059-2006 New Medi-Cal Estate Recovery Regulations Proposed - Impacts People With Disabilities & Seniors

CDCAN
CALIFORNIA DISABILITY COMMUNITY ACTION NETWORK
DISABILITY RIGHTS NEWS REPORT
#059-2006 June 11, 2006 - Sunday
Advocacy Without Borders:
Connecting people with disabilities & seniors to rights and unified action
IN MEMORY OF WARREN A. MATTINGLY WHO PASSED AWAY MAY 24
1225 8th Street Suite 480 - Sacramento, CA 95814 916/446-0013 Fax: 916/446-0026
To Respond to THIS email report reply to: martyomoto@rcip.com
CDCAN website: www.cdcan.us

Medi-Cal Proposed Regulations
* Department of Health Services Issues New Proposed Regulations
* Covers Medi-Cal Estate Recovery Exemptions
* Impacts People with Disabilities and Seniors
* Public Hearing Set for August 2 In Sacramento
* CDCAN Townhall on Medi-Cal Set for June 20

SACRAMENTO - The California Department of Health Services issued new proposed regulations that Director Sandra Shewry says would clarify and change Medi-Cal estate recovery exemptions that impact the property and money left by people with disabilities and seniors who receive Medi-Cal services and pass away, or who are immediate family survivors of a Medi-Cal recipient who has died.

This is the third set of regulations dealing with how the State recovers the money it spent on certain Medi-Cal recipients by claiming the property and money of the person after they die. There are several restrictions in federal and State law on how that can be done, and specific rules that exempt certain persons from Medi-Cal estate recovery.

Many local and statewide disability and senior advocacy groups including independent living centers, senior groups, the California National Academy of Elder Law Attorneys, the California Advocates for Nursing Home Reform and others, are certain to carefully review the proposed regulations and make comments. Several groups and individuals have raised major concerns and objections in the past on how changes to estate recovery by the Department of Health Services (or lack of changes) has impacted people with disabilities and seniors, though some of the previous changes, including those impacting In-Home Supportive Services, were widely supported.

The process - called "estate recovery" was the subject of a lawsuit filed by the California Advocates for Nursing Home Reform against the Department of Health Services, which oversees the State's Medicaid Program, called Medi-Cal. The State settled in 2003 the lawsuit, with an agreement that the Department of Health Services would issue a series of regulations hat would clarify and make needed changes under existing federal and State laws regarding estate recovery. The California Advocates for Nursing Home Reform, CANAELA and other advocacy groups have been critical of the State's response to the settlement.

Copy of Proposed Regulation Documents Attached and On CDCAN Website
Attached to this report are two of the five documents or packages issued by the Department of Health Services relating to the new proposed regulations - the actual copy of the letter announcing the proposed regulations from Department of Health Services Director Sandra Shewry, dated May 24, 2006, and a copy of the actual text of the proposed regulations. Copies of these and other documents can be viewed and downloaded from the California Disability Community Action Network (CDCAN) website at www.cdcan.us

Townhall Telemeeting on Medi-Cal Changed To June 20th
A CDCAN Disability Rights Townhall Telemeeting, previously scheduled June 14 on Medi-Cal issues, including the proposed regulations, has been rescheduled for June 20 due to a meeting conflict with Department of Health Services officials. The head of the state's Medi-Cal program, Stan Rosenstein will be the featured guest to provide an update on changes to Medi-Cal, implementation of the federal Deficit Reduction Act of 2005 in California and answer questions. In addition department staff dealing specifically with the proposed estate recovery regulations are scheduled to be on hand to provide an update and to answer questions (they are limited in how they can respond under the State's regulatory process however).
Participation in the townhall is open to everyone and is free. To participate, watch for the CDCAN special notice or go to the CDCAN website at www.cdcan.us OR simply dial toll free number:
* Participant toll free number: 1-800-608-4143   Note: there is NO passcode.

What the New Proposed Estate Recovery Regulations Would Do
The third and final set of Medi-Cal estate recovery regulations would affect Title 22 of the California Code of Regulations, changing (amending) sections 50961 and 50962 and adding a new section (50966) to do the following:
* Would specify that a surviving child (or his or her representative) shall provide documented evidence to the Department of Health Services that he or she is a child under the age of 21, or blind, or has a disability within the meaning of Section 1614 of the federal Social Security Act (Title 42, USC section 1382c) of a person on Medi-Cal who died, in order for the Department of Health Services to withdraw a claim for estate recovery.
* Would specify what documented evidence would be needed to substantiate the requested exemption from estate recovery, and the burden of providing such evidence to the State.
* Would specify the time when the surviving child must be under the age of 21 and when blindness or a disability must exist or be present to qualify for an exemption from estate recovery.
* Would provide notification provisions to ensure that surviving children of a person on Medi-Cal who died are informed of the basis for an exemption from estate recovery and their rights to seek an exemption,
* Would specify that in the absence of existing evidence of a disability, a surviving child or his or her representative, can make an application to the Department of Health Services for a determination of disability. These proposed regulations specifies the process to be used and incorporates three forms used in determination of disability: Applicant's Supplemental Statement of Facts for Medi-Cal (form MC 223 (1/99); Authorization for Release of Information (form MC 220 (4/03); and Appointment of Representative - Estate Recovery (form DHS 6249 (9/04).
* Would establish timeframes for a child, or the child's representative, to request a determination of disability and timeframes to return the completed forms and documented proof to the Department of Health Services. Would establish when collection activities against the property and money (estate) of the person on Medi-Cal who died would be suspended and resumed during the notification and determination of disability process.
* Would specify that the California Department of Social Services will make the determination of disability on behalf of the Department of Health Services when the surviving child's income does not exceed the Substantial Gainful Activity limit and describe the notification procedures.
* Would specify the circumstances when a claim exemption would not apply.
* Makes technical changes (non-substantive) for consistency and clarification of language used in these sections.
* Would remove the provisions that specifies that the Department of Health Services would value life estates and claims against such interests when there is an irrevocable transfer of the remainder interest.
* Would clarify the value of the Department of Health Services' claim for revocable transfers of the remainder interest in property, when an irrevocable or revocable life estate is granted.

Public Hearing by Department of Health Services Set for August 2
The general public can make official comments on the proposed regulations in at least two ways: by attending and making comments orally at a public hearing and/or submitting written comments before the deadline of August 4.
PUBLIC HEARING:
* Scheduled for August 2, 2006, beginning at 10:00 AM, in the Department of Health Services Building auditorium, 1500 Capitol Avenue, Sacramento, CA 95814.
WRITTEN COMMENTS
All written and oral comments must be received by the Department of Health Services' Office of Regulations by 5:00 PM on August 4, 2006. All comments, to be considered, should include name, US postal mailing address and the proposed regulation number (R-14-04.
* ORAL COMMENTS
California Relay Service: Call 1-800/735-2929 if you have a TDD or 1-800/735-2922 if not.
* COMMENTS BY US MAIL (or Hand Delivered)
Department of Health Services - Office of Regulations MS 0015
1501 Capitol Avenue
Post Office Box 997413
Sacramento, CA 95899-7413
*COMMENTS BY FAX
916/440-7714
* COMMENTS BY EMAIL:
Note: it is requested that you put in the subject line the proposed regulations number ("R-14-04") and also on any attachments to the email. Email to:   regulation@dhs.ca.gov
* COMMENTS VIA DEPARTMENT WEBSITE FORM
Go to the Department of Health Services website and fill in the form and submit at:
http://www.applications.dhs.ca.gov/regulations.

Information About The Proposed Regulations
For any questions people should identify the proposed regulations by using the proposed regulation's number (R-14-04)
* For more information about the substance (content) of the proposed regulations, contact Joy Cheah with the Department of Health Services Third Party Liability Branch at 916/650-0564.
* For information about the process of the proposed regulations (NOT content) contact Lynette Cordell with the Department of Health Services Office of Regulations at 916/650-6827 or her designated backup person, Chuck Smith at 916/440-7695.

Previous Medi-Cal Estate Recovery Regulations
* The first set of Medi-Cal estate recovery regulations were issued as emergency regulations July 27, 2004, that took effect immediately, included annuities as an asset in the definition of a "estate" of a deceased person on Medi-Cal, and removed the term "other arrangement".
* The second set of regulations became effective May 10, 2006 (issued in March) which defined terms used in Medi-Cal estate recovery; identified health care services included in the estate recovery claim; made more specific the exemptions under which a claim shall not be made against the estates of Medi-Cal recipients who have died; specified the types of life estate interests that are subject to estate recovery claim and how value is determined; made more specific the requirements for and the address to which notification of the death of a person receiving Medi-Cal services shall be mailed; provided additional hardship waiver criteria; established the process for a voluntary post death lien; and specified the interest rate charged on an unpaid estate recovery claim.

CDCAN Capitol News Reports and Alerts
These CDCAN Reports are partially funded by a small grant from the USC UCEDD, Grant #90DD0540 from the Administration on Developmental Disabilities. The opinions expressed or content in these reports do not necessarily reflect the views or opinions of the USC UCEDD.
The California Disability Community Action Network is a non-partisan link to tens of thousands of Californians in every community, including people of color, people of every type of disability, including people with physical disabilities, people with developmental and other disabilities, people with traumatic brain and other injures, people with mental health needs, seniors, people with MS, Alzheimer's and others, and all of their families, community organizations and providers, direct care and other workers, and other advocates. These action alerts and news reports is for all of them.   If you would like to get on this distribution (and conversely, get off of it) please send an email with that request to: martyomoto@rcip.com OR sign up via the NEW CDCAN website at www.cdcan.us Sharing information is part of our organizing effort. Please feel free to forward or copy this (attribution is nice but not necessary). We're all in this together!
MANY THANKS to Training Toward Self Reliance, UCP, California NAELA, Californians for Disability Rights, Inc (CDR), CHANCE Inc, Parents Helping Parents, Arriba, Strategies Toward Empowering People, Parents Helping Parents, Asian American parents groups, Resources for Independent Living and many other Independent Living Centers, several regional centers, People First chapters, IHSS workers, other self advocacy and family support groups, developmental center families, and hundreds of individuals. Thanks also to partnerships and the good people with the State Council on Developmental Disabilities, and also the Department of Health Services, the Department of Developmental Services, Department of Social Services and the CA Health and Human Services Agency and other agencies, and the State Legislature and staff, the Legislative Analyst Office. Good people who do good things can make a difference together.