BILL ANALYSIS                                                                                                                                                                                                    Ó



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

          BILL NO:                    SB 492    
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          |AUTHOR:        |Liu                                            |
          |---------------+-----------------------------------------------|
          |VERSION:       |April 20, 2015                                 |
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          |HEARING DATE:  |April 29, 2015 |               |               |
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          |CONSULTANT:    |Scott Bain                                     |
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           SUBJECT  :  Coordinated Care Initiative: Consumer Bill of Rights.

           SUMMARY  : Enacts the "Coordinated Care Initiative Consumer Bill of Rights"  
          which requires a consumer under the Coordinated Care Initiative  
          to specified rights, including the right to self-direction,  
          choice, coordination, integration of services, flexibility,  
          quality, cultural competence, accessibility, personal assistants  
          and caregivers, independence and grievance and appeals, and  
          timeliness. Requires this bill to be implemented only to the  
          extent permitted by applicable federal Medicare law, Medi-Cal law  
          and the "Memorandum of Understanding between the Centers for  
          Medicare and Medicaid Services and the State of California.

          Existing law:
          1.Establishes, under federal law, the Medicare program, which is  
            a public health insurance program for persons 65 years of age  
            and older and specified persons with disabilities who are under  
            the age of 65.



          2.Establishes the Medi-Cal program, administered by the  
            Department of Health Care Services (DHCS), under which  
            qualified low-income individuals receive health care services,  
            including home and community-based services (HCBS). 



          3.Requires DHCS to seek federal approval to establish the  
            demonstration project under a Medicare or a Medicaid  
            demonstration project or waiver. Authorizes DHCS under a  
            Medicare demonstration, to contract with the federal Centers  
            for Medicare and Medicaid Services (CMS) and demonstration  







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            sites to operate the Medicare and Medicaid benefits in a  
            demonstration project that is overseen by the state as a  
            delegated Medicare benefit administrator, and to enter into  
            financing arrangements with CMS to share in any Medicare  
            program savings generated by the demonstration project.


          4.Requires DHCS, after federal approval is obtained, to establish  
            the demonstration project that enables dual eligible  
            beneficiaries to receive a continuum of services that maximizes  
            access to, and coordination of, benefits between the Medi-Cal  
            and Medicare programs and access to the continuum of long-term  
            services and supports and behavioral health services, including  
            mental health and substance use disorder treatment services.  
            The purpose of this demonstration project is to integrate  
            services authorized under Medi-Cal and Medicare.


          5.Requires demonstration sites to be established in up to eight  
            counties, and to include at least one county that provides  
            Medi-Cal services via the two-plan model of Medi-Cal managed  
            care.


          6.Requires DHCS to enroll dual eligible beneficiaries into a  
            demonstration site unless the beneficiary makes an affirmative  
            choice to opt out of enrollment, with specified exceptions.






          7.Requires DHCS to require dual eligibles to be assigned as  
            mandatory enrollees into new or existing Medi-Cal managed care  
            health plans for their Medi-Cal benefits in Coordinated Care  
            Initiative (CCI) counties. CCI counties are the Counties of  
            Alameda, Los Angeles, Orange, Riverside, San Bernardino, San  
            Diego, San Mateo, and Santa Clara. Allows individuals to opt  
            out of Medi-Cal managed care for the Medicare portion of their  
            benefits.


          8.Requires all Medi-Cal long-term services and supports (LTSS) to  
            be services that are covered under Medi-Cal managed care health  








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            plan contracts and to be available only through managed care  
            health plans to beneficiaries residing in CCI counties, except  
            for specified exemptions.



          This bill:
          1.Requires a consumer under the CCI to have all of the following  
            rights:

                  a.        The right to self-direction. Requires the  
                    individual to have the option to coordinate his or her  
                    care and services. Urges a statutory option be made  
                    available to allow for a surrogate or informal  
                    caregiver chosen by the individual to coordinate care  
                    if the individual is unable to do so due to cognitive  
                    impairment;
                  b.        The right to choice. Plan networks should  
                    ensure that individuals have access to, and choice of,  
                    a range of providers and settings across the continuum  
                    of care, including health care services, behavioral  
                    health services, and long-term services and supports;
                  c.        The right to coordination. Requires that an  
                    individual have access to care coordination, in  
                    accordance with his or her needs and preferences;
                  d.        The right to integration of services. Requires  
                    services to be delivered to the individual in an  
                    integrated manner, regardless of the source of payment;
                  e.        The right to flexibility. Requires services  
                    within a plan's contracted services to meet the  
                    individual's changing needs and incorporate new modes  
                    of service and supports;
                  f.        The right to quality. Requires all services and  
                    supports to be of high quality and to be  
                    person-centered. Urges statutory standards be  
                    established to provide a mechanism for enforcement;
                  g.        The right to cultural competence. Individuals  
                    shall have access to threshold language services. Urges  
                    services be appropriate and responsive to the needs of  
                    all populations;
                  h.        The right to accessibility. Requires services  
                    and information to be easy to access. Requires, in  
                    accordance with the federal Americans with Disabilities  
                    Act, services to be delivered in a manner that is  
                    physically, cognitively, and programmatically  








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                    accessible;
                  i.        The right to personal assistants and  
                    caregivers. Requires the system of care to support the  
                    role of quality paid and unpaid caregivers, including  
                    family caregivers, and shall recognize the importance  
                    of workforce development, caregiver needs assessment,  
                    and the availability of training;
                  j.        The right to independence. Requires services  
                    across the continuum to support maximum independence,  
                    full social integration, and quality of life;


                  aa.       The right to grievances and appeals. Requires  
                    participants to have access to an independent grievance  
                    and appeals process. Requires access and resolution to  
                    be prompt, without disruption in service delivery; and,
                  bb.       The right to timeliness. Requires all services  
                    and supports to be delivered in a timely manner, in  
                    order to ensure the individual's optimal health and  
                    functioning.

          2.Requires DHCS to post the CCI Consumer Bill of Rights on its  
            Internet Web site, and to also provide copies to providers and  
            the public upon request. Requires DHCS to make the bill of  
            rights available to the public in prevalent languages.

          3.Requires this bill to be implemented only to the extent  
            permitted by all of the following:

                  a.        Applicable federal Medicare law;
                  b.        Applicable Medi-Cal law; and,
                  c.        The Memorandum of understanding (MOU) between  
                    CMS and the State of California Regarding A  
                    Federal-State Partnership to Test a Capitated Financial  
                    Alignment Model for Medicare-Medicaid Enrollees -  
                    California Demonstration to Integrate Care for Dual  
                    Eligible Beneficiaries."

          4.Makes legislative findings and declarations that:

                  a.        The CCI is an innovative health care service  
                    delivery model for Californians who are eligible for  
                    services under both the Medi-Cal and Medicare programs;

                  b.        Individuals eligible for services under the CCI  








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                    represent a diverse group of older adults and persons  
                    with disabilities, and include some of the most  
                    vulnerable members of our population;

                  c.        Incorporation of services from two programs  
                    requires a variety of changes in federal and state law,  
                    and complex contractual agreements between the state  
                    and CMS, and between health plans and the various  
                    administering state agencies; and,

                  d.        A key component of the CCI is the inclusion of  
                    comprehensive beneficiary protections, to ensure that  
                    eligible individuals receive appropriate, safe, and  
                    high-quality care. However, these protections are  
                    provided for throughout the various statutes and  
                    contractual documents that govern the establishment and  
                    operation of the CCI.

          5.States legislative intent in enacting this bill:

                  a.        To recognize the diversity of individuals  
                    receiving services under the CCI, and encourage  
                    implementation of an individualized, person-centered  
                    service delivery model. 
                  b.        The CCI Bill of Rights is intended to empower  
                    beneficiaries to effectively participate in decisions  
                    affecting their health care, by consolidating and  
                    clarifying the protections afforded to them under the  
                    CCI.

           FISCAL  
          EFFECT  :  This bill has not been analyzed by a fiscal committee.



           COMMENTS  :
          1.Author's statement.  According to the author, fragmentation in  
            access to and delivery of CCI services has generated great  
            confusion among consumers both with respect to enrollment and  
            their rights as qualifying individuals in the program. This  
            bill codifies the rights of CCI individuals. By requiring the  
            Bill of Rights to be posted on the DHCS website and requiring  
            it to be disseminated in multiple languages, the bill aims to  
            increase consumer awareness while also recognizing the ethnic  
            and cultural diversity of the CCI population and promoting  








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            cultural and linguistic competency in delivering services. 

          2.CCI. The CCI is a program intended to integrate and coordinate  
            the delivery of health benefits, including behavioral health  
            benefits and LTSS to dual eligibles and SPDs living in seven  
            California counties: Los Angeles, Orange, Riverside, San  
            Bernardino, San Diego, San Mateo and Santa Clara (state law  
            allows for CCI implementation in eight counties, but CCI will  
            not be implemented in Alameda County). Goals for the CCI  
            include coordinating Medi-Cal benefits and Medicare benefits,  
            across health care settings and improving continuity of acute  
            care, long-term care, and home- and community-based services,  
            coordinating access to acute and long-term care services for  
            dual eligibles, maximizing the ability of dual eligibles to  
            remain in their homes and communities with appropriate services  
            and supports in lieu of institutional care, and increasing the  
            availability of and access to home- and community-based  
            alternatives. The three major components of the CCI are as  
            follows:

             a.   Cal MediConnect Program: A three-year demonstration  
               project designed to coordinate medical, behavioral health,  
               long-term institutional, and home and community-based  
               services (HCBS) services for dual eligibles by combining  
               Medicare and Medi-Cal benefits into one integrated health  
               plan;



             b.   Mandatory enrollment of dual eligibles and Medi-Cal-only  
               seniors and persons with disabilities into Medi-Cal managed  
               care; and,



             c.   Managed Long-Term Supports and Services (MLTSS):  
               Integration of nursing facility care, In-Home Supportive  
               Services, Community-Based Adult Services, and Multipurpose  
               Senior Services Program as managed care benefits. 



          1.Select Committee on Aging and Long Term Care Hearing. In August  
            2014, the Select Committee on Aging and Long Term Care held an  
            informational hearing entitled "California's Service Delivery  








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            System for Older Adults: Envisioning the Ideal." At the  
            hearing, one of the presenters from the SCAN Foundation  
            presented "California in Comparison to Other States: A Look at  
            the LTSS Scorecard" which was a framework for assessing LTSS  
            System Performance among the 50 states and the District of  
            Columbia. One of the five recommendations in that presentation  
            was that California establish a "Dual Eligible Bill of Rights"  
            that outlines in statute the rights of dual eligible  
            individuals including access to an array of services in an  
            integrated setting, consumer choice, and empowerment. These  
            rights would establish the foundation of system change efforts,  
            establish accountability for the health plans, and communicate  
            what people can expect from coordinated services that are  
            grounded in meeting the needs, desires, and preferences of  
            consumers. 

          2.Related legislation. AB 461 (Mullin), would authorize a  
            beneficiary receiving services through a regional center who  
            resides in the County of San Mateo to voluntarily enroll in the  
            CCI demonstration project, upon receipt of all legal  
            notifications. AB 461 passed out of the Assembly Health  
            Committee on April, 2015 on a vote.
            
          3.Prior legislation.
             a.   SB 857 (Committee on Budget and Fiscal Review), Chapter  
               31, Statutes of 2014, institutes various requirements  
               regarding contracts and enrollment limitations on D-SNP  
               plans in the context of the CCI.

             b.   SB 1008 (Committee on Budget and Fiscal Review), Chapter  
               33, Statutes of 2012, establishes the main components of the  
               CCI, including the provisions for the Cal MediConnect  
               Program, mandatory Medi-Cal managed care for SPDs, and  
               MLTSS.

             c.   SB 1036 (Committee on Budget and Fiscal Review), Chapter  
               45, Statutes of 2012, authorizes other components of the  
               CCI, includes provisions that require the development and  
               pilot implementation of a universal assessment tool as well  
               as data-sharing agreements between managed care plans and  
               HCBS administrators.

             d.   SB 208 (Steinberg), Chapter 714, Statutes of 2010,  
               authorizes a pilot project in up to four counties, to  
               integrate the full range of Medicare and Medi-Cal services,  








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               including LTSS and behavioral health services for dual  
               eligible individuals.
            
          4.Support. The Government Action and Communications Institute  
            (GACI) writes in support that the rules for the CCI are found  
            in federal law, state law, a memorandum of understanding  
            between the federal and state governments, and a three-party  
            contract among CMS, DHCS, and each participating health plans.  
            All of these documents are binding, and each provides  
            protections to consumers. However, GACI states those  
            protections are not easily found, nor are they expressed in  
            plain language. SB 492 puts the fundamental rights of CCI  
            consumers in one place, giving both consumers and providers a  
            clear summary. The United Domestic Workers/American Federal of  
            State, County and Municipal Employees Local 3930 (UDW/AFSCME  
            Local 3930) writes this bill codifies the rights of CCI  
            consumers and requires DHCS to post the Bill of Rights on the  
            DHCS website and to disseminate hard copies upon consumer  
            request. UDW/AFSCME Local 3930 writes this bill is needed to  
            provide CCI consumers with a clear sense of their rights and to  
            improve access to programs and services.

          5.Opposition. The California Association of Health Plans (CAHP)  
            writes in opposition that this bill is unnecessary because  
            enrollees in managed care are already afforded extensive rights  
            in statute, regulations, and in the CCI's MOU between the DHCS  
            and the federal CMS. In addition to mimicking existing rights,  
            the rights contained in this bill are unenforceable because  
            they are extremely vague. CAHP members are concerned that they  
            will be held legally responsible for ensuring the new rights  
            are enforced on matters that are outside of the plans' control.  
            The goals contained in these rights are dependent upon all  
            parties involved in the program fulfilling their obligations.  
            For example, the list of rights includes cultural competence;  
            however, this phrase is undefined in the bill. This leaves  
            cultural competence open for interpretation with no clear  
            guidelines for enforcement. CAHP concludes that the  
            establishment of rights specifically for consumers in the CCI  
            creates more issues than it resolves.
          
          6.Policy issues. 
               a.     Language on Consumer Bill of Rights. This bill  
                 establishes broad and generally worded rights in a new  
                 code section in several areas where there is existing  
                 state law, federal law, a three-way contract, and the MOU.  








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                 To attempt to address potential conflicts between this  
                 bill, existing state law, federal preemption of state law  
                 related to Medicare, and the MOU, this bill contains  
                 language that implements its provisions only to the extent  
                 permitted by applicable federal Medicare law, applicable  
                 Medi-Cal law, and the MOU. However, the rights in this  
                 bill do not refer back to the underlying source of the  
                 right or otherwise define what the right would mean in  
                 practice. It is not clear how a consumer seeking to  
                 enforce a right under this bill would be informed as to  
                 the specific details of that right, or how departments  
                 implementing this bill would enforce the rights contained  
                 in this bill.

               b.     Codification of rights for consumer information. The  
                 stated goal of the author and proponents is to codify the  
                 existing rights of individuals enrolled in the CCI in  
                 order to address the confusion among consumers after CCI  
                 rollout and the lack of public awareness of existing  
                 rights by consolidating existing rights into a simple one  
                 page document with understandable language to consumers.  
                 There is currently information on consumer rights and  
                 responsibilities for individuals on CalMediConnect, but  
                 there does not appear to be a similar document for those  
                 individuals who are now required to receive their LTSS in  
                 Medi-Cal managed care. Given the stated goal of providing  
                 consumers and providers with information about their  
                 existing consumer rights in plain language, is adding a  
                 new code section to existing state law the best way to  
                 meet the stated policy goal of this bill? For example, if  
                 the goal of this bill is providing additional information  
                 to consumers, would a better way of doing so be to require  
                 DHCS to prepare a consumer brochure in areas in where the  
                 existing consumer information is inadequate? 
               
           SUPPORT AND OPPOSITION  :
          Support:  American Federation of State, County, and Municipal  
                    Employees
                    California Association for Health Services at Home
                    California Association of Public Authorities for IHSS
                    California Commission on Aging
                    California Long-Term Care Ombudsman Association
                    California Primary Care Association
                    California Program of All-inclusive Care for the  
                    Elderly








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                    California Senior Legislature
                    Government Action and Communications Institute
                    Community Clinic Association of Los Angeles County
                    United Domestic Workers/American Federal of State,  
                    County and Municipal Employees Local 3930
          
          Oppose:   California Association of Health Plans



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