CDCAN REPORT #154-2011: Governor vetoes AB 96, Adult Day Health Care, budget trailer bill; Governor signs SB 91

GOVERNOR VETOES AB 96 ADULT DAY HEALTH CARE BUDGET TRAILER BILL

Says Administration Will Work To Transition Over 34,000 Seniors and People with Disabilities in the Program to Other Medi-Cal Community-Based Services - News Disappoint and Angers Disability and Senior Advocates Including Over 300 Community-Based Providers and 7,000 Workers

SACRAMENTO, CALIF (CDCAN)  [Last updated 07/25/2011 03:45 PM] - Governor Brown vetoed today AB 96, the budget trailer bill that calls for the creation of a new model of Adult Day Health Care saying the such a new "...look-alike program at this juncture is unnecessary and untimely," in an action that is sure to disappoint and anger tens of thousands of people with disabilities and seniors, their families, hundreds of community-based providers and thousands of workers who provide those services. The Governor as expected, signed a less controversial budget trailer bill also dealing with adult day health centers - SB 91, that would allow those centers to continue to operate as licensed facilities without the requirement of being certified as a Medi-Cal provider.

The current version of Adult Day Health Care as a Medi-Cal "optional benefit" is scheduled for elimination as of December 1, 2011 (the original date was September 1, 2011, but the Department of Health Care Services requested that the effective date be delayed 90 days from that date to help with transition efforts.  The federal government approved the request last week).

[CDCAN Note:  A copy of the 2 page veto message is attached to this CDCAN Report titled "2011-07-25 - AB 96 Veto Message (Adult Day Health Care, Keeping Adults Free from Institutions).pdf"  . It was sent out by the Governor's office as a pdf "image" rather than a document, which means that persons who are blind or sight impaired will not be able to read it using a screen reading device.  I reproduced the full text of the veto message below in this report however - Marty Omoto]

The news of the Governor's veto will impact over 34,000 people with disabilities and seniors in the Adult Day Health Care program, and the over 300 community organizations and over 7,000 people who, as employees who provide those services - all who faced imminent elimination of the Medi-Cal service, and likely closure of hundreds of community-based providers and the loss of thousands of jobs across the State by December 1, 2011.

The Governor in his veto message added that the bill, authored by Assemblymember Bob Blumenfield (Democrat - Van Nuys), "...does not address the immediate need to transition ADHC [Adult Day Health Care] beneficiaries to other home and community-based services that can meet their needs, and would cause confusion for both consumers and providers about when an ill-defined" new model of Adult Day Health Care would be available.

Regarding the existing over 300 community based providers who provide Adult Day Health Care services and their over 7,000 workers - all who face the prospect of loss of jobs or outright closure, the Governor in his veto message said that "...to the extent that adult day health care-type services can become part of an integrated continuum of care, my Administration will work to bring such providers into the conversation on how these services can be efficiently and effectively delivered for the benefit of consumers," adding that "...for this reason, I am signing Senate Bill 91, which will allow adult day health centers to continue to operate after the fee-for-service payments under Medi-Cal expire.  This will allow adult day health centers tobe considered a care option as part of an integrated delivery system, or for consumers who may wish to access services apart from Medi-Cal."

The elimination of the entire Adult Day Health Care program as a Medi-Cal "optional benefit"  was proposed by Governor Brown last January and approved by the Legislature in March as part of the larger package of spending cuts to close the enormous budget deficit.  The elimination of Adult Day Health Care as a Medi-Cal "optional benefit" was the largest single sweeping reduction in health and human services in at least the last 15 years with the combined direct impact of tens of thousands of recipients, workers and hundreds of community-based providers - nearly all who face imminent closure, and for individual workersthe  loss of jobs and income for their own families in a matter of months.

It is called a Medi-Cal "optional benefit" because it is a benefit or service that the federal government does not require the states to provide as part of their approved Medicaid program (called "Medi-Cal" in California).

WHAT THIS NEWS MEANS

• Adult  Day Health Care will remain a Medi-Cal benefit at least until December 1, 2011 (instead of September 1, 2011).
• With the veto by the Governor today,  the Brown Administration - as represented by the Department of Health Care Services - will notofficially move forward in any planning, development or submission of a proposal for a new model of Adult Day Health Care under a new federal Medicaid waiver or other proposal under the Medicaid program .
• The State however will proceed officially with a plan to only move people currently in the Adult Day Health Care program into other similar Medi-Cal services - with no official plans regarding the transition of existing Adult Day Health Care centers and their employees, and no plans regarding development and submission of a proposal for a new model of the program under a federal Medicaid waiver or other Medicaid program.
• The Legislature in March and again in June, restored $85 million in State general funds for the 2011-2012 State budget year to help in transition of the eliminated Medi-Cal benefit into a new model of Adult Day Health Care.
• However that amount is only half the State general funding that the Adult Day Health Care program received in the 2010-2011 State budget year that ended June 30th. It is not clear how many of the over 300 centers, 7,000 employees and over 34,000 recipients will be able to continue in a new model of Adult Day Health Care with State general funding cut by 50%.
• A federal lawsuit to block the elimination from proceeding was filed in federal district court in June on behalf of the recipients of Adult Day Health Care.  A hearing was originally set for July 26th, but reportedly was postponed until November because of the delay in the effective date of the elimination of the Medi-Cal benefit until December 1, 2011.

WHO THIS IMPACTS

• Over 34, 000 seniors and people with disabilities - including thousands of persons with developmental disabilities, who are in the Adult Day Health Care program either through Medi-Cal or referred there through one of the 21 non-profit regional centers under the State's Lanterman Developmental Disabilities Services Act  (the nation's only civil rights act for persons with developmental disabilities).  It is not clear how the elimination of the Medi-Cal optional benefit impacts those persons since they were placed in those programs through regional centers - not through the Medi-Cal program.
• Over 7,000 people who work in the over 300 community-based organizations that provide Adult Day Health Care services - probably nearly all facing either outright closure and elimination of thousands of jobs in a matter of months, the time frame is not clear.   Advocates say that many of those people and organizations could be helped by the enactment of AB 96.
• Other agencies and community organizations, including the 21 non-profit regional centers, county health and human services agencies, including those involved with Medi-Cal, In-Home Supportive Services, housing and other supports and services.

COMPLETE TEXT OF GOVERNOR'S VETO MESSAGE:

OFFICE OF THE GOVERNOR

July 25, 2011

To the Members of the California State Assembly:

I am returning Assembly Bill 96 without my signature.

The bill would recreate, under a different name, the same Adult Day Health Care (ADHC) program that was eliminated as a Medi-Cal optional benefit through the 2011-12 Budget Act. While my Administration deeply shares the goal of "Keeping Adults Free from Institutions," creating a new ADHC look-alike program at this juncture is unnecessary and untimely. It does not address the immediate need to transition ADHC beneficiaries to other home and community-based services that can meet their needs, and would cause confusion for both consumers and providers about when an ill-defined "KAFI" program would be available.

In order to ensure that ADHC benefciaries do not face the risk of unnecessary institutionalization when the benefit expires, my Administration is currently working with adult day health centers, managed care plans, and local community-based organizations to ensure that need medical services and home and community-based services are available.  Additionally, in order to ensure that ther eis enough time for transition to such services, the Department of Health Care Services recently extended the ADHC benfit through administrative action untuil December 1, 2011, with federal funding approval.

Given the importance if these transition efforts, I am directing the Department of Health Care Services to work with the Legislature, stakeholders, managed care plans, and home and community-based services providers to ensure that ADHC beneficiaries will have a smooth transition to appropriate servies, and those who are most at risk of institutionalization have access to services that will help them remain in the community.

Care in an integrated setting will be part of my Administration's plan to improve long-term care.  To the extent that adult day health care-type services can become part of an integrated continuum of care, my Administration will work to bring such providers into the conversation on how these services can be efficiently and effectively delivered for the benefit of consumers.

For this reason, I am signing Senate Bill 91, which will allow adult day health centers to continue to operate after the fee-for-service payments under Medi-Cal expire.  This will allow adult day health centers to be considered a care option as part of an integrated delivery system, or for consumers who may wish to access services apart from Medi-Cal.

Sincerely,

[SIGNED]
Edmund G. Brown Jr.

CDCAN SUMMARY OF ADULT DAY HEALTH CARE RELATED BUDGET TRAILER BILLS

This is the latest information and status (Monday, July 25, 2011) on the three budget related bills that impact Adult Day Health Care (or the people in the program as in the case of SB 93):

SB 91 - BUDGET TRAILER BILL: ADULT DAY HEALTH CARE: CENTERS: MEDI-CAL CERTIFICATION

AUTHOR: Senate Budget and Fiscal Review Committee
CDCAN SUMMARY:  Contains necessary technical corrections as a result of the elimination of Adult Day Health Care as a Medi-Cal "optional benefit" the budget trailer bill, AB 97 (Chapter 3, Statutes of 2011 as follows:

• Delinks licensure from Medi-Cal certification for Adult Day Health Care centers,  Current State law requires Adult Day Health Care Centers to be certified Medi-Cal providers as a condition of State licensure. This bill delinks certification and licensure.
• Permits Adult Day Health Care centers  to operate "adult day programs," for individuals  who do not require on-site medical care, without obtaining an  additional social services license and specifies that:
  • The Adult Day Health Care center is to provide notice to the State
  • An on-site inspection will not be required; and
  • The local fire authority shall determine capacity limits. 
• Adds an appropriation allowing this bill to take effect immediately upon enactment.

PREVIOUS ACTION 07/14/2011: PASSED Assembly by vote of 51 to 8. In State Senate. Heard in Senate Budget and Fiscal Review Committee and referred to Senate floor.  PASSED State Senate by vote of  24 to 14.
PREVIOUS ACTION 07/19/2011: Sent to the Governor at 1:00 PM.
LATEST ACTION 07/25/2011: SIGNED by the Governor.
EFFECTIVE DATE:  Effective upon approval of the Governor (or as provided for in the bill)
CDCAN COMMENT:  This 8 page bill does not address or resolve the current problems of transitioning the existing Adult Day Health Care program into a new model under a yet to be developed (and submitted) federal Medicaid waiver.
LATEST VERSION OF BILL - HTML: http://www.leginfo.ca.gov/pub/11-12/bill/sen/sb_0051-0100/sb_91_bill_20110715_enrolled.html
LATEST VERSION OF BILL - PDF:  http://www.leginfo.ca.gov/pub/11-12/bill/sen/sb_0051-0100/sb_91_bill_20110715_enrolled.pdf
PRIORITY: VERY HIGH

SB 93 - BUDGET TRAILER BILL: HEALTH & HUMAN SERVICES: IHSS TRIGGER CUT  ("CLEAN-UP" BILL TO SB 73)

AUTHOR: Senate Budget and Fiscal Review Committee
CDCAN SUMMARY:  Makes technical change or correction to SB 73 provisions dealing with In-Home Supportive Services (IHSS) "trigger cuts".  The bill would make a technical correction to correctly  identify the component, subdivision (b), of Control Section 3.94 of the Budget Act of 2011 that would cause the reduction in In-Home Supportive Services to be implemented under the triggers included in the budget package, and adds an appropriation allowing this bill to take effect immediately upon enactment.
PREVIOUS ACTION 07/14/2011:  In State Senate. Heard in Senate Budget and Fiscal Review Committee and referred to Senate floor.  PASSED State Senate by vote of 24 to 14. (PASSED Assembly by vote of 48 to 27 on 07/11/2011).
LATEST ACTION 07/19/2011: Sent to the Governor at 1:00 PM. (no reported action as of 7/25/2011)
NEXT STEPS: Governor has 12 calendar days to sign or veto the bill (or allow it to become law without his signature.
CDCAN COMMENT:  This bill makes only a technical change to the provisions related to the previously approved "trigger cuts" to IHSS.  Clarifies that the IHSS "trigger cuts" are "tier 1" trigger cuts. While this bill does not focus on Adult Day Health Care, In-Home Supportive Services does impact many of the over 34,000 people in the Adult Day Health Care program who also are in the IHSS program.     
LINK TO LATEST VERSION OF BILL - HTML   http://www.leginfo.ca.gov/pub/11-12/bill/sen/sb_0051-0100/sb_93_bill_20110715_enrolled.html
LINK TO LATEST VERSION OF BILL - PDF:  http://www.leginfo.ca.gov/pub/11-12/bill/sen/sb_0051-0100/sb_93_bill_20110715_enrolled.pdf
PRIORITY:  HIGH

AB 96 - ADULT DAY HEALTH CARE: KEEPING ADULTS FREE FROM INSTITUTIONS ("KAFI")

AUTHOR: Assemblymember Bob Blumenfield (Democrat - Van Nuys)
CDCAN SUMMARY: Would authorize the creation of a new model of Adult Day Health Care (ADHC) program, under a federal Medicaid Waiver, as follows:

• States legislative intent  to create the "Keeping Adults Free from Institutions" (KAFI) program, to provide community services that prevent institutionalization; that  the KAFI program allow recipients of Adult Day Health Care  be given  priority in transitioning; and, that the new program be established as quickly as possible.
• Require the Department of Health Care Services to submit an application for a federal waiver, to implement the KAFI program, by September 1, 2011;
• Require the KAFI program to utilize licensed adult day health centers to provide medical, behavioral health, and social services to Medi-Cal recipients who are at high risk of institutionalization;
• Authorize the Department of Health Care Services to implement the KAFI program by way of a state plan amendment to the State's Medicaid State Plan, federal waiver, or both; and,
• Require federal approval, federal financial  participation (federal matching funds) and an appropriation in the Annual Budget Act for implementation of KAFI.

PREVIOUS ACTION 06/15/2011: PASSED Assembly by vote of 54 to 24.  (PASSED State Senate by vote of 24 to 15 on 06/10/2011)
PREVIOUS ACTION 07/14/2011: Sent to Governor at 3:15 PM.
LATEST ACTION 07/25/2011: VETOED by Governor
NEXT STEPS:  Legislature could attempt to over-ride the Governor's veto - which requires 2/3rds vote in both houses - a highly unlikely event.     
CDCAN COMMENT:  This veto of AB 96 signals - as some advocates feared - a position by the Brown Administration not to continue Adult Day Health Care in any form.  See below for full text of this bill - and also attached as a pdf file)
LATEST VERSION OF BILL - HTML: http://www.leginfo.ca.gov/pub/11-12/bill/asm/ab_0051-0100/ab_96_bill_20110714_enrolled.html
LATEST VERSION OF BILL - PDF:  http://www.leginfo.ca.gov/pub/11-12/bill/asm/ab_0051-0100/ab_96_bill_20110714_enrolled.pdf
PRIORITY: VERY HIGH

TEXT OF AB 96 - "KEEPING ADULTS FREE FROM INSTITUTIONALIZATION"

This is the version of AB 96 that was passed by the Assembly and State Senate in mid-June and then sent to the Governor on July 14th, which he vetoed July 25, 2011.

The appropriation of $1,000 in State general fund in this budget trailer bill (and all others) is to make it officially a budget related bill that falls under the requirements of Proposition 25 (allowing for passage by a majority vote - and because it is a budget trailer bill connected to the main budget bill, to take effect immediately):

BILL NUMBER: AB 96 ENROLLED
BILL TEXT

PASSED THE SENATE  JUNE 10, 2011
PASSED THE ASSEMBLY  JUNE 15, 2011
AMENDED IN SENATE  JUNE 8, 2011
AMENDED IN SENATE  APRIL 6, 2011
AMENDED IN SENATE  MARCH 14, 2011

INTRODUCED BY   Committee on Budget

                        JANUARY 10, 2011

   An act to add Chapter 8.6 (commencing with Section 14515) to Part 3 of Division 9 of the Welfare and Institutions Code, relating to Medi-Cal, making an appropriation therefor, to take effect immediately, bill related to the budget.

LEGISLATIVE COUNSEL'S DIGEST

   AB 96, Committee on Budget.  Keeping Adults Free from Institutions program.

   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 provide that it is the intent of the Legislature to create the Keeping Adults Free from Institutions (KAFI) program, which shall be a new program to provide services in the community that are designed to prevent institutionalization, and that the KAFI program be established as quickly as possible to minimize any disruption in services resulting from the elimination of ADHC as a Medi-Cal benefit. This bill would prohibit the KAFI program from being implemented until federal approval is obtained, and provide that the KAFI program is to be implemented only to the extent that federal financial participation is available. This bill would require the department to submit, on or before September 1, 2011, an application to the federal Centers for Medicare and Medicaid Services (CMS) to implement the KAFI program. This bill would require the KAFI program to utilize licensed adult day health centers to provide a well-defined scope of specified services for Medi-Cal beneficiaries who have been assessed to be at significant risk of institutionalization. This bill would require the department to consult with interested stakeholders and the Legislature in developing the application to CMS and would authorize the department to implement these provisions by means of a state plan amendment or federal waiver, or combination thereof.

   This bill would appropriate $1,000 to the department for
administration.

   This bill would declare that it is to take effect immediately as a bill providing for appropriations related to the Budget Bill.

   Appropriation: yes.

THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:

  SECTION 1.  Chapter 8.6 (commencing with Section 14515) is added to Part 3 of Division 9 of the Welfare and Institutions Code, to read:

      CHAPTER 8.6.  KEEPING ADULTS FREE FROM INSTITUTIONS

   14515.  (a) It is the intent of the Legislature to create the Keeping Adults Free from Institutions (KAFI) program, which shall be a new program to provide services in the community that are designed to prevent institutionalization.

   (b) It is the intent of the Legislature that the KAFI program allow recipients of adult day health care pursuant to Chapter 8.7 (commencing with Section 14520), who are at the greatest risk of institutionalization, to be given immediate priority to transition to the new program.

   (c) It is the intent of the Legislature that the KAFI program be established as quickly as possible to minimize any disruption in services resulting from the elimination of adult day health care as a Medi-Cal optional benefit.

   14516.  (a) On or before September 1, 2011, the department shall submit an application to the federal Centers for Medicare and Medicaid Services (CMS) to implement the Keeping Adults Free from Institutions (KAFI) program. This program shall utilize licensed adult day health centers, as defined in subdivision (b) of Section 1570.7 of the Health and Safety Code, to provide a well-defined scope of medical, behavioral health, and social services for Medi-Cal beneficiaries who have been assessed using evidence-based risk factors to be at significant risk of institutionalization, including admission or readmission to an institutional setting in the absence of community-based services. The KAFI program shall achieve all of the following:

   (1) Promote person-centered care planning.

   (2) Work in coordination with existing state programs, including other federal waivers and pilot projects that have, as one of their goals, to delay or prevent inappropriate or personally undesirable institutionalization.

   (3) Emphasize partnership between the participant, the participant's family, the personal health care provider, and other community care providers in working toward maintaining personal independence.

   (4) Facilitate the beneficiary's choice to the extent feasible.

   (b) The department may implement this chapter by means of a state plan amendment or federal waiver, or a combination thereof, as necessary to accomplish the intent of this chapter. The department shall seek to maximize the availability of federal financial participation for implementation of this chapter under the terms of any existing waivers or state plan provisions, through amendment of any existing waivers or state plan provisions, or by means of a new waiver or state plan amendment, or any combination thereof.

   (c) In developing the application to CMS pursuant to this section, the department shall consult with interested stakeholders and the Legislature.

   (d) Notwithstanding 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 chapter through all-county letters or similar instructions, without taking regulatory action. Prior to issuing any letter or similar instruction authorized pursuant to this subdivision, the department shall notify and consult with stakeholders, including advocates, providers, and beneficiaries, in implementing, interpreting, or making specific this chapter.

   14516.5.  (a) The director shall seek any necessary federal approvals for the implementation of the KAFI program. The KAFI program shall not be implemented until federal approval is obtained and shall be implemented only to the extent that federal financial participation is available.

   (b) Implementation of the KAFI program is subject to an appropriation in the annual Budget Act.

  SEC. 2.  The sum of one thousand dollars ($1,000) is hereby appropriated from the General Fund to the State Department of Health Care Services for administration.

  SEC. 3.  This act is a bill providing for appropriations related to the Budget Bill within the meaning of subdivision (e) of Section 12 of Article IV of the California Constitution, has been identified as related to the budget in the Budget Bill, and shall take effect immediately.

File Attachments: 

2011-07-25 - AB 96 Veto Message (Adult Day Health Care, Keeping Adults Free from Institutions).pdf (528.06 KB)