BILL ANALYSIS Ó
AB 518
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Date of Hearing: April 23, 2013
ASSEMBLY COMMITTEE ON AGING AND LONG-TERM CARE
Mariko Yamada, Chair
AB 518 (Yamada and Blumenfield) - As Amended: April 11, 2013
SUBJECT : Community-Based Adult Services (CBAS)
SUMMARY : Codifies various terms of "Darling vs. Douglas"
settlement agreement (Case No. C-09-03798 SBA, United States
District Court, Northern District of California), establishing
the CBAS, within statute. Specifically, this bill :
1)Makes legislative findings and declarations regarding
California's support of the right to live in the most
integrated and community-based setting appropriate, and to be
free from unnecessary institutionalization.
2)Establishes legislative intent that provides for the
development of Medi-Cal policies and programs that:
a) Continue to assure that elderly, and younger people
living with disabilities, are not
institutionalized inappropriately or prematurely;
b) Provide for viable alternatives to institutionalization
by assuring the availability of appropriate services;
c) Promotes adult day health options, such as CBAS,
accessible to economically
disadvantaged elders and younger adults living with
disabilities;
d) Ensures that programmatic standards offer certainty to
providers, regulators and beneficiaries; and,
e) Complies with California's Bridge to Reform Section
1115(a) Medicaid Demonstration Waiver.
1)Defines CBAS as an outpatient, facility-based program that
offers nursing, therapeutic activities, social services,
facilitated participation in group or individual activities,
social services, personal care services and other, more
complex care, when specified in the client's plan of care.
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2)Establishes CBAS as a Medi-Cal benefit upon expiration of the
Darling vs. Douglas settlement agreement.
3)Establishes eligibility criteria for CBAS services reflecting
the criteria of the Darling vs. Douglas settlement agreement.
4)Limits access to CBAS to those enrolled in Medi-Cal managed
care (MCMC) in counties where the Department of Health Care
Services (DHCS) has implemented mandatory MCMC, with some
exceptions; and to those who are Medi-Cal beneficiaries in
counties where DHCS has not implemented mandatory MCMC and
CBAS is available.
5)Requires that CBAS be provided at licensed Adult Day Health
Centers (ADHC) certified by DHCS as CBAS providers.
6)Requires MCMC plans to authorize service, for the same number
of days and the same duration, as provided in a Medi-Cal
fee-for-service basis, and requires face-to-face evaluations,
under certain conditions, as specified.
7)Requires managed care plans (MCPs) to publish an
implementation plan that describes the process and criteria to
determine member eligibility for services, reauthorization of
services, and criteria for determining the number of days of
service to be provided.
8) Requires eligibility standards to be no more restrictive, or
administrative burdensome, than under the terms of the Darling
vs. Douglas settlement agreement.
9)Requires CBAS providers to be "non-profit" entities exempt
from taxation under Section 501 (c)(3) of the Internal Revenue
Code, as of July 1, 2015.
10)Requires submission of a quality assurance proposal to
relevant budget and policy committees of the Legislature after
the DHCS has consulted with CBAS providers, MCPs, consumers
and consumer representatives, which will address how DHCS will
address quality assurance within the CBAS program under
managed care.
11)Acknowledges that the terms of the CBAS settlement agreement,
as ordered by the Superior Courts of California, shall prevail
when programmatic conflicts arise through August of 2014 when
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the settlement agreement expires.
EXISTING LAW:
1)In partnership with the federal government, establishes the
Medi-Cal program, to provide various health and long-term
services to low-income women and children, seniors, and people
with disabilities.
2)Authorizes DHCS to enter into contracts with MCPs to provide
services to Medi-Cal enrollees.
3)Requires eligible families, children, seniors, and people with
disabilities to enroll in a Medi-Cal MCP for health care
services in specified counties.
4)Establishes the Coordinated Care Initiative (CCI) that
required DHCS to seek federal approval to establish
demonstration sites in up to eight counties to better serve
the state's eligible seniors and persons with disabilities by
integrating delivery of medical, behavioral, and long-term
care services, and to identify strategies to integrate
Medicare and Medi-Cal for people in both programs (dual
eligible).
5) Authorizes DHCS to require SPDs who are eligible for
Medi-Cal only to enroll in MCMC plans for Long-Term Services
and Support.
FISCAL EFFECT : Unknown
PURPOSE OF THE BILL: Currently, no statute authorizes CBAS. The
program operates under authority of a court directive scheduled
to expire in August 2014, along with an administrative request
granted by the federal government through an "1115" waiver. An
1115 waiver allows states to experiment, pilot or demonstrate
projects which are likely to assist in promoting the objectives
of the Medicaid program. The 1115 waivers are flexible, so
states have room to develop Medicaid Plans that suit their
state's health care goals.
According to the author, without legislative action, the future
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of the CBAS program is uncertain after the court directive
issued in December of 2011, expires in August of 2014. At that
time, program participants risk losing the vital health and
social services provided by CBAS, and the state risks further
costly court battles and more expensive institutional placements
for CBAS participants. Placing the court-ordered CBAS program
into statute assures medically fragile Californians and their
families' certainty and access to a range of social and health
supports delivered in a clinical setting that avoids costlier
institutional placements. Like daycare for children in working
families, this daytime care model for frail, elder or
functionally impaired adults is essential in order to meet the
moral, ethical, and legal duties of caregiving families.
BACKGROUND:
HISTORY : In 1978, California authorized the establishment of 5
Adult Day Health Care Programs in Sacramento, San Francisco and
San Diego. For the next 20 years, the state extended start-up
grants to non-profit entities wishing to provide such services,
ultimately reaching a roughly $3.5 million investment amongst
about 66 sites. A report at the time issued through the Offices
of Senator Henry Mello, identified state cost savings of about
$7 for every $1 spent on ADHC, and identified an unmet need of
roughly 600 sites. In 1994, SB 1492 (Mello), (Chapter 1121,
Statutes of 1994), removed that non-profit tax status
restrictions and permitted for profit companies to develop ADHC
programs. Upon the passage of SB 1492, the number of centers
grew from 72 to over 350 in 2004.
Since the rapid expansion early in the century, a multiplicity
of government initiated reforms occurred in what appears to be a
partial attempt to acknowledge the growth of the population
dependent upon adult day services, and find efficiencies.
Significant attention and legislative activity has been focused
on the dramatic growth of ADHC centers, and increased Medi-Cal
costs for ADHC. Less acknowledged is why this rapid growth
occurred, even though Senator Mello's report described
significant unmet need.
As the number of centers grew, the former Department of Health
services (DHS) expressed concerns that some centers were
providing only very limited services, and potentially engaging
in Medi-Cal fraud by not complying with state requirements,
although wide-spread fraud was never detected. In addition, in
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2004 the federal CMS ordered California to change the ADHC
program from an optional Medicaid benefit to a home- and
community-based program provided through a 1915 (c) Medicaid
waiver. As part of the 2004-05 budget, the Legislature
instituted a moratorium on new licenses for ADHC, with the
intent of enacting program reforms, and the moratorium remained
in effect. The California Association of Adult Day Services
(CAADS), a professional organization representing ADHC providers
throughout California, working cooperatively with DHS, made
several attempts to secure a change in federal law that would
protect California's model of ADHC as an optional Medicaid
benefit, but those efforts failed. In 2006, SB 1755 (Chesbro:
Chapter 691, statutes of 2007) revised eligibility and moved the
program to a cost-based reimbursement system. Reforms in 2003
to limit the numbers of days of services was held a violation of
an individual's right to live in the most home-like, or
"integrated" environment. In 2011, what the legislature
intended to be a program reduction turned into a full-scale
elimination. Consumers sued in what is now known as the Darling
vs. Douglas case, and both the state and the plaintiffs settled
on a program to address the immediate and ongoing needs of
consumers, known as Community Based Adult Services, or CBAS.
After a decade of instability, the loss of ADHC as an optional
Medi-Cal benefit in 2011 nearly devastated an entire industry of
day services upon which California's aging population, health
care providers and families have come to rely.
COMMUNITY BASED ADULT SERVICES: CBAS assures that, like
children, elders and other adults with disabilities that require
health monitoring and health supervision and whom are at great
risk if left alone, in their homes to fend for themselves, have
access to necessary health supervision, services and supports.
Nursing homes and other institutional settings are rapidly
changing due to shorter hospital stays, better management of
chronic illnesses, and changing governmental policies that taken
together conspire in an increasing reliance upon home and
community-based options to meet the needs of long-term service
and support seeking populations. Indeed, the Department of
Finance's Demographic Research unit predicts a 10% growth in the
general population between 2010 and 2020. During the same
period, estimates are that the 65+ population will grow by 44%
and the 85+ population will grow by just over 20%.
During the recent transition period that saw the entire
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case-load of the Adult Day Health Care program assessed,
re-assessed, and services re-authorized to roughly 30,000
participants 48 sites with an accumulated case-load of over 3800
participants were shuttered. As former ADHC enrollees began to
seek services under the terms of the CBAS settlement agreement,
reports of a range of concerns began to emerge. By September
24, 2012 when this committee conducted an oversight hearing on
the ADHC to CBAS transition, eligibility determination
procedures, treatment authorizations, appeal hearing processes,
quality assurance, and access were all at issue. Based on
testimony from a range of experts, due to the nature of the
fragility and vulnerability of the population seeking CBAS
services, questions or uncertainty about eligibility, treatment
authorizations, appeal hearings, quality assurance, or access
could result in an unnecessary and unintended
institutionalization, and anecdotal information collected by the
committee verified this misfortune.
Providing permanent codification assures consumers, providers
and regulators with a clear articulation of the program
parameters to support the needs of dependent adults, define
services so providers can focus upon quality and services, and
establish a stable apparatus by which to regulate and monitor
the service in an efficient and beneficial manner.
PREVIOUS LEGISLATION :
SB 1008 (Committee on Budget and Fiscal Review), Chapter 33,
Statutes of 2012 and SB 1036
(Committee on Budget and Fiscal Review), Chapter 45, Statutes of
2012 authorize the CCI as an
eight-county pilot project to: i) integrate Medi-Cal and
Medicare benefits under managed care for dual eligibles; and,
ii) integrate LTSS under managed care for dual eligibles and
Medi-Cal
only SPDs.
AB 96 (Committee on Budget, 2011), would have established the
KAFI program, and required DHCS to submit an application to CMS
to implement the program. AB 96 was vetoed by Governor Brown.
AB 97 (Committee on Budget), Chapter 3, Statutes of 2011, among
other provisions eliminates
ADHC as a Medi-Cal benefit.
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SB 208 (Steinberg), Chapter 714, Statutes of 2010, contains the
provisions implementing Section
1115(b) Medicaid Demonstration Waiver from CMS entitled "A
Bridge to Reform Waiver."
Among the provisions, this waiver authorized mandatory
enrollment into MCPs of over 600,000
low-income SPDs who are eligible for Medi-Cal only (not
Medicare) in 16 counties.
SB 117 (Corbett), Chapter 165, Statutes of 2009, extends the
deadline by which the DHCS was required to establish a new
Medi-Cal rate reimbursement methodology for ADHCs, from August
1, 2010 to August 1, 2012.
AB 572 (Berg), Chapter 648, Statutes of 2008 clarifies
requirements pertaining to ADHC hours
of service, core staff, and staff absences, transportation
services, and meal requirements.
SB 1755 (Chesbro), Chapter 691, Statutes of 2006, establishes
new eligibility criteria for ADHC
services for the purposes of Medi-Cal reimbursement, required
the Department of Health
Services, (now DHCS), to establish a cost-based Medi-Cal
reimbursement methodology for
AHDC services, and establishes daily core services to be
provided by ADHC centers to each
participant.
POLICY COMMENTS:
1)CHALLENGED BY A LACK OF INFORMATION: AB 518 is intended to
codify the terms of the CBAS settlement agreement in state
statute in order that this model of service delivery remains
available to eligible populations. Compelling demographics,
upward pressure of long-term health care costs, and consumer
preferences support the need for a reliable, uniform program.
Historical misinformation about fraud in the program has never
been fully documented. Misinformation about the elimination
of the ADHC program and creation of, and migration to, the
CBAS program resulted in fear and anxiety among program
participants. Even DHCS acknowledged these concerns and
extended the timeline for enrollment into the new CBAS program
in 2012. Additional information about recent reductions to
the program "saving" the state money has not been fully
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documented.
Recommended amendments :
1)14590.10 which establishes legislative intent that
programmatic standards are codified to offer certainty to
providers and regulators. Families, caregivers and
beneficiaries need the same level of confidence. Therefore,
the following amendment is recommended for 14590.10:
(e) Ensure programmatic standards are codified to offer
certainty to providers and regulators , regulators,
beneficiaries, their families, caregivers and communities .
2)14590.12 establishes CBAS as a Medi-Cal benefit. The author
may wish to consider including language that assures that
managed care health plan contracts include provisions of CBAS
services.
14590.12. Notwithstanding the operational period of CBAS as
specified in the Special Terms and Conditions of California's
Bridge to Reform Sections 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, 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 demonstration that is
operative at the time of enactment of this section. Any
modifications to the CBAS program that differ from the Terms
and Conditions of the Demonstration shall be permitted only if
they offer more protections or permit greater access to CBAS.
3)14590.19 calls for the DHCS to submit a plan for quality
assurance within the CBAS program. 14590.19 should be amended
as follows:
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 DHCS will address quality assurance in the
CBAS program under managed care .
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This bill passed out of Assembly Health on April 9th with a vote
of 19-0.
REGISTERED SUPPORT / OPPOSITION :
Support
Community Clinic Association of Los Angeles (CCALAC)
County Welfare Directors Association (CWDA)
LeadingAge California (formerly Aging Services of California)
National Association of Social Workers, California Chapter
(NASW-CA)
Opposition
None on file.
Analysis Prepared by : Robert MacLaughlin / AGING & L.T.C. /
(916) 319-3990