Advocates File Contempt Motion Against State

The settlement now is officially unsettled.

Disability Rights California, which filed and then settled a lawsuit challenging the transition of adult day health care by the Department of Health Care Services, now has filed a contempt motion saying that DHCS officials have not been following the terms of the agreement.

That settlement prompted the state’s creation of the Community Based Adult Services program, due to launch Sunday, the day after ADHC is eliminated as a Medi-Cal benefit.

DRC officials say the state has illegally limited the eligibility status of many elderly Californians who were originally approved for the CBAS program. The new legal challenge places the Apr. 1 transition in doubt.

“People have been denied eligibility who were already in line for eligibility status in the assessments,” Elissa Gershon of DRC said. Gershon said eligibility for CBAS was supposed to be determined by nurses’ face-to-face assessments. But in many cases, Gershon said, the nurses approved eligibility — only to have a state official undo that eligibility as part of a “quality assessment” measure.

“The vast majority were overturned after the fact,” Gershon said. “It’s pretty dramatic. That’s not what the settlement says. There is supposed to be a second level of review, but it’s supposed to go the other way.” The beneficiaries are supposed to be able to ask for a review of denials, but the state was not supposed to review approvals, Gershon said.

“It was not a two-way street,” she said. “There was no provision to second-guess finding of eligibility. DHCS put in this extra step of a QA assessment.”

DHCS officials would not comment, but did release a one-paragraph written response:

“DHCS has been, and will continue to be, in full compliance with the terms of the settlement agreement,” the statement said. “Our settlement agreement includes a mutually agreed upon dispute resolution process that has been effectively followed throughout this process. Differences of opinion regarding the settlement terms have regularly been mediated, and in most instances resolved to the satisfaction of both parties. This filing by the plaintiffs is unnecessary. DHCS is disappointed that the plaintiffs have abandoned the well-intentioned and cooperative process that we have used successfully to this point.”

Gershon said three mediated sessions with DHCS officials have not resolved several issues.

The other major concern for DRC in the transition of 37,000 beneficiaries of day services is that the state was supposed to set aside those cases who are “presumptively eligible.” That would be one step below “categorically eligible,” and includes those ADHC recipients who are most likely to be institutionalized if ADHC benefits were withdrawn.

The state skipped that step, Gershon said, by including the presumptively eligible with all of the assessments. That creates a problem, she said, because if anyone who would have been presumptively eligible is actually excluded from eligibility and needs to appeal that decision, those people would not be able to last the week or month without those benefits, while waiting for an appeal decision.

“The bargain is, that the group of people most likely at-risk of institutionalization would not have an interruption in services,” Gershon said. “This [move by DHCS] changed the terms of the agreement, denied presumptive eligibility by skipping that step. If that had been part of the agreement, we would have had different criteria for that. They changed the terms of the agreement after the fact, which is prohibited by law.”

The contempt motion, filed March 22, will be heard Thursday by Judge Jacqueline Scott Corley in U.S. District Court in San Francisco.

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