BILL ANALYSIS Ó AB 2325 Page 1 Date of Hearing: April 23, 2014 ASSEMBLY COMMITTEE ON PUBLIC EMPLOYEES, RETIREMENT AND SOCIAL SECURITY Rob Bonta, Chair AB 2325 (Perez) - As Introduced: February 21, 2014 SUBJECT : Medi-Cal: CommuniCal. SUMMARY : Requires the California 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 interpreters at DHCS and grants CommuniCal interpreters collective bargaining rights with the state. Specifically, this bill : 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, beginning July 1, 2015, CommuniCal to offer medical interpretation services to Medi-Cal providers provide services on either a fee-for-service or managed care basis. 3)Requires DHCS to adopt policies to prohibit duplicate payments to CommuniCal interpreters and Medi-Cal managed care organizations (MCOs) for services provided to their Medi-Cal 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 MCOs and their subcontractors to include provisions describing access to CommuniCal medical interpreter services. 6)Requires DHCS to pursue all available sources of federal funding to establish and operate CommuniCal and to seek any AB 2325 Page 2 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)Requires a Community Advisory Committee (CAC) be established to make recommendations on interpreter certification and services and to assist with developing standards and requirements. 9)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. 10)Specifies the instances in which in-person interpreter services are to be the preferred mode of interpretation, whenever possible. 11)Requires CommuniCal to be administered by a patient-centered communication broker. 12)Requires DHCS to create and administer a competitive Request for Proposals for the communication broker and specifies the duties for which the communication broker is responsible. 13)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. 14)Requires interpreters certified or authorized under the requirements contained in this bill can participate in CommuniCal. 15)Requires CommuniCal interpreters to be responsible for all of the following: a) Performing interpreter services independent of other policies, rules, or procedures; b) Performing interpreter services independent of AB 2325 Page 3 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. 16)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. 17)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 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. 18)Establishes the base reimbursement rate for CommuniCal interpreters to be subject to collective bargaining. Allows reimbursement 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. 19)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. 20)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 for the CommuniCal program. AB 2325 Page 4 Certification and Registration of CommuniCal Medical Interpreters: 1)Provides that 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; and, b) Approve an examination and certification process, in consultation with CAC, to test and certify the competency of medical interpreters by September 1, 2015. 2)Requires DHCS to maintain a list of authorized CommuniCal interpreters called the CommuniCal Medical Interpreter Registry (Registry). 3)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 interpreter shall be certified as a CommuniCal Certified Medical Interpreter (CCMI) and listed on the 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; 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; or, d) Hold a current interpreter's certification as a court interpreter. 4)Requires DHCS to authorize CommuniCal services to be provided by an interpreter of less common languages or languages for AB 2325 Page 5 which a CCMI examination has not been created, and requires DHCS to establish a test, 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 or her linguistic and interpreting skills. 5)Requires, by July 1, 2015, an interpreter to be CCMI certified or authorized by DHCS to provide CommuniCal services. 6)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, 2015, 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 United 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. 7)Specifies that an individual authorized under the provisional requirements, who does not subsequently become certified or receive permanent authorization by January 1, 2017, is no longer be authorized to provide CommuniCal services. 8)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 for certification, authorization, and listing on the Registry that does not exceed the reasonable costs. 9)Requires CommuniCal interpreters to pay a Registry and AB 2325 Page 6 certification or authorization fee, by July 1 of each year, in order to remain on the Registry. 10)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. 11)Waives, for the 2014-15 fiscal year only, the fee for certification and listing on the Registry. 12)Requires DHCS to adopt quality standards and medical interpretation certification requirements through regulations, which address maintaining patient confidentiality and familiarity or experience working with medical terminology, testing requirements and languages where standards permit interpret certification. 13)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. 14)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: 1)Authorizes CommuniCal interpreters to be represented by a labor organization for the purposes of collective bargaining. Applies the state action antitrust exemption and state and federal antitrust laws to the activities of CommuniCal interpreters and their exclusive representatives. 2)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 AB 2325 Page 7 state of California on matters of mutual concern, including but not limited to, a list of specific provisions, including: a) Development, maintenance and application of the registry; b) The setting of reimbursements and rates for state-funded medical interpreter programs; c) The allocation, process, procedure, distribution, methodology, and manner of payment of interpreter reimbursements and rates: d) Professional development, certification and training, recruitment and retention of interpreters, and language access quality standards; e) Dispute resolution mechanisms binding on third-party administrators and their subcontractors; f) Mechanisms and funding to improve interpreter programs and their stability; g) Scheduling systems of interpreter services; h) Mediums and modes of delivery of interpretation services; i) The improvement and expansion of quality medical interpretation services; and, j) The collection and disbursement of dues or fees to the exclusive representative. 3)Specifies that these provisions do not apply to work performed as an employee of an employer. 4)Requires the appropriate bargaining unit for CommuniCal interpreters to be a statewide unit of eligible CommuniCal interpreters. 5)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. AB 2325 Page 8 6)Defines labor organization for purpose of these provisions. 7)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 five days of the request. 8)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 labor organization is currently certified as the exclusive representative, to certify and grant exclusive 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 administered by PERB. 9)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. 10)Requires any representation election to be a mail ballot election. 11)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. Specifies that the state shall be represented by the Department of Human Resources (CalHR) and DHCS. 12)Prohibits other labor organizations from being allowed to intervene in an election unless, prior to the pre-election conference, the intervening labor organization shows at least 30% of the CommuniCal interpreters desire to be represented exclusively by the intervening labor organization. 13)Requires PERB to determine all issues or matters in dispute AB 2325 Page 9 and 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. 14)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. 15)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 and requires the election to be conducted in accordance with the procedures established in the consent election agreement or directed election order. 16)Requires PERB to determine the date and time ballots must be received by for tabulation, which cannot be sooner than 10 days or more than 20 days from the date voting begins. 17)Requires PERB to validate the ballots against the list of CommuniCal interpreters provided by DHCS. 18)Specifies that the labor organization certified by PERB as receiving a majority of the valid votes cast is the exclusive representative of all eligible CommuniCal interpreters and requires all CommuniCal interpreters eligible for bargaining to be part of the bargaining unit and represented by the certified labor organization. 19)Requires discussions and collective bargaining between the certified labor organization and the state and its designated agents, CalHR and DHCS, to commence within 30 days upon certification and at any time thereafter upon request of the labor organization. 20)Requires the state and its designated agents to meet with the certified labor organization before any collective bargaining regulation is proposed, promulgated, set or otherwise AB 2325 Page 10 presented. 21)Requires any agreement resulting from collective bargaining be legally binding upon the state, committed 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. Specifies that this provision does not prevent the parties from agreeing to and implementing provisions of an agreement which have received legislative approval or do not require legislative action. 22)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. 23)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 and requires a complaint alleging a violation of this provision to be processed as an unfair practice charge by PERB, as specified. 24)Specifies that the execution of a valid written agreement between the state and the certified labor organization shall 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. Prohibits an application or petition for certification from being valid within one year of any prior certification. 25)Prohibits the state from encouraging or discouraging membership in a labor organization, or discriminating against any CommuniCal interpreter. Prohibits a CommuniCal interpreter from being subject to punitive action, or threatened with punitive action, for exercising lawful action as an elected, appointed, or recognized representative of a bargaining unit. 26)Permits the state to adopt reasonable rules and regulations AB 2325 Page 11 after consultation in good faith with representatives of a certified labor organization for administration of CommuniCal interpreter labor relations under this bill. 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 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 state and local agencies providing services to a substantial number of non-English speaking people to provide bilingual services. 5)Establishes PERB as a quasi-judicial administrative agency charged with administering the collective bargaining statutes covering employees of California's public schools, colleges, and universities, employees of the State of California, employees of California local public agencies (cities, counties and special districts), trial court employees and AB 2325 Page 12 supervisory employees of the Los Angeles County Metropolitan Transportation Authority. FISCAL EFFECT : Unknown. COMMENTS : According to the author, more than 40% of Californians speak a language other than English at home. Almost 7 million Californians are estimated to speak English "less than very well." 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 notes, often language assistance in medical settings is provided by trained or untrained staff or in an informal manner by family members or friends. The author argues, 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 following information was provided to this Committee by the Assembly Committee on Health: 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. Federal Matching Funds: The Children's Health Insurance Program Reauthorization Act (CHIPRA), Public Law 111-3, enacted on February 4, 2009, contains provisions that affect two important federal programs providing funding to states for healthcare program, CHIP and Medicaid. In July 2010, the Centers for Medicare and Medicaid Services (CMS) provided guidance on the implementation of Section 201(b) of CHIPRA, which provides increased administrative funding for translation or interpretation services provided under AB 2325 Page 13 CHIP and Medicaid. Under Medicaid, increased federal funding for translation and interpretation services available under CHIPRA is limited to children and family members of those children. Under CHIP, increased federal funding for translation and interpretation services 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 is typically 50% in California for Medi-Cal and 65% for those receiving services funded by CHIP). Both CHIPRA and Medicaid provide enhanced federal match of 75% for translation services. Federal Guidance: Title VI of the Civil Rights Act of 1964 and its implementing regulations provide that no person shall be subject to discrimination on the basis of race, color, or national origin under any program or activity that receives federal financial assistance. Each federal department has a civil rights office that is charged with ensuring that its programs are free of discrimination. The federal Department of Health and Human Services (HHS) Office for Civil Rights (OCR) responsibilities include enforcing the Civil Rights Act, the Americans with Disabilities Act, and the Age Discrimination Act. Any organization or individual who receives monies through HHS-health departments, health plans, social service agencies, nonprofits, hospitals, clinics, and physicians-is subject to OCR oversight. The OCR has the authority to investigate complaints related to linguistic barriers, to initiate its own reviews, and to withhold federal funds for noncompliance. CMS issued a State Medicaid Director letter on August 31, 2000, that informed states of the policy guidance that the OCR had issued on the prohibition against national origin discrimination as it affects persons with LEP, pursuant to Title VI of the Civil Rights Act of 1964. OCR Policy Guidance requires recipients of federal assistance to take reasonable steps to ensure meaningful AB 2325 Page 14 access to their programs and activities by LEP persons. The guidance explains that the obligation to provide meaningful access is fact-dependent and starts with an individualized assessment that balances four factors: a) the number or proportion of LEP persons eligible to be served or likely to be encountered by the program or grantee; b) the frequency with which LEP individuals come into contact with the program; c) the nature and importance of the program, activity or service provided by the grantee/recipient to its beneficiaries; and, d) the resources available to the grantee/recipient and the costs of interpretation/ translation services. CMS states there is no set solution for Title VI compliance with respect to LEP persons, and what constitutes reasonable steps for large providers may not be reasonable where small providers are concerned. Support: The American Federation of State, County and Municipal Employees speaking in support of the measure, 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. The United Domestic Workers state by expanding patient access to trained medical interpreters the state will improve the quality and coordination of care in our state's Medi-Cal program. The City and County of San Francisco note research has found that language barriers can contribute to inadequate patient evaluation and diagnosis; lack of appropriate and or timely treatment and other medical errors that jeopardize patients' safety and lead to unnecessary procedures and costs. The Western Center on Law and Poverty supports this bill because the implementation of the CommuniCal program would create a system that provides high-quality language assistance to beneficiaries. Planned Parenthood Affiliates of California note that language assistance is often done in an informal manner by friends or family members, including children of these patients and these informal translators are often limited in their ability to accurately translate important and sensitive medical information. Support if Amended: The California Healthcare Interpreting Association supports the bill because it would set minimum standards for healthcare interpreting and provide federal AB 2325 Page 15 funding streams and payment mechanisms for providing language assistance in Medi-Cal and other government programs. They are concerned the bill emphasizes in-person interpreting, an approach they argue may be unworkable at certain settings based on frequency of need and the language required. In addition, the association argues staff interpreters may be more cost-effective than hiring outside contractors and these staff interpreters may already be part of a bargaining unit. Opposition: The National Right to Work Committee argues this bill will grant union bosses monopoly bargaining powers over virtually all interpreters 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 accept 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. Prior Legislation: AB 1263 (John A. Pérez) of 2013 was substantially similar to this bill. AB 1263 was vetoed by Governor Brown who expressed concern given the substantial growth in Medi-Cal as a result of health care reform, he did not believe would be wise to start a new program. AB 2392 (John A. Pérez) of 2012 was substantially similar to this bill with the exception of naming the State Personnel Board as the certifying body for the CommuniCal program. AB 2392 was held on the inactive file when the bill was in the Assembly for 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 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 Governor Brown who said these types of policies should be developed at the AB 2325 Page 16 local level. 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 California Department of Insurance to adopt regulations to ensure enrollees have access to language assistance in obtaining health care services. Double Referred: This bill has been double-referred to the Assembly Health Committee where it was heard on April 8, 2014, and passed out of the Committee on a vote of 13 to 6. REGISTERED SUPPORT / OPPOSITION : Support American Academy of Pediatrics American Federation of State, County and Municipal Employees, AB 2325 Page 17 AFL-CIO California Communities United Institute California Medical Association California Pan-Ethnic Health Network City and County of San Francisco Congress of California Seniors Health Access California National Association of Social Workers, California Chapter Planned Parenthood Affiliates of California United Domestic Workers of America, AFSCME Local 3930 Western Center on Law and Poverty Opposition National Right to Work Committee Analysis Prepared by : Karon Green / P.E., R. & S.S. / (916) 319-3957