BILL ANALYSIS Ó
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Date of Hearing: April 2, 2013
ASSEMBLY COMMITTEE ON HEALTH
Richard Pan, Chair
AB 1263 (John A. Pérez) - As Amended: March 21, 2013
SUBJECT : Medi-Cal: CommuniCal.
SUMMARY : Establishes the Medi-Cal Patient Centered
Communication (CommuniCal) program at the Department of Health
Care Services (DHCS) to provide and reimburse for certified
medical interpretation services to limited English proficient
(LEP) Medi-Cal enrollees. Establishes a certification process
and registry of CommuniCal certified medical interpreters (CCMI)
at the State Personnel Board (SPB) and grants CCMI collective
bargaining rights with the state. Specifically, this bill :
CommuniCal
1)Requires DHCS to establish the CommuniCal program to provide
and reimburse for certified medical interpretation services to
LEP Medi-Cal enrollees.
2)Requires, commencing July 1, 2014, CommuniCal to offer medical
interpretation services to Medi-Cal providers who are
providing services on either a fee-for-service (FFS) or
managed care basis.
3)Requires DHCS to adopt policies to prohibit duplicate payments
to CCMIs and Medi-Cal managed care plans (MCP) for services
provided to Medi-Cal MCP enrollees.
4)Permits contracting Medi-Cal providers, MCPs, and FFS
providers to utilize CommuniCal to provide medical
interpretation services to Medi-Cal enrollees.
5)Requires all contracts between Medi-Cal MCPs and their
subcontractors to include information on the availability of
CommuniCal medical interpretation services.
6)Requires CommuniCal to include in-person, telephonic, and
video medical interpretation services.
7)Provides, to meet language access requirements and ensure
patient safety, in-person interpreter services be the
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preferred mode of medical interpretation in the following
instances whenever possible:
a) Family meetings regarding medical care;
b) Medical encounters involving difficult or agitated
patients;
c) Medical encounters to make treatment decisions;
d) Obtaining informed consent involving review of
documents;
e) Any medical encounter that, in the physician's judgment,
requires in-person interpretation for the health, safety,
or well-being of the patient;
f) Psychiatric encounters; and,
g) End-of-life discussions.
8)Requires CommuniCal to be administered by a patient-centered
communication broker, procured through competitive Request for
Proposals and to be responsible for all of the following
duties:
a) Registering CCMIs with Medi-Cal;
b) Verifying CCMI certification with SPB;
c) Verifying Medi-Cal eligibility for interpreter services
utilizing the State's Medi-Cal Eligibility Data System;
d) Submitting billing summaries to Medi-Cal, aggregating
the cost for services provided;
e) Ensuring compliance with all Medi-Cal and applicable
CommuniCal reporting requirements;
f) Making payments to CCMIs, including any dues and service
fee deductions;
g) Scheduling CCMI appointments with Medi-Cal providers;
h) Monitoring the quality of CommuniCal interpreter
services;
i) Complying with state oversight requirements of
CommuniCal; and,
j) Creating CommuniCal promotional materials for
distribution to Medi-Cal providers, MCPs, and enrollees.
9)Requires DHCS to make all applicable Medi-Cal reporting
requirements known to the broker and be responsible for the
broker's compliance with these requirements.
10)Requires interpreters to be certified as a CCMI by the SPB to
participate in CommuniCal.
11)Provides that CCMIs are responsible for all of the following:
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a) Performing interpreter services as an independent
contractor;
b) Performing interpreter services independent of
direction, except as otherwise provided;
c) Preparing and submitting documentation to the broker in
support of time worked or other services rendered; and,
d) Directing and controlling the manner and means of
interpretation services, except as otherwise provided in
this article.
12)Provides that CCMIs may do any of the following, unless
otherwise prohibited:
a) Advertise, promote, or otherwise communicate
availability for services to clients and the general
public; and,
b) Provide office space, equipment, support services,
forms, supplies, and business cards.
13)Provides that for purposes of the CommuniCal program:
a) CCMIs are not state employees and shall be independent
contractors of the State;
b) CCMIs are not employees of the broker, health care
providers, or consumers; and,
c) The State action antitrust exemption to the application
of federal and State antitrust laws is applicable to the
activities of CCMIs and their exclusive representatives.
14)Establishes the base reimbursement rate for CCMIs to be no
less than sixty dollars ($60) per hour and authorizes it to be
adjusted for factors such as geography, language spoken,
availability of interpreters, level of certification, and
travel time.
15)Requires DHCS to issue guidance on the administration of the
CommuniCal program to ensure compliance with the provisions of
this bill and all applicable State and federal laws by all
contractors and subcontractors of the program.
16)Establishes the CommuniCal Program Fund (Fund) in the State
Treasury and requires any interest and dividends earned on
deposits in the Fund be retained in the Fund for specified
purposes. Provides that moneys in the Fund shall consist of
any funds dedicated to the CommuniCal program and that upon
appropriation by the Legislature to DHCS are to be used solely
to fund the CommuniCal program.
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17)Requires DHCS to pursue all available sources of federal
funding to establish and operate CommuniCal and seek necessary
federal approvals.
Certification and Registration of CommuniCal Medical
Interpreters
1)Provides that the SPB shall serve as the CommuniCal CCMI
certifying body.
2)Requires SPB to select an examination, to be known as the CCMI
Exam, to test competency and provide for certification of
Spanish-language medical interpretation within 120 days of the
implementation of this bill.
3)Requires the CCMI Exam to have both an oral and a written
component. Requires the oral component be conducted in person
in each of the major metropolitan areas in the State.
4)Requires SPB to select a nonprofit organization with a
statewide presence to administer the CCMI Exam.
5)Requires a CCMI registry of all interpreters who pass the CCMI
Exam and have been issued a certificate as specified and
provides that the registry shall be effective January 1, 2014.
6)Requires, commencing July 1, 2014, that in order to be
eligible to provide services under CommuniCal,
Spanish-language interpreters shall be required to pass the
CCMI Exam and be listed on the registry.
7)Requires, for those languages of lesser diffusion (than
Spanish) or languages for which a recognized medical
interpreter exam has not been created, the certifying body
shall determine, by July 1, 2014, with CCMIs and their
exclusive representatives, appropriate testing, training, and
experience standards for interpreters to also be placed on the
registry and listed as a CCMI.
8)Requires the state to certify individuals as certified
interpreters and place them on the registry if they meet one
of the following criteria:
a) Any individual who can demonstrate that as of January 1,
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2014, he or she has worked for a minimum of two years as an
in-person medical interpreter; or,
b) Any individual who has graduated from an accredited
medical interpreter training program at a college or
university before January 1, 2014.
9)Requires the Department of Human Resources (CalHR) to notify
the individual of the acceptance or denial of his or her
inclusion on the registry within 10 days of submission of the
application.
10)Requires the certifying body to establish and charge fees,
not to exceed the reasonable costs, for applicants to take the
exam. Requires a single fee that does not exceed the
reasonable costs for certification and listing on the
registry.
11)Requires each CCMI to pay a registry and certification fee,
due on July 1 of each year.
12)Requires the certifying body to establish, maintain,
administer, and publish annually an updated registry of CCMIs.
13)Permits the certifying body to remove the name of a person
from the registry if any of the following conditions occur:
a) The person is deceased;
b) The person notifies SPB that the person is unavailable
for work;
c) The person does not submit a registry and certification
fee or renewal fee; or,
d) The person fails to meet the quality standards and
medical certification requirements established by this
bill.
14)Provides, for the 2013-14 fiscal year only, the fee for
certification and listing on the registry is waived.
15)Requires the certifying body to adopt quality standards and
medical interpretation certification requirements through
regulations, to include, but not be limited to, maintaining
patient confidentiality and familiarity or experience working
with medical terminology.
16)Requires testing requirements for certification in each
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language and the creation of a list of those languages where
standards permit registration of the interpreter.
17)Requires the exclusive representative of CCMIs and a
nonprofit organization to partner to create and administer a
training program for medical interpreters, in order to prepare
interpreters for the exam or other certification standards
established for languages of lesser diffusion and provide
continuing education for those CCMIs placed on the registry.
18)Requires a community advisory committee to be established to
make recommendations on interpreter certification and
services.
19)Provides that the relationship of CCMIs to all parties and
recipients of service is one of independent contractor, unless
otherwise specified by law.
20)Provides that only interpreters certified pursuant to this
article to be represented by a labor organization for purposes
of collective bargaining as established by this bill.
Legislative Intent
1)Makes legislative findings and declarations regarding the
number of languages spoken in California, that approximately
one in five Californians is LEP, current language access
requirements and the right to interpretation services, the
demand for interpretation services, that language assistance
services are currently provided in an uncoordinated and ad hoc
manner, that California has the opportunity to meet this
demand by accessing millions of dollars in federal matching
funds to provide medical interpretation services to LEP
Medi-Cal beneficiaries, and the benefit of a coordinated
program to offer medical interpreter services.
2)States legislative intent to:
a) Create the CommuniCal program, which is required to
provide reliable access to language interpretation for
Medi-Cal beneficiaries who are LEP;
b) Establish a mechanism for accessing federal Medicaid
(Medi-Cal in California) matching funds to provide a
majority of the funding for the CommuniCal program;
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c) Enable trained and qualified interpreters to meet the
demand for language services for a significant portion of
the estimated three million Medi-Cal beneficiaries with
LEP; and,
d) Facilitate accurate and timely communication between LEP
patients and their health care providers, which will
improve quality of care, reduce medical errors, increase
patient understanding and compliance with health diagnoses
and care plans, and reduce the cost of health care by
eliminating waste, such as unnecessary tests and other
care.
Collective Bargaining for CCMIs
(Note: The following provisions are included for the purpose of
providing a full description of this bill, but are not within
the jurisdiction of this committee).
1)Grants CCMIs the right to form, join, and participate in the
activities of a labor organization of their own choosing for
purpose of representation.
2)Makes the State action antitrust exemption to the application
of federal and State antitrust laws applicable to the
activities of CCMIs and their exclusive representatives under
this bill and applicable law.
3)Requires CCMIs to have the right to be represented by an
exclusive labor organization of their own choosing for the
purpose of collective bargaining with the State of California
on matters of mutual concern, including but not limited to, a
list of 10 specific provisions, including: development;
maintenance and application of the registry; the setting of
reimbursements and rates for State-funded medical interpreter
programs; professional development and certification;
scheduling; dispute resolution mechanism; mediums and modes of
delivery of interpretation services; and, collection and
disbursement of dues.
4)Requires the appropriate bargaining unit for CCMIs to be a
statewide unit of eligible CCMIs.
5)Provides that CCMIs are not public employees and that this
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bill does not establish an employer-employee relationship
between CCMIs and the State or patient-centered communication
brokers for any purpose, including, but not limited to, State
employee eligibility for health or retirement benefits, or
vicarious liability in tort.
6)Requires the labor organization to be as specified in the
Internal Revenue Code and has as its primary purpose the
representation of public service providers in their relations
with State and other public entities.
7)Requires, upon request by a labor organization that is signed
by 20% of CCMIs, the certifying body to furnish to the labor
organization a list of all CCMIs, including full names,
telephone numbers, email addresses, and mailing or home
addresses within five days of the request.
8)Requires the Public Employment Relations Board (PERB), upon
application by petition, authorization cards, or union
membership cards of a labor organization adequately showing
that a majority of CCMIs in the State desire to be represented
exclusively by that labor organization and no other, to
certify and grant exclusive representation to the labor
organization. Requires, if less than a majority but at least
30% of CCMIs desire to be represented exclusively by that
labor organization, the matter to be set for a mail ballot
election.
9)Requires PERB to accept, review, and certify all valid
applications submitted pursuant to 7) and 8) directly above.
Provides that if a PERB regulation or rule conflicts with this
section, this section shall control.
10)Requires any representation election to be a mail ballot
election.
11)Establishes requirements for a preelection conference within
10 days of receipt of an adequate petition or authorization
cards. Requires the labor organization and the State to
engage in a good faith effort to reach a consent election
agreement as specified. Specifies that the State shall be
represented by the Department of Personnel Administration
(DPA) and DHCS.
12)Prohibits other labor organizations from being allowed to
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intervene in an election unless the intervening labor
organization shows at least 30% of the CCMIs desire to be
represented exclusively by the intervening labor organization
and requires PERB to initiate a mail ballot election.
13)Requires PERB to determine all issues or matters in dispute.
Requires the determination and a directed election order or
consent election agreement between the labor organization and
the State to be made within seven days of the conference.
14)Requires PERB to initiate a mail ballot election within 10
days of the execution of a directed election order or consent
election agreement. Requires the election to provide for an
affirmative vote for employee representation by the
petitioning employee organization. Provides that the
proposition receiving the votes of a majority of all valid
votes cast shall win the election and if no option receives an
absolute majority vote of all valid votes cast, requires a
runoff vote between the two options receiving the highest
number of votes to occur within seven days.
15)Establishes additional procedures for the election and
mailing of ballots including providing for the resolution of
final issues 30 minutes prior to the mailing of ballots, that
it be conducted in accordance with the consent election
agreement and the determination of the date and time for
receipt and tabulation of ballots.
16)Requires PERB to validate the ballots against the list of
CCMIs.
17)Requires discussions and collective bargaining between the
certified labor organization and the State and its designated
agents in DPA and DHCS to commence within 30 days upon
certification and at any time thereafter upon request of the
labor organization.
18)Requires a labor organization certified by PERB as receiving
a majority of all valid votes cast to be the exclusive
representative of all CCMIs in the State, and requires all
CCMIs who are eligible for the bargaining unit after the
certification to be part of the bargaining unit and
represented by the labor organization.
19)Requires discussions and collective bargaining between the
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certified labor organization and the State and its designated
agents in DPA and DHCS to commence within 30 days upon
certification and at any time thereafter upon request of the
labor organization.
20)Requires the State, through its designated agents in DPA and
DHCS, to meet and collectively bargain in good faith with
representatives of a certified labor organization and to fully
consider the proposals made by the labor organization on
behalf of CCMIs.
21)Provides that an agreement resulting from collective
bargaining be legally binding, reduced to writing and
presented to the appropriate administrative, legislative, or
other governing body in the form of a binding agreement,
resolution, bill, law, or other form required for adoption.
22)Provides that nothing in this bill affects the right of a
CCMI to authorize dues or a service fee deduction from his or
her reimbursement, provides for the deduction of dues or
services fees, fair share services fees, and transmittal to
the treasurer of the labor organization.
23)Prohibits the State from interfering with, intimidating,
restraining, coercing, or discriminating against CCMIs due to
the exercise of their rights, and requires a complaint
alleging a violation of this provision to be processed as an
unfair practice charge.
24)Permits any charging party, respondent, or intervenor
aggrieved by a final decision or order of PERB in an unfair
practice case to petition for a writ of extraordinary relief
from that decision or order.
25)Requires that execution of a valid written agreement between
the State and the certified labor organization to bar the
filing of an application or petition for certification of a
majority representative for the length of the agreement except
as otherwise provided in this bill.
26)Prohibits the State from encouraging or discouraging
membership in a labor organization, or discriminating against
any CCMI on specified basis, including, but not limited to,
union activity, union membership, age, sex, race, or religious
beliefs.
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27)Permits the state to adopt reasonable rules and regulations
after consultation in good faith with representatives of a
certified labor organization for administration of CCMI labor
relations under this bill.
28)Provides, in the event of a judicial declaration declaring
any provision invalid, the remaining provisions remain in
force.
EXISTING LAW :
1)Under the federal Civil Rights Act, prohibits discrimination
based on race, national origin, or color in federal assistance
programs.
2)Under federal regulations, requires federal agencies to ensure
meaningful access to services for persons with LEP.
3)Under State law, prohibits discrimination based on race,
national origin, ethnic group identification, religion, age,
sex, sexual orientation, color, genetic information, or
disability in any program or activity operated or administered
by a State agency.
4)Under the Dymally-Alatorre Bilingual Services Act, requires
State and local agencies providing services to a substantial
number of non-English speaking people to provide bilingual
services.
5)Under the Kopp Act, requires hospitals to provide language
services, interpreters, or bilingual staff under specified
circumstances and to identify and record patients' primary
languages in hospital records.
6)Under state law regulating health plans, requires commercial
health plans to assess their members language preference and
provide interpretation and translation services in threshold
languages.
7)Establishes the Medi-Cal program, administered by DHCS, under
which qualified low-income individuals receive health care
services.
8)Provides, under federal law, increased federal matching
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funding for translation and interpretation services provided
in connection with the enrollment, retention, and use of
services under Medicaid and the Children's Health Insurance
Program (CHIP) known as the Healthy Families Program (HFP) in
California.
FISCAL EFFECT : This bill has not been analyzed by a fiscal
committee.
COMMENTS :
1)PURPOSE OF THIS BILL . According to the author, this bill is
to establish a program to provide and reimburse for medical
interpretation services to LEP Medi-Cal enrollees and to allow
for collective bargaining for certified medical interpreters.
The author cites data that show more than 40% of Californians
speak a language other than English at home. In addition,
almost seven million Californians are estimated to speak
English "less than very well." Other research finds that
language barriers can contribute to inadequate patient
evaluation and diagnosis, lack of appropriate and/or timely
treatment, or other medical errors that can jeopardize patient
safety and lead to unnecessary procedures and costs. The
author argues that today, language assistance in medical
settings is provided by trained or untrained staff or in an
informal manner by family members or friends. In conclusion,
the author states that California has an opportunity to
develop a more comprehensive language assistance program by
seeking additional federal funding for medical interpreter
services in the Medi-Cal program.
2)BACKGROUND . In 2006 various stakeholders created a task force
charged with developing recommendations for a system to
provide language services for Medi-Cal enrollees, which
evolved into the Medi-Cal Language Access Services (MCLAS)
Taskforce. The ultimate vision of this effort was to design a
system that could accommodate large numbers of persons whose
primary language was other than English and to generate
additional federal financial participation (FFP) for
reimbursement of State expenditures. According to the 2009
MCLAS Report, "Providing Language Services for Limited English
Proficient Patients in California," more than 25 languages are
recorded as Medi-Cal beneficiaries' preferred language.
Almost half (45.2%) speak a language other than English. The
top five non-English languages in Medi-Cal are Spanish
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(36.9%), Vietnamese (1.9%), Cantonese (1.2%), Armenian (0.9%),
and Russian (0.6%).
The MCLAS Report included a recommendation to DHCS described as
a hybrid Brokerage/Direct Provider Reimbursement model to
finance the provision of language services within the Medi-Cal
FFS program. This recommendation was based on a review of
four reimbursement models that 13 states and the District of
Columbia utilize: a) telephonic interpreter reimbursement; b)
direct interpreter reimbursement model; c) direct provider
reimbursement model; and, d) language services agency/broker
reimbursement model. The MCLAS Taskforce analyzed the
positive aspects and the challenges of each model generally
and also specifically in light of California's Medi-Cal
program.
The MCLAS Taskforce proposed a two-year pilot project in 10
counties to sufficiently test the model. However, at the time
of the Taskforce analysis, more than half of the Medi-Cal
population was receiving benefits through FFS. Since then,
DHCS has implemented mandatory enrollment of seniors and
people with disabilities and is in the process of transferring
low-income children from HFP to MCP. Currently less than 35%
of Medi-Cal enrollees receive services on a FFS basis.
Additional initiatives may result in an even smaller FFS
population. The approach taken by this bill does not limit
the model and does include providers who contract with
Medi-Cal MCPs as well as those who provide services on a FFS
basis.
3)FEDERAL POLICY GUIDANCE . Each federal department has a civil
rights office that is charged with ensuring that its programs
are free of discrimination. The responsibilities of the
federal Department of Health and Human Services (HHS) Office
for Civil Rights (OCR) include enforcing the Civil Rights Act,
the Americans with Disabilities Act, and the Age
Discrimination Act. Any organization or individual who
receives monies through HHS-health departments, health plans,
social service agencies, nonprofits, hospitals, clinics, and
physicians-is subject to OCR oversight. The OCR has the
authority to investigate complaints related to linguistic
barriers, to initiate its own reviews, and to withhold federal
funds for noncompliance. The Centers for Medicare and
Medicaid Services (CMS) issued a State Medicaid Director
letter on August 31, 2000, that informed states of the policy
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guidance the OCR had issued on the prohibition against
national origin discrimination as it affects persons with LEP,
pursuant to Title VI the Civil Rights Act. The OCR Policy
Guidance requires recipients of federal assistance to take
reasonable steps to ensure meaningful access to their programs
and activities by LEP persons. The Guidance explains that the
obligation to provide meaningful access is fact-dependent and
starts with an individualized assessment that balances four
factors: a) the number or proportion of LEP persons eligible
to be served or likely to be encountered by the program or
grantee; b) the frequency with which LEP individuals come into
contact with the program; c) the nature and importance of the
program, activity, or service provided by the
grantee/recipient to its beneficiaries; and, d) the resources
available to the grantee/recipient and the costs of
interpretation/ translation services. CMS states there is no
"one size fits all" solution for Civil Rights Act Title VI
compliance with respect to LEP persons, and what constitutes
"reasonable steps" for large providers may not be reasonable
where small providers are concerned.
4)ENHANCED FEDERAL MATCHING FUNDS . The Children's Health
Insurance Program Reauthorization Act (CHIPRA) of 2009
contains provisions that affect both CHIP and Medicaid. In
July 2010, CMS provided guidance on the implementation of the
provisions of CHIPRA relating to increased administrative
funding for translation or interpretation services provided
under CHIP and Medicaid. For Medicaid, increased federal
funding for translation and interpretation services available
under CHIPRA is limited to children and family members of
those children. For CHIP, increased federal funding for
translation and interpretation services is not just limited to
children, and includes pregnant women receiving CHIP coverage.
Prior to CHIPRA, states could claim federal matching funds for
translation or interpretation costs as either an
administration expense or as a medical assistance-related
expense, and were reimbursed at the standard Federal Medical
Assistance Percentage (regular FMAP rate which in California
is typically 50% for Medi-Cal and 65% for the HFP). Although
children in the HFP are currently transitioning to Medi-Cal,
it is still considered a CHIP program for FMAP purposes.
CHIPRA provides increased federal matching funding for
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translation or interpretation services provided to eligible
individuals for whom English is not their primary language.
The increased FMAP for translation or interpretation services
differs for Medicaid and CHIP. For Medicaid, the increased
match is 75% of allowable expenditures. For CHIP, the
increased match is 75%, or the State's enhanced FMAP plus 5%,
whichever is higher (in California, it would be 75%).
However, the increased FMAP is only available for eligible
expenditures claimed for administration of the Medicaid or
CHIP plan, and not expenditures claimed for benefits (which
are matched at the State's usual FMAP rate of 50% for Medi-Cal
and 65% for CHIP). In addition, the expenditures that qualify
for the increased match under CHIP are subject to the 10% cap
on administrative expenditures.
5)SUPPORT . Supporters such as Interpreting for California, The
Low-Income Self-Help Center and Catholic Charities of Santa
Clara County, write that this bill address the need for
interpreters in Medi-Cal as the state will experience greater
demand when 35% of the newly eligible enrollees speak English
less than well. These supporters state that this bill will
make it possible for the 2.5 million Medi-Cal enrollees who
are LEP to communicate with healthcare providers, reducing
medical errors and improving the standard of care by providing
access to trained interpreters. Other supporters such as The
American Federation of State, County and Municipal Employees,
AFL-CIO (AFSCME) and Somos Mayfair writes in support that,
with the expansion of Medi-Cal and the implementation of the
California Health Benefit Exchange under federal health care
reform, the State has a clear opportunity to create an
interpreters' program that will allow patients and providers
to clearly communicate with each other. These supporters
point out that during these difficult fiscal times, the State
should seek to maximize all federal dollars to help the
Medi-Cal program, and matching funds for health care
interpretation will help our state respond to the needs of
LEP. According to these supporters, in 2003 California passed
the strongest law in the country requiring all private health
plans to provide language assistance services to LEP
individuals beginning in 2009. However, the supporters
assert, patient interpretation needs remain unmet despite
these laws and explicit policy directives to Medi-Cal MCPs to
provide interpreter services. According to the Transnational
Institute for Grassroots Research and Action (TIGRA), LEP
Californians frequently reported problems related to their
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experience of care. TIGRA asserts that LEP enrollees of the
state's seven largest health plans were more likely than
English proficient enrollees to report problems understanding
their physician (1.2% versus 2.6%) and believe they would have
received better care if they were of a different
race/ethnicity (14% versus 3.2%).
6)SUPPORT IF AMENDED . The Asian Americans for Civil Rights and
Equality (AACRE) and the Asian American Center for Advancing
Justice, a partnership among three Asian American civil rights
organizations in California, Chinese for Affirmative Action,
the Asian Law Caucus and the Asian Pacific American Legal
Center that advocates on behalf of the diverse Asian, Native
Hawaiian and Pacific Islander communities in California.
According to AACRE, they have long supported the creation of a
comprehensive, efficient reimbursement system in California to
ensure the provision of, and funding for, qualified and
trained interpreters and translators for LEPs. While they
agree with the policy goals expressed in the bill, key issues
and critical details regarding the new CommuniCal program have
not been addressed in the bill. In order to establish an
effective reimbursement program that would truly serve the
needs of LEP persons, AACRE recommends addressing the
following issues:
a) Quality of interpreter services provided to Medi-Cal
beneficiaries . AACRE states that this appoints SPB to be
the "CommuniCal certified medical interpreter (CCMI)
certifying body," which will be responsible to select an
exam to test the competency of, and to certify CCMIs.
However AACRE points out that due to the complexity of the
certification process for medical/health care interpreters,
(which few states have in place and two national bodies are
in the process of developing) it is unrealistic to expect
SPB to develop or have the proper staff to implement the
certification test, especially given the short amount of
time provided, 120 days for the Spanish language
certification, in a meaningful way. Moreover, SPB, as the
agency responsible for the enforcement of the
Dymally-Alatorre Bilingual Services Act failed to enforce
compliance with the requirements. Therefore, AACRE does
not believe that SPB is the most appropriate entity to
certify CCMIs and/or to be the certifying body.
b) Additional languages . Languages other than Spanish
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should also be specifically addressed, given the range of
additional languages spoken by the Medi-Cal population.
c) Inclusion of translation, not just interpretation .
d) Guidelines for in-person interpretation . AACRE states
that the rather than provide guidelines in legislation,
this should be left to a broader range of stakeholders,
such as health care providers, interpreter associations and
interpreters, LEP advocates and patients, who could better
determine the appropriate times when the different modes of
interpretation services should be used.
e) Reimbursement . AACRE expresses concern that there are
no provisions for reimbursement for bilingual staff or
interpreters at clinics, hospitals and doctor's offices.
f) Implementation Work Group . AACRE recommends the
establishment of a stakeholder group to work with DHCs to
address these issues.
7)RELATED LEGISLATION .
a) AB 505 (Nazarian) codifies existing Medi-Cal MCP
requirements to provide language assistance, translation,
and interpretation services when populations reach
specified thresholds. AB 505 is pending in the Assembly
Health Committee.
b) AB 1376 (Roger Hernández) proposes to eliminate the role
of the SPB and CalHR in maintaining the published list of
certified administrative hearing and medical examination
interpreters and repeal the annual fee interpreters
previously paid to be included on the list. AB 1376 grants
authority to each department that is subject to language
assistance the ability to qualify and retain interpreters
as needed. AB 1376 would also make technical changes to
existing law allowing the Administrative Director of the
Division of Workers' Compensation to establish, maintain,
administer, and publish annually an updated list of
certified administrative hearing interpreters; as well as
collect a reasonable fee from each interpreter seeking
certification. AB 1376 is pending in the Assembly
Judiciary Committee and is double referred to the Assembly
Insurance Committee.
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8)PREVIOUS LEGISLATION .
a) AB 2392 ( John A. Pérez) of 2012, would have required
the DHCS to establish the CommuniCal program to provide and
reimburse for certified medical interpretation services
provided to Medi-Cal beneficiaries who are LEP. Would have
established the SPB as the certifying body for the CCMI
program. Would have required CommuniCal to be administered
by a patient-centered communication broker that is a
third-party administrator and provided for collective
bargaining rights for CCMIs. AB 2392 died on the Assembly
inactive file.
b) SB 442 (Calderon) of 2011 would have required general
acute care hospital policies for the provision of language
assistance to patients with language or communication
barriers to include procedures for discussing with the
patient any cultural, religious, or spiritual beliefs or
practices that may influence care, and to increase the
ability of hospital staff to understand and respond to the
cultural needs of patients. Would have required hospitals'
policies on language assistance services to include
criteria on proficiency similar to those that apply to
health plans. SB 442 was vetoed by the Governor.
c) SB 1405 (Soto) of 2006 would have required the
Department of Health Services (now DHCS) to create the Task
Force on Reimbursement for Language Services, as specified,
to develop a mechanism for seeking federal matching funds
from CMS to pay for language assistance services, as
specified. SB 1405 was placed on the inactive file.
d) AB 800 (Yee), Chapter 313, Statutes of 2005, requires
all health facilities (hospitals, skilled nursing
facilities, intermediate care facilities, and correctional
treatment centers) and all primary care clinics to include
a patient's principal spoken language on the patient's
health records.
e) SB 853 (Escutia), Chapter 713, Statutes of 2003,
requires the Department of Managed Health Care and the
California Department of Insurance to adopt regulations to
ensure enrollees have access to language assistance in
obtaining health care services.
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9)POLICY COMMENTS .
a) Medi-Cal Funding . In addition to providing high quality
interpretation services for Medi-Cal and CHIP enrollees,
the author's intent is to take maximum advantage of
increased FMAP available through CHIPRA. In order to
advance that goal the author may want to consider
addressing the additional Medi-Cal and CHIP funding issues.
While the bill is detailed and prescriptive with regard to
other aspects of the CCMI program such as the broker
arrangements, rights, roles and responsibilities of CCMIs,
CCMI certification and the broker procurement process, the
bill is lacking specificity with regard to enhanced Federal
match. The following issues may need to be addressed:
i) Administrative cap . Under CHIP, the expenditures
that qualify for the increased match are subject to the
10% cap on all administrative expenditures. As the
California CHIP program, previously known as the HFP, is
transitioning from the Managed Risk Medical Insurance
Board to DHCS and the children are being enrolled into
Medi-Cal, the author may want to consider including
directions to DHCS to develop a process to ensure
compliance with this requirement and to determine how
close the current expenditures are to reaching this cap.
ii) Claiming mechanisms . The enhanced funding
opportunity has specific rules and limitations because of
its classification as administrative expenditures.
Ultimately, the details will require negotiations with
CMS and federal approval of billing mechanisms. However,
the author may want to consider either adding general
directions to DHCS to seek the enhanced FMAP consistent
with the CMS guidance and require DHCS to work with
providers, plans, and representatives of CCMIs to develop
regulations or provider bulletins to implement the
reimbursement provisions or, alternatively provide more
specific direction of how to meet the federal
requirement. For example CMS has stated that in order to
obtain the increased translation/interpretation match,
states and providers may:
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(1) Enter into a contract or employ staff that
provide solely translation or interpretation functions
and claim related costs as administration; and/or,
(2) Pay for translation or interpretation
activities to assist the medical provider of record
for the service separately as an administrative
expenditure, in addition to the rate paid for the
medical service itself.
iii) Managed Care . According to CMS, under Medicaid or
CHIP, if translation or interpretation services are
provided by a contracted managed care plan and funded
through a capitated payment from the State, related costs
in that rate are not eligible for the increased
translation/interpretation match rate because the
capitated payment is a benefit expenditure, not an
administrative expenditure. This is consistent with
Medicaid managed care regulations which specify that
payments made under a managed care contract are
considered "medical assistance services" and are
matchable only at the standard FMAP rate. States have
the option, however, to carve out translation or
interpretation services from the capitated rate and
contract separately for such services as an
administrative activity. This bill acknowledges these
restrictions by requiring DHCS to adopt policies to
prohibit duplicate payments to CCMIs and MMCOs, for
services provided to enrollees. However, another
provision requires the broker to submit billing summaries
to Medi-Cal, aggregating the cost for services provided.
This provision may be an impediment to meeting the
requirements for enhanced match for both managed care and
FFS as it will not allow for the accounting required to
claim as an administrative expenditure.
b) Certifying body for CCMIs . This bill requires SPB to
serve as the CCMI certifying body. The Governor's
Reorganization Plan 1 consolidated SPB and the DPA into a
single agency known as CalHR. Prior to the consolidation
of the SPB and DPA into the new CalHR, SPB was charged with
providing testing for administrative hearing and medical
examination interpreters, as well as, maintaining and
publishing a list of interpreters to be utilized by the
departments when needed. While under SPB's purview, SPB
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contracted with Cooperative Personnel Services (CPS) to
administer the examination at a cost that eventually
escalated to $250,000 a year. SPB has indicated that when
it could no longer afford the program in 2008, it canceled
its contract with CPS and took over the role of simply
maintaining the list of interpreters by collecting renewal
fees and providing the list to departments on a yearly
basis. The current fee for renewal is $100 per year. SPB
indicates a test has not been administered since 2008 and
the list of interpreters remains the same assuming the
individuals on the list annually renew their registration
fees.
i) Role of SPB . The Brown Administration is sponsoring
AB 1376 ( Roger Hernández) that would eliminate the role
of SPB and CalHR in maintaining the published list of
certified administrative hearing and medical examination
interpreters and repeal the annual fee interpreters
previously paid to be included on the list. AB 1376
would instead grant authority to each department that is
subject to language assistance the ability to qualify and
retain interpreters as needed. Depending on the outcome
of AB 1376, the author may want to consider placing the
authority with DHCS as this is a potential conflict that
will need to be resolved.
ii) Selection of non-profit . This bill requires SPB to
select a non-profit organization with input from
stakeholders. The responsibilities include training and
exam administration. However, the bill is silent with
regard to the qualifications. In determining which
entity has the ultimate responsibility, the author may
also want to provide further details. For example,
Washington has a State run Language Testings and
Certification program and the brokers are described as
language services agencies. In Oregon, the Oregon Office
of Multicultural Health released Standards for
Registration, Qualification and Certification of Health
Care Interpreters. Indiana charged an independent
commission with developing standards for training and
practice.
c) Technical Amendments .
i) This bill's references to SPB and DPA need to be
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conformed to the current organization.
ii) This bill makes the registry effective January 1,
2014 and requires individuals with specified
qualifications to be certified and placed on the registry
in order to meet anticipated demand. The listed
qualifications do not include passing the exam
established by this bill. However another provision
provides that commencing July1, 2014, Spanish-language
interpreters shall be required to pass the exam and be
listed on the registry. It is not clear whether the exam
requirement also applies to the specified individuals
listed after that date.
10)DOUBLE REFERRED . This bill has been double-referred to the
Assembly Public Employees and Retirement System (PERS)
Committee. Should this bill pass out of the Assembly Health
Committee, the provisions within the jurisdiction of the PERS
Committee will be considered in that committee.
REGISTERED SUPPORT / OPPOSITION :
Support
Access California Services, Anaheim
American Federation of State, County and Municipal Employees,
AFL-CIO
Asian American Center for Advancing Justice
Asian Americans for Civil Rights & Equality
Asian Pacific American Librarian Association, San Diego
Asian Pacific Health Foundation, San Diego
Bayside Community Center, San Diego
Binational Center for the Development of Oaxacan Indigenous
Communities
California Immigrant Policy Center
Cambodian Buddhist Society of San Diego
Campeonas de la Salud, San Jose
Central American Refugee Committee, Oakland
Chinese Service Center, San Diego
Coalition for the Human Rights of Immigrants, Los Angeles
Dolores Huerta Foundation
East Bay Refugee Forum, Oakland
East Bay Sanctuary Covenant, Berkeley
Eastside Neighborhood Center of Catholic Charities
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Eastside Neighborhood Center, San Jose
Greater Logan Heights Community Partnership, San Diego
Healing Hope, Fresno
Health Access California
Hmong Women's Heritage Association, Sacramento
Horn of Africa Community, San Diego
Interpreting for California
Khmer Girls in Action, Long Beach
Korean American Senior Association of San Diego County
Korean Community Services, Buena Park
La Maestra Community health Centers, San Diego
Lao Community Action Network, Sacramento
Little Saigon Foundation, San Diego
Los Angeles County Federation of Labor, Los Angeles
Low Income Self-Help Center
Low Income Self-Help Center, San Jose
National Association for the Advancement of Colored People, San
Diego
National Hmong American Farmers, Fresno
Operation Samahan, National City
Russian Orthodox Church, San Diego
San Diego LGBT Pride
San Diego Vietnamese Club
Services, Immigrants' Rights and Education Network, San Jose
Solami Family Services, San Diego
Somos Mayfair
Southern Sudanese Community Center, San Diego
St. John's Wellness Center, Los Angeles
Street Level Health Project, Oakland
The Cambodian Family, Santa Ana
Transnational Institute for Grassroots Research and Action
Transnational Institute for Grassroots Research and Action,
Oakland
United Domestic Workers of America, AFSME Local 3930, AFL-CIO
Viet-CARE, Westminster
Vietnamese Community of San Diego
Wat Lao Buddhavam of San Diego
Opposition
None on file.
Analysis Prepared by : Marjorie Swartz / HEALTH / (916)
319-2097
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