BILL ANALYSIS Ó
AB 2325
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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
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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
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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.
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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
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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
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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
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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.
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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
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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
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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
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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
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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
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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
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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
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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
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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,
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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