COMMUNITY BASED ADULT SERVICES (CBAS): APPEALING A DENIAL OF ELIGIBILITY

1. COMMUNITY BASED ADULT SERVICES (CBAS):APPEALING A DENIAL OF ELIGIBILITY Elissa Gershon, Senior Attorney Disability Rights California Dawn Myers Purkey, Program Manager Yolo Adult Day Health Center February 9, 2012

2. What we will Cover Today • How to file an appeal of a CBAS denial • What to expect at the fair hearing • How to show that you are eligible for CBAS

3. What we will NOT Cover Today • Detailed information on the CBAS eligibility criteria • Detailed information on the CBAS assessment process • Managed care enrollment • Becoming or remaining a CBAS provider • Provider rates/non-profit conversion or status

4. Materials to Assist You • CBAS Fair Hearing Packet • Detailed information on the hearing process and how to document CBAS eligibility • Excerpts from the Darling v. Douglas Settlement Agreement • Sample Hearing Request form • Sample position statement • CBAS Self-Assessment Worksheet • CBAS Definitions and Eligibility Criteria for CBAS

5. Background • Community Based Adult Services (CBAS) will begin no sooner than March 1, 2012, replacing the ADHC Medi-Cal benefit which will end on February 29, 2012 • CBAS provides the same services as ADHC • The Darling v. Douglas Settlement Agreement created eligibility criteria for CBAS that is in addition to existing ADHC criteria • DHCS is assessing most ADHC participants for CBAS eligibility

6. PART I: THE FAIR HEARING PROCESS

7. Notice of Action • After being assessed for CBAS, DHCS will send a Notice to each participant in the mail • ADHC providers will be told who is eligible and ineligible before DHCS sends notices to participants • CBAS eligible participants will get a Notice explaining how to enroll in CBAS • Participants who are noteligible will get a Notice of Action • Only participants can file an appeal; providers can assist (can become Authorized Representative) and should help participants know what to expect in the process

8. Notice of Action (cont’d) • The Notice of Action: • Informs participants they are not eligible for CBAS • Includes a Hearing Request form • Includes an Authorized Representative section • Explains how and when to file for a fair hearing KEEP THE ENVELOPE THE NOTICE OF ACTION CAME IN SO YOU CAN PROVE WHEN IT WAS SENT TO YOU

9. Notice of Action (cont’d) • What Should Participants Do with the Notice of Action? Note the postmark date to make sure that they ask for a hearing within the 10 days for participants who may be eligible for aid paid pending • Help participants understand their options: • File for a hearing; AND/OR • Ask for Enhanced Case Management to help them get other services when ADHC ends on February 29, 2012

10. Filing for a Fair Hearing • The Notice of Action explains how to file for a fair hearing: • Fill out the form on the back of the Notice of Action and send it to the address listed on the form • Send a letter to: California Department of Social Services State Hearings Division P.O. Box 944234, Mail Station 9-17-37 Sacramento, CA 94244-2430 • Fax a request to 1-916-651-5210 or 1-916-651-2789 (Attention: State Hearing Support) • Call: Phone: 1-800-952-5253 or TDD: 1-800-952-8349

11. Filing for a Fair Hearing (cont’d) • If needed, request an interpreter for the hearing along with the hearing request • Authorized Representative (AR): • A friend, family member, ADHC provider, advocate, or lawyer can be a participant’s AR • An AR may speak for the participant at the hearing and receive confidential information • Complete the Authorized Representative section of the Hearing Request form

12. Aid Paid Pending • Aid Paid Pending means that the participant’s ADHC/CBAS services continue at the same level until the hearing is decided • ADHC providers will get paid from Medi-Cal for services provided if aid paid pending is granted • Most ADHC participants are not eligible for Aid Paid Pending • The notices being sent by DHCS do not tell you about Aid Paid Pending

13. Aid Paid Pending (cont’d) • To qualify for Aid Paid Pending: • An ADHC participant must be found to be Presumptively Eligible for CBAS A hearing must be requested within 10 days of the postmark on the Notice of Action (the Notice does not tell you this) • Participants should write on the hearing request form: “I am entitled to aid paid pending according to the Darling v. Douglas settlement agreement because I was, or should have been, determined to be Presumptively Eligible for CBAS”

14. Aid Paid Pending (cont’d) Here’s the catch: DHCS is supposed to provide ADHC centers with lists of all the participants who are presumptively eligible. If a center believes someone who is not on the DHCS list is presumptively eligible, and that participant is sent a Notice of Action, participants will need to: • File for a fair hearing within 10 days • Ask for Aid Paid Pending The participant will need to prove to the judge that she qualifies as presumptively eligible and is entitled to aid paid pending. DHCS may challenge this.

15. The Fair Hearing • When and Where: • The participant or AR will receive 2 letters– the first is confirmation of the hearing request and the second will tell you the date, time, and location of the hearing • The hearing will be in the participant’s county of residence, often in the county Dept. of Social Services • The participant should be notified of the hearing date within 30 working days after the request for a hearing is filed. • The participant may request a telephonic or home hearing • The participant does not have to accept a telephonic hearing if he does not want one

16. How to Get Help • For information or free help filing your appeal you can call Disability Rights California at:  Phone: 1-800-776-5746  TTY: 1-800-719-5798 • Disability Rights California may also be able to represent a small number of participants at their hearings • Look for current information and download information at www.disabilityrightsca.org • Call your local legal aid office or welfare rights group.  Phone: 1-800-952-5253  TDD: 1-800-952-8349

17. Preparing for the Hearing • Request the CBAS case file from the Medi-Cal Field office or make a written request to the DHCS nurse contact for CBAS assessments • Keep a copy of the written request • Ask for all CBAS Assessment documents: • CBAS Eligibility Determination tool and supporting records • Second level review documents • All notes, recorded information, and other documents relied on in making the determination of ineligibility

18. Preparing for the Hearing (cont’d) • Update the IPC to document any change in condition, if necessary, including all necessary signatures from MDT members • Complete the CBAS Self-Assessment Worksheet (compile all documents from ADHC chart, DHCS file, and other sources) • Write position statement

19. Preparing for the Hearing (cont’d) • What to Submit at the Hearing • Position Statement • Evidence Packet that contains: • Completed CBAS Worksheet • Supporting medical records and IPC • Applicable sections of Darling v. Douglas Settlement Agreement, definitions and criteria for eligibility • Bring 3 copies (1 for participant/AR, 1 for the judge, 1 for DHCS) • Bring a copy of the Authorized Representative form

20. Preparing for the Hearing (cont’d) • Decide on witnesses and prepare them for speaking at the hearing: • Participant • Family member(s) • IHSS worker • ADHC Social Worker, Nurse, etc. • Witnesses must speak to participant’s diagnoses, treatment, and functional limitations. Be Specific! • It is not enough to say how important the center is or talk generally about the participant’s needs or disabilities.

21. At the Fair Hearing • Informal, not in a courtoom • Administrative law judge presides • Witnesses will be sworn in • Documents marked as Exhibits to be considered by the judge • Both sides present their cases, judge may ask questions • If more information is needed, you can ask to leave the record open

22. The Hearing Decision and What Happens Next • Record closed, case under submission • Written final decision mailed to participant • Participant can get Enhanced Case Management to start obtaining services in case hearing is not successful or if ADHC ends before the decision arrives • If participant is not getting aid paid pending, ADHC will end on February 29, 2012

23. PART II: DOCUMENTING CBAS ELIGIBILITY

24. CBAS ELIGIBILITY CRITERIA Overview of 5 Categories 1. NF-A Level of Care or above. People whose care needs and functional limitations require at least Nursing Facility Level of Care A (NF-A) 2. Brain Injury/Chronic Mental Illness. People who have a brain injury or a chronic mental illness (such as schizophrenia, anxiety, or depression) AND need help with certain daily activities 3. Moderate to Severe Cognitive Impairment. People who have moderate to severe Alzheimer’s disease or other dementia 4. Mild to Moderate Cognitive Impairment. People who have mild to moderate Alzheimer's disease or other dementia AND need help with certain kinds of daily activities 5. Developmental Disability. People who have a developmental disability that qualifies them to be a Regional Center client

25. CBAS ELIGIBILITY CRITERIA DOCUMENTING ELIGIBILITY IN ADHC RECORD • History and Physical (diagnoses and specific recommendations by the physician) • Most current Individual Plan of Care (IPC) (ADL/IADL needs as measured by the PT, OT, nurse and social worker, and the interventions necessary while at the Center • All multi-disciplinary team (MDT) initial and most recent assessments (functional impairments requiring monitoring and interventions) • 6 months of daily flow sheets daily flow sheets (daily interventions provided by the entire professional team) • 6 months of progress notes • ADHC staff, such as a nurse and/or social worker should attend the hearing as a witness to speak to explain the documents and testify about needs and conditions of participant

26. Nursing Facility-A or Above • Eligibility regardless of living arrangement (i.e., people who live in board and cares or at home can still meet NF-A) • Title 22 criteria are a guide; not all factors are required • NF-A level of care is the minimum requirement for this category; people with higher needs would still qualify

27. Nursing Facility-A or Above • To meet NF-A level of care, state regulations say that people who meet NF-A Level of Care (LOC) may: • Need ongoing intermittent skilled nursing, including for observation for response and effect of medications on an intermittent basis; • Need a special diet; • Need some assistance or supervision in personal care, such as in bathing, dressing, or transferring; • Need encouragement in restorative measures for increasing and strengthening his functional capacity to work toward greater independence; • Have some degree of vision, hearing or sensory loss; • Have some limitation in movement, but must be ambulatory with or without an assistive device such as a cane, walker, crutches, prosthesis, wheelchair, etc; • Be occasionally incontinent of urine; • May exhibit some mild confusion or depression.

28. Nursing Facility-A or Above • Demonstrating that a participant meets Category 1 (NF-A or above): • ADHC nurse should testify if possible about how the participant meets the Title 22 criteria • Family member or IHSS worker can speak to needs for personal care at home, functional limitations, medication needs, etc. • ADHC record should be used to support title 22 criteria • Remember, needs higher than in the Title 22 guide are important to highlight

29. Brain Injury/Chronic Mental Illness Participants must: • have an Organic, Acquired or Traumatic Brain Injury diagnosed by a doctor, and/or a Chronic Mental Illness AND (2) require assistance and/or supervision with either: (a) two (2) of the following ADLs / IADLs: bathing, dressing, self-feeding, toileting, ambulation, transferring, medication management, and hygiene; OR (b) one (1) ADL/IADL listed above, AND one (1) of the following: money management, accessing resources, meal preparation, or transportation.

30. Brain Injury/Chronic Mental Illness • Demonstrating that a participant meets Category 2: ► Document physician diagnosis of traumatic, acquired or organic brain injury such as: “CVA” – or cerebrovascular accident, as well as brain injuries due to an external trauma or disease OR ► Show documentation of chronic mental illness from list in Darling v. Douglas settlement, including diagnosis, medications, and/or treatments for condition AND ► Show documentation from ADHC record of ADL/IADL needs ► Family member and/or IHSS worker can speak to personal care needs at home REMEMBER, YOU DO NOT NEED TO SHOW A NEED FOR A SERVICE AT THE ADHC CENTER TO INCLUDE IT IN THE LIST OF QUALIFYING ADLs/IADLs

31. Moderate to Severe Cognitive Impairment • Moderate to severe Alzheimer’s disease or other dementia that has equivalent characteristics to Stages 5, 6, or 7 Alzheimer’s disease • No ADL / IADL Requirement • Stage 5: Moderately Severe Cognitive Decline: Major gaps in memory and deficits in cognitive function emerge. Some assistance with day-to-day activities becomes essential • Stage 6: Severe Cognitive Decline: Memory difficulties continue to worsen, significant personality changes may emerge, and affected individuals need extensive help with daily activities • Stage 7: Very Severe Cognitive Decline: This is the final stage of the disease when people lose the ability to respond to their environment, the ability to speak, and, ultimately, the ability to control movement

32. Moderate to Severe Cognitive Impairment • Demonstrating that a participant meets Category 3: • Qualified professional should testify about which Stage best describes the participant’s condition • Show documentation from ADHC record or other medical records that support the appropriate Stage • Family member or others who know the participant should testify with examples of the memory loss, loss of abilities, or other factors that fit into the appropriate Stage

33. Mild to ModerateCognitive Impairment • Moderate Alzheimer’s disease or other dementia that has equivalent characteristics to Stage 4 Alzheimer’s disease AND • Require assistance and/or supervision with two (2) of the following activities ADLS / IADLS: bathing, dressing, self-feeding, toileting, ambulation, transferring, medication management, and hygiene. • Stage 4: Moderate Cognitive Decline: A professional interview detects clear-cut deficiencies in memory, capacity for complex tasks, managing finances, etc.

34. Mild to ModerateCognitive Impairment • Demonstrating that a participant meets Category 4: • Qualified professional should testify how the participant’s condition fits into Stage 4 or the equivalent • Show documentation from ADHC record or other medical records that support Stage 4 and ADL/IADL needs • Family member or others who know the participant should testify with examples of the memory loss, loss of abilities, or other factors that support Stage 4, and functional limitations and needs that demonstrate ADL/IADL needs REMEMBER, YOU DO NOT NEED TO SHOW A NEED FOR A SERVICE AT THE ADHC CENTER TO INCLUDE IT IN THE LIST OF QUALIFYING ADLs/IADLs

35. Developmental Disability • Must meet the criteria for Regional Centers for people with developmental disabilities • Currently these participants are all Categorically Eligible and should not be denied CBAS.

36. Presumptive Eligibility • DHCS review of IPC shows: • Need for assistance or supervision with three (3) of the following: bathing, dressing, self-feeding, toileting, ambulation, transferring, medication management, hygiene; AND • One nursing intervention at ADHC OR  Meets Nursing Facility-B level of care

37. Presumptive Eligibility • DHCS is supposed to provide a list to all ADHCs • Unclear if DHCS lists are complete, up-to-date, or accurate • ADHC centers should have screened for presumptive eligibility If participant who ADHC center determined to be presumptively eligible is found ineligible, appeal within ten (10) days and ask for aid paid pending! • More information coming as this issue is worked out by the Darling v. Douglas parties

38. CLOSING • Questions • For more information contact Disability Rights California at: http://www.disabilityrightsca.org/advocacy/Darling-v-Douglas/index.html OR Call DRC’s toll-free number: 1-800 776-5746