Amended in Assembly April 27, 2015

Amended in Assembly March 26, 2015

California Legislature—2015–16 Regular Session

Assembly Bill No. 1518

Introduced by Committee on Aging and Long-Term Care (Assembly Members Brown (Chair), Gipson, Levine, and Lopez)

March 10, 2015

An act to amend and renumber Section 14132.99 of the Welfare and Institutions Code, relating to Medi-Cal.

LEGISLATIVE COUNSEL’S DIGEST

AB 1518, as amended, Committee on Aging and Long-Term Care. Medi-Cal: nursing facilities.

Existing law provides for the Medi-Cal program, 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 federal law authorizes the state to obtain waivers for home- and community-based services. Existing law authorizes the department to seek an increase in the scope of these waivers, in order to enable additional nursing facility residents to transition into the community, subject to implementation of these amended waivers upon obtaining federal financial participation, and to the extent it can demonstrate fiscal neutrality within the overall department budget.

This bill would authorize the department to seek additional increases in the scope of the home- and community-based Nursing Facility/Acute Hospital Waiver. The bill would begin delete require, end delete begin insert require the department to, end insert by begin delete July 1, end delete begin insert February 1, end insert 2016, begin insert apply for end insert an additional 5,000 slots beyond those currently authorized for the begin delete waiver to be added . end delete begin insert waiver. end insert The bill would require that the department consider specified factors, consult with stakeholders, calculate the need for additional slots, and seek federal approval to add those slots to the waiver each year beginning January 1, 2016. Prior to submitting the annual request for additional waiver slots and the waiver renewal request, the bill would require the department to notify the appropriate fiscal and policy committees of the Legislature of the number of waiver slots included in the waiver renewal request along with data supporting that number of slots.

The bill would require the department to make an eligibility and level of care determination, and inform the individual about available waiver services, within three business days of receipt of the individual’s application for those patients who are in acute care hospitals and who are pending placement in a nursing facility and for those individuals who are more likely than not to be placed in a hospital or nursing facility within 30 days. The bill would require an individual residing in an institutional setting at a level of care included in the waiver to be determined to qualify for a waiver level of care that is no lower than the level of care he or she receives in the institution in which he or she resides, and would prohibit the department from using more stringent eligibility criteria for a waiver level of care than for the corresponding institutional level of care.

The bill would begin delete require the department, by July 1, 2016, to take all necessary steps so that individuals who are clients of a regional center for individuals with developmental disabilities and who receive private duty nursing through the Early Periodic Screening, Diagnosis, and Treatment Program (EPSDT) seamlessly transition from receipt of private duty in-home nursing provided through EPSDT to medically necessary in-home nursing provided through adult Medi-Cal or a regional center when the individual reaches 21 years of age. end delete begin insert provide that an individual who enrolls in the waiver upon attaining 21 years of age who is no longer eligible to receive services through the Early and Periodic Screening, Diagnosis, and Treatment Program (EPSDT) shall receive the same level of services under the waiver that he or she received through the EPSDT program. end insert

The bill would require the department to adjust the cost limitation category of the waiver to use an aggregate cost limit formula, as specified. The bill would require the department to implement its provisions only if the department has obtained the necessary approvals and receives federal financial participation.

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

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

SECTION 1.  

Section 14132.99 of the Welfare and Institutions
Code, as added by Section 3 of Chapter 551 of the Statutes of
2005, is amended and renumbered to read:

14132.991.  

(a) For the purposes of this section, “facility
residents” means individuals who are currently residing in a nursing
facility and whose care is paid for by Medi-Cal either with or
without a share of cost. The term “facility residents” also includes
individuals who are hospitalized and who are or will be waiting
for transfer to a nursing facility.

(b) By begin delete July 1, end delete begin insert February 1, end insert 2016, begin insert the department shall apply for end insert
an additional 5,000 slots beyond those currently authorized for the
home- and community-based Nursing Facility/Acute Hospital
begin delete Waiver shall be added end delete begin insert Waiver, end insert to ensure that individuals residing
in, or at risk of, out-of-home placements, including nursing
facilities, can be considered for, and, if eligible, receive services
from the waiver without delay.

(c) (1) Each year, the department shall consider the factors
listed in paragraph (2), consult with stakeholders, begin insert including, but
not limited to, individuals who use or would like to use waiver
services, programs with state contracts to divert people from or
help people leave nursing homes, the designated protection and
advocacy organization, independent living centers, area agencies
on aging, staff providing services available under Article 7
(commencing with Section 12300) of Chapter 3, known as the
In-Home Supportive Services program, and managed care plans
providing Medi-Cal long- end insert begin insert term services and support, end insert calculate the
need for additional slots, and seek federal approval to add those
slots to the Nursing Facility/Acute Hospital Waiver.

(2) The factors considered by the department pursuant to
paragraph (1) shall include, but not be limited to, all of the
following:

(A) Any waiting list for Nursing Facility/Acute Hospital Waiver
services, including, but not limited to, waiting lists for a particular
level of care.

begin delete

(B) The needs identified by programs that assist people to leave
nursing homes.

end delete begin delete

(C)

end delete

begin insert (B) end insert  The results of surveys of nursing home residents, including,
but not limited to, the Minimum Data Sets (MDS), which identify
residents who want to leave nursing homes.

(3) Prior to submitting the annual request for additional waiver
slots and the waiver renewal request, the department shall notify
the appropriate fiscal and policy committees of the Legislature of
the number of waiver slots included in the waiver renewal request
along with data supporting that number of slots.

(d)  begin insert (1) end insert begin insert   end insert For those patients who are in acute care hospitals and
who are pending placement in a nursing facility, and for those
individuals who are at imminent risk of placement in a hospital or
nursing facility, the department shall expedite the processing of
waiver applications in order to facilitate remaining in a community
setting and hospital discharges into the community rather than to
nursing facilities. begin delete For end delete

begin insert (2) end insert begin insert   end insert begin insert For end insert purposes of this section, both of the following definitions
apply:

begin delete

(1)

end delete

begin insert (A) end insert  “Imminent risk” means more likely than not to occur within
begin delete 30 days. end delete begin insert 60 days, as determined by a treating professional,
including, but not limited to, a physician, a licensed clinical social
worker, or a nurse. end insert

begin delete

(2)

end delete

begin insert (B) end insert  “Expedite the processing of waiver applications” means that
the department shall make an eligibility and level of care
determination, and inform the individual about available waiver
services, within three business days of receipt of the application.

(e) An individual residing in an institutional setting at a level
of care included in the Nursing Facility/Acute Hospital Waiver
shall be determined to qualify for a waiver level of care that is no
lower than the level of care he or she receives in the institution in
which he or she resides. The department shall not use more
stringent eligibility criteria for a waiver level of care than for the
corresponding institutional level of care.

(f) (1)  begin delete By July 1, 2016, the department shall take all necessary
steps so that individuals who are clients of a regional center for
individuals with developmental disabilities pursuant to the
Lanterman Developmental Disabilities Services Act (Division 4.5
(commencing with Section 4500)) and who receive private duty
nursing through the Early Periodic Screening, Diagnosis, and
Treatment Program (EPSDT), as described in Section 1396d of
Title 42 of United State Code, seamlessly transition from receipt
of private duty in-home nursing provided through EPSDT to
medically necessary in-home nursing provided through adult
Medi-Cal or a regional center when the individual reaches 21 years
of age. end delete begin insert An individual who enrolls in the Nursing Facility/Acute
Hospital Waiver upon attaining 21 years of age who is no longer
eligible to receive services under the Early and Periodic Screening,
Diagnosis, and Treatment (EPSDT) program shall be eligible for
at least the same level of services under the Nursing Facility/Acute
Hospital Waiver that he or she received through the EPSDT
program unless the individual, and his or her authorized
representative, as applicable, agree that the individual’s needs
have decreased and a lower level of service is needed. end insert

begin delete

(2) The individuals described in paragraph (1) shall be eligible
for at least the same level of services received through the EPSDT
program unless the individual, and his or her authorized
representative, as appropriate, agree that the individual’s needs
have decreased and less service is needed.

end delete begin delete

(3)

end delete

begin insert (2) end insert  The department shall maximize federal financial participation
to meet the identified level of need for in-home nursing to ensure
that a consumer does not experience a reduction in in-home nursing
when he or she reaches 21 years of age.

(g) The Nursing Facility/Acute Hospital Waiver shall be
amended to add the following services:

(1) One-time community transition services as defined and
allowed by the federal Centers for Medicare and Medicaid Services,
including, but not limited to, security deposits that are required to
obtain a lease on an apartment or home, essential furnishings, and
moving expenses required to occupy and use a community
domicile, set-up fees, or deposits for utility or service access,
including, but not limited to, telephone, electricity, and heating,
and health and safety assurances, including, but not limited to, pest
eradication, allergen control, or one-time cleaning prior to
occupancy. These costs shall not exceed five thousand dollars
($5,000).

(2) Habilitation services, as defined in Section 1915(c)(5) of
the federal Social Security Act (42 U.S.C. Sec. 1396n(c)(5)), and
in attachment 3-d to the July 25, 2003, State Medicaid Directors
Letter re Olmstead Update No. 3, to mean services designed to
assist individuals in acquiring, retaining, and improving the
self-help, socialization, and adaptive skills necessary to reside
successfully in home- and community-based settings.

(h) By July 1, 2016, the department shall adjust the cost
limitation category of the Nursing Facility/Acute Hospital Waiver
to use an aggregate cost limit formula.

(i) By July 1, 2016, the aggregate cost limit formula described
in subdivision (h) shall be based on 100 percent of the actual
current rates for the corresponding institutional levels of care
specified in the Nursing Facility/Acute Hospital Waiver. Any cost
increase in an institutional level of care shall be matched by an
increase in the cost limitation of the corresponding Nursing
Facility/Acute Hospital Waiver level of care.

(j) (1) The department shall implement this section only to the
extent it can demonstrate fiscal neutrality within the overall
department budget, and federal fiscal neutrality as required under
the terms of the federal waiver, and only if the department has
obtained the necessary approvals and receives federal financial
participation from the federal Centers for Medicare and Medicaid
Services. Contingent upon federal approval of the waiver
expansion, implementation shall commence within six months of
the department receiving authorization for the necessary resources
to provide the services to additional waiver participants.

(2) The department shall implement the amendments made to
this section by the act that added this paragraph only to the extent
it can demonstrate fiscal neutrality within the overall department
budget, and federal fiscal neutrality as required under the terms of
the federal waiver, and only if the department has obtained the
necessary approvals and receives federal financial participation
from the federal Centers for Medicare and Medicaid Services.
Contingent upon federal approval of the waiver expansion,
implementation shall commence within six months of the
department receiving authorization for the necessary resources to
provide the services to additional waiver participants.