BILL ANALYSIS                                                                                                                                                                                                    Ó

                          Senator Ed Hernandez, O.D., Chair

          BILL NO:                    AB 389    
          |AUTHOR:        |Chau                                           |
          |VERSION:       |June 2, 2015                                   |
          |HEARING DATE:  |June 17, 2015  |               |               |
          |CONSULTANT:    |Vince Marchand                                 |
           SUBJECT  :  Hospitals: language assistance services.

           SUMMARY  :  Requires hospitals to post, on their Internet Web sites, their  
          language assistance policies, as well as a notice of the  
          availability of language assistance services in English and in  
          up to the five other languages most commonly spoken in the  
          hospital's service area. Also requires the Department of Public  
          Health and the Office of Statewide Health Planning and  
          Development to post each hospital's language assistance policy  
          on their Internet Web sites. 

          Existing law:
          1)Licenses general acute care hospitals under the Department of  
            Public Health (DPH).

          2)Establishes the Office of Statewide Health Planning and  
            Development (OSHPD), and designates OSHPD as the single state  
            agency to collect specified health facility or clinic data for  
            use by all state agencies.

          3)Requires general acute care hospitals, in order to ensure  
            access to health care information and services for  
            limited-English-speaking or non-English-speaking residents and  
            deaf residents, to adopt and annually review a policy for  
            providing language assistance services to patients with  
            language or communication barriers (language assistance  

          4)Defines "language or communication barriers," for purposes of  
            the language assistance policy with respect to spoken  
            language, as barriers that are experienced by individuals who  
            are limited-English-speaking or non-English-speaking  
            individuals who speak the same primary language and comprise  


          AB 389 (Chau)                                       Page 2 of ?
            at least 5% of the population of the geographical area served  
            by the hospital. With respect to sign language, a language or  
            communication barrier is experienced by individuals who are  
            deaf and whose primary language is sign language.

          5)Requires a hospital's language assistance policy to include  
            procedures for providing, to the extent possible, the use of  
            an interpreter whenever a language or communication barrier  
            exists, except when the patient, after being informed of the  
            availability of the interpreter service, chooses to use a  
            family member or friend who volunteers to interpret.

          6)Requires a hospital's language assistance policy to be  
            designed to maximize efficient use of interpreters and  
            minimize delays in providing interpreters to patients, and to  
            ensure, to the extent possible, that interpreters are  
            available, either on the premises or by telephone, 24 hours a  

          7)Requires hospitals to annually transmit to the DPH a copy of  
            the updated language assistance policy and to include a  
            description of its efforts to ensure adequate and speedy  
            communication between patients with language or communication  
            barriers and staff.

          8)Requires hospitals to post notices in conspicuous locations  
            that advise patients and their families of the availability of  
            interpreters, the procedure for obtaining an interpreter, and  
            the telephone numbers where complaints may be filed concerning  
            interpreter service problems. Requires these notices to be  
            posted, at a minimum, in the emergency room, the admitting  
            area, the entrance, and in outpatient areas. Requires these  
            notices to list the languages for which interpreter services  
            are available.

          9)Requires hospitals to prepare and maintain a list of  
            interpreters who have been identified as proficient in sign  
            language and in the languages of the population of the  
            geographical area serviced by the hospital.
          This bill:
          1)Requires a general acute care hospital to make a notice of  
            availability of language assistance services available to the  
            public on its Internet Web site. Requires this notice to be in  
            English and up to the five other languages most commonly  


          AB 389 (Chau)                                       Page 3 of ?
            spoken in the hospital's service area.

          2)Requires a general acute care hospital to annually file with  
            OSHPD its language assistance policy.

          3)Requires a general acute care hospital, DPH, and OSHPD to make  
            updated language assistance policies available to the public  
            on their respective Internet Web sites.

          4)Requires DPH, if another technology emerges that takes the  
            place of Internet Web sites, to direct hospitals, via the  
            adoption of regulations, to make the language assistance  
            policy and notice of the availability of language assistance  
            services available through the subsequent technology. Requires  
            DPH and OSHPD to also make the language assistance policies  
            available through subsequent technology if another technology  
            emerges that replaces Internet Web sites.

          EFFECT :  According to the Assembly Appropriations Committee,  
          this bill would have minor and absorbable one-time costs to DPH  
          and OSHPD for programming and policy development, as well as  
          ongoing minor, absorbable costs for updating and management.

          VOTES  :  
          |Assembly Floor:                     |77 - 0                      |
          |Assembly Appropriations Committee:  |17 - 0                      |
          |Assembly Health Committee:          |18 - 0                      |
          |                                    |                            |
          COMMENTS  :
          1)Author's statement.  According to the author, this bill aims  
            to require DPH and OSHPD to post hospital language assistance  
            policies online. Specifically, this bill will require  
            hospitals to make language assistance policies available on  
            their websites, in English and up to the five other most  
            commonly spoken languages in the hospital's service area, and  
            to file copies with OSHPD, which collects and disseminates  
            information on California's healthcare system. Thus, both  


          AB 389 (Chau)                                       Page 4 of ?
            OSPHD and DPH would be required to post hospital language  
            assistance information online. This bill will provide greater  
            transparency and oversight of a key accountability measure  
            serving the needs of limited English proficient patients by  
            making policies available online.
          2)Hospital information spread across two state agencies. Under  
            existing state law, DPH licenses and regulates all health  
            facilities, including hospitals, and conducts inspections both  
            for state licensing purposes, and on behalf of the Centers for  
            Medicare and Medicaid Services (CMS) to ensure hospitals can  
            continue to be an approved provider under federal payment  
            programs. On DPH's website, there is a link for the "Consumer  
            Information System," which includes information about  
            administrative penalties levied against hospitals, penalties  
            for breaches of patient confidentiality, and a map of  
            infection rates by hospital.

          OSHPD has oversight over the construction and modification of  
            health facility buildings, including ensuring compliance with  
            seismic safety laws, and also serves as the data collection  
            entity for many different types of hospital reports, including  
            discharge data reports and summary financial reports. OSHPD  
            has a "Healthcare Information Division," which includes  
            quality reports on hospitals (such as risk-adjusted outcome  
            reports), hospital financial reports, patient discharge  
            reports, emergency department encounters, ambulatory surgery  
            reports, and a number of other types of reports. OSHPD also  
            collects and publishes each hospital's fair pricing policy, as  
            well as their community benefit plans.

          3)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, within the Medi-Cal program, about 8.1% of adults had  
            difficulty understanding their doctor and/or needed another  
            person to help them understand their doctor, and about 7.4% of  
            parents of children under the age of 12 in the Medi-Cal  
            program had difficulty understanding the child's doctor and/or  
            needed another person's help to understand the doctor. 


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          4)Federal anti-discrimination law. 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 limited English  
            proficiency (LEP), pursuant to Title VI of the Civil Rights  
            Act of 1964. The OCR policy guidance requires recipients of  
            federal assistance to take reasonable steps to ensure  
            meaningful 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  

               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.


          AB 389 (Chau)                                       Page 6 of ?
            CMS states there is no "one size fits all" 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.

          5)Related legislation.  AB 635 (Atkins), would establish the  
            Medi-Cal Medical Interpretation services program at the  
            Department of Health Care Services (DHCS) to provide and  
            reimburse for certified medical interpretation services to  
            limited English proficient Medi-Cal enrollees. AB 635 is set  
            for hearing in this committee on June 24, 2015.

          6)Previous legislation. AB 2325 (John A. Pérez, 2014), would  
            have required 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, to establish  
            a certification process and registry of CommuniCal  
            interpreters at DHCS, and granted CommuniCal interpreters  
            collective bargaining rights with the state.  AB 2325 was  
            vetoed by the Governor.

          AB 1263 (John A. Pérez, 2013), was substantially similar to AB  
            2325.  AB 1263 was vetoed by the Governor.

          AB 2392 (John A. Pérez, 2012), was substantially similar to AB  
            1263 and AB 2325, 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 (Ron Calderon, 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 the  

          SB 1405 (Soto, 2006) would have required DHCS to create the Task  
            Force on Reimbursement for Language Services to develop a  


          AB 389 (Chau)                                       Page 7 of ?
            mechanism for seeking federal matching funds from CMS to pay  
            for language assistance services. SB 1405 was placed on the  
            Senate inactive file.

          AB 800 (Yee, Chapter 313, Statutes of 2005), required all health  
            facilities (hospitals, skilled nursing facilities,  
            intermediate care facilities, and 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), required 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.
          7)Support.  This bill is sponsored by the California Pan-Ethnic  
            Health Network (CPEHN), which states that California's  
            population is one of the most diverse in the country,  
            especially with respect to language needs. CPEHN states that  
            with the implementation of the federal Affordable Care Act,  
            the majority of those newly eligible for health care coverage  
            will be from communities of color and 40% of those newly  
            eligible for subsidies in Covered California will be limited  
            English proficient. CPEHN states that thirty years ago,  
            California policy makers had the foresight to require language  
            assistance in hospitals, and required each hospital to  
            annually adopt and report to DPH a policy for providing  
            language assistance to limited English proficient patients.  
            However, CPEHN states that instead of submitting these reports  
            to a centralized location, hospitals currently submit their  
            policies and procedures on paper to their respective DPH  
            Licensing and Certification District Office, which maintain  
            hard copies of these policies. Any member of the public  
            seeking to view a hospital's language assistance policy must  
            make the request at the district office. CPEHN states that  
            having the policies spread out makes it difficult for  
            policymakers and the public to access them, verify compliance,  
            and ensure adherence to the appropriate protections and  
            practices set forth by law.

          This bill is supported by numerous organizations. The Western  
            Center on Law and Poverty states in support that making  
            policies available online delivers greater oversight and helps  
            ensure limited English proficient patients have access to  
            information already guaranteed by the law. The Latino  


          AB 389 (Chau)                                       Page 8 of ?
            Coalition for a Health California states in support that  
            failure to provide language access can lead to serious  
            consequences such as higher rates of hospitalization, drug  
            complications, and not returning for follow-ups after an  
            emergency room visit. Asian Health Services states that  
            adequate language assistance is essential to accessing basic  
            health care services, and the current law is outdated and  
            lacks the oversight to ensure limited English proficient  
            patients understand their right to language assistance when  
            accessing hospital services.
          8)Technical and clarifying amendment. This bill requires that  
            hospitals post a notice of the availability of language  
            assistance services on their websites in English and in "up to  
            the five other languages most commonly spoken in the  
            hospital's service area." The use of the phrase "up to" makes  
            this provision unclear, and could be interpreted to give  
            hospitals the flexibility to post the notice in fewer than  
            five other languages, even when there are a significant number  
            of people speaking a particular language. Conversely, this  
            could be interpreted to require hospitals to publish the  
            notice in five other languages, even if the 4th or 5th  
            language is spoken by only a handful of people. Existing law  
            defines "language or communication barriers" as barriers that  
            are experienced by individuals "who speak the same primary  
            language and who comprise at least 5% of the population of the  
            geographical area served by the hospital." The author and  
            sponsor state that the intent of this bill is to only require  
            a hospital to post a notice in a language other than English  
            if it meets this 5% threshold, up to a minimum of five other  
            languages.  The author may wish to consider an amendment to  
            clarify this requirement by incorporating the 5% threshold in  
            the definition of language or communication barriers.

          9)Author's amendments on implementation date. The author intends  
            to offer amendments to require the initial posting of the  
            policies on the Internet to be on or before July 1, 2016, for  
            the hospitals, DPH, and OSHPD. Thereafter, the hospitals, DPH,  
            and OSHPD would be required to post the updated policies on  
            January 1st of each year.
          Support:  California Pan-Ethnic Health Network (sponsor)
                    Advancement Project


          AB 389 (Chau)                                       Page 9 of ?
                    American Cancer Society Cancer Action Network
                    American Federation of State, County and Municipal  
                    Employees, AFL-CIO
                    Asian Americans Advancing Justice - Los Angeles
                    Asian and Pacific Islander American Health Forum
                    Asian Health Services
                    Asian Law Alliance
                    California Commission on Asian and Pacific Islander  
                    American Affairs
                    California Communities United Institute
                    California Healthy Nail Salon Collaborative
                    California Immigrant Policy Center
                    California Rural Legal Assistance Foundation
                    California State Council of the Service Employees  
                    International Union
                    Community Health Partnership
                    Consumers Union
                    Having Our Say
                    Health Access
                    Justice in Aging
                    Language Care/United Way of Merced County
                    Language World Services, Inc.
                    Latino Coalition for a Healthy California
                    National Council of Asian Pacific Islander Physicians
                    San Francisco General Hospital and Trauma Center
                    Southeast Asia Resource Action Center
                    The City Project
                    The Greenlining Institute
                    Union of Pan Asian Communities
                    Union of Pan Asian Communities - Positive Solutions  
                    Western Center on Law and Poverty
                    Numerous individuals
          Oppose:   None received
                                      -- END --



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