BILL ANALYSIS                                                                                                                                                                                                    Ó






                                 SENATE HEALTH
                               COMMITTEE ANALYSIS
                       Senator Ed Hernandez, O.D., Chair


          BILL NO:       SB 677                                      
          S
          AUTHOR:        Hernandez                                   
          B
          AMENDED:       March 22, 2011                              
          HEARING DATE:  April 27, 2011                              
          6
          CONSULTANT:                                                
          7
          Bain                                                       
          7              
                                     SUBJECT
                                         
                             Medi-Cal:  eligibility


                                     SUMMARY  

          This bill would prohibit the Department of Health Care 
          Services (DHCS) from applying an assets or resources test 
          for purposes of determining eligibility for Medi-Cal, 
          except for certain populations.  This bill would also 
          require DHCS to use the modified adjusted gross income 
          (MAGI) of an individual, or the household income of a 
          family, if applicable, for the purposes of determining 
          income eligibility for Medi-Cal, except for certain 
          populations.  The provisions of this bill would be 
          implemented to the extent required by federal law, and 
          would become operative on January 1, 2014. 


                             CHANGES TO EXISTING LAW
                                         
          Existing federal law:

          Federal health care reform, known as the Patient Protection 

          and Affordable Care Act (PPACA) (Public Law 111-148), as 

          amended by the federal Health Care and Education 

                                                         Continued---



          STAFF ANALYSIS OF SENATE BILL 677 (Hernandez)         Page 
          2


          

          Reconciliation Act of 2010 (Public Law 111-152), prohibits 

          the use of an assets or resources test (also known as an 

          asset test) in state Medicaid programs (Medicaid is known 

          as Medi-Cal in California), except for certain individuals 

          described below. 


          PPACA also requires the use of MAGI in determining Medi-Cal 
          eligibility, except for certain individuals described 
          below.  MAGI is based on adjusted gross income (AGI), which 
          is defined under the Internal Revenue Code (IRC) as gross 
          income minus certain deductions, including:  trade and 
          business deductions, losses from the sale or exchange of 
          property, alimony, retirement savings, moving expenses, 
          interest on educational loans, higher education expenses, 
          and health savings accounts.  AGI is then increased by: 

          § Foreign income earned outside the U.S. that is excluded 
            from gross income by the federal IRC;
          § Housing costs for individuals living outside the U.S. 
            that are excluded from gross income pursuant to IRC; and,
          § Any amount of interest received or accrued by a taxpayer 
            that is tax exempt.


          PPACA exempts the following groups from the asset test and 

          MAGI provisions, thereby continuing to apply the current 

          income and asset rules:



          § Individuals eligible for Medicaid on a basis that does 
            not require a determination of income by the Medicaid 
            state agency (for example, foster care children, or 
            individuals receiving Supplemental Security Income 
            ÝSSI]);
          § Individuals who have attained age 65; 
          § Individuals who qualify for Medicaid on the basis of 
            being blind or disabled without regard to whether the 




          STAFF ANALYSIS OF SENATE BILL 677 (Hernandez)         Page 
          3


          

            individual is eligible for SSI;
          § Medically needy individuals; and,
          § Individuals dually eligible for Medicare and Medicaid. 
          
          Existing state law:
          Establishes the Medi-Cal program, administered by DHCS, 
          under which health care services are provided to qualified 
          low-income persons.  

          Requires each Medi-Cal applicant who is not a recipient of 
          aid under the California Work Opportunity and 
          Responsibility to Kids Act (CalWORKS) or Supplemental 
          Security Income/State Supplementary Payment (SSI/SSP) to 
          file an affirmation setting forth such facts about his or 
          her annual income and other resources and qualifications 
          for eligibility, as may be required by DHCS.

          Pursuant to state regulations, defines income and personal 
          property for purposes of determining Medi-Cal eligibility 
          under a specified Medi-Cal eligibility category.

          This bill:
          States legislative intent to implement the provisions of 
          federal health care reform that prohibit the use of an 
          assets or resources test in the Medi-Cal program for 
          certain individuals and that require the use of MAGI in 
          determining Medi-Cal eligibility for certain individuals. 

          Prohibits DHCS from applying an assets or resources test 
          for purposes of determining eligibility for Medi-Cal, 
          except for individuals described in federal law, 
          notwithstanding any other provision of state law and to the 
          extent required by federal law.


          Requires DHCS to use the MAGI of an individual and, in the 

          case of an individual in a family, the household income of 

          the family for the purposes of determining income 

          eligibility for Medi-Cal when a determination of income is 

          required, and when determining premiums and cost-sharing 





          STAFF ANALYSIS OF SENATE BILL 677 (Hernandez)         Page 
          4


          

          under Medi-Cal.



          Requires DHCS to establish income eligibility thresholds 

          for populations eligible for Medi-Cal that are not less 

          than the effective income eligibility levels that are 

          applied under Medi-Cal on March 23, 2010. 



          Requires DHCS, during the transition to the use of MAGI 

          and household income, to work with the federal Secretary 

          of the Department of Health and Human Services (DHHS) to 

          establish an equivalent income test that ensures 

          individuals eligible for Medi-Cal on March 23, 2010 (the 

          effective date of PPACA) do not lose coverage under 

          Medi-Cal for purposes of the federal Medicaid maintenance 

          of effort. 



          Exempts from the provisions of this bill the same 

          individuals who are exempt under federal law from the new 

          MAGI and asset test provisions (for example, individuals 

          age 65 and over, and individuals dually eligible for 

          Medicaid and Medicare).



          Prohibits any type of expense, block, or other income 




          STAFF ANALYSIS OF SENATE BILL 677 (Hernandez)         Page 
          5


          


          disregard (an income disregard is income that is 

          "disregarded" or not counted for Medi-Cal eligibility 

          purposes) from being applied by DHCS to determine income 

          eligibility for Medi-Cal, or for any other purpose 

          applicable under Medi-Cal for which an income determination 

          is required, except for the five percent income disregard 

          in PPACA. 



          Makes the provisions of this bill operative on January 1, 

          2014. 



                                  FISCAL IMPACT  

          This bill has not been analyzed by a fiscal committee.


                            BACKGROUND AND DISCUSSION  

          According to the author, this bill is needed to conform 
          California Medi-Cal law to the recently enacted Medicaid 
          federal health care reform requirements on the prohibition 
          against using an asset test and the requirement to use MAGI 
          in determining eligibility for Medi-Cal, except for certain 
          individuals.  This bill is needed because the California 
          Constitution requires state departments to follow state law 
          unless an appellate court has made a determination that the 
          enforcement of the state law is prohibited by federal law 
          or federal regulation.  

          Medi-Cal eligibility standards
          Federal health care reform makes numerous changes to 
          Medicaid, including expanding eligibility to adults without 
          minor children with incomes equal to or less than 133 




          STAFF ANALYSIS OF SENATE BILL 677 (Hernandez)         Page 
          6


          

          percent of the federal poverty level (FPL), disregarding 
          (or not counting) an additional five percent in income 
          (making Medicaid income eligibility effectively 138 percent 
          of the FPL), and eliminating the asset test and switching 
          to MAGI for certain populations.  According to a recent 
          study in the health policy journal Health Affairs, an 
          additional 1.7 million individuals are estimated to be 
          enrolled in Medi-Cal in California in 2016 at full 
          implementation of federal health care reform. 

          In California, individuals or families can qualify for 
          Medi-Cal coverage through a variety of Medi-Cal programs.  
          Some individuals have automatic eligibility for Medi-Cal 
          because they receive cash assistance from other programs, 
          such as CalWORKs, SSI/SSP, Foster Care or Adoption 
          Assistance, and no separate application for Medi-Cal is 
          required in addition to the application for these benefits. 
           Other individuals qualify for Medi-Cal if the individual 
          is in a Medi-Cal coverage category (such as individuals who 
          are age 65 or older, a child, or a family with children) 
          and has income and resources below the prescribed limit for 
          the coverage category.  
          The income and asset eligibility standards currently vary 
          across states, and different standards apply to different 
          groups within states.  For example, children and pregnant 
          women in California are eligible for Medi-Cal without an 
          asset test, while families under the 1931(b) coverage 
          category have an asset test.  Section 1931(b) Medi-Cal is 
          the largest Medi-Cal coverage category.  It provides no 
          cost Medi-Cal for CalWORKs beneficiaries as well as those 
          families who do not receive CalWORKs but who would meet the 
          income and resource standards for Aid to Families with 
          Dependent Children (AFDC) as it existed prior to federal 
          changes to welfare in 1996.  If the applicant family's 
          income is at or below 100 percent of the federal poverty 
          level and meets other Medi-Cal requirements, the family is 
          eligible for 1931(b) Medi-Cal.

          In determining income under for Section 1931(b) Medi-Cal, 
          certain types of income are exempt (not counted) for 
          recipients and applicants in determining Medi-Cal income 
          eligibility.  Examples of exempt income include public 
          assistance payments (CalWORKs, CalWORKs diversion payments, 
          foster care payments, general relief, SSI) and the 
          employment earnings of a child under age 14, or a child 




          STAFF ANALYSIS OF SENATE BILL 677 (Hernandez)         Page 
          7


          

          under age 19 if the child is a full-time student or a 
          part-time student who is not employed full-time.  

          In addition to exempting certain types of income, Section 
          1931(b) Medi-Cal also allows for income deductions for 
          purposes of determining Medi-Cal eligibility.  Deductions 
          are amounts subtracted from an applicant's income.  For 
          applicants, monthly deductions include $90 of earned income 
          per working person, dependent care costs with a maximum of 
          $200 per month per child under 2 years and $175 per month 
          if the child is older than two, court-ordered child support 
          or alimony paid by the applicant, educational expenses 
          (including tuition, books, fees, supplies, travel and child 
          care), and self-employed business expenses. 

          In addition to having to meet income eligibility 
          requirements, beneficiaries eligible for Section 1931(b) 
          Medi-Cal must also have assets below specified property 
          limits.  Assets include cash, savings, stocks, bonds, 
          mutual funds, property, and life insurance policies with a 
          face value of less than $1,500.  Certain property is 
          exempt, including a home, clothing, and the first $4,650 
          value of a car.  Property limits vary with family size.  
          For a family of two persons, the property limit is $3,000.

          Effective January 1, 2014, PPACA requires states to change 
          the way they calculate income for purposes of determining 
          Medi-Cal eligibility.  Under federal health care reform, 
          state income disregards and asset or resource tests would 
          no longer apply when calculating income eligibility (except 
          for specified groups, such as seniors and individuals 
          eligible for Medicaid on a basis that does not require 
          determination of income by the Medicaid state agency).  
          Instead, the income eligibility for an individual or a 
          family would be measured based on MAGI.  MAGI is defined as 
          the IRC's AGI, which allows a number of income deductions, 
          including trade and business deductions, losses from the 
          sale of property, and alimony payments.  MAGI is increased 
          by tax-exempt interest and income earned by U.S. citizens 
          or residents living abroad.  

          The shift to MAGI and the elimination of the asset test 
          will affect beneficiaries differently, depending upon the 
          assets, income, deductions and exemptions that apply to 
          each individual or family.  For example, MAGI does not 




          STAFF ANALYSIS OF SENATE BILL 677 (Hernandez)         Page 
          8


          

          include income disregards used by a majority of state 
          Medicaid programs (including California), such as earned 
          income and child care disregards.  These disregards 
          effectively make more individuals and families eligible for 
          Medi-Cal, and their elimination may cause some individuals 
          to lose Medi-Cal eligibility.  On the other hand, the 
          elimination of the asset test will make more individuals 
          eligible for Medi-Cal and will simplify the application 
          process.  PPACA also requires MAGI to be used to determine 
          income for any other purposes applicable under Medicaid 
          (such as determining cost-sharing amounts), and to 
          determine eligibility for premium and cost-sharing 
          subsidies in the newly created California Health Benefits 
          Exchange, and in the Children's Health Insurance Program 
          (known as the Healthy Families Program in California).

          State Constitutional requirement
          The California Constitution prohibits an administrative 
          agency from having the power to declare a statute 
          unenforceable, or to refuse to enforce a statute on the 
          basis that federal law or federal regulations prohibit the 
          enforcement of such statute unless an appellate court has 
          made a determination that the enforcement of such statute 
          is prohibited by federal law or federal regulations.  
          Because PPACA places new requirements on health plans and 
          public programs (such as the Medi-Cal and Healthy Families 
          Programs) that in some instances differ from current 
          program requirements in statute or regulation, state 
          legislation is needed to conform California law to the 
          federal requirements so California departments can 
          implement the federal requirements.  

          Related bills
          AB 43 (Monning) would require DHCS to expand, by January 1, 
          2014, income eligibility for Medi-Cal up to 133 percent of 
          the FPL for adults without minor children who are under 65 
          years of age (who are not pregnant, not entitled to, or 
          enrolled in, benefits under Medicare Part A, or enrolled in 
          benefits under Medicare Part B, or as otherwise specified). 
           AB 43 would also permit DHCS, to the extent permitted by 
          federal law, to phase in coverage for those individuals.  
          In addition, this bill would require DHCS to prepare and 
          submit for approval to the federal Centers for Medicare and 
          Medicaid Services (CMS) an initial transition plan, as 
          specified.  Finally, AB 43 would require DHCS to submit the 




          STAFF ANALYSIS OF SENATE BILL 677 (Hernandez)         Page 
          9


          

          initial transition plan to the appropriate policy and 
          fiscal committees of the Legislature.  AB 43 is scheduled 
          for hearing in the Assembly Health Committee on April 26, 
          2011. 

          Prior legislation
          AB 1249 (Chan) of 2005 would have required DHCS, beginning 
          January 1, 2006, to allow an individual eligible for 
          benefits under the 1931(b) Medi-Cal category to 
          self-certify his or her countable resources (commonly 
          referred to as an assets test).  This certification must be 
          made under penalty of perjury.  Implementation of this 
          provision would have been contingent upon federal financial 
          participation.  AB 1249 was held on the Assembly 
          Appropriations suspense file.

          AB 1722 (Gallegos) of 2000 would have eliminated the 
          Medi-Cal assets test to the extent that federal financial 
          participation was available.  Governor Davis vetoed the 
          bill, stating that it was "inconsistent with the 
          eligibility rules agreed upon as part of the Budget Act of  
           1999 and related budget trailer bill language."

          Arguments in support
          Western Center on Law & Poverty (WCLP) writes in support of 
          this bill that it would simplify the Medi-Cal eligibility 
          rules by 2014 as required by PPACA.  WCLP writes that this 
          bill rightly requires California to establish income levels 
          using the MAGI rules that are not less than the effective 
          income levels today.  WCLP states that many complain that 
          Medi-Cal administration and eligibility determinations are 
          too cumbersome and complicated, and this bill would 
          importantly simplify income and assets rules, thus allowing 
          for a more efficient and streamlined program.  WCLP 
          concludes that this bill would also achieve alignment of 
          the Medi-Cal income, assets, and household rules with the 
          rules in the California Health Benefit Exchange (Exchange) 
          as needed for a streamlined application and enrollment 
          system.  
                                         

                                    COMMENTS
           
          1.  PPACA minimum eligibility. PPACA expands Medi-Cal 
          eligibility to 133 percent of the federal poverty level 




          STAFF ANALYSIS OF SENATE BILL 677 (Hernandez)         Page 
          10


          

          (effectively 138 percent of the federal poverty level after 
          the 5 percent federal income disregard).  PPACA also 
          requires states to establish income eligibility thresholds 
          individuals using MAGI and household income that are not 
          less than the effective income eligibility levels that 
          applied under the state's Medicaid State Plan on the date 
          of enactment of  PPACA (March 23, 2010).  This bill mirrors 
          this federal requirement for effective income eligibility 
          levels, and charges DHCS with making this determination.  

          There are several significant policy and fiscal issues 
          associated with this provision for states.  Depending upon 
          federal guidance, California may have to increase income 
          eligibility above the effective federal Medicaid 
          eligibility standard of 138 percent of the FPL in order to 
          meet the federal requirement that states establish income 
          eligibility thresholds that are not less than the effective 
          income eligibility levels that applied on March 23, 2010.  
          The reason a higher income eligibility threshold would be 
          required is current state income deductions and exemptions 
          (which vary by Medi-Cal eligibility category) effectively 
          make more individuals eligible than if only income is used 
          as a basis for determining eligibility.  For example, in 
          the 1931(b) Medi-Cal eligibility category, a single parent 
          with an infant with an income of 99 percent of the FPL can 
          effectively have an income of 142 percent of the FPL 
          because the family can deduct $90 of earned income, $200 
          for child care, and $240 a month in disability-based 
          income.  

          In addition, if the Legislature delegates implementation of 
          this federal requirement to DHCS, DHCS would either have to 
          adopt regulations, or would need an exemption from 
          regulations to allow the change to be adopted through all 
          county letters or similar instructions.  

          How the state establishes this income eligibility provision 
          will affect what health coverage program low-income 
          individuals and families will be eligible for, whether 
          these individuals will pay premiums for coverage (in 
          Medi-Cal versus the newly created Exchange), how much these 
          individuals will pay at the point of service (in 
          co-payments or deductibles), how many individuals will 
          enroll in the Exchange versus Medi-Cal, the number of 
          individuals receiving federal premium and cost-sharing 




          STAFF ANALYSIS OF SENATE BILL 677 (Hernandez)         Page 
          11


          

          subsidies, and state General Fund Medi-Cal costs.

          2.  Federal guidance on MAGI forthcoming. In March 2011, 
          the federal CMS stated the conversion to a MAGI-equivalent 
          income standard required under PPACA is designed to ensure 
          that individuals who meet the eligibility requirements in 
          effect as of March 23, 2010 do not lose eligibility as a 
          result of the shift to MAGI.  CMS stated guidance will be 
          provided by the federal Secretary of DHHS regarding how 
          states can accomplish the required conversion, and once the 
          new MAGI-equivalent income standard has been determined, 
          the federal maintenance of effort requirements required by 
          PPACA will be applied to such converted standard, using the 
          MAGI methodologies to determine an individual's income, as 
          required under the PPACA.


                                    POSITIONS  

          Support:  American Federation of State, County and 
          Municipal Employees
                    California Mental Health Directors Association
                    California State Association of Counties
                    County Health Executives Association of 
               California
                    County Welfare Directors Association
                    Urban Counties Caucus
                    Western Center on Law & Poverty

          Oppose:   None on file.


                                   -- END --