BILL ANALYSIS                                                                                                                                                                                                    Ó






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

          BILL NO:       AB 518
          AUTHOR:        Yamada and Blumenfield
          AMENDED:       May 30, 2013 
          HEARING DATE:  June 12, 2013
          CONSULTANT:    Bain

           SUBJECT  :  Community-based adult services.
           
          SUMMARY  : Continues Community Based Adult Services as a Medi-Cal  
          benefit and included as a covered service in contracts with all  
          Medi-Cal managed health care plans following the expiration of a  
          legal settlement and a Medicaid waiver in effect until August  
          2014, establishes eligibility criteria for Community Based Adult  
          Services, requires an Adult Day Health Center to meet specified  
          staffing standards, and establishes requirements for Community  
          Based Adult Services providers, including a requirement that the  
          Department of Health Care Services certify and enroll as new  
          Community Based Adult Services providers only those providers  
          that are exempt from taxation under Section 501(c)(3) of the  
          federal Internal Revenue Code, commencing July 1, 2015.

          Existing law:
          1.Establishes the Medi-Cal program, administered by the  
            Department of Health Care Services (DHCS), under which health  
            care services are provided to qualified, low-income persons. 

          2.Excludes, to the extent permitted by federal law, adult day  
            health care (ADHC) from coverage under the Medi-Cal program.

          3.Authorizes DHCS to implement a one-year moratorium on the  
            certification and enrollment into the Medi-Cal program of new  
            ADHC centers on a statewide basis, or within a geographic  
            area, with specified exemptions from the moratorium. Permits  
            the director of DHCS to extend this moratorium, if necessary,  
            to coincide with the implementation date of the ADHC centers  
            waiver.

          4.Requires DHCS, to the extent that federal financial  
            participation is available, and pursuant to a demonstration  
            project or waiver of federal law, to establish specified  
            Medi-Cal pilot projects in up to 8 counties, and requires  
            long-term services and supports (LTSS) to be available to  
            beneficiaries residing in counties participating in those  
                                                         Continued---



          AB 518 | Page 2




            pilot projects. Includes Community Based Adult Services (CBAS)  
            within the definition of LTSS. This demonstration project is  
            known as the Coordinated Care Initiative (CCI).
          
          5.Requires, as part of the CCI, all Medi-Cal LTSS to be services  
            covered under Medi-Cal managed care health plan contracts and  
            available only through plans to beneficiaries residing in  
            counties participating in the demonstration, with specified  
            exemptions.




          This bill:
          1.Requires CBAS to be a Medi-Cal benefit and to be included as a  
            covered service in all Medi-Cal managed health care plans,  
            with standards, eligibility criteria, and provisions that are  
            at least equal to those contained in the Special Terms and  
            Conditions (STCs) of California's Bridge to Reform Medicaid  
            Demonstration (Medicaid Demonstration). Only allows  
            modifications to the CBAS program that differ from the STCs if  
            they offer more protections or permit greater access to CBAS.

          2.Defines "CBAS" as 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. 

          3.Establishes eligibility criteria for participation in CBAS as  
            follows:

                  a.        Individuals who meet both "Nursing Facility  
                    Level of Care A" (NF-A) criteria, or above NF-A, and  
                    who meet ADHC eligibility and medical necessity  
                    criteria contained in specified provisions of law.

                  b.        Individuals who have an organic, acquired, or  
                    traumatic brain injury or chronic mental illness, as  
                    defined and who meet ADHC eligibility and medical  
                    necessity criteria contained in specified provisions  
                    of existing law. 





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                  c.        Individuals who meet ADHC eligibility and  
                    medical necessity criteria contained in specified  
                    provisions of law and who demonstrate a need for  
                    assistance or supervision with two of specified  
                    Activities of Daily Living (ADLs)/Instrumental  
                    Activities of Daily Living (IADLs) or one ADL/IADL and  
                    money management, accessing resources, meal  
                    preparation, or transportation;

                  d.        Individuals who 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 and who meet ADHC eligibility  
                    and medical necessity criteria contained in specified  
                    provisions of existing law; 

                  e.        Individuals who have a mild cognitive  
                    impairment, including moderate Alzheimer's Disease or  
                    other dementia, characterized by the descriptors of,  
                    or equivalent to, Stage 4 Alzheimer's Disease and meet  
                    ADHC eligibility and medical necessity criteria  
                    contained in specified provisions of existing law and  
                    who must demonstrate a need for assistance or  
                    supervision with two ADLs/IADLs; and,

                  f.        Individuals who have a developmental  
                    disability and meet the criteria for regional center  
                    eligibility and who meet ADHC eligibility and medical  
                    necessity criteria contained in specified provisions  
                    of existing law. 

           4. Requires Medi-Cal managed care plans to contract for CBAS  
             with any willing ADHC center that is certified by DHCS as a  
             CBAS provider.

           5. Requires, in counties where DHCS has implemented Medi-Cal  
             managed care, CBAS to be available only as a Medi-Cal managed  
             care benefit, except for individuals who are exempt from  
             enrollment in Medi-Cal managed care. Requires CBAS to be  
             provided as a fee-for-service Medi-Cal benefit to all  
             eligible Medi-Cal beneficiaries who qualify for CBAS in  
             counties that have not implemented Medi-Cal managed care.

          6.Requires all Medi-Cal managed care plans, at a minimum, to do  
            all of the following:




          AB 518 | Page 4





                  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. Prohibits plans,  
                    for beneficiaries receiving services on a  
                    fee-for-service basis as authorized by DHCS on or  
                    before June 30, 2012, from reducing or otherwise  
                    limiting 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.  
                    Requires plans to include all contracting CBAS  
                    providers in its enrollee information material.  
                    Permits plans to pay CBAS providers above the  
                    prevailing Medi-Cal fee-for-service rates; and, 

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

          7.Requires CBAS to be provided and available at licensed ADHC  
            centers that are certified by DHCS as CBAS providers, and  
            requires CBAS to be provided pursuant to a participant's  
            Individualized Plan of Care, as developed by the center's  
            multidisciplinary team. 

          8.Requires DHCS, commencing July 1, 2015, to 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. (IRC).

          9.Requires CBAS providers to meet all applicable licensing,  
            Medi-Cal, and Medicaid Demonstration standards, including, but  
            not limited to, licensing and service standard provisions.

          10.Requires CBAS providers to be enrolled as Medicaid  
            Demonstration providers and to meet the standards specified in  
            this bill and specified provisions of existing regulations. 

          11.Requires an ADHC center to meet specified staffing standards,  
            including requiring an administrator or program director to be  
            on duty at all times, requiring a registered nurse (RN) ratio  




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            of one RN for every 40 participants, requiring a half-time  
            licensed vocational nurse (LVN) for every increment of 10  
            participants in average daily attendance exceeding 40  
            participants, requiring at least one RN to be physically  
            present in the ADHC center at all times during the ADHC's  
            program hours in which participants are present. 

          12.Permits an ADHC to supplement the RN staff with LVN staff  
            with at least one RN physically present in the ADHC center at  
            times during the center's program hours in which participants  
            are present. Permits an LVN to be physically present with the  
            RN immediately available by telephone if needed for short  
            intervals, not to exceed 60 minutes. 

          13.Requires the program aid or nurse assistant staffing to be at  
            a ratio of one program aid or nurse assistant on duty for up  
            to 16 participants present in the building. Requires any  
            number of participants, up to the next 16 participants, an  
            additional program aid or nurse assistant.

          14.Requires an ADHC's staffing requirements to be based on the  
            average of the previous quarter's average daily attendance  
            (ADA). Permits the ADA to be tied to various shifts within the  
            day or various days of the week so long as the ADHC center can  
            demonstrate that it is consistent.

          15.Requires an ADHC to maintain policies and procedures for  
            providing supportive health care services to participants,  
            including participants with special needs.

          16.Requires training for ADHC staff, including 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. Requires training to be conducted and documented  
            on a quarterly basis and to include supporting documentation  
            on the information taught, attendees, and the qualifications  
            of the instructors.

          17.Requires each Medi-Cal managed care plan, on or before March  
            1, 2014, and after consultation with providers and consumer  
            representatives, to develop and publish an implementation plan  
            that describes the processes and criteria to determine  
            eligibility for receiving CBAS, reauthorization of services,  
            and the criteria for determining the number of days of service  




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            to be provided. Prohibits a plan from making eligibility for  
            services more restrictive or administratively burdensome than  
            under the terms of the CBAS settlement agreement.

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

          19.Requires, unless otherwise specified in this bill, in the  
            event of a conflict between any provision of this bill and the  
            STCs, the STCs to control. Makes this provision inoperative on  
            August 31, 2014, and, as of January 1, 2015, is repealed.

          20.States legislative intent in enacting the provisions of this  
            bill, including ensuring that elderly persons and adults with  
            disabilities are not institutionalized inappropriately or  
            prematurely, providing a viable alternative to  
            institutionalization, promoting adult day health options  
            (including CBAS), ensuring that that all laws, regulations,  
            and procedures governing CBAS are enforced equitably and that  
            all program flexibility provisions are administered equitably,  
            ensuring programmatic standards are codified to offer  
            certainty to providers and regulators, and ensuring compliance  
            with the STCs of the Medicaid Demonstration.
                                    
           FISCAL EFFECT  :  According to the Assembly Appropriations  
          Committee, unknown, but likely minor costs. No additional state  
          costs until at least August 2014, when the court directive from  
          Esther Darling, et al. v. Toby Douglas, et al., (No.C-09-03798)  
          expires.  In addition, the federal waiver under which CBAS  
          services are being provided continues until November 2015.   
          Beyond that date, costs are uncertain but given the state's new  
          Coordinated Care Initiative (CCI), transitioning seniors and  
          people with disabilities (SPDs) into managed care plans, and the  
          role CBAS plays in the CCI, it seems unlikely significant  
          changes will occur.

           PRIOR VOTES  :  
          Assembly Health:              19- 0
          Assembly Aging and Long Term Care:7- 0
          Assembly Appropriations:      17- 0
          Assembly Floor:               74- 0




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          COMMENTS  :  
           1.Author's statement. This bill establishes the CBAS program as  
            a Medi-Cal eligible benefit.  In 2011, after more than thirty  
            years as a proven, cost effective program supporting frail,  
            nursing-home eligible seniors and persons with disabilities,  
            the Legislature eliminated ADHC as a Medi-Cal benefit. The  
            Legislature agreed to the elimination because of the ongoing  
            fiscal crisis with the hope, if not understanding, that a  
            similar, though smaller program would replace ADHC.  
            Subsequently, a lawsuit by consumers sought restoration.  The  
            state and plaintiffs reached a settlement agreement that  
            created CBAS to satisfy the state's obligation to serve and  
            support program participants in community settings. CBAS, like  
            ADHC, is a day-long service that offers integrated social and  
            health care to "nursing home-eligible" persons in a group  
            setting. The services and support help participants stay  
            active and improve health. CBAS allows families to balance the  
            care needs of frail loved ones with other responsibilities  
            such as work. Currently, no statute authorizes CBAS.  Program  
            participants risk losing the vital health and social services  
            provided by CBAS upon expiration of the temporary settlement  
            agreement. 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  
            during the work day.

          2.Background ADHC and CBAS. All state Medicaid programs have the  
            option to provide and receive federal financial participation  
            for optional services, in addition to those services required  
            by federal law. ADHC was an optional community-based day  
            program in fee-for-service Medi-Cal for low-income elders and  
            younger disabled adults who are at risk for being placed in a  
            nursing home. ADHC services included physical therapy,  
            occupational therapy, speech therapy and recipient  
            transportation to and from the ADHC facility. Eligibility was  
            based on an individual's functional limitations, severity of  
            chronic or post-acute health conditions, and risk for nursing  
            home placement. ADHC services were provided at licensed ADHC  
            centers, and included medical services, nursing care, meals,  
            social and therapeutic activities, and transportation. ADHC  
            centers could be both for-profit and not-for-profit. 

            Governors Schwarzenegger and Brown both proposed the  
            elimination of ADHC as an optional Medi-Cal benefit. In March  




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            2011, Governor Brown signed AB 97 (Committee on Budget),  
            Chapter 3, Statutes of 2011 into law to eliminate ADHC as a  
            benefit in Medi-Cal, subject to approval by the federal CMS,  
            in order to achieve General Fund savings and because of  
            concerns over fraud in the program. In June 2011, the  
            Legislature passed AB 96 (Committee on Budget), which  
            authorized the creation of the Keeping Adults Free from  
            Institutions (KAFI) program to replace ADHC. In July of 2011,  
            the Governor vetoed AB 96, and instead proposed that his  
            Administration would develop an alternate plan to transition  
            ADHC participants to other services. In August 2011, DHCS  
            presented its plan for transitioning ADHC participants to  
            other services, which included the enrollment of ADHC  
            participants in Medi-Cal managed care. From mid-August through  
            October of 2011, DHCS began implementing the managed care  
            portion of its transition plan. 

            In June 2011, seven plaintiffs filed a class action lawsuit  
            with the U.S. District Court on behalf of ADHC participants.  
            The lawsuit, Esther Darling, et al. v. Toby Douglas, et al.,  
            was brought against DHCS to block the elimination of ADHC as  
            an optional Medi-Cal benefit, as the plaintiffs argued the  
            changes would place them at risk of unnecessary  
            institutionalization, violated their due process rights and  
            the restrictive eligibility criteria in a previous ADHC bill  
            violated Medicaid requirements. In November 2011, DHCS  
            announced that it had reached a settlement with plaintiffs to  
            resolve the lawsuit. Under the terms of the settlement, ADHC  
            will be eliminated and replaced by a new program called CBAS,  
            which would be included under the state's Medicaid  
            Demonstration. CBAS was defined in the settlement as an  
            outpatient facility based program that delivers skilled  
            nursing care, social services, therapies, personal care,  
            family/caregiver training and support, meals and  
            transportation to eligible beneficiaries. In January 2012, the  
            Court granted final approval of the settlement, which lasts  
            for 30 months or until August 2015. Medi-Cal managed care  
            plans operating in County Organized Health Systems counties  
            began covering CBAS on July 1, 2012, with the exception of  
            Gold Coast Health Plan in Ventura County. The remaining  
            managed care plans (the Two-Plan Model, the Geographic Managed  
            Care Plans and the GCHP) all began covering CBAS benefits on  
            October 1, 2012.

          3.Prior legislation.
               a.     SB 1008 (Committee on Budget and Fiscal Review),  




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                 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.

               b.     AB 96 (Committee on Budget) of 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.  

               c.     AB 97 (Committee on Budget), Chapter 3, Statutes of  
                 2011, health budget trailer bill, among other provisions,  
                 eliminated ADHC as a Medi-Cal benefit.

               d.     SB 208 (Steinberg), Chapter 714, Statutes of 2010,  
                 contains the provisions implementing Medicaid  
                 Demonstration. 

          4.Support. AARP, the California Commission on Aging and the  
            National Association of Social Workers write in support of  
            this bill. AARP writes no statute currently authorizes CBAS,  
            and the program operates under authority of a court directive  
            scheduled to expire in  2014, along with an administrative  
            request granted by the federal government. Without legislative  
            action, AARP argues the future of this program is uncertain  
            after the court directive expires and program participants  
            risk losing the vital health and social services provided by  
            CBAS. In addition, proponents argue California risks further  
            costly court battles and more expensive institutional  
            placements for CBAS participants.

          The Jewish Public Affairs Committee of California (JPAC) writes  
            in support of this bill codifying the CBAS settlement  
            agreement. JPAC states it wants to ensure there is statutory  
            language to refer to in the future to protect CBAS clients, as  
            well as this very important and cost saving program.
          
          5.Support if amended.  The California Association for Adult Day  
            Services (CAADS) writes it would support this bill if it were  
            amended, but it believes the prohibition against for-profit  
            entities will negatively impact the future expansion of and  
            access to ADHC services because a majority of non-profits have  
            opened with the support of cash grants from the state that are  




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            no longer available. CAADS request this provision be amended  
            out of the bill because it creates a policy that will  
            artificially and unnecessarily inhibit growth at the very time  
            that CBAS centers are needed to be strengthened in the new  
            paradigm of managed care. The Alzheimer's Association writes  
            it would support this bill if it were amended to reflect the  
            suggestions of CAADS.
          
          6.Amendments. The author is proposing amendments in this bill to  
            correct a date reference to the settlement agreement, and to  
            conform the eligibility for care criteria in this bill to the  
            language in the settlement agreement, which allows a person to  
            be eligible for CBAS who meets a need for a nursing home level  
            of care, but who is residing in a board and care facility or  
            at home.

          7.Policy issues.  
               a.     Non-profit requirement. This bill requires DHCS,  
                 commencing July 1, 2015, to certify and enroll as new  
                 CBAS providers only those providers that are exempt from  
                 taxation under Section 501(c)(3) of the IRC. This  
                 non-profit provision is intended to "grandfather in"  
                 existing for-profits and to apply prospectively to new  
                 ADHC centers. When originally established, ADHC providers  
                                                                                       were limited to non-profits and city or county  
                 governments. In 1994, SB 1492 (Mello), Chapter 1121,  
                 Statutes of 1994, permitted for profit companies to  
                 participate in ADHC. 

               As part of the CBAS implementation, DHCS imposed a new  
                 requirement that CBAS providers be not-for-profit. After  
                 July 1, 2012, to remain or commence as an eligible CBAS  
                 provider in the Medi-Cal program, a CBAS provider must  
                 convert to a non-profit entity unless DHCS determines  
                 that the CBAS provider satisfies one of the following  
                 three exceptions to non-profit status: 

                     i.          The for-profit CBAS provider offers  
                      program specialization that meets the specific  
                      health needs of CBAS-eligible participants not  
                      otherwise met by any other CBAS provider in the  
                      participants' geographic area;

                     ii.         The for-profit CBAS provider's operation  
                      is necessary to preserve an adequate number of CBAS  
                      providers so that CBAS-eligible participants can  




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                      transition seamlessly from ADHC to CBAS without  
                      interruption in services due to wait lists; or,

                     iii.        DHCS determines that a provider needs  
                      additional time beyond July 1, 2012, for the  
                      for-profit provider to complete its conversion to  
                      non-profit status.

                 Additionally, after July 1, 2012, DHCS retains the  
                 discretion to reexamine whether one of the above-listed  
                 exceptions for a for-profit CBAS provider still applies  
                 to a CBAS provider, and in doing so, DHCS may withdraw  
                 such exception for a for-profit CBAS provider as needed.  
                 In a webinar explaining the change, DHCS indicated the  
                 ADHC program was founded on non-profit providers, and  
                 DHCS' action to require non-profit providers was to take  
                 the program back to its original non-profit community  
                 focus. 

                 On December 31, 2012, the California Department of Aging  
                 announced that DHCS decided to postpone until further  
                 notice and no sooner than January 1, 2014 the  
                 implementation of the requirement restricting CBAS  
                 providers to non-profit legal status. As of May 2013,  
                 there are 245 CBAS centers: 62 are non-profit and 183 are  
                 for-profit.
          
               b.     Any willing provider. This bill requires Medi-Cal  
                 managed care plans to contract with any willing (AWP)  
                 CBAS provider in the plan's service area at no less than  
                 the prevailing Medi-Cal fee-for-service rates to provide  
                 CBAS. This requirement is similar to a provision of the  
                 settlement agreement, which requires Medi-Cal managed  
                 care plans to maintain contracts with and enable eligible  
                 CBAS individuals to receive CBAS services through all  
                 DHCS-approved CBAS providers within the plan's service  
                 area.

                 AWP statutes provides greater consumer choice of  
                 providers, but runs counter to a fundamental cornerstone  
                 of managed care whereby health plans selectively contract  
                 with health care providers based on the need to establish  
                 an adequate network, and the quality and price of the  
                 providers. AWP statutes have been found to increase costs  
                 by reducing plans' ability to obtain price discounts and  




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                 conduct effective utilization management. While the  
                 increased cost effect of AWP in the context of Medi-Cal  
                 is not likely to occur because the bill requires plans to  
                 pay the prevailing Medi-Cal fee-for-service rates, the  
                 AWP requirement may prevent plans from directing Medi-Cal  
                 beneficiaries who are receiving CBAS services to centers  
                 that provide higher quality services if an AWP  
                 requirement is imposed.

           SUPPORT AND OPPOSITION  :
          Support:  AARP
                    California Commission on Aging
                    California Primary Care Association
                    County Welfare Directors Association
                    Jewish Public Affairs Committee of California
                         LeadingAge California
                         National Association of Social Workers,  
                    California Chapter

          Oppose:   None received.




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