BILL ANALYSIS Ó
SENATE PUBLIC EMPLOYMENT & RETIREMENT BILL NO: AB 1263
Jim Beall, Chair HEARING DATE: June 24, 2013
AB 1263 (John Perez) as amended 6/13/13 FISCAL: YES
MEDI-CAL: PATIENT CENTERED COMMUNICATION PROGRAM
HISTORY :
Sponsor: Author
Other Legislation:AB 505 (Nazarian) 2013
Currently in Senate Appropriations Committee
AB 1376 (Roger Hernández) 2013
Currently in Senate Appropriations Committee
AB 2392 (John A. Pérez), 2012
Died on the Assembly Floor
ASSEMBLY VOTES :
Health 13-5 4/02/13
PER & SS 5-2 4/10/13
Appropriations 12-5 5/24/13
Assembly Floor 55-23 5/29/13
SUMMARY :
AB 1263 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 interpreters
at the DHCS; requires DHCS to develop a Community Advisory
Committee (CAC) to assist with the certification process; and
grants CommuniCal interpreters collective bargaining rights
with the state, as represented by the Department of Human
Resources (CalHR) and DHCS.
BACKGROUND AND ANALYSIS :
1)Existing law :
a) under the federal Civil Rights Act, prohibits
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discrimination based on race, national origin, or color
in federal assistance programs.
b) under federal regulations, requires federal agencies
to ensure meaningful access to services for persons with
limited English proficiency (LEP).
c) 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.
d) 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.
e) 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.
f) 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.
g) establishes the Medi-Cal program, administered by
DHCS, under which qualified low-income individuals
receive health care services.
h) provides, under federal law, increased federal
matching 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.
2)This bill 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
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English proficient (LEP) Medi-Cal enrollees, and creates a
certification process and registry of CommuniCal
interpreters at DHCS with collective bargaining rights with
the state.
a) Creation of CommuniCal
i) requires DHCS to establish the CommuniCal program
to provide and reimburse for certified medical
interpretation services to LEP Medi-Cal enrollees.
ii) 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.
iii) requires DHCS to adopt policies, in consultation
with the CAC, to prohibit duplicate payments to
CommuniCal interpreters and Medi-Cal managed care
plans (MCP) for services provided to Medi-Cal MCP
enrollees.
iv) permits contracting Medi-Cal providers, MCPs, and
FFS providers to utilize CommuniCal to provide medical
interpretation services to Medi-Cal enrollees.
v) requires all contracts between Medi-Cal MCPs and
their subcontractors to include information on the
availability of CommuniCal medical interpretation
services.
vi) requires DHCS, in consultation with the CAC, to
pursue all available sources of federal funding to
establish and operate CommuniCal and seek necessary
federal approvals.
vii) requires CommuniCal to include in-person,
telephonic, and video medical interpretation services.
viii)provides that, to meet language access requirements
and ensure patient safety, in-person interpreter
services be the preferred mode of medical
interpretation in the following instances whenever
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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;
(g) end-of-life discussions; and
(h) other circumstances identified by the CAC.
i) 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 CommuniCal interpreters with
Medi-Cal;
(b) verifying CommuniCal interpreter
eligibility to provide services with DHCS;
(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 CommuniCal interpreters,
including any dues and service fee deductions;
(g) scheduling CommuniCal interpreter
appointments with Medi-Cal providers;
(h) monitoring the quality of CommuniCal
interpreter services;
(i) complying with state oversight requirements
of CommuniCal, in consultation with the CAC, as
specified;
(j) creating CommuniCal promotional materials
for distribution to Medi-Cal providers, MCPs, and
enrollees; and
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(aa) any other duties deemed appropriate by the
CAC.
i) 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.
ii) requires interpreters to be certified as a
CommuniCal interpreter by DHCS to participate in
CommuniCal.
iii) provides that CommuniCal interpreters are
responsible for all of the following:
(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.
xiii) provides that CommuniCal interpreters 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.
i) provides that for purposes of the CommuniCal
program:
(a) CommuniCal interpreters are not state
employees and shall be independent contractors of
the state;
(b) CommuniCal interpreters are not employees
of the broker, health care providers, or consumers;
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and,
(c) the state action antitrust exemption to the
application of federal and state antitrust laws is
applicable to the activities of CommuniCal
interpreters and their exclusive representatives.
xv) establishes the base reimbursement rate for
CommuniCal interpreters to be no less than sixty
dollars ($60) per hour and authorizes it to be
adjusted, in consultation with the CAC, for factors
such as geography, language spoken, availability of
interpreters, level of certification, and travel time.
xvi) requires DHCS to issue guidance, in consultation
with the CAC, 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.
xvii) 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.
a) Certification and Registration of CommuniCal
Interpreters and the CAC
i) provides that the DCHS shall serve as the
CommuniCal interpreter certifying body, and requires
DCHS, as the certifying body to:
(a) develop, monitor, and evaluate interpreter
competency, qualification, training, certification,
and continuing education requirements for medical
interpreters.
(b) by September 1, 2014, in consultation with
CAC, to approve an examination and certification
process to test and certify the competency of
CommuniCal interpreters.
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i) as a condition of certification, requires an
interpreter to complete at least one of the following,
and specifies that upon completing one of the
following, the interpreter shall be certified as a
CommuniCal Certified Medical Interpreter (CCMI) and
listed on the CommuniCal Medical Interpreter Registry:
(a) pass an examination administered by a
nonprofit organization selected by the department
that is nationally accredited to offer
certification exams for health care interpreters.
(b) pass an examination developed by a
state-established language testing and
certification program that includes oral and
written components and specified competency
standards.
(c) achieve the designation of Certified
Healthcare Interpreter from the Certification
Commission for Healthcare Interpreters.
(d) achieve the designation of Certified
Medical Interpreter from the National Board of
Certification for Medical Interpreters.
i) establishes an alternative certification process
for authorizing CommuniCal services by an interpreter
of languages for which a CCMI examination has not been
created, which shall be a screening test developed by
DCHS, in consultation with CAC, with the following
components:
(a) a written component testing for specified
knowledge, skills and abilities, including
preparing for and managing interpreter encounters,
knowledge of healthcare terminology, interacting
with health care professionals and cultural
responsiveness.
(b) an oral component utilizing the target
language spoken by the interpreter to test his or
her skills, as specified.
i) requires an interpreter, as of July 1, 2014, to
be certified as a CCMI or authorized under the
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alternative process in order to provide CommuniCal
services.
ii) requires DHCS to maintain a list of interpreters
either certified as CCMIs or authorized under the
alternative process, which shall be known as the
CommuniCal Medical Interpreter Registry.
iii) allows DHCS to meet anticipated demand for
interpreter services by authorizing an interpreter to
provide CommuniCal services until he or she becomes
properly certified or authorized, if the person either
graduated from an accredited medical interpreter
training program at a college or university before
January 1, 2014, or meets all of the following
criteria:
(a) the interpreter can demonstrate that as of
January 1, 2014, he or she has worked for a minimum
of two years as an in-person medical interpreter;
or,
(b) the interpreter has achieved a high school
diploma, or a General Education Development (GED)
or its equivalent from another country.
(c) the interpreter has demonstrated linguistic
proficiency in English and another specified
language and is at least 18 years of age.
iv) specifies that an individual authorized under the
provisional requirements who does not subsequently
become certified or receive permanent authorization by
January 1, 2016, shall no longer be authorized to
provide CommuniCal services.
v) requires the certifying body to establish and
charge fees, not to exceed the reasonable costs, for
applicants to take an applicable exam. Requires a
single fee that does not exceed the reasonable costs
for certification, authorization, and listing on the
registry.
vi) requires each CCMI or authorized interpreter to
pay a registry and certification fee, due on July 1 of
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each year, for continued listing on the Registry.
vii) requires the certifying body to establish,
maintain, administer, and publish annually an updated
registry of CommuniCal interpreters.
viii) permits the certifying body to remove the name of
a person from the registry if any of the following
conditions occur:
(d) the person is deceased;
(e) the person notifies DHCS that the person is
unavailable for work;
(f) the person does not submit a registry and
certification fee or renewal fee; or,
(g) the person fails to meet the quality
standards and medical certification requirements
established by this bill.
ix) provides, for the 2013-14 fiscal year only, the
fee for certification and listing on the registry is
waived.
x) 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.
xi) requires testing requirements for certification
in each language and the creation of a list of those
languages where standards permit registration of the
interpreter.
xii) requires a Community Advisory Committee (CAC)
to be established to make recommendations on
interpreter certification and services and to assist
with developing standards and requirements, as
specified.
xiii) requires that the CAC include interested
stakeholders that reflect the diversity of the state
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in terms of race, ethnicity, gender, sexual
orientation, immigration status, and geography, and
be representative of government, the health care
provider community, LEP consumers, and other
appropriate stakeholders.
xiv) requires the exclusive representative of
CommuniCal interpreters, the CAC, and a nonprofit
organization to partner to create and administer a
training program for medical interpreters, in order
to prepare interpreters for exams or other
certification standards established for languages of
lesser diffusion and to provide continuing education
for those CommuniCal interpreters placed on the
registry.
xv) provides that the relationship of CommuniCal
interpreters to all parties and recipients of
service is one of independent contractor, unless
otherwise specified by law.
xvi) provides that only CommuniCal interpreters
shall be represented by a labor organization for
purposes of collective bargaining as established by
this bill.
a) Collective Bargaining for CommuniCal Interpreters
i) grants CommuniCal interpreters the right to form,
join, and participate in the activities of a labor
organization of their own choosing for purpose of
representation.
ii) makes the state action antitrust exemption to the
application of federal and state antitrust laws
applicable to the activities of CommuniCal
interpreters and their exclusive representatives under
this bill and applicable law.
iii) requires CommuniCal interpreters 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
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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.
iv) requires the appropriate bargaining unit for
CommuniCal interpreters to be a statewide unit of
eligible CommuniCal interpreters.
v) provides that CommuniCal interpreters are not
public employees and that this bill does not establish
an employer-employee relationship between CommuniCal
interpreters 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.
vi) requires the labor organization to be as
specified in the Internal Revenue Code and have as its
primary purpose the representation of public service
providers in their relations with state and other
public entities.
vii) requires, upon request by a labor organization
that is signed by 20% of CommuniCal interpreters, the
certifying body to furnish to the labor organization a
list of all CommuniCal interpreters, including full
names, telephone numbers, email addresses, and mailing
or home addresses within five days of the request.
viii) 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
CommuniCal interpreters in the state desire to be
represented exclusively by that labor organization and
no other, to certify and grant exclusive
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representation to the labor organization. Requires,
if less than a majority but at least 30% of CommuniCal
interpreters desire to be represented exclusively by
that labor organization, the matter to be set for a
mail ballot election.
ix) requires PERB to accept, review, and certify all
valid applications submitted pursuant to the above
requirements. Provides that if a PERB regulation or
rule conflicts with this section, this section shall
control.
x) requires any representation election to be a mail
ballot election.
xi) 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 CalHR and DHCS.
xii) prohibits other labor organizations from being
allowed to intervene in an election unless the
intervening labor organization shows at least 30% of
the CommuniCal interpreters desire to be represented
exclusively by the intervening labor organization and
requires PERB to initiate a mail ballot election.
xiii) 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.
xiv) 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
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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.
xv) 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.
xvi) requires PERB to validate the ballots against the
list of CommuniCal interpreters.
xvii) 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.
xviii) requires a labor organization certified by PERB
as receiving a majority of all valid votes cast to be
the exclusive representative of all CommuniCal
interpreters in the state, and requires all CommuniCal
interpreters who are eligible for the bargaining unit
after the certification to be part of the bargaining
unit and represented by the labor organization.
xix) 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.
xx) 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 CommuniCal
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interpreters.
xxi) 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.
xxii) provides that nothing in this bill affects the
right of a CommuniCal interpreter 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, and requires that
such fees and dues shall continue in effect as long as
the labor organization is the recognized
representative.
xxiii) requires the state to meet and collectively
bargain in good faith, as defined. Prohibits the state
from interfering with, intimidating, restraining,
coercing, or discriminating against CommuniCal
interpreters 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.
xxiv) 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.
xxv) 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.
xxvi) prohibits the state from encouraging or
discouraging membership in a labor organization, or
discriminating against any CommuniCal interpreter on
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specified bases, including, but not limited to, union
activity, union membership, age, sex, race, or
religious beliefs.
xxvii) permits the state to adopt reasonable rules and
regulations after consultation in good faith with
representatives of a certified labor organization for
administration of CommuniCal interpreter labor
relations under this bill.
xxviii)provides, in the event of a judicial declaration
declaring any provision invalid, the remaining
provisions remain in force.
b) Legislative Intent
i) 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.
ii) declares 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
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CommuniCal program.
(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.
(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.
FISCAL :
The Assembly Appropriations Committee notes the following
fiscal effect:
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
fee-for-service 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
DHCS. It is unclear whether the bill's provisions would
increase costs above what is already incurred.
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4) potential one-time costs of $139,000 and ongoing annual
costs of $53,000 per year to PERB.
5) state GF 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 :
1)Recent Amendments :
Amendments incorporated on June 13, 2013 addressed concerns
raised in the Assembly policy analyses about the certifying
body, which had previously been identified as the State
Personnel Board, which for several years has been in the
process of transferring processes for certifying
interpreters to the individual departments. This bill
appropriately changes the certifying agency to DHCS.
2)Arguments in Support :
According to the Assembly analysis, supporters state that
allowing certified interpreters to join labor unions and
participate in collective bargaining will assist in
creating the strong workforce of CommuniCal interpreters
needed to ensure that the hundreds of thousands of LEP
Californians coming under coverage are being adequately
served.
3)SUPPORT :
American Federation of State, County and Municipal
Employees (AFSCME), Local 3930, AFL-CIO
American Federation of State, County and Municipal
Employees (AFSCME)
California Black Health Network
California Immigrant Policy Center (CIPC)
Children's Defense Fund-California
Children Now
Health Access California
National Association of Social Workers, California Chapter
(NASW-CA)
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Planned Parenthood Affiliates of California (PPAC)
The Children's Partnership
United Domestic Workers of America (UDW)
4)OPPOSITION :
1 Private Individual
#####
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