(1) In general Subject to the succeeding provisions of this subsection, a State may provide through a State plan amendment for the provision of medical assistance for home and community-based services (within the scope of services described in paragraph (4)(B) of subsection (c) for which the Secretary has the authority to approve a waiver and not including room and board) for individuals eligible for medical assistance under the State plan whose income does not exceed 150 percent of the poverty line (as defined in section 1397jj(c)(5) of this title ), without determining that but for the provision of such services the individuals would require the level of care provided in a hospital or a nursing facility or intermediate care facility for the mentally retarded, but only if the State meets the following requirements: (A) Needs-based criteria for eligibility for, and receipt of, home and community-based services The State establishes needs-based criteria for determining an individual’s eligibility under the State plan for medical assistance for such home and community-based services, and if the individual is eligible for such services, the specific home and community-based services that the individual will receive. (B) Establishment of more stringent needs-based eligibility criteria for institutionalized care The State establishes needs-based criteria for determining whether an individual requires the level of care provided in a hospital, a nursing facility, or an intermediate care facility for the mentally retarded under the State plan or under any waiver of such plan that are more stringent than the needs-based criteria established under subparagraph (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 submits to the Secretary, in such form and manner, and upon such frequency as the Secretary shall specify, the projected number of individuals to be provided home and community-based services. (D) Criteria based on individual assessment (i) In general The criteria established by the State for purposes of subparagraphs (A) and (B) requires an assessment of an individual’s support needs and capabilities, and may take into account the inability of the individual 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 determines to be appropriate. (ii) Adjustment authority The State plan amendment provides the State with the option to modify the criteria established under subparagraph (A) (without having to obtain prior approval from the Secretary) in the event that the enrollment of individuals eligible for home and community-based services exceeds the projected enrollment submitted for purposes of subparagraph (C), but only if— (I) the State provides at least 60 days notice to the Secretary and the public of the proposed modification; (II) the State deems an individual 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 to continue to be eligible for such services after the effective date of the modification and until such time as the individual no longer meets the standard for receipt of such services under such pre-modified criteria; and (III) after the effective date of such modification, the State, at a minimum, applies the criteria for determining whether an individual requires the level of care provided in a hospital, a nursing facility, or an intermediate care facility for the mentally retarded under the State plan or under any waiver of such plan which applied prior to the application of the more stringent criteria developed under subparagraph (B). (E) Independent evaluation and assessment (i) Eligibility determination The State uses an independent evaluation for making the determinations described in subparagraphs (A) and (B). (ii) Assessment In the case of an individual who is determined to be eligible for home and community-based services, the State uses an independent assessment, based on the needs of the individual to— (I) determine a necessary level of services and supports to be provided, consistent with an individual’s physical and mental capacity; (II) prevent the provision of unnecessary or inappropriate care; and (III) establish an individualized care plan for the individual in accordance with subparagraph (G). (F) Assessment The independent assessment required under subparagraph (E)(ii) shall include the following: (i) An objective evaluation of an individual’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 by an individual trained in the assessment and evaluation of individuals whose physical or mental conditions trigger a potential need for home and community-based services. (iii) Where appropriate, consultation with the individual’s family, spouse, guardian, or other responsible individual. (iv) Consultation with appropriate treating and consulting health and support professionals caring for the individual. (v) An examination of the individual’s relevant history, medical records, and care and support needs, guided by best practices and research on effective strategies that result in improved health and quality of life outcomes. (vi) If the State offers individuals 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 or the individual’s representative to self-direct the purchase of, or control the receipt of, such services if the individual so elects. (G) Individualized care plan (i) In general In the case of an individual who is determined to be eligible for home and community-based services, the State uses the independent assessment required under subparagraph (E)(ii) to establish a written individualized care plan for the individual. (ii) Plan requirements The State ensures that the individualized care plan for an individual— (I) is developed— (aa) in consultation with the individual, the individual’s treating physician, health care or support professional, or other appropriate individuals, as defined by the State, and, where appropriate the individual’s family, caregiver, or representative; and (bb) taking into account the extent of, and need for, any family or other supports for the individual; (II) identifies the necessary home and community-based services to be furnished to the individual (or, if the individual elects to self-direct the purchase of, or control the receipt of, such services, funded for the individual); and (III) is reviewed at least annually and as needed when there is a significant change in the individual’s circumstances. (iii) State option to offer election for self-directed services (I) Individual choice At the option of the State, the State may allow an individual or the individual’s representative to elect to receive self-directed home and community-based services in a manner which gives them the most control over such services consistent with the individual’s abilities and the requirements of subclauses (II) and (III). (II) Self-directed services The term “self-directed” means, with respect to the home and community-based services offered under the State plan amendment, such services for the individual which are planned and purchased under the direction and control of such individual or the individual’s authorized representative, including the amount, duration, scope, provider, and location of such services, under the State plan consistent with the following requirements: (aa) Assessment There is an assessment of the needs, capabilities, and preferences of the individual with respect to such services. (bb) Service plan Based on such assessment, there is developed jointly with such individual or the individual’s authorized representative a plan for such services for such individual that is approved by the State and that satisfies the requirements of subclause (III). (III) Plan requirements For purposes of subclause (II)(bb), the requirements of this subclause are that the plan— (aa) specifies those services which the individual or the individual’s authorized representative would be responsible for directing; (bb) identifies the methods by which the individual or the individual’s authorized representative will select, manage, and dismiss providers of such services; (cc) specifies the role of family members and others whose participation is sought by the individual or the individual’s authorized representative with respect to such services; (dd) is developed through a person-centered process that is directed by the individual or the individual’s authorized representative, builds upon the individual’s capacity to engage in activities that promote community life and that respects the individual’s preferences, choices, and abilities, and involves families, friends, and professionals as desired or required by the individual or the individual’s authorized representative; (ee) includes appropriate risk management techniques that recognize the roles and sharing of responsibilities in obtaining services in a self-directed manner and assure the appropriateness of such plan based upon the resources and capabilities of the individual or the individual’s authorized representative; 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 or the individual’s authorized representative. (IV) Budget process With respect to individualized budgets described in subclause (III)(ff), the State 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 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 ensures that the provision of home and community-based services meets Federal and State guidelines for quality assurance. (ii) Conflict of interest standards The State establishes standards for the conduct of the independent evaluation and the independent assessment to safeguard against conflicts of interest. (I) Redeterminations and appeals The State 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 plan. (J) Presumptive eligibility for assessment The State, at its option, elects to provide for a period of presumptive eligibility (not to exceed a period of 60 days) only for those individuals that the State 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) to determine an individual’s eligibility for such services and if the individual is so eligible, the specific home and community-based services that the individual will receive.
42 USC § 1396n(i)(1)
None identified, default scope is assumed to be the parent (subchapter XIX) of this section.