f. Definition of Disabled Individual

Section 1902(xx)(9)(A)(ii)(III) of the Act provides an exclusion from the community engagement requirement for an individual who is a parent, guardian, caretaker relative, or family caregiver of a disabled individual. The statute does not define the term “disabled” or “disabled individual,” nor does it include a cross-reference to an existing statutory or regulatory definition of disability. Instead, Section 1902(xx)(9)(A)(ii)(III) of the Act focuses on the caregiver and that person's relationship to the care recipient, not on whether the care recipient has previously been determined disabled by the Social Security Administration (SSA) or been identified as disabled within the Medicaid program or by other eligibility criteria established by Federal law.

In developing a regulatory definition, we considered several possible approaches. First, we considered adopting the SSA definition of disability used for purposes of Supplemental Security Income (SSI) and Social Security Disability Insurance (SSDI). That definition generally requires that a person be unable to engage in substantial gainful activity due to a medically determinable impairment expected to last at least 12 months or result in death. We determined that this standard is closely tied to cash assistance eligibility and work incapacity determinations and may not be well aligned with the structure or purpose of this caregiver exclusion. Section 1902(xx)(9)(A)(ii)(III) of the Act does not require that the disabled individual be unable to work, nor does it condition the exclusion on the disabled individual's receipt of SSI or SSDI. Limiting the exclusion to disabled individuals with a formal SSA disability determination could exclude individuals who provide assistance to disabled individuals with a broad range of functional limitations whom the statute appears to encompass.

Second, we considered other disability definitions used in Federal statutes and programs, including the definition of “individual with a disability” under the Rehabilitation Act of 1973 and the Americans with Disabilities Act (ADA). These statutes are generally aligned in that an individual has a disability if the individual has a physical or mental impairment that substantially limits one or more major life activities, has a record of such an impairment, or is regarded as having such an impairment. These definitions are not tied to work incapacity or eligibility for cash assistance and instead focus on functional limitation. The ADA definition is also a well-established Federal standard that applies across a wide range of programs and contexts and is familiar to States and interested parties.

Finally, we considered permitting States to define “disabled individual” for purposes of the exclusion. However, the absence of a Federal standard could lead to inconsistent application across States and uncertainty for beneficiaries.

After considering these options, we are adopting a definition of disabled individual at new § 435.554(a) that aligns with the ADA definition of “disability” at 28 CFR 35.108 . Under this definition, disabled individual means an individual who meets the ADA definition of disability at 28 CFR 35.108 . An individual need not be eligible for Medicaid or other Federal programs on the basis of a disability to be a disabled individual under this definition.

As previously stated, section 1902(xx)(9)(A)(ii)(III) of the Act does not specify an upper age limit when referencing a “disabled individual.” This term could, therefore, include an older adult who requires assistance of varying scope in performing activities of daily living (ADLs) (bathing, dressing, toileting, eating, etc.) or other activities that keep older adults living at home and participating in community life. We encourage States to ensure that educational materials on this community engagement exclusion are sufficiently clear so that individuals providing supports to older adults understand that they could qualify as a specified excluded individual through the family caregiver component at section 1902(xx)(9)(A)(ii)(III) of the Act. We also acknowledge that there is no lower age limit to “disabled individual,” meaning that the term could apply to individuals from birth, although we note that there is overlap through the age of 13 with references in this same exclusion category to “dependent child 13 years of age and under.”