Page:United States Statutes at Large Volume 120.djvu/154

 PUBLIC LAW 109–171—FEB. 8, 2006

120 STAT. 123

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 be eligible for such services for a period of at least 12 months beginning on the date the individual first received medical assistance for such services; 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.

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