CDCAN REPORT #013-2012: Federal court gives final approval of Medi-Cal adult health care lawsuit settlement

Federal Court Gives Final Approval of Medi-Cal Adult Day Health Care Lawsuit Settlement

Implementation of New Replacement "Community-Based Adult Services" Program As A Medi-Cal Managed Care Benefit To Take Effect March 1, 2012 Underway

SACRAMENTO, CA (CDCAN) [Last updated 01/24/2012 03:00 PM] - A US district court judge gave final approval of a settlement of a federal lawsuit that requires the Brown Administration to create a new version of adult day health care, called "Community-Based Adult Services" under Medi-Cal managed health care that will replace the existing Adult Day Health Care Medi-Cal benefit effective March 1, 2012.  The existing Adult Day Health Care Medi-Cal benefit will be eliminated effective February 29, 2012.

The settlement was reached and originally announced on November 17, 2011 with those filing the lawsuit (seven persons with disabilities and seniors representing over 35,000 people with disabilities and seniors currently receiving the Medi-Cal benefit provided by over 300 Adult Day Health Care Centers across the State) and the Department of Health Care Services, the state agency that oversees the Medicaid (called "Medi-Cal") program.  US District Court Judge Saundra Brown gave preliminary approval of the settlement on December 14th and final approval today and said the settlement was "fair, adequate and reasonable" and a "win-win" for both sides.

Both the Department of Health Care Services and advocates for people with disabilities and seniors praised the settlement, though some advocates and stakeholders remain concerned and worried because the new replacement program will only cover an estimated 15,000 of the 35,000 persons currently receiving services under the Adult Day Health Care Medi-Cal and uncertainity still exists on what other services those persons will end up receiving.  Steps have been taken over the past two months to implement the settlement including the new replacement program and other transition efforts, including In-Home Supportive Services, once the Adult Day Health Care Medi-Cal benefit is eliminated.

Original Lead Plaintiff In Case Harry Cota Died Last March

Ironically, the March 1, 2012 effective date of the new replacement program for Adult Day Health Care as a Medi-Cal benefit will occur almost exactly a year after the death of the previous lead plaintiff in the original lawsuit.  Harry Cota, age 61 [Photo above left] who was the lead plaintiff in the Adult Day Health Care lawsuit - "Cota et al v. Maxwell-Jolly" (now "Darling v. Douglas") that blocked the 2009 reductions to Adult Day Health Care as violations under the federal Americans with Disabilities Act (ADA), died March 7, 2011, after a battle with cancer.

Cota, in a letter to Governor Brown just days before his death last March, pleaded that Adult Day Health Care be spared from elimination writing that "My life has been made so much better because of [Adult Day Health Care], and so have the lives of thousands and thousands of Californians. Please don't cut this program."  Despite his pleas - and the protests and opposition of hundreds of others, the Legislature passed the Governor's proposal on March 16th, which the Governor signed into law on March 24, 2011.

At the time of his death last year, friends said that Cota considered his fellow participants, and the staff at the Adult Day Health Care program he attended for eight years, “as part of his family,” and a big reason for his passion to save it.

Until the end of his life, including that letter sent to the Governor just days before his death, Cota remained strongly committed to his work in helping others with disabilities, and hoped that the Adult Day Health Care program would continue, even if his own life did not.  A year later, with the lawsuit settlement given final approval today (January 24), friends view his efforts to see Adult Day Health Care continued as a necessary critical service - and right - to live in the community, as a part of his enduring legacy.

[CDCAN Note:  Harry Cota will always be missed, while his life and work will always be honored and remembered, especially as the new "Community-Based Adult Services" program becomes effective, almost exactly a year after his death. It is ironic and sad that his death came just 9 days before the Legislature approved elimination of the program he loved so much - and that the lawsuit he was a part of almost exactly a year later will save much of those services - and perhaps many, many lives.  The real lesson of his life – and his work – is for all of us to remember that the federal and state Constitution, our laws and any program is always about a human life. – Marty Omoto]

Americans With Disabilities Act Cited In Lawsuit

• The lawsuit argued that eliminating the Adult Day Health Care Medi-Cal benefit, without appropriate replacement services, would violate the federal Americans with Disabilities Act by placing thousands of program participants at risk of unnecessary institutionalization, hospitalization, injury or death.
• The US District Court previously issued two court orders - called preliminary injunctions - that stopped other previous reductions the Adult Day Health Care program, and was set to hold a hearing on a third court order to block the elimination of Adult Day Health Care when the case settled on November 17, 2011.
• Under the settlement as approved today, the State’s appeal of the second preliminary injunction currently pending before the US 9th Circuit Court of Appeals will be withdrawn pursuant to the settlement (that injunction issued February 24, 2010, blocked the State from implementing new eligibility criteria which would have permanently eliminated Adult Day Health Care services for about 15,000 people including those with developmental disabilities. Since the settlement includes agreement that Adult Day Health as a Medi-Cal benefit will be eliminated effective February 29, 2012 - and replaced by a new program that will serve only about half of the 35,000 persons with disabilities and seniors currently receiving Adult Day Health Care services, the issue is no longer relevant.
• The US Department of Justice participated in the lawsuit, by filing an amicus (friend of the court) brief in the appeal, filing two Statements of Interest, and supporting the settlement.

Adult Day Health Care Elimination Was Part of 2011-2012 State Budget

As part of the 2011-2012 State Budget, Governor Brown proposed last January - and the Legislature approved March 16, 2011 last year, the elimination of Adult Day Health Care as a Medi-Cal "optional benefit" in a budget related bill, AB 97 (Chapter 3, Statutes of 2011). That bill was signed into law by Governor Brown on March 24, 2011.

The bill authorized the Department of Health Care Services to set the effective date of the elimination of Adult Day Health Care as a Medi-Cal benefit for September 1, 2011, which was later extended to December 1, 2011 by the department director, announced in a letter to the Legislature on July 14th.

The settlement reached on November 17th (that the judge gave final approval today, January 24, 2012) resulted in delaying the elimination of the benefit until February 29, 2012 and starting up the new replacement program the next day on March 1, 2012.

New Replacement Program Will Be A Medi-Cal Managed Care Benefit

• As previously reported in November and December, the settlement would create a new community-based program for people with disabilities and seniors who are at risk of institutionalization called "Community-Based Adult Services" (CBSAS).
• The Community-Based Adult Services will be offered under Medi-Cal managed care plans in most parts of the State.  The new program will be part of the State's Medicaid Section 1115 Waiver, and will not cap enrollment, meaning that there is no limit on how many eligible persons that the new program can serve.
• The Department of Health Care Services and the Department of Aging have been working with stakeholders and advocates, including Adult Day Health Care center providers, in the steps that will lead to the elimination of the existing Adult Day Health Care Medi-Cal "optional benefit" effective February 29, 2012 and phasing in for March 1st implementation, the new replacement "Community-Based Adult Services" program.  [Note: Medi-Cal "optional benefits" are those benefits a state may provide - but are not required to do so by the federal government - as part of their State Medicaid services.  California previously eliminated 9 other "optional benefits in 2009 including adult dental services (though maintained those benefits for children and for those persons residing in certain health facilities).  A separate lawsuit filed in federal court failed to stop the elimination of those other benefits]
• The new program would be similar to Adult Day Health Care and offer center-based skilled health and nursing care, therapies, transportation and other services to eligible people with disabilities and low income seniors.
• The Department of Health Care Services in November estimated that about 15,000 of the 35,000 persons currently receiving Adult Day Health Care services will likely be eligible for the new program.
• Persons with developmental disabilities who are in the current Adult Day Health Care program referred there by the 21 non-profit regional centers under the Department of Developmental Services (and not referred there by Medi-Cal) will be automatically deemed eligible for the new program (it is not clear if that is the case for persons with developmental disabilities who were placed in the Adult Day Health Care program through Medi-Cal and not regional centers).
• The remaining 15,000 or so other Adult Day Health Care recipients who will likely not be eligible for the new "Community-Based Adult Services" program will, after the Medi-Cal benefit is eliminated February 29th, instead will receive what the settlement refers to as "enhanced case management" to assist them to transition smoothly to other long-term care services in the community, including In-Home Supportive Services (Many people receiving Adult Day Health Care as a Medi-Cal benefit now already receive services under IHSS, and those who are not eligible for the new replacement "Community-Based Adult Services" may be eligible for more hours).
• For more information about Adult Day Health Care and the new replacement program go to the Department of Health Care Services website page at:  http://www.dhcs.ca.gov/services/medi-cal/Pages/ADHC/ADHC.aspx

Not Clear Yet How Many Adult Day Health Care Centers Will Survive

• Under the settlement, as previously reported in November, many - though not all - of the current Adult Day Health Care centers will be able to provide the new Community-Based Adult Services.  The Department of Health Care Services and other state agencies have been working with providers for the past several months, including some training sessions and webinars, dealing with implementation of - and participation in - the new program.
• It is not clear how many of the over 300 or so Adult Day Health Care centers who employ over 7,000 staff and workers across the State will be able to remain open under the new program.
• At least 18 centers have closed their doors in 2011 since the elimination of Adult Day Health Care as a Medi-Cal optional benefit was passed and enacted last March as part of the 2011-2012 State Budget.
• The original budget related bill - and the settlement itself, while eliminating Adult Day Health Care as a Medi-Cal benefit, does not directly eliminate the over 300 remaining Adult Day Health Care center providers, many who can transition into providing the new replacement service.  But with 15,000 or so persons who the Department of Health Care Services estimates will not be eligible for the new replacement "Community-Based Adult Services" (and will be transitioned into other community-based serices including In-Home Supportive Services), providers face, overall, a statewide loss of 50% of their reimbursement revenues - though the specific loss will vary from provider to provider depending on the eligiblity of the persons.

Lawsuit Filed on Behalf of Over 35,000 People With Disabilities and Seniors

The lawsuit, Darling et al v. Toby Douglas (C:09-03798 SBA) was originally filed over two years ago by Disability Rights California and other disability and senior advocacy organizations on behalf of 7 named recipients who represent the over 35,000 people with disabilities and seniors who use Medi-Cal Adult Day Health Care benefit . Originally the lawsuit was filed to block a series of other previous reductions made to the Adult Day Health Care program.  ["Darling" is the named of one of the 7 persons with disabilities and seniors in the existing Adult Day Health Care Medi-Cal program and "Toby Douglas" is the name of the director of the Department of Health Care Services, the state agency that oversees statewide the Medicaid program (called "Medi-Cal" in California).  The name of the lead plaintiff in the case changed twice before, due to the deaths of the two persons - Lillie Brantley and Harry Cota, who were lead plaintiffs while the case was still being fought]

The lawsuit was filed 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).

“There are a lot of people who really need this program; I have fought to stay out of a nursing home and have been able to with ADHC,” said Esther Darling, age 74, the lead plaintiff in the lawsuit following the action by the judge today.

Elissa Gershon, Senior Attorney for Disability Rights California(DRC) following the Judge's final approval today, said “We are proud to be part of this settlement that guarantees that Esther Darling and tens of thousands like her will continue to receive the critical services they need to continue to live in their own homes and communities.”

Morrison & Foerster partner Ken Kuwayti noted, "This settlement demonstrates that even in these challenging budget times, our State has recognized the importance of maintaining this uniquely beneficial and cost-effective program."