Amended in Senate August 4, 2014

Amended in Assembly May 23, 2014

Amended in Assembly April 10, 2014

California Legislature—2013–14 Regular Session

Assembly Bill No. 1552

Introduced by Assembly Member Lowenthal

(Coauthors: Assembly Members Ammiano, Bonta, Chesbro, Ting, and Wieckowski)

January 27, 2014

An act to add Article 7 (commencing with Section 14590.10) to Chapter 8.7 of Part 3 of Division 9 of the Welfare and Institutions Code, relating to adult day health care, and declaring the urgency thereof, to take effect immediately.

LEGISLATIVE COUNSEL’S DIGEST

AB 1552, as amended, Lowenthal. Community-based adult services: adult day health care centers.

Existing law establishes the Medi-Cal program, administered by the State Department of Health Care Services, under which health care services are provided to qualified, low-income persons. The Medi-Cal program is, in part, governed and funded by federal Medicaid Program provisions. Existing law provides, to the extent permitted by federal law, that adult day health care (ADHC) be excluded from coverage under the Medi-Cal program.

This bill would establish the Community-Based Adult Services (CBAS) program as a Medi-Cal begin delete benefit. end delete begin insert benefit and would specify eligibility requirements for participation in the CBAS program. end insert The bill would require that CBAS providers be licensed as ADHC centers and certified by the California Department of Aging as CBAS providers. The bill would require CBAS providers to meet specified licensing requirements and to provide care in accordance with specified regulations. The bill would require that those provisions be implemented only to the extent that federal financial participation is available.

This bill would declare that it is to take effect immediately as an urgency statute.

Vote: ²⁄₃. Appropriation: no. Fiscal committee: yes. State-mandated local program: no.

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

SECTION 1.  

The Legislature finds and declares all of the
following:

(a) California supports the dignity, independence, and choice
of seniors and persons with disabilities to live in the most integrated
setting appropriate, in their own home or a community-based
setting, and to be free from unnecessary institutionalization.

(b) The American population is swiftly aging. According to the
begin insert federal end insert Centers for Disease Control begin insert and Prevention end insert , in begin delete 2007, end delete begin insert 2007 end insert
individuals 65 years of age and over represented begin delete 12.6% end delete begin insert 12.6
percent end insert of the American population; by 2030 it is estimated the
older adult population will reach begin delete 20% end delete begin insert 20 percent end insert of the whole,
with 70 million adults over 65 years of age. Many of these adults
will experience disability and chronic conditions. The Alzheimer’s
Association reports that over five million Americans are living
with Alzheimer’s disease and that number will grow to 16 million
by 2050, with the cost of caring for those individuals growing from
$203 billion in 2013 to $1.2 trillion by mid-century.

(c) According to the United States Census, California’s older
adult population is the country’s largest, with over four million
seniors currently residing in the state. The California Department
of Aging reports that one in every five Californians is now age 60
or older and begin delete 40% end delete begin insert 40 percent end insert of those individuals have a disability.
The state’s population is also diverse: just under one-half million
older adults in the state identify as Latino or Hispanic, 354,000
identify as Asian, over 182,000 as African American, and over
100,000 people as Native American, Pacific Islander, or multiracial.

(d) Adult Day Health Care (ADHC) was established in
California in 1974 as a service designed to meet the needs of older
adults and adults with disabilities in community settings rather
than in institutional care. ADHC centers are licensed daytime
health facilities that provide integrated services from a
multidisciplinary team including nurses, social workers,
occupational therapists, and other professionals.

(e) ADHC centers serve frail elders and other adults with
disabilities, chronic conditions, and complex care needs, such as
Alzheimer’s disease or other dementia, diabetes, high blood
pressure, mental health diagnoses, traumatic brain injury, and
people who have had a stroke or breathing problems or who cannot
take medications properly.

(f) ADHC centers also offer caregiver support, addressing
research findings that identify caregiver stress as a leading cause
of placement in a nursing facility, as well as putting the aging or
disabled adult at increased risk for abuse or neglect.

(g) ADHC services include health, therapeutic, and social
services including transportation; skilled nursing care; physical,
occupational, and speech therapy; medical social work services;
therapeutic exercise activities; protective supervision; activities
of daily living, brain-stimulating activities, and a nutritionally
balanced hot meal. Services are provided in accordance with a
person-centered care plan designed after a three-day
interdisciplinary team assessment that includes a home visit and
communication with the participant’s primary care physician.

(h) ADHC participants, who are at risk of institutionalization,
receive services in the center and return to their own homes at
night. According to a recent study by the California Medicaid
Research Institute, the statewide weighted average annual per
person nursing home cost for Medi-Cal/Medicare recipients in
California is $83,364, while the average annual expenditure per
person for ADHC for this population is $9,312.

(i) ADHC centers are licensed by the State Department of Public
Health and overseen by the California Department of Aging and
the State Department of Health Care Services.

(j) In 1977, Senator Henry Mello issued a report that identified
the need for 600 ADHC centers statewide to meet the needs of
California’s elder population. At its peak in 2004, approximately
360 ADHC centers provided care to over 40,000 medically fragile
Californians. In December 2013, there were a total of 270 open
ADHC centers in California, including 245 serving the Medi-Cal
population, two centers serving private-pay clients, and 23 centers
associated with Programs of All-Inclusive Care for the Elderly.
Medi-Cal recipients receiving services at ADHC centers totaled
24,800 persons.

(k) In 2014, 32 California counties do not have an adult day
health center.

(l) For many years, ADHC was a state plan optional benefit of
the Medi-Cal program, offering an integrated medical and social
services model of care that helped individuals continue to live
outside of nursing homes or other institutions.

(m) California’s adult day services have experienced significant
instability in recent years due to California’s fiscal crisis and
subsequent budget reductions. The Budget Act of 2011 and the
related trailer bill, Chapter 3 of the Statutes of 2011, eliminated
ADHC as a Medi-Cal optional State Plan benefit.

(n) A class action lawsuit, Esther Darling, et al. v. Toby Douglas,
et al., challenged the elimination of ADHC as a violation of the
Supreme Court decision in Olmstead v. L.C. The state settled the
lawsuit, agreeing to replace ADHC services with a new program
called Community-Based Adult Services (CBAS), effective April
1, 2012, to provide necessary medical and social services to
individuals with intensive health care needs. CBAS is a managed
care benefit, administered through California’s Medi-Cal Managed
Care Organizations. For CBAS-eligible individuals who do not
qualify for managed care enrollment and who have an approved
medical exemption or who reside in a county where managed care
is currently not available, CBAS services are provided as a
Medi-Cal fee-for-service benefit.

(o) The State Department of Health Care Services amended the
“California Bridge to Reform” Section 1115 Waiver to include
the new CBAS program, which was approved by the Centers for
Medicare and Medicaid Services on March 30, 2012. CBAS is
operational under the Section 1115 Bridge to Reform Waiver
through August 31, 2014. There is no cap on enrollment for this
waiver service.

(p) Adult day services and CBAS programs remain a source of
necessary skilled nursing, therapeutic services, personal care,
supervision, health monitoring, and caregiver support. The state’s
demographic forecast projects the continued growth of the aging
population at least through the year 2050, thereby increasing the
need and demand for integrated, community-based services.

(q) Continuation of a well-defined and well-regulated system
of CBAS programs is essential in order to meet the rapidly
changing needs of California’s diverse and aging population and
the state’s goals for the Coordinated Care Initiative.

(r) Ensuring that the CBAS program is codified beyond August
31, 2014, will enable thousands of disabled and frail Californians
who rely upon adult day health programs today, and those who
will need this service in the future, to be able to remain independent
and free of institutionalization for as long as possible.

SEC. 2.  

Article 7 (commencing with Section 14590.10) is
added to Chapter 8.7 of Part 3 of Division 9 of the Welfare and
Institutions Code, to read:

 

Article 7.  Community-Based Adult Services

 

14590.10.  

(a) Notwithstanding the operational period of CBAS
as specified in the Special Terms and Conditions of California’s
Bridge to Reform Section 1115(a) Medicaid Demonstration
(11-W-00193/9), and notwithstanding the duration of the CBAS
settlement agreement, Case No. C-09-03798 SBA, CBAS shall be
a Medi-Cal benefit, and shall be included as a covered service in
contracts with all managed health care plans, with standards,
eligibility criteria, and provisions that are at least equal to those
contained in the Special Terms and Conditions of the demonstration
on the date the act that added this section is chaptered. Any
modifications to the CBAS program that differ from the Special
Terms and Conditions of the demonstration shall be permitted only
if they offer more protections or permit greater access to CBAS.

begin insert

(b) CBAS shall be available to beneficiaries who meet or exceed
the medical necessity criteria established in Section 14526.1 and
for whom one of the following criteria is present:

end insert begin insert

(1) The beneficiary meets or exceeds the “Nursing Facility Level
of Care A” (NF-A) criteria as set forth in the California Code of
Regulations.

end insert begin insert

(2) Both of the following apply to the beneficiary:

end insert begin insert

(A) (i) The beneficiary has a diagnosed organic, acquired, or
traumatic brain injury or a chronic mental disorder, or both.

end insert begin insert

(ii) For the purpose of this subparagraph, “chronic mental
disorder” means that the beneficiary has one or more of the
following diagnoses or their successor diagnoses included in the
most recent version of the Diagnostic and Statistical Manual of
Mental Disorders published by the American Psychiatric
Association:

end insert begin insert

(I) A pervasive developmental disorder.

end insert begin insert

(II) An attention deficit and disruptive behavior disorder.

end insert begin insert

(III) A feeding and eating disorder of infancy, childhood, or
adolescence.

end insert begin insert

(IV) An elimination disorder.

end insert begin insert

(V) A schizophrenia and other psychiatric disorder.

end insert begin insert

(VI) A mood disorder.

end insert begin insert

(VII) An anxiety disorder.

end insert begin insert

(VIII) A somatoform disorder.

end insert begin insert

(IX) A factitious disorder.

end insert begin insert

(X) A dissociative disorder.

end insert begin insert

(XI) Paraphilia.

end insert begin insert

(XII) An eating disorder.

end insert begin insert

(XIII) An impulse control disorder not elsewhere classified.

end insert begin insert

(XIV) An adjustment disorder.

end insert begin insert

(XV) A personality disorder.

end insert begin insert

(XVI) A medication-induced movement disorder.

end insert begin insert

(B) The beneficiary needs assistance or supervision as described
in clause (i) or (ii).

end insert begin insert

(i) The beneficiary needs assistance or supervision with at least
two of the following:

end insert begin insert

(I) Bathing.

end insert begin insert

(II) Dressing.

end insert begin insert

(III) Feeding himself or herself.

end insert begin insert

(IV) Toileting.

end insert begin insert

(V) Ambulating.

end insert begin insert

(VI) Transferring himself or herself.

end insert begin insert

(VII) Medication management.

end insert begin insert

(VIII) Hygiene.

end insert begin insert

(ii) The beneficiary needs assistance or supervision with at least
one of the activities identified in clause (i) and needs assistance
with at least one of the following:

end insert begin insert

(I) Money management.

end insert begin insert

(II) Accessing community and health resources.

end insert begin insert

(III) Meal preparation.

end insert begin insert

(IV) Transportation.

end insert begin insert

(3) The beneficiary has a moderate to severe cognitive disorder
such as dementia, including dementia characterized by the
descriptors of, or equivalent to, Stages 5, 6, or 7 of the Alzheimer’s
type.

end insert begin insert

(4) The beneficiary has a mild cognitive disorder such as
dementia, including dementia of the Alzheimer’s type, and needs
assistance or supervision with at least two of the activities
described in clause (i) of subparagraph (B) of paragraph (2).

end insert begin insert

(5) (A) The beneficiary has a developmental disability.

end insert begin insert

(B) For the purpose of this paragraph, “developmental
disability” means a disability that originates before the individual
attains 18 years of age, continues, or can be expected to continue,
indefinitely, and constitutes a substantial disability for that
individual as defined Section 54001 of Title 17 of the California
Code of Regulations.

end insert begin delete

(b)

end delete

begin insert ( end insert begin insert c) end insert  (1) CBAS providers shall be licensed as adult day health
care centers and certified by the California Department of Aging
as CBAS providers, and shall meet the standards specified in this
chapter and Chapter 5 (commencing with Section 54001) of
Division 3 of Title 22 of the California Code of Regulations.

(2) CBAS providers shall meet all applicable licensing and
Medi-Cal standards, including, but not limited to, licensing
provisions in Division 2 (commencing with Section 1200) of the
Health and Safety Code, including Chapter 3.3 (commencing with
Section 1570) of Division 2 of the Health and Safety Code, and
shall provide services in accordance with Chapter 10 (commencing
with Section 78001) of Division 5 of Title 22 of the California
Code of Regulations.

(3) CBAS providers shall comply with the provisions of
California’s Bridge to Reform Section 1115(a) Medicaid
Demonstration (11-W-00193/9) and any successor demonstration.

begin delete

(c)

end delete

begin insert ( end insert begin insert d) end insert  (1) In counties where the State Department of Health Care
Services has implemented Medi-Cal managed care, CBAS shall
be available as a Medi-Cal managed care benefit pursuant to
Section 14186.3, except that for individuals who qualify for CBAS,
but who are not qualified for, or who are exempt from, enrollment
in Medi-Cal managed care, CBAS shall be provided as a
fee-for-service Medi-Cal benefit.

(2) In counties that have not implemented Medi-Cal managed
care, CBAS shall be provided as a fee-for-service Medi-Cal benefit
to all eligible Medi-Cal beneficiaries who qualify for CBAS.

begin delete

(d)

end delete

begin insert ( end insert begin insert e) end insert  For purposes of this section, “Community-Based Adult
Services” or “CBAS” means an outpatient, facility-based program,
provided pursuant to a participant’s individualized plan of care,
as developed by the center’s multidisciplinary team, that delivers
nutrition services, professional nursing care, therapeutic activities,
facilitated participation in group or individual activities, social
services, personal care services, and, when specified in the
individual plan of care, physical therapy, occupational therapy,
speech therapy, behavioral health services, registered dietician
services, and transportation.

begin delete

(e)

end delete

begin insert ( end insert begin insert f) end insert  This section shall be implemented only begin delete to the extent that end delete begin insert if end insert
federal financial participation is available.

SEC. 3.  

This act is an urgency statute necessary for the
immediate preservation of the public peace, health, or safety within
the meaning of Article IV of the Constitution and shall go into
immediate effect. The facts constituting the necessity are:

In order to allow sufficient time to implement these provisions
and to ensure the continuity of Community-Based Adult Services
in California and the health and safety of program participants, it
is necessary that this act take effect immediately.