BILL ANALYSIS Ó SENATE COMMITTEE ON HEALTH Senator Ed Hernandez, O.D., Chair BILL NO: SB 492 --------------------------------------------------------------- |AUTHOR: |Liu | |---------------+-----------------------------------------------| |VERSION: |April 20, 2015 | --------------------------------------------------------------- --------------------------------------------------------------- |HEARING DATE: |April 29, 2015 | | | --------------------------------------------------------------- --------------------------------------------------------------- |CONSULTANT: |Scott Bain | --------------------------------------------------------------- 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 SB 492 (Liu) Page 2 of ? 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 SB 492 (Liu) Page 3 of ? 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 SB 492 (Liu) Page 4 of ? 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 SB 492 (Liu) Page 5 of ? 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 SB 492 (Liu) Page 6 of ? 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 SB 492 (Liu) Page 7 of ? 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, SB 492 (Liu) Page 8 of ? 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. SB 492 (Liu) Page 9 of ? 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 SB 492 (Liu) Page 10 of ? 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 -- END --