CDCAN REPORT #123-2011: Federal lawsuit filed to stop elimination of Adult Day Health Care

FEDERAL LAWSUIT FILED TO STOP STATE FROM ELIMINATING ADULT DAY HEALTH CARE FOR OVER 34,000 PEOPLE WITH DISABLITIES & SENIORS

• Lawsuit Claims State Is Violating Federal Law and Previous Federal Court Decisions Unless State Can Prove Elimination Will Not Cause Harm to Recipients
• State Says Elimination Is Necessary Due to Budget Crisis and That It Is Moving To Transition People Safely Into Other Medi-Cal Services

SACRAMENTO, CALIF  (CDCAN)  [Last Updated 06/11/2011  04:55 AM] -  Seven persons with disabilities and seniors filed on Friday (June 10th) legal documents requesting that a federal district court in Oakland stop the State of California from eliminating Adult Day Health Care as a Medi-Cal service because it would be a violation of the Americans with Disabilities Act (ADA) and other federal laws unless the State can prove that the elimination will not cause those impacted to be harmed, including placement into a nursing facility or hospital.

While conceding that the State did have the technical right to eliminate Adult Day Health Care, the lawsuit claims that federal laws and previous federal court decisions require that it must first demonstrate that recipients will receive “adequate, appropriate, and uninterrupted replacement services necessary to prevent institutionalization” before it eliminates the Medi-Cal benefit.   The lawsuit claims the State has not done so.

“Elimination of this program as a Medi-Cal benefit will not only cause irreparable harm to the tens of thousands of people affected by the cuts, but will also result in increased costs to the State and counties in hospitalization, nursing facility placements, Adult Protective Services, and emergency services,” said Elissa Gershon, Senior Attorney with Disability Rights California in a statement released Friday.

The Brown Administration however claims that the elimination of Adult Day Health Care – and reductions in other health and human services, is necessary due to the State’s on-going budget crisis and that a plan is being developed with stakeholders to move people safely into other Medi-Cal services.

The legal action comes on the same day that Robertson Adult Day Health Care Center in Sacramento announced it would be closing it doors due to State budget reductions and the impending elimination of Adult Day Health Care services – the 7th community-based center to do so this year.  Robertson Adult Day Health Care Center served over 80 adults with disabilities and seniors and employed some 25 persons.

The Robertson Adult Day Health Care Center was one of over 300 community-based organizations across the State who employ over 7,000 professional and other staff and provide Adult Day Health Care services.

The legal action filed Friday also comes on the same day that the State Senate approved a budget related bill – AB 96 (one of several budget related bills passed) that would only partially address and resolve the claims in the lawsuit of violations of federal laws and previous federal court decisions.

Legal Action Continues Original Lawsuit Filed in August 2009

The legal action was filed under an existing federal class action lawsuit known as “Darling, et. al. v. Douglas, et. al” (Case Number: C09-03798 SBA) that was originally filed in August 2009 that blocked previous cuts to Adult Day Health Care in September 2009 and February 2010.  The name “Darling” refers to the first or lead plaintiff in the case - 74 year old Esther Darling of Woodland – and the name “Douglas” refers to Toby Douglas, the current director of the California Department of Health and Human Services, the state agency that is responsible for overseeing California’s federally funded Medicaid program (called “Medi-Cal”).

[A copy of the 31 page motion (request) is attached to this CDCAN Report titled “2011-06-09 - Darling v. Douglas – Notice For Motion (ADHC Lawsuit).pdf”  and was saved as a document – not as an image and persons who are blind or sight impaired should be able to read this document using a screen reading device]

This current round of legal action continues a case originally filed in August 2009, in federal court in the Northern District of California.

The federal district court previously blocked cutbacks to Adult Day Health Care in September 2009 and February of 2010. The first order in September 2009 halted an across-the board cut in Medi-Cal funding for Adult Day Health Care  from a maximum of five days per week to no more than three, regardless of individual need, finding that this arbitrary reduction would have increased the likelihood of nursing home placement and hospitalization of the 8,000 program participants attending four and five days per week.

The second order in February 2010 stopped implementation of a more restrictive eligibility criteria that would have terminated services for 8,000 to 15,000 people in the Adult Day Health Care program.

The name of the lawsuit has changed three times since then due to the passing of the first lead plaintiff, Lillie Brantley, and then the passing of this year of Harry Cota, who was the second lead plaintiff.  In addition, since August 2009, the director of the Department of Health Care Services changed from David Maxwell-Jolly to Toby Douglas.

Seven Persons Filing Lawsuit Have Significant Disabilities & Health Needs

The seven persons filing the lawsuit (on behalf of the over 34,000 people with disabilities and seniors in the Adult Day Health Care program) have significant disabilities and health needs that they or their guardians say Adult Day Health Care provides and cannot be met by other existing community-based services (the description of their ages and disabilities and health issues are in the lawsuit and public record with their approval):

• Esther Darling, a 74-year-old woman who is diagnosed with diabetes, post-stroke with paralysis affecting her left side, atrial fibrillation, incontinence of urine, edema, depression, hearing loss, hemorrhoids, and gout.  Darling receives Medi-Cal and attends Adult Day Health Care center five days per week. She receives 114 hours of In-Home Supportive Services (IHSS) per month and she is on the waitlist for MSSP (Multipurpose Senior Services Program) services. According to the lawsuit, Darling lives alone and has no one who can take care of her and relies on Adult Day Health Care  to remain in her own home.
• Allie Jo Woodard, an 81-year-old woman who is diagnosed with bipolar affective disorder, depression, glaucoma, seizure disorder, hypertension, osteoarthritis, and is pre-diabetic.  According to declaration filed with the lawsuit, although Woodard lives alone, after a two-day disappearance a few years ago, her family ensures that she is never alone with her daughter and son taking turns spending the nights with her, as they juggle full time jobs and their own families. Woodard currently receives the maximum amount of In-Home Supportive Services (IHSS) and is not eligible for an increase in hours.  In a declaration filed with the lawsuit, without Adult Day Health Care, she would require daily nurse visits, psychotherapy, physical therapy, and dietician services and she would need “supervision 24 hours a day, seven days a week to keep her safe because of her risk of falls and her wandering behaviors.”.
• Gilda Garcia, a 76-year old woman with unstable diabetes, hypertension, Bells’ Palsy, depression, peripheral neuropathy, and arthritis.  Garcia has unstable diabetes such that the frequent medical monitoring by Adult Day Health Care Center nursing cannot be replicated by periodic doctor visits. Garcia also receives 102.8 hours of In-Home Supportive Services (IHSS) per month and MSSP (Multipurpose Senior Services Program) case management, however neither program provides the medical monitoring that Garcia’s condition requires, according to a declaration filed with the lawsuit.
• Ronald Bell, a 46-year-old-man with diabetes, organic brain syndrome, a seizure disorder, arthritis, hypertension, and hyperlipidemia and lives with his 80-year-old grandmother, who relies on the Adult Day Health Care services Bell receives to keep him safely at home with her.
• Wendy Helfrich, a 40-year-old woman who is diagnosed with anoxic brain damage due to cardiac arrest. Helfrich receives Medi-Cal and is currently attending Adult Day Health Care three days per week, lives at home with her parents and has partial custody of her children.  Helfrich receives the maximum number of In-Home Supportive Services (IHSS) hours (she used to receive 283 hours per month but due to state budget cuts, she now receives 274 hours per month). Due to the severity of her cognitive and physical disabilities, Helfrich requires round-the-clock supervision to remain in her home.
• Jessie Jones, a 67-year-old woman who has been disabled since 1990, when she had a severe stroke.  She has a seizure disorder, hypertension, and congestive heart failure, receives Medi-Cal and currently attends Adult Day Health Care center five days per week.  She lives with her daughter and her daughter’s family and receives 99 hours of In-Home Supportive Services (IHSS) per month.
• Raif Nasyrov, a 88-year-old monolingual Russian speaking man who is diagnosed with hypertension, arthritis, pulmonary vascular disease, cataracts, depression, dementia, hearing loss, urinary and fecal incontinence, Alzheimer’s disease, ulcer, and anxiety. Nasyrov receives Medi-Cal and attends Adult Day Health Care center five days per week. Lives with his daughter who relies on Adult Day Health Care, saying that she cannot leave her father alone because he may wander away. His wife passed away in 2010 and her passing has contributed to his feelings of depression and isolation.

Five Legal Advocacy Organizations Representing Those Filing Lawsuit

The seven persons with disabilities and seniors are represented  by Disability Rights California, the National Senior Citizens Law Center, the National Health Law Program, AARP Foundation Litigation, and the firm of Morrison & Foerster LLP.

• Elissa Gershon, Disability Rights California (Phone: 510-267-1200)
• Anna Rich, National Senior Citizens Law Center (Phone: 650-804-6614)
• Sarah Somers, National Health Law Program, (Phone: 919-968-6308, extension 102)
• Ken Kuwayti, Morrison & Foerster LLP (Phone: 650-813-5688)

For more information on the lawsuit, go to the Disability Rights California website at: http://www.disabilityrightsca.org/advocacy/Darling-v-Douglas/index.html

“The State cannot shirk its obligation to provide medically necessary services to each and every Medi-Cal participant who qualifies,” said Anna Rich of the National Senior Citizens Law Center, adding that if California chooses to eliminate Adult Day Health Care “…it still must, according to federal law, continue to provide skilled nursing and therapy services to people who need them.”

Ken Kuwayti of Morrison & Foerster said that California “…has twice been admonished for not meeting their obligation to the health and safety of Californians with disabilities and ensuring compliance with federal civil rights laws. If the State chooses to eliminate Medi-Cal funded ADHC [Adult Day Health Care], it must do so responsibly and legally.”

Who Is Impacted By Elimination of Adult Day Health Care

Over 34,000 adults with disabilities – including those with developmental disabilities – and seniors are currently assessed and eligible under State and federal laws as needing the specific services and supports provided by the over 300 Adult Day Health Care centers across the State and over 7,000 staff.

[CDCAN Note: The reporting of the numbers of people in the program varies depending on the source – with the State in recent budget legislative hearings and stakeholder meeting in May  citing over 34,000 people. In previous hearings and analysis, the state – and advocacy groups pegged the number at over 37,000.  Earlier this year – in February however, the Department of Health Care Services was attributed in budget hearings as saying the number was about 27,000 people, which has since been corrected or adjusted to reflect the higher 34,000 number. ]

Citing the critical importance of the Adult Day Health Care program, Darling, the lead plaintiff in the lawsuit now,  said in a statement that her life has greatly improved because of it and she would be “…lost without it” if the services were eliminated.

“Before I came to the Center, I used a wheelchair all the time, but now I can walk. My life is so much better because of the Center,” Darling said.

Others impacted include the families of the recipients, and of the workers.

State and local government agencies involved with the Medi-Cal and aging programs, the 21 non-profit regional centers who coordinate services for over 240,000 people with developmental disabilities are – or would be – impacted by the elimination of Adult Day Health Care.

Legislature in March Approved Governor’s Proposal To Eliminate Adult Day Health Care

• Governor Brown proposed on January 10th – and the Legislature passed on March 17th and the Governor approved on March 24th, budget related legislation (AB 97) that included a provision that would eliminate Adult Day Health Care as a Medi-Cal “optional benefit” and upon approval of the federal government, an effective date as early as September 1, 2011.   
• The Legislature in March did change the Governor’s proposal to restore half of the funding that Adult Day Health Care centers would receive in the 2011-2012 State Budget year that begins July 1st for the purpose of continuing a new model of Adult Day Health Care under a new federal Medicaid waiver – though under a significantly reduced budget and perhaps scope of services.
• However the Legislature’s action in March was only “intent language” – meaning it did not specifically authorize or direct the Department of Health Care Services – to develop and submit a request to the federal government for a new federal Medicaid waiver, and it the Legislature did not mention or require that the elimination of Adult Day Health Care takes effect only when the model of the program is actually implemented and could have people transitioned into it.
• And the Legislature, while approving the main budget bill (SB 69) on a majority vote in March that contained the restoration of half of the Adult Day Health Care program, never sent that bill to the Governor for approval, because the over-all revenue budget issue was never - and still is not – resolved.

Adult Day Health Care Currently A Medi-Cal “Optional Benefit”

• Adult Day Health Care is currently a Medi-Cal “optional benefit” and the adult day health care centers are licensed community-based day care programs providing a variety of health, therapeutic, and social services to those at risk of being placed in a nursing home.
• The centers are licensed by the Department of Public Health and certified for participation in the Medi-Cal Program by the California Department of Aging.
• This benefit is called “optional” because the federal government does not require the states to include it as part of their required Medicaid funded services.
• Each adult day health care center has a multidisciplinary team of health professionals who conduct assessments of each potential participant to determine and plan the services needed to meet the individual's specific health and social needs. Services provided at the center include: medical services; nursing and personal care services; physical, occupational and speech therapy; psychiatric and psychological services; social services; therapeutic activities; hot meal and nutritional counseling; and transportation to and from the center.
• In California, persons who are assessed as being eligible and in need of the specific services that only Adult Day Health Care provides as a Medi-Cal service, average 78 years old and take six or more medications a day, for which nearly 2/3 require supervision or assistance. More than 2/3 also face at least three serious medical challenges including cardiovascular disease, dementia, and diabetes. The overwhelming majority (92%) are entirely dependent on Medi-Cal funding for their care at Adult Day Health Care centers.

Elimination of Adult Day Health Program Part of Governor’s 2011-2012 Budget Approved by Legislature

• January 10, 2011: Governor proposed elimination of Adult Day Health Care as a Medi-Cal benefit as part of his January 10th proposed 2011-2012 State Budget
• March 2011 - Citing problems in the program, including reports of fraud, disputed by advocates, the Legislature, after budget subcommittee hearings and strong opposition by advocates, modified the Governor’s proposal with intent language that still called for the elimination of Adult Day Health Care as a Medi-Cal benefit, but to create a new model of community-based services under possibly a new or existing Medicaid waiver that would retain some number of the existing over 300 community-based organizations that provide Adult Day Health Care services.
• March 24, 2011: Governor Brown signed 13 budget related bills – called “budget trailer bills” including AB 97 which contained the changes in State law authorizing the elimination of Adult Day Health Care as Medi-Cal optional benefit and the transition of people in the program into other Medi-Cal Services.  People can access the enacted version of AB 97  at: http://www.leginfo.ca.gov/pub/11-12/bill/asm/ab_0051-0100/ab_97_bill_201...
• The provisions dealing with Adult Day Health Care program begins at the bottom of page 58 through page 61.
• April 2011 – Department of Health Care Services indicated that it had no plans to move forward in developing a waiver to the federal government to continue a new version of adult day health care, nor taking any steps yet regarding the transition of existing centers to a new program model, because the budget trailer bill (AB 97) provided only “intent” of the Legislature and did not give the department actual authorization in state law to move forward on that issue.
• May 12, 2011 – Department of Health Care Services submits proposal to the federal government to approve, an amendment (change) to California’s Medicaid State Plan that would, 60 days after federal approval, eliminate adult day health care as a Medi-Cal optional benefit.  The Department of Health Care Services said in May that assuming the federal government approved the State’s request sometime in June, the elimination of adult day health care as a Medi-Cal optional benefit could go into effect as early as September 1, 2011.
• May 13, 2011 – Department of Health Care Services holds first stakeholder meeting in Sacramento (and also via toll free lines and the internet) regarding its initial plan to transition the over 34,000 people with disabilities and seniors in adult day health care into other Medi-Cal funded services.  Many person at the meeting expressed strong opposition and concerns regarding the State’s plan.  The issue continuing adult day health care under a new federal waiver was not addressed at the meeting.
• May 16, 2011 – Governor Brown releases his proposed budget revisions to the 2011-2012 State Budget, that included $25 million in State general funds for the transition of people in adult day health care programs into other Medi-Cal funded services. His budget revisions however did not include any other funding to continue adult day health care under a new federal waiver – nor any proposal or funding that would direct the Department of Health Care Services to do so.
• May 26, 2011 – Senate Budget Subcommittee #3 on Health and Human Services votes 2-0 to reject the Governor’s May 16th budget revision proposal dealing with adult day health care, and instead, restored again the $170 million ($85 million of that State general funds) for the program in the 2011-2012 State budget year with budget related (“trailer bill”) language that would direct the Department of Health Care Services to develop and submit a waiver to the federal government that would create a new model of adult day health care as intended in March (reflecting language in two bills authored by Assemblymember Bob Blumenfield and Sen. Mark DeSaulnier). The new model however – as in March – would be significantly reduced in funding and scope from the existing adult day health care program – but unlike the Governor’s plan, would not be fully eliminated.
• May 27, 2011 – Assembly Budget Subcommittee #1 on Health and Human Services approves the same action taken by the Senate the previous day.
• June 10, 2011 – State Senate approves AB 96, the Adult Day Health Care budget trailer bill that directs the Department of Health Care Services to submit to the federal government a proposal for a new federal waiver that would continue a new model of Adult Day Health Care services – though under a significantly reduced budget and likely a more limited scope of services.    The Assembly will not take up any of the budget bills until – at the earliest – on Monday, June 13th.  The budget related legislation would still require approval from the Governor.
• While it is difficult for a governor to veto a budget trailer bill (because it usually contains many other provisions that are tied to the main budget bill) a governor can still use their line item veto lower to reduce (or eliminate) funding in the main budget bill (there are certain restrictions regarding entitlement programs, such as Medi-Cal unless the Legislature approved a change in law that would allow a reduction).  The Governor, last week, in a speech before the California Chamber of Commerce, indicated he might use that line item veto power to reduce spending in the budget where the Legislature restored funding – though did not mention any specifics.

Other Medi-Cal Optional Benefits Eliminated in 2009

• In February 2009 the Governor proposed and the Legislature approved the elimination of 9 other Medi-Cal “optional benefits” including adult dental, podiatry and other services, which went into effect July 1, 2009.
• A lawsuit filed on behalf of Medi-Cal recipients by the Novato based Medicaid Defense Fund headed by attorney Lynn Carman, in federal court tried to block implementation of the elimination of those benefits but failed in August 2009.  Other lawsuits filed after that allowed certain providers – rural health clinics – to continue to provide some of the eliminated optional benefits, saying that the State failed to obtain federal approval to eliminate those benefits.

AB 96 – New Budget Trailer Bill On Adult Day Health Care

As reported earlier, the State Senate approved on Friday (June 10th) AB 96 that provides authorization and direction to the Department of Health Care Services to move forward on submitting a Medicaid waiver to the federal government for a new model of Adult Day Health Care.

The legislation – part of a package of budget related bills for the 2011-2012 State Budget – still needs approval by the Assembly (which will not meet until Monday, June 13th at the earliest) and then approval by the Governor.

The legislation however, as currently amended, would only partially resolve or address the issues raised by the lawsuit filed June 10th that claim violations of federal law and previous federal court decisions.  

LINK TO LATEST VERSION OF BILL -  HTML:  http://www.leginfo.ca.gov/pub/11-12/bill/asm/ab_0051-0100/ab_96_bill_20110608_amended_sen_v96.html

LINK TO LATEST VERSION OF BILL – PDF: http://www.leginfo.ca.gov/pub/11-12/bill/asm/ab_0051-0100/ab_96_bill_20110608_amended_sen_v96.pdf

AB 97 Provisions Dealing With Elimination of Adult Day Health Care

The following are the specific provisions from AB 97, Chapter 3 Statutes of 2011, as passed by the Legislature on March 16, 2011 and signed into law by Governor Brown on March 24, 2011 that authorizes the elimination of  Adult Day Health Care (pages 58 through 61). The provisions of this bill remain in force until another bill is passed by the Legislature and signed into law by the Governor or if block or modified by a lawsuit:

“Article 6. Cessation of Adult Day Health Care and Assistance with Transition from Adult Day Health Care Services to Other Services

14589. (a) The Legislature finds and declares the following:

(1) During times of economic crisis, it is crucial to find areas within the program where efficiencies can be achieved while continuing to provide community-based services that support independence.

(2) Adult Day Health Care (ADHC) has been vulnerable to fraud and, despite attempts to curtail and prevent fraud, including, but not limited to, a moratorium on new facilities and onsite treatment authorization request review, fraud continues in this area.

(3) The state has added services and programs to enable vulnerable populations to remain in the community, including, but not limited to, the Money follows the Person project, California’s 1115 Comprehensive Medi-Cal Demonstration Project Waiver: a Bridge to Reform, and services and supports, including day programs, provided under the Lanterman Act.

It also continues to explore opportunities to add additional services and programs to help individuals remain in the community, including, but not limited to, pilot projects to better meet the health care needs of individuals dually eligible for both Medicare and Medicaid, and exploring the Community First Choice Option as a Medi-Cal benefit.

(4) There are alternative services to meet the needs of Medi-Cal beneficiaries utilizing ADHC, including in-home supportive services, physical, occupational, and speech therapies, nonemergency medical transportation, and home health services.

(b) Therefore, it is the intent of the Legislature for the department to obtain federal approval to eliminate ADHC as an optional Medi-Cal benefit.

14589.5. (a) Notwithstanding any other provision of law related to the Medi-Cal program or to adult day health care, adult day health care is excluded from coverage under the Medi-Cal program.

(b) This section shall only be implemented to the extent permitted by federal law.

(c) Notwithstanding Chapter 3.5 (commencing with Section 11340) of Part 1 of Division 3 of Title 2 of the Government Code, the department may implement the provisions of this section by means of all-county letters, provider bulletins, or similar instructions, without taking further regulatory action.

(d) This section shall be implemented on the first day of the first calendar month following 90 days after the effective date of the act that adds this section or on the first day of the first calendar month following 60 days after the date the department secures all necessary federal approvals to implement this section, whichever is later.

14590. (a) As a result of the enactment of this article to eliminate adult day health care as an optional benefit under the Medi-Cal program, the department shall implement a short-term program to fund organizations to assist individuals receiving ADHC services to transition to other Medi-Cal services, social services, and respite programs, or to provide social activities and respite assistance for individuals who were receiving ADHC services at the time the services were eliminated. The goal of this funding is to minimize the risk of institutionalization by identifying needed services available in the community and providing beneficiaries assistance in accessing those services.

(b) To ensure a smooth transition, adult day health care centers shall provide relevant participant information, including the most recent copy of a participant’s individual plan of care, to the department. Final Medi-Cal payment to adult day health care centers is contingent upon the provision of participants’ individual plan of care and all documentation supporting that individual plan of care, including medical records, to the grantee. Failure to provide documents under this section is grounds for a temporary withhold of payment to the adult day health care center under the process established pursuant to Section 14107.11.

(c) To implement this section, the department may contract with public or private entities and utilize existing health care service provider enrollment and payment mechanisms, including the Medi-Cal program’s fiscal intermediary. Contracts entered into for the purposes of implementing this article, including any contract amendments, system changes pursuant to a change order, and any project or system development notices, may be developed using a competitive process established by the department and shall be exempt from Chapter 5.6 (commencing with Section 11545) of Part 1 of Division 3 of Title 2 of the Government Code, Article 4 (commencing with Section 19130) of Chapter 5 of Part 2 of Division 5 of Title 2 of the Government Code, and the Public Contract Code, and any associated policies, procedures, or regulations under those provisions, and shall be exempt from review or approval by any division of the Department of General Services and the California Technology Agency. A contract may provide for periodic advance payments for services to be performed.

(d) Notwithstanding the rulemaking provisions of the Administrative Procedure Act (Chapter 3.5 commencing with Section 11340) of Part 1 of Division 3 of Title 2 of the Government Code), the department may implement this article through provider bulletins or similar instructions without taking regulatory action.

(e) Implementation of the short-term program to assist individuals receiving ADHC services to transition to other Medi-Cal services, social services, and respite programs, or to provide social activities and respite assistance for individuals who were receiving ADHC services at the time the services were eliminated, is subject to an appropriation in the annual Budget Act.

SEC. 105. During the 2011–12 Regular Session of the Legislature, legislation will be adopted to create a new program called the Keeping Adults Free from Institutions (KAFI) program. This program will provide a well-defined scope of services to eligible beneficiaries who meet a high medical acuity standard and are at significant risk of institutionalization in the absence of such community-based services. It is the intent of the Legislature that the program allow current recipients of Adult Day Health Care (ADHC) services that meet certain high acuity measures to immediately transition to KAFI services. As prescribed by subsequent statute, the Department of Health Care Services shall develop a federal waiver to maximize federal reimbursement for the KAFI program to the extent permitted by federal law. The Budget Act of 2011 includes funding for the KAFI program.”

File Attachments: 

2011-06-09 - Darling v. Douglas - Notice For Motion (ADHC Lawsuit).pdf (226.88 KB)