Court Orders California to Aid HIV Patients

By Aids Healthcare Foundation
12/03/2008
Los Angeles, California

In a sharp rebuke to California state health officials, the Superior Court of California, County of Los Angeles has ruled that the state’s Department of Health Care Services (DHCS) “…has arbitrarily failed to meet its statutory duties…” in implementing a landmark 2002 law intended to extend Medi-Cal (Medicaid) coverage to HIV-positive Californians. The ruling came in a case, ‘Weinstein, et al vs. California Department of Health Services et al’ (case number BS 108234) filed by AIDS Healthcare Foundation (AHF) which sought to compel the Department of Health Care Services to comply with legislation intended to extend Medi-Cal coverage to HIV-positive individuals who would otherwise qualify for Medi-Cal. Prior to the passage and signing of the legislation (AB 2197, codified at Welfare and Institutions sections 14149 and 14149.3) primarily only those people with HIV whose health had deteriorated to a diagnosis of AIDS were eligible for Medi-Cal coverage.

The California Legislature passed AB 2197 in 2002. The bill, which took effect January 1, 2003, was designed to expand Medi-Cal coverage to those Californians who have tested positive for HIV, but who were not sick enough to qualify for Medi-Cal. The legislation sought to address the growing health care disparity among those Medi-Cal eligible Californians with an AIDS diagnosis, and those HIV positive individuals who would otherwise qualify for Medi-Cal (based on low-income and other criteria), but because they have not yet developed AIDS, were deemed ineligible for Medi-Cal. Because they are ineligible for Medi-Cal, these individuals must pay for HIV treatment on their own (or forego care and treatment) while waiting until they develop AIDS to obtain access to Medi-Cal benefits. At that point, not only has their health deteriorated gravely, their health care and treatment becomes far more expensive than it would be if they had received proper care.

“AB 2197 was intended to help HIV-positive Californians access lifesaving care before they actually progress to an AIDS diagnosis. It borders on criminal that more than six years later, California is still no closer to implementing this crucial—and ultimately cost-saving—health care legislation,” said Michael Weinstein, AIDS Healthcare Foundation President. “This ruling leaves no doubt whatsoever that California’s Department of Health Services has failed to meet its statutory duties on AB 2197. We thank the court for granting our petition for writ of mandate to compel the state to finally comply with and implement this law.”

“Six years after the Legislature passed this law, this lifesaving health care measure remains at a standstill because the state has failed to enact and implement this law,” said Tom Myers, General Counsel and Chief of Public Affairs for AIDS Healthcare Foundation, the US’ largest HIV/AIDS organization, which operates AIDS treatment clinics in the US, Africa, Latin America/Caribbean and Asia—including 12 clinics in California. “It does HIV-infected Californians absolutely no good to have such visionary legislation if state bureaucrats are unable or unwilling implement the law. This writ of mandate reinforces the idea that the state has to obey all its laws, not just those that it picks and chooses.”

The Need for Care for HIV-infected Individuals in the Early Stages of the Disease
AB 2197 came about in part in response to a call by the federal centers for Medicare and Medicaid Services for states to seek waivers to extend healthcare services to low-income individuals in the early stages of HIV. As written and signed into law back in 2002, AB 2197 directs California’s Department of Health Services to, among other things:

• Determine whether, under applicable Federal law, the federal government will contribute financially for the enrollment and maintenance of these beneficiaries in the Medi-Cal program;
• Seek from the federal government a waiver of requirements for the Medi-Cal program, such that California may implement this program;
• Actively encourage Medi-Cal recipients with AIDS to voluntarily enroll in Medi-Cal managed care programs;
• Utilize the savings generated by such enrolments to fund the coverage of otherwise eligible persons with HIV into the Medi-cal program.

“We know the vast majority of HIV-positive individuals can lead longer, healthier lives if they are in care and on treatment, so I’d urge state officials to quickly comply with the court ruling and honor the intent of this legislation,” said Dr. Homayoon Khanlou, Chief of Medicine/US for AIDS Healthcare Foundation.

History of California Assembly Bill 2197
In 2002, California Governor Gray Davis signed Assembly Bill 2197. The bill, which had been introduced twice before in the California legislature in various versions as far back as 1997, honored a campaign pledge Davis made during his first California gubernatorial campaign.

At the time of its passage, AB 2197’s author, Assembly Member Paul Koretz (D, West Hollywood—retired), said, “This bill is a win-win for the state and for persons living with HIV. It will provide access to more reliable, stable health care for these individuals at no additional cost to the state. The strong bi-partisan support this bill has received is testament to the fact that it is a very sensible, cost-effective approach to improving access to health care.”

AB 2197 had been the highest priority that legislative year for California’s leading AIDS organizations—including the Southern California HIV Advocacy Coalition (SCHAC), (the sponsor of the bill) representing 10,000 individuals throughout the Southland, and AIDS Healthcare Foundation (AHF), the nation’s largest specialty provider of HIV/AIDS medical care with clinics in Southern and Northern California.

AB 2197 extends Medi-Cal eligibility to Californians who are HIV positive, but do not yet have an AIDS defining illness. Previously, only Californians with an AIDS diagnosis (those who have progressed clinically from being HIV positive to having an AIDS defining illness) could be considered for Medi-Cal eligibility. As a result, many HIV-positive Californians had to progress to an AIDS diagnosis—in essence get sicker, in order to then access care—via Medi-Cal. Sadly, because of the state’s failure to comply with AB 2197 almost five years after its passage, this still largely remains the case today.

AB 2197 Enjoyed Widespread Editorial Support From State’s Top Newspapers in 2002
In addition to widespread support from numerous community and health organizations throughout the state, AB 2197 also received enthusiastic editorial endorsements from many of the state’s top newspapers. The editorial pages of two of California’s most-respected and widely-read newspapers— the Los Angeles Times and the San Jose Mercury News—each supported AB 2197 and asked for the Governor’s timely signature on the bill.

The Times’ editorial pointed out, “The law is written to preclude costing the state additional money. By giving patients access to drugs and care otherwise unavailable, the bill would extend their lives and on-the-job productivity,” (September 10 2002 editorial, “A few Good Measures”).

The Mercury News’ headline underscored a critical element of the bill—“Healthy Legislation: It’s Not Always Expensive,” (September 10 2002 editorial). AB 2197 had been written to be cost neutral, an even more important consideration in light of the $30 billion dollar budget crisis facing the state at that time.

The San Diego Union-Tribune and the San Francisco Chronicle also endorsed AB 2197. Urging “swift approval” of this “no-brainer” bill, the Union-Tribune noted that it “would cost the state general fund virtually nothing” in this budget deficit year while helping an estimated 10,000 people, many of them Latinos, blacks, and other minorities “who are falling through the cracks of the health care system” (July 20 editorial, “AIDS Prevention: Measure Would Extend Medical Benefits”). The Chronicle called AB 2197 a “matter of compassion and fiscal prudence,” (July 18 editorial, “Earlier HIV Treatment”).