BILL ANALYSIS Ó SENATE COMMITTEE ON HEALTH 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 policy). 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 day. 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. FISCAL 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. PRIOR 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. AB 389 (Chau) Page 5 of ? 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 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. 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 Governor. 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 AND OPPOSITION : Support: California Pan-Ethnic Health Network (sponsor) AARP 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 Program Western Center on Law and Poverty Numerous individuals Oppose: None received -- END -- AB 389 (Chau) Page 10 of ?