It's a little like the Monty Python skit where the guy keeps hopping out of the wheelbarrow during the Black Plague, saying, "I'm not dead yet."
Well, adult day health care isn't quite dead yet in California.
The elimination date to end the program is Sept. 1, but a lawsuit to halt that elimination just got a big boost from the federal Department of Justice, which filed an amicus brief in support of the ADHC program.
A final hearing in federal appeals court is set for July 26.
"We have the DOJ now, and their interpretation is consistent with ours," attorney Elissa Gershon of Disability Rights California said. "That will hopefully help the judge file in our favor."
The state hopes to save $169 million a year by cutting the ADHC program. In the final budget, $85 million is earmarked to launch a new, half-price adult day health care program, called Keeping Adults Free from Institutions (KAFI). But Gov. Jerry Brown (D) vetoed the language tying that funding to the new program, so legislators are busy this week trying to come to some kind of agreement with the governor about creating a new program.
According to Gershon, that half-cost program wouldn't be adequate. "Half the money would be half the people, at best," she said. "What happens to the other half of all of those people?"
Complicating the upcoming decision is that CMS already has approved the Sept. 1 elimination date.
That creates an interesting dynamic, where one federal agency approves elimination, and another one is against it.
But CMS made a decision on Medicaid law, Gershon said, while DOJ put its weight behind the Americans with Disabilities Act.
"The CMS made it really clear they weren’t weighing in on the ADA," Gershon said, "only on the Medicaid law."
That Sept. 1 deadline approved by CMS is actually a little fungible, Gershon said.
"We wrote a letter last week to the CMS, asking about the elimination date, and they responded that, yes, they would consider extending the date."
So the argument may come down to dollars, and whether the state has the authority and urgent need to save $169 million. If advocates can show that the state actually might not save much money -- due to increased costs associated with nursing home admissions, primarily -- then the judge could decide to salvage the entire program.
The decision expected on July 26 could be delayed a day or two, but time becomes an important factor, since ADHC centers would need 30 days notice to know whether or not they will continue operations in September.