BILL ANALYSIS �
AB 641
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CONCURRENCE IN SENATE AMENDMENTS
AB 641 (Feuer)
As Amended August 23, 2011
Majority vote
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|ASSEMBLY: |52-24|(May 23, 2011) |SENATE: |24-14|(September 7, |
| | | | | |2011) |
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Original Committee Reference: HEALTH
SUMMARY : Eliminates the citation review conference (CRC) process
from the citation appeals process for long-term care (LTC)
facilities, and allows fines to be levied from both state and
federal agencies when an incident violates both state and federal
laws. Requires the Department of Health Care Services (DHCS) to
consider, at the initial application or upon redetermination for
the Medi-Cal LTC benefit, whether an undue hardship exists for
eligibility for home and facility care under specified
circumstances relating to the transfer of assets.
The Senate amendments
1)Require, in addition to existing undue hardship provisions, DHCS
to consider, at initial application or upon redetermination for
the Medi-Cal LTC benefit, whether an undue hardship exists prior
to finding a person ineligible for Medi-Cal.
2)Provide that an undue hardship shall be found under the following
conditions:
a) The applicant has transferred ownership interest in the
shared principal residence to his or her same-sex spouse or
registered domestic partner;
b) The applicant has transferred ownership interest in assets
other than the principal residence to his or her same-sex
spouse or registered domestic partner in an amount that does
not exceed the community spouse resource allowance that would
be available if the person was an opposite-sex spouse; or,
c) The applicant has transferred income or right to receive
income to his or her same-sex spouse or registered domestic
partner and the amount does not exceed the amount that would
be allowed if the person was an opposite-sex spouse.
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3)Require DHCS to seek federal approval, including by state plan
amendment as needed, retroactive to January 1, 2012, and provide
that the provisions of 1) and 2) above are to be implemented only
to the extent federal approval and federal financial
participation is available and authorizes implementation by
all-county letter without the requirement of adopting
regulations.
4)Delete the provisions that increase increases the maximum penalty
amount for class "B" citations for LTC facilities from $1,000 to
$2,000.
5)Make other technical and clarifying changes.
EXISTING LAW :
1)Establishes the Medi-Cal Program, administered by DHCS, which
provides comprehensive health benefits to low-income children,
their parents or caretaker relatives, pregnant women, elderly,
blind or disabled persons, LTC facility residents, and refugees
who meet specified eligibility criteria.
2)Establishes eligibility criteria for Medi-Cal home and
community-based care (HCBC) and LTC facility services.
3)Requires DHCS to consider whether an undue hardship exists prior
to finding a person ineligible for HCBC or LTC services.
4)Provides for the inspection and licensure of long-term health
care facilities (LTC facilities) by the Department of Public
Health (DPH).
5)Establishes the Long-Term Care, Health, Safety, and Security Act
of 1973 (LTC Safety Act), which permits DPH to assess penalties
against LTC facilities for violation of prescribed state
statutes, regulations, and federal standards pertaining to
patient care. Prohibits the issuance of both a citation pursuant
to state laws and the recommendation that a federal civil
monetary penalty be imposed for the same action.
6)Requires monies collected as a result of the penalties imposed
pursuant to the LTC Safety Act, to be deposited into either the
State Health Facilities Citation Penalties Account or the Federal
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Health Facilities Citation Penalties Account (State and Federal
Accounts), and used, upon appropriation by the Legislature, for
the protection of health or property of residents of LTC
facilities.
AS PASSED BY THE ASSEMBLY , this bill streamlined the citation
appeals process for LTC by facilities by eliminating the CRC,
increased the maximum fine for class "B" citations for LTC
facilities and allowed fines to be levied from both state and
federal agencies when an incident violates both state and federal
laws.
FISCAL EFFECT : According to the Senate Appropriations Committee:
Fiscal Impact (in thousands)
Major Provisions 2011-12 2012-13 2013-14 Fund
Reduction in CDPH redirect $470 annually to other assignments
Special*
workload
Increase in penalty potentially significant Special**
revenue
Lost Medi-Cal potentially significant, likely in
theGeneral/***
share-of-cost revenue high hundreds of thousands to Federal
millions of dollars
* State Department of Public Health Licensing and Certification
Program Fund
**State and Federal Health Facilities Citation Penalty Account
***50% federal, 50% General Fund
COMMENTS : According to the author, LTC facilities are unable to
resolve citations they feel are unwarranted and LTC facility
residents, who may have been violated, do not receive justice in a
timely manner due to the prolonged citation review conference (CRC)
appeals process which at times can take years. The author
maintains that it makes sense to remove the CRC appeals process as
an available option to LTC facilities in favor of the more trusted
appeals processes in existing law, such as an administrative law
judge or a California Superior Court.
AB 19 X1(Blumenfield), Chapter 4, Statutes of 2011-12 First
Extraordinary Session, increased the upper limit of the penalty
range for Class B citations from $1,000 to $2,000 in conjunction
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with the extension of the Medi-Cal Quality Assessment Fee on LTC
facilities. This provision was therefore removed from this bill.
The author also argues that California is one of a few states that
bar a monetary penalty from both a state and federal agency when a
LTC facility action involves noncompliance with both a state and
federal law. The author asserts that it makes sense to allow both
entities to act if the laws of either were violated. By removing
this prohibition, this bill allows DPH to make a recommendation to
the federal Centers for Medicare and Medicaid Services (CMS) to
levy a monetary penalty. According to the author, there are no
requirements in this bill that such levies should be done for each
and every citation and this bill provides DPH with the discretion
to cite a higher penalty for the most egregious violations.
In June 10, 2011, CMS issued a State Medicaid Directors letter
regarding same sex partners and Medicaid liens, transfers of
assets, and estate recovery. Specifically, the letter restated the
federal policy that states have considerable flexibility in
determining whether undue hardship exists and the circumstances
under which they will impose transfer of assets penalties. The
letter further states that because of this flexibility, states may
adopt criteria that recognize that imposing transfer of assets
penalties on the basis of the transfer of ownership interest in a
shared home to a same-sex spouse or domestic partner would
constitute an undue hardship. This bill exercises this state
flexibility with regard to ownership in a shared home. The author
has also included the transfer of assets other than interest in a
shared home and transfer of income in the definition of undue
hardship.
DHCS has advised the author that under current estate recovery
procedures, estate recovery is deferred for the lifetime of a
surviving registered domestic partner or same-sex spouse.
Therefore, the DHCS Estate Recovery program would not place a lien
on the home or take other actions to recover from the estate for
the lifetime of the registered domestic partner or same-sex spouse
similar to the exemption in state and federal law for opposite-sex
spouses.
This bill was substantially amended in the Senate and the
provisions relating to undue hardship have not been heard by an
Assembly policy committee.
Analysis Prepared by : Marjorie Swartz / HEALTH / (916) 319-2097
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