BILL ANALYSIS Ó
SENATE COMMITTEE ON HUMAN SERVICES
Senator McGuire, Chair
2015 - 2016 Regular
Bill No: AB 1299
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|Author: |Ridley-Thomas |
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|Version: |April 21, 2015 |Hearing |July 14, 2015 |
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|Urgency: |No |Fiscal: |Yes |
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|Consultant|Sara Rogers |
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Subject: Medi-Cal: specialty mental health services: foster
children
SUMMARY
This bill establishes Legislative intent to ensure that foster
children placed outside of their county of original jurisdiction
are able to access mental health services in a timely manner and
to overcome barriers to care that exist when the responsibility
for providing services remains with the county of original
jurisdiction. It requires the California Health and Human
Services Agency to coordinate with the Department of Health Care
Services (DHCS) and the California Department of Social Services
(CDSS) to issue policy guidance establishing presumptive
transfer, as defined, of responsibility for providing mental
health services from the county of original jurisdiction to the
foster child's county of residence. Finally, it requires the
Department of Finance to set or adjust the Behavioral Health
subaccount allocations to ensure that counties who pay for
mental health services pursuant to the bill are fully reimbursed
ABSTRACT
Existing law:
1)Establishes the criteria by which a child who has suffered, or
is at risk of suffering, significant abuse or harm shall be
within the jurisdiction of the juvenile court which may
adjudge that person to be a dependent child of the court. (WIC
300)
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2)Requires that a child who has been removed from the physical
custody of the parent or guardian, unless placed with
relatives, to be placed in the county of residence of the
parent or guardian in order to facilitate reunification of the
family. Further provides that, in the event that there are no
appropriate placements available, a placement may be made in
another county, preferably a county adjacent to the parent's
or guardian's residence. (WIC 362.2 (g))
3)Provides that the sending county shall be responsible for
providing direct supervision and services or arranging for the
provision of supervision and services by the receiving county
based on a developed plan or formal agreement, if applicable,
specifying the activities to be provided. (WIC 362.2 (g)(5)
and (6); MPP 31-505)
4)Establishes California's Medicaid program, Medi-Cal, though
which eligible low-income individuals receive health care
services, including foster youth, certain recipients of the
Adoption Assistance Program, and Kin-Gap. (WIC 14000 et seq.;
42 USC 1396, et seq.)
5)Pursuant to federal law, provides that children with Title
IV-E Adoption Assistance, Foster Care or Guardianship care are
defined as "mandatory categorically needy" when determining
Medicaid eligibility. (42 CFR 435.145)
6)Establishes the federal Early and Periodic Screening,
Diagnosis and Treatment (EPSDT) program to provide
comprehensive and preventive health services including
specialty mental health services to Medi-Cal beneficiaries
under the age of 21 who have full-scope Medi-Cal eligibility.
(42 USC Section 1396d)
7)Requires county mental health departments to provide children
served by county social services and probation departments
mental health screening, assessment, participation in
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multidisciplinary placement teams and specialty mental health
treatment services for children placed out of home in group
care, for those children who meet the definition of medical
necessity, to the extent resources are available. Requires
first priority be given to children currently receiving
psychoactive medication. (WIC 5867.5)
8)Requires each local mental health plan to establish a
procedure to ensure access to outpatient specialty mental
health services, as required by EPSDT program standards, for
any child in foster care who has been placed outside his or
her county of adjudication. (WIC 14716)
9)Establishes the behavioral health subaccount within the
support services account of the Local Revenue Fund 2011.
Requires the state Controller to distribute funds on a monthly
or quarterly basis pursuant to a schedule provided by the
Department of Finance created in consultation with appropriate
state agencies and the California State Association of
Counties. Provides that funds distributed to counties from the
behavioral health subaccount can only be used to provide
Medi-Cal Specialty Mental Health Services, including the EPSDT
benefit, and specified substance use disorder programs. (GOV
30025 and 30029.6 pursuant to SB 1020 (Chapter 40, Statutes of
2012))
This bill:
1)Establishes codified Legislative intent to ensure that foster
children who are placed in their county of original
jurisdiction are able to access mental health services, as
specified. Further states the intent of the Legislature to
overcome the barriers to mental health care existing in the
current system for foster children who are placed outside
their county of original jurisdiction.
2)Requires the California Health and Human Services Agency to
coordinate with DHCS and CDSS to facilitate the receipt of
medically necessary specialty mental health services by foster
youth placed outside the county of original jurisdiction.
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3)Requires DHCS to do the following on or before July 1, 2016:
a. Issue policy guidance that establishes the
presumptive transfer of responsibility for providing or
arranging mental health services to foster youth,
consistent with EPSDT standards and requirements, from
the county of original jurisdiction to the foster youth's
county of residence;
b. Establish conditions and exceptions to presumptive
transfer in consultation with CDSS and with input from
stakeholders, as specified.
c. Establish procedures for implementing a presumptive
transfer that are consistent with the purpose and intent
of the provisions of this bill and EPSDT standards and
requirements. Requires DHCS to include a procedure for
expedited transfer within 48 hours.
4)Defines "presumptive transfer" as responsibility for providing
or arranging for mental health services being immediately
transferred from the county of original jurisdiction to the
county of residence, when the following occur, absent any
specified conditions or exceptions:
a. A foster child is placed in a county other
than the county of original jurisdiction; and;
b. The transfer of responsibility is requested by
the county child welfare services agency, county
probation department, foster caregiver, or any other
person authorized to make medical decisions on behalf
of the foster child.
5)Requires Department of Finance by May 1, 2016, to set or
adjust its allocation schedule of the behavioral health
subaccount so that counties that have paid, or will pay, for
specialty mental health services for foster youth placed
out-of-county are fully reimbursed during the fiscal year in
which the services were provided.
6)Requires DHCS, if it determines it is necessary, to seek
approval under the state's Section 1915 (b) Medicaid waiver
from the Centers for Medicare and Medicaid Services (CMS)
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prior to implementing the provisions in this bill. Prohibits
DHCS from implementing any provision that CMS determines is
not permitted under the state's 1915 (b) waiver. (The state's
specialty mental health services are operated under a section
of the 1915 (b) waiver.)
FISCAL IMPACT
According to an Assembly Appropriations Committee analysis, this
bill is expected to incur annual increased costs in the medical
EPSDT program in the low millions (approx 50% GF), possibly more
to the extent this bill increases access to mental health
services for youth who face treatment and service barriers when
placed out-of-county.
BACKGROUND AND DISCUSSION
Purpose of the bill:
According to the author, the disparity in access to mental
health services between in-county and out-of-county children
exists despite both having the same entitlement to mental health
services under federal and state law. The author states that
county-based mental health plans face substantial administrative
barriers when services must be provided to children placed
out-of-county. Additionally, the author states that foster
children are three to six times more likely to experience
emotional, behavioral, and developmental problems than
non-foster children. When these mental health needs go unmet,
placement instability, disruptions in permanency plans, barriers
to educational attainment, and other consequences can result.
According to the author, "out-of-county" foster youth may be at
greater risk because of lengthy delays or denials in accessing
mental health services that can result from the way the system
of care provision currently operates.
Background:
California is home to nearly 67,000 child welfare and probation
foster children who have been removed from their homes as a
result of traumatic life events usually involving severe abuse
and neglect. California's child welfare system, in assuming
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responsibility as the acting "parent" for dependent children,
seeks to provide a continuum of placement settings, services and
supports for children and their biological and foster families.
An important component of these services and supports are mental
health services provided under the direction of county-operated
mental health plans which provide specialty Medi-Cal mental
health services to children and adults.
Long-standing divisions and competing priorities between local
child welfare, mental health, and education systems have led to
insurmountable barriers to effectively serving many of these
children within individual counties. Such barriers are further
complicated when dependent children move out of their county of
jurisdiction, the county with legal and financial responsibility
to provide child welfare and mental health services, to a new
county that often lacks mechanisms enabling the child to access
needed services in the new county.
California Child Welfare System
California has a complex child welfare system incorporating
federal, state and local funds expended for the broad purpose of
child welfare, including child abuse prevention and response.
The federal Administration of Children and Families administers
numerous federal grants intended to assist states with child
abuse prevention and response and to support the foster care
system which provides board and care payments for eligible
dependent children as well as a variety of "child welfare
services" intended to support the child and family in accordance
with the child's case plan. Within the statutorily established
parameters for each grant, states have substantial flexibility
in how to apportion funds but are accountable to significant
federal oversight of program administration.
CDSS supervises the 58 county-administered Child Welfare
Services systems that investigate approximately 32,000 reports
of abuse and neglect of children annually. According to CDSS, as
of April of 2015, nearly one in three foster children live in
Los Angeles County. Following a court order to remove a child
from parental custody, existing law requires the court to order
the care, custody, control and conduct of the child to be under
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the supervision of the social worker.<1> The social worker from
the county of jurisdiction is responsible to visit the child at
least monthly, to assess the child for needed services and
supports and to establish a case plan that documents the
services the child needs and receives.
Out-of-county placements
When children move across county lines, the county of
jurisdiction retains legal responsibility for these child
welfare-related activities. However, a sending county may
arrange for the receiving county to assume the child welfare
and/or mental health responsibilities through a formal
agreement. As of January 2015, approximately 20 percent of
foster youth were placed out-of-county (13,440 children) with
Los Angeles County having the largest number (3,580 children) in
out-of-county placement, while hosting 860 children from other
counties.<2> Children may be placed out-of-county for a variety
of reasons - to be placed with a relative, because the only
appropriate and available foster home is across county lines, or
because a child requires placement in a residential group home.
Among children placed in group homes, 33 percent are placed out
of county while 21 percent of children placed in Foster Family
Agencies (FFAs) and 22 percent of children placed with
relatives.<3> There is wide variation across counties in the
frequency and patterns of children being placed out of county
and in the number of children a county "hosts."
Existing law requires mental health plans to establish a
procedure to ensure access to outpatient specialty mental health
services for any child in foster care who has been placed
outside the county of jurisdiction. However, children's mental
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<1> WIC 361.2
<2> CWS/CMS 2015 Quarter 1 Extract. January 1, 2015 Children in
Child Welfare Supervised Foster Care. (Approximations excluding
out of state placements and missing youth, including probation
youth)
<3> Access to Mental Health Services for Foster Children Placed
Out of County. National Center for Youth Law. January 2013.
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health advocates state that such care is often difficult to
access. As a result, the county of jurisdiction frequently lacks
relationships with a receiving county or the direct contracts
with providers to enable access to needed care.
Mental Health Services for Foster Youth
A principal point of access for mental health services for
foster youth is though specialty Medi-Cal mental health
services, through the EPSDT program, by county-operated mental
health plans amounting to at least $1.4 billion (FY2012-13).<4>
Mental health plans may provide services directly, or by
contracting with local providers including group homes, FFAs,
clinics and community providers.
Foster youth, like all children enrolled in Medi-Cal, are
eligible for the EPSDT benefit based on their assessed medical
need. This uncapped entitlement includes periodic screenings to
determine a child's medical needs and treatment services based
on identified mental health needs. EPSDT mental health services
ideally provide Medi-Cal enrolled children access to a continuum
of mental health services including:
Mental health assessment;
Crisis Intervention/Stabilization;
Day Rehabilitation/Day Treatment Intensive;
Intensive Care Coordination;
Medication support services;
Targeted case management;
Therapeutic behavioral services.
The intent of the EPSDT program is to provide children with a
benefit at an exceptionally high standard of care. According to
the U.S. Department of Health and Human Services:
"While there is no federal definition of preventive medical
necessity, federal amount, duration and scope rules require
that coverage limits must be sufficient to ensure that the
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<4> A Complex Case: Public Mental Health Delivery and Financing
in California. California Health Care Foundation. July 2013.
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purpose of a benefit can be reasonably achieved. Since the
purpose of EPSDT is to prevent the onset of worsening of
disability and illness and children, the standard of
coverage is necessarily broad. the standard of medical
necessity used by a state must be one that ensures a
sufficient level of coverage to not merely treat an
already-existing illness or injury but also, to prevent the
development or worsening of conditions, illnesses, and
disabilities."<5>
In many counties, foster youth may also access mental health
benefits through a managed care plan, which may screen for
mental health needs and refer a foster youth to a provider
directly, or to a county mental health plan where the child
receives "specialty mental health services."
Although EPSDT specialty mental health services are officially
uncapped, they are apportioned largely according to an
allocation schedule based on a mixture of 1991 and 2011
realignment formulas structured as a "rolling base" that grows
each year that growth funds are available. If counties overspend
their allocation, the county may seek reimbursement, however the
process for this is lengthy and depends on the availability of
growth monies. As a result of these complex historical financial
arrangements, there is wide variation in the average payment per
client, with some counties spending as little as $1,500 while
others spend more than $8,000. Although some spending disparity
may be the result of cost-of-living differences and population
characteristics, mental health advocates argue that this
spending disparity reflects disparities in access to services
and standards of care.
Stakeholders describe the limited availability and scope of
county mental health services for children across counties
despite repeated assurances from the DHCS and county mental
health departments that services are available to all children
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<5> http://mchb.hrsa.gov/epsdt/mednecessity.html
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who meet very broad medical necessity criteria under EPSDT.<6>
Foster youth, caregivers, community service providers and
advocates report that when a foster youth has been assessed as
being in need of mental health services, it often is not until
the youth is exhibiting more acute symptoms that the child
accesses services -- despite the intended "early" nature of
EPSDT.
Performance Outcome System
DHCS is engaged in the development of a Performance Outcome
System (POS)<7> intended to establish outcome and performance
measures for EPSDT services. According to DHCS, the POS will be
"used to evaluate the domains of access, engagement, service
appropriateness to need, service effectiveness, linkages, cost
effectiveness and satisfaction." Additionally, the department
states that three reports will be provided regarding statewide
aggregate data, county groups, and county-specific data and that
these reports will be updated every six months. The current
report provides data for all medically eligible youth, although
it is anticipated that foster-care-specific reports are
forthcoming.
Related legislation:
SB 785 (Steinberg, Chapter 469, Statutes of 2007) established a
form of presumptive transfer by requiring a host county provide
specialty mental health services for foster youth placed out of
county who move into permanency, largely through kinship
guardianship and adoption.
COMMENTS
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<6>
http://www.kidsdata.org/topic/64/special-needs-referrals-difficul
ty/table#fmt=323&loc=1774,2&tf=74&ch=136,135
<7> Pursuant to SB 1009 (Committee on Budget, Chapter 34,
Statutes of 2012) and AB 82 (Committee on Budget, Chapter 23,
Statutes of 2013). WIC 14707.5.
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According to children's mental health advocates, the model of
presumptive transfer established under SB 785, which applied to
adoptive and guardianship youth, has successfully enabled those
youth to better access services. This bill proposes to expand
presumptive transfer to all foster youth living outside their
original county of jurisdiction, while providing exceptions to
accommodate instances in which a foster youth may be better
served by the original county.
The author has solicited and received substantial feedback from
numerous stakeholders representing counties, mental health
providers and children's advocacy organizations, and is
proposing the committee amendments in attached mock-up. Staff
notes that the author and sponsors intend to continue working
with stakeholders, including county representatives, to resolve
several remaining concerns.
PRIOR VOTES
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|Assembly Floor: |80 - |
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|Assembly Appropriations Committee: |17 - |
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|Assembly Human Services Committee: |7 - |
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POSITIONS
Support:
California Alliance/Steinberg Institute/Women's Foundation
of California/Women's Policy Institute (Co-Sponsor)
California Alliance of Child and Family Services
(Co-Sponsor)
Accessing Health Services for California's Children in
Foster Care Taskforce
Alliance for Children's Rights
Alternative Family Services
Aspiranet
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Assessing Health Services for California's Children in
Foster Care Task Force
Aviva Family and Children's Services
Bayfront Youth & Family Services
California Council of Community Mental Health Agencies
California State PTA
California Youth Connection
California Mental Health Advocates for Children and Youth
Casa Pacifica Centers for Children and Families
Child and Family Policy Institute of California
Children Now
Crittenton Services for Children and Families
Community Clinic Association of Los Angeles County
David & Margaret Youth and Family Services
Ettie Lee Youth & Family Services
Faith Advisory Council, Alameda County
Families Now
Family & Youth Roundtable
Family Care Network, Inc.
Fred Finch Youth Center
Hathaway Sycamores
Health Access California
Hillsides
Humboldt County Transition Age Youth Collaboration
Integral Community Solutions Institute
John Burton Foundation for Children Without Homes
Junior Blind of America
Lilliput Children's Services
Maryvale
Mendocino County Health and Human Services Agency
National Association of Social Workers, CA Chapter
North Star Family Center
OPTIMIST Youth Homes and Family Services
San Diego Center for Children
Seneca Family of Agencies
Sierra Forever Families
Special Education Local Plan Area
Stanford Youth Solutions
The Village Family Services
TLC Child and Family Services
Trinity Youth Services
United Advocates for Children and Families
Unity Care Group, Inc.
United Parents
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Victor Treatment Centers
West Coast Children's Clinic
Young Minds Advocacy Project
Youth Homes Inc.
Oppose:
None received.
Amendments Mock-up for 2015-2016 AB-1299 (Ridley-Thomas (A))
*********Amendments are in BOLD*********
Mock-up based on Version Number 98 - Amended Assembly 4/21/15
The people of the State of California do enact as follows:
SECTION 1. Article 6 (commencing with Section 14695.1) is added
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to Chapter 8.8 of Part 3 of Division 9 of the Welfare and
Institutions Code, to read:
Article 6. Specialty Mental Health Services for Foster
Children
14695.1. (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 mental health services
in a timely manner, consistent with their individualized
strengths and needs and the requirements of Early Periodic
Screening Diagnosis and Treatment (EPSDT) program standards and
requirements.
(2) It is the further intent of the Legislature to overcome the
barriers to care that exist under existing law, which place
responsibility for providing or arranging for mental health
services to foster children who are placed outside of their
county of original jurisdiction, on those same counties.
(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:
(1) On or before July 1, 2016, all of the following shall occur:
(A) The department shall issue policy guidance, pursuant to
Section 14716, that establishes the presumptive transfer of
responsibility for providing or arranging for mental health
services to foster youth, consistent with the requirements of
EPSDT program standards and requirements, from the county of
original jurisdiction to the foster child's county of
residence . , and exceptions to presumptive transfer as defined in
(d).
(B) The department shall establish the policy guidance
conditions and exceptions to presumptive transfer and exceptions
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 County
Behavioral Health Directors Association of California, provider
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representatives, and family and youth advocates. The conditions
and exceptions to presumptive transfer are intended to ensure
that the transfer of responsibility improves access to mental
health care services and does not impede the continuity of
existing care.
(C) The department shall establish the procedures for
implementing presumptive transfer that are consistent with the
purposes and intent of this section and Early Periodic Screening
Diagnosis and Treatment program standards and requirements, and
shall include a procedure for expedited transfer within 48
hours.
(c) "Presumptive transfer" for the purposes of this section,
means that absent any conditions or exceptions as established
pursuant to this article, responsibility for providing or
arranging for mental health services shall immediately transfer
from the county of original jurisdiction to the county of
residence, under the following conditions: when all of the
following conditions occur:
(1) A foster child is placed in a county other than the county
of original jurisdiction ; or
(2) A foster child who resides in a county other than the county
of jurisdiction is not receiving mental health services
consistent with his or her treatment plan and the child's
caregiver with responsibility for healthcare decisions, in
consultation with the county probation or child welfare agency
with responsibility for the care and placement of the child, or
the Child and Family Team if one exists, requests transfer of
responsibility under this section.
(2) The transfer of responsibility is requested by the county
child welfare services agency, county probation department,
foster caregiver, or any other person authorized to make medical
decisions on behalf of the foster child.
(d) Consistent with the conditions herein and exceptions to
presumptive transfer established by the department pursuant to
(d) (1), the person or agency responsible for healthcare
decisions, in consultation with the child and family team, if
one exists, may waive the presumptive transfer, and the
responsibility for the provision of mental health services shall
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remain with the county of original jurisdiction.
(1) On a case by case basis, the presumptive transfer specified
in (c) may be waived and the responsibility for provision of
specialty mental health services may remain with the mental
health plan in the county of original jurisdiction when any of
the following conditions are met. Such exceptions shall be
documented in the child's case plan pursuant to Section 16501.1.
Exceptions may include but are not limited to, the following:
(A) It is determined that the transfer of services would
disrupt continuity of care or timely access to services
provided to the child, as defined in paragraph (2).
(B) It is determined that the transfer would interfere with
family reunification efforts.
(C) The child's placement out of county is expected to last
less than 9 months.
(2) Exceptions to the presumptive transfer shall be contingent
upon the county mental health plan in the county with dependency
or delinquency jurisdiction demonstrating an existing contract
with a foster care provider, or the ability to enter into a
contract within 30 days of the exception decision, and the
ability to deliver timely services directly to the foster child.
This shall be documented in the child's case plan.
(e) If the county of jurisdiction mental health plan has
completed an assessment of needed services for the foster child,
the host county shall accept the assessment. The host county may
conduct additional assessments if the child's needs change.
(f) Upon presumptive transfer, the mental health plan in the
county of residence shall assume liability for the authorization
and provision of services, and payments for services.
(g) The department, in consultation with counties and through
any administrative means within existing authority, will amend
its contract with county mental health plans no later than July
1, 2016 to ensure a host county is reimbursed for services
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provided pursuant to this section within the fiscal year.
14695.2. By May 1, 2016, the Department of Finance shall set or
adjust its allocation schedule of the Behavioral Health
Subaccount pursuant to the requirements of Senate Bill 1020
(Chapter 40, Statutes of 2012), in order that counties that have
paid, or will pay, for specialty mental health services for
foster children placed out of county pursuant to this article,
are fully reimbursed during the fiscal year in which the
services are provided.
14695.3. (a) If the department determines it is necessary, it
shall seek approval under the state's Section 1915(b) Medicaid
waiver from the United States Department of Health and Human
Services, Centers for Medicare and Medicaid Services (CMS) prior
to implementing this article.
(b) If the department makes the determination that it is
necessary to seek CMS approval pursuant to subdivision (a), the
department shall make an official request for approval from CMS
no later than July 1, 2016, and shall do everything within its
power necessary to secure an expeditious approval from CMS.
(c) The department shall not be required to implement any
provision of this article that CMS determines is not permitted
under the state's waiver.
Add New Section
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
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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 and consistent with Section 14695.1. 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.
-- END --