Patient Protection and Affordable Care Act/Title VIII

←

Title VII

Patient Protection and Affordable Care Act
the United States Senate

Title VIII

Title IX

→

577366Patient Protection and Affordable Care Act — Title VIIIthe United States Senate

TITLE VIII--CLASS ACT

SEC. 8001. SHORT TITLE OF TITLE.

This title may be cited as the `Community Living Assistance Services and Supports Act' or the `CLASS Act'.

SEC. 8002. ESTABLISHMENT OF NATIONAL VOLUNTARY INSURANCE PROGRAM FOR PURCHASING COMMUNITY LIVING ASSISTANCE SERVICES AND SUPPORT.

(a) Establishment of CLASS Program-
- (1) IN GENERAL- The Public Health Service Act (42 U.S.C. 201 et seq.), as amended by section 4302(a), is amended by adding at the end the following:

TITLE XXXII--COMMUNITY LIVING ASSISTANCE SERVICES AND SUPPORTS

SEC. 3201. PURPOSE.

The purpose of this title is to establish a national voluntary insurance program for purchasing community living assistance services and supports in order to--
- (1) provide individuals with functional limitations with tools that will allow them to maintain their personal and financial independence and live in the community through a new financing strategy for community living assistance services and supports;
- (2) establish an infrastructure that will help address the Nation's community living assistance services and supports needs;
- (3) alleviate burdens on family caregivers; and
- (4) address institutional bias by providing a financing mechanism that supports personal choice and independence to live in the community.

SEC. 3202. DEFINITIONS.

In this title:
- (1) ACTIVE ENROLLEE- The term `active enrollee' means an individual who is enrolled in the CLASS program in accordance with section 3204 and who has paid any premiums due to maintain such enrollment.
- (2) ACTIVELY EMPLOYED- The term `actively employed' means an individual who--
  - (A) is reporting for work at the individual's usual place of employment or at another location to which the individual is required to travel because of the individual's employment (or in the case of an individual who is a member of the uniformed services, is on active duty and is physically able to perform the duties of the individual's position); and
  - (B) is able to perform all the usual and customary duties of the individual's employment on the individual's regular work schedule.
- (3) ACTIVITIES OF DAILY LIVING- The term `activities of daily living' means each of the following activities specified in section 7702B(c)(2)(B) of the Internal Revenue Code of 1986:
  - (A) Eating.
  - (B) Toileting.
  - (C) Transferring.
  - (D) Bathing.
  - (E) Dressing.
  - (F) Continence.
- (4) CLASS PROGRAM- The term `CLASS program' means the program established under this title.
- (5) ELIGIBILITY ASSESSMENT SYSTEM- The term `Eligibility Assessment System' means the entity established by the Secretary under section 3205(a)(2) to make functional eligibility determinations for the CLASS program.
- (6) ELIGIBLE BENEFICIARY-
  - (A) IN GENERAL- The term `eligible beneficiary' means any individual who is an active enrollee in the CLASS program and, as of the date described in subparagraph (B)--
    - (i) has paid premiums for enrollment in such program for at least 60 months;
    - (ii) has earned, with respect to at least 3 calendar years that occur during the first 60 months for which the individual has paid premiums for enrollment in the program, at least an amount equal to the amount of wages and self-employment income which an individual must have in order to be credited with a quarter of coverage under section 213(d) of the Social Security Act for the year; and
    - (iii) has paid premiums for enrollment in such program for at least 24 consecutive months, if a lapse in premium payments of more than 3 months has occurred during the period that begins on the date of the individual's enrollment and ends on the date of such determination.
  - (B) DATE DESCRIBED- For purposes of subparagraph (A), the date described in this subparagraph is the date on which the individual is determined to have a functional limitation described in section 3203(a)(1)(C) that is expected to last for a continuous period of more than 90 days.
  - (C) REGULATIONS- The Secretary shall promulgate regulations specifying exceptions to the minimum earnings requirements under subparagraph (A)(ii) for purposes of being considered an eligible beneficiary for certain populations.
- (7) HOSPITAL; NURSING FACILITY; INTERMEDIATE CARE FACILITY FOR THE MENTALLY RETARDED; INSTITUTION FOR MENTAL DISEASES- The terms `hospital', `nursing facility', `intermediate care facility for the mentally retarded', and `institution for mental diseases' have the meanings given such terms for purposes of Medicaid.
- (8) CLASS INDEPENDENCE ADVISORY COUNCIL- The term `CLASS Independence Advisory Council' or `Council' means the Advisory Council established under section 3207 to advise the Secretary.
- (9) CLASS INDEPENDENCE BENEFIT PLAN- The term `CLASS Independence Benefit Plan' means the benefit plan developed and designated by the Secretary in accordance with section 3203.
- (10) CLASS INDEPENDENCE FUND- The term `CLASS Independence Fund' or `Fund' means the fund established under section 3206.
- (11) MEDICAID- The term `Medicaid' means the program established under title XIX of the Social Security Act (42 U.S.C. 1396 et seq.).
- (12) POVERTY LINE- The term `poverty line' has the meaning given that term in section 2110(c)(5) of the Social Security Act (42 U.S.C. 1397jj(c)(5)).
- (13) PROTECTION AND ADVOCACY SYSTEM- The term `Protection and Advocacy System' means the system for each State established under section 143 of the Developmental Disabilities Assistance and Bill of Rights Act of 2000 (42 U.S.C. 15043).

SEC. 3203. CLASS INDEPENDENCE BENEFIT PLAN.

(a) Process for Development-
- (1) IN GENERAL- The Secretary, in consultation with appropriate actuaries and other experts, shall develop at least 3 actuarially sound benefit plans as alternatives for consideration for designation by the Secretary as the CLASS Independence Benefit Plan under which eligible beneficiaries shall receive benefits under this title. Each of the plan alternatives developed shall be designed to provide eligible beneficiaries with the benefits described in section 3205 consistent with the following requirements:
  - (A) PREMIUMS-
    - (i) IN GENERAL- Beginning with the first year of the CLASS program, and for each year thereafter, subject to clauses (ii) and (iii), the Secretary shall establish all premiums to be paid by enrollees for the year based on an actuarial analysis of the 75-year costs of the program that ensures solvency throughout such 75-year period.
    - (ii) NOMINAL PREMIUM FOR POOREST INDIVIDUALS AND FULL-TIME STUDENTS-
      - (I) IN GENERAL- The monthly premium for enrollment in the CLASS program shall not exceed the applicable dollar amount per month determined under subclause (II) for--

<TTITLE> `(aa) any individual whose income does not exceed the poverty line; and</TTITLE> <TTITLE> `(bb) any individual who has not attained age 22, and is actively employed during any period in which the individual is a full-time student (as determined by the Secretary).</TTITLE>

*****(II) APPLICABLE DOLLAR AMOUNT- The applicable dollar amount described in this subclause is the amount equal to $5, increased by the percentage increase in the consumer price index for all urban consumers (U.S. city average) for each year occurring after 2009 and before such year.

- - - (iii) CLASS INDEPENDENCE FUND RESERVES- At such time as the CLASS program has been in operation for 10 years, the Secretary shall establish all premiums to be paid by enrollees for the year based on an actuarial analysis that accumulated reserves in the CLASS Independence Fund would not decrease in that year. At such time as the Secretary determines the CLASS program demonstrates a sustained ability to finance expected yearly expenses with expected yearly premiums and interest credited to the CLASS Independence Fund, the Secretary may decrease the required amount of CLASS Independence Fund reserves.
  - (B) VESTING PERIOD- A 5-year vesting period for eligibility for benefits.
  - (C) BENEFIT TRIGGERS- A benefit trigger for provision of benefits that requires a determination that an individual has a functional limitation, as certified by a licensed health care practitioner, described in any of the following clauses that is expected to last for a continuous period of more than 90 days:
    - (i) The individual is determined to be unable to perform at least the minimum number (which may be 2 or 3) of activities of daily living as are required under the plan for the provision of benefits without substantial assistance (as defined by the Secretary) from another individual.
    - (ii) The individual requires substantial supervision to protect the individual from threats to health and safety due to substantial cognitive impairment.
    - (iii) The individual has a level of functional limitation similar (as determined under regulations prescribed by the Secretary) to the level of functional limitation described in clause (i) or (ii).
  - (D) CASH BENEFIT- Payment of a cash benefit that satisfies the following requirements:
    - (i) MINIMUM REQUIRED AMOUNT- The benefit amount provides an eligible beneficiary with not less than an average of $50 per day (as determined based on the reasonably expected distribution of beneficiaries receiving benefits at various benefit levels).
    - (ii) AMOUNT SCALED TO FUNCTIONAL ABILITY- The benefit amount is varied based on a scale of functional ability, with not less than 2, and not more than 6, benefit level amounts.
    - (iii) DAILY OR WEEKLY- The benefit is paid on a daily or weekly basis.
    - (iv) NO LIFETIME OR AGGREGATE LIMIT- The benefit is not subject to any lifetime or aggregate limit.
  - (E) COORDINATION WITH SUPPLEMENTAL COVERAGE OBTAINED THROUGH THE EXCHANGE- The benefits allow for coordination with any supplemental coverage purchased through an Exchange established under section 1311 of the Patient Protection and Affordable Care Act.
- (2) REVIEW AND RECOMMENDATION BY THE CLASS INDEPENDENCE ADVISORY COUNCIL- The CLASS Independence Advisory Council shall--
  - (A) evaluate the alternative benefit plans developed under paragraph (1); and
  - (B) recommend for designation as the CLASS Independence Benefit Plan for offering to the public the plan that the Council determines best balances price and benefits to meet enrollees' needs in an actuarially sound manner, while optimizing the probability of the long-term sustainability of the CLASS program.
- (3) DESIGNATION BY THE SECRETARY- Not later than October 1, 2012, the Secretary, taking into consideration the recommendation of the CLASS Independence Advisory Council under paragraph (2)(B), shall designate a benefit plan as the CLASS Independence Benefit Plan. The Secretary shall publish such designation, along with details of the plan and the reasons for the selection by the Secretary, in a final rule that allows for a period of public comment.
(b) Additional Premium Requirements-
- (1) ADJUSTMENT OF PREMIUMS-
  - (A) IN GENERAL- Except as provided in subparagraphs (B), (C), (D), and (E), the amount of the monthly premium determined for an individual upon such individual's enrollment in the CLASS program shall remain the same for as long as the individual is an active enrollee in the program.
  - (B) RECALCULATED PREMIUM IF REQUIRED FOR PROGRAM SOLVENCY-
    - (i) IN GENERAL- Subject to clause (ii), if the Secretary determines, based on the most recent report of the Board of Trustees of the CLASS Independence Fund, the advice of the CLASS Independence Advisory Council, and the annual report of the Inspector General of the Department of Health and Human Services, and waste, fraud, and abuse, or such other information as the Secretary determines appropriate, that the monthly premiums and income to the CLASS Independence Fund for a year are projected to be insufficient with respect to the 20-year period that begins with that year, the Secretary shall adjust the monthly premiums for individuals enrolled in the CLASS program as necessary (but maintaining a nominal premium for enrollees whose income is below the poverty line or who are full-time students actively employed).
    - (ii) EXEMPTION FROM INCREASE- Any increase in a monthly premium imposed as result of a determination described in clause (i) shall not apply with respect to the monthly premium of any active enrollee who--
      - (I) has attained age 65;
      - (II) has paid premiums for enrollment in the program for at least 20 years; and
      - (III) is not actively employed.
  - (C) RECALCULATED PREMIUM IF REENROLLMENT AFTER MORE THAN A 3-MONTH LAPSE-
    - (i) IN GENERAL- The reenrollment of an individual after a 90-day period during which the individual failed to pay the monthly premium required to maintain the individual's enrollment in the CLASS program shall be treated as an initial enrollment for purposes of age-adjusting the premium for enrollment in the program.
    - (ii) CREDIT FOR PRIOR MONTHS IF REENROLLED WITHIN 5 YEARS- An individual who reenrolls in the CLASS program after such a 90-day period and before the end of the 5-year period that begins with the first month for which the individual failed to pay the monthly premium required to maintain the individual's enrollment in the program shall be--
      - (I) credited with any months of paid premiums that accrued prior to the individual's lapse in enrollment; and
      - (II) notwithstanding the total amount of any such credited months, required to satisfy section 3202(6)(A)(ii) before being eligible to receive benefits.
  - (D) NO LONGER STATUS AS A FULL-TIME STUDENT- An individual subject to a nominal premium on the basis of being described in subsection (a)(1)(A)(ii)(I)(bb) who ceases to be described in that subsection, beginning with the first month following the month in which the individual ceases to be so described, shall be subject to the same monthly premium as the monthly premium that applies to an individual of the same age who first enrolls in the program under the most similar circumstances as the individual (such as the first year of eligibility for enrollment in the program or in a subsequent year).
  - (E) PENALTY FOR REENOLLMENT AFTER 5-YEAR LAPSE- In the case of an individual who reenrolls in the CLASS program after the end of the 5-year period described in subparagraph (C)(ii), the monthly premium required for the individual shall be the age-adjusted premium that would be applicable to an initially enrolling individual who is the same age as the reenrolling individual, increased by the greater of--
    - (i) an amount that the Secretary determines is actuarially sound for each month that occurs during the period that begins with the first month for which the individual failed to pay the monthly premium required to maintain the individual's enrollment in the CLASS program and ends with the month preceding the month in which the reenollment is effective; or
    - (ii) 1 percent of the applicable age-adjusted premium for each such month occurring in such period.
- (2) ADMINISTRATIVE EXPENSES- In determining the monthly premiums for the CLASS program the Secretary may factor in costs for administering the program, not to exceed for any year in which the program is in effect under this title, an amount equal to 3 percent of all premiums paid during the year.
- (3) NO UNDERWRITING REQUIREMENTS- No underwriting (other than on the basis of age in accordance with subparagraphs (D) and (E) of paragraph (1)) shall be used to--
  - (A) determine the monthly premium for enrollment in the CLASS program; or
  - (B) prevent an individual from enrolling in the program.
(c) Self-attestation and Verification of Income- The Secretary shall establish procedures to--
- (1) permit an individual who is eligible for the nominal premium required under subsection (a)(1)(A)(ii), as part of their automatic enrollment in the CLASS program, to self-attest that their income does not exceed the poverty line or that their status as a full-time student who is actively employed;
- (2) verify, using procedures similar to the procedures used by the Commissioner of Social Security under section 1631(e)(1)(B)(ii) of the Social Security Act and consistent with the requirements applicable to the conveyance of data and information under section 1942 of such Act, the validity of such self-attestation; and
- (3) require an individual to confirm, on at least an annual basis, that their income does not exceed the poverty line or that they continue to maintain such status.

SEC. 3204. ENROLLMENT AND DISENROLLMENT REQUIREMENTS.

(a) Automatic Enrollment-
- (1) IN GENERAL- Subject to paragraph (2), the Secretary, in coordination with the Secretary of the Treasury, shall establish procedures under which each individual described in subsection (c) may be automatically enrolled in the CLASS program by an employer of such individual in the same manner as an employer may elect to automatically enroll employees in a plan under section 401(k), 403(b), or 457 of the Internal Revenue Code of 1986.
- (2) ALTERNATIVE ENROLLMENT PROCEDURES- The procedures established under paragraph (1) shall provide for an alternative enrollment process for an individual described in subsection (c) in the case of such an individual--
  - (A) who is self-employed;
  - (B) who has more than 1 employer; or
  - (C) whose employer does not elect to participate in the automatic enrollment process established by the Secretary.
- (3) ADMINISTRATION-
  - (A) IN GENERAL- The Secretary and the Secretary of the Treasury shall, by regulation, establish procedures to ensure that an individual is not automatically enrolled in the CLASS program by more than 1 employer.
  - (B) FORM- Enrollment in the CLASS program shall be made in such manner as the Secretary may prescribe in order to ensure ease of administration.
(b) Election to Opt-Out- An individual described in subsection (c) may elect to waive enrollment in the CLASS program at any time in such form and manner as the Secretary and the Secretary of the Treasury shall prescribe.
(c) Individual Described- For purposes of enrolling in the CLASS program, an individual described in this paragraph is an individual--
- (1) who has attained age 18;
- (2) who--
  - (A) receives wages on which there is imposed a tax under section 3201(a) of the Internal Revenue Code of 1986; or
  - (B) derives self-employment income on which there is imposed a tax under section 1401(a) of the Internal Revenue Code of 1986;
- (3) who is actively employed; and
- (4) who is not--
  - (A) a patient in a hospital or nursing facility, an intermediate care facility for the mentally retarded, or an institution for mental diseases and receiving medical assistance under Medicaid; or
  - (B) confined in a jail, prison, other penal institution or correctional facility, or by court order pursuant to conviction of a criminal offense or in connection with a verdict or finding described in section 202(x)(1)(A)(ii) of the Social Security Act (42 U.S.C. 402(x)(1)(A)(ii)).
(d) Rule of Construction- Nothing in this title shall be construed as requiring an active enrollee to continue to satisfy subparagraph (B) or (C) of subsection (c)(1) in order to maintain enrollment in the CLASS program.
(e) Payment-
- (1) PAYROLL DEDUCTION- An amount equal to the monthly premium for the enrollment in the CLASS program of an individual shall be deducted from the wages or self-employment income of such individual in accordance with such procedures as the Secretary, in coordination with the Secretary of the Treasury, shall establish for employers who elect to deduct and withhold such premiums on behalf of enrolled employees.
- (2) ALTERNATIVE PAYMENT MECHANISM- The Secretary, in coordination with the Secretary of the Treasury, shall establish alternative procedures for the payment of monthly premiums by an individual enrolled in the CLASS program--
  - (A) who does not have an employer who elects to deduct and withhold premiums in accordance with subparagraph (A); or
  - (B) who does not earn wages or derive self-employment income.
(f) Transfer of Premiums Collected-
- (1) IN GENERAL- During each calendar year the Secretary of the Treasury shall deposit into the CLASS Independence Fund a total amount equal, in the aggregate, to 100 percent of the premiums collected during that year.
- (2) TRANSFERS BASED ON ESTIMATES- The amount deposited pursuant to paragraph (1) shall be transferred in at least monthly payments to the CLASS Independence Fund on the basis of estimates by the Secretary and certified to the Secretary of the Treasury of the amounts collected in accordance with subparagraphs (A) and (B) of paragraph (5). Proper adjustments shall be made in amounts subsequently transferred to the Fund to the extent prior estimates were in excess of, or were less than, actual amounts collected.
(g) Other Enrollment and Disenrollment Opportunities- The Secretary, in coordination with the Secretary of the Treasury, shall establish procedures under which--
- (1) an individual who, in the year of the individual's initial eligibility to enroll in the CLASS program, has elected to waive enrollment in the program, is eligible to elect to enroll in the program, in such form and manner as the Secretaries shall establish, only during an open enrollment period established by the Secretaries that is specific to the individual and that may not occur more frequently than biennially after the date on which the individual first elected to waive enrollment in the program; and
- (2) an individual shall only be permitted to disenroll from the program (other than for nonpayment of premiums) during an annual disenrollment period established by the Secretaries and in such form and manner as the Secretaries shall establish.

SEC. 3205. BENEFITS.

(a) Determination of Eligibility-
- (1) APPLICATION FOR RECEIPT OF BENEFITS- The Secretary shall establish procedures under which an active enrollee shall apply for receipt of benefits under the CLASS Independence Benefit Plan.
- (2) ELIGIBILITY ASSESSMENTS-
  - (A) IN GENERAL- Not later than January 1, 2012, the Secretary shall--
    - (i) establish an Eligibility Assessment System (other than a service with which the Commissioner of Social Security has entered into an agreement, with respect to any State, to make disability determinations for purposes of title II or XVI of the Social Security Act) to provide for eligibility assessments of active enrollees who apply for receipt of benefits;
    - (ii) enter into an agreement with the Protection and Advocacy System for each State to provide advocacy services in accordance with subsection (d); and
    - (iii) enter into an agreement with public and private entities to provide advice and assistance counseling in accordance with subsection (e).
  - (B) REGULATIONS- The Secretary shall promulgate regulations to develop an expedited nationally equitable eligibility determination process, as certified by a licensed health care practitioner, an appeals process, and a redetermination process, as certified by a licensed health care practitioner, including whether an active enrollee is eligible for a cash benefit under the program and if so, the amount of the cash benefit (in accordance the sliding scale established under the plan).
  - (C) PRESUMPTIVE ELIGIBILITY FOR CERTAIN INSTITUTIONALIZED ENROLLEES PLANNING TO DISCHARGE- An active enrollee shall be deemed presumptively eligible if the enrollee--
    - (i) has applied for, and attests is eligible for, the maximum cash benefit available under the sliding scale established under the CLASS Independence Benefit Plan;
    - (ii) is a patient in a hospital (but only if the hospitalization is for long-term care), nursing facility, intermediate care facility for the mentally retarded, or an institution for mental diseases; and
    - (iii) is in the process of, or about to begin the process of, planning to discharge from the hospital, facility, or institution, or within 60 days from the date of discharge from the hospital, facility, or institution.
  - (D) APPEALS- The Secretary shall establish procedures under which an applicant for benefits under the CLASS Independence Benefit Plan shall be guaranteed the right to appeal an adverse determination.
(b) Benefits- An eligible beneficiary shall receive the following benefits under the CLASS Independence Benefit Plan:
- (1) CASH BENEFIT- A cash benefit established by the Secretary in accordance with the requirements of section 3203(a)(1)(D) that--
  - (A) the first year in which beneficiaries receive the benefits under the plan, is not less than the average dollar amount specified in clause (i) of such section; and
  - (B) for any subsequent year, is not less than the average per day dollar limit applicable under this subparagraph for the preceding year, increased by the percentage increase in the consumer price index for all urban consumers (U.S. city average) over the previous year.
- (2) ADVOCACY SERVICES- Advocacy services in accordance with subsection (d).
- (3) ADVICE AND ASSISTANCE COUNSELING- Advice and assistance counseling in accordance with subsection (e).
- (4) ADMINISTRATIVE EXPENSES- Advocacy services and advise and assistance counseling services under paragraphs (2) and (3) of this subsection shall be included as administrative expenses under section 3203(b)(3).
(c) Payment of Benefits-
- (1) LIFE INDEPENDENCE ACCOUNT-
  - (A) IN GENERAL- The Secretary shall establish procedures for administering the provision of benefits to eligible beneficiaries under the CLASS Independence Benefit Plan, including the payment of the cash benefit for the beneficiary into a Life Independence Account established by the Secretary on behalf of each eligible beneficiary.
  - (B) USE OF CASH BENEFITS- Cash benefits paid into a Life Independence Account of an eligible beneficiary shall be used to purchase nonmedical services and supports that the beneficiary needs to maintain his or her independence at home or in another residential setting of their choice in the community, including (but not limited to) home modifications, assistive technology, accessible transportation, homemaker services, respite care, personal assistance services, home care aides, and nursing support. Nothing in the preceding sentence shall prevent an eligible beneficiary from using cash benefits paid into a Life Independence Account for obtaining assistance with decision making concerning medical care, including the right to accept or refuse medical or surgical treatment and the right to formulate advance directives or other written instructions recognized under State law, such as a living will or durable power of attorney for health care, in the case that an injury or illness causes the individual to be unable to make health care decisions.
  - (C) ELECTRONIC MANAGEMENT OF FUNDS- The Secretary shall establish procedures for--
    - (i) crediting an account established on behalf of a beneficiary with the beneficiary's cash daily benefit;
    - (ii) allowing the beneficiary to access such account through debit cards; and
    - (iii) accounting for withdrawals by the beneficiary from such account.
  - (D) PRIMARY PAYOR RULES FOR BENEFICIARIES WHO ARE ENROLLED IN MEDICAID- In the case of an eligible beneficiary who is enrolled in Medicaid, the following payment rules shall apply:
    - (i) INSTITUTIONALIZED BENEFICIARY- If the beneficiary is a patient in a hospital, nursing facility, intermediate care facility for the mentally retarded, or an institution for mental diseases, the beneficiary shall retain an amount equal to 5 percent of the beneficiary's daily or weekly cash benefit (as applicable) (which shall be in addition to the amount of the beneficiary's personal needs allowance provided under Medicaid), and the remainder of such benefit shall be applied toward the facility's cost of providing the beneficiary's care, and Medicaid shall provide secondary coverage for such care.
    - (ii) BENEFICIARIES RECEIVING HOME AND COMMUNITY-BASED SERVICES-
      - (I) 50 PERCENT OF BENEFIT RETAINED BY BENEFICIARY- Subject to subclause (II), if a beneficiary is receiving medical assistance under Medicaid for home and community based services, the beneficiary shall retain an amount equal to 50 percent of the beneficiary's daily or weekly cash benefit (as applicable), and the remainder of the daily or weekly cash benefit shall be applied toward the cost to the State of providing such assistance (and shall not be used to claim Federal matching funds under Medicaid), and Medicaid shall provide secondary coverage for the remainder of any costs incurred in providing such assistance.
      - (II) REQUIREMENT FOR STATE OFFSET- A State shall be paid the remainder of a beneficiary's daily or weekly cash benefit under subclause (I) only if the State home and community-based waiver under section 1115 of the Social Security Act (42 U.S.C. 1315) or subsection (c) or (d) of section 1915 of such Act (42 U.S.C. 1396n), or the State plan amendment under subsection (i) of such section does not include a waiver of the requirements of section 1902(a)(1) of the Social Security Act (relating to statewideness) or of section 1902(a)(10)(B) of such Act (relating to comparability) and the State offers at a minimum case management services, personal care services, habilitation services, and respite care under such a waiver or State plan amendment.
      - (III) DEFINITION OF HOME AND COMMUNITY-BASED SERVICES- In this clause, the term `home and community-based services' means any services which may be offered under a home and community-based waiver authorized for a State under section 1115 of the Social Security Act (42 U.S.C. 1315) or subsection (c) or (d) of section 1915 of such Act (42 U.S.C. 1396n) or under a State plan amendment under subsection (i) of such section.
    - (iii) BENEFICIARIES ENROLLED IN PROGRAMS OF ALL-INCLUSIVE CARE FOR THE ELDERLY (PACE)-
      - (I) IN GENERAL- Subject to subclause (II), if a beneficiary is receiving medical assistance under Medicaid for PACE program services under section 1934 of the Social Security Act (42 U.S.C. 1396u-4), the beneficiary shall retain an amount equal to 50 percent of the beneficiary's daily or weekly cash benefit (as applicable), and the remainder of the daily or weekly cash benefit shall be applied toward the cost to the State of providing such assistance (and shall not be used to claim Federal matching funds under Medicaid), and Medicaid shall provide secondary coverage for the remainder of any costs incurred in providing such assistance.
      - (II) INSTITUTIONALIZED RECIPIENTS OF PACE PROGRAM SERVICES- If a beneficiary receiving assistance under Medicaid for PACE program services is a patient in a hospital, nursing facility, intermediate care facility for the mentally retarded, or an institution for mental diseases, the beneficiary shall be treated as in institutionalized beneficiary under clause (i).
- (2) AUTHORIZED REPRESENTATIVES-
  - (A) IN GENERAL- The Secretary shall establish procedures to allow access to a beneficiary's cash benefits by an authorized representative of the eligible beneficiary on whose behalf such benefits are paid.
  - (B) QUALITY ASSURANCE AND PROTECTION AGAINST FRAUD AND ABUSE- The procedures established under subparagraph (A) shall ensure that authorized representatives of eligible beneficiaries comply with standards of conduct established by the Secretary, including standards requiring that such representatives provide quality services on behalf of such beneficiaries, do not have conflicts of interest, and do not misuse benefits paid on behalf of such beneficiaries or otherwise engage in fraud or abuse.
- (3) COMMENCEMENT OF BENEFITS- Benefits shall be paid to, or on behalf of, an eligible beneficiary beginning with the first month in which an application for such benefits is approved.
- (4) ROLLOVER OPTION FOR LUMP-SUM PAYMENT- An eligible beneficiary may elect to--
  - (A) defer payment of their daily or weekly benefit and to rollover any such deferred benefits from month-to-month, but not from year-to-year; and
  - (B) receive a lump-sum payment of such deferred benefits in an amount that may not exceed the lesser of--
    - (i) the total amount of the accrued deferred benefits; or
    - (ii) the applicable annual benefit.
- (5) PERIOD FOR DETERMINATION OF ANNUAL BENEFITS-
  - (A) IN GENERAL- The applicable period for determining with respect to an eligible beneficiary the applicable annual benefit and the amount of any accrued deferred benefits is the 12-month period that commences with the first month in which the beneficiary began to receive such benefits, and each 12-month period thereafter.
  - (B) INCLUSION OF INCREASED BENEFITS- The Secretary shall establish procedures under which cash benefits paid to an eligible beneficiary that increase or decrease as a result of a change in the functional status of the beneficiary before the end of a 12-month benefit period shall be included in the determination of the applicable annual benefit paid to the eligible beneficiary.
  - (C) RECOUPMENT OF UNPAID, ACCRUED BENEFITS-
    - (i) IN GENERAL- The Secretary, in coordination with the Secretary of the Treasury, shall recoup any accrued benefits in the event of--
      - (I) the death of a beneficiary; or
      - (II) the failure of a beneficiary to elect under paragraph (4)(B) to receive such benefits as a lump-sum payment before the end of the 12-month period in which such benefits accrued.
    - (ii) PAYMENT INTO CLASS INDEPENDENCE FUND- Any benefits recouped in accordance with clause (i) shall be paid into the CLASS Independence Fund and used in accordance with section 3206.
- (6) REQUIREMENT TO RECERTIFY ELIGIBILITY FOR RECEIPT OF BENEFITS- An eligible beneficiary shall periodically, as determined by the Secretary--
  - (A) recertify by submission of medical evidence the beneficiary's continued eligibility for receipt of benefits; and
  - (B) submit records of expenditures attributable to the aggregate cash benefit received by the beneficiary during the preceding year.
- (7) SUPPLEMENT, NOT SUPPLANT OTHER HEALTH CARE BENEFITS- Subject to the Medicaid payment rules under paragraph (1)(D), benefits received by an eligible beneficiary shall supplement, but not supplant, other health care benefits for which the beneficiary is eligible under Medicaid or any other Federally funded program that provides health care benefits or assistance.
(d) Advocacy Services- An agreement entered into under subsection (a)(2)(A)(ii) shall require the Protection and Advocacy System for the State to--
- (1) assign, as needed, an advocacy counselor to each eligible beneficiary that is covered by such agreement and who shall provide an eligible beneficiary with--
  - (A) information regarding how to access the appeals process established for the program;
  - (B) assistance with respect to the annual recertification and notification required under subsection (c)(6); and
  - (C) such other assistance with obtaining services as the Secretary, by regulation, shall require; and
- (2) ensure that the System and such counselors comply with the requirements of subsection (h).
(e) Advice and Assistance Counseling- An agreement entered into under subsection (a)(2)(A)(iii) shall require the entity to assign, as requested by an eligible beneficiary that is covered by such agreement, an advice and assistance counselor who shall provide an eligible beneficiary with information regarding--
- (1) accessing and coordinating long-term services and supports in the most integrated setting;
- (2) possible eligibility for other benefits and services;
- (3) development of a service and support plan;
- (4) information about programs established under the Assistive Technology Act of 1998 and the services offered under such programs;
- (5) available assistance with decision making concerning medical care, including the right to accept or refuse medical or surgical treatment and the right to formulate advance directives or other written instructions recognized under State law, such as a living will or durable power of attorney for health care, in the case that an injury or illness causes the individual to be unable to make health care decisions; and
- (6) such other services as the Secretary, by regulation, may require.
(f) No Effect on Eligibility for Other Benefits- Benefits paid to an eligible beneficiary under the CLASS program shall be disregarded for purposes of determining or continuing the beneficiary's eligibility for receipt of benefits under any other Federal, State, or locally funded assistance program, including benefits paid under titles II, XVI, XVIII, XIX, or XXI of the Social Security Act (42 U.S.C. 401 et seq., 1381 et seq., 1395 et seq., 1396 et seq., 1397aa et seq.), under the laws administered by the Secretary of Veterans Affairs, under low-income housing assistance programs, or under the supplemental nutrition assistance program established under the Food and Nutrition Act of 2008 (7 U.S.C. 2011 et seq.).
(g) Rule of Construction- Nothing in this title shall be construed as prohibiting benefits paid under the CLASS Independence Benefit Plan from being used to compensate a family caregiver for providing community living assistance services and supports to an eligible beneficiary.
(h) Protection Against Conflict of Interests- The Secretary shall establish procedures to ensure that the Eligibility Assessment System, the Protection and Advocacy System for a State, advocacy counselors for eligible beneficiaries, and any other entities that provide services to active enrollees and eligible beneficiaries under the CLASS program comply with the following:
- (1) If the entity provides counseling or planning services, such services are provided in a manner that fosters the best interests of the active enrollee or beneficiary.
- (2) The entity has established operating procedures that are designed to avoid or minimize conflicts of interest between the entity and an active enrollee or beneficiary.
- (3) The entity provides information about all services and options available to the active enrollee or beneficiary, to the best of its knowledge, including services available through other entities or providers.
- (4) The entity assists the active enrollee or beneficiary to access desired services, regardless of the provider.
- (5) The entity reports the number of active enrollees and beneficiaries provided with assistance by age, disability, and whether such enrollees and beneficiaries received services from the entity or another entity.
- (6) If the entity provides counseling or planning services, the entity ensures that an active enrollee or beneficiary is informed of any financial interest that the entity has in a service provider.
- (7) The entity provides an active enrollee or beneficiary with a list of available service providers that can meet the needs of the active enrollee or beneficiary.

SEC. 3206. CLASS INDEPENDENCE FUND.

(a) Establishment of CLASS Independence Fund- There is established in the Treasury of the United States a trust fund to be known as the `CLASS Independence Fund'. The Secretary of the Treasury shall serve as Managing Trustee of such Fund. The Fund shall consist of all amounts derived from payments into the Fund under sections 3204(f) and 3205(c)(5)(C)(ii), and remaining after investment of such amounts under subsection (b), including additional amounts derived as income from such investments. The amounts held in the Fund are appropriated and shall remain available without fiscal year limitation--
- (1) to be held for investment on behalf of individuals enrolled in the CLASS program;
- (2) to pay the administrative expenses related to the Fund and to investment under subsection (b); and
- (3) to pay cash benefits to eligible beneficiaries under the CLASS Independence Benefit Plan.
(b) Investment of Fund Balance- The Secretary of the Treasury shall invest and manage the CLASS Independence Fund in the same manner, and to the same extent, as the Federal Supplementary Medical Insurance Trust Fund may be invested and managed under subsections (c), (d), and (e) of section 1841(d) of the Social Security Act (42 U.S.C. 1395t).
(c) Board of Trustees-
- (1) IN GENERAL- With respect to the CLASS Independence Fund, there is hereby created a body to be known as the Board of Trustees of the CLASS Independence Fund (hereinafter in this section referred to as the `Board of Trustees') composed of the Secretary of the Treasury, the Secretary of Labor, and the Secretary of Health and Human Services, all ex officio, and of two members of the public (both of whom may not be from the same political party), who shall be nominated by the President for a term of 4 years and subject to confirmation by the Senate. A member of the Board of Trustees serving as a member of the public and nominated and confirmed to fill a vacancy occurring during a term shall be nominated and confirmed only for the remainder of such term. An individual nominated and confirmed as a member of the public may serve in such position after the expiration of such member's term until the earlier of the time at which the member's successor takes office or the time at which a report of the Board is first issued under paragraph (2) after the expiration of the member's term. The Secretary of the Treasury shall be the Managing Trustee of the Board of Trustees. The Board of Trustees shall meet not less frequently than once each calendar year. A person serving on the Board of Trustees shall not be considered to be a fiduciary and shall not be personally liable for actions taken in such capacity with respect to the Trust Fund.
- (2) DUTIES-
  - (A) IN GENERAL- It shall be the duty of the Board of Trustees to do the following:
    - (i) Hold the CLASS Independence Fund.
    - (ii) Report to the Congress not later than the first day of April of each year on the operation and status of the CLASS Independence Fund during the preceding fiscal year and on its expected operation and status during the current fiscal year and the next 2 fiscal years.
    - (iii) Report immediately to the Congress whenever the Board is of the opinion that the amount of the CLASS Independence Fund is not actuarially sound in regards to the projection under section 3203(b)(1)(B)(i).
    - (iv) Review the general policies followed in managing the CLASS Independence Fund, and recommend changes in such policies, including necessary changes in the provisions of law which govern the way in which the CLASS Independence Fund is to be managed.
  - (B) REPORT- The report provided for in subparagraph (A)(ii) shall--
    - (i) include--
      - (I) a statement of the assets of, and the disbursements made from, the CLASS Independence Fund during the preceding fiscal year;
      - (II) an estimate of the expected income to, and disbursements to be made from, the CLASS Independence Fund during the current fiscal year and each of the next 2 fiscal years;
      - (III) a statement of the actuarial status of the CLASS Independence Fund for the current fiscal year, each of the next 2 fiscal years, and as projected over the 75-year period beginning with the current fiscal year; and
      - (IV) an actuarial opinion by the Chief Actuary of the Centers for Medicare & Medicaid Services certifying that the techniques and methodologies used are generally accepted within the actuarial profession and that the assumptions and cost estimates used are reasonable; and
    - (ii) be printed as a House document of the session of the Congress to which the report is made.
  - (C) RECOMMENDATIONS- If the Board of Trustees determines that enrollment trends and expected future benefit claims on the CLASS Independence Fund are not actuarially sound in regards to the projection under section 3203(b)(1)(B)(i) and are unlikely to be resolved with reasonable premium increases or through other means, the Board of Trustees shall include in the report provided for in subparagraph (A)(ii) recommendations for such legislative action as the Board of Trustees determine to be appropriate, including whether to adjust monthly premiums or impose a temporary moratorium on new enrollments.

SEC. 3207. CLASS INDEPENDENCE ADVISORY COUNCIL.

(a) Establishment- There is hereby created an Advisory Committee to be known as the `CLASS Independence Advisory Council'.
(b) Membership-
- (1) IN GENERAL- The CLASS Independence Advisory Council shall be composed of not more than 15 individuals, not otherwise in the employ of the United States--
  - (A) who shall be appointed by the President without regard to the civil service laws and regulations; and
  - (B) a majority of whom shall be representatives of individuals who participate or are likely to participate in the CLASS program, and shall include representatives of older and younger workers, individuals with disabilities, family caregivers of individuals who require services and supports to maintain their independence at home or in another residential setting of their choice in the community, individuals with expertise in long-term care or disability insurance, actuarial science, economics, and other relevant disciplines, as determined by the Secretary.
- (2) TERMS-
  - (A) IN GENERAL- The members of the CLASS Independence Advisory Council shall serve overlapping terms of 3 years (unless appointed to fill a vacancy occurring prior to the expiration of a term, in which case the individual shall serve for the remainder of the term).
  - (B) LIMITATION- A member shall not be eligible to serve for more than 2 consecutive terms.
- (3) CHAIR- The President shall, from time to time, appoint one of the members of the CLASS Independence Advisory Council to serve as the Chair.
(c) Duties- The CLASS Independence Advisory Council shall advise the Secretary on matters of general policy in the administration of the CLASS program established under this title and in the formulation of regulations under this title including with respect to--
- (1) the development of the CLASS Independence Benefit Plan under section 3203;
- (2) the determination of monthly premiums under such plan; and
- (3) the financial solvency of the program.
(d) Application of FACA- The Federal Advisory Committee Act (5 U.S.C. App.), other than section 14 of that Act, shall apply to the CLASS Independence Advisory Council.
(e) Authorization of Appropriations-
- (1) IN GENERAL- There are authorized to be appropriated to the CLASS Independence Advisory Council to carry out its duties under this section, such sums as may be necessary for fiscal year 2011 and for each fiscal year thereafter.
- (2) AVAILABILITY- Any sums appropriated under the authorization contained in this section shall remain available, without fiscal year limitation, until expended.

SEC. 3208. SOLVENCY AND FISCAL INDEPENDENCE; REGULATIONS; ANNUAL REPORT.

(a) Solvency- The Secretary shall regularly consult with the Board of Trustees of the CLASS Independence Fund and the CLASS Independence Advisory Council, for purposes of ensuring that enrollees premiums are adequate to ensure the financial solvency of the CLASS program, both with respect to fiscal years occurring in the near-term and fiscal years occurring over 20- and 75-year periods, taking into account the projections required for such periods under subsections (a)(1)(A)(i) and (b)(1)(B)(i) of section 3202.
(b) No Taxpayer Funds Used To Pay Benefits- No taxpayer funds shall be used for payment of benefits under a CLASS Independent Benefit Plan. For purposes of this subsection, the term `taxpayer funds' means any Federal funds from a source other than premiums deposited by CLASS program participants in the CLASS Independence Fund and any associated interest earnings.
(c) Regulations- The Secretary shall promulgate such regulations as are necessary to carry out the CLASS program in accordance with this title. Such regulations shall include provisions to prevent fraud and abuse under the program.
(d) Annual Report- Beginning January 1, 2014, the Secretary shall submit an annual report to Congress on the CLASS program. Each report shall include the following:
- (1) The total number of enrollees in the program.
- (2) The total number of eligible beneficiaries during the fiscal year.
- (3) The total amount of cash benefits provided during the fiscal year.
- (4) A description of instances of fraud or abuse identified during the fiscal year.
- (5) Recommendations for such administrative or legislative action as the Secretary determines is necessary to improve the program, ensure the solvency of the program, or to prevent the occurrence of fraud or abuse.

SEC. 3209. INSPECTOR GENERAL'S REPORT.

The Inspector General of the Department of Health and Human Services shall submit an annual report to the Secretary and Congress relating to the overall progress of the CLASS program and of the existence of waste, fraud, and abuse in the CLASS program. Each such report shall include findings in the following areas:
- (1) The eligibility determination process.
- (2) The provision of cash benefits.
- (3) Quality assurance and protection against waste, fraud, and abuse.
- (4) Recouping of unpaid and accrued benefits.

SEC. 3210. TAX TREATMENT OF PROGRAM.

The CLASS program shall be treated for purposes of the Internal Revenue Code of 1986 in the same manner as a qualified long-term care insurance contract for qualified long-term care services.'.
- (2) CONFORMING AMENDMENTS TO MEDICAID- Section 1902(a) of the Social Security Act (42 U.S.C. 1396a(a)), as amended by section 6505, is amended by inserting after paragraph (80) the following:
- (81) provide that the State will comply with such regulations regarding the application of primary and secondary payor rules with respect to individuals who are eligible for medical assistance under this title and are eligible beneficiaries under the CLASS program established under title XXXII of the Public Health Service Act as the Secretary shall establish; and'.
(b) Assurance of Adequate Infrastructure for the Provision of Personal Care Attendant Workers- Section 1902(a) of the Social Security Act (42 U.S.C. 1396a(a)), as amended by subsection (a)(2), is amended by inserting after paragraph (81) the following:
- (82) provide that, not later than 2 years after the date of enactment of the Community Living Assistance Services and Supports Act, each State shall--
  - (A) assess the extent to which entities such as providers of home care, home health services, home and community service providers, public authorities created to provide personal care services to individuals eligible for medical assistance under the State plan, and nonprofit organizations, are serving or have the capacity to serve as fiscal agents for, employers of, and providers of employment-related benefits for, personal care attendant workers who provide personal care services to individuals receiving benefits under the CLASS program established under title XXXII of the Public Health Service Act, including in rural and underserved areas;
  - (B) designate or create such entities to serve as fiscal agents for, employers of, and providers of employment-related benefits for, such workers to ensure an adequate supply of the workers for individuals receiving benefits under the CLASS program, including in rural and underserved areas; and
  - (C) ensure that the designation or creation of such entities will not negatively alter or impede existing programs, models, methods, or administration of service delivery that provide for consumer controlled or self-directed home and community services and further ensure that such entities will not impede the ability of individuals to direct and control their home and community services, including the ability to select, manage, dismiss, co-employ, or employ such workers or inhibit such individuals from relying on family members for the provision of personal care services.'.
(c) Personal Care Attendants Workforce Advisory Panel-
- (1) ESTABLISHMENT- Not later than 90 days after the date of enactment of this Act, the Secretary of Health and Human Services shall establish a Personal Care Attendants Workforce Advisory Panel for the purpose of examining and advising the Secretary and Congress on workforce issues related to personal care attendant workers, including with respect to the adequacy of the number of such workers, the salaries, wages, and benefits of such workers, and access to the services provided by such workers.
- (2) MEMBERSHIP- In appointing members to the Personal Care Attendants Workforce Advisory Panel, the Secretary shall ensure that such members include the following:
  - (A) Individuals with disabilities of all ages.
  - (B) Senior individuals.
  - (C) Representatives of individuals with disabilities.
  - (D) Representatives of senior individuals.
  - (E) Representatives of workforce and labor organizations.
  - (F) Representatives of home and community-based service providers.
  - (G) Representatives of assisted living providers.
(d) Inclusion of Information on Supplemental Coverage in the National Clearinghouse for Long-term Care Information; Extension of Funding- Section 6021(d) of the Deficit Reduction Act of 2005 (42 U.S.C. 1396p note) is amended--
- (1) in paragraph (2)(A)--
  - (A) in clause (ii), by striking `and' at the end;
  - (B) in clause (iii), by striking the period at the end and inserting `; and'; and
  - (C) by adding at the end the following:
    - (iv) include information regarding the CLASS program established under title XXXII of the Public Health Service Act and coverage available for purchase through a Exchange established under section 1311 of the Patient Protection and Affordable Care Act that is supplemental coverage to the benefits provided under a CLASS Independence Benefit Plan under that program, and information regarding how benefits provided under a CLASS Independence Benefit Plan differ from disability insurance benefits.'; and
- (2) in paragraph (3), by striking `2010' and inserting `2015'.
(e) Effective Date- The amendments made by subsections (a), (b), and (d) take effect on January 1, 2011.
(f) Rule of Construction- Nothing in this title or the amendments made by this title are intended to replace or displace public or private disability insurance benefits, including such benefits that are for income replacement.