Amended in Senate June 25, 2015

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 require the department to, by February 1, 2016, apply for an additional 5,000 begin delete slots end delete begin insert slots, to be added in the 2016- end insert begin insert 17 fiscal year, end insert beyond those currently authorized for the waiver. The bill would begin insert , for each fiscal year after the 2016- end insert begin insert 17 fiscal year, end insert 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 begin delete waiver each year beginning January 1, 2016. end delete begin insert waiver. end insert 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 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.

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 begin delete participation. end delete begin insert participation, and only to the extent that it can demonstrate that its actual total expenditures for services provided under the waiver will not exceed a specified threshold. end insert

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 February 1, 2016, the department shall apply for an
additional 5,000 begin delete slots end delete begin insert slots, to be added in the 2016- end insert begin insert 17 fiscal year, end insert
beyond those currently authorized for the home- and
community-based Nursing Facility/Acute Hospital Waiver, 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)  begin delete Each year, end delete begin insert For each fiscal year after the 2016- end insert begin insert 17 fiscal
year, end insert the department shall begin delete consider end delete begin insert calculate end insert begin insert the need for
additional slots, and seek federal approval to add those slots to
the Nursing Facility/Acute Hospital Waiver, based on a
consideration of end insert the factors listed in paragraph begin delete (2), end delete begin insert (2). In
calculating the need for additional slots, the department shall also end insert
consult with stakeholders, 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, begin delete staff end delete begin insert county staff providing
for the delivery of in-home supportive services authorized under
Section 12301.6, individuals end insert 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-term services and begin delete support, calculate
the need for additional slots, and seek federal approval to add those
slots to the Nursing Facility/Acute Hospital Waiver. end delete begin insert supports. end insert

(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.

(B) 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) (1) 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.

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

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

(B) “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) 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.

(2) 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 begin delete fiscal neutrality within the overall department
budget, end delete begin insert that the department’s actual total expenditures for home,
community-based, and other services under the Nursing
Facility/Acute Hospital Waiver will not, in any year of the waiver
period, exceed 100 percent of the amount that would be incurred
by the Medi-Cal program for these individuals, absent the waiver,
in institutions for which the individuals qualify, end insert 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.