BILL ANALYSIS                                                                                                                                                                                                    Ó



                                                                  AB 2264
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          Date of Hearing:  April 1, 2014

                            ASSEMBLY COMMITTEE ON HEALTH
                                 Richard Pan, Chair
                AB 2264 (Levine) - As Introduced:   February 21, 2014
           
          SUBJECT  :  Clinics: licensure and regulations: exemptions.

           SUMMARY  :  This bill expands the exemption from licensing by the  
          Department of Public Health (DPH) for clinics operated by a  
          federally recognized tribe or tribal organization.   
          Specifically,  this bill  :  

          1)Exempts clinics operated by a tribe or tribal organization,  
            regardless if the clinic is located on tribal land, from  
            obtaining a license from DPH.

          2)Requires the exempted clinic to operate under a contract with  
            the United States pursuant to the Indian Self Determination  
            and Education Assistance Act.
           
           EXISTING STATE LAW  :  

          1)Requires clinics to be licensed by DPH.  Provides for  
            exemptions from these licensing requirements for certain types  
            of clinics.  Some of the types of clinics that qualify for the  
            exemption include federally operated clinics, local government  
            primary care clinics, clinics affiliated with an institution  
            of higher learnings, clinics conducted as outpatient  
            departments of hospitals, and community or free clinics.

          2)Exempts from this licensing requirement clinics operated by a  
            federally recognized Indian tribe or tribal organization on  
            land recognized as tribal land by the federal government.

          3)Authorizes DPH to take various types of enforcement actions  
            against a primary care clinic that has violated state law or  
            regulation, including imposing fines, sanctions, civil or  
            criminal penalties, and suspension or revocation of the  
            clinic's license.

          4)Requires a provider to apply to the Department of Health Care  
            Services (DHCS) to obtain approval for participating in the  
            Medi-Cal program and to apply and obtain DHCS approval for  
            enrollment.  Specifies the extensive application requirements.








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          5)Requires clinics to meet specified standards and be approved  
            for operation by DPH prior to obtaining a Medi-Cal provider  
            number or providing services.  DPH is delegated this function  
            by the federal Centers for Medicare and Medicaid Services. 

          6)Grants DHCS various enforcement powers over enrolled providers  
            and the enrollment process including instituting a moratorium  
            on enrollment, suspending providers from the program,  
            deactivating of the provider number, auditing, and carrying  
            out unannounced inspections.

          7)Creates within DPH the Indian Health Program whose mission is  
            to improve the health status of American Indians living in  
            urban, rural, and reservation or rancheria communities in  
            California.
           EXISTING FEDERAL LAW  allows the federal government to contract  
          with federally recognized tribes for health services within the  
          California contract health service delivery area.  Excludes from  
          the California area the Counties of Alameda, Contra Costa, Los  
          Angeles, Marin, Orange, Sacramento, San Francisco, San Mateo,  
          Santa Clara, Kern, Merced, Monterey, Napa, San Benito, San  
          Joaquin, San Luis Obispo, Santa Cruz, Solano, Stanislaus, and  
          Ventura.

           FISCAL EFFECT  :  This bill has not been analyzed by a fiscal  
          committee.

           COMMENTS  :

           1)PURPOSE OF THIS BILL  .  According to the author, this bill  
            creates a single licensing standard for tribally operated  
            clinics, by clarifying that the exemption from clinic  
            licensing in existing law for clinics operated by federally  
            recognized tribes applies to clinics that are not located  
            within Indian country.  The author notes when tribally  
            operated health programs operate a clinic on federal Indian  
            trust land or in affiliation with an institution of higher  
            learning they are exempt from licensure.  These exemptions are  
            found in Health and Safety Code sections 1206.  However if a  
            clinic does not have an affiliation with an institution of  
            higher learning and is not within Indian Country then it must  
            be licensed.  According to the author, this can create a  
            scenario where a health program operating multiple clinics may  
            have very different licensing requirements and cause an undue  








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            organizational burden for a clinic that is dedicated to health  
            delivery.  
             
             According to the author, this bill will not diminish the  
            quality of care provided by tribal health programs.  The  
            author notes that clinics that are exempt from licensure must  
            still be certified under the same standards as Medi-Cal  
            providers under existing state regulations.  The author also  
            states tribal health programs are one of the few Medi-Cal  
            providers in their areas, and the bill would result in more  
            services becoming available to Medi-Cal clients.  

           2)BACKGROUND  .  There are approximately 1,000 primary care  
            clinics currently licensed in California.  In order to obtain  
            a license, a primary care clinic must submit an application  
            and fee to DPH, and pass an initial licensure survey conducted  
            by DPH.  Upon receipt of a completed application for a clinic  
            license, DPH has up to 100 days to either grant or deny the  
            license.  Existing law requires DPH to issue a provisional  
            license, good for six months from the date of issuance, to a  
            clinic that has not been previously licensed.  DPH is required  
            to inspect the clinic within 30 days prior to the termination  
            of the provisional license, and, if the clinic meets all  
            licensure requirements, issue a regular license.  Clinics that  
            do not meet the requirements for licensure, but make progress  
            toward meeting the requirements, may have their provisional  
            license renewed by DPH for another six months.

            Even if a clinic is exempt from state licensure, it may have  
            to follow the same requirements if it applies to be enrolled  
            as a Medi-Cal provider.  DHCS has an extensive application  
            process for any applicant, but specifically for exempt  
            clinics.  DPH inspects the clinics and ensures they meet the  
            same requirements as licensed clinics.

           3)TRIBAL HEALTH SERVICES  .  The federal government has a major  
            role in providing health care services to American Indians.   
            The federal government's obligation began with the terms of  
            many treaties where the federal government promised health  
            care as one of the conditions of these treaties.  Over time  
            the obligation has endured, but the means for carrying it out  
            has undergone significant change.  A landmark change occurred  
            when the Snyder Act was passed in 1921 which better defined  
            the federal responsibility, consolidated various programs, and  
            assigned responsibility to the Bureau of Indian Affairs.   








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            Their responsibilities were later transferred to the  
            forerunner of today's Department of Health and Human Services  
            and administered by the newly created Indian Health Service  
            (IHS).  Another significant change came with the enactment in  
            1975 of the Indian Self-Determination and Education Act  
            (Public Law 93-638).  Enactment of this law marked the  
            beginning of a period when the tribes began taking more  
            responsibility and a direct role in providing health services.  
             Health services may still be provided by the IHS but as an  
            alternative they can be provided by a contracting tribe, a  
            program which has grown markedly over the years.

            The IHS provides health services to members of federally  
            recognized tribes and other eligible Indians, as specified.   
            The health services have been described as universal  
            eligibility but limited availability, a further factor in the  
            tribes taking more responsibility for the direct provision of  
            services.  The IHS oversees health programs over portions of  
            the state.  By federal law, the area is limited to the 38  
            counties with American Indian trust lands, generally meaning a  
            reservation or rancheria.  Within the included counties there  
            is a service population of approximately 130,000 eligible  
            American Indians.  The IHS divides their service area in  
            California into smaller administrative units called services  
            units.  These services units have responsibility for planning,  
            managing and evaluating the health programs in its  
            jurisdiction.  They are focused on a specific geographic area  
            and are usually centered on a single federal reservation.  It  
            is within these services units that a tribe or consortium of  
            tribes can operate clinics under contract with the federal  
            government.

            Although the clinics are established to provide services to  
            specified American Indians they are open to all.  The  
            proportion of non-Indians using these clinics varies  
            dramatically.  In some smaller rural areas without many health  
            care facilities, the proportion of non-Indians can be quite  
            significant accounting for about half the patients seen.  In  
            other clinics, Indians comprise the overwhelming majority.

           4)GREENVILLE RANCHERIA  .  The Greenville Rancheria Tribal Health  
            program administers several clinics in Greenville and Red  
            Bluff.  Two of these clinics have exemptions; one is on tribal  
            land and another is exempt because it is affiliated with an  
            institution of higher learning.  A third clinic is  








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            administered by the tribe which reports it operates all three  
            clinics in a similar fashion, but it is on land owned by the  
            tribe.  The Greenville Rancheria argued the third clinic  
            should also be exempt because it is on land owned by the  
            tribe; the state disagreed stating although the land was owned  
            by the tribe, the land in question is not federal trust land  
            such as a reservation or Rancheria and the statute is limited  
            to only those lands.  This difference of opinion raises a  
            question about the interpretation of existing law.

           5)SUPPORT  .    The California Rural Indian Health Board, a tribal  
            organization operating 11 clinics for 30 tribal governments,  
            argues this bill will make a needed change by providing a  
            single, standard exemption to the requirement for clinic  
            licensure for tribal health program and have no impact on the  
            requirements under which clinics operate and will expedite  
            opening clinics that service Medi-Cal clients.  They note that  
            a tribal health program with more than one clinic site may  
            have each site fitting a different licensing or exemption  
            category, resulting in administrative confusion for the health  
            program.  The California Rural Indian Health Board also  
            asserts this bill will not change the quality of care provided  
            by the tribal health programs because the exempt clinics must  
            still be certified as Medi-Cal providers.  The licensing  
            standards and the certification standards are the same and are  
            found in California regulations.  Other tribes and tribal  
            consortiums support this bill because it will allow tribal  
            health clinics to have all of their sites of services be  
            similarly categorized as exempt from licensure.  They also  
            note that state law creates confusion because of the state's  
            interpretation of "lands owned by the tribe" which the state  
            interprets to mean federal trust lands whereas federal law  
            recognizes lands owned by a tribe, regardless of the trust  
            status.

           6)POSSIBLE AMENDMENTS.   Given the possible confusion about the  
            existing exemption, it could be clarified to refer only to  
            federal trust lands, principally reservations, and rancherias,  
            not any other lands owned by a tribe.  That amendment taken  
            alone would be contradictory to what the author is attempting  
            to do as it would be seen as narrowing the current exemption.

            Given the quite extensive government to government  
            relationship between the tribes and the State of California,  
            the Committee may want to pursue an alternative path to  








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            exemption.  Existing law generally exempts clinics owned or  
            operated by government entities.  There is a blanket exemption  
            for clinics operated by the state and federal governments and  
            an exemption for primary care clinics operated by local  
            governments.  Given the extensive government to government  
            relationship between the state and tribes, the Committee may  
            want to consider if this alternative exemption is more  
            appropriate, if it wants to expand the existing exemption.


           REGISTERED SUPPORT / OPPOSITION  :  

           Support 
           California Rural Indian Health Board, Inc.
          Chapa-De Indian Health Program, Inc.
          Consolidated Tribal Health Project, Inc.
          Greenville Rancheria
          Pit River Health Service, Inc.
          Redding Rancheria Tribal Government
          United Indian Health Services, Inc.
          Sonoma County Indian Health Project
          Warner Mountain Indian Health Project

           Opposition 
           
          None received
           

          Analysis Prepared by  :    Roger Dunstan / HEALTH / (916) 319-2097