Amended in Senate August 18, 2016

Amended in Senate August 1, 2016

Amended in Senate July 16, 2015

Amended in Assembly April 21, 2015

California Legislature—2015–16 Regular Session

Assembly Bill No. 1299

Introduced by Assembly Member Ridley-Thomas

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(Coauthor: Assembly Member Cristina Garcia)

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(Coauthors: Senators Anderson, Hertzberg, and Huff)

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February 27, 2015

An act to amend Section 14714 of, and to add Section begin delete 14717.5 end delete begin insert 14717.1 end insert to, the Welfare and Institutions Code, relating to Medi-Cal.

LEGISLATIVE COUNSEL’S DIGEST

AB 1299, as amended, Ridley-Thomas. Medi-Cal: specialty mental health services: foster children.

Existing law provides for the Medi-Cal program, which is administered by the State Department of Health Care Services, under which qualified low-income individuals receive health care services. The Medi-Cal program is, in part, governed and funded by federal Medicaid program provisions. Existing law provides that specialty mental health services and Early and Periodic Screening, Diagnosis, and Treatment (EPSDT) for any individual under 21 years of age are covered under Medi-Cal, consistent with the requirements of federal law. Federal law defines EPSDT mental health services to include screening services, vision services, dental services, hearing services, and other necessary services to correct or ameliorate defects and physical and mental illnesses and conditions discovered by the screening services, whether or not the services are covered under the state plan. Existing law provides that specialty mental health services include EPSDT services provided to eligible Medi-Cal beneficiaries under 21 years of age.

Existing law requires each local mental health plan to establish a procedure to ensure access to outpatient specialty mental health services, as required by the EPSDT program standards, for children in foster care who have been placed outside their county of adjudication. Existing law includes standardized contracts, procedures, documents, and forms, to facilitate the receipt of medically necessary specialty mental health services by a foster child who is placed outside his or her county of original jurisdiction.

This bill would declare the intent of the Legislature to ensure that foster children who are placed outside of their county of original jurisdiction, are able to access mental health services in a timely manner consistent with their individualized strengths and needs and the requirements of EPSDT program standards and requirements. The bill would require the department to issue policy guidance that establishes the conditions for and exceptions to presumptive transfer of responsibility for providing or arranging for mental health services to a foster child from the county of original jurisdiction to the county in which the foster child resides, as prescribed. The bill would define presumptive transfer for these purposes. The bill would authorize any interested party who owes a legal duty to the child involving the child’s health or welfare to seek a waiver of presumptive transfer and would provide that the county probation agency or child welfare services agency with responsibility for the care and placement of the child is responsible for determining whether presumptive transfer is appropriate under specified conditions, including when a determination is made that the transfer of mental health services would disrupt continuity of care or timely access to services, as specified. The bill would require the mental health plan in the host county to assume responsibility for the authorization and provision of mental health services, and payments for services, upon the presumptive transfer. By increasing the responsibilities of county probation agencies or child welfare services agencies with respect to determining whether presumptive transfer is appropriate, the bill would impose as state-mandated local program.

This bill would require the department to seek approval from the United States Department of Health and Human Services, federal Centers for Medicare and Medicaid Services (CMS) prior to implementing these provisions if the department determines that approval is necessary. The bill would authorize the department and the State Department of Social Services to adopt regulations to implement these provisions by July 1, 2019, as specified.

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.

This bill would provide that, if the Commission on State Mandates determines that the bill contains costs mandated by the state, reimbursement for those costs shall be made pursuant to these statutory provisions.

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

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

SECTION 1.  

Section 14714 of the Welfare and Institutions
Code is amended to read:

14714.  

(a) (1) Except as otherwise specified in this chapter,
a contract entered into pursuant to this chapter shall include a
provision that the mental health plan contractor shall bear the
financial risk for the cost of providing medically necessary
specialty mental health services to Medi-Cal beneficiaries.

(2) If the mental health plan is not administered by a county,
the mental health plan shall not transfer the obligation for any
specialty mental health services to Medi-Cal beneficiaries to the
county. The mental health plan may purchase services from the
county. The mental health plan shall establish mutually
agreed-upon protocols with the county that clearly establish
conditions under which beneficiaries may obtain non-Medi-Cal
reimbursable services from the county. Additionally, the plan shall
establish mutually agreed-upon protocols with the county for the
conditions of transfer of beneficiaries who have lost Medi-Cal
eligibility to the county for care under Part 2 (commencing with
Section 5600), Part 3 (commencing with Section 5800), and Part
4 (commencing with Section 5850) of Division 5.

(3) The mental health plan shall be financially responsible for
ensuring access and a minimum required scope of benefits and
services, consistent with state and federal requirements, to
Medi-Cal beneficiaries who are residents of that county regardless
of where the beneficiary resides, except as provided for in Section
begin delete 14717.5. end delete begin insert 14717.1. end insert The department shall require that the same
definition of medical necessity be used, and the minimum scope
of benefits offered by each mental health plan be the same, except
to the extent that prior federal approval is received and is consistent
with state and federal laws.

(b) (1) Any contract entered into pursuant to this chapter may
be renewed if the mental health plan continues to meet the
requirements of this chapter, regulations promulgated pursuant to
this chapter, and the terms and conditions of the contract. Failure
to meet these requirements shall be cause for nonrenewal of the
contract. The department may base the decision to renew on timely
completion of a mutually agreed-upon plan of correction of any
deficiencies, submissions of required information in a timely
manner, or other conditions of the contract.

(2) In the event the contract is not renewed based on the reasons
specified in paragraph (1), the department shall notify the
Department of Finance, the fiscal and policy committees of the
Legislature, and the Controller of the amounts to be sequestered
from the Mental Health Subaccount, the Mental Health Equity
Account, and the Vehicle License Fee Collection Account of the
Local Revenue Fund and the Mental Health Account and the
Behavioral Health Subaccount of the Local Revenue Fund 2011,
and the Controller shall sequester those funds in the Behavioral
Health Subaccount pursuant to Section 30027.10 of the
Government Code. Upon this sequestration, the department shall
use the funds in accordance with the provisions of Section
30027.10 of the Government Code.

(c) (1) The obligations of the mental health plan shall be
changed only by contract or contract amendment.

(2) Notwithstanding paragraph (1), the mental health plan shall
comply with federal and state requirements, including the
applicable sections of the state plan and waiver.

(3) A change may be made during a contract term or at the time
of contract renewal, when there is a change in obligations required
by federal or state law or when required by a change in the
interpretation or implementation of any law or regulation.

(4) To the extent permitted by federal law, either the department
or the mental health plan may request that contract negotiations
be reopened during the course of a contract due to substantial
changes in the cost of covered benefits that result from an
unanticipated event.

(d) The department shall immediately terminate a contract when
the director finds that there is an immediate threat to the health
and safety of Medi-Cal beneficiaries. Termination of the contract
for other reasons shall be subject to reasonable notice of the
department’s intent to take that action and notification to affected
beneficiaries. The plan may request a hearing by the Office of
Administrative Hearings and Appeals.

(e) A mental health plan may terminate its contract in accordance
with the provisions in the contract. The mental health plan shall
provide written notice to the department at least 180 days prior to
the termination or nonrenewal of the contract.

(f) Upon the request of the director, the Director of the
Department of Managed Health Care may exempt a mental health
plan from the Knox-Keene Health Care Service Plan Act of 1975
(Chapter 2.2 (commencing with Section 1340) of Division 2 of
the Health and Safety Code). These exemptions may be subject to
conditions the director deems appropriate. Nothing in this chapter
shall be construed to impair or diminish the authority of the
Director of the Department of Managed Health Care under the
Knox-Keene Health Care Service Plan Act of 1975, nor shall
anything in this chapter be construed to reduce or otherwise limit
the obligation of a mental health plan contractor licensed as a
health care service plan to comply with the requirements of the
Knox-Keene Health Care Service Plan Act of 1975, and the rules
of the Director of the Department of Managed Health Care
promulgated under the Knox-Keene Health Care Service Plan Act
of 1975. The director, in consultation with the Director of the
Department of Managed Health Care, shall analyze the
appropriateness of licensure or application of applicable standards
of the Knox-Keene Health Care Service Plan Act of 1975.

(g) The department shall provide oversight to the mental health
plans to ensure quality, access, cost efficiency, and compliance
with data and reporting requirements. At a minimum, the
department shall, through a method independent of any agency of
the mental health plan contractor, monitor the level and quality of
services provided, expenditures pursuant to the contract, and
conformity with federal and state law.

(h) County employees implementing or administering a mental
health plan act in a discretionary capacity when they determine
whether or not to admit a person for care or to provide any level
of care pursuant to this chapter.

(i) If a county discontinues operations as the mental health plan,
the department shall approve any new mental health plan. The new
mental health plan shall give reasonable consideration to affiliation
with nonprofit community mental health agencies that were under
contract with the county and that meet the mental health plan’s
quality and cost efficiency standards.

(j) Nothing in this chapter shall be construed to modify, alter,
or increase the obligations of counties as otherwise limited and
defined in Chapter 3 (commencing with Section 5700) of Part 2
of Division 5. The county’s maximum obligation for services to
persons not eligible for Medi-Cal shall be no more than the amount
of funds remaining in the mental health subaccount pursuant to
Sections 17600, 17601, 17604, 17605, and 17609 after fulfilling
the Medi-Cal contract obligations.

SEC. 2.  

Section begin delete 14717.5 end delete begin insert 14717.1 end insert is added to the Welfare and
Institutions Code, to read:

begin delete 14717.5. end delete

begin insert 14717.1. end insert   

(a) (1) It is the intent of the Legislature to ensure
that foster children who are placed outside of their county of
original jurisdiction are able to access specialty mental health
services in a timely manner, consistent with their individual
strengths and needs and the requirements of federal Early and
Periodic Screening, Diagnosis, and Treatment (EPSDT) services.

(2) It is the further intent of the Legislature to overcome any
barriers to care that may result when responsibility for providing
or arranging for specialty mental health services to foster children
who are placed outside of their county of original jurisdiction is
retained by the county of original jurisdiction.

(b) In order to facilitate the receipt of medically necessary
specialty mental health services by a foster child who is placed
outside of his or her county of original jurisdiction, the California
Health and Human Services Agency shall coordinate with the
department and the State Department of Social Services to take
all of the following actions on or before July 1, 2017:

(1) The department shall issue policy guidance concerning the
conditions for and exceptions to presumptive transfer, as described
in subdivisions (c) and (d), in consultation with the State
Department of Social Services and with the input of stakeholders
that include the County Welfare Directors Association of
California, the Chief Probation Officers of California, the County
Behavioral Health Directors Association of California, provider
representatives, and family and youth advocates.

(2) Policy guidance concerning the conditions for and exceptions
to presumptive transfer shall ensure that:

(A) The transfer of responsibility improves access to specialty
mental health care services consistent with the mental health needs
of the foster youth.

(B) Presumptive transfer does not disrupt the continuity of care.

(C) Conditions and exceptions are applied consistently statewide
giving due consideration to the varying capabilities of small,
medium, and large counties.

(D) Presumptive transfer can be waived only with an
individualized determination that an exception applies.

(E) A party to the case who disagrees with the presumptive
transfer individualized exception determination made by the county
placing agency pursuant to subdivision (d) is afforded an
opportunity to request judicial review prior to a transfer or
exception being finalized.

(F) There is a procedure for expedited transfer within 48 hours
of placement of the child outside of the county of original
jurisdiction.

(c) “Presumptive transfer,” for the purposes of this section,
means that absent any exceptions as established pursuant to this
section, responsibility for providing or arranging for specialty
mental health services shall promptly transfer from the county of
original jurisdiction to the county in which the foster child resides,
under either of the following conditions:

(1) A foster child is placed in a county other than the county of
original jurisdiction on or after July 1, 2017.

(2) A foster youth who resides in a county other than the county
of original jurisdiction after June 30, 2017, and is not receiving
specialty mental health services consistent with his or her mental
health needs, requests transfer of responsibility. A foster child who
resided in a county other than the county of original jurisdiction
after June 30, 2017, and who continues to reside outside the county
of original jurisdiction after December 31, 2017, shall have
jurisdiction transferred no later than the child’s first regularly
scheduled status review hearing conducted pursuant to Section
366 in the 2018 calendar year unless an exception described under
subdivision (d) applies.

(d) (1) On a case-by-case basis, and when consistent with the
medical rights of children in foster care, presumptive transfer may
be waived and the responsibility for the provision of specialty
mental health services shall remain with the county of original
jurisdiction if any of the exceptions described in paragraph (5)
exist.

(2) A request for waiver in a manner established by the
department may be made by the foster child, the person or agency
that is responsible for making mental health care decisions on
behalf of the foster child, the county probation agency or the child
welfare services agency with responsibility for the care and
placement of the child, or any other interested party who owes a
legal duty to the child involving the child’s health or welfare, as
defined by the department.

(3) The county probation agency or the child welfare services
agency with responsibility for the care and placement of the child,
in consultation with the child and his or her parent, the child and
family team if one exists, and other professionals who serve the
child as appropriate, is responsible for determining whether waiver
of the presumptive transfer is appropriate pursuant to the conditions
and exceptions established under this section. The person who
requested the exception, along with any other parties to the case,
shall receive notice of the county agency’s determination.

(4) The individual who requested the exception or any other
party to the case who disagrees with the determination made by
the county agency pursuant to paragraph (3) may request judicial
review prior to the county’s determination becoming final. The
court may set the matter for hearing and may confirm or deny the
transfer of jurisdiction or application of an exception based on the
best interest of the child.

(5) Presumptive transfer may be waived under any of the
following exceptions:

(A) It is determined that the transfer would disrupt continuity
of care or delay access to services provided to the foster child.

(B) It is determined that the transfer would interfere with family
reunification efforts documented in the individual case plan.

(C) The foster child’s placement in a county other than the
county of original jurisdiction is expected to last less than six
months.

(D) The foster child’s residence is within 30 minutes of travel
time to his or her established specialty mental health care provider
in the county of original jurisdiction.

(6) A waiver processed based on an exception to presumptive
transfer shall be contingent upon the mental health plan in the
county of original jurisdiction demonstrating an existing contract
with a specialty mental health care provider, or the ability to enter
into a contract within 30 days of the waiver decision, and the ability
to deliver timely specialty mental health services directly to the
foster child. That information shall be documented in the child’s
case plan.

(7) A request for waiver, the exceptions claimed as the basis
for the request, a determination whether a waiver is determined to
be appropriate under this section, and any objections to the
determination shall be documented in the foster child’s case plan
pursuant to Section 16501.1.

(e) If the mental health plan in the county of original jurisdiction
has completed an assessment of needed services for the foster
child, the mental health plan in the county in which the foster child
resides shall accept that assessment. The mental health plan in the
county in which the foster child resides may conduct additional
assessments if the foster child’s needs change or an updated
assessment is needed to determine the child’s needs and identify
the needed treatment and services to address those needs.

(f) Upon presumptive transfer, the mental health plan in the
county in which the foster child resides shall assume responsibility
for the authorization and provision of specialty mental health
services and payments for services. The foster child transferred to
the mental health plan in the county in which the foster child
resides shall be considered part of the county of residence caseload
for claiming purposes from the Behavioral Health Subaccount and
the Behavioral Health Services Growth Special Account, both
created pursuant to Section 30025 of the Government Code.

(g) The State Department of Social Services and the State
Department of Health Care Services shall adopt regulations by
July 1, 2019, to implement this section. Notwithstanding the
rulemaking provisions of the Administrative Procedure Act
(Chapter 3.5 (commencing with Section 11340) of Part 1 of
Division 3 of Title 2 of the Government Code), the State
Department of Social Services and the State Department of Health
Care Services may implement and administer the changes made
by this legislation through all-county letters, information notices,
or similar written instructions until regulations are adopted.

(h) If the department determines it is necessary, it shall seek
approval from the United States Department of Health and Human
Services, federal Centers for Medicare and Medicaid Services
(CMS) prior to implementing this section.

(i) If the department makes the determination that it is necessary
to seek CMS approval pursuant to subdivision (h), the department
shall make an official request for approval from CMS no later than
January 1, 2017.

(j) This section shall be implemented only if and to the extent
that federal financial participation under Title XIX of the federal
Social Security Act (42 U.S.C. Sec. 1396, et seq.) is available and
all necessary federal approvals have been obtained.

SEC. 3.  

If the Commission on State Mandates determines that
this act contains costs mandated by the state, reimbursement to
local agencies and school districts for those costs shall be made
pursuant to Part 7 (commencing with Section 17500) of Division
4 of Title 2 of the Government Code.