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 --