BILL ANALYSIS                                                                                                                                                                                                    







                      SENATE COMMITTEE ON PUBLIC SAFETY
                             Senator Mark Leno, Chair                A
                             2009-2010 Regular Session               B

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          AB 1985 (Galgiani)                                         5
          As Amended June 21, 2010 
          Hearing date:  June 29, 2010
          Penal Code
          SM:dl

                        CORRECTIONS: DURABLE MEDICAL EQUIPMENT  

                                       HISTORY

          Source:  California Prison Health Care Services (Federal  
          Receiver)

          Prior Legislation: AB 2119 (Galgiani) - 2008, held on suspense  
                       in Assembly Appropriations Committee;
                       AB 1762 (Committee on Budget) - Chapter 230,  
          Statutes of 2003
                       AB 747 (Matthews) - Chap. 659, Statutes of 2003

          Support: None known

          Opposition:Disability Rights California

          Assembly Floor Vote:  Ayes  52 - Noes  22


                                           
                                     KEY ISSUES
           
          SHOULD THE CALIFORNIA DEPARTMENT OF CORRECTIONS AND  
          REHABILITATION (CDCR) BE REQUIRED BY JANUARY 1, 2011 TO ADOPT  
          STANDARD FORMS FOR USE BY CONTRACT HEALTH SERVICE PROVIDERS,  
          DEVELOP THE ABILITY TO ACCEPT SECURE ELECTRONIC SUBMISSION OF  




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          CLAIMS FROM CONTRACT HEALTHCARE SERVICE PROVIDERS, PROVIDE  
          ELECTRONIC CLAIM STATUS INFORMATION TO THOSE PROVIDERS, AND  
          AUDIT THOSE CLAIMS, AS SPECIFIED?

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          SHOULD CDCR BE AUTHORIZED, SUBJECT TO APPROVAL BY THE FEDERAL  
          RECEIVER OF MEDICAL CARE SO LONG AS THE RECEIVERSHIP EXISTS, TO  
          ADOPT THE METHODOLOGIES USED IN THE MEDI-CAL PROGRAM FOR PROCUREMENT  
          OF DURABLE MEDICAL EQUIPMENT (DME)? 

          SHOULD EACH OF THESE PROVISIONS BE EXEMPT FROM THE REQUIREMENTS OF  
          THE ADMINISTRATIVE PROCEDURES ACT?


                                       PURPOSE
          
          The purpose of this bill is to (1) adopt specified legislative  
          findings and declarations; (2) require the CDCR by January 1,  
          2011, to adopt standard forms for use by contract health service  
          providers, develop the ability to accept secure electronic  
          submission of claims from contract healthcare service providers,  
          provide electronic claim status information to those providers,  
          and audit those claims, as specified; (3) authorize, subject to  
          approval by the federal receiver of medical care so long as the  
          receivership exists, to adopt the methodologies used in the  
          Medi-Cal program regarding procurement of durable medical  
          equipment (DME); and (4) exempt provisions of the bill from the  
          Administrative Procedures Act.
          

           Current law  establishes the following Durable Medical Goods  
          (DME) reimbursement rules for Medi-Cal:

             a)   Requires the Department of Health Care Services (DHCS)  
               to establish a list of covered services and maximum  
               allowable reimbursement rates for DME, as defined, and  
               requires the list to specify utilization controls to be  




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               applied to each type of DME; 
             b)   Requires reimbursement for DME, except wheelchairs and  
               speech-generating devices to be the lesser of:
               i)     The amount billed pursuant to DHCS regulations; 
               ii)    An amount that does not exceed 80% Medicare  
                 allowance; or,
               iii)   The guaranteed negotiated acquisition cost by means  
                 of exclusive or nonexclusive contracts on a bid plus a  
                 specified percentage markup.
             c)   Requires reimbursement for wheelchairs and  
               speech-generating devices and their related accessories to  
               be the lesser of:
               i)     The amount billed pursuant to DHCS regulations; 
               ii)    An amount that does not exceed 100% of Medicare  
                 allowance; or,
               iii)   The guaranteed negotiated acquisition cost by means  
                 of exclusive or nonexclusive contracts on a bid plus a  
                 specified percentage markup. 
             d)   Requires reimbursement for all DME utilizing codes with  
               no specified maximum allowable rate to be the lesser of:
               i)     The amount billed pursuant to DHCS regulations; 
               ii)    The guaranteed negotiated acquisition cost  
                 negotiated by means of exclusive or nonexclusive  
                 contracts on a bid plus a specified percentage markup; 
               iii)   The actual acquisition cost plus a markup  
                 established by DHCS;
               iv)    A specified percentage of the manufacturer's  
                 suggested retail purchase price on June 1, 2006, as  
                 specified, not to exceed 15% for wheelchairs and  
                 wheelchair accessories if the provider employs or  
                 contracts with a qualified rehabilitation professional;  
                 or,
               v)     A price established through targeted  
                 product-specific cost containment provisions developed  
                 with providers.
             e)   Requires reimbursement for all DME supplies and  
               accessories billed to the Medi-Cal Program to be the lesser  
               of the amount billed pursuant to pursuant to DHCS  
               regulations or the acquisition cost plus a 23% markup;  
               and,(Welfare & Inst. Code  14105.48.)




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           This bill  requires CDCR, by January 1, 2011, to do the  
          following: 

                 Adopt industry standard claims forms for use by contract  
               healthcare service providers. 

                 Be able to accept secure electronic submission of claims  
               from contract healthcare service providers.

                 Perform periodic audits of claims paid to contract  
               healthcare providers.

                 Provide secure, remote electronic access to claim status  
               information to those contract healthcare service providers  
               submitting claims electronically in the manner required by  
               the department.

           This bill  would permit CDCR to adopt policies and procedures for  
          the purpose of enabling electronic healthcare claims management  
          and processing and would exempt the adoption, amendment, or  
          repeal of policies and procedures for this limited purpose from  
          the rulemaking provisions of the Administrative Procedure Act,  
          as specified.

           This bill  authorizes CDCR, upon approval of the federal  
          receiver, or at such time as CDCR is no longer under the  
          authority of the federal receiver, to do all of the following:

                 The department may establish a list of covered services  
               and maximum allowable reimbursement rates for durable  
               medical equipment as defined in Section 51160 of Title 22  
               of the California Code of Regulations. The list may specify  
               utilization controls to be applied to each type of durable  
               medical equipment.

                 The department may set reimbursement for durable medical  
               equipment, except wheelchairs, wheelchair accessories, and  
               speech-generating devices and related accessories, at the  
               lesser of (1) the amount billed pursuant to Section 51008.1  




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               of Title 22 of the California Code of Regulations, (2) an  
               amount that does not exceed 80 percent of the lowest  
               maximum allowance for California established by the federal  
               Medicare Program for the same or similar item or service,  
               or (3) the guaranteed acquisition cost negotiated by means  
               of the contracting process provided for pursuant to Section  
               14105.3 of the Welfare and Institutions Code plus a  
               percentage markup to be established by the department.

                 The department may set reimbursement for wheelchairs,  
               wheelchair accessories, and speech-generating devices and  
               related accessories at the lesser of (1) the amount billed  
               pursuant to Section 51008.1 of Title 22 of the California  
               Code of Regulations, (2) an amount that does not exceed 100  
               percent of the lowest maximum allowance for California  
               established by the federal Medicare Program for the same or  
               similar item or service, or (3) the guaranteed acquisition  
               cost negotiated by means of the contracting process  
               provided for pursuant to Section 14105.3 of the Welfare and  
               Institutions Code plus a percentage markup to be  
               established by the department.

                 The department may set reimbursement for all durable  
               medical equipment billed to the department utilizing codes  
               with no specified maximum allowable rate at the lesser of  
               (1) the amount billed pursuant to Section 51008.1 of Title  
               22 of the California Code of Regulations, (2) the  
               guaranteed acquisition cost negotiated by means of the  
               contracting process provided for pursuant to Section  
               14105.3 of the Welfare and Institutions Code plus a  
               percentage markup to be established by the department, (3)  
               the actual acquisition cost plus a markup to be established  
               by the department, (4) the manufacturer's suggested retail  
               purchase price on June 1, 2006, and documented by a printed  
               catalog or a hard copy of an electronic catalog page  
               showing the price on that date, reduced by a percentage  
               discount not to exceed 20 percent, or not to exceed 15  
               percent for wheelchairs and wheelchair accessories if the  
               provider employs or contracts with a qualified  
               rehabilitation professional, as defined in paragraph (3) of  




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               subdivision (c) of Section 14105.485 of the Welfare and  
               Institutions Code, or (5) a price established through  
               targeted product-specific cost containment provisions  
               developed with providers.

                 The department may set reimbursement for all durable  
               medical equipment supplies and accessories billed to the  
               department at the lesser of (1) the amount billed pursuant  
               to Section 51008.1 of Title 22 of the California Code of  
               Regulations, or (2) the acquisition cost plus a 23-percent  
               markup.

                 The department may establish "capped rental"  
               reimbursement for specific items of durable medical  
               equipment. Items in this category may be reimbursed on a  
               monthly rental basis not to exceed a period of continuous  
               use of 10 months. After 10 months of rent have been paid,  
               the provider shall continue to provide the item without  
               charge, except for maintenance and servicing fees, until  
               the medical necessity ends. If the department establishes  
               "capped rental" reimbursement pursuant to this subdivision,  
               monthly reimbursement for the rental of these specific  
               items of durable medical equipment may not exceed 80  
               percent of the lowest maximum allowance for California  
               established by the federal Medicare Program for the same or  
               similar item or service.

           This bill  would exempt each of the above actions from the  
          rulemaking provisions of the Administrative Procedures Act or to  
          the review and approval of the Office of Administrative Law.

                    RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
          
          The severe prison overcrowding problem California has  
          experienced for the last several years has not been solved.  In  
          December of 2006 plaintiffs in two federal lawsuits against the  
          Department of Corrections and Rehabilitation sought a  
          court-ordered limit on the prison population pursuant to the  
          federal Prison Litigation Reform Act.  On January 12, 2010, a  
          federal three-judge panel issued an order requiring the state to  




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          reduce its inmate population to 137.5 percent of design capacity  
          -- a reduction of roughly 40,000 inmates -- within two years.   
          In a prior, related 184-page Opinion and Order dated August 4,  
          2009, that court stated in part:

               "California's correctional system is in a tailspin,"  
               the state's independent oversight agency has reported.  
               . . .  (Jan. 2007 Little Hoover Commission Report,  
               "Solving California's Corrections Crisis: Time Is  
               Running Out").  Tough-on-crime politics have increased  
               the population of California's prisons dramatically  
               while making necessary reforms impossible. . . .  As a  
               result, the state's prisons have become places "of  
               extreme peril to the safety of persons" they house, .  
               . .  (Governor Schwarzenegger's Oct. 4, 2006 Prison  
               Overcrowding State of Emergency Declaration), while  
               contributing little to the safety of California's  
               residents, . . . .   California "spends more on  
               corrections than most countries in the world," but the  
               state "reaps fewer public safety benefits." . . .  .   
               Although California's existing prison system serves  
               neither the public nor the inmates well, the state has  
               for years been unable or unwilling to implement the  
               reforms necessary to reverse its continuing  
               deterioration.  (Some citations omitted.)

               . . .

               The massive 750% increase in the California prison  
               population since the mid-1970s is the result of  
               political decisions made over three decades, including  
               the shift to inflexible determinate sentencing and the  
               passage of harsh mandatory minimum and three-strikes  
               laws, as well as the state's counterproductive parole  
               system.  Unfortunately, as California's prison  
               population has grown, California's political  
               decision-makers have failed to provide the resources  
               and facilities required to meet the additional need  
               for space and for other necessities of prison  
               existence.  Likewise, although state-appointed experts  




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               have repeatedly provided numerous methods by which the  
               state could safely reduce its prison population, their  
               recommendations have been ignored, underfunded, or  
               postponed indefinitely.  The convergence of  
               tough-on-crime policies and an unwillingness to expend  
               the necessary funds to support the population growth  
               has brought California's prisons to the breaking  
               point.  The state of emergency declared by Governor  
               Schwarzenegger almost three years ago continues to  
               this day, 
               California's prisons remain severely overcrowded, and  
               inmates in the California prison system continue to  
               languish without constitutionally adequate medical and  
               mental health care.<1>

          The court stayed implementation of its January 12, 2010 ruling  
          pending the state's appeal of the decision to the U.S. Supreme  
          Court.  On Monday, June 14, 2010, The U.S. Supreme Court agreed  
          to hear the state's appeal in this case.   

           This bill  does not appear to aggravate the prison overcrowding  
          crisis described above.


                                      COMMENTS

          1.  Need for This Bill  

          According to the author:

               As a cost-saving measure to address the exorbitant  
               cost of durable medical equipment (DME) for Medi-Cal,  
               Assembly Bill 747 (Matthews, 2003) was introduced to  
               ----------------------
          <1>   Three Judge Court Opinion and Order, Coleman v.  
          Schwarzenegger, Plata v. Schwarzenegger, in the United States  
          District Courts for the Eastern District of California and the  
          Northern District of California United States District Court  
          composed of three judges pursuant to Section 2284, Title 28  
          United States Code (August 4, 2009).




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               require the then-titled Department of Health Services  
               to establish a list of covered services and maximum  
               allowable reimbursement rates for durable medical  
               equipment.  The bill would have provided that  
               reimbursement for these items, of durable medical  
               equipment, would be the lesser of specified amounts.   
               The bill also would have required the department to  
               establish "capped rental" reimbursement for specific  
               items, of durable medical equipment, and would require  
               that items in this category be reimbursed on a monthly  
               rental basis as prescribed.

               This language was later adopted in the Budget Trailer  
               bill on Health (AB 1762; Budget Act of 2003) as a cost  
               saver for the Medi-Cal program under the then-titled  
               Department of Health Services.  

               The Department of Corrections and Rehabilitation's  
               medical care system is in a current state of crisis,  
               as evidenced by the fact it was placed in a federal  
               receivership.  Any way the state of California can  
               assist the Receiver in finding ways to cut state costs  
               in the prison medical care system is a plus.  


               Assembly Bill 1985 is a re-introduction of Assembly  
               Bill 2119 (Galgiani) intended to streamline the costs  
               of the Department of Corrections and Rehabilitation  
               medical care system as it has already been  
               accomplished under the Medi-Cal program under the  
               Department of Health Care Services.  

                 AB 1985 will provide cost savings to the Department of  
               Corrections and Rehabilitation by permitting the  
               department (1) to establish a list of covered services  
               and maximum allowable reimbursement rates for durable  
               medical equipment used for inmate medical care; (2)  
               provide that reimbursement for these items of durable  
               medical equipment may be the lesser of specified  
               amounts; and (3) to establish capped rental  




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               reimbursement for specific items of durable medical  
               equipment and provide that items in this category be  
               reimbursed on a monthly basis as prescribed.  
               
               The intent of this legislation is to achieve the same  
               cost savings in prison healthcare as it was achieved  
               for the Medi-Cal program under the Department of  
               Health Care Services, by mirroring the language from  
               Assembly Bill 747 adopted by the Budget Act of 2003.

          2.  The Federal Prison Health Care Receivership  

          The inadequate provision of medical services to inmates at CDCR  
          prompted several class action lawsuits and court-ordered reforms  
          over the last several years.  After "numerous experts testified  
          as to the 'incompetence and indifference' of prison physicians  
          and medical staff and described an 'abysmal' medical delivery  
          system where 'medical care too often sinks below gross  
          negligence to out-right cruelty'. . .[i]n February 2006, the  
          district court issued an order appointing a Receiver and  
          conferring upon the Receiver all of the powers of the Secretary  
          of the CDCR with respect to the delivery of medical care, while  
          concurrently suspending the Secretary's exercise of the same."   
          (Plata v. Schwarzenegger, 2010 U.S. App. LEXIS 8969, 5-6 (9th  
          Cir. Cal. Apr. 30, 2010).)  The California Prison Health Care  
          Services (CPHCS) is a non-profit organization created to house  
          the activities of the federal Receiver and works at the  
          direction of federal Health Care Receiver, J. Clark Kelso.  

          3.  Background   

          In December 2002, the State Auditor published a report regarding  
          the purchasing and contracting practices of DHCS for DME,  
          medical supplies, and hearing aids under Medi-Cal.  The report  
          found that Medi-Cal expenditures for DME rose by 70% from 1998  
          through 2001 while expenditures for medical supplies decreased  
          by 6.3%.  As a response to these cost increases, the Legislature  
          implemented major cost savings provisions by passing AB 1762,  
          which were implemented in 2004.  According to DHCS, Medi-Cal  
          spending on DME has decreased significantly from $143 million in  




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          2003 to $99 million in 2009.  DHCS notes that other factors may  
          have played a role in reducing costs such as change in demand,  
          participation of DME providers, and activities of Medi-Cal  
          Audits and Investigations Branch.      

          4.  Current CDCR DME Procurement   

          According to CDCR, prisons purchase DME in the same manner as  
          other non-medical equipment.  For purchase contracts of less  
          than  $100,000, individual CDCR facilities must obtain at least  
          two or three bids and choose the lowest qualified bidder (with  
          certain exceptions designed to favor purchases from small  
          businesses and disabled veterans business enterprises).   
          Purchases of $100,000 or more are processed through DGS to  
          determine if DGS has a contract in place to purchase the  
          specific item or items.  DGS secures contracts by using the  
          competitive invitation for bid process.  This process includes  
          advertising DGS' requirements through the state contracts  
          register, receiving bids from at least three vendors, and  
          accepting the lowest competitive bid that meets DGS'  
          requirements.  The Receiver may, but is not required to, follow  
          existing state law in the acquisition of DME.






















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          5.  Purchasing DME: Medi-Cal and CDCR  

          As noted above, following a Bureau of State Audits report in  
          2002 about prohibitive DME cost escalation in Medi-Cal, AB 1762  
                           was enacted to require Medi-Cal to establish price caps and fee  
          schedules.  Following enactment of those provisions, Medi-Cal  
          DME costs were reduced substantially.  While the enactment of AB  
          1762 may have generated cost savings and alleviated escalating  
          expenditures under Medi-Cal, the funding and circumstances of  
          health care provided in California prisons are fundamentally  
          different.  It is not clear whether the approach that was  
          effective for Medi-Cal would be workable or effective in the  
          corrections environment.  The CDCR approach to DME is focused  
          around competitive bidding for costs of less than $100,000 and  
          for costs in excess of $100,000 the Department of General  
          Services handles procurement.  It is unclear how easily CDCR  
          could adapt to the approach contained in this bill.  However,  
          the Receiver's office observes that the permissive nature of  
          this bill would allow CDCR to use this procurement methodology  
          for those types of medical equipment for which it feels this  
          would be appropriate and it would not be locked in to using this  
          approach for all medical equipment.

          ARE THE MEDI-CAL DME PROCUREMENT RULES APPROPRIATE FOR CDCR? 

          IS THERE A DEMONSTRATED NEED FOR CDCR TO ADOPT THESE PROCUREMENT  
          RESTRICTIONS?

          BECAUSE THIS PORTION OF THE BILL IS ENTIRELY PERMISSIVE, IS IT  
          NECESSARY?

          6.  Administrative Procedures Act Exemption  

          This bill would require CDCR to establish the capability to  
          accept secure electronic submission of claims from contract  
          healthcare service providers and provide secure, remote  
          electronic access to claim status information to those contract  
          healthcare service providers submitting claims electronically.   
          It would also permit CDCR to adopt the Medi-Cal procurement  




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          rules for purchasing durable medical equipment.  As to both of  
          these the bill would currently exempt these provisions from the  
          rulemaking provisions of the Administrative Procedures Act (APA)  
          or to the review and approval of the Office of Administrative  
          Law.  The author has indicated she will take an amendment to  
          delete these exemptions.

          SHOULD THIS AMENDMENT BE TAKEN?

          7.  Argument in Opposition  

          Disability Rights California states:

               AB 1985 would permit the Department of Corrections and  
               Rehabilitation to establish a list of covered services  
               and maximum allowable reimbursement rates for durable  
               medical equipment (DME) used for inmate medical care.   
               The list may specify utilization controls to be  
               applied to each type of DME and adopts the definition  
               of DME under the Medi-Cal program.

               Adoption of Medi-Cal's limited definition of DME,  
               permission to impose utilization controls, and  
               requirement for the cheapest DME purchase and rental  
               will further curtail an already reduced access to  
               medical equipment in penal correctional facilities.   
               Coupled with the lower standard of medical care  
               available to inmates, AB 1985 will compromise health  
               services to inmates with disabilities by resulting in  
               the selection of inappropriate DME or denial of  
               appropriate DME.

               AB 1985 runs counter to inmates' rights under the  
               Americans with Disabilities Act (ADA).  Under the ADA,  
               inmates with disabilities must be afforded equal  
               access to the same services and activities, and  
               receive the same benefits and aids as inmates without  
               disabilities.  The program restrictions of AB 1985  
               will arbitrarily limit the determination, and in many  
               cases deny the receipt, of items of DME that would be  












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               necessary to afford equal access and benefits as  
               mandated by the ADA.

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