Sb 843 Continuation of Shriver Act to Provide Tenants With Free Attorneys

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BUDGET, STATE; SOCIAL SERVICES;

February 25, 2009		2009-R-0120
PRELIMINARY SUMMARY OF SB 843, AN ACT IMPLEMENTING THE GOVERNOR'S BUDGET RECOMMENDATIONS CONCERNING SOCIAL SERVICES
By: Nicole Dube, Associate Analyst Robin K. Cohen, Principal Analyst

You asked for a preliminary analysis of SB 843, An Act Implementing the Governor ' s Budget Recommendations Concerning Social Services.

All provisions are effective July 1, 2009 except for the provision closing DCF ' s High Meadows facility (section 3), which is effective July 1, 2010, and provisions regarding benefit limits and prior authorization for dental coverage in certain state medical assistance programs (sections 44 and 67), which are effective upon passage.

�� 1, 8 — ELIMINATION OF MOST MEDICAL ASSISTANCE FOR LEGAL IMMIGRANTS

The bill eliminates most state-funded medical assistance coverage for legal immigrants and certain others who have lived in the U.S. for less than five years. (Once here for five years they generally qualify for federally funded assistance.)

Specifically, it eliminates the state-funded medical assistance (State-Funded Medical Assistance for Non-Citizens, SMANC) and HUSKY B programs established in 1997 to assist legal immigrants and certain other residents who are ineligible for Medicaid and the federal State Children ' s Health Insurance Program (SCHIP, HUSKY B in Connecticut) until they have lived in the U.S. for five years.

The bill apparently also prevents people losing their eligibility for the two state-funded programs from moving into the State-Administered General Assistance (SAGA) medical assistance program. Currently, people ineligible for Medicaid can qualify for SAGA medical assistance if they meet the program ' s financial eligibility criteria, regardless of their country of origin (see below). Under the bill, only those individuals who do not qualify for (1) Medicaid because they do not meet the federal program ' s categorically eligibility requirements (e.g., aged, blind, child under 19) or (2) HUSKY B can receive SAGA.

SAGA medical assistance will still be available to those legal immigrants who would not otherwise qualify for Medicaid or HUSKY B. The attorney general issued an opinion in 2004 stating that the state could not deny a state-funded program to one group of otherwise eligible individuals and not another. To do so would violate the equal protection clause of the U.S. Constitution. He asserted that denying the other programs (e.g., SMANC) would not be violative as they serve only legal immigrants. It is not clear whether this bill ' s provisions would pass constitutional muster.

Federal law requires states to provide emergency medical care to all immigrants, regardless of whether they are here legally. Also, the recently passed SCHIP reauthorization bill, PL 111-3, restores federal funding for Medicaid and HUSKY coverage for pregnant women and children who are recent immigrants. If the state chooses to cover these individuals, some of the people affected by the bill should be able to continue to get this coverage.

� 2 — NEXT STEPS SUPPORTIVE HOUSING INITIATIVE

The bill reduces, from $105 million to $75 million, the amount that the state can pay for annual debt service on bonds issued by the Connecticut Housing Finance Authority (CHFA) to finance the state ' s Next Steps Supportive Housing Initiative. (PA 08-123 increased the amount from $70 million to $105 million to fund an additional 150 housing units.) This initiative provides housing for people and families affected by psychiatric disabilities and chemical dependencies who are homeless or risk homelessness, and for supervised ex-offenders with mental health needs.

� 3 — CLOSURE OF DCF ' S HIGH MEADOWS RESIDENTIAL FACILITY

Effective July 1, 2010, the bill closes the Department of Children and Families ' (DCF) residential child care facility, High Meadows. High Meadows is located in Hamden and currently serves 34 children with behavioral and mental health problems and developmental disabilities.

�� 4-7 — COMMUNITY AND SOCIAL SERVICES BLOCK GRANT PROGRAM ESTABLISHED

The bill establishes a community and social services block grant program. DSS administers the program, whose goal is to respond to community health and social needs through a regionalized approach that provides community-based support and health services that maximize regional outcomes and benefits.

Definitions

The bill defines "community-based support services" to include:

1. services designed to support families and improve social environment quality;

2. programs to eliminate poverty;

3. substance abuse prevention and treatment;

4. counseling and case management services;

5. senior volunteer programs; and

6. youth services

The bill defines "health services" to include elderly health screenings, preventative disease clinics, nutritional and dietician services, and exercise programs. These definitions are not used again in the block grant process.

Regional Planning Councils

The bill requires the DSS commissioner to designate state planning regions and select regional planning council members, which may include existing regional planning agencies. He must certify that at least 60% of the region ' s towns are represented on the council and that they actively participate. Each council must conduct hearings to receive consumer and provider input on the region ' s health and social needs. Each council member has one vote.

When determining the block grant amount each regional planning council receives, the bill requires the commissioner to consult with the OPM secretary and consider the following factors: (1) population; (2) the state and regional fiscal and economic condition; and (3) the planning region ' s health and human services needs.

Area Service Allocation Plans

The bill requires each regional planning council to approve and submit an area service allocation plan to DSS and OPM according to a timeline and format DSS establishes. A council may submit its plan individually or jointly with another regional council.

Each plan must describe (1) the council ' s planning process to identify regional needs and set allocation priorities and (2) the programs and services to be funded and include (1) a detailed budget outlining the distribution and use of funds to be received and (2) outcome measures.

DSS must review, modify if appropriate, and approve each area plan and then submit it to the OPM secretary. The OPM secretary must then review each approved area plan, make any appropriate modifications, and incorporate them into a final approved block grant allocation plan. The secretary must then submit this plan to the Human Services committee. The committee has 30 days to notify the secretary and the governor of its approval or denial of the plan. If the committee does not act within 30 days, the plan is deemed approved.

Plan Implementation

In order to implement the approved community services block grant allocation plan, the bill allows the DSS commissioner to contract with and provide grant funds to municipalities; private organizations; regional planning agencies; other intertown, regional, or metropolitan agencies; or individuals.

The bill also requires all participating regional planning councils and organizations receiving block grant funds through the councils to comply with periodic reporting and performance evaluation requirements determined by the DSS commissioner.

�� 9-12 — EMPLOYMENT SERVICES BLOCK GRANT PROGRAM ESTABLISHED

The bill establishes an employment services block grant program. DSS administers the program, whose goal is to respond to community employment needs through a regionalized approach. The block grant will create and support programs and services that provide general employment and training services. The bill defines "employment and training services" to include (1) employment assistance and skill development services; (2) school-to-work transition services; and (3) job training and placement services.

The bill requires the employment services block grant program to be administered according to the same procedures and requirements as the Community and Social Services Block Grant program in sections 4-7 of the bill.

But, the bill erroneously requires the DSS commissioner to designate state planning regions and select regional planning council members in accordance with Section 18 of the bill. Section 18 is unrelated; section 4 appears to be the correct reference. Also, sections 5 and 10 are identical and appear to be duplicative.

�� 13, 15, AND 65 — MEDICARE PART D: LIMIT ENROLLMENT INTO BENCHMARK PLANS FOR FULL DUALLY ELIGIBLE AND CONNPACE RECIPIENTS; REQUIRE LIMITED CO-PAYMENTS

Connecticut ' s Medicare Part D recipients have the option to choose one of 47 prescription drug plans for their drugs. Currently, people who are eligible for both Medicare and full-benefit Medicaid (Medicaid pays for services that Medicare does not) can get help paying for their premiums and co-payments from the federal Low-Income Subsidy (LIS) Program. The federal premium payment, calculated annually, is limited--it only covers premiums for a "benchmark" prescription plan ($31.74 per month in 2009). If the dually eligible person picks a plan with a more expensive

premium, DSS pays the difference between the federal benchmark payment and the actual premium cost. The bill requires all dually eligible individuals to enroll in one of the benchmark plans (currently 21). A benchmark plan is one that offers basic Part D coverage with premiums equal to or lower than the regional low-income premium subsidy amount (calculated annually).

The bill also requires ConnPACE applicants and recipients to enroll in these benchmark plans. (Since some ConnPACE recipients are not eligible for Medicare (e.g., not receiving federal disability benefits for full two years), they presumably would not have to meet this requirement.)

In addition to paying the premiums for the fully dually eligible, DSS, by law, also pays Part D prescription co-payments. Under the bill, these individuals are responsible for paying up to $20 per month in co-payments, with DSS paying anything on top of that. These co-pays range from $1.10 to $6 in 2009 and are subsidized by the LIS program.

� 14 — SAGA WAIVER

By law, DSS was supposed to seek a federal waiver by January 1, 2008 to get the Medicaid program to pay for the SAGA medical assistance program for people with incomes up to 100% of the FPL. DSS never requested the waiver.

The bill instead requires DSS to study the impact of implementing such a waiver.

�� 16, 51 — NURSING HOME AND ICF-MR RATE FREEZES

The bill freezes at FY 09 levels, the Medicaid rates the state pays to nursing homes and intermediate care facilities for people with mental retardation (ICF-MR) in FY 10 and FY 11. It makes an exception to the freeze for facilities that have received interim rates. If that interim rate would have resulted in a lower rate on July 1, 2009, they will receive that lower rate.

The bill also eliminates fair rent increases to nursing home rates in FY 10 and FY 11. Current law requires DSS to add a fair rent increase to nursing home rates for homes that have undergone a material change in circumstances related to fair rent.

By law, DSS cannot re-base nursing home rates more frequently than once every two years and less frequently than once every four years (CGS Sec. 17b-340(f)(8)). Rates were last rebased in FY 06; the Governor ' s Current Services budget includes funding to rebase rates in FY 10 and for a 3% inflation increase in FY 11. It also includes funding for a 4.7% and 4.9% increase to ICF-MR rates in FY 10 and FY 11 respectively.

� 17 — CONNPACE: ASSET TEST, INCREASED REGISTRATION FEE, AND LIMITED NEW ENROLLMENT PERIOD

The ConnPACE program helps elderly and disabled individuals pay for their prescription drugs. For Medicare recipients, ConnPACE pays for items that their Part D plan does not cover. The bill imposes an asset test in the program. It limits assets to those allowed for the Medicare Part D Low-Income Subsidy, which are $12,510 for an individual and $25,010 for married couples in 2009. These limits are indexed for inflation each year.

The bill freezes the annual indexing of the program ' s income limit (currently $25,100 for single individuals and $33,800 for couples) until January 1, 2012. Currently, DSS increases the income limits each January 1 by the percentage increase in Social Security benefits.

The bill increases, from $30 to $45, the annual ConnPACE registration fee.

And beginning July 1, 2009, it limits new applications for ConnPACE (a program run within available appropriations) to the period between November 15 and December 30 of each year. This is the same enrollment period that the Medicare Part D program uses. But people can apply at other times of the year, provided it is within 31 days of either (1) turning age 65 or (2) becoming eligible for federal Social Security Disability Income (SSDI) or Supplemental Security Income (SSI) benefits.

�� 18, 46 — DSS PRESCRIPTION DRUG PROGRAMS

The bill makes a number of changes in how DSS provides coverage for prescription drugs in all of its medical assistance programs (e.g., Medicaid and HUSKY).

Over-the Counter Drugs

Under the bill, beginning July 1, 2009, DSS will no longer pay for over-the-counter (OTC) drugs, except (1) for insulin and insulin syringes and (2) as federal law requires. (Federal law requires covering OTC drugs for children under the age of 21 in the Medicaid (HUSKY A in Connecticut) program.)

Currently, DSS pays for selected OTC products in the Medicaid, HUSKY, SAGA, and Charter Oak Health Plans. It does not pay for them for ConnPACE recipients, with the exception of insulin and insulin syringes. DSS will pay for these drugs only when they are prescribed for a specific illness or condition by a licensed authorized practitioner.

Prior Authorization

Beginning July 1, 2009, the bill limits to a five-day supply the amount of drugs requiring prior authorization (PA) that pharmacists may dispense pending receipt of PA. In current practice, when a DSS drug assistance program client goes to the pharmacy with a new prescription requiring PA, the pharmacist can immediately dispense a 30-day supply without going through PA. On subsequent fills of the prescription, the electronic system will deny the request unless PA is obtained.

In general, pharmacists serving DSS pharmacy program clients must obtain PA whenever they dispense a brand-name drug when a chemically equivalent generic is available. If PA is not granted or denied within two hours it is deemed approved. By law, any drug not on DSS ' preferred drug list (PDL) is subject to PA.

The bill also permits DSS to require PA for (1) high-cost prescription individual drugs or drug classes, at the commissioner ' s discretion, effective July 1, 2010 and (2) "off –label" drugs prescribed for children under the age of 18, beginning July 1, 2010. The bill does not define "off-label," but a generally recognized meaning is a drug that is approved for certain clinical use but not the one for which it is prescribed.

It appears that the bill would require PA even for those drugs on DSS ' preferred drug list (PDL), which, by law, do not require PA.

Elimination of Mental Health Drug Exemption from Preferred Drug List

The bill eliminates mental-health-related drugs ' exemption from the PDL. This means that if a mental health drug is not on the PDL, PA is required for it. Antiretrovial drugs continue to be exempt.

�� 19, 20 — COST SHARING IN MEDICAID

To the extent federal law allows, the bill requires the DSS commissioner to impose cost-sharing requirements in the Medicaid program, but it limits to $20 the aggregate monthly amount clients must pay for prescription drugs. The bill prohibits DSS from charging co-payments for the following services:

1. inpatient hospitalization,

2. hospital emergency,

3. home health,

4. home- and community-based waiver services,

5. laboratory,

6. emergency ambulance, and

7. nonemergency medical transportation.

Federal law previously allowed states to impose only nominal cost sharing requirements on certain individuals, while prohibiting them altogether for others (e.g., children under age 18 and pregnant women). The 2005 federal Deficit Reduction Act loosened these restrictions. For example, states can require higher co-payments, and they can require families with incomes above 150% of the FPL to pay premiums. But no Medicaid recipient can be required to pay more than 5% of family income for premiums and cost-sharing charges.

The bill requires the DSS commissioner to amend the Medicaid state plan to require premiums for adults covered in the HUSKY A (Medicaid) program. Currently, adult caretaker relatives of children receiving HUSKY A can get coverage if their income is less than 185% of the FPL.

� 21 — NO MEDICAID PAYMENTS TO HOSPITALS FOR "NEVER EVENTS"

The bill requires the DSS commissioner to amend the Medicaid state plan to indicate that the approved inpatient hospital rates it pays for Medicaid-eligible patients are not applicable to hospital-acquired conditions that the Medicare program identifies as "nonpayable" (also called "never events") in accordance with a 2005 federal law.

The Deficit Reduction Act of 2005 required the Medicare agency, beginning October 1, 2008, to limit payments to hospitals for preventable medical errors that result in serious consequences for patients. Subsequently, the Medicare program has identified selected costly or common conditions that it considered to be reasonably preventable by following evidence-based guidelines, for example, a foreign object left in a patient ' s body following surgery. When such an event occurs, Medicare will not pay a hospital for any increased costs it incurs as a result of one of these events occurring (i.e., treating a condition that was not present when the patient was admitted to the hospital). But Medicare continues to pay for the physician and other covered items or service needed to treat the hospital-acquired condition.

�� 22, 52, 53 — RATE FREEZES FOR RESIDENTIAL CARE HOMES AND FACILITIES AND NEW HORIZONS, INC.

The bill freezes the rates the state pays to residential care homes and facilities and New Horizons, Inc. (a state-subsidized, independent living facility for people with severe physical disabilities, located in Farmington) at FY 09 levels in FY 10 and FY 11. It makes an exception to the freeze for facilities that have interim rates. If they would have received a lower rate on July 1, 2009 because of their interim rate status, they will receive that lower rate. Current law requires DSS to determine rates for these facilities annually.

�� 23-39 — CONNECTICUT FALSE CLAIMS ACT (FCA)

The bill creates a Connecticut False Claims Act. States that adopt their own act can keep a greater share of any Medicaid funds that they recover under it, as authorized under the 2005 Deficit Reduction Act.

Violations

The bill prohibits anyone from:

1. knowingly presenting, or causing to be presented to a state employee or officer, a false or fraudulent claim for payment or approval;

2. knowingly making, using, or causing to be made or used, a false record or statement to secure payment or approval of a false or fraudulent claim;

3. conspiring to defraud the state by securing the allowance or payment of a false or fraudulent claim;

4. having possession, custody, or control of property or money used, or to be used, by the state, and with intent to defraud the state or willfully conceal the property, deliver or cause to be delivered, less property than the amount for which the person receives a receipt or certificate;

5. being authorized to make or deliver a document certifying receipt of property used, or to be used, by the state and, intending to defraud the state, make or deliver such document without completely knowing that the information on it is true;

6. knowingly buying, or receiving as a pledge of an obligation or debt, public property from a state employee or officer, who may not legally sell or pledge the property; and

7. knowingly making, using, or causing to be made or used, a false record or statement to conceal, avoid, or decrease an obligation to pay or transmit money or property to the state.

Penalties

Anyone who violates any of the above provisions is liable for:

1. a civil penalty between $5,000 and $10,000;

2. three times the amount of damages that the state sustains due to the violation; and

3. the costs of investigating and prosecuting the violation.

The liability is joint and several for any violation committed by two or more people.

An individual faces a smaller penalty if a court finds that (1) the person committing the violation provided state investigators with all information he or she knew about the violation within 30 days after first obtaining that information; (2) the person fully cooperated with state investigators; and (3) at the time he or she provides the state the information, (a) no criminal, civil, or administrative actions have begun (see below) and (b) the person had no knowledge of an investigation. The court in these instances can assess a penalty of not less than twice the amount of damages.

Attorney General Initiated Civil Actions

The bill authorizes the attorney general to investigate any alleged violations. Information obtained during the investigations is exempt from disclosure under the state Freedom of Information Act. If the attorney general finds that a violation has occurred or is occurring, he can bring a civil action in Hartford Superior Court.

Other Civil Actions

The bill also authorizes any other person to bring a civil action against a violator in the state ' s behalf. These actions subsequently can be withdrawn only if the court and the attorney general give written consent and their reasons for doing so.

The person bringing the action must provide a copy of the complaint and written disclosure of substantially all material evidence and information he or she possesses by serving the attorney general in the same manner he is served when civil actions are brought against the state. Among other things, this includes leaving a true and attested copy of the process, including the declaration or complaint, at the attorney general ' s office in Hartford.

The complaint must be filed in camera (in private), must remain sealed for at least six days, and cannot be served on the defendant until a court orders it. The court, upon the attorney general ' s motion, can, for good cause, extend the time during which the complaint is sealed. The motion can be supported by in camera affidavits or other submissions. Before the sealed period ends, the attorney general must (1) proceed with the action, which he must conduct or (2) notify the court that he has declined to take over the action, in which case the person bringing the action can proceed.

If the court orders that the complaint be unsealed and served, the Superior Court must issue an appropriate order requiring the same notice that is ordinarily required to bring a civil action. The defendant cannot be required to respond to any complaint until 30 days after he or she is served. In these actions, only the state can intervene or bring a related action based on the facts underlying the pending action.

When Attorney General Elects to Proceed With or Withdraw From Action

If the attorney general elects to proceed with the action, he has the primary responsibility for prosecuting it and is not bound by any act of the person bringing it. But the person bringing the action has the right to continue as a party to it, subject to limits described below.

The bill authorizes the attorney general to withdraw the action regardless of any objections the person bringing it has if the attorney general notifies the person of his motion (presumably to withdraw) and the court has provided the person the opportunity for a hearing on the motion. Likewise, the attorney general can settle with the defendant even if the person bringing the action objects if the court, after a hearing, determines that the proposed settlement is fair, adequate, and reasonable under all the circumstances. If good cause can be shown, these hearings can be held in camera.

Proving Essential Elements Through Preponderance of Evidence

Under the bill, whoever brings the FCA action must prove all its essential elements, including damages, by a preponderance of the evidence.

The bill also specifies that regardless of any other contrary state law, a final judgment rendered in the state ' s favor against a defendant in any criminal proceeding charging fraud or false statements, whether after a trial, or pleas of guilty or no contest, estops the defendant from denying the essential elements of the offense in a civil action that involves the same transaction as in the criminal proceeding.

Court Limits on Person ' s Participation in Action

The bill gives the court discretion to impose limits on the person bringing the action ' s participation when either the attorney general or defendant can show cause. Specifically, the attorney general must show that unrestricted participation would (1) interfere with or unduly delay his prosecution of the case or (2) be repetitious, irrelevant, or for purposes of harassment. The defendant must show that unrestricted participation would be for purposes of harassment or would cause him or her undue burden or unnecessary expense. The court can limit (1) the number of witnesses the person can call, (2) the length of their testimony, and (3) cross-examination.

Rewards for Person Bringing Actions

The bill provides that if (1) the court awards civil penalties or damages to the state or (2) the attorney general settles and receives civil penalties or damages, the person bringing the action must receive between 15% and 25 % of the proceeds, based on the extent to which he or she substantially contributed to the prosecution.

When the court finds that the action is based primarily on disclosures or specific information relating to allegations or transactions (1) in a criminal, civil, or administrative hearing; (2) in a report, hearing, audit, or investigation conducted by the General Assembly or one of its committees, the state auditors, a state agency or quasi-public agency; or (3) from the news media, it may award the person amounts it deems appropriate, but no more than 10% of the proceeds, taking into account the significance of the information and the person ' s role in advancing the case to litigation.

In either instance, the person must also receive an amount for the reasonable expenses that the court finds he or she incurred necessarily, plus reasonable attorney fees and costs. The defendant must pay all of these expenses, fees, and costs.

When Attorney General Declines to Proceed

The bill gives the person bringing the action the right to conduct it when the attorney general declines to proceed. If the attorney general makes this decision and upon his request, the court must order that copies of all pleadings filed in the action and copies of any deposition transcripts be provided to the state. When the person proceeds with the action, the court, without limiting the person ' s status or rights, can permit the attorney general to intervene at a later date if he can show good cause.

Rewards. The bill provides rewards for people bringing these actions that the court decides are reasonable for collecting the civil penalty and damages. The award is between 25% and 30% of the proceeds. As with the actions the attorney general brings, the person must also be reimbursed for expenses and legal fees and costs.

When Defendant Prevails . Under the bill, if the defendant prevails in these actions, and the court finds that the person bringing the action is clearly frivolous or vexatious, or brought the action primarily to harass, the court can require the person to pay the defendant ' s attorney fees and expenses.

Stays of Discovery. The bill provides that regardless of whether the attorney general proceeds with an action, if he requests and can show that certain motions or requests for discovery by the person bringing the action would interfere with the state ' s investigation or prosecution of a criminal or civil matter arising from the same facts, the court can stay the discovery for up to 60 days. This showing must be done in camera. The court can extend the stay for an additional 60 days upon further in camera showing that the state has pursued the criminal or civil investigation or proceedings with reasonable diligence and any proposed discovery in the civil action will interfere with the ongoing investigation or proceedings. The bill allows the chief state ' s attorney or state ' s attorney for the appropriate judicial district to explain to the court the potential impact of the discovery on a pending criminal investigation or prosecution.

Alternate Means to Pursue State ' s Claim

The bill authorizes the attorney general to pursue the state ' s claim through any alternate remedy available to the state, including an administrative proceeding to determine a civil penalty. If he pursues an alternate remedy, the person bringing the action must have the same rights as he or she would have had if the action had continued in court. Any fact finding or conclusion of law made in an alternate proceeding that has become final must be conclusive on all parties to actions brought under other proceedings. A finding or conclusion is final if it has been finally determined on appeal to the appropriate state court, if the time for filing an appeal has expired, or if the finding or conclusion is not subject to judicial review.

When the Person Bringing the Action Planned or Initiated the Violation

The bill provides that if the court finds that the action was brought by someone who planned and initiated the violation upon which the action is brought, the court can reduce the share of the proceeds the bill would otherwise award him or her, taking into account the person ' s role in advancing the case to litigation and any relevant circumstances relating to the violation.

If the person bringing the action is convicted of criminal conduct arising from his or her role in the violation, he or she must be dismissed from the civil action and may not receive any share of the proceeds. These dismissals cannot prejudice the attorney general ' s right to continue the action.

Limited Court Jurisdiction

The bill provides that the court does not have jurisdiction over an action brought by a person (1) against a member of the General Assembly or the judiciary, an elected state officer or a state department head if the action is based on evidence or information known to the state when the action was brought; (2) that is based on allegations or transactions that are the subject of a civil suit or an administrative civil penalty proceeding in which the state is already a party; or (3) that is based on the public disclosure of allegations or transactions (a) in a criminal, civil, or administrative hearing; (b) in a report, hearing, audit, or investigation conducted by the General Assembly or one of its committees, the state auditors, a state agency, or quasi-public agency; or (c) from the news media unless the attorney general has brought the action or the person bringing the action is an original source of the information. An "original source" means an individual who has direct and independent knowledge of the information on which the allegations are based and has voluntarily provided it to the state before filing the action based on the information.

The court likewise has no jurisdiction over actions brought by a person who knew or had reason to know that the attorney general or another state law enforcement official knew of the allegations or transactions before the person filed the action or served the disclosure of material evidence.

No State Liability for Expenses Incurred by Individuals Bringing Actions

The bill provides that the state is not liable for expenses that a person bringing an action incurs.

Whistle-Blower Protections

The bill provides that any employee who is discharged, demoted, suspended, threatened, harassed, or in any other manner discriminated against by his or her employer because the employee lawfully acts on his, her, or others ' behalf in furthering one of the bill ' s actions, including investigation for, initiation of, testimony for, or assistance in, an action filed or to be filed under the bill is entitled to all relief necessary to make the employee whole.

This relief, which the employee can request through Superior Court, must include (1) reinstatement with the same seniority status that the employee would have had except for the discrimination and (2) twice the amount of any back pay, plus interest, and compensation for any special damages that the discrimination caused, including litigation costs and reasonable attorneys ' fees.

Statute of Limitations

The bill specifies that any FCA action it permits cannot be brought (1) more than six years after the date the violation occurs or (2) more than three years after the date when material facts are known or reasonably should have been known by the state official charged with acting on them, whichever occurs later, but in no event can the actions be brought more than 10 years after the date the violation is committed.

Non-Exclusivity of Remedies

The bill provides that its FCA provisions are not exclusive and that the remedies it provides are in addition to any remedies provided in any other provision of state, federal, or common law.

Authority for Attorney General to Act; Confidentiality of Records

By law, the attorney general has the power to summon witnesses and take other steps when investigating complaints brought to the state auditors against state or quasi-public agencies. The bill extends this authority to enable him to begin investigating suspected FCA violations until he files a civil action under the bill.

The bill also provides that neither the state auditors nor the attorney general, after receiving information under these FCA provisions, may disclose the identity of the person without his or her consent unless the auditors or attorney general determine that disclosure is unavoidable. By law they may withhold records of the investigation while it is occurring.

The bill also exempts from disclosure under the Freedom of Information Act records of an investigation or the name of an employee providing information under the FCA.

Related Bill

HB 6299, raised by the Government Administration and Elections Committee, also creates a state FCA.

� 40 — MEDICAID COVERAGE FOR INTERPRETER SERVICES FOR PEOPLE WITH LIMITED ENGLISH PROFICIENCY

The bill repeals a 2007 law that requires DSS to amend the Medicaid state plan to cover interpreter services for people with limited English proficiency (LEP). (Because the commissioner did not amend the state plan, PA 08-1, November Special Session, required him to do so by June 30, 2009.) Federal Medicaid law allows states to get federal matching funds for LEP interpreters either by designating them as (1) a covered state plan service or (2) an administrative cost. In Connecticut, the matching rate would be 50% of the state's cost for providing the interpreters.

Currently, DSS does not pay for medical interpreter services for Medicaid fee-for-service clients. Managed care plans serving HUSKY clients have a contractual obligation (based on federal requirements) to provide interpreters and their capitation payments include the costs of doing so. DSS receives a 50% federal match for the capitation payments but the interpreter services are not matched separately.

� 41 — FREEZE BENEFIT LEVELS IN TEMPORARY FAMILY ASSISTANCE (TFA) AND SAGA

The bill freezes for two years the benefit levels in the TFA and SAGA cash assistance programs.

� 42 — STATE SUPPLEMENT PROGRAM UNEARNED INCOME DISREGARD

The bill freezes the unearned income disregard and need standards in the State Supplement program (SSP) at FY 09 levels for FY 10 and FY 11. The SSP provides supplemental cash assistance to aged, blind, and disabled people receiving Social Security or Supplemental Security Income benefits.

Current law allows for increases in SSP benefits in two ways. First, it requires DSS to index the unearned income disregard for Social Security cost of living adjustments, if any. This allows any increases in a recipient ' s SSI benefits, which are considered unearned income, to be passed along and not affect the SSP benefit level. Second, it requires DSS to annually increase, up to 5%, the need standards based on the percentage increase in the Consumer Price Index for Urban Consumers. The need standards have been statutorily frozen since 1993.

� 43 — PASS-THROUGH OF CHILD SUPPORT FOR TEMPORARY FAMILY ASSISTANCE PARENTS

The bill increases, from the first $50 to $100, the child support income received that the DSS commissioner must disregard when determining a family ' s TFA eligibility and benefit levels. By law, applicants for TFA must have monthly income less than 100% of the FPL plus $90. DSS must consider any child support income above that level ($100 under the bill) it collects when determining eligibility but not when calculating benefit levels. DSS considers the excess reimbursement for assistance paid. But when the amount of current support collected exceeds the family ' s monthly TFA benefit plus the $100 (instead of $50), the current child support must be paid directly to the family and is counted when determining the benefit level.

Effective October 1, 2008, federal law no longer requires states to reimburse the federal government for one-half of the child support it collects and disregards on behalf of these families.

�� 44, 45, 67 — ADULT DENTAL COVERAGE IN MEDICAID AND SAGA LIMITED TO EMERGENCY CARE; ELIMINATION OF NONEMERGENCY MEDICAL TRANSPORTATION, AND VISION CARE FOR SAGA MEDICAL ASSISTANCE RECIPIENTS; PRIOR AUTHORIZATION FOR NONEMERGENCY DENTAL SERVICES

The bill requires the DSS commissioner, to the extent that federal law allows, to amend the Medicaid state plan to limit dental coverage for adults to emergency services. Medicaid will continue to pay for nonemergency dental services for individuals that the Department of Developmental Services (DDS) serves through its Medicaid home- and community-based services waiver.

The bill defines an "emergency condition" as a dental condition manifesting itself by acute symptoms, including severe pain, such that a prudent layperson possessing an average knowledge of health and medicine could reasonably expect the absence of immediate attention to result in (1) placing the health of the individual, or with respect to a pregnant woman, the health of her or her unborn fetus, in serious jeopardy; (2) cause serious impairment to body functions; or (3) cause serious dysfunction of any body organ or part.

The bill extends this same dental benefit limitation to the SAGA medical assistance program.

The bill subjects all nonemergency dental services provided under DSS ' dental programs to prior authorization. It requires the DSS commissioner periodically, but at least quarterly, to review payments for emergency dental services for appropriateness of payment. And it permits him to recoup payments for those services determined not to be for an emergency condition.

The bill also eliminates DSS ' ability, on a limited basis and within available appropriations, to provide medical transportation and vision care to SAGA medical assistance recipients. This authority was granted in 2006. While not in statute, DSS has been providing nonemergency transportation for cancer and dialysis treatment since eliminating it for all other services in 2002.

� 47 — REDUCTION IN PHARMACY REIMBURSEMENTS AND DISPENSING FEES

The bill reduces what DSS pays pharmacies for filing prescriptions for Medicaid, SAGA, ConnPACE, and Connecticut AIDS Drug Assistance Program clients. It reduces the reimbursement from the average wholesale price (AWP) minus 14% to the AWP minus 15%. By law, payments must be the lower of (1) the rate the federal Center for Medicare and Medicaid Services sets as the federal acquisition cost, (2) the average wholesale price (AWP) minus some percentage (currently 14%), or (3) an equivalent percentage established under the State Medicaid Plan.

The bill also reduces the pharmacy dispensing fee for DSS medical assistance programs from $3.15 to $2.15 per prescription. It adds SAGA to the list of state medical assistance programs the dispensing fee covers. Currently, it applies only to drugs provided under Medicaid, ConnPACE and Connecticut AIDS Drug Assistance. (Starting February 1, 2008, DSS "carved out" pharmacy benefits from the SAGA medical assistance program. The federally qualified health centers and other providers with which DSS contracted to run these programs had previously negotiated the pharmacy dispensing fee in a separate contract.)

� 48 — REMOVAL OF SELF-DECLARATION IN HUSKY A AND B

The bill removes the requirement that DSS or its "servicer," to the extent permitted by federal law, rely on information about family income that HUSKY A and B clients put on their applications for coverage continuation. The bill also removes the requirement that DSS annually review a random sample of cases to confirm that it is not giving HUSKY benefits to people who are ineligible.

� 49 — INCREASED PREMIUMS FOR CERTAIN HUSKY B PARTICIPANTS

The bill increases the premiums for HUSKY B families with incomes between 235% to 300% of the federal poverty level. These families (also referred to as "Band 2"), currently pay a $30 per child monthly premium ($50 per family). Under the bill, they must pay $50 per month for one child, $75 per month for two children, and $100 per month for three or more children. By law, total cost sharing, including premiums and co-payments, cannot exceed 5% of the family ' s gross income.

� 50 — DEFERRAL OF JUNE MEDICAID PAYMENTS TO NURSING HOMES

Beginning in 2010, the bill requires DSS to pay nursing homes half of their June Medicaid payment in July. Current law required this arrangement for fiscal years 1992 through 2007.

� 54 — STATE-FUNDED CONNECTICUT HOMECARE PROGRAM FOR ELDERS (CHCPE) CASELOAD FREEZE

The bill freezes the caseload for the state-funded portion of CHCPE at FY 09 levels for FY 10 and FY 11. CHCPE has both Medicaid- and state-funded components that pay for home- and community-based services for infirm elderly individuals who might otherwise require nursing home care.

�� 55-56 — MONEY FOLLOWS THE PERSON EXPANSION DELAY

Current law requires DSS to develop a plan to establish and implement a program similar to its Money Follows the Person (MFP) federal demonstration program. This program, also referred to as "MFP II," must provide home- and community-based long-term care services to adults (age 18 and older) who (1) are institutionalized or at risk of institutionalization and (2) meet the financial and level of care eligibility criteria established in CHCPE regulations. MFP II was created to allow adults who do not meet MFP ' s federally mandated six-month institutionalization requirement to receive similar services.

The bill extends from July 1, 2009 to July 1, 2011 the timetable for implementing the program, which DSS must include in its plan. The bill also postpones, from January 1, 2009 to January 1, 2012, the date by which the DSS commissioner must submit the plan, and any recommended legislation and funding for its implementation, to the Human Services and Appropriations committees.

By law, the committees have 60 days to approve, deny, or modify the plan. If approved, the bill postpones from July 1, 2009 to July 1, 2011, the date by which DSS must implement the plan, subject to available appropriations. The implementation date of July 1, 2011 appears to be an error since the bill makes the deadline for submitting the plan to the legislature July 1, 2012.

�� 57-58 — LONG-TERM CARE REINVESTMENT ACCOUNT

To the extent permitted by federal law, the bill postpones from July 1, 2009 until July 1, 2011, the establishment of a nonlapsing Long Term Care Reinvestment account in the General Fund to hold the enhanced federal matching funds the state receives for the MFP demonstration program. (MFP matching funds will go into the General Fund without restriction.) It also postpones, from January 1, 2010 to January 1, 2012, the date by which the DSS commissioner must begin reporting annually on expenditures from the account to the Human Services and Appropriations committees.

� 59 — SMALL HOUSE NURSING HOMES

The bill prohibits the DSS commissioner from approving more than one project under the Small House Nursing Home pilot program through June 30, 2011 and limits the number of beds under this project to 280. Current law requires the DSS commissioner to establish a pilot program, within existing appropriations, to help develop up to 10 small house nursing homes in the state.

The bill also requires the commissioner, when reviewing and selecting proposals, to consult with and receive approval from the OPM secretary. Currently, he must consult only with the Long-Term Care Planning Committee. It also removes the requirement that two of the 10 proposals selected must develop a small housing nursing home in a distressed municipality with more than 100,000 people. It instead allows the commissioner to give preference to such proposals.

� 60 — DEFINITION OF MEDICAL NECESSITY

By January 1, 2010, the bill requires DSS to amend its definition of "medical necessity" in the Medicaid program to conform with the SAGA medical assistance definition in state regulation.

Currently, DSS uses the following definition in both the Medicaid fee-for-service and HUSKY programs: Health care provided to correct or diminish the adverse effects of a medical condition or mental illness; to assist an individual in attaining or maintaining an optimal level of health; to diagnose a condition or prevent a medical condition or prevent a medical condition from occurring."

By contrast, the SAGA medical assistance regulations use this definition: "health services required to prevent, identify, diagnose, treat, rehabilitate, or ameliorate a health problem or its effects, or to maintain health and functioning, provided such services are:

1. consistent with generally accepted standards of medical practice,

2. clinically appropriate in terms of type, frequency, timing, site, and duration;

3. demonstrated through scientific evidence to be safe and effective and the least costly among similarly effective alternatives, where adequate scientific evidence exists; and

4. efficient in regard to the avoidance of waste and refraining from provision of services that, on the basis of the best available scientific evidence, are not likely to produce benefit."

� 61 — TRUSTS FOR STATE SUPPLEMENT APPLICANTS AND RECIPIENTS

In general, State Supplement applicants who transfer assets within 24 months before applying for assistance are presumed to have done so to qualify. Such transfers generally render the transferor ineligible for State Supplement for a period of time based on the value of the asset. But if the applicant can provide convincing evidence that the transfer was made for another reason, eligibility is not affected.

The bill adds a second exception by allowing transfers to "special needs trusts" by individuals who (1) are living in residential care homes (RCH) or New Horizons, Inc. (a facility for people with severe physical disabilities, located in Farmington) and (2) have available income that is above 300% of the maximum federal Supplemental Security Income (SSI) program benefit for an individual ($2,022 per month in 2009) and below the private rate that the RCH or New Horizons charges. Currently, an individual whose income exceeds 300% of the SSI benefit cannot qualify for State Supplement benefits.

The bill does not explicitly provide that individuals can have the excess income they deposit into them disregarded for purposes of State Supplement eligibility. So it appears that individuals who create these trusts could lose their eligibility on that basis.

The bill requires the trust to be funded solely with the individual's excess income. The trust must provide that once the individual dies, the state will receive all amounts remaining in it after the Medicaid program is reimbursed for Medicaid-funded services the individual received, up to an amount equaling the amount of State Supplement provided. The type of trust someone may establish is the same that federal law allows for purposes of Medicaid eligibility (42 USC � 1396p(d)(4)).

� 62 — MEDICATION ADMINISTRATION BY UNLICENSED PERSONNEL IN RESIDENTIAL CARE HOMES

The bill requires the DPH commissioner to include the following in regulations regarding medication administration by unlicensed personnel in RCHs:

1. the requirement that each RCH designate an appropriate number of unlicensed personnel to obtain certification to administer medication and ensure that they become certified;

2. criteria homes must use to determine the appropriate number of unlicensed personnel who will obtain certification; and

3. training requirements for certification of these unlicensed personnel.

It also requires that by January 1, 2010, each RCH ensure that the appropriate number of unlicensed personnel they determined actually obtain certification to administer medication. Once certified, they are able to administer medication to RCH residents.

Current law requires the commissioner to establish regulations allowing unlicensed personnel in RCHs to obtain certification to administer medication. The regulations must establish on-going training requirements, including initial orientation, residents ' rights, behavioral management, person care, nutrition and food safety, and general health and safety.

� 63 — INCREASE IN NUMBER OF CAPIAS OFFICERS

The bill increases, from four to six, the number of capias officers the commissioner of public safety may appoint as special policement in the Bureau of Child Support Enforcement to serve arrest warrants in child support matters.

� 64 — IMPLEMENTING POLICIES AND PROCEDURES

The bill permits the DSS commissioner to implement policies and procedures to administer several provisions in the bill while in the process of adopting them in regulation, provided notice is published in the Connecticut Law Journal no later than 20 days after they are implemented. The policies and procedures are valid until final regulations are adopted. It applies to all provisions in the bill except those pertaining to:

1. closure of DCF ' s High Meadows residential facility - �3;

2. cost-sharing requirements on Medicaid recipients - �19;

3. establishment HUSKY A premiums - �20;

4. inability to apply Medicaid inpatient hospital rates to certain hospital-acquired conditions - �21;

5. certain provisions of the Federal False Claims Act – ��38-39;

6. non-emergency dental coverage for adults in Medicaid and SAGA - �44;

7. DPH regulations regarding medication administration in residential care homes (RCH) by unlicensed personnel - �62;

8. DSS Bureau of Child Support Enforcement appointments - �63;

9. expiration of the Medicare Part D Supplemental Needs Fund - �66; and

10. prior authorization for nonemergency dental services - �67.

(The bill also erroneously applies this provision to CGS ��17-104 and 17-292. These sections no longer exist; 17b-104 and 17b-292 appear to be the correct references.)

� 66 — EXPIRATION OF MEDICARE PART D SUPPLEMENTAL NEEDS FUND

The bill eliminates the Medicare Part D Supplemental Needs Fund on July 1, 2009. DSS uses this fund, which is a General Fund account, to pay for drugs that are not on formularies for the Medicare-Medicaid dually eligible and ConnPACE recipients ' Part D plans when the recipients can show the medical necessity for obtaining them. It also makes a technical, conforming change.

The bill also allows DSS to pursue Medicare payment for prescriptions denied by Part D plans because they are not on the plan ' s formulary. Currently, DSS must implement a plan for pursuing these payments. By law, this remedy can include an independent review.

By law, DSS can authorize appeals beyond the independent review. The bill eliminates the requirement that if DSS determines that it is not cost effective to pursue these additional appeals, it must pay for the denied nonformulary drugs for the earlier of the rest of the calendar year or the approval of the drug, provided the beneficiary remains enrolled in the Part D plan that denied the coverage.

� 68 — ELIMINATION OF MEDICARE PART D IMPLEMENTATION COUNCIL

The bill repeals the law establishing a council to advise the DSS commissioner on matters relating to administering and implementing the Medicare Part D program.

ND:ak

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Source: https://www.cga.ct.gov/2009/rpt/2009-R-0120.htm

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