Amended in Senate May 30, 2013

Amended in Assembly April 11, 2013

California Legislature—2013–14 Regular Session

Assembly Bill No. 518

Introduced by Assembly Members Yamada and Blumenfield

(Coauthors: Assembly Members Ammiano, Brown, Chesbro, begin insert Garcia, end insert and Ting)

February 20, 2013

An act to begin insert add Sections 1596.3 and 1596.4 to the Health and Safety Code, and to end insert add Article 7 (commencing with Section 14590.10) to Chapter 8.7 of Part 3 of Division 9 of, and to repeal Section 14590.20 of, the Welfare and Institutions Code, relating to begin delete Medi-Cal end delete begin insert adult day health care end insert .

LEGISLATIVE COUNSEL’S DIGEST

AB 518, as amended, Yamada. Community-based adult begin delete services. end delete begin insert services: adult day health care centers. end insert

begin insert

Existing law, the California Adult Day Health Care Act, provides for the licensure and regulation of adult day health care centers, with administrative responsibility shared between the State Department of Public Health, the State Department of Health Care Services, and the California Department of Aging pursuant to an interagency agreement. Existing law provides that a negligent, repeated, or willful violation of a provision of the California Adult Day Health Care Act is a misdemeanor.

end insert begin insert

This bill would require an adult day health care center licensed pursuant to the act to comply with specified staffing requirements, maintain policies and procedures for providing supportive health care services to participants, and conduct and document training, as prescribed.

end insert begin insert

Because a negligent, repeated, or willful violation of these provisions would be a crime, the bill would impose a state-mandated local program.

end insert

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, certify and enroll as new CBAS providers only those providers that are exempt from taxation as a nonprofit entity.

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The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.

end insert begin insert

This bill would provide that no reimbursement is required by this act for a specified reason.

end insert

Vote: majority. Appropriation: no. Fiscal committee: yes. State-mandated local program:  begin delete no end delete begin insert yes end insert .

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.

(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.

(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 CBAS settlement agreement will ensure that
thousands of disabled and frail Californians who relied upon adult
day health programs will be able to remain independent and free
of institutionalization for as long as possible.

begin insert

begin insert SEC. 2. end insert   

end insert

begin insert Section 1596.3 is added to the end insert begin insert Health and Safety Code end insert begin insert ,
to read: end insert

begin insert

begin insert 1596.3. end insert   

(a) An adult day health care center shall be staffed in
accordance with all of the following:

(1) An administrator or program director shall be on duty at
all times. For purposes of this section, “on duty” means physically
present in the center at all times during the center’s program hours
in which participants are present. An adult day health care center
shall have a policy for coverage of the administrator or program
director during times of his or her absence.

(2) (A) The registered nurse (RN) ratio at an adult day health
care center shall be one RN for every 40 participants. A half-time
licensed vocational nurse (LVN) shall be staffed for every
increment of 10 participants in average daily attendance exceeding
40 participants.

(B) Except as specified in subparagraph (C), at least one RN
shall be physically present in the center at all times during the
center’s program hours in which participants are present. An adult
day health care center may supplement the RN staff with LVN staff
as described in this subparagraph with at least one RN physically
present in the center at times during the center’s program hours
in which participants are present.

(C) For short intervals, not to exceed 60 minutes, an LVN may
be physically present with the RN immediately available by
telephone if needed.

(3) The program aid or nurse assistant staffing shall be at a
ratio of one program aid or nurse assistant on duty for up to 16
participants present in the building. Any number of participants
up to the next 16 requires an additional program aid or nurse
assistant.

(b) An adult day health care center’s staffing requirements shall
be based on the average of the previous quarter’s average daily
attendance (ADA). The ADA may be tied to various shifts within
the day or various days of the week so long as the adult day health
care center can demonstrate that it is consistent.

end insert

begin insert

begin insert SEC. 3. end insert   

end insert

begin insert Section 1596.4 is added to the end insert begin insert Health and Safety Code end insert begin insert ,
to read: end insert

begin insert

begin insert 1596.4. end insert   

(a) An adult day health care center shall maintain
policies and procedures for providing supportive health care
services to participants, including those participants with special
needs.

(b) Training of adult day health care center staff shall include
an initial orientation for new staff, review of all updated policies
and procedures, hands-on instruction for new equipment and
procedures, and regular updates on state and federal requirements,
such as abuse reporting and fire safety.

(c) Training shall be conducted and documented on a quarterly
basis and shall include supporting documentation on the
information taught, attendees, and the qualifications of the
instructors.

end insert

begin delete SEC. 2. end delete
begin insert SEC. 4. end insert   

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
Medi-Cal 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 begin delete and end delete begin insert , end insert regulators begin insert , beneficiaries and their families,
caregivers, and communities end insert .

(f) Compliance with the Special Terms and Conditions of
California’s Bridge to Reform Section 1115(a) Medicaid
Demonstration (11-W-00193/9), 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 begin insert , end insert and, when specified in the individual plan
of care, physical therapy, occupational therapy, speech therapy,
behavioral health services, registered dietician services, and
transportation.

(b) “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 CBAS
settlement agreement, Case No. C-09-03798 SBA, CBAS shall be
a Medi-Cal benefit begin insert , and shall be included as a covered service in
contracts with all managed health care plans, with standards,
eligibility criteria, and provisions that are at least equal to those
contained in the Special Terms and Conditions of the
demonstration on the date the act that added this section is
chaptered. Any modifications to the CBAS program that differ
from the Special Terms and Conditions of the demonstration shall
be permitted only if they offer more protections or permit greater
access to CBAS end insert .

begin delete

14590.13.  

An individual shall be eligible for CBAS if he or
she meets medical necessity criteria as set forth by the state and
meets one of the following criteria:

(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.

(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.

(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:

(1) Bathing.

(2) Dressing.

(3) Self-feeding.

(4) Toileting.

(5) Ambulation.

(6) Transferring.

(7) Medication management.

(8) Hygiene.

(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.

(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:

(A) Pervasive developmental disorders.

(B) Attention deficit and disruptive behavior disorders.

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

(D) Elimination disorders.

(E) Schizophrenia and other psychiatric disorders.

(F) Mood disorders.

(G) Anxiety disorders.

(H) Somatoform disorders.

(I) Factitious disorders.

(J) Dissociative disorders.

(K) Paraphilias.

(L) Gender identify disorder.

(M) Eating disorders.

(N) Impulse control disorders not elsewhere classified.

(O) Adjustment disorders.

(P) Personality disorders.

(Q) Medication-induced movement disorders.

(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:

(A) Two of the following:

(i) Bathing.

(ii) Dressing.

(iii) Self-feeding.

(iv) Toileting.

(v) Ambulation.

(vi) Transferring.

(vii) Medication management.

(viii) Hygiene.

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

(i) Money management.

(ii) Accessing community and health resources.

(iii) Meal preparation.

(iv) Transportation.

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

end delete begin insert

begin insert 14590.13. end insert   

The following individuals shall meet criteria for
eligibility for CBAS if they meet the criteria of any one or more of
the following categories:

(a) Individuals who meet both of the following:

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

(2) Meet ADHC eligibility and medical necessity criteria
contained in subdivisions (a), (c), (d), and (e) of Section 14525,
paragraphs (1), (3), (4), and (5) of subdivision (d) of Section
14526.1, and subdivision (e) of Section 14526.1.

(b) (1) Individuals who have an organic, acquired, or traumatic
brain injury or chronic mental illness. “Chronic mental illness”
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:

(A) Pervasive developmental disorders.

(B) Attention deficit and disruptive behavior disorders.

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

(D) Elimination disorders.

(E) Other disorders of infancy, childhood, or adolescence.

(F) Schizophrenia and other psychotic disorders.

(G) Mood disorders.

(H) Anxiety disorders.

(I) Somatoform disorders.

(J) Factitious disorders.

(K) Dissociative disorders.

(L) Paraphilias.

(M) Gender identity disorders.

(N) Eating disorders.

(O) Impulse-control disorders not elsewhere classified.

(P) Adjustment disorders.

(Q) Personality disorders.

(R) Medication-induced movement disorders.

(2) In addition to the presence of a chronic mental illness or
acquired, organic, or traumatic brain injury, the individual meets
ADHC eligibility and medical necessity criteria contained in
Section 14525 and subdivisions (d) and (e) of Section 14526.1.

(3) Notwithstanding subdivision (b) of Section 14525 and
subparagraph (A) of paragraph (2) of subdivision (d) of Section
14526.1, the individuals must demonstrate a need for assistance
or supervision with at least one of the following:

(A) Two of the following Activities of Daily Living/Instrumental
Activities of Daily Living: bathing, dressing, self-feeding, toileting,
ambulation, transferring, medication management, and hygiene.

(B) One Activity of Daily Living/Instrumental Activity of Daily
Living listed in subparagraph (A), and money management,
accessing resources, meal preparation, or transportation.

(4) For eligibility purposes, applicants or recipients do not need
to show a need for a service at the center providing CBAS services
to be included in the qualifying Activities of Daily
Living/Instrumental Activities of Daily Living, including money
management, accessing resources, meal preparation, and
transportation.

(c) Individuals who meet both of the following:

(1) Have moderate to severe Alzheimer’s Disease or other
dementia, characterized by the descriptors of, or equivalent to,
Stages 5, 6, or 7 Alzheimer’s Disease.

(2) Meet ADHC eligibility and medical necessity criteria
contained in subdivisions (a), (c), (d), and (e) of Section 14525,
paragraphs (1), (3), (4), and (5) of subdivision (d) of Section
14526.1, and subdivision (e) of Section 14526.1.

(d) (1) Individuals who meet both of the following:

(A) Have mild cognitive impairment, including moderate
Alzheimer’s Disease or other dementia, characterized by the
descriptors of, or equivalent to, Stage 4 Alzheimer’s Disease.

(B) Meet ADHC eligibility and medical necessity criteria
contained in Section 14525 and subdivisions (d) and (e) of Section
14526.1.

(2) Notwithstanding subdivision (b) of Section 14525 and
subparagraph (A) of paragraph (2) of subdivision (d) of Section
14526.1, the individual must demonstrate a need for assistance or
supervision with two of the following Activities of Daily
Living/Instrumental Activities of Daily Living: bathing, dressing,
self-feeding, toileting, ambulation, transferring, medication
management, and hygiene.

(3) For eligibility purposes, applicants or recipients do not need
to show a need for a service at the center providing CBAS services
to be included in the qualifying Activities of Daily
Living/Instrumental Activities of Daily Living.

(e) Individuals who meet both of the following:

(1) Have a developmental disability and meet the criteria for
regional center eligibility. “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.

(2) Meet ADHC eligibility and medical necessity criteria
contained in subdivisions (a), (c), (d), and (e) of Section 14525,
paragraphs (1), (3), (4), and (5) of subdivision (d) of Section
14526.1, and subdivision (e) of Section 14526.1.

end insert

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. 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.

(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.

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

14590.15.  

All Medi-Cal managed care plans shall, at a
minimum, do all of 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 California’s Bridge to Reform Section
1115(a) Medicaid Demonstration (11-W-00192/9) 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 California’s Bridge to
Reform Section 1115(a) Medicaid Demonstration (11-W-00192/9)
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
certify and enroll as new CBAS providers only those providers
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, each Medi-Cal
managed care plan shall develop and publish an implementation
plan that describes the processes and criteria to determine member
eligibility for receiving CBAS and reauthorization of services, 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 under the
terms of the CBAS 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 begin insert the end insert
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 begin delete under managed care end delete .

14590.20.  

(a) 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.

(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.

begin insert

begin insert SEC. 5. end insert   

end insert begin insert

No reimbursement is required by this act pursuant to
Section 6 of Article XIII B of the California Constitution because
the only costs that may be incurred by a local agency or school
district will be incurred because this act creates a new crime or
infraction, eliminates a crime or infraction, or changes the penalty
for a crime or infraction, within the meaning of Section 17556 of
the Government Code, or changes the definition of a crime within
the meaning of Section 6 of Article XIII B of the California
Constitution.

end insert