CDCAN REPORT #191-2011: Details of Adult Day Health Care Medi-Cal benefit settlement

DETAILS OF ADULT DAY HEALTH CARE MEDI-CAL BENEFIT SETTLEMENT AGREEMENT

Agreement Reached November 17th Delays Elimination of Medi-Cal Benefit Until February 29, 2012 - New Medi-Cal Program To Be Created

SACRAMENTO, CA (CDCAN)  [Last updated 11/18/2011 06:55 AM] -  As reported yesterday, the scheduled elimination date of Adult Day Health Care as a Medi-Cal "optional" benefit will be delayed from December 1, 2011 to February 29, 2012 under a settlement announced Thursday (November 17) of a federal lawsuit between recipients in the program and the California Department of Health Care Services under the Brown Administration.   The settlement agreement was hailed as a major victory by advocates for people with disabilities and seniors across the State, with the legal team headed by Disability Rights California (DRC) being widely praised for its work.

Still, some advocates and Adult Day Health Care program providers, while strongly praising the settlement note that many providers have been forced to close, laying off hundreds of workers - and it is not clear yet how many of the existing program providers - and their workers - will be able to survive under the new program that will be established under the settlement agreement. Others still fear the impact of State Budget "trigger cuts" on critical services and supports and a new round of State Budget cuts still to come when Governor Brown releases his new 2012-2013 State Budget in January - with massive spending cuts likely in order to close what is now projected to be a nearly $13 billion budget shortfall.   But almost all advocates, providers and program participants and policymakers welcomed the settlement agreement as an end to the uncertainty and confusion and turmoil that began since last March when the Legislature approved Governor Brown's proposal to eliminate Adult Day Health Care as a Medi-Cal benefit.

Under the terms of the settlement:

• The existing Adult Day Health Care Medi-Cal optional benefit will be phased out and replaced on March 1, 2012 with a new program called "Community-Based Adult Services" (CBAS) that will provide necessary medical and social services to those with the greatest need.
• The Department of Health Care Services, the state agency that oversees statewide the Medi-Cal program, estimated that roughly half of current Adult Day Health Care recipients will qualify for the new program.
• Eligibility to participate in the new program will be determined by state medical professionals on the basis of medical need, and the benefits provided will be coordinated with Medi-Cal managed care plans.
• No enrollment cap and services will be provided at no cost to Medi-Cal recipients.
• The new Medi-Cal program will be provided through Medi-Cal managed care plans in most parts of the state. In counties where Medi-Cal managed care is not available, and for people who are not eligible for managed care, the new program will be a "fee-for-service" Medi-Cal benefit.
• Notification of the terms of the settlement agreement will be sent out to all people in the Adult Day Health Care program as a Medi-Cal benefit in mid-December.  In early 2012, the federal district court will hold a “Fairness Hearing” which will give all persons in Adult Day Health Care as a Medi-Cal benefit ("class" members of the lawsuit) the opportunity to give their input on the terms of the settlement agreement.
• The federal district court judge must approve a final settlement agreement before the Adult Day Health Care Medi-Cal benefit is eliminated.
• It is not clear if additional legislation would be needed to help implement the provisions of the settlement agreement [CDCAN will issue a later report with more details on the settlement agreement].  The settlement does not impact the 10% Medi-Cal rate reduction to many Medi-Cal providers including Adult Day Health centers - though that reduction has been delayed until after a December 19th federal court hearing in Los Angeles on a separate lawsuit that was filed by the Medicaid Defense Fund to top those rate cuts.

Adult Day Health Care Is A Medi-Cal Benefit

• Adult Day Health Care is a Medi-Cal benefit that provides community-based program for eligible people with disabilities and low-income elderly designed to support those individuals who live at home or in licensed residential care facilities to avoid unnecessary hospitalization or placement in nursing homes or other institutions.
• Adult Day Health Care centers provide nursing services, personal care services, social services, therapy, case management, medication management, meals and transportation to participants from one to five days per week, depending on their assessed needs.

Lawsuit Filed By Disability Rights California On Behalf of People with Disabilities and Seniors in the Program

• In January 2010 Governor Brown proposed the elimination of Adult Day Health Care as a Medi-Cal benefit.
• In  March, 2011, the Legislature approved that proposal, with some changes.
• In June of 2011, seven Adult Day Health Care participants filed a motion for a Preliminary Injunction in federal court on behalf of themselves and the 35,000 other program participants across the state, to stop the elimination of the Medi-Cal benefit unless and until adequate replacement services were in place, asserting that the elimination of the benefit would place them at risk of unnecessary institutionalization.
• The action was brought against the Department of Health Care Services under the Brown Administration and sought declaratory and injunctive relief for violation of the Due Process Clause of the Fourteenth Amendment to the U.S. Constitution; Title XIX of the Social Security Act, (the Medicaid Act), (42 U.S.C. §§ 1396a-1396w-5); Title II of the Americans with Disabilities Act of 1990 (ADA), (42 U.S.C. § 12132); Section 504 of the Rehabilitation Act of 1973 (Section 504), (29 U.S.C. § 794); and California Government Code Section 11139.
• The initial Adult Day Health Care elimination date as a Medi-Cal benefit was scheduled for September 1, which was moved by the State to December 1, with a Court hearing scheduled for November 17, 2011.  The Parties reached settlement prior to that Court hearing date.
• The Settlement Agreement resolves the entire Darling v. Douglas lawsuit, which begun over two years ago. The case was initially filed on August 18, 2009, when several elderly individuals with disabilities filed a class action lawsuit to stop cuts to Adult Day Health Care services enacted by the legislature pursuant to AB 4x-5, one of the 2009-2010 State Budget bills.
• Note: The original case was filed as Lillie Brantley et. al v. David Maxwell-Jolly but upon the passing of Mrs. Brantley, the case name was changed to Harry Cota et. al v. Maxwell-Jolly. The case name has changed again to Esther Darling v. Toby Douglas, due to the passing of Mr. Cota and Mr. Douglas’ replacement of David Maxwell-Jolly as Director of the Department of Health Care Services.

Who Is Impacted

• The settlement - and the delay in the elimination - impacts over 35,000 people with disabilities - including those with developmental disabilities and low income seniors in the program, over 7,000 people who are workers and staff in the Adult Day Health Care program and the over 300 centers across the State.
• Many of the centers and thousands of workers faced imminent closure and loss of jobs and benefits in a matter of weeks before the settlement was reached.

Organizations Representing Those Filing Lawsuit

Those filing the lawsuit are represented by Disability Rights California (DRC), the National Senior Citizens Law Center, the National Health Law Program, AARP Foundation Litigation, and the firm of Morrison & Foerster LLP (pro bono counsel - meaning they are providing their services without charges)

The United States Department of Justice participated in the lawsuit, by filing an amicus (friend of the court) brief in the appeal, and filing two Statements of Interest.

CDCAN SUMMARY OF SETTLEMENT AGREEMENT

The following is a CDCAN summary of the major details of the summary agreement, based on information released publicly by Disability Rights California.  That document is attached to this CDCAN Report as a word document titled  "2011-11-17 - Disability Rights California - Final ADHC Settlement Summary.doc"  [Webmaster note:  I have created a PDF version of the document which should be readable by screen readers.]

WHAT IS ''COMMUNITY-BASED ADULT SERVICES"?

• By March 1, 2012, the Settlement Agreement transitions the Adult Day Health Care Medi-Cal benefit from a Medi-Cal state plan optional benefit into a new Medi-Cal service called "Community Based Adult Services" or “CBAS” – which will be provided through under the State's Medicaid Section 1115 Waiver program.
• Under the settlement agreement, the new "Community Based Adult Services" Or “CBAS” will be substantially similar to existing Adult Day Health Care services.
• The new program will be an outpatient, facility based service program that delivers skilled nursing care, social services, therapies, personal care, family/caregiver training and support, meals and transportation to eligible Medi-Cal beneficiaries.
• The "Community-Based Adult Services" program will be available at those Adult Day Health Care centers that are approved by the Department of Health Care Services as a Community-Based Adult Services provider.

WHEN WILL THE MEDI-CAL ADULT DAY HEALTH CARE BENEFIT END AND THE NEW COMMUNITY-BASED ADULT SERVICES PROGRAM START?

• The new Community-Based Adult Services program will begin on March 1, 2012, the day after the Adult Day Health Care Medi-Cal benefit will end on February 29, 2012.
• The elimination date for Adult Day Health Care as a Medi-Cal benefit was moved to February 29, 2012 to allow time for a "seamless transition" under the settlement agreement for people receiving Adult Day Health Care services as a Medi-Cal benefit  to the new Community-Based Adult Services Medi-Cal program on March 1, 2012  or, if assessed as not eligible for that, to another appropriate Medi-Cal program or service.

HOW LONG WILL NEW PROGRAM LAST?

• Under the settlement agreement, there is no time limit for this program, nor is there an enrollment cap.
• Persons placed in the new Community-Based Adult Services program will be able to continue to receive those services as long as they are determined to need them.

IS THERE AN ENROLLMENT CAP FOR THE NEW PROGRAM?

• Under the settlement agreement there is no enrollment cap.

HOW WILL PEOPLE IN THE PROGRAM NOW BE NOTIFIED?

• In writing.  There will be a notice regarding the settlement agreement to all persons in Adult Day Health Care as a Medi-Cal benefit in mid-December. At some point following that, a notice from the Department of Health Care Services will be sent out to all participants regarding the assessments that will need to be done to determine eligibility for the new Community-Based Adult Services program or to other appropriate Medi-Cal programs and services.
• It is not clear if or how other participants in Adult Day Health Care centers - who are there as 'private pay" participants or referred there by another entity (such as a regional center) and not by Medi-Cal will be notified of any of the upcoming program changes.

COSTS FOR PARTICIPANTS IN NEW PROGRAM

• There will be no costs charged for services to those persons who are Medi-Cal recipients who are assessed as eligible for the new Community-Based Adult Services program.
• Persons who pay a provider for their services for existing Adult Day Health Care Program services ("private pay") can choose to continue with the program as a "private pay" Adult Day Health Care program participant. [CDCAN Note: It is the Adult Day Health Care Medi-Cal benefit that is being eliminated by the State - meaning the State will no longer pay for that benefit after February 29, 2012 under the settlement agreement.  However existing Adult Day Health Care providers - whether they are approved as a Community-Based Adult Services provider or not - can still provide services to people who are "private-pay" participants or are referred there and paid by another entity (such as regional centers who refer and place a person with developmental disabilities to such a center) ]

ASSESSMENT PROCESS FOR RECIPIENTS

• Not everyone in the existing Adult Day Health Care program will be eligible for the new Community-Based Adult Services program - and those who are not will be referred to other appropriate long term services and supports.
• Under the settlement agreement, the transition process and the delay of the effective date (now February 29, 2012) of the elimination of the existing Adult Day Health Center Medi-Cal benefit program is meant to ensure that all current program participants, who are eligible for the new Community-Based Adult Services program will have a seamless transition from the Adult Day Health Care program into the new program.
• Beginning in December 2011 through February 2012, current Adult Day Health Care participants will be assessed for eligibility for the new Community-Based Adult Services program by the Department of Health Care Services in collaboration with Adult day Health Care program providers.
• Individuals will be notified of the results of their assessment or evaluation in writing and will be given information about how to enroll in the new program.
• Participants will be reassessed periodically by their Medi-Cal  managed care plans, approximately every six (6) months.

ELIGIBILITY FOR NEW PROGRAM

• The Department of Health Care Services estimated yesterday (November 17)  that about half of the current number of people in the existing Adult Day Health Care Medi-Cal benefit program would likely meet the eligibility requirements for the new Community-Based Adult Services Medi-Cal program.  Current enrollment in Adult Day Health Care program is about 35,000 people with disabilities and seniors provided now by some 300 or so providers across the State who employ about 6,000 to 7,000 workers and staff. [the exact current numbers of providers and workers is not certain, since recent reports indicate that about 23 providers - and some unknown number of their workers - have closed down since the State began implementation of the elimination of Adult Day Health Care as a Medi-Cal benefit.  If the Department of Health Care Services estimate is accurate, based on the number of current 35,000 participants, then about 17,000 of those people would likely be eligible for the new Community-Based Adult Services program as a Medi-Cal benefit.  [CDCAN Note: it is important to remember that there are a number of people in the existing Adult Day Health Care program who are not Medi-Cal recipients and privately pay for those services or who were referred to the program by another entity other than Medi-Cal (such as persons with developmental disabilities referred there specifically by a regional center and not by Medi-Cal).
• People in the current Adult Day Health Care program who wish to receive the new Community-Based Adult Services are eligible if they meet Nursing Facility Level of Care A (NF-A), or have a cognitive impairment, including moderate to severe Alzheimer’s Disease or other dementia, a brain injury, chronic mental illness, or are developmentally disabled, and meet certain medical necessity and eligibility criteria for the existing Adult Day Health Care Medi-Cal benefit.
• Individuals who are assessed as eligible for the new Community-Based Adult Services program and live in counties with Medi-Cal managed care plans will have to enroll into Medi-Cal managed care to receive services under the new program, unless they are already enrolled.
• For persons who are also Medicare recipients, enrollment into a Medi-Cal managed care will NOT effect their choice of a Medicare physicians.
• Persons in counties with no Medi-Cal managed care plan will receive Community-Based Adult Services as a Medi-Cal "fee for service" program if they are assessed as eligible for the program.
• Individuals in County Operated Health Systems (COHS) will receive Community-Based Adult Services through their County Operated Health System, if they are assessed as eligible.
• Persons who are not currently in an Adult Day Health Care program, but who become eligible during the term of the Settlement Agreement, can apply for the new Community-Based Adult Services program through the Department of Health Care Services until February 29, 2012. After March 1, 2012 they can apply for the new program through their Medi-Cal Managed Care plan. If Medi-Cal Managed Care is not available in their county, or if they are not eligible for Medi-Cal Managed Care, they can apply for the new Community-Based Adult Services program through the Department of Health Care Services.
• Persons who are not assessed as not eligible for the new Community-Based Adult Services program will be able to get "Enhanced Case Management", which includes person-centered planning and complex case management, through either their Medi-Cal managed care plan or the Department of Health Care Service’s contractor for those specific services (APS Healthcare Inc.), to assist them to transition to other community-based long-term care services when the Adult Day Health Care Medi-Cal benefit is eliminated.
• Any person not satisfied with the results of their assessment or services provided can file for fair hearing to challenge the decision.

CHANGES FOR PROVIDERS IN THE NEW PROGRAM

• Eventually, approximately July 1, 2012, the Department of Health Care Services will convert the new Community-Based Adult Services program from a Medi-Cal "fee-for-service" benefit to a Medi-Cal managed care benefit.
• Current Adult Day Health Care center providers will have the opportunity to apply to become a Community-Based Adult Services provider and continue operating their programs if they are approved by the Department of Health Care Services, under the settlement agreement.
• The specific criteria of a provider to be approved by the Department of Health Care Services has not yet been made available to the public.
• In counties where a Medi-Cal managed care plan is available, the Community-Based Adult Services providers must provide services through a contract with that Medi-Cal managed care plan once the Community-Based Adult Services program becomes a managed care benefit (as mentioned, approximately July 1, 2012).  In those counties where a Medi-Cal managed care plan is not available, the Department of Health Care Services will continue to provide the Community-Based Adult Services program as a Medi-Cal "fee-for-service" program.

COMMUNITY-BASED ADULT SERVICES PROGRAM PROVIDER REIMBURSEMENT

• The reimbursement or rate of payment for the new Community-Based Adult Services program either under Medi-Cal managed care plans or as a Medi-Cal "fee-for-service" program in counties where plans do not exist has not yet been released or announced publicly.
• It is not known - or at least not announced publicly as part of the settlement agreement - if the new Community-Based Adult Services program -  in those areas where it would be a Medi-Cal "fee-for-service" program - would be exempt from a future Medi-Cal provider rate reduction (the new program currently is not impacted by any Medi-Cal "fee-for-service' provider rate cut since it did not exist when the 2011-2012 State Budget was passed and signed into law last June. Medi-Cal managed care plans will face a reduction and it is not certain yet - at least not from the information released publicly - how the new Community-Based Adult Services program would be impacted under those plans by the reduction.)

File Attachments: 

2011-11-17 - Disability Rights California - Final ADHC Settlement Summary.doc (42 KB)

2011-11-17 - Disability Rights California - Final ADHC Settlement Summary.pdf (121.67 KB)