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parental co-pay advocacy |
Advocacy Tool Kit
for Public Comments on the
Parental Co-Pay Regulations
The purpose of this tool kit is to inform our constituents about the public comment process for the
regulations to implement the parental co-pay law approved during the last
budget session. While The Arc of California continues to believe the
parental co-pay is harmful to the Lanterman Act, our constituents, and their
families and supporters, this is NOT the forum for changing this law.
However, it is intended to help our constituents in participating in the
public comment process to ensure the implementation of this law does not
have additional unintended consequences.
Information
Visit DDS at
http://www.dds.cahwnet.gov/fcpp/index.cfm
or download the following documents for
more information.
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Notice of Proposed Rulemaking
posted 1/11/05
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Initial Statement of Reason
posted 1/11/05
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Regulations Text posted
1/11/05
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Draft Family Participation Proposal
(12/08/04)
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Program Guide
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FAQs
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Calculator
WIC & Title 17 Side by Side Comparison
Background
Why The Arc Opposed the Co-Pay
The
Regulations process
Preliminary
Activities
Public Comment Period
Office of Administrative Law (OAL) Advice on Effective
Comments
Standards for
Regulations
Questions Addressed by OAL in Evaluating Proposed
Regulations
Public Comments
from other advocates
California Rehabilitation Association (CRA)
People First of California
Background
top of page
Throughout the legislative process this year The Arc of California
consistently opposed the budget proposal to implement a co-pay for services
families received from the regional center. The proposal was amended
several times throughout the year limiting the services requiring payments
to respite, day care, and camp. Changes also include, increasing the co-pay
scale to begin at 400% of federal poverty from 200% and allowing for a
deduction in eligibility income to account for emergency medical care
expenses. While some advocates supported the co-pay proposal as amended by
the Senate, The Arc of California and many of our constituents continued to
write and call our elected officials to urge their opposition to the
co-pay.
Towards
the end of the legislative session the Budget Conference Committee
reconciled the Senate and Assembly proposals (Item 4300, Department of
Developmental Services, Issue 178, Page 138) and agreed to the Senate
version which included all the accommodations listed above. In late July
2004 the governor signed the state budget which included the Senate version
of the co-pay proposal. While several budget proposals were defeated
throughout the process the co-pay was the system’s remaining defeat we felt
could be harmful to people with developmental disabilities and their
families.
Our reasons
for opposing the co-pay are as follows:
top of page
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This
proposal does not contain a cost differential for families living in
high cost of living (housing, fuel, energy) areas of the state.
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It is
clearly a violation of the principles of the Lanterman Act because a
disabled child’s access to respite, camp and appropriate day care
services would no longer be based upon a documented need identified in
the IPP, but on a family’s decision to either pay a fee or agree to a
reduction in the amount of the needed services identified in the child’s
IPP.
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It is
also troublesome to envision an IPP process with a circle of support
(i.e., family, friends, providers, etc.) discussing confidential
financial information and considering that information to determine a
consumer’s individualized needs.
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Some
families may not be able or willing to provide income verification.
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In
the event of non-payment, requiring a service provider to either bill
the family or reduce the level of service doesn’t a) consider the
operational or administrative cost to the provider, or b) acknowledge
the negative impact on the relationship between a provider and family.
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There
is no safeguard in place to prevent the future Administrations from
adding more service categories, lowering the base federal poverty level,
increasing fees, or removing due process rights – now or in the future.
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Just
as the general population would be appalled if California proposed a
co-pay for entitled services such as such elementary school or public
safety so should we be dismayed at the department’s co-pay proposal for
any service entitled under Lanterman.
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We
urge the committee to reexamine the parental co-pay policy and reject
the policy and the half million dollars plus cost associated with
regional centers implementation
Preliminary Activities
top of page
The
Department of Developmental Services (DDS) initiated the option of involving
the public in preliminary activities well before the start of the formal
rulemaking process. This was done through the use of stakeholder groups
along with notice on the DDS website with contact names for submitting
comments.
Public Comment Period
top of page
The 45
day public comment period starts when the “notice of proposed rulemaking” is
published in the California Regulatory Notice Register. The department has
the option to schedule a public hearing to provide additional public
comments. If DDS makes modifications or relies on new materials then there
will be a 15 day opportunity to provide comments.
Office of Administrative Law (OAL) Advice on Effective Comments
top of page
Effective
comments are based on:
1.
An understanding
of the statutes and factual material the agency relies on in proposing the
regulation,
2.
An understanding
of what the proposed regulation is intended to do,
3.
An understanding
of the standards the regulation must satisfy.
4.
“The
response to comments in the final statement of reasons must demonstrate that
each relevant, timely comment has been considered.”
Standards for Regulations
top of page
1.
A regulation must
be easily understandable, have a rationale, and be the least burdensome,
effective alternative.
2.
A regulation
cannot alter, amend, enlarge, or restrict a statute, or be inconsistent or
in conflict with a statute.
Questions Addressed by OAL in Evaluating Proposed Regulations
top of page
1.
Directly related
existing laws and regulations and effect of proposed regulations concisely
and clearly summarized?
2.
Broad, and, if
appropriate, specific objectives explained?
3.
In plain English?
4.
Format similar to
Legislative Counsel digest? (11346.5(a)(3))
5.
Significant
difference from existing, comparable federal regulation or statute
described? Citation to federal regulation or statute included?
(11346.5(a)(3))
Parental Co-Pay
WIC & Title 17 Side by Side
top of page
Co-Pay language in W&I Code 4783 |
Proposed Regulation Language-12/04 |
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TITLE 17, CALIFORNIA CODE OF REGULATIONS-DIVISION
2. DEPARTMENT OF DEVELOPMENTAL SERVICES
Subchapter 2.5, Family Cost Participation
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Article 1. General
Section 50243. Authority
These regulations implement and make specific the provisions of
Section 4783 of the Welfare and Institutions Code related to the
Family Cost Participation Program.
Note: Authority cited: Section 4783, Welfare and Institutions Code. |
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4783. (a) (1)
The Family Cost Participation Program is hereby created in the State
Department of Developmental Services for the purpose of assessing a
cost participation to parents, as defined in Section 50215 of Title
17 of the California Code of Regulations, who have a child to whom
all of the following applies:
(A) The child
has a developmental disability.
(B) The child
is three years of age through 17 years of age.
(C) The child
lives in the parents' home.
(D) The child
receives services and supports purchased through the regional
center.
(E) The child
is not eligible for Medi-Cal. |
Section 50247 Medi-Cal Eligible Consumers
Medi-Cal eligible includes consumers who are institutionally deemed.
The term "institutionally deemed" means that the income and
resources of a parent are not deemed to the consumer, therefore
making the consumer eligible for Medi-Cal if all other Medi-Cal
eligibility criteria are met.
Note: Authority
cited: Section 4783, Welfare and Institutions Code. Reference:
Section 1915 (c)(3), Social Security Act, and Section 4442.2,
California State Medicaid Manual. |
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Section
50263. Waiver Exemption.
Parents whose
child is Institutionally Deemed Medi-Cal eligible, shall be exempt
from the Family Cost Participation Program for that child.
Note: Authority
cited: Section 4783, Welfare and Institutions Code. Reference:
Section 4442.2, California State Medicaid Manual, Section 1915 |
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Article 2. Definitions
Section 50245. Developmental Disability.
For the purposes of these regulations, the term "developmental
disability" shall have the same meaning as provided in Section 4512
of the Welfare and Institutions Code.
Note: Authority cited: Section 4783, Welfare and Institutions Code.
Reference: Section 4512, Welfare and Institutions Code |
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4783(a)(2)
Notwithstanding any other provision of law, a parent described in
subdivision (a) shall participate in the Family Cost Participation
Program established pursuant to this section. |
Section
50262. Confidentiality and Retention of Income Documentation By
Regional Center
(a) Any
documentation submitted pursuant to Sections 50261, 50265, or 50267
shall be considered records obtained in the course of providing
intake, assessment, and services and shall be confidential pursuant
to Section 4514 of the Welfare & Institutions Code.
(b) Any
documentation submitted pursuant to Sections 50261, 50265, or
50267, any documents relied on by the executive director pursuant to
50265, and correspondence from the regional center, shall be
retained by the regional center for 3 years.
NO CITATION
NOTED |
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4783(b)(1) The
department shall develop and establish a Family Cost Participation
Schedule that shall be used by regional centers to assess the
parents' cost participation. The schedule shall consist of a sliding
scale for families with an annual gross income not less than 400
percent of the federal poverty guideline, and be adjusted for the
level of annual gross income and the number of persons living in the
family home. |
Section
50249. Family Cost Participation Schedule
The Family Cost
Participation Schedule means the official table developed by the
Department of Developmental Services and used by the regional
centers to determine the amount of family cost participation. This
table is reflective of the Federal Poverty Guidelines as adjusted
for family size and scaled by income levels and establishes the
lowest family cost participation at five percent( 5%). The
Department of Developmental Services shall adjust this schedule
consistent with changes in the Federal Poverty Guidelines but not
more often than once each calendar year.
Note: Authority
cited: Section 4783, Welfare and Institutions Code. |
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4783(b)(2) The
schedule established pursuant to this section shall be exempt from
the rulemaking provisions of Chapter 3.5 (commencing with Section
11340) of Part 1 of Division 3 of Title 2 of the Government Code. |
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4783(c) Family
cost participation assessments shall only be applied to respite, day
care, and camping services that are included in the child's
individual program plan. |
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Article 3. Administrative Provisions---Section 50255. Parent
Responsible for Cost Participation.
(a) The parents
of a child who meet the definition under Section 4783 (a)(1) of the
Welfare & Institutions Code shall be jointly and severally
responsible for the assessed amount of family cost participation.
However, in the case of a divorce, legal separation, or established
paternity, the family cost participation assessment shall be
computed on the gross annual income of both parents unless
inconsistent with a court order stating otherwise.
(b) This program
shall not exempt parents from responsibilities for day care pursuant
to Section 4685(c)(6) of the Welfare and Institution Code.
Note: Authority
Cited: Section 4783, Welfare and Institutions Code. |
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4783(d)
If there is more than one minor child living in the parents' home
and receiving services or supports paid for by the regional center,
or living in a 24-hour out-of-home facility, including a
developmental center, the assessed amount shall be adjusted as
follows:
(1)A parent
that meets the criteria specified in subdivision (b) with two
children shall be assessed at 75 percent of the respite, day care,
and camping services in each child's individual program plan for
each child living at home.
(2)A parent
that meets the criteria specified in subdivision (b) with three
children shall be assessed at 50 percent of the respite, day care,
and camping services included in each child's individual program
plan for each child living at home.
(3)A parent
that meets the criteria specified in subdivision (b) with four
children shall be assessed 25 percent of the respite, day care, and
camping services included in each child's individual program plan
for each child living at home.
(4) A parent
that meets the criteria specified in subdivision (b) with more than
four children shall be exempt from participation in the Family Cost
Participation Program. |
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4783(e) For
each child, the amount of cost participation shall be less than the
amount of the parental fee that the parent would pay if the child
lived in a 24-hour, out-of-home facility. |
Article 4 Assessment of the Family Cost Participation--Section
50259.Assessment of the Family Cost Participation.
a) The amount
of the family cost participation shall not impact any services other
than those identified in Section 4783 (c) of the Welfare and
Institutions Code
(b) Reductions
in the assessed amount pursuant to Section 4783 (d)(1)(2)(3) and (4)
of the Welfare and Institutions Code, because of multiple minor
children receiving services, shall only be applied to the Family
Cost Participation Program assessment and shall not reduce the fees
for consumers in 24-hour out-of-home placements as determined
pursuant to Sections 4677, 4782, and 4784 of the Welfare and
Institutions Code.
Note: Authority
cited: Section 4783, Welfare and Institutions Code. Reference:
Sections 4677, 4782, and 4784, Welfare and Institutions Code. |
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4783(f)
Commencing January 1, 2005, each regional center shall be
responsible for administering the Family Cost Participation Program. |
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4783(g)(1)
Family cost participation assessments or reassessments shall be
conducted as follows:
(A) By December
31, 2005, a regional center shall assess the cost participation for
all parents of current consumers who meet the criteria specified in
this section. A regional center shall use the most recent individual
program plan for this purpose.
(B) A regional
center shall assess the cost participation for parents of newly
identified consumers at the time of the initial individual program
plan.
(C)
Reassessments for cost participation shall be conducted as part of
the individual program plan review pursuant to subdivision (b) of
Section 4646.
(D) The parents
are responsible for notifying the regional center when a change in
family income occurs that would result in a change in the assessed
amount of cost participation. |
Section 50267. Assessment and Reassessment of Cost Participation.
(a) The original
amount of the family cost participation shall be assessed
upon completion of the initial
Individual Program Plan and reassessed every third year thereafter
to coincide with the review of the consumer’s Individual Program
Plan, pursuant to Section 4646 (b) of the Welfare and Institutions
Code
(b) Family cost participation
assessments may be reduced or increased if there is an ongoing
reduction or increase in the gross annual income upon which the
amount of the family cost participation was determined, or a
reduction or increase in the amount of services provided to the
consumer pursuant to a change in the Individual Program Plan, or a
change in family size.
Note:
Authority cited: Section 4783, Welfare and Institutions Code.
Reference: Section 4646 (b), Welfare and Institutions Code |
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4783(g)(2)
Parents shall self-certify their gross annual income to the regional
center by providing copies of W-2 Wage Earners Statements, payroll
stubs, a copy of the prior year's state income tax return, or other
documents and proof of other income. |
Section 50251. Annual Gross Family Income
Gross annual
income is the income of the parents as reported on their latest
California State or Federal Income Tax return and includes any money
or benefit acquired, earned, or received as payment for labor or
services, supports, or return on investments. Income from the
operation of a business or from self-employment is the net income
after deducting business expenses. Depreciation, amortization, and
depletion shall not be allowed as business expense deductions.
The regional center executive director may determine appropriate
documentation necessary for family cost participation consistent
with Section 4783 (g)(2).
Note: Authority
cited: Section 4783, Welfare and Institutions Code. |
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4783(g)(3) A
regional center shall notify parents of the parents' assessed cost
participation within 10 working days of receipt of the parents'
complete income documentation. |
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Section 5025. Persons Living In The Family Home
Persons living
in the family home is any person who depends on the gross annual
income of the parents for more than one-half of his/her support.
Note: Authority
cited: Section 4783, Welfare and Institutions Code. |
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4783(g)(4)
Parents who have not provided copies of income documentation
pursuant to paragraph (2) shall be assessed the maximum cost
participation based on the highest income level adjusted for family
size until such time as the appropriate income documentation is
provided. Parents who subsequently provide income
documentation that results in a reduction in their cost
participation shall be reimbursed for the actual cost difference
incurred for services identified in the individual program plan for
respite, day care, and camping services, for 90 calendar days
preceding the reassessment. The actual cost difference is the
difference between the maximum cost participation originally
assessed and the reassessed amount using the parents' complete
income documentation that is substantiated with receipts showing
that the services have been purchased by the parents. |
§ 50261. Maximum Family Cost
Participation Assessment.
(a) Each parent shall provide the
regional center with his or her proof of gross annual income
pursuant to Section 4783 (g)(2) and (i) of the Welfare and
Institutions Code, within ten (10) working days from the date of the
parents’ signatures on the Individual Program Plan. Failure to
provide the information will result in the regional center setting
the cost participation at the maximum amount, pursuant to Section
4783 (g)(4) of the Welfare and Institutions Code.
(b) The Individual Program Plan
signature page shall include a statement indicating that the
regional center shall fund respite, day care, and camping services
consistent with the Family Cost Participation Program, if
applicable.
Note:
Authority cited: Section 4783, Welfare and Institutions Code. |
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4783(g)(5) The
executive director of the regional center may grant a cost
participation adjustment for parents who incur an unavoidable
and uninsured catastrophic loss with direct economic impact on the
family or who substantiate, with receipts, significant unreimbursed
medical costs associated with care for a child who is a regional
center consumer. A redetermination of the cost participation
adjustment shall be made at least annually. |
Section
50265. Adjustment By Regional Center Executive Director
(a) Adjustment
to the assessed amount of the family cost participation may be made
by the regional center executive director for a substantiated
unavoidable and uninsured catastrophic loss that would temporarily
limit the ability of the parents to pay and create a direct economic
impact if the amount of the family cost participation were not
reduced. Unavoidable and uninsured catastrophic losses may
include, but are not limited to, natural disasters, an accident or
major injuries to an immediate family member, or extraordinary
medical expenses.
b) Direct economic impact means that
the result of not granting the adjustment would deprive the family
of what is needed for basic family necessities, including but not
limited to, food, shelter, clothing, or medical care. A direct
economic impact is a substantial change that impacts more than just
the family’s standard of living.
(c) Adjustments made pursuant to
this Section shall be calculated by deducting the documented
non-reimbursed dollar cost of the direct economic
impact request from the gross annual
income, and then re-assessing the amount of family cost
participation by applying the Family Cost Participation Schedule
against the reduced income amount.
(d) Family cost participation
assessments that have been adjusted as a result of the regional
center executive director granting an adjustment shall be
re-determined at least annually.
Note:
Authority cited: Section 4783, Welfare and Institutions Code |
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4783(h) A
provider of respite, day care, or camping services shall not charge
a rate for the parents' share of cost that is higher than the rate
paid by the regional center for its share of cost. |
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4783(i) The
department shall develop, and regional centers shall use, all forms
and documents necessary to administer the program established
pursuant to this section. The forms and documents shall be posted on
the department's Web site. A regional center shall provide
appropriate materials to parents at the initial individual program
plan meeting and subsequent individual program plan review meetings.
These materials shall include a description of the Family Cost
Participation Program. |
Section
50257. Program Administration
(a) The
Department of Developmental Services shall develop a pamphlet
describing the Family Cost Participation Program. Regional centers
shall provide the pamphlet to the parents of children, ages 3
through 17 years, during initial intake and assessment and at all
subsequent IPP review meetings where changes occur to day care,
camping or respite services.
(b) Regional
centers shall use all forms and documents developed by the
Department of Developmental Services to administer the Family Cost
Participation Program.
(c) Regional
centers are responsible for funding their authorized share of
services without regard to the family’s cost participation
assessment.
Note: Authority
cited: Section 4783, Welfare and Institutions Code. |
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4783(j) The
department shall include an audit of the Family Cost Participation
Program during its audit of a regional center. |
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4783(k) (1)
Parents may appeal an error in the amount of the parents' cost
participation to the executive director of the regional center
within 30 days of notification of the amount of the assessed cost
participation. The parents may appeal to the Director of
Developmental Services, or his or her designee, any decision by the
executive director made pursuant to this subdivision within 15 days
of receipt of the written decision of the executive director. |
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4783(k)(2)
Parents who dispute the decision of the executive director pursuant
to paragraph (5) of subdivision (g) shall have a right to a fair
hearing as described in, and the regional center shall provide
notice pursuant to, Chapter 7 (commencing with Section 4700). This
paragraph shall become inoperative on July 1, 2006. |
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4783(k)(3) On
and after July 1, 2006, a parent described in paragraph (2) shall
have the right to appeal the decision of the executive director to
the Director of Developmental Services, or his or her designee,
within 15 days of receipt of the written decision of the executive
director. |
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4783(k)(3)(l)
The department may adopt emergency regulations to implement this
section. The adoption, amendment, repeal, or re-adoption of a
regulation authorized by this section is deemed to be necessary for
the immediate preservation of the public peace, health and safety,
or general welfare, for purposes of Sections 11346.1 and 11349.6 of
the Government Code, and the department is hereby exempted from the
requirement that it describe specific facts showing the need for
immediate action. A certificate of compliance for these implementing
regulations shall be filed within 24 months following the adoption
of the first emergency regulations filed pursuant to this
subdivision. |
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4783(m) By April 1, 2005, and
annually thereafter, the department shall report to the appropriate
fiscal and policy committees of the Legislature on the status of the
implementation of the Family Cost Participation Program established
under this section. On and after April 1, 2006, the report shall
contain all of the following:
(1) The annual total purchase of
services savings attributable to the program per regional center.
(2) The annual costs to the
department and each regional center to administer the program.
(3) The number of families assessed
a cost participation per regional center.
(4) The number of cost participation
adjustments granted pursuant to paragraph (5) of subdivision (g) per
regional center.
(5) The number of appeals filed
pursuant to subdivision (k) and the number of those appeals granted,
modified, or denied.
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4783(n) This
section shall become inoperative on July 1, 2009, and, as of January
1, 2010, is repealed, unless a later enacted statute, that becomes
operative on or before January 1, 2010, deletes or extends the dates
on which it becomes inoperative and is repealed. |
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