furnishing the services, the date or dates on which the services were furnished, and the amount of the payment or payments made under the plan on account of the services; and
    - (C)
      - (i) 75 per centum of the sums expended with respect to costs incurred during such quarter (as found necessary by the [Secretary](/usc/42/1301.md?p=a-6) for the proper and efficient [administration](/usc/42/1301.md?p=a-10) of the [State](#w-7-D) plan) as are attributable to the performance of medical and utilization review by a utilization and quality [control](#m-1-C-ii) peer review organization[^1] or by an entity which meets the requirements of [section 1320c–1 of this title](/usc/42/1320c–1.md), as determined by the [Secretary](/usc/42/1301.md?p=a-6), under a contract entered into under [section 1396a(d) of this title](/usc/42/1396a.md?p=d); and
      - (ii) 75 percent of the sums expended with respect to costs incurred during such quarter (as found necessary by the [Secretary](/usc/42/1301.md?p=a-6) for the proper and efficient [administration](/usc/42/1301.md?p=a-10) of the [State](#w-7-D) plan) as are attributable to the performance of independent external reviews conducted under [section 1396u–2(c)(2) of this title](/usc/42/1396u–2.md?p=c-2); and
    - (D) 75 percent of so much of the sums expended by the [State](#w-7-D) plan during a quarter in 1991, 1992, or 1993, as the [Secretary](/usc/42/1301.md?p=a-6) determines is attributable to the statewide adoption of a [drug](/usc/42/282.md?p=j-1-A-vii) use review [program](/usc/42/274l–1.md?p=4) which conforms to the requirements of [section 1396r–8(g) of this title](/usc/42/1396r–8.md?p=g);
    - (E) 50 percent of the sums expended with respect to costs incurred during such quarter as are attributable to providing—
      - (i) services to identify and educate individuals who are likely to be eligible for medical assistance under this subchapter and who have Sickle Cell Disease or who are carriers of the sickle cell gene, [including](/usc/42/1301.md?p=b) education regarding how to identify such individuals; or
      - (ii) education regarding the risks of stroke and other complications, as well as the prevention of stroke and other complications, in individuals who are likely to be eligible for medical assistance under this subchapter and who have Sickle Cell Disease; and
    - (F)
      - (i) 100 percent of so much of the sums expended during such quarter as are attributable to payments to Medicaid providers described in [subsection (t)(1)](#t-1) to encourage the adoption and use of [certified EHR technology](/usc/42/300jj.md?p=1); and
      - (ii) 90 percent of so much of the sums expended during such quarter as are attributable to payments for reasonable administrative expenses related to the [administration](/usc/42/1301.md?p=a-10) of payments described in [clause (i)](#a-3-F-i) if the [State](#w-7-D) meets the condition described in [subsection (t)(9)](#t-9); plus
    - (H)
      - (i) [^2] 90 percent of the sums expended during the quarter as are attributable to the design, development, or installation of such mechanized verification and information retrieval systems as the [Secretary](/usc/42/1301.md?p=a-6) determines are necessary to implement [section 1396a(ee) of this title](/usc/42/1396a.md?p=ee) ([including](/usc/42/1301.md?p=b) a system described in [paragraph (2)(B)](#a-2-B) thereof),[^3] and
      - (ii) 75 percent of the sums expended during the quarter as are attributable to the operation of systems to which [clause (i)](#a-3-H-i) applies,[^3] plus
  - (4) an amount equal to 100 percent of the sums expended during the quarter which are attributable to the costs of the implementation and operation of the immigration status verification system described in [section 1320b–7(d) of this title](/usc/42/1320b–7.md?p=d); plus
  - (5) an amount equal to 90 per centum of the sums expended during such quarter which are attributable to the offering, arranging, and furnishing (directly or on a contract basis) of [family](/usc/42/290ff–4.md?p=d-2) planning services and supplies;
  - (6) subject to [subsection (b)(3)](#b-3), an amount equal to—
    - (A) 90 per centum of the sums expended during such a quarter within the twelve-quarter period beginning with the first quarter in which a payment is made to the [State](#w-7-D) pursuant to this paragraph, and
    - (B) 75 per centum of the sums expended during each succeeding calendar quarter,

    with respect to costs incurred during such quarter which are attributable to the establishment and operation of ([including](/usc/42/1301.md?p=b) the [training](/usc/42/285e–2.md?p=b-2) of personnel employed by) a [State medicaid fraud control unit](#q) (described in [subsection (q)](#q)); plus

  - (7) subject to [section 1396r(g)(3)(B) of this title](/usc/42/1396r.md?p=g-3-B), an amount equal to 50 per centum of the remainder of the amounts expended during such quarter as found necessary by the [Secretary](/usc/42/1301.md?p=a-6) for the proper and efficient [administration](/usc/42/1301.md?p=a-10) of the [State](#w-7-D) plan.
- (b) **Quarterly expenditures beginning after December 31, 1969—**
  - (1) Notwithstanding the preceding provisions of this section, the amount determined under [subsection (a)(1)](#a-1) for any [State](#w-7-D) for any quarter beginning after December 31, 1969, shall not take into account any amounts expended as medical assistance with respect to individuals aged 65 or over and disabled individuals entitled to [hospital](/usc/42/1395dd.md?p=e-5) insurance benefits under subchapter XVIII which would not have been so expended if the individuals involved had been enrolled in the insurance [program](/usc/42/274l–1.md?p=4) established by part B of subchapter XVIII, other than amounts expended under provisions of the plan of such [State](#w-7-D) required by [section 1396a(a)(34) of this title](/usc/42/1396a.md?p=a-34).
  - (2) For limitation on Federal participation for capital expenditures which are out of conformity with a comprehensive plan of a [State](#w-7-D) or areawide planning [agency](/usc/42/1397n–12.md?p=1), see [section 1320a–1 of this title](/usc/42/1320a–1.md).
  - (3) The amount of [funds](/usc/42/12854.md?p=3) which the [Secretary](/usc/42/1301.md?p=a-6) is otherwise obligated to pay a [State](#w-7-D) during a quarter under [subsection (a)(6)](#a-6) may not exceed the higher of—
    - (A) $125,000, or
    - (B) one-quarter of 1 per centum of the sums expended by the Federal, [State](#w-7-D), and [local governments](/usc/42/8401a.md) during the previous quarter in carrying out the [State](#w-7-D)’s plan under this subchapter.
  - (4) Amounts expended by a [State](#w-7-D) for the use of an enrollment broker in marketing [medicaid managed care organizations](#m-1-A) and other [managed care entities](#m-9-D-i) to [eligible individuals](/usc/42/239.md?p=a-6) under this subchapter shall be considered, for purposes of [subsection (a)(7)](#a-7), to be necessary for the proper and efficient [administration](/usc/42/1301.md?p=a-10) of the [State](#w-7-D) plan but only if the following conditions are met with respect to the broker:
    - (A) The broker is independent of any such entity and of any [health care providers](/usc/42/300jj.md?p=3) (whether or not any such provider participates in the [State](#w-7-D) plan under this subchapter) that provide coverage of services in the same [State](#w-7-D) in which the broker is conducting enrollment activities.
    - (B) No [person](/usc/42/1301.md?p=a-3) who is an [owner](/usc/42/13641.md?p=4), [employee](/usc/42/1320a–7h.md?p=e-7), consultant, or has a contract with the broker either has any direct or indirect financial interest with such an entity or [health care provider](/usc/42/300jj.md?p=3) or has been excluded from participation in the [program](/usc/42/274l–1.md?p=4) under this subchapter or subchapter XVIII or debarred by any Federal [agency](/usc/42/1397n–12.md?p=1), or subject to a civil money penalty under this chapter.
  - (5) Notwithstanding the preceding provisions of this section, the amount determined under [subsection (a)(1)](#a-1) for any [State](#w-7-D) shall be decreased in a quarter by the amount of any health care related taxes (described in [subsection (w)(3)(A)](#w-3-A))[^4] that are imposed on a [hospital](/usc/42/1395dd.md?p=e-5) described in [subsection (w)(3)(F)](#w-3-F) in that quarter.
- (c) **Treatment of educationally-related services—** Nothing in this subchapter shall be construed as prohibiting or restricting, or authorizing the [Secretary](/usc/42/1301.md?p=a-6) to prohibit or restrict, payment under [subsection (a)](#a) for medical assistance for covered services furnished to a [child](/usc/42/416.md?p=e) with a disability because such services are included in the [child](/usc/42/416.md?p=e)’s individualized education [program](/usc/42/274l–1.md?p=4) established pursuant to part B of the Individuals with Disabilities Education Act [[20 U.S.C. 1411](/usc/20/1411.md) et seq.] or furnished to an infant or toddler with a disability because such services are included in the [child](/usc/42/416.md?p=e)’s individualized [family](/usc/42/290ff–4.md?p=d-2) service plan adopted pursuant to part C of such Act [[20 U.S.C. 1431](/usc/20/1431.md) et seq.].
- (d) **Estimates of State entitlement; installments; adjustments to reflect overpayments or underpayments; time for recovery or adjustment; uncollectable or discharged debts; obligated appropriations; disputed claims—**
  - (1) Prior to the beginning of each quarter, the [Secretary](/usc/42/1301.md?p=a-6) shall estimate the amount to which a [State](#w-7-D) will be entitled under subsections [(a)](#a) and [(b)](#b) for such quarter, such estimates to be based on (A) a report filed by the [State](#w-7-D) containing its estimate of the total sum to be expended in such quarter in accordance with the provisions of such subsections, and stating the amount appropriated or made available by the [State](#w-7-D) and its political subdivisions for such expenditures in such quarter, and if such amount is less than the [State](#w-7-D)’s proportionate share of the total sum of such estimated expenditures, the source or sources from which the difference is expected to be derived, and (B) such other investigation as the [Secretary](/usc/42/1301.md?p=a-6) may find necessary.
  - (2)
    - (A) The [Secretary](/usc/42/1301.md?p=a-6) shall then pay to the [State](#w-7-D), in such installments as he may determine, the amount so estimated, reduced or increased to the extent of any overpayment or underpayment which the [Secretary](/usc/42/1301.md?p=a-6) determines was made under this section to such [State](#w-7-D) for any prior quarter and with respect to which adjustment has not already been made under this subsection.
    - (B) Expenditures for which payments were made to the [State](#w-7-D) under [subsection (a)](#a) shall be treated as an overpayment to the extent that the [State](#w-7-D) or local [agency](/usc/42/1397n–12.md?p=1) administering such plan has been reimbursed for such expenditures by a third party pursuant to the provisions of its plan in compliance with [section 1396a(a)(25) of this title](/usc/42/1396a.md?p=a-25).
    - (C) For purposes of this subsection, when an overpayment is discovered, which was made by a [State](#w-7-D) to a [person](/usc/42/1301.md?p=a-3) or other entity, the [State](#w-7-D) shall have a period of 1 year in which to recover or attempt to recover such overpayment before adjustment is made in the Federal payment to such [State](#w-7-D) on account of such overpayment. Except as otherwise provided in [subparagraph (D)](#d-2-D), the adjustment in the Federal payment shall be made at the end of the 1-year period, whether or not recovery was made.
    - (D)
      - (i) In any case where the [State](#w-7-D) is unable to recover a debt which represents an overpayment (or any portion thereof) made to a [person](/usc/42/1301.md?p=a-3) or other entity on account of such debt having been discharged in bankruptcy or otherwise being uncollectable, no adjustment shall be made in the Federal payment to such [State](#w-7-D) on account of such overpayment (or portion thereof).
      - (ii) In any case where the [State](#w-7-D) is unable to recover a debt which represents an overpayment (or any portion thereof) made to a [person](/usc/42/1301.md?p=a-3) or other entity due to fraud within 1 year of discovery because there is not a final determination of the amount of the overpayment under an administrative or judicial process (as applicable), [including](/usc/42/1301.md?p=b) as a result of a judgment being under appeal, no adjustment shall be made in the Federal payment to such [State](#w-7-D) on account of such overpayment (or portion thereof) before the date that is 30 days after the date on which a final judgment ([including](/usc/42/1301.md?p=b), if applicable, a final determination on an appeal) is made.
  - (3)
    - (A) The pro rata share to which the [United States](/usc/42/1301.md?p=a-2) is equitably entitled, as determined by the [Secretary](/usc/42/1301.md?p=a-6), of the net amount recovered during any quarter by the [State](#w-7-D) or any political subdivision thereof with respect to medical assistance furnished under the [State](#w-7-D) plan shall be considered an overpayment to be adjusted under this subsection.
    - (B)
      - (i) [Subparagraph (A)](#d-3-A) and [paragraph (2)(B)](#d-2-B) shall not apply to any amount recovered or paid to a [State](#w-7-D) as part of the comprehensive settlement of November 1998 between [manufacturers](/usc/42/300aa–33.md?p=3) of tobacco products, as defined in section 5702(d) of the Internal Revenue Code of 1986, and [State](#w-7-D) Attorneys General, or as part of any individual [State](#w-7-D) settlement or judgment reached in litigation initiated or pursued by a [State](#w-7-D) against one or more such [manufacturers](/usc/42/300aa–33.md?p=3).
      - (ii) Except as provided in [subsection (i)(19)](#i-19), a [State](#w-7-D) may use amounts recovered or paid to the [State](#w-7-D) as part of a comprehensive or individual settlement, or a judgment, described in [clause (i)](#d-3-B-i) for any expenditures determined appropriate by the [State](#w-7-D).
  - (4) Upon the making of any estimate by the [Secretary](/usc/42/1301.md?p=a-6) under this subsection, any appropriations available for payments under this section shall be deemed obligated.
  - (5) In any case in which the [Secretary](/usc/42/1301.md?p=a-6) estimates that there has been an overpayment under this section to a [State](#w-7-D) on the basis of a [claim](/usc/42/1320a–7a.md?p=i-2) by such [State](#w-7-D) that has been disallowed by the [Secretary](/usc/42/1301.md?p=a-6) under [section 1316(d) of this title](/usc/42/1316.md?p=d), and such [State](#w-7-D) disputes such disallowance, the amount of the Federal payment in controversy shall, at the option of the [State](#w-7-D), be retained by such [State](#w-7-D) or recovered by the [Secretary](/usc/42/1301.md?p=a-6) pending a final determination with respect to such payment amount. If such final determination is to the effect that any amount was properly disallowed, and the [State](#w-7-D) chose to retain payment of the amount in controversy, the [Secretary](/usc/42/1301.md?p=a-6) shall offset, from any subsequent payments made to such [State](#w-7-D) under this subchapter, an amount equal to the proper amount of the disallowance plus interest on such amount disallowed for the period beginning on the date such amount was disallowed and ending on the date of such final determination at a rate (determined by the [Secretary](/usc/42/1301.md?p=a-6)) based on the average of the bond equivalent of the weekly 90-day treasury bill auction rates during such period.
  - (6)
    - (A) Each [State](#w-7-D) (as defined in [subsection (w)(7)(D)](#w-7-D)) shall include, in the first report submitted under [paragraph (1)](#d-1) after the end of each fiscal year, information related to—
      - (i) provider-related donations made to the [State](#w-7-D) or [units](/usc/42/1395w–114b.md?p=g-2) of [local government](/usc/42/8401a.md) during such fiscal year, and
      - (ii) health care related taxes collected by the [State](#w-7-D) or such [units](/usc/42/1395w–114b.md?p=g-2) during such fiscal year.
    - (B) Each [State](#w-7-D) shall include, in the first report submitted under [paragraph (1)](#d-1) after the end of each fiscal year, information related to the total amount of payment adjustments made, and the amount of payment adjustments made to individual providers (by provider), under [section 1396r–4(c) of this title](/usc/42/1396r–4.md?p=c) during such fiscal year.
- (e) **Transition costs of closures or conversions permitted—** A [State](#w-7-D) plan approved under this subchapter may include, as a cost with respect to [hospital](/usc/42/1395dd.md?p=e-5) services under the plan under this subchapter, periodic expenditures made to reflect transitional allowances established with respect to a [hospital](/usc/42/1395dd.md?p=e-5) closure or conversion under [section 1395uu of this title](/usc/42/1395uu.md).
- (f) **Limitation on Federal participation in medical assistance—**
  - (1)
    - (A) Except as provided in [paragraph (4)](#f-4), payment under the preceding provisions of this section shall not be made with respect to any amount expended as medical assistance in a calendar quarter, in any [State](#w-7-D), for any member of a [family](/usc/42/290ff–4.md?p=d-2) the annual [income](/usc/42/292s.md?p=c-4) of which exceeds the applicable [income](/usc/42/292s.md?p=c-4) limitation determined under this paragraph.
    - (B)
      - (i) Except as provided in clause (ii) of this subparagraph, the applicable [income](/usc/42/292s.md?p=c-4) limitation with respect to any [family](/usc/42/290ff–4.md?p=d-2) is the amount determined, in accordance with [standards](/usc/42/1320d.md?p=7) prescribed by the [Secretary](/usc/42/1301.md?p=a-6), to be equivalent to 133⅓ percent of the highest amount which would ordinarily be paid to a [family](/usc/42/290ff–4.md?p=d-2) of the same size without any [income](/usc/42/292s.md?p=c-4) or resources, in the form of money payments, under the plan of the [State](#w-7-D) approved under part A of subchapter IV of this chapter.
      - (ii) If the [Secretary](/usc/42/1301.md?p=a-6) finds that the operation of a uniform maximum limits payments to [families](/usc/42/12704.md?p=11) of more than one size, he may adjust the amount otherwise determined under [clause (i)](#f-1-B-i) to take account of [families](/usc/42/12704.md?p=11) of different sizes.
    - (C) The total amount of any applicable [income](/usc/42/292s.md?p=c-4) limitation determined under [subparagraph (B)](#f-1-B) shall, if it is not a multiple of $100 or such other amount as the [Secretary](/usc/42/1301.md?p=a-6) may prescribe, be rounded to the next higher multiple of $100 or such other amount, as the case may be.
  - (2)
    - (A) In computing a [family](/usc/42/290ff–4.md?p=d-2)’s [income](/usc/42/292s.md?p=c-4) for purposes of [paragraph (1)](#f-1), there shall be excluded any costs (whether in the form of insurance premiums or otherwise and regardless of whether such costs are reimbursed under another public [program](/usc/42/274l–1.md?p=4) of the [State](#w-7-D) or political subdivision thereof) incurred by such [family](/usc/42/290ff–4.md?p=d-2) for [medical care](/usc/42/1301.md?p=a-7) or for any other type of remedial care recognized under [State](#w-7-D) law or, (B) notwithstanding [section 1396o](/usc/42/1396o.md) of this title at [State](#w-7-D) option, an amount paid by such [family](/usc/42/290ff–4.md?p=d-2), at the [family](/usc/42/290ff–4.md?p=d-2)’s option, to the [State](#w-7-D), provided that the amount, when combined with costs incurred in prior months, is sufficient when excluded from the [family](/usc/42/290ff–4.md?p=d-2)’s [income](/usc/42/292s.md?p=c-4) to reduce such [family](/usc/42/290ff–4.md?p=d-2)’s [income](/usc/42/292s.md?p=c-4) below the applicable [income](/usc/42/292s.md?p=c-4) limitation described in [paragraph (1)](#f-1). The amount of [State](#w-7-D) expenditures for which medical assistance is available under [subsection (a)(1)](#a-1) will be reduced by amounts paid to the [State](#w-7-D) pursuant to this subparagraph.
  - (3) For purposes of [paragraph (1)(B)](#f-1-B), in the case of a [family](/usc/42/290ff–4.md?p=d-2) consisting of only one individual, the “highest amount which would ordinarily be paid” to such [family](/usc/42/290ff–4.md?p=d-2) under the [State](#w-7-D)’s plan approved under part A of subchapter IV of this chapter shall be the amount determined by the [State agency](/usc/42/1320a–7a.md?p=i-1) (on the basis of reasonable relationship to the amounts payable under such plan to [families](/usc/42/12704.md?p=11) consisting of two or more [persons](/usc/42/1301.md?p=a-3)) to be the amount of the aid which would ordinarily be payable under such plan to a [family](/usc/42/290ff–4.md?p=d-2) (without any [income](/usc/42/292s.md?p=c-4) or resources) consisting of one [person](/usc/42/1301.md?p=a-3) if such plan provided for aid to such a [family](/usc/42/290ff–4.md?p=d-2).
  - (4) The limitations on payment imposed by the preceding provisions of this subsection shall not apply with respect to any amount expended by a [State](#w-7-D) as medical assistance for any individual described in section 1396a(a)(10)(A)(i)(III), 1396a(a)(10)(A)(i)(IV), 1396a(a)(10)(A)(i)(V), 1396a(a)(10)(A)(i)(VI), 1396a(a)(10)(A)(i)(VII), 1396a(a)(10)(A)(i)(VIII), 1396a(a)(10)(A)(i)(IX), 1396a(a)(10)(A)(ii)(IX), 1396a(a)(10)(A)(ii)(X), 1396a(a)(10)(A)(ii)(XIII), 1396a(a)(10)(A)(ii)(XIV), or[^5] 1396a(a)(10)(A)(ii)(XV), 1396a(a)(10)(A)(ii)(XVI), 1396a(a)(10)(A)(ii)(XVII), 1396a(a)(10)(A)(ii)(XVIII), 1396a(a)(10)(A)(ii)(XIX), 1396a(a)(10)(A)(ii)(XX), 1396a(a)(10)(A)(ii)(XXI), 1396a(a)(10)(A)(ii)(XXII), 1396d(p)(1) of this title or for any individual—
    - (A) who is receiving aid or assistance under any plan of the [State](#w-7-D) approved under subchapter I, X, XIV or XVI, or part A of subchapter IV, or with respect to whom [supplemental security income benefits](/usc/42/1382i.md?p=b-2) are being paid under subchapter XVI, or
    - (B) who is not receiving such aid or assistance, and with respect to whom such benefits are not being paid, but (i) is eligible to receive such aid or assistance, or to have such benefits paid with respect to him, or (ii) would be eligible to receive such aid or assistance, or to have such benefits paid with respect to him if he were not in a medical institution, or
    - (C) with respect to whom there is being paid, or who is eligible, or would be eligible if he were not in a medical institution, to have paid with respect to him, a [State supplementary payment](/usc/42/1396d.md?p=j) and is eligible for medical assistance equal in amount, duration, and scope to the medical assistance made available to individuals described in [section 1396a(a)(10)(A) of this title](/usc/42/1396a.md?p=a-10-A), or who is a PACE [program](/usc/42/274l–1.md?p=4) [eligible individual](/usc/42/239.md?p=a-6) enrolled in a PACE [program](/usc/42/274l–1.md?p=4) under [section 1396u–4 of this title](/usc/42/1396u–4.md), but only if the [income](/usc/42/292s.md?p=c-4) of such individual (as determined under [section 1382a of this title](/usc/42/1382a.md), but without regard to [subsection (b)](#b) thereof) does not exceed 300 percent of the supplemental security [income](/usc/42/292s.md?p=c-4) benefit rate established by [section 1382(b)(1) of this title](/usc/42/1382.md?p=b-1),

    at the time of the provision of the medical assistance giving rise to such expenditure.

- (g) **Decrease in Federal medical assistance percentage of amounts paid for services furnished under State plan after June 30, 1973—**
  - (1) Subject to [paragraph (3)](#g-3), with respect to amounts paid for the following services furnished under the [State](#w-7-D) plan after June 30, 1973 (other than services furnished pursuant to a contract with a health maintenance organization as defined in [section 1395mm of this title](/usc/42/1395mm.md) or which is a qualified health maintenance organization (as defined in [section 300e–9(d)](/usc/42/300e–9.md?p=d)[^4] of this title)), the Federal medical assistance percentage shall be decreased as follows: After an individual has received inpatient [hospital](/usc/42/1395dd.md?p=e-5) services or services in an [intermediate care facility for the mentally retarded](/usc/42/1396d.md?p=d) for 60 days or inpatient mental [hospital](/usc/42/1395dd.md?p=e-5) services for 90 days (whether or not such days are consecutive), during any fiscal year, the Federal medical assistance percentage with respect to amounts paid for any such care furnished thereafter to such individual shall be decreased by a per centum thereof (determined under [paragraph (5)](#g-5)) unless the [State agency](/usc/42/1320a–7a.md?p=i-1) responsible for the [administration](/usc/42/1301.md?p=a-10) of the plan makes a showing satisfactory to the [Secretary](/usc/42/1301.md?p=a-6) that, with respect to each calendar quarter for which the [State](#w-7-D) submits a request for payment at the full Federal medical assistance percentage for amounts paid for inpatient [hospital](/usc/42/1395dd.md?p=e-5) services or services in an [intermediate care facility for the mentally retarded](/usc/42/1396d.md?p=d) furnished beyond 60 days (or inpatient mental [hospital](/usc/42/1395dd.md?p=e-5) services furnished beyond 90 days), such [State](#w-7-D) has an effective [program](/usc/42/274l–1.md?p=4) of medical review of the care of patients in mental [hospitals](/usc/42/1395dd.md?p=e-5) and intermediate care [facilities](/usc/42/11049.md?p=4) for the mentally retarded pursuant to paragraphs (26) and (31) of [section 1396a(a) of this title](/usc/42/1396a.md?p=a) whereby the professional management of each case is reviewed and evaluated at least annually by independent professional review teams. In determining the number of days on which an individual has received services described in this subsection, there shall not be counted any days with respect to which such individual is entitled to have payments made (in whole or in part) on his behalf under [section 1395d of this title](/usc/42/1395d.md).
  - (2) The [Secretary](/usc/42/1301.md?p=a-6) shall, as part of his validation procedures under this subsection, conduct timely sample onsite surveys of private and public institutions in which [recipients](/usc/42/2996a.md?p=6) of medical assistance may receive care and services under a [State](#w-7-D) plan approved under this subchapter, and his findings with respect to such surveys (as well as the showings of the [State agency](/usc/42/1320a–7a.md?p=i-1) required under this subsection) shall be made available for public [inspection](/usc/42/4851b.md?p=12).
  - (3)
    - (A) No reduction in the Federal medical assistance percentage of a [State](#w-7-D) otherwise required to be imposed under this subsection shall take effect—
      - (i) if such reduction is due to the [State](#w-7-D)’s unsatisfactory or invalid showing made with respect to a calendar quarter beginning before January 1, 1977;
      - (ii) before January 1, 1978;
      - (iii) unless a notice of such reduction has been provided to the [State](#w-7-D) at least 30 days before the date such reduction takes effect; or
      - (iv) due to the [State](#w-7-D)’s unsatisfactory or invalid showing made with respect to a calendar quarter beginning after September 30, 1977, unless notice of such reduction has been provided to the [State](#w-7-D) no later than the first day of the fourth calendar quarter following the calendar quarter with respect to which such showing was made.
    - (B) The [Secretary](/usc/42/1301.md?p=a-6) shall waive application of any reduction in the Federal medical assistance percentage of a [State](#w-7-D) otherwise required to be imposed under [paragraph (1)](#g-1) because a showing by the [State](#w-7-D), made under such paragraph with respect to a calendar quarter ending after January 1, 1977, and before January 1, 1978, is determined to be either unsatisfactory under such paragraph or invalid under [paragraph (2)](#g-2), if the [Secretary](/usc/42/1301.md?p=a-6) determines that the [State](#w-7-D)’s showing made under [paragraph (1)](#g-1) with respect to any calendar quarter ending on or before December 31, 1978, is satisfactory under such paragraph and is valid under [paragraph (2)](#g-2).
  - (4)
    - (A) The [Secretary](/usc/42/1301.md?p=a-6) may not find the showing of a [State](#w-7-D), with respect to a calendar quarter under [paragraph (1)](#g-1), to be satisfactory if the showing is submitted to the [Secretary](/usc/42/1301.md?p=a-6) later than the 30th day after the last day of the calendar quarter, unless the [State](#w-7-D) demonstrates to the satisfaction of the [Secretary](/usc/42/1301.md?p=a-6) good [cause](/usc/42/9908.md?p=c-2) for not meeting such deadline.
    - (B) The [Secretary](/usc/42/1301.md?p=a-6) shall find a showing of a [State](#w-7-D), with respect to a calendar quarter under [paragraph (1)](#g-1), to be satisfactory under such paragraph with respect to the requirement that the [State](#w-7-D) conduct annual onsite [inspections](/usc/42/4851b.md?p=12) in mental [hospitals](/usc/42/1395dd.md?p=e-5) and intermediate care [facilities](/usc/42/11049.md?p=4) for the mentally retarded under paragraphs (26) and (31) of [section 1396a(a) of this title](/usc/42/1396a.md?p=a), if the showing demonstrates that the [State](#w-7-D) has conducted such an onsite [inspection](/usc/42/4851b.md?p=12) during the 12-month period ending on the last date of the calendar quarter—
      - (i) in each of not less than 98 per centum of the number of such [hospitals](/usc/42/1395dd.md?p=e-5) and [facilities](/usc/42/11049.md?p=4) requiring such [inspection](/usc/42/4851b.md?p=12), and
      - (ii) in every such [hospital](/usc/42/1395dd.md?p=e-5) or [facility](/usc/42/11049.md?p=4) which has 200 or more beds,

      and that, with respect to such [hospitals](/usc/42/1395dd.md?p=e-5) and [facilities](/usc/42/11049.md?p=4) not inspected within such period, the [State](#w-7-D) has exercised good faith and due diligence in attempting to conduct such [inspection](/usc/42/4851b.md?p=12), or if the [State](#w-7-D) demonstrates to the satisfaction of the [Secretary](/usc/42/1301.md?p=a-6) that it would have made such a showing but for failings of a technical nature only.

  - (5) In the case of a [State](#w-7-D)’s unsatisfactory or invalid showing made with respect to a type of [facility](/usc/42/11049.md?p=4) or institutional services in a calendar quarter, the per centum amount of the reduction of the [State](#w-7-D)’s Federal medical assistance percentage for that type of services under [paragraph (1)](#g-1) is equal to 33⅓ per centum multiplied by a fraction, the denominator of which is equal to the total number of patients receiving that type of services in that quarter under the [State](#w-7-D) plan in [facilities](/usc/42/11049.md?p=4) or institutions for which a showing was required to be made under this subsection, and the numerator of which is equal to the number of such patients receiving such type of services in that quarter in those [facilities](/usc/42/11049.md?p=4) or institutions for which a satisfactory and valid showing was not made for that calendar quarter.
  - (6)
    - (A) Recertifications required under [section 1396a(a)(44) of this title](/usc/42/1396a.md?p=a-44) shall be conducted at least every 60 days in the case of inpatient [hospital](/usc/42/1395dd.md?p=e-5) services.
    - (B) Such recertifications in the case of services in an [intermediate care facility for the mentally retarded](/usc/42/1396d.md?p=d) shall be conducted at least—
      - (i) 60 days after the date of the initial certification,
      - (ii) 180 days after the date of the initial certification,
      - (iii) 12 months after the date of the initial certification,
      - (iv) 18 months after the date of the initial certification,
      - (v) 24 months after the date of the initial certification, and
      - (vi) every 12 months thereafter.
    - (C) For purposes of determining compliance with the schedule established by this paragraph, a recertification shall be considered to have been done on a timely basis if it was performed not later than 10 days after the date the recertification was otherwise required and the [State](#w-7-D) establishes good [cause](/usc/42/9908.md?p=c-2) why the [physician](/usc/42/1301.md?p=a-7) or other [person](/usc/42/1301.md?p=a-3) making such recertification did not meet such schedule.
- (h) **Repealed. Pub. L. 100–203, title IV, § 4211(g)(1), Dec. 22, 1987, 101 Stat. 1330–205—**
- (i) **Payment for organ transplants; item or service furnished by excluded individual, entity, or physician; other restrictions—** Payment under the preceding provisions of this section shall not be made—
  - (1) for [organ](/usc/42/274b.md?p=d-2) transplant procedures unless the [State](#w-7-D) plan provides for written [standards](/usc/42/1320d.md?p=7) respecting the coverage of such procedures and unless such [standards](/usc/42/1320d.md?p=7) provide that—
    - (A) similarly situated individuals are treated alike; and
    - (B) any restriction, on the [facilities](/usc/42/11049.md?p=4) or [practitioners](/usc/42/1395a.md?p=b-6-C) which may provide such procedures, is consistent with the accessibility of high quality care to individuals eligible for the procedures under the [State](#w-7-D) plan; or
  - (2) with respect to any amount expended for an item or service (other than an emergency item or service, not [including](/usc/42/1301.md?p=b) items or services furnished in an emergency room of a [hospital](/usc/42/1395dd.md?p=e-5)) furnished—
    - (A) under the plan by any individual or entity during any period when the individual or entity is excluded from participation under subchapter V, XVIII, or XX or under this subchapter pursuant to section [1320a–7](/usc/42/1320a–7.md), [1320a–7a](/usc/42/1320a–7a.md), [1320c–5](/usc/42/1320c–5.md), or [1395u(j)(2)](/usc/42/1395u.md?p=j-2) of this title;
    - (B) at the medical direction or on the prescription of a [physician](/usc/42/1301.md?p=a-7), during the period when such [physician](/usc/42/1301.md?p=a-7) is excluded from participation under subchapter V, XVIII, or XX or under this subchapter pursuant to section [1320a–7](/usc/42/1320a–7.md), [1320a–7a](/usc/42/1320a–7a.md), [1320c–5](/usc/42/1320c–5.md), or [1395u(j)(2)](/usc/42/1395u.md?p=j-2) of this title and when the [person](/usc/42/1301.md?p=a-3) furnishing such item or service knew or had reason to know of the exclusion (after a reasonable time period after reasonable notice has been furnished to the [person](/usc/42/1301.md?p=a-3));
    - (C) by any individual or entity to whom the [State](#w-7-D) has failed to suspend payments under the plan during any period when there is pending an investigation of a credible allegation of fraud against the individual or entity, as determined by the [State](#w-7-D) in accordance with regulations promulgated by the [Secretary](/usc/42/1301.md?p=a-6) for purposes of [section 1395y(o)](/usc/42/1395y.md?p=o) of this title and this subparagraph, unless the [State](#w-7-D) determines in accordance with such regulations there is good [cause](/usc/42/9908.md?p=c-2) not to suspend such payments;
    - (D) beginning on July 1, 2018, under the plan by any [provider of services](/usc/42/1395n.md?p=a-2) or [person](/usc/42/1301.md?p=a-3) whose participation in the [State](#w-7-D) plan is terminated (as described in [section 1396a(kk)(8) of this title](/usc/42/1396a.md?p=kk-8)) after the date that is 60 days after the date on which such termination is included in the database or other system under [section 1396a(ll)](/usc/42/1396a.md?p=ll) of this title; or
    - (E) with respect to any amount expended for such an item or service furnished during calendar quarters beginning on or after October 1, 2017, subject to [section 1396a(kk)(4)(A)(ii)(II) of this title](/usc/42/1396a.md?p=kk-4-A-ii-II), within a [geographic area](/usc/42/11360.md?p=9) that is subject to a moratorium imposed under [section 1395cc(j)(7) of this title](/usc/42/1395cc.md?p=j-7) by a provider or [supplier](/usc/42/1395cc–4.md?p=a-2-I) that meets the requirements specified in [subparagraph (C)(iii)](/usc/42/1395cc.md?p=j-7-C-iii) of such section, during the period of such moratorium; or
  - (3) with respect to any amount expended for inpatient [hospital](/usc/42/1395dd.md?p=e-5) services furnished under the plan (other than amounts attributable to the special situation of a [hospital](/usc/42/1395dd.md?p=e-5) which serves a disproportionate number of [low income](/usc/42/701.md?p=b-2) patients with special needs) to the extent that such amount exceeds the [hospital](/usc/42/1395dd.md?p=e-5)’s customary charges with respect to such services or (if such services are furnished under the plan by a public institution free of charge or at nominal charges to the public) exceeds an amount determined on the basis of those items (specified in regulations prescribed by the [Secretary](/usc/42/1301.md?p=a-6)) included in the determination of such payment which the [Secretary](/usc/42/1301.md?p=a-6) finds will provide fair compensation to such institution for such services; or
  - (4) with respect to any amount expended for care or services furnished under the plan by a [hospital](/usc/42/1395dd.md?p=e-5) unless such [hospital](/usc/42/1395dd.md?p=e-5) has in effect a utilization review plan which meets the requirements imposed by [section 1395x(k) of this title](/usc/42/1395x.md?p=k) for purposes of subchapter XVIII; and if such [hospital](/usc/42/1395dd.md?p=e-5) has in effect such a utilization review plan for purposes of subchapter XVIII, such plan shall serve as the plan required by this subsection (with the same [standards](/usc/42/1320d.md?p=7) and procedures and the same review committee or group) as a condition of payment under this subchapter; the [Secretary](/usc/42/1301.md?p=a-6) is authorized to waive the requirements of this paragraph if the [State agency](/usc/42/1320a–7a.md?p=i-1) demonstrates to his satisfaction that it has in operation utilization review procedures which are superior in their effectiveness to the procedures required under [section 1395x(k) of this title](/usc/42/1395x.md?p=k); or
  - (5) with respect to any amount expended for any [drug](/usc/42/282.md?p=j-1-A-vii) product for which payment may not be made under part B of subchapter XVIII because of [section 1395y(c) of this title](/usc/42/1395y.md?p=c); or
  - (6) with respect to any amount expended for inpatient [hospital](/usc/42/1395dd.md?p=e-5) tests (other than in emergency situations) not specifically ordered by the attending [physician](/usc/42/1301.md?p=a-7) or other responsible [practitioner](/usc/42/1395a.md?p=b-6-C); or
  - (7) with respect to any amount expended for clinical diagnostic [laboratory](/usc/42/300jj.md?p=10) tests performed by a [physician](/usc/42/1301.md?p=a-7), independent [laboratory](/usc/42/300jj.md?p=10), or [hospital](/usc/42/1395dd.md?p=e-5), to the extent such amount exceeds the amount that would be recognized under [section 1395l(h)](/usc/42/1395l.md?p=h) of this title for such tests performed for an individual enrolled under part B of subchapter XVIII; or
  - (8) with respect to any amount expended for medical assistance (A) for [nursing facility services](/usc/42/1396d.md?p=f) to reimburse (or otherwise compensate) a [nursing facility](/usc/42/1396r.md?p=a) for payment of a civil money penalty imposed under [section 1396r(h) of this title](/usc/42/1396r.md?p=h) or (B) for [home and community care](/usc/42/1396t.md?p=a) to reimburse (or otherwise compensate) a provider of such care for payment of a civil money penalty imposed under this subchapter or subchapter XI or for legal expenses in defense of an exclusion or civil money penalty under this subchapter or subchapter XI if there is no reasonable legal ground for the provider’s case; or
  - (9) with respect to any amount expended for non-emergency transportation authorized under [section 1396a(a)(4) of this title](/usc/42/1396a.md?p=a-4), unless the [State](#w-7-D) plan provides for the methods and procedures required under [section 1396a(a)(30)(A) of this title](/usc/42/1396a.md?p=a-30-A); or
  - (10)
    - (A) with respect to [covered outpatient drugs](/usc/42/1396r–8.md?p=k-3) unless there is a rebate [agreement](/usc/42/1320b–8.md?p=a-3-A) in effect under [section 1396r–8 of this title](/usc/42/1396r–8.md) with respect to such [drugs](/usc/42/282.md?p=j-1-A-vii) or unless [section 1396r–8(a)(3) of this title](/usc/42/1396r–8.md?p=a-3) applies,[^3]
    - (B) with respect to any amount expended for an [innovator multiple source drug](/usc/42/1395l.md?p=t-14-F-ii) (as defined in [section 1396r–8(k) of this title](/usc/42/1396r–8.md?p=k)) dispensed on or after July 1, 1991, if, under applicable [State](#w-7-D) law, a less expensive multiple source [drug](/usc/42/282.md?p=j-1-A-vii) could have been dispensed, but only to the extent that such amount exceeds the upper payment limit for such multiple source [drug](/usc/42/282.md?p=j-1-A-vii);
    - (C) with respect to [covered outpatient drugs](/usc/42/1396r–8.md?p=k-3) described in [section 1396r–8(a)(7) of this title](/usc/42/1396r–8.md?p=a-7), unless information respecting utilization data and coding on such [drugs](/usc/42/282.md?p=j-1-A-vii) that is required to be submitted under such section is submitted in accordance with such section;
    - (D) with respect to any amount expended for reimbursement to a pharmacy under this subchapter for the ingredient cost of a [covered outpatient drug](/usc/42/1396r–8.md?p=k-3) for which the pharmacy has already received payment under this subchapter (other than with respect to a reasonable restocking fee for such [drug](/usc/42/282.md?p=j-1-A-vii)); and
    - (E) with respect to any amount expended for a [covered outpatient drug](/usc/42/1396r–8.md?p=k-3) for which a suspension under [section 1396r–8(c)(4)(B)(ii)(II) of this title](/usc/42/1396r–8.md?p=c-4-B-ii-II) is in effect; or
  - (11) with respect to any amount expended for [physicians](/usc/42/1396d.md?p=e)’ services furnished on or after the first day of the first quarter beginning more than 60 days after the date of establishment of the [physician](/usc/42/1301.md?p=a-7) identifier system under [section 1396a(x) of this title](/usc/42/1396a.md?p=x), unless the [claim](/usc/42/1320a–7a.md?p=i-2) for the services [includes](/usc/42/1301.md?p=b) the unique [physician](/usc/42/1301.md?p=a-7) identifier provided under such system; or
  - (12) with respect to any amounts expended for—
    - (A) a vacuum erection system that is not medically necessary; or
    - (B) the insertion, repair, or [removal](/usc/42/9601.md?p=23) and replacement of a penile prosthetic implant (unless such insertion, repair, or [removal](/usc/42/9601.md?p=23) and replacement is medically necessary); or
  - (13) with respect to any amount expended to reimburse (or otherwise compensate) a [nursing facility](/usc/42/1396r.md?p=a) for payment of legal expenses associated with any action initiated by the [facility](/usc/42/11049.md?p=4) that is dismissed on the basis that no reasonable legal ground existed for the institution of such action; or
  - (14) with respect to any amount expended on administrative costs to carry out the [program](/usc/42/274l–1.md?p=4) under [section 1396s of this title](/usc/42/1396s.md); or
  - (15) with respect to any amount expended for a [single](/usc/42/2304.md?p=m)-antigen vaccine and its [administration](/usc/42/1301.md?p=a-10) in any case in which the [administration](/usc/42/1301.md?p=a-10) of a combined-antigen vaccine was medically appropriate (as determined by the [Secretary](/usc/42/1301.md?p=a-6)); or
  - (16) with respect to any amount expended for which [funds](/usc/42/12854.md?p=3) may not be used under the Assisted Suicide Funding Restriction Act of 1997 [[42 U.S.C. 14401](/usc/42/14401.md) et seq.]; or
  - (17) with respect to any amount expended for roads, bridges, stadiums, or any other item or service not covered under a [State](#w-7-D) plan under this subchapter; or
  - (18) with respect to any amount expended for [home health care services](#l-5-B) provided by an [agency](/usc/42/1397n–12.md?p=1) or organization unless the [agency](/usc/42/1397n–12.md?p=1) or organization provides the [State agency](/usc/42/1320a–7a.md?p=i-1) on a continuing basis a surety bond in a form specified by the [Secretary](/usc/42/1301.md?p=a-6) under [paragraph (7)](/usc/42/1395x.md?p=o-7) of section 1395x(o) of this title and in an amount that is not less than $50,000 or such comparable surety bond as the [Secretary](/usc/42/1301.md?p=a-6) may permit under the last sentence of such section; or
  - (19) with respect to any amount expended on administrative costs to initiate or pursue litigation described in [subsection (d)(3)(B)](#d-3-B);
  - (20) with respect to amounts expended for medical assistance provided to an individual described in subclause (XV) or (XVI) of [section 1396a(a)(10)(A)(ii) of this title](/usc/42/1396a.md?p=a-10-A-ii) for a fiscal year unless the [State](#w-7-D) demonstrates to the satisfaction of the [Secretary](/usc/42/1301.md?p=a-6) that the level of [State](#w-7-D) [funds](/usc/42/12854.md?p=3) expended for such fiscal year for [programs](/usc/42/274l–1.md?p=4) to enable working individuals with disabilities to work (other than for such medical assistance) is not less than the level expended for such [programs](/usc/42/274l–1.md?p=4) during the most recent [State](#w-7-D) fiscal year ending before December 17, 1999;
  - (21) with respect to amounts expended for [covered outpatient drugs](/usc/42/1396r–8.md?p=k-3) described in [section 1396r–8(d)(2)(C) of this title](/usc/42/1396r–8.md?p=d-2-C) (relating to [drugs](/usc/42/282.md?p=j-1-A-vii) when used for cosmetic purposes or hair growth), except where medically necessary, and [section 1396r–8(d)(2)(K) of this title](/usc/42/1396r–8.md) (relating to [drugs](/usc/42/282.md?p=j-1-A-vii) when used for [treatment](/usc/42/11851.md?p=11) of sexual or erectile dysfunction);
  - (22) with respect to amounts expended for medical assistance for an individual who declares under [section 1320b–7(d)(1)(A) of this title](/usc/42/1320b–7.md?p=d-1-A) to be a citizen or national of the [United States](/usc/42/1301.md?p=a-2) for purposes of establishing eligibility for benefits under this subchapter, unless the requirement of [section 1396a(a)(46)(B) of this title](/usc/42/1396a.md?p=a-46-B) is met;
  - (23) with respect to amounts expended for medical assistance for [covered outpatient drugs](/usc/42/1396r–8.md?p=k-3) (as defined in [section 1396r–8(k)(2) of this title](/usc/42/1396r–8.md?p=k-2)) for which the prescription was executed in written (and non-electronic) form unless the prescription was executed on a tamper-resistant pad;
  - (24) if a [State](#w-7-D) is required to implement an asset verification [program](/usc/42/274l–1.md?p=4) under [section 1396w of this title](/usc/42/1396w.md) and fails to implement such [program](/usc/42/274l–1.md?p=4) in accordance with such section, with respect to amounts expended by such [State](#w-7-D) for medical assistance for individuals subject to asset verification under such section, unless—
    - (A) the [State](#w-7-D) demonstrates to the [Secretary](/usc/42/1301.md?p=a-6)’s satisfaction that the [State](#w-7-D) made a good faith effort to comply;
    - (B) not later than 60 days after the date of a finding that the [State](#w-7-D) is in noncompliance, the [State](#w-7-D) submits to the [Secretary](/usc/42/1301.md?p=a-6) (and the [Secretary](/usc/42/1301.md?p=a-6) approves) a corrective action plan to remedy such noncompliance; and
    - (C) not later than 12 months after the date of such submission (and approval), the [State](#w-7-D) fulfills the terms of such corrective action plan;
  - (25) with respect to any amounts expended for medical assistance for individuals for whom the [State](#w-7-D) does not report enrollee encounter data (as defined by the [Secretary](/usc/42/1301.md?p=a-6)) to the [Medicaid](#w-3-E-iii-III-aa) Statistical Information System (MSIS) in a timely manner (as determined by the [Secretary](/usc/42/1301.md?p=a-6));
  - (26) with respect to any amounts expended for medical assistance for individuals described in subclause (VIII) of subsection (a)(10)(A)(i)[^6] other than medical assistance provided through benchmark coverage described in [section 1396u–7(b)(1) of this title](/usc/42/1396u–7.md?p=b-1) or benchmark equivalent coverage described in [section 1396u–7(b)(2) of this title](/usc/42/1396u–7.md?p=b-2); or
  - (27) with respect to any amounts expended by the [State](#w-7-D) on the basis of a fee schedule for items described in [section 1395x(n) of this title](/usc/42/1395x.md?p=n) and furnished on or after January 1, 2018, as determined in the aggregate with respect to each class of such items as defined by the [Secretary](/usc/42/1301.md?p=a-6), in excess of the aggregate amount, if any, that would be paid for such items within such class on a fee-for-service basis under the [program](/usc/42/274l–1.md?p=4) under part B of subchapter XVIII, [including](/usc/42/1301.md?p=b), as applicable, under a competitive acquisition [program](/usc/42/274l–1.md?p=4) under [section 1395w–3 of this title](/usc/42/1395w–3.md) in an area of the [State](#w-7-D).

  Nothing in [paragraph (1)](#i-1) shall be construed as permitting a [State](#w-7-D) to provide services under its plan under this subchapter that are not reasonable in amount, duration, and scope to achieve their purpose. Paragraphs [(1)](#i-1), [(2)](#i-2), [(16)](#i-16), [(17)](#i-17), and [(18)](#i-18) shall apply with respect to items or services furnished and amounts expended by or through a [managed care entity](#m-9-D-i) (as defined in [section 1396u–2(a)(1)(B) of this title](/usc/42/1396u–2.md?p=a-1-B)) in the same manner as such paragraphs apply to items or services furnished and amounts expended directly by the [State](#w-7-D).

- (j) **Adjustment of amount—** Notwithstanding the preceding provisions of this section, the amount determined under [subsection (a)(1)](#a-1) for any [State](#w-7-D) for any quarter shall be adjusted in accordance with [section 1396m of this title](/usc/42/1396m.md).
- (k) **Technical assistance to States—** The [Secretary](/usc/42/1301.md?p=a-6) is authorized to provide at the request of any [State](#w-7-D) (and without cost to such [State](#w-7-D)) such technical and actuarial assistance as may be necessary to assist such [State](#w-7-D) to contract with any [medicaid managed care organization](#m-1-A) which meets the requirements of [subsection (m)](#m) of this section for the purpose of providing [medical care](/usc/42/1301.md?p=a-7) and services to individuals who are entitled to medical assistance under this subchapter.
- (l) **Electronic visit verification system for personal care services and home health care services—**
  - (1) Subject to paragraphs [(3)](#l-3) and [(4)](#l-4), with respect to any amount expended for [personal care services](#l-5-C) or [home health care services](#l-5-B) requiring an in-home visit by a provider that are provided under a [State](#w-7-D) plan under this subchapter (or under a waiver of the plan) and furnished in a calendar quarter beginning on or after January 1, 2020 (or, in the case of [home health care services](#l-5-B), on or after January 1, 2023), unless a [State](#w-7-D) requires the use of an [electronic visit verification system](#l-5-A) for such services furnished in such quarter under the plan or such waiver, the Federal medical assistance percentage shall be reduced—
    - (A) in the case of [personal care services](#l-5-C)—
      - (i) for calendar quarters in 2020, by .25 percentage points;
      - (ii) for calendar quarters in 2021, by .5 percentage points;
      - (iii) for calendar quarters in 2022, by .75 percentage points; and
      - (iv) for calendar quarters in 2023 and each year thereafter, by 1 percentage point; and
    - (B) in the case of [home health care services](#l-5-B)—
      - (i) for calendar quarters in 2023 and 2024, by .25 percentage points;
      - (ii) for calendar quarters in 2025, by .5 percentage points;
      - (iii) for calendar quarters in 2026, by .75 percentage points; and
      - (iv) for calendar quarters in 2027 and each year thereafter, by 1 percentage point.
  - (2) Subject to paragraphs [(3)](#l-3) and [(4)](#l-4), in implementing the requirement for the use of an [electronic visit verification system](#l-5-A) under [paragraph (1)](#l-1), a [State](#w-7-D) shall—
    - (A) consult with [agencies](/usc/42/1397n–12.md?p=1) and entities that provide [personal care services](#l-5-C), [home health care services](#l-5-B), or both under the [State](#w-7-D) plan (or under a waiver of the plan) to ensure that such system—
      - (i) is minimally burdensome;
      - (ii) takes into account existing best [practices](/usc/42/17061.md?p=19) and [electronic visit verification systems](#l-5-A) in use in the [State](#w-7-D); and
      - (iii) is conducted in accordance with the requirements of HIPAA privacy and security law (as defined in [section 300jj–19 of this title](/usc/42/300jj–19.md));
    - (B) take into account a stakeholder process that [includes](/usc/42/1301.md?p=b) input from beneficiaries, [family](/usc/42/290ff–4.md?p=d-2) [caregivers](/usc/42/1397j.md?p=3), individuals who furnish [personal care services](#l-5-C) or [home health care services](#l-5-B), and other stakeholders, as determined by the [State](#w-7-D) in accordance with guidance from the [Secretary](/usc/42/1301.md?p=a-6); and
    - (C) ensure that individuals who furnish [personal care services](#l-5-C), [home health care services](#l-5-B), or both under the [State](#w-7-D) plan (or under a waiver of the plan) are provided the opportunity for [training](/usc/42/285e–2.md?p=b-2) on the use of such system.
  - (3) Paragraphs [(1)](#l-1) and [(2)](#l-2) shall not apply in the case of a [State](#w-7-D) that, as of December 13, 2016, requires the use of any system for the electronic verification of visits conducted as part of both [personal care services](#l-5-C) and [home health care services](#l-5-B), so long as the [State](#w-7-D) continues to require the use of such system with respect to the electronic verification of such visits.
  - (4)
    - (A) In the case of a [State](#w-7-D) described in [subparagraph (B)](#l-4-B), the reduction under [paragraph (1)](#l-1) shall not apply—
      - (i) in the case of [personal care services](#l-5-C), for calendar quarters in 2020; and
      - (ii) in the case of [home health care services](#l-5-B), for calendar quarters in 2023.
    - (B) For purposes of [subparagraph (A)](#l-4-A), a [State](#w-7-D) described in this subparagraph is a [State](#w-7-D) that demonstrates to the [Secretary](/usc/42/1301.md?p=a-6) that the [State](#w-7-D)—
      - (i) has made a good faith effort to comply with the requirements of paragraphs [(1)](#l-1) and [(2)](#l-2) ([including](/usc/42/1301.md?p=b) by taking steps to adopt the technology used for an [electronic visit verification system](#l-5-A)); and
      - (ii) in implementing such a system, has encountered unavoidable system delays.
  - (5) In this subsection:
    - (A) The term “electronic visit verification system” means, with respect to [personal care services](#l-5-C) or [home health care services](#l-5-B), a system under which visits conducted as part of such services are electronically verified with respect to—
      - (i) the type of service performed;
      - (ii) the individual receiving the service;
      - (iii) the date of the service;
      - (iv) the location of service delivery;
      - (v) the individual providing the service; and
      - (vi) the time the service begins and ends.
    - (B) The term “home health care services” means services described in [section 1396d(a)(7) of this title](/usc/42/1396d.md?p=a-7) provided under a [State](#w-7-D) plan under this subchapter (or under a waiver of the plan).
    - (C) The term “personal care services” means personal care services provided under a [State](#w-7-D) plan under this subchapter (or under a waiver of the plan), [including](/usc/42/1301.md?p=b) services provided under section [1396d(a)(24)](/usc/42/1396d.md?p=a-24), [1396n(c)](/usc/42/1396n.md?p=c), [1396n(i)](/usc/42/1396n.md?p=i), [1396n(j)](/usc/42/1396n.md?p=j), or [1396n(k)](/usc/42/1396n.md?p=k) of this title or under a wavier[^7] under [section 1315 of this title](/usc/42/1315.md).
  - (6)
    - (A) In the case in which a [State](#w-7-D) requires personal care service and home health care service providers to utilize an [electronic visit verification system](#l-5-A) operated by the [State](#w-7-D) or a contractor on behalf of the [State](#w-7-D), the [Secretary](/usc/42/1301.md?p=a-6) shall pay to the [State](#w-7-D), for each quarter, an amount equal to 90 per centum of so much of the sums expended during such quarter as are attributable to the design, development, or installation of such system, and 75 per centum of so much of the sums for the operation and maintenance of such system.
    - (B) [Subparagraph (A)](#l-6-A) shall not apply in the case in which a [State](#w-7-D) requires personal care service and home health care service providers to utilize an [electronic visit verification system](#l-5-A) that is not operated by the [State](#w-7-D) or a contractor on behalf of the [State](#w-7-D).
- (m) **“Medicaid managed care organization” defined; duties and functions of Secretary; payments to States; reporting requirements; remedies—**
  - (1)
    - (A) The term “medicaid managed care organization” means a health maintenance organization, an eligible organization with a [contract](#m-6-A) under [section 1395mm of this title](/usc/42/1395mm.md) or a Medicare+Choice organization with a [contract](#m-6-A) under part C of subchapter XVIII, a provider sponsored organization, or any other public or private organization, which meets the requirement of [section 1396a(w) of this title](/usc/42/1396a.md?p=w) and—
      - (i) makes services it provides to individuals eligible for benefits under this subchapter accessible to such individuals, within the area served by the organization, to the same extent as such services are made accessible to individuals (eligible for medical assistance under the [State](#w-7-D) plan) not enrolled with the organization, and
      - (ii) has made adequate provision against the risk of insolvency, which provision is satisfactory to the [State](#w-7-D), meets the requirements of [subparagraph (C)(i)](#m-1-C-i) (if applicable), and which assures that individuals eligible for benefits under this subchapter are in no case held liable for debts of the organization in case of the organization’s insolvency.

      An organization that is a qualified health maintenance organization (as defined in [section 300e–9(d)](/usc/42/300e–9.md?p=d)[^4] of this title) is deemed to meet the requirements of clauses [(i)](#m-1-A-i) and [(ii)](#m-1-A-ii).

    - (B) The duties and functions of the [Secretary](/usc/42/1301.md?p=a-6), insofar as they involve making determinations as to whether an organization is a [medicaid managed care organization](#m-1-A) within the meaning of [subparagraph (A)](#m-1-A), shall be integrated with the [administration](/usc/42/1301.md?p=a-10) of section [300e–11(a)](/usc/42/300e–11.md?p=a) and [(b)](/usc/42/300e–11.md?p=b) of this title.
    - (C)
      - (i) Subject to [clause (ii)](#m-1-C-ii), a provision meets the requirements of this subparagraph for an organization if the organization meets solvency [standards](/usc/42/1320d.md?p=7) established by the [State](#w-7-D) for private health maintenance organizations or is licensed or certified by the [State](#w-7-D) as a risk-bearing entity.
      - (ii) [Clause (i)](#m-1-C-i) shall not apply to an organization if—
        - (I) the organization is not responsible for the provision (directly or through arrangements with providers of services) of inpatient [hospital](/usc/42/1395dd.md?p=e-5) services and [physicians](/usc/42/1396d.md?p=e)’ services;
        - (II) the organization is a public entity;
        - (III) the solvency of the organization is guaranteed by the [State](#w-7-D); or
        - (IV) the organization is (or is controlled by) one or more [Federally-qualified health centers](/usc/42/1396d.md?p=l-2-B) and meets solvency [standards](/usc/42/1320d.md?p=7) established by the [State](#w-7-D) for such an organization.

        For purposes of [subclause (IV)](#m-1-C-ii-IV), the term “control” means the possession, whether direct or indirect, of the power to direct or [cause](/usc/42/9908.md?p=c-2) the direction of the management and policies of the organization through membership, [board](/usc/42/10261.md?p=2) representation, or an ownership interest equal to or greater than 50.1 percent.

  - (2)
    - (A) Except as provided in subparagraphs [(B)](#m-2-B), [(C)](#m-2-C), and [(G)](#m-2-G), no payment shall be made under this subchapter to a [State](#w-7-D) with respect to expenditures incurred by it for payment (determined under a prepaid capitation basis or under any other risk basis) for services provided by any entity ([including](/usc/42/1301.md?p=b) a health insuring organization) which is responsible for the provision (directly or through arrangements with providers of services) of inpatient [hospital](/usc/42/1395dd.md?p=e-5) services and any other service described in paragraph (2), (3), (4), (5), or (7) of [section 1396d(a) of this title](/usc/42/1396d.md?p=a) or for the provision of any three or more of the services described in such paragraphs unless—
      - (i) the [Secretary](/usc/42/1301.md?p=a-6) has determined that the entity is a [medicaid managed care organization](#m-1-A) as defined in [paragraph (1)](#m-1);
      - (ii) Repealed. Pub. L. 105–33, title IV, § 4703(a), Aug. 5, 1997, 111 Stat. 495.
      - (iii) such services are provided for the benefit of individuals eligible for benefits under this subchapter in accordance with a [contract](#m-6-A) between the [State](#w-7-D) and the entity under which prepaid payments to the entity are made on an actuarially sound basis and under which the [Secretary](/usc/42/1301.md?p=a-6) must provide prior approval for [contracts](#m-6-A) providing for expenditures in excess of $1,000,000 for 1998 and, for a subsequent year, the amount established under this clause for the previous year increased by the percentage increase in the consumer price index for all urban consumers over the previous year;
      - (iv) such [contract](#m-6-A) provides that the [Secretary](/usc/42/1301.md?p=a-6) and the [State](#w-7-D) (or any [person](/usc/42/1301.md?p=a-3) or organization designated by either) shall have the right to audit and inspect any books and rec­ords of the entity (and of any subcontractor) that pertain (I) to the ability of the entity to bear the risk of potential financial losses, or (II) to services performed or determinations of amounts payable under the [contract](#m-6-A);
      - (v) such [contract](#m-6-A) provides that in the entity’s enrollment, reenrollment, or disenrollment of individuals who are eligible for benefits under this subchapter and eligible to enroll, reenroll, or disenroll with the entity pursuant to the [contract](#m-6-A), the entity will not discriminate among such individuals on the basis of their health status or requirements for health care services;
      - (vi) such [contract](#m-6-A) (I) permits individuals who have elected under the plan to enroll with the entity for provision of such benefits to terminate such enrollment in accordance with [section 1396u–2(a)(4) of this title](/usc/42/1396u–2.md?p=a-4), and (II) provides for notification in accordance with such section of each such individual, at the time of the individual’s enrollment, of such right to terminate such enrollment;
      - (vii) such [contract](#m-6-A) provides that, in the case of medically necessary services which were provided (I) to an individual enrolled with the entity under the [contract](#m-6-A) and entitled to benefits with respect to such services under the [State](#w-7-D)’s plan and (II) other than through the organization because the services were immediately required due to an unforeseen illness, injury, or condition, either the entity or the [State](#w-7-D) provides for reimbursement with respect to those services,[^3]
      - (viii) such [contract](#m-6-A) provides for disclosure of information in accordance with [section 1320a–3 of this title](/usc/42/1320a–3.md) and paragraph (4) of this subsection;
      - (ix) such [contract](#m-6-A) provides, in the case of an entity that has entered into a [contract](#m-6-A) for the provision of services with a [Federally-qualified health center](/usc/42/1396d.md?p=l-2-B) or a [rural health clinic](/usc/42/254c.md?p=b-2), that the entity shall provide payment that is not less than the level and amount of payment which the entity would make for the services if the services were furnished by a provider which is not a [Federally-qualified health center](/usc/42/1396d.md?p=l-2-B) or a [rural health clinic](/usc/42/254c.md?p=b-2);
      - (x) any [physician](/usc/42/1301.md?p=a-7) incentive plan that it operates meets the requirements described in [section 1395mm(i)(8) of this title](/usc/42/1395mm.md?p=i-8);
      - (xi) such [contract](#m-6-A) provides for maintenance of sufficient patient encounter data to identify the [physician](/usc/42/1301.md?p=a-7) who delivers services to patients and for the provision of such data to the [State](#w-7-D) at a frequency and level of detail to be specified by the [Secretary](/usc/42/1301.md?p=a-6);
      - (xii) such [contract](#m-6-A), and the entity complies with the applicable requirements of [section 1396u–2 of this title](/usc/42/1396u–2.md); and
      - (xiii) such [contract](#m-6-A) provides that (I) [covered outpatient drugs](/usc/42/1396r–8.md?p=k-3) dispensed to individuals eligible for medical assistance who are enrolled with the entity shall be subject to the same rebate required by the [agreement](/usc/42/1320b–8.md?p=a-3-A) entered into under [section 1396r–8 of this title](/usc/42/1396r–8.md) as the [State](#w-7-D) is subject to and that the [State](#w-7-D) shall collect such rebates from [manufacturers](/usc/42/300aa–33.md?p=3), (II) capitation rates paid to the entity shall be based on actual cost experience related to rebates and subject to the Federal regulations requiring actuarially sound rates, and (III) the entity shall report to the [State](#w-7-D), on such timely and periodic basis as specified by the [Secretary](/usc/42/1301.md?p=a-6) in order to include in the information submitted by the [State](#w-7-D) to a [manufacturer](/usc/42/300aa–33.md?p=3) and the [Secretary](/usc/42/1301.md?p=a-6) under [section 1396r–8(b)(2)(A) of this title](/usc/42/1396r–8.md?p=b-2-A), information on the total number of [units](/usc/42/1395w–114b.md?p=g-2) of each dosage form and strength and package size by National Drug Code of each [covered outpatient drug](/usc/42/1396r–8.md?p=k-3) dispensed to individuals eligible for medical assistance who are enrolled with the entity and for which the entity is responsible for coverage of such [drug](/usc/42/282.md?p=j-1-A-vii) under this subsection (other than [covered outpatient drugs](/usc/42/1396r–8.md?p=k-3) that under subsection (j)(1) of [section 1396r–8 of this title](/usc/42/1396r–8.md) are not subject to the requirements of that section) and such other data as the [Secretary](/usc/42/1301.md?p=a-6) determines necessary to carry out this subsection.
    - (B) [Subparagraph (A)](#m-2-A)[^8] except with respect to [clause (ix)](#m-2-A-ix) of subparagraph (A), does not apply with respect to payments under this subchapter to a [State](#w-7-D) with respect to expenditures incurred by it for payment for services provided by an entity which—
      - (i)
        - (I) received a [grant](/usc/42/1397j.md?p=10) of at least $100,000 in the fiscal year ending June 30, 1976, under section [254b(d)(1)(A)](/usc/42/254b.md?p=d-1-A) or [254c(d)(1)](/usc/42/254c.md?p=d-1) of this title,[^4] and for the period beginning July 1, 1976, and ending on the expiration of the period for which payments are to be made under this subchapter has been the [recipient](/usc/42/2996a.md?p=6) of a [grant](/usc/42/1397j.md?p=10) under either such section; and
        - (II) provides to its enrollees, on a prepaid capitation risk basis or on any other risk basis, all of the services and benefits described in paragraphs (1), (2), (3), (4)(C), and (5) of [section 1396d(a) of this title](/usc/42/1396d.md?p=a) and, to the extent required by [section 1396a(a)(10)(D) of this title](/usc/42/1396a.md?p=a-10-D) to be provided under a [State](#w-7-D) plan for medical assistance, the services and benefits described in paragraph (7) of [section 1396d(a) of this title](/usc/42/1396d.md?p=a); or
      - (ii) is a nonprofit primary health care entity located in a rural area (as defined by the Appalachian Regional [Commission](/usc/42/2000ff.md?p=1))—
        - (I) which received in the fiscal year ending June 30, 1976, at least $100,000 (by [grant](/usc/42/1397j.md?p=10), subgrant, or subcontract) under the Appalachian Regional Development Act of 1965,[^4] and
        - (II) for the period beginning July 1, 1976, and ending on the expiration of the period for which payments are to be made under this subchapter either has been the [recipient](/usc/42/2996a.md?p=6) of a [grant](/usc/42/1397j.md?p=10), subgrant, or subcontract under such Act or has provided services under a [contract](#m-6-A) (initially entered into during a year in which the entity was the [recipient](/usc/42/2996a.md?p=6) of such a [grant](/usc/42/1397j.md?p=10), subgrant, or subcontract) with a [State agency](/usc/42/1320a–7a.md?p=i-1) under this subchapter on a prepaid capitation risk basis or on any other risk basis; or
      - (iii) which has contracted with the [single](/usc/42/2304.md?p=m) [State agency](/usc/42/1320a–7a.md?p=i-1) for the provision of services (but not [including](/usc/42/1301.md?p=b) inpatient [hospital](/usc/42/1395dd.md?p=e-5) services) to [persons](/usc/42/1301.md?p=a-3) eligible under this subchapter on a prepaid risk basis prior to 1970.
    - (C) to (E) Repealed. Pub. L. 105–33, title IV, § 4703(b)(1)(A), Aug. 5, 1997, 111 Stat. 495.
    - (F) Repealed. Pub. L. 105–33, title IV, § 4701(d)(2)(B), Aug. 5, 1997, 111 Stat. 494.
    - (G) In the case of an entity which is receiving (and has received during the previous two years) a [grant](/usc/42/1397j.md?p=10) of at least $100,000 under section [254b(d)(1)(A)](/usc/42/254b.md?p=d-1-A) or [254c(d)(1)](/usc/42/254c.md?p=d-1) of this title[^4] or is receiving (and has received during the previous two years) at least $100,000 (by [grant](/usc/42/1397j.md?p=10), subgrant, or subcontract) under the Appalachian Regional Development Act of 1965,[^4] [clause (i)](#m-2-A-i) of subparagraph (A) shall not apply.
    - (H) In the case of an individual who—
      - (i) in a month is eligible for benefits under this subchapter and enrolled with a [medicaid managed care organization](#m-1-A) with a [contract](#m-6-A) under this paragraph or with a [primary care case manager](/usc/42/1396d.md?p=t-2) with a [contract](#m-6-A) described in [section 1396d(t)(3) of this title](/usc/42/1396d.md?p=t-3),
      - (ii) in the next month (or in the next 2 months) is not eligible for such benefits, but
      - (iii) in the succeeding month is again eligible for such benefits,

      the [State](#w-7-D) plan, subject to [subparagraph (A)(vi)](#m-2-A-vi), may enroll the individual for that succeeding month with the organization described in [clause (i)](#m-2-H-i) if the organization continues to have a [contract](#m-6-A) under this paragraph with the [State](#w-7-D) or with the manager described in such clause if the manager continues to have a [contract](#m-6-A) described in [section 1396d(t)(3) of this title](/usc/42/1396d.md?p=t-3) with the [State](#w-7-D).

  - (3) No payment shall be made under this subchapter to a [State](#w-7-D) with respect to expenditures incurred by the [State](#w-7-D) for payment for services provided by a [managed care entity](#m-9-D-i) (as defined under [section 1396u–2(a)(1) of this title](/usc/42/1396u–2.md?p=a-1)) under the [State](#w-7-D) plan under this subchapter (or under a waiver of the plan) unless the [State](#w-7-D)—
    - (A) beginning on July 1, 2018, has a [contract](#m-6-A) with such entity that complies with the requirement specified in [section 1396u–2(d)(5) of this title](/usc/42/1396u–2.md?p=d-5); and
    - (B) beginning on January 1, 2018, complies with the requirement specified in [section 1396u–2(d)(6)(A) of this title](/usc/42/1396u–2.md?p=d-6-A).
  - (4)
    - (A) Each [medicaid managed care organization](#m-1-A) which is not a qualified health maintenance organization (as defined in [section 300e–9(d)](/usc/42/300e–9.md?p=d)[^4] of this title) must report to the [State](#w-7-D) and, upon request, to the [Secretary](/usc/42/1301.md?p=a-6), the Inspector General of the Department of Health and Human Services, and the Comptroller General a description of transactions between the organization and a party in interest (as defined in [section 300e–17(b) of this title](/usc/42/300e–17.md?p=b)), [including](/usc/42/1301.md?p=b) the following transactions:
      - (i) Any sale or [exchange](/usc/42/300gg–91.md?p=d-21), or leasing of any property between the organization and such a party.
      - (ii) Any furnishing for consideration of goods, services ([including](/usc/42/1301.md?p=b) management services), or [facilities](/usc/42/11049.md?p=4) between the organization and such a party, but not [including](/usc/42/1301.md?p=b) salaries paid to [employees](/usc/42/1320a–7h.md?p=e-7) for services provided in the normal course of their employment.
      - (iii) Any lending of money or other extension of credit between the organization and such a party.

      The [State](#w-7-D) or [Secretary](/usc/42/1301.md?p=a-6) may require that information reported respecting an organization which [controls](#m-1-C-ii), or is controlled by, or is under common [control](#m-1-C-ii) with, another entity be in the form of a consolidated financial statement for the organization and such entity.

    - (B) Each organization shall make the information reported pursuant to [subparagraph (A)](#m-4-A) available to its enrollees upon reasonable request.
  - (5)
    - (A) If the [Secretary](/usc/42/1301.md?p=a-6) determines that an entity with a [contract](#m-6-A) under this subsection—
      - (i) fails substantially to provide medically necessary items and services that are required (under law or under the [contract](#m-6-A)) to be provided to an individual covered under the [contract](#m-6-A), if the failure has adversely affected (or has substantial likelihood of adversely affecting) the individual;
      - (ii) imposes premiums on individuals enrolled under this subsection in excess of the premiums permitted under this subchapter;
      - (iii) acts to discriminate among individuals in [violation](/usc/42/2000e–16a.md?p=c) of the provision of [paragraph (2)(A)(v)](#m-2-A-v), [including](/usc/42/1301.md?p=b) expulsion or refusal to re-enroll an individual or engaging in any practice that would reasonably be expected to have the effect of denying or discouraging enrollment (except as permitted by this subsection) by [eligible individuals](/usc/42/239.md?p=a-6) with the organization whose medical condition or history indicates a need for substantial future medical services;
      - (iv) misrepresents or falsifies information that is furnished—
        - (I) to the [Secretary](/usc/42/1301.md?p=a-6) or the [State](#w-7-D) under this subsection, or
        - (II) to an individual or to any other entity under this subsection,[^3] or
      - (v) fails to comply with the requirements of [section 1395mm(i)(8) of this title](/usc/42/1395mm.md?p=i-8),

      the [Secretary](/usc/42/1301.md?p=a-6) may provide, in addition to any other remedies available under law, for any of the remedies described in [subparagraph (B)](#m-5-B).

    - (B) The remedies described in this subparagraph are—
      - (i) civil money penalties of not more than $25,000 for each determination under [subparagraph (A)](#m-5-A), or, with respect to a determination under clause [(iii)](#m-5-A-iii) or [(iv)(I)](#m-5-A-iv-I) of such subparagraph, of not more than $100,000 for each such determination, plus, with respect to a determination under [subparagraph (A)(ii)](#m-5-A-ii), double the excess amount charged in [violation](/usc/42/2000e–16a.md?p=c) of such subparagraph (and the excess amount charged shall be deducted from the penalty and returned to the individual concerned), and plus, with respect to a determination under [subparagraph (A)(iii)](#m-5-A-iii), $15,000 for each individual not enrolled as a result of a practice described in such subparagraph, or
      - (ii) denial of payment to the [State](#w-7-D) for medical assistance furnished under the [contract](#m-6-A) under this subsection for individuals enrolled after the date the [Secretary](/usc/42/1301.md?p=a-6) notifies the organization of a determination under [subparagraph (A)](#m-5-A) and until the [Secretary](/usc/42/1301.md?p=a-6) is satisfied that the basis for such determination has been corrected and is not likely to recur.

      The provisions of [section 1320a–7a of this title](/usc/42/1320a–7a.md) (other than subsections [(a)](#a) and [(b)](#b)) shall apply to a civil money penalty under [clause (i)](#m-5-B-i) in the same manner as such provisions apply to a penalty or proceeding under [section 1320a–7a(a) of this title](/usc/42/1320a–7a.md?p=a).

  - (6)
    - (A) For purposes of this subsection and [section 1396a(e)(2)(A) of this title](/usc/42/1396a.md?p=e-2-A), in the case of the [State](#w-7-D) of New Jersey, the term “contract” shall be deemed to include an undertaking by the [State agency](/usc/42/1320a–7a.md?p=i-1), in the [State](#w-7-D) plan under this subchapter, to operate a [program](/usc/42/274l–1.md?p=4) meeting all requirements of this subsection.
    - (B) The undertaking described in [subparagraph (A)](#m-6-A) must provide—
      - (i) for the establishment of a separate entity responsible for the operation of a [program](/usc/42/274l–1.md?p=4) meeting the requirements of this subsection, which entity may be a subdivision of the [State agency](/usc/42/1320a–7a.md?p=i-1) administering the [State](#w-7-D) plan under this subchapter;
      - (ii) for separate accounting for the [funds](/usc/42/12854.md?p=3) used to operate such [program](/usc/42/274l–1.md?p=4); and
      - (iii) for setting the capitation rates and any other payment rates for services provided in accordance with this subsection using a methodology satisfactory to the [Secretary](/usc/42/1301.md?p=a-6) designed to ensure that total Federal matching payments under this subchapter for such services will be lower than the matching payments that would be made for the same services, if provided under the [State](#w-7-D) plan on a fee for service basis to an actuarially equivalent population.
    - (C) The undertaking described in [subparagraph (A)](#m-6-A) shall be subject to approval (and annual re-approval) by the [Secretary](/usc/42/1301.md?p=a-6) in the same manner as a [contract](#m-6-A) under this subsection.
    - (D) The undertaking described in [subparagraph (A)](#m-6-A) shall not be eligible for a waiver under [section 1396n(b) of this title](/usc/42/1396n.md?p=b).
  - (7) Payment shall be made under this subchapter to a [State](#w-7-D) for expenditures for capitation payments described in [section 438.6(e) of title 42, Code of Federal Regulations](/cfr/42/438.6.md?p=e) (or any successor regulation).
  - (8)
    - (A) The [State agency](/usc/42/1320a–7a.md?p=i-1) administering the [State](#w-7-D) plan under this subchapter may have reasonable access, as determined by the [State](#w-7-D), to 1 or more prescription [drug](/usc/42/282.md?p=j-1-A-vii) monitoring [program](/usc/42/274l–1.md?p=4) databases administered or accessed by the [State](#w-7-D) to the extent the [State agency](/usc/42/1320a–7a.md?p=i-1) is permitted to access such databases under [State](#w-7-D) law.
    - (B) Such [State agency](/usc/42/1320a–7a.md?p=i-1) may facilitate reasonable access, as determined by the [State](#w-7-D), to 1 or more prescription [drug](/usc/42/282.md?p=j-1-A-vii) monitoring [program](/usc/42/274l–1.md?p=4) databases administered or accessed by the [State](#w-7-D), to same extent that the [State agency](/usc/42/1320a–7a.md?p=i-1) is permitted under [State](#w-7-D) law to access such databases, for—
      - (i) any provider enrolled under the [State](#w-7-D) plan to provide services to [Medicaid](#w-3-E-iii-III-aa) beneficiaries; and
      - (ii) any [managed care entity](#m-9-D-i) (as defined under [section 1396u–2(a)(1)(B) of this title](/usc/42/1396u–2.md?p=a-1-B)) that has a [contract](#m-6-A) with the [State](#w-7-D) under this subsection or under [section 1396d(t)(3) of this title](/usc/42/1396d.md?p=t-3).
    - (C) Such [State agency](/usc/42/1320a–7a.md?p=i-1) may share information in such databases, to the same extent that the [State agency](/usc/42/1320a–7a.md?p=i-1) is permitted under [State](#w-7-D) law to share information in such databases, with—
      - (i) any provider enrolled under the [State](#w-7-D) plan to provide services to [Medicaid](#w-3-E-iii-III-aa) beneficiaries; and
      - (ii) any [managed care entity](#m-9-D-i) (as defined under [section 1396u–2(a)(1)(B) of this title](/usc/42/1396u–2.md?p=a-1-B)) that has a [contract](#m-6-A) with the [State](#w-7-D) under this subsection or under [section 1396d(t)(3) of this title](/usc/42/1396d.md?p=t-3).
  - (9)
    - (A) With respect to expenditures described in [subparagraph (B)](#m-9-B) that are incurred by a [State](#w-7-D) for any fiscal year after fiscal year 2020, in determining the pro rata share to which the [United States](/usc/42/1301.md?p=a-2) is equitably entitled under [subsection (d)(3)](#d-3), the [Secretary](/usc/42/1301.md?p=a-6) shall substitute the Federal medical assistance percentage that applies for such fiscal year to the [State](#w-7-D) under [section 1396d(b) of this title](/usc/42/1396d.md?p=b) (without regard to any adjustments to such percentage applicable under such section or any other provision of law) for the percentage that applies to such expenditures under [section 1396d(y) of this title](/usc/42/1396d.md?p=y).
    - (B) Expenditures described in this subparagraph, with respect to a fiscal year to which [subparagraph (A)](#m-9-A) applies, are expenditures incurred by a [State](#w-7-D) for payment for medical assistance provided to individuals described in subclause (VIII) of [section 1396a(a)(10)(A)(i) of this title](/usc/42/1396a.md?p=a-10-A-i) by a [managed care entity](#m-9-D-i), or [other specified entity](#m-9-D-iii) (as defined in [subparagraph (D)(iii)](#m-9-D-iii)), that are treated as remittances because the [State](#w-7-D)—
      - (i) has satisfied the requirement of [section 438.8 of title 42, Code of Federal Regulations](/cfr/42/438.8.md) (or any successor regulation), by electing—
        - (I) in the case of a [State](#w-7-D) described in [subparagraph (C)](#m-9-C), to apply a [minimum medical loss ratio](#m-9-D-ii) (as defined in [subparagraph (D)(ii)](#m-9-D-ii)) that is at least 85 percent but not greater than the [minimum medical loss ratio](#m-9-D-ii) (as so defined) that such [State](#w-7-D) applied as of May 31, 2018; or
        - (II) in the case of a [State](#w-7-D) not described in [subparagraph (C)](#m-9-C), to apply a [minimum medical loss ratio](#m-9-D-ii) that is equal to 85 percent; and
      - (ii) recovered all or a portion of the expenditures as a result of the entity’s failure to meet such ratio.
    - (C) For purposes of [subparagraph (B)](#m-9-B), a [State](#w-7-D) described in this subparagraph is a [State](#w-7-D) that as of May 31, 2018, applied a [minimum medical loss ratio](#m-9-D-ii) (as calculated under subsection (d) of section 438.8 of title 42, Code of Federal Regulations (as in effect on June 1, 2018)) for payment for services provided by entities described in such subparagraph under the [State](#w-7-D) plan under this subchapter (or a waiver of the plan) that is equal to or greater than 85 percent.
    - (D) For purposes of this paragraph:
      - (i) The term “managed care entity” means a [medicaid managed care organization](#m-1-A) described in [section 1396u–2(a)(1)(B)(i) of this title](/usc/42/1396u–2.md?p=a-1-B-i).
      - (ii) The term “minimum medical loss ratio” means, with respect to a [State](#w-7-D), a minimum medical loss ratio (as calculated under subsection (d) of section 438.8 of title 42, Code of Federal Regulations (as in effect on June 1, 2018)) for payment for services provided by entities described in [subparagraph (B)](#m-9-B) under the [State](#w-7-D) plan under this subchapter (or a waiver of the plan).
      - (iii) The term “other specified entity” means—
        - (I) a prepaid inpatient [health plan](/usc/42/300jj.md?p=6), as defined in [section 438.2 of title 42, Code of Federal Regulations](/cfr/42/438.2.md) (or any successor regulation); and
        - (II) a prepaid ambulatory [health plan](/usc/42/300jj.md?p=6), as defined in such section (or any successor regulation).
- (n) **Repealed. Pub. L. 100–93, § 8(h)(1), Aug. 18, 1987, 101 Stat. 694—**
- (o) **Restrictions on authorized payments to States—** Notwithstanding the preceding provisions of this section, no payment shall be made to a [State](#w-7-D) under the preceding provisions of this section for expenditures for medical assistance provided for an individual under its [State](#w-7-D) plan approved under this subchapter to the extent that a private insurer (as defined by the [Secretary](/usc/42/1301.md?p=a-6) by regulation and [including](/usc/42/1301.md?p=b) a [group health plan](/usc/42/1320d–9.md?p=b-2) (as defined in [section 1167(1) of title 29](/usc/29/1167.md?p=1)), a service benefit plan, and a health maintenance organization) would have been obligated to provide such assistance but for a provision of its insurance contract which has the effect of limiting or excluding such obligation because the individual is eligible for or is provided medical assistance under the plan.
- (p) **Assignment of rights of payment; incentive payments for enforcement and collection—**
  - (1) When a political subdivision of a [State](#w-7-D) makes, for the [State](#w-7-D) of which it is a political subdivision, or one [State](#w-7-D) makes, for another [State](#w-7-D), the enforcement and collection of rights of support or payment assigned under [section 1396k of this title](/usc/42/1396k.md), pursuant to a cooperative arrangement under such section (either within or outside of such [State](#w-7-D)), there shall be paid to such political subdivision or such other [State](#w-7-D) from amounts which would otherwise represent the Federal share of payments for medical assistance provided to the [eligible individuals](/usc/42/239.md?p=a-6) on whose behalf such enforcement and collection was made, an amount equal to 15 percent of any amount collected which is attributable to such rights of support or payment.
  - (2) Where more than one jurisdiction is involved in such enforcement or collection, the amount of the incentive payment determined under [paragraph (1)](#p-1) shall be allocated among the jurisdictions in a manner to be prescribed by the [Secretary](/usc/42/1301.md?p=a-6).
- (q) **“State medicaid fraud control unit” defined—** For the purposes of this section, the term “State medicaid fraud control unit” means a [single](/usc/42/2304.md?p=m) identifiable entity of the [State](#w-7-D) government which the [Secretary](/usc/42/1301.md?p=a-6) certifies (and annually recertifies) as meeting the following requirements:
  - (1) The entity (A) is a [unit](/usc/42/1395w–114b.md?p=g-2) of the [office](/usc/42/3058f.md?p=1) of the [State](#w-7-D) [Attorney General](/usc/42/14902.md?p=6) or of another department of State government which possesses statewide authority to prosecute individuals for criminal [violations](/usc/42/2000e–16a.md?p=c), (B) is in a [State](#w-7-D) the constitution of which does not provide for the criminal prosecution of individuals by a statewide authority and has formal procedures, approved by the [Secretary](/usc/42/1301.md?p=a-6), that (i) assure its referral of suspected criminal [violations](/usc/42/2000e–16a.md?p=c) relating to the [program](/usc/42/274l–1.md?p=4) under this subchapter to the appropriate authority or authorities in the [State](#w-7-D) for prosecution and (ii) assure its assistance of, and coordination with, such authority or authorities in such prosecutions, or (C) has a formal working relationship with the [office](/usc/42/3058f.md?p=1) of the [State](#w-7-D) [Attorney General](/usc/42/14902.md?p=6) and has formal procedures ([including](/usc/42/1301.md?p=b) procedures for its referral of suspected criminal [violations](/usc/42/2000e–16a.md?p=c) to such [office](/usc/42/3058f.md?p=1)) which are approved by the [Secretary](/usc/42/1301.md?p=a-6) and which provide effective coordination of activities between the entity and such [office](/usc/42/3058f.md?p=1) with respect to the detection, investigation, and prosecution of suspected criminal [violations](/usc/42/2000e–16a.md?p=c) relating to the [program](/usc/42/274l–1.md?p=4) under this subchapter.
  - (2) The entity is separate and distinct from the [single](/usc/42/2304.md?p=m) [State agency](/usc/42/1320a–7a.md?p=i-1) that administers or supervises the [administration](/usc/42/1301.md?p=a-10) of the [State](#w-7-D) plan under this subchapter.
  - (3) The entity’s function is conducting a statewide [program](/usc/42/274l–1.md?p=4) for the investigation and prosecution of [violations](/usc/42/2000e–16a.md?p=c) of all applicable [State](#w-7-D) laws regarding any and all aspects of fraud in connection with (A) any aspect of the provision of medical assistance and the activities of providers of such assistance under the [State](#w-7-D) plan under this subchapter; and (B) upon the approval of the Inspector General of the relevant Federal [agency](/usc/42/1397n–12.md?p=1), any aspect of the provision of health care services and activities of providers of such services under any Federal health care [program](/usc/42/274l–1.md?p=4) (as defined in [section 1320a–7b(f)(1) of this title](/usc/42/1320a–7b.md?p=f-1)), if the suspected fraud or [violation](/usc/42/2000e–16a.md?p=c) of law in such case or investigation is primarily related to the [State](#w-7-D) plan under this subchapter.
  - (4)
    - (A) The entity has—
      - (i) procedures for reviewing complaints of [abuse](/usc/42/1397j.md?p=1) or [neglect](/usc/42/1397j.md?p=16) of patients in health care [facilities](/usc/42/11049.md?p=4) which receive payments under the [State](#w-7-D) plan under this subchapter;
      - (ii) at the option of the entity, procedures for reviewing complaints of [abuse](/usc/42/1397j.md?p=1) or [neglect](/usc/42/1397j.md?p=16) of patients residing in [board and care facilities](#q-4-B) and of patients (who are receiving medical assistance under the [State](#w-7-D) plan under this subchapter (or waiver of such plan)) in a noninstitutional or other setting; and
      - (iii) procedures for acting upon such complaints under the criminal laws of the [State](#w-7-D) or for referring such complaints to other [State agencies](/usc/42/1320a–7a.md?p=i-1) for action.
    - (B) For purposes of this paragraph, the term “board and care facility” means a residential setting which receives payment (regardless of whether such payment is made under the [State](#w-7-D) plan under this subchapter) from or on behalf of two or more unrelated adults who reside in such [facility](/usc/42/11049.md?p=4), and for whom one or both of the following is provided:
      - (i) Nursing care services provided by, or under the supervision of, a registered nurse, licensed practical nurse, or licensed nursing assistant.
      - (ii) A substantial amount of [personal care services](#l-5-C) that assist residents with the activities of daily living, [including](/usc/42/1301.md?p=b) personal hygiene, dressing, bathing, eating, toileting, ambulation, transfer, positioning, self-medication, body care, travel to medical services, essential shopping, meal preparation, laundry, and housework.
  - (5) The entity provides for the collection, or referral for collection to a [single](/usc/42/2304.md?p=m) [State agency](/usc/42/1320a–7a.md?p=i-1), of overpayments that are made under the [State](#w-7-D) plan or under any Federal health care [program](/usc/42/274l–1.md?p=4) (as so defined) to health care [facilities](/usc/42/11049.md?p=4) and that are discovered by the entity in carrying out its activities. All [funds](/usc/42/12854.md?p=3) collected in accordance with this paragraph shall be credited exclusively to, and available for expenditure under, the Federal health care [program](/usc/42/274l–1.md?p=4) ([including](/usc/42/1301.md?p=b) the [State](#w-7-D) plan under this subchapter) that was subject to the activity that was the basis for the collection.
  - (6) The entity employs such auditors, attorneys, investigators, and other necessary personnel and is organized in such a manner as is necessary to promote the effective and efficient conduct of the entity’s activities.
  - (7) The entity submits to the [Secretary](/usc/42/1301.md?p=a-6) an application and annual reports containing such information as the [Secretary](/usc/42/1301.md?p=a-6) determines, by regulation, to be necessary to determine whether the entity meets the other requirements of this subsection.
- (r) **Mechanized claims processing and information retrieval systems; operational, etc., requirements—**
  - (1) In order to receive payments under [subsection (a)](#a) for use of automated data systems in [administration](/usc/42/1301.md?p=a-10) of the [State](#w-7-D) plan under this subchapter, a [State](#w-7-D) must, in addition to meeting the requirements of [paragraph (3)](#r-3), have in operation mechanized [claims](/usc/42/1320a–7a.md?p=i-2) processing and information retrieval systems that meet the requirements of this subsection and that the [Secretary](/usc/42/1301.md?p=a-6) has found—
    - (A) are adequate to provide efficient, economical, and effective [administration](/usc/42/1301.md?p=a-10) of such [State](#w-7-D) plan;
    - (B) are compatible with the [claims](/usc/42/1320a–7a.md?p=i-2) processing and information retrieval systems used in the [administration](/usc/42/1301.md?p=a-10) of subchapter XVIII, and for this purpose—
      - (i) have a uniform identification coding system for providers, other payees, and beneficiaries under this subchapter or subchapter XVIII;
      - (ii) provide liaison between [States](#w-7-D) and carriers and intermediaries with [agreements](/usc/42/1320b–8.md?p=a-3-A) under subchapter XVIII to facilitate timely [exchange](/usc/42/300gg–91.md?p=d-21) of appropriate data;
      - (iii) provide for [exchange](/usc/42/300gg–91.md?p=d-21) of data between the [States](#w-7-D) and the [Secretary](/usc/42/1301.md?p=a-6) with respect to [persons](/usc/42/1301.md?p=a-3) sanctioned under this subchapter or subchapter XVIII; and
      - (iv) effective for [claims](/usc/42/1320a–7a.md?p=i-2) filed on or after October 1, 2010, incorporate compatible methodologies of the National Correct Coding [Initiative](/usc/42/19131.md?p=1) administered by the [Secretary](/usc/42/1301.md?p=a-6) (or any successor [initiative](/usc/42/19131.md?p=1) to promote correct coding and to [control](#m-1-C-ii) improper coding leading to inappropriate payment) and such other methodologies of that [Initiative](/usc/42/19131.md?p=1) (or such other national correct coding methodologies) as the [Secretary](/usc/42/1301.md?p=a-6) identifies in accordance with [paragraph (4)](#r-4);
    - (C) are capable of providing accurate and timely data;
    - (D) are complying with the applicable provisions of part C of subchapter XI;
    - (E) are designed to receive provider [claims](/usc/42/1320a–7a.md?p=i-2) in [standard](/usc/42/1320d.md?p=7) formats to the extent specified by the [Secretary](/usc/42/1301.md?p=a-6); and
    - (F) effective for [claims](/usc/42/1320a–7a.md?p=i-2) filed on or after January 1, 1999, provide for electronic transmission of [claims](/usc/42/1320a–7a.md?p=i-2) data in the format specified by the [Secretary](/usc/42/1301.md?p=a-6) and consistent with the [Medicaid](#w-3-E-iii-III-aa) Statistical Information System (MSIS) ([including](/usc/42/1301.md?p=b) detailed individual enrollee encounter data and other information that the [Secretary](/usc/42/1301.md?p=a-6) may find necessary and [including](/usc/42/1301.md?p=b), for data submitted to the [Secretary](/usc/42/1301.md?p=a-6) on or after January 1, 2010, data elements from the automated data system that the [Secretary](/usc/42/1301.md?p=a-6) determines to be necessary for [program](/usc/42/274l–1.md?p=4) integrity, [program](/usc/42/274l–1.md?p=4) oversight, and [administration](/usc/42/1301.md?p=a-10), at such frequency as the [Secretary](/usc/42/1301.md?p=a-6) shall determine).
  - (2) In order to meet the requirements of this paragraph, mechanized [claims](/usc/42/1320a–7a.md?p=i-2) processing and information retrieval systems must meet the following requirements:
    - (A) The systems must be capable of developing provider, [physician](/usc/42/1301.md?p=a-7), and patient profiles which are sufficient to provide specific information as to the use of covered types of services and items, [including](/usc/42/1301.md?p=b) prescribed [drugs](/usc/42/282.md?p=j-1-A-vii).
    - (B) The [State](#w-7-D) must provide that information on probable fraud or [abuse](/usc/42/1397j.md?p=1) which is obtained from, or developed by, the systems, is made available to the [State](#w-7-D)’s [medicaid](#w-3-E-iii-III-aa) fraud [control](#m-1-C-ii) [unit](/usc/42/1395w–114b.md?p=g-2) (if any) certified under [subsection (q)](#q) of this section.
    - (C) The systems must meet all performance [standards](/usc/42/1320d.md?p=7) and other requirements for initial approval developed by the [Secretary](/usc/42/1301.md?p=a-6).
  - (3)
    - (A) In order to meet the requirements of this paragraph, a [State](#w-7-D) must have in operation an eligibility determination system which provides for data matching through—
      - (i) the Public Assistance Reporting Information System (PARIS) facilitated by the [Secretary](/usc/42/1301.md?p=a-6) (or any successor system), [including](/usc/42/1301.md?p=b) matching with medical assistance [programs](/usc/42/274l–1.md?p=4) operated by other [States](#w-7-D); and
      - (ii) beginning October 1, 2029, the system established by the [Secretary](/usc/42/1301.md?p=a-6) under [section 1396a(uu) of this title](/usc/42/1396a.md?p=uu).
    - (B) Beginning October 1, 2029, the [Secretary](/usc/42/1301.md?p=a-6) may determine that a [State](#w-7-D) is not required to have in operation an eligibility determination system which provides for data matching (for purposes of address verification under [section 1396a(vv) of this title](/usc/42/1396a.md?p=vv)) through the system described in [subparagraph (A)(i)](#r-3-A-i) to meet the requirements of this paragraph.
  - (4) For purposes of [paragraph (1)(B)(iv)](#r-1-B-iv), the [Secretary](/usc/42/1301.md?p=a-6) shall do the following:
    - (A) Not later than September 1, 2010:
      - (i) Identify those methodologies of the National Correct Coding [Initiative](/usc/42/19131.md?p=1) administered by the [Secretary](/usc/42/1301.md?p=a-6) (or any successor [initiative](/usc/42/19131.md?p=1) to promote correct coding and to [control](#m-1-C-ii) improper coding leading to inappropriate payment) which are compatible to [claims](/usc/42/1320a–7a.md?p=i-2) filed under this subchapter.
      - (ii) Identify those methodologies of such [Initiative](/usc/42/19131.md?p=1) (or such other national correct coding methodologies) that should be incorporated into [claims](/usc/42/1320a–7a.md?p=i-2) filed under this subchapter with respect to items or services for which [States](#w-7-D) provide medical assistance under this subchapter and no national correct coding methodologies have been established under such [Initiative](/usc/42/19131.md?p=1) with respect to subchapter XVIII.
      - (iii) Notify [States](#w-7-D) of—
        - (I) the methodologies identified under subparagraphs [(A)](#r-4-A) and [(B)](#r-4-B) (and of any other national correct coding methodologies identified under [subparagraph (B)](#r-4-B)); and
        - (II) how [States](#w-7-D) are to incorporate such methodologies into [claims](/usc/42/1320a–7a.md?p=i-2) filed under this subchapter.
    - (B) Not later than March 1, 2011, submit a report to Congress that [includes](/usc/42/1301.md?p=b) the notice to [States](#w-7-D) under [clause (iii)](#r-4-A-iii) of subparagraph (A) and an analysis supporting the identification of the methodologies made under clauses [(i)](#r-4-A-i) and [(ii)](#r-4-A-ii) of subparagraph (A).
- (s) **Limitations on certain physician referrals—** Notwithstanding the preceding provisions of this section, no payment shall be made to a [State](#w-7-D) under this section for expenditures for medical assistance under the [State](#w-7-D) plan consisting of a designated health service (as defined in subsection (h)(6) of [section 1395nn of this title](/usc/42/1395nn.md)) furnished to an individual on the basis of a referral that would result in the denial of payment for the service under subchapter XVIII if such subchapter provided for coverage of such service to the same extent and under the same terms and conditions as under the [State](#w-7-D) plan, and subsections [(f)](/usc/42/1395nn.md?p=f) and [(g)(5)](/usc/42/1395nn.md?p=g-5) of such section shall apply to a provider of such a designated health service for which payment may be made under this subchapter in the same manner as such subsections apply to a provider of such a service for which payment may be made under such subchapter.
- (t) **Payments to encourage adoption and use of certified EHR technology—**
  - (1) For purposes of [subsection (a)(3)(F)](#a-3-F), the payments described in this paragraph to encourage the adoption and use of [certified EHR technology](/usc/42/300jj.md?p=1) are payments made by the [State](#w-7-D) in accordance with this subsection—
    - (A) to [Medicaid providers](#t-2) described in [paragraph (2)(A)](#t-2-A) not in excess of 85 percent of [net average allowable costs](#t-3-E) (as defined in [paragraph (3)(E)](#t-3-E)) for [certified EHR technology](/usc/42/300jj.md?p=1) (and support services [including](/usc/42/1301.md?p=b) maintenance and [training](/usc/42/285e–2.md?p=b-2) that is for, or is necessary for the adoption and operation of, such technology) with respect to such providers; and
    - (B) to [Medicaid providers](#t-2) described in [paragraph (2)(B)](#t-2-B) not in excess of the maximum amount permitted under [paragraph (5)](#t-5) for the provider involved.
  - (2) In this subsection and [subsection (a)(3)(F)](#a-3-F), the term “Medicaid provider” means—
    - (A) an [eligible professional](#t-3-B) (as defined in [paragraph (3)(B)](#t-3-B))—
      - (i) who is not [hospital-based](#t-3-D) and has at least 30 percent of the professional’s patient volume (as estimated in accordance with a methodology established by the [Secretary](/usc/42/1301.md?p=a-6)) attributable to individuals who are receiving medical assistance under this subchapter;
      - (ii) who is not described in [clause (i)](#t-2-A-i), who is a pediatrician, who is not [hospital-based](#t-3-D), and who has at least 20 percent of the professional’s patient volume (as estimated in accordance with a methodology established by the [Secretary](/usc/42/1301.md?p=a-6)) attributable to individuals who are receiving medical assistance under this subchapter; and
      - (iii) who [practices](/usc/42/17061.md?p=19) predominantly in a [Federally qualified health center](/usc/42/254c.md?p=b-2) or [rural health clinic](/usc/42/254c.md?p=b-2) and has at least 30 percent of the professional’s patient volume (as estimated in accordance with a methodology established by the [Secretary](/usc/42/1301.md?p=a-6)) attributable to [needy individuals](#t-3-F) (as defined in [paragraph (3)(F)](#t-3-F)); and
    - (B)
      - (i) a [children](/usc/42/256e.md?p=g-2)’s [hospital](/usc/42/1395dd.md?p=e-5), or
      - (ii) an acute-care [hospital](/usc/42/1395dd.md?p=e-5) that is not described in [clause (i)](#t-2-B-i) and that has at least 10 percent of the [hospital](/usc/42/1395dd.md?p=e-5)’s patient volume (as estimated in accordance with a methodology established by the [Secretary](/usc/42/1301.md?p=a-6)) attributable to individuals who are receiving medical assistance under this subchapter.

    An [eligible professional](#t-3-B) shall not qualify as a Medicaid provider under this subsection unless any right to payment under sections [1395w–4(o)](/usc/42/1395w–4.md?p=o) and [1395w–23(l)](/usc/42/1395w–23.md?p=l) of this title with respect to the [eligible professional](#t-3-B) has been waived in a manner specified by the [Secretary](/usc/42/1301.md?p=a-6). For purposes of calculating patient volume under [subparagraph (A)(iii)](#t-2-A-iii), insofar as it is related to uncompensated care, the [Secretary](/usc/42/1301.md?p=a-6) may require the adjustment of such uncompensated care data so that it would be an appropriate proxy for charity care, [including](/usc/42/1301.md?p=b) a downward adjustment to eliminate bad debt data from uncompensated care. In applying subparagraphs [(A)](#t-2-A) and [(B)(ii)](#t-2-B-ii), the methodology established by the [Secretary](/usc/42/1301.md?p=a-6) for patient volume shall include individuals enrolled in a [Medicaid](#w-3-E-iii-III-aa) managed care plan (under [subsection (m)](#m) or [section 1396u–2 of this title](/usc/42/1396u–2.md)).

  - (3) In this subsection and [subsection (a)(3)(F)](#a-3-F):
    - (A) The term “[certified EHR technology](/usc/42/300jj.md?p=1)” means a qualified electronic health record (as defined in[^9] [300jj(13)](/usc/42/300jj.md?p=13) of this title) that is certified pursuant to [section 300jj–11(c)(5) of this title](/usc/42/300jj–11.md?p=c-5) as meeting [standards](/usc/42/1320d.md?p=7) adopted under [section 300jj–14 of this title](/usc/42/300jj–14.md) that are applicable to the type of record involved (as determined by the [Secretary](/usc/42/1301.md?p=a-6), such as an ambulatory electronic health record for [office](/usc/42/3058f.md?p=1)-based [physicians](/usc/42/1396d.md?p=e) or an inpatient [hospital](/usc/42/1395dd.md?p=e-5) electronic health record for [hospitals](/usc/42/1395dd.md?p=e-5)).
    - (B) The term “eligible professional” means a—
      - (i) [physician](/usc/42/1301.md?p=a-7);
      - (ii) dentist;
      - (iii) certified nurse mid-[wife](/usc/42/416.md?p=b);
      - (iv) nurse [practitioner](/usc/42/1395a.md?p=b-6-C); and
      - (v) [physician](/usc/42/1301.md?p=a-7) assistant insofar as the assistant is practicing in a [rural health clinic](/usc/42/254c.md?p=b-2) that is led by a [physician](/usc/42/1301.md?p=a-7) assistant or is practicing in a [Federally qualified health center](/usc/42/254c.md?p=b-2) that is so led.
    - (C) The term “average allowable costs” means, with respect to [certified EHR technology](/usc/42/300jj.md?p=1) of [Medicaid providers](#t-2) described in [paragraph (2)(A)](#t-2-A) for—
      - (i) the first year of payment with respect to such a provider, the average costs for the purchase and initial implementation or upgrade of such technology (and support services [including](/usc/42/1301.md?p=b) [training](/usc/42/285e–2.md?p=b-2) that is for, or is necessary for the adoption and initial operation of, such technology) for such providers, as determined by the [Secretary](/usc/42/1301.md?p=a-6) based upon studies conducted under [paragraph (4)(C)](#t-4-C); and
      - (ii) a subsequent year of payment with respect to such a provider, the average costs not described in [clause (i)](#t-3-C-i) relating to the operation, maintenance, and use of such technology for such providers, as determined by the [Secretary](/usc/42/1301.md?p=a-6) based upon studies conducted under [paragraph (4)(C)](#t-4-C).
    - (D) The term “hospital-based” means, with respect to an [eligible professional](#t-3-B), a professional (such as a pathologist, anesthesiologist, or emergency [physician](/usc/42/1301.md?p=a-7)) who furnishes substantially all of the individual’s professional services in a [hospital](/usc/42/1395dd.md?p=e-5) inpatient or emergency room setting and through the use of the [facilities](/usc/42/11049.md?p=4) and equipment, [including](/usc/42/1301.md?p=b) qualified electronic health records, of the [hospital](/usc/42/1395dd.md?p=e-5). The determination of whether an [eligible professional](#t-3-B) is a hospital-based [eligible professional](#t-3-B) shall be made on the basis of the site of service (as defined by the [Secretary](/usc/42/1301.md?p=a-6)) and without regard to any employment or billing arrangement between the [eligible professional](#t-3-B) and any other provider.
    - (E) The term “net average allowable costs” means, with respect to a [Medicaid provider](#t-2) described in [paragraph (2)(A)](#t-2-A), [average allowable costs](#t-3-C) reduced by the average payment the [Secretary](/usc/42/1301.md?p=a-6) estimates will be made to such [Medicaid providers](#t-2) (determined on a percentage or other basis for such classes or types of providers as the [Secretary](/usc/42/1301.md?p=a-6) may specify) from other sources (other than under this subsection, or by the Federal government or a [State](#w-7-D) or [local government](/usc/42/8401a.md)) that is directly attributable to payment for [certified EHR technology](/usc/42/300jj.md?p=1) or support services described in [subparagraph (C)](#t-3-C).
    - (F) The term “needy individual” means, with respect to a [Medicaid provider](#t-2), an individual—
      - (i) who is receiving assistance under this subchapter;
      - (ii) who is receiving assistance under subchapter XXI;
      - (iii) who is furnished uncompensated care by the provider; or
      - (iv) for whom charges are reduced by the provider on a sliding scale basis based on an individual’s ability to pay.
  - (4)
    - (A) With respect to a [Medicaid provider](#t-2) described in [paragraph (2)(A)](#t-2-A), subject to [subparagraph (B)](#t-4-B), in no case shall—
      - (i) the [net average allowable costs](#t-3-E) under this subsection for the first year of payment (which may not be later than 2016), which is intended to cover the costs described in [paragraph (3)(C)(i)](#t-3-C-i), exceed $25,000 (or such lesser amount as the [Secretary](/usc/42/1301.md?p=a-6) determines based on studies conducted under [subparagraph (C)](#t-4-C));
      - (ii) the [net average allowable costs](#t-3-E) under this subsection for a subsequent year of payment, which is intended to cover costs described in [paragraph (3)(C)(ii)](#t-3-C-ii), exceed $10,000; and
      - (iii) payments be made for costs described in [clause (ii)](#t-4-A-ii) after 2021 or over a period of longer than 5 years.
    - (B) In the case of [Medicaid](#w-3-E-iii-III-aa)[^10] provider described in [paragraph (2)(A)(ii)](#t-2-A-ii), the dollar amounts specified in [subparagraph (A)](#t-4-A) shall be ⅔ of the dollar amounts otherwise specified.
    - (C) For the purposes of determining [average allowable costs](#t-3-C) under this subsection, the [Secretary](/usc/42/1301.md?p=a-6) shall study the average costs to [Medicaid providers](#t-2) described in [paragraph (2)(A)](#t-2-A) of purchase and initial implementation and upgrade of [certified EHR technology](/usc/42/300jj.md?p=1) described in [paragraph (3)(C)(i)](#t-3-C-i) and the average costs to such providers of operations, maintenance, and use of such technology described in [paragraph (3)(C)(ii)](#t-3-C-ii). In determining such costs for such providers, the [Secretary](/usc/42/1301.md?p=a-6) may utilize studies of such amounts submitted by [States](#w-7-D).
  - (5)
    - (A) In no case shall the payments described in [paragraph (1)(B)](#t-1-B) with respect to a [Medicaid provider](#t-2) described in [paragraph (2)(B)](#t-2-B) exceed—
      - (i) in the aggregate the product of—
        - (I) the overall [hospital](/usc/42/1395dd.md?p=e-5) EHR amount for the provider computed under [subparagraph (B)](#t-5-B); and
        - (II) the [Medicaid](#w-3-E-iii-III-aa) share for such provider computed under [subparagraph (C)](#t-5-C);
      - (ii) in any year 50 percent of the product described in [clause (i)](#t-5-A-i); and
      - (iii) in any 2-year period 90 percent of such product.
    - (B) For purposes of this paragraph, the overall [hospital](/usc/42/1395dd.md?p=e-5) EHR amount, with respect to a [Medicaid provider](#t-2), is the sum of the applicable amounts specified in [section 1395ww(n)(2)(A) of this title](/usc/42/1395ww.md?p=n-2-A) for such provider for the first 4 payment years (as estimated by the [Secretary](/usc/42/1301.md?p=a-6)) determined as if the Medicare share specified in [clause (ii)](/usc/42/1395ww.md?p=n-2-A-ii) of such section were 1. The [Secretary](/usc/42/1301.md?p=a-6) shall establish, in consultation with the [State](#w-7-D), the overall [hospital](/usc/42/1395dd.md?p=e-5) EHR amount for each such [Medicaid provider](#t-2) eligible for payments under [paragraph (1)(B)](#t-1-B). For purposes of this subparagraph in computing the amounts under [section 1395ww(n)(2)(C) of this title](/usc/42/1395ww.md?p=n-2-C) for payment years after the first payment year, the [Secretary](/usc/42/1301.md?p=a-6) shall assume that in subsequent payment years discharges increase at the average annual rate of growth of the most recent 3 years for which discharge data are available per year.
    - (C) The [Medicaid](#w-3-E-iii-III-aa) share computed under this subparagraph, for a [Medicaid provider](#t-2) for a period specified by the [Secretary](/usc/42/1301.md?p=a-6), shall be calculated in the same manner as the Medicare share under [section 1395ww(n)(2)(D) of this title](/usc/42/1395ww.md?p=n-2-D) for such a [hospital](/usc/42/1395dd.md?p=e-5) and period, except that there shall be substituted for the numerator under [clause (i)](/usc/42/1395ww.md?p=n-2-D-i) of such section the amount that is equal to the number of inpatient-bed-days (as established by the [Secretary](/usc/42/1301.md?p=a-6)) which are attributable to individuals who are receiving medical assistance under this subchapter and who are not described in [section 1395ww(n)(2)(D)(i) of this title](/usc/42/1395ww.md?p=n-2-D-i). In computing inpatient-bed-days under the previous sentence, the [Secretary](/usc/42/1301.md?p=a-6) shall take into account inpatient-bed-days attributable to inpatient-bed-days that are paid for individuals enrolled in a [Medicaid](#w-3-E-iii-III-aa) managed care plan (under [subsection (m)](#m) or [section 1396u–2 of this title](/usc/42/1396u–2.md)).
    - (D) In no case may the payments described in [paragraph (1)(B)](#t-1-B) with respect to a [Medicaid provider](#t-2) described in [paragraph (2)(B)](#t-2-B) be paid—
      - (i) for any year beginning after 2016 unless the provider has been provided payment under [paragraph (1)(B)](#t-1-B) for the previous year; and
      - (ii) over a period of more than 6 years of payment.
  - (6) Payments described in [paragraph (1)](#t-1) are not in accordance with this subsection unless the following requirements are met:
    - (A)
      - (i) The [State](#w-7-D) provides assurances satisfactory to the [Secretary](/usc/42/1301.md?p=a-6) that amounts received under [subsection (a)(3)(F)](#a-3-F) with respect to payments to a [Medicaid provider](#t-2) are paid, subject to [clause (ii)](#t-6-A-ii), directly to such provider (or to an employer or [facility](/usc/42/11049.md?p=4) to which such provider has assigned payments) without any deduction or rebate.
      - (ii) Amounts described in [clause (i)](#t-6-A-i) may also be paid to an entity promoting the adoption of [certified EHR technology](/usc/42/300jj.md?p=1), as designated by the [State](#w-7-D), if participation in such a payment arrangement is voluntary for the [eligible professional](#t-3-B) involved and if such entity does not retain more than 5 percent of such payments for costs not related to [certified EHR technology](/usc/42/300jj.md?p=1) (and support services [including](/usc/42/1301.md?p=b) maintenance and [training](/usc/42/285e–2.md?p=b-2)) that is for, or is necessary for the operation of, such technology.
    - (B) A [Medicaid provider](#t-2) described in [paragraph (2)(A)](#t-2-A) is responsible for payment of the remaining 15 percent of the net average allowable cost and shall be determined to have met such responsibility to the extent that the payment to the [Medicaid provider](#t-2) is not in excess of 85 percent of the net average allowable cost.
    - (C)
      - (i) Subject to [clause (ii)](#t-6-C-ii), with respect to payments to a [Medicaid provider](#t-2)—
        - (I) for the first year of payment to the [Medicaid provider](#t-2) under this subsection, the [Medicaid provider](#t-2) demonstrates that it is engaged in efforts to adopt, implement, or upgrade [certified EHR technology](/usc/42/300jj.md?p=1); and
        - (II) for a year of payment, other than the first year of payment to the [Medicaid provider](#t-2) under this subsection, the [Medicaid provider](#t-2) demonstrates meaningful use of [certified EHR technology](/usc/42/300jj.md?p=1) through a means that is approved by the [State](#w-7-D) and acceptable to the [Secretary](/usc/42/1301.md?p=a-6), and that may be based upon the methodologies applied under section [1395w–4(o)](/usc/42/1395w–4.md?p=o) or [1395ww(n)](/usc/42/1395ww.md?p=n) of this title.
      - (ii) In the case of a [Medicaid provider](#t-2) who has completed adopting, implementing, or upgrading such technology prior to the first year of payment to the [Medicaid provider](#t-2) under this subsection, [clause (i)(I)](#t-6-C-i-I) shall not apply and [clause (i)(II)](#t-6-C-i-II) shall apply to each year of payment to the [Medicaid provider](#t-2) under this subsection, [including](/usc/42/1301.md?p=b) the first year of payment.
    - (D) To the extent specified by the [Secretary](/usc/42/1301.md?p=a-6), the [certified EHR technology](/usc/42/300jj.md?p=1) is compatible with [State](#w-7-D) or Federal administrative management systems.

    For purposes of [subparagraph (B)](#t-6-B), a [Medicaid provider](#t-2) described in [paragraph (2)(A)](#t-2-A) may accept payments for the costs described in such subparagraph from a [State](#w-7-D) or [local government](/usc/42/8401a.md). For purposes of [subparagraph (C)](#t-6-C), in establishing the means described in such subparagraph, which may include clinical quality reporting to the [State](#w-7-D), the [State](#w-7-D) shall ensure that populations with unique needs, such as [children](/usc/42/256e.md?p=g-2), are appropriately addressed.

  - (7) With respect to [Medicaid providers](#t-2) described in [paragraph (2)(A)](#t-2-A), the [Secretary](/usc/42/1301.md?p=a-6) shall ensure coordination of payment with respect to such providers under sections [1395w–4(o)](/usc/42/1395w–4.md?p=o) and [1395w–23(l)](/usc/42/1395w–23.md?p=l) of this title and under this subsection to assure no duplication of funding. Such coordination shall include, to the extent practicable, a data matching process between [State](#w-7-D) [Medicaid](#w-3-E-iii-III-aa) [agencies](/usc/42/1397n–12.md?p=1) and the Centers for Medicare & [Medicaid](#w-3-E-iii-III-aa) Services using national provider identifiers. For such purposes, the [Secretary](/usc/42/1301.md?p=a-6) may require the submission of such data relating to payments to such [Medicaid providers](#t-2) as the [Secretary](/usc/42/1301.md?p=a-6) may specify.
  - (8) In carrying out [paragraph (6)(C)](#t-6-C), the [State](#w-7-D) and [Secretary](/usc/42/1301.md?p=a-6) shall seek, to the maximum extent practicable, to avoid duplicative requirements from Federal and [State](#w-7-D) governments to demonstrate meaningful use of [certified EHR technology](/usc/42/300jj.md?p=1) under this subchapter and subchapter XVIII. In doing so, the [Secretary](/usc/42/1301.md?p=a-6) may deem satisfaction of requirements for such meaningful use for a payment year under subchapter XVIII to be sufficient to qualify as meaningful use under this subsection. The [Secretary](/usc/42/1301.md?p=a-6) may also specify the reporting periods under this subsection in order to carry out this paragraph.
  - (9) In order to be provided Federal financial participation under [subsection (a)(3)(F)(ii)](#a-3-F-ii), a [State](#w-7-D) must demonstrate to the satisfaction of the [Secretary](/usc/42/1301.md?p=a-6), that the [State](#w-7-D)—
    - (A) is using the [funds](/usc/42/12854.md?p=3) provided for the purposes of administering payments under this subsection, [including](/usc/42/1301.md?p=b) tracking of meaningful use by [Medicaid providers](#t-2);
    - (B) is conducting adequate oversight of the [program](/usc/42/274l–1.md?p=4) under this subsection, [including](/usc/42/1301.md?p=b) routine tracking of meaningful use attestations and reporting mechanisms; and
    - (C) is pursuing [initiatives](/usc/42/19131.md?p=1) to encourage the adoption of [certified EHR technology](/usc/42/300jj.md?p=1) to promote health care quality and the [exchange](/usc/42/300gg–91.md?p=d-21) of health care information under this subchapter, subject to applicable laws and regulations governing such [exchange](/usc/42/300gg–91.md?p=d-21).
  - (10) The [Secretary](/usc/42/1301.md?p=a-6) shall periodically submit reports to the Committee on [Energy](/usc/42/6311.md?p=7) and [Commerce](/usc/42/6311.md?p=7) of the House of [Representatives](/usc/42/3058f.md?p=5) and the Committee on Finance of the Senate on status, progress, and oversight of payments described in [paragraph (1)](#t-1), [including](/usc/42/1301.md?p=b) steps taken to carry out [paragraph (7)](#t-7). Such reports shall also describe the extent of adoption of [certified EHR technology](/usc/42/300jj.md?p=1) among [Medicaid providers](#t-2) resulting from the provisions of this subsection and any improvements in health outcomes, clinical quality, or efficiency resulting from such adoption.
- (u) **Limitation of Federal financial participation in erroneous medical assistance expenditures—**
  - (1)
    - (A) Notwithstanding [subsection (a)(1)](#a-1), if the ratio of a [State](#w-7-D)’s [erroneous excess payments for medical assistance](#u-1-D-i) (as defined in [subparagraph (D)](#u-1-D)) to its [total expenditures](/usc/42/1320f.md?p=c-5) for medical assistance under the [State](#w-7-D) plan approved under this subchapter exceeds 0.03, for the period consisting of the third and fourth quarters of fiscal year 1983, or for any full fiscal year thereafter, then the [Secretary](/usc/42/1301.md?p=a-6) shall make no payment for such period or fiscal year with respect to so much of such erroneous excess payments as exceeds such allowable error rate of 0.03.
    - (B) The [Secretary](/usc/42/1301.md?p=a-6) may waive, in certain limited cases, all or part of the reduction required under [subparagraph (A)](#u-1-A) with respect to any [State](#w-7-D) if such [State](#w-7-D) is unable to reach the allowable error rate for a period or fiscal year despite a good faith effort by such [State](#w-7-D).
    - (C) In estimating the amount to be paid to a [State](#w-7-D) under [subsection (d)](#d), the [Secretary](/usc/42/1301.md?p=a-6) shall take into consideration the limitation on Federal financial participation imposed by [subparagraph (A)](#u-1-A) and shall reduce the estimate he makes under [subsection (d)(1)](#d-1), for purposes of payment to the [State](#w-7-D) under [subsection (d)(3)](#d-3), in light of any expected [erroneous excess payments for medical assistance](#u-1-D-i) (estimated in accordance with such criteria, [including](/usc/42/1301.md?p=b) sampling procedures, as he may prescribe and subject to subsequent adjustment, if necessary, under [subsection (d)(2)](#d-2)).
    - (D)
      - (i) For purposes of this subsection, the term “erroneous excess payments for medical assistance” means the total of—
        - (I) payments under the [State](#w-7-D) plan with respect to ineligible individuals and [families](/usc/42/12704.md?p=11), and
        - (II) overpayments on behalf of [eligible individuals](/usc/42/239.md?p=a-6) and [families](/usc/42/12704.md?p=11) by reason of error in determining the amount of expenditures for [medical care](/usc/42/1301.md?p=a-7) required of an individual or [family](/usc/42/290ff–4.md?p=d-2) as a condition of eligibility.
      - (ii) In determining the amount of [erroneous excess payments for medical assistance](#u-1-D-i) to an ineligible individual or [family](/usc/42/290ff–4.md?p=d-2) under [clause (i)(I)](#u-1-D-i-I), if such ineligibility is the result of an error in determining the amount of the resources of such individual or [family](/usc/42/290ff–4.md?p=d-2), the amount of the erroneous excess payment shall be the smaller of (I) the amount of the payment with respect to such individual or [family](/usc/42/290ff–4.md?p=d-2), or (II) the difference between the actual amount of such resources and the allowable resource level established under the [State](#w-7-D) plan.
      - (iii) In determining the amount of [erroneous excess payments for medical assistance](#u-1-D-i) to an individual or [family](/usc/42/290ff–4.md?p=d-2) under [clause (i)(II)](#u-1-D-i-II), the amount of the erroneous excess payment shall be the smaller of (I) the amount of the payment on behalf of the individual or [family](/usc/42/290ff–4.md?p=d-2), or (II) the difference between the actual amount incurred for [medical care](/usc/42/1301.md?p=a-7) by the individual or [family](/usc/42/290ff–4.md?p=d-2) and the amount which should have been incurred in order to establish eligibility for medical assistance.
      - (iv) In determining the amount of erroneous excess payments, there shall not be included any error resulting from a failure of an individual to cooperate or give correct information with respect to third-party liability as required under section [1396k(a)(1)(C)](/usc/42/1396k.md?p=a-1-C) or [602(a)(26)(C)](/usc/42/602.md)[^4] of this title or with respect to payments made in [violation](/usc/42/2000e–16a.md?p=c) of [section 1396e of this title](/usc/42/1396e.md).
      - (v) In determining the amount of erroneous excess payments, there shall not be included any erroneous payments made for ambulatory prenatal care provided during a presumptive eligibility period (as defined in [section 1396r–1(b)(1) of this title](/usc/42/1396r–1.md?p=b-1)), for items and services described in subsection (a) of [section 1396r–1a of this title](/usc/42/1396r–1a.md) provided to a [child](/usc/42/416.md?p=e) during a presumptive eligibility period under such section, for medical assistance provided to an individual described in subsection (a) of [section 1396r–1b of this title](/usc/42/1396r–1b.md) during a presumptive eligibility period under such section, or[^11] for medical assistance provided to an individual described in subsection (a) of [section 1396r–1c of this title](/usc/42/1396r–1c.md) during a presumptive eligibility period under such section, or for medical assistance provided to an individual during a presumptive eligibility period resulting from a determination of presumptive eligibility made by a [hospital](/usc/42/1395dd.md?p=e-5) that elects under [section 1396a(a)(47)(B) of this title](/usc/42/1396a.md?p=a-47-B) to be a qualified entity for such purpose.
    - (E) For purposes of [subparagraph (D)](#u-1-D), there shall be excluded, in determining both [erroneous excess payments for medical assistance](#u-1-D-i) and [total expenditures](/usc/42/1320f.md?p=c-5) for medical assistance—
      - (i) payments with respect to any individual whose eligibility therefor was determined exclusively by the [Secretary](/usc/42/1301.md?p=a-6) under an [agreement](/usc/42/1320b–8.md?p=a-3-A) pursuant to [section 1383c of this title](/usc/42/1383c.md) and such other classes of individuals as the [Secretary](/usc/42/1301.md?p=a-6) may by regulation prescribe whose eligibility was determined in part under such an [agreement](/usc/42/1320b–8.md?p=a-3-A); and
      - (ii) payments made as the result of a technical error.
  - (2) The [State agency](/usc/42/1320a–7a.md?p=i-1) administering the plan approved under this subchapter shall, at such times and in such form as the [Secretary](/usc/42/1301.md?p=a-6) may specify, provide information on the rates of erroneous excess payments made (or expected, with respect to future periods specified by the [Secretary](/usc/42/1301.md?p=a-6)) in connection with its [administration](/usc/42/1301.md?p=a-10) of such plan, together with any other data he requests that are reasonably necessary for him to carry out the provisions of this subsection.
  - (3)
    - (A) If a [State](#w-7-D) fails to cooperate with the [Secretary](/usc/42/1301.md?p=a-6) in providing information necessary to carry out this subsection, the [Secretary](/usc/42/1301.md?p=a-6), directly or through contractual or such other arrangements as he may find appropriate, shall establish the error rates for that [State](#w-7-D) on the basis of the best data reasonably available to him and in accordance with such techniques for sampling and estimating as he finds appropriate.
    - (B) In any case in which it is necessary for the [Secretary](/usc/42/1301.md?p=a-6) to exercise his authority under [subparagraph (A)](#u-3-A) to determine a [State](#w-7-D)’s error rates for a fiscal year, the amount that would otherwise be payable to such [State](#w-7-D) under this subchapter for quarters in such year shall be reduced by the costs incurred by the [Secretary](/usc/42/1301.md?p=a-6) in making (directly or otherwise) such determination.
  - (4) This subsection shall not apply with respect to Puerto Rico, Guam, the Virgin Islands, the Northern Mariana Islands, or American Samoa.
- (v) **Medical assistance to aliens not lawfully admitted for permanent residence—**
  - (1) Notwithstanding the preceding provisions of this section, except as provided in paragraphs [(2)](#v-2), [(4)](#v-4), and [(5)](#v-5), no payment may be made to a [State](#w-7-D) under this section for medical assistance furnished to an alien who is not lawfully admitted for permanent residence or otherwise permanently residing in the [United States](/usc/42/1301.md?p=a-2) under color of law.
  - (2) Payment shall be made under this section for care and services that are furnished to an alien described in [paragraph (1)](#v-1) only if—
    - (A) such care and services are necessary for the [treatment](/usc/42/11851.md?p=11) of an [emergency medical condition](#v-3) of the alien,
    - (B) such alien otherwise meets the eligibility requirements for medical assistance under the [State](#w-7-D) plan approved under this subchapter (other than the requirement of the receipt of aid or assistance under subchapter IV, [supplemental security income benefits](/usc/42/1382i.md?p=b-2) under subchapter XVI, or a [State supplementary payment](/usc/42/1396d.md?p=j)), and
    - (C) such care and services are not related to an [organ](/usc/42/274b.md?p=d-2) transplant procedure.
  - (3) For purposes of this subsection, the term “emergency medical condition” means a medical condition ([including](/usc/42/1301.md?p=b) emergency labor and delivery) manifesting itself by acute symptoms of sufficient severity ([including](/usc/42/1301.md?p=b) severe pain) such that the absence of immediate medical attention could reasonably be expected to result in—
    - (A) placing the patient’s health in serious jeopardy,
    - (B) serious impairment to bodily functions, or
    - (C) serious dysfunction of any bodily [organ](/usc/42/274b.md?p=d-2) or part.
  - (4)
    - (A) A [State](#w-7-D) may elect (in a plan amendment under this subchapter) to provide medical assistance under this subchapter, notwithstanding sections [1611(a)](/usc/8/1611.md?p=a), [1612(b)](/usc/8/1612.md?p=b), [1613](/usc/8/1613.md), and [1631](/usc/8/1631.md) of title 8, to [children](/usc/42/256e.md?p=g-2) and pregnant women who are lawfully residing in the [United States](/usc/42/1301.md?p=a-2) ([including](/usc/42/1301.md?p=b) battered individuals described in [section 1641(c) of title 8](/usc/8/1641.md?p=c)) and who are otherwise eligible for such assistance, within either or both of the following eligibility [categories](/usc/42/1395w–4.md?p=j-1):
      - (i) **Pregnant women—** Women during pregnancy (and during the 60-day period beginning on the last day of the pregnancy).
      - (ii) **Children—** Individuals under 21 years of age, [including](/usc/42/1301.md?p=b) optional targeted low-[income](/usc/42/292s.md?p=c-4) [children](/usc/42/256e.md?p=g-2) described in [section 1396d(u)(2)(B) of this title](/usc/42/1396d.md?p=u-2-B).
    - (B) In the case of a [State](#w-7-D) that has elected to provide medical assistance to a [category](/usc/42/1395w–4.md?p=j-1) of aliens under [subparagraph (A)](#v-4-A), no debt shall accrue under an affidavit of support against any sponsor of such an alien on the basis of provision of assistance to such [category](/usc/42/1395w–4.md?p=j-1) and the cost of such assistance shall not be considered as an unreimbursed cost.
    - (C) As part of the [State](#w-7-D)’s ongoing eligibility redetermination requirements and procedures for an individual provided medical assistance as a result of an election by the [State](#w-7-D) under [subparagraph (A)](#v-4-A), a [State](#w-7-D) shall verify that the individual continues to lawfully reside in the [United States](/usc/42/1301.md?p=a-2) using the documentation presented to the [State](#w-7-D) by the individual on initial enrollment. If the [State](#w-7-D) cannot successfully verify that the individual is lawfully residing in the [United States](/usc/42/1301.md?p=a-2) in this manner, it shall require that the individual provide the [State](#w-7-D) with further documentation or other evidence to verify that the individual is lawfully residing in the [United States](/usc/42/1301.md?p=a-2).
  - (5) Notwithstanding the preceding paragraphs of this subsection, beginning on October 1, 2026, except as provided in paragraphs [(2)](#v-2) and [(4)](#v-4), in no event shall payment be made to a [State](#w-7-D) under this section for medical assistance furnished to an individual unless such individual is—
    - (A) a resident of 1 of the 50 [States](#w-7-D), the District of Columbia, or a territory of the [United States](/usc/42/1301.md?p=a-2); and
    - (B) either—
      - (i) a citizen or national of the [United States](/usc/42/1301.md?p=a-2);
      - (ii) an alien lawfully admitted for permanent residence as an immigrant as defined by sections [1101(a)(15)](/usc/8/1101.md?p=a-15) and [1101(a)(20)](/usc/8/1101.md?p=a-20) of title 8, excluding, among others, alien visitors, tourists, diplomats, and students who enter the [United States](/usc/42/1301.md?p=a-2) temporarily with no intention of abandoning their residence in a foreign country;
      - (iii) an alien who has been granted the status of Cuban and Haitian entrant, as defined in section 501(e) of the Refugee Education Assistance Act of 1980 (Public Law 96–422); or
      - (iv) an individual who lawfully resides in the [United States](/usc/42/1301.md?p=a-2) in accordance with a [Compact](/usc/42/2021b.md?p=4) of Free Association referred to in [section 1612(b)(2)(G) of title 8](/usc/8/1612.md?p=b-2-G).
- (w) **Prohibition on use of voluntary contributions, and limitation on use of provider-specific taxes to obtain Federal financial participation under medicaid—**
  - (1)
    - (A) Notwithstanding the previous provisions of this section, for purposes of determining the amount to be paid to a [State](#w-7-D) (as defined in [paragraph (7)(D)](#w-7-D)) under [subsection (a)(1)](#a-1) for quarters in any fiscal year, the total amount expended during such fiscal year as medical assistance under the [State](#w-7-D) plan (as determined without regard to this subsection) shall be reduced by the sum of any revenues received by the [State](#w-7-D) (or by a [unit of local government](#w-7-G) in the [State](#w-7-D)) during the fiscal year—
      - (i) from [provider-related donations](#w-2-A) (as defined in [paragraph (2)(A)](#w-2-A)), other than—
        - (I) [bona fide provider-related donations](#w-2-B) (as defined in [paragraph (2)(B)](#w-2-B)), and
        - (II) donations described in [paragraph (2)(C)](#w-2-C);
      - (ii) from [health care related taxes](#w-3-A) (as defined in [paragraph (3)(A)](#w-3-A)), other than [broad-based health care related taxes](#w-3-B) (as defined in [paragraph (3)(B)](#w-3-B));
      - (iii) from a [broad-based health care related tax](#w-3-B), if there is in effect a hold harmless provision (described in [paragraph (4)](#w-4)) with respect to the [tax](#w-7-F); or
      - (iv) only with respect to [State](#w-7-D) fiscal years (or portions thereof) occurring on or after January 1, 1992, and before October 1, 1995, from [broad-based health care related taxes](#w-3-B) to the extent the amount of such [taxes](#w-7-F) collected exceeds the limit established under [paragraph (5)](#w-5).
    - (B) Notwithstanding the previous provisions of this section, for purposes of determining the amount to be paid to a [State](#w-7-D) under [subsection (a)(7)](#a-7) for all quarters in a Federal fiscal year (beginning with fiscal year 1993), the total amount expended during the fiscal year for administrative expenditures under the [State](#w-7-D) plan (as determined without regard to this subsection) shall be reduced by the sum of any revenues received by the [State](#w-7-D) (or by a [unit of local government](#w-7-G) in the [State](#w-7-D)) during such quarters from donations described in [paragraph (2)(C)](#w-2-C), to the extent the amount of such donations exceeds 10 percent of the amounts expended under the [State](#w-7-D) plan under this subchapter during the fiscal year for purposes described in paragraphs [(2)](#a-2), [(3)](#a-3), [(4)](#a-4), [(6)](#a-6), and [(7)](#a-7) of subsection (a).
    - (C)
      - (i) Except as otherwise provided in [clause (ii)](#w-1-C-ii), [subparagraph (A)(i)](#w-1-A-i) shall apply to donations received on or after January 1, 1992.
      - (ii) Subject to the limits described in [clause (iii)](#w-1-C-iii) and [subparagraph (E)](#w-1-E), [subparagraph (A)(i)](#w-1-A-i) shall not apply to donations received before the effective date specified in [subparagraph (F)](#w-1-F) if such donations are received under [programs](/usc/42/274l–1.md?p=4) in effect or as described in [State](#w-7-D) plan amendments or related documents submitted to the [Secretary](/usc/42/1301.md?p=a-6) by September 30, 1991, and applicable to [State](#w-7-D) fiscal year 1992, as demonstrated by [State](#w-7-D) plan amendments, written [agreements](/usc/42/1320b–8.md?p=a-3-A), [State](#w-7-D) budget documentation, or other documentary evidence in existence on that date.
      - (iii) In applying [clause (ii)](#w-1-C-ii) in the case of donations received in [State](#w-7-D) fiscal year 1993, the maximum amount of such donations to which such clause may be applied may not exceed the total amount of such donations received in the corresponding period in [State](#w-7-D) fiscal year 1992 (or not later than 5 days after the last day of the corresponding period).
    - (D)
      - (i) Except as otherwise provided in [clause (ii)](#w-1-D-ii), subparagraphs [(A)(ii)](#w-1-A-ii) and [(A)(iii)](#w-1-A-iii) shall apply to [taxes](#w-7-F) received on or after January 1, 1992.
      - (ii) Subparagraphs [(A)(ii)](#w-1-A-ii) and [(A)(iii)](#w-1-A-iii) shall not apply to [impermissible taxes](#w-1-D-iii) (as defined in [clause (iii)](#w-1-D-iii)) received before the effective date specified in [subparagraph (F)](#w-1-F) to the extent the [taxes](#w-7-F) ([including](/usc/42/1301.md?p=b) the [tax](#w-7-F) rate or base) were in effect, or the legislation or regulations imposing such [taxes](#w-7-F) were enacted or adopted, as of November 22, 1991.
      - (iii) In this subparagraph and [subparagraph (E)](#w-1-E), the term “impermissible tax” means a [health care related tax](#w-3-A) for which a reduction may be made under clause [(ii)](#w-1-A-ii) or [(iii)](#w-1-A-iii) of subparagraph (A).
    - (E)
      - (i) In no case may the total amount of donations and [taxes](#w-7-F) permitted under the exception provided in subparagraphs [(C)(ii)](#w-1-C-ii) and [(D)(ii)](#w-1-D-ii) for the portion of [State](#w-7-D) fiscal year 1992 occurring during calendar year 1992 exceed the limit under [paragraph (5)](#w-5) minus the total amount of [broad-based health care related taxes](#w-3-B) received in the portion of that fiscal year.
      - (ii) In no case may the total amount of donations and [taxes](#w-7-F) permitted under the exception provided in subparagraphs [(C)(ii)](#w-1-C-ii) and [(D)(ii)](#w-1-D-ii) for [State](#w-7-D) fiscal year 1993 exceed the limit under [paragraph (5)](#w-5) minus the total amount of [broad-based health care related taxes](#w-3-B) received in that fiscal year.
    - (F) In this paragraph in the case of a [State](#w-7-D)—
      - (i) except as provided in [clause (iii)](#w-1-F-iii), with a [State](#w-7-D) fiscal year beginning on or before July 1, the effective date is October 1, 1992,
      - (ii) except as provided in [clause (iii)](#w-1-F-iii), with a [State](#w-7-D) fiscal year that begins after July 1, the effective date is January 1, 1993, or
      - (iii) with a [State](#w-7-D) legislature which is not scheduled to have a regular legislative session in 1992, with a [State](#w-7-D) legislature which is not scheduled to have a regular legislative session in 1993, or with a provider-specific [tax](#w-7-F) enacted on November 4, 1991, the effective date is July 1, 1993.
  - (2)
    - (A) In this subsection (except as provided in [paragraph (6)](#w-6)), the term “provider-related donation” means any donation or other voluntary payment (whether in cash or in kind) made (directly or indirectly) to a [State](#w-7-D) or [unit of local government](#w-7-G) by—
      - (i) a [health care provider](#w-7-B) (as defined in [paragraph (7)(B)](#w-7-B)),
      - (ii) an entity related to a [health care provider](#w-7-B) (as defined in [paragraph (7)(C)](#w-7-C)), or
      - (iii) an entity providing goods or services under the [State](#w-7-D) plan for which payment is made to the [State](#w-7-D) under paragraph [(2)](#a-2), [(3)](#a-3), [(4)](#a-4), [(6)](#a-6), or [(7)](#a-7) of subsection (a).
    - (B) For purposes of [paragraph (1)(A)(i)(I)](#w-1-A-i-I), the term “bona fide provider-related donation” means a [provider-related donation](#w-2-A) that has no direct or indirect relationship (as determined by the [Secretary](/usc/42/1301.md?p=a-6)) to payments made under this subchapter to that provider, to providers furnishing the same class of items and services as that provider, or to any related entity, as established by the [State](#w-7-D) to the satisfaction of the [Secretary](/usc/42/1301.md?p=a-6). The [Secretary](/usc/42/1301.md?p=a-6) may by regulation specify types of [provider-related donations](#w-2-A) described in the previous sentence that will be considered to be bona fide provider-related donations.
    - (C) For purposes of [paragraph (1)(A)(i)(II)](#w-1-A-i-II), donations described in this subparagraph are [funds](/usc/42/12854.md?p=3) expended by a [hospital](/usc/42/1395dd.md?p=e-5), clinic, or similar entity for the direct cost ([including](/usc/42/1301.md?p=b) costs of [training](/usc/42/285e–2.md?p=b-2) and of preparing and distributing outreach materials) of [State](#w-7-D) or local [agency](/usc/42/1397n–12.md?p=1) personnel who are stationed at the [hospital](/usc/42/1395dd.md?p=e-5), clinic, or entity to determine the eligibility of individuals for medical assistance under this subchapter and to provide outreach services to eligible or potentially [eligible individuals](/usc/42/239.md?p=a-6).
  - (3)
    - (A) In this subsection (except as provided in [paragraph (6)](#w-6)), the term “health care related tax” means a [tax](#w-7-F) (as defined in [paragraph (7)(F)](#w-7-F)) that—
      - (i) is related to health care items or services, or to the provision of, the authority to provide, or payment for, such items or services, or
      - (ii) is not limited to such items or services but provides for [treatment](/usc/42/11851.md?p=11) of individuals or entities that are providing or paying for such items or services that is different from the [treatment](/usc/42/11851.md?p=11) provided to other individuals or entities.

      In applying [clause (i)](#w-3-A-i), a [tax](#w-7-F) is considered to relate to health care items or services if at least 85 percent of the burden of such [tax](#w-7-F) falls on [health care providers](#w-7-B).

    - (B) In this subsection, the term “broad-based health care related tax” means a [health care related tax](#w-3-A) which is imposed with respect to a class of health care items or services (as described in [paragraph (7)(A)](#w-7-A)) or with respect to providers of such items or services and which, except as provided in subparagraphs [(D)](#w-3-D), [(E)](#w-3-E), and [(F)](#w-3-F)—
      - (i) is imposed at least with respect to all items or services in the class furnished by all non-Federal, nonpublic providers in the [State](#w-7-D) (or, in the case of a [tax](#w-7-F) imposed by a [unit of local government](#w-7-G), the area over which the [unit](/usc/42/1395w–114b.md?p=g-2) has jurisdiction) or is imposed with respect to all non-Federal, nonpublic providers in the class; and
      - (ii) is imposed uniformly (in accordance with [subparagraph (C)](#w-3-C)).
    - (C)
      - (i) Subject to [clause (ii)](#w-3-C-ii), for purposes of [subparagraph (B)(ii)](#w-3-B-ii), a [tax](#w-7-F) is considered to be imposed uniformly if—
        - (I) in the case of a [tax](#w-7-F) consisting of a licensing fee or similar [tax](#w-7-F) on a class of health care items or services (or providers of such items or services), the amount of the [tax](#w-7-F) imposed is the same for every provider providing items or services within the class;
        - (II) in the case of a [tax](#w-7-F) consisting of a licensing fee or similar [tax](#w-7-F) imposed on a class of health care items or services (or providers of such services) on the basis of the number of beds (licensed or otherwise) of the provider, the amount of the [tax](#w-7-F) is the same for each bed of each provider of such items or services in the class;
        - (III) in the case of a [tax](#w-7-F) based on revenues or receipts with respect to a class of items or services (or providers of items or services) the [tax](#w-7-F) is imposed at a uniform rate for all items and services (or providers of such items or services) in the class on all the gross revenues or receipts, or net operating revenues, relating to the provision of all such items or services (or all such providers) in the [State](#w-7-D) (or, in the case of a [tax](#w-7-F) imposed by a [unit of local government](#w-7-G) within the [State](#w-7-D), in the area over which the [unit](/usc/42/1395w–114b.md?p=g-2) has jurisdiction); or
        - (IV) in the case of any other [tax](#w-7-F), the [State](#w-7-D) establishes to the satisfaction of the [Secretary](/usc/42/1301.md?p=a-6) that the [tax](#w-7-F) is imposed uniformly.
      - (ii) Subject to subparagraphs [(D)](#w-3-D) and [(E)](#w-3-E), a [tax](#w-7-F) imposed with respect to a class of health care items and services is not considered to be imposed uniformly if the [tax](#w-7-F) provides for any credits, exclusions, or deductions which have as their purpose or effect the return to providers of all or a portion of the [tax](#w-7-F) paid in a manner that is inconsistent with subclauses [(I)](#w-3-E-ii-I) and [(II)](#w-3-E-ii-II) of subparagraph (E)(ii) or provides for a hold harmless provision described in [paragraph (4)](#w-4).
    - (D) A [tax](#w-7-F) imposed with respect to a class of health care items and services is considered to be imposed uniformly—
      - (i) notwithstanding that the [tax](#w-7-F) is not imposed with respect to items or services (or the providers thereof) for which payment is made under a [State](#w-7-D) plan under this subchapter or subchapter XVIII, or
      - (ii) in the case of a [tax](#w-7-F) described in [subparagraph (C)(i)(III)](#w-3-C-i-III), notwithstanding that the [tax](#w-7-F) provides for exclusion (in whole or in part) of revenues or receipts from a [State](#w-7-D) plan under this subchapter or subchapter XVIII.
    - (E)
      - (i) A [State](#w-7-D) may submit an application to the [Secretary](/usc/42/1301.md?p=a-6) requesting that the [Secretary](/usc/42/1301.md?p=a-6) treat a [tax](#w-7-F) as a [broad-based health care related tax](#w-3-B), notwithstanding that the [tax](#w-7-F) does not apply to all health care items or services in class (or all providers of such items and services), provides for a credit, deduction, or exclusion, is not applied uniformly, or otherwise does not meet the requirements of subparagraph [(B)](#w-3-B) or [(C)](#w-3-C). Permissible waivers may include exemptions for rural or sole-community providers.
      - (ii) The [Secretary](/usc/42/1301.md?p=a-6) shall approve such an application if the [State](#w-7-D) establishes to the satisfaction of the [Secretary](/usc/42/1301.md?p=a-6) that—
        - (I) the net impact of the [tax](#w-7-F) and associated expenditures under this subchapter as proposed by the [State](#w-7-D) is generally redistributive in nature, and
        - (II) the amount of the [tax](#w-7-F) is not directly correlated to payments under this subchapter for items or services with respect to which the [tax](#w-7-F) is imposed.
      - (iii) For purposes of [clause (ii)(I)](#w-3-E-ii-I), a [tax](#w-7-F) is not considered to be generally redistributive if any of the following conditions apply:
        - (I) Within a permissible class, the [tax](#w-7-F) rate imposed on any taxpayer or [tax rate group](#w-7-J) (as defined in [paragraph (7)(J)](#w-7-J)) explicitly defined by its relatively lower volume or percentage of [Medicaid taxable units](#w-7-H) (as defined in [paragraph (7)(H)](#w-7-H)) is lower than the [tax](#w-7-F) rate imposed on any other taxpayer or [tax rate group](#w-7-J) explicitly defined by its relatively higher volume or percentage of [Medicaid taxable units](#w-7-H).
        - (II) Within a permissible class, the [tax](#w-7-F) rate imposed on any taxpayer or [tax rate group](#w-7-J) (as so defined) based upon its [Medicaid taxable units](#w-7-H) (as so defined) is higher than the [tax](#w-7-F) rate imposed on any taxpayer or [tax rate group](#w-7-J) based upon its [non-Medicaid taxable unit](#w-7-I) (as defined in [paragraph (7)(I)](#w-7-I)).
        - (III) The [tax](#w-7-F) excludes or imposes a lower [tax](#w-7-F) rate on a taxpayer or [tax rate group](#w-7-J) (as so defined) based on or defined by any description that results in the same effect as described in subclause [(I)](#w-3-E-iii-I) or [(II)](#w-3-E-iii-II) for a taxpayer or [tax rate group](#w-7-J). Characteristics that may indicate such type of exclusion include the use of terminology to establish a [tax rate group](#w-7-J)—
          - (aa) based on payments or expenditures made under the [program](/usc/42/274l–1.md?p=4) under this subchapter without mentioning the term “Medicaid” (or any similar term) to accomplish the same effect as described in subclause [(I)](#w-3-E-iii-I) or [(II)](#w-3-E-iii-II); or
          - (bb) that closely approximates a taxpayer or [tax rate group](#w-7-J) under the [program](/usc/42/274l–1.md?p=4) under this subchapter, to the same effect as described in subclause [(I)](#w-3-E-iii-I) or [(II)](#w-3-E-iii-II).

        The [Secretary](/usc/42/1301.md?p=a-6) shall by regulation specify types of credits, exclusions, and deductions that will be considered to meet the requirements of this subparagraph.

    - (F) In no case shall a [tax](#w-7-F) not qualify as a [broad-based health care related tax](#w-3-B) under this paragraph because it does not apply to a [hospital](/usc/42/1395dd.md?p=e-5) that is described in section 501(c)(3) of the Internal Revenue Code of 1986 and exempt from taxation under [section 501(a)](/usc/42/501.md) of such Code and that does not accept payment under the [State](#w-7-D) plan under this subchapter or under subchapter XVIII.
  - (4) For purposes of [paragraph (1)(A)(iii)](#w-1-A-iii), there is in effect a hold harmless provision with respect to a [broad-based health care related tax](#w-3-B) imposed with respect to a class of items or services if the [Secretary](/usc/42/1301.md?p=a-6) determines that any of the following applies:
    - (A) The [State](#w-7-D) or other [unit](/usc/42/1395w–114b.md?p=g-2) of government imposing the [tax](#w-7-F) provides (directly or indirectly) for a payment (other than under this subchapter) to taxpayers and the amount of such payment is positively correlated either to the amount of such [tax](#w-7-F) or to the difference between the amount of the [tax](#w-7-F) and the amount of payment under the [State](#w-7-D) plan.
    - (B) All or any portion of the payment made under this subchapter to the taxpayer varies based only upon the amount of the total [tax](#w-7-F) paid.
    - (C)
      - (i) The [State](#w-7-D) or other [unit](/usc/42/1395w–114b.md?p=g-2) of government imposing the [tax](#w-7-F) provides (directly or indirectly) for any payment, offset, or waiver that guarantees to hold taxpayers harmless for any portion of the costs of the [tax](#w-7-F).
      - (ii) For purposes of [clause (i)](#w-4-C-i), a determination of the existence of an indirect guarantee shall be made under paragraph (3)(i) of section 433.68(f) of title 42, Code of Federal Regulations, as in effect on November 1, 2006, except that for portions of fiscal years beginning on or after January 1, 2008, and before October 1, 2011, “5.5 percent” shall be substituted for “6 percent” each place it appears, and for fiscal years beginning on or after October 1, 2026, the applicable percent determined under [subparagraph (D)](#w-4-D) shall be substituted for “6 percent” each place it appears.
    - (D)
      - (i) For purposes of [subparagraph (C)(ii)](#w-4-C-ii), the applicable percent determined under this subparagraph is—
        - (I) in the case of a [non-expansion State](#w-4-D-iii-II) or [unit of local government](#w-7-G) in such [State](#w-7-D) and a class of health care items or services described in [section 433.56(a) of title 42, Code of Federal Regulations](/cfr/42/433.56.md?p=a) (as in effect on May 1, 2025)—
          - (aa) if, on July 4, 2025, the [non-expansion State](#w-4-D-iii-II) or [unit of local government](#w-7-G) in such [State](#w-7-D) has enacted a [tax](#w-7-F) and imposes such [tax](#w-7-F) on such class and the [Secretary](/usc/42/1301.md?p=a-6) determines that the [tax](#w-7-F) is within the hold harmless threshold as of that date, the applicable percent of net patient revenue attributable to such class that has been so determined; and
          - (bb) if, on July 4, 2025, the [non-expansion State](#w-4-D-iii-II) or [unit of local government](#w-7-G) in such [State](#w-7-D) has not enacted or does not impose a [tax](#w-7-F) with respect to such class, 0 percent; and
        - (II) in the case of an [expansion State](#w-4-D-iii-I) or [unit of local government](#w-7-G) in such [State](#w-7-D) and a class of health care items or services described in [section 433.56(a) of title 42, Code of Federal Regulations](/cfr/42/433.56.md?p=a) (as in effect on May 1, 2025), subject to [clause (iv)](#w-4-D-iv)—
          - (aa) if, on July 4, 2025, the [expansion State](#w-4-D-iii-I) or [unit of local government](#w-7-G) in such [State](#w-7-D) has enacted a [tax](#w-7-F) and imposes such [tax](#w-7-F) on such class and the [Secretary](/usc/42/1301.md?p=a-6) determines that the [tax](#w-7-F) is within the hold harmless threshold as of that date, the lower of—
            - (AA) the applicable percent of net patient revenue attributable to such class that has been so determined; and
            - (BB) the applicable percent specified in [clause (ii)](#w-4-D-ii) for the fiscal year; and
          - (bb) if, on July 4, 2025, the [expansion State](#w-4-D-iii-I) or [unit of local government](#w-7-G) in such [State](#w-7-D) has not enacted or does not impose a [tax](#w-7-F) with respect to such class, 0 percent.
      - (ii) For purposes of [clause (i)(II)(aa)(BB)](#w-4-D-i-II-aa-BB), the applicable percent is—
        - (I) for fiscal year 2028, 5.5 percent;
        - (II) for fiscal year 2029, 5 percent;
        - (III) for fiscal year 2030, 4.5 percent;
        - (IV) for fiscal year 2031, 4 percent; and
        - (V) for fiscal year 2032 and each subsequent fiscal year, 3.5 percent.
      - (iii) For purposes of [clause (i)](#w-4-D-i):
        - (I) **Expansion State—** The term “expansion State” means a [State](#w-7-D) that, beginning on January 1, 2014, or on any date thereafter, elects to provide medical assistance to all individuals described in [section 1396a(a)(10)(A)(i)(VIII) of this title](/usc/42/1396a.md?p=a-10-A-i-VIII) under the [State](#w-7-D) plan under this subchapter or under a waiver of such plan.
        - (II) **Non-expansion State—** The term “non-expansion State” means a [State](#w-7-D) that is not an [expansion State](#w-4-D-iii-I).
      - (iv) In the case of a [tax](#w-7-F) of an [expansion State](#w-4-D-iii-I) or [unit of local government](#w-7-G) in such [State](#w-7-D) in effect on July 4, 2025, that applies to a class of health care items or services that is described in paragraph (3) or (4) of section 433.56(a) of title 42, Code of Federal Regulations (as in effect on May 1, 2025), and for which, on such date, is within the hold harmless threshold (as determined by the [Secretary](/usc/42/1301.md?p=a-6)), the applicable percent of net patient revenue attributable to such class that has been so determined shall apply for a fiscal year instead of the applicable percent specified in [clause (ii)](#w-4-D-ii) for the fiscal year.

    The provisions of this paragraph shall not prevent use of the [tax](#w-7-F) to reimburse [health care providers](#w-7-B) in a class for expenditures under this subchapter nor preclude [States](#w-7-D) from relying on such reimbursement to justify or explain the [tax](#w-7-F) in the legislative process.

  - (5)
    - (A) For purposes of this subsection, the limit under this subparagraph with respect to a [State](#w-7-D) is an amount equal to 25 percent (or, if greater, the [State base percentage](#w-5-B-i), as defined in [subparagraph (B)](#w-5-B)) of the non-Federal share of the total amount expended under the [State](#w-7-D) plan during a [State](#w-7-D) fiscal year (or portion thereof), as it would be determined pursuant to [paragraph (1)(A)](#w-1-A) without regard to [paragraph (1)(A)(iv)](#w-1-A-iv).
    - (B)
      - (i) In [subparagraph (A)](#w-5-A), the term “State base percentage” means, with respect to a [State](#w-7-D), an amount (expressed as a percentage) equal to—
        - (I) the total of the amount of [health care related taxes](#w-3-A) (whether or not broad-based) and the amount of [provider-related donations](#w-2-A) (whether or not bona fide) projected to be collected (in accordance with [clause (ii)](#w-5-B-ii)) during [State](#w-7-D) fiscal year 1992, divided by
        - (II) the non-Federal share of the total amount estimated to be expended under the [State](#w-7-D) plan during such [State](#w-7-D) fiscal year.
      - (ii) For purposes of [clause (i)(I)](#w-5-B-i-I), in the case of a [tax](#w-7-F) that is not in effect throughout [State](#w-7-D) fiscal year 1992 or the rate (or base) of which is increased during such fiscal year, the [Secretary](/usc/42/1301.md?p=a-6) shall [project](/usc/42/11360.md?p=20) the amount to be collected during such fiscal year as if the [tax](#w-7-F) (or increase) were in effect during the entire [State](#w-7-D) fiscal year.
    - (C)
      - (i) The total amount of [health care related taxes](#w-3-A) under [subparagraph (B)(i)(I)](#w-5-B-i-I) shall be determined by the [Secretary](/usc/42/1301.md?p=a-6) based on only those [taxes](#w-7-F) ([including](/usc/42/1301.md?p=b) the [tax](#w-7-F) rate or base) which were in effect, or for which legislation or regulations imposing such [taxes](#w-7-F) were enacted or adopted, as of November 22, 1991.
      - (ii) The amount of [provider-related donations](#w-2-A) under [subparagraph (B)(i)(I)](#w-5-B-i-I) shall be determined by the [Secretary](/usc/42/1301.md?p=a-6) based on [programs](/usc/42/274l–1.md?p=4) in effect on September 30, 1991, and applicable to [State](#w-7-D) fiscal year 1992, as demonstrated by [State](#w-7-D) plan amendments, written [agreements](/usc/42/1320b–8.md?p=a-3-A), [State](#w-7-D) budget documentation, or other documentary evidence in existence on that date.
      - (iii) The amount of expenditures described in [subparagraph (B)(i)(II)](#w-5-B-i-II) shall be determined by the [Secretary](/usc/42/1301.md?p=a-6) based on the best data available as of December 12, 1991.
  - (6)
    - (A) Notwithstanding the provisions of this subsection, the [Secretary](/usc/42/1301.md?p=a-6) may not restrict [States](#w-7-D)’ use of [funds](/usc/42/12854.md?p=3) where such [funds](/usc/42/12854.md?p=3) are derived from [State](#w-7-D) or local [taxes](#w-7-F) (or [funds](/usc/42/12854.md?p=3) appropriated to [State](#w-7-D) university teaching [hospitals](/usc/42/1395dd.md?p=e-5)) transferred from or certified by [units](/usc/42/1395w–114b.md?p=g-2) of government within a [State](#w-7-D) as the non-Federal share of expenditures under this subchapter, regardless of whether the [unit](/usc/42/1395w–114b.md?p=g-2) of government is also a [health care provider](#w-7-B), except as provided in [section 1396a(a)(2) of this title](/usc/42/1396a.md?p=a-2), unless the transferred [funds](/usc/42/12854.md?p=3) are derived by the [unit](/usc/42/1395w–114b.md?p=g-2) of government from donations or [taxes](#w-7-F) that would not otherwise be recognized as the non-Federal share under this section.
    - (B) For purposes of this subsection, [funds](/usc/42/12854.md?p=3) the use of which the [Secretary](/usc/42/1301.md?p=a-6) may not restrict under [subparagraph (A)](#w-6-A) shall not be considered to be a [provider-related donation](#w-2-A) or a [health care related tax](#w-3-A).
  - (7) For purposes of this subsection:
    - (A) Each of the following shall be considered a separate class of health care items and services:
      - (i) Inpatient [hospital](/usc/42/1395dd.md?p=e-5) services.
      - (ii) Outpatient [hospital](/usc/42/1395dd.md?p=e-5) services.
      - (iii) [Nursing facility services](/usc/42/1396d.md?p=f) (other than services of intermediate care [facilities](/usc/42/11049.md?p=4) for the mentally retarded).
      - (iv) Services of intermediate care [facilities](/usc/42/11049.md?p=4) for the mentally retarded.
      - (v) [Physicians](/usc/42/1396d.md?p=e)’ services.
      - (vi) [Home health care services](#l-5-B).
      - (vii) Outpatient prescription [drugs](/usc/42/282.md?p=j-1-A-vii).
      - (viii) Services of managed care organizations ([including](/usc/42/1301.md?p=b) health maintenance organizations, preferred provider organizations, and such other similar organizations as the [Secretary](/usc/42/1301.md?p=a-6) may specify by regulation).
      - (ix) Such other classification of health care items and services consistent with this subparagraph as the [Secretary](/usc/42/1301.md?p=a-6) may establish by regulation.
    - (B) The term “health care provider” means an individual or [person](/usc/42/1301.md?p=a-3) that receives payments for the provision of health care items or services.
    - (C) An entity is considered to be “related” to a [health care provider](#w-7-B) if the entity—
      - (i) is an organization, association, [corporation](/usc/42/1301.md?p=a-4) or partnership formed by or on behalf of [health care providers](#w-7-B);
      - (ii) is a [person with an ownership or control interest](/usc/42/14902.md?p=15) (as defined in [section 1320a–3(a)(3) of this title](/usc/42/1320a–3.md?p=a-3)) in the provider;
      - (iii) is the [employee](/usc/42/1320a–7h.md?p=e-7), spouse, [parent](/usc/42/1396a.md?p=k-3), [child](/usc/42/416.md?p=e), or sibling of the provider (or of a [person](/usc/42/1301.md?p=a-3) described in [clause (ii)](#w-7-C-ii)); or
      - (iv) has a similar, close relationship (as defined in regulations) to the provider.
    - (D) The term “State” means only the 50 States and the District of Columbia but does not include any State whose entire [program](/usc/42/274l–1.md?p=4) under this subchapter is operated under a waiver granted under [section 1315 of this title](/usc/42/1315.md).
    - (E) The “[State](#w-7-D) fiscal year” means, with respect to a specified year, a [State](#w-7-D) fiscal year ending in that specified year.
    - (F) The term “tax” [includes](/usc/42/1301.md?p=b) any licensing fee, assessment, or other mandatory payment, but does not include payment of a criminal or civil fine or penalty (other than a fine or penalty imposed in lieu of or instead of a fee, assessment, or other mandatory payment).
    - (G) The term “unit of local government” means, with respect to a [State](#w-7-D), a [city](/usc/42/12902.md?p=11), county, special purpose district, or other governmental [unit](/usc/42/1395w–114b.md?p=g-2) in the [State](#w-7-D).
    - (H) The term “Medicaid taxable unit” means a [unit](/usc/42/1395w–114b.md?p=g-2) that is being taxed within a [health care related tax](#w-3-A) that is applicable to the [program](/usc/42/274l–1.md?p=4) under this subchapter. Such term [includes](/usc/42/1301.md?p=b) a [unit](/usc/42/1395w–114b.md?p=g-2) that is used as the basis for—
      - (i) payment under the [program](/usc/42/274l–1.md?p=4) under this subchapter (such as [Medicaid](#w-3-E-iii-III-aa) bed days);
      - (ii) [Medicaid](#w-3-E-iii-III-aa) revenue;
      - (iii) costs associated with the [program](/usc/42/274l–1.md?p=4) under this subchapter (such as [Medicaid](#w-3-E-iii-III-aa) charges, [claims](/usc/42/1320a–7a.md?p=i-2), or expenditures); and
      - (iv) other [units](/usc/42/1395w–114b.md?p=g-2) associated with the [program](/usc/42/274l–1.md?p=4) under this subchapter, as determined by the [Secretary](/usc/42/1301.md?p=a-6).
    - (I) The term “non-Medicaid taxable unit” means a [unit](/usc/42/1395w–114b.md?p=g-2) that is being taxed within a [health care related tax](#w-3-A) that is not applicable to the [program](/usc/42/274l–1.md?p=4) under this subchapter. Such term [includes](/usc/42/1301.md?p=b) a [unit](/usc/42/1395w–114b.md?p=g-2) that is used as the basis for—
      - (i) payment by non-[Medicaid](#w-3-E-iii-III-aa) payers (such as non-[Medicaid](#w-3-E-iii-III-aa) bed days);
      - (ii) non-[Medicaid](#w-3-E-iii-III-aa) revenue;
      - (iii) costs that are not associated with the [program](/usc/42/274l–1.md?p=4) under this subchapter (such as non-[Medicaid](#w-3-E-iii-III-aa) charges, non-[Medicaid](#w-3-E-iii-III-aa) [claims](/usc/42/1320a–7a.md?p=i-2), or non-[Medicaid](#w-3-E-iii-III-aa) expenditures); and
      - (iv) other [units](/usc/42/1395w–114b.md?p=g-2) not associated with the [program](/usc/42/274l–1.md?p=4) under this subchapter, as determined by the [Secretary](/usc/42/1301.md?p=a-6).
    - (J) The term “tax rate group” means a group of entities contained within a permissible class of a [health care related tax](#w-3-A) that are taxed at the same rate.
- (x) **Satisfactory documentary evidence of citizenship or nationality by individual declaring to be citizen or national of United States—**
  - (1) For purposes of [section 1396a(a)(46)(B)(i) of this title](/usc/42/1396a.md?p=a-46-B-i), the requirement of this subsection is, with respect to an individual declaring to be a citizen or national of the [United States](/usc/42/1301.md?p=a-2), that, subject to [paragraph (2)](#x-2), there is presented [satisfactory documentary evidence of citizenship or nationality](#x-3-A) (as defined in [paragraph (3)](#x-3)) of the individual.
  - (2) The requirement of [paragraph (1)](#x-1) shall not apply to an individual declaring to be a citizen or national of the [United States](/usc/42/1301.md?p=a-2) who is eligible for medical assistance under this subchapter—
    - (A) and is entitled to or enrolled for benefits under any part of subchapter XVIII;
    - (B) and is receiving—
      - (i) disability insurance benefits under [section 423 of this title](/usc/42/423.md) or monthly insurance benefits under [section 402 of this title](/usc/42/402.md) based on such individual’s disability (as defined in [section 423(d) of this title](/usc/42/423.md?p=d)); or
      - (ii) [supplemental security income benefits](/usc/42/1382i.md?p=b-2) under subchapter XVI;
    - (C) and with respect to whom—
      - (i) [child](/usc/42/416.md?p=e) welfare services are made available under part B of subchapter IV on the basis of being a [child](/usc/42/416.md?p=e) in foster care; or
      - (ii) adoption or foster care assistance is made available under part E of subchapter IV;
    - (D) pursuant to the application of [section 1396a(e)(4) of this title](/usc/42/1396a.md?p=e-4) (and, in the case of an individual who is eligible for medical assistance on such basis, the individual shall be deemed to have provided [satisfactory documentary evidence of citizenship or nationality](#x-3-A) and shall not be required to provide further documentary evidence on any date that occurs during or after the period in which the individual is eligible for medical assistance on such basis); or
    - (E) on such basis as the [Secretary](/usc/42/1301.md?p=a-6) may specify under which [satisfactory documentary evidence of citizenship or nationality](#x-3-A) has been previously presented.
  - (3)
    - (A) For purposes of this subsection, the term “satisfactory documentary evidence of citizenship or nationality” means—
      - (i) any document described in [subparagraph (B)](#x-3-B); or
      - (ii) a document described in [subparagraph (C)](#x-3-C) and a document described in [subparagraph (D)](#x-3-D).
    - (B) The following are documents described in this subparagraph:
      - (i) A [United States](/usc/42/1301.md?p=a-2) passport.
      - (ii) Form N–550 or N–570 (Certificate of Naturalization).
      - (iii) Form N–560 or N–561 (Certificate of [United States](/usc/42/1301.md?p=a-2) Citizenship).
      - (iv) A valid [State](#w-7-D)-issued driver’s license or other identity document described in [section 1324a(b)(1)(D) of title 8](/usc/8/1324a.md?p=b-1-D), but only if the [State](#w-7-D) issuing the license or such document requires proof of [United States](/usc/42/1301.md?p=a-2) citizenship before issuance of such license or document or obtains a [social](/usc/42/1397j.md?p=20) security number from the applicant and verifies before certification that such number is valid and assigned to the applicant who is a citizen.
      - (v)
        - (I) Except as provided in [subclause (II)](#x-3-B-v-II), a document issued by a federally recognized [Indian tribe](/usc/42/1397j.md?p=12-A) evidencing membership or enrollment in, or affiliation with, such tribe (such as a tribal enrollment card or certificate of degree of [Indian](/usc/42/6862.md?p=6) blood).
        - (II) With respect to those federally recognized [Indian tribes](/usc/42/1397j.md?p=12-A) located within [States](#w-7-D) having an international border whose membership [includes](/usc/42/1301.md?p=b) individuals who are not citizens of the [United States](/usc/42/1301.md?p=a-2), the [Secretary](/usc/42/1301.md?p=a-6) shall, after consulting with such tribes, issue regulations authorizing the presentation of such other forms of documentation ([including](/usc/42/1301.md?p=b) tribal documentation, if appropriate) that the [Secretary](/usc/42/1301.md?p=a-6) determines to be [satisfactory documentary evidence of citizenship or nationality](#x-3-A) for purposes of satisfying the requirement of this subsection.
      - (vi) Such other document as the [Secretary](/usc/42/1301.md?p=a-6) may specify, by regulation, that provides proof of [United States](/usc/42/1301.md?p=a-2) citizenship or nationality and that provides a reliable means of documentation of personal identity.
    - (C) The following are documents described in this subparagraph:
      - (i) A certificate of birth in the [United States](/usc/42/1301.md?p=a-2).
      - (ii) Form FS–545 or Form DS–1350 (Certification of Birth Abroad).
      - (iii) Form I–197 ([United States](/usc/42/1301.md?p=a-2) Citizen Identification Card).
      - (iv) Form FS–240 (Report of Birth Abroad of a Citizen of the [United States](/usc/42/1301.md?p=a-2)).
      - (v) Such other document (not described in [subparagraph (B)(iv)](#x-3-B-iv)) as the [Secretary](/usc/42/1301.md?p=a-6) may specify that provides proof of [United States](/usc/42/1301.md?p=a-2) citizenship or nationality.
    - (D) The following are documents described in this subparagraph:
      - (i) Any identity document described in [section 1324a(b)(1)(D) of title 8](/usc/8/1324a.md?p=b-1-D).
      - (ii) Any other documentation of personal identity of such other type as the [Secretary](/usc/42/1301.md?p=a-6) finds, by regulation, provides a reliable means of identification.
    - (E) A reference in this paragraph to a form [includes](/usc/42/1301.md?p=b) a reference to any successor form.
  - (4) In the case of an individual declaring to be a citizen or national of the [United States](/usc/42/1301.md?p=a-2) with respect to whom a [State](#w-7-D) requires the presentation of [satisfactory documentary evidence of citizenship or nationality](#x-3-A) under [section 1396a(a)(46)(B)(i) of this title](/usc/42/1396a.md?p=a-46-B-i), the individual shall be provided at least the reasonable opportunity to present [satisfactory documentary evidence of citizenship or nationality](#x-3-A) under this subsection as is provided under clauses (i) and (ii) of [section 1320b–7(d)(4)(A) of this title](/usc/42/1320b–7.md?p=d-4-A) to an individual for the submittal to the [State](#w-7-D) of evidence indicating a satisfactory immigration status.
  - (5) Nothing in subparagraph (A) or (B) of [section 1396a(a)(46) of this title](/usc/42/1396a.md?p=a-46), the preceding paragraphs of this subsection, or the Deficit Reduction Act of 2005, [including](/usc/42/1301.md?p=b) section 6036 of such Act, shall be construed as changing the requirement of [section 1396a(e)(4) of this title](/usc/42/1396a.md?p=e-4) that a [child](/usc/42/416.md?p=e) born in the [United States](/usc/42/1301.md?p=a-2) to an alien mother for whom medical assistance for the delivery of such [child](/usc/42/416.md?p=e) is available as [treatment](/usc/42/11851.md?p=11) of an [emergency medical condition](/usc/42/300gg–19a.md?p=b-2-A) pursuant to [subsection (v)](#v) shall be deemed eligible for medical assistance during the first year of such [child](/usc/42/416.md?p=e)’s life.
- (y) **Payments for establishment of alternate non-emergency services providers—**
  - (1) **Payments—** In addition to the payments otherwise provided under [subsection (a)](#a), subject to [paragraph (2)](#y-2), the [Secretary](/usc/42/1301.md?p=a-6) shall provide for payments to [States](#w-7-D) under such subsection for the establishment of alternate non-emergency service providers (as defined in [section 1396o–1(e)(5)(B)](/usc/42/1396o–1.md)[^12] of this title), or networks of such providers.
  - (2) **Limitation—** The total amount of payments under this subsection shall not exceed $50,000,000 during the 4-year period beginning with 2006. This subsection constitutes budget authority in advance of appropriations Acts and represents the obligation of the [Secretary](/usc/42/1301.md?p=a-6) to provide for the payment of amounts provided under this subsection.
  - (3) **Preference—** In providing for payments to [States](#w-7-D) under this subsection, the [Secretary](/usc/42/1301.md?p=a-6) shall provide preference to [States](#w-7-D) that establish, or provide for, alternate [non-emergency services](/usc/42/1396o–1.md?p=e-4-A) providers or networks of such providers that—
    - (A) serve rural or underserved areas where beneficiaries under this subchapter may not have regular access to providers of primary care services; or
    - (B) are in partnership with local community [hospitals](/usc/42/1395dd.md?p=e-5).
  - (4) **Form and manner of payment—** Payment to a [State](#w-7-D) under this subsection shall be made only upon the filing of such application in such form and in such manner as the [Secretary](/usc/42/1301.md?p=a-6) shall specify. Payment to a [State](#w-7-D) under this subsection shall be made in the same manner as other payments under [subsection (a)](#a).
- (z) **Medicaid transformation payments—**
  - (1) **In general—** In addition to the payments provided under [subsection (a)](#a), subject to [paragraph (4)](#z-4), the [Secretary](/usc/42/1301.md?p=a-6) shall provide for payments to [States](#w-7-D) for the adoption of innovative methods to improve the effectiveness and efficiency in providing medical assistance under this subchapter.
  - (2) **Permissible uses of funds—** The following are examples of innovative methods for which [funds](/usc/42/12854.md?p=3) provided under this subsection may be used:
    - (A) Methods for reducing patient error rates through the implementation and use of electronic health records, electronic clinical decision support tools, or e-prescribing [programs](/usc/42/274l–1.md?p=4).
    - (B) Methods for improving rates of collection from estates of amounts owed under this subchapter.
    - (C) Methods for reducing waste, fraud, and [abuse](/usc/42/1397j.md?p=1) under the [program](/usc/42/274l–1.md?p=4) under this subchapter, such as reducing improper payment rates as measured by annual payment error rate measurement (PERM) [project](/usc/42/11360.md?p=20) rates.
    - (D) Implementation of a [medication risk management program](#z-5-A) as part of a [drug](/usc/42/282.md?p=j-1-A-vii) use review [program](/usc/42/274l–1.md?p=4) under [section 1396r–8(g) of this title](/usc/42/1396r–8.md?p=g).
    - (E) Methods in reducing, in clinically appropriate ways, expenditures under this subchapter for [covered outpatient drugs](/usc/42/1396r–8.md?p=k-3), particularly in the [categories](/usc/42/1395w–4.md?p=j-1) of greatest [drug](/usc/42/282.md?p=j-1-A-vii) utilization, by increasing the utilization of generic [drugs](/usc/42/282.md?p=j-1-A-vii) through the use of education [programs](/usc/42/274l–1.md?p=4) and other incentives to promote greater use of generic [drugs](/usc/42/282.md?p=j-1-A-vii).
    - (F) Methods for improving access to primary and specialty [physician](/usc/42/1301.md?p=a-7) care for the uninsured using integrated university-based [hospital](/usc/42/1395dd.md?p=e-5) and clinic systems.
  - (3) **Application; terms and conditions—**
    - (A) **In general—** No payments shall be made to a [State](#w-7-D) under this subsection unless the [State](#w-7-D) applies to the [Secretary](/usc/42/1301.md?p=a-6) for such payments in a form, manner, and time specified by the [Secretary](/usc/42/1301.md?p=a-6).
    - (B) **Terms and conditions—** Such payments are made under such terms and conditions consistent with this subsection as the [Secretary](/usc/42/1301.md?p=a-6) prescribes.
    - (C) **Annual report—** Payment to a [State](#w-7-D) under this subsection is conditioned on the [State](#w-7-D) submitting to the [Secretary](/usc/42/1301.md?p=a-6) an annual report on the [programs](/usc/42/274l–1.md?p=4) supported by such payment. Such report shall include information on—
      - (i) the specific uses of such payment;
      - (ii) an assessment of quality improvements and clinical outcomes under such [programs](/usc/42/274l–1.md?p=4); and
      - (iii) estimates of cost savings resulting from such [programs](/usc/42/274l–1.md?p=4).
  - (4) **Funding—**
    - (A) **Limitation on funds—** The total amount of payments under this subsection shall be equal to, and shall not exceed—
      - (i) $75,000,000 for fiscal year 2007; and
      - (ii) $75,000,000 for fiscal year 2008.

      This subsection constitutes budget authority in advance of appropriations Acts and represents the obligation of the [Secretary](/usc/42/1301.md?p=a-6) to provide for the payment of amounts provided under this subsection.

    - (B) **Allocation of funds—** The [Secretary](/usc/42/1301.md?p=a-6) shall specify a method for allocating the [funds](/usc/42/12854.md?p=3) made available under this subsection among [States](#w-7-D). Such method shall provide preference for [States](#w-7-D) that design [programs](/usc/42/274l–1.md?p=4) that target health providers that treat significant numbers of [Medicaid](#w-3-E-iii-III-aa) beneficiaries. Such method shall provide that not less than 25 percent of such [funds](/usc/42/12854.md?p=3) shall be allocated among [States](#w-7-D) the population of which (as determined according to data collected by the [United States](/usc/42/1301.md?p=a-2) Census Bureau) as of July 1, 2004, was more than 105 percent of the population of the respective [State](#w-7-D) (as so determined) as of April 1, 2000.
    - (C) **Form and manner of payment—** Payment to a [State](#w-7-D) under this subsection shall be made in the same manner as other payments under [subsection (a)](#a). There is no requirement for [State](#w-7-D) matching [funds](/usc/42/12854.md?p=3) to receive payments under this subsection.
  - (5) **Medication risk management program—**
    - (A) **In general—** For purposes of this subsection, the term “medication risk management program” means a [program](/usc/42/274l–1.md?p=4) for [targeted beneficiaries](#z-5-C) that ensures that [covered outpatient drugs](/usc/42/1396r–8.md?p=k-3) are appropriately used to optimize therapeutic outcomes through improved medication use and to reduce the risk of adverse events.
    - (B) **Elements—** Such [program](/usc/42/274l–1.md?p=4) may include the following elements:
      - (i) The use of established principles and [standards](/usc/42/1320d.md?p=7) for [drug](/usc/42/282.md?p=j-1-A-vii) utilization review and best [practices](/usc/42/17061.md?p=19) to analyze prescription [drug](/usc/42/282.md?p=j-1-A-vii) [claims](/usc/42/1320a–7a.md?p=i-2) of [targeted beneficiaries](#z-5-C) and identify outlier [physicians](/usc/42/1396d.md?p=e).
      - (ii) On an ongoing basis provide outlier [physicians](/usc/42/1396d.md?p=e)—
        - (I) a comprehensive pharmacy [claims](/usc/42/1320a–7a.md?p=i-2) history for each targeted beneficiary under their care;
        - (II) information regarding the frequency and cost of relapses and [hospitalizations](/usc/42/1301.md?p=a-7) of [targeted beneficiaries](#z-5-C) under the [physician](/usc/42/1301.md?p=a-7)’s care; and
        - (III) applicable best practice guidelines and empirical references.
      - (iii) Monitor outlier [physician](/usc/42/1301.md?p=a-7)’s prescribing, such as failure to refill, dosage strengths, and provide incentives and information to encourage the adoption of best clinical [practices](/usc/42/17061.md?p=19).
    - (C) **Targeted beneficiaries—** For purposes of this paragraph, the term “targeted beneficiaries” means [Medicaid](#w-3-E-iii-III-aa) eligible beneficiaries who are identified as having high prescription [drug](/usc/42/282.md?p=j-1-A-vii) costs and medical costs, such as individuals with behavioral disorders or multiple chronic diseases who are taking multiple medications.
- (aa) **Demonstration project to increase substance use provider capacity—**
  - (1) **In general—** Not later than the date that is 180 days after October 24, 2018, the [Secretary](/usc/42/1301.md?p=a-6) shall, in consultation, as appropriate, with the [Director](/usc/42/5061.md?p=1) of the [Agency](/usc/42/1397n–12.md?p=1) for Healthcare Research and Quality and the Assistant [Secretary](/usc/42/1301.md?p=a-6) for Mental Health and Substance Use, conduct a 54-month [demonstration project](/usc/42/16281.md?p=d-2) for the purpose described in [paragraph (2)](#aa-2) under which the [Secretary](/usc/42/1301.md?p=a-6) shall—
    - (A) for the first 18-month period of such [project](/usc/42/11360.md?p=20), award planning [grants](/usc/42/1397j.md?p=10) described in [paragraph (3)](#aa-3); and
    - (B) for the remaining 36-month period of such [project](/usc/42/11360.md?p=20), provide to each [State](#w-7-D) selected under [paragraph (4)](#aa-4) payments in accordance with [paragraph (5)](#aa-5).
  - (2) **Purpose—** The purpose described in this paragraph is for each [State](#w-7-D) selected under [paragraph (4)](#aa-4) to increase the [treatment](/usc/42/11851.md?p=11) capacity of providers participating under the [State](#w-7-D) plan (or a waiver of such plan) to provide substance use disorder [treatment](/usc/42/11851.md?p=11) or recovery services under such plan (or waiver) through the following activities:
    - (A) For the purpose described in [paragraph (3)(C)(i)](#aa-3-C-i), activities that support an ongoing assessment of the behavioral health [treatment](/usc/42/11851.md?p=11) needs of the [State](#w-7-D), taking into account the matters described in [subclauses (I) through (IV)](#aa-3-C-i-I..aa-3-C-i-IV) of such paragraph.
    - (B) Activities that, taking into account the results of the assessment described in [subparagraph (A)](#aa-2-A), support the recruitment, [training](/usc/42/285e–2.md?p=b-2), and provision of technical assistance for providers participating under the [State](#w-7-D) plan (or a waiver of such plan) that offer substance use disorder [treatment](/usc/42/11851.md?p=11) or recovery services.
    - (C) Improved reimbursement for and expansion of, through the provision of education, [training](/usc/42/285e–2.md?p=b-2), and technical assistance, the number or [treatment](/usc/42/11851.md?p=11) capacity of providers participating under the [State](#w-7-D) plan (or waiver) that—
      - (i) are authorized to dispense [drugs](/usc/42/282.md?p=j-1-A-vii) approved by the Food and [Drug](/usc/42/282.md?p=j-1-A-vii) [Administration](/usc/42/1301.md?p=a-10) for individuals with a substance use disorder who need withdrawal management or maintenance [treatment](/usc/42/11851.md?p=11) for such disorder; and
      - (ii) are qualified under applicable [State](#w-7-D) law to provide substance use disorder [treatment](/usc/42/11851.md?p=11) or recovery services.
    - (D) Improved reimbursement for and expansion of, through the provision of education, [training](/usc/42/285e–2.md?p=b-2), and technical assistance, the number or [treatment](/usc/42/11851.md?p=11) capacity of providers participating under the [State](#w-7-D) plan (or waiver) that have the qualifications to address the [treatment](/usc/42/11851.md?p=11) or recovery needs of—
      - (i) individuals enrolled under the [State](#w-7-D) plan (or a waiver of such plan) who have neonatal abstinence syndrome, in accordance with guidelines issued by the American Academy of Pediatrics and American College of [Obstetricians](/usc/42/1396r–4.md?p=d-2-B) and Gynecologists relating to maternal care and infant care with respect to neonatal abstinence syndrome;
      - (ii) pregnant women, postpartum women, and infants, particularly the concurrent [treatment](/usc/42/11851.md?p=11), as appropriate, and comprehensive case management of pregnant women, postpartum women and infants, enrolled under the [State](#w-7-D) plan (or a waiver of such plan);
      - (iii) adolescents and young adults between the ages of 12 and 21 enrolled under the [State](#w-7-D) plan (or a waiver of such plan); or
      - (iv) American [Indian](/usc/42/6862.md?p=6) and Alaska Native individuals enrolled under the [State](#w-7-D) plan (or a waiver of such plan).
  - (3) **Planning grants—**
    - (A) **In general—** The [Secretary](/usc/42/1301.md?p=a-6) shall, with respect to the first 18-month period of the [demonstration project](/usc/42/16281.md?p=d-2) conducted under [paragraph (1)](#aa-1), award planning [grants](/usc/42/1397j.md?p=10) to at least 10 [States](#w-7-D) selected in accordance with [subparagraph (B)](#aa-3-B) for purposes of preparing an application described in [paragraph (4)(C)](#aa-4-C) and carrying out the activities described in [subparagraph (C)](#aa-3-C).
    - (B) **Selection—** In selecting [States](#w-7-D) for purposes of this paragraph, the [Secretary](/usc/42/1301.md?p=a-6) shall—
      - (i) select [States](#w-7-D) that have a [State](#w-7-D) plan (or waiver of the [State](#w-7-D) plan) approved under this subchapter;
      - (ii) select [States](#w-7-D) in a manner that ensures geographic diversity; and
      - (iii) give preference to [States](#w-7-D) with a prevalence of substance use disorders (in particular opioid use disorders) that is comparable to or higher than the national average prevalence, as measured by aggregate per capita [drug](/usc/42/282.md?p=j-1-A-vii) overdoses, or any other measure that the [Secretary](/usc/42/1301.md?p=a-6) deems appropriate.
    - (C) **Activities described—** Activities described in this subparagraph are, with respect to a [State](#w-7-D), each of the following:
      - (i) Activities that support the development of an initial assessment of the behavioral health [treatment](/usc/42/11851.md?p=11) needs of the [State](#w-7-D) to determine the extent to which providers are needed ([including](/usc/42/1301.md?p=b) the types of such providers and [geographic area](/usc/42/11360.md?p=9) of need) to improve the network of providers that treat substance use disorders under the [State](#w-7-D) plan (or waiver), [including](/usc/42/1301.md?p=b) the following:
        - (I) An estimate of the number of individuals enrolled under the [State](#w-7-D) plan (or a waiver of such plan) who have a substance use disorder.
        - (II) Information on the capacity of providers to provide substance use disorder [treatment](/usc/42/11851.md?p=11) or recovery services to individuals enrolled under the [State](#w-7-D) plan (or waiver), [including](/usc/42/1301.md?p=b) information on providers who provide such services and their participation under the [State](#w-7-D) plan (or waiver).
        - (III) Information on the gap in substance use disorder [treatment](/usc/42/11851.md?p=11) or recovery services under the [State](#w-7-D) plan (or waiver) based on the information described in subclauses [(I)](#aa-3-C-i-I) and [(II)](#aa-3-C-i-II).
        - (IV) Projections regarding the extent to which the [State](#w-7-D) participating under the [demonstration project](/usc/42/16281.md?p=d-2) would increase the number of providers offering substance use disorder [treatment](/usc/42/11851.md?p=11) or recovery services under the [State](#w-7-D) plan (or waiver) during the period of the [demonstration project](/usc/42/16281.md?p=d-2).
      - (ii) Activities that, taking into account the results of the assessment described in [clause (i)](#aa-3-C-i), support the development of [State](#w-7-D) infrastructure to, with respect to the provision of substance use disorder [treatment](/usc/42/11851.md?p=11) or recovery services under the [State](#w-7-D) plan (or a waiver of such plan), recruit prospective providers and provide [training](/usc/42/285e–2.md?p=b-2) and technical assistance to such providers.
    - (D) **Funding—** For purposes of [subparagraph (A)](#aa-3-A), there is appropriated, out of any [funds](/usc/42/12854.md?p=3) in the Treasury not otherwise appropriated, $50,000,000, to remain available until expended.
  - (4) **Post-planning states—**
    - (A) **In general—** The [Secretary](/usc/42/1301.md?p=a-6) shall, with respect to the remaining 36-month period of the [demonstration project](/usc/42/16281.md?p=d-2) conducted under [paragraph (1)](#aa-1), select not more than 5 [States](#w-7-D) in accordance with [subparagraph (B)](#aa-4-B) for purposes of carrying out the activities described in [paragraph (2)](#aa-2) and receiving payments in accordance with [paragraph (5)](#aa-5).
    - (B) **Selection—** In selecting [States](#w-7-D) for purposes of this paragraph, the [Secretary](/usc/42/1301.md?p=a-6) shall—
      - (i) select [States](#w-7-D) that received a planning [grant](/usc/42/1397j.md?p=10) under [paragraph (3)](#aa-3);
      - (ii) select [States](#w-7-D) that submit to the [Secretary](/usc/42/1301.md?p=a-6) an application in accordance with the requirements in [subparagraph (C)](#aa-4-C), taking into consideration the quality of each such application;
      - (iii) select [States](#w-7-D) in a manner that ensures geographic diversity; and
      - (iv) give preference to [States](#w-7-D) with a prevalence of substance use disorders (in particular opioid use disorders) that is comparable to or higher than the national average prevalence, as measured by aggregate per capita [drug](/usc/42/282.md?p=j-1-A-vii) overdoses, or any other measure that the [Secretary](/usc/42/1301.md?p=a-6) deems appropriate.
    - (C) **Applications—**
      - (i) **In general—** A [State](#w-7-D) seeking to be selected for purposes of this paragraph shall submit to the [Secretary](/usc/42/1301.md?p=a-6), at such time and in such form and manner as the [Secretary](/usc/42/1301.md?p=a-6) requires, an application that [includes](/usc/42/1301.md?p=b) such information, provisions, and assurances, as the [Secretary](/usc/42/1301.md?p=a-6) may require, in addition to the following:
        - (I) A proposed process for carrying out the ongoing assessment described in [paragraph (2)(A)](#aa-2-A), taking into account the results of the initial assessment described in [paragraph (3)(C)(i)](#aa-3-C-i).
        - (II) A review of reimbursement methodologies and other policies related to substance use disorder [treatment](/usc/42/11851.md?p=11) or recovery services under the [State](#w-7-D) plan (or waiver) that may create barriers to increasing the number of providers delivering such services.
        - (III) The development of a plan, taking into account activities carried out under [paragraph (3)(C)(ii)](#aa-3-C-ii), that will result in long-term and sustainable provider networks under the [State](#w-7-D) plan (or waiver) that will offer a continuum of care for substance use disorders. Such plan shall include the following:
          - (aa) Specific activities to increase the number of providers ([including](/usc/42/1301.md?p=b) providers that specialize in providing substance use disorder [treatment](/usc/42/11851.md?p=11) or recovery services, [hospitals](/usc/42/1395dd.md?p=e-5), health care systems, [Federally qualified health centers](/usc/42/254c.md?p=b-2), and, as applicable, [certified community behavioral health clinics](/usc/42/1396d.md?p=jj-2)) that offer substance use disorder [treatment](/usc/42/11851.md?p=11), recovery, or support services, [including](/usc/42/1301.md?p=b) short-term detoxification services, outpatient [substance use disorder services](/usc/42/290cc–34.md?p=4), and evidence-based peer recovery services.
          - (bb) Strategies that will incentivize providers described in subparagraphs [(C)](#aa-2-C) and [(D)](#aa-2-D) of paragraph (2) to obtain the necessary [training](/usc/42/285e–2.md?p=b-2), education, and support to deliver substance use disorder [treatment](/usc/42/11851.md?p=11) or recovery services in the [State](#w-7-D).
          - (cc) Milestones and timeliness for implementing activities set forth in the plan.
          - (dd) Specific measurable targets for increasing the substance use disorder [treatment](/usc/42/11851.md?p=11) and recovery provider network under the [State](#w-7-D) plan (or a waiver of such plan).
        - (IV) A proposed process for reporting the information required under [paragraph (6)(A)](#aa-6-A), [including](/usc/42/1301.md?p=b) information to assess the effectiveness of the efforts of the [State](#w-7-D) to expand the capacity of providers to deliver substance use disorder [treatment](/usc/42/11851.md?p=11) or recovery services during the period of the [demonstration project](/usc/42/16281.md?p=d-2) under this subsection.
        - (V) The expected financial impact of the [demonstration project](/usc/42/16281.md?p=d-2) under this subsection on the [State](#w-7-D).
        - (VI) A description of all funding sources available to the [State](#w-7-D) to provide substance use disorder [treatment](/usc/42/11851.md?p=11) or recovery services in the [State](#w-7-D).
        - (VII) A preliminary plan for how the [State](#w-7-D) will sustain any increase in the capacity of providers to deliver substance use disorder [treatment](/usc/42/11851.md?p=11) or recovery services resulting from the [demonstration project](/usc/42/16281.md?p=d-2) under this subsection after the termination of such [demonstration project](/usc/42/16281.md?p=d-2).
        - (VIII) A description of how the [State](#w-7-D) will coordinate the goals of the [demonstration project](/usc/42/16281.md?p=d-2) with any waiver granted (or submitted by the [State](#w-7-D) and pending) pursuant to [section 1315 of this title](/usc/42/1315.md) for the delivery of substance use services under the [State](#w-7-D) plan, as applicable.
      - (ii) **Consultation—** In completing an application under [clause (i)](#aa-4-C-i), a [State](#w-7-D) shall consult with relevant stakeholders, [including](/usc/42/1301.md?p=b) [Medicaid](#w-3-E-iii-III-aa) managed care plans, [health care providers](/usc/42/300jj.md?p=3), and [Medicaid](#w-3-E-iii-III-aa) beneficiary advocates, and include in such application a description of such consultation.
  - (5) **Payment—**
    - (A) **In general—** For each quarter occurring during the period for which the [demonstration project](/usc/42/16281.md?p=d-2) is conducted (after the first 18 months of such period), the [Secretary](/usc/42/1301.md?p=a-6) shall pay under this subsection, subject to [subparagraph (C)](#aa-5-C), to each [State](#w-7-D) selected under [paragraph (4)](#aa-4) an amount equal to 80 percent of so much of the [qualified sums](#aa-5-B) expended during such quarter.
    - (B) **Qualified sums defined—** For purposes of [subparagraph (A)](#aa-5-A), the term “qualified sums” means, with respect to a [State](#w-7-D) and a quarter, the amount equal to the amount (if any) by which the sums expended by the [State](#w-7-D) during such quarter attributable to substance use disorder [treatment](/usc/42/11851.md?p=11) or recovery services furnished by providers participating under the [State](#w-7-D) plan (or a waiver of such plan) exceeds 1/4 of such sums expended by the [State](#w-7-D) during fiscal year 2018 attributable to substance use disorder [treatment](/usc/42/11851.md?p=11) or recovery services.
    - (C) **Non-duplication of payment—** In the case that payment is made under [subparagraph (A)](#aa-5-A) with respect to expenditures for substance use disorder [treatment](/usc/42/11851.md?p=11) or recovery services furnished by providers participating under the [State](#w-7-D) plan (or a waiver of such plan), payment may not also be made under [subsection (a)](#a) with respect to expenditures for the same services so furnished.
  - (6) **Reports—**
    - (A) **State reports—** A [State](#w-7-D) receiving payments under [paragraph (5)](#aa-5) shall, for the period of the [demonstration project](/usc/42/16281.md?p=d-2) under this subsection, submit to the [Secretary](/usc/42/1301.md?p=a-6) a quarterly report, with respect to expenditures for substance use disorder [treatment](/usc/42/11851.md?p=11) or recovery services for which payment is made to the [State](#w-7-D) under this subsection, on the following:
      - (i) The specific activities with respect to which payment under this subsection was provided.
      - (ii) The number of providers that delivered substance use disorder [treatment](/usc/42/11851.md?p=11) or recovery services in the [State](#w-7-D) under the [demonstration project](/usc/42/16281.md?p=d-2) compared to the estimated number of providers that would have otherwise delivered such services in the absence of such [demonstration project](/usc/42/16281.md?p=d-2).
      - (iii) The number of individuals enrolled under the [State](#w-7-D) plan (or a waiver of such plan) who received substance use disorder [treatment](/usc/42/11851.md?p=11) or recovery services under the [demonstration project](/usc/42/16281.md?p=d-2) compared to the estimated number of such individuals who would have otherwise received such services in the absence of such [demonstration project](/usc/42/16281.md?p=d-2).
      - (iv) Other matters as determined by the [Secretary](/usc/42/1301.md?p=a-6).
    - (B) **CMS reports—**
      - (i) **Initial report—** Not later than October 1, 2020, the [Administrator](/usc/42/4005.md?p=1) of the Centers for Medicare & [Medicaid](#w-3-E-iii-III-aa) Services shall, in consultation with the [Director](/usc/42/5061.md?p=1) of the [Agency](/usc/42/1397n–12.md?p=1) for Healthcare Research and Quality and the Assistant [Secretary](/usc/42/1301.md?p=a-6) for Mental Health and Substance Use, submit to Congress an initial report on—
        - (I) the [States](#w-7-D) awarded planning [grants](/usc/42/1397j.md?p=10) under [paragraph (3)](#aa-3);
        - (II) the criteria used in such selection; and
        - (III) the activities carried out by such [States](#w-7-D) under such planning [grants](/usc/42/1397j.md?p=10).
      - (ii) **Interim report—** Not later than October 1, 2022, the [Administrator](/usc/42/4005.md?p=1) of the Centers for Medicare & [Medicaid](#w-3-E-iii-III-aa) Services shall, in consultation with the [Director](/usc/42/5061.md?p=1) of the [Agency](/usc/42/1397n–12.md?p=1) for Healthcare Research and Quality and the Assistant [Secretary](/usc/42/1301.md?p=a-6) for Mental Health and Substance Use, submit to Congress an interim report—
        - (I) on activities carried out under the [demonstration project](/usc/42/16281.md?p=d-2) under this subsection;
        - (II) on the extent to which [States](#w-7-D) selected under [paragraph (4)](#aa-4) have achieved the stated goals submitted in their applications under [subparagraph (C)](#aa-6-C) of such paragraph;
        - (III) with a description of the strengths and limitations of such [demonstration project](/usc/42/16281.md?p=d-2); and
        - (IV) with a plan for the sustainability of such [project](/usc/42/11360.md?p=20).
      - (iii) **Final report—** Not later than October 1, 2024, the [Administrator](/usc/42/4005.md?p=1) of the Centers for Medicare & [Medicaid](#w-3-E-iii-III-aa) Services shall, in consultation with the [Director](/usc/42/5061.md?p=1) of the [Agency](/usc/42/1397n–12.md?p=1) for Healthcare Research and Quality and the Assistant [Secretary](/usc/42/1301.md?p=a-6) for Mental Health and Substance Use, submit to Congress a final report—
        - (I) providing updates on the matters reported in the interim report under [clause (ii)](#aa-6-B-ii);
        - (II) [including](/usc/42/1301.md?p=b) a description of any changes made with respect to the [demonstration project](/usc/42/16281.md?p=d-2) under this subsection after the submission of such interim report; and
        - (III) evaluating such [demonstration project](/usc/42/16281.md?p=d-2).
    - (C) **AHRQ report—** Not later than 3 years after October 24, 2018, the [Director](/usc/42/5061.md?p=1) of the [Agency](/usc/42/1397n–12.md?p=1) for Healthcare Research and Quality, in consultation with the [Administrator](/usc/42/4005.md?p=1) of the Centers for Medicare & [Medicaid](#w-3-E-iii-III-aa) Services, shall submit to Congress a summary on the experiences of [States](#w-7-D) awarded planning [grants](/usc/42/1397j.md?p=10) under [paragraph (3)](#aa-3) and [States](#w-7-D) selected under [paragraph (4)](#aa-4).
  - (7) **Data sharing and best practices—** During the period of the [demonstration project](/usc/42/16281.md?p=d-2) under this subsection, the [Secretary](/usc/42/1301.md?p=a-6) shall, in collaboration with [States](#w-7-D) selected under [paragraph (4)](#aa-4), facilitate data sharing and the development of best [practices](/usc/42/17061.md?p=19) between such [States](#w-7-D) and [States](#w-7-D) that were not so selected.
  - (8) **CMS funding—** There is appropriated, out of any [funds](/usc/42/12854.md?p=3) in the Treasury not otherwise appropriated, $5,000,000 to the Centers for Medicare & [Medicaid](#w-3-E-iii-III-aa) Services for purposes of implementing this subsection. Such amount shall remain available until expended.
- (bb) **Supplemental payment reporting requirements—**
  - (1) **Collection and availability of supplemental payment data—**
    - (A) **In general—** Not later than October 1, 2021, the [Secretary](/usc/42/1301.md?p=a-6) shall establish a system for each [State](#w-7-D) to submit reports, as determined appropriate by the [Secretary](/usc/42/1301.md?p=a-6), on [supplemental payments](#bb-2-A) data, as a requirement for a [State](#w-7-D) plan or [State](#w-7-D) plan amendment that would provide for a [supplemental payment](#bb-2-A).
    - (B) **Requirements—** Each report submitted by a [State](#w-7-D) in accordance with the requirement established under [subparagraph (A)](#bb-1-A) shall include the following:
      - (i) An explanation of how [supplemental payments](#bb-2-A) made under the [State](#w-7-D) plan or a [State](#w-7-D) plan amendment will result in payments that are consistent with [section 1396a(a)(30)(A) of this title](/usc/42/1396a.md?p=a-30-A), [including](/usc/42/1301.md?p=b) [standards](/usc/42/1320d.md?p=7) with respect to efficiency, economy, quality of care, and access, along with the stated purpose and intended effects of the [supplemental payment](#bb-2-A).
      - (ii) The criteria used to determine which providers are eligible to receive the [supplemental payment](#bb-2-A).
      - (iii) A comprehensive description of the methodology used to calculate the amount of, and distribute, the [supplemental payment](#bb-2-A) to each eligible provider, [including](/usc/42/1301.md?p=b)—
        - (I) data on the amount of the [supplemental payment](#bb-2-A) made to each eligible provider, if known, or, if the total amount is distributed using a formula based on data from 1 or more fiscal years, data on the total amount of the [supplemental payments](#bb-2-A) for the fiscal year or years available to all providers eligible to receive a [supplemental payment](#bb-2-A);
        - (II) if applicable, the specific criteria with respect to [Medicaid](#w-3-E-iii-III-aa) service, utilization, or cost data to be used as the basis for calculations regarding the amount or distribution of the [supplemental payment](#bb-2-A); and
        - (III) the timing of the [supplemental payment](#bb-2-A) made to each eligible provider.
      - (iv) An assurance that the total [Medicaid](#w-3-E-iii-III-aa) payments made to an inpatient [hospital](/usc/42/1395dd.md?p=e-5) provider, [including](/usc/42/1301.md?p=b) the [supplemental payment](#bb-2-A), will not exceed upper payment limits.
      - (v) If not already submitted, an upper payment limit demonstration under [section 447.272 of title 42, Code of Federal Regulations](/cfr/42/447.272.md) (as such section is in effect as of December 27, 2020).
    - (C) **Public availability—** The [Secretary](/usc/42/1301.md?p=a-6) shall make all reports and related data submitted under this paragraph publicly available on the website of the Centers for Medicare & [Medicaid](#w-3-E-iii-III-aa) Services on a timely basis.
  - (2) **Supplemental payment defined—**
    - (A) **In general—** Subject to [subparagraph (B)](#bb-2-B), in this subsection, the term “supplemental payment” means a payment to a provider that is in addition to any base payment made to the provider under the [State](#w-7-D) plan under this subchapter or under demonstration authority.
    - (B) **DSH payments excluded—** Such term does not include a disproportionate share [hospital](/usc/42/1395dd.md?p=e-5) payment made under [section 1396r–4 of this title](/usc/42/1396r–4.md).

# §1396b–1. Payment adjustment for health care-acquired conditions

- (a) **In general—** The [Secretary](/usc/42/1301.md?p=a-6) of Health and Human Services (in this subsection referred to as the “[Secretary](/usc/42/1301.md?p=a-6)”) shall identify current [State](/usc/42/1396b.md?p=w-7-D) [practices](/usc/42/17061.md?p=19) that prohibit payment for [health care-acquired conditions](#b) and shall incorporate the [practices](/usc/42/17061.md?p=19) identified, or elements of such [practices](/usc/42/17061.md?p=19), which the [Secretary](/usc/42/1301.md?p=a-6) determines appropriate for application to the [Medicaid](/usc/42/1396b.md?p=w-3-E-iii-III-aa) [program](/usc/42/274l–1.md?p=4) in regulations. Such regulations shall be effective as of July 1, 2011, and shall prohibit payments to [States](/usc/42/1396b.md?p=w-7-D) under section 1903 of the [Social](/usc/42/1397j.md?p=20) Security Act [[42 U.S.C. 1396b](/usc/42/1396b.md)] for any amounts expended for providing medical assistance for [health care-acquired conditions](#b) specified in the regulations. The regulations shall ensure that the prohibition on payment for [health care-acquired conditions](#b) shall not result in a loss of access to care or services for [Medicaid](/usc/42/1396b.md?p=w-3-E-iii-III-aa) beneficiaries.
- (b) **Health care-acquired condition—** In this section.[^1] the term “health care-acquired condition” means a medical condition for which an individual was diagnosed that could be identified by a secondary diagnostic code described in section 1886(d)(4)(D)(iv) of the [Social](/usc/42/1397j.md?p=20) Security Act ([42 U.S.C. 1395ww(d)(4)(D)(iv)](/usc/42/1395ww.md?p=d-4-D-iv)).
- (c) **Medicare provisions—** In carrying out this section, the [Secretary](/usc/42/1301.md?p=a-6) shall apply to [State](/usc/42/1396b.md?p=w-7-D) plans (or waivers) under title XIX of the [Social](/usc/42/1397j.md?p=20) Security Act [[42 U.S.C. 1396](/usc/42/1396.md) et seq.] the regulations promulgated pursuant to [section 1886(d)(4)(D)](/usc/42/1886.md) of such Act ([42 U.S.C. 1395ww(d)(4)(D)](/usc/42/1395ww.md?p=d-4-D)) relating to the prohibition of payments based on the presence of a secondary diagnosis code specified by the [Secretary](/usc/42/1301.md?p=a-6) in such regulations, as appropriate for the [Medicaid](/usc/42/1396b.md?p=w-3-E-iii-III-aa) [program](/usc/42/274l–1.md?p=4). The [Secretary](/usc/42/1301.md?p=a-6) may exclude certain conditions identified under title XVIII of the [Social](/usc/42/1397j.md?p=20) Security Act [[42 U.S.C. 1395](/usc/42/1395.md) et seq.] for non-payment under title XIX of such Act when the [Secretary](/usc/42/1301.md?p=a-6) finds the inclusion of such conditions to be inapplicable to beneficiaries under title XIX.

# §1396c. Operation of State plans


If the [Secretary](/usc/42/1301.md?p=a-6), after reasonable notice and opportunity for hearing to the [State agency](/usc/42/1320a–7a.md?p=i-1) administering or supervising the [administration](/usc/42/1301.md?p=a-10) of the [State](/usc/42/1396b.md?p=w-7-D) plan approved under this subchapter, finds—

- (1) that the plan has been so changed that it no longer complies with the provisions of [section 1396a of this title](/usc/42/1396a.md); or
- (2) that in the [administration](/usc/42/1301.md?p=a-10) of the plan there is a failure to comply substantially with any such provision;

the [Secretary](/usc/42/1301.md?p=a-6) shall notify such [State agency](/usc/42/1320a–7a.md?p=i-1) that further payments will not be made to the [State](/usc/42/1396b.md?p=w-7-D) (or, in his discretion, that payments will be limited to [categories](/usc/42/1395w–4.md?p=j-1) under or parts of the [State](/usc/42/1396b.md?p=w-7-D) plan not affected by such failure), until the [Secretary](/usc/42/1301.md?p=a-6) is satisfied that there will no longer be any such failure to comply. Until he is so satisfied he shall make no further payments to such [State](/usc/42/1396b.md?p=w-7-D) (or shall limit payments to [categories](/usc/42/1395w–4.md?p=j-1) under or parts of the [State](/usc/42/1396b.md?p=w-7-D) plan not affected by such failure).


# §1396d. Definitions


For purposes of this subchapter—

- (a) **Medical assistance—** The term “medical assistance” means payment of part or all of the cost of the following care and services or the care and services themselves, or both (if provided in or after the third month before the month in which the [recipient](/usc/42/2996a.md?p=6) makes application for assistance or, in the case of [medicare cost-sharing](#p-3) with respect to a [qualified medicare beneficiary](#p-1) described in [subsection (p)(1)](#p-1), if provided after the month in which the individual becomes such a beneficiary) for individuals, and, with respect to [physicians](#e)’ or dentists’ services, at the option of the [State](/usc/42/1396b.md?p=w-7-D), to individuals (other than individuals with respect to whom there is being paid, or who are eligible, or would be eligible if they were not in a medical institution, to have paid with respect to them a [State supplementary payment](#j) and are eligible for medical assistance equal in amount, duration, and scope to the medical assistance made available to individuals described in [section 1396a(a)(10)(A) of this title](/usc/42/1396a.md?p=a-10-A)) not receiving aid or assistance under any plan of the [State](/usc/42/1396b.md?p=w-7-D) approved under subchapter I, X, XIV, or XVI, or part A of subchapter IV, and with respect to whom [supplemental security income benefits](/usc/42/1382i.md?p=b-2) are not being paid under subchapter XVI, who are—
  - (i) under the age of 21, or, at the option of the [State](/usc/42/1396b.md?p=w-7-D), under the age of 20, 19, or 18 as the [State](/usc/42/1396b.md?p=w-7-D) may choose,
  - (ii) relatives specified in [section 606(b)(1)](/usc/42/606.md)[^1] of this title with whom a [child](/usc/42/416.md?p=e) is living if such [child](/usc/42/416.md?p=e) is (or would, if needy, be) a dependent [child](/usc/42/416.md?p=e) under part A of subchapter IV,
  - (iii) 65 years of age or older,
  - (iv) blind, with respect to [States](/usc/42/1396b.md?p=w-7-D) eligible to participate in the [State](/usc/42/1396b.md?p=w-7-D) plan [program](/usc/42/274l–1.md?p=4) established under subchapter XVI,
  - (v) 18 years of age or older and permanently and totally disabled, with respect to [States](/usc/42/1396b.md?p=w-7-D) eligible to participate in the [State](/usc/42/1396b.md?p=w-7-D) plan [program](/usc/42/274l–1.md?p=4) established under subchapter XVI,
  - (vi) [persons](/usc/42/1301.md?p=a-3) essential (as described in the second sentence of this subsection) to individuals receiving aid or assistance under [State](/usc/42/1396b.md?p=w-7-D) plans approved under subchapter I, X, XIV, or XVI,
  - (vii) blind or disabled as defined in [section 1382c of this title](/usc/42/1382c.md), with respect to [States](/usc/42/1396b.md?p=w-7-D) not eligible to participate in the [State](/usc/42/1396b.md?p=w-7-D) plan [program](/usc/42/274l–1.md?p=4) established under subchapter XVI,
  - (viii) pregnant women,
  - (ix) individuals provided extended benefits under [section 1396r–6 of this title](/usc/42/1396r–6.md),
  - (x) individuals described in [section 1396a(u)(1) of this title](/usc/42/1396a.md?p=u-1),
  - (xi) individuals described in [section 1396a(z)(1) of this title](/usc/42/1396a.md?p=z-1),
  - (xii) employed individuals with a medically improved disability (as defined in [subsection (v)](#v)),
  - (xiii) individuals described in [section 1396a(aa) of this title](/usc/42/1396a.md?p=aa),
  - (xiv) individuals described in section [1396a(a)(10)(A)(i)(VIII)](/usc/42/1396a.md?p=a-10-A-i-VIII) or [1396a(a)(10)(A)(i)(IX)](/usc/42/1396a.md?p=a-10-A-i-IX) of this title,
  - (xv) individuals described in [section 1396a(a)(10)(A)(ii)(XX) of this title](/usc/42/1396a.md?p=a-10-A-ii-XX),
  - (xvi) individuals described in [section 1396a(ii) of this title](/usc/42/1396a.md?p=ii),
  - (xvii) individuals who are eligible for home and community-based services under needs-based criteria established under paragraph (1)(A) of [section 1396n(i) of this title](/usc/42/1396n.md?p=i), or who are eligible for home and community-based services under [paragraph (6)](/usc/42/1396n.md?p=i-6) of such section, and who will receive home and community-based services pursuant to a [State](/usc/42/1396b.md?p=w-7-D) plan amendment under such subsection, or
  - (xviii) individuals who, but for earnings in excess of the limit established under [subsection (q)(2)(B)](#q-2-B), would be considered to be receiving supplemental security [income](/usc/42/292s.md?p=c-4), and who are at least 16 years of age,

  but whose [income](/usc/42/292s.md?p=c-4) and resources are insufficient to meet all of such cost—

  - (1) inpatient [hospital](/usc/42/1395dd.md?p=e-5) services (other than services in an [institution for mental diseases](#i));
  - (2)
    - (A) outpatient [hospital](/usc/42/1395dd.md?p=e-5) services, (B) consistent with [State](/usc/42/1396b.md?p=w-7-D) law permitting such services, [rural health clinic services](#l-1) (as defined in [subsection (l)(1)](#l-1)) and any other ambulatory services which are offered by a [rural health clinic](/usc/42/254c.md?p=b-2) (as defined in [subsection (l)(1)](#l-1)) and which are otherwise included in the plan, and (C) [Federally-qualified health center services](#l-2-A) (as defined in [subsection (l)(2)](#l-2)) and any other ambulatory services offered by a [Federally-qualified health center](#l-2-B) and which are otherwise included in the plan;
  - (3)
    - (A) other [laboratory](/usc/42/300jj.md?p=10) and X-ray services; and
    - (B) in vitro diagnostic products (as defined in [section 809.3(a) of title 21, Code of Federal Regulations](/cfr/21/809.3.md?p=a)) administered during any portion of the emergency period defined in paragraph (1)(B) of [section 1320b–5(g) of this title](/usc/42/1320b–5.md?p=g) beginning on or after March 18, 2020, for the detection of SARS–CoV–2 or the diagnosis of the virus that [causes](/usc/42/9908.md?p=c-2) COVID–19, and the [administration](/usc/42/1301.md?p=a-10) of such in vitro diagnostic products;
  - (4)
    - (A) [nursing facility services](#f) (other than services in an [institution for mental diseases](#i)) for individuals 21 years of age or older; (B) [early and periodic screening, diagnostic, and treatment services](#r) (as defined in [subsection (r)](#r)) for individuals who are eligible under the plan and are under the age of 21; (C) [family](/usc/42/290ff–4.md?p=d-2) planning services and supplies furnished (directly or under arrangements with others) to individuals of [child](/usc/42/416.md?p=e)-bearing age ([including](/usc/42/1301.md?p=b) minors who can be considered to be sexually active) who are eligible under the [State](/usc/42/1396b.md?p=w-7-D) plan and who desire such services and supplies; and[^2] (D) [counseling and pharmacotherapy for cessation of tobacco use by pregnant women](#bb-1) (as defined in [subsection (bb)](#bb)); and[^2] (E) during the period beginning on March 11, 2021, and ending on the last day of the first calendar quarter that begins one year after the last day of the emergency period described in [section 1320b–5(g)(1)(B) of this title](/usc/42/1320b–5.md?p=g-1-B), a COVID–19 vaccine and [administration](/usc/42/1301.md?p=a-10) of the vaccine; and (F) during the period beginning on March 11, 2021, and ending on the last day of the first calendar quarter that begins one year after the last day of the emergency period described in [section 1320b–5(g)(1)(B) of this title](/usc/42/1320b–5.md?p=g-1-B), testing and [treatments](/usc/42/11851.md?p=11) for COVID–19, [including](/usc/42/1301.md?p=b) specialized equipment and therapies ([including](/usc/42/1301.md?p=b) preventive therapies), and, without regard to the requirements of [section 1396a(a)(10)(B) of this title](/usc/42/1396a.md?p=a-10-B) (relating to comparability), in the case of an individual who is diagnosed with or presumed to have COVID–19, during the period such individual has (or is presumed to have) COVID–19, the [treatment](/usc/42/11851.md?p=11) of a condition that may seriously complicate the [treatment](/usc/42/11851.md?p=11) of COVID–19, if otherwise covered under the [State](/usc/42/1396b.md?p=w-7-D) plan (or waiver of such plan);
  - (5)
    - (A) [physicians](#e)’ services furnished by a [physician](/usc/42/1301.md?p=a-7) (as defined in [section 1395x(r)(1) of this title](/usc/42/1395x.md)), whether furnished in the [office](/usc/42/3058f.md?p=1), the patient’s home, a [hospital](/usc/42/1395dd.md?p=e-5), or a [nursing facility](/usc/42/1396r.md?p=a), or elsewhere, and (B) medical and surgical services furnished by a dentist (described in [section 1395x(r)(2) of this title](/usc/42/1395x.md)) to the extent such services may be performed under [State](/usc/42/1396b.md?p=w-7-D) law either by a doctor of medicine or by a doctor of dental surgery or dental medicine and would be described in [clause (A)](#a-5-A) if furnished by a [physician](/usc/42/1301.md?p=a-7) (as defined in [section 1395x(r)(1) of this title](/usc/42/1395x.md));
  - (6) [medical care](/usc/42/1301.md?p=a-7), or any other type of remedial care recognized under [State](/usc/42/1396b.md?p=w-7-D) law, furnished by licensed [practitioners](/usc/42/1395a.md?p=b-6-C) within the scope of their practice as defined by [State](/usc/42/1396b.md?p=w-7-D) law;
  - (7) [home health care services](/usc/42/1396b.md?p=l-5-B);
  - (8) private duty nursing services;
  - (9) clinic services furnished by or under the direction of a [physician](/usc/42/1301.md?p=a-7), without regard to whether the clinic itself is administered by a [physician](/usc/42/1301.md?p=a-7), [including](/usc/42/1301.md?p=b) such services furnished outside the clinic by clinic personnel to an [eligible individual](/usc/42/239.md?p=a-6) who does not reside in a permanent dwelling or does not have a fixed home or mailing address;
  - (10) dental services;
  - (11) physical therapy and related services;
  - (12) prescribed [drugs](/usc/42/282.md?p=j-1-A-vii), dentures, and [prosthetic devices](/usc/42/1395m.md?p=h-4-B); and eyeglasses prescribed by a [physician](/usc/42/1301.md?p=a-7) skilled in diseases of the eye or by an optometrist, whichever the individual may select;
  - (13) other diagnostic, screening, preventive, and rehabilitative services, [including](/usc/42/1301.md?p=b)—
    - (A) any clinical preventive services that are assigned a grade of A or B by the [United States](/usc/42/1301.md?p=a-2) Preventive Services [Task Force](/usc/42/242q–4.md?p=3);
    - (B) with respect to an adult individual, approved vaccines recommended by the [Advisory Committee](/usc/42/7703.md?p=9) on Immunization [Practices](/usc/42/17061.md?p=19) (an [advisory committee](/usc/42/7703.md?p=9) established by the [Secretary](/usc/42/1301.md?p=a-6), acting through the [Director](/usc/42/5061.md?p=1) of the Centers for Disease Control and Prevention) and their [administration](/usc/42/1301.md?p=a-10); and
    - (C) any medical or remedial services (provided in a [facility](/usc/42/11049.md?p=4), a home, or other setting) recommended by a [physician](/usc/42/1301.md?p=a-7) or other licensed [practitioner](/usc/42/1395a.md?p=b-6-C) of the healing arts within the scope of their practice under [State](/usc/42/1396b.md?p=w-7-D) law, for the maximum reduction of physical or mental disability and restoration of an individual to the best possible functional level;
  - (14) inpatient [hospital](/usc/42/1395dd.md?p=e-5) services and [nursing facility services](#f) for individuals 65 years of age or over in an [institution for mental diseases](#i);
  - (15) services in an [intermediate care facility for the mentally retarded](#d) (other than in an [institution for mental diseases](#i)) for individuals who are determined, in accordance with [section 1396a(a)(31) of this title](/usc/42/1396a.md?p=a-31), to be in need of such care;
  - (16)
    - (A) effective January 1, 1973, [inpatient psychiatric hospital services for individuals under age 21](#h-1), as defined in [subsection (h)](#h), and, (B) for individuals receiving services described in [subparagraph (A)](#a-16-A), [early and periodic screening, diagnostic, and treatment services](#r) (as defined in [subsection (r)](#r)), whether or not such screening, diagnostic, and [treatment services](/usc/42/300x–34.md?p=7) are furnished by the provider of the services described in such subparagraph;
  - (17) services furnished by a nurse-midwife (as defined in [section 1395x(gg) of this title](/usc/42/1395x.md?p=gg)) which the nurse-midwife is legally authorized to perform under [State](/usc/42/1396b.md?p=w-7-D) law (or the [State](/usc/42/1396b.md?p=w-7-D) regulatory mechanism provided by [State](/usc/42/1396b.md?p=w-7-D) law), whether or not the nurse-midwife is under the supervision of, or associated with, a [physician](/usc/42/1301.md?p=a-7) or other [health care provider](/usc/42/300jj.md?p=3), and without regard to whether or not the services are performed in the area of management of the care of mothers and babies throughout the maternity cycle;
  - (18) [hospice care](#o-1-A) (as defined in [subsection (o)](#o));
  - (19) case management services (as defined in [section 1396n(g)(2) of this title](/usc/42/1396n.md?p=g-2)) and TB-related services described in [section 1396a(z)(2)(F) of this title](/usc/42/1396a.md?p=z-2-F);
  - (20) respiratory care services (as defined in [section 1396a(e)(9)(C) of this title](/usc/42/1396a.md?p=e-9-C));
  - (21) services furnished by a certified pediatric nurse [practitioner](/usc/42/1395a.md?p=b-6-C) or certified [family](/usc/42/290ff–4.md?p=d-2) nurse [practitioner](/usc/42/1395a.md?p=b-6-C) (as defined by the [Secretary](/usc/42/1301.md?p=a-6)) which the certified pediatric nurse [practitioner](/usc/42/1395a.md?p=b-6-C) or certified [family](/usc/42/290ff–4.md?p=d-2) nurse [practitioner](/usc/42/1395a.md?p=b-6-C) is legally authorized to perform under [State](/usc/42/1396b.md?p=w-7-D) law (or the [State](/usc/42/1396b.md?p=w-7-D) regulatory mechanism provided by [State](/usc/42/1396b.md?p=w-7-D) law), whether or not the certified pediatric nurse [practitioner](/usc/42/1395a.md?p=b-6-C) or certified [family](/usc/42/290ff–4.md?p=d-2) nurse [practitioner](/usc/42/1395a.md?p=b-6-C) is under the supervision of, or associated with, a [physician](/usc/42/1301.md?p=a-7) or other [health care provider](/usc/42/300jj.md?p=3);
  - (22) [home and community care](/usc/42/1396t.md?p=a) (to the extent allowed and as defined in [section 1396t of this title](/usc/42/1396t.md)) for [functionally disabled elderly individuals](/usc/42/1396t.md?p=b-1);
  - (23) community supported living arrangements services (to the extent allowed and as defined in [section 1396u of this title](/usc/42/1396u.md));
  - (24) [personal care services](/usc/42/1396b.md?p=l-5-C) furnished to an individual who is not an inpatient or resident of a [hospital](/usc/42/1395dd.md?p=e-5), [nursing facility](/usc/42/1396r.md?p=a), [intermediate care facility for the mentally retarded](#d), or institution for mental disease that are (A) authorized for the individual by a [physician](/usc/42/1301.md?p=a-7) in accordance with a plan of [treatment](/usc/42/11851.md?p=11) or (at the option of the [State](/usc/42/1396b.md?p=w-7-D)) otherwise authorized for the individual in accordance with a service plan approved by the [State](/usc/42/1396b.md?p=w-7-D), (B) provided by an individual who is qualified to provide such services and who is not a member of the individual’s [family](/usc/42/290ff–4.md?p=d-2), and (C) furnished in a home or other location;
  - (25) [primary care case management services](#t-1) (as defined in [subsection (t)](#t));
  - (26) services furnished under a PACE [program](/usc/42/274l–1.md?p=4) under [section 1396u–4 of this title](/usc/42/1396u–4.md) to PACE [program](/usc/42/274l–1.md?p=4) [eligible individuals](/usc/42/239.md?p=a-6) enrolled under the [program](/usc/42/274l–1.md?p=4) under such section;
  - (27) subject to [subsection (x)](#x), primary and secondary medical strategies and [treatment](/usc/42/11851.md?p=11) and services for individuals who have Sickle Cell Disease;
  - (28) [freestanding birth center services](#l-3-A) (as defined in [subsection (l)(3)(A)](#l-3-A)) and other ambulatory services that are offered by a [freestanding birth center](#l-3-B) (as defined in [subsection (l)(3)(B)](#l-3-B)) and that are otherwise included in the plan;
  - (29) subject to paragraphs [(2)](#ee-2) and [(3)](#ee-3) of subsection (ee), beginning on October 1, 2020, [medication-assisted treatment](#ee-1) (as defined in [paragraph (1)](#a-1) of such subsection);
  - (30) subject to [subsection (gg)](#gg), routine patient costs for items and services furnished in connection with participation in a qualifying clinical trial (as defined in such subsection);
  - (31) [certified community behavioral health clinic](#jj-2) services, as defined in [subsection (jj)](#jj); and
  - (32) any other [medical care](/usc/42/1301.md?p=a-7), and any other type of remedial care recognized under [State](/usc/42/1396b.md?p=w-7-D) law, specified by the [Secretary](/usc/42/1301.md?p=a-6),

  except as otherwise provided in [paragraph (16)](#a-16), such term does not include—

  - (A) any such payments with respect to care or services for any individual who is an [inmate of a public institution](/usc/42/1396a.md?p=nn-3) (except as a patient in a medical institution, or in the case of an eligible juvenile described in [section 1396a(a)(84)(D) of this title](/usc/42/1396a.md?p=a-84-D) with respect to the screenings, diagnostic services, referrals, and [targeted case management services](/usc/42/1396n.md?p=g-2-B) required under such section, or, at the option of the [State](/usc/42/1396b.md?p=w-7-D), for an individual who is an eligible juvenile (as defined in [section 1396a(nn)(2) of this title](/usc/42/1396a.md?p=nn-2)), while such individual is an [inmate of a public institution](/usc/42/1396a.md?p=nn-3) (as defined in [section 1396a(nn)(3) of this title](/usc/42/1396a.md?p=nn-3)) pending disposition of charges); or
  - (B) any such payments with respect to care or services for any individual who has not attained 65 years of age and who is a patient in an [institution for mental diseases](#i) (except in the case of services provided under a [State](/usc/42/1396b.md?p=w-7-D) plan amendment described in [section 1396n(l)](/usc/42/1396n.md?p=l) of this title).

  For purposes of [clause (vi)](#a-vi) of the preceding sentence, a [person](/usc/42/1301.md?p=a-3) shall be considered essential to another individual if such [person](/usc/42/1301.md?p=a-3) is the spouse of and is living with such individual, the needs of such [person](/usc/42/1301.md?p=a-3) are taken into account in determining the amount of aid or assistance furnished to such individual (under a [State](/usc/42/1396b.md?p=w-7-D) plan approved under subchapter I, X, XIV, or XVI), and such [person](/usc/42/1301.md?p=a-3) is determined, under such a [State](/usc/42/1396b.md?p=w-7-D) plan, to be essential to the well-being of such individual. The payment described in the first sentence may include expenditures for [medicare cost-sharing](#p-3) and for premiums under part B of subchapter XVIII for individuals who are eligible for medical assistance under the plan and (A) are receiving aid or assistance under any plan of the [State](/usc/42/1396b.md?p=w-7-D) approved under subchapter I, X, XIV, or XVI, or part A of subchapter IV, or with respect to whom [supplemental security income benefits](/usc/42/1382i.md?p=b-2) are being paid under subchapter XVI, or (B) with respect to whom there is being paid a [State supplementary payment](#j) and are eligible for medical assistance equal in amount, duration, and scope to the medical assistance made available to individuals described in [section 1396a(a)(10)(A) of this title](/usc/42/1396a.md?p=a-10-A), and, except in the case of individuals 65 years of age or older and disabled individuals entitled to health insurance benefits under subchapter XVIII who are not enrolled under part B of subchapter XVIII, other insurance premiums for medical or any other type of remedial care or the cost thereof. No service ([including](/usc/42/1301.md?p=b) counseling) shall be excluded from the definition of “medical assistance” solely because it is provided as a [treatment](/usc/42/11851.md?p=11) service for alcoholism or [drug](/usc/42/282.md?p=j-1-A-vii) dependency. In the case of a woman who is eligible for medical assistance on the basis of being pregnant ([including](/usc/42/1301.md?p=b) through the end of the month in which the 60-day period beginning on the last day of her pregnancy ends), who is a patient in an [institution for mental diseases](#i) for purposes of receiving [treatment](/usc/42/11851.md?p=11) for a substance use disorder, and who was enrolled for medical assistance under the [State](/usc/42/1396b.md?p=w-7-D) plan immediately before becoming a patient in an [institution for mental diseases](#i) or who becomes eligible to enroll for such medical assistance while such a patient, the exclusion from the definition of “medical assistance” set forth in the subdivision (B) following the last numbered paragraph of the first sentence of this subsection shall not be construed as prohibiting Federal financial participation for medical assistance for items or services that are provided to the woman outside of the institution.

- (b) **Federal medical assistance percentage; State percentage; Indian health care percentage—** Subject to subsections [(y)](#y), [(z)](#z), [(aa)](#aa), [(ff)](#ff), [(hh)](#hh), and [(ii)](#ii) and [section 1396u–3(d) of this title](/usc/42/1396u–3.md?p=d), the term “Federal medical assistance percentage” for any [State](/usc/42/1396b.md?p=w-7-D) shall be 100 per centum less the [State](/usc/42/1396b.md?p=w-7-D) percentage; and the [State](/usc/42/1396b.md?p=w-7-D) percentage shall be that percentage which bears the same ratio to 45 per centum as the square of the per capita [income](/usc/42/292s.md?p=c-4) of such [State](/usc/42/1396b.md?p=w-7-D) bears to the square of the per capita [income](/usc/42/292s.md?p=c-4) of the continental [United States](/usc/42/1301.md?p=a-2) ([including](/usc/42/1301.md?p=b) Alaska) and Hawaii; except that (1) the Federal medical assistance percentage shall in no case be less than 50 per centum or more than 83 per centum, (2) the Federal medical assistance percentage for Puerto Rico, the Virgin Islands, Guam, the Northern Mariana Islands, and American Samoa shall be 55 percent, (3) for purposes of this subchapter and subchapter XXI, the Federal medical assistance percentage for the District of Columbia shall be 70 percent, (4) the Federal medical assistance percentage shall be equal to the enhanced FMAP described in [section 1397ee(b) of this title](/usc/42/1397ee.md?p=b) with respect to medical assistance provided to individuals who are eligible for such assistance only on the basis of [section 1396a(a)(10)(A)(ii)(XVIII) of this title](/usc/42/1396a.md?p=a-10-A-ii-XVIII), (5) in the case of a [State](/usc/42/1396b.md?p=w-7-D) that provides medical assistance for services described in [subsection (a)(13)(A)](#a-13-A), and prohibits [cost-sharing](/usc/42/18022.md?p=c-3-A) for such services, the Federal medical assistance percentage, as determined under this subsection and [subsection (y)](#y) (without regard to [paragraph (1)(C)](#y-1-C) of such subsection), shall be increased by 1 percentage point with respect to medical assistance for such services and for items and services described in subsection (a)(4)(D), and [(6)](#a-6) during the first 8 fiscal quarters beginning on or after the effective date of this clause, in the case of a [State](/usc/42/1396b.md?p=w-7-D) which, as of August 16, 2022, provides medical assistance for vaccines described in [subsection (a)(13)(B)](#a-13-B) and their [administration](/usc/42/1301.md?p=a-10) and prohibits [cost-sharing](/usc/42/18022.md?p=c-3-A) for such vaccines, the Federal medical assistance percentage, as determined under this subsection and [subsection (y)](#y), shall be increased by 1 percentage point with respect to medical assistance for such vaccines and their [administration](/usc/42/1301.md?p=a-10). The Federal medical assistance percentage for any [State](/usc/42/1396b.md?p=w-7-D) shall be determined and promulgated in accordance with the provisions of [section 1301(a)(8)(B) of this title](/usc/42/1301.md?p=a-8-B). Notwithstanding the first sentence of this section, the Federal medical assistance percentage shall be 100 per centum with respect to amounts expended as medical assistance for services which are received through an [Indian](/usc/42/6862.md?p=6) Health Service [facility](/usc/42/11049.md?p=4) whether operated by the [Indian](/usc/42/6862.md?p=6) Health Service or by an [Indian tribe](/usc/42/1397j.md?p=12-A) or [tribal organization](/usc/42/629a.md?p=a-6) (as defined in section 4 of the [Indian](/usc/42/6862.md?p=6) Health Care Improvement Act [[25 U.S.C. 1603](/usc/25/1603.md)]); for the 8 fiscal year quarters beginning with the first fiscal year quarter beginning after March 11, 2021, the Federal medical assistance percentage shall also be 100 per centum with respect to amounts expended as medical assistance for services which are received through an Urban [Indian](/usc/42/6862.md?p=6) organization (as defined in [paragraph (29)](/usc/42/4.md) of section 4 of the [Indian](/usc/42/6862.md?p=6) Health Care Improvement Act [[25 U.S.C. 1603(29)](/usc/25/1603.md?p=29)]) that has a [grant](/usc/42/1397j.md?p=10) or contract with the [Indian](/usc/42/6862.md?p=6) Health Service under title V of such Act [[25 U.S.C. 1651](/usc/25/1651.md) et seq.]; and, for such 8 fiscal year quarters, the Federal medical assistance percentage shall also be 100 per centum with respect to amounts expended as medical assistance for services which are received through a Native Hawaiian Health Center (as defined in [section 11711(4) of this title](/usc/42/11711.md?p=4)) or a qualified entity (as defined in [section 11705(b) of this title](/usc/42/11705.md?p=b)) that has a [grant](/usc/42/1397j.md?p=10) or contract with the Papa Ola Lokahi under [section 11707 of this title](/usc/42/11707.md). Notwithstanding the first sentence of this subsection, in the case of a [State](/usc/42/1396b.md?p=w-7-D) plan that meets the condition described in [subsection (u)(1)](#u-1), with respect to expenditures (other than expenditures under [section 1396r–4 of this title](/usc/42/1396r–4.md)) described in [subsection (u)(2)(A)](#u-2-A) or [subsection (u)(3)](#u-3) for the [State](/usc/42/1396b.md?p=w-7-D) for a fiscal year, and that do not exceed the amount of the [State](/usc/42/1396b.md?p=w-7-D)’s available allotment under [section 1397dd of this title](/usc/42/1397dd.md), the Federal medical assistance percentage is equal to the enhanced FMAP described in [section 1397ee(b) of this title](/usc/42/1397ee.md?p=b). Notwithstanding the first sentence of this subsection, the Federal medical assistance percentage shall be 100 per centum with respect to (and, notwithstanding any other provision of this subchapter, available for) medical assistance provided to uninsured individuals (as defined in [section 1396a(ss) of this title](/usc/42/1396a.md?p=ss)) who are eligible for such assistance only on the basis of [section 1396a(a)(10)(A)(ii)(XXIII) of this title](/usc/42/1396a.md?p=a-10-A-ii-XXIII) and with respect to expenditures described in [section 1396b(a)(7) of this title](/usc/42/1396b.md?p=a-7) that a [State](/usc/42/1396b.md?p=w-7-D) demonstrates to the satisfaction of the [Secretary](/usc/42/1301.md?p=a-6) are attributable to administrative costs related to providing for such medical assistance to such individuals under the [State](/usc/42/1396b.md?p=w-7-D) plan.
- (c) **Nursing facility—** For definition of the term “[nursing facility](/usc/42/1396r.md?p=a)”, see [section 1396r(a) of this title](/usc/42/1396r.md?p=a).
- (d) **Intermediate care facility for mentally retarded—** The term “intermediate care facility for the mentally retarded” means an institution (or distinct part thereof) for the mentally retarded or [persons](/usc/42/1301.md?p=a-3) with related conditions if—
  - (1) the primary purpose of such institution (or distinct part thereof) is to provide health or rehabilitative services for mentally retarded individuals and the institution meets such [standards](/usc/42/1320d.md?p=7) as may be prescribed by the [Secretary](/usc/42/1301.md?p=a-6);
  - (2) the mentally retarded individual with respect to whom a request for payment is made under a plan approved under this subchapter is receiving active [treatment](/usc/42/11851.md?p=11) under such a [program](/usc/42/274l–1.md?p=4); and
  - (3) in the case of a public institution, the [State](/usc/42/1396b.md?p=w-7-D) or political subdivision responsible for the operation of such institution has agreed that the non-Federal expenditures in any calendar quarter prior to January 1, 1975, with respect to services furnished to patients in such institution (or distinct part thereof) in the [State](/usc/42/1396b.md?p=w-7-D) will not, because of payments made under this subchapter, be reduced below the average amount expended for such services in such institution in the four quarters immediately preceding the quarter in which the [State](/usc/42/1396b.md?p=w-7-D) in which such institution is located elected to make such services available under its plan approved under this subchapter.
- (e) **Physicians’ services—** In the case of any [State](/usc/42/1396b.md?p=w-7-D) the [State](/usc/42/1396b.md?p=w-7-D) plan of which (as approved under this subchapter)—
  - (1) does not provide for the payment of services (other than services covered under [section 1396a(a)(12) of this title](/usc/42/1396a.md?p=a-12)) provided by an optometrist; but
  - (2) at a prior period did provide for the payment of services referred to in [paragraph (1)](#e-1);

  the term “physicians’ services” (as used in [subsection (a)(5)](#a-5)) shall include services of the type which an optometrist is legally authorized to perform where the [State](/usc/42/1396b.md?p=w-7-D) plan specifically provides that the term “physicians’ services”, as employed in such plan, [includes](/usc/42/1301.md?p=b) services of the type which an optometrist is legally authorized to perform, and shall be reimbursed whether furnished by a [physician](/usc/42/1301.md?p=a-7) or an optometrist.

- (f) **Nursing facility services—** For purposes of this subchapter, the term “nursing facility services” means services which are or were required to be given an individual who needs or needed on a daily basis nursing care (provided directly by or requiring the supervision of nursing personnel) or other rehabilitation services which as a practical matter can only be provided in a [nursing facility](/usc/42/1396r.md?p=a) on an inpatient basis.
- (g) **Chiropractors’ services—** If the [State](/usc/42/1396b.md?p=w-7-D) plan [includes](/usc/42/1301.md?p=b) provision of chiropractors’ services, such services include only—
  - (1) services provided by a chiropractor (A) who is licensed as such by the [State](/usc/42/1396b.md?p=w-7-D) and (B) who meets uniform minimum [standards](/usc/42/1320d.md?p=7) promulgated by the [Secretary](/usc/42/1301.md?p=a-6) under [section 1395x(r)(5) of this title](/usc/42/1395x.md); and
  - (2) services which consist of [treatment](/usc/42/11851.md?p=11) by means of manual manipulation of the spine which the chiropractor is legally authorized to perform by the [State](/usc/42/1396b.md?p=w-7-D).
- (h) **Inpatient psychiatric hospital services for individuals under age 21—**
  - (1) For purposes of [paragraph (16)](#a-16) of subsection (a), the term “inpatient psychiatric hospital services for individuals under age 21” [includes](/usc/42/1301.md?p=b) only—
    - (A) inpatient services which are provided in an institution (or distinct part thereof) which is a psychiatric [hospital](/usc/42/1395dd.md?p=e-5) as defined in [section 1395x(f) of this title](/usc/42/1395x.md?p=f) or in another inpatient setting that the [Secretary](/usc/42/1301.md?p=a-6) has specified in regulations;
    - (B) inpatient services which, in the case of any individual (i) involve active [treatment](/usc/42/11851.md?p=11) which meets such [standards](/usc/42/1320d.md?p=7) as may be prescribed in regulations by the [Secretary](/usc/42/1301.md?p=a-6), and (ii) a team, consisting of [physicians](#e) and other personnel qualified to make determinations with respect to mental health conditions and the [treatment](/usc/42/11851.md?p=11) thereof, has determined are necessary on an inpatient basis and can reasonably be expected to improve the condition, by reason of which such services are necessary, to the extent that eventually such services will no longer be necessary; and
    - (C) inpatient services which, in the case of any individual, are provided prior to (i) the date such individual attains age 21, or (ii) in the case of an individual who was receiving such services in the period immediately preceding the date on which he attained age 21, (I) the date such individual no longer requires such services, or (II) if earlier, the date such individual attains age 22;
  - (2) Such term does not include services provided during any calendar quarter under the [State](/usc/42/1396b.md?p=w-7-D) plan of any [State](/usc/42/1396b.md?p=w-7-D) if the total amount of the [funds](/usc/42/12854.md?p=3) expended, during such quarter, by the [State](/usc/42/1396b.md?p=w-7-D) (and the political subdivisions thereof) from non-Federal [funds](/usc/42/12854.md?p=3) for inpatient services included under [paragraph (1)](#h-1), and for active psychiatric care and [treatment](/usc/42/11851.md?p=11) provided on an outpatient basis for eligible mentally ill [children](/usc/42/256e.md?p=g-2), is less than the average quarterly amount of the [funds](/usc/42/12854.md?p=3) expended, during the 4-quarter period ending December 31, 1971, by the [State](/usc/42/1396b.md?p=w-7-D) (and the political subdivisions thereof) from non-Federal [funds](/usc/42/12854.md?p=3) for such services.
- (i) **Institution for mental diseases—** The term “institution for mental diseases” means a [hospital](/usc/42/1395dd.md?p=e-5), [nursing facility](/usc/42/1396r.md?p=a), or other institution of more than 16 beds, that is primarily engaged in providing diagnosis, [treatment](/usc/42/11851.md?p=11), or care of [persons](/usc/42/1301.md?p=a-3) with mental diseases, [including](/usc/42/1301.md?p=b) medical attention, nursing care, and related services.
- (j) **State supplementary payment—** The term “State supplementary payment” means any cash payment made by a [State](/usc/42/1396b.md?p=w-7-D) on a regular basis to an individual who is receiving [supplemental security income benefits](/usc/42/1382i.md?p=b-2) under subchapter XVI or who would but for his [income](/usc/42/292s.md?p=c-4) be eligible to receive such benefits, as assistance based on need in supplementation of such benefits (as determined by the [Commissioner](/usc/42/12302.md?p=1) of [Social](/usc/42/1397j.md?p=20) Security), but only to the extent that such payments are made with respect to an individual with respect to whom [supplemental security income benefits](/usc/42/1382i.md?p=b-2) are payable under subchapter XVI, or would but for his [income](/usc/42/292s.md?p=c-4) be payable under that subchapter.
- (k) **Supplemental security income benefits—** Increased [supplemental security income benefits](/usc/42/1382i.md?p=b-2) payable pursuant to section 211 of Public Law 93–66 shall not be considered [supplemental security income benefits](/usc/42/1382i.md?p=b-2) payable under subchapter XVI.
- (l) **Rural health clinics—**
  - (1) The terms “rural health clinic services” and “[rural health clinic](/usc/42/254c.md?p=b-2)” have the meanings given such terms in [section 1395x(aa) of this title](/usc/42/1395x.md?p=aa), except that (A) clause (ii) of [section 1395x(aa)(2) of this title](/usc/42/1395x.md?p=aa-2) shall not apply to such terms, and (B) the [physician](/usc/42/1301.md?p=a-7) arrangement required under [section 1395x(aa)(2)(B) of this title](/usc/42/1395x.md?p=aa-2-B) shall only apply with respect to rural health clinic services and, with respect to other ambulatory care services, the [physician](/usc/42/1301.md?p=a-7) arrangement required shall be only such as may be required under the [State](/usc/42/1396b.md?p=w-7-D) plan for those services.
  - (2)
    - (A) The term “Federally-qualified health center services” means services of the type described in subparagraphs (A) through (C) of [section 1395x(aa)(1) of this title](/usc/42/1395x.md?p=aa-1) when furnished to an individual as an[^3] patient of a [Federally-qualified health center](#l-2-B) and, for this purpose, any reference to a [rural health clinic](/usc/42/254c.md?p=b-2) or a [physician](/usc/42/1301.md?p=a-7) described in [section 1395x(aa)(2)(B) of this title](/usc/42/1395x.md?p=aa-2-B) is deemed a reference to a [Federally-qualified health center](#l-2-B) or a [physician](/usc/42/1301.md?p=a-7) at the center, respectively.
    - (B) The term “Federally-qualified health center” means an entity which—
      - (i) is receiving a [grant](/usc/42/1397j.md?p=10) under [section 254b of this title](/usc/42/254b.md),
      - (ii)
        - (I) is receiving funding from such a [grant](/usc/42/1397j.md?p=10) under a contract with the [recipient](/usc/42/2996a.md?p=6) of such a [grant](/usc/42/1397j.md?p=10), and
        - (II) meets the requirements to receive a [grant](/usc/42/1397j.md?p=10) under [section 254b of this title](/usc/42/254b.md),
      - (iii) based on the recommendation of the Health Resources and Services [Administration](/usc/42/1301.md?p=a-10) within the Public Health Service, is determined by the [Secretary](/usc/42/1301.md?p=a-6) to meet the requirements for receiving such a [grant](/usc/42/1397j.md?p=10), [including](/usc/42/1301.md?p=b) requirements of the [Secretary](/usc/42/1301.md?p=a-6) that an entity may not be owned, controlled, or operated by another entity, or
      - (iv) was treated by the [Secretary](/usc/42/1301.md?p=a-6), for purposes of part B of subchapter XVIII, as a comprehensive Federally funded health center as of January 1, 1990;

      and [includes](/usc/42/1301.md?p=b) an outpatient health [program](/usc/42/274l–1.md?p=4) or [facility](/usc/42/11049.md?p=4) operated by a tribe or [tribal organization](/usc/42/629a.md?p=a-6) under the [Indian](/usc/42/6862.md?p=6) Self-Determination Act (Public Law 93–638) [[25 U.S.C. 5321](/usc/25/5321.md) et seq.] or by an urban [Indian](/usc/42/6862.md?p=6) organization receiving [funds](/usc/42/12854.md?p=3) under title V of the [Indian](/usc/42/6862.md?p=6) Health Care Improvement Act [[25 U.S.C. 1651](/usc/25/1651.md) et seq.] for the provision of primary health services. In applying [clause (ii)](#l-2-B-ii),[^4] the [Secretary](/usc/42/1301.md?p=a-6) may waive any requirement referred to in such clause for up to 2 years for good [cause](/usc/42/9908.md?p=c-2) shown.

  - (3)
    - (A) The term “freestanding birth center services” means services furnished to an individual at a [freestanding birth center](#l-3-B) (as defined in [subparagraph (B)](#l-3-B)) at such center.
    - (B) The term “freestanding birth center” means a health [facility](/usc/42/11049.md?p=4)—
      - (i) that is not a [hospital](/usc/42/1395dd.md?p=e-5);
      - (ii) where childbirth is planned to occur away from the pregnant woman’s residence;
      - (iii) that is licensed or otherwise approved by the [State](/usc/42/1396b.md?p=w-7-D) to provide prenatal labor and delivery or postpartum care and other ambulatory services that are included in the plan; and
      - (iv) that complies with such other requirements relating to the health and safety of individuals furnished services by the [facility](/usc/42/11049.md?p=4) as the [State](/usc/42/1396b.md?p=w-7-D) shall establish.
    - (C) A [State](/usc/42/1396b.md?p=w-7-D) shall provide separate payments to providers administering prenatal labor and delivery or postpartum care in a [freestanding birth center](#l-3-B) (as defined in [subparagraph (B)](#l-3-B)), such as nurse midwives and other providers of services such as birth attendants recognized under [State](/usc/42/1396b.md?p=w-7-D) law, as determined appropriate by the [Secretary](/usc/42/1301.md?p=a-6). For purposes of the preceding sentence, the term “birth attendant” means an individual who is recognized or registered by the [State](/usc/42/1396b.md?p=w-7-D) involved to provide health care at childbirth and who provides such care within the scope of practice under which the individual is legally authorized to perform such care under [State](/usc/42/1396b.md?p=w-7-D) law (or the [State](/usc/42/1396b.md?p=w-7-D) regulatory mechanism provided by [State](/usc/42/1396b.md?p=w-7-D) law), regardless of whether the individual is under the supervision of, or associated with, a [physician](/usc/42/1301.md?p=a-7) or other [health care provider](/usc/42/300jj.md?p=3). Nothing in this subparagraph shall be construed as changing [State](/usc/42/1396b.md?p=w-7-D) law requirements applicable to a birth attendant.
- (m) **Qualified family member—**
  - (1) Subject to [paragraph (2)](#m-2), the term “qualified family member” means an individual (other than a [qualified pregnant woman or child](#n), as defined in [subsection (n)](#n)) who is a member of a [family](/usc/42/290ff–4.md?p=d-2) that would be receiving aid under the [State](/usc/42/1396b.md?p=w-7-D) plan under part A of subchapter IV pursuant to [section 607](/usc/42/607.md)[^1] of this title if the [State](/usc/42/1396b.md?p=w-7-D) had not exercised the option under [section 607(b)(2)(B)(i)](/usc/42/607.md)[^1] of this title.
  - (2) No individual shall be a qualified family member for any period after September 30, 1998.
- (n) **“Qualified pregnant woman or child” defined—** The term “qualified pregnant woman or child” means—
  - (1) a pregnant woman who—
    - (A) would be eligible for aid to [families](/usc/42/12704.md?p=11) with dependent [children](/usc/42/256e.md?p=g-2) under part A of subchapter IV (or would be eligible for such aid if coverage under the [State](/usc/42/1396b.md?p=w-7-D) plan under part A of subchapter IV included aid to [families](/usc/42/12704.md?p=11) with dependent [children](/usc/42/256e.md?p=g-2) of unemployed [parents](/usc/42/1396a.md?p=k-3) pursuant to [section 607 of this title](/usc/42/607.md)) if her [child](/usc/42/416.md?p=e) had been born and was living with her in the month such aid would be paid, and such pregnancy has been medically verified;
    - (B) is a member of a [family](/usc/42/290ff–4.md?p=d-2) which would be eligible for aid under the [State](/usc/42/1396b.md?p=w-7-D) plan under part A of subchapter IV pursuant to [section 607 of this title](/usc/42/607.md) if the plan required the payment of aid pursuant to such section; or
    - (C) otherwise meets the [income](/usc/42/292s.md?p=c-4) and resources requirements of a [State](/usc/42/1396b.md?p=w-7-D) plan under part A of subchapter IV; and
  - (2) a [child](/usc/42/416.md?p=e) who has not attained the age of 19, who was born after September 30, 1983 (or such earlier date as the [State](/usc/42/1396b.md?p=w-7-D) may designate), and who meets the [income](/usc/42/292s.md?p=c-4) and resources requirements of the [State](/usc/42/1396b.md?p=w-7-D) plan under part A of subchapter IV.
- (o) **Optional hospice benefits—**
  - (1)
    - (A) Subject to subparagraphs [(B)](#o-1-B) and [(C)](#o-1-C), the term “hospice care” means the care described in [section 1395x(dd)(1) of this title](/usc/42/1395x.md?p=dd-1) furnished by a hospice [program](/usc/42/274l–1.md?p=4) (as defined in [section 1395x(dd)(2) of this title](/usc/42/1395x.md?p=dd-2)) to a terminally ill individual who has voluntarily elected (in accordance with [paragraph (2)](#o-2)) to have payment made for hospice care instead of having payment made for certain benefits described in [section 1395d(d)(2)(A) of this title](/usc/42/1395d.md?p=d-2-A) and for which payment may otherwise be made under subchapter XVIII and [intermediate care facility services](/usc/42/1396n.md?p=d-5-C-iii) under the plan. For purposes of such election, hospice care may be provided to an individual while such individual is a resident of a [skilled nursing facility](/usc/42/1395x.md?p=j) or intermediate care [facility](/usc/42/11049.md?p=4), but the only payment made under the [State](/usc/42/1396b.md?p=w-7-D) plan shall be for the hospice care.
    - (B) For purposes of this subchapter, with respect to the definition of hospice [program](/usc/42/274l–1.md?p=4) under [section 1395x(dd)(2) of this title](/usc/42/1395x.md?p=dd-2), the [Secretary](/usc/42/1301.md?p=a-6) may allow an [agency](/usc/42/1397n–12.md?p=1) or organization to make the assurance under [subparagraph (A)(iii)](/usc/42/1395x.md?p=dd-2-A-iii) of such section without taking into account any individual who is afflicted with acquired immune deficiency syndrome (AIDS).
    - (C) A voluntary election to have payment made for [hospice care](#o-1-A) for a [child](/usc/42/416.md?p=e) (as defined by the [State](/usc/42/1396b.md?p=w-7-D)) shall not constitute a waiver of any rights of the [child](/usc/42/416.md?p=e) to be provided with, or to have payment made under this subchapter for, services that are related to the [treatment](/usc/42/11851.md?p=11) of the [child](/usc/42/416.md?p=e)’s condition for which a diagnosis of terminal illness has been made.
  - (2) An individual’s voluntary election under this subsection—
    - (A) shall be made in accordance with procedures that are established by the [State](/usc/42/1396b.md?p=w-7-D) and that are consistent with the procedures established under [section 1395d(d)(2) of this title](/usc/42/1395d.md?p=d-2);
    - (B) shall be for such a period or periods (which need not be the same periods described in [section 1395d(d)(1) of this title](/usc/42/1395d.md?p=d-1)) as the [State](/usc/42/1396b.md?p=w-7-D) may establish; and
    - (C) may be revoked at any time without a showing of [cause](/usc/42/9908.md?p=c-2) and may be [modified](/usc/42/7501.md?p=4) so as to change the hospice [program](/usc/42/274l–1.md?p=4) with respect to which a previous election was made.
  - (3) In the case of an individual—
    - (A) who is residing in a [nursing facility](/usc/42/1396r.md?p=a) or [intermediate care facility for the mentally retarded](#d) and is receiving medical assistance for services in such [facility](/usc/42/11049.md?p=4) under the plan,
    - (B) who is entitled to benefits under part A of subchapter XVIII and has elected, under [section 1395d(d) of this title](/usc/42/1395d.md?p=d), to receive [hospice care](#o-1-A) under such part, and
    - (C) with respect to whom the hospice [program](/usc/42/274l–1.md?p=4) under such subchapter and the [nursing facility](/usc/42/1396r.md?p=a) or [intermediate care facility for the mentally retarded](#d) have entered into a written [agreement](/usc/42/1320b–8.md?p=a-3-A) under which the [program](/usc/42/274l–1.md?p=4) takes full responsibility for the professional management of the individual’s [hospice care](#o-1-A) and the [facility](/usc/42/11049.md?p=4) agrees to provide room and [board](/usc/42/10261.md?p=2) to the individual,

    instead of any payment otherwise made under the plan with respect to the [facility](/usc/42/11049.md?p=4)’s services, the [State](/usc/42/1396b.md?p=w-7-D) shall provide for payment to the hospice [program](/usc/42/274l–1.md?p=4) of an amount equal to the additional amount determined in [section 1396a(a)(13)(B) of this title](/usc/42/1396a.md?p=a-13-B) and, if the individual is an individual described in [section 1396a(a)(10)(A) of this title](/usc/42/1396a.md?p=a-10-A), shall provide for payment of any coinsurance amounts imposed under [section 1395e(a)(4) of this title](/usc/42/1395e.md?p=a-4).

- (p) **Qualified medicare beneficiary; medicare cost-sharing—**
  - (1) The term “qualified medicare beneficiary” means an individual—
    - (A) who is entitled to [hospital](/usc/42/1395dd.md?p=e-5) insurance benefits under part A of subchapter XVIII ([including](/usc/42/1301.md?p=b) an individual entitled to such benefits pursuant to an enrollment under [section 1395i–2 of this title](/usc/42/1395i–2.md), but not [including](/usc/42/1301.md?p=b) an individual entitled to such benefits only pursuant to an enrollment under [section 1395i–2a of this title](/usc/42/1395i–2a.md)) or who is enrolled under part B for the purpose of coverage of immunosuppressive [drugs](/usc/42/282.md?p=j-1-A-vii) under [section 1395o(b)](/usc/42/1395o.md?p=b) of this title,
    - (B) whose [income](/usc/42/292s.md?p=c-4) (as determined under [section 1382a of this title](/usc/42/1382a.md) for purposes of the supplemental security [income](/usc/42/292s.md?p=c-4) [program](/usc/42/274l–1.md?p=4), except as provided in [paragraph (2)(D)](#p-2-D)) does not exceed an [income](/usc/42/292s.md?p=c-4) level established by the [State](/usc/42/1396b.md?p=w-7-D) consistent with [paragraph (2)](#p-2), and
    - (C) whose resources (as determined under [section 1382b of this title](/usc/42/1382b.md) for purposes of the supplemental security [income](/usc/42/292s.md?p=c-4) [program](/usc/42/274l–1.md?p=4)) do not exceed twice the maximum amount of resources that an individual may have and obtain benefits under that [program](/usc/42/274l–1.md?p=4) or, effective beginning with January 1, 2010, whose resources (as so determined) do not exceed the maximum resource level applied for the year under subparagraph (D) of [section 1395w–114(a)(3) of this title](/usc/42/1395w–114.md?p=a-3) (determined without regard to the life insurance policy exclusion provided under [subparagraph (G)](/usc/42/1395w–114.md?p=a-3-G) of such section) applicable to an individual or to the individual and the individual’s spouse (as the case may be).
  - (2)
    - (A) The [income](/usc/42/292s.md?p=c-4) level established under [paragraph (1)(B)](#p-1-B) shall be at least the percent provided under [subparagraph (B)](#p-2-B) (but not more than 100 percent) of the [official poverty line](/usc/42/254c–12.md?p=1) (as defined by the [Office](/usc/42/3058f.md?p=1) of Management and Budget, and revised annually in accordance with [section 9902(2) of this title](/usc/42/9902.md?p=2)) applicable to a [family](/usc/42/290ff–4.md?p=d-2) of the size involved.
    - (B) Except as provided in [subparagraph (C)](#p-2-C), the percent provided under this clause, with respect to eligibility for [medical assistance](#a) on or after—
      - (i) January 1, 1989, is 85 percent,
      - (ii) January 1, 1990, is 90 percent, and
      - (iii) January 1, 1991, is 100 percent.
    - (C) In the case of a [State](/usc/42/1396b.md?p=w-7-D) which has elected [treatment](/usc/42/11851.md?p=11) under [section 1396a(f) of this title](/usc/42/1396a.md?p=f) and which, as of January 1, 1987, used an [income](/usc/42/292s.md?p=c-4) [standard](/usc/42/1320d.md?p=7) for individuals age 65 or older which was more restrictive than the [income](/usc/42/292s.md?p=c-4) [standard](/usc/42/1320d.md?p=7) established under the supplemental security [income](/usc/42/292s.md?p=c-4) [program](/usc/42/274l–1.md?p=4) under subchapter XVI, the percent provided under [subparagraph (B)](#p-2-B), with respect to eligibility for [medical assistance](#a) on or after—
      - (i) January 1, 1989, is 80 percent,
      - (ii) January 1, 1990, is 85 percent,
      - (iii) January 1, 1991, is 95 percent, and
      - (iv) January 1, 1992, is 100 percent.
    - (D)
      - (i) In determining under this subsection the [income](/usc/42/292s.md?p=c-4) of an individual who is entitled to monthly insurance benefits under subchapter II for a [transition month](#p-2-D-ii) (as defined in [clause (ii)](#p-2-D-ii)) in a year, such [income](/usc/42/292s.md?p=c-4) shall not include any amounts attributable to an increase in the level of monthly insurance benefits payable under such subchapter which have occurred pursuant to [section 415(i) of this title](/usc/42/415.md?p=i) for benefits payable for months beginning with December of the previous year.
      - (ii) For purposes of [clause (i)](#p-2-D-i), the term “transition month” means each month in a year through the month following the month in which the annual revision of the [official poverty line](/usc/42/254c–12.md?p=1), referred to in [subparagraph (A)](#p-2-A), is published.
  - (3) The term “medicare cost-sharing” means (subject to [section 1396a(n)(2) of this title](/usc/42/1396a.md?p=n-2)) the following costs incurred with respect to a [qualified medicare beneficiary](#p-1), without regard to whether the costs incurred were for items and services for which [medical assistance](#a) is otherwise available under the plan:
    - (A)
      - (i) premiums under section [1395i–2](/usc/42/1395i–2.md) or [1395i–2a](/usc/42/1395i–2a.md) of this title, and
      - (ii) premiums under [section 1395r of this title](/usc/42/1395r.md),[^5]
    - (B) Coinsurance under subchapter XVIII ([including](/usc/42/1301.md?p=b) coinsurance described in [section 1395e of this title](/usc/42/1395e.md)).
    - (C) Deductibles established under subchapter XVIII ([including](/usc/42/1301.md?p=b) those described in [section 1395e of this title](/usc/42/1395e.md) and [section 1395l(b)](/usc/42/1395l.md?p=b) of this title).
    - (D) The difference between the amount that is paid under [section 1395l(a)](/usc/42/1395l.md?p=a) of this title and the amount that would be paid under such section if any reference to “80 percent” therein were deemed a reference to “100 percent”.

    Such term also may include, at the option of a [State](/usc/42/1396b.md?p=w-7-D), premiums for enrollment of a [qualified medicare beneficiary](#p-1) with an eligible organization under [section 1395mm of this title](/usc/42/1395mm.md).

  - (4) Notwithstanding any other provision of this subchapter, in the case of a [State](/usc/42/1396b.md?p=w-7-D) (other than the 50 [States](/usc/42/1396b.md?p=w-7-D) and the District of Columbia)—
    - (A) the requirement stated in [section 1396a(a)(10)(E) of this title](/usc/42/1396a.md?p=a-10-E) shall be optional, and
    - (B) for purposes of [paragraph (2)](#p-2), the [State](/usc/42/1396b.md?p=w-7-D) may substitute for the percent provided under [subparagraph (B)](#p-4-B)[^6] or[^7] [1396a(a)(10)(E)(iii)](/usc/42/1396a.md?p=a-10-E-iii) of this title of such paragraph[^6] any percent.

    In the case of any [State](/usc/42/1396b.md?p=w-7-D) which is providing [medical assistance](#a) to its residents under a waiver granted under [section 1315 of this title](/usc/42/1315.md), the [Secretary](/usc/42/1301.md?p=a-6) shall require the [State](/usc/42/1396b.md?p=w-7-D) to meet the requirement of [section 1396a(a)(10)(E) of this title](/usc/42/1396a.md?p=a-10-E) in the same manner as the [State](/usc/42/1396b.md?p=w-7-D) would be required to meet such requirement if the [State](/usc/42/1396b.md?p=w-7-D) had in effect a plan approved under this subchapter.

  - (5)
    - (A) The [Secretary](/usc/42/1301.md?p=a-6) shall develop and distribute to [States](/usc/42/1396b.md?p=w-7-D) a simplified application form for use by individuals ([including](/usc/42/1301.md?p=b) both [qualified medicare beneficiaries](#p-1) and specified low-[income](/usc/42/292s.md?p=c-4) medicare beneficiaries) in applying for [medical assistance](#a) for [medicare cost-sharing](#p-3) under this subchapter in the [States](/usc/42/1396b.md?p=w-7-D) which elect to use such form. Such form shall be easily readable by applicants and uniform nationally. The [Secretary](/usc/42/1301.md?p=a-6) shall provide for the translation of such application form into at least the 10 languages (other than English) that are most often used by individuals applying for [hospital](/usc/42/1395dd.md?p=e-5) insurance benefits under section [426](/usc/42/426.md) or [426–1](/usc/42/426–1.md) of this title and shall make the translated forms available to the [States](/usc/42/1396b.md?p=w-7-D) and to the [Commissioner](/usc/42/12302.md?p=1) of [Social](/usc/42/1397j.md?p=20) Security.
    - (B) In developing such form, the [Secretary](/usc/42/1301.md?p=a-6) shall consult with beneficiary groups and the [States](/usc/42/1396b.md?p=w-7-D).
  - (6) For provisions relating to outreach efforts to increase awareness of the availability of [medicare cost-sharing](#p-3), see [section 1320b–14 of this title](/usc/42/1320b–14.md).
- (q) **Qualified severely impaired individual—** The term “qualified severely impaired individual” means an individual under age 65—
  - (1) who for the month preceding the first month to which this subsection applies to such individual—
    - (A) received (i) a payment of [supplemental security income benefits](/usc/42/1382i.md?p=b-2) under [section 1382(b) of this title](/usc/42/1382.md?p=b) on the basis of blindness or disability, (ii) a supplementary payment under [section 1382e of this title](/usc/42/1382e.md) or under section 212 of Public Law 93–66 on such basis, (iii) a payment of monthly benefits under [section 1382h(a) of this title](/usc/42/1382h.md?p=a), or (iv) a supplementary payment under [section 1382e(c)(3)](/usc/42/1382e.md?p=c-3), and
    - (B) was eligible for medical assistance under the [State](/usc/42/1396b.md?p=w-7-D) plan approved under this subchapter; and
  - (2) with respect to whom the [Commissioner](/usc/42/12302.md?p=1) of [Social](/usc/42/1397j.md?p=20) Security determines that—
    - (A) the individual continues to be blind or continues to have the disabling physical or mental impairment on the basis of which he was found to be under a disability and, except for his earnings, continues to meet all non-disability-related requirements for eligibility for benefits under subchapter XVI,
    - (B) the [income](/usc/42/292s.md?p=c-4) of such individual would not, except for his earnings, be equal to or in excess of the amount which would [cause](/usc/42/9908.md?p=c-2) him to be ineligible for payments under [section 1382(b) of this title](/usc/42/1382.md?p=b) (if he were otherwise eligible for such payments),
    - (C) the lack of eligibility for benefits under this subchapter would seriously inhibit his ability to continue or obtain employment, and
    - (D) the individual’s earnings are not sufficient to allow him to provide for himself a reasonable equivalent of the benefits under subchapter XVI ([including](/usc/42/1301.md?p=b) any federally administered [State supplementary payments](#j)), this subchapter, and publicly funded attendant care services ([including](/usc/42/1301.md?p=b) personal care assistance) that would be available to him in the absence of such earnings.

  In the case of an individual who is eligible for medical assistance pursuant to [section 1382h(b) of this title](/usc/42/1382h.md?p=b) in June, 1987, the individual shall be a qualified severely impaired individual for so long as such individual meets the requirements of [paragraph (2)](#q-2).

- (r) **Early and periodic screening, diagnostic, and treatment services—** The term “early and periodic screening, diagnostic, and treatment services” means the following items and services:
  - (1) Screening services—
    - (A) which are provided—
      - (i) at intervals which meet reasonable [standards](/usc/42/1320d.md?p=7) of medical and dental practice, as determined by the [State](/usc/42/1396b.md?p=w-7-D) after consultation with recognized medical and dental organizations involved in [child](/usc/42/416.md?p=e) health care and, with respect to immunizations under [subparagraph (B)(iii)](#r-1-B-iii), in accordance with the schedule referred to in [section 1396s(c)(2)(B)(i) of this title](/usc/42/1396s.md?p=c-2-B-i) for pediatric vaccines, and
      - (ii) at such other intervals, indicated as medically necessary, to determine the existence of certain physical or mental illnesses or conditions; and
    - (B) which shall at a minimum include—
      - (i) a comprehensive health and developmental history ([including](/usc/42/1301.md?p=b) assessment of both physical and mental health development),
      - (ii) a comprehensive unclothed physical exam,
      - (iii) appropriate immunizations (according to the schedule referred to in [section 1396s(c)(2)(B)(i) of this title](/usc/42/1396s.md?p=c-2-B-i) for pediatric vaccines) according to age and health history,
      - (iv) [laboratory](/usc/42/300jj.md?p=10) tests ([including](/usc/42/1301.md?p=b) lead blood level assessment appropriate for age and risk factors), and
      - (v) health education ([including](/usc/42/1301.md?p=b) anticipatory guidance).
  - (2) Vision services—
    - (A) which are provided—
      - (i) at intervals which meet reasonable [standards](/usc/42/1320d.md?p=7) of medical practice, as determined by the [State](/usc/42/1396b.md?p=w-7-D) after consultation with recognized medical organizations involved in [child](/usc/42/416.md?p=e) health care, and
      - (ii) at such other intervals, indicated as medically necessary, to determine the existence of a suspected illness or condition; and
    - (B) which shall at a minimum include diagnosis and [treatment](/usc/42/11851.md?p=11) for defects in vision, [including](/usc/42/1301.md?p=b) eyeglasses.
  - (3) Dental services—
    - (A) which are provided—
      - (i) at intervals which meet reasonable [standards](/usc/42/1320d.md?p=7) of dental practice, as determined by the [State](/usc/42/1396b.md?p=w-7-D) after consultation with recognized dental organizations involved in [child](/usc/42/416.md?p=e) health care, and
      - (ii) at such other intervals, indicated as medically necessary, to determine the existence of a suspected illness or condition; and
    - (B) which shall at a minimum include relief of pain and infections, restoration of teeth, and maintenance of dental health.
  - (4) Hearing services—
    - (A) which are provided—
      - (i) at intervals which meet reasonable [standards](/usc/42/1320d.md?p=7) of medical practice, as determined by the [State](/usc/42/1396b.md?p=w-7-D) after consultation with recognized medical organizations involved in [child](/usc/42/416.md?p=e) health care, and
      - (ii) at such other intervals, indicated as medically necessary, to determine the existence of a suspected illness or condition; and
    - (B) which shall at a minimum include diagnosis and [treatment](/usc/42/11851.md?p=11) for defects in hearing, [including](/usc/42/1301.md?p=b) hearing aids.
  - (5) Such other necessary health care, diagnostic services, [treatment](/usc/42/11851.md?p=11), and other measures described in [subsection (a)](#a) to correct or ameliorate defects and physical and mental illnesses and conditions discovered by the screening services, whether or not such services are covered under the [State](/usc/42/1396b.md?p=w-7-D) plan.

  Nothing in this subchapter shall be construed as limiting providers of early and periodic screening, diagnostic, and treatment services to providers who are qualified to provide all of the items and services described in the previous sentence or as preventing a provider that is qualified under the plan to furnish one or more (but not all) of such items or services from being qualified to provide such items and services as part of early and periodic screening, diagnostic, and treatment services. The [Secretary](/usc/42/1301.md?p=a-6) shall, not later than July 1, 1990, and every 12 months thereafter, develop and set annual participation goals for each [State](/usc/42/1396b.md?p=w-7-D) for participation of individuals who are covered under the [State](/usc/42/1396b.md?p=w-7-D) plan under this subchapter in early and periodic screening, diagnostic, and treatment services.

- (s) **Qualified disabled and working individual—** The term “qualified disabled and working individual” means an individual—
  - (1) who is entitled to enroll for [hospital](/usc/42/1395dd.md?p=e-5) insurance benefits under part A of subchapter XVIII under [section 1395i–2a of this title](/usc/42/1395i–2a.md);
  - (2) whose [income](/usc/42/292s.md?p=c-4) (as determined under [section 1382a of this title](/usc/42/1382a.md) for purposes of the supplemental security [income](/usc/42/292s.md?p=c-4) [program](/usc/42/274l–1.md?p=4)) does not exceed 200 percent of the [official poverty line](/usc/42/254c–12.md?p=1) (as defined by the [Office](/usc/42/3058f.md?p=1) of Management and Budget and revised annually in accordance with [section 9902(2) of this title](/usc/42/9902.md?p=2)) applicable to a [family](/usc/42/290ff–4.md?p=d-2) of the size involved;
  - (3) whose resources (as determined under [section 1382b of this title](/usc/42/1382b.md) for purposes of the supplemental security [income](/usc/42/292s.md?p=c-4) [program](/usc/42/274l–1.md?p=4)) do not exceed twice the maximum amount of resources that an individual or a couple (in the case of an individual with a spouse) may have and obtain benefits for [supplemental security income benefits](/usc/42/1382i.md?p=b-2) under subchapter XVI; and
  - (4) who is not otherwise eligible for medical assistance under this subchapter.
- (t) **Primary care case management services; primary care case manager; primary care case management contract; and primary care—**
  - (1) The term “primary care case management services” means case-management related services ([including](/usc/42/1301.md?p=b) locating, coordinating, and monitoring of health care services) provided by a [primary care case manager](#t-2) under a [primary care case management contract](#t-3).
  - (2) The term “primary care case manager” means any of the following that provides services of the type described in [paragraph (1)](#t-1) under a contract referred to in such paragraph:
    - (A) A [physician](/usc/42/1301.md?p=a-7), a [physician](/usc/42/1301.md?p=a-7) group practice, or an entity employing or having other arrangements with [physicians](#e) to provide such services.
    - (B) At [State](/usc/42/1396b.md?p=w-7-D) option—
      - (i) a nurse [practitioner](/usc/42/1395a.md?p=b-6-C) (as described in [subsection (a)(21)](#a-21));
      - (ii) a certified nurse-midwife (as defined in [section 1395x(gg) of this title](/usc/42/1395x.md?p=gg)); or
      - (iii) a [physician](/usc/42/1301.md?p=a-7) assistant (as defined in [section 1395x(aa)(5) of this title](/usc/42/1395x.md?p=aa-5)).
  - (3) The term “primary care case management contract” means a contract between a [primary care case manager](#t-2) and a [State](/usc/42/1396b.md?p=w-7-D) under which the manager undertakes to locate, coordinate, and monitor covered [primary care](#t-4) (and such other covered services as may be specified under the contract) to all individuals enrolled with the manager, and which—
    - (A) provides for reasonable and adequate hours of operation, [including](/usc/42/1301.md?p=b) 24-hour availability of information, referral, and [treatment](/usc/42/11851.md?p=11) with respect to medical emergencies;
    - (B) restricts enrollment to individuals residing sufficiently near a service delivery site of the manager to be able to reach that site within a reasonable time using available and affordable modes of transportation;
    - (C) provides for arrangements with, or referrals to, sufficient numbers of [physicians](#e) and other appropriate health care professionals to ensure that services under the contract can be furnished to enrollees promptly and without compromise to quality of care;
    - (D) prohibits discrimination on the basis of health status or requirements for health care services in enrollment, disenrollment, or reenrollment of individuals eligible for medical assistance under this subchapter;
    - (E) provides for a right for an enrollee to terminate enrollment in accordance with [section 1396u–2(a)(4) of this title](/usc/42/1396u–2.md?p=a-4); and
    - (F) complies with the other applicable provisions of [section 1396u–2 of this title](/usc/42/1396u–2.md).
  - (4) For purposes of this subsection, the term “primary care” [includes](/usc/42/1301.md?p=b) all health care services customarily provided in accordance with [State](/usc/42/1396b.md?p=w-7-D) licensure and certification laws and regulations, and all [laboratory](/usc/42/300jj.md?p=10) services customarily provided by or through, a general [practitioner](/usc/42/1395a.md?p=b-6-C), [family](/usc/42/290ff–4.md?p=d-2) medicine [physician](/usc/42/1301.md?p=a-7), internal medicine [physician](/usc/42/1301.md?p=a-7), [obstetrician](/usc/42/1396r–4.md?p=d-2-B)/gynecologist, or pediatrician.
- (u) **Conditions for State plans—**
  - (1) The conditions described in this paragraph for a [State](/usc/42/1396b.md?p=w-7-D) plan are as follows:
    - (A) The [State](/usc/42/1396b.md?p=w-7-D) is complying with the requirement of [section 1397ee(d)(1) of this title](/usc/42/1397ee.md?p=d-1).
    - (B) The plan provides for such reporting of information about expenditures and payments attributable to the operation of this subsection as the [Secretary](/usc/42/1301.md?p=a-6) deems necessary in order to carry out the fourth sentence of [subsection (b)](#b).
  - (2)
    - (A) For purposes of [subsection (b)](#b), the expenditures described in this subparagraph are expenditures for medical assistance for optional targeted low-income children described in [subparagraph (B)](#u-2-B).
    - (B) For purposes of this paragraph, the term “optional targeted low-income child” means a targeted low-[income](/usc/42/292s.md?p=c-4) [child](/usc/42/416.md?p=e) as defined in [section 1397jj(b)(1) of this title](/usc/42/1397jj.md?p=b-1) (determined without regard to that portion of [subparagraph (C)](/usc/42/1397jj.md?p=b-1-C) of such section concerning eligibility for medical assistance under this subchapter) who would not qualify for medical assistance under the [State](/usc/42/1396b.md?p=w-7-D) plan under this subchapter as in effect on March 31, 1997 (but taking into account the expansion of age of eligibility effected through the operation of [section 1396a(l)(1)(D)](/usc/42/1396a.md?p=l-1-D) of this title). Such term excludes any [child](/usc/42/416.md?p=e) eligible for medical assistance only by reason of [section 1396a(a)(10)(A)(ii)(XIX) of this title](/usc/42/1396a.md?p=a-10-A-ii-XIX).
  - (3) For purposes of [subsection (b)](#b), the expenditures described in this paragraph are expenditures for medical assistance for [children](/usc/42/256e.md?p=g-2) who are born before October 1, 1983, and who would be described in [section 1396a(l)(1)(D)](/usc/42/1396a.md?p=l-1-D) of this title if they had been born on or after such date, and who are not eligible for such assistance under the [State](/usc/42/1396b.md?p=w-7-D) plan under this subchapter based on such [State](/usc/42/1396b.md?p=w-7-D) plan as in effect as of March 31, 1997.
  - (4) The limitations on payment under subsections (f) and (g) of [section 1308 of this title](/usc/42/1308.md) shall not apply to Federal payments made under [section 1396b(a)(1) of this title](/usc/42/1396b.md?p=a-1) based on an enhanced FMAP described in [section 1397ee(b) of this title](/usc/42/1397ee.md?p=b).
- (v) **Employed individual with a medically improved disability—**
  - (1) The term “employed individual with a medically improved disability” means an individual who—
    - (A) is at least 16 years of age;
    - (B) is employed (as defined in [paragraph (2)](#v-2));
    - (C) ceases to be eligible for medical assistance under [section 1396a(a)(10)(A)(ii)(XV) of this title](/usc/42/1396a.md?p=a-10-A-ii-XV) because the individual, by reason of medical improvement, is determined at the time of a regularly scheduled continuing disability review to no longer be eligible for benefits under section [423(d)](/usc/42/423.md?p=d) or [1382c(a)(3)](/usc/42/1382c.md?p=a-3) of this title; and
    - (D) continues to have a severe medically determinable impairment, as determined under regulations of the [Secretary](/usc/42/1301.md?p=a-6).
  - (2) For purposes of [paragraph (1)](#v-1), an individual is considered to be “employed” if the individual—
    - (A) is earning at least the applicable minimum wage requirement under [section 206 of title 29](/usc/29/206.md) and working at least 40 hours per month; or
    - (B) is engaged in a work effort that meets substantial and reasonable threshold criteria for hours of work, wages, or other measures, as defined by the [State](/usc/42/1396b.md?p=w-7-D) and approved by the [Secretary](/usc/42/1301.md?p=a-6).
- (w) **Independent foster care adolescent—**
  - (1) For purposes of this subchapter, the term “independent foster care adolescent” means an individual—
    - (A) who is under 21 years of age;
    - (B) who, on the individual’s 18th birthday, was in foster care under the responsibility of a [State](/usc/42/1396b.md?p=w-7-D); and
    - (C) whose assets, resources, and [income](/usc/42/292s.md?p=c-4) do not exceed such levels (if any) as the [State](/usc/42/1396b.md?p=w-7-D) may establish consistent with [paragraph (2)](#w-2).
  - (2) The levels established by a [State](/usc/42/1396b.md?p=w-7-D) under [paragraph (1)(C)](#w-1-C) may not be less than the corresponding levels applied by the [State](/usc/42/1396b.md?p=w-7-D) under [section 1396u–1(b) of this title](/usc/42/1396u–1.md?p=b).
  - (3) A [State](/usc/42/1396b.md?p=w-7-D) may limit the eligibility of [independent foster care adolescents](#w-1) under [section 1396a(a)(10)(A)(ii)(XVII) of this title](/usc/42/1396a.md?p=a-10-A-ii-XVII) to those individuals with respect to whom [foster care maintenance payments](/usc/42/672.md?p=b-2) or independent living services were furnished under a [program](/usc/42/274l–1.md?p=4) funded under part E of subchapter IV before the date the individuals attained 18 years of age.
- (x) **Strategies, treatment, and services—** For purposes of [subsection (a)(27)](#a-27), the strategies, [treatment](/usc/42/11851.md?p=11), and services described in that subsection include the following:
  - (1) Chronic blood transfusion (with deferoxamine chelation) to prevent stroke in individuals with Sickle Cell Disease who have been identified as being at high risk for stroke.
  - (2) Genetic counseling and testing for individuals with Sickle Cell Disease or the sickle cell trait to allow health care professionals to treat such individuals and to prevent symptoms of Sickle Cell Disease.
  - (3) Other [treatment](/usc/42/11851.md?p=11) and services to prevent individuals who have Sickle Cell Disease and who have had a stroke from having another stroke.
- (y) **Increased FMAP for medical assistance for newly eligible mandatory individuals—**
  - (1) **Amount of increase—** Notwithstanding [subsection (b)](#b), the Federal medical assistance percentage for a [State](/usc/42/1396b.md?p=w-7-D) that is one of the 50 [States](/usc/42/1396b.md?p=w-7-D) or the District of Columbia, with respect to amounts expended by such [State](/usc/42/1396b.md?p=w-7-D) for medical assistance for [newly eligible](#y-2-A) individuals described in subclause (VIII) of [section 1396a(a)(10)(A)(i) of this title](/usc/42/1396a.md?p=a-10-A-i), shall be equal to—
    - (A) 100 percent for calendar quarters in 2014, 2015, and 2016;
    - (B) 95 percent for calendar quarters in 2017;
    - (C) 94 percent for calendar quarters in 2018;
    - (D) 93 percent for calendar quarters in 2019; and
    - (E) 90 percent for calendar quarters in 2020 and each year thereafter.
  - (2) **Definitions—** In this subsection:
    - (A) **Newly eligible—** The term “newly eligible” means, with respect to an individual described in subclause (VIII) of [section 1396a(a)(10)(A)(i) of this title](/usc/42/1396a.md?p=a-10-A-i), an individual who is not under 19 years of age (or such higher age as the [State](/usc/42/1396b.md?p=w-7-D) may have elected) and who, as of December 1, 2009, is not eligible under the [State](/usc/42/1396b.md?p=w-7-D) plan or under a waiver of the plan for [full benefits](#y-2-B) or for benchmark coverage described in subparagraph (A), (B), or (C) of [section 1396u–7(b)(1) of this title](/usc/42/1396u–7.md?p=b-1) or benchmark equivalent coverage described in [section 1396u–7(b)(2) of this title](/usc/42/1396u–7.md?p=b-2) that has an aggregate actuarial value that is at least actuarially equivalent to benchmark coverage described in subparagraph (A), (B), or (C) of [section 1396u–7(b)(1) of this title](/usc/42/1396u–7.md?p=b-1), or is eligible but not enrolled (or is on a waiting list) for such benefits or coverage through a waiver under the plan that has a capped or limited enrollment that is full.
    - (B) **Full benefits—** The term “full benefits” means, with respect to an individual, medical assistance for all services covered under the [State](/usc/42/1396b.md?p=w-7-D) plan under this subchapter that is not less in amount, duration, or scope, or is determined by the [Secretary](/usc/42/1301.md?p=a-6) to be substantially equivalent, to the medical assistance available for an individual described in [section 1396a(a)(10)(A)(i) of this title](/usc/42/1396a.md?p=a-10-A-i).
- (z) **Equitable support for certain States—**
  - (1)
    - (A) During the period that begins on January 1, 2014, and ends on December 31, 2015, notwithstanding [subsection (b)](#b), the Federal medical assistance percentage otherwise determined under [subsection (b)](#b) with respect to a fiscal year occurring during that period shall be increased by 2.2 percentage points for any [State](/usc/42/1396b.md?p=w-7-D) described in [subparagraph (B)](#z-1-B) for amounts expended for medical assistance for individuals who are not [newly eligible](#y-2-A) (as defined in [subsection (y)(2)](#y-2)) individuals described in subclause (VIII) of [section 1396a(a)(10)(A)(i) of this title](/usc/42/1396a.md?p=a-10-A-i).
    - (B) For purposes of [subparagraph (A)](#z-1-A), a [State](/usc/42/1396b.md?p=w-7-D) described in this subparagraph is a [State](/usc/42/1396b.md?p=w-7-D) that—
      - (i) is an [expansion State](/usc/42/1396b.md?p=w-4-D-iii-I) described in [paragraph (3)](#z-3);
      - (ii) the [Secretary](/usc/42/1301.md?p=a-6) determines will not receive any payments under this subchapter on the basis of an increased Federal medical assistance percentage under [subsection (y)](#y) for expenditures for medical assistance for [newly eligible](#y-2-A) individuals (as so defined); and
      - (iii) has not been approved by the [Secretary](/usc/42/1301.md?p=a-6) to divert a portion of the DSH allotment for a [State](/usc/42/1396b.md?p=w-7-D) to the costs of providing medical assistance or other health benefits coverage under a waiver that is in effect on July 2009.[^8]
  - (2)
    - (A) For calendar quarters in 2014 and each year thereafter, the Federal medical assistance percentage otherwise determined under [subsection (b)](#b) for an [expansion State](/usc/42/1396b.md?p=w-4-D-iii-I) described in [paragraph (3)](#z-3) with respect to medical assistance for individuals described in [section 1396a(a)(10)(A)(i)(VIII) of this title](/usc/42/1396a.md?p=a-10-A-i-VIII) who are [nonpregnant childless adults](/usc/42/1397kk.md?p=c-2-B) with respect to whom the [State](/usc/42/1396b.md?p=w-7-D) may require enrollment in benchmark coverage under [section 1396u–7 of this title](/usc/42/1396u–7.md) shall be equal to the percent specified in [subparagraph (B)(i)](#z-2-B-i) for such year.
    - (B)
      - (i) The percent specified in this subparagraph for a [State](/usc/42/1396b.md?p=w-7-D) for a year is equal to the Federal medical assistance percentage (as defined in the first sentence of [subsection (b)](#b)) for the [State](/usc/42/1396b.md?p=w-7-D) increased by a number of percentage points equal to the transition percentage (specified in [clause (ii)](#z-2-B-ii) for the year) of the number of percentage points by which—
        - (I) such Federal medical assistance percentage for the [State](/usc/42/1396b.md?p=w-7-D), is less than
        - (II) the percent specified in [subsection (y)(1)](#y-1) for the year.
      - (ii) The transition percentage specified in this clause for—
        - (I) 2014 is 50 percent;
        - (II) 2015 is 60 percent;
        - (III) 2016 is 70 percent;
        - (IV) 2017 is 80 percent;
        - (V) 2018 is 90 percent; and
        - (VI) 2019 and each subsequent year is 100 percent.
  - (3) A [State](/usc/42/1396b.md?p=w-7-D) is an [expansion State](/usc/42/1396b.md?p=w-4-D-iii-I) if, on March 23, 2010, the [State](/usc/42/1396b.md?p=w-7-D) offers health benefits coverage statewide to [parents](/usc/42/1396a.md?p=k-3) and nonpregnant, childless adults whose [income](/usc/42/292s.md?p=c-4) is at least 100 percent of the [poverty line](/usc/42/1395w–114.md?p=a-3-C-ii), that [includes](/usc/42/1301.md?p=b) inpatient [hospital](/usc/42/1395dd.md?p=e-5) services, is not dependent on access to employer coverage, employer contribution, or employment and is not limited to premium assistance, [hospital](/usc/42/1395dd.md?p=e-5)-only benefits, a high deductible [health plan](/usc/42/300jj.md?p=6), or alternative benefits under a demonstration [program](/usc/42/274l–1.md?p=4) authorized under [section 1396u–8 of this title](/usc/42/1396u–8.md). A [State](/usc/42/1396b.md?p=w-7-D) that offers health benefits coverage to only [parents](/usc/42/1396a.md?p=k-3) or only [nonpregnant childless adults](/usc/42/1397kk.md?p=c-2-B) described in the preceding sentence shall not be considered to be an [expansion State](/usc/42/1396b.md?p=w-4-D-iii-I).
- (aa) **Special adjustment to FMAP determination for certain States recovering from a major disaster—**
  - (1) Notwithstanding [subsection (b)](#b), beginning January 1, 2011, the Federal medical assistance percentage for a fiscal year for a [disaster-recovery FMAP adjustment State](#aa-2) shall be equal to the following:
    - (A) In the case of the first fiscal year (or part of a fiscal year) for which this subsection applies to the [State](/usc/42/1396b.md?p=w-7-D), the [State](/usc/42/1396b.md?p=w-7-D)’s [regular FMAP](#aa-3) shall be increased by 50 percent of the number of percentage points by which the [State](/usc/42/1396b.md?p=w-7-D)’s [regular FMAP](#aa-3) for such fiscal year is less than the Federal medical assistance percentage determined for the [State](/usc/42/1396b.md?p=w-7-D) for the preceding fiscal year after the application of only subsection (a) of section 5001 of Public Law 111–5 (if applicable to the preceding fiscal year) and without regard to this subsection, subsections [(y)](#y) and [(z)](#z), and subsections (b) and (c) of section 5001 of Public Law 111–5.
    - (B) In the case of the second or any succeeding fiscal year for which this subsection applies to the [State](/usc/42/1396b.md?p=w-7-D), the [State](/usc/42/1396b.md?p=w-7-D)’s [regular FMAP](#aa-3) for such fiscal year shall be increased by 25 percent (or 50 percent in the case of fiscal year 2013) of the number of percentage points by which the [State](/usc/42/1396b.md?p=w-7-D)’s [regular FMAP](#aa-3) for such fiscal year is less than the Federal medical assistance percentage received by the [State](/usc/42/1396b.md?p=w-7-D) during the preceding fiscal year.
  - (2) In this subsection, the term “disaster-recovery FMAP adjustment State” means a [State](/usc/42/1396b.md?p=w-7-D) that is one of the 50 [States](/usc/42/1396b.md?p=w-7-D) or the District of Columbia, for which, at any time during the preceding 7 fiscal years, the President has declared a [major disaster](/usc/42/5302.md?p=a-25) under [section 401](/usc/42/401.md) of the Robert T. Stafford [Disaster](/usc/42/5204.md?p=2) Relief and Emergency Assistance Act [[42 U.S.C. 5170](/usc/42/5170.md)] and determined as a result of such [disaster](/usc/42/5204.md?p=2) that every county or parish in the [State](/usc/42/1396b.md?p=w-7-D) warrant individual and public assistance or public assistance from the Federal Government under such Act [[42 U.S.C. 5121](/usc/42/5121.md) et seq.] and for which—
    - (A) in the case of the first fiscal year (or part of a fiscal year) for which this subsection applies to the [State](/usc/42/1396b.md?p=w-7-D), the [State](/usc/42/1396b.md?p=w-7-D)’s [regular FMAP](#aa-3) for the fiscal year is less than the Federal medical assistance percentage determined for the [State](/usc/42/1396b.md?p=w-7-D) for the preceding fiscal year after the application of only subsection (a) of section 5001 of Public Law 111–5 (if applicable to the preceding fiscal year) and without regard to this subsection, subsections [(y)](#y) and [(z)](#z), and subsections (b) and (c) of section 5001 of Public Law 111–5, by at least 3 percentage points; and
    - (B) in the case of the second or any succeeding fiscal year for which this subsection applies to the [State](/usc/42/1396b.md?p=w-7-D), the [State](/usc/42/1396b.md?p=w-7-D)’s [regular FMAP](#aa-3) for the fiscal year is less than the Federal medical assistance percentage determined for the [State](/usc/42/1396b.md?p=w-7-D) for the preceding fiscal year under this subsection by at least 3 percentage points.
  - (3) In this subsection, the term “regular FMAP” means, for each fiscal year for which this subsection applies to a [State](/usc/42/1396b.md?p=w-7-D), the Federal medical assistance percentage that would otherwise apply to the [State](/usc/42/1396b.md?p=w-7-D) for the fiscal year, as determined under [subsection (b)](#b) and without regard to this subsection, subsections [(y)](#y) and [(z)](#z), and [section 10202](/usc/42/10202.md) of the Patient Protection and Affordable Care Act.
  - (4) The Federal medical assistance percentage determined for a [disaster-recovery FMAP adjustment State](#aa-2) under [paragraph (1)](#aa-1) shall apply for purposes of this subchapter (other than with respect to disproportionate share [hospital](/usc/42/1395dd.md?p=e-5) payments described in [section 1396r–4 of this title](/usc/42/1396r–4.md) and payments under this subchapter that are based on the enhanced FMAP described in 1397ee(b)[^9] of this title) and shall not apply with respect to payments under subchapter IV (other than under part E of subchapter IV) or payments under subchapter XXI.
- (bb) **Counseling and pharmacotherapy for cessation of tobacco use by pregnant women—**
  - (1) For purposes of this subchapter, the term “counseling and pharmacotherapy for cessation of tobacco use by pregnant women” means diagnostic, therapy, and counseling services and pharmacotherapy ([including](/usc/42/1301.md?p=b) the coverage of prescription and nonprescription tobacco cessation agents approved by the Food and [Drug](/usc/42/282.md?p=j-1-A-vii) [Administration](/usc/42/1301.md?p=a-10)) for cessation of tobacco use by pregnant women who use tobacco products or who are being treated for tobacco use that is furnished—
    - (A) by or under the supervision of a [physician](/usc/42/1301.md?p=a-7); or
    - (B) by any other health care professional who—
      - (i) is legally authorized to furnish such services under [State](/usc/42/1396b.md?p=w-7-D) law (or the [State](/usc/42/1396b.md?p=w-7-D) regulatory mechanism provided by [State](/usc/42/1396b.md?p=w-7-D) law) of the [State](/usc/42/1396b.md?p=w-7-D) in which the services are furnished; and
      - (ii) is authorized to receive payment for other services under this subchapter or is designated by the [Secretary](/usc/42/1301.md?p=a-6) for this purpose.
  - (2) Subject to [paragraph (3)](#bb-3), such term is limited to—
    - (A) services recommended with respect to pregnant women in “Treating Tobacco Use and Dependence: 2008 Update: A Clinical Practice Guideline”, published by the Public Health Service in May 2008, or any subsequent [modification](/usc/42/7501.md?p=4) of such Guideline; and
    - (B) such other services that the [Secretary](/usc/42/1301.md?p=a-6) recognizes to be effective for cessation of tobacco use by pregnant women.
  - (3) Such term shall not include coverage for [drugs](/usc/42/282.md?p=j-1-A-vii) or biologicals that are not otherwise covered under this subchapter.
- (cc) **Requirement for certain States—** Notwithstanding subsections [(y)](#y), [(z)](#z), and [(aa)](#aa), in the case of a [State](/usc/42/1396b.md?p=w-7-D) that requires political subdivisions within the [State](/usc/42/1396b.md?p=w-7-D) to contribute toward the non-Federal share of expenditures required under the [State](/usc/42/1396b.md?p=w-7-D) plan under [section 1396a(a)(2) of this title](/usc/42/1396a.md?p=a-2), the [State](/usc/42/1396b.md?p=w-7-D) shall not be eligible for an increase in its Federal medical assistance percentage under such subsections if it requires that political subdivisions pay a greater percentage of the non-Federal share of such expenditures, or a greater percentage of the non-Federal share of payments under [section 1396r–4 of this title](/usc/42/1396r–4.md), than the respective percentages that would have been required by the [State](/usc/42/1396b.md?p=w-7-D) under the [State](/usc/42/1396b.md?p=w-7-D) plan under this subchapter, [State](/usc/42/1396b.md?p=w-7-D) law, or both, as in effect on December 31, 2009, and without regard to any such increase. Voluntary contributions by a political subdivision to the non-Federal share of expenditures under the [State](/usc/42/1396b.md?p=w-7-D) plan under this subchapter or to the non-Federal share of payments under [section 1396r–4 of this title](/usc/42/1396r–4.md), shall not be considered to be required contributions for purposes of this subsection. The [treatment](/usc/42/11851.md?p=11) of voluntary contributions, and the [treatment](/usc/42/11851.md?p=11) of contributions required by a [State](/usc/42/1396b.md?p=w-7-D) under the [State](/usc/42/1396b.md?p=w-7-D) plan under this subchapter, or [State](/usc/42/1396b.md?p=w-7-D) law, as provided by this subsection, shall also apply to the increases in the Federal medical assistance percentage under [section 5001](/usc/42/5001.md) of the American Recovery and Reinvestment Act of 2009 and section 6008 of the [Families](/usc/42/12704.md?p=11) First Coronavirus Response Act, except that in applying such [treatments](/usc/42/11851.md?p=11) to the increases in the Federal medical assistance percentage under section 6008 of the [Families](/usc/42/12704.md?p=11) First Coronavirus Response Act, the reference to “December 31, 2009” shall be deemed to be a reference to “March 11, 2020”.
- (dd) **Increased FMAP for additional expenditures for primary care services—** Notwithstanding [subsection (b)](#b), with respect to the portion of the amounts expended for medical assistance for services described in [section 1396a(a)(13)(C) of this title](/usc/42/1396a.md?p=a-13-C) furnished on or after January 1, 2013, and before January 1, 2015, that is attributable to the amount by which the minimum payment rate required under such section (or, by application, [section 1396u–2(f) of this title](/usc/42/1396u–2.md?p=f)) exceeds the payment rate applicable to such services under the [State](/usc/42/1396b.md?p=w-7-D) plan as of July 1, 2009, the Federal medical assistance percentage for a [State](/usc/42/1396b.md?p=w-7-D) that is one of the 50 [States](/usc/42/1396b.md?p=w-7-D) or the District of Columbia shall be equal to 100 percent. The preceding sentence does not prohibit the payment of Federal financial participation based on the Federal medical assistance percentage for amounts in excess of those specified in such sentence.
- (ee) **Medication-assisted treatment—**
  - (1) **Definition—** For purposes of [subsection (a)(29)](#a-29), the term “medication-assisted treatment”—
    - (A) means all [drugs](/usc/42/282.md?p=j-1-A-vii) approved under [section 355 of title 21](/usc/21/355.md), [including](/usc/42/1301.md?p=b) methadone, and all [biological products](/usc/42/287a.md?p=a-1) licensed under [section 262 of this title](/usc/42/262.md) to treat opioid use disorders; and
    - (B) [includes](/usc/42/1301.md?p=b), with respect to the provision of such [drugs](/usc/42/282.md?p=j-1-A-vii) and [biological products](/usc/42/287a.md?p=a-1), counseling services and behavioral therapy.
  - (2) **Exception—** The provisions of [paragraph (29)](#a-29) of subsection (a) shall not apply with respect to a [State](/usc/42/1396b.md?p=w-7-D) if such [State](/usc/42/1396b.md?p=w-7-D) certifies, not less than every 5 years and to the satisfaction of the [Secretary](/usc/42/1301.md?p=a-6), that implementing such provisions statewide for all individuals eligible to enroll in the [State](/usc/42/1396b.md?p=w-7-D) plan (or waiver of the [State](/usc/42/1396b.md?p=w-7-D) plan) would not be feasible by reason of a shortage of qualified providers of medication-assisted treatment, or [facilities](/usc/42/11049.md?p=4) providing such [treatment](/usc/42/11851.md?p=11), that will contract with the [State](/usc/42/1396b.md?p=w-7-D) or a [managed care entity](/usc/42/1396b.md?p=m-9-D-i) with which the [State](/usc/42/1396b.md?p=w-7-D) has a contract under [section 1396b(m) of this title](/usc/42/1396b.md?p=m) or under [section 1396d(t)(3) of this title](#t-3).
  - (3) **Application of rebate requirements—** The requirements of [section 1396r–8 of this title](/usc/42/1396r–8.md) shall apply to any [drug](/usc/42/282.md?p=j-1-A-vii) or [biological product](/usc/42/287a.md?p=a-1) described in [paragraph (1)(A)](#ee-1-A) that is—
    - (A) furnished as medical assistance in accordance with [subsection (a)(29)](#a-29) and [section 1396a(a)(10)(A) of this title](/usc/42/1396a.md?p=a-10-A); and
    - (B) a [covered outpatient drug](/usc/42/1396r–8.md?p=k-3) (as defined in [section 1396r–8(k) of this title](/usc/42/1396r–8.md?p=k), except that, in applying [paragraph (2)(A)](/usc/42/1396r–8.md?p=k-2-A) of such section to a [drug](/usc/42/282.md?p=j-1-A-vii) described in [paragraph (1)(A)](#ee-1-A), such [drug](/usc/42/282.md?p=j-1-A-vii) shall be deemed a prescribed [drug](/usc/42/282.md?p=j-1-A-vii) for purposes of [subsection (a)(12)](#a-12)).
- (ff) **Increase in FMAP for territories for certain fiscal years—** Notwithstanding subsection [(b)](#b) or [(z)(2)](#z-2), subject to subsections [(hh)](#hh) and [(ii)](#ii)—
  - (1) for the period beginning October 1, 2019, and ending December 20, 2019, the Federal medical assistance percentage for Puerto Rico, the Virgin Islands, Guam, the Northern Mariana Islands, and American Samoa shall be equal to 100 percent;
  - (2) for the period beginning December 21, 2019, and ending December 3, 2021, and for the period beginning January 1, 2022, and ending September 30, 2027, the Federal medical assistance percentage for Puerto Rico shall be equal to 76 percent; and
  - (3) subject to [section 1308(g)(8)(B) of this title](/usc/42/1308.md?p=g-8-B), beginning December 21, 2019, the Federal medical assistance percentage for the Virgin Islands, Guam, the Northern Mariana Islands, and American Samoa shall be equal to 83 percent.
- (gg)
  - (1) **Routine patient costs—** For purposes of [subsection (a)(30)](#a-30), with respect to a [State](/usc/42/1396b.md?p=w-7-D) and an individual enrolled under the [State](/usc/42/1396b.md?p=w-7-D) plan (or a waiver of such plan) who participates in a [qualifying clinical trial](#gg-2-A), routine patient costs—
    - (A) include any item or service provided to the individual under the [qualifying clinical trial](#gg-2-A), [including](/usc/42/1301.md?p=b)—
      - (i) any item or service provided to prevent, diagnose, monitor, or treat complications resulting from such participation, to the extent that the provision of such an item or service to the individual outside the course of such participation would otherwise be covered under the [State](/usc/42/1396b.md?p=w-7-D) plan or waiver; and
      - (ii) any item or service required solely for the provision of the investigational item or service that is the subject of such trial, [including](/usc/42/1301.md?p=b) the [administration](/usc/42/1301.md?p=a-10) of such investigational item or service; and
    - (B) does not include—
      - (i) an item or service that is the investigational item or service that is—
        - (I) the subject of the [qualifying clinical trial](#gg-2-A); and
        - (II) not otherwise covered outside of the clinical trial under the [State](/usc/42/1396b.md?p=w-7-D) plan or waiver; or
      - (ii) an item or service that is—
        - (I) provided to the individual solely to satisfy data collection and analysis needs for the [qualifying clinical trial](#gg-2-A) and is not used in the direct clinical management of the individual; and
        - (II) not otherwise covered under the [State](/usc/42/1396b.md?p=w-7-D) plan or waiver.
  - (2) **Qualifying clinical trial defined—**
    - (A) **In general—** For purposes of this subsection and [subsection (a)(30)](#a-30), the term “qualifying clinical trial” means a clinical trial (in any clinical phase of development) that is conducted in relation to the prevention, detection, or [treatment](/usc/42/11851.md?p=11) of any serious or life-threatening disease or condition and is described in any of the following clauses:
      - (i) The study or investigation is approved, conducted, or supported (which may include funding through in-kind contributions) by one or more of the following:
        - (I) The National Institutes of Health.
        - (II) The Centers for Disease Control and Prevention.
        - (III) The [Agency](/usc/42/1397n–12.md?p=1) for Healthcare Research and Quality.
        - (IV) The Centers for Medicare & [Medicaid](/usc/42/1396b.md?p=w-3-E-iii-III-aa) Services.
        - (V) A cooperative group or center of any of the entities described in [subclauses (I) through (IV)](#gg-2-A-i-I..gg-2-A-i-IV) or the Department of Defense or the Department of Veterans Affairs.
        - (VI) A qualified non-governmental research entity identified in the guidelines issued by the National Institutes of Health for center support [grants](/usc/42/1397j.md?p=10).
        - (VII) Any of the following if the conditions described in [subparagraph (B)](#gg-2-B) are met:
          - (aa) The Department of Veterans Affairs.
          - (bb) The Department of Defense.
          - (cc) The Department of [Energy](/usc/42/6311.md?p=7).
      - (ii) The clinical trial is conducted pursuant to an investigational new [drug](/usc/42/282.md?p=j-1-A-vii) exemption under [section 355(i) of title 21](/usc/21/355.md?p=i) or an exemption for a [biological product](/usc/42/287a.md?p=a-1) undergoing investigation under [section 262(a)(3) of this title](/usc/42/262.md?p=a-3).
      - (iii) The clinical trial is a [drug](/usc/42/282.md?p=j-1-A-vii) trial that is exempt from being required to have an exemption described in [clause (ii)](#gg-2-A-ii).
    - (B) **Conditions—** For purposes of [subparagraph (A)(i)(VII)](#gg-2-A-i-VII), the conditions described in this subparagraph, with respect to a clinical trial approved or funded by an entity described in such [subparagraph (A)(i)(VII)](#gg-2-A-i-VII), are that the clinical trial has been reviewed and approved through a system of peer review that the [Secretary](/usc/42/1301.md?p=a-6) determines—
      - (i) to be comparable to the system of peer review of studies and investigations used by the National Institutes of Health; and
      - (ii) assures unbiased review of the highest scientific [standards](/usc/42/1320d.md?p=7) by [qualified individuals](/usc/42/18032.md?p=f-1-A) with no interest in the outcome of the review.
  - (3) **Coverage determination requirements—** A determination with respect to coverage under [subsection (a)(30)](#a-30) for an individual participating in a [qualifying clinical trial](#gg-2-A)—
    - (A) shall be expedited and completed within 72 hours;
    - (B) shall be made without limitation on the geographic location or network affiliation of the [health care provider](/usc/42/300jj.md?p=3) treating such individual or the principal investigator of the [qualifying clinical trial](#gg-2-A);
    - (C) shall be based on attestation regarding the appropriateness of the [qualifying clinical trial](#gg-2-A) by the [health care provider](/usc/42/300jj.md?p=3) and principal investigator described in [subparagraph (B)](#gg-3-B), which shall be made using a streamlined, uniform form developed for [State](/usc/42/1396b.md?p=w-7-D) use by the [Secretary](/usc/42/1301.md?p=a-6) and that [includes](/usc/42/1301.md?p=b) the option to reference information regarding the [qualifying clinical trial](#gg-2-A) that is publicly available on a website maintained by the [Secretary](/usc/42/1301.md?p=a-6), such as clinicaltrials.gov (or a successor website); and
    - (D) shall not require submission of the protocols of the [qualifying clinical trial](#gg-2-A), or any other documentation that may be proprietary or determined by the [Secretary](/usc/42/1301.md?p=a-6) to be burdensome to provide.
- (hh) **Temporary increased FMAP for medical assistance for coverage and administration of COVID–19 vaccines—**
  - (1) **In general—** Notwithstanding any other provision of this subchapter, during the period described in [paragraph (2)](#hh-2), the Federal medical assistance percentage for a [State](/usc/42/1396b.md?p=w-7-D), with respect to amounts expended by the [State](/usc/42/1396b.md?p=w-7-D) for medical assistance for a vaccine described in subsection (a)(4)(E) (and the [administration](/usc/42/1301.md?p=a-10) of such a vaccine), shall be equal to 100 percent.
  - (2) **Period described—** The period described in this paragraph is the period that—
    - (A) begins on the first day of the first quarter beginning after March 11, 2021; and
    - (B) ends on the last day of the first quarter that begins one year after the last day of the emergency period described in [section 1320b–5(g)(1)(B) of this title](/usc/42/1320b–5.md?p=g-1-B).
  - (3) **Exclusion of expenditures from territorial caps—** Any payment made to a territory for expenditures for medical assistance under subsection (a)(4)(E) that are subject to the Federal medical assistance percentage specified under [paragraph (1)](#hh-1) shall not be taken into account for purposes of applying payment limits under subsections (f) and (g) of [section 1308 of this title](/usc/42/1308.md).
- (ii) **Temporary increase in FMAP for medical assistance under State medicaid plans which begin to expend amounts for certain mandatory individuals—**
  - (1) **In general—** For each quarter occurring during the 8-quarter period beginning with the first calendar quarter during which a [qualifying State](#ii-3) (as defined in [paragraph (3)](#ii-3)) expends amounts for all individuals described in [section 1396a(a)(10)(A)(i)(VIII) of this title](/usc/42/1396a.md?p=a-10-A-i-VIII) under the [State](/usc/42/1396b.md?p=w-7-D) plan (or waiver of such plan), the Federal medical assistance percentage determined under [subsection (b)](#b) for such [State](/usc/42/1396b.md?p=w-7-D) shall, after application of any increase, if applicable, under section 6008 of the [Families](/usc/42/12704.md?p=11) First Coronavirus Response Act, be increased by 5 percentage points, except for any quarter (and each subsequent quarter) during such period during which the [State](/usc/42/1396b.md?p=w-7-D) ceases to provide medical assistance to any such individual under the [State](/usc/42/1396b.md?p=w-7-D) plan (or waiver of such plan).
  - (2) **Special application rules—** Any increase described in [paragraph (1)](#ii-1) (or payment made for expenditures on medical assistance that are subject to such increase)—
    - (A) shall not apply with respect to disproportionate share [hospital](/usc/42/1395dd.md?p=e-5) payments described in [section 1396r–4 of this title](/usc/42/1396r–4.md);
    - (B) shall not be taken into account in calculating the enhanced FMAP of a [State](/usc/42/1396b.md?p=w-7-D) under [section 1397ee of this title](/usc/42/1397ee.md);
    - (C) shall not be taken into account for purposes of part A, D, or E of subchapter IV; and
    - (D) shall not be taken into account for purposes of applying payment limits under subsections (f) and (g) of [section 1308 of this title](/usc/42/1308.md).
  - (3) **Definition—** For purposes of this subsection, the term “qualifying State” means a [State](/usc/42/1396b.md?p=w-7-D) which—
    - (A) has not expended amounts for all individuals described in [section 1396a(a)(10)(A)(i)(VIII) of this title](/usc/42/1396a.md?p=a-10-A-i-VIII) before March 11, 2021; and
    - (B) begins to expend amounts for all such individuals prior to January 1, 2026.
- (jj) **Certified community behavioral health clinic services—**
  - (1) **In general—** The term “certified community behavioral health services” means any of the following services when furnished to an individual as a patient of a [certified community behavioral health clinic](#jj-2) (as defined in [paragraph (2)](#jj-2)), in a manner reflecting [person](/usc/42/1301.md?p=a-3)-centered care and which, if not available directly through a [certified community behavioral health clinic](#jj-2), may be provided or referred through formal relationships with other providers:
    - (A) Crisis mental health services, [including](/usc/42/1301.md?p=b) 24-hour mobile crisis teams, emergency crisis [intervention](/usc/42/1397n–12.md?p=2) services, and crisis stabilization.
    - (B) Screening, assessment, and diagnosis, [including](/usc/42/1301.md?p=b) risk assessment.
    - (C) Patient-centered [treatment](/usc/42/11851.md?p=11) planning or similar processes, [including](/usc/42/1301.md?p=b) risk assessment and crisis planning.
    - (D) Outpatient mental health and substance use services.
    - (E) Outpatient clinic primary care screening and monitoring of key health indicators and health risk.
    - (F) Intensive case management services.
    - (G) Psychiatric rehabilitation services.
    - (H) Peer support and counselor services and [family](/usc/42/290ff–4.md?p=d-2) supports.
    - (I) Intensive, community-based mental health care for members of the armed forces and veterans who are eligible for medical assistance, particularly such members and veterans located in rural areas, provided the care is consistent with minimum clinical mental health guidelines promulgated by the Veterans Health [Administration](/usc/42/1301.md?p=a-10), [including](/usc/42/1301.md?p=b) clinical guidelines contained in the Uniform Mental Health Services Handbook of such [Administration](/usc/42/1301.md?p=a-10).
  - (2) **Certified community behavioral health clinic—** The term “certified community behavioral health clinic” means an organization that—
    - (A) has been certified by a [State](/usc/42/1396b.md?p=w-7-D) as meeting the criteria established by the [Secretary](/usc/42/1301.md?p=a-6) pursuant to subsection (a) of section 223 of the Protecting Access to Medicare Act[^1] as of January 1, 2024, and any subsequent updates to such criteria, regardless of whether the [State](/usc/42/1396b.md?p=w-7-D) is carrying out a demonstration [program](/usc/42/274l–1.md?p=4) under this subchapter under [subsection (d)](#d) of such section;
    - (B) is engaged in furnishing all of the services described in [paragraph (1)](#jj-1); and
    - (C) agrees, as a condition of the certification described in [subparagraph (A)](#jj-2-A), to furnish to the [State](/usc/42/1396b.md?p=w-7-D) or [Secretary](/usc/42/1301.md?p=a-6) any data required as part of ongoing monitoring of the organization’s provision of services, [including](/usc/42/1301.md?p=b) encounter data, clinical outcomes data, quality data, and such other data as the [State](/usc/42/1396b.md?p=w-7-D) or [Secretary](/usc/42/1301.md?p=a-6) may require.
- (kk) **FMAP for treatment of an emergency medical condition—** Notwithstanding subsection[^10] (y) and (z), beginning on October 1, 2026, the Federal medical assistance percentage for payments for care and services described in paragraph (2) of subsection[^11] 1396b(v) of this title furnished to an alien described in paragraph (1) of such subsection[^11] shall not exceed the Federal medical assistance percentage determined under [subsection (b)](#b) for such [State](/usc/42/1396b.md?p=w-7-D).

# §1396e. Enrollment of individuals under group health plans

- (a) **Requirements of each State plan; guidelines—** Each [State](/usc/42/1396b.md?p=w-7-D) plan—
  - (1) may implement guidelines established by the [Secretary](/usc/42/1301.md?p=a-6), consistent with [subsection (b)](#b), to identify those cases in which enrollment of an individual otherwise entitled to medical assistance under this subchapter in a [group health plan](#e-1) (in which the individual is otherwise eligible to be enrolled) is [cost-effective](#e-2) (as defined in [subsection (e)(2)](#e-2));
  - (2) may require, in case of an individual so identified and as a condition of the individual being or remaining eligible for medical assistance under this subchapter and subject to [subsection (b)(2)](#b-2), notwithstanding any other provision of this subchapter, that the individual (or in the case of a [child](/usc/42/416.md?p=e), the [child](/usc/42/416.md?p=e)’s [parent](/usc/42/1396a.md?p=k-3)) apply for enrollment in the [group health plan](#e-1); and
  - (3) in the case of such enrollment (except as provided in [subsection (c)(1)(B)](#c-1-B)), shall provide for payment of all enrollee premiums for such enrollment and all deductibles, coinsurance, and other [cost-sharing](/usc/42/18022.md?p=c-3-A) obligations for items and services otherwise covered under the [State](/usc/42/1396b.md?p=w-7-D) plan under this subchapter (exceeding the amount otherwise permitted under [section 1396o](/usc/42/1396o.md) of this title), and shall treat coverage under the [group health plan](#e-1) as a third party liability (under [section 1396a(a)(25) of this title](/usc/42/1396a.md?p=a-25)).
- (b) **Timing of enrollment; failure to enroll—**
  - (1) In establishing guidelines under [subsection (a)(1)](#a-1), the [Secretary](/usc/42/1301.md?p=a-6) shall take into account that an individual may only be eligible to enroll in [group health plans](#e-1) at limited times and only if other individuals (not entitled to medical assistance under the plan) are also enrolled in the plan simultaneously.
  - (2) If a [parent](/usc/42/1396a.md?p=k-3) of a [child](/usc/42/416.md?p=e) fails to enroll the [child](/usc/42/416.md?p=e) in a [group health plan](#e-1) in accordance with [subsection (a)(2)](#a-2), such failure shall not affect the [child](/usc/42/416.md?p=e)’s eligibility for benefits under this subchapter.
- (c) **Premiums considered payments for medical assistance; eligibility—**
  - (1)
    - (A) In the case of payments of premiums, deductibles, coinsurance, and other [cost-sharing](/usc/42/18022.md?p=c-3-A) obligations under this section shall be considered, for purposes of [section 1396b(a) of this title](/usc/42/1396b.md?p=a), to be payments for medical assistance.
    - (B) If all members of a [family](/usc/42/290ff–4.md?p=d-2) are not eligible for medical assistance under this subchapter and enrollment of the members so eligible in a [group health plan](#e-1) is not possible without also enrolling members not so eligible—
      - (i) payment of premiums for enrollment of such other members shall be treated as payments for medical assistance for [eligible individuals](/usc/42/239.md?p=a-6), if it would be [cost-effective](#e-2) (taking into account payment of all such premiums), but
      - (ii) payment of deductibles, coinsurance, and other [cost-sharing](/usc/42/18022.md?p=c-3-A) obligations for such other members shall not be treated as payments for medical assistance for [eligible individuals](/usc/42/239.md?p=a-6).
  - (2) The fact that an individual is enrolled in a [group health plan](#e-1) under this section shall not change the individual’s eligibility for benefits under the [State](/usc/42/1396b.md?p=w-7-D) plan, except insofar as [section 1396a(a)(25) of this title](/usc/42/1396a.md?p=a-25) provides that payment for such benefits shall first be made by such plan.
- (d) **Repealed. Pub. L. 105–33, title IV, § 4741(b)(2), Aug. 5, 1997, 111 Stat. 523—**
- (e) **Definitions—** In this section:
  - (1) The term “group health plan” has the meaning given such term in section 5000(b)(1) of the Internal Revenue Code of 1986, and [includes](/usc/42/1301.md?p=b) the provision of [continuation coverage](/usc/42/300bb–2.md) by such a plan pursuant to title XXII of the Public Health Service Act [[42 U.S.C. 300bb–1](/usc/42/300bb–1.md) et seq.], section 4980B of the Internal Revenue Code of 1986, or title VI[^1] of the [Employee](/usc/42/1320a–7h.md?p=e-7) Retirement [Income](/usc/42/292s.md?p=c-4) Security Act of 1974.
  - (2) The term “cost-effective” has the meaning given that term in [section 1397ee(c)(3)(A) of this title](/usc/42/1397ee.md?p=c-3-A).

# §1396e–1. Premium assistance

- (a) **In general—** A [State](/usc/42/1396b.md?p=w-7-D) may elect to offer a [premium assistance subsidy](#c) (as defined in [subsection (c)](#c)) for qualified employer-sponsored coverage (as defined in [subsection (b)](#b)) to all individuals who are entitled to medical assistance under this subchapter (and, in the case of an individual under age 19, to the [parent](/usc/42/1396a.md?p=k-3) of such an individual) who have access to such coverage if the [State](/usc/42/1396b.md?p=w-7-D) meets the requirements of this section and the offering of such a subsidy is [cost-effective](/usc/42/1396e.md?p=e-2), as defined for purposes of [section 1397ee(c)(3)(A) of this title](/usc/42/1397ee.md?p=c-3-A).
- (b) **Qualified employer-sponsored coverage—**
  - (1) **In general—** Subject to [paragraph (2)](#b-2)),[^1] in this paragraph, the term “qualified employer-sponsored coverage” means a [group health plan](/usc/42/1320d–9.md?p=b-2) or [health insurance coverage](/usc/42/1320d–9.md?p=b-2) offered through an employer—
    - (A) that qualifies as creditable coverage as a [group health plan](/usc/42/1320d–9.md?p=b-2) under section 2701(c)(1) of the Public Health Service Act;[^2]
    - (B) for which the employer contribution toward any premium for such coverage is at least 40 percent; and
    - (C) that is offered to all individuals in a manner that would be considered a nondiscriminatory eligibility classification for purposes of paragraph (3)(A)(ii) of section 105(h) of the Internal Revenue Code of 1986 (but determined without regard to clause (i) of subparagraph (B) of such paragraph).
  - (2) **Exception—** Such term does not include coverage consisting of—
    - (A) benefits provided under a health flexible spending arrangement (as defined in section 106(c)(2) of the Internal Revenue Code of 1986); or
    - (B) a high deductible [health plan](/usc/42/300jj.md?p=6) (as defined in section 223(c)(2) of such Code), without regard to whether the plan is purchased in conjunction with a health savings account (as defined under section 223(d) of such Code).
  - (3) **Treatment as third party liability—** The [State](/usc/42/1396b.md?p=w-7-D) shall treat the coverage provided under qualified employer-sponsored coverage as a third party liability under [section 1396a(a)(25) of this title](/usc/42/1396a.md?p=a-25).
- (c) **Premium assistance subsidy—** In this section, the term “premium assistance subsidy” means the amount of the [employee](/usc/42/1320a–7h.md?p=e-7) contribution for enrollment in the qualified employer-sponsored coverage by the individual or by the individual’s [family](/usc/42/290ff–4.md?p=d-2). Premium assistance subsidies under this section shall be considered, for purposes of [section 1396b(a) of this title](/usc/42/1396b.md?p=a), to be a payment for medical assistance.
- (d) **Voluntary participation—**
  - (1) **Employers—** Participation by an employer in a [premium assistance subsidy](#c) offered by a [State](/usc/42/1396b.md?p=w-7-D) under this section shall be voluntary. An employer may notify a [State](/usc/42/1396b.md?p=w-7-D) that it elects to opt-out of being directly paid a [premium assistance subsidy](#c) on behalf of an [employee](/usc/42/1320a–7h.md?p=e-7).
  - (2) **Beneficiaries—** No subsidy shall be provided to an individual under this section unless the individual (or the individual’s [parent](/usc/42/1396a.md?p=k-3)) voluntarily elects to receive such a subsidy. A [State](/usc/42/1396b.md?p=w-7-D) may not require such an election as a condition of receipt of medical assistance. A [State](/usc/42/1396b.md?p=w-7-D) may not require, as a condition of an individual (or the individual’s [parent](/usc/42/1396a.md?p=k-3)) being or remaining eligible for medical assistance under this subchapter, that the individual (or the individual’s [parent](/usc/42/1396a.md?p=k-3)) apply for enrollment in qualified employer-sponsored coverage under this section.
  - (3) **Opt-out permitted for any month—** A [State](/usc/42/1396b.md?p=w-7-D) shall establish a process for permitting an individual (or the [parent](/usc/42/1396a.md?p=k-3) of an individual) receiving a [premium assistance subsidy](#c) to disenroll the individual from the qualified employer-sponsored coverage.
- (e) **Requirement to pay premiums and cost-sharing and provide supplemental coverage—** In the case of the participation of an individual (or the individual’s [parent](/usc/42/1396a.md?p=k-3)) in a [premium assistance subsidy](#c) under this section for qualified employer-sponsored coverage, the [State](/usc/42/1396b.md?p=w-7-D) shall provide for payment of all enrollee premiums for enrollment in such coverage and all deductibles, coinsurance, and other [cost-sharing](/usc/42/18022.md?p=c-3-A) obligations for items and services otherwise covered under the [State](/usc/42/1396b.md?p=w-7-D) plan under this subchapter (exceeding the amount otherwise permitted under [section 1396o](/usc/42/1396o.md) of this title or, if applicable, [section 1396o–1](/usc/42/1396o–1.md) of this title). The fact that an individual (or a [parent](/usc/42/1396a.md?p=k-3)) elects to enroll in qualified employer-sponsored coverage under this section shall not change the individual’s (or [parent](/usc/42/1396a.md?p=k-3)’s) eligibility for medical assistance under the [State](/usc/42/1396b.md?p=w-7-D) plan, except insofar as [section 1396a(a)(25) of this title](/usc/42/1396a.md?p=a-25) provides that payments for such assistance shall first be made under such coverage.

# §1396f. Observance of religious beliefs


Nothing in this subchapter shall be construed to require any [State](/usc/42/1396b.md?p=w-7-D) which has a plan approved under this subchapter to compel any [person](/usc/42/1301.md?p=a-3) to undergo any medical screening, examination, diagnosis, or [treatment](/usc/42/11851.md?p=11) or to accept any other health care or services provided under such plan for any purpose (other than for the purpose of discovering and preventing the spread of infection or contagious disease or for the purpose of protecting environmental health), if such [person](/usc/42/1301.md?p=a-3) objects (or, in case such [person](/usc/42/1301.md?p=a-3) is a [child](/usc/42/416.md?p=e), his [parent](/usc/42/1396a.md?p=k-3) or guardian objects) thereto on religious grounds.


# §1396g. State programs for licensing of administrators of nursing homes

- (a) **Nature of State program—** For purposes of [section 1396a(a)(29) of this title](/usc/42/1396a.md?p=a-29), a “[State](/usc/42/1396b.md?p=w-7-D) [program](/usc/42/274l–1.md?p=4) for the licensing of [administrators](/usc/42/4005.md?p=1) of [nursing homes](#e-1)” is a [program](/usc/42/274l–1.md?p=4) which provides that no [nursing home](#e-1) within the [State](/usc/42/1396b.md?p=w-7-D) may operate except under the supervision of an [administrator](/usc/42/4005.md?p=1) licensed in the manner provided in this section.
- (b) **Licensing by State agency or board representative of concerned professions and institutions—** Licensing of [nursing home administrators](#e-2) shall be carried out by the [agency](/usc/42/1397n–12.md?p=1) of the [State](/usc/42/1396b.md?p=w-7-D) responsible for licensing under the healing arts licensing act of the [State](/usc/42/1396b.md?p=w-7-D), or, in the absence of such act or such an [agency](/usc/42/1397n–12.md?p=1), a [board](/usc/42/10261.md?p=2) [representative](/usc/42/3058f.md?p=5) of the professions and institutions concerned with care of chronically ill and infirm aged patients and established to carry out the purposes of this section.
- (c) **Functions and duties of State agency or board—** It shall be the function and duty of such [agency](/usc/42/1397n–12.md?p=1) or [board](/usc/42/10261.md?p=2) to—
  - (1) develop, impose, and enforce [standards](/usc/42/1320d.md?p=7) which must be met by individuals in order to receive a license as a [nursing home administrator](#e-2), which [standards](/usc/42/1320d.md?p=7) shall be designed to insure that [nursing home administrators](#e-2) will be individuals who are of good character and are otherwise suitable, and who, by [training](/usc/42/285e–2.md?p=b-2) or experience in the field of institutional [administration](/usc/42/1301.md?p=a-10), are qualified to serve as [nursing home administrators](#e-2);
  - (2) develop and apply appropriate techniques, [including](/usc/42/1301.md?p=b) examinations and investigations, for determining whether an individual meets such [standards](/usc/42/1320d.md?p=7);
  - (3) issue licenses to individuals determined, after the application of such techniques, to meet such [standards](/usc/42/1320d.md?p=7), and revoke or suspend licenses previously issued by the [board](/usc/42/10261.md?p=2) in any case where the individual holding any such license is determined substantially to have failed to conform to the requirements of such [standards](/usc/42/1320d.md?p=7);
  - (4) establish and carry out procedures designed to insure that individuals licensed as [nursing home administrators](#e-2) will, during any period that they serve as such, comply with the requirements of such [standards](/usc/42/1320d.md?p=7);
  - (5) receive, investigate, and take appropriate action with respect to, any charge or complaint filed with the [board](/usc/42/10261.md?p=2) to the effect that any individual licensed as a [nursing home administrator](#e-2) has failed to comply with the requirements of such [standards](/usc/42/1320d.md?p=7); and
  - (6) conduct a continuing study and investigation of [nursing homes](#e-1) and [administrators](/usc/42/4005.md?p=1) of [nursing homes](#e-1) within the [State](/usc/42/1396b.md?p=w-7-D) with a view to the improvement of the [standards](/usc/42/1320d.md?p=7) imposed for the licensing of such [administrators](/usc/42/4005.md?p=1) and of procedures and methods for the enforcement of such [standards](/usc/42/1320d.md?p=7) with respect to [administrators](/usc/42/4005.md?p=1) of [nursing homes](#e-1) who have been licensed as such.
- (d) **Waiver of standards other than good character or suitability standards—** No [State](/usc/42/1396b.md?p=w-7-D) shall be considered to have failed to comply with the provisions of [section 1396a(a)(29) of this title](/usc/42/1396a.md?p=a-29) because the [agency](/usc/42/1397n–12.md?p=1) or [board](/usc/42/10261.md?p=2) of such [State](/usc/42/1396b.md?p=w-7-D) (established pursuant to [subsection (b)](#b)) shall have granted any waiver, with respect to any individual who, during all of the three calendar years immediately preceding the calendar year in which the requirements prescribed in [section 1396a(a)(29) of this title](/usc/42/1396a.md?p=a-29) are first met by the [State](/usc/42/1396b.md?p=w-7-D), has served as a [nursing home administrator](#e-2), of any of the [standards](/usc/42/1320d.md?p=7) developed, imposed, and enforced by such [agency](/usc/42/1397n–12.md?p=1) or [board](/usc/42/10261.md?p=2) pursuant to [subsection (c)](#c).
- (e) **“Nursing home” and “nursing home administrator” defined—** As used in this section, the term—
  - (1) “nursing home” means any institution or [facility](/usc/42/11049.md?p=4) defined as such for licensing purposes under [State](/usc/42/1396b.md?p=w-7-D) law, or, if [State](/usc/42/1396b.md?p=w-7-D) law does not employ the term nursing home, the equivalent term or terms as determined by the [Secretary](/usc/42/1301.md?p=a-6), but does not include a religious nonmedical health care institution (as defined in [section 1395x(ss)(1) of this title](/usc/42/1395x.md?p=ss-1)).[^1]
  - (2) “nursing home administrator” means any individual who is charged with the general [administration](/usc/42/1301.md?p=a-10) of a [nursing home](#e-1) whether or not such individual has an ownership interest in such home and whether or not his functions and duties are shared with one or more other individuals.

# §1396g–1. Required laws relating to medical child support

- (a) **In general—** The laws relating to medical [child](/usc/42/416.md?p=e) support, which a [State](/usc/42/1396b.md?p=w-7-D) is required to have in effect under [section 1396a(a)(60) of this title](/usc/42/1396a.md?p=a-60), are as follows:
  - (1) A law that prohibits an [insurer](#b) from denying enrollment of a [child](/usc/42/416.md?p=e) under the health coverage of the [child](/usc/42/416.md?p=e)’s [parent](/usc/42/1396a.md?p=k-3) on the ground that—
    - (A) the [child](/usc/42/416.md?p=e) was born out of wedlock,
    - (B) the [child](/usc/42/416.md?p=e) is not claimed as a dependent on the [parent](/usc/42/1396a.md?p=k-3)’s Federal [income](/usc/42/292s.md?p=c-4) tax return, or
    - (C) the [child](/usc/42/416.md?p=e) does not reside with the [parent](/usc/42/1396a.md?p=k-3) or in the [insurer](#b)’s service area.
  - (2) In any case in which a [parent](/usc/42/1396a.md?p=k-3) is required by a court or administrative order to provide health coverage for a [child](/usc/42/416.md?p=e) and the [parent](/usc/42/1396a.md?p=k-3) is eligible for [family](/usc/42/290ff–4.md?p=d-2) health coverage through an [insurer](#b), a law that requires such [insurer](#b)—
    - (A) to permit such [parent](/usc/42/1396a.md?p=k-3) to enroll under such [family](/usc/42/290ff–4.md?p=d-2) coverage any such [child](/usc/42/416.md?p=e) who is otherwise eligible for such coverage (without regard to any enrollment season restrictions);
    - (B) if such a [parent](/usc/42/1396a.md?p=k-3) is enrolled but fails to make application to obtain coverage of such [child](/usc/42/416.md?p=e), to enroll such [child](/usc/42/416.md?p=e) under such [family](/usc/42/290ff–4.md?p=d-2) coverage upon application by the [child](/usc/42/416.md?p=e)’s other [parent](/usc/42/1396a.md?p=k-3) or by the [State agency](/usc/42/1320a–7a.md?p=i-1) administering the [program](/usc/42/274l–1.md?p=4) under this subchapter or part D of subchapter IV; and
    - (C) not to disenroll (or eliminate coverage of) such a [child](/usc/42/416.md?p=e) unless the [insurer](#b) is provided satisfactory written evidence that—
      - (i) such court or administrative order is no longer in effect, or
      - (ii) the [child](/usc/42/416.md?p=e) is or will be enrolled in comparable health coverage through another [insurer](#b) which will take effect not later than the effective date of such disenrollment.
  - (3) In any case in which a [parent](/usc/42/1396a.md?p=k-3) is required by a court or administrative order to provide health coverage for a [child](/usc/42/416.md?p=e) and the [parent](/usc/42/1396a.md?p=k-3) is eligible for [family](/usc/42/290ff–4.md?p=d-2) health coverage through an employer doing business in the [State](/usc/42/1396b.md?p=w-7-D), a law that requires such employer—
    - (A) to permit such [parent](/usc/42/1396a.md?p=k-3) to enroll under such [family](/usc/42/290ff–4.md?p=d-2) coverage any such [child](/usc/42/416.md?p=e) who is otherwise eligible for such coverage (without regard to any enrollment season restrictions);
    - (B) if such a [parent](/usc/42/1396a.md?p=k-3) is enrolled but fails to make application to obtain coverage of such [child](/usc/42/416.md?p=e), to enroll such [child](/usc/42/416.md?p=e) under such [family](/usc/42/290ff–4.md?p=d-2) coverage upon application by the [child](/usc/42/416.md?p=e)’s other [parent](/usc/42/1396a.md?p=k-3) or by the [State agency](/usc/42/1320a–7a.md?p=i-1) administering the [program](/usc/42/274l–1.md?p=4) under this subchapter or part D of subchapter IV; and
    - (C) not to disenroll (or eliminate coverage of) any such [child](/usc/42/416.md?p=e) unless—
      - (i) the employer is provided satisfactory written evidence that—
        - (I) such court or administrative order is no longer in effect, or
        - (II) the [child](/usc/42/416.md?p=e) is or will be enrolled in comparable health coverage which will take effect not later than the effective date of such disenrollment, or
      - (ii) the employer has eliminated [family](/usc/42/290ff–4.md?p=d-2) health coverage for all of its [employees](/usc/42/1320a–7h.md?p=e-7); and
    - (D) to withhold from such [employee](/usc/42/1320a–7h.md?p=e-7)’s compensation the [employee](/usc/42/1320a–7h.md?p=e-7)’s share (if any) of premiums for health coverage (except that the amount so withheld may not exceed the maximum amount permitted to be withheld under [section 1673(b) of title 15](/usc/15/1673.md?p=b)), and to pay such share of premiums to the [insurer](#b), except that the [Secretary](/usc/42/1301.md?p=a-6) may provide by regulation for appropriate circumstances under which an employer may withhold less than such [employee](/usc/42/1320a–7h.md?p=e-7)’s share of such premiums.
  - (4) A law that prohibits an [insurer](#b) from imposing requirements on a [State agency](/usc/42/1320a–7a.md?p=i-1), which has been assigned the rights of an individual eligible for medical assistance under this subchapter and covered for health benefits from the [insurer](#b), that are different from requirements applicable to an agent or assignee of any other individual so covered.
  - (5) A law that requires an [insurer](#b), in any case in which a [child](/usc/42/416.md?p=e) has health coverage through the [insurer](#b) of a noncustodial [parent](/usc/42/1396a.md?p=k-3)—
    - (A) to provide such information to the custodial [parent](/usc/42/1396a.md?p=k-3) as may be necessary for the [child](/usc/42/416.md?p=e) to obtain benefits through such coverage;
    - (B) to permit the custodial [parent](/usc/42/1396a.md?p=k-3) (or provider, with the custodial [parent](/usc/42/1396a.md?p=k-3)’s approval) to submit [claims](/usc/42/1320a–7a.md?p=i-2) for covered services without the approval of the noncustodial [parent](/usc/42/1396a.md?p=k-3); and
    - (C) to make payment on [claims](/usc/42/1320a–7a.md?p=i-2) submitted in accordance with [subparagraph (B)](#a-5-B) directly to such custodial [parent](/usc/42/1396a.md?p=k-3), the provider, or the [State agency](/usc/42/1320a–7a.md?p=i-1).
  - (6) A law that permits the [State agency](/usc/42/1320a–7a.md?p=i-1) under this subchapter to garnish the wages, salary, or other employment [income](/usc/42/292s.md?p=c-4) of, and requires withholding amounts from [State](/usc/42/1396b.md?p=w-7-D) tax refunds to, any [person](/usc/42/1301.md?p=a-3) who—
    - (A) is required by court or administrative order to provide coverage of the costs of health services to a [child](/usc/42/416.md?p=e) who is eligible for medical assistance under this subchapter,
    - (B) has received payment from a third party for the costs of such services to such [child](/usc/42/416.md?p=e), but
    - (C) has not used such payments to reimburse, as appropriate, either the other [parent](/usc/42/1396a.md?p=k-3) or guardian of such [child](/usc/42/416.md?p=e) or the provider of such services,

    to the extent necessary to reimburse the [State agency](/usc/42/1320a–7a.md?p=i-1) for expenditures for such costs under its plan under this subchapter, but any [claims](/usc/42/1320a–7a.md?p=i-2) for current or past-due [child](/usc/42/416.md?p=e) support shall take priority over any such [claims](/usc/42/1320a–7a.md?p=i-2) for the costs of such services.

- (b) **“Insurer” defined—** For purposes of this section, the term “insurer” [includes](/usc/42/1301.md?p=b) a [group health plan](/usc/42/1320d–9.md?p=b-2), as defined in [section 1167(1) of title 29](/usc/29/1167.md?p=1), a health maintenance organization, and an entity offering a service benefit plan.

# §1396h. State false claims act requirements for increased State share of recoveries

- (a) **In general—** Notwithstanding [section 1396d(b) of this title](/usc/42/1396d.md?p=b), if a [State](/usc/42/1396b.md?p=w-7-D) has in effect a law relating to false or fraudulent [claims](/usc/42/1320a–7a.md?p=i-2) that meets the requirements of [subsection (b)](#b), the Federal medical assistance percentage with respect to any amounts recovered under a [State](/usc/42/1396b.md?p=w-7-D) action brought under such law, shall be decreased by 10 percentage points.
- (b) **Requirements—** For purposes of [subsection (a)](#a), the requirements of this subsection are that the Inspector General of the Department of Health and Human Services, in consultation with the [Attorney General](/usc/42/14902.md?p=6), determines that the [State](/usc/42/1396b.md?p=w-7-D) has in effect a law that meets the following requirements:
  - (1) The law establishes liability to the [State](/usc/42/1396b.md?p=w-7-D) for false or fraudulent [claims](/usc/42/1320a–7a.md?p=i-2) described in [section 3729 of title 31](/usc/31/3729.md) with respect to any expenditure described in [section 1396b(a) of this title](/usc/42/1396b.md?p=a).
  - (2) The law contains provisions that are at least as effective in rewarding and facilitating qui tam actions for false or fraudulent [claims](/usc/42/1320a–7a.md?p=i-2) as those described in [sections 3730 through 3732](/usc/31/3730..3732.md) of title 31.
  - (3) The law contains a requirement for filing an action under seal for 60 days with review by the [State](/usc/42/1396b.md?p=w-7-D) [Attorney General](/usc/42/14902.md?p=6).
  - (4) The law contains a civil penalty that is not less than the amount of the civil penalty authorized under [section 3729 of title 31](/usc/31/3729.md).
- (c) **Deemed compliance—** A [State](/usc/42/1396b.md?p=w-7-D) that, as of January 1, 2007, has a law in effect that meets the requirements of [subsection (b)](#b) shall be deemed to be in compliance with such requirements for so long as the law continues to meet such requirements.
- (d) **No preclusion of broader laws—** Nothing in this section shall be construed as prohibiting a [State](/usc/42/1396b.md?p=w-7-D) that has in effect a law that establishes liability to the [State](/usc/42/1396b.md?p=w-7-D) for false or fraudulent [claims](/usc/42/1320a–7a.md?p=i-2) described in [section 3729 of title 31](/usc/31/3729.md), with respect to [programs](/usc/42/274l–1.md?p=4) in addition to the [State](/usc/42/1396b.md?p=w-7-D) [program](/usc/42/274l–1.md?p=4) under this subchapter, or with respect to expenditures in addition to expenditures described in [section 1396b(a) of this title](/usc/42/1396b.md?p=a), from being considered to be in compliance with the requirements of [subsection (a)](#a) so long as the law meets such requirements.

# §1396i. Certification and approval of rural health clinics and intermediate care facilities for mentally retarded

- (a)
  - (1) Whenever the [Secretary](/usc/42/1301.md?p=a-6) certifies a [facility](/usc/42/11049.md?p=4) in a [State](/usc/42/1396b.md?p=w-7-D) to be qualified as a [rural health clinic](/usc/42/254c.md?p=b-2) under subchapter XVIII, such [facility](/usc/42/11049.md?p=4) shall be deemed to meet the [standards](/usc/42/1320d.md?p=7) for certification as a [rural health clinic](/usc/42/254c.md?p=b-2) for purposes of providing [rural health clinic services](/usc/42/1396d.md?p=l-1) under this subchapter.
  - (2) The [Secretary](/usc/42/1301.md?p=a-6) shall notify the [State agency](/usc/42/1320a–7a.md?p=i-1) administering the medical assistance plan of his approval or disapproval of any [facility](/usc/42/11049.md?p=4) in that [State](/usc/42/1396b.md?p=w-7-D) which has applied for certification by him as a qualified [rural health clinic](/usc/42/254c.md?p=b-2).
- (b)
  - (1) The [Secretary](/usc/42/1301.md?p=a-6) may cancel approval of any [intermediate care facility for the mentally retarded](/usc/42/1396d.md?p=d) at any time if he finds on the basis of a determination made by him as provided in [section 1396a(a)(33)(B) of this title](/usc/42/1396a.md?p=a-33-B) that a [facility](/usc/42/11049.md?p=4) fails to meet the requirements contained in [section 1396a(a)(31) of this title](/usc/42/1396a.md?p=a-31) or [section 1396d(d) of this title](/usc/42/1396d.md?p=d), or if he finds grounds for termination of his [agreement](/usc/42/1320b–8.md?p=a-3-A) with the [facility](/usc/42/11049.md?p=4) pursuant to [section 1395cc(b) of this title](/usc/42/1395cc.md?p=b). In that event the [Secretary](/usc/42/1301.md?p=a-6) shall notify the [State agency](/usc/42/1320a–7a.md?p=i-1) and the [intermediate care facility for the mentally retarded](/usc/42/1396d.md?p=d) that approval of eligibility of the [facility](/usc/42/11049.md?p=4) to participate in the [programs](/usc/42/274l–1.md?p=4) established by this subchapter and subchapter XVIII shall be terminated at a time specified by the [Secretary](/usc/42/1301.md?p=a-6). The approval of eligibility of any such [facility](/usc/42/11049.md?p=4) to participate in such [programs](/usc/42/274l–1.md?p=4) may not be reinstated unless the [Secretary](/usc/42/1301.md?p=a-6) finds that the reason for termination has been removed and there is reasonable assurance that it will not recur.
  - (2) Any [intermediate care facility for the mentally retarded](/usc/42/1396d.md?p=d) which is dissatisfied with a determination by the [Secretary](/usc/42/1301.md?p=a-6) that it no longer qualifies as a[^1] [intermediate care facility for the mentally retarded](/usc/42/1396d.md?p=d) for purposes of this subchapter, shall be entitled to a hearing by the [Secretary](/usc/42/1301.md?p=a-6) to the same extent as is provided in [section 405(b) of this title](/usc/42/405.md?p=b) and to judicial review of the [Secretary](/usc/42/1301.md?p=a-6)’s final decision after such hearing as is provided in [section 405(g) of this title](/usc/42/405.md?p=g), except that, in so applying such sections and in applying [section 405(l)](/usc/42/405.md?p=l) of this title thereto, any reference therein to the [Commissioner](/usc/42/12302.md?p=1) of [Social](/usc/42/1397j.md?p=20) Security or the [Social](/usc/42/1397j.md?p=20) Security [Administration](/usc/42/1301.md?p=a-10) shall be considered a reference to the [Secretary](/usc/42/1301.md?p=a-6) or the Department of Health and Human Services, respectively. Any [agreement](/usc/42/1320b–8.md?p=a-3-A) between such [facility](/usc/42/11049.md?p=4) and the [State agency](/usc/42/1320a–7a.md?p=i-1) shall remain in effect until the period for filing a request for a hearing has expired or, if a request has been filed, until a decision has been made by the [Secretary](/usc/42/1301.md?p=a-6); except that the [agreement](/usc/42/1320b–8.md?p=a-3-A) shall not be extended if the [Secretary](/usc/42/1301.md?p=a-6) makes a written determination, specifying the reasons therefor, that the continuation of provider status constitutes an immediate and serious threat to the health and safety of patients, and the [Secretary](/usc/42/1301.md?p=a-6) certifies that the [facility](/usc/42/11049.md?p=4) has been notified of its deficiencies and has failed to correct them.

# §1396j. Indian Health Service facilities

- (a) **Eligibility for reimbursement for medical assistance—** A [facility](/usc/42/11049.md?p=4) of the [Indian](/usc/42/6862.md?p=6) Health Service ([including](/usc/42/1301.md?p=b) a [hospital](/usc/42/1395dd.md?p=e-5), [nursing facility](/usc/42/1396r.md?p=a), or any other type of [facility](/usc/42/11049.md?p=4) which provides services of a type otherwise covered under the [State](/usc/42/1396b.md?p=w-7-D) plan), whether operated by such Service or by an [Indian tribe](/usc/42/1397j.md?p=12-A) or [tribal organization](/usc/42/629a.md?p=a-6) (as those terms are defined in [section 1603 of title 25](/usc/25/1603.md)), shall be eligible for reimbursement for medical assistance provided under a [State](/usc/42/1396b.md?p=w-7-D) plan if and for so long as it meets all of the conditions and requirements which are applicable generally to such [facilities](/usc/42/11049.md?p=4) under this subchapter.
- (b) **Facilities deemed to meet requirements upon submission of acceptable plan for achieving compliance—** Notwithstanding [subsection (a)](#a), a [facility](/usc/42/11049.md?p=4) of the [Indian](/usc/42/6862.md?p=6) Health Service ([including](/usc/42/1301.md?p=b) a [hospital](/usc/42/1395dd.md?p=e-5), [nursing facility](/usc/42/1396r.md?p=a), or any other type of [facility](/usc/42/11049.md?p=4) which provides services of a type otherwise covered under the [State](/usc/42/1396b.md?p=w-7-D) plan) which does not meet all of the conditions and requirements of this subchapter which are applicable generally to such [facility](/usc/42/11049.md?p=4), but which submits to the [Secretary](/usc/42/1301.md?p=a-6) within six months after September 30, 1976, an acceptable plan for achieving compliance with such conditions and requirements, shall be deemed to meet such conditions and requirements (and to be eligible for reimbursement under this subchapter), without regard to the extent of its actual compliance with such conditions and requirements, during the first twelve months after the month in which such plan is submitted.
- (c) **Agreement to reimburse State agency for providing care and services—** The [Secretary](/usc/42/1301.md?p=a-6) is authorized to enter into [agreements](/usc/42/1320b–8.md?p=a-3-A) with the [State agency](/usc/42/1320a–7a.md?p=i-1) for the purpose of reimbursing such [agency](/usc/42/1397n–12.md?p=1) for health care and services provided in [Indian](/usc/42/6862.md?p=6) Health Service [facilities](/usc/42/11049.md?p=4) to [Indians](/usc/42/6862.md?p=6) who are eligible for medical assistance under the [State](/usc/42/1396b.md?p=w-7-D) plan.
- (d) **Cross reference—** For provisions relating to the authority of certain [Indian tribes](/usc/42/1397j.md?p=12-A), [tribal organizations](/usc/42/629a.md?p=a-6), and Alaska Native health organizations to elect to directly bill for, and receive payment for, health care services provided by a [hospital](/usc/42/1395dd.md?p=e-5) or clinic of such tribes or organizations and for which payment may be made under this subchapter, see [section 1645 of title 25](/usc/25/1645.md).[^1]

# §1396k. Assignment, enforcement, and collection of rights of payments for medical care; establishment of procedures pursuant to State plan; amounts retained by State

- (a) For the purpose of assisting in the collection of medical support payments and other payments for [medical care](/usc/42/1301.md?p=a-7) owed to [recipients](/usc/42/2996a.md?p=6) of medical assistance under the [State](/usc/42/1396b.md?p=w-7-D) plan approved under this subchapter, a [State](/usc/42/1396b.md?p=w-7-D) plan for medical assistance shall—
  - (1) provide that, as a condition of eligibility for medical assistance under the [State](/usc/42/1396b.md?p=w-7-D) plan to an individual who has the legal capacity to execute an assignment for himself, the individual is required—
    - (A) to assign the [State](/usc/42/1396b.md?p=w-7-D) any rights, of the individual or of any other [person](/usc/42/1301.md?p=a-3) who is eligible for medical assistance under this subchapter and on whose behalf the individual has the legal authority to execute an assignment of such rights, to support (specified as support for the purpose of [medical care](/usc/42/1301.md?p=a-7) by a court or administrative order) and to payment for [medical care](/usc/42/1301.md?p=a-7) from any third party;
    - (B) to cooperate with the [State](/usc/42/1396b.md?p=w-7-D) (i) in establishing the paternity of such [person](/usc/42/1301.md?p=a-3) (referred to in [subparagraph (A)](#a-1-A)) if the [person](/usc/42/1301.md?p=a-3) is a [child](/usc/42/416.md?p=e) born out of wedlock, and (ii) in obtaining support and payments (described in [subparagraph (A)](#a-1-A)) for himself and for such [person](/usc/42/1301.md?p=a-3), unless (in either case) the individual is described in [section 1396a(l)(1)(A)](/usc/42/1396a.md?p=l-1-A) of this title or the individual is found to have good [cause](/usc/42/9908.md?p=c-2) for refusing to cooperate as determined by the [State agency](/usc/42/1320a–7a.md?p=i-1) in accordance with [standards](/usc/42/1320d.md?p=7) prescribed by the [Secretary](/usc/42/1301.md?p=a-6), which [standards](/usc/42/1320d.md?p=7) shall take into consideration the best interests of the individuals involved; and
    - (C) to cooperate with the [State](/usc/42/1396b.md?p=w-7-D) in identifying, and providing information to assist the [State](/usc/42/1396b.md?p=w-7-D) in pursuing, any third party who may be liable to pay for care and services available under the plan, unless such individual has good [cause](/usc/42/9908.md?p=c-2) for refusing to cooperate as determined by the [State agency](/usc/42/1320a–7a.md?p=i-1) in accordance with [standards](/usc/42/1320d.md?p=7) prescribed by the [Secretary](/usc/42/1301.md?p=a-6), which [standards](/usc/42/1320d.md?p=7) shall take into consideration the best interests of the individuals involved; and
  - (2) provide for entering into cooperative arrangements ([including](/usc/42/1301.md?p=b) financial arrangements), with any appropriate [agency](/usc/42/1397n–12.md?p=1) of any [State](/usc/42/1396b.md?p=w-7-D) ([including](/usc/42/1301.md?p=b), with respect to the enforcement and collection of rights of payment for [medical care](/usc/42/1301.md?p=a-7) by or through a [parent](/usc/42/1396a.md?p=k-3), with a [State](/usc/42/1396b.md?p=w-7-D)’s [agency](/usc/42/1397n–12.md?p=1) established or designated under [section 654(3) of this title](/usc/42/654.md?p=3)) and with appropriate courts and [law enforcement](/usc/42/1397j.md?p=13) officials, to assist the [agency](/usc/42/1397n–12.md?p=1) or [agencies](/usc/42/1397n–12.md?p=1) administering the [State](/usc/42/1396b.md?p=w-7-D) plan with respect to (A) the enforcement and collection of rights to support or payment assigned under this section and (B) any other matters of common concern.
- (b) Such part of any amount collected by the [State](/usc/42/1396b.md?p=w-7-D) under an assignment made under the provisions of this section shall be retained by the [State](/usc/42/1396b.md?p=w-7-D) as is necessary to reimburse it for medical assistance payments made on behalf of an individual with respect to whom such assignment was executed (with appropriate reimbursement of the Federal Government to the extent of its participation in the financing of such medical assistance), and the remainder of such amount collected shall be paid to such individual.

# §1396l. Hospital providers of nursing facility services

- (a) Notwithstanding any other provision of this subchapter, payment may be made, in accordance with this section, under a [State](/usc/42/1396b.md?p=w-7-D) plan approved under this subchapter for [nursing facility services](/usc/42/1396d.md?p=f) furnished by a [hospital](/usc/42/1395dd.md?p=e-5) which has in effect an [agreement](/usc/42/1320b–8.md?p=a-3-A) under [section 1395tt of this title](/usc/42/1395tt.md) and which, with respect to the provision of such services, meets the requirements of subsections (b) through (d) of [section 1396r of this title](/usc/42/1396r.md).
- (b)
  - (1) Except as provided in [paragraph (3)](#b-3), payment to any such [hospital](/usc/42/1395dd.md?p=e-5), for any [nursing facility services](/usc/42/1396d.md?p=f) furnished pursuant to [subsection (a)](#a), shall be at a rate equal to the average rate per patient-day paid for routine services during the previous calendar year under the [State](/usc/42/1396b.md?p=w-7-D) plan to [nursing facilities](/usc/42/1396r.md?p=a), respectively,[^1] located in the [State](/usc/42/1396b.md?p=w-7-D) in which the [hospital](/usc/42/1395dd.md?p=e-5) is located. The reasonable cost of ancillary services shall be determined in the same manner as the reasonable cost of ancillary services provided for inpatient [hospital](/usc/42/1395dd.md?p=e-5) services.
  - (2) With respect to any period for which a [hospital](/usc/42/1395dd.md?p=e-5) has an [agreement](/usc/42/1320b–8.md?p=a-3-A) under [section 1395tt of this title](/usc/42/1395tt.md), in order to allocate routine costs between [hospital](/usc/42/1395dd.md?p=e-5) and [long-term care](/usc/42/1397j.md?p=14-A) services, the total reimbursement for routine services due from all classes of [long-term care](/usc/42/1397j.md?p=14-A) patients ([including](/usc/42/1301.md?p=b) subchapter XVIII, this subchapter, and private pay patients) shall be subtracted from the [hospital](/usc/42/1395dd.md?p=e-5) total routine costs before calculations are made to determine reimbursement for routine [hospital](/usc/42/1395dd.md?p=e-5) services under the [State](/usc/42/1396b.md?p=w-7-D) plan.
  - (3) Payment to all such [hospitals](/usc/42/1395dd.md?p=e-5), for any [nursing facility services](/usc/42/1396d.md?p=f) furnished pursuant to [subsection (a)](#a), may be made at a payment rate established by the [State](/usc/42/1396b.md?p=w-7-D) in accordance with the requirements of [section 1396a(a)(13)(A) of this title](/usc/42/1396a.md?p=a-13-A).

# §1396m. Withholding of Federal share of payments for certain medicare providers

- (a) **Adjustment of Federal matching payments—** The [Secretary](/usc/42/1301.md?p=a-6) may adjust, in accordance with this section, the Federal matching payment to a [State](/usc/42/1396b.md?p=w-7-D) with respect to expenditures for medical assistance for care or services furnished in any quarter by—
  - (1) an institution (A) which has or previously had in effect an [agreement](/usc/42/1320b–8.md?p=a-3-A) with the [Secretary](/usc/42/1301.md?p=a-6) under [section 1395cc of this title](/usc/42/1395cc.md); and (B)(i) from which the [Secretary](/usc/42/1301.md?p=a-6) has been unable to recover overpayments made under subchapter XVIII, or (ii) from which the [Secretary](/usc/42/1301.md?p=a-6) has been unable to collect the information necessary to enable him to determine the amount (if any) of the overpayments made to such institution under subchapter XVIII; and
  - (2) any [person](/usc/42/1301.md?p=a-3) (A) who (i) has previously accepted payment on the basis of an assignment under [section 1395u(b)(3)(B)(ii) of this title](/usc/42/1395u.md?p=b-3-B-ii), and (ii) during the annual period immediately preceding such quarter submitted no [claims](/usc/42/1320a–7a.md?p=i-2) for payment under subchapter XVIII, or submitted [claims](/usc/42/1320a–7a.md?p=i-2) for payment under subchapter XVIII which aggregated less than the amount of overpayments made to him, and (B)(i) from whom the [Secretary](/usc/42/1301.md?p=a-6) has been unable to recover overpayments received in [violation](/usc/42/2000e–16a.md?p=c) of the terms of such assignment, or (ii) from whom the [Secretary](/usc/42/1301.md?p=a-6) has been unable to collect the information necessary to enable him to determine the amount (if any) of the overpayments made to such [person](/usc/42/1301.md?p=a-3) under subchapter XVIII.
- (b) **Reductions in payments to and by States—** The [Secretary](/usc/42/1301.md?p=a-6) may (subject to the remaining provisions of this section) reduce payment to a [State](/usc/42/1396b.md?p=w-7-D) under this subchapter for any quarter by an amount equal to the lesser of the Federal matching share of payments to any institution or [person](/usc/42/1301.md?p=a-3) specified in [subsection (a)](#a), or the total overpayments to such institution or [person](/usc/42/1301.md?p=a-3) under subchapter XVIII, and may require the [State](/usc/42/1396b.md?p=w-7-D) to reduce its payment to such institution or [person](/usc/42/1301.md?p=a-3) by such amount.
- (c) **Notice—** The [Secretary](/usc/42/1301.md?p=a-6) shall not make any adjustment in the payment to a [State](/usc/42/1396b.md?p=w-7-D), nor require any adjustment in the payment to an institution or [person](/usc/42/1301.md?p=a-3), pursuant to [subsection (b)](#b) until after he has provided adequate notice (which shall be not less than 60 days) to the [State agency](/usc/42/1320a–7a.md?p=i-1) and the institution or [person](/usc/42/1301.md?p=a-3).
- (d) **Regulations—** The [Secretary](/usc/42/1301.md?p=a-6) shall by regulation provide procedures for implementation of this section, which procedures shall (1) determine the amount of the Federal payment to which the institution or [person](/usc/42/1301.md?p=a-3) would otherwise be entitled under this section which shall be treated as a setoff against overpayments under subchapter XVIII, and (2) assure the restoration to the institution or [person](/usc/42/1301.md?p=a-3) of amounts withheld under this section which are ultimately determined to be in excess of overpayments under subchapter XVIII and to which the institution or [person](/usc/42/1301.md?p=a-3) would otherwise be entitled under this subchapter.
- (e) **Restoration to trust funds of recovered amounts—** The [Secretary](/usc/42/1301.md?p=a-6) shall restore to the [trust](/usc/42/12854.md?p=6) [funds](/usc/42/12854.md?p=3) established under sections [1395i](/usc/42/1395i.md) and [1395t](/usc/42/1395t.md) of this title, as appropriate, amounts recovered under this section as setoffs against overpayments under subchapter XVIII.
- (f) **Liability of States for withheld payments—** Notwithstanding any other provision of this subchapter, an institution or [person](/usc/42/1301.md?p=a-3) shall not be entitled to recover from any [State](/usc/42/1396b.md?p=w-7-D) any amount in payment for [medical care](/usc/42/1301.md?p=a-7) and services under this subchapter which is withheld by the [State agency](/usc/42/1320a–7a.md?p=i-1) pursuant to an order by the [Secretary](/usc/42/1301.md?p=a-6) under [subsection (b)](#b).

# §1396n. Compliance with State plan and payment provisions

- (a) **Activities deemed as compliance—** A [State](/usc/42/1396b.md?p=w-7-D) shall not be deemed to be out of compliance with the requirements of paragraphs (1), (10), or (23) of [section 1396a(a) of this title](/usc/42/1396a.md?p=a) solely by reason of the fact that the [State](/usc/42/1396b.md?p=w-7-D) (or any political subdivision thereof)—
  - (1) has entered into—
    - (A) a contract with an organization which has agreed to provide care and services in addition to those offered under the [State](/usc/42/1396b.md?p=w-7-D) plan to [individuals](#i-2) eligible for medical assistance who reside in the [geographic area](/usc/42/11360.md?p=9) served by such organization and who elect to obtain such care and services from such organization, or by reason of the fact that the plan provides for payment for [rural health clinic services](/usc/42/1396d.md?p=l-1) only if those services are provided by a [rural health clinic](/usc/42/254c.md?p=b-2); or
    - (B) arrangements through a competitive bidding process or otherwise for the purchase of [laboratory](/usc/42/300jj.md?p=10) services referred to in [section 1396d(a)(3) of this title](/usc/42/1396d.md?p=a-3) or medical devices if the [Secretary](/usc/42/1301.md?p=a-6) has found that—
      - (i) adequate services or devices will be available under such arrangements, and
      - (ii) any such [laboratory](/usc/42/300jj.md?p=10) services will be provided only through [laboratories](/usc/42/300jj.md?p=10)—
        - (I) which meet the applicable requirements of [section 1395x(e)(9) of this title](/usc/42/1395x.md?p=e-9) or paragraphs (16) and (17) of [section 1395x(s) of this title](/usc/42/1395x.md?p=s), and such additional requirements as the [Secretary](/usc/42/1301.md?p=a-6) may require, and
        - (II) no more than 75 percent of whose charges for such services are for services provided to [individuals](#i-2) who are entitled to benefits under this subchapter or under part A or part B of subchapter XVIII; or
  - (2) restricts for a reasonable period of time the provider or providers from which an [individual](#i-2) (eligible for medical assistance for items or services under the [State](/usc/42/1396b.md?p=w-7-D) plan) can receive such items or services, if—
    - (A) the [State](/usc/42/1396b.md?p=w-7-D) has found, after notice and opportunity for a hearing (in accordance with procedures established by the [State](/usc/42/1396b.md?p=w-7-D)), that the [individual](#i-2) has utilized such items or services at a frequency or amount not medically necessary (as determined in accordance with utilization guidelines established by the [State](/usc/42/1396b.md?p=w-7-D)), and
    - (B) under such restriction, [individuals](#i-2) eligible for medical assistance for such services have reasonable access (taking into account geographic location and reasonable travel time) to such services of adequate quality.
- (b) **Waivers to promote cost-effectiveness and efficiency—** The [Secretary](/usc/42/1301.md?p=a-6), to the extent he finds it to be [cost-effective](/usc/42/1396e.md?p=e-2) and efficient and not inconsistent with the purposes of this subchapter, may waive such requirements of [section 1396a of this title](/usc/42/1396a.md) (other than subsection (s)) (other than sections [1396a(a)(15)](/usc/42/1396a.md?p=a-15), [1396a(bb)](/usc/42/1396a.md?p=bb), and [1396a(a)(10)(A)](/usc/42/1396a.md?p=a-10-A) of this title insofar as it requires provision of the care and services described in [section 1396d(a)(2)(C) of this title](/usc/42/1396d.md)) as may be necessary for a [State](/usc/42/1396b.md?p=w-7-D)—
  - (1) to implement a primary care case-management system or a specialty [physician](/usc/42/1301.md?p=a-7) services arrangement which restricts the provider from (or through) whom an [individual](#i-2) (eligible for medical assistance under this subchapter) can obtain [medical care](/usc/42/1301.md?p=a-7) services (other than in emergency circumstances), if such restriction does not substantially impair access to such services of adequate quality where medically necessary,
  - (2) to allow a locality to act as a central broker in assisting [individuals](#i-2) (eligible for medical assistance under this subchapter) in selecting among competing health care plans, if such restriction does not substantially impair access to services of adequate quality where medically necessary,
  - (3) to share (through provision of additional services) with [recipients](/usc/42/2996a.md?p=6) of medical assistance under the [State](/usc/42/1396b.md?p=w-7-D) plan cost savings resulting from use by the [recipient](/usc/42/2996a.md?p=6) of more [cost-effective](/usc/42/1396e.md?p=e-2) [medical care](/usc/42/1301.md?p=a-7), and
  - (4) to restrict the provider from (or through) whom an [individual](#i-2) (eligible for medical assistance under this subchapter) can obtain services (other than in emergency circumstances) to providers or [practitioners](/usc/42/1395a.md?p=b-6-C) who undertake to provide such services and who meet, accept, and comply with the reimbursement, quality, and utilization [standards](/usc/42/1320d.md?p=7) under the [State](/usc/42/1396b.md?p=w-7-D) plan, which [standards](/usc/42/1320d.md?p=7) shall be consistent with the requirements of [section 1396r–4 of this title](/usc/42/1396r–4.md) and are consistent with access, quality, and efficient and economic provision of covered care and services, if such restriction does not discriminate among classes of providers on grounds unrelated to their demonstrated effectiveness and efficiency in providing those services and if providers under such restriction are paid on a timely basis in the same manner as health care [practitioners](/usc/42/1395a.md?p=b-6-C) must be paid under [section 1396a(a)(37)(A) of this title](/usc/42/1396a.md).

  No waiver under this subsection may restrict the choice of the [individual](#i-2) in receiving services under [section 1396d(a)(4)(C) of this title](/usc/42/1396d.md). [Subsection (h)(2)](#h-2) shall apply to a waiver under this subsection.

- (c) **Waiver respecting medical assistance requirement in State plan; scope, etc.; “habilitation services” defined; imposition of certain regulatory limits prohibited; computation of expenditures for certain disabled patients; coordinated services; substitution of participants—**
  - (1) The [Secretary](/usc/42/1301.md?p=a-6) may by waiver provide that a [State](/usc/42/1396b.md?p=w-7-D) plan approved under this subchapter may include as “medical assistance” under such plan payment for part or all of the cost of home or community-based services (other than room and board) approved by the [Secretary](/usc/42/1301.md?p=a-6) which are provided pursuant to a written plan of care to [individuals](#i-2) with respect to whom there has been a determination that but for the provision of such services the [individuals](#i-2) would require the level of care provided in a [hospital](/usc/42/1395dd.md?p=e-5) or a [nursing facility](/usc/42/1396r.md?p=a) or [intermediate care facility for the mentally retarded](/usc/42/1396d.md?p=d) the cost of which could be reimbursed under the [State](/usc/42/1396b.md?p=w-7-D) plan. For purposes of this subsection, the term “room and board” shall not include an amount established under a method determined by the [State](/usc/42/1396b.md?p=w-7-D) to reflect the portion of costs of rent and food attributable to an unrelated personal [caregiver](/usc/42/1397j.md?p=3) who is residing in the same household with an [individual](#i-2) who, but for the assistance of such [caregiver](/usc/42/1397j.md?p=3), would require admission to a [hospital](/usc/42/1395dd.md?p=e-5), [nursing facility](/usc/42/1396r.md?p=a), or [intermediate care facility for the mentally retarded](/usc/42/1396d.md?p=d).
  - (2) A waiver shall not be granted under this subsection unless the [State](/usc/42/1396b.md?p=w-7-D) provides assurances satisfactory to the [Secretary](/usc/42/1301.md?p=a-6) that—
    - (A) necessary safeguards ([including](/usc/42/1301.md?p=b) adequate [standards](/usc/42/1320d.md?p=7) for provider participation) have been taken to protect the health and welfare of [individuals](#i-2) provided services under the waiver and to assure financial accountability for [funds](/usc/42/12854.md?p=3) expended with respect to such services;
    - (B) the [State](/usc/42/1396b.md?p=w-7-D) will provide, with respect to [individuals](#i-2) who—
      - (i) are entitled to medical assistance for inpatient [hospital](/usc/42/1395dd.md?p=e-5) services, [nursing facility services](/usc/42/1396d.md?p=f), or services in an [intermediate care facility for the mentally retarded](/usc/42/1396d.md?p=d) under the [State](/usc/42/1396b.md?p=w-7-D) plan,
      - (ii) may require such services, and
      - (iii) may be eligible for such home or community-based care under such waiver,

      for an evaluation of the need for inpatient [hospital](/usc/42/1395dd.md?p=e-5) services, [nursing facility services](/usc/42/1396d.md?p=f), or services in an [intermediate care facility for the mentally retarded](/usc/42/1396d.md?p=d);

    - (C) such [individuals](#i-2) who are determined to be likely to require the level of care provided in a [hospital](/usc/42/1395dd.md?p=e-5), [nursing facility](/usc/42/1396r.md?p=a), or [intermediate care facility for the mentally retarded](/usc/42/1396d.md?p=d) are informed of the feasible alternatives, if available under the waiver, at the choice of such [individuals](#i-2), to the provision of inpatient [hospital](/usc/42/1395dd.md?p=e-5) services, [nursing facility services](/usc/42/1396d.md?p=f), or services in an [intermediate care facility for the mentally retarded](/usc/42/1396d.md?p=d);
    - (D) under such waiver the average per capita expenditure estimated by the [State](/usc/42/1396b.md?p=w-7-D) in any fiscal year for medical assistance provided with respect to such [individuals](#i-2) does not exceed 100 percent of the average per capita expenditure that the [State](/usc/42/1396b.md?p=w-7-D) reasonably estimates would have been made in that fiscal year for expenditures under the [State](/usc/42/1396b.md?p=w-7-D) plan for such [individuals](#i-2) if the waiver had not been granted; and
    - (E) the [State](/usc/42/1396b.md?p=w-7-D) will provide to the [Secretary](/usc/42/1301.md?p=a-6) annually, consistent with a data collection plan designed by the [Secretary](/usc/42/1301.md?p=a-6), information on the impact of the waiver granted under this subsection on the type and amount of medical assistance provided under the [State](/usc/42/1396b.md?p=w-7-D) plan and on the health and welfare of [recipients](/usc/42/2996a.md?p=6).
  - (3) A waiver granted under this subsection may include a waiver of the requirements of [section 1396a(a)(1) of this title](/usc/42/1396a.md?p=a-1) (relating to statewideness), [section 1396a(a)(10)(B) of this title](/usc/42/1396a.md?p=a-10-B) (relating to comparability), and [section 1396a(a)(10)(C)(i)(III) of this title](/usc/42/1396a.md) (relating to [income](/usc/42/292s.md?p=c-4) and resource rules applicable in the community). A waiver under this subsection (other than a waiver described in [paragraph (11)](#c-11) or [subsection (h)(2)](#h-2)) shall be for an initial term of three years and, upon the request of a [State](/usc/42/1396b.md?p=w-7-D), shall be extended for additional five-year periods unless the [Secretary](/usc/42/1301.md?p=a-6) determines that for the previous waiver period the assurances provided under [paragraph (2)](#c-2) have not been met. A waiver may provide, with respect to post-eligibility [treatment](/usc/42/11851.md?p=11) of [income](/usc/42/292s.md?p=c-4) of all [individuals](#i-2) receiving services under that waiver, that the maximum amount of the [individual](#i-2)’s [income](/usc/42/292s.md?p=c-4) which may be disregarded for any month for the maintenance needs of the [individual](#i-2) may be an amount greater than the maximum allowed for that purpose under regulations in effect on July 1, 1985.
  - (4) A waiver granted under this subsection may, consistent with [paragraph (2)](#c-2)—
    - (A) limit the [individuals](#i-2) provided benefits under such waiver to [individuals](#i-2) with respect to whom the [State](/usc/42/1396b.md?p=w-7-D) has determined that there is a reasonable expectation that the amount of medical assistance provided with respect to the [individual](#i-2) under such waiver will not exceed the amount of such medical assistance provided for such [individual](#i-2) if the waiver did not apply, and
    - (B) provide medical assistance to [individuals](#i-2) (to the extent consistent with written plans of care, which are subject to the approval of the [State](/usc/42/1396b.md?p=w-7-D)) for case management services, homemaker/home health aide services and [personal care services](/usc/42/1396b.md?p=l-5-C), adult day health services, [habilitation services](#c-5), respite care, and such other services requested by the [State](/usc/42/1396b.md?p=w-7-D) as the [Secretary](/usc/42/1301.md?p=a-6) may approve and for day [treatment](/usc/42/11851.md?p=11) or other partial [hospitalization](/usc/42/1301.md?p=a-7) services, psychosocial rehabilitation services, and clinic services (whether or not furnished in a [facility](/usc/42/11049.md?p=4)) for [individuals](#i-2) with chronic mental illness.

    Except as provided under [paragraph (2)(D)](#c-2-D), the [Secretary](/usc/42/1301.md?p=a-6) may not restrict the number of hours or days of respite care in any period which a [State](/usc/42/1396b.md?p=w-7-D) may provide under a waiver under this subsection.

  - (5) For purposes of [paragraph (4)(B)](#c-4-B), the term “habilitation services”—
    - (A) means services designed to assist [individuals](#i-2) in acquiring, retaining, and improving the self-help, socialization, and adaptive skills necessary to reside successfully in home and [community based](/usc/42/11851.md?p=1) settings; and
    - (B) [includes](/usc/42/1301.md?p=b) (except as provided in [subparagraph (C)](#c-5-C)) prevocational, educational, and supported employment services; but
    - (C) does not include—
      - (i) special education and related services (as such terms are defined in [section 1401 of title 20](/usc/20/1401.md)) which otherwise are available to the [individual](#i-2) through a local educational [agency](/usc/42/1397n–12.md?p=1); and
      - (ii) vocational rehabilitation services which otherwise are available to the [individual](#i-2) through a [program](/usc/42/274l–1.md?p=4) funded under [section 730 of title 29](/usc/29/730.md).
  - (6) The [Secretary](/usc/42/1301.md?p=a-6) may not require, as a condition of approval of a waiver under this section under [paragraph (2)(D)](#c-2-D), that the actual [total expenditures](/usc/42/1320f.md?p=c-5) for [home and community-based services](#d-5-C-i) under the waiver (and a [claim](/usc/42/1320a–7a.md?p=i-2) for Federal financial participation in expenditures for the services) cannot exceed the approved estimates for these services. The [Secretary](/usc/42/1301.md?p=a-6) may not deny Federal financial payment with respect to services under such a waiver on the ground that, in order to comply with [paragraph (2)(D)](#c-2-D), a [State](/usc/42/1396b.md?p=w-7-D) has failed to comply with such a requirement.
  - (7)
    - (A) In making estimates under [paragraph (2)(D)](#c-2-D) in the case of a waiver that applies only to [individuals](#i-2) with a particular illness or condition who are inpatients in, or who would require the level of care provided in, [hospitals](/usc/42/1395dd.md?p=e-5), [nursing facilities](/usc/42/1396r.md?p=a), or intermediate care [facilities](/usc/42/11049.md?p=4) for the mentally retarded, the [State](/usc/42/1396b.md?p=w-7-D) may determine the average per capita expenditure that would have been made in a fiscal year for those [individuals](#i-2) under the [State](/usc/42/1396b.md?p=w-7-D) plan separately from the expenditures for other [individuals](#i-2) who are inpatients in, or who would require the level of care provided in, those respective [facilities](/usc/42/11049.md?p=4).
    - (B) In making estimates under [paragraph (2)(D)](#c-2-D) in the case of a waiver that applies only to [individuals](#i-2) with [developmental disabilities](/usc/42/280i.md?p=d-2) who are inpatients in a [nursing facility](/usc/42/1396r.md?p=a) and whom the [State](/usc/42/1396b.md?p=w-7-D) has determined, on the basis of an evaluation under [paragraph (2)(B)](#c-2-B), to need the level of services provided by an [intermediate care facility for the mentally retarded](/usc/42/1396d.md?p=d), the [State](/usc/42/1396b.md?p=w-7-D) may determine the average per capita expenditures that would have been made in a fiscal year for those [individuals](#i-2) under the [State](/usc/42/1396b.md?p=w-7-D) plan on the basis of the average per capita expenditures under the [State](/usc/42/1396b.md?p=w-7-D) plan for services to [individuals](#i-2) who are inpatients in an [intermediate care facility for the mentally retarded](/usc/42/1396d.md?p=d), without regard to the availability of beds for such inpatients.
    - (C) In making estimates under [paragraph (2)(D)](#c-2-D) in the case of a waiver to the extent that it applies to [individuals](#i-2) with mental retardation or a related condition who are resident in an [intermediate care facility for the mentally retarded](/usc/42/1396d.md?p=d) the participation of which under the [State](/usc/42/1396b.md?p=w-7-D) plan is terminated, the [State](/usc/42/1396b.md?p=w-7-D) may determine the average per capita expenditures that would have been made in a fiscal year for those [individuals](#i-2) without regard to any such termination.
  - (8) The [State agency](/usc/42/1320a–7a.md?p=i-1) administering the plan under this subchapter may, whenever appropriate, enter into cooperative arrangements with the [State agency](/usc/42/1320a–7a.md?p=i-1) responsible for administering the [program](/usc/42/274l–1.md?p=4) for [children](/usc/42/256e.md?p=g-2) with special health care needs under subchapter V in order to assure improved access to coordinated services to meet the needs of such [children](/usc/42/256e.md?p=g-2).
  - (9) In the case of any waiver under this subsection which contains a limit on the number of [individuals](#i-2) who shall receive home or community-based services, the [State](/usc/42/1396b.md?p=w-7-D) may substitute additional [individuals](#i-2) to receive such services to replace any [individuals](#i-2) who die or become ineligible for services under the [State](/usc/42/1396b.md?p=w-7-D) plan.
  - (10) The [Secretary](/usc/42/1301.md?p=a-6) shall not limit to fewer than 200 the number of [individuals](#i-2) in the [State](/usc/42/1396b.md?p=w-7-D) who may receive [home and community-based services](#d-5-C-i) under a waiver under this subsection.
  - (11) **Expanding Coverage for Home or Community-based Services.—**
    - (A) **In general.—** Beginning July 1, 2028, notwithstanding [paragraph (1)](#c-1), the [Secretary](/usc/42/1301.md?p=a-6) may approve a waiver that is standalone from any other waiver approved under this subsection to include as medical assistance under the [State](/usc/42/1396b.md?p=w-7-D) plan of such [State](/usc/42/1396b.md?p=w-7-D) payment for part or all of the cost of home or community-based services (other than [room and board](#c-1) (as described in [paragraph (1)](#c-1))) approved by the [Secretary](/usc/42/1301.md?p=a-6) which are provided pursuant to a written plan of care to [individuals](#i-2) described in [subparagraph (B)(iii)](#c-11-B-iii). A waiver approved under this paragraph shall be for an initial term of 3 years and, upon the request of the [State](/usc/42/1396b.md?p=w-7-D), shall be extended for additional 5-year periods unless the [Secretary](/usc/42/1301.md?p=a-6) determines that for the previous waiver period the requirements specified under this subsection (excluding those excepted under [subparagraph (B)](#c-11-B)) have not been met.
    - (B) **State requirements.—** In addition to the requirements specified under this subsection (except for the requirements described in subparagraphs [(C)](#c-2-C) and [(D)](#c-2-D) of paragraph (2) and any other requirement specified under this subsection that the [Secretary](/usc/42/1301.md?p=a-6) determines to be inapplicable in the context of a waiver that does not require [individuals](#i-2) to have a determination described in [paragraph (1)](#c-1)), a [State](/usc/42/1396b.md?p=w-7-D) shall meet the following requirements as a condition of waiver approval:
      - (i) As of the date that such [State](/usc/42/1396b.md?p=w-7-D) requests a waiver under this subsection to provide home or community-based services to [individuals](#i-2) described in [clause (iii)](#c-11-B-iii), all other waivers (if any) granted under this subsection to such [State](/usc/42/1396b.md?p=w-7-D) meet the requirements of this subsection.
      - (ii) The [State](/usc/42/1396b.md?p=w-7-D) demonstrates to the [Secretary](/usc/42/1301.md?p=a-6) that approval of a waiver under this subsection with respect to [individuals](#i-2) described in [clause (iii)](#c-11-B-iii) will not result in a material increase of the average amount of time that [individuals](#i-2) with respect to whom a determination described in [paragraph (1)](#c-1) has been made will need to wait to receive home or community-based services under any other waiver granted under this subsection, as determined by the [Secretary](/usc/42/1301.md?p=a-6).
      - (iii) The [State](/usc/42/1396b.md?p=w-7-D) establishes needs-based criteria, subject to the approval of the [Secretary](/usc/42/1301.md?p=a-6), regarding who will be eligible for home or community-based services under a waiver approved under this paragraph without requiring such [individuals](#i-2) to have a determination described in [paragraph (1)](#c-1), and specifies the home or community-based services such [individuals](#i-2) so eligible will receive.
      - (iv) The [State](/usc/42/1396b.md?p=w-7-D) establishes needs-based criteria for determining whether an [individual](#i-2) described in [clause (iii)](#c-11-B-iii) requires the level of care provided in a [hospital](/usc/42/1395dd.md?p=e-5), [nursing facility](/usc/42/1396r.md?p=a), or an intermediate care [facility](/usc/42/11049.md?p=4) for [individuals](#i-2) with [developmental disabilities](/usc/42/280i.md?p=d-2) under the [State](/usc/42/1396b.md?p=w-7-D) plan or under any waiver of such plan that are more stringent than the needs-based criteria established under [clause (iii)](#c-11-B-iii) for determining eligibility for home or community-based services.
      - (v) The [State](/usc/42/1396b.md?p=w-7-D) attests that the [State](/usc/42/1396b.md?p=w-7-D)’s average per capita expenditure for medical assistance under the [State](/usc/42/1396b.md?p=w-7-D) plan (or waiver of such plan) provided with respect to such [individuals](#i-2) enrolled in a waiver under this paragraph will not exceed the [State](/usc/42/1396b.md?p=w-7-D)’s average per capita expenditure for medical assistance for [individuals](#i-2) receiving institutional care under the [State](/usc/42/1396b.md?p=w-7-D) plan (or waiver of such plan) for the duration that the waiver under this paragraph is in effect.
      - (vi) The [State](/usc/42/1396b.md?p=w-7-D) provides to the [Secretary](/usc/42/1301.md?p=a-6) data (in such form and manner as the [Secretary](/usc/42/1301.md?p=a-6) may specify) regarding the number of [individuals](#i-2) described in [clause (iii)](#c-11-B-iii) with respect to a [State](/usc/42/1396b.md?p=w-7-D) seeking approval of a waiver under this subsection, to whom the [State](/usc/42/1396b.md?p=w-7-D) will make such services available under such waiver.
      - (vii) The [State](/usc/42/1396b.md?p=w-7-D) agrees to provide to the [Secretary](/usc/42/1301.md?p=a-6), not less frequently than annually, data for purposes of [paragraph (2)(E)](#c-2-E) (in such form and manner as the [Secretary](/usc/42/1301.md?p=a-6) may specify) regarding, with respect to each preceding year in which a waiver under this subsection to provide home or community-based services to [individuals](#i-2) described in [clause (iii)](#c-11-B-iii) was in effect—
        - (I) the cost (as such term is defined by the [Secretary](/usc/42/1301.md?p=a-6)) of such services furnished to [individuals](#i-2) described in [clause (iii)](#c-11-B-iii), broken down by type of service;
        - (II) with respect to each type of home or community-based service provided under the waiver, the length of time that such [individuals](#i-2) have received such service;
        - (III) a comparison between the data described in [subclause (I)](#c-11-B-vii-I) and any comparable data available with respect to [individuals](#i-2) with respect to whom a determination described in [paragraph (1)](#c-1) has been made and with respect to [individuals](#i-2) receiving institutional care under this subchapter; and
        - (IV) the number of [individuals](#i-2) who have received home or community-based services under the waiver during the preceding year.
    - (C) **Limitation on payments.—** No payments made to carry out this paragraph shall be used by a [State](/usc/42/1396b.md?p=w-7-D) to make payments to a third party on behalf of an [individual](#i-2) [practitioner](/usc/42/1395a.md?p=b-6-C) for benefits such as health insurance, skills [training](/usc/42/285e–2.md?p=b-2), and other benefits customary for [employees](/usc/42/1320a–7h.md?p=e-7), in the case of a class of [practitioners](/usc/42/1395a.md?p=b-6-C) for which the [program](/usc/42/274l–1.md?p=4) established under this subchapter is the primary source of revenue.
- (d) **Home and community-based services for elderly—**
  - (1) Subject to [paragraph (2)](#d-2), the [Secretary](/usc/42/1301.md?p=a-6) shall [grant](/usc/42/1397j.md?p=10) a waiver to provide that a [State](/usc/42/1396b.md?p=w-7-D) plan approved under this subchapter shall include as “medical assistance” under such plan payment for part or all of the cost of home or community-based services (other than room and board) which are provided pursuant to a written plan of care to [individuals](#i-2) 65 years of age or older with respect to whom there has been a determination that but for the provision of such services the [individuals](#i-2) would be likely to require the level of care provided in a [skilled nursing facility](/usc/42/1395x.md?p=j) or intermediate care [facility](/usc/42/11049.md?p=4) the cost of which could be reimbursed under the [State](/usc/42/1396b.md?p=w-7-D) plan. For purposes of this subsection, the term “room and board” shall not include an amount established under a method determined by the [State](/usc/42/1396b.md?p=w-7-D) to reflect the portion of costs of rent and food attributable to an unrelated personal [caregiver](/usc/42/1397j.md?p=3) who is residing in the same household with an [individual](#i-2) who, but for the assistance of such [caregiver](/usc/42/1397j.md?p=3), would require admission to a [hospital](/usc/42/1395dd.md?p=e-5), [nursing facility](/usc/42/1396r.md?p=a), or [intermediate care facility for the mentally retarded](/usc/42/1396d.md?p=d).
  - (2) A waiver shall not be granted under this subsection unless the [State](/usc/42/1396b.md?p=w-7-D) provides assurances satisfactory to the [Secretary](/usc/42/1301.md?p=a-6) that—
    - (A) necessary safeguards ([including](/usc/42/1301.md?p=b) adequate [standards](/usc/42/1320d.md?p=7) for provider participation) have been taken to protect the health and welfare of [individuals](#i-2) provided services under the waiver and to assure financial accountability for [funds](/usc/42/12854.md?p=3) expended with respect to such services;
    - (B) with respect to [individuals](#i-2) 65 years of age or older who—
      - (i) are entitled to medical assistance for skilled nursing or [intermediate care facility services](#d-5-C-iii) under the [State](/usc/42/1396b.md?p=w-7-D) plan,
      - (ii) may require such services, and
      - (iii) may be eligible for such home or community-based services under such waiver,

      the [State](/usc/42/1396b.md?p=w-7-D) will provide for an evaluation of the need for such [skilled nursing facility](/usc/42/1395x.md?p=j) or [intermediate care facility services](#d-5-C-iii); and

    - (C) such [individuals](#i-2) who are determined to be likely to require the level of care provided in a [skilled nursing facility](/usc/42/1395x.md?p=j) or intermediate care [facility](/usc/42/11049.md?p=4) are informed of the feasible alternatives to the provision of [skilled nursing facility](/usc/42/1395x.md?p=j) or [intermediate care facility services](#d-5-C-iii), which such [individuals](#i-2) may choose if available under the waiver.

    Each [State](/usc/42/1396b.md?p=w-7-D) with a waiver under this subsection shall provide to the [Secretary](/usc/42/1301.md?p=a-6) annually, consistent with a reasonable data collection plan designed by the [Secretary](/usc/42/1301.md?p=a-6), information on the impact of the waiver granted under this subsection on the type and amount of medical assistance provided under the [State](/usc/42/1396b.md?p=w-7-D) plan and on the health and welfare of [recipients](/usc/42/2996a.md?p=6).

  - (3) A waiver granted under this subsection may include a waiver of the requirements of [section 1396a(a)(1) of this title](/usc/42/1396a.md?p=a-1) (relating to statewideness), [section 1396a(a)(10)(B) of this title](/usc/42/1396a.md?p=a-10-B) (relating to comparability), and [section 1396a(a)(10)(C)(i)(III) of this title](/usc/42/1396a.md) (relating to [income](/usc/42/292s.md?p=c-4) and resource rules applicable in the community). Subject to a termination by the [State](/usc/42/1396b.md?p=w-7-D) (with notice to the [Secretary](/usc/42/1301.md?p=a-6)) at any time, a waiver under this subsection (other than a waiver described in [subsection (h)(2)](#h-2)) shall be for an initial term of 3 years and, upon the request of a [State](/usc/42/1396b.md?p=w-7-D), shall be extended for additional 5-year periods unless the [Secretary](/usc/42/1301.md?p=a-6) determines that for the previous waiver period the assurances provided under [paragraph (2)](#d-2) have not been met. A waiver may provide, with respect to post-eligibility [treatment](/usc/42/11851.md?p=11) of [income](/usc/42/292s.md?p=c-4) of all [individuals](#i-2) receiving services under the waiver, that the maximum amount of the [individual](#i-2)’s [income](/usc/42/292s.md?p=c-4) which may be disregarded for any month is equal to the amount that may be allowed for that purpose under a waiver under [subsection (c)](#c).
  - (4) A waiver under this subsection may, consistent with [paragraph (2)](#d-2), provide medical assistance to [individuals](#i-2) for case management services, homemaker/home health aide services and [personal care services](/usc/42/1396b.md?p=l-5-C), adult day health services, respite care, and other medical and [social](/usc/42/1397j.md?p=20) services that can contribute to the health and well-being of [individuals](#i-2) and their ability to reside in a community-based care setting.
  - (5)
    - (A) In the case of a [State](/usc/42/1396b.md?p=w-7-D) having a waiver approved under this subsection, notwithstanding any other provision of [section 1396b of this title](/usc/42/1396b.md) to the contrary, the total amount expended by the [State](/usc/42/1396b.md?p=w-7-D) for medical assistance with respect to [skilled nursing facility](/usc/42/1395x.md?p=j) services, [intermediate care facility services](#d-5-C-iii), and home and community-based services under the [State](/usc/42/1396b.md?p=w-7-D) plan for [individuals](#i-2) 65 years of age or older during a waiver year under this subsection may not exceed the projected amount determined under [subparagraph (B)](#d-5-B).
    - (B) For purposes of [subparagraph (A)](#d-5-A), the projected amount under this subparagraph is the sum of the following:
      - (i) The aggregate amount of the [State](/usc/42/1396b.md?p=w-7-D)’s medical assistance under this subchapter for [skilled nursing facility](/usc/42/1395x.md?p=j) services and [intermediate care facility services](#d-5-C-iii) furnished to [individuals](#i-2) who have attained the age of 65 for the [base year](#d-5-C-ii-II) increased by a percentage which is equal to the lesser of 7 percent times the number of years (rounded to the nearest quarter of a year) beginning after the [base year](#d-5-C-ii-II) and ending at the end of the waiver year involved or the sum of—
        - (I) the percentage increase (based on an appropriate market-basket index representing the costs of elements of such services) between the beginning of the [base year](#d-5-C-ii-II) and the beginning of the waiver year involved, plus
        - (II) the percentage increase between the beginning of the [base year](#d-5-C-ii-II) and the beginning of the waiver year involved in the number of residents in the [State](/usc/42/1396b.md?p=w-7-D) who have attained the age of 65, plus
        - (III) 2 percent for each year (rounded to the nearest quarter of a year) beginning after the [base year](#d-5-C-ii-II) and ending at the end of the waiver year.
      - (ii) The aggregate amount of the [State](/usc/42/1396b.md?p=w-7-D)’s medical assistance under this subchapter for home and community-based services for [individuals](#i-2) who have attained the age of 65 for the [base year](#d-5-C-ii-II) increased by a percentage which is equal to the lesser of 7 percent times the number of years (rounded to the nearest quarter of a year) beginning after the [base year](#d-5-C-ii-II) and ending at the end of the waiver year involved or the sum of—
        - (I) the percentage increase (based on an appropriate market-basket index representing the costs of elements of such services) between the beginning of the [base year](#d-5-C-ii-II) and the beginning of the waiver year involved, plus
        - (II) the percentage increase between the beginning of the [base year](#d-5-C-ii-II) and the beginning of the waiver year involved in the number of residents in the [State](/usc/42/1396b.md?p=w-7-D) who have attained the age of 65, plus
        - (III) 2 percent for each year (rounded to the nearest quarter of a year) beginning after the [base year](#d-5-C-ii-II) and ending at the end of the waiver year.
      - (iii) The [Secretary](/usc/42/1301.md?p=a-6) shall develop and promulgate by regulation (by not later than October 1, 1989)—
        - (I) a method, based on an index of appropriately weighted indicators of changes in the wages and prices of the mix of goods and services which comprise both [skilled nursing facility](/usc/42/1395x.md?p=j) services and [intermediate care facility services](#d-5-C-iii) (regardless of the source of payment for such services), for projecting the percentage increase for purposes of [clause (i)(I)](#d-5-B-i-I);
        - (II) a method, based on an index of appropriately weighted indicators of changes in the wages and prices of the mix of goods and services which comprise home and community-based services (regardless of the source of payment for such services), for projecting the percentage increase for purposes of [clause (ii)(I)](#d-5-B-ii-I); and
        - (III) a method for projecting, on a [State](/usc/42/1396b.md?p=w-7-D) specific basis, the percentage increase in the number of residents in each [State](/usc/42/1396b.md?p=w-7-D) who are over 65 years of age for any period.

        The [Secretary](/usc/42/1301.md?p=a-6) shall develop (by not later than October 1, 1989) a method for projecting, on a [State](/usc/42/1396b.md?p=w-7-D)-specific basis, the percentage increase in the number of residents in each [State](/usc/42/1396b.md?p=w-7-D) who are over 65 years of age for any period. Effective on and after the date the [Secretary](/usc/42/1301.md?p=a-6) promulgates the regulation under [clause (iii)](#d-5-B-iii), any reference in this subparagraph to the “lesser of 7 percent” shall be deemed to be a reference to the “greater of 7 percent”.

      - (iv) If there is enacted after December 22, 1987, an Act which amends this subchapter whose provisions become effective on or after such date and which results in an increase in the aggregate amount of medical assistance under this subchapter for [nursing facility services](/usc/42/1396d.md?p=f) and home and community-based services for [individuals](#i-2) who have attained the age of 65 years, the [Secretary](/usc/42/1301.md?p=a-6), at the request of a [State](/usc/42/1396b.md?p=w-7-D) with a waiver under this subsection for a waiver year or years and in close consultation with the [State](/usc/42/1396b.md?p=w-7-D), shall adjust the projected amount computed under this subparagraph for the waiver year or years to take into account such increase.
    - (C) In this paragraph:
      - (i) The term “home and community-based services” [includes](/usc/42/1301.md?p=b) services described in sections [1396d(a)(7)](/usc/42/1396d.md?p=a-7) and [1396d(a)(8)](/usc/42/1396d.md?p=a-8) of this title, services described in [subsection (c)(4)(B)](#c-4-B), services described in [paragraph (4)](#d-4), and [personal care services](/usc/42/1396b.md?p=l-5-C).
      - (ii)
        - (I) Subject to [subclause (II)](#d-5-C-ii-II), the term “[base year](#d-5-C-ii-II)” means the most recent year (ending before December 22, 1987) for which actual final expenditures under this subchapter have been reported to, and accepted by, the [Secretary](/usc/42/1301.md?p=a-6).
        - (II) For purposes of [subparagraph (C)](#d-5-C), in the case of a [State](/usc/42/1396b.md?p=w-7-D) that does not report expenditures on the basis of the age [categories](/usc/42/1395w–4.md?p=j-1) described in such subparagraph for a year ending before December 22, 1987, the term “base year” means fiscal year 1989.
      - (iii) The term “intermediate care facility services” does not include services furnished in an institution certified in accordance with [section 1396d(d) of this title](/usc/42/1396d.md?p=d).
  - (6)
    - (A) A determination by the [Secretary](/usc/42/1301.md?p=a-6) to deny a request for a waiver (or extension of waiver) under this subsection shall be subject to review to the extent provided under [section 1316(b) of this title](/usc/42/1316.md?p=b).
    - (B) Notwithstanding any other provision of this chapter, if the [Secretary](/usc/42/1301.md?p=a-6) denies a request of the [State](/usc/42/1396b.md?p=w-7-D) for an extension of a waiver under this subsection, any waiver under this subsection in effect on the date such request is made shall remain in effect for a period of not less than 90 days after the date on which the [Secretary](/usc/42/1301.md?p=a-6) denies such request (or, if the [State](/usc/42/1396b.md?p=w-7-D) seeks review of such determination in accordance with [subparagraph (A)](#d-6-A), the date on which a final determination is made with respect to such review).
- (e) **Waiver for children infected with AIDS or drug dependent at birth—**
  - (1)
    - (A) Subject to [paragraph (2)](#e-2), the [Secretary](/usc/42/1301.md?p=a-6) shall [grant](/usc/42/1397j.md?p=10) a waiver to provide that a [State](/usc/42/1396b.md?p=w-7-D) plan approved under this subchapter shall include as “medical assistance” under such plan payment for part or all of the cost of nursing care, respite care, [physicians](/usc/42/1396d.md?p=e)’ services, prescribed [drugs](/usc/42/282.md?p=j-1-A-vii), medical devices and supplies, transportation services, and such other services requested by the [State](/usc/42/1396b.md?p=w-7-D) as the [Secretary](/usc/42/1301.md?p=a-6) may approve which are provided pursuant to a written plan of care to a [child](/usc/42/416.md?p=e) described in [subparagraph (B)](#e-1-B) with respect to whom there has been a determination that but for the provision of such services the infants would be likely to require the level of care provided in a [hospital](/usc/42/1395dd.md?p=e-5) or [nursing facility](/usc/42/1396r.md?p=a) the cost of which could be reimbursed under the [State](/usc/42/1396b.md?p=w-7-D) plan.
    - (B) [Children](/usc/42/256e.md?p=g-2) described in this subparagraph are [individuals](#i-2) under 5 years of age who—
      - (i) at the time of birth were infected with (or tested positively for) the etiologic agent for acquired immune deficiency syndrome (AIDS),
      - (ii) have such syndrome, or
      - (iii) at the time of birth were dependent on heroin, cocaine, or phencyclidine,

      and with respect to whom adoption or foster care assistance is (or will be) made available under part E of subchapter IV.

  - (2) A waiver shall not be granted under this subsection unless the [State](/usc/42/1396b.md?p=w-7-D) provides assurances satisfactory to the [Secretary](/usc/42/1301.md?p=a-6) that—
    - (A) necessary safeguards ([including](/usc/42/1301.md?p=b) adequate [standards](/usc/42/1320d.md?p=7) for provider participation) have been taken to protect the health and welfare of [individuals](#i-2) provided services under the waiver and to assure financial accountability for [funds](/usc/42/12854.md?p=3) expended with respect to such services;
    - (B) under such waiver the average per capita expenditure estimated by the [State](/usc/42/1396b.md?p=w-7-D) in any fiscal year for medical assistance provided with respect to such [individuals](#i-2) does not exceed 100 percent of the average per capita expenditure that the [State](/usc/42/1396b.md?p=w-7-D) reasonably estimates would have been made in that fiscal year for expenditures under the [State](/usc/42/1396b.md?p=w-7-D) plan for such [individuals](#i-2) if the waiver had not been granted; and
    - (C) the [State](/usc/42/1396b.md?p=w-7-D) will provide to the [Secretary](/usc/42/1301.md?p=a-6) annually, consistent with a data collection plan designed by the [Secretary](/usc/42/1301.md?p=a-6), information on the impact of the waiver granted under this subsection on the type and amount of medical assistance provided under the [State](/usc/42/1396b.md?p=w-7-D) plan and on the health and welfare of [recipients](/usc/42/2996a.md?p=6).
  - (3) A waiver granted under this subsection may include a waiver of the requirements of [section 1396a(a)(1) of this title](/usc/42/1396a.md?p=a-1) (relating to statewideness) and [section 1396a(a)(10)(B) of this title](/usc/42/1396a.md?p=a-10-B) (relating to comparability). A waiver under this subsection shall be for an initial term of 3 years and, upon the request of a [State](/usc/42/1396b.md?p=w-7-D), shall be extended for additional five-year periods unless the [Secretary](/usc/42/1301.md?p=a-6) determines that for the previous waiver period the assurances provided under [paragraph (2)](#e-2) have not been met.
  - (4) The provisions of [paragraph (6)](#d-6) of subsection (d) shall apply to this subsection in the same manner as it applies to [subsection (d)](#d).
- (f) **Monitor of implementation of waivers; termination of waiver for noncompliance; time limitation for action on requests for plan approval, amendments, or waivers—**
  - (1) The [Secretary](/usc/42/1301.md?p=a-6) shall monitor the implementation of waivers granted under this section to assure that the requirements for such waiver are being met and shall, after notice and opportunity for a hearing, terminate any such waiver where he finds noncompliance has occurred.
  - (2) A request to the [Secretary](/usc/42/1301.md?p=a-6) from a [State](/usc/42/1396b.md?p=w-7-D) for approval of a proposed [State](/usc/42/1396b.md?p=w-7-D) plan or plan amendment or a waiver of a requirement of this subchapter submitted by the [State](/usc/42/1396b.md?p=w-7-D) pursuant to a provision of this subchapter shall be deemed granted unless the [Secretary](/usc/42/1301.md?p=a-6), within 90 days after the date of its submission to the [Secretary](/usc/42/1301.md?p=a-6), either denies such request in writing or informs the [State agency](/usc/42/1320a–7a.md?p=i-1) in writing with respect to any additional information which is needed in order to make a final determination with respect to the request. After the date the [Secretary](/usc/42/1301.md?p=a-6) receives such additional information, the request shall be deemed granted unless the [Secretary](/usc/42/1301.md?p=a-6), within 90 days of such date, denies such request.
- (g) **Optional targeted case management services—**
  - (1) A [State](/usc/42/1396b.md?p=w-7-D) may provide, as medical assistance, [case management services](#g-2-A-i) under the plan without regard to the requirements of [section 1396a(a)(1) of this title](/usc/42/1396a.md?p=a-1) and [section 1396a(a)(10)(B) of this title](/usc/42/1396a.md?p=a-10-B). The provision of [case management services](#g-2-A-i) under this subsection shall not restrict the choice of the [individual](#i-2) to receive medical assistance in [violation](/usc/42/2000e–16a.md?p=c) of [section 1396a(a)(23) of this title](/usc/42/1396a.md?p=a-23). A [State](/usc/42/1396b.md?p=w-7-D) may limit the provision of [case management services](#g-2-A-i) under this subsection to [individuals](#i-2) with acquired immune deficiency syndrome (AIDS), or with AIDS-related conditions, or with either, or to [individuals](#i-2) described in [section 1396a(z)(1)(A) of this title](/usc/42/1396a.md?p=z-1-A) and a [State](/usc/42/1396b.md?p=w-7-D) may limit the provision of [case management services](#g-2-A-i) under this subsection to [individuals](#i-2) with chronic mental illness. The [State](/usc/42/1396b.md?p=w-7-D) may limit the case managers available with respect to [case management services](#g-2-A-i) for [eligible individuals](/usc/42/239.md?p=a-6) with [developmental disabilities](/usc/42/280i.md?p=d-2) or with chronic mental illness in order to ensure that the case managers for such [individuals](#i-2) are capable of ensuring that such [individuals](#i-2) receive needed services.
  - (2) For purposes of this subsection:
    - (A)
      - (i) The term “case management services” means services which will assist [individuals](#i-2) eligible under the plan in gaining access to needed medical, [social](/usc/42/1397j.md?p=20), educational, and other services.
      - (ii) Such term [includes](/usc/42/1301.md?p=b) the following:
        - (I) Assessment of an [eligible individual](/usc/42/239.md?p=a-6) to determine service needs, [including](/usc/42/1301.md?p=b) activities that focus on needs identification, to determine the need for any medical, educational, [social](/usc/42/1397j.md?p=20), or other services. Such assessment activities include the following:
          - (aa) Taking client history.
          - (bb) Identifying the needs of the [individual](#i-2), and completing related documentation.
          - (cc) Gathering information from other sources such as [family members](/usc/42/1320d–9.md?p=b-1), medical providers, [social](/usc/42/1397j.md?p=20) workers, and educators, if necessary, to form a complete assessment of the [eligible individual](/usc/42/239.md?p=a-6).
        - (II) Development of a specific care plan based on the information collected through an assessment, that specifies the goals and actions to address the medical, [social](/usc/42/1397j.md?p=20), educational, and other services needed by the [eligible individual](/usc/42/239.md?p=a-6), [including](/usc/42/1301.md?p=b) activities such as ensuring the active participation of the [eligible individual](/usc/42/239.md?p=a-6) and working with the [individual](#i-2) (or the [individual](#i-2)’s authorized health care decision maker) and others to develop such goals and identify a course of action to respond to the assessed needs of the [eligible individual](/usc/42/239.md?p=a-6).
        - (III) Referral and related activities to help an [individual](#i-2) obtain needed services, [including](/usc/42/1301.md?p=b) activities that help link [eligible individuals](/usc/42/239.md?p=a-6) with medical, [social](/usc/42/1397j.md?p=20), educational providers or other [programs](/usc/42/274l–1.md?p=4) and services that are capable of providing needed services, such as making referrals to providers for needed services and scheduling appointments for the [individual](#i-2).
        - (IV) Monitoring and followup activities, [including](/usc/42/1301.md?p=b) activities and contacts that are necessary to ensure the care plan is effectively implemented and adequately addressing the needs of the [eligible individual](/usc/42/239.md?p=a-6), and which may be with the [individual](#i-2), [family members](/usc/42/1320d–9.md?p=b-1), providers, or other entities and conducted as frequently as necessary to help determine such matters as—
          - (aa) whether services are being furnished in accordance with an [individual](#i-2)’s care plan;
          - (bb) whether the services in the care plan are adequate; and
          - (cc) whether there are changes in the needs or status of the [eligible individual](/usc/42/239.md?p=a-6), and if so, making necessary adjustments in the care plan and service arrangements with providers.
      - (iii) Such term does not include the direct delivery of an underlying medical, educational, [social](/usc/42/1397j.md?p=20), or other service to which an [eligible individual](/usc/42/239.md?p=a-6) has been referred, [including](/usc/42/1301.md?p=b), with respect to the direct delivery of foster care services, services such as (but not limited to) the following:
        - (I) Research gathering and completion of documentation required by the foster care [program](/usc/42/274l–1.md?p=4).
        - (II) Assessing adoption placements.
        - (III) Recruiting or interviewing potential foster care [parents](/usc/42/1396a.md?p=k-3).
        - (IV) Serving legal papers.
        - (V) Home investigations.
        - (VI) Providing transportation.
        - (VII) Administering foster care subsidies.
        - (VIII) Making placement arrangements.
    - (B) The term “targeted case management services” are [case management services](#g-2-A-i) that are furnished without regard to the requirements of [section 1396a(a)(1) of this title](/usc/42/1396a.md?p=a-1) and [section 1396a(a)(10)(B) of this title](/usc/42/1396a.md?p=a-10-B) to specific classes of [individuals](#i-2) or to [individuals](#i-2) who reside in specified areas.
  - (3) With respect to contacts with [individuals](#i-2) who are not eligible for medical assistance under the [State](/usc/42/1396b.md?p=w-7-D) plan or, in the case of [targeted case management services](#g-2-B), [individuals](#i-2) who are eligible for such assistance but are not part of the target population specified in the [State](/usc/42/1396b.md?p=w-7-D) plan, such contacts—
    - (A) are considered an allowable case management activity, when the purpose of the contact is directly related to the management of the [eligible individual](/usc/42/239.md?p=a-6)’s care; and
    - (B) are not considered an allowable case management activity if such contacts relate directly to the identification and management of the noneligible or nontargeted [individual](#i-2)’s needs and care.
  - (4)
    - (A) In accordance with [section 1396a(a)(25) of this title](/usc/42/1396a.md?p=a-25), Federal financial participation only is available under this subchapter for [case management services](#g-2-A-i) or [targeted case management services](#g-2-B) if there are no other third parties liable to pay for such services, [including](/usc/42/1301.md?p=b) as reimbursement under a medical, [social](/usc/42/1397j.md?p=20), educational, or other [program](/usc/42/274l–1.md?p=4).
    - (B) A [State](/usc/42/1396b.md?p=w-7-D) shall allocate the costs of any part of such services which are reimbursable under another federally funded [program](/usc/42/274l–1.md?p=4) in accordance with OMB Circular A–87 (or any related or successor guidance or regulations regarding [allocation](/usc/42/2021b.md?p=2) of costs among federally funded [programs](/usc/42/274l–1.md?p=4)) under an approved cost [allocation](/usc/42/2021b.md?p=2) [program](/usc/42/274l–1.md?p=4).
  - (5) Nothing in this subsection shall be construed as affecting the application of rules with respect to third party liability under [programs](/usc/42/274l–1.md?p=4), or activities carried out under title XXVI of the Public Health Service Act [[42 U.S.C. 300ff](/usc/42/300ff.md) et seq.] or by the [Indian](/usc/42/6862.md?p=6) Health Service.
- (h) **Period of waivers; continuations—**
  - (1) No waiver under this section (other than a waiver under subsection [(c)](#c), [(d)](#d), or [(e)](#e), or a waiver described in [paragraph (2)](#h-2)) may extend over a period of longer than two years unless the [State](/usc/42/1396b.md?p=w-7-D) requests continuation of such waiver, and such request shall be deemed granted unless the [Secretary](/usc/42/1301.md?p=a-6), within 90 days after the date of its submission to the [Secretary](/usc/42/1301.md?p=a-6), either denies such request in writing or informs the [State agency](/usc/42/1320a–7a.md?p=i-1) in writing with respect to any additional information which is needed in order to make a final determination with respect to the request. After the date the [Secretary](/usc/42/1301.md?p=a-6) receives such additional information, the request shall be deemed granted unless the [Secretary](/usc/42/1301.md?p=a-6), within 90 days of such date, denies such request.
  - (2)
    - (A) Notwithstanding subsections [(c)(3)](#c-3) and [(d)(3)](#d-3), any waiver under subsection [(b)](#b), [(c)](#c), or [(d)](#d), or a waiver under [section 1315 of this title](/usc/42/1315.md), that provides medical assistance for [dual eligible individuals](#h-2-B) ([including](/usc/42/1301.md?p=b) any such waivers under which non [dual eligible individuals](#h-2-B) may be enrolled in addition to [dual eligible individuals](#h-2-B)) may be conducted for a period of 5 years and, upon the request of the [State](/usc/42/1396b.md?p=w-7-D), may be extended for additional 5-year periods unless the [Secretary](/usc/42/1301.md?p=a-6) determines that for the previous waiver period the conditions for the waiver have not been met or it would no longer be [cost-effective](/usc/42/1396e.md?p=e-2) and efficient, or consistent with the purposes of this subchapter, to extend the waiver.
    - (B) In this paragraph, the term “dual eligible individual” means an [individual](#i-2) who is entitled to, or enrolled for, benefits under part A of subchapter XVIII, or enrolled for benefits under part B of subchapter XVIII, and is eligible for medical assistance under the [State](/usc/42/1396b.md?p=w-7-D) plan under this subchapter or under a waiver of such plan.
- (i) **State plan amendment option to provide home and community-based services for elderly and disabled individuals—**
  - (1) **In general—** Subject to the succeeding provisions of this subsection, a [State](/usc/42/1396b.md?p=w-7-D) may provide through a [State](/usc/42/1396b.md?p=w-7-D) plan amendment for the provision of medical assistance for home and community-based services (within the scope of services described in [paragraph (4)(B)](#c-4-B) of subsection (c) for which the [Secretary](/usc/42/1301.md?p=a-6) has the authority to approve a waiver and not [including](/usc/42/1301.md?p=b) room and board) for [individuals](#i-2) eligible for medical assistance under the [State](/usc/42/1396b.md?p=w-7-D) plan whose [income](/usc/42/292s.md?p=c-4) does not exceed 150 percent of the [poverty line](/usc/42/1395w–114.md?p=a-3-C-ii) (as defined in [section 1397jj(c)(5) of this title](/usc/42/1397jj.md?p=c-5)), without determining that but for the provision of such services the [individuals](#i-2) would require the level of care provided in a [hospital](/usc/42/1395dd.md?p=e-5) or a [nursing facility](/usc/42/1396r.md?p=a) or [intermediate care facility for the mentally retarded](/usc/42/1396d.md?p=d), but only if the [State](/usc/42/1396b.md?p=w-7-D) meets the following requirements:
    - (A) **Needs-based criteria for eligibility for, and receipt of, home and community-based services—** The [State](/usc/42/1396b.md?p=w-7-D) establishes needs-based criteria for determining an [individual](#i-2)’s eligibility under the [State](/usc/42/1396b.md?p=w-7-D) plan for medical assistance for such home and community-based services, and if the [individual](#i-2) is eligible for such services, the specific home and community-based services that the [individual](#i-2) will receive.
    - (B) **Establishment of more stringent needs-based eligibility criteria for institutionalized care—** The [State](/usc/42/1396b.md?p=w-7-D) establishes needs-based criteria for determining whether an [individual](#i-2) requires the level of care provided in a [hospital](/usc/42/1395dd.md?p=e-5), a [nursing facility](/usc/42/1396r.md?p=a), or an [intermediate care facility for the mentally retarded](/usc/42/1396d.md?p=d) under the [State](/usc/42/1396b.md?p=w-7-D) plan or under any waiver of such plan that are more stringent than the needs-based criteria established under [subparagraph (A)](#i-1-A) for determining eligibility for home and community-based services.
    - (C) **Projection of number of individuals to be provided home and community-based services—** The [State](/usc/42/1396b.md?p=w-7-D) submits to the [Secretary](/usc/42/1301.md?p=a-6), in such form and manner, and upon such frequency as the [Secretary](/usc/42/1301.md?p=a-6) shall specify, the projected number of [individuals](#i-2) to be provided home and community-based services.
    - (D) **Criteria based on individual assessment—**
      - (i) **In general—** The criteria established by the [State](/usc/42/1396b.md?p=w-7-D) for purposes of subparagraphs [(A)](#i-1-A) and [(B)](#i-1-B) requires an assessment of an [individual](#i-2)’s support needs and capabilities, and may take into account the inability of the [individual](#i-2) to perform 2 or more activities of daily living (as defined in section 7702B(c)(2)(B) of the Internal Revenue Code of 1986) or the need for significant assistance to perform such activities, and such other risk factors as the [State](/usc/42/1396b.md?p=w-7-D) determines to be appropriate.
      - (ii) **Adjustment authority—** The [State](/usc/42/1396b.md?p=w-7-D) plan amendment provides the [State](/usc/42/1396b.md?p=w-7-D) with the option to modify the criteria established under [subparagraph (A)](#i-1-A) (without having to obtain prior approval from the [Secretary](/usc/42/1301.md?p=a-6)) in the event that the enrollment of [individuals](#i-2) eligible for home and community-based services exceeds the projected enrollment submitted for purposes of [subparagraph (C)](#i-1-C), but only if—
        - (I) the [State](/usc/42/1396b.md?p=w-7-D) provides at least 60 days notice to the [Secretary](/usc/42/1301.md?p=a-6) and the public of the proposed [modification](/usc/42/7501.md?p=4);
        - (II) the [State](/usc/42/1396b.md?p=w-7-D) deems an [individual](#i-2) receiving home and community-based services on the basis of the most recent version of the criteria in effect prior to the effective date of the [modification](/usc/42/7501.md?p=4) to continue to be eligible for such services after the effective date of the [modification](/usc/42/7501.md?p=4) and until such time as the [individual](#i-2) no longer meets the [standard](/usc/42/1320d.md?p=7) for receipt of such services under such pre-[modified](/usc/42/7501.md?p=4) criteria; and
        - (III) after the effective date of such [modification](/usc/42/7501.md?p=4), the [State](/usc/42/1396b.md?p=w-7-D), at a minimum, applies the criteria for determining whether an [individual](#i-2) requires the level of care provided in a [hospital](/usc/42/1395dd.md?p=e-5), a [nursing facility](/usc/42/1396r.md?p=a), or an [intermediate care facility for the mentally retarded](/usc/42/1396d.md?p=d) under the [State](/usc/42/1396b.md?p=w-7-D) plan or under any waiver of such plan which applied prior to the application of the more stringent criteria developed under [subparagraph (B)](#i-1-B).
    - (E) **Independent evaluation and assessment—**
      - (i) **Eligibility determination—** The [State](/usc/42/1396b.md?p=w-7-D) uses an independent evaluation for making the determinations described in subparagraphs [(A)](#i-1-A) and [(B)](#i-1-B).
      - (ii) **Assessment—** In the case of an [individual](#i-2) who is determined to be eligible for home and community-based services, the [State](/usc/42/1396b.md?p=w-7-D) uses an independent assessment, based on the needs of the [individual](#i-2) to—
        - (I) determine a necessary level of services and supports to be provided, consistent with an [individual](#i-2)’s physical and mental capacity;
        - (II) prevent the provision of unnecessary or inappropriate care; and
        - (III) establish an individualized care plan for the [individual](#i-2) in accordance with [subparagraph (G)](#i-1-G).
    - (F) **Assessment—** The independent assessment required under [subparagraph (E)(ii)](#i-1-E-ii) shall include the following:
      - (i) An objective evaluation of an [individual](#i-2)’s inability to perform 2 or more activities of daily living (as defined in section 7702B(c)(2)(B) of the Internal Revenue Code of 1986) or the need for significant assistance to perform such activities.
      - (ii) A face-to-face evaluation of the [individual](#i-2) by an [individual](#i-2) trained in the assessment and evaluation of [individuals](#i-2) whose physical or mental conditions trigger a potential need for home and community-based services.
      - (iii) Where appropriate, consultation with the [individual](#i-2)’s [family](/usc/42/290ff–4.md?p=d-2), spouse, guardian, or other responsible [individual](#i-2).
      - (iv) Consultation with appropriate treating and consulting health and support professionals caring for the [individual](#i-2).
      - (v) An examination of the [individual](#i-2)’s relevant history, medical records, and care and support needs, guided by best [practices](/usc/42/17061.md?p=19) and research on effective strategies that result in improved health and quality of life outcomes.
      - (vi) If the [State](/usc/42/1396b.md?p=w-7-D) offers [individuals](#i-2) the option to self-direct the purchase of, or control the receipt of, home and community-based service, an evaluation of the ability of the [individual](#i-2) or the [individual](#i-2)’s [representative](/usc/42/3058f.md?p=5) to self-direct the purchase of, or control the receipt of, such services if the [individual](#i-2) so elects.
    - (G) **Individualized care plan—**
      - (i) **In general—** In the case of an [individual](#i-2) who is determined to be eligible for home and community-based services, the [State](/usc/42/1396b.md?p=w-7-D) uses the independent assessment required under [subparagraph (E)(ii)](#i-1-E-ii) to establish a written individualized care plan for the [individual](#i-2).
      - (ii) **Plan requirements—** The [State](/usc/42/1396b.md?p=w-7-D) ensures that the individualized care plan for an [individual](#i-2)—
        - (I) is developed—
          - (aa) in consultation with the [individual](#i-2), the [individual](#i-2)’s treating [physician](/usc/42/1301.md?p=a-7), health care or support professional, or other appropriate [individuals](#i-2), as defined by the [State](/usc/42/1396b.md?p=w-7-D), and, where appropriate the [individual](#i-2)’s [family](/usc/42/290ff–4.md?p=d-2), [caregiver](/usc/42/1397j.md?p=3), or [representative](/usc/42/3058f.md?p=5); and
          - (bb) taking into account the extent of, and need for, any [family](/usc/42/290ff–4.md?p=d-2) or other supports for the [individual](#i-2);
        - (II) identifies the necessary home and community-based services to be furnished to the [individual](#i-2) (or, if the [individual](#i-2) elects to self-direct the purchase of, or control the receipt of, such services, funded for the [individual](#i-2)); and
        - (III) is reviewed at least annually and as needed when there is a significant change in the [individual](#i-2)’s circumstances.
      - (iii) **State option to offer election for self-directed services—**
        - (I) **Individual choice—** At the option of the [State](/usc/42/1396b.md?p=w-7-D), the [State](/usc/42/1396b.md?p=w-7-D) may allow an [individual](#i-2) or the [individual](#i-2)’s [representative](/usc/42/3058f.md?p=5) to elect to receive [self-directed](#i-1-G-iii-II) home and community-based services in a manner which gives them the most control over such services consistent with the [individual](#i-2)’s abilities and the requirements of subclauses [(II)](#i-1-G-iii-II) and [(III)](#i-1-G-iii-III).
        - (II) **Self-directed services—** The term “self-directed” means, with respect to the home and community-based services offered under the [State](/usc/42/1396b.md?p=w-7-D) plan amendment, such services for the [individual](#i-2) which are planned and purchased under the direction and control of such [individual](#i-2) or the [individual](#i-2)’s authorized [representative](/usc/42/3058f.md?p=5), [including](/usc/42/1301.md?p=b) the amount, duration, scope, provider, and location of such services, under the [State](/usc/42/1396b.md?p=w-7-D) plan consistent with the following requirements:
          - (aa) **Assessment—** There is an assessment of the needs, capabilities, and preferences of the [individual](#i-2) with respect to such services.
          - (bb) **Service plan—** Based on such assessment, there is developed jointly with such [individual](#i-2) or the [individual](#i-2)’s authorized [representative](/usc/42/3058f.md?p=5) a plan for such services for such [individual](#i-2) that is approved by the [State](/usc/42/1396b.md?p=w-7-D) and that satisfies the requirements of [subclause (III)](#i-1-G-iii-III).
        - (III) **Plan requirements—** For purposes of [subclause (II)(bb)](#i-1-G-iii-II-bb), the requirements of this subclause are that the plan—
          - (aa) specifies those services which the [individual](#i-2) or the [individual](#i-2)’s authorized [representative](/usc/42/3058f.md?p=5) would be responsible for directing;
          - (bb) identifies the methods by which the [individual](#i-2) or the [individual](#i-2)’s authorized [representative](/usc/42/3058f.md?p=5) will select, manage, and dismiss providers of such services;
          - (cc) specifies the role of [family members](/usc/42/1320d–9.md?p=b-1) and others whose participation is sought by the [individual](#i-2) or the [individual](#i-2)’s authorized [representative](/usc/42/3058f.md?p=5) with respect to such services;
          - (dd) is developed through a [person](/usc/42/1301.md?p=a-3)-centered process that is directed by the [individual](#i-2) or the [individual](#i-2)’s authorized [representative](/usc/42/3058f.md?p=5), builds upon the [individual](#i-2)’s capacity to engage in activities that promote community life and that respects the [individual](#i-2)’s preferences, choices, and abilities, and involves [families](/usc/42/12704.md?p=11), friends, and professionals as desired or required by the [individual](#i-2) or the [individual](#i-2)’s authorized [representative](/usc/42/3058f.md?p=5);
          - (ee) [includes](/usc/42/1301.md?p=b) appropriate risk management techniques that recognize the roles and sharing of responsibilities in obtaining services in a [self-directed](#i-1-G-iii-II) manner and assure the appropriateness of such plan based upon the resources and capabilities of the [individual](#i-2) or the [individual](#i-2)’s authorized [representative](/usc/42/3058f.md?p=5); and
          - (ff) may include an individualized budget which identifies the dollar value of the services and supports under the control and direction of the [individual](#i-2) or the [individual](#i-2)’s authorized [representative](/usc/42/3058f.md?p=5).
        - (IV) **Budget process—** With respect to individualized budgets described in [subclause (III)(ff)](#i-1-G-iii-III-ff), the [State](/usc/42/1396b.md?p=w-7-D) plan amendment—
          - (aa) describes the method for calculating the dollar values in such budgets based on reliable costs and service utilization;
          - (bb) defines a process for making adjustments in such dollar values to reflect changes in [individual](#i-2) assessments and service plans; and
          - (cc) provides a procedure to evaluate expenditures under such budgets.
    - (H) **Quality assurance; conflict of interest standards—**
      - (i) **Quality assurance—** The [State](/usc/42/1396b.md?p=w-7-D) ensures that the provision of home and community-based services meets Federal and [State](/usc/42/1396b.md?p=w-7-D) guidelines for quality assurance.
      - (ii) **Conflict of interest standards—** The [State](/usc/42/1396b.md?p=w-7-D) establishes [standards](/usc/42/1320d.md?p=7) for the conduct of the independent evaluation and the independent assessment to safeguard against conflicts of interest.
    - (I) **Redeterminations and appeals—** The [State](/usc/42/1396b.md?p=w-7-D) allows for at least annual redeterminations of eligibility, and appeals in accordance with the frequency of, and manner in which, redeterminations and appeals of eligibility are made under the [State](/usc/42/1396b.md?p=w-7-D) plan.
    - (J) **Presumptive eligibility for assessment—** The [State](/usc/42/1396b.md?p=w-7-D), at its option, elects to provide for a period of presumptive eligibility (not to exceed a period of 60 days) only for those [individuals](#i-2) that the [State](/usc/42/1396b.md?p=w-7-D) has reason to believe may be eligible for home and community-based services. Such presumptive eligibility shall be limited to medical assistance for carrying out the independent evaluation and assessment under [subparagraph (E)](#i-1-E) to determine an [individual](#i-2)’s eligibility for such services and if the [individual](#i-2) is so eligible, the specific home and community-based services that the [individual](#i-2) will receive.
  - (2) **Definition of individual’s representative—** In this section, the term “individual’s [representative](/usc/42/3058f.md?p=5)” means, with respect to an individual, a [parent](/usc/42/1396a.md?p=k-3), a [family member](/usc/42/1320d–9.md?p=b-1), or a guardian of the individual, an advocate for the individual, or any other individual who is authorized to represent the individual.
  - (3) **Nonapplication—** A [State](/usc/42/1396b.md?p=w-7-D) may elect in the [State](/usc/42/1396b.md?p=w-7-D) plan amendment approved under this section to not comply with the requirements of [section 1396a(a)(10)(B) of this title](/usc/42/1396a.md?p=a-10-B) (relating to comparability) and [section 1396a(a)(10)(C)(i)(III) of this title](/usc/42/1396a.md) (relating to [income](/usc/42/292s.md?p=c-4) and resource rules applicable in the community), but only for purposes of provided home and community-based services in accordance with such amendment. Any such election shall not be construed to apply to the provision of services to an [individual](#i-2) receiving medical assistance in an institutionalized setting as a result of a determination that the [individual](#i-2) requires the level of care provided in a [hospital](/usc/42/1395dd.md?p=e-5) or a [nursing facility](/usc/42/1396r.md?p=a) or [intermediate care facility for the mentally retarded](/usc/42/1396d.md?p=d).
  - (4) **No effect on other waiver authority—** Nothing in this subsection shall be construed as affecting the option of a [State](/usc/42/1396b.md?p=w-7-D) to offer home and community-based services under a waiver under subsections [(c)](#c) or [(d)](#d) of this section or under [section 1315 of this title](/usc/42/1315.md).
  - (5) **Continuation of Federal financial participation for medical assistance provided to individuals as of effective date of State plan amendment—** Notwithstanding [paragraph (1)(B)](#i-1-B), Federal financial participation shall continue to be available for an [individual](#i-2) who is receiving medical assistance in an institutionalized setting, or home and community-based services provided under a waiver under this section or [section 1315 of this title](/usc/42/1315.md) that is in effect as of the effective date of the [State](/usc/42/1396b.md?p=w-7-D) plan amendment submitted under this subsection, as a result of a determination that the [individual](#i-2) requires the level of care provided in a [hospital](/usc/42/1395dd.md?p=e-5) or a [nursing facility](/usc/42/1396r.md?p=a) or [intermediate care facility for the mentally retarded](/usc/42/1396d.md?p=d), without regard to whether such [individuals](#i-2) satisfy the more stringent eligibility criteria established under that paragraph, until such time as the [individual](#i-2) is discharged from the institution or waiver [program](/usc/42/274l–1.md?p=4) or no longer requires such level of care.
  - (6) **State option to provide home and community-based services to individuals eligible for services under a waiver—**
    - (A) **In general—** A [State](/usc/42/1396b.md?p=w-7-D) that provides home and community-based services in accordance with this subsection to [individuals](#i-2) who satisfy the needs-based criteria for the receipt of such services established under [paragraph (1)(A)](#i-1-A) may, in addition to continuing to provide such services to such [individuals](#i-2), elect to provide home and community-based services in accordance with the requirements of this paragraph to [individuals](#i-2) who are eligible for home and community-based services under a waiver approved for the [State](/usc/42/1396b.md?p=w-7-D) under subsection [(c)](#c), [(d)](#d), or [(e)](#e) or under [section 1315 of this title](/usc/42/1315.md) to provide such services, but only for those [individuals](#i-2) whose [income](/usc/42/292s.md?p=c-4) does not exceed 300 percent of the supplemental security [income](/usc/42/292s.md?p=c-4) benefit rate established by [section 1382(b)(1) of this title](/usc/42/1382.md?p=b-1).
    - (B) **Application of same requirements for individuals satisfying needs-based criteria—** Subject to [subparagraph (C)](#i-6-C), a [State](/usc/42/1396b.md?p=w-7-D) shall provide home and community-based services to [individuals](#i-2) under this paragraph in the same manner and subject to the same requirements as apply under the other paragraphs of this subsection to the provision of home and community-based services to [individuals](#i-2) who satisfy the needs-based criteria established under [paragraph (1)(A)](#i-1-A).
    - (C) **Authority to offer different type, amount, duration, or scope of home and community-based services—** A [State](/usc/42/1396b.md?p=w-7-D) may offer home and community-based services to [individuals](#i-2) under this paragraph that differ in type, amount, duration, or scope from the home and community-based services offered for [individuals](#i-2) who satisfy the needs-based criteria established under [paragraph (1)(A)](#i-1-A), so long as such services are within the scope of services described in [paragraph (4)(B)](#c-4-B) of subsection (c) for which the [Secretary](/usc/42/1301.md?p=a-6) has the authority to approve a waiver and do not include room or [board](/usc/42/10261.md?p=2).
  - (7) **State option to offer home and community-based services to specific, targeted populations—**
    - (A) **In general—** A [State](/usc/42/1396b.md?p=w-7-D) may elect in a [State](/usc/42/1396b.md?p=w-7-D) plan amendment under this subsection to target the provision of home and community-based services under this subsection to specific populations and to differ the type, amount, duration, or scope of such services to such specific populations.
    - (B) **5-year term—**
      - (i) **In general—** An election by a [State](/usc/42/1396b.md?p=w-7-D) under this paragraph shall be for a period of 5 years.
      - (ii) **Phase-in of services and eligibility permitted during initial 5-year period—** A [State](/usc/42/1396b.md?p=w-7-D) making an election under this paragraph may, during the first 5-year period for which the election is made, phase-in the enrollment of [eligible individuals](/usc/42/239.md?p=a-6), or the provision of services to such [individuals](#i-2), or both, so long as all [eligible individuals](/usc/42/239.md?p=a-6) in the [State](/usc/42/1396b.md?p=w-7-D) for such services are enrolled, and all such services are provided, before the end of the initial 5-year period.
    - (C) **Renewal—** An election by a [State](/usc/42/1396b.md?p=w-7-D) under this paragraph may be renewed for additional 5-year terms if the [Secretary](/usc/42/1301.md?p=a-6) determines, prior to beginning[^1] of each such renewal period, that the [State](/usc/42/1396b.md?p=w-7-D) has—
      - (i) adhered to the requirements of this subsection and paragraph in providing services under such an election; and
      - (ii) met the [State](/usc/42/1396b.md?p=w-7-D)’s objectives with respect to quality improvement and beneficiary outcomes.
- (j) **Optional choice of self-directed personal assistance services—**
  - (1) A [State](/usc/42/1396b.md?p=w-7-D) may provide, as “medical assistance”, payment for part or all of the cost of [self-directed personal assistance services](#j-4-A) (other than room and board) under the plan which are provided pursuant to a written plan of care to [individuals](#i-2) with respect to whom there has been a determination that, but for the provision of such services, the [individuals](#i-2) would require and receive [personal care services](/usc/42/1396b.md?p=l-5-C) under the plan, or home and community-based services provided pursuant to a waiver under [subsection (c)](#c). [Self-directed personal assistance services](#j-4-A) may not be provided under this subsection to [individuals](#i-2) who reside in a home or property that is owned, operated, or controlled by a [provider of services](/usc/42/1395n.md?p=a-2), not related by blood or marriage.
  - (2) The [Secretary](/usc/42/1301.md?p=a-6) shall not [grant](/usc/42/1397j.md?p=10) approval for a [State](/usc/42/1396b.md?p=w-7-D) [self-directed personal assistance services](#j-4-A) [program](/usc/42/274l–1.md?p=4) under this section unless the [State](/usc/42/1396b.md?p=w-7-D) provides assurances satisfactory to the [Secretary](/usc/42/1301.md?p=a-6) of the following:
    - (A) Necessary safeguards have been taken to protect the health and welfare of [individuals](#i-2) provided services under the [program](/usc/42/274l–1.md?p=4), and to assure financial accountability for [funds](/usc/42/12854.md?p=3) expended with respect to such services.
    - (B) The [State](/usc/42/1396b.md?p=w-7-D) will provide, with respect to [individuals](#i-2) who—
      - (i) are entitled to medical assistance for [personal care services](/usc/42/1396b.md?p=l-5-C) under the plan, or receive home and community-based services under a waiver granted under [subsection (c)](#c);
      - (ii) may require [self-directed personal assistance services](#j-4-A); and
      - (iii) may be eligible for [self-directed personal assistance services](#j-4-A),

      an evaluation of the need for personal care under the plan, or personal services under a waiver granted under [subsection (c)](#c).

    - (C) Such [individuals](#i-2) who are determined to be likely to require personal care under the plan, or home and community-based services under a waiver granted under [subsection (c)](#c) are informed of the feasible alternatives, if available under the [State](/usc/42/1396b.md?p=w-7-D)’s [self-directed personal assistance services](#j-4-A) [program](/usc/42/274l–1.md?p=4), at the choice of such [individuals](#i-2), to the provision of [personal care services](/usc/42/1396b.md?p=l-5-C) under the plan, or personal assistance services under a waiver granted under [subsection (c)](#c).
    - (D) The [State](/usc/42/1396b.md?p=w-7-D) will provide for a support system that ensures participants in the [self-directed personal assistance services](#j-4-A) [program](/usc/42/274l–1.md?p=4) are appropriately assessed and counseled prior to enrollment and are able to manage their budgets. Additional counseling and management support may be provided at the request of the participant.
    - (E) The [State](/usc/42/1396b.md?p=w-7-D) will provide to the [Secretary](/usc/42/1301.md?p=a-6) an annual report on the number of [individuals](#i-2) served and [total expenditures](/usc/42/1320f.md?p=c-5) on their behalf in the aggregate. The [State](/usc/42/1396b.md?p=w-7-D) shall also provide an evaluation of overall impact on the health and welfare of participating [individuals](#i-2) compared to non-participants every three years.
  - (3) A [State](/usc/42/1396b.md?p=w-7-D) may provide [self-directed personal assistance services](#j-4-A) under the [State](/usc/42/1396b.md?p=w-7-D) plan without regard to the requirements of [section 1396a(a)(1) of this title](/usc/42/1396a.md?p=a-1) and may limit the population eligible to receive these services and limit the number of [persons](/usc/42/1301.md?p=a-3) served without regard to [section 1396a(a)(10)(B) of this title](/usc/42/1396a.md?p=a-10-B).
  - (4)
    - (A) For purposes of this subsection, the term “self-directed personal assistance services” means personal care and related services, or home and community-based services otherwise available under the plan under this subchapter or [subsection (c)](#c), that are provided to an eligible participant under a self-directed personal assistance services [program](/usc/42/274l–1.md?p=4) under this section, under which [individuals](#i-2), within an [approved self-directed services plan and budget](#j-5), purchase personal assistance and related services, and permits participants to hire, fire, supervise, and manage the [individuals](#i-2) providing such services.
    - (B) At the election of the [State](/usc/42/1396b.md?p=w-7-D)—
      - (i) a participant may choose to use any [individual](#i-2) capable of providing the assigned tasks [including](/usc/42/1301.md?p=b) legally liable relatives as paid providers of the services; and
      - (ii) the [individual](#i-2) may use the [individual](#i-2)’s budget to acquire items that increase [independence](/usc/42/242q–4.md?p=1-B) or substitute (such as a microwave oven or an accessibility ramp) for human assistance, to the extent that expenditures would otherwise be made for the human assistance.
  - (5) For purpose of this section, the term “approved self-directed services plan and budget” means, with respect to a participant, the establishment of a plan and budget for the provision of [self-directed personal assistance services](#j-4-A), consistent with the following requirements:
    - (A) **Self-direction—** The participant (or in the case of a participant who is a minor [child](/usc/42/416.md?p=e), the participant’s [parent](/usc/42/1396a.md?p=k-3) or guardian, or in the case of an incapacitated adult, another [individual](#i-2) recognized by [State](/usc/42/1396b.md?p=w-7-D) law to act on behalf of the participant) exercises choice and control over the budget, planning, and purchase of [self-directed personal assistance services](#j-4-A), [including](/usc/42/1301.md?p=b) the amount, duration, scope, provider, and location of service provision.
    - (B) **Assessment of needs—** There is an assessment of the needs, strengths, and preferences of the participants for such services.
    - (C) **Service plan—** A plan for such services (and supports for such services) for the participant has been developed and approved by the [State](/usc/42/1396b.md?p=w-7-D) based on such assessment through a [person](/usc/42/1301.md?p=a-3)-centered process that—
      - (i) builds upon the participant’s capacity to engage in activities that promote community life and that respects the participant’s preferences, choices, and abilities; and
      - (ii) involves [families](/usc/42/12704.md?p=11), friends, and professionals in the planning or delivery of services or supports as desired or required by the participant.
    - (D) **Service budget—** A budget for such services and supports for the participant has been developed and approved by the [State](/usc/42/1396b.md?p=w-7-D) based on such assessment and plan and on a methodology that uses valid, reliable cost data, is open to public [inspection](/usc/42/4851b.md?p=12), and [includes](/usc/42/1301.md?p=b) a calculation of the expected cost of such services if those services were not self-directed. The budget may not restrict access to other medically necessary care and services furnished under the plan and approved by the [State](/usc/42/1396b.md?p=w-7-D) but not included in the budget.
    - (E) **Application of quality assurance and risk management—** There are appropriate quality assurance and risk management techniques used in establishing and implementing such plan and budget that recognize the roles and responsibilities in obtaining services in a self-directed manner and assure the appropriateness of such plan and budget based upon the participant’s resources and capabilities.
  - (6) A [State](/usc/42/1396b.md?p=w-7-D) may employ a financial management entity to make payments to providers, track costs, and make reports under the [program](/usc/42/274l–1.md?p=4). Payment for the activities of the financial management entity shall be at the administrative rate established in [section 1396b(a) of this title](/usc/42/1396b.md?p=a).
- (k) **State plan option to provide home and community-based attendant services and supports—**
  - (1) **In general—** Subject to the succeeding provisions of this subsection, beginning October 1, 2011, a [State](/usc/42/1396b.md?p=w-7-D) may provide through a [State](/usc/42/1396b.md?p=w-7-D) plan amendment for the provision of medical assistance for home and community-based attendant services and supports for [individuals](#k-6-E) who are eligible for medical assistance under the [State](/usc/42/1396b.md?p=w-7-D) plan whose [income](/usc/42/292s.md?p=c-4) does not exceed 150 percent of the [poverty line](/usc/42/1395w–114.md?p=a-3-C-ii) (as defined in [section 1397jj(c)(5) of this title](/usc/42/1397jj.md?p=c-5)) or, if greater, the [income](/usc/42/292s.md?p=c-4) level applicable for an [individual](#k-6-E) who has been determined to require an institutional level of care to be eligible for [nursing facility services](/usc/42/1396d.md?p=f) under the [State](/usc/42/1396b.md?p=w-7-D) plan and with respect to whom there has been a determination that, but for the provision of such services, the [individuals](#k-6-E) would require the level of care provided in a [hospital](/usc/42/1395dd.md?p=e-5), a [nursing facility](/usc/42/1396r.md?p=a), an [intermediate care facility for the mentally retarded](/usc/42/1396d.md?p=d), or an [institution for mental diseases](/usc/42/1396d.md?p=i), the cost of which could be reimbursed under the [State](/usc/42/1396b.md?p=w-7-D) plan, but only if the [individual](#k-6-E) chooses to receive such home and community-based attendant services and supports, and only if the [State](/usc/42/1396b.md?p=w-7-D) meets the following requirements:
    - (A) **Availability—** The [State](/usc/42/1396b.md?p=w-7-D) shall make available home and community-based attendant services and supports to [eligible individuals](/usc/42/239.md?p=a-6), as needed, to assist in accomplishing [activities of daily living](#k-6-A), [instrumental activities of daily living](#k-6-F), and [health-related tasks](#k-6-D) through hands-on assistance, supervision, or cueing—
      - (i) under a [person](/usc/42/1301.md?p=a-3)-centered plan of services and supports that is based on an assessment of functional need and that is agreed to in writing by the [individual](#k-6-E) or, as appropriate, the [individual](#k-6-E)’s [representative](/usc/42/3058f.md?p=5);
      - (ii) in a home or community setting, which does not include a [nursing facility](/usc/42/1396r.md?p=a), [institution for mental diseases](/usc/42/1396d.md?p=i), or an [intermediate care facility for the mentally retarded](/usc/42/1396d.md?p=d);
      - (iii) under an [agency-provider model](#k-6-C-i) or other model (as defined in [paragraph (6)(C)](#k-6-C)); and
      - (iv) the furnishing of which—
        - (I) is selected, managed, and dismissed by the [individual](#k-6-E), or, as appropriate, with assistance from the [individual](#k-6-E)’s [representative](/usc/42/3058f.md?p=5);
        - (II) is controlled, to the maximum extent possible, by the [individual](#k-6-E) or where appropriate, the [individual](#k-6-E)’s [representative](/usc/42/3058f.md?p=5), regardless of who may act as the employer of record; and
        - (III) provided by an [individual](#k-6-E) who is qualified to provide such services, [including](/usc/42/1301.md?p=b) [family members](/usc/42/1320d–9.md?p=b-1) (as defined by the [Secretary](/usc/42/1301.md?p=a-6)).
    - (B) **Included services and supports—** In addition to assistance in accomplishing [activities of daily living](#k-6-A), [instrumental activities of daily living](#k-6-F), and health related tasks, the home and community-based attendant services and supports made available include—
      - (i) the acquisition, maintenance, and enhancement of skills necessary for the [individual](#k-6-E) to accomplish [activities of daily living](#k-6-A), [instrumental activities of daily living](#k-6-F), and health related tasks;
      - (ii) back-up systems or mechanisms (such as the use of beepers or other electronic devices) to ensure continuity of services and supports; and
      - (iii) voluntary [training](/usc/42/285e–2.md?p=b-2) on how to select, manage, and dismiss attendants.
    - (C) **Excluded services and supports—** Subject to [subparagraph (D)](#k-1-D), the home and community-based attendant services and supports made available do not include—
      - (i) room and board costs for the [individual](#k-6-E);
      - (ii) special education and related services provided under the [Individuals](#k-6-E) with Disabilities Education Act [[20 U.S.C. 1400](/usc/20/1400.md) et seq.] and vocational rehabilitation services provided under the Rehabilitation Act of 1973 [[29 U.S.C. 701](/usc/29/701.md) et seq.];
      - (iii) assistive technology devices and assistive technology services other than those under (1)(B)(ii);
      - (iv) medical supplies and equipment; or
      - (v) home [modifications](/usc/42/7501.md?p=4).
    - (D) **Permissible services and supports—** The home and community-based attendant services and supports may include—
      - (i) expenditures for transition costs such as rent and utility deposits, first month’s rent and utilities, bedding, basic kitchen supplies, and other necessities required for an [individual](#k-6-E) to make the transition from a [nursing facility](/usc/42/1396r.md?p=a), [institution for mental diseases](/usc/42/1396d.md?p=i), or [intermediate care facility for the mentally retarded](/usc/42/1396d.md?p=d) to a community-based home setting where the [individual](#k-6-E) resides; and
      - (ii) expenditures relating to a need identified in an [individual](#k-6-E)’s [person](/usc/42/1301.md?p=a-3)-centered plan of services that increase [independence](/usc/42/242q–4.md?p=1-B) or substitute for human assistance, to the extent that expenditures would otherwise be made for the human assistance.
  - (2) **Increased Federal financial participation—** For purposes of payments to a [State](/usc/42/1396b.md?p=w-7-D) under [section 1396b(a)(1) of this title](/usc/42/1396b.md?p=a-1), with respect to amounts expended by the [State](/usc/42/1396b.md?p=w-7-D) to provide medical assistance under the [State](/usc/42/1396b.md?p=w-7-D) plan for home and community-based attendant services and supports to [eligible individuals](/usc/42/239.md?p=a-6) in accordance with this subsection during a fiscal year quarter occurring during the period described in [paragraph (1)](#k-1), the Federal medical assistance percentage applicable to the [State](/usc/42/1396b.md?p=w-7-D) (as determined under [section 1396d(b) of this title](/usc/42/1396d.md?p=b)) shall be increased by 6 percentage points.
  - (3) **State requirements—** In order for a [State](/usc/42/1396b.md?p=w-7-D) plan amendment to be approved under this subsection, the [State](/usc/42/1396b.md?p=w-7-D) shall—
    - (A) develop and implement such amendment in collaboration with a Development and Implementation [Council](/usc/42/300f.md?p=9) established by the [State](/usc/42/1396b.md?p=w-7-D) that [includes](/usc/42/1301.md?p=b) a majority of members with disabilities, elderly [individuals](#k-6-E), and their [representatives](/usc/42/3058f.md?p=5) and consults and collaborates with such [individuals](#k-6-E);
    - (B) provide [consumer controlled](#k-6-B) home and community-based attendant services and supports to [individuals](#k-6-E) on a statewide basis, in a manner that provides such services and supports in the most integrated setting appropriate to the [individual](#k-6-E)’s needs, and without regard to the [individual](#k-6-E)’s age, type or nature of disability, severity of disability, or the form of home and community-based attendant services and supports that the [individual](#k-6-E) requires in order to lead an independent life;
    - (C) with respect to expenditures during the first full fiscal year in which the [State](/usc/42/1396b.md?p=w-7-D) plan amendment is implemented, maintain or exceed the level of [State](/usc/42/1396b.md?p=w-7-D) expenditures for medical assistance that is provided under [section 1396d(a) of this title](/usc/42/1396d.md?p=a), this section, [section 1315 of this title](/usc/42/1315.md), or otherwise to [individuals](#k-6-E) with disabilities or elderly [individuals](#k-6-E) attributable to the preceding fiscal year;
    - (D) establish and maintain a comprehensive, continuous quality assurance system with respect to community-based attendant services and supports that—
      - (i) [includes](/usc/42/1301.md?p=b) [standards](/usc/42/1320d.md?p=7) for [agency](/usc/42/1397n–12.md?p=1)-based and other delivery models with respect to [training](/usc/42/285e–2.md?p=b-2), appeals for denials and reconsideration procedures of an [individual](#k-6-E) plan, and other factors as determined by the [Secretary](/usc/42/1301.md?p=a-6);
      - (ii) incorporates feedback from consumers and their [representatives](/usc/42/3058f.md?p=5), disability organizations, providers, [families](/usc/42/12704.md?p=11) of disabled or elderly [individuals](#k-6-E), members of the community, and others and maximizes consumer [independence](/usc/42/242q–4.md?p=1-B) and consumer control;
      - (iii) monitors the health and well-being of each [individual](#k-6-E) who receives home and community-based attendant services and supports, [including](/usc/42/1301.md?p=b) a process for the mandatory reporting, investigation, and resolution of allegations of [neglect](/usc/42/1397j.md?p=16), [abuse](/usc/42/1397j.md?p=1), or [exploitation](/usc/42/1397j.md?p=8) in connection with the provision of such services and supports; and
      - (iv) provides information about the provisions of the quality assurance required under [clauses (i) through (iii)](#k-3-D-i..k-3-D-iii) to each [individual](#k-6-E) receiving such services; and
    - (E) collect and report information, as determined necessary by the [Secretary](/usc/42/1301.md?p=a-6), for the purposes of approving the [State](/usc/42/1396b.md?p=w-7-D) plan amendment, providing Federal oversight, and conducting an evaluation under [paragraph (5)(A)](#k-5-A), [including](/usc/42/1301.md?p=b) data regarding how the [State](/usc/42/1396b.md?p=w-7-D) provides home and community-based attendant services and supports and other home and community-based services, the cost of such services and supports, and how the [State](/usc/42/1396b.md?p=w-7-D) provides [individuals](#k-6-E) with disabilities who otherwise qualify for institutional care under the [State](/usc/42/1396b.md?p=w-7-D) plan or under a waiver the choice to instead receive home and community-based services in lieu of institutional care.
  - (4) **Compliance with certain laws—** A [State](/usc/42/1396b.md?p=w-7-D) shall ensure that, regardless of whether the [State](/usc/42/1396b.md?p=w-7-D) uses an [agency-provider model](#k-6-C-i) or [other models](#k-6-C-ii) to provide home and community-based attendant services and supports under a [State](/usc/42/1396b.md?p=w-7-D) plan amendment under this subsection, such services and supports are provided in accordance with the requirements of the Fair Labor Standards Act of 1938 [[29 U.S.C. 201](/usc/29/201.md) et seq.] and applicable Federal and [State](/usc/42/1396b.md?p=w-7-D) laws regarding—
    - (A) withholding and payment of Federal and [State](/usc/42/1396b.md?p=w-7-D) [income](/usc/42/292s.md?p=c-4) and payroll taxes;
    - (B) the provision of unemployment and workers compensation insurance;
    - (C) maintenance of general liability insurance; and
    - (D) occupational health and safety.
  - (5) **Evaluation, data collection, and report to Congress—**
    - (A) **Evaluation—** The [Secretary](/usc/42/1301.md?p=a-6) shall conduct an evaluation of the provision of home and community-based attendant services and supports under this subsection in order to determine the effectiveness of the provision of such services and supports in allowing the [individuals](#k-6-E) receiving such services and supports to lead an independent life to the maximum extent possible; the impact on the physical and emotional health of the [individuals](#k-6-E) who receive such services; and an[^2] comparative analysis of the costs of services provided under the [State](/usc/42/1396b.md?p=w-7-D) plan amendment under this subsection and those provided under institutional care in a [nursing facility](/usc/42/1396r.md?p=a), [institution for mental diseases](/usc/42/1396d.md?p=i), or an [intermediate care facility for the mentally retarded](/usc/42/1396d.md?p=d).
    - (B) **Data collection—** The [State](/usc/42/1396b.md?p=w-7-D) shall provide the [Secretary](/usc/42/1301.md?p=a-6) with the following information regarding the provision of home and community-based attendant services and supports under this subsection for each fiscal year for which such services and supports are provided:
      - (i) The number of [individuals](#k-6-E) who are estimated to receive home and community-based attendant services and supports under this subsection during the fiscal year.
      - (ii) The number of [individuals](#k-6-E) that received such services and supports during the preceding fiscal year.
      - (iii) The specific number of [individuals](#k-6-E) served by type of disability, age, gender, education level, and employment status.
      - (iv) Whether the specific [individuals](#k-6-E) have been previously served under any other home and [community based](/usc/42/11851.md?p=1) services [program](/usc/42/274l–1.md?p=4) under the [State](/usc/42/1396b.md?p=w-7-D) plan or under a waiver.
    - (C) **Reports—** Not later than—
      - (i) December 31, 2013, the [Secretary](/usc/42/1301.md?p=a-6) shall submit to Congress and make available to the public an interim report on the findings of the evaluation under [subparagraph (A)](#k-5-A); and
      - (ii) December 31, 2015, the [Secretary](/usc/42/1301.md?p=a-6) shall submit to Congress and make available to the public a final report on the findings of the evaluation under [subparagraph (A)](#k-5-A).
  - (6) **Definitions—** In this subsection:
    - (A) **Activities of daily living—** The term “activities of daily living” [includes](/usc/42/1301.md?p=b) tasks such as eating, toileting, grooming, dressing, bathing, and transferring.
    - (B) **Consumer controlled—** The term “consumer controlled” means a method of selecting and providing services and supports that allow the [individual](#k-6-E), or where appropriate, the [individual](#k-6-E)’s [representative](/usc/42/3058f.md?p=5), maximum control of the home and community-based attendant services and supports, regardless of who acts as the employer of record.
    - (C) **Delivery models—**
      - (i) **Agency-provider model—** The term “agency-provider model” means, with respect to the provision of home and community-based attendant services and supports for an [individual](#k-6-E), subject to [paragraph (4)](#k-4), a method of providing [consumer controlled](#k-6-B) services and supports under which entities contract for the provision of such services and supports.
      - (ii) **Other models—** The term “other models” means, subject to [paragraph (4)](#k-4), methods, other than an [agency-provider model](#k-6-C-i), for the provision of [consumer controlled](#k-6-B) services and supports. Such models may include the provision of vouchers, direct cash payments, or use of a fiscal agent to assist in obtaining services.
    - (D) **Health-related tasks—** The term “health-related tasks” means specific tasks related to the needs of an [individual](#k-6-E), which can be delegated or assigned by licensed health-care professionals under [State](/usc/42/1396b.md?p=w-7-D) law to be performed by an attendant.
    - (E) **Individual’s representative—** The term “individual’s [representative](/usc/42/3058f.md?p=5)” means a [parent](/usc/42/1396a.md?p=k-3), [family member](/usc/42/1320d–9.md?p=b-1), guardian, advocate, or other authorized [representative](/usc/42/3058f.md?p=5) of an individual[^3]
    - (F) **Instrumental activities of daily living—** The term “instrumental activities of daily living” [includes](/usc/42/1301.md?p=b) (but is not limited to) meal planning and preparation, managing finances, shopping for food, clothing, and other essential items, performing essential household chores, communicating by phone or other media, and traveling around and participating in the community.
- (l) **State plan amendment option to provide medical assistance for certain individuals who are patients in certain institutions for mental diseases—**
  - (1) **In general—** With respect to calendar quarters beginning on or after October 1, 2019, a [State](/usc/42/1396b.md?p=w-7-D) may elect, through a [State](/usc/42/1396b.md?p=w-7-D) plan amendment, to provide medical assistance for items and services furnished to an [eligible individual](#l-7-A) who is a patient in an [eligible institution for mental diseases](#l-7-B) in accordance with the requirements of this subsection.
  - (2) **Payments—** Subject to paragraphs [(3)](#l-3) and [(4)](#l-4), amounts expended under a [State](/usc/42/1396b.md?p=w-7-D) plan amendment under [paragraph (1)](#l-1) for services described in such paragraph furnished, with respect to a 12-month period, to an [eligible individual](#l-7-A) who is a patient in an [eligible institution for mental diseases](#l-7-B) shall be treated as medical assistance for which payment is made under [section 1396b(a) of this title](/usc/42/1396b.md?p=a) but only to the extent that such services are furnished for not more than a period of 30 days (whether or not consecutive) during such 12-month period.
  - (3) **Maintenance of effort—**
    - (A) **In general—** As a condition for a [State](/usc/42/1396b.md?p=w-7-D) receiving payments under [section 1396b(a) of this title](/usc/42/1396b.md?p=a) for medical assistance provided in accordance with this subsection, the [State](/usc/42/1396b.md?p=w-7-D) shall (during the period in which it so furnished such medical assistance through a [State](/usc/42/1396b.md?p=w-7-D) plan amendment under this subsection) maintain on an annual basis a level of funding expended by the [State](/usc/42/1396b.md?p=w-7-D) (and political subdivisions thereof) from non-Federal [funds](/usc/42/12854.md?p=3) for items and services ([including](/usc/42/1301.md?p=b) services described in [subparagraph (B)](#l-3-B)) furnished to [eligible individuals](#l-7-A) in outpatient and community-based settings that is not less than the level of such funding for such items and services for, at the option of the [State](/usc/42/1396b.md?p=w-7-D)—
      - (i) fiscal year 2018; or
      - (ii) the most recently ended fiscal year as of the date the [State](/usc/42/1396b.md?p=w-7-D) submits a [State](/usc/42/1396b.md?p=w-7-D) plan amendment to the [Secretary](/usc/42/1301.md?p=a-6) to provide such medical assistance in accordance with this subsection.
    - (B) **Services described—** For purposes of [subparagraph (A)](#l-3-A), services described in this subparagraph are the following:
      - (i) Outpatient and community-based substance use disorder [treatment](/usc/42/11851.md?p=11).
      - (ii) Evidence-based recovery and support services.
      - (iii) Clinically-directed therapeutic [treatment](/usc/42/11851.md?p=11) to facilitate recovery skills, relapse prevention, and emotional coping strategies.
      - (iv) Outpatient medication-assisted [treatment](/usc/42/11851.md?p=11), related therapies, and pharmacology.
      - (v) Counseling and clinical monitoring.
      - (vi) Outpatient withdrawal management and related [treatment](/usc/42/11851.md?p=11) designed to alleviate acute emotional, behavioral, cognitive, or biomedical distress resulting from, or occurring with, an [individual](#i-2)’s use of alcohol and other [drugs](/usc/42/282.md?p=j-1-A-vii).
      - (vii) Routine monitoring of medication adherence.
      - (viii) Other outpatient and community-based services for the [treatment](/usc/42/11851.md?p=11) of substance use disorders, as designated by the [Secretary](/usc/42/1301.md?p=a-6).
    - (C) **State reporting requirement—**
      - (i) **In general—** Prior to approval of a [State](/usc/42/1396b.md?p=w-7-D) plan amendment under this subsection, as a condition for a [State](/usc/42/1396b.md?p=w-7-D) receiving payments under [section 1396b(a) of this title](/usc/42/1396b.md?p=a) for medical assistance provided in accordance with this subsection, the [State](/usc/42/1396b.md?p=w-7-D) shall report to the [Secretary](/usc/42/1301.md?p=a-6), in accordance with the process established by the [Secretary](/usc/42/1301.md?p=a-6) under [clause (ii)](#l-3-C-ii), the information deemed necessary by the [Secretary](/usc/42/1301.md?p=a-6) under such clause.
      - (ii) **Process—** Not later than the date that is 8 months after October 24, 2018, the [Secretary](/usc/42/1301.md?p=a-6) shall establish a process for [States](/usc/42/1396b.md?p=w-7-D) to report to the [Secretary](/usc/42/1301.md?p=a-6), at such time and in such manner as the [Secretary](/usc/42/1301.md?p=a-6) deems appropriate, such information as the [Secretary](/usc/42/1301.md?p=a-6) deems necessary to verify a [State](/usc/42/1396b.md?p=w-7-D)’s compliance with [subparagraph (A)](#l-3-A).
    - (D) **Application of maintenance of effort requirements to certain States—** In the case of a [State](/usc/42/1396b.md?p=w-7-D) with a [State](/usc/42/1396b.md?p=w-7-D) plan amendment in effect on September 30, 2023, for the 1-year period beginning on March 9, 2024, the provisions of [subparagraph (A)](#l-3-A) shall be applied as if the amendments to such subparagraph made by the Consolidated Appropriations Act, 2024 had never been made.
  - (4) **Ensuring a continuum of services—**
    - (A) **In general—** As a condition for a [State](/usc/42/1396b.md?p=w-7-D) receiving payments under [section 1396b(a) of this title](/usc/42/1396b.md?p=a) for medical assistance provided in accordance with this subsection, the [State](/usc/42/1396b.md?p=w-7-D) shall carry out each of the requirements described in [subparagraphs (B) through (F)](#l-4-B..l-4-F).
    - (B) **Notification—** The [State](/usc/42/1396b.md?p=w-7-D) shall have in place evidence-based, substance use disorder-specific [individual](#i-2) placement criteria and utilization management approaches to ensure placement of [eligible individuals](#l-7-A) in an appropriate level of care, [including](/usc/42/1301.md?p=b) criteria and approaches to ensure that [eligible individuals](#l-7-A) receive appropriate evidence-based clinical screening prior to being furnished with items and services in an [eligible institution for mental diseases](#l-7-B), [including](/usc/42/1301.md?p=b) initial and periodic assessments to determine the appropriate level of care, length of stay, and setting for such care for each [individual](#i-2). The [State](/usc/42/1396b.md?p=w-7-D) shall notify the [Secretary](/usc/42/1301.md?p=a-6) at such time and in such form and manner as the [Secretary](/usc/42/1301.md?p=a-6) shall require of such criteria and utilization management approaches.
    - (C) **Outpatient services; inpatient and residential services—**
      - (i) **Outpatient services—** The [State](/usc/42/1396b.md?p=w-7-D) shall, at a minimum, provide medical assistance for services that could otherwise be covered under the [State](/usc/42/1396b.md?p=w-7-D) plan, consistent with each of the following outpatient levels of care:
        - (I) Early [intervention](/usc/42/1397n–12.md?p=2) for [individuals](#i-2) who, for a known reason, are at risk of developing substance-related problems and for [individuals](#i-2) for whom there is not yet sufficient information to document a diagnosable substance use disorder.
        - (II) Outpatient services for less than 9 hours per week for adults, and for less than 6 hours per week for adolescents, for recovery or motivational enhancement therapies and strategies.
        - (III) Intensive outpatient services for 9 hours or more per week for adults, and for 6 hours or more per week for adolescents, to treat multidimensional instability.
        - (IV) Partial [hospitalization](/usc/42/1301.md?p=a-7) services for 20 hours or more per week for adults and adolescents to treat multidimensional instability that does not require 24-hour care.
      - (ii) **Inpatient and residential services—** The [State](/usc/42/1396b.md?p=w-7-D) shall provide medical assistance for services that could otherwise be covered under the [State](/usc/42/1396b.md?p=w-7-D) plan, consistent with at least 2 of the following inpatient and residential levels of care:
        - (I) Clinically managed, low-intensity residential services that provide adults and adolescents with 24-hour living support and structure with trained personnel and at least 5 hours of clinical service per week per [individual](#i-2).
        - (II) Clinically managed, population-specific, high-intensity residential services that provide adults with 24-hour care with trained counselors [to stabilize](/usc/42/300gg–19a.md?p=b-2-C) multidimensional imminent danger along with less intense milieu and group [treatment](/usc/42/11851.md?p=11) for those with cognitive or other impairments unable to use full active milieu or therapeutic community.
        - (III) Clinically managed, medium-intensity residential services for adolescents, and clinically managed, high-intensity residential services for adults, that provide 24-hour care with trained counselors [to stabilize](/usc/42/300gg–19a.md?p=b-2-C) multidimensional imminent danger and preparation for outpatient [treatment](/usc/42/11851.md?p=11).
        - (IV) Medically monitored, high-intensity inpatient services for adolescents, and medically monitored, intensive inpatient services withdrawal management for adults, that provide 24-hour nursing care, make [physicians](/usc/42/1396d.md?p=e) available for significant conditions, and provide counseling services 16 hours per day.
        - (V) Medically managed, intensive inpatient services for adolescents and adults that provide 24-hour nursing care and daily [physician](/usc/42/1301.md?p=a-7) care for severe, unstable conditions.
    - (D) **Transition of care—** In order to ensure an appropriate transition for an [eligible individual](#l-7-A) from receiving care in an [eligible institution for mental diseases](#l-7-B) to receiving care at a lower level of clinical intensity within the continuum of care ([including](/usc/42/1301.md?p=b) outpatient services), the [State](/usc/42/1396b.md?p=w-7-D) shall ensure that—
      - (i) a placement in such [eligible institution for mental diseases](#l-7-B) would allow for an [eligible individual](#l-7-A)’s successful transition to the community, considering such factors as proximity to an [individual](#i-2)’s support network (such as [family members](/usc/42/1320d–9.md?p=b-1), employment, and counseling and other services near an [individual](#i-2)’s residence); and
      - (ii) all eligible institutions for mental diseases that furnish items and services to [individuals](#i-2) for which medical assistance is provided under the [State](/usc/42/1396b.md?p=w-7-D) plan—
        - (I) are able to provide care at such lower level of clinical intensity; or
        - (II) have an established relationship with another [facility](/usc/42/11049.md?p=4) or provider that is able to provide care at such lower level of clinical intensity and accepts patients receiving medical assistance under this subchapter under which the [eligible institution for mental diseases](#l-7-B) may arrange for [individuals](#i-2) to receive such care from such other [facility](/usc/42/11049.md?p=4) or provider.
    - (E) **Review process—** The [State](/usc/42/1396b.md?p=w-7-D) shall, using nationally recognized substance use disorder-specific [program](/usc/42/274l–1.md?p=4) [standards](/usc/42/1320d.md?p=7), have in place a process to review the compliance of eligible institutions for mental diseases with such [program](/usc/42/274l–1.md?p=4) [standards](/usc/42/1320d.md?p=7) specified by the [State](/usc/42/1396b.md?p=w-7-D).
    - (F) **Assessment—**
      - (i) **In general—** The [State](/usc/42/1396b.md?p=w-7-D) shall, not later than 12 months after the approval of a [State](/usc/42/1396b.md?p=w-7-D) plan amendment described in this subsection (or, in the case of a [State](/usc/42/1396b.md?p=w-7-D) that has such an amendment approved as of September 30, 2023, not later than 12 months after March 9, 2024), commence an assessment of—
        - (I) the availability of [treatment](/usc/42/11851.md?p=11) for [individuals](#i-2) enrolled under a [State](/usc/42/1396b.md?p=w-7-D) plan under this subchapter (or waiver of such plan) in each level of care described in [subparagraph (C)](#l-4-C), [including](/usc/42/1301.md?p=b) how such availability varies by region of the [State](/usc/42/1396b.md?p=w-7-D); and
        - (II) the availability of medication-assisted [treatment](/usc/42/11851.md?p=11) and medically supervised withdrawal management services for such [individuals](#i-2), [including](/usc/42/1301.md?p=b) how such availability varies by region of the [State](/usc/42/1396b.md?p=w-7-D).
      - (ii) **Required completion—** The [State](/usc/42/1396b.md?p=w-7-D) shall complete an assessment described in [clause (i)](#l-4-F-i) not later than 12 months after the date the [State](/usc/42/1396b.md?p=w-7-D) commences such assessment.
  - (5) **Application to managed care—** Payments for, and limitations to, medical assistance furnished in accordance with this subsection shall be in addition to and shall not be construed to limit or supersede the ability of [States](/usc/42/1396b.md?p=w-7-D) to make monthly capitation payments to managed care organizations for [individuals](#i-2) receiving [treatment](/usc/42/11851.md?p=11) in institutions for mental diseases in accordance with [section 438.6(e) of title 42, Code of Federal Regulations](/cfr/42/438.6.md?p=e) (or any successor regulation).
  - (6) **Other medical assistance—** The provision of medical assistance for items and services furnished to an [eligible individual](#l-7-A) who is a patient in an [eligible institution for mental diseases](#l-7-B) in accordance with the requirements of this subsection shall not prohibit Federal financial participation for medical assistance for items or services that are provided to such [eligible individual](#l-7-A) in or away from the eligible institution for mental disease during any period in which the [eligible individual](#l-7-A) is receiving items or services in accordance with this subsection.
  - (7) **Definitions—** In this subsection:
    - (A) **Eligible individual—** The term “eligible individual” means an [individual](#i-2) who—
      - (i) with respect to a [State](/usc/42/1396b.md?p=w-7-D), is enrolled for medical assistance under the [State](/usc/42/1396b.md?p=w-7-D) plan or a waiver of such plan;
      - (ii) is at least 21 years of age;
      - (iii) has not attained 65 years of age; and
      - (iv) has at least 1 substance use disorder.
    - (B) **Eligible institution for mental diseases—** The term “eligible institution for mental diseases” means an [institution for mental diseases](/usc/42/1396d.md?p=i) that—
      - (i) follows reliable, evidence-based [practices](/usc/42/17061.md?p=19); and
      - (ii) offers at least 2 forms of medication-assisted [treatment](/usc/42/11851.md?p=11) for substance use disorders on site, [including](/usc/42/1301.md?p=b), in the case of medication-assisted [treatment](/usc/42/11851.md?p=11) for opioid use disorder, at least 1 antagonist and 1 partial agonist.
    - (C) **Institution for mental diseases—** The term “[institution for mental diseases](/usc/42/1396d.md?p=i)” has the meaning given that term in [section 1396d(i) of this title](/usc/42/1396d.md?p=i).

# §1396o. Use of enrollment fees, premiums, deductions, cost sharing, and similar charges

- (a) **Imposition of certain charges under plan in case of individuals described in section 1396a(a)(10)(A) or (E)—** Subject to subsections [(g)](#g), [(i)](#i), and [(j)](#j), the [State](/usc/42/1396b.md?p=w-7-D) plan shall provide that in the case of individuals (other than, beginning October 1, 2028, specified individuals (as defined in [subsection (k)(3)](#k-3))) described in subparagraph (A) or (E)(i) of [section 1396a(a)(10) of this title](/usc/42/1396a.md?p=a-10) who are eligible under the plan—
  - (1) no enrollment fee, premium, or similar charge will be imposed under the plan (except for a premium imposed under [subsection (c)](#c));
  - (2) no deduction, cost sharing or similar charge will be imposed under the plan with respect to—
    - (A) services furnished to individuals under 18 years of age (and, at the option of the [State](/usc/42/1396b.md?p=w-7-D), individuals under 21, 20, or 19 years of age, or any reasonable [category](/usc/42/1395w–4.md?p=j-1) of individuals 18 years of age or over),
    - (B) services furnished to pregnant women, if such services relate to the pregnancy or to any other medical condition which may complicate the pregnancy, and [counseling and pharmacotherapy for cessation of tobacco use by pregnant women](/usc/42/1396d.md?p=bb-1) (as defined in [section 1396d(bb) of this title](/usc/42/1396d.md?p=bb)) and [covered outpatient drugs](/usc/42/1396r–8.md?p=k-3) (as defined in subsection (k)(2) of [section 1396r–8 of this title](/usc/42/1396r–8.md) and [including](/usc/42/1301.md?p=b) nonprescription [drugs](/usc/42/282.md?p=j-1-A-vii) described in [subsection (d)(2)](/usc/42/1396r–8.md?p=d-2) of such section) that are prescribed for purposes of promoting, and when used to promote, tobacco cessation by pregnant women in accordance with the Guideline referred to in [section 1396d(bb)(2)(A) of this title](/usc/42/1396d.md?p=bb-2-A) (or, at the option of the [State](/usc/42/1396b.md?p=w-7-D), any services furnished to pregnant women),
    - (C) services furnished to any individual who is an inpatient in a [hospital](/usc/42/1395dd.md?p=e-5), [nursing facility](/usc/42/1396r.md?p=a), [intermediate care facility for the mentally retarded](/usc/42/1396d.md?p=d), or other medical institution, if such individual is required, as a condition of receiving services in such institution under the [State](/usc/42/1396b.md?p=w-7-D) plan, to spend for costs of [medical care](/usc/42/1301.md?p=a-7) all but a minimal amount of his [income](/usc/42/292s.md?p=c-4) required for personal needs,
    - (D) emergency services (as defined by the [Secretary](/usc/42/1301.md?p=a-6)), [family](/usc/42/290ff–4.md?p=d-2) planning services and supplies described in [section 1396d(a)(4)(C) of this title](/usc/42/1396d.md),
    - (E) services furnished to an individual who is receiving [hospice care](/usc/42/1396d.md?p=o-1-A) (as defined in [section 1396d(o)](/usc/42/1396d.md?p=o) of this title),
    - (F) any in vitro diagnostic product described in [section 1396d(a)(3)(B) of this title](/usc/42/1396d.md?p=a-3-B) that is administered during any portion of the emergency period described in such section beginning on or after March 18, 2020 (and the [administration](/usc/42/1301.md?p=a-10) of such product),
    - (G) COVID–19 testing-related services for which payment may be made under the [State](/usc/42/1396b.md?p=w-7-D) plan,
    - (H) during the period beginning on March 11, 2021, and ending on the last day of the first calendar quarter that begins one year after the last day of the emergency period described in [section 1320b–5(g)(1)(B) of this title](/usc/42/1320b–5.md?p=g-1-B), a COVID–19 vaccine and the [administration](/usc/42/1301.md?p=a-10) of such vaccine (for any individual eligible for medical assistance for such vaccine (and [administration](/usc/42/1301.md?p=a-10))),
    - (I) during the period beginning on March 11, 2021, and ending on the last day of the first calendar quarter that begins one year after the last day of the emergency period described in [section 1320b–5(g)(1)(B) of this title](/usc/42/1320b–5.md?p=g-1-B), testing and [treatments](/usc/42/11851.md?p=11) for COVID–19, [including](/usc/42/1301.md?p=b) specialized equipment and therapies ([including](/usc/42/1301.md?p=b) preventive therapies), and, in the case of an individual who is diagnosed with or presumed to have COVID–19, during the period during which such individual has (or is presumed to have) COVID–19, the [treatment](/usc/42/11851.md?p=11) of a condition that may seriously complicate the [treatment](/usc/42/11851.md?p=11) of COVID–19, if otherwise covered under the [State](/usc/42/1396b.md?p=w-7-D) plan (or waiver of such plan), or
    - (J) vaccines described in [section 1396d(a)(13)(B) of this title](/usc/42/1396d.md?p=a-13-B) and the [administration](/usc/42/1301.md?p=a-10) of such vaccines; and
  - (3) any deduction, cost sharing, or similar charge imposed under the plan with respect to other such individuals or other care and services will be nominal in amount (as determined by the [Secretary](/usc/42/1301.md?p=a-6) in regulations which shall, if the definition of “nominal” under the regulations in effect on July 1, 1982 is changed, take into account the level of cash assistance provided in such [State](/usc/42/1396b.md?p=w-7-D) and such other criteria as the [Secretary](/usc/42/1301.md?p=a-6) determines to be appropriate); except that a deduction, [cost-sharing](/usc/42/18022.md?p=c-3-A), or similar charge of up to twice the nominal amount established for outpatient services may be imposed by a [State](/usc/42/1396b.md?p=w-7-D) under a waiver granted by the [Secretary](/usc/42/1301.md?p=a-6) for services received at a [hospital](/usc/42/1395dd.md?p=e-5) emergency room if the services are not emergency services (referred to in [paragraph (2)(D)](#a-2-D)) and the [State](/usc/42/1396b.md?p=w-7-D) has established to the satisfaction of the [Secretary](/usc/42/1301.md?p=a-6) that individuals eligible for services under the plan have actually available and accessible to them alternative sources of nonemergency, outpatient services.
- (b) **Imposition of certain charges under plan in case of individuals other than those described in section 1396a(a)(10)(A) or (E)—** The [State](/usc/42/1396b.md?p=w-7-D) plan shall provide that in the case of individuals other than those described in subparagraph (A) or (E) of [section 1396a(a)(10) of this title](/usc/42/1396a.md?p=a-10) who are eligible under the plan—
  - (1) there may be imposed an enrollment fee, premium, or similar charge, which (as determined in accordance with [standards](/usc/42/1320d.md?p=7) prescribed by the [Secretary](/usc/42/1301.md?p=a-6)) is related to the individual’s [income](/usc/42/292s.md?p=c-4),
  - (2) no deduction, cost sharing, or similar charge will be imposed under the plan with respect to—
    - (A) services furnished to individuals under 18 years of age (and, at the option of the [State](/usc/42/1396b.md?p=w-7-D), individuals under 21, 20, or 19 years of age, or any reasonable [category](/usc/42/1395w–4.md?p=j-1) of individuals 18 years of age or over),
    - (B) services furnished to pregnant women, if such services relate to the pregnancy or to any other medical condition which may complicate the pregnancy, and [counseling and pharmacotherapy for cessation of tobacco use by pregnant women](/usc/42/1396d.md?p=bb-1) (as defined in [section 1396d(bb) of this title](/usc/42/1396d.md?p=bb)) and [covered outpatient drugs](/usc/42/1396r–8.md?p=k-3) (as defined in subsection (k)(2) of [section 1396r–8 of this title](/usc/42/1396r–8.md) and [including](/usc/42/1301.md?p=b) nonprescription [drugs](/usc/42/282.md?p=j-1-A-vii) described in [subsection (d)(2)](/usc/42/1396r–8.md?p=d-2) of such section) that are prescribed for purposes of promoting, and when used to promote, tobacco cessation by pregnant women in accordance with the Guideline referred to in [section 1396d(bb)(2)(A) of this title](/usc/42/1396d.md?p=bb-2-A) (or, at the option of the [State](/usc/42/1396b.md?p=w-7-D), any services furnished to pregnant women),
    - (C) services furnished to any individual who is an inpatient in a [hospital](/usc/42/1395dd.md?p=e-5), [nursing facility](/usc/42/1396r.md?p=a), [intermediate care facility for the mentally retarded](/usc/42/1396d.md?p=d), or other medical institution, if such individual is required, as a condition of receiving services in such institution under the [State](/usc/42/1396b.md?p=w-7-D) plan, to spend for costs of [medical care](/usc/42/1301.md?p=a-7) all but a minimal amount of his [income](/usc/42/292s.md?p=c-4) required for personal needs,
    - (D) emergency services (as defined by the [Secretary](/usc/42/1301.md?p=a-6)), [family](/usc/42/290ff–4.md?p=d-2) planning services and supplies described in [section 1396d(a)(4)(C) of this title](/usc/42/1396d.md),
    - (E) services furnished to an individual who is receiving [hospice care](/usc/42/1396d.md?p=o-1-A) (as defined in [section 1396d(o)](/usc/42/1396d.md?p=o) of this title),
    - (F) any in vitro diagnostic product described in [section 1396d(a)(3)(B) of this title](/usc/42/1396d.md?p=a-3-B) that is administered during any portion of the emergency period described in such section beginning on or after March 18, 2020 (and the [administration](/usc/42/1301.md?p=a-10) of such product),
    - (G) COVID–19 testing-related services for which payment may be made under the [State](/usc/42/1396b.md?p=w-7-D) plan,
    - (H) during the period beginning on March 11, 2021, and ending on the last day of the first calendar quarter that begins one year after the last day of the emergency period described in [section 1320b–5(g)(1)(B) of this title](/usc/42/1320b–5.md?p=g-1-B), a COVID–19 vaccine and the [administration](/usc/42/1301.md?p=a-10) of such vaccine (for any individual eligible for medical assistance for such vaccine (and [administration](/usc/42/1301.md?p=a-10))),
    - (I) during the period beginning on March 11, 2021, and ending on the last day of the first calendar quarter that begins one year after the last day of the emergency period described in [section 1320b–5(g)(1)(B) of this title](/usc/42/1320b–5.md?p=g-1-B), testing and [treatments](/usc/42/11851.md?p=11) for COVID–19, [including](/usc/42/1301.md?p=b) specialized equipment and therapies ([including](/usc/42/1301.md?p=b) preventive therapies), and, in the case of an individual who is diagnosed with or presumed to have COVID–19, during the period during which such individual has (or is presumed to have) COVID–19, the [treatment](/usc/42/11851.md?p=11) of a condition that may seriously complicate the [treatment](/usc/42/11851.md?p=11) of COVID–19, if otherwise covered under the [State](/usc/42/1396b.md?p=w-7-D) plan (or waiver of such plan), or
    - (J) vaccines described in [section 1396d(a)(13)(B) of this title](/usc/42/1396d.md?p=a-13-B) and the [administration](/usc/42/1301.md?p=a-10) of such vaccines; and
  - (3) any deduction, cost sharing, or similar charge imposed under the plan with respect to other such individuals or other care and services will be nominal in amount (as determined by the [Secretary](/usc/42/1301.md?p=a-6) in regulations which shall, if the definition of “nominal” under the regulations in effect on July 1, 1982 is changed, take into account the level of cash assistance provided in such [State](/usc/42/1396b.md?p=w-7-D) and such other criteria as the [Secretary](/usc/42/1301.md?p=a-6) determines to be appropriate); except that a deduction, [cost-sharing](/usc/42/18022.md?p=c-3-A), or similar charge of up to twice the nominal amount established for outpatient services may be imposed by a [State](/usc/42/1396b.md?p=w-7-D) under a waiver granted by the [Secretary](/usc/42/1301.md?p=a-6) for services received at a [hospital](/usc/42/1395dd.md?p=e-5) emergency room if the services are not emergency services (referred to in [paragraph (2)(D)](#b-2-D)) and the [State](/usc/42/1396b.md?p=w-7-D) has established to the satisfaction of the [Secretary](/usc/42/1301.md?p=a-6) that individuals eligible for services under the plan have actually available and accessible to them alternative sources of nonemergency, outpatient services.
- (c) **Imposition of monthly premium; persons affected; amount; prepayment; failure to pay; use of funds from other programs—**
  - (1) The [State](/usc/42/1396b.md?p=w-7-D) plan of a [State](/usc/42/1396b.md?p=w-7-D) may at the option of the [State](/usc/42/1396b.md?p=w-7-D) provide for imposing a monthly premium (in an amount that does not exceed the limit established under [paragraph (2)](#c-2)) with respect to an individual described in subparagraph [(A)](/usc/42/1396a.md?p=l-1-A) or [(B)](/usc/42/1396a.md?p=l-1-B) of section 1396a(l)(1) of this title who is receiving medical assistance on the basis of [section 1396a(a)(10)(A)(ii)(IX) of this title](/usc/42/1396a.md?p=a-10-A-ii-IX) and whose [family](/usc/42/290ff–4.md?p=d-2) [income](/usc/42/292s.md?p=c-4) (as determined in accordance with the methodology specified in [section 1396a(l)(3)](/usc/42/1396a.md?p=l-3) of this title) equals or exceeds 150 percent of the [income](/usc/42/292s.md?p=c-4) [official poverty line](/usc/42/254c–12.md?p=1) (as defined by the [Office](/usc/42/3058f.md?p=1) of Management and Budget, and revised annually in accordance with [section 9902(2) of this title](/usc/42/9902.md?p=2)) applicable to a [family](/usc/42/290ff–4.md?p=d-2) of the size involved.
  - (2) In no case may the amount of any premium imposed under [paragraph (1)](#c-1) exceed 10 percent of the amount by which the [family](/usc/42/290ff–4.md?p=d-2) [income](/usc/42/292s.md?p=c-4) (less expenses for the care of a dependent [child](/usc/42/416.md?p=e)) of an individual exceeds 150 percent of the line described in [paragraph (1)](#c-1).
  - (3) A [State](/usc/42/1396b.md?p=w-7-D) shall not require prepayment of a premium imposed pursuant to [paragraph (1)](#c-1) and shall not terminate eligibility of an individual for medical assistance under this subchapter on the basis of failure to pay any such premium until such failure continues for a period of not less than 60 days. The [State](/usc/42/1396b.md?p=w-7-D) may waive payment of any such premium in any case where the [State](/usc/42/1396b.md?p=w-7-D) determines that requiring such payment would create an undue hardship.
  - (4) A [State](/usc/42/1396b.md?p=w-7-D) may permit [State](/usc/42/1396b.md?p=w-7-D) or local [funds](/usc/42/12854.md?p=3) available under other [programs](/usc/42/274l–1.md?p=4) to be used for payment of a premium imposed under [paragraph (1)](#c-1). Payment of a premium with such [funds](/usc/42/12854.md?p=3) shall not be counted as [income](/usc/42/292s.md?p=c-4) to the individual with respect to whom such payment is made.
- (d) **Premiums for qualified disabled and working individuals described in section 1396d(s)—** With respect to a [qualified disabled and working individual](/usc/42/1396d.md?p=s) described in [section 1396d(s) of this title](/usc/42/1396d.md?p=s) whose [income](/usc/42/292s.md?p=c-4) (as determined under [paragraph (3)](/usc/42/1396d.md?p=s-3) of that section) exceeds 150 percent of the [official poverty line](/usc/42/254c–12.md?p=1) referred to in that paragraph, the [State](/usc/42/1396b.md?p=w-7-D) plan of a [State](/usc/42/1396b.md?p=w-7-D) may provide for the charging of a premium (expressed as a percentage of the [medicare cost-sharing](/usc/42/1396d.md?p=p-3) described in [section 1396d(p)(3)(A)(i) of this title](/usc/42/1396d.md?p=p-3-A-i) provided with respect to the individual) according to a sliding scale under which such percentage increases from 0 percent to 100 percent, in reasonable increments (as determined by the [Secretary](/usc/42/1301.md?p=a-6)), as the individual’s [income](/usc/42/292s.md?p=c-4) increases from 150 percent of such [poverty line](/usc/42/1395w–114.md?p=a-3-C-ii) to 200 percent of such [poverty line](/usc/42/1395w–114.md?p=a-3-C-ii).
- (e) **Prohibition of denial of services on basis of individual’s inability to pay certain charges—** The [State](/usc/42/1396b.md?p=w-7-D) plan shall require that no provider participating under the [State](/usc/42/1396b.md?p=w-7-D) plan may deny care or services to an individual eligible for such care or services under the plan on account of such individual’s inability to pay a deduction, cost sharing, or similar charge. The requirements of this subsection shall not extinguish the liability of the individual to whom the care or services were furnished for payment of the deduction, cost sharing, or similar charge.
- (f) **Charges imposed under waiver authority of Secretary—** No deduction, cost sharing, or similar charge may be imposed under any waiver authority of the [Secretary](/usc/42/1301.md?p=a-6), except as provided in subsections [(a)(3)](#a-3) and [(b)(3)](#b-3) and [section 1396o–1](/usc/42/1396o–1.md) of this title, unless such waiver is for a [demonstration project](/usc/42/16281.md?p=d-2) which the [Secretary](/usc/42/1301.md?p=a-6) finds after public notice and opportunity for comment—
  - (1) will test a unique and previously untested use of copayments,
  - (2) is limited to a period of not more than two years,
  - (3) will provide benefits to [recipients](/usc/42/2996a.md?p=6) of medical assistance which can reasonably be expected to be equivalent to the risks to the [recipients](/usc/42/2996a.md?p=6),
  - (4) is based on a reasonable hypothesis which the demonstration is designed to test in a methodologically sound manner, [including](/usc/42/1301.md?p=b) the use of control groups of similar [recipients](/usc/42/2996a.md?p=6) of medical assistance in the area, and
  - (5) is voluntary, or makes provision for assumption of liability for preventable damage to the health of [recipients](/usc/42/2996a.md?p=6) of medical assistance resulting from involuntary participation.
- (g) **Individuals provided medical assistance under section 1396a(a)(10)(A)(ii)(XV) or (XVI)—** With respect to individuals provided medical assistance only under subclause (XV) or (XVI) of [section 1396a(a)(10)(A)(ii) of this title](/usc/42/1396a.md?p=a-10-A-ii)—
  - (1) a [State](/usc/42/1396b.md?p=w-7-D) may (in a uniform manner for individuals described in either such subclause)—
    - (A) require such individuals to pay premiums or other [cost-sharing](/usc/42/18022.md?p=c-3-A) charges set on a sliding scale based on [income](/usc/42/292s.md?p=c-4) that the [State](/usc/42/1396b.md?p=w-7-D) may determine; and
    - (B) require payment of 100 percent of such premiums for such year in the case of such an individual who has [income](/usc/42/292s.md?p=c-4) for a year that exceeds 250 percent of the [income](/usc/42/292s.md?p=c-4) [official poverty line](/usc/42/254c–12.md?p=1) (referred to in [subsection (c)(1)](#c-1)) applicable to a [family](/usc/42/290ff–4.md?p=d-2) of the size involved, except that in the case of such an individual who has [income](/usc/42/292s.md?p=c-4) for a year that does not exceed 450 percent of such [poverty line](/usc/42/1395w–114.md?p=a-3-C-ii), such requirement may only apply to the extent such premiums do not exceed 7.5 percent of such [income](/usc/42/292s.md?p=c-4); and
  - (2) such [State](/usc/42/1396b.md?p=w-7-D) shall require payment of 100 percent of such premiums for a year by such an individual whose adjusted gross [income](/usc/42/292s.md?p=c-4) (as defined in section 62 of the Internal Revenue Code of 1986) for such year exceeds $75,000, except that a [State](/usc/42/1396b.md?p=w-7-D) may choose to subsidize such premiums by using [State](/usc/42/1396b.md?p=w-7-D) [funds](/usc/42/12854.md?p=3) which may not be federally matched under this subchapter.

  In the case of any calendar year beginning after 2000, the dollar amount specified in [paragraph (2)](#g-2) shall be increased in accordance with the provisions of [section 415(i)(2)(A)(ii) of this title](/usc/42/415.md?p=i-2-A-ii).

- (h) **Indexing nominal cost sharing—** In applying this section and subsections [(c)](/usc/42/1396o–1.md?p=c) and [(e)](/usc/42/1396o–1.md?p=e) of section 1396o–1 of this title, with respect to cost sharing that is “nominal” in amount, the [Secretary](/usc/42/1301.md?p=a-6) shall increase such “nominal” amounts for each year (beginning with 2006) by the annual percentage increase in the [medical care](/usc/42/1301.md?p=a-7) component of the consumer price index for all urban consumers (U.S. [city](/usc/42/12902.md?p=11) average) as rounded up in an appropriate manner.
- (i) **State option to impose income-related premiums for families of disabled children—**
  - (1) With respect to disabled [children](/usc/42/256e.md?p=g-2) provided medical assistance under [section 1396a(a)(10)(A)(ii)(XIX) of this title](/usc/42/1396a.md?p=a-10-A-ii-XIX), subject to [paragraph (2)](#i-2), a [State](/usc/42/1396b.md?p=w-7-D) may (in a uniform manner for such [children](/usc/42/256e.md?p=g-2)) require the [families](/usc/42/12704.md?p=11) of such [children](/usc/42/256e.md?p=g-2) to pay monthly premiums set on a sliding scale based on [family](/usc/42/290ff–4.md?p=d-2) [income](/usc/42/292s.md?p=c-4).
  - (2) A premium requirement imposed under [paragraph (1)](#i-1) may only apply to the extent that—
    - (A) in the case of a disabled [child](/usc/42/416.md?p=e) described in that paragraph whose [family](/usc/42/290ff–4.md?p=d-2) [income](/usc/42/292s.md?p=c-4)—
      - (i) does not exceed 200 percent of the [poverty line](/usc/42/1395w–114.md?p=a-3-C-ii), the aggregate amount of such premium and any premium that the [parent](/usc/42/1396a.md?p=k-3) is required to pay for [family](/usc/42/290ff–4.md?p=d-2) coverage under [section 1396a(cc)(2)(A)(i) of this title](/usc/42/1396a.md?p=cc-2-A-i) and other [cost-sharing](/usc/42/18022.md?p=c-3-A) charges do not exceed 5 percent of the [family](/usc/42/290ff–4.md?p=d-2)’s [income](/usc/42/292s.md?p=c-4); and
      - (ii) exceeds 200, but does not exceed 300, percent of the [poverty line](/usc/42/1395w–114.md?p=a-3-C-ii), the aggregate amount of such premium and any premium that the [parent](/usc/42/1396a.md?p=k-3) is required to pay for [family](/usc/42/290ff–4.md?p=d-2) coverage under [section 1396a(cc)(2)(A)(i) of this title](/usc/42/1396a.md?p=cc-2-A-i) and other [cost-sharing](/usc/42/18022.md?p=c-3-A) charges do not exceed 7.5 percent of the [family](/usc/42/290ff–4.md?p=d-2)’s [income](/usc/42/292s.md?p=c-4); and
    - (B) the requirement is imposed consistent with [section 1396a(cc)(2)(A)(ii)(I) of this title](/usc/42/1396a.md?p=cc-2-A-ii-I).
  - (3) A [State](/usc/42/1396b.md?p=w-7-D) shall not require prepayment of a premium imposed pursuant to [paragraph (1)](#i-1) and shall not terminate eligibility of a [child](/usc/42/416.md?p=e) under [section 1396a(a)(10)(A)(ii)(XIX) of this title](/usc/42/1396a.md?p=a-10-A-ii-XIX) for medical assistance under this subchapter on the basis of failure to pay any such premium until such failure continues for a period of at least 60 days from the date on which the premium became past due. The [State](/usc/42/1396b.md?p=w-7-D) may waive payment of any such premium in any case where the [State](/usc/42/1396b.md?p=w-7-D) determines that requiring such payment would create an undue hardship.
- (j) **No premiums or cost sharing for Indians furnished items or services directly by Indian health programs or through referral under contract health services—**
  - (1) **No cost sharing for items or services furnished to Indians through Indian health programs—**
    - (A) **In general—** No enrollment fee, premium, or similar charge, and no deduction, copayment, cost sharing, or similar charge shall be imposed against an [Indian](/usc/42/6862.md?p=6) who is furnished an item or service directly by the [Indian](/usc/42/6862.md?p=6) Health Service, an [Indian Tribe](/usc/42/1397j.md?p=12-A), [Tribal Organization](/usc/42/629a.md?p=a-6), or Urban [Indian](/usc/42/6862.md?p=6) Organization or through referral under contract health services for which payment may be made under this subchapter.
    - (B) **No reduction in amount of payment to Indian health providers—** Payment due under this subchapter to the [Indian](/usc/42/6862.md?p=6) Health Service, an [Indian Tribe](/usc/42/1397j.md?p=12-A), [Tribal Organization](/usc/42/629a.md?p=a-6), or Urban [Indian](/usc/42/6862.md?p=6) Organization, or a [health care provider](/usc/42/300jj.md?p=3) through referral under contract health services for the furnishing of an item or service to an [Indian](/usc/42/6862.md?p=6) who is eligible for assistance under such subchapter, may not be reduced by the amount of any enrollment fee, premium, or similar charge, or any deduction, copayment, cost sharing, or similar charge that would be due from the [Indian](/usc/42/6862.md?p=6) but for the operation of [subparagraph (A)](#j-1-A).
  - (2) **Rule of construction—** Nothing in this subsection shall be construed as restricting the application of any other limitations on the imposition of premiums or cost sharing that may apply to an individual receiving medical assistance under this subchapter who is an [Indian](/usc/42/6862.md?p=6).
- (k) **Special rules for certain expansion individuals—**
  - (1) **Premiums—** Beginning October 1, 2028, the [State](#k-4) plan shall provide that in the case of a [specified individual](#k-3) (as defined in [paragraph (3)](#k-3)) who is eligible under the plan, no enrollment fee, premium, or similar charge will be imposed under the plan.
  - (2) **Required imposition of cost sharing—**
    - (A) **In general—** Subject to [subparagraph (B)](#k-2-B) and [subsection (j)](#j), in the case of a [specified individual](#k-3), the [State](#k-4) plan shall, beginning October 1, 2028, provide for the imposition of such deductions, cost sharing, or similar charges determined appropriate by the [State](#k-4) (in an amount greater than $0) with respect to certain care, items, or services furnished to such an individual, as determined by the [State](#k-4).
    - (B) **Limitations—**
      - (i) **Exclusion of certain services—** In no case may a deduction, cost sharing, or similar charge be imposed under the [State](#k-4) plan with respect to care, items, or services described in any of [subparagraphs (B) through (J)](#a-2-B..a-2-J) of subsection (a)(2), or any primary care services, mental health care services, [substance use disorder services](/usc/42/290cc–34.md?p=4), or services provided by a [Federally qualified health center](/usc/42/254c.md?p=b-2) (as defined in 1396d(l)(2)[^1] of this title), [certified community behavioral health clinic](/usc/42/1396d.md?p=jj-2) (as defined in [section 1396d(jj)(2) of this title](/usc/42/1396d.md?p=jj-2)), or [rural health clinic](/usc/42/254c.md?p=b-2) (as defined in 1396d(l)(1)[^1] of this title), furnished to a [specified individual](#k-3).
      - (ii) **Item and service limitation—**
        - (I) **In general—** Except as provided in [subclause (II)](#k-2-B-ii-II), in no case may a deduction, cost sharing, or similar charge imposed under the [State](#k-4) plan with respect to care or an item or service furnished to a [specified individual](#k-3) exceed $35.
        - (II) **Special rules for prescription drugs—** In no case may a deduction, cost sharing, or similar charge imposed under the [State](#k-4) plan with respect to a prescription [drug](/usc/42/282.md?p=j-1-A-vii) furnished to a [specified individual](#k-3) exceed the limit that would be applicable under paragraph [(2)(A)(i)](/usc/42/1396o–1.md?p=c-2-A-i) or [(2)(B)](/usc/42/1396o–1.md?p=c-2-B) of section 1396o–1(c) of this title with respect to such [drug](/usc/42/282.md?p=j-1-A-vii) and individual if such [drug](/usc/42/282.md?p=j-1-A-vii) so furnished were subject to cost sharing under such section.
      - (iii) **Maximum limit on cost sharing—** The total aggregate amount of deductions, cost sharing, or similar charges imposed under the [State](#k-4) plan for all individuals in the [family](/usc/42/290ff–4.md?p=d-2) may not exceed 5 percent of the [family](/usc/42/290ff–4.md?p=d-2) [income](/usc/42/292s.md?p=c-4) of the [family](/usc/42/290ff–4.md?p=d-2) involved, as applied on a quarterly or monthly basis (as specified by the [State](#k-4)).
    - (C) **Cases of nonpayment—** Notwithstanding [subsection (e)](#e), a [State](#k-4) may permit a provider participating under the [State](#k-4) plan to require, as a condition for the provision of care, items, or services to a [specified individual](#k-3) entitled to medical assistance under this subchapter for such care, items, or services, the payment of any deductions, cost sharing, or similar charges authorized to be imposed with respect to such care, items, or services. Nothing in this subparagraph shall be construed as preventing a provider from reducing or waiving the application of such deductions, cost sharing, or similar charges on a case-by-case basis.
  - (3) **Specified individual defined—** For purposes of this subsection, the term “specified individual” means an individual who has a [family](/usc/42/290ff–4.md?p=d-2) [income](/usc/42/292s.md?p=c-4) (as determined in accordance with [section 1396a(e)(14) of this title](/usc/42/1396a.md?p=e-14)) that exceeds the [poverty line](/usc/42/1395w–114.md?p=a-3-C-ii) (as defined in [section 1397jj(c)(5) of this title](/usc/42/1397jj.md?p=c-5)) applicable to a [family](/usc/42/290ff–4.md?p=d-2) of the size involved and—
    - (A) is enrolled under [section 1396a(a)(10)(A)(i)(VIII) of this title](/usc/42/1396a.md?p=a-10-A-i-VIII); or
    - (B) is described in such subsection and otherwise enrolled under a waiver of the [State](#k-4) plan that provides coverage that is equivalent to minimum essential coverage (as described in section 5000A(f)(1)(A) of the Internal Revenue Code of 1986 and determined in accordance with [standards](/usc/42/1320d.md?p=7) prescribed by the [Secretary](/usc/42/1301.md?p=a-6) in regulations) to all individuals described in [section 1396a(a)(10)(A)(i)(VIII) of this title](/usc/42/1396a.md?p=a-10-A-i-VIII).
  - (4) **State defined—** For purposes of this subsection, the term “State” means 1 of the 50 States or the District of Columbia.

# §1396o–1. State option for alternative premiums and cost sharing

- (a) **State flexibility—**
  - (1) **In general—** Notwithstanding sections [1396o](/usc/42/1396o.md) and [1396a(a)(10)(B)](/usc/42/1396a.md?p=a-10-B) of this title, but subject to [paragraph (2)](#a-2), a [State](/usc/42/1396b.md?p=w-7-D), at its option and through a [State](/usc/42/1396b.md?p=w-7-D) plan amendment, may impose [premiums](#a-3-A) and [cost sharing](#a-3-B) for any group of individuals (as specified by the [State](/usc/42/1396b.md?p=w-7-D)) and for any type of services (other than [drugs](/usc/42/282.md?p=j-1-A-vii) for which [cost sharing](#a-3-B) may be imposed under [subsection (c)](#c) and [non-emergency services](#e-4-A) furnished in a [hospital](/usc/42/1395dd.md?p=e-5) emergency department for which [cost sharing](#a-3-B) may be imposed under [subsection (e)](#e)), and may vary such [premiums](#a-3-A) and [cost sharing](#a-3-B) among such groups or types, consistent with the limitations established under this section. Nothing in this section shall be construed as superseding (or preventing the application of) subsection [(g)](/usc/42/1396o.md?p=g), [(i)](/usc/42/1396o.md?p=i), [(j)](/usc/42/1396o.md?p=j), or [(k)](/usc/42/1396o.md?p=k) of section 1396o of this title.
  - (2) **Exemption for individuals with family income not exceeding 100 percent of the poverty line—**
    - (A) **In general—** [Paragraph (1)](#a-1) and [subsection (d)](#d) shall not apply, and sections [1396o](/usc/42/1396o.md) and [1396a(a)(10)(B)](/usc/42/1396a.md?p=a-10-B) of this title shall continue to apply, in the case of an individual whose [family](/usc/42/290ff–4.md?p=d-2) [income](/usc/42/292s.md?p=c-4) does not exceed 100 percent of the [poverty line](#b-5) applicable to a [family](/usc/42/290ff–4.md?p=d-2) of the size involved.
    - (B) **Limit on aggregate cost sharing—** To the extent [cost sharing](#a-3-B) under subsections [(c)](#c) and [(e)](#e) or under [section 1396o](/usc/42/1396o.md) of this title is imposed against individuals described in [subparagraph (A)](#a-2-A), the limitation under [subsection (b)(1)(B)(ii)](#b-1-B-ii) on the total aggregate amount of [cost sharing](#a-3-B) shall apply to such [cost sharing](#a-3-B) for all individuals in a [family](/usc/42/290ff–4.md?p=d-2) described in [subparagraph (A)](#a-2-A) in the same manner as such limitations apply to [cost sharing](#a-3-B) and [families](/usc/42/12704.md?p=11) described in [subsection (b)(1)(B)(ii)](#b-1-B-ii).
  - (3) **Definitions—** In this section:
    - (A) **Premium—** The term “premium” [includes](/usc/42/1301.md?p=b) any enrollment fee or similar charge.
    - (B) **Cost sharing—** The term “cost sharing” [includes](/usc/42/1301.md?p=b) any deduction, copayment, or similar charge.
- (b) **Limitations on exercise of authority—**
  - (1) **Individuals with family income between 100 and 150 percent of the poverty line—** In the case of an individual whose [family](/usc/42/290ff–4.md?p=d-2) [income](/usc/42/292s.md?p=c-4) exceeds 100 percent, but does not exceed 150 percent, of the [poverty line](#b-5) applicable to a [family](/usc/42/290ff–4.md?p=d-2) of the size involved—
    - (A) no [premium](#a-3-A) may be imposed under the plan; and
    - (B) with respect to [cost sharing](#a-3-B)—
      - (i) the [cost sharing](#a-3-B) imposed under [subsection (a)](#a) with respect to any item or service may not exceed 10 percent of the cost of such item or service; and
      - (ii) the total aggregate amount of [cost sharing](#a-3-B) imposed under this section ([including](/usc/42/1301.md?p=b) any [cost sharing](#a-3-B) imposed under subsection [(c)](#c) or [(e)](#e)) for all individuals in the [family](/usc/42/290ff–4.md?p=d-2) may not exceed 5 percent of the [family](/usc/42/290ff–4.md?p=d-2) [income](/usc/42/292s.md?p=c-4) of the [family](/usc/42/290ff–4.md?p=d-2) involved, as applied on a quarterly or monthly basis (as specified by the [State](/usc/42/1396b.md?p=w-7-D)).
  - (2) **Individuals with family income above 150 percent of the poverty line—** In the case of an individual whose [family](/usc/42/290ff–4.md?p=d-2) [income](/usc/42/292s.md?p=c-4) exceeds 150 percent of the [poverty line](#b-5) applicable to a [family](/usc/42/290ff–4.md?p=d-2) of the size involved—
    - (A) the total aggregate amount of [premiums](#a-3-A) and [cost sharing](#a-3-B) imposed under this section ([including](/usc/42/1301.md?p=b) any [cost sharing](#a-3-B) imposed under subsection [(c)](#c) or [(e)](#e)) for all individuals in the [family](/usc/42/290ff–4.md?p=d-2) may not exceed 5 percent of the [family](/usc/42/290ff–4.md?p=d-2) [income](/usc/42/292s.md?p=c-4) of the [family](/usc/42/290ff–4.md?p=d-2) involved, as applied on a quarterly or monthly basis (as specified by the [State](/usc/42/1396b.md?p=w-7-D)); and
    - (B) with respect to [cost sharing](#a-3-B), the [cost sharing](#a-3-B) imposed with respect to any item or service under [subsection (a)](#a) may not exceed 20 percent of the cost of such item or service.
  - (3) **Additional limitations—**
    - (A) **Premiums—** No [premiums](#a-3-A) shall be imposed under this section with respect to the following:
      - (i) Individuals under 18 years of age that are required to be provided medical assistance under [section 1396a(a)(10)(A)(i) of this title](/usc/42/1396a.md?p=a-10-A-i), and [including](/usc/42/1301.md?p=b) individuals with respect to whom [child](/usc/42/416.md?p=e) welfare services are made available under part B of subchapter IV on the basis of being a [child](/usc/42/416.md?p=e) in foster care and individuals with respect to whom adoption or foster care assistance is made available under part E of such subchapter, without regard to age.
      - (ii) Pregnant women.
      - (iii) Any terminally ill individual who is receiving [hospice care](/usc/42/1396d.md?p=o-1-A) (as defined in [section 1396d(o)](/usc/42/1396d.md?p=o) of this title).
      - (iv) Any individual who is an inpatient in a [hospital](/usc/42/1395dd.md?p=e-5), [nursing facility](/usc/42/1396r.md?p=a), [intermediate care facility for the mentally retarded](/usc/42/1396d.md?p=d), or other medical institution, if such individual is required, as a condition of receiving services in such institution under the [State](/usc/42/1396b.md?p=w-7-D) plan, to spend for costs of [medical care](/usc/42/1301.md?p=a-7) all but a minimal amount of the individual’s [income](/usc/42/292s.md?p=c-4) required for personal needs.
      - (v) Women who are receiving medical assistance by virtue of the application of sections [1396a(a)(10)(A)(ii)(XVIII)](/usc/42/1396a.md?p=a-10-A-ii-XVIII) and [1396a(aa)](/usc/42/1396a.md?p=aa) of this title.
      - (vi) Disabled [children](/usc/42/256e.md?p=g-2) who are receiving medical assistance by virtue of the application of sections [1396a(a)(10)(A)(ii)(XIX)](/usc/42/1396a.md?p=a-10-A-ii-XIX) and [1396a(cc)](/usc/42/1396a.md?p=cc) of this title.
      - (vii) An [Indian](/usc/42/6862.md?p=6) who is furnished an item or service directly by the [Indian](/usc/42/6862.md?p=6) Health Service, an [Indian Tribe](/usc/42/1397j.md?p=12-A), [Tribal Organization](/usc/42/629a.md?p=a-6) or Urban [Indian](/usc/42/6862.md?p=6) Organization or through referral under contract health services.
    - (B) **Cost sharing—** Subject to the succeeding provisions of this section, no [cost sharing](#a-3-B) shall be imposed under [subsection (a)](#a) with respect to the following:
      - (i) Services furnished to individuals under 18 years of age that are required to be provided medical assistance under [section 1396a(a)(10)(A)(i) of this title](/usc/42/1396a.md?p=a-10-A-i), and [including](/usc/42/1301.md?p=b) services furnished to individuals with respect to whom [child](/usc/42/416.md?p=e) welfare services are made available under part B of subchapter IV on the basis of being a [child](/usc/42/416.md?p=e) in foster care or and[^1] individuals with respect to whom adoption or foster care assistance is made available under part E of such subchapter, without regard to age.
      - (ii) Preventive services (such as well baby and well [child](/usc/42/416.md?p=e) care and immunizations) provided to [children](/usc/42/256e.md?p=g-2) under 18 years of age regardless of [family](/usc/42/290ff–4.md?p=d-2) [income](/usc/42/292s.md?p=c-4).
      - (iii) Services furnished to pregnant women, if such services relate to the pregnancy or to any other medical condition which may complicate the pregnancy, and [counseling and pharmacotherapy for cessation of tobacco use by pregnant women](/usc/42/1396d.md?p=bb-1) (as defined in [section 1396d(bb) of this title](/usc/42/1396d.md?p=bb)).
      - (iv) Services furnished to a terminally ill individual who is receiving [hospice care](/usc/42/1396d.md?p=o-1-A) (as defined in [section 1396d(o)](/usc/42/1396d.md?p=o) of this title).
      - (v) Services furnished to any individual who is an inpatient in a [hospital](/usc/42/1395dd.md?p=e-5), [nursing facility](/usc/42/1396r.md?p=a), [intermediate care facility for the mentally retarded](/usc/42/1396d.md?p=d), or other medical institution, if such individual is required, as a condition of receiving services in such institution under the [State](/usc/42/1396b.md?p=w-7-D) plan, to spend for costs of [medical care](/usc/42/1301.md?p=a-7) all but a minimal amount of the individual’s [income](/usc/42/292s.md?p=c-4) required for personal needs.
      - (vi) Emergency services (as defined by the [Secretary](/usc/42/1301.md?p=a-6) for purposes of [section 1396o(a)(2)(D)](/usc/42/1396o.md?p=a-2-D) of this title).
      - (vii) [Family](/usc/42/290ff–4.md?p=d-2) planning services and supplies described in [section 1396d(a)(4)(C) of this title](/usc/42/1396d.md).
      - (viii) Services furnished to women who are receiving medical assistance by virtue of the application of sections [1396a(a)(10)(A)(ii)(XVIII)](/usc/42/1396a.md?p=a-10-A-ii-XVIII) and [1396a(aa)](/usc/42/1396a.md?p=aa) of this title.
      - (ix) Services furnished to disabled [children](/usc/42/256e.md?p=g-2) who are receiving medical assistance by virtue of the application of sections [1396a(a)(10)(A)(ii)(XIX)](/usc/42/1396a.md?p=a-10-A-ii-XIX) and [1396a(cc)](/usc/42/1396a.md?p=cc) of this title.
      - (x) Items and services furnished to an [Indian](/usc/42/6862.md?p=6) directly by the [Indian](/usc/42/6862.md?p=6) Health Service, an [Indian Tribe](/usc/42/1397j.md?p=12-A), [Tribal Organization](/usc/42/629a.md?p=a-6) or Urban [Indian](/usc/42/6862.md?p=6) Organization or through referral under contract health services.
      - (xi) Any in vitro diagnostic product described in [section 1396d(a)(3)(B) of this title](/usc/42/1396d.md?p=a-3-B) that is administered during any portion of the emergency period described in such section beginning on or after March 18, 2020 (and the [administration](/usc/42/1301.md?p=a-10) of such product), and any service described in [section 1396o(a)(2)(G)](/usc/42/1396o.md?p=a-2-G) of this title that is furnished during any such portion.
      - (xii) During the period beginning on March 11, 2021, and ending on the last day of the first calendar quarter that begins one year after the last day of the emergency period described in [section 1320b–5(g)(1)(B) of this title](/usc/42/1320b–5.md?p=g-1-B), a COVID–19 vaccine and the [administration](/usc/42/1301.md?p=a-10) of such vaccine (for any individual eligible for medical assistance for such vaccine (and [administration](/usc/42/1301.md?p=a-10))).
      - (xiii) During the period beginning on March 11, 2021, and ending on the last day of the first calendar quarter that begins one year after the last day of the emergency period described in [section 1320b–5(g)(1)(B) of this title](/usc/42/1320b–5.md?p=g-1-B), testing and [treatments](/usc/42/11851.md?p=11) for COVID–19, [including](/usc/42/1301.md?p=b) specialized equipment and therapies ([including](/usc/42/1301.md?p=b) preventive therapies), and, in the case of an individual who is diagnosed with or presumed to have COVID–19, during the period during which such individual has (or is presumed to have) COVID–19, the [treatment](/usc/42/11851.md?p=11) of a condition that may seriously complicate the [treatment](/usc/42/11851.md?p=11) of COVID–19, if otherwise covered under the [State](/usc/42/1396b.md?p=w-7-D) plan (or waiver of such plan).
      - (xiv) Vaccines described in [section 1396d(a)(13)(B) of this title](/usc/42/1396d.md?p=a-13-B) and the [administration](/usc/42/1301.md?p=a-10) of such vaccines.
    - (C) **Construction—** Nothing in this paragraph shall be construed as preventing a [State](/usc/42/1396b.md?p=w-7-D) from exempting additional classes of individuals from [premiums](#a-3-A) under this section or from exempting additional individuals or services from [cost sharing](#a-3-B) under [subsection (a)](#a).
  - (4) **Determinations of family income—** In applying this subsection, [family](/usc/42/290ff–4.md?p=d-2) [income](/usc/42/292s.md?p=c-4) shall be determined in a manner specified by the [State](/usc/42/1396b.md?p=w-7-D) for purposes of this subsection, [including](/usc/42/1301.md?p=b) the use of such disregards as the [State](/usc/42/1396b.md?p=w-7-D) may provide. [Family](/usc/42/290ff–4.md?p=d-2) [income](/usc/42/292s.md?p=c-4) shall be determined for such period and at such periodicity as the [State](/usc/42/1396b.md?p=w-7-D) may provide under this subchapter.
  - (5) **Poverty line defined—** For purposes of this section, the term “poverty line” has the meaning given such term in [section 9902(2) of this title](/usc/42/9902.md?p=2), [including](/usc/42/1301.md?p=b) any revision required by such section.
  - (6) **Construction—** Nothing in this section shall be construed—
    - (A) as preventing a [State](/usc/42/1396b.md?p=w-7-D) from further limiting the [premiums](#a-3-A) and [cost sharing](#a-3-B) imposed under this section beyond the limitations provided under this section;
    - (B) as affecting the authority of the [Secretary](/usc/42/1301.md?p=a-6) through waiver to modify limitations on [premiums](#a-3-A) and [cost sharing](#a-3-B) under this section; or
    - (C) as affecting any such waiver of requirements in effect under this subchapter before February 8, 2006, with regard to the imposition of [premiums](#a-3-A) and [cost sharing](#a-3-B).
- (c) **Special rules for cost sharing for prescription drugs—**
  - (1) **In general—** In order to encourage beneficiaries to use [drugs](/usc/42/282.md?p=j-1-A-vii) (in this subsection referred to as “preferred [drugs](/usc/42/282.md?p=j-1-A-vii)”) identified by the [State](/usc/42/1396b.md?p=w-7-D) as the most (or more) cost effective prescription [drugs](/usc/42/282.md?p=j-1-A-vii) within a class of [drugs](/usc/42/282.md?p=j-1-A-vii) (as defined by the [State](/usc/42/1396b.md?p=w-7-D)), with respect to one or more groups of beneficiaries specified by the [State](/usc/42/1396b.md?p=w-7-D), subject to [paragraph (2)](#c-2), the [State](/usc/42/1396b.md?p=w-7-D) may—
    - (A) provide [cost sharing](#a-3-B) (instead of the level of [cost sharing](#a-3-B) otherwise permitted under [section 1396o](/usc/42/1396o.md) of this title, but subject to paragraphs [(2)](#c-2) and [(3)](#c-3)) with respect to [drugs](/usc/42/282.md?p=j-1-A-vii) that are not preferred [drugs](/usc/42/282.md?p=j-1-A-vii) within a class; and
    - (B) waive or reduce the [cost sharing](#a-3-B) otherwise applicable for preferred [drugs](/usc/42/282.md?p=j-1-A-vii) within such class and shall not apply any such [cost sharing](#a-3-B) for such preferred [drugs](/usc/42/282.md?p=j-1-A-vii) for individuals for whom [cost sharing](#a-3-B) may not be imposed under [subsection (a)](#a) due to the application of [subsection (b)(3)(B)](#b-3-B).
  - (2) **Limitations—**
    - (A) **By income group—** In no case may the [cost sharing](#a-3-B) under [paragraph (1)(A)](#c-1-A) with respect to a non-preferred [drug](/usc/42/282.md?p=j-1-A-vii) exceed—
      - (i) in the case of an individual whose [family](/usc/42/290ff–4.md?p=d-2) [income](/usc/42/292s.md?p=c-4) does not exceed 150 percent of the [poverty line](#b-5) applicable to a [family](/usc/42/290ff–4.md?p=d-2) of the size involved, the amount of nominal [cost sharing](#a-3-B) (as otherwise determined under [section 1396o](/usc/42/1396o.md) of this title); or
      - (ii) in the case of an individual whose [family](/usc/42/290ff–4.md?p=d-2) [income](/usc/42/292s.md?p=c-4) exceeds 150 percent of the [poverty line](#b-5) applicable to a [family](/usc/42/290ff–4.md?p=d-2) of the size involved, 20 percent of the cost of the [drug](/usc/42/282.md?p=j-1-A-vii).
    - (B) **Limitation to nominal for exempt populations—** In the case of an individual who is not subject to [cost sharing](#a-3-B) under [subsection (a)](#a) due to the application of [paragraph (1)(B)](#c-1-B), any [cost sharing](#a-3-B) under [paragraph (1)(A)](#c-1-A) with respect to a non-preferred [drug](/usc/42/282.md?p=j-1-A-vii) may not exceed a nominal amount (as otherwise determined under [section 1396o](/usc/42/1396o.md) of this title).
    - (C) **Continued application of aggregate cap—** In addition to the limitations imposed under subparagraphs [(A)](#c-2-A) and [(B)](#c-2-B), any [cost sharing](#a-3-B) under [paragraph (1)(A)](#c-1-A) continues to be subject to the aggregate cap on [cost sharing](#a-3-B) applied under [subsection (a)(2)(B)](#a-2-B) or under paragraph [(1)](#b-1) or [(2)](#b-2) of subsection (b), as the case may be.
  - (3) **Waiver—** In carrying out [paragraph (1)](#c-1), a [State](/usc/42/1396b.md?p=w-7-D) shall provide for the application of [cost sharing](#a-3-B) levels applicable to a preferred [drug](/usc/42/282.md?p=j-1-A-vii) in the case of a [drug](/usc/42/282.md?p=j-1-A-vii) that is not a preferred [drug](/usc/42/282.md?p=j-1-A-vii) if the prescribing [physician](/usc/42/1301.md?p=a-7) determines that the preferred [drug](/usc/42/282.md?p=j-1-A-vii) for [treatment](/usc/42/11851.md?p=11) of the same condition either would not be as effective for the individual or would have adverse effects for the individual or both.
  - (4) **Exclusion authority—** Nothing in this subsection shall be construed as preventing a [State](/usc/42/1396b.md?p=w-7-D) from excluding specified [drugs](/usc/42/282.md?p=j-1-A-vii) or classes of [drugs](/usc/42/282.md?p=j-1-A-vii) from the application of [paragraph (1)](#c-1).
- (d) **Enforceability of premiums and other cost sharing—**
  - (1) **Premiums—** Notwithstanding [section 1396o(c)(3)](/usc/42/1396o.md?p=c-3) of this title and [section 1396a(a)(10)(B) of this title](/usc/42/1396a.md?p=a-10-B), a [State](/usc/42/1396b.md?p=w-7-D) may, at its option, condition the provision of medical assistance for an individual upon prepayment of a [premium](#a-3-A) authorized to be imposed under this section, or may terminate eligibility for such medical assistance on the basis of failure to pay such a [premium](#a-3-A) but shall not terminate eligibility of an individual for medical assistance under this subchapter on the basis of failure to pay any such [premium](#a-3-A) until such failure continues for a period of not less than 60 days. A [State](/usc/42/1396b.md?p=w-7-D) may apply the previous sentence for some or all groups of beneficiaries as specified by the [State](/usc/42/1396b.md?p=w-7-D) and may waive payment of any such [premium](#a-3-A) in any case where the [State](/usc/42/1396b.md?p=w-7-D) determines that requiring such payment would create an undue hardship.
  - (2) **Cost sharing—** Notwithstanding [section 1396o(e)](/usc/42/1396o.md?p=e) of this title or any other provision of law, a [State](/usc/42/1396b.md?p=w-7-D) may permit a provider participating under the [State](/usc/42/1396b.md?p=w-7-D) plan to require, as a condition for the provision of care, items, or services to an individual entitled to medical assistance under this subchapter for such care, items, or services, the payment of any [cost sharing](#a-3-B) authorized to be imposed under this section with respect to such care, items, or services. Nothing in this paragraph shall be construed as preventing a provider from reducing or waiving the application of such [cost sharing](#a-3-B) on a case-by-case basis.
- (e) **State option for permitting hospitals to impose cost sharing for non-emergency care furnished in an emergency department—**
  - (1) **In general—** Notwithstanding [section 1396o](/usc/42/1396o.md) of this title and [section 1396a(a)(1) of this title](/usc/42/1396a.md?p=a-1) or the previous provisions of this section, but subject to the limitations of [paragraph (2)](#e-2), a [State](/usc/42/1396b.md?p=w-7-D) may, by amendment to its [State](/usc/42/1396b.md?p=w-7-D) plan under this subchapter, permit a [hospital](/usc/42/1395dd.md?p=e-5) to impose [cost sharing](#a-3-B) for [non-emergency services](#e-4-A) furnished to an individual (within one or more groups of individuals specified by the [State](/usc/42/1396b.md?p=w-7-D)) in the [hospital](/usc/42/1395dd.md?p=e-5) emergency department under this subsection if the following conditions are met:
    - (A) **Access to non-emergency room provider—** The individual has actually available and accessible (as such terms are applied by the [Secretary](/usc/42/1301.md?p=a-6) under [section 1396o(b)(3)](/usc/42/1396o.md?p=b-3) of this title) an alternate [non-emergency services](#e-4-A) provider with respect to such services.
    - (B) **Notice—** The [hospital](/usc/42/1395dd.md?p=e-5) must inform the beneficiary after receiving an appropriate medical screening examination under [section 1395dd of this title](/usc/42/1395dd.md) and after a determination has been made that the individual does not have an [emergency medical condition](/usc/42/300gg–19a.md?p=b-2-A), but before providing the [non-emergency services](#e-4-A), of the following:
      - (i) The [hospital](/usc/42/1395dd.md?p=e-5) may require the payment of the [State](/usc/42/1396b.md?p=w-7-D) specified [cost sharing](#a-3-B) before the service can be provided.
      - (ii) The name and location of an alternate [non-emergency services](#e-4-A) provider (described in [subparagraph (A)](#e-1-A)) that is actually available and accessible (as described in such subparagraph).
      - (iii) The fact that such alternate provider can provide the services without the imposition of [cost sharing](#a-3-B) described in [clause (i)](#e-1-B-i).
      - (iv) The [hospital](/usc/42/1395dd.md?p=e-5) provides a referral to coordinate scheduling of this [treatment](/usc/42/11851.md?p=11).

      Nothing in this subsection shall be construed as preventing a [State](/usc/42/1396b.md?p=w-7-D) from applying (or waiving) [cost sharing](#a-3-B) otherwise permissible under this section to services described in [clause (iii)](#e-1-B-iii).

  - (2) **Limitations—**
    - (A) **Individuals with family income between 100 and 150 percent of the poverty line—** In the case of an individual described in [subsection (b)(1)](#b-1) who is not described in [subparagraph (B)](#e-2-B), the [cost sharing](#a-3-B) imposed under this subsection may not exceed twice the amount determined to be nominal under [section 1396o](/usc/42/1396o.md) of this title, subject to the percent of [income](/usc/42/292s.md?p=c-4) limitation otherwise applicable under [subsection (b)(1)(B)(ii)](#b-1-B-ii).
    - (B) **Application to exempt populations—** In the case of an individual described in [subsection (a)(2)(A)](#a-2-A) or who is not subject to [cost sharing](#a-3-B) under [subsection (b)(3)(B)](#b-3-B) with respect to [non-emergency services](#e-4-A) described in [paragraph (1)](#e-1), a [State](/usc/42/1396b.md?p=w-7-D) may impose [cost sharing](#a-3-B) under [paragraph (1)](#e-1) for care in an amount that does not exceed a nominal amount (as otherwise determined under [section 1396o](/usc/42/1396o.md) of this title) so long as no [cost sharing](#a-3-B) is imposed to receive such care through an outpatient department or other alternative [health care provider](/usc/42/300jj.md?p=3) in the [geographic area](/usc/42/11360.md?p=9) of the [hospital](/usc/42/1395dd.md?p=e-5) emergency department involved.
    - (C) **Continued application of aggregate cap; relation to other cost sharing—** In addition to the limitations imposed under subparagraphs [(A)](#e-2-A) and [(B)](#e-2-B), any [cost sharing](#a-3-B) under [paragraph (1)](#e-1) is subject to the aggregate cap on [cost sharing](#a-3-B) applied under [subsection (a)(2)(B)](#a-2-B) or under paragraph [(1)](#b-1) or [(2)](#b-2) of subsection (b), as the case may be. [Cost sharing](#a-3-B) imposed for services under this subsection shall be instead of any [cost sharing](#a-3-B) that may be imposed for such services under [subsection (a)](#a) or [section 1396o](/usc/42/1396o.md) of this title.
  - (3) **Construction—** Nothing in this section shall be construed—
    - (A) to limit a [hospital](/usc/42/1395dd.md?p=e-5)’s obligations with respect to screening and stabilizing [treatment](/usc/42/11851.md?p=11) of an [emergency medical condition](/usc/42/300gg–19a.md?p=b-2-A) under [section 1395dd of this title](/usc/42/1395dd.md); or
    - (B) to modify any obligations under either [State](/usc/42/1396b.md?p=w-7-D) or Federal [standards](/usc/42/1320d.md?p=7) relating to the application of a prudent-layperson [standard](/usc/42/1320d.md?p=7) with respect to payment or coverage of emergency services by any managed care organization.
  - (4) **Definitions—** For purposes of this subsection:
    - (A) **Non-emergency services—** The term “non-emergency services” means any care or services furnished in an emergency department of a [hospital](/usc/42/1395dd.md?p=e-5) that do not constitute an appropriate medical screening examination or stabilizing examination and [treatment](/usc/42/11851.md?p=11) required to be provided by the [hospital](/usc/42/1395dd.md?p=e-5) under [section 1395dd of this title](/usc/42/1395dd.md).
    - (B) **Alternate non-emergency services provider—** The term “alternative non-emergency services provider” means, with respect to [non-emergency services](#e-4-A) for the diagnosis or [treatment](/usc/42/11851.md?p=11) of a condition, a [health care provider](/usc/42/300jj.md?p=3), such as a [physician](/usc/42/1301.md?p=a-7)’s [office](/usc/42/3058f.md?p=1), health care clinic, [community health center](/usc/42/1786.md?p=j-4-A), [hospital](/usc/42/1395dd.md?p=e-5) outpatient department, or similar [health care provider](/usc/42/300jj.md?p=3), that can provide clinically appropriate services for the diagnosis or [treatment](/usc/42/11851.md?p=11) of a condition contemporaneously with the provision of the [non-emergency services](#e-4-A) that would be provided in an emergency department of a [hospital](/usc/42/1395dd.md?p=e-5) for the diagnosis or [treatment](/usc/42/11851.md?p=11) of a condition, and that is participating in the [program](/usc/42/274l–1.md?p=4) under this subchapter.

# §1396p. Liens, adjustments and recoveries, and transfers of assets

- (a) **Imposition of lien against property of an individual on account of medical assistance rendered to him under a State plan—**
  - (1) No lien may be imposed against the property of any individual prior to his death on account of medical assistance paid or to be paid on his behalf under the [State](/usc/42/1396b.md?p=w-7-D) plan, except—
    - (A) pursuant to the judgment of a court on account of benefits incorrectly paid on behalf of such individual, or
    - (B) in the case of the real property of an individual—
      - (i) who is an inpatient in a [nursing facility](/usc/42/1396r.md?p=a), [intermediate care facility for the mentally retarded](/usc/42/1396d.md?p=d), or other medical institution, if such individual is required, as a condition of receiving services in such institution under the [State](/usc/42/1396b.md?p=w-7-D) plan, to spend for costs of [medical care](/usc/42/1301.md?p=a-7) all but a minimal amount of his [income](/usc/42/292s.md?p=c-4) required for personal needs, and
      - (ii) with respect to whom the [State](/usc/42/1396b.md?p=w-7-D) determines, after notice and opportunity for a hearing (in accordance with procedures established by the [State](/usc/42/1396b.md?p=w-7-D)), that he cannot reasonably be expected to be discharged from the medical institution and to return home,

      except as provided in [paragraph (2)](#a-2).

  - (2) No lien may be imposed under [paragraph (1)(B)](#a-1-B) on such individual’s home if—
    - (A) the spouse of such individual,
    - (B) such individual’s [child](/usc/42/416.md?p=e) who is under age 21, or (with respect to [States](/usc/42/1396b.md?p=w-7-D) eligible to participate in the [State](/usc/42/1396b.md?p=w-7-D) [program](/usc/42/274l–1.md?p=4) established under subchapter XVI) is blind or permanently and totally disabled, or (with respect to [States](/usc/42/1396b.md?p=w-7-D) which are not eligible to participate in such [program](/usc/42/274l–1.md?p=4)) is blind or disabled as defined in [section 1382c of this title](/usc/42/1382c.md), or
    - (C) a sibling of such individual (who has an equity interest in such home and who was residing in such individual’s home for a period of at least one year immediately before the date of the individual’s admission to the medical institution),

    is lawfully residing in such home.

  - (3) Any lien imposed with respect to an individual pursuant to [paragraph (1)(B)](#a-1-B) shall dissolve upon that individual’s discharge from the medical institution and return home.
- (b) **Adjustment or recovery of medical assistance correctly paid under a State plan—**
  - (1) No adjustment or recovery of any medical assistance correctly paid on behalf of an individual under the [State](/usc/42/1396b.md?p=w-7-D) plan may be made, except that the [State](/usc/42/1396b.md?p=w-7-D) shall seek adjustment or recovery of any medical assistance correctly paid on behalf of an individual under the [State](/usc/42/1396b.md?p=w-7-D) plan in the case of the following individuals:
    - (A) In the case of an individual described in [subsection (a)(1)(B)](#a-1-B), the [State](/usc/42/1396b.md?p=w-7-D) shall seek adjustment or recovery from the individual’s [estate](#b-4) or upon sale of the property subject to a lien imposed on account of medical assistance paid on behalf of the individual.
    - (B) In the case of an individual who was 55 years of age or older when the individual received such medical assistance, the [State](/usc/42/1396b.md?p=w-7-D) shall seek adjustment or recovery from the individual’s [estate](#b-4), but only for medical assistance consisting of—
      - (i) [nursing facility services](/usc/42/1396d.md?p=f), home and community-based services, and related [hospital](/usc/42/1395dd.md?p=e-5) and prescription [drug](/usc/42/282.md?p=j-1-A-vii) services, or
      - (ii) at the option of the [State](/usc/42/1396b.md?p=w-7-D), any items or services under the [State](/usc/42/1396b.md?p=w-7-D) plan (but not [including](/usc/42/1301.md?p=b) medical assistance for [medicare cost-sharing](/usc/42/1396d.md?p=p-3) or for benefits described in [section 1396a(a)(10)(E) of this title](/usc/42/1396a.md?p=a-10-E)).
    - (C)
      - (i) In the case of an individual who has received (or is entitled to receive) benefits under a [long-term care insurance policy](#b-1-C-iii) in connection with which [assets](#h-1) or resources are disregarded in the manner described in [clause (ii)](#b-1-C-ii), except as provided in such clause, the [State](/usc/42/1396b.md?p=w-7-D) shall seek adjustment or recovery from the individual’s [estate](#b-4) on account of medical assistance paid on behalf of the individual for [nursing facility](/usc/42/1396r.md?p=a) and other [long-term care](/usc/42/1397j.md?p=14-A) services.
      - (ii) [Clause (i)](#b-1-C-i) shall not apply in the case of an individual who received medical assistance under a [State](/usc/42/1396b.md?p=w-7-D) plan of a [State](/usc/42/1396b.md?p=w-7-D) which had a [State](/usc/42/1396b.md?p=w-7-D) plan amendment approved as of May 14, 1993, and which satisfies [clause (iv)](#b-1-C-iv), or which has a [State](/usc/42/1396b.md?p=w-7-D) plan amendment that provides for a [qualified State long-term care insurance partnership](#b-1-C-iii) (as defined in [clause (iii)](#b-1-C-iii)) which provided for the disregard of any [assets](#h-1) or resources—
        - (I) to the extent that payments are made under a [long-term care insurance policy](#b-1-C-iii); or
        - (II) because an individual has received (or is entitled to receive) benefits under a [long-term care insurance policy](#b-1-C-iii).
      - (iii) For purposes of this paragraph, the term “qualified State long-term care insurance partnership” means an approved [State](/usc/42/1396b.md?p=w-7-D) plan amendment under this subchapter that provides for the disregard of any [assets](#h-1) or resources in an amount equal to the insurance benefit payments that are made to or on behalf of an individual who is a beneficiary under a long-term care insurance policy if the following requirements are met:
        - (I) The policy covers an insured who was a resident of such [State](/usc/42/1396b.md?p=w-7-D) when coverage first became effective under the policy.
        - (II) The policy is a qualified [long-term care insurance policy](#b-1-C-iii) (as defined in section 7702B(b) of the Internal Revenue Code of 1986) issued not earlier than the effective date of the [State](/usc/42/1396b.md?p=w-7-D) plan amendment.
        - (III) The policy meets the model regulations and the requirements of the model Act specified in [paragraph (5)](#b-5).
        - (IV) If the policy is sold to an individual who—
          - (aa) has not attained age 61 as of the date of purchase, the policy provides compound annual inflation protection;
          - (bb) has attained age 61 but has not attained age 76 as of such date, the policy provides some level of inflation protection; and
          - (cc) has attained age 76 as of such date, the policy may (but is not required to) provide some level of inflation protection.
        - (V) The [State](/usc/42/1396b.md?p=w-7-D) [Medicaid](/usc/42/1396b.md?p=w-3-E-iii-III-aa) [agency](/usc/42/1397n–12.md?p=1) under [section 1396a(a)(5) of this title](/usc/42/1396a.md?p=a-5) provides information and technical assistance to the [State](/usc/42/1396b.md?p=w-7-D) insurance department on the insurance department’s role of assuring that any individual who sells a [long-term care insurance policy](#b-1-C-iii) under the partnership receives [training](/usc/42/285e–2.md?p=b-2) and demonstrates evidence of an understanding of such policies and how they relate to other public and private coverage of [long-term care](/usc/42/1397j.md?p=14-A).
        - (VI) The issuer of the policy provides regular reports to the [Secretary](/usc/42/1301.md?p=a-6), in accordance with regulations of the [Secretary](/usc/42/1301.md?p=a-6), that include notification regarding when benefits provided under the policy have been paid and the amount of such benefits paid, notification regarding when the policy otherwise terminates, and such other information as the [Secretary](/usc/42/1301.md?p=a-6) determines may be appropriate to the [administration](/usc/42/1301.md?p=a-10) of such partnerships.
        - (VII) The [State](/usc/42/1396b.md?p=w-7-D) does not impose any requirement affecting the terms or benefits of such a policy unless the [State](/usc/42/1396b.md?p=w-7-D) imposes such requirement on [long-term care insurance policies](#b-1-C-iii) without regard to whether the policy is covered under the partnership or is offered in connection with such a partnership.

        In the case of a long-term care insurance policy which is exchanged for another such policy, [subclause (I)](#b-1-C-iii-I) shall be applied based on the coverage of the first such policy that was exchanged. For purposes of this clause and [paragraph (5)](#b-5), the term “long-term care insurance policy” [includes](/usc/42/1301.md?p=b) a certificate issued under a group insurance contract.

      - (iv) With respect to a [State](/usc/42/1396b.md?p=w-7-D) which had a [State](/usc/42/1396b.md?p=w-7-D) plan amendment approved as of May 14, 1993, such a [State](/usc/42/1396b.md?p=w-7-D) satisfies this clause for purposes of [clause (ii)](#b-1-C-ii) if the [Secretary](/usc/42/1301.md?p=a-6) determines that the [State](/usc/42/1396b.md?p=w-7-D) plan amendment provides for consumer protection [standards](/usc/42/1320d.md?p=7) which are no less stringent than the consumer protection [standards](/usc/42/1320d.md?p=7) which applied under such [State](/usc/42/1396b.md?p=w-7-D) plan amendment as of December 31, 2005.
      - (v) The regulations of the [Secretary](/usc/42/1301.md?p=a-6) required under [clause (iii)(VI)](#b-1-C-iii-VI) shall be promulgated after consultation with the National Association of Insurance [Commissioners](/usc/42/12302.md?p=1), issuers of [long-term care insurance policies](#b-1-C-iii), [States](/usc/42/1396b.md?p=w-7-D) with experience with [long-term care](/usc/42/1397j.md?p=14-A) insurance partnership plans, other [States](/usc/42/1396b.md?p=w-7-D), and [representatives](/usc/42/3058f.md?p=5) of consumers of [long-term care insurance policies](#b-1-C-iii), and shall specify the type and format of the data and information to be reported and the frequency with which such reports are to be made. The [Secretary](/usc/42/1301.md?p=a-6), as appropriate, shall provide copies of the reports provided in accordance with that clause to the [State](/usc/42/1396b.md?p=w-7-D) involved.
      - (vi) The [Secretary](/usc/42/1301.md?p=a-6), in consultation with other appropriate Federal [agencies](/usc/42/1397n–12.md?p=1), issuers of [long-term care](/usc/42/1397j.md?p=14-A) insurance, the National Association of Insurance [Commissioners](/usc/42/12302.md?p=1), [State](/usc/42/1396b.md?p=w-7-D) insurance [commissioners](/usc/42/12302.md?p=1), [States](/usc/42/1396b.md?p=w-7-D) with experience with [long-term care](/usc/42/1397j.md?p=14-A) insurance partnership plans, other [States](/usc/42/1396b.md?p=w-7-D), and [representatives](/usc/42/3058f.md?p=5) of consumers of [long-term care insurance policies](#b-1-C-iii), shall develop recommendations for Congress to authorize and [fund](/usc/42/12854.md?p=3) a uniform minimum data set to be reported electronically by all issuers of [long-term care insurance policies](#b-1-C-iii) under [qualified State long-term care insurance partnerships](#b-1-C-iii) to a secure, centralized electronic query and report-generating mechanism that the [State](/usc/42/1396b.md?p=w-7-D), the [Secretary](/usc/42/1301.md?p=a-6), and other Federal [agencies](/usc/42/1397n–12.md?p=1) can access.
  - (2) Any adjustment or recovery under [paragraph (1)](#b-1) may be made only after the death of the individual’s surviving spouse, if any, and only at a time—
    - (A) when he has no surviving [child](/usc/42/416.md?p=e) who is under age 21, or (with respect to [States](/usc/42/1396b.md?p=w-7-D) eligible to participate in the [State](/usc/42/1396b.md?p=w-7-D) [program](/usc/42/274l–1.md?p=4) established under subchapter XVI) is blind or permanently and totally disabled, or (with respect to [States](/usc/42/1396b.md?p=w-7-D) which are not eligible to participate in such [program](/usc/42/274l–1.md?p=4)) is blind or disabled as defined in [section 1382c of this title](/usc/42/1382c.md); and
    - (B) in the case of a lien on an individual’s home under [subsection (a)(1)(B)](#a-1-B), when—
      - (i) no sibling of the individual (who was residing in the individual’s home for a period of at least one year immediately before the date of the individual’s admission to the medical institution), and
      - (ii) no son or daughter of the individual (who was residing in the individual’s home for a period of at least two years immediately before the date of the individual’s admission to the medical institution, and who establishes to the satisfaction of the [State](/usc/42/1396b.md?p=w-7-D) that he or she provided care to such individual which permitted such individual to reside at home rather than in an institution),

      is lawfully residing in such home who has lawfully resided in such home on a continuous basis since the date of the individual’s admission to the medical institution.

  - (3)
    - (A) The [State agency](/usc/42/1320a–7a.md?p=i-1) shall establish procedures (in accordance with [standards](/usc/42/1320d.md?p=7) specified by the [Secretary](/usc/42/1301.md?p=a-6)) under which the [agency](/usc/42/1397n–12.md?p=1) shall waive the application of this subsection (other than [paragraph (1)(C)](#b-1-C)) if such application would work an undue hardship as determined on the basis of criteria established by the [Secretary](/usc/42/1301.md?p=a-6).
    - (B) The [standards](/usc/42/1320d.md?p=7) specified by the [Secretary](/usc/42/1301.md?p=a-6) under [subparagraph (A)](#b-3-A) shall require that the procedures established by the [State agency](/usc/42/1320a–7a.md?p=i-1) under [subparagraph (A)](#b-3-A) exempt [income](/usc/42/292s.md?p=c-4), resources, and property that are exempt from the application of this subsection as of April 1, 2003, under manual instructions issued to carry out this subsection (as in effect on such date) because of the Federal responsibility for [Indian Tribes](/usc/42/1397j.md?p=12-A) and Alaska Native Villages. Nothing in this subparagraph shall be construed as preventing the [Secretary](/usc/42/1301.md?p=a-6) from providing additional [estate](#b-4) recovery exemptions under this subchapter for [Indians](/usc/42/6862.md?p=6).
  - (4) For purposes of this subsection, the term “estate”, with respect to a deceased individual—
    - (A) shall include all real and personal property and other [assets](#h-1) included within the individual’s [estate](#b-4), as defined for purposes of [State](/usc/42/1396b.md?p=w-7-D) probate law; and
    - (B) may include, at the option of the [State](/usc/42/1396b.md?p=w-7-D) (and shall include, in the case of an individual to whom [paragraph (1)(C)(i)](#b-1-C-i) applies), any other real and personal property and other [assets](#h-1) in which the individual had any legal title or interest at the time of death (to the extent of such interest), [including](/usc/42/1301.md?p=b) such [assets](#h-1) conveyed to a survivor, heir, or assign of the deceased individual through joint tenancy, tenancy in common, survivorship, life [estate](#b-4), living [trust](#d-6), or other arrangement.
  - (5)
    - (A) For purposes of clause (iii)(III), the [model regulations](#b-5-B-i) and the requirements of the [model Act](#b-5-B-i) specified in this paragraph are:
      - (i) In the case of the [model regulation](#b-5-B-i), the following requirements:
        - (I) Section 6A (relating to guaranteed renewal or noncancellability), other than [paragraph (5)](#b-5) thereof, and the requirements of section 6B of the [model Act](#b-5-B-i) relating to such section 6A.
        - (II) Section 6B (relating to prohibitions on limitations and exclusions) other than paragraph (7) thereof.
        - (III) Section 6C (relating to extension of benefits).
        - (IV) Section 6D (relating to continuation or conversion of coverage).
        - (V) Section 6E (relating to discontinuance and replacement of policies).
        - (VI) Section 7 (relating to unintentional lapse).
        - (VII) Section 8 (relating to disclosure), other than sections 8F, 8G, 8H, and 8I thereof.
        - (VIII) Section 9 (relating to required disclosure of rating [practices](/usc/42/17061.md?p=19) to consumer).
        - (IX) Section 11 (relating to prohibitions against post-[claims](/usc/42/1320a–7a.md?p=i-2) underwriting).
        - (X) Section 12 (relating to minimum [standards](/usc/42/1320d.md?p=7)).
        - (XI) Section 14 (relating to application forms and replacement coverage).
        - (XII) Section 15 (relating to reporting requirements).
        - (XIII) Section 22 (relating to filing requirements for marketing).
        - (XIV) Section 23 (relating to [standards](/usc/42/1320d.md?p=7) for marketing), [including](/usc/42/1301.md?p=b) inaccurate completion of medical histories, other than paragraphs (1), (6), and (9) of section 23C.
        - (XV) Section 24 (relating to suitability).
        - (XVI) Section 25 (relating to prohibition against preexisting conditions and probationary periods in replacement policies or certificates).
        - (XVII) The provisions of [section 26](/usc/42/26.md) relating to contingent nonforfeiture benefits, if the policyholder declines the offer of a nonforfeiture provision described in [paragraph (4)](#b-4).
        - (XVIII) Section 29 (relating to [standard](/usc/42/1320d.md?p=7) format outline of coverage).
        - (XIX) Section 30 (relating to requirement to deliver shopper’s guide).
      - (ii) In the case of the [model Act](#b-5-B-i), the following:
        - (I) Section 6C (relating to preexisting conditions).
        - (II) Section 6D (relating to prior [hospitalization](/usc/42/1301.md?p=a-7)).
        - (III) The provisions of section 8 relating to contingent nonforfeiture benefits.
        - (IV) Section 6F (relating to right to return).
        - (V) Section 6G (relating to outline of coverage).
        - (VI) Section 6H (relating to requirements for certificates under group plans).
        - (VII) Section 6J (relating to policy summary).
        - (VIII) Section 6K (relating to monthly reports on accelerated death benefits).
        - (IX) Section 7 (relating to incontestability period).
    - (B) For purposes of this paragraph and [paragraph (1)(C)](#b-1-C)—
      - (i) the terms “model regulation” and “model Act” mean the [long-term care](/usc/42/1397j.md?p=14-A) insurance model regulation, and the [long-term care](/usc/42/1397j.md?p=14-A) insurance model Act, respectively, promulgated by the National Association of Insurance [Commissioners](/usc/42/12302.md?p=1) (as adopted as of October 2000);
      - (ii) any provision of the [model regulation](#b-5-B-i) or [model Act](#b-5-B-i) listed under [subparagraph (A)](#b-5-A) shall be treated as [including](/usc/42/1301.md?p=b) any other provision of such regulation or Act necessary to implement the provision; and
      - (iii) with respect to a long-term care insurance policy issued in a [State](/usc/42/1396b.md?p=w-7-D), the policy shall be deemed to meet applicable requirements of the [model regulation](#b-5-B-i) or the [model Act](#b-5-B-i) if the [State](/usc/42/1396b.md?p=w-7-D) plan amendment under [paragraph (1)(C)(iii)](#b-1-C-iii) provides that the [State](/usc/42/1396b.md?p=w-7-D) insurance [commissioner](/usc/42/12302.md?p=1) for the [State](/usc/42/1396b.md?p=w-7-D) certifies (in a manner satisfactory to the [Secretary](/usc/42/1301.md?p=a-6)) that the policy meets such requirements.
    - (C) Not later than 12 months after the National Association of Insurance [Commissioners](/usc/42/12302.md?p=1) issues a revision, update, or other [modification](/usc/42/7501.md?p=4) of a [model regulation](#b-5-B-i) or [model Act](#b-5-B-i) provision specified in [subparagraph (A)](#b-5-A), or of any provision of such regulation or Act that is substantively related to a provision specified in such subparagraph, the [Secretary](/usc/42/1301.md?p=a-6) shall review the changes made to the provision, determine whether incorporating such changes into the corresponding provision specified in such subparagraph would improve qualified State long-term care insurance partnerships, and if so, shall incorporate the changes into such provision.
- (c) **Taking into account certain transfers of assets—**
  - (1)
    - (A) In order to meet the requirements of this subsection for purposes of [section 1396a(a)(18) of this title](/usc/42/1396a.md?p=a-18), the [State](/usc/42/1396b.md?p=w-7-D) plan must provide that if an [institutionalized individual](/usc/42/1382b.md?p=c-1-F-ii) or the spouse of such an individual (or, at the option of a [State](/usc/42/1396b.md?p=w-7-D), a [noninstitutionalized individual](#h-4) or the spouse of such an individual) disposes of [assets](#c-1-G) for less than fair market value on or after the look-back date specified in [subparagraph (B)(i)](#c-1-B-i), the individual is ineligible for medical assistance for services described in [subparagraph (C)(i)](#c-1-C-i) (or, in the case of a [noninstitutionalized individual](#h-4), for the services described in [subparagraph (C)(ii)](#c-1-C-ii)) during the period beginning on the date specified in [subparagraph (D)](#c-1-D) and equal to the number of months specified in [subparagraph (E)](#c-1-E).
    - (B)
      - (i) The look-back date specified in this subparagraph is a date that is 36 months (or, in the case of payments from a [trust](#d-6) or portions of a [trust](#d-6) that are treated as [assets](#c-1-G) disposed of by the individual pursuant to paragraph [(3)(A)(iii)](#d-3-A-iii) or [(3)(B)(ii)](#d-3-B-ii) of subsection (d) or in the case of any other [disposal](/usc/42/2021b.md?p=7) of [assets](#c-1-G) made on or after February 8, 2006, 60 months) before the date specified in [clause (ii)](#c-1-B-ii).
      - (ii) The date specified in this clause, with respect to—
        - (I) an [institutionalized individual](/usc/42/1382b.md?p=c-1-F-ii) is the first date as of which the individual both is an [institutionalized individual](/usc/42/1382b.md?p=c-1-F-ii) and has applied for medical assistance under the [State](/usc/42/1396b.md?p=w-7-D) plan, or
        - (II) a [noninstitutionalized individual](#h-4) is the date on which the individual applies for medical assistance under the [State](/usc/42/1396b.md?p=w-7-D) plan or, if later, the date on which the individual disposes of [assets](#c-1-G) for less than fair market value.
    - (C)
      - (i) The services described in this subparagraph with respect to an [institutionalized individual](/usc/42/1382b.md?p=c-1-F-ii) are the following:
        - (I) [Nursing facility services](/usc/42/1396d.md?p=f).
        - (II) A level of care in any institution equivalent to that of [nursing facility services](/usc/42/1396d.md?p=f).
        - (III) Home or community-based services furnished under a waiver granted under subsection (c) or (d) of [section 1396n of this title](/usc/42/1396n.md).
      - (ii) The services described in this subparagraph with respect to a [noninstitutionalized individual](#h-4) are services (not [including](/usc/42/1301.md?p=b) any services described in [clause (i)](#c-1-C-i)) that are described in paragraph (7), (22), or (24) of [section 1396d(a) of this title](/usc/42/1396d.md?p=a), and, at the option of a [State](/usc/42/1396b.md?p=w-7-D), other [long-term care](/usc/42/1397j.md?p=14-A) services for which medical assistance is otherwise available under the [State](/usc/42/1396b.md?p=w-7-D) plan to individuals requiring [long-term care](/usc/42/1397j.md?p=14-A).
    - (D)
      - (i) In the case of a transfer of asset made before February 8, 2006, the date specified in this subparagraph is the first day of the first month during or after which [assets](#c-1-G) have been transferred for less than fair market value and which does not occur in any other periods of ineligibility under this subsection.
      - (ii) In the case of a transfer of asset made on or after February 8, 2006, the date specified in this subparagraph is the first day of a month during or after which [assets](#c-1-G) have been transferred for less than fair market value, or the date on which the individual is eligible for medical assistance under the [State](/usc/42/1396b.md?p=w-7-D) plan and would otherwise be receiving institutional level care described in [subparagraph (C)](#c-1-C) based on an approved application for such care but for the application of the penalty period, whichever is later, and which does not occur during any other period of ineligibility under this subsection.
    - (E)
      - (i) With respect to an [institutionalized individual](/usc/42/1382b.md?p=c-1-F-ii), the number of months of ineligibility under this subparagraph for an individual shall be equal to—
        - (I) the total, cumulative uncompensated value of all [assets](#c-1-G) transferred by the individual (or individual’s spouse) on or after the look-back date specified in [subparagraph (B)(i)](#c-1-B-i), divided by
        - (II) the average monthly cost to a private patient of [nursing facility services](/usc/42/1396d.md?p=f) in the [State](/usc/42/1396b.md?p=w-7-D) (or, at the option of the [State](/usc/42/1396b.md?p=w-7-D), in the community in which the individual is institutionalized) at the time of application.
      - (ii) With respect to a [noninstitutionalized individual](#h-4), the number of months of ineligibility under this subparagraph for an individual shall not be greater than a number equal to—
        - (I) the total, cumulative uncompensated value of all [assets](#c-1-G) transferred by the individual (or individual’s spouse) on or after the look-back date specified in [subparagraph (B)(i)](#c-1-B-i), divided by
        - (II) the average monthly cost to a private patient of [nursing facility services](/usc/42/1396d.md?p=f) in the [State](/usc/42/1396b.md?p=w-7-D) (or, at the option of the [State](/usc/42/1396b.md?p=w-7-D), in the community in which the individual is institutionalized) at the time of application.
      - (iii) The number of months of ineligibility otherwise determined under clause [(i)](#c-1-E-i) or [(ii)](#c-1-E-ii) with respect to the [disposal](/usc/42/2021b.md?p=7) of an asset shall be reduced—
        - (I) in the case of periods of ineligibility determined under [clause (i)](#c-1-E-i), by the number of months of ineligibility applicable to the individual under [clause (ii)](#c-1-E-ii) as a result of such [disposal](/usc/42/2021b.md?p=7), and
        - (II) in the case of periods of ineligibility determined under [clause (ii)](#c-1-E-ii), by the number of months of ineligibility applicable to the individual under [clause (i)](#c-1-E-i) as a result of such [disposal](/usc/42/2021b.md?p=7).
      - (iv) A [State](/usc/42/1396b.md?p=w-7-D) shall not round down, or otherwise disregard any fractional period of ineligibility determined under clause [(i)](#c-1-E-i) or [(ii)](#c-1-E-ii) with respect to the [disposal](/usc/42/2021b.md?p=7) of [assets](#c-1-G).
    - (F) For purposes of this paragraph, the purchase of an annuity shall be treated as the [disposal](/usc/42/2021b.md?p=7) of an asset for less than fair market value unless—
      - (i) the [State](/usc/42/1396b.md?p=w-7-D) is named as the remainder beneficiary in the first position for at least the total amount of medical assistance paid on behalf of the [institutionalized individual](/usc/42/1382b.md?p=c-1-F-ii) under this subchapter; or
      - (ii) the [State](/usc/42/1396b.md?p=w-7-D) is named as such a beneficiary in the second position after the community spouse or minor or disabled [child](/usc/42/416.md?p=e) and is named in the first position if such spouse or a [representative](/usc/42/3058f.md?p=5) of such [child](/usc/42/416.md?p=e) disposes of any such remainder for less than fair market value.
    - (G) For purposes of this paragraph with respect to a transfer of assets, the term “assets” [includes](/usc/42/1301.md?p=b) an annuity purchased by or on behalf of an annuitant who has applied for medical assistance with respect to [nursing facility services](/usc/42/1396d.md?p=f) or other [long-term care](/usc/42/1397j.md?p=14-A) services under this subchapter unless—
      - (i) the annuity is—
        - (I) an annuity described in subsection [(b)](/usc/42/408.md?p=b) or [(q)](/usc/42/408.md) of section 408 of the Internal Revenue Code of 1986; or
        - (II) purchased with proceeds from—
          - (aa) an account or [trust](#d-6) described in subsection [(a)](/usc/42/408.md?p=a), [(c)](/usc/42/408.md?p=c), or [(p)](/usc/42/408.md) of section 408 of such Code;
          - (bb) a simplified [employee](/usc/42/1320a–7h.md?p=e-7) pension (within the meaning of [section 408(k)](/usc/42/408.md) of such Code); or
          - (cc) a Roth IRA described in section 408A of such Code; or
      - (ii) the annuity—
        - (I) is irrevocable and nonassignable;
        - (II) is actuarially sound (as determined in accordance with actuarial publications of the [Office](/usc/42/3058f.md?p=1) of the Chief Actuary of the [Social](/usc/42/1397j.md?p=20) Security [Administration](/usc/42/1301.md?p=a-10)); and
        - (III) provides for payments in equal amounts during the term of the annuity, with no deferral and no balloon payments made.
    - (H) Notwithstanding the preceding provisions of this paragraph, in the case of an individual (or individual’s spouse) who makes multiple fractional transfers of [assets](#c-1-G) in more than 1 month for less than fair market value on or after the applicable look-back date specified in [subparagraph (B)](#c-1-B), a [State](/usc/42/1396b.md?p=w-7-D) may determine the period of ineligibility applicable to such individual under this paragraph by—
      - (i) treating the total, cumulative uncompensated value of all [assets](#c-1-G) transferred by the individual (or individual’s spouse) during all months on or after the look-back date specified in [subparagraph (B)](#c-1-B) as 1 transfer for purposes of clause [(i)](#c-1-H-i) or [(ii)](#c-1-H-ii) (as the case may be) of [subparagraph (E)](#c-1-E); and
      - (ii) beginning such period on the earliest date which would apply under [subparagraph (D)](#c-1-D) to any of such transfers.
    - (I) For purposes of this paragraph with respect to a transfer of [assets](#c-1-G), the term “[assets](#c-1-G)” [includes](/usc/42/1301.md?p=b) [funds](/usc/42/12854.md?p=3) used to purchase a promissory note, loan, or mortgage unless such note, loan, or mortgage—
      - (i) has a repayment term that is actuarially sound (as determined in accordance with actuarial publications of the [Office](/usc/42/3058f.md?p=1) of the Chief Actuary of the [Social](/usc/42/1397j.md?p=20) Security [Administration](/usc/42/1301.md?p=a-10));
      - (ii) provides for payments to be made in equal amounts during the term of the loan, with no deferral and no balloon payments made; and
      - (iii) prohibits the cancellation of the balance upon the death of the lender.

      In the case of a promissory note, loan, or mortgage that does not satisfy the requirements of [clauses (i) through (iii)](#c-1-I-i..c-1-I-iii), the value of such note, loan, or mortgage shall be the outstanding balance due as of the date of the individual’s application for medical assistance for services described in [subparagraph (C)](#c-1-C).

    - (J) For purposes of this paragraph with respect to a transfer of [assets](#c-1-G), the term “[assets](#c-1-G)” [includes](/usc/42/1301.md?p=b) the purchase of a life estate interest in another individual’s home unless the purchaser resides in the home for a period of at least 1 year after the date of the purchase.
  - (2) An individual shall not be ineligible for medical assistance by reason of [paragraph (1)](#c-1) to the extent that—
    - (A) the [assets](#h-1) transferred were a home and title to the home was transferred to—
      - (i) the spouse of such individual;
      - (ii) a [child](/usc/42/416.md?p=e) of such individual who (I) is under age 21, or (II) (with respect to [States](/usc/42/1396b.md?p=w-7-D) eligible to participate in the [State](/usc/42/1396b.md?p=w-7-D) [program](/usc/42/274l–1.md?p=4) established under subchapter XVI) is blind or permanently and totally disabled, or (with respect to [States](/usc/42/1396b.md?p=w-7-D) which are not eligible to participate in such [program](/usc/42/274l–1.md?p=4)) is blind or disabled as defined in [section 1382c of this title](/usc/42/1382c.md);
      - (iii) a sibling of such individual who has an equity interest in such home and who was residing in such individual’s home for a period of at least one year immediately before the date the individual becomes an [institutionalized individual](/usc/42/1382b.md?p=c-1-F-ii); or
      - (iv) a son or daughter of such individual (other than a [child](/usc/42/416.md?p=e) described in [clause (ii)](#c-2-A-ii)) who was residing in such individual’s home for a period of at least two years immediately before the date the individual becomes an [institutionalized individual](/usc/42/1382b.md?p=c-1-F-ii), and who (as determined by the [State](/usc/42/1396b.md?p=w-7-D)) provided care to such individual which permitted such individual to reside at home rather than in such an institution or [facility](/usc/42/11049.md?p=4);
    - (B) the [assets](#h-1)—
      - (i) were transferred to the individual’s spouse or to another for the sole benefit of the individual’s spouse,
      - (ii) were transferred from the individual’s spouse to another for the sole benefit of the individual’s spouse,
      - (iii) were transferred to, or to a [trust](#d-6) ([including](/usc/42/1301.md?p=b) a [trust](#d-6) described in [subsection (d)(4)](#d-4)) established solely for the benefit of, the individual’s [child](/usc/42/416.md?p=e) described in subparagraph (A)(ii)(II), or
      - (iv) were transferred to a [trust](#d-6) ([including](/usc/42/1301.md?p=b) a [trust](#d-6) described in [subsection (d)(4)](#d-4)) established solely for the benefit of an individual under 65 years of age who is disabled (as defined in [section 1382c(a)(3) of this title](/usc/42/1382c.md?p=a-3));
    - (C) a satisfactory showing is made to the [State](/usc/42/1396b.md?p=w-7-D) (in accordance with regulations promulgated by the [Secretary](/usc/42/1301.md?p=a-6)) that (i) the individual intended to dispose of the [assets](#h-1) either at fair market value, or for other valuable consideration, (ii) the [assets](#h-1) were transferred exclusively for a purpose other than to qualify for medical assistance, or (iii) all [assets](#h-1) transferred for less than fair market value have been returned to the individual; or
    - (D) the [State](/usc/42/1396b.md?p=w-7-D) determines, under procedures established by the [State](/usc/42/1396b.md?p=w-7-D) (in accordance with [standards](/usc/42/1320d.md?p=7) specified by the [Secretary](/usc/42/1301.md?p=a-6)), that the denial of eligibility would work an undue hardship as determined on the basis of criteria established by the [Secretary](/usc/42/1301.md?p=a-6).

    The procedures established under [subparagraph (D)](#c-2-D) shall permit the [facility](/usc/42/11049.md?p=4) in which the [institutionalized individual](/usc/42/1382b.md?p=c-1-F-ii) is residing to file an undue hardship waiver application on behalf of the individual with the consent of the individual or the personal [representative](/usc/42/3058f.md?p=5) of the individual. While an application for an undue hardship waiver is pending under [subparagraph (D)](#c-2-D) in the case of an individual who is a resident of a [nursing facility](/usc/42/1396r.md?p=a), if the application meets such criteria as the [Secretary](/usc/42/1301.md?p=a-6) specifies, the [State](/usc/42/1396b.md?p=w-7-D) may provide for payments for [nursing facility services](/usc/42/1396d.md?p=f) in order to hold the bed for the individual at the [facility](/usc/42/11049.md?p=4), but not in excess of payments for 30 days.

  - (3) For purposes of this subsection, in the case of an asset held by an individual in common with another [person](/usc/42/1301.md?p=a-3) or [persons](/usc/42/1301.md?p=a-3) in a joint tenancy, tenancy in common, or similar arrangement, the asset (or the affected portion of such asset) shall be considered to be transferred by such individual when any action is taken, either by such individual or by any other [person](/usc/42/1301.md?p=a-3), that reduces or eliminates such individual’s ownership or control of such asset.
  - (4) A [State](/usc/42/1396b.md?p=w-7-D) ([including](/usc/42/1301.md?p=b) a [State](/usc/42/1396b.md?p=w-7-D) which has elected [treatment](/usc/42/11851.md?p=11) under [section 1396a(f) of this title](/usc/42/1396a.md?p=f)) may not provide for any period of ineligibility for an individual due to transfer of resources for less than fair market value except in accordance with this subsection. In the case of a transfer by the spouse of an individual which results in a period of ineligibility for medical assistance under a [State](/usc/42/1396b.md?p=w-7-D) plan for such individual, a [State](/usc/42/1396b.md?p=w-7-D) shall, using a reasonable methodology (as specified by the [Secretary](/usc/42/1301.md?p=a-6)), apportion such period of ineligibility (or any portion of such period) among the individual and the individual’s spouse if the spouse otherwise becomes eligible for medical assistance under the [State](/usc/42/1396b.md?p=w-7-D) plan.
  - (5) In this subsection, the term “resources” has the meaning given such term in [section 1382b of this title](/usc/42/1382b.md), without regard to the exclusion described in [subsection (a)(1)](#a-1) thereof.
- (d) **Treatment of trust amounts—**
  - (1) For purposes of determining an individual’s eligibility for, or amount of, benefits under a [State](/usc/42/1396b.md?p=w-7-D) plan under this subchapter, subject to [paragraph (4)](#d-4), the rules specified in [paragraph (3)](#d-3) shall apply to a [trust](#d-6) established by such individual.
  - (2)
    - (A) For purposes of this subsection, an individual shall be considered to have established a [trust](#d-6) if [assets](#h-1) of the individual were used to form all or part of the corpus of the [trust](#d-6) and if any of the following individuals established such [trust](#d-6) other than by will:
      - (i) The individual.
      - (ii) The individual’s spouse.
      - (iii) A [person](/usc/42/1301.md?p=a-3), [including](/usc/42/1301.md?p=b) a court or administrative body, with legal authority to act in place of or on behalf of the individual or the individual’s spouse.
      - (iv) A [person](/usc/42/1301.md?p=a-3), [including](/usc/42/1301.md?p=b) any court or administrative body, acting at the direction or upon the request of the individual or the individual’s spouse.
    - (B) In the case of a [trust](#d-6) the corpus of which [includes](/usc/42/1301.md?p=b) [assets](#h-1) of an individual (as determined under [subparagraph (A)](#d-2-A)) and [assets](#h-1) of any other [person](/usc/42/1301.md?p=a-3) or [persons](/usc/42/1301.md?p=a-3), the provisions of this subsection shall apply to the portion of the [trust](#d-6) attributable to the [assets](#h-1) of the individual.
    - (C) Subject to [paragraph (4)](#d-4), this subsection shall apply without regard to—
      - (i) the purposes for which a [trust](#d-6) is established,
      - (ii) whether the trustees have or exercise any discretion under the [trust](#d-6),
      - (iii) any restrictions on when or whether distributions may be made from the [trust](#d-6), or
      - (iv) any restrictions on the use of distributions from the [trust](#d-6).
  - (3)
    - (A) In the case of a revocable [trust](#d-6)—
      - (i) the corpus of the [trust](#d-6) shall be considered resources available to the individual,
      - (ii) payments from the [trust](#d-6) to or for the benefit of the individual shall be considered [income](/usc/42/292s.md?p=c-4) of the individual, and
      - (iii) any other payments from the [trust](#d-6) shall be considered [assets](#h-1) disposed of by the individual for purposes of [subsection (c)](#c).
    - (B) In the case of an irrevocable [trust](#d-6)—
      - (i) if there are any circumstances under which payment from the [trust](#d-6) could be made to or for the benefit of the individual, the portion of the corpus from which, or the [income](/usc/42/292s.md?p=c-4) on the corpus from which, payment to the individual could be made shall be considered resources available to the individual, and payments from that portion of the corpus or [income](/usc/42/292s.md?p=c-4)—
        - (I) to or for the benefit of the individual, shall be considered [income](/usc/42/292s.md?p=c-4) of the individual, and
        - (II) for any other purpose, shall be considered a transfer of [assets](#h-1) by the individual subject to [subsection (c)](#c); and
      - (ii) any portion of the [trust](#d-6) from which, or any [income](/usc/42/292s.md?p=c-4) on the corpus from which, no payment could under any circumstances be made to the individual shall be considered, as of the date of establishment of the [trust](#d-6) (or, if later, the date on which payment to the individual was foreclosed) to be [assets](#h-1) disposed by the individual for purposes of [subsection (c)](#c), and the value of the [trust](#d-6) shall be determined for purposes of such subsection by [including](/usc/42/1301.md?p=b) the amount of any payments made from such portion of the [trust](#d-6) after such date.
  - (4) This subsection shall not apply to any of the following [trusts](#d-6):
    - (A) A [trust](#d-6) containing the [assets](#h-1) of an individual under age 65 who is disabled (as defined in [section 1382c(a)(3) of this title](/usc/42/1382c.md?p=a-3)) and which is established for the benefit of such individual by the individual, a [parent](/usc/42/1396a.md?p=k-3), grandparent, legal guardian of the individual, or a court if the [State](/usc/42/1396b.md?p=w-7-D) will receive all amounts remaining in the [trust](#d-6) upon the death of such individual up to an amount equal to the total medical assistance paid on behalf of the individual under a [State](/usc/42/1396b.md?p=w-7-D) plan under this subchapter.
    - (B) A [trust](#d-6) established in a [State](/usc/42/1396b.md?p=w-7-D) for the benefit of an individual if—
      - (i) the [trust](#d-6) is composed only of pension, [Social](/usc/42/1397j.md?p=20) Security, and other [income](/usc/42/292s.md?p=c-4) to the individual (and accumulated [income](/usc/42/292s.md?p=c-4) in the [trust](#d-6)),
      - (ii) the [State](/usc/42/1396b.md?p=w-7-D) will receive all amounts remaining in the [trust](#d-6) upon the death of such individual up to an amount equal to the total medical assistance paid on behalf of the individual under a [State](/usc/42/1396b.md?p=w-7-D) plan under this subchapter; and
      - (iii) the [State](/usc/42/1396b.md?p=w-7-D) makes medical assistance available to individuals described in [section 1396a(a)(10)(A)(ii)(V) of this title](/usc/42/1396a.md?p=a-10-A-ii-V), but does not make such assistance available to individuals for [nursing facility services](/usc/42/1396d.md?p=f) under [section 1396a(a)(10)(C) of this title](/usc/42/1396a.md?p=a-10-C).
    - (C) A [trust](#d-6) containing the [assets](#h-1) of an individual who is disabled (as defined in [section 1382c(a)(3) of this title](/usc/42/1382c.md?p=a-3)) that meets the following conditions:
      - (i) The [trust](#d-6) is established and managed by a non-profit association.
      - (ii) A separate account is maintained for each beneficiary of the [trust](#d-6), but, for purposes of investment and management of [funds](/usc/42/12854.md?p=3), the [trust](#d-6) pools these accounts.
      - (iii) Accounts in the [trust](#d-6) are established solely for the benefit of individuals who are disabled (as defined in [section 1382c(a)(3) of this title](/usc/42/1382c.md?p=a-3)) by the [parent](/usc/42/1396a.md?p=k-3), grandparent, or legal guardian of such individuals, by such individuals, or by a court.
      - (iv) To the extent that amounts remaining in the beneficiary’s account upon the death of the beneficiary are not retained by the [trust](#d-6), the [trust](#d-6) pays to the [State](/usc/42/1396b.md?p=w-7-D) from such remaining amounts in the account an amount equal to the total amount of medical assistance paid on behalf of the beneficiary under the [State](/usc/42/1396b.md?p=w-7-D) plan under this subchapter.
  - (5) The [State agency](/usc/42/1320a–7a.md?p=i-1) shall establish procedures (in accordance with [standards](/usc/42/1320d.md?p=7) specified by the [Secretary](/usc/42/1301.md?p=a-6)) under which the [agency](/usc/42/1397n–12.md?p=1) waives the application of this subsection with respect to an individual if the individual establishes that such application would work an undue hardship on the individual as determined on the basis of criteria established by the [Secretary](/usc/42/1301.md?p=a-6).
  - (6) The term “trust” [includes](/usc/42/1301.md?p=b) any legal instrument or device that is similar to a trust but [includes](/usc/42/1301.md?p=b) an annuity only to such extent and in such manner as the [Secretary](/usc/42/1301.md?p=a-6) specifies.
- (e) **Disclosure and treatment of annuities—**
  - (1) In order to meet the requirements of this section for purposes of [section 1396a(a)(18) of this title](/usc/42/1396a.md?p=a-18), a [State](/usc/42/1396b.md?p=w-7-D) shall require, as a condition for the provision of medical assistance for services described in [subsection (c)(1)(C)(i)](#c-1-C-i) (relating to [long-term care](/usc/42/1397j.md?p=14-A) services) for an individual, the application of the individual for such assistance ([including](/usc/42/1301.md?p=b) any recertification of eligibility for such assistance) shall disclose a description of any interest the individual or community spouse has in an annuity (or similar financial instrument, as may be specified by the [Secretary](/usc/42/1301.md?p=a-6)), regardless of whether the annuity is irrevocable or is treated as an asset. Such application or recertification form shall include a statement that under [paragraph (2)](#e-2) the [State](/usc/42/1396b.md?p=w-7-D) becomes a remainder beneficiary under such an annuity or similar financial instrument by virtue of the provision of such medical assistance.
  - (2)
    - (A) In the case of disclosure concerning an annuity under [subsection (c)(1)(F)](#c-1-F), the [State](/usc/42/1396b.md?p=w-7-D) shall notify the issuer of the annuity of the right of the [State](/usc/42/1396b.md?p=w-7-D) under such subsection as a preferred remainder beneficiary in the annuity for medical assistance furnished to the individual. Nothing in this paragraph shall be construed as preventing such an issuer from notifying [persons](/usc/42/1301.md?p=a-3) with any other remainder interest of the [State](/usc/42/1396b.md?p=w-7-D)’s remainder interest under such subsection.
    - (B) In the case of such an issuer receiving notice under [subparagraph (A)](#e-2-A), the [State](/usc/42/1396b.md?p=w-7-D) may require the issuer to notify the [State](/usc/42/1396b.md?p=w-7-D) when there is a change in the amount of [income](/usc/42/292s.md?p=c-4) or principal being withdrawn from the amount that was being withdrawn at the time of the most recent disclosure described in [paragraph (1)](#e-1). A [State](/usc/42/1396b.md?p=w-7-D) shall take such information into account in determining the amount of the [State](/usc/42/1396b.md?p=w-7-D)’s obligations for medical assistance or in the individual’s eligibility for such assistance.
  - (3) The [Secretary](/usc/42/1301.md?p=a-6) may provide guidance to [States](/usc/42/1396b.md?p=w-7-D) on [categories](/usc/42/1395w–4.md?p=j-1) of transactions that may be treated as a transfer of asset for less than fair market value.
  - (4) Nothing in this subsection shall be construed as preventing a [State](/usc/42/1396b.md?p=w-7-D) from denying eligibility for medical assistance for an individual based on the [income](/usc/42/292s.md?p=c-4) or resources derived from an annuity described in [paragraph (1)](#e-1).
- (f) **Disqualification for long-term care assistance for individuals with substantial home equity—**
  - (1)
    - (A) Notwithstanding any other provision of this subchapter, subject to subparagraphs (B) and (C) of this paragraph and [paragraph (2)](#f-2), in determining eligibility of an individual for medical assistance with respect to [nursing facility services](/usc/42/1396d.md?p=f) or other [long-term care](/usc/42/1397j.md?p=14-A) services, the individual shall not be eligible for such assistance if the individual’s equity interest in the individual’s home exceeds $500,000.
    - (B) A [State](/usc/42/1396b.md?p=w-7-D) may elect, without regard to the requirements of [section 1396a(a)(1) of this title](/usc/42/1396a.md?p=a-1) (relating to statewideness) and [section 1396a(a)(10)(B) of this title](/usc/42/1396a.md?p=a-10-B) (relating to comparability), to apply [subparagraph (A)](#f-1-A) by substituting for “$500,000”, an amount that exceeds such amount, but does not exceed $750,000.
    - (C) The dollar amounts specified in this paragraph shall be increased, beginning with 2011, from year to year based on the percentage increase in the consumer price index for all urban consumers (all items; [United States](/usc/42/1301.md?p=a-2) [city](/usc/42/12902.md?p=11) average), rounded to the nearest $1,000.
  - (2) [Paragraph (1)](#f-1) shall not apply with respect to an individual if—
    - (A) the spouse of such individual, or
    - (B) such individual’s [child](/usc/42/416.md?p=e) who is under age 21, or (with respect to [States](/usc/42/1396b.md?p=w-7-D) eligible to participate in the [State](/usc/42/1396b.md?p=w-7-D) [program](/usc/42/274l–1.md?p=4) established under subchapter XVI) is blind or permanently and totally disabled, or (with respect to [States](/usc/42/1396b.md?p=w-7-D) which are not eligible to participate in such [program](/usc/42/274l–1.md?p=4)) is blind or disabled as defined in [section 1382c of this title](/usc/42/1382c.md),

    is lawfully residing in the individual’s home.

  - (3) Nothing in this subsection shall be construed as preventing an individual from using a reverse mortgage or home equity loan to reduce the individual’s total equity interest in the home.
  - (4) The [Secretary](/usc/42/1301.md?p=a-6) shall establish a process whereby [paragraph (1)](#f-1) is waived in the case of a demonstrated hardship.
- (g) **Treatment of entrance fees of individuals residing in continuing care retirement communities—**
  - (1) **In general—** For purposes of determining an individual’s eligibility for, or amount of, benefits under a [State](/usc/42/1396b.md?p=w-7-D) plan under this subchapter, the rules specified in [paragraph (2)](#g-2) shall apply to individuals residing in continuing care retirement communities or life care communities that collect an entrance fee on admission from such individuals.
  - (2) **Treatment of entrance fee—** For purposes of this subsection, an individual’s entrance fee in a continuing care retirement community or life care community shall be considered a resource available to the individual to the extent that—
    - (A) the individual has the ability to use the entrance fee, or the contract provides that the entrance fee may be used, to pay for care should other resources or [income](/usc/42/292s.md?p=c-4) of the individual be insufficient to pay for such care;
    - (B) the individual is eligible for a refund of any remaining entrance fee when the individual dies or terminates the continuing care retirement community or life care community contract and leaves the community; and
    - (C) the entrance fee does not confer an ownership interest in the continuing care retirement community or life care community.
- (h) **Definitions—** In this section, the following definitions shall apply:
  - (1) The term “assets”, with respect to an individual, [includes](/usc/42/1301.md?p=b) all [income](/usc/42/292s.md?p=c-4) and resources of the individual and of the individual’s spouse, [including](/usc/42/1301.md?p=b) any [income](/usc/42/292s.md?p=c-4) or resources which the individual or such individual’s spouse is entitled to but does not receive because of action—
    - (A) by the individual or such individual’s spouse,
    - (B) by a [person](/usc/42/1301.md?p=a-3), [including](/usc/42/1301.md?p=b) a court or administrative body, with legal authority to act in place of or on behalf of the individual or such individual’s spouse, or
    - (C) by any [person](/usc/42/1301.md?p=a-3), [including](/usc/42/1301.md?p=b) any court or administrative body, acting at the direction or upon the request of the individual or such individual’s spouse.
  - (2) The term “[income](/usc/42/292s.md?p=c-4)” has the meaning given such term in [section 1382a of this title](/usc/42/1382a.md).
  - (3) The term “[institutionalized individual](/usc/42/1382b.md?p=c-1-F-ii)” means an individual who is an inpatient in a [nursing facility](/usc/42/1396r.md?p=a), who is an inpatient in a medical institution and with respect to whom payment is made based on a level of care provided in a [nursing facility](/usc/42/1396r.md?p=a), or who is described in [section 1396a(a)(10)(A)(ii)(VI) of this title](/usc/42/1396a.md?p=a-10-A-ii-VI).
  - (4) The term “noninstitutionalized individual” means an individual receiving any of the services specified in [subsection (c)(1)(C)(ii)](#c-1-C-ii).
  - (5) The term “resources” has the meaning given such term in [section 1382b of this title](/usc/42/1382b.md), without regard (in the case of an [institutionalized individual](/usc/42/1382b.md?p=c-1-F-ii)) to the exclusion described in [subsection (a)(1)](/usc/42/1382b.md?p=a-1) of such section.

# §1396q. Application of provisions of subchapter II relating to subpoenas


The provisions of subsections (d) and (e) of [section 405 of this title](/usc/42/405.md) shall apply with respect to this subchapter to the same extent as they are applicable with respect to subchapter II, except that, in so applying such subsections, and in applying [section 405(l)](/usc/42/405.md?p=l) of this title thereto, with respect to this subchapter, any reference therein to the [Commissioner](/usc/42/12302.md?p=1) of [Social](/usc/42/1397j.md?p=20) Security or the [Social](/usc/42/1397j.md?p=20) Security [Administration](/usc/42/1301.md?p=a-10) shall be considered a reference to the [Secretary](/usc/42/1301.md?p=a-6) or the Department of Health and Human Services, respectively.


# §1396r. Requirements for nursing facilities

- (a) **“Nursing facility” defined—** In this subchapter, the term “nursing facility” means an institution (or a distinct part of an institution) which—
  - (1) is primarily engaged in providing to residents—
    - (A) skilled nursing care and related services for residents who require medical or nursing care,
    - (B) rehabilitation services for the rehabilitation of injured, disabled, or sick [persons](/usc/42/1301.md?p=a-3), or
    - (C) on a regular basis, health-related care and services to individuals who because of their mental or physical condition require care and services (above the level of room and [board](/usc/42/10261.md?p=2)) which can be made available to them only through institutional [facilities](/usc/42/11049.md?p=4),

    and is not primarily for the care and [treatment](/usc/42/11851.md?p=11) of mental diseases;

  - (2) has in effect a transfer [agreement](/usc/42/1320b–8.md?p=a-3-A) (meeting the requirements of [section 1395x(l)](/usc/42/1395x.md?p=l) of this title) with one or more [hospitals](/usc/42/1395dd.md?p=e-5) having [agreements](/usc/42/1320b–8.md?p=a-3-A) in effect under [section 1395cc of this title](/usc/42/1395cc.md); and
  - (3) meets the requirements for a [nursing facility](#a) described in subsections [(b)](#b), [(c)](#c), and [(d)](#d) of this section.

  Such term also [includes](/usc/42/1301.md?p=b) any [facility](/usc/42/11049.md?p=4) which is located in a [State](/usc/42/1396b.md?p=w-7-D) on an [Indian](/usc/42/6862.md?p=6) reservation and is certified by the [Secretary](/usc/42/1301.md?p=a-6) as meeting the requirements of [paragraph (1)](#a-1) and subsections [(b)](#b), [(c)](#c), and [(d)](#d).

- (b) **Requirements relating to provision of services—**
  - (1) **Quality of life—**
    - (A) **In general—** A [nursing facility](#a) must care for its residents in such a manner and in such an environment as will promote maintenance or enhancement of the quality of life of each resident.
    - (B) **Quality assessment and assurance—** A [nursing facility](#a) must maintain a quality assessment and assurance committee, consisting of the [director](/usc/42/5061.md?p=1) of nursing services, a [physician](/usc/42/1301.md?p=a-7) designated by the [facility](/usc/42/11049.md?p=4), and at least 3 other members of the [facility](/usc/42/11049.md?p=4)’s staff, which (i) meets at least quarterly to identify issues with respect to which quality assessment and assurance activities are necessary and (ii) develops and implements appropriate plans of action to correct identified quality deficiencies. A [State](/usc/42/1396b.md?p=w-7-D) or the [Secretary](/usc/42/1301.md?p=a-6) may not require disclosure of the records of such committee except insofar as such disclosure is related to the compliance of such committee with the requirements of this subparagraph.
  - (2) **Scope of services and activities under plan of care—** A [nursing facility](#a) must provide services and activities to attain or maintain the highest practicable physical, mental, and psychosocial well-being of each resident in accordance with a written plan of care which—
    - (A) describes the medical, nursing, and psychosocial needs of the resident and how such needs will be met;
    - (B) is initially prepared, with the participation to the extent practicable of the resident or the resident’s [family](/usc/42/290ff–4.md?p=d-2) or legal [representative](/usc/42/3058f.md?p=5), by a team which [includes](/usc/42/1301.md?p=b) the resident’s attending [physician](/usc/42/1301.md?p=a-7) and a registered professional nurse with responsibility for the resident; and
    - (C) is periodically reviewed and revised by such team after each assessment under [paragraph (3)](#b-3).
  - (3) **Residents’ assessment—**
    - (A) **Requirement—** A [nursing facility](#a) must conduct a comprehensive, accurate, standardized, reproducible assessment of each resident’s functional capacity, which assessment—
      - (i) describes the resident’s capability to perform daily life functions and significant impairments in functional capacity;
      - (ii) is based on a uniform minimum data set specified by the [Secretary](/usc/42/1301.md?p=a-6) under [subsection (f)(6)(A)](#f-6-A);
      - (iii) uses an instrument which is specified by the [State](/usc/42/1396b.md?p=w-7-D) under [subsection (e)(5)](#e-5); and
      - (iv) [includes](/usc/42/1301.md?p=b) the identification of medical problems.
    - (B) **Certification—**
      - (i) **In general—** Each such assessment must be conducted or coordinated (with the appropriate participation of health professionals) by a registered professional nurse who signs and certifies the completion of the assessment. Each individual who completes a portion of such an assessment shall sign and certify as to the accuracy of that portion of the assessment.
      - (ii) **Penalty for falsification—**
        - (I) An individual who willfully and knowingly certifies under [clause (i)](#b-3-B-i) a material and false statement in a resident assessment is subject to a civil money penalty of not more than $1,000 with respect to each assessment.
        - (II) An individual who willfully and knowingly [causes](/usc/42/9908.md?p=c-2) another individual to certify under [clause (i)](#b-3-B-i) a material and false statement in a resident assessment is subject to a civil money penalty of not more than $5,000 with respect to each assessment.
        - (III) The provisions of [section 1320a–7a of this title](/usc/42/1320a–7a.md) (other than subsections [(a)](#a) and [(b)](#b)) shall apply to a civil money penalty under this clause in the same manner as such provisions apply to a penalty or proceeding under [section 1320a–7a(a) of this title](/usc/42/1320a–7a.md?p=a).
      - (iii) **Use of independent assessors—** If a [State](/usc/42/1396b.md?p=w-7-D) determines, under a survey under [subsection (g)](#g) or otherwise, that there has been a knowing and willful certification of false assessments under this paragraph, the [State](/usc/42/1396b.md?p=w-7-D) may require (for a period specified by the [State](/usc/42/1396b.md?p=w-7-D)) that resident assessments under this paragraph be conducted and certified by individuals who are independent of the [facility](/usc/42/11049.md?p=4) and who are approved by the [State](/usc/42/1396b.md?p=w-7-D).
    - (C) **Frequency—**
      - (i) **In general—** Such an assessment must be conducted—
        - (I) promptly upon (but no later than 14 days after the date of) admission for each individual admitted on or after October 1, 1990, and by not later than October 1, 1991, for each resident of the [facility](/usc/42/11049.md?p=4) on that date;
        - (II) promptly after a significant change in the resident’s physical or mental condition; and
        - (III) in no case less often than once every 12 months.
      - (ii) **Resident review—** The [nursing facility](#a) must examine each resident no less frequently than once every 3 months and, as appropriate, revise the resident’s assessment to assure the continuing accuracy of the assessment.
    - (D) **Use—** The results of such an assessment shall be used in developing, reviewing, and revising the resident’s plan of care under [paragraph (2)](#b-2).
    - (E) **Coordination—** Such assessments shall be coordinated with any [State](/usc/42/1396b.md?p=w-7-D)-required preadmission screening [program](/usc/42/274l–1.md?p=4) to the maximum extent practicable in order to avoid duplicative testing and effort. In addition, a [nursing facility](#a) shall notify the [State](/usc/42/1396b.md?p=w-7-D) mental health authority or [State](/usc/42/1396b.md?p=w-7-D) mental retardation or [developmental disability](/usc/42/280i.md?p=d-2) authority, as applicable, promptly after a significant change in the physical or mental condition of a resident who is mentally ill or mentally retarded.
    - (F) **Requirements relating to preadmission screening for mentally ill and mentally retarded individuals—** Except as provided in clauses [(ii)](#e-7-A-ii) and [(iii)](#e-7-A-iii) of subsection (e)(7)(A), a [nursing facility](#a) must not admit, on or after January 1, 1989, any new resident who—
      - (i) is mentally ill (as defined in [subsection (e)(7)(G)(i)](#e-7-G-i)) unless the [State](/usc/42/1396b.md?p=w-7-D) mental health authority has determined (based on an independent physical and mental evaluation performed by a [person](/usc/42/1301.md?p=a-3) or entity other than the [State](/usc/42/1396b.md?p=w-7-D) mental health authority) prior to admission that, because of the physical and mental condition of the individual, the individual requires the level of services provided by a [nursing facility](#a), and, if the individual requires such level of services, whether the individual requires [specialized services](#e-7-G-iii) for mental illness, or
      - (ii) is mentally retarded (as defined in [subsection (e)(7)(G)(ii)](#e-7-G-ii)) unless the [State](/usc/42/1396b.md?p=w-7-D) mental retardation or [developmental disability](/usc/42/280i.md?p=d-2) authority has determined prior to admission that, because of the physical and mental condition of the individual, the individual requires the level of services provided by a [nursing facility](#a), and, if the individual requires such level of services, whether the individual requires [specialized services](#e-7-G-iii) for mental retardation.

      A [State](/usc/42/1396b.md?p=w-7-D) mental health authority and a [State](/usc/42/1396b.md?p=w-7-D) mental retardation or [developmental disability](/usc/42/280i.md?p=d-2) authority may not delegate (by subcontract or otherwise) their responsibilities under this subparagraph to a [nursing facility](#a) (or to an entity that has a direct or indirect affiliation or relationship with such a [facility](/usc/42/11049.md?p=4)).

  - (4) **Provision of services and activities—**
    - (A) **In general—** To the extent needed to fulfill all plans of care described in [paragraph (2)](#b-2), a [nursing facility](#a) must provide (or arrange for the provision of)—
      - (i) nursing and related services and specialized rehabilitative services to attain or maintain the highest practicable physical, mental, and psychosocial well-being of each resident;
      - (ii) medically-related [social](/usc/42/1397j.md?p=20) services to attain or maintain the highest practicable physical, mental, and psychosocial well-being of each resident;
      - (iii) pharmaceutical services ([including](/usc/42/1301.md?p=b) procedures that assure the accurate acquiring, receiving, dispensing, and administering of all [drugs](/usc/42/282.md?p=j-1-A-vii) and biologicals) to meet the needs of each resident;
      - (iv) dietary services that assure that the meals meet the daily nutritional and special dietary needs of each resident;
      - (v) an on-going [program](/usc/42/274l–1.md?p=4), directed by a qualified professional, of activities designed to meet the interests and the physical, mental, and psychosocial well-being of each resident;
      - (vi) routine dental services (to the extent covered under the [State](/usc/42/1396b.md?p=w-7-D) plan) and emergency dental services to meet the needs of each resident; and
      - (vii) [treatment](/usc/42/11851.md?p=11) and services required by mentally ill and mentally retarded residents not otherwise provided or arranged for (or required to be provided or arranged for) by the [State](/usc/42/1396b.md?p=w-7-D).

      The services provided or arranged by the [facility](/usc/42/11049.md?p=4) must meet professional [standards](/usc/42/1320d.md?p=7) of quality.

    - (B) **Qualified persons providing services—** Services described in clauses [(i)](#b-4-A-i), [(ii)](#b-4-A-ii), [(iii)](#b-4-A-iii), [(iv)](#b-4-A-iv), and [(vi)](#b-4-A-vi) of subparagraph (A) must be provided by qualified [persons](/usc/42/1301.md?p=a-3) in accordance with each resident’s written plan of care.
    - (C) **Required nursing care; facility waivers—**
      - (i) **General requirements—** With respect to [nursing facility services](#c-5-B-iii) provided on or after October 1, 1990, a [nursing facility](#a)—
        - (I) except as provided in [clause (ii)](#b-4-C-ii), must provide 24-hour licensed nursing services which are sufficient to meet the nursing needs of its residents, and
        - (II) except as provided in [clause (ii)](#b-4-C-ii), must use the services of a registered professional nurse for at least 8 consecutive hours a day, 7 days a week.
      - (ii) **Waiver by State—** To the extent that a [facility](/usc/42/11049.md?p=4) is unable to meet the requirements of [clause (i)](#b-4-C-i), a [State](/usc/42/1396b.md?p=w-7-D) may waive such requirements with respect to the [facility](/usc/42/11049.md?p=4) if—
        - (I) the [facility](/usc/42/11049.md?p=4) demonstrates to the satisfaction of the [State](/usc/42/1396b.md?p=w-7-D) that the [facility](/usc/42/11049.md?p=4) has been unable, despite diligent efforts ([including](/usc/42/1301.md?p=b) offering wages at the community prevailing rate for [nursing facilities](#a)), to recruit appropriate personnel,
        - (II) the [State](/usc/42/1396b.md?p=w-7-D) determines that a waiver of the requirement will not endanger the health or safety of individuals staying in the [facility](/usc/42/11049.md?p=4),
        - (III) the [State](/usc/42/1396b.md?p=w-7-D) finds that, for any such periods in which licensed nursing services are not available, a registered professional nurse or a [physician](/usc/42/1301.md?p=a-7) is obligated to respond immediately to telephone calls from the [facility](/usc/42/11049.md?p=4),
        - (IV) the [State agency](/usc/42/1320a–7a.md?p=i-1) granting a waiver of such requirements provides notice of the waiver to the [State long-term care ombudsman](/usc/42/1397j.md?p=22) (established under section 307(a)(12)[^1] of the Older Americans Act of 1965) and the [protection and advocacy system](/usc/42/15002.md?p=22) in the [State](/usc/42/1396b.md?p=w-7-D) for the mentally ill and the mentally retarded, and
        - (V) the [nursing facility](#a) that is granted such a waiver by a [State](/usc/42/1396b.md?p=w-7-D) notifies residents of the [facility](/usc/42/11049.md?p=4) (or, where appropriate, the guardians or legal [representatives](/usc/42/3058f.md?p=5) of such residents) and members of their immediate [families](/usc/42/12704.md?p=11) of the waiver.

      A waiver under this clause shall be subject to annual review and to the review of the [Secretary](/usc/42/1301.md?p=a-6) and subject to [clause (iii)](#b-4-C-iii) shall be accepted by the [Secretary](/usc/42/1301.md?p=a-6) for purposes of this subchapter to the same extent as is the [State](/usc/42/1396b.md?p=w-7-D)’s certification of the [facility](/usc/42/11049.md?p=4). In granting or renewing a waiver, a [State](/usc/42/1396b.md?p=w-7-D) may require the [facility](/usc/42/11049.md?p=4) to use other qualified, licensed personnel.

      - (iii) **Assumption of waiver authority by Secretary—** If the [Secretary](/usc/42/1301.md?p=a-6) determines that a [State](/usc/42/1396b.md?p=w-7-D) has shown a clear pattern and practice of allowing waivers in the absence of diligent efforts by [facilities](/usc/42/11049.md?p=4) to meet the staffing requirements, the [Secretary](/usc/42/1301.md?p=a-6) shall assume and exercise the authority of the [State](/usc/42/1396b.md?p=w-7-D) to [grant](/usc/42/1397j.md?p=10) waivers.
  - (5) **Required training of nurse aides—**
    - (A) **In general—**
      - (i) Except as provided in [clause (ii)](#b-5-A-ii), a [nursing facility](#a) must not use on a full-time basis any individual as a [nurse aide](#b-5-F) in the [facility](/usc/42/11049.md?p=4) on or after October 1, 1990, for more than 4 months unless the individual—
        - (I) has completed a [training](/usc/42/285e–2.md?p=b-2) and competency evaluation [program](/usc/42/274l–1.md?p=4), or a competency evaluation [program](/usc/42/274l–1.md?p=4), approved by the [State](/usc/42/1396b.md?p=w-7-D) under [subsection (e)(1)(A)](#e-1-A), and
        - (II) is competent to provide nursing or nursing-related services.
      - (ii) A [nursing facility](#a) must not use on a temporary, per diem, leased, or on any other basis other than as a permanent [employee](/usc/42/1320a–7h.md?p=e-7) any individual as a [nurse aide](#b-5-F) in the [facility](/usc/42/11049.md?p=4) on or after January 1, 1991, unless the individual meets the requirements described in [clause (i)](#b-5-A-i).
    - (B) **Offering competency evaluation programs for current employees—** A [nursing facility](#a) must provide, for individuals used as a [nurse aide](#b-5-F) by the [facility](/usc/42/11049.md?p=4) as of January 1, 1990, for a competency evaluation [program](/usc/42/274l–1.md?p=4) approved by the [State](/usc/42/1396b.md?p=w-7-D) under [subsection (e)(1)](#e-1) and such preparation as may be necessary for the individual to complete such a [program](/usc/42/274l–1.md?p=4) by October 1, 1990.
    - (C) **Competency—** The [nursing facility](#a) must not permit an individual, other than in a [training](/usc/42/285e–2.md?p=b-2) and competency evaluation [program](/usc/42/274l–1.md?p=4) approved by the [State](/usc/42/1396b.md?p=w-7-D), to serve as a [nurse aide](#b-5-F) or provide services of a type for which the individual has not demonstrated competency and must not use such an individual as a [nurse aide](#b-5-F) unless the [facility](/usc/42/11049.md?p=4) has inquired of any [State](/usc/42/1396b.md?p=w-7-D) [registry](/usc/42/6341.md?p=6) established under [subsection (e)(2)(A)](#e-2-A) that the [facility](/usc/42/11049.md?p=4) believes will include information concerning the individual.
    - (D) **Re-training required—** For purposes of [subparagraph (A)](#b-5-A), if, since an individual’s most recent completion of a [training](/usc/42/285e–2.md?p=b-2) and competency evaluation [program](/usc/42/274l–1.md?p=4), there has been a continuous period of 24 consecutive months during none of which the individual performed nursing or nursing-related services for monetary compensation, such individual shall complete a new [training](/usc/42/285e–2.md?p=b-2) and competency evaluation [program](/usc/42/274l–1.md?p=4), or a new competency evaluation [program](/usc/42/274l–1.md?p=4).
    - (E) **Regular in-service education—** The [nursing facility](#a) must provide such regular performance review and regular in-service education as assures that individuals used as [nurse aides](#b-5-F) are competent to perform services as [nurse aides](#b-5-F), [including](/usc/42/1301.md?p=b) [training](/usc/42/285e–2.md?p=b-2) for individuals providing nursing and nursing-related services to residents with cognitive impairments.
    - (F) **“Nurse aide” defined—** In this paragraph, the term “nurse aide” means any individual providing nursing or nursing-related services to residents in a [nursing facility](#a), but does not include an individual—
      - (i) who is a [licensed health professional](#b-5-G) (as defined in [subparagraph (G)](#b-5-G)) or a registered dietician, or
      - (ii) who volunteers to provide such services without monetary compensation.

      Such term [includes](/usc/42/1301.md?p=b) an individual who provides such services through an [agency](/usc/42/1397n–12.md?p=1) or under a contract with the [facility](/usc/42/11049.md?p=4).

    - (G) **Licensed health professional defined—** In this paragraph, the term “licensed health professional” means a [physician](/usc/42/1301.md?p=a-7), [physician](/usc/42/1301.md?p=a-7) assistant, nurse [practitioner](/usc/42/1395a.md?p=b-6-C), physical, speech, or occupational therapist, physical or occupational therapy assistant, registered professional nurse, licensed practical nurse, or licensed or certified [social](/usc/42/1397j.md?p=20) worker.
  - (6) **Physician supervision and clinical records—** A [nursing facility](#a) must—
    - (A) require that the health care of every resident be provided under the supervision of a [physician](/usc/42/1301.md?p=a-7) (or, at the option of a [State](/usc/42/1396b.md?p=w-7-D), under the supervision of a nurse [practitioner](/usc/42/1395a.md?p=b-6-C), clinical nurse specialist, or [physician](/usc/42/1301.md?p=a-7) assistant who is not an [employee](/usc/42/1320a–7h.md?p=e-7) of the [facility](/usc/42/11049.md?p=4) but who is working in collaboration with a [physician](/usc/42/1301.md?p=a-7));
    - (B) provide for having a [physician](/usc/42/1301.md?p=a-7) available to furnish necessary [medical care](/usc/42/1301.md?p=a-7) in case of emergency; and
    - (C) maintain clinical records on all residents, which records include the plans of care (described in [paragraph (2)](#b-2)) and the residents’ assessments (described in [paragraph (3)](#b-3)), as well as the results of any pre-admission screening conducted under [subsection (e)(7)](#e-7).
  - (7) **Required social services—** In the case of a [nursing facility](#a) with more than 120 beds, the [facility](/usc/42/11049.md?p=4) must have at least one [social](/usc/42/1397j.md?p=20) worker (with at least a bachelor’s degree in [social](/usc/42/1397j.md?p=20) work or similar professional qualifications) employed full-time to provide or assure the provision of [social](/usc/42/1397j.md?p=20) services.
  - (8) **Information on nurse staffing—**
    - (A) **In general—** A [nursing facility](#a) shall post daily for each shift the current number of licensed and unlicensed nursing staff directly responsible for resident care in the [facility](/usc/42/11049.md?p=4). The information shall be displayed in a uniform manner (as specified by the [Secretary](/usc/42/1301.md?p=a-6)) and in a clearly visible place.
    - (B) **Publication of data—** A [nursing facility](#a) shall, upon request, make available to the public the nursing staff data described in [subparagraph (A)](#b-8-A).
- (c) **Requirements relating to residents’ rights—**
  - (1) **General rights—**
    - (A) **Specified rights—** A [nursing facility](#a) must protect and promote the rights of each resident, [including](/usc/42/1301.md?p=b) each of the following rights:
      - (i) **Free choice—** The right to choose a personal attending [physician](/usc/42/1301.md?p=a-7), to be fully informed in advance about care and [treatment](/usc/42/11851.md?p=11), to be fully informed in advance of any changes in care or [treatment](/usc/42/11851.md?p=11) that may affect the resident’s well-being, and (except with respect to a resident adjudged incompetent) to participate in planning care and [treatment](/usc/42/11851.md?p=11) or changes in care and [treatment](/usc/42/11851.md?p=11).
      - (ii) **Free from restraints—** The right to be free from physical or mental [abuse](/usc/42/1397j.md?p=1), corporal punishment, involuntary seclusion, and any physical or chemical restraints imposed for purposes of discipline or convenience and not required to treat the resident’s medical symptoms. Restraints may only be imposed—
        - (I) to ensure the physical safety of the resident or other residents, and
        - (II) only upon the written order of a [physician](/usc/42/1301.md?p=a-7) that specifies the duration and circumstances under which the restraints are to be used (except in emergency circumstances specified by the [Secretary](/usc/42/1301.md?p=a-6) until such an order could reasonably be obtained).
      - (iii) **Privacy—** The right to privacy with regard to accommodations, medical [treatment](/usc/42/11851.md?p=11), written and telephonic communications, visits, and meetings of [family](/usc/42/290ff–4.md?p=d-2) and of resident groups.
      - (iv) **Confidentiality—** The right to confidentiality of personal and clinical records and to access to current clinical records of the resident upon request by the resident or the resident’s legal [representative](/usc/42/3058f.md?p=5), within 24 hours (excluding hours occurring during a weekend or holiday) after making such a request.
      - (v) **Accommodation of needs—** The right—
        - (I) to reside and receive services with reasonable accommodation of individual needs and preferences, except where the health or safety of the individual or other residents would be endangered, and
        - (II) to receive notice before the room or roommate of the resident in the [facility](/usc/42/11049.md?p=4) is changed.
      - (vi) **Grievances—** The right to voice grievances with respect to [treatment](/usc/42/11851.md?p=11) or care that is (or fails to be) furnished, without discrimination or reprisal for voicing the grievances and the right to prompt efforts by the [facility](/usc/42/11049.md?p=4) to resolve grievances the resident may have, [including](/usc/42/1301.md?p=b) those with respect to the behavior of other residents.
      - (vii) **Participation in resident and family groups—** The right of the resident to organize and participate in resident groups in the [facility](/usc/42/11049.md?p=4) and the right of the resident’s [family](/usc/42/290ff–4.md?p=d-2) to meet in the [facility](/usc/42/11049.md?p=4) with the [families](/usc/42/12704.md?p=11) of other residents in the [facility](/usc/42/11049.md?p=4).
      - (viii) **Participation in other activities—** The right of the resident to participate in [social](/usc/42/1397j.md?p=20), religious, and community activities that do not interfere with the rights of other residents in the [facility](/usc/42/11049.md?p=4).
      - (ix) **Examination of survey results—** The right to examine, upon reasonable request, the results of the most recent survey of the [facility](/usc/42/11049.md?p=4) conducted by the [Secretary](/usc/42/1301.md?p=a-6) or a [State](/usc/42/1396b.md?p=w-7-D) with respect to the [facility](/usc/42/11049.md?p=4) and any plan of correction in effect with respect to the [facility](/usc/42/11049.md?p=4).
      - (x) **Refusal of certain transfers—** The right to refuse a transfer to another room within the [facility](/usc/42/11049.md?p=4), if a purpose of the transfer is to relocate the resident from a portion of the [facility](/usc/42/11049.md?p=4) that is not a [skilled nursing facility](/usc/42/1395x.md?p=j) (for purposes of subchapter XVIII) to a portion of the [facility](/usc/42/11049.md?p=4) that is such a [skilled nursing facility](/usc/42/1395x.md?p=j).
      - (xi) **Other rights—** Any other right established by the [Secretary](/usc/42/1301.md?p=a-6).

      [Clause (iii)](#c-1-A-iii) shall not be construed as requiring the provision of a private room. A resident’s exercise of a right to refuse transfer under [clause (x)](#c-1-A-x) shall not affect the resident’s eligibility or entitlement to medical assistance under this subchapter or a [State](/usc/42/1396b.md?p=w-7-D)’s entitlement to Federal medical assistance under this subchapter with respect to services furnished to such a resident.

    - (B) **Notice of rights—** A [nursing facility](#a) must—
      - (i) inform each resident, orally and in writing at the time of admission to the [facility](/usc/42/11049.md?p=4), of the resident’s legal rights during the stay at the [facility](/usc/42/11049.md?p=4) and of the requirements and procedures for establishing eligibility for medical assistance under this subchapter, [including](/usc/42/1301.md?p=b) the right to request an assessment under [section 1396r–5(c)(1)(B) of this title](/usc/42/1396r–5.md?p=c-1-B);
      - (ii) make available to each resident, upon reasonable request, a written statement of such rights (which statement is updated upon changes in such rights) [including](/usc/42/1301.md?p=b) the notice (if any) of the [State](/usc/42/1396b.md?p=w-7-D) developed under [subsection (e)(6)](#e-6);
      - (iii) inform each resident who is entitled to medical assistance under this subchapter—
        - (I) at the time of admission to the [facility](/usc/42/11049.md?p=4) or, if later, at the time the resident becomes eligible for such assistance, of the items and services ([including](/usc/42/1301.md?p=b) those specified under [section 1396a(a)(28)(B) of this title](/usc/42/1396a.md?p=a-28-B)) that are included in [nursing facility services](#c-5-B-iii) under the [State](/usc/42/1396b.md?p=w-7-D) plan and for which the resident may not be charged (except as permitted in [section 1396o](/usc/42/1396o.md) of this title), and of those other items and services that the [facility](/usc/42/11049.md?p=4) offers and for which the resident may be charged and the amount of the charges for such items and services, and
        - (II) of changes in the items and services described in [subclause (I)](#c-1-B-iii-I) and of changes in the charges imposed for items and services described in that subclause; and
      - (iv) inform each other resident, in writing before or at the time of admission and periodically during the resident’s stay, of services available in the [facility](/usc/42/11049.md?p=4) and of related charges for such services, [including](/usc/42/1301.md?p=b) any charges for services not covered under subchapter XVIII or by the [facility](/usc/42/11049.md?p=4)’s basic per diem charge.

      The written description of legal rights under this subparagraph shall include a description of the protection of personal [funds](/usc/42/12854.md?p=3) under [paragraph (6)](#c-6) and a statement that a resident may file a complaint with a [State](/usc/42/1396b.md?p=w-7-D) survey and certification [agency](/usc/42/1397n–12.md?p=1) respecting resident [abuse](/usc/42/1397j.md?p=1) and [neglect](/usc/42/1397j.md?p=16) and misappropriation of resident property in the [facility](/usc/42/11049.md?p=4).

    - (C) **Rights of incompetent residents—** In the case of a resident adjudged incompetent under the laws of a [State](/usc/42/1396b.md?p=w-7-D), the rights of the resident under this subchapter shall devolve upon, and, to the extent judged necessary by a court of competent jurisdiction, be exercised by, the [person](/usc/42/1301.md?p=a-3) appointed under [State](/usc/42/1396b.md?p=w-7-D) law to act on the resident’s behalf.
    - (D) **Use of psychopharmacologic drugs—** Psychopharmacologic [drugs](/usc/42/282.md?p=j-1-A-vii) may be administered only on the orders of a [physician](/usc/42/1301.md?p=a-7) and only as part of a plan (included in the written plan of care described in [paragraph (2)](#c-2)) designed to eliminate or modify the symptoms for which the [drugs](/usc/42/282.md?p=j-1-A-vii) are prescribed and only if, at least annually an independent, external consultant reviews the appropriateness of the [drug](/usc/42/282.md?p=j-1-A-vii) plan of each resident receiving such [drugs](/usc/42/282.md?p=j-1-A-vii).
  - (2) **Transfer and discharge rights—**
    - (A) **In general—** A [nursing facility](#a) must permit each resident to remain in the [facility](/usc/42/11049.md?p=4) and must not transfer or discharge the resident from the [facility](/usc/42/11049.md?p=4) unless—
      - (i) the transfer or discharge is necessary to meet the resident’s welfare and the resident’s welfare cannot be met in the [facility](/usc/42/11049.md?p=4);
      - (ii) the transfer or discharge is appropriate because the resident’s health has improved sufficiently so the resident no longer needs the services provided by the [facility](/usc/42/11049.md?p=4);
      - (iii) the safety of individuals in the [facility](/usc/42/11049.md?p=4) is endangered;
      - (iv) the health of individuals in the [facility](/usc/42/11049.md?p=4) would otherwise be endangered;
      - (v) the resident has failed, after reasonable and appropriate notice, to pay (or to have paid under this subchapter or subchapter XVIII on the resident’s behalf) for a stay at the [facility](/usc/42/11049.md?p=4); or
      - (vi) the [facility](/usc/42/11049.md?p=4) ceases to operate.

      In each of the cases described in [clauses (i) through (iv)](#c-2-A-i..c-2-A-iv), the basis for the transfer or discharge must be documented in the resident’s clinical record. In the cases described in clauses [(i)](#c-2-A-i) and [(ii)](#c-2-A-ii), the documentation must be made by the resident’s [physician](/usc/42/1301.md?p=a-7), and in the case described in [clause (iv)](#c-2-A-iv) the documentation must be made by a [physician](/usc/42/1301.md?p=a-7). For purposes of [clause (v)](#c-2-A-v), in the case of a resident who becomes eligible for assistance under this subchapter after admission to the [facility](/usc/42/11049.md?p=4), only charges which may be imposed under this subchapter shall be considered to be allowable.

    - (B) **Pre-transfer and pre-discharge notice—**
      - (i) **In general—** Before effecting a transfer or discharge of a resident, a [nursing facility](#a) must—
        - (I) notify the resident (and, if known, an immediate [family member](/usc/42/1320d–9.md?p=b-1) of the resident or legal [representative](/usc/42/3058f.md?p=5)) of the transfer or discharge and the reasons therefor,
        - (II) record the reasons in the resident’s clinical record ([including](/usc/42/1301.md?p=b) any documentation required under [subparagraph (A)](#c-2-A)), and
        - (III) include in the notice the items described in [clause (iii)](#c-2-B-iii).
      - (ii) **Timing of notice—** The notice under [clause (i)(I)](#c-2-B-i-I) must be made at least 30 days in advance of the resident’s transfer or discharge except—
        - (I) in a case described in clause [(iii)](#c-2-A-iii) or [(iv)](#c-2-A-iv) of subparagraph (A);
        - (II) in a case described in [clause (ii)](#c-2-A-ii) of subparagraph (A), where the resident’s health improves sufficiently to allow a more immediate transfer or discharge;
        - (III) in a case described in [clause (i)](#c-2-A-i) of subparagraph (A), where a more immediate transfer or discharge is necessitated by the resident’s urgent medical needs; or
        - (IV) in a case where a resident has not resided in the [facility](/usc/42/11049.md?p=4) for 30 days.

      In the case of such exceptions, notice must be given as many days before the date of the transfer or discharge as is practicable.

      - (iii) **Items included in notice—** Each notice under [clause (i)](#c-2-B-i) must include—
        - (I) for transfers or discharges effected on or after October 1, 1989, notice of the resident’s right to appeal the transfer or discharge under the [State](/usc/42/1396b.md?p=w-7-D) process established under [subsection (e)(3)](#e-3);
        - (II) the name, mailing address, and telephone number of the [State long-term care ombudsman](/usc/42/1397j.md?p=22) (established under title III or VII of the Older Americans Act of 1965 [[42 U.S.C. 3021](/usc/42/3021.md) et seq., 3058 et seq.] in accordance with section 712 of the Act [[42 U.S.C. 3058g](/usc/42/3058g.md)]);
        - (III) in the case of residents with [developmental disabilities](/usc/42/280i.md?p=d-2), the mailing address and telephone number of the [agency](/usc/42/1397n–12.md?p=1) responsible for the [protection and advocacy system](/usc/42/15002.md?p=22) for developmentally disabled individuals established under subtitle C of the [Developmental Disabilities](/usc/42/280i.md?p=d-2) Assistance and Bill of Rights Act of 2000 [[42 U.S.C. 15041](/usc/42/15041.md) et seq.]; and
        - (IV) in the case of mentally ill residents (as defined in [subsection (e)(7)(G)(i)](#e-7-G-i)), the mailing address and telephone number of the [agency](/usc/42/1397n–12.md?p=1) responsible for the [protection and advocacy system](/usc/42/15002.md?p=22) for mentally ill individuals established under the Protection and Advocacy for Mentally Ill Individuals Act[^1] [[42 U.S.C. 10801](/usc/42/10801.md) et seq.].
    - (C) **Orientation—** A [nursing facility](#a) must provide sufficient preparation and orientation to residents to ensure safe and orderly transfer or discharge from the [facility](/usc/42/11049.md?p=4).
    - (D) **Notice on bed-hold policy and readmission—**
      - (i) **Notice before transfer—** Before a resident of a [nursing facility](#a) is transferred for [hospitalization](/usc/42/1301.md?p=a-7) or therapeutic leave, a [nursing facility](#a) must provide written information to the resident and an immediate [family member](/usc/42/1320d–9.md?p=b-1) or legal [representative](/usc/42/3058f.md?p=5) concerning—
        - (I) the provisions of the [State](/usc/42/1396b.md?p=w-7-D) plan under this subchapter regarding the period (if any) during which the resident will be permitted under the [State](/usc/42/1396b.md?p=w-7-D) plan to return and resume residence in the [facility](/usc/42/11049.md?p=4), and
        - (II) the policies of the [facility](/usc/42/11049.md?p=4) regarding such a period, which policies must be consistent with [clause (iii)](#c-2-D-iii).
      - (ii) **Notice upon transfer—** At the time of transfer of a resident to a [hospital](/usc/42/1395dd.md?p=e-5) or for therapeutic leave, a [nursing facility](#a) must provide written notice to the resident and an immediate [family member](/usc/42/1320d–9.md?p=b-1) or legal [representative](/usc/42/3058f.md?p=5) of the duration of any period described in [clause (i)](#c-2-D-i).
      - (iii) **Permitting resident to return—** A [nursing facility](#a) must establish and follow a written policy under which a resident—
        - (I) who is eligible for medical assistance for [nursing facility services](#c-5-B-iii) under a [State](/usc/42/1396b.md?p=w-7-D) plan,
        - (II) who is transferred from the [facility](/usc/42/11049.md?p=4) for [hospitalization](/usc/42/1301.md?p=a-7) or therapeutic leave, and
        - (III) whose [hospitalization](/usc/42/1301.md?p=a-7) or therapeutic leave exceeds a period paid for under the [State](/usc/42/1396b.md?p=w-7-D) plan for the holding of a bed in the [facility](/usc/42/11049.md?p=4) for the resident,

      will be permitted to be readmitted to the [facility](/usc/42/11049.md?p=4) immediately upon the first availability of a bed in a semiprivate room in the [facility](/usc/42/11049.md?p=4) if, at the time of [readmission](/usc/42/1395cc–4.md?p=a-2-H), the resident requires the services provided by the [facility](/usc/42/11049.md?p=4).

    - (E) **Information respecting advance directives—** A [nursing facility](#a) must comply with the requirement of [section 1396a(w) of this title](/usc/42/1396a.md?p=w) (relating to maintaining written policies and procedures respecting advance directives).
    - (F) **Continuing rights in case of voluntary withdrawal from participation—**
      - (i) **In general—** In the case of a [nursing facility](#a) that voluntarily withdraws from participation in a [State](/usc/42/1396b.md?p=w-7-D) plan under this subchapter but continues to provide services of the type provided by [nursing facilities](#a)—
        - (I) the [facility](/usc/42/11049.md?p=4)’s voluntary withdrawal from participation is not an acceptable basis for the transfer or discharge of residents of the [facility](/usc/42/11049.md?p=4) who were residing in the [facility](/usc/42/11049.md?p=4) on the day before the effective date of the withdrawal ([including](/usc/42/1301.md?p=b) those residents who were not entitled to medical assistance as of such day);
        - (II) the provisions of this section continue to apply to such residents until the date of their discharge from the [facility](/usc/42/11049.md?p=4); and
        - (III) in the case of each individual who begins residence in the [facility](/usc/42/11049.md?p=4) after the effective date of such withdrawal, the [facility](/usc/42/11049.md?p=4) shall provide notice orally and in a prominent manner in writing on a separate page at the time the individual begins residence of the information described in [clause (ii)](#c-2-F-ii) and shall obtain from each such individual at such time an acknowledgment of receipt of such information that is in writing, signed by the individual, and separate from other documents signed by such individual.

      Nothing in this subparagraph shall be construed as affecting any requirement of a participation [agreement](/usc/42/1320b–8.md?p=a-3-A) that a [nursing facility](#a) provide advance notice to the [State](/usc/42/1396b.md?p=w-7-D) or the [Secretary](/usc/42/1301.md?p=a-6), or both, of its intention to terminate the [agreement](/usc/42/1320b–8.md?p=a-3-A).

      - (ii) **Information for new residents—** The information described in this clause for a resident is the following:
        - (I) The [facility](/usc/42/11049.md?p=4) is not participating in the [program](/usc/42/274l–1.md?p=4) under this subchapter with respect to that resident.
        - (II) The [facility](/usc/42/11049.md?p=4) may transfer or discharge the resident from the [facility](/usc/42/11049.md?p=4) at such time as the resident is unable to pay the charges of the [facility](/usc/42/11049.md?p=4), even though the resident may have become eligible for medical assistance for [nursing facility services](#c-5-B-iii) under this subchapter.
      - (iii) **Continuation of payments and oversight authority—** Notwithstanding any other provision of this subchapter, with respect to the residents described in [clause (i)(I)](#c-2-F-i-I), a participation [agreement](/usc/42/1320b–8.md?p=a-3-A) of a [facility](/usc/42/11049.md?p=4) described in [clause (i)](#c-2-F-i) is deemed to continue in effect under such plan after the effective date of the [facility](/usc/42/11049.md?p=4)’s voluntary withdrawal from participation under the [State](/usc/42/1396b.md?p=w-7-D) plan for purposes of—
        - (I) receiving payments under the [State](/usc/42/1396b.md?p=w-7-D) plan for [nursing facility services](#c-5-B-iii) provided to such residents;
        - (II) maintaining compliance with all applicable requirements of this subchapter; and
        - (III) continuing to apply the survey, certification, and enforcement authority provided under subsections [(g)](#g) and [(h)](#h) ([including](/usc/42/1301.md?p=b) involuntary termination of a participation [agreement](/usc/42/1320b–8.md?p=a-3-A) deemed continued under this clause).
      - (iv) **No application to new residents—** This paragraph (other than [subclause (III)](#c-2-F-i-III) of clause (i)) shall not apply to an individual who begins residence in a [facility](/usc/42/11049.md?p=4) on or after the effective date of the withdrawal from participation under this subparagraph.
  - (3) **Access and visitation rights—** A [nursing facility](#a) must—
    - (A) permit immediate access to any resident by any [representative](/usc/42/3058f.md?p=5) of the [Secretary](/usc/42/1301.md?p=a-6), by any [representative](/usc/42/3058f.md?p=5) of the [State](/usc/42/1396b.md?p=w-7-D), by an [ombudsman](/usc/42/3058f.md?p=2) or [agency](/usc/42/1397n–12.md?p=1) described in subclause [(II)](#c-2-B-iii-II), [(III)](#c-2-B-iii-III), or [(IV)](#c-2-B-iii-IV) of paragraph (2)(B)(iii), or by the resident’s individual [physician](/usc/42/1301.md?p=a-7);
    - (B) permit immediate access to a resident, subject to the resident’s right to deny or withdraw consent at any time, by immediate [family](/usc/42/290ff–4.md?p=d-2) or other relatives of the resident;
    - (C) permit immediate access to a resident, subject to reasonable restrictions and the resident’s right to deny or withdraw consent at any time, by others who are visiting with the consent of the resident;
    - (D) permit reasonable access to a resident by any entity or individual that provides health, [social](/usc/42/1397j.md?p=20), legal, or other services to the resident, subject to the resident’s right to deny or withdraw consent at any time; and
    - (E) permit [representatives](/usc/42/3058f.md?p=5) of the [State](/usc/42/1396b.md?p=w-7-D) [ombudsman](/usc/42/3058f.md?p=2) (described in [paragraph (2)(B)(iii)(II)](#c-2-B-iii-II)), with the permission of the resident (or the resident’s legal [representative](/usc/42/3058f.md?p=5)) and consistent with [State](/usc/42/1396b.md?p=w-7-D) law, to examine a resident’s clinical records.
  - (4) **Equal access to quality care—**
    - (A) **In general—** A [nursing facility](#a) must establish and maintain identical policies and [practices](/usc/42/17061.md?p=19) regarding transfer, discharge, and the provision of services required under the [State](/usc/42/1396b.md?p=w-7-D) plan for all individuals regardless of source of payment.
    - (B) **Construction—**
      - (i) **Nothing prohibiting any charges for non-medicaid patients—** [Subparagraph (A)](#c-4-A) shall not be construed as prohibiting a [nursing facility](#a) from charging any amount for services furnished, consistent with the notice in [paragraph (1)(B)](#c-1-B) describing such charges.
      - (ii) **No additional services required—** [Subparagraph (A)](#c-4-A) shall not be construed as requiring a [State](/usc/42/1396b.md?p=w-7-D) to offer additional services on behalf of a resident than are otherwise provided under the [State](/usc/42/1396b.md?p=w-7-D) plan.
  - (5) **Admissions policy—**
    - (A) **Admissions—** With respect to admissions [practices](/usc/42/17061.md?p=19), a [nursing facility](#a) must—
      - (i)
        - (I) not require individuals applying to reside or residing in the [facility](/usc/42/11049.md?p=4) to waive their rights to benefits under this subchapter or subchapter XVIII, (II) subject to [subparagraph (B)(v)](#c-5-B-v), not require oral or written assurance that such individuals are not eligible for, or will not apply for, benefits under this subchapter or subchapter XVIII, and (III) prominently display in the [facility](/usc/42/11049.md?p=4) written information, and provide to such individuals oral and written information, about how to apply for and use such benefits and how to receive refunds for previous payments covered by such benefits;
      - (ii) not require a third party guarantee of payment to the [facility](/usc/42/11049.md?p=4) as a condition of admission (or expedited admission) to, or continued stay in, the [facility](/usc/42/11049.md?p=4); and
      - (iii) in the case of an individual who is entitled to medical assistance for [nursing facility services](#c-5-B-iii), not charge, solicit, accept, or receive, in addition to any amount otherwise required to be paid under the [State](/usc/42/1396b.md?p=w-7-D) plan under this subchapter, any gift, money, donation, or other consideration as a precondition of admitting (or expediting the admission of) the individual to the [facility](/usc/42/11049.md?p=4) or as a requirement for the individual’s continued stay in the [facility](/usc/42/11049.md?p=4).
    - (B) **Construction—**
      - (i) **No preemption of stricter standards—** [Subparagraph (A)](#c-5-A) shall not be construed as preventing [States](/usc/42/1396b.md?p=w-7-D) or political subdivisions therein from prohibiting, under [State](/usc/42/1396b.md?p=w-7-D) or local law, the discrimination against individuals who are entitled to medical assistance under the [State](/usc/42/1396b.md?p=w-7-D) plan with respect to admissions [practices](/usc/42/17061.md?p=19) of [nursing facilities](#a).
      - (ii) **Contracts with legal representatives—** [Subparagraph (A)(ii)](#c-5-A-ii) shall not be construed as preventing a [facility](/usc/42/11049.md?p=4) from requiring an individual, who has legal access to a resident’s [income](/usc/42/292s.md?p=c-4) or resources available to pay for care in the [facility](/usc/42/11049.md?p=4), to sign a contract (without incurring personal financial liability) to provide payment from the resident’s [income](/usc/42/292s.md?p=c-4) or resources for such care.
      - (iii) **Charges for additional services requested—** [Subparagraph (A)(iii)](#c-5-A-iii) shall not be construed as preventing a [facility](/usc/42/11049.md?p=4) from charging a resident, eligible for medical assistance under the [State](/usc/42/1396b.md?p=w-7-D) plan, for items or services the resident has requested and received and that are not specified in the [State](/usc/42/1396b.md?p=w-7-D) plan as included in the term “nursing facility services”.
      - (iv) **Bona fide contributions—** [Subparagraph (A)(iii)](#c-5-A-iii) shall not be construed as prohibiting a [nursing facility](#a) from soliciting, accepting, or receiving a charitable, religious, or philanthropic contribution from an organization or from a [person](/usc/42/1301.md?p=a-3) unrelated to the resident (or potential resident), but only to the extent that such contribution is not a condition of admission, expediting admission, or continued stay in the [facility](/usc/42/11049.md?p=4).
      - (v) **Treatment of continuing care retirement communities admission contracts—** Notwithstanding subclause (II) of subparagraph (A)(i), subject to subsections (c) and (d) of [section 1396r–5 of this title](/usc/42/1396r–5.md), contracts for admission to a [State](/usc/42/1396b.md?p=w-7-D) licensed, registered, certified, or equivalent continuing care retirement community or life care community, [including](/usc/42/1301.md?p=b) services in a [nursing facility](#a) that is part of such community, may require residents to spend on their care resources declared for the purposes of admission before applying for medical assistance.
  - (6) **Protection of resident funds—**
    - (A) **In general—** The [nursing facility](#a)—
      - (i) may not require residents to deposit their personal [funds](/usc/42/12854.md?p=3) with the [facility](/usc/42/11049.md?p=4), and
      - (ii) upon the written [authorization](/usc/42/4370m.md?p=3) of the resident, must hold, safeguard, and account for such personal [funds](/usc/42/12854.md?p=3) under a system established and maintained by the [facility](/usc/42/11049.md?p=4) in accordance with this paragraph.
    - (B) **Management of personal funds—** Upon written [authorization](/usc/42/4370m.md?p=3) of a resident under [subparagraph (A)(ii)](#c-6-A-ii), the [facility](/usc/42/11049.md?p=4) must manage and account for the personal [funds](/usc/42/12854.md?p=3) of the resident deposited with the [facility](/usc/42/11049.md?p=4) as follows:
      - (i) **Deposit—** The [facility](/usc/42/11049.md?p=4) must deposit any amount of personal [funds](/usc/42/12854.md?p=3) in excess of $50 with respect to a resident in an interest bearing account (or accounts) that is separate from any of the [facility](/usc/42/11049.md?p=4)’s operating accounts and credits all interest earned on such separate account to such account. With respect to any other personal [funds](/usc/42/12854.md?p=3), the [facility](/usc/42/11049.md?p=4) must maintain such [funds](/usc/42/12854.md?p=3) in a non-interest bearing account or petty cash [fund](/usc/42/12854.md?p=3).
      - (ii) **Accounting and records—** The [facility](/usc/42/11049.md?p=4) must assure a full and complete separate accounting of each such resident’s personal [funds](/usc/42/12854.md?p=3), maintain a written record of all financial transactions involving the personal [funds](/usc/42/12854.md?p=3) of a resident deposited with the [facility](/usc/42/11049.md?p=4), and afford the resident (or a legal [representative](/usc/42/3058f.md?p=5) of the resident) reasonable access to such record.
      - (iii) **Notice of certain balances—** The [facility](/usc/42/11049.md?p=4) must notify each resident receiving medical assistance under the [State](/usc/42/1396b.md?p=w-7-D) plan under this subchapter when the amount in the resident’s account reaches $200 less than the dollar amount determined under [section 1382(a)(3)(B) of this title](/usc/42/1382.md?p=a-3-B) and the fact that if the amount in the account (in addition to the value of the resident’s other nonexempt resources) reaches the amount determined under such section the resident may lose eligibility for such medical assistance or for benefits under subchapter XVI.
      - (iv) **Conveyance upon death—** Upon the death of a resident with such an account, the [facility](/usc/42/11049.md?p=4) must convey promptly the resident’s personal [funds](/usc/42/12854.md?p=3) (and a final accounting of such [funds](/usc/42/12854.md?p=3)) to the individual administering the resident’s estate.
    - (C) **Assurance of financial security—** The [facility](/usc/42/11049.md?p=4) must purchase a surety bond, or otherwise provide assurance satisfactory to the [Secretary](/usc/42/1301.md?p=a-6), to assure the security of all personal [funds](/usc/42/12854.md?p=3) of residents deposited with the [facility](/usc/42/11049.md?p=4).
    - (D) **Limitation on charges to personal funds—** The [facility](/usc/42/11049.md?p=4) may not impose a charge against the personal [funds](/usc/42/12854.md?p=3) of a resident for any item or service for which payment is made under this subchapter or subchapter XVIII.
  - (7) **Limitation on charges in case of medicaid-eligible individuals—**
    - (A) **In general—** A [nursing facility](#a) may not impose charges, for [certain medicaid-eligible individuals](#c-7-B) for [nursing facility services](#c-5-B-iii) covered by the [State](/usc/42/1396b.md?p=w-7-D) under its plan under this subchapter, that exceed the payment amounts established by the [State](/usc/42/1396b.md?p=w-7-D) for such services under this subchapter.
    - (B) **“Certain medicaid-eligible individual” defined—** In [subparagraph (A)](#c-7-A), the term “certain medicaid-eligible individual” means an individual who is entitled to medical assistance for [nursing facility services](#c-5-B-iii) in the [facility](/usc/42/11049.md?p=4) under this subchapter but with respect to whom such benefits are not being paid because, in determining the amount of the individual’s [income](/usc/42/292s.md?p=c-4) to be applied monthly to payment for the costs of such services, the amount of such [income](/usc/42/292s.md?p=c-4) exceeds the payment amounts established by the [State](/usc/42/1396b.md?p=w-7-D) for such services under this subchapter.
  - (8) **Posting of survey results—** A [nursing facility](#a) must post in a place readily accessible to residents, and [family members](/usc/42/1320d–9.md?p=b-1) and legal [representatives](/usc/42/3058f.md?p=5) of residents, the results of the most recent survey of the [facility](/usc/42/11049.md?p=4) conducted under [subsection (g)](#g).
- (d) **Requirements relating to administration and other matters—**
  - (1) **Administration—**
    - (A) **In general—** A [nursing facility](#a) must be administered in a manner that enables it to use its resources effectively and efficiently to attain or maintain the highest practicable physical, mental, and psychosocial well-being of each resident (consistent with requirements established under [subsection (f)(5)](#f-5)).
    - (B) **Nursing facility administrator—** The [administrator](/usc/42/4005.md?p=1) of a [nursing facility](#a) must meet [standards](/usc/42/1320d.md?p=7) established by the [Secretary](/usc/42/1301.md?p=a-6) under [subsection (f)(4)](#f-4).
    - (V) **[^2] Availability of survey, certification, and complaint investigation reports—** A [nursing facility](#a) must—
      - (i) have reports with respect to any surveys, certifications, and complaint investigations made respecting the [facility](/usc/42/11049.md?p=4) during the 3 preceding years available for any individual to review upon request; and
      - (ii) post notice of the availability of such reports in areas of the [facility](/usc/42/11049.md?p=4) that are prominent and accessible to the public.

      The [facility](/usc/42/11049.md?p=4) shall not make available under [clause (i)](#d-1-V-i) identifying information about [complainants](/usc/42/3602.md?p=j) or residents.

  - (2) **Licensing and Life Safety Code—**
    - (A) **Licensing—** A [nursing facility](#a) must be licensed under applicable [State](/usc/42/1396b.md?p=w-7-D) and local law.
    - (B) **Life Safety Code—** A [nursing facility](#a) must meet such provisions of such edition (as specified by the [Secretary](/usc/42/1301.md?p=a-6) in regulation) of the Life Safety Code of the National Fire Protection Association as are applicable to [nursing homes](/usc/42/1396g.md?p=e-1); except that—
      - (i) the [Secretary](/usc/42/1301.md?p=a-6) may waive, for such periods as he deems appropriate, specific provisions of such Code which if rigidly applied would result in unreasonable hardship upon a [facility](/usc/42/11049.md?p=4), but only if such waiver would not adversely affect the health and safety of residents or personnel, and
      - (ii) the provisions of such Code shall not apply in any [State](/usc/42/1396b.md?p=w-7-D) if the [Secretary](/usc/42/1301.md?p=a-6) finds that in such [State](/usc/42/1396b.md?p=w-7-D) there is in effect a fire and safety code, imposed by [State](/usc/42/1396b.md?p=w-7-D) law, which adequately protects residents of and personnel in [nursing facilities](#a).
  - (3) **Sanitary and infection control and physical environment—** A [nursing facility](#a) must—
    - (A) establish and maintain an infection control [program](/usc/42/274l–1.md?p=4) designed to provide a safe, sanitary, and comfortable environment in which residents reside and to help prevent the development and transmission of disease and infection, and
    - (B) be designed, constructed, equipped, and maintained in a manner to protect the health and safety of residents, personnel, and the general public.
  - (4) **Miscellaneous—**
    - (A) **Compliance with Federal, State, and local laws and professional standards—** A [nursing facility](#a) must operate and provide services in compliance with all applicable Federal, [State](/usc/42/1396b.md?p=w-7-D), and local laws and regulations ([including](/usc/42/1301.md?p=b) the requirements of [section 1320a–3 of this title](/usc/42/1320a–3.md)) and with accepted professional [standards](/usc/42/1320d.md?p=7) and principles which apply to professionals providing services in such a [facility](/usc/42/11049.md?p=4).
    - (B) **Other—** A [nursing facility](#a) must meet such other requirements relating to the health and safety of residents or relating to the physical [facilities](/usc/42/11049.md?p=4) thereof as the [Secretary](/usc/42/1301.md?p=a-6) may find necessary.
- (e) **State requirements relating to nursing facility requirements—** As a condition of approval of its plan under this subchapter, a [State](/usc/42/1396b.md?p=w-7-D) must provide for the following:
  - (1) **Specification and review of nurse aide training and competency evaluation programs and of nurse aide competency evaluation programs—** The [State](/usc/42/1396b.md?p=w-7-D) must—
    - (A) by not later than January 1, 1989, specify those [training](/usc/42/285e–2.md?p=b-2) and competency evaluation [programs](/usc/42/274l–1.md?p=4), and those competency evaluation [programs](/usc/42/274l–1.md?p=4), that the [State](/usc/42/1396b.md?p=w-7-D) approves for purposes of [subsection (b)(5)](#b-5) and that meet the requirements established under [subsection (f)(2)](#f-2), and
    - (B) by not later than January 1, 1990, provide for the review and reapproval of such [programs](/usc/42/274l–1.md?p=4), at a frequency and using a methodology consistent with the requirements established under [subsection (f)(2)(A)(iii)](#f-2-A-iii).

    The failure of the [Secretary](/usc/42/1301.md?p=a-6) to establish requirements under [subsection (f)(2)](#f-2) shall not relieve any [State](/usc/42/1396b.md?p=w-7-D) of its responsibility under this paragraph.

  - (2) **Nurse aide registry—**
    - (A) **In general—** By not later than January 1, 1989, the [State](/usc/42/1396b.md?p=w-7-D) shall establish and maintain a [registry](/usc/42/6341.md?p=6) of all individuals who have satisfactorily completed a nurse aide [training](/usc/42/285e–2.md?p=b-2) and competency evaluation [program](/usc/42/274l–1.md?p=4), or a nurse aide competency evaluation [program](/usc/42/274l–1.md?p=4), approved under [paragraph (1)](#e-1) in the [State](/usc/42/1396b.md?p=w-7-D), or any individual described in [subsection (f)(2)(B)(ii)](#f-2-B-ii) or in subparagraph [(B)](/usc/42/6901.md), [(C)](/usc/42/6901.md), or [(D)](/usc/42/6901.md) of section 6901(b)(4) of the Omnibus Budget Reconciliation Act of 1989.
    - (B) **Information in registry—** The [registry](/usc/42/6341.md?p=6) under [subparagraph (A)](#e-2-A) shall provide (in accordance with regulations of the [Secretary](/usc/42/1301.md?p=a-6)) for the inclusion of specific documented findings by a [State](/usc/42/1396b.md?p=w-7-D) under [subsection (g)(1)(C)](#g-1-C) of resident [neglect](/usc/42/1397j.md?p=16) or [abuse](/usc/42/1397j.md?p=1) or misappropriation of resident property involving an individual listed in the [registry](/usc/42/6341.md?p=6), as well as any brief statement of the individual disputing the findings. The [State](/usc/42/1396b.md?p=w-7-D) shall make available to the public information in the [registry](/usc/42/6341.md?p=6). In the case of inquiries to the [registry](/usc/42/6341.md?p=6) concerning an individual listed in the [registry](/usc/42/6341.md?p=6), any information disclosed concerning such a finding shall also include disclosure of any such statement in the [registry](/usc/42/6341.md?p=6) relating to the finding or a clear and accurate summary of such a statement.
    - (C) **Prohibition against charges—** A [State](/usc/42/1396b.md?p=w-7-D) may not impose any charges on a nurse aide relating to the [registry](/usc/42/6341.md?p=6) established and maintained under [subparagraph (A)](#e-2-A).
  - (3) **State appeals process for transfers and discharges—** The [State](/usc/42/1396b.md?p=w-7-D), for transfers and discharges from [nursing facilities](#a) effected on or after October 1, 1989, must provide for a fair mechanism, meeting the guidelines established under [subsection (f)(3)](#f-3), for hearing appeals on transfers and discharges of residents of such [facilities](/usc/42/11049.md?p=4); but the failure of the [Secretary](/usc/42/1301.md?p=a-6) to establish such guidelines under such subsection shall not relieve any [State](/usc/42/1396b.md?p=w-7-D) of its responsibility under this paragraph.
  - (4) **Nursing facility administrator standards—** By not later than July 1, 1989, the [State](/usc/42/1396b.md?p=w-7-D) must have implemented and enforced the [nursing facility](#a) [administrator](/usc/42/4005.md?p=1) [standards](/usc/42/1320d.md?p=7) developed under [subsection (f)(4)](#f-4) respecting the qualification of [administrators](/usc/42/4005.md?p=1) of [nursing facilities](#a).
  - (5) **Specification of resident assessment instrument—** Effective July 1, 1990, the [State](/usc/42/1396b.md?p=w-7-D) shall specify the instrument to be used by [nursing facilities](#a) in the [State](/usc/42/1396b.md?p=w-7-D) in complying with the requirement of [subsection (b)(3)(A)(iii)](#b-3-A-iii). Such instrument shall be—
    - (A) one of the instruments designated under [subsection (f)(6)(B)](#f-6-B), or
    - (B) an instrument which the [Secretary](/usc/42/1301.md?p=a-6) has approved as being consistent with the minimum data set of core elements, common definitions, and utilization guidelines specified by the [Secretary](/usc/42/1301.md?p=a-6) under [subsection (f)(6)(A)](#f-6-A).
  - (6) **Notice of medicaid rights—** Each [State](/usc/42/1396b.md?p=w-7-D), as a condition of approval of its plan under this subchapter, effective April 1, 1988, must develop (and periodically update) a written notice of the rights and obligations of residents of [nursing facilities](#a) (and spouses of such residents) under this subchapter.
  - (7) **State requirements for preadmission screening and resident review—**
    - (A) **Preadmission screening—**
      - (i) **In general—** Effective January 1, 1989, the [State](/usc/42/1396b.md?p=w-7-D) must have in effect a preadmission screening [program](/usc/42/274l–1.md?p=4), for making determinations (using any criteria developed under [subsection (f)(8)](#f-8)) described in [subsection (b)(3)(F)](#b-3-F) for mentally ill and mentally retarded individuals (as defined in [subparagraph (G)](#e-7-G)) who are admitted to [nursing facilities](#a) on or after January 1, 1989. The failure of the [Secretary](/usc/42/1301.md?p=a-6) to develop minimum criteria under [subsection (f)(8)](#f-8) shall not relieve any [State](/usc/42/1396b.md?p=w-7-D) of its responsibility to have a preadmission screening [program](/usc/42/274l–1.md?p=4) under this subparagraph or to perform resident reviews under [subparagraph (B)](#e-7-B).
      - (ii) **Clarification with respect to certain readmissions—** The preadmission screening [program](/usc/42/274l–1.md?p=4) under [clause (i)](#e-7-A-i) need not provide for determinations in the case of the [readmission](/usc/42/1395cc–4.md?p=a-2-H) to a [nursing facility](#a) of an individual who, after being admitted to the [nursing facility](#a), was transferred for care in a [hospital](/usc/42/1395dd.md?p=e-5).
      - (iii) **Exception for certain hospital discharges—** The preadmission screening [program](/usc/42/274l–1.md?p=4) under [clause (i)](#e-7-A-i) shall not apply to the admission to a [nursing facility](#a) of an individual—
        - (I) who is admitted to the [facility](/usc/42/11049.md?p=4) directly from a [hospital](/usc/42/1395dd.md?p=e-5) after receiving acute inpatient care at the [hospital](/usc/42/1395dd.md?p=e-5),
        - (II) who requires [nursing facility services](#c-5-B-iii) for the condition for which the individual received care in the [hospital](/usc/42/1395dd.md?p=e-5), and
        - (III) whose attending [physician](/usc/42/1301.md?p=a-7) has certified, before admission to the [facility](/usc/42/11049.md?p=4), that the individual is likely to require less than 30 days of [nursing facility services](#c-5-B-iii).
    - (B) **State requirement for resident review—**
      - (i) **For mentally ill residents—** As of April 1, 1990, in the case of each resident of a [nursing facility](#a) who is mentally ill, the [State](/usc/42/1396b.md?p=w-7-D) mental health authority must review and determine (using any criteria developed under [subsection (f)(8)](#f-8) and based on an independent physical and mental evaluation performed by a [person](/usc/42/1301.md?p=a-3) or entity other than the [State](/usc/42/1396b.md?p=w-7-D) mental health authority)—
        - (I) whether or not the resident, because of the resident’s physical and mental condition, requires the level of services provided by a [nursing facility](#a) or requires the level of services of an inpatient psychiatric [hospital](/usc/42/1395dd.md?p=e-5) for individuals under age 21 (as described in [section 1396d(h) of this title](/usc/42/1396d.md?p=h)) or of an [institution for mental diseases](/usc/42/1396d.md?p=i) providing medical assistance to individuals 65 years of age or older; and
        - (II) whether or not the resident requires specialized services for mental illness.
      - (ii) **For mentally retarded residents—** As of April 1, 1990, in the case of each resident of a [nursing facility](#a) who is mentally retarded, the [State](/usc/42/1396b.md?p=w-7-D) mental retardation or [developmental disability](/usc/42/280i.md?p=d-2) authority must review and determine (using any criteria developed under [subsection (f)(8)](#f-8))—
        - (I) whether or not the resident, because of the resident’s physical and mental condition, requires the level of services provided by a [nursing facility](#a) or requires the level of services of an intermediate care [facility](/usc/42/11049.md?p=4) described under [section 1396d(d) of this title](/usc/42/1396d.md?p=d); and
        - (II) whether or not the resident requires specialized services for mental retardation.
      - (iii) **Review required upon change in resident’s condition—** A review and determination under clause [(i)](#e-7-B-i) or [(ii)](#e-7-B-ii) must be conducted promptly after a [nursing facility](#a) has notified the [State](/usc/42/1396b.md?p=w-7-D) mental health authority or [State](/usc/42/1396b.md?p=w-7-D) mental retardation or [developmental disability](/usc/42/280i.md?p=d-2) authority, as applicable, under [subsection (b)(3)(E)](#b-3-E) with respect to a mentally ill or mentally retarded resident, that there has been a significant change in the resident’s physical or mental condition.
      - (iv) **Prohibition of delegation—** A [State](/usc/42/1396b.md?p=w-7-D) mental health authority, a [State](/usc/42/1396b.md?p=w-7-D) mental retardation or [developmental disability](/usc/42/280i.md?p=d-2) authority, and a [State](/usc/42/1396b.md?p=w-7-D) may not delegate (by subcontract or otherwise) their responsibilities under this subparagraph to a [nursing facility](#a) (or to an entity that has a direct or indirect affiliation or relationship with such a [facility](/usc/42/11049.md?p=4)).
    - (C) **Response to preadmission screening and resident review—** As of April 1, 1990, the [State](/usc/42/1396b.md?p=w-7-D) must meet the following requirements:
      - (i) **Long-term residents not requiring nursing facility services, but requiring specialized services—** In the case of a resident who is determined, under [subparagraph (B)](#e-7-B), not to require the level of services provided by a [nursing facility](#a), but to require specialized services for mental illness or mental retardation, and who has continuously resided in a [nursing facility](#a) for at least 30 months before the date of the determination, the [State](/usc/42/1396b.md?p=w-7-D) must, in consultation with the resident’s [family](/usc/42/290ff–4.md?p=d-2) or legal [representative](/usc/42/3058f.md?p=5) and care-givers—
        - (I) inform the resident of the institutional and noninstitutional alternatives covered under the [State](/usc/42/1396b.md?p=w-7-D) plan for the resident,
        - (II) offer the resident the choice of remaining in the [facility](/usc/42/11049.md?p=4) or of receiving covered services in an alternative appropriate institutional or noninstitutional setting,
        - (III) clarify the effect on eligibility for services under the [State](/usc/42/1396b.md?p=w-7-D) plan if the resident chooses to leave the [facility](/usc/42/11049.md?p=4) ([including](/usc/42/1301.md?p=b) its effect on [readmission](/usc/42/1395cc–4.md?p=a-2-H) to the [facility](/usc/42/11049.md?p=4)), and
        - (IV) regardless of the resident’s choice, provide for (or arrange for the provision of) such specialized services for the mental illness or mental retardation.

      A [State](/usc/42/1396b.md?p=w-7-D) shall not be denied payment under this subchapter for [nursing facility services](#c-5-B-iii) for a resident described in this clause because the resident does not require the level of services provided by such a [facility](/usc/42/11049.md?p=4), if the resident chooses to remain in such a [facility](/usc/42/11049.md?p=4).

      - (ii) **Other residents not requiring nursing facility services, but requiring specialized services—** In the case of a resident who is determined, under [subparagraph (B)](#e-7-B), not to require the level of services provided by a [nursing facility](#a), but to require specialized services for mental illness or mental retardation, and who has not continuously resided in a [nursing facility](#a) for at least 30 months before the date of the determination, the [State](/usc/42/1396b.md?p=w-7-D) must, in consultation with the resident’s [family](/usc/42/290ff–4.md?p=d-2) or legal [representative](/usc/42/3058f.md?p=5) and care-givers—
        - (I) arrange for the safe and orderly discharge of the resident from the [facility](/usc/42/11049.md?p=4), consistent with the requirements of [subsection (c)(2)](#c-2),
        - (II) prepare and orient the resident for such discharge, and
        - (III) provide for (or arrange for the provision of) such specialized services for the mental illness or mental retardation.
      - (iii) **Residents not requiring nursing facility services and not requiring specialized services—** In the case of a resident who is determined, under [subparagraph (B)](#e-7-B), not to require the level of services provided by a [nursing facility](#a) and not to require specialized services for mental illness or mental retardation, the [State](/usc/42/1396b.md?p=w-7-D) must—
        - (I) arrange for the safe and orderly discharge of the resident from the [facility](/usc/42/11049.md?p=4), consistent with the requirements of [subsection (c)(2)](#c-2), and
        - (II) prepare and orient the resident for such discharge.
      - (iv) **Annual report—** Each [State](/usc/42/1396b.md?p=w-7-D) shall report to the [Secretary](/usc/42/1301.md?p=a-6) annually concerning the number and disposition of residents described in each of clauses [(ii)](#e-7-C-ii) and [(iii)](#e-7-C-iii).
    - (D) **Denial of payment—**
      - (i) **For failure to conduct preadmission screening or review—** No payment may be made under [section 1396b(a) of this title](/usc/42/1396b.md?p=a) with respect to [nursing facility services](#c-5-B-iii) furnished to an individual for whom a determination is required under [subsection (b)(3)(F)](#b-3-F) or [subparagraph (B)](#e-7-B) but for whom the determination is not made.
      - (ii) **For certain residents not requiring nursing facility level of services—** No payment may be made under [section 1396b(a) of this title](/usc/42/1396b.md?p=a) with respect to [nursing facility services](#c-5-B-iii) furnished to an individual (other than an individual described in [subparagraph (C)(i)](#e-7-C-i)) who does not require the level of services provided by a [nursing facility](#a).
    - (E) **Permitting alternative disposition plans—** With respect to residents of a [nursing facility](#a) who are mentally retarded or mentally ill and who are determined under [subparagraph (B)](#e-7-B) not to require the level of services of such a [facility](/usc/42/11049.md?p=4), but who require specialized services for mental illness or mental retardation, a [State](/usc/42/1396b.md?p=w-7-D) and the [nursing facility](#a) shall be considered to be in compliance with the requirements of [subparagraphs (A) through (C)](#e-A..e-C) of this paragraph if, before April 1, 1989, the [State](/usc/42/1396b.md?p=w-7-D) and the [Secretary](/usc/42/1301.md?p=a-6) have entered into an [agreement](/usc/42/1320b–8.md?p=a-3-A) relating to the disposition of such residents of the [facility](/usc/42/11049.md?p=4) and the [State](/usc/42/1396b.md?p=w-7-D) is in compliance with such [agreement](/usc/42/1320b–8.md?p=a-3-A). Such an [agreement](/usc/42/1320b–8.md?p=a-3-A) may provide for the disposition of the residents after the date specified in [subparagraph (C)](#e-7-C). The [State](/usc/42/1396b.md?p=w-7-D) may revise such an [agreement](/usc/42/1320b–8.md?p=a-3-A), subject to the approval of the [Secretary](/usc/42/1301.md?p=a-6), before October 1, 1991, but only if, under the revised [agreement](/usc/42/1320b–8.md?p=a-3-A), all residents subject to the [agreement](/usc/42/1320b–8.md?p=a-3-A) who do not require the level of services of such a [facility](/usc/42/11049.md?p=4) are discharged from the [facility](/usc/42/11049.md?p=4) by not later than April 1, 1994.
    - (F) **Appeals procedures—** Each [State](/usc/42/1396b.md?p=w-7-D), as a condition of approval of its plan under this subchapter, effective January 1, 1989, must have in effect an appeals process for individuals adversely affected by determinations under subparagraph [(A)](#e-7-A) or [(B)](#e-7-B).
    - (G) **Definitions—** In this paragraph and in [subsection (b)(3)(F)](#b-3-F):
      - (i) An individual is considered to be “mentally ill” if the individual has a serious mental illness (as defined by the [Secretary](/usc/42/1301.md?p=a-6) in consultation with the National Institute of Mental Health) and does not have a primary diagnosis of dementia ([including](/usc/42/1301.md?p=b) Alzheimer’s disease or a related disorder) or a diagnosis (other than a primary diagnosis) of dementia and a primary diagnosis that is not a serious mental illness.
      - (ii) An individual is considered to be “mentally retarded” if the individual is mentally retarded or a [person](/usc/42/1301.md?p=a-3) with a related condition (as described in [section 1396d(d) of this title](/usc/42/1396d.md?p=d)).
      - (iii) The term “specialized services” has the meaning given such term by the [Secretary](/usc/42/1301.md?p=a-6) in regulations, but does not include, in the case of a resident of a [nursing facility](#a), services within the scope of services which the [facility](/usc/42/11049.md?p=4) must provide or arrange for its residents under [subsection (b)(4)](#b-4).
- (f) **Responsibilities of Secretary relating to nursing facility requirements—**
  - (1) **General responsibility—** It is the duty and responsibility of the [Secretary](/usc/42/1301.md?p=a-6) to assure that requirements which govern the provision of care in [nursing facilities](#a) under [State](/usc/42/1396b.md?p=w-7-D) plans approved under this subchapter, and the enforcement of such requirements, are adequate to protect the health, safety, welfare, and rights of residents and to promote the effective and efficient use of public moneys.
  - (2) **Requirements for nurse aide training and competency evaluation programs and for nurse aide competency evaluation programs—**
    - (A) **In general—** For purposes of subsections [(b)(5)](#b-5) and [(e)(1)(A)](#e-1-A), the [Secretary](/usc/42/1301.md?p=a-6) shall establish, by not later than September 1, 1988—
      - (i) requirements for the approval of nurse aide [training](/usc/42/285e–2.md?p=b-2) and competency evaluation [programs](/usc/42/274l–1.md?p=4), [including](/usc/42/1301.md?p=b) requirements relating to (I) the areas to be covered in such a [program](/usc/42/274l–1.md?p=4) ([including](/usc/42/1301.md?p=b) at least basic nursing skills, personal care skills, recognition of mental health and [social](/usc/42/1397j.md?p=20) service needs, care of cognitively impaired residents, basic restorative services, and residents’ rights) and content of the curriculum ([including](/usc/42/1301.md?p=b), in the case of initial [training](/usc/42/285e–2.md?p=b-2) and, if the [Secretary](/usc/42/1301.md?p=a-6) determines appropriate, in the case of ongoing [training](/usc/42/285e–2.md?p=b-2), dementia management [training](/usc/42/285e–2.md?p=b-2), and patient [abuse](/usc/42/1397j.md?p=1) prevention [training](/usc/42/285e–2.md?p=b-2)[^3], (II) minimum hours of initial and ongoing [training](/usc/42/285e–2.md?p=b-2) and retraining ([including](/usc/42/1301.md?p=b) not less than 75 hours in the case of initial [training](/usc/42/285e–2.md?p=b-2)), (III) qualifications of instructors, and (IV) procedures for determination of competency;
      - (ii) requirements for the approval of nurse aide competency evaluation [programs](/usc/42/274l–1.md?p=4), [including](/usc/42/1301.md?p=b) requirement relating to the areas to be covered in such a [program](/usc/42/274l–1.md?p=4), [including](/usc/42/1301.md?p=b) at least basic nursing skills, personal care skills, recognition of mental health and [social](/usc/42/1397j.md?p=20) service needs, care of cognitively impaired residents, basic restorative services, and residents’ rights, and procedures for determination of competency;
      - (iii) requirements respecting the minimum frequency and methodology to be used by a [State](/usc/42/1396b.md?p=w-7-D) in reviewing such [programs](/usc/42/274l–1.md?p=4)’ compliance with the requirements for such [programs](/usc/42/274l–1.md?p=4); and
      - (iv) requirements, under both such [programs](/usc/42/274l–1.md?p=4), that—
        - (I) provide procedures for determining competency that permit a nurse aide, at the nurse aide’s option, to establish competency through procedures or methods other than the passing of a written examination and to have the competency evaluation conducted at the [nursing facility](#a) at which the aide is (or will be) employed (unless the [facility](/usc/42/11049.md?p=4) is described in [subparagraph (B)(iii)(I)](#f-2-B-iii-I)),
        - (II) prohibit the imposition on a nurse aide who is employed by (or who has received an offer of employment from) a [facility](/usc/42/11049.md?p=4) on the date on which the aide begins either such [program](/usc/42/274l–1.md?p=4) of any charges ([including](/usc/42/1301.md?p=b) any charges for textbooks and other required course materials and any charges for the competency evaluation) for either such [program](/usc/42/274l–1.md?p=4), and
        - (III) in the case of a nurse aide not described in [subclause (II)](#f-2-A-iv-II) who is employed by (or who has received an offer of employment from) a [facility](/usc/42/11049.md?p=4) not later than 12 months after completing either such [program](/usc/42/274l–1.md?p=4), the [State](/usc/42/1396b.md?p=w-7-D) shall provide for the reimbursement of costs incurred in completing such [program](/usc/42/274l–1.md?p=4) on a prorata basis during the period in which the nurse aide is so employed.
    - (B) **Approval of certain programs—** Such requirements—
      - (i) may permit approval of [programs](/usc/42/274l–1.md?p=4) offered by or in [facilities](/usc/42/11049.md?p=4), as well as outside [facilities](/usc/42/11049.md?p=4) ([including](/usc/42/1301.md?p=b) [employee](/usc/42/1320a–7h.md?p=e-7) organizations), and of [programs](/usc/42/274l–1.md?p=4) in effect on December 22, 1987;
      - (ii) shall permit a [State](/usc/42/1396b.md?p=w-7-D) to find that an individual who has completed (before July 1, 1989) a nurse aide [training](/usc/42/285e–2.md?p=b-2) and competency evaluation [program](/usc/42/274l–1.md?p=4) shall be deemed to have completed such a [program](/usc/42/274l–1.md?p=4) approved under [subsection (b)(5)](#b-5) if the [State](/usc/42/1396b.md?p=w-7-D) determines that, at the time the [program](/usc/42/274l–1.md?p=4) was offered, the [program](/usc/42/274l–1.md?p=4) met the requirements for approval under such paragraph; and
      - (iii) subject to subparagraphs [(C)](#f-2-C) and [(D)](#f-2-D), shall prohibit approval of such a [program](/usc/42/274l–1.md?p=4)—
        - (I) offered by or in a [nursing facility](#a) which, within the previous 2 years—
        - (II) offered by or in a [nursing facility](#a) unless the [State](/usc/42/1396b.md?p=w-7-D) makes the determination, upon an individual’s completion of the [program](/usc/42/274l–1.md?p=4), that the individual is competent to provide nursing and nursing-related services in [nursing facilities](#a).

      A [State](/usc/42/1396b.md?p=w-7-D) may not delegate (through subcontract or otherwise) its responsibility under [clause (iii)(II)](#f-2-B-iii-II) to the [nursing facility](#a).

    - (C) **Waiver authorized—** [Clause (iii)(I)](#f-2-B-iii-I) of subparagraph (B) shall not apply to a [program](/usc/42/274l–1.md?p=4) offered in (but not by) a [nursing facility](#a) (or [skilled nursing facility](/usc/42/1395x.md?p=j) for purposes of subchapter XVIII) in a [State](/usc/42/1396b.md?p=w-7-D) if the [State](/usc/42/1396b.md?p=w-7-D)—
      - (i) determines that there is no other such [program](/usc/42/274l–1.md?p=4) offered within a reasonable distance of the [facility](/usc/42/11049.md?p=4),
      - (ii) assures, through an oversight effort, that an adequate environment exists for operating the [program](/usc/42/274l–1.md?p=4) in the [facility](/usc/42/11049.md?p=4), and
      - (iii) provides notice of such determination and assurances to the [State long-term care ombudsman](/usc/42/1397j.md?p=22).
    - (D) **Waiver of disapproval of nurse-aide training programs—** Upon application of a [nursing facility](#a), the [Secretary](/usc/42/1301.md?p=a-6) may waive the application of subparagraph (B)(iii)(I)(c) if the imposition of the civil monetary penalty was not related to the quality of care provided to residents of the [facility](/usc/42/11049.md?p=4). Nothing in this subparagraph shall be construed as eliminating any requirement upon a [facility](/usc/42/11049.md?p=4) to pay a civil monetary penalty described in the preceding sentence.
  - (3) **Federal guidelines for State appeals process for transfers and discharges—** For purposes of subsections [(c)(2)(B)(iii)](#c-2-B-iii) and (e)(3), by not later than October 1, 1988, the [Secretary](/usc/42/1301.md?p=a-6) shall establish guidelines for minimum [standards](/usc/42/1320d.md?p=7) which [State](/usc/42/1396b.md?p=w-7-D) appeals processes under [subsection (e)(3)](#e-3) must meet to provide a fair mechanism for hearing appeals on transfers and discharges of residents from [nursing facilities](#a).
  - (4) **Secretarial standards qualification of administrators—** For purposes of subsections (d)(1)(C) and (e)(4), the [Secretary](/usc/42/1301.md?p=a-6) shall develop, by not later than March 1, 1988, [standards](/usc/42/1320d.md?p=7) to be applied in assuring the qualifications of [administrators](/usc/42/4005.md?p=1) of [nursing facilities](#a).
  - (5) **Criteria for administration—** The [Secretary](/usc/42/1301.md?p=a-6) shall establish criteria for assessing a [nursing facility](#a)’s compliance with the requirement of [subsection (d)(1)](#d-1) with respect to—
    - (A) its governing body and management,
    - (B) [agreements](/usc/42/1320b–8.md?p=a-3-A) with [hospitals](/usc/42/1395dd.md?p=e-5) regarding transfers of residents to and from the [hospitals](/usc/42/1395dd.md?p=e-5) and to and from other [nursing facilities](#a),
    - (C) [disaster](/usc/42/5204.md?p=2) preparedness,
    - (D) direction of [medical care](/usc/42/1301.md?p=a-7) by a [physician](/usc/42/1301.md?p=a-7),
    - (E) [laboratory](/usc/42/300jj.md?p=10) and radiological services,
    - (F) clinical records, and
    - (G) resident and advocate participation.
  - (6) **Specification of resident assessment data set and instruments—** The [Secretary](/usc/42/1301.md?p=a-6) shall—
    - (A) not later than January 1, 1989, specify a minimum data set of core elements and common definitions for use by [nursing facilities](#a) in conducting the assessments required under [subsection (b)(3)](#b-3), and establish guidelines for utilization of the data set; and
    - (B) by not later than April 1, 1990, designate one or more instruments which are consistent with the specification made under [subparagraph (A)](#f-6-A) and which a [State](/usc/42/1396b.md?p=w-7-D) may specify under [subsection (e)(5)(A)](#e-5-A) for use by [nursing facilities](#a) in complying with the requirements of [subsection (b)(3)(A)(iii)](#b-3-A-iii).
  - (7) **List of items and services furnished in nursing facilities not chargeable to the personal funds of a resident—**
    - (A) **Regulations required—** Pursuant to the requirement of section 21(b) of the Medicare-[Medicaid](/usc/42/1396b.md?p=w-3-E-iii-III-aa) Anti-Fraud and [Abuse](/usc/42/1397j.md?p=1) Amendments of 1977, the [Secretary](/usc/42/1301.md?p=a-6) shall issue regulations, on or before the first day of the seventh month to begin after December 22, 1987, that define those costs which may be charged to the personal [funds](/usc/42/12854.md?p=3) of residents in [nursing facilities](#a) who are individuals receiving medical assistance with respect to [nursing facility services](#c-5-B-iii) under this subchapter and those costs which are to be included in the payment amount under this subchapter for [nursing facility services](#c-5-B-iii).
    - (B) **Rule if failure to publish regulations—** If the [Secretary](/usc/42/1301.md?p=a-6) does not issue the regulations under [subparagraph (A)](#f-7-A) on or before the date required in that subparagraph, in the case of a resident of a [nursing facility](#a) who is eligible to receive benefits for [nursing facility services](#c-5-B-iii) under this subchapter, for purposes of [section 1396a(a)(28)(B) of this title](/usc/42/1396a.md?p=a-28-B), the [Secretary](/usc/42/1301.md?p=a-6) shall be deemed to have promulgated regulations under this paragraph which provide that the costs which may not be charged to the personal [funds](/usc/42/12854.md?p=3) of such resident (and for which payment is considered to be made under this subchapter) include, at a minimum, the costs for routine personal hygiene items and services furnished by the [facility](/usc/42/11049.md?p=4).
  - (8) **Federal minimum criteria and monitoring for preadmission screening and resident review—**
    - (A) **Minimum criteria—** The [Secretary](/usc/42/1301.md?p=a-6) shall develop, by not later than October 1, 1988, minimum criteria for [States](/usc/42/1396b.md?p=w-7-D) to use in making determinations under subsections [(b)(3)(F)](#b-3-F) and [(e)(7)(B)](#e-7-B) and in permitting individuals adversely affected to appeal such determinations, and shall notify the [States](/usc/42/1396b.md?p=w-7-D) of such criteria.
    - (B) **Monitoring compliance—** The [Secretary](/usc/42/1301.md?p=a-6) shall review, in a sufficient number of cases to allow reasonable inferences, each [State](/usc/42/1396b.md?p=w-7-D)’s compliance with the requirements of [subsection (e)(7)(C)(ii)](#e-7-C-ii) (relating to discharge and placement for active [treatment](/usc/42/11851.md?p=11) of certain residents).
  - (9) **Criteria for monitoring State waivers—** The [Secretary](/usc/42/1301.md?p=a-6) shall develop, by not later than October 1, 1988, criteria and procedures for monitoring [State](/usc/42/1396b.md?p=w-7-D) performances in granting waivers pursuant to [subsection (b)(4)(C)(ii)](#b-4-C-ii).
  - (10) **Special focus facility program—**
    - (A) **In general—** The [Secretary](/usc/42/1301.md?p=a-6) shall conduct a special focus [facility](/usc/42/11049.md?p=4) [program](/usc/42/274l–1.md?p=4) for enforcement of requirements for [nursing facilities](#a) that the [Secretary](/usc/42/1301.md?p=a-6) has identified as having substantially failed to meet applicable requirements of this chapter.
    - (B) **Periodic surveys—** Under such [program](/usc/42/274l–1.md?p=4) the [Secretary](/usc/42/1301.md?p=a-6) shall conduct surveys of each [facility](/usc/42/11049.md?p=4) in the [program](/usc/42/274l–1.md?p=4) not less often than once every 6 months.
- (g) **Survey and certification process—**
  - (1) **State and Federal responsibility—**
    - (A) **In general—** Under each [State](/usc/42/1396b.md?p=w-7-D) plan under this subchapter, the [State](/usc/42/1396b.md?p=w-7-D) shall be responsible for certifying, in accordance with surveys conducted under [paragraph (2)](#g-2), the compliance of [nursing facilities](#a) (other than [facilities](/usc/42/11049.md?p=4) of the [State](/usc/42/1396b.md?p=w-7-D)) with the requirements of subsections [(b)](#b), [(c)](#c), and [(d)](#d). The [Secretary](/usc/42/1301.md?p=a-6) shall be responsible for certifying, in accordance with surveys conducted under [paragraph (2)](#g-2), the compliance of [State](/usc/42/1396b.md?p=w-7-D) [nursing facilities](#a) with the requirements of such subsections.
    - (B) **Educational program—** Each [State](/usc/42/1396b.md?p=w-7-D) shall conduct periodic educational [programs](/usc/42/274l–1.md?p=4) for the staff and residents (and their [representatives](/usc/42/3058f.md?p=5)) of [nursing facilities](#a) in order to present current regulations, procedures, and policies under this section.
    - (C) **Investigation of allegations of resident neglect and abuse and misappropriation of resident property—** The [State](/usc/42/1396b.md?p=w-7-D) shall provide, through the [agency](/usc/42/1397n–12.md?p=1) responsible for surveys and certification of [nursing facilities](#a) under this subsection, for a process for the receipt and timely review and investigation of allegations of [neglect](/usc/42/1397j.md?p=16) and [abuse](/usc/42/1397j.md?p=1) and misappropriation of resident property by a nurse aide of a resident in a [nursing facility](#a) or by another individual used by the [facility](/usc/42/11049.md?p=4) in providing services to such a resident. The [State](/usc/42/1396b.md?p=w-7-D) shall, after notice to the individual involved and a reasonable opportunity for a hearing for the individual to rebut allegations, make a finding as to the accuracy of the allegations. If the [State](/usc/42/1396b.md?p=w-7-D) finds that a nurse aide has neglected or abused a resident or misappropriated resident property in a [facility](/usc/42/11049.md?p=4), the [State](/usc/42/1396b.md?p=w-7-D) shall notify the nurse aide and the [registry](/usc/42/6341.md?p=6) of such finding. If the [State](/usc/42/1396b.md?p=w-7-D) finds that any other individual used by the [facility](/usc/42/11049.md?p=4) has neglected or abused a resident or misappropriated resident property in a [facility](/usc/42/11049.md?p=4), the [State](/usc/42/1396b.md?p=w-7-D) shall notify the appropriate licensure authority. A [State](/usc/42/1396b.md?p=w-7-D) shall not make a finding that an individual has neglected a resident if the individual demonstrates that such [neglect](/usc/42/1397j.md?p=16) was caused by factors beyond the control of the individual.
    - (D) **Removal of name from nurse aide registry—**
      - (i) **In general—** In the case of a finding of [neglect](/usc/42/1397j.md?p=16) under [subparagraph (C)](#g-1-C), the [State](/usc/42/1396b.md?p=w-7-D) shall establish a procedure to permit a nurse aide to petition the [State](/usc/42/1396b.md?p=w-7-D) to have his or her name removed from the [registry](/usc/42/6341.md?p=6) upon a determination by the [State](/usc/42/1396b.md?p=w-7-D) that—
        - (I) the employment and personal history of the nurse aide does not reflect a pattern of abusive behavior or [neglect](/usc/42/1397j.md?p=16); and
        - (II) the [neglect](/usc/42/1397j.md?p=16) involved in the original finding was a singular occurrence.
      - (ii) **Timing of determination—** In no case shall a determination on a petition submitted under [clause (i)](#g-1-D-i) be made prior to the expiration of the 1-year period beginning on the date on which the name of the petitioner was added to the [registry](/usc/42/6341.md?p=6) under [subparagraph (C)](#g-1-C).
    - (E) **Construction—** The failure of the [Secretary](/usc/42/1301.md?p=a-6) to issue regulations to carry out this subsection shall not relieve a [State](/usc/42/1396b.md?p=w-7-D) of its responsibility under this subsection.
  - (2) **Surveys—**
    - (A) **Annual standard survey—**
      - (i) **In general—** Each [nursing facility](#a) shall be subject to a [standard](/usc/42/1320d.md?p=7) survey, to be conducted without any prior notice to the [facility](/usc/42/11049.md?p=4). Any individual who notifies (or [causes](/usc/42/9908.md?p=c-2) to be notified) a [nursing facility](#a) of the time or date on which such a survey is scheduled to be conducted is subject to a civil money penalty of not to exceed $2,000. The provisions of [section 1320a–7a of this title](/usc/42/1320a–7a.md) (other than subsections [(a)](#a) and [(b)](#b)) shall apply to a civil money penalty under the previous sentence in the same manner as such provisions apply to a penalty or proceeding under [section 1320a–7a(a) of this title](/usc/42/1320a–7a.md?p=a). The [Secretary](/usc/42/1301.md?p=a-6) shall review each [State](/usc/42/1396b.md?p=w-7-D)’s procedures for scheduling and conduct of [standard](/usc/42/1320d.md?p=7) surveys to assure that the [State](/usc/42/1396b.md?p=w-7-D) has taken all reasonable steps to avoid giving notice of such a survey through the scheduling procedures and the conduct of the surveys themselves.
      - (ii) **Contents—** Each [standard](/usc/42/1320d.md?p=7) survey shall include, for a case-mix stratified sample of residents—
        - (I) a survey of the quality of care furnished, as measured by indicators of medical, nursing, and rehabilitative care, dietary and nutrition services, activities and [social](/usc/42/1397j.md?p=20) participation, and sanitation, infection control, and the physical environment,
        - (II) written plans of care provided under [subsection (b)(2)](#b-2) and an audit of the residents’ assessments under [subsection (b)(3)](#b-3) to determine the accuracy of such assessments and the adequacy of such plans of care, and
        - (III) a review of compliance with residents’ rights under [subsection (c)](#c).
      - (iii) **Frequency—**
        - (I) **In general—** Each [nursing facility](#a) shall be subject to a [standard](/usc/42/1320d.md?p=7) survey not later than 15 months after the date of the previous [standard](/usc/42/1320d.md?p=7) survey conducted under this subparagraph. The statewide average interval between [standard](/usc/42/1320d.md?p=7) surveys of a [nursing facility](#a) shall not exceed 12 months.
        - (II) **Special surveys—** If not otherwise conducted under [subclause (I)](#g-2-A-iii-I), a [standard](/usc/42/1320d.md?p=7) survey (or an abbreviated [standard](/usc/42/1320d.md?p=7) survey) may be conducted within 2 months of any change of ownership, [administration](/usc/42/1301.md?p=a-10), management of a [nursing facility](#a), or [director](/usc/42/5061.md?p=1) of nursing in order to determine whether the change has resulted in any decline in the quality of care furnished in the [facility](/usc/42/11049.md?p=4).
    - (B) **Extended surveys—**
      - (i) **In general—** Each [nursing facility](#a) which is found, under a [standard](/usc/42/1320d.md?p=7) survey, to have provided substandard quality of care shall be subject to an extended survey. Any other [facility](/usc/42/11049.md?p=4) may, at the [Secretary](/usc/42/1301.md?p=a-6)’s or [State](/usc/42/1396b.md?p=w-7-D)’s discretion, be subject to such an extended survey (or a partial extended survey).
      - (ii) **Timing—** The extended survey shall be conducted immediately after the [standard](/usc/42/1320d.md?p=7) survey (or, if not practicable, not later than 2 weeks after the date of completion of the [standard](/usc/42/1320d.md?p=7) survey).
      - (iii) **Contents—** In such an extended survey, the survey team shall review and identify the policies and procedures which produced such substandard quality of care and shall determine whether the [facility](/usc/42/11049.md?p=4) has complied with all the requirements described in subsections [(b)](#b), [(c)](#c), and [(d)](#d). Such review shall include an expansion of the size of the sample of residents’ assessments reviewed and a review of the staffing, of in-service [training](/usc/42/285e–2.md?p=b-2), and, if appropriate, of contracts with consultants.
      - (iv) **Construction—** Nothing in this paragraph shall be construed as requiring an extended or partial extended survey as a prerequisite to imposing a sanction against a [facility](/usc/42/11049.md?p=4) under [subsection (h)](#h) on the basis of findings in a [standard](/usc/42/1320d.md?p=7) survey.
    - (C) **Survey protocol—** [Standard](/usc/42/1320d.md?p=7) and extended surveys shall be conducted—
      - (i) based upon a protocol which the [Secretary](/usc/42/1301.md?p=a-6) has developed, tested, and validated by not later than January 1, 1990, and
      - (ii) by individuals, of a survey team, who meet such minimum qualifications as the [Secretary](/usc/42/1301.md?p=a-6) establishes by not later than such date.

      The failure of the [Secretary](/usc/42/1301.md?p=a-6) to develop, test, or validate such protocols or to establish such minimum qualifications shall not relieve any [State](/usc/42/1396b.md?p=w-7-D) of its responsibility (or the [Secretary](/usc/42/1301.md?p=a-6) of the [Secretary](/usc/42/1301.md?p=a-6)’s responsibility) to conduct surveys under this subsection.

    - (D) **Consistency of surveys—** Each [State](/usc/42/1396b.md?p=w-7-D) shall implement [programs](/usc/42/274l–1.md?p=4) to measure and reduce inconsistency in the application of survey results among surveyors.
    - (E) **Survey teams—**
      - (i) **In general—** Surveys under this subsection shall be conducted by a multidisciplinary team of professionals ([including](/usc/42/1301.md?p=b) a registered professional nurse).
      - (ii) **Prohibition of conflicts of interest—** A [State](/usc/42/1396b.md?p=w-7-D) may not use as a member of a survey team under this subsection an individual who is serving (or has served within the previous 2 years) as a member of the staff of, or as a consultant to, the [facility](/usc/42/11049.md?p=4) surveyed respecting compliance with the requirements of subsections [(b)](#b), [(c)](#c), and [(d)](#d), or who has a personal or familial financial interest in the [facility](/usc/42/11049.md?p=4) being surveyed.
      - (iii) **Training—** The [Secretary](/usc/42/1301.md?p=a-6) shall provide for the comprehensive [training](/usc/42/285e–2.md?p=b-2) of [State](/usc/42/1396b.md?p=w-7-D) and Federal surveyors in the conduct of [standard](/usc/42/1320d.md?p=7) and extended surveys under this subsection, [including](/usc/42/1301.md?p=b) the auditing of resident assessments and plans of care. No individual shall serve as a member of a survey team unless the individual has successfully completed a [training](/usc/42/285e–2.md?p=b-2) and testing [program](/usc/42/274l–1.md?p=4) in survey and certification techniques that has been approved by the [Secretary](/usc/42/1301.md?p=a-6).
  - (3) **Validation surveys—**
    - (A) **In general—** The [Secretary](/usc/42/1301.md?p=a-6) shall conduct onsite surveys of a [representative](/usc/42/3058f.md?p=5) sample of [nursing facilities](#a) in each [State](/usc/42/1396b.md?p=w-7-D), within 2 months of the date of surveys conducted under [paragraph (2)](#g-2) by the [State](/usc/42/1396b.md?p=w-7-D), in a sufficient number to allow inferences about the adequacies of each [State](/usc/42/1396b.md?p=w-7-D)’s surveys conducted under [paragraph (2)](#g-2). In conducting such surveys, the [Secretary](/usc/42/1301.md?p=a-6) shall use the same survey protocols as the [State](/usc/42/1396b.md?p=w-7-D) is required to use under [paragraph (2)](#g-2). If the [State](/usc/42/1396b.md?p=w-7-D) has determined that an individual [nursing facility](#a) meets the requirements of subsections [(b)](#b), [(c)](#c), and [(d)](#d), but the [Secretary](/usc/42/1301.md?p=a-6) determines that the [facility](/usc/42/11049.md?p=4) does not meet such requirements, the [Secretary](/usc/42/1301.md?p=a-6)’s determination as to the [facility](/usc/42/11049.md?p=4)’s noncompliance with such requirements is binding and supersedes that of the [State](/usc/42/1396b.md?p=w-7-D) survey.
    - (B) **Scope—** With respect to each [State](/usc/42/1396b.md?p=w-7-D), the [Secretary](/usc/42/1301.md?p=a-6) shall conduct surveys under [subparagraph (A)](#g-3-A) each year with respect to at least 5 percent of the number of [nursing facilities](#a) surveyed by the [State](/usc/42/1396b.md?p=w-7-D) in the year, but in no case less than 5 [nursing facilities](#a) in the [State](/usc/42/1396b.md?p=w-7-D).
    - (C) **Reduction in administrative costs for substandard performance—** If the [Secretary](/usc/42/1301.md?p=a-6) finds, on the basis of such surveys, that a [State](/usc/42/1396b.md?p=w-7-D) has failed to perform surveys as required under [paragraph (2)](#g-2) or that a [State](/usc/42/1396b.md?p=w-7-D)’s survey and certification performance otherwise is not adequate, the [Secretary](/usc/42/1301.md?p=a-6) may provide for the [training](/usc/42/285e–2.md?p=b-2) of survey teams in the [State](/usc/42/1396b.md?p=w-7-D) and shall provide for a reduction of the payment otherwise made to the [State](/usc/42/1396b.md?p=w-7-D) under [section 1396b(a)(2)(D) of this title](/usc/42/1396b.md?p=a-2-D) with respect to a quarter equal to 33 percent multiplied by a fraction, the denominator of which is equal to the total number of residents in [nursing facilities](#a) surveyed by the [Secretary](/usc/42/1301.md?p=a-6) that quarter and the numerator of which is equal to the total number of residents in [nursing facilities](#a) which were found pursuant to such surveys to be not in compliance with any of the requirements of subsections [(b)](#b), [(c)](#c), and [(d)](#d). A [State](/usc/42/1396b.md?p=w-7-D) that is dissatisfied with the [Secretary](/usc/42/1301.md?p=a-6)’s findings under this subparagraph may obtain reconsideration and review of the findings under [section 1316 of this title](/usc/42/1316.md) in the same manner as a [State](/usc/42/1396b.md?p=w-7-D) may seek reconsideration and review under that section of the [Secretary](/usc/42/1301.md?p=a-6)’s determination under [section 1316(a)(1) of this title](/usc/42/1316.md?p=a-1).
    - (D) **Special surveys of compliance—** Where the [Secretary](/usc/42/1301.md?p=a-6) has reason to question the compliance of a [nursing facility](#a) with any of the requirements of subsections [(b)](#b), [(c)](#c), and [(d)](#d), the [Secretary](/usc/42/1301.md?p=a-6) may conduct a survey of the [facility](/usc/42/11049.md?p=4) and, on the basis of that survey, make independent and binding determinations concerning the extent to which the [nursing facility](#a) meets such requirements.
  - (4) **Investigation of complaints and monitoring nursing facility compliance—** Each [State](/usc/42/1396b.md?p=w-7-D) shall maintain procedures and adequate staff to—
    - (A) investigate complaints of [violations](/usc/42/2000e–16a.md?p=c) of requirements by [nursing facilities](#a), and
    - (B) monitor, on-site, on a regular, as needed basis, a [nursing facility](#a)’s compliance with the requirements of subsections [(b)](#b), [(c)](#c), and [(d)](#d), if—
      - (i) the [facility](/usc/42/11049.md?p=4) has been found not to be in compliance with such requirements and is in the process of correcting deficiencies to achieve such compliance;
      - (ii) the [facility](/usc/42/11049.md?p=4) was previously found not to be in compliance with such requirements, has corrected deficiencies to achieve such compliance, and verification of continued compliance is indicated; or
      - (iii) the [State](/usc/42/1396b.md?p=w-7-D) has reason to question the compliance of the [facility](/usc/42/11049.md?p=4) with such requirements.

    A [State](/usc/42/1396b.md?p=w-7-D) may maintain and utilize a specialized team ([including](/usc/42/1301.md?p=b) an attorney, an auditor, and appropriate health care professionals) for the purpose of identifying, surveying, gathering and preserving evidence, and carrying out appropriate [enforcement actions](/usc/42/247d–6d.md?p=c-5-B-i) against substandard [nursing facilities](#a).

  - (5) **Disclosure of results of inspections and activities—**
    - (A) **Public information—** Each [State](/usc/42/1396b.md?p=w-7-D), and the [Secretary](/usc/42/1301.md?p=a-6), shall make available to the public—
      - (i) information respecting all surveys and certifications made respecting [nursing facilities](#a), [including](/usc/42/1301.md?p=b) statements of deficiencies, within 14 calendar days after such information is made available to those [facilities](/usc/42/11049.md?p=4), and approved plans of correction,
      - (ii) copies of cost reports of such [facilities](/usc/42/11049.md?p=4) filed under this subchapter or under subchapter XVIII,
      - (iii) copies of statements of ownership under [section 1320a–3 of this title](/usc/42/1320a–3.md), and
      - (iv) information disclosed under [section 1320a–5 of this title](/usc/42/1320a–5.md).
    - (B) **Notice to ombudsman—** Each [State](/usc/42/1396b.md?p=w-7-D) shall notify the [State long-term care ombudsman](/usc/42/1397j.md?p=22) (established under title III or VII of the Older Americans Act of 1965 [[42 U.S.C. 3021](/usc/42/3021.md) et seq., 3058 et seq.] in accordance with section 712 of the Act [[42 U.S.C. 3058g](/usc/42/3058g.md)]) of the [State](/usc/42/1396b.md?p=w-7-D)’s findings of noncompliance with any of the requirements of subsections [(b)](#b), [(c)](#c), and [(d)](#d), or of any adverse action taken against a [nursing facility](#a) under paragraphs[^5] (1), (2), or (3) of [subsection (h)](#h), with respect to a [nursing facility](#a) in the [State](/usc/42/1396b.md?p=w-7-D).
    - (C) **Notice to physicians and nursing facility administrator licensing board—** If a [State](/usc/42/1396b.md?p=w-7-D) finds that a [nursing facility](#a) has provided substandard quality of care, the [State](/usc/42/1396b.md?p=w-7-D) shall notify—
      - (i) the attending [physician](/usc/42/1301.md?p=a-7) of each resident with respect to which such finding is made, and
      - (ii) any [State](/usc/42/1396b.md?p=w-7-D) [board](/usc/42/10261.md?p=2) responsible for the licensing of the [nursing facility](#a) [administrator](/usc/42/4005.md?p=1) of the [facility](/usc/42/11049.md?p=4).
    - (D) **Access to fraud control units—** Each [State](/usc/42/1396b.md?p=w-7-D) shall provide its [State](/usc/42/1396b.md?p=w-7-D) [medicaid](/usc/42/1396b.md?p=w-3-E-iii-III-aa) fraud and [abuse](/usc/42/1397j.md?p=1) control [unit](/usc/42/1395w–114b.md?p=g-2) (established under [section 1396b(q) of this title](/usc/42/1396b.md?p=q)) with access to all information of the [State agency](/usc/42/1320a–7a.md?p=i-1) responsible for surveys and certifications under this subsection.
    - (E) **Submission of survey and certification information to the Secretary—** In order to improve the timeliness of information made available to the public under [subparagraph (A)](#g-5-A) and provided on the [Nursing Home](/usc/42/1396g.md?p=e-1) Compare Medicare website under [subsection (i)](#i), each [State](/usc/42/1396b.md?p=w-7-D) shall submit information respecting any survey or certification made respecting a [nursing facility](#a) ([including](/usc/42/1301.md?p=b) any [enforcement actions](/usc/42/247d–6d.md?p=c-5-B-i) taken by the [State](/usc/42/1396b.md?p=w-7-D)) to the [Secretary](/usc/42/1301.md?p=a-6) not later than the date on which the [State](/usc/42/1396b.md?p=w-7-D) sends such information to the [facility](/usc/42/11049.md?p=4). The [Secretary](/usc/42/1301.md?p=a-6) shall use the information submitted under the preceding sentence to update the information provided on the [Nursing Home](/usc/42/1396g.md?p=e-1) Compare Medicare website as expeditiously as practicable but not less frequently than quarterly.
- (h) **Enforcement process—**
  - (1) **In general—** If a [State](/usc/42/1396b.md?p=w-7-D) finds, on the basis of a [standard](/usc/42/1320d.md?p=7), extended, or partial extended survey under [subsection (g)(2)](#g-2) or otherwise, that a [nursing facility](#a) no longer meets a requirement of subsection [(b)](#b), [(c)](#c), or [(d)](#d), and further finds that the [facility](/usc/42/11049.md?p=4)’s deficiencies—
    - (A) immediately jeopardize the health or safety of its residents, the [State](/usc/42/1396b.md?p=w-7-D) shall take immediate action to [remove](/usc/42/9601.md?p=23) the jeopardy and correct the deficiencies through the remedy specified in [paragraph (2)(A)(iii)](#h-2-A-iii), or terminate the [facility](/usc/42/11049.md?p=4)’s participation under the [State](/usc/42/1396b.md?p=w-7-D) plan and may provide, in addition, for one or more of the other remedies described in [paragraph (2)](#h-2); or
    - (B) do not immediately jeopardize the health or safety of its residents, the [State](/usc/42/1396b.md?p=w-7-D) may—
      - (i) terminate the [facility](/usc/42/11049.md?p=4)’s participation under the [State](/usc/42/1396b.md?p=w-7-D) plan,
      - (ii) provide for one or more of the remedies described in [paragraph (2)](#h-2), or
      - (iii) do both.

    Nothing in this paragraph shall be construed as restricting the remedies available to a [State](/usc/42/1396b.md?p=w-7-D) to remedy a [nursing facility](#a)’s deficiencies. If a [State](/usc/42/1396b.md?p=w-7-D) finds that a [nursing facility](#a) meets the requirements of subsections [(b)](#b), [(c)](#c), and [(d)](#d), but, as of a previous period, did not meet such requirements, the [State](/usc/42/1396b.md?p=w-7-D) may provide for a civil money penalty under [paragraph (2)(A)(ii)](#h-2-A-ii) for the days in which it finds that the [facility](/usc/42/11049.md?p=4) was not in compliance with such requirements.

  - (2) **Specified remedies—**
    - (A) **Listing—** Except as provided in [subparagraph (B)(ii)](#h-2-B-ii), each [State](/usc/42/1396b.md?p=w-7-D) shall establish by law (whether statute or regulation) at least the following remedies:
      - (i) Denial of payment under the [State](/usc/42/1396b.md?p=w-7-D) plan with respect to any individual admitted to the [nursing facility](#a) involved after such notice to the public and to the [facility](/usc/42/11049.md?p=4) as may be provided for by the [State](/usc/42/1396b.md?p=w-7-D).
      - (ii) A civil money penalty assessed and collected, with interest, for each day in which the [facility](/usc/42/11049.md?p=4) is or was out of compliance with a requirement of subsection [(b)](#b), [(c)](#c), or [(d)](#d). [Funds](/usc/42/12854.md?p=3) collected by a [State](/usc/42/1396b.md?p=w-7-D) as a result of imposition of such a penalty (or as a result of the imposition by the [State](/usc/42/1396b.md?p=w-7-D) of a civil money penalty for activities described in subsections [(b)(3)(B)(ii)(I)](#b-3-B-ii-I), [(b)(3)(B)(ii)(II)](#b-3-B-ii-II), or [(g)(2)(A)(i)](#g-2-A-i)) shall be applied to the protection of the health or property of residents of [nursing facilities](#a) that the [State](/usc/42/1396b.md?p=w-7-D) or the [Secretary](/usc/42/1301.md?p=a-6) finds deficient, [including](/usc/42/1301.md?p=b) payment for the costs of relocation of residents to other [facilities](/usc/42/11049.md?p=4), maintenance of operation of a [facility](/usc/42/11049.md?p=4) pending correction of deficiencies or closure, and reimbursement of residents for personal [funds](/usc/42/12854.md?p=3) lost.
      - (iii) The appointment of temporary management to oversee the operation of the [facility](/usc/42/11049.md?p=4) and to assure the health and safety of the [facility](/usc/42/11049.md?p=4)’s residents, where there is a need for temporary management while—
        - (I) there is an orderly closure of the [facility](/usc/42/11049.md?p=4), or
        - (II) improvements are made in order to bring the [facility](/usc/42/11049.md?p=4) into compliance with all the requirements of subsections [(b)](#b), [(c)](#c), and [(d)](#d).

      The temporary management under this clause shall not be terminated under subclause (II) until the [State](/usc/42/1396b.md?p=w-7-D) has determined that the [facility](/usc/42/11049.md?p=4) has the management capability to ensure continued compliance with all the requirements of subsections [(b)](#b), [(c)](#c), and [(d)](#d).

      - (iv) The authority, in the case of an emergency, to close the [facility](/usc/42/11049.md?p=4), to transfer residents in that [facility](/usc/42/11049.md?p=4) to other [facilities](/usc/42/11049.md?p=4), or both.

      The [State](/usc/42/1396b.md?p=w-7-D) also shall specify criteria, as to when and how each of such remedies is to be applied, the amounts of any fines, and the severity of each of these remedies, to be used in the imposition of such remedies. Such criteria shall be designed so as to minimize the time between the identification of [violations](/usc/42/2000e–16a.md?p=c) and final imposition of the remedies and shall provide for the imposition of incrementally more severe fines for repeated or uncorrected deficiencies. In addition, the [State](/usc/42/1396b.md?p=w-7-D) may provide for other specified remedies, such as directed plans of correction.

    - (B) **Deadline and guidance—**
      - (i) Except as provided in [clause (ii)](#h-2-B-ii), as a condition for approval of a [State](/usc/42/1396b.md?p=w-7-D) plan for calendar quarters beginning on or after October 1, 1989, each [State](/usc/42/1396b.md?p=w-7-D) shall establish the remedies described in [clauses (i) through (iv)](#h-2-A-i..h-2-A-iv) of subparagraph (A) by not later than October 1, 1989. The [Secretary](/usc/42/1301.md?p=a-6) shall provide, through regulations by not later than October 1, 1988, guidance to [States](/usc/42/1396b.md?p=w-7-D) in establishing such remedies; but the failure of the [Secretary](/usc/42/1301.md?p=a-6) to provide such guidance shall not relieve a [State](/usc/42/1396b.md?p=w-7-D) of the responsibility for establishing such remedies.
      - (ii) A [State](/usc/42/1396b.md?p=w-7-D) may establish alternative remedies (other than termination of participation) other than those described in [clauses (i) through (iv)](#h-2-A-i..h-2-A-iv) of subparagraph (A), if the [State](/usc/42/1396b.md?p=w-7-D) demonstrates to the [Secretary](/usc/42/1301.md?p=a-6)’s satisfaction that the alternative remedies are as effective in deterring noncompliance and correcting deficiencies as those described in [subparagraph (A)](#h-2-A).
    - (C) **Assuring prompt compliance—** If a [nursing facility](#a) has not complied with any of the requirements of subsections [(b)](#b), [(c)](#c), and [(d)](#d), within 3 months after the date the [facility](/usc/42/11049.md?p=4) is found to be out of compliance with such requirements, the [State](/usc/42/1396b.md?p=w-7-D) shall impose the remedy described in [subparagraph (A)(i)](#h-2-A-i) for all individuals who are admitted to the [facility](/usc/42/11049.md?p=4) after such date.
    - (D) **Repeated noncompliance—** In the case of a [nursing facility](#a) which, on 3 consecutive [standard](/usc/42/1320d.md?p=7) surveys conducted under [subsection (g)(2)](#g-2), has been found to have provided substandard quality of care, the [State](/usc/42/1396b.md?p=w-7-D) shall (regardless of what other remedies are provided)—
      - (i) impose the remedy described in [subparagraph (A)(i)](#h-2-A-i), and
      - (ii) monitor the [facility](/usc/42/11049.md?p=4) under [subsection (g)(4)(B)](#g-4-B),

      until the [facility](/usc/42/11049.md?p=4) has demonstrated, to the satisfaction of the [State](/usc/42/1396b.md?p=w-7-D), that it is in compliance with the requirements of subsections [(b)](#b), [(c)](#c), and [(d)](#d), and that it will remain in compliance with such requirements.

    - (E) **Funding—** The reasonable expenditures of a [State](/usc/42/1396b.md?p=w-7-D) to provide for temporary management and other expenses associated with implementing the remedies described in clauses [(iii)](#h-2-A-iii) and [(iv)](#h-2-A-iv) of subparagraph (A) shall be considered, for purposes of [section 1396b(a)(7) of this title](/usc/42/1396b.md?p=a-7), to be necessary for the proper and efficient [administration](/usc/42/1301.md?p=a-10) of the [State](/usc/42/1396b.md?p=w-7-D) plan.
    - (F) **Incentives for high quality care—** In addition to the remedies specified in this paragraph, a [State](/usc/42/1396b.md?p=w-7-D) may establish a [program](/usc/42/274l–1.md?p=4) to reward, through public recognition, incentive payments, or both, [nursing facilities](#a) that provide the highest quality care to residents who are entitled to medical assistance under this subchapter. For purposes of [section 1396b(a)(7) of this title](/usc/42/1396b.md?p=a-7), proper expenses incurred by a [State](/usc/42/1396b.md?p=w-7-D) in carrying out such a [program](/usc/42/274l–1.md?p=4) shall be considered to be expenses necessary for the proper and efficient [administration](/usc/42/1301.md?p=a-10) of the [State](/usc/42/1396b.md?p=w-7-D) plan under this subchapter.
  - (3) **Secretarial authority—**
    - (A) **For State nursing facilities—** With respect to a [State](/usc/42/1396b.md?p=w-7-D) [nursing facility](#a), the [Secretary](/usc/42/1301.md?p=a-6) shall have the authority and duties of a [State](/usc/42/1396b.md?p=w-7-D) under this subsection, [including](/usc/42/1301.md?p=b) the authority to impose remedies described in clauses [(i)](#h-2-A-i), [(ii)](#h-2-A-ii), and [(iii)](#h-2-A-iii) of paragraph (2)(A).
    - (B) **Other nursing facilities—** With respect to any other [nursing facility](#a) in a [State](/usc/42/1396b.md?p=w-7-D), if the [Secretary](/usc/42/1301.md?p=a-6) finds that a [nursing facility](#a) no longer meets a requirement of subsection [(b)](#b), [(c)](#c), [(d)](#d), or [(e)](#e), and further finds that the [facility](/usc/42/11049.md?p=4)’s deficiencies—
      - (i) immediately jeopardize the health or safety of its residents, the [Secretary](/usc/42/1301.md?p=a-6) shall take immediate action to [remove](/usc/42/9601.md?p=23) the jeopardy and correct the deficiencies through the remedy specified in [subparagraph (C)(iii)](#h-3-C-iii), or terminate the [facility](/usc/42/11049.md?p=4)’s participation under the [State](/usc/42/1396b.md?p=w-7-D) plan and may provide, in addition, for one or more of the other remedies described in [subparagraph (C)](#h-3-C); or
      - (ii) do not immediately jeopardize the health or safety of its residents, the [Secretary](/usc/42/1301.md?p=a-6) may impose any of the remedies described in [subparagraph (C)](#h-3-C).

      Nothing in this subparagraph shall be construed as restricting the remedies available to the [Secretary](/usc/42/1301.md?p=a-6) to remedy a [nursing facility](#a)’s deficiencies. If the [Secretary](/usc/42/1301.md?p=a-6) finds that a [nursing facility](#a) meets such requirements but, as of a previous period, did not meet such requirements, the [Secretary](/usc/42/1301.md?p=a-6) may provide for a civil money penalty under [subparagraph (C)(ii)](#h-3-C-ii) for the days on which he finds that the [facility](/usc/42/11049.md?p=4) was not in compliance with such requirements.

    - (C) **Specified remedies—** The [Secretary](/usc/42/1301.md?p=a-6) may take the following actions with respect to a finding that a [facility](/usc/42/11049.md?p=4) has not met an applicable requirement:
      - (i) **Denial of payment—** The [Secretary](/usc/42/1301.md?p=a-6) may deny any further payments to the [State](/usc/42/1396b.md?p=w-7-D) for medical assistance furnished by the [facility](/usc/42/11049.md?p=4) to all individuals in the [facility](/usc/42/11049.md?p=4) or to individuals admitted to the [facility](/usc/42/11049.md?p=4) after the effective date of the finding.
      - (ii) **Authority with respect to civil money penalties—**
        - (I) **In general—** Subject to [subclause (II)](#h-3-C-ii-II), the [Secretary](/usc/42/1301.md?p=a-6) may impose a civil money penalty in an amount not to exceed $10,000 for each day of noncompliance. The provisions of [section 1320a–7a of this title](/usc/42/1320a–7a.md) (other than subsections [(a)](#a) and [(b)](#b)) shall apply to a civil money penalty under the previous sentence in the same manner as such provisions apply to a penalty or proceeding under [section 1320a–7a(a) of this title](/usc/42/1320a–7a.md?p=a).
        - (II) **Reduction of civil money penalties in certain circumstances—** Subject to [subclause (III)](#h-3-C-ii-III), in the case where a [facility](/usc/42/11049.md?p=4) self-reports and promptly corrects a deficiency for which a penalty was imposed under this clause not later than 10 calendar days after the date of such imposition, the [Secretary](/usc/42/1301.md?p=a-6) may reduce the amount of the penalty imposed by not more than 50 percent.
        - (III) **Prohibitions on reduction for certain deficiencies—**
          - (aa) **Repeat deficiencies—** The [Secretary](/usc/42/1301.md?p=a-6) may not reduce the amount of a penalty under [subclause (II)](#h-3-C-ii-II) if the [Secretary](/usc/42/1301.md?p=a-6) had reduced a penalty imposed on the [facility](/usc/42/11049.md?p=4) in the preceding year under such subclause with respect to a repeat deficiency.
          - (bb) **Certain other deficiencies—** The [Secretary](/usc/42/1301.md?p=a-6) may not reduce the amount of a penalty under [subclause (II)](#h-3-C-ii-II) if the penalty is imposed on the [facility](/usc/42/11049.md?p=4) for a deficiency that is found to result in a pattern of harm or widespread harm, immediately jeopardizes the health or safety of a resident or residents of the [facility](/usc/42/11049.md?p=4), or results in the death of a resident of the [facility](/usc/42/11049.md?p=4).
        - (IV) **Collection of civil money penalties—** In the case of a civil money penalty imposed under this clause, the [Secretary](/usc/42/1301.md?p=a-6) shall issue regulations that—
          - (aa) subject to item (cc), not later than 30 days after the imposition of the penalty, provide for the [facility](/usc/42/11049.md?p=4) to have the opportunity to participate in an independent informal dispute resolution process which [generates](/usc/42/2021b.md?p=8) a written record prior to the collection of such penalty;
          - (bb) in the case where the penalty is imposed for each day of noncompliance, provide that a penalty may not be imposed for any day during the period beginning on the initial day of the imposition of the penalty and ending on the day on which the informal dispute resolution process under [item (aa)](#h-3-C-ii-IV-aa) is completed;
          - (cc) may provide for the collection of such civil money penalty and the placement of such amounts collected in an escrow account under the direction of the [Secretary](/usc/42/1301.md?p=a-6) on the earlier of the date on which the informal dispute resolution process under [item (aa)](#h-3-C-ii-IV-aa) is completed or the date that is 90 days after the date of the imposition of the penalty;
          - (dd) may provide that such amounts collected are kept in such account pending the resolution of any subsequent appeals;
          - (ee) in the case where the [facility](/usc/42/11049.md?p=4) successfully appeals the penalty, may provide for the return of such amounts collected (plus interest) to the [facility](/usc/42/11049.md?p=4); and
          - (ff) in the case where all such appeals are unsuccessful, may provide that some portion of such amounts collected may be used to support activities that benefit residents, [including](/usc/42/1301.md?p=b) assistance to support and protect residents of a [facility](/usc/42/11049.md?p=4) that closes (voluntarily or involuntarily) or is decertified ([including](/usc/42/1301.md?p=b) offsetting costs of relocating residents to home and community-based settings or another [facility](/usc/42/11049.md?p=4)), [projects](/usc/42/11360.md?p=20) that support resident and [family](/usc/42/290ff–4.md?p=d-2) [councils](/usc/42/300f.md?p=9) and other consumer involvement in assuring quality care in [facilities](/usc/42/11049.md?p=4), and [facility](/usc/42/11049.md?p=4) improvement [initiatives](/usc/42/19131.md?p=1) approved by the [Secretary](/usc/42/1301.md?p=a-6) ([including](/usc/42/1301.md?p=b) joint [training](/usc/42/285e–2.md?p=b-2) of [facility](/usc/42/11049.md?p=4) staff and surveyors, technical assistance for [facilities](/usc/42/11049.md?p=4) implementing quality assurance [programs](/usc/42/274l–1.md?p=4), the appointment of temporary management firms, and other activities approved by the [Secretary](/usc/42/1301.md?p=a-6)).
      - (iii) **Appointment of temporary management—** In consultation with the [State](/usc/42/1396b.md?p=w-7-D), the [Secretary](/usc/42/1301.md?p=a-6) may appoint temporary management to oversee the operation of the [facility](/usc/42/11049.md?p=4) and to assure the health and safety of the [facility](/usc/42/11049.md?p=4)’s residents, where there is a need for temporary management while—
        - (I) there is an orderly closure of the [facility](/usc/42/11049.md?p=4), or
        - (II) improvements are made in order to bring the [facility](/usc/42/11049.md?p=4) into compliance with all the requirements of subsections [(b)](#b), [(c)](#c), and [(d)](#d).

      The temporary management under this clause shall not be terminated under subclause (II) until the [Secretary](/usc/42/1301.md?p=a-6) has determined that the [facility](/usc/42/11049.md?p=4) has the management capability to ensure continued compliance with all the requirements of subsections [(b)](#b), [(c)](#c), and [(d)](#d).

      The [Secretary](/usc/42/1301.md?p=a-6) shall specify criteria, as to when and how each of such remedies is to be applied, the amounts of any fines, and the severity of each of these remedies, to be used in the imposition of such remedies. Such criteria shall be designed so as to minimize the time between the identification of [violations](/usc/42/2000e–16a.md?p=c) and final imposition of the remedies and shall provide for the imposition of incrementally more severe fines for repeated or uncorrected deficiencies. In addition, the [Secretary](/usc/42/1301.md?p=a-6) may provide for other specified remedies, such as directed plans of correction.

    - (D) **Continuation of payments pending remediation—** The [Secretary](/usc/42/1301.md?p=a-6) may continue payments, over a period of not longer than 6 months after the effective date of the findings, under this subchapter with respect to a [nursing facility](#a) not in compliance with a requirement of subsection [(b)](#b), [(c)](#c), or [(d)](#d), if—
      - (i) the [State](/usc/42/1396b.md?p=w-7-D) survey [agency](/usc/42/1397n–12.md?p=1) finds that it is more appropriate to take alternative action to assure compliance of the [facility](/usc/42/11049.md?p=4) with the requirements than to terminate the certification of the [facility](/usc/42/11049.md?p=4), and
      - (ii) the [State](/usc/42/1396b.md?p=w-7-D) has submitted a plan and timetable for corrective action to the [Secretary](/usc/42/1301.md?p=a-6) for approval and the [Secretary](/usc/42/1301.md?p=a-6) approves the plan of corrective action.

      The [Secretary](/usc/42/1301.md?p=a-6) shall establish guidelines for approval of corrective actions requested by [States](/usc/42/1396b.md?p=w-7-D) under this subparagraph.

  - (4) **Effective period of denial of payment—** A finding to deny payment under this subsection shall terminate when the [State](/usc/42/1396b.md?p=w-7-D) or [Secretary](/usc/42/1301.md?p=a-6) (or both, as the case may be) finds that the [facility](/usc/42/11049.md?p=4) is in substantial compliance with all the requirements of subsections [(b)](#b), [(c)](#c), and [(d)](#d).
  - (5) **Immediate termination of participation for facility where State or Secretary finds noncompliance and immediate jeopardy—** If either the [State](/usc/42/1396b.md?p=w-7-D) or the [Secretary](/usc/42/1301.md?p=a-6) finds that a [nursing facility](#a) has not met a requirement of subsection [(b)](#b), [(c)](#c), or [(d)](#d), and finds that the failure immediately jeopardizes the health or safety of its residents, the [State](/usc/42/1396b.md?p=w-7-D) or the [Secretary](/usc/42/1301.md?p=a-6), respectively[^6] shall notify the other of such finding, and the [State](/usc/42/1396b.md?p=w-7-D) or the [Secretary](/usc/42/1301.md?p=a-6), respectively, shall take immediate action to [remove](/usc/42/9601.md?p=23) the jeopardy and correct the deficiencies through the remedy specified in paragraph [(2)(A)(iii)](#h-2-A-iii) or [(3)(C)(iii)](#h-3-C-iii), or terminate the [facility](/usc/42/11049.md?p=4)’s participation under the [State](/usc/42/1396b.md?p=w-7-D) plan. If the [facility](/usc/42/11049.md?p=4)’s participation in the [State](/usc/42/1396b.md?p=w-7-D) plan is terminated by either the [State](/usc/42/1396b.md?p=w-7-D) or the [Secretary](/usc/42/1301.md?p=a-6), the [State](/usc/42/1396b.md?p=w-7-D) shall provide for the safe and orderly transfer of the residents eligible under the [State](/usc/42/1396b.md?p=w-7-D) plan consistent with the requirements of [subsection (c)(2)](#c-2).
  - (6) **Special rules where State and Secretary do not agree on finding of noncompliance—**
    - (A) **State finding of noncompliance and no secretarial finding of noncompliance—** If the [Secretary](/usc/42/1301.md?p=a-6) finds that a [nursing facility](#a) has met all the requirements of subsections [(b)](#b), [(c)](#c), and [(d)](#d), but a [State](/usc/42/1396b.md?p=w-7-D) finds that the [facility](/usc/42/11049.md?p=4) has not met such requirements and the failure does not immediately jeopardize the health or safety of its residents, the [State](/usc/42/1396b.md?p=w-7-D)’s findings shall control and the remedies imposed by the [State](/usc/42/1396b.md?p=w-7-D) shall be applied.
    - (B) **Secretarial finding of noncompliance and no State finding of noncompliance—** If the [Secretary](/usc/42/1301.md?p=a-6) finds that a [nursing facility](#a) has not met all the requirements of subsections [(b)](#b), [(c)](#c), and [(d)](#d), and that the failure does not immediately jeopardize the health or safety of its residents, but the [State](/usc/42/1396b.md?p=w-7-D) has not made such a finding, the [Secretary](/usc/42/1301.md?p=a-6)—
      - (i) may impose any remedies specified in [paragraph (3)(C)](#h-3-C) with respect to the [facility](/usc/42/11049.md?p=4), and
      - (ii) shall (pending any termination by the [Secretary](/usc/42/1301.md?p=a-6)) permit continuation of payments in accordance with [paragraph (3)(D)](#h-3-D).
  - (7) **Special rules for timing of termination of participation where remedies overlap—** If both the [Secretary](/usc/42/1301.md?p=a-6) and the [State](/usc/42/1396b.md?p=w-7-D) find that a [nursing facility](#a) has not met all the requirements of subsections [(b)](#b), [(c)](#c), and [(d)](#d), and neither finds that the failure immediately jeopardizes the health or safety of its residents—
    - (A)
      - (i) if both find that the [facility](/usc/42/11049.md?p=4)’s participation under the [State](/usc/42/1396b.md?p=w-7-D) plan should be terminated, the [State](/usc/42/1396b.md?p=w-7-D)’s timing of any termination shall control so long as the termination date does not occur later than 6 months after the date of the finding to terminate;
      - (ii) if the [Secretary](/usc/42/1301.md?p=a-6), but not the [State](/usc/42/1396b.md?p=w-7-D), finds that the [facility](/usc/42/11049.md?p=4)’s participation under the [State](/usc/42/1396b.md?p=w-7-D) plan should be terminated, the [Secretary](/usc/42/1301.md?p=a-6) shall (pending any termination by the [Secretary](/usc/42/1301.md?p=a-6)) permit continuation of payments in accordance with [paragraph (3)(D)](#h-3-D); or
      - (iii) if the [State](/usc/42/1396b.md?p=w-7-D), but not the [Secretary](/usc/42/1301.md?p=a-6), finds that the [facility](/usc/42/11049.md?p=4)’s participation under the [State](/usc/42/1396b.md?p=w-7-D) plan should be terminated, the [State](/usc/42/1396b.md?p=w-7-D)’s decision to terminate, and timing of such termination, shall control; and
    - (B)
      - (i) if the [Secretary](/usc/42/1301.md?p=a-6) or the [State](/usc/42/1396b.md?p=w-7-D), but not both, establishes one or more remedies which are additional or alternative to the remedy of terminating the [facility](/usc/42/11049.md?p=4)’s participation under the [State](/usc/42/1396b.md?p=w-7-D) plan, such additional or alternative remedies shall also be applied, or
      - (ii) if both the [Secretary](/usc/42/1301.md?p=a-6) and the [State](/usc/42/1396b.md?p=w-7-D) establish one or more remedies which are additional or alternative to the remedy of terminating the [facility](/usc/42/11049.md?p=4)’s participation under the [State](/usc/42/1396b.md?p=w-7-D) plan, only the additional or alternative remedies of the [Secretary](/usc/42/1301.md?p=a-6) shall apply.
  - (8) **Construction—** The remedies provided under this subsection are in addition to those otherwise available under [State](/usc/42/1396b.md?p=w-7-D) or Federal law and shall not be construed as limiting such other remedies, [including](/usc/42/1301.md?p=b) any remedy available to an individual at common law. The remedies described in clauses [(i)](#i), (ii)(IV),[^7] (iii), and (iv) of [paragraph (2)(A)](#h-2-A) may be imposed during the pendency of any hearing. The provisions of this subsection shall apply to a [nursing facility](#a) (or portion thereof) notwithstanding that the [facility](/usc/42/11049.md?p=4) (or portion thereof) also is a [skilled nursing facility](/usc/42/1395x.md?p=j) for purposes of subchapter XVIII.
  - (9) **Sharing of information—** Notwithstanding any other provision of law, all information concerning [nursing facilities](#a) required by this section to be filed with the [Secretary](/usc/42/1301.md?p=a-6) or a [State agency](/usc/42/1320a–7a.md?p=i-1) shall be made available by such [facilities](/usc/42/11049.md?p=4) to Federal or [State](/usc/42/1396b.md?p=w-7-D) [employees](/usc/42/1320a–7h.md?p=e-7) for purposes consistent with the effective [administration](/usc/42/1301.md?p=a-10) of [programs](/usc/42/274l–1.md?p=4) established under this subchapter and subchapter XVIII, [including](/usc/42/1301.md?p=b) investigations by [State](/usc/42/1396b.md?p=w-7-D) [medicaid](/usc/42/1396b.md?p=w-3-E-iii-III-aa) fraud control [units](/usc/42/1395w–114b.md?p=g-2).
- (i) **Nursing Home Compare website—**
  - (1) **Inclusion of additional information—**
    - (A) **In general—** The [Secretary](/usc/42/1301.md?p=a-6) shall ensure that the Department of Health and Human Services [includes](/usc/42/1301.md?p=b), as part of the information provided for comparison of [nursing homes](/usc/42/1396g.md?p=e-1) on the official Internet website of the Federal Government for Medicare beneficiaries (commonly referred to as the “[Nursing Home](/usc/42/1396g.md?p=e-1) Compare” Medicare website) (or a successor website), the following information in a manner that is prominent, updated on a timely basis, easily accessible, readily understandable to consumers of [long-term care](/usc/42/1397j.md?p=14-A) services, and searchable:
      - (i) Staffing data for each [facility](/usc/42/11049.md?p=4) ([including](/usc/42/1301.md?p=b) resident census data and data on the hours of care provided per resident per day) based on data submitted under [section 1320a–7j(g) of this title](/usc/42/1320a–7j.md?p=g), [including](/usc/42/1301.md?p=b) information on staffing turnover and tenure, in a format that is clearly understandable to consumers of [long-term care](/usc/42/1397j.md?p=14-A) services and allows such consumers to compare differences in staffing between [facilities](/usc/42/11049.md?p=4) and [State](/usc/42/1396b.md?p=w-7-D) and national averages for the [facilities](/usc/42/11049.md?p=4). Such format shall include—
        - (I) concise explanations of how to interpret the data (such as plain English explanation of data reflecting “[nursing home](/usc/42/1396g.md?p=e-1) staff hours per resident day”);
        - (II) differences in types of staff (such as [training](/usc/42/285e–2.md?p=b-2) associated with different [categories](/usc/42/1395w–4.md?p=j-1) of staff);
        - (III) the relationship between nurse staffing levels and quality of care; and
        - (IV) an explanation that appropriate staffing levels vary based on patient case mix.
      - (ii) Links to [State](/usc/42/1396b.md?p=w-7-D) Internet websites with information regarding [State](/usc/42/1396b.md?p=w-7-D) survey and certification [programs](/usc/42/274l–1.md?p=4), links to Form 2567 [State](/usc/42/1396b.md?p=w-7-D) [inspection](/usc/42/4851b.md?p=12) reports (or a successor form) on such websites, information to guide consumers in how to interpret and understand such reports, and the [facility](/usc/42/11049.md?p=4) plan of correction or other response to such report. Any such links shall be posted on a timely basis.
      - (iii) The standardized complaint form developed under [section 1320a–7j(f) of this title](/usc/42/1320a–7j.md?p=f), [including](/usc/42/1301.md?p=b) explanatory material on what complaint forms are, how they are used, and how to file a complaint with the [State](/usc/42/1396b.md?p=w-7-D) survey and certification [program](/usc/42/274l–1.md?p=4) and the [State long-term care ombudsman](/usc/42/1397j.md?p=22) [program](/usc/42/274l–1.md?p=4).
      - (iv) Summary information on the number, type, severity, and outcome of substantiated complaints.
      - (v) The number of adjudicated instances of criminal [violations](/usc/42/2000e–16a.md?p=c) by a [facility](/usc/42/11049.md?p=4) or the [employees](/usc/42/1320a–7h.md?p=e-7) of a [facility](/usc/42/11049.md?p=4)—
        - (I) that were committed inside of the [facility](/usc/42/11049.md?p=4); and
        - (II) with respect to such instances of [violations](/usc/42/2000e–16a.md?p=c) or crimes committed outside of the [facility](/usc/42/11049.md?p=4), that were [violations](/usc/42/2000e–16a.md?p=c) or crimes that resulted in the [serious bodily injury](/usc/42/1397j.md?p=19-A) of an [elder](/usc/42/1397j.md?p=5).
    - (B) **Deadline for provision of information—**
      - (i) **In general—** Except as provided in [clause (ii)](#i-1-B-ii), the [Secretary](/usc/42/1301.md?p=a-6) shall ensure that the information described in [subparagraph (A)](#i-1-A) is included on such website (or a successor website) not later than 1 year after March 23, 2010.
      - (ii) **Exception—** The [Secretary](/usc/42/1301.md?p=a-6) shall ensure that the information described in [subparagraph (A)(i)](#i-1-A-i) is included on such website (or a successor website) not later than the date on which the requirements under [section 1320a–7j(g) of this title](/usc/42/1320a–7j.md?p=g) are implemented.
  - (2) **Review and modification of website—**
    - (A) **In general—** The [Secretary](/usc/42/1301.md?p=a-6) shall establish a process—
      - (i) to review the accuracy, clarity of presentation, timeliness, and comprehensiveness of information reported on such website as of the day before March 23, 2010; and
      - (ii) not later than 1 year after March 23, 2010, to modify or revamp such website in accordance with the review conducted under [clause (i)](#i-2-A-i).
    - (B) **Consultation—** In conducting the review under [subparagraph (A)(i)](#i-2-A-i), the [Secretary](/usc/42/1301.md?p=a-6) shall consult with—
      - (i) [State long-term care ombudsman](/usc/42/1397j.md?p=22) [programs](/usc/42/274l–1.md?p=4);
      - (ii) consumer advocacy groups;
      - (iii) provider stakeholder groups;
      - (iv) [skilled nursing facility](/usc/42/1395x.md?p=j) [employees](/usc/42/1320a–7h.md?p=e-7) and their [representatives](/usc/42/3058f.md?p=5); and
      - (v) any other [representatives](/usc/42/3058f.md?p=5) of [programs](/usc/42/274l–1.md?p=4) or groups the [Secretary](/usc/42/1301.md?p=a-6) determines appropriate.
- (j) **Construction—** Where requirements or obligations under this section are identical to those provided under [section 1395i–3 of this title](/usc/42/1395i–3.md), the fulfillment of those requirements or obligations under [section 1395i–3 of this title](/usc/42/1395i–3.md) shall be considered to be the fulfillment of the corresponding requirements or obligations under this section.
- (k) **Funding for State strike teams—** In addition to amounts otherwise available, there is appropriated to the [Secretary](/usc/42/1301.md?p=a-6), out of any monies in the Treasury not otherwise appropriated, $250,000,000, to remain available until expended, for purposes of allocating such amount among the [States](/usc/42/1396b.md?p=w-7-D) ([including](/usc/42/1301.md?p=b) the District of Columbia and each territory of the [United States](/usc/42/1301.md?p=a-2)) for such a [State](/usc/42/1396b.md?p=w-7-D) to establish and implement a strike team that will be deployed to a [nursing facility](#a) in the [State](/usc/42/1396b.md?p=w-7-D) with diagnosed or suspected cases of COVID–19 among residents or staff for the purposes of assisting with clinical care, infection control, or staffing during the emergency period described in [section 1320b–5(g)(1)(B) of this title](/usc/42/1320b–5.md?p=g-1-B) and the 1-year period immediately following the end of such emergency period.

# §1396r–1. Presumptive eligibility for pregnant women

- (a) **Ambulatory prenatal care—** A [State](/usc/42/1396b.md?p=w-7-D) plan approved under [section 1396a of this title](/usc/42/1396a.md) may provide for making ambulatory prenatal care available to a pregnant woman during a [presumptive eligibility period](#b-1).
- (b) **Definitions—** For purposes of this section—
  - (1) the term “presumptive eligibility period” means, with respect to a pregnant woman, the period that—
    - (A) begins with the date on which a [qualified provider](#b-2) determines, on the basis of preliminary information, that the [family](/usc/42/290ff–4.md?p=d-2) [income](/usc/42/292s.md?p=c-4) of the woman does not exceed the applicable [income](/usc/42/292s.md?p=c-4) level of eligibility under the [State](/usc/42/1396b.md?p=w-7-D) plan, and
    - (B) ends with (and [includes](/usc/42/1301.md?p=b)) the earlier of—
      - (i) the day on which a determination is made with respect to the eligibility of the woman for medical assistance under the [State](/usc/42/1396b.md?p=w-7-D) plan, or
      - (ii) in the case of a woman who does not file an application by the last day of the month following the month during which the provider makes the determination referred to in [subparagraph (A)](#b-1-A), such last day; and
  - (2) the term “qualified provider” means any provider that—
    - (A) is eligible for payments under a [State](/usc/42/1396b.md?p=w-7-D) plan approved under this subchapter,
    - (B) provides services of the type described in subparagraph (A) or (B) of [section 1396d(a)(2) of this title](/usc/42/1396d.md?p=a-2) or in [section 1396d(a)(9) of this title](/usc/42/1396d.md?p=a-9),
    - (C) is determined by the [State agency](/usc/42/1320a–7a.md?p=i-1) to be capable of making determinations of the type described in [paragraph (1)(A)](#b-1-A), and
    - (D)
      - (i) receives [funds](/usc/42/12854.md?p=3) under—
        - (I) section [254b](/usc/42/254b.md) or [254c](/usc/42/254c.md) of this title,
        - (II) subchapter V of this chapter, or
        - (III) title V of the [Indian](/usc/42/6862.md?p=6) Health Care Improvement Act [[25 U.S.C. 1651](/usc/25/1651.md) et seq.];
      - (ii) participates in a [program](/usc/42/274l–1.md?p=4) established under—
        - (I) [section 1786 of this title](/usc/42/1786.md), or
        - (II) [section 4(a)](/usc/42/4.md) of the Agriculture and Consumer Protection Act of 1973;
      - (iii) participates in a [State](/usc/42/1396b.md?p=w-7-D) perinatal [program](/usc/42/274l–1.md?p=4); or
      - (iv) is the [Indian](/usc/42/6862.md?p=6) Health Service or is a health [program](/usc/42/274l–1.md?p=4) or [facility](/usc/42/11049.md?p=4) operated by a tribe or [tribal organization](/usc/42/629a.md?p=a-6) under the [Indian](/usc/42/6862.md?p=6) Self-Determination Act (Public Law 93–638) [[25 U.S.C. 5321](/usc/25/5321.md) et seq.].

  The term “[qualified provider](#b-2)” also [includes](/usc/42/1301.md?p=b) a qualified entity, as defined in [section 1396r–1a(b)(3) of this title](/usc/42/1396r–1a.md?p=b-3).

- (c) **Duties of State agency, qualified providers, and presumptively eligible pregnant women—**
  - (1) The [State agency](/usc/42/1320a–7a.md?p=i-1) shall provide [qualified providers](#b-2) with—
    - (A) such forms as are necessary for a pregnant woman to make application for medical assistance under the [State](/usc/42/1396b.md?p=w-7-D) plan, and
    - (B) information on how to assist such women in completing and filing such forms.
  - (2) A [qualified provider](#b-2) that determines under [subsection (b)(1)(A)](#b-1-A) that a pregnant woman is presumptively eligible for medical assistance under a [State](/usc/42/1396b.md?p=w-7-D) plan shall—
    - (A) notify the [State agency](/usc/42/1320a–7a.md?p=i-1) of the determination within 5 working days after the date on which determination is made, and
    - (B) inform the woman at the time the determination is made that she is required to make application for medical assistance under the [State](/usc/42/1396b.md?p=w-7-D) plan by not later than the last day of the month following the month during which the determination is made.
  - (3) A pregnant woman who is determined by a [qualified provider](#b-2) to be presumptively eligible for medical assistance under a [State](/usc/42/1396b.md?p=w-7-D) plan shall make application for medical assistance under such plan by not later than the last day of the month following the month during which the determination is made, which application may be the application used for the receipt of medical assistance by individuals described in [section 1396a(l)(1)(A)](/usc/42/1396a.md?p=l-1-A) of this title.
- (d) **Ambulatory prenatal care as medical assistance—** Notwithstanding any other provision of this subchapter, ambulatory prenatal care that—
  - (1) is furnished to a pregnant woman—
    - (A) during a [presumptive eligibility period](#b-1),
    - (B) by a provider that is eligible for payments under the [State](/usc/42/1396b.md?p=w-7-D) plan; and
  - (2) is included in the care and services covered by a [State](/usc/42/1396b.md?p=w-7-D) plan;

  shall be treated as medical assistance provided by such plan for purposes of [section 1396b of this title](/usc/42/1396b.md).

- (e) **Option to provide presumptive eligibility—** If the [State](/usc/42/1396b.md?p=w-7-D) has elected the option to provide a [presumptive eligibility period](#b-1) under this section or [section 1396r–1a of this title](/usc/42/1396r–1a.md), the [State](/usc/42/1396b.md?p=w-7-D) may elect to provide a [presumptive eligibility period](#b-1) (as defined in [subsection (b)(1)](#b-1)) for individuals who are eligible for medical assistance under clause (i)(VIII), clause (i)(IX), or clause (ii)(XX) of subsection (a)(10)(A)[^1] or [section 1396u–1 of this title](/usc/42/1396u–1.md) in the same manner as the [State](/usc/42/1396b.md?p=w-7-D) provides for such a period under this section or [section 1396r–1a of this title](/usc/42/1396r–1a.md), subject to such guidance as the [Secretary](/usc/42/1301.md?p=a-6) shall establish.

# §1396r–1a. Presumptive eligibility for children

- (a) **In general—** A [State](/usc/42/1396b.md?p=w-7-D) plan approved under [section 1396a of this title](/usc/42/1396a.md) may provide for making medical assistance with respect to health care items and services covered under the [State](/usc/42/1396b.md?p=w-7-D) plan available to a [child](#b-1) during a [presumptive eligibility period](#b-2).
- (b) **Definitions; regulations—** For purposes of this section:
  - (1) The term “child” means an individual under 19 years of age.
  - (2) The term “presumptive eligibility period” means, with respect to a [child](#b-1), the period that—
    - (A) begins with the date on which a [qualified entity](#b-3-A) determines, on the basis of preliminary information, that the [family](/usc/42/290ff–4.md?p=d-2) [income](/usc/42/292s.md?p=c-4) of the [child](#b-1) does not exceed the applicable [income](/usc/42/292s.md?p=c-4) level of eligibility under the [State](/usc/42/1396b.md?p=w-7-D) plan, and
    - (B) ends with (and [includes](/usc/42/1301.md?p=b)) the earlier of—
      - (i) the day on which a determination is made with respect to the eligibility of the [child](#b-1) for medical assistance under the [State](/usc/42/1396b.md?p=w-7-D) plan, or
      - (ii) in the case of a [child](#b-1) on whose behalf an application is not filed by the last day of the month following the month during which the entity makes the determination referred to in [subparagraph (A)](#b-2-A), such last day.
  - (3)
    - (A) Subject to [subparagraph (B)](#b-3-B), the term “qualified entity” means any entity that—
      - (i)
        - (I) is eligible for payments under a [State](/usc/42/1396b.md?p=w-7-D) plan approved under this subchapter and provides items and services described in subsection [(a)](#a), (II) is authorized to determine eligibility of a [child](#b-1) to participate in a Head Start [program](/usc/42/274l–1.md?p=4) under the Head Start Act ([42 U.S.C. 9831](/usc/42/9831.md) et seq.), eligibility of a [child](#b-1) to receive [child](#b-1) care services for which financial assistance is provided under the [Child](#b-1) Care and Development Block Grant Act of 1990 [[42 U.S.C. 9857](/usc/42/9857.md) et seq.], eligibility of an infant or [child](#b-1) to receive assistance under the special supplemental nutrition [program](/usc/42/274l–1.md?p=4) for women, infants, and [children](/usc/42/256e.md?p=g-2) (WIC) under [section 1786 of this title](/usc/42/1786.md)[^1] eligibility of a [child](#b-1) for medical assistance under the [State](/usc/42/1396b.md?p=w-7-D) plan under this subchapter, or eligibility of a [child](#b-1) for [child health assistance](/usc/42/1397ll.md?p=d-1) under the [program](/usc/42/274l–1.md?p=4) funded under subchapter XXI, (III) is an elementary [school](/usc/42/6372.md?p=1) or secondary [school](/usc/42/6372.md?p=1), as such terms are defined in [section 8801 of title 20](https://uscode.house.gov/view.xhtml?req=(/us/usc/t20/s8801)),[^2] an elementary or secondary [school](/usc/42/6372.md?p=1) operated or supported by the Bureau of [Indian](/usc/42/6862.md?p=6) Affairs, a [State](/usc/42/1396b.md?p=w-7-D) or tribal [child](#b-1) support enforcement [agency](/usc/42/1397n–12.md?p=1), an organization that is providing emergency food and shelter under a [grant](/usc/42/1397j.md?p=10) under the Stewart B. McKinney Homeless Assistance Act[^2] [[42 U.S.C. 11301](/usc/42/11301.md) et seq.], or a [State](/usc/42/1396b.md?p=w-7-D) or tribal [office](/usc/42/3058f.md?p=1) or entity involved in enrollment in the [program](/usc/42/274l–1.md?p=4) under this subchapter, under part A of subchapter IV, under subchapter XXI, or that determines eligibility for any assistance or benefits provided under any [program](/usc/42/274l–1.md?p=4) of public or assisted [housing](/usc/42/1490p–2.md?p=r-3) that receives Federal [funds](/usc/42/12854.md?p=3), [including](/usc/42/1301.md?p=b) the [program](/usc/42/274l–1.md?p=4) under section 8 [[42 U.S.C. 1437f](/usc/42/1437f.md)] or any other section of the [United States](/usc/42/1301.md?p=a-2) Housing Act of 1937 ([42 U.S.C. 1437](/usc/42/1437.md) et seq.) or under the Native American [Housing Assistance](/usc/42/13641.md?p=3) and Self-Determination Act of 1996 ([25 U.S.C. 4101](/usc/25/4101.md) et seq.), or (IV) any other entity the [State](/usc/42/1396b.md?p=w-7-D) so deems, as approved by the [Secretary](/usc/42/1301.md?p=a-6); and
      - (ii) is determined by the [State agency](/usc/42/1320a–7a.md?p=i-1) to be capable of making determinations of the type described in [paragraph (2)](#b-2).
    - (B) The [Secretary](/usc/42/1301.md?p=a-6) may issue regulations further limiting those entities that may become [qualified entities](#b-3-A) in order to prevent fraud and [abuse](/usc/42/1397j.md?p=1) and for other reasons.
    - (C) Nothing in this section shall be construed as preventing a [State](/usc/42/1396b.md?p=w-7-D) from limiting the classes of entities that may become [qualified entities](#b-3-A), consistent with any limitations imposed under [subparagraph (B)](#b-3-B).
- (c) **Application for medical assistance; procedure upon determination of presumptive eligibility—**
  - (1) The [State agency](/usc/42/1320a–7a.md?p=i-1) shall provide [qualified entities](#b-3-A) with—
    - (A) such forms as are necessary for an application to be made on behalf of a [child](#b-1) for medical assistance under the [State](/usc/42/1396b.md?p=w-7-D) plan, and
    - (B) information on how to assist [parents](/usc/42/1396a.md?p=k-3), guardians, and other [persons](/usc/42/1301.md?p=a-3) in completing and filing such forms.
  - (2) A [qualified entity](#b-3-A) that determines under [subsection (b)(2)](#b-2) that a [child](#b-1) is presumptively eligible for medical assistance under a [State](/usc/42/1396b.md?p=w-7-D) plan shall—
    - (A) notify the [State agency](/usc/42/1320a–7a.md?p=i-1) of the determination within 5 working days after the date on which determination is made, and
    - (B) inform the [parent](/usc/42/1396a.md?p=k-3) or custodian of the [child](#b-1) at the time the determination is made that an application for medical assistance under the [State](/usc/42/1396b.md?p=w-7-D) plan is required to be made by not later than the last day of the month following the month during which the determination is made.
  - (3) In the case of a [child](#b-1) who is determined by a [qualified entity](#b-3-A) to be presumptively eligible for medical assistance under a [State](/usc/42/1396b.md?p=w-7-D) plan, the [parent](/usc/42/1396a.md?p=k-3), guardian, or other [person](/usc/42/1301.md?p=a-3) shall make application on behalf of the [child](#b-1) for medical assistance under such plan by not later than the last day of the month following the month during which the determination is made, which application may be the application used for the receipt of medical assistance by individuals described in [section 1396a(l)(1)](/usc/42/1396a.md?p=l-1) of this title.
- (d) **Treatment of medical assistance—** Notwithstanding any other provision of this subchapter, medical assistance for items and services described in [subsection (a)](#a) that—
  - (1) are furnished to a [child](#b-1)—
    - (A) during a [presumptive eligibility period](#b-2),
    - (B) by an entity that is eligible for payments under the [State](/usc/42/1396b.md?p=w-7-D) plan; and
  - (2) are included in the care and services covered by a [State](/usc/42/1396b.md?p=w-7-D) plan;

  shall be treated as medical assistance provided by such plan for purposes of [section 1396b of this title](/usc/42/1396b.md).


# §1396r–1b. Presumptive eligibility for certain breast or cervical cancer patients

- (a) **State option—** A [State](/usc/42/1396b.md?p=w-7-D) plan approved under [section 1396a of this title](/usc/42/1396a.md) may provide for making medical assistance available to an individual described in [section 1396a(aa) of this title](/usc/42/1396a.md?p=aa) (relating to certain breast or cervical cancer patients) during a [presumptive eligibility period](#b-1).
- (b) **Definitions—** For purposes of this section:
  - (1) **Presumptive eligibility period—** The term “presumptive eligibility period” means, with respect to an individual described in [subsection (a)](#a), the period that—
    - (A) begins with the date on which a [qualified entity](#b-2-A) determines, on the basis of preliminary information, that the individual is described in [section 1396a(aa) of this title](/usc/42/1396a.md?p=aa); and
    - (B) ends with (and [includes](/usc/42/1301.md?p=b)) the earlier of—
      - (i) the day on which a determination is made with respect to the eligibility of such individual for services under the [State](/usc/42/1396b.md?p=w-7-D) plan; or
      - (ii) in the case of such an individual who does not file an application by the last day of the month following the month during which the entity makes the determination referred to in [subparagraph (A)](#b-1-A), such last day.
  - (2) **Qualified entity—**
    - (A) **In general—** Subject to [subparagraph (B)](#b-2-B), the term “qualified entity” means any entity that—
      - (i) is eligible for payments under a [State](/usc/42/1396b.md?p=w-7-D) plan approved under this subchapter; and
      - (ii) is determined by the [State agency](/usc/42/1320a–7a.md?p=i-1) to be capable of making determinations of the type described in [paragraph (1)(A)](#b-1-A).
    - (B) **Regulations—** The [Secretary](/usc/42/1301.md?p=a-6) may issue regulations further limiting those entities that may become [qualified entities](#b-2-A) in order to prevent fraud and [abuse](/usc/42/1397j.md?p=1) and for other reasons.
    - (C) **Rule of construction—** Nothing in this paragraph shall be construed as preventing a [State](/usc/42/1396b.md?p=w-7-D) from limiting the classes of entities that may become [qualified entities](#b-2-A), consistent with any limitations imposed under [subparagraph (B)](#b-2-B).
- (c) **Administration—**
  - (1) **In general—** The [State agency](/usc/42/1320a–7a.md?p=i-1) shall provide [qualified entities](#b-2-A) with—
    - (A) such forms as are necessary for an application to be made by an individual described in [subsection (a)](#a) for medical assistance under the [State](/usc/42/1396b.md?p=w-7-D) plan; and
    - (B) information on how to assist such individuals in completing and filing such forms.
  - (2) **Notification requirements—** A [qualified entity](#b-2-A) that determines under [subsection (b)(1)(A)](#b-1-A) that an individual described in [subsection (a)](#a) is presumptively eligible for medical assistance under a [State](/usc/42/1396b.md?p=w-7-D) plan shall—
    - (A) notify the [State agency](/usc/42/1320a–7a.md?p=i-1) of the determination within 5 working days after the date on which determination is made; and
    - (B) inform such individual at the time the determination is made that an application for medical assistance under the [State](/usc/42/1396b.md?p=w-7-D) plan is required to be made by not later than the last day of the month following the month during which the determination is made.
  - (3) **Application for medical assistance—** In the case of an individual described in [subsection (a)](#a) who is determined by a [qualified entity](#b-2-A) to be presumptively eligible for medical assistance under a [State](/usc/42/1396b.md?p=w-7-D) plan, the individual shall apply for medical assistance under such plan by not later than the last day of the month following the month during which the determination is made.
- (d) **Payment—** Notwithstanding any other provision of this subchapter, medical assistance that—
  - (1) is furnished to an individual described in [subsection (a)](#a)—
    - (A) during a presumptive eligibility period;
    - (B) by a[^1] entity that is eligible for payments under the [State](/usc/42/1396b.md?p=w-7-D) plan; and
  - (2) is included in the care and services covered by the [State](/usc/42/1396b.md?p=w-7-D) plan,

  shall be treated as medical assistance provided by such plan for purposes of clause (4) of the first sentence of [section 1396d(b) of this title](/usc/42/1396d.md?p=b).


# §1396r–1c. Presumptive eligibility for family planning services

- (a) **State option—** [State](/usc/42/1396b.md?p=w-7-D)[^1] plan approved under [section 1396a of this title](/usc/42/1396a.md) may provide for making medical assistance available to an individual described in [section 1396a(ii) of this title](/usc/42/1396a.md?p=ii) (relating to individuals who meet certain [income](/usc/42/292s.md?p=c-4) eligibility [standard](/usc/42/1320d.md?p=7)) during a [presumptive eligibility period](#b-1). In the case of an individual described in [section 1396a(ii) of this title](/usc/42/1396a.md?p=ii), such medical assistance shall be limited to [family](/usc/42/290ff–4.md?p=d-2) planning services and supplies described in 1396d(a)(4)(C)[^2] of this title and, at the [State](/usc/42/1396b.md?p=w-7-D)’s option, medical diagnosis and [treatment services](/usc/42/300x–34.md?p=7) that are provided in conjunction with a [family](/usc/42/290ff–4.md?p=d-2) planning service in a [family](/usc/42/290ff–4.md?p=d-2) planning setting.
- (b) **Definitions—** For purposes of this section:
  - (1) **Presumptive eligibility period—** The term “presumptive eligibility period” means, with respect to an individual described in [subsection (a)](#a), the period that—
    - (A) begins with the date on which a [qualified entity](#b-2-A) determines, on the basis of preliminary information, that the individual is described in [section 1396a(ii) of this title](/usc/42/1396a.md?p=ii); and
    - (B) ends with (and [includes](/usc/42/1301.md?p=b)) the earlier of—
      - (i) the day on which a determination is made with respect to the eligibility of such individual for services under the [State](/usc/42/1396b.md?p=w-7-D) plan; or
      - (ii) in the case of such an individual who does not file an application by the last day of the month following the month during which the entity makes the determination referred to in [subparagraph (A)](#b-1-A), such last day.
  - (2) **Qualified entity—**
    - (A) **In general—** Subject to [subparagraph (B)](#b-2-B), the term “qualified entity” means any entity that—
      - (i) is eligible for payments under a [State](/usc/42/1396b.md?p=w-7-D) plan approved under this subchapter; and
      - (ii) is determined by the [State agency](/usc/42/1320a–7a.md?p=i-1) to be capable of making determinations of the type described in [paragraph (1)(A)](#b-1-A).
    - (B) **Rule of construction—** Nothing in this paragraph shall be construed as preventing a [State](/usc/42/1396b.md?p=w-7-D) from limiting the classes of entities that may become [qualified entities](#b-2-A) in order to prevent fraud and [abuse](/usc/42/1397j.md?p=1).
- (c) **Administration—**
  - (1) **In general—** The [State agency](/usc/42/1320a–7a.md?p=i-1) shall provide [qualified entities](#b-2-A) with—
    - (A) such forms as are necessary for an application to be made by an individual described in [subsection (a)](#a) for medical assistance under the [State](/usc/42/1396b.md?p=w-7-D) plan; and
    - (B) information on how to assist such individuals in completing and filing such forms.
  - (2) **Notification requirements—** A [qualified entity](#b-2-A) that determines under [subsection (b)(1)(A)](#b-1-A) that an individual described in [subsection (a)](#a) is presumptively eligible for medical assistance under a [State](/usc/42/1396b.md?p=w-7-D) plan shall—
    - (A) notify the [State agency](/usc/42/1320a–7a.md?p=i-1) of the determination within 5 working days after the date on which determination is made; and
    - (B) inform such individual at the time the determination is made that an application for medical assistance is required to be made by not later than the last day of the month following the month during which the determination is made.
  - (3) **Application for medical assistance—** In the case of an individual described in [subsection (a)](#a) who is determined by a [qualified entity](#b-2-A) to be presumptively eligible for medical assistance under a [State](/usc/42/1396b.md?p=w-7-D) plan, the individual shall apply for medical assistance by not later than the last day of the month following the month during which the determination is made.
- (d) **Payment—** Notwithstanding any other provision of law, medical assistance that—
  - (1) is furnished to an individual described in [subsection (a)](#a)—
    - (A) during a presumptive eligibility period; and
    - (B) by a[^3] entity that is eligible for payments under the [State](/usc/42/1396b.md?p=w-7-D) plan; and
  - (2) is included in the care and services covered by the [State](/usc/42/1396b.md?p=w-7-D) plan,

  shall be treated as medical assistance provided by such plan for purposes of clause (4) of the first sentence of [section 1396d(b) of this title](/usc/42/1396d.md?p=b).


# §1396r–2. Information concerning sanctions taken by State licensing authorities against health care practitioners and providers

- (a) **Information reporting requirement—** The requirement referred to in [section 1396a(a)(49) of this title](/usc/42/1396a.md?p=a-49) is that the [State](/usc/42/1396b.md?p=w-7-D) must provide for the following:
  - (1) **Information reporting system—**
    - (A) **Licensing or certification actions—** The [State](/usc/42/1396b.md?p=w-7-D) must have in effect a system of reporting the following information with respect to formal proceedings (as defined by the [Secretary](/usc/42/1301.md?p=a-6) in regulations) concluded against a health care [practitioner](/usc/42/1395a.md?p=b-6-C) or entity by a [State licensing or certification agency](#g-1):
      - (i) Any adverse action taken by such licensing authority as a result of the proceeding, [including](/usc/42/1301.md?p=b) any revocation or suspension of a license (and the length of any such suspension), reprimand, censure, or probation.
      - (ii) Any dismissal or closure of the proceedings by reason of the [practitioner](/usc/42/1395a.md?p=b-6-C) or entity surrendering the license or leaving the [State](/usc/42/1396b.md?p=w-7-D) or jurisdiction.
      - (iii) Any other loss of license or the right to apply for, or renew, a license by the [practitioner](/usc/42/1395a.md?p=b-6-C) or entity, whether by operation of law, voluntary surrender, nonrenewability, or otherwise.
      - (iv) Any negative action or finding by such authority, organization, or entity regarding the [practitioner](/usc/42/1395a.md?p=b-6-C) or entity.
    - (B) **Other final adverse actions—** The [State](/usc/42/1396b.md?p=w-7-D) must have in effect a system of reporting information with respect to any [final adverse action](#g-3-A) (not [including](/usc/42/1301.md?p=b) settlements in which no findings of liability have been made) taken against a [health care provider](/usc/42/300jj.md?p=3), [supplier](/usc/42/1395cc–4.md?p=a-2-I), or [practitioner](/usc/42/1395a.md?p=b-6-C) by a [State law or fraud enforcement agency](#g-2).
  - (2) **Access to documents—** The [State](/usc/42/1396b.md?p=w-7-D) must provide the [Secretary](/usc/42/1301.md?p=a-6) (or an entity designated by the [Secretary](/usc/42/1301.md?p=a-6)) with access to such documents of a [State licensing or certification agency](#g-1) or [State law or fraud enforcement agency](#g-2) as may be necessary for the [Secretary](/usc/42/1301.md?p=a-6) to determine the facts and circumstances concerning the actions and determinations described in such paragraph for the purpose of carrying out this chapter.
- (b) **Form of information—** The information described in [subsection (a)(1)](#a-1) shall be provided to the [Secretary](/usc/42/1301.md?p=a-6) (or to an appropriate private or [public agency](/usc/42/11851.md?p=8), under suitable arrangements made by the [Secretary](/usc/42/1301.md?p=a-6) with respect to receipt, storage, protection of confidentiality, and dissemination of information) in such a form and manner as the [Secretary](/usc/42/1301.md?p=a-6) determines to be appropriate in order to provide for activities of the [Secretary](/usc/42/1301.md?p=a-6) under this chapter and in order to provide, directly or through suitable arrangements made by the [Secretary](/usc/42/1301.md?p=a-6), information—
  - (1) to [agencies](/usc/42/1397n–12.md?p=1) administering Federal health care [programs](/usc/42/274l–1.md?p=4), [including](/usc/42/1301.md?p=b) [private entities](/usc/42/12181.md?p=6) administering such [programs](/usc/42/274l–1.md?p=4) under contract,
  - (2) to [State licensing or certification agencies](#g-1) and Federal [agencies](/usc/42/1397n–12.md?p=1) responsible for the licensing and certification of [health care providers](/usc/42/300jj.md?p=3), [suppliers](/usc/42/1395cc–4.md?p=a-2-I), and licensed health care [practitioners](/usc/42/1395a.md?p=b-6-C);[^1]
  - (3) to [State agencies](/usc/42/1320a–7a.md?p=i-1) administering or supervising the [administration](/usc/42/1301.md?p=a-10) of [State](/usc/42/1396b.md?p=w-7-D) health care [programs](/usc/42/274l–1.md?p=4) (as defined in [section 1320a–7(h) of this title](/usc/42/1320a–7.md?p=h)),
  - (4) to utilization and quality control peer review organizations[^2] described in part B of subchapter XI and to appropriate entities with contracts under [section 1320c–3(a)(4)(C)](/usc/42/1320c–3.md)[^3] of this title with respect to eligible organizations reviewed under the contracts, but only with respect to information provided pursuant to [subsection (a)(1)(A)](#a-1-A),
  - (5) to [State law or fraud enforcement agencies](#g-2),
  - (6) to [hospitals](/usc/42/1395dd.md?p=e-5) and other health care entities (as defined in section 431 of the Health Care Quality Improvement Act of 1986 [[42 U.S.C. 11151](/usc/42/11151.md)]), with respect to [physicians](/usc/42/1396d.md?p=e) or other licensed health care [practitioners](/usc/42/1395a.md?p=b-6-C) that have entered (or may be entering) into an employment or affiliation relationship with, or have applied for clinical privileges or appointments to the medical staff of, such [hospitals](/usc/42/1395dd.md?p=e-5) or other health care entities (and such information shall be deemed to be disclosed pursuant to [section 427](/usc/42/427.md) [[42 U.S.C. 11137](/usc/42/11137.md)] of, and be subject to the provisions of, that Act [[42 U.S.C. 11101](/usc/42/11101.md) et seq.]), but only with respect to information provided pursuant to [subsection (a)(1)(A)](#a-1-A),
  - (7) to [health plans](/usc/42/300jj.md?p=6) (as defined in [section 1320a–7c(c) of this title](/usc/42/1320a–7c.md?p=c));[^1]
  - (8) to the [Attorney General](/usc/42/14902.md?p=6) and such other [law enforcement](/usc/42/1397j.md?p=13) officials as the [Secretary](/usc/42/1301.md?p=a-6) deems appropriate, and
  - (9) upon request, to the Comptroller General,

  in order for such authorities to determine the fitness of individuals to provide health care services, to protect the health and safety of individuals receiving health care through such [programs](/usc/42/274l–1.md?p=4), and to protect the fiscal integrity of such [programs](/usc/42/274l–1.md?p=4).

- (c) **Confidentiality of information provided—** The [Secretary](/usc/42/1301.md?p=a-6) shall provide for suitable safeguards for the confidentiality of the information furnished under [subsection (a)](#a). Nothing in this subsection shall prevent the disclosure of such information by a party which is otherwise authorized, under applicable [State](/usc/42/1396b.md?p=w-7-D) law, to make such disclosure.
- (d) **Disclosure and correction of information—**
  - (1) **Disclosure—** With respect to information reported pursuant to [subsection (a)(1)](#a-1), the [Secretary](/usc/42/1301.md?p=a-6) shall—
    - (A) provide for disclosure of the information, upon request, to the health care [practitioner](/usc/42/1395a.md?p=b-6-C) who, or the entity that, is the subject of the information reported; and
    - (B) establish procedures for the case where the health care [practitioner](/usc/42/1395a.md?p=b-6-C) or entity disputes the accuracy of the information reported.
  - (2) **Corrections—** Each [State licensing or certification agency](#g-1) and [State law or fraud enforcement agency](#g-2) shall report corrections of information already reported about any formal proceeding or [final adverse action](#g-3-A) described in [subsection (a)](#a), in such form and manner as the [Secretary](/usc/42/1301.md?p=a-6) prescribes by regulation.
- (e) **Fees for disclosure—** The [Secretary](/usc/42/1301.md?p=a-6) may establish or approve reasonable fees for the disclosure of information under this section. The amount of such a fee may not exceed the costs of processing the requests for disclosure and of providing such information. Such fees shall be available to the [Secretary](/usc/42/1301.md?p=a-6) to cover such costs.
- (f) **Protection from liability for reporting—** No [person](/usc/42/1301.md?p=a-3) or entity, [including](/usc/42/1301.md?p=b) any [agency](/usc/42/1397n–12.md?p=1) designated by the [Secretary](/usc/42/1301.md?p=a-6) in [subsection (b)](#b), shall be held liable in any civil action with respect to any reporting of information as required under this section, without knowledge of the falsity of the information contained in the report.
- (g) **References—** For purposes of this section:
  - (1) **State licensing or certification agency—** The term “State licensing or certification agency” [includes](/usc/42/1301.md?p=b) any authority of a [State](/usc/42/1396b.md?p=w-7-D) (or of a political subdivision thereof) responsible for the licensing of health care [practitioners](/usc/42/1395a.md?p=b-6-C) (or any peer review organization or private accreditation entity reviewing the services provided by health care [practitioners](/usc/42/1395a.md?p=b-6-C)) or entities.
  - (2) **State law or fraud enforcement agency—** The term “State law or fraud enforcement agency” [includes](/usc/42/1301.md?p=b)—
    - (A) a [State](/usc/42/1396b.md?p=w-7-D) [law enforcement](/usc/42/1397j.md?p=13) [agency](/usc/42/1397n–12.md?p=1); and
    - (B) a [State](/usc/42/1396b.md?p=w-7-D) [medicaid](/usc/42/1396b.md?p=w-3-E-iii-III-aa) fraud control [unit](/usc/42/1395w–114b.md?p=g-2) (as defined in [section 1396b(q) of this title](/usc/42/1396b.md?p=q)).
  - (3) **Final adverse action—**
    - (A) **In general—** Subject to [subparagraph (B)](#g-3-B), the term “final adverse action” [includes](/usc/42/1301.md?p=b)—
      - (i) civil judgments against a [health care provider](/usc/42/300jj.md?p=3), [supplier](/usc/42/1395cc–4.md?p=a-2-I), or [practitioner](/usc/42/1395a.md?p=b-6-C) in [State](/usc/42/1396b.md?p=w-7-D) court related to the delivery of a health care item or service;
      - (ii) [State](/usc/42/1396b.md?p=w-7-D) criminal convictions related to the delivery of a health care item or service;
      - (iii) exclusion from participation in [State](/usc/42/1396b.md?p=w-7-D) health care [programs](/usc/42/274l–1.md?p=4) (as defined in [section 1320a–7(h) of this title](/usc/42/1320a–7.md?p=h));
      - (iv) any licensing or certification action described in [subsection (a)(1)(A)](#a-1-A) taken against a [supplier](/usc/42/1395cc–4.md?p=a-2-I) by a [State licensing or certification agency](#g-1); and
      - (v) any other adjudicated actions or decisions that the [Secretary](/usc/42/1301.md?p=a-6) shall establish by regulation.
    - (B) **Exception—** Such term does not include any action with respect to a malpractice [claim](/usc/42/1320a–7a.md?p=i-2).
- (h) **Appropriate coordination—** In implementing this section, the [Secretary](/usc/42/1301.md?p=a-6) shall provide for the maximum appropriate coordination with part B of the Health Care Quality Improvement Act of 1986 ([42 U.S.C. 11131](/usc/42/11131.md) et seq.) and [section 1320a–7e of this title](/usc/42/1320a–7e.md).

# §1396r–3. Correction and reduction plans for intermediate care facilities for mentally retarded

- (a) **Written plans to remedy substantial deficiencies; time for submission—** If the [Secretary](/usc/42/1301.md?p=a-6) finds that an [intermediate care facility for the mentally retarded](/usc/42/1396d.md?p=d) has substantial deficiencies which do not pose an immediate threat to the health and safety of residents ([including](/usc/42/1301.md?p=b) failure to provide active [treatment](/usc/42/11851.md?p=11)), the [State](/usc/42/1396b.md?p=w-7-D) may elect, subject to the limitations in this section, to—
  - (1) submit, within the number of days specified by the [Secretary](/usc/42/1301.md?p=a-6) in regulations which apply to submission of compliance plans with respect to deficiencies of such type, a written plan of correction which details the extent of the [facility](/usc/42/11049.md?p=4)’s current compliance with the [standards](/usc/42/1320d.md?p=7) promulgated by the [Secretary](/usc/42/1301.md?p=a-6), [including](/usc/42/1301.md?p=b) all deficiencies identified during a validation survey, and which provides for a timetable for completion of necessary steps to correct all staffing deficiencies within 6 months, and a timetable for rectifying all physical plant deficiencies within 6 months; or
  - (2) submit, within a time period consisting of the number of days specified for submissions under [paragraph (1)](#a-1) plus 35 days, a written plan for permanently reducing the number of certified beds, within a maximum of 36 months, in order to permit any noncomplying [buildings](/usc/42/6881.md?p=i-3) (or distinct parts thereof) to be vacated and any staffing deficiencies to be corrected (hereinafter in this section referred to as a “reduction plan”).
- (b) **Conditions for approval of reduction plans—** As conditions of approval of any reduction plan submitted pursuant to [subsection (a)(2)](#a-2), the [State](/usc/42/1396b.md?p=w-7-D) must—
  - (1) provide for a hearing to be held at the affected [facility](/usc/42/11049.md?p=4) at least 35 days prior to submission of the reduction plan, with reasonable notice thereof to the staff and residents of the [facility](/usc/42/11049.md?p=4), responsible members of the residents’ [families](/usc/42/12704.md?p=11), and the general public;
  - (2) demonstrate that the [State](/usc/42/1396b.md?p=w-7-D) has successfully provided home and community services similar to the services proposed to be provided under the reduction plan for similar individuals eligible for medical assistance; and
  - (3) provide assurances that the requirements of [subsection (c)](#c) shall be met with respect to the reduction plan.
- (c) **Contents of reduction plan—** The reduction plan must—
  - (1) identify the number and service needs of existing [facility](/usc/42/11049.md?p=4) residents to be provided home or community services and the timetable for providing such services, in 6 month intervals, within the 36-month period;
  - (2) describe the methods to be used to select such residents for home and community services and to develop the alternative home and community services to meet their needs effectively;
  - (3) describe the necessary safeguards that will be applied to protect the health and welfare of the former residents of the [facility](/usc/42/11049.md?p=4) who are to receive home or community services, [including](/usc/42/1301.md?p=b) adequate [standards](/usc/42/1320d.md?p=7) for consumer and provider participation and assurances that applicable [State](/usc/42/1396b.md?p=w-7-D) licensure and applicable [State](/usc/42/1396b.md?p=w-7-D) and Federal certification requirements will be met in providing such home or community services;
  - (4) provide that residents of the affected [facility](/usc/42/11049.md?p=4) who are eligible for medical assistance while in the [facility](/usc/42/11049.md?p=4) shall, at their option, be placed in another setting (or another part of the affected [facility](/usc/42/11049.md?p=4)) so as to retain their eligibility for medical assistance;
  - (5) specify the actions which will be taken to protect the health and safety of, and to provide active [treatment](/usc/42/11851.md?p=11) for, the residents who remain in the affected [facility](/usc/42/11049.md?p=4) while the reduction plan is in effect;
  - (6) provide that the ratio of qualified staff to residents at the affected [facility](/usc/42/11049.md?p=4) (or the part thereof) which is subject to the reduction plan will be the higher of—
    - (A) the ratio which the [Secretary](/usc/42/1301.md?p=a-6) determines is necessary in order to assure the health and safety of the residents of such [facility](/usc/42/11049.md?p=4) (or part thereof); or
    - (B) the ratio which was in effect at the time that the finding of substantial deficiencies (referred to in [subsection (a)](#a)) was made; and
  - (7) provide for the protection of the interests of [employees](/usc/42/1320a–7h.md?p=e-7) affected by actions under the reduction plan, [including](/usc/42/1301.md?p=b)—
    - (A) arrangements to preserve [employee](/usc/42/1320a–7h.md?p=e-7) rights and benefits;
    - (B) [training](/usc/42/285e–2.md?p=b-2) and retraining of such [employees](/usc/42/1320a–7h.md?p=e-7) where necessary;
    - (C) redeployment of such [employees](/usc/42/1320a–7h.md?p=e-7) to community settings under the reduction plan; and
    - (D) making maximum efforts to guarantee the employment of such [employees](/usc/42/1320a–7h.md?p=e-7) (but this requirement shall not be construed to guarantee the employment of any [employee](/usc/42/1320a–7h.md?p=e-7)).
- (d) **Notice and comment; approval of more than 15 reduction plans in any fiscal year; corrections costing $2,000,000 or more—**
  - (1) The [Secretary](/usc/42/1301.md?p=a-6) must provide for a period of not less than 30 days after the submission of a reduction plan by a [State](/usc/42/1396b.md?p=w-7-D), during which comments on such reduction plan may be submitted to the [Secretary](/usc/42/1301.md?p=a-6), before the [Secretary](/usc/42/1301.md?p=a-6) approves or disapproves such reduction plan.
  - (2) If the [Secretary](/usc/42/1301.md?p=a-6) approves more than 15 reduction plans under this section in any fiscal year, any reduction plans approved in addition to the first 15 such plans approved, must be for a [facility](/usc/42/11049.md?p=4) (or part thereof) for which the costs of correcting the substantial deficiencies (referred to in [subsection (a)](#a)) are $2,000,000 or greater (as demonstrated by the [State](/usc/42/1396b.md?p=w-7-D) to the satisfaction of the [Secretary](/usc/42/1301.md?p=a-6)).
- (e) **Termination of provider agreements; disallowance of percentage amounts for purposes of Federal financial participation—**
  - (1) If the [Secretary](/usc/42/1301.md?p=a-6), at the conclusion of the 6-month plan of correction described in [subsection (a)(1)](#a-1), determines that the [State](/usc/42/1396b.md?p=w-7-D) has substantially failed to correct the deficiencies described in [subsection (a)](#a), the [Secretary](/usc/42/1301.md?p=a-6) may terminate the [facility](/usc/42/11049.md?p=4)’s provider [agreement](/usc/42/1320b–8.md?p=a-3-A) in accordance with the provisions of [section 1396i(b) of this title](/usc/42/1396i.md?p=b).
  - (2) In the case of a reduction plan described in [subsection (a)(2)](#a-2), if the [Secretary](/usc/42/1301.md?p=a-6) determines, at the conclusion of the initial 6-month period or any 6-month interval thereafter, that the [State](/usc/42/1396b.md?p=w-7-D) has substantially failed to meet the requirements of [subsection (c)](#c), the [Secretary](/usc/42/1301.md?p=a-6) shall—
    - (A) terminate the [facility](/usc/42/11049.md?p=4)’s provider [agreement](/usc/42/1320b–8.md?p=a-3-A) in accordance with the provisions of [section 1396i(b) of this title](/usc/42/1396i.md?p=b); or
    - (B) if the [State](/usc/42/1396b.md?p=w-7-D) has failed to meet such requirements despite good faith efforts, disallow, for purposes of Federal financial participation, an amount equal to 5 percent of the cost of care for all [eligible individuals](/usc/42/239.md?p=a-6) in the [facility](/usc/42/11049.md?p=4) for each month for which the [State](/usc/42/1396b.md?p=w-7-D) fails to meet such requirements.
- (f) **Applicability of section limited to plans approved by January 1, 1990—** The provisions of this section shall apply only to plans of correction and reduction plans approved by the [Secretary](/usc/42/1301.md?p=a-6) by January 1, 1990.

# §1396r–4. Adjustment in payment for inpatient hospital services furnished by disproportionate share hospitals

- (a) **Implementation of requirement—**
  - (1) A [State](/usc/42/1396b.md?p=w-7-D) plan under this subchapter shall not be considered to meet the requirement of [section 1396a(a)(13)(A)(iv) of this title](/usc/42/1396a.md?p=a-13-A-iv) (insofar as it requires payments to [hospitals](/usc/42/1395dd.md?p=e-5) to take into account the situation of [hospitals](/usc/42/1395dd.md?p=e-5) which serve a disproportionate number of [low income](/usc/42/701.md?p=b-2) patients with special needs), as of July 1, 1988, unless the [State](/usc/42/1396b.md?p=w-7-D) has submitted to the [Secretary](/usc/42/1301.md?p=a-6), by not later than such date, an amendment to such plan that—
    - (A) specifically defines the [hospitals](/usc/42/1395dd.md?p=e-5) so described (and [includes](/usc/42/1301.md?p=b) in such definition any disproportionate share [hospital](/usc/42/1395dd.md?p=e-5) described in [subsection (b)(1)](#b-1) which meets the requirements of [subsection (d)](#d)), and
    - (B) provides, effective for inpatient [hospital](/usc/42/1395dd.md?p=e-5) services provided not later than July 1, 1988, for an appropriate increase in the rate or amount of payment for such services provided by such [hospitals](/usc/42/1395dd.md?p=e-5), consistent with [subsection (c)](#c).
  - (2)
    - (A) In order to be considered to have met such requirement of [section 1396a(a)(13)(A) of this title](/usc/42/1396a.md?p=a-13-A) as of July 1, 1989, the [State](/usc/42/1396b.md?p=w-7-D) must submit to the [Secretary](/usc/42/1301.md?p=a-6) by not later than April 1, 1989, the [State](/usc/42/1396b.md?p=w-7-D) plan amendment described in [paragraph (1)](#a-1), consistent with [subsection (c)](#c), effective for inpatient [hospital](/usc/42/1395dd.md?p=e-5) services provided on or after July 1, 1989.
    - (B) In order to be considered to have met such requirement of [section 1396a(a)(13)(A) of this title](/usc/42/1396a.md?p=a-13-A) as of July 1, 1990, the [State](/usc/42/1396b.md?p=w-7-D) must submit to the [Secretary](/usc/42/1301.md?p=a-6) by not later than April 1, 1990, the [State](/usc/42/1396b.md?p=w-7-D) plan amendment described in [paragraph (1)](#a-1), consistent with subsections [(c)](#c) and [(f)](#f), effective for inpatient [hospital](/usc/42/1395dd.md?p=e-5) services provided on or after July 1, 1990.
    - (C) If a [State](/usc/42/1396b.md?p=w-7-D) plan under this subchapter provides for payments for inpatient [hospital](/usc/42/1395dd.md?p=e-5) services on a prospective basis (whether per diem, per case, or otherwise), in order for the plan to be considered to have met such requirement of [section 1396a(a)(13)(A) of this title](/usc/42/1396a.md?p=a-13-A) as of July 1, 1989, the [State](/usc/42/1396b.md?p=w-7-D) must submit to the [Secretary](/usc/42/1301.md?p=a-6) by not later than April 1, 1989, a [State](/usc/42/1396b.md?p=w-7-D) plan amendment that provides, in the case of [hospitals](/usc/42/1395dd.md?p=e-5) defined by the [State](/usc/42/1396b.md?p=w-7-D) as disproportionate share [hospitals](/usc/42/1395dd.md?p=e-5) under [paragraph (1)(A)](#a-1-A), for an outlier adjustment in payment amounts for medically necessary inpatient [hospital](/usc/42/1395dd.md?p=e-5) services provided on or after July 1, 1989, involving exceptionally high costs or exceptionally long lengths of stay for individuals under one year of age.
    - (D) A [State](/usc/42/1396b.md?p=w-7-D) plan under this subchapter shall not be considered to meet the requirements of [section 1396a(a)(13)(A)(iv) of this title](/usc/42/1396a.md?p=a-13-A-iv) (insofar as it requires payments to [hospitals](/usc/42/1395dd.md?p=e-5) to take into account the situation of [hospitals](/usc/42/1395dd.md?p=e-5) that serve a disproportionate number of low-[income](/usc/42/292s.md?p=c-4) patients with special needs), as of October 1, 1998, unless the [State](/usc/42/1396b.md?p=w-7-D) has submitted to the [Secretary](/usc/42/1301.md?p=a-6) by such date a description of the methodology used by the [State](/usc/42/1396b.md?p=w-7-D) to identify and to make payments to disproportionate share [hospitals](/usc/42/1395dd.md?p=e-5), [including](/usc/42/1301.md?p=b) [children](/usc/42/256e.md?p=g-2)’s [hospitals](/usc/42/1395dd.md?p=e-5), on the basis of the proportion of low-[income](/usc/42/292s.md?p=c-4) and [medicaid](/usc/42/1396b.md?p=w-3-E-iii-III-aa) patients ([including](/usc/42/1301.md?p=b) such patients who receive benefits through a [managed care entity](/usc/42/1396b.md?p=m-9-D-i)) served by such [hospitals](/usc/42/1395dd.md?p=e-5). The [State](/usc/42/1396b.md?p=w-7-D) shall provide an annual report to the [Secretary](/usc/42/1301.md?p=a-6) describing the disproportionate share payments to each such disproportionate share [hospital](/usc/42/1395dd.md?p=e-5).
  - (3) The [Secretary](/usc/42/1301.md?p=a-6) shall, not later than 90 days after the date a [State](/usc/42/1396b.md?p=w-7-D) submits an amendment under this subsection, review each such amendment for compliance with such requirement and by such date shall approve or disapprove each such amendment. If the [Secretary](/usc/42/1301.md?p=a-6) disapproves such an amendment, the [State](/usc/42/1396b.md?p=w-7-D) shall immediately submit a revised amendment which meets such requirement.
  - (4) The requirement of this subsection may not be waived under [section 1396n(b)(4) of this title](/usc/42/1396n.md?p=b-4).
- (b) **Hospitals deemed disproportionate share—**
  - (1) For purposes of [subsection (a)(1)](#a-1), a [hospital](/usc/42/1395dd.md?p=e-5) which meets the requirements of [subsection (d)](#d) is deemed to be a disproportionate share [hospital](/usc/42/1395dd.md?p=e-5) if—
    - (A) the [hospital](/usc/42/1395dd.md?p=e-5)’s medicaid inpatient utilization rate (as defined in [paragraph (2)](#b-2)) is at least one [standard](/usc/42/1320d.md?p=7) deviation above the mean medicaid inpatient utilization rate for [hospitals](/usc/42/1395dd.md?p=e-5) receiving [medicaid](/usc/42/1396b.md?p=w-3-E-iii-III-aa) payments in the [State](/usc/42/1396b.md?p=w-7-D); or
    - (B) the [hospital](/usc/42/1395dd.md?p=e-5)’s [low-income utilization rate](#b-3) (as defined in [paragraph (3)](#b-3)) exceeds 25 percent.
  - (2) For purposes of [paragraph (1)(A)](#b-1-A), the term “medicaid inpatient utilization rate” means, for a [hospital](/usc/42/1395dd.md?p=e-5), a fraction (expressed as a percentage), the numerator of which is the [hospital](/usc/42/1395dd.md?p=e-5)’s number of inpatient days attributable to patients who (for such days) were eligible for medical assistance under a [State](/usc/42/1396b.md?p=w-7-D) plan approved under this subchapter in a period (regardless of whether such patients receive medical assistance on a fee-for-service basis or through a [managed care entity](/usc/42/1396b.md?p=m-9-D-i)), and the denominator of which is the total number of the [hospital](/usc/42/1395dd.md?p=e-5)’s inpatient days in that period. In this paragraph, the term “inpatient day” [includes](/usc/42/1301.md?p=b) each day in which an individual ([including](/usc/42/1301.md?p=b) a newborn) is an inpatient in the [hospital](/usc/42/1395dd.md?p=e-5), whether or not the individual is in a specialized ward and whether or not the individual remains in the [hospital](/usc/42/1395dd.md?p=e-5) for lack of suitable placement elsewhere.
  - (3) For purposes of [paragraph (1)(B)](#b-1-B), the term “low-income utilization rate” means, for a [hospital](/usc/42/1395dd.md?p=e-5), the sum of—
    - (A) the fraction (expressed as a percentage)—
      - (i) the numerator of which is the sum (for a period) of (I) the total revenues paid the [hospital](/usc/42/1395dd.md?p=e-5) for patient services under a [State](/usc/42/1396b.md?p=w-7-D) plan under this subchapter (regardless of whether the services were furnished on a fee-for-service basis or through a [managed care entity](/usc/42/1396b.md?p=m-9-D-i)) and (II) the amount of the cash subsidies for patient services received directly from [State](/usc/42/1396b.md?p=w-7-D) and [local governments](/usc/42/8401a.md), and
      - (ii) the denominator of which is the total amount of revenues of the [hospital](/usc/42/1395dd.md?p=e-5) for patient services ([including](/usc/42/1301.md?p=b) the amount of such cash subsidies) in the period; and
    - (B) a fraction (expressed as a percentage)—
      - (i) the numerator of which is the total amount of the [hospital](/usc/42/1395dd.md?p=e-5)’s charges for inpatient [hospital](/usc/42/1395dd.md?p=e-5) services which are attributable to charity care in a period, less the portion of any cash subsidies described in clause (i)(II) of subparagraph (A) in the period reasonably attributable to inpatient [hospital](/usc/42/1395dd.md?p=e-5) services, and
      - (ii) the denominator of which is the total amount of the [hospital](/usc/42/1395dd.md?p=e-5)’s charges for inpatient [hospital](/usc/42/1395dd.md?p=e-5) services in the [hospital](/usc/42/1395dd.md?p=e-5) in the period.

    The numerator under [subparagraph (B)(i)](#b-3-B-i) shall not include contractual allowances and discounts (other than for indigent patients not eligible for medical assistance under a [State](/usc/42/1396b.md?p=w-7-D) plan approved under this subchapter).

  - (4) The [Secretary](/usc/42/1301.md?p=a-6) may not restrict a [State](/usc/42/1396b.md?p=w-7-D)’s authority to designate [hospitals](/usc/42/1395dd.md?p=e-5) as disproportionate share [hospitals](/usc/42/1395dd.md?p=e-5) under this section. The previous sentence shall not be construed to affect the authority of the [Secretary](/usc/42/1301.md?p=a-6) to reduce payments pursuant to [section 1396b(w)(1)(A)(iii) of this title](/usc/42/1396b.md?p=w-1-A-iii) if the [Secretary](/usc/42/1301.md?p=a-6) determines that, as a result of such designations, there is in effect a hold harmless provision described in [section 1396b(w)(4) of this title](/usc/42/1396b.md?p=w-4).
- (c) **Payment adjustment—** Subject to subsections [(f)](#f) and [(g)](#g), in order to be consistent with this subsection, a payment adjustment for a disproportionate share [hospital](/usc/42/1395dd.md?p=e-5) must either—
  - (1) be in an amount equal to at least the product of (A) the amount paid under the [State](/usc/42/1396b.md?p=w-7-D) plan to the [hospital](/usc/42/1395dd.md?p=e-5) for operating costs for inpatient [hospital](/usc/42/1395dd.md?p=e-5) services (of the kind described in [section 1395ww(a)(4) of this title](/usc/42/1395ww.md?p=a-4)), and (B) the [hospital](/usc/42/1395dd.md?p=e-5)’s disproportionate share adjustment percentage (established under [section 1395ww(d)(5)(F)(iv) of this title](/usc/42/1395ww.md?p=d-5-F-iv));
  - (2) provide for a minimum specified additional payment amount (or increased percentage payment) and (without regard to whether the [hospital](/usc/42/1395dd.md?p=e-5) is described in subparagraph [(A)](#b-1-A) or [(B)](#b-1-B) of subsection (b)(1)) for an increase in such a payment amount (or percentage payment) in proportion to the percentage by which the [hospital](/usc/42/1395dd.md?p=e-5)’s [medicaid](/usc/42/1396b.md?p=w-3-E-iii-III-aa) utilization rate (as defined in [subsection (b)(2)](#b-2)) exceeds one [standard](/usc/42/1320d.md?p=7) deviation above the mean medicaid inpatient utilization rate for [hospitals](/usc/42/1395dd.md?p=e-5) receiving [medicaid](/usc/42/1396b.md?p=w-3-E-iii-III-aa) payments in the [State](/usc/42/1396b.md?p=w-7-D) or the [hospital](/usc/42/1395dd.md?p=e-5)’s [low-income utilization rate](#b-3) (as defined in paragraph[^1] (b)(3)); or
  - (3) provide for a minimum specified additional payment amount (or increased percentage payment) that varies according to type of [hospital](/usc/42/1395dd.md?p=e-5) under a methodology that—
    - (A) applies equally to all [hospitals](/usc/42/1395dd.md?p=e-5) of each type; and
    - (B) results in an adjustment for each type of [hospital](/usc/42/1395dd.md?p=e-5) that is reasonably related to the costs, volume, or proportion of services provided to patients eligible for medical assistance under a [State](/usc/42/1396b.md?p=w-7-D) plan approved under this subchapter or to low-[income](/usc/42/292s.md?p=c-4) patients,

  except that, for purposes of paragraphs [(1)(B)](#a-1-B) and [(2)(A)](#a-2-A) of subsection (a), the payment adjustment for a disproportionate share [hospital](/usc/42/1395dd.md?p=e-5) is consistent with this subsection if the appropriate increase in the rate or amount of payment is equal to at least one-third of the increase otherwise applicable under this subsection (in the case of such [paragraph (1)(B)](#a-1-B)) and at least two-thirds of such increase (in the case of such [paragraph (2)(A)](#a-2-A)). In the case of a [hospital](/usc/42/1395dd.md?p=e-5) described in [subsection (d)(2)(A)(i)](#d-2-A-i) (relating to [children](/usc/42/256e.md?p=g-2)’s [hospitals](/usc/42/1395dd.md?p=e-5)), in computing the [hospital](/usc/42/1395dd.md?p=e-5)’s disproportionate share ad­justment percentage for purposes of paragraph (1)(B) of this subsection, the disproportionate patient percentage (defined in [section 1395ww(d)(5)(F)(vi) of this title](/usc/42/1395ww.md?p=d-5-F-vi)) shall be computed by substituting for the fraction described in [subclause (I)](/usc/42/1395ww.md?p=d-5-F-vi-I) of such section the fraction described in [subclause (II)](/usc/42/1395ww.md?p=d-5-F-vi-II) of that section. If a [State](/usc/42/1396b.md?p=w-7-D) elects in a [State](/usc/42/1396b.md?p=w-7-D) plan amendment under [subsection (a)](#a) to provide the payment adjustment described in [paragraph (2)](#c-2), the [State](/usc/42/1396b.md?p=w-7-D) must include in the amendment a detailed description of the specific methodology to be used in determining the specified additional payment amount (or increased percentage payment) to be made to each [hospital](/usc/42/1395dd.md?p=e-5) qualifying for such a payment adjustment and must publish at least annually the name of each [hospital](/usc/42/1395dd.md?p=e-5) qualifying for such a payment adjustment and the amount of such payment adjustment made for each such [hospital](/usc/42/1395dd.md?p=e-5).

- (d) **Requirements to qualify as disproportionate share hospital—**
  - (1) Except as provided in [paragraph (2)](#d-2), no [hospital](/usc/42/1395dd.md?p=e-5) may be defined or deemed as a disproportionate share [hospital](/usc/42/1395dd.md?p=e-5) under a [State](/usc/42/1396b.md?p=w-7-D) plan under this subchapter or under [subsection (b)](#b) of this section unless the [hospital](/usc/42/1395dd.md?p=e-5) has at least 2 [obstetricians](#d-2-B) who have staff privileges at the [hospital](/usc/42/1395dd.md?p=e-5) and who have agreed to provide obstetric services to individuals who are entitled to medical assistance for such services under such [State](/usc/42/1396b.md?p=w-7-D) plan.
  - (2)
    - (A) [Paragraph (1)](#d-1) shall not apply to a [hospital](/usc/42/1395dd.md?p=e-5)—
      - (i) the inpatients of which are predominantly individuals under 18 years of age; or
      - (ii) which does not offer nonemergency obstetric services to the general population as of December 22, 1987.
    - (B) In the case of a [hospital](/usc/42/1395dd.md?p=e-5) located in a rural area (as defined for purposes of [section 1395ww of this title](/usc/42/1395ww.md)), in [paragraph (1)](#d-1) the term “obstetrician” [includes](/usc/42/1301.md?p=b) any [physician](/usc/42/1301.md?p=a-7) with staff privileges at the [hospital](/usc/42/1395dd.md?p=e-5) to perform nonemergency obstetric procedures.
  - (3) No [hospital](/usc/42/1395dd.md?p=e-5) may be defined or deemed as a disproportionate share [hospital](/usc/42/1395dd.md?p=e-5) under a [State](/usc/42/1396b.md?p=w-7-D) plan under this subchapter or under subsection [(b)](#b) or [(e)](#e) of this section unless the [hospital](/usc/42/1395dd.md?p=e-5) has a medicaid inpatient utilization rate (as defined in [subsection (b)(2)](#b-2)) of not less than 1 percent.
- (e) **Special rule—**
  - (1) A [State](/usc/42/1396b.md?p=w-7-D) plan shall be considered to meet the requirement of [section 1396a(a)(13)(A)(iv) of this title](/usc/42/1396a.md?p=a-13-A-iv) (insofar as it requires payments to [hospitals](/usc/42/1395dd.md?p=e-5) to take into account the situation of [hospitals](/usc/42/1395dd.md?p=e-5) which serve a disproportionate number of [low income](/usc/42/701.md?p=b-2) patients with special needs) without regard to the requirement of [subsection (a)](#a) if (A)(i) the plan provided for payment adjustments based on a pooling arrangement involving a majority of the [hospitals](/usc/42/1395dd.md?p=e-5) participating under the plan for disproportionate share [hospitals](/usc/42/1395dd.md?p=e-5) as of January 1, 1984, or (ii) the plan as of January 1, 1987, provided for payment adjustments based on a statewide pooling arrangement involving all acute care [hospitals](/usc/42/1395dd.md?p=e-5) and the arrangement provides for reimbursement of the total amount of uncompensated care provided by each [participating hospital](/usc/42/1395dd.md?p=e-2), (B) the aggregate amount of the payment adjustments under the plan for such [hospitals](/usc/42/1395dd.md?p=e-5) is not less than the aggregate amount of such adjustments otherwise required to be made under such subsection, and (C) the plan meets the requirement of [subsection (d)(3)](#d-3) and such payment adjustments are made consistent with the last sentence of [subsection (c)](#c).
  - (2) In the case of a [State](/usc/42/1396b.md?p=w-7-D) that used a health insuring organization before January 1, 1986, to administer a portion of its plan on a statewide basis, beginning on July 1, 1988—
    - (A) the requirements of subsections [(b)](#b) and [(c)](#c) (other than the last sentence of [subsection (c)](#c)) shall not apply if the aggregate amount of the payment adjustments under the plan for disproportionate share [hospitals](/usc/42/1395dd.md?p=e-5) (as defined under the [State](/usc/42/1396b.md?p=w-7-D) plan) is not less than the aggregate amount of payment adjustments otherwise required to be made if such subsections applied,
    - (B) [subsection (d)(2)(B)](#d-2-B) shall apply to [hospitals](/usc/42/1395dd.md?p=e-5) located in urban areas, as well as in rural areas,
    - (C) [subsection (d)(3)](#d-3) shall apply, and
    - (D) [subsection (g)](#g) shall apply.
- (f) **Limitation on Federal financial participation—**
  - (1) **In general—** Payment under [section 1396b(a) of this title](/usc/42/1396b.md?p=a) shall not be made to a [State](#f-9) with respect to any payment adjustment made under this section for [hospitals](/usc/42/1395dd.md?p=e-5) in a [State](#f-9) for quarters in a fiscal year in excess of the disproportionate share [hospital](/usc/42/1395dd.md?p=e-5) (in this subsection referred to as “DSH”) allotment for the [State](#f-9) for the fiscal year, as specified in paragraphs [(2)](#f-2), [(3)](#f-3), and [(7)](#f-7).
  - (2) **State DSH allotments for fiscal years 1998 through 2002—** Subject to [paragraph (4)](#f-4), the DSH allotment for a [State](#f-9) for each fiscal year during the period beginning with fiscal year 1998 and ending with fiscal year 2002 is determined in accordance with the following table:

    | [State](/usc/42/1396b.md?p=w-7-D) or District | DSH Allotment (in millions of dollars) |  |  |  |  |
    | --- | --- | --- | --- | --- | --- |
    | FY 98 | FY 99 | FY 00 | FY 01 | FY 02 |  |
    | Alabama | 293 | 269 | 248 | 246 | 246 |
    | Alaska | 10 | 10 | 10 | 9 | 9 |
    | Arizona | 81 | 81 | 81 | 81 | 81 |
    | Arkansas | 2 | 2 | 2 | 2 | 2 |
    | California | 1,085 | 1,068 | 986 | 931 | 877 |
    | Colorado | 93 | 85 | 79 | 74 | 74 |
    | Connecticut | 200 | 194 | 164 | 160 | 160 |
    | Delaware | 4 | 4 | 4 | 4 | 4 |
    | District of Columbia | 23 | 23 | 49 | 49 | 49 |
    | Florida | 207 | 203 | 197 | 188 | 160 |
    | Georgia | 253 | 248 | 241 | 228 | 215 |
    | Hawaii | 0 | 0 | 0 | 0 | 0 |
    | Idaho | 1 | 1 | 1 | 1 | 1 |
    | Illinois | 203 | 199 | 193 | 182 | 172 |
    | Indiana | 201 | 197 | 191 | 181 | 171 |
    | Iowa | 8 | 8 | 8 | 8 | 8 |
    | Kansas | 51 | 49 | 42 | 36 | 33 |
    | Kentucky | 137 | 134 | 130 | 123 | 116 |
    | Louisiana | 880 | 795 | 713 | 658 | 631 |
    | Maine | 103 | 99 | 84 | 84 | 84 |
    | Maryland | 72 | 70 | 68 | 64 | 61 |
    | Massachusetts | 288 | 282 | 273 | 259 | 244 |
    | Michigan | 249 | 244 | 237 | 224 | 212 |
    | Minnesota | 16 | 16 | 33 | 33 | 33 |
    | Mississippi | 143 | 141 | 136 | 129 | 122 |
    | Missouri | 436 | 423 | 379 | 379 | 379 |
    | Montana | 0.2 | 0.2 | 0.2 | 0.2 | 0.2 |
    | Nebraska | 5 | 5 | 5 | 5 | 5 |
    | Nevada | 37 | 37 | 37 | 37 | 37 |
    | New Hampshire | 140 | 136 | 130 | 130 | 130 |
    | New Jersey | 600 | 582 | 515 | 515 | 515 |
    | New Mexico | 5 | 5 | 9 | 9 | 9 |
    | New York | 1,512 | 1,482 | 1,436 | 1,361 | 1,285 |
    | North Carolina | 278 | 272 | 264 | 250 | 236 |
    | North Dakota | 1 | 1 | 1 | 1 | 1 |
    | Ohio | 382 | 374 | 363 | 344 | 325 |
    | Oklahoma | 16 | 16 | 16 | 16 | 16 |
    | Oregon | 20 | 20 | 20 | 20 | 20 |
    | Pennsylvania | 529 | 518 | 502 | 476 | 449 |
    | Rhode Island | 62 | 60 | 58 | 55 | 52 |
    | South Carolina | 313 | 303 | 262 | 262 | 262 |
    | South Dakota | 1 | 1 | 1 | 1 | 1 |
    | Tennessee | 0 | 0 | 0 | 0 | 0 |
    | Texas | 979 | 950 | 806 | 765 | 765 |
    | Utah | 3 | 3 | 3 | 3 | 3 |
    | Vermont | 18 | 18 | 18 | 18 | 18 |
    | Virginia | 70 | 68 | 66 | 63 | 59 |
    | Washington | 174 | 171 | 166 | 157 | 148 |
    | West Virginia | 64 | 63 | 61 | 58 | 54 |
    | Wisconsin | 7 | 7 | 7 | 7 | 7 |
    | Wyoming | 0 | 0 | 0.1 | 0.1 | 0.1. |

  - (3) **State DSH allotments for fiscal year 2003 and thereafter—**
    - (A) **In general—** Except as provided in paragraphs [(6)](#f-6), [(7)](#f-7), and [(8)](#f-8) and subparagraphs [(E)](#f-3-E) and [(F)](#f-3-F), the DSH allotment for any [State](#f-9) for fiscal year 2003 and each succeeding fiscal year is equal to the DSH allotment for the [State](#f-9) for the preceding fiscal year under [paragraph (2)](#f-2) or this paragraph, increased, subject to subparagraphs [(B)](#f-3-B) and [(C)](#f-3-C) and [paragraph (5)](#f-5), by the percentage change in the consumer price index for all urban consumers (all items; U.S. [city](/usc/42/12902.md?p=11) average), for the previous fiscal year.
    - (B) **Limitation—** The DSH allotment for a [State](#f-9) shall not be increased under [subparagraph (A)](#f-3-A) for a fiscal year to the extent that such an increase would result in the DSH allotment for the year exceeding the greater of—
      - (i) the DSH allotment for the previous year, or
      - (ii) 12 percent of the total amount of expenditures under the [State](#f-9) plan for medical assistance during the fiscal year.
    - (C) **Special, temporary increase in allotments on a one-time, non-cumulative basis—** The DSH allotment for any [State](#f-9) (other than a [State](#f-9) with a DSH allotment determined under [paragraph (5)](#f-5))—
      - (i) for fiscal year 2004 is equal to 116 percent of the DSH allotment for the [State](#f-9) for fiscal year 2003 under this paragraph, notwithstanding [subparagraph (B)](#f-3-B); and
      - (ii) for each succeeding fiscal year is equal to the DSH allotment for the [State](#f-9) for fiscal year 2004 or, in the case of fiscal years beginning with the fiscal year specified in [subparagraph (D)](#f-3-D) for that [State](#f-9), the DSH allotment for the [State](#f-9) for the previous fiscal year increased by the percentage change in the consumer price index for all urban consumers (all items; U.S. [city](/usc/42/12902.md?p=11) average), for the previous fiscal year.
    - (D) **Fiscal year specified—** For purposes of [subparagraph (C)(ii)](#f-3-C-ii), the fiscal year specified in this subparagraph for a [State](#f-9) is the first fiscal year for which the [Secretary](/usc/42/1301.md?p=a-6) estimates that the DSH allotment for that [State](#f-9) will equal (or no longer exceed) the DSH allotment for that [State](#f-9) under the law as in effect before December 8, 2003.
    - (E) **Temporary increase in allotments during recession—**
      - (i) **In general—** Subject to [clause (ii)](#f-3-E-ii), the DSH allotment for any [State](#f-9)—
        - (I) for fiscal year 2009 is equal to 102.5 percent of the DSH allotment that would be determined under this paragraph for the [State](#f-9) for fiscal year 2009 without application of this subparagraph, notwithstanding subparagraphs [(B)](#f-3-B) and [(C)](#f-3-C);
        - (II) for fiscal year 2010 is equal to 102.5 percent of the DSH allotment for the [State](#f-9) for fiscal year 2009, as determined under [subclause (I)](#f-3-E-i-I); and
        - (III) for each succeeding fiscal year is equal to the DSH allotment for the [State](#f-9) under this paragraph determined without applying subclauses [(I)](#f-3-E-i-I) and [(II)](#f-3-E-i-II).
      - (ii) **Application—** [Clause (i)](#f-3-E-i) shall not apply to a [State](#f-9) for a year in the case that the DSH allotment for such [State](#f-9) for such year under this paragraph determined without applying [clause (i)](#f-3-E-i) would grow higher than the DSH allotment specified under [clause (i)](#f-3-E-i) for the [State](#f-9) for such year.
    - (F) **Allotments during the coronavirus temporary medicaid FMAP increase—**
      - (i) **In general—** Notwithstanding any other provision of this subsection, for any fiscal year for which the Federal medical assistance percentage applicable to expenditures under this section is increased pursuant to section 6008 of the [Families](/usc/42/12704.md?p=11) First Coronavirus Response Act, the [Secretary](/usc/42/1301.md?p=a-6) shall recalculate the annual DSH allotment, [including](/usc/42/1301.md?p=b) the DSH allotment specified under [paragraph (6)(A)(vi)](#f-6-A-vi), to ensure that the total DSH payments ([including](/usc/42/1301.md?p=b) both Federal and [State](#f-9) shares) that a [State](#f-9) may make related to a fiscal year is equal to the total DSH payments that the [State](#f-9) could have made for such fiscal year without such increase to the Federal medical assistance percentage.
      - (ii) **No application to allotments beginning after COVID–19 emergency period—** The DSH allotment for any [State](#f-9) for the first fiscal year beginning after the end of the emergency period described in [section 1320b–5(g)(1)(B) of this title](/usc/42/1320b–5.md?p=g-1-B) or any succeeding fiscal year shall be determined under this paragraph without regard to the DSH allotments determined under [clause (i)](#f-3-F-i).
  - (4) **Special rule for fiscal years 2001 and 2002—**
    - (A) **In general—** Notwithstanding [paragraph (2)](#f-2), the DSH allotment for any [State](#f-9) for—
      - (i) fiscal year 2001, shall be the DSH allotment determined under [paragraph (2)](#f-2) for fiscal year 2000 increased, subject to [subparagraph (B)](#f-4-B) and [paragraph (5)](#f-5), by the percentage change in the consumer price index for all urban consumers (all items; U.S. [city](/usc/42/12902.md?p=11) average) for fiscal year 2000; and
      - (ii) fiscal year 2002, shall be the DSH allotment determined under [clause (i)](#f-4-A-i) increased, subject to [subparagraph (B)](#f-4-B) and [paragraph (5)](#f-5), by the percentage change in the consumer price index for all urban consumers (all items; U.S. [city](/usc/42/12902.md?p=11) average) for fiscal year 2001.
    - (B) **Limitation—** [Subparagraph (B)](#f-3-B) of paragraph (3) shall apply to subparagraph (A) of this paragraph in the same manner as that [subparagraph (B)](#f-4-B) applies to [paragraph (3)(A)](#f-3-A).
    - (C) **No application to allotments after fiscal year 2002—** The DSH allotment for any [State](#f-9) for fiscal year 2003 or any succeeding fiscal year shall be determined under [paragraph (3)](#f-3) without regard to the DSH allotments determined under subparagraph (A) of this paragraph.
  - (5) **Special rule for low DSH States—**
    - (A) **For fiscal years 2001 through 2003 for extremely low DSH States—** In the case of a [State](#f-9) in which the [total expenditures](/usc/42/1320f.md?p=c-5) under the [State](#f-9) plan ([including](/usc/42/1301.md?p=b) Federal and [State](#f-9) shares) for disproportionate share [hospital](/usc/42/1395dd.md?p=e-5) adjustments under this section for fiscal year 1999, as reported to the [Administrator](/usc/42/4005.md?p=1) of the Health Care Financing [Administration](/usc/42/1301.md?p=a-10) as of August 31, 2000, is greater than 0 but less than 1 percent of the [State](#f-9)’s total amount of expenditures under the [State](#f-9) plan for medical assistance during the fiscal year, the DSH allotment for fiscal year 2001 shall be increased to 1 percent of the [State](#f-9)’s total amount of expenditures under such plan for such assistance during such fiscal year. In subsequent fiscal years before fiscal year 2004, such increased allotment is subject to an increase for inflation as provided in [paragraph (3)(A)](#f-3-A).
    - (B) **For fiscal year 2004 and subsequent fiscal years—** In the case of a [State](#f-9) in which the [total expenditures](/usc/42/1320f.md?p=c-5) under the [State](#f-9) plan ([including](/usc/42/1301.md?p=b) Federal and [State](#f-9) shares) for disproportionate share [hospital](/usc/42/1395dd.md?p=e-5) adjustments under this section for fiscal year 2000, as reported to the [Administrator](/usc/42/4005.md?p=1) of the Centers for Medicare & [Medicaid](/usc/42/1396b.md?p=w-3-E-iii-III-aa) Services as of August 31, 2003, is greater than 0 but less than 3 percent of the [State](#f-9)’s total amount of expenditures under the [State](#f-9) plan for medical assistance during the fiscal year, the DSH allotment for the [State](#f-9) with respect to—
      - (i) fiscal year 2004 shall be the DSH allotment for the [State](#f-9) for fiscal year 2003 increased by 16 percent;
      - (ii) each succeeding fiscal year before fiscal year 2009 shall be the DSH allotment for the [State](#f-9) for the previous fiscal year increased by 16 percent; and
      - (iii) fiscal year 2009 and any subsequent fiscal year, shall be the DSH allotment for the [State](#f-9) for the previous year subject to an increase for inflation as provided in [paragraph (3)(A)](#f-3-A).
  - (6) **Allotment adjustments—**
    - (A) **Tennessee—**
      - (i) **In general—** Only with respect to fiscal year 2007, the DSH allotment for Tennessee for such fiscal year, notwithstanding the table set forth in [paragraph (2)](#f-2) or the terms of the TennCare [Demonstration Project](/usc/42/16281.md?p=d-2) in effect for the [State](#f-9), shall be the greater of—
        - (I) the amount that the [Secretary](/usc/42/1301.md?p=a-6) determines is equal to the Federal medical assistance percentage component attributable to disproportionate share [hospital](/usc/42/1395dd.md?p=e-5) payment adjustments for the demonstration year ending in 2006 that is reflected in the budget neutrality provision of the TennCare [Demonstration Project](/usc/42/16281.md?p=d-2); and
        - (II) $280,000,000.

      Only with respect to fiscal years 2008, 2009, 2010, and 2011, the DSH allotment for Tennessee for the fiscal year, notwithstanding such table or terms, shall be the amount specified in the previous sentence for fiscal year 2007. Only with respect to fiscal year 2012 for the period ending on December 31, 2011, the DSH allotment for Tennessee for such portion of the fiscal year, notwithstanding such table or terms, shall be ¼ of the amount specified in the first sentence for fiscal year 2007.

      - (ii) **Limitation on amount of payment adjustments eligible for Federal financial participation—** Payment under [section 1396b(a) of this title](/usc/42/1396b.md?p=a) shall not be made to Tennessee with respect to the aggregate amount of any payment adjustments made under this section for [hospitals](/usc/42/1395dd.md?p=e-5) in the [State](#f-9) for fiscal year 2007, 2008, 2009, 2010, 2011, or for period[^2] in fiscal year 2012 described in [clause (i)](#f-6-A-i) that is in excess of 30 percent of the DSH allotment for the [State](#f-9) for such fiscal year or period determined pursuant to [clause (i)](#f-6-A-i).
      - (iii) **State plan amendment—** The [Secretary](/usc/42/1301.md?p=a-6) shall permit Tennessee to submit an amendment to its [State](#f-9) plan under this subchapter that describes the methodology to be used by the [State](#f-9) to identify and make payments to disproportionate share [hospitals](/usc/42/1395dd.md?p=e-5), [including](/usc/42/1301.md?p=b) [children](/usc/42/256e.md?p=g-2)’s [hospitals](/usc/42/1395dd.md?p=e-5) and institutions for mental diseases or other mental health [facilities](/usc/42/11049.md?p=4). The [Secretary](/usc/42/1301.md?p=a-6) may not approve such plan amendment unless the methodology described in the amendment is consistent with the requirements under this section for making payment adjustments to disproportionate share [hospitals](/usc/42/1395dd.md?p=e-5). For purposes of demonstrating budget neutrality under the TennCare [Demonstration Project](/usc/42/16281.md?p=d-2), payment adjustments made pursuant to a [State](#f-9) plan amendment approved in accordance with this subparagraph shall be considered expenditures under such [project](/usc/42/11360.md?p=20).
      - (iv) **Offset of Federal share of payment adjustments for fiscal years 2007 through 2011 and the first calendar quarter of fiscal year 2012 against Essential Access Hospital supplemental pool payments under the TennCare Demonstration Project—**
        - (I) The total amount of Essential Access [Hospital](/usc/42/1395dd.md?p=e-5) supplemental pool payments that may be made under the TennCare [Demonstration Project](/usc/42/16281.md?p=d-2) for fiscal year 2007, 2008, 2009, 2010, 2011, or for a period in fiscal year 2012 described in [clause (i)](#f-6-A-i) shall be reduced on a dollar for dollar basis by the amount of any payments made under [section 1396b(a) of this title](/usc/42/1396b.md?p=a) to Tennessee with respect to payment adjustments made under this section for [hospitals](/usc/42/1395dd.md?p=e-5) in the [State](#f-9) for such fiscal year or period.
        - (II) The sum of the total amount of payments made under [section 1396b(a) of this title](/usc/42/1396b.md?p=a) to Tennessee with respect to payment adjustments made under this section for [hospitals](/usc/42/1395dd.md?p=e-5) in the [State](#f-9) for fiscal year 2007, 2008, 2009, 2010, 2011, or for a period in fiscal year 2012 described in [clause (i)](#f-6-A-i) and the total amount of Essential Access [Hospital](/usc/42/1395dd.md?p=e-5) supplemental pool payments made under the TennCare [Demonstration Project](/usc/42/16281.md?p=d-2) for such fiscal year or period shall not exceed the [State](#f-9)’s DSH allotment for such fiscal year or period established under [clause (i)](#f-6-A-i).
      - (v) **Allotment for 2d, 3rd, and 4th quarters of fiscal year 2012 and for fiscal year 2013—** Notwithstanding the table set forth in [paragraph (2)](#f-2):
        - (I) **2d, 3rd, and 4th quarters of fiscal year 2012—** In the case of a [State](#f-9) that has a DSH allotment of $0 for the 2d, 3rd, and 4th quarters of fiscal year 2012, the DSH allotment shall be $47,200,000 for such quarters.
        - (II) **Fiscal year 2013—** In the case of a [State](#f-9) that has a DSH allotment of $0 for fiscal year 2013, the DSH allotment shall be $53,100,000 for such fiscal year.
      - (vi) **Allotment for fiscal years 2015 through 2027—** Notwithstanding any other provision of this subsection, any other provision of law, or the terms of the TennCare [Demonstration Project](/usc/42/16281.md?p=d-2) in effect for the [State](#f-9), the DSH allotment for Tennessee for fiscal year 2015, and for each fiscal year thereafter through fiscal year 2025, shall be $53,100,000 for each such fiscal year, and the DSH allotment for Tennessee for the portion of fiscal year 2026 beginning October 1, 2025, and ending January 30, 2026, shall be $17,748,493, which may be claimed as fiscal year 2026 uncompensated care costs, and the DSH allotment for Tennessee for the portion of fiscal year 2026 beginning on January 31, 2026, and ending September 30, 2026, shall be $35,351,507, which may be claimed as fiscal year 2026 uncompensated care costs, and the DSH allotment for Tennessee for fiscal year 2027, shall be $53,100,000.
    - (B) **Hawaii—**
      - (i) **In general—** Only with respect to each of fiscal years 2007 through 2011, the DSH allotment for Hawaii for such fiscal year, notwithstanding the table set forth in [paragraph (2)](#f-2), shall be $10,000,000. Only with respect to fiscal year 2012 for the period ending on December 31, 2011, the DSH allotment for Hawaii for such portion of the fiscal year, notwithstanding the table set forth in [paragraph (2)](#f-2), shall be $2,500,000.
      - (ii) **State plan amendment—** The [Secretary](/usc/42/1301.md?p=a-6) shall permit Hawaii to submit an amendment to its [State](#f-9) plan under this subchapter that describes the methodology to be used by the [State](#f-9) to identify and make payments to disproportionate share [hospitals](/usc/42/1395dd.md?p=e-5), [including](/usc/42/1301.md?p=b) [children](/usc/42/256e.md?p=g-2)’s [hospitals](/usc/42/1395dd.md?p=e-5) and institutions for mental diseases or other mental health [facilities](/usc/42/11049.md?p=4). The [Secretary](/usc/42/1301.md?p=a-6) may not approve such plan amendment unless the methodology described in the amendment is consistent with the requirements under this section for making payment adjustments to disproportionate share [hospitals](/usc/42/1395dd.md?p=e-5).
      - (iii) **Allotment for 2d, 3rd, and 4th quarter of fiscal year 2012, fiscal year 2013, and succeeding fiscal years—** Notwithstanding the table set forth in [paragraph (2)](#f-2):
        - (I) **2d, 3rd, and 4th quarter of fiscal year 2012—** The DSH allotment for Hawaii for the 2d, 3rd, and 4th quarters of fiscal year 2012 shall be $7,500,000.
        - (II) **Treatment as a low-DSH State for fiscal year 2013 and succeeding fiscal years—** With respect to fiscal year 2013, and each fiscal year thereafter, the DSH allotment for Hawaii shall be increased in the same manner as allotments for low DSH [States](#f-9) are increased for such fiscal year under [clause (iii)](#f-5-B-iii) of paragraph (5)(B).
        - (III) **Certain hospital payments—** The [Secretary](/usc/42/1301.md?p=a-6) may not impose a limitation on the total amount of payments made to [hospitals](/usc/42/1395dd.md?p=e-5) under the QUEST section 1115 [Demonstration Project](/usc/42/16281.md?p=d-2) except to the extent that such limitation is necessary to ensure that a [hospital](/usc/42/1395dd.md?p=e-5) does not receive payments in excess of the amounts described in [subsection (g)](#g), or as necessary to ensure that such payments under the waiver and such payments pursuant to the allotment provided in this clause do not, in the aggregate in any year, exceed the amount that the [Secretary](/usc/42/1301.md?p=a-6) determines is equal to the Federal medical assistance percentage component attributable to disproportionate share [hospital](/usc/42/1395dd.md?p=e-5) payment adjustments for such year that is reflected in the budget neutrality provision of the QUEST [Demonstration Project](/usc/42/16281.md?p=d-2).
  - (7) **Medicaid DSH reductions—**
    - (A) **Reductions—**
      - (i) **In general—** For fiscal year 2028, the [Secretary](/usc/42/1301.md?p=a-6) shall effect the following reductions:
        - (I) **Reduction in DSH allotments—** The [Secretary](/usc/42/1301.md?p=a-6) shall reduce DSH allotments to [States](#f-7-A-iv) in the amount specified under the DSH health reform methodology under [subparagraph (B)](#f-7-B) for the [State](#f-7-A-iv) for the fiscal year.
        - (II) **Reductions in payments—** The [Secretary](/usc/42/1301.md?p=a-6) shall reduce payments to [States](#f-7-A-iv) under [section 1396b(a) of this title](/usc/42/1396b.md?p=a) for each calendar quarter in the fiscal year, in the manner specified in [clause (iii)](#f-7-A-iii), in an amount equal to ¼ of the DSH allotment reduction under [subclause (I)](#f-7-A-i-I) for the [State](#f-7-A-iv) for the fiscal year.
      - (ii) **Aggregate reductions—** The aggregate reductions in DSH allotments for all [States](#f-7-A-iv) under [clause (i)(I)](#f-7-A-i-I) shall be equal to $8,000,000,000 for fiscal year 2028.
      - (iii) **Manner of payment reduction—** The amount of the payment reduction under [clause (i)(II)](#f-7-A-i-II) for a [State](#f-7-A-iv) for a quarter shall be deemed an overpayment to the [State](#f-7-A-iv) under this subchapter to be disallowed against the [State](#f-7-A-iv)’s regular quarterly draw for all spending under [section 1396b(d)(2) of this title](/usc/42/1396b.md?p=d-2). Such a disallowance is not subject to a reconsideration under subsections (d) and (e) of [section 1316 of this title](/usc/42/1316.md).
      - (iv) **Definition—** In this paragraph, the term “State” means the 50 States and the District of Columbia.
      - (v) **Distribution of aggregate reductions—** The [Secretary](/usc/42/1301.md?p=a-6) shall distribute the aggregate reductions under [clause (ii)](#f-7-A-ii) among [States](#f-7-A-iv) in accordance with [subparagraph (B)](#f-7-B).
    - (B) **DSH Health Reform methodology—** The [Secretary](/usc/42/1301.md?p=a-6) shall carry out [subparagraph (A)](#f-7-A) through use of a DSH Health Reform methodology that meets the following requirements:
      - (i) The methodology imposes the largest percentage reductions on the [States](#f-7-A-iv) that—
        - (I) have the lowest percentages of uninsured individuals (determined on the basis of data from the Bureau of the Census, audited [hospital](/usc/42/1395dd.md?p=e-5) cost reports, and other information likely to yield accurate data) during the most recent year for which such data are available; or
        - (II) do not target their DSH payments on—
          - (aa) [hospitals](/usc/42/1395dd.md?p=e-5) with high volumes of [Medicaid](/usc/42/1396b.md?p=w-3-E-iii-III-aa) inpatients (as defined in [subsection (b)(1)(A)](#b-1-A)); and
          - (bb) [hospitals](/usc/42/1395dd.md?p=e-5) that have high levels of uncompensated care (excluding bad debt).
      - (ii) The methodology imposes a smaller percentage reduction on low DSH [States](#f-7-A-iv) described in [paragraph (5)(B)](#f-5-B).
      - (iii) The methodology takes into account the extent to which the DSH allotment for a [State](#f-7-A-iv) was included in the budget neutrality calculation for a coverage expansion approved under [section 1315 of this title](/usc/42/1315.md) as of July 31, 2009.
  - (8) **Calculation of DSH allotments after reductions period—** The DSH allotment for a [State](#f-9) for fiscal years after fiscal year 2028 shall be calculated under [paragraph (3)](#f-3) without regard to [paragraph (7)](#f-7).
  - (9) **“State” defined—** In this subsection, the term “State” means the 50 States and the District of Columbia.
- (g) **Limit on amount of payment to hospital—**
  - (1) **In general—**
    - (A) **Amount of adjustment subject to uncompensated costs—** A payment adjustment during a fiscal year shall not be considered to be consistent with [subsection (c)](#c) with respect to a [hospital](/usc/42/1395dd.md?p=e-5) if the payment adjustment exceeds an amount equal to—
      - (i) the costs incurred during the year of furnishing [hospital](/usc/42/1395dd.md?p=e-5) services by the [hospital](/usc/42/1395dd.md?p=e-5) to individuals described in [subparagraph (B)](#g-1-B) with respect to such [hospital](/usc/42/1395dd.md?p=e-5) and year minus—
      - (ii) the sum of—
        - (I) payments under this subchapter (other than under this section) for such services;
        - (II) payments by uninsured patients for such services; and
        - (III) payments made under subchapter XVIII or by an applicable plan (as defined in [section 1395y(b)(8)(F) of this title](/usc/42/1395y.md?p=b-8-F)) for such services.
    - (B) **Individuals described—** For purposes of [subparagraph (A)](#g-1-A), the individuals described in this subparagraph are, with respect to a [hospital](/usc/42/1395dd.md?p=e-5) and a year, the following:
      - (i) Individuals who are eligible for medical assistance under the [State](/usc/42/1396b.md?p=w-7-D) plan or under a waiver of such plan and for whom the [State](/usc/42/1396b.md?p=w-7-D) plan or waiver is the primary payor for such services.
      - (ii) Subject to [subparagraph (C)](#g-1-C), individuals who have no health insurance (or other source of third party coverage) for services provided during the year, as determined by the [Secretary](/usc/42/1301.md?p=a-6).
      - (iii) Individuals who are eligible for medical assistance under the [State](/usc/42/1396b.md?p=w-7-D) plan or under a waiver of such plan and for whom the [State](/usc/42/1396b.md?p=w-7-D) plan or waiver is a payor for such services after application of benefits under subchapter XVIII or under an applicable plan (as defined in [section 1395y(b)(8)(F) of this title](/usc/42/1395y.md?p=b-8-F)), but only if the [hospital](/usc/42/1395dd.md?p=e-5) has in the aggregate incurred costs exceeding payments under such [State](/usc/42/1396b.md?p=w-7-D) plan, waiver, subchapter XVIII, or applicable plan for such services furnished to such individuals during such year.
    - (C) **Exclusion of certain payments—** For purposes of [subparagraph (B)(ii)](#g-1-B-ii), payments made to a [hospital](/usc/42/1395dd.md?p=e-5) for services provided to indigent patients made by a [State](/usc/42/1396b.md?p=w-7-D) or a [unit of local government](/usc/42/6372.md?p=2) within a [State](/usc/42/1396b.md?p=w-7-D) shall not be considered to be a source of third party coverage.
  - (2) **Continued application of grandfathered transition rule—** Paragraph (2) of this subsection (as in effect on September 30, 2021, and as applied under section 4721(e) of the Balanced Budget Act of 1997, and amended by [section 607](/usc/42/607.md) of the Medicare, [Medicaid](/usc/42/1396b.md?p=w-3-E-iii-III-aa), and SCHIP Balanced Budget Refinement Act of 1999 (Public Law 106–113)) shall apply in determining whether a payment adjustment for a [hospital](/usc/42/1395dd.md?p=e-5) in a [State](/usc/42/1396b.md?p=w-7-D) referenced in section 4721(e) of the Balanced Budget Act of 1997 during a [State](/usc/42/1396b.md?p=w-7-D) fiscal year shall be considered consistent with [subsection (c)](#c).
- (h) **Limitation on certain State DSH expenditures—**
  - (1) **In general—** Payment under [section 1396b(a) of this title](/usc/42/1396b.md?p=a) shall not be made to a [State](/usc/42/1396b.md?p=w-7-D) with respect to any payment adjustments made under this section for quarters in a fiscal year (beginning with fiscal year 1998) to institutions for mental diseases or other mental health [facilities](/usc/42/11049.md?p=4), to the extent the aggregate of such adjustments in the fiscal year exceeds the lesser of the following:
    - (A) **1995 IMD DSH payment adjustments—** The total [State](/usc/42/1396b.md?p=w-7-D) DSH expenditures that are attributable to fiscal year 1995 for payments to institutions for mental diseases and other mental health [facilities](/usc/42/11049.md?p=4) (based on reporting data specified by the [State](/usc/42/1396b.md?p=w-7-D) on HCFA Form 64 as mental health DSH, and as approved by the [Secretary](/usc/42/1301.md?p=a-6)).
    - (B) **Applicable percentage of 1995 total DSH payment allotment—** The amount of such payment adjustments which are equal to the [applicable percentage](/usc/42/609.md?p=a-7-B-ii) of the Federal share of payment adjustments made to [hospitals](/usc/42/1395dd.md?p=e-5) in the [State](/usc/42/1396b.md?p=w-7-D) under [subsection (c)](#c) that are attributable to the 1995 DSH allotment for the [State](/usc/42/1396b.md?p=w-7-D) for payments to institutions for mental diseases and other mental health [facilities](/usc/42/11049.md?p=4) (based on reporting data specified by the [State](/usc/42/1396b.md?p=w-7-D) on HCFA Form 64 as mental health DSH, and as approved by the [Secretary](/usc/42/1301.md?p=a-6)).
  - (2) **Applicable percentage—**
    - (A) **In general—** For purposes of [paragraph (1)](#h-1), the [applicable percentage](/usc/42/609.md?p=a-7-B-ii) with respect to—
      - (i) each of fiscal years 1998, 1999, and 2000, is the percentage determined under [subparagraph (B)](#h-2-B); or
      - (ii) a succeeding fiscal year is the lesser of the percentage determined under [subparagraph (B)](#h-2-B) or the following percentage:
        - (I) For fiscal year 2001, 50 percent.
        - (II) For fiscal year 2002, 40 percent.
        - (III) For each succeeding fiscal year, 33 percent.
    - (B) **1995 percentage—** The percentage determined under this subparagraph is the ratio (determined as a percentage) of—
      - (i) the Federal share of payment adjustments made to [hospitals](/usc/42/1395dd.md?p=e-5) in the [State](/usc/42/1396b.md?p=w-7-D) under [subsection (c)](#c) that are attributable to the 1995 DSH allotment for the [State](/usc/42/1396b.md?p=w-7-D) (as reported by the [State](/usc/42/1396b.md?p=w-7-D) not later than January 1, 1997, on HCFA Form 64, and as approved by the [Secretary](/usc/42/1301.md?p=a-6)) for payments to institutions for mental diseases and other mental health [facilities](/usc/42/11049.md?p=4), to
      - (ii) the [State](/usc/42/1396b.md?p=w-7-D) 1995 DSH spending amount.
    - (C) **State 1995 DSH spending amount—** For purposes of [subparagraph (B)(ii)](#h-2-B-ii), the “[State](/usc/42/1396b.md?p=w-7-D) 1995 DSH spending amount”, with respect to a [State](/usc/42/1396b.md?p=w-7-D), is the Federal medical assistance percentage (for fiscal year 1995) of the payment adjustments made under [subsection (c)](#c) under the [State](/usc/42/1396b.md?p=w-7-D) plan that are attributable to the fiscal year 1995 DSH allotment for the [State](/usc/42/1396b.md?p=w-7-D) (as reported by the [State](/usc/42/1396b.md?p=w-7-D) not later than January 1, 1997, on HCFA Form 64, and as approved by the [Secretary](/usc/42/1301.md?p=a-6)).
- (i) **Requirement for direct payment—**
  - (1) **In general—** No payment may be made under [section 1396b(a)(1) of this title](/usc/42/1396b.md?p=a-1) with respect to a payment adjustment made under this section, for services furnished by a [hospital](/usc/42/1395dd.md?p=e-5) on or after October 1, 1997, with respect to individuals eligible for medical assistance under the [State](/usc/42/1396b.md?p=w-7-D) plan who are enrolled with a [managed care entity](/usc/42/1396b.md?p=m-9-D-i) (as defined in [section 1396u–2(a)(1)(B) of this title](/usc/42/1396u–2.md?p=a-1-B)) or under any other managed care arrangement unless a payment, equal to the amount of the payment adjustment—
    - (A) is made directly to the [hospital](/usc/42/1395dd.md?p=e-5) by the [State](/usc/42/1396b.md?p=w-7-D); and
    - (B) is not used to determine the amount of a prepaid capitation payment under the [State](/usc/42/1396b.md?p=w-7-D) plan to the entity or arrangement with respect to such individuals.
  - (2) **Exception for current arrangements—** [Paragraph (1)](#i-1) shall not apply to a payment adjustment provided pursuant to a payment arrangement in effect on July 1, 1997.
- (j) **Annual reports and other requirements regarding payment adjustments—** With respect to fiscal year 2004 and each fiscal year thereafter, the [Secretary](/usc/42/1301.md?p=a-6) shall require a [State](/usc/42/1396b.md?p=w-7-D), as a condition of receiving a payment under [section 1396b(a)(1) of this title](/usc/42/1396b.md?p=a-1) with respect to a payment adjustment made under this section, to do the following:
  - (1) **Report—** The [State](/usc/42/1396b.md?p=w-7-D) shall submit an annual report that [includes](/usc/42/1301.md?p=b) the following:
    - (A) An identification of each disproportionate share [hospital](/usc/42/1395dd.md?p=e-5) that received a payment adjustment under this section for the preceding fiscal year and the amount of the payment adjustment made to such [hospital](/usc/42/1395dd.md?p=e-5) for the preceding fiscal year.
    - (B) Such other information as the [Secretary](/usc/42/1301.md?p=a-6) determines necessary to ensure the appropriateness of the payment adjustments made under this section for the preceding fiscal year.
  - (2) **Independent certified audit—** The [State](/usc/42/1396b.md?p=w-7-D) shall annually submit to the [Secretary](/usc/42/1301.md?p=a-6) an independent certified audit that verifies each of the following:
    - (A) The extent to which [hospitals](/usc/42/1395dd.md?p=e-5) in the [State](/usc/42/1396b.md?p=w-7-D) have reduced their uncompensated care costs to reflect the total amount of claimed expenditures made under this section.
    - (B) Payments under this section to [hospitals](/usc/42/1395dd.md?p=e-5) that comply with the requirements of [subsection (g)](#g).
    - (C) Only the uncompensated care costs of providing inpatient [hospital](/usc/42/1395dd.md?p=e-5) and outpatient [hospital](/usc/42/1395dd.md?p=e-5) services to individuals described in [paragraph (1)(A)](#j-1-A) of such subsection are included in the calculation of the [hospital](/usc/42/1395dd.md?p=e-5)-specific limits under such subsection.
    - (D) The [State](/usc/42/1396b.md?p=w-7-D) included all payments under this subchapter, [including](/usc/42/1301.md?p=b) supplemental payments, in the calculation of such [hospital](/usc/42/1395dd.md?p=e-5)-specific limits.
    - (E) The [State](/usc/42/1396b.md?p=w-7-D) has separately documented and retained a record of all of its costs under this subchapter, claimed expenditures under this subchapter, uninsured costs in determining payment adjustments under this section, and any payments made on behalf of the uninsured from payment adjustments under this section.

# §1396r–5. Treatment of income and resources for certain institutionalized spouses

- (a) **Special treatment for institutionalized spouses—**
  - (1) **Supersedes other provisions—** In determining the eligibility for medical assistance of an [institutionalized spouse](#h-1) (as defined in [subsection (h)(1)](#h-1)), the provisions of this section supersede any other provision of this subchapter ([including](/usc/42/1301.md?p=b) sections [1396a(a)(17)](/usc/42/1396a.md?p=a-17) and [1396a(f)](/usc/42/1396a.md?p=f) of this title) which is inconsistent with them.
  - (2) **No comparable treatment required—** Any different [treatment](/usc/42/11851.md?p=11) provided under this section for [institutionalized spouses](#h-1) shall not, by reason of paragraph (10) or (17) of [section 1396a(a) of this title](/usc/42/1396a.md?p=a), require such [treatment](/usc/42/11851.md?p=11) for other individuals.
  - (3) **Does not affect certain determinations—** Except as this section specifically provides, this section does not apply to—
    - (A) the determination of what constitutes [income](/usc/42/292s.md?p=c-4) or [resources](#c-5), or
    - (B) the methodology and [standards](/usc/42/1320d.md?p=7) for determining and evaluating [income](/usc/42/292s.md?p=c-4) and [resources](#c-5).
  - (4) **Application in certain States and territories—**
    - (A) **Application in States operating under demonstration projects—** In the case of any [State](/usc/42/1396b.md?p=w-7-D) which is providing medical assistance to its residents under a waiver granted under [section 1315 of this title](/usc/42/1315.md), the [Secretary](/usc/42/1301.md?p=a-6) shall require the [State](/usc/42/1396b.md?p=w-7-D) to meet the requirements of this section in the same manner as the [State](/usc/42/1396b.md?p=w-7-D) would be required to meet such requirement if the [State](/usc/42/1396b.md?p=w-7-D) had in effect a plan approved under this subchapter.
    - (B) **No application in commonwealths and territories—** This section shall only apply to a [State](/usc/42/1396b.md?p=w-7-D) that is one of the 50 [States](/usc/42/1396b.md?p=w-7-D) or the District of Columbia.
  - (5) **Application to individuals receiving services under PACE programs—** This section applies to individuals receiving institutional or noninstitutional services under a PACE demonstration waiver [program](/usc/42/274l–1.md?p=4) (as defined in [section 1396u–4(a)(7) of this title](/usc/42/1396u–4.md?p=a-7)) or under a PACE [program](/usc/42/274l–1.md?p=4) under section [1396u–4](/usc/42/1396u–4.md) or [1395eee](/usc/42/1395eee.md) of this title.
- (b) **Rules for treatment of income—**
  - (1) **Separate treatment of income—** During any month in which an [institutionalized spouse](#h-1) is in the institution, except as provided in [paragraph (2)](#b-2), no [income](/usc/42/292s.md?p=c-4) of the [community spouse](#h-2) shall be deemed available to the [institutionalized spouse](#h-1).
  - (2) **Attribution of income—** In determining the [income](/usc/42/292s.md?p=c-4) of an [institutionalized spouse](#h-1) or [community spouse](#h-2) for purposes of the post-eligibility [income](/usc/42/292s.md?p=c-4) determination described in [subsection (d)](#d), except as otherwise provided in this section and regardless of any [State](/usc/42/1396b.md?p=w-7-D) laws relating to community property or the division of marital property, the following rules apply:
    - (A) **Non-trust property—** Subject to subparagraphs [(C)](#b-2-C) and [(D)](#b-2-D), in the case of [income](/usc/42/292s.md?p=c-4) not from a [trust](/usc/42/12854.md?p=6), unless the instrument providing the [income](/usc/42/292s.md?p=c-4) otherwise specifically provides—
      - (i) if payment of [income](/usc/42/292s.md?p=c-4) is made solely in the name of the [institutionalized spouse](#h-1) or the [community spouse](#h-2), the [income](/usc/42/292s.md?p=c-4) shall be considered available only to that respective spouse;
      - (ii) if payment of [income](/usc/42/292s.md?p=c-4) is made in the names of the [institutionalized spouse](#h-1) and the [community spouse](#h-2), one-half of the [income](/usc/42/292s.md?p=c-4) shall be considered available to each of them; and
      - (iii) if payment of [income](/usc/42/292s.md?p=c-4) is made in the names of the [institutionalized spouse](#h-1) or the [community spouse](#h-2), or both, and to another [person](/usc/42/1301.md?p=a-3) or [persons](/usc/42/1301.md?p=a-3), the [income](/usc/42/292s.md?p=c-4) shall be considered available to each spouse in proportion to the spouse’s interest (or, if payment is made with respect to both spouses and no such interest is specified, one-half of the joint interest shall be considered available to each spouse).
    - (B) **Trust property—** In the case of a [trust](/usc/42/12854.md?p=6)—
      - (i) except as provided in [clause (ii)](#b-2-B-ii), [income](/usc/42/292s.md?p=c-4) shall be attributed in accordance with the provisions of this subchapter ([including](/usc/42/1301.md?p=b) sections [1396a(a)(17)](/usc/42/1396a.md?p=a-17) and [1396p(d)](/usc/42/1396p.md?p=d) of this title), and
      - (ii) [income](/usc/42/292s.md?p=c-4) shall be considered available to each spouse as provided in the [trust](/usc/42/12854.md?p=6), or, in the absence of a specific provision in the [trust](/usc/42/12854.md?p=6)—
        - (I) if payment of [income](/usc/42/292s.md?p=c-4) is made solely to the [institutionalized spouse](#h-1) or the [community spouse](#h-2), the [income](/usc/42/292s.md?p=c-4) shall be considered available only to that respective spouse;
        - (II) if payment of [income](/usc/42/292s.md?p=c-4) is made to both the [institutionalized spouse](#h-1) and the [community spouse](#h-2), one-half of the [income](/usc/42/292s.md?p=c-4) shall be considered available to each of them; and
        - (III) if payment of [income](/usc/42/292s.md?p=c-4) is made to the [institutionalized spouse](#h-1) or the [community spouse](#h-2), or both, and to another [person](/usc/42/1301.md?p=a-3) or [persons](/usc/42/1301.md?p=a-3), the [income](/usc/42/292s.md?p=c-4) shall be considered available to each spouse in proportion to the spouse’s interest (or, if payment is made with respect to both spouses and no such interest is specified, one-half of the joint interest shall be considered available to each spouse).
    - (C) **Property with no instrument—** In the case of [income](/usc/42/292s.md?p=c-4) not from a [trust](/usc/42/12854.md?p=6) in which there is no instrument establishing ownership, subject to [subparagraph (D)](#b-2-D), one-half of the [income](/usc/42/292s.md?p=c-4) shall be considered to be available to the [institutionalized spouse](#h-1) and one-half to the [community spouse](#h-2).
    - (D) **Rebutting ownership—** The rules of subparagraphs [(A)](#b-2-A) and [(C)](#b-2-C) are superseded to the extent that an [institutionalized spouse](#h-1) can establish, by a preponderance of the evidence, that the ownership interests in [income](/usc/42/292s.md?p=c-4) are other than as provided under such subparagraphs.
- (c) **Rules for treatment of resources—**
  - (1) **Computation of spousal share at time of institutionalization—**
    - (A) **Total joint resources—** There shall be computed (as of the beginning of the first continuous period of institutionalization (beginning on or after September 30, 1989) of the [institutionalized spouse](#h-1))—
      - (i) the total value of the [resources](#c-5) to the extent either the [institutionalized spouse](#h-1) or the [community spouse](#h-2) has an ownership interest, and
      - (ii) a spousal share which is equal to ½ of such total value.
    - (B) **Assessment—** At the request of an [institutionalized spouse](#h-1) or [community spouse](#h-2), at the beginning of the first continuous period of institutionalization (beginning on or after September 30, 1989) of the [institutionalized spouse](#h-1) and upon the receipt of relevant documentation of [resources](#c-5), the [State](/usc/42/1396b.md?p=w-7-D) shall promptly assess and document the total value described in [subparagraph (A)(i)](#c-1-A-i) and shall provide a copy of such assessment and documentation to each spouse and shall retain a copy of the assessment for use under this section. If the request is not part of an application for medical assistance under this subchapter, the [State](/usc/42/1396b.md?p=w-7-D) may, at its option as a condition of providing the assessment, require payment of a fee not exceeding the reasonable expenses of providing and documenting the assessment. At the time of providing the copy of the assessment, the [State](/usc/42/1396b.md?p=w-7-D) shall include a notice indicating that the spouse will have a right to a fair hearing under [subsection (e)(2)](#e-2).
  - (2) **Attribution of resources at time of initial eligibility determination—** In determining the [resources](#c-5) of an [institutionalized spouse](#h-1) at the time of application for benefits under this subchapter, regardless of any [State](/usc/42/1396b.md?p=w-7-D) laws relating to community property or the division of marital property—
    - (A) except as provided in [subparagraph (B)](#c-2-B), all the [resources](#c-5) held by either the [institutionalized spouse](#h-1), [community spouse](#h-2), or both, shall be considered to be available to the [institutionalized spouse](#h-1), and
    - (B) [resources](#c-5) shall be considered to be available to an [institutionalized spouse](#h-1), but only to the extent that the amount of such [resources](#c-5) exceeds the amount computed under [subsection (f)(2)(A)](#f-2-A) (as of the time of application for benefits).
  - (3) **Assignment of support rights—** The [institutionalized spouse](#h-1) shall not be ineligible by reason of [resources](#c-5) determined under [paragraph (2)](#c-2) to be available for the cost of care where—
    - (A) the [institutionalized spouse](#h-1) has assigned to the [State](/usc/42/1396b.md?p=w-7-D) any rights to support from the [community spouse](#h-2);
    - (B) the [institutionalized spouse](#h-1) lacks the ability to execute an assignment due to physical or mental impairment but the [State](/usc/42/1396b.md?p=w-7-D) has the right to bring a support proceeding against a [community spouse](#h-2) without such assignment; or
    - (C) the [State](/usc/42/1396b.md?p=w-7-D) determines that denial of eligibility would work an undue hardship.
  - (4) **Separate treatment of resources after eligibility for benefits established—** During the continuous period in which an [institutionalized spouse](#h-1) is in an institution and after the month in which an [institutionalized spouse](#h-1) is determined to be eligible for benefits under this subchapter, no [resources](#c-5) of the [community spouse](#h-2) shall be deemed available to the [institutionalized spouse](#h-1).
  - (5) **Resources defined—** In this section, the term “resources” does not include—
    - (A) [resources](#c-5) excluded under subsection (a) or (d) of [section 1382b of this title](/usc/42/1382b.md), and
    - (B) [resources](#c-5) that would be excluded under [section 1382b(a)(2)(A) of this title](/usc/42/1382b.md?p=a-2-A) but for the limitation on total value described in such section.
- (d) **Protecting income for community spouse—**
  - (1) **Allowances to be offset from income of institutionalized spouse—** After an [institutionalized spouse](#h-1) is determined or redetermined to be eligible for medical assistance, in determining the amount of the spouse’s [income](/usc/42/292s.md?p=c-4) that is to be applied monthly to payment for the costs of care in the institution, there shall be deducted from the spouse’s monthly [income](/usc/42/292s.md?p=c-4) the following amounts in the following order:
    - (A) A personal needs allowance (described in [section 1396a(q)(1) of this title](/usc/42/1396a.md?p=q-1)), in an amount not less than the amount specified in [section 1396a(q)(2) of this title](/usc/42/1396a.md?p=q-2).
    - (B) A [community spouse](#h-2) monthly [income](/usc/42/292s.md?p=c-4) allowance (as defined in [paragraph (2)](#d-2)), but only to the extent [income](/usc/42/292s.md?p=c-4) of the [institutionalized spouse](#h-1) is made available to (or for the benefit of) the [community spouse](#h-2).
    - (C) A [family](/usc/42/290ff–4.md?p=d-2) allowance, for each [family member](#d-1), equal to at least ⅓ of the amount by which the amount described in [paragraph (3)(A)(i)](#d-3-A-i) exceeds the amount of the monthly [income](/usc/42/292s.md?p=c-4) of that [family member](#d-1).
    - (D) Amounts for incurred expenses for medical or remedial care for the [institutionalized spouse](#h-1) (as provided under [section 1396a(r) of this title](/usc/42/1396a.md?p=r)).

    In [subparagraph (C)](#d-1-C), the term “family member” only [includes](/usc/42/1301.md?p=b) minor or dependent [children](/usc/42/256e.md?p=g-2), dependent [parents](/usc/42/1396a.md?p=k-3), or dependent siblings of the institutionalized or [community spouse](#h-2) who are residing with the [community spouse](#h-2).

  - (2) **Community spouse monthly income allowance defined—** In this section (except as provided in [paragraph (5)](#d-5)), the “[community spouse](#h-2) monthly [income](/usc/42/292s.md?p=c-4) allowance” for a [community spouse](#h-2) is an amount by which—
    - (A) except as provided in [subsection (e)](#e), the minimum monthly maintenance needs allowance (established under and in accordance with [paragraph (3)](#d-3)) for the spouse, exceeds
    - (B) the amount of monthly [income](/usc/42/292s.md?p=c-4) otherwise available to the [community spouse](#h-2) (determined without regard to such an allowance).
  - (3) **Establishment of minimum monthly maintenance needs allowance—**
    - (A) **In general—** Each [State](/usc/42/1396b.md?p=w-7-D) shall establish a minimum monthly maintenance needs allowance for each [community spouse](#h-2) which, subject to [subparagraph (C)](#d-3-C), is equal to or exceeds—
      - (i) the applicable percent (described in [subparagraph (B)](#d-3-B)) of <sup>1</sup>⁄<sub>12</sub> of the [income](/usc/42/292s.md?p=c-4) [official poverty line](/usc/42/254c–12.md?p=1) (defined by the [Office](/usc/42/3058f.md?p=1) of Management and Budget and revised annually in accordance with [section 9902(2) of this title](/usc/42/9902.md?p=2)) for a [family](/usc/42/290ff–4.md?p=d-2) [unit](/usc/42/1395w–114b.md?p=g-2) of 2 members; plus
      - (ii) an [excess shelter allowance](#d-4) (as defined in [paragraph (4)](#d-4)).

      A revision of the [official poverty line](/usc/42/254c–12.md?p=1) referred to in [clause (i)](#d-3-A-i) shall apply to medical assistance furnished during and after the second calendar quarter that begins after the date of publication of the revision.

    - (B) **Applicable percent—** For purposes of [subparagraph (A)(i)](#d-3-A-i), the “applicable percent” described in this paragraph, effective as of—
      - (i) September 30, 1989, is 122 percent,
      - (ii) July 1, 1991, is 133 percent, and
      - (iii) July 1, 1992, is 150 percent.
    - (C) **Cap on minimum monthly maintenance needs allowance—** The minimum monthly maintenance needs allowance established under [subparagraph (A)](#d-3-A) may not exceed $1,500 (subject to adjustment under subsections [(e)](#e) and [(g)](#g)).
  - (4) **Excess shelter allowance defined—** In [paragraph (3)(A)(ii)](#d-3-A-ii), the term “excess shelter allowance” means, for a [community spouse](#h-2), the amount by which the sum of—
    - (A) the spouse’s expenses for rent or mortgage payment ([including](/usc/42/1301.md?p=b) principal and interest), taxes and insurance and, in the case of a condominium or cooperative, required maintenance charge, for the [community spouse](#h-2)’s principal residence, and
    - (B) the [standard](/usc/42/1320d.md?p=7) utility allowance (used by the [State](/usc/42/1396b.md?p=w-7-D) under [section 2014(e) of title 7](/usc/7/2014.md?p=e)) or, if the [State](/usc/42/1396b.md?p=w-7-D) does not use such an allowance, the spouse’s actual utility expenses,

    exceeds 30 percent of the amount described in [paragraph (3)(A)(i)](#d-3-A-i), except that, in the case of a condominium or cooperative, for which a maintenance charge is included under [subparagraph (A)](#d-4-A), any allowance under [subparagraph (B)](#d-4-B) shall be reduced to the extent the maintenance charge [includes](/usc/42/1301.md?p=b) utility expenses.

  - (5) **Court ordered support—** If a court has entered an order against an [institutionalized spouse](#h-1) for monthly [income](/usc/42/292s.md?p=c-4) for the support of the [community spouse](#h-2), the [community spouse](#h-2) monthly [income](/usc/42/292s.md?p=c-4) allowance for the spouse shall be not less than the amount of the monthly [income](/usc/42/292s.md?p=c-4) so ordered.
  - (6) **Application of “income first” rule to revision of community spouse resource allowance—** For purposes of this subsection and subsections [(c)](#c) and [(e)](#e), a [State](/usc/42/1396b.md?p=w-7-D) must consider that all [income](/usc/42/292s.md?p=c-4) of the [institutionalized spouse](#h-1) that could be made available to a [community spouse](#h-2), in accordance with the calculation of the [community spouse](#h-2) monthly [income](/usc/42/292s.md?p=c-4) allowance under this subsection, has been made available before the [State](/usc/42/1396b.md?p=w-7-D) allocates to the [community spouse](#h-2) an amount of [resources](#c-5) adequate to provide the difference between the minimum monthly maintenance needs allowance and all [income](/usc/42/292s.md?p=c-4) available to the [community spouse](#h-2).
- (e) **Notice and fair hearing—**
  - (1) **Notice—** Upon—
    - (A) a determination of eligibility for medical assistance of an [institutionalized spouse](#h-1), or
    - (B) a request by either the [institutionalized spouse](#h-1), or the [community spouse](#h-2), or a [representative](/usc/42/3058f.md?p=5) acting on behalf of either spouse,

    each [State](/usc/42/1396b.md?p=w-7-D) shall notify both spouses (in the case described in [subparagraph (A)](#e-1-A)) or the spouse making the request (in the case described in [subparagraph (B)](#e-1-B)) of the amount of the [community spouse](#h-2) monthly [income](/usc/42/292s.md?p=c-4) allowance (described in [subsection (d)(1)(B)](#d-1-B)), of the amount of any [family](/usc/42/290ff–4.md?p=d-2) allowances (described in [subsection (d)(1)(C)](#d-1-C)), of the method for computing the amount of the [community spouse](#h-2) [resources](#c-5) allowance permitted under [subsection (f)](#f), and of the spouse’s right to a fair hearing under this subsection respecting ownership or availability of [income](/usc/42/292s.md?p=c-4) or [resources](#c-5), and the determination of the [community spouse](#h-2) monthly [income](/usc/42/292s.md?p=c-4) or resource allowance.

  - (2) **Fair hearing—**
    - (A) **In general—** If either the [institutionalized spouse](#h-1) or the [community spouse](#h-2) is dissatisfied with a determination of—
      - (i) the [community spouse](#h-2) monthly [income](/usc/42/292s.md?p=c-4) allowance;
      - (ii) the amount of monthly [income](/usc/42/292s.md?p=c-4) otherwise available to the [community spouse](#h-2) (as applied under [subsection (d)(2)(B)](#d-2-B));
      - (iii) the computation of the spousal share of [resources](#c-5) under [subsection (c)(1)](#c-1);
      - (iv) the attribution of [resources](#c-5) under [subsection (c)(2)](#c-2); or
      - (v) the determination of the [community spouse](#h-2) resource allowance (as defined in [subsection (f)(2)](#f-2));

      such spouse is entitled to a fair hearing described in [section 1396a(a)(3) of this title](/usc/42/1396a.md?p=a-3) with respect to such determination if an application for benefits under this subchapter has been made on behalf of the [institutionalized spouse](#h-1). Any such hearing respecting the determination of the [community spouse](#h-2) resource allowance shall be held within 30 days of the date of the request for the hearing.

    - (B) **Revision of minimum monthly maintenance needs allowance—** If either such spouse establishes that the [community spouse](#h-2) needs [income](/usc/42/292s.md?p=c-4), above the level otherwise provided by the minimum monthly maintenance needs allowance, due to exceptional circumstances resulting in significant financial duress, there shall be substituted, for the minimum monthly maintenance needs allowance in [subsection (d)(2)(A)](#d-2-A), an amount adequate to provide such additional [income](/usc/42/292s.md?p=c-4) as is necessary.
    - (C) **Revision of community spouse resource allowance—** If either such spouse establishes that the [community spouse](#h-2) resource allowance (in relation to the amount of [income](/usc/42/292s.md?p=c-4) generated by such an allowance) is inadequate to raise the [community spouse](#h-2)’s [income](/usc/42/292s.md?p=c-4) to the minimum monthly maintenance needs allowance, there shall be substituted, for the [community spouse](#h-2) resource allowance under [subsection (f)(2)](#f-2), an amount adequate to provide such a minimum monthly maintenance needs allowance.
- (f) **Permitting transfer of resources to community spouse—**
  - (1) **In general—** An [institutionalized spouse](#h-1) may, without regard to [section 1396p(c)(1) of this title](/usc/42/1396p.md?p=c-1), transfer an amount equal to the [community spouse](#h-2) resource allowance (as defined in [paragraph (2)](#f-2)), but only to the extent the [resources](#c-5) of the [institutionalized spouse](#h-1) are transferred to (or for the sole benefit of) the [community spouse](#h-2). The transfer under the preceding sentence shall be made as soon as practicable after the date of the initial determination of eligibility, taking into account such time as may be necessary to obtain a court order under [paragraph (3)](#f-3).
  - (2) **Community spouse resource allowance defined—** In [paragraph (1)](#f-1), the “[community spouse](#h-2) resource allowance” for a [community spouse](#h-2) is an amount (if any) by which—
    - (A) the greatest of—
      - (i) $12,000 (subject to adjustment under [subsection (g)](#g)), or, if greater (but not to exceed the amount specified in clause (ii)(II)) an amount specified under the [State](/usc/42/1396b.md?p=w-7-D) plan,
      - (ii) the lesser of (I) the spousal share computed under subsection [(c)(1)](#c-1), or (II) $60,000 (subject to adjustment under [subsection (g)](#g)),
      - (iii) the amount established under [subsection (e)(2)](#e-2); or
      - (iv) the amount transferred under a court order under [paragraph (3)](#f-3);

      exceeds

    - (B) the amount of the [resources](#c-5) otherwise available to the [community spouse](#h-2) (determined without regard to such an allowance).
  - (3) **Transfers under court orders—** If a court has entered an order against an [institutionalized spouse](#h-1) for the support of the [community spouse](#h-2), [section 1396p of this title](/usc/42/1396p.md) shall not apply to amounts of [resources](#c-5) transferred pursuant to such order for the support of the spouse or a [family member](#d-1) (as defined in [subsection (d)(1)](#d-1)).
- (g) **Indexing dollar amounts—** For services furnished during a calendar year after 1989, the dollar amounts specified in subsections [(d)(3)(C)](#d-3-C), [(f)(2)(A)(i)](#f-2-A-i), and (f)(2)(A)(ii)(II) shall be increased by the same percentage as the percentage increase in the consumer price index for all urban consumers (all items; U.S. [city](/usc/42/12902.md?p=11) average) between September 1988 and the September before the calendar year involved.
- (h) **Definitions—** In this section:
  - (1) The term “institutionalized spouse” means an individual who—
    - (A) is in a medical institution or [nursing facility](/usc/42/1396r.md?p=a) or who (at the option of the [State](/usc/42/1396b.md?p=w-7-D)) is described in [section 1396a(a)(10)(A)(ii)(VI) of this title](/usc/42/1396a.md?p=a-10-A-ii-VI), and
    - (B) is married to a spouse who is not in a medical institution or [nursing facility](/usc/42/1396r.md?p=a);

    but does not include any such individual who is not likely to meet the requirements of [subparagraph (A)](#h-1-A) for at least 30 consecutive days.

  - (2) The term “community spouse” means the spouse of an [institutionalized spouse](#h-1).

# §1396r–6. Extension of eligibility for medical assistance

- (a) **Initial 6-month extension—**
  - (1) **Requirement—**
    - (A) **In general—** Notwithstanding any other provision of this subchapter but subject to [subparagraph (B)](#a-1-B) and [paragraph (5)](#a-5), each [State](/usc/42/1396b.md?p=w-7-D) plan approved under this subchapter must provide that each [family](/usc/42/290ff–4.md?p=d-2) which was receiving aid pursuant to a plan of the [State](/usc/42/1396b.md?p=w-7-D) approved under part A of subchapter IV in at least 3 of the 6 months immediately preceding the month in which such [family](/usc/42/290ff–4.md?p=d-2) becomes ineligible for such aid, because of hours of, or [income](/usc/42/292s.md?p=c-4) from, employment of the [caretaker relative](#e) (as defined in [subsection (e)](#e)) or because of [section 602(a)(8)(B)(ii)(II)](/usc/42/602.md)[^1] of this title (providing for a time-limited earned [income](/usc/42/292s.md?p=c-4) disregard), shall, subject to [paragraph (3)](#a-3) and without any reapplication for benefits under the plan, remain eligible for assistance under the plan approved under this subchapter during the immediately succeeding 6-month period in accordance with this subsection.
    - (B) **State option to waive requirement for 3 months before receipt of medical assistance—** A [State](/usc/42/1396b.md?p=w-7-D) may, at its option, elect also to apply [subparagraph (A)](#a-1-A) in the case of a [family](/usc/42/290ff–4.md?p=d-2) that was receiving such aid for fewer than three months or that had applied for and was eligible for such aid for fewer than 3 months during the 6 immediately preceding months described in such subparagraph.
  - (2) **Notice of benefits—** Each [State](/usc/42/1396b.md?p=w-7-D), in the notice of termination of aid under part A of subchapter IV sent to a [family](/usc/42/290ff–4.md?p=d-2) meeting the requirements of [paragraph (1)](#a-1)—
    - (A) shall notify the [family](/usc/42/290ff–4.md?p=d-2) of its right to extended medical assistance under this subsection and include in the notice a description of the reporting requirement of [subsection (b)(2)(B)(i)](#b-2-B-i) and of the circumstances (described in [paragraph (3)](#a-3)) under which such extension may be terminated; and
    - (B) shall include a card or other evidence of the [family](/usc/42/290ff–4.md?p=d-2)’s entitlement to assistance under this subchapter for the period provided in this subsection.
  - (3) **Termination of extension—**
    - (A) **No dependent child—** Subject to subparagraphs [(B)](#a-3-B) and [(C)](#a-3-C), extension of assistance during the 6-month period described in [paragraph (1)](#a-1) to a [family](/usc/42/290ff–4.md?p=d-2) shall terminate (during such period) at the close of the first month in which the [family](/usc/42/290ff–4.md?p=d-2) ceases to include a [child](/usc/42/416.md?p=e), whether or not the [child](/usc/42/416.md?p=e) is (or would if needy be) a dependent [child](/usc/42/416.md?p=e) under part A of subchapter IV.
    - (B) **Notice before termination—** No termination of assistance shall become effective under [subparagraph (A)](#a-3-A) until the [State](/usc/42/1396b.md?p=w-7-D) has provided the [family](/usc/42/290ff–4.md?p=d-2) with notice of the grounds for the termination.
    - (C) **Continuation in certain cases until redetermination—** With respect to a [child](/usc/42/416.md?p=e) who would cease to receive medical assistance because of [subparagraph (A)](#a-3-A) but who may be eligible for assistance under the [State](/usc/42/1396b.md?p=w-7-D) plan because the [child](/usc/42/416.md?p=e) is described in clause (i) of [section 1396d(a) of this title](/usc/42/1396d.md?p=a) or clause (i)(IV), (i)(VI), (i)(VII), or (ii)(IX) of [section 1396a(a)(10)(A) of this title](/usc/42/1396a.md?p=a-10-A), the [State](/usc/42/1396b.md?p=w-7-D) may not discontinue such assistance under such subparagraph until the [State](/usc/42/1396b.md?p=w-7-D) has determined that the [child](/usc/42/416.md?p=e) is not eligible for assistance under the plan.
  - (4) **Scope of coverage—**
    - (A) **In general—** Subject to [subparagraph (B)](#a-4-B), during the 6-month extension period under this subsection, the amount, duration, and scope of medical assistance made available with respect to a [family](/usc/42/290ff–4.md?p=d-2) shall be the same as if the [family](/usc/42/290ff–4.md?p=d-2) were still receiving aid under the plan approved under part A of subchapter IV.
    - (B) **State medicaid “wrap-around” option—** A [State](/usc/42/1396b.md?p=w-7-D), at its option, may pay a [family](/usc/42/290ff–4.md?p=d-2)’s expenses for premiums, deductibles, coinsurance, and similar costs for health insurance or other health coverage offered by an employer of the [caretaker relative](#e) or by an employer of the absent [parent](/usc/42/1396a.md?p=k-3) of a dependent [child](/usc/42/416.md?p=e). In the case of such coverage offered by an employer of the [caretaker relative](#e)—
      - (i) the [State](/usc/42/1396b.md?p=w-7-D) may require the [caretaker relative](#e), as a condition of extension of coverage under this subsection for the caretaker and the caretaker’s [family](/usc/42/290ff–4.md?p=d-2), to make application for such employer coverage, but only if—
        - (I) the [caretaker relative](#e) is not required to make financial contributions for such coverage (whether through payroll deduction, payment of deductibles, coinsurance, or similar costs, or otherwise), and
        - (II) the [State](/usc/42/1396b.md?p=w-7-D) provides, directly or otherwise, for payment of any of the premium amount, deductible, coinsurance, or similar expense that the [employee](/usc/42/1320a–7h.md?p=e-7) is otherwise required to pay; and
      - (ii) the [State](/usc/42/1396b.md?p=w-7-D) shall treat the coverage under such an employer plan as a third party liability (under [section 1396a(a)(25) of this title](/usc/42/1396a.md?p=a-25)).

      Payments for premiums, deductibles, coinsurance, and similar expenses under this subparagraph shall be considered, for purposes of [section 1396b(a) of this title](/usc/42/1396b.md?p=a), to be payments for medical assistance.

  - (5) **Option of 12-month initial eligibility period—** A [State](/usc/42/1396b.md?p=w-7-D) may elect to treat any reference in this subsection to a 6-month period (or 6 months) as a reference to a 12-month period (or 12 months). In the case of such an election, [subsection (b)](#b) shall not apply.
- (b) **Additional 6-month extension—**
  - (1) **Requirement—** Notwithstanding any other provision of this subchapter but subject to [subsection (a)(5)](#a-5), each [State](/usc/42/1396b.md?p=w-7-D) plan approved under this subchapter shall provide that the [State](/usc/42/1396b.md?p=w-7-D) shall offer to each [family](/usc/42/290ff–4.md?p=d-2), which has received assistance during the entire 6-month period under [subsection (a)](#a) and which meets the requirement of [paragraph (2)(B)(i)](#b-2-B-i), in the last month of the period the option of extending coverage under this subsection for the succeeding 6-month period, subject to [paragraph (3)](#b-3).
  - (2) **Notice and reporting requirements—**
    - (A) **Notices—**
      - (i) **Notice during initial extension period of option and requirements—** Each [State](/usc/42/1396b.md?p=w-7-D), during the 3rd and 6th month of any extended assistance furnished to a [family](/usc/42/290ff–4.md?p=d-2) under [subsection (a)](#a), shall notify the [family](/usc/42/290ff–4.md?p=d-2) of the [family](/usc/42/290ff–4.md?p=d-2)’s option for additional extended assistance under this subsection. Each such notice shall include (I) in the 3rd month notice, a statement of the reporting requirement under [subparagraph (B)(i)](#b-2-B-i), and, in the 6th month notice, a statement of the reporting requirement under subparagraph [(B)(ii)](#b-2-B-ii), (II) a statement as to whether any premiums are required for such additional extended assistance, and (III) a description of other out-of-pocket expenses, benefits, reporting and payment procedures, and any pre-existing condition limitations, waiting periods, or other coverage limitations imposed under any alternative coverage options offered under [paragraph (4)(D)](#b-4-D). The 6th month notice under this subparagraph shall describe the amount of any premium required of a particular [family](/usc/42/290ff–4.md?p=d-2) for each of the first 3 months of additional extended assistance under this subsection.
      - (ii) **Notice during additional extension period of reporting requirements and premiums—** Each [State](/usc/42/1396b.md?p=w-7-D), during the 3rd month of any additional extended assistance furnished to a [family](/usc/42/290ff–4.md?p=d-2) under this subsection, shall notify the [family](/usc/42/290ff–4.md?p=d-2) of the reporting requirement under [subparagraph (B)(ii)](#b-2-B-ii) and a statement of the amount of any premium required for such extended assistance for the succeeding 3 months.
    - (B) **Reporting requirements—**
      - (i) **During initial extension period—** Each [State](/usc/42/1396b.md?p=w-7-D) shall require (as a condition for additional extended assistance under this subsection) that a [family](/usc/42/290ff–4.md?p=d-2) receiving extended assistance under [subsection (a)](#a) report to the [State](/usc/42/1396b.md?p=w-7-D), not later than the 21st day of the 4th month in the period of extended assistance under [subsection (a)](#a), on the [family](/usc/42/290ff–4.md?p=d-2)’s gross monthly earnings and on the [family](/usc/42/290ff–4.md?p=d-2)’s costs for such [child](/usc/42/416.md?p=e) care as is necessary for the employment of the [caretaker relative](#e) in each of the first 3 months of that period. A [State](/usc/42/1396b.md?p=w-7-D) may permit such additional extended assistance under this subsection notwithstanding a failure to report under this clause if the [family](/usc/42/290ff–4.md?p=d-2) has established, to the satisfaction of the [State](/usc/42/1396b.md?p=w-7-D), good [cause](/usc/42/9908.md?p=c-2) for the failure to report on a timely basis.
      - (ii) **During additional extension period—** Each [State](/usc/42/1396b.md?p=w-7-D) shall require that a [family](/usc/42/290ff–4.md?p=d-2) receiving extended assistance under this subsection report to the [State](/usc/42/1396b.md?p=w-7-D), not later than the 21st day of the 1st month and of the 4th month in the period of additional extended assistance under this subsection, on the [family](/usc/42/290ff–4.md?p=d-2)’s gross monthly earnings and on the [family](/usc/42/290ff–4.md?p=d-2)’s costs for such [child](/usc/42/416.md?p=e) care as is necessary for the employment of the [caretaker relative](#e) in each of the 3 preceding months.
      - (iii) **Clarification on frequency of reporting—** A [State](/usc/42/1396b.md?p=w-7-D) may not require that a [family](/usc/42/290ff–4.md?p=d-2) receiving extended assistance under this subsection or [subsection (a)](#a) report more frequently than as required under clause [(i)](#b-2-B-i) or [(ii)](#b-2-B-ii).
  - (3) **Termination of extension—**
    - (A) **In general—** Subject to subparagraphs [(B)](#b-3-B) and [(C)](#b-3-C), extension of assistance during the 6-month period described in [paragraph (1)](#b-1) to a [family](/usc/42/290ff–4.md?p=d-2) shall terminate (during the period) as follows:
      - (i) **No dependent child—** The extension shall terminate at the close of the first month in which the [family](/usc/42/290ff–4.md?p=d-2) ceases to include a [child](/usc/42/416.md?p=e), whether or not the [child](/usc/42/416.md?p=e) is (or would if needy be) a dependent [child](/usc/42/416.md?p=e) under part A of subchapter IV.
      - (ii) **Failure to pay any premium—** If the [family](/usc/42/290ff–4.md?p=d-2) fails to pay any premium for a month under [paragraph (5)](#b-5) by the 21st day of the following month, the extension shall terminate at the close of that following month, unless the [family](/usc/42/290ff–4.md?p=d-2) has established, to the satisfaction of the [State](/usc/42/1396b.md?p=w-7-D), good [cause](/usc/42/9908.md?p=c-2) for the failure to pay such premium on a timely basis.
      - (iii) **Quarterly income reporting and test—** The extension under this subsection shall terminate at the close of the 1st or 4th month of the 6-month period if—
        - (I) the [family](/usc/42/290ff–4.md?p=d-2) fails to report to the [State](/usc/42/1396b.md?p=w-7-D), by the 21st day of such month, the information required under [paragraph (2)(B)(ii)](#b-2-B-ii), unless the [family](/usc/42/290ff–4.md?p=d-2) has established, to the satisfaction of the [State](/usc/42/1396b.md?p=w-7-D), good [cause](/usc/42/9908.md?p=c-2) for the failure to report on a timely basis;
        - (II) the [caretaker relative](#e) had no earnings in one or more of the previous 3 months, unless such lack of any earnings was due to an involuntary loss of employment, illness, or other good [cause](/usc/42/9908.md?p=c-2), established to the satisfaction of the [State](/usc/42/1396b.md?p=w-7-D); or
        - (III) the [State](/usc/42/1396b.md?p=w-7-D) determines that the [family](/usc/42/290ff–4.md?p=d-2)’s average gross monthly earnings (less such costs for such [child](/usc/42/416.md?p=e) care as is necessary for the employment of the [caretaker relative](#e)) during the immediately preceding 3-month period exceed 185 percent of the [official poverty line](/usc/42/254c–12.md?p=1) (as defined by the [Office](/usc/42/3058f.md?p=1) of Management and Budget, and revised annually in accordance with [section 9902(2) of this title](/usc/42/9902.md?p=2)) applicable to a [family](/usc/42/290ff–4.md?p=d-2) of the size involved.

      Information described in [clause (iii)(I)](#b-3-A-iii-I) shall be subject to the restrictions on use and disclosure of information provided under [section 602(a)(9)](/usc/42/602.md)[^1] of this title. Instead of terminating a [family](/usc/42/290ff–4.md?p=d-2)’s extension under [clause (iii)(I)](#b-3-A-iii-I), a [State](/usc/42/1396b.md?p=w-7-D), at its option, may provide for suspension of the extension until the month after the month in which the [family](/usc/42/290ff–4.md?p=d-2) reports information required under [paragraph (2)(B)(ii)](#b-2-B-ii), but only if the [family](/usc/42/290ff–4.md?p=d-2)’s extension has not otherwise been terminated under subclause [(II)](#b-3-A-iii-II) or [(III)](#b-3-A-iii-III) of clause (iii). The [State](/usc/42/1396b.md?p=w-7-D) shall make determinations under [clause (iii)(III)](#b-3-A-iii-III) for a [family](/usc/42/290ff–4.md?p=d-2) each time a report under [paragraph (2)(B)(ii)](#b-2-B-ii) for the [family](/usc/42/290ff–4.md?p=d-2) is received.

    - (B) **Notice before termination—** No termination of assistance shall become effective under [subparagraph (A)](#b-3-A) until the [State](/usc/42/1396b.md?p=w-7-D) has provided the [family](/usc/42/290ff–4.md?p=d-2) with notice of the grounds for the termination, which notice shall include (in the case of termination under [subparagraph (A)(iii)(II)](#b-3-A-iii-II), relating to no continued earnings) a description of how the [family](/usc/42/290ff–4.md?p=d-2) may reestablish eligibility for medical assistance under the [State](/usc/42/1396b.md?p=w-7-D) plan. No such termination shall be effective earlier than 10 days after the date of mailing of such notice.
    - (C) **Continuation in certain cases until redetermination—**
      - (i) **Dependent children—** With respect to a [child](/usc/42/416.md?p=e) who would cease to receive medical assistance because of [subparagraph (A)(i)](#b-3-A-i) but who may be eligible for assistance under the [State](/usc/42/1396b.md?p=w-7-D) plan because the [child](/usc/42/416.md?p=e) is described in clause (i) of [section 1396d(a) of this title](/usc/42/1396d.md?p=a) or clause (i)(IV), (i)(VI), (i)(VII), or (ii)(IX) of [section 1396a(a)(10)(A) of this title](/usc/42/1396a.md?p=a-10-A), the [State](/usc/42/1396b.md?p=w-7-D) may not discontinue such assistance under such subparagraph until the [State](/usc/42/1396b.md?p=w-7-D) has determined that the [child](/usc/42/416.md?p=e) is not eligible for assistance under the plan.
      - (ii) **Medically needy—** With respect to an individual who would cease to receive medical assistance because of clause [(ii)](#b-3-A-ii) or [(iii)](#b-3-A-iii) of subparagraph (A) but who may be eligible for assistance under the [State](/usc/42/1396b.md?p=w-7-D) plan because the individual is within a [category](/usc/42/1395w–4.md?p=j-1) of [person](/usc/42/1301.md?p=a-3) for which medical assistance under the [State](/usc/42/1396b.md?p=w-7-D) plan is available under [section 1396a(a)(10)(C) of this title](/usc/42/1396a.md?p=a-10-C) (relating to medically needy individuals), the [State](/usc/42/1396b.md?p=w-7-D) may not discontinue such assistance under such subparagraph until the [State](/usc/42/1396b.md?p=w-7-D) has determined that the individual is not eligible for assistance under the plan.
  - (4) **Coverage—**
    - (A) **In general—** During the extension period under this subsection—
      - (i) the [State](/usc/42/1396b.md?p=w-7-D) plan shall offer to each [family](/usc/42/290ff–4.md?p=d-2) medical assistance which (subject to subparagraphs [(B)](#b-4-B) and [(C)](#b-4-C)) is the same amount, duration, and scope as would be made available to the [family](/usc/42/290ff–4.md?p=d-2) if it were still receiving aid under the plan approved under part A of subchapter IV; and
      - (ii) the [State](/usc/42/1396b.md?p=w-7-D) plan may offer alternative coverage described in [subparagraph (D)](#b-4-D).
    - (B) **Elimination of most non-acute care benefits—** At a [State](/usc/42/1396b.md?p=w-7-D)’s option and notwithstanding any other provision of this subchapter, a [State](/usc/42/1396b.md?p=w-7-D) may choose not to provide medical assistance under this subsection with respect to any (or all) of the items and services described in paragraphs [(4)(A)](#b-4-A), (6), (7), (8), (11), (13), (14), (15), (16), (18), (20), and (21)[^1] of [section 1396d(a) of this title](/usc/42/1396d.md?p=a).
    - (C) **State medicaid “wrap-around” option—** At a [State](/usc/42/1396b.md?p=w-7-D)’s option, the [State](/usc/42/1396b.md?p=w-7-D) may elect to apply the option described in [subsection (a)(4)(B)](#a-4-B) (relating to “wrap-around” coverage) for [families](/usc/42/12704.md?p=11) electing medical assistance under this subsection in the same manner as such option applies to [families](/usc/42/12704.md?p=11) provided extended eligibility for medical assistance under [subsection (a)](#a).
    - (D) **Alternative assistance—** At a [State](/usc/42/1396b.md?p=w-7-D)’s option, the [State](/usc/42/1396b.md?p=w-7-D) may offer [families](/usc/42/12704.md?p=11) a choice of health care coverage under one or more of the following, instead of the medical assistance otherwise made available under this subsection:
      - (i) **Enrollment in family option of employer plan—** Enrollment of the [caretaker relative](#e) and dependent [children](/usc/42/256e.md?p=g-2) in a [family](/usc/42/290ff–4.md?p=d-2) option of the [group health plan](/usc/42/1320d–9.md?p=b-2) offered to the [caretaker relative](#e).
      - (ii) **Enrollment in family option of State employee plan—** Enrollment of the [caretaker relative](#e) and dependent [children](/usc/42/256e.md?p=g-2) in a [family](/usc/42/290ff–4.md?p=d-2) option within the options of the [group health plan](/usc/42/1320d–9.md?p=b-2) or plans offered by the [State](/usc/42/1396b.md?p=w-7-D) to [State](/usc/42/1396b.md?p=w-7-D) [employees](/usc/42/1320a–7h.md?p=e-7).
      - (iii) **Enrollment in State uninsured plan—** Enrollment of the [caretaker relative](#e) and dependent [children](/usc/42/256e.md?p=g-2) in a basic [State](/usc/42/1396b.md?p=w-7-D) [health plan](/usc/42/300jj.md?p=6) offered by the [State](/usc/42/1396b.md?p=w-7-D) to individuals in the [State](/usc/42/1396b.md?p=w-7-D) (or areas of the [State](/usc/42/1396b.md?p=w-7-D)) otherwise unable to obtain [health insurance coverage](/usc/42/1320d–9.md?p=b-2).
      - (iv) **Enrollment in medicaid managed care organization—** Enrollment of the [caretaker relative](#e) and dependent [children](/usc/42/256e.md?p=g-2) in a [medicaid managed care organization](/usc/42/1396b.md?p=m-1-A) (as defined in [section 1396b(m)(1)(A) of this title](/usc/42/1396b.md?p=m-1-A)).

      If a [State](/usc/42/1396b.md?p=w-7-D) elects to offer an option to enroll a [family](/usc/42/290ff–4.md?p=d-2) under this subparagraph, the [State](/usc/42/1396b.md?p=w-7-D) shall pay any premiums and other costs for such enrollment imposed on the [family](/usc/42/290ff–4.md?p=d-2) and may pay deductibles and coinsurance imposed on the [family](/usc/42/290ff–4.md?p=d-2). A [State](/usc/42/1396b.md?p=w-7-D)’s payment of premiums for the enrollment of [families](/usc/42/12704.md?p=11) under this subparagraph (not [including](/usc/42/1301.md?p=b) any premiums otherwise payable by an employer and less the amount of premiums collected from such [families](/usc/42/12704.md?p=11) under [paragraph (5)](#b-5)) and payment of any deductibles and coinsurance shall be considered, for purposes of [section 1396b(a)(1) of this title](/usc/42/1396b.md?p=a-1), to be payments for medical assistance.

    - (E) **Prohibition on cost-sharing for maternity and preventive pediatric care—**
      - (i) **In general—** If a [State](/usc/42/1396b.md?p=w-7-D) offers any alternative option under [subparagraph (D)](#b-4-D) for [families](/usc/42/12704.md?p=11), under each such option the [State](/usc/42/1396b.md?p=w-7-D) must assure that care described in [clause (ii)](#b-4-E-ii) is available without charge to the [families](/usc/42/12704.md?p=11) through—
        - (I) payment of any deductibles, coinsurance, and other [cost-sharing](/usc/42/18022.md?p=c-3-A) respecting such care, or
        - (II) providing coverage under the [State](/usc/42/1396b.md?p=w-7-D) plan for such care without any [cost-sharing](/usc/42/18022.md?p=c-3-A),

      or any combination of such mechanisms.

      - (ii) **Care described—** The care described in this clause consists of—
        - (I) services related to pregnancy ([including](/usc/42/1301.md?p=b) prenatal, delivery, and post partum services), and
        - (II) ambulatory preventive pediatric care ([including](/usc/42/1301.md?p=b) ambulatory early and periodic screening, diagnosis, and [treatment services](/usc/42/300x–34.md?p=7) under [section 1396d(a)(4)(B) of this title](/usc/42/1396d.md)) for each [child](/usc/42/416.md?p=e) who meets the age and date of birth requirements to be a qualified [child](/usc/42/416.md?p=e) under [section 1396d(n)(2) of this title](/usc/42/1396d.md?p=n-2).
  - (5) **Premium—**
    - (A) **Permitted—** Notwithstanding any other provision of this subchapter ([including](/usc/42/1301.md?p=b) [section 1396o](/usc/42/1396o.md) of this title), a [State](/usc/42/1396b.md?p=w-7-D) may impose a premium for a [family](/usc/42/290ff–4.md?p=d-2) for additional extended coverage under this subsection for a premium payment period (as defined in [subparagraph (D)(i)](#b-5-D-i)), but only if the [family](/usc/42/290ff–4.md?p=d-2)’s average gross monthly earnings (less the average monthly costs for such [child](/usc/42/416.md?p=e) care as is necessary for the employment of the [caretaker relative](#e)) for the [premium base period](#b-5-D-ii) exceed 100 percent of the [official poverty line](/usc/42/254c–12.md?p=1) (as defined by the [Office](/usc/42/3058f.md?p=1) of Management and Budget, and revised annually in accordance with [section 9902(2) of this title](/usc/42/9902.md?p=2)) applicable to a [family](/usc/42/290ff–4.md?p=d-2) of the size involved.
    - (B) **Level may vary by option offered—** The level of such premium may vary, for the same [family](/usc/42/290ff–4.md?p=d-2), for each option offered by a [State](/usc/42/1396b.md?p=w-7-D) under [paragraph (4)(D)](#b-4-D).
    - (C) **Limit on premium—** In no case may the amount of any premium under this paragraph for a [family](/usc/42/290ff–4.md?p=d-2) for a month in either of the premium payment periods described in [subparagraph (D)(i)](#b-5-D-i) exceed 3 percent of the [family](/usc/42/290ff–4.md?p=d-2)’s average gross monthly earnings (less the average monthly costs for such [child](/usc/42/416.md?p=e) care as is necessary for the employment of the [caretaker relative](#e)) during the [premium base period](#b-5-D-ii) (as defined in [subparagraph (D)(ii)](#b-5-D-ii)).
    - (D) **Definitions—** In this paragraph:
      - (i) A “premium payment period” described in this clause is a 3-month period beginning with the 1st or 4th month of the 6-month additional extension period provided under this subsection.
      - (ii) The term “premium base period” means, with respect to a particular premium payment period, the period of 3 consecutive months the last of which is 4 months before the beginning of that premium payment period.
- (c) **Applicability in States and territories—**
  - (1) **States operating under demonstration projects—** In the case of any [State](/usc/42/1396b.md?p=w-7-D) which is providing medical assistance to its residents under a waiver granted under [section 1315(a) of this title](/usc/42/1315.md?p=a), the [Secretary](/usc/42/1301.md?p=a-6) shall require the [State](/usc/42/1396b.md?p=w-7-D) to meet the requirements of this section in the same manner as the [State](/usc/42/1396b.md?p=w-7-D) would be required to meet such requirement if the [State](/usc/42/1396b.md?p=w-7-D) had in effect a plan approved under this subchapter.
  - (2) **Inapplicability in commonwealths and territories—** The provisions of this section shall only apply to the 50 [States](/usc/42/1396b.md?p=w-7-D) and the District of Columbia.
- (d) **General disqualification for fraud—**
  - (1) **Ineligibility for aid—** This section shall not apply to an individual who is a member of a [family](/usc/42/290ff–4.md?p=d-2) which has received aid under part A of subchapter IV if the [State](/usc/42/1396b.md?p=w-7-D) makes a finding that, at any time during the last 6 months in which the [family](/usc/42/290ff–4.md?p=d-2) was receiving such aid before otherwise being provided extended eligibility under this section, the individual was ineligible for such aid because of fraud.
  - (2) **General disqualifications—** For additional provisions relating to fraud and [program](/usc/42/274l–1.md?p=4) [abuse](/usc/42/1397j.md?p=1), see sections [1320a–7](/usc/42/1320a–7.md), [1320a–7a](/usc/42/1320a–7a.md), and [1320a–7b](/usc/42/1320a–7b.md) of this title.
- (e) **“Caretaker relative” defined—** In this section, the term “caretaker relative” has the meaning of such term as used in part A of subchapter IV.
- (f) **Collection and reporting of participation information—**
  - (1) **Collection of information from States—** Each [State](/usc/42/1396b.md?p=w-7-D) shall collect and submit to the [Secretary](/usc/42/1301.md?p=a-6) (and make publicly available), in a format specified by the [Secretary](/usc/42/1301.md?p=a-6), information on average monthly enrollment and average monthly participation rates for adults and [children](/usc/42/256e.md?p=g-2) under this section and of the number and percentage of [children](/usc/42/256e.md?p=g-2) who become ineligible for medical assistance under this section whose medical assistance is continued under another eligibility [category](/usc/42/1395w–4.md?p=j-1) or who are enrolled under the [State](/usc/42/1396b.md?p=w-7-D)’s [child](/usc/42/416.md?p=e) [health plan](/usc/42/300jj.md?p=6) under subchapter XXI. Such information shall be submitted at the same time and frequency in which other enrollment information under this subchapter is submitted to the [Secretary](/usc/42/1301.md?p=a-6).
  - (2) **Annual reports to Congress—** Using the information submitted under [paragraph (1)](#f-1), the [Secretary](/usc/42/1301.md?p=a-6) shall submit to Congress annual reports concerning enrollment and participation rates described in such paragraph.

# [§1396r–7. Repealed. Pub. L. 105–33, title IV, § 4713(a), Aug. 5, 1997, 111 Stat. 509 — repealed]



# §1396r–8. Payment for covered outpatient drugs

- (a) **Requirement for rebate agreement—**
  - (1) **In general—** In order for payment to be available under [section 1396b(a) of this title](/usc/42/1396b.md?p=a) or under part B of subchapter XVIII for [covered outpatient drugs](#k-2) of a [manufacturer](#k-5), the [manufacturer](#k-5) must have entered into and have in effect a rebate [agreement](/usc/42/1320b–8.md?p=a-3-A) described in [subsection (b)](#b) with the [Secretary](/usc/42/1301.md?p=a-6), on behalf of [States](/usc/42/1396b.md?p=w-7-D) (except that, the [Secretary](/usc/42/1301.md?p=a-6) may authorize a [State](/usc/42/1396b.md?p=w-7-D) to enter directly into [agreements](/usc/42/1320b–8.md?p=a-3-A) with a [manufacturer](#k-5)), and must meet the requirements of [paragraph (5)](#a-5) (with respect to [drugs](/usc/42/282.md?p=j-1-A-vii) purchased by a [covered entity](#a-5-B) on or after the first day of the first month that begins after November 4, 1992) and [paragraph (6)](#a-6). Any [agreement](/usc/42/1320b–8.md?p=a-3-A) between a [State](/usc/42/1396b.md?p=w-7-D) and a [manufacturer](#k-5) prior to April 1, 1991, shall be deemed to have been entered into on January 1, 1991, and payment to such [manufacturer](#k-5) shall be retroactively calculated as if the [agreement](/usc/42/1320b–8.md?p=a-3-A) between the [manufacturer](#k-5) and the [State](/usc/42/1396b.md?p=w-7-D) had been entered into on January 1, 1991. If a [manufacturer](#k-5) has not entered into such an [agreement](/usc/42/1320b–8.md?p=a-3-A) before March 1, 1991, such an [agreement](/usc/42/1320b–8.md?p=a-3-A), subsequently entered into, shall become effective as of the date on which the [agreement](/usc/42/1320b–8.md?p=a-3-A) is entered into or, at [State](/usc/42/1396b.md?p=w-7-D) option, on any date thereafter on or before the first day of the calendar quarter that begins more than 60 days after the date the [agreement](/usc/42/1320b–8.md?p=a-3-A) is entered into.
  - (2) **Effective date—** [Paragraph (1)](#a-1) shall first apply to [drugs](/usc/42/282.md?p=j-1-A-vii) dispensed under this subchapter on or after January 1, 1991.
  - (3) **Authorizing payment for drugs not covered under rebate agreements—** [Paragraph (1)](#a-1), and [section 1396b(i)(10)(A) of this title](/usc/42/1396b.md?p=i-10-A), shall not apply to the dispensing of a [single source drug](#k-7-A-iv) or [innovator multiple source drug](#k-7-A-ii) if (A)(i) the [State](/usc/42/1396b.md?p=w-7-D) has made a determination that the availability of the [drug](/usc/42/282.md?p=j-1-A-vii) is essential to the health of beneficiaries under the [State](/usc/42/1396b.md?p=w-7-D) plan for medical assistance; (ii) such [drug](/usc/42/282.md?p=j-1-A-vii) has been given a rating of 1–A by the Food and [Drug](/usc/42/282.md?p=j-1-A-vii) [Administration](/usc/42/1301.md?p=a-10); and (iii)(I) the [physician](/usc/42/1301.md?p=a-7) has obtained approval for use of the [drug](/usc/42/282.md?p=j-1-A-vii) in advance of its dispensing in accordance with a prior [authorization](/usc/42/4370m.md?p=3) [program](/usc/42/274l–1.md?p=4) described in subsection [(d)](#d), or (II) the [Secretary](/usc/42/1301.md?p=a-6) has reviewed and approved the [State](/usc/42/1396b.md?p=w-7-D)’s determination under subparagraph (A); or (B) the [Secretary](/usc/42/1301.md?p=a-6) determines that in the first calendar quarter of 1991, there were extenuating circumstances. The preceding sentence shall not apply to a [single source drug](#k-7-A-iv) or [innovator multiple source drug](#k-7-A-ii) of a [manufacturer](#k-5) for any period described in section 5000D(c)(1) of the Internal Revenue Code of 1986 with respect to the [manufacturer](#k-5).
  - (4) **Effect on existing agreements—** In the case of a rebate [agreement](/usc/42/1320b–8.md?p=a-3-A) in effect between a [State](/usc/42/1396b.md?p=w-7-D) and a [manufacturer](#k-5) on November 5, 1990, such [agreement](/usc/42/1320b–8.md?p=a-3-A), for the initial [agreement](/usc/42/1320b–8.md?p=a-3-A) period specified therein, shall be considered to be a rebate [agreement](/usc/42/1320b–8.md?p=a-3-A) in compliance with this section with respect to that [State](/usc/42/1396b.md?p=w-7-D), if the [State](/usc/42/1396b.md?p=w-7-D) agrees to report to the [Secretary](/usc/42/1301.md?p=a-6) any rebates paid pursuant to the [agreement](/usc/42/1320b–8.md?p=a-3-A) and such [agreement](/usc/42/1320b–8.md?p=a-3-A) provides for a minimum aggregate rebate of 10 percent of the [State](/usc/42/1396b.md?p=w-7-D)’s [total expenditures](/usc/42/1320f.md?p=c-5) under the [State](/usc/42/1396b.md?p=w-7-D) plan for coverage of the [manufacturer](#k-5)’s [drugs](/usc/42/282.md?p=j-1-A-vii) under this subchapter. If, after the initial [agreement](/usc/42/1320b–8.md?p=a-3-A) period, the [State](/usc/42/1396b.md?p=w-7-D) establishes to the satisfaction of the [Secretary](/usc/42/1301.md?p=a-6) that an [agreement](/usc/42/1320b–8.md?p=a-3-A) in effect on November 5, 1990, provides for rebates that are at least as large as the rebates otherwise required under this section, and the [State](/usc/42/1396b.md?p=w-7-D) agrees to report any rebates under the [agreement](/usc/42/1320b–8.md?p=a-3-A) to the [Secretary](/usc/42/1301.md?p=a-6), the [agreement](/usc/42/1320b–8.md?p=a-3-A) shall be considered to be a rebate [agreement](/usc/42/1320b–8.md?p=a-3-A) in compliance with the section for the renewal periods of such [agreement](/usc/42/1320b–8.md?p=a-3-A).
  - (5) **Limitation on prices of drugs purchased by covered entities—**
    - (A) **Agreement with Secretary—** A [manufacturer](#k-5) meets the requirements of this paragraph if the [manufacturer](#k-5) has entered into an [agreement](/usc/42/1320b–8.md?p=a-3-A) with the [Secretary](/usc/42/1301.md?p=a-6) that meets the requirements of [section 256b of this title](/usc/42/256b.md) with respect to [covered outpatient drugs](#k-2) purchased by a [covered entity](#a-5-B) on or after the first day of the first month that begins after November 4, 1992.
    - (B) **“Covered entity” defined—** In this subsection, the term “covered entity” means an entity described in [section 256b(a)(4) of this title](/usc/42/256b.md?p=a-4).
    - (C) **Establishment of alternative mechanism to ensure against duplicate discounts or rebates—** If the [Secretary](/usc/42/1301.md?p=a-6) does not establish a mechanism under [section 256b(a)(5)(A) of this title](/usc/42/256b.md?p=a-5-A) within 12 months of November 4, 1992, the following requirements shall apply:
      - (i) **Entities—** Each [covered entity](#a-5-B) shall inform the [single](/usc/42/2304.md?p=m) [State agency](/usc/42/1320a–7a.md?p=i-1) under [section 1396a(a)(5) of this title](/usc/42/1396a.md?p=a-5) when it is seeking reimbursement from the [State](/usc/42/1396b.md?p=w-7-D) plan for medical assistance described in [section 1396d(a)(12) of this title](/usc/42/1396d.md?p=a-12) with respect to a [unit](/usc/42/1395w–114b.md?p=g-2) of any [covered outpatient drug](#k-2) which is subject to an [agreement](/usc/42/1320b–8.md?p=a-3-A) under [section 256b(a) of this title](/usc/42/256b.md?p=a).
      - (ii) **State agency—** Each such [single](/usc/42/2304.md?p=m) [State agency](/usc/42/1320a–7a.md?p=i-1) shall provide a means by which a [covered entity](#a-5-B) shall indicate on any [drug](/usc/42/282.md?p=j-1-A-vii) reimbursement [claims](/usc/42/1320a–7a.md?p=i-2) form (or format, where electronic [claims](/usc/42/1320a–7a.md?p=i-2) management is used) that a [unit](/usc/42/1395w–114b.md?p=g-2) of the [drug](/usc/42/282.md?p=j-1-A-vii) that is the subject of the form is subject to an [agreement](/usc/42/1320b–8.md?p=a-3-A) under [section 256b of this title](/usc/42/256b.md), and not submit to any [manufacturer](#k-5) a [claim](/usc/42/1320a–7a.md?p=i-2) for a rebate payment under [subsection (b)](#b) with respect to such a [drug](/usc/42/282.md?p=j-1-A-vii).
    - (D) **Effect of subsequent amendments—** In determining whether an [agreement](/usc/42/1320b–8.md?p=a-3-A) under [subparagraph (A)](#a-5-A) meets the requirements of [section 256b of this title](/usc/42/256b.md), the [Secretary](/usc/42/1301.md?p=a-6) shall not take into account any amendments to such section that are enacted after November 4, 1992.
    - (E) **Determination of compliance—** A [manufacturer](#k-5) is deemed to meet the requirements of this paragraph if the [manufacturer](#k-5) establishes to the satisfaction of the [Secretary](/usc/42/1301.md?p=a-6) that the [manufacturer](#k-5) would comply (and has offered to comply) with the provisions of [section 256b of this title](/usc/42/256b.md) (as in effect immediately after November 4, 1992) and would have entered into an [agreement](/usc/42/1320b–8.md?p=a-3-A) under such section (as such section was in effect at such time), but for a legislative change in such section after November 4, 1992.
  - (6) **Requirements relating to master agreements for drugs procured by Department of Veterans Affairs and certain other Federal agencies—**
    - (A) **In general—** A [manufacturer](#k-5) meets the requirements of this paragraph if the [manufacturer](#k-5) complies with the provisions of [section 8126 of title 38](/usc/38/8126.md), [including](/usc/42/1301.md?p=b) the requirement of entering into a master [agreement](/usc/42/1320b–8.md?p=a-3-A) with the [Secretary](/usc/42/1301.md?p=a-6) of Veterans Affairs under such section.
    - (B) **Effect of subsequent amendments—** In determining whether a master [agreement](/usc/42/1320b–8.md?p=a-3-A) described in [subparagraph (A)](#a-6-A) meets the requirements of [section 8126 of title 38](/usc/38/8126.md), the [Secretary](/usc/42/1301.md?p=a-6) shall not take into account any amendments to such section that are enacted after November 4, 1992.
    - (C) **Determination of compliance—** A [manufacturer](#k-5) is deemed to meet the requirements of this paragraph if the [manufacturer](#k-5) establishes to the satisfaction of the [Secretary](/usc/42/1301.md?p=a-6) that the [manufacturer](#k-5) would comply (and has offered to comply) with the provisions of [section 8126 of title 38](/usc/38/8126.md), (as in effect immediately after November 4, 1992) and would have entered into an [agreement](/usc/42/1320b–8.md?p=a-3-A) under such section (as such section was in effect at such time), but for a legislative change in such section after November 4, 1992.
  - (7) **Requirement for submission of utilization data for certain physician administered drugs—**
    - (A) **Single source drugs—** In order for payment to be available under [section 1396b(a) of this title](/usc/42/1396b.md?p=a) for a [covered outpatient drug](#k-2) that is a [single source drug](#k-7-A-iv) that is [physician](/usc/42/1301.md?p=a-7) administered under this subchapter (as determined by the [Secretary](/usc/42/1301.md?p=a-6)), and that is administered on or after January 1, 2006, the [State](/usc/42/1396b.md?p=w-7-D) shall provide for the collection and submission of such utilization data and coding (such as J-codes and National Drug Code numbers) for each such [drug](/usc/42/282.md?p=j-1-A-vii) as the [Secretary](/usc/42/1301.md?p=a-6) may specify as necessary to identify the [manufacturer](#k-5) of the [drug](/usc/42/282.md?p=j-1-A-vii) in order to secure rebates under this section for [drugs](/usc/42/282.md?p=j-1-A-vii) administered for which payment is made under this subchapter.
    - (B) **Multiple source drugs—**
      - (i) **Identification of most frequently physician administered multiple source drugs—** Not later than January 1, 2007, the [Secretary](/usc/42/1301.md?p=a-6) shall publish a list of the 20 [physician](/usc/42/1301.md?p=a-7) administered [multiple source drugs](#k-7-A-i) that the [Secretary](/usc/42/1301.md?p=a-6) determines have the highest dollar volume of [physician](/usc/42/1301.md?p=a-7) administered [drugs](/usc/42/282.md?p=j-1-A-vii) dispensed under this subchapter. The [Secretary](/usc/42/1301.md?p=a-6) may modify such list from year to year to reflect changes in such volume.
      - (ii) **Requirement—** In order for payment to be available under [section 1396b(a) of this title](/usc/42/1396b.md?p=a) for a [covered outpatient drug](#k-2) that is a [multiple source drug](#k-7-A-i) that is [physician](/usc/42/1301.md?p=a-7) administered (as determined by the [Secretary](/usc/42/1301.md?p=a-6)), that is on the list published under [clause (i)](#a-7-B-i), and that is administered on or after January 1, 2008, the [State](/usc/42/1396b.md?p=w-7-D) shall provide for the submission of such utilization data and coding (such as J-codes and National Drug Code numbers) for each such [drug](/usc/42/282.md?p=j-1-A-vii) as the [Secretary](/usc/42/1301.md?p=a-6) may specify as necessary to identify the [manufacturer](#k-5) of the [drug](/usc/42/282.md?p=j-1-A-vii) in order to secure rebates under this section.
    - (C) **Use of NDC codes—** Not later than January 1, 2007, the information shall be submitted under subparagraphs [(A)](#a-7-A) and [(B)(ii)](#a-7-B-ii) using National Drug Code codes unless the [Secretary](/usc/42/1301.md?p=a-6) specifies that an alternative coding system should be used.
    - (D) **Hardship waiver—** The [Secretary](/usc/42/1301.md?p=a-6) may delay the application of subparagraph [(A)](#a-7-A) or [(B)(ii)](#a-7-B-ii), or both, in the case of a [State](/usc/42/1396b.md?p=w-7-D) to prevent hardship to [States](/usc/42/1396b.md?p=w-7-D) which require additional time to implement the reporting system required under the respective subparagraph.
- (b) **Terms of rebate agreement—**
  - (1) **Periodic rebates—**
    - (A) **In general—** A rebate [agreement](/usc/42/1320b–8.md?p=a-3-A) under this subsection shall require the [manufacturer](#k-5) to provide, to each [State](/usc/42/1396b.md?p=w-7-D) plan approved under this subchapter, a rebate for a [rebate period](#k-8) in an amount specified in [subsection (c)](#c) for [covered outpatient drugs](#k-2) of the [manufacturer](#k-5) dispensed after December 31, 1990, for which payment was made under the [State](/usc/42/1396b.md?p=w-7-D) plan for such period, [including](/usc/42/1301.md?p=b) such [drugs](/usc/42/282.md?p=j-1-A-vii) dispensed to individuals enrolled with a [medicaid managed care organization](/usc/42/1396b.md?p=m-1-A) if the organization is responsible for coverage of such [drugs](/usc/42/282.md?p=j-1-A-vii). Such rebate shall be paid by the [manufacturer](#k-5) not later than 30 days after the date of receipt of the information described in [paragraph (2)](#b-2) for the period involved.
    - (B) **Offset against medical assistance—** Amounts received by a [State](/usc/42/1396b.md?p=w-7-D) under this section (or under an [agreement](/usc/42/1320b–8.md?p=a-3-A) authorized by the [Secretary](/usc/42/1301.md?p=a-6) under [subsection (a)(1)](#a-1) or an [agreement](/usc/42/1320b–8.md?p=a-3-A) described in [subsection (a)(4)](#a-4)) in any quarter, [including](/usc/42/1301.md?p=b) amounts received by a [State](/usc/42/1396b.md?p=w-7-D) under [subsection (c)(4)](#c-4), shall be considered to be a reduction in the amount expended under the [State](/usc/42/1396b.md?p=w-7-D) plan in the quarter for medical assistance for purposes of [section 1396b(a)(1) of this title](/usc/42/1396b.md?p=a-1).
    - (C) **Special rule for increased minimum rebate percentage—**
      - (i) **In general—** In addition to the amounts applied as a reduction under [subparagraph (B)](#b-1-B), for [rebate periods](#k-8) beginning on or after January 1, 2010, during a fiscal year, the [Secretary](/usc/42/1301.md?p=a-6) shall reduce payments to a [State](/usc/42/1396b.md?p=w-7-D) under [section 1396b(a) of this title](/usc/42/1396b.md?p=a) in the manner specified in [clause (ii)](#b-1-C-ii), in an amount equal to the product of—
        - (I) 100 percent minus the Federal medical assistance percentage applicable to the [rebate period](#k-8) for the [State](/usc/42/1396b.md?p=w-7-D); and
        - (II) the amounts received by the [State](/usc/42/1396b.md?p=w-7-D) under such subparagraph that are attributable (as estimated by the [Secretary](/usc/42/1301.md?p=a-6) based on utilization and other data) to the increase in the minimum rebate percentage effected by the amendments made by subsections (a)(1), (b), and (d) of section 2501 of the Patient Protection and Affordable Care Act, taking into account the additional [drugs](/usc/42/282.md?p=j-1-A-vii) included under the amendments made by subsection (c) of section 2501 of such Act.

      The [Secretary](/usc/42/1301.md?p=a-6) shall adjust such payment reduction for a calendar quarter to the extent the [Secretary](/usc/42/1301.md?p=a-6) determines, based upon subsequent utilization and other data, that the reduction for such quarter was greater or less than the amount of payment reduction that should have been made.

      - (ii) **Manner of payment reduction—** The amount of the payment reduction under [clause (i)](#b-1-C-i) for a [State](/usc/42/1396b.md?p=w-7-D) for a quarter shall be deemed an overpayment to the [State](/usc/42/1396b.md?p=w-7-D) under this subchapter to be disallowed against the [State](/usc/42/1396b.md?p=w-7-D)’s regular quarterly draw for all [Medicaid](/usc/42/1396b.md?p=w-3-E-iii-III-aa) spending under [section 1396b(d)(2) of this title](/usc/42/1396b.md?p=d-2). Such a disallowance is not subject to a reconsideration under [section 1316(d) of this title](/usc/42/1316.md?p=d).
  - (2) **State provision of information—**
    - (A) **State responsibility—** Each [State agency](/usc/42/1320a–7a.md?p=i-1) under this subchapter shall report to each [manufacturer](#k-5) not later than 60 days after the end of each [rebate period](#k-8) and in a form consistent with a [standard](/usc/42/1320d.md?p=7) reporting format established by the [Secretary](/usc/42/1301.md?p=a-6), information on the total number of [units](/usc/42/1395w–114b.md?p=g-2) of each dosage form and strength and package size of each [covered outpatient drug](#k-2) dispensed after December 31, 1990, for which payment was made under the plan during the period, [including](/usc/42/1301.md?p=b) such information reported by each [medicaid managed care organization](/usc/42/1396b.md?p=m-1-A), and shall promptly transmit a copy of such report to the [Secretary](/usc/42/1301.md?p=a-6).
    - (B) **Audits—** A [manufacturer](#k-5) may audit the information provided (or required to be provided) under [subparagraph (A)](#b-2-A). Adjustments to rebates shall be made to the extent that information indicates that utilization was greater or less than the amount previously specified.
  - (3) **Manufacturer provision of price and drug product information—**
    - (A) **In general—** Each [manufacturer](#k-5) with an [agreement](/usc/42/1320b–8.md?p=a-3-A) in effect under this section shall report to the [Secretary](/usc/42/1301.md?p=a-6)—
      - (i) not later than 30 days after the last day of each [rebate period](#k-8) under the [agreement](/usc/42/1320b–8.md?p=a-3-A)—
        - (I) on the [average manufacturer price](#k-1-A) (as defined in [subsection (k)(1)](#k-1)) for [covered outpatient drugs](#k-2) for the [rebate period](#k-8) under the [agreement](/usc/42/1320b–8.md?p=a-3-A) ([including](/usc/42/1301.md?p=b) for all such [drugs](/usc/42/282.md?p=j-1-A-vii) that are sold under a new [drug](/usc/42/282.md?p=j-1-A-vii) application approved under [section 505(c)](/usc/42/505.md?p=c) of the Federal Food, [Drug](/usc/42/282.md?p=j-1-A-vii), and Cosmetic Act [[21 U.S.C. 355(c)](/usc/21/355.md?p=c)]); and
        - (II) for [single source drugs](#k-7-A-iv) and [innovator multiple source drugs](#k-7-A-ii) ([including](/usc/42/1301.md?p=b) all such [drugs](/usc/42/282.md?p=j-1-A-vii) that are sold under a new [drug](/usc/42/282.md?p=j-1-A-vii) application approved under [section 505(c)](/usc/42/505.md?p=c) of the Federal Food, [Drug](/usc/42/282.md?p=j-1-A-vii), and Cosmetic Act), on the [manufacturer](#k-5)’s [best price](#c-1-C-i) (as defined in [subsection (c)(1)(C)](#c-1-C)) for such [drugs](/usc/42/282.md?p=j-1-A-vii) for the [rebate period](#k-8) under the [agreement](/usc/42/1320b–8.md?p=a-3-A);
      - (ii) not later than 30 days after the date of entering into an [agreement](/usc/42/1320b–8.md?p=a-3-A) under this section on the [average manufacturer price](#k-1-A) (as defined in [subsection (k)(1)](#k-1)) as of October 1, 1990 for each of the [manufacturer](#k-5)’s [covered outpatient drugs](#k-2) ([including](/usc/42/1301.md?p=b) for such [drugs](/usc/42/282.md?p=j-1-A-vii) that are sold under a new [drug](/usc/42/282.md?p=j-1-A-vii) application approved under [section 505(c)](/usc/42/505.md?p=c) of the Federal Food, [Drug](/usc/42/282.md?p=j-1-A-vii), and Cosmetic Act);
      - (iii) for calendar quarters beginning on or after January 1, 2004, in conjunction with reporting required under [clause (i)](#b-3-A-i) and by National Drug Code ([including](/usc/42/1301.md?p=b) package size)—
        - (I) the [manufacturer](#k-5)’s average sales price (as defined in [section 1395w–3a(c) of this title](/usc/42/1395w–3a.md?p=c)) and the total number of [units](/usc/42/1395w–114b.md?p=g-2) specified under [section 1395w–3a(b)(2)(A) of this title](/usc/42/1395w–3a.md?p=b-2-A);
        - (II) if required to make payment under [section 1395w–3a of this title](/usc/42/1395w–3a.md), the [manufacturer](#k-5)’s [wholesale acquisition cost](/usc/42/300gg–121.md?p=f-10), as defined in [subsection (c)(6)](/usc/42/1395w–3a.md?p=c-6) of such section; and
        - (III) information on those sales that were made at a nominal price or otherwise described in [section 1395w–3a(c)(2)(B) of this title](/usc/42/1395w–3a.md?p=c-2-B);

      for a [drug](/usc/42/282.md?p=j-1-A-vii) or biological described in subparagraph [(C)](/usc/42/1395u.md?p=o-1-C), [(D)](/usc/42/1395u.md?p=o-1-D), [(E)](/usc/42/1395u.md?p=o-1-E), or [(G)](/usc/42/1395u.md?p=o-1-G) of section 1395u(o)(1) of this title or [section 1395rr(b)(14)(B) of this title](/usc/42/1395rr.md?p=b-14-B), and, for calendar quarters beginning on or after January 1, 2007 and only with respect to the information described in subclause (III), for [covered outpatient drugs](#k-2);

      - (iv) not later than 30 days after the last day of each month of a [rebate period](#k-8) under the [agreement](/usc/42/1320b–8.md?p=a-3-A), on the [manufacturer](#k-5)’s total number of [units](/usc/42/1395w–114b.md?p=g-2) that are used to calculate the monthly [average manufacturer price](#k-1-A) for each [covered outpatient drug](#k-2); and
      - (v) not later than 30 days after the last day of each month of a [rebate period](#k-8) under the [agreement](/usc/42/1320b–8.md?p=a-3-A), such [drug](/usc/42/282.md?p=j-1-A-vii) product information as the [Secretary](/usc/42/1301.md?p=a-6) shall require for each of the [manufacturer](#k-5)’s [covered outpatient drugs](#k-2).

      Information reported under this subparagraph is subject to audit by the Inspector General of the Department of Health and Human Services. Beginning July 1, 2006, the [Secretary](/usc/42/1301.md?p=a-6) shall provide on a monthly basis to [States](/usc/42/1396b.md?p=w-7-D) under [subparagraph (D)(iv)](#b-3-D-iv) the most recently reported [average manufacturer prices](#k-1-A) for [single source drugs](#k-7-A-iv) and for [multiple source drugs](#k-7-A-i) and shall, on at least a quarterly basis, update the information posted on the website under [subparagraph (D)(v)](#b-3-D-v) (relating to the weighted average of the most recently reported monthly [average manufacturer prices](#k-1-A)). For purposes of applying [clause (iii)](#b-3-A-iii), for calendar quarters beginning on or after January 1, 2022, a [drug](/usc/42/282.md?p=j-1-A-vii) or biological described in the flush matter following such clause [includes](/usc/42/1301.md?p=b) items, services, supplies, and products that are payable under part B of subchapter XVIII as a [drug](/usc/42/282.md?p=j-1-A-vii) or biological.

    - (B) **Verification surveys of average manufacturer price and manufacturer’s average sales price—** The [Secretary](/usc/42/1301.md?p=a-6) may survey [wholesalers](#k-11) and [manufacturers](#k-5) that directly distribute their [covered outpatient drugs](#k-2), when necessary, to verify [manufacturer](#k-5) prices and [manufacturer](#k-5)’s average sales prices ([including](/usc/42/1301.md?p=b) [wholesale acquisition cost](/usc/42/300gg–121.md?p=f-10)) if required to make payment reported under [subparagraph (A)](#b-3-A). The [Secretary](/usc/42/1301.md?p=a-6) may impose a civil monetary penalty in an amount not to exceed $100,000 on a [wholesaler](#k-11), [manufacturer](#k-5), or direct seller, if the [wholesaler](#k-11), [manufacturer](#k-5), or direct seller of a [covered outpatient drug](#k-2) refuses a request for information about charges or prices by the [Secretary](/usc/42/1301.md?p=a-6) in connection with a survey under this subparagraph or knowingly provides false information. The provisions of [section 1320a–7a of this title](/usc/42/1320a–7a.md) (other than [subsections (a)](#a) (with respect to amounts of penalties or additional assessments) and (b)) shall apply to a civil money penalty under this subparagraph in the same manner as such provisions apply to a penalty or proceeding under [section 1320a–7a(a) of this title](/usc/42/1320a–7a.md?p=a).
    - (C) **Penalties—**
      - (i) **Failure to provide timely information—** In the case of a [manufacturer](#k-5) with an [agreement](/usc/42/1320b–8.md?p=a-3-A) under this section that fails to provide information required under [subparagraph (A)](#b-3-A) on a timely basis, the amount of the penalty shall be increased by $10,000 for each day in which such information has not been provided and such amount shall be paid to the Treasury, and, if such information is not reported within 90 days of the deadline imposed, the [agreement](/usc/42/1320b–8.md?p=a-3-A) shall be suspended for services furnished after the end of such 90-day period and until the date such information is reported (but in no case shall such suspension be for a period of less than 30 days).
      - (ii) **False information—** Any [manufacturer](#k-5) with an [agreement](/usc/42/1320b–8.md?p=a-3-A) under this section that knowingly provides false information, [including](/usc/42/1301.md?p=b) information related to [drug](/usc/42/282.md?p=j-1-A-vii) pricing, [drug](/usc/42/282.md?p=j-1-A-vii) product information, and data related to [drug](/usc/42/282.md?p=j-1-A-vii) pricing or [drug](/usc/42/282.md?p=j-1-A-vii) product information, is subject to a civil money penalty in an amount not to exceed $100,000 for each item of false information. Such civil money penalties are in addition to other penalties as may be prescribed by law. The provisions of [section 1320a–7a of this title](/usc/42/1320a–7a.md) (other than subsections [(a)](#a), [(b)](#b), [(f)(3)](#f-3), and [(f)(4)](#f-4)) shall apply to a civil money penalty under this subparagraph in the same manner as such provisions apply to a penalty or proceeding under [section 1320a–7a(a) of this title](/usc/42/1320a–7a.md?p=a).
      - (iii) **Misclassified drug product or misreported information—**
        - (I) **In general—** Any [manufacturer](#k-5) with an [agreement](/usc/42/1320b–8.md?p=a-3-A) under this section that knowingly (as defined in [section 1003.110 of title 42, Code of Federal Regulations](/cfr/42/1003.110.md) (or any successor regulation)) misclassifies a [covered outpatient drug](#k-2), such as by knowingly submitting incorrect [drug](/usc/42/282.md?p=j-1-A-vii) product information, is subject to a civil money penalty for each [covered outpatient drug](#k-2) that is misclassified in an amount not to exceed 2 times the amount of the difference between—
          - (aa) the total amount of rebates that the [manufacturer](#k-5) paid with respect to the [drug](/usc/42/282.md?p=j-1-A-vii) to all [States](/usc/42/1396b.md?p=w-7-D) for all [rebate periods](#k-8) during which the [drug](/usc/42/282.md?p=j-1-A-vii) was misclassified; and
          - (bb) the total amount of rebates that the [manufacturer](#k-5) would have been required to pay, as determined by the [Secretary](/usc/42/1301.md?p=a-6) using [drug](/usc/42/282.md?p=j-1-A-vii) product information provided by the [manufacturer](#k-5), with respect to the [drug](/usc/42/282.md?p=j-1-A-vii) to all [States](/usc/42/1396b.md?p=w-7-D) for all [rebate periods](#k-8) during which the [drug](/usc/42/282.md?p=j-1-A-vii) was misclassified if the [drug](/usc/42/282.md?p=j-1-A-vii) had been correctly classified.
        - (II) **Other penalties and recovery of underpaid rebates—** The civil money penalties described in [subclause (I)](#b-3-C-iii-I) are in addition to other penalties as may be prescribed by law and any other recovery of the underlying underpayment for rebates due under this section or the terms of the rebate [agreement](/usc/42/1320b–8.md?p=a-3-A) as determined by the [Secretary](/usc/42/1301.md?p=a-6).
      - (iv) **Increasing oversight and enforcement—** Each year the [Secretary](/usc/42/1301.md?p=a-6) shall retain, in addition to any amount retained by the [Secretary](/usc/42/1301.md?p=a-6) to recoup investigation and litigation costs related to the enforcement of the civil money penalties under this subparagraph and [subsection (c)(4)(B)(ii)(III)](#c-4-B-ii-III), an amount equal to 25 percent of the total amount of civil money penalties collected under this subparagraph and [subsection (c)(4)(B)(ii)(III)](#c-4-B-ii-III) for the year, and such retained amount shall be available to the [Secretary](/usc/42/1301.md?p=a-6), without further appropriation and until expended, for activities related to the oversight and enforcement of this section and [agreements](/usc/42/1320b–8.md?p=a-3-A) under this section, [including](/usc/42/1301.md?p=b)—
        - (I) improving [drug](/usc/42/282.md?p=j-1-A-vii) data reporting systems;
        - (II) evaluating and ensuring [manufacturer](#k-5) compliance with rebate obligations; and
        - (III) oversight and enforcement related to ensuring that [manufacturers](#k-5) accurately and fully report [drug](/usc/42/282.md?p=j-1-A-vii) information, [including](/usc/42/1301.md?p=b) data related to [drug](/usc/42/282.md?p=j-1-A-vii) classification.
    - (D) **Confidentiality of information—** Notwithstanding any other provision of law, information disclosed by [manufacturers](#k-5) or [wholesalers](#k-11) under this paragraph or under an [agreement](/usc/42/1320b–8.md?p=a-3-A) with the [Secretary](/usc/42/1301.md?p=a-6) of Veterans Affairs described in [subsection (a)(6)(A)](#a-6-A) (other than the [wholesale acquisition cost](/usc/42/300gg–121.md?p=f-10) for purposes of carrying out [section 1395w–3a of this title](/usc/42/1395w–3a.md)) is confidential and shall not be disclosed by the [Secretary](/usc/42/1301.md?p=a-6) or the [Secretary](/usc/42/1301.md?p=a-6) of Veterans Affairs or a [State agency](/usc/42/1320a–7a.md?p=i-1) (or contractor therewith) in a form which discloses the identity of a specific [manufacturer](#k-5) or [wholesaler](#k-11), prices charged for [drugs](/usc/42/282.md?p=j-1-A-vii) by such [manufacturer](#k-5) or [wholesaler](#k-11), except—
      - (i) as the [Secretary](/usc/42/1301.md?p=a-6) determines to be necessary to carry out this section, to carry out [section 1395w–3a of this title](/usc/42/1395w–3a.md) ([including](/usc/42/1301.md?p=b) the determination and implementation of the payment amount and the rebate), or to carry out [section 1395w–3b of this title](/usc/42/1395w–3b.md), [section 1320f–1(f) of this title](/usc/42/1320f–1.md?p=f), [including](/usc/42/1301.md?p=b) rebates under [paragraph (4)](/usc/42/1320f–1.md?p=f-4) of such section, or [section 1395w–114b of this title](/usc/42/1395w–114b.md),
      - (ii) to permit the Comptroller General to review the information provided,
      - (iii) to permit the [Director](/usc/42/5061.md?p=1) of the Congressional Budget [Office](/usc/42/3058f.md?p=1) to review the information provided,
      - (iv) to [States](/usc/42/1396b.md?p=w-7-D) to carry out this subchapter,
      - (v) to the [Secretary](/usc/42/1301.md?p=a-6) to disclose (through a website accessible to the public) the weighted average of the most recently reported monthly [average manufacturer prices](#k-1-A) and the average retail survey price determined for each [multiple source drug](#k-7-A-i) in accordance with [subsection (f)](#f),
      - (vi) in the case of [categories](/usc/42/1395w–4.md?p=j-1) of [drug](/usc/42/282.md?p=j-1-A-vii) product or classification information that were not considered confidential by the [Secretary](/usc/42/1301.md?p=a-6) on the day before April 18, 2019, and
      - (vii) to permit the [Executive Director](/usc/42/4370m.md?p=12) of the Medicare Payment Advisory [Commission](/usc/42/2000ff.md?p=1) and the [Executive Director](/usc/42/4370m.md?p=12) of the [Medicaid](/usc/42/1396b.md?p=w-3-E-iii-III-aa) and CHIP Payment and Access [Commission](/usc/42/2000ff.md?p=1) to review the information provided.

      The previous sentence shall also apply to information disclosed under section [1395w–102(d)(2)](/usc/42/1395w–102.md?p=d-2) or [1395w–104(c)(2)(G)](/usc/42/1395w–104.md?p=c-2-G) of this title and [drug](/usc/42/282.md?p=j-1-A-vii) pricing data reported under the first sentence of [section 1395w–141(i)(1) of this title](/usc/42/1395w–141.md?p=i-1). Any information disclosed to the [Executive Director](/usc/42/4370m.md?p=12) of the Medicare Payment Advisory [Commission](/usc/42/2000ff.md?p=1) or the [Executive Director](/usc/42/4370m.md?p=12) of the [Medicaid](/usc/42/1396b.md?p=w-3-E-iii-III-aa) and CHIP Payment and Access [Commission](/usc/42/2000ff.md?p=1) pursuant to this subparagraph shall not be disclosed by either such [Executive Director](/usc/42/4370m.md?p=12) in a form which discloses the identity of a specific [manufacturer](#k-5) or [wholesaler](#k-11) or prices charged for [drugs](/usc/42/282.md?p=j-1-A-vii) by such [manufacturer](#k-5) or [wholesaler](#k-11). Such information also shall not be disclosed by either such [Executive Director](/usc/42/4370m.md?p=12) to individual [Commissioners](/usc/42/12302.md?p=1) of the Medicare Payment Advisory [Commission](/usc/42/2000ff.md?p=1) or of the [Medicaid](/usc/42/1396b.md?p=w-3-E-iii-III-aa) and CHIP Payment and Access [Commission](/usc/42/2000ff.md?p=1) in a form which discloses the identity of a specific [manufacturer](#k-5) or [wholesaler](#k-11) or prices charged for [drugs](/usc/42/282.md?p=j-1-A-vii) by such [manufacturer](#k-5) or [wholesaler](#k-11).

  - (4) **Length of agreement—**
    - (A) **In general—** A rebate [agreement](/usc/42/1320b–8.md?p=a-3-A) shall be effective for an initial period of not less than 1 year and shall be automatically renewed for a period of not less than one year unless terminated under [subparagraph (B)](#b-4-B).
    - (B) **Termination—**
      - (i) **By the Secretary—** The [Secretary](/usc/42/1301.md?p=a-6) may provide for termination of a rebate [agreement](/usc/42/1320b–8.md?p=a-3-A) for [violation](/usc/42/2000e–16a.md?p=c) of the requirements of the [agreement](/usc/42/1320b–8.md?p=a-3-A) or other good [cause](/usc/42/9908.md?p=c-2) shown. Such termination shall not be effective earlier than 60 days after the date of notice of such termination. The [Secretary](/usc/42/1301.md?p=a-6) shall provide, upon request, a [manufacturer](#k-5) with a hearing concerning such a termination, but such hearing shall not delay the effective date of the termination.
      - (ii) **By a manufacturer—** A [manufacturer](#k-5) may terminate a rebate [agreement](/usc/42/1320b–8.md?p=a-3-A) under this section for any reason. Any such termination shall not be effective until the calendar quarter beginning at least 60 days after the date the [manufacturer](#k-5) provides notice to the [Secretary](/usc/42/1301.md?p=a-6).
      - (iii) **Effectiveness of termination—** Any termination under this subparagraph shall not affect rebates due under the [agreement](/usc/42/1320b–8.md?p=a-3-A) before the effective date of its termination.
      - (iv) **Notice to States—** In the case of a termination under this subparagraph, the [Secretary](/usc/42/1301.md?p=a-6) shall provide notice of such termination to the [States](/usc/42/1396b.md?p=w-7-D) within not less than 30 days before the effective date of such termination.
      - (v) **Application to terminations of other agreements—** The provisions of this subparagraph shall apply to the terminations of [agreements](/usc/42/1320b–8.md?p=a-3-A) described in [section 256b(a)(1) of this title](/usc/42/256b.md?p=a-1) and master [agreements](/usc/42/1320b–8.md?p=a-3-A) described in [section 8126(a) of title 38](/usc/38/8126.md?p=a).
    - (C) **Delay before reentry—** In the case of any rebate [agreement](/usc/42/1320b–8.md?p=a-3-A) with a [manufacturer](#k-5) under this section which is terminated, another such [agreement](/usc/42/1320b–8.md?p=a-3-A) with the [manufacturer](#k-5) (or a successor [manufacturer](#k-5)) may not be entered into until a period of 1 calendar quarter has elapsed since the date of the termination, unless the [Secretary](/usc/42/1301.md?p=a-6) finds good [cause](/usc/42/9908.md?p=c-2) for an earlier reinstatement of such an [agreement](/usc/42/1320b–8.md?p=a-3-A).
- (c) **Determination of amount of rebate—**
  - (1) **Basic rebate for single source drugs and innovator multiple source drugs—**
    - (A) **In general—** Except as provided in [paragraph (2)](#c-2), the amount of the rebate specified in this subsection for a [rebate period](#k-8) (as defined in [subsection (k)(8)](#k-8)) with respect to each dosage form and strength of a [single source drug](#k-7-A-iv) or an [innovator multiple source drug](#k-7-A-ii) shall be equal to the product of—
      - (i) the total number of [units](/usc/42/1395w–114b.md?p=g-2) of each dosage form and strength paid for under the [State](/usc/42/1396b.md?p=w-7-D) plan in the [rebate period](#k-8) (as reported by the [State](/usc/42/1396b.md?p=w-7-D)); and
      - (ii) subject to [subparagraph (B)(ii)](#c-1-B-ii), the greater of—
        - (I) the difference between the [average manufacturer price](#k-1-A) and the [best price](#c-1-C-i) (as defined in [subparagraph (C)](#c-1-C)) for the dosage form and strength of the [drug](/usc/42/282.md?p=j-1-A-vii), or
        - (II) the minimum rebate percentage (specified in [subparagraph (B)(i)](#c-1-B-i)) of such [average manufacturer price](#k-1-A),

      for the [rebate period](#k-8).

    - (B) **Range of rebates required—**
      - (i) **Minimum rebate percentage—** For purposes of [subparagraph (A)(ii)(II)](#c-1-A-ii-II), the “minimum rebate percentage” for [rebate periods](#k-8) beginning—
        - (I) after December 31, 1990, and before October 1, 1992, is 12.5 percent;
        - (II) after September 30, 1992, and before January 1, 1994, is 15.7 percent;
        - (III) after December 31, 1993, and before January 1, 1995, is 15.4 percent;
        - (IV) after December 31, 1994, and before January 1, 1996, is 15.2 percent;
        - (V) after December 31, 1995, and before January 1, 2010[^1] is 15.1 percent; and
        - (VI) except as provided in [clause (iii)](#c-1-B-iii), after December 31, 2009,[^2] 23.1 percent.
      - (ii) **Temporary limitation on maximum rebate amount—** In no case shall the amount applied under [subparagraph (A)(ii)](#c-1-A-ii) for a [rebate period](#k-8) beginning—
        - (I) before January 1, 1992, exceed 25 percent of the [average manufacturer price](#k-1-A); or
        - (II) after December 31, 1991, and before January 1, 1993, exceed 50 percent of the [average manufacturer price](#k-1-A).
      - (iii) **Minimum rebate percentage for certain drugs—**
        - (I) **In general—** In the case of a [single source drug](#k-7-A-iv) or an [innovator multiple source drug](#k-7-A-ii) described in [subclause (II)](#c-1-B-iii-II), the minimum rebate percentage for [rebate periods](#k-8) specified in [clause (i)(VI)](#c-1-B-i-VI) is 17.1 percent.
        - (II) **Drug described—** For purposes of [subclause (I)](#c-1-B-iii-I), a [single source drug](#k-7-A-iv) or an [innovator multiple source drug](#k-7-A-ii) described in this subclause is any of the following [drugs](/usc/42/282.md?p=j-1-A-vii):
          - (aa) A clotting factor for which a separate furnishing payment is made under [section 1395u(o)(5)](/usc/42/1395u.md?p=o-5) of this title and which is included on a list of such factors specified and updated regularly by the [Secretary](/usc/42/1301.md?p=a-6).
          - (bb) A [drug](/usc/42/282.md?p=j-1-A-vii) approved by the Food and [Drug](/usc/42/282.md?p=j-1-A-vii) [Administration](/usc/42/1301.md?p=a-10) exclusively for pediatric indications.
    - (C) **“Best price” defined—** For purposes of this section—
      - (i) **In general—** The term “best price” means, with respect to a [single source drug](#k-7-A-iv) or [innovator multiple source drug](#k-7-A-ii) of a [manufacturer](#k-5) ([including](/usc/42/1301.md?p=b) the lowest price available to any entity for any such [drug](/usc/42/282.md?p=j-1-A-vii) of a [manufacturer](#k-5) that is sold under a new [drug](/usc/42/282.md?p=j-1-A-vii) application approved under [section 505(c)](/usc/42/505.md?p=c) of the Federal Food, [Drug](/usc/42/282.md?p=j-1-A-vii), and Cosmetic Act [[21 U.S.C. 355(c)](/usc/21/355.md?p=c)]), the lowest price available from the [manufacturer](#k-5) during the [rebate period](#k-8) to any [wholesaler](#k-11), retailer, provider, health maintenance organization, nonprofit entity, or governmental entity within the [United States](/usc/42/1301.md?p=a-2), excluding—
        - (I) any prices charged on or after October 1, 1992, to the [Indian](/usc/42/6862.md?p=6) Health Service, the Department of Veterans Affairs, a [State](/usc/42/1396b.md?p=w-7-D) home receiving [funds](/usc/42/12854.md?p=3) under [section 1741 of title 38](/usc/38/1741.md), the Department of Defense, the Public Health Service, or a covered entity described in [subsection (a)(5)(B)](#a-5-B) ([including](/usc/42/1301.md?p=b) inpatient prices charged to [hospitals](/usc/42/1395dd.md?p=e-5) described in [section 256b(a)(4)(L) of this title](/usc/42/256b.md?p=a-4-L));
        - (II) any prices charged under the Federal Supply Schedule of the General Services [Administration](/usc/42/1301.md?p=a-10);
        - (III) any prices used under a [State pharmaceutical assistance program](/usc/42/1395w–151.md?p=a-17);
        - (IV) any depot prices and [single](/usc/42/2304.md?p=m) award contract prices, as defined by the [Secretary](/usc/42/1301.md?p=a-6), of any [agency](/usc/42/1397n–12.md?p=1) of the Federal Government;
        - (V) the prices negotiated from [drug](/usc/42/282.md?p=j-1-A-vii) [manufacturers](#k-5) for [covered discount card drugs](/usc/42/1395w–141.md?p=a-4-A) under an endorsed discount card [program](/usc/42/274l–1.md?p=4) under [section 1395w–141 of this title](/usc/42/1395w–141.md); and
        - (VI) subject to [clause (ii)(V)](#c-1-C-ii-V), any prices charged which are negotiated by a [prescription drug plan](/usc/42/1395w–154.md?p=d-2) under part D of subchapter XVIII, by an [MA–PD plan](/usc/42/1395w–151.md?p=a-9) under part C of such subchapter with respect to [covered part D drugs](/usc/42/1395w–141.md?p=a-4-A) or by a [qualified retiree prescription drug plan](/usc/42/1395w–114a.md?p=g-7) (as defined in [section 1395w–132(a)(2) of this title](/usc/42/1395w–132.md?p=a-2)) with respect to such [drugs](/usc/42/282.md?p=j-1-A-vii) on behalf of individuals entitled to benefits under part A or enrolled under part B of such subchapter, or any discounts provided by [manufacturers](#k-5) under the Medicare coverage gap discount [program](/usc/42/274l–1.md?p=4) under [section 1395w–114a of this title](/usc/42/1395w–114a.md) or under the [manufacturer](#k-5) discount [program](/usc/42/274l–1.md?p=4) under [section 1395w–114c of this title](/usc/42/1395w–114c.md).
      - (ii) **Special rules—** The term “[best price](#c-1-C-i)”—
        - (I) shall be inclusive of cash discounts, free goods that are contingent on any purchase requirement, volume discounts, and rebates (other than rebates under this section, [section 1395w–3a(i) of this title](/usc/42/1395w–3a.md?p=i), or [section 1395w–114b of this title](/usc/42/1395w–114b.md));
        - (II) shall be determined without regard to special packaging, labeling, or identifiers on the dosage form or product or package;
        - (III) shall not take into account prices that are merely nominal in amount[^3]
        - (IV) in the case of a [manufacturer](#k-5) that approves, allows, or otherwise permits any other [drug](/usc/42/282.md?p=j-1-A-vii) of the [manufacturer](#k-5) to be sold under a new [drug](/usc/42/282.md?p=j-1-A-vii) application approved under [section 505(c)](/usc/42/505.md?p=c) of the Federal Food, [Drug](/usc/42/282.md?p=j-1-A-vii), and Cosmetic Act [[21 U.S.C. 355(c)](/usc/21/355.md?p=c)], shall be inclusive of the lowest price for such authorized [drug](/usc/42/282.md?p=j-1-A-vii) available from the [manufacturer](#k-5) during the [rebate period](#k-8) to any [manufacturer](#k-5), [wholesaler](#k-11), retailer, provider, health maintenance organization, nonprofit entity, or governmental entity within the [United States](/usc/42/1301.md?p=a-2), excluding those prices described in [subclauses (I) through (IV)](#c-1-C-i-I..c-1-C-i-IV) of clause (i); and
        - (V) in the case of a [rebate period](#k-8) and a [covered outpatient drug](#k-2) that is a selected [drug](/usc/42/282.md?p=j-1-A-vii) (as referred to in [section 1320f–1(c) of this title](/usc/42/1320f–1.md?p=c)) during such [rebate period](#k-8), shall be inclusive of the [maximum fair price](/usc/42/1320f.md?p=c-3) (as defined in [section 1320f(c)(3) of this title](/usc/42/1320f.md?p=c-3)) for such [drug](/usc/42/282.md?p=j-1-A-vii) with respect to such period.
      - (iii) **Application of auditing and recordkeeping requirements—** With respect to a covered entity described in [section 256b(a)(4)(L) of this title](/usc/42/256b.md?p=a-4-L), any [drug](/usc/42/282.md?p=j-1-A-vii) purchased for inpatient use shall be subject to the auditing and recordkeeping requirements described in [section 256b(a)(5)(C) of this title](/usc/42/256b.md?p=a-5-C).
    - (D) **Limitation on sales at a nominal price—**
      - (i) **In general—** For purposes of [subparagraph (C)(ii)(III)](#c-1-C-ii-III) and [subsection (b)(3)(A)(iii)(III)](#b-3-A-iii-III), only sales by a [manufacturer](#k-5) of [covered outpatient drugs](#k-2) at nominal prices to the following shall be considered to be sales at a nominal price or merely nominal in amount:
        - (I) A covered entity described in [section 256b(a)(4) of this title](/usc/42/256b.md?p=a-4).
        - (II) An [intermediate care facility for the mentally retarded](/usc/42/1396d.md?p=d).
        - (III) A [State](/usc/42/1396b.md?p=w-7-D)-owned or operated [nursing facility](/usc/42/1396r.md?p=a).
        - (IV) An entity that—
          - (aa) is described in section 501(c)(3) of the Internal Revenue Code of 1986 and exempt from tax under [section 501(a)](/usc/42/501.md) of such Act or is [State](/usc/42/1396b.md?p=w-7-D)-owned or operated; and
          - (bb) would be a covered entity described in [section 256b(a)(4)](/usc/42/256b.md?p=a-4)[^4] of this title insofar as the entity provides the same type of services to the same type of populations as a covered entity described in such section provides, but does not receive funding under a provision of law referred to in such section;
        - (V) A public or nonprofit entity, or an entity based at an institution of higher learning whose primary purpose is to provide health care services to students of that institution, that provides a service or services described under [section 300(a) of this title](/usc/42/300.md?p=a).
        - (VI) Any other [facility](/usc/42/11049.md?p=4) or entity that the [Secretary](/usc/42/1301.md?p=a-6) determines is a safety net provider to which sales of such [drugs](/usc/42/282.md?p=j-1-A-vii) at a nominal price would be appropriate based on the factors described in [clause (ii)](#c-1-D-ii).
      - (ii) **Factors—** The factors described in this clause with respect to a [facility](/usc/42/11049.md?p=4) or entity are the following:
        - (I) The type of [facility](/usc/42/11049.md?p=4) or entity.
        - (II) The services provided by the [facility](/usc/42/11049.md?p=4) or entity.
        - (III) The patient population served by the [facility](/usc/42/11049.md?p=4) or entity.
        - (IV) The number of other [facilities](/usc/42/11049.md?p=4) or entities eligible to purchase at nominal prices in the same service area.
      - (iii) **Nonapplication—** [Clause (i)](#c-1-D-i) shall not apply with respect to sales by a [manufacturer](#k-5) at a nominal price of [covered outpatient drugs](#k-2) pursuant to a master [agreement](/usc/42/1320b–8.md?p=a-3-A) under [section 8126 of title 38](/usc/38/8126.md).
      - (iv) **Rule of construction—** Nothing in this subparagraph shall be construed to alter any existing statutory or regulatory prohibition on services with respect to an entity described in [clause (i)(IV)](#c-1-D-i-IV), [including](/usc/42/1301.md?p=b) the prohibition set forth in [section 300a–6 of this title](/usc/42/300a–6.md).
  - (2) **Additional rebate for single source and innovator multiple source drugs—**
    - (A) **In general—** The amount of the rebate specified in this subsection for a [rebate period](#k-8), with respect to each dosage form and strength of a [single source drug](#k-7-A-iv) or an [innovator multiple source drug](#k-7-A-ii), shall be increased by an amount equal to the product of—
      - (i) the total number of [units](/usc/42/1395w–114b.md?p=g-2) of such dosage form and strength dispensed after December 31, 1990, for which payment was made under the [State](/usc/42/1396b.md?p=w-7-D) plan for the [rebate period](#k-8); and
      - (ii) the amount (if any) by which—
        - (I) the [average manufacturer price](#k-1-A) for the dosage form and strength of the [drug](/usc/42/282.md?p=j-1-A-vii) for the period, exceeds
        - (II) the [average manufacturer price](#k-1-A) for such dosage form and strength for the calendar quarter beginning July 1, 1990 (without regard to whether or not the [drug](/usc/42/282.md?p=j-1-A-vii) has been sold or transferred to an entity, [including](/usc/42/1301.md?p=b) a division or subsidiary of the [manufacturer](#k-5), after the first day of such quarter), increased by the percentage by which the consumer price index for all urban consumers ([United States](/usc/42/1301.md?p=a-2) [city](/usc/42/12902.md?p=11) average) for the month before the month in which the [rebate period](#k-8) begins exceeds such index for September 1990.
    - (B) **Treatment of subsequently approved drugs—** In the case of a [covered outpatient drug](#k-2) approved by the Food and [Drug](/usc/42/282.md?p=j-1-A-vii) [Administration](/usc/42/1301.md?p=a-10) after October 1, 1990, [clause (ii)(II)](#c-2-A-ii-II) of subparagraph (A) shall be applied by substituting “the first full calendar quarter after the day on which the [drug](/usc/42/282.md?p=j-1-A-vii) was first marketed” for “the calendar quarter beginning July 1, 1990” and “the month prior to the first month of the first full calendar quarter after the day on which the [drug](/usc/42/282.md?p=j-1-A-vii) was first marketed” for “September 1990”.
    - (C) **Treatment of new formulations—**
      - (i) **In general—** In the case of a [drug](/usc/42/282.md?p=j-1-A-vii) that is a [line extension](#c-2-C) of a [single source drug](#k-7-A-iv) or an [innovator multiple source drug](#k-7-A-ii) that is an oral solid dosage form, the rebate obligation for a [rebate period](#k-8) with respect to such [drug](/usc/42/282.md?p=j-1-A-vii) under this subsection shall be the greater of the amount described in [clause (ii)](#c-2-C-ii) for such [drug](/usc/42/282.md?p=j-1-A-vii) or the amount described in [clause (iii)](#c-2-C-iii) for such [drug](/usc/42/282.md?p=j-1-A-vii).
      - (ii) **Amount 1—** For purposes of [clause (i)](#c-2-C-i), the amount described in this clause with respect to a [drug](/usc/42/282.md?p=j-1-A-vii) described in [clause (i)](#c-2-C-i) and [rebate period](#k-8) is the amount computed under [paragraph (1)](#c-1) for such [drug](/usc/42/282.md?p=j-1-A-vii), increased by the amount computed under [subparagraph (A)](#c-2-A) and, as applicable, [subparagraph (B)](#c-2-B) for such [drug](/usc/42/282.md?p=j-1-A-vii) and [rebate period](#k-8).
      - (iii) **Amount 2—** For purposes of [clause (i)](#c-2-C-i), the amount described in this clause with respect to a [drug](/usc/42/282.md?p=j-1-A-vii) described in [clause (i)](#c-2-C-i) and [rebate period](#k-8) is the amount computed under [paragraph (1)](#c-1) for such [drug](/usc/42/282.md?p=j-1-A-vii), increased by the product of—
        - (I) the [average manufacturer price](#k-1-A) for the [rebate period](#k-8) of the [line extension](#c-2-C) of a [single source drug](#k-7-A-iv) or an [innovator multiple source drug](#k-7-A-ii) that is an oral solid dosage form;
        - (II) the highest additional rebate (calculated as a percentage of [average manufacturer price](#k-1-A)) under this paragraph for the [rebate period](#k-8) for any strength of the original [single source drug](#k-7-A-iv) or [innovator multiple source drug](#k-7-A-ii); and
        - (III) the total number of [units](/usc/42/1395w–114b.md?p=g-2) of each dosage form and strength of the [line extension](#c-2-C) product paid for under the [State](/usc/42/1396b.md?p=w-7-D) plan in the [rebate period](#k-8) (as reported by the [State](/usc/42/1396b.md?p=w-7-D)).

      In this subparagraph, the term “line extension” means, with respect to a [drug](/usc/42/282.md?p=j-1-A-vii), a new formulation of the [drug](/usc/42/282.md?p=j-1-A-vii), such as an extended [release](/usc/42/9601.md?p=22) formulation, but does not include an [abuse](/usc/42/1397j.md?p=1)-deterrent formulation of the [drug](/usc/42/282.md?p=j-1-A-vii) (as determined by the [Secretary](/usc/42/1301.md?p=a-6)), regardless of whether such [abuse](/usc/42/1397j.md?p=1)-deterrent formulation is an extended [release](/usc/42/9601.md?p=22) formulation.

    - (D) **Maximum rebate amount—** In no case shall the sum of the amounts applied under [paragraph (1)(A)(ii)](#c-1-A-ii) and this paragraph with respect to each dosage form and strength of a [single source drug](#k-7-A-iv) or an [innovator multiple source drug](#k-7-A-ii) for a [rebate period](#k-8) beginning after December 31, 2009, and before January 1, 2024, exceed 100 percent of the [average manufacturer price](#k-1-A) of the [drug](/usc/42/282.md?p=j-1-A-vii).
  - (3) **Rebate for other drugs—**
    - (A) **In general—** Except as provided in [subparagraph (C)](#c-3-C), the amount of the rebate paid to a [State](/usc/42/1396b.md?p=w-7-D) for a [rebate period](#k-8) with respect to each dosage form and strength of [covered outpatient drugs](#k-2) (other than [single source drugs](#k-7-A-iv) and [innovator multiple source drugs](#k-7-A-ii)) shall be equal to the product of—
      - (i) the [applicable percentage](/usc/42/609.md?p=a-7-B-ii) (as described in [subparagraph (B)](#c-3-B)) of the [average manufacturer price](#k-1-A) for the dosage form and strength for the [rebate period](#k-8), and
      - (ii) the total number of [units](/usc/42/1395w–114b.md?p=g-2) of such dosage form and strength dispensed after December 31, 1990, for which payment was made under the [State](/usc/42/1396b.md?p=w-7-D) plan for the [rebate period](#k-8).
    - (B) **“Applicable percentage” defined—** For purposes of [subparagraph (A)(i)](#c-3-A-i), the “[applicable percentage](/usc/42/609.md?p=a-7-B-ii)” for [rebate periods](#k-8) beginning—
      - (i) before January 1, 1994, is 10 percent,
      - (ii) after December 31, 1993, and before January 1, 2010, is 11 percent;[^5] and
      - (iii) after December 31, 2009, is 13 percent.
    - (C) **Additional rebate—**
      - (i) **In general—** The amount of the rebate specified in this paragraph for a [rebate period](#k-8), with respect to each dosage form and strength of a [covered outpatient drug](#k-2) other than a [single source drug](#k-7-A-iv) or an [innovator multiple source drug](#k-7-A-ii) of a [manufacturer](#k-5), shall be increased in the manner that the rebate for a dosage form and strength of a [single source drug](#k-7-A-iv) or an [innovator multiple source drug](#k-7-A-ii) is increased under subparagraphs [(A)](#c-2-A) and [(D)](#c-2-D) of paragraph (2), except as provided in [clause (ii)](#c-3-C-ii).
      - (ii) **Special rules for application of provision—** In applying subparagraphs [(A)](#c-2-A) and [(D)](#c-2-D) of paragraph (2) under [clause (i)](#c-3-C-i)—
        - (I) the reference in [subparagraph (A)(i)](#c-3-A-i) of such paragraph to “1990” shall be deemed a reference to “2014”;
        - (II) subject to [clause (iii)](#c-3-C-iii), the reference in [subparagraph (A)(ii)](#c-3-A-ii) of such paragraph to “the calendar quarter beginning July 1, 1990” shall be deemed a reference to “the calendar quarter beginning July 1, 2014”; and
        - (III) subject to [clause (iii)](#c-3-C-iii), the reference in [subparagraph (A)(ii)](#c-3-A-ii) of such paragraph to “September 1990” shall be deemed a reference to “September 2014”;
        - (IV) the references in subparagraph (D) of such paragraph to “[paragraph (1)(A)(ii)](#c-1-A-ii)”, “this paragraph”, and “December 31, 2009” shall be deemed references to “[subparagraph (A)](#c-3-A)”, “this subparagraph”, and “December 31, 2014”, respectively; and
        - (V) any reference in such paragraph to a “[single source drug](#k-7-A-iv) or an [innovator multiple source drug](#k-7-A-ii)” shall be deemed to be a reference to a [drug](/usc/42/282.md?p=j-1-A-vii) to which [clause (i)](#c-3-C-i) applies.
      - (iii) **Special rule for certain noninnovator multiple source drugs—** In applying [paragraph (2)(A)(ii)(II)](#c-2-A-ii-II) under [clause (i)](#c-3-C-i) with respect to a [covered outpatient drug](#k-2) that is first marketed as a [drug](/usc/42/282.md?p=j-1-A-vii) other than a [single source drug](#k-7-A-iv) or an [innovator multiple source drug](#k-7-A-ii) after April 1, 2013, such paragraph shall be applied—
        - (I) by substituting “the [applicable quarter](#c-3-C-iv)” for “the calendar quarter beginning July 1, 1990”; and
        - (II) by substituting “the last month in such [applicable quarter](#c-3-C-iv)” for “September 1990”.
      - (iv) **Applicable quarter defined—** In this subsection, the term “applicable quarter” means, with respect to a [drug](/usc/42/282.md?p=j-1-A-vii) described in [clause (iii)](#c-3-C-iii), the fifth full calendar quarter after which the [drug](/usc/42/282.md?p=j-1-A-vii) is marketed as a [drug](/usc/42/282.md?p=j-1-A-vii) other than a [single source drug](#k-7-A-iv) or an [innovator multiple source drug](#k-7-A-ii).
  - (4) **Recovery of unpaid rebate amounts due to misclassification of covered outpatient drugs—**
    - (A) **In general—** If the [Secretary](/usc/42/1301.md?p=a-6) determines that a [manufacturer](#k-5) with an [agreement](/usc/42/1320b–8.md?p=a-3-A) under this section paid a lower per-[unit](/usc/42/1395w–114b.md?p=g-2) rebate amount to a [State](/usc/42/1396b.md?p=w-7-D) for a [rebate period](#k-8) as a result of the misclassification by the [manufacturer](#k-5) of a [covered outpatient drug](#k-2) (without regard to whether the [manufacturer](#k-5) knowingly made the misclassification or should have known that the misclassification would be made) than the per-[unit](/usc/42/1395w–114b.md?p=g-2) rebate amount that the [manufacturer](#k-5) would have paid to the [State](/usc/42/1396b.md?p=w-7-D) if the [drug](/usc/42/282.md?p=j-1-A-vii) had been correctly classified, the [manufacturer](#k-5) shall pay to the [State](/usc/42/1396b.md?p=w-7-D) an amount equal to the product of—
      - (i) the difference between—
        - (I) the per-[unit](/usc/42/1395w–114b.md?p=g-2) rebate amount paid to the [State](/usc/42/1396b.md?p=w-7-D) for the period; and
        - (II) the per-[unit](/usc/42/1395w–114b.md?p=g-2) rebate amount that the [manufacturer](#k-5) would have paid to the [State](/usc/42/1396b.md?p=w-7-D) for the period, as determined by the [Secretary](/usc/42/1301.md?p=a-6), if the [drug](/usc/42/282.md?p=j-1-A-vii) had been correctly classified; and
      - (ii) the total [units](/usc/42/1395w–114b.md?p=g-2) of the [drug](/usc/42/282.md?p=j-1-A-vii) paid for under the [State](/usc/42/1396b.md?p=w-7-D) plan in the period.
    - (B) **Authority to correct misclassifications—**
      - (i) **In general—** If the [Secretary](/usc/42/1301.md?p=a-6) determines that a [manufacturer](#k-5) with an [agreement](/usc/42/1320b–8.md?p=a-3-A) under this section has misclassified a [covered outpatient drug](#k-2) (without regard to whether the [manufacturer](#k-5) knowingly made the misclassification or should have known that the misclassification would be made), the [Secretary](/usc/42/1301.md?p=a-6) shall notify the [manufacturer](#k-5) of the misclassification and require the [manufacturer](#k-5) to correct the misclassification in a timely manner.
      - (ii) **Enforcement—** If, after receiving notice of a misclassification from the [Secretary](/usc/42/1301.md?p=a-6) under [clause (i)](#c-4-B-i), a [manufacturer](#k-5) fails to correct the misclassification by such time as the [Secretary](/usc/42/1301.md?p=a-6) shall require, until the [manufacturer](#k-5) makes such correction, the [Secretary](/usc/42/1301.md?p=a-6) may do any or all of the following:
        - (I) Correct the misclassification, using [drug](/usc/42/282.md?p=j-1-A-vii) product information provided by the [manufacturer](#k-5), on behalf of the [manufacturer](#k-5).
        - (II) Suspend the misclassified [drug](/usc/42/282.md?p=j-1-A-vii) and the [drug](/usc/42/282.md?p=j-1-A-vii)’s status as a [covered outpatient drug](#k-2) under the [manufacturer](#k-5)’s national rebate [agreement](/usc/42/1320b–8.md?p=a-3-A), and exclude the misclassified [drug](/usc/42/282.md?p=j-1-A-vii) from Federal financial participation in accordance with [section 1396b(i)(10)(E) of this title](/usc/42/1396b.md?p=i-10-E).
        - (III) Impose a civil money penalty (which shall be in addition to any other recovery or penalty which may be available under this section or any other provision of law) for each [rebate period](#k-8) during which the [drug](/usc/42/282.md?p=j-1-A-vii) is misclassified not to exceed an amount equal to the product of—
          - (aa) the total number of [units](/usc/42/1395w–114b.md?p=g-2) of each dosage form and strength of such misclassified [drug](/usc/42/282.md?p=j-1-A-vii) paid for under any [State](/usc/42/1396b.md?p=w-7-D) plan during such a [rebate period](#k-8); and
          - (bb) 23.1 percent of the [average manufacturer price](#k-1-A) for the dosage form and strength of such misclassified [drug](/usc/42/282.md?p=j-1-A-vii).
    - (C) **Reporting and transparency—**
      - (i) **In general—** The [Secretary](/usc/42/1301.md?p=a-6) shall submit a report to Congress on at least an annual basis that [includes](/usc/42/1301.md?p=b) information on the [covered outpatient drugs](#k-2) that have been identified as misclassified, any steps taken to reclassify such [drugs](/usc/42/282.md?p=j-1-A-vii), the actions the [Secretary](/usc/42/1301.md?p=a-6) has taken to ensure the payment of any rebate amounts which were unpaid as a result of such misclassification, and a disclosure of expenditures from the [fund](/usc/42/12854.md?p=3) created in [subsection (b)(3)(C)(iv)](#b-3-C-iv), [including](/usc/42/1301.md?p=b) an accounting of how such [funds](/usc/42/12854.md?p=3) have been allocated and spent in accordance with such subsection.
      - (ii) **Public access—** The [Secretary](/usc/42/1301.md?p=a-6) shall make the information contained in the report required under [clause (i)](#c-4-C-i) available to the public on a timely basis.
    - (D) **Other penalties and actions—** Actions taken and penalties imposed under this clause shall be in addition to other remedies available to the [Secretary](/usc/42/1301.md?p=a-6) [including](/usc/42/1301.md?p=b) terminating the [manufacturer](#k-5)’s rebate [agreement](/usc/42/1320b–8.md?p=a-3-A) for noncompliance with the terms of such [agreement](/usc/42/1320b–8.md?p=a-3-A) and shall not exempt a [manufacturer](#k-5) from, or preclude the [Secretary](/usc/42/1301.md?p=a-6) from pursuing, any civil money penalty under this subchapter or subchapter XI, or any other penalty or action as may be prescribed by law.
- (d) **Limitations on coverage of drugs—**
  - (1) **Permissible restrictions—**
    - (A) A [State](/usc/42/1396b.md?p=w-7-D) may subject to prior [authorization](/usc/42/4370m.md?p=3) any [covered outpatient drug](#k-2). Any such prior [authorization](/usc/42/4370m.md?p=3) [program](/usc/42/274l–1.md?p=4) shall comply with the requirements of [paragraph (5)](#d-5).
    - (B) A [State](/usc/42/1396b.md?p=w-7-D) may exclude or otherwise restrict coverage of a [covered outpatient drug](#k-2) if—
      - (i) the prescribed use is not for a medically accepted indication (as defined in [subsection (k)(6)](#k-6));
      - (ii) the [drug](/usc/42/282.md?p=j-1-A-vii) is contained in the list referred to in [paragraph (2)](#d-2);
      - (iii) the [drug](/usc/42/282.md?p=j-1-A-vii) is subject to such restrictions pursuant to an [agreement](/usc/42/1320b–8.md?p=a-3-A) between a [manufacturer](#k-5) and a [State](/usc/42/1396b.md?p=w-7-D) authorized by the [Secretary](/usc/42/1301.md?p=a-6) under [subsection (a)(1)](#a-1) or in effect pursuant to [subsection (a)(4)](#a-4); or
      - (iv) the [State](/usc/42/1396b.md?p=w-7-D) has excluded coverage of the [drug](/usc/42/282.md?p=j-1-A-vii) from its formulary established in accordance with [paragraph (4)](#d-4).
  - (2) **List of drugs subject to restriction—** The following [drugs](/usc/42/282.md?p=j-1-A-vii) or classes of [drugs](/usc/42/282.md?p=j-1-A-vii), or their medical uses, may be excluded from coverage or otherwise restricted:
    - (A) Agents when used for anorexia, weight loss, or weight gain.
    - (B) Agents when used to promote fertility.
    - (C) Agents when used for cosmetic purposes or hair growth.
    - (D) Agents when used for the symptomatic relief of cough and colds.
    - (E) Prescription vitamins and mineral products, except prenatal vitamins and fluoride preparations.
    - (F) Nonprescription [drugs](/usc/42/282.md?p=j-1-A-vii), except, in the case of pregnant women when recommended in accordance with the Guideline referred to in [section 1396d(bb)(2)(A) of this title](/usc/42/1396d.md?p=bb-2-A), agents approved by the Food and [Drug](/usc/42/282.md?p=j-1-A-vii) [Administration](/usc/42/1301.md?p=a-10) under the over-the-counter monograph process for purposes of promoting, and when used to promote, tobacco cessation.
    - (G) [Covered outpatient drugs](#k-2) which the [manufacturer](#k-5) seeks to require as a condition of sale that associated tests or monitoring services be purchased exclusively from the [manufacturer](#k-5) or its designee.
    - (H) Agents when used for the [treatment](/usc/42/11851.md?p=11) of sexual or erectile dysfunction, unless such agents are used to treat a condition, other than sexual or erectile dysfunction, for which the agents have been approved by the Food and [Drug](/usc/42/282.md?p=j-1-A-vii) [Administration](/usc/42/1301.md?p=a-10).
  - (3) **Update of drug listings—** The [Secretary](/usc/42/1301.md?p=a-6) shall, by regulation, periodically update the list of [drugs](/usc/42/282.md?p=j-1-A-vii) or classes of [drugs](/usc/42/282.md?p=j-1-A-vii) described in [paragraph (2)](#d-2) or their medical uses, which the [Secretary](/usc/42/1301.md?p=a-6) has determined, based on data collected by surveillance and utilization review [programs](/usc/42/274l–1.md?p=4) of [State](/usc/42/1396b.md?p=w-7-D) medical assistance [programs](/usc/42/274l–1.md?p=4), to be subject to clinical [abuse](/usc/42/1397j.md?p=1) or inappropriate use.
  - (4) **Requirements for formularies—** A [State](/usc/42/1396b.md?p=w-7-D) may establish a formulary if the formulary meets the following requirements:
    - (A) The formulary is developed by a committee consisting of [physicians](/usc/42/1396d.md?p=e), pharmacists, and other appropriate individuals appointed by the [Governor](/usc/42/6372.md?p=1) of the [State](/usc/42/1396b.md?p=w-7-D) (or, at the option of the [State](/usc/42/1396b.md?p=w-7-D), the [State](/usc/42/1396b.md?p=w-7-D)’s [drug](/usc/42/282.md?p=j-1-A-vii) use review [board](/usc/42/10261.md?p=2) established under [subsection (g)(3)](#g-3)).
    - (B) Except as provided in [subparagraph (C)](#d-4-C), the formulary [includes](/usc/42/1301.md?p=b) the [covered outpatient drugs](#k-2) of any [manufacturer](#k-5) which has entered into and complies with an [agreement](/usc/42/1320b–8.md?p=a-3-A) under [subsection (a)](#a) (other than any [drug](/usc/42/282.md?p=j-1-A-vii) excluded from coverage or otherwise restricted under [paragraph (2)](#d-2)).
    - (C) A [covered outpatient drug](#k-2) may be excluded with respect to the [treatment](/usc/42/11851.md?p=11) of a specific disease or condition for an identified population (if any) only if, based on the [drug](/usc/42/282.md?p=j-1-A-vii)’s labeling (or, in the case of a [drug](/usc/42/282.md?p=j-1-A-vii) the prescribed use of which is not approved under the Federal Food, [Drug](/usc/42/282.md?p=j-1-A-vii), and Cosmetic Act [[21 U.S.C. 301](/usc/21/301.md) et seq.] but is a medically accepted indication, based on information from the appropriate compendia described in [subsection (k)(6)](#k-6)), the excluded [drug](/usc/42/282.md?p=j-1-A-vii) does not have a significant, clinically meaningful therapeutic advantage in terms of safety, effectiveness, or clinical outcome of such [treatment](/usc/42/11851.md?p=11) for such population over other [drugs](/usc/42/282.md?p=j-1-A-vii) included in the formulary and there is a written explanation (available to the public) of the basis for the exclusion.
    - (D) The [State](/usc/42/1396b.md?p=w-7-D) plan permits coverage of a [drug](/usc/42/282.md?p=j-1-A-vii) excluded from the formulary (other than any [drug](/usc/42/282.md?p=j-1-A-vii) excluded from coverage or otherwise restricted under [paragraph (2)](#d-2)) pursuant to a prior [authorization](/usc/42/4370m.md?p=3) [program](/usc/42/274l–1.md?p=4) that is consistent with [paragraph (5)](#d-5).
    - (E) The formulary meets such other requirements as the [Secretary](/usc/42/1301.md?p=a-6) may impose in order to achieve [program](/usc/42/274l–1.md?p=4) savings consistent with protecting the health of [program](/usc/42/274l–1.md?p=4) beneficiaries.

    A prior [authorization](/usc/42/4370m.md?p=3) [program](/usc/42/274l–1.md?p=4) established by a [State](/usc/42/1396b.md?p=w-7-D) under [paragraph (5)](#d-5) is not a formulary subject to the requirements of this paragraph.

  - (5) **Requirements of prior authorization programs—** A [State](/usc/42/1396b.md?p=w-7-D) plan under this subchapter may require, as a condition of coverage or payment for a [covered outpatient drug](#k-2) for which Federal financial participation is available in accordance with this section, with respect to [drugs](/usc/42/282.md?p=j-1-A-vii) dispensed on or after July 1, 1991, the approval of the [drug](/usc/42/282.md?p=j-1-A-vii) before its dispensing for any medically accepted indication (as defined in [subsection (k)(6)](#k-6)) only if the system providing for such approval—
    - (A) provides response by telephone or other telecommunication device within 24 hours of a request for prior [authorization](/usc/42/4370m.md?p=3); and
    - (B) except with respect to the [drugs](/usc/42/282.md?p=j-1-A-vii) on the list referred to in [paragraph (2)](#d-2), provides for the dispensing of at least 72-hour supply of a covered outpatient prescription [drug](/usc/42/282.md?p=j-1-A-vii) in an emergency situation (as defined by the [Secretary](/usc/42/1301.md?p=a-6)).
  - (6) **Other permissible restrictions—** A [State](/usc/42/1396b.md?p=w-7-D) may impose limitations, with respect to all such [drugs](/usc/42/282.md?p=j-1-A-vii) in a therapeutic class, on the minimum or maximum quantities per prescription or on the number of refills, if such limitations are necessary to discourage waste, and may address instances of fraud or [abuse](/usc/42/1397j.md?p=1) by individuals in any manner authorized under this chapter.
  - (7) **Non-excludable drugs—** The following [drugs](/usc/42/282.md?p=j-1-A-vii) or classes of [drugs](/usc/42/282.md?p=j-1-A-vii), or their medical uses, shall not be excluded from coverage:
    - (A) Agents when used to promote smoking cessation, [including](/usc/42/1301.md?p=b) agents approved by the Food and [Drug](/usc/42/282.md?p=j-1-A-vii) [Administration](/usc/42/1301.md?p=a-10) under the over-the-counter monograph process for purposes of promoting, and when used to promote, tobacco cessation.
    - (B) Barbiturates.
    - (C) Benzodiazepines.
    - (D) [Drugs](/usc/42/282.md?p=j-1-A-vii) and [biological products](/usc/42/287a.md?p=a-1) described in subsection (ee)(1)(A) of [section 1396d of this title](/usc/42/1396d.md) that are furnished as medical assistance in accordance with [subsection (a)(29)](/usc/42/1396d.md?p=a-29) of such section and [section 1396a(a)(10)(A) of this title](/usc/42/1396a.md?p=a-10-A).
    - (E) [Drugs](/usc/42/282.md?p=j-1-A-vii) and [biological products](/usc/42/287a.md?p=a-1) to which [section 1396d(a)(4)(F) of this title](/usc/42/1396d.md) and subclause (XVIII) in the matter following subparagraph (G) of [section 1396a(a)(10) of this title](/usc/42/1396a.md?p=a-10) apply that are furnished as medical assistance in accordance with such section or clause, respectively, for the [treatment](/usc/42/11851.md?p=11) or prevention, of COVID–19, as described in such subparagraph or subclause, respectively, and [section 1396a(a)(10)(A) of this title](/usc/42/1396a.md?p=a-10-A).
- (e) **Treatment of pharmacy reimbursement limits—**
  - (1) **In general—** During the period beginning on January 1, 1991, and ending on December 31, 1994—
    - (A) a [State](/usc/42/1396b.md?p=w-7-D) may not reduce the payment limits established by regulation under this subchapter or any limitation described in [paragraph (3)](#e-3) with respect to the ingredient cost of a [covered outpatient drug](#k-2) or the dispensing fee for such a [drug](/usc/42/282.md?p=j-1-A-vii) below the limits in effect as of January 1, 1991, and
    - (B) except as provided in [paragraph (2)](#e-2), the [Secretary](/usc/42/1301.md?p=a-6) may not modify by regulation the formula established under [sections 447.331 through 447.334](/cfr/42/447.331..447.334.md) of title 42, Code of Federal Regulations, in effect on November 5, 1990, to reduce the limits described in [subparagraph (A)](#e-1-A).
  - (2) **Special rule—** If a [State](/usc/42/1396b.md?p=w-7-D) is not in compliance with the regulations described in [paragraph (1)(B)](#e-1-B), [paragraph (1)(A)](#e-1-A) shall not apply to such [State](/usc/42/1396b.md?p=w-7-D) until such [State](/usc/42/1396b.md?p=w-7-D) is in compliance with such regulations.
  - (3) **Effect on State maximum allowable cost limitations—** This section shall not supersede or affect provisions in effect prior to January 1, 1991, or after December 31, 1994, relating to any maximum allowable cost limitation established by a [State](/usc/42/1396b.md?p=w-7-D) for payment by the [State](/usc/42/1396b.md?p=w-7-D) for [covered outpatient drugs](#k-2), and rebates shall be made under this section without regard to whether or not payment by the [State](/usc/42/1396b.md?p=w-7-D) for such [drugs](/usc/42/282.md?p=j-1-A-vii) is subject to such a limitation or the amount of such a limitation.
  - (4) **][^6] Establishment of upper payment limits—** Subject to [paragraph (5)](#e-5), the [Secretary](/usc/42/1301.md?p=a-6) shall establish a Federal upper reimbursement limit for each [multiple source drug](#k-7-A-i) for which the FDA has rated three or more products therapeutically and pharmaceutically equivalent, regardless of whether all such additional formulations are rated as such and shall use only such formulations when determining any such upper limit.
  - (5) **Use of amp in upper payment limits—** The [Secretary](/usc/42/1301.md?p=a-6) shall calculate the Federal upper reimbursement limit established under [paragraph (4)](#e-4) as no less than 175 percent of the weighted average (determined on the basis of utilization) of the most recently reported monthly [average manufacturer prices](#k-1-A) for pharmaceutically and therapeutically equivalent [multiple source drug](#k-7-A-i) products that are available for purchase by [retail community pharmacies](#k-10) on a nationwide basis. The [Secretary](/usc/42/1301.md?p=a-6) shall implement a smoothing process for [average manufacturer prices](#k-1-A). Such process shall be similar to the smoothing process used in determining the average sales price of a [drug](/usc/42/282.md?p=j-1-A-vii) or biological under [section 1395w–3a of this title](/usc/42/1395w–3a.md).
- (f) **Survey of retail prices; State payment and utilization rates; and performance rankings—**
  - (1) **Survey of retail prices—**
    - (A) **Use of vendor—** The [Secretary](/usc/42/1301.md?p=a-6) may contract services for—
      - (i) with respect to a [retail community pharmacy](#k-10), the determination on a monthly basis of retail survey prices for [covered outpatient drugs](#k-2) that represent a nationwide average of consumer purchase prices for such [drugs](/usc/42/282.md?p=j-1-A-vii), net of all discounts and rebates (to the extent any information with respect to such discounts and rebates is available); and
      - (ii) the notification of the [Secretary](/usc/42/1301.md?p=a-6) when a [drug](/usc/42/282.md?p=j-1-A-vii) product that is therapeutically and pharmaceutically equivalent and bioequivalent becomes generally available.
    - (B) **Secretary response to notification of availability of multiple source products—** If contractor notifies the [Secretary](/usc/42/1301.md?p=a-6) under [subparagraph (A)(ii)](#f-1-A-ii) that a [drug](/usc/42/282.md?p=j-1-A-vii) product described in such subparagraph has become generally available, the [Secretary](/usc/42/1301.md?p=a-6) shall make a determination, within 7 days after receiving such notification, as to whether the product is now described in [subsection (e)(4)](#e-4).[^4]
    - (C) **Use of competitive bidding—** In contracting for such services, the [Secretary](/usc/42/1301.md?p=a-6) shall competitively bid for an outside vendor that has a demonstrated history in—
      - (i) surveying and determining, on a [representative](/usc/42/3058f.md?p=5) nationwide basis, retail prices for ingredient costs of prescription [drugs](/usc/42/282.md?p=j-1-A-vii);
      - (ii) working with [retail community pharmacies](#k-10), commercial payers, and [States](/usc/42/1396b.md?p=w-7-D) in obtaining and disseminating such price information; and
      - (iii) collecting and reporting such price information on at least a monthly basis.

      In contracting for such services, the [Secretary](/usc/42/1301.md?p=a-6) may waive such provisions of the Federal Acquisition Regulation as are necessary for the efficient implementation of this subsection, other than provisions relating to confidentiality of information and such other provisions as the [Secretary](/usc/42/1301.md?p=a-6) determines appropriate.

    - (D) **Additional provisions—** A contract with a vendor under this paragraph shall include such terms and conditions as the [Secretary](/usc/42/1301.md?p=a-6) shall specify, [including](/usc/42/1301.md?p=b) the following:
      - (i) The vendor must monitor the marketplace and report to the [Secretary](/usc/42/1301.md?p=a-6) each time there is a new [covered outpatient drug](#k-2) generally available.
      - (ii) The vendor must update the [Secretary](/usc/42/1301.md?p=a-6) no less often than monthly on the retail survey prices for [covered outpatient drugs](#k-2).
      - (iii) The contract shall be effective for a term of 2 years.
    - (E) **Availability of information to States—** Information on retail survey prices obtained under this paragraph, [including](/usc/42/1301.md?p=b) applicable information on [single source drugs](#k-7-A-iv), shall be provided to [States](/usc/42/1396b.md?p=w-7-D) on at least a monthly basis. The [Secretary](/usc/42/1301.md?p=a-6) shall devise and implement a means for providing access to each [State agency](/usc/42/1320a–7a.md?p=i-1) designated under [section 1396a(a)(5) of this title](/usc/42/1396a.md?p=a-5) with responsibility for the [administration](/usc/42/1301.md?p=a-10) or supervision of the [administration](/usc/42/1301.md?p=a-10) of the [State](/usc/42/1396b.md?p=w-7-D) plan under this subchapter of the retail survey price determined under this paragraph.
  - (2) **Annual State report—** Each [State](/usc/42/1396b.md?p=w-7-D) shall annually report to the [Secretary](/usc/42/1301.md?p=a-6) information on—
    - (A) the payment rates under the [State](/usc/42/1396b.md?p=w-7-D) plan under this subchapter for [covered outpatient drugs](#k-2);
    - (B) the dispensing fees paid under such plan for such [drugs](/usc/42/282.md?p=j-1-A-vii); and
    - (C) utilization rates for [noninnovator multiple source drugs](#k-7-A-iii) under such plan.
  - (3) **Annual State performance rankings—**
    - (A) **Comparative analysis—** The [Secretary](/usc/42/1301.md?p=a-6) annually shall compare, for the 50 most widely prescribed [drugs](/usc/42/282.md?p=j-1-A-vii) identified by the [Secretary](/usc/42/1301.md?p=a-6), the national retail sales price data (collected under [paragraph (1)](#f-1)) for such [drugs](/usc/42/282.md?p=j-1-A-vii) with data on prices under this subchapter for each such [drug](/usc/42/282.md?p=j-1-A-vii) for each [State](/usc/42/1396b.md?p=w-7-D).
    - (B) **Availability of information—** The [Secretary](/usc/42/1301.md?p=a-6) shall submit to Congress and the [States](/usc/42/1396b.md?p=w-7-D) full information regarding the annual rankings made under [subparagraph (A)](#f-3-A).
  - (4) **Appropriation—** Out of any [funds](/usc/42/12854.md?p=3) in the Treasury not otherwise appropriated, there is appropriated to the [Secretary](/usc/42/1301.md?p=a-6) of Health and Human Services $5,000,000 for each of fiscal years 2006 through 2010 to carry out this subsection.
- (g) **Drug use review—**
  - (1) **In general—**
    - (A) In order to meet the requirement of [section 1396a(a)(54) of this title](/usc/42/1396a.md?p=a-54), a [State](/usc/42/1396b.md?p=w-7-D) shall provide for a [drug](/usc/42/282.md?p=j-1-A-vii) use review [program](/usc/42/274l–1.md?p=4) described in [paragraph (2)](#g-2) for [covered outpatient drugs](#k-2) in order to assure that prescriptions (i) are appropriate, (ii) are medically necessary, and (iii) are not likely to result in adverse medical results. The [program](/usc/42/274l–1.md?p=4) shall be designed to educate [physicians](/usc/42/1396d.md?p=e) and pharmacists to identify and reduce the frequency of patterns of fraud, [abuse](/usc/42/1397j.md?p=1), gross overuse, excessive utilization, inappropriate or medically unnecessary care, or prescribing or billing [practices](/usc/42/17061.md?p=19) that indicate [abuse](/usc/42/1397j.md?p=1) or excessive utilization, among [physicians](/usc/42/1396d.md?p=e), pharmacists, and patients, or associated with specific [drugs](/usc/42/282.md?p=j-1-A-vii) or groups of [drugs](/usc/42/282.md?p=j-1-A-vii), as well as potential and actual severe adverse reactions to [drugs](/usc/42/282.md?p=j-1-A-vii) [including](/usc/42/1301.md?p=b) education on therapeutic appropriateness, overutilization and underutilization, appropriate use of generic products, therapeutic duplication, [drug](/usc/42/282.md?p=j-1-A-vii)-disease contraindications, [drug](/usc/42/282.md?p=j-1-A-vii)-[drug](/usc/42/282.md?p=j-1-A-vii) interactions, incorrect [drug](/usc/42/282.md?p=j-1-A-vii) dosage or duration of [drug](/usc/42/282.md?p=j-1-A-vii) [treatment](/usc/42/11851.md?p=11), [drug](/usc/42/282.md?p=j-1-A-vii)-allergy interactions, and clinical [abuse](/usc/42/1397j.md?p=1)/misuse.
    - (B) The [program](/usc/42/274l–1.md?p=4) shall assess data on [drug](/usc/42/282.md?p=j-1-A-vii) use against predetermined [standards](/usc/42/1320d.md?p=7), consistent with the following:
      - (i) compendia which shall consist of the following:
        - (I) American [Hospital](/usc/42/1395dd.md?p=e-5) Formulary Service [Drug](/usc/42/282.md?p=j-1-A-vii) Information;
        - (II) [United States](/usc/42/1301.md?p=a-2) Pharmacopeia-[Drug](/usc/42/282.md?p=j-1-A-vii) Information (or its successor publications); and
        - (III) the DRUGDEX Information System; and
      - (ii) the peer-reviewed medical literature.
    - (C) The [Secretary](/usc/42/1301.md?p=a-6), under the procedures established in [section 1396b of this title](/usc/42/1396b.md), shall pay to each [State](/usc/42/1396b.md?p=w-7-D) an amount equal to 75 per centum of so much of the sums expended by the [State](/usc/42/1396b.md?p=w-7-D) plan during calendar years 1991 through 1993 as the [Secretary](/usc/42/1301.md?p=a-6) determines is attributable to the statewide adoption of a [drug](/usc/42/282.md?p=j-1-A-vii) use review [program](/usc/42/274l–1.md?p=4) which conforms to the requirements of this subsection.
    - (D) [States](/usc/42/1396b.md?p=w-7-D) shall not be required to perform additional [drug](/usc/42/282.md?p=j-1-A-vii) use reviews with respect to [drugs](/usc/42/282.md?p=j-1-A-vii) dispensed to residents of [nursing facilities](/usc/42/1396r.md?p=a) which are in compliance with the [drug](/usc/42/282.md?p=j-1-A-vii) regimen review procedures prescribed by the [Secretary](/usc/42/1301.md?p=a-6) for such [facilities](/usc/42/11049.md?p=4) in regulations implementing [section 1396r of this title](/usc/42/1396r.md), currently at [section 483.60 of title 42, Code of Federal Regulations](/cfr/42/483.60.md).
  - (2) **Description of program—** Each [drug](/usc/42/282.md?p=j-1-A-vii) use review [program](/usc/42/274l–1.md?p=4) shall meet the following requirements for [covered outpatient drugs](#k-2):
    - (A) **Prospective drug review—**
      - (i) The [State](/usc/42/1396b.md?p=w-7-D) plan shall provide for a review of [drug](/usc/42/282.md?p=j-1-A-vii) therapy before each prescription is filled or delivered to an individual receiving benefits under this subchapter, typically at the point-of-sale or point of distribution. The review shall include screening for potential [drug](/usc/42/282.md?p=j-1-A-vii) therapy problems due to therapeutic duplication, [drug](/usc/42/282.md?p=j-1-A-vii)-disease contraindications, [drug](/usc/42/282.md?p=j-1-A-vii)-[drug](/usc/42/282.md?p=j-1-A-vii) interactions ([including](/usc/42/1301.md?p=b) serious interactions with nonprescription or over-the-counter [drugs](/usc/42/282.md?p=j-1-A-vii)), incorrect [drug](/usc/42/282.md?p=j-1-A-vii) dosage or duration of [drug](/usc/42/282.md?p=j-1-A-vii) [treatment](/usc/42/11851.md?p=11), [drug](/usc/42/282.md?p=j-1-A-vii)-allergy interactions, and clinical [abuse](/usc/42/1397j.md?p=1)/misuse. Each [State](/usc/42/1396b.md?p=w-7-D) shall use the compendia and literature referred to in [paragraph (1)(B)](#g-1-B) as its source of [standards](/usc/42/1320d.md?p=7) for such review.
      - (ii) As part of the [State](/usc/42/1396b.md?p=w-7-D)’s prospective [drug](/usc/42/282.md?p=j-1-A-vii) use review [program](/usc/42/274l–1.md?p=4) under this subparagraph applicable [State](/usc/42/1396b.md?p=w-7-D) law shall establish [standards](/usc/42/1320d.md?p=7) for counseling of individuals receiving benefits under this subchapter by pharmacists which [includes](/usc/42/1301.md?p=b) at least the following:
        - (I) The pharmacist must offer to discuss with each individual receiving benefits under this subchapter or [caregiver](/usc/42/1397j.md?p=3) of such individual (in [person](/usc/42/1301.md?p=a-3), whenever practicable, or through access to a telephone service which is toll-free for long-distance calls) who presents a prescription, matters which in the exercise of the pharmacist’s professional judgment (consistent with [State](/usc/42/1396b.md?p=w-7-D) law respecting the provision of such information), the pharmacist deems significant [including](/usc/42/1301.md?p=b) the following:
          - (aa) The name and description of the medication.
          - (bb) The route, dosage form, dosage, route of [administration](/usc/42/1301.md?p=a-10), and duration of [drug](/usc/42/282.md?p=j-1-A-vii) therapy.
          - (cc) Special directions and precautions for preparation, [administration](/usc/42/1301.md?p=a-10) and use by the patient.
          - (dd) Common severe side or adverse effects or interactions and therapeutic contraindications that may be encountered, [including](/usc/42/1301.md?p=b) their avoidance, and the action required if they occur.
          - (ee) Techniques for self-monitoring [drug](/usc/42/282.md?p=j-1-A-vii) therapy.
          - (ff) Proper storage.
          - (gg) Prescription refill information.
          - (hh) Action to be taken in the event of a missed dose.
        - (II) A reasonable effort must be made by the pharmacist to obtain, record, and maintain at least the following information regarding individuals receiving benefits under this subchapter:
          - (aa) Name, address, telephone number, date of birth (or age) and gender.
          - (bb) Individual history where significant, [including](/usc/42/1301.md?p=b) disease [state](/usc/42/1396b.md?p=w-7-D) or [states](/usc/42/1396b.md?p=w-7-D), known allergies and [drug](/usc/42/282.md?p=j-1-A-vii) reactions, and a comprehensive list of medications and relevant devices.
          - (cc) Pharmacist comments relevant to the individual’s [drug](/usc/42/282.md?p=j-1-A-vii) therapy.

        Nothing in this clause shall be construed as requiring a pharmacist to provide consultation when an individual receiving benefits under this subchapter or [caregiver](/usc/42/1397j.md?p=3) of such individual refuses such consultation, or to require verification of the offer to provide consultation or a refusal of such offer.

    - (B) **Retrospective drug use review—** The [program](/usc/42/274l–1.md?p=4) shall provide, through its mechanized [drug](/usc/42/282.md?p=j-1-A-vii) [claims](/usc/42/1320a–7a.md?p=i-2) processing and information retrieval systems (approved by the [Secretary](/usc/42/1301.md?p=a-6) under [section 1396b(r) of this title](/usc/42/1396b.md?p=r)) or otherwise, for the ongoing periodic examination of [claims](/usc/42/1320a–7a.md?p=i-2) data and other records in order to identify patterns of fraud, [abuse](/usc/42/1397j.md?p=1), gross overuse, excessive utilization, inappropriate or medically unnecessary care, or prescribing or billing [practices](/usc/42/17061.md?p=19) that indicate [abuse](/usc/42/1397j.md?p=1) or excessive utilization, among [physicians](/usc/42/1396d.md?p=e), pharmacists and individuals receiving benefits under this subchapter, or associated with specific [drugs](/usc/42/282.md?p=j-1-A-vii) or groups of [drugs](/usc/42/282.md?p=j-1-A-vii).
    - (C) **Application of standards—** The [program](/usc/42/274l–1.md?p=4) shall, on an ongoing basis, assess data on [drug](/usc/42/282.md?p=j-1-A-vii) use against explicit predetermined [standards](/usc/42/1320d.md?p=7) (using the compendia and literature referred to in subsection[^7] (1)(B) as the source of [standards](/usc/42/1320d.md?p=7) for such assessment) [including](/usc/42/1301.md?p=b) but not limited to monitoring for therapeutic appropriateness, overutilization and underutilization, appropriate use of generic products, therapeutic duplication, [drug](/usc/42/282.md?p=j-1-A-vii)-disease contraindications, [drug](/usc/42/282.md?p=j-1-A-vii)-[drug](/usc/42/282.md?p=j-1-A-vii) interactions, incorrect [drug](/usc/42/282.md?p=j-1-A-vii) dosage or duration of [drug](/usc/42/282.md?p=j-1-A-vii) [treatment](/usc/42/11851.md?p=11), and clinical [abuse](/usc/42/1397j.md?p=1)/misuse and, as necessary, introduce remedial strategies, in order to improve the quality of care and to conserve [program](/usc/42/274l–1.md?p=4) [funds](/usc/42/12854.md?p=3) or personal expenditures.
    - (D) **Educational program—** The [program](/usc/42/274l–1.md?p=4) shall, through its [State](/usc/42/1396b.md?p=w-7-D) [drug](/usc/42/282.md?p=j-1-A-vii) use review [board](/usc/42/10261.md?p=2) established under [paragraph (3)](#g-3), either directly or through contracts with [accredited](/usc/42/300w–9.md?p=c-2) health care educational institutions, [State](/usc/42/1396b.md?p=w-7-D) medical societies or [State](/usc/42/1396b.md?p=w-7-D) pharmacists associations/societies or other organizations as specified by the [State](/usc/42/1396b.md?p=w-7-D), and using data provided by the [State](/usc/42/1396b.md?p=w-7-D) [drug](/usc/42/282.md?p=j-1-A-vii) use review [board](/usc/42/10261.md?p=2) on common [drug](/usc/42/282.md?p=j-1-A-vii) therapy problems, provide for active and ongoing educational outreach [programs](/usc/42/274l–1.md?p=4) ([including](/usc/42/1301.md?p=b) the activities described in paragraph (3)(C)(iii) of this subsection) to educate [practitioners](/usc/42/1395a.md?p=b-6-C) on common [drug](/usc/42/282.md?p=j-1-A-vii) therapy problems with the aim of improving prescribing or dispensing [practices](/usc/42/17061.md?p=19).
  - (3) **State drug use review board—**
    - (A) **Establishment—** Each [State](/usc/42/1396b.md?p=w-7-D) shall provide for the establishment of a [drug](/usc/42/282.md?p=j-1-A-vii) use review [board](/usc/42/10261.md?p=2) (hereinafter referred to as the “DUR [Board](/usc/42/10261.md?p=2)”) either directly or through a contract with a private organization.
    - (B) **Membership—** The membership of the DUR [Board](/usc/42/10261.md?p=2) shall include health care professionals who have recognized knowledge and expertise in one or more of the following:
      - (i) The clinically appropriate prescribing of [covered outpatient drugs](#k-2).
      - (ii) The clinically appropriate dispensing and monitoring of [covered outpatient drugs](#k-2).
      - (iii) [Drug](/usc/42/282.md?p=j-1-A-vii) use review, evaluation, and [intervention](/usc/42/1397n–12.md?p=2).
      - (iv) Medical quality assurance.

      The membership of the DUR [Board](/usc/42/10261.md?p=2) shall be made up at least ⅓ but no more than 51 percent licensed and actively practicing [physicians](/usc/42/1396d.md?p=e) and at least ⅓ * * *[^8] licensed and actively practicing pharmacists.

    - (C) **Activities—** The activities of the DUR [Board](/usc/42/10261.md?p=2) shall include but not be limited to the following:
      - (i) Retrospective DUR as defined in section[^7] (2)(B).
      - (ii) Application of [standards](/usc/42/1320d.md?p=7) as defined in section[^7] (2)(C).
      - (iii) Ongoing [interventions](/usc/42/1397n–12.md?p=2) for [physicians](/usc/42/1396d.md?p=e) and pharmacists, targeted toward therapy problems or individuals identified in the course of retrospective [drug](/usc/42/282.md?p=j-1-A-vii) use reviews performed under this subsection. [Intervention](/usc/42/1397n–12.md?p=2) [programs](/usc/42/274l–1.md?p=4) shall include, in appropriate instances, at least:
        - (I) information dissemination sufficient to ensure the ready availability to [physicians](/usc/42/1396d.md?p=e) and pharmacists in the [State](/usc/42/1396b.md?p=w-7-D) of information concerning its duties, powers, and basis for its [standards](/usc/42/1320d.md?p=7);
        - (II) written, oral, or electronic reminders containing patient-specific or [drug](/usc/42/282.md?p=j-1-A-vii)-specific (or both) information and suggested changes in prescribing or dispensing [practices](/usc/42/17061.md?p=19), communicated in a manner designed to ensure the privacy of patient-related information;
        - (III) use of face-to-face discussions between health care professionals who are experts in rational [drug](/usc/42/282.md?p=j-1-A-vii) therapy and selected prescribers and pharmacists who have been targeted for educational [intervention](/usc/42/1397n–12.md?p=2), [including](/usc/42/1301.md?p=b) discussion of optimal prescribing, dispensing, or pharmacy care [practices](/usc/42/17061.md?p=19), and follow-up face-to-face discussions; and
        - (IV) intensified review or monitoring of selected prescribers or dispensers.

      The [Board](/usc/42/10261.md?p=2) shall re-evaluate [interventions](/usc/42/1397n–12.md?p=2) after an appropriate period of time to determine if the [intervention](/usc/42/1397n–12.md?p=2) improved the quality of [drug](/usc/42/282.md?p=j-1-A-vii) therapy, to evaluate the success of the [interventions](/usc/42/1397n–12.md?p=2) and make [modifications](/usc/42/7501.md?p=4) as necessary.

    - (D) **Annual report—** Each [State](/usc/42/1396b.md?p=w-7-D) shall require the DUR [Board](/usc/42/10261.md?p=2) to prepare a report on an annual basis. The [State](/usc/42/1396b.md?p=w-7-D) shall submit a report on an annual basis to the [Secretary](/usc/42/1301.md?p=a-6) which shall include a description of the activities of the [Board](/usc/42/10261.md?p=2), [including](/usc/42/1301.md?p=b) the nature and scope of the prospective and retrospective [drug](/usc/42/282.md?p=j-1-A-vii) use review [programs](/usc/42/274l–1.md?p=4), a summary of the [interventions](/usc/42/1397n–12.md?p=2) used, an assessment of the impact of these educational [interventions](/usc/42/1397n–12.md?p=2) on quality of care, and an estimate of the cost savings generated as a result of such [program](/usc/42/274l–1.md?p=4). The [Secretary](/usc/42/1301.md?p=a-6) shall utilize such report in evaluating the effectiveness of each [State](/usc/42/1396b.md?p=w-7-D)’s [drug](/usc/42/282.md?p=j-1-A-vii) use review [program](/usc/42/274l–1.md?p=4).
- (h) **Electronic claims management—**
  - (1) **In general—** In accordance with [chapter 35](/usc/44/ch35.md) of title 44 (relating to coordination of Federal information policy), the [Secretary](/usc/42/1301.md?p=a-6) shall encourage each [State agency](/usc/42/1320a–7a.md?p=i-1) to establish, as its principal means of processing [claims](/usc/42/1320a–7a.md?p=i-2) for [covered outpatient drugs](#k-2) under this subchapter, a point-of-sale electronic [claims](/usc/42/1320a–7a.md?p=i-2) management system, for the purpose of performing on-line, real time eligibility verifications, [claims](/usc/42/1320a–7a.md?p=i-2) data capture, adjudication of [claims](/usc/42/1320a–7a.md?p=i-2), and assisting pharmacists (and other authorized [persons](/usc/42/1301.md?p=a-3)) in applying for and receiving payment.
  - (2) **Encouragement—** In order to carry out [paragraph (1)](#h-1)—
    - (A) for calendar quarters during fiscal years 1991 and 1992, expenditures under the [State](/usc/42/1396b.md?p=w-7-D) plan attributable to development of a system described in [paragraph (1)](#h-1) shall receive Federal financial participation under [section 1396b(a)(3)(A)(i) of this title](/usc/42/1396b.md?p=a-3-A-i) (at a matching rate of 90 percent) if the [State](/usc/42/1396b.md?p=w-7-D) acquires, through applicable competitive procurement process in the [State](/usc/42/1396b.md?p=w-7-D), the most [cost-effective](/usc/42/1396e.md?p=e-2) telecommunications network and automatic data processing services and equipment; and
    - (B) the [Secretary](/usc/42/1301.md?p=a-6) may permit, in the procurement described in [subparagraph (A)](#h-2-A) in the application of [part 433 of title 42, Code of Federal Regulations](/cfr/42/part433.md), and parts 95, 205, and 307 of [title 45, Code of Federal Regulations](/cfr/45.md), the substitution of the [State](/usc/42/1396b.md?p=w-7-D)’s request for proposal in competitive procurement for advance planning and implementation documents otherwise required.
- (i) **Omitted—**
- (j) **Exemption of organized health care settings—**
  - (1) [Covered outpatient drugs](#k-2) are not subject to the requirements of this section if such [drugs](/usc/42/282.md?p=j-1-A-vii) are—
    - (A) dispensed by health maintenance organizations, [including](/usc/42/1301.md?p=b) [Medicaid managed care organizations](/usc/42/1396b.md?p=m-1-A) that contract under [section 1396b(m) of this title](/usc/42/1396b.md?p=m); and
    - (B) subject to discounts under [section 256b of this title](/usc/42/256b.md).
  - (2) The [State](/usc/42/1396b.md?p=w-7-D) plan shall provide that a [hospital](/usc/42/1395dd.md?p=e-5) (providing medical assistance under such plan) that dispenses [covered outpatient drugs](#k-2) using [drug](/usc/42/282.md?p=j-1-A-vii) formulary systems, and bills the plan no more than the [hospital](/usc/42/1395dd.md?p=e-5)’s purchasing costs for [covered outpatient drugs](#k-2) (as determined under the [State](/usc/42/1396b.md?p=w-7-D) plan) shall not be subject to the requirements of this section.
  - (3) Nothing in this subsection shall be construed as providing that amounts for [covered outpatient drugs](#k-2) paid by the institutions described in this subsection should not be taken into account for purposes of determining the [best price](#c-1-C-i) as described in [subsection (c)](#c).
- (k) **Definitions—** In this section—
  - (1) **Average manufacturer price—**
    - (A) **In general—** Subject to [subparagraph (B)](#k-1-B), the term “average manufacturer price” means, with respect to a [covered outpatient drug](#k-2) of a [manufacturer](#k-5) for a [rebate period](#k-8), the average price paid to the [manufacturer](#k-5) for the [drug](/usc/42/282.md?p=j-1-A-vii) in the [United States](/usc/42/1301.md?p=a-2) by—
      - (i) [wholesalers](#k-11) for [drugs](/usc/42/282.md?p=j-1-A-vii) distributed to [retail community pharmacies](#k-10); and
      - (ii) [retail community pharmacies](#k-10) that purchase [drugs](/usc/42/282.md?p=j-1-A-vii) directly from the [manufacturer](#k-5).
    - (B) **Exclusion of customary prompt pay discounts and other payments—**
      - (i) **In general—** The [average manufacturer price](#k-1-A) for a [covered outpatient drug](#k-2) shall exclude—
        - (I) customary prompt pay discounts extended to [wholesalers](#k-11);
        - (II) bona fide service fees paid by [manufacturers](#k-5) to [wholesalers](#k-11) or [retail community pharmacies](#k-10), [including](/usc/42/1301.md?p=b) (but not limited to) distribution service fees, [inventory](/usc/42/4370m.md?p=14) management fees, product stocking allowances, and fees associated with administrative services [agreements](/usc/42/1320b–8.md?p=a-3-A) and patient care [programs](/usc/42/274l–1.md?p=4) (such as medication compliance [programs](/usc/42/274l–1.md?p=4) and patient education [programs](/usc/42/274l–1.md?p=4));
        - (III) reimbursement by [manufacturers](#k-5) for recalled, damaged, expired, or otherwise unsalable returned goods, [including](/usc/42/1301.md?p=b) (but not limited to) reimbursement for the cost of the goods and any reimbursement of costs associated with return goods handling and processing, reverse logistics, and [drug](/usc/42/282.md?p=j-1-A-vii) destruction;
        - (IV) payments received from, and rebates or discounts provided to, pharmacy benefit managers, managed care organizations, health maintenance organizations, insurers, [hospitals](/usc/42/1395dd.md?p=e-5), clinics, mail order pharmacies, long term care providers, [manufacturers](#k-5), or any other entity that does not conduct business as a [wholesaler](#k-11) or a [retail community pharmacy](#k-10), unless the [drug](/usc/42/282.md?p=j-1-A-vii) is an inhalation, infusion, instilled, implanted, or injectable [drug](/usc/42/282.md?p=j-1-A-vii) that is not generally dispensed through a [retail community pharmacy](#k-10)[^3]
        - (V) discounts provided by [manufacturers](#k-5) under [section 1395w–114a of this title](/usc/42/1395w–114a.md) or under [section 1395w–114c of this title](/usc/42/1395w–114c.md);
        - (VI) any reduction in price paid during the [rebate period](#k-8) to the [manufacturer](#k-5) for a [drug](/usc/42/282.md?p=j-1-A-vii) by reason of application of part E of subchapter XI;
        - (VII) rebates paid by [manufacturers](#k-5) under [section 1395w–3a(i) of this title](/usc/42/1395w–3a.md?p=i); and
        - (VIII) rebates paid by [manufacturers](#k-5) under [section 1395w–114b of this title](/usc/42/1395w–114b.md).
      - (ii) **Inclusion of other discounts and payments—** Notwithstanding [clause (i)](#k-1-B-i), any other discounts, rebates, payments, or other financial transactions that are received by, paid by, or passed through to, [retail community pharmacies](#k-10) shall be included in the [average manufacturer price](#k-1-A) for a [covered outpatient drug](#k-2).
    - (C) **Exclusion of section 505(c) drugs—** In the case of a [manufacturer](#k-5) that approves, allows, or otherwise permits any [drug](/usc/42/282.md?p=j-1-A-vii) of the [manufacturer](#k-5) to be sold under the [manufacturer](#k-5)’s new [drug](/usc/42/282.md?p=j-1-A-vii) application approved under [section 505(c)](/usc/42/505.md?p=c) of the Federal Food, [Drug](/usc/42/282.md?p=j-1-A-vii), and Cosmetic Act [[21 U.S.C. 355(c)](/usc/21/355.md?p=c)], such term shall be exclusive of the average price paid for such [drug](/usc/42/282.md?p=j-1-A-vii) by [wholesalers](#k-11) for [drugs](/usc/42/282.md?p=j-1-A-vii) distributed to [retail community pharmacies](#k-10).
  - (2) **Covered outpatient drug—** Subject to the exceptions in [paragraph (3)](#k-3), the term “covered outpatient drug” means—
    - (A) of those [drugs](/usc/42/282.md?p=j-1-A-vii) which are treated as prescribed [drugs](/usc/42/282.md?p=j-1-A-vii) for purposes of [section 1396d(a)(12) of this title](/usc/42/1396d.md?p=a-12), a [drug](/usc/42/282.md?p=j-1-A-vii) which may be dispensed only upon prescription (except as provided in [paragraph (4)](#k-4)), and—
      - (i) which is approved for safety and effectiveness as a prescription [drug](/usc/42/282.md?p=j-1-A-vii) under [section 505](/usc/42/505.md) [[21 U.S.C. 355](/usc/21/355.md)] or 507[^4] of the Federal Food, [Drug](/usc/42/282.md?p=j-1-A-vii), and Cosmetic Act or which is approved under [section 505(j)](/usc/42/505.md) of such Act [[21 U.S.C. 355(j)](/usc/21/355.md?p=j)];
      - (ii)
        - (I) which was commercially used or sold in the [United States](/usc/42/1301.md?p=a-2) before October 10, 1962, or which is identical, similar, or related (within the meaning of section 310.6(b)(1) of [title 21 of the Code of Federal Regulations](/cfr/21.md)) to such a [drug](/usc/42/282.md?p=j-1-A-vii), and (II) which has not been the subject of a final determination by the [Secretary](/usc/42/1301.md?p=a-6) that it is a “new [drug](/usc/42/282.md?p=j-1-A-vii)” (within the meaning of [section 201(p)](/usc/42/201.md?p=p) of the Federal Food, [Drug](/usc/42/282.md?p=j-1-A-vii), and Cosmetic Act [[21 U.S.C. 321(p)](/usc/21/321.md?p=p)]) or an action brought by the [Secretary](/usc/42/1301.md?p=a-6) under section [301](/usc/42/301.md), [302(a)](/usc/42/302.md?p=a), or [304(a)](/usc/42/304.md) of such Act [[21 U.S.C. 331](/usc/21/331.md), 332(a), 334(a)] to enforce section [502(f)](/usc/42/502.md) or [505(a)](/usc/42/505.md?p=a) of such Act [[21 U.S.C. 352(f)](/usc/21/352.md?p=f), 355(a)]; or
      - (iii)
        - (I) which is described in section 107(c)(3) of the [Drug](/usc/42/282.md?p=j-1-A-vii) Amendments of 1962 and for which the [Secretary](/usc/42/1301.md?p=a-6) has determined there is a compelling justification for its medical need, or is identical, similar, or related (within the meaning of section 310.6(b)(1) of [title 21 of the Code of Federal Regulations](/cfr/21.md)) to such a [drug](/usc/42/282.md?p=j-1-A-vii), and (II) for which the [Secretary](/usc/42/1301.md?p=a-6) has not issued a notice of an opportunity for a hearing under [section 505(e)](/usc/42/505.md?p=e) of the Federal Food, [Drug](/usc/42/282.md?p=j-1-A-vii), and Cosmetic Act [[21 U.S.C. 355(e)](/usc/21/355.md?p=e)] on a proposed order of the [Secretary](/usc/42/1301.md?p=a-6) to withdraw approval of an application for such [drug](/usc/42/282.md?p=j-1-A-vii) under such section because the [Secretary](/usc/42/1301.md?p=a-6) has determined that the [drug](/usc/42/282.md?p=j-1-A-vii) is less than effective for some or all conditions of use prescribed, recommended, or suggested in its labeling; and
    - (B) a [biological product](/usc/42/287a.md?p=a-1), other than a vaccine which—
      - (i) may only be dispensed upon prescription,
      - (ii) is licensed under [section 262 of this title](/usc/42/262.md), and
      - (iii) is produced at an establishment licensed under such section to produce such product; and
    - (C) insulin certified under [section 506](/usc/42/506.md)[^4] of the Federal Food, [Drug](/usc/42/282.md?p=j-1-A-vii), and Cosmetic Act.
  - (3) **Limiting definition—** The term “[covered outpatient drug](#k-2)” does not include any [drug](/usc/42/282.md?p=j-1-A-vii), [biological product](/usc/42/287a.md?p=a-1), or insulin provided as part of, or as incident to and in the same setting as, any of the following (and for which payment may be made under this subchapter as part of payment for the following and not as direct reimbursement for the [drug](/usc/42/282.md?p=j-1-A-vii)):
    - (A) Inpatient [hospital](/usc/42/1395dd.md?p=e-5) services.
    - (B) Hospice services.
    - (C) Dental services, except that [drugs](/usc/42/282.md?p=j-1-A-vii) for which the [State](/usc/42/1396b.md?p=w-7-D) plan authorizes direct reimbursement to the dispensing dentist are [covered outpatient drugs](#k-2).
    - (D) [Physicians](/usc/42/1396d.md?p=e)’ services.
    - (E) Outpatient [hospital](/usc/42/1395dd.md?p=e-5) services.
    - (F) [Nursing facility services](/usc/42/1396d.md?p=f) and services provided by an [intermediate care facility for the mentally retarded](/usc/42/1396d.md?p=d).
    - (G) Other [laboratory](/usc/42/300jj.md?p=10) and x-ray services.
    - (H) Renal dialysis.

    Such term also does not include any such [drug](/usc/42/282.md?p=j-1-A-vii) or product for which a National Drug Code number is not required by the Food and [Drug](/usc/42/282.md?p=j-1-A-vii) [Administration](/usc/42/1301.md?p=a-10) or a [drug](/usc/42/282.md?p=j-1-A-vii) or biological[^9] used for a medical indication which is not a medically accepted indication. Any [drug](/usc/42/282.md?p=j-1-A-vii), [biological product](/usc/42/287a.md?p=a-1), or insulin excluded from the definition of such term as a result of this paragraph shall be treated as a [covered outpatient drug](#k-2) for purposes of determining the [best price](#c-1-C-i) (as defined in [subsection (c)(1)(C)](#c-1-C)) for such [drug](/usc/42/282.md?p=j-1-A-vii), [biological product](/usc/42/287a.md?p=a-1), or insulin.

  - (4) **Nonprescription drugs—** If a [State](/usc/42/1396b.md?p=w-7-D) plan for medical assistance under this subchapter [includes](/usc/42/1301.md?p=b) coverage of prescribed [drugs](/usc/42/282.md?p=j-1-A-vii) as described in [section 1396d(a)(12) of this title](/usc/42/1396d.md?p=a-12) and permits coverage of [drugs](/usc/42/282.md?p=j-1-A-vii) which may be sold without a prescription (commonly referred to as “over-the-counter” [drugs](/usc/42/282.md?p=j-1-A-vii)), if they are prescribed by a [physician](/usc/42/1301.md?p=a-7) (or other [person](/usc/42/1301.md?p=a-3) authorized to prescribe under [State](/usc/42/1396b.md?p=w-7-D) law), such a [drug](/usc/42/282.md?p=j-1-A-vii) shall be regarded as a [covered outpatient drug](#k-2).
  - (5) **Manufacturer—** The term “manufacturer” means any entity which is engaged in—
    - (A) the production, preparation, propagation, compounding, conversion, or processing of prescription [drug](/usc/42/282.md?p=j-1-A-vii) products, either directly or indirectly by extraction from substances of natural origin, or independently by means of chemical synthesis, or by a combination of extraction and chemical synthesis, or
    - (B) in the packaging, repackaging, labeling, relabeling, or distribution of prescription [drug](/usc/42/282.md?p=j-1-A-vii) products.

    Such term does not include a wholesale distributor of [drugs](/usc/42/282.md?p=j-1-A-vii) or a retail pharmacy licensed under [State](/usc/42/1396b.md?p=w-7-D) law.

  - (6) **Medically accepted indication—** The term “medically accepted indication” means any use for a [covered outpatient drug](#k-2) which is approved under the Federal Food, [Drug](/usc/42/282.md?p=j-1-A-vii), and Cosmetic Act [[21 U.S.C. 301](/usc/21/301.md) et seq.] or the use of which is supported by one or more citations included or approved for inclusion in any of the compendia described in [subsection (g)(1)(B)(i)](#g-1-B-i).
  - (7) **Multiple source drug; innovator multiple source drug; noninnovator multiple source drug; single source drug—**
    - (A) **Defined—**
      - (i) **Multiple source drug—** The term “multiple source drug” means, with respect to a [rebate period](#k-8), a [covered outpatient drug](#k-2), [including](/usc/42/1301.md?p=b) a [drug](/usc/42/282.md?p=j-1-A-vii) product approved for marketing as a non-prescription [drug](/usc/42/282.md?p=j-1-A-vii) that is regarded as a [covered outpatient drug](#k-2) under [paragraph (4)](#k-4), for which there[^2] at least 1 other [drug](/usc/42/282.md?p=j-1-A-vii) product which—
        - (I) is rated as therapeutically equivalent (under the Food and [Drug](/usc/42/282.md?p=j-1-A-vii) [Administration](/usc/42/1301.md?p=a-10)’s most recent publication of “Approved [Drug](/usc/42/282.md?p=j-1-A-vii) Products with Therapeutic Equivalence Evaluations”),
        - (II) except as provided in [subparagraph (B)](#k-7-B), is pharmaceutically equivalent and bioequivalent, as defined in [subparagraph (C)](#k-7-C) and as determined by the Food and [Drug](/usc/42/282.md?p=j-1-A-vii) [Administration](/usc/42/1301.md?p=a-10), and
        - (III) is sold or marketed in the [United States](/usc/42/1301.md?p=a-2) during the period.
      - (ii) **Innovator multiple source drug—** The term “innovator multiple source drug” means a [multiple source drug](#k-7-A-i) that is marketed under a new [drug](/usc/42/282.md?p=j-1-A-vii) application approved by the Food and [Drug](/usc/42/282.md?p=j-1-A-vii) [Administration](/usc/42/1301.md?p=a-10), unless the [Secretary](/usc/42/1301.md?p=a-6) determines that a narrow exception applies (as described in [section 447.502 of title 42, Code of Federal Regulations](/cfr/42/447.502.md) (or any successor regulation)).
      - (iii) **Noninnovator multiple source drug—** The term “noninnovator multiple source drug” means a [multiple source drug](#k-7-A-i) that is not an [innovator multiple source drug](#k-7-A-ii).
      - (iv) **Single source drug—** The term “single source drug” means a [covered outpatient drug](#k-2), [including](/usc/42/1301.md?p=b) a [drug](/usc/42/282.md?p=j-1-A-vii) product approved for marketing as a non-prescription [drug](/usc/42/282.md?p=j-1-A-vii) that is regarded as a [covered outpatient drug](#k-2) under [paragraph (4)](#k-4), which is produced or distributed under a new [drug](/usc/42/282.md?p=j-1-A-vii) application approved by the Food and [Drug](/usc/42/282.md?p=j-1-A-vii) [Administration](/usc/42/1301.md?p=a-10), [including](/usc/42/1301.md?p=b) a [drug](/usc/42/282.md?p=j-1-A-vii) product marketed by any cross-licensed producers or distributors operating under the new [drug](/usc/42/282.md?p=j-1-A-vii) application unless the [Secretary](/usc/42/1301.md?p=a-6) determines that a narrow exception applies (as described in [section 447.502 of title 42, Code of Federal Regulations](/cfr/42/447.502.md) (or any successor regulation)). Such term also [includes](/usc/42/1301.md?p=b) a [covered outpatient drug](#k-2) that is a [biological product](/usc/42/287a.md?p=a-1) licensed, produced, or distributed under a biologics license application approved by the Food and [Drug](/usc/42/282.md?p=j-1-A-vii) [Administration](/usc/42/1301.md?p=a-10).
    - (B) **Exception—** [Subparagraph (A)(i)(II)](#k-7-A-i-II) shall not apply if the Food and [Drug](/usc/42/282.md?p=j-1-A-vii) [Administration](/usc/42/1301.md?p=a-10) changes by regulation the requirement that, for purposes of the publication described in [subparagraph (A)(i)(I)](#k-7-A-i-I), in order for [drug](/usc/42/282.md?p=j-1-A-vii) products to be rated as therapeutically equivalent, they must be pharmaceutically equivalent and bioequivalent, as defined in [subparagraph (C)](#k-7-C).
    - (C) **Definitions—** For purposes of this paragraph—
      - (i) [drug](/usc/42/282.md?p=j-1-A-vii) products are pharmaceutically equivalent if the products contain identical amounts of the same active [drug](/usc/42/282.md?p=j-1-A-vii) ingredient in the same dosage form and meet compendial or other applicable [standards](/usc/42/1320d.md?p=7) of strength, quality, purity, and identity; and
      - (ii) [drugs](/usc/42/282.md?p=j-1-A-vii) are bioequivalent if they do not present a known or potential bioequivalence problem, or, if they do present such a problem, they are shown to meet an appropriate [standard](/usc/42/1320d.md?p=7) of bioequivalence.
  - (8) **Rebate period—** The term “rebate period” means, with respect to an [agreement](/usc/42/1320b–8.md?p=a-3-A) under [subsection (a)](#a), a calendar quarter or other period specified by the [Secretary](/usc/42/1301.md?p=a-6) with respect to the payment of rebates under such [agreement](/usc/42/1320b–8.md?p=a-3-A).
  - (9) **State agency—** The term “[State agency](/usc/42/1320a–7a.md?p=i-1)” means the [agency](/usc/42/1397n–12.md?p=1) designated under [section 1396a(a)(5) of this title](/usc/42/1396a.md?p=a-5) to administer or supervise the [administration](/usc/42/1301.md?p=a-10) of the [State](/usc/42/1396b.md?p=w-7-D) plan for medical assistance.
  - (10) **Retail community pharmacy—** The term “retail community pharmacy” means an independent pharmacy, a chain pharmacy, a supermarket pharmacy, or a mass merchandiser pharmacy that is licensed as a pharmacy by the [State](/usc/42/1396b.md?p=w-7-D) and that dispenses medications to the general public at retail prices. Such term does not include a pharmacy that dispenses prescription medications to patients primarily through the mail, [nursing home](/usc/42/1396g.md?p=e-1) pharmacies, [long-term care facility](/usc/42/1397j.md?p=15) pharmacies, [hospital](/usc/42/1395dd.md?p=e-5) pharmacies, clinics, charitable or not-for-profit pharmacies, government pharmacies, or pharmacy benefit managers.
  - (11) **Wholesaler—** The term “wholesaler” means a [drug](/usc/42/282.md?p=j-1-A-vii) wholesaler that is engaged in wholesale distribution of prescription [drugs](/usc/42/282.md?p=j-1-A-vii) to [retail community pharmacies](#k-10), [including](/usc/42/1301.md?p=b) (but not limited to) repackers, distributors, own-label distributors, private-label distributors, jobbers, brokers, warehouses ([including](/usc/42/1301.md?p=b) distributor’s warehouses, chain [drug](/usc/42/282.md?p=j-1-A-vii) warehouses, and wholesale [drug](/usc/42/282.md?p=j-1-A-vii) warehouses) independent wholesale [drug](/usc/42/282.md?p=j-1-A-vii) traders, and [retail community pharmacies](#k-10) that conduct wholesale distributions.

# §1396s. Program for distribution of pediatric vaccines

- (a) **Establishment of program—**
  - (1) **In general—** In order to meet the requirement of [section 1396a(a)(62) of this title](/usc/42/1396a.md?p=a-62), each [State](/usc/42/1396b.md?p=w-7-D) shall establish a [pediatric vaccine](#h-6) distribution [program](/usc/42/274l–1.md?p=4) (which may be administered by the State department of health), consistent with the requirements of this section, under which—
    - (A) each [vaccine-eligible child](#b-1) (as defined in [subsection (b)](#b)), in receiving an [immunization](#h-2) with a [qualified pediatric vaccine](#h-8) (as defined in [subsection (h)(8)](#h-8)) from a [program-registered provider](#c-1) (as defined in [subsection (c)](#c)) on or after October 1, 1994, is entitled to receive the [immunization](#h-2) without charge for the cost of such vaccine; and
    - (B)
      - (i) each [program-registered provider](#c-1) who administers such a [pediatric vaccine](#h-6) to a [vaccine-eligible child](#b-1) on or after such date is entitled to receive such vaccine under the [program](/usc/42/274l–1.md?p=4) without charge either for the vaccine or its delivery to the provider, and (ii) no vaccine is distributed under the [program](/usc/42/274l–1.md?p=4) to a provider unless the provider is a [program-registered provider](#c-1).
  - (2) **Delivery of sufficient quantities of pediatric vaccines to immunize federally vaccine-eligible children—**
    - (A) **In general—** The [Secretary](/usc/42/1301.md?p=a-6) shall provide under [subsection (d)](#d) for the purchase and delivery on behalf of each [State](/usc/42/1396b.md?p=w-7-D) meeting the requirement of [section 1396a(a)(62) of this title](/usc/42/1396a.md?p=a-62) (or, with respect to vaccines administered by an [Indian tribe](#h-3) or [tribal organization](#h-3) to [Indian](#h-3) [children](/usc/42/256e.md?p=g-2), directly to the tribe or organization), without charge to the [State](/usc/42/1396b.md?p=w-7-D), of such quantities of [qualified pediatric vaccines](#h-8) as may be necessary for the [administration](/usc/42/1301.md?p=a-10) of such vaccines to all federally vaccine-eligible children in the [State](/usc/42/1396b.md?p=w-7-D) on or after October 1, 1994. This paragraph constitutes budget authority in advance of appropriations Acts, and represents the obligation of the Federal Government to provide for the purchase and delivery to [States](/usc/42/1396b.md?p=w-7-D) of the vaccines (or payment under [subparagraph (C)](#a-2-C)) in accordance with this paragraph.
    - (B) **Special rules where vaccine is unavailable—** To the extent that a sufficient quantity of a vaccine is not available for purchase or delivery under [subsection (d)](#d), the [Secretary](/usc/42/1301.md?p=a-6) shall provide for the purchase and delivery of the available vaccine in accordance with priorities established by the [Secretary](/usc/42/1301.md?p=a-6), with priority given to federally vaccine-eligible children unless the [Secretary](/usc/42/1301.md?p=a-6) finds there are other public health considerations.
    - (C) **Special rules where State is a manufacturer—**
      - (i) **Payments in lieu of vaccines—** In the case of a [State](/usc/42/1396b.md?p=w-7-D) that [manufactures](#h-4) a [pediatric vaccine](#h-6) the [Secretary](/usc/42/1301.md?p=a-6), instead of providing the vaccine on behalf of a [State](/usc/42/1396b.md?p=w-7-D) under [subparagraph (A)](#a-2-A), shall provide to the [State](/usc/42/1396b.md?p=w-7-D) an amount equal to the value of the quantity of such vaccine that otherwise would have been delivered on behalf of the [State](/usc/42/1396b.md?p=w-7-D) under such subparagraph, but only if the [State](/usc/42/1396b.md?p=w-7-D) agrees that such payments will only be used for purposes relating to pediatric [immunizations](#h-2).
      - (ii) **Determination of value—** In determining the amount to pay a [State](/usc/42/1396b.md?p=w-7-D) under [clause (i)](#a-2-C-i) with respect to a [pediatric vaccine](#h-6), the value of the quantity of vaccine shall be determined on the basis of the price in effect for the [qualified pediatric vaccine](#h-8) under contracts under [subsection (d)](#d). If more than 1 such contract is in effect, the [Secretary](/usc/42/1301.md?p=a-6) shall determine such value on the basis of the average of the prices under the contracts, after weighting each such price in relation to the quantity of vaccine under the contract involved.
- (b) **Vaccine-eligible children—** For purposes of this section:
  - (1) **In general—** The term “[vaccine-eligible child](#h-9)” means a [child](#h-1) who is a [federally vaccine-eligible child](#h-9) (as defined in [paragraph (2)](#b-2)) or a [State vaccine-eligible child](#h-9) (as defined in [paragraph (3)](#b-3)).
  - (2) **Federally vaccine-eligible child—**
    - (A) **In general—** The term “[federally vaccine-eligible child](#h-9)” means any of the following [children](/usc/42/256e.md?p=g-2):
      - (i) A [medicaid-eligible](#b-2-B-i) [child](#h-1).
      - (ii) A [child](#h-1) who is not [insured](#b-2-B-ii).
      - (iii) A [child](#h-1) who (I) is administered a [qualified pediatric vaccine](#h-8) by a [federally-qualified health center](/usc/42/1396d.md?p=l-2-B) (as defined in [section 1396d(l)(2)(B)](/usc/42/1396d.md?p=l-2-B) of this title) or a [rural health clinic](/usc/42/254c.md?p=b-2) (as defined in [section 1396d(l)(1)](/usc/42/1396d.md?p=l-1) of this title), and (II) is not [insured](#b-2-B-ii) with respect to the vaccine.
      - (iv) A [child](#h-1) who is an [Indian](#h-3) (as defined in [subsection (h)(3)](#h-3)).
    - (B) **Definitions—** In [subparagraph (A)](#b-2-A):
      - (i) The term “medicaid-eligible” means, with respect to a [child](#h-1), a [child](#h-1) who is entitled to medical assistance under a [state](/usc/42/1396b.md?p=w-7-D)[^1] plan approved under this subchapter.
      - (ii) The term “insured” means, with respect to a [child](#h-1)—
        - (I) for purposes of [subparagraph (A)(ii)](#b-2-A-ii), that the [child](#h-1) is enrolled under, and entitled to benefits under, a health insurance policy or plan, [including](/usc/42/1301.md?p=b) a [group health plan](/usc/42/1320d–9.md?p=b-2), a prepaid [health plan](/usc/42/300jj.md?p=6), or an [employee](/usc/42/1320a–7h.md?p=e-7) welfare benefit plan under the [Employee](/usc/42/1320a–7h.md?p=e-7) Retirement [Income](/usc/42/292s.md?p=c-4) Security Act of 1974 [[29 U.S.C. 1001](/usc/29/1001.md) et seq.]; and
        - (II) for purposes of subparagraph (A)(iii)(II) with respect to a [pediatric vaccine](#h-6), that the [child](#h-1) is entitled to benefits under such a health insurance policy or plan, but such benefits are not available with respect to the cost of the [pediatric vaccine](#h-6).
  - (3) **State vaccine-eligible child—** The term “[State vaccine-eligible child](#h-9)” means, with respect to a [State](/usc/42/1396b.md?p=w-7-D) and a [qualified pediatric vaccine](#h-8), a [child](#h-1) who is within a class of [children](/usc/42/256e.md?p=g-2) for which the [State](/usc/42/1396b.md?p=w-7-D) is purchasing the vaccine pursuant to [subsection (d)(4)(B)](#d-4-B).
- (c) **Program-registered providers—**
  - (1) **Defined—** In this section, except as otherwise provided, the term “[program-registered provider](#h-7)” means, with respect to a [State](/usc/42/1396b.md?p=w-7-D), any [health care provider](/usc/42/300jj.md?p=3) that—
    - (A) is licensed or otherwise authorized for [administration](/usc/42/1301.md?p=a-10) of [pediatric vaccines](#h-6) under the law of the [State](/usc/42/1396b.md?p=w-7-D) in which the [administration](/usc/42/1301.md?p=a-10) occurs (subject to [section 254f(e) of this title](/usc/42/254f.md?p=e)), without regard to whether or not the provider participates in the plan under this subchapter;
    - (B) submits to the [State](/usc/42/1396b.md?p=w-7-D) an executed provider [agreement](/usc/42/1320b–8.md?p=a-3-A) described in [paragraph (2)](#c-2); and
    - (C) has not been found, by the [Secretary](/usc/42/1301.md?p=a-6) or the [State](/usc/42/1396b.md?p=w-7-D), to have violated such [agreement](/usc/42/1320b–8.md?p=a-3-A) or other applicable requirements established by the [Secretary](/usc/42/1301.md?p=a-6) or the [State](/usc/42/1396b.md?p=w-7-D) consistent with this section.
  - (2) **Provider agreement—** A provider [agreement](/usc/42/1320b–8.md?p=a-3-A) for a provider under this paragraph is an [agreement](/usc/42/1320b–8.md?p=a-3-A) (in such form and manner as the [Secretary](/usc/42/1301.md?p=a-6) may require) that the provider agrees as follows:
    - (A)
      - (i) Before administering a [qualified pediatric vaccine](#h-8) to a [child](#h-1), the provider will ask a [parent](#h-5) of the [child](#h-1) such questions as are necessary to determine whether the [child](#h-1) is a [vaccine-eligible child](#b-1), but the provider need not independently verify the answers to such questions.
      - (ii) The provider will, for a period of time specified by the [Secretary](/usc/42/1301.md?p=a-6), maintain records of responses made to the questions.
      - (iii) The provider will, upon request, make such records available to the [State](/usc/42/1396b.md?p=w-7-D) and to the [Secretary](/usc/42/1301.md?p=a-6), subject to [section 1396a(a)(7) of this title](/usc/42/1396a.md?p=a-7).
    - (B)
      - (i) Subject to [clause (ii)](#c-2-B-ii), the provider will comply with the schedule, regarding the appropriate periodicity, dosage, and contraindications applicable to [pediatric vaccines](#h-6), that is established and periodically reviewed and, as appropriate, revised by the [advisory committee](/usc/42/7703.md?p=9) referred to in [subsection (e)](#e), except in such cases as, in the provider’s medical judgment subject to accepted medical practice, such compliance is medically inappropriate.
      - (ii) The provider will provide [pediatric vaccines](#h-6) in compliance with applicable [State](/usc/42/1396b.md?p=w-7-D) law, [including](/usc/42/1301.md?p=b) any such law relating to any religious or other exemption.
    - (C)
      - (i) In administering a [qualified pediatric vaccine](#h-8) to a [vaccine-eligible child](#b-1), the provider will not impose a charge for the cost of the vaccine. A [program-registered provider](#h-7) is not required under this section to administer such a vaccine to each [child](#h-1) for whom an [immunization](#h-2) with the vaccine is sought from the provider.
      - (ii) The provider may impose a fee for the [administration](/usc/42/1301.md?p=a-10) of a [qualified pediatric vaccine](#h-8) so long as the fee in the case of a [federally vaccine-eligible child](#b-2-A) does not exceed the costs of such [administration](/usc/42/1301.md?p=a-10) (as determined by the [Secretary](/usc/42/1301.md?p=a-6) based on actual regional costs for such [administration](/usc/42/1301.md?p=a-10)).
      - (iii) The provider will not deny [administration](/usc/42/1301.md?p=a-10) of a [qualified pediatric vaccine](#h-8) to a [vaccine-eligible child](#b-1) due to the inability of the [child](#h-1)’s [parent](#h-5) to pay an [administration](/usc/42/1301.md?p=a-10) fee.
  - (3) **Encouraging involvement of providers—** Each [program](/usc/42/274l–1.md?p=4) under this section shall provide, in accordance with criteria established by the [Secretary](/usc/42/1301.md?p=a-6)—
    - (A) for encouraging the following to become [program-registered providers](#h-7): private [health care providers](/usc/42/300jj.md?p=3), the [Indian](#h-3) Health Service, [health care providers](/usc/42/300jj.md?p=3) that receive [funds](/usc/42/12854.md?p=3) under title V of the [Indian](#h-3) Health Care Improvement Act [[25 U.S.C. 1651](/usc/25/1651.md) et seq.], and health [programs](/usc/42/274l–1.md?p=4) or [facilities](/usc/42/11049.md?p=4) operated by [Indian tribes](#h-3) or [tribal organizations](#h-3); and
    - (B) for identifying, with respect to any population of vaccine-eligible children a substantial portion of whose [parents](#h-5) have a limited ability to speak the English language, those [program-registered providers](#h-7) who are able to communicate with the population involved in the language and cultural context that is most appropriate.
  - (4) **State requirements—** Except as the [Secretary](/usc/42/1301.md?p=a-6) may permit in order to prevent fraud and [abuse](/usc/42/1397j.md?p=1) and for related purposes, a [State](/usc/42/1396b.md?p=w-7-D) may not impose additional qualifications or conditions, in addition to the requirements of [paragraph (1)](#c-1), in order that a provider qualify as a [program-registered provider](#h-7) under this section. This subsection does not limit the exercise of [State authority](/usc/42/6903.md?p=32) under [section 1396n(b) of this title](/usc/42/1396n.md?p=b).
- (d) **Negotiation of contracts with manufacturers—**
  - (1) **In general—** For the purpose of meeting obligations under this section, the [Secretary](/usc/42/1301.md?p=a-6) shall negotiate and enter into contracts with [manufacturers](#h-4) of [pediatric vaccines](#h-6) consistent with the requirements of this subsection and, to the maximum extent practicable, consolidate such contracting with any other contracting activities conducted by the [Secretary](/usc/42/1301.md?p=a-6) to purchase vaccines. The [Secretary](/usc/42/1301.md?p=a-6) may enter into such contracts under which the Federal Government is obligated to make outlays, the budget authority for which is not provided for in advance in appropriations Acts, for the purchase and delivery of [pediatric vaccines](#h-6) under [subsection (a)(2)(A)](#a-2-A).
  - (2) **Authority to decline contracts—** The [Secretary](/usc/42/1301.md?p=a-6) may decline to enter into such contracts and may modify or extend such contracts.
  - (3) **Contract price—**
    - (A) **In general—** The [Secretary](/usc/42/1301.md?p=a-6), in negotiating the prices at which [pediatric vaccines](#h-6) will be purchased and delivered from a [manufacturer](#h-4) under this subsection, shall take into account quantities of vaccines to be purchased by [States](/usc/42/1396b.md?p=w-7-D) under the option under [paragraph (4)(B)](#d-4-B).
    - (B) **Negotiation of discounted price for current vaccines—** With respect to contracts entered into under this subsection for a [pediatric vaccine](#h-6) for which the Centers for Disease Control and Prevention has a contract in effect under [section 247b(j)(1) of this title](/usc/42/247b.md?p=j-1) as of May 1, 1993, no price for the purchase of such vaccine for vaccine-eligible children shall be agreed to by the [Secretary](/usc/42/1301.md?p=a-6) under this subsection if the price per dose of such vaccine ([including](/usc/42/1301.md?p=b) delivery costs and any applicable excise tax established under section 4131 of the Internal Revenue Code of 1986) exceeds the price per dose for the vaccine in effect under such a contract as of such date increased by the percentage increase in the consumer price index for all urban consumers (all items; [United States](/usc/42/1301.md?p=a-2) [city](/usc/42/12902.md?p=11) average) from May 1993 to the month before the month in which such contract is entered into.
    - (C) **Negotiation of discounted price for new vaccines—** With respect to contracts entered into for a [pediatric vaccine](#h-6) not described in [subparagraph (B)](#d-3-B), the price for the purchase of such vaccine shall be a [discounted price](/usc/42/1395w–114c.md?p=g-4-B-i) negotiated by the [Secretary](/usc/42/1301.md?p=a-6) that may be established without regard to such subparagraph.
  - (4) **Quantities and terms of delivery—** Under such contracts—
    - (A) the [Secretary](/usc/42/1301.md?p=a-6) shall provide, consistent with [paragraph (6)](#d-6), for the purchase and delivery on behalf of [States](/usc/42/1396b.md?p=w-7-D) (and tribes and [tribal organizations](#h-3)) of quantities of [pediatric vaccines](#h-6) for federally vaccine-eligible children; and
    - (B) each [State](/usc/42/1396b.md?p=w-7-D), at the option of the [State](/usc/42/1396b.md?p=w-7-D), shall be permitted to obtain additional quantities of [pediatric vaccines](#h-6) (subject to amounts specified to the [Secretary](/usc/42/1301.md?p=a-6) by the [State](/usc/42/1396b.md?p=w-7-D) in advance of negotiations) through purchasing the vaccines from the [manufacturers](#h-4) at the applicable price negotiated by the [Secretary](/usc/42/1301.md?p=a-6) consistent with [paragraph (3)](#d-3), if (i) the [State](/usc/42/1396b.md?p=w-7-D) agrees that the vaccines will be used to provide [immunizations](#h-2) only for [children](/usc/42/256e.md?p=g-2) who are not federally vaccine-eligible children and (ii) the [State](/usc/42/1396b.md?p=w-7-D) provides to the [Secretary](/usc/42/1301.md?p=a-6) such information (at a time and manner specified by the [Secretary](/usc/42/1301.md?p=a-6), [including](/usc/42/1301.md?p=b) in advance of negotiations under [paragraph (1)](#d-1)) as the [Secretary](/usc/42/1301.md?p=a-6) determines to be necessary, to provide for quantities of [pediatric vaccines](#h-6) for the [State](/usc/42/1396b.md?p=w-7-D) to purchase pursuant to this subsection and to determine annually the percentage of the vaccine market that is purchased pursuant to this section and this subparagraph.

    The [Secretary](/usc/42/1301.md?p=a-6) shall enter into the initial negotiations under the preceding sentence not later than 180 days after August 10, 1993.

  - (5) **Charges for shipping and handling—** The [Secretary](/usc/42/1301.md?p=a-6) may enter into a contract referred to in [paragraph (1)](#d-1) only if the [manufacturer](#h-4) involved agrees to submit to the [Secretary](/usc/42/1301.md?p=a-6) such reports as the [Secretary](/usc/42/1301.md?p=a-6) determines to be appropriate to assure compliance with the contract and if, with respect to a [State](/usc/42/1396b.md?p=w-7-D) [program](/usc/42/274l–1.md?p=4) under this section that does not provide for the direct delivery of [qualified pediatric vaccines](#h-8), the [manufacturer](#h-4) involved agrees that the [manufacturer](#h-4) will provide for the delivery of the vaccines on behalf of the [State](/usc/42/1396b.md?p=w-7-D) in accordance with such [program](/usc/42/274l–1.md?p=4) and will not impose any charges for the costs of such delivery (except to the extent such costs are provided for in the price established under [paragraph (3)](#d-3)).
  - (6) **Assuring adequate supply of vaccines—** The [Secretary](/usc/42/1301.md?p=a-6), in negotiations under [paragraph (1)](#d-1), shall negotiate for quantities of [pediatric vaccines](#h-6) such that an adequate supply of such vaccines will be maintained to meet unanticipated needs for the vaccines. For purposes of the preceding sentence, the [Secretary](/usc/42/1301.md?p=a-6) shall negotiate for a 6-month supply of vaccines in addition to the quantity that the [Secretary](/usc/42/1301.md?p=a-6) otherwise would provide for in such negotiations. In carrying out this paragraph, the [Secretary](/usc/42/1301.md?p=a-6) shall consider the potential for outbreaks of the diseases with respect to which the vaccines have been developed.
  - (7) **Multiple suppliers—** In the case of the [pediatric vaccine](#h-6) involved, the [Secretary](/usc/42/1301.md?p=a-6) shall, as appropriate, enter into a contract referred to in [paragraph (1)](#d-1) with each [manufacturer](#h-4) of the vaccine that meets the terms and conditions of the [Secretary](/usc/42/1301.md?p=a-6) for an award of such a contract ([including](/usc/42/1301.md?p=b) terms and conditions regarding safety and quality). With respect to multiple contracts entered into pursuant to this paragraph, the [Secretary](/usc/42/1301.md?p=a-6) may have in effect different prices under each of such contracts and, with respect to a purchase by [States](/usc/42/1396b.md?p=w-7-D) pursuant to [paragraph (4)(B)](#d-4-B), the [Secretary](/usc/42/1301.md?p=a-6) shall determine which of such contracts will be applicable to the purchase.
- (e) **Use of pediatric vaccines list—** The [Secretary](/usc/42/1301.md?p=a-6) shall use, for the purpose of the purchase, delivery, and [administration](/usc/42/1301.md?p=a-10) of [pediatric vaccines](#h-6) under this section, the list established (and periodically reviewed and as appropriate revised) by the [Advisory Committee](/usc/42/7703.md?p=9) on [Immunization](#h-2) [Practices](/usc/42/17061.md?p=19) (an [advisory committee](/usc/42/7703.md?p=9) established by the [Secretary](/usc/42/1301.md?p=a-6), acting through the [Director](/usc/42/5061.md?p=1) of the Centers for Disease Control and Prevention).
- (f) **Requirement of State maintenance of immunization laws—** In the case of a [State](/usc/42/1396b.md?p=w-7-D) that had in effect as of May 1, 1993, a law that requires some or all health insurance policies or plans to provide some coverage with respect to a [pediatric vaccine](#h-6), a [State](/usc/42/1396b.md?p=w-7-D) [program](/usc/42/274l–1.md?p=4) under this section does not comply with the requirements of this section unless the [State](/usc/42/1396b.md?p=w-7-D) certifies to the [Secretary](/usc/42/1301.md?p=a-6) that the [State](/usc/42/1396b.md?p=w-7-D) has not [modified](/usc/42/7501.md?p=4) or repealed such law in a manner that reduces the amount of coverage so required.
- (g) **Termination—** This section, and the requirement of [section 1396a(a)(62) of this title](/usc/42/1396a.md?p=a-62), shall cease to be in effect beginning on such date as may be prescribed in Federal law providing for [immunization](#h-2) services for all [children](/usc/42/256e.md?p=g-2) as part of a broad-based reform of the national health care system.
- (h) **Definitions—** For purposes of this section:
  - (1) The term “child” means an individual 18 years of age or younger.
  - (2) The term “immunization” means an immunization against a vaccine-preventable disease.
  - (3) The terms “Indian”, “Indian tribe” and “tribal organization” have the meanings given such terms in section 4 of the Indian Health Care Improvement Act [[25 U.S.C. 1603](/usc/25/1603.md)].
  - (4) The term “manufacturer” means any [corporation](/usc/42/1301.md?p=a-4), organization, or institution, whether public or private ([including](/usc/42/1301.md?p=b) Federal, [State](/usc/42/1396b.md?p=w-7-D), and local departments, [agencies](/usc/42/1397n–12.md?p=1), and instrumentalities), which manufactures, [imports](/usc/42/6311.md?p=7), processes, or distributes under its label any [pediatric vaccine](#h-6). The term “manufacture” means to manufacture, [import](/usc/42/6311.md?p=7), process, or distribute a vaccine.
  - (5) The term “parent” [includes](/usc/42/1301.md?p=b), with respect to a [child](#h-1), an individual who qualifies as a legal guardian under [State](/usc/42/1396b.md?p=w-7-D) law.
  - (6) The term “pediatric vaccine” means a vaccine included on the list under [subsection (e)](#e).
  - (7) The term “[program-registered provider](#c-1)” has the meaning given such term in [subsection (c)](#c).
  - (8) The term “qualified pediatric vaccine” means a [pediatric vaccine](#h-6) with respect to which a contract is in effect under [subsection (d)](#d).
  - (9) The terms “[vaccine-eligible child](#b-1)”, “[federally vaccine-eligible child](#b-2-A)”, and “[State vaccine-eligible child](#b-3)” have the meaning given such terms in [subsection (b)](#b).

# §1396t. Home and community care for functionally disabled elderly individuals

- (a) **“Home and community care” defined—** In this subchapter, the term “home and community care” means one or more of the following services furnished to an individual who has been determined, after an assessment under [subsection (c)](#c), to be a [functionally disabled elderly individual](#b-1), furnished in accordance with an [individual community care plan](#d-1) (established and periodically reviewed and revised by a [qualified community care case manager](#d-2) under [subsection (d)](#d)):
  - (1) Homemaker/home health aide services.
  - (2) Chore services.
  - (3) [Personal care services](/usc/42/1396b.md?p=l-5-C).
  - (4) Nursing care services provided by, or under the supervision of, a registered nurse.
  - (5) Respite care.
  - (6) [Training](/usc/42/285e–2.md?p=b-2) for [family members](/usc/42/1320d–9.md?p=b-1) in managing the individual.
  - (7) Adult day care.
  - (8) In the case of an individual with chronic mental illness, day [treatment](/usc/42/11851.md?p=11) or other partial [hospitalization](/usc/42/1301.md?p=a-7), psychosocial rehabilitation services, and clinic services (whether or not furnished in a [facility](/usc/42/11049.md?p=4)).
  - (9) Such other home and community-based services (other than room and [board](/usc/42/10261.md?p=2)) as the [Secretary](/usc/42/1301.md?p=a-6) may approve.
- (b) **“Functionally disabled elderly individual” defined—**
  - (1) **In general—** In this subchapter, the term “functionally disabled elderly individual” means an individual who—
    - (A) is 65 years of age or older,
    - (B) is determined to be a functionally disabled individual under [subsection (c)](#c), and
    - (C) subject to [section 1396a(f) of this title](/usc/42/1396a.md?p=f) (as applied consistent with [section 1396a(r)(2) of this title](/usc/42/1396a.md?p=r-2)), is receiving [supplemental security income benefits](/usc/42/1382i.md?p=b-2) under subchapter XVI (or under a [State](/usc/42/1396b.md?p=w-7-D) plan approved under subchapter XVI) or, at the option of the [State](/usc/42/1396b.md?p=w-7-D), is described in [section 1396a(a)(10)(C) of this title](/usc/42/1396a.md?p=a-10-C).
  - (2) **Treatment of certain individuals previously covered under a waiver—**
    - (A) In the case of a [State](/usc/42/1396b.md?p=w-7-D) which—
      - (i) at the time of its election to provide coverage for [home and community care](#a) under this section has a waiver approved under section [1396n(c)](/usc/42/1396n.md?p=c) or [1396n(d)](/usc/42/1396n.md?p=d) of this title with respect to individuals 65 years of age or older, and
      - (ii) subsequently discontinues such waiver, individuals who were eligible for benefits under the waiver as of the date of its discontinuance and who would, but for [income](/usc/42/292s.md?p=c-4) or resources, be eligible for medical assistance for [home and community care](#a) under the plan shall, notwithstanding any other provision of this subchapter, be deemed a [functionally disabled elderly individual](#b-1) for so long as the individual would have remained eligible for medical assistance under such waiver.
    - (B) In the case of a [State](/usc/42/1396b.md?p=w-7-D) which used a health insuring organization before January 1, 1986, and which, as of December 31, 1990, had in effect a waiver under [section 1315 of this title](/usc/42/1315.md) that provides under the [State](/usc/42/1396b.md?p=w-7-D) plan under this subchapter for [personal care services](/usc/42/1396b.md?p=l-5-C) for functionally disabled individuals, the term “[functionally disabled elderly individual](#b-1)” may include, at the option of the [State](/usc/42/1396b.md?p=w-7-D), an individual who—
      - (i) is 65 years of age or older or is disabled (as determined under the supplemental security [income](/usc/42/292s.md?p=c-4) [program](/usc/42/274l–1.md?p=4) under subchapter XVI);
      - (ii) is determined to meet the test of functional disability applied under the waiver as of such date; and
      - (iii) meets the resource requirement and [income](/usc/42/292s.md?p=c-4) [standard](/usc/42/1320d.md?p=7) that apply in the [State](/usc/42/1396b.md?p=w-7-D) to individuals described in [section 1396a(a)(10)(A)(ii)(V) of this title](/usc/42/1396a.md?p=a-10-A-ii-V).
  - (3) **Use of projected income—** In applying [section 1396b(f)(1) of this title](/usc/42/1396b.md?p=f-1) in determining the eligibility of an individual (described in [section 1396a(a)(10)(C) of this title](/usc/42/1396a.md?p=a-10-C)) for medical assistance for [home and community care](#a), a [State](/usc/42/1396b.md?p=w-7-D) may, at its option, provide for the determination of the individual’s anticipated medical expenses (to be deducted from [income](/usc/42/292s.md?p=c-4)) over a period of up to 6 months.
- (c) **Determinations of functional disability—**
  - (1) **In general—** In this section, an individual is “functionally disabled” if the individual—
    - (A) is unable to perform without substantial assistance from another individual at least 2 of the following 3 activities of daily living: toileting, transferring, and eating; or
    - (B) has a primary or secondary diagnosis of Alzheimer’s disease and is (i) unable to perform without substantial human assistance ([including](/usc/42/1301.md?p=b) verbal reminding or physical cueing) or supervision at least 2 of the following 5 activities of daily living: bathing, dressing, toileting, transferring, and eating; or (ii) cognitively impaired so as to require substantial supervision from another individual because he or she engages in inappropriate behaviors that pose serious health or safety [hazards](/usc/42/5165f.md?p=a-3) to himself or herself or others.
  - (2) **Assessments of functional disability—**
    - (A) **Requests for assessments—** If a [State](/usc/42/1396b.md?p=w-7-D) has elected to provide [home and community care](#a) under this section, upon the request of an individual who is 65 years of age or older and who meets the requirements of [subsection (b)(1)(C)](#b-1-C) (or another [person](/usc/42/1301.md?p=a-3) on such individual’s behalf), the [State](/usc/42/1396b.md?p=w-7-D) shall provide for a comprehensive functional assessment under this subparagraph which—
      - (i) is used to determine whether or not the individual is functionally disabled,
      - (ii) is based on a uniform minimum data set specified by the [Secretary](/usc/42/1301.md?p=a-6) under [subparagraph (C)(i)](#c-2-C-i), and
      - (iii) uses an instrument which has been specified by the [State](/usc/42/1396b.md?p=w-7-D) under [subparagraph (B)](#c-2-B).

      No fee may be charged for such an assessment.

    - (B) **Specification of assessment instrument—** The [State](/usc/42/1396b.md?p=w-7-D) shall specify the instrument to be used in the [State](/usc/42/1396b.md?p=w-7-D) in complying with the requirement of [subparagraph (A)(iii)](#c-2-A-iii) which instrument shall be—
      - (i) one of the instruments designated under [subparagraph (C)(ii)](#c-2-C-ii); or
      - (ii) an instrument which the [Secretary](/usc/42/1301.md?p=a-6) has approved as being consistent with the minimum data set of core elements, common definitions, and utilization guidelines specified by the [Secretary](/usc/42/1301.md?p=a-6) in [subparagraph (C)(i)](#c-2-C-i).
    - (C) **Specification of assessment data set and instruments—** The [Secretary](/usc/42/1301.md?p=a-6) shall—
      - (i) not later than July 1, 1991—
        - (I) specify a minimum data set of core elements and common definitions for use in conducting the assessments required under [subparagraph (A)](#c-2-A); and
        - (II) establish guidelines for use of the data set; and
      - (ii) by not later than July 1, 1991, designate one or more instruments which are consistent with the specification made under [subparagraph (A)](#c-2-A) and which a [State](/usc/42/1396b.md?p=w-7-D) may specify under [subparagraph (B)](#c-2-B) for use in complying with the requirements of [subparagraph (A)](#c-2-A).
    - (D) **Periodic review—** Each individual who qualifies as a [functionally disabled elderly individual](#b-1) shall have the individual’s assessment periodically reviewed and revised not less often than once every 12 months.
    - (E) **Conduct of assessment by interdisciplinary teams—** An assessment under [subparagraph (A)](#c-2-A) and a review under [subparagraph (D)](#c-2-D) must be conducted by an interdisciplinary team designated by the [State](/usc/42/1396b.md?p=w-7-D). The [Secretary](/usc/42/1301.md?p=a-6) shall permit a [State](/usc/42/1396b.md?p=w-7-D) to provide for assessments and reviews through teams under contracts—
      - (i) with public organizations; or
      - (ii) with nonpublic organizations which do not provide [home and community care](#a) or [nursing facility services](/usc/42/1396d.md?p=f) and do not have a direct or indirect ownership or control interest in, or direct or indirect affiliation or relationship with, an entity that provides, community care or [nursing facility services](/usc/42/1396d.md?p=f).
    - (F) **Contents of assessment—** The interdisciplinary team must—
      - (i) identify in each such assessment or review each individual’s functional disabilities and need for [home and community care](#a), [including](/usc/42/1301.md?p=b) information about the individual’s health status, home and community environment, and informal support system; and
      - (ii) based on such assessment or review, determine whether the individual is (or continues to be) functionally disabled.

      The results of such an assessment or review shall be used in establishing, reviewing, and revising the individual’s [ICCP](#d-1) under [subsection (d)(1)](#d-1).

    - (G) **Appeal procedures—** Each [State](/usc/42/1396b.md?p=w-7-D) which elects to provide [home and community care](#a) under this section must have in effect an appeals process for individuals adversely affected by determinations under [subparagraph (F)](#c-2-F).
- (d) **Individual community care plan (ICCP)—**
  - (1) **“Individual community care plan” defined—** In this section, the terms “individual community care plan” and “ICCP” mean, with respect to a [functionally disabled elderly individual](#b-1), a written plan which—
    - (A) is established, and is periodically reviewed and revised, by a qualified case manager after a face-to-face interview with the individual or primary [caregiver](/usc/42/1397j.md?p=3) and based upon the most recent comprehensive functional assessment of such individual conducted under [subsection (c)(2)](#c-2);
    - (B) specifies, within any amount, duration, and scope limitations imposed on [home and community care](#a) provided under the [State](/usc/42/1396b.md?p=w-7-D) plan, the [home and community care](#a) to be provided to such individual under the plan, and indicates the individual’s preferences for the types and providers of services; and
    - (C) may specify other services required by such individual.

    An ICCP may also designate the specific providers (qualified to provide [home and community care](#a) under the [State](/usc/42/1396b.md?p=w-7-D) plan) which will provide the [home and community care](#a) described in [subparagraph (B)](#d-1-B). Nothing in this section shall be construed as authorizing an ICCP or the [State](/usc/42/1396b.md?p=w-7-D) to restrict the specific [persons](/usc/42/1301.md?p=a-3) or individuals (who are competent to provide [home and community care](#a) under the [State](/usc/42/1396b.md?p=w-7-D) plan) who will provide the [home and community care](#a) described in [subparagraph (B)](#d-1-B).

  - (2) **“Qualified community care case manager” defined—** In this section, the term “qualified community care case manager” means a nonprofit or [public agency](/usc/42/11851.md?p=8) or organization which—
    - (A) has experience or has been trained in establishing, and in periodically reviewing and revising, [individual community care plans](#d-1) and in the provision of case management services to the elderly;
    - (B) is responsible for (i) assuring that [home and community care](#a) covered under the [State](/usc/42/1396b.md?p=w-7-D) plan and specified in the [ICCP](#d-1) is being provided, (ii) visiting each individual’s home or community setting where care is being provided not less often than once every 90 days, and (iii) informing the elderly individual or primary [caregiver](/usc/42/1397j.md?p=3) on how to contact the case manager if service providers fail to properly provide services or other similar problems occur;
    - (C) in the case of a nonpublic agency, does not provide [home and community care](#a) or [nursing facility services](/usc/42/1396d.md?p=f) and does not have a direct or indirect ownership or control interest in, or direct or indirect affiliation or relationship with, an entity that provides, [home and community care](#a) or [nursing facility services](/usc/42/1396d.md?p=f);
    - (D) has procedures for assuring the quality of case management services that [includes](/usc/42/1301.md?p=b) a peer review process;
    - (E) completes the [ICCP](#d-1) in a timely manner and reviews and discusses new and revised [ICCPs](#d-1) with elderly individuals or primary [caregivers](/usc/42/1397j.md?p=3); and
    - (F) meets such other [standards](/usc/42/1320d.md?p=7), established by the [Secretary](/usc/42/1301.md?p=a-6), as to assure that—
      - (i) such a manager is competent to perform case management functions;
      - (ii) individuals whose [home and community care](#a) they manage are not at risk of financial [exploitation](/usc/42/1397j.md?p=8) due to such a manager; and
      - (iii) meets such other [standards](/usc/42/1320d.md?p=7) as the [State](/usc/42/1396b.md?p=w-7-D) may establish.

    The [Secretary](/usc/42/1301.md?p=a-6) may waive the requirement of [subparagraph (C)](#d-2-C) in the case of a nonprofit [agency](/usc/42/1397n–12.md?p=1) located in a rural area.

  - (3) **Appeals process—** Each [State](/usc/42/1396b.md?p=w-7-D) which elects to provide [home and community care](#a) under this section must have in effect an appeals process for individuals who disagree with the [ICCP](#d-1) established.
- (e) **Ceiling on payment amounts and maintenance of effort—**
  - (1) **Ceiling on payment amounts—** Payments may not be made under [section 1396b(a) of this title](/usc/42/1396b.md?p=a) to a [State](/usc/42/1396b.md?p=w-7-D) for [home and community care](#a) provided under this section in a quarter to the extent that the medical assistance for such care in the quarter exceeds 50 percent of the product of—
    - (A) the average number of individuals in the quarter receiving such care under this section;
    - (B) the average per diem rate of payment which the [Secretary](/usc/42/1301.md?p=a-6) has determined (before the beginning of the quarter) will be payable under subchapter XVIII (without regard to coinsurance) for extended care services to be provided in the [State](/usc/42/1396b.md?p=w-7-D) during such quarter; and
    - (C) the number of days in such quarter.
  - (2) **Maintenance of effort—**
    - (A) **Annual reports—** As a condition for the receipt of payment under [section 1396b(a) of this title](/usc/42/1396b.md?p=a) with respect to medical assistance provided by a [State](/usc/42/1396b.md?p=w-7-D) for [home and community care](#a) (other than a waiver under [section 1396n(c) of this title](/usc/42/1396n.md?p=c) and other than [home health care services](/usc/42/1396b.md?p=l-5-B) described in [section 1396d(a)(7) of this title](/usc/42/1396d.md?p=a-7) and [personal care services](/usc/42/1396b.md?p=l-5-C) specified under regulations under [section 1396d(a)(23) of this title](/usc/42/1396d.md?p=a-23)), the [State](/usc/42/1396b.md?p=w-7-D) shall report to the [Secretary](/usc/42/1301.md?p=a-6), with respect to each Federal fiscal year (beginning with fiscal year 1990) and in a format developed or approved by the [Secretary](/usc/42/1301.md?p=a-6), the amount of [funds](/usc/42/12854.md?p=3) obligated by the [State](/usc/42/1396b.md?p=w-7-D) with respect to the provision of [home and community care](#a) to the functionally disabled elderly in that fiscal year.
    - (B) **Reduction in payment if failure to maintain effort—** If the amount reported under [subparagraph (A)](#e-2-A) by a [State](/usc/42/1396b.md?p=w-7-D) with respect to a fiscal year is less than the amount reported under [subparagraph (A)](#e-2-A) with respect to fiscal year 1989, the [Secretary](/usc/42/1301.md?p=a-6) shall provide for a reduction in payments to the [State](/usc/42/1396b.md?p=w-7-D) under [section 1396b(a) of this title](/usc/42/1396b.md?p=a) in an amount equal to the difference between the amounts so reported.
- (f) **Minimum requirements for home and community care—**
  - (1) **Requirements—** Home and Community[^1] care provided under this section must meet such requirements for individuals’ rights and quality as are published or developed by the [Secretary](/usc/42/1301.md?p=a-6) under [subsection (k)](#k). Such requirements shall include—
    - (A) the requirement that individuals providing care are competent to provide such care; and
    - (B) the rights specified in [paragraph (2)](#f-2).
  - (2) **Specified rights—** The rights specified in this paragraph are as follows:
    - (A) The right to be fully informed in advance, orally and in writing, of the care to be provided, to be fully informed in advance of any changes in care to be provided, and (except with respect to an individual determined incompetent) to participate in planning care or changes in care.
    - (B) The right to voice grievances with respect to services that are (or fail to be) furnished without discrimination or reprisal for voicing grievances, and to be told how to complain to [State](/usc/42/1396b.md?p=w-7-D) and local authorities.
    - (C) The right to confidentiality of personal and clinical records.
    - (D) The right to privacy and to have one’s property treated with respect.
    - (E) The right to refuse all or part of any care and to be informed of the likely consequences of such refusal.
    - (F) The right to education or [training](/usc/42/285e–2.md?p=b-2) for oneself and for members of one’s [family](/usc/42/290ff–4.md?p=d-2) or household on the management of care.
    - (G) The right to be free from physical or mental [abuse](/usc/42/1397j.md?p=1), corporal punishment, and any physical or chemical restraints imposed for purposes of discipline or convenience and not included in an individual’s [ICCP](#d-1).
    - (H) The right to be fully informed orally and in writing of the individual’s rights.
    - (I) Guidelines for such minimum compensation for individuals providing such care as will assure the availability and continuity of competent individuals to provide such care for functionally disabled individuals who have functional disabilities of varying levels of severity.
    - (J) Any other rights established by the [Secretary](/usc/42/1301.md?p=a-6).
- (g) **Minimum requirements for small community care settings—**
  - (1) **“Small community care setting” defined—** In this section, the term “small community care setting” means—
    - (A) a nonresidential setting that serves more than 2 and less than 8 individuals; or
    - (B) a residential setting in which more than 2 and less than 8 unrelated adults reside and in which personal services (other than merely [board](/usc/42/10261.md?p=2)) are provided in conjunction with residing in the setting.
  - (2) **Minimum requirements—** A [small community care setting](#g-1) in which community care is provided under this section must—
    - (A) meet such requirements as are published or developed by the [Secretary](/usc/42/1301.md?p=a-6) under [subsection (k)](#k);
    - (B) meet the requirements of paragraphs (1)(A), (1)(C), (1)(D), (3), and (6) of [section 1396r(c) of this title](/usc/42/1396r.md?p=c), to the extent applicable to such a setting;
    - (C) inform each individual receiving community care under this section in the setting, orally and in writing at the time the individual first receives community care in the setting, of the individual’s legal rights with respect to such a setting and the care provided in the setting;
    - (D) meet any applicable [State](/usc/42/1396b.md?p=w-7-D) or local requirements regarding certification or licensure;
    - (E) meet any applicable [State](/usc/42/1396b.md?p=w-7-D) and local zoning, [building](/usc/42/6881.md?p=i-3), and [housing](/usc/42/1490p–2.md?p=r-3) codes, and [State](/usc/42/1396b.md?p=w-7-D) and local fire and safety regulations; and
    - (F) be designed, constructed, equipped, and maintained in a manner to protect the health and safety of residents.
- (h) **Minimum requirements for large community care settings—**
  - (1) **“Large community care setting” defined—** In this section, the term “large community care setting” means—
    - (A) a nonresidential setting in which more than 8 individuals are served; or
    - (B) a residential setting in which more than 8 unrelated adults reside and in which personal services are provided in conjunction with residing in the setting in which [home and community care](#a) under this section is provided.
  - (2) **Minimum requirements—** A [large community care setting](#h-1) in which community care is provided under this section must—
    - (A) meet such requirements as are published or developed by the [Secretary](/usc/42/1301.md?p=a-6) under [subsection (k)](#k);
    - (B) meet the requirements of paragraphs (1)(A), (1)(C), (1)(D), (3), and (6) of [section 1396r(c) of this title](/usc/42/1396r.md?p=c), to the extent applicable to such a setting;
    - (C) inform each individual receiving community care under this section in the setting, orally and in writing at the time the individual first receives [home and community care](#a) in the setting, of the individual’s legal rights with respect to such a setting and the care provided in the setting; and
    - (D) meet the requirements of paragraphs (2) and (3) of [section 1396r(d) of this title](/usc/42/1396r.md?p=d) (relating to [administration](/usc/42/1301.md?p=a-10) and other matters) in the same manner as such requirements apply to [nursing facilities](/usc/42/1396r.md?p=a) under such section; except that, in applying the requirement of [section 1396r(d)(2) of this title](/usc/42/1396r.md?p=d-2) (relating to life safety code), the [Secretary](/usc/42/1301.md?p=a-6) shall provide for the application of such life safety requirements (if any) that are appropriate to the setting.
  - (3) **Disclosure of ownership and control interests and exclusion of repeated violators—** A community care setting—
    - (A) must disclose [persons](/usc/42/1301.md?p=a-3) with an ownership or control interest ([including](/usc/42/1301.md?p=b) such [persons](/usc/42/1301.md?p=a-3) as defined in [section 1320a–3(a)(3) of this title](/usc/42/1320a–3.md?p=a-3)) in the setting; and
    - (B) may not have, as a [person with an ownership or control interest](/usc/42/14902.md?p=15) in the setting, any individual or [person](/usc/42/1301.md?p=a-3) who has been excluded from participation in the [program](/usc/42/274l–1.md?p=4) under this subchapter or who has had such an ownership or control interest in one or more community care settings which have been found repeatedly to be substandard or to have failed to meet the requirements of [paragraph (2)](#h-2).
- (i) **Survey and certification process—**
  - (1) **Certifications—**
    - (A) **Responsibilities of the State—** Under each [State](/usc/42/1396b.md?p=w-7-D) plan under this subchapter, the [State](/usc/42/1396b.md?p=w-7-D) shall be responsible for certifying the compliance of providers of [home and community care](#a) and community care settings with the applicable requirements of subsections [(f)](#f), [(g)](#g) and [(h)](#h). The failure of the [Secretary](/usc/42/1301.md?p=a-6) to issue regulations to carry out this subsection shall not relieve a [State](/usc/42/1396b.md?p=w-7-D) of its responsibility under this subsection.
    - (B) **Responsibilities of the Secretary—** The [Secretary](/usc/42/1301.md?p=a-6) shall be responsible for certifying the compliance of [State](/usc/42/1396b.md?p=w-7-D) providers of [home and community care](#a), and of [State](/usc/42/1396b.md?p=w-7-D) community care settings in which such care is provided, with the requirements of subsections [(f)](#f), [(g)](#g) and [(h)](#h).
    - (C) **Frequency of certifications—** Certification of providers and settings under this subsection shall occur no less frequently than once every 12 months.
  - (2) **Reviews of providers—**
    - (A) **In general—** The certification under this subsection with respect to a provider of home or community care must be based on a periodic review of the provider’s performance in providing the care required under [ICCP](#d-1)’s in accordance with the requirements of [subsection (f)](#f).
    - (B) **Special reviews of compliance—** Where the [Secretary](/usc/42/1301.md?p=a-6) has reason to question the compliance of a provider of home or community care with any of the requirements of [subsection (f)](#f), the [Secretary](/usc/42/1301.md?p=a-6) may conduct a review of the provider and, on the basis of that review, make independent and binding determinations concerning the extent to which the provider meets such requirements.
  - (3) **Surveys of community care settings—**
    - (A) **In general—** The certification under this subsection with respect to community care settings must be based on a survey. Such survey for such a setting must be conducted without prior notice to the setting. Any individual who notifies (or [causes](/usc/42/9908.md?p=c-2) to be notified) a community care setting of the time or date on which such a survey is scheduled to be conducted is subject to a civil money penalty of not to exceed $2,000. The provisions of [section 1320a–7a of this title](/usc/42/1320a–7a.md) (other than subsections [(a)](#a) and [(b)](#b)) shall apply to a civil money penalty under the previous sentence in the same manner as such provisions apply to a penalty or proceeding under [section 1320a–7a(a) of this title](/usc/42/1320a–7a.md?p=a). The [Secretary](/usc/42/1301.md?p=a-6) shall review each [State](/usc/42/1396b.md?p=w-7-D)’s procedures for scheduling and conducting such surveys to assure that the [State](/usc/42/1396b.md?p=w-7-D) has taken all reasonable steps to avoid giving notice of such a survey through the scheduling procedures and the conduct of the surveys themselves.
    - (B) **Survey protocol—** Surveys under this paragraph shall be conducted based upon a protocol which the [Secretary](/usc/42/1301.md?p=a-6) has provided for under [subsection (k)](#k).
    - (C) **Prohibition of conflict of interest in survey team membership—** A [State](/usc/42/1396b.md?p=w-7-D) and the [Secretary](/usc/42/1301.md?p=a-6) may not use as a member of a survey team under this paragraph an individual who is serving (or has served within the previous 2 years) as a member of the staff of, or as a consultant to, the community care setting being surveyed (or the [person](/usc/42/1301.md?p=a-3) responsible for such setting) respecting compliance with the requirements of subsection [(g)](#g) or [(h)](#h) or who has a personal or familial financial interest in the setting being surveyed.
    - (D) **Validation surveys of community care settings—** The [Secretary](/usc/42/1301.md?p=a-6) shall conduct onsite surveys of a [representative](/usc/42/3058f.md?p=5) sample of community care settings in each [State](/usc/42/1396b.md?p=w-7-D), within 2 months of the date of surveys conducted under [subparagraph (A)](#i-3-A) by the [State](/usc/42/1396b.md?p=w-7-D), in a sufficient number to allow inferences about the adequacies of each [State](/usc/42/1396b.md?p=w-7-D)’s surveys conducted under [subparagraph (A)](#i-3-A). In conducting such surveys, the [Secretary](/usc/42/1301.md?p=a-6) shall use the same survey protocols as the [State](/usc/42/1396b.md?p=w-7-D) is required to use under [subparagraph (B)](#i-3-B). If the [State](/usc/42/1396b.md?p=w-7-D) has determined that an individual setting meets the requirements of [subsection (g)](#g), but the [Secretary](/usc/42/1301.md?p=a-6) determines that the setting does not meet such requirements, the [Secretary](/usc/42/1301.md?p=a-6)’s determination as to the setting’s noncompliance with such requirements is binding and supersedes that of the [State](/usc/42/1396b.md?p=w-7-D) survey.
    - (E) **Special surveys of compliance—** Where the [Secretary](/usc/42/1301.md?p=a-6) has reason to question the compliance of a community care setting with any of the requirements of subsection [(g)](#g) or [(h)](#h), the [Secretary](/usc/42/1301.md?p=a-6) may conduct a survey of the setting and, on the basis of that survey, make independent and binding determinations concerning the extent to which the setting meets such requirements.
  - (4) **Investigation of complaints and monitoring of providers and settings—** Each [State](/usc/42/1396b.md?p=w-7-D) and the [Secretary](/usc/42/1301.md?p=a-6) shall maintain procedures and adequate staff to investigate complaints of [violations](/usc/42/2000e–16a.md?p=c) of applicable requirements imposed on providers of community care or on community care settings under subsections [(f)](#f), [(g)](#g) and [(h)](#h).
  - (5) **Investigation of allegations of individual neglect and abuse and misappropriation of individual property—** The [State](/usc/42/1396b.md?p=w-7-D) shall provide, through the [agency](/usc/42/1397n–12.md?p=1) responsible for surveys and certification of providers of home or community care and community care settings under this subsection, for a process for the receipt, review, and investigation of allegations of individual [neglect](/usc/42/1397j.md?p=16) and [abuse](/usc/42/1397j.md?p=1) ([including](/usc/42/1301.md?p=b) injuries of unknown source) by individuals providing such care or in such setting and of misappropriation of individual property by such individuals. The [State](/usc/42/1396b.md?p=w-7-D) shall, after notice to the individual involved and a reasonable opportunity for hearing for the individual to rebut allegations, make a finding as to the accuracy of the allegations. If the [State](/usc/42/1396b.md?p=w-7-D) finds that an individual has neglected or abused an individual receiving community care or misappropriated such individual’s property, the [State](/usc/42/1396b.md?p=w-7-D) shall notify the individual against whom the finding is made. A [State](/usc/42/1396b.md?p=w-7-D) shall not make a finding that a [person](/usc/42/1301.md?p=a-3) has neglected an individual receiving community care if the [person](/usc/42/1301.md?p=a-3) demonstrates that such [neglect](/usc/42/1397j.md?p=16) was caused by factors beyond the control of the [person](/usc/42/1301.md?p=a-3). The [State](/usc/42/1396b.md?p=w-7-D) shall provide for public disclosure of findings under this paragraph upon request and for inclusion, in any such disclosure of such findings, of any brief statement (or of a clear and accurate summary thereof) of the individual disputing such findings.
  - (6) **Disclosure of results of inspections and activities—**
    - (A) **Public information—** Each [State](/usc/42/1396b.md?p=w-7-D), and the [Secretary](/usc/42/1301.md?p=a-6), shall make available to the public—
      - (i) information respecting all surveys, reviews, and certifications made under this subsection respecting providers of home or community care and community care settings, [including](/usc/42/1301.md?p=b) statements of deficiencies,
      - (ii) copies of cost reports (if any) of such providers and settings filed under this subchapter,
      - (iii) copies of statements of ownership under [section 1320a–3 of this title](/usc/42/1320a–3.md), and
      - (iv) information disclosed under [section 1320a–5 of this title](/usc/42/1320a–5.md).
    - (B) **Notices of substandard care—** If a [State](/usc/42/1396b.md?p=w-7-D) finds that—
      - (i) a provider of home or community care has provided care of substandard quality with respect to an individual, the [State](/usc/42/1396b.md?p=w-7-D) shall make a reasonable effort to notify promptly (I) an immediate [family member](/usc/42/1320d–9.md?p=b-1) of each such individual and (II) individuals receiving home or community care from that provider under this subchapter, or
      - (ii) a community care setting is substandard, the [State](/usc/42/1396b.md?p=w-7-D) shall make a reasonable effort to notify promptly (I) individuals receiving community care in that setting, and (II) immediate [family members](/usc/42/1320d–9.md?p=b-1) of such individuals.
    - (C) **Access to fraud control units—** Each [State](/usc/42/1396b.md?p=w-7-D) shall provide its [State](/usc/42/1396b.md?p=w-7-D) [medicaid](/usc/42/1396b.md?p=w-3-E-iii-III-aa) fraud and [abuse](/usc/42/1397j.md?p=1) control [unit](/usc/42/1395w–114b.md?p=g-2) (established under [section 1396b(q) of this title](/usc/42/1396b.md?p=q)) with access to all information of the [State agency](/usc/42/1320a–7a.md?p=i-1) responsible for surveys, reviews, and certifications under this subsection.
- (j) **Enforcement process for providers of community care—**
  - (1) **State authority—**
    - (A) **In general—** If a [State](/usc/42/1396b.md?p=w-7-D) finds, on the basis of a review under [subsection (i)(2)](#i-2) or otherwise, that a provider of home or community care no longer meets the requirements of this section, the [State](/usc/42/1396b.md?p=w-7-D) may terminate the provider’s participation under the [State](/usc/42/1396b.md?p=w-7-D) plan and may provide in addition for a civil money penalty. Nothing in this subparagraph shall be construed as restricting the remedies available to a [State](/usc/42/1396b.md?p=w-7-D) to remedy a provider’s deficiencies. If the [State](/usc/42/1396b.md?p=w-7-D) finds that a provider meets such requirements but, as of a previous period, did not meet such requirements, the [State](/usc/42/1396b.md?p=w-7-D) may provide for a civil money penalty under [paragraph (2)(A)](#j-2-A) for the period during which it finds that the provider was not in compliance with such requirements.
    - (B) **Civil money penalty—**
      - (i) **In general—** Each [State](/usc/42/1396b.md?p=w-7-D) shall establish by law (whether statute or regulation) at least the following remedy: A civil money penalty assessed and collected, with interest, for each day in which the provider is or was out of compliance with a requirement of this section. [Funds](/usc/42/12854.md?p=3) collected by a [State](/usc/42/1396b.md?p=w-7-D) as a result of imposition of such a penalty (or as a result of the imposition by the [State](/usc/42/1396b.md?p=w-7-D) of a civil money penalty under [subsection (i)(3)(A)](#i-3-A)) may be applied to reimbursement of individuals for personal [funds](/usc/42/12854.md?p=3) lost due to a failure of home or community care providers to meet the requirements of this section. The [State](/usc/42/1396b.md?p=w-7-D) also shall specify criteria, as to when and how this remedy is to be applied and the amounts of any penalties. Such criteria shall be designed so as to minimize the time between the identification of [violations](/usc/42/2000e–16a.md?p=c) and final imposition of the penalties and shall provide for the imposition of incrementally more severe penalties for repeated or uncorrected deficiencies.
      - (ii) **Deadline and guidance—** Each [State](/usc/42/1396b.md?p=w-7-D) which elects to provide [home and community care](#a) under this section must establish the civil money penalty remedy described in [clause (i)](#j-1-B-i) applicable to all providers of community care covered under this section. The [Secretary](/usc/42/1301.md?p=a-6) shall provide, through regulations or otherwise by not later than July 1, 1990, guidance to [States](/usc/42/1396b.md?p=w-7-D) in establishing such remedy; but the failure of the [Secretary](/usc/42/1301.md?p=a-6) to provide such guidance shall not relieve a [State](/usc/42/1396b.md?p=w-7-D) of the responsibility for establishing such remedy.
  - (2) **Secretarial authority—**
    - (A) **For State providers—** With respect to a [State](/usc/42/1396b.md?p=w-7-D) provider of home or community care, the [Secretary](/usc/42/1301.md?p=a-6) shall have the authority and duties of a [State](/usc/42/1396b.md?p=w-7-D) under this subsection, except that the civil money penalty remedy described in [subparagraph (C)](#j-2-C) shall be substituted for the civil money remedy described in [paragraph (1)(B)(i)](#j-1-B-i).
    - (B) **Other providers—** With respect to any other provider of home or community care in a [State](/usc/42/1396b.md?p=w-7-D), if the [Secretary](/usc/42/1301.md?p=a-6) finds that a provider no longer meets a requirement of this section, the [Secretary](/usc/42/1301.md?p=a-6) may terminate the provider’s participation under the [State](/usc/42/1396b.md?p=w-7-D) plan and may provide, in addition, for a civil money penalty under [subparagraph (C)](#j-2-C). If the [Secretary](/usc/42/1301.md?p=a-6) finds that a provider meets such requirements but, as of a previous period, did not meet such requirements, the [Secretary](/usc/42/1301.md?p=a-6) may provide for a civil money penalty under [subparagraph (C)](#j-2-C) for the period during which the [Secretary](/usc/42/1301.md?p=a-6) finds that the provider was not in compliance with such requirements.
    - (C) **Civil money penalty—** If the [Secretary](/usc/42/1301.md?p=a-6) finds on the basis of a review under [subsection (i)(2)](#i-2) or otherwise that a home or community care provider no longer meets the requirements of this section, the [Secretary](/usc/42/1301.md?p=a-6) shall impose a civil money penalty in an amount not to exceed $10,000 for each day of noncompliance. The provisions of [section 1320a–7a of this title](/usc/42/1320a–7a.md) (other than subsections [(a)](#a) and [(b)](#b)) shall apply to a civil money penalty under the previous sentence in the same manner as such provisions apply to a penalty or proceeding under [section 1320a–7a(a) of this title](/usc/42/1320a–7a.md?p=a). The [Secretary](/usc/42/1301.md?p=a-6) shall specify criteria, as to when and how this remedy is to be applied and the amounts of any penalties. Such criteria shall be designed so as to minimize the time between the identification of [violations](/usc/42/2000e–16a.md?p=c) and final imposition of the penalties and shall provide for the imposition of incrementally more severe penalties for repeated or uncorrected deficiencies.
- (k) **Secretarial responsibilities—**
  - (1) **Publication of interim requirements—**
    - (A) **In general—** The [Secretary](/usc/42/1301.md?p=a-6) shall publish, by December 1, 1991, a proposed regulation that sets forth interim requirements, consistent with [subparagraph (B)](#k-1-B), for the provision of [home and community care](#a) and for community care settings, [including](/usc/42/1301.md?p=b)—
      - (i) the requirements of [subsection (c)(2)](#c-2) (relating to comprehensive functional assessments, [including](/usc/42/1301.md?p=b) the use of assessment instruments), of [subsection (d)(2)(E)](#d-2-E) (relating to qualifications for qualified case managers), of [subsection (f)](#f) (relating to minimum requirements for [home and community care](#a)), of [subsection (g)](#g) (relating to minimum requirements for [small community care settings](#g-1)), and of [subsection (h)](#h) (relating to minimum requirements for [large community care settings](#h-1)), and
      - (ii) survey protocols (for use under [subsection (i)(3)(A)](#i-3-A)) which relate to such requirements.
    - (B) **Minimum protections—** Interim requirements under [subparagraph (A)](#k-1-A) and final requirements under [paragraph (2)](#k-2) shall assure, through methods other than reliance on [State](/usc/42/1396b.md?p=w-7-D) licensure processes, that individuals receiving [home and community care](#a) are protected from [neglect](/usc/42/1397j.md?p=16), physical and sexual [abuse](/usc/42/1397j.md?p=1), financial [exploitation](/usc/42/1397j.md?p=8), inappropriate involuntary restraint, and the provision of health care services by unqualified personnel in community care settings.
  - (2) **Development of final requirements—** The [Secretary](/usc/42/1301.md?p=a-6) shall develop, by not later than October 1, 1992—
    - (A) final requirements, consistent with [paragraph (1)(B)](#k-1-B), respecting the provision of appropriate, quality [home and community care](#a) and respecting community care settings under this section, and [including](/usc/42/1301.md?p=b) at least the requirements referred to in [paragraph (1)(A)(i)](#k-1-A-i), and
    - (B) survey protocols and methods for evaluating and assuring the quality of community care settings.

    The [Secretary](/usc/42/1301.md?p=a-6) may, from time to time, revise such requirements, protocols, and methods.

  - (3) **No delegation to States—** The [Secretary](/usc/42/1301.md?p=a-6)’s authority under this subsection shall not be delegated to [States](/usc/42/1396b.md?p=w-7-D).
  - (4) **No prevention of more stringent requirements by States—** Nothing in this section shall be construed as preventing [States](/usc/42/1396b.md?p=w-7-D) from imposing requirements that are more stringent than the requirements published or developed by the [Secretary](/usc/42/1301.md?p=a-6) under this subsection.
- (l) **Waiver of Statewideness—** [States](/usc/42/1396b.md?p=w-7-D) may waive the requirement of [section 1396a(a)(1) of this title](/usc/42/1396a.md?p=a-1) (related to Statewideness) for a [program](/usc/42/274l–1.md?p=4) of [home and community care](#a) under this section.
- (m) **Limitation on amount of expenditures as medical assistance—**
  - (1) **Limitation on amount—** The amount of [funds](/usc/42/12854.md?p=3) that may be expended as medical assistance to carry out the purposes of this section shall be for fiscal year 1991, $40,000,000, for fiscal year 1992, $70,000,000, for fiscal year 1993, $130,000,000, for fiscal year 1994, $160,000,000, and for fiscal year 1995, $180,000,000.
  - (2) **Assurance of entitlement to service—** A [State](/usc/42/1396b.md?p=w-7-D) which receives Federal medical assistance for expenditures for [home and community care](#a) under this section must provide [home and community care](#a) specified under the [Individual Community Care Plan](#d-1) under [subsection (d)](#d) to individuals described in [subsection (b)](#b) for the duration of the election period, without regard to the amount of [funds](/usc/42/12854.md?p=3) available to the [State](/usc/42/1396b.md?p=w-7-D) under [paragraph (1)](#m-1). For purposes of this paragraph, an election period is the period of 4 or more calendar quarters elected by the [State](/usc/42/1396b.md?p=w-7-D), and approved by the [Secretary](/usc/42/1301.md?p=a-6), for the provision of [home and community care](#a) under this section.
  - (3) **Limitation on eligibility—** The [State](/usc/42/1396b.md?p=w-7-D) may limit eligibility for [home and community care](#a) under this section during an election period under [paragraph (2)](#m-2) to reasonable classifications (based on age, degree of functional disability, and need for services).
  - (4) **Allocation of medical assistance—** The [Secretary](/usc/42/1301.md?p=a-6) shall establish a limitation on the amount of Federal medical assistance available to any [State](/usc/42/1396b.md?p=w-7-D) during the [State](/usc/42/1396b.md?p=w-7-D)’s election period under [paragraph (2)](#m-2). The limitation under this paragraph shall take into account the limitation under [paragraph (1)](#m-1) and the number of elderly individuals age 65 or over residing in such [State](/usc/42/1396b.md?p=w-7-D) in relation to the number of such elderly individuals in the [United States](/usc/42/1301.md?p=a-2) during 1990. For purposes of the previous sentence, elderly individuals shall, to the maximum extent practicable, be low-[income](/usc/42/292s.md?p=c-4) elderly individuals.

# §1396u. Community supported living arrangements services

- (a) **Community supported living arrangements services—** In this subchapter, the term “community supported living arrangements services” means one or more of the following services meeting the requirements of [subsection (h)](#h) provided in a [State](/usc/42/1396b.md?p=w-7-D) eligible to provide services under this section (as defined in [subsection (d)](#d)) to assist a developmentally disabled individual (as defined in [subsection (b)](#b)) in activities of daily living necessary to permit such individual to live in the individual’s own home, apartment, [family](/usc/42/290ff–4.md?p=d-2) home, or rental [unit](/usc/42/1395w–114b.md?p=g-2) furnished in a community supported living arrangement setting:
  - (1) Personal assistance.
  - (2) [Training](/usc/42/285e–2.md?p=b-2) and habilitation services (necessary to assist the individual in achieving increased integration, [independence](/usc/42/242q–4.md?p=1-B) and productivity).
  - (3) 24-hour emergency assistance (as defined by the [Secretary](/usc/42/1301.md?p=a-6)).
  - (4) Assistive technology.
  - (5) Adaptive equipment.
  - (6) Other services (as approved by the [Secretary](/usc/42/1301.md?p=a-6), except those services described in [subsection (g)](#g)).
  - (7) Support services necessary to aid an individual to participate in community activities.
- (b) **“Developmentally disabled individual” defined—** In this subchapter the term,[^1] “developmentally disabled individual” means an individual who as defined by the [Secretary](/usc/42/1301.md?p=a-6) is described within the term “mental retardation and related conditions” as defined in regulations as in effect on July 1, 1990, and who is residing with the individual’s [family](/usc/42/290ff–4.md?p=d-2) or legal guardian in such individual’s own home in which no more than 3 other [recipients](/usc/42/2996a.md?p=6) of services under this section are residing and without regard to whether or not such individual is at risk of institutionalization (as defined by the [Secretary](/usc/42/1301.md?p=a-6)).
- (c) **Criteria for selection of participating States—** The [Secretary](/usc/42/1301.md?p=a-6) shall develop criteria to review the applications of [States](/usc/42/1396b.md?p=w-7-D) submitted under this section to provide community supported living arrangement services. The [Secretary](/usc/42/1301.md?p=a-6) shall provide in such criteria that during the first 5 years of the provision of services under this section that no less than 2 and no more than 8 [States](/usc/42/1396b.md?p=w-7-D) shall be allowed to receive Federal financial participation for providing the services described in this section.
- (d) **Quality assurance—** A [State](/usc/42/1396b.md?p=w-7-D) selected by the [Secretary](/usc/42/1301.md?p=a-6) to provide services under this section shall in order to continue to receive Federal financial participation for providing services under this section be required to establish and maintain a quality assurance [program](/usc/42/274l–1.md?p=4), that provides that—
  - (1) the [State](/usc/42/1396b.md?p=w-7-D) will certify and survey providers of services under this section (such surveys to be unannounced and average at least 1 a year);
  - (2) the [State](/usc/42/1396b.md?p=w-7-D) will adopt [standards](/usc/42/1320d.md?p=7) for survey and certification that include—
    - (A) minimum qualifications and [training](/usc/42/285e–2.md?p=b-2) requirements for provider staff;
    - (B) financial operating [standards](/usc/42/1320d.md?p=7); and
    - (C) a consumer grievance process;
  - (3) the [State](/usc/42/1396b.md?p=w-7-D) will provide a system that allows for monitoring [boards](/usc/42/10261.md?p=2) consisting of providers, [family members](/usc/42/1320d–9.md?p=b-1), consumers, and neighbors;
  - (4) the [State](/usc/42/1396b.md?p=w-7-D) will establish reporting procedures to make available information to the public;
  - (5) the [State](/usc/42/1396b.md?p=w-7-D) will provide ongoing monitoring of the health and well-being of each [recipient](/usc/42/2996a.md?p=6);
  - (6) the [State](/usc/42/1396b.md?p=w-7-D) will provide the services defined in [subsection (a)](#a) in accordance with an individual support plan (as defined by the [Secretary](/usc/42/1301.md?p=a-6) in regulations); and
  - (7) the [State](/usc/42/1396b.md?p=w-7-D) plan amendment under this section shall be reviewed by the [State Council on Developmental Disabilities](/usc/42/15002.md?p=29) established under section 125 of the [Developmental Disabilities](/usc/42/280i.md?p=d-2) Assistance and Bill of Rights Act of 2000 [[42 U.S.C. § 15025](/usc/42/15025.md)] and the [protection and advocacy system](/usc/42/15002.md?p=22) established under subtitle C of that Act [[42 U.S.C. 15041](/usc/42/15041.md) et seq.].

  The [Secretary](/usc/42/1301.md?p=a-6) shall not approve a quality assurance plan under this subsection and allow a [State](/usc/42/1396b.md?p=w-7-D) to continue to receive Federal financial participation under this section unless the [State](/usc/42/1396b.md?p=w-7-D) provides for public hearings on the plan prior to adoption and implementation of its plan under this subsection.

- (e) **Maintenance of effort—** [States](/usc/42/1396b.md?p=w-7-D) selected by the [Secretary](/usc/42/1301.md?p=a-6) to receive Federal financial participation to provide services under this section shall maintain current levels of spending for such services in order to be eligible to continue to receive Federal financial participation for the provision of such services under this section.
- (f) **Excluded services—** No Federal financial participation shall be allowed for the provision of the following services under this section:
  - (1) Room and [board](/usc/42/10261.md?p=2).
  - (2) Cost of prevocational, vocational and supported employment.
- (g) **Waiver of requirements—** The [Secretary](/usc/42/1301.md?p=a-6) may waive such provisions of this subchapter as necessary to carry out the provisions of this section [including](/usc/42/1301.md?p=b) the following requirements of this subchapter—
  - (1) comparability of amount, duration, and scope of services; and
  - (2) statewideness.
- (h) **Minimum protections—**
  - (1) **Publication of interim and final requirements—**
    - (A) **In general—** The [Secretary](/usc/42/1301.md?p=a-6) shall publish, by July 1, 1991, a regulation (that shall be effective on an interim basis pending the promulgation of final regulations), and by October 1, 1992, a final regulation, that sets forth interim and final requirements, respectively, consistent with [subparagraph (B)](#h-1-B), to protect the health, safety, and welfare of individuals receiving community supported living arrangements services.
    - (B) **Minimum protections—** Interim and final requirements under [subparagraph (A)](#h-1-A) shall assure, through methods other than reliance on [State](/usc/42/1396b.md?p=w-7-D) licensure processes or the [State](/usc/42/1396b.md?p=w-7-D) quality assurance [programs](/usc/42/274l–1.md?p=4) under [subsection (d)](#d), that—
      - (i) individuals receiving community supported living arrangements services are protected from [neglect](/usc/42/1397j.md?p=16), physical and sexual [abuse](/usc/42/1397j.md?p=1), and financial [exploitation](/usc/42/1397j.md?p=8);
      - (ii) a provider of community supported living arrangements services may not use individuals who have been convicted of [child](/usc/42/416.md?p=e) or client [abuse](/usc/42/1397j.md?p=1), [neglect](/usc/42/1397j.md?p=16), or mistreatment or of a felony involving physical harm to an individual and shall take all reasonable steps to determine whether applicants for employment by the provider have histories indicating involvement in [child](/usc/42/416.md?p=e) or client [abuse](/usc/42/1397j.md?p=1), [neglect](/usc/42/1397j.md?p=16), or mistreatment or a criminal record involving physical harm to an individual;
      - (iii) individuals or entities delivering such services are not unjustly enriched as a result of abusive financial arrangements (such as [owner](/usc/42/13641.md?p=4) lease-backs); and
      - (iv) individuals or entities delivering such services to clients, or relatives of such individuals, are prohibited from being named beneficiaries of life insurance policies purchased by (or on behalf of) such clients.
  - (2) **Specified remedies—** If the [Secretary](/usc/42/1301.md?p=a-6) finds that a provider has not met an applicable requirement under [subsection (h)](#h), the [Secretary](/usc/42/1301.md?p=a-6) shall impose a civil money penalty in an amount not to exceed $10,000 for each day of noncompliance. The provisions of [section 1320a–7a of this title](/usc/42/1320a–7a.md) (other than subsections [(a)](#a) and [(b)](#b)) shall apply to a civil money penalty under the previous sentence in the same manner as such provisions apply to a penalty or proceeding under [section 1320a–7a(a) of this title](/usc/42/1320a–7a.md?p=a).
- (i) **Treatment of funds—** Any [funds](/usc/42/12854.md?p=3) expended under this section for medical assistance shall be in addition to [funds](/usc/42/12854.md?p=3) expended for any existing services covered under the [State](/usc/42/1396b.md?p=w-7-D) plan, [including](/usc/42/1301.md?p=b) any waiver services for which an individual receiving services under this [program](/usc/42/274l–1.md?p=4) is already eligible.
- (j) **Limitation on amounts of expenditures as medical assistance—** The amount of [funds](/usc/42/12854.md?p=3) that may be expended as medical assistance to carry out the purposes of this section shall be for fiscal year 1991, $5,000,000, for fiscal year 1992, $10,000,000, for fiscal year 1993, $20,000,000, for fiscal year 1994, $30,000,000, for fiscal year 1995, $35,000,000, and for fiscal years thereafter such sums as provided by Congress.

# §1396u–1. Assuring coverage for certain low-income families

- (a) **References to subchapter IV–A are references to pre-welfare-reform provisions—** Subject to the succeeding provisions of this section, with respect to a [State](/usc/42/1396b.md?p=w-7-D) any reference in this subchapter (or any other provision of law in relation to the operation of this subchapter) to a provision of part A of subchapter IV, or a [State](/usc/42/1396b.md?p=w-7-D) plan under such part (or a provision of such a plan), [including](/usc/42/1301.md?p=b) [income](/usc/42/292s.md?p=c-4) and resource [standards](/usc/42/1320d.md?p=7) and [income](/usc/42/292s.md?p=c-4) and resource methodologies under such part or plan, shall be considered a reference to such a provision or plan as in effect as of July 16, 1996, with respect to the [State](/usc/42/1396b.md?p=w-7-D).
- (b) **Application of pre-welfare-reform eligibility criteria—**
  - (1) **In general—** For purposes of this subchapter, subject to paragraphs [(2)](#b-2) and [(3)](#b-3), in determining eligibility for medical assistance—
    - (A) an individual shall be treated as receiving aid or assistance under a [State](/usc/42/1396b.md?p=w-7-D) plan approved under part A of subchapter IV only if the individual meets—
      - (i) the [income](/usc/42/292s.md?p=c-4) and resource [standards](/usc/42/1320d.md?p=7) for determining eligibility under such plan, and
      - (ii) the eligibility requirements of such plan under subsections (a) through (c) of [section 606 of this title](/usc/42/606.md) and [section 607(a) of this title](/usc/42/607.md?p=a),

      as in effect as of July 16, 1996; and

    - (B) the [income](/usc/42/292s.md?p=c-4) and resource methodologies under such plan as of such date shall be used in the determination of whether any individual meets [income](/usc/42/292s.md?p=c-4) and resource [standards](/usc/42/1320d.md?p=7) under such plan.
  - (2) **State option—** For purposes of applying this section, a [State](/usc/42/1396b.md?p=w-7-D)—
    - (A) may lower its [income](/usc/42/292s.md?p=c-4) [standards](/usc/42/1320d.md?p=7) applicable with respect to part A of subchapter IV, but not below the [income](/usc/42/292s.md?p=c-4) [standards](/usc/42/1320d.md?p=7) applicable under its [State](/usc/42/1396b.md?p=w-7-D) plan under such part on May 1, 1988;
    - (B) may increase [income](/usc/42/292s.md?p=c-4) or resource [standards](/usc/42/1320d.md?p=7) under the [State](/usc/42/1396b.md?p=w-7-D) plan referred to in [paragraph (1)](#b-1) over a period (beginning after July 16, 1996) by a percentage that does not exceed the percentage increase in the Consumer Price Index for all urban consumers (all items; [United States](/usc/42/1301.md?p=a-2) [city](/usc/42/12902.md?p=11) average) over such period; and
    - (C) may use [income](/usc/42/292s.md?p=c-4) and resource methodologies that are less restrictive than the methodologies used under the [State](/usc/42/1396b.md?p=w-7-D) plan under such part as of July 16, 1996.
  - (3) **Option to terminate medical assistance for failure to meet work requirement—**
    - (A) **Individuals receiving cash assistance under TANF—** In the case of an individual who—
      - (i) is receiving cash assistance under a [State](/usc/42/1396b.md?p=w-7-D) [program](/usc/42/274l–1.md?p=4) funded under part A of subchapter IV,
      - (ii) is eligible for medical assistance under this subchapter on a basis not related to [section 1396a(l)](/usc/42/1396a.md?p=l) of this title, and
      - (iii) has the cash assistance under such [program](/usc/42/274l–1.md?p=4) terminated pursuant to [section 607(e)(1)(B) of this title](/usc/42/607.md?p=e-1-B) (as in effect on or after the [welfare reform effective date](#i)) because of refusing to work,

      the [State](/usc/42/1396b.md?p=w-7-D) may terminate such individual’s eligibility for medical assistance under this subchapter until such time as there no longer is a basis for the termination of such cash assistance because of such refusal.

    - (B) **Exception for children—** [Subparagraph (A)](#b-3-A) shall not be construed as permitting a [State](/usc/42/1396b.md?p=w-7-D) to terminate medical assistance for a minor [child](/usc/42/416.md?p=e) who is not the head of a household receiving assistance under a [State](/usc/42/1396b.md?p=w-7-D) [program](/usc/42/274l–1.md?p=4) funded under part A of subchapter IV.
- (c) **Treatment for purposes of transitional coverage provisions—**
  - (1) **Transition in the case of child support collections—** The provisions of [section 606(h) of this title](/usc/42/606.md) (as in effect on July 16, 1996) shall apply, in relation to this subchapter, with respect to individuals (and [families](/usc/42/12704.md?p=11) composed of individuals) who are described in [subsection (b)(1)(A)](#b-1-A), in the same manner as they applied before such date with respect to individuals who became ineligible for aid to [families](/usc/42/12704.md?p=11) with dependent [children](/usc/42/256e.md?p=g-2) as a result (wholly or partly) of the collection of [child](/usc/42/416.md?p=e) or spousal support under part D of subchapter IV.
  - (2) **Transition in the case of earnings from employment—** For continued medical assistance in the case of individuals (and [families](/usc/42/12704.md?p=11) composed of individuals) described in [subsection (b)(1)(A)](#b-1-A) who would otherwise become ineligible because of hours or [income](/usc/42/292s.md?p=c-4) from employment, see sections [1396r–6](/usc/42/1396r–6.md) and [1396a(e)(1)](/usc/42/1396a.md?p=e-1) of this title.
- (d) **Waivers—** In the case of a waiver of a provision of part A of subchapter IV in effect with respect to a [State](/usc/42/1396b.md?p=w-7-D) as of July 16, 1996, or which is submitted to the [Secretary](/usc/42/1301.md?p=a-6) before August 22, 1996, and approved by the [Secretary](/usc/42/1301.md?p=a-6) on or before July 1, 1997, if the waiver affects eligibility of individuals for medical assistance under this subchapter, such waiver may (but need not) continue to be applied, at the option of the [State](/usc/42/1396b.md?p=w-7-D), in relation to this subchapter after the date the waiver would otherwise expire.
- (e) **State option to use 1 application form—** Nothing in this section, or part A of subchapter IV, shall be construed as preventing a [State](/usc/42/1396b.md?p=w-7-D) from providing for the same application form for assistance under a [State](/usc/42/1396b.md?p=w-7-D) [program](/usc/42/274l–1.md?p=4) funded under part A of subchapter IV (on or after the [welfare reform effective date](#i)) and for medical assistance under this subchapter.
- (f) **Additional rules of construction—**
  - (1) With respect to the reference in [section 1396a(a)(5) of this title](/usc/42/1396a.md?p=a-5) to a [State](/usc/42/1396b.md?p=w-7-D) plan approved under part A of subchapter IV, a [State](/usc/42/1396b.md?p=w-7-D) may treat such reference as a reference either to a [State](/usc/42/1396b.md?p=w-7-D) [program](/usc/42/274l–1.md?p=4) funded under such part (as in effect on and after the [welfare reform effective date](#i)) or to the [State](/usc/42/1396b.md?p=w-7-D) plan under this subchapter.
  - (2) Any reference in [section 1396a(a)(55) of this title](/usc/42/1396a.md?p=a-55) to a [State](/usc/42/1396b.md?p=w-7-D) plan approved under part A of subchapter IV shall be deemed a reference to a [State](/usc/42/1396b.md?p=w-7-D) [program](/usc/42/274l–1.md?p=4) funded under such part.
  - (3) In applying [section 1396b(f) of this title](/usc/42/1396b.md?p=f), the applicable [income](/usc/42/292s.md?p=c-4) limitation otherwise determined shall be subject to increase in the same manner as [income](/usc/42/292s.md?p=c-4) or resource [standards](/usc/42/1320d.md?p=7) of a [State](/usc/42/1396b.md?p=w-7-D) may be increased under [subsection (b)(2)(B)](#b-2-B).
- (g) **Relation to other provisions—** The provisions of this section shall apply notwithstanding any other provision of this chapter.
- (h) **Transitional increased Federal matching rate for increased administrative costs—**
  - (1) **In general—** Subject to the succeeding provisions of this subsection, the [Secretary](/usc/42/1301.md?p=a-6) shall provide that with respect to administrative expenditures described in [paragraph (2)](#h-2) the per centum specified in [section 1396b(a)(7) of this title](/usc/42/1396b.md?p=a-7) shall be increased to such percentage as the [Secretary](/usc/42/1301.md?p=a-6) specifies.
  - (2) **Administrative expenditures described—** The administrative expenditures described in this paragraph are expenditures described in [section 1396b(a)(7) of this title](/usc/42/1396b.md?p=a-7) that a [State](/usc/42/1396b.md?p=w-7-D) demonstrates to the satisfaction of the [Secretary](/usc/42/1301.md?p=a-6) are attributable to administrative costs of eligibility determinations that (but for the enactment of this section) would not be incurred.
  - (3) **Limitation—** The total amount of additional Federal [funds](/usc/42/12854.md?p=3) that are expended as a result of the application of this subsection for the period beginning with fiscal year 1997 shall not exceed $500,000,000. In applying this paragraph, the [Secretary](/usc/42/1301.md?p=a-6) shall ensure the equitable distribution of additional [funds](/usc/42/12854.md?p=3) among the [States](/usc/42/1396b.md?p=w-7-D).
- (i) **Welfare reform effective date—** In this section, the term “welfare reform effective date” means the effective date, with respect to a [State](/usc/42/1396b.md?p=w-7-D), of title I of the Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (as specified in section 116 of such Act).

# §1396u–2. Provisions relating to managed care

- (a) **State option to use managed care—**
  - (1) **Use of medicaid managed care organizations and primary care case managers—**
    - (A) **In general—** Subject to the succeeding provisions of this section, and notwithstanding paragraph (1), (10)(B), or (23)(A) of [section 1396a(a) of this title](/usc/42/1396a.md?p=a), a [State](/usc/42/1396b.md?p=w-7-D)—
      - (i) may require an individual who is eligible for medical assistance under the [State](/usc/42/1396b.md?p=w-7-D) plan under this subchapter to enroll with a [managed care entity](#a-1-B) as a condition of receiving such assistance (and, with respect to assistance furnished by or under arrangements with such entity, to receive such assistance through the entity), if—
        - (I) the entity and the contract with the [State](/usc/42/1396b.md?p=w-7-D) meet the applicable requirements of this section and [section 1396b(m) of this title](/usc/42/1396b.md?p=m) or [section 1396d(t) of this title](/usc/42/1396d.md?p=t), and
        - (II) the requirements described in the succeeding paragraphs of this subsection are met; and
      - (ii) may restrict the number of provider [agreements](/usc/42/1320b–8.md?p=a-3-A) with [managed care entities](#a-1-B) under the [State](/usc/42/1396b.md?p=w-7-D) plan if such restriction does not substantially impair access to services.
    - (B) **“Managed care entity” defined—** In this section, the term “managed care entity” means—
      - (i) a [medicaid managed care organization](/usc/42/1396b.md?p=m-1-A), as defined in [section 1396b(m)(1)(A) of this title](/usc/42/1396b.md?p=m-1-A), that provides or arranges for services for enrollees under a contract pursuant to [section 1396b(m) of this title](/usc/42/1396b.md?p=m); and
      - (ii) a [primary care case manager](/usc/42/1396d.md?p=t-2), as defined in [section 1396d(t)(2) of this title](/usc/42/1396d.md?p=t-2).
  - (2) **Special rules—**
    - (A) **Exemption of certain children with special needs—** A [State](/usc/42/1396b.md?p=w-7-D) may not require under [paragraph (1)](#a-1) the enrollment in a [managed care entity](#a-1-B) of an individual under 19 years of age who—
      - (i) is eligible for supplemental security [income](/usc/42/292s.md?p=c-4) under subchapter XVI;
      - (ii) is described in [section 701(a)(1)(D) of this title](/usc/42/701.md?p=a-1-D);
      - (iii) is described in [section 1396a(e)(3) of this title](/usc/42/1396a.md?p=e-3);
      - (iv) is receiving foster care or adoption assistance under part E of subchapter IV; or
      - (v) is in foster care or otherwise in an out-of-home placement.
    - (B) **Exemption of medicare beneficiaries—** A [State](/usc/42/1396b.md?p=w-7-D) may not require under [paragraph (1)](#a-1) the enrollment in a [managed care entity](#a-1-B) of an individual who is a [qualified medicare beneficiary](/usc/42/1396d.md?p=p-1) (as defined in [section 1396d(p)(1) of this title](/usc/42/1396d.md?p=p-1)) or an individual otherwise eligible for benefits under subchapter XVIII.
    - (C) **Indian enrollment—** A [State](/usc/42/1396b.md?p=w-7-D) may not require under [paragraph (1)](#a-1) the enrollment in a [managed care entity](#a-1-B) of an individual who is an [Indian](/usc/42/6862.md?p=6) (as defined in [section 4(c)](/usc/42/4.md)[^1] of the [Indian](/usc/42/6862.md?p=6) Health Care Improvement Act of 1976 ([25 U.S.C. 1603(c)](/usc/25/1603.md)) unless the entity is one of the following (and only if such entity is participating under the plan):
      - (i) The [Indian](/usc/42/6862.md?p=6) Health Service.
      - (ii) An [Indian](/usc/42/6862.md?p=6) health [program](/usc/42/274l–1.md?p=4) operated by an [Indian tribe](/usc/42/1397j.md?p=12-A) or [tribal organization](/usc/42/629a.md?p=a-6) pursuant to a contract, [grant](/usc/42/1397j.md?p=10), cooperative [agreement](/usc/42/1320b–8.md?p=a-3-A), or [compact](/usc/42/2021b.md?p=4) with the [Indian](/usc/42/6862.md?p=6) Health Service pursuant to the [Indian](/usc/42/6862.md?p=6) Self-Determination Act [[25 U.S.C. 5321](/usc/25/5321.md) et seq.].
      - (iii) An urban [Indian](/usc/42/6862.md?p=6) health [program](/usc/42/274l–1.md?p=4) operated by an urban [Indian](/usc/42/6862.md?p=6) organization pursuant to a [grant](/usc/42/1397j.md?p=10) or contract with the [Indian](/usc/42/6862.md?p=6) Health Service pursuant to title V of the [Indian](/usc/42/6862.md?p=6) Health Care Improvement Act [[25 U.S.C. 1651](/usc/25/1651.md) et seq.].
  - (3) **Choice of coverage—**
    - (A) **In general—** A [State](/usc/42/1396b.md?p=w-7-D) must permit an individual to choose a [managed care entity](#a-1-B) from not less than two such entities that meet the applicable requirements of this section, and of [section 1396b(m) of this title](/usc/42/1396b.md?p=m) or [section 1396d(t) of this title](/usc/42/1396d.md?p=t).
    - (B) **State option—** At the option of the [State](/usc/42/1396b.md?p=w-7-D), a [State](/usc/42/1396b.md?p=w-7-D) shall be considered to meet the requirements of [subparagraph (A)](#a-3-A) in the case of an individual residing in a rural area, if the [State](/usc/42/1396b.md?p=w-7-D) requires the individual to enroll with a [managed care entity](#a-1-B) if such entity—
      - (i) permits the individual to receive such assistance through not less than two [physicians](/usc/42/1396d.md?p=e) or case managers (to the extent that at least two [physicians](/usc/42/1396d.md?p=e) or case managers are available to provide such assistance in the area), and
      - (ii) permits the individual to obtain such assistance from any other provider in appropriate circumstances (as established by the [State](/usc/42/1396b.md?p=w-7-D) under regulations of the [Secretary](/usc/42/1301.md?p=a-6)).
    - (C) **Treatment of certain county-operated health insuring organizations—** A [State](/usc/42/1396b.md?p=w-7-D) shall be considered to meet the requirement of [subparagraph (A)](#a-3-A) if—
      - (i) the [managed care entity](#a-1-B) in which the individual is enrolled is a health-insuring organization which—
        - (I) first became operational prior to January 1, 1986, or
        - (II) is described in section 9517(c)(3) of the Omnibus Budget Reconciliation Act of 1985 (as added by section 4734(2) of the Omnibus Budget Reconciliation Act of 1990), and
      - (ii) the individual is given a choice between at least two providers within such entity.
  - (4) **Process for enrollment and termination and change of enrollment—** As conditions under [paragraph (1)(A)](#a-1-A)—
    - (A) **In general—** The [State](/usc/42/1396b.md?p=w-7-D), enrollment broker (if any), and [managed care entity](#a-1-B) shall permit an individual eligible for medical assistance under the [State](/usc/42/1396b.md?p=w-7-D) plan under this subchapter who is enrolled with the entity under this subchapter to terminate (or change) such enrollment—
      - (i) for [cause](/usc/42/9908.md?p=c-2) at any time (consistent with [section 1396b(m)(2)(A)(vi) of this title](/usc/42/1396b.md?p=m-2-A-vi)), and
      - (ii) without [cause](/usc/42/9908.md?p=c-2)—
        - (I) during the 90-day period beginning on the date the individual receives notice of such enrollment, and
        - (II) at least every 12 months thereafter.
    - (B) **Notice of termination rights—** The [State](/usc/42/1396b.md?p=w-7-D) shall provide for notice to each such individual of the opportunity to terminate (or change) enrollment under such conditions. Such notice shall be provided at least 60 days before each annual enrollment opportunity described in [subparagraph (A)(ii)(II)](#a-4-A-ii-II).
    - (C) **Enrollment priorities—** In carrying out [paragraph (1)(A)](#a-1-A), the [State](/usc/42/1396b.md?p=w-7-D) shall establish a method for establishing enrollment priorities in the case of a [managed care entity](#a-1-B) that does not have sufficient capacity to enroll all such individuals seeking enrollment under which individuals already enrolled with the entity are given priority in continuing enrollment with the entity.
    - (D) **Default enrollment process—** In carrying out [paragraph (1)(A)](#a-1-A), the [State](/usc/42/1396b.md?p=w-7-D) shall establish a default enrollment process—
      - (i) under which any such individual who does not enroll with a [managed care entity](#a-1-B) during the enrollment period specified by the [State](/usc/42/1396b.md?p=w-7-D) shall be enrolled by the [State](/usc/42/1396b.md?p=w-7-D) with such an entity which has not been found to be out of substantial compliance with the applicable requirements of this section and of [section 1396b(m) of this title](/usc/42/1396b.md?p=m) or [section 1396d(t) of this title](/usc/42/1396d.md?p=t); and
      - (ii) that takes into consideration—
        - (I) maintaining existing provider-individual relationships or relationships with providers that have traditionally served beneficiaries under this subchapter; and
        - (II) if maintaining such provider relationships is not possible, the equitable distribution of such individuals among qualified [managed care entities](#a-1-B) available to enroll such individuals, consistent with the enrollment capacities of the entities.
  - (5) **Provision of information—**
    - (A) **Information in easily understood form—** Each [State](/usc/42/1396b.md?p=w-7-D), enrollment broker, or [managed care entity](#a-1-B) shall provide all enrollment notices and informational and instructional materials relating to such an entity under this subchapter in a manner and form which may be easily understood by enrollees and potential enrollees of the entity who are eligible for medical assistance under the [State](/usc/42/1396b.md?p=w-7-D) plan under this subchapter.
    - (B) **Information to enrollees and potential enrollees—** Each [managed care entity](#a-1-B) that is a [medicaid managed care organization](/usc/42/1396b.md?p=m-1-A) shall, upon request, make available to enrollees and potential enrollees in the organization’s service area information concerning the following:
      - (i) **Providers—** The identity, locations, qualifications, and availability of [health care providers](/usc/42/300jj.md?p=3) that participate with the organization, [including](/usc/42/1301.md?p=b) as required by [subparagraph (E)](#a-5-E).
      - (ii) **Enrollee rights and responsibilities—** The rights and responsibilities of enrollees.
      - (iii) **Grievance and appeal procedures—** The procedures available to an enrollee and a [health care provider](/usc/42/300jj.md?p=3) to challenge or appeal the failure of the organization to cover a service.
      - (iv) **Information on covered items and services—** All items and services that are available to enrollees under the contract between the [State](/usc/42/1396b.md?p=w-7-D) and the organization that are covered either directly or through a method of referral and prior [authorization](/usc/42/4370m.md?p=3). Each [managed care entity](#a-1-B) that is a [primary care case manager](/usc/42/1396d.md?p=t-2) shall, upon request, make available to enrollees and potential enrollees in the organization’s service area the information described in [clause (iii)](#a-5-B-iii).
    - (C) **Comparative information—** A [State](/usc/42/1396b.md?p=w-7-D) that requires individuals to enroll with [managed care entities](#a-1-B) under [paragraph (1)(A)](#a-1-A) shall annually (and upon request) provide, directly or through the [managed care entity](#a-1-B), to such individuals a list identifying the [managed care entities](#a-1-B) that are (or will be) available and information (presented in a comparative, chart-like form) relating to the following for each such entity offered:
      - (i) **Benefits and cost-sharing—** The benefits covered and [cost-sharing](/usc/42/18022.md?p=c-3-A) imposed by the entity.
      - (ii) **Service area—** The service area of the entity.
      - (iii) **Quality and performance—** To the extent available, quality and performance indicators for the benefits under the entity.
    - (D) **Information on benefits not covered under managed care arrangement—** A [State](/usc/42/1396b.md?p=w-7-D), directly or through [managed care entities](#a-1-B), shall, on or before an individual enrolls with such an entity under this subchapter, inform the enrollee in a written and prominent manner of any benefits to which the enrollee may be entitled to under this subchapter but which are not made available to the enrollee through the entity. Such information shall include information on where and how such enrollees may access benefits not made available to the enrollee through the entity.
    - (E) **Provider directories—**
      - (i) **In general—** Each managed care organization, prepaid inpatient [health plan](/usc/42/300jj.md?p=6) (as defined by the [Secretary](/usc/42/1301.md?p=a-6)), prepaid ambulatory [health plan](/usc/42/300jj.md?p=6) (as defined by the [Secretary](/usc/42/1301.md?p=a-6)), and, when appropriate, primary care case management entity (as defined by the [Secretary](/usc/42/1301.md?p=a-6)) with a contract with a [State](/usc/42/1396b.md?p=w-7-D) to enroll individuals who are eligible for medical assistance under the [State](/usc/42/1396b.md?p=w-7-D) plan under this subchapter or under a waiver of such plan, shall publish (and update on at least a quarterly basis or more frequently as required by the [Secretary](/usc/42/1301.md?p=a-6)) on a public website, a searchable directory of [network providers](#a-5-E-ii), which shall include [physicians](/usc/42/1396d.md?p=e), [hospitals](/usc/42/1395dd.md?p=e-5), pharmacies, providers of mental health services, providers of [substance use disorder services](/usc/42/290cc–34.md?p=4), providers of long term services and supports as appropriate, and such other providers as required by the [Secretary](/usc/42/1301.md?p=a-6), and that [includes](/usc/42/1301.md?p=b) with respect to each such provider—
        - (I) the name of the provider;
        - (II) the specialty of the provider;
        - (III) the address at which the provider provides services;
        - (IV) the telephone number of the provider; and
        - (V) information regarding—
          - (aa) the provider’s cultural and linguistic capabilities, [including](/usc/42/1301.md?p=b) languages ([including](/usc/42/1301.md?p=b) American Sign Language) offered by the provider or by a skilled medical interpreter who provides interpretation services at the provider’s [office](/usc/42/3058f.md?p=1);
          - (bb) whether the provider is accepting as new patients, individuals who receive medical assistance under this subchapter;
          - (cc) whether the provider’s [office](/usc/42/3058f.md?p=1) or [facility](/usc/42/11049.md?p=4) has accommodations for individuals with physical disabilities, [including](/usc/42/1301.md?p=b) [offices](/usc/42/3058f.md?p=1), exam rooms, and equipment;
          - (dd) the Internet website of such provider, if applicable; and
          - (ee) whether the provider offers covered services via telehealth; and
        - (VI) other relevant information, as required by the [Secretary](/usc/42/1301.md?p=a-6).
      - (ii) **Network provider defined—** In this subparagraph, the term “network provider” [includes](/usc/42/1301.md?p=b) any provider, group of providers, or entity that has a network provider [agreement](/usc/42/1320b–8.md?p=a-3-A) with a managed care organization, a prepaid inpatient [health plan](/usc/42/300jj.md?p=6) (as defined by the [Secretary](/usc/42/1301.md?p=a-6)), a prepaid ambulatory [health plan](/usc/42/300jj.md?p=6) (as defined by the [Secretary](/usc/42/1301.md?p=a-6)), or a primary care case management entity (as defined by the [Secretary](/usc/42/1301.md?p=a-6)) or a subcontractor of any such entity or plan, and receives payment under this subchapter directly or indirectly to order, refer, or render covered services as a result of the [State](/usc/42/1396b.md?p=w-7-D)’s contract with the entity or plan. For purposes of this subparagraph, a network provider shall not be considered to be a subcontractor by virtue of the network provider [agreement](/usc/42/1320b–8.md?p=a-3-A).
- (b) **Beneficiary protections—**
  - (1) **Specification of benefits—** Each contract with a [managed care entity](#a-1-B) under [section 1396b(m) of this title](/usc/42/1396b.md?p=m) or under [section 1396d(t)(3) of this title](/usc/42/1396d.md?p=t-3) shall specify the benefits the provision (or arrangement) for which the entity is responsible.
  - (2) **Assuring coverage to emergency services—**
    - (A) **In general—** Each contract with a [medicaid managed care organization](/usc/42/1396b.md?p=m-1-A) under [section 1396b(m) of this title](/usc/42/1396b.md?p=m) and each contract with a [primary care case manager](/usc/42/1396d.md?p=t-2) under [section 1396d(t)(3) of this title](/usc/42/1396d.md?p=t-3) shall require the organization or manager—
      - (i) to provide coverage for [emergency services](#b-2-B) (as defined in [subparagraph (B)](#b-2-B)) without regard to prior [authorization](/usc/42/4370m.md?p=3) or the emergency care provider’s [contractual relationship](/usc/42/9601.md?p=35-A) with the organization or manager, and
      - (ii) to comply with guidelines established under [section 1395w–22(d)(2) of this title](/usc/42/1395w–22.md?p=d-2) (respecting coordination of post-stabilization care) in the same manner as such guidelines apply to [Medicare+Choice plans](/usc/42/1395w–28.md?p=b-1) offered under part C of subchapter XVIII.

      The requirement under [clause (ii)](#b-2-A-ii) shall first apply 30 days after the date of promulgation of the guidelines referred to in such clause.

    - (B) **“Emergency services” defined—** In [subparagraph (A)(i)](#b-2-A-i), the term “emergency services” means, with respect to an individual enrolled with an organization, covered inpatient and outpatient services that—
      - (i) are furnished by a provider that is qualified to furnish such services under this subchapter, and
      - (ii) are needed to evaluate or stabilize an [emergency medical condition](#b-2-C) (as defined in [subparagraph (C)](#b-2-C)).
    - (C) **“Emergency medical condition” defined—** In [subparagraph (B)(ii)](#b-2-B-ii), the term “emergency medical condition” means a medical condition manifesting itself by acute symptoms of sufficient severity ([including](/usc/42/1301.md?p=b) severe pain) such that a prudent layperson, who possesses an average knowledge of health and medicine, could reasonably expect the absence of immediate medical attention to result in—
      - (i) placing the health of the individual (or, with respect to a pregnant woman, the health of the woman or her unborn [child](/usc/42/416.md?p=e)) in serious jeopardy,
      - (ii) serious impairment to bodily functions, or
      - (iii) serious dysfunction of any bodily [organ](/usc/42/274b.md?p=d-2) or part.
    - (D) **Emergency services furnished by non-contract providers—** Any provider of [emergency services](#b-2-B) that does not have in effect a contract with a [Medicaid](/usc/42/1396b.md?p=w-3-E-iii-III-aa) [managed care entity](#a-1-B) that establishes payment amounts for services furnished to a beneficiary enrolled in the entity’s [Medicaid](/usc/42/1396b.md?p=w-3-E-iii-III-aa) managed care plan must accept as payment in full no more than the amounts (less any payments for indirect costs of medical education and direct costs of graduate medical education) that it could collect if the beneficiary received medical assistance under this subchapter other than through enrollment in such an entity. In a [State](/usc/42/1396b.md?p=w-7-D) where rates paid to [hospitals](/usc/42/1395dd.md?p=e-5) under the [State](/usc/42/1396b.md?p=w-7-D) plan are negotiated by contract and not publicly released, the payment amount applicable under this subparagraph shall be the average contract rate that would apply under the [State](/usc/42/1396b.md?p=w-7-D) plan for general acute care [hospitals](/usc/42/1395dd.md?p=e-5) or the average contract rate that would apply under such plan for tertiary [hospitals](/usc/42/1395dd.md?p=e-5).
  - (3) **Protection of enrollee-provider communications—**
    - (A) **In general—** Subject to subparagraphs [(B)](#b-3-B) and [(C)](#b-3-C), under a contract under [section 1396b(m) of this title](/usc/42/1396b.md?p=m) a [medicaid managed care organization](/usc/42/1396b.md?p=m-1-A) (in relation to an individual enrolled under the contract) shall not prohibit or otherwise restrict a covered [health care professional](#b-3-C) (as defined in subparagraph (D)) from advising such an individual who is a patient of the professional about the health status of the individual or [medical care](/usc/42/1301.md?p=a-7) or [treatment](/usc/42/11851.md?p=11) for the individual’s condition or disease, regardless of whether benefits for such care or [treatment](/usc/42/11851.md?p=11) are provided under the contract, if the professional is acting within the lawful scope of practice.
    - (B) **Construction—** [Subparagraph (A)](#b-3-A) shall not be construed as requiring a [medicaid managed care organization](/usc/42/1396b.md?p=m-1-A) to provide, reimburse for, or provide coverage of, a counseling or referral service if the organization—
      - (i) objects to the provision of such service on moral or religious grounds; and
      - (ii) in the manner and through the written instrumentalities such organization deems appropriate, makes available information on its policies regarding such service to prospective enrollees before or during enrollment and to enrollees within 90 days after the date that the organization adopts a change in policy regarding such a counseling or referral service.

      Nothing in this subparagraph shall be construed to affect disclosure requirements under [State](/usc/42/1396b.md?p=w-7-D) law or under the [Employee](/usc/42/1320a–7h.md?p=e-7) Retirement [Income](/usc/42/292s.md?p=c-4) Security Act of 1974 [[29 U.S.C. 1001](/usc/29/1001.md) et seq.].

    - (C) **“Health care professional” defined—** For purposes of this paragraph, the term “health care professional” means a [physician](/usc/42/1301.md?p=a-7) (as defined in [section 1395x(r) of this title](/usc/42/1395x.md?p=r)) or other health care professional if coverage for the professional’s services is provided under the contract referred to in [subparagraph (A)](#b-3-A) for the services of the professional. Such term [includes](/usc/42/1301.md?p=b) a podiatrist, optometrist, chiropractor, psychologist, dentist, [physician](/usc/42/1301.md?p=a-7) assistant, physical or occupational therapist and therapy assistant, speech-language pathologist, audiologist, registered or licensed practical nurse ([including](/usc/42/1301.md?p=b) nurse [practitioner](/usc/42/1395a.md?p=b-6-C), clinical nurse specialist, certified registered nurse anesthetist, and certified nurse-midwife), licensed certified [social](/usc/42/1397j.md?p=20) worker, registered respiratory therapist, and certified respiratory therapy technician.
  - (4) **Grievance procedures—** Each [medicaid managed care organization](/usc/42/1396b.md?p=m-1-A) shall establish an internal grievance procedure under which an enrollee who is eligible for medical assistance under the [State](/usc/42/1396b.md?p=w-7-D) plan under this subchapter, or a provider on behalf of such an enrollee, may challenge the denial of coverage of or payment for such assistance.
  - (5) **Demonstration of adequate capacity and services—** Each [medicaid managed care organization](/usc/42/1396b.md?p=m-1-A) shall provide the [State](/usc/42/1396b.md?p=w-7-D) and the [Secretary](/usc/42/1301.md?p=a-6) with adequate assurances (in a time and manner determined by the [Secretary](/usc/42/1301.md?p=a-6)) that the organization, with respect to a service area, has the capacity to serve the expected enrollment in such service area, [including](/usc/42/1301.md?p=b) assurances that the organization—
    - (A) offers an appropriate range of services and access to preventive and primary care services for the population expected to be enrolled in such service area, and
    - (B) maintains a sufficient number, mix, and geographic distribution of providers of services.
  - (6) **Protecting enrollees against liability for payment—** Each [medicaid managed care organization](/usc/42/1396b.md?p=m-1-A) shall provide that an individual eligible for medical assistance under the [State](/usc/42/1396b.md?p=w-7-D) plan under this subchapter who is enrolled with the organization may not be held liable—
    - (A) for the debts of the organization, in the event of the organization’s insolvency,
    - (B) for services provided to the individual—
      - (i) in the event of the organization failing to receive payment from the [State](/usc/42/1396b.md?p=w-7-D) for such services; or
      - (ii) in the event of a [health care provider](/usc/42/300jj.md?p=3) with a contractual, referral, or other arrangement with the organization failing to receive payment from the [State](/usc/42/1396b.md?p=w-7-D) or the organization for such services, or
    - (C) for payments to a provider that furnishes covered services under a contractual, referral, or other arrangement with the organization in excess of the amount that would be owed by the individual if the organization had directly provided the services.
  - (7) **Antidiscrimination—** A [medicaid managed care organization](/usc/42/1396b.md?p=m-1-A) shall not discriminate with respect to participation, reimbursement, or indemnification as to any provider who is acting within the scope of the provider’s license or certification under applicable [State](/usc/42/1396b.md?p=w-7-D) law, solely on the basis of such license or certification. This paragraph shall not be construed to prohibit an organization from [including](/usc/42/1301.md?p=b) providers only to the extent necessary to meet the needs of the organization’s enrollees or from establishing any measure designed to maintain quality and control costs consistent with the responsibilities of the organization.
  - (8) **Compliance with certain maternity and mental health requirements—** Each [medicaid managed care organization](/usc/42/1396b.md?p=m-1-A) shall comply with the requirements of subpart 2 of part A of title XXVII of the Public Health Service Act[^1] insofar as such requirements apply and are effective with respect to a [health insurance issuer](/usc/42/18021.md?p=b-2) that offers [group health insurance coverage](/usc/42/1397jj.md?p=c-3). In applying the previous sentence with respect to requirements under paragraph (8) of [section 300gg–26(a) of this title](/usc/42/300gg–26.md?p=a), a [Medicaid managed care organization](/usc/42/1396b.md?p=m-1-A) (or a prepaid inpatient [health plan](/usc/42/300jj.md?p=6) (as defined by the [Secretary](/usc/42/1301.md?p=a-6)) or prepaid ambulatory [health plan](/usc/42/300jj.md?p=6) (as defined by the [Secretary](/usc/42/1301.md?p=a-6)) that offers services to enrollees of a [Medicaid managed care organization](/usc/42/1396b.md?p=m-1-A)) shall be treated as in compliance with such requirements if the [Medicaid managed care organization](/usc/42/1396b.md?p=m-1-A) (or prepaid inpatient [health plan](/usc/42/300jj.md?p=6) or prepaid ambulatory [health plan](/usc/42/300jj.md?p=6)) is in compliance with [subpart K of part 438 of title 42, Code of Federal Regulations](/cfr/42/part438-subpartK.md), and section 438.3(n) of such title, or any successor regulation.
- (c) **Quality assurance standards—**
  - (1) **Quality assessment and improvement strategy—**
    - (A) **In general—** If a [State](/usc/42/1396b.md?p=w-7-D) provides for contracts with [medicaid managed care organizations](/usc/42/1396b.md?p=m-1-A) under [section 1396b(m) of this title](/usc/42/1396b.md?p=m), the [State](/usc/42/1396b.md?p=w-7-D) shall develop and implement a quality assessment and improvement strategy consistent with this paragraph. Such strategy shall include the following:
      - (i) **Access standards—** [Standards](/usc/42/1320d.md?p=7) for access to care so that covered services are available within reasonable timeframes and in a manner that ensures continuity of care and adequate primary care and specialized services capacity.
      - (ii) **Other measures—** Examination of other aspects of care and service directly related to the improvement of quality of care ([including](/usc/42/1301.md?p=b) grievance procedures and marketing and information [standards](/usc/42/1320d.md?p=7)).
      - (iii) **Monitoring procedures—** Procedures for monitoring and evaluating the quality and appropriateness of care and services to enrollees that reflect the full spectrum of populations enrolled under the contract and that [includes](/usc/42/1301.md?p=b) requirements for provision of quality assurance data to the [State](/usc/42/1396b.md?p=w-7-D) using the data and information set that the [Secretary](/usc/42/1301.md?p=a-6) has specified for use under part C of subchapter XVIII or such alternative data as the [Secretary](/usc/42/1301.md?p=a-6) approves, in consultation with the [State](/usc/42/1396b.md?p=w-7-D).
      - (iv) **Periodic review—** Regular, periodic examinations of the scope and content of the strategy.
    - (B) **Standards—** The strategy developed under [subparagraph (A)](#c-1-A) shall be consistent with [standards](/usc/42/1320d.md?p=7) that the [Secretary](/usc/42/1301.md?p=a-6) first establishes within 1 year after August 5, 1997. Such [standards](/usc/42/1320d.md?p=7) shall not preempt any [State](/usc/42/1396b.md?p=w-7-D) [standards](/usc/42/1320d.md?p=7) that are more stringent than such [standards](/usc/42/1320d.md?p=7). Guidelines relating to quality assurance that are applied under [section 1396n(b)(1) of this title](/usc/42/1396n.md?p=b-1) shall apply under this subsection until the effective date of [standards](/usc/42/1320d.md?p=7) for quality assurance established under this subparagraph.
    - (C) **Monitoring—** The [Secretary](/usc/42/1301.md?p=a-6) shall monitor the development and implementation of strategies under [subparagraph (A)](#c-1-A).
    - (D) **Consultation—** The [Secretary](/usc/42/1301.md?p=a-6) shall conduct activities under subparagraphs [(B)](#c-1-B) and [(C)](#c-1-C) in consultation with the [States](/usc/42/1396b.md?p=w-7-D).
  - (2) **External independent review of managed care activities—**
    - (A) **Review of contracts—**
      - (i) **In general—** Each contract under [section 1396b(m) of this title](/usc/42/1396b.md?p=m) with a [medicaid managed care organization](/usc/42/1396b.md?p=m-1-A) shall provide for an annual (as appropriate) external independent review conducted by a qualified independent entity of the quality outcomes and timeliness of, and access to, the items and services for which the organization is responsible under the contract. The requirement for such a review shall not apply until after the date that the [Secretary](/usc/42/1301.md?p=a-6) establishes the identification method described in [clause (ii)](#c-2-A-ii).
      - (ii) **Qualifications of reviewer—** The [Secretary](/usc/42/1301.md?p=a-6), in consultation with the [States](/usc/42/1396b.md?p=w-7-D), shall establish a method for the identification of entities that are qualified to conduct reviews under [clause (i)](#c-2-A-i).
      - (iii) **Use of protocols—** The [Secretary](/usc/42/1301.md?p=a-6), in coordination with the National [Governors](/usc/42/6372.md?p=1)’ Association, shall contract with an independent quality review organization (such as the National Committee for Quality Assurance) to develop the protocols to be used in external independent reviews conducted under this paragraph on and after January 1, 1999.
      - (iv) **Availability of results—** The results of each external independent review conducted under this subparagraph shall be available to participating [health care providers](/usc/42/300jj.md?p=3), enrollees, and potential enrollees of the organization, except that the results may not be made available in a manner that discloses the identity of any individual patient.
    - (B) **Nonduplication of accreditation—** A [State](/usc/42/1396b.md?p=w-7-D) may provide that, in the case of a [medicaid managed care organization](/usc/42/1396b.md?p=m-1-A) that is [accredited](/usc/42/300w–9.md?p=c-2) by a private independent entity (such as those described in [section 1395w–22(e)(4) of this title](/usc/42/1395w–22.md?p=e-4)) or that has an external review conducted under [section 1395w–22(e)(3) of this title](/usc/42/1395w–22.md?p=e-3), the external review activities conducted under [subparagraph (A)](#c-2-A) with respect to the organization shall not be duplicative of review activities conducted as part of the accreditation process or the external review conducted under such section.
    - (C) **Deemed compliance for medicare managed care organizations—** At the option of a [State](/usc/42/1396b.md?p=w-7-D), the requirements of [subparagraph (A)](#c-2-A) shall not apply with respect to a [medicaid managed care organization](/usc/42/1396b.md?p=m-1-A) if the organization is an eligible organization with a contract in effect under [section 1395mm of this title](/usc/42/1395mm.md) or a Medicare+ÐChoice organization with a contract in effect under part C of subchapter XVIII and the organization has had a contract in effect under [section 1396b(m) of this title](/usc/42/1396b.md?p=m) at least during the previous 2-year period.
- (d) **Protections against fraud and abuse—**
  - (1) **Prohibiting affiliations with individuals debarred by Federal agencies—**
    - (A) **In general—** A [managed care entity](#a-1-B) may not knowingly—
      - (i) have a [person](/usc/42/1301.md?p=a-3) described in [subparagraph (C)](#d-1-C) as a [director](/usc/42/5061.md?p=1), officer, partner, or [person](/usc/42/1301.md?p=a-3) with beneficial ownership of more than 5 percent of the entity’s equity, or
      - (ii) have an employment, consulting, or other [agreement](/usc/42/1320b–8.md?p=a-3-A) with a [person](/usc/42/1301.md?p=a-3) described in such subparagraph for the provision of items and services that are significant and material to the entity’s obligations under its contract with the [State](/usc/42/1396b.md?p=w-7-D).
    - (B) **Effect of noncompliance—** If a [State](/usc/42/1396b.md?p=w-7-D) finds that a [managed care entity](#a-1-B) is not in compliance with clause [(i)](#d-1-A-i) or [(ii)](#d-1-A-ii) of subparagraph (A), the [State](/usc/42/1396b.md?p=w-7-D)—
      - (i) shall notify the [Secretary](/usc/42/1301.md?p=a-6) of such noncompliance;
      - (ii) may continue an existing [agreement](/usc/42/1320b–8.md?p=a-3-A) with the entity unless the [Secretary](/usc/42/1301.md?p=a-6) (in consultation with the Inspector General of the Department of Health and Human Services) directs otherwise; and
      - (iii) may not renew or otherwise extend the duration of an existing [agreement](/usc/42/1320b–8.md?p=a-3-A) with the entity unless the [Secretary](/usc/42/1301.md?p=a-6) (in consultation with the Inspector General of the Department of Health and Human Services) provides to the [State](/usc/42/1396b.md?p=w-7-D) and to Congress a written statement describing compelling reasons that exist for renewing or extending the [agreement](/usc/42/1320b–8.md?p=a-3-A).
    - (C) **Persons described—** A [person](/usc/42/1301.md?p=a-3) is described in this subparagraph if such [person](/usc/42/1301.md?p=a-3)—
      - (i) is debarred, suspended, or otherwise excluded from participating in procurement activities under the Federal Acquisition Regulation or from participating in nonprocurement activities under regulations issued pursuant to Executive Order No. 12549 or under guidelines implementing such order; or
      - (ii) is an affiliate (as defined in such Regulation) of a [person](/usc/42/1301.md?p=a-3) described in [clause (i)](#d-1-C-i).
  - (2) **Restrictions on marketing—**
    - (A) **Distribution of materials—**
      - (i) **In general—** A [managed care entity](#a-1-B), with respect to activities under this subchapter, may not distribute directly or through any agent or independent contractor marketing materials within any [State](/usc/42/1396b.md?p=w-7-D)—
        - (I) without the prior approval of the [State](/usc/42/1396b.md?p=w-7-D), and
        - (II) that contain false or materially misleading information.

      The requirement of subclause (I) shall not apply with respect to a [State](/usc/42/1396b.md?p=w-7-D) until such date as the [Secretary](/usc/42/1301.md?p=a-6) specifies in consultation with such [State](/usc/42/1396b.md?p=w-7-D).

      - (ii) **Consultation in review of market materials—** In the process of reviewing and approving such materials, the [State](/usc/42/1396b.md?p=w-7-D) shall provide for consultation with a [medical care](/usc/42/1301.md?p=a-7) [advisory committee](/usc/42/7703.md?p=9).
    - (B) **Service market—** A [managed care entity](#a-1-B) shall distribute marketing materials to the entire service area of such entity covered under the contract under [section 1396b(m) of this title](/usc/42/1396b.md?p=m) or [section 1396d(t)(3) of this title](/usc/42/1396d.md?p=t-3).
    - (C) **Prohibition of tie-ins—** A [managed care entity](#a-1-B), or any [agency](/usc/42/1397n–12.md?p=1) of such entity, may not seek to influence an individual’s enrollment with the entity in conjunction with the sale of any other insurance.
    - (D) **Prohibiting marketing fraud—** Each [managed care entity](#a-1-B) shall comply with such procedures and conditions as the [Secretary](/usc/42/1301.md?p=a-6) prescribes in order to ensure that, before an individual is enrolled with the entity, the individual is provided accurate oral and written information sufficient to make an informed decision whether or not to enroll.
    - (E) **Prohibition of “cold-call” marketing—** Each [managed care entity](#a-1-B) shall not, directly or indirectly, conduct door-to-door, telephonic, or other “cold-call” marketing of enrollment under this subchapter.
  - (3) **State conflict-of-interest safeguards in medicaid risk contracting—** A [medicaid managed care organization](/usc/42/1396b.md?p=m-1-A) may not enter into a contract with any [State](/usc/42/1396b.md?p=w-7-D) under [section 1396b(m) of this title](/usc/42/1396b.md?p=m) unless the [State](/usc/42/1396b.md?p=w-7-D) has in effect conflict-of-interest safeguards with respect to officers and [employees](/usc/42/1320a–7h.md?p=e-7) of the [State](/usc/42/1396b.md?p=w-7-D) with responsibilities relating to contracts with such organizations or to the default enrollment process described in subsection (a)(4)(C)(ii) that are at least as effective as the Federal safeguards provided under [chapter 21](/usc/41/chstI-dB-ch21.md) of title 41, against conflicts of interest that apply with respect to Federal procurement officials with comparable responsibilities with respect to such contracts.
  - (4) **Use of unique physician identifier for participating physicians—** Each [medicaid managed care organization](/usc/42/1396b.md?p=m-1-A) shall require each [physician](/usc/42/1301.md?p=a-7) providing services to enrollees eligible for medical assistance under the [State](/usc/42/1396b.md?p=w-7-D) plan under this subchapter to have a unique identifier in accordance with the system established under [section 1320d–2(b) of this title](/usc/42/1320d–2.md?p=b).
  - (5) **Contract requirement for managed care entities—** With respect to any contract with a [managed care entity](#a-1-B) under section [1396b(m)](/usc/42/1396b.md?p=m) or [1396d(t)(3)](/usc/42/1396d.md?p=t-3) of this title (as applicable), no later than July 1, 2018, such contract shall include a provision that providers of services or [persons](/usc/42/1301.md?p=a-3) terminated (as described in [section 1396a(kk)(8) of this title](/usc/42/1396a.md?p=kk-8)) from participation under this subchapter, subchapter XVIII, or subchapter XXI shall be terminated from participating under this subchapter as a provider in any network of such entity that serves individuals eligible to receive medical assistance under this subchapter.
  - (6) **Enrollment of participating providers—**
    - (A) **In general—** Beginning not later than January 1, 2018, a [State](/usc/42/1396b.md?p=w-7-D) shall require that, in order to participate as a provider in the network of a [managed care entity](#a-1-B) that provides services to, or orders, prescribes, refers, or certifies eligibility for services for, individuals who are eligible for medical assistance under the [State](/usc/42/1396b.md?p=w-7-D) plan under this subchapter (or under a waiver of the plan) and who are enrolled with the entity, the provider is enrolled consistent with [section 1396a(kk) of this title](/usc/42/1396a.md?p=kk) with the [State agency](/usc/42/1320a–7a.md?p=i-1) administering the [State](/usc/42/1396b.md?p=w-7-D) plan under this subchapter. Such enrollment shall include providing to the [State agency](/usc/42/1320a–7a.md?p=i-1) the provider’s identifying information, [including](/usc/42/1301.md?p=b) the name, specialty, date of birth, [Social](/usc/42/1397j.md?p=20) Security number, national provider identifier, Federal taxpayer identification number, and the [State](/usc/42/1396b.md?p=w-7-D) license or certification number of the provider.
    - (B) **Rule of construction—** Nothing in [subparagraph (A)](#d-6-A) shall be construed as requiring a provider described in such subparagraph to provide services to individuals who are not enrolled with a [managed care entity](#a-1-B) under this subchapter.
- (e) **Sanctions for noncompliance—**
  - (1) **Use of intermediate sanctions by the State to enforce requirements—**
    - (A) **In general—** A [State](/usc/42/1396b.md?p=w-7-D) may not enter into or renew a contract under [section 1396b(m) of this title](/usc/42/1396b.md?p=m) unless the [State](/usc/42/1396b.md?p=w-7-D) has established intermediate sanctions, which may include any of the types described in [paragraph (2)](#e-2), other than the termination of a contract with a [medicaid managed care organization](/usc/42/1396b.md?p=m-1-A), which the [State](/usc/42/1396b.md?p=w-7-D) may impose against a [medicaid managed care organization](/usc/42/1396b.md?p=m-1-A) with such a contract, if the organization—
      - (i) fails substantially to provide medically necessary items and services that are required (under law or under such organization’s contract with the [State](/usc/42/1396b.md?p=w-7-D)) to be provided to an enrollee covered under the contract;
      - (ii) imposes premiums or charges on enrollees in excess of the premiums or charges permitted under this subchapter;
      - (iii) acts to discriminate among enrollees on the basis of their health status or requirements for health care services, [including](/usc/42/1301.md?p=b) expulsion or refusal to reenroll an individual, except as permitted by this subchapter, or engaging in any practice that would reasonably be expected to have the effect of denying or discouraging enrollment with the organization by [eligible individuals](/usc/42/239.md?p=a-6) whose medical condition or history indicates a need for substantial future medical services;
      - (iv) misrepresents or falsifies information that is furnished—
        - (I) to the [Secretary](/usc/42/1301.md?p=a-6) or the [State](/usc/42/1396b.md?p=w-7-D) under this subchapter; or
        - (II) to an enrollee, potential enrollee, or a [health care provider](/usc/42/300jj.md?p=3) under such subchapter; or
      - (v) fails to comply with the applicable requirements of [section 1396b(m)(2)(A)(x) of this title](/usc/42/1396b.md?p=m-2-A-x).

      The [State](/usc/42/1396b.md?p=w-7-D) may also impose such intermediate sanction against a [managed care entity](#a-1-B) if the [State](/usc/42/1396b.md?p=w-7-D) determines that the entity distributed directly or through any agent or independent contractor marketing materials in [violation](/usc/42/2000e–16a.md?p=c) of [subsection (d)(2)(A)(i)(II)](#d-2-A-i-II).

    - (B) **Rule of construction—** [Clause (i)](#e-1-A-i) of subparagraph (A) shall not apply to the provision of abortion services, except that a [State](/usc/42/1396b.md?p=w-7-D) may impose a sanction on any [medicaid managed care organization](/usc/42/1396b.md?p=m-1-A) that has a contract to provide abortion services if the organization does not provide such services as provided for under the contract.
  - (2) **Intermediate sanctions—** The sanctions described in this paragraph are as follows:
    - (A) Civil money penalties as follows:
      - (i) Except as provided in clause [(ii)](#e-2-A-ii), [(iii)](#e-2-A-iii), or [(iv)](#e-2-A-iv), not more than $25,000 for each determination under [paragraph (1)(A)](#e-1-A).
      - (ii) With respect to a determination under clause [(iii)](#e-1-A-iii) or [(iv)(I)](#e-1-A-iv-I) of paragraph (1)(A), not more than $100,000 for each such determination.
      - (iii) With respect to a determination under [paragraph (1)(A)(ii)](#e-1-A-ii), double the excess amount charged in [violation](/usc/42/2000e–16a.md?p=c) of such subsection (and the excess amount charged shall be deducted from the penalty and returned to the individual concerned).
      - (iv) Subject to [clause (ii)](#e-2-A-ii), with respect to a determination under [paragraph (1)(A)(iii)](#e-1-A-iii), $15,000 for each individual not enrolled as a result of a practice described in such subsection.
    - (B) The appointment of temporary management—
      - (i) to oversee the operation of the [medicaid managed care organization](/usc/42/1396b.md?p=m-1-A) upon a finding by the [State](/usc/42/1396b.md?p=w-7-D) that there is continued egregious behavior by the organization or there is a substantial risk to the health of enrollees; or
      - (ii) to assure the health of the organization’s enrollees, if there is a need for temporary management while—
        - (I) there is an orderly termination or reorganization of the organization; or
        - (II) improvements are made to remedy the [violations](/usc/42/2000e–16a.md?p=c) found under [paragraph (1)](#e-1),

      except that temporary management under this subparagraph may not be terminated until the [State](/usc/42/1396b.md?p=w-7-D) has determined that the [medicaid managed care organization](/usc/42/1396b.md?p=m-1-A) has the capability to ensure that the [violations](/usc/42/2000e–16a.md?p=c) shall not recur.

    - (C) Permitting individuals enrolled with the [managed care entity](#a-1-B) to terminate enrollment without [cause](/usc/42/9908.md?p=c-2), and notifying such individuals of such right to terminate enrollment.
    - (D) Suspension or default of all enrollment of individuals under this subchapter after the date the [Secretary](/usc/42/1301.md?p=a-6) or the [State](/usc/42/1396b.md?p=w-7-D) notifies the entity of a determination of a [violation](/usc/42/2000e–16a.md?p=c) of any requirement of [section 1396b(m) of this title](/usc/42/1396b.md?p=m) or this section.
    - (E) Suspension of payment to the entity under this subchapter for individuals enrolled after the date the [Secretary](/usc/42/1301.md?p=a-6) or [State](/usc/42/1396b.md?p=w-7-D) notifies the entity of such a determination and until the [Secretary](/usc/42/1301.md?p=a-6) or [State](/usc/42/1396b.md?p=w-7-D) is satisfied that the basis for such determination has been corrected and is not likely to recur.
  - (3) **Treatment of chronic substandard entities—** In the case of a [medicaid managed care organization](/usc/42/1396b.md?p=m-1-A) which has repeatedly failed to meet the requirements of [section 1396b(m) of this title](/usc/42/1396b.md?p=m) and this section, the [State](/usc/42/1396b.md?p=w-7-D) shall (regardless of what other sanctions are provided) impose the sanctions described in subparagraphs [(B)](#e-2-B) and [(C)](#e-2-C) of paragraph (2).
  - (4) **Authority to terminate contract—**
    - (A) **In general—** In the case of a [managed care entity](#a-1-B) which has failed to meet the requirements of this part or a contract under section [1396b(m)](/usc/42/1396b.md?p=m) or [1396d(t)(3)](/usc/42/1396d.md?p=t-3) of this title, the [State](/usc/42/1396b.md?p=w-7-D) shall have the authority to terminate such contract with the entity and to enroll such entity’s enrollees with other [managed care entities](#a-1-B) (or to permit such enrollees to receive medical assistance under the [State](/usc/42/1396b.md?p=w-7-D) plan under this subchapter other than through a [managed care entity](#a-1-B)).
    - (B) **Availability of hearing prior to termination of contract—** A [State](/usc/42/1396b.md?p=w-7-D) may not terminate a contract with a [managed care entity](#a-1-B) under [subparagraph (A)](#e-4-A) unless the entity is provided with a hearing prior to the termination.
    - (C) **Notice and right to disenroll in cases of termination hearing—** A [State](/usc/42/1396b.md?p=w-7-D) may—
      - (i) notify individuals enrolled with a [managed care entity](#a-1-B) which is the subject of a hearing to terminate the entity’s contract with the [State](/usc/42/1396b.md?p=w-7-D) of the hearing, and
      - (ii) in the case of such an entity, permit such enrollees to disenroll immediately with the entity without [cause](/usc/42/9908.md?p=c-2).
  - (5) **Other protections for managed care entities against sanctions imposed by State—** Before imposing any sanction against a [managed care entity](#a-1-B) other than termination of the entity’s contract, the [State](/usc/42/1396b.md?p=w-7-D) shall provide the entity with notice and such other due process protections as the [State](/usc/42/1396b.md?p=w-7-D) may provide, except that a [State](/usc/42/1396b.md?p=w-7-D) may not provide a [managed care entity](#a-1-B) with a pre-termination hearing before imposing the sanction described in [paragraph (2)(B)](#e-2-B).
- (f) **Timeliness of payment; adequacy of payment for primary care services—** A contract under [section 1396b(m) of this title](/usc/42/1396b.md?p=m) with a [medicaid managed care organization](/usc/42/1396b.md?p=m-1-A) shall provide that the organization shall make payment to [health care providers](/usc/42/300jj.md?p=3) for items and services which are subject to the contract and that are furnished to individuals eligible for medical assistance under the [State](/usc/42/1396b.md?p=w-7-D) plan under this subchapter who are enrolled with the organization on a timely basis consistent with the [claims](/usc/42/1320a–7a.md?p=i-2) payment procedures described in [section 1396a(a)(37)(A) of this title](/usc/42/1396a.md), unless the [health care provider](/usc/42/300jj.md?p=3) and the organization agree to an alternate payment schedule and, in the case of primary care services described in [section 1396a(a)(13)(C) of this title](/usc/42/1396a.md?p=a-13-C), consistent with the minimum payment rates specified in such section (regardless of the manner in which such payments are made, [including](/usc/42/1301.md?p=b) in the form of capitation or partial capitation).
- (g) **Identification of patients for purposes of making DSH payments—** Each contract with a [managed care entity](#a-1-B) under [section 1396b(m) of this title](/usc/42/1396b.md?p=m) or under [section 1396d(t)(3) of this title](/usc/42/1396d.md?p=t-3) shall require the entity either—
  - (1) to report to the [State](/usc/42/1396b.md?p=w-7-D) information necessary to determine the [hospital](/usc/42/1395dd.md?p=e-5) services provided under the contract (and the identity of [hospitals](/usc/42/1395dd.md?p=e-5) providing such services) for purposes of applying sections [1395ww(d)(5)(F)](/usc/42/1395ww.md?p=d-5-F) and [1396r–4](/usc/42/1396r–4.md) of this title; or
  - (2) to include a sponsorship code in the identification card issued to individuals covered under this subchapter in order that a [hospital](/usc/42/1395dd.md?p=e-5) may identify a patient as being entitled to benefits under this subchapter.
- (h) **Special rules with respect to Indian enrollees, Indian health care providers, and Indian managed care entities—**
  - (1) **Enrollee option to select an Indian health care provider as primary care provider—** In the case of a [non-Indian Medicaid managed care entity](#h-4-C) that—
    - (A) has an [Indian](/usc/42/6862.md?p=6) enrolled with the entity; and
    - (B) has an [Indian health care provider](#h-4-A) that is participating as a primary care provider within the network of the entity,

    insofar as the [Indian](/usc/42/6862.md?p=6) is otherwise eligible to receive services from such [Indian health care provider](#h-4-A) and the [Indian health care provider](#h-4-A) has the capacity to provide primary care services to such [Indian](/usc/42/6862.md?p=6), the contract with the entity under [section 1396b(m) of this title](/usc/42/1396b.md?p=m) or under [section 1396d(t)(3) of this title](/usc/42/1396d.md?p=t-3) shall require, as a condition of receiving payment under such contract, that the [Indian](/usc/42/6862.md?p=6) shall be allowed to choose such [Indian health care provider](#h-4-A) as the [Indian](/usc/42/6862.md?p=6)’s primary care provider under the entity.

  - (2) **Assurance of payment to Indian health care providers for provision of covered services—** Each contract with a [managed care entity](#a-1-B) under [section 1396b(m) of this title](/usc/42/1396b.md?p=m) or under [section 1396d(t)(3) of this title](/usc/42/1396d.md?p=t-3) shall require any such entity, as a condition of receiving payment under such contract, to satisfy the following requirements:
    - (A) **Demonstration of access to Indian health care providers and application of alternative payment arrangements—** Subject to [subparagraph (C)](#h-2-C), to—
      - (i) demonstrate that the number of [Indian health care providers](#h-4-A) that are participating providers with respect to such entity are sufficient to ensure timely access to [covered Medicaid managed care services](#h-4-D) for those [Indian](/usc/42/6862.md?p=6) enrollees who are eligible to receive services from such providers; and
      - (ii) agree to pay [Indian health care providers](#h-4-A), whether such providers are participating or [nonparticipating providers](/usc/42/300gg–112.md?p=c-3) with respect to the entity, for [covered Medicaid managed care services](#h-4-D) provided to those [Indian](/usc/42/6862.md?p=6) enrollees who are eligible to receive services from such providers at a rate equal to the rate negotiated between such entity and the provider involved or, if such a rate has not been negotiated, at a rate that is not less than the level and amount of payment which the entity would make for the services if the services were furnished by a participating provider which is not an [Indian health care provider](#h-4-A).

      The [Secretary](/usc/42/1301.md?p=a-6) shall establish procedures for applying the requirements of [clause (i)](#h-2-A-i) in [States](/usc/42/1396b.md?p=w-7-D) where there are no or few [Indian](/usc/42/6862.md?p=6) health providers.

    - (B) **Prompt payment—** To agree to make prompt payment (consistent with rule for prompt payment of providers under [section 1396u–2(f) of this title](#f)) to [Indian health care providers](#h-4-A) that are participating providers with respect to such entity or, in the case of an entity to which subparagraph [(A)(ii)](#h-2-A-ii) or (C) applies, that the entity is required to pay in accordance with that subparagraph.
    - (C) **Application of special payment requirements for federally-qualified health centers and for services provided by certain Indian health care providers—**
      - (i) **Federally-qualified health centers—**
        - (I) **Managed care entity payment requirement—** To agree to pay any [Indian health care provider](#h-4-A) that is a [federally-qualified health center](/usc/42/1396d.md?p=l-2-B) under this subchapter but not a participating provider with respect to the entity, for the provision of [covered Medicaid managed care services](#h-4-D) by such provider to an [Indian](/usc/42/6862.md?p=6) enrollee of the entity at a rate equal to the amount of payment that the entity would pay a [federally-qualified health center](/usc/42/1396d.md?p=l-2-B) that is a participating provider with respect to the entity but is not an [Indian health care provider](#h-4-A) for such services.
        - (II) **Continued application of State requirement to make supplemental payment—** Nothing in [subclause (I)](#h-2-C-i-I) or subparagraph [(A)](#h-2-A) or [(B)](#h-2-B) shall be construed as waiving the application of [section 1396a(bb)(5) of this title](/usc/42/1396a.md?p=bb-5) regarding the [State](/usc/42/1396b.md?p=w-7-D) plan requirement to make any supplemental payment due under such section to a [federally-qualified health center](/usc/42/1396d.md?p=l-2-B) for services furnished by such center to an enrollee of a [managed care entity](#a-1-B) (regardless of whether the [federally-qualified health center](/usc/42/1396d.md?p=l-2-B) is or is not a participating provider with the entity).
      - (ii) **Payment rate for services provided by certain Indian health care providers—** If the amount paid by a [managed care entity](#a-1-B) to an [Indian health care provider](#h-4-A) that is not a [federally-qualified health center](/usc/42/1396d.md?p=l-2-B) for services provided by the provider to an [Indian](/usc/42/6862.md?p=6) enrollee with the [managed care entity](#a-1-B) is less than the rate that applies to the provision of such services by the provider under the [State](/usc/42/1396b.md?p=w-7-D) plan, the plan shall provide for payment to the [Indian health care provider](#h-4-A), whether the provider is a participating or [nonparticipating provider](/usc/42/300gg–112.md?p=c-3) with respect to the entity, of the difference between such applicable rate and the amount paid by the [managed care entity](#a-1-B) to the provider for such services.
    - (D) **Construction—** Nothing in this paragraph shall be construed as waiving the application of [section 1396a(a)(30)(A) of this title](/usc/42/1396a.md?p=a-30-A) (relating to application of [standards](/usc/42/1320d.md?p=7) to assure that payments are consistent with efficiency, economy, and quality of care).
  - (3) **Special rule for enrollment for Indian managed care entities—** Regarding the application of a [Medicaid managed care program](#h-4-E) to [Indian Medicaid managed care entities](#h-4-B), an [Indian Medicaid managed care entity](#h-4-B) may restrict enrollment under such [program](/usc/42/274l–1.md?p=4) to [Indians](/usc/42/6862.md?p=6) in the same manner as [Indian](/usc/42/6862.md?p=6) Health [Programs](/usc/42/274l–1.md?p=4) may restrict the delivery of services to [Indians](/usc/42/6862.md?p=6).
  - (4) **Definitions—** For purposes of this subsection:
    - (A) **Indian health care provider—** The term “Indian health care provider” means an [Indian](/usc/42/6862.md?p=6) Health [Program](/usc/42/274l–1.md?p=4) or an Urban [Indian](/usc/42/6862.md?p=6) Organization.
    - (B) **Indian Medicaid managed care entity—** The term “Indian Medicaid managed care entity” means a [managed care entity](#a-1-B) that is controlled (within the meaning of the last sentence of [section 1396b(m)(1)(C) of this title](/usc/42/1396b.md?p=m-1-C)) by the [Indian](/usc/42/6862.md?p=6) Health Service, a Tribe, [Tribal Organization](/usc/42/629a.md?p=a-6), or Urban [Indian](/usc/42/6862.md?p=6) Organization, or a [consortium](/usc/42/16282.md?p=d-4), which may be composed of 1 or more Tribes, [Tribal Organizations](/usc/42/629a.md?p=a-6), or Urban [Indian](/usc/42/6862.md?p=6) Organizations, and which also may include the Service.
    - (C) **Non-Indian Medicaid managed care entity—** The term “non-Indian Medicaid managed care entity” means a [managed care entity](#a-1-B) that is not an [Indian Medicaid managed care entity](#h-4-B).
    - (D) **Covered Medicaid managed care services—** The term “covered Medicaid managed care services” means, with respect to an individual enrolled with a [managed care entity](#a-1-B), items and services for which benefits are available with respect to the individual under the contract between the entity and the [State](/usc/42/1396b.md?p=w-7-D) involved.
    - (E) **Medicaid managed care program—** The term “Medicaid managed care program” means a [program](/usc/42/274l–1.md?p=4) under sections [1396b(m)](/usc/42/1396b.md?p=m), [1396d(t)](/usc/42/1396d.md?p=t), and 1396u–2 of this title and [includes](/usc/42/1301.md?p=b) a managed care [program](/usc/42/274l–1.md?p=4) operating under a waiver under section [1396n(b)](/usc/42/1396n.md?p=b) or [1315](/usc/42/1315.md) of this title or otherwise.
- (i) **Drug utilization review activities and requirements—** Beginning not later than October 1, 2019, each contract under a [State](/usc/42/1396b.md?p=w-7-D) plan with a [managed care entity](#a-1-B) (other than a [primary care case manager](/usc/42/1396d.md?p=t-2)) under [section 1396b(m) of this title](/usc/42/1396b.md?p=m) shall provide that the entity is in compliance with the applicable provisions of [section 438.3(s)(2) of title 42, Code of Federal Regulations](/cfr/42/438.3.md?p=s-2), section 483.3(s)(4))[^2] of such title, and section 483.3(s)(5)[^3] of such title, as such provisions were in effect on March 31, 2018.
- (j) **Transmission of address information—** Beginning January 1, 2027, each contract under a [State](/usc/42/1396b.md?p=w-7-D) plan with a [managed care entity](#a-1-B) (as defined in [section 1396u–2(a)(1)(B) of this title](#a-1-B)) or with a prepaid inpatient [health plan](/usc/42/300jj.md?p=6) or prepaid ambulatory [health plan](/usc/42/300jj.md?p=6) (as such terms are defined in [section 1396b(m)(9)(D) of this title](/usc/42/1396b.md?p=m-9-D)), shall provide that such entity or plan shall promptly transmit to the [State](/usc/42/1396b.md?p=w-7-D) any address information for an individual enrolled with such entity or plan that is provided to such entity or plan directly from, or verified by such entity or plan directly with, such individual.

# §1396u–3. State coverage of medicare cost-sharing for additional low-income medicare beneficiaries

- (a) **In general—** A [State](/usc/42/1396b.md?p=w-7-D) plan under this subchapter shall provide, under [section 1396a(a)(10)(E)(iv) of this title](/usc/42/1396a.md?p=a-10-E-iv) and subject to the succeeding provisions of this section and through a plan amendment, for medical assistance for payment of the cost of [medicare cost-sharing](/usc/42/1396d.md?p=p-3) described in such section on behalf of all individuals described in such section (in this section referred to as “qualifying individuals”) who are selected to receive such assistance under [subsection (b)](#b).
- (b) **Selection of qualifying individuals—** A [State](/usc/42/1396b.md?p=w-7-D) shall select qualifying individuals, and provide such individuals with assistance, under this section consistent with the following:
  - (1) **All qualifying individuals may apply—** The [State](/usc/42/1396b.md?p=w-7-D) shall permit all qualifying individuals to apply for assistance during a calendar year.
  - (2) **Selection on first-come, first-served basis—**
    - (A) **In general—** For each calendar year (beginning with 1998), from (and to the extent of) the amount of the [allocation](/usc/42/2021b.md?p=2) under [subsection (c)](#c) for the [State](/usc/42/1396b.md?p=w-7-D) for the fiscal year ending in such calendar year, the [State](/usc/42/1396b.md?p=w-7-D) shall select qualifying individuals who apply for the assistance in the order in which they apply.
    - (B) **Carryover—** For calendar years after 1998, the [State](/usc/42/1396b.md?p=w-7-D) shall give preference to individuals who were provided such assistance (or other assistance described in [section 1396a(a)(10)(E) of this title](/usc/42/1396a.md?p=a-10-E)) in the last month of the previous year and who continue to be (or become) qualifying individuals.
  - (3) **Limit on number of individuals based on allocation—** The [State](/usc/42/1396b.md?p=w-7-D) shall limit the number of qualifying individuals selected with respect to assistance in a calendar year so that the aggregate amount of such assistance provided to such individuals in such year is estimated to be equal to (but not exceed) the [State](/usc/42/1396b.md?p=w-7-D)’s [allocation](/usc/42/2021b.md?p=2) under [subsection (c)](#c) for the fiscal year ending in such calendar year.
  - (4) **Receipt of assistance during duration of year—** If a qualifying individual is selected to receive assistance under this section for a month in a year, the individual is entitled to receive such assistance for the remainder of the year if the individual continues to be a qualifying individual. The fact that an individual is selected to receive assistance under this section at any time during a year does not entitle the individual to continued assistance for any succeeding year.
- (c) **Allocation—**
  - (1) **Total allocation—** The total amount available for [allocation](/usc/42/2021b.md?p=2) under this section for—
    - (A) fiscal year 1998 is $200,000,000;
    - (B) fiscal year 1999 is $250,000,000;
    - (C) fiscal year 2000 is $300,000,000;
    - (D) fiscal year 2001 is $350,000,000; and
    - (E) each of fiscal years 2002 and 2003 is $400,000,000.
  - (2) **Allocation to States—** The [Secretary](/usc/42/1301.md?p=a-6) shall provide for the [allocation](/usc/42/2021b.md?p=2) of the total amount described in [paragraph (1)](#c-1) for a fiscal year, among the [States](/usc/42/1396b.md?p=w-7-D) that executed a plan amendment in accordance with [subsection (a)](#a), based upon the [Secretary](/usc/42/1301.md?p=a-6)’s estimate of the ratio of—
    - (A) an amount equal to the total number of individuals described in [section 1396a(a)(10)(E)(iv) of this title](/usc/42/1396a.md?p=a-10-E-iv) in the [State](/usc/42/1396b.md?p=w-7-D); to
    - (B) the sum of the amounts computed under [subparagraph (A)](#c-2-A) for all eligible [States](/usc/42/1396b.md?p=w-7-D).
- (d) **Applicable FMAP—** With respect to assistance described in [section 1396a(a)(10)(E)(iv) of this title](/usc/42/1396a.md?p=a-10-E-iv) furnished in a [State](/usc/42/1396b.md?p=w-7-D) for calendar quarters in a calendar year—
  - (1) to the extent that such assistance does not exceed the [State](/usc/42/1396b.md?p=w-7-D)’s [allocation](/usc/42/2021b.md?p=2) under [subsection (c)](#c) for the fiscal year ending in the calendar year, the Federal medical assistance percentage shall be equal to 100 percent; and
  - (2) to the extent that such assistance exceeds such [allocation](/usc/42/2021b.md?p=2), the Federal medical assistance percentage is 0 percent.
- (e) **Limitation on entitlement—** Except as specifically provided under this section, nothing in this subchapter shall be construed as establishing any entitlement of individuals described in [section 1396a(a)(10)(E)(iv) of this title](/usc/42/1396a.md?p=a-10-E-iv) to assistance described in such section.
- (f) **Coverage of costs through part B of medicare program—** For each fiscal year, the [Secretary](/usc/42/1301.md?p=a-6) shall provide for the transfer from the Federal Supplementary Medical Insurance [Trust](/usc/42/12854.md?p=6) [Fund](/usc/42/12854.md?p=3) under [section 1395t of this title](/usc/42/1395t.md) to the appropriate account in the Treasury that provides for payments under [section 1396b(a) of this title](/usc/42/1396b.md?p=a) with respect to medical assistance provided under this section, of an amount equivalent to the total of the amount of payments made under such section that is attributable to this section and such transfer shall be treated as an expenditure from such [Trust](/usc/42/12854.md?p=6) [Fund](/usc/42/12854.md?p=3) for purposes of [section 1395r of this title](/usc/42/1395r.md).
- (g) **Special rules—**
  - (1) **In general—** With respect to each period described in [paragraph (2)](#g-2), a [State](/usc/42/1396b.md?p=w-7-D) shall select qualifying individuals, subject to [paragraph (3)](#g-3), and provide such individuals with assistance, in accordance with the provisions of this section as in effect with respect to calendar year 2003, except that for such purpose—
    - (A) references in the preceding subsections of this section to a year, whether fiscal or calendar, shall be deemed to be references to such period; and
    - (B) the total [allocation](/usc/42/2021b.md?p=2) amount under [subsection (c)](#c) for such period shall be the amount described in [paragraph (2)](#g-2) for that period.
  - (2) **Periods and total allocation amounts described—** For purposes of this subsection—
    - (A) for the period that begins on January 1, 2008, and ends on September 30, 2008, the total [allocation](/usc/42/2021b.md?p=2) amount is $315,000,000;
    - (B) for the period that begins on October 1, 2008, and ends on December 31, 2008, the total [allocation](/usc/42/2021b.md?p=2) amount is $130,000,000;
    - (C) for the period that begins on January 1, 2009, and ends on September 30, 2009, the total [allocation](/usc/42/2021b.md?p=2) amount is $350,000,000;
    - (D) for the period that begins on October 1, 2009, and ends on December 31, 2009, the total [allocation](/usc/42/2021b.md?p=2) amount is $150,000,000;
    - (E) for the period that begins on January 1, 2010, and ends on September 30, 2010, the total [allocation](/usc/42/2021b.md?p=2) amount is $462,500,000;
    - (F) for the period that begins on October 1, 2010, and ends on December 31, 2010, the total [allocation](/usc/42/2021b.md?p=2) amount is $165,000,000;
    - (G) for the period that begins on January 1, 2011, and ends on September 30, 2011, the total [allocation](/usc/42/2021b.md?p=2) amount is $720,000,000;
    - (H) for the period that begins on October 1, 2011, and ends on December 31, 2011, the total [allocation](/usc/42/2021b.md?p=2) amount is $280,000,000;
    - (I) for the period that begins on January 1, 2012, and ends on September 30, 2012, the total [allocation](/usc/42/2021b.md?p=2) amount is $450,000,000;
    - (J) for the period that begins on October 1, 2012, and ends on December 31, 2012, the total [allocation](/usc/42/2021b.md?p=2) amount is $280,000,000;
    - (K) for the period that begins on January 1, 2013, and ends on September 30, 2013, the total [allocation](/usc/42/2021b.md?p=2) amount is $485,000,000;
    - (L) for the period that begins on October 1, 2013, and ends on December 31, 2013, the total [allocation](/usc/42/2021b.md?p=2) amount is $300,000,000;
    - (M) for the period that begins on January 1, 2014, and ends on September 30, 2014, the total [allocation](/usc/42/2021b.md?p=2) amount is $485,000,000;
    - (N) for the period that begins on October 1, 2014, and ends on December 31, 2014, the total [allocation](/usc/42/2021b.md?p=2) amount is $300,000,000;
    - (O) for the period that begins on January 1, 2015, and ends on March 31, 2015, the total [allocation](/usc/42/2021b.md?p=2) amount is $250,000,000;
    - (P) for the period that begins on April 1, 2015, and ends on December 31, 2015, the total [allocation](/usc/42/2021b.md?p=2) amount is $535,000,000; and
    - (Q) for 2016 and, subject to [paragraph (4)](#g-4), for each subsequent year, the total [allocation](/usc/42/2021b.md?p=2) amount is $980,000,000.
  - (3) **Rules for periods that begin after January 1—** For any specific period described in subparagraph [(B)](#g-2-B), [(D)](#g-2-D), [(F)](#g-2-F), [(H)](#g-2-H), [(J)](#g-2-J), [(L)](#g-2-L), [(N)](#g-2-N), or [(P)](#g-2-P) of paragraph (2), the following applies:
    - (A) The specific period shall be treated as a continuation of the immediately preceding period in that calendar year for purposes of applying [subsection (b)(2)](#b-2) and qualifying individuals who received assistance in the last month of such immediately preceding period shall be deemed to be selected for the specific period (without the need to complete an application for assistance for such period).
    - (B) The limit to be applied under [subsection (b)(3)](#b-3) for the specific period shall be the same as the limit applied under such subsection for the immediately preceding period.
    - (C) The ratio to be applied under [subsection (c)(2)](#c-2) for the specific period shall be the same as the ratio applied under such subsection for the immediately preceding period.
  - (4) **Adjustment to allocations—** The [Secretary](/usc/42/1301.md?p=a-6) may increase the [allocation](/usc/42/2021b.md?p=2) amount under [paragraph (2)(Q)](#g-2-Q) for a year (beginning with 2017) up to an amount that does not exceed the product of the following:
    - (A) **Maximum allocation amount for previous year—** In the case of 2017, the [allocation](/usc/42/2021b.md?p=2) amount for 2016, or in the case of a subsequent year, the maximum [allocation](/usc/42/2021b.md?p=2) amount allowed under this paragraph for the previous year.
    - (B) **Increase in part B premium—** The monthly premium rate determined under [section 1395r of this title](/usc/42/1395r.md) for the year divided by the monthly premium rate determined under such section for the previous year.
    - (C) **Increase in part B enrollment—** The average number of individuals (as estimated by the Chief Actuary of the Centers for Medicare & [Medicaid](/usc/42/1396b.md?p=w-3-E-iii-III-aa) Services in September of the previous year) to be enrolled under part B of subchapter XVIII for months in the year divided by the average number of such individuals (as so estimated) under this subparagraph with respect to enrollments in months in the previous year.

# §1396u–4. Program of all-inclusive care for elderly (PACE)

- (a) **State option—**
  - (1) **In general—** A [State](/usc/42/1396b.md?p=w-7-D) may elect to provide medical assistance under this section with respect to [PACE program](#a-2) services to [PACE program eligible individuals](#a-5) who are eligible for medical assistance under the [State](/usc/42/1396b.md?p=w-7-D) plan and who are enrolled in a [PACE program](#a-2) under a [PACE program agreement](#a-4). Such individuals need not be eligible for benefits under part A, or enrolled under part B, of subchapter XVIII to be eligible to enroll under this section. In the case of an individual enrolled with a [PACE program](#a-2) pursuant to such an election—
    - (A) the individual shall receive benefits under the plan solely through such [program](/usc/42/274l–1.md?p=4), and
    - (B) the [PACE provider](#a-3-A) shall receive payment in accordance with the [PACE program agreement](#a-4) for provision of such benefits.

    A [State](/usc/42/1396b.md?p=w-7-D) may establish a numerical limit on the number of individuals who may be enrolled in a [PACE program](#a-2) under a [PACE program agreement](#a-4).

  - (2) **“PACE program” defined—** For purposes of this section, the term “PACE program” means a [program](/usc/42/274l–1.md?p=4) of all-inclusive care for the elderly that meets the following requirements:
    - (A) **Operation—** The entity operating the [program](/usc/42/274l–1.md?p=4) is a [PACE provider](#a-3-A) (as defined in [paragraph (3)](#a-3)).
    - (B) **Comprehensive benefits—** The [program](/usc/42/274l–1.md?p=4) provides comprehensive health care services to [PACE program eligible individuals](#a-5) in accordance with the [PACE program agreement](#a-4) and [regulations](#a-10) under this section.
    - (C) **Transition—** In the case of an individual who is enrolled under the [program](/usc/42/274l–1.md?p=4) under this section and whose enrollment ceases for any reason ([including](/usc/42/1301.md?p=b) that the individual no longer qualifies as a [PACE program eligible individual](#a-5), the termination of a [PACE program agreement](#a-4), or otherwise), the [program](/usc/42/274l–1.md?p=4) provides assistance to the individual in obtaining necessary transitional care through appropriate referrals and making the individual’s medical records available to new providers.
  - (3) **“PACE provider” defined—**
    - (A) **In general—** For purposes of this section, the term “PACE provider” means an entity that—
      - (i) subject to [subparagraph (B)](#a-3-B), is (or is a distinct part of) a public entity or a private, nonprofit entity organized for charitable purposes under section 501(c)(3) of the Internal Revenue Code of 1986, and
      - (ii) has entered into a [PACE program agreement](#a-4) with respect to its operation of a [PACE program](#a-2).
    - (B) **Treatment of private, for-profit providers—** [Clause (i)](#a-3-A-i) of subparagraph (A) shall not apply—
      - (i) to entities subject to a [demonstration project](/usc/42/16281.md?p=d-2) waiver under [subsection (h)](#h); and
      - (ii) after the date the report under section 4804(b) of the Balanced Budget Act of 1997 is submitted, unless the [Secretary](/usc/42/1301.md?p=a-6) determines that any of the findings described in subparagraph [(A)](#a-2-A), [(B)](#a-2-B), [(C)](#a-2-C), or (D) of paragraph (2) of such section are true.
  - (4) **“PACE program agreement” defined—** For purposes of this section, the term “PACE program agreement” means, with respect to a [PACE provider](#a-3-A), an [agreement](/usc/42/1320b–8.md?p=a-3-A), consistent with this section, [section 1395eee of this title](/usc/42/1395eee.md) (if applicable), and [regulations](#a-10) promulgated to carry out such sections, among the [PACE provider](#a-3-A), the [Secretary](/usc/42/1301.md?p=a-6), and a [State administering agency](#a-8) for the operation of a [PACE program](#a-2) by the provider under such sections.
  - (5) **“PACE program eligible individual” defined—** For purposes of this section, the term “PACE program eligible individual” means, with respect to a [PACE program](#a-2), an individual who—
    - (A) is 55 years of age or older;
    - (B) subject to [subsection (c)(4)](#c-4), is determined under [subsection (c)](#c) to require the level of care required under the [State](/usc/42/1396b.md?p=w-7-D) [medicaid](/usc/42/1396b.md?p=w-3-E-iii-III-aa) plan for coverage of [nursing facility services](/usc/42/1396d.md?p=f);
    - (C) resides in the service area of the [PACE program](#a-2); and
    - (D) meets such other eligibility conditions as may be imposed under the [PACE program agreement](#a-4) for the [program](/usc/42/274l–1.md?p=4) under [subsection (e)(2)(A)(ii)](#e-2-A-ii).
  - (6) **“PACE protocol” defined—** For purposes of this section, the term “PACE protocol” means the Protocol for the [Program](/usc/42/274l–1.md?p=4) of All-inclusive Care for the Elderly (PACE), as published by On Lok, Inc., as of April 14, 1995, or any successor protocol that may be agreed upon between the [Secretary](/usc/42/1301.md?p=a-6) and On Lok, Inc.
  - (7) **“PACE demonstration waiver program” defined—** For purposes of this section, the term “PACE demonstration waiver program” means a demonstration [program](/usc/42/274l–1.md?p=4) under either of the following sections (as in effect before the date of their repeal):
    - (A) [Section 603(c)](/usc/42/603.md?p=c) of the [Social](/usc/42/1397j.md?p=20) Security Amendments of 1983 (Public Law 98–21), as extended by section 9220 of the Consolidated Omnibus Budget Reconciliation Act of 1985 (Public Law 99–272).
    - (B) Section 9412(b) of the Omnibus Budget Reconciliation Act of 1986 (Public Law 99–509).
  - (8) **“State administering agency” defined—** For purposes of this section, the term “State administering agency” means, with respect to the operation of a [PACE program](#a-2) in a [State](/usc/42/1396b.md?p=w-7-D), the [agency](/usc/42/1397n–12.md?p=1) of that [State](/usc/42/1396b.md?p=w-7-D) (which may be the [single](/usc/42/2304.md?p=m) [agency](/usc/42/1397n–12.md?p=1) responsible for [administration](/usc/42/1301.md?p=a-10) of the [State](/usc/42/1396b.md?p=w-7-D) plan under this subchapter in the [State](/usc/42/1396b.md?p=w-7-D)) responsible for administering [PACE program agreements](#a-4) under this section and [section 1395eee of this title](/usc/42/1395eee.md) in the [State](/usc/42/1396b.md?p=w-7-D).
  - (9) **“Trial period” defined—**
    - (A) **In general—** For purposes of this section, the term “trial period” means, with respect to a [PACE program](#a-2) operated by a [PACE provider](#a-3-A) under a [PACE program agreement](#a-4), the first 3 contract years under such [agreement](/usc/42/1320b–8.md?p=a-3-A) with respect to such [program](/usc/42/274l–1.md?p=4).
    - (B) **Treatment of entities previously operating PACE demonstration waiver programs—** Each contract year ([including](/usc/42/1301.md?p=b) a year occurring before the effective date of this section) during which an entity has operated a [PACE demonstration waiver program](#a-7) shall be counted under [subparagraph (A)](#a-9-A) as a contract year during which the entity operated a [PACE program](#a-2) as a [PACE provider](#a-3-A) under a [PACE program agreement](#a-4).
  - (10) **“Regulations” defined—** For purposes of this section, the term “regulations” refers to interim final or final regulations promulgated under [subsection (f)](#f) to carry out this section and [section 1395eee of this title](/usc/42/1395eee.md).
- (b) **Scope of benefits; beneficiary safeguards—**
  - (1) **In general—** Under a [PACE program agreement](#a-4), a [PACE provider](#a-3-A) shall—
    - (A) provide to [PACE program eligible individuals](#a-5), regardless of source of payment and directly or under contracts with other entities, at a minimum—
      - (i) all items and services covered under subchapter XVIII (for individuals enrolled under [section 1395eee of this title](/usc/42/1395eee.md)) and all items and services covered under this subchapter, but without any limitation or condition as to amount, duration, or scope and without application of deductibles, copayments, coinsurance, or other [cost-sharing](/usc/42/18022.md?p=c-3-A) that would otherwise apply under such subchapter or this subchapter, respectively; and
      - (ii) all additional items and services specified in [regulations](#a-10), based upon those required under the [PACE protocol](#a-6);
    - (B) provide such enrollees access to necessary covered items and services 24 hours per day, every day of the year;
    - (C) provide services to such enrollees through a comprehensive, multidisciplinary health and [social](/usc/42/1397j.md?p=20) services delivery system which integrates acute and [long-term care](/usc/42/1397j.md?p=14-A) services pursuant to [regulations](#a-10); and
    - (D) specify the covered items and services that will not be provided directly by the entity, and to arrange for delivery of those items and services through contracts meeting the requirements of [regulations](#a-10).
  - (2) **Quality assurance; patient safeguards—** The [PACE program agreement](#a-4) shall require the [PACE provider](#a-3-A) to have in effect at a minimum—
    - (A) a written plan of quality assurance and improvement, and procedures implementing such plan, in accordance with [regulations](#a-10), and
    - (B) written safeguards of the rights of enrolled participants ([including](/usc/42/1301.md?p=b) a patient bill of rights and procedures for grievances and appeals) in accordance with [regulations](#a-10) and with other requirements of this subchapter and Federal and [State](/usc/42/1396b.md?p=w-7-D) law designed for the protection of patients.
  - (3) **Treatment of medicare services furnished by noncontract physicians and other entities—**
    - (A) **Application of medicare advantage requirement with respect to medicare services furnished by noncontract physicians and other entities—** [Section 1395w–22(k)(1) of this title](/usc/42/1395w–22.md?p=k-1) (relating to limitations on balance billing against MA organizations for noncontract [physicians](/usc/42/1396d.md?p=e) and other entities with respect to services covered under subchapter XVIII) shall apply to [PACE providers](#a-3-A), [PACE program eligible individuals](#a-5) enrolled with such [PACE providers](#a-3-A), and [physicians](/usc/42/1396d.md?p=e) and other entities that do not have a contract or other [agreement](/usc/42/1320b–8.md?p=a-3-A) establishing payment amounts for services furnished to such an individual in the same manner as such section applies to MA organizations, individuals enrolled with such organizations, and [physicians](/usc/42/1396d.md?p=e) and other entities referred to in such section.
    - (B) **Reference to related provision for noncontract providers of services—** For the provision relating to limitations on balance billing against [PACE providers](#a-3-A) for services covered under subchapter XVIII furnished by noncontract providers of services, see [section 1395cc(a)(1)(O) of this title](/usc/42/1395cc.md?p=a-1-O).
  - (4) **Reference to related provision for services covered under this subchapter but not under subchapter XVIII—** For provisions relating to limitations on payments to providers participating under the [State](/usc/42/1396b.md?p=w-7-D) plan under this subchapter that do not have a contract or other [agreement](/usc/42/1320b–8.md?p=a-3-A) with a [PACE provider](#a-3-A) establishing payment amounts for services covered under such plan (but not under subchapter XVIII) when such services are furnished to enrollees of that [PACE provider](#a-3-A), see [section 1396a(a)(67) of this title](/usc/42/1396a.md?p=a-67).
- (c) **Eligibility determinations—**
  - (1) **In general—** The determination of—
    - (A) whether an individual is a [PACE program eligible individual](#a-5) shall be made under and in accordance with the [PACE program agreement](#a-4), and
    - (B) who is entitled to medical assistance under this subchapter shall be made (or who is not so entitled, may be made) by the [State administering agency](#a-8).
  - (2) **Condition—** An individual is not a [PACE program eligible individual](#a-5) (with respect to payment under this section) unless the individual’s health status has been determined by the [Secretary](/usc/42/1301.md?p=a-6) or the [State administering agency](#a-8), in accordance with [regulations](#a-10), to be comparable to the health status of individuals who have participated in the [PACE demonstration waiver programs](#a-7). Such determination shall be based upon information on health status and related indicators (such as medical diagnoses and measures of activities of daily living, instrumental activities of daily living, and cognitive impairment) that are part of a uniform minimum data set collected by [PACE providers](#a-3-A) on potential [eligible individuals](/usc/42/239.md?p=a-6).
  - (3) **Annual eligibility recertifications—**
    - (A) **In general—** Subject to [subparagraph (B)](#c-3-B), the determination described in [subsection (a)(5)(B)](#a-5-B) for an individual shall be reevaluated at least annually.
    - (B) **Exception—** The requirement of annual reevaluation under [subparagraph (A)](#c-3-A) may be waived during a period in accordance with [regulations](#a-10) in those cases in which the [State administering agency](#a-8) determines that there is no reasonable expectation of improvement or significant change in an individual’s condition during the period because of the severity of chronic condition, or degree of impairment of functional capacity of the individual involved.
  - (4) **Continuation of eligibility—** An individual who is a [PACE program eligible individual](#a-5) may be deemed to continue to be such an individual notwithstanding a determination that the individual no longer meets the requirement of [subsection (a)(5)(B)](#a-5-B) if, in accordance with [regulations](#a-10), in the absence of continued coverage under a [PACE program](#a-2) the individual reasonably would be expected to meet such requirement within the succeeding 6-month period.
  - (5) **Enrollment; disenrollment—**
    - (A) **Voluntary disenrollment at any time—** The enrollment and disenrollment of [PACE program eligible individuals](#a-5) in a [PACE program](#a-2) shall be pursuant to [regulations](#a-10) and the [PACE program agreement](#a-4) and shall permit enrollees to voluntarily disenroll without [cause](/usc/42/9908.md?p=c-2) at any time.
    - (B) **Limitations on disenrollment—**
      - (i) **In general—** [Regulations](#a-10) promulgated by the [Secretary](/usc/42/1301.md?p=a-6) under this section and [section 1395eee of this title](/usc/42/1395eee.md), and the [PACE program agreement](#a-4), shall provide that the [PACE program](#a-2) may not disenroll a [PACE program eligible individual](#a-5) except—
        - (I) for nonpayment of premiums (if applicable) on a timely basis; or
        - (II) for engaging in disruptive or threatening behavior, as defined in such [regulations](#a-10) (developed in close consultation with [State administering agencies](#a-8)).
      - (ii) **No disenrollment for noncompliant behavior—** Except as allowed under [regulations](#a-10) promulgated to carry out [clause (i)(II)](#c-5-B-i-II), a [PACE program](#a-2) may not disenroll a [PACE program eligible individual](#a-5) on the ground that the individual has engaged in noncompliant behavior if such behavior is related to a mental or physical condition of the individual. For purposes of the preceding sentence, the term “noncompliant behavior” [includes](/usc/42/1301.md?p=b) repeated noncompliance with medical advice and repeated failure to appear for appointments.
      - (iii) **Timely review of proposed nonvoluntary disenrollment—** A proposed disenrollment, other than a voluntary disenrollment, shall be subject to timely review and final determination by the [Secretary](/usc/42/1301.md?p=a-6) or by the [State administering agency](#a-8) (as applicable), prior to the proposed disenrollment becoming effective.
- (d) **Payments to PACE providers on a capitated basis—**
  - (1) **In general—** In the case of a [PACE provider](#a-3-A) with a [PACE program agreement](#a-4) under this section, except as provided in this subsection or by [regulations](#a-10), the [State](/usc/42/1396b.md?p=w-7-D) shall make prospective monthly payments of a capitation amount for each [PACE program eligible individual](#a-5) enrolled under the [agreement](/usc/42/1320b–8.md?p=a-3-A) under this section.
  - (2) **Capitation amount—** The capitation amount to be applied under this subsection for a provider for a contract year shall be an amount specified in the [PACE program agreement](#a-4) for the year. Such amount shall be an amount, specified under the PACE [agreement](/usc/42/1320b–8.md?p=a-3-A), which is less than the amount that would otherwise have been made under the [State](/usc/42/1396b.md?p=w-7-D) plan if the individuals were not so enrolled and shall be adjusted to take into account the comparative frailty of PACE enrollees and such other factors as the [Secretary](/usc/42/1301.md?p=a-6) determines to be appropriate. The payment under this section shall be in addition to any payment made under [section 1395eee of this title](/usc/42/1395eee.md) for individuals who are enrolled in a [PACE program](#a-2) under such section.
- (e) **PACE program agreement—**
  - (1) **Requirement—**
    - (A) **In general—** The [Secretary](/usc/42/1301.md?p=a-6), in close cooperation with the [State administering agency](#a-8), shall establish procedures for entering into, extending, and terminating [PACE program agreements](#a-4) for the operation of [PACE programs](#a-2) by entities that meet the requirements for a [PACE provider](#a-3-A) under this section, [section 1395eee of this title](/usc/42/1395eee.md), and [regulations](#a-10).
    - (B) **Numerical limitation—**
      - (i) **In general—** The [Secretary](/usc/42/1301.md?p=a-6) shall not permit the number of [PACE providers](#a-3-A) with which [agreements](/usc/42/1320b–8.md?p=a-3-A) are in effect under this section or under section 9412(b) of the Omnibus Budget Reconciliation Act of 1986 to exceed—
        - (I) 40 as of August 5, 1997, or
        - (II) as of each succeeding anniversary of August 5, 1997, the numerical limitation under this subparagraph for the preceding year plus 20.

      Subclause (II) shall apply without regard to the actual number of [agreements](/usc/42/1320b–8.md?p=a-3-A) in effect as of a previous anniversary date.

      - (ii) **Treatment of certain private, for-profit providers—** The numerical limitation in [clause (i)](#e-1-B-i) shall not apply to a [PACE provider](#a-3-A) that—
        - (I) is operating under a [demonstration project](/usc/42/16281.md?p=d-2) waiver under [subsection (h)](#h), or
        - (II) was operating under such a waiver and subsequently qualifies for [PACE provider](#a-3-A) status pursuant to [subsection (a)(3)(B)(ii)](#a-3-B-ii).
  - (2) **Service area and eligibility—**
    - (A) **In general—** A [PACE program agreement](#a-4) for a [PACE program](#a-2)—
      - (i) shall designate the service area of the [program](/usc/42/274l–1.md?p=4);
      - (ii) may provide additional requirements for individuals to qualify as [PACE program eligible individuals](#a-5) with respect to the [program](/usc/42/274l–1.md?p=4);
      - (iii) shall be effective for a contract year, but may be extended for additional contract years in the absence of a notice by a party to terminate, and is subject to termination by the [Secretary](/usc/42/1301.md?p=a-6) and the [State administering agency](#a-8) at any time for [cause](/usc/42/9908.md?p=c-2) (as provided under the [agreement](/usc/42/1320b–8.md?p=a-3-A));
      - (iv) shall require a [PACE provider](#a-3-A) to meet all applicable [State](/usc/42/1396b.md?p=w-7-D) and local laws and requirements; and
      - (v) shall contain such additional terms and conditions as the parties may agree to, so long as such terms and conditions are consistent with this section and [regulations](#a-10).
    - (B) **Service area overlap—** In designating a service area under a [PACE program agreement](#a-4) under [subparagraph (A)(i)](#e-2-A-i), the [Secretary](/usc/42/1301.md?p=a-6) (in consultation with the [State administering agency](#a-8)) may exclude from designation an area that is already covered under another [PACE program agreement](#a-4), in order to avoid unnecessary duplication of services and avoid impairing the financial and service viability of an existing [program](/usc/42/274l–1.md?p=4).
  - (3) **Data collection; development of outcome measures—**
    - (A) **Data collection—**
      - (i) **In general—** Under a [PACE program agreement](#a-4), the [PACE provider](#a-3-A) shall—
        - (I) collect data;
        - (II) maintain, and afford the [Secretary](/usc/42/1301.md?p=a-6) and the [State administering agency](#a-8) access to, the records relating to the [program](/usc/42/274l–1.md?p=4), [including](/usc/42/1301.md?p=b) pertinent financial, medical, and personnel records; and
        - (III) submit to the [Secretary](/usc/42/1301.md?p=a-6) and the [State administering agency](#a-8) such reports as the [Secretary](/usc/42/1301.md?p=a-6) finds (in consultation with [State administering agencies](#a-8)) necessary to monitor the operation, cost, and effectiveness of the [PACE program](#a-2).
      - (ii) **Requirements during trial period—** During the first 3 years of operation of a [PACE program](#a-2) (either under this section or under a [PACE demonstration waiver program](#a-7)), the [PACE provider](#a-3-A) shall provide such additional data as the [Secretary](/usc/42/1301.md?p=a-6) specifies in [regulations](#a-10) in order to perform the oversight required under [paragraph (4)(A)](#e-4-A).
    - (B) **Development of outcome measures—** Under a [PACE program agreement](#a-4), the [PACE provider](#a-3-A), the [Secretary](/usc/42/1301.md?p=a-6), and the [State administering agency](#a-8) shall jointly cooperate in the development and implementation of health status and quality of life outcome measures with respect to [PACE program eligible individuals](#a-5).
  - (4) **Oversight—**
    - (A) **Annual, close oversight during trial period—** During the [trial period](#a-9-A) (as defined in [subsection (a)(9)](#a-9)) with respect to a [PACE program](#a-2) operated by a [PACE provider](#a-3-A), the [Secretary](/usc/42/1301.md?p=a-6) (in cooperation with the [State administering agency](#a-8)) shall conduct a comprehensive annual review of the operation of the [PACE program](#a-2) by the provider in order to assure compliance with the requirements of this section and [regulations](#a-10). Such a review shall include—
      - (i) an onsite visit to the [program](/usc/42/274l–1.md?p=4) site;
      - (ii) comprehensive assessment of a provider’s fiscal soundness;
      - (iii) comprehensive assessment of the provider’s capacity to provide all PACE services to all enrolled participants;
      - (iv) detailed analysis of the entity’s substantial compliance with all significant requirements of this section and [regulations](#a-10); and
      - (v) any other elements the [Secretary](/usc/42/1301.md?p=a-6) or the [State administering agency](#a-8) considers necessary or appropriate.
    - (B) **Continuing oversight—** After the [trial period](#a-9-A), the [Secretary](/usc/42/1301.md?p=a-6) (in cooperation with the [State administering agency](#a-8)) shall continue to conduct such review of the operation of [PACE providers](#a-3-A) and [PACE programs](#a-2) as may be appropriate, taking into account the performance level of a provider and compliance of a provider with all significant requirements of this section and [regulations](#a-10).
    - (C) **Disclosure—** The results of reviews under this paragraph shall be reported promptly to the [PACE provider](#a-3-A), along with any recommendations for changes to the provider’s [program](/usc/42/274l–1.md?p=4), and shall be made available to the public upon request.
  - (5) **Termination of PACE provider agreements—**
    - (A) **In general—** Under [regulations](#a-10)—
      - (i) the [Secretary](/usc/42/1301.md?p=a-6) or a [State administering agency](#a-8) may terminate a [PACE program agreement](#a-4) for [cause](/usc/42/9908.md?p=c-2), and
      - (ii) a [PACE provider](#a-3-A) may terminate such an [agreement](/usc/42/1320b–8.md?p=a-3-A) after appropriate notice to the [Secretary](/usc/42/1301.md?p=a-6), the [State administering agency](#a-8), and enrollees.
    - (B) **Causes for termination—** In accordance with [regulations](#a-10) establishing procedures for termination of [PACE program agreements](#a-4), the [Secretary](/usc/42/1301.md?p=a-6) or a [State administering agency](#a-8) may terminate a [PACE program agreement](#a-4) with a [PACE provider](#a-3-A) for, among other reasons, the fact that—
      - (i) the [Secretary](/usc/42/1301.md?p=a-6) or [State administering agency](#a-8) determines that—
        - (I) there are significant deficiencies in the quality of care provided to enrolled participants; or
        - (II) the provider has failed to comply substantially with conditions for a [program](/usc/42/274l–1.md?p=4) or provider under this section or [section 1395eee of this title](/usc/42/1395eee.md); and
      - (ii) the entity has failed to develop and successfully initiate, within 30 days of the date of the receipt of written notice of such a determination, a plan to correct the deficiencies, or has failed to continue implementation of such a plan.
    - (C) **Termination and transition procedures—** An entity whose [PACE provider](#a-3-A) [agreement](/usc/42/1320b–8.md?p=a-3-A) is terminated under this paragraph shall implement the transition procedures required under [subsection (a)(2)(C)](#a-2-C).
  - (6) **Secretary’s oversight; enforcement authority—**
    - (A) **In general—** Under [regulations](#a-10), if the [Secretary](/usc/42/1301.md?p=a-6) determines (after consultation with the [State administering agency](#a-8)) that a [PACE provider](#a-3-A) is failing substantially to comply with the requirements of this section and [regulations](#a-10), the [Secretary](/usc/42/1301.md?p=a-6) (and the [State administering agency](#a-8)) may take any or all of the following actions:
      - (i) Condition the continuation of the [PACE program agreement](#a-4) upon timely execution of a corrective action plan.
      - (ii) Withhold some or all further payments under the [PACE program agreement](#a-4) under this section or [section 1395eee of this title](/usc/42/1395eee.md) with respect to [PACE program](#a-2) services furnished by such provider until the deficiencies have been corrected.
      - (iii) Terminate such [agreement](/usc/42/1320b–8.md?p=a-3-A).
    - (B) **Application of intermediate sanctions—** Under [regulations](#a-10), the [Secretary](/usc/42/1301.md?p=a-6) may provide for the application against a [PACE provider](#a-3-A) of remedies described in [section 1395w–27(g)(2)](/usc/42/1395w–27.md?p=g-2) (or, for periods before January 1, 1999, [section 1395mm(i)(6)(B) of this title](/usc/42/1395mm.md?p=i-6-B)) or [1396b(m)(5)(B)](/usc/42/1396b.md?p=m-5-B) of this title in the case of [violations](/usc/42/2000e–16a.md?p=c) by the provider of the type described in [section 1395w–27(g)(1)](/usc/42/1395w–27.md?p=g-1) (or [1395mm(i)(6)(A)](/usc/42/1395mm.md?p=i-6-A) of this title for such periods) or [1396b(m)(5)(A)](/usc/42/1396b.md?p=m-5-A) of this title, respectively (in relation to [agreements](/usc/42/1320b–8.md?p=a-3-A), enrollees, and requirements under [section 1395eee of this title](/usc/42/1395eee.md) or this section, respectively).
  - (7) **Procedures for termination or imposition of sanctions—** Under [regulations](#a-10), the provisions of [section 1395w–27(h) of this title](/usc/42/1395w–27.md?p=h) (or for periods before January 1, 1999, [section 1395mm(i)(9) of this title](/usc/42/1395mm.md?p=i-9)) shall apply to termination and sanctions respecting a [PACE program agreement](#a-4) and [PACE provider](#a-3-A) under this subsection in the same manner as they apply to a termination and sanctions with respect to a contract and a Medicare+Choice organization under part C of subchapter XVIII (or for such periods an eligible organization under [section 1395mm of this title](/usc/42/1395mm.md)).
  - (8) **Timely consideration of applications for PACE program provider status—** In considering an application for [PACE provider](#a-3-A) [program](/usc/42/274l–1.md?p=4) status, the application shall be deemed approved unless the [Secretary](/usc/42/1301.md?p=a-6), within 90 days after the date of the submission of the application to the [Secretary](/usc/42/1301.md?p=a-6), either denies such request in writing or informs the applicant in writing with respect to any additional information that is needed in order to make a final determination with respect to the application. After the date the [Secretary](/usc/42/1301.md?p=a-6) receives such additional information, the application shall be deemed approved unless the [Secretary](/usc/42/1301.md?p=a-6), within 90 days of such date, denies such request.
- (f) **Regulations—**
  - (1) **In general—** The [Secretary](/usc/42/1301.md?p=a-6) shall issue interim final or final [regulations](#a-10) to carry out this section and [section 1395eee of this title](/usc/42/1395eee.md).
  - (2) **Use of PACE protocol—**
    - (A) **In general—** In issuing such [regulations](#a-10), the [Secretary](/usc/42/1301.md?p=a-6) shall, to the extent consistent with the provisions of this section, incorporate the requirements applied to [PACE demonstration waiver programs](#a-7) under the [PACE protocol](#a-6).
    - (B) **Flexibility—** In order to provide for reasonable flexibility in adapting the PACE service delivery model to the needs of particular organizations (such as those in rural areas or those that may determine it appropriate to use nonstaff [physicians](/usc/42/1396d.md?p=e) according to [State](/usc/42/1396b.md?p=w-7-D) licensing law requirements) under this section and [section 1395eee of this title](/usc/42/1395eee.md), the [Secretary](/usc/42/1301.md?p=a-6) (in close consultation with [State administering agencies](#a-8)) may modify or waive provisions of the [PACE protocol](#a-6) so long as any such [modification](/usc/42/7501.md?p=4) or waiver is not inconsistent with and would not impair the essential elements, objectives, and requirements of this section, but may not modify or waive any of the following provisions:
      - (i) The focus on frail elderly qualifying individuals who require the level of care provided in a [nursing facility](/usc/42/1396r.md?p=a).
      - (ii) The delivery of comprehensive, integrated acute and [long-term care](/usc/42/1397j.md?p=14-A) services.
      - (iii) The interdisciplinary team approach to care management and service delivery.
      - (iv) Capitated, integrated financing that allows the provider to pool payments received from public and private [programs](/usc/42/274l–1.md?p=4) and individuals.
      - (v) The assumption by the provider of full financial risk.
    - (C) **Continuation of modifications or waivers of operational requirements under demonstration status—** If a [PACE program](#a-2) operating under demonstration authority has contractual or other operating arrangements which are not otherwise recognized in regulation and which were in effect on July 1[^1] 2000, the [Secretary](/usc/42/1301.md?p=a-6) (in close consultation with, and with the concurrence of, the [State administering agency](#a-8)) shall permit any such [program](/usc/42/274l–1.md?p=4) to continue such arrangements so long as such arrangements are found by the [Secretary](/usc/42/1301.md?p=a-6) and the [State](/usc/42/1396b.md?p=w-7-D) to be reasonably consistent with the objectives of the [PACE program](#a-2).
  - (3) **Application of certain additional beneficiary and program protections—**
    - (A) **In general—** In issuing such [regulations](#a-10) and subject to [subparagraph (B)](#f-3-B), the [Secretary](/usc/42/1301.md?p=a-6) may apply with respect to [PACE programs](#a-2), providers, and [agreements](/usc/42/1320b–8.md?p=a-3-A) such requirements of part C of subchapter XVIII (or, for periods before January 1, 1999, [section 1395mm of this title](/usc/42/1395mm.md)) and sections [1396b(m)](/usc/42/1396b.md?p=m) and [1396u–2](/usc/42/1396u–2.md) of this title relating to protection of beneficiaries and [program](/usc/42/274l–1.md?p=4) integrity as would apply to Medicare+Choice organizations under such part C (or for such periods eligible organizations under risk-sharing contracts under [section 1395mm of this title](/usc/42/1395mm.md)) and to [medicaid managed care organizations](/usc/42/1396b.md?p=m-1-A) under prepaid capitation [agreements](/usc/42/1320b–8.md?p=a-3-A) under [section 1396b(m) of this title](/usc/42/1396b.md?p=m).
    - (B) **Considerations—** In issuing such [regulations](#a-10), the [Secretary](/usc/42/1301.md?p=a-6) shall—
      - (i) take into account the differences between populations served and benefits provided under this section and under part C of subchapter XVIII (or, for periods before January 1, 1999, [section 1395mm of this title](/usc/42/1395mm.md)) and [section 1396b(m) of this title](/usc/42/1396b.md?p=m);
      - (ii) not include any requirement that conflicts with carrying out [PACE programs](#a-2) under this section; and
      - (iii) not include any requirement restricting the proportion of enrollees who are eligible for benefits under this subchapter or subchapter XVIII.
  - (4) **Construction—** Nothing in this subsection shall be construed as preventing the [Secretary](/usc/42/1301.md?p=a-6) from [including](/usc/42/1301.md?p=b) in [regulations](#a-10) provisions to ensure the health and safety of individuals enrolled in a [PACE program](#a-2) under this section that are in addition to those otherwise provided under paragraphs [(2)](#f-2) and [(3)](#f-3).
- (g) **Waivers of requirements—** With respect to carrying out a [PACE program](#a-2) under this section, the following requirements of this subchapter (and [regulations](#a-10) relating to such requirements) shall not apply:
  - (1) [Section 1396a(a)(1) of this title](/usc/42/1396a.md?p=a-1), relating to any requirement that [PACE programs](#a-2) or [PACE program](#a-2) services be provided in all areas of a [State](/usc/42/1396b.md?p=w-7-D).
  - (2) [Section 1396a(a)(10) of this title](/usc/42/1396a.md?p=a-10), insofar as such section relates to comparability of services among different population groups.
  - (3) Sections [1396a(a)(23)](/usc/42/1396a.md?p=a-23) and [1396n(b)(4)](/usc/42/1396n.md?p=b-4) of this title, relating to freedom of choice of providers under a [PACE program](#a-2).
  - (4) [Section 1396b(m)(2)(A) of this title](/usc/42/1396b.md?p=m-2-A), insofar as it restricts a [PACE provider](#a-3-A) from receiving prepaid capitation payments.
  - (5) Such other provisions of this subchapter that, as added or amended by the Balanced Budget Act of 1997, the [Secretary](/usc/42/1301.md?p=a-6) determines are inapplicable to carrying out a [PACE program](#a-2) under this section.
- (h) **Demonstration project for for-profit entities—**
  - (1) **In general—** In order to demonstrate the operation of a [PACE program](#a-2) by a private, for-profit entity, the [Secretary](/usc/42/1301.md?p=a-6) (in close consultation with [State administering agencies](#a-8)) shall [grant](/usc/42/1397j.md?p=10) waivers from the requirement under [subsection (a)(3)](#a-3) that a [PACE provider](#a-3-A) may not be a for-profit, [private entity](/usc/42/12181.md?p=6).
  - (2) **Similar terms and conditions—**
    - (A) **In general—** Except as provided under [subparagraph (B)](#h-2-B), and [paragraph (1)](#h-1), the terms and conditions for operation of a [PACE program](#a-2) by a provider under this subsection shall be the same as those for [PACE providers](#a-3-A) that are nonprofit, private organizations.
    - (B) **Numerical limitation—** The number of [programs](/usc/42/274l–1.md?p=4) for which waivers are granted under this subsection shall not exceed 10. [Programs](/usc/42/274l–1.md?p=4) with waivers granted under this subsection shall not be counted against the numerical limitation specified in [subsection (e)(1)(B)](#e-1-B).
- (i) **Post-eligibility treatment of income—** A [State](/usc/42/1396b.md?p=w-7-D) may provide for post-eligibility [treatment](/usc/42/11851.md?p=11) of [income](/usc/42/292s.md?p=c-4) for individuals enrolled in [PACE programs](#a-2) under this section in the same manner as a [State](/usc/42/1396b.md?p=w-7-D) treats post-eligibility [income](/usc/42/292s.md?p=c-4) for individuals receiving services under a waiver under [section 1396n(c) of this title](/usc/42/1396n.md?p=c).
- (j) **Miscellaneous provisions—** Nothing in this section or [section 1395eee of this title](/usc/42/1395eee.md) shall be construed as preventing a [PACE provider](#a-3-A) from entering into contracts with other governmental or nongovernmental payers for the care of [PACE program eligible individuals](#a-5) who are not eligible for benefits under part A, or enrolled under part B, of subchapter XVIII or eligible for medical assistance under this subchapter.

# §1396u–5. Special provisions relating to medicare prescription drug benefit

- (a) **Requirements relating to medicare prescription drug low-income subsidies, medicare transitional prescription drug assistance, and medicare cost-sharing—** As a condition of its [State](/usc/42/1396b.md?p=w-7-D) plan under this subchapter under [section 1396a(a)(66) of this title](/usc/42/1396a.md?p=a-66) and receipt of any Federal financial assistance under [section 1396b(a) of this title](/usc/42/1396b.md?p=a) subject to [subsection (e)](#e), a [State](/usc/42/1396b.md?p=w-7-D) shall do the following:
  - (1) **Information for transitional prescription drug assistance verification—** The [State](/usc/42/1396b.md?p=w-7-D) shall provide the [Secretary](/usc/42/1301.md?p=a-6) with information to carry out [section 1395w–141(f)(3)(B)(i) of this title](/usc/42/1395w–141.md?p=f-3-B-i).
  - (2) **Eligibility determinations for low-income subsidies—** The [State](/usc/42/1396b.md?p=w-7-D) shall—
    - (A) make determinations of eligibility for premium and [cost-sharing](/usc/42/18022.md?p=c-3-A) subsidies under and in accordance with [section 1395w–114 of this title](/usc/42/1395w–114.md);
    - (B) inform the [Secretary](/usc/42/1301.md?p=a-6) of such determinations in cases in which such eligibility is established; and
    - (C) otherwise provide the [Secretary](/usc/42/1301.md?p=a-6) with such information as may be required to carry out part D, other than subpart 4, of subchapter XVIII ([including](/usc/42/1301.md?p=b) [section 1395w–114 of this title](/usc/42/1395w–114.md)).
  - (3) **Screening for eligibility, and enrollment of, beneficiaries for medicare cost-sharing—** As part of making an eligibility determination required under [paragraph (2)](#a-2) for an individual, the [State](/usc/42/1396b.md?p=w-7-D) shall make a determination of the individual’s eligibility for medical assistance for any [medicare cost-sharing](/usc/42/1396d.md?p=p-3) described in [section 1396d(p)(3) of this title](/usc/42/1396d.md?p=p-3) and, if the individual is eligible for any such [medicare cost-sharing](/usc/42/1396d.md?p=p-3), offer enrollment to the individual under the [State](/usc/42/1396b.md?p=w-7-D) plan (or under a waiver of such plan).
  - (4) **Consideration of data transmitted by the Social Security Administration for purposes of Medicare Savings Program—** The [State](/usc/42/1396b.md?p=w-7-D) shall accept data transmitted under [section 1320b–14(c)(3) of this title](/usc/42/1320b–14.md?p=c-3) and act on such data in the same manner and in accordance with the same deadlines as if the data constituted an initiation of an application for benefits under the Medicare Savings [Program](/usc/42/274l–1.md?p=4) (as defined for purposes of such section) that had been submitted directly by the applicant. The date of the individual’s application for the [low income](/usc/42/701.md?p=b-2) subsidy [program](/usc/42/274l–1.md?p=4) from which the data have been derived shall constitute the date of filing of such application for benefits under the Medicare Savings [Program](/usc/42/274l–1.md?p=4).
- (b) **Regular Federal subsidy of administrative costs—** The amounts expended by a [State](/usc/42/1396b.md?p=w-7-D) in carrying out [subsection (a)](#a) are expenditures reimbursable under the appropriate paragraph of [section 1396b(a) of this title](/usc/42/1396b.md?p=a).
- (c) **Federal assumption of medicaid prescription drug costs for dually eligible individuals—**
  - (1) **Phased-down State contribution—**
    - (A) **In general—** Each of the 50 [States](/usc/42/1396b.md?p=w-7-D) and the District of Columbia for each month beginning with January 2006 shall provide for payment under this subsection to the [Secretary](/usc/42/1301.md?p=a-6) of the product of—
      - (i) the amount computed under [paragraph (2)(A)](#c-2-A) for the [State](/usc/42/1396b.md?p=w-7-D) and month;
      - (ii) the total number of [full-benefit dual eligible individuals](#c-6-A) (as defined in [paragraph (6)](#c-6)) for such [State](/usc/42/1396b.md?p=w-7-D) and month; and
      - (iii) the factor for the month specified in [paragraph (5)](#c-5).
    - (B) **Form and manner of payment—** Payment under [subparagraph (A)](#c-1-A) shall be made in a manner specified by the [Secretary](/usc/42/1301.md?p=a-6) that is similar to the manner in which [State](/usc/42/1396b.md?p=w-7-D) payments are made under an [agreement](/usc/42/1320b–8.md?p=a-3-A) entered into under [section 1395v of this title](/usc/42/1395v.md), except that all such payments shall be deposited into the [Medicare Prescription Drug Account](/usc/42/1395w–151.md?p=a-10) in the Federal Supplementary Medical Insurance [Trust](/usc/42/12854.md?p=6) [Fund](/usc/42/12854.md?p=3).
    - (C) **Compliance—** If a [State](/usc/42/1396b.md?p=w-7-D) fails to pay to the [Secretary](/usc/42/1301.md?p=a-6) an amount required under [subparagraph (A)](#c-1-A), interest shall accrue on such amount at the rate provided under [section 1396b(d)(5) of this title](/usc/42/1396b.md?p=d-5). The amount so owed and applicable interest shall be immediately offset against amounts otherwise payable to the [State](/usc/42/1396b.md?p=w-7-D) under [section 1396b(a) of this title](/usc/42/1396b.md?p=a) subject to [subsection (e)](#e), in accordance with the Federal [Claims](/usc/42/1320a–7a.md?p=i-2) Collection Act of 1996[^1] and applicable regulations.
    - (D) **Data match—** The [Secretary](/usc/42/1301.md?p=a-6) shall perform such periodic data matches as may be necessary to identify and compute the number of [full-benefit dual eligible individuals](#c-6-A) for purposes of computing the amount under [subparagraph (A)](#c-1-A).
  - (2) **Amount—**
    - (A) **In general—** The amount computed under this paragraph for a [State](/usc/42/1396b.md?p=w-7-D) described in [paragraph (1)](#c-1) and for a month in a year is equal to—
      - (i) <sup>1</sup>⁄<sub>12</sub> of the product of—
        - (I) the [base year](/usc/42/1396n.md?p=d-5-C-ii-I) [State](/usc/42/1396b.md?p=w-7-D) [medicaid](/usc/42/1396b.md?p=w-3-E-iii-III-aa) per capita expenditures for [covered part D drugs](/usc/42/1395w–141.md?p=a-4-A) for [full-benefit dual eligible individuals](#c-6-A) (as computed under [paragraph (3)](#c-3)); and
        - (II) a proportion equal to 100 percent minus the Federal medical assistance percentage (as defined in [section 1396d(b) of this title](/usc/42/1396d.md?p=b)) applicable to the [State](/usc/42/1396b.md?p=w-7-D) for the fiscal year in which the month occurs; and
      - (ii) increased for each year (beginning with 2004 up to and [including](/usc/42/1301.md?p=b) the year involved) by the applicable growth factor specified in [paragraph (4)](#c-4) for that year.
    - (B) **Notice—** The [Secretary](/usc/42/1301.md?p=a-6) shall notify each [State](/usc/42/1396b.md?p=w-7-D) described in [paragraph (1)](#c-1) not later than October 15 before the beginning of each year (beginning with 2006) of the amount computed under [subparagraph (A)](#c-2-A) for the [State](/usc/42/1396b.md?p=w-7-D) for that year.
  - (3) **Base year state medicaid per capita expenditures for covered part D drugs for full-benefit dual eligible individuals—**
    - (A) **In general—** For purposes of [paragraph (2)(A)](#c-2-A), the “[base year](/usc/42/1396n.md?p=d-5-C-ii-I) [State](/usc/42/1396b.md?p=w-7-D) [medicaid](/usc/42/1396b.md?p=w-3-E-iii-III-aa) per capita expenditures for [covered part D drugs](/usc/42/1395w–141.md?p=a-4-A) for [full-benefit dual eligible individuals](#c-6-A)” for a [State](/usc/42/1396b.md?p=w-7-D) is equal to the weighted average (as weighted under [subparagraph (C)](#c-3-C)) of—
      - (i) the gross per capita [medicaid](/usc/42/1396b.md?p=w-3-E-iii-III-aa) expenditures for prescription [drugs](/usc/42/282.md?p=j-1-A-vii) for 2003, determined under [subparagraph (B)](#c-3-B); and
      - (ii) the estimated actuarial value of prescription [drug](/usc/42/282.md?p=j-1-A-vii) benefits provided under a capitated managed care plan per [full-benefit dual eligible individual](#c-6-A) for 2003, as determined using such data as the [Secretary](/usc/42/1301.md?p=a-6) determines appropriate.
    - (B) **Gross per capita medicaid expenditures for prescription drugs—**
      - (i) **In general—** The gross per capita [medicaid](/usc/42/1396b.md?p=w-3-E-iii-III-aa) expenditures for prescription [drugs](/usc/42/282.md?p=j-1-A-vii) for 2003 under this subparagraph is equal to the expenditures, [including](/usc/42/1301.md?p=b) dispensing fees, for the [State](/usc/42/1396b.md?p=w-7-D) under this subchapter during 2003 for [covered outpatient drugs](/usc/42/1396r–8.md?p=k-3), determined per full-benefit-dual-eligible-individual for such individuals not receiving medical assistance for such [drugs](/usc/42/282.md?p=j-1-A-vii) through a [medicaid](/usc/42/1396b.md?p=w-3-E-iii-III-aa) managed care plan.
      - (ii) **Determination—** In determining the amount under [clause (i)](#c-3-B-i), the [Secretary](/usc/42/1301.md?p=a-6) shall—
        - (I) use data from the [Medicaid](/usc/42/1396b.md?p=w-3-E-iii-III-aa) Statistical Information System (MSIS) and other available data;
        - (II) exclude expenditures attributable to covered outpatient prescription [drugs](/usc/42/282.md?p=j-1-A-vii) that are not [covered part D drugs](/usc/42/1395w–141.md?p=a-4-A) (as defined in [section 1395w–102(e) of this title](/usc/42/1395w–102.md?p=e), [including](/usc/42/1301.md?p=b) [drugs](/usc/42/282.md?p=j-1-A-vii) described in subparagraph (K) of [section 1396r–8(d)(2) of this title](/usc/42/1396r–8.md?p=d-2)); and
        - (III) reduce such expenditures by the product of such portion and the adjustment factor (described in [clause (iii)](#c-3-B-iii)).
      - (iii) **Adjustment factor—** The adjustment factor described in this clause for a [State](/usc/42/1396b.md?p=w-7-D) is equal to the ratio for the [State](/usc/42/1396b.md?p=w-7-D) for 2003 of—
        - (I) aggregate payments under [agreements](/usc/42/1320b–8.md?p=a-3-A) under [section 1396r–8 of this title](/usc/42/1396r–8.md); to
        - (II) the gross expenditures under this subchapter for [covered outpatient drugs](/usc/42/1396r–8.md?p=k-3) referred to in [clause (i)](#c-3-B-i).

      Such factor shall be determined based on information reported by the [State](/usc/42/1396b.md?p=w-7-D) in the [medicaid](/usc/42/1396b.md?p=w-3-E-iii-III-aa) financial management reports (form CMS–64) for the 4 quarters of calendar year 2003 and such other data as the [Secretary](/usc/42/1301.md?p=a-6) may require.

    - (C) **Weighted average—** The weighted average under [subparagraph (A)](#c-3-A) shall be determined taking into account—
      - (i) with respect to [subparagraph (A)(i)](#c-3-A-i), the average number of [full-benefit dual eligible individuals](#c-6-A) in 2003 who are not described in [clause (ii)](#c-3-C-ii); and
      - (ii) with respect to [subparagraph (A)(ii)](#c-3-A-ii), the average number of [full-benefit dual eligible individuals](#c-6-A) in such year who received in 2003 medical assistance for [covered outpatient drugs](/usc/42/1396r–8.md?p=k-3) through a [medicaid](/usc/42/1396b.md?p=w-3-E-iii-III-aa) managed care plan.
  - (4) **Applicable growth factor—** The applicable growth factor under this paragraph for—
    - (A) each of 2004, 2005, and 2006, is the average annual percent change (to that year from the previous year) of the per capita amount of prescription [drug](/usc/42/282.md?p=j-1-A-vii) expenditures (as determined based on the most recent National Health Expenditure projections for the years involved); and
    - (B) a succeeding year, is the annual percentage increase specified in [section 1395w–102(b)(6) of this title](/usc/42/1395w–102.md?p=b-6) for the year.
  - (5) **Factor—** The factor under this paragraph for a month—
    - (A) in 2006 is 90 percent;
    - (B) in 2007 is 88⅓ percent;
    - (C) in 2008 is 86⅔ percent;
    - (D) in 2009 is 85 percent;
    - (E) in 2010 is 83⅓ percent;
    - (F) in 2011 is 81⅔ percent;
    - (G) in 2012 is 80 percent;
    - (H) in 2013 is 78⅓ percent;
    - (I) in 2014 is 76⅔ percent; or
    - (J) after December 2014, is 75 percent.
  - (6) **Full-benefit dual eligible individual defined—**
    - (A) **In general—** For purposes of this section, the term “full-benefit dual eligible individual” means for a [State](/usc/42/1396b.md?p=w-7-D) for a month an individual who—
      - (i) has coverage for the month for [covered part D drugs](/usc/42/1395w–141.md?p=a-4-A) under a [prescription drug plan](/usc/42/1395w–154.md?p=d-2) under part D of subchapter XVIII, or under an [MA–PD plan](/usc/42/1395w–151.md?p=a-9) under part C of such subchapter; and
      - (ii) is determined eligible by the [State](/usc/42/1396b.md?p=w-7-D) for medical assistance for [full benefits](/usc/42/1396d.md?p=y-2-B) under this subchapter for such month under section [1396a(a)(10)(A)](/usc/42/1396a.md?p=a-10-A) or [1396a(a)(10)(C)](/usc/42/1396a.md?p=a-10-C) of this title, by reason of [section 1396a(f) of this title](/usc/42/1396a.md?p=f), or under any other [category](/usc/42/1395w–4.md?p=j-1) of eligibility for medical assistance for [full benefits](/usc/42/1396d.md?p=y-2-B) under this subchapter, as determined by the [Secretary](/usc/42/1301.md?p=a-6).
    - (B) **Treatment of medically needy and other individuals required to spend down—** In applying [subparagraph (A)](#c-6-A) in the case of an individual determined to be eligible by the [State](/usc/42/1396b.md?p=w-7-D) for medical assistance under [section 1396a(a)(10)(C) of this title](/usc/42/1396a.md?p=a-10-C) or by reason of [section 1396a(f) of this title](/usc/42/1396a.md?p=f), the individual shall be treated as meeting the requirement of [subparagraph (A)(ii)](#c-6-A-ii) for any month if such medical assistance is provided for in any part of the month.
- (d) **Coordination of prescription drug benefits—**
  - (1) **Medicare as primary payor—** In the case of a [part D eligible individual](/usc/42/1395w–101.md?p=a-3-A) (as defined in [section 1395w–101(a)(3)(A) of this title](/usc/42/1395w–101.md?p=a-3-A)) who is described in [subsection (c)(6)(A)(ii)](#c-6-A-ii), notwithstanding any other provision of this subchapter, medical assistance is not available under this subchapter for such [drugs](/usc/42/282.md?p=j-1-A-vii) (or for any [cost-sharing](/usc/42/18022.md?p=c-3-A) respecting such [drugs](/usc/42/282.md?p=j-1-A-vii)), and the rules under this subchapter relating to the provision of medical assistance for such [drugs](/usc/42/282.md?p=j-1-A-vii) shall not apply. The provision of benefits with respect to such [drugs](/usc/42/282.md?p=j-1-A-vii) shall not be considered as the provision of care or services under the plan under this subchapter. No payment may be made under [section 1396b(a) of this title](/usc/42/1396b.md?p=a) for prescribed [drugs](/usc/42/282.md?p=j-1-A-vii) for which medical assistance is not available pursuant to this paragraph.
  - (2) **Coverage of certain excludable drugs—** In the case of medical assistance under this subchapter with respect to a [covered outpatient drug](/usc/42/1396r–8.md?p=k-3) (other than a [covered part D drug](/usc/42/1395w–141.md?p=a-4-A)) furnished to an individual who is enrolled in a [prescription drug plan](/usc/42/1395w–154.md?p=d-2) under part D of subchapter XVIII or an [MA–PD plan](/usc/42/1395w–151.md?p=a-9) under part C of such subchapter, the [State](/usc/42/1396b.md?p=w-7-D) may elect to provide such medical assistance in the manner otherwise provided in the case of individuals who are not [full-benefit dual eligible individuals](#c-6-A) or through an arrangement with such plan.
- (e) **Treatment of territories—**
  - (1) **In general—** In the case of a [State](/usc/42/1396b.md?p=w-7-D), other than the 50 [States](/usc/42/1396b.md?p=w-7-D) and the District of Columbia—
    - (A) the previous provisions of this section shall not apply to residents of such [State](/usc/42/1396b.md?p=w-7-D); and
    - (B) subject to [paragraph (4)](#e-4), if the [State](/usc/42/1396b.md?p=w-7-D) establishes and submits to the [Secretary](/usc/42/1301.md?p=a-6) a plan described in [paragraph (2)](#e-2) (for providing medical assistance with respect to the provision of prescription [drugs](/usc/42/282.md?p=j-1-A-vii) to [part D eligible individuals](/usc/42/1395w–101.md?p=a-3-A)), the amount otherwise determined under [section 1308(f) of this title](/usc/42/1308.md?p=f) (as increased under [section 1308(g) of this title](/usc/42/1308.md?p=g)) for the [State](/usc/42/1396b.md?p=w-7-D) shall be increased by the amount for the fiscal period specified in [paragraph (3)](#e-3).
  - (2) **Plan—** The [Secretary](/usc/42/1301.md?p=a-6) shall determine that a plan is described in this paragraph if the plan—
    - (A) provides medical assistance with respect to the provision of [covered part D drugs](/usc/42/1395w–141.md?p=a-4-A) (as defined in [section 1395w–102(e) of this title](/usc/42/1395w–102.md?p=e)) to low-[income](/usc/42/292s.md?p=c-4) [part D eligible individuals](/usc/42/1395w–101.md?p=a-3-A);
    - (B) provides assurances that additional amounts received by the [State](/usc/42/1396b.md?p=w-7-D) that are attributable to the operation of this subsection shall be used only for such assistance and related administrative expenses and that no more than 10 percent of the amount specified in [paragraph (3)(A)](#e-3-A) for the [State](/usc/42/1396b.md?p=w-7-D) for any fiscal period shall be used for such administrative expenses; and
    - (C) meets such other criteria as the [Secretary](/usc/42/1301.md?p=a-6) may establish.
  - (3) **Increased amount—**
    - (A) **In general—** The amount specified in this paragraph for a [State](/usc/42/1396b.md?p=w-7-D) for a year is equal to the product of—
      - (i) the aggregate amount specified in [subparagraph (B)](#e-3-B); and
      - (ii) the ratio (as estimated by the [Secretary](/usc/42/1301.md?p=a-6)) of—
        - (I) the number of individuals who are entitled to benefits under part A[^1] or enrolled under part B[^1] and who reside in the [State](/usc/42/1396b.md?p=w-7-D) (as determined by the [Secretary](/usc/42/1301.md?p=a-6) based on the most recent available data before the beginning of the year); to
        - (II) the sum of such numbers for all [States](/usc/42/1396b.md?p=w-7-D) that submit a plan described in [paragraph (2)](#e-2).
    - (B) **Aggregate amount—** The aggregate amount specified in this subparagraph for—
      - (i) the last 3 quarters of fiscal year 2006, is equal to $28,125,000;
      - (ii) fiscal year 2007, is equal to $37,500,000; or
      - (iii) a subsequent year, is equal to the aggregate amount specified in this subparagraph for the previous year increased by annual percentage increase specified in [section 1395w–102(b)(6) of this title](/usc/42/1395w–102.md?p=b-6) for the year involved.
  - (4) **Treatment of funding for certain fiscal years—** Notwithstanding [paragraph (1)(B)](#e-1-B), in the case that Puerto Rico, the Virgin Islands, Guam, the Northern Mariana Islands, or American Samoa establishes and submits to the [Secretary](/usc/42/1301.md?p=a-6) a plan described in [paragraph (2)](#e-2) with respect to any of fiscal years 2020 through 2021, the amount specified for such a year in [paragraph (3)](#e-3) for Puerto Rico, the Virgin Islands, Guam, the Northern Mariana Islands, or American Samoa, as the case may be, shall be taken into account in applying, as applicable, subparagraph (A)(ii), (B)(ii), (C)(ii), (D)(ii), or (E)(ii) of [section 1308(g)(2) of this title](/usc/42/1308.md?p=g-2) for such year.
  - (5) **Report—** The [Secretary](/usc/42/1301.md?p=a-6) shall submit to Congress a report on the application of this subsection and may include in the report such recommendations as the [Secretary](/usc/42/1301.md?p=a-6) deems appropriate.

# §1396u–6. Medicaid Integrity Program

- (a) **In general—** There is hereby established the [Medicaid](/usc/42/1396b.md?p=w-3-E-iii-III-aa) Integrity [Program](/usc/42/274l–1.md?p=4) (in this section referred to as the “[Program](/usc/42/274l–1.md?p=4)”) under which the [Secretary](/usc/42/1301.md?p=a-6) shall promote the integrity of the [program](/usc/42/274l–1.md?p=4) under this subchapter by entering into contracts in accordance with this section with [eligible entities](/usc/42/296.md?p=1), or otherwise, to carry out the activities described in [subsection (b)](#b).
- (b) **Activities described—** Activities described in this subsection are as follows:
  - (1) Review of the actions of individuals or entities furnishing items or services (whether on a fee-for-service, risk, or other basis) for which payment may be made under a [State](/usc/42/1396b.md?p=w-7-D) plan approved under this subchapter (or under any waiver of such plan approved under [section 1315 of this title](/usc/42/1315.md)) to determine whether fraud, waste, or [abuse](/usc/42/1397j.md?p=1) has occurred, is likely to occur, or whether such actions have any potential for resulting in an expenditure of [funds](/usc/42/12854.md?p=3) under this subchapter in a manner which is not intended under the provisions of this subchapter.
  - (2) Audit of [claims](/usc/42/1320a–7a.md?p=i-2) for payment for items or services furnished, or administrative services rendered, under a [State](/usc/42/1396b.md?p=w-7-D) plan under this subchapter, [including](/usc/42/1301.md?p=b)—
    - (A) cost reports;
    - (B) consulting contracts; and
    - (C) risk contracts under [section 1396b(m) of this title](/usc/42/1396b.md?p=m).
  - (3) Identification of overpayments to individuals or entities receiving Federal [funds](/usc/42/12854.md?p=3) under this subchapter.
  - (4) Education or [training](/usc/42/285e–2.md?p=b-2), [including](/usc/42/1301.md?p=b) at such national, [State](/usc/42/1396b.md?p=w-7-D), or regional conferences as the [Secretary](/usc/42/1301.md?p=a-6) may establish, of [State](/usc/42/1396b.md?p=w-7-D) or local officers, [employees](/usc/42/1320a–7h.md?p=e-7), or independent contractors responsible for the [administration](/usc/42/1301.md?p=a-10) or the supervision of the [administration](/usc/42/1301.md?p=a-10) of the [State](/usc/42/1396b.md?p=w-7-D) plan under this subchapter, providers of services, [managed care entities](/usc/42/1396b.md?p=m-9-D-i), beneficiaries, and other individuals with respect to payment integrity and quality of care.
- (c) **Eligible entity and contracting requirements—**
  - (1) **In general—** An entity is eligible to enter into a contract under the [Program](/usc/42/274l–1.md?p=4) to carry out any of the activities described in [subsection (b)](#b) if the entity satisfies the requirements of paragraphs [(2)](#c-2) and [(3)](#c-3).
  - (2) **Eligibility requirements—** The requirements of this paragraph are the following:
    - (A) The entity has demonstrated capability to carry out the activities described in [subsection (b)](#b).
    - (B) In carrying out such activities, the entity agrees to cooperate with the Inspector General of the Department of Health and Human Services, the [Attorney General](/usc/42/14902.md?p=6), and other [law enforcement](/usc/42/1397j.md?p=13) [agencies](/usc/42/1397n–12.md?p=1), as appropriate, in the investigation and deterrence of fraud and [abuse](/usc/42/1397j.md?p=1) in relation to this subchapter and in other cases arising out of such activities.
    - (C) The entity complies with such conflict of interest [standards](/usc/42/1320d.md?p=7) as are generally applicable to Federal acquisition and procurement.
    - (D) The entity agrees to provide the [Secretary](/usc/42/1301.md?p=a-6) and the Inspector General of the Department of Health and Human Services with such performance statistics ([including](/usc/42/1301.md?p=b) the number and amount of overpayments recovered, the number of fraud referrals, and the return on investment of such activities by the entity) as the [Secretary](/usc/42/1301.md?p=a-6) or the Inspector General may request.
    - (E) The entity meets such other requirements as the [Secretary](/usc/42/1301.md?p=a-6) may impose.
  - (3) **Contracting requirements—** The entity has contracted with the [Secretary](/usc/42/1301.md?p=a-6) in accordance with such procedures as the [Secretary](/usc/42/1301.md?p=a-6) shall by regulation establish, except that such procedures shall include the following:
    - (A) Procedures for identifying, evaluating, and resolving organizational conflicts of interest that are generally applicable to Federal acquisition and procurement.
    - (B) Competitive procedures to be used—
      - (i) when entering into new contracts under this section;
      - (ii) when entering into contracts that may result in the elimination of responsibilities under [section 202(b)](/usc/42/202.md) of the Health Insurance Portability and Accountability Act of 1996; and
      - (iii) at any other time considered appropriate by the [Secretary](/usc/42/1301.md?p=a-6).
    - (C) Procedures under which a contract under this section may be renewed without regard to any provision of law requiring competition if the contractor has met or exceeded the performance requirements established in the current contract.

    The [Secretary](/usc/42/1301.md?p=a-6) may enter into such contracts without regard to final rules having been promulgated.

  - (4) **Limitation on contractor liability—** The [Secretary](/usc/42/1301.md?p=a-6) shall by regulation provide for the limitation of a contractor’s liability for actions taken to carry out a contract under the [Program](/usc/42/274l–1.md?p=4), and such regulation shall, to the extent the [Secretary](/usc/42/1301.md?p=a-6) finds appropriate, employ the same or comparable [standards](/usc/42/1320d.md?p=7) and other substantive and procedural provisions as are contained in [section 1320c–6 of this title](/usc/42/1320c–6.md).
- (d) **Comprehensive plan for program integrity—**
  - (1) **5-year plan—** With respect to the 5-fiscal year period beginning with fiscal year 2006, and each such 5-fiscal year period that begins thereafter, the [Secretary](/usc/42/1301.md?p=a-6) shall establish a comprehensive plan for ensuring the integrity of the [program](/usc/42/274l–1.md?p=4) established under this subchapter by combatting fraud, waste, and [abuse](/usc/42/1397j.md?p=1).
  - (2) **Consultation—** Each 5-fiscal year plan established under [paragraph (1)](#d-1) shall be developed by the [Secretary](/usc/42/1301.md?p=a-6) in consultation with the [Attorney General](/usc/42/14902.md?p=6), the [Director](/usc/42/5061.md?p=1) of the Federal Bureau of Investigation, the Comptroller General of the [United States](/usc/42/1301.md?p=a-2), the Inspector General of the Department of Health and Human Services, and [State](/usc/42/1396b.md?p=w-7-D) officials with responsibility for controlling provider fraud and [abuse](/usc/42/1397j.md?p=1) under [State](/usc/42/1396b.md?p=w-7-D) plans under this subchapter.
- (e) **Appropriation—**
  - (1) **In general—** Out of any money in the Treasury of the [United States](/usc/42/1301.md?p=a-2) not otherwise appropriated, there are appropriated to carry out the [Medicaid](/usc/42/1396b.md?p=w-3-E-iii-III-aa) Integrity [Program](/usc/42/274l–1.md?p=4) under this section ([including](/usc/42/1301.md?p=b) the costs of equipment, salaries and benefits, and travel and [training](/usc/42/285e–2.md?p=b-2)), without further appropriation—
    - (A) for fiscal year 2006, $5,000,000;
    - (B) for each of fiscal years 2007 and 2008, $50,000,000;
    - (C) for each of fiscal years 2009 and 2010, $75,000,000; and
    - (D) for each fiscal year after fiscal year 2010, the amount appropriated under this paragraph for the previous fiscal year, increased by the percentage increase in the consumer price index for all urban consumers (all items; [United States](/usc/42/1301.md?p=a-2) [city](/usc/42/12902.md?p=11) average) over the previous year.
  - (2) **Availability; authority for use of funds—**
    - (A) **Availability—** Amounts appropriated pursuant to [paragraph (1)](#e-1) shall remain available until expended.
    - (B) **Authority for use of funds for transportation and travel expenses for attendees at education, training, or consultative activities—**
      - (i) **In general—** The [Secretary](/usc/42/1301.md?p=a-6) may use amounts appropriated pursuant to [paragraph (1)](#e-1) to pay for transportation and the travel expenses, [including](/usc/42/1301.md?p=b) per diem in lieu of subsistence, at rates authorized for [employees](/usc/42/1320a–7h.md?p=e-7) of [agencies](/usc/42/1397n–12.md?p=1) under subchapter I of [chapter 57](/usc/5/chptIII-sptD-ch57.md) of title 5 while away from their homes or regular places of business, of individuals described in [subsection (b)(4)](#b-4) who attend education, [training](/usc/42/285e–2.md?p=b-2), or consultative activities conducted under the authority of that subsection.
      - (ii) **Public disclosure—** The [Secretary](/usc/42/1301.md?p=a-6) shall make available on a website of the Centers for Medicare & [Medicaid](/usc/42/1396b.md?p=w-3-E-iii-III-aa) Services that is accessible to the public—
        - (I) the total amount of [funds](/usc/42/12854.md?p=3) expended for each conference conducted under the authority of [subsection (b)(4)](#b-4); and
        - (II) the amount of [funds](/usc/42/12854.md?p=3) expended for each such conference that were for transportation and for travel expenses.
  - (3) **Increase in CMS staffing devoted to protecting Medicaid program integrity—** From the amounts appropriated under [paragraph (1)](#e-1), the [Secretary](/usc/42/1301.md?p=a-6) shall increase by 100, or such number as determined necessary by the [Secretary](/usc/42/1301.md?p=a-6) to carry out the [Program](/usc/42/274l–1.md?p=4), the number of full-time equivalent [employees](/usc/42/1320a–7h.md?p=e-7) whose duties consist solely of protecting the integrity of the [Medicaid](/usc/42/1396b.md?p=w-3-E-iii-III-aa) [program](/usc/42/274l–1.md?p=4) established under this section by providing effective support and assistance to [States](/usc/42/1396b.md?p=w-7-D) to combat provider fraud and [abuse](/usc/42/1397j.md?p=1).
  - (4) **Evaluations—** The [Secretary](/usc/42/1301.md?p=a-6) shall conduct evaluations of [eligible entities](/usc/42/296.md?p=1) which the [Secretary](/usc/42/1301.md?p=a-6) contracts with under the [Program](/usc/42/274l–1.md?p=4) not less frequently than every 3 years.
  - (5) **Annual report—** Not later than 180 days after the end of each fiscal year (beginning with fiscal year 2006), the [Secretary](/usc/42/1301.md?p=a-6) shall submit a report to Congress which identifies—
    - (A) the use of [funds](/usc/42/12854.md?p=3) appropriated pursuant to [paragraph (1)](#e-1); and
    - (B) the effectiveness of the use of such [funds](/usc/42/12854.md?p=3).

# §1396u–7. State flexibility in benefit packages

- (a) **State option of providing benchmark benefits—**
  - (1) **Authority—**
    - (A) **In general—** Notwithstanding [section 1396a(a)(1) of this title](/usc/42/1396a.md?p=a-1) (relating to statewideness), [section 1396a(a)(10)(B) of this title](/usc/42/1396a.md?p=a-10-B) (relating to comparability) and any other provision of this subchapter which would be directly contrary to the authority under this section and subject to subparagraphs [(E)](#a-1-E) and [(F)](#a-1-F), a [State](/usc/42/1396b.md?p=w-7-D), at its option as a [State](/usc/42/1396b.md?p=w-7-D) plan amendment, may provide for medical assistance under this subchapter to individuals within one or more groups of individuals specified by the [State](/usc/42/1396b.md?p=w-7-D) through coverage that—
      - (i) provides benchmark coverage described in [subsection (b)(1)](#b-1) or benchmark equivalent coverage described in [subsection (b)(2)](#b-2); and
      - (ii) for any individual described in [section 1396d(a)(4)(B) of this title](/usc/42/1396d.md) who is eligible under the [State](/usc/42/1396b.md?p=w-7-D) plan in accordance with paragraphs (10) and (17) of [section 1396a(a) of this title](/usc/42/1396a.md?p=a), consists of the items and services described in [section 1396d(a)(4)(B) of this title](/usc/42/1396d.md) (relating to [early and periodic screening, diagnostic, and treatment services](/usc/42/1396d.md?p=r) defined in [section 1396d(r) of this title](/usc/42/1396d.md?p=r)) and provided in accordance with the requirements of [section 1396a(a)(43) of this title](/usc/42/1396a.md?p=a-43).
    - (B) **Limitation—** The [State](/usc/42/1396b.md?p=w-7-D) may only exercise the option under [subparagraph (A)](#a-1-A) for an individual eligible under subclause (VIII) of [section 1396a(a)(10)(A)(i) of this title](/usc/42/1396a.md?p=a-10-A-i) or under an eligibility [category](/usc/42/1395w–4.md?p=j-1) that had been established under the [State](/usc/42/1396b.md?p=w-7-D) plan on or before February 8, 2006.
    - (C) **Option of additional benefits—** In the case of coverage described in [subparagraph (A)](#a-1-A), a [State](/usc/42/1396b.md?p=w-7-D), at its option, may provide such additional benefits as the [State](/usc/42/1396b.md?p=w-7-D) may specify.
    - (D) **Treatment as medical assistance—** Payment of premiums for such coverage under this subsection shall be treated as payment of other insurance premiums described in the third sentence of [section 1396d(a) of this title](/usc/42/1396d.md?p=a).
    - (E) **Rule of construction—** Nothing in this paragraph shall be construed as—
      - (i) requiring a [State](/usc/42/1396b.md?p=w-7-D) to offer all or any of the items and services required by [subparagraph (A)(ii)](#a-1-A-ii) through an issuer of benchmark coverage described in [subsection (b)(1)](#b-1) or benchmark equivalent coverage described in [subsection (b)(2)](#b-2);
      - (ii) preventing a [State](/usc/42/1396b.md?p=w-7-D) from offering all or any of the items and services required by [subparagraph (A)(ii)](#a-1-A-ii) through an issuer of benchmark coverage described in [subsection (b)(1)](#b-1) or benchmark equivalent coverage described in [subsection (b)(2)](#b-2); or
      - (iii) affecting a [child](/usc/42/416.md?p=e)’s entitlement to care and services described in subsections (a)(4)(B) and (r) of [section 1396d of this title](/usc/42/1396d.md) and provided in accordance with [section 1396a(a)(43) of this title](/usc/42/1396a.md?p=a-43) whether provided through benchmark coverage, benchmark equivalent coverage, or otherwise.
    - (F) **Necessary transportation—** Notwithstanding the preceding provisions of this paragraph, a [State](/usc/42/1396b.md?p=w-7-D) may not provide medical assistance through the enrollment of an individual with benchmark coverage or benchmark equivalent coverage described in [subparagraph (A)(i)](#a-1-A-i) unless, subject to [section 1396b(i)(9) of this title](/usc/42/1396b.md?p=i-9) and in accordance with [section 1396a(a)(4) of this title](/usc/42/1396a.md?p=a-4), the benchmark benefit package or benchmark equivalent coverage (or the [State](/usc/42/1396b.md?p=w-7-D))—
      - (i) ensures necessary transportation for individuals enrolled under such package or coverage to and from providers; and
      - (ii) provides a description of the methods that will be used to ensure such transportation.
  - (2) **Application—**
    - (A) **In general—** Except as provided in [subparagraph (B)](#a-2-B), a [State](/usc/42/1396b.md?p=w-7-D) may require that a [full-benefit eligible individual](#a-2-C-i) (as defined in [subparagraph (C)](#a-2-C)) within a group obtain benefits under this subchapter through enrollment in coverage described in [paragraph (1)(A)](#a-1-A). A [State](/usc/42/1396b.md?p=w-7-D) may apply the previous sentence to individuals within 1 or more groups of such individuals.
    - (B) **Limitation on application—** A [State](/usc/42/1396b.md?p=w-7-D) may not require under [subparagraph (A)](#a-2-A) an individual to obtain benefits through enrollment described in [paragraph (1)(A)](#a-1-A) if the individual is within one of the following [categories](/usc/42/1395w–4.md?p=j-1) of individuals:
      - (i) **Mandatory pregnant women—** The individual is a pregnant woman who is required to be covered under the [State](/usc/42/1396b.md?p=w-7-D) plan under [section 1396a(a)(10)(A)(i) of this title](/usc/42/1396a.md?p=a-10-A-i).
      - (ii) **Blind or disabled individuals—** The individual qualifies for medical assistance under the [State](/usc/42/1396b.md?p=w-7-D) plan on the basis of being blind or disabled (or being treated as being blind or disabled) without regard to whether the individual is eligible for [supplemental security income benefits](/usc/42/1382i.md?p=b-2) under subchapter XVI on the basis of being blind or disabled and [including](/usc/42/1301.md?p=b) an individual who is eligible for medical assistance on the basis of [section 1396a(e)(3) of this title](/usc/42/1396a.md?p=e-3).
      - (iii) **Dual eligibles—** The individual is entitled to benefits under any part of subchapter XVIII.
      - (iv) **Terminally ill hospice patients—** The individual is terminally ill and is receiving benefits for [hospice care](/usc/42/1396d.md?p=o-1-A) under this subchapter.
      - (v) **Eligible on basis of institutionalization—** The individual is an inpatient in a [hospital](/usc/42/1395dd.md?p=e-5), [nursing facility](/usc/42/1396r.md?p=a), [intermediate care facility for the mentally retarded](/usc/42/1396d.md?p=d), or other medical institution, and is required, as a condition of receiving services in such institution under the [State](/usc/42/1396b.md?p=w-7-D) plan, to spend for costs of [medical care](/usc/42/1301.md?p=a-7) all but a minimal amount of the individual’s [income](/usc/42/292s.md?p=c-4) required for personal needs.
      - (vi) **Medically frail and special medical needs individuals—** The individual is medically frail or otherwise an individual with special medical needs (as identified in accordance with regulations of the [Secretary](/usc/42/1301.md?p=a-6)).
      - (vii) **Beneficiaries qualifying for long-term care services—** The individual qualifies based on medical condition for medical assistance for [long-term care](/usc/42/1397j.md?p=14-A) services described in [section 1396p(c)(1)(C) of this title](/usc/42/1396p.md?p=c-1-C).
      - (viii) **Children in foster care receiving child welfare services and children receiving foster care or adoption assistance—** The individual is an individual with respect to whom [child](/usc/42/416.md?p=e) welfare services are made available under part B of subchapter IV on the basis of being a [child](/usc/42/416.md?p=e) in foster care or with respect to whom adoption or foster care assistance is made available under part E of such subchapter, without regard to age, or the individual qualifies for medical assistance on the basis of [section 1396a(a)(10)(A)(i)(IX) of this title](/usc/42/1396a.md?p=a-10-A-i-IX).
      - (ix) **TANF and section 1396u–1 parents—** The individual qualifies for medical assistance on the basis of eligibility to receive assistance under a [State](/usc/42/1396b.md?p=w-7-D) plan funded under part A of subchapter IV (as in effect on or after the welfare reform effective date defined in [section 1396u–1(i) of this title](/usc/42/1396u–1.md?p=i)).
      - (x) **Women in the breast or cervical cancer program—** The individual is a woman who is receiving medical assistance by virtue of the application of sections [1396a(a)(10)(A)(ii)(XVIII)](/usc/42/1396a.md?p=a-10-A-ii-XVIII) and [1396a(aa)](/usc/42/1396a.md?p=aa) of this title.
      - (xi) **Limited services beneficiaries—** The individual—
        - (I) qualifies for medical assistance on the basis of [section 1396a(a)(10)(A)(ii)(XII) of this title](/usc/42/1396a.md?p=a-10-A-ii-XII); or
        - (II) is not a qualified alien (as defined in [section 1641 of title 8](/usc/8/1641.md)) and receives care and services necessary for the [treatment](/usc/42/11851.md?p=11) of an [emergency medical condition](/usc/42/300gg–19a.md?p=b-2-A) in accordance with [section 1396b(v) of this title](/usc/42/1396b.md?p=v).
    - (C) **Full-benefit eligible individuals—**
      - (i) **In general—** For purposes of this paragraph, subject to [clause (ii)](#a-2-C-ii), the term “full-benefit eligible individual” means for a [State](/usc/42/1396b.md?p=w-7-D) for a month an individual who is determined eligible by the [State](/usc/42/1396b.md?p=w-7-D) for medical assistance for all services defined in [section 1396d(a) of this title](/usc/42/1396d.md?p=a) which are covered under the [State](/usc/42/1396b.md?p=w-7-D) plan under this subchapter for such month under [section 1396a(a)(10)(A) of this title](/usc/42/1396a.md?p=a-10-A) or under any other [category](/usc/42/1395w–4.md?p=j-1) of eligibility for medical assistance for all such services under this subchapter, as determined by the [Secretary](/usc/42/1301.md?p=a-6).
      - (ii) **Exclusion of medically needy and spend-down populations—** Such term shall not include an individual determined to be eligible by the [State](/usc/42/1396b.md?p=w-7-D) for medical assistance under [section 1396a(a)(10)(C) of this title](/usc/42/1396a.md?p=a-10-C) or by reason of [section 1396a(f) of this title](/usc/42/1396a.md?p=f) or otherwise eligible based on a reduction of [income](/usc/42/292s.md?p=c-4) based on costs incurred for medical or other remedial care.
- (b) **Benchmark benefit packages—**
  - (1) **In general—** For purposes of [subsection (a)(1)](#a-1), subject to paragraphs [(5)](#b-5) and [(6)](#b-6), each of the following coverages shall be considered to be benchmark coverage:
    - (A) **FEHBP-equivalent health insurance coverage—** The [standard](/usc/42/1320d.md?p=7) Blue Cross/Blue Shield preferred provider option service benefit plan, described in and offered under [section 8903(1) of title 5](/usc/5/8903.md?p=1).
    - (B) **State employee coverage—** A health benefits coverage plan that is offered and generally available to [State](/usc/42/1396b.md?p=w-7-D) [employees](/usc/42/1320a–7h.md?p=e-7) in the [State](/usc/42/1396b.md?p=w-7-D) involved.
    - (C) **Coverage offered through HMO—** The [health insurance coverage](/usc/42/1320d–9.md?p=b-2) plan that—
      - (i) is offered by a health maintenance organization (as defined in [section 300gg–91(b)(3) of this title](/usc/42/300gg–91.md?p=b-3)), and
      - (ii) has the largest insured commercial, non-[medicaid](/usc/42/1396b.md?p=w-3-E-iii-III-aa) enrollment of covered lives of such coverage plans offered by such a health maintenance organization in the [State](/usc/42/1396b.md?p=w-7-D) involved.
    - (D) **Secretary-approved coverage—** Any other health benefits coverage that the [Secretary](/usc/42/1301.md?p=a-6) determines, upon application by a [State](/usc/42/1396b.md?p=w-7-D), provides appropriate coverage for the population proposed to be provided such coverage.
  - (2) **Benchmark-equivalent coverage—** For purposes of [subsection (a)(1)](#a-1), subject to paragraphs [(5)](#b-5) and [(6)](#b-6)[^1] coverage that meets the following requirement shall be considered to be benchmark-equivalent coverage:
    - (A) **Inclusion of basic services—** The coverage [includes](/usc/42/1301.md?p=b) benefits for items and services within each of the following [categories](/usc/42/1395w–4.md?p=j-1) of basic services:
      - (i) Inpatient and outpatient [hospital](/usc/42/1395dd.md?p=e-5) services.
      - (ii) [Physicians](/usc/42/1396d.md?p=e)’ surgical and medical services.
      - (iii) [Laboratory](/usc/42/300jj.md?p=10) and x-ray services.
      - (iv) Coverage of prescription [drugs](/usc/42/282.md?p=j-1-A-vii).
      - (v) Mental health services.
      - (vi) Well-baby and well-[child](/usc/42/416.md?p=e) care, [including](/usc/42/1301.md?p=b) age-appropriate immunizations.
      - (vii) Other appropriate preventive services, as designated by the [Secretary](/usc/42/1301.md?p=a-6).
    - (B) **Aggregate actuarial value equivalent to benchmark package—** The coverage has an aggregate actuarial value that is at least actuarially equivalent to one of the benchmark benefit packages described in [paragraph (1)](#b-1).
    - (C) **Substantial actuarial value for additional services included in benchmark package—** With respect to each of the following [categories](/usc/42/1395w–4.md?p=j-1) of additional services for which coverage is provided under the benchmark benefit package used under [subparagraph (B)](#b-2-B), the coverage has an actuarial value that is equal to at least 75 percent of the actuarial value of the coverage of that [category](/usc/42/1395w–4.md?p=j-1) of services in such package:
      - (i) Vision services.
      - (ii) Hearing services.
  - (3) **Determination of actuarial value—** The actuarial value of coverage of benchmark benefit packages shall be set forth in an actuarial opinion in an actuarial report that has been prepared—
    - (A) by an individual who is a member of the American Academy of Actuaries;
    - (B) using generally accepted actuarial principles and methodologies;
    - (C) using a standardized set of utilization and price factors;
    - (D) using a standardized population that is [representative](/usc/42/3058f.md?p=5) of the population involved;
    - (E) applying the same principles and factors in comparing the value of different coverage (or [categories](/usc/42/1395w–4.md?p=j-1) of services);
    - (F) without taking into account any differences in coverage based on the method of delivery or means of cost control or utilization used; and
    - (G) taking into account the ability of a [State](/usc/42/1396b.md?p=w-7-D) to reduce benefits by taking into account the increase in actuarial value of benefits coverage offered under this subchapter that results from the limitations on cost sharing under such coverage.

    The actuary preparing the opinion shall select and specify in the memorandum the standardized set and population to be used under subparagraphs [(C)](#b-3-C) and [(D)](#b-3-D).

  - (4) **Coverage of rural health clinic and FQHC services—** Notwithstanding the previous provisions of this section, a [State](/usc/42/1396b.md?p=w-7-D) may not provide for medical assistance through enrollment of an individual with benchmark coverage or benchmark equivalent coverage under this section unless—
    - (A) the individual has access, through such coverage or otherwise, to services described in subparagraphs (B) and (C) of [section 1396d(a)(2) of this title](/usc/42/1396d.md?p=a-2); and
    - (B) payment for such services is made in accordance with the requirements of [section 1396a(bb) of this title](/usc/42/1396a.md?p=bb).
  - (5) **Minimum standards—** Effective January 1, 2014, any benchmark benefit package under [paragraph (1)](#b-1) or benchmark equivalent coverage under [paragraph (2)](#b-2) must provide at least essential health benefits as described in [section 18022(b) of this title](/usc/42/18022.md?p=b), and beginning January 1, 2022, coverage of routine patient costs for items and services furnished in connection with participation in a qualifying clinical trial (as defined in [section 1396d(gg) of this title](/usc/42/1396d.md?p=gg)).
  - (6) **Mental health services parity—**
    - (A) **In general—** In the case of any benchmark benefit package under [paragraph (1)](#b-1) or benchmark equivalent coverage under [paragraph (2)](#b-2) that is offered by an entity that is not a [medicaid managed care organization](/usc/42/1396b.md?p=m-1-A) and that provides both medical and surgical benefits and mental health or substance use disorder benefits, the entity shall ensure that the financial requirements and [treatment](/usc/42/11851.md?p=11) limitations applicable to such mental health or substance use disorder benefits comply with the requirements of [section 300gg–26(a) of this title](/usc/42/300gg–26.md?p=a) in the same manner as such requirements apply to a [group health plan](/usc/42/1320d–9.md?p=b-2). In applying the previous sentence with respect to requirements under paragraph (8) of [section 300gg–26(a) of this title](/usc/42/300gg–26.md?p=a), a benchmark benefit package or benchmark equivalent coverage described in such sentence shall be treated as in compliance with such requirements if the [State](/usc/42/1396b.md?p=w-7-D) plan under this subchapter or the benchmark benefit package or benefit equivalent coverage, as applicable, is in compliance with [subpart C of part 440 of title 42, Code of Federal Regulations](/cfr/42/part440-subpartC.md), or any successor regulation.
    - (B) **Deemed compliance—** Coverage provided with respect to an individual described in [section 1396d(a)(4)(B) of this title](/usc/42/1396d.md) and covered under the [State](/usc/42/1396b.md?p=w-7-D) plan under [section 1396a(a)(10)(A) of this title](/usc/42/1396a.md?p=a-10-A) of the services described in [section 1396d(a)(4)(B) of this title](/usc/42/1396d.md) (relating to [early and periodic screening, diagnostic, and treatment services](/usc/42/1396d.md?p=r) defined in [section 1396d(r) of this title](/usc/42/1396d.md?p=r)) and provided in accordance with [section 1396a(a)(43) of this title](/usc/42/1396a.md?p=a-43), shall be deemed to satisfy the requirements of [subparagraph (A)](#b-6-A).
  - (7) **Coverage of family planning services and supplies—** Notwithstanding the previous provisions of this section, a [State](/usc/42/1396b.md?p=w-7-D) may not provide for medical assistance through enrollment of an individual with benchmark coverage or benchmark-equivalent coverage under this section unless such coverage [includes](/usc/42/1301.md?p=b) for any individual described in [section 1396d(a)(4)(C) of this title](/usc/42/1396d.md), medical assistance for [family](/usc/42/290ff–4.md?p=d-2) planning services and supplies in accordance with such section.
  - (8) **COVID–19 vaccines, testing, and treatment—** Notwithstanding the previous provisions of this section, a [State](/usc/42/1396b.md?p=w-7-D) may not provide for medical assistance through enrollment of an individual with benchmark coverage or benchmark-equivalent coverage under this section unless, during the period beginning on March 11, 2021, and ending on the last day of the first calendar quarter that begins one year after the last day of the emergency period described in [section 1320b–5(g)(1)(B) of this title](/usc/42/1320b–5.md?p=g-1-B), such coverage [includes](/usc/42/1301.md?p=b) (and does not impose any deduction, cost sharing, or similar charge for)—
    - (A) COVID–19 vaccines and [administration](/usc/42/1301.md?p=a-10) of the vaccines; and
    - (B) testing and [treatments](/usc/42/11851.md?p=11) for COVID–19, [including](/usc/42/1301.md?p=b) specialized equipment and therapies ([including](/usc/42/1301.md?p=b) preventive therapies), and, in the case of such an individual who is diagnosed with or presumed to have COVID–19, during the period such individual has (or is presumed to have) COVID–19, the [treatment](/usc/42/11851.md?p=11) of a condition that may seriously complicate the [treatment](/usc/42/11851.md?p=11) of COVID–19, if otherwise covered under the [State](/usc/42/1396b.md?p=w-7-D) plan (or waiver of such plan).
- (c) **Publication of provisions affected—** With respect to a [State](/usc/42/1396b.md?p=w-7-D) plan amendment to provide benchmark benefits in accordance with subsections [(a)](#a) and [(b)](#b) that is approved by the [Secretary](/usc/42/1301.md?p=a-6), the [Secretary](/usc/42/1301.md?p=a-6) shall publish on the Internet website of the Centers for Medicare & [Medicaid](/usc/42/1396b.md?p=w-3-E-iii-III-aa) Services, a list of the provisions of this subchapter that the [Secretary](/usc/42/1301.md?p=a-6) has determined do not apply in order to enable the [State](/usc/42/1396b.md?p=w-7-D) to carry out the plan amendment and the reason for each such determination on the date such approval is made, and shall publish such list in the Federal Register and[^2] not later than 30 days after such date of approval.

# §1396u–8. Health opportunity accounts

- (a) **Authority—**
  - (1) **In general—** Notwithstanding any other provision of this subchapter, the [Secretary](/usc/42/1301.md?p=a-6) shall establish a demonstration [program](/usc/42/274l–1.md?p=4) under which [States](/usc/42/1396b.md?p=w-7-D) may provide under their [State](/usc/42/1396b.md?p=w-7-D) plans under this subchapter ([including](/usc/42/1301.md?p=b) such a plan operating under a statewide waiver under [section 1315 of this title](/usc/42/1315.md)) in accordance with this section for the provision of alternative benefits consistent with [subsection (c)](#c) for eligible population groups in one or more [geographic areas](/usc/42/11360.md?p=9) of the [State](/usc/42/1396b.md?p=w-7-D) specified by the [State](/usc/42/1396b.md?p=w-7-D). An amendment under the previous sentence is referred to in this section as a “[State](/usc/42/1396b.md?p=w-7-D) demonstration [program](/usc/42/274l–1.md?p=4)”.
  - (2) **Initial demonstration—**
    - (A) **In general—** The demonstration [program](/usc/42/274l–1.md?p=4) under this section shall begin on January 1, 2007. During the first 5 years of such [program](/usc/42/274l–1.md?p=4), the [Secretary](/usc/42/1301.md?p=a-6) shall not approve more than 10 [States](/usc/42/1396b.md?p=w-7-D) to conduct demonstration [programs](/usc/42/274l–1.md?p=4) under this section, with each [State](/usc/42/1396b.md?p=w-7-D) demonstration [program](/usc/42/274l–1.md?p=4) covering 1 or more [geographic areas](/usc/42/11360.md?p=9) specified by the [State](/usc/42/1396b.md?p=w-7-D). After such 5-year period—
      - (i) unless the [Secretary](/usc/42/1301.md?p=a-6) finds, taking into account cost-effectiveness, quality of care, and other criteria that the [Secretary](/usc/42/1301.md?p=a-6) specifies, that a [State](/usc/42/1396b.md?p=w-7-D) demonstration [program](/usc/42/274l–1.md?p=4) previously implemented has been unsuccessful, such a demonstration [program](/usc/42/274l–1.md?p=4) may be extended or made permanent in the [State](/usc/42/1396b.md?p=w-7-D); and
      - (ii) unless the [Secretary](/usc/42/1301.md?p=a-6) finds, taking into account cost-effectiveness, quality of care, and other criteria that the [Secretary](/usc/42/1301.md?p=a-6) specifies, that all [State](/usc/42/1396b.md?p=w-7-D) demonstration [programs](/usc/42/274l–1.md?p=4) previously implemented were unsuccessful, other [States](/usc/42/1396b.md?p=w-7-D) may implement [State](/usc/42/1396b.md?p=w-7-D) demonstration [programs](/usc/42/274l–1.md?p=4).
    - (B) **GAO report—**
      - (i) **In general—** Not later than 3 months after the end of the 5-year period described in [subparagraph (A)](#a-2-A), the Comptroller General of the [United States](/usc/42/1301.md?p=a-2) shall submit a report to Congress evaluating the demonstration [programs](/usc/42/274l–1.md?p=4) conducted under this section during such period.
      - (ii) **Appropriation—** Out of any [funds](/usc/42/12854.md?p=3) in the Treasury not otherwise appropriated, there is appropriated to the Comptroller General of the [United States](/usc/42/1301.md?p=a-2), $550,000 for the period of fiscal years 2007 through 2010 to carry out [clause (i)](#a-2-B-i).
  - (3) **Approval—** The [Secretary](/usc/42/1301.md?p=a-6) shall not approve a [State](/usc/42/1396b.md?p=w-7-D) demonstration [program](/usc/42/274l–1.md?p=4) under [paragraph (1)](#a-1) unless the [program](/usc/42/274l–1.md?p=4) [includes](/usc/42/1301.md?p=b) the following:
    - (A) Creating patient awareness of the high cost of [medical care](/usc/42/1301.md?p=a-7).
    - (B) Providing incentives to patients to seek preventive care services.
    - (C) Reducing inappropriate use of health care services.
    - (D) Enabling patients to take responsibility for health outcomes.
    - (E) Providing enrollment counselors and ongoing education activities.
    - (F) Providing transactions involving health opportunity accounts to be conducted electronically and without cash.
    - (G) Providing access to negotiated provider payment rates consistent with this section.

    Nothing in this section shall be construed as preventing a [State](/usc/42/1396b.md?p=w-7-D) demonstration [program](/usc/42/274l–1.md?p=4) from providing incentives for patients obtaining appropriate preventive care (as defined for purposes of section 223(c)(2)(C) of the Internal Revenue Code of 1986), such as additional account contributions for an individual demonstrating healthy prevention [practices](/usc/42/17061.md?p=19).

  - (4) **No requirement for statewideness—** Nothing in this section or any other provision of law shall be construed to require that a [State](/usc/42/1396b.md?p=w-7-D) must provide for the implementation of a [State](/usc/42/1396b.md?p=w-7-D) demonstration [program](/usc/42/274l–1.md?p=4) on a Statewide[^1] basis.
- (b) **Eligible population groups—**
  - (1) **In general—** A [State](/usc/42/1396b.md?p=w-7-D) demonstration [program](/usc/42/274l–1.md?p=4) under this section shall specify the eligible population groups consistent with paragraphs [(2)](#b-2) and [(3)](#b-3).
  - (2) **Eligibility limitations during initial demonstration period—** During the initial 5 years of the demonstration [program](/usc/42/274l–1.md?p=4) under this section, a [State](/usc/42/1396b.md?p=w-7-D) demonstration [program](/usc/42/274l–1.md?p=4) shall not apply to any of the following individuals:
    - (A) Individuals who are 65 years of age or older.
    - (B) Individuals who are disabled, regardless of whether or not their eligibility for medical assistance under this subchapter is based on such disability.
    - (C) Individuals who are eligible for medical assistance under this subchapter only because they are (or were within the previous 60 days) pregnant.
    - (D) Individuals who have been eligible for medical assistance for a continuous period of less than 3 months.
  - (3) **Additional limitations—** A [State](/usc/42/1396b.md?p=w-7-D) demonstration [program](/usc/42/274l–1.md?p=4) shall not apply to any individual within a [category](/usc/42/1395w–4.md?p=j-1) of individuals described in [section 1396u–7(a)(2)(B) of this title](/usc/42/1396u–7.md?p=a-2-B).
  - (4) **Limitations—**
    - (A) **State option—** This subsection shall not be construed as preventing a [State](/usc/42/1396b.md?p=w-7-D) from further limiting eligibility.
    - (B) **On enrollees in Medicaid managed care organizations—** Insofar as the [State](/usc/42/1396b.md?p=w-7-D) provides for eligibility of individuals who are enrolled in [Medicaid managed care organizations](/usc/42/1396b.md?p=m-1-A), such individuals may participate in the [State](/usc/42/1396b.md?p=w-7-D) demonstration [program](/usc/42/274l–1.md?p=4) only if the [State](/usc/42/1396b.md?p=w-7-D) provides assurances satisfactory to the [Secretary](/usc/42/1301.md?p=a-6) that the following conditions are met with respect to any such organization:
      - (i) In no case may the number of such individuals enrolled in the organization who participate in the [program](/usc/42/274l–1.md?p=4) exceed 5 percent of the total number of individuals enrolled in such organization.
      - (ii) The proportion of enrollees in the organization who so participate is not significantly disproportionate to the proportion of such enrollees in other such organizations who participate.
      - (iii) The [State](/usc/42/1396b.md?p=w-7-D) has provided for an appropriate adjustment in the per capita payments to the organization to account for such participation, taking into account differences in the likely use of health services between enrollees who so participate and enrollees who do not so participate.
  - (5) **Voluntary participation—** An [eligible individual](/usc/42/239.md?p=a-6) shall be enrolled in a [State](/usc/42/1396b.md?p=w-7-D) demonstration [program](/usc/42/274l–1.md?p=4) only if the individual voluntarily enrolls. Except in such hardship cases as the [Secretary](/usc/42/1301.md?p=a-6) shall specify, such an enrollment shall be effective for a period of 12 months, but may be extended for additional periods of 12 months each with the consent of the individual.
  - (6) **1-year moratorium for reenrollment—** An [eligible individual](/usc/42/239.md?p=a-6) who, for any reason, is disenrolled from a [State](/usc/42/1396b.md?p=w-7-D) demonstration [program](/usc/42/274l–1.md?p=4) conducted under this section shall not be permitted to reenroll in such [program](/usc/42/274l–1.md?p=4) before the end of the 1-year period that begins on the effective date of such disenrollment.
- (c) **Alternative benefits—**
  - (1) **In general—** The alternative benefits provided under this section shall consist, consistent with this subsection, of at least—
    - (A) coverage for medical expenses in a year for items and services for which benefits are otherwise provided under this subchapter after an annual deductible described in [paragraph (2)](#c-2) has been met; and
    - (B) contribution into a health opportunity account.

    Nothing in [subparagraph (A)](#c-1-A) shall be construed as preventing a [State](/usc/42/1396b.md?p=w-7-D) from providing for coverage of preventive care (referred to in [subsection (a)(3)](#a-3)) within the alternative benefits without regard to the annual deductible.

  - (2) **Annual deductible—** The amount of the annual deductible described in [paragraph (1)(A)](#c-1-A) shall be at least 100 percent, but no more than 110 percent, of the annualized amount of contributions to the health opportunity account under [subsection (d)(2)(A)(i)](#d-2-A-i), determined without regard to any limitation described in [subsection (d)(2)(C)(i)(II)](#d-2-C-i-II).
  - (3) **Access to negotiated provider payment rates—**
    - (A) **Fee-for-service enrollees—** In the case of an individual who is participating in a [State](/usc/42/1396b.md?p=w-7-D) demonstration [program](/usc/42/274l–1.md?p=4) and who is not enrolled with a [Medicaid managed care organization](/usc/42/1396b.md?p=m-1-A), the [State](/usc/42/1396b.md?p=w-7-D) shall provide that the individual may obtain [demonstration program Medicaid services](#c-3-D-i) from—
      - (i) any [participating provider](#c-3-D-ii) under this subchapter at the same payment rates that would be applicable to such services if the deductible described in [paragraph (1)(A)](#c-1-A) was not applicable; or
      - (ii) any other provider at payment rates that do not exceed 125 percent of the payment rate that would be applicable to such services furnished by a [participating provider](#c-3-D-ii) under this subchapter if the deductible described in [paragraph (1)(A)](#c-1-A) was not applicable.
    - (B) **Treatment under medicaid managed care plans—** In the case of an individual who is participating in a [State](/usc/42/1396b.md?p=w-7-D) demonstration [program](/usc/42/274l–1.md?p=4) and is enrolled with a [Medicaid managed care organization](/usc/42/1396b.md?p=m-1-A), the [State](/usc/42/1396b.md?p=w-7-D) shall enter into an arrangement with the organization under which the individual may obtain [demonstration program Medicaid services](#c-3-D-i) from any provider described in [clause (ii)](#c-3-A-ii) of subparagraph (A) at payment rates that do not exceed the payment rates that may be imposed under that clause.
    - (C) **Computation—** The payment rates described in subparagraphs [(A)](#c-3-A) and [(B)](#c-3-B) shall be computed without regard to any cost sharing that would be otherwise applicable under sections [1396o](/usc/42/1396o.md) and [1396o–1](/usc/42/1396o–1.md) of this title.
    - (D) **Definitions—** For purposes of this paragraph:
      - (i) The term “demonstration program Medicaid services” means, with respect to an individual participating in a [State](/usc/42/1396b.md?p=w-7-D) demonstration [program](/usc/42/274l–1.md?p=4), services for which the individual would be provided medical assistance under this subchapter but for the application of the deductible described in [paragraph (1)(A)](#c-1-A).
      - (ii) The term “participating provider” means—
        - (I) with respect to an individual described in [subparagraph (A)](#c-3-A), a [health care provider](/usc/42/300jj.md?p=3) that has entered into a participation [agreement](/usc/42/1320b–8.md?p=a-3-A) with the [State](/usc/42/1396b.md?p=w-7-D) for the provision of services to individuals entitled to benefits under the [State](/usc/42/1396b.md?p=w-7-D) plan; or
        - (II) with respect to an individual described in [subparagraph (B)](#c-3-B) who is enrolled in a [Medicaid managed care organization](/usc/42/1396b.md?p=m-1-A), a [health care provider](/usc/42/300jj.md?p=3) that has entered into an arrangement for the provision of services to enrollees of the organization under this subchapter.
  - (4) **No effect on subsequent benefits—** Except as provided under paragraphs [(1)](#c-1) and [(2)](#c-2), alternative benefits for an [eligible individual](/usc/42/239.md?p=a-6) shall consist of the benefits otherwise provided to the individual, [including](/usc/42/1301.md?p=b) cost sharing relating to such benefits.
  - (5) **Overriding cost sharing and comparability requirements for alternative benefits—** The provisions of this subchapter relating to cost sharing for benefits ([including](/usc/42/1301.md?p=b) sections [1396o](/usc/42/1396o.md) and [1396o–1](/usc/42/1396o–1.md) of this title) shall not apply with respect to benefits to which the annual deductible under [paragraph (1)(A)](#c-1-A) applies. The provisions of [section 1396a(a)(10)(B) of this title](/usc/42/1396a.md?p=a-10-B) (relating to comparability) shall not apply with respect to the provision of alternative benefits (as described in this subsection).
  - (6) **Treatment as medical assistance—** Subject to subparagraphs [(D)](#d-2-D) and [(E)](#d-2-E) of subsection (d)(2), payments for alternative benefits under this section ([including](/usc/42/1301.md?p=b) contributions into a health opportunity account) shall be treated as medical assistance for purposes of [section 1396b(a) of this title](/usc/42/1396b.md?p=a).
  - (7) **Use of tiered deductible and cost sharing—**
    - (A) **In general—** A [State](/usc/42/1396b.md?p=w-7-D)—
      - (i) may vary the amount of the annual deductible applied under [paragraph (1)(A)](#c-1-A) based on the [income](/usc/42/292s.md?p=c-4) of the [family](/usc/42/290ff–4.md?p=d-2) involved so long as it does not favor [families](/usc/42/12704.md?p=11) with higher [income](/usc/42/292s.md?p=c-4) over those with lower [income](/usc/42/292s.md?p=c-4); and
      - (ii) may vary the amount of the [maximum out-of-pocket cost sharing](#c-7-B) (as defined in [subparagraph (B)](#c-7-B)) based on the [income](/usc/42/292s.md?p=c-4) of the [family](/usc/42/290ff–4.md?p=d-2) involved so long as it does not favor [families](/usc/42/12704.md?p=11) with higher [income](/usc/42/292s.md?p=c-4) over those with lower [income](/usc/42/292s.md?p=c-4).
    - (B) **Maximum out-of-pocket cost sharing—** For purposes of [subparagraph (A)(ii)](#c-7-A-ii), the term “maximum out-of-pocket cost sharing” means, for an individual or [family](/usc/42/290ff–4.md?p=d-2), the amount by which the annual deductible level applied under [paragraph (1)(A)](#c-1-A) to the individual or [family](/usc/42/290ff–4.md?p=d-2) exceeds the balance in the health opportunity account for the individual or [family](/usc/42/290ff–4.md?p=d-2).
  - (8) **Contributions by employers—** Nothing in this section shall be construed as preventing an employer from providing health benefits coverage consisting of the coverage described in [paragraph (1)(A)](#c-1-A) to individuals who are provided alternative benefits under this section.
- (d) **Health opportunity account—**
  - (1) **In general—** For purposes of this section, the term “health opportunity account” means an account that meets the requirements of this subsection.
  - (2) **Contributions—**
    - (A) **In general—** No contribution may be made into a [health opportunity account](#d-1) except—
      - (i) contributions by the [State](/usc/42/1396b.md?p=w-7-D) under this subchapter; and
      - (ii) contributions by other [persons](/usc/42/1301.md?p=a-3) and entities, such as charitable organizations, as permitted under [section 1396b(w) of this title](/usc/42/1396b.md?p=w).
    - (B) **State contribution—** A [State](/usc/42/1396b.md?p=w-7-D) shall specify the contribution amount that shall be deposited under [subparagraph (A)(i)](#d-2-A-i) into a [health opportunity account](#d-1).
    - (C) **Limitation on annual State contribution provided and permitting imposition of maximum account balance—**
      - (i) **In general—** A [State](/usc/42/1396b.md?p=w-7-D)—
        - (I) may impose limitations on the maximum contributions that may be deposited under [subparagraph (A)(i)](#d-2-A-i) into a [health opportunity account](#d-1) in a year;
        - (II) may limit contributions into such an account once the balance in the account reaches a level specified by the [State](/usc/42/1396b.md?p=w-7-D); and
        - (III) subject to clauses [(ii)](#d-2-C-ii) and [(iii)](#d-2-C-iii) and [subparagraph (D)(i)](#d-2-D-i), may not provide contributions described in [subparagraph (A)(i)](#d-2-A-i) to a [health opportunity account](#d-1) on behalf of an individual or [family](/usc/42/290ff–4.md?p=d-2) to the extent the amount of such contributions ([including](/usc/42/1301.md?p=b) both [State](/usc/42/1396b.md?p=w-7-D) and Federal shares) exceeds, on an annual basis, $2,500 for each individual (or [family member](/usc/42/1320d–9.md?p=b-1)) who is an adult and $1,000 for each individual (or [family member](/usc/42/1320d–9.md?p=b-1)) who is a [child](/usc/42/416.md?p=e).
      - (ii) **Indexing of dollar limitations—** For each year after 2006, the dollar amounts specified in [clause (i)(III)](#d-2-C-i-III) shall be annually increased by the [Secretary](/usc/42/1301.md?p=a-6) by a percentage that reflects the annual percentage increase in the [medical care](/usc/42/1301.md?p=a-7) component of the consumer price index for all urban consumers.
      - (iii) **Budget neutral adjustment—** A [State](/usc/42/1396b.md?p=w-7-D) may provide for dollar limitations in excess of those specified in [clause (i)(III)](#d-2-C-i-III) (as increased under [clause (ii)](#d-2-C-ii)) for specified individuals if the [State](/usc/42/1396b.md?p=w-7-D) provides assurances satisfactory to the [Secretary](/usc/42/1301.md?p=a-6) that contributions otherwise made to other individuals will be reduced in a manner so as to provide for aggregate contributions that do not exceed the aggregate contributions that would otherwise be permitted under this subparagraph.
    - (D) **Limitations on Federal matching—**
      - (i) **State contribution—** A [State](/usc/42/1396b.md?p=w-7-D) may contribute under [subparagraph (A)(i)](#d-2-A-i) amounts to a [health opportunity account](#d-1) in excess of the limitations provided under [subparagraph (C)(i)(III)](#d-2-C-i-III), but no Federal financial participation shall be provided under [section 1396b(a) of this title](/usc/42/1396b.md?p=a) with respect to contributions in excess of such limitations.
      - (ii) **No FFP for private contributions—** No Federal financial participation shall be provided under [section 1396b(a) of this title](/usc/42/1396b.md?p=a) with respect to any contributions described in [subparagraph (A)(ii)](#d-2-A-ii) to a [health opportunity account](#d-1).
    - (E) **Application of different matching rates—** The [Secretary](/usc/42/1301.md?p=a-6) shall provide a method under which, for expenditures made from a [health opportunity account](#d-1) for [medical care](/usc/42/1301.md?p=a-7) for which the Federal matching rate under [section 1396b(a) of this title](/usc/42/1396b.md?p=a) exceeds the Federal medical assistance percentage, a [State](/usc/42/1396b.md?p=w-7-D) may obtain payment under such section at such higher matching rate for such expenditures.
  - (3) **Use—**
    - (A) **General uses—**
      - (i) **In general—** Subject to the succeeding provisions of this paragraph, amounts in a [health opportunity account](#d-1) may be used for payment of such health care expenditures as the [State](/usc/42/1396b.md?p=w-7-D) specifies.
      - (ii) **General limitation—** Subject to [subparagraph (B)(ii)](#d-3-B-ii), in no case shall such account be used for payment for health care expenditures that are not payment of [medical care](/usc/42/1301.md?p=a-7) (as defined by section 213(d) of the Internal Revenue Code of 1986).
      - (iii) **State restrictions—** In applying [clause (i)](#d-3-A-i), a [State](/usc/42/1396b.md?p=w-7-D) may restrict payment for—
        - (I) providers of items and services to providers that are licensed or otherwise authorized under [State](/usc/42/1396b.md?p=w-7-D) law to provide the item or service and may deny payment for such a provider on the basis that the provider has been found, whether with respect to this subchapter or any other health benefit [program](/usc/42/274l–1.md?p=4), to have failed to meet quality [standards](/usc/42/1320d.md?p=7) or to have committed 1 or more acts of fraud or [abuse](/usc/42/1397j.md?p=1); and
        - (II) items and services insofar as the [State](/usc/42/1396b.md?p=w-7-D) finds they are not medically appropriate or necessary.
      - (iv) **Electronic withdrawals—** The [State](/usc/42/1396b.md?p=w-7-D) demonstration [program](/usc/42/274l–1.md?p=4) shall provide for a method whereby withdrawals may be made from the account for such purposes using an electronic system and shall not permit withdrawals from the account in cash.
    - (B) **Maintenance of health opportunity account after becoming ineligible for public benefit—**
      - (i) **In general—** Notwithstanding any other provision of law, if an account holder of a [health opportunity account](#d-1) becomes ineligible for benefits under this subchapter because of an increase in [income](/usc/42/292s.md?p=c-4) or assets—
        - (I) no additional contribution shall be made into the account under [paragraph (2)(A)(i)](#d-2-A-i);
        - (II) subject to [clause (iii)](#d-3-B-iii), the balance in the account shall be reduced by 25 percent; and
        - (III) subject to the succeeding provisions of this subparagraph, the account shall remain available to the account holder for 3 years after the date on which the individual becomes ineligible for such benefits for withdrawals under the same terms and conditions as if the account holder remained eligible for such benefits, and such withdrawals shall be treated as medical assistance in accordance with [subsection (c)(6)](#c-6).
      - (ii) **Special rules—** Withdrawals under this subparagraph from an account—
        - (I) shall be available for the purchase of [health insurance coverage](/usc/42/1320d–9.md?p=b-2); and
        - (II) may, subject to [clause (iv)](#d-3-B-iv), be made available (at the option of the [State](/usc/42/1396b.md?p=w-7-D)) for such additional expenditures (such as job [training](/usc/42/285e–2.md?p=b-2) and tuition expenses) specified by the [State](/usc/42/1396b.md?p=w-7-D) (and approved by the [Secretary](/usc/42/1301.md?p=a-6)) as the [State](/usc/42/1396b.md?p=w-7-D) may specify.
      - (iii) **Exception from 25 percent savings to Government for private contributions—** [Clause (i)(II)](#d-3-B-i-II) shall not apply to the portion of the account that is attributable to contributions described in [paragraph (2)(A)(ii)](#d-2-A-ii). For purposes of accounting for such contributions, withdrawals from a [health opportunity account](#d-1) shall first be attributed to contributions described in [paragraph (2)(A)(i)](#d-2-A-i).
      - (iv) **Condition for non-health withdrawals—** No withdrawal may be made from an account under [clause (ii)(II)](#d-3-B-ii-II) unless the account holder has participated in the [program](/usc/42/274l–1.md?p=4) under this section for at least 1 year.
      - (v) **No requirement for continuation of coverage—** An account holder of a [health opportunity account](#d-1), after becoming ineligible for medical assistance under this subchapter, is not required to purchase high-deductible or other insurance as a condition of maintaining or using the account.
  - (4) **Administration—** A [State](/usc/42/1396b.md?p=w-7-D) may coordinate [administration](/usc/42/1301.md?p=a-10) of [health opportunity accounts](#d-1) through the use of a third party [administrator](/usc/42/4005.md?p=1) and reasonable expenditures for the use of such [administrator](/usc/42/4005.md?p=1) shall be reimbursable to the [State](/usc/42/1396b.md?p=w-7-D) in the same manner as other administrative expenditures under [section 1396b(a)(7) of this title](/usc/42/1396b.md?p=a-7).
  - (5) **Treatment—** Amounts in, or contributed to, a [health opportunity account](#d-1) shall not be counted as [income](/usc/42/292s.md?p=c-4) or assets for purposes of determining eligibility for benefits under this subchapter.
  - (6) **Unauthorized withdrawals—** A [State](/usc/42/1396b.md?p=w-7-D) may establish procedures—
    - (A) to penalize or [remove](/usc/42/9601.md?p=23) an individual from the [health opportunity account](#d-1) based on nonqualified withdrawals by the individual from such an account; and
    - (B) to recoup costs that derive from such nonqualified withdrawals.

# §1396v. References to laws directly affecting medicaid program

- (a) **Authority or requirements to cover additional individuals—** For provisions of law which make additional individuals eligible for medical assistance under this subchapter, see the following:
  - (1) **AFDC—**
    - (A) [Section 602(a)(32)](/usc/42/602.md)[^1] of this title (relating to individuals who are deemed [recipients](/usc/42/2996a.md?p=6) of aid but for whom a payment is not made).
    - (B) [Section 602(a)(37)](/usc/42/602.md)[^1] of this title (relating to individuals who lose AFDC eligibility due to increased earnings).
    - (C) [Section 606(h)](/usc/42/606.md)[^1] of this title (relating to individuals who lose AFDC eligibility due to increased collection of [child](/usc/42/416.md?p=e) or spousal support).
    - (D) Section 682(e)(6)[^1] of this title (relating to certain individuals participating in work supplementation [programs](/usc/42/274l–1.md?p=4)).
  - (2) **SSI—**
    - (A) [Section 1382(e) of this title](/usc/42/1382.md?p=e) (relating to [treatment](/usc/42/11851.md?p=11) of couples sharing an accommodation in a [facility](/usc/42/11049.md?p=4)).
    - (B) [Section 1382h of this title](/usc/42/1382h.md) (relating to benefits for individuals who perform substantial gainful activity despite severe medical impairment).
    - (C) [Section 1383c(b) of this title](/usc/42/1383c.md?p=b) (relating to preservation of benefit status for disabled [widows](/usc/42/416.md?p=c-1) and [widowers](/usc/42/416.md?p=g-1) who lost SSI benefits because of 1983 changes in actuarial reduction formula).
    - (D) [Section 1383c(c) of this title](/usc/42/1383c.md?p=c) (relating to individuals who lose eligibility for SSI benefits due to entitlement to [child](/usc/42/416.md?p=e)’s insurance benefits under [section 402(d) of this title](/usc/42/402.md?p=d)).
    - (E) [Section 1383c(d) of this title](/usc/42/1383c.md?p=d) (relating to individuals who lose eligibility for SSI benefits due to entitlement to early [widow](/usc/42/416.md?p=c-1)’s or [widower](/usc/42/416.md?p=g-1)’s insurance benefits under section [402(e)](/usc/42/402.md?p=e) or [(f)](/usc/42/402.md?p=f) of this title).
  - (3) **Foster care and adoption assistance—** Sections [672(h)](/usc/42/672.md?p=h) and [673(b)](/usc/42/673.md?p=b) of this title (relating to medical assistance for [children](/usc/42/256e.md?p=g-2) in foster care and for adopted [children](/usc/42/256e.md?p=g-2)).
  - (4) **Refugee assistance—** [Section 1522(e)(5) of title 8](/usc/8/1522.md?p=e-5) (relating to medical assistance for certain refugees).
  - (5) **Miscellaneous—**
    - (A) Section 230 of Public Law 93–66 (relating to deeming eligible for medical assistance certain essential [persons](/usc/42/1301.md?p=a-3)).
    - (B) Section 231 of Public Law 93–66 (relating to deeming eligible for medical assistance certain [persons](/usc/42/1301.md?p=a-3) in medical institutions).
    - (C) Section 232 of Public Law 93–66 (relating to deeming eligible for medical assistance certain blind and disabled medically indigent [persons](/usc/42/1301.md?p=a-3)).
    - (D) Section 13(c) of Public Law 93–233 (relating to deeming eligible for medical assistance certain individuals receiving mandatory [State supplementary payments](/usc/42/1396d.md?p=j)).
    - (E) Section 503 of Public Law 94–566 (relating to deeming eligible for medical assistance certain individuals who would be eligible for [supplemental security income benefits](/usc/42/1382i.md?p=b-2) but for cost-of-living increases in [social](/usc/42/1397j.md?p=20) security benefits).
    - (F) Section 310(b)(1) of Public Law 96–272 (relating to continuing [medicaid](/usc/42/1396b.md?p=w-3-E-iii-III-aa) eligibility for certain [recipients](/usc/42/2996a.md?p=6) of Department of Veterans Affairs pensions).
- (b) **Additional State plan requirements—** For other provisions of law that establish additional requirements for [State](/usc/42/1396b.md?p=w-7-D) plans to be approved under this subchapter, see the following:
  - (1) [Section 1382g of this title](/usc/42/1382g.md) (relating to requirement for operation of certain [State](/usc/42/1396b.md?p=w-7-D) supplementation [programs](/usc/42/274l–1.md?p=4)).
  - (2) Section 212(a) of Public Law 93–66 (relating to requiring mandatory minimum [State](/usc/42/1396b.md?p=w-7-D) supplementation of SSI benefits [program](/usc/42/274l–1.md?p=4)).