Amended in Assembly April 11, 2013

California Legislature—2013–14 Regular Session

Assembly Bill No. 518

Introduced by Assembly Members Yamada and Blumenfield

begin insert

(Coauthors: Assembly Members Ammiano, Brown, Chesbro, and Ting)

end insert

February 20, 2013

An act to add Article 7 (commencing with Section 14590.10) to Chapter 8.7 of Part 3 of Division 9 of begin insert , and to repeal Section 14590.20 of, end insert the Welfare and Institutions Code, relating to Medi-Cal.

LEGISLATIVE COUNSEL’S DIGEST

AB 518, as amended, Yamada. Community-based adult services.

Existing law establishes the Medi-Cal program, administered by the State Department of Health Care Services, under which health care services are provided to qualified, low-income persons. The Medi-Cal program is, in part, governed and funded by federal Medicaid Program provisions. Existing law provides, to the extent permitted by federal law, that adult day health care (ADHC) be excluded from coverage under the Medi-Cal program.

This bill would establish the Community-Based Adult Services (CBAS) program, as specified, as a Medi-Cal benefit. The bill would require CBAS providers to meet specified requirements and would require the department to, commencing July 1, 2015, begin delete only end delete certify and enroll begin insert as end insert new CBAS providers begin insert only those providers end insert that are exempt from taxation as a nonprofit entity.

Vote: majority. Appropriation: no. Fiscal committee: yes. State-mandated local program: no.

The people of the State of California do enact as follows:

SECTION 1.  

The Legislature finds and declares all of the
following:

(a) California supports the right for all to live in the most
integrated and community-based setting appropriate, and to be
free from unnecessary institutionalization.

(b) California’s adult day services have experienced significant
instability in recent years due to substantial policy reforms and
budget reductions.

(c) For many years, Adult Day Health Care (ADHC) was a state
plan optional benefit of the Medi-Cal program, offering seniors
and adults with significant disabilities and medical needs an
integrated medical and social services model of care that helped
these individuals continue to live outside of nursing homes or other
institutions.

(d) At its peak in 2004, over 360 adult day health care centers
provided care to over 40,000 medically fragile Californians.

(e) The Budget Act of 2011 and the related trailer bill, Chapter
3 of the Statutes of 2011, eliminated ADHC as a Medi-Cal benefit.
As codified in Article 6 (commencing with Section 14589) of
Chapter 8.7 of Part 3 of Division 9 of the Welfare and Institutions
Code, the Legislature’s intent in supporting the elimination of
ADHC was that it would be replaced by a smaller, less costly, yet
very similar, program. The Legislature sent Assembly Bill 96 of
the 2011-12 Regular Session to the Governor to create such a
program and the Governor vetoed the bill.

begin delete

(f) Advocacy organizations sued the state, in Darling v. Douglas,
which was resolved through a legal settlement (Case No.
C-09-03798 SBA, United States District Court, Northern District
of California), which is the basis for the existing Community­Based
Adult Services (CBAS) program, a smaller, less costly version of
ADHC.

end delete begin insert

(f) Seven plaintiffs filed suit against the State Department of
Health Care Services seeking relief for violation of, among other
laws, due process guaranteed by the United States Constitution,
Title II of the federal Americans with Disabilities Act, and Title
XIX of the federal Social Security Act. On November 17, 2011, the
state and plaintiffs settled the lawsuit (Case No. C-09-03798 SBA,
United States District Court, Northern District of California),
which is the basis for the existing Community-Based Adult Services
(CBAS) program, a smaller, less costly version of ADHC.

end insert

(g) Adult day services and CBAS programs remain a source of
necessary skilled nursing, therapeutic, personal care, supervision,
health monitoring, and caregiver support.

(h) The changes forecast in the state’s demographics demonstrate
a rapidly aging population, at least through the year 2050, thereby
increasing the need and demand for integrated, community-based
services.

(i) A well-defined and well-regulated system of CBAS is
essential in order to meet the rapidly changing needs of California’s
diverse and aging population.

(j) Codifying the begin delete Darling v. Douglas end delete begin insert CBAS end insert settlement agreement
begin delete principles end delete will ensure that thousands of disabled and frail
Californians who relied upon adult day health programs begin delete and are
eligible for CBAS end delete will be able to remain independent and free of
institutionalization for as long as possible.

SEC. 2.  

Article 7 (commencing with Section 14590.10) is
added to Chapter 8.7 of Part 3 of Division 9 of the Welfare and
Institutions Code, to read:

 

Article 7.  Community-Based Adult Services

 

14590.10.  

It is the intent of the Legislature in enacting this
article and related provisions to provide for the development of
begin insert Medi-Cal end insert policies and programs that continue to accomplish all
of the following:

(a) Ensure that elderly persons and adults with disabilities are
not institutionalized inappropriately or prematurely.

(b) Provide a viable alternative to institutionalization for those
elderly persons and adults with disabilities who are capable of
living at home with the aid of appropriate health care or
rehabilitative and social services.

(c) Promote adult day health options, including
Community-Based Adult Services (CBAS), that will be easily
accessible to economically disadvantaged elderly persons and
adults with disabilities, and that will provide outpatient health,
rehabilitative, and social services necessary to permit the
participants to maintain personal independence and lead meaningful
lives.

(d) Ensure that all laws, regulations, and procedures governing
CBAS are enforced equitably regardless of organizational
sponsorship and that all program flexibility provisions are
administered equitably.

(e) Ensure programmatic standards are codified to offer certainty
to providers and regulators.

(f) Compliance with the Special Terms and Conditions of
California’s Bridge to Reform Section 1115(a) Medicaid
Demonstration (11-W-00193/9) begin delete and provisions of the Darling v.
Douglas settlement agreement end delete , including, but not limited to, all of
the following:

(1) Processes and criteria to determine eligibility for receiving
CBAS.

(2) Processes and criteria to reauthorize eligibility for CBAS.

(3) Utilization of the CBAS assessment tool.

(4) Provisions relating to enrollee due process.

(5) Requirements that plans contract with CBAS providers and
pay providers at the prevailing Medi-Cal fee-for-service rate.

(6) Appeals and other state and federal protections.

(7) Aid-paid-pending that provides for payment of services
during any appeal process, and CBAS provider qualifications.

14590.11.  

For purposes of this article, all of the following terms
shall have the following meanings:

(a) “Community-Based Adult Services” or “CBAS” means an
outpatient, facility-based program that delivers nutrition services,
professional nursing care, therapeutic activities, facilitated
participation in group or individual activities, social services,
personal care services and, when specified in the individual plan
of care, physical therapy, occupational therapy, speech therapy,
behavioral health services, registered dietician services, and
transportation.

begin delete

(b) “Darling v. Douglas settlement agreement” means the
settlement agreement entered into under Darling v. Douglas, Case
No. C-09-03798 SBA, United States District Court, Northern
District of California.

(c)

end delete

begin insert (b end insert begin insert ) end insert  “Department” means the State Department of Health Care
Services.

14590.12.  

Notwithstanding the operational period of CBAS
as specified in the Special Terms and Conditions of California’s
Bridge to Reform Section 1115(a) Medicaid Demonstration
(11-W-00192/9), and notwithstanding the duration of the begin delete Darling
v. Douglas end delete begin insert CBAS end insert settlement agreement begin insert , Case No. C-09-03798
SBA end insert , CBAS shall be a Medi-Cal benefit.

14590.13.  

An individual shall be eligible for CBAS if he or
she begin insert meets medical necessity criteria as set forth by the state and end insert
meets one of the following begin delete criteria, as specified in the Darling v.
Douglas settlement agreement: end delete begin insert criteria: end insert

begin delete

(a) Meets nursing facility-A (NF-A) level-of-care criteria or
above.

(b) Has been diagnosed by a physician as having an organic,
acquired or traumatic brain injury, or a chronic mental illness, and
requires assistance or supervision in activities and instrumental
activities of daily living.

(c) Has a moderate to severe cognitive disorder such as dementia
or Alzheimer’s disease.

(d) Has mild cognitive impairment or moderate Alzheimer’s
disease or other dementia and requires assistance or supervision
with activities and instrumental activities of daily living.

(e) Has a developmental disability that meets the definition of
a substantial disability as described in Section 54001(a) of Title
17 of the California Code of Regulations.

end delete begin insert

(a) Meets “Nursing Facility Level of Care A” (NF-A) criteria,
as set forth in the California Code of Regulations, or above NF-A
level of care.

end insert begin insert

(b) Has a moderate to severe cognitive disorder such as
dementia, including dementia characterized by the descriptors of,
or equivalent to, stages 5, 6, or 7 of the Alzheimer’s type.

end insert begin insert

(c) Has a moderate to severe cognitive disorder such as
dementia, including dementia of the Alzheimer’s type and needs
assistance or supervision with two of the following:

end insert begin insert

(1) Bathing.

end insert begin insert

(2) Dressing.

end insert begin insert

(3) Self-feeding.

end insert begin insert

(4) Toileting.

end insert begin insert

(5) Ambulation.

end insert begin insert

(6) Transferring.

end insert begin insert

(7) Medication management.

end insert begin insert

(8) Hygiene.

end insert begin insert

(d) Has a developmental disability. “Developmental disability”
means a disability that originates before the individual reaches
18 years of age, continues or can be expected to continue
indefinitely, and constitutes a substantial disability, as defined in
the California Code of Regulations, for that individual.

end insert begin insert

(e) (1) Has a chronic mental disorder or acquired, organic, or
traumatic brain injury. “Chronic mental disorder” means the
enrollee has one or more of the following diagnoses or its
successor diagnoses included in the most recent version of the
Diagnostic and Statistical Manual of Mental Disorders published
by the American Psychiatric Association:

end insert begin insert

(A) Pervasive developmental disorders.

end insert begin insert

(B) Attention deficit and disruptive behavior disorders.

end insert begin insert

(C) Feeding and eating disorder of infancy, childhood, or
adolescence.

end insert begin insert

(D) Elimination disorders.

end insert begin insert

(E) Schizophrenia and other psychiatric disorders.

end insert begin insert

(F) Mood disorders.

end insert begin insert

(G) Anxiety disorders.

end insert begin insert

(H) Somatoform disorders.

end insert begin insert

(I) Factitious disorders.

end insert begin insert

(J) Dissociative disorders.

end insert begin insert

(K) Paraphilias.

end insert begin insert

(L) Gender identify disorder.

end insert begin insert

(M) Eating disorders.

end insert begin insert

(N) Impulse control disorders not elsewhere classified.

end insert begin insert

(O) Adjustment disorders.

end insert begin insert

(P) Personality disorders.

end insert begin insert

(Q) Medication-induced movement disorders.

end insert begin insert

(2) In addition to the presence of a chronic mental disorder or
acquired, organic, or traumatic brain injury, the enrollee needs
assistance or supervision with one of the following:

end insert begin insert

(A) Two of the following:

end insert begin insert

(i) Bathing.

end insert begin insert

(ii) Dressing.

end insert begin insert

(iii) Self-feeding.

end insert begin insert

(iv) Toileting.

end insert begin insert

(v) Ambulation.

end insert begin insert

(vi) Transferring.

end insert begin insert

(vii) Medication management.

end insert begin insert

(viii) Hygiene.

end insert begin insert

(B) One need set forth in subparagraph (A) and one of the
following:

end insert begin insert

(i) Money management.

end insert begin insert

(ii) Accessing community and health resources.

end insert begin insert

(iii) Meal preparation.

end insert begin insert

(iv) Transportation.

end insert

(f) Meets criteria as established by Article 2 (commencing with
Section 14525).

14590.14.  

(a) CBAS shall be provided and available at licensed
Adult Day Health Care centers that are certified by the department
as CBAS providers and shall be provided pursuant to a participant’s
Individualized Plan of Care, as developed by the center’s
multidisciplinary team. begin insert Medi-Cal managed care plans shall
contract for CBAS with any willing Adult Day Health Care center
that is certified by the department as a CBAS provider. end insert

begin delete

(b) In counties that have implemented managed care, CBAS
shall only be available to eligible individuals enrolled in Medi-Cal
managed care pursuant to Section 14186.3, except as follows:

(1) In counties that have not implemented managed care, CBAS
shall be provided as a fee-for-service benefit to all eligible
enrollees.

(2) For individuals who qualify for CBAS, but do not qualify
for, or who have been exempted from, managed care, CBAS shall
be provided as a fee-for-service benefit.

end delete begin insert

(b) In counties where the department has implemented Medi-Cal
managed care, CBAS shall be available only as a Medi-Cal
managed care benefit pursuant to Section 14186.3, except that for
individuals who qualify for CBAS, but are exempt from enrollment
in Medi-Cal managed care, CBAS shall be provided as a
fee-for-service Medi-Cal benefit.

end insert begin insert

(c) In counties that have not implemented managed care, CBAS
shall be provided as a fee-for-service Medi-Cal benefit to all
eligible Medi-Cal beneficiaries who qualify for CBAS.

end insert

14590.15.  

All Medi-Cal managed care plans shall, at a
minimum, begin delete comply with all of the requirements in the Darling v.
Douglas settlement agreement, including, but not limited to end delete begin insert do all
of end insert the following:

(a) Authorize the number of days of service of CBAS to be
provided at the same amount and duration as would have otherwise
been authorized and provided in Medi-Cal on a fee-for-service
basis. For beneficiaries receiving services on a fee-for-service
basis as authorized by the department on or before June 30, 2012,
the plan shall not reduce or otherwise limit the services without
conducting a face-to-face evaluation.

(b) Contract with any willing CBAS provider in the plan’s
service area at no less than the prevailing Medi-Cal fee-for-service
rates to provide CBAS. Plans shall include all contracting CBAS
providers in its enrollee information material. This subdivision
shall not prevent a plan from paying CBAS providers above the
prevailing Medi-Cal fee-for-service rates.

(c) Meet on a regular basis with CBAS providers and member
representatives on CBAS issues, including the service authorization
process and provider payments.

14590.16.  

(a) CBAS providers shall meet all applicable
licensing, Medi-Cal, and begin delete waiver program end delete begin insert California’s Bridge to
Reform Section 1115(a) Medicaid Demonstra end insert begin insert tion (11-W-00192/9) end insert
standards, including, but not limited to, licensing provisions in
Division 2 (commencing with Section 1200) of the Health and
Safety Code, including Chapter 3.3 (commencing with Section
1570) of Division 2 of the Health and Safety Code, and shall
provide services in accordance with Chapter 10 (commencing with
Section 78001) of Division 5 of Title 22 of the California Code of
Regulations.

(b) CBAS providers shall be enrolled as begin delete Medi-Cal waiver end delete
begin insert California’s Bridge to Reform Section 1115(a) Medicaid
Demonstration (11-W-00192/9) end insert providers and shall meet the
standards specified in this chapter and Chapter 5 (commencing
with Section 54001) of Division 3 of Title 22 of the California
Code of Regulations.

14590.17.  

Commencing July 1, 2015, the department shall
begin delete only end delete certify and enroll begin insert as end insert new CBAS providers begin insert only those providers end insert
that are exempt from taxation under Section 501(c)(3) of the
Internal Revenue Code.

14590.18.  

On or before March 1, 2014, and after consultation
with providers and consumer representatives, begin delete all end delete begin insert each end insert Medi-Cal
managed care begin delete plans end delete begin insert plan end insert shall develop and publish an
implementation plan that describes the processes and criteria to
determine member eligibility for receiving CBAS and
reauthorization of services begin insert , end insert and the criteria for determining the
number of days of service to be provided. In no instance shall a
plan make eligibility for services more restrictive or
administratively burdensome than begin insert under end insert the terms of the begin delete Darling
v. Douglas end delete begin insert CBAS end insert settlement agreement.

14590.19.  

On or before July 1, 2014, and after consultation
with CBAS providers, managed care plans, consumers, and
consumer representatives, the department shall submit to
appropriate legislative budget and policy committees for review
and comment a quality assurance proposal, which shall specify
how the department will address quality assurance in the CBAS
program under managed care.

14590.20.  

begin insert (a) end insert begin insert   end insert Unless otherwise specified, in the event of a
conflict between any provision of this article and the Special Terms
and Conditions of California’s Bridge to Reform Section 1115(a)
Medicaid Demonstration (11-W-00193/9), the Special Terms and
Conditions shall control.

begin insert

(b) This section shall become inoperative on August 31, 2014,
and, as of January 1, 2015, is repealed, unless a later enacted
statute, that becomes operative on or before January 1, 2015,
deletes or extends the dates on which it becomes inoperative and
is repealed.

end insert