BILL ANALYSIS Ó
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THIRD READING
Bill No: AB 1263
Author: John A. Pérez (D)
Amended: 7/10/13 in Senate
Vote: 21
SENATE PUBLIC EMPLOYMENT & RETIREMENT COMM. : 3-2, 6/24/13
AYES: Beall, Block, Yee
NOES: Walters, Gaines
SENATE HEALTH COMMITTEE : 7-2, 7/3/13
AYES: Hernandez, Beall, De León, DeSaulnier, Monning, Pavley,
Wolk
NOES: Anderson, Nielsen
SENATE APPROPRIATIONS COMMITTEE : 5-2, 8/30/13
AYES: De León, Hill, Lara, Padilla, Steinberg
NOES: Walters, Gaines
ASSEMBLY FLOOR : 55-23, 5/29/13 - See last page for vote
SUBJECT : Medi-Cal: CommuniCal
SOURCE : Author
DIGEST : This bill requires the Department of Health Care
Services (DHCS) to establish the Medi-Cal Patient-Centered
Communication Program, called CommuniCal, to provide and
reimburse for medical interpretation services to Medi-Cal
beneficiaries who are limited-English proficient (LEP),
establishes a certification process and registry of CommuniCal
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interpreters at DHCS and grants CommuniCal interpreters
collective bargaining rights with the state.
ANALYSIS :
Existing federal law:
1. Provides increased federal matching funding for translation
and interpretation services provided in connection with the
enrollment, retention, and use of services under Medicaid
(Medi-Cal in California) and the Children's Health Insurance
Program (CHIP is known as the Healthy Families Program in
California).
2. Prohibits, under Title VI of the Civil Rights Act of 1964, a
person in the United States, on the grounds of race, color,
or national origin, from being excluded from participation
in, denied the benefits of, or subjected to discrimination
under any program or activity receiving federal financial
assistance.
Existing state law:
1. Establishes the Medi-Cal program, which is administered by
DHCS, under which qualified low-income individuals receive
health care services.
2. Requires, under the Kopp Act, commercial health plans to
assess their members' language preference and provide
interpretation and translation services in threshold
languages.
3. Requires hospitals to provide language services,
interpreters, or bilingual staff, under specified
circumstances, and to identify and record patients' primary
languages in hospital records.
4. Requires, under the Dymally-Alatorre Bilingual Services Act,
state and local agencies providing services to a substantial
number of non-English speaking people to provide bilingual
services.
This bill:
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Creation and Administration of 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 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, in consultation with the
Community Advisory Committee (CAC), to prohibit duplicate
payments to CommuniCal interpreters and Medi-Cal managed care
plans (MCP) for services provided to Medi-Cal MCP enrollees.
4. Permits a health care provider and other entities entering
into a Medi-Cal managed care contract with the state to
utilize CommuniCal to provide medical interpreter services to
Medi-Cal beneficiaries.
5. Requires all contracts between Medi-Cal managed care
organizations (MMCOs) and their subcontractors to include
provisions describing access to CommuniCal medical
interpreter services.
6. Requires DHCS, in consultation with CAC, to pursue all
available sources of federal funding to establish and operate
CommuniCal and to seek any federal approvals necessary to
implement this article.
7. Requires CommuniCal to include in-person, telephonic, and
video medical interpretation services by a CommuniCal
interpreter.
8. Provides that, whenever possible, in-person interpreter
services shall be the preferred mode of interpretation in the
following instances:
A. Family meeting regarding medical care;
B. Medical encounters involving difficult or agitated
patients;
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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.
9. Requires CommuniCal to be administered by a patient-centered
communication broker.
10.Requires DHCS to create and administer a competitive Request
for Proposals (RFP) for the communication broker who shall be
responsible for the following duties:
A. Registering CommuniCal interpreters with Medi-Cal;
B. Verifying Medi-Cal eligibility of an interpreter to
provider CommuniCal services with DHCS;
C. Verifying Medi-Cal eligibility for interpreter services
utilizing the state's Medi-Cal Eligibility Data System
(MEDS);
D. Submitting billing summaries to Medi-Cal and
aggregating the cost for services provided;
E. Ensuring compliance with Medi-Cal and applicable
CommuniCal reporting requirements;
F. Making payments to CommuniCal interpreters, including
any dues and fee service deductions;
G. Scheduling CommuniCal interpreter appointments with
Medi-Cal providers;
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H. Monitoring the quality of CommuniCal interpreter
services and complying with state oversight requirements
of CommuniCal, as specified;
I. Creating CommuniCal promotional materials for
distribution to providers, MMCOs and beneficiaries; and
J. Any other duties deemed to be appropriate by the CAC.
11.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.
12.Requires interpreters to be certified as a CommuniCal
interpreter by DHCS to participate in CommuniCal.
13.Requires CommuniCal interpreters to be responsible for all of
the following:
A. Preforming interpreter services independent of other
policies, rules, or procedures;
B. Preforming interpreter services independent of
direction;
C. Preparing and submitting documentation to the broker in
support of time worker or services rendered; and,
D. Directing and controlling the manner and means of
interpretation services.
14.Permits, unless otherwise prohibited, CommuniCal interpreters
to advertise, promote, or otherwise communicate availability
for services to the general public and provide office space,
equipment, support services, forms, supplies, and business
cards.
15.Provides that for the purposes of the CommuniCal program:
A. CommuniCal interpreters are independent contractors of
the state;
B. CommuniCal interpreters are not employees of the
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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 CommuniCal interpreters and their exclusive
representatives.
16.Establishes the base reimbursement rate for CommuniCal
interpreters to be subject to collective bargaining and
authorizes the rate to be adjusted, in consultation with the
CAC, for factors such as geography, language spoken,
availability of interpreters, level of certification, travel
time, or other factors.
17.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.
18.Establishes the CommuniCal Program Fund (Fund) in the state
treasury and requires any interest and dividends earned by
the Fund be retained in the Fund for specified purposes.
Provides that moneys in the Fund are to be used solely to
fund the CommuniCal program.
Certification and Registration of CommuniCal Medical
Interpreters
19.Provides that the DHCS shall serve as the CommuniCal
interpreter certifying body, and requires DHCS, as the
certifying body to:
A. Develop, monitor and evaluate interpreter competency,
qualifications, training, certification, and continuing
education requirements for medical interpreters.
B. Approve an examination and certification process, in
consultation with CAC, to test and certify the
competency of medical interpreters by September 1, 2014.
20.Requires that, as a condition of certification, an
interpreter complete at least one of the following and
specifies that upon completing one of the following, the
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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 DHCS 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; or
C. Achieve the designation of Certified Healthcare
Interpreter from the Certification Commission for
Healthcare Interpreters or Certified Medical Interpreter
from the National Board of Certification for Medical
Interpreters.
21.Establishes an alternate certification process, beginning
July 1, 2014, for interpreters of languages for which a CCMI
examination has not been created and requires it to consist
of a screening test established by DHCS, in consultation with
CAC that contains the following:
A. A written component testing for specified knowledge,
skills and abilities including, managing an interpreter
encounter, health care terminology, interacting with
other health care professionals, preparing for an
interpreting encounter, and cultural responsiveness;
and
B. An oral component utilizing the target language to
test his/her linguistic and interpreting skills.
22.Requires, by July 1, 2014, an interpreter to be CCMI
certified or authorized to provide CommuniCal services
through the alternate certification process referenced in 21)
in order to provide CommuniCal services.
23.Requires DHCS to maintain a list of authorized CommuniCal
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interpreters called the CommuniCal Medical Interpreter
Registry.
24.Permits DHCS, in order to meet anticipated demand, to
authorize an interpreter to provide CommuniCal services prior
to becoming certified if the interpreter meets all of the
following requirements:
A. Is at least 18 years of age and demonstrates that as
of January 1, 2014 he or she has worked regularly and
professionally as an in-person medical interpreter
during the previous two years;
B. Holds a minimum of a Untied States high school
diploma or General Education Development (GED), or its
equivalent from another country; and
C. Has demonstrated linguistic proficiency in English
and another specified language.
25.Specifies that an individual authorized under the provisional
requirements who does not subsequently become certified or
receive permanent authorization by January 1, 2016, is no
longer be authorized to provide CommuniCal services.
26.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.
27.Requires CommuniCal interpreters to pay a registry and
certification or authorization fee, by July 1 of each year,
in order to remain on the registry.
28.Requires DHCS to establish, maintain, administer and publish
annually an updated registry of CommuniCal interpreters and
permits DHCS to remove the name of a person from the registry
if the person is deceased, notifies the board that they are
unable to work, does not submit an authorization or renewal
fee, or fails to meet the quality standards and medical
certification requirements.
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29.Waives, for the 2013-14 fiscal year only, the fee for
certification and listing on the registry.
30.Requires DHCS 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 and determine the testing
requirements for certification in each language.
31.Requires a CAC to be established to make recommendations on
interpreter certification and services and to assist with
developing standards and requirements.
32.Requires the CAC to include stakeholders that reflect the
diversity of the state in terms of race, ethnicity, gender,
sexual orientation, immigration status, and geography,
including representatives from government, health care
providers, LEP consumers, health care or language access
advocates, medical or health care interpreters, and any other
individual DHCS deems appropriate.
33.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.
34.Specifies that, unless otherwise specified, the relationship
of CommuniCal interpreters to all parties and recipients of
service is one of independent contractor.
Collective Bargaining for CommuniCal Certified Medical
Interpreters
35.Requires only CommuniCal interpreters be represented by a
labor organization for the purposes of collective bargaining
as established by this bill.
36.Grants CommuniCal interpreters the right to form, join, and
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participate in the activities of a labor organization of
their own choosing for purpose of representation.
37.Applies the state action antitrust exemption and state and
federal antitrust laws to the activities of CommuniCal
interpreters and their exclusive representatives.
38.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 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.
39.Requires the appropriate bargaining unit for CommuniCal
interpreters to be a statewide unit of eligible CommuniCal
interpreters.
40.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.
41.Requires DHCS to furnish, upon request by a labor
organization that is signed by 20% of CommuniCal
interpreters, a list of all CommuniCal interpreters including
full names, telephone numbers, e-mail addresses and mailing
or home address to the labor organization within 5 days of
the request.
42.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
representation to the labor organization. Requires, if less
than a majority but at least 30% of CommuniCal interpreters
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desire to be represented exclusively by that labor
organization, the matter to be set for a mail ballot
election.
43.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.
44.Requires any representation election to be a mail ballot
election.
45.Establishes requirements for a pre-election 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.
46.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.
47.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.
48.Requires PERB to initiate a mail ballot election within 10
days of the execution of a directed election order or consent
election agreement. 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.
49.Requires a pre-election meeting between the labor
organization and the state 30 minutes prior to the mailing of
ballots for the purpose of resolving any final issues.
50.Requires PERB to validate the ballots against the list of
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CommuniCal interpreters provided by DHCS.
51.Requires discussions and collective bargaining between the
certified labor organization and the state and its designated
agents to commence within 30 days upon certification and at
any time thereafter upon request of the labor organization.
52.Requires the state, through its designated agents 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.
53.Provides that an agreement resulting from collective
bargaining be legally binding, reduced to writing, and
presented to the appropriate governing body in the form of a
binding agreement, resolution, bill, law, or other form
required for adoption.
54.Prohibits anything in this bill from affecting 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.
55.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 and requires a complaint alleging a
violation of this provision to be processed as an unfair
practice charge.
56.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.
57.Prohibits the state from encouraging or discouraging
membership in a labor organization, or discriminating against
any CommuniCal interpreter.
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58.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.
59.Provides, in the event of a judicial declaration declaring
any provision invalid, the remaining provisions remain in
force.
Comments
Data on language in California. According to the US Census
Bureau 2010 American Community Survey, 43.7% of Californians
over the age of five speak a language other than English, and
19.9% of Californians over the age of five speak English "less
than very well." According to the California Health Interview
Survey, of the 3.5 million adults in the Medi-Cal program, about
281,000 (8.1%) had difficulty understanding their doctor and/or
needed another person to help them understand their doctor.
Among the parents of 1.8 million children under age 12 in the
Medi-Cal program, about 135,000 (7.4) had difficulty
understanding the child's doctor and/or needed another person's
help to understand the doctor.
Prior legislation
AB 2392 (Perez) would have required DHCS to establish the
CommuniCal program to provide and reimburse for certified
medical interpretation services provided to Medi-Cal
beneficiaries who are LEP. AB 2392 would have established the
State Personnel Board as the certifying body for the CommuniCal
CCMI, and would have required CommuniCal to be administered by a
patient-centered communication broker that is a third-party
administrator. AB 2392 was moved to the Assembly inactive file
on concurrence.
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
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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.
SB 1405 (Soto of 2006) would have required 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.
AB 800 (Yee, Chapter 313, Statutes of 2005) requires all health
facilities (hospitals, skilled nursing facilities, intermediate
care facilities, correctional treatment centers) and all primary
care clinics to include a patient's principal spoken language on
the patient's health records.
SB 853 (Escutia, Chapter 713, Statutes of 2003) requires the
Department of Managed Health Care and the Department of
Insurance to adopt regulations to ensure enrollees have access
to language assistance in obtaining health care services.
FISCAL EFFECT : Appropriation: No Fiscal Com.: Yes
Local: No
According to the Senate Appropriations Committee:
One-time costs of $1.4 million to develop program guidelines,
seek necessary federal approvals, and develop billing systems
(50% General Fund, 50% federal funds).
One-time costs of about $50,000 to develop regulations
relating to collective bargaining of translators by PERB
(General Fund).
One-time costs of about $90,000 and ongoing costs of about
$50,000 to oversee an election by translators to choose a
collective bargaining agent by PERB (General Fund).
Periodic costs up to $1 million for negotiating a memorandum
of understanding with the established bargaining unit and
overseeing the implementation by the Department of Human
Resources (General Fund).
Ongoing costs of about $30 million per year to provide
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translation services in fee-for-service Medi-Cal (General Fund
and federal funds).
Unknown costs in Medi-Cal managed care (General Fund and
federal funds). Under existing law, health plans are required
to provide interpretation services, including managed care
plans that contract with the DHCS. It is unclear whether this
bill's requirement to provide "certified medical
interpretation services" at reimbursement rates subject to
collective bargaining will increase costs for translation
services, above the costs already being incurred.
The federal financial participation rate for the costs above
may vary. For interpretive services provided to children and
their family members, the state can claim a 75% federal
financial participation rate. However, those costs are only
eligible for a 75% federal cost share if they are billed as
administrative costs (as opposed to benefits). For childless
adults, the rate is generally 50%.
SUPPORT : (Verified 9/3/13)
AFSCME
Access California Services, Anaheim
Asian Americans for Civil Rights and 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 Church IMPACT
California Immigrant Policy Center
California Pan-Ethnic Health Network
Cambodian Buddhist Society of San Diego
Campeonas de la Salud, San Jose
Catholic Charities of Santa Clara County
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
East Bay Sanctuary Covenant, Berkeley
Eastside Neighborhood Center, San Jose
Fresno Interdenominational Refugee Ministries
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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
Latino Coalition for a Healthy California
Latino Democrat Club
Little Saigon Foundation, San Diego
Los Angeles County Federation of Labor
Low-Income Self-Help Center
Mid-City Community Advocacy Network
National Association for the Advancement of Colored People, San
Diego
National Association of Social Workers, California Chapter
National Hmong American Farmers, Fresno
Operation Samahan, National City
Planned Parenthood Affiliates of CA
Russian Orthodox Church, San Diego
San Diego and Imperial Counties Labor Council AFL-CIO
San Diego LGBT Pride
San Diego Vietnamese Senior Club, San Diego
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
United Domestic Workers of America/AFSCME Local 3930
Viet-CARE, Westminster
Vietnamese Community of San Diego
Wat Lao Buddhavam of San Diego
OPPOSITION : (Verified 9/3/13)
National Right to Work Committee
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ARGUMENTS IN SUPPORT : The California Pan-Ethnic Health
Network writes that California's population is one of the most
diverse in the country with over 100 different languages spoken
and an estimated 6 to 7 million Californians LEP. Barriers to
communication in the health care setting can result in increased
risk of misdiagnoses and misunderstandings, resulting in lower
quality care and reduced adherence to medication. The American
Federation of State, County and Municipal Employees (AFSCME)
argue that communication is critical to quality of care and
cultural competency in our state's Medicaid program. With the
expansion of Medi-Cal and the exchange market under the ACA, the
state has a clear opportunity to create an interpreters program
that will allow patients and providers to clearly communicate
with each other. Health Access California maintains that
building a strong workforce of certified interpreters is crucial
to adequately serving the hundreds of thousands of LEP
Californians who will be coming into coverage in the new world
of health reform. This is an important measure that will help
ensure that newly insured Californians can truly benefit from
their new access to care.
ARGUMENTS IN OPPOSITION : The National Right to Work Committee
states that this bill would grant union bosses monopoly
bargaining powers over virtually all CCMIs operating under the
program, stripping every one of these individuals of the
fundamental right to negotiate for themselves. If this bill
passes, independent contractors would be forced to union boss
representation and would then have union dues stripped from
their compensation and transferred straight to the treasury of
the Big Labor representative they didn't want.
ASSEMBLY FLOOR : 55-23, 5/29/13
AYES: Achadjian, Alejo, Ammiano, Atkins, Bloom, Blumenfield,
Bocanegra, Bonilla, Bonta, Bradford, Brown, Buchanan, Ian
Calderon, Campos, Chau, Chesbro, Cooley, Daly, Dickinson,
Eggman, Fong, Fox, Frazier, Garcia, Gatto, Gomez, Gonzalez,
Gordon, Gray, Hall, Roger Hernández, Jones-Sawyer, Levine,
Lowenthal, Medina, Mitchell, Mullin, Muratsuchi, Nazarian,
Nestande, Pan, Perea, V. Manuel Pérez, Quirk, Quirk-Silva,
Rendon, Salas, Skinner, Stone, Ting, Weber, Wieckowski,
Williams, Yamada, John A. Pérez
NOES: Allen, Bigelow, Chávez, Conway, Dahle, Donnelly, Beth
Gaines, Gorell,
Grove, Hagman, Harkey, Jones, Linder, Logue, Maienschein,
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Mansoor, Melendez, Morrell, Olsen, Patterson, Wagner, Waldron,
Wilk
NO VOTE RECORDED: Holden, Vacancy
JL:d 9/3/13 Senate Floor Analyses
SUPPORT/OPPOSITION: SEE ABOVE
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