CDCAN DISABILITY RIGHTS REPORT
CALIFORNIA DISABILITY-SENIOR COMMUNITY ACTION NETWORK
APRIL 20, 2015 – MONDAY EVENING
ADVOCACY WITHOUT BORDERS: ONE COMMUNITY – ACCOUNTABILITY WITH ACTION
CDCAN Reports go out to over 65,000 people with disabilities, mental health needs, seniors, people with traumatic brain and other injuries, people with MS, Alzheimer’s and other disorders, veterans with disabilities and mental health needs, families, workers, community organizations, facilities and advocacy groups including those in the Asian/Pacific Islander, Latino, American Indian, Indian, African-American communities; policymakers, and others across the State.
Sign up for these free reports by going to the CDCAN website. Website: www.cdcan.us
To reply to THIS Report write:
Office Line: 916-418-4745 CDCAN Cell Phone: 916-757-9549
REMEMBERING THE LIFE AND WORK OF DAN AIELLO – STATEHOUSE EXAMINER
State Capitol Update:STATE FILES MOTION ASKING FEDERAL DISTRICT COURT TO “VACATE” OR SET ASIDE FEB 13, 2015 RULING THAT STRUCK DOWN TWO CUTS MADE IN 2009 & 2011 TO MEDICAID FUNDED COMMUNITY SITE-BASED PROGRAMS COORDINATED UNDER REGIONAL CENTERS CALLED “UNIFORM HOLIDAY SCHEDULE” & “HALF-DAY BILLING RULE”
Attorney General of California Cites Earlier March 31st US Supreme Court Decision That Took Away Right of Medicaid Funded Providers and Recipients to File Lawsuits Under Federal Medicaid Law- Court Hearing Set May 14th On State’s Motion
SACRAMENTO, CA [CDCAN LAST UPDATED 04/20/2015 – 11:15 PM] – Citing the March 31st US Supreme Court decision that took away the right of providers and recipients to file lawsuits under federal Medicaid laws, the State of California, in a surprise move, filed a motion in federal district court in Sacramento on April 15th, requesting that the court “vacate” or set aside its earlier February 13th ruling in the lawsuit called “Arc California and UCP of San Diego v. Toby Douglas, et al” that struck down two cuts made in 2009 and 2011 impacting many Medicaid funded community site-based programs serving about 80,000 people with developmental disabilities coordinated by the 21 non-profit regional centers under the Department of Developmental Services.
The State is seeking, through its request to the court, to reinstate those two previous reductions: the “uniform holiday schedule” implemented in 2009 that imposed essentially 14 mandatory annual furlough days where providers of many site based programs were not paid for any services; and the “half-day billing rule” implemented in 2011 that limited payment to providers of many site based program for only a half day if a recipient of that program was present for less than 65% of a program day.
A hearing on the request or motion is scheduled for May 14, 2015, at 2:00 PM before Federal District Court Judge Morrison England, Jr. in Sacramento. CDCAN will issue report on the hearing and any subsequent ruling by the judge.
Many advocates for people with developmental disabilities and their families and providers expressed shock and anger at the State’s action, especially after the Brown Administration’s earlier announcement in mid-March that it would not appeal and instead fully comply with the federal district court order.
If the State’s April 15th motion filed by the Attorney General of California – the office that represents state officials sued in lawsuits filed against state agencies – is granted by the judge, it would have the impact of reinstating those two reductions. If the State’s request is denied by the judge, the restoration of the two reductions would continue, including providers being reimbursed for previously unpaid mandatory holidays.
Under federal court rules, either party in a lawsuit – usually the losing party – can ask the court to vacate or set aside its previous ruling or verdict in a case for certain specific reasons or “any other reason that justifies relief”, within about a year when that ruling or verdict was made. The court is not required to grant the request or motion.
WHAT THE STATE IS NOW ASKING THE FEDERAL DISTRICT COURT
In a 9 page document, the Attorney General of California asked the court the following:
“The Supreme Court has held that there is no private right of action to enforce Section 30(A) [Medicaid law] and federal courts lack jurisdiction to issue such an injunction. This Court should therefore vacate the partial summary judgement and permanent injunction, and dismiss Plaintiff’s [Arc California and UCP of San Diego] Medicaid Act claim. Defendants [State of California] request that the Court rule on this motion, if possible, before the next uniform holiday on May 25, 2015 [Memorial Day]. Doing so will eliminate unnecessary confusion about the state of the two state statutes.
Dated: April 15, 2015
Kamala D. Harris
Attorney General of California
Niromi W. Pfeiffer
Supervising Deputy Attorney General
Deputy Attorney General
Attorneys for Defendants Department of Developmental Services and Department of Health Care Services”
FEDERAL DISTRICT COURT IN SACRAMENTO ON FEBRUARY 13TH ISSUED RULING AGAINST STATE
As previously reported by CDCAN, Morrison C. England, Jr., chief judge of the US District Court for Eastern California, in a ruling dated February 11th but issued February 13, 2015, ordered the State to stop further implementation of the mandatory “uniform holiday schedule” and “half-day billing rule” put in place in 2009 and 2011 that were meant to help close enormous State budget shortfalls, along with other major cuts to health and human services. The State, represented by Attorney General Kamala Harris, is now requesting that same federal district court to “vacate” or set aside that February 13th ruling, arguing that providers do not have the right to sue under Medicaid laws.
The Judge said in his February 13th ruling those two reductions violated federal Medicaid laws by failing to follow a specific process of review and proper prior approvals the from the federal government that those laws require. The judge’s February 13th ruling did not say that the State could not impose such reductions or other types of reductions, but that if it did so, needed to follow federal Medicaid laws.
The lawsuit, filed September 28, 2011, originally also called for rescinding of a 4.25% rate reduction impacting at that time many regional center funded providers. That reduction however was previously scheduled, to be reduced to 1.25% as of July 1, 2012 and that reduction was also previously scheduled to expire as of June 30, 2013 as part of the Governor’s proposed (and later enacted) budget.
The challenge in the lawsuit to those rate reductions, because they no longer were in existence as the case dragged on for another year and half, were dismissed earlier by the court as “moot” (meaning the challenge in the lawsuit to end the provider rate reductions were meaningless because those specific reductions no longer existed). The February 13th ruling was called a “partial summary judgement” because it did not include those two rate reduction issues.
Though many advocates and legal observers had expected the State to file an appeal to that ruling to the US Court of Appeals for the 9th Circuit to at least request a delay in the implementation of the February 13, 2015 federal district court order due to the pending Idaho case before the US Supreme Court, the Brown Administration instead decided not to file an appeal.
The Department of Developmental Services announced on March 11th at the Olmstead Advisory Committee meeting in Sacramento, and again on March 12th at the Senate Budget Subcommittee #3 on Health and Human Services hearing at the State Capitol that it intended to fully comply with that federal district court ruling and that it would shortly be issuing a letter to regional centers regarding restoration of those two reductions.
On March 17th the Department of Developmental Services issued an official directive to the 21 non-profit regional centers who determine eligibility and coordinate services provided by community-based organizations and individuals for over 260,000 children and adults with developmental disabilities, announcing elimination of the “Uniform Holiday Schedule” and “Half-Day Billing Rule” reductions effective immediately. The first holiday impacted was the March 31st Cesar Chavez Day, which meant that impacted providers could now bill the State for reimbursement for people attending their programs on that day.
About 80,000 people with developmental disabilities who attend community site-based programs were impacted by the federal district court ruling.
IMPACT IF FEDERAL DISTRICT COURT GRANTS STATE’S REQUEST
It is not clear how the State’s April 15th motion to “vacate” or set aside the February 13th federal district court ruling will impact any payments made or owed to providers for reimbursement for services provided on Cesar Chavez Day or payments made or owed due to elimination of the “Half-Day Billing Rule” if the federal district court judge grants the State’s request.
The next holiday – Memorial Day (May 25th) – under the previous “Uniform Holiday Schedule” will not occur until after the May 14th federal district court hearing on the State’s motion to “vacate” the ruling that struck down those mandatory unpaid holidays and the “Half-Day Billing Rule”.
The request or motion filed by the State on April 15th urges the court to make a ruling before that next holiday (May 25th) in order to “eliminate unnecessary confusion about the status of the two state statutes”, which would seem to indicate that the action to restore the reductions including the “Half-Day Billing Rule” would not be retroactive.
However the specific impact of the State’s motion or request to “vacate” the federal district court judge’s previous ruling that struck down those two reductions, including any effective date if the request is granted, won’t be known until the judge issues a ruling on that request following the May 14th court hearing in Sacramento.
CDCAN will provide detailed reporting on what the judge decides in this case following the May 14th court hearing.
STATE CITES EARLIER US SUPREME COURT DECISION
In filing the motion or request to “vacate” the February 13th federal district court order, the Attorney General of California cited a major US Supreme Court decision in a closely watched Idaho federal lawsuit.
As previously reported by CDCAN, the US Supreme Court, on March 31st, in 5-4 decision, in an Idaho case titled “Armstrong et al v. Exceptional Child Center, et al”, significantly narrowed the ability of Medicaid providers and recipients to stop reductions in federal court, handing down a ruling that those providers cannot sue a state under federal Medicaid laws for reductions or for low reimbursement rates. The high court said that instead, those providers would need to use an administrative process under the US Department of Health and Human Services to address any complaints or concerns with reimbursements or services. Oral arguments before the US Supreme Court was held on January 20, 2015, though a decision handed down by the high court was not expected by many legal observers until June.
The ruling in the Idaho case was an important significant victory for states and the federal government and a major setback for advocates for Medicaid – called “Medi-Cal” in California – providers and recipients and their families. California was one of several states, in addition to the Obama Administration, that filed legal briefs in support of the State of Idaho, contending providers and recipients had no right to sue under Medicaid laws.
While the US Supreme Court ruling does not stop those Medicaid providers and recipients from filing a federal lawsuit under different federal laws, doing so – and prevailing – would be much more difficult, according to advocates.
The US Supreme Court decision in the Idaho Medicaid case was handed down after the February 13th federal district court ruling in the “Arc California and UCP San Diego v. Toby Douglas, et al”, lawsuit and normally would mean its decision would not impact an earlier lower court ruling where the losing party decided not to appeal and decided to comply. While not a common occurrence, federal court rules allow either party (normally the losing party) to request that the court “vacate” or set aside its final ruling in a case – which the State on April 15th did.
WHAT PROGRAMS WERE IMPACTED BY THE FEBRUARY 13th FEDERAL DISTRICT COURT RULING & WOULD BE IMPACTED BY THE STATE’S REQUEST TO “VACATE” OR SET ASIDE THAT RULING
The “uniform holiday schedule”, essentially mandatory unpaid furlough days for many site based community programs serving people with developmental disabilities, was part of a larger package of major reductions and cuts imposed on all areas of the State budget in 2009, especially to health and human services. (See below for specific section in State law regarding this reduction). The State’s motion filed on April 15, 2015 is asking to the federal district court in Sacramento to “vacate” or set aside its earlier February 13th ruling, and reinstate this reduction.
The “uniform holiday schedule” reduction went into effect August 1, 2009 and specifically impacted regional center funded work activity programs, activity centers, adult development centers, behavior management programs, social recreation programs, adaptive skills trainers, infant development programs, program support groups (day service), socialization training programs, client/parent support behavior intervention training programs, community integration training programs, community activities support services, and creative arts programs, as defined in Title 17 of the California Code of Regulations, for providing any service to a consumer on any of the following fourteen (14) holidays: (1) January 1st; (2) The third Monday in January; (3) The third Monday in February; (4) March 31; (5) The last Monday in May; (6) July 4th; (7) The first Monday in September; (8) November 11; (9) Thanksgiving Day; (10) December 25; (11) The four business days between December 25 and January 1.
The “uniform holiday schedule” reduction was authorized in one of the several budget related bills that made up the 2009-2010 State Budget to close an on-going massive deficit in the midst of what was called the “Great Recession”. The budget related bill – known as “budget trailer bills” because those bills follow or trail the main budget bill to make necessary changes in State laws to implement the budget – was ABx4 9 (the “x4” stands for the 4th extraordinary or special session of the Legislature called by the Governor that year) and was passed by the State Senate on July 23, 2009 by a vote of 37 to 1 and by the Assembly by a vote of 62 to 15. Then Governor Arnold Schwarzenegger signed the bill on July 28, 2009, which took effect immediately (Chapter 9, Statutes of 2009).
For HTML Version of ABx4 9 as signed into law July 28, 2009:
For PDF Document Version (43 pages) of ABx4 9 as signed in law July 28, 2009:
CDCAN Note: the specific references to the uniform holiday schedule is on page 41 of the bill.
The “half-day billing rule” reduction effective in 2011, impacted activity centers, adult development centers, behavior management programs, and other look-alike day programs with a daily rate and required those providers to bill regional centers for services provided to people with developmental disabilities they served in terms of half days of service and full days of service. (See below for specific section in State law regarding this reduction). The State’s motion filed on April 15, 2015 is asking to the federal district court in Sacramento to “vacate” or set aside its earlier ruling, and reinstate this reduction.
The “half-day billing” reduction was authorized in AB 104, one of the several budget related bills that made up the 2011-2012 State Budget and was one of many other reductions in the budget to help close what was still an on-going deficit. AB 104 was passed by the State Senate on June 10, 2011 by a vote of 23 to 14 and by the Assembly on June 15, 2011 by a vote of 52 to 25. The measure was signed into law by Governor Brown on June 30, 2011 (Chapter 37, Statutes of 2011) and took effect immediately.
For HTML Version of AB 104 as signed into law June 30, 2011:
For PDF Document Version (33 pages) of AB 104 as signed in law June 30, 2011:
CDCAN Note: references specific to the “half-day billing rule” is on pages 28 and 29 of the bill.
SPECIFIC SECTION IN STATE LAW RELATED TO “UNIFORM HOLIDAY SCHEDULE”
The following is the specific section from California’s Welfare and Institutions Code regarding the “uniform holiday schedule” that was struck down by the federal district court Judge’s ruling issued on February 13, 2015, that the State, represented by Attorney General Kamala Harris is seeking to reinstate in it is motion or request filed April 15, 2015 , asking that court to “vacate” or set aside its earlier ruling:
“4692. (a) Effective August 1, 2009, subject to subdivisions (c) and (e), regional centers shall not compensate a work activity program, activity center, adult development center, behavior management program, social recreation program, adaptive skills trainer, infant development program, program support group (day service), socialization training program, client/parent support behavior intervention training program, community integration training program, community activities support service, or creative arts program, as defined in Title 17 of the California Code of Regulations, for providing any service to a consumer on any of the
(1) January 1.
(2) The third Monday in January.
(3) The third Monday in February.
(4) March 31.
(5) The last Monday in May.
(6) July 4.
(7) The first Monday in September.
(8) November 11.
(9) Thanksgiving Day.
(10) December 25.
(11) The four business days between December 25 and January 1.
(b) Effective August 1, 2009, subject to subdivisions (c) and (e), regional centers shall not compensate a transportation vendor/family member, transportation company, transportation/additional component vendor, transportation broker, transportation assistant/vendor, transportation vendor/auto driver, or transportation vendor/public or rental car agency or taxi, in accordance with Title 17 of the California Code of Regulations, for transporting any consumer to receive services from any of the vendors specified in subdivision (a) for any of the holidays set forth in paragraphs (1) to (11), inclusive, of subdivision (a).
(c) If a holiday listed in this section falls on a Saturday or a Sunday, the following Monday shall be deemed to be the holiday in lieu of the day observed.
(d) Contracts between the vendors described in this section and regional centers shall reflect the holiday closures set forth in this section and shall be renegotiated accordingly, as necessary.
(e) The department may adjust the holidays set forth in subdivision (a) through a program directive. This directive shall be
provided to the regional centers and posted on the department’s Internet Web site at least 60 days prior to the effective date of the change in holiday.”
SPECIFIC SECTION IN STATE LAW RELATED TO “HALF-DAY BILLING” REDUCTION
The following is the specific section from California’s Welfare and Institutions Code regarding the “half-day billing” reduction struck down by the federal district court Judge’s ruling issued on February 13, 2015, that the State, represented by Attorney General Kamala Harris is seeking to reinstate in it is motion or request filed April 15, 2015, asking that court to “vacate” or set aside its earlier ruling:
“4690.6. (a) Activity centers, adult development centers, behavior management programs, and other look-alike day programs with a daily rate shall bill regional centers for services provided to consumers in terms of half days of service and full days of service.
(b) For purposes of this section, the following definitions apply:
(1) “Full day of service” means a day in which the consumer’s attendance is at least 65 percent of the declared and approved
(2) “Half day of service” means any day in which the consumer’s attendance does not meet the criteria for billing for a full day of service.
(c) A regional center may change the length of the declared and approved program day for a specific consumer in order to meet the needs of that consumer, upon the recommendation of the individual program planning team. The regional center shall set forth in the individual program plan the length of the consumer’s program day and the reasons for the change in the length of the declared and approved program day.
(d) The definitions set forth in this section shall not apply to vendors of tailored day program service.
CDCAN – MARTY OMOTO YOUTUBE CHANNEL
A CDCAN (Marty Omoto) youtube channel was set up and has several videos dealing with current – and previous state budget issues, disability and senior rights, and advocacy.
To see the current videos, including March 2014 San Andreas Regional Center Aptos Legislative Breakfast, January 2014 panel discussion on services for adults with autism spectrum and related disorders in Palo Alto, and older videos including video of April 2003 march of over 3,000 people with developmental disabilities, families, providers, regional centers and others from the Sacramento Convention Center to the State Capitol (to attend and testify at budget hearing on proposed massive permanent cuts to regional center funded services, go to the CDCAN (Marty Omoto) Channel at: https://www.youtube.com/channel/UCEySEyhnr9LQRiCe-F7ELhg
More videos – including new current videos (an interview with longtime advocate Maggie Dee Dowling is planned, among others) – plus archive videos of past events – will be posted soon.
ALERT: PLEASE HELP!!!!!!
APRIL 20, 2015 – MONDAY NIGHT
PLEASE HELP CDCAN CONTINUE ITS WORK
CDCAN Townhall Telemeetings, CDCAN Reports and Alerts and other activities cannot continue without YOUR help. To continue the CDCAN website and the CDCAN Reports and Alerts sent out and read by over 65,000 people and organizations, policy makers and media across the State, and to continue and resume CDCAN Townhall Telemeetings, trainings and other events, please send your contribution/donation (please make check payable to “CDCAN” or “California Disability Community Action Network” and mail to:
CDCAN – NEW MAILING ADDRESS:
1500 West El Camino Avenue Suite 499
Sacramento, CA 95833
[replaces 1225 8th Street Suite 480, Sacramento, CA 95814]
Office Line: 916-418-4745 CDCAN Cell Phone: 916-757-9549 (replaced 916-212-0237)
Many, many thanks to all the organizations and individuals for their continued support that make these reports and other CDCAN efforts possible!