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All Center Information by Audience Center Publications
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PAS Workforce > California can save over a hundred million a year MEMORANDUM
Stan Rosenstein, Acting Deputy Director, Medical Care Services, DHS, via e-mail srosenst@dhs.ca.gov Donna L. Mandelstam, Deputy Director, Disability and Adult Program Division, DSS, via e-mail donna.mandelstam@dss.ca.gov cc: Charlene Harrington Marilyn Holle, Senior Attorney, (213) 427-8757 x 3011, marilyn.holle@pai-ca.org Currently slightly over 40% of the cost of the state funded (or original or residual) IHSS program are domestic services cases. Due to a change in federal law, IHSS cases where no nonmedical or paramedical services are authorized are actually eligible for federal financial participation and could be covered as Medi-Cal personal care service through a simple amendment to the state Medicaid plan. This will both address the state's budget shortfall this and remove any reason to eliminate these important services next year. As explained below, California did not include cases with domestic services only as part of the Medi-Cal personal Care Services program based on an early policy interpretation of the federal Medicaid program. This policy was subsequently changed as reflected in the 1999 amendments to the personal care section of the State Medicaid Manual. The Centers for Medicare and Medicaid Services (CMS) now recognize that services California categorizes as domestic and related services are coverable under the Medi-Cal Personal Care Services program even if those are the only services authorized. We urge the State to take immediate action to amend the State Plan in order to collect federal match retroactively for at least for this fiscal year on cases where only domestic and related services are currently authorized. Background prior to OBRA 1993 Prior to OBRA 1993, personal care services had to be prescribed by a physician, supervised by an R.N. and delivered only in the home. The Health Care Financing Agency or HCFA, the former name of CMS, interpreted the personal care services program in a very restrictive manner as reflected in an HHS administrative decision - Decision of the Administrator, No. 87-12, March 19, 1990, CCH MEDICARE AND MEDICAID GUIDE New Dev. ¶ 38,467.2 The decision explained: Personal care services are medically oriented tasks which enable a patient to be treated on an outpatient, rather than an institutionalized basis. The level of care is of a supportive or maintenance type. The tasks, which require less skill than skilled nursing care, include assisting the patients with personal hygiene, dressing, feeding, and transfer and ambulatory needs. Basic homemaker and chore services are not included within the meaning of personal care services.3 Background - 1993 to 1997 Section 13601(a)(5) of the Omnibus Budget Reconciliation Act of 1993 (OBRA 1993) expressly added personal care services to the Medicaid program by the addition of Section 1905(a)(24) to the Social Security Act, 42 U.S.C. § 1396d(a)(24). OBRA 1993 de-medicalized personal care services by eliminating the requirement that the services be prescribed by a physician, by making nurse supervision optional, and by providing that the services could be provided at locations other than the home at the state's election. HCFA was slow to fully implement the OBRA 1993 changes. Until 1997, Section 4480 of the State Medicaid continued to focus on "hands-on" tasks "similar to those that would be performed by a nurse's aide" in a hospital. The State Medicaid Manual retained the concept that domestic and related services could be covered only to the extent they were ancillary or incidental to medical based "hands-on" care: C. Scope of Services - Personal care services are services related to a patient's physical requirements, such as hygiene, activities of daily living, bladder and bowel requirements, and taking medications. Services may include assistance with preparation of meals. . . . When specified in the plan of treatment, they may also include services which are essential to the health and welfare of the beneficiary, such as housekeeping chores like bed making, dusting and vacuuming. Personal care services primarily involve "hands on" assistance by a personal care attendant with a recipient's physical dependency needs (as opposed to purely housekeeping services). These tasks are similar to those that would normally be performed by a nurse's aide if the beneficiary were in a hospital or nursing facility. . . . Section 4480, amended via Transmittal 67 (April 1995), CCH MEDICARE AND MEDICAID GUIDE New Dev. ¶ 43,183. 1999 Rewrite of Section 4480 of the State Medicaid Manual In 1999, HCFA re-issued Section 4480 of the State Medicaid Manual on personal care services. Transmittal No. 73 (October 1, 1999), CCH MEDICARE AND MEDICAID GUIDE New Dev. ¶ 150,766. The rewritten section on Scope of Services was "revised to delete references to physical tasks while referring to assistance with both activities of daily living (ADLs) and instrumental activities of daily living (IADLs)."4 This change finally implemented the policy underlying OBRA 1993 to de-medicalize personal care services. The new manual section eliminates the distinction found in the previous version of Section 4480 between "housekeeping chores" on the one hand and "hands-on" paramedical or nurse's aide services on the other: C. Scope of Services - Personal care services (also known in States by other names such as personal attendant services, personal assistance services, or attendant care services, etc.) covered under a State's program may include a range of human assistance provided to persons with disabilities and chronic conditions of all ages which enables them to accomplish tasks that they would normally do for themselves if they did not have a disability. Assistance may be in the form of hands-on assistance (actually performing a personal care task for a person) or cuing so that the person performs the task by him/her self. Such assistance most often relates to performance of ADLs [activities of daily living] or IADLs [instrumental activities of daily living]. ADLs include eating, bathing, and dressing, toileting, transferring, and maintaining continence. IADLs capture more complex life activities and include personal hygiene, light housework, laundry, meal preparation, transportation, grocery shopping, using the telephone, medication management, and money management. Personal care services can be provided on a continuing basis or on episodic occasions. . . . Section 4480, CMS State Medicaid Manual (emphasis added). Conclusion The State Plan should be amended immediately and retroactively to delete that reference in line with current CMS policy. If this is done without delay, California could collect FMAP at least for this fiscal year on cases where only domestic and related services are currently authorized. It is also important to advise counties of the change. Our experience is that county workers strain to find some sort of nonmedical personal care need in order to bring the case under the Medi-Cal personal care services program for the benefit of the reduced county match. They need to know that that is no longer necessary. 1 This opinion letter was triggered by Charlene Harrington's questioning of the continuing applicability of the old ancillary or incidental limitation on domestic and related services under the Medi-Cal personal care services program. 2 The decision invalidated those parts of Minnesota's State Plan that allowed the personal care services provider to accompany the person with a disability out into the community. Minnesota fixed the problem for its state alone through a subsequent COBRA provision. 3 Prior to the issuance of the rewrite of State Medicaid Manual Section 4480 by Transmittal No 67 (April 1995), my recollection is that "homemaker chore" services were covered under Medicaid only to the extent they were ancillary or incidental to what is covered in our Medi-Cal personal care services program as nonmedical personal care services.3 The pre-1995 personal care services section of the State Medicaid Manual was less restrictive than apparently Section 5-140-00 of the old Medical Assistance Manual. 4 62 Fed. Reg. 47896, 47898 (September 11, 1996) (Comment and Response) LOS ANGELES LEGAL OFFICE
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