BILL ANALYSIS Ó
SENATE COMMITTEE ON HEALTH
Senator Ed Hernandez, O.D., Chair
BILL NO: AB 389
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|AUTHOR: |Chau |
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|VERSION: |June 2, 2015 |
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|HEARING DATE: |June 17, 2015 | | |
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|CONSULTANT: |Vince Marchand |
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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
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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
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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 :
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|Assembly Floor: |77 - 0 |
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|Assembly Appropriations Committee: |17 - 0 |
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|Assembly Health Committee: |18 - 0 |
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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
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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
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.
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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
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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
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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
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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
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