BILL ANALYSIS Ó
AB 1263
Page 1
ASSEMBLY THIRD READING
AB 1263 (John A. Pérez)
As Amended April 11, 2013
Majority vote
HEALTH 13-5 PUBLIC EMPLOYEES 5-2
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|Ayes:|Pan, Ammiano, Atkins, |Ayes:|Bonta, Jones-Sawyer, |
| |Bonilla, Bonta, Chesbro, | |Mullin, |
| |Gomez, | |Rendon, Wieckowski |
| |Roger Hernández, Gordon, | | |
| |Mitchell, Nazarian, | | |
| |V. Manuel Pérez, | | |
| |Wieckowski | | |
| | | | |
|-----+--------------------------+-----+--------------------------|
|Nays:|Logue, Maienschein, |Nays:|Allen, Harkey |
| |Mansoor, Wagner, Wilk | | |
| | | | |
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APPROPRIATIONS 12-5
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|Ayes:|Gatto, Bocanegra, |
| |Bradford, |
| |Ian Calderon, Campos, |
| |Eggman, Gomez, Hall, |
| |Ammiano, Pan, Quirk, |
| |Weber |
| | |
|-----+--------------------------|
|Nays:|Harkey, Bigelow, |
| |Donnelly, Linder, Wagner |
| | |
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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 California Human Resources Department (CalHR) and grants
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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 and 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.
2)Requires CommuniCal to include in-person, telephonic, and
video medical interpretation services and specifies that
in-person interpreter services be the preferred mode of
medical interpretation in specified instances whenever
possible.
3)Requires CommuniCal to be administered by a patient-centered
communication broker, procured through competitive Request for
Proposals and to be responsible for specified duties,
including registering CCMIs with Medi-Cal; verifying CCMI
certification with the State Personnel Board; verifying
Medi-Cal eligibility for interpreter services utilizing the
State's Medi-Cal Eligibility Data System; submitting billing
summaries to Medi-Cal, aggregating the cost for services
provided; ensuring compliance with all Medi-Cal and applicable
CommuniCal reporting requirements; making payments to CCMIs,
including any dues and service fee deductions; scheduling CCMI
appointments with Medi-Cal providers; monitoring the quality
of CommuniCal interpreter services; complying with state
oversight requirements of CommuniCal; and, creating CommuniCal
promotional materials for distribution to Medi-Cal providers,
managed care plans (MCPs), and enrollees.
4)Provides that for purposes of the CommuniCal program, CCMIs
are not state employees and shall be independent contractors
of the State; are not employees of the broker, health care
providers, or consumers; and, 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.
5)Establishes the base reimbursement rate for CCMIs to be no
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less than $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.
6)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.
7)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. Requires moneys in the Fund to 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.
8)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) Requires CalHR to serve as the CommuniCal CCMI
certifying body.
2)Requires CalHR to establish an examination, as specified to
test competency and provide for certification of
Spanish-language medical interpretation; requires the CCMI
Exam to have both an oral and a written component; and,
requires the certifying body to establish and charge fees, not
to exceed the reasonable costs, for applicants to take the
exam.
3) 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, and 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 and
requires a single fee that does not exceed the reasonable
costs for certification and listing on the registry and
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provides, for the 2013-14 fiscal year only, the fee for
certification and listing on the registry is waived.
4) 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 and requires testing
requirements for certification in each language and the
creation of a list of those languages where standards
permit registration of the interpreter.
5) Requires the state to certify individuals as certified
interpreters and place them on the registry if they meet
specified criteria as of January 1, 2014 and requires 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.
6) Requires the certifying body to establish, maintain,
administer, and publish annually an updated registry of
CCMIs; provides for removing the name of a person from the
registry under specified circumstances.
7) 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.
8) 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.
9) 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.
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Collective Bargaining for CCMIs
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 and 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.
2) 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, as specified.
3) Requires the appropriate bargaining unit for CCMIs to be
a statewide unit of eligible CCMIs.
4) Provides that CCMIs are not public employees and that
this 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.
5) 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.
6) Establishes a process, consistent with public employee
collective bargaining rights for a labor organization to
establish a 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.
7) Establishes a process for a representation election to
be a mail ballot election; allows for a consent election
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agreement as specified and specifies that the State shall
be represented by the CalHR and DHCS, prohibits other labor
organizations from being allowed to 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 the
Public Employment Relations Board (PERB) to initiate a mail
ballot election.
8) Provides for a process for determination of all issues
or matters in dispute and requires the determination and a
directed election order or consent election agreement
between the labor organization and the State to be made as
specified.
9) 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.
10) Establishes additional procedures for the election and
mailing of ballots including providing for the resolution
of final issues; requires PERB to validate the ballots
against the list of CCMIs.
11) Requires discussions and collective bargaining between
the certified labor organization and the State and its
designated agents in CalHR and DHCS to commence within 30
days upon certification and at any time thereafter upon
request of the labor organization.
12) 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.
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13) Requires discussions and collective bargaining between
the certified labor organization and the State and its
designated agents in CalHR and DHCS to commence within 30
days upon certification and at any time thereafter upon
request of the labor organization.
14) Requires the State, through its designated agents in
CalHR 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.
15) 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.
16) 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.
17) 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.
18) 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.
19) 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.
20) Prohibits the State from encouraging or discouraging
membership in a labor organization, or discriminating
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against any CCMI on specified basis, including, but not
limited to, union activity, union membership, age, sex,
race, or religious beliefs.
21) 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.
22) Provides, in the event of a judicial declaration
declaring any provision invalid, the remaining provisions
remain in force.
FISCAL EFFECT : According to the Assembly Appropriations
Committee:
1)One-time costs likely in the hundreds of thousands of dollars
to develop program guidelines, seek necessary federal
approvals, and contract for CommuniCal administration.
2)Ongoing costs potentially exceeding several million dollars
per year to provide interpreter services in FFS Medi-Cal. The
actual cost of this voluntary program will depend on the
demand level for interpreter services not already being met.
3)Minor costs in Medi-Cal managed care. Under current law,
health plans are required to provide interpretation services,
including managed care plans that contract with the DHCS. It
is unclear whether the bill's provisions would increase costs
above what is already incurred.
4)Potential one-time costs of $139,000 and ongoing annual costs
of $53,000 per year to PERB.
5)State General Fund costs would be offset by an enhanced
federal match of 75%, pursuant to a 2010 federal guidance,
rather than the 50% match generally attributable for
administrative costs.
COMMENTS : 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
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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.
The Children's Health Insurance Program Reauthorization Act
(CHIPRA) of 2009 contains provisions that affect both the
federal Children's Health Insurance Program (CHIP) and Medicaid.
In July 2010, the Centers for Medicare and Medicaid Services
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 Healthy Families Program (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
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
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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.
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 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 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%).
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The Asian Americans for Civil Rights and Equality (AACRE) and
the Asian American Center for Advancing Justice, state 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 order to
establish an effective reimbursement program that would truly
serve the needs of LEP persons, AACRE recommends addressing
additional issues such as the quality of interpreter services
provided to Medi-Cal beneficiaries; the range of additional
languages spoken by the Medi-Cal population; inclusion of
translation, not just interpretation; guidelines for in-person
interpretation; reimbursement for bilingual staff or
interpreters at clinics, hospitals and doctor's offices; and,
the establishment of a stakeholder group to work with DHCs to
address these issues.
Analysis Prepared by : Marjorie Swartz / HEALTH / (916)
319-2097
FN: 0000925