BILL ANALYSIS Ó AB 2264 Page 1 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. AB 2264 Page 2 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 AB 2264 Page 3 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. AB 2264 Page 4 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 AB 2264 Page 5 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 AB 2264 Page 6 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